Marko Contractors, Inc.

MARKO CONTRACTORS 425 Marko Contractors, Inc. and Laborers' District Council of West Virginia, affiliated with the La- borers' International Union of North America, AFL-CIO. Case 9-CA-19708-3 14 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 September 1984 Administrative Law Judge Richard L. Denison issued the attached deci- sion. The Respondent filed exceptions. The Board has considered the decision and the record in light of the exceptions and has decided to affirm the judge's rulings, findings,' and conclu- sions and, to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Marko Con- tractors, Inc., Parkersburg, West Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' Chairman Dotson joins his colleagues in agreeing with the judge that the Respondent's supervisor Fink unlawfully interrogated employee Browning when Fink asked Browning , "You signed a card , didn't you?" following Browning's unsuccessful inquiry in February 1983 about being recalled to work. In view of the fact that any additional finding of un- lawful interrogation would be duplicative Chairman Dotson finds it un- necessary to pass on the legality of other instances of questioning of em- ployees by Fink which occurred from mid-December 1982 through Janu- ary 1983 at a restaurant and at the jobsite. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard at Huntington, West Virginia, on June 12, 1984. The original charge in Case 9-CA-19708- 3 was filed by the Union on May 26, 1983, and subse- quently amended on July 14, 1983.1 The complaint, issued July 15, and subsequently amended, alleges that the Respondent violated Section 8(a)(1) of the Act by engaging in a number of incidents of unlawful interroga- tion, and threats of discharge and other retaliation if its employees selected the Union as their collective-bargain- ing representative. The complaint also alleges that about February 17 the Respondent failed to recall Thurman Browning from layoff status and discharged him on May 6 because of his union activities, in violation of Section 8(a)(1) and (3) of the Act.2 I All dates are 1983 unless otherwise specified. 2 Official notice is taken of the Board 's decision in Marko Contractors, 269 NLRB 990 (1984), in which the Board denied the General Counsel's motion for summary judgment in this matter. The Respondent's answer, as amended, denies the alle- gations of unfair labor practices alleged in the complaint. On the entire record in the case, including my consider- ation of the oral argument of counsel for the Respondent and the brief filed by the General Counsel, and observa- tion of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION Based on the allegations of paragraph 2 of the com- plaint, as amended, admitted by the Respondent's answer, as amended, I find that the Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Furthermore, based on the allega- tions of paragraph 3 of the complaint, admitted by the Respondent's answer, I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Credibility The General Counsel called three witnesses in this proceeding. They are: Dave Wilson, an organizer for the International Union of Operating Engineers, Thurman Browning, the alleged discriminatee in this matter, and Wendell Kirk, a former employee of the Respondent who worked for Marko at the time of the events in issue. Each of these witnesses testified in a positive, candid, clear, and convincing manner. Except for an inability to remember precise dates, a common failing among wit- nesses which experience has proven to be, in most in- stances, insignificant, each testified in a clear, concise, positive, candid, and convincing manner. The testimony of each remained very much intact after cross-examina- tion. Since the Respondent chose to rest without calling any witnesses, their testimony stands unrebutted. I am persuaded that they were telling the truth. Therefore, each of the General Counsel's witnesses is credited. In accordance with that testimony, I find as follows: B. The Supervisory Status of John Long Thurman Browning and Wendell Kirk testified that Supervisor John Long directed the work of the work crews on which they served, under the general supervi- sion of the Respondent's superintendent, and admitted supervisor, Ray Fink. New employees on a job were usually told by Fink, as he pointed at Long, "That man over there will show you what to do." Long had the keys to the work shop, and signed for material received in Fink's absence, which was 40 to 50 percent of the time. Since the testimony shows that during the period in question John Long possessed and exercised authority which included some of the indicia of supervisory status described in Section 2(11) of the Act, I find that both John Long and Ray Fink are now, and have been at all times material herein, supervisors within the meaning of Section 2(11) of the Act, and agents of the Respondent within the meaning of Section 2(13) of the Act. 275 NLRB No. 63 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Background and the Origins of the Union's Campaign At all-times material herein, Marko Contractors, Inc. has been a West Virginia corporation, having offices in Parkersburg, West Virginia, where it has been engaged in the business of a highway construction confractbr As such, the