Gerson Electric Construction Co.

National Labor Relations Board - Board Decisions

Dec 10, 1981

259 N.L.R.B. 640 (N.L.R.B. 1981)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerson Electric Construction Company and James hereby orders that the complaint be, and it hereby
Jennings. Case 13-CA-20580 is, dismissed in its entirety.
December 10, 1981 DECISION
DECISION AND ORDER STATEMENT OF THE CASE
BY CHAIRMAN VAN DE WATER AND WILLIAM A. GERSHUNY, Administrative Law Judge:
MEMBERS JENKINS AND HUNTER A hearing was held on July 23-24, 1981, on complaint
issued December 19, 1980, alleging a single violation of
On August 31, 1981, Administrative Law Judge Section 8(a)(1) and (3) of the Act. At issue is whether
William A. Gershuny issued the attached Decision Respondent unlawfully laid off electrician Jennings be-
in this proceeding. Thereafter, the General Counsel cause of his efforts to enforce a contract provision con-
cerning starting times on the job.
filed exceptions and a supporting brief, and Re-ng starting times on the job.
p enfiledexc ons andasw pi g brief.Upon the entire record, including my observation of
spondent filed an answering brief witness demeanor, I hereby make the following:
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na- FINDINGS OF FACT AND CONCLUSIONS OF LAW
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel. 1. JURISDICTION
The Board has considered the record and the at- The complaint alleges, the answer admits, and I find
tached Decision in light of the exceptions and that Respondent, an electrical contractor, with annual
briefs and has decided to affirm the rulings, find- shipments of goods interstate in excess of $50,000, is an
ings,' and conclusions of the Administrative Law employer engaged in commerce within the meaning of
Judge and to adopt his recommended Order. the Act.
OtRDER 1c. LABOR ORGANIZATION INVOLVEDR ER
The International Brotherhood of Electrical Workers,
Pursuant to Section 10(c) of the National Labor Local 134, AFL-CIO, is a labor organization within the
Relations Act, as amended, the National Labor Re- meaning of Section 2(5) of the Act.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and 1Il. UNFAIR LABOR PRACTICES
In the relevant period of 1980, Respondent was an
In his exceptions, the General Counsel contends that the Administra- electrical contractor with several dozen jobs proceeding
tive Law Judge failed to make any findings concerning the testimony of- concurrently in the Chicago area under a labor agree-
fered by employee James R. Hicks, which tended to establish that Re-
spondent did in fact plan to rid itself of employee James Jennings for rea- ment with IBEW Local 134. That contract contains a
sons proscribed by the Act, and that the Board should therefore reverse grievance-arbitration procedure, a provision for appoint-
the Administrative Law Judge's Decision concluding that Jennings had ment of job stewards by the Local Union business agent,
not been unlawfully discharged. We find no merit in the General Coun- a provision absolutely banning any discrimination against
sel's contention. Inasmuch as the Administrative Law Judge based his
findings upon his "observation of witness demeanor," we conclude that it stewards "for the faithful performance of their duties" to
is implicit in his general statement regarding credibility that he has dis- insure compliance with the contract, a provision giving
credited Hicks' testimony, since it conflicts with the facts as described by contractors virtually unfettered rights to lay off employ-
Respondent's officials, whose testimony, his Decision makes clear, he has ees or transfer them from job-to-job within the geo-
completely credited. Kimball Tire Co.. Inc., 240 NLRB 343, 344, fn. 5
(1979). Therefore, in considering the General Counsel's exceptions to cer- graphical jurisdiction of the Local Union, and a provi-
tain credibility findings made by the Administrative Law Judge, we have sion giving no seniority protection to workmen such as
also reviewed his implicit resolution with respect to Hicks. It is the those here.
Board's established policy not to overrule an administrative law judge's Two of Respondent's jobsites are involved in this case.
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor- At the Transportation Building on South Dearborn
rect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 Street, Respondent obtained permission from a Local
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find Union business agent to vary the contract starting time
no basis for reversing his findings. and begin work at 7 a.m. On September 23, 1980, six
In sec. II, par. 2, of his Decision, the Administrative Law Judge foundr
that Jennings and another employee were transferred from Respondent's electricians, including Jennings, were referred by the
Transportation Building jobsite to its Hampton House jobsite on Septem- Local Union to this job. In his I week on the job, Jen-
ber 30, 1980. The record reveals that Respondent transferred two em- nings, who was not the steward, complained to another
ployees from the Transportation Building, but only Jennings was assigned business agent about the starting time and had heated dis-
to the Hampton House site. The error is hereby corrected.
Member Jenkins does not rely on Wright Line. a Division of Wright cussions with Foreman Morton as to the availability of
Line, Inc., 251 NLRB 1083 (1980). That decision concerns identifying the toilets and water, the safe use of the staircase and man-
cause of discharge where a genuine lawful and genuine unlawful reason lift, his right to drink coffee on the job, and his right to
exist. Where, as here, the asserted unlawful reasons (Jennings' activities) leave the jobsite to put money in parking meters. On
were not to any degree a motiviating factor in Respondent's decision,
only one genuine reason remains-the lawful one. The attempt to apply September 30, Jennings and another employee were
Wright Line in such a situation is futile, confusing, and misleading. transferred to the Hampton House job site in South Chi-
259 NLRB No. 88
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GERSON ELECTRIC CONSTRUCTION CO. 641
cago. It is noteworthy that counsel for the General Sembinini concerning difficulties in gaining access to sev-
Counsel makes no contention here that this transfer was eral occupied apartments at the same time to permit
violative of the Act; that no grievance was filed by Jen- wiring and nondelivery of custom metering and fire-
