Bechtel Power Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1257 (N.L.R.B. 1980)

BECHTEL POWER CORPORATION 1257
Bechtel Power Corporation and Joseph Sokalski and
Howard Lamont, Jr.
Reinforced Iron Workers Local Union No. 426, In-
ternational Association Of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO and
Joseph Sokalski, Howard Lamont, Jr., and
James Herring. Cases 7-CA-15336, 7-CA-
15384, 7-CA-15769, 7-CB-4182, 7-CB-4196,
and 7-CB-4212
April 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 16, 1979, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Charging Parties
filed exceptions and a supporting brief, and Re-
spondent Employer filed a brief in opposition to
the Charging Parties' exceptions. Respondent Em-
ployer also filed a cross-exception to the Adminis-
trative Law Judge's Decision and a brief in support
thereof.
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, 2 and conclusions of the Administrative Law
Judge3 and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge
that Respondent Employer violated Section 8(a)(1)
of the Act by advising General Foreman Lamont
that company policy required the presence of com-
pany counsel whenever a supervisor gave testimo-
ny or evidence to a government agency. The Ad-
ministrative Law Judge cited General Service, Inc.,
229 NLRB 940 (1977), and General Nutrition
Center, Inc., 221 NLRB 850 (1975), for the broad
proposition that a supervisor has a statutorily pro-
Respondent Employer's request for oral argument is hereby denied,
as the record, including the briefs, adequately presents the issues and the
positions of the parties.
2 Respondent Employer 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
3 The Administrative Law Judge inadvertently failed to mention that
8(bXl)(A) statements made to Robert Carriveau and George Simpson
were not alleged in the complaint. We find, however, that these state-
ments were fully litigated at the hearing and that Respondent Union,
therefore, was not prejudiced by the finding of these violations.
248 NLRB No. 166
tected right to file unfair labor practice charges
and to give evidence to support those charges free
from employer interference or coercion. We, how-
ever, find it unnecessary to rely upon General Ser-
vices, or to adopt such a blanket rationale on the
facts of this case.4
Lamont was a supervisor at the time he was laid
off with the last group of employees on May 23 as
a result of a Laborers strike. On June 15, following
settlement of the strike, the Employer, complying
with the provision of the collective-bargaining
agreement giving Respondent Union the exclusive
right to refer employees within 48 hours of a hiring
request, requested Respondent Union to refer a
certain number of employees to re-man the job.
Lamont, along with other qualified journeymen,
had an equal right to be referred through the union
hall. 5
On July 24, Lamont filed charges with the Board
alleging that the Union discriminated against him
and other journeymen in referrals, and that the
Employer knowingly acquiesced. Subsequent to the
filing of charges against it, the Employer advised
Lamont, who returned to work on June 19 as a su-
pervisor, that he was part of management and that
company policy required the presence of company
counsel whenever a supervisor gave testimony or
evidence to a governmental agency.
The Board has long held that the Act protects a
supervisor from discrimination by an employer for
assisting employees in proceedings before the
Board, e.g., in General Nutrition, supra, the supervi-
sor assisted employees in filing a charge with the
Board. In the present case, Lamont charged that
both the Employer and the Union violated his right
to be referred through the union hall on a nondis-
criminatory basis-a right afforded all rank-and-file
employees. To permit an employer, in these cir-
cumstances, to prohibit a supervisor from provid-
ing information to a Board agent unless in the pres-
ence of company counsel would have a direct and
adverse impact on rank-and-file employee rights.
Cato Show Printing Co., Inc., 219 NLRB 739
(1975), cited by Respondent Employer, is not to
the contrary. In Cato the Board found, inter alia,
that the employer did not violate the Act when, in
response to a union organizing campaign, it advised
its admitted supervisors not to interfere with em-
ployee union activities and not to talk to Board
agents unless a company attorney was present.
4 Similarly, we do not find it necessary to adopt the Administrative
Law Judge's broad generalization in affirming his dismissal of allegations
of threats and discrimination against Lamont and Robert Carriveau by
Respondent Employer.
