Victor Otlans Roofing Co.Download PDFNational Labor Relations Board - Board DecisionsMay 28, 1970182 N.L.R.B. 898 (N.L.R.B. 1970) Copy Citation 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Victor Otlans Roofing Co and United Slate, Tile & Compo sition Roofers , Damp & Waterproof Workers' Associa- tion, Local Union No 153 AFL-CIO Case 19-CA-4475 May 28, 1970 DECISION AND ORDER By MEMBERS FANNING BROWN AND JENKiNS On February 12, 1970, Trial Examiner David E Davis issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief ' The General Counsel filed a brief in support of the Trial Examiner's Decision and in opposition to the Respondent's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein The Trial Examiner in his Conclusions of Law found that Respondent, by its discharge of Larrell Lane on April 18 1970, and its failure to reinstate him thereafter, because of his union activity, engaged in conduct viola- tive of Section 8(a)(3) and (1) of the Act We except for the date of Lane's discharge Our review of the record convinces us that Otlans, Respondent herein, was on April 18 willing to retain Lane in its employ after the latter's protest at not receiving the journeyman s rate, if Lane were willing to work as a kettleman at the helper's wage rate After the Etherington meeting with Otlans on April 21, which resulted in the payment of the journeyman's wage rate to Lane, Otlans intention to retain Lane vanished It is clear that after the April 21 meeting Lane, although reporting for work, was refused employment without a satisfactory explanation by Respondent or its supervi sor for such refusal, even though Etherington had been informed by Otlans on April 21 that Lane was not discharged and was to report for work the next morning, which 1 ine did Then on April 25 when Lane picked up hi, paycheck for the previous pay period he was ' I hL Respondent his included in its brief a motion to reopen the he inn, The. s ime motion ss is included in its brief to the Trial Examiner The Tri it I x unmer denied Respondent s motion for the reason stated in his Decision We i,ree with the Tn it Ex'immer s reasons for denying the motion and hereby idopt his re icons is our own in denying the motion informed by Bostnick that he was discharged, with no reason given On the basis of the above, we conclude and find that Lane was constructively discharged on April 21, and that his discharge was formalized on April 25, in violation of Section 8(a)(3) and (1) of the Act Accordingly, we shall amend the Trial Examiner s Conclusion of Law number 3 to read as follows 3 Respondent, by its constructive discharge of Larrell Lane on April 21 which was confirmed in fact by a formal discharge on April 25, and its failure to reinstate him after April 21, because of his individual grieving and by the intervention of the Union on his behalf, engaged in conduct violative of Section 8(a)(3) and (1) of the Act We further amend the Trial Examiner's Decision, section V entitled "The Remedy, by changing the date in the second paragraph from April 18 to 21 ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Victor Otlans Roofing Co Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below I Delete paragraph 2(a) and substitute the following (a) Offer immediate and full reinstatement to employee Larrell Lane 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 to make him whole in the manner described in `The Remedy" section of this Decision for any loss of earnings suffered by him by reason of the discrimination against him " 2 Delete the last indented paragraph of the Appendix and substitute the following WE WILL offer immediate and full reinstatement to employee Larrell Lane to his former job or, if that job no longer exists, to a substantially equiva lent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him with interest at 6 percent per annum MEMBER BROWN, dissenting In the circumstances of this case, I believe that the matter in dispute would be handled more appropriately through the salutary procedures of the grievance-arbitra- tion provisions of the parties' agreement than in this unfair labor practice proceeding I would therefore dis- miss the complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E DAVIS, Trial Examiner Upon a charge filed on August 18, 1969 , by United Slate Tile & Compo- 182 NI RB No 137 VICTOR OTLANS ROOFING CO. 899 sition Roofers, Damp & Waterproof Workers' Associa- tion, Local Union No. 153, AFL-CIO, herein called the Union, this proceeding, under Section 10(b) of the National Labor Relations Act, herein called the Act, was heard pursuant to due notice in Tacoma, Washing- ton, on December 18, 1969. The complaint, issued Octo- ber 16, 1969, alleged in substance that Victor Otlans Roofing Co., herein called Respondent, refused to employ Larrell Lane on and after April 22, 1969, because Larrell complained to the Union that Respondent was not paying him the proper rate required