Harry F. Berggren & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 353 (N.L.R.B. 1967)

HARRY F. BERGGREN & SONS, INC.
Harry F. Berggren & Sons, Inc., and
Laborers ' Local Union No . 880, affiliated
with Laborers ' International Union of
North America , AFL-CIO. Cases 17-CA-3002
and 17-CA-3096.
June 14, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 22, 1967, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief. The General Counsel filed
cross-exceptions to the Trial Examiner's Decision
and a supporting brief.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modification.'
We agree with the General Counsel that in accord
with our recent Decision in Bilyeu Motor Corp., 161
NLRB 982, the policies of the Act will best be
effectuated if the notice which Respondent is
required to sign and post, and which informs the
employees of their rights, how those rights were
violated, and by what process they have been
upheld, is expressed in simple and readily
understandable language as set forth in the attached
Appendix.
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, Harry F.
Berggren & Sons, Inc., Scottsbluff, Nebraska, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
353
Substitute the attached Appendix for the
Appendix set forth in the Trial Examiner's Decision.
' Member Zagoria would find the secret ballot poll of the
employees, in all the circumstances, not violative of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
After a trial in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the Act and has ordered us to post this notice and to
keep our word about what we say in this notice.
WE WILL NOT hold unlawful elections to see if
you want a union.
WE WILL NOT fire you because you join a
union or favor a union.
Since the Board found that we violated the
law when we fired Joseph Perez, Isidro
Rodriguez, Pedro Rodriguez, Tiofilo Ramirez,
and Tony Lopez over the Union, WE WILL offer
them their old jobs back and give them
backpay.
You are all free to become or remain members of
Laborers' Local Union No. 880, and we won't punish
you in any way if you do.
HARRY F. BERGGREN&
SONS, INC.
(Employer)
Dated By
(Representative ) (Title)
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.
No other material relative to this matter shall be
posted during this period.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106 , Telephone FR4-7000.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled consolidated proceedings was held before
me, on January 23 and 24, 1967, at Scottsbluff, Nebraska,
on separate complaints of the General Counsel against
Harry F. Berggren & Sons, Inc., herein called the
Respondent or the Company. The charges were filed on
165 NLRB No. 52
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 24, 1966, and December 15, 1966, and the
complaints are dated October 31, 1966, and January 11,
1967, respectively. The issues are whether the Respondent
violated Section 8(a)(1) and (3) of the Act. Briefs were filed
after the close of the hearing by the General Counsel and
the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Harry F. Berggren & Sons, Inc., is a Nebraska
corporation engaged in the paving of roads, with its
principal place of business at Scottsbluff, Nebraska.
During the past calendar year it purchased materials for
use in the conduct of its business valued in excess of
$50,000 directly from sources located outside the State of
Nebraska and performed services valued in excess of
$50,000 outside the State of Nebraska. I find that the
Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers' Local Union No. 880, affiliated with 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 statute.
III. THE UNFAIR LABOR PRACTICES
This proceeding arose from an organizational campaign
carried on by Laborers' Local Union No. 880 in the city of
Scottsbluff in the summer of 1966. On July 23 Simmons,
the Union's business representative, gave a copy of his
standard area agreement to Mr. Jerry Berggren, president
of the Company. The wage scale for laborers set out in the
proposed contract is higher than the wages paid by this
Company to its laborers. Berggren arranged for a local
minister to conduct a secret election among over 30 of his
employees on August 15. It was held on the company
premises, the question put to them in writing was whether
they wished "to be represented by union," and the vote
was seven in favor and the rest against union representa-
tion. Berggren spoke to the employees before the election
for 4 or 5 minutes. According to the uncontradicted and
credited testimony of Joseph Perez, a laborer present,
among other things Berggren "said that the air line strike
would take two or three years to make up what they had
lost in the strike. He also said to us his company had never
been picketed nor lost a day's work. He also said it would
be a hard time for us to strike, to do something like this
because of payments and then he told us he was going to
conduct an election to see whether his employees wanted
to be represented by the union."
The next day, August 16, the Respondent filed a
representation election petition by letter with the Board's
Regional Office. During the week ending Saturday,
August 27, the Union's agents appeared several times at
one of the Company's job projects, distributing union
handbills and soliciting signatures to authorization cards.
That weekend six laborers in the crew of about nine who
were on that particular job were discharged, according to
the complaint; the Respondent contends that they quit.
