Firelands Sewer and Water Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1975

221 N.L.R.B. 476 (N.L.R.B. 1975)

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firelands Sewer and Water Construction Co., Inc. and
John A. McDonald . Case 3-CA-6022
November 14, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 30, 1975, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions 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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
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 Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Firelands Sewer and Water Construction Co.,
Inc., Mansfield, Ohio, its officers, successors, agents,
and assigns shall take the action set forth in said
recommended Order, as so modified:
1. In paragraph 1(b), substitute the word "other"
for the words "like or related."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence , the National Labor Relations Board
221 NLRB No. 102
has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing -
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights. More specifically,
WE WILL NOT refuse to hire an employee
because he has engaged in picketing at one of our
jobs.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights as guaranteed by Section 7 of the
Act.
WE WILL pay Mr. John McDonald his lost
earnings, plus 6-percent interest per annum.
FIRELANDS SEWER AND
WATER CONSTRUCTION
CO., INC.
DECISION
STATEMENT OF THE CASE
MARION C. LADwIG, Administrative Law Judge: This
case was heard at Rochester, New York, on June 27, 1975.1
The charge was filed by an individual, John McDonald, on
March 28, and the complaint was issued on May 9. The
case arose when the Respondent Company's area superin-
tendent, Mason Wheeler, saw McDonald signing in as a
new employee, inquired if he was "the guy who walked the
picket line" 2 years earlier, and ordered him out of the
office. The primary issue is whether the Company
unlawfully refused to hire McDonald for having engaged
in protected concerted activities in violation of Section
8(a)(1) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the Company, I make the following:
I All dates are in 1975 unless otherwise stated.
FIRELANDS SEWER & WATER CONSTRUCTION CO.
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, is engaged as a
general contractor in the sewer and water construction
industry, and annually performs services valued in excess
of $50,000 in States other than Ohio. The Company admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
the Union, Local 832, International Union of Operating
Engineers , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Rejection by Superintendent Wheeler
On February 19, master mechanic James Prinzing and
mechanic Jack Adams were building a bore pit on the
Lakeshore interceptor project in Irondequoit., They were
behind in their repairs on the equipment on the job and, as
Adams (a company witness) credibly testified, Superinten-
dent Wheeler wanted "to get another welder, so we'd be
three [Priming; Adams, and the welder] to work on the
equipment." Wheeler told Priming he would like to get
back Le Frois (a union welder who had his own machine).
Prinzing telephoned the Union, but Le Frois was not
available and the Union referred McDonald (an experi-
enced welder with his own welding machine mounted on
his truck) to the job.
On Thursday morning, February 20, welder McDonald
reported for work. Master mechanic, Priming, who had
seen McDonald doing this type of work before , assigned
him to build the bore pit. Priming and mechanic Adams
helped McDonald load the necessary oxygen, acetylene,
and welding rods on his truck, and Priming then instructed
McDonald to report to the office to sign in. While
McDonald was in the office doing so, Superintendent
Wheeler entered and asked about welder Le Frois. Upon
being told that Le Frois was working on another job,
Wheeler asked McDonald "if I was the guy who walked
the picket line against him a couple of years ago,
downtown on Exchange Street." McDonald said, "Yes, sir,
I was." Then, as McDonald credibly testified, Wheeler
said, "Get your papers and get out." (According to
Wheeler, "I asked him if he was the same [person] that
walked the picket line in downtown Rochester, Exchange
Street . He answered that he had , so I asked him if he'd get
his papers and whatever he had there and hit the road."
Wheeler did not detail why, "I just asked if he was on the
picket line. As far as I was concerned he had two strikes
against him at that time.")
After McDonald left the job, mechanic Adams did the
welding on the bore pit, and he and master mechanic
Priming did the welding on equipment being repaired.
This is welding work which McDonald would have
performed at least through Friday, February 28, when the
Union called its members from the job.
477
B. The Company's Defenses
1. Purported picket line misconduct
The Company's first defense is that "The Charging Party
was not hired due to the fact that in 1973, he had
undertaken acts of misconduct while a non-employee
picket at the Employer's Exchange Street Project in
Rochester."
In support of this defense, the Company produced
testimony by mechanic Adams and, operator Charles
Finley that, when McDonald engaged in the
(informational) picketing in early 1973 (for a, total of 6
days), he at first would slowly walk the picket line in front
of the Company's approaching front-end loader (which
was crossing the street with materials ), causing the driver
of the loader to slow down. However, as Adams credibly
testified, McDonald "settled down after awhile," and after
that Adams "didn't slowdown; I just kept going" and "He
got out of the road," speeding up to get out of the way. In
addition, McDonald would take out a pad or notebook
and at least gave the appearance that he was taking down
the license plate numbers of trucks which came to the job.
