Asphalt Paving Co., Inc.

ASPHALT PAVING CO 265 Asphalt Paving Co., Inc. and Construction and Gener- al Laborers Union, Local No. 1140, affiliated with Laborers International Union of North America, AFL-CIO. Case 17-CA-6654 argument Subsequent to the hearing, the Respondent sub- mitted a brief Upon the entire record in the case, including the brief of counsel, and from his observation of the wit- nesses, I make the following May 28, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On February 6, 1976, Administrative Law Judge Robert E Mullin issued the attached Decision in this proceeding Thereafter, the Respondent filed excep- tions 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 the Respondent, Asphalt Paving Co, Inc, Omaha, Nebraska, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order DECISION STATEMENT OF THE CASE ROBERT E MULLIN, Administrative Law Judge This case was heard on October 30, 1975, in Omaha, Nebraska, pur- suant to a charge duly filed, and served,' and a complaint issued on September 18, 1975 The complaint presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended In its answer, duly filed, the Respondent conced- ed certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices At the hearing, all parties were represented by counsel All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce rele- vant evidence, and to file briefs The parties waived oral 1 The charge was filed on July 17, 1975 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a corporation, with its headquarters in Omaha, Nebraska, is engaged in the business of paving streets and parking lots and in performing related work During the course and conduct of its business operations the Respondent annually purchases from sources outside the State of Nebraska goods, materials, and services valued in excess of $50,000, and it annually sells goods and mate- rials valued in excess of $50,000 directly to sources located outside the State of Nebraska Upon the foregoing facts, the Respondent acknowledges, and I find, that Asphalt Paving Co, Inc, is engaged in commerce within the mean- ing of the Act II THE LABOR ORGANIZATION INVOLVED Construction and General Laborers Union, Local No 1140, affiliated with Laborers International Union of North America, AFL-CIO (herein called Laborers or Lo- cal 1140), is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Sequence of Events The Respondent is a member of the Heavy Contractors Association The latter, in turn, represents it in negotia- tions with Local 1140 For some time the Respondent has had a bargaining relationship with the Laborers and has used the hiring hall of that organization in securing the laborers which it needs Late in May, or early in June 1975, employee Edward C Harm was appointed job steward for Local 1140 On July 2, he was discharged, according to the General Counsel and the Charging Party, for discriminato- ry reasons This allegation is denied by the Respondent, according to whom Harm was discharged for cause Charles E Bash is the president of the Respondent Im- mediately below him in the supervisory hierarchy is Rich- ard J Marsh, an engineer and his son-in-law Under Marsh, and serving as employee Harm's immediate superi- or at all times material was Bobby Jones, foreman of what was known as the laydown crew During the peak of the paving season the latter crew had about 12 members, made up of laborers and truckdrivers, all of whom were members of either Local 1140 or the Teamsters, respectively B The Facts Edward C Harm was first employed by the Respondent in 1962 Thereafter he worked for the Respondent during several of the paving seasons which extended from about April until the late fall of each year President Bash testi- 224 NLRB No 41 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled that Harm had been an employee at six different times from 1962 until his termination During the 1974 season and until laid off for the winter he had worked in the Respondent's shop as a mechanic's helper In April 1975, he was hired as a laborer Initially, he worked on what was known as the patch crew, but after a short while he was transferred to the laydown crew under Foreman Bobby Jones Harm did not join the Union until sometime in May when Jack H Budd, business agent for Local 1140, discov- ered that Harm, although working as a laborer, was not a union member Harm thereafter signed an authorization card in that union, after borrowing the money for his initi- ation fees from the Respondent It appears that, notwithstanding his belated joining of the Laborers, Harm shortly became an activist and asked that Budd designate him as the job steward Budd acceded to this request and on or about June 1, 1975,2 appointed Harm as steward for the Laborers on the Respondent's jobs Until then, although the Respondent had had a con- tractual relationship with that union for some while, the members had not had a fellow employee serving as their steward Budd testified, credibly, that he promptly told Foreman Jones about Harm's appointment and that within the next day or two he also informed President Bash Jones acknowledged that Budd told him about Harm's designa- tion Bash, however, denied that he was ever so informed Nevertheless, he conceded that he soon learned about this development 3 During the first or second week in June, Harm had his first exchange, in