Ram Construction Co.

RAM CONSTRUCTION CO. John M. Lastooka, trading as Ram Construction Company and Germano Papi. Case 6-CA-8914 March 16, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On September 16, 1976, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and the General Counsel filed a motion to strike portions of Respondent's exceptions to the Administrative Law Judge's Deci- Sion.2 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 brief and has decided to affirm the rulings,3 findings, and conclusions4 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, John M. Lastoo- ka, trading as Ram Construction Company, Canons- burg, Pennsylvania, its agents, successors, and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. i The Respondent has requested oral argument . This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and positions of the parties 2 In light of our disposition of this case, the General Counsel's motion is denied 3 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, 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. We also find totally without meet the Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge . Upon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence. 4 Member Fanning would not, in any event, find that the issues presented in the instant proceeding were appropriate for deferral to arbitration for the reasons stated in his dissent in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). 228 NLRB No. 94 APPENDIX 769 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT bargain individually with our employees outside the presence of their exclusive representative with respect to any term or condition of employment. WE WILL NOT threaten our employees with discharge if they refuse to sign any individual contract at variance with the terms of an applicable collective-bargaining agreement, nor will we tell them to sign any such agreement or quit. WE WILL NOT discourage membership in International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, Building Material and Construction Drivers Local 341, or any other labor organization, by transferring employees to less desirable positions, by refusing to recall employees from layoff, by discharging employees or in any other manner discriminating against employees because they claim benefits under a collective-bargaining agreement or because they decline to sign individual employment contracts inconsistent with an agreement negotiated by that Union. WE WILL NOT discourage access to the National Labor Relations Board by discharging or other- wise discriminating against an employee because he has filed charges under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL offer Germano Papi and Dennis Weber immediate reinstatement to their former 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions or, if no longer available, to substantial- ly equivalent positions, without loss of seniority or other rights and privileges, and WE WILL pay them for earnings lost as a result of our discrimi- nation against them with interest at the rate of 6 percent per annum. The complaint alleges, the answer as clarified at the hearing admits, and I find that Respondent at all times material herein has been an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED JOHN M. LASTOOKA, TRADING AS RAM CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard in Pittsburgh, Pennsylvania, on June 28, 1976, upon an original charge filed on January 12, 1976, and a complaint issued on March 31, 1976, which, as amended, alleges that Respondent independently violated Section 8(a)(1) of the National Labor Relations Act, as amended, by bargaining directly with employees outside the presence of their exclusive representative , by coercive interrogation, by requesting that employees quit their employment if they persist in union activities, and by threatening employees with discharge for engaging in union activity and for refusal to execute individual employment contracts , and further that Respondent violated Section 8(aX3) and (1) of the Act by refusing to recall from layoff status and thereafter discharging Germa- no Papi, and by transferring to a less desirable job and then discharging Dennis Weber, all because of their concerted activity and to discourage membership in the Union. Finally, the complaint alleges that the aforesaid discharges were violative of Section 8(aX4) of the Act, since also motivated by the filing of unfair labor practice charges. In its duly filed answer, Respondent denied that any unfair labor practices were committed, and further affirmatively asserts that the complaint presents a private controversy based upon claims in violation of the provisions of a valid existing collective-bargaining agreement, and hence the dispute is one which the Board ought not adjudicate. After the close of the hearing, briefs were filed on behalf of the General Counsel and the Respondent. Upon the entire record in this proceeding , including my observation of the witnesses while testifying and consider- ation of the posthearing briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, an individual proprietorship, with a place of business in Canonsburg, Pennsylvania, is engaged as an excavation contractor in the construction industry. During the 12-month period preceding issuance of the complaint, a representative period, Respondent performed services valued in excess of $50,000 outside the Commonwealth of Pennsylvania. During this same period, Respondent has also performed services valued in excess of $50,000 within the Commonwealth of Pennsylvania for employers which are themselves directly engaged in interstate commerce. The complaint alleges, the answer admits, and I find that, at all times material herein, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Building Materials and Construction Drivers Local 341, herein called the Union, is and has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint in this case alleges various acts of coercion, restraint, and discrimination by Respondent, growing out of a dispute concerning its policy whereby drivers would be paid for travel time according to a preset formula, rather than the time actually consumed in driving certain trucks from worksites to Respondent's base facility, or bam, in Canonsburg, Pennsylvania. The complaint almost in its entirety relates to efforts on Respondent's part to foster commitment by its drivers to such policy and to a written agreement, which among other things incorporated the travel time policy. The beneficiaries of the complaint, drivers Dennis Weber and Germano Papi, declined to go along with this policy, and the complaint in effect asserts that Respondent engaged in various independent violations of Section 8(axl) to coerce their approval, and then stepped up the pressures by various acts of discrimination, including the refusal to recall Papi from layoff