Ram, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1975

218 N.L.R.B. 430 (N.L.R.B. 1975)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ram, Inc. and Marce Frost. Case 26-CA-5337
June 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On March 24, 1975, Administrative Law Judge
Michael O.. Miller issued the attached Decision in
this proceeding and on April 17, 1975, issued an
errata thereto. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 1 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Ram, Inc., Crossett,
Arkansas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I We reject Respondent's frivolous contention that Jerry Frost was not a
party to this proceeding and therefore cannot be afforded any relief because
"this,hearing was filed on behalf of Marce Frost " It is true that the charge
was filed by Marce Frost. However, it is also true that the charge, amended
charge, and the complaint allege that Jerry Frost was terminated in
violation of Sec. 8(a)(3) of the Act.
Upon the entire record," including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is an Arkansas corporation with an office
and place of business in Crossett, Arkansas, where it is
engaged in the construction industry. During the past 12
months, a representative period, Respondent in the course
of its business operations purchased and received at its
Crossett, Arkansas, location products' valued in excess of
$50,000 directly from points located outside the State of
Arkansas, and, during the same period, Respondent
performed services outside the State of Arkansas which
were valued in excess of $50,000. The complaint alleges,
Respondent admits, and I find that Respondent is engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, Local Union No.
710, herein the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
HL THE UNFAIR LABOR PRACTICES
A. The Issues
At issue herein is whether Respondent discharged
and/or refused to hire or reinstate Marce Frost and Jerry
Wayne Frost because of the union or protected concerted
activities of either or both of them. Also at issue is whether
Respondent unlawfully threatened its employees by a
statement made to Jerry Frost at the time he was
discharged.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard before me on January 28, 1975, in
Hamburg, Arkansas, based upon a charge and amended
charge filed by Marce Frost, an individual, on October 21,
and November 25, 1974, respectively, and a complaint
which issued on December 2, 1974, all of which were duly
served upon Ram, Inc., herein the Respondent. The
complaint alleged violations of Section 8(a)(1) and (3) of
the Act. Respondent filed an answer and an amended
answer which denied the substantive allegations of the
complaint and the commission of any unfair labor
practices.
i General Counsel 's unopposed motion to correct the transcript is
granted.
218 NLRB No. 70
B. The Sequence of Events
Marce Frost is a journeyman ironworker and his son,
Jerry Frost, is an apprentice in the same trade.2 Both are
members of the Union and secure their employment
through it. They are "rod men ," laying and tying iron rods
used in concrete construction.
1. The initial period of employment of Marce
and Jerry Frost
On August 1 (all events herein occurred during 1974), the
Union sent Marce and Jerry Frost to work with other
ironworkers for Respondent, a union contractor, at a
jobsite in Crossett, Arkansas.
The foreman on the job was William Smith, an
ironworker and fellow member of the local union. The
2 For purposes of identification herein, the Frosts will be referred to by
their given names.
RAM, INC. 431
union steward was Johnny McKoin. The Frosts worked,
without incident, until August 16.
The hours of the job, as set by Respondent, were 7 a.m.
to 3:30 p.m.3 On August 16, however Respondent
announced a change in the hours of work, advancing the
starting and quitting times by 1 hour. The change had been
decided upon and implemented, unilaterally, in order to
avoid[ delays in starting work. Respondent's mechanics
began work at 7:30 a.m. When equipment needed
mechanical attention before work could begin, the crew
coming on at 7 a.m. would be kept waiting unproductively.
When informed of the proposed change, William Smith's
crew., consisting of the two Frosts and one other rodman,
Tommy Ewing, called their steward and announced their
intention to quit unless the hours remained unchanged.
McKoin, the steward, went forward and spoke with
George Love, construction manager. Love reaffirmed the
Employer's plan and when McKoin so reported, the
Frosts, Ewing, and two or three structural ironworkers
immediately quit.
