Carlson Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1971

195 N.L.R.B. 218 (N.L.R.B. 1971)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carlson Corporation and Walter J. Santwer . Case 1-
CA-7428
January 31, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 9, 1971, Trial Examiner James V. Constan-
tine issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing 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 Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended Order.
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 and hereby orders that Respondent,
Carlson Corporation, Cochituate, Massachusetts, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.'
MEMBER KENNEDY , dissenting:
I cannot join my colleagues in their adoption of the
Trial Examiner's finding of a violation of Section
' Our dissenting colleague would find no 8(a)(1) violation based upon
Santwer's discharge , viewing it as occasioned by poor work performance not
long after an earlier discharge and rehiring We note that it is not clear that
the earlier discharge was for nonperformance of work That Santwer failed
to "shape up" after being given a second chance is a conclusion that misses
the main thrust of the case Santwer was a general laborer, assigned by the
construction superintendent specifically to assist the carpenters working on
the roof of the project when, in late October, it came to the superintendent's
attention that carpenters were doing laborers' work In November, Santwer
complained of the carpenters getting their own materials from the stockpile,
using shovels, and applying wood preservative-work normally done by
laborers. This provided an opportunity for the carpenters to complain of
Santwer's not being available when he left the area to report the situation
The union steward looked into these complaints, found them to have merit,
and a resolution concerning the work to be performed by carpenters was
achieved No criticism of Santwer's work habits was ever made to him His
testimony that the labor foreman had complimented him on his work on one
occasion, and, in paying him off on November 18, had said there was no
work, was not refuted In the circumstances we agree with the Trial Exam-
iner that Santwer was actually prevented from performing his work properly
before his discharge, and that the real reason for his discharge, as reflected
in comments by the labor foreman, was his complaint that carpenters were
doing laborers' work-a type of employee activity protected by Section 7
and Section 8(a)(1)
8(a)(1) of the Act herein. I would dismiss the complaint
in its entirety.
The Trial Examiner's ultimate conclusion as to the
discharge is predicated, I believe, upon a number of
erroneous or irrelevant premises. Thus, the Trial Ex-
aminer states that Santwer was a "satisfactory" em-
ployee and "At no time was Santwer criticized for his
work." He finds that Santwer was "precipitately" and
"abruptly discharged before the end of the work week"
without a warning. The Trial Examiner observes that
"Failure to warn his probative value," and "abrupt-
ness, timing, and manner of discharge shed light as to
whether a termination is not for cause and whether the
asserted cause is offered as a pretext to disguise the
employer's antipathy to protected activity which
prompted the dismissal."
The Trial Examiner's analysis, adopted by my col-
leagues, ignores the fact that Respondent had dis-
charged Santwer on October 30, less than 3 weeks ear-
lier, for nonperformance of work. The General Counsel
does not contend that the October 30 discharge was
discriminatorily motivated. The uncontroverted tes-
timony is that Santwer was reinstated on November 2,
when the union business agent agreed to talk to
Santwer and expressed confidence that he could con-
vince Santwer to improve his work.
In my view, it is illogical to characterize Santwer as
a "satisfactory employee" when he had been recently
discharged for unsatisfactory performance.
The undisputed fact is that when Santwer was rein-
stated he did not do the work assigned to him. He was
supposed to help the carpenters on the roof of the
building. He did not stay on the roof and he did not
help the carpenters. The Trial Examiner blames the
carpenters for not working with Santwer. Apparently,
the Trial Examiner reasoned that Santwer was not ne-
glecting his work since Santwer had nothing to do and
he was therefore free to wander about the construction
site.
As I see it, the record amply supports Respondent's
defense that after it reinstated Santwer on November 2
his work was the same as it was before his discharge on
October 30. He was not a productive employee. In my
opinion, no adverse inference can be drawn from Re-
spondent's failure to give Santwer warnings after he
was reinstated on November 2. He well knew he was
obliged to "shape up" after being given a second
chance.
My review of the record convinces me that it does
not sustain the Trial Examiner's finding of a violation
of Section 8(a)(1) of the Act.
