Al Monzo Construction Co., Inc.

National Labor Relations Board - Board Decisions

Sep 6, 1972

198 N.L.R.B. 1212 (N.L.R.B. 1972)

1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Al Monzo Construction Co., Inc . and Elmer Goettel
and Dick Ray. Cases 6-CA-5678-1 and
6-CA-5678-2
September 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 12, 1972, Trial Examiner David S.
Davidson issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Al Monzo Construction Co., Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order.2
The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188
F 2d 362 (C A 3) We have carefully examined the record and find no basis
for reversing his findings.
2 Chairman Miller is of the view that neither the allegations of the
complaint nor the findings of the Trial Examiner are supported by a
preponderance of the evidence on the record considered as a whole, and is
of the further view that the purposes of the Act would best be served by a
dismissal of the complaint herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on September 29, 1971, by Elmer Goettel and
Dick Ray, a consolidated complaint issued on January 26,
1972, alleging that Respondent discharged Goettel and
i The General Counsel filed a motion to correct the transcript As the
corrections requested appear to be warranted, the motion is granted
Ray on or about May 28, 1971, because of their union and
concerted activities in violation of Section 8(a)(1) and (3)
of the Act. In its answer Respondent denies the commis-
sion of any unfair labor practices.
A hearing was held before me in Pittsburgh, Pennsylva-
nia, on March 13, 1972. At the conclusion of the hearing
oral argument was waived, and the parties were given leave
to file briefs which have been received from the General
Counsel and Respondent.'
Upon the entire record in this case including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, with its pnnci-
pal office located at Monroeville, Pennsylvania, is engaged
as a pipeline and sewage contractor in the building and
construction industry. At the time of the issuance of the
complaint Respondent was engaged in the installation of
sanitary sewers and force mains in Robinson Township,
Pennsylvania, pursuant to contracts with the Robinson
Township Sanitary Authority having aggregate value of
$3,351,000. In excess of 50 percent of the cost of the
contracts is to be paid with Federal funds received by the
Authority which is an agency of Robinson Township.
During the 12 months preceding the issuance of the
complaint Respondent had received in excess of $988,000
for work pursuant to the contracts and had purchased
goods and materials valued in excess of $5,000 directly or
indirectly from points outside the Commonwealth of
Pennsylvania for use at its Pennsylvania construction sites.
I find that Respondent is an employer within the meaning
of the Act and that it will effectuate the policies of the Act
to assertj unsdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Con-
struction and General Laborers and Material Handlers'
Local Union No. 1058, AFL-CIO, hereinafter referred to
as the Union, is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent operates pursuant to a collective-bargaining
agreement with the Union governing the employment of
laborers on its Robinson Township construction job.
During the month of May 1971, Respondent was perform-
ing work on the job at two separate locations several blocks
apart. It employed a total of about 15 men at the two
locations. The job was under the overall supervision of
198 NLRB No. 183
AL MONZO CONSTRUCTION CO., INC.
Respondent's Superintendent Rody Zivkovic. At each
location the work crew was supervised by a foreman. At
the location here at issue, referred to as the Aiken Road
site , Bill Koerber was the foreman. Zivkovic did not spend
full time at either location, but moved between the two
locations and a construction trailer about half a mile from
the Aiken Road site.
On May 25, Elmer Goettel and Dick Ray, both members
of the Union, went to the union hall to inquire about job
openings. Goettel and Ray were related by marriage. Since
1967, with one exception, they had hired in on the same
jobs, had worked together, and had traveled to and from
work together. Union Business Agent Blackie Sciulli
referred them to Respondent's Superintendent Zivkovic at
the Robinson Township job, and thereafter they were told
to report for work on the following morning. They worked
2 full days at the Aiken Road location, and on the morning
of Friday, May 28, they were given checks for their pay
and were terminated.
The General Counsel contends that they were terminated
because during the 2 days of their employment they voiced
complaints about working conditions and brought their
complaints to the attention of the Union. Respondent
contends that Goettel was laid off because his work was
unsatisfactory and that Ray was laid off at his own request
because he did not wish to continue on the job without
Goettel.
There are substantial conflicts in the testimony of the
witnesses presented by the General Counsel and Respon-
dent. Each contends that his witnesses should be credited
and that those of his opposite should be discredited. In
assessing the credibility of the witnesses I have noted, as
Respondent has pointed out, that the charges in this case
were not filed until 4 months after the events at issue.
Respondent contends that this circumstance coupled with
the fact that the Charging Parties held other jobs until
around the time the charges were filed and have since been
unemployed gives cause to suspect their motives in filing
the charges and to discredit their testimony. While I am
not prepared to discount their testimony entirely for these
reasons, a simple reading of the testimony makes it clear
that by the time the charges were filed, the memories of
those involved had dimmed considerably, and there is
reason to believe that in the attempt to recall events
already several months past at the time of the investigation
of this case, memories became colored to some extent by
the interests then being advanced.
