Procon, Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1966

161 N.L.R.B. 1304 (N.L.R.B. 1966)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director , in writing , within 20 days from the receipt of
this Decision , what steps Respondent has taken to comply herewith.36
80 In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read • "Notify the aforesaid Regional Director for Region 15, in writing,
within 10 days from the date of this Order , what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS
AND VICINITY, AFL-CIO, AND MEMBERS OF OUR AFFILIATED LOCAL 1846
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT engage in, or induce or encourage any individual employed by
Southern Builders, Inc. of Tennessee , or any other person engaged in com-
merce or in an industry affecting commerce , except Delta Painting Co., Inc.,
to engage in a strike or a refusal in the course of their employment to perform
any services , where an object thereof is to force or require Southern Builders,
Inc. of Tennessee , or any other person , to cease doing business with Delta
Painting Co., Inc.
WE WILL Not threaten , coerce , or restrain Southern Builders, Inc. of Ten-
nessee , or any other person engaged in commerce or an industry affecting com-
merce ; where an object thereof is to force or require Southern Builders, Inc. of
Tennessee , or any other person , to cease doing business with Delta Painting
Co., Inc.
CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS
AND VICINITY, AFL-CIO,
Labor Organization.
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans , Louisiana 70013,
Telephone 527-6391.
Procon , Incorporated and Grover W. Rose. Case 31-CA-283.
November 25, 1966
DECISION AND ORDER
On August 23, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor' prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision . Thereafter , the Respondent filed 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 [Chairman McCulloch and Members Brown and Zagoria].
161 NLRB No. 116.
PROCON, INC. 1305
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 Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner David Karasick at Los Angeles, Cal-
ifornia, on June 21 and 22, 1966 . The complaint 1 alleges that Procon, Incorporated,
herein called the Respondent , had engaged in unfair labor practices within the mean-
ing of Section 8 ( a)(1) and ( 3) of the Act. Following the close of the hearing, the
General Counsel filed a brief; the Respondent did not. Upon the entire record in
the case, and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
The Respondent is now, and has been at all times material herein , a corporation
engaged in construction in various States of the United States including that of Cali-
fornia. During the preceding calendar year , the Respondent performed construction
services in excess of $50 ,000 in the State of California for the Mobil Oil Com-
pany. The Mobil Oil Company maintains facilities within the State of California
and such facilities annually receive from other States goods and materials valued in
excess of $50,000 . I find, as the complaint alleges and the answer admits, that the
Respondent is, and has been at all times material herein , an employer engaged in
commerce and in a business affecting commerce within the meaning of Section 2(6)
and (7 ) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America, Local 606, herein called Local 606, has been at all times material herein
a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The issues
1. Whether the Respondent unlawfully terminated the employment of Grover W.
Rose on January 11, 1966.
2. Whether statements made to Rose by Alfred Der-went, a foreman of the Respond-
ent, in about the middle of December 1965, and by R. D . Wilson, assistant superin-
tendent of the Respondent , on or about December 20, violated Section 8(a) (1) of
the Act.
B. The facts
At all times material herein , the Respondent has been engaged in the construc-
tion of a refinery in Los Angeles, for the Mobil Oil Company. The Respondent is a
member of the National Constructors Association and as such is party to an agree-
ment with the International Brotherhood of Teamsters , with which Local 606 is
affiliated , as well as agreements with the Operating Engineers Union and other build-
ing trades and craft unions. The Respondent pays to Local 606, health and welfare,
vacation, holiday, and pension benefits covering its teamster employees.
Grover W. Rose, a member of Local 606, was dispatched from its hiring hall and
began work for the Respondent as a dump truckdriver on November 15, 1965. After
he had begun work, Rose observed that certain trailers used on the job were being
1 Complaint was issued on March 9, 1966, following the filing of a charge on January 11,
1966, by Grover W. Rose, an Individual.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated by employees who were members of the Operating Engineers Union. Rose
believed that this work belonged to the employees who were members of Local 606
by virtue of the contract between the International Brotherhood of Teamsters and
the Respondent. Within a couple of weeks after he began 'work, Rose complained
about this matter to one Wallace, job steward for Local 606. He also voiced such
complaints to John Masterson, foreman of the Operating Engineers, as well as to
the job steward of that union.
In approximately the middle of December, according to the uncontradicted testi-
mony of Alfred Derwent, Assistant Superintendent Wilson asked Derwent, who was
then foreman of the truckdrivers, if the latter would talk to Rose and get him off
his union complaints which were getting annoying? Later that day or shortly there-
after, Derwent told Rose that his complaints were annoying everybody and that if
he continued, he was liable to lose his job.
