Asplundh Tree Expert Co.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Asplundh Tree Expert Company and International Union of Operating Engineers , Local 465, AFL- CIO. Cases 11-CA-5909 and 11-CA-5921 September 16, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 20, 1975, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this pro- ceeding. Thereafter, the 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 2 as modified herein. 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 as modified below and hereby orders that the Respondent, As- plundh Tree Expert Company, Raleigh, North Caro- lina, its officers, agents, successors, and assigns, shall i The Administrative Law Judge found that Area Supervisor Kelly ques- tioned employee Atkins, the leading union proponent, concerning union activities and asked Atkins which employees were trying to bring the Union in. He also stated to Atkins that he would discharge the employees who started the union "mess" if he found out who they were and warned Atkins against messing with the Union if he wished to keep his job The Adminis- trative Law Judge also found that a supervisor , Kearney, told employee Steins that Carolina Power and Light would lay off Respondent's employees who worked on Carolina Power projects if they got the Union in We find that such interrogation and threats were unlawful under Sec. 8 (a)(1) of the Act. The Administrative Law Judge in his recommended Order directed that Respondent cease and desist engaging in unlawful interrogation. He failed to include a similar provision covering the making of unlawful threats. We shall modify the order and notice to correct such omission 2 The Respondent attacks the recommended Order on several grounds. First, it claims that at most its discharge of Atkins, Algood, and Clark- assuming it was unlawful-merely accelerated their economic layoff by 2 weeks and, thus, that a usual reinstatement and backpay order is unwarrant- ed. However, there is some evidence that subsequent to the unlawful dis- charges Respondent hired employees in jobs such as those previously occu- pied by the dischargees. For that and other reasons we find that the issues raised here by the Respondent can best be resolved at the compliance stage of this proceeding. Second, Respondent claims that it should not be ordered to offer reinstatement to Algood and Clark because, as all parties have stipulated, it has already done so However, there is no stipulation or other evidence that Algood and Clark were offered full reinstatement as custom- arily required by the Board. Consequently, we find the usual reinstatement 220 NLRB No. 59 take the action set forth in the said recommended Order, as modified below: 1. Add the following as paragraph 1(b) and relet- ter the subsequent accordingly: "(b) Threatening its employees with discharge if they engage in union activities or otherwise support the Union." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. order for Algood and Clark is necessary and proper . The claims made here by Respondent concerning prior offers of reinstatement can, again , best be resolved at the compliance stage of this proceeding Finally, the Respondent claims Atkins should be demed reinstatement because at the time of his discharge he threatened to beat up Kelly. However, at the time of the inci- dent Kelly ignored the remark and there is nothing in the record to suggest Atkins really intended , much less that he actually attempted, to engage in any violence. His comment was clearly nothing more than a rough remark by a man under the stress of discharge and a wholly insufficient basis, we find, on which to deny Atkins his right to reinstatement. 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 otherwise discrimi- nate against any employee, for joining or assist- ing International Union of Operating Engineers, Local 465, AFL-CIO, or any other labor organi- zation, or for engaging in other activity protect- ed by the Act. WE WILL NOT unlawfully question employees about their union or protected concerted activi- ties. WE WILL NOT threaten our employees with being discharged if they engage in union activi- ties or otherwise support the Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of any right guaranteed under Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder. WE WILL offer Craig Algood, Justin Atkins, and John Bruce Clark immediate and full rein- statement to their former jobs, or if those jobs are not available, to substantially equivalent po- sitions, and make them whole for any loss of earnings they may have suffered as a result of our discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organiza- tion. ASPLUNDH TREE EXPERT COMPANY A DECISION STATEMENT OF THE CASE ASPLUNDH TREE EXPERT CO. It. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events IvAR H. PETERSON , Administrative Law Judge: I heard these cases in Raleigh, North Carolina, on March 20 and 21, which were based on charges, subsequently amended, filed by International Union of Operating Engineers, Local 465, AFL-CIO, herein called the Union, and the com- plaint, as amended at the hearing, issued by the Regional Director for Region 11.1 Briefly stated, the complaint al- leged that since on or about April 24, 1974, the Respondent had interfered with the Section 7 rights of its employees by questioning them concerning their union or other concert- ed activities, threatening them with discharge because of their union or concerted activities, and terminating three employees, (Craig Algood, Justin Atkins, and John Bruce Clark) on October 18, for the reason that they joined or assisted the Union or engaged in other union or concerted activities for the purpose of collective bargaining and mu- tual aid and protection. By such conduct, the complaint alleged that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 2(6) and (7) and 8(a)(1) and (3) of the Act. On Janu- ary 29, the Respondent filed its answer admitting certain jurisdictional allegations of the complaint and the supervi- sory status of the individuals so named in the complaint; however, the Respondent denied that it had engaged in any conduct violative of the Act. Upon the entire record in the case, and from my obser- vation of the witnesses as they testified and careful consid- eration of the briefs filed with me by counsel for the Gen- eral Counsel and the Respondent, on or about April 22, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a Pennsylvania corporation, is engaged in service work for public utilities. Only its Raleigh, North Carolina, location is involved in this proceeding. The Re- spondent admits and I find that it meets the jurisdictional standards of the Board and is engaged in commerce within the meaning of the Act; it is also admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. The following persons are admitted to have been supervisors within the meaning of Section 2(11) of the Act and occupied the positions following their names: George Kelly, area supervisor; Joseph Whitley, general foreman ; Kenneth Stewart, general foreman; Charles Murray, foreman; Otis L. Green, foreman. 1 The original charge in Case I I -CA-5909 was filed on October 23, 1974, and the charge in Case I I-CA-5921 was filed on October 30. The earlier charge was amended on November 19 and January 8 The order consolidat- ing the cases, and the complaint and notice of hearing were issued on Janu- ary 27. 353 At the time with which we are here concerned, the Re- spondent was performing work for the Carolina Power & Light Company, herein referred to as CP&L, clearing right- of-way for the installation of transmission lines. This work consisted of removing and trimming trees, limbs, shrub- bery, and other growth insofar as necessary in order to provide adequate clearance for the Respondent's lines. All the alleged discriminatees were working on the same crew engaged in the foregoing operations. Late in September Atkins called the president of the North Carolina AFL-CIO and arranged a meeting with a union organizer for the purpose of endeavoring to organize the Respondent's employees. Thereafter, employee meet- ings were held at the Holiday Inn in Raleigh. The first meeting was held on September 26 and thereafter every Thursday, with the last meeting being held on October 17. Atkins testified that in addition to himself three other fore- men, Jaffer Tyler, Otis Green, and Alan Perry attended these meetings . Atkins passed out some authorization cards and a pamphlet received from the Union. Atkins related that early in October he had a conversation with Kelly at a service station some 4 or 5 miles from Respondent's office. According to Atkins, Kelly asked him if he had heard any- thing about any union activities, to which Atkins replied in the affirmative and stated that he had been to union meet- ings. He further related that Kelly asked him which em- ployees were attempting to get the Union in but Atkins said he did not know all of them and did not give any names to Kelly. Thereupon, Kelly "told me that this state had a right to work law and he asked me did I know what the right to work law meant." Atkins testified that he an- swered he did not "exactly" know what it meant to which Kelly responded, so Atkins testified, "that means that if we find out you are going to start a mess about a Union, you can lose your job," and added that if he found out "who started this mess about the Union they are not going to have any job," and advised Atkins "if you want to keep your job I'd advise you don't mess with the Union." John Moore, who held the job of foreman at the time in ques- tion, testified that he told General Foreman Stewart "that the boys were trying to get the Union in" following the meeting of the employees at the service station, and specifi- cally mentioned Atkins. During the week ending October 12, employee Steins discussed the Union with Supervisors Kearney and Moore. According to Steins, Kearney said that CP&L "would lay us off if we . . . started to get the Union in." Later on the same day, Steins had a conversa- tion with Moore who stated that CP&L "would frown on a union and they would lay us off." The last union meeting among the Respondent's em- ployees was held on October 17. In addition to Supervisors Murray, Green, and Tyler, the following employees were present: Atkins, Algood, Clark, Perry, MacJones, Labing- er, and Steins. On the following day, October 18, all of these men other than Steins were laid off. Steins testified, without contra- diction, that he did not think Tyler knew him by name. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent adduced testimony to the effect that the October 18 layoff was necessitated, as was the earlier one in March and the succeeding one this past February, be- cause of the request from CP&L that the Respondent re- duce its personnel. Forester Massey, of CP&L, whom I called as a witness to identify a certain document, testified that, in the morning of October 15, he had a conversation with Area Supervisor Kelly in which he informed Kelly that CP&L "would continue to pay for the services of the log loader and the other matters, including wages for the crews necessary to operate the log loader, and the bombar- dier, until October 29." In his letter dated October 15 to Kelly, Massey stated that because of the "great lack of new work here in the Raleigh area, I believe we'd better have you remove 2 climbing crews, too," in addition to discon- tinuing operating the bombardier, because in his view CP&L would not "need so many climbing crews which have been doing the new work, in the main, as we ..." However, Massey did not mail the letter until October 22. Massey further related that, on October 14, Atkins came into the office and was told that CP&L "had no more work for the log loader to be done, that we had a open position in another crew and we asked him at that time if he would accept the position as a climber, temporarily, sir." To this, so Massey testified, Atkins said that he needed a day or two off to attend to some personal business and that he would advise Massey. Kelly testified that the October 18 layoffs were precipitated by directions from Massey. In this regard, he related that Massey told him that the Re- spondent would have to let certain crews go and that he would write Kelly a letter confirming the conversation. Ac- cording to Kelly, he received the letter "the last part of the following week," after having been informed by telephone from Massey, who was on vacation, that he had come into the office on Tuesday and had forgotten to mail the letter. Kelly stated that he told Massey that he had already "tak- en care of the cuts." Kelly, when asked whether he had any knowledge as to any union activity engaged in by any of the three alleged discriminatees prior to their layoff on October 18, an- swered that he "had no factual information." If this answer means that he knew nothing about any employee having engaged in union activity, I do not believe it. As previously related, Tyler admitted that he discussed the union activi- ties of the employees with all the foremen and supervisors, and that Otis Green, who had been employed by the Re- spondent prior to October 18, when he was laid off, testi- fied that he had attended union meetings, and had spoken to General Foreman John Boykin thereafter. Green, in re- sponse to a question whether he told Boykin that he had been at a union meeting, replied, "Oh, he knowed that, I didn't have to tell him." Charles Murray, who had been employed by the Respondent during September and Octo- ber, testified that he attended more than one union meet- ing and, in a conversation with General Foreman Joe Whitley, concerning the meeting at the service station, stat- ed that he thought it had to do with the Union. Whitley, so Murray testified, asked him what he thought about the matter, to which Murray replied that he had never been a member of a union but that, if it would help the men, he was in favor of it. Foreman John Moore testified that, dur- ing the week ending October 11, he had a conversation with Steins concerning the Union, in which Steins stated that he was going to a union meeting, Moore testified that he replied, "I told him I was not having anything to do with it, that I didn't want no part of it." He also testified that he told General Foreman Stewart "that the boys were trying to get the Union in," and that he named Atkins in that connection. General Foreman Kearney testified that there was talk about the Union's organizing effort among the employees, about the time that the meeting at the ser- vice station was held. We turn now to a consideration of the alleged superviso- ry status of Atkins. Until October 14 or 15, Atkins was classified as "log loader foreman," at an hourly rate of $4.10 an hour. The acknowledged supervisory foremen were paid $4.64 an hour. With the exception of an 11-week layoff following mid-March 1974, Atkins worked continu- ously for the Respondent and, after about the first year, operated a log loader, except that for the last 2 or 3 days he worked as a climber. Customarily, Atkins worked alone. However, as General Foreman Boykin testified, on occa- sion another employee would work with Atkins but that it was "rare that he would take a man with him." Atkins did not maintain any work records on other employees and he was never told that he could exercise any supervisory au- thority, and testified that he had never done so. Counsel for the Respondent, in his brief, states that counsel for the General Counsel, "while alleging that Respondent's foremen are supervisors within the meaning of Section 2(11) of the Act, is attempting to simultaneously maintain that Atkins, who was a foreman and was paid at the foreman