R. W. Little, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1973

201 N.L.R.B. 454 (N.L.R.B. 1973)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. W. Little, Inc. and Donald R. Hightower and
Robert J . Robinette . Cases 21-CA-10189 and
21-CA-10292
January 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 22, 1972, Administrative Law Judge*
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering 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
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.
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 and
hereby orders that Respondent, R. W. Little, Inc.,
San Diego, California, its officers , agents, successors,
and assigns , shall take the action set forth in the said
recommended Order.
* The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
i Respondent excepts to minor discrepancies between the Administrative
Law Judge 's findings and the record which we find to be immaterial to our
conclusions herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Trial Examiner: On December
14, 15, 16, and 17, 1971,' and January 13, 1972, the Trial
Examiner presided over a hearing at San Diego , California,
to try issues raised by a consolidated complaint issued on
October 15,2 alleging that R. W. Little, Inc.,3 violated
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended (hereafter the Act), by discharging and
subsequently failing or refusing to recall Robert J.
Robinette because he made demands that the Company
comply with the terms of a collective-bargaining agreement
between the Company and Local 89, Laborers Internation-
i Read 1971 after all subsequent date references omitting the year
Y The charge in Case 21-CA-10189 was filed by Hightower on August 5
and duly served on the Company. The charge in Case 21-CA-10292 was
filed by Robinette on September 16 and duly served on the Company.
•4 Hereafter called the Company
al Union of North America, AFL-CIO (hereafter Labor-
ers), and by discharging and subsequently failing or
refusing to recall Donald R. Hightower because of his
conduct as a steward and grievant vis-a -vis enforcement of
the Company-Laborers agreement . The complaint also
alleged that the Company committed an independent
violation of Section 8(axl) of the Act by its interrogation
of Hightower concerning the identity of employees
complaining of company violations of the Company-
Laborers agreement and the substance of their grievances,
and by directing Hightower to bring such grievances to the
Company rather than to the Laborers.
The Company denied the material allegations of the
complaint and the commission of any unfair labor
practices . The Company also denied that Robert L.
Reynolds was a supervisor and agent at times material to
the case .4
The issues joined by the parties and litigated at the
hearing were : ( 1) whether Reynolds was a supervisor and
agent of the Company acting on its behalf at times
pertinent to this proceeding ; (2) the substance of the
remarks made by Little in the course of his allegedly
intimidating conversation with Hightower ; (3) whether the
remarks made violated Section 8(a)(1) of the Act; (4)
whether Robinette was discharged by the Company and
never subsequently offered reemployment and, if so,
whether a reason therefor was his demands that the
Company comply with the Company-Laborers agreement
or for cause ; (5) whether Hightower was discharged by the
Company and never subsequently offered reemployment
and, if so, whether a reason therefor was his activities as
the Laborers job steward and his grievance activity or for
cause ; and (6), if (4) and (5) are answered affirmatively,
whether by such conduct the Company violated Section
8(a)(3) and (1) of the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to adduce evidence , examine and
cross-examine witnesses, argue , and file briefs . Briefs had
been received from the General Counsel and the Compa-
ny.
Based on his review of the entire record ,5 observation of
the witnesses , perusal of the briefs and research , the Trial
Examiner enters the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges , the answer admits, and I find that
the Company at all times material was an employer
engaged in commerce in a business affecting commerce
and the Laborers was a labor organization as those terms
are defined in Section 2(2), (5), (6), and (7) of the Act.
a The Company conceded that R W . Little was the Company's president
and its supervisor and agent acting on its behalf at all times pertinent
5 The record is corrected as follows : p 65. 1 4-change "seven" to
"eight", p 124. 1 4-change "sandblasters" to "laborers "
201 NLRB No. 71
R. W. LITTLE, INC. 455
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a contractor engaged in sandblasting
and painting operations , primarily in the San Diego area,
where it maintains its headquarters and shop facilities. In
times previous most of its work was limited to sandblasting
and was performed on highways, overpasses, bridges,
commercial buildings, private homes, and for small items
at its shop, with a small fraction performed in shipyards.
