Evan Williams Construction Co., Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1973

208 N.L.R.B. 15 (N.L.R.B. 1973)

EVAN WILLIAMS CONSTRUCTION CO., INC.
Evan Williams Construction Co., Inc. and Morris
Robinson . Case 21-CA-11716
December 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 31, 1973, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
filed a brief in answer to 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in, light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Evan Williams
Construction Co., Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
2 In the absence of any exceptions, we adopt, pro forma, the Administra-
tive Law Judge's recommendation that our remedial order make no
provisions for employee Robinson's reinstatement
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was tried at Los Angeles, California, on June 20 and
25, 1973.1 The charge was filed on April 13, by Morris
Robinson, an individual. The complaint issued on May 22,
and as amended on June 7 and at the hearing, alleges that
Evan Williams Construction Co., Inc., herein called
I All dates are in 1973, unless otherwise specified
2 The transcript of the record is hereby corrected
15
Respondent, violated Section 8(axl) and (3) of the
National Labor Relations Act, as amended.
Issues
The primary issues are: Whether Respondent violated
Section 8(a)(3) and (1) of the Act by terminating the
employment of Morris Robinson between March 15 and
19 and by permanently discharging him on April 19
because he sought to enforce a collective-bargaining
agreement and sought assistance from a union; and
whether Respondent violated Section 8(a)(1) of the Act by
threatening to discharge employees because they engaged
in protected activity.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-exammne
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Respondent.
Upon the entire record2 of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged as a
general contractor in the building and construction
industry in Los Angeles, California, with its principal place
of business at 9419 South San Pedro Street, Los Angeles,
California. Respondent annually performs services valued
in excess of $50,000 for the city of Los Angeles, California,
which city annually purchases and receives materials
valued in excess of $50,000 directly from suppliers located
out of California. The complaint alleges, the answer
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that Laborers' Union
Local 300, Laborers' International Union of North
America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. Background and the alleged threat to discharge
employees
Respondent, a construction contractor, is a signatory to
a collective-bargaining agreement with the Union. During
early 1973, Respondent was doing demolition work in
connection with a remodeling job at the Elisa Village
project in east Los Angeles. On January 31, Respondent
208 NLRB No. 11
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested the referral of a construction laborer from the
Union and Morris Robinson was sent by the Union to the
job. Another construction laborer who had been referred
by the Union, Major Dodson, was put on Respondent's
payroll at about that time. Both M. Robinson and Dodson
were members of the Union.
When M. Robinson and Dodson received their pay-
checks in early February, they saw that the paycheck stubs
did not indicate any deductions for pension and welfare
payments that were due under the contract. In addition,
the stubs did not indicate any payment for overtime which
they had worked.3
On a Monday morning in early February, M. Robinson
and Dodson went into the office of Evan Williams to speak
to him about this matter. Evan Williams and Fred
McCrumbly were present. Williams is the principal of
Evan Williams Construction Co., Inc., and McCrumbly is
the superintendent on the job. Both are supervisors within
the meaning of the Act .4 M. Robinson told Williams that
they had been working more than 8 hours a day and had
only been paid for 8 hours a day. He also said that the
paycheck stubs did not show anything being taken out for
health and welfare or pension benefits. Williams told them
that they were troublemakers and that he was going to fire
them. However, McCrumbly intervened with Williams and
neither M. Robinson nor Dodson were discharged.5
2. The first discharge
In February and March, M. Robinson was having
difficulty cashing his paychecks. On one occasion he
cashed a check at the Mini Mart Grocery Store. That
check was returned to Mini Mart for insufficient funds
with a slip debiting the Mini Mart bank account for the
amount of the check. Thomas Nix, Jr., the owner of the
grocery store, told M. Robinson that he couldn't cash his
checks anymore because Respondent would not honor
them. M. Robinson went to McCrumbly and complained
that his checks were bouncing. McCrumbly told him that
at certain times there were not enough funds in the bank.
On March 12, M. Robinson asked for and received the day
off and went to the bank upon which Respondent's checks
were drawn. The president of the bank told him that he
couldn't cash a check because there weren't sufficient
funds. At that time Robinson had several uncashed checks.
