Baumann Construction Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 556 (N.L.R.B. 1970)

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George E . Baumann , d/b/a Baumann Construction
Co. and Heavy Construction Laborers Local No.
663, affiliated with International Hod Carriers,
Building and Common Laborers , AFL-CIO. Case
17-CA-3933
March 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 6, 1969, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Respondent filed timely
exceptions to the Trial Examiner's Decision and a
brief in support thereof.
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 connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
MEMBER BROWN, dissenting:
Although I share the Trial Examiner's musing
concerning the invocation of the Act's processes to
this case, I disagree with the majority's approval of
his disposition of the matter. Employee Wyckoff
violated Respondent's instructions respecting the use
of trucks, whereupon Respondent advised Wyckoff
he would be penalized a day's pay for the
dereliction. When Wyckoff protested the penalty,
Respondent gave Wyckoff the option of either
accepting the discipline or of being paid the day's
pay and being discharged. Respondent could have
given Wyckoff the option at the outset without
violating the Act, and in my opinion the fact that
the option was given afterwards does not convert
Respondent's conduct to an unfair labor practice.
The alternative penalties stemmed from misuse of
trucks, not for pursuing statutory rights, and in my
opinion there is no substantial evidence in the record
which otherwise warrants a finding that Wyckoff
was required to forfeit his right to grieve about the
imposition of a penalty.
I would dismiss the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner: This case, heard
at Nevada, Missouri, on October 2, 1969, presents the
question whether Respondent unlawfully discharged an
employee in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. Upon the
entire record, including my observation of the witnesses,
and after due consideration of the briefs filed by each of
the parties, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, George E.
Baumann , d/b/a Baumann Construction Co.,
Nevada, Missouri , his officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
We are not prepared to say , as is our dissenting colleague, that had
Wyckoff at the outset been given the option with which he eventually was
confronted , no violation of the Act would have been involved . As shown by
the record , the choices afforded Wyckoff were disciplinary penalties
differing quite substantially in degree And , quite clearly, to the lesser
penalty was attached the further provision that it be accepted without
protest In short , the alternatives given Wyckoff were either to take the
more drastic penalty or to accept the lesser one but with a forfeiture of his
right to grieve about it It might well be argued that imposition of such
alternatives , without more , unlawfully interferes with employee rights to
grieve about the administration of a collective -bargaining contract But we
need not decide that question here, for in any event the Trial Examiner in
effect has found , and we agree , that the formulation of the alternatives in
this case was the result of, and in reprisal for , Wyckoff's attempt to
present a protest concerning the disciplinary penalty originally imposed
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an individual engaged in Nevada as a
general contractor in the building and construction
industry under the name of George Baumann General
Contractor, commonly called Baumann Construction Co
Likewise as an individual Respondent operates a concern
known as Nevada Redi-Mix Co., engaged in the sale and
delivery of ready-mix concrete. Respondent personally
determines the labor policies of both the construction
business and the concrete business, which are located in
adjacent buildings. Employees are moved at his discretion
and direction from one business to the other, and
employees ostensibly in the concrete operation are paid by
checks drawn by Geo. E. Baumann General Contractor,
although their paychecks bear a notation "Project
Redi-Mix." Baumann testified that he did not maintain
separate checking accounts for the two concerns, but that
periodically Redi-Mix reimbursed the construction
company for all labor costs. I find that for purposes of the
Act Respondent as an individual operates a single
integrated enterprise. See A. M Andrews Company of
Oregon v. N.L R B, 236 F.2d 44 (C.A 9); N.L R B v.
A. E. Nettleton Co., 241 F.2d 130, 131 (C.A. 2); Manley
Transfer Co v. N.L.R B, 390 F.2d 777 (C.A. 8).
181 NLRB No. 80
BAUMANN CONSTRUCTION CO. 557
Respondent is a member of the Builders' Association of
Kansas City, herein called the Association, a
multiemployer association composed of builders and
suppliers, whose members annually perform services
valued in excess of $50,000 for customers outside the
State in which their respective businesses are located and
annually purchase materials and supplies valued in excess
of $50,000 from suppliers outside the State in which the
members' respective businesses are located. In the year
preceding the hearing Respondent had a contract in excess
of $1,500,000 for the construction of low rental units in
Clinton, Missouri, which was Federally subsidized. At the
time of the hearing Respondent was general contractor in
the construction of a factory for the Minnesota Mining
and Manufacturing Company, at a cost of over
$1,500,000. I find that Respondent is an employer
engaged in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act. See N L R.B.
v Cascade Employers' Assn , Inc., 296 F.2d 48 (C A. 9),
Carpenters. Local 1839 (Gilbert Kroeter), 160 NLRB 1.
