CER, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1984

269 N.L.R.B. 1070 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CER, Inc. and Frank L. Vernagallo. Case 23-CA-
9018
19 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 18 July 1983 Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, CER, Inc.,
Houston, Texas, its officers, agents, successors, and
assigns shall take the action set forth in the Order.
t The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Additionally, we are satisfied that the Respondent's contention that the
judge should be disqualified is without merit. In our opinion, there is
nothing in the record to suggest that his conduct at the hearing, his reso-
lutions or credibility, or the inferences he drew were based on either bias
or prejudice.
Members Zimmerman and Dennis find it unnecessary to determine
which labor agreement was in effect as Vernagallo's work assignment
claims were made in good faith and were colorable under either of the
contracts arguably in effect.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in Houston, Texas, on April
20-21, 1983, pursuant to the September 29, 1982 com-
plaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 23 of the Board. The complaint is based on a
charge filed August 12, 1982, by Frank L. Vernagallo
(Vernagallo or Charging Party) against CER, Inc. (Re-
spondent or CER). '
I All dates are for 1982 unless otherwise indicated. Although the
charge and complaint placed periods in CER's name, I have spelled it as
shown to conform to the spelling used by Respondent.
269 NLRB No. 184
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act on June 17,
18, and 19, 1982, when General Foreman Curtis Roberts
threatened employees with discharge for complaining to
their union (Local 450, and fully identified momentarily)
about working conditions on the job, and by discharging
Vernagallo on June 24, 1982, because of the Charging
Party's protected concerted activities relating to com-
plaints about working conditions.2
By its answer, as amended, Respondent admits certain
factual matters, denies violating the Act, and asserts that
Vernagallo quit.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
CER, a Texas corporation, performs site preparation
excavation and soil stabilization in the building and con-
struction industry. At all times material herein CER has
been performing such work at a construction site in
Houston, Texas, involving an expansion of the Anheuser-
Busch brewery. During the past 12 months CER has
performed services valued in excess of $50,000 for H. K.
Ferguson Co., of Cleveland, Ohio, an enterprise which is
directly engaged in interstate commerce and which
meets the Board's nonretail jurisdictional standard by
virtue of performing building and construction services
valued in excess of $50,000 in several States of the
United States. Respondent admits, and I find, that it is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International
Union of Operating Engineers, AFL-CIO, Local Union
No. 450 (Union or Local 450), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
1. The motion to disqualify
At the beginning of the hearing Respondent, pursuant
to Section 102.37 of the Board's Rules and Regulations,
filed its motion and affidavit that I disqualify myself
from presiding as the administrative law judge in this
proceeding. Essentially the matter is based on two
grounds. First, that I had served on the staff of NLRB
Region 23 for several years during which time I was op-
posing counsel to Respondent's counsel (including the
law firm, Fulbright & Jaworski) here, and second, I re-
cently presided at a hearing involving Local 450 in
which Curtis Roberts testified. CER anticipated that
Roberts would be its primary witness here.
I Vernagallo's first day on the job was June 8, 1982 (Tr. 257).
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CER, INC.
Respondent did not argue in its motion or at the hear-
ing that in serving as opposing counsel I ever displayed
hostility or personal animus toward Respondent's counsel
or the firm of Fulbright & Jaworski. I denied this ground
of the motion and its additional argument that my former
association with Region 23, which I left in April 1980 on
my appointment as an administrative law judge,3 would
somehow render me biased or give an appearance of im-
propriety. Former service as an attorney for the General
Counsel, at least in the absence of evidence indicating a
personal bias, does not disqualify an administrative law
judge from presiding over a case. Heads d Threads Co.,
261 NLRB 800 fn. 1 (1982). Bare conclusionary state-
ments are insufficient. Garry Mfg. Co., 242 NLRB 539 fn.
1 (1979). Regarding the second ground of an earlier case
involving Curtis Roberts, I note that such earlier case
with Local 450 involved allegations of backdooring by
that labor organization.4 Roberts allegedly received fa-
vored referrals by Local 450. Although I found merit to
one such allegation, I dismissed at least five similar alle-
gations. My findings generally were based on hiring hall
records rather than on any assessment of Roberts' credi-
bility. I adhere to my denial of the motion as to this
ground, and I reaffirm my ruling at the hearing denying
the motion in its entirety. (Tr. 19.)
