A C and S, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1972

196 N.L.R.B. 130 (N.L.R.B. 1972)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A C and S, Inc. and Eugene Bertrand. Case l8-CA-
3297
April 5, 1972
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On February 10, 1972, Trial Examiner Alba B.
Martin issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief.
Pursuant to the provisons 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section lO(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, A C and S, Inc., its officers, agents, suc-
cessors, and assigns shall take the action set forth in
the Trial Examiner's recommended Order.
I We agree Withthe Trial Exammer, for the reasons set forth by him, that
the Respondent was unlawfully motivated in selecting Bertrand for layoff
first and recalhng him last. In addiuon, however, we note that Bertrand was
the first Journeyman employed on the Job; hence, even If there were no
industry or area practice of laying off a steward last, it is most hkely that the
layoff would have occurred rn the order of seniority, in which event Bertrand
would have been the last laid off and the frrst recalled
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This case was heard in
Minneapolis, Minnesota, on December 9, 1971, pursuant to
a charge duly filed and served, I and a complaint Issued on
October 6, 1971. The issue litigated was whether a union
steward, Eugene Bertrand, was selected for layoff because
of his activit}' as a union steward, in violation of Section
8(a)(3) and (1) of the Act. After the hearing the General
Counsel and Respondent each filed short memoranda,
which have been duly considered.
Upon the entire record in the case and my observation of
the witnesses, I hereby make the following:
I Eugene Bertrand, an mdividual, filed the charge on August 9, 1971.
196 NLRB No. 22
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
A C and S, Inc., Respondent herein, is a Delaware corpo-
ration engaged in insulation contracting in several States
throughout the United States. Its I?rincipal office is in Lan-
caster, Pennsylvania. The insulation contracting involved
herein is in connection with a 57-story office building (the
IDS job) currently under construction III Minneapolis.Min-
nesota. During 1970, a representative period, Respondent
had gross revenues from its operations III excess 0[$50,000
and purchased goods and materials valued in excess of $50,
000 originating outside the respective States in which it
carried on its said operations. The complaint alleged, the
answer admitted, ana I find, that Respondent is now and
has been at all times material herein engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 34, AFL-CIO, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
In connection with its preparations to do the insulating
work on the IDS job, in the fall of 1970 high officials of
Respondent from ItS Chicago branch met with the Union's
business agent, Hugo Anderson, to discuss manpower. The
parties agreed that Respondent would obtain its employees
through the Union, and that Respondent would abide by
the Union's local trade agreement. In the early days of the
job Respondent agreed further with Anderson to permit the
employees to use the intercom "squawk box" to talk with
the Union's steward 2 on the job.
In April 1971 Superintendent Preschnik and Business
Agent Anderson agreed that at starting time at 8 a.m. the
men would be on tlie floors where they were working at the
Rang toolboxes. At that time the toolboxes were on the
'lower level" and on the ground floor.
Eugene Bertrand, a journeyman asbestos worker consid-
ered by Respondent to be one of the best workers on the job,
worked steadily for Respondent on the IDS job from April
1971 3 until his layoff on August 6, 1971. Early in his em-
ployment he served as a foreman for about 6 weeks until
Respondent's regular foreman, Donald Rutkowski from
Respondent's Cliicago branch, returned from an illness.
Bertrand was the first journeyman on the job. After a few
others were hired, the Union's business agent appointed
Bertrand the union steward.
Bertrand took his duties as union steward seriously, and
was VIgorous and outspoken in his efforts to uphold the
interests of the workers. On several subjects he took strong
positions counter to those of management, and on several
occasions, when provoked by Rutkowski's strong language,
Bertrand used strong language III return.
Shortly after Rutkowski returned in about May 1971,
Bertrand reported to the Union's business agent, Hugo An-
derson, that valves were being covered in a manner contrary
2 The local trade agreement was silent as to the presence of a Unionsteward
on the Job, but Respondent understood from this agreement about the mter-
com that the Union would have a steward on the Job.
