Del E. Webb Construction Co.

National Labor Relations Board - Board Decisions

Jul 23, 1951

95 N.L.R.B. 377 (N.L.R.B. 1951)

DEL E . WEBB CONSTRUCTION COMPANY 377
in the aforesaid unit, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8 ( a) (5) of the Act.
5. By such conduct , including its unilateral acts found above, Respondent has
interfered with, restrained , and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act , and has thereby engaged in , and is engaging
in, unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
DEL E. WEBB CONSTRUCTION COMPANY and WILLIAM H. PICKARD
INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND PORT-
ABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY, A. F.
OF L. and WILLIAM H. PICKARD. Cases Nos. 17-CA-251 and 17-CB-
20. July 23, 1951
Decision and Order
On April 17, 1951, Trial Examiner Max M. Goldman issued his
Intermediate Report in this consolidated proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent Company and
the Respondent Unions filed exceptions to the Intermediate Report
and supporting briefs.
The Board 1 has reviewed the rulings made at the hearing by the
Trial Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,3 conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, modifications, and
additions noted below.
i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Reynolds,
and Styles].
2 We find no merit in the Respondents ' exceptions to the denial by the Trial Examiner of
the Respondent Company's motion to vacate the hearing on the ground that it was entitled,
under Federal Rule 26 (a), to take a deposition of the charging party. The provision in
Section 10 (b) of the Act merely provides that any complaint "proceeding shall , so far as
practicable , be conducted in accordance with the" Federal Rules of Civil Procedure, and
clearly relates to the introduction of evidence before the Board, and not to pretrial
privileges accorded parties to judicial proceedings . See Representative Hartley's state-
ments in 93 Daily Cong. Rec. 3588 (April 16, 1947) ; Senator Taft ' s statements, Id. at
6676 ( June 6 , 1947) and 7002 (June 12, 1947).
3 For the reasons stated in Del E. Webb Construction Company, 95 NLRB 75, we
reject the Respondent Union's contention that the Respondent Company is not engaged in
commerce within the meaning of the Act.
95 NLRB No. 57.
378 DECISIONS' 'OF NATIONAL LABOR RELATIONS BOARD
1. Like the Trial Examiner, we find that the Respondent Company
discriminated against William H. Pickard in violation of Section S
(a) (3) and 8 (a) (1) of the Act, by terminating his employment
.because he was a member of Hoisting and Portable Local 101-B of
Greater Kansas City and Vicinity and not a member of Respondent
Local 1014 We premise our finding on the following facts established
by the record :
On December 21, 1949, after the Respondent Union's job steward,
Earl Thompson, told Pickard that he had been "bumped," Pickard
went to the Respondent Company's office where he told the Company's
superintendent, Jack Neil, that he had been told that another older man
was going to take over his job. Although Neil protested that he
".should be able to keep" a man who suited him, he implicitly conceded
the Union's power to choose employees for him, by asking Pickard to
stay around while he found out what he could do and then calling the
union hall to tell the Respondent Union's business representative, Ham-
ilton, that Pickard "had done the job satisfactorily and he would like
to keep him." After the phone conversation, Neil informed Pickard,
"I don't think it looks like I am,going to be able to do you any good,
Hank, Mr. Hamilton said he had some older men he was going to have
to take care of first." Pickard then suggested that he might be per-
mitted to work the machine at the Respondent Company's job site if he
went back on the payroll of Shaw, the lessor of the machine, and the
one who had loaned Shaw to the Respondent Company to operate the
rented equipment. Neil then called Shaw to ask if there was "some
way [Shaw] could fix it so he could keep Pickard on the job." Shaw
also called Hamilton who told him, "you know the job has started and
there was quite a few of our other men out there, and we'll see what we
can do."
A day or two before Christmas, Hamilton came out to the job site and
told Neil that it would be necessary to place an A-card holder from the
night shift, which was being disbanded, on the hi-loader instead of
Pickard who held only a B card. According to Neil's deposition, he
told Hamilton that he did not agree with that principle but, if it "was
the union rulings, their local rulings and by-laws," he would "abide by
it."
On December 30, Pickard went out to the -Del Webb job site. Neil
again called Hamilton. After he finished talking on the phone, Neil
said, "Well, it don't look like I'm going to be able to do you any good."
4 Where the fact of employment depends entirely on membership in Local 101 as opposed
to 101-B, it is obvious that 101 and the separately chartered 101-B are not the same, and
that disparate treatment based on that fact discourages membership in 101-B, encourag-
ing membership in 101, whether or not membership in 101 was available to the discriminatee.
See the Intermediate Report in Sub Grade Engineering Company , 93 NLRB 406, involving
the Respondent Union.
DEL E. WEBB CONSTRUCTION COMPANY 379
Pickard then told Neil that he was going down to the NLRB " and see
what they can do." Neil approved.
Basically, the Respondent Company's position is that prior to any
discussion with Union Representative Hamilton, Neil had decided to
dispense with the hi-loader for reasons wholly unrelated to any request
by the Union to replace Pickard. Such a view does find some support
in certain testimony of Neil, but, like the Trial Examiner, we are
persuaded that a preponderance of the testimony in the record makes
such version of the facts untenable. In particular we are impressed
with the fact that Neil made a deliberate effort to avoid the impact
of the Union's seniority rule on Pickard by contacting Shaw for sug-
gestions as to how to keep Pickard on the job. Clearly, Neil would
not have made that effort if he had already decided to dispense with
the services of Pickard.
While the operations on the project were virtually shut down in
the period immediately following December 30, 1949, because of
weather conditions, we are nevertheless satisfied that Pickard's em-
ployment was effectively terminated by Neil in the above-noted con-
versation of December 30, and that this was done because Neil was
convinced that the Respondent Union would not approve Pickard
as an operator when the hi-loader was put back into operation. By
so relinquishing to the Union its control over the employment of
Pickard and effectuating a discriminatory discharge, the Respondent
Company violated Section 8 (a) (3) of the Act.
2. We also agree with the Trial Examiner that the Respondent
Union caused the discrimination against William H. Pickard, thereby
violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act. On the
facts set forth above and the record as a whole, we are convinced that
but for the Respondent Union's refusal to waive or modify its trade
rule requiring preferential employment for full-fledged as opposed
to apprentice members,5 with which the Company had agreed to abide,
Pickard would not have been discharged. Thus the Union's statement
of its rules was tantamount to a request for the discrimination which
followed e In that manner the Union "caused" the violation of Section
8 (a) (3), thereby violating Section 8 (b) (2) and 8 (b) (1) (A).
Upon the entire record in the case and pursuant to Section 10 (c)
.of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent Company, Del E.Webb Construction Company,
Kansas City, Missouri, its officers, agents, successors, and assigns,
shall :
5For the reasons stated in American Pipe and Steel Corporation , 93 NLRB 54,. we find
no merit in the Respondent Union's contention that the Local 's desire to enforce an alleged
obligation of union members is material.
6 See Del E. Webb Construction Company, supra ; Sub Grade Engineering Company, supra.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Cease and desist from :
(1) Encouraging membership in the International Union of Oper-
ating Engineers, Hoisting and Portable Local No. 101 of Greater
Kansas City and Vicinity, A. F. of L., or any other labor organization,
by discriminating in regard to the hire and tenure of its employees,
or any term or condition of their employment, except to the extent
permitted by the proviso to Section 8 (a) (3) of the Act.
(2) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(1) Offer William H. Pickard immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(2) Jointly and severally with the Respondent Union make whole
the said William H. Pickard for any loss of pay he may have suffered
by reasons of its discrimination against him, in the manner set forth
in the Intermediate Report.
(3) Post at its construction offices in Kansas City copies of the
notice attached hereto marked "Appendix A."' Copies of said no-
tice, to be furnished by the Regional Director for the Seventeenth
Region, shall, after being duly signed by the Respondent Company's
representative, be posted by it immediately upon reecipt thereof and
be maintained by it for a period of at least sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent Company to insure that said notices shall
not be altered, defaced, or covered by any other material.
(4) Upon request, make available to the Board or its agents all
pertinent records necessary to insure expeditious compliance with
said recommended order.
(5) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Decision and
Order, what steps it has taken to comply herewith.
