McCorvey Sheet Metal Works, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1975

216 N.L.R.B. 824 (N.L.R.B. 1975)

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCorvey Sheet Metal Works, Inc. and Arthuro APPENDIX
Torres. Case 23-CA-5176
February 28, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 17, 1974, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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,' as modified
herein.
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, as
modified below, and hereby orders that Respondent,
McCorvey Sheet Metal Works, Inc., Houston, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(a) of
the recommended Order:
"(a) Offer Arthuro Torres immediate and full
reinstatement to his former job or, if it no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, in the manner set forth in
"The Remedy."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I In the section of his Decision entitled "Order" the Administrative Law
Judge inadvertently omitted certain pro forma language from the paragraph
providing for reinstatement This inadvertence is hereby corrected.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employ-
ees in their right to form, loin, or assist labor unions
or to refrain from such activity.
WE WILL offer Arthuro Torres immediate and
full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges, and we will pay him for the
earnings he lost because we wrongfully dis-
charged him, plus interest at 6 percent.
WE WILL NOT discharge or discriminate
against employees who join or assist Sheet Metal
Workers' International Association and its Local
No. 144, or any other union, or who engage in
other concerted activities for their mutual aid or
protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act.
MCCORVEY SHEET
METAL WORKS, INC.
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint in this proceeding on August
13, 1974, after a charge filed on July 8, 1974.1 The
complaint alleged that Respondent had discharged Arthu-
ro Torres on or about May 24, because of his activities on
behalf of Sheet Metal Workers' International Association,
Local No. 144 (Local 144), and/or because he engaged in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. Sections
8(a)(3) and (1) of the Act are thereby said to have been
violated.
I held a hearing in this matter on October 3, 1974, at
Houston, Texas, at which all parties were represented, the
Respondent by its president, Raylnond McCorvey. After
the hearing, Respondent retained counsel who filed a brief
on its behalf. A brief was also received from the General
Counsel. Upon the entire record in the case, including my
observation of the witnesses and their demeanor, I make
the following:
All the events described here took place in 1974
216 NLRB No. 146
MCCORVEY SHEET METAL WORKS, INC. 825
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation which is engaged in
the business of fabricating and installing sheetmetal and
related products. Its principal office and place of business
is in Houston, Texas. During the past year it purchased
goods valued in excess of $50,000 from firms located
outside the State of Texas, and such goods were shipped
directly in interstate commerce to its plant from States
other than Texas. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association and its
Local No. 144 are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
McCorvey is a sheetmetal contractor headquartered in
Houston , who had subcontracts with separate contractors
on two construction jobs in Galveston . The first of these
was the Child Health Center, a new facility , for which it
had contracted to perform all the sheetmetal work. This
job was scheduled to last 1-1/2 to 2 years . Across the street
from the Center jobsite was the existing Borden Building
which was being renovated . Here , Respondent had a
subcontract with a plumbing contractor , Har-Con, to do
certain demolition and installation work.
The record does not disclose whether Respondent was a
signatory to contracts with Sheet Metal Workers Union
Local 54 , in the Houston area, or with Local 144 in the
Galveston area , but it is clear that it operated as a union
shop , observing union wage scales and hiring through the
union hall . For his Galveston Jobs , McCorvey also
complied with a rule of Local 144 , permitting him to bring
in no more than two workers from Houston and hiring all
other sheetmetal journeymen through Local 144.
Torres , the charging party in this case , was a member of
Local 144, and had been hired to work on the Child Health
Center job in February . Charles Sawey , a member of Local
54, was the foreman for the job , and Paul Simpkulet was
the second journeyman from the Houston Local, permitted
to work there . Torres was appointed the steward on the
Center job by Marshall , business agent of Local 144, and
Sawey was informed of the appointment. In April and May
the sheetmetal crew included a fourth man , Meadows, who
was also a member of Local 144 . There was no full-time
sheetmetal worker employed on the Borden job until May
17.
The General Counsel contends that Torres was dis-
charged on May 28 , because Foreman Sawey resented his
protests , both to Sawey and to Local 144's business agent,
that he had permitted work on the Borden job , within the
Union's jurisdiction , to be performed by another craft.
Respondent contends , to the contrary , that Sawey had
Torres discharged because of his poor job performance and
personality conflicts between them.