The versions of the Charging Parties Goettel and Ray are
in the main consistent with each other, and considerably
more so than the versions of Respondent's principal
witnesses , Zivkovic, Koerber, and Sciulli. That Goettel and
Ray testified consistently with one another may be in part
explained by the fact that their association was not limited
to working together for Respondent, and they undoubtedly
discussed their recollection of the events with each other
2 There is conflict in the testimony as to when Goettel started cementing
and bricking up the manholes Goettel testified that he started this work on
Thursday morning Koerber testified first that Goettel worked both days on
the manholes, but then indicated that Goettel did not start cementing or
bricking the manholes until Thursday morning Zivkovic testified that
Goettel started this work late Wednesday afternoon and worked on it all
day Thursday According to Zivkovic, Gotttel only worked on one manhole
1213
before giving statements to the Regional Office and before
testifying. Unlike Respondent's witnesses , each also was
present to hear the other testify. In addition, the interest of
Goettel and Ray in this matter was certainly more vital
than that of Respondent' s witnesses and undoubtedly
stimulated them to think over the details of their brief
period of employment with Respondent to a much greater
extent than Respondent' s witnesses . These considerations
lead me to discount the basic consistency of the testimony
of Goettel and Ray as a significant cause to credit them
and at the same time would lead me to discount minor
inconsistencies between Respondent' s witnesses as cause to
discredit them. However, there are some significant
inconsistencies between the testimony of Respondent's
witnesses and between their version of the facts in
testimony, a prior statement of Zivkovic, and a letter
written by Respondent's president which cannot be so
easily ignored. Indeed, in the light of these inconsistencies,
I find it impossible to credit the essentials of Respondent's
explanation of the layoffs, and to the contrary find cause
to credit a substantial portion of the version of Goettel and
Ray. At the same time, I am persuaded that the testimony
of Goettel and Ray cannot be credited in its entirety, for
despite its consistency, in some respects it shows signs that
it has suffered from some gilding with the passage of time.
For these reasons and those set forth below, I find that the
following reflects the events and circumstances surround-
ing the terminations of Goettel and Ray.
B. The Work Performed by Goettel and Ray on
May 26 and May 27
On Wednesday, May 26, Goettel and Ray started work
at the Aiken Road location. They first worked at getting
loads of pipe, unloading them, and placing the pipe
alongside a trench that was being dug. Later in the day,
they worked with Koerber and another crew member
placing manholes in the trench. On Thursday morning,
Koerber assigned Goettel to cement the manhole castings
and lay several courses of brick around the manhold tops
so that the castings would meet the grade level of the road.
There were two castings to be cemented and bricked up.
Goettel started work on this job Thursday morning and
worked on it all day Thursday, finishing the second
manhole shortly before quitting time on that day.2 Goettel
had not done this kind of work very often before and was
not familiar with it. Koerber testified that he would have
been able to complete the required work on a single
manhole in about an hour's time. According to Zivkovic it
should have taken only half an hour to 35 minutes to finish
a manhole. While Goettel worked on the manholes, Ray
worked with Koerber and another crew member laying
pipe in the trench.
while he was on the job, but Koerber's testimony conforms with Goettel's
that he worked on two I find, as Goettel and Koerber testified, that Goettel
started cementing and bricking up the manholes on Thursday morning, and
that Koerber's initial testimony referred to the placing of manholes on
which Goettel worked with Koerber and Ray on Wednesday. I do not credit
Zivkovic as to when Goettel started cementing and bricking up the
manholes or as to the number he completed by Thursday afternoon
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Complaints About Working Conditions on the
Job
Although there is considerable conflict as to nature of
the complaints and by whom they were made, I find that
while Goettel and Ray were on the job, Goettel and Ray
voiced complaints to Koerber about job conditions.
According to Goettel and Ray, on Wednesday and
Thursday they complained several times to Koerber about
a lack of drinking water on the job, and Koerber each time
replied that there was nothing he could do about it and
that his hands were tied.3 They also testified that they
talked about this problem with each other during their
lunchbreak on Wednesday. According to Goettel, on
Wednesday Koerber also told him that there were mostly
company men on the job and that if Goettel wanted to stay
on the job, they would have to do things the Company's
way.4 Goettel testified that at that time Koerber said that
the men had learned from experience not to ask for too
many things because if they did, the Company would get
rid of them. According to both Goettel and Ray, on
Thursday, Koerber told each of them that if he, Koerber,
asked Zivkovic for water, he would be fired.
Koerber testified that within the first hour of work on
Wednesday, Goettel complained to him about the drinking
water on the job, lack of boots and raincoats, and the
safety of the trench. Although Koerber testified that there
was water on the job at all times, he also testified that "the
water I had, they said was not appropriate." Koerber also
testified that he could not recall that Ray made any
complaints, and later testified that Goettel's complaints
about the safety of the trench did not start until Thursday.
