Odell Mitchell

National Labor Relations Board - Board Decisions

Feb 25, 1976

222 N.L.R.B. 1078 (N.L.R.B. 1976)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Odell Mitchell and John R . Bachor, Jr. Case
31-CA-5232
February 25, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
On October 1, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Odell Mitchell, Fontana,
California, his agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at San Bernardino, California, on I August
14 based on a charge filed April 23, and complaint issued
June 4 alleging that Odell Mitchell, called Respondent,
variously violated Section 8(a)(1) of the Act and further
violated Section 8(a)(3) by discharging John R. Bachor, Jr.,
and John May because they attempted to implement or
enforce provisions of a collective-bargaining agreement.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of briefs
filed by General Counsel and Respondent (Memorandum),
I make the following:
I All dates and named months hereafter are in 1975
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a sole proprietorship located in Fontana,
California, engages in providing labor for finish carpentry.
He annually performs services valued in excess of $50,000
for Eco Science, a general contractor engaged in interstate
commerce_ which itself annually performs services valued
in excess of $50,000 for the Department of -Navy.
Respondent's operations exert a substantial impact on the
national defense and I find, as admitted, that he is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Carpenters Local Union 1205,
United Brotherhood of Carpenters and Joiners of America,
called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
Respondent performed finish carpentry on housing con-
struction for a Marine Corps facility situated at Twenty-
nine Palms, California. This was within the Union's geo-
graphical jurisdiction and carpentry employees were cus-
tomarily cleared onto the project under a referral system.
Respondent was signatory to a "short form" adopting pro-
visions of a master agreement to which the Union was par-
ty. These provisions included subsistence of $14 per day or
daily room and board.
Bachor and May were hired as journeymen carpenters
by Respondent in January and February, respectively.
Each was a member of another carpenters local at the time
and resided beyond an ordinary commuting distance. Each
promptly advised Respondent of their desire to receive the
subsistence benefit. In lieu of this Respondent arranged to
contribute $50 monthly towards rent of a trailer park space
for Bachor and $65 monthly as May's portion of a shared
rental trailer.
These employees soon discussed their lack of full subsis-
tence and Bachor telephoned Union Representative
George Stevens on the matter. Stevens came to the project
on March 14 and, in Respondent's presence, diplomatical-
ly questioned Bachor and May whether they were satisfied
on the subject. Each negatived. Later that day Respondent
spoke to both Bachor and May, stating that if forced to
pay subsistence "he [would forget how to write a man's
name on a] check." On March 17 Respondent told Bachor
he would "just have to let you go" if required to pay subsis-
tence?
During subsequent weeks Bachor and May remained
dissatisfied and Bachor complained of the failure to pay
contractual subsistence to a representative of the general
contractor. He also pressed the matter through carpenters
union channels. On April 18 Stevens came to the project
with Carpenters District Council Representative Dale
2 On this date a new "rent money" arrangement was made with Bachor to
provide him an income tax deduction
222 NLRB No. 171
ODELL MITCHELL 1079
Hansen. Bachor testified that just prior to their appearance
Respondent laid him off for claimed "lack of material." 3
Respondent testified that his wife-had prepared Bachor's
final checks the previous Wednesday, based on his own
determination during "the first part of the week" that lack
of material dictated Bachor's layoff.-During the evening of
April 19 Respondent telephoned May asking "what I had
put in my statement to the Union," adding that May could
also collect accumulated subsistence as Bachor was about
to do but in such event Respondent would "have to get
someone' to replace you that doesn't need subsistence."
May replied he would pick up "my money" on April 21,
following collection of belongings for a "move back home"
(May resided in Sunnymead, California). May actually ob-
tained such payment (to "his figures") on April 22.
This case is governed by Bunney Bros. doctrine .4 In that
context both Bachor and May engaged in a classic effort to
obtain collectively bargained benefits and experienced di-
rect discrimination as a result. The subsistence was proper-
ly fulfilled only by payment of a fixed daily amount or by
providing meals and lodging throughout the week.
Respondent's tinkering with the subject placated but did
not comply; nor did partial acceptance here constitute a
waiver of benefits. Conversely, Bachor-'s referral expressly
noted the subsistence figure and agitation for fulfillment
never abated. Respondent dismayedly sensed it was Ba-
chor who had "called the Union." The defense Respondent
advances is without substance. Respecting Bachor it is ap-
parent that task flexibility would have permitted continued
employment beyond April 18. The fact that employee Ha-
rold Crosher completed available door hanging during the
following week is immaterial to whether, absent discrimi-
nation, Bachor would have been utilized for further "hard-
ware" or other carpentry.5 As to claimed slowness Bachor
adequately explained his reduced door hanging production
was based on increased duties over the last month of em-
ployment. May would not have experienced termination
but for the telephone ultimatum respecting the subsistence
benefit 6 Circumstances made this a constructive discharge.
I do not credit salient aspects of Respondent's testimony.
He was persuasively impeached by a prior inconsistent
written statement, was convincingly contradicted by May
on the controlling question of whether the latter quit and
cannot be believed respecting material shortage being so
acute that only shortly beyond midpoint in length of the
project he justifiably laid off Bachor.
Thus, I assuredly conclude Respondent discharged both