under the terms of the labor agreement in effect between the Union and Respondent. The answer of Respondent dated November 18, 1969, while admitting some of the allega- tions of the complaint, denied that Respondent had committed any unfair labor practices. Upon the entire record' in the case, my observation of the demeanor of the witnesses and consideration of the briefs,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Washington corporation with an office and place of business in Tacoma, Washington, has been engaged in roof contracting work at jobsites in the State of Washington. It performs services valued in excess of $50,000 annually for customers engaged in interstate commerce and purchases and causes to be transported and delivered to its various jobsites goods and materials valued in excess of $50,000 which were received by the sellers from points outside the State of Washington. Respondent is a member of the Roofing Contracting Association of the State of Washington, herein called the Association, a multiemployer associa- tion of various roofing contractors in the State of Wash- ington. Said Association was formed and exists for the purpose, among other things, of representing its members in collective bargaining with labor organiza- tions, including the Union. The members of said Associa- tion receive an annual gross income exceeding one mil- lion dollars and annually produce goods and supplies from outside of the State of Washington valued in excess of $50,000. Respondent is a party to a contract between the Union and the Association executed on April 1, 1968, and terminating on March 31, 1971. Respondent admitted the foregoing allegations of the complaint and I find that Respondent and the Association are, and have been at all times material herein, employers within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Evidence Leland Etherington, financial secretary and business agent of Roofers, Local 153, Charging Party herein, testified that he has held the foregoing positions for the past 11 months; that prior to that he was a journey- man roofer; that on April 21, 1969,3 Larrell Lane, an employee of Respondent classified as a helper, contacted him at his office about 7:30 to 8 a.m.; and that Lane complained that he was not being paid the proper rate under the terms of the labor agreement in effect between the Union and Respondent. Specifically, the complaint was directed to the fact that Lane was being paid $4.83 per hour while he was employed as a kettleman when he should be paid $5.68 for this work.4 Etherington, upon hearing Lane's complaint, called Victor Otlans, president of Respondent, on the telephone and made an appointment with him for 10 a.m. While Lane waited outside of Respondent's office, Etherington discussed the situation with Otlans and explained to him that the terms of the labor agreement required that Lane be paid kettleman's wages for the period he was employed as a kettleman by Respondent. Otlans contend- ed that as Lane was classified as a helper he was not entitled to journeyman's wages. Otlans finally con- sented to pay Lane the difference between kettleman's and helper's wages for all the hours Lane had been employed by him as a kettleman. Otlans called his accountant, had a check made out for the difference, and went outside where he gave the check to Etherington who in turn turned it over to Lane.' At this point, Etherington asked Otlans if Lane was discharged or if he still had a job. Otlans replied that he still had a job and to report to work that next day. Larrell Lane testified that he was presently employed by E. George Scofield Co. as a kettleman; that he commenced his employment with Scofield on August 13; that he had other employment prior to that as a ' The transcript is hereby corrected so that page 39, line 21, gill read, "$4 83 an hour as a helper " Page 40, line 21, substitute, "$4 83 for "$4 38." Y Respondent in its brief to the Trial Examiner included a motion to reopen the hearing to receive additional evidence regarding Lane's qualifications as a kettleman stating that this was a genuine issue in the case The General Counsel filed a statement in opposition I deny Respondent's motion as it had a full opportunity to present evidence at the hearing The proffered evidence is neither newly discovered nor was it otherwise unavailable Moreover, for the reasons explicated in this Decision the ultimate result would not be affected by the introduction of the proffered evidence 9 Hereafter, all dates will refer to the year 1969 unless otherwise specified " Art 3 of the collective -bargaining agreement introduced in evidence as G C Exh 2 provides that a kettleman's wages shall be $5 68 per hour commencing April 1,1969 It further provides as follows "Helpers may be employed when there is a shortage of journeyman at 85 percent of the journeyman scale for the job classification in which he works The helper classification applies