Daniels Construction Co. of Virginia

National Labor Relations Board - Board DecisionsSep 28, 1962

138 N.L.R.B. 1154 (N.L.R.B. 1962)

1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. At all times mentioned herein , Office Employees International Union, Local 10, AFL-CIO, has been , and now is , the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By failing and refusing on, and at all times since , May 2, 1961, to bargain collectively with Office Employees International Union , Local 10, AFL-CIO, as the exclusive representative of the employees in the aforesaid unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. By dominating and interfering with administration and contributing financial and other support to Inland Boatmen 's Union and its Allied Marine, Section , Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication. ] Daniels Construction Company of Virginia and Local Union 1018, Brotherhood of Painters, Decorators and Paperhangers of America. Case No. 5-CA-202f. September 28, 1962 DECISION AND ORDER On March 19, 1962, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' THE REMEDY We find, contrary to the Trial Examiner, that the backpay obliga- tions of the Respondent with respect to the discriminatees shall include 1 Member Rodgers is not convinced that the record evidence herein is sufficient to estab. lish the alleged violation. Accordingly , he would dismiss the complaint . Nor, for the reasons set forth in his dissent in lass Plumbing & Heating Go , 138 NLRB 716, would Member Rodgers grant interest on backpay. 138 NLRB No. X135. DANIELS CONSTRUCTION COMPANY OF VIRGINIA 1155 the payment of interest at the rate of 6 percent . Such interest shall be computed in the manner set forth in Isis Plumbing c6 Heating Co., 138 NLRB 716. ORDER The Board hereby adopts the Recommended Order of the Trial Examiner as its Order, with the following modifications : 1. In paragraph 2(a), after the word, "section," the words, "herein entitled `The Remedy"' are deleted and the words, "of the Intermedi- ate Report entitled `The Remedy,' as modified by the Decision and Order" are substituted therefor. 2. In the notice "Appendix," immediately below the signature add the following note : NorT.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 3. Also in the notice called "Appendix," substitute the words "This notice must remain posted for 60 consecutive days from the date of posting, . . ." For the words "60 days from the date hereof." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed by Local Union 1018 , Brotherhood of Painters, Dec- orators and Paperhangers of America , on October 5, 1961, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on December 21, 1961 , alleging that Daniels Construction Company of Virginia had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) and Section 2 ( 6) and (7) of the National Labor Relations Act as amended , 61 Stat. 136, 73 Stat . 519, herein called the Act. With respect to the unfair labor practices the complaint alleged in substance that Respondent discharged George Henshaw and B . A. Richardson on or about September 22, 1961 , and has at all times since said date failed and refused to reinstate said employees to their former or substantially equivalent positions because they engaged in union or concerted activities with other employees of Respondent for the purpose of collective bargaining or other mutual aid or protection, thus interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, and by such acts and conduct discouraged membership in a labor organization. The Respondent 's answer duly filed admitted certain allegations of the complaint but denied the commission of any unfair labor practices . The answer admitted that Henshaw and Richardson were discharged on or about September 22, 1961 , that they have not been reinstated , but averred that the said discharges were for good and sufficient cause. Pursuant to notice a hearing was held at Richmond , Virginia , on February 13, 1962 , before the Trial Examiner Sidney Lindner. All parties were represented at the hearing and were afforded full opportunity to present evidence pertinent to the issues , to argue orally and to file briefs , proposed findings of fact, and conclu- sions of law. Memoranda of law were received from the General Counsel and counsel for the Respondent and have been carefully considered . Upon the record thus made and from my observation of the witnesses , I make the following: 662353-63-vol 138-74 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Daniels Construction Company of Virginia is a corporation duly licensed and authorized to do business in the Commonwealth of Virginia, having its principal office and place of business in Richmond, Virginia, where it is engaged in the com- mercial building and construction business. During a representative 12-month pe- riod, Respondent in the course and conduct of its business operations, received goods and materials valued in excess of $50,000 shipped directly to its place of business from points outside the Commonwealth of Virginia. During the same period Re- spondent performed services valued in excess of $50,000 at places outside the Com- monwealth of Virginia. The Respondent's answer admits and I find that the Re- spondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 1018, Brotherhood of Painters, Decorators and Paperhangers of America, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES During the course of its construction of the Allied Chemical plants in Hopewell, Virginia, where it was the general contractor, Respondent had in its employ, among others, a general foreman of painters, several foremen and some 20 to 28 journey- men painters. The record reveals that Respondent obtained its painters