Evan Williams Construction Co., Inc.

EVAN WILLIAMS CONSTRUCTION CO., INC. Evan Williams Construction Co., Inc. and Morris Robinson. Case 21-CA-11716 December 28, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 31, 1973, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel filed a brief in answer to Respondent's exceptions. '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 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.2 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, Evan Williams Construction Co., Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 In the absence of any exceptions, we adopt, pro forma, the Administra- tive Law Judge's recommendation that our remedial order make no provisions for employee Robinson's reinstatement DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was tried at Los Angeles, California, on June 20 and 25, 1973.1 The charge was filed on April 13, by Morris Robinson, an individual. The complaint issued on May 22, and as amended on June 7 and at the hearing, alleges that Evan Williams Construction Co., Inc., herein called I All dates are in 1973, unless otherwise specified 2 The transcript of the record is hereby corrected 15 Respondent, violated Section 8(axl) and (3) of the National Labor Relations Act, as amended. Issues The primary issues are: Whether Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Morris Robinson between March 15 and 19 and by permanently discharging him on April 19 because he sought to enforce a collective-bargaining agreement and sought assistance from a union; and whether Respondent violated Section 8(a)(1) of the Act by threatening to discharge employees because they engaged in protected activity. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-exammne witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respondent. Upon the entire record2 of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged as a general contractor in the building and construction industry in Los Angeles, California, with its principal place of business at 9419 South San Pedro Street, Los Angeles, California. Respondent annually performs services valued in excess of $50,000 for the city of Los Angeles, California, which city annually purchases and receives materials valued in excess of $50,000 directly from suppliers located out of California. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and I find that Laborers' Union Local 300, Laborers' International Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events 1. Background and the alleged threat to discharge employees Respondent, a construction contractor, is a signatory to a collective-bargaining agreement with the Union. During early 1973, Respondent was doing demolition work in connection with a remodeling job at the Elisa Village project in east Los Angeles. On January 31, Respondent 208 NLRB No. 11 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested the referral of a construction laborer from the Union and Morris Robinson was sent by the Union to the job. Another construction laborer who had been referred by the Union, Major Dodson, was put on Respondent's payroll at about that time. Both M. Robinson and Dodson were members of the Union. When M. Robinson and Dodson received their pay- checks in early February, they saw that the paycheck stubs did not indicate any deductions for pension and welfare payments that were due under the contract. In addition, the stubs did not indicate any payment for overtime which they had worked.3 On a Monday morning in early February, M. Robinson and Dodson went into the office of Evan Williams to speak to him about this matter. Evan Williams and Fred McCrumbly were present. Williams is the principal of Evan Williams Construction Co., Inc., and McCrumbly is the superintendent on the job. Both are supervisors within the meaning of the Act .4 M. Robinson told Williams that they had been working more than 8 hours a day and had only been paid for 8 hours a day. He also said that the paycheck stubs did not show anything being taken out for health and welfare or pension benefits. Williams told them that they were troublemakers and that he was going to fire them. However, McCrumbly intervened with Williams and neither M. Robinson nor Dodson were discharged.5 2. The first discharge In February and March, M. Robinson was having difficulty cashing his paychecks. On one occasion he cashed a check at the Mini Mart Grocery Store. That check was returned to Mini Mart for insufficient funds with a slip debiting the Mini Mart bank account for the amount of the check. Thomas Nix, Jr., the owner of the grocery store, told M. Robinson that he couldn't cash his checks anymore because Respondent would not honor them. M. Robinson went to McCrumbly and complained that his checks were bouncing. McCrumbly told him that at certain times there were not enough funds in the bank. On March 12, M. Robinson asked for and received the day off and went to the bank upon which Respondent's checks were drawn. The president of the bank told him that he couldn't cash a check because there weren't sufficient funds. At that time Robinson had several uncashed checks. 