S. J. Carlson & Son, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1969

178 N.L.R.B. 701 (N.L.R.B. 1969)

S. J. CARLSON & SON, INC.
S. J. Carlson & Son, Inc. and Ralph Riley. Case
38-CA-605
September 29, 1969
DECISION AND ORDER
By CHAIRMAN MCCU LLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 9, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondent has not
engaged in certain unfair labor practices alleged in
the complaint and recommending that the Board
dismiss the complaint in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
'While we agree with the Trial Examiner that the General Counsel did
not establish that the Respondent engaged in any unfair labor practices by
reason of Ralph Riley's discharge on Janaury 8, 1969, we do not adopt,
and specifically disavow, his comments with respect to the relative weight
to be accorded "timing" as a factor in drawing inferences regarding
unlawful motivation
TRIAL EXAMINLR'S DECISION
STATEMLNT OF THE CASE
HERBERT SILBERMAN, Trial Examiner Upon achargeftled
on January 24, 1969. by Ralph Riley, a complaint, dated
February 12, 1969, was issued alleging that the
Respondent, S. J Carlson & Son, Inc , herein sometimes
called the Company, has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the National Labor
Relations Act, as amended Respondent's answer denies
that it violated the Act. A hearing in this proceeding was
held in Rockford, Illinois, on April 15, 1969. Thereafter,
the General Counsel filed a brief which has been carefully
178 NLRB No. 113
701
considered.
Upon the entire record in the case and from my
observation of witnesses and their demeanor, I make the
following.
FINDINGS OF FACT
1. THE BUSINFSS OF THE COMPANY
Respondent , an Illinois corporation , is engaged in the
business of installing plumbing and heating systems. In
the course and conduct of its business , Respondent , during
the past 12 months, which period is representative of its
operations , purchased and caused to be delivered to its
premises and job sites in Illinois from places outside that
State goods and materials valued in excess of 550,000.
Respondent admits, and I find , that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Local 32, Laborers' International Union of North
America, AFL-CIO, herein sometimes called the Laborers
Union, and the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada. herein sometimes called
the Plumbers Union, are labor organizations within the
meaning of Section 2(5) of the Act.
IIi. THE ALLEGED UNFAIR LABOR PRACTICES
General Counsel contends that the Respondent on
January 8. 1969. unlawfully terminated the'employment of
Ralph Riley because the Company believed that Riley,
although a member of the Laborers Union was
instrumental in causing Rudolph Ammon. a business
representative for the Plumbers Union, to visit
Respondent's offices on January 3, 1969, and to protest
the fact that the Company was using laborers and not
licensed plumbers to lay cast-iron soil pipe on a particular
job, referred to as the Canfield Clinic Job. As a result of
Ammon's protest, the Company assigned a plumber to the
job. Respondent denies that Riley was discharged for such
reason. Its defense is that Riley for a substantial period of
time assumed a contemptuously insubordinate manner in
his dealings with his employer. shirked his work and for
those reasons was discharged. The Company further
contends that the decision to discharge Riley was made on
November 2. 1968, prior to Ammon's complaint, but was
not carried out until some months later when for seasonal
reasons work became slack.
The Company is a contractor in the building and
construction industry engaged principally in installing
plumbing, heating, and air conditioning systems. It also
does considerable work in the streets such as running
extensions to sewer lines and to water mains. The
Company employs laborers, plumbers, and other craft
classifications. All the Company's employees are members
of the various unions having jurisdiction of the types of
work performed by them. The Company recognizes and
bargains with such unions as the representatives of its
employees. The contract with the Laborers Union contains
no seniority clause nor any restriction upon the Company
laying off or discharging its laborers. However, the
Company's practice has been to retain a so-called basic
crew year around. Its reasons for doing so are to
guarantee that the better employees will remain during the
702 DECISIONS Oh NATIONAL LABOR RELATIONS BOARD
busy seasons and, according to Respondent's president,
Roland Carlson, because the Company believes that a
conscientious workman should earn a full week's pay
every week of the year.
