R & H Masonry Supply, Inc.

National Labor Relations Board - Board DecisionsMar 5, 1981

254 N.L.R.B. 1082 (N.L.R.B. 1981)

ION2 DEClSlONS BOR & and Respon- & 8(a)(5), (3), ~ecognize Cas:ro, cause terrrinated ab0f.e-named enforce- men1 Appc:als lease court':i rc:cognizes fi1c:d remedy case Re- sponde~rt Lippe, Mar- any I? U! Woolworth (1950), Res~ondent discriminatori- ly back- U! 1qc) & Iris d 138 716 compute parl~al dissent Corporalion, 146 (1980). RELATIONS BOARD OF NATIONAL LA R H Masonry Supply, Inc. General Team- sters, Warehousemen and Helpers Union Local 890, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 32-CA-530 March 5, 1981 SUPPLEMENTAL DECISION A N D ORDER On September 29, 1978, the National Labor Re- lations Board issued its Decision and Order in the above-entitled proceeding1 finding that dert , R H Masonry Supply, Inc., had violated Section and (1) of the National Labor Relations Act, as amended, by, inter alia, refusing to and bargain with the Union as the ex- clusive collective-bargaining representative of its employees, discharging employees Ross, Lippe, and Marquez because of their union activi- ties, and contracting out bargaining unit work be- of the union activities of its employees, and ordt ring that Respondent reestablish its unlawfully trucking operation and reinstate the employees to their former jobs. Thereafter, the Board filed a petition for of its Order with the United States Court of for the Ninth Circuit. On September 17, 1980 the court issued its decision2 in which it en- forced the Board's Order in part and remanded the case to the Board for further consideration of that portion of the Order requiring reestablishment of its trucking operation and reinstatement of the dis- charged employees. The court reasoned that this part of the Order would require a substantial cap- ital outlay by the Company either to purchase o r to suitable trucks and that the Company's small size and minimal profit margin made such an Order inappropriate. O n October 28, 1980, the Board accepted the remand. Thereafter, the General Counsel filed a timely statement of position with the Board regarding the issues under consideration. Having accepted the remand, the Board respect- fully the above-mentioned court opinion as bincing upon it for the purpose of deciding this case. Accordingly, pursuant to the court's direction and after having considered the statement of posi- tion by the General Counsel, w e shall modify the and Order to reflect the circumstances of this by eliminating the requirement that reestablish its trucking operation. We shall require that Respondent recognize and bargain collectively with the Union, at the Union's request, including bargaining concerning the deci- sion and effects of the termination of its trucking operation on the Unit employees. W e shall order Respondent to make whole former employees Ross, Castro, and quez, who were discriminatorily terminated be- cause of Respondent's terminating its trucking op- eration, for loss of pay suffered by reason of the discrimination against them by paying to each of them a sum of money equal to the amount he would normally have earned as wages from August 12, 1977, until such time as each secures, o r did secure, substantially equivalent employment with other employers, computed in accordance with the formula prescribed in Company, 90 NLRB 289 with interest as prescribed in Florida Steel Corporation, 231 NLRB 65 1 (1 977). In the event that reestablishes its trucking operation, we shall order that Respondent offer to each of the aforementioned terminated employees immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed. Their pay shall be based upon the earnings which they normally would have received from August 12, 1977, when they were discharged, to the date of Respondent's offer of reinstatement, less any net in- terim earnings, or until they obtain, o r did obtain, * substantially equivalent employment elsewhere, and shall be computed on a quarterly basis in the manner set forth in F. Woolworth Company. supra, with interest as prescribed in Florida Steel ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, R H Masonry Supply, Inc., Salinas, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concern- ing union activities. (b) Telling employees that employees were dis- charged because of their union activity. See. generally. Plumbing Hearing Co., NLRB (1962). Member Jenkins would interest in accord with his in Olympic Medical 250 NLRB & INC. :s (f) Rt:fusing Chauffellrs, & e~;clusive en~ployees chauics Tak: ~olicies Offer c!mployment Irloney such I? Prest:rve pa!rroll olher backpay be above, Lippe, theysuffered ." "Appen- d i ~ . " ~ the RelationsBoard" States Relat~ons NOTICE TO NOT WILL WILL Cali- 1083 R H MASONRY SUPPLY. (c) Attempting to remove employees from the bargaining unit in order to interfere with its em- ployees' union activities. (d) Discharging or otherwise discriminating against any employee because of the union activi- ties of i