nings; that a discrimination charge was filed by Jennings escape lighting materials. It was then decided to shut
with OSHA based on his safety complaints; and that Jen- down the job until the problems could be resolved, de-
nings later filed an intraunion charge against Foreman spite the fact that the work had only recently resumed
(and Union member) Morton which did not refer to a and Respondent was anxious to retain the good will of
starting time dispute with Morton. the customer.
The Hampton House job, commenced in 1978, but in- Several days later, the apartment access problem was
terrupted from June until September 22, 1980, because of resolved, overdue deliveries were received, and work
a contract dispute with the owner, consisted of the reha- was resumed on October 8, 1980, the following Wednes-
bilitation of an occupied apartment building and its con- day. Because the two other electricians were working
version to condominium apartments. Between September for Respondent on another site, they were reassigned to
22 and 30, the work was performed by Foreman (and the Hampton House job. Later, five other electricians
union member) Hammersmith and two electricians; on were put on the job and remained until its completion on
September 30, because of manpower needs, Jennings was February 3, 1981
transferred to the job where he remained for 3 days until A , i i n
Again, it is noteworthy that Jennings did not gnrieveOctober 3, when the job again was temporarily shut this layoff because admittedly he felt it was legal
down by Respondent for reasons and under circum- this layoff, because, admittedly, he felt it was legal.do n by Respondent for reasons and under circum- I am unable to credit Jennings' testimony for a number
stances detailed below. At this jobsite, as in the case of f reamsons First, I et Jeings testlmony for an thater
the other, Respondent earlier had obtained permission of reasons. First, I am left with the clear impression thatt rli r t i per ission his court room version of the facts was tailored to meet
from a local business agent to begin work at 7 a.m.his court room version of the facts was tailored to m
i eetl t i
Upon reporting late to the Hampton House job, Jen- counsel's legal theory as opposed to representing his best
nings briefly met with Foreman Hammersmith, was recollection of past events. In this regard, it is interesting
briefed on the work to be done and, in turn, talked about that, in 1980, he filed no gevance under the labor
his "problems" with Foreman Morton on the last job. agreement because he was convinced that the October 3
Hammersmith advised Jennings not to be concerned be- layoff was "legal," despite the fact that, if, as contended
cause, here, he started with a clean slate. Jennings met now, the layoff were because of his efforts as a steward
with the two other electricians, who were working as a to enforce the starting provisions of the contract, it
team installing new metering for each apartment, briefly clearly would have violated article VIII of the contract
discussed and agreed to go along with the 7 a.m. starting which provides: "Under no circumstances shall stewards
time and, apparently, was "elected" steward by default. be discriminated against for the faithful performance of
Jennings advised Hammersmith of his intent to raise the their duties as such"; that the starting time controversy
starting time issue at the next Local Union meeting. That with Foreman Morton of which much was made at the
meeting was held on October 2 and Jennings did not hearing was not referred to in his written intraunion
demand an 8 a.m. starting time until Friday morning, Oc- charge against Morton; and that his OSHA discrimina-
tober 3, when he met with Hammersmith. tion charge was based on a contention that the layoff
Later, during the morning of October 3, Hammersmith was motivated because of his safety complaints at the
advised Jennings and the two other electricians that the earlier jobsite. Second, his testimony represents over-
job again was to be shut down and that Respondent's statements and exaggerations. In this connection, Jen-
personnel manager had been asked to determine if there nings went to great lengths to establish knowledge by
were other Respondent jobs to which the three men Foreman Hammersmith of Jennings' safety and contract
might be transferred. Jennings complained that Respond- complaints and his difficulties with Foreman Morton at
ent was out to get him and that he wanted a layoff the first jobsite, testifying that, after arriving 1 hour late
rather than a transfer. Temporary positions were found at the Hampton House job, he bared his prior work his-
for the other two, more senior electricians, but none was tory to Hammersmith for 2 hours before commencing
available for Jennings who, thereafter, was laid off. On work. This testimony is contradicted not only by Ham-
the same day, Respondent laid off 10 other electricians mersmith, but also by coemployee Hicks and seeks, un-
from other jobs. successfully, to convince me that a foreman would be so
Jennings was aware of the effects of a layoff, as op- interested in the tale as to permit 3 hours of nonproducti-
posed to a transfer. In the former case, he would be enti- vity at $15.15 an hour at a job which recently resumed
tied to unemployment compensation, but could be re- after a lengthy shutdown over a price dispute with the
turned to work only through the Local Union's referral owner. Third, Jennings sought hard to establish that he
system. In the latter case, he would continue to work was steward on this 3-day, three-man job and had full
within the Local Union's geographical jurisdiction at the knowledge of Respondent's access to materials and its
same rate of pay and at the same position and could be ability to continue the job uninterrupted. Of course, on
returned to work at Hampton House when the job was the first day of his 3 days on the job, he was 1 hour late,
resumed. related his work history to the foreman for 2 hours and
The Friday morning decision to temporarily close apparently spent considerable time away from his work
down the Hampton House job, as credibly testified to by area visiting the other two electricians to discuss ap-
Respondent's officials, followed discussions on Thursday pointment of a steward, telephoning the Local Union
morning between Hammersmith and Project Manager office and busying himself with the weekly steward

