Buck Kreihs Co., Inc.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buck Kreihs Company, Inc. and Odie W. Cox. Case 15-CA-3616 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On May 14, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examin- er's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Buck Kreihs ' The General Counsel has excepted to the provision made by the Trial Examiner with respect to remedying Respondent's discrimination against Cox on June 19 The Trial Examiner recommended with respect to Respondent's failure to employ Cox from I am to 5 am on June 19, that any sum which Cox earned from any other employer during normal working hours on June 19 , 1970, should be offset against the sum due him from Respondent for that date We find merit in the General Counsel 's exceptions in this regard and in accordance with normal Board practice which is justified in the present case, we shall amend the Order to make Cox whole for any earnings he lost because of the discrimination against him Company, Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Delete paragraph 2(a) of the Trial Examiner's Rec- ommended Order and substitute the following in lieu thereof: (a) Make whole Odle W. Cox for earnings he lost because of Respondent's discriminatory failure to employ him on June 28 and 29, 1969, and from 1 a.m. to 5 a.m. on June 19. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U REEL, Trial Examiner: This proceeding, heard at New Orleans, Louisiana, on March 18, 1970, pursuant to a charge filed August 5, 1969, a complaint issued September 26, 1969 and an amended complaint issued February 9, 1970, presents questions whether Respondent, herein called the Company, denied certain work to the Charging Party, herein called Cox, because of the latter's lack of membership in a labor organization,' and whether the Company gave preferential treatment in hiring to members of the Union Upon the entire record,' and after due consideration of the briefs filed by each of the parties hereto,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Louisiana corporation engaged at New Orleans as a marine and industrial contractor, annually receives goods and materials valued in excess of $50,000 International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local 37, AFL-CIO, herein called the Union After the close of the hearing, the Charging Party requested that the record be reopened to permit the introduction into evidence of certain work records of certain company employees, and of certain other records including evidence of company "help wanted" advertisements in local newspapers and of company payments to the Union 's pension fund and to its health and welfare fund Pursuant to this request and by agreement of the other parties, I hereby receive in to evidence as General Counsel's Exhibits 5, 6, and 7 the letter from company counsel dated April 14, 1970, and the attachments thereto setting forth the work records of Messrs Snow, Hubbard , Hunt, Paretti , and Broom, respectively I also receive as Company Exhibit 4 the letter from the Company to its counsel dated April 3, 1970 1 decline to receive the advertisements and contribution records referred to above, as in my view they are not relevant to the issues before me Charging Party argues in his brief that such records would establish that the Company hired in part through the newspapers, notwithstanding an undertaking by the Union to furnish men from its out-of-work list, and that the Company made contributions in behalf of nonunion employees as well as of union members These facts, if established, would not in my judgment be relevant to the determination of the issues raised in this case Two posthearing letters filed by the Charging Party are treated as his briefs 185 NLRB No. 52 BUCK KREIHS COMPANY 621 directly from outside the State, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act. contention that during the summer months of 1969 it had ample employment for all applicants is no defense, particularly as the record shows that this condition altered in October. II THE ALLEGED UNFAIR LABOR PRACTICES A Discriminatory Hiring Practices The Company and the Union are parties to a collective- bargaining contract which provides, inter aka, that the Union will furnish employees to the Company, and that when the Union is unable to supply employees, the Company will employ such workers as may be available. The contract further provides that an employee hired after its effective date must join the Union not later than the 31st day of his employment. Notwithstanding the contract, however, the actual hiring practice of the Company is as described in the following testimony of Felix4 Jacob, the company foreman who is responsible for hiring on the night shift in the boilermaker department- Q. As a practical matter, the company has a shape up every day when they hire people Don't they? A That is right. Q. And you hire your regular people first. A Yes. Q And then in the shape up you usually know who is in the union and who is not in the union? A. Well, more or less, yes. There are new men around here which I wouldn't know. Q. If he is a new man you figure that he is a non-union man? A Well, no. There is a union steward there and he will let you know who is union and who is non- union. Q. Also