Ralph Riley began to work for the Company about
June 1963 as a laborer. He became part of the basic crew
and worked continuously without layoff until he was
terminated on January 8, 1969.
Although Riley was a laborer and a member of the
Laborers Union, he testified that on three different
occasions during his 5 years of employment with the
Company he complained about the fact that he was
assigned to lay pipe which he believed to be plumbers'
work.' He was not subject to a layoff or threat because of
such complaints.
The critical events relied on to support the complaint
largely turn on Riley's assignment to the Canfield Clinic
job. According to Riley, about noon on January 2, 1969,
Supervisor Bob Sargent told him to lay pipe. Riley
answered, "I didn't want to lay the pipe because I'd had
trouble with the Plumbers on it " Sargent responded that
he was acting under Carlson's instructions. To this Riley
said, "Rollie [Carlson] knows better . . . . I told him
before that if the Business Agent came out and said
anything to me that I'd go to the office with him." Riley.
nevertheless, laid pipe as he was instructed to do.
The next morning in the shop, according to Riley. Bill
Moore and Lowell Herbert, who are plumbers employed
by Respondent, asked Riley who was laying the pipe at
the Canfield Clinic lob and Riley replied, "You're looking
at one of them."'
The Plumbers Union business agent, Rudolph Atnmon,
testified that he received an anonymous telephone call that
laborers were laying pipe at the Canfield Clinic Job He
went to the site to investigate. There he found that
laborers were laying cast-iron soil pipe and that there was
no plumber assigned to the lob He then went to the
Company's offices and spoke to Roland Carlson
According to Ammon, Carlson explained that the laborers
were not supposed to lay the pipe but were only supposed
to dig some ditches and that a plumber from another job
was going to the Canfield Clinic site to lay the pipe.
Ammon told Carlson "that he'd better get a [plumber]
out there or it will cause some trouble" and threatened
that if the matter was not taken care of "we'd have to pull
the job " After Ammon's visit the Company assigned a
plumber to the job
Ammon's visit to the Company was on Friday, January
3, 1969 Riley was discharged the following Wednesday,
January 8.
1-or y evidence of discriminatory motivation General
Counsel depends upon the following testimony of Roland
Carlson-
Q. [By Mr Stanton] The company was aware that
Mr. Riley was spending time, when he was paid by the
Company, making efforts to protect the interests of
other unions?
'No evidence was adduced at the hearing regarding the practice of the
Company or of other employers in the area, whether pursuant to contract
or otherwise, of assigning laborers or members of the various crafts to do
any particular work Thus, there is no basis in the record for determining
whether or not Riley's complaints were justified Furthermore, Riley
testified that the business agent for the Laborers Union had said it was
permissible for laborers to lay pipe
'Riley testified that he did not speak to the business agent of the
Plumbers Union about laborers laying the soil pipe at the Canfield Clinic
project
A. Yes. I would say that but that's not any different
than many of our others . . it's a general condition
Q. (By Mr. Stanton ) It is the Company ' s position
that they felt it was unfair for Riley to spend time and
effort to protect the interests of other employees and
other unions on time when he was paid by S. J.
Carl son?
A I presume 1 might say yes to that but that's no
different from what we have ... many, many others
are doing the same thing. We face that consistently
Q. [By Mr. Stanton] . . you were aware that Riley
told the men not to let the Company drive them?
A. I was aware of that, yes.
Q. And you were aware of the Net prior to his
discharge, is that correct?
A. I was aware of that many, many times.
Q And prior to his discharge"
A. Yes, many, many times
* * * * *
Q [By Mr. Stanton] Prior to Mr. Riley's discharge,
you thought that Riley might have had something to do
with Mr. Ammon's visit. Is that correct?