On Saturday evening, December 18, 1965, Rose attended a meeting of Local 606.
Wallace, the job steward, was also present along with other members of the local.
During the meeting, Rose protested that the Respondent was violating its contract
in permitting the Operating Engineers to pull trailers and by permitting members of
other craft unions to perform work which rightfully belonged to members of Local 606.
On the following Monday, December 20, according to the undenied testimony of
Rose, Assistant Superintendent Wilson asked Rose what right he had in going to
the union meeting and "blowing his top" about conditions on the job and why
instead he had not come to Wilson and talked about the matter to him. Wilson also
stated that in the future Rose was to come and talk to Wilson if he wanted to discuss
matters relating to the job.
Shortly before January 11, 1966, Wilson told Derwent that there was to be a reduc-
tion in force among the truckdrivers by one man and that Derwent should lay off
whomever he wanted. Derwent decided to lay off John Myers, who was the last truck-
driver to be hired, and so informed Wilson. Wilson agreed. Derwent thereupon
instructed the Respondent's office to make out a termination check for Myers. There-
after, and before the termination went into effect, Wilson told Derwent that he had
canceled the layoff of Myers and was going to leave things as they were.
Shortly thereafter, on January 11, 1966, Rose was terminated upon Wilson's
orders and Derwent was relieved of his duties as a foreman and took Rose's place
as a driver.
About a week after Rose had been terminated, the Respondent began to hire new
drivers who operated the Respondent's trucks and also worked in the warehouse
where members of Local 606 were employed. At the same time, the Respondent
also added owner -operated dump trucks and flat-rack trucks for use in its con-
struction work at the project.
At the time Rose was terminated, the Respondent had five truckdrivers, including
Rose, on its payroll. Of these, Rose and one Ted Ringos each operated a dump truck
while the remaining drivers operated different kinds of vehicles .3 In May or June
1966, a new man was hired to drive the dump truck which until then had been oper-
ated by Ringos and the latter was assigned to drive a flat-rack instead.
C. Concluding findings
The Respondent contends that Rose was laid off because of a reduction in force
and not, as the General Counsel asserts, for reasons violative of the Act. Assistant
Superintendent Wilson testified that the Respondent did not follow seniority; that it
was necessary to reduce the force of truckdrivers by one man; that he decided that
he did not need a foreman; that he terminated Rose, removed Derwent as foreman,
and assigned him to drive in Rose's place; and that he selected Rose because Ringos,
who drove the other dump truck, also performed the duties of lubricating and serv-
icing vehicles operated by the Respondent.
Although Wilson testified that the drivers who were retained on January 11, 1966,
were doing a good job, he did not deny the testimony of Rose, corroborated by
Derwent testified that be was hired on December 6 and that Wilson 's conversation
occurred approximately a week after he was first employed.
s The following truckdrivers were employed by the Respondent as of January-11, 1966:
Driver Vehicle driven Date hired
Ted Ringos Dumptruck November 10, 1965
Grover Rose Dumptruck November 15, 1965
Merile White Flat-rack December 1, 1965
Gordon Jones Flat-rack December 6, 1965
John Myers Pick-up December 29, 1965
PROCON, INC. 1307
Foreman Derwent, that there had been no complaints regarding Rose's ability or
performance as a truckdriver, or the further testimony of Rose that he was a truck-
driver of long experience who could drive virtually any type of automotive equip-
ment. Nor did Wilson explain why he had decided that he could dispense with the
services of a foreman when the uncontradicted evidence shows that, within a week
or two after Rose was terminated, the Respondent enlarged its truckdriving opera-
tions by hiring new truckdrivers and by increasing the number of owner-operated
trucks being used at the project. Although Wilson testified that the Respondent did
not follow seniority, he did not contradict the testimony of Derwent that, shortly
before Rose was terminated, Wilson had instructed Derwent to choose one of the
drivers for layoff; that Derwent had selected Myers, who was the last man hired;
that Wilson had agreed; and that, immediately before Myers was to be laid off,
Wilson had canceled Myers' scheduled termination and stated that he was going to
let things stand as they were. Nor did he explain why, shortly after this incident,
he suddenly changed his mind again and decided on this occasion not to permit
Foreman Derwent to select the employee to be terminated but instead made the
choice himself.4
The undenied evidence in this record shows that in approximately the middle of
December 1965, Assistant Superintendent Wilson asked Foreman Derwent to try
to induce Rose to cease his complaints regarding work assignments to members of
unions other than Local 606; that, pursuant to such requests, Derwent warned
Rose that he was annoying everybody by such complaints and was liable to lose his
job if he kept it up; that a few days later, Wilson questioned Rose's right to express
such complaints at a union meeting and directed him to discuss conditions on the
job with Wilson in the future; that shortly before Rose was terminated, Wilson told
Derwent to lay off one of the truckdiivers and left the choice to Derwent. that
Derwent chose Myers, the last man to be hired, with Wilson's approval; that there-
after Derwent, without explanation, canceled the scheduled termination of Myers;
that, shortly thereafter, Derwent discharged Rose and replaced him by Derwent;
that there had been no complaints regarding Rose's work; that Rose was an experi-
enced truckdriver who could operate any of the vehicles used by the Respondent at
the jobsite; and that shortly after Rose was discharged, the Respondent hired new
drivers to operate its trucks and work in its warehouse and also increased the num-
ber of owner-operated trucks used at the project.
