Huber, Hunt & Nichols, Inc.

HUBER , HUNT & NICHOLS, INC 201 Huber, Hunt & Nichols, Inc. and International Union of Operating Engineers , Local 66, A, B, C, D & R, AFL-CIO. Case 8-CA-5601 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS Youngstown, Ohio, on January 6, 1970, on com- plaint of the General Counsel and answer of Huber, Hunt & Nichols, Inc., Respondent herein, some- times called the Company.' The issue litigated is whether Respondent violated Section 8(a)(3) and (1) of the Act2 in its treatment of Maynard Flanagan. After the hearing the General Counsel and Respondent filed helpful briefs, which have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: On April 14, 1970, Trial Examiner Alba B. Mar- tin issued his Decision 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 complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respon- dent filed a brief in answer thereto. 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 briefs, 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 hereby orders that the complaint herein be, and it hereby is, dismissed. ' The General Counsel's exceptions directed to the credibility resolu- tions of the Trial Examiner are without merit The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponder- ance of all relevant evidence convinces us that they are incorrect On the entire record , such a conclusion is not warranted herein Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) In agreeing with the Trial Examiner that Flanagan was not a completely credible witness, and that his testimony regarding alleged remarks by Respondent 's Super- visor Kamp as to the effect of Flanagan 's joining the Union and how Flanagan would have fared if he had not joined the Union should be discounted , we find it unnecessary to, and do not, rely upon the Trial Ex- aminer's alternative findings that Kamp 's remarks were in any event in- nocuous TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner : This case, with all parties represented , was heard before me in 184 NLRB No. 23 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Indiana corporation with its prin- cipal office and place of business in Indianapolis, Indiana, is engaged as a general contractor in the construction of industrial and commercial facilities. The events herein occurred at the project in Lord- stown, Ohio, where Respondent is engaged in the construction of a Fisher Body Stamping Plant under contract with the Fisher Body Division of General Motors Corporation. During each of the calendar years 1967 and 1968 Respondent received at the project goods valued in excess of $50,000 directly from points outside of Ohio. Respondent admitted and I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 66, A, B, C, D & R, AFL-CIO, herein called the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Respondent Was Not Proven To Be Hostile Towards the Union The Union began an organizational campaign among Respondent's engineers in about the middle of February 1969. Respondent's engineers were members of survey crews, classified on the election eligibility list as field engineers (party chief), rod- men, and instrumentmen . On March 25, 26, 27, and 31 the Union conducted organizational picket- ing and an organizational strike, and during those days there was no work done. Many, or most, of the survey crews, including all the party chiefs but one, were on the picket line during those days. On April 8, 1969, the Union filed a petition for an election . On April 23 Respondent, acting The Union filed the charge on September 26, 1969 2 "The Act " refers to the National Labor Relations Act, as amended, 29 U S C Sec 151, et seq 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through Vice President Paul E. Muehlenbein, en- tered into a consent election agreement with the Union. On May 5 Respondent furnished an eligibili- ty list for the election, consisting of 19 names. The Union won the election, held on May 12. Respon- dent bargained with the Union, and a contract was achieved in late August or early September which granted increases retroactive to the date of the election. Upon the above testimony and in the absence of any substantial evidence showing company hostili- ty, I find that Respondent accepted the practices and procedures of collective bargaining and was not hostile to the Union. B. As a "company man" Flanagan Had a Status Separate From the Other Party Chiefs Maynard Flanagan worked for Respondent at the project as a party chief from January 15, 1969, until his termination on September 12, 1969. Although a party chief was not a supervisor3 the Company regarded Flanagan as a "company man," a concept not provided for in the Act but important to the resolution of the issues herein. The basic and controlling question is whether Respondent treated Flanagan as it did because he "joined" the Union and to discourage membership in the Union, or possibly because he didn't live up to expectations as a "company man." Although "company man" was nowhere defined in the record, his attributes showed that he was a part of the company cadre that moved from project to project whereas other employees were hired lo- cally for a specific project. A company man received his paycheck in an envelope directly from company headquarters in Indianapolis a day ahead of the local employees, who were paid "in a bunch" by the payroll clerk. A