Bechtel Corp.

BECHTEL CORPORATION 891 the notice to take effect on March 3, 1960. At the time of the hearing the Employer was operating-with a total work force of 25 or 26 pro- duction- and maintenance employees, including those who had been given notice of layoff. The Employer expects to recall all furloughed employees after 3 or 4 weeks of layoff. The parties stipulated that these employees shall be eligible to vote in any election directed. As all employees who may be affected by the prospective layoff have a reasonable expectation of reemployment in the foreseeable future in the event of such layoff, we find that they are eligible to vote.10 [Text of Direction of Election omitted from publication.] 10 American Oil Company, 118 NLRB 229, 230-231. Bechtel Corporation and Albert B. Noseworthy, Robert L. Gibbons, Albert G. Mulley, William T. Green. Cases Nos. 1-CA-2898, 1-CA-2899, 1-CA-2900, and 1-CA-2901.. May 25, 1960 DECISION AND ORDER On February 26, 1960, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the said complaint be dis- missed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by the individuals named in the caption , the General Counsel of the National Labor Relations Board issued a consolidated complaint, dated August 28, 1959, against Bechtel Corporation, herein called Respondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and .( 3) and Section 2(6) and (8) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Respondent 127 NLRB No. 110. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed an answer denying the alleged violations. A hearing thereon was held on December 3 and 4, 1959, at Boston, Massachusetts, before the duly designated Trial Examiner. Briefs were thereafter submitted. Upon the entire record 1 and my observation of all witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Deleware corporation in the construction and contracting business with its principal office in San Francisco, California, and an office and place of business in Charlestown, Massachusetts. Respondent's interstate and foreign pur- chases and sales respectively exceed an annual value of $50,000. I find the Re- spondent is engaged in commerce within Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 7, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. - III. THE UNFAIR LABOR PRACTICES A. Preliminary statement Respondent laid off four yard employees and their foreman on June 26, 1959.2 The General Counsel contends that Respondent in effect discharged the four employees 3 for participating in a work stoppage and inducing other employees to strike; Respondent claims, on the other hand, that the terminations were caused by an economic reduction in force. Respondent further asserts that, even on the assumption of the General Counsel's claimed reason, the terminations were lawful because the mentioned strike action was in breach of an outstanding no-strike con- tract. The General Counsel thereupon claims, and Respondent denies, that Re- spondent condoned this alleged breach of contract. The parties make still further contentions and rejoinders, hereinafter stated. B. Sequence of events At all times material here Respondent has been party to a collective- bargaining agreement with International Association of Bridge, Structural and Ornamental Iron Workers, herein called Ironworkers. This contract contains, among other provisions, a union-shop provision and a clause prohibiting strikes and lockouts. The four employees involved in the present action were aware of this no-strike prohibition, particularly because of another walkout by ironworkers on this same project about 2 months before the events under consideration here Ironworkers began working on the project in February, and Respondent had approximately 70 such employees on the project during the week of June 26. They are organized into gangs with a foreman or pusher in charge. Two general foremen are in charge of all ironworkers and their pushers, William Townsend in charge of structural men and one Ryan over the rodmen. Townsend and Ryan are under Assistant Superintendent Bert McCaffrey, and Project Superintendent Lenord Cole is McCaffrey's superior. Project Manager Hanna is Respondent's final authority at the project. The four alleged discriminatees (Albert Noseworthy, Robert L. Gibbons, Albert Mulley, and William T. Green) and their foreman, Dick Gibbons, constituted a so-called yardgang, under General Foreman Townsend. This gang's principal task was to unload materials 4 and equipment at a freightyard about three-fourths of a i A question arose at the hearing concerning Respondent's Exhibit No 2 (a) and it was agreed that Respondent would furnish true copies of the document in question after the hearing and that Respondent and the General Counsel would execute a stipulation to such effect Respondent has submitted two copies of such purported document with copies sent to the General Counsel. As I have not received further word from the General Counsel, I accept the documents submitted in lieu of the blue-covered document and I shall place these documents in the exhibit file to supersede the blue-covered (now former) Respond- ent's Exhibit No 2(a) The covering letter, which I hereby designate as Respondent's Exhibit No. 2(b), will be attached to No 2(a) 2 Unless otherwise stated, all dates referred to herein occurred in 1959 3 The complaint does not allege discrimination as to the foreman because of his super- visory status. 