2. The Respondent Union, International Union of Operating En-
gineers, Hoisting and Portable Local No. 101 of Greater Kansas City
and Vicinity, A. F. of L., its officers, agents, representatives, suc-
cessors, and assigns, shall :
a. Cease and desist from :
(1) Causing or attempting to cause Del E. Webb Construction
Company, Kansas City, Missouri, its officers, agents, successors, or
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
DEL E. WEBB CONSTRUCTION COMPANY 381
assigns, to discriminate against its employees in violation of Section
8 (a) (3) of the Act.
(2) In any like or related manner restraining or coercing em-
ployees of the Del E. Webb Construction Company, its officers, agents,
successors, or assigns, or any other employer in the exercise of the
rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Notify the Del E. Webb Construction Company in writing,
and furnish a copy to William H. Pickard, that it has no objection
to his employment by the Respondent Company.
(2) Jointly and severally with the Respondent Company make
whole William H. Pickard for any loss of pay which he may have
suffered by reason of the discrimination against him, in the manner
set forth in the Intermediate Report.
(3) Post at its, offices in Kansas City, 1Vlissour}, and in other con-
spicuous places, including all places where notices to members are
customarily posted, copies of the notice attached hereto marked "Ap-
pendix B." 8 Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall, after being duly signed
by the Respondent Union's representative, be posted by it immedi-
• ately upon receipt thereof and maintained by it for a period of at
least sixty (60) consecutive days thereafter. Reasonable steps shall
be taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(4) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice attached hereto and marked "Appendix
B," for posting, the Respondent Company. willing, at the construction
offices and place of business of the Respondent Company in Kansas
City and vicinity,.in places where notices, to be furnished by the
Regional Director for the Seventeenth Region, shall, after being
signed as provided in paragraph 2, subparagraph b (3) of this Order,
be forthwith returned to the Regional Director for such posting.
(5) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Decision and
Order, what steps the Respondent Union has taken to comply
herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that:
O See footnote 7, supra.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT encourage membership in INTERNATIONAL UNION
OF OPERATING ENGINEERS , HOISTING AND PORTABLE LOCAL No. 101
OF GREATER KANSAS CITY AND VICINITY, A. F. OF L., or any other
labor organization, by discriminatorily .discharging any of our
employees or discriminating in any other manner in regard to
their hire or tenure of employment or any terms or conditions of
employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act.
WIN WILL offer William H. Pickard immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges pre-
viously enjoyed; and we will make him whole for loss of pay
suffered as a result of the discrimination against him.
All of our, employees are free to become, remain, or refrain from
becoming or remaining, members. in good standing of the above-
named union or any other labor organization, except to the extent that
such right may be affected by an agreement in conformity with Sec-
tion 8 (a) (3) of the Act.
DEL E. WEBB CONSTRUCTION COMPANY,
Employer.
By -----------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not -be altered, defaced, or covered by any other material.
Appendix. B
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING EN-
GINEERS, HOISTING AND PORTABLE LOCAL No. 101 OF GREATER KANSAS
CITY AND VICINITY, A. F. OF. L. AND To ALL EMPLOYEES OF THE DEL
E. WEBB CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause DEL E. WEBB CONSTRUC-
TION COMPANY, Kansas City, Missouri, to discharge or otherwise
discriminate against employees in regard to their hire or tenure
of employment or any term or condition of employment to en-
DEL E . WEBB CONSTRUCTION COMPANY .383
courage membership in any labor organization in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of the DEL E . WEBB CONSTRUCTION COMPANY, its SUC-
cessors or assigns, or any other employer in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL notify DEL E. WEBB CONSTRUCTION COMPANY In writ-
ing, and furnish a copy to William H. Pickard, that we have no
objection to his employment by.the company.
WE WILL make whole William H. Pickard for any loss of pay he
may have suffered because of the discrimination against him.