on December 15, 1975, changing the job assignment of Dennis Weber on or about that same date, and by subsequently, on January 20, 1976, terminating the employment of both. These discharges are alleged to be violative of 8(a)(1), (3), and 4 of the Act. B. Background John Lastooka, through Ram Construction Company, engages in both the heavy construction industry and coal hauling. Its principal base of operation is Canonsburg, Pennsylvania. Lastooka is party to collective -bargaining agreements with various unions representing employees in the building trades. Since 1966, Respondent has recognized Local 341 as collective-bargaining agent for its truckdri- vers, and the current collective-bargaining agreement has an expiration date of January 1, 1978. That agreement is multiemployer in scope, covering employees of 50 to 75 employers operating in 33 counties in western Pennsylva- nia. On behalf of employees, that agreement is negotiated by the Joint Council of Teamsters No. 40, as agent for 14 local unions, including Locals 341 and 249. Respondent in connection with its operations utilizes four different types of trucks; namely, tractor trailers, triaxle dump trucks, tandem trucks, and miscellaneous off- highway trucks. The dispute in this case centers upon a RAM CONSTRUCTION CO. 771 controversy which developed for the first time in October 1975, among drivers assigned to the triaxle dump trucks. At that time four drivers, namely, John Pierce, Billy Jones, Dennis Weber, and Germano Papi, were assigned to those vehicles. These were relatively new vehicles purchased by Respondent in March 1975. Unlike other equipment which performed work essentially on an onsite basis, the triaxles were regularly maintained at Respondent's Canonsburg facility, with drivers bringing them to and from that facility on a daily basis. The triaxle drivers, prior to October 1975, were not paid on a portal-to-portal basis,' receiving time and a half for all hours worked daily in excess of 8. Instead, they only earned overtime pay for daily hours in excess of 8 which were worked at the jobsite. The focal point of the controversy relates to the manner in which Respondent compensated the drivers for time consumed in traveling to and from the jobsite. For this phase of the daily work routine, the drivers were paid on a straight-time basis, with no overtime premiums, at a rate based upon Respondent's determination of how long the trip to each jobsite should take.2 During 1975, Respondent was engaged in the construc- tion of a bypass in Freedom, Pennsylvania. That site was located some 30 miles distant from Respondent's Canons- burg facility. The triaxle drivers were informed that they would earn a maximum of 2 hours' straight-time pay for travel to this job. Prior to October, the drivers of the triaxle trucks simply claimed 2 hours as compensation for their travel time. Commencing on October 23, 1975, all four drivers assigned to triaxle trucks started reporting 3 to 3- 1/2 hours of travel time on their daily timeslips. The increase in the time claimed was attributed to rerouting due to the closing of a bridge, and instructions from Respondent's dispatcher that a rush on the Freedom job required that they reach their jobsite precisely at the start of work and that they not leave for Canonsburg until the conclusion.3 Lastooka, upon discovery of these claims in December, met with the drivers on December 10, 1975. At that time he questioned the drivers as to the reason for their additional travel time claims. In the course of the meeting, the view was expressed on behalf of Respondent that the drivers were charging excessive time in connection with their travel and that they would be required to repay Respondent through future payroll deduction. Before the close of the meeting the drivers apparently agreed to abide by the prior practice and limit their travel claims to 2 hours' straight time. Weber was referred to as having gone along with the rest of the drivers, but Respondent's own witness indicated The term "portal to portal" is used to refer to the time that dnvers left the Canonsburg facility in the morning to the time they returned to that facility in the evening. 2 The testimony of Lastooka that this policy and the determination of the travel time ascribed to each job was established by mutual agreement with the dnvers is discredited to the extent that it implies that the so-called agreements involved anything more than acquiescence by the dnvers to policy dictates ofmanagement. 9 Previously, the drivers would leave the Freedom job to return to Canonsburg in the evening about 15 to 20 minutes early, and they thereby gained the time necessary to complete the round trip within a 10-hour overall workday. 4 See the testimony of Michael Shuler. that he was not happy in doing so.4 Papi did not attend the meeting because he was temporarily laid off due to a truck breakdown. Later, Germano Papi and Dennis Weber signified their disagreement with the travel time policy and there is little conflict in the evidence which shows that Respondent, in reaction, engaged in various acts of coercion and discrimi- nation against them. Thus, on December 11, 1975, the day after the meeting between Respondent's officials and drivers concerning the travel time issue, Weber confronted Lastooka and Shuler, indicating he had changed his mind and would not work under the circumstances previously "agreed upon," asking that he be fired. Lastooka refused to fire him, but indicated that, if Weber was dissatisfied with working conditions under which he had been working for a long period of time, he could quit .5 Also, shortly after the December 10 meeting, Papi appeared at the Canonsburg office to pick up his pay. Shuler asked if he had heard about the meeting and, when Papi responded in the negative, Shuler explained that Lastooka charged the drivers with "padding" or "stealing" time, and that he was going to take an hour and a half from their wages to allow drivers to pay back the stolen time. Papi indicated that he disagreed with Respondent's position, indicating that he did not mind the straight-time pay, but that he would not agree to do 11 hours' work for 9-1/2 hours' pay. Shuler then said, "well, Mr. Lastooka says if you don't like it, there won't be no hard feelings, to leave." 6 Thereafter, on Monday, December 15, Weber received a telephone call from Shuler, who advised Weber that he was being transferred from the triaxle truck to a tandem truck at Respondent's jobsite in Blue Run, Pennsylvania. Weber asked Shuler if he would receive the triaxle rate on the tandem truck, inasmuch as the normal rate for the latter was lower. Shuler was unable to give a response. Weber therefore refused to accept the reassignment.? Weber reported to work on the tandem truck only after Shuler advised him that he would receive the same rate of pay as called for on the triaxle. Nonetheless, as a result of this reassignment, Weber forfeited the opportunity to earn travel pay as he had to drive his own car to the Blue Run jobsite,8 and he was required to operate equipment which was in a less desirable working order than the relatively new triaxle truck. The only explanation for this transfer is that explanation afforded by Lastooka himself, which is to the following effect: S The foregoing is based upon a composite of the testimony of Weber and John Lastooka, and is in accord with suggested Finding of Fact 31 as it appears in Respondent's brief. 