Progressive Building Methods, Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1982

262 N.L.R.B. 977 (N.L.R.B. 1982)

PROGRESSIVE BUILDING METHODS, INC.
Progressive Building Methods, Inc. and Laborers'
International Union of North America, Local
Union No. 894. Case 8-CA-15053
July 16, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On April 23, 1982, Administrative Law Judge
Burton S. Kolko issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 2 as
modified herein.3
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, as modi-
fied below, and hereby orders that the Respondent,
Progressive Building Methods, Inc., Akron, Ohio,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraph accordingly:
I In the absence of exceptions thereto, we do not pas on the Adminis-
trative Law Judge's failure to decide whether Respondent's June 2 and
18, 1981, statements to Gotto constituted violations of Sec. 8(aXI), as al-
leged in the complaint.
2 Member Jenkins would compute interest on the backpay ordered
herein in accordance with the formula set forth in his partial dissent in
Olympic Medical Corporation, 250 NLRB 146, 148 (1980).
a The Administrative Law Judge inadvertently failed to include an in-
junctive cease-and-desist provision in his recommended Order. We shall
modify that portion of his Decision to correct that omission. Also, in ac-
cordance with our recent decision in Sterling Sugars, Inc., 261 NLRB 472
(1982), we shall modify the Administrative Law Judge's Order by includ-
ing therein the affirmative requirement that Respondent expunge from its
records any reference to the unlawful discharge of Anthony Gotto. Re-
spondent also shall be required to provide written notice of such expunc-
tion to Gotto and to inform him that Respondent's unlawful conduct will
not be used as a basis for further personnel actions against him.
262 NLRB No. 133
"(b) Expunge from its files any reference to the
discharge of Anthony Gotto on June 19, 1981, and
notify him in writing that this has been done and
that evidence of this unlawful discharge will not be
used as a basis for future personnel actions against
him."
3. Substitute the attached notice for that of the
Administrative Law Judge.
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 an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOTr discharge employees because
of their union or other protected concerted ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
the Act.
WE WILL offer Anthony Gotto immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
WE WILL reimburse him for any loss of earn-
ings he may have suffered because we dis-
charged him, together with interest.
WE WILL expunge from our files any refer-
ences to the discriminatory discharge of An-
thony Gotto on June 19, 1981, and WE WILL
notify him that this has been done and that
evidence of this unlawful discharge will not be
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used as a basis for future personnel actions
against him.
PROGRESSIVE BUILDING METHODS,
INC.
DECISION
BURTON S. KOLKO, Administrative Law Judge: The
complaint alleges that Progessive Building Methods, Inc.,
also known as PBM (herein called Respondent), engaged
in unfair labor practices under Section 8(aX)( and (3) of
the Act by laying off employee Anthony Gotto (herein
called Charging Party), refusing to transfer him to an-
other jobsite, and refusing to reinstate him, despite the
availability of work he was able to perform.
The complaint was issued on September 10, 1981,
upon a charge filed on July 7, 1981, by Laborers' Inter-
national Union of North America, AFL-CIO, Local
Union No. 894 (herein called the Union). It alleges that
Respondent, through its agent and supervisor, Ron
Moon, had warned Anthony Gotto, that he would prob-
ably be laid off because he had filed a grievance. The
complaint further alleges that Respondent had warned
the Union's business agent (Rob'ert Allen) that Gotto
would be laid off unless he dropped the grievance. By
these actions, the General Counsel urges a finding of a
violation of Section 8(a)(1) and (3) of the Act.
In its answer, Respondent admitted the supervisory
status of Ron Moon but denied the unfair labor practice
allegations. The hearing was held March 4, 1982.
Upon the entire record, particularly my observation of
the demeanor of the witnesses, I make the findings and
conclusions that follow.'
Respondent's answer admits that it is an employer en-
gaged in the construction industry as a general contrac-
tor or as a subcontractor in Northeastern Ohio and that
annually it purchases goods valued in excess of S50,000
directly from points located outside the State of Ohio.
Thus, Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
The Union involved is now, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
Events Leading To Gotto's Layoff
Anthony Gotto was hired by Respondent around
April 1, 1981, to work as a mason tender.2 He had 13
years' experience in this trade. Gotto worked for Re-
spondent at approximately six worksites. His foreman at
all the sites was Ron Moon, the same person who had
hired Gotto.