The complaint alleges that the election held by the
Company constituted illegal interrogation of its employees
in violation of Section 8(a)(1) of the Act, and that the
discharge of the six men was motivated by an intent to stop
the self-organizational activities, unfair labor practices
within the meaning of Section 8(a)(3). The Respondent
denies the commission of any unfair labor practices.
There is a direct question of credibility to be resolved.
One of the six men who ceased work for the Respondent
on August 27 did not appear at the hearing. The remaining
five-all named in the complaint-told a consistent story
of advising the foreman on the job that they wished to have
the afternoon off; the supervisor-Claude Richards-
testified at odds with them.
The job at which these events occurred, involving
repaving of a street near St. Mary's Hospital in the city,
had been in progress 2 weeks and there was still several
weeks of work to be performed. It consisted of restoring
the street and sidewalks with poured concrete that arrived
at the site in ready-mixed trucks from a cement supplier.
There were eight laborers-some also doing cement
finishing-in the crew under Richards at the time Things
were taking their normal course all morning, according to
the testimony of Richards, until:
A. I would say a quarter to 12. We were finished
dumping and striking off the first strike-off. I would
say, at 10 after 12. The boys throwed down their tools
and headed for the pickup.
Q. What do you mean, headed for the pickup?
A. Well, it was, I would say, 20 or 30 feet away
from where we were working because I had my radio
on in case I received a message from the office or a
superintendent or the president of the Company.
Q. What happened then, if anything?
A. They passed out the cards and I asked what
they were doing and they said, "We are quitting," and
I said, "Well, what can I do, I can't hold you." And
they just walked off the job and left me there with all
the tools scattered for better than a full block and this
concrete unfinished.
On cross-examination Richards varied his testimony
somewhat. "Isidro was the main one. He said,'I'm quitting
this afternoon.' Lopez came up and said, `We are, too,' and
that was the end of it. They were the only two had told me
they were quitting, but they all went together. They was
the spokesmen for these other fellows."
Richards went on to say that of the total 500 feet of
concrete that had been poured that morning, 300 feet
remained.to be finished, and that to compensate for the
work not performed by the six men who left, he had to
work 2 to 2-1/2 hours himself to complete it.
Of the six men involved, five returned to work the
following Monday morning on schedule. Three-Tiofilo
Ramirez, Isidro Rodriguez, and Pedro Rodriquez-
appeared directly at the same St. Mary's Hospital job.
There, Tiofilo Ramirez was told by Jerry Berggren, "No
use you being here; you quit Saturday." To Isidro
Rodriquez and Pedro Rodriguez, Foreman Claude
Richards said: . the guys who left the job Saturday
afternoon, they had to go talk to Jerry." The three
proceeded from the job to the Company's downtown
office.
Tony Lopez went first to the Company's office in the
-ity very early because he was sharing a ride with a new
man who was first reporting for work and had to fill out a
W-2 form. In the office, it was very early, he met Foreman
Richards who told him he did not know whether Lopez
would be permitted to work. "You left the job Saturday
afternoon." Lopez asked what did Richards mean, and the
foreman answered: "I don't know. You will have to talk to
HARRY F. BERGGREN & SONS, INC.
Jerry Berggren." Richards and the new man left the office
and Lopez waited until Berggren arrived. At this point,
according to Lopez ' uncontradicted testimony, Berggren
said "we were discharged or off, I don't recall his exact
words."
The fifth man-Joseph Perez-presented himself early
that morning at a place called Gering, where, according to
his testimony, he had been told the previous Thursday or
Friday to report on this Monday morning. Within minutes
after he started work there, where the Company had a
crew performing a street sealing job, Dale Nelson, a roving
superintendent, arrived and told him he was not to work
"because I had walked off the job Saturday." Nelson did
not testify.'
Notwithstanding these passing words of "discharge"
from the employees in reference to the Monday morning
events, the Respondent rests upon the testimony of
Claude Richards to support its positive defense that all of
the men quit. Counsel for the Company made clear at the
hearing its position is that the men were not discharged,
but chose themselves to terminate their employment.' In
any event, it is clear they all returned for work as usual the
next workday, and the Respondent refused to permit them
to work.