A. I suppose I'd say yes to that.
According to Roland Carlson, during Riley's last 3
years of employment he had become insubordinate and
tended to shirk his work. Although Riley had the
capabilities of being a good employee, Carlson testified
that "[i]t got to the point, eventually, where he felt that he
was doing us a favor to work for us ... " It was this
attitude on Riley's part which the Company contends led
to his discharge.
Carlson further testified that on several occasions
during Riley's employment with the Company he had
given consideration to discharging Riley, and finally on
November 2. 1968, reached a firm decision to terminate
Riley On the day in question Riley and another laborer,
Donald Bestor, were digging manholes The Company was
under pressure to complete the particular work quickly.
When Carlson visited the site on November 2, he observed
that Riley was "standing down there piddling around. Just
doing nothing, while Bestor [was] working his head off.
So, I said to Riley, 'Riley, we've got to get this job done.
[W]e've got to get going.' [Riley] said, 'I'm doing
all I'm going to do.' I said. 'Riley, you and I have talked
about this many, many times. I told you many times that
if you don't want to work for us and you don't appreciate
working for us, why don't you get up and go back to the
shop and get your check? . . You don't have to stay
here. I've put up with it for the last time. There won't be
another time.' " Carlson further testified that he "had to
get down in the hole and dig the hole" himself '
Upon his return to the office on the same day, Carlson
instructed Superintendent Dale Anderson and Office
'I credit Carlson's version of the incident Riley did not deny that any
angry exchange of words took place on the occasion in question According
to Riley, "Me and Don was down in the hole [flinging] dirt out and Rollie
he hollered we wasn t getting dirt out of the hole and he hollered
down he said, 'Riley, you're big and strong' I said, 'i won't he very
long if I keep this up all day.' And Rollie says, 'You know what you can
do about it ' I said, 'Yes, and you do too; and that was all that was said "
There is no denial that on the occasion in question Carlson himself dug
part of the hole
S J. CARLSON & SON, INC. 703
Manager Ken Linenmcyer that as soon as work becomes
slack Riley should be laid off. However. Riley was not
terminated until shortly after Ammon's visit to the
Company on Friday, January 3, 1969 On Monday,
January 6. Ken Lincnmeyer. the Company's bookkeeper
was instructed by Carlson to make out Riley's check and
to give it to him on Wednesday, January 8. the end of the
pay period. According to Carlson, about a week before
Riley was discharged he learned that Anderson had laid
off some members of his crew but had not terminated
Riley. Ile questioned Anderson as to why Riley had not
been laid off and Anderson explained that he had
forgotten about Carlson's instructions. Anderson
corroborated Carlson Anderson testified that about
Christmastime he had laid off some men at which time
Carlson mentioned that he should lay off Riley Anderson
indicated that he wanted to keep Riley on the job he was
then doing and Carlson instructed him that "[W]hen we
get caught up with that kind of work, we'll lay him oft."
Anderson further testified that either "the morning before
or the night before [Riley was laid off] ... [Carlson] said,
`We might as well lay [Riley] off We have caught up with
the work ' " The Company then had stopped work at
the Canfield Clinic which was the last outside job that it
did during that winter season.
In a well-written brief, General Counsel gives the
following summary of his position
From the above discussion, it is evident that the
November 2 incident and the events leading up to it
were not the motivating reasons for Riley's layoff on
January 8, 1969. The only remaining explanation for
the layoll' is that it was motivated by Respondent's
belief that Riley was responsible for the Plumber
Business Agent's visit to Respondent's office on
January 3. 1969, to protest the assignment of plumbers
work to laborers. The conclusion is supported by the
fact that Riley's check was prepared the following
Monday Respondent must have viewed Ammon's
complaint as important since it immediately sent a
plumber to do the work. Moreover, the complaint took
on an added importance since it was accompanied by a
threat to pull the rush job, which would result in
causing Respondent to break its word to the Clinic that
the sewers would be laid before the rain or snow came
Carlson admitted that Respondent resented Riley's past
activities of protecting the interests of other unions and
that he was the kind of' employee who minded other
people's business. His belief that Riley was responsible
for Ammon's visit could only have increased this
resentment
Angered by the thought that Riley could be so
unfaithful, Carlson followed his normal practice of
terminating unfaithful employees.