As time has gone on, it has steadily increased its shipyard
work to the point where such work now constitutes a major
portion of its business . It has also increased the amount of
painting it does. During the calendar years 1970-71, the
Company had collective-bargaining agreements with the
Laborers, Painters, Carpenters, Machinists, and Operating
Engineers.6
The Company's contracts with three of the organiza-
tions-the Laborers, Painters, and Carpenters-cover
sandblasting work. In the early years of its operations,
when the Company primarily was engaged in sandblasting
"uptown ," it had contractual relations solely with the
Laborers. As time went on and the Company expanded
both its sandblasting and its painting operations "uptown,"
it signed a contract with the Painters . Since both the
Painters and Laborers contracts covered sandblasting
work, a jurisdictional dispute arose. This was resolved by
an agreement to a composite crew, with the Company
attempting to observe a ratio of approximately one laborer
to three painters.
As it expanded into shipyard work, the Company
encountered jurisdictional difficulties with the Carpenters.
The Carpenters asserted jurisdiction over all sandblasting
work in the shipyards as well as certain painting work
(hulls, below the water line). Insofar as sandblasting in the
shipyards was concerned, the Company resolved the
dispute by securing agreement by the Painters and
Carpenters that all sandblasting involving the use of fixed
equipment would be performed by company employees
covered by the Carpenters contract (hereafter called
waysmen), and all sandblasting involving the use of
portable equipment would be performed by company
employees covered by the Painters contract (hereafter
called the painters). As a practical matter this meant the
cession of practically all sandblasting work in the shipyard
to the painters, inasmuch as practically all the sandblasting
work performed by the Company within the shipyards
involves the use of portable equipment. The painting
dispute was resolved along the lines of the Carpenters
claim.
6 The Company was signatory to both "shipyard" and "uptown" (non-
shipyard) agreements with the Painters ; a "shipyard" agreement only with
the Carpenters and Machinists; and an "uptown" agreement only with the
Laborers.
The Laborers traditionally did not have work jurisdiction in the
shipyards and did not contest their exclusion therefrom . Little testified that
John Felix, the Laborers business manager , acknowledged the lack of any
Laborers work jurisdiction within the shipyards.
8 Hightower , Robinette , other employees, the Company's shipyard
foreman (Richard Allds), Little, Reynolds, and Painters Business Repre-
sentative Palm all confirmed that laborers , painters, and waysmen all work
Despite the claims of the Painters and Carpenters (and
Laborers acquiescence thereto),7 to exclusive jurisdiction
over sandblasting work in the shipyards and agreement
between those two unions and the Company to the division
thereof, throughout the period the Company has conduct-
ed shipyard operations the Carpenters and Painters have
tolerated the performance at the shipyards of sandblasting
work by laborers employed by the Company and covered
by the Laborers contract.8
Thus by mid-1970 the Company was conducting sand-
blasting operations at the shipyards, "uptown," and at its
shop utilizing laborers , waysmen , and painters in all three
areas for its performance with pay therefor determined by
the respective contracts .9
B. The Supervisor-Agent Issue
Little testified that at times pertinent to this proceeding
Reynolds was the Company's plant superintendent, had
authority to purchase supplies, bid on prospective jobs,
hire and fire employees, and assign them to jobs. Reynolds
corroborated Little's testimony and described specific
instances in which he hired employees, laid off employees,
recalled employees, decided employee work schedules,
assigned employees to jobs, bid on jobs, and processed
employee grievances.
On the basis of that testimony, the Trial Examiner finds
and concludes that Reynolds at all times pertinent was a
supervisor and agent of the Company acting upon its
behalf, as those terms are defined in the Act.
C. The Alleged 8(a)(1) and 8(a)(3) Violations
1. Hightower & Robinette's work history
Robinette was hired by the Company in May 1969 as a
laborer-sandblaster and became a member of the Laborers
in July 1969. His employment terminated on March 29.
Hightower was hired by the Company in October 1968 as a
laborer-sandblaster and became a member of the Laborers
in December 1968. Hightower was appointed by the
Laborers as its shop steward at the Company in August
1970 and remained in that capacity until his employment
terminated on April 19.
During the last 6 months of his employment, Robinette
spent 75 to 80 percent of his time sandblasting, 5 percent of
his time pot-tending,10 and 12 percent in general labor.
During the last 6 months of Hightower's employment, he
spent 75 percent of his time sandblasting, 15 percent pot-
tending and 10 percent at general labor.
Both Robinette and Hightower worked within the
shipyards, "uptown" and in the shop. Robinette spent most
side by side performing all aspects of sandblasting work at the shipyards.