195 NLRB No. 15
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CARLSON CORPORATION 219
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
JAMES V. CONSTANTINE, Trial Examiner: This is an unfair
labor practice case instituted pursuant to Section 10(b) of the
National Labor Relations Act, herein called the Act. 29
U.S.C. 160(b). It was initiated by a complaint issued on Feb-
ruary 9, 1971, by the General Counsel of the National Labor
Relations Board, herein called the Board, through the Acting
Regional Director for Region 1 (Boston, Massachusetts),
naming Carlson Corporation as the Respondent. Said com-
plaint is based on a charge filed on December 16, 1970, and
an amended charge filed on January 22, 1971, by Walter J.
Santwer, an individual.
In substance the complaint alleges that Respondent vi-
olated Section 8(a)(1) and (3) and that such conduct affects
commerce within the meaning of Section 2(6) and (7) of the
Act. Respondent has answered admitting some of the allega-
tions of the complaint but denying that it committed any
unfair labor practices.
Pursuant to due notice this case came on to be heard and
was tried before me at Boston, Massachusetts, on April 27,
1971. All parties were represented at and participated in the
trial and had full opportunity to introduce evidence, examine
and cross-examine witnesses, file briefs, and offer oral argu-
ment. At the close of the case Respondent argued orally.
Briefs have been received from Respondent and the General
Counsel.
This case presents the issues of whether Respondent (1)
denied overtime to Walter J. Santwer and (2) discharged said
Santwer because he assisted a labor organization (Laborers'
International Union of North America, Local 429, AFL-
CIO) in the enforcement of its work rules and contract.
Upon the entire record in this case, and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, a Massachusetts corporation with its princi-
pal office and place of business in Cochituate, Massachusetts,
is engaged in the business of general contracting and building
construction. Pursuant to one of its contracts, that with Mac-
Bick, a medical supply company, Respondent is constructing
a warehouse building valued in excess of $1 million for Mac-
Bick in Billerica, Massachusetts. Said building is herein called
the Billerica jobsite.
During the past 12 months Respondent purchased building
materials valued in excess of $50,000 from points outside the
Commonwealth of Massachusetts. I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction over Respondent in
this proceeding.
II THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Local
429, AFL-CIO (herein called the Union), is now, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
As noted above, Respondent is constructing a warehouse
building for Mac-Bick in Billerica, Massachusetts. On or
about September 9, 1970,' the Union, located in Lowell, Mas-
sachusetts, dispatched Walter J. Santwer to the Billerica job-
site , where he was hired as a general laborer. The union
steward on that job was Thomas Welch. At that time Re-
spondent also had another laborer, Fitzgerald, on the job.
Later Respondent hired 9 more laborers at this site, making
a total of 12 laborers employed there in early October.
In mid-October, however, Respondent laid off six laborers
but retained Santwer, among others. Then on Friday, Octo-
ber 30, it laid off Santwer and William Donahue, another
laborer. However, John Emerson, the Union's business agent,
on October 30 directed Santwer to return to the job the
following Monday, November 2. Santwer did so and was
again assigned to work as a general laborer.
A week after returning to work on November 2 Santwer
observed that the carpenters on the job were performing some
of the work which he considered to belong to laborers. Ac-
cordingly he spoke about this situation to Gerald Fields,
Respondent's foreman of laborers. I find that Fields is a
supervisor within the meaning of Section 2(11) of the Act and
an agent of Respondent acting on its behalf. During this
conversation Santwer told Fields that carpenters were doing
the work of the laborers, mentioning as an example that "a
carpenter was using a shovel which is not to be done [by him],
according to the Union agreements." Fields promised to look
into this. During that same week Santwer also discussed the
foregoing conditions with Thomas Welch, the Union's job
steward at the site.
Santwer also observed that during the week commencing
on November 9 laborers other than he were performing over-
time work on the job. As a result he asked Welch, the Union's
steward, why Santwer had not been assigned to any of his
overtime. Nevertheless Santwer did not thereafter receive any
overtime work.
On Monday, November 16, Santwer reported for work
about 7:15 a.m. He regularly started at 8 a.m. and worked
until 4:30 p.m., with a break at noon of a half hour for lunch.
Although the other laborers, five or six in number, started to
work at 7:30 a.m., thus being awarded a half hour of over-
time, Santwer was not invited to work before 8 a.m. Yet
Gerald Fields, Respondent's foreman of laborers who was
present at the time and saw Santwer there, did not grant
Santwer any overtime that day.
