Wright Contracting Co.

National Labor Relations Board - Board Decisions

Oct 14, 1975

220 N.L.R.B. 1274 (N.L.R.B. 1975)

1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright Contracting Company and Kermit A. Rogers.
Case 9-CA-8882
October 14, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On May 22, 1975, Administrative Law Judge
Abraham H. Mailer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Wright Contracting
Company, Clendenin, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
December 4, 1974, the Regional Director for Region 9 of
the National Labor Relations Board, herein called the
Board issued on behalf of the General Counsel a complaint
and notice of hearing against Wright Contracting Compa-
ny, herein called the Respondent.' Briefly, the complaint
alleged that on or about June 3, 1974,2 the Respondent
discriminated in regard to the hire and tenure of employ-
1 The complaint was issued upon a charge and an amended charge filed
on October 18, and November 21, 1974, respectively.
2 All events detailed herein occurred during 1974.
ment of Kermit A. Rogers by discharging him and thereaf-
ter in failing and refusing to reinstate him to his former
position of employment in order to encourage membership
in Local Union No. 14614, United Steelworkers of Ameri-
ca, AFL-CIO, herein called the Union. In its duly filed
answer, the Respondent denied any violation of the Act.
Pursuant to notice a hearing was held before me at
Charleston, West Virginia, on January 23, 1975. All parties
were present at the hearing and were afforded full opportu-
nity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs were filed
by the General Counsel and the Respondent on February
18, 1975. Upon consideration of the entire record and the
briefs, and upon my observation of each of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent's answer admits, and I find, that Respon-
dent is a Georgia corporation engaged in general highway
construction in several States of the United States, and, at
the time of the filing of the complaint was engaged in high-
way construction at Clendenin, West Virginia. During the
year preceding the filing of the complaint, which is a repre-
sentative period, Respondent had a direct inflow of goods
and materials in interstate commerce, valued in excess of
$50,000, which were purchased and shipped to its construc-
tion site in West Virginia directly from points outside the
State of West Virginia. Accordingly, I find and conclude
that the Respondent is, and has been at all times material
herein, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate the
policies of the Board to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Local Union No. 14614, United Steelworkers of Ameri-
ca, AFL-CIO, is , and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUE
Whether the Respondent discharged Rogers in order to
encourage membership in the Union, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The Facts
In October 1970, Rogers had been a member of District
50, which later merged with the Union. At that time he
worked for a construction firm known as Vacellio and
Grogan. His supervisor on that job was Foreman James
Smith, who at the time of the events herein detailed was the
day foreman for the Respondent. Prior to working for Va-
cellio and Grogan, Rogers had worked 5 years for the State
Road Commission. In all, Rogers had operated a grader,
220 NLRB No. 205
WRIGHT CONTRACTING COMPANY
an end loader , a large size Caterpillar dozer, also known as
a D-9, and had driven a truck.
On May 28, Rogers approached Foreman Smith, seeking
employment with the Respondent. Foreman Smith intro-
duced Rogers to Night Foreman James Wines and recom-
mended him for employment, telling Foreman Wines that
Rogers could do "about anything you'd ask him to do."
Foreman Smith then discussed the matter with Superinten-
dent Hugh Stewart. About half an hour later, Rogers was
hired for work on the night shift and was directed by Fore-
man Wines to operate a rubber-tire roller with which to
push pans or scrapers. At no time was Rogers directed to
communicate with the Union.
Rogers worked that night, and at no time was he repri-
manded by Superintendent Stewart, Foreman Wines, or
any other person. During the night, another employee,
Danny Young, had accidently run his equipment into a
ditch, and Foreman Wines directed Rogers to get a D-9
dozer and push him out of the ditch. Rogers did so. The
record reveals that on a prior occasion, employee Danny
Young had accidently run the blade of his machine
through a tire, causing approximately $600 damage, but
the Respondent did not discharge Young, nor take any
disciplinary action against him.