Allds testified he tried to observe reasonable ratios between the painters,
waysmen , and laborers doing sandblasting and painting at the shipyards,
i.e . three painters, two waysmen , one laborer
9 Little testified without contradiction that painters were paid $8 03,
laborers, $5 63 and waysmen, $4 52 per hour (including certain fringes) for
sandblasting work at times pertinent to this proceeding.
10 Pot-tending consists of filling up the pots with sand , dragging lines
behind the nozzleman. and generally assisting the nozzleman in the
performance of the sandblasting, or filling the painter 's pots with paint and
assisting them with lines. etc
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his time with the Company working in the shop
sandblasting small items . ii Hightower spent most of his 3
years with the Company working as a nozzleman or pot-
tender at the shipyards, particularly in the latter part of his
employment.
2. The first Hightower complaint
While the number of painters and waysmen employed by
the Company steadily expanded with the increase in the
Company's shipyard work, the number of laborers em-
ployed by the Company remained relatively constant. At
first , the Company only employed waysmen in the
shipyards 12 but as time went on it increased its use of
waysmen both at the shop and in "uptown" work.13
The increasing use of waysmen for sandblasting and
corresponding decrease in laborers' assignment thereto did
not escape the notice of the laborers' steward , Hightower.
In approximately October 1970, Hightower complained to
John Felix, business manager of the Laborers, that the
Company was hiring "nonunion" 14 employees for sand-
blasting while laborers were short on workweeks . Hightow-
er identified the "nonunion" employees as those perform-
ing sandblasting of a ship at the 32nd Street Naval Station
in San Diego. Felix called Little for an explanation. Little
replied that he was not using nonunion men, he was using
waysmen supplied by the Carpenters. Little stated that the
job was a National Steel Co. job which National Steel
could not perform because it was on strike , and that he had
received permission from Business Representative Parker
of the Carpenters to do the job provided the Carpenters
waysmen inactivated by the strike (other crafts were
striking) were assigned to perform it. Felix stated he
understood the situation and the Laborers couldn't do
anything in any event, since the Laborers did not have
work jurisdiction within shipyards.
Shortly after the Little-Felix conversation, Reynolds
asked Hightower at the jobsite if he had filed a grievance.
Hightower replied that he had. Reynolds then stated that
he knew that Hightower had filed a grievance because he
had just received a call from Little advising him. Reynolds
closed the conversation with the remark that "if you don't
like what is going on, you can quit."
3. The second Hightower and the first Robinette
complaint
In that same month , Hightower asked Reynolds if the
laborers were supposed to be paid double time for Sunday
work.15 Reynolds replied that he would look it up.
11 Robinette spent his first year in the shop and was taught to sandblast
by the Company He also spent the last 3 or 4 months prior to his
termination working at the shop The interim period, approximately 3
months, he worked both at the shipyards and "uptown."
12 The Company was not signatory to the Carpenters "uptown"
agreement
13 A ready explanation appears when one notes the waysmen are paid
substantially less than painters or laborers for sandblasting work.
14 Waysmen
IS Hightower testified the laborers had been grumbling over receiving
only 1-1 /2 time for Sunday work.
16 The Company-Laborers contract calls for the payment of double time
for Sunday work , pay at the rate of the highest classification worked for
each workday (Nozzlemen scale is $5.28 , pot-tender $5.02 , and general
On approximately November 2, 1970, Robinette ap-
proached Little in Reynolds' office. Robinette asked Little
why the laborers were not receiving double time for
Sunday work . He also asked why they were not receiving
the rate of the highest classification in which they worked
each workday , and minimum call-in pay.16 Robinette also
asked whether he might have a week off. Little granted
Robinette 's request for a week off, said he didn 't know the
answer to the various questions raised by Robinette, but
stated that he would have answers upon Robinette's return
from his vacation . Little at no time subsequent provided
Robinette with an answer to his questions.
Later in November 1970, Hightower and Robinette were
called by Reynolds into his office. Reynolds stated that in
the future the Company intended to go by the book and it
would not be necessary for Robinette and Hightower to
take anything to the Union . Hightower asked if this meant
the laborers would receive double time for Sunday work
and pay for a full day at the rate of the highest
classification in which worked on any workday. Reynolds
replied in the affirmative.
