Perremoud, Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 9, 1978236 N.L.R.B. 804 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perrenoud, Inc. and Larry John Kinderman. Case 18 CA 5173 June 9, 1978 DECISION AND ORDER BY CHAIRMAN FANNIN(; AND MEMlBHIRS JE NKINS ANI) Mt RPI'Y On April 20, 1977, Administrative Law Judge Mel]- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions 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 Administrativ e I aw Judge. to adopt his recommended Order, and to modifs the remedy so that the interest is to be computed in the manner set forth in Hflorida Sce/l ('orporaliotL 231 NLRB 651 (1977). Contrary to our dissenting colleague. we agree with the Administrative Law Judge's conclusion that Respondent discharged Larry John Kinderman be- cause he engaged in protected activits i.e., he coni- plained to the Union that he wsas allegedly not receiv- ing the correct contract wage scale. Respondent is engaged in the installation of under- ground pipe in Wisconsin. Its operation is seasonal, with peak employment of about 70 employees in the warm weather, down to about 15 emplovees from November through March. Respondent was a parts to a contract with International Union of Operating Engineers, Local 139B. AFI. -CIO, and Kinderman was a member of the Union. While Kinderman was employed as an equipment operator in June 1 97 6 .1 he complained to Phil Pru- sak. his business representative, that he was not being paid the proper operator's scale pursuant to the col- lective-bargaining agreement.2 Prusak apparently agreed with Kinderman and said that he would talk to Jack Parr, another business representative. At a later unspecified date, but presumably in earl or All dates hereinafter ire 1976 2Although the Adnministratlve I aw Judge was ataicl of thii testlnlillOni he found it "somewhat confusing. though n1ot imporlant teo the res.olull-ll iti this case." and observed that "'i Jinte [Kinderinl;l] was being pli full operator's scale." As noted iliirtl, anld as more flull discussed hclh-s. Kinderman's basis for going to the I nion was that he bch liecd trha hlic ias not receiv ing the correct c'ontratl rale for peralting etquipmcil Irn/ill ait ilt June until August 14 midsummer, while he was still employed as an opera- tor., Kinderman spoke to Parr, at which time the lat- ter said that he was not sure about the scale for "working at a landfill." On August 14, Kinderman spoke to Respondent's president. Stephen Perrenoud, "regarding his wages." Also on August 14, Perrenoud informed Kinderman that he had no more work for him as an operator) but Respondent offered to keep him on the payroll as a truckdriver for $7.50 an hour. Kinderman accepted Respondent's offer and worked as a truckdriver until he was discharged. After he began work as a truckdriver, Kinderman complained to the Union that he was not being paid operator's scale. The Union, being unaware that Kinderilan was now working as a truckdriver, re- laved these complaints to Respondent's president, Perrenoud. In fact, on October 1, according to Perre- noud. Union Representative Parr called and said that Kinderman had "a grievance . . . and that IRes- pondent] would have to pay him operator's scale for all the hours that he worked that summer." Shortly thereafter. Perrenoud admitted, he approached Kinderman at a jobsite and harshly criticized him for going to the Union before talking to Respondent about his wages. Furthermore, Respondent admit- tedly discharged Kinderman and told him that he would never work for him again. These facts clearly make out a violation of the Act. We note that the above facts are those credited by the Administrative Law Judge. Our dissenting col- league. however, has set out another set of facts upon which, she asserts, the Administrative Law Judge made no credibility resolutions. She notes that Perre- noud testified he also told Kinderman in the dis- charge conversation that he would not pay operator's wages for truckdriving; she then finds, through a self-evidently strained process of reasoning, that Kinderman's testimony is not inconsistent with this additional testimony of Perrenoud: and she finds that employee Zenner. who was credited by the Ad- ministrative Law Judge on another point, confirmed the additional testimony. She therefore finds that Perrenoud's statement that he could not pay operator's rates for truckdriving stands "essentially uncontradictcd." In this conclusion, our colleague is in error for her analysis overlooks the testimony of Howard Rvan. another employee witness to the dis- charge incident, whose testimony was also credited b' the Administrative l.aw Judge. Ryan testified that he did not hear Perrenoud say that he could not af- ford to pay operator's wages for a truckdriver.4 Kinderml in greedihar the lparticula r ohb no which he was operating eqtlipmelt i a, fim41e d t 1 - Auiuvl 14. 4 s hiC Zllfcet nlld.il.ti that RKlin u.\ nrot picscilt for Lill the Perrenoud- Kinlderilan din ha tir.a c rtl erSalton, Rs.an'S teCopy with citationCopy as parenthetical citation