MacDonald Engineering Co.

National Labor Relations Board - Board Decisions

Mar 26, 1973

202 N.L.R.B. 748 (N.L.R.B. 1973)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MacDonald Engineering Co. and William E. Kamin-
ski. Case 38-CA-1411
March 26, 1973
DECISION AND ORDER
On August 14, 1972, Administrative Law Judge'
William J. Brown issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief supporting the Decision.
The Board has considered, the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
1. The Administrative Law Judge found that
Respondent violated Section 8(a)(3) and (1) of the
Act by discharging employee William E. Kaminski
because of his protected activities in attempting to
enforce the contract between Respondent and the
Union. At the hearing, when Kaminski and Union
Business Agent Newell were cross-examined, Re-
spondent's counsel, over the objections of the General
Counsel z asked some general questions as to their
knowledge of the contract's grievance-arbitration
provisions. Kaminski's answers suggested he was not
familiar with these contract terms. Newell stated
basically that Respondent was not a member of the
Contractors Association before which such matters
were taken and could not recall any specific clause
which protected anyone other than stewards from
discrimination because of their action in enforcing
the contract. When presenting its own case, Respon-
dent offered no testimony relative to the grievance-
arbitration procedure. Nor did Respondent seek the
admission of the contract into evidence or urge the
Administrative Law Judge to defer to arbitration. In
its brief to the Judge, Respondent again made no
argument for deferral. The Judge decided the case on
the merits and made no reference to arbitration in his
Decision.
In its exceptions to the Board, Respondent, citing
Collyer Insulated Wire,3 urges for the first time that it
was error for the Administrative Law Judge not to
have deferred the dispute to arbitration. Respondent
specifically contends that the collective-bargaining
agreement between it and the Union provides for
binding arbitration of any grievance at the request of
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 In arguing in support of his objection, the General Counsel stated
It gets to be clear to me that they intend to raise some problem
whether this should be handled as grievance or as an unfair labor
practice, and I don't think this line of testimony with this witness goes
to that issue If they wish to raise it , they can do it with their own party
and it will be lot simpler and shorter, and it is beyond the scope of this
either party. Accordingly, Respondent now argues
that the Board should defer. On the record before us,
we find no merit in Respondent's contention.
As noted, although the subject of the availability of
machinery for arbitration of this matter as it related
to Kaminski was broached at the hearing, at no time
did Respondent specifically assert that the Adminis-
trative Law Judge should have deferred. Further-
more, the record is unclear regarding the arbitrability
of a grievance by an employee such as Kaminski,4
and just what powers an arbitrator would have under
the contract. While these questions may have been
answered had such issues been litigated at the
hearing, this was not the case. We therefore conclude
that the record evidence before us is insufficient for a
finding that deferral is warranted.5
2. On the merits, the record reveals that at all
times relevant, Respondent has been doing work on
a fob which extends over a 10-acre site and which has
required the employment of about 100 employees
from the various crafts including Laborers' Local
Union 1203, Laborers International Union of North
America, hereinafter referred to as the Union.
Although the agreement between Respondent and
the Union was not put in evidence, it apparently
prohibits the general foreman on the job from giving
orders directly to the laborers, and requires that a
labor foreman be appointed for giving orders to such
employees on each specific crew. Nevertheless,
General Foreman Ted Myers handled a crew of
laborers himself which included Kaminski, a union
member. Frequently other foremen would assign a
laborer from Myers' crew to ajob different from the
one which Myers had assigned him. This often
caused the laborer to have to explain why he was not
performing the job to which he initially was assigned.
As a result, the members of Myers' crew were
confused as to the identity of their foreman.
On February 24, 1972, Kaminski discussed the
problem with Union Business Agent Newell. He was
informed that Newell had previously warned Myers
not to handle a crew himself. Newell promised
Kaminski he would go out on the job and straighten
out the problem.