as a practical matter, how many people do you get referred out from the hall? A. I didn't understand you Q. I said on this shape up when you are there hiring people, do you ever get people sent out from the union hall? A. Occasionally. Q. Is that the normal routine or are they all there at shape up? A Well, the way our work goes most of the men that we need are there at shape up. Q. Both union and non-union? A Yes. The record establishes that in hiring at the shape up the Company gave preference to union members Jacob stated in a pretrial affidavit and again on the witness stand that he hired the available union men first, and then nonunion men. Such a hiring practice is plainly violative of Section 8(a)(3) and (1) of the Act, as the amended complaint alleges See, e.g., N.L.R.B. v Houston Maritime Assn.. 337 F 2d 333, 335 (C A 5, 1964). The Company's ' The name is unaccountably misspelled Fexix throughout the transcript but the correct spelling appears in the signature to General Counsel's Exhibit 4 B. Failure to Give Overtime Work to Cox 1. Cox's employment history Cox, a boilermaker of long experience and great compe- tence, was at one time a union member, but lost his membership in 1958 and has not been able to reacquire it despite his strenuous efforts to do so. During his long experience in ship repair work in the New Orleans area he has worked for many employers, including tours of duty with the Company long before the events here involved. In the spring of 1969, Cox, while working at Jefferson Iron Works, learned from a fellow employee that work might be available at the Company Cox made arrangements with Jacob, the company foreman, and worked for the company on every weekday from Friday, April 25 through Monday, May 26, except for May 7, 13, 14, 16, 21, and 23.5 He also worked two Saturdays in that period, May 10 and 17. He did not work Saturday, May 24, and this is urged as one instance of discriminatory refusal of overtime because of Cox's nonmembership in the Union. After May 26, Cox's next day of work for the Company was Saturday, June 7 He did not work Sunday, June 8, and this is likewise urged as an instance of discrimination for nonmem- bership He next worked June 18 and 19, and claims discrimination in not getting additional overtime on the first of those days. Cox then worked June 26 and 27, but claims he was discnmmatonly denied weekend work on June 28 and 29. Cox worked regularly at the Company in the months of July, August, and September, including three Saturdays and four Sundays, and no discrimination is claimed in those months Early in October the Company stopped employing Cox, who claims he was denied work on October 7 because of his lack of union membership. Shortly thereafter, in mid-October, Cox stopped attempting to get work from the Company and found employment elsewhere 2. Contentions with respect to Cox General Counsel and Cox contended at the hearing that on several specified dates Cox was denied work because he was not a member of the Union.' The Company responded ' Cox was hired on every regular workday on which he sought work at the company from May through September ' in his brief General Counsel "concedes there are difficulties in establishing specifically which days Cox was denied overtime ," and urges that "the extent to which Cox has been discriminated against could be more properly handled in the compliance stage of this proceeding " Although in the ordinary case the procedure thus suggested by General Counsel would be appropriate , the record in the instant case permits of no such disposition The case was tried from beginning to end on the clear understanding , joined in by all parties , that only certain specific dates were in issue When company counsel at the outset of the hearing supplied a list of the dates in question , General Counsel volunteered (cont'd) 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that insofar as Cox complains of not receiving weekend work this was the result of a policy which favored permanent rather than irregular employees, and that the two remaining episodes of which Cox complains were also not related to his lack of union membership With respect to the weekend dates, Cox alleges that he was denied the opportunity to work on Saturday, May 24, Sunday, June 8, and on Saturday and Sunday, June 28 and 29 With respect to May 24, the record shows that Cox had worked for the company on Monday, Tuesday, and Thursday (May 19, 20, and 22) of that week. In the 3 preceding weeks he had worked 5, 4, and 2 regular workdays, respectively, and in the latter 2 weeks he had also worked on Saturday Jacob testified that although in hiring he gave preference to union members , in selecting for weekend work he gave preference to "regular" employees who had worked the full week In a pretrial affidavit dated July 17, 1969, Jacob stated that "pursuant" to the contract he hired "union men first for regular and overtime hours," and that Cox "would probably work more overtime if he was union." In a later pretrial affidavit dated November 25, 1969, Jacob stated, substantially as he did on the witness stand , "Once an employee is hired there is no distinction made between union and non-union men in the assignment of overtime " Company records show that among others who worked on