Laborers, Local 832

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Local 832, AFL-CIO (Bechtel Corporation) and James G. Dyson. Case 5-CB-1108 November 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 22, 1971, Trial Examiner Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in connection with this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, and to adopt his recom- mended Order. ORDER Musicians, 153 NLRB 68, 81-84 (1965). He noted that numerous Board decisions pointed to the conclusion that not every union interference with the employ- ment relationship can be inferred to have the intent or effect prohibited by Section 8(a)(3), and tentatively concluded that the test may be whether "the stated objective of the union's conduct [is] so arbitrary, invidious or irrelevant as to indicate that it is a mask for encouraging membership or membership regulari- ty-" He also pointed out that while this may be the proper test "the Board has never seen fit to discuss the subject." Because I am not prepared to find the Union's desire to honor the late Dr. King to be so arbitrary,' invidious, or irrelevant as to indicate that it was used as a mask for the hidden objective of encouraging or discouraging union membership, I am not ready to rush to the unrationalized conclusion that a violation of our Act occurred here. If there is some other more satisfactory basis for finding the violation, it does not appear in the Trial Examiner's decision or in my colleagues'pro forma adoption of his conclusions. For these reasons, I respectfully enter this dissent. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Laborers' International Union of North America, Local 832, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting: I agree the Union sponsored and encouraged a policy acquiesced in by management that employees need not work on Dr . Martin Luther King's birthday. I also agree that the Union caused employee Dyson to be discharged for working on Dr. King's birthday. I am also inclined to the view that this was harsh treatment for a man whose only offense was to have no personal feeling of compunction about working on the day in question. But the issue before us is not the broad one of whether the discharge, under all of the circumstances, was fair or unfair. The statute directs and authorizes us only to decide whether the Union caused the Employer to discriminate against Dyson "to encour- age or discourage membership in" the Union. The Trial Examiner's Decision, which is adopted by the majority herein , does not supply a rational basis for such a conclusion. The issue is a troublesome one. In a very thoughtful decision, Trial Examiner Harold X . Summers ex- plored it in some depth in Chicago Federation of 194 NLRB No. 66 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on January 22, 1971, by James G. Dyson, an individual, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel, issued his complaint dated March 30, 1971, against Local 832, Laborers' International Union of North America, AFL-CIO, hereinafter referred to as Local 832 or the Respondent. The complaint alleged that the Respon- dent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. The Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing was held before the Trial Examiner in Washington, D.C., on June 2,197 1. All parties appeared at the hearing, were represented by counsel, and were afforded a full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and relevant to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from both parties on June 30, 1971. Upon the entire record in the case and from my observation of the witnesses, I make the following: LABORERS, LOCAL 832 387 FINDINGS OF FACT 1. THE BUSINESS OF THE BECHTEL CORPORATION The complaint alleged, the answer admitted, and I therefore find: The Bechtel Corporation is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of California. Bechtel Corporation is engaged throughout the United States in the business of constructing power plants, including a plant at Morgantown, Maryland. The corpora- tion annually receives goods and materials valued in excess of $50,000 directly from points outside the State of Maryland. Accordingly, I find that the Bechtel Corporation is now, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE RESPONDENT Local 832 is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Bechtel Corporation, hereinafter referred to as Bechtel, was engaged by the Potomac Electric and Power Corporation, hereinafter referred to as Pepco, to construct a power plant at Morgantown, Maryland. In performing its contract with Pepco, Bechtel employed members of the Respondent including James Dyson and Larry Burton who were members of a sister local, Local 74, of the Laborers Union. During the 3 years that the Pepco job has been in progress, there has been a tacit agreement between Bechtel and Respondent which allows those members of Local 832 who wish to observe Dr. Martin Luther King's birthday as a