Guy F. Atkinson Co.

GUY F. ATKINSON COMPANY 277 Guy F. Atkinson Company and Wright-Schuchart- Harbor, a Joint Venture and Teamsters Union Local No. 839, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 19- CA-11365 August 15, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 29, 1980, Administrative Law Judge William L. Schmidt issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Re- spondent filed a brief in opposition to the Charging Party's exceptions. 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, find- ings,' and conclusions 2 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- uct.r, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In agreeing with the Administrative Law Judge's conclusion that Re- spondent did not violate the Act. Member Jenkins does not rely on Stop and Shop. Inc., 161 NLRB 75 (1966). in which he dissented. Member Pen- ello notes that he concurred separately in Midwest Precision Castings Com- pony, 244 NLRB No. 63 (1979), relying on his dissenting opinion in Gould Corporation, 237 NLRB 881 (1978), enforcement denied 612 F 2d 728 (3d Cir 1979) In adherence to his analysis of the law as set forth in both of those opinions, Member Penello again emphasizes his views that an employer can lawfully hold a union steward to a higher standard of conduct than other employees because of the steward's responsibilities under the contract. Thus, an employer can lawfully discipline a steward for participating in an unprotected strike or slowdown by not attempting to bring such a work stoppage to an end. A fortiori, where, as in this case. the steward shirked his responsibilities and provided "his singular leader- ship of the illegal strike action," the steward can he lawfully disciplined by the employer. 251 NLRB No. 43 DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge: This matter was heard before me on January 7, 1980, at Kennewick, Washington. The hearing was held pursuant to a complaint issued by the Regional Director for Region 19 of the National Labor Relations Board on September 20, 1979,1 and is based on a charge which was filed against Guy F. Atkinson Company (hereinafter, together with Wright-Schuchart-Harbor, called the Re- spondent) by Teamsters Union Local No. 839, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (hereinafter called the Union), on May 8. The issues in this matter were joined by the Respondent's answer of October 22, wherein it denied the commission of the alleged unfair labor prac- tice. Upon the entire record2 in the case, including my ob- servation of the demeanor of the witnesses and upon consideration of the briefs filed by all parties, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent is a joint venture engaged in con- structing facilities for the Washington Public Power Supply System at Hanford, Washington (hereinafter called the Hanford jobsite or the jobsite). During the 12 months preceding the issuance of the complaint, which period is representative of all times material herein, the Respondent in the course and conduct of its business op- erations purchased and caused to be transferred and de- livered to its Hanford jobsite within the State of Wash- ington goods and materials valued in excess of $50,000 directly from sources outside the State of Washington, or from suppliers within the State of Washington which in turn obtained such goods and materials directly from sources outside the State of Washington. Based upon the foregoing and the entire record in this matter, I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce or in an in- dustry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find that it will ef- fectuate the purposes of the Act to assert jurisdiction herein. 11. THE I.ABOR ORGANIZATION The Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. ill. THE ISSUES The Respondent admits that it has refused to reemploy Robert Robinson at all times after April 13. The Re- I Where not specified. all dates are calendar sear 1"7q 2 The motion of the General Counsel to correct the tranicrlpl of this proceeding to reflect the correcl spelling of Dale Kas,,cldel nalle I, hereby granted GUY F. ATKINSON COMPANY 277 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent asserts that it was justified in refusing to reem- ploy Robinson because he actively led and encouraged a wildcat strike among the Respondent's warehouse em- ployees at its Hanford jobsite. 