rate, was not a supervisor...." This posi- tion, he contends, "is not only inexplicable, but at variance with prior holdings of this very region," and in that con- nection refers to Case 11-RM-1136, in which the Regional Director, under date of May 17, 1967, directed an election among employees in a unit described as all "overhead line construction and maintenance employees . . . but exclud- ing foremen, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act." In this regard, counsel argues that there is no compelling evi- dence or reason "why a distinction should be made as to one foreman the precedental value of prior Eleventh Re- gion decisions should be lightly reversed." He also refers to the Board's decision in a prior case involving the Respon- dent, 161 NLRB 1397 (1966).2 B. Discussion and Conclusions Counsel for the General Counsel, in his brief, contends that the record here discloses the Respondent had knowl- edge of the union activity in which the alleged discrimina- tees engaged, and that it was opposed to such activity. Moreover, he contends that the timing of the terminations 2 In that case, the Board found ment in certain exceptions filed by the Respondent to the Trial Examiner's decision, and approved the request of the Charging Party in that case to withdraw the charge. That case involved an individual who held the position of crew foreman which, according to the Trial Examiner's decision, was stipulated to be a supervisory position within the meaning of the Act. ASPLUNDH TREE EXPERT CO. demonstrates that they were occasioned by union activity, and that the mathematical probabilities indicate that the terminations were occasioned by union activity, and finally that the Respondent held out pretextuous reasons for the terminations. On the other hand, counsel for the Respondent argues that its basic position is that Atkins was a supervisor within the meaning of Section 2(11) of the Act and that "in no way could his separation have violated Section 8 (a)(3) of the Act as alleged ." Moreover, he contends that, even if it be found that the Respondent violated Section 8(a)(3) in terminating Atkins, there is "sufficient, admitted and cor- roborated evidence on the record that Atkins is not entitled to reinstatement or backpay inasmuch as at or about the time of this separation from Respondent 's employ, he seri- ously threatened to assault the very supervisors by whom he would have to be employed. Nothing in the National Labor Relations Act suggests the requirement of the rein- statement of an employee which would interfere with nor- mal plant discipline by an insubordinate employee." With regard to Algood and Clark, counsel asserts that "there is an utter failure of proof" that the Respondent knew that either had engaged in union activities. It appears clear that Massey was dissatisfied with the performance of the bombardier in that it was cutting some 4,000 feet of right-of-way per week whereas another ma- chine was cutting between 12,000 and 14,000 feet in the same period. Kelly related that on October 14 he went to Massey's office and learned that construction work was decreasing and that this would necessitate a reduction in personnel. According to Kelly, he told Massey that the Re- spondent did not have any work for the log loader and that "if we don't have anything for the machine my conscience won't let me steal from him by trying to scrounge beyond a certain time to keep it out there even though we did have to pay the rent on it on the yard." Concerning this testimony , counsel for the General Counsel asserts that Kelly was asking me "to believe some things which are simply unbelievable." He argues that Kelly's assertions that he "could not in good conscience" continue to charge the operation of the machine to CP&L is a "strange position," since Kelly's "prime obligation" was to the Respondent and inasmuch as it would appear that CP&L "was perfectly capable of making decisions re- garding its own expenses." Kelly testified that when he spoke to the foremen on October 7 concerning possible layoffs he told them that they should, among other things, learn what the right-to-work law means ; however, he de- nied that he said anything about the Union or union activi- ties. In this connection , counsel for the General Counsel points out that Atkins testified that a day or two previously Kelly had questioned him about the Union and had stated, in substance, that the state right-to-work law permitted the Respondent to discharge employees for engaging in union activities. Secondly, he notes that Kearney testified that about that time the foremen realized that the state 's right- to-work law related to union activities. Counsel for the General Counsel also points out , in con- nection with the termination of Atkins, that Kelly, after he laid off several employees on October 18, later that day found a job for Tommy Ennis, who had not attended the 355 October 17 meeting, had no prior experience as a foreman, and was junior to some employees who were laid off. We turn next to a consideration of the terminations, first taking up the case of Atkins and his alleged supervisory status. Admittedly, Atkins decided when and for how long he would break for lunch, had an expense account and was