Morrison-Knudsen Co., Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morrison-Knudsen Company, Inc. and General Driv- ers and Helpers Union Local No. 554 affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-5732 April 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 27, 1973, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief to Respondent's exceptions and brief in support of the Administrative Law Judge's Decision. 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 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,2 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Morrison-Knudson Company, Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i Respondent contends that it was denied due process of law because of the Administrative Law Judge's denial of its request that counsel for the General Counsel be required to turn over to Respondent copies of statements made by witnesses who were not called to testify at the trial. We find no merit in Respondent's contention Sec. 102.118 of the Board's Rules and Regulations . Respondent also asserted in its exceptions that it was entitled to a more complete statement of the facts which formed the basis of the complaint. We find no merit in that contention because tb' omplaint sufficiently specified the allegations and Respondent was fully advised of the General Counsel's contentions at the hearing. Lloyd A. Fry Roofing Company, 109 NLRB 1314. See also Sec 102.15 c f the Board's Rules and Regulations. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are 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. DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge : Hearing in this matter was held in North Platte, Nebraska, on November 5, 1973 , upon an amended complaint originally issued by the General Counsel on October 17, 1973, and Respondent's answer thereto. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Morrison-Knudsen Company, Inc., operates a general contracting, engineering and developing firm from its principal place of business in Boise, Idaho. Respondent makes interstate purchases and performs out-of-state services respectively exceeding $50,000 annually, and I find that it is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local 554, the Charging Party herein, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves Respondent's discharge of Terry Harvey and its refusal to reinstate him. Respondent was the successful bidder and was awarded a contract for the site-preparation phase of a power plant project near Sutherland, Nebraska. This project is being constructed under the auspices of the Nebraska Public Power District, a political subdivision of the State of Nebraska, and each phase of the project is subject to competitive bidding under Nebraska law. As of the hearing herein, the Respondent had bid on, but the Power District had not yet awarded, a contract for the construction work to follow the initial site-preparation phase. Respondent began site-preparation operations in June 1973, and its contract with the Power District obligated Respondent to complete this initial phase by November 30, 1973.' The site-preparation work involved the excavation and I All dates herein are in 1973 unless otherwise indicated. 210 NLRB No. 36 MORRISON-KNUDSEN CO. 175 moving by Respondent of more than 6,500,000 cubic yards of dirt in the 6-month period prescribed by its contract with the Power District. Meeting the scheduled completion date of this phase was also critical in terms of Respon- dent's cost for the rental of heavy construction equipment; this item exceeded $20,000 per day. Weather was also a material circumstance; on November 5, when this hearing was held, snow had already fallen. Among the trades or crafts employed by Respondent on the site-preparation project were teamsters and operating engineers. There were 9 teamsters, equally divided into three shifts, and approximately 100 engineers. Before operations began in June, Respondent had accorded prehire recognition to the Charging Party (Teamsters Local 554) as exclusive bargaining representative for all teamsters to be employed on the project, and Respondent had similarly recognized Operating Engineers Local 571, IUOE, for engineers. A. Harvey's Discharge Terry Harvey was one of the Teamsters-represented employees on a three-man shift, and had been appointed Local 554's job steward by Jerry Younger, the business representative of Local 554. Ralph Sudman, an operating engineer in the unit represented by Engineers Local 571, was a job steward for Local 571. Respondent discharged Harvey on August 14 in the following circumstances: Early on August 14, Respondent discharged Engineers Steward Sudman and another oper- ating engineer. At or about 10 a.m. that same morning, Sudman informed Harvey that Sudman was "pulling" the engineers off the project to protest his (Sudman's) and the other engineer's discharge. Harvey worked as a flatbed truckdriver on the project, and Sudman asked Harvey to notify engineers working elsewhere on the project that Sudman had called out the engineers unit. Harvey thereupon drove his assigned vehicle into the field to advise engineers of Sudman's "walkout" call. Harvey returned with some engineers in about 20 