General Counsel makes two affirmative points in
support of his argument. The first is that the timing of
Riley's discharge indicates a discriminatory motivation
because Carlson gave final instructions to terminate Riley
on the Monday immediately following Ammon's visit on
the previous Friday, which visit Carlson suspected was
somehow prompted by Riley. Although timing is a factor
which the Board considers in drawing inferences regarding
unlawful motivation, its weight in any given case is
dependent upon its relationship to other incriminatory
evidence Timing is subject to the infirmity that the
particular interval between the linked events was merely
coincidental. The factor of coincidence must be
minimized, if not eliminated altogether, before timing can
be given significant weight to support a conclusion
regarding a party's motivation Here there are no other
significant incriminatory factors to which the timing of
Riley's discharge can be related to give controlling
significance to the fact that he was terminated soon after
Ammon's visit. General Counsel's second point is that the
Company must have viewed Ammon's complaint and
threat to pull the job as important because it immediately
sent a plumber to do the work While it may be true that
Carlson believed Ammon would have carried out his
threat if the Company did not dispatch a plumber to the
job, it does not follow that the Company viewed Aminon's
visit as a matter of serious concern. There is no evidence
that as a consequence of Ammon's visit the Company's
operations were either hampered or made more expensive.
Nor is there any evidence that similar complaints by
business agents of the various craft unions seeking
assignments of work were unusual and were not accepted
as a normal incident of doing business' Stated otherwise,
there is no evidence indicating that the Company or
Carlson was inclined to engage in reprisals against the
employees who might have been responsible for reporting
to Ammon that no plumbers had been assigned to the
Canfield Clinic job. There is an absence of evidence
demonstrating a disposition on the part of the Company
to discharge Riley (or any other employee) for having
reported the Canfield Clinic job to Amnion.
General Counsel makes a parallel argument to the
effect that Riley was discharged because of Carlson's
accumulated resentment, triggered by the Ammon
incident, of Riley's past activities in protecting the
interests of other unions and of' Riley's involvement in
other people's business. The difficulty with this argument
is that it appears from Carlson's testimony that other
employees were guilty of the same offenses and there is no
basis in the record for inferring that such offenses were
viewed by the Company to he of sufficient magnitude as
to impel the discharge of employees
Although General Counsel vigorously attacks Carlson's
credibility, his prima facie case is dependent upon
Carlson's testimony. While it is not unusual to credit a
witness in part and to discredit other portions of the
witness' testimony. in this case, contrary to General
Counsel, 1 find that Carlson was generally a truthful and
reliable witness I credit the testimony of Roland Carlson
that on Novembei 2, 1968, he finally decided to terminate
Riley and had given instructions to such effect to,
Anderson I also find credible Carlson' s and Anderson's
explanations for the delay until January 8, 1969. in
effecting the decision to terminate Riley.
As I find that Ralph Riley was terminated, not for the
reasons asserted by General Counsel, but because of a
final act of insubordination on his part following a long
period of generally unsatisfactory behavior, I further find
that the General Counsel has not proved that the
Respondent has engaged in any unfair labor practices by
reason of Riley's discharge. I shall therefore recommend
that the complaint herein be dismissed.
CONCI USiONS o i. LAw
Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
'Carlson testified that there have been no visits Irom the business agents
of the Laborers Union, and that there were 3 or 4 visits by business agents
of the Plumbers Union in the last 5 years "not directly in that area, but
possibly in some other areas" Carlson was not questioned about visits by
the business agents of the other craft unions.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER conclusions of law and upon the entire record in the case,
I iccommend that the complaint in this case be dismissed
Upon the basis of the foregoing lindings of fact and in its entirety.