Broyles & Broyles Mechanical Contractors, Inc.

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broyles & Broyles Mechanical Contractors, Inc. and International Union of Operating Engineers, Local 819, AFL-CIO. Case 16-CA-2881 July 24, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On May 29, 1967, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner's Decision. Thereafter, the Respondent prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's ex- ceptions and brief, and the entire record in this 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, and hereby orders that the Respondent, Broyles & Broyles Mechanical Contractors, Inc., Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION RAMEY DONOVAN , Trial Examiner : Upon a charge filed on January 30, 1967 , by International Union of Operating Engineers , Local 819 , AFL-CIO, herein the Union, the General Counsel issued an amended com- plaint under date of March 21, 1967 , against Broyles & Broyles Mechanical Contractors , Inc., herein Respond- ent or Broyles. The Complaint alleged that Respondent discharged employee Sweaney because of his union ac- tivities , and thus violated Section 8(a)(1) and (3) of the Act. In its answer, Respondent denies the commission of unfair labor practices. The Trial Examiner heard the case , with the General Counsel and Respondent represented by counsel, in Fort Worth, Texas, on April 3, 1967. Upon the entire record in the case and from the obser- vation of the witnesses , the Trial Examiner makes the fol- lowing: FINDINGS AND CONCLUSIONS 1. JURISDICTION The Union is a labor organization within the meaning of the Act. Respondent is a Texas corporation with its principal of- fice and place of business in Fort Worth, Texas, where it is engaged in the building construction business. In a representative yearly period, Respondent, in the course of its business, purchased goods valued in excess of $100,000, of which more than $50,000 worth was shipped in interstate commerce to its place of business from points outside the State of Texas. Respondent is an employer engaged in commerce within the meaning of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICE In 1966 and 1967, Broyles was one of several contrac- tors performing work on a multimillion dollar convention center in the Fort Worth, Texas, area. The jobsite em- braces approximately 13 city blocks. To secure employees for the convention job and for other jobs in the area, Broyles followed a practice or ar- rangement of calling the union hiring hall for employees that performed operating engineers' work. Upon request, the Union then sent employees from its hiring hall to the contractor. If the contractor-employer had requested a particular employee by name , the Union would assign the employee if he were available . Sweaney , the employee in- volved herein, had previously worked for Broyles and, in the latter part of 1966, Lindsey, Broyles' job super- intendent, had requested Sweaney by name from the Union for the convention job. Sweaney was thereupon assigned and he had worked a month or two on the job before he was discharged. Sweaney, during his employ- ment by Broyles, on the convention site , had been the Union's job steward, having been so appointed by the union business representative, Helton. In addition to Broyles, other contractors on the job also employed operating engineer employees Sweaney was the Union's job steward for the entire job insofar as operating engineers were involved. Respondent was aware of Sweaney's status as employee and job steward through- out his employment, and Sweaney had functioned as such. As an employee, Sweaney was admittedly a good workman, and Respondent had no fault to find with his work. The function of the union job steward , according to Helton , was to see to it that the work jurisdiction of operating engineers was protected and recognized as to the performance of work and the operation of equipment that came within the operating engineers' trade or craft. The steward , in short, was expected to see to it that operating engineers, and not some other trade or craft, performed the work of operating engineers.' Helton ' In the construction industry , employees are paid for work performed and it is apparent that the availability or the protection of available work for a particular trade or craft is important to the members thereof and to the Union that represents them 166 NLRB No. 99 BROYLES & BROYLES, INC. 835 testified that it was the duty of the steward, when he saw a violation of operating engineer work-assignment stan- dards or rules, to approach the people involved and to request that an operating engineer be assigned to the par- ticular task which, commonly, involved the operation of operating engineer type equipment. In the event that such action by the steward is unsuccessful, the steward is ex- pected to call the Union's business representative and turn the matter over to him. As an employee of Broyles on the convention jobsite, Sweaney had an ambulatory type job that took him over the entire construction site. He drove a company pickup truck equipped with a two-way radio that facilitated com- munication with his employer's representatives as he ranged over the large area of the construction site. By means of the truck, Sweaney serviced various machines and equipment located throughout the construction area. He hauled fuel and serviced welding machines, air com- pressors, water pumps, generators and other equipment being used on the job. As mentioned, Sweaney's em- ployer had no complaints about the employee's work or that he was not tending and servicing equipment as required by his job. On January 26, 1967, Cadenhead Construction Com- pany, one of the other contractors on the convention jobsite, rented a water truck from one Stark. The truck was equipped with a pump for pumping water, and it ar- rived on the jobsite about noon with an operating en- gineer, Haggard, a member of the operating engineers union, to operate it. Shortly after the truck came to the jobsite, Haggard told Sweaney, the steward, that Cadenhead's foreman had informed Haggard that Cadenhead could not afford an operating engineer to operate the truck's water pump on the job, and that Cadenhead would use a laborer to operate the pump.2 Sweaney