2. The applicable work rules
H. K. Ferguson Co. is the general contractor for the
expansion project on the Anheuser-Busch brewery in
Houston, Texas, and CER is a subcontractor performing
site preparation work (Tr. 126, 430). Robert Kaiser,
president of CER, testified that CER is signatory to a
certain collective-bargaining agreement (G.C. Exh. 2)
with the Houston Chapter of the Associated General
Contractors of America, Inc. (AGC) and the Construc-
tion Employers' Association of Texas (CEA). He also
testified that CER is signatory to a certain project
Agreement (R. Exh. 2) covering construction of the ex-
pansion (Tr. 429).
The AGC contract contains many work rules typical
in such contracts, such as a ratio of operators to fore-
men, the requirement of a shelter in which the operators
can change clothes, repairs to be done by operators
(rather than foremen), and the like. However, it can be
argued that the "Project Agreement" (PA) is the con-
trolling agreement for the expansion project, and that
substantially all the usual work rules contained in the
AGC contract are not applicable under the general pro-
visions of the PA.
A conference was held at the jobsite on June 18, 1982,
between Charles D. "Junior" Taylor, CER's vice presi-
dent, Operator General Foreman Curtis Roberts, Ty
Bloodworth, president of Local 450, and Mike Tolopka,
job steward for Local 450.5 From the credited testimony
s My first appointment was with another agency, and in July 1980 1
was appointed as an administrative law judge with the Board.
4 Operating Engineers Local 450 (Houston Chapter. AGC), Case 23-CB-
2557-1-2. My decision issued in that case on December 10, 1982, as JD-
(ATL)-104-82.
6 Of those in attendance at the meeting, only Tolopka testified. Be-
cause of his convincing demeanor, I credit Tolopka.
of Mike Tolopka, the job steward for Local 450, I find
that at the conference Vice President Taylor agreed with
Bloodworth that CER would work under that agreement
(Tr. 64, 70).
The relevance of whether CER adopted the work
rules of the AGC contract is that it is the AGC contract,
not the PA, which provides the contractual basis on
which the General Counsel relies in arguing that Verna-
gallo was terminated in violation of Section 8(a)(l) of the
Act. In view of the foregoing finding, I need not reach
the issue of whether a mistaken belief by Vernagallo that
the work rules of the AGC contract applied to the job
would serve to protect his effort to enforce such work
rules under Interboro Contractors, 157 NLRB 1295 (1966),
enfd. 388 F.2d 495 (2d Cir. 1967).
3. Vernagallo seeks to enforce the work rules
Based on the uncontradicted and credible testimony of
the General Counsel's witness, it is clear that Charging
Party Vernagallo vigorously sought to enforce union
work rules in an effort to have General Foreman Curtis
Roberts cease his practice of frequently performing craft
work, and also in order to protect such craft work from
the laborers. Vernagallo's enforcement efforts generally
were addressed to Mike Tolopka, the job steward, but on
one occasion, June 11, 1982, he and Tolopka visited with
Local 450's president, Ty Bloodworth, and registered
their complaints in person.8
Vernagallo did not serve on the job in any official
union capacity, such as alternate steward, but acted, as
Tolopka testified, as a member of Local 450 (Tr. 113).
Vernagallo testified, "When it comes to protecting our
work, every man on the job is a steward." (Tr. 400, 418.)
Although Vernagallo, prior to his termination, never
protested by telephone to Bloodworth or any other offi-
cial at Local 450 concerning Roberts, it is clear that
Roberts viewed Vernagallo as a principal source of agi-
tation in that respect on the project.
B. Threats by General Foreman Curtis Roberts
I. Complaint paragraphs 9(a) and (b)
Complaint paragraph 9(a) alleges that on or about
June 17 Roberts "informed assembled employees that he
had learned one of them had been calling officials at the
hall of the Union and complaining about conditions on
the job."
Complaint paragraph 9(b) alleges that on or about
June 17 Roberts "informed assembled employees that he
While naming witnesses I perhaps should note that the General Coun-
sel called Tolopka; Mike Shuttlesworth, an oiler-apprentice; Robert R.