Whether or not there was some drinking water on the
job, it is clear that Goettel voiced complaints about the
water and from the testimony quoted above, it appears that
Koerber viewed both of them as complaining. While I am
inclined to view Goettel and Ray's testimony that there
was no water on the job at any time as an exaggeration, it
is clear that they were not satisfied with the provision made
for drinking water, and from Koerber's later testimony
concerning the events on Friday it appears that they may
have been dissatisfied with the container which was
provided. But despite this possible exaggeration, I credit
Goettel and Ray that they both complained to Koerber
about drinking water.
Moreover, I credit Goettel as to Koerber's remarks about
company men and what happened to those who com-
plained, and I also credit Goettel and Ray that Koerber
said that he would not ask Zivkovic about the water for
fear for his own job. Koerber did not contradict their
testimony in that regard, and according to Koerber
although he normally reported complaints to Zivkovic, he
did not report Goettel's complaints to Ztvkovic until after
the terminations in the hope that things would work out.
Whether or not Koerber waited that long to report the
complaints, it is clear that Koerber was hesitant to do so.
Despite the fact that Koerber testified that Goettel also
complained to him about other matters, it is clear that
3 Goettel testified that he spoke to Koerber about the lack of water once
Wednesday morning, once Wednesday afternoon, and again on Thursday
afternoon Ray testified that he spoke to Koerber once Wednesday morning
and once Thursday morning, and was present when Goettel spoke to
Koerber's recollection of the relative timing of events was
poor, and there was no reason for Goettel and Ray to have
played down the scope of their complaints. I find as they
testified that they did not make complaints about other
conditions until Goettel spoke to Zivkovic on Thursday
afternoon, as set forth below. In this connection, however,
Koerber testified that at one point on Thursday Goettel
told Ray that the trench was unsafe as a consequence of
which Koerber exchanged positions with Ray and worked
in the trench to demonstrate that he believed that the
trench was safe. Goettel also testified that on Thursday he
and Ray discussed the condition of the trench between
themselves but did not complain because the job was just
getting started and they thought they would wait to see
what developed. Goettel and Ray were not questioned
about the incident described by Koerber, and it would
appear that although their comments about the safety of
the trench were not directed at Koerber, he was aware of
them.
D. Goettel's Conversation With Zivkovic on
Thursday Afternoon.
According to Goettel and Ray, on Thursday afternoon
when Goettel again complained to Koerber about the
drinking water, Koerber repeated that if he asked for it he
would be fired and told Goettel that if he wanted water he
would have to speak to Zivkovic about it. Although as set
forth, Koerber conceded that Goettel complained on both
days, and testified that he himself did not mention the
complaints to Zivkovic, he was not asked 'if he advised
Goettel to speak to Zivkovic about them. I find that he did.
Thereafter, Zivkovic came to the Aiken Road site and
spoke with Goettel . It is clear that this conversation led to
the terminations of Goettel and Ray, but there is little
agreement as to what was said and what ensued.
According to Goettel and Ray, Zivkovic came to the
Aiken Road site at around 3:30 or 4 p.m., shortly before
quitting time. According to Goettel, at this time he had
completed all his work on the manholes except for cleaning
up. Goettel testified that he asked Zivkovic if he had any
drinking water on thejob, and Zivkovic replied that he did
not and that he had just spoken to Koerber who had told
him that Goettel and Ray were troublemakers. According
to Goettel, he asked how they could be troublemakers and
said that he had asked Koerber for water who told him to
speak to Zivkovic. Goettel testified that Zivkovic replied
that if he didn't like the job conditions, he could "hit the
road." Then, according to Goettel, he said it was not only
the water and mentioned the lack of shoring for the trench
and the lack of boots to wear because it was wet.
According to Goettel, the trench at that time was deeper
than it had been the previous day and in places was as
deep as 12 to 14 feet, with no shoring, with dirt piles at the
top, and with some water seepage in it. Goettel testified
that he also told Zivkovic that there were no sanitary
facilities or hard hats on the job. Goettel testified that
Zivkovic replied that he didn't have to have those things,
Koerber Wednesday afternoon
4 By company men, Goettel understood Koerber to mean men who
worked regularly for Respondent
AL MONZO CONSTRUCTION CO., INC.
that they were not necessities, and that he wasn't going to
get them. According to Goettel, Zivkovic again said that if
Goettel did not like conditions on the job he could get in
his car and hit the road. Goettel testified that he told
Zivkovic that he did not have to hit the road, that he was a
member of the Union, and that he would get in touch with
the Union business agent and have him,on the job the next
morning as there was no steward on the job at that time.
According to Goettel, Zivkovic replied that he didn't give a
damn what Goettel did. According to Goettel, their
argument was loud and both used some obscenties. Goettel
denied that anyone complained to him about his work on
the job.
Ray testified that he heard shouting and hollering and
saw Goettel and Zivkovic arguing. He testified that during
their argument Koerber told him "it looks like you guys are
finished," and Ray said nothing in response. Ray denied
that he ever asked to be laid off because he rode to work
with Goettel and had learned that Goettel was to be laid
off.