Upon the basis of the foregoing evidence and upon the record as a whole, I find
that Rose was discharged on January 11, 1966, not for the reasons asserted by the
Respondent, but because Rose had voiced complaints that work assigned by the
Respondent to employees who were members of other unions properly belonged to
members of Local 606 and that such assignments violated the provisions of the
collective-bargaining agreement. These complaints were made for the purpose of
preserving job opportunities for members of Local 606 at the construction site,
were a legitimate union activity, and the discharge of Rose because of such com-
plaints discouraged membership in Local 606 within the meaning of Section 8 (a) (3)
of the Acts
Moreover, Rose's complaints also fell within the realm of protected concerted
activity, whether viewed as grievances under the contract which affected the rights
of all employees covered by its terms 6 or regarded as an attempted implementation
of the collective-bargaining agreement, applicable to him and to other drivers as
well, thereby constituting "but an extension of the concerted activity giving rise to
that agreement." 7 Therefore, his discharge for such complaints also constituted an
independent violation of Section 8(a)(1) of the Act.8
In addition, the warning of Alfred Derwent, the foreman of the truckdrivers, to
Rose in approximately the middle of December that Rose' s union complaints were
'On at least one other occasion prior to the discharge of Rose. Derwent had been
permitted to make an Initial recommendation, subject to the approval of Wilson, as to the
termination of a truckdriver.
5 Sandpiper Builders, at at., 152 NLRB 796.
6 New York Trap Rock Corporation etc., 148 NLRB 374.
7 Bunney Bros. Construction Company, 139 NLRB 1516.
s Sandpiper Builders, et al, supra. The foregoing findings are based upon the theory,
advanced by the General Counsel at the hearing, that the reduction in force was valid
but that the selection of Rose was unlawful. I therefore make no determination whether
the record supports the conclusion that the discharge of Rose may be regarded as unlawful
on the additional theory that the reduction in force was In Itself discriminatorily motivated.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annoying everybody and that he was liable to lose his job if he kept them up and
Assistant Superintendent Wilson's interrogation and statements directed to Rose on
December 20 in which he asked Rose what right the latter had in going to the
union meeting on the prior Saturday and complaining about conditions on the job
and directing that in the future Rose was to come and talk to Wilson if he wanted
to discuss matters relating to work likewise violated Section 8(a) (1) of the Act.
IV. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices and
it will therefore be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully discharged Grover W. Rose, it
shall be recommended that it offer him immediate and full reinstatement to his
former or substantially equivalent position of employment, without prejudice to his
seniority or other rights or privileges. It also shall be recommended that the
Respondent reimburse Rose for any loss of pay he may have suffered by reason of
his unlawful discharge by paying to him a sum of money equal to the amount he
normally would have earned as wages from January 11, 1966, to the date of the
Respondent's offer or reinstatement, less his net earnings during that period. Back-
pay should be computed as prescribed in F. W. Woolworth Company, 90 NLRB
289, and interest at the rate of 6 percent per annum shall be added to the backpay
to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 606 is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Grover
W. Rose and thereby discouraging membership in, or activities on behalf of, Local
606, 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. By interfering with, restraining, and coercing its employees in the exercise of
the right guaranteed in Section 7 of the Act to engage in concerted activities for
mutual aid or protection, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in these proceedings and the foregoing findings of fact
and conclusions of law, I recommend that the Respondent Procon, Incorporated,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Directing employees to cease engaging in union or other protected concerted
activities.
