Drury Construction Co.

DRURY CONSTRUCTION CO. Drury Construction Co. and William Edward Pinkerton. Case 14-CA-14948 March 8, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On September 28, 1981, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 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, Drury Con- struction Co., Cape Girardeau, Missouri, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. 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 Member Jenkins would award interest on backpay in accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980) DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard before me in St. Louis, Missouri, on August 11, 1981, upon the General Counsel's complaint which alleges that the Respondent, Drury Construction Co., laid off, and has refused to recall, William E. Pinkerton because of Pinkerton's activity on behalf of his Union and because he engaged in protected concerted activity. The Respondent is alleged to have violated Sec- tion 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq. It is also alleged that an agent of the Respondent threatened Pinkerton with probable discharge for engaging in protected concerted activity. While admitting the layoff of Pinkerton, the Respond- ent generally denies that it has committed any unfair labor practices and affirmatively contends that Pinkerton was laid off and has not been recalled due to the unavail- ability of work. Upon the record as a whole, including my observation of the witnesses and my having given due consideration to the briefs and arguments of counsel, I hereby make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a division of Drury Company In- corporated, a Missouri corporation engaged in the build- ing and construction industry. It annually receives in excess of $50,000 worth of goods, products, and materi- als directly from outside the State of Missouri. The Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 574, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (herein the Union), is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. lit. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts As noted above, the Respondent is a division of Drury Company Incorporated, an organization engaged in var- ious enterprises, including construction, the operation of motels in several midwestern States, and related activi- ties. The Respondent has been engaged in construction since 1950 and since then has had collective-bargaining agreements with various labor organizations representing employees in the construction industry, including the Union. William Pinkerton has been a member of the Union for about 17 years, and from April 1973 until he was laid off on April 3, 1981, regularly worked for the Respondent as a truckdriver doing work covered by the various col- lective-bargaining agreements the Respondent had with the Union. These contracts cover employees engaged in "heavy and highway" construction, as opposed to "building" construction. Beginning in October 1979 Pinkerton principally worked on the Respondent's West Park Mall project, al- though he occasionally hauled materials and did related work at other of the Respondent's construction sites. On March 31, 1980, the secretary-treasurer of the Union no- tified the Respondent that Pinkerton had been appointed by the Union to serve as its steward on the Respondent's several projects. Before that time there had been no des- ignated steward among the Union's members working for the Respondent. At the times material herein there were about 24 employees working for the Respondent, of whom only 3 were members of the Union. 260 NLRB No. 93 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pinkerton testified that he was instructed by the Union to force the various companies working on the mall pro- ject, including the Respondent, to assign the work of truckdriving to members of the Union. And he testified that he understood this to be his obligation as a steward and to be required by the collective-bargaining agree- ment-that the work of truckdriving was to be done by members of the Union. Thus, Pinkerton testified that, during his time as ste- ward, on 10 or 12 occasions (most of which were in early 1981) he observed members of other crafts, as well as nonunion people, driving trucks. And he undertook to stop this. On these occasions he would have discussions with Martin Jansen, the manager of Drury Construction Co., who told Pinkerton he had no right to tell non- members of the Union they could not haul material on the job. Pinkerton responded by stating that it was his job as a steward to attempt to prevent such hauling, which Jansen replied, "Well, who the hell does the Teamsters Union think they are." In March the Union's business agent visited the West Park Mall project and talked to various subcontractors on the job about not employing members of the Union. The next morning, according to Pinkerton, Jansen stopped him and asked what the problem was. Pinkerton told him and, according to Pinkerton, Jansen said, "All I have to say is you are going to miss a lot of work over this kind of problem." Jansen testified about this conversation. He denied making the statement attributed to him by Pinkerton, tes- tifying that he said, "We have been working together in the past. We are working together now, and we hope to continue to work together in the future." Jansen testified that the reason he had this conversation with Pinkerton was because Pinkerton was insisting that when trucks were moved a member of the Union do it. Jansen testi- fied that he thought Pinkerton was "overdoing" this "ac- tivity." The Respondent's work on the West Park Mall project was completed on March 5, although the Respondent had another contract at that location to do remodeling work. On April 3 Pinkerton was advised by Jansen that he was laid off for lack of work. There was some over-the-road truckdriving available, however, if not through the construction company, through other of Drury Company Incorporated's enter- prises. However, it was known to the Respondent that Pinkerton did not like over-the-road