2. Jerry Frost's subsequent employment by
Respondent
Jerry Frost was rehired by Respondent about September
3. William Smith knew in advance that Jerry was coming
back to work because Jerry had called him on the night
prior to his return. Smith did not object to Jerry's
remployment. When Gary Keene, Respondent's general
superintendent, first noticed Jerryon the job, he told Smith
and Johnny McKoin that as a general rule he did not allow
a man who had quit to come back to work, for fear that he
would quit again. However, Smith encouraged Keene to
retain him, and as Jerry had already started work, he was
allowed to remain.
A few days after he returned to Respondent's employ,
Jerry noticed Gary Keene moving some iron. Deeming this
to be unit work, he told Keene, "we put the iron there ...
we would move it." He also mentioned this incident to a
fellow employee and to the steward, McKoin. McKoin
spoke to Keene about it and Keene stated that he would
not do it in the future. Keene denied that Frost or McKoin
spoke to him about this incident. He testified that only
William Smith mentioned it to him, I do not credit Keene's
denial and, in this instance, credit McKoin's testimony .4
On Sunday night, September 8, Jerry Frost received
word from a fellow employee, Roy Smith, that there would
be no work the following morning because of rain in the
Crossett area. He did not report for work Monday and,
when he called William Smith (no relation) to find out if
there would be work on Tuesday, he learned that Smith
and two other men had worked. The two who worked were
not members of the local union. Disturbed by this, Jerry
Frost spoke with Roy Smith and Roy stated that he would
talk: to the steward about the incident. Roy Smith called
3 The collective-bargaining agreement, art. IV, provided, inter adia.
Work Hours Per Day
Eight (8) hours shall constitute a day's work from 7 00 a.m. to 5.00
p.m... .
Changes in the work hours per day in special cases, not to exceed an 8-
the union business agent who, in turn, called William
Smith. Because of his conversation with Jerry Frost,
William Smith concluded that Jerry had caused the
business agent to call him. On the following day Frost,
along with several other employees, spoke to William
Smith and told him that they did not think it was right for
them to be told not to report for, work when Smith and two
other employees worked. Mcoin also spoke to William
Smith about the matter and then told the crew that he
would see whether he could get them paid for the day.
Jerry Frost worked on Tuesday, September-10, without
incident. However, on the morning of Wednesday, Septem-
ber 11, William Smith took Jerry aside, handed him two
checks, and told him that he was being let go. Jerry asked
for a reason and was told that his work was not
satisfactory. Jerry refused to be satisfied by this reason and
pressed Smith for a better or more acceptable answer.
Smith asked him if he wanted to talk to Gary Keene and
they walked over to Keene. On the way, Jerry motioned
the steward, McKoin, to join them. With Keene and
McKoin present, Jerry Frost continued to press Smith for
another answer as to why he was being terminated. Finally,
Smith stated: "Your work is unsatisfactory, you have got a
bad attitude, you're an instigator, and you're fired, I don't
want to hear another word about it." Smith, on cross-
examination admitted that he had referred to Jerry Frost as
an "instigator" or "agitator" when he fired him and that by
using such terms he had reference "to the trouble caused
over the rainy Monday that we worked."
Immediately after his discharge, Jerry Frost contacted a
private attorney who drafted a letter to Respondent, the
subject of which was, "Jerry Frost, unfair labor practice."
The letter demanded an explanation of Jerry's discharge
and threatened legal action. Respondent's personnel
director, Terry Garrett, responded by letter dated Septem-
ber 16, stating that Jerry Frost was terminated for
unsatisfactory work performance.
