Hod Carriers' & Construction Laborers', Local 300

National Labor Relations Board - Board DecisionsFeb 11, 1964

145 N.L.R.B. 1674 (N.L.R.B. 1964)

1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request , bargain with Local 305, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive representa- tive of all employees in the bargaining unit described below in respect to rates of pay, wages, hours of employment , or other conditions of employment, and, if an understanding is reached , embody it in a signed agreement . The bargaining unit is: All meat department employees at the retail food stores at Bonnie Enter- prises, Inc., located in the Commonwealth of Virginia, excluding all other employees, guards, and supervisors , as defined in the Act. All of our employees are free to become, remain , or refrain from becoming or remaining members of the aforesaid Union, or any other labor organization. BONNIE ENTERPRISES, INC., Employer. Dated------------------- By------------------------------------------- (Representative (Title) 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. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore , Maryland, Telephone No. 752-8469, Extension 2100, if they have any questions concerning this notice or compliance with its provisions. Hod Carriers ' and Construction Laborers ' Union , Local No. 300, AFL-CIO [Desert Pipeline Construction Co.] and Dennis R. Murray. Case No. 01-CB-2096. February 11, 1964 DECISION AND ORDER On October 11, 1963, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer tain affirmative action, as set forth in the attached Decision. There- after, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. 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 De- cision, the exceptions and brief, and the entire record in this case, and 145 NLRB No. 162. HOD CARRIERS' & CONSTRUCTION LABORERS', LOCAL 300 1675 hereby adopts the findings, conclusions, and recommendations I of the Trial Examiner, as modified herein. ORDER The Board adopts the Recommended Order of the Trial Examiner with the modifications noted below? 1 We have adopted the Trial Examiner 's finding that Respondent violated Section B(b) (2) and (1 ) (A) by causing Desert to discharge employees Dalton and Murray for discrimina- tory reasons. However, as Respondent had the right to insist that two of the five "key men" employed by Desert, among whom were Dalton and Murray, be discharged under the terms of the understanding with that company, it is possible that in complying with the lawful demand, Desert would have voluntarily terminated one or both of these employees under its normal nondiscriminatory reduction-in-force standards. This possibility was not litigated at the hearing Accordingly, the Trial Examiner's remedy recommendation is here modified so that this possibility will be considered in determining the amounts of backpay, if any, due to Dalton and Murray, and their right to reinstatement 2The Recommended Order is hereby amended by substituting for the first paragraph therein the following: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Hod Carriers' and Construction Laborers' Union, Local No. 300, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall The Appendix attached to the Trial Examiner's Decision is hereby amended by adding the following Immediately below the signature line at the bottom of the notice: NOTE.-We will notify the above-named employees if presently serving In the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on April 9, 1963, and amended on May 27, 1963, by Dennis R. Murray, an individual, herein called Murray, the General Counsel of the National Labor Relations Board, herein called the Board, for the Regional Director for the Twenty-first Region, issued a complaint and notice of hearing, dated May 29, 1963, alleging that Hod Carriers' and Construction Laborers' Union, Local No. 300, AFL-CIO, herein called Respondent, violated Section 8(b) (1) (A) and (2) of the National Labor Relations Act, herein called the Act. Pursuant to due notice, a hearing in this matter was held before Trial Examiner E. Don Wilson in Los Angeles, California, on July 29, 1963. The parties fully participated Briefs have been received from General Counsel and Respondent and have been considered. Immediately before the close of the hearing, counsel for Respondent moved to dismiss the complaint. Decision on this motion was reserved and is disposed of by the findings, conclusions, and recommendations below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Desert Pipeline Construction Co., herein called Desert, is a California corporation engaged principally in the installation of underground pipelines . Desert is a member of Southern California Chapter of Associated General Contractors of America, herein called AGC, which is composed of various employers , including Desert, en- gaged in the building and construction industry and which exists for, and engages in, collective bargaining for, and negotiates collective-bargaining agreements on behalf of, its members , including Desert, with various labor organizations , including South- ern California District Council of Laborers , herein called Council, and its various locals, including Respondent . Members of AGC which participate in multiemployer 1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining , including Desert , having their principal offices and places of business in the