Swank Construction Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swank Construction Company and Roger E. Brinker. Case 6-CA- 10680 December 15, 1978 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBI RS P Ni I I() AND) TRUTI SI)AI I On August 16, 1978, Administrative Laaw Judge Almira A. Stevenson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondent filed cross-exceptions and a brief in answer to the General Counsel's exceptions and in support of its cross-exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith,' and to adopt her recom- mended 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 the complaint be, and it hereby is, dis- missed in its entirety. I We find that the General Counsel has failed to establish a prima facie case of unlawful antiunion discrimination against Respondent in reference to its layoff of employee Roger Brinker on October 21. 1977, Accordingly, we agree with and adopt the Administrative Law Judge's conclusion that Respondent did not violate Sec. 8(aX3) and (Il when it laid off Brinker. In so doing. we do not rely on the Administrative Law Judge's reference. in support of a portion of her analysis, to two Board cases cited in fn. 15 of the attached Decision, for reasons hereafter stated. The Administrative Law Judge stated in her Decision that in the circum- stances of this case it was "not interference with a protected activity nor anti union discrimination to attempt to discipline an employee for failing to follow the contract procedure in the pursuit of grievances" In support of that proposition, she cited Associated Fairlawn Companies, d h a The Hrlton West Inn. 221 NLRB 1058 (1975), and Rappaport Erhihit, Inc . 224 NLRB 1558 (1976). The citation is not appropriate In Hilton West Inn, failure to follow the proper grievance procedure was not a motivational issue, as it was in the instant proceeding, although the Board did find that a supervisor had not evidenced animus against the al- leged discriminatee by asking her to discuss a complaint with him prior to grieving it through her union. In Rappaport. a footnote to the Board's adop- tion of the Administrative Law Judge's Decision specifically found that the respondent's lawful refusal to rehire the alleged discriminatee was not re- lated to "his having filed grievances while acting as shop steward." DECISION SiArEMENI OF IHE CASE Ai.MIRA ABBOT SIEVENSON. Administrative Law Judge: A hearing was held in this proceeding April 24, 1978, in Erie, Pennsylvania. The charge was filed and served on Respon- dent October 31, 1977. The complaint was issued Decem- ber 30, 1977, and duly answered by Respondent. The issues are whether Respondent violated Section 8(a)(I) of the National Labor Relations Act, as amended, by interrogating and threatening employees, and violated Section 8(a)(3) and (1) of the Act by laying off Roger Brinker on October 21. 1977. For the reasons fully set forth below, I recommend that the complaint be dismissed. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FA(T AND CONCI-USIONS OF LAW I JURISDIC TION Respondent admits, and I find, that it is a corporation with its principal place of business located in New Kens- ington, Pennsylvania, and is engaged in the business of bridge construction in Pennsylvania and Ohio. During the 12-month period immediately preceding the issuance of this complaint, Respondent received goods and materials valued in excess of $50,000 directly from points located outside Pennsylvania for use at its facility in New Kensing- ton, Pennsylvania. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. L ABOR ORGANIZATION Laborers' International Union of North America, Local 603, AFL-CIO, herein called the Laborers' Union, is a la- bor organization within the meaning of Section 2(5) of the Act. III ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent has been engaged for several years as a sub- contractor replacing superstructure of bridges on highways in Pennsylvania. Its work is largely seasonal and is regu- larly checked by inspectors and the project engineer of the Pennsylvania Depai-tment of Transportation. On May 1., 1977, work began with John Murdock, a member of the Carpenters Union for 5 years and a carpen- ter foreman and general foreman for Swank during prior seasons, as job superintendent; and Charles Johnson, a 28- year member and former steward of the Carpenters Union as well as former carpenter foreman, as general foreman. 844 SWANK CONSTRUCTION COMPANY At the peak of the 1977 season, Respondent employed 77 employees consisting of 40 laborers, 18 carpenters, 5 car- penter foremen, 6 cement masons, 6 operating engineers. and 2 truckdrivers. All were union members, and each group had aa on-site steward. Complaints were brought to Superintendent Murdock by all the stewards during the 1977 season, 2 or 3 by the cement mason steward. 