At 8 a.m. on November 16 Santwer was instructed by
Fields to work with the carpenters on the roof of the building
by carrying stock and materials to them whenever they
needed the same. Upon arriving there Santwer noticed that
the carpenters on the roof not only were carrying their own
stock and materials but they would not let him carry such for
them. Soon Santwer visited Fields, informed him of what had
occurred, and asked for further instructions. Fields replied
that he would "look into the matter." Not long thereafter
Santwer also called to the attention of Thomas Welch, the
union's steward on the job, that carpenters were carrying
their own stock and materials and had forbidden Santwer
from doing this work.
On Tuesday, November 17, Santwer again arrived at the
jobsite at 7:15 a.m., but he was not given any overtime work.
Nevertheless all the other laborers were directed to begin
work at 7:30 a.m., thus working a half hour overtime. Some
I All dates mentioned hereafter refer to 1970 except where otherwise
specifically noted
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time during November 17 Santwer repeated to Welch, the job
steward, Santwer's complaint that carpenters on the job were
performing some of the work of laborers.
On Wednesday, November 18, Santwer arrived at the job-
site before 7 a.m. At that time he saw the other laborers
working overtime. They were being supervised by Foreman
Fields. But Fields did not ask Santwer to join these laborers
in overtime work. As a result Santwer complained to Welch,
the union job steward, about not receiving any overtime.
At or about 3:30 p.m. on November 18 Fields presented
Santwer with a "payoff check" and told Santwer that Fields
had no more work for him. Continuing, Fields said that
Welch was "arguing too much about the overtime and we
[Welch and Santwer] were arguing too much about who was
doing what work on the job." Although Santwer insisted that
Fields was "kidding," he quickly became convinced that
Fields was serious. Notwithstanding that Fields laid off
Santwer for lack of work, Santwer on November 19 noticed
that Respondent had "two additional laborers" working at
the jobsite.
While employed by Respondent Santwer neither received
warnings, written or oral, from his superiors concerning his
work performance for Respondent, nor had his work per-
formance been criticized by Respondent. In fact, some time
in October Foreman Fields told Santwer that two other labor-
ers there (Welch and Donahue) were not doing the work and
that Santwer and Fitzgerald, another laborer on the fob,
"were the only two guys that were doing anything on the
job."
After Respondent laid off Santwer he discovered that he
had been paid for 1 hour more than he had worked during
his last week at the jobsite. Although this hour was for over-
time, Santwer insisted at the hearing that he did not work
overtime during that week.
Santwer's job of supplying with "nails ... boards, what-
ever they had to have that a laborer would normally do," was
"specifically confined to the location of the carpenters." How-
ever, while he was "in other parts of this job" he "talked to
other people." He so left his assigned job to talk to other
people because the carpenters "would not let him bring to
them lumber, or nails, or wheelbarrows, or anything else,"
and thus there were occasions when he did no work. This
action on the part of carpenters caused Santwer to complain
that they were violating "the jurisdictional rights of the labor-
ers."
The foregoing essentially constitutes Santwer's evidence on
behalf of the General Counsel. Thomas Welch's testimony as
witness for the General Counsel follows.
Welch, who is employed by Respondent as a laborer, is also
the job steward for the Union on the Mac-Back jobsite. His
regular working day at that site commences at 8 a.m. and
ends at 4:30 p.m. On November 16 and 17 he and all the other
laborers except Santwer worked overtime from 7:30 a.m. to
8 a.m Nevertheless Santwer had arrived at the site by 7:30
a.m. on both days and could have been assigned to overtime
work.
Sometime during November 16, as a result of a conversa-
tion with Santwer, Welch spoke to the labor foreman, Gerald
Fields, the carpenter foreman Walter Chipman, as well as the
carpenter steward on the job. In talking to Field's, Welch
complained that the work of the laborers on the roof of the
building was being performed by carpenters; that such work
had been assigned to laborers, and belonged to the laborers;
and that he, Welch, desired that a laborer be "sent back up
. to perform this work." Fields answered that he would
take care of it.