holiday to do so. According to the testimony of John Willett, the Respondent's president and business agent, this policy has been completely voluntary, although most of the Respondent's members have refrained from working. This agreement with respect to Dr. King's birthday was in effect on January 15, 1971.1 Respondent's members were informed on either January 13 or 14 that there would be no work on Dr. King's birthday, January 15. The workers received their pay on January 14. On January 15, Dyson, who had been employed on the project practically from its inception, returned to the Morgantown jobsite to obtain a set of "knee pads" which he intended to use for a personal project.. Upon arriving at the jobsite, Dyson was asked by Walter Johnson, Bechtel's general superintendent at the Morgantown job, if he would work that day with the carpenters who were at work. Dyson agreed and worked a full 8 hours. The next day, Saturday, January 16, all of the workers, including Dyson, returned to work. Shortly after 9 o'clock that morning Earl Yates, shop steward for Local 832, learned that Dyson had worked on Dr. King's birthday. Yates questioned William Gross, Dyson's foreman and nephew, and asked him if he was aware that Dyson worked on January 15. Gross denied having any knowledge. Yates, after learning about Dyson's working on Dr. King's birthday, called Willett for the alleged purpose of having Willett assist Calvin Campbell, the general labor foreman and member of Local 832, in delivering a safety lecture on Monday. In this conversation Yates informed Willett that Dyson had worked on Dr. King's birthday. On Monday, January 18, Campbell delivered his lecture and terminated it with the caveat that "if you continue [to violate the safety rules] somebody is going to be fired for it." After the safety lecture had ended, Willett asked all the labor foreman to meet at the labor shed for a general meeting. Willett testified that Clayton Day, a labor foreman, William Gross, Campbell, and another foreman were present at this meeting. After discussing some of the safety problems, the discussion turned to Dyson's having worked on Dr. King's birthday. Some of the foremen present expressed their resentment at Dyson's working while others were indifferent. Eventually Dyson was sent by Foreman Gross to talk to Willett, who told Dyson that he was to be laid off as of 3 o'clock that afternoon, January 18, because he had worked on Dr. King's birthday. Dyson was in fact laid off but about a month later, upon learning that Dyson had filed charges against Respondent, Bechtel promptly had Respondent reinstate him to his former position on the Pepco job. B. - Respondent's Argument The Respondent asserts that it did not violate any of the proscriptions of the Act and claims the weight of relevant evidence adduced at the hearing supports its position. The Respondent further contends that there was no union policy for punishing a member for working on Dr. King's birthday. In support of this proposition the Respondent relies on the testimony of Willett and the fact that two other employees, "Joshua" and Larry Burton, had worked on Dr. King's birthday without reprisal. The Respondent also attempts to support its position by Willett's testimony with respect to the fact that Joseph Taylor, a former member of Local 832's Executive Committee and presently one of its auditors, had a history of working on Dr. King's birthday but, nevertheless, is still a member of Local 832 and holds a responsible position therein, i.e., an auditor. Secondly, the Respondent contends that the decision to lay off Dyson and other Respondent' s members on January 18 was made by Johnson, Bechtel's general superintendent, because the Morgantown project was nearing completion. In support of this contention the Respondent relies on the testimony of John Willett and Calvin Campbell. The Respondent alleges that the reduction in the labor force was a decision that was, and indeed could only be, made by management. The Respondent further relies on the statement on the check Dyson received on Monday, 1 Unless otherwise stated all the dates referred to in this decision are in the year 1971. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 18, to the effect that his layoff was part of a reduction in force. C. General Counsel's Argument The General Counsel contends that Dyson was laid off for refusing to adhere to the union policy of not working on Dr. King's birthday. In support of this contention, the General Counsel relies on the testimony of both Dyson and Gross who testified that they were told either directly by Willett and/or Campbell or inferentially by Yates and/or Smoot, the acting shop steward, that Dyson was being laid off for working on Dr. King's birthday. The General Counsel apparently concedes the fact that there was no union policy of punishing people who chose to work on Dr. King's birthday. The General Counsel also does not challenge the fact that the project was nearing completion