Commercial Contracting Co. Of San Antonio, Inc.

784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Commercial Contracting Company of San Antonio, Inc. and Alfred Atkins. Case 10-CA-21930 29 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 2 February 1987 Administrative Law Judge William N. Cates issued the attached decision: The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 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, Commercial Contracting Company of San Antonio, Inc., Mary- ville, Tennessee, its officers agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. E. Walter Bowman III, Esq., for the General Counsel. Courtney N Pearre, Esq. (Heiskell Donelson, Bearman, Adams, Williams & Kirsch), of Knoxville, Tennessee, for the Respondent. Alfred Atkins, pro se. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case was tried at Knoxville, Tennessee, on 3 December 1986.1 The charge was filed by Alfred Atkins (Atkins) 11 August, and the complaint was issued 15 October al- leging that Commercial Contracting Company of San Antonio, Inc. (Respondent or the Company) violated Section 8(aX3) and (1) of the National Labor Relations Act (the Act), by laying off and thereafter failing and re- fusing to reinstate Atkins allegedly because of his union or protected concerted activity. The primary issue pre- sented is whether Respondent selected Atkins for layoff 1 All dates are in 1986 unless otherwise indicated. in order to avoid his appointment to the position of union steward. I find that it did. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Texas corporation with an office and place of business located at Maryville, Tennessee, where it is engaged in business as a construction contractor. Re- spondent, during the calendar year preceding issuance of the complaint, purchased and received at its Maryville, Tennessee facility materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. The complaint alleges, Respondent in its answer admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. H. LABOR ORGANIZATION INVOLVED The complaint further alleges, Respondent also admits, and I further find that the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 519 (the Union) is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Material Facts Respondent at the time of the hearing performed con- struction work at the Aluminum Company of America plant at Alcoa, Tennessee. Respondent has maintained a work presence at this particular site since about 1977 except for 9 months during 1983. The various craft em- ployees utilized by Respondent on its jobs are represent- ed by local craft unions affiliated with the Knoxville Building and Construction Trades Council and the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 519 (Local 519). Respondent is, signatory to a collective-bargaining agreement with the Trades Council and Local 519 effec- tive from 3 July 1984 through 30 June 1989. The agree- ment provides for an exclusive hiring hall requiring that Respondent secure new employees from the respective craft unions and only when the unions are unable to supply qualified applicants within 48 hours of Respond- ent's request may Respondent then secure employees from any other source. Further, the agreement specifical- ly provides at article 18.12 that seniority shall not be rec- ognized or applied to employees working on projects under the agreement. A final provision pertinent to the case sub judice is found at article 16 relating to union representation. Thus, article 16.2 provides for the ap- pointment of union stewards on the job as the unions' representatives while article 16.5 provides that, "when employees are laid off, the job steward will be the last 283 NLRB No. 126 COMMERCIAL CONTRACTING CO. man laid off provided he is capable of satisfactorily per- forming the work remaining." Atkins is, and has been since May 1973 , a member of Local 519. From Respondent's records, it appears that Atkins was initially employed by Respondent 2 weeks in 1978. He was subsequently employed by Respondent on three separate occasions with the last period of employ- ment beginning on 1 November 1985.2 During his last period of employment, Atkins worked as a truckdriver hauling construction materials and personnel around the jobsite. For most of this period, he was one of only two such drivers, the other being Carl Johnson, the designat- ed steward for Local 519. Atkins testified that he was told by Johnson in Decem- ber 1985 that Johnson was contemplating retiring in Feb- ruary. Atkins looking toward his own retirement and pension eligibility some 9 years down the road, and seek- ing to enhance his job security by the privileges ex- tended stewards under the bargaining agreement to be laid off last from a job, expressed his interest in the stew- ard's position to Ted Porter, Local 519's business agent, in February. According to Atkins, Porter agreed to des- ignating Atkins as the steward on Johnson's retirement. Johnson continued to work past his contemplated Feb- ruary retirement, however, and Atkins likewise contin- ued to work. In the meantime, in late April Atkins com- plained to Johnson about some of the other crafts doing some of the truckdriving, and asserted that Johnson was not able to perform his share of the work so that