3 This finding is based on the credited testimony of M Robinson which was in large part corroborated by Dodson, Though Evan Williams, the principal in Respondent, introduced evidence that pension and welfare contributions were eventually made on behalf of M Robinson and Dodson for February, there is no credible evidence in the record to shed doubt on M Robinson's assertion that the pay stubs failed to show those payments and that overtime was not paid at that time. 4 The complaint alleges, the answer admits, and I find that Williams is a supervisor within the meaning of Section 2(11) of the Act and an agent of Respondent The uncontradicted testimony of M Robinson establishes that McCrumbly both hired and fired employees I find that McCrumbly is a supervisor within the meaning of Section 2(11) of the Act 5 These findings are based on the credited testimony of M Robinson which was corroborated in large measure by the testimony of Dodson Williams, though he did not mention it in his testimony, made a closing statement in which he denied calling anyone a troublemaker Williams testified that at this meeting Robinson and Dodson asked for more money and he explained what his budget was I credit M. Robinson 6 These findings are based on the credited testimony of M. Robinson, W. Robinson, and Thomas Nix, Jr The testimony of those three witnesses was He went back to the job and told McCrumbly that he was still having trouble cashing his checks. He also told McCrumbly that if he couldn't cash them anywhere else he would have to go to the Union to cash them. On March 14, M. Robinson went to the union office and the Union cashed one of his checks. The following day, March 15, at 6:30 p.m., McCrumbly fired M. Robinson. McCrumbly told M. Robinson that he was a good worker but he (McCrumbly) was going to have to let him go and that M. Robinson should not have gone to the Union. In addition, McCrumbly said that M. Robinson had started trouble by going to the Union. The next day, Friday, March 16, M. Robinson called the Union's field representative, Willie Robinson, and told him the circumstances of his discharge. W. Robinson said that he would check it out. On Monday, March 19, W. Robinson called Williams and asked him about M. Robinson's paycheck. Williams told him that it was a lie and that he didn't have any bad checks. W. Robinson replied that he would go to the market and pick up the check. W. Robinson then went to Mini Mart and spoke to Nix. Nix told him that he did have trouble with the check but that he had redeposited it and did not have possession of it. W. Robinson then went to Williams' office and spoke to Williams about the matter. Williams said that he would make the check good. Williams also complained to W. Robinson that M. Robinson had gone to the Union about the problem rather than seeing him directly. W. Robinson replied that M. Robinson had spoken to the supervisor. W. Robinson specifically asked why M. Robinson had been terminated and Williams replied: "I don't have no use for a son of a bitch that will go to the Union." At that point W. Robinson insisted that M. Robinson be reinstated and Williams agreed to take Robinson back. M. Robinson went back to work on March 19.6 3. The second discharge When M. Robinson was reinstated on March 19, Williams told him that he (M. Robinson) was the new labor foreman. As the labor foreman, M. Robinson did not have power to hire, fire, or recommend hiring or firing, but he did become responsible for writing in the time that other people on the job worked.? There is no contention that M. Robinson was a supervisor within the meaning of the Act. both independently credible and mutually corroborative Much of it was uncontradicted Williams testified that he had an overdraft at the bank, but he also acknowledged that he could not say whether there were sufficient funds in his account at all times to cover all the checks he wrote and that he couldn't answer whether some of Robinson's checks had bounced or not. Williams pointed to the fact that none of M. Robinson 's cancelled checks had "insufficient funds" stamped on them However , the credible evidence of M Robinson , W Robinson and Nix clearly establishes that M Robinson was having difficulty with at least one paycheck. In addition, it is noted that Dodson credibly testified that he had two paychecks that bounced and had to be redeposited 7 This finding is based on the credited testimony of M Robinson. Williams testified that he never told M Robinson that he was a labor foreman. Employee W. B. Roberts testified that Williams told him that McCrumbly was in charge of the project and that no one other than M. Robinson told him that M Robinson was a foreman The testimony of W B Roberts was not necessarily inconsistent with that of M Robinson. If M Robinson was told by Williams that he was a labor foreman , M Robinson may have been the one who passed that information to other employees As between M Robinson and Williams , I credit M. Robinson, EVAN WILLIAMS CONSTRUCTION CO., INC. 17 Under the contract, the labor foreman's position is to be paid 50 cents an hour above the amount paid to laborers. Though M. Robinson was made a labor foreman on March 19, he did not receive the 50-cent-an-hour incre- ment. On Friday, April 6, he went to Respondent's office and complained to the timekeeper that he had not received the extra pay for being a labor foreman. The timekeeper replied that he hadn't heard anything about M. Robinson's being a foreman. The timekeeper then told him to get out and that he seemed to be wanting to start trouble.8 The next working day was Monday, April 9, and M. Robinson was scheduled to report to work at 8 a.m. At 6 a.m. that morning McCrumbly came to where Robinson lived, gave him a check, and told him that work was slow, there had to be a layoff, and that he (M. Robinson) was laid off. Dodson credibly testified that at the time of M. Robinson's layoff, there was still work available for M. Robinson to do. Dodson worked for about 2 weeks after M. Robinson was discharged and then he, too, was discharged. Williams testified that M. Robinson was laid off solely because the project had reached a point where his work was no longer needed. According to Williams, construction laborers were hired for the single job they were working on and as the work was completed they were laid off. I credit Williams' assertion that M. Robinson was hired for the particular job at the Elisa project, but I do not credit his assertion the M. Robinson's work was no longer needed at the time of his discharge. Dodson was doing similar work and was in a position to see what work was left to be done. Dodson credibly testified that after M. Robinson's dis- charge, he had to work some overtime. I credit Dodson over Williams.9 B. Analysis and Conclusions In early February, M. Robinson and Dodson com- plained to Williams concerning the failure of the paycheck stubs to indicate withholding for welfare and pension, as well as the lack of overtime pay. That protest was a protected activity under Section 7 of the Act, whether it is viewed as the initial informal airing of a grievance under the contract or as a concerted protest relating to terms and conditions of employment. By first telling them that he was going to discharge them and then revoking that discharge, Williams was in effect threatening to discharge them because they were engaging in that activity. Such a threat interferes with the rights guaranteed to employees under Section 7 of the Act and violates Section 8(a)(1) of the Act. I therefore find that Respondent violated Section 8(a)(1) of the Act by threatening to discharge M. Robinson and Dodson because they engaged in activities protected by Section 7 of the Act. Respondent discharged M. Robinsonlon March 15 and did not reinstate him until March 19 because M. Robinson went to the Union to cash a paycheck. Williams admitted to field representative W. Robinson in their conversation 9 These findings are based on the credited testimony of M Robinson The timekeeper did not testify. Dodson, who was also present, averred that the timekeeper told Robinson to go home and also told him that they would talk about it the following week. Dodson did not mention the "troublemak- on March 19 that that was the reason. As W. Robinson credibly testified, Williams told him, "I don't have no use for a son of a bitch that will go to the Union." In discharging M. Robinson for that reason, Respondent violated Section 8(a)(1) of the Act by interfering with M. Robinson's right to engage in concerted activity .and violated Section 8(a)(3) of the Act by discouraging membership in the Union. Respondent executed a collective-bargaining agreement with the Union and sought the referral of employees through the Union. Thus it appears that Respondent does not bear an animus toward the Union in itself. However, Williams' conduct indicates that he has a strong resent- ment against anyone who even questions his way of doing business. Thus, when M. Robinson and Dodson raised the paycheck stub and overtime issues, he threatened to fire them. Later, when M. Robinson went to the Union to cash a paycheck because of his problems with the negotiability of those checks, Williams did fire him. M. Robinson was reinstated only upon the intervention of the Union. This background must be viewed in evaluating the reason behind the discharge of M. Robinson on April 9. On the workday preceding the discharge, M. Robinson com- plained to the timekeeper that he was not being paid the 50-cent-an-hour differential due under the contract to labor foremen. The timekeeper did not know about M. Robinson's designation as a labor foreman, but as the keeper of the records it would be his duty to keep those records accurate. The inference is warranted that the timekeeper related this incident to higher management if for no other reason than to check on M. Robinson's claim. On the following working day, McCrumbly sought M. Robinson out 2 hours before he was scheduled to work and told him that he was laid off. That layoff falls in the same type of pattern as the prior threat and discharge. In all three situations, employees questioned William's proce- dures and Williams struck out against them. M. Robinson's attempt to enforce the contract by securing the 50-cent-an- hour wage differential was an activity protected by Section 7 of the Act. Under these circumstances, I believe that the General Counsel has established a prima facie case that Robinson was discharged on April 9 because of his attempt to enforce the contract by securing the 50-cent-an-hour wage differential. Respondent defends with a claim that M. Robinson was discharged solely because there was no work available for him to do. As found above, I have credited Dodson's testimony to the contrary and discredited Williams' testimony in that regard. I therefore find that Respondent interfered with M. Robinson's rights under Section 7 of the Act and discouraged membership in the Union in violation of Section 8(a)(1) and (3) of the Act by discharging him because he sought enforcement of the contract. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, er" part of the conversation, but I credit M. Robinson with regard to his assertion in that regard. 9 It is noted that McCrumbly, who as job superintendent would have known what work was left to be done, did not testify 18 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD above, occurring in connection with the operations of Respondent described 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent terminated the employ- ment of M. Robinson on March 15 and did not reinstate him until March 19, and thereafter prematurely discharged him on April 9 when there was work available for him to do, thereby violated Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent be ordered to make M. Robinson whole for any loss of pay resulting from those discharges by payment to him of a sum of money equal to the amount he normally would have earned as wages from Respondent between March 15 and 19 and after April 9, less net earnings during that period. Such backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent, as provided in Isis Plumbing & Heating Co., 138 NLRB 716.10 It is further recommended that Respondent be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. Respondent 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 meaning of Section 2(5) of the Act. 3. By discharging Morris Robinson on March 15 and refusing to reinstate him until March 19 because he sought assistance from the Union in cashing his paycheck, Respondent violated Section 8(a)(3) of the Act. ' 4. By discharging Morris Robinson on April 9 because he sought to enforce Respondent's contract with the Union, Respondent violated Section 8(a)(3) of the Act. 5. By the foregoing conduct and by threatening to discharge employees because they questioned Respon- dent's failure to list pension and welfare payments on check stubs and its failure to pay overtime pay, Respon- dent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER i i Respondent, Evan Williams Construction Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate, or otherwise discriminate against any employee because that employee seeks assistance from the Laborers' Union Local 300, Laborers' International Union of North America, AFL-CIO, in cashing a paycheck or because that employ- ee seeks to enforce its contract with the Union. (b) Threatening to discharge employees because they question its failure to list pension and welfare payments on check stubs and its failure to pay overtime pay. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Make Morris Robinson whole for his loss of earnings in the manner set forth in the section of this Decision 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 records necessary to analyze the amount of backpay due. (c) Post at its place of business at 9419 South San Pedro Street, Los Angeles, California, and at all jobsites where it is currently working, copies of the attached notice marked "Appendix." 12 Copies of the notice on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 10 The General Counsel's brief requests that an order issue requiring backpay to M Robinson, but there is no request for a reinstatement order It thus appears that the General Counsel is satisfied that the job for which M Robinson was hired has now been completed I shall therefore not recommend a reinstatement order ii 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 12 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 " EVAN WILLIAMS CONSTRUCTION CO., INC. 19 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the recommended Order of an Administrative Law Judge of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial at which all sides had a chance to give evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The 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 mutual aid or protection; To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against any employee because that employee seeks assistance from the Laborers' Union Local 300, Laborers' International Union of North America, AFL-CIO, in cashing a paycheck or because that= employee seeks to enforce our contract with that Union. WE WILL NOT threaten to discharge employees because they question our failure to, list pension and welfare payments on check stubs and our failure to pay overtime pay. WE WILL make Morris Robinson whole by paying him backpay with interest at 6 percent. Dated By EVAN WILLIAMS CONSTRUCTION CO., INC. (Employer) (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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.