T. C. Bakas & Sons

T. C. BAKAS AND SONS T. C. Bakas and Sons, Inc. and Antonio P. Silva. Case 13-CA-15416 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 9, 1977, Administrative Law Judge Julius Cohn issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, to modify his remedy,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, T. C. Bakas and Sons, Inc., Lombard, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (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 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Chicago, Illinois, on November 8 and 9, 1976. ' At the hearing, pursuant to notice, the General Counsel amended the complaint so as to allege that Silva and Garcia had engaged in union activities as well as protected concerted activities and further alleged an additional refusal by Respondent to reinstate Silva because he had engaged 232 NLRB No. 93 Upon a charge filed on May 5, and served on May 6, 1976, and an amended charge filed on June 28, and served on June 29, 1976, the Regional Director for Region 13 issued a complaint on July 8, 1976. The complaint alleged that T. C. Bakas and Sons, Inc., herein called Respondent or the Company, violated 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by laying off Antonio P. Silva, the Charging Party herein, and Sabino S. Garcia, because they engaged in protected concerted activity and, further, because it refused to reinstate Silva by reason of his filing an unfair labor practice charge under the Act.' Respondent filed an answer denying the commission of unfair practices. Issues Whether Respondent laid off Silva and Garcia because they concertedly protested the failure of Respondent to pay them at the proper contract rate rather than because of the lack of work. Whether Respondent refused to reinstate Silva because he filed a grievance with respect to his layoff. Whether Respondent since May 5, 1976, continued to refuse to reinstate Silva because he had filed charges under the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent submitted briefs which have been carefully considered. On the entire record 2 in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent, an Illinois corporation, has its principal office and place of business in Lombard, Illinois, where it has been continuously engaged in the business of railway construction and maintenance. During the past calendar year, Respondent purchased and caused to be shipped goods and materials valued in excess of $50,000, directly from points located outside the State of Illinois, to its Illinois location. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Laborers' International Union of North America, Local Unions 1274 and 96, herein called Local 1274 and Local 96, are labor organizations within the meaning of Section 2(5) of the Act. in union activities on December 5. 1975, by filing a grievance with the Union. 2 Errors in the transcript have been noted and corrected. 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES ALLEGED Respondent is primarily engaged in the maintenance of existing railway track, but approximately 20 percent of its business is involved with the construction of new tracks and sidings for private customers. Gregory Bakas is the president and sole owner of the Company. Respondent has collective-bargaining agreements with Local 1274 which covers maintenance work and with Local 96 covering construction work. Both agreements provide that wages and fringes shall be paid in accordance with area standards as set forth in applicable local agreements in the area where the work is to be performed. Neither agreement contains provision for seniority. Commencing about September 1975, Respondent began construction of a railroad siding in Bensenville, Illinois, in addition to its regular maintenance work. At that time, Joe Allen, a business agent of Local 96, visited that jobsite and made a card check of Respondent's crew, during which Antonio Silva joined the Union. The prevailing wage for construction during that period was $7.20 per hour while the maintenance rate was $5.25 per hour. Silva began working for Respondent in 1963 and he was continuously employed from 1969 until his layoff. Sabino Garcia, a longtime member of another Laborers' local union, was also employed as a laborer commencing July 1975. During the week of November 10 through November 14, 1975, Silva and Garcia worked at the Bensenville construc- tion job for either 2 or 3 days and the remainder at a maintenance job. They were paid for the week's work on the following Tuesday, the normal payday, November 18, Garcia stated that when he received his paycheck he noticed that he had not been paid the correct amount of money as it appeared that the total amount reflected a payment on the basis of the $5.25 maintenance rate. Garcia and Silva, with two other employees, were driven to and from work by their foreman, Fausto Hernandez. On the way home in the car that evening Silva stated that his check looked short and Garcia said that he was going to compare this check with his previous pay stubs and then make a claim with Bakas for the additional amount. In so doing he determined that he had been paid at the $5.25 rate for 40 hours rather than having received the $7.20 rate for the 2 or 3 days of work at the construction site. In the car the following morning, November 19, Silva said that he had examined his stubs and his check was short and that he would have to talk to Bakas. Garcia agreed, saying that they would have to have a chance to talk to Bakas. After arriving at the yard of Respondent, 3 at 7 a.m., Garcia noticed Hernandez talking to Bakas. Later that morning at the Bensenville site Garcia saw Bakas at or about 9:30 a.m. and told him his paycheck and that of Silva's were not correct, stating they had not been paid at the union scale for the Bensenville work. Bakas said that he would check this out with the foreman. Bakas testified that he immedi- ately went to Hernandez and asked where Garcia and Silva had been working at the time and acknowledged that there had indeed been an error in their paychecks. At lunch that day Silva told other employees that Bakas had come to the 3 The employees reported in to a yard at Respondent's office and place of business and from there would ride with trucks and equipment