and therefore required fewer workers. The crux of the General Counsel's position is that Dyson's layoff, occurring as it did, shortly after the time when other members refused to work and contrary to the normal procedures in these matters demonstrates that Dyson was discriminatorily laid off. D. Conclusions Many of the facts of this case are not in dispute. From the testimony of the witnesses and on the record as a whole it is clear that there was an informal policy with respect to the observance of Dr. King's birthday by the members of Local 832, i.e., they were excused from working on that day. It is clear that Dyson did work on Dr. King's birthday at the request of Walter Johnson and was laid off on January 18. The sole issue to be determined therefore is whether Dyson was laid off because he worked on January 15 or whether he was laid off, as the Respondent contends, i.e., (1) because of a reduction in force, or (2) because he violated the applicable safety rules, or (3) because he was a nightman and as such should have been laid off prior to the 18th of January. Thus stated the case evolves into a determination of credibility. The testimony of the witnesses and the record on the whole substantiates the fact that the Morgantown job was nearing completion and that some layoffs were inevitable. John Willett, the Respondent's president and business agent, testified that he was notified by Walter Johnson on or about the 7th of January that there would be a reduction in force. According to Willett's testimony, Johnson told him at that time that "Dyson and the concrete crew" would be laid off, although Johnson did not state when this layoff would occur. Considering the demeanor of the witness and the record as a whole I do not credit Willett's testimony in this regard. Calvin Campbell, the general labor foreman, testified on cross-examination that ordinarily Bechtel would notify him that there was going to be a reduction in force and that he would then notify individual foremen, to lay off a specific number of men-not specific individuals. The choice, of which individuals to lay off was left to the particular foreman. William Gross, Dyson's foreman, verified this procedure. The record is void of any plausible reason for Johnson to depart from this procedure, and I therefore find it very unlikely that he did. However, if Dyson's and Gross' testimony is truthful, which I believe it is, then Dyson's discharge in violation of established procedure becomes understandable. Dyson credibly testi- fied that Willett told him he was going to be laid off because he worked on Dr. King's birthday. Gross credibly testified that he was told by Campbell that Dyson was to be laid off for working on Dr. King's birthday. Dyson's discharge in violation of Section 8(b)(1)(A) and (b)(2) of the Act therefore provides a reason as to why the established layoff procedure was not followed. The Respondent, however, attempted to prove through the testimony of Willett and Campbell that established procedure was not adhered to in this case because Dyson was a nightman and had violated safety regulations. The Respondent argues that this is the reason Dyson was singled out by Bechtel-not the Union-to be laid off. The Respondent's allegation that Dyson was laid off for violating safety regulations is without substance since the record is totally void of any evidence on this matter. Willett and Campbell testified that Dyson had been seen leaning "over the rail" of the elevator. Neither Willett nor Campbell observed this activity and, considering their demeanor and other contradictory testimony, I do not credit them in this regard. Assuming, arguendo, that Johnson did have his alleged conversation with Willett concerning a future layoff, Johnson is reputed in having ordered Dyson's discharge by name because he was a nightman and had violated safety regulations, i.e., leaning over the rail of an elevator. While the record is not clear with respect to whether or not Dyson was a nightman,2 certain facts in the record indicate that he was not a nightman at the time of the discharge and that Johnson knew that he was not. Dyson reported to work on Saturday morning, January 16. It is unlikely that he would have reported at this time had he not been working days. He also reported to work on the morning of January 18, the day he was laid off. Furthermore, Campbell testified on redirect examination that during the week of January 11 Dyson had been working days following the layoff of the other then nightman. These facts would appear to indicate that Dyson was, in fact, a dayman. These facts considered with the fact that Johnson must have known which men were working which shifts clearly indicates that he knew Dyson was working days .3 Furthermore the other nightman had previously been laid off but Dyson remained employed working the day shift. The General Counsel, at the close of his case, had established a prima facie violation of the Act by the Respondent .4 The burden of