Temperature Systems Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1972

195 N.L.R.B. 1023 (N.L.R.B. 1972)

TEMPERATURE SYSTEMS CORP. 1023
Temperature Systems Corporation and John G. Du-
kart. Case 27-CA-3209
March 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 6, 1971, Trial Examiner George Chris-
tensen issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions.
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 Trial
Examiner's Decision in-fight of the exceptions and has
decided to affirm the Trial Examiner' s rulings,
findings, ' and conclusions and to adopt his recom-
mended Order to the extent consistent herewith.
The Trial Examiner correctly found that Respond-
ent hired Dukart to accelerate completion of a particu-
lar job involving the heating system of the Magic Pan
restaurant. We further agree with the Trial Examiner
that Respondent discriminatorily discharged Dukart
due to Dukart's union activities. The Trial Examiner
nevertheless recommended that Dukart be offered rein-
statement to a substantially equivalent position if his
former job no longer existed, with backpay from the
date of his discharge until the date reinstatement is
offered.
We believe the policies of the Act would be best
effectuated by not requiring reinstatement, since Du-
kart's employment would have been terminated upon
completion of the Magic Pan job. We accordingly limit
backpay to the date Respondent completed work at the
Magic Pan restaurant.
1. Delete paragraph 2(a) and insert the following in
its place:
"(a) Make John G. Dukart whole for his lost earn-
ings from the time he was discharged to the time Re-
spondent completed its work at the Magic Pan restau-
rant located at Larimer Square, Denver, Colorado, in
the manner set forth in the section of the Trial Ex-
aminer's Decision entitled `The Remedy.'"
2. Delete paragraph 2(b) in its entirety and reletter
paragraphs 2(c), (d), and (e) to 2(b), (c), and (d), re-
spectively.
3. Substitute the attached notice for the notice at-
tached to the Trial Examiner's Decision.
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 discharg-
ing John G. Dukart for complaining to Local Union
No. 9, Sheet Metal Workers International Union,
AFL-CIO, over our violation of our contract with that
Union,
WE WILL make John G. Dukart whole for his
lost earnings from the time he was discharged to
the time we completed our work at the Magic Pan
restaurant in Denver, Colorado, plus 6 percent
interest.
WE WILL NOT discharge or otherwise discimi-
nate against any employee for complaining to the
Union over any actual or alleged violations of our
contract with the Union, or otherwise discrimi-
nate against our employees for engaging in union
or concerted activities protected by Section 7 of
the National Labor Relations Act, as amended.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that Respondent, Temperature Systems Corpora-
tion, Denver, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order, as so modified:
' Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
195 NLRB No. 185
TEMPERATURE
SYSTEMS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
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 concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 260, New Custom House, 721 19th
a
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street, Denver, Colorado 80202, Telephone 303-837-
3555.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
GEORGE CHRISTENSEN, Trial Examiner: On August 17,
1971,2 the Examiner conducted a hearing at Denver,
Colorado, to try issues raised by a complaint issued on June
18 based upon a charge filed by John Dukart on March 29
alleging that the Company violated Section 8(a) (3) and (1)
of the National Labor Relations Act, as amended (hereafter
the Act), by discharging Dukart on March 9 for engaging in
activities protected under Section 7 of the Act.
The Company conceded Dukart's services were terminated
on the date in question but alleged such discharge was for
cause and not in violation of the Act.
The parties appeared by counsel and were afforded full
opportunity to adduce evidence, examine and cross-examine
witnesses, argue and file briefs. Briefs were filed by the Gen-
eral Counsel and the Company.