to roofers, waterproofers, tile and slate roofers only A helper working as a kettleman shall receive kettle- man's wages "(Emphasis supplied) ' G C Exh 5 It was stipulated by Respondent Counsel that the check dated April 16 was actually issued on April 21 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kettleman; that he is classified as a helper by the Union but that during the 3 years of membership in the Union he has worked approximately 2 years as a kettleman; that he was employed on April 7 by Respondent after he met Millon Bosnick, Respondent's superintendent, and Ronald Nelson, Respondent's foreman, at a tavern. There were two other employees of Respondent present when Lane asked about a job and both Nelson and Bosnick told him to report to work on April 7 as they were short of kettlemen. At the time Lane went to work for Respondent, he believed that he would receive $5.68 per hour as a kettleman and not $4.83 per hour as a helper. He received his first paycheck from Respond- ent on April 11 and found that he was being paid at the rate of $4.83 per hour." When Lane received his paycheck, he tried to see Otlans who was not in. He then went to a tavern and saw Bosnick and told 'Bosnick that he received the wrong pay. According to Lane, Bosnick replied, "I know, I understand that. I know what you are receiving. You go in to see Mr. Otlans Monday morning." On Monday, April 14, Lane went in to see Otlans who told him to see him later, that he didn't have time to "fool with you now." Lane thereafter continued to work as a kettleman except for one day. When he received his second paycheck on April 18,' Lane noticed that he continued to receive helper's wages rather than kettleman's. Upon receipt of this check, Lane again went to see Otlans who told him that if he didn't like his paycheck to see Etherington. Accordingly, Lane did see Etherington on Monday, April 21. Thereafter, Lane accompanied Ether- ington to Otlans' office and received a check for the difference in wages as described above. Lane reported for work on Tuesday, April 22, and was not put to work. Lane testified that he took a cab and went to Fort Lewis, the jobsite where he had been working, and found that there was another man who was replacing him on the kettle." Lane contin- ued to report to work on the next day and again was not sent out to work. On Friday, April 25, Lane reported and received his paycheck for the work he performed from April 17.1 According to Lane's credited testimony, Bosnick gave him the check and told him he was fired. Lane asked him why he was fired but Bosnick refused to answer. Whereupon Lane said he was going to file an unfair labor practice claim against him. Bosnick replied, "Go ahead, I don't think you will." Lane went to see Otlans but was unable to talk to him as he was busy. He went out of Otlan's office and again met Bosnick. He again talked with Bosnick and Bosnick said that he knew how it was and how Lane felt but that Otlans was the boss. On cross-examination it was brought out that while Lane was on a certain job for Respondent hot asphalt was spilled on the pavement G C Exh 3 7GCExh4 " Lane testified that a Mr Strickland replaced him on the kettle Apparently , from additional testimony, there was no such man employed by Respondent However, whether Strickland or another employee replaced Lane is immaterial "G C Exh 6 and that there was a flash fire in the kettle on another occasion. It was established that these incidents occurred on April 11 and that thereafter Lane continued to be employed by Respondent as a kettleman. It was brought out also that Lane had worked for Respondent for a period of a month and a half in 1967 during which time he was employed as both helper and kettleman. Millon Bosnick, superintendent for Respondent, called as a witness,"' testified that Lane did complain to him about his wages on April 11 ' and that he told him to see Otlans. He acknowledged that on one occasion he told Lane "I know what you are getting, I know it is not right, you should talk to Mr. Otlans." Bosnick testified that he spoke to Otlans on several occasions concerning Lane and Otlans and he discussed various complaints about Lane's 'workmanship. Otlans told him that he didn't think Lane was qualified to run' a kettle at a kettleman wages. The Trial Examiner then asked Bosnick the following questions: Q. You mean he could be running the kettle but he shouldn't be getting the kettleman's wages? THE WITNESS: Absolutely. Q. That was what Mr. Otlans said? THE WITNESS: I think that was what he replied. On examination by Respondent's counsel, Bosnick testified that in his opinion Lane should not receive kettleman's wages because he "wasn't efficient enough. He didn't have the experience:" I do not credit Bosnick's testimony that he never told Lane he was fired 'or that he never gave Lane his paycheck. Neither do I credit Bosnick's statement that the reason Lane did not work