Re- spondent needed to hire an additional driver. Johnson, according to Atkins, agreed to take the matter up with Project Manager Moore. A few hours later, Moore ap- proached Atkins on the jobsite and stated that he had heard Atkins had been "bitching and complaining." Atkins related what he had told Johnson and added that Johnson was about "75 percent dead" in performing his duties. Further, Atkins testified he told Moore that he had been offered the steward's job "as quick as Johnson, retired" and when he became steward he "would look after those type of things more than Carl did." Atkins testified that although Moore made no response to Atkins' assertion about becoming a steward, he had a "very unpleasant look on his face." Respondent did hire an additional driver, Melvin R. Owens, on 13 May contemporaneous with Respondent's startup of a second shift. However, Atkins was assigned to that second shift . Atkins complained that his assign- ment interfered with certain of his nonjob-related com- mitments, and after a few days he was restored to the day shift with Owens taking the second shift. On 9 July, Atkins was the only driver laid'off in a re- duction in force. Shocked over his selection and Owens' retention, Atkins telephoned Moore and asked to leave work early so that he could consult with Local 519 about his layoff. Moore granted him permission to leave. The record does not reflect what, if any, complaints Atkins made to the Union after leaving work early. In 2 The testimony of Respondent's project manager James Sidney, Moore indicates that following the initial period of employment , Atkins was re- ferred to his employment with Respondent by Local 519 after Moore re- quested him by name. - 785 any event, however, Atkins telephoned Moore at Moore's home on Saturday, 12 July. Atkins testified that he asked Moore why he was laid off and Moore com- plained about Atkins' attitude saying Atkins would have to change it. However, still according to Atkins, Moore never explained the attitude complaint, and instead stated that when "you didn't want somebody to become stew- ard you laid them off before they made steward." Fur- ther, Moore added twice that he knew it was dirty the way "we done you." Following Atkins' layoff Respondent on 19 August hired two new employees through the Union, Randall Stooksbury and Jess O'Dell. Respondent also requested the referral by name of an additional employee , Thomas Vanosdale. The General Counsel relies on Business Agent Porter's testimony , to argue that the July layoff was unnecessary and therefore pretextual because Re- spondent requested Vanosdale's referral within a week of Atkins' layoff. However, I view Porter's testimony as too vague to establish exactly when Respondent asked that Vanosdale be referred . It is clear that when Vanos- dale was initially- referred, the referral was withdrawn when Porter learned of it and insisted that a referral could not be made by name request. However, Vanos- dale was subsequently employed by Respondent later on 22 August after it appeared that there were no other qualified drivers on the referral list ahead of him. Re- spondent's records reflect ' that Johnson retired on 29 August. Owens became the steward. Based on Moore's testimony, at least two additional drivers, Calloway and Zachery, were referred to Respondent by,the Union at some point in time after Atkins' layoff. The record does not reflect, however, exactly when they were hired. B. Respondent 's Position Respondent's position on Atkins' layoff was related primarily through Moore who was supported by the tes- timony of Respondent's project superintendent Darryl Humpke and Ironworker General Foreman Herbert Minton. Moore testified that most of Respondent 's major contract work had been completed on the ', job by early July, and alleged additional work on the job was being acquired sporadically, Respondent's need for drivers was reduced at the time of Atkin's layoff. Moreover, Moore related that around 9 July he noticed on various occa- sions a driver or two sitting around idle.' Moore dis- cussed what he, observed with Humpke , Minton, and Bill Bert, another superintendent on the job, who recom- mended that they lay off one teamster . Respondent was not bound by seniority so Moore elected to lay off Atkins rather than Owens. Atkins was selected, Moore testified, because he had gotten somewhat "cranky." Moore explained that when asked to do something, Atkins would ask where Owens was or if Johnson could not do the job. Atkins would also complain that Johnson was not carrying his share of the load., Minton testified that he recommended Atkins be laid off because be felt Owens was better qualified and because Atkins, when told to do something, would inquire where the other driver was. Further, Atkins would question ironworkers under Minton about who issued the order when they 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would ask him to -do something. Humpke's testimony was generally in accord with that of Moore and Minton.' Minton and Humpke specifically denied the union ac- tivity of Atkins was a consideration in their respective recommendation of his selection for layoff. Humpke tes- tified further that Atkins had never complained to him about a violation of work rules or bias on the part