M. W. Kellogg Constructors, Inc.

506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M. W. Kellogg Constructors, Inc. and Gilbert P. Smith United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada Local 250, AFL- CIO and Gilbert L. Smith. Cases 21-CA-21330 and 21-CB-8117 26 June 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 14 December 1984 the National Labor Rela- tions Board issued a Decision and Order in this proceeding 1 in which it found that the Respondent Employer violated Section 8(a)(3) and (1) of the Act by refusing to assign unscheduled overtime work to nonmembers of the Respondent Union (travelers) employed on the Shell Oil Project in Carson, California, from 1 March through 31 May 1982, and by laying off 129 travelers because they were not members of the Respondent Union. The Board also found that the Respondent Employer violated Section 8(a)(1) of the Act by informing employees on the Shell Oil Project that travelers could not be assigned overtime work and would be laid off from work prior to the shutdown phase of the project because they were travelers and not members of the Respondent Union; by informing a traveler that if he transferred his membership into the Respondent Union he would be eligible to work the shutdown phase of the project; by telling a traveler that the reason for his layoff was that the Respondent Union had given instructions that all the travelers were to be laid off; by telling a travel- er that the reason the traveler and other travelers could not work overtime was due to instructions from the Respondent Union; and by telling travel- ers that it was the policy of the Respondent Union that the Respondent Employer could not assign the travelers any overtime work. The Board further found that the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing or attempting to cause the Re- spondent Employer to violate Section 8(a)(3) and (1) of the Act by refusing to assign unscheduled overtime work to travelers, and by laying off trav- elers because they were not members of the Re- spondent Union. The Board also found that the Re- spondent Union violated Section 8(b)(1)(A) of the Act by threatening an employee with loss of em- ployment if he contested the Respondent Employ- 273 NLRB 1049 (1984). er's unlawful policy of laying off travelers because of their nonmembership in the Respondent Union; by telling employees checking in at the jobsite that they would not be assigned unscheduled overtime because the Respondent Union's members would do such work; by telling an employee that he had been assigned overtime because the foreman mis- takenly thought he was a member of the Respond- ent Union; and by refusing to permit applicants for employment who were registered for work at its exclusive hiring hall to examine its dispatch books. On a petition for review and a cross-application for enforcement of the Board's Order against the Respondent Employer, and a Board application for enforcement of the Board's Order against the Re- spondent Union, the United States Court of Ap- peals for the Ninth Circuit granted the petition for review, denied enforcement, and remanded the case to the Board. The court remanded the case to afford the Board the opportunity to make appropri- ate fmdings whether the General Counsel satisfied the burden of demonstrating that the statements relied on by the Board in finding 8(a)(3) and (1) and 8(b)(2) and (1)(A) violations signified prohibit- ed discrimination rather than innocent employment decisions.2 The court noted that neither the Board nor the judge made any explicit finding about the effect of the work force composition on the mean- ing of the words "traveler," "local hand," or "Local 250 member" on this particular job. The court stated that if the terms "local hand" and "Local 250 member" were synonomous with book I status, "the situationally ambiguous statements relied upon by the AUJ and Board might be insuf- ficient to demonstrate discrimination on account of local union membership." 806 F.2d 1435, 1442 (9th Cit. 1986). The Board thereafter accepted the court's remand and invited the parties to submit statements of position. The General Counsel and the Respond- ents have filed statements of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 2 The statements made by Kellogg foremen and umon stewards to travelers indicated that local hands or Local 250 members would receive unscheduled overtime but travelers would not, and that travelers would be laid off before local hands The Respondents contend, however, that these statements were merely a shorthand form of expression describing the practical effect of employment decisions conforming to a valid four. book dispatch system. The book system granted priority in dispatch in the following order. (I) journeyman pipefitters with 3000 hours of em- ployment in Local 250's area (II) journeyman pipefitters with 3000 hours in the area covered by the local agreement, (III) journeyman pipefitters with 3000 hours in California, and (IV) journeyman pipefitters with less than 3000 hours regardless of the place of employment. The court found that the General Counsel had the burden of disproving that the Respond- ent Employer relied on the four-book system m making layoff and over- time decisions. 284 NLRB No. 61 M. W. KELLOGG CONSTRUCTORS 507 Upon reconsideration of the record as a whole, including the court's decision, which the Board ac- cepts as the law of the case, the Board has decided to reaffirm its previous Order for the following reasons. In its previous decision the Board specifically re- jected the Respondent's 8(f)(4) defense. Supra 273 NLRB at 1050 fn. 8. The Respondents contended that the layoff and overtime policies giving prefer- ence to local members over travelers were a per- missible application of the four-book system and that the local members were lawfully favored based on the permissible criteria of length of serv- ice with the company, in the industry, or in the particular geographical area. The Respondents argued that when the Respondents' officials stated that local members would be favored over travel- ers, they were using those terms as shorthand for book I and books II-IV, respectively, and were merely indicating the fact that book I registrants