J. S. Alberici Construction Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. S. Alberici Construction Co., Inc. and Edward J. Gebhard and Floyd Brockmeier Alberici-Koch Laumaud, joint venture and Edward J. Gebhard and Floyd Brockmeier. Cases 14-CA- 8683 and 14-CA-8684 August 31, 1977 DECISION AND ORDER By MEMBERS JENKINS, MURPHY, AND WALTHER On November 4, 1976, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondents filed a brief in response to General Counsel's exceptions. 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. Although we agree upon the whole with the sound and well-reasoned decision of the Administrative Law Judge, we believe some additional comments are necessary in order to respond to our dissenting colleague's view. The facts in this case may be simply put. J. S. Alberici Construction Co., Inc., and Koch Laumaud Contracting, Inc., began work as a joint venture (Alberici-Koch Laumaud) in the construction of an electric power plant at Rush Island, Missouri, in early 1971. The operating engineers employed by the joint venture were supplied by Alberici and were transferred from Alberici's payroll to the joint venture's payroll in mid-1972. On September 8, 1971, a Title VII action was brought in the U.S. District Court for the Eastern District of Missouri against several labor organiza- tions, including the Union, and against several contractor associations, including Respondents. The contractor associations were, on March 30, 1973, dismissed from the suit. On January 20, 1976, a consent decree was executed requiring the defendant labor organizations, including the Union, to change their existing hiring hall procedures and refer job applicants on a first-in, first-out basis only. (Alberi- ci's contract with the Union contained an exclusive hiring hall provision which permitted Alberici to 231 NLRB No. 172 request up to 50 percent of the bargaining unit by name.) On January 28, 8 days after the filing of the consent decree, Arthur Bodine, a representative of Alberici and Alberici-Koch Laumaud, advised the Union that the 25 operating engineers then employed by Alberici-Koch Laumaud were going to be laid off so that they could be reemployed the next day on the Alberici payroll. Alberici requested that 13 of the 25 laid-off engineers be referred from the Union's hiring hall as required by the contract referral procedure. Alberici also asked that the other 12 be referred if possible. The Union declined to agree to this proposal. It took the position that the contractual referral procedure was superseded by the terms of the consent decree, in spite of Alberici's contention that the consent decree did not go into effect until 20 days from the date it was signed. As a result of the Union's refusal to abide by the contract, Alberici personally contacted each of the 25 operating engineers who had been laid off and persuaded all but 3 of them to report to work on the Alberici payroll. Two of the three who did not report to work filed a charge with the Board alleging that Respondents' layoff of the 25 operating engineers violated Section 8(a)(3) of the Act. The Administrative Law Judge, in his Decision, found no violation of Section 8(a)(3), crediting Respondents' claim that the 25 operating engineers were laid off for two interrelated reasons: (1) the joint venture Rush Island job was winding down and Alberici wanted to transfer as many operating engineers as it could from the joint venture payroll to its own payroll to give it a nucleus of skilled employees for other Alberici jobs; (2) Respondents, concerned that the consent decree threatened to prevent such a transfer of operating engineers and relying on the advice of counsel that the consent decree did not go into effect until 20 days after it was signed, wanted to time the transfer so as to avoid the prospective effect of the consent decree. Our dissenting colleague, on the other hand, argues that Respondents' conduct violated Section 8(aX3) of the Act because it "so seriously and inevitably pitted the interests of the Union against its members as to have the inherent, and therefore intended, effect of discouraging membership in a labor organization." To fully evaluate our colleague's novel position, a brief review of the elements of an 8(aX3) violation is required. Violations of Section 8(a)(3) of the Act are made out upon a showing of discrimination (1) in regard to hire, tenure, or any other term or condition of employment (2) which is intended to and has the effect of encouraging or discouraging union member- 1030 J. S. ALBERICI CONSTRUCTION CO. ship. It has long been established, however, that specific evidence of intent is not necessary. If the alleged discrimination tends inherently to encourage or discourage union membership, wrongful intent may be inferred, under the theory that a person is presumed to intend the natural consequences of his conduct.' The greater the tendency to encourage or discourage union membership, the easier it is to infer wrongful intent. Thus, if the alleged discrimination is "inherently destructive" of employee rights, even a showing of substantial business justification will not necessarily suffice to rebut the inference of unlawful purpose. On the other hand, if the discrimination has a "comparatively slight" effect on employee rights, a showing of substantial and legitimate business justifications generally proves sufficient to rebut the inference of illegal intent.2 If we apply these cardinal principles to the reasoning of the dissent, Member Jenkins' argument appears to be that Respondents' layoff of the 25 engineers had the inherent effect of discouraging union membership since it placed the Union in the embarrassing position of refusing to refer the 25 laid- off engineers as requested, "made [it] appear as if [the Union] had little or no interest in securing continued employment" for these 25 operating engineers, and "deprived the Union of its contractual entitlement to provide important referral services to job applicants." From this, our colleague infers the existence of an intent to discourage union member- ship. Acknowledging, however, that proof of a substantial business justification might successfully rebut the inference of illegal intent flowing from Respondents' conduct, the dissent argues that Res- pondents' purported business justifications are (1) baseless in fact, and (2) legally insufficient as a matter of law to rebut the inference of illegal intent. We are not convinced that Respondents' conduct had the dire consequences ascribed to it, but even if it did we see no basis for finding an 8(a)(3) violation. The instant dispute arose as a direct consequence of the Union's refusal to comply with the referral provisions of its contract with Respondent Alberici, I See The Radio Officers' Union of the Commercial Telegraphers Union, A.F L. [Bull Steamship Co. v. N. L R. B.. 347 U.S. 17 (1954). 2 .L. R. B v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). ' This is so whether the Union signed the consent because it simply wished toi avoid the nuisance of a trial or because it was indeed guilty as charged and felt a trial would serve from its own point of view no useful purpose. The guilt or innocence of the Union in the Title VII case is, of course. not before us and we express no opinion on that matter. ' To be sure. Alberici could have acquiesced in the first-in, first-out referral of employees proposed by the Union. But we perceive no good reasons for holding that it was obligated to do so, absent any prior iagreement on its part. Contrary to what our dissenting colleague argues. there is no evidence that Alberici rejected the proposed referral and opted for direct hiring for the purpose of embarrassing the Union. It is true, as the dissent points out, that under direct hiring Alberici selected all of its employees instead of only half as would have been the situation under the and its attempt to substitute in their stead a referral system to which Respondents had never agreed. To be sure, the Union apparently believed in good faith-and it very well may have been correct in its belief-that it was prohibited by the terms of the consent decree from complying with those referral provisions in the contract giving Respondent Alberi- ci the right to select half its work force by name. But whatever the Union's reasons for acting as it did, it was nevertheless the Union's conduct 3 -not Res- pondents'-which made it impossible for Alberici to acquire its employees in the contractually specified manner, and which required Alberici to choose between either accepting employees under a first-in, first-out referral system to which it had not agreed or hiring employees directly without going through any referral process. Consequently, Respondent Alberi- ci's direct hiring was ultimately forced upon it by the Union's noncompliance with the contract referral provisions.4 Therefore, any inherent effect of encour- aging or discouraging union membership growing out of Respondent Alberici's direct hiring was a result basically of the Union's conduct and thus cannot reasonably or properly be used as a basis for finding that Respondents violated our Act. Conse- quently, we see no merit in our dissenting colleague's position.5 We need not end our response here, however, for it appears to us that our colleague's argument fails for a still deeper reason-namely, he has not shown that Respondents' conduct had the inherent effect of "encouraging or discouraging union membership" (at least within the meaning ordinarily ascribed to that phrase). Admittedly, Respondents' action em- barrassed the Union, since it placed the Union in the uncomfortable position of having to refuse referral of the laid-off operating engineers. As a result, the operating engineers' ardor for the Union may indeed have been reduced. But this situation is, it seems to us, indistinguishable at bottom from the myriad embarrassments, setbacks, etc., which unions regu- larly experience at the hands of employers-many of which are accomplished by what is arguably "dis- applicable contract provisions. But we fail to see any relevance to this observation, for Alberici could not without the Union's assistance abide by the old referral mechanism, and there is no basis for holding that it had some inchoate obligation in its direct hinng to secure a complement of employees which approximated that which would have resulted had the Union not repudiated the contract referral provisions. I There is no conflict between our conclusions here and the pros isions of the consent decree. for that decree was intended essentially to prevent discnmination in referrals by the Union. Respondent Alberici's direct hiring, of course, foreclosed that possibility. Furthermore, if Respondents are bound by the consent decree-a question presently pending in a I.S. district court-their conduct may well have been in violation of that decree. but it does not follow, at least absent evidence of improper discrimination by Respondents, that they also violated our Act See Laal /976,. United Brotherhood of Carpenters and Joiners of America, A FL, et al v. , .. R. B [Sand Door and Pli, wood Co.]. 357 U.S. 93, 1 I I ( 1958) 1031 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination" in the literal sense. For example, where an employer insists to the point of impasse upon lower wages for a particular group of employees and then after impasse unilaterally implements these lower wages, that action-though it may be said to constitute discrimination (in the sense that one group is treated differently from another) and though it probably makes the union appear "ineffectual, if not actually harmful"-does not constitute a violation of Section 8(a)(3), absent some special showing that the wage reduction was intended as a reprisal for union activities. And where (to take a situation which closely resembles the situation at hand) an employer circumvents the contractual hiring hall arrangement and hires whom he pleases, that conduct is not, without more, thought to violate Section 8(a)(3), although such conduct undoubtedly makes the union appear ineffectual and deprives it "of its contractual entitlement to provide important referral services to job applicants." The present case is a far cry from Radio Officers, where a union unlawfully refused to clear an employee for employment because he had not complied with union hiring rules. That case involved the very direct encouragement of union activities which is absent here. At best, our colleague has demonstrated the existence of an incidental discouragement of union activity which naturally accompanies a union's inability to hold sway in the collective-bargaining process and which is not by itself sufficient to support an inference of illegal intent (especially where, as in the present case, it is countered by proof of a contrary motivation). Acceptance of his position would, we fear, involve us in increasingly exotic and obscure interpretations of Section 8(a)(3). Our dissenting colleague has in short failed to rebut, or to set forth any record facts which serve as a basis for reversing, the Administrative Law Judge's credibility determination that Respondents were in fact motivated by a desire to transfer a nucleus of skilled employees to the Alberici payroll without hindrance from the consent decree. Respondent Alberici was faced with a sudden abrogation of its contractual right to designate referrals from the union hiring hall. In these circumstances, it accelerat- ed its plan to transfer to its own payroll a group of highly skilled employees who had originally been in its employ in order to accomplish the transfer before the operation of the consent decree made this impossible. It is certainly not plausible (as stated above) to infer from this effort or the possible incidental effects of this effort that Respondents sought to discourage union membership by making the Union appear "ineffectual"; nor, for that matter, A question which, as noted above, is currently before a Federal district court. has our colleague pointed to any other evidence which effectively undercuts Respondents' asserted motivation. The dissent makes much of the fact that the consent decree by its terms took effect immediately upon signature and not 20 days thereafter-as if this fact conclusively rebutted Respondents' claim that their action was motivated by a desire to avoid the effect of the decree. But whether the consent decree took effect immediately upon signature or 20 days thereafter (a question this Board cannot with final authority decide) is not determinative of the issue of Respondents' motivation. Testimony of record, which the Administrative Law Judge credited, established that Respondents were advised, by both their own lawyers and an EEOC attorney, that the consent decree was not effective until 20 days after signature. Although this legal advice may have been ill-advised or misguided, the mere fact that such advice was given substantiates Respondents' claim that they acted for the purpose of avoiding the decree's possible effect upon them.6 Our colleague also argues that the fact that Respondent Alberici directly hired all 25 of the employees it wanted transferred (a result which it could not have accomplished under the contract's referral provisions) contradicts its claim that it sought to retain "only" a nucleus of skilled employ- ees. The dissent has to some extent misstated Respondents' asserted motivation, however-in fact, Respondent Alberici sought to secure the transfer of as many of its skilled employees as possible. Respondent Alberici's direct hiring of the full complement of desired transferees reinforces rather than diminishes this claim. As mentioned before, Respondents were in effect confronted with the unilateral repudiation of the contract's hiring hall provisions. Unless bound by the EEOC order, Respondents were presumably entitled to go outside the contract and seek employees on their own. Similarly, our colleague's contention that Respon- dent Alberici could have secured referral of the employees it wanted under the consent decree is, besides being highly speculative, contrary to the evidence. This controversy would not in fact have arisen had the Union agreed to refer the requested operating engineers to Alberici. The provision of the decree which, according to our colleague, gives Respondent Alberici ultimate control over who is referred vests in it only limited discretion to determine whether the persons referred are capable of performing the work required. Utilization of this clause to the extent suggested by our colleague would 1032 J. S. ALBERICI CONSTRUCTION CO. undoubtedly (as our colleague must himself admit) sabotage the effect of the consent decree. We accordingly adhere, for the above reasons, to the Administrative Law Judge's conclusion that Respondents were not motivated by antiunion considerations when they laid off the 25 operating engineers.7 One caveat, however, must be made. We do not, by any of what we have said, mean to condone Respondents' motive. The facts show that Respondents were attempting to avoid the effects of a Title VII consent decree, and for this reason their conduct cannot be commended. The requirements imposed upon unions and employers by Title VII are, it goes without saying, entitled to the same veneration as the requirements imposed by our own Act. But this does not mean that we should stretch the meaning of sections of the National Labor Relations Act to cover situations and to address issues that should properly be decided in another forum. Our jurisdiction can be properly extended only so far. Accordingly, we shall dismiss the complaint in its entirety. 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 complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: I find Respondents herein were discriminatorily motivated in laying off on January 28, 1975, 25 operating engineers employed by Alberici-Koch Laumaud.8 Respondents' conduct in this regard, when viewed in the context of preceding and subsequent events, so seriously and inevitably pitted the interests of the Union against its members as to have the inherent, and therefore intended, effect of discouraging membership in a labor organization. Respondents' alleged business justification for their actions is neither consistent with the facts on record nor legally sufficient to counterbalance the severely detrimental effect on the Union's status in the eyes of Respondents' employees. At all times material herein the Union and Respondent Alberici were parties to a collective- bargaining agreement which provided that a hiring ' The dissent contends our failure to find antiunion motivation in Respondent Alberici's activities here under consideration is misplaced in view of our recent finding in J S. Alberici Construction Co., Inc., 231 NLRB 1038 (1977), in which we agreed Respondent Alberici refused to hire a job applicant for unlawful antiunion reasons. That case and the present one involve wholly dissimilar situations which preclude any casual imputing of the proscribed motivation in the one situation to the motivation underlying the conduct in the other present situation. Especially is this so where, as hall operated by the Union would be the exclusive source of job referrals. Under the agreement, the Employer could specifically request the referral of persons who had been employed by the Employer a total of at least 30 days within the preceding 12 months. The Employer could also specifically request by name up to 50 percent of all additional personnel sought. The remaining referrals were to be provided on a first-in, first-out basis. On January 20, 1975, the Union, in settlement of a civil action brought by the Equal Employment Opportunity Commission, entered into a consent decree in which it agreed to operate the union hiring hall exclusively on a first-in, first-out basis. As reported in more detail in the Administrative Law Judge's Decision, Respondents thereafter at- tempted to enlist the cooperation of the Union in a scheme in which the services of the union hiring hall were to be used in transferring employees from Respondent AKL to Respondent Alberici and whose alleged business justification was (I) the avoidance of the impact of the consent decree, and (2) the preservation of a skilled work force. Before any employees were laid off, the Union informed Respondents that it would not and, pursuant to the consent decree, could not cooperate, but would refer applicants on a first-in, first-out basis. Nevertheless, Respondents laid off all 25 of the operating engineers and, in accord with the terms of the bargaining agreement, specifically requested the referral of 13 of them by name and indicated a desire to reemploy the remaining 12. The Union refused to comply with this request and referred employees exclusively on a first- in, first-out basis. Not satisfied with this arrange- ment, Alberici totally disregarded the procedure of the union hiring hall and directly contacted and offered to reemploy all 25 of the laid-off employees. In 22 cases, the employee acquiesced in Alberici's disregard of the hiring hall procedure and accepted reemployment with Alberici. Two employees be- lieved the procedures used by Respondents violated the consent decree, refused the offer of reemploy- ment, and filed charges with the Board. One employee was not heard from. In Radio Officers' Union [Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17 (1954), a mirror image of the events herein was held to have the inherent effect of encouraging union membership and therefore was discriminatorily motivated. In that case, an employee here, the economic basis of the respondent's actions is apparent and where its action, based on economic premises, was caused by the union's refusal or inability to comply with the provisions of the parties' agreed-upon hiring provisions. I Respondent Alberici-Koch Laumaud (hereinafter AKL) is a joint venture created by Respondent J. S. Alberici Construction Co.. Inc. (hereinafter Alberici), and Koch Laumaud Contracting. Inc. 1033 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had accepted an offer of reemployment with an employer without seeking clearance from the union. Upon discovering the employee's failure in this regard, the union effectively blocked the reemploy- ment of this employee. The Supreme Court affirmed the Board's finding that the union impermissibly caused the employer to discriminate against this employee. The Court quoted the Trial Examiner's finding that: [T]he normal effect of the discrimination against Fowler [the employee] was to enforce not only his obedience as a member, of such rules as the Respondent might prescribe, but also the obedi- ence of all his fellow members. It thereby strengthened the Respondent both in its control of its members for their general, mutual advan- tage, and in its dealings with their employers as their representative. It thus encouraged non- members to join it as a strong organization whose favor and help was to be sought and whose opposition was to be avoided. In its effect upon non-members alone, it must therefore be regarded as encouraging membership in Respondent ... [347 U.S. at 32.] In the present case, Respondents knowingly made it appear that the Union sought to deny reemploy- ment to the operating engineers, which, in this regard, is similar to the facts in Radio Officers. However, Respondents herein took the opposite tack from the response of the employer in Radio Officers and ignored the Union's position in this matter. Respondents disregarded the Union's forewarning concerning the future and proper operation of the hiring hall, and proceeded with the layoffs and rehiring. This sequence of events has the inherent effect of discouraging union membership. Here, Respondents have repudiated the Union's status as the hiring agent, have conditioned the employees' continued employment upon their active involve- ment in this repudiation, and have thereby driven a spike between the Union and its members. The majority improperly characterizes the Union as being the sole cause of controversy over the proper use of the hiring hall. On the contrary, prior to the layoffs, a representative of the Union had informed Respon- dents that the hiring hall would be operated on a first-in, first-out basis. Therefore, in this tango, Respondents were the choreographers of the events immediately preceding Alberici's direct rehiring of the employees. Armed with the forewarning that the Union would no longer operate the hiring hall in the manner demanded by Respondent, it knew before- hand that the only way it could transfer the employees would be through rehiring them directly. Respondents also knew that the laid-off employees would be faced with the dilemma of either respecting the position of their bargaining representative and losing their jobs or disregarding their Union in order to continue their employment. Therefore, Respon- dents laid off the operating engineers knowing that the Union would have to react so as to attempt to deny them immediate reemployment and would consequently be made to appear as if it had little or no interest in securing continued employment for them. Furthermore, in acting out this scenario, Alberici's direct offer of reemployment deprived the Union of its contractual entitlement to provide important referral services to job applicants. It seems patent that union members and job applicants witnessing such a series of events inevitably must experience an erosion in their interest in being represented by such an apparently ineffectual, if not actually harmful, bargaining representative. Thus, in arguing that no violation exists here because any encouragement or discouragement of union membership resulted from the Union's action rather than Respondents', and thus cannot provide a basis for finding a violation by Respondents, my colleagues turn legal principles upside down. The Union was attempting to comply with the consent decree, and Respondents admittedly were attempting to frustrate it. And it was Alberici's attempt at evasion by evading the lawful hiring hall, as modified by the consent decree, which unlawfully disparaged the Union in the eyes of its members. My colleagues seriously question whether Respon- dents' conduct actually has the inherent effect of discouraging union membership, claiming that Sec- tion 8(a)(3) of the Act was not designed to provide unions protection against the "myriad embarrass- ments" consequent to their role as bargaining agents for employees. However, this case involves consider- ably more than a simple "setback" for the Union in terms of its bargaining strategy, or a unilateral modification of a contractual term or condition of employment. In those instances, although the union might not be able to secure for its members the benefits it seeks, neither is it made to appear as if it is seeking to deprive its members of their jobs, which is the situation involved in the instant case. The examples cited by my colleagues are therefore inapposite. While it is true that Respondents may defend the propriety of their actions by showing a legitimate and substantial business justification for their conduct, N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967), there has been no such showing here. Respondents' contention that they sought to retain only a nucleus of skilled employees is highly suspect. The plain facts of the case reveal that in bypassing 1034 J. S. ALBERICI CONSTRUCTION CO. the hiring hall arrangement, Respondents attempted to secure the reemployment not of just a core group but of every employee they laid off, a result that clearly could not have been reached even under the preexisting hiring hall arrangement. Regardless of what Respondents might have otherwise been "con- tractually" entitled to do when faced with the Union's modification of the hiring hall procedure, a consideration which the majority grants undue attention, the fact remains that Respondents accom- plished considerably more than the transfer of simply a nucleus of skilled employees. The antiunion impact should therefore be balanced against the purported justification given, and not by my colleagues' independent interpretation of contractual entitle- ments. Moreover, Alberici's desire to maintain a skilled work force would not have been frustrated by the application of the consent decree since the decree expressly reserves in the employer the right to be "the sole judge of whether the persons referred to them are capable of performing the work required." Respondents have made no attempt to justify their rejection of the Union's referrals on the basis of their qualifications. While it is apparent that this clause could not justifiably be used to mask continued discriminatory practices, my colleagues point to no facts or reasons to support their assertion that the consent decree would be sabotaged if employers were to be given any more than a limited degree of discretion to reject applicants on the basis of their skills. I therefore conclude that regardless what their original intentions were, this alleged justification is insufficient to counterbalance the severe discrimina- tory effect of the direct offers tendered all 25 of the laid-off employees. Respondents' second alleged business justification, their purported aim to avoid the impact of the consent decree, is not only insufficient, but unlawful. This justification amounts to an assertion of the right to continue the course of conduct found unlawful by the consent decree, and prohibited by it. The decree contained a provision allowing the Union 20 days to submit certain statements regarding rules, regula- tions, and requirements to the Equal Employment Opportunity Commission. This provision expressly stated that this 20-day period commenced as of the effective date of the decree. Respondents would have us distort the clear language of the decree so as to interpret it to mean the opposite, that the effective date of the decree was to lie at the termination of the 20-day period. It is clear that the decree was effective 9 My colleagues' reliance on lack of antiunion motivation on the part of Respondent Albenci seems misplaced. They joined me very recently in finding that Alberici violated Sec. 8(aX3) of the Act by refusing to hire an applicant because of that Respondent's union animus toward this same union.J. S. AlbericiConstruction Co., Inc., 231 NLRB 1038 (1977). upon its execution, as the consent decree was signed on a specific date and had no express effective date. It is inconceivable that documents intended to eliminate race or sex discrimination would be routinely drafted so as to provide the parties with more time, of indefinite duration, to discriminate just a bit more, as Respondents here contend. Clearly, if the decree was to become effective in the future, it would have expressly so stated. Furthermore, as noted above, the only definite period of time referred to in the consent decree was a 20-day period, which commenced as of the effective date of the decree, and not the reverse. Respondents' alleged attempt to avoid the impact of the decree would have resulted in a clear violation of the terms of the decree, had the Union bowed to the demands of Respondents. Therefore, the application of the decree could not have been avoided at the time of the layoffs, and Respondents' justification in this regard cannot be countenanced. My colleagues have indicated that in reaching these conclusions about the alleged business justifica- tions, I have rejected the Administrative Law Judge's credibility determinations regarding Respondents' motivations. This is inaccurate since, under Radio Officers' the employer's motivation for inherently discriminatory conduct is irrelevant and, a fortiori, need not be rebutted. Furthermore, inasmuch as the Administrative Law Judge never considered the sufficiency of the alleged business justifications, he has made no credibility determinations on this issue; but, in any case, this is not merely a factual issue the resolution of which may be dictated by credibility determinations. 9 Therefore, I conclude that Respon- dents' conduct was inherently destructive of employ- ee rights and thus constitutes a violation of Section 8(a)(3) of the Act, regardless of the absence of proof of specific intent to discourage union membership. N. L. R. B. v. Great Dane Trailers, Inc., supra. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charges herein were filed by Edward J. Gebhard and Floyd Brockmeier, herein called Charging Parties, against J. S. Alberici Construction Co., Inc., herein called Alberici, and Alberici-Koch Laumaud, joint venture, herein called AKL. The charges were filed against Respondents on July 28, 1975. The complaint was issued on May 26, 1976, alleging that Respondents violated Section 8(aXI) and (3) of the National Labor Relations Act, as amended, by discharging certain employees of AKL. An answer thereto was timely filed by Respondent on June 4, 1976. Pursuant to notice the hearing was held before me at St. Louis, Missouri, on June 23, 1976. Briefs have been filed by the General 1035 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel and Respondent, which have been duly consid- ered. I. EMPLOYERS' BUSINESSES Alberici and Koch Laumaud Contracting, Inc., are Missouri corporations both engaged in the business of building and construction as general contractors. During the year ending December 31, 1975, Alberici in the course and conduct of its business operations purchased and caused to be purchased, transported, and delivered to its Missouri jobsites building materials and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its jobsites in Missouri directly from points located outside the State of Missouri. Alberici and Koch Laumaud are and have been at all times material herein participants doing business as a joint venture as AKL. During the year ending December 31, 1975, AKL in the course and conduct of its business operations purchased and caused to be transported and delivered at its Jefferson County, Missouri, jobsite building materials and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to itsjobsite in Jefferson County, Missouri, directly from points located outside the State of Missouri. The complaint alleges, the answer admits, and I find that Alberici and AKL are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. LABOR ORGANIZATION The complaint alleges and Respondents in the answer admit that International Union of Operating Engineers, Hoisting & Portable Local No. 513, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES AKL employed some 25 operating engineers who were laid off on January 28, 1975. The complaint alleges that these layoffs were made because of a dispute between Respondents and the Union regarding hiring hall referral procedures, and thus violated Section 8(a)(3) of the Act. A. The Facts' By way of background, it appears that on September 8, 1971, a civil action involving the Equal Employment Opportunity Commission was brought by the U.S. Depart- ment of Justice in the U.S. District Court for the Eastern District of Missouri against several labor organizations including the Union and several contractor associations including the bargaining representative of Respondent. By order dated March 30, 1973, the contractor associations were dismissed from the suit. On January 20, 1976, a consent decree was executed in the case and filed in the same court. The relevant portion of the consent decree requires the labor organizations, including the Union, to refer job applicants to employers on a first-in, first-out basis only. This is contrary to the current collective- bargaining agreement in effect between Alberici and the Union since the collective-bargaining agreement permits the employer to select 50 percent of the unit employees by name (sec. 3.04). In early 1971 Alberici and AKL began work as a joint venture in the construction of an electric power plant at Rush Island, Jefferson County, Missouri. The operating engineers employed by AKL were furnished by Alberici and sometime in mid-1972 all of these operating engineers were transferred to the AKL payroll. From a peak of about 50 operating engineers, there were some 25 operating engineers employed by AKL on January 28, the date of the layoffs in issue. The events immediately preceding the termination began with a telephone call on January 27 from Arthur L. Bodine, equipment manager for both Alberici and AKL, to George Robertson, vice president of the Union who was then also business representative with responsibility for the geo- graphical area which included the Rush Island job. At Bodine's request, Robertson went to a meeting at Rush Island the next day, January 28, attended by several management representatives including Bodine. At this meeting Bodine advised Robertson that all 25 operating engineers presently employed by AKL were going to be laid off that evening in order to reemploy them the next day on the Alberici payroll. Bodine asked Robertson to see to it that 13 of the men as specified on a written list, be sent out the following day, to be placed on the Alberici payroll. Bodine also requested that the remaining 12 on the list also be referred if possible. Bodine's request was based on the referral procedures of the current contract referred to earlier, providing that employers could request referral of specified individuals by name not to exceed 50 percent of the bargaining unit. Robertson declined to agree to this proposal telling Bodine that he would have to go through normal referral procedures to secure the men after the layoff. It was Robertson's understanding of the Union's position as of January 28 that the right of employers to select employees under the contract had been superseded by the above- mentioned consent decree dated January 20. After this conversation with Bodine, Robertson called Wayne Hopkins, president and business manager of the Union, to advise him of Bodine's request. Hopkins confirmed that the Union was bound by the consent decree and that referrals were to be made from the top of the out- of-work list on a first-in, first-out basis and that they could not be referred to the Alberici payroll on the selective basis requested by Bodine. At the end of the day on January 28, all 25 operating engineers were laid off by AKL. At or about 6:30 on the morning of January 29, Bodine called Hopkins. He told Hopkins that the dispatcher was not dispatching the employees selected by him but was sending others. Hopkins reiterated the Union's position that it was obligated under the consent decree to send out job applicants on a first-in, first-out basis, despite conflict- I All dates refer to 1975 unless otherwise indicated. 