4 I do not imply that their job was to unload all materials. BECHTEL CORPORATION S93 mile from the project site, and when caught up in such duties they worked at the jobsite. On or about June 23, for the first time on the project, several boxcars of switchgear came into the freightyard. The yardgang contacted Ironworkers Shop Steward Lawrence Scibelli and Scibelli in turn called Ironworkers Business Agent Henry Hughes.5 Hughes determined for himself that unloading the switchgear fell within Ironworker work jurisdiction and he advised the yardgang and Superintendent Cole to such effect. Cole said the matter was out of his hands because the switch- gear had been delivered by the manufacturer before the scheduled delivery date and that the switchgear would have to be warehoused until needed for the project. The switchgear remained in the boxcars until Thursday (June 25), when trucking employees of one Keith Fulton began to unload the equipment. Keith Fulton is a trucking subcontractor of Respondent. The yardgang stopped what work they were doing at the time, and they told Fulton's employees to stop handling the switchgear. Cole and Scibelli soon appeared on the scene and Scibelli told Cole that the iron- workers, not Fulton's men, should unload the switchgear. Cole nevertheless advised Fulton that Fulton's men should continue unloading the switchgear, which they did. Without resuming their own work, the yardgang left the freightyard and went to the jobsite and, as Respondent and the General Counsel agree, they thereupon "instigated" or induced all other ironworkers to walk off the project at 3:30 p.m., which was 1 hour before normal quitting time. The next day, June 26, all ironworkers, including the yardgang, reported at the project at 8 a.m., the normal starting time. None of these approximately 70 employees began to work; rather they conferred with Hughes and Scibelli concerning the switchgear assignment . Hughes and Scibelli then approached Cole to discuss the matter, but Cole said he would not take up the question until the ironworkers returned to work. Hughes reported back to the men and told them to begin work, which they did at 9:30 a.m. Foreman Townsend thereupon sent the yardgang6 to the freightyard, where they performed their normally assigned duties that morning (but not on the switchgear, for that equipment had since been moved). Shortly afterward that same morning, Townsend and McCaffrey told the yardgang they were needed at the jobsite, and the crew continued working at the jobsite until notified of their layoff or termination at about 3.30 that afternoon. Hughes and Cole meanwhile discussed the matter of the disputed switchgear again that same day and Hughes in part based his claim to the work on an Ironworkers- IBEW agreement, a copy of which he showed to Cole. Cole checked with an IBEW representative and Cole thereupon told Hughes that if he, Cole, had erred in making the work assignment, Respondent would correct such mistake. Cole did not admit at the time, however, that he had erred in the premises. Foreman Dick Gibbons testified that early that afternoon General Foreman Townsend inquired whether Gibbons had any "agitators" in his gang and Townsend explained to Gibbons, according to Gibbons' further testimony, that he, Townsend, had been "ordered to pick up the agitators and fire them." Gibbons purportedly replied that he had no "agitators," whereupon Townsend purportedly remarked that he had received the same reply from other gang foremen whom he had similarly queried. Townsend denies that this conversation occurred. About 3.30 that same afternoon General Foreman Townsend showed Foreman Gibbons a paper containing the names of Gibbons and the four members of his gang; Gibbons testified that Townsend also said at the time that Assistant Superintendent McCaffrey had told Townsend in giving him the list "that these are the agitators, pay them off and get rid of them." Townsend denied any reference to "agitators" on this occasion; McCaffrey did not testify. Foreman Gibbons and gang member Mulley testified that Gibbons thereupon told the gang that Gibbons and the gang were being let go for "agitating." The gang then called Scibelli and asked whether he had any explanation for their layoff. Scibelli had none. Scibelli and the gang thereupon called upon Cole, and Cole told them that the only reason for the layoff was an economic cutback. And Cole denied at the time, when one of the gang members asked him, that Respondent was laying them off for being "troublemakers " Respondent thereafter mailed identical termination notices to Gibbons and the four other gang members, stating that they were laid off for "reduction in force" and that they were "eligible for rehire." The next workday was Monday, June 29. The yardgang appeared at the gate that morning but was denied entry. A foreman sent word out to gang member Mulley at the time, asking him to return ; Mulley refused to do so without the rest c Sclbelli and Hughes held these respective offices in Local 7 of the Ironworkers, which is the particular local involved in this case. 9 One member of the gang , Green, was absent this day, and he was temporarily replaced by another employee. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the gang. That same morning 16 ironworkers on the project quit work in protest against the yardgang terminations. C. Further findings Respondent claims that the layoffs were for lack of work, and Respondent ad- duced management records and Cole testified in effect that fewer ironworkers were needed at the time and that he and McCaffrey had decided early in the week of June 26 to lay off some employees in this job classification. On Friday, the day of the layoffs here in question, according to Cole's testimony, Cole and McCaffrey decided to lay off the yard crew allegedly because of a falling off of materials in the freightyard. Cole testified that Respondent sent a crew to the freightyard on only three occasions between June 26 and July 24, each time for less than a day. Cole also testified in effect that Respondent had also intended to lay off additional ironworkers, but that such additional layoffs were obviated by the 16 resignations on June 29, as stated above.? In addition to the timing of the layoffs vis-a-vis the walkout and the purported questioning and remarks by Townsend respecting "agitators," the General Counsel points to additional circumstances in support of his contention that the layoffs were discriminatorily motivated. Thus, on the occasion of the earlier ironworkers' walk- out, Project Manager Hanna told General Foreman Ryan and Shop Steward Scibelli to get rid of "troublemakers." Cole admittedly "very seldom" concerned himself with which employees were to be laid off, such decision being usually left to lower supervision; in this case he and McCaffrey made the determinations.8 Respondent did not first notify Scibelli, the steward, in making the layoffs, although such prior notification is the regular procedure, as Townsend admitted and then attempted to deny. Cole testified that there were no separate openings at the time for the individual gang members; the record shows, however, that Respondent had engaged a new employee to report on June 29. Also, Townsend testified that the quitting of the 16 employees on June 29 did in fact cause a shortage of ironworkers and he further reluctantly admitted that either Cole or McCaffrey had instructed him that same day (June 29) to hire additional ironworkers; Respondent did hire 5 new ironworkers the week of June 29. Without discussing additional supporting circum- stances, I shall now take up the credibility question concerning the alleged "agitator" statements of Townsend. It is recalled that the gang asked Scibelli whether he knew why they were being laid off and Scibelli testified that they told him on that occasion that they did not know any reason therefor. Scibelli's testimony does not conclusively establish whether the gang did or did not mention the alleged "agitator" statements to him at the time; the specific question was not put to Scibelli although he did not mention such alleged statement in,relating his conversation with the gang. Respondent asserts the improbability of the statement being made by Townsend and not being related to Scibelli, particularly as the gang told Scibelli that they did not know the reason for the layoff.° Respondent also points to the unlikelihood of Townsend making the alleged "agitator" remarks to Foreman Gibbons, particularly on the second occasion when Gibbons' own name was included on the layoff list which Townsend showed to Gibbons at the time. In addition there is the testimony of Townsend denying the remarks imputed to him, and the fact of Townsend's membership in the same Ironworker Local as the gang members and Townsend's testimony that he "wouldn't go around to find agitators. I belong to that same union." On the other hand, McCaffrey did not testify, and he is the individual who gave the layoff list to Town- send; and Respondent also did not produce as witnesses any of the named foremen whom Townsend also had purportedly questioned as to "agitators." Mindful of all of Respondent's contentions in this regard, I am nevertheless convinced that Gibbons was a wholly credible witness, and I credit his version of conversations with Townsend. The record establishes Respondent's contention, I find, that there was a legitimate cutback in personnel during the period of the layoffs in question here. The record further establishes, however, and I conclude, that Respondent selected the yardgang for layoff because they walked out and induced other ironworkers to walk out on June 25, 1959. 