Rogers worked for 7-1/2 hours before rain halted opera-
tions at 1:30 a.m . Rogers reported for work the next two
evenings , but Respondent was not doing any work because
of the rain, and finally was told to report back to work on
Monday, June 3.
When Rogers reported for work on Monday, June 3,
Foreman Smith met him and handed him his check and
told him that he had been discharged. According to Rog-
ers, he asked Foreman Smith why he had been discharged
and Foreman Smith replied, "because you've been out of
the union over a year, and this other boy [Duffield] belongs
to the union , and we're going to have to put him back to
work."
According to Foreman Smith, Superintendent Stewart
had directed him to discharge Rogers about 15 minutes
before the shift started, that Superintendent Stewart gave
no reason other than that Duffield would take Rogers'
place, that Superintendent Stewart did not say that Rogers
had worked improperly. Foreman Smith testified further:
A. Well I gave him his check, and I told him that
Larry Duffield, the dozer operator, who had returned
from service , and had worked for the Company be-
fore, was to. take his place. And that was the reason I
gave him for dismissal , but at the time I told him there
might be some other reason, that I'll try to find out.
Q. Did you also tell him that he was being dis-
charged because he had been out of the union for over
a year, and you had to put a union member in his
place?
A. Yes, I did. I stated that, too.
Later, on examination by Respondent's counsel, Fore-
man Smith testified:
Q. Now are you making this statement now in rela-
tion to the fact that you told him you understood that
he'd been out of the union for over a year, and that's
1275
why he was terminated?
A. Yes. That's why I believed him to be terminated,
but I thought there might be some other reason I did
not know.
Q. Well you told him that at that time?
A. I stated it that way.
On or about June 6, Rogers went to the Respondent's
office and spoke with Superintendent Stewart, asking him
why he had been 4ischarged, and Stewart replied, "On ac-
count of the Union."
Superintendent Stewart admitted that Rogers had spo-
ken to him about his discharge, but denied making the
foregoing statement. Superintendent Stewart testified that
he observed Rogers operating his equipment on May 28
before he went to dinner and thereafter before he went
home at approximately 9:30 or 10 p.m. He testified that
Rogers was operating the equipment negligently, by slip-
ping, spinning the wheels, and bumping into the equipment
that he was pushing; that continually bumping the equip-
ment that he was pushing could tear up a dozer. He then
testified:
Q. And what, if anything, did you do in regard to
Mr. Rogers' position with Wright Contracting after
that?
A. Well I thought about it in my mind, the way he
operated the piece of equipment, and I made my mind
up when we cranked back up to pay him off, when he
came back to work. So I went and told my office man-
ager to make out Mr. Rogers' check, and dismiss him.
Later, the following colloquy occurred.
Q. (By JUDGE MAILER) Mr. Stewart, did I under-
stand you correctly on direct examination that you
made up your mind when you saw Mr. Rogers operat-
ing the equipment, to fire him?
A. I made up my mind, sir, that I didn't like the
way he was operating the equipment.
Q. Well when did you make up your mind to fire
him?
A. After thinking about it, when I went back to
work I thought about it.
Q. How long did you think about?
A. I thought about those days, when I came back
and I decided to make the change.
Q. Well when did you finally decide to fire him?
A. That afternoon.
Q. Which afternoon?
A. The afternoon of the day we went back to work.
I told the office manager to make out his check.
Q. The 3rd?
A. Yes, sir.
Q. You did not make up your mind then to fire him
on the 28th of May?
A. No, sir. I was only thinking.
Superintendent Stewart testified further ,that, when he
was observing Rogers, he was 150 to 200 feet away from
Rogers; that he did not say anything to Rogers, nor to
Foreman Wines, about how Rogers was operating the
equipment; and that Rogers did not damage any of the
equipment. Superintendent Stewart testified further that he
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no conversation with any union official between the
time that Rogers worked and the time he was discharged,
and that he did not recall Union President Ledford's- telling
him that Rogers was not a member in good standing.