was because Bosnick couldn't place him. Otlans, the president of Respondent and its principal stockholder, testified on direct examination that he never discharged Lane. On cross-examination, the General Counsel showed him a signed statement executed by Otlans on September 3. The statement contained the following paragraph: The last day Lane worked on April 17, 1969. He did not show up on the 18th or 21st. After that he showed up some mornings but I didn't pay any attention to him. He was terminated on the 18th, terminated himself by not coming to work. It is possible that this was the first day Lane missed. Francis E. Yost, a commerical roofing contractor, testified that he employed Lane in January as a helper; that Lane worked as a kettleman about 20 minutes for him and had burned $4,000 worth of machinery before he was taken off the kettle. Yost further testified that he told Otlans about the incident when he met Otlans in San Francisco in January. Mearle J. Wright, a roofing contractor, testified that he employed Lane as a helper and had removed him from the kettle after two days because he wasn't qualified. He' testified that Lane was employed by him during February. He further testified that he told Otlans about it on the day of "' Under Rule 43(b) under Rules of Civil Procedures for Federal District Courts VICTOR OTLANS ROOFING CO. the hearing. Additionally two foremen in the employ of Respondent testified that in their opinion Lane was not qualified as a kettleman. B. Analysis and Concluding Findings Essentially the General Counsel contends that Lane was discharged because of his complaint to the Union and his insistence that he receive kettleman's wages in accordance with the labor agreement for work as a kettleman. On the other hand, Respondent strenuously urges that Lane is not qualified as a kettleman and is not entitled to kettleman's wages even though he is placed on the kettle. Indeed Bosnick's testimony emphasizes the fact that Otlans would have continued to employ Lane in the capacity of a kettleman provided Lane did not receive the kettleman's wage scale. Viewing the contrasting arguments , it would appear that the primary dispute centers around an interpretation of the terms of the labor agreement. Respondent insists that, until a man is fully qualified as a journeyman kettleman, he should not receive -kettleman's wages despite the plain wording of the contract. Such a dispute, it would seem , could more properly be resolved by the arbitration machinery of the labor agreement . However, as I find that Lane was discharged because he complained to the Union and because the Union successfully intervened in Lane's behalf, more than a dispute of contract inter- pretation is involved. Etherington testified that the execu- tive secretary of the Association failed to communicate with him concerning Lane's grievance because of illness for about 2 months and as he did not wish to wait any longer he urged Lane to file a charge with the Board on behalf of the Union. At any rate, it is clear that under established Board principles a discharge of an employee because he seeks the help of his Union to redress a grievance is a 'violation of Section 8(a)(3) and (1)." The circumstances surrounding Lane's failure to secure further employment from Respondent either as a kettleman or as a helper permit no other conclusion than that Lane was discharged because of the Union's intervention and insistence that Lane receive kettleman's wages when employed as a kettleman. In short, I believe that Otlans in his sworn statement of September 3 revealed his true attitude toward Lane and that he discharged him on April 18 and thereafter ignored him. I also fully credit Lane's testimony that Bosnick told him on April 25 that he was fired. The qualifications of Lane and his competence are not a genuine issue in this case. Bosnick, Nelson, and Otlans knew from Lane's work record for Respondent and Yost's information that Lane was not a fully qualified journeyman kettleman. Nevertheless, Respondent con- tinued to employ Lane as a kettleman even after Lane spilled asphalt over a pavement and had a flash fire in the kettle. Indeed, as Bosnick testified, Lane would " Nu-Car Carvers, Inc , 88 NLRB 75, enfd 189 F 2d 756 (C A 3) cert. denied 342 U S 919, Halsey W Taylor Co , 342 F 2d 406 (C A 6) 901 have been retained as a kettleman provided he did not receive kettleman's wages. I conclude, therefore, that Lane's lack of experience and failure to meet the standards of a journeyman kettleman constitute pretextu- al afterthoughts to avoid the consequences of Respond- ent's unlawful conduct. Accordingly, it must be conclud- ed that Lane's employment was terminated because he insisted on receiving kettleman's wages. A discharge for this reason constitutes a violation of Section 8 (a)(3) and (1). I so find.12 Upon the basis of the foregoing findings of facts, and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent, by