Peru Associates, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1968

170 N.L.R.B. 643 (N.L.R.B. 1968)

PERU ASSOCIATES, INC.
Peru Associates , Inc. and Oswald J. Carter. Case
3-CA-3262
March 22, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 27, 1967, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Decision and a supporting memorandum.
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
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
memorandum, and the entire record in the 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 Recom-
mended Order of the Trial Examiner, as modified
herein, and hereby orders that the Respondent,
Peru Associates, Inc., Plattsburgh, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
In paragraph 2(d) substitute for the words "to be
furnished" the words "on forms provided."
' That the protesting of the allocation of work between the members of
two unions , to the representative of one of the unions involved , is "concer-
ted" activity, is further supported by the case of Amco Electric, 152 NLRB
781,785
TRIAL EXAMINER'S DECISION
OWSLEY VOSE, Trial Examiner : This case, heard
at Plattsburgh , New York, on October 13, 1967,
pursuant to a charge filed July 6, 1967, and a com-
643
plaint issued on August 8, 1967, presents the
question whether the Respondent discharged
Oswald J. Carter because he engaged in union and
concerted activities 'and thereby violated Section
8(a)(3) and (1) of the National Labor Relations
Act, as amended.
Upon the entire record and my observation of
the witnesses and after due consideration of the
letter submitted by the Respondent after the hear-
ing, I make the following:
FINDING AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged as a general contrac-
tor in the building and construction industry and
maintains its principal office at Plattsburgh, New
York. During the year preceding the issuance of the
complaint the Respondent had delivered to its
jobsites from out-of-State sources over $50,000
worth of materials . Upon these facts, I find, as the
Respondent admits, that it is engaged in commerce
within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 186 , Laborers' International Union of
North America , AFL-CIO ( herein called the
Laborers ), and Local 648 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America ( herein called the Team-
sters ), are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent's Discharge of Oswald Carter in
Violation of Section 8(a)(1) of the Act
1. The facts
The Respondent is engaged in construction work
at the Altona Dam near Plattsburgh, New York.
The Respondent employs union labor exclusively
on this project and has agreements with major labor
unions covering the work, including agreements
with the Laborers and the Teamsters.'
On May 29, 1967, Kenneth Dumas, the business
agent for the Laborers, visited the project and
talked with John Rabideau, the employee who
served as the Laborers' steward on the project.
Rabideau complained that members of the Team-
sters were "doing quite a bit of the Laborers' work,
that the Company was using them wherever they
wanted them." Thereafter, Dumas took the matter
up with Benjamin Grandy, the Respondent's su-
perintendent on the project. Grandy said that "he
couldn't see anything wrong with ... the Teamsters
doing a little bit of the Laborers work."
' See the Respondent 's letter to the Trial Examiner dated November 4,
1967
170 NLRB No. 86
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oswald Carter, the Charging Party in this case, is
a member of both the Laborers and the Teamsters.
Carter was referred for employment at the Altona
project by Laborers' Business Agent Dumas. He
was hired on June 5, 1967, as a laborer and as-
signed to operate the pneumatic hammer.
A few days after Carter was hired, he spoke to
one Brunell, the Teamsters' steward on the project,
about whether the Respondent was going to hire
any more Teamsters on the job. Brunell said he
would talk to Superintendent Grandy and let Carter
know. About June 12 Brunell informed Carter that
Grandy had said that the Respondent was not going
to put any more Teamsters on the job.'
On June 15 Carter spoke to John Rabideau, the
Laborers' steward on the project, about the fact
that he was not receiving overtime like the rest of
the men were. Later that same day Carter asked
Ferd Pellerin, the Respondent's labor foreman on
the project, why he was not getting any overtime.
Pellerin, according to Carter's credited and unde-
nied testimony, merely "mumbled" and said "they
had none for [him]."
On June 20 Business Agent Dumas visited the
project. Rabideau, the steward for the Laborers, re-
ported to him that he did not think that overtime
was being divided up equally among the employees.
Dumas and Rabideau then went to Foreman Pel-
lerin and asked him about the sharing of overtime.
Pellerin replied, according to Dumas' credited and
undenied testimony, "If Carter doesn't like the way
it is, then he's through."
