Neumann Bros. Paving Corp.

National Labor Relations Board - Board Decisions

Nov 6, 1964

149 N.L.R.B. 571 (N.L.R.B. 1964)

NEUMANN BROS. PAVING CORP. 571
or any term or condition of employment , against any employee because of mem-
bership or nonmembership in any such labor organization.
OGLE PROTECTION SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
Dated------------------- By-------------------------------------------
(dAMIDs Is. OGTA)
NOTE.-We will notify any of the above-named employees presently serving
in the Armed Forces of the United States of their rights to full reinstatement
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948 , as amended , after discharge from
the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 500
Book Building , 1249 Washington Boulevard , Detroit, Michigan, Telephone No.
963-9330, if they have any question concerning this notice or compliance with
its provisions.
Neumann Bros . Paving Corp. and George L. Smith . Case No.
3-CA-2291, November 6, 1964
DECISION AND ORDER
On August 14, 1964, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the complaint in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Examin-
er's Decision and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel. [Members Leedom, Fanning, and
Brown].
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 this proceeding, and hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner., Accordingly, we shall dis-
miss the complaint.
1 The Trial Examiner found that Smith , on December 26, 1963, demanded payment from
Respondent for snowplow work which Respondent had previously paid him (Trial Ex-
aminer's Decision , footnote 9). The record shows, however , that on the foregoing date
Smith demanded payment for other work , referred to as "shovel" work , for which he had
also been paid , rather than snowplow work . This correction does not alter our agreement
with the conclusion of the Trial Examiner concerning Smith's termination of employment.
149 NLRB No. 54.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 28, 1964, by George L. Smith, an individual,
a complaint, dated April 17, 1964, was duly issued alleging that the Respondent,
Neumann Bros. Paving Corp., herein sometimes called the Company, by reason
of its discharge of Smith on December 27, 1963, and its refusal thereafter to
reinstate said employee to his former or to a substantially equivalent position
has engaged in and is engaging in unfair labor practices within the meaning
of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations
Act, as amended. Respondent in its answer to the complaint denied that it
had engaged in the alleged unfair labor practices. A hearing was held before
Trial Examiner Herbert Silberman at Rochester, New York, on June 8 and 9,
1964. Oral argument was - heard at the close of the hearing. Briefs have been
received from General Counsel and from Respondent.
Upon the entire record in this case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a New York corporation, maintains its principal office and place
of businsss in Rochester, New York, where it is engaged in the performance
of paving, excavation, and related services for the construction industry. During
the past year, in the curse and conduct of its business operations, Respondent
performed services valued in -excess of $50,000 for various enterprises, each of
which annually pro4uces and ships goods valued in excess of $50,000 directly
to points outside the.State wherein said enterprise is located. Respondent admits,
and I find, that tl>iE Company is engaged in commerce within the meaning
ofSection 2(6) and (7) of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
The position of General Counsel in this case is that the Company on Decem-
ber 27, 1963, discriminatorily discharged George L. Smith, a member of Local Union
B32 of the International Union of Operating Engineers of Rochester, New York
(herein called the Union) because of his frequent complaints concerning alleged
infractions by the Company of provisions of its collective-bargaining agreement
with the Union.' The Company's principal defense to the complaint is that
Smith was laid off for economic reasons.2
Smith was hired by Gordon C. Neumann, the Company's president, on May 2,
1960. He was not then a member of the Union but joined the Union several
months later.$ The General Counsel's theory is that Smith became a strict
1 The relevant collective-bargaining agreement to which the Company was signatory was
entered into between Aggregate and Excavators Association and the International Union
of Operating Engineers , Local Union 832, 832B , 832A, 832C, Rochester , New York, and
was effective from April 1, 1961, to March 31, 1964.