5 Supervisors were selected from those referred by the Union as em-
ployees A laid-off supervisor returned to the pool of journeymen entitled
to referral through the Union.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Cato is clearly distinguishable from the
instant case inasmuch as here such instructions
were given to a supervisor who had filed charges
with the Board in an attempt to protect employee
rights. To insist that a supervisor, who is also a
charging party seeking to vindicate employee
rights, talk to a Board agent only in the presence
of company counsel would inhibit the giving of in-
formation regarding charges and would thereby
impede the effective administration of the Board's
statutory function. Accordingly, we find that by so
advising Lamont Respondent Employer has violat-
ed Section 8(a)(1) of the Act. 6
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 Respondent Bechtel Power Cor-
poration, Midland, Michigan, its officers, agents,
successors, and assigns, and Respondent Reinforced
Iron Workers Local Union No. 426, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, Detroit, Michigan, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
MEMBER JENKINS, concurring:
I would adopt the Administrative Law Judge's
Decision in its entirety. His reliance on General
Services, Inc., 229 NLRB 940 (1977), is proper to
support the conclusion that inasmuch as a supervi-
sor has a statutorily protected right to file an unfair
labor practice charge free from employer interfer-
ence or coercion, it must follow that the supervisor
has a similar right to support those charges by the
giving of evidence free from interference or coer-
cion.
6 For the reasons set forth above, Member Truesdale finds the instant
case distinguishable from both General Services. Inc., supra, and Cato
Show Printing Co., supra. He therefore further finds it unnecessary to ex-
press a position with respect to the particular issues involved in those
prior cases
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge:
These consolidated cases were heard in Midland, Michi-
gan, on January 31, February I and 2, and March 13 and
14, 1979, based upon charges filed and amended on var-
ious dates between July 10 and December 11, 1978, by
Joseph Sokalski, Howard Lamont, Jr., and James Her-
ring, individuals, and upon complaints issued by the Re-
gional Director for Region 7 of the National Labor Rela-
tions Board, herein called the Board, on August 31 and
December 21, 1978, as amended at the hearing. The
complaints allege that the Reinforced Iron Workers,
Local Union No. 426, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, herein called Respondent Union, Local 426, or the
Union, while party to an agreement establishing it as the
exclusive source of referrals for employment at the Mid-
land, Michigan, jobsite of Bechtel Power Corporation,
herein called Bechtel or Respondent Employer, threat-
ened not to refer, refused to refer, or delayed the referral
of certain employee-members to that site because of their
internal union political activities. They also allege that
the Union breached its duty of fair representation by
giving false information to inquiring employee-members
concerning the manpower needs and recall practices at
the Midland site in violation of Section 8(b)(1)(A) and
(2) of the Act. In regard to the Respondent Employer,
the complaints allege that Section 8(a)(1), (3), and (4) of
the Act have been violated by Bechtel's failure to hire or
recall employees even though it had reason to believe
that they were denied referrals by the Union for reasons
prohibited by the Act, and by threatening employees
with discharge or demotion, laying them off, and refus-
ing to recall them because they filed, gave testimony
supporting, or cooperated in the investigation of unfair
labor practice charges. Both Respondents denied the sub-
stantive allegations of the complaints.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, and to argue orally. Briefs were filed
by all parties and have been carefully considered.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. BECHTEL' S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Bechtel is a Nevada corporation with an office and
construction site in Midland, Michigan, where it is en-
gaged as a general contractor in the construction indus-
try. The complaints allege, Bechtel admits, and I find
and conclude that Bechtel is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The complaints allege, the Union admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-Contractual Rights and Hiring
Practices
Bechtel is the general contractor for the construction
of a nuclear power plant in Midland, Michigan. For that
construction, which requires a manual work force of be-
tween 2,200 and 3,000 workers, Bechtel maintains collec-
tive-bargaining agreements with 14 craft or building
trades unions. Among these is Respondent Union, whose
members, called rodmen or rodbusters, perform the rein-
BECHTEL POWER CORPORATION 1259
forcing iron, or rebar, work. The hiring of rodbusters at
that site is governed by the "Construction Agreement-
Michigan-New Power Generating Units," known as the
Powerhouse Agreement. That agreement provides, inter
alia, as follows:
A. The selection of craft foremen and general
foremen shall be entirely the responsibility of the
Employer(s), it being understood that in the selec-
tion of such foremen the Employer(s) will give pri-
mary consideration to the qualified men available
from the craft to be supervised in the local area.
