Robert Martin Construction Co., Inc.

ROBT MARTIN CONSTRUCTION CO Robert Martin Construction Co., Inc. and Jethro Pinkston. Case 13-CA-13071 October 30, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 24, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Robert Martin Construction Co., Inc., Chicago, Illinois, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASF THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held at Chicago, Illinois, on June 7, 1974, on complaint of the General Counsel against Robert Martin Construction Co., Inc., herein called the Respon- dent or the Company. The charge was filed by one Jethro Pinkston on March 8, 1974, and the complaint issued on April 30, 1974. The sole issue of the case is whether the Respondent discharged Pinkston on March 7, 1974, be- cause he engaged in statutorily protected union activity, thereby violating Section 8(a)(3) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is engaged in 429 the construction of various types of industrial and com- mercial buildings, and maintains its principal office and place of business in Chicago, Illinois. During the past cal- endar year, a representative period, in the course of its business it provided goods and services valued in excess of $50,000 to various enterprises, including Jewel Companies, Inc., such enterprises being directly engaged in commerce within the meaning of the Act. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that Laborers International Union of North America, Local 1 and Local 6, AFL-CIO, are labor organi- zations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICE A. The Case in Brief The Respondent carries on entirely union jobs, and in February 1974 was building a large structure to house two new stores for a single-company customer. On February 25, it hired Pinkston, a member of Local 6 of the Laborers International Union of North America. Pinkston is a la- borer, and, according to the testimony of Charles Phifer, the cement foreman and timekeeper on the job, was taken on to do "anything nonskilled." He was concededly a com- petent workman, used here primarily for "getting ground ready for pouring," and grading poured concrete. Pinkston worked 6 days during the week February 25 through March 2, and only 4 days the following week. On Thurs- day, March 6, at 4 p.m., a half hour before quitting time, he was discharged without advance notice All the foreman told him, when giving him the hastily prepared check in payment for 4 days, was: "Okay. This is it." The theory of the complaint is that Pinkston was dis- missed in punishment for a complaint he pressed the day before, on Wednesday, and again the day he was fired. The men are paid on Wednesday noon for work performed the previous week. When the checks were distributed during the lunch period on March 6, Pinkston noticed he had not been paid at the doubletime rate for work performed on the 4 separate days the earlier week during the established 12 o'clock 30-minute lunch period. When concrete is being poured, work cannot be interrupted and the men therefore eat later. This had happened and it seems Pinkston had eaten quickly within 10 minutes an hour or two later on each of those four occasions. As he construed the union rules and the joint union contract then in effect, Pinkston said he was entitled to be paid doubletime for each of the 30 minutes of work performed instead of relaxing with his lunch at noon each day. In fact, because he did not use 30 minutes those days for his lunch, he was paid for each of the four half hours at a rate of time and a half, as though it had been pure overtime. The difference between time and a half and doubletime for those 2 hours of work was exact- ly $6.90. He argued with various supervisors about this both on March 6 and 7, before the discharge. 214 NLRB No. 61 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent denies this was its motivation . In affir- mative defense it asserts Pinkston was discharged only be- cause there was not enough work to keep him on longer. B. Evidence and Conclusion Considering all the relevant evidence received, I find that Pmkston was discharged because he persisted in press- ing upon the Respondent his reading of the collective-bar- gaining agreement and brought the Union into the picture to enforce what he deemed his contract right. Three on- the-job supervisors testified for the Respondent in support of the assertion Pinkston was dismissed only because of lack of work . These were George Prude, labor foreman, Phifer, the cement foreman ; and George Quebbman, su- perintendent, and while they all articulated the conclu- sionary statement about lack of work, each of them disas- sociated himself from the discharge by saying he had noth- ing to do with the decision to reduce the force, or to select Pinkston instead of anyone else. Thus, asked was Pinkston laid off for "lack of work," Quebbman answered , "That's what I thought ." But he then added that, as to the decision to reduce the force , he was not involved in it at all: "Q• Do [did] you have anything to do with the decision to let a worker go because you didn't need them? The witness: No. Somebody else had to . I was at another meeting when this whole thing developed ." Foreman Phifer started by saying he did not remember if he had made the decision , and then that he "supposed" Prude, Robert Martin , the company president, or Quebbman "could have" made it. He also said : "I didn't have anything to do with it but I could have." On cross-examination , Phifer then added Pinkston, in arguing for his claim to doubletime , had said ' ". . . that we were-he said that we all was stupid and didn't know what we was talking about as far as the hour, lunch hour, were concerned and the rate of pay." Phifer reported all of this to the lady in charge of the office and asked her to verify with the Union. And finally, came the following: Q: Is that the reason that Mr. Pinkston got fired? A. No. Q: Was that one of the reasons? A: One thing, I would say this; if I'm going to be in charge of a man , I've got to have discipline. Q: So you wanted to maintain discipline? It's im- portant to do that? A: It's important . That's what I'm saying. The testimony of Foreman Prude is the most revealing of all. He said Martin was at the jobsite that day and made the critical decision: Q: Now, will you tell the Court why he was dis- charged that day') A: Lack of work. Q: Was anything said to him at that time that he was complaining about the checks as to why he was fired? A: Well, he said-in the office he was, you know, complaining every week about his check , you know. Again, still from Prude's testimony: Did . . . isn't it true that Mr . Martin told you to fire Mr. Pinkston because he was complaining? A: He said-Mr. Martin said that if you got trou- ble out of him in the office every time he gets paid, Just going to get rid of it. A collateral and implied defense to all this is that Pink- ston was not entitled to double pay for working during the lunch hour. The union contract, received in evidence, is by no means clear on the point. And even Pinkston agreed, at the hearing, that the various locals of the Laborers Interna- tional see this question differently. He is a member of La- borers Local No. 6 and apparently the Respondent does business directly with Local No 1. Indeed , the confusion was so great that when finally JoAilean Hays , the office secretary, thought she had it straight and gave Pinkston the disputed money by adding it to his discharge check, she overpaid him by about $12.i But the determinative ques- tion here is not the merits of Pinkston 's complaint or griev- ance-which is the more correct way of characterizing his dispute with management-but rather whether an employ- er may discriminate against a man because he exercises, or attempts to exercise, the right to turn to his union for pro- tection of what he conceives to be conditions of employ- ment. Interboro Contractors, 157 NLRB 1295 ( 1966), enfd. 388 F .2d 495 (C.A. 2, 1967). An employee has a right to urge a grievance in any case , not only in the situation where it is finally decided his position was correct. On Wednesday, Pinkston told Foreman Prude the check was wrong ; Phifer was present and the three of them start- ed figuring with a pencil. Willie Bell, another laborer, was present, and he got into the act with his own check, believ- ing Pinkston to be right . Foreman Phifer called the office for the girl to check with the Union ; she called Local 1, and got some kind of an answer. In the foreman 's presence Pinkston then tried to get his own union on the phone, Local 6, but the office was closed . The next day Quebbman was on the job, Bell had him meet Pinkston , and again Pinkston, now with the union contract in his hands, took the matter up with the superintendent . The disagreement continued; as Phifer recalled it, Prude told him Pinkston was "all over him [Quebbman]." Clearly Quebbman was annoyed by all this. This is the morning Martin was pre- sent, but his version of the events is missing . In the middle of the shift in the afternoon at about 2 p.m., Prude called the office for Pinkston's check, a laborer was taken off the job while on the clock to go get it, he came back soon, and before quitting time Pinkston was sent home without ex- planation . The next day he went to the Labor Board's Re- gional Office and filed a charge. After receiving the charge, the Respondent answered with an explanatory letter by Miss Hays, assistant bookkeeper and admitted agent of the Company In it she wrote: Mr. Pinkston was discharged because he was caus- ing conflict on the jobsite with other employees by i The contract gave Pmkston $6 90 per hour base pay For the first week of his employment he was paid time and a half for work performed during the rout 30-minute lunch periods, the sum of $20 70 If his claim for more were correct he was entitled to $6 90 more When Hays added to Pmkston's separation check what she thought was the disputed amount, she added about $20, which at the hearing she called $2008 overpayment It is not possible to reconcile these figures , in fact, in her recapitulation of the mathematics in her March 27, 1974, letter to the Labor Board in response to the charges in this case, Hays set out a still different set of figures ROBT. MARTIN CONSTRUCTION CO calling them asinine for being employees of our com- pany. Upon termination, he stated that he was due an additional two hours of which was paid at the over- time rate of time and one half, although not owed. At the hearing Hays admitted that what she wrote in this letter "in reference to his being discharged" represents what she was told