an official capacity, with the Respondent's president This occurred when Harm protest- ed to President Bash that, under the union contract, he and the two other laborers on the laydown crew were entitled to pay for a full 8 hours, on a day when, because of rain, they had only been at the jobsite for 7 hours Bash at first denied that there was any merit to this request Thereafter, when Harm persisted in pressing the claim on the ground that the collective-bargaining agreement provided for 8 hours' pay, Bash became angry and declared that, under no circumstances, would he honor the request Finally, and before concluding the conversation, he told Harm that he would find a way to fire him if he ever caught him "goofing off " Harm testified that he told the Respondent's presi- dent, "Don't threaten me You don't have a reason to fire me as long as I am conducting my union business or doing my fob " According to Harm, Bash closed their discussion with the declaration "I don't care I am definitely going to find a way to fire you " Bash did not contest the accuracy of Harm's testimony about this encounter According to Bash, "I indicated to Ed [Harm] that I didn't appreciate the fact that he was taking advantage, trying to collect that extra hour and that 2 All dates herein are for 1975, unless otherwise noted 3 When asked whether he knew, during early June, whether Harm was a union steward, Bash's response was "Officially, No It is my conclusion that, notwithstanding Bash's denial that Business Agent Budd told him about Harm's appointment, Budd was more credible in connection with this issue Accordingly, it is now found that Bash, in fact, was promptly notified that one of his employees had been designated the job steward for the Laborers if I ever caught him not performing his job that he was going to be fired " Bash further acknowledged that in a prehearing affidavit he averred that he also told Harm that he thought it was "pretty chicken" that the steward would press such a claim and that he likewise told the employee "Ed, don't ever let me catch you not working, not doing your job or giving me an excuse to fire you " Bash testified that he concluded the exchange with Harm by telling him to call Business Agent Budd and that "we would get it settled " Harm thereafter telephoned the union hall and reported that Bash had threatened to fire him Budd subsequently went to the jobsite and discussed the matter with Harm's superiors About a week later, Harm and his colleagues received pay for the full 8 hours on the day in question On the same day that Harm protested to Bash about not getting paid for an 8-hour day, Harm had a second en- counter with Respondent's president This arose when Harm told Walter Bonner, one of the truckdrivers on the laydown crew, that he should put aside the shovel he was using because that involved him in laborer's work Bash, who was standing nearby, heard what Harm had said and immediately came forward to tell Bonner that he could either use the shovel or look for another job When Harm protested that Bonner was a member of the Teamsters and did not have to perform laborer's work, Bash asked the truckdriver "Who do you work for, Bonner9 Do you work for Ed [Harm] or do you work for us?" After this question Bonner resumed his shoveling At the hearing, Bash testified that the exchange between him and Harm, as well as Bonner, had occurred in a light- hearted spirit of jest, and that he thought nothing of the matter The testimony of Harm, however, recounted above, was credible It was also corroborated in all particulars by the credible testimony of David Williams, a coworker who was present at the time 4 From the latter testimony it is evident that, at the time, both Harm and his fellow employ- ees had no reason to believe that Bash's comments on this occasion were facetious or made in jest Harm testified that during the ensuing weeks he protest- ed to the management on several other occasions about the practice of having truckdrivers, who were members of the Teamsters, to do the work of Laborers According to Harm, in these instances he reported alleged violations of the contract to Business Agent Budd This testimony was corroborated by Budd, who testified that, on at least one of these occasions, Harm accompanied him to a meeting with management about the Laborers protest over the Respondent's use of the Teamsters on what the members of Local 1140 considered to be their work Foreman Jones acknowledged that Budd was on the job "a couple of times" after Harm became a steward, but he professed no recollection as to the reason for the business agent's ap- pearance at the site Bash, on the other hand, testified that the dispute as to Teamsters doing work claimed by the Laborers had been settled at a meeting which he had in mid-May, with Budd and one Smith, a business agent for the Teamsters There was no documentation offered to support this testimony 4 The quotation in the preceding paragraph is from Williams' testimony ASPHALT PAVING CO Budd, on the other hand, denied that there had been any such agreement as to the jurisdictional dispute Whereas it appears that the business agents and Bash did have at least one joint meeting on the subject, Budd was the more credi- ble in his testimony that there had been no agreement as a result of this conference On several occasions, Harm protested