Commencing November 22, 1970, the laborers were paid
double time for Sunday work. No retroactive payments
were made.17
4. The Robinette layoff
On March 29, the Company laid off three laborers-Bac-
quial , Ortiz, and Robinette .i$ At that time the Company
employed nine laborers . The nine laborers were Bacquial,
Belt, Bendixen , Hightower, Ludwig, Nelson , Ortiz, Robi-
nette , and Vandenberg. Vandenberg was the most senior
laborer with a hiring date of July 1965. Ludwig and Nelson
were next each with hiring dates of February 1966.
Bendixen followed with a hiring date of September 1966.
Then came Belt with a hiring date of December 1967, Ortiz
with a hiring date of July 1968, Hightower with a hiring
date of October 1968, Robinette with a hiring date of May
1969, and finally Bacquial with a hiring date of January
1970. Hightower was passed over for layoff at the time
Bacquial , Ortiz, and Robinette were laid off, even though
he was the third junior laborer, because the laborers'
contract required that the laborers be notified in advance
in writing before a steward was subject to layoff as a junior
employee and the Company failed to comply with this
notice condition until April 2.
5. The second Robinette complaint
On March 29, immediately after receiving word of his
laborer $4.83), 4 hours minimum pay if report for work and work less than 4
hours, 8 hours minimum pay if work more than 4 but less than 8 hours and
2 hours pay if an employee shows up at the starting time set by the
Company and no work is provided (See art. IV. D; art XI I , H,3 and 7. art.
XIII, A,2, art . XVI, C, and E .3; and G .C. Exh 2-A.)
17 Reynolds testified without contradiction that subsequently the
Company reached an agreement with the Laborers wherein the Laborers
waived payment of double time for Sunday work and agreed to the payment
of time and a half for Sunday work.
19 Reynolds and Little planned to lay off Hightower at the same time but
were precluded from doing so by the necessity to give prior written notice to
the Laborers because of Hightower's status as a steward , which they had
neglected to furnish.
R. W. LITTLE, INC.
layoff by telephone from Reynolds, Robinette telephoned
Hightower . He asked Hightower to file a grievance on his
behalf, alleging that the Company was retaining a
nonunion laborer (Vandenberg) 19 and junior waysmen to
do laborer work at the time of his layoff. Hightower agreed
to see what he could do.
On March 31, Hightower talked to Reynolds regarding
Robinette's grievance. Reynolds denied that Vandenberg
was nonunion and that employees with more recent hiring
dates than Robinette's were doing laborers' work.
6. The third Robinette and third Hightower
complaint
On April 1, Hightower and Robinette visited the Laborer
office. Hightower asked Business Representative Bill
Uslano to check Vandenberg 's union status and informed
Uslano of Robinette's complaint. He also spoke of filing a
grievance on Robinette's behalf and his own for pay prior
to November 22, 1970, for work performed on Sundays, for
work performed which was paid at lower rates even though
sometimes during the workdays they worked at higher
rated classifications, for showup pay and for not working
the steward in the manner specified by the contract.20
Uslano stated that he could and would investigate the
allegation that Vandenberg was performing laborers' work
without holding a membership card but stated that the
other questions raised by the two would have to be
discussed with John Felix, the Laborers business manager.
Hightower and Robinette waited for a period but were
unable to make contact with Felix.
7. The alleged intimidating interrogation of
Hightower
The next day, April 2, Little called Hightower into his
office. No one else was present. Little asked Hightower
why he was running to the Union. Hightower stated that he
had gone there to file a grievance. Little said he could not
believe any of the laborers were unhappy. Hightower
stated that Little would be surprised. Little asked who the
grievants were. Hightower responded that it would not do
Little much good to know. Little then stated that the
Laborers were tired of Hightower coming in with griev-
ances, to which Hightower responded that he would
continue to take grievances as long as he had any to take.
Little closed the conversation with the comment that
Hightower could come to him with grievances anytime
instead of running to the Union.21
19 Vandenberg had dropped his laborers membership and held off
reinstatement in expectation of membership in and coverage by the
Painters.
20 Art . 1, sec. B , subset . 6, provides that the steward shall remain on the
job so long as there is work in a classification which he performs capably.