of Re- spondent against the-Union. No evidence was presented to reflect that Atkins- was a chronic grievance filer or that he had filed any grievances in the past. Moore acknowledged, that he had a lengthy telephone conversation initiated by Atkins on 12 July. Moore testi- fied, however, that. in that `conversation he only told Atkins he had been selected for layoff because,he had become cranky and ornery and was not doing the work as well as Owens. Moore could not recall -any reference to the steward's position in the conversation. Moore con-, ceded on cross-exa_ urination that he did not particularly want Atkins back. He further conceded that during one referral request, he asked the union representative, whose name was not specified, what Atkin's status was and he was told that Atkins was far enough down the list that he would not be referred at that time. C. Conclusions The General Counsel argues that the 9 July layoff was pretextual and not economicaly motivated. I fmd the record does not suggest that Respondent's decision to have a layoff of a driver was based on any consideration unlawful under the. Act. The testimony of Moore on the status of Respondent's work at the time of the layoff was not contradicted. And I have already found the evidence insufficient to establish a request by Respondent for Van- osdale's referral was made anytime near the layoff. That Respondent did not need three drivers at the time of the layoff is supported circumstantially by the fact that it ap- parently operated between 9 July and 19 August with only two drivers., Accordingly, I conclude the decision for a layoff was not pretextual and only, Respondent's se- lection of Atkins for the layoff is in issue, and only if this selection was based' on reasons prohibited by the Act can it be said that Respondent violated the Act. It is undisputed that Respondent had the right under the collective bargaining agreement to ignore seniority in making its layoff selection. It was therefore entitled to make a selection' on the basis of any lawful criteria such as job qualifications or past job performance. It could not under the- Act, -however, make- a selection based on any anticipation that Atkins would be designated a union steward, for the occupation of the position of union steward and the proper performance of stewards' duties is 'protected under the Act as a legitimate union activity. Discrimination based on designation as a steward is a violation of Section 8(a)(1) and (3) of the Act. See John P. Bell & Sons, Inc., 266 NLRB 607 (1983). Union animus is inherent in such discrimination. In cases such as the instant one turning on employer motivation in actions adversely affecting employees, it is incumbent on the General Counsel to establish a prima facie - showing sufficient to' support the inference that protected conduct was a "motivating factor" in the em- ployer's action. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899-(1st Cir. 1981), cert. denied 455 U.S.. 989 (1982), approved in NLRB v.- Transportation Manage- ment Corp., 462- U.S. 393 (1983). Once a prima facie case is established, the burden shifts to the employer to dem- onstrate that the same actions would have taken place even in the absence of the protected conduct. In the in- stant case, evidence of Respondent's unlawful motivation is found in Atkins' testimony of Moore's telephone re- marks on 12 July. If Atkins, is credited, the General Counsel's prima facie case is established. As a witness, Atkins appeared smug and almost arro- gant. His responses to questions were frequently -expan- sive and sometimes indirect, particularly on cross-exami- nation. However, his testimony regarding the remarks at- tributed to Moore was deliberate, emphatic, and consist- ent with his written statement given -the Board during the-investigation of the case. I could detect no insincerity in him. Moore's testimony was' delivered in a calm manner and he displayed no outward manifestations of prevarication. His recollection, however, of the remarks in the conversation' with Atkins on 12 July was abbrevi- ated although he admitted the conversation, was a lengthy one. What is most significant, however, is that Moore did not specifically deny the remarks Atkins- at- tributed to him and only generally testified that he could not recall anything in reference, to the steward's posi- tion.3 In view of this absence of specific denial, I fmd the testimony of Atkins fully credible on Moore's '12 July remarks. The accuracy of Atkins' testimony and the absence of a legitimate basis for his layoff selection is circumstantial- ly supported by the failure or inability of Respondent's witnesses to detail specific deficiencies in Atkins' job per- formance or identify specific instances of Atkins' at- tempts to avoid work assignments. For the most part, the testimony of Moore, Humpke, and Minton on Atkins' performance was vague, generalized, and conclusionary. Moreover, there is no evidence that any warnings or rep- rimands were ever issued to Atkins or any other discipli- naryaction taken against him in connection with any of the work deficiencies or attitude problems now claimed by Respondent. Humpke did specify one instance in 1985 when he talked to Atkins for 45 minutes in the cab of his truck due to Atkins not wanting to take- the "semi" to get a trailer in the absence of a direct order from Humpke. The incident fails to be convincing as a consid- eration in Atkins' layoff selection because it occurred more than- 7 months prior to the layoff without any evi- dence of a repetition of the incident. Moreover, and `in any event, Atkins on rebuttal emphatically and, I find, credibly denied Humpke's testimony on this matter. 'Crediti'ng Atkins' testimony establishes the General Counsel's prima facie case- that Respondent selected Atkins for layoff because of his anticipated future desig- nation as a job steward for Local 519. In view of Re- spondent's failure to establish Atkins' claimed job defi- ciencies and in light of Owens' comparative inexperience a Moore had expressed this lack of recall earlier in a letter of position to the Board investigator dated 10 September in which he stated, "Fur- thermore, I do not recall making a statement to that effect that [Atkins] was let go before he became a union steward." COMMERCIAL CONTRACTING CO. as a truckdriver in the construction industry,4 it cannot be said that Respondent has proved that Atkins would have been selected for layoff even in the absence of his anticipated designation as union steward. Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) of the Act as alleged in the selection of Atkins for layoff on 9 July. CONCLUSIONS OF LAW 1. Commercial Contracting Company of San Antonio, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of" America, Local Union No. 519 is a labor organization Within the meaning of Section 2(5) of the Act. 3. By laying off its employee Alfred Atkins on 9 July 1986 because of his anticipated future designation as the union steward for Local 519, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The unfair labor practice set forth in paragraph 3 above affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily laid off Alfred Atkins, it must offer him reinstatement and make whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of layoff to the date of proper offer of reinstatement, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977).5 Consistent with the Board's de- cision in Sterling Sugars, 261 NLRB 472 (1982), it will also be, recommended that Respondent be required to remove from its records and files any reference to the unlawful layoff of Atkins and notify him in writing that this has been done and that evidence of the unlawful layoff will not be used in connection with future person- nel action against him.6 4 Porter testified that Owens had only a few weeks of construction site driving experience prior to his referral by the Union to Respondent. Porter stated the difference between an over-the-road freight driver and a construction driver was equivalent to the "difference in day and night." However, although Porter conceded that he could not say that Owens was not qualified for Respondent's driving work , he related that he could not be more qualified than Atkins or any other driver employed by Re- spondent. 5 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 6 The General Counsel's brief contains a request for a visitatorial pro- vision in the remedy. However, no specific circumstances warranting the inclusion of such a provision on the facts of this case were cited. Accord- ingly, and because the Board does not include such provisions in the ab- sence of specific justification (see, e g., 0 L. Willis, Inc., 278 NLRB 203 (1986)), 1 shall not recommend the inclusion of such a provision here. 787 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Commercial Contracting Company of San Antonio, Inc., Maryville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against any employee due to his or her anticipated designation as union steward by Intenational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local1Union No. 519, 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a)' Offer Alfred Atkins immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice 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 discrimina- tion against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful layoff of Atkins and notify him in writing that this has been done and that the layoff will not be used against him in future personnel actions. (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 undler the terms of this Order. (d) Post at its facilities in Maryville, Tennesse, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, 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. 7 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. 8 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 'of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual . aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT layoff or otherwise discriminate against any of you in anticipation of your selection or designa- tion as a union steward by- International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local Union No . 519, or any other labor orga- nization. - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Alfred Atkins 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 WE WILL , make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings , plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. COMMERCIAL CONTRACTING COMPANY OF SAN ANTONIO, INC.