to Foreman Jones that the Company had failed to provide drinking water for employees on the jobsite In each instance, Jones there- upon assigned the task of securing the water to Harm him- self At the hearing, Jones corroborated this testimony and testified that getting the drinking water was a laborer's job and Harm had to do it occasionally In his testimony, Bash dismissed the matter on the ground that whenever the la- borers had no drinking water it was the result of their own negligence because it was they who were responsible for securing water for the crew Harm was discharged on July 2, a Wednesday Accord- ing to the employee, when he came to work that morning he was told to report to Bash When he did so, Bash told him that he was being terminated because Foreman Jones and Supervisor Marsh had reported that the day before "you'd been goofing off, found you standing under a shade tree " 5 Harm thereupon left the premises The following Monday, July 7, Harm went to the union hiring hall where Budd told him that there was a work order in for a laborer at the Asphalt Paving Company Budd thereupon gave Harm a workslip and the latter re- ported to the Respondent's jobsite where he was met by Jones The foreman tried to discourage Harm from going to work, but Harm insisted that, with the workslip, he was entitled to employment and proceeded to join the crew Shortly thereafter, Jones told him that Bash was on the way to the site and would speak to him When the Respondent's president arrived, he ordered Harm off the job According to Harm's credible uncontradicted testimo- ny, Bash told him on this occasion "We don't need you I don't know why you want to work for the Company anymore You don't like it here You've just got a different attitude 11 - Harm testified that on only one occasion prior to his termination had Foreman Jones criticized his work Jones thought he had discussed Harm's work habits with the em- ployee on two different occasions Both Jones and Marsh testified that, on his last day of employment, Harm was not working as hard as he might have and that he had spent some time under a shade tree near the site where the as- phalt was being poured Jones conceded that July 1 had been an unusually hot summer day and that, at one point or another that day, all of the crew had spent some time under the shade tree in question Marsh, who made the report to Bash that purportedly led to the employee's dis- charge, was not on the job constantly, but only from time to time in the course of his duties He acknowledged that Harm was the only laborer on whom he made an adverse report to Bash 6 According to Marsh, in the preceding 5 The quotation is from Harm's credible undenied testimony 6 When asked the following question Marsh gave the answer which ap- pears below Q When you went out to observe laborers did you ever have occasion 267 month, Bash told him that he did not like Harm's "atti- tude " He further testified that dissatisfaction with Harm had begun about 6 weeks earlier This, of course, was about the time that the Respondent first learned of Harm's designation as the union steward Bash testified that during 1974 when Harm was a mechanic's helper he had often been absent or tardy and that at the beginning of 1975 the mechanic for whom Harm worked did not want him back He also recited a number of other occasions in the past when Harm had demonstrated obvious failings as an employee According to Bash, during the years that the employee had worked for him, "I have seen Ed Harm come to work so drunk and so beat up that he couldn't work for anybody " Never- theless, over a substantial period of time, dating back to 1962, the Respondent had kept Harm in its employ C Concluding Findings It appears that during the course of Harm's employment there were a number of occasions when he had given the Respondent cause to terminate him Notwithstanding these purported problems with Harm, however, the Respondent tolerated Harm's deficiencies, whatever they were, and during the work season, and on five different occasions, according to President Bash, he was rehired The Respon- dent, of course, was not thereby precluded from ever adopting a different stance as to Harm's continued em- ployment The question to be resolved here, however, is what its motive was in imposing the sanction of discharge for his alleged dereliction on July 1 For, as one court has stated, "Ajustifiable ground for dismissal is no defense if it is a pretext and not the moving cause " N L R B v Solo Cup Company, 237 F 2d 521, 525 (C A 8, 1956) It was only in the spring of 1975 that Harm joined the Laborers Thereafter he sought, and secured, appointment as the steward for that Union on the Respondent's jobsites, a post which prior thereto had never been filled It is evi- dent that the activist role which he chose to assume in that position immediately made him unpopular with the man- agement In his first encounter with President Bash, over the matter of whether the collective-bargaining contract guaranteed the laborers on the laydown crew an extra hour's pay, Bash was so provoked that he threatened Harm with discharge "if I ever caught him not performing his job " This marked the end of the Respondent's tolerance and complacency toward Harm's foibles About this time, Marsh learned that his father-in-law did not like Harm's "attitude" and both