From time to time Hightower had had short layoffs (a day or two) while
other laborers were retained to perform work he could have handled
21 Little denied any conversation with Hightower on April 2 . He stated
the last conversation he held with Hightower occurred in mid -March; that
he called Hightower to his office (with no one else present) told Hightower
that he had heard some of the laborers were unhappy about the shipyard
work , that he didn 't know what the problem was, and would like to get to
457
8. The Hightower layoff
Hightower worked in the shop on both April 1 and 2. He
left early on April 2 pleading illness . Despite the fact he
sent a letter to the Laborers on April 2 advising the
Laborers of his intent to lay off Hightower , on April 4, 5, 6,
and 7 Reynolds telephoned Hightower to dispatch him to
job assignments . On each of those dates , Hightower
informed Reynolds he was still ill and unable to work. On
the latter date, Reynolds instructed Hightower to tele-
phone him when he was recovered and ready to return to
work.
On April 19, Hightower called Reynolds and informed
Reynolds he was recovered and ready to work. Reynolds
replied that he could not use Hightower any longer.
Hightower asked him why and was informed that work was
slack, Reynolds did not have any work for Hightower but
he would call him if business picked up and work became
available.
9. The processing of the third Robinette-
Hightower grievances
In the interim, between April 2 and 19, Robinette and
Hightower spoke to the Laborers president, Solomon
Johnson, at the Laborers office, and provided him with
check stubs and work summaries and a claim for wages
allegedly due under the contract. Both Little and Reynolds
were made aware of the pending grievances of Hightower
and Robinette by Jerry Nierengarten , a Laborers business
representative. In approximately mid-April, Nierengarten
furnished Reynolds and Little with the papers setting out
Hightower's and Robinette 's claims . Reynolds in turn gave
these papers to the Company's secretary-bookkeeper,
Sharon Pence , for comparison and validation with compa-
ny records.
10. The April 27 Reynolds-Hightower
conversation
On April 27, Reynolds telephoned Hightower and asked
him what he was doing. Hightower stated he was going to
the hospital, his daughter had been operated on. Reynolds
said he was sorry to hear it, that he had a claim for
disability involving Hightower and wanted to know what it
was about. Hightower replied that he had been off 2 weeks
sick and had applied for disability pay from the State.
(Hightower received disability pay from the State of
California for the period April 4-18). Reynolds then stated
to Hightower as follows:
You know, you and Robinette would still be working
down here if you had not filed these grievances against
the bottom of it. Little stated that Hightower replied the laborers felt they
were not getting a fair share of shipyard work , that he responded with the
comment that the laborers were luck) to be in the shipyard at all, since the
Laborers did not have any jurisdiction in shipyards . Little stated he also
asked Hightower whether there was anything else, to which Hightower
responded that he had other things he would like to discuss, but only in
private. to which Little rejoined he was available to meet with Hightower
anytime to go over any problems . Both the testimony of Little and the
testimony of Hightower is credited; the Trial Examiner finds that two
conversations took place-one in mid -March and another on April 2,
during which the foregoing statements were made (Hightower was sure of
the April 2 date because that was his last day of employment.)
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us. I don't understand you guys. Of the amount of
money you filed for, you'll be lucky to get $500. They
would like to kill you. I would still like to be your
friend.
Hightower replied fine, no hard feelings.22
11. The recalls and new hires after the layoff
Both Bacquial, the junior laborer, and Ortiz, the third
most junior laborer, were recalled by the Company on
April 5. A new laborer, Cabazuela, was hired by the
Company in May. On June 21, the Company hired
Beckett ; on July 14 it hired Frank; and on October 6 it
hired Mamede; all three were classified as waysmen. On
October 28, the Company hired Gallas; on November 1 I it
hired Dibella; these two were classified as laborers. All
eight men just named worked continuously for the
Company from the date of their recall or hire through the
balance of the year, performing work of the types regularly
performed by Hightower and Robinette prior to their
layoff. In addition, a number of nonunion employees were
hired for short periods of time between April 19 and
December 31 to perform work Hightower and Robinette
had performed prior to their layoff. A number of
employees hired subsequent to the original hiring dates of
Hightower and Robinette and classified as waysmen or
painters but assigned primarily to sandblasting, pot-tend-
idg, and general labor duties worked continuously for the
Company over this same time period.
Neither Robinette nor Hightower was recalled by the
Company at any time subsequent to their layoff.
It is clear that following Robinette and Hightower's
layoff the Company expanded its work force, including an
expansion of its laborer work force from 9 to 10 (with the
recall or hire of 5 laborers junior to Hightower and 4
laborers junior to Robinette), without at any time carrying
out Reynolds' April 19 promise of recall to Hightower or
the promise expressed in his April 2 letter to the Laborers
that the laidoff laborers would be recalled when work
expanded.