On the following morning before beginning work,
Kaminski met with the other crew members and told
them of his conversation with Newell and that
Newell would come out to the job and straighten the
problem out. Nevertheless, some men felt Myers
witness
3 192 NLRB No 150
4 In this regard, General Counsel, in its briefs to the Administrative Law
Judge and to the Board, argues the contract protects only stewards (which
Kaminski was not) from discharge for attempting to enforce the contract
5 For reasons stated in their dissenting opinions in Collyer and
subsequent cases , Members Fanning and Jenkins would not, in any event,
defer to arbitration in this case
202 NLRB No. 113
MACDONALD ENGINEERING CO 749
should be told to place each laborer under a labor
foreman. Kaminski agreed to do so. Kaminski
relayed the group decision to Myers stating "we are
violating our agreement by you giving us orders and
us taking orders, so appoint us a foreman." Myers
insisted however that Newell had approved of the
existing practice (of Myers directly supervising a
crew).
On Saturday of the same week, Kaminski again
visited Newell and discussed what had occurred on
the job. As a result Newell went to the jobsite on the
following Monday. According to Newell, when he
talked to Myers, the latter stated:
I want to tell you this. Bill Kaminski popped off
to me about my giving him orders.
Newell went on to tell Myers that as a supervisor he
(Myers) could not give orders and that he (Newell)
had told Kaminski that Kaminski did not have to
take orders from anyone but a labor foreman.6
While he was at the site, Newell also talked to
Edwin C. Brown, the superintendent of the project,
and complained that too many orders were being
given by the general foreman. Brown agreed to hire a
substitute foreman. Later that afternoon Kaminski
passed where Myers and Foreman John Bland were
standing together. Kaminski was stopped by Myers
who asked "Are you happy now?" (or "Are you
satisfied?" as admitted by Myers). According to
Kaminski, when he replied in the affirmative and
asked why, Myers stated "I am not your boss any
more. John Bland is your boss now. He's going to
give you your orders. Does that make you happy?"
Kaminski's testimony regarding the conversation was
corroborated by Bland.
Shortly prior to March 1, 1972, Brown had become
aware of the fact that certain ironworkers had been
leaving their jobs early. Through the respective
stewards, he warned all crafts that the early quitting
would have to cease. Although the end of the
workday was 4:30, the existing practice was to permit
the employees to quit early enough to reach the
parking lot by, but not before, 4:15. It appears that
the only signal the employees had to inform them of
quitting time was the arrival of the tool truck which
comes to the area to pick up the tools employees use.
During the afternoon of March 1, it rained lightly
from time to time. At about 3:30, heavier rain forced
Kaminski and his fellow laborers to leave their jobs
and seek shelter in a nearby powerhouse. None of
the employees returned to work. When the tool truck
arrived at the pier where Kaminski was working, he
helped load the truck and thereafter, along with
several other laborers, left the pier, turned in his
identification brass, picked up his lunch bucket, and
followed some 10 or 15 other employees toward the
parking lot.
According to Kaminski, when he arrived at the
parking lot shortly after 4 o'clock, he saw that Brown
was already there. When Kaminski got into his car
and started out of the lot after having waited for a
truck which was unloading other employees to move
behind him, he was stopped by Brown. Brown asked
if Kaminski were quitting and Kaminski said he was
quitting on account of the rain. Brown asked for his
hard hat and told him since he was quitting not to
report for work on the following day. Kaminski
protested, pointing out the fact that he was not
quitting but that it was raining and everybody else
had quit for the day.
When Kaminski reported to work on the following
day, the steward told him he was wanted in Brown's
office. When he and the steward got there, Brown
stated Kaminski had quit early on the preceding day
and no longer worked for Respondent. He told the
steward to get Kaminski off the site.
While Kaminski was waiting for his pay he had a
conversation about the discharge with Foreman
Bland. According to Kaminski, Bland stated, "I
know you weren't quitting there any earlier than
either of the other guys. I figured something like this
would happen because of what you said to Ted
[Myers]." Bland admitted having the conversation
with Kaminski and recalled having said (regarding
the discharge) "Well I think maybe it is something
that you jumped on Ted [Myers] about giving orders
to the men." Newell was unsuccessful in his efforts to
get Brown to immediately put Kaminski back to
work.