Culver, an operator from Indianapolis, Indiana, working as a traveler out
of Local 450; and operator Frank Vernagallo, the Charging Party. CER
called Robert Kaiser, its president, who gave some brief testimony. The
Charging Party had no witnesses. Curtis Roberts did not testify. Kasier
testified that Roberts had been terminated and is hostile to both CER and
the general contractor, H. K. Ferguson Co. (Tr. 432, 438-439). There is
some debate in the record concerning the nature of Roberts' departure,
but I need not address that subject.
6 During the 2-1/2 weeks Tolopka was on the job, he telephoned
Bloodworth several times and visited the latter at his home three times to
protest violations by General Foreman Roberts (Tr. 50).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would terminate the individual who he ascertained was
engaging in the conduct referred to" in paragraph 9(a).
The credible and uncontradicted testimony of oiler
Mike Shuttlesworth (Tr. 138, 191-193) and Operator
Robert R. Culver (Tr. 239-240) established that Roberts
made the statements described in the foregoing allega-
tions. Indeed, Respondent's initial answer, submitted on
CER's letterhead by President Kasier, and dated October
21, 1982, admits complaint paragraph 9(a) and, in deny-
ing paragraph 9(b) states:
Deny-Curtis Roberts stated that the correct re-
sponse to any complaint was to notify the job stew-
ard who would then bring the complaint to the
foreman and that to violate this accepted procedure
and call the union hall personally could be reason
for termination.
The answer was followed by a first amended answer
and a second amended answer. In these pleadings Re-
spondent admitted most of paragraph 9(a), although de-
nying the reference to complaints about job conditions,
and denied paragraph 9(b). I denied Respondent's trial
motion that the first two answers, as superseded plead-
ings, be excluded from the formal exhibit folder (Tr. 6).
It is clear that a superseded pleading may contain an ad-
mission. Respondent's original answer by Kaiser certain-
ly falls into the admission category.
Although admitting that Roberts was a statutory su-
pervisor, CER denys that he was an agent. Citing cases
such as Robertshaw Controls Co., 263 NLRB 958 (1982),
and Montgomery Ward &d Co., 115 NLRB 645 (1956),
CER argues on brief that the foregoing conduct, even if
established, is not violative of Section 8(a)(1) because
Roberts, as a member of the bargaining unit, owed his al-
legiance to Local 450. Respondent contends that there is
no evidence it authorized, encouraged, or ratified Rob-
erts' conduct, or acted in such a manner that would lead
employees reasonably to believe that Roberts was acting
for and on behalf of management. Moreover, CER
argues:
It is difficult to imagine why the Company would
even care whether or not employees were calling
the Union hall complaining about Curtis Roberts.
The Company received no complaints about Rob-
erts, and Roberts' reputation at the Union hall had
no impact on the Company.
Finally, CER argues that the whole case is nothing more
than the outgrowth of an intraunion power struggle in-
volving dissident factions disputing against those holding
office and power.
Regardless of whether President Kaiser was personally
aware of all events, it is clear that Roberts' conduct of
bypassing union work rules and personally performing
occasional craft work was in keeping with the latitude
available to him under the project agreement. His actions
in that regard generally were calculated to advance
CER's interests at the jobsite. When Local 450 informed
Roberts that complaints were being received about his
conduct, his reaction was but an extension of his conduct
to "expedite" the work and interests of CER at the job-
site. The issue can hardly be considered an intraunion
matter.
Under all the circumstances, I find that CER violated
Section 8(a)(1) of the Act as alleged in complaint para-
graphs 9(a) and 9(b).
2. Complaint paragraphs 9(c) and (d)
Complaint paragraph 9(c) alleges that on or about
June 18 Roberts "informed Union Steward Mike To-
lopka that he was going to fire employees Vernagallo
unless he kept his mouth shut about 'union business."'
Complaint paragraph 9(d) alleges that on or about
June 19 Roberts "informed Steward Mike Tolopka that
he was going to discharge Vernagallo because he was
calling officials of the Union pertaining to working con-
ditions on the job."
Respondent denies both allegations.