work. Although Jansen stated that this was one factor in Pinkerton's layoff, the principal reason was lack of work. Jansen fur- ther testified: Q. Was there work available for Mr. Pinkerton to do after April 3? A. There was a minimum amount of work. Q. But nevertheless there was work available'? A. There was work that needed to be performed by someone. Corroborating Jansen's testimony in this regard, Pin- kerton testified that on several occasions following his layoff on April 3 he noticed nonmembers of the Union driving the Respondent's trucks and hauling materials to various construction sites, particularly including the "Silver Spring" project. Finally, Pinkerton testified that, during the 8 years of his employment with the Respondent, he had been on layoff status a total of only 8 to 12 weeks (apparently ex- clusive of the winter of 1978 when at his request he was off from work most of that time). It is uncontroverted that, during his tenure of employment, Pinkerton normal- ly worked for the Respondent about 50 weeks a year, much of it on a 40-hour-a-week basis. Following his layoff on April 3, Pinkerton made sever- al trips to the Respondent's office, and talked to Jansen on at least one occasion asking for work. He was advised that no work was available. The Respondent brought forth no evidence that fol- lowing April 3, 1981, its total amount of heavy construc- tion work was substantially diminished from that which it had performed in the previous several years. B. Analysis and Concluding Findings I. The layoff and failure to recall An employer may lay off and refuse to reinstate an employee for any reason he chooses other than one pro- scribed by the Act-because the employee has engaged in union or other concerted activity protected by Section 7. The Respondent admits that Pinkerton was laid off on April 3, 1981. While the Respondent denies the allega- tion that Pinkerton has not been reinstated, it is clear that he has not, although he applied for work and has been available. Thus, the principal issue in this matter concerns the Respondent's motive in laying off Pinkerton and/or fail- ing to rehire him. And on this issue, as all others, the General Counsel has the burden of proof. However, where the facts establish prima facie that a proscribed motive precipitated the respondent's action, then the burden shifts to the respondent to show that it would have acted in the same way even absent the employee's union or other protected activity. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). On the record before me I am persuaded that the evi- dence does establish prima facie that Pinkerton's activity in attempting to enforce the contract as he understood it (requiring the Respondent and other employees on the construction project to use members of the Union to drive trucks) was the precipitating cause of his layoff and the Respondent's subsequent refusal to rehire him. Further, I am persuaded that the Respondent has not brought forth sufficient evidence to prove that absent Pinkerton's known activity as steward for the Union he would nevertheless have been laid off and not recalled. First, it is noted that the Respondent had steady work for Pinkerton for 8 years. Pinkerton testified uncontro- vertedly that he worked an average of 50 weeks a year for the Respondent. There is no evidence that the total volume of the Respondent's construction business was so much less after April 3, 1981, that it had no work availa- ble for an admittedly senior, and apparently competent, employee. 722 DRURY CONSTRUCTION CO. Jansen testified that after April 3 there was in fact Teamsters work available that "someone had to do." While it is true that Pinkerton had in the past refused to do over-the-road driving, and presumably would have refused it if offered in 1981, nevertheless the Respondent brought forth no persuasive evidence that there was in- sufficient local construction work available for him to do. Indeed. Jansen's testimony indicates the contrary. From Jansen's testimony, as well as from Pinkerton's concerning his observation of nonunion employees driv- ing trucks, I certainly can infer that after April the Re- spondent continued to have Teamsters work available. Jansen's statements to Pinkerton on and after April 3 that the Respondent had no work were not accurate. The Respondent notes that much of the work of driv- ing its 50 trucks had historically been done by non- members of the Union, and that its contract with the Union covers heavy construction. Such does not mean, however, that there was not work available for Pinker- ton within the work jurisdiction of the contract. Given Jansen's testimony and the fact that Pinkerton had steady employment for 8 years leads me to conclude that work was available-absent some persuasive evidence to the contrary. The only evidence presented by the Respond- ent was Jansen's conclusionary statement that the Re- spondent had no work for Pinkerton at the time he was laid off. No evidence was presented concerning the sub- sequent availability of work, or the lack of it. Given that there was in fact work available for Pinker- ton and that he was a relatively long-term employee of the Respondent, the question becomes: Why was he laid off on April 3 and why has the Respondent refused to recall him? The only conceivable answer is Pinkerton's activity, particularly in the early part of 1981, of enforc- ing the contract. I conclude that the reason that he was laid off was be- cause of his "activities"-Jansen's word. Jansen testified specifically that Pinkerton had attempted to cause the Respondent, and others, to use union members for their truckdriving-work which is covered by the collective- bargaining agreement between the Union and the Re- spondent. It was Jansen's opinion that Pinkerton had been "overdoing it." Thus, he had a talk with Pinkerton wherein he stated that they (meaning presumably the Union and the Respondent) had worked together before, were working together now, and, he hoped, would work together in the future. Such was a clear statement that Jansen disapproved of Pinkerton's activity in attempting