H. When a local Union(s) does not furnish quali-
fied employees within 48 hours (Saturdays, Sun-
days, and holidays excluded), the Employer(s) shall
be free to obtain employees from any source.
In practice, Bechtel met its fluctuating needs for rod-
busters by calling the Union's Detroit hall to request
rodbusters, and rodbusters with welding skills, solely by
the number needed. It made no name requests and con-
sidered all journeymen ironworkers qualified to work at
its site. Although certain classes of welders received
their certifications on the Midland site, Bechtel gave no
preference to, and did not request, the referral of rodbus-
ters who had experience at the Midland site. Since 1973,
when the project began, Bechtel has employed nearly
1,000 different rodbusters, including probably every
member of Local 426 and many from outside its jurisdic-
tion, which encompassed approximately the eastern half
of the State of Michigan. The collective-bargaining
agreements governing the work contain no provisions for
the acquisition or application of seniority while em-
ployed by Bechtel.
In Bechtel's managerial hierarchy, only its field super-
intendent (or the project superintendent in his absence)
has the authority to call the union halls for manpower.
During the period involved herein, May through Octo-
ber 1978,' no one besides Field Superintendent Oliver
Holman had authority to request the referral of manual
workers.
Other than in regard to Bechtel's Midland site, it
would appear that the Union did not operate an exclu-
sive hiring hall. The rodbusters generally solicited their
own jobs. The Union did maintain out-of-work lists at its
halls in Detroit and Flint. A separate list, for those par-
ticularly seeking work at the Midland site, was main-
tained solely at the Detroit office. 2 The Union main-
tained that its referrals to the Midland site were made
from both sets of lists or from its business manager's fa-
miliarity with the names of those rodbusters whom he
knew to be looking for work.
B. Campaign and Election for Union Officers
With 14 unions, each required to conduct periodic
elections for officers, election campaigns were a fairly
I All dates hereinafter are 1978 unless otherwise indicated.
2 No copies of that list for the relevant periods remained in existence
at the time of the hearing herein.
frequent occurrence at the Midland site. Local 426's
election was scheduled and conducted on June 3. Cam-
paign activity began around April, with rallies and meet-
ings, and nominations were made at a meeting in Detroit
in late April or early May. The incumbent officers, Joe
Lauwers, president, and Richard Wheeler, business man-
ager, were nominated to retain their positions. James
Russell was nominated to run against Wheeler. Howard
Lamont and another member, Nagy, opposed Lauwers
for the presidency. At the time of these events, Lamont,
a charging party herein, was employed as a lead general
foreman on the evening, or swing, shift at the Midland
site. In that capacity, he was over the general foremen
and foremen, directed the work of several crews of iron-
workers, and effectively exercised the authority to select
employees for layoff or for promotion to the level of
foreman. On the record herein, it cannot be disputed that
Lamont was a supervisor within the ambit of Section
2(11) of the Act. The Union's records indicate that nei-
ther Russell nor Nagy was employed by Bechtel, and
they are not otherwise involved in these proceedings.
Campaigning for these offices, including the distribu-
tion of stickers and insignia and discussions, took place at
the various construction sites where Local 426's mem-
bers were employed. Perhaps because Lamont was em-
ployed on Bechtel's swing shift, there was some evidence
of support for him among the rodbusters working under
him. 3 There was also evidence of such support for Rus-
sell. This evidence took the form of employees wearing
stickers on their hardhats proclaiming support for
Lamont and Russell and placing bumper stickers so indi-
cating upon their cars, which they parked in the lot re-
served for the manual workers. Employees testified that
as many as 85 to 90 percent of the swing shift rodbusters
displayed campaign insignia for Lamont and/or Russell.
Some employees displayed insignia for Wheeler and
Lauwers, and others displayed insignia for both the in-
cumbents and the opposition.