6 Based upon Papi's uncontradicted testimony. 7 Art. IV, sec. 5, of the applicable bargaining agreement, in material part, provides as follows: Any workmen may be temporarily shifted by the contractor from one classification of work to another ... provided ... [he is 1 ... paid the highest rate of wages for the day of the classification of work performed. 8 The tandem trucks were kept on the jobsites and hence no travel pay could be earned by drivers of these vehicles. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was transferred from working out of the shop office area to a jobsite to eliminate the difference on the travel pay. We thought if we would assign him to a jobsite, there would be no difference of opinion on the travel pay. Parenthetically, it is noted that Weber's transfer was accompanied by his replacement on the triaxle by another driver, Richard A. Mondine, who formerly drove a tractor trailer. Germano Papi at that time was in layoff, but was not recalled when the position on the triaxle became available. Papi had an initial hire date with the Respondent of September 2, 1975. Mondine was initially employed by Respondent in late 1974 but, in April 1975, quit Respon- dent's employ, after giving 3 days' notice, in order to take another job. Mondine returned to work for Respondent in October 1975. Papi and Weber on December 15 filed separate grievanc- es protesting Respondent's failure to pay overtime in accordance with the collective-bargaining agreement, as well as Respondent's action in working Mondine on a triaxle while the more senior triaxle driver, Papi, remained in layoff status. The Weber grievance also protested his involuntary reassignment to a lower rated truck .9 On December 17, a grievance session was held at Respondent's facility concerning the aforedescribed griev- ances. Discussion at that time centered upon the travel time issue and Papi's seniority claim. Respondent stood its ground on the travel pay formula. Respondent also defended Papi's claim for seniority, on the ground that Mondine was in fact senior to Papi due to Mondine's prior employment with Respondent. In this respect, Respon- dent's position was predicated on its regarding Mondine's seniority as having been continuous despite his earlier quit.'° However, article XII, section 9, of the contract provides in unqualified terms that seniority is "broken or lost" by a "voluntary quit." Uncontradicted testimony by Papi and Weber indicates that in the course of that grievance session, when it became apparent that a mutually acceptable solution would not be reached, Papi and Weber advised Respondent's representa- tives that they would file charges with the Wage-Hour Division of the United States Department of Labor. At that point Lastooka referred to them as "a couple of pricks," stating further that he would weed them out of his "family" because they were "cancerous." 11 Also during the grievance session, Lastooka stated that Weber's transfer to the Blue Run job was a "slap on the wrist," describing this action as an assignment from a "Cadillac" to a "junker." 12 9 Respondent, pointing to art. IV, sec. 5, of the bargaining agreement, states that the transfer of Weber was consistent with this provision of the agreement. See fn. 7, supra It is noted, in this connection, that nothing in that provision authorizes involuntary transfers based upon considerations proscribed by the National Labor Relations Act, and indeed the parties to collective bargaining are not free , except in highly unusual circumstances, to license an impairment of employee rights embodied in Sec. 7 of the Act. 10 In this connection, Mondine credibly testified that, as late as January 1976, he was not aware that Respondent treated his seniority unbroken by his quit. 11 This testimony is based on the testimony of Papi and Weber as partially corroborated by Chuck Heineman, Local 34l's vice president and On the day after the grievance session, December 18, 1975, a document entitled "Memorandum of Understand- ing" was prepared by Lastooka. That document was defined as "an Addendum to the Contract . . . with the Joint Council of Teamsters #4," and pertained to several working conditions. The document was circulated by Respondent's agents among drivers for signature, signify- ing their approval to the practices set forth therein, including the travel pay policy.13 On December 29, 1975, Papi filed a second grievance again protesting a violation of his seniority rights through Respondent's retention of Mondine, while his layoff continued. Weber also filed a second grievance on December 30, 1975. During the first week of January 1976 a second grievance meeting was held. Discussion at that time again concerned Respondent's failure to recall Papi and the overtime problem. Representatives of the Union were for the first time given a copy of the "Memorandum of Understand- ing." At the time, said document bore the signature of several of Respondent's drivers. At the close of this session, Heineman, after being shown company payroll records, was of the view that the Company's position on the seniority issue was correct. Following that grievance session but on the same day, Mondine, at Weber's behest, accompanied the former to the union hall where he signed a statement to the effect that he had voluntarily quit his job with Respondent in April 1975. This step was obviously taken to counter the payroll evidence furnished by the Company at the grievance session. Weber and Mondine then proceeded to Respon- dent's facility to pick up their paychecks. Mondine told Castagna, Respondent's vice president, that he had signed such a statement at the union ball. Castagna admittedly responded by telling Mondine "you had a job!" The original unfair labor practice charge in this proceed- ing was filed on January 12, 1976. On or about January 16, 1976, Respondent's drivers attended a union meeting for purposes of discussing the "Memorandum of Understanding." Union representatives in attendance at that time were Heineman, Hank Trotto, Local 341's president, and a Mr. Kress. At that time Shuler, an admitted supervisor, and Mueller, neither of whom appears to have driven a triaxle truck during the period coextensive with this controversy, added their signatures to the "Memorandum of Understanding." Triaxle drivers Jones, Pierce, and Mondine had previously appended their signatures.14 By letter dated January 20, 1976, Lastooka informed Weber as follows: business agent. Company Agents Lastooka, Castagna, and Shuler attended this grievance session and, while all testified, none was examined as to the above statements attributed to Lastooka. i2 Based upon the credited uncontradicted testimony of Papi. 13 Lastooka testified that this agreement was simply a memorial of oral understandings with drivers in existence since 1973. Through highly prejudicial, leading questions Respondent succeeded in eliciting testimony from triaxle drivers Jones and Pierce which corroborated I.astooka in this regard. 