to their particularjobsite. jobsite but no one had spoken to him. Hernandez was present at this conversation and Garcia said that he himself had spoken to Bakas about the shortage in the checks. In the afternoon Bakas came back to the Bensenville site and was observed in his car talking with Roberto Garza and Trinidad Lopez, two other foremen. Toward the end of the workday on November 19, Garza gave Garcia his final paycheck for the 3 days of the current week and the amount due for the previous week. Garcia stated that Garza wanted to know what he had said to Bakas and what he told Bakas about the Union. Garcia told him that his check had been short because he had not received the union rate of $7.20. Then, according to Silva, Garza came over to him and asked what he had talked about with Bakas. Silva replied that he did not have a chance to talk to him and Garza then gave him his check and said there is no more work. No one else was laid off on that day. There is no dispute with regard to the above account up to the point of the delivery of the final paychecks to Silva and Garcia. Hernandez stated that he was the one who gave these checks to them while Garza denied it. I credit Silva and Garcia rather than Garza and Hernandez as to this conflict. Both Silva and Garcia testified in a direct and straightforward manner and corroborated one another. On the other hand, Garza and Hernandez, particularly the latter, were halting, evasive, and demonstrated poor recollection except as to this particular fact. Hernandez, with regard to other events, contradicted himself especially as to the allegation that Silva had refused to work overtime several times. He could not give any definite testimony on this and the records reveal that Silva did, in fact, work overtime on occasion. Moreover, it could make no difference to Silva and Garcia as to who gave them their checks. It does matter to Respondent as Garza questioned them as to what they said to Bakas about their pay while Hernandez states he said nothing to Silva. Even if Hernandez gave Silva the check, I do not find it plausible that he said nothing to him in view of the fact that this action involved the layoff of a man with whom he had worked for a couple of years, driving him to and from work every day. In late November or early December, Silva filed a grievance with Local 96. Bakas acknowledges receiving a telephone call from Frank Reilly of Local 96 who asked him about Silva's layoff. Bakas states that he told Reilly that Silva had been laid off because he was out of work at the construction site except for some finishing touches desired by the railroad. He also told Reilly that there had been a discrepancy in Silva's pay which had been corrected and that Garcia, not Silva, was the one who complained about it. Finally, he said he had no objections to hiring Silva again in the spring if there was work and he was contacted by Silva. Bakas stated that he did not rehire Silva in the spring and that Silva never asked for work. 572 T. C. BAKAS AND SONS Rodrigo Silva, Antonio's son, called Bakas in late November or early December and spoke to him about taking his father back to work.4 This was after Silva went to the Union and received no reply. Bakas told him he had no work for Silva at that time but he should call back again. Rodrigo then went with his father to legal aid where it was suggested that he call Bakas again. About 3 weeks after his first call, Rodrigo again called Bakas and was informed by a lady who answered the phone that Bakas was not in and work was slow. He called again 3 or 4 weeks later and received the same response. Bakas denied receiving these phone calls. However, two of the calls he would not have personally received in any event, according to the testimony of Rodrigo Silva. In addition, areas of Bakas' testimony reveal inconsistencies which will be hereafter discussed in connection with the defenses set forth by Respondent. Respondent also alleged with respect to the telephone calls of Rodrigo that the home phone number of Bakas was changed when he moved about December 27. But it appears that at least one, and perhaps two, of the calls were made prior to that date and there is the distinct possibility that the third call could have been made at a time when the operator would transfer the call to the new phone number. Rodrigo Silva testified in a sincere manner and I credit him with regard to the telephone calls. An employee witness, Canuto Perez, testified to a conversation he had while at work with Hernandez. This occurred about December 27 when Perez asked Hernandez what had happened with Silva and Garcia. Hernandez replied that, while he was not too aware of what occurred, he thought they were claiming something about union scale pay. Hernandez then told Perez that he better not say anything about these matters because the same thing could happen to him. Perez stated that Hernandez said this with a "kind of joking attitude." The testimony of Perez is undenied in the record. Respondent has set forth several defenses. As to Garcia, who had only been employed since July 1975, Respondent asserts that there no longer was any work on November 19 and, as Garcia was a new employee whom Bakas did not know very well, he determined to let Garcia go. The defenses are a little more varied with respect to Silva. Bakas said that Silva was let go in November because of lack of work and he was selected for layoff because (a) he usually went to Mexico in the wintertime anyway, (b) Silva refused to work overtime which was essential in the winter when the work consisted mainly of emergency mainte- nance, and (c) Silva, after his layoff, never asked Bakas or the supervisors for his job back, particularly in the following spring, there being no objection to his returning to work. The construction of the railway siding at Bensenville was completed on October 9. Following that, as is the procedure, Respondent received a so-called punch list which is a report from the railroad indicating what corrections or additions must be made to that job. Respondent then returned to Bensenville in November and completed the items on that list in about 2 weeks. This was done by November 19, the day Silva and Garcia were laid 4 Antonio Silva does not speak English and consequently his