6 to 8 by the carpenter steward, 10 to 12 by the operating engineer steward, and 2 or 3 by the Teamsters' steward. Respondent began cutting back on its work force in Au- gust, and by October 21, 1977, it had only 13 laborers left on the job. On that day it laid off two laborers-Roger Brinker, the Charging Party, and one Michael Kelly. The remaining 11 laborers were laid off in groups thereafter, the last group on November 25, 1977. The complaint alleges, in effect, that Superintendent Murdock threatened to blacklist Brinker and laid him off approximately I month before the end of the season be- cause of his aggressiveness as steward of the Laborers Union and because Brinker prevailed over Murdock in an arbitration proceeding growing out of Murdock's having discharged Brinker in mid-August 197'i. The complaint also alleges that Murdock coercively interrogated Michael Mukina, Teamsters steward, in late September 1977. Respondent denies the unfair labor practices, and con- tends that Brinker was selected for layoff before the 11 laborers who were retained on the payroll because of his careless unproductive work performance and insubordina- tion. Swank employed Brinker during the 1975, 1976, and 1977 seasons as a laborer who performed work chiefly as a concrete technician whose job it was to cure the concrete properly and otherwise to assure its acceptance by the state inspectors. He also placed reinforcing bars (re-bars) in con- crete, shoveled and raked concrete, attended the carpen- ters, and loaded and unloaded trucks. It is the responsibil- ity of the cure man to maintain a constant fog spray on bridge deck concrete for a full 7-day cure period during which time the curing process is checked daily by Pennsyl- vania DOT inspectors. Proper curing is essential for struc- tural soundness, and Pennsylvania DOT Project Engineer Robert Fulmer testified that Pennsylvania DOT had "al- ways had trouble with concrete cures no matter who the contractor is, or what the job is. All jobs, in order to keep the proper cure, it is a continual problem." Brinker was hired in April 1975. He and several (Brinker gave various figures) other laborers, who the then superin- tendent said were the ones who were willing to work, were kept on the payroll throughout the winter of 1975-76. He continued to work for Swank throughout the summer of 1976 until he was laid off in October. Four or five other laborers remained on the payroll for sometime after.' General Foreman Charles Johnson crediblv testified that he unsuces,- fully urged the then superintendent to discharge Brinker during the 1976 season for refusal to obey Johnson's work orders Although hi, oserall per- formancce obviousl[ was considered sufficientll satlsfactors h tWoarranl re- call in 1977. I do not credit Brinker's testimony that his work as neser criticized until after he was appointed Laborers L nion steward In June 1977. My observation of these witnesses and ms stud) of the evidence con- vinces me that In most instances where D)rinker's testimnons and that of Johnson and Superintendent Murdock were at odds. the supersl ,ors were Brinker returned to Swank May 1, 1977, the first day of work. In mid-June, Brinker was appointed steward for the laborers. In carrying out his stewardship, Brinker complained of- ten about Respondent's failure to provide drinking water and out houses for the men, facilities which Superintendent Murdock admits were frequently inadequate. There were other matters that Brinker complained about. One was that the Company was not sending in timely reports for health and welfare coverage and that the men were receiving bills which should have been covered. After a 10-minute meet- ing with the men. Brinker reported the matter to Murdock who promised to take care of it. When Murdock failed to do so, business agent Casey Rzomp came to the site and explained the matter to Brinker who then called another 10-minute meeting and relayed the information to the men. Another complaint involved Brinker's protest to Murdock that laborers were not being assigned certain welding lead work. Murdock told Brinker to send for his business agent, and when Rzomp arrived it was agreed that one laborer would be assigned to the task.2 With respect to Brinker's work performance, General Foreman Johnson testified without dispute that late on an afternoon in August, the Pennsylvania DOT inspector told him that a deck was dry and he directed Brinker to get some water on it. Brinker replied, "I've got some Goddam news for you. I'm not staying. Somebody else can do it." On July 27, General Foreman Johnson instructed Bnnker to meet him at the route 19 jobsite at 6 o'clock the follow- ing morning. On July 28, shortly after 6 a.m., Brinker had not shown up and Johnson began to place materials for the day's work. When Brinker arrived and observed Johnson placing the materials, he went to the office and told Mur- dock, "there would be no nigger foreman doing laborers' work on his project." 