were being favored for overtime and layoff pur- poses. The Board concluded, however, that in granting preference to local members over travel- ers, the parties did not, in fact, rely on the employ- ees' book dispatch priority, but instead relied only on the employees' union membership status. The Board found that the fact that book I consisted mostly of locals and books II-IV consisted of trav- elers does not make the Respondents' decision- making on the basis of union membership lawful. Upon reconsideration, we again reject the Re- spondents' 8(f)(4) defense and reaffirm our previous finding that the Respondent Employer's layoff and overtime decisions were, in fact, based on imper- missible union membership considerations rather than book dispatch priority. Although the record indicates that book I was composed almost entirely of Local 250 members and books II, III, and IV were composed entirely of travelers, 3 we cannot find that under the circumstances of this case the terms "local hand," "Local 250 member," and "traveler" were merely shorthand modes of expres- sion evidencing no intent to discriminate on the basis of local union membership as such. Despite the composition of the work force, it is clear from the record as a whole that the term "traveler" means a nonmember of the Respondent Union and that the term was used by the foremen in that sense. The Respondent Employer's construction su- perintendent Bertrand defmed traveler as a "Wourneyman that's brought in on a job that does not belong to the. . . Local that we are hiring out of" and foreman Barnes defined traveler as a The list of those employees laid off in April and May 1982 due to reductions in force indicates that book I was composed of all locals plus one traveler. Books II-IV consisted of travelers. "[s]omebody that belongs to a local other than Local 250." When the foremen selected employees for layoff or overtime, the foremen looked only at the employees' union .membership status. There was no evidence that a foreman ever asked an em- ployee before layoff which book he was in or checked with the hiring hall to ascertain the em- ployee's book status. Nor did the foremen ever consider the hours an employee worked on the Kellogg job itself to determine if the employee's book may have changed since dispatch and wheth- er he would be eligible for book I. For example, even though traveler Fernando Moore would have qualified for book I at the time of his layoff be- cause of his hours on the Kellogg job, he was, nev- ertheless, laid off with the other travelers. This is an indication that length of service was not the actual criterion being used for layoff selection.4 There are other indications that the terms "trav- eler" and "local" were not used as innocent short- hand for book dispatch priority but indicated dis- crimination on the basis of union membership. Foreman Stuart told traveler Cangi that he would receive overtime if he transferred into Local 250. Such a statement clearly indicates that union mem- bership rather than book dispatch priority was the critical factor which concerned the foreman. Furthermore, the judge found that Paul Foster, a book II traveler, was not laid off with the other travelers prior to the shutdown phase of the project because the foremen mistakenly thought he was a local. 5 The evidence supports this finding. In addition, the Respondent Union's steward, Richard Wareham, told a book II traveler, Michael Cangi, that the reason he had been assigned overtime was that the foreman mistakenly thought Cangi was a member of the Respondent Union. If the foremen had based their decisions on book priority, they would have ascertained that Foster was on book II and would have laid him off, and Cangi would not have received overtime. We find from the overall context and the record as a whole that, despite the work force composi- tion which shows a close but not complete identity between book I and membership in the Respondent Union, the statements by foremen and union offi- cials using the terms "traveler," "local hand," and "Local 250 member" refer to union membership status and not book dispatch priority, and that ev- eryone on the job understood them as such. We be- lieve that the statements indicating preference for 4 After his layoff Moore was placed on book I after verifying his hours. 5 The judge discredited General Foreman Cratsenburg's testimony that Foster was not laid off because the foremen mistakenly believed he was on book I. 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD locals over travelers clearly demonstrate discrimi- nation on the basis of local union membership status and are not innocently descriptive words de- monstrative of no intent to discriminate with re- spect to local union membership. The court stated that the "fact that Kellogg could have made substantially the same overtime and layoff decisions pursuant to the four-book system is irrelevant if in fact the decisions were made on the basis of other, prohibited consider- ations such as union membership." 806 F.2d at 1440. The relevant question, according to the court, is not whether the Respondents could have applied the four-book system to layoffs and over- time, but whether they actually did. If the Re- spondents actually did discriminate on the basis of union membership, the court stated that "they cannot immunize their conduct by citing section 8(f)(4) and the four-book system of hiring prefer- ence as a post hoc rationalization for prohibited conduct." 806 F.2d at 1440. We find that the General Counsel met the burden of disproving reliance on the four-book system. We find that the Respondents did, in fact, rely solely on union membership status for the layoff and overtime decisions. Accordingly, we re- affirm our previous Decision and Order- in its en- tirety. ORDER The National Labor Relations Board reaffirms its Order previously issued on 14 December 1986 and orders that Respondent M. W. Kellogg Construc- tors, Inc., Houston, Texas, its officers, agents, suc- cessors, and assigns, and Respondent United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 250, AFL-CIO, Garde- na, California, its officers, agents, and representa- tives, shall take the action set forth in the Order (273 NLRB 1049 (1984)).