Ricks Construction Company, Inc.

RICKS CONSTRUCTION COMPANY, INC. 295 Ricks Construction Company, Inc. and General (herein called the Union). An amended charge was filed Teamsters & Food Processing Local Union No. by the Union on June 23. 87, International Brotherhood of Teamsters, Thereafter, on September 26, the Regional Director Chauffeurs, Warehousemen and Helpers of for Region 31 of the National Labor Relations Board America. Case 31-CA-9922 issued a complaint and notice of hearing alleging a viola- tion by Ricks Construction Company, Inc. (herein called November 16, 1981 Respondent), of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein called the Act). The answer and amended answer, duly filed, deny the BY MEMBERS FANNING, JENKINS, AND commission of any unfair labor practices. ZIMMERMAN The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and On June 23, 1981, Administrative Law Judge to introduce relevant evidence. Since the close of the Gerald A. Wacknov issued the attached Decision hearing, a brief has been received from the General in this proceeding. Thereafter, Respondent filed ex- Counsel. ceptions and a supporting brief. Upon the entire record, and based upon my observa- Pursuant to the provisions of Section 3(b) of the tion of the witnesses and consideration of the brief sub- National Labor Relations Act, as amended, the Na- mitted I make the following tional Labor Relations Board has delegated its au- FINDINGS OF FACT thority in this proceeding to a three-member panel. The Board has considered the record and the at- I. JURISDICTION tached Decision in light of the exceptions and brief The Board, in a related Decision issued on June 27,2 and has decided to affirm the rulings, findings, and asserted jurisdiction over Respondent finding as follows: conclusions of the Administrative Law Judge and to adopt his recommended Order.2 Respondent, in the course and conduct of its business operations, annually performs services at ORDER the Elk Hills Naval Reserve valued in excess of $50,000 for Williams Brothers Engineering, herein Pursuant to Section 10(c) of the National Labor called Williams. Relations Act, as amended, the National Labor Re- Williams is a Delaware corporation with its prin- lations Board adopts as its Order the recommended cipal place of business in Tulsa, Oklahoma. Williams Order of the Administrative Law Judge and is engaged in the supervision of the exploration, hereby orders that the Respondent, Ricks Con- drilling, and production of petroleum products, as struction Company, Inc., Bakersfield, California, its an agent for the United States Government acting officers, agents, successors, and assigns, shall take through the Secretary of the Navy, at the Elk Hills Naval Petroleum Reserve Number One in Kern the action set forth in the said recommended Naval Petroleum Reserve Number One in Kern County, California, and received in excess of Order. $50,000 per month net operating fee from the United States Government during the same period I Respondent has excepted to certain credibility findings made by the of time described above. Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- Williams in the course and conduct of its oper- bility unless the clear preponderance of all of the relevant evidence con- ations annually purchases and receives at its Elk vinces us that the resolutions are incorrect. Standard Dry Wall Products. Hills operation, products, goods, and materials Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with his dissent in Olympic Medical Corporation, 250 side the State of California. NLRB 146 (1980), Member Jenkins would award interest on the backpay The operations of Respondent in conjunction due based on the formula set forth therein, with the operations of Williams described above have a substantial impact on the national defense of DECISION the United States. Respondent, in the course and conduct of its op- erations, bought and received at its Bakersfield, GERALD A. WACKNOV, Administrative Law Judge: California, facility products, goods, and materials Pursuant to notice, a hearing with respect to this matter valued in excess of $5,000 directly from points out- was held before me in Bakersfield, California, on March side the State of California. 17, 1981. The initial charge was filed on March 28, 1980,1 by General Teamsters & Food Processing Local The instant complaint contains identical jurisdictional Union No. 87, International Brotherhood of Teamsters, allegations. Respondent admits that it annually performs Chauffeurs, Warehousemen and Helpers of America services valued in excess of $50,000 for Williams, and admits the allegation concerning the nature and extent of All dates or time periods herein are within 1980 unless stated to be otherwise. RicAs Construction Company. Inc.. 250 NLRB 250, 251 (1980). 