Perremoud, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1978

236 N.L.R.B. 804 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perrenoud, Inc. and Larry John Kinderman. Case 18
CA 5173
June 9, 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND MEMlBHIRS JE NKINS
ANI) Mt RPI'Y
On April 20, 1977, Administrative Law Judge Mel]-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings. and
conclusions of the Administrativ e I aw Judge. to
adopt his recommended Order, and to modifs the
remedy so that the interest is to be computed in the
manner set forth in Hflorida Sce/l ('orporaliotL 231
NLRB 651 (1977).
Contrary to our dissenting colleague. we agree
with the Administrative Law Judge's conclusion that
Respondent discharged Larry John Kinderman be-
cause he engaged in protected activits i.e., he coni-
plained to the Union that he wsas allegedly not receiv-
ing the correct contract wage scale.
Respondent is engaged in the installation of under-
ground pipe in Wisconsin. Its operation is seasonal,
with peak employment of about 70 employees in the
warm weather, down to about 15 emplovees from
November through March. Respondent was a parts
to a contract with International Union of Operating
Engineers, Local 139B. AFI. -CIO, and Kinderman
was a member of the Union.
While Kinderman was employed as an equipment
operator in June 1 97 6 .1 he complained to Phil Pru-
sak. his business representative, that he was not being
paid the proper operator's scale pursuant to the col-
lective-bargaining agreement.2 Prusak apparently
agreed with Kinderman and said that he would talk
to Jack Parr, another business representative. At a
later unspecified date, but presumably in earl or
All dates hereinafter ire 1976
2Although the Adnministratlve I aw Judge was ataicl of thii testlnlillOni he
found it "somewhat confusing. though n1ot imporlant teo the res.olull-ll iti
this case." and observed that "'i Jinte [Kinderinl;l] was being pli full
operator's scale." As noted iliirtl, anld as more flull discussed hclh-s.
Kinderman's basis for going to the I nion was that he bch liecd trha hlic ias
not receiv ing the correct c'ontratl rale for peralting etquipmcil Irn/ill ait ilt
June until August 14
midsummer, while he was still employed as an opera-
tor., Kinderman spoke to Parr, at which time the lat-
ter said that he was not sure about the scale for
"working at a landfill." On August 14, Kinderman
spoke to Respondent's president. Stephen Perrenoud,
"regarding his wages." Also on August 14, Perrenoud
informed Kinderman that he had no more work for
him as an operator) but Respondent offered to keep
him on the payroll as a truckdriver for $7.50 an hour.
Kinderman accepted Respondent's offer and worked
as a truckdriver until he was discharged.
After he began work as a truckdriver, Kinderman
complained to the Union that he was not being paid
operator's scale. The Union, being unaware that
Kinderilan was now working as a truckdriver, re-
laved these complaints to Respondent's president,
Perrenoud. In fact, on October 1, according to Perre-
noud. Union Representative Parr called and said
that Kinderman had "a grievance . . . and that IRes-
pondent] would have to pay him operator's scale for
all the hours that he worked that summer." Shortly
thereafter. Perrenoud admitted, he approached
Kinderman at a jobsite and harshly criticized him for
going to the Union before talking to Respondent
about his wages. Furthermore, Respondent admit-
tedly discharged Kinderman and told him that he
would never work for him again. These facts clearly
make out a violation of the Act.
We note that the above facts are those credited by
the Administrative Law Judge. Our dissenting col-
league. however, has set out another set of facts upon
which, she asserts, the Administrative Law Judge
made no credibility resolutions. She notes that Perre-
noud testified he also told Kinderman in the dis-
charge conversation that he would not pay operator's
wages for truckdriving; she then finds, through a
self-evidently strained process of reasoning, that
Kinderman's testimony is not inconsistent with this
additional testimony of Perrenoud: and she finds
that employee Zenner. who was credited by the Ad-
ministrative Law Judge on another point, confirmed
the additional testimony. She therefore finds that
Perrenoud's statement that he could not pay
operator's rates for truckdriving stands "essentially
uncontradictcd." In this conclusion, our colleague is
in error for her analysis overlooks the testimony of
Howard Rvan. another employee witness to the dis-
charge incident, whose testimony was also credited
b' the Administrative l.aw Judge. Ryan testified that
he did not hear Perrenoud say that he could not af-
ford to pay operator's wages for a truckdriver.4
Kinderml in greedihar the lparticula r ohb no which he was operating
eqtlipmelt i a, fim41e d t 1 - Auiuvl 14.
4 s hiC Zllfcet nlld.il.ti that RKlin u.\ nrot picscilt for Lill the Perrenoud-
Kinlderilan din ha tir.a c rtl erSalton, Rs.an'S te