State of California, in the aggregate , annually ship goods and perform services outside the State of California valued in excess of $50,000. Said members of AGC annually receive goods and services valued in excess of $50 ,000 directly from outside the State of California and from other California enterprises which annually re- ceive goods and services valued in excess of $5,000 directly from outside the State of California. Desert, standing alone, does not meet any of the Board 's jurisdictional standards. Contrary to the contentions of Respondent, I find Desert , through its membership in and representation by AGC, has been an employer engaged in commerce within the meaning of the Act and that the Board has jurisdiction of the subject matter of this proceeding. If. THE LABOR ORGANIZATION INVOLVED Hod Carriers ' and Construction Laborers' Union , Local No. 300 , AFL-CIO, is a labor organization within the meaning of the Act. III. UNFAIR LABOR PRACTICES I A. The issues Through its agent, Joseph York Murdock, did Respondent violate Section 8(b)(1)(A) and (2) of the Act, by causing and attempting to cause Desert to dis- charge Murray and Philip J. Dalton in violation of Section 8(a)(3) of the Act9 B. Background Respondent, through affiliates, at material times, has been party to a contract and a memorandum of understanding,2 with Desert, through AGC, which provide in part that Desert may bring into the area jurisdiction of Respondent only three so- called "key men" to do laborers' work. As of April 5, 1963,3 Desert had five laborers, as well as a welder and a truckdriver, working as a crew under the super- vision of Harry Eugene Ricbardson.4 The laborers were Rodriguez, Lopez, Gon- zales, Dalton, and Murray. None was a member of Respondent. Each was a member of Local 507, a sister local of Respondent. As of April 5, they had been working for Desert for about 2 weeks. It is undisputed that as of that time, Desert thus had two laborers who were working in violation of its memorandum of under- standing with Respondent. C. April 5 About 8 a.m. on April 5, Murdock, in the performance of his duties as assistant business manager of Respondent, appeared at Desert's jobsite in Los Angeles and inquired of Richardson how many laborers were on the job. Having been told there were five, and having had them pointed out, Murdock spoke to each one and checked each individual's dues card or book or receipt. While checking, he had some con- versation with one or more of them. Having checked, as noted above, Murdock spoke to Richardson. He argued with Richardson as to whether there had been a sixth laborer on the job who had "run around the corner." 5 Further, Murdock told Richardson that the contract per- mitted only three "key men." I Findings of fact in this section are based upon the credited testimony of Richardson, Murray, Dalton, and Floyd Smith. In material matters their testimony was mutually consistent and I was favorably impressed by their respective demeanors. I have observed aspects of Dalton's testimony involving apparent self-contradiction, e g , whether Murdock specifically mentioned Dalton's name in speaking to Richardson ; however, I find that such was due to confusion or temporary lapse of memory and not to an intention to fabri- cate testimony. I have not credited testimony of Murdock where it has been substantially contradicted by one of the witnesses hereinabove named. On occasion, Murdock was evasive in not giving responsive answers to relatively simple and direct questions He contradicted himself on material matters and impressed me as attempting to give as answers to some questions what appeared to him to be helpful to Respondent's case at the time he was answering, without regard to truth 2 The legality of the contract and memorandum has not been placed in issue. I do not pass upon the legality. i Hereinafter, all dates refer to 1963, unless otherwise indicated. 4 ,The record establishes that Richardson was a supervisor within the meaning of the Act. 5 There is no credible evidence that Desert had such sixth laborer. HOD CARRIERS' & CONSTRUCTION LABORERS', LOCAL 300 1677 Immediately after the argument with Richardson, Murdock, by word or gesture or both, caused the five laborers to leave their work stations. Following questions by Gonzales and Murray as to why the job was shut down, Murray and Murdock had a heated argument for 2 or 3 minutes, in which threats of violence were uttered and fighting with fists was discussed. Dalton, who had been talking to a householder, about 60 feet away from the scene of the near fracas, approached Murdock and Murray and persuaded Murray not to argue, suggesting that Murray would get them all in trouble.6 Murray left Murdock and joined Dalton. Shortly thereafter, Richardson and Murdock, separately, engaged in a series of radiophone and telephone calls with representatives of AGC and Desert. In one of these conversations, Murdock told Desert's president and general manager, Floyd Smith, that Richardson, Murray, and Dalton were uncooperative. He told Smith that he had had trouble with Dalton on a prior job. Murdock also told Smith that Murray and Dalton had been disrespectful or abusive or uncooperative with him and "these two men had to go." 7 Murdock returned to the job and spoke to the welder, Rudy Chavez, described as "next in command" to Richardson .8 Murdock told Chavez, "You can have three men according to the agreement, and