259 NLRB No. 43 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams' operations at the Elk Hills Naval Reserve. On March 19, the Union terminated the strike and sent However, Respondent's answer claims "no direct knowl- the following telegram to Respondent: edge" that Williams purchases in excess of $50,000 worth of goods and material from outside the State of Califor- TEAMSTERS LOCAL 87 HEREBY MAKES AN UNCONDI- nia for such operations, or that the operations of Re- TIONAL OFFER TO RETURN ALL RICKS CONSTRUC- spondent and Williams have a substantial impact on the TION EMPLOYEES TO THEIR JOBS NO LATER THAN 5 national defense of the United States. PM MARCH 19, 1980. INASMUCH AS OUR PICKET LINE The General Counsel relies on the Board's jurisdiction- WAS AN UNFAIR LABOR PRACTICE PICKET LINE, al determination in the foregoing case as being sufficient TEAMSTERS LOCAL 87 DEMANDS THAT ALL EMPLOY- to establish jurisdiction herein, and so advised Respond- EES RETURNING TO WORK AS PER THIS TELEGRAM ent at the hearing. Respondent presented no evidence on BE REINSTATED TO THEIR FORMER POSITION NO the issue of jurisdiction. LATER THAN 5 PM MARCH 19, 1980. PLEASE BE AD- On the basis of the foregoing admissions of Respond- VISED THAT REFUSAL TO RETURN ANY OF THE ent, I find that the Board's jurisdiction over Respondent ABOVE MENTIONED EMPLOYEES TO THEIR FORMER has been established under the national defense standards POSITION WILL SIMILARLY BE CONSIDERED UNFAIR enunciated by the Board in Ready Mixed Concrete & Ma- LABOR PRACTICES. terials, Inc.,3 and that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) Thereafter, apparently on or shortly after March 20, and (7) of the Act. Respondent reinstated the great majority of employees to their former jobs. However, on and subsequent to March II. THE LABOR ORGANIZATION INVOLVED 20, Respondent's supervisors, while assemblying the crews prior to the customary 7 a.m. starting time, re- t is admitted and I find that the Union s, and has fused to reinstate approximately 20 returning strikers been at all times material herein, a labor organization who had timely reported for work, advising them that within the meaning of Section 2(5) of the Act. they had been replaced or that their positions had been III. THE ALLEGED UNFAIR LABOR PRACTICES filled.5 Various employees who were refused reinstatement on A. The Issue and after March 20 testified that they had been working for Respondent for substantial periods of time in the The principal issue raised by the pleadings is whether same job classifications, that they worked a regular Respondent refused and/or delayed the reinstatement of workweek on a full-time basis, and were on a permanent unfair labor practice strikers following the Union's un- employment roster maintained by Respondent. Respond- equivocal application for reinstatement on their behalf. ent's area manager, Irvin Gramling, testified that, al- B. The Facts though Respondent's foremen maintain a daily roster of regular employees, nevertheless none of Respondent's Respondent has a contract with Williams Brothers En- employees are considered to be permanent employees. gineering to provide labor for the drilling of oil and gas Gramling, by way of explanation, testified that he would wells, and related operations, at the Elk Hills Naval Pe- not characterize himself as being a permanent employee troleum Reserve Number One in Kern County, Califor- even though he has occupied his position for 5 years. nia. Gramling further stated that, following the receipt of In Ricks Construction Company, Inc., supra, the Board the aforementioned telegram on March 19, Respondent found that Respondent had violated Section 8(a)(5) and did not issue any directive or instructions to its foremen (1) of the Act by failing and refusing to recognize and regarding reinstatement of the strikers, and thus the fore- bargain with the Union following the Union's certifica- men were apparently permitted to use their own discre- tion, on November 27, 1979, as collective-bargaining rep- tion regarding reinstatement. Gramling surmised that the resentative of the employees involved herein,4 and by foremen "may have had their crews already filled up" on failing and refusing to furnish the Union with certain rel- the morning of March 20, or that there was insufficient evant and necessary information for the purposes of col- work available, as justification for the failure of the fore- lective bargaining. men to reinstate the employees to their former jobs. On March 10, prior to the Board's June 27 decision in Gramling acknowledged that some strike replacements the aforementioned case, the Union commenced a strike hired between March 10 and March 19 were again against Respondent in protest of Respondent's continued "hired" on the morning of March 20. However, he was failure and refusal to bargain. Some 100 of Respondent's unable to estimate the number of strike replacements so approximately 135 to 150 employees participated in the employed. strike. C. Analysis and Conclusions '122 NLRB 318 (1958). While Respondent implicitly suggests, by certain ques- 'The unit is described as follows: tions directed to the General Counsel's witnesses at the All roustabouts, lead roustabouts, crane operator, backhoe operator, h that there may have been another reason for the