California Pacific Signs, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Pacific Signs, Inc. and Lee Washington and Benjamin Bussey. Cases 20-CA-10797 and 20- CA- 11643 November 14, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 12, 1977, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Respondent also filed for hearing de novo and/or a motion to reopen the record and the General Counsel filed an opposition to Respondent's motion. 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, find- ings,' and conclusions of the Administrative Law Judge, and to adopt his recommended order as modified herein. Respondent has moved the Board for a hearing de novo on the grounds that it was denied due process because it was not represented by counsel at the hearing. Alternatively, Respondent has requested that the Board reopen the record to enable it to introduce evidence establishing the supervisory status of alleged discriminatee Robert Fisher, and to show that Respondent does not meet the Board's jurisdictional standards. We find no merit in Respondent's argument that it was denied due process because it was not represent- ed by counsel and that it is therefore entitled to a new hearing. Prior to the hearing the Board, on several occasions, apprised Respondent of its right to be represented by counsel at such hearing. Thus, on November 10, 1975, and again on November 19, 1975, in Case 20-CA-10797, Respondent received letters from the Board's Regional Office advising it of its right to be represented by counsel. A similar letter was also sent on June 30, 1976, in Case 20-CA- 11643. In addition, a copy of the Board's "Summary of Standard Procedures," advising Respondent of its 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, 233 NLRB No. 98 right to counsel, was attached to the consolidated complaint in this proceeding which was forwarded to Respondent. Respondent was also granted a contin- uance of approximately 6 weeks to enable its owner and president, Walter Fehr, to obtain legal advice from his son, who has a legal background. In light of the above, we find that Respondent was adequately apprised of its right to counsel, and that Respon- dent's decision to be represented by its owner and president, Walter Fehr, rather than by legal counsel, constituted a knowing and intelligent waiver of that right.2 To find otherwise would, in essence, allow every respondent which opts to represent itself to get the proverbial second bite at the apple when faced with an unfavorable decision simply by claiming that it was denied due process because it was not represented by counsel at the hearing. This we find is not a denial of due process. Accordingly, Respon- dent's motion for a new hearing is hereby denied. We also deny Respondent's request that the record be reopened so that it may introduce evidence to establish Fisher's asserted supervisory status. Section 102.48(d)(1) of the Board's Rules and Regulations, Series 8, as amended, permits a party to a Board proceeding, because of extraordinary circumstances, to move for a reopening of the record. It further provides, however, that only newly discovered evidence, evidence which has become available only since the close of the hearing, or evidence which the Board believes should have been taken at the hearing will be taken at any further hearing. The evidence upon which Respondent relies, i.e., the affidavits of its president, Wally Fehr, and those of two former employees, Karl Davis and Larry Luz, contain no newly discovered evidence or evidence not previous- ly available at the hearing which warrants a reopen- ing of the record. Respondent does not assert that Davis and Luz were unavailable to testify at the hearing. Indeed, Fehr and Davis were both present and testified on behalf of Respondent. Moreover, the issue of Fisher's alleged supervisory status is one which Respondent could have, and clearly should have, litigated at the hearing. Indeed, on direct examination General Counsel questioned Fisher concerning his alleged supervisory status, and Re- spondent, through Fehr, cross-examined Fisher on certain other aspects of Fisher's authority. Thus, Respondent had every opportunity to develop fully its position concerning this issue but failed to do so. Moreover, Respondent's answer to the complaint does not allege that Fisher is a supervisor as a Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Tred-Air of California, Inc., 193 NLRB 672 (1971); see also Air Transport Equipment, Inc.. 190 NLRB 377(1971). 450 CALIFORNIA PACIFIC SIGNS, INC. defense to the 8(a)(3) allegation concerning him. In these circumstances, we find that the issue respecting Fisher's asserted supervisory status is untimely raised. Accordingly, Respondent's motion to reopen the record for the purpose of establishing Fisher's supervisory status is denied.3 As to Respondent's contention that it does not meet the Board's jurisdictional standards, we find that Respondent has, in its amended answer to the complaint, admitted to the Board's jurisdiction over it. Furthermore, Respondent did not raise this issue at the hearing, nor does it now seek to adduce previously unavailable evidence to support its con- tention. Therefore, in light of its admission, its failure to raise the issue at the hearing, and its failure to come forward with newly discovered or previously unavailable evidence to support its claim, we shall deny Respondent's motion to reopen the record for that purpose. Finally, Respondent argues that the reinstatement of the charge in Case 20-CA-10797, more than 10 months after the alleged unlawful discharge of Lee Washington, is time barred by Section 10(b) of the Act. Respondent points out that the charge was initially filed by Washington on November 10, 1975, alleging that he was unlawfully discharged on September 18, 1975. On February 3, 1976, the charge was dismissed and on March 17, 1976, the dismissal was affirmed by the General Counsel in Washington, D.C. Thereafter, on August 6, 1976, based on newly discovered evidence concerning Washington's dis- charge, the General Counsel reinstated the charge in Case 20-CA-10797. Thus, Respondent argues that the reinstatement of that charge is barred by Section 10(b) of the Act. We disagree. Section 10(b) of the Act provides that no complaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing of a charge with the Board. This section, however, relates only to the actual filing of charges and, once a charge has been timely filed, the control over, and disposi- tion of, that charge is vested exclusively with the General Counsel pursuant to Section 3(d) of the Act. The General Counsel thus has virtually unlimited discretion to proceed on such timely filed charges as he deems fit4 and, in the absence of a showing of abuse of the discretion, the Board will not interfere with General Counsel's exercise thereof. This is not to suggest that a charging party may file a charge, voluntarily withdraw it, and subsequently reinstate it more than 6 months later. Indeed, the Board in Koppers Company, Inc.,5 found that Section 10(b) of the Act barred reinstatement of a charge by a charging party more than 6 months after the alleged unfair labor practice occurred where the charging party, pursuant to a private settlement agreement with respondent union, voluntarily withdrew the charge. Unlike the charge in Koppers, the charge here was neither voluntarily withdrawn by the Charging Party nor reinstated at the Charging Party's request. Rather, the General Counsel, relying on newly discovered evidence, exercised the discretionary authority given to him by Section 3(d) of the Act and reinstated the charge. As previously stated, the Board will not interfere with the General Counsel's exercise of his discretionary authority unless it can be shown that such authority was abused. Respondent here has not alleged, much less proved, that the General Counsel, in reinstating the charge, abused his authority. In the absence of such proof, we find the reinstatement of Washington's charge was proper and not time barred by Section 10(b) of the Act. Accordingly, we shall dismiss Respondent's excep- tion. 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 as modified below and hereby orders that the Respon- dent, California Pacific Signs, Inc., San Francisco, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following paragraph for para- graph 2(a): "(a) Reinstate Lee Washington, Stephen Cox, Benjamin Bussey, and Robert Fisher to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses they may have suffered in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)" 2. Substitute the attached notice for that of the Administrative Law Judge. 3 Rock Hill Convalescent Center, 226 N LR B 881 (1976): Brooklyvn Nursing Home, Inc. d/b/a Sassaquin Convalescent Center. 223 NLRB 267 (1976). 4 See Silver Bakery Inc. of Newton, 150 NLRB 421 (1964). 5 163 NLRB 517(1967). 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any other manner discriminate against employees because of mem- bership in or activities on behalf of Sign, Display & Allied Crafts Local Union No. 510, AFL-CIO, or any other labor organization, because they engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or because they file charges or give testimony under the National Labor Rela- tions Act, as amended. WE WILL NOT threaten employees with termina- tion because they persistently engage in union or other concerted activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the National Labor Relations Act, as amended. WE WILL reinstate Lee Washington, Stephen Cox, Benjamin Bussey, and Robert Fisher to their former positions of employment or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and pay them for any loss of earnings incurred since being last terminated, plus interest. CALIFORNIA PACIFIC SIGNS, INC. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard in San Francisco, California, on March 15 and 16, 1977, based on a consolidated complaint issued September 15, 1976, and amended February 25, 1977, alleging that California Pacific Signs, Inc., called Respon- dent, violated Section 8(a)(1), (3), and (4) of the Act by telling an employee he would not be allowed to engage in union activities, threatening an employee with termination if he persistently engaged in union or other concerted activities for purposes of collective bargaining or other mutual aid or protection, discharging Lee Washington on September 18, 1975, because of his membership in or activities on behalf of Sign, Display & Allied Crafts Local I Respondent Corporation maintains an office and place of business in San Francisco, California, where it is engaged in erecting and servicing outdoor advertising signs, annually selling goods and services valued in excess of $50,000 directly to customers located outside C(alilbrnia. I find it is Union No. 510, AFL-CIO, herein called the Union, or because he engaged in other concerted activities for purposes of collective bargaining or other mutual aid or protection, and/or because he filed charges with the Board, or gave testimony under the Act, and, during the May-June 1976 period, by discharging Stephen Cox, Benjamin Bussey, and Robert Fisher because of their membership in or activities on behalf of the Union or because they engaged in other concerted activities for purposes of collective bargaining or other mutual aid or protection. Upon the entire record, my observation of the witnesses, and consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT AND RESULTANT CONCLUSIONS OF