by calling the union business agent. It appears also that all of Respondent's painters as well as the foremen were members of the Union. Bennie Richardson, who had been a painter for 23 years, was employed by Re- spondent in the last week of March 1961. He worked regularly in the gang of Foreman Crews and had never previously been discharged from any job until his discharge by Respondent on September 22, 1961. George Henshaw, who had been a painter for 40 years, was hired by Respondent on March 31, 1961. General Foreman Archie Klonis appointed Henshaw foreman of a gang of 10 painters on July 14. In this capacity, Henshaw assigned work and gave instructions to the painters under his supervision and received foreman's pay. He continued as foreman until August 19 when the men in his gang were laid off and Henshaw was reassigned to work with the brush in Foreman Jordan's gang. He was discharged on September 22, 1961.1 Previous to this Henshaw had never been discharged from any job in his 40 years as a painter. Sometime during the week of September 4, according to Henshaw, there were grumblings among the painters, that their shop steward, George Krum, was not giving them sufficient washup time , beforelunch.2 On September 11 while the men were in the dressing room, changing into their work clothes before going to work, Richardson asked Foreman Crews if they could hold an election for another shop steward that morning. Foreman Crews remarked that Richardson was the "only one that wants one," whereupon Henshaw said he also wanted another shop steward. The regular safety meeting attended by the painters as well as Foremen Crews and Jordan and General Foreman Klonis was held at 7:30 a.m. Upon its com- pletion, Richardson reminded Foreman Crews that the men wanted to hold the election for another shop steward. Crews agreed but General Foreman Klonis asked the men to wait until 12 o'clock, the lunch hour. Crews persisted that they be permitted to "do it now." The election then proceeded with Foreman Crews presiding and all of the painters, Foreman Jordan, and General Foreman Klonis present. Richardson nominated Arthur Hensen for the position. Hensen's nomina- tion was seconded by Henshaw. Hensen was elected the new shop steward and Krum was defeated. Several weeks before the election, Hensen inquired if Klonis had discharged an apprentice named Wells. Hensen testified without contradiction that Klonis replied, 1 All events herein are in 1961. 2 Longcrier , Respondent ' s resident project manager , testified that an electric siren was Installed on the jobsite when the project started which blew In the morning to designate the start of work at 7:30 a in , at noon for the lunch hour, and either 10 or 15 minutes before 4 p in. to end the workday. In spite of such siren signals , it appears that the painters' shop steward at different times told the men 3 to 5 minutes before the lunch hour signal they could go down to wash up DANIELS CONSTRUCTION COMPANY OF VIRGINIA 1157 "You are god damn right I did." Hensen thereupon said to him, "You no good Greek son of a bitch." At about 2:15 p.m. on September 22, Klonis told Shop Steward Hensen to inform Richardson and Henshaw they were to be discharged that day because they could not or were not doing the work. At 3 p.m. Hensen so advised them. Richardson and Henshaw in the company of Hensen then attempted to gain further particulars from Respondent's General Superintendent Howard Crowe, who told them, "Whatever Archy says goes." After leaving Crowe, the men met Klonis and inquired why they were being discharged. Klonis said he did not want to talk about it and would rather not discuss it further. Henshaw, however, continued to press Klonis for a reason and was told he could not do the work. Richardson left the job without receiving a reason for his discharge. Conclusions It is the General Counsel's theory that Richardson and Henshaw were discharged by Klonis for having initiated and sponsored the election of Shop Steward Hensen, who previously had argued with Klonis and "told him off" with abusive language, who appeared to have been disliked by Klonis and whom Klonis objected to for the shop steward's job. In support of his theory the General Counsel adduced testimony from G. P. Johnson, business representative of the Union, which is undenied in the record and which I credit, that while on a routine visit to the jobsite about 3 or 4 days after Hensen's election, Klonis said "What in the hell they want to elect Hensen for as a steward? Krum was doing all right." At another point in their conversa- tion, Klonis said "Why did you elect that bastard for a steward." I have also found hereinabove that prior to the election of Hensen there were grumblings among the painters regarding their then shop steward Krum. Any union member may express his dissatisfaction over the stewardship of elected union officers, and the statute protects such rights .3 Furthermore, it has been held by the Board and the courts that activities of employees aimed either at removing elected union officers, or at compelling a change in their methods of running the Union, are protected concerted activities, discharge for which is violative of the Act. See Rugcrofters of Puerto Rico, Inc., 1-07 NLRB 256; Falstaff Brewing Corporation, 128 NLRB 294; Dant & Russell, Ltd., 92 NLRB 307, enfd., 207 F. 2d 165 (C.A. 9); N.L.R.B. v. Pacific Mills, 207 F. 2d 905 (C.A. 4). Thus the findings hereinabove made regarding the concerted activities of Richardson and Henshaw on September 11 which resulted in the election of Hensen as shop steward when coupled with the reasons given them for their discharge 2 weeks later establish a prima facie case against Respondent in violation of the Act. In this state of the