2 Respondent also
.
contends that Smith 's complaints were for the most part personal and
did not fall within the statutory scope of the term "concerted activities for the purpose
of . . . mutual aid or protection" and, consequently, Smith's discharge for advancing such
complaints was not a violation of the Act. ' See Farmers Union Cooperative Marketing
Aaa'n., 145 NLRB 1 . In view of my disposition of the Issues raised by Respondent 's defense
of economic justification it is unnecessary to decide whether there is any merit to Respond-
ent's alternative defense that Smith had not engaged In "concerted activities" within the
protection of the Act.
3 There is conflicting testimony In the record as to whether Neumann had encouraged
Smith and another employee, Russell Mulley, to join the Union, and had assisted them in
their efforts to acquire membership . This question has no material bearing upon the issues
herein. The relevant agreement contains a union-security clause which requires member-
ship in the Union as a condition of employment and there Is no evidence that, during any
of the times material hereto, the Company employed any operating engineer who was not
a member of the Union, or that the Company or its president, Gordon C. Neumann, bore
any animus toward the Union or hostility toward employees who were members of the
Union.
NEUMANN BROS. PAVING CORP . 573
bookman, that is he sought to enforce the terms of the union contract to its
letter, and that because of the, many complaints he made to Neumann, during
the year 1963 about the Company's alleged violations of the union contract,
Neumann finally terminated his employment on December 27, 1963.4 According
to Smith, during the year 1963, he made the following complaints to Neumann:
1. At the requests of Wilford Rodas and Robert Manning, who were then
employed by the Company as operating engineers , Smith, about November 29
and December 3, 1963, informed Neumann that the two men were entitled to
4 hours' showup time. In each instance Neumann said he would take care of
the matter and the men were paid. Because Smith was required to stop at
the Company's office at the end of each workday, he assumed the task of making
daily reports of the hours worked by the operating engineers on the jobs to
which he was assigned . Therefore, reporting showup time due to Rodas and
Manning was part of Smith's normal routine.5 Smith did not testify, nor is there
any evidence in the record which suggests , that Neumann in any way resented
the fact that Smith made the reports concerning showup time due to Rodas
and Manning.
2. Twice, once in September 1963 and the other time on October 22, 1963,
Smith complained to Neumann about truckdrivers moving a bulldozer on a job-
site . Each time Neumann made no response to Smith's complaint.
3. In November 1963, Smith told Neumann that the latter's brother could
not work (repair) equipment on the job because he was not an operating engineer
and Neumann responded that "his brother was going to continue to work on
the equipment." 6
4. In July 1963, with reference to a situation where a subcontractor em-
ployed a relative who was not a member of the Union to work on equipment
at the jobsite, Smith testified he told Neumann "that Herbie's nephew couldn't
operate or do any more mechanical work on the job" and in response Neumann
"just shrugged me off." 7
5. On many occasions during June, July, and August, 1963, Smith complained
to Neumann about the fact that a truckdriver, Charles Mulley, transported a
small roller on the back of his truck to various jobs and operated the roller
at the jobs, which was work that should have been performed by an operating
engineer.8
6. On June 27, 1963, Smith asked Neumann about money owed to him for op-
erating a snowplow the previous winter and Neumann replied that the girl would
take care of it. Neumann then remarked to Smith, "You guys are always squawking
The General Counsel contends that Smith was a union steward and the complaints he
made to the Company concerning infractions of the contract were made by him in his
capacity as steward. As, for the purposes of this Decision, I an treating all of the conduct
relied upon by General Counsel to have been protected "concerted activity," it is not neces-
sary to determine during which periods of time Smith had been acting as union steward,
which complaints he made in such capacity, or whether any of the complaints would not
have been protected activity if Smith had not made them in the capacity of union steward.
8 Rodas testified that with regard to showup time for November 29, 1963, "I told George
[Smith] about four hours because he took care of our time; he turned our time into the
office at night ." Manning testified that he made a daily report of the time he worked to
Smith because Smith "was the only one from the job that went to the shop every day, so
as a result, he conveyed the time, the hours worked."
