MacDonald Engineering Co.

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MacDonald Engineering Co. and William E. Kamin- ski. Case 38-CA-1411 March 26, 1973 DECISION AND ORDER On August 14, 1972, Administrative Law Judge' William J. Brown issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief supporting the Decision. The Board has considered, the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 1. The Administrative Law Judge found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee William E. Kaminski because of his protected activities in attempting to enforce the contract between Respondent and the Union. At the hearing, when Kaminski and Union Business Agent Newell were cross-examined, Re- spondent's counsel, over the objections of the General Counsel z asked some general questions as to their knowledge of the contract's grievance-arbitration provisions. Kaminski's answers suggested he was not familiar with these contract terms. Newell stated basically that Respondent was not a member of the Contractors Association before which such matters were taken and could not recall any specific clause which protected anyone other than stewards from discrimination because of their action in enforcing the contract. When presenting its own case, Respon- dent offered no testimony relative to the grievance- arbitration procedure. Nor did Respondent seek the admission of the contract into evidence or urge the Administrative Law Judge to defer to arbitration. In its brief to the Judge, Respondent again made no argument for deferral. The Judge decided the case on the merits and made no reference to arbitration in his Decision. In its exceptions to the Board, Respondent, citing Collyer Insulated Wire,3 urges for the first time that it was error for the Administrative Law Judge not to have deferred the dispute to arbitration. Respondent specifically contends that the collective-bargaining agreement between it and the Union provides for binding arbitration of any grievance at the request of I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 In arguing in support of his objection, the General Counsel stated It gets to be clear to me that they intend to raise some problem whether this should be handled as grievance or as an unfair labor practice, and I don't think this line of testimony with this witness goes to that issue If they wish to raise it, they can do it with their own party and it will be lot simpler and shorter, and it is beyond the scope of this either party. Accordingly, Respondent now argues that the Board should defer. On the record before us, we find no merit in Respondent's contention. As noted, although the subject of the availability of machinery for arbitration of this matter as it related to Kaminski was broached at the hearing, at no time did Respondent specifically assert that the Adminis- trative Law Judge should have deferred. Further- more, the record is unclear regarding the arbitrability of a grievance by an employee such as Kaminski,4 and just what powers an arbitrator would have under the contract. While these questions may have been answered had such issues been litigated at the hearing, this was not the case. We therefore conclude that the record evidence before us is insufficient for a finding that deferral is warranted.5 2. On the merits, the record reveals that at all times relevant, Respondent has been doing work on a fob which extends over a 10-acre site and which has required the employment of about 100 employees from the various crafts including Laborers' Local Union 1203, Laborers International Union of North America, hereinafter referred to as the Union. Although the agreement between Respondent and the Union was not put in evidence, it apparently prohibits the general foreman on the job from giving orders directly to the laborers, and requires that a labor foreman be appointed for giving orders to such employees on each specific crew. Nevertheless, General Foreman Ted Myers handled a crew of laborers himself which included Kaminski, a union member. Frequently other foremen would assign a laborer from Myers' crew to ajob different from the one which Myers had assigned him. This often caused the laborer to have to explain why he was not performing the job to which he initially was assigned. As a result, the members of Myers' crew were confused as to the identity of their foreman. On February 24, 1972, Kaminski discussed the problem with Union Business Agent Newell. He was informed that Newell had previously warned Myers not to handle a crew himself. Newell promised Kaminski he would go out on the job and straighten out the problem. On the following morning before beginning work, Kaminski met with the other crew members and told them of his conversation with Newell and that Newell would come out to the job and straighten the problem out. Nevertheless, some men felt Myers witness 3 192 NLRB No 150 4 In this regard, General Counsel, in its briefs to the Administrative Law Judge and to the Board, argues the contract protects only stewards (which Kaminski was not) from discharge for attempting to enforce the contract 5 For reasons stated in their dissenting opinions in Collyer and subsequent cases , Members Fanning and Jenkins would not, in any event, defer to arbitration in this case 202 NLRB No. 113 MACDONALD ENGINEERING CO 749 should be told to place each laborer under a labor foreman. Kaminski agreed to do so. Kaminski relayed the group decision to Myers stating "we are violating our agreement by you giving us orders and us taking orders, so appoint us a foreman." Myers insisted however that Newell had approved of the existing practice (of Myers directly supervising a crew). On Saturday of the same week, Kaminski again visited Newell and discussed what had occurred on the job. As a result Newell went to the jobsite on the following Monday. According to Newell, when he talked to Myers, the latter