12. The Company's justifications
The Company attempted tojustify its layoff of Robinette
and Hightower and failure at any time subsequent to offer
them recall with testimony that Hightower was a "fair"
sandblaster who had ruined several pieces of work
immediately prior to his last day at work at the shop and
testimony that Robinette also was only a "fair" sandblaster
who gave minimum performance.
Shop Foreman Maggert testified that on April 1 and 2
Hightower worked in the shop; that the Company had to
reduce the labor charge on a boat because the time spent
blasting by Hightower exceeded the time it should have
taken (the customer was charged for 45 minutes work but
the actual time Hightower spent on the job was 5 hours);
Maggert also testified that dunng the April 1-2 time
period, Hightower did a poor job on blasting a wooden
sign , some rattan furniture and broke a pane of glass, all of
which required restitution to customers . Maggert further
testified that he asked Reynolds to assign Hightower to
outside sandblasting rather than at the shop.
Hightower testified he was never reprimanded or
criticized about that work or any preceding work; that he
had worked mostly outside the shop and done little
shopwork . Robert Brennan , a painter-sandblaster , testified
that he at one time blasted the wrong house, but received
no reprimand; that he had done the same thing with the
wrong boat and had received no reprimand. Donald
Bendixen , a laborer-sandblaster, testified that he and
Vandenberg, another laborer-sandblaster, caused several
thousands of dollars in damages when they broke a
substantial number of windows while blasting a building.
He stated neither was reprimanded . Bendixen also testified
that he damaged a radiator while blasting in the shop, but
was not reprimanded.
Maggert was unable to testify concerning Robinette's
shop work (where Robinette worked most of his time in the
Company's employ) because he never supervised Robi-
nette's work (he became shop supervisor about the time
Robinette was laid off). No other witnesses were produced
to state there was any defect in Robinette's work
performance other than general and nonspecific statements
by Little and Reynolds that Robinette did not strain
himself working.
The testimony of Maggert, Reynolds, and Little concern-
ing the work shortcomings of Hightower and Robinette is
not only self-serving, it cannot be reconciled with Rey-
nolds' efforts to dispatch Hightower to company jobs
outside the shop subsequent to his April 1 and 2 shopwork,
the failure of Maggert, Reynolds, or Little to criticize
Hightower for his April 1 and 2 work performance.
Reynolds' advice to Hightower that he was laid off for lack
of work, and the Company's acceptance of more serious
work deficiencies by other employees. The record is
completely devoid of any evidence that any company
official ever criticized Robinette's work and he was also
told that his layoff was for lack of work (and to file for
unemployment compensation).
With respect to a second company contention, that the
change in the proportions of its work from a preponder-
ance of "uptown" work to a preponderance of shipyard
work necessitated a reduction in the size of its laborer
workforce, this is refuted by the Company's expansion of
that work force following the March 29-April 19 layoff, it
does not explain why five laborers junior to Hightower and
four laborers junior to Robinette were retained or hired,23
22 Reynolds stated that he telephoned Hightower on April 27, but that he
only told Hightower his check for his wage claim grievance was ready, and
denied that he made the quoted statement Reynolds denial is discredited
While checks are dated April 27, the receipts Hightower and Robinette
signed for them when they were turned over to them at the Laborers office
are dated April 29, and Johnson testified the latter date is the date the
checks were given to them, which supports a finding that it was on April 29,
in another telephone conversation with Hightower , Reynolds informed
Hightower that his and Robinette 's checks were ready ( Robinette testified
Hightower telephoned him on April 29 to inform him Reynolds had advised
him their checks were ready , that the two first went to the Company's
office, where Hightower endorsed a check made out to him over to Little to
satisfy his indebtedness to Little, after which he and Hightower went to the
Laborers office and received one check each , after signing a receipt for
same)
23 In the Company's April 2 letter to the Laborers it indicated
R. W. LITTLE, INC. 459
and is negated by unrefuted evidence that laborers were
continuously employed at the shipyards and uptown on the
Company's work in an agreed ratio (as well as at the shop),
and evidence that on past occasions several of its laborers
transferred with apparent ease to Painters membership and
contract coverage24 and the Company 's ability to place its
new hires under whatever contract it desired.25
D. Analysis and Conclusions
1. The alleged independent 8(a)(1) violation
The Trial Examiner therefore finds and concludes that
while Little did seek to ascertain the identity of the
grievants, the substance of their grievances and did suggest
that Hightower bring such grievances to him, Little was
doing no more than the contract permitted and sound
labor relations encourages; i.e., expeditious processing and
settlement of grievance disputes.