14 It is noted that Mgndine served as a triaxle operator only by virtue of the transfer of Weber and Respondent's failure to recall Papi, transactions which are the subject of 8(a)(3) allegations in this complaint. RAM CONSTRUCTION CO. At a meeting which was held at Local 341 office on January 16, 1976, our Company's Shop Agreement was ratified by the majority of our drivers. Consequently it was accepted by your Local, therefore, we are enclosing a copy of this shop agreement for your acceptance and signature. In the event that you do not sign and agree to abide by the terms and conditions of this Shop Agreement, we have no alternative except dropping you from our seniority list and you will no longer be an employee of our Company. The Shop Agreement was made because it is mutually beneficial to our drivers and to the Company. It provides for conditions not covered in the Joint Council of Teamsters No. 40, Independent Heavy and Highway Agreement in that our Company has some unique conditions. In the event that you do agree to sign and abide by this Agreement you will retain your seniority. However, in the event that you return to our Company and try to undermid [sic] the conditions and the intent of the Agreement and have a belligerent attitude towards your supervisors and your fellow workmen, this will be cause for immediate dismissal. Weber, apparently at the time of receipt of this letter, was in layoff status due to inclement weather . He at no time met the conditions specified by Lastooka therein, and has not been recalled by the Company, though subsequent- ly Respondent's operations reached full employment levels. By letter also dated January 20, 1976, Lastooka informed Papi as follows: This letter is written as a notice of dismissal and the elimination of you on our seniority roster. Our Company has taken this position because of the following reasons. 1. You are a member of Local 249 Ready Mix Concrete Drivers . You voluntarily quit Duquesne Slag Products Company but still hold a seniority position there. 2. You hired on at our Company on a temporary basis and worked here over thirty (30) days but did not transfer into Local 341, as per the Teamsters bylaws. 3. Since you are not a member of the Local in which we have an Agreement and will not give up your seniority position in another Company, we feel it unfair for you to hold a seniority position here and eliminate other people from work. 4. Also, we have a Shop Agreement that has been ratified by Local 341 because of the majority of our drivers agreeing to the conditions of this Shop Agree- ment. You have stated in several meetings that we have had that you would never agree to the conditions of the Shop Agreement, therefore, we feel it quite impossible for you to work in harmony and abide by the special conditions set forth in our Shop Agreement. 5. You have instituted proceedings against our Firm by way of a Federal Wage and Hour Investiga- tion and the National Labor Relations Board Proceed- ings. We will defend our Company's position to the utmost. 773 Until a decision is reached by these two (2) agencies, you are no longer a part of this Organization and will not receive any benefits. Also on January 20, Lastooka wrote Local 341 , advising that, as it was the Company's understanding that a majority of the drivers had signed and thereby ratified the shop agreement, Respondent assumed that the Union had also ratified the agreement. The Union never responded to this letter. Heineman credibly testified that the Union declined to do so, refusing to take a formal position with respect to the matter because of its election to defer to the then pending unfair labor practice proceeding. C. Concluding Findings 1. The claim of contract privilege There is no question on this record that Respondent at all times material herein was committed to a policy whereby drivers of triaxle trucks would earn a maximum of 2 hours' straight-time pay for time expended in transit between its Canonsburg facility and the Freeport jobsite. It is clear that no union representative agreed to or participat- ed in the negotiations leading to formulation of Respon- dent's policy from its alleged inception in 1973 , or at any time relevant to this proceeding. As of October 23, in defiance of this policy, Weber, Papi, Jones, and Pierce, the four drivers who were then assigned to triaxle trucks, claimed additional travel pay based upon their actual time spent on the road. Lastooka reacted quickly and sought to enforce an understanding among his drivers whereby they would adhere to a practice which was not sanctioned by or consistent with the governing collective-bargaining agree- ment. Respondent does not question the established principle that the National Labor Relations Act protects employees in their efforts to enforce terms of a viable collective- bargaining agreement against their employer. Furthermore many factual findings, set forth above, are either based on admission or stand unchallenged despite their clear indication that Respondent commencing on December 10, 1975, embarked upon a coercive course of conduct to force its triaxle drivers to affirm the preexisting travel pay policy. Nonetheless, as I understand Respondent's primary defense, it is claimed that it was not Respondent, but the drivers whose position contravened the contract, and hence Respondent was privileged to pressure recalcitrant employ- ees into compliance therewith, by any disciplinary means, including threats of reprisal and even outright discrimina- tion. Respondent's contention in this regard is based on the premise that the travel pay arrangement matured into a "shop agreement" authorized by article XII, section 11, of the collective-bargaining agreement, which provides as follows: It is agreed that `Shop Conditions ,' excluding wages, may be discussed and settled individually with the Company, the Employees and the Union Representa- tive. Such conditions, when agreed upon, are to be 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reduced to writing and copies furnished to the Compa- ny, Local Union, and the Constructor's Association. In this connection, Respondent asserts that the travel pay policy was initially established by agreement between Respondent and the drivers in 