The Judge found that on the day in question,
Kaminski did nothing more than follow the custom
and practice in leaving work when he did. He
concluded that Kaminski was in fact discharged
because of his militance in enforcement of the labor
agreement and the customs and practices grown up
in the administration of the agreement, as well as his
insistence on the assignment of a foreman, and,
under the circumstances, was discharged in reprisal
for his participation in and leadership of concerted
activities in furtherance of the employee demand that
a labor foreman be assigned to direct the laborers'
work. We agree.
The record discloses a practice by which employees
were permitted to leave work upon the arrival of the
tool truck and to arrive at the lot about 4:15. The
facts further show, as found by the Judge, that
Kaminski and others, consistent with such practice,
started homeward upon the arrival of the tool truck.
Although Kaminski along with others arrived at the
6 It appears that sometime in 1971 Myers had sought unsuccessfully to
clear the Union as a labor foreman
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lot a few minutes before 4:15 on the day in question,
we note the fact that no other employee returned to
work after the rain, and Kaminski was the only
person singled out for discharge despite Foreman
Bland's statement to Brown that Kaminski was one
of the best workers in his gang. Furthermore Myers'
expressed hostility toward Kaminski's "popping off"
in efforts to enforce that portion of the contract
which called for appointment of a labor foreman for
Kaminski's crew resulted in Respondent's having to
hire an additional foreman. Thus, in view of
Respondent's disparate treatment of an employee
whose work was highly valued by his foreman,
against the background of Respondent's knowledge 7
of Kaminski's concerted protected activities and
hostility thereto, we believe the reason asserted for
Kaminski's discharge is a pretext and that the real
reason was his attempts to have Respondent adhere
to contract terms. We also view as evidence of
discriminatory motivation Brown's adamant refusal
to honor Newell's request that Kaminski be rehired
even though, according to Newell, Brown admitted
Kaminski was a good worker. The severe penalty of
discharge for leaving a few minutes early at a time
everyone had quit because of the rain and its
occurrence only a few days after Kaminski's effort
on behalf of the Union is additionally indicative of a
retaliatory motive. Accordingly, we agree with the
Judge that Respondent discharged Kaminski in
violation of Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, MacDonald Engi-
neering Company, Oglesby, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
7 We find without merit Respondent's contention that at the time he
fired Kaminski , Brown had no personal knowledge of Kaminski 's efforts to
enforce the contract The record clearly shows that Kaminski insisted upon
the laborers ' contract rights when he as spokesman for the crew insisted that
Myers appoint a labor foreman for the laborers present As Myers was
found to be a supervisor , the law is well settled that the knowledge of a
supervisor is imputed to the employer See Protective Coating Inc. 170
NLRB 647 Moreover, Bland's statement to Kaminski almost immediately
after Kaminski was discharged that he believed the discharge resulted from
Kaminski's statement to Myers indicates a general awareness among
supervisors that Kaminski was engaged in protected activities While the
Judge made no specific finding on Bland's status , the record shows he uses
independent judgment in assigning the 12 laborers in his crew to different
tasks , is responsible for timekeeping and seeing that the work is properly
done , evaluates work performance, and selects employees for lay off
Accordingly , we find that he is a supervisor within the meaning of the Act
and that his knowledge of Kaminski ' s activities is also imputable to
Respondent
TRIAL EXAMINER ' S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended , hereinafter referred to as the Act , came on to
be heard at LaSalle, Illinois, on May 25, 1972.1 The
underlying charge of unfair labor practice was filed March
3 by the above-indicated Charging Party and the complaint
herein was duly issued April 7, by the General Counsel of
the National Labor Relations Board acting through the
Board ' s Regional Director for Region 38. It alleged, and
the duly filed answer of the above-captioned Respondent,
hereinafter sometimes referred to as the Company , denied,
the commission of unfair labor practices defined in Section
8(a)(3) and (1) of the Act.