3. Marce Frost's subsequent employment and
Ram's refusal to rehire him
Around the middle of September, shortly after his son's
termination, Marce Frost was called by the Union and
directed to report to Ram's main office. He was told that
he would be working for Lane Amos. Amos was Respon-
dent's subcontractor. However, the request for employees
had been made by Respondent. Marce reported to the
jobsite on a Friday and the following Monday but Amos
and his crew did not show up. While waiting for Amos, and
later, while working with him; Marce saw, was seen by, and
spoke to George Love, Respondent's construction manag-
er. Amos showed up at the site on Tuesday and Marce
worked for him until midday on Friday, when the work
was completed. Upon completion of the work, Amos sent
Marce to Ram's office to turn in his time and get paid. At
hour day may be made to meet special conditions upon application to
and approval of the General Executive Board.
4 McKoin, generally , failed to impress me as a credible witness He
endeavored throughout his testimony to avoid saying anything adverse to
Respondent's interests . However, to the extent that his testimony is contrary
to that of Respondent 's witnesses , and is otherwise plausible, or corroborat-
ed, it is credited.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office, he was told that there was no one present to pay
him and he would have to wait. He returned to the mill
yard and was advised by the steward that he would be
entitled to waiting time. On returning to the office, he saw
Amos and told him that he would be claiming waiting
time . The record does not reflect whether Marce actually
claimed or received payment for his waiting time. He was
paid by Ram.
On September 24, Marce Frost was again sent to
Respondent for employment. As he was starting out to
work, the general foreman, Monroe Sherick, told him that
Ram did not want him on the job. The decision not to
rehire Marce Frost was made by Gary Keene, general
superintendent , because as Keene testified:
... he was not the best of ironworkers, He had quit
me and left me in a considerable bind, and I thought
the job and Ram as a whole would be better off without
him.
Keene further testified:
Q. (By Mr. McClane) Now, as far as the hiring of
Marce Frost, your testimony indicates that you were
one of the prime movers in that decision not to rehire
him?
A. (By Witness) Yes, sir.
Q.
not?
This was after Jerry had been terminated, was it
A. I believe so, yes, sir.
Q. Didn't the fact that there had been a little stink
about Jerry and he had made some noise, that fact,
enter into the decision not to rehire Mr. Frost on the
job?
A. I'm sure it did, it would have been hard not to.
Q. Were you aware of any correspondence that
had been filed by Jerry against the company?
A. No, sir.
Q. Have you heard about any?
A. Work shack rumors, yes, sir.
Q. What had you heard?
A. That he was going to the labor board.
George Love was also aware that Jerry Frost intended to
protest his discharge. However, he claimed that he was not
involved in the decision to refuse employment to Marce
Frost.
On September 25, Respondent sent a letter to the Union
stating that Marce Frost, Jerry Frost, and a third
individual, Melvin Wilson (not otherwise identified) would
not be rehired by Ram.
4. Jerry Frost's work performance
Respondent contends that Jerry Frost's work perfor-
mance was substandard and that he was terminated for
that reason. General Counsel contends that his work was
satisfactory and that the alleged unsatisfactory work
performance was a pretextual reason for an otherwise
unlawful discharge. I am persuaded by the evidence and
the demeanor of the witnesses that the reference to Jerry
Frost's work performance was a pretext and that unsatis-
factory work performance was not the real reason for his
discharge.
As an apprentice in the fourth 6-month period of his
apprenticeship, Jerry Frost was entitled to 85 percent of the
contract scale for rodmen. However, in both periods of
employment by Ram and until his discharge in September,
he was paid journeyman's scale. Jerry testified, and Marce
corroborated, that within 3 or 4 days after he first began to
work for Respondent, he had advised William Smith that
he was an apprentice. Smith told hum that it made no
difference, but they were going to pay him the journey-
man's rate "because he was worth it." 5
William Smith testimonially characterized Jerry's work
as unsatisfactory during both periods of employment,
particularly the second. This characterization is contradict-
ed, however, by the higher-than-required rate of pay given
Jerry, as described above, by the fact that Jerry was rehired
with the encouragement of Smith, and by the express
statements of William Smith and Gary Keene to Roy
Smith and McKoin, to the effect that Jerry was a good
employee. I do not credit William Smith's assertion that he
only told employees that Jerry was doing well because he
did not want to cause trouble by saying otherwise. Had this
been the case, I believe, based upon my observation of him
as a witness, that he would have said something less
positive, more neutral, about Jerry. I also note that
McKom was the steward, with whom the, supervisor would
have to consult in disciplining an employee. Had Jerry's
work been substandard, William Smith would have told
McKoin so, when asked. Neither do I credit Smith's
statements that he allowed Jerry to return to work in the
hope that he would perform better working without his
father. There was no evidence that Marce Frost was a poor
employee'or hindered his son's work performance.
Similarly, I do not credit the testimony of McKoin to the
effect that a week or 10 days before Jerry Frost was
discharged, William Smith told him that Respondent was
considering terminating Jerry. In reaching this conclusion,
I note the basic untrustworthiness of McKoin's testimony
as described in footnote 4 above, and the fact that at the
time of the alleged statement by Smith to McKom, Jerry
had only just returned to work.
Jerry Frost's work" performance and attitude may not
have been exemplary. Indeed, he did not deny that he may
have suggested to other employees that they slow down
and not try to complete the job in a day. However, any
failings in his work or attitude were passed over by William
Smith, his supervisor, who did not warn him about his
work. I find that this inaction by Smith was caused by
more than an unwillingness to offend fellow employees. It
was the result of a lack of concern. If Jerry's work
performance did not concern Smith enough to warrant a
warning, I conclude that it did not concern Smith enough
to warrant Jerry's discharge.
5 William Smith's contrary testimony is not credited It is particularly though, according to Smith , he reported the fact that Jerry was an
noted that Smith claimed that he first learned of Jerry's apprentice status at apprentice to George Love. I also specifically credit the testimony of Marce
the end of the first period of employment or the beginning of the second . No and Jerry Frost in this instance and generally . They impressed me as
change was made in Jerry 's rate , however, until his termination , even witnessess who endeavored to tell the truth
RAM, INC.
C. Analysis and Conclusions
As noted above , Jerry Frost was not discharged because
of his work performance . He was discharged , as admitted
by William Smith, because by initiating a series of events
leading to a call by the business agent and complaints by
the steward and other employees in regard to the "rainy
day incident," he had become an "instigator " or "agit-
ator." I do not doubt, moreover , that Jerry Frost's
objection to Gary Keene performing unit work , the iron
moving incident, while perhaps almost insignificant in
itself, when coupled with his objections to losing a day's
pay while other employees worked, added to Respondent's
view of him as an undesirable "instigator." It is axiomatic
that an employee's right to bring such matters as these to
the attention of his union representative is protected by the
Act. Moreover, the fact that Jerry Frost's complaints may
have been unreasonable , unwise, or without merit is
irrelevant . See e.g., Spinoza, Inc., 199 NLRB 525 (1972);
Mushroom Transportation Co., Inc., 142 NLRB 1150, 1158
(1963), reversed on other grounds 330 F .2d 683 (C.A. 3,
1964). Accordingly , I- find and conclude that the discharge
of Jerry Frost violated Section 8(a)(3) and (1) of the Act.
It follows from the above that the refusal to rehire Marce
Frost, which Respondent's general superintendent, Gary
Keene admitted stemmed at least in part from his
relationship to Jerry and the fact that Jerry had indicated
an intention to protest his discharge , also violated Section
8(a)(l) and (3) of the Act. Superior Micro Film Systems,
Inc., and/or Wilfred W. Burgart and Jesse Guido, Partners
d/b/a B. G. Management Company, 2011 NLRB 555 (1973).
I would have so found , even without Keene's admission,
because of the timing of the events herein and because no
other conclusion is plausible.
In reaching my conclusions herein, I have not relied on
General Counsel 's contention that the Frosts were engaged
in protected activity when they concertedly walked out on
August 16 because of the changes in the hours of work.