INTERNATIONAL UNION OF OPERATING ENGINEERS, HOIST-
ING AND PORTABLE LOCAL No. 101 OF GREATER KANSAS
CITY AND VICINITY, A. F. OF L.,
By ---------------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by William H. Pickard , the General Counsel, by the
Regional Director for the Seventeenth Region ( Kansas City ,.Missour̀i), issued
an order consolidating these cases and a consolidated complaint on August 30,
1950, against Del E. Webb Construction Company, herein called the Respondent
Company, and International Union of Operating Engineers , Hoisting and Port-
able Local No. 101 of Greater Kansas City and Vicinity , A. F. of L., herein called
the Respondent Union, alleging that the Respondent Company and the Respond-
ent Union have engaged in unfair labor practices affecting commerce within the
meaning of Section 8 ( a) (3) and _ 8 (a) (1) and Section 8 (b) (2) and 8 (b)
(1) (A), respectively , and Section 2 (6) and ( 7) of the , Labor Management
Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the charges,
the complaint , the order consolidating cases, and notice of hearing were duly
served upon the Respondents and the charging party.
With respect to unfair labor practices, the complaint alleged in substance that
on or about December 21, 1949, the Respondent Union attempted to cause and on
or about December 23 caused the Respondent Company to discharge William
H. Pickard because he was not a member of the Respondent Union . The re-
spective answers of the Respondents deny the commission of any unfair labor
practices.
Pursuant to notice , a hearing was held at Kansas City , Missouri , on Decem-
ber 12 and 13, 1950, before the undersigned , the Trial Examiner designated by
the Chief Trial Examiner. The General Counsel and the Respondents were
represented by counsel . Full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing upon the issues was
Labor Organization.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afforded the parties. The General Counsel and the Respondents presented oral
argument at the close of the testimony and submitted briefs. The Respondent
Company also submitted proposed findings of fact and conclusions of law'
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Del E. Webb Construction Company; an Arizona corporation, with a principal
office at Phoenix, Arizona, and a branch office at Los Angeles, California, is en-
gaged in general construction contracting in various States. At the present the
Respondent Company is engaged in construction projects in the States of Ari-
zona, California, Colorado, New Jersey, and Missouri, each of which represents a
contract price of several million dollars. The Respondent Company's Kansas
City, Missouri, job, the locale of the events here involved, is the construction of
a Veterans Administration hospital for an 'approximate contract price of
$8,000,000. The project was started in September 1949 and has an estimated
construction period of about 2 years. In the construction of this facility the
Respondent Company uses general building materials such as sand, rock, cement,
steel and metal products, brick, lumber, tile, electrical products, plumbing,
heating, and air-conditioning materials and- supplies valued in excess of
$1,200,000. An amount of these materials valued in excess of $600,000 originates
outside the State of Missouri and is shipped directly to the Respondent Com-
pany at its Kansas City project. This value of these materials,does not include
the materials which are supplied to this project' by subcontractors, some of
whom are located in 10 different States other than the State of Missouri. The
undersigned finds that the Respondent Company is engaged in commerce within
the meaning of the Act.
1 In its proposed conclusions of law and in a motion to vacate the hearing , the Respondent
Company seeks reconsideration of a ruling made at the hearing denying an application
to take a pretrial deposition of William H. Pickard, the charging party who was present
at the hearing. The Respondent Company points out that before the hearing commenced
similar applications had been made to the Regional Director and that ' these applications
had been opposed by the General Counsel and denied by the Regional Director. The
Respondent Company contends that under these circumstances it has been deprived of the
bearing provided for by the Act. Basically the disagreement between the Respondent
Company and the General Counsel concerns the validity of the Board 's Rules and Regula-
tions requiring a showing of good cause to obtain an order. for a deposition. The
Respondent Company contends that Section 10 (b) of the Act makes the Federal Rules
of Civil Procedure applicable and that under Section 26 (a) of the Federal Rules it has
an unqualified right to take the deposition of Pickard before trial. The General Counsel,
on the other hand, in effect contends that Section 10 (b) of the Act makes the rules of
evidence ( such as Rule 43 ) of the Federal Rules applicable so far as practicable, and
that matters of pretrial depositions do not fall within the concept of rules of evidence
but within the concept of rules of procedure as a method for obtaining evidence. The
General Counsel does not, as the Respondent Company points out, show that in unfair
labor practice proceedings generally or in this proceeding in particular it would not be
practicable to follow the Federal Rules as to pretrial depositions. It does not appear
whether because the General Counsel relies only upon a distinction between rules of
evidence and rules of procedure or because he does not purport to speak for the Board,
that he does not urge, that in any event the Board in formulating its Rules and Regulations
under Section 6 of the Act to carry out the Act's provisions and in establishing a procedure
for depositions concluded that the Federal Rules in this respect were not practicable. The
undersigned assumes the validity of the Board's Rules and Regulations and not being
persuaded that good cause under these Rules has been shown, hereby reaffirms his prior
ruling and denies the instant motion. ' '
DEL E. WEBB CONSTRUCTION COMPANY
II. THE LABOR ORGANIZATION INVOLVED
385
International Union of Operating Engineers , Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity , A. F. of L., is a labor organization
admitting to membership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In October 1949, shortly after the Respondent Company commenced operations
at the hospital project involved, John P. Neil, the then construction superintend-
ent, met with the local Building Construction Trades Council of Kansas City,
Missouri. Neil, who has been a construction superintendent for about 22 years
and has travelled to various of Respondent Company's jobs, explained that it was
customary for him when he arrived at a city to engage in a building job to call
upon the local Building Trades Council, the same as he would call upon, for
example, the lumber dealers, because not knowing of any other labor supply he
would obtain the labor for the job from the local Council. At this meeting he
met various of the American Federation of Labor Building Trades organizations
who were there represented. There is no contract between the Respondents re-
quiring membership in the Respondent Union as. a condition of employment.