At the hearing, the parties appeared and participated
with full opportunity to present evidence and argument on
the issues . Subsequent to the close of the hearing , written
briefs were received from the General Counsel and the
Company and have been fully considered.
On the entire record herein and on the basis of my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The pleadings and evidence establish and I find that the
Company is a corporation organized and existing under
and by virtue of the laws of the State of Delaware and
engaged in the design and construction of industrial plants.
During the 12 -month period preceding issuance of the
complaint herein, admittedly a representative period, the
Company performed services valued in excess of $50,000 in
States other than the State of Illinois and caused to be
delivered to its Illinois jobsites goods valued in excess of
$50,000 and transported to such jobsites directly from
points outside the State of Illinois. I find, as the Company
concedes , that it is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
It appears from a stipulation of the parties and the
evidence that the labor organization herein involved,
Laborers' Local Union 1203, Laborers' International
Union of North America, hereinafter sometimes referred
i Dates hereinafter, unless otherwise indicated, relate to the calendar
year 1972
MACDONALD ENGINEERING CO. 751
to as the Union , is a labor organization within the purview
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case concerns events occurring in the course of the
Company's work on additions and alterations to the
Marquette Cement Company plant at Oglesby, Illinois, a
job which extends over 10 acres and which, on March 2,
called for the employment of about 100 workmen of the
various crafts. The company supervisors on the job
included Superintendent Edwin C. Brown, admittedly a
supervisor, and General Labor Foreman Ted Myers.
Myers seldom performs manual work , assigns laborers to
different tasks, and has authority to transfer laborers, grant
time off , and effectively recommend adjustments in rates
of pay as well as selections for layoffs. I find that Myers is
a supervisor within the purview of Section 2(11) of the Act.
Kaminski, the Charging Party herein, was a member of
the Union and employed on the Marquette jobsite; his
duties included concrete work, jackhammer operation, and
torch burning . About a week before his discharge, a
question arose concerning the practice which had devel-
oped of laborers assigned to work for Myers being taken
off their assignment by other foremen to perform different
tasks than those assigned them by Myers. The situation
was described by Kaminski as one in which the laborers
did not know who their foreman was at certain times.
Kaminski consulted Union Business Agent Ralph Newell,
concerning this situation . Newell informed Kaminski that
Myers was not allowed to give direct orders to the laborers.
On Friday, February 25, Kaminski met with a group of
fellow laborers and informed them of Newell' s statement.
The group met at lunch and decided to demand that Myers
assign a labor foreman to direct their work; when they
asserted this demand, Myers replied that the local union
business manager, Newell, had approved the existing
practice. Notwithstanding this position of Myers, a new
labor foreman was assigned the group on the following
Monday, February 28.
Sometime shortly prior to March 1, Brown had become
aware of a practice on the part of certain ironworkers of
leaving their work early; on that date he advised employees
in all crafts, through their stewards, that early quitting
would have to stop. It appears that the existing practice on
the job in question was to permit employees to quit work at
a time to permit them to reach the parking lot by, but not
before, 4:15. The end of the workday was 4:30. Kaminski
testified that on March 1, a day of heavy rain at times, the
Laborers steward, Doutch, warned the laborers against
early quitting inasmuch as Brown had been after the
Ironworkers for early quitting. He advised the laborers not
to reach the parking lot until 4:15. At 3:30, according to
Kaminski's account, he and his fellow laborers left their
jobs and went to the power house for shelter at 3:30 to
await the arrival of the tool truck, which apparently,
according to custom and usage, marked the end of their
worktime and the commencement of their homeward
courses. Kaminski followed the tool truck, turned in his
identification brass, rode on the electrical contractors truck
to the parking lot, and got in his own car and was pulling
out of the lot when Brown stopped him and asked if he was
quitting . Kaminski said that he was quitting on account of
the rain . Brown then asked for his hardhat and told him
not to report on the following day. Notwithstanding this
last order , Kaminski did report the following day only to
be paid off and discharged for early quitting.
