Operating Engineers Local No. 369

OPERATING ENGINEERS LOCAL NO. 369 643 International Union of Operating Engineers, AFL- CIO, Local Union No. 369 (T. E. Akers & Compa- ny) I and William H. Bishop. Case 26-CB-681 FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED October 10, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 23, 1972, Administrative Law Judge 2 Lloyd Buchanan issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's excep- tions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. 1 Name appears as amended at the hearing. 2 The tide of ""real Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint here- in (issued March 24, 1972; charge filed February 1, 1972), as amended, alleges that the Union has violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, 73 Stat. 519, by causing or attempting to cause the Company to discharge its employee, William H. Bishop, discriminatorily and in violation of Section 8(a)(3) of the Act. The answer denies the allegation of violation. The case was tried before me at Nashville, Tennessee, on May 11 and 12, 1970. Counsel were heard in oral argu- ment at the conclusion of the trial. Pursuant to leave grant- ed to all parties, a brief has been filed by the Union. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: It was stipulated and I find and conclude that T. E. Akers & Company is a corporation with an office and place of business in Nashville , Tennessee, where it is engaged in general construction work. During the past 12 months, in the course and conduct of its business operations , the Com- pany had a gross volume of business in excess of $1 million and during the same period of time it purchased and re- ceived in the State of Tennessee goods and materials valued in excess of $25,000 directly from points located outside the State of Tennessee, and purchased goods valued in excess of $50,000 from distributors who, in turn, purchased and received said goods directly from outside the State of Ten- nessee; that the Company is a member of the Associated General Contractors of Nashville, Tennessee, a multiem- ployer group which negotiates labor agreements with con- struction trade unions in the Nashville, Tennessee, area; and that the Company is a negotiating member of the Asso- ciated General Contractors of Nashville and, that an officer of the Company, Robert Akers, negotiates with trade un- ions on behalf of the Associated General Contractors. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(bx2) AND S(bXIXA) A general relationship and practice are not here in issue: The issue is actual causation or attempt to cause Bishop's discharge, as alleged ; and the alleged violation of Section 8(b)(1)(A) is admittedly derivative only. Finding of violation depends on proof of union action against Bishop vis-a-vis the Employer, the Akers company, and with union animus to the extent that it might support or help interpret any action taken. Opryland Contractors, Inc., has been the general con- tractor on the Opryland construction project in Nashville, Tennessee. One of the subcontractors since November 1971 has been T. E. Akers & Company, the Company herein. Bishop, a young heavy-equipment operator and a member of the Union since 1968, was employed at the site for some time in April 1971. Douglas, the Union' s assistant agent and vice president, assigned him to work on this site in Decem- ber 1971. Whether Bishop was sent out to Akers or to an- other subcontractor does not appear to be of great moment; he did go to work for Akers on December 17. Although Bishop told us that he was the only operating engineer employed by Akers on December 31 and that he was not laid off, both Robert Akers, president of the Akers Compa- ny, and Bray, the Company's project manager at this site, testified that all operating engineers were laid off on De- cember 31. According to Bray, Opryland had asked the Akers company to put Bishop on the Akers payroll; but Bishop worked with the Opryland crew and under its direction. This circuitous arrangement may explain why Bishop was not notified of the general layoffs of engineers on December 31 and also why Douglas did not know that Bishop was on 199 NLRB No. 90 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Akers payroll in December. Gilliam, foreman on the job and a member of the Union, also testified that he thought that Bishop had been working for another contractor. Like so much else that was brought out, none of this bears on the issues before us; but it does at least serve to avoid what might otherwise be invidious reflections on credibility. Bray, who was called by the General Counsel and ap- parently did not favor either the Company or the Union in this case, told us that on December 28 Burke, Opryland's maintenance manager, called a meeting of representatives of the various subcontractors and told them that operating engineers would be laid off on December 31 and that they would thereafter be reemployed by other subcontractors, the purpose being to eliminate the need for a general fore- man on the site. Gilliam had been the foreman. Subsequent- ly, a few days after January 4, when, as we shall see, several operating engineers went to work for Akers, Burke at an- other meeting declared that there had been a great deal of confusion and that he was making Gilliam, although on the Akers payroll,' the operating engineer foreman and coor- dinator of all operating engineers other than those working for one of the subcontractors. With the rearrangement of employment of operating engineers impending, Bray on December 30 called Douglas and asked for four engineers by name to report to Akers on January 3. Bishop was not among those so named. The four arrived on January 3 but refused to work because the Com- pany had not signed a contract with the Union. After another employee, Williams, asked Bishop whether he was going to