record, and will full recognition that the burden of proof to establish such violations of the Act rests on the General Counsel throughout the entire proceeding, it was incumbent on Respondent to go forward with evidence in support of its denial that Richardson and Henshaw were not discharged for the dis- criminatory reasons urged by the General Counsel but rather that they were dis- charged for good and sufficient cause as pleaded in its answer. At the hearing Respondent adduced a great deal of conclusory testimony dealing with the work performances of Richardson and Henshaw in its attempt to prove that they could not or would not do the assigned work, that they were "sloppy," that they missed spots while painting, resulting in empty spaces known in the trade as "holi- days," that they encouraged other painters in their respective gangs to slow down so that the job would stretch out and that they were "knocking off" work early. Richardson and Henshaw denied that they engaged in shady practices while on the job and testified they were never cautioned regarding their work performance or refusal to do assigned work .4 No useful purpose would be served by a detailed recital of all of the evidence adduced by both parties on this issue. Suffice it to say that a synthesis of the testi- mony of Foreman Jordan called as a General Counsel witness and Foreman Crews called as a witness by Respondent reveals agreement in the following respect: that Richardson and Henshaw were average employees who did satisfactory work and S It should be noted in this regard that the selection of new shop stewards among painters on Respondent's project was not novel. The record reveals there were four shop stewards from February to September 1961. 4 About 2 or 3 days before his discharge, Richardson was assigned to paint some steel beams 18 to 20 feet off the ground. He told Foreman Crews that if he got up there he would leave some "holidays" on the underpart of the beam and another painter would have to catch them. He explained that a number of years ago he suffered an accident and could not bend over like other painters to get to the bottom of the beam He never- theless went up and worked the full day painting on the steel beams 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such work was the same as other painters on the job, certainly "no better-no worse." Even General Foreman Klonis who testified that he first observed that Henshaw's and Richardson's work became unsatisfactory about 2 or 3 months prior to their discharge,5 when questioned if their work was as good as the average painter drawing top painter's wages, admitted "at certain times, yes. Other times, they wouldn't." Klonis also admitted that in his rounds he observed other painters standing around and he saw "sloppy" work. A significant portion of Klonis testi- mony is that Henshaw and Richardson were not laid off in spite of several reductions in force in the painting crew during the period of time that Klonis claimed he first observed them performing unsatisfactorily. On the entire record and my observa- tion of the demeanor and appearance of the witnesses at the hearing, I find that Richardson and Henshaw were not discharged because they could not or would not do the work as Respondent contended. On the contrary I find they were discharged because they were the instigators and "agitators" 6 in the concerted activities which led to the election of Hensen as the new shop steward. Such discharges by Re- spondent were acts of interference, restraint, or coercion infringing rights under Section 7 of the Act and therefore constituted an unfair labor practice violative of Section 8(a)(1). In its brief, counsel for Respondent attaches significance to the fact that neither Henshaw, Richardson, nor Johnson, who intervened in their behalf, questioned the termination of the employment at the time but merely sought to have the termination changed to a layoff rather than a discharge and argues from this that it was not until the Respondent refused to accede to this demand was the motive of Klonis in discharging them impugned. I agree that such testimony is worthy of consideration. I have carefully weighed it, together with the testimony of Henshaw, a painter for 40 years, who had never previously been discharged from any job and who was extremely concerned with maintaining a record without the blemish of a discharge.? Although the remedy is unaffected thereby, I do not find that the discharges encouraged or discouraged membership in a labor organization so as to violate Section 8(a)(3) because they were unrelated to union membership. See Gullett Gin Co. v. N.L.R.B., 179 F. 2d 499 (C.A. 5), reversed and remanded on other grounds 340 U.S. 361; Mac Smith Garment Company, Inc., 107 NLRB 84, IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in the section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a) (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Respondent discharged Bennie Richardson and George Henshaw in violation of Section 8 (a)( I) of the Act, I will recommend that the Respondent offer each immediate and full reinstatement to his former position or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will be further recommended that the Respondent make the aforesaid employees whole for any loss of pay suffered by reason of the discrimi- nation against them. The General Counsel in a memorandum to the Trial Examiner urges that the Order herein should include interest on any backpay due the dis- criminatees at the rate of 6 percent per annum. The General Counsel's memorandum is meritorious and I am particularly persuaded by the argument that "where the payment of wages has been delayed, the employee is not made whole for the losses he has suffered by receiving simply the amount of those wages with no recom- pense for the delay." While I am fully aware that my duties as a Trial Examiner 6 As previously noted Renshaw was a foreman of a gang of 10 painters from July 14 through August 19 having been appointed to that job by Klonis. 