3 In the Respondent's view, the April 10 strike by the warehouse employees was related solely to two jurisdictional disputes involv- ing, inter alia, the Union. The General Counsel contends that the April 10 strike was precipitated, in effect, from the bottom up. It is the General Counsel's conclusion that certain warehouse em- ployees became disgusted with the principal warehouse supervisor and, as a consequence, quit work on April 10, en masse. The facts developed by the General Counsel show that Robinson, in his capacity as steward, sought to prevent the April 10 walkout and then finally suc- cumbed to pressures by his fellow employees and left work. When all of the warehouse employees were dis- patched back to the job on April 13, the Respondent was willing to reemploy all those who walked off on April 10 except Steward Robinson. Given Robinson's alleged active efforts to prevent the walkout on April 10 and the Respondent's action on April 13 in singling out Robin- son, the General Counsel and the Union urge that I infer that the reason the Respondent has refused to reemploy Robinson was because of his position as the Union's ste- ward. 4 Hence, plainly and simply, the issue here is whether or not the Respondent has refused to reemploy Robert Rob- inson at all times since April 13 because of his position as the Union's steward for the Respondent's warehouse em- ployees. For the reasons more fully described below, I find in agreement with the Respondent that the credible evidence herein supports the conclusion that the Re- spondent has refused to reemploy Robinson because he led the April 10 walkout. IV. IHF CREDIBL.E EVIDENCE A. Background The Respondent, a joint venture, is engaged in the construction of the general services buildings and the containment structures for two nuclear generating facili- ties for the Washington Public Power Supply System at Hanford, Washington. In connection with this activity the Respondent maintains a warehouse on the site to store material used in its construction operations. In April 1979, the Respondent employed approximately 13 employees on the two work shifts at its warehouse facili- ty.5 At the time involved here, the Respondent's jobsite offices for its management officials was approximately 100 yards away from the warehouse adjacent to the job- :" As used in this Dtecisionl, the term "wildcat strike" means a strike in iiolation of the no-strike provLision in the applicable collective-hbargaining agreement to which the Respondent anld the Union are hound he (ien eral Couinsel does not question the wildcat nature of the April 10 strike involved herein Such an inference would be necessary here as the General Counsel's case is built on circumstantial evidence entirely. " Ii April 1979, the das-shift hours were from 7 a m to 3:30 p m with a one-half hour lunch break provided fronm 11:30 to noon. Approximately 10 employees were emploled on that shift. The swing shift hours were from 3 30 to 11:30 p.m Approximately three employees worked on the swing shift site gate. This latter structure housed the Respondent's payroll office and the office of its project labor relations manager, Max Teuton. During the material times here, the warehouse operation was supervised by the Respond- ent's chief storekeeper, Walter Butler.6 Butler's immedi- ate superior was John Miller, the purchasing manager. Reporting to Butler was the warehouse foreman, Mike Devine, who was included in the bargaining unit. The alleged discriminatee, Robert Robinson, was ini- tially employed by the Respondent in May 1978, and was made steward by the Union in August 1978.7 Robin- son's brother, Bill Robinson, is the Union's business rep- resentative whose responsibilities include dealing with the Respondent on behalf of the warehouse employees. Also pertinent as background for the events which oc- curred on April 10 are three additional facts. First, the Respondent conceded at the outset of its case that Butler was not a popular supervisor in the eyes of its warehouse employees. In the Respondent's view, there was a signifi- cant conflict between Butler and the employees as to how the warehouse should operate.8 Secondly, approxi- mately 2 or 3 months prior to April 10, a work assign- ment dispute developed which resulted in a walkout by the warehouse employees. As described by Bill Robin- son, this dispute was essentially a jurisdictional dispute between the teamster employees and the electrician em- ployees. Bill Robinson testified that the dispute was re- solved pursuant to an existing agreement at the Interna- tional union level providing that teamster employees are to haul material from warehouse to warehouse and stor- age area to storage area. The Respondent's witnesses, Teuton and Butler, appeared extremely reluctant to tes- tify in this proceeding concerning this earlier dispute. In- sofar as the record herein provides an answer to Teuton and Butler's obvious reluctance to testify concerning the earlier dispute, it is that the Respondent, on April 10, chose not to adhere to the procedure described by Bill Robinson for the resolution of the prior dispute. Finally, in November 1978, Teuton, in his capacity as labor rela- tions manager, directed a letter to 10 craft unions, in- cluding the Union, which represented employees on the job, wherein he complained of a number of prior wal- kouts by employees over grievances and jurisdictional disputes before the dispute resolution mechanism pro- vided in the collective-bargaining agreements had been given an opportunity to function. In the same letter Teuton wrote as follows: Effective immediately [Respondent] is implementing the following policy regarding "walk-offs." Your Steward will be terminated immediately should he implement or effect a walk-off or leave the Project over a grievance or jurisdictional dispute. "No rehire" status will be imposed upon that individual for the duration of the Project. 