Sometime in May, Moon informed the workers that
the vice president of PBM, Richard Burson, had refused
I Respondent chose not to participate in the hearing. In a letter to the
counsel for the General Counsel dated February 26, 1982, counsel for
Respondent indicated that he would not appear and that Respondent
would be out of business shortly. Instead of issuing a defaulty judgment,
I felt that it was best to allow counsel for the General Counsel to present
her evidence, which she did. After hearing her witnesses and oral argu-
ment, the record was closed, post-hearing briefs having been waived.
s A mason tender generally gets the job ready so that bricklayers may
begin-building scaffolding, making mortar, etc.
to pay the wage increase due to the union members that
month, according to a contract agreement. Around mid-
May, Gotto contacted Union Business Agent Robert
Allen about Burson's refusal to pay the wage increase.
Allen instructed Gotto to file a grievance. It was filed on
June 1, 1981.
The following day, Gotto informed Moon that he had
filed the grievance. (Moon was a friend of Gotto's and
Gotto did not wish to have Moon caught off guard by
the grievance.) Moon replied that he would probably
have done the same thing, but that it was probably going
to cost Gotto his job, and that he would probably be laid
off.
On June 16, Robert Allen, the union business agent,
went to see Burson to deliver Gotto's grievance and to
talk about the wage increase that Burson had agreed to
in the union contract. Burson remained adamant-he
would not pay the increase.
On June 18, Moon approached Gotto and told him
that Burson had received a copy of his grievance.
Burson had told Moon that if Gotto did not drop the
grievance he would be laid off. Gotto refusecd to drop
the grievance. The next day, when Gotto arrived on the
job, Moon told Gotto he had his paychecks for him, and
that Gotto was to be laid off at the end of the day.
Discussion and Findings
Although Respondent did not appear at the hearing to
make a defense, there is more than sufficient evidence on
record to show a violation of Section 8(aXl) and (3) of
the Act. Moon, acting as an agent of Respondent, made
it clear to Gotto that he would be laid off if he filed the
grievance. The day after Gotto refused to withdraw the
grievance he was laid off. Further, Gotto testified that
there was much more work to be done on the jobsite.
Frank Willis, president of the Union, Local 894, testified
that he visited a PBM site that following August, and
that there were nonunion men working as mason tenders
at the site. Under the contract the Union had with PBM,
Gotto had recall rights up to I year after his layoff. He
had never been recalled to work at any of the PBM sites.
Gotto's work had elicited comments from Moon on
two occasions, one of which was only a week before he
was laid off. Both times Moon had told Gotto that things
ran more smoothly with him there than they had before,
that Gotto was reliable and kept the crew working.
Surely, then, there can be no reason for Gotto's layoff
other than his filing the grievance. In effect, Gotto was
constructively discharged. Respondent violated Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By laying off Anthony Gotto because he filed a
grievance with the Union against Respondent, Respond-
ent has violated Section 8(a)(1) and (3) of the Act.
2. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
978
PROGRESSIVE BUILDING METHODS, INC.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it cease and
desist from engaging in such practices and take affirma-
tive action designed to effectuate the policies of the Act.
I shall recommend that Respondent be required to offer
Anthony Gotto 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 senior-
ity and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reasons
of such discrimination by payment of a sum of money
equal to that which he normally would have earned as
wages from the date of his discharge on June 19, 1981,
to the date of his offer of reinstatement, less his net earn-
ings during such period, with backpay computed on a
quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
with interest thereon as set forth in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). Respondent shall make avail-
able to the Board, upon request, all payroll and other
records to facilitate checking the amount of earnings
due.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER3
The Respondent, Progressive Building Methods, Inc.,
Akron, Ohio, its officers, agents, successors, and assigns,
shall:
3 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 find-
ings. conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
1. Cease and desist from:
(a) Discharging employees because they utilize the
grievance procedure or engage in other union or other
protected concerted activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Anthony Gotto immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of the discrimination against him in the manner de-
scribed above in the section entitled "The Remedy".
(b) Post at its facility in Akron, Ohio, copies of the at-
tached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 8, shall be signed by Respondent's representative
and immediately posted upon receipt, and shall be main-
tained by Respondent for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Respondent shall
take reasonable steps to ensure that such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply with this Order.
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purpose.
4 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
979