Batchelor Electric Co.

National Labor Relations Board - Board DecisionsMar 5, 1981

254 N.L.R.B. 1145 (N.L.R.B. 1981)

d/b/a 9- and Board Eecision finding^,^ conc:lusions adopt Pursuznt 10(c) c'rders Batche- d/b/3 and Law - ' fini continuancc Janui~ry 18. w:eks Mweover, t Shisler's Administra.ive unles, tat Srandord Wan Pduers, Inc.. NI.RB (1950), 188 F.2d elamined lind ~ ~ A T ~ O N A L discrimi- nat? WILL BATCHE- CO., PROPERIE- TORSHIP Administrative 8(a)(l) 1; $50,000 11. Facls Respon- 1145 BATCHELOR ELECTRIC CO. Robert Batchelor Batchelor Electric Co., a sole properietorship and Danny Loux. Case CA-13946 March 5, 1981 DECISION A N D ORDER On August 28, 1980, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions a supporting brief. The has considered the record and the at- tached in light of the exceptions and brief and has decided to affirm the rulings,' and of the Administrative Law Judge and to his recommended Order. ORDER to Section of the National Labor Relation:; Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby that the Respondent, Robert lor Batchelor Electric Co., a sole proprietor- ship, Cincinnati, 'Ohio, its officers, agents, succes- sors, assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Judge. We no merit to Respondent's exception to the Administrative Law Judge's failure to allow Respondent a continuance in order to pre- sent the tertimony of the bookkeeper, Alma Shisler. The request for a referred to by Respondent was filed with the Region on o r about 16, 1980, and, in the absence of good cause shown, was denied by the Regional Director for Region 9 on January 1980, almost 2 before the opening of the hearing; further, Respondent did not ask the Administrative Law Judge for a continuance during the hearing. Respondent has failed to show any reason why it could not ave taken steps to insure appearance at the hearing. Therefore. we deny its request to remand the case and reopen the hear- ing. Respordent has excepted to certain credibility findings made by the Law Judge. It is the Board's established policy not to overrule ar administrative law judge's resolutions with respect to credi- bility the clear preponderance of all of the relevant evidence con- vinces us t the resolutions are incorrect. Dry 91 544 enfd. 362 (3d Cir. 1951). We have carefully the record and no basis for reversing his findings. APPENDIX LABOR RELATIONS BOARD An Agency of the United States Government I WILL NOT discharge or otherwise against employees in regard to their hire to tenure of employment o r any term or condi- tion of employment because they engage in prctected concerted activities. 254 NL RB No. 156 I NOT in any like or related manner in- terfere with, restrain, o r coerce my employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. I WILL offer Danny Loux immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equiv- alent job, without prejudice to his seniority or other rights or privileges previously enjoyed, and I WILL make him whole, with interest, for any loss of earnings he may have suffered as a result of his discharge. ROBERT BATCHELOR D/B/A LOR ELECTRIC A SOLE DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Law Judge: The charge in this case was filed on June 5, 1979, by Danny Loux, an individual. On July 18, 1979, the complaint issued alleging that Respondent violated Section of the National Labor Relations Act, as amended, by dis- charging Loux because he engaged in a protected con- certed work stoppage. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Cincinnati, Ohio, on February 1980. Briefs have been received from the General Counsel and Respondent. Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is engaged in the building and construc- tion industry as an electrical contractor. During a repre- sentative 1-year period Respondent received in excess of for services performed for business enterprises within the State of Ohio, including the city of Cincinnati, which in turn annually purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Ohio. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. THE ALLEGED UNFAIR LABOR PRACTICES A. The 1. Introduction Danny Loux was employed by Respondent as an elec- trician from 1977 until his discharge May 22, 1979. The General Counsel contends that Loux was discharged be- cause he engaged in a work stoppage to protest dr:nt's dis- ctarged awarded pr'3jects thr: law. hours The ga \ e 7:30 a.m Res3ondent othe'rs their d~ Ftom I979 other ~ r o j e c t hi: Deerlield periods2 Du-ing ac- curac.1 3aid dropp-d ' Re\xlndent's res~dential Iif~ur rn $8 $2.000 c~ty.funied $4,000, cet w~rgc rales to I.our so Batchelor Irtm lhur vforked cred- ~ted 1.0u.1 QS his 1979,4 Batche- them 1 work- week.5 employ- portion back- after wirh that d ~ d 40 In 19 rate residential 28 sufficient prevatling In Loux's tmlimony underpa~d computa- tlon. 1146 DECISIONS O F NATIONAL LABOR RELATIONS HOARD failure to pay him as required by agreement and prevailing wage laws. Respondent contends that he Loux because Loux was consistently tardy and fa led to follow orders. Respondent bids on both residential and Government ccntracts. During Loux's employment Respondent was contracts for several projects for the city of Cincinnati. Wage rates for electricians working on these were established by agreement with the city at prevailing rate of $14.64 per hour, as required by Wage rates on Respondent's residential work were set by Respondent for each individual electrician and were not subject to prevailing wage laws. Respondent paid Loux $4.50 per hour when working on residential projects.' Electricians' weekly pay varied depending on the projects they were assigned to and the