3 The laying of concrete on this proj- ect, route 19, was completed about 12:30 p.m. that day. When Murdock visited the bridge at 3:30 p.m., he found it dry and instructed Brinker to get the weephose and put water on it immediately.4 On the morning of July 29, a Pennsylvania DOT inspector reported to Project Engineer Fulmer that the bridge was not being cured properly and that Brinker had told him Fulmer had been on the bridge July 28, and informed Brinker that he did not have to cure the bridge. Fulmer had not been on the bridge July 28, so he telephoned Murdock that his inspector had reported the concrete was dry. not to ever let that happen again, and to "Get water on there and keep it wet," or he would have to take the deck out. 5 Brinker was nevertheless assigned to cure duty on this bridge for the weekend of July 30 and 31. Pennsylvania more .accurale Brinker as as t times confused. and he reconstructed events when he bhelieed it was Io his advantage to do so i Baesed on Brinker's credited testim,,ns iBased on the undisputed testln!ons of Murd)ck. B4 Hsed oi the undisputed testmon, of Murdock. Bised on the mutuall, corroborative testimony of Fulmer and Mur- dck I doi not credit Brinker that Fulmer came to the bridge on July 28. and told him "io wiler the hurlap real good and put the hose on the next morn- ing carls\" hbecause I consider Murdock and Fulmer more truthful than Brinker and because no reason is apparent as to why Fulmer would have departed fromn accepted procedure In this instance I credit Brinker, how- ever, that In 1976 ' urdock ounce suggested that he fudge on the air stan- dard, ai this ltelinorns is undisputed 845 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DOT inspector reports show that there was no water on the bridge on Saturday, July 30, because the tanker had not been hooked up, and that the inspector told Brinker to hook it up; and that on Monday, August 1, the concrete was still dry. Murdock and Fulmer met the next day, Au- gust 2, 1977, to discuss the matter, and Fulmer suggested that Murdock put someone competent on the job as cure- man and take better care of the cure.' Murdock thereupon relieved Brinker from cure duty, and Brinker resigned as concrete technician, reverting to regular laborers' work. Two days later, on August 4, Brinker warned two car- penters not to touch a ramp, which must be moved during the process of pouring the parapet walls of a bridge, as moving the ramp was laborers' work. The carpenters re- ported Brinker's conduct to Murdock. According to Mur- dock, it was because Brinker had issued this warning with- out bringing the matter to his or Johnson's attention, and because of Brinker's failure to cure over the weekend, that Murdock thereupon sent for the business agent to inform him Murdock was discharging his steward. When Brinker called the union hall about his dispute with the carpenters, he was informed that Murdock had already sent for the business agent and that Assistant Business Agent Carmen Piccirillo was on his way to the jobsite. Murdock met with Brinker and Piccirillo that afternoon. Murdock related Brinker's shortcomings on the bridge cure, accused him of harassing the carpenters, and called him a troublemaker. Piccirillo persuaded Murdock not to discharge Brinker, but Murdock warned that if Brinker stepped out of line again he would be discharged. Although resolved either at this meeting or later, the record does not show how the work assignment dispute was settled.' Two or three weeks later, at the time of the first layoff of the season, Murdock again notified the Union of his intent to fire Brinker, and General Foreman Johnson informed Brinker of his discharge for using the telephone too often, "causing to[o] much trouble, stirring up the men and work stoppage." Murdock and Johnson explained that Brinker was observed leaving the job several times to use the tele- phone, at least once without permission; although Brinker told Murdock that he was calling on "union business," the Union subsequently failed to support Brinker's claim that all the calls were made to the Union. Johnson and Mur- dock also testified that Brinker spent working time writing in a notebook, conduct which is unexplained in the record. Murdock also said that he timed Brinker on August 18, talking with two other laborers for 18 minutes, and that Brinker told him he was explaining the re-bar process to the employees, but that re-barring was not Brinker's re- sponsibility since he had quit as concrete technician. Al- though Brinker and employee Barry McGuire credibly tes- tified that Brinker was carrying out an assignment given him by one of the foreman, there is no indication that Mur- dock was aware of the assignment. Brinker filed a griev- Murdock's and Fulmer's testimony. Murdock's and Brinker's testimony. Variances between the accounts of this meeting given by Murdock and the union representatives have been resolved in favor of Murdock. Brinker's and Piccirillo's accounts were incomplete, and I find, inaccurate in some respects; Brinke confused a subject of the meetin with his water and out- house complaints. ance over his discharge, and was reinstated, without back- pay. after a hearing by an arbitration panel, on September Murdock conceded that Brinker's work was satisfactory after his reinstatement, but testified that he felt unjustly treated by the arbitrators and that he had got a raw deal because Brinker's incompetence on the cure was sufficient grounds for discharge and that Brinker had lied at the hearing, and when Murdock asked him why, Brinker re- plied, "It's all under the bridge." l' Murdock admitted stat- ing in the presence of Teamsters steward Michael Mukina, in early September, that he was still determined to get rid of Brinker. Murdock also told Johnson in a conversation on September 15, partially overheard by Mukina, that there should be a way to blacklist someone like Brinker, "that don't