by others as to the reason for Pinkston's dismissal. I conclude that by discharging Pinkston on March 7, 1974, the Respondent violated Section 8(a)(1) and (3) of the Act.2 Against this compelling evidence of illegal motivation, the defense contention of discharge for cause-lack of work-stands inadequately proved on the record and is unconvincing. Pinkston was an unskilled man but could do any kind of laborer's work. He was helping to pour con- crete and to grade it during the critical Thursday. On this particular assignment there then were also Prude, the fore- man, Willie Bell, Harris, and another laborer. The next day, March 8, Harris and Bell continued to work, Prude was there, another man-one Bennie, according to the un- contradicted testimony of Bell-was shifted to that partic- ular chore of pouring concrete, and a laborer named Mel- vin, who had worked there "on and off" previously, but not on Thursday, did the same work Pinkston had been doing. More significant, however, is the vacillating and vague tes- timony of the superintendent, Quebbman First he said that by March 7 the pouring of the foundations "was all completed. The building was up " He then explained the entire concrete floor had not yet been poured, not until after March 7, and that the pouring of the concrete was not finished until "Probably the third to fourth week in March " Prude's testimony is in accord- the Company "still had to pour lots" of concrete, "we were over half ' finished. The floor space of the area under construction was about 455 by 185 feet. Here and there the company witnesses commented that employment on its projects of this kind normally has people coming and going as the need varies, they said Pinkston was a "temporary" employ- ee anyway This contention lost all meaning when Fore- man Phifer said: "All construction workers more or less are temporary." I do not think it can be said on this record that Pinkston was discharged for lack of work that week. Interwoven with the explicit defense of discharge for lack of work there appears also a concomitant argument that he was released because he caused trouble on the job, "conflict" among the men, called people "asinine" for working for the Respondent. This from the testimony of Hays, the office lady, who said she heard it from the boss- es. But all three of the supervisors who testified said they heard Pinkston say nothing detrimental about the Compa- ny and that he did not cause conflict. As to the asinine business, I credit Pinkston's statement at the hearing that he does not know what the word means In any event, "It is obvious that concerted activities which are protected by the Act often create a disturbance in the sense that they create dissatisfaction with the status quo " Such a fact 2 Enduro Metal Products Co, Inc, 160 NLRB 1411 (1966) 431 without more can hardly justify discharge. Salt River Val- ley Water Users' Association v N L. R. B , 206 F.2d 325 (C.A. 9, 1953) IV. THE REMEDY The Respondent, having committed unfair labor practic- es, must be ordered to cease and desist from such conduct and take appropriate action designed to effectuate the poli- cies of the Act. It must offer Jethro Pinkston immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges. It must also make him whole for any loss of earnings suffered in consequence of the illegal discharge. F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. By discharging Jethro Pinkston on March 7, 1974, for engaging in concerted and protected union activities, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 2. The aforesaid unfair labor practice is an unfair labor practice within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER3 The Respondent, Robert Martin Construction Co., Inc., Chicago, Illinois, its officers, agents, successors, and as- signs, shall. 1 Cease and desist from. (a) Discharging or in any other manner discriminating against its employees because of their concerted or union activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-orga- nization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act- (a) Offer to Jethro Pinkston immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Jethro Pinkston whole for any loss of pay or 3 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 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any benefit he may have suffered by reason of the Respondent's discrimination against him. (c) Preserve and, upon request, make available to the Board or its agent, 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 under the terms of this Order. (d) Post at its place of business and office in Chicago, Illinois, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by the Re- spondent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith 4In 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found, after a trial, that we violated the Federal law by discharging an employee because he engaged in concerted activities and union activities has ordered us to post this notice: WE WILL offer Jethro Pinkston full reinstatement and pay for his earnings lost as a result of our March 7, 1974, discharge, plus 6-percent interest. WE WILL NOT discharge or discriminate against any employee for engaging in concerted or union activi- ties. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. ROBERT MARTIN CONSTRUC- TION CO., INC.