B-E-C-K- Christenson-Raber-Kief & Associates, Inc.

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B-E-C-K-Christenson-Raber-Kief & Associates, Inc. ORDER and Jethro Brown. Case 19-CA-5105 February 18, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 10, 1971, Trial Examiner Henry S. Salim issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions,' and to adopt his recommended Order. ' General Counsel urges that we find an 8(a)(1) violation in Respondent's failure to rehire Brown, relying upon Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516 While it is true that the Trial Examiner seemed to be limiting his considera- tion to the 8(a)(3) allegations of the complaint, it nevertheless seems clear that he credited Respondent's version of the facts, which was to the effect that it was Brown's record of quitting during a project which motivated Respondent in deciding not to rehire Brown, particularly for a job requiring transportation to a distant project Thus, if we accept his credibility resolu- tions, we must also find that no 8(a)(1) violation occurred, since the failure to rehire has been found to have been based upon valid business considera- tions While General Counsel has excepted to certain credibility findings made by the Trial Examiner, it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings The General Counsel has excepted also to the Trial Examiner's failure to correct the record in accordance with the General Counsel's unopposed motion to the Trial Examiner We hereby grant the motion and order the record so corrected Footnote 2 of the Trial Examiner's Decision is in error insofar as it indicates that the agreement between Respondent and Amchitka Crafts Council, Resp Exh 1, was applicable to Brown's 1969 employment with Respondent Finally, the letter of the U S Army Corps of Engineers to Brown was dated September 23, 1969, not 1961 as the Trial Examiner found 3 We disavow the Trial Examiner's reliance on Collyer Insulated Wire, 192 NLRB No 150 He appears to have assumed that Brown's August grievance related to the same subject matter as Brown's January charge filed with the NLRB This assumption is contrary to fact, since Brown's grievance related solely to his wage claims during his previous period of employment Member Jenkins would not in any event defer to the grievance procedure, for the reasons set forth in his dissenting opinion in Collyer, supra 195 NLRB No. 95 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S SAHM, Trial Examiner: This proceeding, heard at Anchorage, Alaska, on May 27, 1971, pursuant to a charge filed the preceding January 22 and a complaint issued March 9, presents the question whether Respondent herein, called the Company, violated Section 8(a)(3) for refusing to hire Jethro Brown on December 23, 1970, because when he was formerly employed by the Company he filed a grievance with his Union and with the Army Corps of Engineers claiming he was underpaid, and he also filed a charge with the U.S. Equal Employment Opportunity Commission alleging em- ployment discrimination in violation of the Civil Rights Act of 1964. Upon the entire record and consideration of Counsels' ar- guments, including the briefs of the parties and citation of cases claimed to be dispositive of the issues in this case, and from observation of the demeanor of the witnesses, there are hereby made the following. FINDINGS OF FACT' I BUSINESS OF THE RESPONDENT The Company, a joint venture, is engaged in the general contracting business. It is one of the contractors at the Am- chitka Island, Alaska, Test Site of the Atomic Energy Com- mission. Annually, the Company purchases and receives from sources outside Alaska for use in Alaska goods and supplies valued in excess of $50,000. Upon the foregoing admitted fact, it is found that B-E-C-K-Christenson-Raber- Kief & Associates, Inc., is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III ALLEGED UNFAIR LABOR PRACTICES A. Brown is Refused Employment Brown was employed by Respondent Company from June 9, 1969, through July 25, 1969, on Amchitka Island, Alaska Before the project on which Brown was working was com- pleted, he voluntarily quit his job When he returned to An- chorage, he complained to his union, Local 341 of the Labor- ers, herein called the Union, claiming he was "shorted" on actual hours worked and also that he was underpaid by the Company in that he was paid asphalt-raker's pay instead of the scale provided for a screed-man's work, which he con- tended he was entitled to under the terms of a collective- ' In resolving the disputed issues , where no mention is made of certain evidence introduced by the parties , it is not because consideration was not given to such evidence , but rather because it is regarded as insubstantial in character or unsupported by a preponderance of credible evidence or im- material to deciding the salient issues in this case See Jackson Maintenance Corp, 126 NLRB 115, 117, fn 1, Bishop & Malco, Inc, 159 NLRB 1159, 1161 B-E-C-K-CHRISTENSON-RABER-KIEF & ASSOCIATES 469 bargaining agreement between said Union and the Com- pany.' Brown also complained on August 1, 1969, to the Army Corps of Engineers alleging he was hired as an asphalt raker but performed as a screed-man receiving , however, the basic hourly wage rate of $6.39 rather than the higher screed-man's scale of $7.74 per hour.' By letter dated September 23, 1961, the Engineers notified Brown that his claim was disallowed as there was no violation of the contract labor standards. The complaint made by Brown was submitted on August 4, 1969, by his Union to the Board of Conciliation established under the provisions of the Alaska Master Labor Agreement. By decision dated February 16, 1971, the Board found against Brown on his claim that the Company had shorted him on the hours he had worked but held that Brown had performed the work of a screed-man and should have been paid the higher scale The Company was ordered to pay Brown $184.24, which it did By letter dated October 8, 1970, Brown was advised by the Equal Employment Commission that the Commission had no jurisdiction over his charge of employment