stated: I want to tell you this. Bill Kaminski popped off to me about my giving him orders. Newell went on to tell Myers that as a supervisor he (Myers) could not give orders and that he (Newell) had told Kaminski that Kaminski did not have to take orders from anyone but a labor foreman.6 While he was at the site, Newell also talked to Edwin C. Brown, the superintendent of the project, and complained that too many orders were being given by the general foreman. Brown agreed to hire a substitute foreman. Later that afternoon Kaminski passed where Myers and Foreman John Bland were standing together. Kaminski was stopped by Myers who asked "Are you happy now?" (or "Are you satisfied?" as admitted by Myers). According to Kaminski, when he replied in the affirmative and asked why, Myers stated "I am not your boss any more. John Bland is your boss now. He's going to give you your orders. Does that make you happy?" Kaminski's testimony regarding the conversation was corroborated by Bland. Shortly prior to March 1, 1972, Brown had become aware of the fact that certain ironworkers had been leaving their jobs early. Through the respective stewards, he warned all crafts that the early quitting would have to cease. Although the end of the workday was 4:30, the existing practice was to permit the employees to quit early enough to reach the parking lot by, but not before, 4:15. It appears that the only signal the employees had to inform them of quitting time was the arrival of the tool truck which comes to the area to pick up the tools employees use. During the afternoon of March 1, it rained lightly from time to time. At about 3:30, heavier rain forced Kaminski and his fellow laborers to leave their jobs and seek shelter in a nearby powerhouse. None of the employees returned to work. When the tool truck arrived at the pier where Kaminski was working, he helped load the truck and thereafter, along with several other laborers, left the pier, turned in his identification brass, picked up his lunch bucket, and followed some 10 or 15 other employees toward the parking lot. According to Kaminski, when he arrived at the parking lot shortly after 4 o'clock, he saw that Brown was already there. When Kaminski got into his car and started out of the lot after having waited for a truck which was unloading other employees to move behind him, he was stopped by Brown. Brown asked if Kaminski were quitting and Kaminski said he was quitting on account of the rain. Brown asked for his hard hat and told him since he was quitting not to report for work on the following day. Kaminski protested, pointing out the fact that he was not quitting but that it was raining and everybody else had quit for the day. When Kaminski reported to work on the following day, the steward told him he was wanted in Brown's office. When he and the steward got there, Brown stated Kaminski had quit early on the preceding day and no longer worked for Respondent. He told the steward to get Kaminski off the site. While Kaminski was waiting for his pay he had a conversation about the discharge with Foreman Bland. According to Kaminski, Bland stated, "I know you weren't quitting there any earlier than either of the other guys. I figured something like this would happen because of what you said to Ted [Myers]." Bland admitted having the conversation with Kaminski and recalled having said (regarding the discharge) "Well I think maybe it is something that you jumped on Ted [Myers] about giving orders to the men." Newell was unsuccessful in his efforts to get Brown to immediately put Kaminski back to work. The Judge found that on the day in question, Kaminski did nothing more than follow the custom and practice in leaving work when he did. He concluded that Kaminski was in fact discharged because of his militance in enforcement of the labor agreement and the customs and practices grown up in the administration of the agreement, as well as his insistence on the assignment of a foreman, and, under the circumstances, was discharged in reprisal for his participation in and leadership of concerted activities in furtherance of the employee demand that a labor foreman be assigned to direct the laborers' work. We agree. The record discloses a practice by which employees were permitted to leave work upon the arrival of the tool truck and to arrive at the lot about 4:15. The facts further show, as found by the Judge, that Kaminski and others, consistent with such practice, started homeward upon the arrival of the tool truck. Although Kaminski along with others arrived at the 6 It appears that sometime in 1971 Myers had sought unsuccessfully to clear the Union as a labor foreman 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lot a few minutes before 4:15 on the day in question, we note the fact that no other employee returned to work after the rain, and Kaminski was the only person singled out for discharge despite Foreman Bland's statement to Brown that Kaminski was one of the best workers in his gang. Furthermore Myers' expressed hostility toward Kaminski's "popping off" in efforts to enforce that portion of the contract which called for appointment of a labor foreman for Kaminski's crew resulted in Respondent's having to hire an additional foreman. Thus, in view of Respondent's disparate treatment of an employee whose work was highly valued by his foreman, against the background of Respondent's knowledge 7 of Kaminski's concerted protected activities and hostility thereto, we believe the reason asserted for Kaminski's discharge is a pretext and that the real reason was his attempts to have Respondent adhere to contract terms. We also view as evidence of discriminatory motivation Brown's adamant refusal to honor Newell's request that Kaminski be rehired even though, according to Newell, Brown admitted Kaminski was a good worker. The severe penalty of discharge for leaving a few minutes early at a time everyone had quit because of the rain and its occurrence only a few days after Kaminski's effort on behalf of the Union is additionally indicative of a retaliatory motive. Accordingly, we agree with the Judge that Respondent discharged Kaminski in violation of Section 8(a)(3) and (1) of the Act. 