The testimony of Steward Tolopka is uncontradicted
that on June 16 Roberts told Tolopka that if Vernagallo
did not quit calling the hall Roberts was going to run
Vernagallo off the job (Tr. 82, 110). Tolopka told Rob-
erts that Vernagallo had not called the hall. Roberts re-
plied that if he learned who had he would get rid of him.
In a meeting between Tolopka and Roberts, held at a
truckstop after work on June 187 Roberts stated that, if
Vernagallo did not stop causing all the trouble, and call-
ing the hall, "We are going to have to get rid of him."
(Tr. 18.) Roberts said that Vernagallo was doing his job,
but would not keep his mouth shut (Tr. 81, 114).
Although Vernagallo never telephoned the hall, he did
accompany Tolopka on a visit to Bloodworth's home to
protest job conditions, and on one occasion, at Tolopka's
suggestion, he did complain directly to Roberts about
Vice President Taylor's having him leave what he was
doing in order to perform some work in another area of
the project (Tr. 114-115, 285-286). Vernagallo credibly
testified that Roberts agreed that Superintendent Taylor8
should not have gone directly to operator Vernagallo
and that Roberts would get it stopped (Tr. 286).
I find that Roberts believed that Vernagallo was
making trouble on the job by calling the union hall to
complain that working conditions on the job did not
comply with union rules embodied in the AGC contract,
and that Roberts threatened to discharge Vernagallo if
the operator did not cease his protected conduct. I there-
fore find that CER violated Section 8(a)(1) of the Act as
alleged. 9
C. Vernagallo's June 24, 1982 Termination
1. The events of June 23, 1982
As earlier noted, the General Counsel alleges that Re-
spondent discharged Vernagallo on June 24, 1982,
whereas CER contends that Vernagallo quit.
I Tolopka arranged the meeting, at Bloodworth's suggestion, to see if
he could obtain the working cooperation of Roberts.
a Taylor is referred to in the record under the title of vice president
and also superintendent.
a The minor variation in dates between those alleged and those de-
scribed in the testimony is material.
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CER, INC.
On June 23 Vernagallo was assigned to operate some
water pumps on the project. During the course of the
morning Vernagallo discovered laborers either operating
or attempting to operate certain of the water pumps. Al-
though the Charging Party advised the laborers that the
work of operating the water pumps belonged to the op-
erating engineers, the problems persisted. Around 9 a.m.
Roberts replaced Vernagallo with operator Earl Rogers
on the pumps and assigned the Charging Party to oper-
ate a pulverizer. Before departing on his new assignment,
Vernagallo told Roberts about the problems he had been
experiencing with the laborers and for Rogers to be on
watch.
Later that day Vernagallo observed a laborer, whom
Charging Party had confronted earlier regarding oper-
ation of the water pump, secure some gasoline. Verna-
gallo alerted oiler Mike Shuttlesworth to the situation
and told him not to let the laborer start the water pump
but to go over and start it himself (Tr. 310, 399).10 A
few minutes later when Vernagallo was making a pass
through the area on his pulverizer, the Charging Party
observed the laborer starting the water pump. Verna-
gallo dismounted, walked over to Shuttlesworth, and in-
quired why the oiler had not gone over and started the
water pump. Shuttlesworth responded that Roberts said
operator Ben Milam was assigned to the pumps, and that
Shuttlesworth was just following orders (Tr. 137, 311,
400). Shuttlesworth pointed out that the operator was in
the area sitting against a fence sleeping and that Verna-
gallo could go awaken him (Tr. 138, 190). Vernagallo
went over and confronted the laborer who told him to
take his complaint to the laborers foreman.
Vernagallo then went and protested to Dillard Knapp,
the operators' acting steward. After explaining the prob-
lem to Knapp, Vernagallo told him to "Get them
goddam laborers off my equipment." At that point Gen-
eral Foreman Curtis Roberts and Foreman Curtis Berry
drove up. Vernagallo walked over to Roberts and said
(Tr. 313-314):
Get them goddam niggers off of my water pump.
The water pumps belong to the operating engineers,
and I am not going to stay out here and watch
some other craft run them.
Roberts told Vernagallo to calm down, and that he
would take care of it. He asked what the problem was
and Vernagallo explained the entire matter to Roberts.
Roberts said he would take care of it and asked Verna-
gallo to make one more pass with the pulverizer. It was
about 20 minutes before quitting time. The Charging
Party said he would be glad to, and as he started on the
pass Roberts and Berry drove off toward the water
pump.
Earlier that day, apparently after Vernagallo asked
Shuttlesworth why he had not started the pump, Shutt-
lesworth, exasperated at being caught between what he
considered orders by Roberts and Taylor to violate
10 Although not expressly explained in the record, it appears that Ver-
nagallo addressed Shuttlesworth because the latter was repairing the
starter of a steel-wheeled roller which apparently was situated near the
water pump.
union work rules, and pressure from Tolopka and Verna-
gallo to comply with union rules, asked Roberts for his
check and explained why he wanted it and why he could
not work under such conditions (Tr. 194).
2. CER gives Vernagallo a "Hobson's choice"
When Vernagallo arrived for work the morning of
June 24, 1982, Roberts told him to come into the office
for a meeting. Inside they went to Superintendent Tay-
lor's office. Present were Taylor, Roberts, and Verna-
gallo. After some hesitation between Roberts and Taylor,
Roberts said (Tr. 316):
We have got two things we can do here; we have
got two choices. Either you can stay on your ma-
chine and quit jumping on me and these other oper-
ators out here about what goes on on this job, or
we can terminate you now.
Vernagallo replied in three words:."Get my money."
After waiting for the secretary to prepare his pay-
checks, and obtaining them, Vernagallo left. On leaving
he saw Tolopka and, in response to the steward's in-
quiry, told him what had happened." Moments later
Roberts came out and told Vernagallo, "Frankie, I am
sorry it had to end like this." Vernagallo than told him
he had the first part right, that Roberts was indeed sorry.
Roberts responded that if he felt that way he would not
forget it, and Vernagallo asked if Roberts thought the
Charging Party was going to forget this matter (Tr. 321-
322).12
A substantial portion of the hearing was devoted to
evidence about subsequent events, particularly internal
union charges Vernagallo filed against Roberts and the
ensuing internal union events. Such evidence was offered
and received for the purpose of showing an interpreta-
tion of events by Vernagallo consistent with the position
that he was fired on June 24. Except as to one matter, I
see no need to describe such evidence here, for a deci-
sion can be made without reliance on those events.
The exception referred to is the interpretation Roberts
gave to Vernagallo's separation on June 24. Vernagallo
testified that after leaving the jobsite on June 24 he pro-
ceeded to the Local 450 hall where he spoke with
Bloodworth, described what had happened, and said he
wanted to file internal union charges against Roberts and
Taylor. In this conversation Bloodworth stated that Rob-
erts had just called and reported that Vernagallo had
quit. The Charging Party denied quitting, saying he had
been fired (Tr. 319-320).
Oiler Shuttlesworth credibly testified that on Friday
June 25 Roberts boasted to him that he had gotten rid of
Vernagallo; that Vernagallo was making too much trou-
ble on the job; and that he had gotten rid of him so that
the job would run smooth; and that he had run off the
troublemaker (Tr. 140-141). After the investigating
" Tolopka had come to pick up his check. The night before he in-
formed Roberts that he was tired of all the squabbling and had decided
to accept a job elsewhere (Tr. 76).
1" The General Counsel argues that Roberts' expression of "sorry"
supports the version that CER had just discharged Vernagallo.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board agent took statements from Roberts and Taylor
during the investigation of the charge in this case, Rob-
erts began telling employees that Vernagallo had quit
(Tr. 141-142, 145, 222; Shuttlesworth).
3. Analysis and conclusions
As Vernagallo was not fired outright, but given a
choice, it is clear that the issue is whether he was con-
structively discharged by the terms of the choice. The
elements of a constructive discharge are set forth in
Crystal Princeton Refining, 222 NLRB 1068 (1967). First,
burdens were imposed on the employee that caused, and
were intended to cause, a change in his working condi-
tions so difficult or unpleasant as to force him to resign,
and second, those burdens were imposed because of the
employee's union or protected concerted activities.
CER contends that resolution of this case is controlled
by Valley West Welding Co., 265 NLRB 1597 (1982). The
employee there, Charles Doyle Smith, was not allowed
to accompany a fellow employee, Nelson Wright, to a
disciplinary interview, and was told to return to work or
be fired. The employee quit. Dismissing the complaint,
the Board stated (id. at 1599, footnotes omitted):
Even though Wright had a right to have Smith
present at his disciplinary interview, the Board has
long held that an employee who quits in protest
against unfair labor practices is not deemed to have
been constructively discharged. Further, representa-
tion rights accrue[d] to [Wright], not to [Smith].
. . . Thus, Smith cannot be said to have resigned
over any illegal action taken by his employer
against him.
CER's reliance on Valley West is misplaced, for that
case is inapposite. Smith was not being deprived of any
statutory right there. On the other hand, Vernagallo was
given a Hobson's choice of relinquishing his Section 7
rights regarding enforcement of contractual work rules
or of being discharged.' 3 CER did not repudiate the
contract, and Vernagallo could have filed a grievance
and continued working. "Had he done so, there would
have been no change in his working conditions 'so diffi-
cult or unpleasant' that he would have been forced to
resign." (CER's brief at 15.) That argument, however,
begs the question.
As early as Atlas Mills, 3 NLRB 10, 17 (1937), the
Board held that to condition employment on the aban-
donment by employees of rights guaranteed by the Act is
equivalent to discharging them outright for such activity.
In the recent case of J. J. Security, 252 NLRB 1290, 1294
(1980), the Board adopted Judge Leonard M. Wagman's
analysis that the employer violated the Act by requiring
employees to chose between resigning or surrendering
Is The option of working without union representation or of resigning
has been described as an illegal "Hobson's choice." Remodeling By Olt-
manns, 263 NLRB 1152, 1162 (1982). As discussed by Judge Burton Lit-
vack there, the Board has held in other cases that a choice between going
"open shop" or quitting is an unlawful condition. Even the choice of ac-
cepting unilateral changes or quitting is an unlawful condition. Electrical
Machinery Co., 243 NLRB 239 (1979).
their statutory rights to concertedly seek a wage in-
crease.
Citing cases such as Colonial Stores, 248 NLRB 1198
(1980), for the proposition that it is unlawful to discharge
an employee for attempting to enforce the terms of a col-
lective-bargaining agreement, and cases such as Carlson
Corp., 195 NLRB 218, 221 (1971), for the proposition
that it is unlawful to discharge an employee for protest-
ing that another craft was performing the duties of his
craft, the General Counsel contends that Vernagallo's
discharge was unlawful.
Roberts told Vernagallo that if he remained he must
"stay on his machine" and "quit jumping on me and
these other operators" concerning conditions on the job.
This is the equivalent of telling Vernagallo that he could
remain only if he ceased exercising his statutory right to
seek enforcement of the contract. That is an illegal con-
dition. The credited and uncontradicted evidence is that
Roberts never asserted that Vernagallo was not doing a
good job in his work. It is just that Roberts was upset
that Vernagallo would "not keep his mouth shut" when
he observed violations of the contractual work rules. I
find that this is the very reason CER gave Vernagallo a
Hobson's choice on June 24, 1982, and that such a condi-
tion to continued employment violated Section 8(a)(1) of
the Act as alleged. I further find that the events of June
23 merely solidified Roberts' suspicions all along that
Vernagallo was the "troublemaker" on the job, and that
Vernagallo's public "jumping" on Roberts on June 23, in
seeking to protect craft work, was the final straw that
persuaded Roberts that he must carry out his earlier
threats to get rid of Vernagallo. I find that CER gave
Vernagallo the option it did on the assumption that the
Charging Party would reject it and leave. Respondent's
assumption was correct. Accordingly, I find that Re-
spondent constructively discharged Vernagallo.
CONCLUSIONS OF LAW
1. CER, Inc. is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 450 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the June 17, 1982 threat of General Foreman
Curtis Roberts to discharge the employee who was call-
ing Local 450 to complain about job conditions, and by
the June 16 and 18, 1982 threats by Roberts to discharge
Frank L. Vernagallo because of his union activities relat-
ing to conditions on the job, CER, Inc. violated Section
8(a)(1) of the Act.