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The commerce facts and the qualification at all pertinent
times of the Company as an employer engaged in commerce
in a business affecting commerce and Local Union No. 9,
Sheet Metal Workers International Association, AFL-CIO,'
as a labor organization within the meaning of Section 2(2),
(5), (6), and (7) of the Act are conceded by the parties and
the Examiner so finds.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
The Company is a small , privately held corporation wholly
owned by the Victor Olson family and run by Victor Olson,
its President . It is primarily engaged in the installation of
sheetmetal , pipe, and ductwork for heating and cooling sys-
tems. The Company employs a small permanent crew and
relies on the Union 's hiring hall to provide added craftsmen
as and when its needs expand.
The Company was engaged by A. C. McKibben to install
sheetmetal and ductwork for the heating system of a Magic
Pan restaurant in a building which McKibben was erecting
as a general contractor on Larimer Square in Denver. The
record does not disclose when the Company began work on
the job , though Olson testified a substantial portion of it was
completed prior to March 1. Olson further testified that, both
before and after that date, McKibben was pressuring him to
complete work on the job ` and complaining "Why don't you
get me some good men down here . You're putting all of your
bad men on this job."
To accelerate the job's completion , Olson telephoned the
Union for an added man on or about March 3 . Duckart was
dispatched to the job by the Union and commenced work on
the morning of Thursday , March 4. He worked through that
and the following day, Friday , March 5 , at the jobsite. Two
other sheetmetal craftsmen employed by the Company also
Temperature Systems Corporation , hereafter called the Company.
Add 1971 to all subsequent dates wherein the year is omitted.
Hereafter called the Union.
McKibben had scheduled the installation of the ceiling over the Magic
Pan area for Monday, March 15 . It was necessary to complete the sheet-
metal and duct installation prior to that date or the ceiling work could not
be accomplished.
worked at the job, Mel Heininger and Charley Nelson, but
not full time (they also were sent to other Company jobs for
part of the 2 workdays). Dukart testified without contradic-
tion that, during the 2 days, about 50 feet of trunkline was
installed with connecting sleeves, openings were cut for ducts
and ducts were assembled and installed. All three men
worked without supervision, "doing what came naturally," as
Dukart put it. While Olson visited the site with McKibben on
Friday, March 5, he did not identify himself to Dukart or
otherwise speak to him, confining himself to asking Dukart's
fellow worker, Mel Heininger (outside Dukart's presence), if
Dukart was the new man.
When Olson came to the jobsite on Friday, March 5, he
and McKibben went to the Magic Pan area and spent be-
tween ' and X of an hour there. Olson testified that during
the entire period he was there, Dukart was sitting down
pounding sheetmetal with a hammer.' Olson further testified
that McKibben designated Dukart as one of the "bad men"
on the job by pointing his finger at Dukart.b
Olson stated he decided then and there to discharge Dukart
as a poor producer but did not so notify Dukart because
Union rules required that a man be given his check upon
discharge and he did not have enough time to go to his office,
prepare a check, and get back to Dukart.'
On the following day, Saturday, March 6, Olson and Ray
Hiatt,' picked up additional materials at the shop,' went to
the jobsite , and continued the sheetmetal and duct installtion.
When Dukart came to work the following Monday, March
8, he noted the work that Olson and Hiatt performed over the
weekend. In the couse of a telephone conversation with Hiatt
on another matter later that morning, Dukart asked Hiatt
who performed the weekend work. Hiatt replied he and Ol-
son performed it.
Dukart telephoned the Union office, reported that Hiatt
had worked Saturday, and asked Business Manager Curt
Guidry of the Union if Hiatt had secured a permit for the
Saturday work.10 Guidry checked, informed Dukart that he
had not, and assigned Business Representative Lee Gauthier
to investigate the matter further. Gauthier came to the jobsite
and Dukart pointed out the work done between the time he
left the jobsite at the end of the workday on Friday and the
Dukart explained that it is his usual practice to assemble ducts by
crimping the projecting metal edges over with a hammer while in a kneeling
or squatting position , prior to installation.
