PPP Insulation Co.

National Labor Relations Board - Board Decisions

Mar 18, 1996

320 N.L.R.B. 953 (N.L.R.B. 1996)

953
320 NLRB No. 113
PPP INSULATION CO.
1 The General Counsel has moved to strike portions of the Re-
spondent’s exceptions and attachments to its brief. To the extent that
certain documentation appended to the Respondent’s brief is outside
the record developed at the hearing, we grant the General Counsel’s
motion, without prejudice to the Respondent’s ability to introduce
additional evidence pertaining to the remedy at the compliance stage
of the proceeding. In all other respects, the General Counsel’s mo-
tion is denied.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
PPP Insulation Company and International Associa-
tion of Heat & Frost Insulators & Asbestos
Workers, Local Union 22, AFL–CIO. Case16–
CA–17106
March 18, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On September 19, 1995, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions
and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, PPP Insulation Company,
Houston, Texas, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Nadine Littles, Esq. and Tamara J. Gant, Esq., for the Gen-
eral Counsel.
Isaac Price II, Owner, of Houston, Texas, for the Respond-
ent, PPP Insulation.
Patrick M. Flynn, Esq., of Houston, Texas, for the Charging
Party, Local 22.
BENCH DECISION
RICHARD J. LINTON, Administrative Law Judge. This is a
constructive discharge case. At close of the 1-day trial in
Houston, Texas, on August 22, 1995, I rendered a bench de-
cision in favor of the Government on all counts, thereby
finding violations of 29 U.S.C. § 158(a)(1) and (3). This cer-
tification of that bench decision, along with the order which
appears below, triggers the time period for filing an appeal
(exceptions) to the National Labor Relations Board. The au-
thority for issuing a bench decision, and the format I gen-
erally follow for this certification, appears in the first re-
ported bench decision, by Administrative Law Judge Robert
T. Wallace, in Sylvan Industrial Piping, 317 NLRB 772
(1995).
For the reasons stated by me on the record at the close
of the hearing, and by virtue of the ‘‘very strong’’ prima
facie case established by the General Counsel and the Charg-
ing Party, a case not credibly rebutted by PPP Insulation
(PPP), I found that PPP violated Section 8(a)(1) of the Act
by telling employees not to speak with representatives of the
Union (two counts, both admitted, with one by Owner Isaac
Price himself), and by coercively interrogating employees
(again, by owner Price). I found that PPP violated Section
8(a)(3) of the Act when Owner Price (angered that Gabino
Carrizal had filed a prevailing wage claim under Texas law)
told Carrizal, on October 7, 1994, that because Carrizal had
filed the claim, Price was reducing his weekly hours from 40
to 32 beginning the following week. Carrizal’s protest that
he could not live on the reduced hours was rebuffed, so
Carrizal quit. I order PPP Insulation to reinstate Gabino
Carrizal and to make him whole, with interest. I certify the
accuracy of the portion of the trial transcript (Tr. 221
through 223) containing my decision, and I attach a copy of
that portion as ‘‘Appendix A.’’
CONCLUSION OF LAW
Based on the record, I find that the Board has statutory
and discretionary jurisdiction; that Respondent PPP is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act; that PPP violated the Act in
the particulars and for the reasons stated in the bench deci-
sion; and that its violations have affected and, unless perma-
nently enjoined, will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from the date of discharge to the date of a
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Pursuant to my request at close of the hearing, the General
Counsel submitted a proposed order and proposed notice to
employees.
On these conclusions of law and on the entire record, I
issue the following recommended1
ORDER
The Respondent, PPP Insulation Company, Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing its employees not to speak with representa-
tives of a union.
(b) Coercively interrogating any employee about union
support or union activities.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a 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.’’
(c) Telling its employees that their work hours are being
reduced because of their activities in support of a union.
(d) Discharging or constructively discharging its employ-
ees because they seek the assistance of a union regarding
terms and conditions of employment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Gabino Carrizal immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the Gabino Carrizal in writing that this
has been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on 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 other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its office and jobsites in Houston, Texas copies