want to do what they are told to do and do their work right." " I also find that one day in late September, Murdock told Mukina that the Teamsters business agent had been out to see him about an operating engineer's moving Mukina's truck, and asked, "Did you call the union?" When Mukina denied it, Murdock said, ". . . I don't like unions and I never did and I never will." 12 Murdock also conceded that toward the end of September, he got into a heated discus- sion with Brinker over Murdock's right to send the men home on a rainy day, Brinker threatened to call the Union and Carmen Picirillo about it, and Murdock told Brinker to "Fuck the Union and Carmen both." 13 About October 14, Business Agent Rzomp informed Brinker that he would no longer be the steward. A week later Brinker was laid off. Johnson testified that employees were selected for layoff by mutual agreement between him and Murdock and that his reasons for selecting Brinker at this time were because he "hadn't been coming to work regularly. He hadn't been coming to work on time, and we had to get down to a few men, and we had to keep the few men that were more regular." Murdock concurred that Brinker was frequently late.'4 The reasons Murdock gave for selecting Brinker for layoff were that "I had attempted August 19th to discharge the man and failed. All the reasons that led to that dis- charge were still on my mind. Then he became eligible for layoff, when he was removed as steward by Mr. Rzomp, these factors all had an influence on it. Also, Mr. Brinker After Brinker's reinstatement, Business Agents Rzomp and Piccirillo told him to take his complaints "up through the ranks" beginning with immediate supervision and then to the general foreman before going to the superintendent. After that, Brinker did not call the business agents to the jobsite. although, as found below, he once threatened to do so. )As found above. Brinker's testimony at this heanng and before the arbitrators as to what Pennsylvania DOT Project Engineer Fulmer allegedly told him on July 28. was not true. 1 Based on Murdock's and Johnson's testimony. Mukina's testimony that the statement was made in a conversation about temperature control is not credited, as Murdock explained that temperature controls were not a prob- lem in September. Based on Mukina's testimony. Murdock could not flatly deny this testi- mon', and he admitted "There are occasions when lunions] are not my best friend." 1i I find that Brinker was again confused when he said that Murdock made this remark in connection with Brinker's earlier complaints about water and outhouses. 14 Although no attendance records were presented, this testimony by Johnson and Murdock was not disputed. 846 SWANK CONSTRUCTION COMPANY was, in my estimation, and Mr. Johnson's, one of the least productive of the 13 remaining laborers. It was out policy with laborers and carpenters to keep the better ones for the end of the job." His judgment of Brinker's productivity, he said, was based on his observation which revealed Brinker to be "number 13 of the 13 in all areas related to laborers' work . . . doing the worst job." He denied that Brinker's agressiveness as steward was a factor in his selec- tion for layoff. B. Conclusions Murdock's question of truckdriver Mukina, "Did you call the union?" was not, in my opinion, the kind of em- ployee interrogation designed to identify union adherents so that they can be targeted for coercion or discrimination. Even though Murdock chose this same conversation as an occasion to express his frustration amounting to hostility toward unions, I do not think it can reasonably be said 'hat Mukina was intimidated by the question. After all, it would have been routine for Mukina, as the Teamsters steward, to raise an issue over an operating engineer's driving a truck, and it seems unlikely that such a question would inhibit Mukina from performing his duties as steward in the fu- ture. Moreover, Murdock's spoken wish to blacklist Bnnk- er, I have found, was related solely to Brinker's work per- formance and not to his union or steward's activities. In all the circumstances, therefore, I find that a preponderance of the relevant evidence fails to establish that Superinten- dent Murdock coercively interrogated employees or threat- ened to blacklist an employee in order to discourage union or protected activities, and I conclude that these allega- tions should be dismissed. With regard to the Brinker allegation, this is not the clearest of early layoff cases, inasmuch as Brinker was laid off about the same time in 1977 as he was in 1976, as several laborers were retained longer than he on both occa- sions, and as there is no hint as to when in 1977 he would have been laid off if not on October 21. However, more than twice as many laborers were retained after Brinker's layoff in 1977 than were retained longer than he in 1976, and Respondent appears to concede that he would rot have been laid off when he was if Respondent had had nothing against him. We shall take it as settled then that his layoff was expedited in the fall of 1977, and the ques- tion is why. The credible evidence shows that Respondent had many valid grievances against Brinker's performance during the 1977 season-spending Company