McKibben, while testifying that he complained directly to Dukart at the
jobsite over what he believed to be the slow progress of the work, because
Dukart was the Company's man on the job, did not corroborate Olson's
testimony that he pointed out Dukart as the poor producer; his complaints
were general over a period commencing some time before Dukart was hired
and continuing through Dukart's period on the job. Olson's testimony to
such designation , in the absence of such corroboration , is not credited.
Olson's self-serving testimony to a mental decision on Friday, March
5 to discharge Dukart for poor production, in the absence of any communi-
cation to anyone, action to accomplish same and Dukart's uncontradicted
testimony to considerable work progress on March 4 and 5, is not credited.
The parties stipulated that O,son and Hiatt at times pertinent were
supervisors and agents of the Company acting on its behalf (Hiatt notified
Dukart of his termination ); it is undisputed , however, that Hiatt was clas-
sified and worked as a journeyman sheetmetal craftsman and was a member
of the Union at all times.
Dukart and his fellow workers exhausted all the materials at the jobsite
by the end of their Friday workshift.
10 The contract between the Company and the Union, which was in effect
at all times pertinent , defines the workday as 8 hours of work between 8 a.m.
and 5 p.m. and the workweek as 5 consecutive workdays beginning with
Monday and ending with Friday; it further provides that all work outside
of the regular workday and workweek shall be performed only after the
employee scheduled to perform it has notified the Union in advance of its
performance and secured written permission therefor from a Union business
representative.
TEMPERATURE SYSTEMS CORP. 1025
time he reported to the jobsite on Monday. Gauthier com-
mented that Hiatt had exposed himself to possible charges
under the Union constitution for so working without permit.
Hiatt subsequently telephoned Guidry at the Union office and
requested a permit for the Saturday work. Guidry told him
it was too late, the matter had already been reported. Gauth-
ier subsequently telephoned Hiatt and told him he was sub-
ject to possible charges for working Saturday without secur-
ing a permit in advance from the Union. Hiatt expressed his
concern and displeasure over the matter to Olson, since Olson
had promised to secure a permit for Hiatt from the Union in
the course of the conversation in which Olson asked Hiatt to
work Saturday.
During the same day (Monday, March 8), Dukart tele-
phoned Olson's office and spoke to Olson's secretary, Joan
Barnard. Dukart said he heard she wanted to talk to him. She
said she tried to reach him earlier to find out how many
dependents he claimed for federal income tax purposes since
she was making up the checks for the preceding week, but on
failing to reach him talked to his wife, who told Barnard that
she thought he normally declared three dependents. Dukart
said no, he only wanted to declare two. Barnard said it was
too late to change, but she would pick up the correct number
on the next check. Dukart said he heard that the Company
mailed paychecks to the men and asked if this was correct.
Barnard confirmed that it was. Dukart said he never heard
of such a procedure. Barnard replied it was Company policy,
the checks were mailed on Monday and usually received by
Wednesday. Dukart indicated he thought it was a poor proce-
dure, and Barnard reiterated it was Company policy. Dukart
closed the conversation with the statement, "include a bonus
with the check," and a laugh." Barnard reported the conver-
sation to Olson, particularly Dukart's objection to the check
mailing procedure, and Olson expressed his displeasure at
Dukart's questioning of Company policy. He did not instruct
Barnard to make up a final check for Dukart or state to her
that he had decided to discharge Dukart.
Dukart worked a full day both on Monday, March 8, and
'Tuesday, March 9, at the jobsite. At no time during those 2
'days or the 2 days he worked the preceding workweek did
Olson or Hiatt give him any direction, order, reprimand, or
instruction. Just before the end of the Tuesday workshift,
Hiatt appeared at the jobsite, handed Dukart a check, and
told him he was laid off. Dukart asked why. Hiatt replied it
was Olson's order to lay Dukart off, that was all he knew. As
Dukart was gathering up his tools, Hiatt asked for his work-
book.12Dukart removed three pages from the workbook
(there were carbon copies of the removed pages still in the
book) and gave it to Hiatt.