then went to where the truck was operating on -the jobsite, and the Cadenhead foreman was there. Some of the equipment that Sweaney was responsible for was also in the building where the water truck was operating. Sweaney said to the Cadenhead foreman that the pump should not be operated without an operating engineer on it but that, if gravity alone was used and the pump was not operated, Sweaney had no objection. The foreman said that he would call his people by radio and see about securing an operating engineer.3 Sweaney then left. Later, on the same day, as Sweaney was making his customary rounds in his truck to service various pieces of equipment on the jobsite, he noticed that the aforemen- tioned water truck pump was being operated by a laborer. Sweaney next stopped at the Broyles office on the jobsite. The office complex included a storage area where Swe- aney secured fuel for his equipment and where pumps and other machinery that he used were kept. Sweaney telephoned Helton from the office on a pay telephone and reported the Cadenhead situation regarding the fact that a laborer and not an operating engineer was operating the pump. Sweaney suggested that the matter was now up to Helton to handle. Later that same afternoon, after work, a meeting was. held between the Union and the Cadenhead Company.' The Company's complaint was that Sweaney as job steward was causing trouble by going around "looking for infractions of the rules." At the hearing, Helton indicated that the Union felt that the Cadenhead Company was, in effect, objecting that Sweaney was doing a good job as steward.5 After the aforementioned water pump incident on January 26, either the same day or the following day, Keel, Cadenhead's superintendent , said to Lindsey, Broyles' superintendent, that the latter would do Keel "a big favor if I [Lindsey] got rid of the man [Sweaney]." Although Lindsey testified that Keel had no authority to tell Lindsey what to do, Lindsey states that he, Lindsey "thought it would be the best way to get out of the whole situation, was to get the cause of the trouble off the job, which I think I did," by discharging Sweaney. On January 27, Lindsey told Sweaney that he was discharging him that evening. Lindsey said that it was because of Sweaney's activities with respect to the water pump incident the day before. Sweaney said that as steward he simply told the Cadenhead people to man the pump with an operating engineer if the pump was going to be operated. Lindsey repeated that he was discharging Sweaney, and, when Sweaney mentioned that he was the job steward, Lindsey remarked that the Company "was not paying for somebody to be job steward," for the entire job. Sweaney suggested that Helton be called so that some arrangement or accomodation could be worked out. Lindsey said that Sweaney could call Helton if he wished but he was still discharged. Lindsey assured Sweaney that there was nothing wrong with his work and that he liked Sweaney as a person. Lindsey said, however, that he was "getting so much pressure" that he had to discharge Sweaney. Helton met with Lindsey and offered to appoint a separate job steward for Cadenhead's work since Cadenhead did have some operating engineers on his payroll. Helton offered to do the foregoing if Lindsey would reconsider his 'decision to discharge Sweaney. Lindsey refused and Sweaney was discharged on January 27. Sweaney had received no admonition or comment from his employer about the performance of his steward duties prior to his discharge or about the fact that he was serving as steward for the entire jobs Although there was no contractual relationship between Broyles and Cadenhead, the evidence persuades us that Superintendent Lindsey discharged Sweaney because of a complaint and a request from Cadenhead; 2 Sweaney testified that three other operating engineers on the job also complained to him about the fact that a nonoperating engineer was running the water pump This testimony is not controverted. 3 Evidently "walkie-talkie" equipment was common on this large jobsite. 9 Helton and Renfro, union business manager; "Bill and John Cadenhead"; Keel, the Cadenhead construction superintendent, and Swe- aney No representative of Broyles was present. 5 Apparently there had been prior occasions regarding operation of generators and a winch with employees who were not operating engineers, where Sweaney, as steward, had intervened. Sweaney's employer Broyles had never spoken to Sweaney about such incidents Lindsey, Broyles' su- perintendent, testified that in the past he had been told that in a matter in- volving ironworkers and carpenters, Sweaney had said to the ironworkers, "why are you letting the carpenters do your work." At no time did Lind- sey mention this incident to the Umon or to Sweaney. 6 The evidence reveals that it was not uncommon for the Umon to have an employee of one employer serve as steward on the entire construction site. This included other jobs where a Broyles employee was the overall steward. The Union believed that a multiplicity of stewards would lead to more problems and disputes than would be the case with a single steward It would appear that if a number of contractors on a jobsite each employed one or two or more operating engineers and were performing operating en- gineer work, a host of stewards might result in more, or as many, chiefs (stewards) as Indians and potentially more, and possibly conflicting, as- sertions as to work claims. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that but for the Cadenhead water pump incident on January 26, Broyles would not have discharged Sweaney on January 27. I believe it is true, as Lindsey testified, that Cadenhead had no power to make Lindsey do anything pertaining to Broyles' employees. However, as a matter of comity or general cooperation with another contractor, Lindsey discharged Sweaney because of the latter's union stewardship activities regarding Cadenhead's operation of a water pump without an operating engineer on January 26. That incident, together with Cadenhead's complaint to Lindsey regarding the matter, was the precipitating cause of the discharge. Lind- sey rationalized his action, albeit I believe his rationaliza- tion was sincere, on the ground that he did not want Swe- aney, while employed by Broyles and while acting as a union steward, to function as a steward with respect to Cadenhead's employees or with respect to Cadenhead's work, even if the other contractor's (Cadenhead's) em- ployees and work were on the same construction site as Broyles. Lindsey testified: "I never discharged Mr. Swe- aney, as I said before, because his work was not taken care of-which it was. It wasn't that at all. I discharged him because he was stewarding for another company [Cadenhead].