time on non company non union activities, being insubordinate to the general foreman, absenteeism, tardiness, and low productivity- but I am convinced that Respondent voiced these griev- ances as makeweight, and that it would not have selected him out for these reasons alone. Therefore, did the vigor with which Brinker pursued his duties as Laborers' Union steward play a part in the deci- sion to select him, as the General Counsel insists? Brinker brought complaints to Murdock on six different subjects, and Murdock expressed himself in a forcefully hostile manner on the last occasion. And yet Murdock voiced equal hostility to steward Mukina over a Teamsters com- plaint without selecting Mukina for early layoff. Moreover, there were a total of four stewards on the jobsite in addi- tion to Brinker and all of them brought complaints to Mur- dock, some more than Brinker, without selection for early layoff as far as the record shows. Calling an employee a troublemaker and citing him for stirring up the men usual- ly justifies the inference that these terms actually referred to union or concerted activities. Here, however, the terms seem applicable to Brinker's insubordinate and epithetical attitude toward the general foieman, so that neither infer- ence is really warranted over the other. I have carefully considered the fact that it was a steward's complaint by Brinker which triggered Murdock's attempt to discharge him in August. I am compelled to conclude, however, in view of the fact that most of Brinker's complaints were resolved, including the triggering complaint, despite its being raised in the context of Murdock's being thwarted in his effort to discharge Brinker, that it was the procedure followed by Brinker in issuing a warning directly to the carpenters not to touch the ramp before taking the dispute up with supervision which was the true motivation, and not the dispute itself which was similar to the Teamsters dis- pute which had no ill effects. It is clear that the Laborers' Union officials were of like view in disapproving the proce- dure followed by Brinker on this occasion, as the)' af- terwards instructed him to take his complaints up the ranks of supervision as provided in the contract. In such circum- stances, and where, as here, the employer runs a union operation, it is not interference with a protected activity nor anti union discnmination to attempt to discipline an employee for failing to follow the contract procedure in the pursuit of grievances. ' 5 I find, as contended in part by both Murdock and the General Counsel, that the operative factors in Brinker's October layoff were the same as those in his attempted August discharge. It is clear that Murdock, frustrated in his efforts to discharge Brinker in August while he was the Laborers' Union steward, seized the first opportunity after he was relieved of his stewardship (through no doing of Respondent) and therefore more vunerable to discipline (the Union has made no effort on his behalf this time as far as the record shows, Brinker having filed the charge in this case himself) to rid himself of Brinker for the same reasons. As Murdock said, he felt unjustly treated by the arbitrators and that he had got a raw deal because Brinker's incompe- tence on the cure was sufficient grounds for discharge, and that Brinker had lied at the arbitration hearing. As Brinker's negligence posed a danger to the structural soundness of the bridge deck and risked the added expense of ripping out and relaying the concrete, it was, in my opinion, valid cause for discharge or layoff. 6 The General Counsel argues that Brinker was selected for layoff because he took his discharge to arbitration. But that is too simplistic. This is not a case where an employer A ..,..oated I a/trla.n ( orlpaniev d h a oht Hilton 14r Inn. 221 NI .RB 10i)8 (1975) Rap£kp,,rt LEhirha., tIn, 224 NI RB 1558 (1976) No ctorrelatlon i a s ho n hctIeen the piesible effect, of BrinkeLc neghllcnce in carraing out instruLitlan` from both supervlsion and PennN)l aani d M1urdock', past uggeslion that Brinker fudge on the air standard Nor does the fact Ihat improper curing is a problen throughout the Industr' excuse Brinker's conduct. 847 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retaliated against an employee for participating in the grievance-arbitration system such as those to which the General Counsel has called my attention. This employer resented the arbitration award because it felt the award was unjust and was procured by a falsehood. The employer retaliated against Brinker not because he invoked the griev- ance-arbitration procedure, but because he bypassed the contract procedure in the jurisdictional dispute matter and because he neglected his responsibilities, which, as far as the NLRA is concerned, it had a right to do. Accordingly, I find that a preponderance of the credible evidence does not support the allegation that Brinker's lay- off was violative of Section 8(a)(l) or (3), and I conclude that it should also be dismissed. Upon the foregoing findings of fact and conclusions of law and the entire record, I hereby issue the following rec- ommended: ORDER '7 The complaint is dismissed. | 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. 848