to enforce the collective-bargaining agreement. And it was this activity which I conclude was the precipitating cause of Pinkerton's layoff and the Respondent's refusal I There is some indication that P'inkcrlon attenlped i) force otller Sub- contractors on the prolectI o i use uninlOl rcmemhbrs he Rcspolidenl thus argues that Pinkertion's acti\is , i Ithis regard u\ as unproteclted ;is hbeing viotlalive of Sectlionl (b)(4) W'hile such ia?! be. the e,.idencc \tih regard to precisely what P'inkerton did and the inlcrreltltionshhip betlcen the other contractors and the Respondent is far front icar Thus. it mar be that Pinkerton's ai"lits . a' perfctli laiiful i:rom the tcstimmons of Janen. it appears that the Respondent had some kind of an arrangcment with other subcontraclor's s herehs Pinkcerion is ould driLe for them and they would pas the Respondent for his time while sine itf 'linkerlonls acts may hase been .olatltlC of Sec 8Xb)(4), such has nol been estah- lished with sufficlentl cerlalnt) Io conclude that hi, actllt "a', unpro iecled to rehire him. The Respondent brought forth no persua- sive evidence to establish that absent this activity Pinker- ton would have been laid off on April 3 and not recalled. Accordingly, I conclude that the General Counsel has established by a preponderance of the credible evidence that, in laying off William E. Pinkerton on April 3, 1981, and failing to recall him, the Respondent violated Sec- tion 8(a)(3) and (1) of the Act. 2. The alleged threat The General Counsel contends that, during the Jansen- Pinkerton conversation following the jobsite visit by the Union's business agent, supra, Pinkerton was threatened with discharge. There is a substantial and direct conflict between Pinkerton's version of this event and that of Jansen. On balance, I am constrained to credit Jansen and discredit Pinkerton. I found Jansen to be a more reli- able witness. His testimony on material matters (includ- ing his version of the conversation with Pinkerton) was adverse to the Respondent's interest. While somewhat hesitant, he was nevertheless candid. I therefore conclude that the conversation occurred as testified to by Jansen. Jansen's statement acknowledged his displeasure with Pinkerton's activity in attempting to enforce the contract, and I rely on this acknowledgment in part in concluding that the Respondent violated Sec- tion 8(a)(3). It does not include a threat of loss of work because Pinkerton had engaged in activity on behalf of the Union. I'. 'I HI I EFFECT OF THE UNFAIR l.ABOR PRACTICES UPON COMMERCF- The unfair labor practices found, occurring in connec- tion with the Respondent's business in the building and construction industry, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act. V. THE RIMEtI)Y Having found that the Respondent unlawfully laid off William E. Pinkerton on April 3, 1981, and refused thereafter to rehire him, I shall recommend that it cease and desist therefrom, and offer him full and immediate reinstatement to his former job, without prejudice to any of his rights or seniority previously enjoyed, or, if that job no longer exists, to a substantially equivalent position of employment, and make him whole for any losses he may have suffered as the result of the discrimination against him as provided for in E W Woolxorth Compa- ny, 90 NLRB 289 (1950), with interest as provided for in Florida Steel Corporation, 231 NLRB 651 (1977).2 Upon the foregoing findings of fact, conclusions of law, and the entire record in this matter, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: See. gentraIls. Imii Plumbing & Itearlng (',. I 1 Nl.RB 716 (1962) 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER3 The Respondent, Drury Construction Co., Cape Girar- deau, Missouri, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Laying off or refusing to recall or otherwise dis- criminating against employees because they engage in any activity on behalf of Teamsters Local Union No. 574, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.4 2. Take the following affirmative action: (a) Offer full and immediate reinstatement to William E. Pinkerton to his former job, without loss of seniority or other rights and privileges he may have enjoyed, and make him whole for any losses he may have suffered as a result of the discrimination against him in accordance with the formula set forth in the remedy section above. (b) Make available to the Regional Director, for exam- ination and copying, all payroll records, social security payment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Cape Girardeau, Missouri, facility, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. 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 find- ings, 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. 4 The unfair labor practices involved in this case appear to be isolated and I do not believe that that shows that the Respondent has a proclivity for engaging in unfair labor practices. Accordingly, the narrow injunc- tive relief is appropriate See Hickmorr Foods, Inc., 242 NLRB 1357 (1979). 5 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint allegations not found herein be dismissed in all respects. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were allowed to par- ticipate and to call, examine, and cross-examine wit- nesses, it has been found by the National Labor Relations Board that we have violated the National Labor Rela- tions Act, as amended. We have been ordered to stop such activity, and to post this notice and to abide by its terms. WE WIL1 NOT lay off or fail to recall to work any employee because of his activity on behalf of Teamsters Local Union No. 54, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILl. offer William E. Pinkerton full and im- mediate reinstatement to his former job, without loss of benefits, seniority, or other rights and privi- leges, or, if that job no longer exists, to a substan- tially equivalent position of employment, and WE WILt make him whole for any losses he may have suffered as a result of the discrimination against him, with interest. DRURY CONSTRUCTION CO. 724