The Magic Pan job was not completed at the time Dukart
left the jobsite.
Dukart filed formal charges against Hiatt within the
Union. Hiatt was tried, found•guilty, and fined $50. The fine
was subsequently suspended.
Dukart also filed for unemployment compensation. Olson
resisted the claim, stating on the form as his reason therefor
that "This man wanted to be paid without working, was
discourteous to office personnel, generally a troubleiaker
11 The testimony of Barnard and Dukart regarding the telephone conver-
sation was mutually corroborative, with the exception of the bonus com-
ment and laugh With regard to that, Barnard could not recall whether or
not it occurred. Dukart"s testimony that it did occur is credited, since the
balance of his testimony concerning the conversation was corroborated.
"" Each employee maintained his own workbook in which he entered the
jobs to which he was assigned and the number of hours and dates he worked
on each such job.
and took company records (theft) and should not be entitled
to unemployment wages."
B. Contentions of the Parties,- Issues
1. The General Counsel
The General Counsel contends that Dukart was discharged
because he complained to the Union over Hiatt's violation of
the Company-Union provision barring Saturday overtime
work without advance permit from the Union and that such
discharge is violative of Section 8(a)(3) and (1) of the Act.
2. The Company
The Company argues that Olson decided to discharge Du-
kart on Friday , March 5, for poor productivity, prior to the
Saturday overtime incident , and therefore could not have
been motivated by the overtime complaint.
3. The General Counsel 's Rejoinder
The General Counsel points to Olson's failure to communi-
cate to Hiatt, Barnard, McKibben , or Dukart his alleged
March 5 decision to discharge Dukart at any time prior to
Tuesday, March 9, his recitation of the reasons for the dis-
charge when resisting Dukart's claim for unemployment
compensation , the fact that McKibben 's complaints of poor
production predated Dukart's hire, and that the slow
progress was as attributable to the Company's other crafts-
men as to Dukart as indicating the alleged reason for Du-
kart's discharge is pretextual and the primary motivating
factor was the complaint filing.
4. Issues
The issues in this case are:
a. Was the Company motivated, either wholly or in part,
by Dukart's complaint to the Union over Hiatt's Saturday
work without a permit, in discharging him?
b. If so, did the discharge violate Section 8(a)(3) and/or (1)
of the Act?
C. Analysis and Conclusions
As so frequently in these situations where the issue is one
of Company motivation, the case turns on inferences drawn
from circumstantial evidence.
The Company maintains Dukart was discharged for poor
productivity and pursuant to a decision reached by Olson on
that ground when he observed a lack of progress in the job
on a March 5 visit to the jobsite.
In the report furnished by the Company to the Colorado
Unemployment Commission subsequent to the discharge, the
Company stated by Olson that Dukart was discharged be-
cause, in addition to poor production, he was a "trou-
blemaker," he was discourteous to the office staff, and he stole
Company property.
The last reason may be discounted, since the alleged theft
(removing three pages from a workbook) occurred after Hiatt
told Dukart he was discharged.
With regard to the alleged discourtesy, Barnard's contact
with Dukart was caused by her desire to make up his pay-
check for the previous week, i.e., for the work performed by
Dukart on Thursday and Friday, March 4 and 5; however,
when she reported Dukart's objection to the Company policy
of mailing his check, Olson neither told Barnard that Dukart
was to be discharged or instructed her to draw up his time,
even though this conversation occurred on Monday, March
8, 3 days after the alleged decision to discharge Dukart.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the poor productivity, the evidence shows that
McKebben's complaints long predated Dukart's hire; that
the slowness in work progress is more readily or at least as
equally attributable to his fellow employees as to Dukart; and
is countered by Dukart's uncontradicted testimony to sub-
stantial work progress during the 14-15 hours he worked on
the job prior to Olson's visit on March 5, the fact he and his
coworkers installed all the materials at the jobsite before the
end of the Friday workshift, and Olson's testimony he saw
Dukart diligently pounding away (shaping sheet metal) dur-
ing the entire time Olson was at the site and contented himself
with merely confirming Dukart's identity through another of
his employees.