company man was salaried in that he was guaranteed he would receive pay for 40 hours a week regardless of the weather or of picket lines which barred work, whereas the local employees were hourly paid only for the hours they actually worked. A company man was covered by Respondent's insurance program and local em- ployees were not. A company man received a 2- week paid vacation after he was a company man for 12 months. There was some indication that a com- pany man received a Christmas bonus. And in Flanagan's case, at least, a company man had his moving expenses from project to project paid by the Company. As a witness Flanagan knew of no hourly paid men whose moving expenses were paid by the Company. Flanagan did the same work as the several other party chiefs, but his status was different from theirs in that he was a company man and they were not, with possibly an exception or two. Respondent did not include Flanagan on the eligibility list it sup- plied for the election, and the Union did not get Flanagan's name added to it although he had signed a union authorization card on February 26. Party chiefs were included in the agreed-upon unit, and the hourly paid party chiefs were included on the eligibility list and voted. Flanagan understood that he had a different status from the other party chiefs, or most of them, and he accepted the emoluments of that status. He was paid for rainy days when there was little or no work done. He sought a vacation when he learned that Kamp was getting one even though he knew the hourly paid party chiefs were not then getting vacations. Without protest from him, insofar as-the record showed, his contribution to the company in- surance program was deducted from his checks. He sought and accepted having the Company move his house trailer across the State from Cincinnati to Lordstown when he negotiated the job. Also, although he signed a union authorization card on February 26 he did not picket with the others in March and he accepted his guaranteed pay for the picketed days when there was no work done. In ad- dition he didn't vote at the election in May and didn't present himself at the polls and try to vote. Flanagan testified he would not have come to the Lordstown project without the guaranteed pay ar- rangement. Also, an objective evaluation by a Government agency found a significant difference in status between the company men (the salaried engineers) and the hourly paid engineers. In about February 1969, as a result of a wage-hour investigation under the Fair Labor Standards- Act, the hourly paid en- gineers, including party chiefs, were given a retroactive correction of time and a half for all over 40 hours per week, and thereafter were paid on that basis. (Apparently theretofore they had received straight time pay for overtime.) Flanagan and the other company men were unaffected by this action. In addition to all the above, Project Manager Vaughn learned by telephone from the Company's "front office" in Indianapolis that Flanagan, then in Cincinnati as an hourly paid man, wanted to come to Lordstown as a salaried man with all the fringe benefits of a company man; and in Flanagan's hir- ing interview Vaughn told him, according to Vaughn's credible and credited testimony, what ar- rangement the Company would make with him, and Flanagan said "it's a deal." The deal was that Respondent would move Flanagan's trailer from Cincinnati to Lordstown, would put him on a guaranteed salary of $215 a week (in Cincinnati he earned $4.75 an hour which, at 40 hours, came to $190 a week), and would give him the fringe benefits of the company man. ' Party chiefs had no power to hire, fire , suspend, layoff, recall, or effec- tively to recommend such At most they were leadmen of a survey crew of two or three persons HUBER , HUNT & NICHOLS, INC. In Lordstown Vaughn had five company men, three of whom, Kamp, Kelly, and Barnett, were su- pervisors. The other two, Parker and Flanagan, were party chiefs and were not supervisors. From all the above, and upon the preponderance of the credible evidence in the entire record, I con- clude that at all times until Flanagan finally in- dicated to Respondent in early September that he wanted to cast his lot with the Union, he accepted his status as a company man and gave Respondent every reason to believe that he accepted it. C. Flanagan "goes union" To Get a Retroactive Check Flanagan cast his lot with the Union after the contract between the Union and Respondent had been negotiated and the sizeable amount of the retroactive increases had become known.4 On the same occasion when the hourly paid members of the survey crews received their "retroactive checks," (and Flanagan did not), Flanagan paid an initiation fee to the Union and 3 months' dues in advance and began an effort to get a retroactive check for himself. This occurred on September 3, 1969. He discussed the matter with the union representative, and with Project Manager Vaughn. Vaughn, who by his demeanor impressed me as a credible (though not very articulate) witness, credibly testified that on about September 5 Flanagan told him that he was getting pressure from the Union to join the Union. Vaughn replied that that was his prerogative; that he would have to make up his mind; that "you should have made it up 3 months ago when everybody else did." The following morning Vaughn talked to the union busi- ness