The Charging Party, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the
Act It has a collective-bargaining agreement with the
Association, applicable to Respondent's employees, which
deals with their wages and other terms and conditions of
employment.
ii. THE UNFAIR LABOR PRACTICE
A The Discharge of Willard Wyckoff
On Tuesday afternoon, April 1, 1969, employee Willard
Wyckoff, a driver in Respondent's employ, used a large
ready-mix truck to deliver a small load of concrete
Respondent learned during the course of the afternoon
that Wyckoff had used the large truck, and promptly
informed Wyckoff's foreman, Earl Thomas, that neither
Wyckoff nor Thomas would be paid for that day's work,
as use of the large truck for such a load was in
contravention of Respondent's orders. Thomas gave
Wyckoff the message later that day. Wyckoff apprised his
union representative , Robert Cargill, who advised him
that in all probability Respondent would not carry out the
threat, but that Wyckoff should get in touch with Cargill
if his pay was docked. On the following Friday, April 4,
Wyckoff received his paycheck for the week ending April
3, and he found that he had not been paid for l day He
notified Cargill that evening, and Cargill agreed that he
would accompany Wyckoff to Respondent's office the
next workday, Monday, April 7.
Early Monday morning, shortly after Wyckoff reported
for work, Cargill appeared at the plant, and he and
Wyckoff went to Baumann 's office, where Cargill stated
that they had come to collect the day's pay that Baumann
owed Wyckoff Baumann responded to the effect that
Wyckoff could either forfeit the day's pay, or he could
take the pay and look for another job. Wyckoff declared
that he intended to be paid for work he had performed.
Baumann instructed his secretary to make out Wyckoff's
check Cargill advised Baumann that Wyckoff was also
entitled under the contract to "show-up time" for that
Monday morning . At this point the testimony is in
conflict, for, according to Cargill and Wyckoff, Baumann
then told his secretary to reduce the check to one-half
day's pay, whereas Baumann testified that he replied that
"show-up" time was not due because Wyckoff was not
' The name is misspelled throughout the transcript as Wykoff.
"where he is supposed to be." Cargill and Wyckoff
thereupon left, with Cargill remarking that they would
have to take other measures, and Baumann responding
that he would keep Cargill off the property. According to
Respondent, a check for 2 days' pay (encompassing pay
for the withheld day and for Friday, April 4, the first day
of the pay period) was prepared for Wyckoff at that time,
but he did not pick it up at that time or at any time
thereafter. Two days later, at noon on Wednesday, April
9, Wyckoff started work for another employer. He
testified that from that point on he did not desire, and
would not have accepted, reinstatement with Respondent
B Concluding Findings
Certain aspects of this litigation remain shrouded in
mystery, not the least of which is why the parties hereto
have found it necessary to press this case through the
Federal administrative, and possibly judicial, machinery
when all that is at stake is whether Wyckoff should be
paid for the 2 1/2 days between his leaving Respondent's
employ and his starting work elsewhere. I have already
adverted to the conflict in testimony as to whether
Baumann, when pressed for the call-in pay, actually
ordered his secretary to reduce the compensation to be
paid Wyckoff. Closely related to that conflict is the
curious circumstance that Respondent introduced into
evidence a check to Wyckoff for 2 days' pay which was
ostensibly drawn on the fateful Monday, April 7, as
indeed Baumann and his son, who was present at the
interview, both testified. I call this a "curious
circumstance" for if such a check was in fact written at
the time it is difficult to account for Wyckoff's failure to
pick it up, as all agreed that he was insisting that he be
paid, and left the Company's employ because of that
insistence. This tends to support the testimony of Wyckoff
and Cargill that all Baumann offered at the time was
one-half day's pay, and that he reduced his initial offer
when Cargill referred to the call-in pay. I am reluctant to
find, however, that Respondent went to the length of
fabricating or predating the check introduced into
evidence in this proceeding, and as appears below I find it
unnecessary in deciding this case to reach such a
conclusion. My disposition of this matter also renders it
unnecessary to resolve the credibility issue as to whether
Respondent upon hearing the demand for call-in pay
reduced the amount he was ready to pay Wyckoff.
Whatever other uncertainties remain , the record is clear
that if Wyckoff had accepted the docking of a day's pay,
he would not have been discharged. Indeed, the idea of
discharging Wyckoff did not occur to Respondent until
Wyckoff had the temerity to appear with his union
representative to claim the sum due him, pursuant to
union contract, for the withheld day's pay. Baumann's
testimony that on April I he told Foreman Thomas that
Thomas and Wyckoff would either be docked or
discharged is not credited, for Thomas, a witness for
Respondent, did not recall Baumann 's expressing any such
alternative, and did not repeat it to Wyckoff, which would
have been normal had Baumann in fact said anything of
the kind 2 Thomas did remember that Baumann said that
he could fire them if they did not obey orders, but this is
quite different from making the "fine" an alternative to
immediate discharge. This is not to say that Baumann
could not lawfully have discharged Wyckoff for his taking
'Far from planning to discharge Wyckoff, Baumann by his own
testimony regarded Wyckoff as an unusually good employee
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the large truck; so far as this statute is concerned, a
discharge for that reason would have been lawful. Also
Baumann could withhold the day's pay for that
transgression without committing an unfair labor practice,
although his action in so doing may have been in breach
of contract or in other respects may have contravened
Missouri law. But all that is before me on this record is
whether Baumann could lawfully discharge Wyckoff for
asserting a wage claim arising out of work performed
subject to a collective-bargaining agreement.'
