Paul Hardeman, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1965

150 N.L.R.B. 846 (N.L.R.B. 1965)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and related work, including stripping ,• opaquing , and platemaking to employees
who are represented by us, rather than to employees who are represented by
International Typographical Union or its Local No. 11.
INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS'
UNION OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
MEMPHIS NEWSPAPER PRINTING PRESSMEN'S
UNION, LOCAL No. 24,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
FRAZIER MOORE
This notice must remain posted for 60 consecutive days after 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, 746 Federal
Office Building, 167 North Main Street , Memphis, Tennessee, Telephone No. 534-
3161 , if they have any question concerning this notice or compliance with its
provisions.
Paul Hardeman , Inc.'and Wesley Warren , Paul Ozen , Steve Ozen.
Cases Nos. 23-CA-18312-1, 23-CA-183 -3, and 23-CA-1832-3. Jan-
uary 8, 1965
DECISION AND ORDER
On October 29, 1964, Trial Examiner C. W. Whittemore 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 Trial Examiner's
Decision. Thereafter, Respondent, filed exceptions to the Decision
and a supporting brief, and the General Counsel filed an answering
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 Mem-
bers 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
Decision, the exceptions, the briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts, as its Order, the Order recom-
1'50 NLRB No. 77.
PAUL HARDEMAN; INC. 847
inendecl1by'the Trial Examiner and orders that' Respondent, Paul
Hardeinan,, Ilic.,'its officers, agents, successors,, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.'
i The Board includes as part of its Order the "Armed Forces" provision now appearing
in the notice attached to the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT, 017 THE CASE
Upon charges filed by the above-named individuals on June 9, 1964, the General
Counsel of the National Labor Relations Board issued, on July 29, 1964, his consoli-
dated complaint including the,above-entitled cases.' The complaint alleges that the
Respondent Employer, has engaged in unfair, labor practices in violation of Section
8(a) (1) and (3) of the National Labor Relations Act, as amended. Pursuant to
notice, a hearing was held in 'Jasper, Texas, on September 22; 1964, before Trial
Examiner C. W. Whittemore. '
At the opening of the hearing counsel for the Respondent submitted a copy of his
answer to the complaint, the original of which, General Counsel said he understood,
had been received at the Regional Office the preceding day, a week after expiration of
an already extended filing date. General Counsel moved for summary judgment on
the, pleadings, pursuant to Sections 102.20 and 102.21 of the Board's Rules and Regu-
lations, Series 8, as amended. I held my ruling in abeyance, but permitted the answer
to be filed and the Respondent to present its case. The motion for summary judgment
is now denied. The answer, as filed, denies the commission of the alleged unfair labor
practices.
At the hearing General Counsel and the Respondent were represented and were
afforded full opportunity to present evidence pertinent to the issues, to argue orally,
and to file briefs. Briefs have been received from General Counsel and the
Respondent.
Upon the record thus made„and from his observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Paul Hardeman, Inc., is a Michigan corporation. At all times material herein it
has been engaged as general contractor in the construction of the Sam Rayburn Dam
and power plant, with its office at Jasper, Texas. This is the only facility of the
Respondent involved in this proceeding.
During the year preceding issuance of the 'complaint, the Respondent performed
services valued at more than $500,000. Services valued at more than $50,000 were
performed by it in States other than the State'of Texas.
During the same period it purchased goods and materials valued at more than
$50,000 which were transported directly to it from points outside the State of Texas.
The'complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers Local 853 is a labor organization representing
certain employees of the Respondent at its Jasper jobsite'.
' III .' THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The sole issue involved here is the alleged unlawful discharge on May 25 and 26,
1964, ,of three laborers, the charging,individuals listed in the title. General Counsel
i The same individuals, also on June 9, filed charges against Construction and General
Laborers Local 853, in Cases Nos 23-CB-549-1, 549-2, and 549-3 The consolidated
complaint, as issued by General Counsel, included these cases. At the opening of the hear-
ing, however, General CounseLwithdrew all allegations of the complaint against the said
labor, organization, leaving,only,the cases noted above.
i ' 775-692-65=vol. 150-55 ,
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that they were dismissed because they were engaging in concerted protected
activities for their mutual aid or protection . The Respondent denies this allegation.
Its answer , however, advances no specific affirmative reason for the admitted discharge
of the individuals.
B. The discharges
1. Relevant facts
There is no real dispute as to the events immediately preceding the discharges, all of
which were effected upon the decision and order , according to his own testimony, of
Jack Mounts , labor superintendent.
During the lunch period on May 25 Warren , the two Ozen brothers, and a number
of other employees met for discussion as to what could be done about retroactive pay
which they had expected to receive in their most recent paycheck . In short explana-
tion , it appears that a preceding contract between Local 853 and the Respondent had
expired on March 31 , 1964, and that a new one was not signed until May 11. Testi-
mony indicated that the laborers had expected that , upon signing of the contract, a pay
increase would be retroactive to the date of the previous contract's expiration, a not
uncommon arrangement . The local, however , had signed a contract which provided
for no retroactive pay beyond the actual date of the new contract 's execution.
Warren , a union steward , led the discussion among his fellow laborers , the Ozen
brothers standing nearby. As the end of the lunch period approached, Superintendent
Mounts came up to them , accompanied by Sam Caruso, a business representative of
the local . According to the latter's testimony , as a witness for the Company , "Warren
and the Ozen brothers approached me ... on this retroactive pay, [claiming ] that it was
unjust, I was letting them down and [they ] didn 't see why they couldn 't get it."
Mounts then interrupted the argument , and told the three "you heard what the man
said , there is no retroactive pay. Either you go to work or go up the hill and get your
money."
All three, as well as others , returned to their work as usual. Late that afternoon
the Ozen brothers were fired , and Warren was discharged the next day . The Ozens
were given discharge slips by General Foreman Sexton, the slips merely stating thereon
that the reason for termination was "unsatisfactory ." It is undisputed that Sexton
told them that he hated to "do it," but had to take orders from "above." He told
Paul, especially , that he "hated" his task since he had assured the employee that he
would have a job with him as long- as he was general foreman.
Warren was given a similar slip by his foreman , Lloyd Hanks . It is undisputed
that Hanks told Warren that he was "sorry ," remarking that they had worked together
ever since he had been made foreman , but he had to follow orders. It is also undis-
puted that Warren , who was on "premium" pay, had often been consulted by his
foreman regarding work to be performed.
2. Conclusions
The Respondent offered no substantial evidence tending to rebut the testimony of
the three laborers as to the events leading up to the discharges.
The first witness called by the Respondent was Union Representative Caruso.
Coming from the purported representative of the employees , Caruso's testimony is
most curious . In the first place, he stressed a claim that the three argued with him
"about 5 minutes past time of work ," thus voluntarily setting up a situation favorable
to a contention by Mounts that the employees were fired for not returning to their
jobs on time. In the second place , Caruso candidly admitted , after stating that it was
his "job to keep my members on the job if possible," that he made no effort to find
out from Mounts what the basis might be for the "unsatisfactory " discharge slips.
When Mounts testified , however, the indicated direction of the defense was altered.
The superintendent flatly denied that the meeting of May 25 had anything to do with
his decision to order the discharges . Instead , he testified vaguely and in general terms
that for varying periods he had been dissatisfied with the work performance of each
of the three men.
I can place no reliance upon any part of Mounts' testimony . Even if his plainly
manifested discomfiture as a witness be discounted , he offered no explanation for the
mathematical improbability that of the hundreds of laborers on the job , he should
suddenly select for an "unsatisfactory " discharge the same three individuals identified
by Caruso as having "argued" impolitely with him about their backpay.
The remarkable coincidence , plus Caruso 's callous treatment of his own "members,"
suggest that by withdrawing the complaint against the Union the General Counsel
restricted the presentation of evidence to that pertinent only to Mounts ' action. In
any event , I am convinced and find that Warren and the two Ozen brothers were
PAUL HARDEMAN, INC. 849
discharged because of their vocal efforts to obtain , or to learn why they had not
obtained , certain retroactive pay they believed due them . Such activities were con-
certed and protected ,. and within the scope of union activities.
It is therefore found that the discharges violated both Section 8 (a) (1) and (3) of
the Act: interference , restraint , and coercion in the exercise of rights guaranteed by
Section 7 of the Act, as well as discrimination in employment to discourage union
activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent 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 obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices I will recom-
mend that it cease and desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act.
It will be recommended that the Respondent offer employees Wesley Warren and
Paul and Steve Ozen immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered by reason of
the unlawful discrimination against them, by payment to each of them of a sum of
money equal to that which he would normally have earned absent the discrimination,
and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, and with interest on the backpay due in accordance with Board policy set out in
Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the serious nature of the Respondent 's unfair labor practices it will be
recommended that it cease and desist from in any manner infringing upon the rights
of employees guaranteed in Section 7 of the Act.
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. Construction and General Laborers Local 853 is a labor organization within the
meaning of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of employees , to discourage
activity on behalf of the above-named labor organization, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3 )
of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting con=
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, I recommend that Paul Hardeman , Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, and activity on behalf of , Construction and Gen-
eral Laborers Local 853, or in any other labor organization, by discharging, laying off,
refusing to reinstate , or in any other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer Wesley Warren and Paul and Steve Ozen immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to their
seniority and other rights and privileges, and make them whole for any loss of earnings
suffered by them as a result of the discrimination against them, in the manner set forth
above in the section 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 records necessary to determine the
amounts of backpay due.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its jobsite at Jasper, Texas, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be 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 by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of the service of this Trial Examiner's Decision, what steps it has taken to
comply herewith.3
2In 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."
3 In the event that this Recommended Order 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 Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, as amended, we notify you that:
WE WILL NOT unlawfully discourage you from being members of or active on
behalf of Construction and General Laborers Local 853, or any other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to Wesley Warren and Paul and Steve Ozen, and
make them whole for any loss of pay caused by our discrimination against them.
PAUL HARDEMAN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 application 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.
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, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 4271, if they have any question concerning this notice or compli-
ance with its provisions.
Mose Franck Heating and Air Conditioning, Inc. and United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
Local Union No. 522 , AFL-CIO. Case No. 9-CA-3086. Janu-
ary 8, 1965
DECISION AND ORDER
On October 23, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 73.