NLRB v. Interboro Contractors, Inc.

• Citation: 388 F.2d 495
• Decision Date: 22 December 1967
• Docket Number: No. 92-93,Dockets 31213-31214.,92-93
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERBORO CONTRACTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

388 F.2d 495 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERBORO CONTRACTORS, INC., Respondent.

Nos. 92-93, Dockets 31213-31214.

United States Court of Appeals Second Circuit.

Argued October 11, 1967.

Decided December 22, 1967.

Peter M. Giesey, National Labor Relations Board, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Associate General Counsel, and Lawrence M. Joseph, National Labor Relations Board, Washingtion, D. C., on the brief), for petitioner.

Joseph Goldberg, New York City, for respondent.

Before LUMBARD, Chief Judge, SMITH and FEINBERG, Circuit Judges.

LUMBARD, Chief Judge:

This case comes before us by petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, for enforcement of an order issued against respondent on March 31, 1966. 157 NLRB No. 110. The Board determined that respondent had violated Section 8(a) (1) of the Act by discharging two employees, John and William Landers, for engaging in activities which were protected under the Act; respondent was ordered to cease and desist from the unfair labor practice found and to grant the Landers reinstatement and back pay. The question presented to this court is whether there was substantial evidence to support the Board's findings that the Landers' presentation of complaints about respondent's alleged violations of the collective bargaining contract was concerted activity protected under Section 7 and that these complaints were the reason for the discharges. We conclude that the Board's findings are supported by substantial evidence on the record considered as a whole and enforce the Board's order.

The testimony at the hearing before the trial examiner revealed the following facts. On March 23, 1965, brothers John and William Landers were hired over the telephone by respondent's president Kleinhans to work as steamfitters on a construction project at Tratman Avenue in the Bronx. According to John, Kleinhans said that it would be an "8-hour job" and would pay "expense money";¹ Kleinhans testified that he did not give any such promises.

When they arrived at the jobsite on March 25, the Landers brothers met Novak, who was also employed by respondent as a steamfitter. John found that Novak had been working alone for several days while his partner Koster — who was respondent's only other employee on this job — had been absent because of sickness; the collective bargaining contract and the New York City Fire Regulations require that steamfitters work in pairs.

A short while later Soebke, respondent's supervisor, visited the jobsite. John asked him about the "8-hour job" and "expense money." Soebke answered that the Landers would have to speak to Kleinhans about this.

Soebke assigned John to do some welding and William to do some other work. The Landers refused to work separately, claiming that the contract required them to work together. John pointed out to Soebke that Novak had been working without a partner and expressed doubt that Novak was an "A-man" qualified to work as a steamfitter.² John also said that he was going to get the union business agent to visit the jobsite. Soebke then assigned both Landers to work together and left the site. John afterwards called the union business agent.

On the following day, Koster, who was the foreman, returned and John repeated the complaints to him. John also told Koster of his conversation with Kleinhans concerning the overtime and expense money; Koster confirmed Soebke's statement that Kleinhans rarely appeared at the jobsite. John made one phone call to Kleinhans' office in order to discuss the 8-hour day and expense money, but he was unable to reach Kleinhans.

The same day, the union business agent arrived at the site and heard John's complaints. The agent told Koster that the men were to work in pairs and that another steamfitter would be sent to replace Novak, who was not an "A-man"; he also ordered Koster before the executive board of the union for a briefing on a foreman's duties. John also had claimed that a prefabricated boiler which was being delivered to the jobsite violated the contract.³ Koster confirmed that a prefabricated boiler was being delivered; the agent said that he would look into the matter when the boiler arrived.

On the same day, March 26, John requested Koster to supply him with protective leather equipment and Koster agreed to do so.⁴ John testified that, despite his repeated requests and Koster's repeated promises, he never received the equipment. Kleinhans testified that the requested equipment was provided, but John claimed that only one set was ever provided and that was used by Collins, the steamfitter who replaced Novak.

On March 29, the union business agent called Kleinhans and told him of the investigation and the action taken. Kleinhans asked who had made the complaints; the agent answered that it was irrelevant. Kleinhans then said that it looked like he had a couple of "troublemakers" on the job.

On March 30, Kleinhans came to the jobsite and John, with William in attendance, asked about the 8-hour job and expense money. Kleinhans said he could see no reason for it, but might consider the request later.

On Friday, April 2, Soebke paid the employees for the work through the previous Tuesday. The Landers and Collins complained that the contract required that they be paid through Wednesday.⁵ After a discussion and a threat by John that the three of them would notify the union and would wait at the site until they received the money, Soebke agreed to bring the extra day's pay on Monday.

The prefabricated boiler arrived on April 7 and John called the union, after he found that Koster did not intend to do so, in order to have the boiler inspected. Eventually, a union business agent did discuss the matter with Kleinhans, but he found that no violation was involved.⁶

Between April 7 and April 15, the Landers, Collins and Koster moved the boiler and a refrigerator unit into place. John complained to Koster that the rollers and blocks available were not the standard equipment which should be provided for such an operation; William and Collins made similar complaints.

On Thursday, April 15, Soebke paid the Landers in full and told them they were discharged. When asked for the reason, Soebke said he had no reason but was merely carrying out orders.

On April 20, John and William filed unfair labor practice charges against respondent.

For three months, respondent avoided stating any concrete reasons for the discharges. Kleinhans, when questioned by a union agent shortly after the discharges, said he had fired the Landers for "different reasons," but declined to specify the reasons. He refused to reinstate the Landers, saying that "these guys even went to the National Labor Relations Board." Kleinhans also refused to give any reason for the discharges when subsequently questioned by a Board agent. In its answer and amended answer filed in the Board proceedings, respondent defended the discharges simply on the ground that under the contract it had the right to discharge "any person whom the employer, in its sole discretion, may deem fit."

At the hearing, Kleinhans and Soebke testified that the Landers had been taking long lunch hours and had been leaving early, and that this was the reason for the discharges.

The trial examiner accepted this testimony and found that the Landers were discharged "because of their failure to give a day's work for a day's pay." He also found that, even if the Landers were discharged for making complaints, the discharges were not discriminatory because the complaints were not for legitimate union or concerted purposes; John was the sole protagonist and the complaints were for his "own selfish benefit and aggrandizement" in that they were aimed at forcing the employer either to grant overtime and expenses or to incur the back pay award which would result from a discriminatory discharge.

The Board, with one of the three panel members dissenting, rejected the findings of the trial examiner on both points, concluding that the complaints were protected activity and that they constituted the reason for the discharges. Therefore, the Board found that respondent had engaged in an unfair labor practice in violation of Section 8(a) (1), and issued an order requiring respondent to cease and desist therefrom and to make the Landers whole for any loss of pay they may have suffered as a result of their discharges. Further, if the Tratman Avenue job has not yet been completed, respondent is required to offer the Landers reinstatement and to post appropriate notices at the jobsite. If that job has been completed, respondent is required to notify the Landers that notwithstanding their discharges they will be considered for employment on a nondiscriminatory basis at any of respondent's projects at which they may choose to apply. The order also directs respondent to include in the letters to the Landers copies of the notice which would have been posted at the Tratman Avenue jobsite had it not been concluded and to mail copies of the notice to all its employees who were employed at the Tratman Avenue project on April 15, 1965.

This court must accept the Board's findings of fact if they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). The trial examiner's findings are part of the record, and the fact that those findings were rejected by the Board must be considered in determining whether the "substantial evidence" test is met. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). While this requires that some weight be given to the examiner's findings, it does not mean that "an examiner's findings on veracity must not be...