6 A second individual, Roy Dark, was also classified as a chief store- keeper but his function and role in the Respondent's hierarchy was not explained nor is it relevant. I It also appears that the Union represents a unit of truckdrivers em- ployed by the Respondent at the jobsite. In April 1979, the steward for this unit was John 'Wardrobe T Ihe record supported the Respondelt's assertioi in this regard. GUN' F. ATKINSON COMPANY 279 B. The April 10 Events At approximately 8 a.m. on April 10, Teuton met with International representatives of the Union and the Inter- national Union of Operating Engineers at the Hanford House in Richland, Washington. The purpose of this meeting was to attempt to resolve a jurisdictional dispute which existed at the jobsite over the operation of a new piece of equipment being used in and about the ware- house as a forklift. This meeting lasted until about 10:45 a.m. and then Teuton returned to the jobsite and his office. A few minutes later Teuton encountered Robert Robinson near the coffee machine close to his office. Robinson inquired of Teuton as to the outcome of the morning meeting and Teuton advised him that the repre- sentatives of the two labor organizations had only agreed to disagree. Robinson next inquired as to which of the two organizations the work would be assigned and Teuton replied that only God and he knew. According to Teuton, Robinson reacted to this news with substan- tial anger and stormed out. 9 Butler testified that shortly after 11:30 a.m. he was on his way to his office in the mezzanine of the warehouse when Robinson stopped him on the warehouse floor. At that time, Robinson asked if they could use a truck to deliver embedded plates to the field and, further, if they could borrow a truck from the electricians to deliver their material. Butler immediately denied the request concerning the plates and told Robinson that he would check with Miller about the setup concerning deliveries to the electricians. 10 At approximately noon, Robinson returned to Teuton's office accompanied by the drivers' steward, John Ward- robe. There was further conversation at this time con- cerning the problem with the front-end loader. This con- versation lasted only a few minutes. Again Robinson is reported by Teuton to have become angry and both I reject as unworthy of belief Robinson's account concerning the motive for, and substance of. his first meeting with Teuton on this date. Based on Robinson's account, the meeting would have occurred much earlier at a time when Teuton was still meeting with the labor representa- tives at the Hanford House. Moreover, Robinson testified that he went to Teuton to plead with him to come out to talk with the warehousemen who were riled up because Butler had approached a couple of warehou- semen earlier that morning with a "a major case of the red ass." Colorful as Robinson's description may be of the problem he claims to have had as the steward that morning, a major case of the red ass is not the least bit informative. As described by complaining employee Dale Kasselder, they were having ,lrisdictional problems with the forklift and the harassment attributed to Butler was merely Butler's appearance at the yard where Kasselder was working. Moreover, I find Robinson's version of Teuton's response that he (Robinson) should tell the men to put up their crying towels and go back to work most improbable in view of Teuton's prior problems with walkouts. Finally, Robinson testified that he was initially approached that morning by Dale Kasselder who began his complaint about Butler's alleged actions that morning by saying, " thought you said that Miller said that this god damn problem is going to be taken care of." Such a statement appears inconceivable in light of Robinson's earlier testimony that Kasselder had been personally pacified only a few days earlier by Miller when he allegedly threatened to quit. in Butler's testimony concerning this encounter with Robinson is un- contradicted. Moreover, according to Butler, it was the Respondent's policy that deliveries from the warehouse were not to be made by the warehouse employees. Rather. such deliveries, according to Butler, are made by the teamster drivers. Butler testified that among the complaints he had received from the warehouse employees was a complaint that warehousemen should be permitted to make deliveries to the field Wardrobe