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 Administrative Law Judge and hereby orders that Respondent, MacDonald Engi- neering Company, Oglesby, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 7 We find without merit Respondent's contention that at the time he fired Kaminski , Brown had no personal knowledge of Kaminski 's efforts to enforce the contract The record clearly shows that Kaminski insisted upon the laborers' contract rights when he as spokesman for the crew insisted that Myers appoint a labor foreman for the laborers present As Myers was found to be a supervisor , the law is well settled that the knowledge of a supervisor is imputed to the employer See Protective Coating Inc. 170 NLRB 647 Moreover, Bland's statement to Kaminski almost immediately after Kaminski was discharged that he believed the discharge resulted from Kaminski's statement to Myers indicates a general awareness among supervisors that Kaminski was engaged in protected activities While the Judge made no specific finding on Bland's status , the record shows he uses independent judgment in assigning the 12 laborers in his crew to different tasks, is responsible for timekeeping and seeing that the work is properly done , evaluates work performance, and selects employees for lay off Accordingly , we find that he is a supervisor within the meaning of the Act and that his knowledge of Kaminski's activities is also imputable to Respondent 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 LaSalle, Illinois, on May 25, 1972.1 The underlying charge of unfair labor practice was filed March 3 by the above-indicated Charging Party and the complaint herein was duly issued April 7, by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 38. It alleged, and the duly filed answer of the above-captioned Respondent, hereinafter sometimes referred to as the Company , denied, the commission of unfair labor practices defined in Section 8(a)(3) and (1) of the Act. At the hearing, the parties appeared and participated 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 THE COMPANY The pleadings and evidence establish and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Delaware and engaged in the design and construction of industrial plants. During the 12-month period preceding issuance of the complaint herein, admittedly a representative period, the Company performed services valued in excess of $50,000 in States other than the State of Illinois and caused to be delivered to its Illinois jobsites goods valued in excess of $50,000 and transported to such jobsites directly from points outside the State of Illinois. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED It appears from a stipulation of the parties and the evidence that the labor organization herein involved, Laborers' Local Union 1203, Laborers' International Union of North America, hereinafter sometimes referred i Dates hereinafter, unless otherwise indicated, relate to the calendar year 1972 MACDONALD ENGINEERING CO. 751 to as the Union , is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case concerns events occurring in the course of the Company's work on additions and alterations to the Marquette Cement Company plant at Oglesby, Illinois, a job which extends over 10 acres and which, on March 2, called for the employment of about 100 workmen of the various crafts. The company supervisors on the job included Superintendent Edwin C. Brown, admittedly a supervisor, and General Labor Foreman Ted Myers. Myers seldom performs manual work , assigns laborers to different tasks, and has authority to transfer laborers, grant time off, and effectively recommend adjustments in rates of pay as well as selections for layoffs. I find that Myers is a supervisor within the purview of Section 2(11) of the Act. Kaminski, the Charging Party herein, was a member of the Union and employed on the Marquette jobsite; his duties included concrete work, jackhammer operation, and torch burning . About a week before his discharge, a question arose concerning the practice which had devel- oped of laborers assigned to work for Myers being taken off their assignment by other foremen to perform different tasks than those assigned them by Myers. The situation was described by Kaminski as one in which the laborers did not know who their foreman was at certain times. Kaminski consulted Union Business Agent Ralph Newell, concerning this situation. Newell informed Kaminski that Myers was not allowed to give direct orders to the laborers. On Friday, February 25, Kaminski met with a group of fellow laborers and informed them of Newell' s statement. The group met at lunch and decided to demand that Myers assign a labor foreman to direct their work; when they asserted this demand, Myers replied that the local union business manager, Newell, had approved the existing practice. Notwithstanding this position of Myers, a new labor foreman was assigned the group on the following Monday, February 28. Sometime shortly prior to March 1, Brown had become aware of a practice on the part of certain ironworkers of leaving their work early; on that date he advised employees in all crafts, through their stewards, that early quitting would have to stop. It appears that the existing practice on the job in question was to permit employees to quit work at a time to permit them to reach the parking lot by, but not before, 4:15. The end of the workday was 4:30. Kaminski testified that on March 1, a day of heavy rain at times, the Laborers steward, Doutch, warned the laborers against early quitting inasmuch as Brown had been after the Ironworkers for early quitting. He advised