The testimony of Kaminski that Myers , some 2 weeks
prior to his discharge , told him that quitting time is when
the tool truck arrives is only indirectly denied by Myers
who said that he talked to Kaminski in the period in
question only once and about another subject . I credit
Kaminski 's account and find that on the day of his
discharge he did no more than follow custom and practice.
It is my conclusion that Kaminski was in fact discharged
because he had become somewhat of a militant advocate in
asserting the employees ' rights to be governed by the
provisions of the contract covering their employment
including the usages, customs, and practices which had
grown up in administration of the agreement, and
including the practice of leaving their work when the tool
truck arrived at the scene of their operations . I conclude
that Kaminski was in fact discharged because of his
militance in enforcement of the labor agreement and the
customs and practices grown up under it as well as his
insistence on the assignment of a foreman which insistence
brought the business agent to come to the job and caused
the assignment by the Company of a foreman for the crew
in which Kaminski worked . The discharge of Kaminski
under the circumstances appears to me to have been in
reprisal for his participation in, and leadership of,
concerted activities in furtherance of the employee demand
that a labor foreman be assigned to direct the laborers'
work and as such constituted an unfair labor practice
within the scope of Section 8(a)(3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair practices
occurring in connection with the business operations of the
Company as set forth in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings , set forth above , to the effect that
the Company has engaged in unfair labor practices
affecting commerce , it will be recommended that it be
required to cease and desist therefrom . N.L.R.B. v.
Entwistle Mfg. Co., Inc., 120 F .2d 532 (C.A. 4). I will also
recommend that the Company be required to take such
affirmative action as appears necessary and appropriate to
effectuate the policies of the Act, including the payment of
backpay to Kaminski computed in accordance with the
remedial relief policies enunciated in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716. It was stipulated that Kaminski was
reinstated on April 3. The posting of an appropriate notice
is required.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and upon (d) Notify the Regional Director for Region 38, in
the entire record in this case, I make the following: writing, within 20 days from receipt of this Decision what
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. By discharging its employee William Kaminski in
reprisal for his participation in concerted activities on
behalf of the Union, the Company has engaged in unfair
labor practices within the scope of Section 8(a)(3) and (1)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
hereby issue the following recommended: 2
steps have been taken to comply with the terms hereof.4
2 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 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
3 In the event that the Board ' s Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
4 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 38, in writing , within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other
labor organization of its employees by discharging or
otherwise discriminating against employees because of
their participation in concerted activities in furtherance of
collective bargaining and employee mutual aid and
protection.
(b) In any manner interfering with, restraining, or
coercing employees in the exercise of their rights under the
Act
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Make employee William E. Kaminski whole for loss
of earnings in the manner set forth in the section above
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other record
necessary to analyze and give effect to the backpay
requirements thereof.
(c) Post at its office at the Oglesby jobsite copies of the
notice attached hereto and marked "Appendix." 3 Copies
of said notice, on forms provided by the Board's Regional
Director for Region 28 shall, after being duly signed, be
posted immediately upon receipt thereof and maintained
by the Company thereafter for a period of 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to ensure that said
notices are not altered, defaced, or covered by any other
material.
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 discourage membership in or activity
on behalf of Laborers Local Union 1203 or
any other labor organization of our employees by
discharging or otherwise discriminating against them in
violation of the National Labor Relations Act, as
amended.
WE HAVE reinstated William E. Kaminski and paid
him backpay to make him whole for loss of wages
during the period he was unlawfully discriminated
against.
WE WILL NOT in any manner restrain or coerce
employees in the exercise of their rights under the
National Labor Relations Act, as amended.
MACDONALD ENGINEERING
Co.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Savings Center Tower, 10th
Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone 309-673-9061.