Company was one of the signers of a collec- tive-bargaining agreement between an association known as the Constructors Labor Council of West Virginia, Inc., and a number of unions in the construction trades. After the agreement expired on December 15, 1981, Marko declined to honor the terms of the agreement fur- ther and discontinued accepting workers from the Unions' hiring halls. Contending that the Company did not-properly serve upon the Unions the required notice of an intention to terminate the agreement, they filed suit in the United States District Court for the Southern Dis- trict of West Virginia and, likewise, instituted an organiz- ing campaign among Marko's - employees, in, October 1982. The Respondent first employed Thurman Browning for 4 days as a temporary employee in June 1981, when he was referred for work by, the Carpenters Union. Browning was again hired by Marko in November 1982, and worked near Barboursville, West Virginia, on a bridge construction site together with=approximately- six to eight other employees, under the supervision of Su- perintendent. Ray Fink and Supervisor John Long. He also worked on another -bridge Respondent was con structing near Branchland, West Virginia. Shortly after . he was employed by the Respondent in 1982, he was re- cruited by one of his neighbors -to assist in organizing the Respondent's employees. Browning-met with the Union's representatives on November 29, 1982. He . signed a union card, and acceded to the union organizers' request that he serve as an employee organizer in their organiza- tional drive. Thereafter, Browning,talked to other em- ployees in favor of the Union, attempted to persuade his fellow worker, Wendell Kirk, to sign an authorization card, and arranged for Kirk to meet with the union rep- resentatives, a meeting which, Kirk never attended.. Browning also talked-in favor of the Union to other of his fellow employees. D. The Violations of Section 8(a)(1) of the Act Shortly after Browning's organizational efforts began, Respondent's Supervisors Ray Fink and John Long began interrogating employees and threatening Aem in what I find-to be a clear effort to stifle the organizational drive through an unlawful interference , restraint, and co- ercion. Thus, the following incidents occurred: It was the habit ,of. a number of employees who worked for the Respondent at the Barboursville jobsite to frequent a restaurant named the Pit and Parlor before beginning work each day. Among those who visited the restaurant were Ray Fink, Thurman Browning, and Wendell Kirk . During the period mid-December 1982 through January 1983, Kirk utilized these sessions at the Pit and Parlor in an effort to obtain information about the Union and to discourage employees from organizing. Thus, Fink asked Browning on three or four occasions whether a union had, talked to him about signing a card, or if the Union had contacted him. He also told Brown- ing that if the Union got in the Company would not be able to stay and would have to go bankrupt, because it couldn't afford the union benefits. In addition, he asked Wendell Kirk if anyone from the Union had called him, and, at another time, if he had heard any union talk or heard from anyonee from the Union. Fink also engaged in similar- activity on the jobsite. In January he asked Browning if the Union had contacted him, while working on the deck of the Barboursville bridge. At another time at the same location, Fink in- quired concerning whether the Union had contacted Browning, and what he had told them. At still another time, while Kirk and Browning were riding in a compa- ny truck on the job, Browning asked Fink how much work they were going to have that winter, and if they would work all winter. Fink answered that they-had "all kinds of work" if the Union didn't get in. However, Fink said that if the Union succeeded in organizing the Com- pany, they would have to go bankrupt because Marko couldn't afford the benefits. Wendell Kirk further described how on several other occasions he was told by Fink that the Company might have to fold up because of the Union 's wages, that he did not think the Company could afford the Union, and if the Union got in the Company might have to go into bankruptcy. On February 3 the building trades unions filed a peti- tion with the Board's Regional Office in Cincinnati seek- ing a representation election on behalf of the Respond- ent's construction project workers. Notice of the exist- ence of that petition was received by the Respondent on February 7. On February 8, Browning, Kirk, and the other Barboursville employees were sent home early be- cause of bad weather. A few days later Browning re- ceived a telephone call from John Long, who instructed him to report to the jobsite. Browning did so, and, when he arrived, entered into the following discussion with Long and Kirk. Long commented that Fink was not present because he was attending a meeting with the Union.and the Company "about something." He said that somebody was tipping the Union off and they were. going to get rid of him if they found out who it was. Following this discussion, no other employees appeared, and, consequently, Browning and Kirk were sent home. About a week later, after the weather had cleared, Browning telephoned Fink and inquired concerning when to report for work. Fink answered he did not know, since a bunch of workers got with the Union and signed union cards. Then Fink uttered. the accusation, "You. signed a card, didn't you?" Browning said he had, and Fink exclaimed, "Well." Browning ended the con- versation by telling Fink, "Call me whenever we. go back." It was not long thereafter that Kirk learned from his nephew that work had resumed. However, when he called Fink, Kirk was told, "Well, we're not really going full blast right now, but in a day or so, or a few days, I'll give you a ring." Later, when Kirk was recalled,, Fink told him, "I heard you had something to do with the MARKO CONTRACTORS union'too.'That's one reason why I wasn't going to call you' back." Fink said that he had changed his mind and contacted Kirk in order to avoid having to train a new employee. Three- or four days later, Fink asked Kirk if he had heard anything from Browning. Kirk said he had not, and asked Fink why Browning had not been recalled.; Fink responded, "Well, I heard he had something to do with the' union. He started the union down here." From the sequence of events recited above, it is clear that the, interrogation of Browning and Kirk by the Re- spondent's supervisors was intended not for lawful pur- poses,-but was conducted with a view toward obtaining information upon which the Respondent could act in a retaliatory manner, thereby discouraging the organiza- tional effort. Thus, the Respondent violated Section 8(a)(1) of the Act by interrogating its employees, 'as al- leged in the complaint Further confirmation 'of this in- tention is supplied by the express and implied threats, of retaliation and discharge which both accompanied and immediately followed the questioning. I likewise find these remarks to be violations of the Act, as alleged in the complaint, and the Respondent will be ordered to post an appropriate notice to remedy these violations. E. The Failure to Recall Thurman Browning and His Subsequent Discharge in Violation of Section 8(a)(3) and (1) I have already related, at the end of the preceding sec- tion of this decision, the conversation between Fink and Kirk upon the resumption of work at the jobsite, in which Fink answered Kirk's question about why Brown- ing had not been recalled by saying that he had heard Browning had something to do with the Union and had started the Union "down here." In addition, the record shows that Browning was the only employee who did not return to work following this particular layoff. Nev- ertheless, four new employees were hired. Thereafter, Kirk informed Browning that they had returned to work, whereupon Browning called Fink and asked if he was going to be among those recalled. Fink answered that he could not use Browning at that time He denied hiring new people at Barboursville, but admitted that he had hired one at Branchland. Fink knew where Browning lived, and that it was closer for him to work at the Branchland site. One of the new employees employed after the resumption drove the truck which Browning had driven Another new worker was employed finishing concrete. Since the Respondent did not honor traditional construction craft guidelines, these duties were clearly ones which Browning could have performed. On ap- proximately May 9 Browning 'received a letter dated May 6, from Nicholas Morey of the Respondent, stating, In reviewing our records, we have determined that our work demands in the foreseeable future are such that you will not be recalled to work; and we suggest that you seek employment elsewhere. You have been terminated on our records. The letter was received at a time when the Respondent's operations normally were in a hiring phase in expectation 427 of the resumption of work in the spring. The letter also coincided with the arrangements to conduct a mail ballot election among the Respondent's employees during the month of May. ' I find that the Respondent violated Section 8(a)(1) and (3) of the Act by failing and refusing to recall Browning, and by subsequently terminating him Following the in- terrogation of Browning and other of the Respondent's employees, at the outset of the organizational drive in an effort to acquire information on which to act, the Re- spondent threatened its employees with discharge, cessa- tion of operations, and other specific and implied repris- als if they selected 'the Union as their collective-bargain- ing representative. Thereafter, following the end of the layoff for bad weather, Kirk was told specifically that Browning had not been recalled because he had some-, thing to do with the Union and had started the Union there. Likewise, Browning was told by Fink that he did not' know when they would be returning to work be- cause a bunch of workers had got with the Union and signed authorization cards. This was followed by a ques- tion concerning whether Browning signed a card. When Browning admitted he had, Fink responded with a very significant "Well." Under all these circumstances, includ- ing the fact that new employees were hired to perform work which Browning could have performed, I find that it is clear that Browning was not recalled from layoff and, in addition, was subsequently discharged because of his activities on behalf of the Union. Thus, the Respond- ent violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6),-and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union activities, and thereafter threatening employ- ees with discharge, cessation of the Company's oper- ations, no recall from layoff status,. and discharge be- cause of their union activities, the Respondent violated Section 8(a)(1) of the Act. - 4. By failing and refusing to recall Thurman Browning from layoff status during February 1983, and by dis- charging him about May, 6, 1983, the Respondent violat- ed Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The Respondent did not violate the Act in any re- spects other than those specifically found. THE REMEDY Having found that-the Respondent is engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. . Since the Respondent discriminatorily failed and re- fused to recall Thurman Browning from layoff status in 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1983, and about May 6, 1983, discharged him from Respondent's employment, I find it necessary to order that the Respondent make Browning whole by of- fering him immediate and full reinstatement with back- pay computed on a quarterly basis, plus interest, as pre- scribed in F. W, Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977).3 I shall also order the Respondent to remove from its personnel files any references to the failure and refusal to recall Thurman Browning from layoff status in February 1983, and his subsequent discharge about May 6, 1983, and notify him, in • writing that this has been done, and that the evidence of - this unlawful action shall not be used as a, basis for 'future personnel actions against him. Furthermore, I shall order the Respondent to post an ap- propriate notice encompassing all violations found to have occurred., . - I - On these findings of fact and conclusions of law and on the entire record , • I issue the following recommend- ed4 ORDER ful action shall not be used as a basis for future personnel actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the. terms of this Order. (d) Post at its Parkersburg, West Virginia offices and at its jobsites copies of the attached notice marked "Ap- pendix."5 Copies of the notice, on forms provided by the Regional Director. for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material . (e) Notify the Regional Director in writing within- 20 days from the date of this Order what steps the, Re- spondent has taken to comply. The Respondent, Marko Contractors, Inc., Parkers- burg, West Virginia, its officers,' agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about union support or union. activities. (b) Threatening employees that the Company will cease operations, or that they' will be discharged, or not recalled from layoff, or be subjected to other reprisals, because of their union sympathies, activities, or desires. (c) Discharging or failing and refusing to recall from layoff Thurman Browning, or any other employee, for the purpose of discouraging employees from engaging in union or protected concerted activities for their mutual aid or protection. (d) 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. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer Thurman Browning immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his -seniority or any other rights or, privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- cnmmation against him, in the manner set forth in the remedy section of the decision. `(b) Remove from its 'personnel files any references to the failure and refusal to recall Thurman Browning from layoff status in February 1983, and his subsequent dis- charge about May 6, 1983, and notify him in writing that this has been done, and that the evidence of this unlaw- 3 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec •102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - 5 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment - of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their union activities in a manner which constitutes inter- ference, restraint, and coercion in violation of Section 8(a)(1) of the Act WE WILL NOT threaten our employees with discharge, the cessation of our operations, that they will not be re- called from layoff status, -or with other unspecified re- prisals because of their union sympathies, activities, or desires. - WE WILL NOT discharge employees nor fail or refuse to recall them from layoff status if the Laborers' District Council of West Virginia, affiliated with the Laborers' International Union of North America, AFL-CIO, or any other labor organization, should be selected as their collective-bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them- in Section 7 of the National Labor Relations Act. WE WILL offer Thurman Browning immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, MARKO CONTRACTORS 429 plus interest, he may have suffered as a result of our dis- unlawful discharge or failure and refusal to recall him crimination against him. from layoff status will not be used as a basis for future WE WILL remove from our-files any references to the personnel actions against him. discharge of Thurman Browning or our failure and refus- al to recall him from layoff status, and notify him in MARKO CONTRACTORS, INC. writing that this has been done , and that evidence of his