Cornell-Leach, Gibson Project

CORNELL-LEACH, GIBSON PROJECT Cornell-Leach, Gibson Project, a sole proprietorship' and Raymond Cook Local Union No. 103, international Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Raymond Cook. Cases 25-CA-5675 and 25-CB-1850 July 22, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 9, 1974, Administrative Law Judge Robert E Mullin issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and Respondent Union and Respondent Company each filed an answering brief. 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 at- tached 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 complaints be, and they hereby are, dismissed in their entirety MEMBER KENNEDY, dissenting: I dissent from the decision in this case for the rea- sons stated in the dissents of Member Penello and mine in Brady-Hamilton Stevedore Company, 198 NLRB No. 18 (1972), and J. L. Allen Co., 199 NLRB 675 (1972). I The name of Respondent appears as amended at the hearing 2 We correct an inadvertent error in the Administrative Law Judge's ac- count of Project Manager Maburn's conversation about June 28, 1973, with Job Steward Gordon Hill, in sec B . entitled "The facts," par 7 The last sentence in par 7 is corrected to read "Job Steward Gordon Hill" instead of "Business Agent Hill" DECISION STATEMENT OF THE CASE 495 ROBERT E. MULLIN. Administrative Law Judge' These cases' were heard on January 24, 1974, in Princeton, Indi- ana, on an order consolidating the cases, complaints of the General Counsel,' and the answers of the Respondents (herein called Respondent Employer, or Leach, and Re- spondent Union, or Iron Workers) The complaints allege that the termination of Raymond Cook, an employee of Leach, involves a violation of Section 8(a)(3) and (1) by the Respondent Employer, and of Section 8(b)(2) and (1)(A) by the Respondent Union These allegations are denied by the Respondents in their entirety. At the trial, the General Counsel and the Respondents were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses and to file briefs. Oral argument at the conclusion of the trial was waived. On February 25, 1974, all parties submitted briefs. Upon the entire record in the case, the briefs of counsel and from his observation of the witnesses, the Administra- tive Law Judge makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT EMPLOYER The Respondent Employer, a sole proprietorship owned by William H Leach, with its principal office and place of business at Princeton, Indiana, and various facilities in other States, is engaged in the construction industry as a steel erection subcontractor. During the period prior to is- suance of the complaint, a representative period, the Em- ployer purchased and had delivered to its Princeton facility and other sites in the State of Indiana, goods and materials valued in excess of $50,000 which were transported to such points directly from States other than Indiana. Upon the foregoing facts, the Respondent Employer con- cedes, and it is found, that Cornell-Leach, Gibson Project, a sole proprietorship, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. it THE LABOR ORGANIZATION INVOLVED Local Union 561 , Laborers' International Union of North America , AFL-CIO (herein Local 561, or Laborers), Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (here- in Local 103, or Iron Workers), and International Associa- tion of Bridge , Structural and Ornamental Iron Workers, AFL-CIO (herein International Iron Workers), are labor organizations within the meaning of Section 2(5) of the Act. 1 The name of the Respondent Employer and the caption in Case 25- CA-5675 appear as amended at the outset of the hearing 2 The charge in Case 25-CA-5675 was filed on July 5, 1973, and the charge in Case 25-CB-1850 was filed on November 30, 1973 The complaint in the former case was issued on November 30, 1973, and an amendment thereto was issued on January 10, 1974 On the latter date, the Regional Director issued the complaint in Case 25-CB-1850, as well as an order consolidating the two cases and notice of hearing 212 NLRB No. 74 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111 THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Since the latter part of 1971, Public Service of Indiana, Inc., has had under construction near Princeton, Indiana, a large generating facility known as the Gibson Power Plant. Leach began operations at this location in January 1972 as the subcontractor for the steel assembly work and has been engaged there continuously since that time. Employment by the Respondent Employer has varied from a low of only a few employees to a high of approximately 170 men. Most of this work force has been engaged in steel erection and all of the men so employed have been members of the Respon- dent Union. During June 1973, Respondent Leach had, at the Gibson site , approximately 130 ironworkers, about 15 members of the Operating Engineers who operated cranes and, for a time, a locomotive,' one member of the Teamsters who drove a truck, and one laborer. Since the initiation of work on the Gibson Project, the Respondent Employer has had collective-bargaining rela- tions with, inter alia, both the Laborers and the Respondent Union. Charles W. Hill, business agent for Local 103, testi- fied that, pursuant to their contract, when Leach has need for more ironworkers, it contacts him and, customarily, these requests are met by sending the necessary number of ironworkers to