About this same time Business Agent Dumas met
with Victor Mousseau, the business agent of the
Teamsters, and told him that there were some
minor problems at the project-cases of Teamsters
doing Laborers' work and cases of Laborers doing
Teamsters' work. On June 23 Mousseau visited the
project and talked with Superintendent Grandy.
July 3 was a workday but the men quit at 10 a.m.
because it was raining. About 5 p.m. that day
Foreman Pellerin went to Carter's home and told
him that he had some bad news for him, and
handed him his paycheck. When Carter asked him
what the trouble was, Pellerin replied, "just getting
rid of you." When Carter asked "what's the
reason," Pellerin mumbled something in response
which Carter did not understand, and drove off.
On July 5 Carter went to the Laborers hall in
Plattsburgh and informed Business Agent Dumas of
his discharge. The two men then went to the
Respondent's trailer office on the jobsite. After Su-
perintendent Grandy summoned Laborers' Steward
Rabideau to the office, the following ensued, ac-
cording to Carter's credited and undenied
testimony:
Dumas asked Grandy why he let me go ....
And Grandy said, "I just let him go. He was
causing trouble." Ken says, "What kind of
trouble?" So he says, "trouble between us and
the Teamsters." So Ken says, "Well, that's no
reason to let a man go." He said, "I want you
to put this man back to work." He said, "No."
Well, Ken says, "Is there anything wrong with
the man's work?" He says, ".No. His work is
satisfactory." And Ken asked him again to put
me back to work. He said, "No."
Dumas said , "If you 're letting him go because
of Vic coming up here on the job and holler-
ing, I was the man that sent him up here. It
wasn 't Carter ." And Grandy said , "That still
makes no difference. When I let a man go, I
don't put him back to work."3
2. Conclusions
Carter's interest in doing the truckdriving work
performed by members of the Teamsters, rather
than in the Laborers' work which he was then do-
ing, was brought home to the Respondent early in
Carter's employment, when he had the Teamsters
steward speak to Superintendent Grandy about
whether the Respondent was going to hire any
more Teamsters.
The undenied testimony concerning Superinten-
dent Grandy's explanation for Carter's discharge
given to Business Agent Dumas,_ Labor Steward
Rabideau and Carter on July '5 establishes that the
Respondent believed that Carter had been protest-
ing through the Teamsters the Respondent's divi-
sion of work between members of the Laborers and
members of the Teamsters. In addition, the uncon-
tradicted evidence shows that. Labor Foreman Pel-
lerin,_ who was Carter's immediate superior and
who notified him of his discharge, resented-the fact
that Carter had complained to him about the
Respondent's distribution of overtime work and
that he had been questioned by Business Agent
s On June 13 or 14 Carter spoke to Joe Woods, a fellow member of the
Laborers, about the Respondent's use -of members of the Laborers for
truckdriving duties . Woods, who had driven a cement-mixer truck to the
project, agreed that the Respondent should use members of the Teamsters
for such duties.
Rabideau's version is very similar, as follows.
Ken [Dumas ] asked Mr. Grandy why that man was fired He said, "He
was causing trouble between the Teamsters and the Laborers." He
said, "We had Vic Mousseau up here, and he ,lumped all over me
about the Laborers doing Teamsters work " Carter spoke up and said
that he hadn't spoke to Mousseau on the subject and he was going to
go to the Labor Board and find out about it . Ken says to him, asked
Mr. Grandy, "What about Carter's work" He was well satisfied with
his work
PERU ASSOCIATES, INC. 645
Dumas and Laborers' Steward Rabideau about this
matter. This, I find, was a contributing factor in the
Respondent's decision to discharge Carter.'