The Trial Examiner therefore shall recommend that
those allegations of the complaint setting forth an alleged
independent violation of Section 8(a)(1) of the Act be
dismissed.
The Trial Examiner has entered findings that in mid-
March Little and Hightower had a conversation wherein
they discussed the fact that some of the laborers were,
unhappy over the Company's assignment of what High-
tower felt to be a disproportionate share of sandblasting,
pot-tending, and general labor work in the shipyards to
nonlaborers and Little indicated the laborers should be
grateful to get any work at all in the shipyards, Little
ending the conversation with an invitation to meet with
him anytime to go over any problems. The Trial Examiner
has also entered findings that on April 2 another
conversation occurred between Hightower and Little,
wherein Little questioned Hightower over his reasons for
going to the Laborers, sought to ascertain which of the
laborers were aggrieved, advised Hightower that the
Laborers were not happy with his grievances, and
concluded with the suggestion that Hightower come to him
and seek to adjust grievances before going to the Laborers
with them.
While article 1, section B, subsection 6, subsubsection B
of the Laborers contract directs the steward to notify a
union representative of a grievance and provides the latter
will take it up with the employer, article 5, section A,
subsection 1 of the same contract provides that either the
craft steward or the union representative on receiving
grievances may take up a grievance with the employer.
Little's remarks appear no more than friendly advice that
Hightower might accomplish more by bringing grievances
to Little before going to the Laborers. It is normal for an
employer to be interested in what his employees are
aggrieved about and to suggest that their grievances might
be more expeditiously resolved by the steward bringing
them to him for attempted resolution. Nothing in Little's
remarks carry the implication that Hightower had better
bring grievances to Little instead of to the Laborers; rather,
the message conveyed was that such grievances might be
satisfactorily resolved by a Hightower-Little discussion of
them; such a suggestion clearly would not preclude
Hightower from carrying a grievance to the Laborers if he
was not satisfied by Little's response thereto.
Hightower's layoff was necessitated by its application of the principle of
layoffs based on inverse seniority status and assured the Union it would
recall all laid-off laborers when work increased
24 Reynolds testified to his transfer from laborer to painter membership
and Painter contract coverage prior to becoming a supervisor with no
change in his work performance (primarily sandblasting).
25 Little testified to his placement of employees hired for sandblasting.
pot-tending, and general labor as waysmen under the Carpenters contract
26 An obligation which the Company relieved itself of by securing a
waiver from the Laborers following the termination of Robinette and
Hightower
2. The alleged discriminatory discharges
The Trial Examiner finds and concludes that both the
layoff of Robinette and Hightower and the Company's
subsequent failure to recall them were motivated in major
part by Robinette's pressing for company adherence to
various provisions of the Company-Laborers' contract and
by Hightower's grievance activity both as a grievant and a
steward.
While the laborers grumbled over the Company's failure
to comply with several of the pay provisions of the
contract, only Hightower and Robinette carved those
complaints to responsible company officials-Reynolds
and Little.
In October 1970 Hightower questioned Reynolds about
the Company's failure to pay the laborers double time for
Sunday work, as provided in the contract. On November 2,
1970, Robinette questioned Little on the same subject, as
well as the Company's failure to pay the rate of the highest
classification in which the laborers worked for each full
workday and its failure to pay minimum call-in pay. It was
after these conversations (on November 22, 1970) that the
Company commenced to pay the laborers double time for
Sunday work 26 The Company made no effort to resolve
the balance of Robinette's complaints, however.27 Aware
of the laborers continued dissatisfaction28 and recognizing
Robinette and Hightower as their most militant spokes-
men, the Company attempted to put the matter off by
laying off the two militants,29 thereby removing Hightower
as a steward (no steward was named in his stead), giving
the balance of the laborers a view of what happens to
militants, and sure of no objection from the Laborers 30
Even the remote possibility Robinette and Hightower
might have been recalled when the Company figured their
ardor was dampened and Hightower 's status as a steward
destroyed disappeared when the Company learned the two
had the temerity to force their reluctant Union (see fn. 30)
to process a costly grievance against the Company.