the Gibson Project. The close ties between the Respondent Employer and Local 103 that are signified by a union shop contract and a hiring hall relationship are further enhanced by the fact that Richard Hill, the Employer's superintendent on the Gibson Project, is a brother of Business Agent Hill and the further fact that the Iron Workers job steward on that site is Gordon Hill, the father of both the business agent and the superintendent. The issues in this case involve the Employer's termination of Raymond Cook on or about June 28, 1973. At the time, Cook was the sole member of the Laborers in Leach's em- ploy. According to the General Counsel, the termination of Cook constituted a flagrant violation of Section 8(a)(3) and (1) by the Employer and of Section 8(b)(2) and 8(b)(I)(A) by Local 103. These allegations are denied by the Employer and by Local 103. According to both Respondents the com- plaints herein should be dismissed because the instant mat- ter involves a jurisdictional dispute which is governed by Brady-Hamilton Stevedore Company, 198 NLRB No. 18. B. The Facts Raymond Cook was hired by the Employer in March 1972. He had been referred to Leach by Elvis Dougan, assistant business representative for the Laborers. At the hearing he testified that he had been a member of the La- borers for 14 years and a member of Local 561 for 8. Cook's primary job was to distribute from 20-25 large containers of drinking water for use of the ironworkers each morning. This required about 2 hours of time at the begin- ning of the shift. He was assisted in this task by one Tommy Dean, an apprentice ironworker. The truck used for hauling 3 A specially built railroad spur was used by the train crew in moving steel girders to the powerhouse site from a storage facility some distance away the cans of water to their distribution points was driven by a member of the Teamsters Union. Other than to drive the truck, however, the latter did not assist Cook or Dean in any way. Occasionally, some of the water cans had to be refilled and it was Cook's responsibility to see that this was done. After finishing his water delivery chores, Cook was respon- sible for cleaning the office trailer and the change shack used by the ironworkers, as well as keeping the paper cups picked up around the water tanks. During the winter months, trucks crossing over the tracks used by the service train frequently caused an accumulation of mud and dirt that hampered the operation of the loco- motive. In addition to his other duties, Cook was assigned the job of keeping the rails clean at the crossing area. He was assisted in this work by his son, who was also a mem- ber of the Laborers. In May, when the weather improved and the rail tracks no longer needed any further attention, this work was discontinued and Cook's son was laid off. Thereafter the elder Cook was again responsible only for the distribution of drinking water and the occasional clean- ing of the office trailer and the change shack. Subsequent to the layoff of his son, Cook was the only member of the Laborers Union in Leach's employ. He was never asked by anyone to become a member of the Iron Workers. Cook credibly testified that on the morning of June 28, 1973,1 Superintendent Hill told him that he was being laid off at the end of the shift that day. According to Cook, when he asked for a reason, the superintendent stated that he had orders from Job Steward Gordon Hill to lay him off because the Laborers was taking his type of work away from the Iron Workers in the Evansville area 5 and that, since Cook was not a member of the Iron Workers, in the future ironworkers would perform his work on the Gibson site and Cook would have to be laid off. That afternoon, Cook called on James C. Maburn, the project manager, to remind him that Leach had a contract with the Laborers and to protest his impending layoff. Ac- cording to Cook, aside from stating that he was pleased with his work, Maburn offered him no solace. Instead, Maburn told him that Job Steward Gordon Hill had declared that Cook had to be laid off, that he (Maburn) had discussed the matter with Mr. William Leach, and that Superintendent Richard Hill had been directed to lay off Cook that af- ternoon. Maburn's testimony substantially corroborated Cook. According to the project manager, Job Steward Gordon Hill came to see him on about June 28. Maburn testified that at that time the union' representative declared that Cook's job of distributing water and cleaning the change shack would have to be given to the Iron Workers at the Gibson site because of a dispute in Evansville in which the Associated General Contractors (herein AGC) had given work to the Laborers and Carpenters instead of to the Iron Workers. Maburn acknowledged that Business Agent Hill did not make any threat-as to what would occur if Cook was not replaced. Maburn further testified that the day before Cook's ter- All dates hereinafter are for the year 1973, unless noted otherwise. 