agent, Malone, telling him, "We can't go both ways." Malone replied, "I want my man to get paid." Vaughn replied, "Well, you understand what we have done up to this point." Malone said, "You satisfy Maynard (Flanagan) and we will be satisfied." Vaughn then talked with his "manage- ment" in Indianapolis and, was told to "make the settlement" with Flanagan. Vaughn then directed the accounting department to figure out what Flanagan would have earned as an hourly paid man since the election, that is, to put Flanagan's wage structure on the same basis as the hourly paid men's under the retroactive arrangement in the contract with the Union. Vaughn added that they should deduct from Flanagan's wages the time after the election he was paid during strikes and picket- ing as a salaried man for which he would not have been paid as an hourly paid man because none of them crossed any picket line or worked on such days. The rainy day hours for which he had been paid were not deducted, however. (This latter fact does not change any conclusions reached herein.) ' The retroactive increases meant the hourly paid party chiefs earned $1,420 more between the election on May 12 and the end of August than Flanagan did 203 Vaughn also had the accountant deduct Respon- dent's cost in moving Flanagan's trailer across Ohio from Cincinnati to Lordstown, which it did for him at his request when he wanted to become a salaried company man and would not have done for him as an hourly paid man. On September 9 Vaughn presented the accoun- tant's one-page "settlement" account to Flanagan including the deductions stated above. Vaughn ex- plained the settlement to Flanagan and Flanagan accepted it, said it was satisfactory, and signed it just under a statement at the bottom reading as fol- lows: I, Maynard Flanagan, do hereby accept the amount of $741.66 as full and final settlement of backpay due me from the beginning of my employment on the Fisher Body Stamping Plant, Lordstown, Ohio. No further claims will be registered. There was no coercion upon Flanagan to get him to sign this. Flanagan then received a check for $741.66 which he would not have received had he remained a salaried company man.5 The General Counsel contended that these deductions by Respondent were a violation of Sec- tion 8(a)(1) of the Act. Flanagan testified that in explaining the deduc- tions to him, Mr. Vaughn said that they went through a great deal of expense to move me up here and put me on a guarantee of 40 hours and he didn't feel the company should have to pay moving expenses and that I couldn't be in the union and also in the company. Respondent's defense, persuasive in the light of the entire record, was that in deducting the moving expenses and the picketing hours Respondent was simply trying to "unwind" its arrangement with Flanagan whereby he became a salaried company man, and was trying to put him as nearly as possible on a par with the hourly paid men as of the con- tract retroactive date, the election date. Respon- dent urged, persuasively on the entire record, that the deductions were made not because Flanagan joined the Union, but because he was a company man, and to preclude discriminatory treatment in Flanagan's favor; so that Flanagan would not have received more than the other company men as well as more than the union men. Had the Company not "unwound" the arrangement or rolled back Flanagan's pay status to the retroactive date, Respondent would have been permitting Flanagan to reap a reward for his dilatoriness and vacillation in making up his mind and his deceptive behavior towards Respondent in the meantime. As has been seen above, from the beginning of his employment in Lordstown until early September, a period of nearly 8 months, Flanagan had behaved toward 5 From the $1,420, $442 was deducted for moving expenses and $236 was deducted for hours Flanagan had been paid but had not worked because of strikes and picketing 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent like a company man and had given the Company the impression that he was staying with the Company and not going into the Union. When the subject of the Union had come up in his discus- sions with his supervisors, Flanagan had talked as though he expected them to make the decision as to whether he should go with the Union or stay with the Company-although he had already signed a union authorization card as early as February 26. Flanagan's testimony, like his behavior towards Respondent,, was at times evasive , frequently un- clear,_ and in large part incredible . Especially in- credible was his testimony about his own motives and reasons for actions . Throughout his testimony he was obviously seeking to equate his status with that of the hourly paid party chiefs even though he knew the situations were not equatable since he had benefits as a company man that the hourly paid men did not have. The General Counsel contended that a question attributed to Vaughn by Flanagan's testimony was unlawful interrogation . Flanagan testified that at a meeting with Vice President Muehlenbein present Vaughn asked Flanagan , "Maynard, how come you're pushing for the Union?" The rest of Flanagan's testimony about this alleged conversa- tion shows that Flanagan was referring to his Sep- tember 5 conversation with Vaughn set forth above . Muehlenbein, who was not regularly in Lordstown, was not present at this meeting