7 Respondent had 69 ironworkers on June 22, and 47 on June 29, and it did not again reach 69 until August 6 s Cole testified that he did enter such discussions when large groups of employees are laid off The yardgang was hardly a large group. Moreover, I must say that Cole did not impress me as a reliable and completely honest witness. e One possible interpretation is that they did not know why Respondent should con- sider them to be "agitators." BECHTEL CORPORATION 895 D. Further contentions and conclusions Generally, it is unlawful to discharge or otherwise to discriminate against em- ployees for strike activities. But such activities are ordinarily not protected 10 under the Act where they violate a valid no-strike agreement, and the parties are agreed that there was such outstanding agreement here. The General Counsel asserts, how- ever, that by permitting the yardgang to return to work and remain at their duties for the rest of the day, Respondent in effect has condoned the unprotected nature of the strike and may not rely upon this contract breach as a lawful basis for discharge." Respondent asserts, on the other hand, that this particular strike contravened the policies of the Act and therefore was not condonable in law.12 Respondent further rejoins that, in any event, it did not condone the contract breach under consideration here. The General Counsel contends that the strike did not violate statutory policy within the aforecited Mackay case, and he accord- ingly also joined issue on that matter Condonation is a factual matter which the General Counsel must establish by a preponderance of the evidence in any given situation.13 Although condonation is usually deemed to be established where an employer actually takes back an employee after an unprotected strike, I am nevertheless not satisfied that Respondent con- doned the strike activities in question here. Respondent, as I view the situation, promptly endeavored to ascertain and it did ascertain which employees were respon- sible for the walkout and it took timely action that same day on this basis of such investigation 14 There was no express forgiveness by Respondent to the alleged discriminatees (although I do not suggest that such expression is indispensable to a finding of condonation), and the alleged discriminatees were not misled by the fact that they were permitted to return pending discussion of the disputed job assignment. Mulley, one of the alleged discriminatees, thus testified that "[I] did not have . any promise or agreement or understanding in any way, shape or form from the Company that if [I] went back to work at the yard [I] wouldn't be discharged or laid off . . . [I] went back to work because Gibbons [the foreman, who also was laid off at the time] said let's go and that's all. . The record, I find, does not preponderantly establish condonation in this case. Without reaching the aforementioned Mackay question, I conclude that Respondent did not discriminate against the yardgang in violation of Section 8(a) (1) and (3) of the Act and I shall accordingly recommend that the complaint herein be dismissed." [Recommendations omitted from publication.] 10 N.L R It v Sands Manufacturing Co, 306 U S 332, 344 Compare Mastro Plastics Corp , et at. v. N L R B , 350 U S. 270 11 See, for example, N L R 13 v F A. Laboratories, Ina, 188 F 2d 885 (C A. 2), cert denied 342 U S 871 ; Union Twist Drill Co , 124 NLRB 1143 , Plasti-Line, Incorporated, et at d/b/a Sign Fabricators, 123 NLRB 1471 Cf. N L R.B v. Thayer Company, etc, 213 F 2d 748, 752 (C A 1), cert denied 348 U S. 883 19 See Mackay Radio and Telegraph Company, Inc, 96 NLRB 740, 743. Cf Union Twist Drill and Plasti-Line cases, supra 13 Merck and Company, Inc., 110 NLRB 67, 70 1+ Compare Clearfield Cheese Company, Inc, 106 NLRB 417, 422, mod 213 F. 2d 70, 75 (CA 3). 15 The General Counsel requests that I mention an evidentiary ruling made at the hear- ing After examining one of his own witnesses and then tendering the witness to Re- spondent for cross-examination, the General Counsel submitted to Respondent, at Respondent's request , a pretrial affidavit of the witness Respondent thereupon examined the document and proceeded to cross-examine the witness, but without referring to the document on cross-examination. The General Counsel then offered the document in evidence and Respondent objected. Although I ordinarily would have sus- tained the objection, I nonetheless received the document in evidence in conformity with Massachusetts practice that "where a party at a trial calls for a document from his opponent and in response to the call receives and examines it, the document may be put in evidence by the opponent [the party who produced the document], even though it would have been incompetent if it had not been called for and examined " Leorard v Taylor, 315 Mass. 580, 53 N E 2d 705, 706-707 See Wigmore, Evidence (3d ed 1940), § 2125 Rule 43 of the Federal Rules of Civil Procedure provides, in part "All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in courts of general jurisdiction of the State in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs. .. .