Marsh and Jones began to find that there was much to criticize about Harm's habits on the job Finally, on July 1, when observing the crews at work, Marsh made an adverse report on Harm, the first such report he had ever made on a laborer, and the next day Bash abruptly terminated the employee in the middle of the workweek When Harm sought to return to the job on to make a report to Mr Bash on any laborer other than Ed Harm9 A I don t believe so 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 7, Bash told him that he was no longer needed, and added, "you've dust got a different attitude " In the light of the foregoing findings, it is my conclusion that the real reason for the Respondent's dismissal of Harm on July 2 was not the fact that he had been standing under a shade tree the preceding day, or that his work had deteriorated, but that he had recently come to be regarded by President Bash as an overly zealous on-the-job repre- sentative of the Laborers Harm's work habits, with which the Respondent's officials and supervisors were well ac- quainted over a period of years, apparently became intoler- able only after he became a union steward N L R B v Electric City Dyeing Co, 178 F 2d 980, 983 (C A 3, 1950) The Respondent could not punish the employee because he sought to enforce what he considered the contractual rights which he and his coworkers had under the collective-bar- gaining agreement N L R B v Interboro Contractors, Inc, 388 F 2d 495, 499-500 (C A 2, 1967), Carlson Corporation, 195 NLRB 218, 221 (1972), H 0 Seifert Company, 199 NLRB 960, 966 (1972), H C Smith Construction Co, 174 NLRB 1173, 1174 (1969), enfd 439 F 2d 1064 (C A 9, 1971), and Bunney Brothers, 139 NLRB 1516, 1519 (1962) That, however, was what Bash did in terminating Harm under the circumstances present here In so doing, it is now found that the Respondent violated Section 8(a)(3) and (1) of the Act It is also found that the Respondent further violated Section 8(a)(1) in early June when President Bash threatened Harm with discharge for pressing an employee grievance at a time when Harm was acting in his capacity as a job steward CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act 2 By discriminating in regard to the hire and tenure of Edward C Harm, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 3 By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent discriminatorily ter- minated Edward C Harm on July 2, 1975, I will recom- mend that the Respondent be ordered to offer Harm im- mediate and full reinstatement without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered from the time of his discharge to the date of the Respondent's offer of reinstatement The backpay for the foregoing em- ployee shall be computed in accordance with the formula approved in F W Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co, 138 NLRB 716, 717-721 (1962) It will also be recommended that the Re- spondent be required to preserve and, upon request, make available to the Board or its agents, payroll and other rec- ords to facilitate the computation of backpay due As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941) Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended ORDER' Asphalt Paving Co, Inc, Omaha, Nebraska, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging employees, or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment, because they engage in activity having as its purpose the submission, presenta- tion, and processing of protests relating to employee wages, hours, or working conditions (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the pur- pose of collective bargaining or other mutual aid, or to refrain from any or all such activities 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Offer to Edward C Harm immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Deci- sion entitled "The Remedy " (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary, or appropriate, to analyze the amount of backpay due 7 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 shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its find- ings conclusions and Order and all objections thereto shall be deemed waived for all purposes ASPHALT PAVING CO (c) Post at its shop in Omaha, Nebraska, copies of the attached notice marked "Appendix " S Copies of the no- tice, on forms provided by the Regional Director for Re- gion 17, after being duly signed by the Respondent's au- thorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith 8In 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 WE WILL NOT discourage membership in Construc- tion and General Laborers Union, Local No 1140, 269 affiliated with Laborers International Union of North America, AFL-CIO, or any other union, by discharg- ing or otherwise discriminating against our employees because they engage in activity having as its purpose the submission, presentation, and processing of pro- tests relating to employee wages, hours, or working conditions WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, loin, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any or all such activities WE WILL offer Edward C Harm immediate and full reinstatement to his former job or, if that job no lon- ger exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of pay suffered as a result of the discrimination against him ASPHALT PAVING CO, INC