During April and May, while the four-man sheetmetal
crew was working full time at the Child Health Center job,
there was little sheetmetal work to be done on the Borden
job. liar-Con, the plumbing contractor, was engaged in
tearing down the old air-conditioning system preparatory
to installing a new one. Under the work jurisdictional rules
of the Plumbers Union and the Sheet Metal Workers
Union, it was obligatory that a sheetmetal worker
disconnect the ducts adjacent to air-handling units, which
are large pieces of equipment containing evaporators and
filter coils. After the ducts were disconnected and moved,
the removal of the air-handling units was to be performed
by a composite crew of plumbers and sheetmetal workers.2
Before a full-time sheetmetal worker was hired in mid-May
for the Borden job, Raymond McCorvey had an arrange-
ment with Marshall of Local 144 that whatever sheetmetal
work had to be done there could be done by a member of
the Child Health Center crew.
On three occasions, April 30, May 9, and May 15, Har-
Con's plumbing foreman at the Borden job came over and
asked Sawey to send one of the men over to do some work
within the Sheet Metal Workers jurisdiction, and each time
Sawey said his men were too busy to do the work then.
Paul Simpkulet, one of the crew at the Center job, had
been designated by McCorvey to do whatever sheetmetal
work had to be done at the Borden job, and it appears
from the record that he had gone over there on some
occasions. It is undisputed, however, that on April 30, May
9, and 15, Sawey refused to send him or anyone else over to
Borden because they were then too busy on their own
work. Torres was present on these three dates, when Sawey
told the Har-Con foreman to do the best he could because
he had no sheetmetal workman available. Torres asked
Sawey on April 30, whether it was sheetmetal work that
had to be done at Borden, and Sawey admitted that it was.
On May 9, when Sawey again refused to send anyone
from his crew over to the Borden job, Torres called his
business agent, Marshall, to tell him that other trades were
doing sheetmetal work there. Marshall came to the Center
job that afternoon and attempted to reconcile the differ-
ences between Torres and Sawey. If Marshall also told
Sawey that he had to conform to his Union's jurisdictional
claims , it does not appear in the record. Torres told
Marshall that Sawey's attitude towards him had changed,
and that he thought Sawey was trying to provoke an
argument . Marshall then prevailed on them to shake
hands, but it is clear that Marshall had not satisfied Torres'
concern that sheetmetal work at Borden was being done by
other trades.
The following week, on May 15, the Har-Con foreman
again asked Sawey to send someone over to disconnect
some ducts, but Sawey again refused, saying that the man
designated to go over there was busy. Torres offered to go,
but Sawey said that he was not responsible for the Borden
job and wouldn't have anything to do with it. Torres then
called Marshall who told him to go back to work while he
got the matter straightened out. That evening, Torres went
2 If I understand Raymond McCorvey 's testimony correctly, it is that his
contract with Har-Con did not include remove! of the air-handling units,
although he also seemed to acknowledge that composite crews were
required for that work
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the union hall where he saw Marshall , who told him that
he had talked to Raymond McCorvey , and they had
agreed that someone would be hired to work only on the
Borden Job.
According to Torres , he saw Marshall again at the union
hall on Saturday , May 18. Marshall told him that Sawey
had asked that he be replaced by another worker . Marshall
did not testify , so Torres' report that Marshall said he told
Sawey that Torres was a good worker and he could not
understand why Sawey wanted to get rid of him, is hearsay.
Sawey, however , did testify , and did not deny having told
Marshall , sometime after May 15 , that he wanted to
replace Torres . I am not willing to rely on Torres ' hearsay
testimony that Marshall said he was a good worker, but I
am satisfied that Sawey had informed Marshall , before the
next incident which occurred May 23-24, that he wanted
to replace Torres.
Sawey and Simpkulet attended a funeral the afternoon of
May 23, leaving Torres and Meadows to continue their
assigned work of hanging ducts . According to Sawey, when
he returned the next morning , he found that very little
work had been done . He taxed Torres with falling down on
the job , there was an argument and Sawey then called
McCorvey and got his permission to discharge Torres. He
was paid off early the following week , after some dispute
about whether he had been given adequate notice under
the Union 's rules.