3 Evansville is about 30 miles from the location of the Gibson Project. CORNELL-LEACH, GIBSON PROJECT mination Superintendent Hill inquired as to whether he (Maburn) had been informed that the Iron Workers was claiming the water distribution work . According to Ma- burn , he told his superintendent that up to that point no such demand had been made to him . Maburn testified that the next day, however , the decision to terminate Cook was made after Job Steward Gordon Hill talked with him about the matter According to Maburn, a short while after he told Superintendent Hill about his conversation with the job steward , the superintendent reported back to him that he had terminated Cook and replaced him with an ironworker. The latter was Tommy Dean, who, until that time, had been Cook's assistant. Richard Hill was an evasive witness during much of the time that he was on the stand . He at first denied that the Iron Workers' demands upon the Employer had anything to do with Cook's termination . However , Hill's testimony was changed substantially after he was confronted with a pretri- al affidavit . In the latter, Hill had averred that the action as to Cook was taken after Business Agent Charles Hill noti- fied the Employer that Iron Worker apprentices were enti- tled to the job of bringing drinking water to the ironworkers and that if the Employer did not reassign the work "the Union would take a stand." Superintendent Hill also testified that the work for Cook had declined to the point where there was little for him to do. However , it is evident that in so testifying Hill was referring to the situation that would prevail after the job of supplying dunking water had been taken from Cook and given to an ironworker . When asked the following ques- tions, Superintendent Hill gave the answers which appear below: Q. So you made that decision right then when he said the Iron Workers were requesting this carrying of the water and because of that you decided you did not need Mr. Cook any longer? A. Right. Q. This was the thing that caused you right then to decide to get rid of Mr. Cook [ the fact that] the Iron Workers were claiming this job of distributing the wa- ter and requested that they have that work? A. Right. Superintendent Hill likewise testified that Cook was re- placed by Dean , the ironworker. According to Hill, Cook had been Dean's assistant rather than the other way round. This testimony , however, was not credible It also found no support in the testimony of Project Manager Maburn or in that of Cook . It was Cook who was the more credible when he testified that Dean had been his helper over a period of several months. Superintendent Hill testified that after Dean finished dis- tributing the water, as an Iron Worker apprentice, he was thereafter effectively employed during the rest of the day on 497 steel assembly work Cook, on the other hand, without the job of distributing the water , would be left with nothing to do but clean the office trailer and the change shack. Hill protested that the Employer could not afford to pay Cook approximately $250 a week to perform this latter type of work 6 According to Hill , after Cook's termination, the timekeeper was assigned the job of sweeping the office trail- er and since June 28 no one has cleaned or swept out the change shack. Elvis Dougan , assistant business representative for the Laborers , testified that it has been the practice of several of the employers on the Gibson Project to assign laborers to perform the water distribution chore in the same fashion as Leach had done prior to June 28 Thus, according to Doug- an, on the Gibson site, the Gus K. Newburg Corporation, the general contractor , employed one or two laborers to haul water, and sirrularly one or two laborers were em- ployed to carry water at each of three other contractors, to wit, Foster Wheeler Co., William Hock Co., and the Lind- sey Company. Dougan further testified that on the other jobs the Laborers has not had any problems with the Iron Workers as to the water hauling issue . Nevertheless , Charles Hill, business agent for the Iron Workers, testified that other contractors on the Gibson Project had apprentice Iron Workers distribute the water for the crews . According to Hill, this was the practice of Pittsburgh Bridge & Iron, H H. Robertson , and The Koch Corporation , all of whom were engaged in work on the generating plant dunng the period in question Hill further testified that he has been a member of Local 103 for 17 years and that throughout that period his union has held to the position that on steel assem- bly work the Iron Workers apprentices should carry the water. According to Hill , any other rule in the steel erection field would be impractical since it would not be feasible to require that a small steel assembly contractor hire a laborer whose sole duty would be to distribute two or three cans of drinking water a day to the steel erection crews. Business Agent Hill also testified that in June 1973 there was in effect a dispute settlement process that was available and which could render a binding decision in disputes be- tween the Laborers and the Iron Workers . This, of course, was a reference to the Impartial Jurisdictional Disputes Board that was reestablished on or about June 1, 1973, by agreement of the Building and Construction Trades Depart- ment, AFL-CIO, and the principal contractors' associa- tions in the building field. Hill further testified that no one involved in the current dispute instituted any action under the foregoing procedures for the settlement of the instant jurisdictional dispute. On the other hand, Dougan , assistant business agent for the Laborers, testified that although the Laborers had re- cently become a party to the agreement for settlement of jurisdictional disputes by the above-described Joint Board, in June 1973 the Laborers was not a party to that accord. Dougan testified that after Cook's termination