number of they worked. electricians kept records of their hours and the prcjects on which they worked. Every week they wrote thir information on cards or slips of paper which they to Respondent who in turn gave them to his book- keeper, a certified public accountant, who prepared the payroll. On occasions when Respondent did not appear at jobsites, employees telephoned their hours in to him or to the accountant. Respondent's normal working hours were from to 4 p.m., but Respondent had no fixed policies re- garding tardiness o r absenteeism. Some employees called if they were going to be late or absent, but merely reflected their tardiness or absence on timesheets, and Respondent relied on all employees to so. 2. The termination of Danny Loux January on, Loux worked as an electrician at the District No. 2 Police Station, a city project on which the prevailing wage rate was required. In January and possibly February he also worked on two or three prevailing wage projects and on some residential jobs. In March Loux was assigned permanently as the elect-ician in charge at the police station project after the architect told Respondent Batchelor that he was required to have an electrician present on the job at all tirnes. From then until Loux was discharged he spent all working time at the police station project, except for a few occasions when he was sent by Batchelor to a project, also a prevailing wage job, to work for short 1978 Loux questioned Batchelor about the of the computation of his weekly pay. Batchelor told him that his wages were correct and that employees were at different rates for different jobs. Loux then the subject, but in November 1978 he received three checks from Respondent for back wages as a result wage rates for work ranged from $3.50 per per hour. On federally funded contracts less than or contracts less than contractors were also free to without regard prevailing wage laws. testified. did not testify as to Loux's assignments March on, nor was there any other testimony to contradict Loux he only on prevailing wage jobs after February. I have to work assignments. of an investigation by the U.S. Department of Labor, Employment Standards Administration." After Loux started to work exclusively on prevailing wage work, he received paychecks on March 31 and April 7, reflecting pay for 3 days' work at the prevailing rate and for 2 days' work at the residential rate even though he was entitled to be paid at the pre- vailing rate for all work performed. After receiving the first of these checks Loux attempted unsuccessfully to reach Batchelor to complain. When he received the second check, it was accompanied by a note in lor's handwriting in which he stated that Loux expected too much money and that another employee, Bill Hug, was willing to work for 3 days at the prevailing wage rate and 2 days at his regular rate. In the note Batchelor also asserted that Loux cared only for himself, that he should stop complaining to others because it got back to him, and that he could not continue to lose money on jobs that Loux was working on. After receiving the note, Loux finally spoke with Batchelor by telephone and told him that if he did not straighten the situation out imme- diately Loux was going to quit. After a further conversa- tion in which Loux again said that he would not work for the lower rate, Batchelor took him to the bookkeeper and instructed her to make out two additional checks for the periods in question. Loux took but later real- ized that the additional pay he received brought him up to the prevailing rate for only day of each of the pay periods. Thereafter, Respondent continued to pay Loux at the prevailing rate for approximately 4 days' work and at the residential rate for the remainder of each Loux complained about his pay to other At that time employees John Croley and Joe Hubsch also received back wages. Croley repaid Respondent a substantial of his pay talking other employees about the possibility of being laid off if he did not return the money. All dates which appear hereafter occurred in 1979 unless otherwise stated. Loux initially testified he was paid for 4 days at the prevailing rate and I day at the residential rate. Later he conceded that he not always work hours a week and that there was some variation his weekly hours. The only pay records received in evidence show that for the week ending May Loux was paid for 34 hours at the prevailing and 5 hours at the rate. For the week ending May 12 he was paid for hours at the prevailing rate and 8 hours at the residential rate. For the week ending May 5 Loux was paid for 35 hours at the pre- vailing rate and 5 hours at the residential rate. While it thus appears that the number of hours for which Loux was paid at each rate varied from week to week. I do not find the discrepancies between Loux's initial and later testimony to warrant discrediting him or to reject the basic thrust of his testimony that each week he was paid at the residential rate for a portion of the work he had performed on prevailing rate jobs. As noted above. Batchelor did not contradict Loux's -testimony that he performed only rate work after March I . While Batchelor tes- tified that he promptly corrected all complaints about mistakes pay computations and that, with the exception of complaint about his pay in early April, all Loux's other complaints were about job assign- ments and not about pay. I do not credit Batchelor. His testimony in gen- eral was vague, inconsisrent, and punctuated by frequent disclaimers of memory or knowledge. His concession that the note accompanying Loux's April 7 paycheck contained false statements and his totally in- credible explanation