1973. On or about December 18, 1975, said understanding between the drivers and Respondent was reduced to writing. It is claimed that this understanding or arrangement conformed with article XII, section 11, and, as such, was as much a part of the collective-bargaining agreement as if specifically incorporated therein. Respondent's defense in this respect is so lacking in an appreciation for the clear terms of the contract, universally accepted labor relations principles, and statutory concep- tions of the role of the exclusive representative in collective bargaining as to be considered frivolous, at worst, and specious, at best. No doubt exists that a shop agreement negotiated and reduced to writing in accordance with the terms of article XII, section 11 , of the collective-bargaining agreement would be binding on all covered employees and failure by any to accept conditions embodied therein would warrant discipline up to and including discharge.15 Respondent's position, however, discounts that article XII, section 11, of the collective-bargaining agreement by its plain terms, and quite consistent with Board policy, regards the union representative as a party to discussions leading to agreement on "shop conditions." It is true, as Respondent observes, that section 11 of article XII does not explicitly require that the union representative be present "at every stage" of discussions concerning shop conditions. However, the plain import of that provision requires that a union representative be present at least at some stage of the deliberations, and indeed that he be an equal party, with employees and the employer, to any agreement reached which authorizes a variance in contract terms. Also significant is the fact that the contract is multiem- ployer in scope and governs the employment standards of many of Respondent's competitors.16 It borders on the 15 Apart from the matters raised in the above text , Respondent's interpretation of art. XII, sec. 11, must overcome other obstacles as well. Thus, it is entirely possible that the special privilege of contract variance was not intended to cover such matters as Respondent's travel pay policy. Art. X11 is a seniority provision and it is at least arguable that sec . II thereof was designed merely to authorize local arrangements varying the basic seniority formula set forth therein. The exclusion of wages in sec. 11, if broadly construed, would be consistent with such a limited intent but, in any event, a real question of interpretation would exist as to whether a variance in the method of payment, as is involved in this proceeding , is within that exclusion IS The basic collective-bargaining agreement involved here covers 50 to 75 employers operating in 33 counties in western Pennsylvania. The agreement contains a "more favorable agreement clause," set forth in art. XXXII, which provides that any signatory contractor is entitled on request to an agreement on more favorable terms which are granted to any contractor doing business in this geographic area. Ir Lastooka, on January 20, 1976, the same day that he discharged Papi and wrote Weber, in effect expressing that he too would be terminated upon failure to accept the memorandum of understanding, wrote the Union that it was his "understanding" that the Union had ratified the memorandum of understanding because a majority of the collective-bargaining unit members at the union meeting of January 17, 1976, had signed it in the presence of union representatives. Lastooka's self-serving interpretation of what tran- spired at that time assumes that the Union lacked concern for its relationship with other employers signatory to the master contract, and absurd to assume that the joint council and the employer association in negotiating that agreement contemplated any interpretation of article XII, section 11, which would allow a single employer member to undermine formally negotiated labor standards uniformly applicable to com- peting contractors, who are signatory to that agreement. The superior economic power of an employer vis-a-vis his employees historically has been a focal point of protective labor legislation and collective bargaining. It is too late in the game to overlook specific language in a collective- bargaining agreement, and find that parties to collective bargaining would authorize individual contract variances through shop agreements established by a process which in effect consists of unilateral employer action. Article XII, section 11, of the contract refers to the employer, the employee, and the union representative in the disjunctive and with equanimity. This is in harmony with the principles of collective bargaining and, most assuredly, was designed to preserve benefits against the type of conduct manifested by Respondent in this proceeding. Thus, the campaign of intimidation and coercion against Weber and Papi began well before the memorandum of understanding embodying the travel time policy was reduced to writing. The signatures affixed thereto included two triaxle drivers, namely, Jones and Pierce, who between October 21 and December 10, 1975, had claimed travel pay in excess of that allowable under Respondent's policy. Can it be said with any degree of certainty that the object lesson afforded by Respondent's treatment of Papi and Weber did not influence their subsequent change in position? 17 The answer, on this record, is obviously, no. Respondent's contention that the so-called Shop Agreement arrived at against such a background, and with employees being denied the services of their exclusive bargaining agent, was condoned by article XII, section 11, of the collective-bargaining agree- ment, and thereby ought be deemed a binding byproduct of collective bargaining is so plainly lacking in merit as not even to raise a colorable claim.18 would condone a pattern of intimidation and coercion , which may well have brought about the claimed "majority" employee support of Respondent's position. Is There is no merit in Respondent's position that the instant proceeding be deferred to arbitration pursuant to the Board's policy in Collyer Insulated Wire, 192 NLRB 837 (1971). Respondent's claim of contract privilege is untenable and raises no genuine issue of interpretation. Board policy designed to facilitate private dispute settlement machinery does not countenance abdication of its jurisdiction to remedy unfair labor practices simply because the party charged has interposed an unfounded contractual defense, predicated upon little more than sophistry. Furthermore, this case concerns a pattern of unlawful interference including discrimination, with the efforts of Papi and Weber to assert rights afforded by the terms of a collective-bargaining agreement. From my understanding of Board policy, arbitration is not considered an effective vehicle for resolving such disputes. Thus, in North Shore Publishing Co., 206 NLRB 42 (1973), and Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972), the Board deemed deferral to arbitration inappropriate with respect to allegations that an employer, by prohibited means, inhibited or precluded access to contractual grievance procedures. Later, in Morrison-Knudsen Company, Inc., 213 NLRB 280 (1974), this limitation of the Collyer doctrine was extended to allegations concerning discriminatory retaliation for an employee's verbal protestation of an employer's assignment of work to other crafts in alleged violation of a union contract. Accordingly, on authority of Morrison-Knudsen, supra, the Board will exercise its exclusive jurisdiction with respect to alleged unlawful acts of reprisal, coercion, or discrimination directed against employees who RAM CONSTRUCTION CO. 775 2. Interference, restraint, and coercion a. Direct dealing Undisputed evidence shows that Respondent bargained directly and individually with its truckdrivers in initially seeking the understanding at the December 10 meeting, and by urging them on after December 18, 1975, to sign the memorandum of understanding . These actions were taken without knowledge, consultation, or presence of a represen- tative of Local 341. The claim by the Respondent that the "memorandum of understanding" simply incorporated a preexisting policy, understood and agreed to by the drivers, is regarded as immaterial. On the basis of the testimony of Shuler, Jones, Papi this so-called understanding actually was based upon little more than the fact that employees assigned to triaxle trucks, upon their hire, were told that they would be compensated in accordance with Respon- dent's travel policy.19 Any understanding in existence prior to December 10, 1975, was therefore derived from positions expressed by management to triaxle drivers and their failure to protest. All triaxle drivers were willing to go along with the straight-time arrangement, so long as the 2 hours called for, to and from the Freedom jobsite, compensated them for the travel time expended. The fact that they did so hardly compromised their right to representation by their Union when this no longer proved true ; i.e., when they were spending time on the road for which they were not compensated at all. Lastooka's effort to put an end to the additional claims for travel pay by all four triaxle drivers, pursuant to a formula not sanctioned by the collective-bargaining agreement , and outside of the presence of any union representative, constituted direct dealing with employees interfering with their Section 7 right to engage in collective bargaining through representa- tives of their own choosing . Accordingly, Respondent thereby violated Section 8(a)(1) of the Act. b. The coercive threats in support of the travel time policy The complaint alleges that Respondent, through Lastoo- ka, Shuler, and Castagna, on various dates threatened employees under conditions violative of the Act. The General Counsel argues that these alleged 8(a)(1) violations were committed in support of Respondent's effort to stifle resistance to its travel time policy and to coerce employee approval thereof. protested contract violations , even where those protests had not matured into formal grievances. Based upon the foregoing, and my further view that nothing in Respondent's defense rests upon a colorable claim of contract right, i find merit in the General Counsel's contention that the instant proceeding is inappropriate for deferral to arbitration. 19 Although not necessary to the result reached , it is noted that I did not believe Lastooka's testimony that the alleged agreement had in its ongin at a meeting in 1973. This attempt to portray the "understanding" as having a somewhat formal origin was not corroborated by a single witness. Lastooka was a generally unreliable witness, having a penchant toward self-serving argumentation. His propensity to twist facts in service of his own interests aroused considerable mistrust and, absent corroboration , I am unwilling to accept any of his self-serving testimony. 20 This remark to Mondine amounted to an expression of malice, made in reaction to Mondine's report to Castagna that he had provided the Union information in support of Papi's grievance, and was a warning calculated to discourage an employee from making common cause with others engaged in concerted activity. These allegations are almost entirely substantiated by credited uncontradicted evidence or admission. Based thereon, I find that statements by Lastooka and Shuler, on or about December 11, urging Weber and Papi to abide by the travel time policy or quit, the threat by Lastooka at the grievance session of December 17 to weed out Weber and Papi in reaction to their expressed intent to carry their protest to the Department of Labor, the threat of discharge implicit in Respondent's letter to Weber of January 20, 1976, and the statement to Mondine by Castagna that he "had a job!"20 all constituted independent violations of Section 8(a)(1) of the Act, interwoven with a ruthless effort by Respondent to force its will concerning travel time upon its employees.21 c. The alleged discrimination 22 (1) The transfer of Weber The facts concerning this instance of alleged discrimina- tion are not disputed. Based upon Respondent's admission that Weber was transferred to a tandem truck on December 15 to eliminate differences relative to the travel pay issue, I find that Respondent thereby violated Section 8(a)(3) and (1) of the Act. (2) The refusal to recall Papi The complaint alleges that Respondent violated Section 8(a)(3) and (1) by its refusal to recall Papi on or about December 15, 1975. At that time Papi was temporarily laid off because his triaxle truck was in disrepair. When Weber was transferred to the tandem, Respondent elected not to recall Papi. Instead, Mondine, a tractor trailer driver, who apparently was not party to the travel pay controversy, was designated as Weber's replacement. There is no real question that Mondine had quit Respondent's employ previously, and that by virtue of article XII, section 9, his seniority was to be automatically terminated thereby. Nor can there be any question that Papi, at least by operation of the contract, was senior to Mondine. Nonetheless, Respon- dent claims that Mondine possessed greater length of service, by virtue of its unwillingness to regard the earlier quit as affecting the continuity of his seniority. Lastooka claimed that he believed that, despite a quit, the Company had discretion to continue seniority. This belief, according to Lastooka, was derived from conversations with Heine- man as to what other companies had done. Here again, 21 The evidence does not support the allegation concerning coercive interrogation , which therefore is dismissed. 