Later in the day on November 16 Welch again spoke to
Santwer. This led Welch to another talk with Fields, Chip-
man, and the carpenter steward. Welch repeated to Fields
that the carpenters persisted in performing the work of the
laborers and, "if it wasn't resolved," Welch would be con-
strained to request the laborers' business manager , Emerson,
to "let him [Emerson] take it from there if it wasn't reached
satisfactorily."
Still later on November 16 Welch contacted Mr. Emerson
and told him what had transpired on the job. The following
day, November 17, Emerson visited the jobsite and spoke to
Jim Canning, the job superintendent, in the presence of
Welch. I find that Canning is a supervisor within the meaning
of Section 2(11) of the Act, and an agent of Respondent. After
some discussion, all three decided that the work of moving
materials from stock piles on the roof belonged to laborers
and not to carpenters, and that the laborers would do it.
On November 17 Welch again spoke to Santwer. From
what he ascertained in this conversation Welch protested to
Foreman Fields that a carpenter was applying cupinol to
lumber and that this was a job that should be done by a
laborer. Replying, Fields said that Santwer should not be
complaining about overtime. Welch answered that he himself
had noticed this violation and that Santwer had not told him
about it. Then Welch telephoned to the Union's business
manager. Following this call Welch and Canning discussed
the cupinol work.
On November 17 Foreman Fields notified Welch that
"they would be starting work at 7 o'clock in the morning" the
next day. Welch and all the other laborers except Santwer
started work at 7 a.m. on November 18. Although Santwer
arrived about 7 a.m. on November 18, he was not instructed
to work overtime. On the other hand a new laborer employee,
Dave Milinazzo, reported to Welch on November 18 and
worked an hour of overtime on that day.
Sometime during November 18, following a conversation
with Santwer, Welch spoke to Foreman Fields relative to
Santwer's not obtaining any overtime work that day. Welch
asserted that Santwer and Welch both felt that Santwer
should be getting overtime as were the other laborers on the
site. Fields replied he did not know what Santwer was com-
plaining about.
Between 3:30 and 4 p.m. on November 18 Welch learned
that Santwer had been laid off. Shortly thereafter Welch in-
quired of Fields how many laborers had been laid off. When
Fields answered that only Santwer had been affected thereby,
Welch asked why a new laborer had been hired that morning.
Fields replied, "There wasn't any work." (This is so recorded
in the transcript. Apparently Fields meant that Santwer was
laid off because there was no work for him.) On November
19 two newly hired laborers, Tom Sheehan and Ed Reynolds,
reported for work for the first time at the jobsite.
According to Welch, no representative of the Respondent
spoke to him concerning Santwer's job performance.
On cross-examination, Welch testified in part that "all of
the overtime work in connection with the heater" had been
assigned to him, and that he was to receive "preference in
overtime" on any other type of work. Because of this Santwer
had "no basis for any complaint on overtime ... on the heat-
ers." Further, Welch asserted that he knew of no instance in
which another laborer, other than himself, "received three
consecutive hours of overtime and Santwer didn't get an hour
in the same period." Welch also on cross-examination tes-
tified that at no time did any representative of Respondent
suggest that anyone other than a laborer should do the work
of laborers, and that on "questions of a jurisdictional matter,
there was cooperation upon the part of the employer." Fi-
CARLSON CORPORATION 221
nally, Welch on cross-examination stated that "jurisdictional
matters" are settled between the two unions involved.
The General Counsel' s final witness , John Emerson, tes-
tified substantially as follows:
On November 17 Emerson, the Union's business manager,
spoke to Canning, Respondent's project superintendent, con-
cerning the work of laborers in connection with stock piling
of lumber and taking it from the stock piles to the carpenters.
As a result of this conference "the work was awarded to the
laborers by the superintendent."
B. Respondent's Evidence
Respondent's construction superintendent is James Can-
ning . About October 22 or 23 he became job superintendent
on the Mac-Beck job. Thereafter it "came to his attention"
that carpenters were doing work which the laborers should
do. As a result he "assigned a laborer to work specific with
the carpenters, so there would be no complaint about who
was carrying what, etc." The laborer so assigned was Walter
Santwer. In addition Canning also learned that "carpenters
were pouring cupinol, a wood preserver, and it was another
jurisdictional thing and we resolved" it.