authorized to charge gasoline, was reimbursed for stamps purchased, and was authorized to spend money for keys. He admitted that, when working as a bucket operator, he could not purchase stamps, keys, and gasoline using the Respondent's credit. He also admitted that he filled out a form called "Line Clearing Report" as a foreman, but that he did not do so when an employee. He also testified that he filled out a sheet that contained the dates and names of persons on the crew and the time they started, went to lunch, and quit, and that he mailed these sheets to the customer and the general foreman. He also took the foreman's first-aid course and attended foremen's meetings which were not attended by employees. It is, of course, clear that neither the title "foreman" nor the rate of pay received by an individual establishes that that individual has the authority of a supervisor. In a re- cent case 3 the Board found that an individual classified as a "foreman," who spent between 60 and 75 percent of his workday in manual labor, worked alongside the laborers, directed their work and trained them, ordered necessary amounts of concrete, laid off employees when instructed to do so, and advised supervision concerning absences, was not a supervisor within the meaning of Section 2(11) of the Act. In Electric Wiring, Inc., 193 NLRB 1059 (1971), the Board adopted its Trial Examiner's finding (at 1062) that individuals who were considered by the vice president of that respondent "to be `superintendents' or 'job foremen' in the sense that he places them `in charge of' building and constructed projects" on which that respondent was a sub- contractor were nonsupervisory. After carefully consider- ing the evidence, I come to the conclusion that, at no time here material was Atkins a supervisor within the meaning of Section 2(11) of the Act. There is no evidence that he possessed or exercised any of the authority that would qua- lify him as a supervisor as that term is defined in the Act. While he did on occasion ask other employees to assist him with work on the log loader, there is evidence that other employees not claimed to be supervisors made similar re- quests. Moreover, it seems clear that on October 14 or 15, Atkins became a member of Green's crew, a position clear- ly of a nonsupervisory nature. Thus, it would appear that, even if Atkins were found to be a supervisor while occupy- ing the position of log loader foreman, at the time of the layoff on October 18 he was occupying a nonsupervisory position. Upon all the evidence I conclude and find that the Re- spondent, by Area Supervisor Kelly, questioned employee Atkins about union activities and threatened him and other employees with discharge if they supported the Union. In addition, Steins was threatened with a mass layoff if the Union became the employees' collective-bargaining repre- sentative. I further find that, on October 18, the Respon- 3 Local 44, Bricklayers, Masons and Plasters International Union, AFL- CIO, (Raymond International, Inc), 207 NLRB 354 (1973) 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent laid off eight employees who had attended a union meeting the night before , including the alleged discrimina- tees, Atkins, Algood, and Clark. By terminating these three employees the Respondent violated Section 8(a)(3) and (1) of the Act. Such conduct, occurring in connection with the opera- tions of the Respondent as described above, has a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Craig Algood, Justin Atkins, and John Bruce Clark immediate and full reinstatement to their former position or, if not available, to an equivalent position, without prejudice to their senior- ity and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned from the date of their discharge to the date of the offer of reinstatement, consistent with Board policy set forth in F. W. Woolworth Company, 90 NNRB 289 (1950), with interest or backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and con- clusions of law, upon the entire record in these proceed- ings, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 4In 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 ORDER4 Respondent, Asplundh Tree Expert Company, Raleigh, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Questioning employees concerning their union or other protected concerted activities. (b) Unlawfully discharging or otherwise discriminating against any employee or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Craig Algood, Justin Atkins, and John Bruce Clark immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. (b) Make the said employees whole for any loss of earn- ings they may have suffered by reason of the Respondent's unlawful discrimination against them in the manner set forth in the section of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, reports, and all other records necessary to ana- lyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in Raleigh, North Carolina, cop- ies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by a representative of the Respondent, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify, the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. 5 In the event 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."