he protested to Maburn regarding the action , but that he did not file a 6 Cook received $5 85 an hour Superintendent Hill testified that although there was only about 4 hours of work a day for Cook, the contract with the Laborers required that he had to be paid for full 8 -hour day For a 40-hour week his pay at $5 85 an hour was $234 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance under the Laborers contract with the Respondent Employer. According to Dougan, his union adhered to the position that only a member of the Laborers should carry the water at a jobsite and that the laborer should be em- ployed for a full 8 hours a day even though his water car- rying duties might require only a small portion of that time Dougan further testified that he did not consider the issue involved in the Iron Workers having taken over Cook's water carrying duties to be a jurisdictional dispute. Concluding Findings The facts in the instant case, at least on the surface, present the classic situation where, after demands by a union for the discharge of a nonmember employee, the employer acquiesces, and thereafter the Board finds that the employer has violated Section 8(a)(3) and (1) and that the union has violated Section 8(b)(2) and (1)(A) of the Act. The Respondent Employer and the Iron Workers, howev- er, contend that the situation here involves a jurisdictional dispute and that Brady-Hamilton Stevedore Company, 198 NLRB No. 18 (1972), is controlling. There the Longshore- men (ILWU) and the Operating Engineers were engaged in a jurisdictional dispute as to which employees would oper- ate floating barge cranes. At the time in question the long- shoremen refused to sling logs for loading by the crane operators who were members of the Operating Engineers until such time as the cranes were manned by members of the ILWU. As a result of this pressure, the employer ac- quiesced in the demands of the Longshoremen. Thereafter, following a 10(k) proceeding, the Board issued a decision and determination of dispute wherein it awarded the work to employees represented by the Operating Engineers. When the Longshoremen refused to comply with the award in subsequent proceedings alleging violations of Section 8(b)(4)(i) and (ii)(D), the Board found an 8(b)(4)(D) viola- tion on the part of the ILWU. Thereafter, in another com- plaint proceeding, the employer was charged with violating Section 8(a)(3) in having terminated the employees who were members of the Operating Engineers. The Board,' however, dismissed the allegation that the respondent had violated Section 8(a)(3) and held that in work assignment dispute situations the parties must rely on Sections 10(k) and 8(b)(4)(D). In a later jurisdictional dispute case , and, in conformity with its decision in Brady-Hamilton, the Board dismissed 8(b)(2) and (1)(A) allegations against a respon- dent union. In so holding, the Board reiterated that in work assignment disputes Sections 8(b)(4)(D ) and 10(k) dictate the exclusive procedure which must be followed. J. L. Allen Co., 199 NLRB No. 111 (1972). In the instant case the General Counsel contends that Brady-Hamilton and Allen are applicable only in the event there exists an "acute, bona fide jurisdictional dispute" (Brady-Hamilton, supra at p. 5.) The General Counsel argues that to establish the existence of such a dispute within the meaning of Sections 10(k) and 8 (b)(4)(D) it is necessary that there be evidence that the respondent labor organization has engaged in, or threatened to engage in, illegal conduct. 7 Members Kennedy and Penello dissenting The General Counsel further contends that in the present case there is no evidence that Respondent Union threatened the Employer with a strike, slowdown, or any other retalia- tion if Cook was not terminated. Hence, his argument runs, Brady-Hamilton and Allen are inapposite here. From the above, it is evident that the General Counsel would urge that unless the facts disclosed clearly illegal conduct, or the threat of such, on the part of the Respondent Union there is no basis on which to hold that the Iron Workers here had precipitated "an acute, bona fidejurisdic- tional dispute." To meet this argument the Respondent Em- ployer contends that Section 1 of the Act must be read in conjunction with Section 8(b)(4)(D) and that, when keeping in mind that the overall purpose of the Act, as set forth in Section 1(b), is to prevent industrial strife it does not seem reasonable to assume that Congress could have intended that Section 8(b)(4)(D) would become operative only when one party to a work assignment dispute had resorted to threats, work stoppages, and other illegal conduct. There is merit to this argument of the Respondent Em- ployer Many years ago, in construing the term "concerted activities" as used in Section 7 of the Act, it was urged that the protection accorded by the statute would not be avail- able if the activities in question were only preliminary to concerted activity or concerted activity in its initial stages. In rejecting this argument the Court of Appeals for the Third Circuit stated "The language of the Act does not require and its purpose would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike " N.L.R.B. v. Kennametal, Inc, 182 F 2d 817, 819 (C.A. 3, 1950). Similarly, in this instance it would not seem that the application of Brady-Hamilton should be withheld until a jurisdictional dispute had generated threats, strikes, and other forms of industrial