Against the testimony of Richards must be weighed that
of the employees. Perez, who had been employed for about
a month, testified that about noon on Saturday he said to
Richards: "We would like the afternoon off," and that
Richards replied "It's up to you." Ramirez, 6 years an
employee of the Company, said he told Richards: "I had
some bills to pay, that I wanted Saturday afternoon off ...
he said to make my time out and I could leave,. . . he said,
`I'll see you Monday."' According to Isidro Rodriguez, who
had worked 3 years: "I told Claude about 11 o'clock that
after all the concrete was poured, I was going to take off,
which I worked, I guess, about, maybe, 10 minutes, 15
minutes after 12 to get done. He said it was all right. When
it was done, I went. He said it was all right " Tony Lopez
had been hired 3 or 4 weeks earlier; he testified: "The job
was going to be finished for that day at noon so that's when
I signed my card my time card and left." He added
Richards was near him and said nothing. And finally,
Pedro Rodriguez, who had also been hired only 2 or 3
weeks before: "I asked him if I can go home and he said
... `It's up to you if you want to go home,' so I filled out my
card and go home." According to each of these men there
was very little, if any, work to be done; no concrete is ever
delivered to a job except during the morning on Saturdays.
There were one or two laborers who remained and
continued whatever work was left with the foreman.
It is a normal practice on these jobs for the men to fill in
their own timecards to record the hours worked; these are
kept in a small pickup truck which Richards drives. In the
usual way, the men went to the truck that day and filled in
their time. It is also the practice that when the men have
so noted their time, the foreman checks the cards for
accuracy and initials each one. Richards did this that day
also; he added no special notation to indicate any
departure from the norm.
I credit the employees. There is simply no rational
explanation of why six men should, at the same moment,
i The last laborer who, according to Foreman Richards, was
working on the St Mary's crew on Saturday morning and quit was
Julio Villaneuva He did not appear at the hearing, and therefore
there is no evidence as to whether he ever returned to the
Company In these circumstances, I shall recommend dismissal
of the complaint with respect to Villaneuva
355
simultaneously decide to abandon their employment. This
was the height of the season for them, the summertime.
The very project to which they were assigned had several
weeks of work ahead, and they were not skilled craftsmen
who could easily change jobs. Moreover, the return of each
of them the very next workday at the regular hour belies
any intent to resign. Richards said that only two of the six
said anything at all on Saturday; he would have it that the
other four left their tools in midworkday without saying a
word. He called these two the "spokesmen" for the rest,
but offered no basis that could have justified the
conclusion on his part. Moreover, it is highly unlikely that
Richards would not have noted something on the
timecards of the men to explain what at the hearing he
insisted was most unusual conduct by them. And despite
his testimony that there was much work to be done, he did
not, as he himself testified, ask the men to stay and help
him at least finish the day's work if they were not going to
return at all. It is virtually impossible to believe that a
foreman in charge of work yet to be done would not say
something in criticism to so large a group who, without
explanation, walk away from a regular assignment.
Simmons, the Union's business representative,
appeared at the jobsite that morning; he stood near the
foreman's pickup truck while the men filled out their
timecards. Richards saw he was there. It may well be that,
among other purposes the men had that morning, they
planned to have lunch with Simmons and talk union
matters with him. In his testimony, Isidro Rodriguez said
Simmons was waiting for them "to go eat our lunch, and he
was going to talk to us, I guess, when we was on our own
time in other words." Any intention the men had to meet
with the union agent that day, rather than point to an
intent to leave the Respondent's employment, instead
supports their testimony of merely asking for the afternoon
off. There would have been little purpose in futhering a
self-organizational campaign if their working conditions as
a group were no longer going to be of concern to them.
It is true that all these laborers regularly worked all day
Saturdays, although the foreman also said that often the
work ended as early as 3 o'clock It was also shown,
however, that on occasion, although not very frequently,
the men for one reason or another did request to be
released Saturday afternoons, and that the Company
agreed. I find that this was one such occasion, that the
men did not tell Richards they were quitting their jobs, and
that in fact Richards saw nothing wrong then in their
leaving early. He gave them permission. I also find that the
Respondent discharged them when they arrived for work
on Monday.
The complaint alleges that they were discharged to curb
the organizational activities then being carried on by the
Union, and I think the evidence in its totality amply
supports the assertion. On August 15 the Respondent,
with a copy of the Union's proposed contract in its hands
and with knowledge that union wage rates would be higher
than what it was paying laborers, polled the-employees to
check on their union sentiments. Mr. Berggren's remarks
to them before the voting made clear he was opposed to
having a union in his Company. The employees voted
heavily against the Union then. The next day the
2In its brief the Respondent seemingly abandoned the
affirmative defense that the employees left voluntarily, and
argues instead that the Respondent had a right to discharge the
men Virtually all the case precedent cited in support deals with
discharges for cause
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent filed a representation petition with the Labor
Board. Its purpose could only have been to confirm
rejection of the Union through unquestionable methods
and preclude another election for a year.
During the week of August 22 to 27, Simmons, assisted
by David Bonilla, appeared at the St. Mary's jobsite
several times and distributed union leaflets and
authorization cards. Foreman Richards saw Bonilla
speaking to the employees in the street and told him "to
get off the site and talk to the men while they were off the
job and not on company time." When Simmons was there,
on August 24, Richards was also present and one
employee even handed him one of the cards the business
representative was distributing. The next day Simmons
returned and collected four cards signed by laborers. He
was back again on Saturday, about 11 o'clock, and waited
near the pickup truck for the men to finish working.
There is an inescapable inference as to what really
happened . The Union persisted in its organizational
campaign notwithstanding the adverse expression of
opinion by the employees in the Company's election. This
ran counter to the Respondent's desire and expectation. A
substantial number of the laborers being so openingly
solicited chanced to ask for Saturday afternoon off that
same week, and, at the moment, Richards thought little of
the fact. On consideration over the weekend the
Respondent decided this was an occasion to rid itself of
these few who seemed vulnerable to the Union's
solicitations . Richards' testimony, which cannot be
credited, that the men had deliberately quit, became the
device for separating the men from their jobs and
weakening the Union's chance of success in a regular
election which the Board might hold on the Company's
petition.
I find on the record in its entirety that the Respondent
discharged Joseph Perez, Tiofilo Ramirez, Isidro
Rodriguez, Pedro Rodriguez, and Tony Lopez on
August 29, 1966, for the purpose of discouraging
membership in the Charging Union, and thereby violated
Section 8(a)(3) and (1) of the Act.
The unlawful discharge of so large a number of
employees so shortly after the election conducted by the
Company on August 15 taints that interrogation with an
illegal purpose in itself, and removes it from any protection
which the Board's Decision in Blue Flash Express, Inc.,
109 NLRB 591, may be read as according isolated
interrogation in other circumstances. I therefore find that
by polling its employees on August 15, 1966, concerning
their union desires, the Respondent coerced and
restrained them in their exercise of the right to self-
organization and thereby violated Section 8(a)(1) of the
statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship 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 the Respondent has committed
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist from such conduct and to take
certain affirmative action designed to dissipate its effect.
The Respondent having illegally discharged five
employees, it must be ordered to reinstate them to their
former or equivalent positions. The Respondent must also
be ordered to make these employees whole for any loss of
earnings they may have suffered in consequence of the
illegal discrimination against them . Backpay shall be
computed in accordance with the rules proscribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. In view of
the nature of the unfair labor practices committed, the
commission of similar and other unfair labor practices
reasonably may be anticipated. I shall therefore
recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon the rights
guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Joseph Perez, Isidro Rodriguez,
Pedro Rodriguez, Tiofilo Ramirez, and Tony Lopez and by
coercively interrogating its employees concerning their
union attitude, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
the Trial Examiner recommends that Harry F. Berggren &
Sons, Inc., Scottsbluff, Nebraska, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because of their exercise of the right to self-
organization.
(b) Coercively interrogating its employees with respect
to their desires for union representation, or in any other
manner interfering with, restraining , or coercing
employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
Laborers' Local Union No. 880, affiliated with Laborers'
International Union of North America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Joseph Perez, Isidro Rodriguez, Pedro
Rodriguez, Tiofilo Ramirez, and Tony Lopez immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
HARRY F. BERGGREN & SONS, INC.
them whole for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner
set forth in "The Remedy" section of this Decision.
(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 records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(c) Post at its central place of business and office in
Scottsbluff, Nebraska, copies of the notice attached hereto
and marked "Appendix." 3 Copies of said notice, to be
7 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
357
furnished by the Regional Director for the Region 17,
after being duly signed by Respondent's representative,
shall be posted by the Respondent immediately upon
receipt thereof, 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 such
notices are not altered, defaced, or covered by any other
material.
(d) Notif ' the Regional Director for Region 17, in
writing, within 20 days from receipt of this Decision what
steps the Respondent has taken to comply herewith.4
be substituted for the words "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
299-352 0-70-24