22 Respondent contends that the instant record does not support any 8(aX3) findings whatever since there is no evidence that Respondent knew of, or harbored any animus toward, union activity. Respondent's position seems based upon a narrow construction of the proscriptive scope of that section of the Act. For here no question exists that Respondent knew, and acted in retaliation against , the efforts of Papi and Weber to avail themselves of the benefits of union representation by opposing a manage- ment policy which conflicted with the governing collective-bargaining agreement. Sec. 8(aX3), while protecting employees who engage in "organizational" forms of union activity, contrary to Respondent's conten- tion, also condemns the discouragement of union membership inherent in reprisals against those who avail themselves of the employment benefits derived from such status. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lastooka impressed me as willing to stretch the truth to serve his own ends in circumstances where the probabilities render it entirely unlikely that any union representative would ever have expressed such a view. The seniority relationship between union members is a sensitive subject, often giving rise to internal squabbles which, experience in collective bargaining has shown, have been mitigated through carefully drafted contract regulations. Aside from the interest of union officials in avoiding such controver- sies, any condonement by a labor organization of an employer's discretion as to who shall have continuous service and who shall not is to enable an employer to pick and choose between employees, a result totally inconsistent with the generally accepted purpose of a seniority system. Once more, Lastooka was reaching for argumentation, rather than fact, to avoid lawful consequences of his action. In any event, the inference that the failure to recall Papi was a further step in Respondent's campaign of intimida- tion is hardly lessened by Lastooka's failure to explain why he would overlook the fact that Mondine had voluntarily quit his job, giving only 3 days' notice, in preferring his retention over Papi.23 Other defenses raised by Respondent to its various actions against Papi are equally unpersuasive. Thus, Respondent points to Papi's membership in Local 249 of the IBT,24 and his failure, upon obtaining a job with Respondent, to transfer to Local 341. Lastooka claims that he first learned of this at the grievance meeting of December 17. He claims that he at that time also acquired information that Papi was retaining seniority with his prior employer, Duquesne Slag Products Company. According to Papi, he quit his prior job at Duquesne Slag after 10 years of service, when notified by an official of that firm that it was going out of business, and that Papi should seek work elsewhere. Papi credibly testified that in September 1975, when he initially obtained a job with Respondent, he informed Shuler that he would go to work, but would not relinquish his seniority because of severance pay claims against his former employer, Duquesne Slag Company.25 Shuler asked if Papi would transfer to Local 341, where- upon Papi responded that he would do so as soon as the severance pay issue with Duquesne Slag was worked out. Duquesne Slag, at the time of the events in issue here, had gone out of business and hence no seniority existed at that firm. Thus, Papi was not holding or accumulating seniority .,at more then one location" in violation of the contract.26 With respect to the issues concerning Papi's membership in Local 249, it is noted that the applicable collective- bargaining agreement contains an 8-day union-security clause which authorizes an employer to discharge any noncomplying employee, upon union request. Though Local 34l's officials were apprised of Papi's membership 23 Curiosity is also aroused by the fact that no one ever informed Mondine, pnor to January 1976, that Respondent did not regard his seniority as having been prejudiced by the earlier quit. 24 Local 249 is a member of the Joint Counsel of Teamsters, No. 40, and its members are covered by the same collective-bargaining agreement as employees of Respondent. 2a Papi explained that he was not talking about seniority in the strict sense of the term, but was only concerned that if Local 241 was entitled to severance pay or any benefits from Duquesne Slag he did not want to lose out status, at no time was Respondent requested to enforce the union-security clause against him. The expressed concern of Lastooka for Papi's alleged dual seniority status and his membership situation struck me as entirely contrived in the effort to build a case against Papi, so as to justify the reprisals taken against him because of his lack of cooperation with Respondent concerning the travel time issue. These asserted grounds for both denying Papi recall on and after December 17, 1975, and for discharging him on January 20, 1976, are rejected as pretextual. Upon the total record, including Respondent's honoring continuous seniority on the part of Mondine in violation of unambiguous terms in the collective-bargaining agree- ment; by retaining Mondine on active employment status while Papi, the more senior employee, was denied recall; and by the direct animus manifested towards Papi as a result of his refusal to accept the travel time policy, I find that the denial of recall to Papi was in furtherance of Respondent's unlawful effort to coerce acceptance among its employees of the travel time arrangement. Respondent thereby violated Section 8(a)(3) and (1) of the Act. (3) The discharge of Papi On January 20, 1976, Lastooka, by letter, notified Papi of his termination, reciting the alleged grounds therefor. Among those reasons were grounds heretofore rejected by me as pretextual. The remaining factors listed by Lastooka related to Papi's resistance to the "shop agreement," and his initiation of proceedings before the Department of Labor and the National Labor Relations Board, which, in my opinion, constituted the real motivating factors leading to his termination. Accordingly, I fmd that Papi was discharged on January 20, 1976, in violation of Section 8(a)(1), (3), and (4) of the Act. (4) The termination of Weber On January 20, 1976, Lastooka, while Weber was in layoff due to weather conditions, notified Weber by letter that his refusal to adhere to the "shop agreement" would result in immediate dismissal. Lastooka at no time agreed to sign the "shop agreement" and he was never recalled, despite the fact that Respondent's operations subsequently reached full employment levels. Considering the content of the January 20, 1976 letter, I find that the failure to recall Weber was based upon his failure to meet the conditions set forth therein, and for all intents and purposes was the equivalent of a discharge. I fmd that Respondent thereby violated Section 8(a)(3) and (1) of the Act.27 26 See art. XII, sec. 10, type 3. 