With regard to the ability of Superintendent Stewart to
observe his work, Rogers testified on rebuttal that he did
not see Stewart at the jobsite , that it was dark and visibility
was limited to approximately 40 feet.
Kenneth Ledford, president of the Local Union, called
as a witness for the Respondent , testified that Superinten-
dent Stewart had called him and asked him if Rogers was
still a member of the Union in good standing. He did not
remember when the inquiry was made, that it might have
been in May, June, or July. He denied putting any pressure
upon Superintendent Stewart to hire only union men, but
admitted that in a pretrial statement he had said that "the
only statement I made earlier to Hugh Stewart was that he
had to hire members in good standing ." He admitted that
he had had what he termed "contract disagreements" with
Rogers prior to Rogers' employment by the Respondent.
He testified further that he did not complain to Stewart
about Rogers' employment; that the first he knew of Rog-
ers' employment was a week or two after Rogers' dis-
charge.
B. Concluding Findings
Counsel for the Respondent in his brief (p. 7) accurately
stated the issue as follows:
To state the obvious, the question presented here is
purely one of credibility. If the allegations of Rogers
are deemed to have been proved by substantial and
creditable evidence, then the Company is guilty of an
unfair labor practice. Conversely, should Rogers' alle-
gations not be deemed to be supported by substantial
and creditable evidence , the General Counsel's case
has failed.
Respondent contends that Rogers' testimony is wholly
uncorroborated by other witnesses; that the possibility of
Rogers' obtaining an award of backpay and reinstatement
makes him the only witiless that stands to benefit by this
proceeding ; and that it has been held that a finding of an
unfair labor practice based primarily on the uncorroborrat-
ed testimony of the party who stands to benefit from an
award of reinstatement and backpay was not based on sub-
stantial evidence. That Rogers stands to gain by the instant
proceeding is of course true , and in appraising his testimo-
ny I have taken into account his interest in the case. How-
ever, it should be noted also that Superintendent Stewart's
testimony must likewise be examined with caution, as any
liability that may accrue to the Respondent was caused by
his action in discharging Rogers.
There are a number of elements in the case that have
compelled me to accept the verity of Rogers' testimony, to
reject Superintendent Stewart's testimony that Rogers was
discharged for the reasons given by him, and to find that
he was discharged because he was not a union member in
good standing . Superintendent Stewart's testimony raises a
number of significant questions that are not answered in
the record. If Rogers' performance was negligent and sub-
jected the equipment to possible damage, one wonders: (1)
why he said nothing to Rogers, or (2) why he said nothing
to Foreman Wines, and (3) why he did not then and there
discharge Rogers or do so, at least, at the end of the shift.
Superintendent Stewart's testimony as to when he made up
his mind to discharge Rogers is somewhat equivocal. As
previously noted, on direct examination he testified:
Well I thought about it in my mind, the way he oper-
ated the piece of equipment, and I made my mind up
when we cranked back up to pay him off, when he
came back to work. So I went and I told my office
manager to make out Mr. Rogers' check, and dismiss
him.
The foregoing testimony could mean that Superinten-
dent Stewart had made up his mind that night to discharge
Rogers and to effectuate the discharge the next working
day. If so, one wonders why Rogers was not given his dis-
charge and his check the following evening when he report-
ed for work, even though no work was being performed
because of the rain.' It could also mean, as Superintendent
Stewart testified later, that he did not make up his mind to
discharge Rogers that night, but thought about the matter
for 6 days until the afternoon of June 3. It would seem that
if he had to think about the matter for 6 days before decid-
ing to terminate Rogers, then Rogers' performance could
not have been as horrendous as Superintendent Stewart
would have us believe.