LAW Lee Washington had been employed from 1970 until January 1975, becoming over this period a leadman for sign construction and occasional bill poster.' In January 1975, Washington contacted the Union and one other labor organization respecting the prospect of representing Respondent's employees. During a meeting of assembled employees held January 17, 1975, Walter F. Fehr, Respon- dent's president, stated that their continued interest in collective representation would cause him to lease out all operations. Washington was discharged 3 days later, after which he returned to duty as a helper on July 16, 1975, as part of settlement undertakings in NLRB Case 20-CA- 9918. Fehr advised him upon such return that work would be arduous, and 2 months later Washington was terminat- ed with the following explanatory writing: 9-18-75 Lee Washington, Due to the increase selling emphasis, I may miss you and if I do, you can call me on Friday but in lieu of not seeing you, I want to let you know, due to the crane being down and until we get reorganized for construc- tion, we will hold off on construction. If you want your check for the balance of the time you were here let the girls know and they will make out the check, otherwise, you can pick it up on the regular pay day. W. F. "Wally" Fehr P.S. This will be approximately 10 days to 2 weeks. Leadman Robert Fisher credibly testified that during July 1975, in connection with Washington's reinstatement, Fehr had resentfully remarked that Respondent would get rid of Washington at its first opportunity. Fisher added that around the time of the crane breakdown, Fehr had remarked the event would provide "an excuse" for him to be rid of Washington. an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5). 452 CALIFORNIA PACIFIC SIGNS, INC. In late April 1976, Washington happened across Benja- min Bussey and Stephen Cox as the latter two employees were engaged in sign construction using the crane Wash- ington had so frequently operated before.2 He engaged them in conversation respecting need for collective repre- sentation, and an agreement ensued that the three would visit union offices that evening. Ultimately Bussey and Cox met with Washington at the office of Union Functionary Art Paulo where benefits were explained. As it happened, Respondent soon gave written notice of brief temporary layoff starting May 3 to Bussey and Cox via Fisher. In the course of transmitting such information these individuals spoke together of their growing interest in collective representation and inquired of Fisher whether he would intermediate with Fehr respecting whether some type of "private contract" could be signed between Respondent and its employees. Fisher spoke with Fehr in the latter's office on May 5 concerning this subject, and was told that Respondent would "can" employees for continuing to seek such representation. Also on May 5, Respondent had abruptly sought to recall both Bussey and Cox but neither was personally available to resume work until the following day. On May 10 Cox, who had been hired originally in October 1975 as a bill poster and to perform other general duties, was laid off for a claimed "shortage." Cox testified that upon pressing for a more specific reason Fehr stated, "I told you guys from the gate that there was going to be no union activities going on in the shop."3 On June 2 Fehr terminated both Fisher and Bussey, stating to the former at the time that such action was "related to" the Union and to the latter that Respondent was through "futsing around" with employees who engaged in union activities. Immedi- ate background to these terminations is found in Fisher's credible testimony that on May 27 Fehr had demanded to know "by that coming Friday" what employees were going to do with regard to the Union. Respondent generally denies commission of any unfair labor practices and explains employee terminations as based on routine business considerations. Fehr testified that in 1975 a small business administration loan was received, the proceeds of which were used primarily to construct signs. Building on the prospects generated by this loan, Fehr employed various persons to lease sign locations and perform necessary construction. He described these activities as paramount during 1975, and by late that year construction work was diminishing with increasingly greater attention being given to sales. In regard to fulfillment of customer needs, Fehr testified that posting cycles frequently changed at the first of the month, causing greater need for bill posting services at this time until new advertisements were displayed. Other than this, early 1976 saw random utilization of four employees for whom at one period during late spring Fisher informally established a work schedule tending to distribute available hours with preference given to those having dependents. Fehr testified that he laid off Cox and Bussey early in May and June, respectively, based on reduced need for bill posters. 2 All dates and named months hereafter are in 1976. unless indicated otherwise. 3 Cox also recalled that in a long distance conversation with Fehr preceding his hire, the latter stated he must avoid engaging in union Additionally, he described the work performance of Cox as "slacking off," while Bussey was viewed less competent than young Dennis Washington. As to Fisher, Fehr testified that a periodic insurance request for driver's license verification led to composite information from Fisher and Linda Bracy of his household that he chose to voluntarily terminate his employment with Respondent. Respecting Lee Washington, Fehr asserted that his disin- terest in bill posting tasks cou:)led with limited construc- tion work caused his layoff to be indefinite in duration. As a general matter, Fehr denied ever discussing the subject of unions with any of the employees (excepting Cox before hire). Credibility is a significant factor in this case. I find each alleged discriminatee to be highly convincing, forthright, and accurate as a matter of recalling past conversations. Fehr's testimony was implausible, self-contradictory, and essentially unworthy of belief in most significant regards. General Counsel has established a prima facie case regarding this consolidated complaint. The credited utter- ances that are attributable to Fehr convincingly show that this individual, as sole managerial influence in Respon- dent's affairs, was sharply hostile toward any union activities among employees in general and toward Lee Washington in particular as a person reinstated pursuant to Board processes. I am mindful that human nature would result in some early discord between the returning Washington and Fehr, however, beyond the mere angry prediction that future duties would be arduous, the credited evidence shows that Fehr literally predicted Washington's early termination and that it would be specifically based on intent to retaliate for having accepted lawful entitlement to reinstatement. Respecting Cox and Bussey, each of these employees was performing adequate- ly and no plausible explanation is set forth as to why they were laid off while other individuals soon were newly hired. Respondent's version of Fisher's termination from employ- ment is singularly unworthy. Arlene Fehr's testimony is irrelevant on this point, while Linda Bracy credibly testified that her only communication on behalf of Fisher was to inquire when a check could be picked up on his behalf. I expressly find that Fisher had been involuntarily terminated before any inquiry as to his accumulated compensation, and that matters arose in this context rather than of a person quitting with plans to simultaneously claim various accumulated benefits. Noteworthy is the fact that Cindy Baumann, a witness called by Respondent, added nothing to its defense in this regard, and additional- ly failed to corroborate Fehr's contention that she necessarily would have had to have overheard any conversations adjoining her own office work area. Karl Davis, Respondent's second witness, testified only to generalized satisfaction with employment and lent no factual input toward issues of the case. Dennis Washing- ton, also called by Respondent, offered insignificant testimony except that of corroborating clandestine discus- activities to work for Respondent. I credit Fehr's denial that such an utterance was made, believing instead that Cox misconceived remarks made by Fehr that concerned only recent representation elections among employees 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions concerning the Union among employees during early May. Accordingly, I render as conclusions of law that Respondent, by discharging Lee Washington, Cox, Bussey, and Fisher because of their membership in or activities on behalf of the Union, because they engaged in other concerted activities for purposes of collective bargaining or other mutual aid or protection or, in the case of Lee Washington only, because he filed charges or gave testimony under the Act, after first threatening to cause such terminations, has engaged in unfair labor practices within the meaning of Sections 8(a)(1), (3), and (4) and 2(6) and (7) of the Act. 4 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: ORDER 5 The Respondent, California Pacific Signs, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because of membership in or activities on behalf of Sign, Display & Allied Crafts Local Union No. 510, AFL-CIO, or any other labor organization, because they engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or because they file charges or give testimony under the Act. (b) Threatening employees with termination because they persistently engage in union or other concerted 4 Respondent introduced several items of correspondence subsequent to the Cox, Bussey. and Fisher terminations tending to establish that offers of reemployment had been made. In at least the case of Bussey's letter dated September 10, it was shown to be patently spurious as this individual's personnel file physically contained the original of a letter purportedly sent at that time. This development of the hearing is one facet of what influences me to sweepingly discredit Fehr's testimony and I otherwise merely note existence of this material, leaving to the compliance stage any ultimate determination of efficacy. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the activities for the purposes of collective bargaining or other mutual aid or protection. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Reinstate Lee Washington, Stephen Cox, Benjamin Bussey, and Robert Fisher to their former positions of employment without prejudice to seniority or other rights and privileges, and make them whole as provided in F. W. Woolworth Company, 90 NLRB 289 1950, and Isis Plumb- ing & Heating Co., 138 NLRB 716 1962, for any loss of earnings incurred from being last terminated. (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 under the terms of this Order. (c) Post the attached notice marked "Appendix" at its San Francisco, California, place of business. 6 Copies of this notice, on forms to be provided by the Regional Director for Region 20, after being duly signed by an authorized representative, shall be conspicuously posted by Respon- dent immediately upon receipt and be maintained for 60 consecutive days thereafter in all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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. 6 In the event that this 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." 454