proof, therefore, shifted to the Respondent. The thrust of the Respondent's defense is that Dyson was laid off because of a general reduction in force and his job, 2 Dyson first testified that in January 1971, he was a nightmare but later Company's general superintendent to possess such knowledge. stated that he was not a mghtman on January 18, 1971, the date he was 4 In determinmg that the General Counsel had established a prima facie laid off. case, I have not considered the confused testimony with respect to Dyson's 3 1 do not feel that this assumption is unwarranted. I would expect the status. LABORERS, LOCAL 832 i.e., a nightman, was eliminated . It was, therefore, incumbent upon the Respondent to establish that Dyson was in fact a nightman and that his job had been eliminated . While the Respondent did address itself to this task, it failed to explain why, if Dyson was a nightman, he reported to work on the mornings, at least of January 16 and 18. Walter Johnson, who had been requested by the Respondent to testify, and whose testimony could have all but been determinative in this case failed to appear. Furthermore, the Respondent at the beginning of the hearing termed Johnson, "essential to its defense," but withdrew its motion in respect to compelling Johnson to testify. The Respondent also failed to introduce into evidence any documents , such as timecards, which would have resolved the issue of Dyson's status. This type of evidence was readily accessible to the Respondent. The Respondent's failure to furnish this type of evidence must be construed to work to the detriment of its defense. The Respondent also sought to demonstrate that the decision to lay off the six specific individuals who were terminated on January 18 was made by Johnson. In support of this contention Respondent sought to establish, through the testimony of Campbell, that Johnson had made up the list of names of people to be laid off. Campbell testified that Johnson had a conversation with him a week before the layoff occurred and at that time Johnson had a list of the people to be laid off. Campbell stated that he did not see this list, however, until January 18, the day of the layoff. At that time, according to Campbell, he showed the list to Earl Yates who made a copy of it. Yates, however, was unable to produce his alleged copy of the list at the hearing claiming that he had left it home. Yates then testified on direct examination that the concrete crew and Dyson were listed by Johnson as those to be laid off-a total of four men. Later, Campbell stated that Johnson's list contained six names, one of which was Oscar Smoot, the assistant shop steward of Local 832 . In sum, therefore, it was Campbell's testimony that Smoot was named, along with the other five people, by Johnson, contrary to past established practice, to be laid, off. However, on recross-examination, Campbell argued that Johnson did not put Smoot's name on the list and that Gross, Smoot's foreman, actually made the decision to lay Smoot off. Considering Campbell's demeanor and contradictory testimony, I cannot credit his original testimony. I do not believe that Johnson departed from past practice and prepared a list of people to be laid off. This conclusion is strengthened by the uncontradicted testimony of Gross, whom I credit, with respect to when he was advised of the number of people to be laid off. According to Gross' testimony, he was notified by Campbell at approximately 9 o'clock on the morning of January 18, soon after the foremen 's meeting with Willett at the labor shed, that Dyson alone was to be laid off. If there were a list of people who were to be laid off and Smoot and Dyson's names were on that list, as Campbell testified that they were, then logically Campbell should have told Gross at 9 o'clock that both Dyson and Smoot were to be laid off, since both men were in Gross' gang. However, this did not 389 occur. Gross did not learn about Smoot's layoff until 12 or 1 o'clock that afternoon. The testimony of the various witnesses and the record as a whole leads me to conclude that Dyson was laid off by Willett and the union foreman because he was the only member of Local 74 who was not required to work on Dr. King's birthday but did so. The established procedure regarding layoffs and Camp- bell's demeanor and contradictory testimony lead me to conclude that no list existed and that Dyson's discharge was ordered by Willett. This conclusion is further strengthened when it is considered that Dyson was rehired at the special request of Bechtel almost immediately after the Company had received notice that Dyson had filed a charge with the Board. John Willett testified that Dyson had no special skills but, of the six men who were laid off on the 18th, only Dyson was rehired by Bechtel at Pepco. The Respondent also attempted to show that there was no union policy for punishing people who worked on Dr. King's birthday. In support of this argument, the Respon- dent elicited through the