minutes, and parked the truck; Harvey decided to pull out the teamsters shift, and, after then discussing the engineers walkout with the two other teamsters on his shift, all three teamsters walked out and left the project. About I1 a.m. that same morning, Harvey informed Teamsters Local President Bill Noble of his walkout with the other two teamsters, and Noble directed them to return to work. The three teamsters thereupon returned to the project about 11:50 a.m., and Harvey advised Respondent Foreman Pat Monnot that they were reporting f c- work pursuant to President Noble's instructions. Monnot replied that "you guys that went out, we don't need you for the rest of the day." Meanwhile, about noon that same day (August 14), Project Manager Duane Buckert notified Business Repre- sentative Jerry Younger of the walkout of all crafts and of Harvey's aforementioned participation. Younger said he would contact the teamster group and direct them to return; Buckert told Younger at the time that Harvey was being terminated, and they later scheduled a jobsite meeting the following morning to discuss the matter of Harvey's reinstatement. Ruckert, Younger, and Harvey accordingly had two conversations on August 15 concerning Harvey, who had meanwhile received a termination notice , effective 10:30 a.m. on August 14, stating as reason therefor, "Directly involved in instigating work stoppage." The engineers dispute was settled on August 15 and Respondent permitted the other two teamsters to return to work. Although there is a conflict whether Buckert said he would reinstate Harvey if Harvey gave up the stewardship or whether Buckert said he might reconsider reinstating Harvey on such condition, the net result was that Harvey was fired and not reinstated . Buckert testified, in effect, that the original dispute solely concerned the Operating Engineers, and that he therefore felt that Harvey as the Teamsters steward "was sticking his nose into someone else's dispute" by "telling . . . [the Engineers ] to go off the job and then carrying his own people [the other two Teamsters] with him when he left the job." B. Contentions of the Parties; Scope of Collective- Bargaining Arrangements Admitting, as indicated, that it discharged Harvey for his strike activities described above , Respondent asserts that the statutory protections normally accorded such activities are unavailing here. Respondent thus contends that it was entitled to discharge Harvey "because the activities he engaged in were a violation of Charging Party's [Teamsters Local 554's] bargaining agreement with Respondent." Respondent refers in this connection to Local 554s standard area agreement, herein called General Counsel's Exhibit 3. The General Counsel raises two controverting contentions : he first asserts that Respondent and Team- sters Local 554 had never agreed to be bound by all the provisions of General Counsel's Exhibit 3; next he claims that, in any event, General Counsel's Exhibit 3 may not be construed as prohibiting strikes or work stoppages. L.W. Sproat is Respondent's assistant director of labor relations. In April, Sproat called Younger (the Teamsters business representative) to obtain information concerning the Teamsters wage rates in the area . Sproat explained, according to Younger's undenied testimony, that Respon- dent needed the information in preparing its bid for the initial site-preparation job. On April 12, Younger thereu- pon mailed General Counsel's Exhibit 3 to Sproat with an accompanying note that General Counsel's Exhibit 3 "is a copy of an for "the"] agreement you requested for the project at Sutherland, Nebraska." Younger's next contact with Respondent was with Project Manager Buckert on or about June 1. They discussed the equipment to be used and the wage rates to be paid on the project, and they also discussed Respon- dent's use of Local 554's hiring hall. All parties agree in this proceeding that Respondent and Local 554 according- ly reached an understanding by June, whereby Respondent extended exclusive recognition to Local 554 and that they be bound by all economic provisions of General Counsel's Exhibit 3, including hiring hall procedures. The parties did not discuss strike or walkout provisions or grievance handling matters at their June 1 meeting. The parties here also agree that they fully implemented the foregoing understandings. 176 DECISIONS OF NATIONAL Respondent and Operating Engineers Local 571 also contemporaneously agreed, by way of oral undertaking, to observe all the terms and conditions of Local 57 l's area agreement, which is in evidence as General Counsel's Exhibit 6. The record does not delineate further discussions between Respondent and Teamsters respecting site-prepa- ration operations. Meanwhile, however, in connection with its interest in obtaining the construction contract for the next phase of the project, Respondent met in August with representatives of the Nebraska Building Trades Council, which includes both Teamsters and Engineers. On that August occasion, Respondent submitted to the Council a proposed projectwide agreement to cover all trades and crafts to be employed on the next phase of the project should Respondent be awarded that construction contract. The