3 This finding is based on the credited testimony of M Robinson which
was in large part corroborated by Dodson, Though Evan Williams, the
principal in Respondent, introduced evidence that pension and welfare
contributions were eventually made on behalf of M Robinson and Dodson
for February, there is no credible evidence in the record to shed doubt on
M Robinson's assertion that the pay stubs failed to show those payments
and that overtime was not paid at that time.
4 The complaint alleges, the answer admits, and I find that Williams is a
supervisor within the meaning of Section 2(11) of the Act and an agent of
Respondent The uncontradicted testimony of M Robinson establishes that
McCrumbly both hired and fired employees I find that McCrumbly is a
supervisor within the meaning of Section 2(11) of the Act
5 These findings are based on the credited testimony of M Robinson
which was corroborated in large measure by the testimony of Dodson
Williams, though he did not mention it in his testimony, made a closing
statement in which he denied calling anyone a troublemaker Williams
testified that at this meeting Robinson and Dodson asked for more money
and he explained what his budget was I credit M. Robinson
6 These findings are based on the credited testimony of M. Robinson, W.
Robinson, and Thomas Nix, Jr The testimony of those three witnesses was
He went back to the job and told McCrumbly that he was
still having trouble cashing his checks. He also told
McCrumbly that if he couldn't cash them anywhere else he
would have to go to the Union to cash them. On March 14,
M. Robinson went to the union office and the Union
cashed one of his checks. The following day, March 15, at
6:30 p.m., McCrumbly fired M. Robinson. McCrumbly
told M. Robinson that he was a good worker but he
(McCrumbly) was going to have to let him go and that M.
Robinson should not have gone to the Union. In addition,
McCrumbly said that M. Robinson had started trouble by
going to the Union. The next day, Friday, March 16, M.
Robinson called the Union's field representative, Willie
Robinson, and told him the circumstances of his discharge.
W. Robinson said that he would check it out. On Monday,
March 19, W. Robinson called Williams and asked him
about M. Robinson's paycheck. Williams told him that it
was a lie and that he didn't have any bad checks. W.
Robinson replied that he would go to the market and pick
up the check. W. Robinson then went to Mini Mart and
spoke to Nix. Nix told him that he did have trouble with
the check but that he had redeposited it and did not have
possession of it. W. Robinson then went to Williams' office
and spoke to Williams about the matter. Williams said that
he would make the check good. Williams also complained
to W. Robinson that M. Robinson had gone to the Union
about the problem rather than seeing him directly. W.
Robinson replied that M. Robinson had spoken to the
supervisor. W. Robinson specifically asked why M.
Robinson had been terminated and Williams replied: "I
don't have no use for a son of a bitch that will go to the
Union." At that point W. Robinson insisted that M.
Robinson be reinstated and Williams agreed to take
Robinson back. M. Robinson went back to work on March
19.6
3. The second discharge
When M. Robinson was reinstated on March 19,
Williams told him that he (M. Robinson) was the new
labor foreman. As the labor foreman, M. Robinson did not
have power to hire, fire, or recommend hiring or firing, but
he did become responsible for writing in the time that other
people on the job worked.? There is no contention that M.
Robinson was a supervisor within the meaning of the Act.
both independently credible and mutually corroborative Much of it was
uncontradicted Williams testified that he had an overdraft at the bank, but
he also acknowledged that he could not say whether there were sufficient
funds in his account at all times to cover all the checks he wrote and that he
couldn't answer whether some of Robinson 's checks had bounced or not.
Williams pointed to the fact that none of M. Robinson 's cancelled checks
had "insufficient funds" stamped on them However , the credible evidence
of M Robinson , W Robinson and Nix clearly establishes that M Robinson
was having difficulty with at least one paycheck. In addition, it is noted that
Dodson credibly testified that he had two paychecks that bounced and had
to be redeposited
7 This finding is based on the credited testimony of M Robinson.
Williams testified that he never told M Robinson that he was a labor
foreman. Employee W. B. Roberts testified that Williams told him that
McCrumbly was in charge of the project and that no one other than M.
Robinson told him that M Robinson was a foreman The testimony of W
B Roberts was not necessarily inconsistent with that of M Robinson. If M
Robinson was told by Williams that he was a labor foreman , M Robinson
may have been the one who passed that information to other employees As
between M Robinson and Williams , I credit M. Robinson,
EVAN WILLIAMS CONSTRUCTION CO., INC. 17
Under the contract, the labor foreman's position is to be
paid 50 cents an hour above the amount paid to laborers.