According to Goettel and Ray, after Zivkovic's argument
with Goettel, no one said anything further to them, and
both finished up and went home. Both testified that no
provision had been made for shoring the walls of the
trench, and there were no shoring jacks or boots available
at the jobsite. In short, each testified that Goettel's
complaints had merit.
As I have already indicated, I doubt that the water
problem was as extreme as stated by Goettel and Ray, and
as set forth in more detail below, I also doubt whether the
condition of the trench was as serious as depicted by
Goettel and Ray. However, apart from exaggeration as to
the conditions on the job, I am persuaded that Goettel and
Ray's version of their conversations with Zivkovic and
Koerber are essentially accurate, and I cannot credit the
versions of Zivkovic and Koerber as to this encounter.
Zivkovic's testimonial version was that he came to the
job site at around 1 p.m. and went to where Goettel was
working without first speaking with Koerber. According to
him, he had noted that Goettel was still working on the
same manhole as the previous afternoon and he asked
Goettel why it seemed to be taking so long to put a few
bricks on a manhole, to which Goettel replied simply by
hollering out "Fire me." He testified that he then told
Goettel that he would not fire him but was not satisfied
with his work and would have his pay the next morning.
Zivkovic denied that there was any discussion of working
conditions or any profanity used. According to Zivkovic,
he then left the Aiken Road jobsite and returned again
about an hour and a half later when Ray approached him
and asked Zivkovic to lay him off also if Goettel was going
to be laid off because Ray rode to work with Goettel.
Zivkovic testified that he offered to arrange transportation
for Ray so that he could remain on the job but Ray
persisted and Zivkovic acquiesced to his request. Accord-
ing to Zivkovic, it was during this second visit to the jobsite
that he first spoke with Koerber about Goettel's work, and
5 Monzo also spoke with Goettel and Ray a few days after their
terminations and with Sciulli before writing the letter He testified that at
that time Scmlh told him he was not aware of anything
1215
at that time Koerber told him both Goettel and Ray had
refused to wear hard hats on the job and had thrown them
upon the side of the trench.
Zivkovic's statement given during the investigation of the
case gives the following version:
4. I watched Goettel work for about two days. He
obviously didn't want to work because it took him two
days to do a job that should have been completed in
1 /2 hour. I don't remember if I said something to him
about it or not. Goettel and Ray worked for two days. I
decided to terminate Goettel. I called Shulla [sic,
Sciulli I and told him I wanted to fire Goettel. The next
day Shulla came to the site and he was present when I
gave Goettel his check. Ray said he could no longer
come to work because he rode with Goettel. I also paid
Ray for the time he worked.
5. I don't remember either employee complained
about working conditions. Many employees complain
about things not pertaining to work. Goettel was
terminated solely because he performed in an unsatis-
factory manner.
Still a different version appears in a letter submitted to
the Regional Office by Respondent's President Monzo
during the investigation of this case. Although Monzo was
not present at any of the events at issue, he spoke with
Zivkovic and Koerber before sending the letter and based
it on information he received from them.5
In his letter Monzo stated:
The fat boy, it was explained, refused to lay pipe unless
there were boots and rain gear on the job. There was no
water anywhere calling for this gear, and due to the fact
the job was just getting under way, the trailor [sic]
which contains this gear had not arrived on the job yet.
Upon his refusal to work, the superintendent informed
the business agent and he in turn told my superintend-
ent to fire him if he didn't want to work. The brother-
in-law, whom I can only describe as the thin boy,
explained that if the fat boy was fired, he would have to
quit, because he rode to work with him and had no
other means of transportation. Both men were then
told that they were not needed. It was then, my
superintendent told me, that the fat boy began
screaming and hollering that he was going to be the
stewart [sic] on the job and that noone [sic] was going
to work until rain gear was provided on the job .6
In neither Zivkovic's statement nor the letter is there any
mention of the conversation on Thursday in which Goettel
allegedly invited Zivkovic to fire him. Indeed, in the
statement, Zivkovic stated that he could not remember
whether he spoke to Goettel about his work before giving
Goettel his check on Friday. In the letter there is no
mention of Goettel's alleged unsatisfactory work. The
statement denies that either complained about working
conditions, although the letter focuses upon complaints
about boots and rain gear. Contrary to the letter, no one
testified that Goettel refused to lay pipe unless there were
boots and rain gear on the job.7 The letter although not
6 It is clear that the "fat boy" refers to Goettel and the "thin boy" to
Ray
r There is testimony by Ray and Goettel that they would have refused to
(Continued)
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific as to timing appears to refer to the events of Friday
morning and the statement even more clearly gives a
sequence of events in which Ray's request to be laid off
occurred at the time Goettel was given his check on Friday
morning. Yet the decision to terminate Ray must have
been made before then, for the evidence is clear that
Zivkovic had final checks for both Goettel and Ray
prepared the night before.8
Beyond these discrepancies, there are also significant
conflicts between the testimony of Zivkovic and Koerber.