In considering Superintendent Stewart's testimony, ac-
count must also be taken of the testimony of Union Presi-
dent Ledford who testified that Stewart called him to in-
quire whether Rogers was a member in good standing.4
Ledford did not remember whether the call was made in
May, June, or July. However, Ledford's inability to fix,the
time is of no consequence. Plainly, Stewart could not have
called before May 28, when-Rogers was hired, as he did
not know Rogers, and Rogers had not applied for employ-
ment before that date. Nor would Stewart have had any
reason to call after June 3, when Rogers was terminated.
Obviously, Stewart's inquiry into Rogers' union member-
ship occurred between May 28 and June 3, and I so find.
In sum, we have the following sequence of events: as ad-
mitted by President Ledford, he had told Superintendent
Stewart in an earlier conversation that he had to hire mem-
bers in good standing; between the hiring of Rogers and
his discharge' Superintendent Stewart called President
Ledford to find out whether Rogers was a member in good
standing; and Rogers who was not in -good -standing was
discharged. It is evident from the foregoing that Rogers
was discharged because he was not a member in good
standing and that the purpose and effect of Rogers' dis-
charge was to encourage membership in the Union, in vio-
lation of Section 8(a)(3) and (1) of the Act, and I so find.
3 As noted above, Rogers also reported for work the next evening and was
told to report on June 3.
Stewart testified that he did not recall inquiring of Ledford whether
Rogers was 'a member in good standing.
WRIGHT CONTRACTING COMPANY 1277
V. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of Re-
spondent set forth in section I, above , have a close, inti-
mate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice within the meaning of Section 8(a)(3)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged Kermit A. Rogers, I shall recommend that the Re-
spondent be ordered to offer him immediate reinstatement
to his former job , discharging, if necessary, any employee
hired to fill such job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights, and make him whole for any loss
of earnings he may have suffered by reason of such dis-
charge, with interest to be computed in the customary
manner.5
I shall further recommend that the Respondent be or-
dered to preserve and make available to the Board or its
agents , upon request, payroll and other records to facilitate
the computation of the backpay due and the right to em-
ployment.
As the unfair labor practice committed by the Respon-
dent is of a character striking at the root of employees'
rights safeguarded by the Act, I shall recommend that it
cease and desist from infringing in any manner upon rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily discharging Kermit A. Rogers be-
cause he was not a member of the Union in good standing,
the Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER6
Wright Contracting Company, its officers , agents, suc-
cessors, and assign, shall:
1. Cease and desist from:
(a) Encouraging membership in Local Union 14614,
United Steelworkers of America, AFL-CIO, or in any
other labor organization of its employees, by discharging
or in any other manner discriminating against employees
in regard to hire and tenure of employment or any type of
working conditions of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the provi-
so to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Kermit A. Rogers immediate and full rein-
statement to his former job, discharging, if necessary, any
employee hired to fill such job, or if the job no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights, and make him whole
for any loss of earnings he may have suffered by reason of
such discharge in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all rec-
ords necessary for the determination of amount of backpay
due and the right to reinstatement.
(c) Post at its office at the jobsite in the area of Clende-
nin, West Virginia, copies of the attached notice marked
"Appendix." 7 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being duly signed
by an authorized representative of the Respondent, shall
be posted by the Respondent 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 Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
5 F. W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
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 recommendations 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.
r 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 "
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Local Union
14614, United Steelworkers of America, AFL-CIO, or
in any other labor organization of our employees, by
discharging or in any other manner discriminating
against employees in regard to hire and tenure of em-
ployment or any type of working conditions of em-
ployment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form, join, or assist
any labor organization , to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL offer to Kermit A. Rogers immediate and
full reinstatement to his former job, discharging, if
necessary, any employee hired to fill such job, or if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights, and make him whole for any loss of earnings he
may have suffered by reason of such discharge.
All of our employees are free to become and remain
members of the above-named Union or any other labor
organization or to refrain from doing so.
WRIGHT CONTRACTING COMPANY