Though M. Robinson was made a labor foreman on
March 19, he did not receive the 50-cent-an-hour incre-
ment. On Friday, April 6, he went to Respondent's office
and complained to the timekeeper that he had not received
the extra pay for being a labor foreman. The timekeeper
replied that he hadn't heard anything about M. Robinson's
being a foreman. The timekeeper then told him to get out
and that he seemed to be wanting to start trouble.8
The next working day was Monday, April 9, and M.
Robinson was scheduled to report to work at 8 a.m. At 6
a.m. that morning McCrumbly came to where Robinson
lived, gave him a check, and told him that work was slow,
there had to be a layoff, and that he (M. Robinson) was
laid off.
Dodson credibly testified that at the time of M.
Robinson's layoff, there was still work available for M.
Robinson to do. Dodson worked for about 2 weeks after
M. Robinson was discharged and then he, too, was
discharged.
Williams testified that M. Robinson was laid off solely
because the project had reached a point where his work
was no longer needed. According to Williams, construction
laborers were hired for the single job they were working on
and as the work was completed they were laid off. I credit
Williams' assertion that M. Robinson was hired for the
particular job at the Elisa project, but I do not credit his
assertion the M. Robinson's work was no longer needed at
the time of his discharge. Dodson was doing similar work
and was in a position to see what work was left to be done.
Dodson credibly testified that after M. Robinson's dis-
charge, he had to work some overtime. I credit Dodson
over Williams.9
B. Analysis and Conclusions
In early February, M. Robinson and Dodson com-
plained to Williams concerning the failure of the paycheck
stubs to indicate withholding for welfare and pension, as
well as the lack of overtime pay. That protest was a
protected activity under Section 7 of the Act, whether it is
viewed as the initial informal airing of a grievance under
the contract or as a concerted protest relating to terms and
conditions of employment. By first telling them that he was
going to discharge them and then revoking that discharge,
Williams was in effect threatening to discharge them
because they were engaging in that activity. Such a threat
interferes with the rights guaranteed to employees under
Section 7 of the Act and violates Section 8(a)(1) of the Act.
I therefore find that Respondent violated Section 8(a)(1) of
the Act by threatening to discharge M. Robinson and
Dodson because they engaged in activities protected by
Section 7 of the Act.
Respondent discharged M. Robinsonlon March 15 and
did not reinstate him until March 19 because M. Robinson
went to the Union to cash a paycheck. Williams admitted
to field representative W. Robinson in their conversation
9 These findings are based on the credited testimony of M Robinson
The timekeeper did not testify. Dodson, who was also present, averred that
the timekeeper told Robinson to go home and also told him that they would
talk about it the following week. Dodson did not mention the "troublemak-
on March 19 that that was the reason. As W. Robinson
credibly testified, Williams told him, "I don't have no use
for a son of a bitch that will go to the Union." In
discharging M. Robinson for that reason, Respondent
violated Section 8(a)(1) of the Act by interfering with M.
Robinson's right to engage in concerted activity .and
violated Section 8(a)(3) of the Act by discouraging
membership in the Union.
Respondent executed a collective-bargaining agreement
with the Union and sought the referral of employees
through the Union. Thus it appears that Respondent does
not bear an animus toward the Union in itself. However,
Williams' conduct indicates that he has a strong resent-
ment against anyone who even questions his way of doing
business. Thus, when M. Robinson and Dodson raised the
paycheck stub and overtime issues, he threatened to fire
them. Later, when M. Robinson went to the Union to cash
a paycheck because of his problems with the negotiability
of those checks, Williams did fire him. M. Robinson was
reinstated only upon the intervention of the Union. This
background must be viewed in evaluating the reason
behind the discharge of M. Robinson on April 9. On the
workday preceding the discharge, M. Robinson com-
plained to the timekeeper that he was not being paid the
50-cent-an-hour differential due under the contract to
labor foremen. The timekeeper did not know about M.
Robinson's designation as a labor foreman, but as the
keeper of the records it would be his duty to keep those
records accurate. The inference is warranted that the
timekeeper related this incident to higher management if
for no other reason than to check on M. Robinson's claim.
On the following working day, McCrumbly sought M.