At the time the laborers were working on the roof putting
in the wood blocking. It was Santwer's "specific, total, and
sole duties to tend the carpenters, and nothing else." But
Canning observed that Santwer's work "was below par." By
this Canning meant that Santwer "at least a dozen times a day
... was never with the carpenters, he was off some place
talking to somebody ... [in another area than that assigned
to Santwer]. And never where he was supposed to have
been." In fact the carpenter foreman on two or three occa-
sions told Canning that, when stock was needed for the car-
penters, "there was no way to find his laborer who was sup-
posed to bring his stock to him."
Consequently on October 30 Canning laid off or "released"
Santwer and Donahue, another laborer, because neither was
performing his work. Although Canning instructed the fore-
man to lay off Donahue and Santwer, the decision to lay off
was Canning's. But Canning did not confer with their fore-
man prior to doing so. However neither the foreman nor
Canning communicated or told Santwer why the latter was
laid off. Such layoff was not because of lack of work but,
rather, "because of his [Santwer's] inability to work," accord-
ing to Canning. Then Canning called Emerson, the business
agent of the Union, and asked him to replace Santwer and
Donahue with two other laborers on the ground that the
work of these two "was below par; they weren't holding up
their end." Nevertheless Emerson asked Canning to take
back Santwer and Donahue, promising to "tell them the
situation and . . convince them to pick up their end." On the
basis of this assurance Canning agreed to reinstate the two
men. They came back to the job on the following Monday,
November 2, each resuming the same job he had been doing.
Donahue's work became acceptable after November 2, but
Santwer's performance was "exactly the same [as it was]
before I [Canning] laid him off. He wasn't performing his job
at all. So I [Canning] released him [Santwer] "
Upon returning to work on November 2 Santwer's duties
required him "to be at and working assisting carpenters." But
Santwer "was never there"; from the time he came back until
November 18 Santwer did "exactly what he had done before"
which led to his discharge "the first time." Thus Santwer did
not assist the carpenters. Canning observed Santwer "every
day ... off the roof, walking on the stairs, talking to other
laborers or somebody else or what-have-you."
Canning further testified that in assigning overtime no dis-
crimination was practiced against Santwer. Continuing, Can-
ning averred that no definite pattern existed on overtime; that
as occasion required, men were assigned to work overtime
before the 8 a.m. regular starting time or after the usual
quitting hour; and that "no one was singled out by name or
number" to be assigned or to be excluded from such overtime.
On November 18 Canning instructed the labor foreman to
start the men to work at 7 a.m. to carry some quite heavy
frames, and since, "to my [Canning's] knowledge ... Santwer
was there with the group" of those arriving by 7 a.m.,
Santwer enjoyed some overtime that morning. On this same
day Canning hired two additional laborers. Resp. Exh. 1-f
and 2 indicate that Santwer was paid for 1 hour of overtime
for that day. (As recited above in connection with Santwer's
testimony, Santwer denied he worked overtime but claimed
that his last check erroneously included payment for an
hour's overtime during his last week on the job.)
At no time did Canning warn Santwer after November 2
that the latter was not attending to his duties. Although
Canning "would go to my foreman" whenever he desired to
convey messages or warnings to employees , Canning did not
notify Santwer 's foreman to warn Santwer that Santwer was
not performing his work. This is because Santwer was "shirk-
ing off a little bit" and, therefore, Canning felt it was unneces-
sary to "scream and holler" about this "little bit" to the
foreman.
On November 17 Canning met with Emerson, business
agent of the Union, regarding the cupinol work. During the
course of the conversation the two resolved the question of
applying cupinol and also "it was decided that the laborers
would do the work" of distributing stock and materials to the
carpenters on the roof.
C. Concluding Findings and Discussion
Initially I find that, crediting the General Counsel's evi-
dence, the record fails to disclose that Santwer was engaged
in union activity at any material time alleged in the com-
plaint. Hence I find that Respondent did not violate Section
8(a)(3) of the Act in denying overtime to, and discharging,
Santwer . Cf. Rotax Metals, Inc., 163 NLRB 72, 79; Pacific
Electricord Company, 153 NLRB 521, affirmed 361 F.2d 310
(C.A. 9). The question then is whether Santwer's conduct is
otherwise protected by the Act. Cf. Ben Pekin Corporation,
181 NLRB No. 165.
1. As to Santwer's discharge
It is my opinion, and I find, that Santwer was engaged in
activity safeguarded by Section 8(a)(1) of the Act when he
protested or complained that carpenters were performing
some of the work of laborers; that he was terminated because
he so protested or complained; and that the reason given at
the hearing, i.e., that he was laid off for unsatisfactory service,
is a pretext to disguise the true reason for his discharge.