4. By causing Frank L. Vernagallo to resign on June
24, 1982, when given the choice of ceasing his union ac-
tivities or being terminated, CER constructively dis-
charge Vernagallo in violation of Section 8(a)(l) of the
Act.
5. The aforesaid threats and discharge constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
In view of the foregoing finding I shall recommend
that Respondent be ordered to cease and desist its illegal
1074
CER, INC.
conduct, to post an appropriate notice, to offer immedi-
ately and full reinstatement to Frank L. Vernagallo, and
to make him whole with interest. Backpay shall be com-
puted in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1959), with interest calcu-
lated in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962). Expunction of any reference to the
discharge from personnel records shall be ordered in ac-
cordance with Sterling Sugar, 261 NLRB 472 (1982).
Respecting the reinstatement of Vernagallo, the parties
stipulated that should CER, Inc. ultimately be faced with
an order to reinstate Vernagallo, it would be entitled to
raise, at the compliance stage, a certain matter regarding
the shooting of another member of Local 450, in relation
to Vernagallo's suitability for reinstatement (Tr. 404-
407). It is therefore understood that reinstatement may
hinge on the outcome of a compliance proceeding re-
garding the matter reserved by stipulation. In that con-
nection, should Vernagallo waive the offer of reinstate-
ment, and should Respondent then be willing to comply,
paragraph 2(a), of the recommended Order regarding of-
fering reinstatement shall not apply and the correspond-
ing clause of the penultimate paragraph of the notice to
employees shall be deleted, and the following sentence
shall be added at the end of the paragraph: "Frank L.
Vernagallo has voluntarily waived any offer of reinstate-
ment to his former job."
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended ' 4
ORDER
The Respondent CER, Inc., Houston, Texas, its offi-
cers, agents, successors, and assign, shall
1. Cease and desist from
(a) Threating employees with discharge if they com-
plain to their union that working conditions on the job
violate contractual work standards or do not otherwise
keep quiet about such matters.
(b) Constructively discharging employees because they
attempt to enforce the provisions of a collective-bargain-
ing agreement covering them on the jobsite.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act.
(a) Offer Frank L. Vernagallo immediate and full rein-
statement to his former position of employment or, if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights or privileges previously enjoyed, and make him
whole, with interest, for any loss of earnings suffered by
reason of his termination, in the manner set forth above
in the section of this Decision entitled "The Remedy."
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Expunge from its files any reference to the June 24,
1982 constructive discharge of Frank L. Vernagallo, and
notify him in writing that this has been done and that
evidence of such unlawful discharge will not be used as
a basis for future personnel action against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Houston, Texas office at the Anheuser-
Busch brewery expansion jobsite, or if Respondent is no
longer present at such jobsite, at its principal office and
its principal Houston, Texas jobsite signed and dated
copies of the attached notice marked "Appendix."'
Copies of notice, on forms provided by the Regional Di-
rector for Region 23, after being signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
15 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the Unites States Government
After a hearing at which all sides have had the opportu-
nity to present their evidence and cross-examine wit-
nesses, the National Labor Relations Board has found
that we violated the National Labor Relations Act, and
the Board has ordered us to post this notice and to
comply with its provisions.
The National Labor Relations Act gives you, as em-
ployees, the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of your own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten you with discharge for com-
plaining to your union that working conditions on the
job violate contractual work standards or for not other-
wise keeping quiet about such matters.
WE WILL NOT constructively discharge you because
you attempt to enforce the provisions of a collective-bar-
gaining contract covering you on the jobsite.
WE WILL NOT in any like or related manner restrain or
coerce you with respect to your rights guaranteed by
Section 7 of the National Labor Relations Act.
WE WILL offer Frank L. Vernagallo immediate and
full reinstatement to his former position of employment
or, if such job no longer exists, to a substantially equiva-
lent job, without prejudice to his seniority or other rights
and privileges previously enjoyed, and WE WILL make
Frank L. Vernagallo whole, with interest, for any loss of
earnings he may have suffered as a result of our con-
structively discharging him on June 24, 1982.
WE WILL expunge from our files any reference to the
constructive discharge of Frank L. Vernagallo, and WE
WILL notify him in writing that this has been done and
that evidence of this unlawful discharge will not be used
as a basis for future personnel action against him.
CER, INC.
1076