`7 There is no reason to believe that Lindsey or his em- ployer, Broyles, were antiunion in the usual sense of the term. Lindsey was and had been a member in good stand- ing of the Plumbers Union for many years. However, on the facts of the case, previously described, it is my opinion that Sweaney's activity regarding the Cadenhead water pump incident was protected union activity under Section 7 of the Act and that his discharge because of such activity violated Section 8(a)(1) and (3) of the Act." CONCLUSIONS OF LAW By discharging employee James Sweaney on January 27, 1967, for engaging in union activity protected by Sec- tion 7 of the Act, Respondent violated Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, conventional remedial action will be recommended. At the hearing, the parties were in agreement that by reason of his discharge Sweaney lost 4 days' work or 32 hours at $4.85 per hour, total of $155.20.9 The matter of interim earnings was also litigated by agreement and no interim earnings were shown. Without contradiction, Sweaney testified that he had sought employment after his discharge by reporting to the union hiring hall. In this industry and in the area, it is my opinion that the union hiring hall was the best source of employment for an ' See also Lindsey's testimony , cited previously in this Decision, where he stated that Keel, the Cadenhead superintendent, told Lindsey that the latter would do Keel "a big favor" if Lindsey discharged Sweaney Lind- sey's testimony, as to what he then did, has also been cited (supra). 8 Sandpiper Builders, 152 NLRB 796, Pioneer Natural Gas Company, 158 NLRB 1067, Radio Officer's Union of the Commercial Teleg- raphers Union (A H Bull Steamship Company) v N L R B, 347 U S 17 The instant decision, based on the facts of the case, is not intended to impair the right of an employer to control, direct, and discipline its em- ployees, whether union stewards or otherwise , with respect to the duties and obligations owed by employees to their employer in the performance operating engineer such as Sweaney. Respondent has not contended otherwise. Accordingly, I shall find that the amount of backpay due is $155.20, without prejudice to Respondent's right to present any previously unavailable or newly discovered evidence bearing on the amount of backpay or other backpay matter not waived by the agreement or stipulation entered into by the parties at the hearing. I shall recommend posting of a notice by Respondent at its office or quarters on the jobsite if Respondent is still engaged at the Fort Worth convention jobsite at the time this decision issues. In the event Respondent is no longer engaged at said site, it is my opinion, in view of the nature of the industry, the nature of employment in the industry, and the nature of the violation, that the Union can secure from the Regional Director a copy of the notice signed by the Employer and post it in the union hiring hall as per- haps the best method of communicating to employees the policy of the Act involved in this case. Upon the basis of the foregoing findings and conclu- sions, and the record, I recommend the following: ORDER Broyles & Broyles Mechanical Contractors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with activities of any of its employees protected under Section 7 of the Labor Management Relations Act, 1947, as amended, by discharging them for engaging in such union activities. 2. Take the following affirmative action: (a) Pay to employee James Sweaney the sum of $155.20, being the amount of wages lost by said Sweaney by reason of his discharge on January 27, 1967. (b) Post at its construction office on the Fort Worth convention site, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately on receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not al- tered, defaced, or covered by other material. In the event that Respondent is no longer engaged in work at the aforementioned construction site on the date of this Deci- sion, Respondent, after signing notices furnished by the Regional Director, shall return said notices to the Re- gional Director so that signed notices may be transmitted to the International Union of Operating Engineers, Local of the employer-employee relationship ° Respondent reemployed Sweaney after 4 days The record is clear that Sweaney was discharged and not suspended and Lindsey stated this explicitly The arithmetic of 32 X $4 85 is $155 20 and not $165 20 as General Counsel has inadvertently stated in his brief ° 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" BROYLES & BROYLES, INC. 837 819, AFL-CIO, for posting in the said Union's office and hiring hall for perusal by employees. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.I I 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." WE WILL NOT interfere with activities of any of our employees protected under Section 7 of the Labor Management Relations Act (National Labor Rela- tions Act, as amended) by discharging them for en- gaging in such union activities. WE WILL pay to employee James Sweaney the sum of $155.20, being the amount of wages lost by said employee by reason of his discharge on January 27, 1967. BROYLES & BROYLES MECHANICAL CONTRACTORS, INC. (Employer) Dated By APPENDIX NOTICE TO ALL EMPLOYEES (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Pursuant to_the Recommended Order of a Trial Ex- If employees have any question concerning this notice aminer of the National Labor Relations Board , and in or compliance with its provisions, they may communicate order to effectuate the policies of the National Labor directly with the Board's Regional Office , 8A24 Federal Relations Act, as amended, we hereby notify our em- Office Building, 819 Taylor Street, Fort Worth, Texas ployees that : 76102, Telephone 334-2921. 305-926 0-70-54