6 This finding is based on the uncontradicted testimony of Hensen who stated that Monts in a conversation with him following his election as shop steward said , "Richardson wasn't nothing but a god damn agitator." In this connection Henshaw's testimony established that after he was discharged by Respondent, he relinquished the Reid-Hayden job because of back pains in order to avoid the possibility of discharge which would blemish his work record "for the second time." DANIELS CONSTRUCTION COMPANY OF VIRGINIA 1159 encompass the recommendation of an appropriate order to remedy the effects of the unfair labor practices , I am also mindful that it remains the Trial Examiner's duty to apply established Board precedent which the Board or the Supreme Court has not reversed 8 In the final analysis , it is the Board 's function to adapt its remedies so that the "victims of discrimination may be treated fairly " and may be made whole for losses suffered 9 and in "fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience " I° Since the Board in its Supplemental Decision and Recommendations in Si f ers Candy Com- pany, 92 NLRB 1220, 122211 did "not find it appropriate in the circumstances of this case to adopt the Trial Examiner 's recommendations (1) that the Respondent pay interest to the employees .. . I am constrained to reject the General Counsel's request regarding interest on backpay awards in spite of my personal views. Therefore loss of pay shall be based upon earnings which Richardson and Henshaw normally would have earned from the date of the discrimination against them to the date of their reinstatement , less net earnings computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Daniels Construction Company of Virginia is and has been at all times material to this proceeding an employer within the meaning of Section 2(2) of the Act. 2. Local Union 1018 , Brotherhood of Painters , Decorators , and Paperhangers of America, is, and has been, at all times material to this proceeding a labor organ- ization within the meaning of Section 2(5) of the Act. 3. By discharging Bennie Richardson and George Henshaw, Respondent has in- terfered with , restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8 ( a)(1) and Section 2(6) and (7) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 5. The Respondent has not discouraged membership in a labor organization in violation of Section 8(a) (3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record and pursuant to Section 10(c) of the Act, I recommend that Daniels Construction Company of Virginia, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate any of its employees because they en- gaged in concerted activities for their mutual aid or protection. (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form, join , or assist labor organi- zations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all of such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Bennie Richardson and George Henshaw immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay each may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to the amount determined in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and , upon request, make available to the Board or its agents all payroll records and other records necessary to analyze the amounts of backpay as set forth in "The Remedy" section of this Intermediate Report and Recommended Order. See The Prudential Insurance Company of America , 119 NLRB 768, 773 e See Phelps Dodge Corp v. N L R.B , 313 U S 177, 194 io See N L .R.B. v. Seven- Up Bottling Company , 344 U S 344, 346. This case involved reinstatement and backpay provisions in the Board 's Order in 75 NLRB 296 enfd 171 F . 2d 63 (C.A 10) 1160 DECISIONS OP NATIONAL LABOR RELATIONS BOARD (c) Post at its job project at Hopewell, Virginia, including all places at the project where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 12 Copies of the said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by Respondent's representatives, be posted by the Respondent immediately upon receipt thereof and 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifth Region in writing within 20 days from the date of the receipt of this Intermediate Report and Recommended Order what steps have been taken to comply therewith.13 12 In the event that these Recommendations be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" 13 In the event that these Recommendations be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discharge or refuse to reinstate any of our employees because they engage in concerted activities for their mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Bennie Richardson and George Henshaw immediate and full reinstatement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of their discharge on Sep- tember 22, 1961. DANIELS CONSTRUCTION COMPANY OF VIRGINIA, Employer. Dated------------------- By-------------------------------------------(Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 N. Calvert Street, Baltimore, Maryland, Telephone Number Plaza 2-8460, if they have any question concerning this notice or compliance with its provisions. Morris & Associates , Inc. and International Union of Electrical, Radio and Machine Workers, AFL -CIO. Case No. 11-CA-1839. September 28, 1962 DECISION AND ORDER On March 22, 1962, Trial Examiner George J. Bott issued his Inter- mediate Report in the above -entitled proceeding , finding that the 138 NLRB No. 126.