This leaves only the "troublemaker" designation. Dukart
certainly did create trouble for Hiatt when he complained to
the Union over Hiatt's March 6 violation of the Company-
Union contract and in turn created trouble for Olson when
Hiatt upbraided Olson for exposing him to charges by failing
to carry out his promise to secure a permit for the work in
question from the Union prior to its performance.
In the judgment of the Examiner, the Dukart complaint to
the Union was the final or precipitating event which triggered
his discharge; not until then was Olson sufficiently dissatisfied
with Dukart's alleged work deficiencies or alleged discourtesy
to discharge him, and the Examiner so finds and concludes.
An employee complaint to the Union representing him
over another employee's violation of a contract between that
Union and his employer is activity protected by Section 7 of
the Act and discharge for engaging therein is a violation of
Section 8(a)(1) of the Act." The Examiner finds it unneces-
sary to consider whether by such discharge the Company also
violated Section 8(a)(3) of the Act, since in any case the
remedy would be the same.
The Examiner therefore finds and concludes, for the rea-
sons and based upon the findings and conclusions set out
hereinabove, that the Company's discharge of Dukart on
March 9 was substantially motivated by his March 8 com-
plaint to the Union over Hiatt's March 6 work in violation
of the Company-Union contract and that such discharge vi-
olated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By discharging Dukart on March 9 for complaining to the
Union about Hiatt's March 6 violation of the Company-
Union contract, the Company violated Section 8(a)(1) of the
Act.
REMEDY
In order to effectuate the policies of the Act, it will be
necessary to order the Company to cease and desist from the
unfair labor practice 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 Dukart,
it is necessary that it be ordered to offer him full reinstate-
ment and restoration of all rights, with backpay computed on
a quarterly basis, plus interest at 6 per cent per annum, as
prescribed in F W. Woolworth Co., 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716, from the date of
his discharge to the date reinstatement is offered.
" NLR.B. v Penzel Construction Co., 449 F.2d 148 (C.A. 8), enforcing
185 NLRB No 32; N.L.R.B. v. Otlans Construction Co, 445 F 2d 299
(C.A. 9), enforcing 182 NLRB No. 137; News-Texan Inc. v. N.L R.B. 422
F.2d 381 (C.A 5), enforcing 174 NLRB No. 136; Associated Divers &
Contractors, Inc., 180 NLRB No. 62, H. C Smith Construction Co., 174
NLRB No 180.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c)of the Act, the
Examiner issues the following recommended:"
ORDER
Temperature Systems Corporation, its officer, agents,
successors, and assigns, shall:
I. Cease and desist from discharging or otherwise dis-
criminating against any employee for filing complaints With
Local Union No. 9, Sheet Metal Workers International
Union, AFL-CIO, over violations of contracts between that
Union and the Company or in any other like or related man-
ner interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer John G. Dukart immediate and full reinstatement
to his former job or, if that job no longer exists, -to a substan-
tially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for his lost
earnings in the manner set forth in this Decision in the Sec-
tion entitled "Remedy."
(b) Notify immediately the above named individual, if pres-
ently serving in the Armed Forces of the United States, of his
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 make available to the Board or its agents,
upon request, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its shop in Denver, Colorado, and any other
locations where notices to its employees are customarily
posted copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 27, shall be signed by an authorized
representative of the Company and posted immediately upon
receipt thereof and maintained for 60 consecutive days there-
after, in conspicuous places, including all places at all loca-
tions 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 27, in writing,
within 20 days.from the date of receipt of this Order, what
steps the Company has taken to comply herewith.16
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommended Order herein shall, as provided in Sec-
tion 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
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
36 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 27, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "