Kern Masonry Construction, Inc.

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kern Masonry Construction, Inc. and Paul W. Poling and Bricklayers, Masons and Plasterers' Interna- tional Union of. America, Local No. 8, AFL-CIO. Case 6-CA-8780 October 18, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On June 30, 1976, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief; the General Counsel filed an answering 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, except as modified herein,' 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, Kern Masonry Con- struction, Inc., Dayton, Ohio, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 We find it unnecessary to reach the alleged 8 (a)(3) violation because the same remedy is afforded by our affirmance of the 8(a)(l) violation DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: The issue in this case is the employer's motive in discharging a bricklayer. As set out below, I find he was fired because of his concerted and union activities. The case arises from unfair labor practice charges jointly filed by Paul W. Poling (the bricklayer who was'fired) and his Union, Bricklayers, Masons and Plasterers' Interna- tional Union of America, Local No. 8, AFL-CIO (the Union), against Kern Masonry Construction, Inc. (the Re- spondent), on November 10, 1975,' and amended charges filed on January 23, 1976. A complaint based on the origi- nal charges issued on January 13, 1976, and was amended at the hearing to include the amended charges. The com- plaint alleges that Respondent, having employed Poling, discharged him because he engaged in protected concerted activities and in order to discourage membership in the Union. Respondent answered, admitting jurisdictional alle- gations, the employment of Poling, and the fact of his dis- charge on October 10, but denying allegations of unlawful motive in the discharge. The issues were heard before me at Clarksburg, West Virginia, on April 1, 1976. Based on the entire record, including my observation of the witnesses, the arguments of counsel at the hearing, and the helpful briefs filed by the General Counsel and Re- spondent, I make the following: FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent, an Ohio corporation with its principal of- fices at Dayton, Ohio, is a masonry contractor in the con- struction industry. During the 12 months preceding is- suance of the complaint, Respondent in the course of its business received goods and materials valued in excess of $50,000 directly from points outside Ohio for use within Ohio. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent is the masonry subcontractor in the con- struction of an extensive addition to the United Hospital Center at Clarksburg, West Virginia. Its superintendent for the project is Al York. Respondent began work on the job in June at which time it hired a crew of bricklayers includ- ing Poling. Respondent also employed a bricklayer fore- man to oversee the work. In early August, this original foreman left the job and Respondent hired Richard Good- win as a replacement bricklayer foreman. The bricklayer foreman oversees the masonry work and has the authority to hire and fire bricklayers. He, in turn, is answerable to the project superintendent. I find that both Goodwin and York are agents of Respondent and supervi- sors within the meaning of Section 2(11) of the Act. Respondent is a union contractor in that it operates un- der union conditions, employing only union labor on the Clarksburg job. II. THE LABOR ORGANIZATION INVOLVED The Union (Local 8), of which Poling is a member, is a labor organization within the meaning of Section 2(5) of the Act. It has a collective-bargaining agreement with the Construction Employers Association of North Central ' All dates herein are in 1975 unless otherwise indicated. 226 NLRB No. 73 KERN MASONRY CONSTRUCTION, INC. West Virginia, Inc., governing the terms and conditions of - employment of union bricklayers in a six county area in- cluding Clarksburg. Respondent is not a member of that association, but, on June 18, in connection with its Clarksburg job, it entered into a short-form agreement with Local 8 and has continued to operate according to the terms of the underlying collective-bargaining agreement. Subsequently Local 8 merged with three other bricklayer locals, including Local 12 in Morgantown, West Virginia, to form a new local, No. 15. This merger has not, however, altered the applicable collective -bargaining agreement. In manning its Clarksburg job, Respondent has em- ployed members of former Locals 8 and 12 for masonry work as well as members of the laborers ' and the operating engineers unions for other work. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Employment of Paul Poling As indicated above, Poling was hired about the time the Clarksburg job began in June. He was the third journey- man bricklayer hired on the job. He continued working without interruption until October 10 when he was fired by Goodwin, the bricklayer foreman. B. The Union Activity of Poling In addition to being a member of the Union, Poling, in his capacity as a member of the arbitration board of Local 8, was also a signatory on its behalf to the underlying col- lective-bargaining agreement. The functions of the arbitra- tion board include, among other things, the negotiating and signing of collective-bargaining agreements and also participation in certain aspects of the grievance procedure provided in the agreement. The Union's regular job steward on the Clarksburg job was John Post. However, during the first 2 weeks of Au- gust, while he was off because of an injury, Poling func- tioned as acting j ob steward. Respondent admittedly knew that Poling was the acting steward. I find also that Respondent had knowledge he was a member of Local 8's arbitration board because the evidence shows it had available copies of the underlying collective-bargaining agreement carrying his signature. C. The Complaints of Poling Poling was a chronic complainer about working condi- tions on the job. During his, 2 weeks as acting job steward in August, he presented two oral grievances . One, present- ed to Project Superintendent York, was a claim for addi- tional pay provided under the collective-bargaining agree- ment for employees operating the bricksaw. The other, presented to Foreman Goodwin, was a claim for payment to two employees of 2 hours ' showup time on the occasion of an equipment breakdown . This claim also was based on provisions of the collective-bargaining agreement. Both grievances were satisfactorily resolved at the initial stage. In addition to these formal grievances made in his ca- pacity as acting job steward, Poling, as an ordinary em- 497 ployee, made numerous other complaints . Particularly af- ter August, by which time the bricklaying work was being performed at substantial elevations above ground , Poling complained three or four times a week, and sometimes three or four times a day, to Job Steward Post. These most- ly involved the safety of the scaffolding, the lack of safe ladders for mounting the scaffolds, and the lack of drink- ing water. Ladders were not used by all the bricklayers because the younger men simply climbed up the supports. But some of the middle-aged men, including Poling, had difficulty mounting the scaffolds without benefit of ade- quate ladders as required by the collective-bargaining agreement. Of the numerous complaints brought to him by Poling, Post took only a few to Foreman Goodwin. The complaint regarding ladders was one of these . The fact that he did not take many of the other complaints to Goodwin is not a basis for inferring that they all lacked merit or that Post considered them without merit, because many were cor- rected by workmen, particularly laborers, on Post's instiga- tion without resort to management. On three occasions Poling complained directly to Good- win. Sometime in August he complained about the brick- saw being placed so as to blow dust in his face. Goodwin adjusted the matter. Sometime in September, he personally complained to the foreman about the lack of a ladder to climb the scaffold. Goodwin offered to find him one.2 On another occasion in September, Poling accidentally fell through the space between the scaffold and the wall. He suffered no substantial personal injury because he caught himself on the newly fabricated wall resulting in damage to it. During the lunchbreak Poling complained to Goodwin that the scaffold was not only too far from the wall, but lacked toeboards, conditions covered in the collective-bar- gaining agreement. Apparently, Goodwin did not adjust this grievance but simply grinned and walked away. This incident was symptomatic of a chronic safety problem on the job. Scaffolds which were not close enough to the wall were a frequent occurrence. On many occasions the prob- lem was adjusted through the job steward by having the laborers wire the scaffolds closer to the wall at window locations. The absence of toeboards also was a frequent condition. Poling did not confine his complaining to the job stew- ard and the foreman. He also complained constantly to his fellow employees in a loud and strident voice about alleged unsafe working conditions on the job. He did this while working as well as during breaks. I find Goodwin knew of his persistent complaining. I draw this inference because the foreman daily toured the job, because during part of the time involved he ate lunch with the bricklayers, and because of remarks he made shortly before and at the time he discharged Poling. In this latter connection, about a week before he fired Poling, Goodwin observed laborer Denver Rowan, while he was searching for a ladder at the request of Poling. 2 It is not clear in the record whether that particular incident was satisfac- tonly resolved It is clear from the record as a whole that 'the general prob- lem of inadequate ladders remained throughout Polmg's employment and was a constant source of complaint. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goodwin asked him what he was doing. When Rowan re- plied he. was looking for a ladder, Goodwin commented,' "What's the matter, is Pat bitching again." Pat is a nick- name of Pohng. - . On October 9, the day before the discharge, Goodwin directed Rowan to tell Poling of a work reassignment. Pol- ing took exception to the assignment because he would be working alone. Although it was customary for a foreman to send such messages to a bricklayer through a laborer, Pol- ing, angered by the assignment, vented his rath on Rowan. Rowan, himself angered by Poling's reaction, complained to Goodwin that Poling had gotten hot at him, that it was not Rowan's job to tell a bricklayer what to do and then be hollered at. On hearing this Goodwin told him he would not have to worry about it anymore. Poling on his part grieved this particular work assign- ment through Post who took it to Goodwin. The burden of the grievance was that Goodwin usually had two men working on a panel wall and on this occasion he had sepa- rated Poling and another bricklayer he frequently worked with so that each would be working on a separate panel wall instead of together. When Post related the grievance to Goodwin, he replied, "I ain't going to put up with that." He thus rejected the grievance. D. The Discharge On October 10, Goodwin fired Poling. He first informed Job Steward Post in the presence of laborer Rowan and an unidentified electrician that, "I'm going to let Pat go." Post asked him why and,, according to Post, Goodwin stated, "Well, I'm just not satisfied with him, and he's not satisfied with me." Post then asked if it was Poling's work and Goodwin replied, "No, it is not his work:" He added, "I just got to let him go." Post said he wished Goodwin would not. This apparently had no effect. Rowan corroborates Post. He recalls that when Post asked Goodwin why the was laying Poling off, Goodwin said, "Well, I'm not satisfied with him and he's not satis- fied with' me, we just don't get along." He -further recalled that Post asked if it was Poling's work and Goodwin re- plied, "No, it is not his work, we just don't get along." Goodwin himself substantially corroborates Post and Rowan. According to him the conversation with Post went as follows: I said, "John, I'm gonna have to let Pat go." And, he said, "Oh, my God, he's gonna raise hell." He said why? I said, "I don't feel that I'm satisfied with his production, and I don't feel that he's satisfied with me." He said, "Can't you give him a chance?" I said, "No, I've put it off too long-now." Goodwin's version varies from that of Post and Rowan in that he testified he indicated dissatisfaction with Poling's production. On this conflict I credit Post and Rowan rath- er than Goodwin because they corroborate each other. After talking with Post, Goodwin called Poling down from the scaffold, telling him to bring his tools. Poling's version of their resulting conversation, which I credit, is as follows: I was working on the fifth floor, I believe.- He said bring your tools downstairs. So, I brought my tools downstairs. It was around 2:45. I said, "where do you want me to go, down on the blocks?" And, he said, "No, I'm laying you off." I said, "Laying me off?" I said, "Man, I was the third man hired on this job." I said, "why 'are you laying me off?" He said, "You don't please me." And, I said, "I don't please you? In what respect don't I please you?" "Well," he said, "I don't like you and you don't like me." And, I said, "Man that's no reason to lay a man off." I said, "Is my work satisfactory?" He said, "Yes, it was." I said, "Do I get enough in the wall, do I lay enough material?" He said, "Yes, you'do." I said, "Does Al York know about this?" And, he said, "No." He shook his head no. I said, "Well, I'll see about this." I was hot, and I said, "I have a notion to smack you in the mouth." I said, "I'm going down and see John Post." Goodwin's version differs somewhat. He testified: I told him I was going to let him go, and he said, why. And, I said, "I'm not satisfied with you and I don't feel you're satisfied with me." And he said, "Is it my work?" And, I said, "No, not the quality of your work." And, before I could tell him I didn't think he was laying enough material, he flew into a rage... . He said, "You're not going to pull the same shit on me you pulled on Jerry. I'm going down and talk to John about this," he said. He said, "I might hit'you-in the mouth." As, indicated above, I credit the version of Poling. It is a fuller version and, considering the personalities of the two witnesses as revealed at the hearing, it seems more likely that Poling would have been more voluble, as his version indicates. But even if Goodwin's version is credited, he in fact said nothing to Poling about unsatisfactory quantity of work performed, which is the reason now asserted by Re- spondent for the discharge. In the testimony regarding the conversation at the termi- nation of Poling, the word "layoff" is sometimes used. This is to be understood, however, as meaning discharge. There is no dispute that Poling was discharged on October 10. The complaint alleges, and the 'answer admits, that he was "terminated" on that date. E. Respondent's Defense The asserted defense Iis that Poling was discharged for incompetence in that he did not do enough work although what he did was of adequate quality. The record indicates some basis for dissatisfaction with his work but I find that that was not the dominant reason for discharge. ' Goodwin came on the job as bricklayer foreman in the first week of August. According to York, who was on the job about 2 days out of every 2 weeks, he and Goodwin in the weeks that followed (about a 2-week period according to York and a period from 4 to, 6 weeks according to Good- win) discussed all the bricklayers on the job. Goodwin raised questions about the competence of three, Jerry Zim- merman, Louie Marra, and Poling. Goodwin told York, KERN MASONRY CONSTRUCTION, INC "that he felt that Mr. Poling was not giving a day's work, he felt that he wasn't doing the work that he was capable of doing, or what he was being paid to do...." York told Goodwin that it was his discretion to'dismiss the man if he wasn't doing his job. However, Poling was not discharged at that time. Zimmerman, on the other hand, was fired "probably sometime in September" because. he was unreasonable to the degree of not wanting to do the work and because he had a drinking problem and would show up irregularly. According to Goodwin, he was incompetent. Marra also was slated for discharge, but that proved unnecessary be- cause he thereafter failed to appear for work. The specific reasons for the plan to terminate him are not explained in the record. Nothing was said then or later to Poling about dissatis- faction with his work. Yet at the hearing Goodwin gave a detailed exposition of his deficiencies including sitting down on the job, endeavoring to pick his place to work (which Goodwin considered the foreman's prerogative), and his desire to not work alone. Goodwin claimed that because of these deficiences Poling was not putting enough material in the wall. With all of this there is no evidence that, at the time it was planned to terminate Zimmerman and Marra, there were any plans to terminate Poling. At most his perfor- mance was being questioned. In fact, he was not terminat- ed. He was kept on until October 10, when he was let go without warning. There is no evidence that his quantity of work performed varied in any significant degree through- out his employment on the job. It is difficult to understand why, if Respondent throughout the summer, and Goodwin since the first of August, had put up with his performance, it suddenly became necessary on October 10 to fire him for that reason. On the other hand, the evidence is persuasive that Good- win was reacting to Poling's persistent "bitching." The to- tality of his complaining included- not dust the grievances processed while he was acting steward but also those he took directly to Goodwin and those he took to Post. Al- though only a few of the latter were carried further to Goodwin, I cannot believe that the foreman was unaware of his constant complaining to the steward. Similarly, I think the record-warrants-the inference that he was aware of the daily complaining to fellow employees about safety conditions on the job. All of the complaints dealt with one or another working condition covered by the collective- bargaining-agreement. Whether Poling's position was right or wrong under the contract, his -arguments in each in- stance were arguably within the contractual provisions de- signed to protect the working men. His pressing of these complaints was union and protected concerted activity. Pa- cific Maritime Association, 192 NLRB 338 (1971); Standard Aggregate Corp., 213 NLRB 154 (1974); Dakota Electric Association, 201 NLRB 302 (1973). Goodwin claimed! that Poling at times sat down on the job. Yet at least some of the instances of sitting admittedly were the result of the absence of a ladder. The contract requires that adequate ladders be provided. Although the agreement gives the employer the prerogatives of manage- ment, it also establishes many work rules which arguably 499 could bear on a work assignment. Goodwin testified that he felt a bricklayer should work where the foreman tells him to work. But there is no evidence whatsoever indicat- ing that Poling ever refused to work where. he was told to work. The most he did was to show his anger to a fellow employee (Rowan) and to raise the issue with management by grieving through his job steward. His right to grieve is a right underwritten not only by the collective-bargaining agreement, but by the Act as well. In sum, there is strong evidence warranting the inference that it was Poling's persistent pressing for rights which he deemed were insured by the contract which tipped the scale in Goodwin's mind and which by October 9 con- vinced him he should terminate Poling. He carried out his decision the next day. I find that the separation of Poling for these reasons was in violation of Section 8(a)(3) and (1) of the Act. - The General Counsel also asserts that- Poling's union membership, his position in the arbitration board, and his 2-week tenure as acting job steward, together with the other evidence in the case, warrant a finding that his union activity generally motivated the discharge. I find that the evidence does not warrant a finding on that theory. There is no evidence of umon- animus. The employer generally operates as a union employer and generally has-good rela- tions with the Charging Union in this case. Goodwin -him- self is a union member and has held positions on the arbi- tration board of his own local. Nothing in his conduct indicates an antiunion attitude as such. What his conduct does indicate is an antipathy to a loud mouth such as Pol- ing who was constantly waving the contract and who grieved at the drop of a hat. 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 de- scribed in section I, above, have a close , intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free now of commerce. They are unfair labor practices within the meaning of Sections 8(a)(3) and ( 1) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and discriminated with respect to employee hire and tenure of employment and the terms and conditions of employment, thereby discouraging membership in a labor oragnization and committing unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by termi- 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nating the employment of Paul Poling on October 10, 1975, and by not reinstating him thereafter. ,4. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of th e Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the poli- cies of the Act. I recommend that Respondent be ordered to offer Paul Poling immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges, and that he be made whole for loss of earnings suffered by reason of the discrimination against him by paying him a sum of money equal to that which he would have earned from October 10, 1975, the date of- his termination, to the date Respondent offers him reinstatement, less his net earnings during such period, backpay to be computed in the manner'set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon at 6 percent per annum calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent be required to preserve and upon request, make available to Board agents, upon request, all pertinent records and data, necessary in analyzing and determining whatever backpay maybe due. I further recommend that Respon- dent post appropriate notices at its jobsites within the terri- torial jurisdiction of Bricklayers' Local 15. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDERS or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request offer to Paul Poling immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent position, with- out prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings in the' manner set forth in the section entitled "The Remedy." (b) Preserve and upon request, make available to the Board or its agents all records necessary to analyze the amount of backpay due under the terms thereof. (c) Post at its jobsites within the territorial jurisdiction of Bricklayers Local 15, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted for 60 consecutive days thereafter, in con- spicuous places at each of its jobsites within the territorial jurisdiction of Bricklayers Local 15, including all places where notices to employees are customarily posted. Rea- sonable steps- shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps have been' taken to comply herewith. 4 In 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 " The Respondent, Kern Masonry Construction, Inc., Dayton, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating or otherwise discriminating against em- ployees because they engage in union or protected concert- ed activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Bricklayers, Masons and Plasterers' International Union of America, Local No. 15, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concert- ed activities for the purpose of collective bargaining or mu- tual aid or protection as guaranteed in Section 7 of the Act, 3 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the, Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. APPENDIX NOTICE 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 violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or, help unions To act together for collective bargaining or other mutual aid or protection , To process grievances through a union job stew- ard To urge compliance with terms of a collective- bargaining agreement, including provisions cover- ing working conditions on a jobsite KERN MASONRY CONSTRUCTION, INC. To bargain collectively through representatives of their own choosing To refrain from any or all of these things. WE WILL NOT do anything that interferes with, re- strains, or coerces employees with respect to these rights. 501 WE WILL NOT terminate or otherwise discriminate against employees because they engage in union activ- ity or other protected concerted activity. WE WILL give Paul Poling his old job and pay him for earnings lost because of the discrimination against him. KERN MASONRY CONSTRUCTION, INC.