work that day and suggested that he call Douglas (this will be referred to below), Bishop did make the call and was told by Douglas that the men were not to work for the Company until the Union had a health and welfare agreement. We digress for a moment to note that, Bishop being available, Bray and Douglas agreed to send him to the Union for a copy of the proposed agreement which the Union wanted signed, Bray stating that he would sign it. At this point Bishop injected what appeared at the moment to be a cloak and dagger hunt for Bray at the union office, suggesting that Douglas was avoiding him. According to Bishop, Douglas was plainly angry or annoyed because Bishop, although not working, had remained at the jobsite. Douglas' version is that he did not give Bishop a copy of the agreement to be signed because Bray had called again and said that he would come to the union office to sign it. Bishop was here unwarrantedly dramatizing the situ- ation as he testified that Bray asked whether he was a gam- bling man and continued that Douglas had told him to send Bishop to the union hall to pick up the contract; that he had replied that it was "unusual that [he] should be the one picked" to get the contract; and that Bray remarked that he thought there was "some horseplay going on . . . " Bray, certainly not inimical to Bishop, told us that he asked Doug- las "if it would be all right if Mr. Bishop came" for the contract to be signed and returned to Douglas; the latter agreed, and "Bishop volunteered to go down." Douglas' version was simply that Bray told him that he would send a man, possibly Bishop, who was there, for the contract. Continuing with our telephone conversation between Bishop and Douglas on the morning of January 3, when Douglas declared that the men were not to work for a scab company that had no contract, Bishop replied that he was not on the payroll and that what he did with his own time was his own business. While Bishop maintained to Douglas that he had not been fired or laid off, the fact remains that Bishop did not work that day and indicated, by his state- ment that he was not on the payroll, that he would not work until a contract had been signed. Clearly to this point in declaring that the operators were not to work for a noncontract employer, Douglas was not causing or attempting to cause Bishop's discharge. No more probative or indicative of consequent union animus is Bishop's reply that what he did with his own time was his own business. If Bishop was here declaring his indepen- dence, he might have selected a more appropriate and meaningful occasion and language. Indeed such a rude re- ply, while pointing out that he was not working, seems to have lacked any point at all as it did not respond to or contradict what Douglas had said about not working with- out a contract. This reply, unexplained, and a warning by Pardue, the union steward, of a fine if Bishop worked for a contractor which did not have a union contract constitute the only basis suggested for union antipathy toward Bishop. It is quite inadequate as such basis and for a finding of animus and consequent unlawful action by the Union. In any event such a reply is not to be cited and relied upon as a basis for a suspicion that it prompted union antagonism and subsequent action against Bishop. We are still con- cerned with the evidence of unlawful action by the Union as alleged. Bray on behalf of the Company having signed the agreement with the Union later on January 3, the various operators including Bishop went to work for the Company on January 4. We recall that Opryland had-first decided to eliminate a general foreman but had later appointed Gilliam to that post, assigning him to Akers' payroll. It is true that a fore- man can be an agent of both the employer and the union on a given job.2 Here, Gilliam was the employer's (whether Opryland's or Akers) supervisor and agent. But there is no proof that he was more than a rank and file member of the Union without any indicated agency for the latter. The complaint allegation is that he was a member of the Union; the ultimate fact alleged but not proved is that he was a union agent. With this necessary background to describe the situ- ation as it existed on January 12 (more, which was unneces- sary, was received and much more offered), we come to Bishop's discharge. Bishop's version is that at about 9 a.m. on the 11th he shut his machine off to remove some heavy clothing and, there being no water nearby, took some coffee out of his thermos jar; that Gilliam approached and asked him why he was taking a coffeebreak and that he replied that he was not taking a break but merely quenching his thirst; that Gilliam then pointed to a water can and to officials nearby, saying that they were management inspec- 1 This bookkeeping arrangement reminds us of that in December, when Bishop was placed on the Akers payroll while he worked with the Opryland Z Carpenters Local No. 517 (Gil Wyner Construction Company), 112 NLRB landscaping crew. 714, 715, 716, 721 , affd. 230 F.2d 256 (C A. 1). OPERATING ENGINEERS LOCAL NO. 369 645 tors and were probably watching both of them, and that he did not want to be fired because Bishop was taking a coffee- break; and that when Gilliam said that he did not care how far it was to the water can, Bishop replied he would do that the next time. Bishop continued that a short time later Gil- liam approached and told him that he was fired because he had been drinking coffee and, when he pointed out to Gil- ham that it would have taken 25 to 30 minutes (!) to go some 100 yards through mud and water to the water can, Gilliam again said that he did not want to be fired because Bishop was taking a coffeebreak.3 Bishop then went to see Bray in the office, who told him that he had already heard one side of the story and wanted to hear Bishop's. Bray then said that he did