you can put on three men according to the agreement, except Murray and Dalton." A short while later, the job still being shut down pursuant to Murdock's directions to the laborers, Murdock in the presence of the crew told Richardson he could have but three laborers from Local 507. Richardson said he would like to keep the three who had the most seniority and named Lopez, Gonzales, and Dalton. Murdock said he would not permit the job to continue "under those conditions." When Richardson inquired as to the conditions under which the job could be resumed, Murdock replied, "As long as Dalton and Murray are not working." Dalton, during this conversation, told Murdock he had never had trouble with Murdock on a job in Venice, California, some years before and he denied that he had called Murdock a name.9 Murdock made no reply. Richardson selected Lopez, Gonzales, and Rodriguez to continue working as laborers and resumed work without Dalton and Murray. The job had been shut down for about an hour. D. Concluding findings I find General Counsel has established by a preponderance of the probative evidence that Respondent, through Murdock, attempted to cause, and caused Desert to discharge Murray and Dalton in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b) (1) (A) and (2) of the Act. But for Murdock's demand that Desert cut its laborers from five to three, there is no evidence that Desert would have discharged anyone of the five on April 5. I do not consider a request by Murdock to cut the number of laborers from five to three, in accordance with the memorandum of understanding, to be violative of the Act. However, the entire record establishes that Murdock did more than demand compliance with the memorandum of understanding. Murdock, under threat of keeping the job shut down, successfully demanded that two specific individuals, Dalton and Murray, be selected by Desert for discharge. That absent such demand by Murdock, Desert, itself, might have selected Murray or Dalton or both for dis- charge as a means of complying with the memorandum of understanding does not in any manner alter the finding that Dalton and Murray were selected for discharge pursuant to Murdock's demand that both of them be removed from the crew, the alternative being a continuation of the job shutdown caused by Murdock. O That Murdock and Murray engaged in a most spirited dispute does not seem open to question As Murdock put it, they "had a nose-to-nose talk there for a bit." Murdock also described it as a "short, heated argument " I consider it unnecessary to determine whether in the course of this argument, Murray addressed a vile epithet to Murdock directed par- ticularly to the latter's race (Negro). Specifically, I do not credit Murdock's testimony that he did not become angry at Murray. I shall find infra that Murdock's anger at Murray and Dalton occasioned Murdock's demand that Murray and Dalton be cut from the crew of five laborers. Smith did not discharge or direct the discharge of Murray or Dalton. He did advise Richardson to see what he could work out with Murdock. 8 There is insufficient evidence to conclude that Chavez was a supervisor within the meaning of the Act. Nonetheless, Murdock's statement to Chavez is relevant to Murdock's state of mind particularly with reference to his determination that Murray and Dalton be eliminated from Desert's complement of five laborers. 9 Murdock had so claimed. - 1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murdock's reason for demanding the discharge of Murray and Dalton is clear. He was angry at Murray, having had a "nose-to-nose argument" with him. He was angry with Dalton because Dalton appeared to have alined himself with Murray, be- cause Murdock believed that he had had trouble with Dalton on a job in Venice, California, some years earlier, and because he believed Dalton had called him a name. As Murdock told Smith a short while before he demanded the discharge of Dalton and Murray, he considered that these employees had been disrespectful or uncooperative or abusive to him. Discharges made to mollify an agent of a labor organization, encourage member- ship in that organization and stand "as a warning to employees that the favor and good will of responsible union officials is to be nurtured and sustained." Such discharges of Murray and Dalton violated Section 8(a)(3) of the Act.10 I find Dalton and Murray were discharged as a means of mollifying Murdock. Respond- ent, through Murdock, attempted to cause and caused these discharges in violation of Section 8(a)(3) and Respondent thereby violated Section 8(b)(2) of the Act. By thus attempting to cause and causing Desert to discharge Dalton and Murray, Respondent has restrained and coerced employees of Desert in the exercise of rights guaranteed by Section 7 of the Act and has thereby violated Section 8(b)(1)(A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of Desert described in section I, 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has caused Desert to discriminate against Dennis R. Murray and Philip J. Dalton, it will be recommended that the Respondent make Murray and Dalton whole for any loss of earnings sustained by reason of the discrimination from April 5, 1963, to the date Respondent requests their reemploy- ment. Backpay shall be computed in accordance with the Board's formula stated in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. As the Respondent's unfair labor practices found herein go to the heart of the Act, it will be recommended that the Order contain a broad injunction against any form of restraint or coercion by the Respondent. Upon the basis of the above findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Desert Pipeline Construction Co. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hod Carriers' and Construction Laborers' Union, Local No. 300, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material, Joseph York Murdock was an agent of the Respondent within the meaning of Section 2(13) and Section 8(b) of the Act. 4. By attempting to cause, and causing Desert Pipeline Construction Co. to dis- charge Dennis R. Murray and Philip J. Dalton for discriminatory reasons, in viola- tion of Section 8(a) (3) of the Act, the Respondent has violated Section 8(b) (1) (A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent Hod Carriers' and Construction Laborers' Union, Local No. 300, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: IOLocal 1070 of the United Brotherhood of Carpenters and Joiners of America (B W Horn Company ), 137 NLRB 439, 442. HOD CARRIERS' & CONSTRUCTION LABORERS', LOCAL 300 1679 1. Cease and desist from: (a) Causing or attempting to cause Desert Pipeline Construction Co. to dis- criminate against employees in violation of Section 8(a)(3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act except in a manner permitted by Section 8(a)(3) oftheAct 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole Dennis R. Murray and Philip J. Dalton for any loss of pay they may have suffered by reason of their discharge from Desert Pipeline Construction Co , as provided in the section herein entitled "The Remedy." (b) Notify Dennis R. Murray and Philip J. Dalton and Desert Pipeline Construc- tion Co. in writing that it has no objection to the employment of Murray and Dalton in any capacity satisfactory to Desert Pipeline Construction Co. and that it requests Desert Pipeline Construction Co. to return Murray and Dalton to the employment from which they were discharged. (c) Post at its offices in conspicuous places including all places where notices to members are customarily posted, copies of the attached notice marked "Appendix." li Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Promptly mail to said Regional Director signed copies of the Appendix for posting, Desert Pipeline Construction Co. willing, at the jobsites of Desert Pipeline Construction Co. in Los Angeles, California. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.i2 "In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order 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." '-'If this Recommended Order is adopted by the Board, this piovision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify you that: WE WILL NOT cause or attempt to cause Desert Pipeline Construction Co to discriminate against Dennis R. Murray or Philip J. Dalton, or any other em- ployee in violation of Section 8(a)(3) of the National Labor Relations Act. WE WILL withdraw our objection to the continued employment of Dennis R. Murray and Philip J. Dalton by Desert Pipeline Construction Co., and request that they be returned to the employment from which each was discharged by said Company and we will furnish both Murray and Dalton with copies of this withdrawal and request. WE WILL make Dennis R. Murray and Philip J. Dalton whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT in any other manner restrain or coerce employees in the exer- cise of rights guaranteed them in Section 7 of the Act, except in conformity with Section 8(a) (3) of the Act. HOD CARRIERS' AND CONSTRUCTION LABORERS' UNION, LOCAL No. 300, AFL-CIO, Labor Organization. Dateo------------------- By------------------------------------------- (Representative) (Title) 1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Employees may communicate with the Board 's Regional Office, 849 South Broad- way, Los Angeles, California, Telephone No. 688-5204, if they have any question concerning this notice or compliance with its provisions. Jas. H . Matthews Co., Industrial Marking Products Division and Local 605 of the International Union of Electrical , Radio & Machine Workers, AFL-CIO. Case No. 6-CA-2824. Febru- ary 11, 1964 DECISION AND ORDER On October 24, 1963, Trial Examiner Owsley Vose issued his De- cision 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 Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision, and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the De- cision, the exceptions and the brief, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER1 The Board adopts as its Order the Recommended Order of the Trial Examiner. i The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Jas. H. Matthews Co., Industrial Marking Products Division, its officers, agents , successors , and assigns , shall: TRIAL EXAMINER'S DECISION Statement of the Case Upon a charge filed on August 9, 1963 , by the Charging Party, the General Coun- sel of the National Labor Relations Board , by the Regional Director for the Sixth Region , issued a complaint on August 28, 1963 , alleging that the Respondent had refused to bargain collectively with Local 605 of the International Union of Electri- cal, Radio & Machine Workers, AFL-CIO, herein called WE, the certified majority representative of Respondent's employees in an appropriate bargaining unit. The 145 NLRB No. 160.