3 Bertrand had worked for Respondent on other projects about SIX times
m the previous 10 to 15 years. He had worked for Respondent several days
on the IDS Job in November 1970
A C AND S, INC. 131
to the International Union's code of workmanship. Ander-
son went to the job and threatened to prefer charges with
the International Union against Rutkowski if tlie work
wasn't done right," As a result the work was redone. Rut-
kowski was irritated at Bertrand for "turning him in" to
Anderson.
Numerous times from May to August Bertrand took vig-
orous exception to Foreman Rutkowski's practice of loudly
"hollering' and "screaming" and cursing at the men in a
"hard way" over something. Disturbed at this treatment by
Rutkowski, the men asked Steward Bertrand to intercede
for them and he did so. He asked and told Rutkowski not
to shout and scream and curse at the men. After each en-
counter between Rutkowski and Bertrand, Foreman Rut-
kowski would send Bertrand to the basement of the building
to work alone away from the other men, for a while.
The "rules of the job" required that no man work alone
in a shaft, because of the danger involved. A man who had
worked alone in a shaft for a couple of days asked the
assistance of the steward. As Bertrand was going to the shaft
to speak to the man and learn his story, Foreman Rutkowski
saw him and wanted to know what he was doing away from
his duty post. Rutkowski then went with Bertrand to the
man in the shaft. In the colloquy Bertrand insisted that
another man be assigned in the shaft. Soon thereafter Rut-
kowski sent Bertrand to the basement.
On June 25 when one Ed Johnson and several others were
being laid off Rutkowski and his superior, Job Superintend-
ent Preschnik, were going to discharge Johnson for being
insubordinate with Rutkowski. Having talked with John-
son, Bertrand took the position that Rutkowski's harsh ap-
proach to Johnson had provoked Johnson and justified tile
latter's reply in kind. Bertrand called Business Agent An-
derson, who came and persuaded Preschnik and Rutkowski
just to lay Johnson off for lack of work and not to discharge
bim for insubordination.
Once when Bertrand was urging Job Sueerintendent
Preschnik not to layoff a man with a large family for whom
there was plenty of work, Preschnik told Bertrand that it
wasn't the job of the job steward to secure emeloyment.
Then as Bertrand was telling the man he couldn t save his
job for him, Rutkowski came up shouting loudly and asking
if this was another one of those work stoppages. Rutkowski
added that if Bertrand didn't like this job he knew where the
door was.
During the several days just preceding his layoff on Au-
gust 6, Bertrand strongly supported the men in a dispute
with Respondent over where the men should report for
work at tile starting time, 8 a.m. Sometime during this long
dispute Preschnik told Business A~ent Anderson that Ber-
trand was the only one who was ' pushing" this issue and
that the men didn't care about it. Anderson talked with
some of the men and found that what Preschnik said was
not true. Respondent expected the men to be on the floor
where they were working at starting time, as they always
had been on this job. Bertrand, and later Business Agent
Anderson, took the strong position that they should be re-
quired to be only on the ground floor ready to ride up on
the elevators. They based their arguments on the facts that
some of the men were then working as high as the 14th and
15th floors, that some of the men were older men and could
not be expected to walk up the stairs to where they then
worked, and that the men were at the elevators well before
8 a.m. and were held up in getting to their floors by too few
elevators for too many riders (including the other crafts then
working). At this time the Minneapolis Building Trades
4 Rutkowski was a member of the Intemational Union.
Council had decided that as all the trades were then working
too high at the building to walk up, that they should be at
the ground floor at 8 o'clock.
On Wednesday, August 4, Rutkowski "chewed out" and
"screeched" at an asbestos worker, Thomas McGlade,s for
not being at his duty post on the 14th floor at 8 a.m, Then
as McGfade was reporting the incident to Bertrand at the
latter's duty station, Rutkowski came in cursing, asked if
they were on another of their work stoppages, and threat-
ened to lay somebody off. Among other things Rutkowski
said he did not want the men to leave their duty posts to
come to see Bertrand. He said the men could call Bertrand
on the "squawk box." Bertrand protested that the men
wouldn't want to state their grievances over the "squawk
box" because Rutkowski listens in and then men wlio file
grievances get into all kinds of troublef Then Rutkowski
asked Bertrand the procedure for laying men off and how
much notice he had to give them. Several times he said he
was sick and tired of Bertrand. At the end Bertrand told
Rutkowski that they could not themselves settle the issue of
where the men should be at starting time, and that Bertrand
was going to a meeting of the executive board of the Union
that evening and would get its view on the question.