Torres testified, as to his work performance the after-
noon of May 23, that he and Meadows had been hanging
ducts and "had stayed busy." When Sawey accused him of
"taking a nap," he insisted that any complaints about the
work should also be directed at Meadows , since the two of
them had worked together . Torres said that Sawey told him
to leave Meadows out of it , that it was just between the two
of them , and that Torres was hired to work and keep his
mouth shut . Torres said that he then told Sawey that as the
job steward he had to protect his work , that Sawey had a
chip on his shoulder about it , and that it was all uncalled
for.
Both Sawey and McCorvey denied that Torres had been
discharged because of his complaints and inquiries of
Sawey and Marshall concerning sheetmetal work at
Borden being given away to another trade . They testified
that Sawey had complained to McCorvey a number of
times in the past few months about Torres ' work, while
McCorvey said he had mentioned it to Marshall, who
asked him to bear with Torres because he was a member of
the Local's executive board . Torres denied that he had ever
been a member of the board.
The critical question is whether Sawey asked McCorvey
to discharge Torres because of his performance on the job,
or because he resented Torres' persistent questioning of
Sawey's failure to send a sheetmetal worker over to the
Borden job when Har-Con requested one. Both Sawey and
McCorvey were vague and unspecific as to what it was
about Torres' work that they found so unsatisfactory. It is
true that a supervisor may form an impression of an
employee 's job performance without being able to docu-
ment it , particularly in a trade where the work is vaned and
nonrepetitive . Nevertheless , Sawey's objections to Torres'
performance on the job seem especially unsubstantiated
here, being directed mainly at Torres ' attitude and his own
belief that his authority as foreman was being questioned.
It is not that I don 't believe Sawey - undoubtedly there
came a time when Sawey and Torres could no longer work
together harmoniously - but the issue is rather if Sawey
was substantially motivated by Torres ' activity , which is
protected by the Act, in calling Marshall's attention to
infringement of the Union's jurisdictional rights . I find that
Sawey and McCorvey were in fact so motivated . I note that
Respondent was forced to hire a sheetmetal worker for the
Borden job after Torres' complaint of May 15, when it
seems that there was still not enough work to occupy a
man full time , and that Sawey singled Torres out on May
24, for allegedly failing to work energetically the afternoon
before , even though Meadows would have been equally at
fault . The matter is certainly not free from doubt, since it is
notoriously difficult to determine motivation from ambigu-
ous facts. I am convinced , however, on consideration of all
the elements here, that Sawey and McCorvey mutually
decided that Torres had to go because of his insistence that
something be done about the sheetmetal work at the
Borden job. I therefore find that the discharge of Torres
was in violation of Section 8(a)(3) and (1) of the Act.3
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and in
activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sheet Metal Workers ' International Association and
its Local No. 144 are labor organizations within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Arthuro Torres on
May 28, 1974, thereby discouraging him and other
employees from joining or assisting the Union, or from
engaging in other union or concerted activity for the
purpose of collective bargaining or other mutual aid or
protection , the Respondent has engaged 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 within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having discriminatorily discharged Arthuro Torres, I
find it necessary to order the Respondent to offer him
reinstatement, with backpay computed on a quarterly basis
from the date of his termination to the date of the offer of
reinstatement , as prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), plus interest at 6 percent per annum.
I shall also order it to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
3 Illinois Institute of Technology, 201 NLRB 941 (1973)
MCCORVEY SHEET METAL WORKS, INC. 827
ORDER4
Respondent , McCorvey Sheet Metal Works, Inc., its
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Sheet Metal Workers'
International Association and its Local No. 144 or in any
other labor organization of its employees , by discriminato-
rily discharging, or in any other manner discriminating
against any employee in regard to hire , tenure, or any other
term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to join or assist the above-named labor
organization or any other labor organization , to bargain
collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any or all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Arthuro Torres immediate and full reinstate-
ment to his former job, without prejudice to his seniority or
4 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.
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him, in the manner set forth in "The
Remedy."
(b) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the amount of backpay due,
and the right of reinstatement.
(c) Post at its Child Health Center job in Galveston,
Texas, and at its office at Houston, Texas, copies of the
attached notice marked "Appendix." 5 Copies of the notice,
on forms provided by the Regional Director for Region 23,
after being duly signed by an authorized representative of
the Respondent, shall be posted immediately upon receipt
thereof, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
S In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "