Dearborn Fabricating & Engineering Corp.

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dearborn Fabricating & Engineering Corp. and Ralph 0. Bymaster Local 70, International Association of Bridge, Struc- tural and Ornamental Iron Workers and Ralph O. Bymaster. Cases 25-CA-7877 and 25-CB-2597 All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed by the parties, and upon my observa- tion of the demeanor of the witnesses, I make the following: FINDINGS OF FACT December 16, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 28, 1976, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter,' the General Counsel filed exceptions and a supporting brief, and the Respon- dent Union filed an answering brief. 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,' 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 the complaint be, and it hereby is, dismissed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Adnumstrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We note that in sec. D, par. 6 of his Decision, the Administrative Law Judge, apparently by inadvertence, referred to a 6-week period ending "Friday, February 12," whereas it is clear from the record and his Decision that he intended to allude to a 6-week period ending Friday, March 12. DECISION STATEMENT OF THE CASE THOMAS R. WILxs, Administrative Law Judge: This matter was heard by me in Seymour, Indiana, on August 19, 1976. On June 24, 1976, the Regional Director for Region 25 issued a consolidated complaint and notice of hearing based upon unfair labor practice charges filed by Ralph O. Bymaster, an individual, on April 12, 1976, charging violations of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. A. Jurisdiction At all times material, Dearborn Fabricating & Engineer- ing Corp., herein, called Dearborn, has been a corporation duly organized under, and existing by virtue of, the laws of the State of Indiana and has maintained its principal office and place of business at Mishawaka, Indiana, and various other jobsites throughout the State of Indiana, including a jobsite at Seymour, Indiana, where it is engaged in the construction industry. During the past year, a representa- tive period, Dearborn, in the course and conduct of its business operations, purchased, transferred, and delivered to its various Indiana jobsites goods and-materials valued in excess of $50,000 which were transported to said jobsites directly from States other than the State of Indiana. Therefore, I find that Dearborn is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization Involved At - all times material herein, Local 70, International Association of Bridge, Structural and Ornamental Iron Workers, herein called Local 70, has been a labor organiza- tion within the meaning of Section 2(5) of the Act. C. Issue The General Counsel contends that Local 70 caused Dearborn to terminate the employment of Ralph O. Bymaster at its Seymour jobsite on March 15, 1976, after 6 weeks of employment because he was not a member of Local 70, being instead a member of Local 22 from the Indianapolis geographical area. Seymour is within the geographical jurisdiction of Local 70, in Louisville, Ken- tucky. Dearborn and Local 70 concede that, at the time of Bymaster's employment, Dearborn had no contractual agreement or practice which required that Dearborn utilize Local 70 as its exclusive source or ironworkers. However, Respondents contend that Bymaster was discharged by Dearborn because of his poor attendance and tardiness and that Local 70 did not request his termination. D. The Facts Dearborn commenced construction at Seymour, Indiana, on February 2, 1976, under a contract with Cummins Engineering, Co. The job terminated after 4 months. The general foreman, Cletus LaSalle, was responsible for all hiring. He brought two members of Local 22 with him from the Indianapolis area. At the time, he was not aware that Seymour fell under the jurisdiction of Local 70 of Louis- ville, Kentucky. It is the uncontroverted testimony of Dearborn's president, Harry Dunville, that it is the custom and practice of the industry for an employer under contract 227 NLRB No. 60 DEARBORN FABRICATING & ENGINEERING 349 with a local union and the International Iron Workers union, upon entering the geographical jurisdiction of another local union affiliated with the same international union, to be permitted to employ 40 percent of its work force from outside of the local wherein the work is performed, and to emplay,60 percent of its work force from the local which asserts jurisdiction over the geographical area of the jobsite. Dearborn has been signatory to a contract with the International Iron Workers Union since 1956. Although Dunville testified to the existence of a contract with Local 70, effective upon the commencement of the Seymour job, its current contract with Local 70 was executed on June 21, 1976. LaSalle, prior to construction at Seymour, arranged to hire Richard Wooten as its Seymour job foreman and Ralph Bymaster as his welder. Bymaster worked for LaSalle on a prior job and was considered by LaSalle to be a "helluva good worker," as well as a friend. Bymaster gave up an inside job close to his home to accept the Seymour job offer which was conveyed to him through Wooten, his -fellow worker on the Indianapolis job. Wooten and Bymaster are both friends and fellow officers of Local 22. Wooten was aware that Seymour was in Local 70's jurisdiction, and he therefore contacted his uncle, Carlton Wooten, a business agent of Local 22, who in turn contacted Business Agent Bruce of Local 70 to advise that Dearborn was bringing Wooten and Bymaster into Sey- mour as men previously employed and "key men." Business Agent Robert Crabb was informed by Bruce about Dearborn's plans and he in turn arranged to send out Rudy Dones from Local 70, as the job steward. On the first day, February 2, Dones appeared and introduced himself first to Wooten, and thereafter to LaSalle. Dones was immediately employed. Wooten testi- fied that Dones acknowledged, upon meeting him, that Wooten had been "cleared" but that he didn't "know anything" about Bymaster. Wooten told him that he ought to check with his business agent. Thereafter, Wooten testified, Dones told him that he had checked and, although there was "some controversy about how the agreement was finally decided," that, Bymaster could go ahead and work. However, in the first conversation Wooten testified that Dones expressed displeasure with the fact that Wooten and Bymaster were working in an area where 125 Local 70 men were "loafing," i.e., unemployed, and that Local 70 would rather have their own men working. Furthermore, Wooten ,conceded that Dones expressed a desire for Bymaster to return to his prior job. Wooten testified that he protested that Bymaster did not, want to return to the Indianapolis area, that LaSalle wanted him down in Seymour and that "there should be no problems." Wooten testified that, that was the end of it and that Bymaster worked for 5 or 6 weeks without any further comments from Dones or Crabb until the week prior to Bymaster's termination. LaSalle testified that he met Business Agent Crabb a few days after the job started at the jobsite and that Crabb requested a letter from LaSalle setting forth that Wooten had been employed by LaSalle on a prior job. LaSalle testified that such a letter is the custom and practice in the industry -and is set forth in the international agreement, but that he had not been asked for such a letter in the past 12 years and, further, the practice varies with each local and the amount of unemployment. At Seymour, in February, there were 125 unemployed Local 70 members of about a total of 550 usually employed in construction. Also at that time there were about 100 non-Local 70 iron-workers employed in the area from sister locals (according to the uncontradicted testimony of Crabb). Crabb testified that he was new to the position of business agent, having held it only for 9 months, that he had received inquiries from unemployed members concerning the Seymour job, and that he requested a letter to show "this man was cleared into the local union." He testified that some members had asked him if he had requested such a letter. Crabb testified that he asked LaSalle to include Bymaster in the letter, and perhaps LaSalle misunderstood that it was only for Woo- ten, but that in any event he does not recall ever receiving it. Wooten testified that he heard no reference to any letter at that time. Crabb had never asked for such a letter before. As to other non-Local 70 ironworkers employed, he did not ask for letters from other visiting contractors but that he did "pick-up the books and cards" in order to collect a service fee from them while they worked in the area. Dones and Crabb testified that they were well aware of the 40-percent rule, that they were advised that Dearborn expected to employ more men on the job, that within a couple of weeks thereafter employment reached a total of five ironworkers, two from Local 22 and three more from Local 70, and therefore no further questions were raised as to either Wooten or Bymaster for the next 6 weeks. As the job progressed, Bymaster's attendance and punc- tuality deteriorated because of his domestic problems. The uncontroverted testimony indicates his attendance and punctuality was the worst of the crew and that it disrupted the work flow and caused four men at times to perform the work of five. Thus, during a 6-week period from Tuesday, February 3, through Friday, February 12, involving 5-day workweeks, Bymaster missed work on February 5, was late 2 hours on February 10, 1 hour late on February 12, missed February 13, was an hour late on February 16, 2 hours late on February 19, three-fourths of an hour late on February 23, 1 hour late on March 1, missed March 3, missed March 10, was 1 hour late on March 11 and 12, and 2 hours late on March 15. LaSalle, corroborated by Dones and Crabb, testified that during the week before Bymaster's discharge 1 he remarked to Dones and Crabb that he had a problem with Bymaster's attendance and punctuality. This was a response to a casual question as to how things were going. They each remarked that there were unemployed Local 70 men available who would,appreciate the job, and who would not be absent or tardy. The conversation with LaSalle occurred during one of his visits to the area on other routine business. On that occasion LaSalle testified that he told Crabb that he was going to give Bymaster another chance. LaSalle talked to Wooten and it was agreed Wooten would warn Bymaster. Wooten testified that he pointed out the problem to Bymaster on Friday, March 12, in general terms, but 1 Crabb and Wooten fix the date as Friday, March 12 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of his friendship did not bluntly warn him of discharge. LaSalle testified that, for most of the absences, Bymaster had been paid and that he tolerated the situation because of his past friendship and because he knew of Bymaster's problems, but that he gradually came to the conclusion that his patience was being abused . He did not personally warn Byiaster at any time. From the record it appears that Bymaster gave advance notice of his absence on only one occasion. LaSalle's testimony that other workers were punctual and not absent except to a much minor degree was not rebutted. Wooten testified credibly, without contradiction, that, on the last Friday that Bymaster worked, he had a conversa- tion with Crabb at the jobsite-wherein Crabb told Wooten that he, Crabb, was getting pressure from the membership because they couldn't understand why he and Bymaster were working, and he wanted a letter on both of them pursuant to the international agreement . LaSalle was not present, having gone for gasoline for the welder. This preceded Crabb's conversation with- LaSalle. Crabb testi- fied that he did not challenge Dearborn's right to hire and employ up to 40 percent of its work force from outside Local 70, and that he did not request Bymaster's termina- tion, but that he was concerned that, as a result of Bymaster's absence, hours of compensation were being lost that could otherwise be earned, if not by Bymaster, by a Local 70 man. He testified credibly that he assumed Bymaster was not paid for time missed. Crabb testified that, on that Friday the 12th, he suggested to Wooten that Wooten try to get Bymaster to go back to a job closer to his home where his attendance would not suffer. Crabb testified that Wooten refused to do so, claiming Bymaster did not want to go back to an Indianapolis job. Wooten did try to convince Bymaster on the evening of the 12th to get a motel room nearby to avoid the long drive to work. This was undenied by Bymaster. Bymaster testified in a vague, confused manner that he had been informed by Wooten that "word came" from Local 70 that they wanted to oust both him and Wooten from the job. At first he testified that this occurred 1-1/2 to 2 weeks after he was hired; then he testified on cross- examination that it occurred 2 to 2-1/2 weeks after he was hired; then he testified there were two conversations, the latter occurring after Crabb's later visit to the job. Bymaster also testified that Wooten told him that Local 70 was "unhappy," and that "it was the general feeling Local 70 wanted as out " It was necessary for the General Counsel to refresh his recollection more than once as to crucial conversations by' reference to his prehearing affidavit. Bymaster further testified that Wooten did not warn him about his attendance and then conceded that he may have warned him. There were great lapses of time before he responded to questions on direct examination, and it was obvious that his ability to recollect was extremely poor. He conceded, after much evasion, that Wooten did not tell him that Crabb requested his removal but that it was his, Bymaster's, conclusion and finally: "I don't know where it all came from. Like I said my memory don't recall that " Thus Bymaster impressed me as being a most unreliable witness whose memory could attend to only the most general reference. However, Wooten did not deny talking to -Bymaster, and I conclude that he did , in general terms, tell Bymaster that Dories and Crabb had made inquiries concerning their status and were eager to put unemployed Local 70 men to work. On Monday; March 15, Bymaster admittedly overslept and was late by 2 hours. He approached LaSalle to explain but was told that he was terminated. LaSalle testified that he told Bymaster: "I gotta let you go," and at that point Bymaster, seeing Crabb nearby, "made some big explana- tion about the local." LaSalle then made arrangements for his check. Crabb was there according to Done's uncontro- verted, credible testimony to check out another subcontrac- tor on the job for the purpose of getting that subcontractor to hire additional help from the ranks of Local 70 unemployed. Bymaster testified that LaSalle stated to him that he was terminated because of pressure from Local 70. At this point of his testimony Bymaster requested time "to collect my thoughts." After a lengthy pause he repeated his testimony and concluded: "it was so requested that they wanted me ousted out of there." Then he testified in an extremely disjointed fashion to the effect that' LaSalle also told him that he had agreed with Dones to get rid of him, "The next day he does not arrive on the job ..." but that Dones later insisted upon an immediate removal. In view of Bymaster's unreliability as a witness based upon his demeanor and his poor memory, inconsistent testimony, and his tendency to confuse his personal conclusion of the meaning of what was said with what was actually said, I do not credit his version of the conversation with LaSalle. I credit LaSalle, Dones, Crabb, and -Wooten wherever their testimony is at variance with Bymaster's. I credit the denial of these witnesses that Local 70, by way of the business agent or the job steward, specifically requested the termination of Bymaster. It is apparent that Local 70 was not pleased to have a high number of its members unemployed, and therefore made early contact with Dearborn to seek employment of their members. Is the evidence sufficient to infer that LaSalle used Bymaster's poor attendance as a pretext to acquiesce in an implicit request of Local 70 to replace him? Is the evidence sufficient to infer that such request had been made? I do not conclude that it is. The most that can be demonstrated is that Local 70 questioned the status of Wooten and Bymaster at the commencement of the j ob, but accepted Dearborn's right to bring in 40 percent of the work force from out of local sources, as it did with other contractors who brought in 125 other nonlocal men. Bymaster worked for about 6 weeks, but his attendance was erratic because of his extraordinary family difficulties. LaSalle informed Local 70 of his'growing displeasure with Bymaster and Local 70 eagerly anticipated the prospect of his imminent departure. LaSalle is the individual who decided to terminate Bymaster. I cannot'conclude-that the eagerness expressed by the Union to replace Bymaster constituted such pressure as to amount to an act ' of causation. They had not bothered about him for 6 weeks. He had been accepted. As to LaSalle, he is an experienced job superindendent and obviously was aware that any local union would prefer to employ its own men. But he was also aware of his right to bring in key men to an area. I cannot DEARBORN FABRICATING & ENGINEERING 351 infer that he was motivated by a desire to please Local 70 after the job was about one-third completed in seizing upon a pretext to get rid of his key man and old friend in the absence of evidence that Bymaster's continued presence, unlike fellow Local 22 Officer Wooten's continued pres- ence, constituted a source of friction between himself and Local 70. I fully credit LaSalle that he came to the point where he felt he could not tolerate further erratic atten- dance and for that reason terminated Bymaster. 2 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 Accordingly, it is my conclusion that the complaint in this consolidated matter should be dismissed in its entirety. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section (c) of the Act, I hereby issue the following recommended: ORDER2 It is ordered that the complaint be, and it hereby is, dismissed in its entirety. 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.