That such conduct is protected by the Act is axiomatic, for
an employee may with impunity request that his employer
abide by the terms of his collective-bargaining contract, pro-
vided said claim is colorable and advanced in good faith.
Interboro Contractors, Inc., 157 NLRB 1295, 1298, enforced
388 F.2d 495 (C.A. 2); Procon, Inc., 161 NLRB 1304, 1307.
I find that Santwer acted in good faith and that his contention
was colorable that the work involved belonged to the labor-
ers. Cf. Ben Pekin Corporation, 181 NLRB No. 165; Rotax
Metals, Inc., 163 NLRB 72
And I find that Santwer was discharged for espousing the
claim that such work belonged to laborers and that the reason
given for his discharge is a pretext. Of course I recognize that
"No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or dis-
charged ... for cause." Section 10(c) of the Act; Wellington
Mill v. N.L.R.B., 330 F.2d 579, 586-587 (C.A. 4); Mitchell
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport, Inc., 152 NLRB 122, 123. And I have been guided
by the rule, which I have followed, that the burden of proof
to establish an unlawful discharge rests upon the General
Counsel and that I may not pass upon the reasonableness or
severity of an employer's judgment in discharging an em-
ployee for legitimate cause, N.L. R. B. v. Prince Macaroni Co.,
329 F.2d 803, 809 (C.A. 1); N.L.R.B. v. United Parcel Ser-
vice, 317 F.2d 912, 914 (C.A. 1); J. P. Stevens & Co., Inc., 181
NLRB No. 97
The finding that Santwer was discharged for engaging in
protected activity and the reason assigned is a pretext is based
on the entire record and the following subsidiary findings,
which I hereby find as facts. The fact that I reject the defense
as a pretext is not enough to sustain the General Counsel's
burden of proof, for denial of a defense does not amount to
affirmative evidence capable of sustaining that burden of
proof. NL.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883
(C.A. 1); Guinan v. Famous Players, 167 N.E. 235, 243
(Mass. ); Council of Bagel and Bialy Bakeries, 175 NLRB No.
148.
a. I find that the carpenters would not let Santwer perform
the labor work involved. In this respect I credit Santwer. This
caused Santwer occasionally to speak to others, as he had
nothing to do. But I find that in doing so Santwer was not
neglecting his work, for he was prevented from working.
Respondent's evidence inconsistent therewith is not credited.
b. Santwer was not effectively warned that he exposed
himself to the risk of discharge by talking to others when he
had no work to do. Failure to warn his probative value E.
Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F 2d 693, 699
(C.A. 8); Talon, Inc., 170 NLRB No. 42, fn. 1.
c. Santwer was abruptly discharged before the end of the
workweek and at a time when his complaints about the work
were current. Abruptness, timing, and manner of a discharge
shed light as to whether a termination is not for cause and
whether the asserted cause is offered as a pretext to disguise
the employer's antipathy to protected activity which
prompted the dismissal E. Anthony Sons, Inc. v. N.L.R.B.,
163 F.2d 22, 26-27 (C.A.D.C.); Arkansas-Louisiana Gas
Company, 142 NLRB 1083, 1085-1086. "The abruptness of
a discharge and its timing are persuasive evidence as to moti-
vation." N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d
497, 502 (C.A. 2), cert. denied, 355 U.S. 829.
d. At no time was Santwer criticized for his work Hence
it is difficult to understand why a satisfactory employee was
precipitately discharged unless it is inferred-and I do so-
that his protected activity, which the employer resented,
prompted the discharge. In this connection it is well to bear
in mind that if Santwer had been derelict in duty, his conduct
had been overlooked or condoned, for Superintendent Can-
ning admits he did nothing about what he considered work
"below par" by Santwer. Moreover, "the continuance of em-
ployment after the discovery of the claimed malfeasance was
of such duration as to provide inescapable indicia of after-
thought." N.L.R.B. v. Fairview Hospital, 443 F.2d 1217
(C.A. 7) decided April 28, 1971. See Evans Packing Com-
pany, 190 NLRB No. 70.