Robinson out 2 hours before he was scheduled to work and
told him that he was laid off. That layoff falls in the same
type of pattern as the prior threat and discharge. In all
three situations, employees questioned William's proce-
dures and Williams struck out against them. M. Robinson's
attempt to enforce the contract by securing the 50-cent-an-
hour wage differential was an activity protected by Section
7 of the Act. Under these circumstances, I believe that the
General Counsel has established a prima facie case that
Robinson was discharged on April 9 because of his attempt
to enforce the contract by securing the 50-cent-an-hour
wage differential. Respondent defends with a claim that M.
Robinson was discharged solely because there was no work
available for him to do. As found above, I have credited
Dodson's testimony to the contrary and discredited
Williams' testimony in that regard. I therefore find that
Respondent interfered with M. Robinson's rights under
Section 7 of the Act and discouraged membership in the
Union in violation of Section 8(a)(1) and (3) of the Act by
discharging him because he sought enforcement of the
contract.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
er" part of the conversation, but I credit M. Robinson with regard to his
assertion in that regard.
9 It is noted that McCrumbly, who as job superintendent would have
known what work was left to be done, did not testify
18 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent terminated the employ-
ment of M. Robinson on March 15 and did not reinstate
him until March 19, and thereafter prematurely discharged
him on April 9 when there was work available for him to
do, thereby violated Section 8(a)(3) and (1) of the Act, I
shall recommend that Respondent be ordered to make M.
Robinson whole for any loss of pay resulting from those
discharges by payment to him of a sum of money equal to
the amount he normally would have earned as wages from
Respondent between March 15 and 19 and after April 9,
less net earnings during that period. Such backpay shall be
computed on a quarterly basis in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at 6 percent, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.10
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Morris Robinson on March 15 and
refusing to reinstate him until March 19 because he sought
assistance from the Union in cashing his paycheck,
Respondent violated Section 8(a)(3) of the Act. '
4. By discharging Morris Robinson on April 9 because
he sought to enforce Respondent's contract with the
Union, Respondent violated Section 8(a)(3) of the Act.
5. By the foregoing conduct and by threatening to
discharge employees because they questioned Respon-
dent's failure to list pension and welfare payments on
check stubs and its failure to pay overtime pay, Respon-
dent interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed to them by Section 7
of the Act, in violation of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER i i
Respondent, Evan Williams Construction Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise
discriminate against any employee because that employee
seeks assistance from the Laborers' Union Local 300,
Laborers' International Union of North America,
AFL-CIO, in cashing a paycheck or because that employ-
ee seeks to enforce its contract with the Union.
(b) Threatening to discharge employees because they
question its failure to list pension and welfare payments on
check stubs and its failure to pay overtime pay.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Morris Robinson whole for his loss of earnings
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) 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.
(c) Post at its place of business at 9419 South San Pedro
Street, Los Angeles, California, and at all jobsites where it
is currently working, copies of the attached notice marked
"Appendix." 12 Copies of the notice on forms provided by
the Regional Director for Region 21, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees 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.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
10 The General Counsel's brief requests that an order issue requiring
backpay to M Robinson , but there is no request for a reinstatement order
It thus appears that the General Counsel is satisfied that the job for which
M Robinson was hired has now been completed I shall therefore not
recommend a reinstatement order
ii In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
12 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
EVAN WILLIAMS CONSTRUCTION CO., INC. 19
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the recommended Order of an Administrative
Law Judge of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
After a trial at which all sides had a chance to give
evidence, an Administrative Law Judge of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice.
The Act gives all employees these rights:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representa-
tive of their own choosing;
To act together for collective bargaining or
other mutual aid or protection;
To refrain from any or all these things except
to the extent that membership in a union may be
required pursuant to a lawful union-security
clause.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to these
rights.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against any employee because
that employee seeks assistance from the Laborers'
Union Local 300, Laborers' International Union of
North America, AFL-CIO, in cashing a paycheck or
because that= employee seeks to enforce our contract
with that Union.
WE WILL NOT threaten to discharge employees
because they question our failure to, list pension and
welfare payments on check stubs and our failure to pay
overtime pay.
WE WILL make Morris Robinson whole by paying
him backpay with interest at 6 percent.
Dated By
EVAN WILLIAMS
CONSTRUCTION CO., INC.
(Employer)
(Representative) (Title)
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Eastern Columbia Building,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.