Neil explained that he considered it part of his job to create harmony and to get
along with people and that he usually accomplished this by observing union
"working rules or any other law in the land."
Among the building trades utilized on the job was that of the operating engi-
neers who- performed certain of the excavating work which included operation
of such equipment as air compressors and a hi-loader. A hi-loader appears to
be an application or an adaption of the bulldozer so arranged that it can lift,
load, and move earth. Beginning about November 21, 1949, the hi-loader which
was used at the project by the Respondent Company was operated by William
H. Pickard, the charging party. Pickard had formerly been employed by the
George Shaw Hauling Company, the Respondent Company's lessor of equip-
ment. Pickard had been operating the hi-loader for the Shaw people for about
2 years and when it was rented to the Respondent Company, Pickard delivered
the machine and became the Respondent Company's employee.
Pickard is a holder of a membership card in Local 101-B, which is a subcharter
organization established for organizing purposes in 1934 under the Respondent
Union. Local 101-B has about 1,500 members and the Respondent Union has
about 140 members. The officers in the Respondent Union serve as officers of
Local 101-B, but the members of Local 101-B have no voice in their selection.
One of the benefits of membership in the Respondent Union, which the General
Counsel views as having vital significance in this proceeding, is the effect of the
operation of a seniority rule of long standing under which in the event of a per-
manent layoff or reduction in force, members of the Respondent Union have the
right to displace Local 101-B men regardless of seniority on the job. This rule
has no application in the event of layoffs due to bad weather or due to the neces-
sity for making repairs on machines.
. About a week before Christmas 1949, the Respondent Company determined
to terminate its night shift air-compressor operations, necessitating the perma-
nent layoff or termination of some of the operating engineers, apparently two
men. At about this time Kenneth Hill, general carpenter foreman at the project,
informed the Respondent Union's job steward, Earl Thompson, of the situation
and that there was going to be a curtailment of the night shift air compressors.
386 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Thompson thereupon informed Hill of the Respondent Union's seniority rule
related above, and stated that Pickard, who worked on the day shift and was
the only one who operated the hi-loader on the job, would have to go as lie was
a member of Local 101-B and there were journeymen or members of the-Respond-
ent Union who could fill his place. Thompson made no threats whatever in his.
conversation with Hill to insure enforcement of this seniority rule.
In the morning of apparently Wednesday, December 21, the day a snow and
sleet storm for all practical purposes closed down operations at the project,
Thompson told Pickard that he had been "bumped." Thompson explained the
seniority rule to Pickard stating that if he wanted more information he would
have to see Charles G. Hamilton, business representative of the Respondent
Union.
After Pickard remonstrated with Thompson, he complained to Neil explaining
what had occurred and that he was to be displaced by another man. Neil, who
considered Pickard an able and conscientious employee, indicated his objection
to the change, stating that he should be the one to decide these matters and that
he should be able to keep the man who suited him. Pickard suggested as a solu-
tion to the problem that he be returned to the payroll of Shaw, the equipment
lessor, and continue working on the hi-loader. Neil thereafter telephoned Shaw,
with .whom he had an understanding that the hi-loader would be operated -by
the man Shaw had sent with the machine, explained the situation, and asked
if there were some arrangement that could be made to keep Pickard on the job.
