Denver Acoustics, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1976

225 N.L.R.B. 1026 (N.L.R.B. 1976)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denver Acoustics, Inc. and Gary Klessig. Case 27-
CA-4572
FINDINGS OF FACT
1. JURISDICTION
August 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 3, 1976, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge: This
case was heard before me in Denver, Colorado, on Febru-
ary 5, 1976. The charge was filed by Gary Klessig, an indi-
vidual, and served on Respondent on June 30, 1975. The
complaint, which issued on August 1, 1975, alleges the Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act. Posthearing briefs were filed by the
General Counsel and by Respondent on February 26,
1976.
The basic issue herein is whether Respondent discharged
Klessig because he asserted his rights under the collective-
bargaining agreement.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the fol-
lowing:
Respondent, a Colorado corporation with its principal
office and place of business in Denver, Colorado, is en-
gaged in subcontracting for the sale and installation of
acoustical ceilings and drywall partition. Respondent, in
the course and conduct of its business operations, annually
purchases and receives goods and materials valued in ex-
cess of $50,000 directly from suppliers located outside the
State of Colorado.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material has been, an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II LABOR ORGANIZATION
The complaint alleges , Respondent admits, and I find
that Local 79, International Brotherhood of Painters and
Allied Trades, AFL-CIO ( herein called the Union), is, and
at all times material has been , a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Klessig was first hired by Respondent in October 1973
to work on a job in Vail, Colorado. At the time Klessig
resided in Leadville, Colorado; however, it is undisputed
that he was hired in Vail and there is no evidence on the
record that Respondent was aware of Klessig's residence at
the time of his hire.
In October or November 1974, Klessig was told by
Union Business Agent Bob Bundy that under the collec-
tive-bargaining agreement between Respondent and the
Union he was entitled to travel pay I for driving the more
than 25 miles between Leadville and Vail. According to
Klessig, he then asked Steve Sidwell, Respondent's. Job su-
perintendent, for such pay retroactive and repeated such
inquiry on the average of twice a week until he was laid off
on January 14, 1975, for lack of work. Sidwell told him he
would receive the travel pay, but it would take some time
to go through the records to determine the amount of ret-
roactive pay to which Klessig was entitled.2 Nevertheless,
Klessig never received this retroactive pay nor did he re-
ceive such pay on a current basis. He neither filed a griev-
ance nor otherwise complained to the Union.'
At the time Klessig was laid off, he was told that it was
a temporary layoff, and he would be recalled when taping
commenced. Thereafter, he checked several times as to
availability of work on the Vail job. On May 12, 1975,
when he checked, he was rehired. According to Klessig, he
Although Klessig referred to subsistence pay it is apparent from the
record that what was at issue was travel pay rather than subsistence pay
2 Sidwell did not testify He is no longer in Respondent's employ
3 Hannagan denies that Respondent ever agreed to give Klessig travel
pay According to him, Respondent took the position that place of hire, not
residence, determines entitlement to travel pay Since Klessig was hired in
Vail, he was not entitled to travel pay, and Hannagan instructed Sidwell to
so inform him
225 NLRB No. 154
DENVER ACOUSTICS, INC. 1027
asked Ed Hollowell, Respondent's taping crew supervisor,
if he needed a drywall finisher. Hollowell said yes and in-
quired if Klessig was union. Klessig said yes. Hollowell
asked where he lived. Klessig replied Leadville, and Hollo-
well told him to report for work the next morning.
Klessig started work at 8 a.m. on May 13, 1975, taping a
unit of drywall. About 9:15 a.m., he was discharged by
Randy Skiles, Respondent's job superintendent. In this re-
gard, Klessig testified as follows:
A. Randy Skiles came up to me, their job superin-
tendent, and said sorry, Gary, I have to let you go, and
I asked him why, and he said that it was because of
my $2,000.00, approximately, subsistence of driving
back and forth to work that I went to the Union
about, and he said at that time-let's see, that Dave
down in Denver said that I would have to be terminat-
ed because of this subsistence that I went to the Union
about, and he could no longer use me on the job be-
cause of that issue.