and Robinson concluded the conversation by walking out. Although Robinson and Wardrobe were called as witnesses during the General Counsel's case-in- chief and Robinson was called in rebuttal, no inquiry was made of either at any time concerning a joint meet- ing with Teuton. In these circumstances, I credit Teu- ton's account of his first post-lunchtime meeting with Robinson. Subsequent to the second meeting with Teuton, Robin- son met with some of the warehouse employees near the entrance to the warehouse. What occurred at this time is disputed by witnesses from both sides. Given the unrelia- bility of Robinson's testimony about other events as noted above and the fact that his testimony with respect to this meeting continues in the same vein, to wit, that he was pleading with employees not to walk off, I find his testimony in this regard to be unreliable also. At least three individuals aligned with the Respondent heard parts of this meeting. Ted Kurtz, then a management trainee with the Respondent, testified that he walked by the group on his way to his office. He observed Robin- son in the middle of a circle of five or six employees. According to Kurtz, Robinson's face was red and he ap- peared angry. Kurtz heard Robinson state, "I'm fed up. I can't stand it anymore. I'm going." Kurtz then proceed- ed on into the warehouse." Butler also testified that he came upon this meeting. Butler placed the time at some- time between noon and I p.m. At the time Butler had re- turned to his office from Miller's office where he had discussed the deliveries to the electricians. He observed the noise level in the warehouse had diminished so he went to the warehouse floor where he came upon Robin- son's meeting with the warehouse employees. Butler ap- proached the group and told Robinson that everything was arranged, the electricians would be there at 2 p.m. to pick up their material. Butler recalled that Robinson asked him a couple of questions but he did not recall the substance of those questions. Butler testified that he re- called responding to one of Robinson's questions by saying that involved a management prerogative. Robin- son, according to Butler, also addressed the group in his presence saying that they needed a new foreman, that he wanted a new foreman now, that he was ready to quit and that they had to do something right now. In general, Butler recalled that Robinson was talking about getting the foremanship and the truck situation resolved. At that point, Butler started to walk away in the direction of his office. As he was departing, Butler heard Robinson state that he wanted George Wright and John Dean there-he wanted all the teamsters together.' 2 Upon returning to his office, Butler telephoned Foreman Devine and told him that he was needed immediately out in the ware- house. ": Kurtz, at the time of the hearing, was no longer employed by the Respondent. Apart from this fact, Kurtz impressed me as a witness who was attempting to be forthright and objective in his testimony A short period after Butler telephoned Devine, he observed the entire group of 9 or 10 day shift warehousemen leave the back of the warehouse. 12 right was a counterman in the warehouse. Dean, a warehouse- man, was assigned a task at this particular time which involved driving a pickup to town to haul some material back to the warehouse. He was called from the pickup to join the meeting GUY F. ATKINSON COMPANY 279 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Teuton, at approximately 12:50 p.m., he received a telephone call from Ollie Warren, the paymas- ter, who reported that there were a number of teamsters in the pay office quitting. Teuton left his office and went to the warehouse. When he arrived, Butler, Devine, and Wardrobe were standing on a dock apron at the end of the warehouse. He began questioning Butler as to what was going on and after a few minutes he observed Rob- inson coming from the direction of the pay office. Teuton attempted to find out what the problem was from Robinson. All Teuton was able to learn from Rob- inson was that the warehousemen had all quit because they were not being allowed to do what they were hired to do. Robinson told Teuton that he (Teuton) could not stop the men from quitting and Teuton responded by saying, "Well, Bob, I understand I can't stop anybody from quitting, but if you quit and leave the project, you are aware . . . you're in violation of the agreement and the letter." Robinson replied, "I know." After a few sec- onds, Robinson turned and left the project. Teuton said he was then informed by Wardrobe that he would be leaving at the end of the shift. a Subsequently, Teuton was provided by Butler and Dark with written reports of the day's events. On the basis of these written reports and his own conversations with Robinson on April 10, Teuton concluded that Rob- inson was responsible for causing the walkout that