8 According to Neumann, on the occasion in question, his brother Clarence was merely
carrying tools out to the jobsite. Neumann denied that Smith had complained directly to
him about the matter, but testified that he had heard about the complaint from his brother
Clarence. Regardless of wheher Smith 's version or Neumann's version of the incident is
correct, there is no dispute that the complaint was brought to Neumann 's attention.
7 Neumann denied that any such complaint had been made to him . Neumann, who testi-
fied in a thoughtful and deliberate manner, impressed me as being a more reliable witness
than Smith . He was clear and precise in his answers to the questions asked him and with
respect to matters as to which he had no recollection he generally was candid in acknowl-
edging such fact. Smith , on the other hand , permitted his interest in the outcome of this
proceeding to lend an appearance of advocacy to his testimony and, I believe, was con-
fused to some extent as to which complaints he made directly to Neumann and which com-
plaints he made to other persons . Accordingly , I credit Neumann's testimony that Smith
did not complain directly to Neumann about the employment of nonunion personnel by a
subcontractor.
8 Neumann testified that Smith made only one or two complaints to him about this matter.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and bitching about something." Smith again asked for this money on December 26,
1963,'and threatened to report the matter to the "State Wage and Hour Law" if he
were not paid .9
7. Several times in July and August 1963 Smith complained that he was not
being paid at overtime rates for driving the Company's pickup truck, outside
his regular working hours, to and from the site of his work at the Victor
High School. Neumann replied that he had taken up the matter with the union
Tepresentative and had been advised that he was not required to pay this claim
.and he was not going to pay it. Smith further testified that the first time
he asked to be paid for such overtime, Neumann remarked, "Well, who says
that, you or the book?" Neumann testified that, by agreement with the Union,
travel time, such 'as claimed by Smith, was to be paid at straight time rates
and not at overtime premium rates. In effect Neumann's testimony was corroborated
by Smith who, upon cross-examination, acknowledged that when he registered
the same complaint to Union Business Representative Victor Poli he was told
-to ignore the matter.10
Smith was terminated on Friday, December 27, 1963. When he reported to
the shop for work that morning he asked Neumann what there was for him
to do and Neumann replied, "Nothing. Go in the office and get your money. I
don't need you any more." After Smith was paid Neumann remarked, "We'll
see what your book can do for you now." The General Counsel relies largely
upon the foregoing statement by Neumann and testimony by Wilford Rodas
and Charlotte Mills to prove that Neumann discharged Smith because of the
latter's efforts to enforce strictly the terms of the union contract.
Charlotte Mills, who is Smith's daughter, testified that in February 1964, at
her father's urging, she telephoned Neumann. Pretending to be employed by
Al Turner, who is in the excavating business, she asked Neumann's opinion
of Smith in connection with a fictitious application by Smith for employment
with Turner. According to Mills, Neumann said that Smith was basically a
good worker but that Neumann understood Turner runs an operation which
is partly union and partly nonunion and as Smith "was a strong Union man
and ran around with his Union book in his hip pocket .. . he thought Smith
would be a potential difficulty in that way." 11
Rodas, who was employed by the Company as an operating engineer for
2 or 3 months prior to December 3, 1963, testified that one evening in November
he met Neumann in' a local tavern. Their conversation turned •to' Smith and
Neumann said that Smith would not be back next spring because "there was
a lot of trouble between the men and he let him go." Neumann also _ said
a Neumann testified that he had an arrangement with his employees whereby the Com-
pany withheld payment to them of money earned for overtime work performed in' con-
nection with snow removal. These sums were paid to the employees when demanded' by
them. The object was to establish a fund for each employee upon which he could draw to
meet emergencies . Russell Mulley corroborated Neumann's testimony concerning the
arrangement., Smith denied that he had entered into any such arrangement with Neumann.