son, who does, makes telephone calls for him. off. The balance of the crew now reduced to five, excluding foremen, did not work on the following day, November 20. However, there was work for them thereafter either cleaning up at the construction site or the normal maintenance work performed by Respondent. Indeed, the payroll records show that the five laborers continued through the end of December and that the week ending December 27 showed an additional two laborers for a complement of seven. The records further show that, beginning the week ending November 29, no laborers received more than $5.25 an hour, indicating there was no longer any new construction work. While the payroll records show that Silva did not work during the latter portion of the winter, the details indicate that, in 1972, Silva was laid off in December and in the succeeding years it was in January, not November as in this case. The payroll records also reveal that Silva worked a certain amount of overtime and in the period subsequent to his layoff none of the employees worked any overtime. Finally, a word should be said concerning the mode in which Respondent obtains its employees. Its work force consists of Latin American workers who reside, together with Respondent's foremen, in the same neighborhood or area. When Bakas decides that he needs additional workers, he tells his foremen to bring in whatever number he himself determines to be necessary. The foremen then recruit this number of people from their friends, neighbors, relatives, etc. While it is urged that seniority is not followed, and the collective-bargaining agreements in effect do not provide for seniority, it is clear that certain employees work on a consistent basis, as is the case with Silva who was employed since 1963 and regularly since 1969. Discussion and Analysis Clearly, by questioning the hourly rate for which he and Silva were paid for the week of November 10 through November 14, and bringing the matter to the attention of Bakas, Garcia was engaged in protected concerted activi- ties on the morning of November 19. Moreover, since the wage rate is pegged to specific provisions of the collective- bargaining agreements, Garcia was also engaged in union activity, so that a discharge based on his inquiry would be discriminatory and violative of Section 8(aX3) as well as Section 8(aXI) of the Act. The question is then that of Respondent's motivation in laying off Silva and Garcia on November 19. While it is undoubtedly true that the construction work at Bensenville was completed to all intents and purposes on November 19, except for possibly a day or two of cleanup work, the remaining five employees continued to work for a considerable period of time at normal maintenance work in which the Company was always engaged. As Respon- dent did have work for at least five employees, and even seven employees during I week in December, and as Respondent does not follow any seniority system either in layoff or hiring, it would appear in all the circumstances that the selection of Silva and Garcia was discriminatorily 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motivated. In view of the timing of the layoffs, just hours after the protected activity of which it was aware, it is incumbent upon Respondent to provide an explanation, and the reasons it sets forth for the selection of Garcia and Silva I find to be inconsistent and unpersuasive. At first Bakas testified that he had determined on the evening of November 18 that he was going to lay off Garcia and Silva. He then modified this position by stating that his decision was subject to an inspection of the jobsite at Bensenville the following morning. He did this at 9:30 a.m., which was the time when he was confronted by Garcia with the discrepancy in the payroll checks received by him and Silva. I deem it to have been too rare a coincidence that the two men whom he had tentatively selected for layoff on the night before are the very two who complained about a discrepancy in their paychecks the following morning. Then, all of Respondent's witnesses, particularly Bakas, stated that seniority is not followed in any manner by the Company and, indeed, the collective- bargaining agreements provide no such protection for its employees. However, Respondent appears to play this seniority policy both ways. Thus, with regard to Garcia, Bakas stated he had only been employed since July, that he had less time than the others, and as he, Bakas, was not really familiar with Garcia or his work, he decided that he should be let go. Yet, Foreman Hernandez described Garcia as a good man and a dedicated worker. Absent a seniority policy, such an employee would merit retention. On the other hand, despite the lack of a policy of seniority, Silva was in fact employed year after year with regularity. Since Silva was therefore no stranger to Bakas, other reasons were found for his layoff. Bakas said that he was aware, or at least believed, that Silva wintered in Mexico and was therefore a good candidate for layoff. While it may be true that Silva did go away in prior winters, the records reveal that he was usually laid off in January and never as early as November. In fact, for at least 2 months after the layoff, Silva attempted, with the assistance of his son, to be recalled to work. Another reason assigned for the layoff of Silva was his alleged refusal to work overtime in face of the need for a maintenance crew which had to be available at all times for emergency work. While this appears to be a valid reason, it is not supported by the evidence which shows that Silva had worked some overtime, and that the employees who remained after he was laid off were not called on to worovertime. The necessity alleged by Respondent, therefore, is not established by the record. Finally, Bakas maintained that he was not averse to rehiring or reemploying Silva, but Silva had not sought work as he usually did. With regard to the period immediately following his termination, I find this not to be true because, as noted previously, Silva did attempt to be reinstated and was turned down by Bakas himself during the first phone call made by Rodrigo Silva and thereafter indirectly in two later calls when Bakas did not respond. Months later in the springtime when the work force