Council representatives turned down Respondent's all- trades proposal at the time, and the record does not otherwise describe the status of such negotiations. General Counsel's Exhibit 3 consists of 17 articles with an attached schedule of job classifications and wage rates. While conceding that most of these provisions were adopted by the parties as a binding-albeit oral-arrange- ment, the General Counsel asserts that the parties did not adopt all provisions of General Counsel's Exhibit 3 and he thus claims that articles I, V, and presumably XVI were not agreed upon by the parties. Respondent contends, as already indicated, that all provisions of General Counsel's Exhibit 3 were within the parties' agreement. Respondent and Teamsters Local 554 hardly are neophytes in the construction industry and it may be assumed that each is familiar with the practices and usages of the industry. Respondent having accorded exclusive prehire recognition to Local 554 and both parties having discussed and agreed upon the full gamut of economic and hiring hall provisions of Local 554 s area agreement, I consider it unreasonable to find that the parties did not adopt all provisions of General Counsel's Exhibit 3. Both Respondent and Local 554 had Local 554s area agreement when, in their June discussion, they focused on the "gut" matters involving the economics of the job. As neither party raised any question concerning any other item covered by General Counsel's Exhibit 3, I believe the only fair conclusion in the circumstances is that they implicitly adopted all substantive provisions of General Counsel's Exhibit 3. This conclusion is particularly warranted upon consideration of the Engineers contemporaneous contract arrangement with Respondent, the fact that the parties did observe all economic provisions of General Counsel's Exhibit 3, the fact that the record does not show that either Respondent or Teamsters Local 554 urged further negotia- tions limited to the site-preparation job, and the fact that Respondent and the Trades Council began discussions on terms and conditions should the Power District award a construction contract to Respondent for the next phase of the power plant project. I accordingly find that Respondent and Teamsters Local 554 did adopt and agree to be bound by all substantive provisions of General Counsel's Exhibit 3 and that all such provisions were operative at all times material here. LABOR RELATIONS BOARD C. Does General Counsel's Exhibit 3 Contain a No-Strike Obligation? Respondent predicates its no-strike contention on articles I and V of General Counsel's Exhibit 3. The General Counsel suggests that article XVI also is relevant. These provisions read as follows: Article I Purpose The purpose of the agreement is to promote settlement of labor disagreements by conference, to prevent strikes and lock-outs, to stabilize conditions in heavy and highway construction work in the areas affected by this agreement and to encourage coopera- tion between the employer and the union to their mutual advantage ; therefore, in keeping with the above purpose, the hereinafter referred to as the Employer, and Local 554, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, hereinafter referred to as the Union, agree to be bound by the terms and conditions of this agreement. Article V An authorized representative of the local union shall be allowed admission to the job in carrying out the provisions of this agreement, provided however, that he first contacts the employer or his authorized represent- ative on the job and provided that he does not interfere with the progress of the work. The Union shall designate an employee on the job as steward. The Union agrees to notify the Employer in writing and to assume responsibility for the acts and conduct of the steward while performing his union duties that are authorized by the Union in writing. The job steward shall try to adjust differences that may arise between the Employer or Employer's authorized representative and the employee concerning working rules or agreements, and shall report such controversy to the business agent, who will adjust the matter with the Employer or his authorized representative, if no settlement is reached between the Employer and steward. No employee shall be discriminated against for authorized union activity. The Employer agrees to notify the Union if any reason it becomes necessary to terminate employment of the designated steward. Article XVI Picket Line It shall not be a violation of this agreement, and it shall not be a cause for discharge or disciplinary action in the event an employee refuses to enter upon any property involved in a labor dispute or refuses to go through or work behind any picket line, including the picket line of unions party to this agreement and MORRISON-KNUDSEN CO. including picket lines at the Employer's place of business. In Newspaper Production Company, 205 NLRB No. 113, an employer claimed that sympathy strikers forfeited a right of reinstatement and therefore were lawfully dis- charged because their sympathy strike purportedly violated implied "no-strike" obligations in an operative agreement with the Stereotypers Union. This argument was based on the following statement