its discharge of Larrell Lane on April 18 and its failure to reinstate him thereafter because of his Union activity, engaged in conduct violative of Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, occurring in connection with the operations of Respond- ent described above, have a close, intimate, and substan- tial 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of -Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Larell Lane and thereafter refused to reinstate him, I shall recom- mend that Respondent offer him immediate and full reinstatement to his former job or to a substantially equivalent job, without prejudice to his seniority rights and privileges, and that Respondent make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him, by payment to Lane of a sum of money equal to that which normally he would have received as wages from April 18 until the day Respondent reinstates him, less any net earnings in the interim period. Backpay is to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, i2 George W Kennedy Construction Company , Inc , 172 NLRB No 196, Bowman Transportation , Incorporated, 134 NLRB 1419, enfd 314 F 2d 497 (C A 5) 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Issi s Plumbing & Heating Co , 138 NLRB 716 RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, I recommend that Victor Otlans Roofing Co , its officers, agents, suc- cessors, and assigns, shall I Cease and desist from (a) Discouraging membership and/or activity in United Slate, Tile & Composition Roofers, Damp & Waterproof Workers' Association, Local Union No 153, AFL-CIO, or in any other labor organization , by discharging any employee because he engaged in union activity, or by discriminating against any employee in any like or related manner in regard to hire or tenure of employment or any term or condition of employment (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act 2 Take the following affirmative action which it is found will effectuate the purpose of the Act (a) Offer to reinstate Larrell Lane to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and to make him whole in the manner described in "The Remedy" section of this Decision for any loss of earnings suffered by him by reason of the discrimination against him (b) Notify the above-named employee if presently serving the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act, as amended, after dis- charge from the Armed Forces (c) Preserve and, upon 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 Recommended Order (d) Post at its plant in Tacoma, Washington, copies of the attached notice marked ' Appendix"13 Copies of the said notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be main tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to '1 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 recommendations 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 In the event that the Board s 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 be changed to read Posted Pursuant to a Judgment of the United States Court of Appe ils Enforcing an Order of the National Labor Relations Board employees are customarily posted Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Recommended Order,'" what steps have been taken to comply herewith " In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 19 in writing within 10 days from the date of this Order what steps it has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in United Slate, Tile & Composition Roofers, Damp & Water proof Workers ' Association , Local Union No 153, AFL-CIO, or any other labor organization of our employees , by discharging any of our employees for their concerted or union activities , or in any like or related manner discriminating against them in regard to their hire or tenure , or any term or condition of employment WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self -organization, to form , join , or assist the above -named labor organization , or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities WE WILL offer Larrell Lane immediate and full reinstatement to his former or substantially equiva- lent job together with all the rights and privileges due him and make him whole for any loss of pay he may have suffered because of the discrimina- tion against him VICTOR OTLANS ROOFING CO (Employer) Dated By (Representative ) (Title) Note We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces VICTOR OTLANS ROOFING CO 903 This is an official notice and must not be defaced Any questions concerning this notice or compliance by anyone with its provisions may be directed to the Board's Office, This notice must remain posted for 60 consecutive 1511 Third Avenue, Republic Building, 10th Floor, Seat- days from the date of posting and must not be altered, tle, Washington 98101 Telephone 583-4532 defaced, or covered by any other material Copy with citationCopy as parenthetical citation