for that note further serve to undermtne his credibil- ity. Moreover. the timing of that note, its contents, and the fact that Loux's pay was adjusted corroborate Loux's that Batchelor had Loux for work performed on prevailing rate jobs and that the underpayment was not the result of inadvertent errors in CO. 1147 ees spolte jobsite. cornplaints Saturiay, told others6 Mon'iay, on knew jobsite, tel~phone calls.7 :! coworker: day.8 Findings pr:ctice continuetl to his -- ' S J from receivi~~g hi!, ' testified ad(led ievice. LOUX ! o rn Hering c~)rnpletely Hering's LOUX'S any to p r o t e c t i ~ n . ~ Act.l0 21, during the-evi- 21 Cu.rhion Co., Inc., SeljCycle & Inc.. (1978): Conrtruction Inc., Krrspy Corp.. Unrted Santa'r Bakery, I058 G.V.R. . Inc.. ' O Purnrto Rico F d Produccc Corp.. rt ob. F.2d (1st BATCHELOR ELECTRIC and with Batchelor about i t whenever Batche- lor visited the Batchelor never responded direct- ly to his but made excuses and left. On May 19, Loux telephoned Batchelor at home and him that, if Batchelor were not going to pay him for 5 days' work at the prevailing wage rate, he would stay home 1 day the following week and work only the 4 days that Batchelor was willing to pay him at the prevailing wage. Loux said that he would not report to the job on the following Monday. Batchelor said that they needed him at the police station job 5 days a week, and Loux replied that Batchelor would have to come up with the msney for him like he did for On May 21, Loux went to the District No. 2 Police Station project early in the morning and asked a carpenter the site if there was any work to be done that day by others that would require Batchelor's pres- ence. When the carpenter replied that there was none that he of, Loux told the carpenter that, if Batche- lor came to the he should tell Batchelor that Loux had gone home. Loux then left. Batchelor tried to call Loux at his home that day and left messages on Loux's answering machine, but Loux did not return his When Loux reported for work the next day at the Dis- trict No. Police Station at his regular time, two of his told him that he had been fired. Later Batche- lor arrivetl at the project and Loux asked him what was going on. Batchelor told him that he did not need him any more and that he was fired for not coming to work the previc us B. Concluding The first question to be answered is whether Loux's refusal to work on May 21 was protected concerted ac- tivity. Although Respondent contends that Loux's ab- sence from work that day was simple absenteeism, the evidence supports the conclusion that Loux withheld his services that day because of dissatisfaction with Respon- dent's of paying him at the residential rate for a portion of the time spent by him on prevailing rate work. Thus, I tave credited Loux that from March on he per- formed cnly prevailing rate work and that Respondent to pay him at the residential rate for some of the hour! he worked. Further, I have found that he com- plained Batchelor about it and that on the Saturday before discharge he told Batchelor that if he were not going to be paid for 5 days at the prevailing rate he might as well work only 4 days a week and would not Loux testified. Batchelor initially testified he never received a call Loux on Saturday, May 19, but later testified he could not remem- ber any such phone call. In light of Batchelor's professed lack of memory as well as the general deficiencies in his testimony, I have not credited initial denial and have credited Loux. Loux that he did not remember receiving any messages that day but that his small child may have tampered with his telephone answering testified, and Batchelor also testified that he spoke to Loux and told h that he was no longer needed. Employee Bill testi- fied to a different sequence of events on that day. which was internally inconsistent and in conflict with the testimony of John Croley. Loux, and Batchelor. I have not credited version of dis- charge. work on the following Monday. When Batchelor said that he was needed, Loux told Batchelor that he would have to pay him the prevailing wage. Batchelor gave no indication that he would change his pay practices. 1 find that Loux's reason for not working on May 21 was to protest Batchelor's refusal to pay him at the prevailing rate for all the work he performed and that Batchelor was aware of that reason. While Loux's work stoppage was not joined by any other employee Loux had discussed his complaint about Respondent's pay practices with other employees, and Batchelor's April note to Loux shows both awareness and disapproval of those discussions. Moreover, apart from direct involvement of Respondent's employees in Loux's protests, the objective sought by Loux was gain Respondent's compliance with contractual and legal requirements that Respondent pay prevailing wages on Government projects. That objective was a matter of common interest and concern to all employees. In the absence of evidence that other employees did not share in the concerns expressed by Loux, his protest is proper- ly to be viewed as concerted activity for the purpose of mutual aid or Loux's work stoppage in fur- therance of his protest of Respondent's pay policies was thus protected concerted activity within the meaning of Section 7 of the The remaining question to be answered is whether Loux was discharged for his protected concerted activity o r for other reasons. While Respondent contends that Loux was discharged for consistent tardiness and failure to follow orders, the evidence is to the contrary. Apart from Loux's refusal to report for work on May there is no evidence that he failed to follow orders his employment by