The following morning shortly before 8 o'clock Rutkow-
ski again shouted at the men for being on the ground floor
waiting for elevators instead of at their duty stations up in
the budding. Bertrand countered by threatening to prefer
charges against Rutkowski with the InternationalUnion for
working against the best interests of the trade by harassing
the men. Rutkowski replied that he had already beaten
Bertrand to the punch, but declined to elaborate. Later that
day Rutkowski went to where Bertrand was working and
told Bertrand he had made some "pretty hard threats down
there in front of the men." Then, and shortly again, Rut-
kowski sat nearby twice and stared at Bertrand for 15 min-
utes or so as the latter was working.
After work that Thursday, the day before the layoff, Rut-
kowski and the Union had a meeting and a long discussion
on the issue of where the men should be at starting time.
Respondent was represented by Branch Manager Hoover,
Job Superintendent Preschmk, Foreman Rutkowski, The
Union was represented by Business Agent Anderson and
Steward Bertrand. No resolution of the issue was reached
at this meeting, although a solution was reached the follow-
ing week after Bertrand's layoff. Preschnik testified that this
meeting was triggered by Bertrand, and that on this day or
the day before Preschnik told Anderson that Bertrand was
agitating the men on this issue. At this meeting the partici-
pants discussed Rutkowski's harassment of tile men, and
also the fact that sometimes Preschnik and Rutkowski gave
contradictory orders to the men. At the end of the meeting
Preschnik told Business Agent Anderson that the Company
would be laying off some men the following day but he
didn't know who they would be.
On Friday, August 6; Respondent laid off 5 employees,
4 journeymen and one apprentice, from among the 13-15
employees on the job. The first to be laid off was the stew-
ard, Bertrand, whereas the area practice, known to Respon-
dent, was that the steward would be laid off last. Rutkowski
laid off Bertrand about 9:30 that morning, and told him to
5 The transcnpt of the heanng erroneously shows this name as "McClaud."
Wherever "McClaud" appears, It IS hereby corrected to "McGlade."
6 The fact that the men and Bertrand sometimes left therr duty posts to
dISCUSS gnevances did not make their actrvity unprotected. Respondent could
have taken this matter up WIthAnderson, WIthwhom the use of the intercom
had been arranged In any case Respondent never contended It selected
Bertrand for layoff because he or the men sometimes left their duty posts to
dISCUSS gnevances.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave the job then although he would pay him for the rest
of the day. The other four were laid off near the end of their
day's work that afternoon.
When Business Agent Anderson phoned Job Supenn-
tendent Preschnik shortly after Bertrand's layoff, Preschnik
gave him as the reason for Bertrand's layoff that there was
no work for him in the area of the building where he was
working, and that transferring him elsewhere in the building
would nave involved too much paperwork. Anderson,
whose experience qualified him to Know, credibly testified
that very little paperwork, only about 5 minutes' worth,
would have been involved. During this conversation Presch-
nik also told Anderson that there would probably be some
more layoffs later in the day, but he didn't know yet who
they would be.
Respondent recalled two of the laid-off employees on
August 17, two more on August 23, and didn't recall Ber-
trand until September 20. It recalled them all through the
Union. When Preschnik called Business Agent Anderson
for men about August 16, and Anderson suggested Presch-
nik take back Bertrand, Preschnik reI' lied that he didn't
want Bertrand "because of all the trouble ... he's a good
worker but if he could keep his mouth shut I would take him
back."
When Preschnik called Anderson for more men a few
days later and Anderson again suggested Bertrand, Presch-
nik replied that he was not taking'Bertrand back, on orders
from Respondent's home office, because Bertrand had filed
the charge herein.
Before Respondent rehired Bertrand on September 10 it
had hired 15 employees for the IDS job after the August 6
layoffs, most of whom were new to that job. When he re-
hired Bertrand on September 20, Preschnik required as a
condition of his returning that Bertrand could not be the
union steward. In the interest of getting Bertrand back to
work, Business Agent Anderson agreed to this condition.
Bertrand has continued to work for Respondent since Sep-
tember 20, 1971, but not as steward.
