General Interiors

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1155 (N.L.R.B. 1991)

1155
301 NLRB No. 143
GENERAL INTERIORS
1 The Respondent also denies the complaint allegation that a copy of the
charge in this case was served on it on August 19, 1988. Proof of service of
the charge on the Respondent, dated August 19, 1988, together with a copy
of the receipt showing delivery to the Respondent on August 23, 1988, is at-
tached to the Motion for Summary Judgment, which is undisputed. Accord-
ingly, we find that the Respondent was properly served with a copy of the
charge.
Edward C. Woltkamp d/b/a General Interiors and
Painters Union Local 83, International Broth-
erhood of Painters and Allied Trades, AFL–
CIO. Case 20–CA–22158
February 28, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The General Counsel of the National Labor Rela-
tions Board issued a complaint and notice of hearing
on December 21, 1989, against Edward C. Woltkamp
d/b/a General Interiors, the Respondent, alleging that it
had violated Section 8(a)(1) of the National Labor Re-
lations Act by telling its employees that it did not want
union stewards working on its jobsites and that it
would harass the union stewards and by threatening to
terminate its employees because of their union activi-
ties and sympathies, and had violated Section 8(a)(1)
and (3) by terminating employee Gary Van Tuyl. Sub-
sequently, on September 25, 1990, the Respondent
filed an answer, admitting in part and denying in part
the allegations of the complaint and requesting that the
complaint be dismissed in its entirety.
Thereafter, on October 9, 1990, the General Counsel
filed a Motion for Summary Judgment, with appen-
dices attached. The General Counsel submitted that the
Respondent’s answer raises no material issues of fact
requiring an evidentiary hearing and that summary
judgment is warranted.
On October 11, 1990, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel’s motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The complaint, inter alia, alleges as follows: Steve
Woltkamp and Earl Fye have been at all times material
supervisors of the Respondent within the meaning of
Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act. About
May 18, 1988, the Respondent, by Steve Woltkamp, at
the Respondent’s facility, told its employees that it did
not want union stewards working on its jobsites and
that it would harass the union stewards. About June
27, 1988, the Respondent, by Earl Fye, at the Re-
spondent’s worksite at Marin General Hospital, in San
Rafael, California, threatened to fire its employees be-
cause of their union activities and sympathies. About
July 1, 1988, the Respondent terminated Gary Van
Tuyl because he joined, supported, or otherwise as-
sisted the Union, and engaged in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection.
The Respondent denies the complaint’s allegation
that Earl Fye is, or at all times material was, a super-
visor within the meaning of Section 2(11) of the Act
or an agent of the Respondent within the meaning of
Section 2(13) of the Act. It also denies the allegation
that Steve Woltkamp is and has been at all times mate-
rial an agent of the Respondent within the meaning of
Section 2(13) of the Act but admits that Woltkamp is
employed in a supervisory capacity by the Respond-
ent.1 The Respondent otherwise admits the complaint’s
allegations. For the reasons set forth below, we grant
the General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material the Respondent has been a
member of the Bay Area Drywall Finishers Associa-
tion which has been, at all times material, an organiza-
tion of employers engaged in the construction industry
in the Bay Area, and which exists for the purpose,
inter alia, of representing its employer-members in ne-
gotiating and administering collective-bargaining
agreements.
During the 12 months preceding the issuance of the
complaint in this case, employer-members of the Bay
Area Drywall Finishers Association, including the Re-
spondent, in the course and conduct of their business
operations in the construction industry in the Bay
Area, have performed construction services in excess
of $50,000 for entities which meet the Board’s direct
standards for the assertion of jurisdiction. The Re-
spondent admits and we find that the employer-mem-
bers of the Bay Area Drywall Finishers Association,
including the Respondent, have been, at all times ma-
terial, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The
Union has been, at all times material, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent in its answer to the complaint ad-
mits, and we find, that about May 18, 1988, in viola-
tion of Section 8(a)(1) of the Act, the Respondent, by
Woltkamp, told its employees that it did not want
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent admits that it, by Fye, threatened to fire the Respondent’s
employees because of their union activities and sympathies. The Respondent
also admits the complaint’s allegation drawing the legal conclusion that it, by
Fye’s acts and conduct, violated Sec. 8(a)(1) of the Act. Accordingly, as con-
tended by the General Counsel, the Respondent’s denial that Fye was either
its supervisor or its agent is effectively rendered moot and there is no material
issue of fact to be resolved. We therefore find it unnecessary to determine
whether Fye was otherwise an agent of the Respondent within the meaning
of Sec. 2(13) of the Act or a supervisor within the meaning of Sec. 2(11) of
the Act.
Member Devaney would deny the General Counsel’s motion as it pertains
to the allegation that the Respondent violated Sec. 8(a)(1) through Fye’s con-
duct. In his view, the Respondent’s admission of a legal conclusion does not
‘‘moot’’ denial of the material fact underlying that conclusion, i.e., Fye’s sta-
tus as a supervisor or agent. Thus, in Member Devaney’s view, the General
Counsel has failed to show that the Respondent’s answer raises no issues of
material fact.
union stewards working on its jobsites and that it
would harass the union stewards. The Respondent fur-
ther admits, and we find, that about June 27, 1988, it,
by Fye, at the Respondent’s worksite at Marin General
Hospital, in San Rafael, California, violated Section
8(a)(1) of the Act by threatening to fire its employees
because of their union activities and sympathies.2 The
Respondent also admits, and we find, that about July
1, 1988, it terminated Gary Van Tuyl in violation of
Section 8(a)(1) and (3) of the Act, because he joined,
supported, or assisted the Union, and engaged in con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection.
CONCLUSIONS OF LAW
1. The Respondent, Edward C. Woltkamp d/b/a
General Interiors, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Painters Union Local 83, International Brother-
hood of Painters and Allied Trades, AFL–CIO is a
labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and has thus
violated Section 8(a)(1) of the Act by:
(a) Telling its employees at its facility that it did not
want union stewards working on its jobsites and that
it would harass the union stewards.
(b) Threatening to terminate its employees at the
Marin General Hospital, in San Rafael, California, be-
cause of their union activities and sympathies.
4. By terminating its employee Gary Van Tuyl be-
cause he joined, supported, or assisted the Union, and
engaged in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act, we shall order it to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. We shall
order that the Respondent offer full and immediate re-
instatement to Gary Van Tuyl and that he be made
whole for any loss of pay or benefits that he may have
suffered by reason of the discrimination against him as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Edward C. Woltkamp d/b/a General Inte-
riors, Lodi, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Telling employees that it does not want union
stewards working on its jobsites and threatening to har-
ass the union stewards.
(b) Threatening to terminate employees because of
their union activities and sympathies.
(c) Discharging or otherwise discriminating against
any employee for supporting Painters Union Local 83,
International Brotherhood of Painters and Allied
Trades, AFL–CIO or any other labor organization.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Gary Van Tuyl immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the un-
lawful discharge and notify the employee in writing
that this has been done and that the discharge will not
be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
1157GENERAL INTERIORS
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(d) Post at the Respondent’s Lodi, California facility
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the 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 the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to terminate our employees
because of their union activities and sympathies.
WE WILL NOT tell our employees that we do not
want union stewards working on jobsites and that we
will harass the union stewards.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Painters Union Local
83, International Brotherhood of Painters and Allied
Trades, AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Gary Van Tuyl immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Gary Van Tuyl that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
EDWARD C. WOLTKAMP D/B/A GEN-
ERAL INTERIORS