is increased, Bakas states that Silva again did not apply. This brings into question the mode in which Respondent hires laborers. Respondent contends that it is Silva and other employees who seek out the foremen and indicate to them their readiness to return to work if it is available. However, the testimony of Foreman Garza goes both ways on this point. As it is clear that all these employees live together in the same area and see one another all the time, Garza stated that he would see Silva and let him know when work was available. He also stated that on occasion Silva and his son would seek him out and inquire. Noting that no question has been raised concerning Silva's ability as an employee and in view of his long experience with Respondent, it is difficult to understand why Garza did not seek him out at some time in the spring of 1976, when Respondent needed additional employees. The testimony of Canuto Perez throws light on Respon- dent's motivation. It will be recalled Perez testified that, several weeks following the termination of Silva and Garcia, he spoke with Foreman Hernandez who told him that he believed Silva and Garcia were terminated because they were claiming something about union scale pay. Hernandez went on to say, "Better don't say anything. The same thing won't happen to you." Perez went on to testify that Hernandez said this with "a kind of joking attitude." His testimony is undenied in the record as Hernandez, who thereafter testified on behalf of the Respondent, did not allude to it. In any event, I credit Perez who testified under subpena and is still employed by Respondent. While Respondent would have us believe that the statement attributed to Hernandez by Perez was just a joke, many a true word has been said in jest. Finally, the credited testimony of Garcia and Silva shows Garza questioning them as to what they told Bakas about the union scale, a further indication of Respondent's motive. In sum, I find that the General Counsel has made aprima facie case of violation of Section 8(a)(1) and (3) of the Act by Respondent's precipitous termination of Garcia and Silva just hours subsequent to their involvement in concerted as well as union activity. I further find the various reasons advanced by Respondent for its action to be pretextual. Accordingly, I find that Respondent violated Section 8(aXl1) and (3) of the Act by its layoff of Garcia and Silva on November 19, 1975, and that it further violated Section 8(aX3) by its refusal, in the spring of 1976, to recall Silva to employment as it did in former years. The complaint also alleges that Respondent violated Section 8(aX4) of the Act because of its refusal to reinstate Silva subsequent to his filing an unfair labor practice charge on May 5, 1976. No evidence has been submitted to show that any refusal on the part of Respondent to reinstate Silva was based on his filing of the charge as alleged, rather than for the reasons already ascribed to Respondent. I therefore shall dismiss such portion of the complaint as alleges violation of Section 8(aX4) of the Act. The same is true with respect to the allegation that Respondent further violated Section 8(a)(3) by refusing to rehire Silva because he filed a grievance. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and 574 T. C. BAKAS AND SONS commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. 5 Having found that Respondent discriminatorily laid off the employees set forth above, I shall recommend that Respondent be ordered to offer immediate and full reinstatement to Antonio Silva and Sabino Garcia to their former positions, or if no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings or other monetary loss each may have suffered as a result of the discrimination against them, less interim earnings, if any, plus interest at 6 percent per annum. Any backpay due is to be determined in accor- dance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Locals 96 and 1274 are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging or otherwise discriminating against Antonio Silva and Sabino Garcia because of their concert- ed and/or union activities, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated Section 8(a)(4 ) of the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The Respondent, T. C. Bakas and Sons, Inc., Lombard, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating in regard to the hire and tenure of employment, or of any terms and conditions of employment, of any of its employees because of their concerted and/or union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Antonio Silva and Sabino Garcia immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previous- ly enjoyed, and make them whole for any loss of pay due to the violation against them in accordance with the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Lombard, Illinois, office and yard copies of the attached notice marked "Appendix," 7 in English and in Spanish. Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Company's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violation of Section 8(a)(4) of the Act. 5 As the employees apparently are mainly Sparunish-speaking. I shall recommend that the notice posted be in Spanish and English. 6 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 he deemed waived for all purposes. I In the event that his Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) 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 NoTIncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence the National Labor Relations Board has found that we, T. C. Bakas and Sons, Inc., violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT in any manner discharge or discrimi- nate in regard to the hire and tenure of employment or of any term or condition of employment of any of our employees because of their concerted and/or union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer Antonio Silva and Sabino Garcia immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to a substantially equivalent job, without prejudice to their seniority or 575 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other rights, and WE WILL make them whole for any loss of pay or any benefits they may have suffered by reason of our discrimination against them. T. C. BAKAS AND SONS, INC.