Conclusions: The layoffs of August 6 were for business
reasons: because Respondent was temporarily out of work
for the men in the area where they were workmg,7 and
because Respondent was temporarily out of the proper ma-
terial for them to work with. At that time Job Superintend-
ent Preschnik told Business Agent Anderson that he
expected to recall most of those laid off. The only issue
presented herein is whether Bertrand was selected for layoff
first and rehired last (after constant insistence by Anderson)
because of his activities as union steward. Upon considera-
tion of the entire record I conclude that this was the case.
The practice in the industry, as well as in most of the
building trades, was that the steward was laid off last. ThIS
certainly was known to Job Superintendent Preschnik and
Foreman Rutkowski, who were part of Respondent's cadre
that went from city to city and "helped manage jobs. Also,
Rutkowski surely Knew this as a member of the Internation-
al Union and Preschnik testified that he discussed with
Rutkowski whom to layoff.
If Rutkowski had followed the industry and area practice
Bertrand would not have been laid off at all in this layoff,
for on this occasion Respondent laid off only 5 out of 13-15
7 I credit Respondent's testimony 10 this regard. although the General
Counsel showed that in one mstance It was not true. McGlade was one of
those laid off August 6. On the next workday an apprentice used the same
ladder McGlade had used and contmued working at the very same work
McGlade had been performing when he was laid off.
employees. It ignored industry and area practice and laid
off the steward at the time that the starting place issue was
at its peak and was not resolved; an act which strongly
suggests that Respondent's motive in selecting the steward
was to weaken the Union's resolve and weaken the Union's
bargainmg position on this Issue and to affect the results
thereof.
By his activities as steward and the strong positions he
took and maintained as steward on behalf of the employees,
WhICh was protected activity under the Act, Bertrand irritat-
ed Rutkowski. But Bertrand was simply reflecting the re-
action of the men to Rutkowski's constant approach to
them, In Anderson's language, Rutkowski "shouted first
and asked questions later." The men clearly would not
stand for the way Rutkowski, an outsider from Chicago in
their view, addressed himself to them and treated them. As
steward Bertrand tried to make Rutkowski see the error of
his approach.
Bertrand was the first one laid off on August 6 even
though he was one of the two union representatives at the
meeting with management late the preVIOUS afternoon on
the starting place Issue, at which time Respondent said
nothing about laying him off first. When Rutkwoski laid off
Bertrand the following morning he gave him no reason for
having him leave the job then while paying him for the rest
of the day. Preschnik told Anderson he didn't transfer Ber-
trand to somewhere else on the job because of the paper-
work involved. In his pretrial affidavit Preschnik denied he
told Anderson this, although in hIS testimony he admitted
he told Anderson this. OnTy 5 minutes of paperwork was
involved in making the transfer.
The record established that Preschmk considered that
Bertrand was the only employee who was "pushing" the
starting place issue, the Issue then pending and at its peak
between management and the Union. Preschnik admitted
that he told Anderson that Bertrand was "agitating" the
men on that issue. Thereafter Preschnik told Anderson he
did not want Bertrand back "because of all the trouble," but
that he would take him back "if he could keep his mouth
shut." Finally, and conclusively, when Respondent did take
Bertrand back, Respondent insisted that he could not be the
union steward.
Upon the above facts and considerations, and upon the
entire record considered as a whole, I conclude that Ber-
trand was selected as the first employee to be laid off be-
cause of his activities as the union steward, Respondent
thereby discriminating in regard to tenure of employment
to weaken the Union's bargaining position on this Issue and
other grievances, Respondent thereby discouraging mem-
bership and activity m the Union, and thereby VIolating
Section 8(a)(3) and (I) of the Act.
CoNCLUSIONS OF LAW
1. A C and S, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 34, AFL-CIO, is a labor
organization WIthin the meanIng of Section 2(5) of the Act.
3. By discriminatorily laying off Eugene Bertrand on Au-
gust 6, 1971, because of his protected activitr as a union
steward and to weaken the Union's bargaining position,
thereby discouraging membership and activity in the Un-
ion, Respondent violated Section 8(a)(3) and (I) of the Act.