May 24 were Carlton Hubbard and Anthony Paretti. During the week in question, Hubbard had missed work on May 21 and Paretti missed May 19 and 21. Both Paretti and Cox had worked 13 days in May prior to May 24; Hubbard had worked 15 days, including 9 consecutive days (including Saturday and Sun- day) prior to his absence on May 21 With respect to June 8, the record shows that Cox, who had not worked for the Company since May 26, was called to work on Saturday, June 7 Jacob testified that on that occasion he was a substitute foreman in the shop when a "last minute" job came up for which he had to recruit men. He further testified that the next day, Sunday, the regular shop men came to do the work, displacing' Cox, who was basically an "outside" and not a "shop" man. Cox, however, testified that when he left the job Sunday morning, Jacob said that if he were unable to have a union man he would call Cox back. After the weekend just discussed, Cox continued to work for another employer (except for Wednesday and Thursday, June 18 and 19, discussed below) until Thursday and Friday, June 26 and 27. He worked for the Company on those dates but alleges discriminatory denial of employment on the weekend, June 28 and 29. On that weekend overtime was worked by Daniel Hunt, who had been working all that week except for Thursday, and by Paretti, who had worked only Friday of that week, as well as by other employees who worked the full week. According to Cox, that two dates had been deleted, and then , in what he styled a "small correction," added one additional date When the Trial Examiner stated "what we are dealing here with obviously at the most is six days as far as Mr Cox is concerned," no one took issue with the statement On examining Cox, General Counsel stated " I will ask you to give your explanation of those dates that you have claimed I cannot on this record permit General Counsel now to expand the case into a claim of general discrimination against Cox he had been working on a particular ship, the Sue Lykes, that Thursday and Friday, but was denied work on the weekend although work continued on the ship. Jacob did not testify explicitly to this episode except to say that as Cox did not work the first 3 days of the week, he would not have been preferred for the overtime assignment. The two midweek occasions of which Cox complains of discrimination were Wednesday, June 18 and Tuesday, October 7. Cox worked for the Company on June 18 for the first time since June 7. According to Cox he was called to work on a ship that day, and at 1 a m. "they knocked [him] off " although work continued until 5 a.m Cox quotes Jacob as saying that the latter "would like to work [Cox] for the rest of the night but you don't have a union card" The next night Cox worked 8 hours for the company and Jacob "didn't mention anything about the overtime." Jacob in his testimony did "not remem- ber exactly what job it was but probably we had to reduce the crew is the reason why [Cox] did not work overtime that night " In that connection Jacob said that he would have given preference to men who worked the two preceding days in assigning overtime on that Wednesday. After fairly steady employment at the Company from mid-July through Thursday, October 2 (including three Saturdays and four Sundays), Cox was told that he was being laid off as no work was available. He reported for work without success from October 3 through 10 He contends that on October 7 a man was hired who "had been out to sea since March and he had not worked for [the Company] since March." Jacob testified that this man was hired as a helper , not as a journeyman, and that he was a seaman, "a good climber," whom Jacob needed to do "some rigging work on the booms " 3. Conclusions with respect to Cox Each of the six episodes as to which Cox complains stands on its own footing . In each separate instance the question is whether General Counsel established by a pre- ponderance of the evidence that Cox was denied work because of his lack of union membership. At least one piece of evidence is relevant to all six episodes, namely, Jacob's first affidavit which states that Jacob hired union men first for overtime and that Cox "would probably work more overtime if he was union." This, of course, is inconsistent with Jacob's later affidavit and his testimony, both of which state that once an employee is hired his union membership or lack thereof is not a factor in the assignment of overtime I must give due weight to the first affidavit, particularly as it was executed on July 17, 1969, close to the dates of the alleged discriminations. On the other hand, the generalization in the affidavit must be viewed in the light of the entire record, including the comparative regularity with which Cox received overtime once he became a full-time employee of the Company.' With respect to the weekend dates, the Company's posi- tion that it gave weekend work to those who had worked ' Cox worked two Sundays and one Saturday in the 3 weekends preceding his filing of the charge in this case BUCK KREIHS COMPANY the full week is substantiated by Cox's experience after he started to work regularly On the other hand, on two of the occasions complained of, May 24 and June 28- 29, the Company gave weekend employment to Paretti and not to