27 Contrary to the General Counsel, I deem the evidence insufficient to establish that the termination of Weber was motivated by considerations prohibited by Sec. 8(aX4) of the Act. Although Weber was a beneficiary of the charge filed by Papi on January 12, 1976, there is no evidence that Respondent considered Weber responsible for that action, and no reasonable grounds for drawing such an inference exists. RAM CONSTRUCTION CO. 777 CONCLUSIONS OF LAW 1. Respondent, John M. Lastooka, trading as Ram Construction Company, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Building Material and Construction Drivers Local 341, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent has independently violated Section 8(a)(1) of the Act by bargaining directly and individually with its employees concerning terms and conditions of employment and by entering into individual contracts with them, setting conditions inconsistent with the terms of an existing collective-bargaining agreement, without partici- pation of the exclusive bargaining representative. 4. Respondent independently violated Section 8(a)(1) of the Act by requesting that employees quit their employment and by threatening discharge unless employ- ees agreed to adopt policies or enter individual contracts, which provided them less benefits then available under a current collective-bargaining agreement, or because they gave evidence in support of an employee's grievance against the Respondent, or because they intend to seek recourse under Federal law. 5. Respondent engaged in no act of interrogation of employees violative of Section 8(a)(1) of the Act. 6. Respondent violated Section 8(a)(3) and (1) of the Act since December 15, 1975, by refusing to recall Germano Papi from layoff and by changing the job assignment of Dennis Weber because of refusals to assent to a policy providing lesser benefits than available under the terms of a subsisting collective-bargaining agreement. 7. Respondent violated Section 8(a)(4), (3), and (1) of the Act by discharging Germano Papi, on January 20, 1976, because of his refusal to assent to a policy, or sign an individual employment contract, whereby he would receive lesser benefits than those required by the subsisting collective-bargaining agreement, and because he filed unfair labor practice charges against the Respondent with the National Labor Relations Board. 8. Respondent violated Section 8(a)(3) and (1) of the Act by, on January 20, 1976, discharging Dennis Weber because he refused to adhere to a travel time policy, and to sign an individual employment contract, authorizing benefits less than those required by the terms of a subsisting collective-bargaining agreement. 9. The unfair labor practices found above have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in various unfair labor practices, it will be recommended that it cease 25 Counsel for Respondent devotes a substantial segment of his brief to a charge that I "inappropriately interposed [my]self in the testimony." In support of this claim, it is asserted that "the administrative law judge actively advocated the position of the General Counsel to the detriment of Respondent." In my view, to join issue with Respondent on the merits of such a claim would be entirely inappropriate, and of no conceivable value to a reviewing authority in assessing the merits of such a charge. and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Since the discriminatory discharges involve conduct striking at the heart of the statutory protection afforded under the Act, a broad order is recommended, requiring Respondent to cease and desist from "in any other manner" interfering with, coercing, or restraining employees in the exercise of their Section 7 rights. It having been found that Respondent discriminatorily transferred Dennis Weber on December 15, 1975, to a less desirable position, it will be recommended that Respon- dent make him whole for any loss of earnings resulting therefrom and, in compliance with other terms of this Order, reinstate him to his former position. It having further been found that Respondent unlawfully refused to recall Germano Papi on December 15, 1975, and thereafter discharged Germano Papi and Dennis Weber on January 20, 1976, it will be recommended that Respondent offer to each of these employees immediate reinstatement to his former position or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights and privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings they may have suffered by payment to each of them a sum of money equal to that which they would have earned, but for the discrimination against them, less net interim earnings. Backpay shall be computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding,28 and pursuant to Section 10(c) of the Act, I issue the following recommend- ed: ORDER 29 John M. Lastooka, trading as Ram Construction Compa- ny, Canonsburg, Pennsylvania, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Bargaining individually with employees with respect to any term or condition of employment outside the presence of their exclusive representative, and urging them to sign an individual contract or quit, or threatening them with discharge if they decline to sign any such agreement. (b) Discouraging membership in a labor organization by discharging, transferring to a less desirable position, refusing to recall from layoff, or in any other manner discriminating with respect to an employee's terms and conditions of employment because he refuses to execute an individual employment contract and insists that his employer abide by the terms of an existing collective- bargaining agreement. 29 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 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Discharging or otherwise discriminating against any employee because he has filed charges under the Act. (d) In any other manner interfering with, coercing, or restraining employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the purposes of the Act: (a) Offer Germano Papi and Dennis Weber immediate reinstatement to their former positions or, if no longer available, to substantially equivalent positions, without loss of seniority or other rights and privileges, and make them whole for any loss of earnings sustained by reason of the discrimination against them, in accordance with the provisions 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, time cards, personnel records and reports, and all other records 30 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 a necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Canonsburg, Pennsyl- vania, copies of the attached notice marked "Appendix." 30 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representatives, shall be posted by Respon- dent 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED the complaint be, and it hereby is, dismissed as to any alleged violation of the Act not found herein. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."