4. The aforesaid labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
A C AND S, INC. 133
REMEDY
In order to effectuate the policies of the Act, I recom-
mend the customary broad cease-and-desist order and the
affirmative relief conventionally ordered in cases of this
nature, where Respondent's unfair labor practices were of
a character which struck at the roots of employee rights
safeguarded by the Act.
To remedy Its discriminatory layoff of Eugene Bertrand
Respondent will be re'luired to pay Bertrand backpay for
the period that he was aid off, from August 6, 1911, until
September 20, 1971, and to wnte to Bertrand and to the
Union that it has no objections to the Union's appointing
Bertrand as job steward on the IDS job or any other of
Respondent's jobs. Bertrand's backpay, less net interim
earnings, plus interest at 6 percent per annum, shall be
computed as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section lO(c)
of the Act, I hereby issue the following recommended.!
tained by it for 60 consecutive days thereafter, m conspic-
uous places, including Its Job office, on or near all gang
toolboxes, and including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered;
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith."
10 In the event that this recommended Order IS adopted by the Board after
exceptions have been frled, this prOVISIon shall be modified to read. "Notify
the Regional Director for Region 18, In wntmg, Within20 days from the date
of this Order, what steps the Respondent 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 pay to Eugene Bertrand backfay for the
penod he was laid off, August 6, 1971, unti September
20, 1971, in accordance with the recommendations of
the Trial Examiner's DeCISIon.
WE WILL notify Eugene Bertrand and the Union, in
Wr!tlI~g, that we have. no objection to the Union's ap-
pomtmg Bertrand as Job steward on the IDS job or on
any other of our Jobs.
WEWILL NOT discriminatonly layoff or discharge any
employee because of his union membership and activi-
ty and to weaken any Union's bargai!1ing po~ition, to
discourage membership and activity in a Union.
~EWILL NOT m any other manner interfere with, re-
strain, or coerce our employees m the exercise of the
nght to self-organization, to form labor organizations,
to Jom or assist International Association of Heat and
Frost Insulators and Asbestos Workers, Local No. 34,
AFL-CIO, or any other labor organization, to bargain
~ollectIvelythrough representatives of their own choos-
mg, and to engag~ in other concerted activities for the
purpose of collective bargammg or other mutual aid or
protection, or to refrain from any and all such activity,
except to the extent that such nghts may be affected by
an !lgreement requiring membership m a labor organI-
zation as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as amended.
All our employees are free to become, or to refrain from
becoming, members of any labor organization.
A C AND S, INC
(Employer)
ORDER
Respondent, A C and S, Inc., of Lancaster, Pennsylvania,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discriminatorily discharging employees because of
their protected union affiliation and activity and to weaken
the Union's bargaining position, to discourage union mem-
bership and activity.
(bjIn ~ny other manner interfer!ng with, restraining, or
coercing Its employees m the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action, which I fmd will
effectuate the policies of the Act:
.(a) Pay Eugene Bertrand backpay for the period he was
laid off, August 6, 1971, to September 20,1911, in the man-
ner prescribed in the portion of the Trial Examiner's Deci-
sion entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or Its .agents, for examination and c?pymg, all payroll
records, SOCIal secunty payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Write to Eugene Bertrand and to the Union, that it has
no objection to the Union's appointing Bertrand as job
steward on the IDS job or any other of Respondent's Jobs.
(d) Post at its IDS job in Minneapolis, Minnesota, copies
of t~e attached notice marked "Appendix."? Copies of said
notice, on forms provided by Hie Regional Director for
Region 18 (Minneap?hs, Mi1?-nesota), after bemg duly
SIgned by .R~spond.ent s authonze~ representative, shall be
posted by It immediately upon receipt thereof, and be main- Dated By
(Representative) (Title)
8 In the event no exceptions are filed as provided by Sec. 10246 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.
9 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 Relauons Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the Nauonal Labor Relations Board."
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of postmg and must not be altered, defaced,
or.covered by any ot~er mat.en~l.Any questions concerning
this notice or comphance WIthItS prOVISIOns may be direct-
ed to the Board's Office, 316 Federal Building, 1I0 South
Fourth Street, Minneapolis, Minnesota 55401, Telephone
612-725-2611.