Both Adams and Finley credibly testified that he did not
interfere with the trucks. (I find that this picket line activity
was not unprotected conduct.)
Another company witness, Foreman Kessell Farrell,
credibly testified (although McDonald did not recall) that
on two occasions when Farrell left the Exchange Street job
in a company pickup truck , going in the direction of the
Company's Penfield job, McDonald followed him; the first
time until he went to a shopping center , and the second
time until he went to the company warehouse . McDonald
never followed him to his home . (I find that this also was
not unprotected conduct.)
Superintendent Wheeler, who claimed he had a good-
faith .belief that McDonald engaged in misconduct while
picketing, testified that McDonald would park closest to
the driveway "where we'd have a hell of a time getting a
vehicle through" (although he admittedly never asked
McDonald to move his car nor called to police to have the
car moved, and McDonald,credibly denied blocking the
driveway), and that McDonald would wrinkle up his coffee
cup and throw it on the ground or sidewalk (as employees
also would do). He also testified about receiving reports
from Foreman Farrell about being followed. (I find that
neither were these unprotected activities.)
Apparently realizing the weakness of the Company's
defense, Superintendent Wheeler gave other testimony
which was not corroborated . He claimed that he could
hear, from a distance of about 150 feet , profanities which
McDonald was shouting to the dump truck, drivers.
(McDonald 'credibly denied that he' used any profanities,
although "Once in a while we would" shout "scab" to the
drivers.) In addition, Wheeler claimed that on about 20
occasions "my people came to me, complaining of this
fellow, wanting to know of me personally, or our company,
could we do anything about this person harassing them, his
actions on the picket line, because they, felt if he could do it
out there , what is going to happen when they go home,
what is going to happen to their families if he does follow
them home." (He admitted that he had not called the
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
police about any picketing difficulties, or filed any charge
of illegal picketing.) In response to objections to such
testimony, the company counsel argued that whether or
not the (purported) complaints were true, "we contend Mr.
Wheeler . . . had a good faith belief that the misconduct
that Mr. McDonald undertook was unprotected; this is the
very heart of our case." I accepted the testimony as
evidence. -However, Wheeler did not impress me as being a
candid witness. (From his demeanor while testifying on the
stand, it appeared that he was willing to fabricate
testimony to support the Company's defense.) I discredit
his testimony about the approximately 20 complaints
about McDonald's picket line conduct, and also his claim
that he still feared difficulty which McDonald might'cause
if he had been hired on February 20.
Accordingly, I - find-that The Company did not have a
good-faith belief- that McDonald engaged in unprotected
activity at the time of the 1973 picketing.
2. Other defense
The ,Company also contends that McDonald -did not
have the requisite skill necessary to perform the work that
Wheeler had in mind for him on February 20, 1975, when
he reported for -work. To the contrary, the evidence shows
that master mechanic Prinzing, who was familiar with
McDonald's qualifications, had 'already assigned him to
begin working on the bore pit that morning. Wheeler's only
reason for not hiring McDonald was his prior picketing. I
therefore reject this defense as a mere afterthought.
C. Concluding Findings
Upon considering all the evidence and circumstances, I
find that the Company refused to hire McDonald-after he
had already been assigned to work-in retaliation for his
prior picketing which was protected concerted activity, and
that the Company thereby violated Section 8(a)(1) of the
Act. (I find it unnecessary to rule on the further allegation
that the Company violated Section 8(a)(3) of the Act.) -
CONCLUSIONS OF LAW
By refusing to hire John McDonald on February 20
because he had previously engaged in protected concerted
activity, the Company engaged in an unfair labor practice
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I find it necessary to order the
Respondent to cease and desist therefrom and to take
2 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
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having unlawfully refused employment
to an applicant on a sewer construction job on which he
otherwise would have worked from February 20 through
February 28, 1975, I find it necessary to order the
Respondent to compensate him-for his lost earnings, plus
interest at 6 percent per, annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2
Respondent, Firelands Sewer and Water Construction
Co., Inc., Mansfield, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing employment or otherwise discriminating
against any applicant or employee for engaging in
protected concerted activity.
(b) In' any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. , Take the following affirmative action necessary to
effectuate'the policies of the Act:
(a) Make John McDonald whole for his lost earnings in
the manner set forth in 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, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its office in Mansfield, , Ohio, and at all
construction jobs where employees report to work, copies
of the attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director of
Region 3, after, being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not ' altered,
defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTIIER'-ORDERED that the complaint be dismissed
insofar as it alleges violations-of the Act not specifically
found.
3 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted' Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board " -