Pursuant to the contract, the scheduling of the hours within
a framework of 7 a.m. to 5 p.m. was within management's
prerogative . The walkout in protest thereof was a breach of
the contractual no-strike agreement s On the other hand, I
have not concluded that Marce and Jerry Frost were
lawfully discharged for breach of this no -strike provision.
Apart from the evidence that Respondent was otherwise
motivated , Respondent condoned their breach of the no-
strike clause by reemploying each of them, and by failing
to take action against them or other employees who
participated in this work stoppage . American River Con-
structors, 163 NLRB 551 (1967).
Finally, I conclude that by referring to Jerry Frost as an
"agitator" or "instigator" in the course of the discharge
conversation , in the presence of the steward, an employee,
and in the context of Jerry Frost's activities herein,
Respondent impliedly threatened similar reprisals against
its employees , in violation of Section 8(a)(1) of the Act.
Beyerl Chevrolet, Inc., 199 NLRB 121 (1972).
6 Art . II of the agreement states:
There shall be no stoppage of work , either by strike, jurisdictional
dispute, lockouts , boycotts , or otherwise , and no picketing by the
Union or its agents , during the life of this agreement , except for a
433
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
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.
CONCLUSIONS OF LAW,
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Jerry Wayne Frost on September 11,
1974, and thereafter refusing to reinstate him for engaging
in union and protected concerted activities and by refusing
to rehire Marce Frost on September 24, 1974, and
thereafter because of Jerry Wayne Frost's union and
protected concerted activities, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. By threatening employees with reprisals if they
engaged in union or protected concerted activities, Re-
spondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
5. The foregoing unfair labor practices affect com-
merce within, the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged the above-named employees, and/or refused to
rehire or reinstate them, I shall recommend that it be
ordered to notify the Union that it has no objections to
their reemployment, to offer them full reinstatement, with
backpay computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950) and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), from the date of the
discharge to the date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
violation of this Agreement, and then only after all grievance procedure
stipulated herein has been exhausted
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER?
Respondent, Ram, Inc., Crossett, Arkansas, its officers,
agents, successors, and assigns, shall: -
1. Cease and desist from:
(a) Discouraging activities on behalf of International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, Local Union No. 710, or any other
union, or other protected concerted activities, by discrimi-
natorily discharging or refusing to rehire or reinstate its
employees or by discriminating in any other manner with
respect to their hire or tenure of employment or any term
or condition of employment.
(b) Interfering with, restraining or coercing employees by
threatening them with reprisals if they engage in union or
other protected concerted activities.
(c) In any 'like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Marce Frost and Jerry Wayne Frost
immediate and full reinstatement to their former jobs or, if
their -former jobs no longer exist, to substantially equiva-
lent positions, without loss of seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered in the manner set forth in "The
Remedy" section of this Decision, and notify the Union
that it has no objections to their reemployment.
(b) Post at is plant and office in Crossett, Arkansas,
copies of the notice marked "Appendix." 8 Copies of the
notice, on forms provided by the Regional Director for
Region 26, shall, after being duly signed by Respondent's
authorized representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained 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 the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
r 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 findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words of 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.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any of our employees because they complained
to the union steward or business agent about working
conditions or about violations of the union contract or
in order to discourage activities in support of Interna-
tional Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO, Local Union No. 710, or
any other union.
WE WILL NOT interfere with, restrain or coerce
employees by discharging or in any other manner
disciplining them or by threatening to discharge or
discipline them because they have complained to the
union steward or business agent or engaged in other
union or protected concerted activities for the purpose
of collective bargaining or other mutual aid or
protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Marce Frost and Jerry Wayne Frost
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, and will
make each of them whole for any loss of earnings they
may have suffered.
WE WILL notify the Union that we have no
objections to the reemployment of Marce Frost and
Jerry Wayne Frost.
RAM, INC.