Respondent. As for tardiness, dence does not establish that Loux's record of tardiness differed substantially from that of any other employee. Respondent had no established policies with respect to tardiness and had not disciplined Loux or any other em- ployee for tardiness before Loux's discharge. Indeed it appears that until Loux was discharged Respondent left it to the employees to police their own hours and to ac- count for any tardiness by reporting only the time they actually worked as a basis for payment. I find that the reasons advanced by Respondent for Loux's discharge, other than his refusal to work on May 21, are without foundation and were not the true reasons for his dis- charge. In any event, even assuming that Loux's prior tardi- ness was excessive and that he previously may have failed to follow orders, Batchelor's own testimony estab- lishes that it was Loux's absence on May 21 which trig- gered the discharge. He testified that if Loux had re- turned his calls on May 21 and explained his absence he would not have discharged him. This testimony makes it clear that if Loux had not been absent on May he Alleluia 221 NLRB 999 (1975): Marine Distributor Co.. 237 NLRB 75 Bmn Co.. 241 NLRB 276 (1979): Kreme Doughnut 245 NLRB 1053 (1975); Investment Corporation d / b / a 249 NLRB (1980). See also 201 NLRB 147 (1973). See 242 NLRB 899 (1979). enforcement denied in part 619 153 Cir. 1980). DECISIONS Batche- 8(a)(l) Act. Having ordered 14s dis- Respon- rein- stalement exi!,ts, his amount (discharge statement, F. W. Wmlworth (1950), Steer (1977)." ncstice office, jobsites reconmend cur- rentl:~ Order.I2 Upon withill 2(2), (6), " Ste, lsis & Co., 1 2 Se,e K Inc.. supm B(a)(l) 2(6) l q c ) I. backpay ' Sec. 102.46 Sec. adoptedby '' 1148 OF NATIONAL LABOR RELATIONS BOARD would not have been discharged. When this is consid- ered with the finding above that Batchelor knew the reason for Loux's absence and the evidence of lor's resentment against Loux's complaints about his pay found in the note accompanying Loux's April 7 pay- check, the conclusion is compelled that but for Loux's absence to protest Respondent's pay practices on May 21 he would not have been discharged. As his absence was part and parcel of his protected concerted activities, it follows that Loux's discharge was caused by his protect- ed concerted activities and violated Section of the 111. THE REMEDY found that Respondent has engaged in unfair labor practices, I shall recommend that Respondent be to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent unlawfully chr rged Danny Loux, I shall recommend that der t be ordered to offer him immediate and full to his former job or, if that job no longer to a substantially equivalent job, without prejudice to seniority o r other rights and privileges. I shall fur- ther recommend that Respondent be ordered to make him whole for any loss of earnings he may have suffered as result of his discharge by payment to him of the he normally would have earned from the date of his until the date of Respondent's offer of rein- less net earnings, to which shall be added in- terest, to be computed in the manner prescribed in Company, 90 NLRB 289 and Florida Corporation, 231 NLRB 651 As Respondent's employees report directly to jobsites, it would be of little value to require Respondent to post a at his and, as Respondent's jobs are of varying and often short duration, posting of notices at would also accomplish little. Accordingly, I shall that Respondent provide signed copies of a notice and names and addresses of employees so that no- tices can be mailed to all those who were employed by Respondent at the time of Loux's discharge or are employed at the time of compliance with the the basis of the above findings of fact and the entirt: record in this case, I make the following: 1. Respondent is an employer engaged in commerce Act. the meaning of Section and (7) of the generally, G. R., Plumbing at 154. Heating 138 NLRB 716 (1962). 2. By discharging Danny Loux because of his protect- ed concerted activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections and and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section of the Act, I hereby issue the following recommended: The Respondent, Robert Batchelor d/b/a Batchelor Electric Co., a sole proprietorship, Cincinnati, Ohio, his agents, successors, and assigns, shall: Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire or tenure of employ- ment or any term or condition of employment because they engage in concerted activities protected by Section 7 of the National Labor Relations Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Danny Loux 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 other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discharge in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of due under the terms of this Order. (c) Furnish to the Regional Director for Region 9 the names and most recent addresses in its possession of all employees employed by Respondent on May 21, 1979, and all those employed currently and sign a sufficient number of copies of the attached notice marked "Appen- dix"" for mailing by the Regional Director to each of these employees. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event no exceptions are tiled as provided by of the Rules and Regulations of the National Labor Relations Baord, the findings, conclusions, and recommended Order herein shall, as provided in 102.48 of the Rules and Regulations, be the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words is the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Coury of Appeals Enforcing an Order of the National Labor Relations Board."