Shaw, who had received Hamilton's approval when he had first sent Pickard
and the hi-loader to the job in November, called Hamilton about the matter.
Hamilton stated that he would see what he could do. Shaw concluded the con-
versation by stating to Hamilton that if he, Hamilton, did not keep Pickard on
the job, Shaw would like a good man put on the machine as it was an old one
and Pickard had been the only one who had been operating it for some time.
Pickard, at Neil's and Hill's suggestion, appeared at the project the next few
days. On one of these days Neil stated that they might yet find something for
him to do. On Friday, December 23, Neil told Pickard to take the hi-loader out
and do some ice and snow removal work. Before Pickard undertook the assign-'
ment Neil gave him assurance that he, Neil, would stand behind him in the event
of difficulties with the Respondent Union. This was the last occasion upon
which Pickard operated the hi-loader on the project. As was customary in the
operation of the Respondent Company's business, no termination slip was issued
to Pickard as he had no wages coming to him and his name merely did not ap-
pear on the payroll .2 Because of weather conditions comparatively little work
was done on the project from the day Pickard was told that he was being re-
placed by a Respondent Union man until the first few days in January 1950.
About a day or two before Christmas, while operations at the project were
practically at a standstill because of weather conditions, Hamilton came to the
project to see Neil. Hamilton explained to Neil that under the Respondent
Union's seniority rule it would be necessary to put a member of the Respondent
Union on the hi-loader instead of Pickard, who was a Local 101-B man. Neil
told Hamilton that he disagreed with that principle, but if that was the Re-
spondent Union's rule he would abide by it. Neil also pointed out to Hamilton
that the men he referred to as members of the Respondent Union were older
and could not stand the jostling and bumping on that machine. At the close of
9 Pickard worked last on December 23, but he was given a day's pay on December 29,
apparently for the purpose of equalizing a deficiency which had been discovered in prior
wage payments or because he had come out to the job several times at Neil's and Hill's
suggestion.
DEL E. WEBB CONSTRUCTION COMPANY 387
the conversation Neil told Hamilton that when they resumed operations be'
would abide by the Respondent Union's rules, and they parted on friendly
terms.' Neil explained in his testimony that there was no disposition of the
issue with Hamilton because Neil did not know when they would resume opera-
tions. Neil also explained that there was no occasion to do anything about the
situation, that the bad weather continued until he left the Respondent Company
about January 4, 1950, and that the bi-loader was not put into operation during
that period.
On December 30, Pickard went out to the project and told Neil that he was-
going to the Regional Office of the Board to see what it could do for him. Neil
stated that it would be all right for Pickard to use his name. When Pickard re-
turned he asked Neil his view about filing a charge against the Respondent.
Company in addition to the Respondent Union. Neil stated that if it would.
do any good, it was all right for Pickard to file charges against Neil, too..
Pickard thereafter on this day filed the charges in the instant proceeding.
Shortly after Pickard filed the charges he returned to Shaw's employment..
It was not until about the middle of January 1950, when Neil had been replaced
by another construction superintendent, that the Respondent Company placed
a bi-loader in operation again. On this occasion, Shaw did not send Pickard or-
any other of his operators along with the machine to work for the Respondent
Company, and the machine was operated by a member of the Respondent Union
who had been an air-compressor operator and who had remained in the Respond-
ent Company's employ. Pickard did not apply for employment with the Re-
spondent Company after he filed the charges with the Board.
B. Conclusion's
In explanation of Pickard's discharge, it was pointed out that Pickard's last
day of work was on December 23, because at about that time and thereafter-
there was no work for a hi-loader due to weather conditions. This explanation
overlooks the Respondent Company's decision to curtail the night shift air-
compressor operations and the Respondent Union's insistence upon the observ-
ance of its seniority rule which admittedly had no application when therewas-
a lack of employment brought about by such temporary conditions as bad
weather or the need,to repair the machinery' The correctness of this,expla-
nation is also reflected upon in some respects by the other explanations given..