1036 J. S. ALBERICI CONSTRUCTION CO. ing provisions in the collective-bargaining agreement. Bodine also argued that the decree did not go into effect until 20 days from the day it was signed, on January 20, so that the contract provisions permitting him to make selections by name had not yet been affected. Bodine also told Hopkins that he would not hire anyone referred who was not on the list of employees requested by him. Hopkins, while maintaining his position, consented to sending some of the men requested by Bodine, until he had checked with his attorney. After speaking to his attorney and being advised that the consent decree was in fact in effect, Hopkins stopped making any referrals to Alberici of men selected by Bodine. On the evening of January 29, Bodine personally telephoned each of the 25 operating engineers on the list of men requested by him and persuaded most of them to report on the morning of January 30 to work. These men were not referred by the Union and reported in contraven- tion to the Union's position. Together with those reporting on January 29, all but 3 of the 25 were working on the Alberici payroll as of January 30. Two of the missing three were Edward J. Gebhard and Floyd Brockmeier, the Charging Parties herein, who refused to return because of the consent decree, and one Lee Birdnow who has not been heard from. B. Discussion and Analysis The General Counsel contends that the 25 employees were discriminatorily discharged in violation of Section 8(a)(3) of the Act. The theory of this allegation appears to be that the layoffs were made because of a dispute between Respondents and the Union over the application of the consent decree to the contractual hiring procedures. Respondents, on the other hand, contend that the layoffs were made because the joint venture Rush Island job was winding down and it wanted at least half of these employees on the Alberici payroll to give it a nucleus of skilled employees with the flexibility of using them at other Alberici jobs without being restricted by the referral procedures of the contract. Respondents contend that this device was proper under the referral procedures of the current contract and that the transfer of these employees to the Alberici payroll would have been accomplished even if the consent decree did not exist. Respondents do however concede that another factor in its decision to switch payrolls did arise from the existence of the consent decree. Respondents recognized that the consent decree would have the legal effect of negating those contract provisions which permitted them some Respondents are not parties to the consent decree and are challenging the validity of the consent decree to the extent that it purports unilaterally to alter the collectie-bargaining agreement. This matter is lis pendens in the U.S, District Court for the Eastern District of Missouri. :' In making this finding I reject Respondents' contention that the layoffs would have taken place in any event The evidence here, particularly the conversations between Bodine for Respondents and Robertson and Hopkins for the Union, makes it clear that the layoffs were accomplished on January 28 in order to take advantage of what Respondents contend was the hiatus between the signing of the consent decree and its effective date dunng which time the collective-bargaining agreement would continue to govern employee referrals. freedom (50 percent) in the selection of employees as specified in the current contract. Bodine testified that it was his understanding based on the advise of counsel that the decree was not effective when executed but only after referral and membership rules had been drafted, promul- gated, and approved by the Equal Employment Opportuni- ty Commission. The decree provided 20 days after the effective date of the decree for approval of these written procedures by the EEOC. Respondents in order to protect against what it regarded as the prospective effect of the consent decree wanted to transfer the employees from the AKL payroll to the Alberici payroll to provide a skilled force of operating engineers to be utilized job-to-job by Alberici. Respondents' concern was that if the transfer of employees was accomplished later than 20 days from the date of the decree, the consent decree would, in substance, supersede the contract provisions concerning referral and Alberici would have no right of selection whatever but would have to take all referrals as they were sent by the Union on a first-in, first-out basis. 2 General Counsel argues that the 25 operating engineers were discharged because of a dispute between Respondents and the Union over the application of the consent decree to the contractual referral procedures. In my opinion this is an oversimplification of the motivation issue. While it was true that the Union and Respondents did disagree over the application of the consent decree, it was not this disagree- ment which moved Respondents to lay off the employees. After reviewing the entire record herein, I am satisfied that the layoffs were motivated by a desire on the part of Respondents to avoid the impact of the court decree on the collective-bargaining agreement by switching these em- ployees from the AKL payroll to the Alberici payroll prior to what Respondents contend was the effective date of the consent decree.3 In summary, I conclude that Respondents were not discriminatorily motivated under Section 8(a)(3) of the Act, and accordingly no unfair labor practice can be predicated upon Respondents' action in laying off these employees.4 CONCLUSION OF LAW i. Respondents have not engaged in any conduct violative of the Act. Upon the foregoing findings of fact and conclusion of law, I hereby issue the following recommended: ORDER 5 The complaint is dismissed in its entirety. 4 Respondents moved to dismiss the complaint as to Alberici on the grounds that the complaint contains no unfair labor practice allegation as to it. In view of my decision recommending dismissal of the complaint herein. I deem it unnecessary to pass upon this contention. I 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. 1037