not like the way Gilliam was running things and that it was time to show Gilliam who was in fact running the job, and he then directed that Gilliam's checks be made out and told Bishop to finish the job he had been working on and then to go to work at the warehouse. When Gilliam later saw Bishop at work, he asked what he was doing there since he had been fired; and when Bish- op replied that Bray had told him to go to work, Gilliam's response was that either Bishop or he himself would be out of a job. At lunchtime, while Bishop was in his automobile, Par- due, the union steward, asked him why he had gotten Gil- liam fired and, when Bishop explained that he had had nothing to do with that, warned that he would file charges against Bishop and have him fined by the Union if he got on his machine after lunch. There is no evidence that this warning on January 11, not alleged as interference attrib- utable to the Union, if it represented the attitude of Pardue and the two operators with him at the time, was directly or indirectly transmitted to the Company. Neither was this alleged as a violative remark nor litigated. The incident is here cited although the General Counsel did not refer to it in his oral argument. (It does not appear that he had this in mind during oral argument when he uncertainly referred to a threat by Douglas or Williams on January 3.) According to Bishop, he then telephoned Douglas, told him that Gilliam had fired him and, when Douglas declared that he was aware of that, added that Bray had put him back to work and fired Gilliam. Bishop then asked Douglas whether he was allowed to continue to work since Bray had put him back on the job, and Douglas allegedly replied that Gilliam had fired Bishop; he would "stay fired" even if the Company put him back to work. Although there had been this discussion over the telephone and apparently an oppor- tunity for Bishop to say whatever he wanted to say, Douglas now allegedly promised to come down to the site to hear Bishop's grievance. According to Bishop, Douglas said that although Gil- ham may have been fired, he would be back on the job the 3 Perhaps to show that Gilliam did not in fact effect the discharge, or merely to raise any question , however immaterial or futile, which could be raised, a weak attempt was made to question Gilliam 's authority to discharge, the provision in the general agreement being cited to the effect that "Fore- men shall have only such authority as assigned by the employer ..." We recall that Opryland had made Gilliam operating engineer foreman and coordinator for virtually all of the engineers on the project. Nor, while dtsputmg the basis for his discharge , did Bishop at any time question Gilliam's authority next morning; he directed Bishop to get off the site. Bishop then related the conversation to Bray, who was near the telephone and the latter told him to "hang loose" and to come back the next morning. When Bishop went to the office on the morning of the 12th, Bray told him that Gilliam had been sent back to work and had returned his paychecks. Bray then remarked that, when a project manager could not fire a man, it was time to find another job. According to Gilliam, he saw Bishop drinking one and later another cup of coffee and fired him. I do not credit Bishop's testimony that, thirsty as he was, he poured out and drank only a sip of coffee (or that he poured out more but drank only one sip). When Gilliam saw Bishop return- ing to his machine a short time later and was informed that Bray had sent him back to work saying that he was going to fire Gilliam instead, the latter declared that he was going to the office, that he would leave if Bishop remained. Bray then told Gilliam that he was going to fire him and keep Bishop. According to Douglas, Gilliam called and informed him that he had discharged Bishop. The latter then called, said that he had been fired because he had been drinking coffee and was told by Douglas to come to the office, that he would investigate, and that if there were no sufficient reasons he would be reinstated with full pay; but that Bish- op did not come to his office. Gilliam then informed Doug- las that Bray had told him that he had been fired instead of Bishop. Douglas maintained that Bishop admitted that he had drunk two cups of coffee. Douglas spoke to Burke, who had appointed Gilliam, himself a union member, to be general foreman on the job. Douglas then called Robert Akers and said that the latter now had problems. Akers told Douglas that he would check about the coffee drinking and the firing, and then called back and said that Gilliam would be back on the job and that the Company would apologize to him the following morn- ing. Further according to Douglas, Bishop did not come in to see him but telephoned a day or two later; he told Bishop at that time that he was satisfied that Bishop had been fired for taking coffeebreaks to which he was not entitled. To the extent that this developed into differences between Bishop and Gilliam, it was the latter's prerogative as general fore- man to discharge, and no discrimination is claimed in this connection. According to Robert Akers, Douglas called and told him that there was a possibility that the Company might have some trouble. Akers maintained that Douglas had said that Gilliam's absence might cause trouble, not that it would, and that Bishop's name was not mentioned, Douglas' con- cern being over the discharge of Gilliam. Akers testified also that he spoke with Burke, who said that Opryland did not want any more trouble and wanted Gilliam back on the payroll (we recall that it was Burke who had designated Gilliam); and that when Akers asked about Bishop, Burke replied that he did not "want to get into that." Akers imme- diately called Douglas and told him that he wanted him to have Gilliam back on the job in the morning as Opryland had