It was also explained relying upon some of Neil's testimony that prior to any
discussions with Hamilton, Neil had determined that the hi-loader was "ap-
proaching" the end of its usefulness, that Neil had decided to return the machine
to Shaw for reasons of economy, and that Neil's discussion with Hamilton was to^
determine whether Pickard could operate the machine sometime in the future
should it be returned to the project. While some support for this explanation
will be found in Neil's testimony, which he gave while under cross-examination
8 The findings as to Neil's conversation with Hamilton are based upon Neil's testimony
given in this proceeding in a deposition at Chicago, Illinois, on October 12, 1950. Hamil-
ton's testimony at the hearing was to the effect that he had talked to Neil only once and!
that was on a prior occasion concerning another subject but that he had no recollection,
of having had the conversation involved. Hamilton's testimony on this issue is being
treated as a denial.. Aside from the impression gained by the undersigned from observing
Hamilton as a witness and a study of Neil's deposition, Neil, unlike Hamilton, was, at the
time he, testified, a disinterested witness, and in addition Neil's testimony fits in with the
total situation otherwise presented.
* Although Hamilton first admitted upon direct examination by the General Counsel that
the seniority rule had been applied to Pickard, he later denied when cross-examined by the
Respondent Union that the seniority rule was "in the Pickard deal."
961974-.52-vol. 95--26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent Company, an examination of Neil's testimony as a whole and
the entire record shows that that testimony should not be accorded significant
weight. For example: (1) There is no showing that in Neil's opinion the hi-
loader had in fact lost its usefulness at the project, and the phrase, "approach-
ing" the end of usefulness, concedes that some usefulness remained; (2) there
would have been no reason for Neil to intercede on Pickard's behalf with Shaw
and Hamilton to maintain Pickard on the hi-loader job, if he were not concerned
with, the application of the seniority rule; (3) there would have been little
point to Hamilton's coming to the project and Neil's holding this conference
with him concerning a hypothetical issue; (4) the findings already made under
"The facts," based upon Neil's testimony, show that Neil undertook to abide by
,Vie ;Respogdent Union's rules when they resumed operations, that there was no
occasion to do anything about the situation, and that the bad weather continued
until he left the Respondent Company's employ; (5) there would have been no
reason for Neil to encourage Pickard to make use of the Board's processes if
Pickard's discharge were not due to the application of the seniority rule ; and
(6) as appears from the testimony quoted below, (a) Neil had not decided to
return the hi-loader to Shaw prior to the Hamilton conference or when Pickard
reported that he had been "bumped," (b) 'there would have been no reason for
Neil to plan upon circumventing the seniority rule and having the excavation
subcontractor do that work if he were not confronted with the problem of apply-
ing the seniority rule.
Neil explained as follows :
Q. [By Mr. Sacks] At the conclusion of your conference with Mr. Hamil-
ton you informed him 'that you would abide by that rule which required
the B card holder to be replaced by an A. card holder [a member of the
Respondent Union]?
A. It was my intention what [that] was necessary from then on. While
I wasn't going to fight with Hamilton about it it was my intention to have
the general contractor do the work rather than fuss with him about it,
because I didn't believe that the older man could do us a job on it, and
I would rather, if I had a truck stuck or something, or needed a little work
done by the high lift [another term for the hi-loader] or the bulldozer, that
I'would just rent the dozer from the excavating contractor for an hour
or two, or a day.
Q. Was that your intention, or did you state that intention?
A. That was my intention, I didn't state it. I did state to him that I
intended to get along with him, and I would abide by any rules. In other
words, I wouldn't violate any rules, and I didn't, and I didn't intend to,
because I wasn't going to run up against that. I was going to go around
it and avoid it... .
* s s * s s s
I was going to rent his piece of equipment had I needed to avoid
any friction with the operating engineers because I was going to have their
men on the job, and I wanted to avoid any friction.
Neil also testified that according to custom the returning of the hi-loader to
Shaw meant the automatic return of Pickard with the machine. Neil testified
further :
Q. You said you thought Mr. Pickard was a good man and you would
like to have had him.