e. Fields told Santwer that the latter was laid off for lack
of work. But admittedly two new laborers were hired within
a day or two after that. Hence I find that a false reason was
given to Santwer to explain his being terminated. Giving a
false reason warrants the inference, which I draw, that the
true reason was his activity protected by the Act. Joseph
Antell, Inc. v. N.L.R.B., 358 F.2d 880, 883, (C.A. 1); Sterling
Aluminum v. N.L.R.B., 391 F.2d 713, 723 (C A. 8). Further,
Canning claimed Santwer was discharged because his work
was "below par." Thus Canning and Fields have attrubuted
different reasons for Santwer's termination. This inconsist-
ency indicates that the true reason is unlawful.
f. "Direct evidence of a purpose to discriminate is rarely
obtained, especially as employers acquire some sophistication
about the rights of their employees under the Act; but such
purpose may be established by circumstantial evidence." Cor-
ne Mills v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays
it is usually a case of more subtlety." N.L.R.B. v Neuhoff
Bros., 375 F.2d 372, 374 (CA. 5). 1 1 . .. the existence of valid
grounds for punitive action is no defense unless such action
was predicated solely on these grounds and not by a desire
to discourage protected activity." N.L.R.B. v. Fairview Hos-
pital, 443 F.2d 1217, decided April 28, 1971 (C.A. 3).
g. Finally it is not necessary that activity protected by the
Act be the only reason for Santwer's discharge in order to
render it unlawful. If his discharge was inflicted substantially
because of his protected activity it transgresses the Act not-
withstanding that a valid ground for discipline may exist
Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10);
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A.
1). I expressly find that Santwer's protected activity was a
substantial or motivating-but not necessarily the only-
reason for his discharge. N.L.R.B. v. Fibers International
Corp., 439 F.2d 1311 (C A.D.C.), upon which Respondent
relies, does not dictate a different result.
If material, I find that protesting being deprived of over-
time is protected by Section 8(a)(1) of the Act Cf. Northern
Metal Company, 175 NLRB No. 145, enf. denied 440 F. 2d
881 (C.A. 3), decided April 7, 1971, Rotax Metals, Inc., 163
NLRB 72, 76-77. Nevertheless, I specifically find that
Santwer was not discharged for such protest.
2. As to Santwer's loss of overtime
On the record developed in this case I conclude and find
that the General Counsel has failed to demonstrate by a
preponderance of the evidence that Santwer was denied over-
time for reasons proscribed by the Act At most, it has been
shown that Santwer was not assigned to overtime work and
that he objected to this treatment. But the record is bare of
evidence that such loss of overtime can be traced to his com-
plaining about the performance of work by carpenters which
he maintained came within the jurisdiction of laborers.
On this issue I find, crediting Santwer, that at all times
material he did not work overtime, notwithstanding that Re-
spondent's records reveal that he was paid for an hour's
overtime in the week ending November 20. I find that such
records do not accurately reflect th facts on this issue. Nor
do I credit Canning, Respondents superintendent, that
Santwer worked overtime on November 18, as I believe that
his recollection, upon which he relied, is faulty on this aspect
of the case, especially since Canning did not make the assign-
ments of overtime. In fact Fields, the foreman of laborers who
actually assigned overtime and would be in a better position
to testify on this issue, failed to testify corroborating Canning.
The unexplained failure to call Fields convinces me that he
was unable to contradict Santwer's contention that the latter
did not work overtime on November 18.
Accordingly I shall recommend that this facet of the case
be dismissed for want of proof.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activity of Respondent set forth in section III, above,
found to constitute an unfair labor practice, occurring in
connection with its operations described in section I, above,
has a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tends to lead to
CARLSON CORPORATION
labor disputes burdening and obstructing commerce and the
free flow of commerce.
V THE REMEDY
As Respondent has been found to have engaged in an
unfair labor practice I shall recommend that it be ordered to
cease and desist therefrom and that it take specific action, as
set forth below, designed to effectuate the policies of the Act.