Q. To the best of your recollection, what else, if
anything, did you say, or did Mr. Skiles say?
A. Mr. Skiles, to me, talked briefly and thought
that as long as it was in the Union contract, I probably
should be-get my subsistence that I had coming, but
thought it was very doubtful that I would get that sub-
sistence, and-
A. At this time Mr. Skiles and I were walking-he
said that he would write me out a check, and so we
went outside to where he had his van parked . . . and
he wrote me out a check, and then I went home after
that, or shortly after.
Skiles denies telling Klessig that he thought he was enti-
tled to travel pay or that he mentioned any particular sum.
According to Skiles, when he saw Klessig on the job that
morning, he told Klessig that he could not work there, that
they had a problem during Klessig's previous employment
with him requesting travel pay after thejob was completed,
and he did not want that to happen again. Klessig said that
was all right because he had dust been granted custody of
his son and wanted to spend some time with him.
Skiles testified that in mid-February 1975, before he re-
ported to the Vail jobsite as superintendent, he and David
R. Hannagan, Respondent's general manager, had a con-
versation regarding the job and various things to watch
and control. One of the problems mentioned by Hannagan
was that there had been a problem with the Union,4 and
Mr. Klessig requesting travel pay and that therefore Skiles
should try to hire local people so the problem would not
arise again Hannagan testified that he told Skiles not to
rehire Klessig because they were now aware that he resided
G
There is no evidence or contention that the Union was involved in
Klessig's request for travel pay According to David R Hannagan,
Respondent's general manager, the only time the Union was involved in a
request for travel pay was when Respondent failed to pay travel pay to
another employee
in Leadville and could be expected to request travel pay
based on this residence.
About a week after Klessig's termination, Hannagan and
Skiles agreed that they would rehire Klessig if he gave them
a local address. Klessig admits that about a week after his
termination Skiles telephoned him and told him he would
be rehired if he would change his residence to Vail. Klessig
said he did not wish to change his residence.
General Counsel contends that Respondent terminated
Klessig in violation of Section 8(a)(1) and (3) of the Act
because he sought travel pay under the provisions of the
collective-bargaining agreement.' Respondent contends, in
essence, that Klessig was discharged not because he in-
voked what he thought was his contractual right to travel
pay, but, rather, because his residence gave him an argu-
able claim to travel pay, and Respondent did not wish to
incur any liability for travel pay. To this end, Respondent
restricted itself to hiring local people.
I find Respondent's argument persuasive. Although it is
well settled that an effort by an employee to implement a
collective-bargaining agreement is an extension of the con-
certed activity giving rise to that agreement and is thus
concerted activity, protected under Section 7 of the Act,6 I
find that the General Counsel has failed to establish that
Klessig was terminated in reprisal for his union or other
protected concerted activity or with any intent to discour-
age employee attempts to enforce the collective-bargaining
agreement. Rather, he was terminated because Respondent
did not wish to incur liability for travel pay-a legitimate
business motivation. The legitimate nature of Respondent's
motivation is amply demonstrated by its willingness to hire
Klessig if he became a local resident and by Hannagan's
instructions to Skiles to hire only local residents so as to
avoid incurring liability for travel pay. Accordingly, I find
that Klessig's termination was not violative of Section
8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER7
It is ordered that the complaint herein be, and the same
hereby is, dismissed in its entirety.
5 The collective-bargaining agreement is not in the record, however, Re-
spondent does not dispute Klessig's testimony that he sought travel pay in
accordance with the terms of a collective-bargaining agreement between
Respondent and the Union In view of my conclusions herein, this question
is not critical
6 Cray-Burke Company, 208 NLRB 708 (1974), H C Smith Construction
Co, 174 NLRB 1173 (1969), E E E Co, Inc, 171 NLRB 982 (1968),
Interboro Contractors, Inc, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (C A
2, 1967), B & M Excavating, Inc, 155 NLRB 1152 (1965), enfd per curiam
368 F 2d 624 (C A 9, 1966), Merlyn and Clarence Bunney, Partners, d/b/a
Bunney Bros Construction Company, 139 NLRB 1516 (1962)
r In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
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