instructed. Gilliam testified in this connection that Burke told him the next morning that he was to be back on Akers' payroll 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he would be reimbursed; and that Robert Akers told him that Bray would thereafter be in charge of mate- rials only but that another, Scott, would be in charge of men and firing on behalf of the Company. This last confirmed Robert Akers' earlier testimony that while Bray was the company's project manager, Scott was in charge of man- power and had the authority to hire and fire. Bishop's testimony suggesting animus (by Gilliam in the first instance to be attributed to the Union, or by the Union and communicated to Gilliam), as indicated by un- pleasant work assignments, was misleading. Bishop subse- quently admitted that others received similar assignments and even continued on them after he was relieved of such, and that he did not feel discriminated against. This extend- ed attempt to show that Gilliam, whomever he represented, discriminated against Bishop in assignments fell flat ; it rath- er emphasized Bishop's limited experience, admitted by him, and Gilliam's encouragement but ultimate dissatisfac- tion with his work. Aside from concern with discrimination as alleged, we do not pass on Gilliam's judgment as supervising mechanic or foreman. If Douglas sought Gilliam's reinstatement, that was not unlawful; and if Gilliam exercised his authority and responsibility to discipline Bishop, as he evidently and law- fully did, that was no violation by the Union or by the Company. Nor is the latter charged with discriminatory discharge. There is no sufficient evidence to support the allegation that it was Douglas who caused or attempted to cause Bishop's discharge. Bray, who had not fired Bishop but had told him that he could not let him go back to work until lie spoke with Douglas, was overruled: He lost his authority to discharge, Gilliam was reinstated, and Bishop was fired. In this clash of personalities, Bray lost out and resigned. Whether he represented Akers, the subcontractor, or Opryland, the contractor on the site, Gilliam spoke for man- agement, not for the Union, when he exercised the authority and responsibility conferred upon him by Burke, Opryland's executive. It has not been shown that the Union caused or attempted to cause Bishop's discharge. To argue that Douglas' insistence on Gilhams' rein- statement was violative because tantamount to reinstating his authority to discharge Bishop is to deny a union's tight to plead for or insist on reinstatement of a member. Nor, as noted, had Gilliam acted discriminatorily or otherwise un- lawfully in discharging Bishop. Neither did Bray discrim- inate against Bishop, while the issue of Gilliam's continued employment and authority was determined, in telling him that there was nothing he could do. Indeed, on the facts found by the general foreman, the Employer, terminating Bray's authority to discharge or acting through Bray, could lawfully have kept Bishop off the job had he presented himself for work. Even if Bishop told Williams on the morning of Janu- ary 3 that he was going to work that day because he had not been informed that had been laid off (we recall also Bishop's reply to Douglas even though he did not work) this would be a slim reed on which to rest a finding of union animus against Bishop which manifested itself on January 12. We recall that, like the other operators, Bishop did not return to work until January 4, after the agreement was signed. An inference or series of inferences is here sought: that Pardue's January 3 threat of a union fine against Bishop on a condition which did not develop was transmitted to the Union and metamorphosed into animus which in turn was transmitted to Gilliam who therefore discharged Bishop on January 12. Here we would have inferences growing like a kudzu. This threat, it should be noted, is not itself attributed to the Union or charged as a violation although the more serious claim is made that it warrants a finding of animus and of causation of discharge. If, as appears, Pardue, as steward, was the Union's agent,4 his remark, however it may have tended to interfere with or affect Bishop, does not appear to have been implemented or transmitted to the Company as an attempt to cause Bishop's discharge. A measure of the gravity of such a threat may be found in the fact that no charges were brought and that no fine was imposed on Bishop. (This is not to be confused as post facto proof that the threat was not made.) In any event in this connection the threat is not alleged to be violative in itself and was not litigated. Nor, like the unalleged threat by Pardue on January 11, was this urged by the General Coun- sel in his argument. As we attempt to touch every base while, without ap- plause, doffing the cap at every claim, we note that a letter from the union president offered by the General Counsel recites that Bishop was fired by the Company foreman for not following instructions and for doing unsatisfactory work, and that the Union was not responsible for his dis- charge; the Union had investigated and found that the Company was justified in firing Bishop. This letter, so far from an admission against interest, is a self-serving but now confirmatory statement supporting the Union's position. 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: ORDERS The complaint is dismissed in its entirety. ° Without reciting all of the testimony which sufficiently indicates the steward's agency, we may note the following statement in a question by counsel for the Union - "He represents the Umon in dealing with the other men and to some extent in dealing with the Employer ." This was answered in the affirmative. 5 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, and recommended Order herem 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.