day. Accordingly, he decided that Robinson would not be reemployed. On Friday, April 13, the entire crew was dispatched back to the project. When Robinson attempted to turn in his dispatch at the paymaster's office, Warren advised Robinson that his dispatch would not be accepted. Rob- inson then went to Teuton's office to speak to him about the matter and was told by Teuton that, as long as he was on the job, he (Teuton) would not take his dispatch. When Robinson advised the other warehousemen of this fact, they all left the project again. According to Kas- selder, the warehousemen had agreed at a prior meeting that, if anyone was not taken back, none would remain on the job. However, the following Monday, all of the warehousemen except Robinson were dispatched back to the job and all who renorted (including the drivers' ste- ward, Wardrobe) were put back to work by the Re- spondent. Robinson was again dispatched to the project several days later and again his dispatch was refused. Conclusions Based on the foregoing and the entire record, I am sat- isfied that the General Counsel has failed to establish by a preponderance of the credible evidence that Robinson has been denied reemployment because of his position as steward. To the contrary, the evidence here establishes clearly that Robinson actively pursued desired work as- a' Subsequently. on cross-examination, Teuton's version of his conver- sation with Robinson varied slightly in that he testified that he asked Robinson if he were aware if he (Robinson) quit the teamsters would not work without a steward. To this Robinson replied "1 know." This latter version was corroborated by the Respondent's personnel manager, Frank Nicholson. I do not find this variance significant especially where, as here, neither Wardrobe nor Robinson was questioned at all concerning this conversation signments on behalf of the warehousemen and when his attempts were frustrated over two separate items (the forklift and the truckdriving) on April 10, he called the warehousemen together and advised them that he was quitting. I find that this action served as a signal for the other warehousemen to follow his lead. Based upon his investigation, Teuton came to the same conclusion and decided that, as Robinson had caused the April 10 wal- kout, he would not be reemployed. The conclusion that Robinson's discipline resulted from his singular leader- ship of the illegal strike action as opposed to his status as steward is further reinforced by the evidence that Ste- ward Wardrobe, who also left the project at the end of the day and again walked out when Robinson's dispatch was refused on April 13, was reemployed on the follow- ing Monday. Moreover, I find the scenario presented by the evidence adduced in the General Counsel's case to be highly improbable and unworthy of belief. If in fact certain employees were quitting because of their dissatis- faction with Butler, there does not appear a rational basis for them to taunt others to quit. In addition, Robinson testified that he warned the disgruntled employees not to quit their high paying jobs and if they did the Union would not be able to do anything for them. I find these arguments totally inconsistent with Robinson's action in leaving the job on April 10. Under the circumstances present here, I find that Robinson was denied reemploy- ment for just cause and that the Respondent did not thereby violate Section 8(a)(l) and (3) of the Act, as al- leged. Midwest Precision Castings Company, 244 NLRB No. 63 (1979); Chrysler Corporation, Dodge Truck Plant, 232 NLRB 466 (1977); Stop and Shop. Inc., 161 NLRB 75 (1966). CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times since April 13, 1979, the Respondent has refused to reemploy Robert Robinson because of his action in causing the Respondent's warehouse employees to engage in a strike commencing on or about April 10, 1979, in violation of the no-strike provision of the collec- tive-bargaining agreement to which the Respondent and the Union were bound. 4. The Respondent's refusal to reemploy Robert Rob- inson for the reasons specified above in paragraph 3 was for just cause and not in violation of Section 8(a)(1) and (3) of the Act. Pursuant to Section 10(c) of the Act and upon the foregoing findings of fact, conclusions of law, and the entire record herein, I hereby issue the following recom- mended: GUY F. ATKINSON COMPANY 281 ORDER 1 4 It is hereby ordered that the complaint herein be, and the same hereby is, dismissed in its entirety. ' In the event no exceptions are filed as provided hby Sec. 12.46 of the Rules and Regulations of the National Labor Relations Board, the finding., conclusions, and recommended Order herein shall, as prosided in Sec 102 48 of the Rules and Regulalions. he adoplted hy he BHoard and becolme i findings. conclusions. atnd Order, and a;ll oblhction l Ihltcrll shall he deemed sA aied for all purpocs