although , he had been there earlier . In the light of the entire record I do not credit Flanagan's testimony as to this alleged question. Further, the alleged question makes no sense in the context of that conversation with Vaughn , since Vaughn knew of the contract settlement the Company had al- ready made with the Union and knew that Flanagan had not in any sense been a "pusher" for the Union. D. The Termination of Flanagan Project Manager Vaughn is in charge of building a plant for General Motors Corporation, which is a large responsibility . His testimony revealed that he works closely with his supervisors in the Company in Indianapolis. At the project he holds monthly meetings to determine, among other things, his manpower needs in the future. Present at these meetings are his general superintendent, superin- tendents, at least one of whom has been a superin- tendent for 10 years, all the general foremen, the "coordinators"; the "people that direct that project for me." When a job gets to a certain stage, Vaughn testified, "this review happens every week." At such a meeting held about the middle of Au- gust it was determined that the survey aspect of the work was diminishing and that they could begin to release the survey engineers, including most of the salaried engineers . Vaughn reported this judgment to the "front office" and indicated he could soon release _"three company men" and begin to get along with "local people " as far as engineers were concerned . Of the 20 or so survey engineers Vaughn credibly testified he knew only 5, his "five keymen" including Flanagan . Pursuant _to this busi- ness judgment, not related to union activity, one of the five was released - August 29 , Flanagan was released September 12, a third was released Oc- tober 3 , and, a fourth was released at the end of December. The record does not reveal how many hourly paid party chiefs, rodmen, and instrument- men were terminated , or when . Vaughn intended to complete the survey work with- them. - Vaughn credibly testified , though elliptically, that he tried to get each of the four company men, in- cluding Flanagan, assigned to some other company project, but succeeded as to only two. He testified that a week before Flanagan left, Vaughn tried to get him another assignment with the Company but without success. Flanagan testified on direct examination that Kamp, the supervisor who on September 12 told him he was being laid off, when asked the reason, replied, I don't know, there is nothing I can do. We are going to lay you off today.... If you hadn't joined the union you would have been here until the job was over and gotten a $500 Christmas bonus plus a vacation and possibly transferred to another job. By the time of Flanagan 's cross-examination this al- leged reason was changed in significant detail. On cross-examination Flanagan testified, The statement was made to me that if I hadn't joined the union I would have been there until the job was over and I would have received a Christmas bonus and vacation pay and transferred to another job. Thus by cross-examination the $500 Christmas bonus had become a Christmas bonus, the vacation had become vacation pay, and the possible transfer to another job had become a certainty . The fuzzi- ness and lack of precision in Flanagan's testimony, of which this is an example, is another reason why I found him not a completely credible witness. Assuming Kamp expressed himself along the lines of Flanagan 's testimony, and assuming Kamp was in a position to know why Flanagan was being ter- minated (which the record does not surely establish ) it is obvious in the light of the . entire record that Kamp was saying not that Flanagan was losing out because he joined the Union, but because he had chosen to abandon his status as company man with its fringe benefits. There was nothing antiunion in Kamp's alleged remarks or in Kamp, insofar as the record showed , and nothing antiunion proven about Vaughn or, insofar as the record showed, about the Company . Respondent was not hostile to the Union , as has been seen above, and in any case the record is lacking in proof that Respondent discriminated against Flanagan to encourage or discourage activity or HUBER, HUNT membership in the Union , which is required for a Section 8(a)(3) violation. The General Counsel relies heavily upon the fact that Flanagan was separated 3 days after his "settle- ment" with Vaughn. Given a different record, given substantial proof of hostility, there would arise from this timing a supportable inference in support of the complaint. The record does not show precisely when the decision to separate Flanagan was made or by whom. He may have been selected as the second company man to go rather than the third or fourth, because he was lower in company rank than number three, Barnett, and number four, Kelly; or & NICHOLS, INC. 205 because Vaughn felt he was let down by Flanagan as one of his five "keymen" among the survey en- gineers. In any case the record does not support a finding that Flanagan was discharged because he joined or assisted the Union and to encourage or discourage membership in the Union. Respondent did not consider him a part of the union movement, nor was he. Upon the preponderance of the credible evidence in the entire record considered as a . whole, I recommend that the complaint be, and it hereby is, dismissed in its entirety.