DEL E. WEBB CONSTRUCTION COMPANY 389
A, If I continued to have that piece of equipment there I would have liked
to keep him on it, but since I was going to have friction with the operating
union I decided right then and there the thing to do was to send that piece
of equipment back. It would eliminate any friction.
It thus appears that Neil did not undertake with Hamilton in their discussion
a day or two before Christmas to replace Pickard with a member of the Respond-
ent Union, and yet, in order not to violate the rule, decided on that occasion to
circumvent the seniority rule by returning the hi-loader to Shaw, thereby making
it possible for Pickard, according to custom, to return with the machine, and
by planning thereafter to have that work done by the excavation contractor.
Having decided, contrary to liis own views to,give up trying to maintain Pickard
in the Respondent- Company's :e nploy in order to avoid "friction": with the
Respondent Union, Neil thereafter encouraged Pickard to proceed through Board
action. It is accordingly found that but: for. the Respondent Union's insistence
upon the enforcement of its seniority rule and the Respondent Company's
acquiescence therein, the Respondent Company would not have decided to change
its mode of operations and Pickard would not have been displaced in his
employment at the Respondent Company on or about December 23, 1949.
The Respondents also contend that as a matter of law there were no violations
of the Act as alleged by the General Counsel. Essentially this contention with
its supporting argument was raised before the Board recently in Sub Grade Engi-
neering Company ° and found to be without merit. The undersigned finds for the
reasons stated by the Board in that case, that the Respondents, Company and
Union, by the conduct described above, violated Section 8 (a) (3) and 8 (a) (1)
and Section 8 (b) (2) and 8(b)'(1) (A), respectively.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondent Company described in Section
I, above, have a" close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the. Act.
It has been found that beginning on or about December 23, 1949, the Respondent
Company discriminated against William H. Pickard, thereby encouraging mem-
bership in the Respondent Union and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed by Section 7 of the Act;
and that the Respondent Union engaged in unfair"labor practices by causing the
Respondent Company thus to discriminate, and thereby restraining Pickard in
the exercise of the rights guaranteed by the Act.
Raving found that the Respondent Company discriminated against William
H. Pickard, it will be recommended that the Respondent Company offer Pickard
immediate and full reinstatement to his former or substantially equivalent posi-
' 93 NLRB 406.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.tion, without prejudice to his seniority or other rights and privileges. Having-
found that both Respondents are responsible for the discrimination suffered by
Pickard, the undersigned will recommend that they jointly and severally make-
him whole for any loss of pay he may have suffered by reason of the discrimina-
tion against him by payment of a sum of money equal to the amount he normally
would have earned as wages from the date of the discrimination against him
until he is offered reinstatement, less his net earnings during this period. Exact
computations shall be in accordance with the Board's usual policies : F. W. Wool-
worth Co., 90 \x.RB 289; Crossett Lumber Company, 8 NLRB 440; Republic-
Steel Corporation v. N. L. R. B., 311 U. S. 7.
Having found that the Respondent Union caused the Respondent Company to-
discriminate against William H. Pickard, it will be recommended that the Re-
spondent Union notify the Respondent Company in writing, and furnish a copy.
to Pickard, that it has no objections to his employment by the Respondent
Company. It is also recommended that the Respondent Union may terminate
its liability for further accruals of back pay, by giving the said notice ; and in_
that event the Respondent Union shall not be liable for any back pay which
may accrue after 5 days from the giving of said notice.
In order to insure expeditious compliance with the recommended back-pay-
order, it is recommended that the Respondent Company be ordered, upon reason-
able request, to make all pertinent records available to the Board or its agents-
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS OF LAW'
1. International Union of Operating Engineers, Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
William H. Pickard, thereby encouraging membership in the Respondent Union,
the Respondent Company has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in and is engaging in unfair labor practices within the meaning of-
Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against William H..
Pickard in violation of Section 8 (a) (3) of the Act, the Respondent Union has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
5. By restraining and coercing William H. Pickard in the exercise of the.
rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in:
and is engaging in unfair labor practices within the meaning of Section S (b)
(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting:
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
e The Respondent Company submitted separately numbered proposed findings of fact and?
conclusions of law. Proposed finding of fact numbered 7 Is accepted ; proposed findings of
fact numbered 1 through 6 are rejected ; and proposed conclusions of law numbered 8
through 5 are rejected.