testimony of John Willett, James Dyson, William Gross, and Earl Yates, that no such policy existed and that several people had worked on Dr. King's birthday without being disciplined. The Respondent established through credible testimony that Larry Burton, a member of Local 74, worked on Dr. King's birthday in January 1971, and was not discharged. However, John Willett testified that Burton had to work that day because he was in charge of the labor shed . The Respondent also established that Joe Taylor, a member of the Respondent's executive committee, had worked on Dr. King's birthday in 1970. The Respondent contends that this fact and the fact that Taylor was not fired but was in fact promoted to the executive committee clearly demonstrates that there was no union policy to punish people who worked on Dr. King's birthday. However, I find this argument unpersuasive since Taylor is a member of Local 832 while Dyson is a member of Local 74 and because Taylor worked in 1970 and Dyson in 1971 . All the Respondent has proved is that there was no policy of punishing members of Local 832 who worked on Dr. King's birthday in 1970. There is evidence in the record that another person, known as "Joshua," worked on January 18. However it appears from the record that he was a member of the Plumbers Union. Therefore, this evidence is not probative of the issue. The testimony of the witnesses in this case and the record as a whole convince me that James Dyson was discharged for failing to engage in union activity and not as the Respondent contends. I therefore find that the Respondent has violated Section 8(b)(1)(A) and (b)(2) of the Act.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Bechtel's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes 5 Minneapolis Star & Tribune Co, 109 NLRB 727, cited with approval in Scofield v. NLRB., 394 U.S. 423 (1969) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of James G. Dyson by discharging him on January 18, 1971, I will recommend that Respondent make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of his reinstatement less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Seafarers International Union, 138 NLRB 1142, with interest thereon at 6 percent per annum. Because of the type of the unfair labor practices engaged in by Respondent, I sense an opposition by Respondent to policies of the Act and I deem it necessary to order Respondent to cease and desist from in any like or related manner interfering upon the rights guaranteed its employ- ees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By threatening and causing James Dyson to be laid off from his job at Morgantown, Maryland, because he refused to engage in union activity and for a reason other than the nonpayment of dues, the Respondent Local 832 violated Section 8(b)(1)(A) and (2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 6 ORDER Respondent, Local 832 of the Laborers' International Union of North America, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening and/or causing James G. Dyson loss of employment for his alleged failure to engage in union activity. (b) In any like or related manner interfering with the employment of James G. Dyson. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Make James G. Dyson whole for any loss of earnings that he may have suffered by reason of his loss of employment on January 18, 1971, in the manner set forth in "The Remedy." (b) Preserve and make available to the Board, or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its union hall in LaPlata, Maryland, and at the Pepco construction project at Morgantown, Maryland, copies of the attached notice marked "Appendix." 7 Copies of the notice, on forms provided by the Regional Director for Region 5, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith .8 6 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 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. 7 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." 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 5, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our members or members of any other labor organization in the exercise of the rights to engage or to refuse to engage in union or other protected activity. WE WILL NOT threaten, discharge, cause to be discharged or threaten to discharge James G. Dyson, or interfere in any way with his employment. WE WILL make James G. Dyson whole for any loss of earnings that he may have suffered by reason of his loss of employment on January 18, 1971. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 832, AFL-CIO (Labor Organization) 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 LABORERS, LOCAL 832 391 from the date of posting and must not be altered , defaced, its provisions, may be directed to the Board's Office, or covered by any other material. Federal Building, Room 1019, Charles Center, Baltimore, Any questions concerning this notice or compliance with Maryland 21201, Telephone 301-962-2822.