unrest. Here the business agent for Local 103 claimed that the work of delivering water to ironworkers on the jobsite should be performed by a member of that Union. There was credible testimony on his part, and that of the superinten- dent for the Respondent Employer, that that was the prac- tice at other sites where ironworkers were employed. Likewise, the Laborers could urge, as its business agent did, that one of its members was entitled to the work in question because still other contractors had a member of the Labor- ers perform the job of delivering water to the work crews. Job Steward Gordon Hill told Project Manager Maburn that the Iron Workers was claiming the work of delivering water on the Gibson Project and that Cook'sjob would have to be ceded to a laborer. Superintendent Hill corroborated Maburn and in a prehearing affidavit he averred that the business agent for the Iron Workers had declared that if Leach did not reassign the water hauling job to an iron- worker "the Union would take a stand." At that time Leach was a subcontractor on a large construction project. Over 130 of the Leach employees were members of the Iron Workers and only I of its employees was a member of the Laborers Nothwithstanding the fact that Job Steward Hill made no direct threat of a work stoppage, Maburn, as the project manager for Leach and as one who was experienced in the construction field, had reason to be apprehensive as to what might occur if he ignored the demand that Cook's CORNELL-LEACH, GIBSON PROJECT work be reassigned to an ironworker! This case presents a work assignment dispute which, ob- viously, had not matured to the level of that which was involved in Brady-Hamilton where the parties had already gone the gamut of a Section 10(k) proceeding and a Section 8(b)(4)(D) unfair labor practice case. On the other hand, there is involved here a bona fide jurisdictional dispute and, from the vigor with which all parties have urged their sepa- rate views in this proceeding, it is indeed, "acute." Conse- quently, on the authority of Brady-Hamilton and J. L. Allen, it is recommended that the complaints herein be dis- missed.9 8 In United Brotherhood of Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO (Batterman Construction Company), 166 NLRB 532, 534, 537 (1967), the union's agents told the neutral employer that he would have "problems" if he did not cease doing business with the nonunion employer and that if he did not "cease," the union would have to "do something about it." In Iron Workers Local Union No 167, International Association of Bridge, Structural and Ornamental Iron' Workers of America, AFL-CIO (Tayloe Glass Company), 180 NLRB 201, 202-203 (1969), the union claimed certain work of other employees When a business agent inquired about the problem and was dissatisfied with the answer , he told the employer that he was not going to "go off half cocked on this deal and he wanted to know what he was going to be doing when he did it" When the contractor asked what the business agent had in mind the latter replied, "I think you have been around long enough to know." The Board found that in each instance the foregoing statements constituted threats which tended to prove that the respondent unions violated Sec. 8(b)(4)(u)(B) of the Act. 9 It would appear that Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), has no application to the present situation. The Laborers contract had provision for a grievance committee and the Iron Workers agreement provided fora labor management committee, both of which bodies were empowered by-the respective agreements to render final and binding decisions in any grievance ansing thereunder. However, the Laborers Union was not a party to the Iron Workers contract, nor vice versa Consequently, arbitration is not available since all parties have not agreed to be bound by an arbitration proceeding . District No 10, International CONCLUSIONS OF LAW 499 1. The Respondent Employer is engaged in commerce and the Respondent Union is a labor organization, all with- in the meaning of the Act. 2. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent Employer violat- ed Section 8(a)(3) and (1) and that the Respndent Union violated Section 8(b)(2) and (1)(A) as alleged in the com- plaint. ' Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Administrative Law Judge hereby issues the following rec- ommended: ORDER 10 It is hereby ordered that the complaints herein be, and they hereby are, dismissed in their entirety. Association of Machinists and Aerospace Workers, AFL-CIO (Ladish Co), 200 NLRB 1159 (1972). Neither would it seem that the issue here could be deferred to the Impartial Jurisdictional Disputes Board . Although the Iron Workers Union was a party to the agreement establishing the present version of the Joint Board, Business Agent Dougan testified that at the time in question the Laborers Union was not. Moreover , there was no evidence that the Employer had committed itself to be bound by any decision of that Board Consequently, since all the parties involved had not agreed upon this method for settling the dispute, its use was not available here . N.L R.B v. Plasterers' Local Union No 79, Operative Plasterers ' and Cement Masons' International Association, AFL-CIO, 404 U S. 116, 131-137 (1971). 10 In the event no exceptions are filed as provided in Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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