discrimination which he alleged to be in violation of the Civil Rights Act of 1964 B. The Company's Version The Company Respondent admits it refused to hire Brown on December 23, 1970, when he was referred by the Union for a job on Amchitka Island, stating that during his previous employment by them in 19641 and 1969 Brown's performance of duties was not satisfactory and in 1969 he quit the job without notice during the final weeks of the project, thereby causing a shortage in crew manning and a subsequent in- crease in overtime.' Brown, on December 23, 1970, also com- plained to the Alaska State Legal Services Association, which represents low income clients for no fee, which instituted a charge before the State Human Rights Commission on his behalf, alleging that Respondent refused to hire Brown be- cause he is a Negro. On January 22, 1971, Brown filed with the Board a charge against Respondent alleging he was refused employment because he "engaged in protected and concerted activities," which eventuated in a complaint being issued on March 19 and a hearing held on May 27 Alaska Master Labor Agreement, 1969-1972, GC Exh 2, Agreement between Company and Amchitka Crafts Council, Resp Exh 1 It appears that all screed-men come within the referral jurisdiction of the Operating Engineers Union The Company alleges that when Brown left its employ in 1964 he was arrested by the police for intoxication, which Brown denied Brown's testimony is not credited that Parker, the Company's Anchor- age manager, told him when he was referred by the Union on December 23, that the Company would not hire him because of the various charges he had instituted against it It strains one's credulity to believe that Parker, a Com- pany official for 15 years, and evidently versed in employment practices and industrial relations, would be so incredibly naive and inane as to senselessly compromise his company with the admittedly damaging statement to Brown that its refusal to hire him was because of the lawsuits and charges he had instituted against the Company Parker's version is credited that he told Brown when he refused to hire him that his previous employment record with the Company was unsatisfactory Moreover, Parker's testimony that he immediately telephoned Lee, the Union's president, and informed him that he had refused to hire Brown because he was not satisfactory on his last job and requested him to refer another man, stands uncontradicted on the record Discussion and Conclusions The evidence here is devoid of any credible discriminatory reason for Respondent's refusal to hire Brown. There is no basis in the record for concluding that Brown was refused employment for proscribed reasons. In this proceeding, the bare recital of the facts is sufficient to show no discriminatory conduct within the meaning of Section 8(a)(3) of the Act. The Union's president, Ray Lee, when told by Brown on Decem- ber 23 that he had been refused employment by Parker, did nothing at that time other than to refer another man to Respondent. However, Parker, Respondent's Anchorage manager, immediately advised Lee on December 23, that Brown was ineligible for rehire and the same day wrote a letter to the Union explaining the reasons why Brown was not hired. See also General Counsel's Exhibit 7. Also, on the same day, when an official of the State Human Rights Com- mission telephoned Parker in regard to Brown's charge of race discrimination, Parker told him that Brown had not been satisfactory on his last job. The job that Brown applied for on December 23 involved a project of the Atomic Energy Com- mission on Amchitka Island which requires all applicants to be screened, undergo an investigation, and receive a security clearance.' The costs entailed in the security, physical, and psychological processing of a person to be sent for employ- ment to Amchitka costs approximately $600. In addition, there is provided one-way transportation of $175 from An- chorage to Amchitka, plus 8 hours' pay for filling out the security papers and also 8 hours' travel time pay which amounts to an additional $106 The cost of a replacement in the event Brown proved unsatisfactory on the job to Re- spondent, the General Contractor, or the Government would amount to approximately $880, which does not include re- turn transportation from Amchitka Island to Anchorage, for all of which Respondent was financially responsible. This necessarily required caution and care on Respondent's part as to whom they selected for employment on Amchitka. These uncontroverted facts, supra, confirm Parker's cred- ited testimony that his reasons for refusing to hire Brown were due to his former employment record which was un- satisfactory and not for proscribed reasons. The refusal to employ Brown, based on legitimate and substantial business justifications, constituted a lawful exercise of managerial right and prerogative. The Supreme Court, in one of the first Labor Board complaint cases it decided, stated: The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with re- spect to their self-organization and representation, and on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for reasons other than such intimidation and coercion.7 In order to find an 8(a)(3) violation with respect to Brown, it would be necessary, among other factors, to hold, under the circumstances here revealed, that his being refused employ- ment for ostensibly valid reasons as evidenced by the credited testimony specified above and below is not a management prerogative but rather was intended to discriminate against him. Fundamental economic concepts would decry such a concept as administrative arrogance What was said by the Court of Appeals for the Fifth Circuit is particularly perti- nent in this regard. See Article XIII and XIX of the Maintenance Agreement Resp Exh 1 ' NLRB v Jones & Laughlin Steel Corp, 301 U S 1, 45-46 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But as we have so often said: management is for manage- ment. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, for bad cause, or no cause at all. It has, as the master of its business affairs, complete freedom with but one specific definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids ... The employer does not enter the fray with the burden of explanation. With discharge of employees a normal, lawful legitimate exercise of the prerogative of free management in a free society, the fact of discharge creates no presumption, nor does it furnish an inference that an illegal-not a proper-motive was its cause. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence toward the lawful one.' Moreover, there is evidence that the Company and Union's relationship has been mutually beneficial and harmonious. Henry Hedberg, a Union official for 19 years, presently Secre- tary-Treasurer of Local 341 of the Laborers Union and for- merly president and business agent, testified on cross-exami- nation, when called as a witness by the General Counsel, that Respondent's relationship with the Union is excellent and he described the Respondent Company as "one of our better contractors." Furthermore, this litigation was the first time in 10 years of Respondent's existence that it has ever been accused of committing an unfair labor practice and this was the first grievance filed against them with the Board of Con- ciliation. See above. Richard Egge, one of the owners and partners of Respondent, testified that Respondent has never had any labor difficulties of any kind and he characterized the Company's relationship with Alaska unions as "very good," stating that they have "an affirmative action" program which has been characterized by the Atomic Energy Commission as "the best"' in Alaska. In addition, testified Egge, they have a minority program headed up by a Negro and they have ac- tively recruited minority trainees and employ a black subcon- tractor on their job at Amchitka. Recently, Egge stated, the Government awarded his Company a contract at Great Falls, Montana, "because we had the best affirmative action pro- gram" even though " ... we were not low bidder." The Board and the Courts, in other cases where it has been found that a respondent has committed unfair labor prac- tices, have considered a respondent's animus or hostility to- ward union and/or protected activities. Evenhanded justice would require that where there is not a scintilla of evidence produced by the General Counsel to show such antiunion bias, as here, this factor should be considered in evaluating whether the Respondent in this proceeding has committed any unfair labor practices. There is no such evidence in the record of this case to support such a conclusion This proba- tive and significant factor also casts doubt upon the meagre, if any, evidence to substantiate the General Counsel's conten- tions that Brown was refused employment because of his "protected and concerted" activities. In addition, there is lacking another crucial element-independent evidence of antiunion motivation which is essential to finding a prima 8(a)(3) of the Act.' Therefore, upon the record as a whole, it is found that the General Counsel has failed to sustain his burden of establishing by a fair preponderance of substantial creditable evidence that the Respondent discriminatonly refused employment to Jethro Brown. The Board's recently issued decision on August 23, in the Collyer Insulated Wire case, 192 NLRB No. 50, ruled by a three-to-two vote that since the dispute giving rise to the alleged unfair labor practices was cognizable under the con- tract's grievance and arbitration provisions the Board would leave the resolution of this dispute to the procedures provided by the contract. The Board accordingly dismissed the com- plaint. The majority opinion states: . [W]hen the parties have contractually committed themselves to mutually agreeable procedures for resolv- ing their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to function ... the board's authority, in its discretion, to defer to the arbitration process has never been questioned by the Court of Appeals, or by the Supreme Court. The instant case is an a fortiori situation, as no arbitration proceedings had been instituted in the Collyer case before the case came to the Board whereas in this case Brown's Union filed a grievance with the Board of Conciliation on August 8, 1970, but it was not until January 22, 1971, that Brown filed a charge with the National Labor Relations Board The Board in the past has also dismissed a complaint where the charging party has concurrently utilized arbitration proceed- ings and Board processes for the purpose of litigating his dispute." It is found, therefore, that the adjudication of the com- plaint herein should be eschewed in deference to the griev- ance procedures to which the Union and Respondent Com- pany have contractually obligated themselves to "full cooperation" in settling all grievances. Moreover, to adjudi- cate this dispute might be tantamount to an oblique vitiation of the grievance procedure itself in that it would serve as a rallying point as well as an alternative forum for litigants who would be encouraged thereby to fit another arrow to their bow by concurrent recourse to Board processes rather than adhering to the contractually agreed-upon grievance proce- dures Furthermore, if the parties are required first to exhaust their rights under the grievance procedures as a condition of obtaining a Board determination, this might eventuate, in many instances, in the aborting of incipient unfair labor prac- tice proceedings. It would seem, therefore, and the Board has so held, that if the dispute is referable to the agreed-upon grievance machinery, a charge or complaint should not issue until that procedure has been exhausted." Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER The complaint is dismissed in its entirety. facie case of discrimination within the meaning of Section ' Economy Stores, Inc, 120 NLRB 1, 8, Schwob Manufacturing Co v NLRB, 297 F 2d 864 (C A 5) 10 Timken Roller Bearings Co, 70 NLRB 500, 501 ° NL R.B. v McGahey, 233 F.2d 406, 412-413 (C A 5) Accord " CollyerInsulated Wire, supra Crown Zellerback Corp, 95 NLRB 753 NL R B. v Ace Comb Co, 342 F 2d 841 (C A 8) United Telephone Co, 112 NLRB 779, 781