in the preamble to that contract: This agreement is entered into for the purpose of preventing misunderstanding between the parties; to establish a wage scale, working hours and working conditions ; to prevent lockouts, boycotts and strikes, and to provide for conciliation if necessary. The Board found that the language of the foregoing preamble "falls patently short of obligating the Stereotyp- ers Union to refrain from striking. The preamble is merely a statement of the purpose of the contract and does not embody a waiver by the Union of the right to strike." Article I herein is indistinguishable, and the Board's comment is accordingly controlling here. Article V, above, also falls short as legal predicate for Respondent's "no strike" contention. The Board, with Supreme Court approval, has long held that contractual grievance machinery has the effect of proscribing strikes over grievances where parties have "obligated [themselves] to refer grievance disputes to the arbitrator panel and precluded [themselvesI from using any other means for their resolution" WL Mea4 Inc., 113 NLRB 1040, 1043; Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 105 (1962). An agreement prescribing the exclusivity and finality of arbitration is clearly the touchstone for implying a no-strike obligation in these circumstances. Neither element is present here, and I conclude that General Counsel's Exhibit 3 does not contain either an expressed or implied no-striking undertaking. The General Counsel further contends that articles I and V would, in any event, not interdict the sympathy Strike 2 by Harvey et al., even if these provisions be assumed to provide for arbitration. He thus asserts that the underlying dispute involved the Engineers and was therefore not grievable within article V of General Counsel's Exhibit 3, and that in such circumstances the Mead principle is inapplicable. Washington-Baltimore Newspaper Guild, Local 3.5 (The Washington Post Company, et al.), 186 NLRB 877, 883; Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 105 (1%2). I need not consider this and further arguments advanced by the General Counsel. And in view of my finding that General Counsel's Exhibit 3 does not embody a no-strike prohibition, I also need not consider the General Counsel's alternative condonation theory of the case. 9 Sympathy strikers are entitled to the rights of primary strikers under the Act. NLRB. v. Union Carbide Corporatia, 440 F.2d 54, 55-56 (C.A. 4, 1971); NLRB. v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (C.A. 5, 1970); Truck Drivers Union Local No. 413, etc. (Brown Transport Corp.) v. NLRB. 334 F.2d 539,542-543 (C.A.D.C., 1964), cert. denied 379 U.S. 916. This Jut cited case involved a consideration of an identical provision to article XVI in the present case. CONCLUSIONS OF LAW 177 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. Teamsters Local No. 554 is a labor organization within Section 2(5) of the Act. 3. Respondent discharged and refused to reinstate Terry Harvey for participating in a sympathetic strike against Respondent, such sympathetic strike not being prohibited or otherwise in violation of Respondent's collective-bargaining arrangements with Teamsters Local 553. 4. Respondent has accordingly discriminated against Terry Harvey for engaging in protected concerted activities and it thereby has violated Section 8(axl) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(axl) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating Harvey at the Sutherland project and making him whole. Backpay will be ordered from August 16, the day following settlement of the Engineers strike ; and backpay computa- tions shall be in accordance with F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act , I hereby issue the following recommended: ORDERS Morrison-Knudsen Company, Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate employees for engaging in protected strike activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Terry Harvey immediate reinstatement to his former position or, if that job no longer exists, to a substantially equivalent position at the Sutherland Power Plant project without prejudice to seniority or other rights 3 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and privileges, and make him whole as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against him. (b) Post at its power plant project at Sutherland, Nebraska, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 17 of the Board, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cut: omarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Respondent shall also furnish a copy of the notice to each employee at the plant. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 4 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate Terry Harvey and make him whole for earnings lost since his discharge, beginning August 16, 1973. WE WILL NOT discharge or refuse to reinstate employees to discourage or in reprisal for union or other protected concerted activities, including strike or sympathetic strike activities. MORRISON-KNUDSEN 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 616 Two Gateway Center, Fourth At State, Kansas City, Kansas 64101, Telephone 816-374-5181.