the laborers not to reach the parking lot until 4:15. At 3:30, according to Kaminski's account, he and his fellow laborers left their jobs and went to the power house for shelter at 3:30 to await the arrival of the tool truck, which apparently, according to custom and usage, marked the end of their worktime and the commencement of their homeward courses. Kaminski followed the tool truck, turned in his identification brass, rode on the electrical contractors truck to the parking lot, and got in his own car and was pulling out of the lot when Brown stopped him and asked if he was quitting. Kaminski said that he was quitting on account of the rain . Brown then asked for his hardhat and told him not to report on the following day. Notwithstanding this last order, Kaminski did report the following day only to be paid off and discharged for early quitting. The testimony of Kaminski that Myers, some 2 weeks prior to his discharge , told him that quitting time is when the tool truck arrives is only indirectly denied by Myers who said that he talked to Kaminski in the period in question only once and about another subject . I credit Kaminski's account and find that on the day of his discharge he did no more than follow custom and practice. It is my conclusion that Kaminski was in fact discharged because he had become somewhat of a militant advocate in asserting the employees ' rights to be governed by the provisions of the contract covering their employment including the usages, customs, and practices which had grown up in administration of the agreement, and including the practice of leaving their work when the tool truck arrived at the scene of their operations . I conclude that Kaminski was in fact discharged because of his militance in enforcement of the labor agreement and the customs and practices grown up under it as well as his insistence on the assignment of a foreman which insistence brought the business agent to come to the job and caused the assignment by the Company of a foreman for the crew in which Kaminski worked . The discharge of Kaminski under the circumstances appears to me to have been in reprisal for his participation in, and leadership of, concerted activities in furtherance of the employee demand that a labor foreman be assigned to direct the laborers' work and as such constituted an unfair labor practice within the scope of Section 8(a)(3) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair practices occurring in connection with the business operations of the Company as set forth in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof. V. THE REMEDY In view of the findings , set forth above, to the effect that the Company has engaged in unfair labor practices affecting commerce , it will be recommended that it be required to cease and desist therefrom . N.L.R.B. v. Entwistle Mfg. Co., Inc., 120 F.2d 532 (C.A. 4). I will also recommend that the Company be required to take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act, including the payment of backpay to Kaminski computed in accordance with the remedial relief policies enunciated in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It was stipulated that Kaminski was reinstated on April 3. The posting of an appropriate notice is required. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing findings of fact and upon (d) Notify the Regional Director for Region 38, in the entire record in this case, I make the following: writing, within 20 days from receipt of this Decision what CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning 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. By discharging its employee William Kaminski in reprisal for his participation in concerted activities on behalf of the Union, the Company has engaged in unfair labor practices within the scope of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I hereby issue the following recommended: 2 steps have been taken to comply with the terms hereof.4 2 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, 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 3 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 4 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 38, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or any other labor organization of its employees by discharging or otherwise discriminating against employees because of their participation in concerted activities in furtherance of collective bargaining and employee mutual aid and protection. (b) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Make employee William E. Kaminski whole for loss of earnings in the manner set forth in the section above entitled "The Remedy." (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, personnel records and reports, and all other record necessary to analyze and give effect to the backpay requirements thereof. (c) Post at its office at the Oglesby jobsite copies of the notice attached hereto and marked "Appendix." 3 Copies of said notice, on forms provided by the Board's Regional Director for Region 28 shall, after being duly signed, be posted immediately upon receipt thereof and maintained by the Company thereafter for a period of 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that said notices are not altered, defaced, or covered by any other material. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT discourage membership in or activity on behalf of Laborers Local Union 1203 or any other labor organization of our employees by discharging or otherwise discriminating against them in violation of the National Labor Relations Act, as amended. WE HAVE reinstated William E. Kaminski and paid him backpay to make him whole for loss of wages during the period he was unlawfully discriminated against. WE WILL NOT in any manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. MACDONALD ENGINEERING Co. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061.