Both the allocation of work between the mem-
bers of two unions and the distribution of overtime
relate to "wages, hours, and other terms and condi-
tions of employment," matters concerning which
bargaining is made . mandatory under Section
8(a)(5) of the Act. The Supreme Court in National
Woodwork Manufacturers° Association v. N.L.R.B.,
386 U.S. 612, 642, expressly recognized "the
legitimacy of work preservation clauses" in collec-
tive-bargaining contracts. Both" of these matters,
therefore, were legitimate subjects of "concerted
activities for the purpose of collective bargaining or
other mutual aid or protection," and Carter's
discharge for engaging in such activities interfered
with, restrained, and coerced Carter and the
Respondent's employees as a whole in the exercise
of their rights under Section 7 of the Act. Ac-
cordingly, Carter's discharge was violative of Sec-
tion 8(a)(1) of the Act. Cf. Interboro Contractors,
Inc., 157 NLRB 1295, 1301-02.5
While the complaint alleges that Carter's
discharge violated Section 8(a)(3) of the Act as
well as 8(a)(1), since the remedy would be the
same regardless of which section is found to have
been violated, I find it unnecessary to determine
whether Carter's discharge also violated Section
8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By discharging Oswald Carter for having en-
gaged in concerted activities for the purpose of col-
lective bargaining or -other mutual aid or protec-
tion, the Respondent has interfered with,
restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7)oftheAct.
THE REMEDY
Having found that the Respondent discharged
Oswald Carter in violation of Section 8(a)(1) of the
Act, my recommended order will provide that
Respondent cease and desist from such violations
of the Act and that it offer Carter immediate and
full reinstatement to his former or a substantially
equivalent job at the Altona project, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may
have suffered as a result of his discharge by pay-
ment of a sum of money equal to that which he
would have earned as wages from the date of his
discharge to the date of the Respondent's offer of
reinstatement, less his net earnings during such
period, computed quarterly with interest, in ac-
cordance with the formulas prescribed in F. W.
Woolworth Company, 90 NLRB 284, , and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and
the entire record, and pursuant to Section 10(c) of
the Act, there is hereby issued the following:
RECOMMENDED ORDER
The Respondent, Peru Associates, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise dis-
criminating in regard to their hire, tenure of em-
ployment, or any term or condition of employment,
because they have engaged in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to engage in, or to refrain from
engaging in, any or all of the activities specified in
Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Oswald Carter immediate and full
reinstatement to his former or a substantially
equivalent position, at the Altona project, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
he may have suffered by reason of his discharge, in
the manner set forth in the section entitled "The
Remedy."
(b) Notify Oswald Carter if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records and reports and all
According to Dumas' testimony , at the meeting on July 5 at which he
questioned Grandy about the reasons for Carter's discharge, Grandy
characterized Carter as an "agitator " In my opinion it was Carter's
questioning, through Business Agent Dumas and Steward Rabideau, of the
Respondent's distribution of overtime work which was in part responsible
for Grandy's characterization of Carter as an "agitator "
s While Carter had not actually been responsible for Teamsters' Business
Agent Mousseau's action in protesting to Superintendent Grandy about
members of the Laborers doing Teamsters work, which Grandy regarded as
"causing trouble between the Teamsters and the Laborers," Grandy be-
lieved that Carter was responsible and made this clear to Carter and all
concerned at the July 5 meeting A discharge in the belief that an employee
has engaged in concerted activities to which the employer objects is no less
coercive because the employer is mistaken in his belief.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other records necessary or useful to determine the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its office at the Altona project the at-
tached notice marked "Appendix." Copies of said
notice on forms to be furnished by the Regional
Director for Region 3, after being duly signed by an
authorized representative of the Respondent, shall
be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or
covered by any other material.'
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of receipt of
this Decision, what steps the Respondent has taken
to comply herewith.'
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
-event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 3, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discharge any of our em-
ployees or otherwise discriminate in regard to
their hire, -tenure of employment, or any term
or condition of employment, because they
have engaged in concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to engage in, or to
refrain from engaging in, any or all of the ac-
tivities specified in Section 7 of the Act, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
amended.
WE WILL offer Oswald Carter immediate and
full reinstatement to his former or a substan-
tially equivalent position at the Altona project,
without prejudice to his seniority or other
rights and privileges.
WE WILL pay Oswald Carter backpay to
reimburse him for the wages he lost as a result
of his discharge.
WE WILL notify Oswald Carter if presently
serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective
Service Act and the Universal Military Train-
ing and Service Act, as amended, after
discharge from the Armed Forces.
PERU ASSOCIATES, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting- and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's, Regional
Office, 4th Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
842-3100.