of the attached notice marked ‘‘Appendix B.’’2 If there are
no posting facilities at the jobsites, mail a copy of the at-
tached notice to each employee who has been on the payroll
of PPP Insulation Company at any time between August 15,
1994, to the present. Copies of the notice, on forms provided
by the Regional Director for Region 16, after being signed
by the Respondent’s authorized representative, shall be post-
ed by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
My decision will be for the Government on all issues al-
leged. The credibility I credit to General Counsel’s wit-
nesses. This shows—in addition to the allegations of 8(a)(1)
allegations as alleged in the complaint, a reduction to 32
hours, and that it was for the purpose of retaliation.
Mr. Price, according to credited testimony, actually came
and showed him the paper. He said, I am giving you 32
hours because you signed this paper. It is pretty clear that
the evidence really leaves no room for doubt on that point.
And evidence shows that overtime then started being worked
after that on other jobs.
And I find also that Mr. Gabino Carrizal would have been
retained at the 40 hours had it not been for that wage claim
that he filed. I find that this is a constructive discharge case,
that it was designed to penalize him for that wage claim that
he filed, and to make matters tough for him so that he would
leave because of the union matter. Prima facie case is very
clear and very strong, and the Company has not shown that
it would have reduced Mr. Carrizal’s hours absent his pre-
vailing wage complaint.
That is my decision. I will—when the record is pro-
duced—delivered in ten days, I will prepare a decision simi-
lar to that which appears in Sylvan Industrial Piping, 317
NLRB, No. 102 on May 31, 1995 [317 NLRB 772 (1995)].
And perhaps General Counsel can furnish a copy of that
decision, perhaps by mail. If you would just mail Mr. Price
one so that he will have a copy of what I was referring to,
I would appreciate it. It is—the only purpose is it just shows
a little format that I will be looking at for guidance.
MS. GANT: Very well, Your Honor.
JUDGE LINTON: And I would suggest that the General
Counsel forthwith submit a proposed order and notice par-
ticularly because of the—I want to make sure the wording
doesn’t interfere with the compliance matter—whatever is
going to take place on any compliance matter with respect
to journeymen, that sort of thing. I don’t want to get in-
volved on that. But you won’t need the transcript to send
that to me, that proposed order, so I need a proposed order
and notice right away because I will need—as soon as the
record comes in to get this order done up.
MS. GANT: Are we talking overnight or just regular mail
or—
JUDGE LINTON: No, not overnight. Within the next few
days. If you can get it out by the end of the week, though,
I would appreciate it.
MS. GANT: Very well.
JUDGE LINTON: And Mr. Price, you may appeal. That will
be dated from the date that my written decision issues. The
written decision will just incorporate the pages of the tran-
script where I have now described my decision on the record
here. And that will be—the procedure that you would follow
on that is set forth in the Board’s rules and regulations where
you appeal to the Board from my decision which I will issue
once I have received the record. and the record doesn’t come
in—the transcript doesn’t come to me for another—well, it
will probably be two weeks before I get it.
Are there any questions?
MS. GANT: No, Your Honor.
JUDGE LINTON: I appreciate the cooperation that the par-
ties have shown, and I say best of luck to everyone. It is not
too late, I suppose, for the parties to discuss a settlement.
So—at any rate, there being nothing further, the hearing is
closed. Off the record.
(Whereupon, at 3:25 p.m., the hearing was concluded.)
955PPP INSULATION CO.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell you not to speak with representatives
of a union.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT tell you that your work hours are being re-
duced because you, with the assistance of a union, file pre-
vailing wage claims or engage in other protected concerted
activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting, or of obtaining the assistance con-
cerning terms and conditions of employment, International
Association of Heat & Frost Insulators & Asbestos Workers
Local Union 22, or of any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Gabino Carrizal immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify Gabino Carrizal that we have removed
from our files any reference to the discharge or other dis-
crimination against him and that the discharge will not be
used against him in any way.
PPP INSULATION COMPANY