Their temerity closed all company doors to them-as
27 Little neither answered Robinette's November 1970 questions con-
cerning daily pay at the rate of the highest classification worked and call-in
pay nor made any adjustments thereof
28 Witness Little 's questioning of Hightower both in mid-March and
April 2.
29 This purpose is demonstrated by the quick recall of the other two laid-
off laborers out of seniority order and the hire of subsequent replacements
for both Hightower and Robinette, without offering them recall.
30 Felix told Hightower and Robinette their grievance activity was a bad
thing since it might cost the Laborers their representative status among the
Company's employees
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds stated on April 27, had they not filed their
grievance, they might still be working for the Company.
The lesson was not lost on the remaining laborers-no
other laborer sought to collect the contract benefits
Hightower and Robinette received as the result of their
grievances, at the cost of their jobs and creation of union
hostility.
Based on the foregoing , the Trial Examiner finds and
concludes that Robinette and Hightower were laid off and
never subsequently recalled because of their grievance
activity and that, by such layoff and failure to recall, the
Company violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Company at all pertinent times was an employer
engaged in commerce in a business affecting commerce
and the Laborers is a labor organization as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. Little and Reynolds at all pertinent times were
supervisors and agents of the Company acting on its behalf
as those terms are defined in the Act.
3. The Company laid off Robinette on March 29, 1971,
laid off Hightower on April 19, 1971, and failed or refused
to recall them subsequently because of their grievance
activity and thereby violated Section 8(aX3) and (1) of the
Act.
4. The Company did not otherwise violate the Act.
5. The unfair labor practices herein specified affect
commerce as defined in the Act.
THE REMEDY
In order to effectuate the policies of the Act, the
Company shall be ordered to cease and desist from the
unfair labor practices found and from commission of like
or related invasions of its employees ' Section 7 rights, and
to take certain affirmative action.
The Company having discriminatorily discharged High-
tower and Robinette, the Company shall be ordered to
offer them full reinstatement and restoration of all rights,
with backpay computed on a quarterly basis, plus interest
at 6 percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716, from the date of their layoff to the date
reinstatement is offered to them.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, the Trial Examiner issues the following recommend-
ed:3i
ORDER
R. W. Little , Inc., its officers , agents , successors, and
assigns , shall:
1. Cease and desist from discharging or otherwise
discriminating against any employee for filing complaints
with Local 89, Laborers International Union of North
America, AFL-CIO, or any other labor organization over
violations of the contract between the Company and
Laborers Local 89 or any other labor organization, or in
any other like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Donald R. Hightower and Robert J. Robinette
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges , and make them whole for their lost
earnings in the manner set forth in this Decision in the
section entitled "Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement , upon application, after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) 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.
(d) Post at its shop in San Diego, California, copies of the
attached notice marked "Appendix."32 Copies of the
notice, on forms provided by the Regional Director for
Region 21, shall be signed by an authorized representative
of the Company and posted immediately upon receipt
thereof and maintained for 60 consecutive days thereafter,
in conspicuous places , including all places at all locations
where notices to employees are customarily posted.
Reasonable steps shall be taken by the company to insure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Order, what steps the Company has taken to comply
herewith 33
3' 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
32 In the event that 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
33 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 21. in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal Law by laying off and failing
R. W. LITTLE, INC.
or refusing to recall Donald R. Hightower and Robert J.
Robinette because they engaged in grievance activity in
order to make us pay double time for Sunday work, daily
pay at the rate of the highest classification worked, showup
time and minimum pay, all as set out in our contract with
Local 89, Laborers International Union of North America,
AFL-CIO:
WE WILL offer full reinstatement to Donald R.
Hightower and Robert J. Robinette, with backpay, plus
6-percent interest.
WE WILL NOT layoff, discharge, or otherwise discrim-
inate against Donald R. Hightower and Robert J.
Robinette, or any other employee, for engaging in
grievance activity for the purpose of securing rights,
privileges, or benefits to which they are entitled under a
contract or contracts between their collective-bargain-
ing representative and us, or otherwise discriminate
against our employees for engaging in union or
concerted activities protected by Section 7 of the
National Labor Relations Act, as amended.
R. W. LITTLE, INC.
(Employer)
Dated By
461
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Eastern Columbia Building,
849 South Broadway, Los Angeles, California, 90014,
Telephone 303-837-3551.