t j i r
t t til , l l i ,
tr t i t it t , i t t ,
ilit ti f i rt t il i it . t t l t i i i
i i i i i
, l tri i
l t ; ti l ti
, f r needs, Jennings was February 3, 1981.
tra sferre t t e j r e re ai e f r 3 s til , i i t Jn g did n grievei^, - i. , , .i. i. . . .,' , , i i i i
ct er 3, t j i s t r ril t t lo cu , ie, it g.
t f r r r ir - f u e itJ iedsy, he felt it was legal.
t t il l . t t i j it , s i t f I a u nasF e to credit n ings testimon f r numb r
t t r, espondent earlier had obtained rmi i f rt r t , l f t l r tipressd n that
l l i t t i r at 7 a. . h l s c o u r t r o o m v e r sn o n o f t h e f a c ts w a s tao lo r ed t or i eet
r rti late to t t ouse j , Jen- rc o u ns ell siego th eo r v a s opposed t representing his best
nings briefly met ith Fore an Hammersmith, was recollection of past events. In this regard, it is interesting
t h a tg en 198 0b h e al ed c° on r
his "proble s" it Fore an rt on the last job. lagree ent because he as convinced that t ctober
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642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report forms. On the third day, he spent part of his day Respondent was in the process that very day of laying
in discussions with Foreman Hammersmith about the off 10 other electricians at other locations.
starting time, another part in discussion with Hammers- On the record here, it is impossible to conclude that a
mith and Sembinini concerning the prospects of a trans- contractor of this size would jeopardize its contract with
fer or a layoff and another part completing a weekly ste- the building owner and its relations with the Local
ward report (of which the Local Union has no record), Union which supplies its workmen simply because a ste-
leaving the jobsite 1 hour early. His ability to testify as ward voiced complaints over a starting time previously
to availability of materials and Respondent's ability to approved at both jobsites by the Local Union itself. The
continue the job is wholly unconvincing. complaint must be dismissed.
Assuming without deciding that this slender eviden- Upon the foregoing findings of fact, conclusions of
tiary thread satisfies the General Counsel's burden, under law, the transcript as corrected, and the entire record, in-
Wright Line, a Division of Wright Line, Inc., 251 NLRB cluding an exceptionally able closing argument by coun-
1083 (1980), of establishing a prima facie case, I neverthe- sel for General Counsel who waived the filing of a post-
less find and conclude that Jennings' activities were not trial brief, and, pursuant to Section 10(c), I hereby issue
to any degree a motivating factor in Respondent's Octo- the following recommended:
ber 3 decision and that the job would have been closed
down and Jennings laid off regardless of any protected ORDER'
activity on his part. It is ordered that the motion of the counsel for the
There is no doubt whatever in my mind that Respond- General Counsel to correct the transcript be, and the
ent's operational decisions were motivated solely by busi- same hereby is, granted.
ness considerations. The apartment access problems and IT IS FURTHER ORDERED that the complaint be, and
material shortages were real, as were the uncertainties as the same hereby is, dismissed.
to the time of their solution. That they came several days
after the closure has no bearing on Respondent's motives In the event no exceptions are filed as provided by Sec. 102.46 of the
to close down in the first place. Nor is there doubt as to Rules and Regulations of the National Labor Relations Board, the find-
the bona fides of Respondent's efforts to transfer the ings, conclusions, and recommended Order herein shall, as provided in
three employees to other positions. Here, again, the Sec. 102.48 of the Rules and Regulations, be adopted by the Board andbecome its findings, conclusions, and Order, and all objections thereto
record clearly portrays that effort, despite the fact that shall be deemed waived for all purposes.
e
,

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