(b) Warning employees that they are liable to be discharged if they engage in
union or other protected concerted activities.
(c) Questioning employees concerning their union or protected concerted
activities.
(d) Discouraging membership in any labor organization of its employees by
discriminating in regard to their hire, tenure, terms or conditions of employment.
(e) Interfering with, restraining, or coercing employees in the exercise of their
right to engage in concerted activities for mutual aid or protection as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer Grover W. Rose immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
or privileges, and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him in the manner set forth in the section of
this Decision entitled "The Remedy."
PROCON, INC. 1309
(b) Preserve and, upon 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
amount of backpay due under the terms of this Recommended Order.
(c) Notify Grover W. Rose if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after his discharge from the Armed Forces.
(d) Post at the Mobil Oil Company jobsite in Los Angeles, California, copies of
the attached notice 0 marked "Appendix." 10 Copies of said notice to be furnished
by the Regional Director for Region 31, after being duly signed by an authorized
representative of the Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Company to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in writing, within 20 days from
the date of this Decision, what steps have been taken to comply herewith.ii
e Since notices are customarily framed in the language of the statute and because of
their technical nature are often difficult for employees to understand, I am recommending
that the notice in this case embody the simplified form which appears In the appendix.
11 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 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 the Regional Director for Region 31, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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:
WE WILL NOT interfere in any way with the exercise by our employees of
those rights.
WE WILL NOT discharge our employees or threaten to discharge them for
union activities or other protected concerted activities.
WE WILL NOT direct our employees to stop engaging in union or other pro-
tected concerted activities.
WE WILL NOT question our employees concerning their union or other pro-
tected concerted activities.
WE WILL offer immediately to Grover W. Rose the job he held at the time
he was discharged on January 11, 1966, or a job like it, without loss of
seniority or any rights or privileges and WE WILL give him whatever backpay
he has lost.
WE WILL notify Grover W. Rose, if presently serving in the Armed Forces
of the United States, of his right to full reinstatement upon application in
accordance with the Selective Service Act of the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
All our employees have the right to join any union of their choice and to engage
in union activities, including the right to seek benefits to which they may be
entitled under the provisions of a collective-bargaining contract, and our employ-
ees also have the right not to join a union and not to engage in such activities,
except that the right not to join a union may be affected by a valid contract requir-
ing membership in a union as a condition of employment.
PROCON, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 215
West Seventh Street, Los Angeles, California 19914, Telephone 688-5840.
Patterson Menhaden Corporation , d/b/a Gallant Man, and
Fletcher Miller, Agent ; Surprise , Inc., d/b/a Surprise, and
Fletcher Miller, Agent and Fishermen's Union Local 300, Amal-
gamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO. Case 15-CA-2475. November 28, 1966
AMENDED DECISION AND AMENDED ORDER
On September 29, 1965, the National Labor Relations Board issued
its Decision and Order 1 in the above-entitled proceeding, adopting,
with modifications,2 the findings, conclusions, and recommendations
of the Trial Examiner. By that Decision, the Board found, inter alia,
that Respondent violated Section 8 (a) (1) of the National Labor
Relations Act, as amended, by threatening employees with loss of
future employment if they selected the Union as their bargaining
representative; by creating the impression of surveillance of union
activities; and by threatening to discontinue loans to employees
because of their support for the Union. The Board further found
that Respondent violated Section 8(a) (3) and (1) of the Act by
reducing the wage rates of five employees in retaliation to their
activity in behalf of the Union.
Acting on its own motion, the Board 3 has reexamined its Decision
and Order herein, as well as the entire record and, for reasons stated
below, deletes that portion of the Decision and Order which relates
to the above-mentioned violations of Section 8(a) (1). With respect,
however, to the unlawful wage reductions, we adhere to, as explained
below, our original Decision and Order.
The Board, in adopting in principal part the Trial Examiner's find-
ings, conclusions, and recommendations, found that an antiunion
speech delivered by Respondent-Agent Captain Miller, prior to a
Board-sponsored election conducted on October 18, 1963, violated
Section 8(a) (1) of the Act. The Board, however, failed to note that
1154 NLRB 1795.
2 The Board dismissed the complaint to the extent that it alleged that Respondent
violated Section 8(a) (3) and (1) of the Act by reducing the wages of Supervisor Matthew
J. Hooper and refusing to employ Hooper and Supervisor Desire Bishop, because of their
.activities on behalf of the Union.
'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 [Members Fanning, Brown, and Zagorial.
161 NLRB No. 119.