employees. (e) Contracting out bargaining unit work because of the union activities of its employees. to recognize and bargain with Gen- eral Teamsters, Warehousemen and Helpers Union Local 800, International Brotherhood of Teamsters, Warehousemen Helpers of America, as the collective-bargaining representative of its in the following appropriate unit: Truck drivers, forklift drivers, over-the-road drivers, yardmen, helpers, maintenance me- employed by Respondent at its Salinas, California, facility; excluding supervisors, office clerical employees, and guards as de- fined in the Act. (g) In any other manner interfering with, re- straining, or coercing employees in the exercise of the right!; guaranteed them in Section 7 of the Act. 2. the following affirmative action which the Board has found necessary to effectuate the of the Act: (a) Larry Lucas the same wages and condi- tions of he enjoyed prior to August 12, 1977, snd make him whole for any loss of earn- ings he may have suffered by payment to him of a sum of equal to the amount he normally would have earned as wages and other benefits from the date of his discharge until the date on which an offer is made in the manner set forth in W. Woolworth Company, supra, and Flor- ida Steel Corporation, supra. (b) and, upon request, make available to the Board or its agents, for examination and copy- ing, all records, social security payment re- cords, timecards, personnel records and reports, and all records necessary to analyze the amount of due under the terms of this Order. (c) Upon request, recognize and bargain with the Union, as t exclusive collective-bargaining repre- sentative of its employees in the bargaining unit set forth including bargaining concerning its decision to close the trucking operation and the ef- fects of the closure on the employees, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (d) Treat the initial year of certification as begin- ning on the date this Order is complied with. (e) Offer reinstatement to Rory Ross, Joseph Gary Castro, and Paul Marquez, and make them whole for any losses by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "Amended Remedy (f) Post at its Salinas, California, place of busi- ness copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's authorized representa- tive, shall 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in notice reading "Posted by Order of the National Labor shall read "Posted Pursu- ant to a Judgment of the United Court of Appeals Enforcing an Order of the National Labor Board." APPENDIX EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercive] y interrogate em- ployees concerning union activities. WE WILL NOT tell employees that employ- ees were discharged because of their union ac- tivity. WE WILL NOT attempt to remove employees from the bargaining unit in order to interfere with our employees' union activities. WE W ILL discharge or otherwise dis- criminate against any employee because of the union activity of our employees. WE NOT contract out bargaining unit work because of the union activities of our employees. WE NOT refuse to recognize and bar- gain with General Teamsters, Warehousemen and Helpers Union Local 890, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclu- sive collective-bargaining representative of our employees in the following appropriate unit: Truckdrivers, forklift drivers, over-the-road drivers, yardmen, helpers, maintenance me- chanics employed by us at our Salinas, 108r W E DECISIONS OF NATIONAL LABOR RELATIONS BOARD fornia, facility; excluding supervisors, office clerical employees, and guards as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole Rory Ross, Joseph Lippe, Gary Castro, and Paul Marquez, who were discharged on August 12, 1977, as a result of the termination of our trucking oper- ation, for any loss of pay resulting from their discriminatory discharge, plus interest. Back- pay will run from the date of discharge until such time as the aforesaid employees secure, or did secure, substantially equivalent employ- ment with other employers or, in the event we reopen the trucking operation, until we offer to reinstate them. WE WILL, in the event we reopen the truck- ing operation, offer immediate and full rein- statement to each of the aforesaid employees to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL offer Larry Lucas the same wages and conditions of employment he enjoyed prior to August 12, 1977, and make him whole for any loss of earnings he may have suffered, plus interest. WE WILL, upon request, recognize and bar- gain with said Union as the exclusive collec- tive-bargaining representative of our employ- ees in the bargaining unit set forth above, in- cluding bargaining about our decision to close the trucking operation and the effects upon our employees, and, if an understanding is reached, WILL embody such understanding in a signed agreement. WE WILL treat the initial year of certifica- tion as beginning on the date that we do the things set forth in this notice.