Cox, although on the first occasion the two men had worked the same number of days per week, and on the second, Cox had worked more that week than had Paretti. In the light of this record and of Jacob's first affidavit, I find discrimination against Cox, in favor of Paretti, a union member, on June 28 and 29.8 As to May 24, the evidence is at best in equipoise concerning Cox and Paretti, and I find that General Counsel failed to prove prounion discrimination in the Company's hiring Paretti rather than Cox on that date The remaining weekend date, June 8, apparently involved a "shop" job, on which Cox was called on Saturday, June 7, in an emergency. His replacement by a "regular" on June 8 was not discriminatory, for Cox had not worked for the Company for 2 weeks, and was not basically a "shop" employee. Cox testified that Jacob said on that occasion: "If I am not able to have a union man, I will call you back." But even if Jacob said "union man," rather than "regular man" or "shop man," this would establish encour- agement of union membership in violation of Section 8(a)(1), but not discrimination violative of Section 8(a)(3), for on this record it seems reasonable to infer, as I do, that Cox would not have been employed on June 8 even if he had been a union member. As to the two midweek occasions, the evidence falls far short of establishing a violation on October 7. As to June 18, however, Cox quotes Jacob as saying, when he "knocked [Cox] off " that Jacob "would like to work me [Cox] for the rest of the night but you don't have a union card " Jacob had no independent recollection of the episode but simply assumed that he had to reduce the crew that night. On this occasion I find that General Counsel has established discrimination against Cox for want of union membership. Finally, General Counsel contends that even where Cox lost overtime because other men had worked regularly during the week, this was the indirect result of the Compa- ny's unlawful preference for union members. This argument, speculative at best, cannot be sustained on this record which establishes that during the period in question Cox would have been hired on any regular workday on which he applied. CONCLUSIONS OF LAW The Company, by discriminating in favor of union mem- bers at the time of hiring , and by denying employment on certain occasions to Cox because he was not a union member, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and 2(6) and (7) of the Act. The record shows that one Pannino, a nonmember of the Union, worked on June 28, but is silent as to whether he worked the full week THE REMEDY 623 I shall recommend an order directing the Company to cease and desist from its unfair labor practices and, affirma- tively, to post appropriate notices and to make Cox whole for earnings he lost because of the discrimination against him. More specifically, the Company should make Cox whole for its failure to employ him on June 28 and 29, and from 1 a in to 5 a.m on June 19. With respect to the latter date, however, any sum which Cox earned for any other employer during normal working hours on June 19 should be offset against the sum due him from the Company for that date Cox should be paid interest on any sums due him under the formula of Isis Plumbing & Heating Co., 138 NLRB 716. Accordingly, upon the foregoing findings and conclusions and upon the entire record in this proceeding, I recommend, pursuant to Section 10(c) of the Act, issuance of the follow- ing: ORDERS Respondent Buck Kreihs Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating in favor of union members and against nonmembers in the hiring of employees or in the assigning of overtime or other premium pay hours. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole Odie W. Cox, in the manner prescribed in the portion of the Trial Examiner's Decision captioned "The Remedy," for losses he sustained as a result of the denial of work to him on June 28 and 29, 1969, and between 1 a in and 5 a.m. on June 19, 1969. (b) Post at its premises in New Orleans, Louisiana, copies of the attached notice marked "Appendix "10 Copies of said notice, on forms provided by the Regional Director of Region 15, after being duly signed by Respondent's representative, shall be posted by it immediately upon 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 said notices are not altered, defaced, or covered by any other material. ' In the event no exceptions are filed as provided by section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and the Recommended Order herein shall, as provided in Section 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 '° In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order Of The National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." WE WILL pay Odie W. Cox for losses he sustained as a result of our failure to assign him certain overtime and weekend work in June 1969. " 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HEREBY notify all employees and all applicants for employment that we will hire employees and we will assign overtime or weekend work to employees without regard to whether they are or are not members of a labor union BUCK KREIHS COMPANY, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orle- ans, Louisiana 70113, Telephone 504-527-6361.