General Counsel suggests that Baumann discharged
Wyckoff because the latter asserted his claim through a
union representative If this be true, the discharge plainly
violated Section 8(a)(3). Baumann 's testimony (and on
this matter I am inclined to believe him) is that he would
have reacted the same had Wyckoff been unaccompanied.
But even accepting Respondent's version, Wyckoff's
discharge resulted from his pressing a claim for wages due
him under a collective agreement.
The law is well settled that an employee who asserts a
claim pursuant to a collective agreement is engaged in
furtherance of the same concerted activity which resulted
in the making of the agreement. Circuit Judge Lay has so
thoroughly canvassed this matter in his dissenting opinion
in Illinois Ruan Transport Co v N.L R.B., 404 F 2d 274,
284-290 (C.A. 8),' that any further discussion on my part
would be supererogatory. See also A S Hubbs
Contracting, 163 NLRB 292, 296, and cases there cited at
footnote 5. It follows that Respondent's discharge of
Wyckoff for asserting his wage claim violated Section
8(a)(1) of the Act,, and, as in Hubbs, it is unnecessary to
decide whether the discharge also violated Section 8(a)(3)
CONCLUSIONS OF LAW
By discharging Wyckoff for asserting a claim for wages
due him under a contract between Respondent and
Wyckoff's union , Respondent engaged in an unfair labor
practice affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act
THE REMEDY
I shall recommend an order directing Respondent to
cease and desist from its unfair labor practices, to make
Wyckoff whole for losses he sustained as a result of the
unlawful discharge, and to post an appropriate notice. The
sum due Wyckoff under this Recommended Order is for
losses he sustained from Monday, April 7, until
Wednesday noon, April 9, as a result of the unlawful
discharge. Interest should be paid thereon as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716. It is my
understanding that Respondent admits being indebted to
Wyckoff for wages earned by him on April 1 and 4, but
'Baumann never denied that the collective -bargaining agreement covered
Wyckoff When pressed for the call-in pay, Baumann according to his own
testimony did not claim that the contract did, not apply to Wyckoff but
only that Wyckoff was not entitled to the call -in pay because he had not in
fact reported for work
'The majority opinion did not take issue with Judge Lay's views in this
regard but instead assumed , without deciding , that the activity was
concerted , and then held that the discharge was for cause rather than for
the concerted activity A similar result would follow here if Wyckoff had
been discharged for violating the rule in using the large truck As found
above, however, the discharge was for pressing the wage claim and not for
violating the rule
'Wyckoff in pressing his own wage claim was also establishing the
principle on behalf of all employees under the contract that they were
entitled to compensation for work performed.
such indebtedness does not arise out of the unfair labor
practice.
Accordingly, upon the foregoing findings and
conclusions, and upon the entire record, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent George E. Baumann, his agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for seeking benefits due under the terms of a
collective-bargaining agreement
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Willard Wyckoff whole, in the manner set
forth in the portion of the Trial Examiner's Decision
entitled "The Remedy," for losses sustained as a result of
his discharge on April 7, 1969
(b) Post at Respondent's premises in Nevada, Missouri,
copies of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent shall be posted by him immediately upon
receipt thereof, and be maintained by him 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 said notices are not altered,
defaced, or covered by any other material.,
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'In the event no exceptions are filed as provided by Section 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 Section 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 Appeals Enforcing
an Order of the National Labor Relations Board "
'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 17, in writing , within 10 days from the date of this Order, what
steps 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 Willard Wyckoff for wages he lost as a
result of his discharge on April 7, 1969.
WE WILL NOT discharge or otherwise discriminate
against an employee for seeking benefits under the
provisions of a collective-bargaining agreement
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employee in the exercise of
their rights under Section 7 of the National Labor
BAUMANN CONSTRUCTION CO. 559
Relations Act to form , join , or assist labor
organizations , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
GEORGE E BAUMANN, AN
INDIVIDUAL D/B/A
GEORGE BAUMANN
GENERAL CONTRACTOR
(Employer)
Dated By
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 posting and must not be altered , defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board ' s Office,
610 Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181.
GEORGE E. BAUMANN