3 Faced with this development the union functionaries took a statement
of facts from Bachor and May, but did not deal directly with the subsistence
issue. Bachor had refused to sign a "labor release" for Respondent, but after
subsequent contact between them did so on April 20 at Respondent's home
in exchange for payment of $634 in accumulated subsistence.
4 Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunney Bros Con-
struction Company, 139 NLRB 1516 (1962)
5 May's testimony convincingly establishes this point and that brief mate-
rial shortages were common. Respondent tacitly admits as much, and there
is no reason to find Bachor less "reversible" than Crosher or the replace-
ment soon secured.
6 Contrary implication in testimony of Crosher and employee Alan May-
nor is disregarded because it is intrinsically without sufficient weight and
these witnesses each displayed bias favoring Respondent Vida Mitchell's
testimony on the point is not probative.
persons because they engaged in protected activity. See
Bunney Bros., supra; Herdis E. Gammon, a Sole Proprietor
d/b/a Gammon Trucking Company, 203 NLRB 1136
(1973); Southwestern Bell Telephone Company, 212 NLRB
43 (1974). Additionally, he committed independent 8(a)(1)
violations as alleged. The earthy figurativeness of stating
he could "forget" how to write a man's name on a check is
unmistakably a thinly veiled threat to terminate from em-
ployment. Both Bachor and May -were subjected to utter-
ances directly associating continued desire for subsistence
with termination. Finally, the telephone call of April 19 to
May, both in context and content,- was unlawfully coercive
interrogation as it objectively tended to inhibit conduct
which legitimately sought to attain contract benefits.
CONCLUSIONS OF LAW
Respondent, by threatening employees with economic
reprisals because they attempted to implement or enforce
provisions of a collective-bargaining agreement, by threat-
ening to discharge employees if they were successful in im-
plementing or enforcing provisions of a collective-bargain-
ing agreement, by interrogating May concerning his advice
to the Union in support of attempted implementation or
enforcement of collective-bargaining agreement provisions,
and by discharging Bachor and May, has engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.7
I shall recommend that Respondent cease and desist
from unfair labor practices, that he -compensate Bachor
and May with backpay as provided in F. W. Woolworth
Company, 90 NLRB 289 (1950) and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962) and mail an appropriate
notice to those employed on April 18 (the job having been
completed July 3). Arguably valid offers of reinstatement
were made by Respondent on May 27 (Resp. Exh. 1). Gen-
eral Counsel does not concede their unconditional nature,
pointing to the expression "same [rate of ] pay" as evidence
that even then subsistence was not intended. This conten-
tion misconceives the requirements of an unconditional of-
fer. Restoration of status quo was Respondent's obligation
and that is what the offers presumed to do. The issue of
subsistence, as a collateral benefit to which protected activ-
ity related, does not deal with the fact that both Bachor
and May had accepted work without this added reimburse-
ment and continued in such employ under a condition of
guarded protest. As a contract right subsistence was sub-
jected to contract defenses (accord and satisfaction, etc.).
In an appropriate forum one interest or the other would
have presumably prevailed on the point. Legal standing as
third party beneficiary is not the same as an actual feature
of employment, for purposes of evaluating unconditionali-
ty of a reinstatement offer. I therefore recommend backpay
not be computed beyond May 27.
7 It is unnecessary to determine the alleged violation of Sec 8(a)(3) as the
remedy provided herein would be the same. Leviton Manufacturing Compa-
ny, Inc, 203 NLRB 309, 311 (1973).
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disposition
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Odell Mitchell, Twenty-nine Palms, Cali-
fornia, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee for attempting to imple-
ment or enforce provisions of a collective-bargaining
agreement or otherwise engage in protected concerted ac-
tivity under Section 7 of the Act.
(b) Threatening any employee with economic reprisals
or discharge for seeking to successfully attempt implemen-
tation or enforcement of provisions contained in a collec-
tive-bargaining agreement.
(c) Interrogating any'employee concerning advice pro-
vided to Carpenters Local Union 1205, United Brother-
hood of Carpenters and Joiners of America, or any other
labor organization, in support of attempted implementa-
tion or enforcement of provisions contained in a collective-
bargaining agreement.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make John R. Bachor, Jr., and John May whole for
any loss of earnings suffered by reason of being discharged
on April 18 and 19, respectively.
(b) Mail John R. Bachor, Jr., John May, and each other
person employed by Respondent at the Twenty-nine
$ 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.
Palms, California, project on April 18, 1975, signed copies
of the attached notice marked "Appendix," 9 immediately
upon being provided such forms by the Regional Director
for Region 31.
(c) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
9In 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."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT discharge or otherwise discriminate
against any employee for seeking benefits provided in
a collective-bargaining agreement of Carpenters Local
Union 1205, United Brotherhood of Carpenters and
Joiners of America or any other labor organization.
I WILL NOT threaten employees with economic repri-
sals or with discharge for attempting to implement or
enforce provisions of a collective-bargaining agree-
ment; nor will I interrogate employees concerning in-
formation they give a union in support of that objec-
tive.
I WILL NOT in any like or related manner interfere
with, restrain, or coerce my employees in the exercise
of rights protected under the National Labor Rela-
tions Act.
I WILL pay John R. Bachor, Jr. and John May for
loss of earnings suffered by them as a result of being
discharged in April 1975.
ODELL MITCHELL