In view of the finding that Respondent unlawfully dis-
charged Santwer, it will be recommended that Respondent be
ordered to offer him immediate and full reinstatement to his
former position or, if such is not available, one which is
substantially equivalent thereto, without prejudice to his se-
niority and other rights and privileges. It will further be
recommended that Santwer be made whole for any loss of
earnings suffered by reason of his discharge.
In making Santwer whole Respondent shall pay to him a
sum of money equal to that which he would have earned as
wages from the date he was terminated to the date of rein-
statement or a proper offer of reinstatement, as the case may
be, less his net earnings during such period. Such backpay, if
any, is to be computed on a quarterly basis in the manner
established by F. W. Woolworth Company, 90 NLRB 289,
with interest thereon at 6 percent calculated according to the
formula set forth in Isis Plumbing & Heating Co., 138 NLRB
716. It will also be recommended that Respondent preserve
and make available to the Board or its agents, upon reasona-
ble request, all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
Finally, it will be recommended that Respondent post appro-
priate notices.
Santwer's discharge does not reflect a general disregard or
hostility to the Act, and I so find. Accordingly, I find that a
broad remedial order against Respondent is not warranted.
Rather, I find it will effectuate the policies of the Act to enjoin
Respondent from repeating the conduct found above to be a
violation of the Act and similar or like conduct
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce as defined in Section
2(6) and (7), of the Act.
3. By discharging employee Walter J. Santwer for present-
ing a complaint relating to work of laborers done by carpen-
ters, Respondent committed an unfair labor practice prohib-
ited by Section 8(a)(1) of the Act.
4. The foregoing unfair labor practice affects commerce
within the purview of Section 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair labor
practices alleged in the complaint
Upon the foregoing findings of fact, conclusions of law, and
the entire record in this case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:'
3 In the event no exceptions are filed as provided by Section 102 46 of
the Board's Rules and Regulations, the findings, conclusions, recommenda-
tions, and recommended Order herein shall, as provided in Section 102 48
of said Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be waived
for all purposes
ORDER
223
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees, or otherwise discriminating in
any manner in respect to their tenure of employment or any
term or condition of employment, because they engage in
activity having as its purpose the submission, presentation,
and processing of protests relating to the assignment of work
to craft alleged to be not entitled thereto.
(b) In any similar or like manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer Walter J. Santwer immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent one, without prejudice to his senior-
ity and other rights and privileges previously enjoyed by him,
and make him whole for any loss of pay he may have suffered,
with interest at the rate of 6 percent, by reason of Respond-
ent's discrimination against him, as provided in the section
above entitled "The Remedy."
(b) Notify immediately Walter J. Santwer, if presently serv-
ing in the Armed Forces of the United States, of his right to
reinstatement, upon application after discharge from the
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended.
(c) Preserve and, upon reasonable request, make available
to the Board or its agents, for examination and copying, all
payroll records and reports and all other records necessary to
ascertain the amount, if any, of backpay due under the terms
of this recommended Order.
(d) Post at its place of business at Cochituate, Massa-
chusetts, and its construction site in Billerica, Massachusetts,
copies of the notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for Region
1, after being signed by a duly authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily displayed. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not found herein.
' In the event 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 1mted States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
' 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 1, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX of pay he may have suffered by reason of his discharge,
with interest thereon at the rate of 6 percent.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that
WE WILL NOT discharge employees, or otherwise dis-
criminate in any manner in respect to their tenure of
employment or any term or condition of employment,
because they engage in activity having as its purpose the
submission, presentation, and processing of protests
relating to the assignment of work to craft alleged to be
not entitled thereto.
WE WILL NOT in any similar or like manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL offer Walter J. Santwer immediate and full
reinstatement to his former position, or if such position
no longer exists , to a substantially equivalent one, with-
out prejudice to his seniority and other rights and privi-
leges enjoyed by him, and make him whole for any loss
CARLSON
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify the above-named individual, if presently serv-
ing 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, as
amended.
This is an official notice and must not be defaced by any-
one.
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, Bulfinch
Building, 15 New Chardon Street, Boston, Massachusetts
02114, Telephone 617-223-3300.