Although Koerber testified that he overheard Goettel tell
Zivkovic to fire him and that Ray told him that he wanted
to be laid off if Goettel was laid off, Koerber's testimony
differs from Zivkovic's in key details. Unlike Zivkovic,
Koerber placed Zivkovic's conversations with Goettel and
Ray both during a single visit by Zivkovic to the jobsite
late in the workday Thursday. Unlike Zivkovic, Koerber
testified that Zivkovic stopped first to speak with Koerber
about Goettel's work before Zivkovic spoke with Goettel.
Unlike Zivkovic, Koerber testified that Goettel completed
work on two manholes on Thursday, and ultimately
testified that Goettel started that work on Thursday
morning. Although Koerber corroborated the substance of
Zivkovic's testimony that Ray asked to be laid off, he
differed with Zivkovic in testifying that Ray first made the
request to Koerber who communicated it to Zivkovic who
then spoke to Ray. Koerber also testified that he said
nothing to Zivkovic about the refusal of Goettel and Ray
to wear hard hats until Friday.
In addition, the testimony of Koerber and particularly
Zivkovtc is internally flawed.
While Koerber testified that Zivkovic asked what was
holding Goettel up in his work and that he replied that
Goettel did not have too much experience at what he was
doing and either could not do it or did not want to, he also
testified that he had not said anything to Goettel about the
amount of time he was taking to do his job and that in
response to inquiries by Zivkovic earlier in the day he told
Zivkovic that the work was progressing wellmnear the end
of his testimony when he was asked if he mentioned
anything about Goettel's work to Zivkovic that evening,9
Koerber answered that he did not.
Moreover, despite Koerber's testimony that he spoke
with Zivkovic about Goettel's work before Zivkovic spoke
to Goettel, he denied that he mentioned Goettel's com-
plaints to Zivkovic at this time or until after Goettel and
Ray were terminated. Yet Koerber conceded that he
normally passed on complaints to Zivkovic, and surely if
Zivkovic asked about Goettel's work and Koerber an-
swered as he testified, this was the logical time for Koerber
to have mentioned Goettel's complaints. It is unlikely that
even then he refrained from telling Zivkovic about them in
the hope of working things out.
When Zivkovic was pressed for detail on cross-examina-
tion, his version of his second visit to the jobsite during
which he spoke to Ray and Koerber became progressively
confused, underwent several changes, and in its final
version lacked coherence. Moreover, with respect to that
conversation, Zivkovic testified that when Koerber told
him that Goettel and Ray had thrown their hard hats up on
the side of the trench, he saw the hard hats laying upon the
bank on one side. When pressed to explain how he knew
they were the hard hats which were given to Goettel and
Ray, he gave a series of unresponsive answers and
ultimately answered that he did not see hard hats on the
ground near the ditch at that time.
These discrepancies taken as a whole are too significant
to write off as attributable to memory lapses ascribable to
the passage of time. Moreover, the successive versions of
Monao's letter, Zivkovic's written statement, and Zivko-
vic's testimony are hardly indicative of failures of memory
which became cured with the passage of time. Accordingly,
I do not credit Zivkovic or Koerber as to the events of
Thursday afternoon, and I credit Goettel and Ray as to the
content of their conversations with Zivkovic and Koerber.
E. The Terminations of Goettel and Ray
After Goettel arrived at home on Thursday, he called the
Union office and asked to speak to Business Agent Sciulli.
As Sciulli was not in, he left a message for Sciulli,
requesting him to come to thejobsite the next day because
there were unsafe working conditions on the job which
Goettel wanted him to straighten out.
Also on Thursday afternoon Zivkovic called Respon-
dent's office which was about 30 miles from the jobsite,
and asked to have final paychecks made up for Goettel and
Ray. Checks, were prepared covering their pay for the 2
days they worked plus 2 hours pay for the next day.
Zivkovic picked up the checks and brought them with him
to thejobsite the next morning.
Although the evidence as to what happened on Friday
morning is as much in conflict as that pertaining to the
prior events, the die had been cast when Zivkovic had the
checks prepared the night before, and consideration of the
evidence relating to Friday is necessary only to the extent
that it sheds light on credibility generally.
It is clear that Sciullf visited the Aiken Road jobsite at
the start of work on Friday, that Goettel and Ray told him
their complaints, that Sciulli looked over the job, that
Sciulli left the Aiken Road site with Zivkovic for about 15
or 20 minutes, and that upon their return Zivkovic gave
Goettel and Ray their final paychecks. Beyond that the
evidence is in substantial conflict.
According to Goettel and Ray, when Sciulli inspected
the jobsite, he confirmed the validity of their complaints
and before leaving the jobsite with Zivkovic told Zivkovic
he would have to shut the job down until conditions were
corrected. They testified that when they were given their
checks after Sciulli and Zivkovic returned, Zivkovic told
them they were fired, they protested to Sciulli, and Sciulli
told them that since they could not get along on the job
work on Friday if their complaints were not met at that time with remedial the jobsite makes it clear that Zivkovic had the checks with him before he
action But they denied that they refused to work or voiced that intention arrived at the job on Friday and there is no contrary evidence
before they were given their checks, and there is no evidence to the 9 It is clear in context that the reference is to his conversation about
contrary Goettel and Ray with Zivkovic late Thursday afternoon
8 The distance between the office where the checks were prepared and
AL MONZO CONSTRUCTION CO., INC.
they should go to the union hall where he would help them
find otherjobs.to
Zivkovic, Sciulli, and Koerber testified to the contrary
that when Sciulli inspected the Aiken Road jobsite he
found all the requirements present, that he so informed
Goettel and Ray, that he did not state that the job would
have to be shut down, and that after Sciulli went with
Zivkovic to check the other jobsite, he acquiesced to
Zivkovic's stated intention to lay Goettel off because he
was unsatisfactory and to lay Ray off at his own request.
I find it unnecessary to consider these conflicts in detail,
for after reviewing the evidence I am persuaded that
nothing in the testimony relating to the events of Friday
impairs the findings reached above as to the critical events
of Thursday. To be sure, there is cause to doubt the
plausibility of the version of Goettel and Ray that Sciulli
found merit in their complaints, threatened to shut the job
down, and then suddenly reversed his field and permitted
Zivkovic to terminate them without any protest of his part.
However, there is equal cause to doubt the contrary
version that all their complaints were baseless and
dismissed out of hand. With respect to one of the matters
of complaint, the lack of boots, Sciulli, Koerber, and
Zivkovic in their testimony, and Monzo's letter gave
varying and inconsistent explanations which far from
establishing that the complaint was baseless tend if
anything to confirm that there were no boots on the job for
Goettel and Ray. While some of the variances in the
testimony of Respondent's witnesses may be attributed to
failures of recollection, others, including the conflict
between the testimony of Zivkovic and Sciullf and
Zivkovic's statement as to where and when Zivkovic and
Sciulli first spoke, indicate more fundamental weaknesses.
I am aware that it is unusual in a case such as this for a
union business agent to testify to corroborate the job
superintendent as to his reasons for discharging two
employees who claim to have been discriminated against.
In the ordinary case his appearance in that role would give
me considerable pause before discrediting his testimony.
But in this case there is substantial reason to believe that
his recollection of the events was poor and was at least in
part reconstructed only long after the events. Sciulli had
been asked to give a statement during the investigation of
this case, but did not do so and testified at the hearing that
he could not recall whether he told the investigator that he
was not sure of the accuracy of his recollection of the
events and declined to give a statement for that reason.
Monzo testified that when he spoke with Sciullf before
writing his October letter to the Board, Sciulli said he
didn't know too much about it. I conclude that Sciulli's
testimony is entitled to little weight. Sciulli may have
indeed viewed the complaints of Goettel and Ray as overly
strong for the circumstances and may have sympathized
with Zivkovic's annoyance with them leading him to raise
no objection to the terminations, but his testimony cannot
serve to corroborate the substantially flawed testimony of
10 Their version was in part corroborated by the testimony of Dwayne
Decker, a job applicant, who was waiting nearby to speak to Zivkovic I do
not attach much credence to Decker's testimony He was at the jobsite as an
applicant and had no occasion to think again of these events until several
1217
Zivkovic and Koerber as to the events leading up to the
terminations or the reasons for them.
One further observation remains with respect to the
reason given for Ray's termination. Unlike the shifting
stories given with respect to Goettel, the reason consistent-
ly stated for Ray's discharge at the hearing, in Zivkovic's
statement, and in Monzo 's letter is that Ray asked to be
laid off when he learned that Goettel was being terminat-
ed. In this connection, there is a conflict between the
testimony of Goettel and Ray as to the circumstances in
which they were given their checks. According to Goettel,
he and Ray were not together when Zivkovic gave Ray his
check and he did not hear what Zivkovic said to Ray.
According to Ray, they were together when Zivkovic
handed them their checks and told them they were fired.
When considered in the light of the joint work histories of
Goettel and Ray these factors raise some suspicion that
there might be some substance to the contention that the
two were laid off for different reasons and that Ray voiced
his unwillingness to continue on the job without Goettel.
However, as already pointed out above there is an
apparent and critical inconsistency between Zivkovic's
testimony and his statement as to when Ray asked to be
laid off. Moreover, the amount paid Ray is consistent with
Ray's version but not Zivkovic's. According to Zivkovic
and Sciulli, Respondent was required to give Goettel and
Ray 2 hours' reporting pay for Friday morning because
Zivkovic was unable to pay them at the end of the
workday. However, the contract provides that if a
workman quits of his own accord, he shall wait for his pay
until the next regular payday. Surely, it does not anticipate
that he will be paid for his normal hours between the time
he quits and is paid. Even if Goettel was entitled to
additional pay because his check was not available on
Thursday, Ray was not entitled to additional pay if he had
quit.
F. Concluding Findings
The reasons for the termination of Goettel and Ray are
to be found in the events of Wednesday and Thursday
which preceded the preparation of their final checks. It is
clear from Koerber's own testimony that Koerber viewed
Goettel as a complainer. It is true that Koerber made no
similar concession as to Ray, and Ray may well have been
less persistent and vocal then Goettel in his complaint
about the drinking water. But they were the only
employees who complained about the water, and Koerber
had also heard Goettel warn Ray that the trench was
unsafe which caused Koerber to exchange places with Ray
in the trench for a while. Koerber must have also observed
that both men were hired on together, rode to and from
work together, and ate lunch together. There is reason to
conclude that Koerber viewed Goettel and Ray as allied in
their complaints.
When Goettel complained to Koerber on Monday,
Koerber cautioned him that there were mostly company
men on the job, and that if Goettel wanted to stay on the
months after they occurred The vagueness of his testimony as to his
contacts with Goettel which led to his appearance as a witness suggests at
least a poor memory of events more recent and more likely to be
remembered if not a simple lack of candor
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job they would have to do things the company way.
Koerber said that the men had learned from experience not
to ask for too many things because if they did, the
Company would get rid of them. On Thursday when
Goettel and Ray again complained to Koerber about the
water, Koerber said that there was nothing he could do and
that if he asked Zivkovic for it, he would fired. fired;
Koerber advised Goettel to speak to Zivkovic if he wanted
the water.
When Goettel thereafter spoke to Zivkovic, Goettel
asked Zivkovic about the water, and Zivkovic replied that
he had just spoken to Koerber who had told him that
Goettel and Ray were troublemakers. When Goettel
challenged that characterization, Zivkovic told him that if
he did not like the job conditions, he could hit the road.
Goettel then expanded his complaint to include the shoring
and boots.[" Zivkovic disputed the validity of Goettel's
complaints and again told Goettel that if he did not like it
he could hit the road. Goettel said he did not have to hit
the road, that he was a union member, and that he would
contact the Union. Zivkovic told Goettel that he did not
give a damn what Goettel did. During this argument,
Koerber told Ray, "It looks like you guys are finished."
Thereafter, Zivkovic had their final checks prepared.
Whether or not the complaint of Goettel and Ray about
the water or Goettel's other complaints had merit, they had
the right to voice them. There was no steward yet
appointed on the job, and their only alternative at the
jobsite was to take their complaints directly to Koerber
and Zivkovic, and when those efforts failed they were
entitled to go to the union business agent, as Goettel said
he would do. The contract anticipated that there might be
disputes over job conditions and safety and specifically
provided that such disputes were not subject to the
grievance and arbitration provision, but that the Union
expressly reserved the right to strike over such disputes.
The contract also provided that Respondent was required
to abide by all local and state safety codes.12 Thus, Goettel
and Ray's complaints were grievances within the frame-
work of the collective-bargaining agreement that affected
the rights of all employees in the unit and constituted
protected concerted activity.13 Moreover, as Goettel and
Ray testified, and as Koerber's testimony with respect to
the shoring tends to confirm, they had discussed their
concern about the water and shoring with each other
before Goettel spoke to Zivkovic about these matters.
The sequence of events in itself shows that the com-
plaints of Goettel and Ray were the cause of their
termination. Whatever dissatisfaction Zivkovic may have
had with Goettel's work, Zivkovic's own prior statement
and Respondent's president's letter undercut any claim
that Zivkovic spoke to Goettel about his work or that it
was the cause of his termination. And there is also
substantial cause to reject Respondent's contention that
Ray quit. To the contrary, Zivkovic's statements to Goettel
11 It is clear from all versions except Zivkovic's that Goettel's complaints
covered both of these additional items Whether they also included hard
hats and sanitary facilities or those matters crept into the version at a later
date, I find it unnecessary to decide
12 The record does not show the extent of state or local safety codes
applicable to the job However, Zivkovic testified that the job was
periodically inspected, among other things for the adequacy of provisions
that Koerber had told him that Goettel and Ray were
troublemakers and his invitation to Goettel to hit the road
if he did not like thejob conditions confirm that Zivkovic's
principal dissatisfaction was with their complaints. That
Zivkovic had little tolerance for complaints about job
conditions is also shown by Koerber's statements to them
described above. 14 While Ray never complained directly to
Zivkovic, he had complained to Koerber, Koerber had
reason to view them as associated in their complaints,
Zivkovic indicated that Koerber had referred to both as
troublemakers, and Koerber told Ray that it looked like
both were through. I conclude that Goettel and Ray were
discharged for engaging in protected concerted activity in
violation of Section 8(a)(1) of the Act. In these circum-
stances, I find it unnecessary to decide whether Goettel's
stated intention to take his complaints to the union
business agent contributed to the decision to discharge
them and whether the discharges also violated Section
8(a)(3) of the Act, as the remedy in any event would be the
same.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent discharged Elmer
Goettel and Richard Ray on May 28, 1971, in violation of
Section 8(a)(1) of the Act. Although the complaint
indicates that the Robinson Township project may have
already been completed, it is not clear whether that is the
case or whether Goettel and Ray would have been
transferred to another project upon its completion.15
Therefore I shall recommend that the affirmative action
ordered be in the alternative.
In the event that Respondent's work pursuant to its
contracts with the Robinson Township Sanitary Authority
has not been completed, or in the event that Goettel and
Ray would have been transferred upon its completion, I
shall recommend that Respondent be ordered to offer
them immediate and full reinstatement to their formerjobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and to make them whole for any loss
made for shoring
1 i Interboro Contractors, Inc, 157 NLRB 1295, 1293, enfd 388 F 2d 495
(C A 2). C & 1 Air Conditioning Inc, et al, 193 NLRB No 132
14 Koerber was a foreman who had worked for Respondent for 4 years,
usually under Superintendent Zivkovlc
15 See findings above as to Koerber's statements to Goettel on May 26,
1971, about company men
AL MONZO CONSTRUCTION CO., INC. 1219
of earnings they may have suffered by payment to them of
the amounts they normally would have earned as wages
from the date of their discharges to the date of an offer of
reinstatement, less net earnings, to which shall be added
interest at the rate of 6 percent per annum, in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
In the event the project has been completed and Goettel
and Ray would have been terminated on its completion, I
shall recommend that the foregoing be modified to the
following extent. The Respondent need not offer reinstate-
ment to Elmer Goettel and Richard Ray but shall instead
send a letter to each stating that, notwithstanding their
discharges, they will be considered eligible for employment
in the future at any of Respondent's projects if they should
choose to apply for employment at any of them.16 The
period for which they must be made whole shall end on the
date that they normally would have been laid off from the
Robinson Township project. In addition, whether or not
Goettel and Ray would have been terminated by the time
of completion of the project, Respondent shall send
Goettel and Ray copies of the notices which would
otherwise have been posted if the project had not been
concluded and Respondent shall mail copies of the notice
to all of its employees who were employed on the
Robinson Township project on May 28, 1971.
CONCLUSIONS OF LAW
1. Al Monzo Construction Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Laborers' International Union of North America,
Construction and General Laborers and Material Han-
dlers' Local Union No. 1058, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Elmer Goettel and Richard Ray on
May 28, 1971, because of their protected concerted
activities, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended: 17
ORDER
Respondent, Al Monzo Construction Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their rights to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
16 Respondent is not required to offer Goettel and Ray employment at
other projects but only to consider them for employment on a nondiscrimi-
natory basis Interboro Contractors, Inc, 157 NLRB 1295, 1303, enfd. 385
F 2d 495 (C A 2) See also State Wide Painting & Decorating Co, Inc, 174
NLRB 5
17 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall , as provided in
or protection by discrimination against them in regard to
hire, tenure of employment, or any term or condition of
their employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage in, or to refrain from engaging in, any or all
of the activities specified in Section 7 of the Act, except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor- Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In the event Respondent's operations pursuant to
contracts with the Robinson Tonwship Sanitary Authority
are still in progress or in the event that Elmer Goettel and
Richard Ray would have been transferred to another
project upon its completion, offer them immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, and
make them whole for any loss of pay that they may have
suffered by reason of the discrimination against them in
the manner and to the extent set forth in the section of the
Decision entitled "The Remedy."
(b) In the event Respondent's operations pursuant to its
contracts with the Robinson Tonwship Sanitary Authority
have been completed and Elmer Goettel and Richard Ray
would have been terminated by the time of its completion,
make them whole for any loss of pay they may have
suffered by reason of their discharges and assure them of
their future eligibility for employment by Respondent in
the manner and to the extent set forth in the section of the
Decision above entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Notify the above-named individuals if presently
serving in the Armed Forces of the United States, of the
right to full reinstatement , upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(e) In the event that Respondent's operations pursuant to
its contracts with the Robinson Township Sanitary
Authority are still in progress, post at said project copies of
the attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
Section 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
is In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) In the event Respondent's operations pursuant to its
contracts with the Robinson Township Sanitary Authority
have been completed, mail copies of the aforesaid notice to
the employees specified in the section of the Decision
entitled "The Remedy."
(g) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.19
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 6, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
motherwise WE WILL assure Elmer Goettel and,
Richard Ray that they are eligible for future employ-
ment by us.
WE WILL make Elmer Goettel and Richard Ray
whole for any pay they may have lost because of the
discrimination against them with interest.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to engage in, or to refrain from engaging
in, any or all of the activities specified in Section 7 of
the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act
of 1959.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against our employees because they have engaged
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL offer Elmer Goettel and Richard Ray
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without loss of seniority or other
rights or privileges, if we have not completed opera-
tions pursuant to our contracts with the Robinson
Township Sanitary Authority or if they would have
been transferred to another job upon its completion-
Dated By
AL MONZO CONSTRUCTION
Co., INC.
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named individuals
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building and 1000 Liberty Ave., Pittsburgh,
Pennsylvania, Telephone 412-664-2944.