pushers, and working foremen employed by the Respondent at Elk Hills Naval Reserve, but excluding all office clerical employees, pro- fessional employees, guards, all other employees, and supervisors as " The record indicates that some of these 20 employees were reinstated defined in the Act. at a later date, and that some have not yet been reinstated. RICKS CONSTRUCTION COMPANY, INC. 297 strike, the unrebutted record evidence shows, and I find, facturers, Inc., 230 NLRB 558, 571 (1977); Kayser-Roth that the strike was instituted for the purpose of protest- Hosiery Co., Inc., 187 NLRB 562, 567 (1970). ing Respondent's continued failure to bargain with the Union following Board certification. Indeed, the Board, CONCLUSIONS OF LAW on June 27, determined that Respondent's failure so to 1. Respondent is an employer engaged in commerce bargain and to provide certain requested information was violative of Section 8(a)(5) and (I) of the Act. I therefore find that the strike, commencing on March 10, was an 2. The Union is a labor organization within the mean- unfair labor practice strike. Even assuming arguendo a ing of Section 2(5) of the Act. dual motivation for the strike, it is clear that the afore- 3. The strike which commenced on March 10 was an mentioned unlawful conduct of Respondent was a princi- unfair labor practice strike. pal reason therefor. Thus, the strike was nevertheless an 4. By failing and refusing to reinstate unfair labor prac- unfair labor practice strike. See Larand Leisurelies, Inc., tice strikers on and after March 20, Respondent has vio- 213 NLRB 197, fn. 4 (1974), enfd. 523 F.2d 814 (6th Cir. lated and is violating Section 8(a)(3) and (1) of the Act 1975). as alleged. An employer is obligated to reinstate immediately unfair labor practice strikers to their former positions of THE REMEDY employment upon application, discharging, if necessary, Having found that Respondent violated and is violat- any employees hired as replacements during the strike. Stanley Building Specialties Co., a subsidiary of the Stanley and thend Works, 166 NLRB 984, 986 (1967), enfd. sub nom. United it be required to cease and desist therefrom and from in any like or related manner interfering with, restraining, Steelworkers of America, Local 5571 [Stanley-Artex Win- or related manner intering with, restraining, dows, Division of the Stanley Works], 401 F.2d 434 (D.C. or coercing its employees in the exercise of the rights Cir. 1968); United Brotherhood of Carpenters and Joiners guaranteed under Section 7 of the Act. of America. AFL-CIO. Local Union No. 1780, 244 NLRB Having found that Respondent has discriminatorily re- 277 (1979); Atlas Metal Parts Co.. Inc., 252 NLRB 205 fused to reinstate the unfair labor practice strikers upon (1980), and cases cited therein at fn. 9. the Union's unconditional application on their behalf to The undenied and credible testimony of various em- return to work, Respondent shall be required to offer ployees who sought to return to work following the them immediate and full reinstatement to their former strike clearly demonstrates that Respondent's foremen, positions or, if such positions are no longer in existence, who possessed the authority to reinstate the employees, to substantially equivalent positions without prejudice to determined that they had been replaced and refused to their seniority or other rights and privileges, discharging give them preference over replacements hired during the if necessary any replacements. Further, Respondent shall strike. While there is no contention and no record evi- be required to make them whole for any loss of pay they dence that the foremen were motivated by a discrimina- may have suffered as a result of the discrimination tory intent, such treatment of unfair labor practice strik- against them. Backpay shall be computed in accordance ers is inherently discriminatory and nonetheless unlawful. with the formula set forth in F. W Woolworth Company, Moreover, although Area Manager Gramling speculated 90 NLRB 289 (1950), and Florida Steel Corporation, 231 that there may have been no work available on March NLRB 651 (1977). See, generally, Isis Plumbing & Heat- 20 for some of the approximately 20 employees involved ing Co., 138 NLRB 716 (1962). Moreover, Respondent herein, Respondent has not presented any probative evi- shall be required to post an appropriate notice to em- dence in support of this contention, particularly as the ployees. record evidence shows, and Gramling concedes, that an Upon the foregoing findings of fact, conclusions of unknown number of strike replacements were employed law, and the entire record herein, and pursuant to Sec- subsequent to March 20. Thus, I find that Respondent tion 10(c) of the Act, I hereby issue the following rec- has failed to sustain its burden of proof. See Kayser-Roth ommended: Hosiery Company. Inc. v. N.L.R.B., 447 F.2d 396, 401 (6th Cir. 1971). ORDER6 Respondent's apparent contention that the employees involved herein were simply casual or daily laborers The Respondent, Ricks Construction Company, Inc., who reported to work each day without assurance that Bakersfield, California, its officers, agents, successors, they would be "hired" is totally specious and I discredit and assigns, shall: Gramling's assertions in this regard. Rather, the uncon- 1. Cease and desist from: tradicted record evidence shows, and I find, that Re- (a) Failing and refusing to reinstate unfair labor prac- spondent's employees are assigned to specific job classifi- tice strikers upon their unconditional application to cations and work crews, that they are employed on a return to work on or about March 20, 1980. regular full-time basis, and that they are permanent em- ployees. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the On the basis of the foregoing, I find that, by failing Rules and Regulations of the National Labor Relations Board, the find- and refusing to reinstate the unfair labor practice strikers ingS. conclusions, and reommended Order h be adopted by the Board in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and named in the complaint, Respondent has violated Section become its findings, conclusions. and Order, and all objections thereto 8(a)(3) and (1) of the Act as alleged. Gulf States Manu- shall be deemed waived for all purposes 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, re- APPENDIX straining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the Act. NOTICE TO EMPLOYEES 2. Take the following affirmative action which it is POSTED BY ORDER OF THE found will effectuate the policies of the Act: NATIONAL LABOR RELATIONS BOARD (a) Offer to the striking employees for whom the An Agency of the United States Government Union made unconditional application to return to work on about March 20, 1980, immediate and full reinstate- After a hearing at which all sides had an opportunity to ment to their former positions or, if such positions no present evidence and state their positions, the National longer exist, to substantially equivalent positions, dis- Labor Relations Board found that we have violated the charging if necessary any replacements, without preju- National Labor Relations Act, as amended, and has or- charging if necessary any replacements, without preju- dice to their seniority or other rights previously enjoyed, ered us to post this notice. and make them whole for any loss of pay or other bene- The Act gives employees the following rights: fits suffered by reason of the discrimination against them in the manner described above in the section entitled To engage in self-organization "The Remedy." To form, join, or assist any union (b) Preserve and, upon request, make available to the To bargain collectively through representa- tives of their own choice Board or its agents, for examination and copying, all payroll records, social security payment records, time- To engage in activities together for the pur- cards, personnel records and reports, and all other re- pose of collective bargaining or other mutual aid cords necessary to analyze the amount of backpay due or protection under the terms of this Order. To refrain from the exercise of any or all such (c) Post at Respondent's facility at Bakersfield, Califor- activities. nia, and at appropriate locations at the Elk Hills Naval WE WILL NOT fail to reinstate unfair labor prac- Reserve where Respondent customarily posts notices to tice strikers upon their unconditional application to its employees copies of the attached notice marked "Ap- return to work. pendix."' Copies of said notice, on forms provided by WE WILL NOT in any like or related manner in- the Regional Director for Region 31, after being duly terfere with, restrain, or coerce employees in the signed by Respondent's representative, shall be posted by exercise of the rights guaranteed by Section 7 of the it immediately upon receipt thereof, and be maintained National Labor Relations Act. by Respondent for 60 consecutive days thereafter, in WE WILL offer the unfair labor practice strikers conspicuous places, including all places where notices to for whom the Union made unconditional applica- employees are customarily posted. Reasonable steps shall tion to return to work on or about March 20, 1980, be taken by Respondent to insure that said notices are immediate and full reinstatement to their former po- not altered, defaced, or covered by any other material. sitions or, if such positions are no longer in exist- (d) Notify the Regional Director for Region 31, in ence, to substantially equivalent positions discharg- writing, within 20 days from the date of this Order, what ing if necessary any replacements, without prejudice steps Respondent has taken to comply herewith. to their seniority or other rights and privileges. WE WILL make the said employees whole for any In the event that this Order is enforced by a Judgment of a United loss of pay they may have suffered as a result of the States Court of Appeals, the words in the notice reading "Posted by discrimination against them, with interest. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." RICKS CONSTRUCTION COMPANY, INC.