I .do not credit Smith's denial . Apart from the fact that I believe Neumann was the more
credible witness, Smith does not explain the substantial delay in 'the payment to him of
the money he earned for doing snow removal work if the arrangement described by
Neumann did not also apply to him. According to Neumann and to Helen Kitchen, the
Company's bookkeeper, Smith was paid during the summer 1963 for all snowplow money he
earned the previous winter. Nevertheless, on December 26,1963, 'he demanded payment of
the same amount a ,second time and because Smith alone kept a, record of the overtime he
worked , Neumann gave him the amount demanded at the time of his termination the
neat day. .
10 Smith also testified that in May and July 1963, he asked to be paid for, overtime work
he performed prior to 8 a.m. The record does not indicate to what Smith was referring or
whether his claim was contested or whether he was paid the amounts due to him for the
said overtime , work. As the only overtime work to which there is any descriptive refer-
ence in the record relates to Smith's operation of a pickup truck between the Company
office and the jobsite, it is quite possible that this testimony 'regarding the complaints made
in May and July refers to the same complaints, described above, about driving the Com-
pany's pickup truck to and from the site of,tlie'Victor'High School job.
Neumann 's version of the telephone conversation does not differ materially from Mills'
' -'testimony
NEUMANN BROS. PAVING CORP . 575
at another point in their conversation that "George [Smith] was a pretty strict
book man." 12
Gordon C. Neumann testified that the Company had suffered business re-
verses. By December 3, 1963 , for that reason and because of adverse weather
conditions , it had terminated the employment of all its operating engineers other
than Smith and Russell Mulley. According to Neumann, the Company then
no longer had any need for Smith's services 13 but he was reluctant to terminate
Smith prior to Christmas. Therefore, he found miscellaneous work for Smith
to do in the interim and laid him off on December 27. Following Smith's
termination only one operating engineer , Russell Mulley, remained on the Com-
pany's payroll. Neumann testified that, although Smith was a better qualified
operating engineer, he retained Mulley rather than Smith because Mulley had
14 years' service with the Company against Smith's 31/2 years' service and because
Mulley was able to perform satisfactorily all the work required of him. The
evidence shows that since Smith was laid off the Company has hired no other
operating engineer except Robert Manning who worked for a period of 2 weeks
between March 2 and 11, 1964.
The testimony of the Company's bookkeeper, Helen Kitchen, corroborates Neu-
mann's testimony concerning the reduction in the Company's work force. Since
the discharge of Smith, except for a few occasions when temporary employees
were hired to work for short intervals, the total complement, including the book-
keeper and Neumann , has not exceeded 12 employees , which is approximately
one-third the complement of employees maintained by the Company for a large
part of 1963. Furthermore, no operating engineer or other full-time employee
has been hired since December 27, 1963. Although Smith had not been laid
off during the prior three winters, during which times he performed maintenance
and other work in the Company's shop and did snowplowing when such work
was available, and the Company then retained at least two operating engineers
on its payroll , there is nothing in the record to contradict or discredit Neumann's
testimony that adverse business conditions militated against the Company keeping
two operating engineers on its payroll during the 1963-64 winter . Accord-
ingly, I find that the Respondent , for valid economic reasons during the month
of December 1963, reduced its complement of operating engineers to one em-
ployee and has not thereafter ( to the date of the hearing ) increased its complement
of operating engineers . The General Counsel argues that the retention of Mulley
instead of Smith was discriminatory . General Counsel bases his contention on
the fact that Neumann acknowledged that Smith was a more experienced and
versatile operating engineer than Mulley . However, I find Neumann's nondiscrim-
inatory explanation for retaining Mulley instead of Smith entirely credible,
namely, that he preferred Mulley who had 14 years' service with the Company
to Smith who had been employed by the Company only 31/2 years despite Smith's
greater experience.14 Similarly, the fact that Respondent recalled Manning, rath
' At the time of the conversation Smith was still working for the Company and con-
tinued to work for the Company for at least another month. There is no explanation in
the record as to what the trouble referred to was or in what way Smith was involved in
such trouble. With reference to the same conversation Neumann testified, "I don't recall
what was said about George Smith at that time excepting that I told him at the time that
I thought there was a possibility that without work this past winter, because we are going
to be without work, Mr. Smith might not find it acceptable and might get employment
elsewhere." Thus, according to Neumann, in November 1963 he anticipated the possibility
of Smith's termination because of lack of work . ( The Company terminated Rodas and an-
other operating engineer on December 3, 1963. ) Rodas' testimony is not inconsistent.
Rodas not only did not testify that Neumann informed him that the latter intended to
terminate Smith because Smith was a strict Bookman, but testified that Neumann indicated
the existence of any entirely different reason for Smith's termination. Accordingly, Rodas'
testimony does not support the General Counsel's thesis that Neumann discharged Smith
because of the latter 's complaints.
13 From April 1963 until December 3, 1963, Smith had been working steadily at a job
which the Company was doing at the Victor High School. All work by the Company at
this job was discontinued on December 3.
14 General Counsel contends that Mulley was receiving $3.85 an hour for operating a back-
hoe when the union scale was $4 and this was a reason Respondent retained Mulley in-
stead of Smith. Assuming that Respondent was paying Mulley less than Smith for doing
the same work (a fact which General Counsel has not proved by a preponderance of the
evidence) that would further indicate that the Company retained Mulley for a valid eco-
nomic reason , namely, that it was paying Mulley less than Smith , rather than in order
to discriminate against Smith because of his alleged concerted activities.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er than Smith, to work for a period of 2 weeks in March 1964 does not establish
an act of discrimination against Smith. No evidence was adduced to show any
policy or practice on the part of the Company regarding recall of former em-
ployees for temporary work. Without more, I cannot draw any conclusion adverse
to the Respondent by reason of its failure to have offered Smith 2 weeks' temporary
employment in March 1964.15
Although the credited evidence relied upon by the General Counsel indicates
that Neumann considered Smith to be a "strong" union man, there is no proof
in this record that Neumann was opposed to the Union or objected to union
activities by the Company's employees. The General Counsel argues that Smith
was discharged because of his complaints to Neumann. Although Neumann
might have been irritated by some of Smith's complaints, the evidence does
not establish that Neumann was disposed to terminate Smith for that reason. Fur-
thermore, I find that Respondent for valid economic reasons during the month
of December 1963 reduced its complement of operating engineers to one and
its retention of Russell Mulley, an employee with 14 years' seniority with the
Company, who also was a member of the Union, instead of Smith, who had
only 31/2 years' service with the Company, has not been proved to have been
discriminatorily motivated. Accordingly, I find that General Counsel has not
proved by a preponderance of the evidence that Smith was terminated on Decem-
ber 27, 1963, for discriminatory reasons.
CONCLUSIONS OF LAW
Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged
in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, I recommend that the complaint be dismissed
in its entirety.
15 In reaching this conclusion I am cognizant of the testimony of Rodas that in November
1963 Neumann told him that Smith would not be back in the spring.
Interurban Gas Corporation and Donald Gillingham . Case No.
7-CA-3202. November 6, 1964
SUPPLEMENTAL DECISION AND ORDER
On January 29, 1962, the Board issued a Decision and Order in
the above-entitled case ,1 which was enforced by the United States
Court of Appeals for the Sixth Circuit by a decree entered on May 27,
1963.1 Thereafter, pursuant to a backpay specification and ap-
propriate notice issued by the Regional Director for the Region 7, a
hearing was held for the purpose of determining the amount of back-
pay due to Donald Gillingham, the Charging Party in this case.
On March 10, 1964, Trial Examiner C. W. Whittemore issued his
attached Supplemental Decision, recommending the award of a spe-
cific amount of backpay to Gillingham, as of September 30, 1963,
plus an undetermined amount from that date to date of a valid offer
of reinstatement. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and a supporting brief. It
1135 NLRB 604.
2 N.L.R.B. v. Interurban Gas Corporation, 317 F. 2d 724.
149 NLRB No. 57.