The self-proclaimed campaign coordinator for Russell
and Lamont in the Midland area was Joseph Sokalski, a
foreman and general foreman on the swing shift.4 He or-
dered and distributed the campaign materials. He also so-
licited funds for Lamont's candidacy and recorded the
names of the contributors. His list reflected contributions
from approximately 26 persons, most of whom were
ironworkers on the swing shift. The record does not re-
flect whether Lamont and Russell were similarly sup-
ported on the day shift or whether Wheeler and
Lauwers enjoyed that support.
Like most political campaigns, this campaign shed
both light and heat. Thus, even before the nominations,
there had been an argument between Jim Eddy, Local
426's swing shift steward appointed by Wheeler, and
David Calderon, a journeyman ironworker. The conver-
sation began with Eddy pointing out that Bechtel did not
a Not at issue herein are the statutory implications of supervisors cam-
paigning for union office among the very employees whom they super-
vise.
4 Like the lead general foreman under whom he worked, a general
foreman had the authority to select individuals for layoff and to distribute
overtime, and therefore possessed the statutory indicia of supervisory
status
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want campaign stickers posted on the various buildings.
Calderon acknowledged that Eddy may have told him
that Bechtel had threatened to discharge employees for
posting such materials. According to Calderon, however,
when he and Eddy got into an argument over Wheeler's
performance as business manager, with Calderon express-
ing dissatisfaction with Wheeler, Eddy told him, "Well,
you better watch what you say or you'll be looking for
another job." Eddy did not testify. Paul Woodward,
who heard the argument, testified on behalf of the Gen-
eral Counsel. He recalled that Calderon and Eddy were
arguing about the election stickers, and that Eddy ripped
some of them off the walls and told Calderon that the
presence of the stickers violated company rules. He said
that he heard Eddy say, in regard to the issue of the cam-
paign materials, that Calderon's "big mouth was going to
cost him his job." Woodward reported no mention of
Wheeler during this argument. 5
After the nomination, the supporters of each candidate
gathered for some celebrating. Wheeler's supporters par-
tied at the union hall; Russell's, including Calderon, went
to a nearby bar. Late in the evening, Wheeler and some
friends joined the opposition at that bar. Initially, every-
thing remained on a somewhat friendly footing with
Wheeler offering to buy drinks for everyone except Cal-
deron. Calderon, however, bought Wheeler and his
friends drinks and shot some pool with Wheeler. The
play degenerated into a progressively loud and conten-
tious argument over union politics, over how well
Wheeler fulfilled his business manager's role and how
well Calderon performed his job as rodbuster. As the bar
closed, at 2:30 a.m., Calderon overheard Wheeler argu-
ing with another member and joined in. He accused
Wheeler of allowing the contractors to "get away with
murder." Wheeler responded by telling him, "[Y]ou guys
are the ones that screwed up . . . you guys aren't taking
care of your work right." Then, according to Calderon:
[I said] I take care of my work the best I can. If I
get dispatched from the hall, I do the best I can,
and it was getting rather loud and [Wheeler] said you
wouldn't even be working if I didn't send you to
the Bechtel project and I says, well I've worked on
other jobs beside Bechtel and him and I were really
heated then and he said, well, then you won't work
and I said what do you mean I won't work and he
said well, every job I've ever given you you've
screwed up . . . that's the reason all the subcontrac-
tors are doing all the work and the contractors
aren't keeping any . . . you screw everything up
you do. [Emphasis supplied.]
They continued to argue in a loud manner about Calder-
on's capabilities until Wheeler allegedly made a com-
pletely untoward remark, wishing harm upon Calderon's
family. Not surprisingly, the argument then entered its
final phase, a knockdown drag-out brawl. Wheeler did
' Noting Calderon's admission that Eddy may have been warning him
against employer discipline for his actions and the lack of corroboration
by Woodward, I cannot find that Eddy threatened Calderon with a loss
of employment because he criticized or challenged Wheeler.
not testify and Calderon's testimony, though uncorrobor-
ated, stands uncontradicted.
The General Counsel alleged that Wheeler's state-
ments in the foregoing exchange constituted a threat, in
violation of Section 8(b)(1)(A), to refuse referrals to em-
ployee-members because they supported candidates run-
ning in opposition to the Union's incumbent officers.
While it might be argued that the circumstances herein-
i.e., "whiskey-tale" in the small hours of the morning,
provoked in part by Calderon's own argumentative atti-
tude-might militate against a finding of violation, I am
constrained to agree with the General Counsel. Wheel-
er's statement, "then you won't work," coupled with im-
plications that he could withhold referrals from Calderon
on the basis of his allegedly faulty work, unlawfully re-
strained Calderon and other employees who may have
overheard it. Calderon's complaints involved the quality
of Wheeler's representation of union members and were
clearly related to Calderon's opposition to Wheeler's
continuation as business manager. In such expressions of
opposition, even when intemperately phrased, employees
are entitled to the protections of the Act. See Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers, Local No. 433 (The Associated General Con-
tractors of California, Inc.), 228 NLRB 1420 (1977), enfd.
600 F.2d 770 (9th Cir. 1979), Local 28, Sheet Metal Work-
ers International Association, AFL-CIO (Treadwell Corpo-
ration), 243 NLRB No. 176 (1979). Wheeler's response
was directed at, and was related to, this protected oppo-
sition and tended to restrain employees in their expres-
sion of such opposition. Accordingly, I must find that
the General Counsel has sustained his burden of proving
that Respondent Local 426 has violated Section
8(b)(l)(A) in this regard.
In the election conducted on June 3, both Wheeler and
Lauwers retained their positions. Wheeler prevailed over
Russell by some 68 votes out of 528. Lauwers secured a
majority in the three-way race with Lamont and Nagy.
C. Layoff and Recall of the Swing Shift
1. Alleged discrimination against swing shift as a
group
Much of the work performed by the rodbusters is con-
tingent upon work performed by other employees. With-
out preparatory and sanitation work of the employees
represented by the Laborers Union, rebar work comes to
a near standstill. On May 1, the Laborers Union began a
strike and the laborers employed by Bechtel withheld
their services. As the ironwork progressed as far as it
could without the laborers' support, Bechtel began to lay
ironworkers (and members of other crafts) off. As of
May 1, Bechtel had employed approximately 95 rebar
ironworkers on the day shift and 41 on the swing shift.
Between May I and 23, that complement was reduced to
14 on the day shift and zero at night. The last 22 swing
shift rodbusters, including foremen, general foremen, and
lead general foremen, and including most of the alleged
discriminatees herein, were laid off on May 23.
All of those who were laid off received Bechtel
"Notice of Termination" forms indicating that they had
been laid off in a reduction in force caused by a strike.
BECHTEL POWER CORPORATION 1261
Each person's form was marked as "eligible for rehire,"
with no replacement required. According to the credible
testimony of Ron Weatherred, Bechtel's senior labor re-
lations representative, checking of the "eligible for
rehire" box meant only that the employee was not termi-
nated for cause and was therefore acceptable to the em-
ployer if referred by the Union. The "replacement re-
quired" box, Weatherred testified, was obsolete and was
always marked "no" so that the Company did not experi-
ence difficulties with the Union sending an immediate re-
placement for the terminated employee when its business
manager received his copy of the notice. The termination
notice form was never used as a means of remanning the
project.
On May 23, after the layoffs were announced, General
Foreman Sokalski was wished well by Bud Rice, the su-
perintendent, and was told, "Joe, as quickly as this is
over, we look for you back." Rice did not tell him how
his return would be accomplished. Similarly, Rice told
Foreman Robert Carriveau that he should "keep his keys
[to the tool boxes] because [he] would more than likely
be one of the first men back on the job." At the same
time, however, the ironworkers were told by Jim Eddy,
the night shift steward, "that if they wanted to get back
on the job, [they] would have to call the hall and put
[their] names on the list down there." Eddy also told the
employees that it was likely that some of them would
not be coming back to that job. On hearing this, Lead
General Foreman (and Charging Party) Lamont went to
Superintendents Rice and Reed and asked whether there
was any problem with the laid off employees coming
back when the job started up again. He was told that
they "saw no reason at all."
The General Counsel contended that the May 23
layoff was a "temporary" layoff in the sense that a layoff
in an industrial setting might be temporary with the ex-
pectation that those who were laid off would be recalled
to their former positions. In so contending, he relied es-
sentially upon the testimony of George Simpson, a laid-
off rodbuster who had previously been a foreman. Simp-
son merely testified that, in layoffs which he had experi-
enced in 1973 and 1974 when he returned to the job pur-
suant to referrals from the Union, he saw "almost the
same" employees as he had worked with previously.
This testimony, together with the ambiguous statements
attributed to Rice and Reed and the repetitious reference
to the layoff as "temporary" by other laid off employees,
falls woefully short of establishing any practice of giving
priority to the employees who had been laid off when it
came time to reman the job.
On June 15, the Laborers dispute was settled and
Bechtel began to reman the job. Lamont called day civil
engineer Peterson and was told that a list of those to be
recalled, by name, had been prepared by Robert Woles-
lagle and given to Holman, the field superintendent. Wo-
leslagle was another civil engineer who was substituting
for Superintendent Rice.
Holman, who, as previously noted, had the exclusive
responsibility for calling the Union for manpower, ac-
knowledged that a list of the ironworkers who had pre-
viously worked on the night shift had been prepared
without his authorization and had been given to him at
the time he placed his call for manpower. He disregard-
ed the list and subsequently discarded it. On June 16, he
called Wheeler and placed a request for the referral of a
certain number of rodbusters for the day shift and for
nine ironworkers to begin work on the night shift start-
ing on Monday, June 19. None were requested by name,
and he did not specify any preference for those with
prior experience on the Midland site. He did request one
cadwelder, one stickwelder, and the referral of some
who could be promoted to foremen.
Because of the flow of the work, and its dependence
upon the work of other crafts, the ironwork could not be
fully staffed to its prior level immediately, and, indeed,
the night shift never returned to the complement it had
at the beginning of May. Holman gradually built up the
night shift, from June 19 through August, to a peak of
about 28 employees. In this regard, the remanning fol-
lowing the layoff closely resembled the remanning which
followed the 1974 layoff as described by Simpson. After
the initial staffing, the night shift (preferred by many em-
ployees) was staffed by transfers from the day shift. Ad-
ditional referrals went on the day shift. From August the
swing shift remained at the level of 28 for another 4 or 5
weeks and then began a gradual decline until it was re-
duced to three rodbusters on October 16.8
The General Counsel asserted that the core of the po-
litical support for Russell and Lamont was on Bechtel's
swing shift, and that, because of that support, Local 426
discriminated against those employees in referring men
to the job on and after June 19. Between May 1 and
May 23, that entire shift, approximately 41 employees,
was laid off. Pursuant to Bechtel's call, nine rodbusters
were referred to the night shift on June 19 (a 10th,
Lamont, secured his own reinstatement on that date, as
discussed infra). Six of these had been employed on that
shift on May 23. Of those six, one was the steward,
Eddy, who was presumably a Wheeler supporter. The
other five had all donated money to Lamont's campaign,
as evidenced by a list General Foreman Sokalski had
maintained, and were, presumably, supporters of Lamont
and Russell. ? The remaining three employees had all
worked at the site until May 10; two of them had been
night shift employees who had financially supported La-
mont's candidacy.
In the weeks that followed June 19, all but four of the
remaining ironworkers laid off from the swing shift on
May 23 returned to employment at the site. One returned
June 22, one on June 26, another on June 30, and seven
in July and early August. The swing shift reached its
peak by August 21, at which time it had 28 rodbusters.
Of these, 6 had been laid off from that shift on May 10,
14 were of the May 23 layoff group, 3 others had been
laid off on other dates in April and May, and only 5
e Other than Howard Lamont's contention that he was laid off on Oc-
tober 16 in violation of Sec. 8(a)(4) and (1) of the Act, it has not been
contended that either the failure to reman the job to its prior levels or
the reduction of the work force in September and October violated the
Act.
I It is noted, however, that, according to the testimony of Robert Car-
riveau. "almost every man in the local has contributed money to almost
anybody that was looking for campaign funds." This tends to weaken the
evidence establishing the General Counsel's assertion that the swing shift
was a stronghold of support for Lamont and Russell.
BECHTEL POWER CORPORATION 261
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were either completely new hires or had not worked at
the site since 1977. Of the 18 employees laid off from the
swing shift on May 23 who eventually returned to the
site, all but 4 returned to that same shift. Those four re-
turned, but to the day shift.
Thus, of the 41 swing shift positions which existed as
of May 1, Bechtel remanned only 28, or 70 percent. Of
the 28 employees on the fully remanned swing shift, 20,
or approximately 71.5 percent, had been on that same
shift between May I and May 23. Of the 22 swing shift
rodbusters laid off on May 23, 18 were referred back to
the site, 81.8 percent. Of those same 22, 14, or 63.6 per-
cent, came back to the same shift. And, while only 10 of
the ultimate 28 positions were remanned on June 19, 90
percent of those positions were filled by supporters of
Russell and Lamont, 70 percent with persons laid off
from that shift on May 23.
Contrary to the General Counsel's contentions, the
employees involved herein had no greater rights to be
referred to the Midland site, or to any particular shift on
that project, than any other qualified journeyman iron-
worker who sought the Union's referral. Neither the
contracts between Bechtel and the Union, the practice of
the parties, nor the usual practice in hiring hall situations
(see, e.g., Teamsters Local 959, State of Alaska, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Ocean Technology,
Inc.), 239 NLRB 193 (1979)) gave those employees any
basis to believe that they were entitled to recall at the
conclusion of the Laborers strike. Neither did the am-
biguous remarks of Superintendents Rice and Reed give
them any rights to a recall such as one might expect in
an industrial setting. And, I am convinced that Bechtel
did not seek the referral of any rodbusters on any basis
other than the numbers needed to man the project. Con-
sidering, therefore, the absence of any recall rights, the
statistical analysis of the actual recall leads me to con-
clude that, as a group, the laid-off employees did as well
as, or better than, one would expect in a nondiscrimina-
tory hiring hall system. At the very least, it appears clear
that a statistical analysis fails to sustain the General
Counsel's burden of proving discrimination against mem-
bers of the swing shift as a group.
2. Alleged individual discrimination in recalls
(a) Howard Lamont-As noted, Lamont was a lead
general foreman on the swing shift at the time of his
layoff. There is no question but that he was a fully satis-
factory, perhaps even superior, supervisor.
Lamont never signed the list for referral back to the
Bechtel project, notwithstanding that he had heard the
steward's instructions to do so. According to his uncon-
tradicted testimony, Lamont called Peterson who had
been the swing shift project manager but was then the
day shift civil engineer, on June 15 in regard to the re-
manning of the job. Peterson, Lamont testified, asked
him if he had been called by his business agent, and,
when Lamont said that he had not, told him that he
should have been because he was called for. Peterson
told him to report to the site on Monday (June 19) if he
did not get a call. There was some discussion of a list of
swing shift ironworkers which Woleslagle had prepared
for Holman's use (and which, as has previously been
noted, Holman disregarded in his manning of the shift).
Lamont reported to the job on June 19 and, even
though he lacked a referral, was processed in. This was
at least the third time Lamont had secured a job at this
site; it was the first time he did so without a referral
from the Union. About 6 p.m., Lamont received a call
from Peterson, who told Lamont that the steward had
called him [Peterson] about the referral, and that Lamont
would have to leave the job. Moments later, Peterson
called Lamont back and told him to stay. Because he had
already been processed, and because of Lamont's perhaps
mistaken impression that he had been told to report back
to work on June 19, Bechtel decided to keep him on the
payroll. Peterson asked Lamont to try to get a referral
from the Union "to more or less stay up with the rules."
Lamont called Wheeler and requested a referral. When
Wheeler refused to give him one, Lamont accused
Wheeler of being influenced by politics. Wheeler told
Lamont that he didn't care what Lamont thought, that
Lamont was not "that... important."
On June 20, when he reported to work, Lamont was
told that he was going to be cut back to foreman. The
supervisor who told him, Watkins, suggested that he go
along with it for his own good. Lamont then discussed
the remanning with Peterson. Peterson told him that
Weatherred had an agreement with Wheeler to man the
job by number and not by name.8 At Lamont's request,
Lamont met with Weatherred shortly thereafter. Lamont
told Weatherred of certain personal problems he was ex-
periencing and said that he didn't need to be hassled on
the job as well. Weatherred told him that he could not
"take on city hall without somebody getting pissed off at
[him]," that Wheeler's office was powerful, and that he
(Weatherred) had to live with Wheeler for another 3
years. 9
The evidence, viewed in the light most favorable to
the General Counsel, does not support the General
Counsel's contentions. In sum, Lamont did not seek a re-
ferral from Local 426 before reporting to the site on
June 19; he was hired because of a misunderstanding be-
tween himself and higher management; Local 426's ste-
ward pointed out or objected to his hiring without a re-
ferral which was contrary to the agreements between
Bechtel and the Union; and, when Lamont asked Wheel-
er for a post-hiring referral to which he was not entitled,
Wheeler refused to give him one. There is no probative
evidence that the Union discriminatorily refused to refer
him to the site, sought to prevent his hiring, or objected
to his continued employment beyond what appears to be
8 While Lamont may have understood Peterson to be saying that this
agreement had been entered into only recently, the credible record evi-
dence indicates that this was the understanding and practice of the parties
since the opening of the project.
9 Weatherred recalled telling Lamont, in this conversation, that Peter-
son had no authority to hire manpower. He was not specifically ques-
tioned about, and did not make any testimonial reference to, the com-
ments attributed to him by Lamont. In the absence of Weatherred's spe-
cific denial, I credit Lamont.
BECHTEL POWER CORPORATION 1263
Eddy's legitimate attempts to enforce the parties' hiring
hall agreements. 'o
(b) Joseph Sokalski-Sokalski had received a union re-
ferral to the Midland site in March 1977 and worked
there, as general foreman and foreman (at the date of his
layoff), until laid off on May 23. As previously noted, his
superintendent, Rice, implied that Sokalski would be
back as soon as the Laborers dispute ended. At the same
time, however, Sokalski heard the union steward, Eddy,
tell the laid off rodbusters to sign the Union's list if they
desired to return to that jobsite. Sokalski disregarded this
instruction because he expected the Employer to recall
its supervisors.
When no call to return to the Midland site was forth-
coming by the end of June, Sokalski called Himmel-
berger, a night shift engineer with whom he had worked.
Himmelberger told him, "Joe, I know definitely your
name was there to come back first and I hope that you
get back as quickly as possible." Sokalski subsequently
came to the site and spoke with Rice. Rice assured him
that Bechtel had been satisfied with his work and wanted
him back. Rice said that the problem appeared to lie be-
tween Bechtel's personnel department and the Union's
business manager. Rice, as noted, had no responsibility in
regard to the hiring of employees.
Sokalski did not call or go to the Union until August
9. On that date, while he was at the hall collecting sup-
plemental unemployment benefits, Wheeler saw him and
asked if he was available. Sokalski replied that he was.
On the following day, Wheeler called Sokalski's home
and referred him to Midland as a journeyman on the day
shift. He continued to work there until the layoff of Oc-
tober 13.
Thus, it appears that Sokalski neither sought nor ex-
pected the Union's referral until August 9. In his failure
to seek referral, he completely disregarded the steward's
instruction to get his name upon the list maintained for
referrals to this site. As soon as he made known his inter-
est in returning, he was referred. On the basis of these
facts, and my earlier conclusion that these employees en-
joyed no seniority or other rights to reinstatement to the
site merely because of their former employment there, I
must conclude that the General Counsel has failed to
prove that Local 426 discriminatorily refused to refer
Sokalski. There being no evidence of union discrimina-
tion, it follows that the corresponding allegation against
Bechtel must fall.
(c) Robert Carriveau-Carriveau had been referred to
the Midland site in October 1976, and for about 14
months had been a foreman on the swing shift." Like
Sokalski, Carriveau heard encouraging remarks from
Rice in regard to his ultimate return to the site at the
conclusion of the Laborers strike, and, like Sokalski, Car-
riveau heard Eddy tell the employees to register with
the union hall if they wished to be referred again to this
'o Weatherred's remarks to Lamont on June 20 are ambiguous, and are
not attributable to the Union. No conclusion is warranted from those re-
marks either that Wheeler was ill-disposed toward Lamont because of his
political activity or that Wheeler had sought to prevent Lamont's em-
ployment on the project.
1 In view of my conclusions herein, it is not necessary to resolve
issues of whether foremen on the site possessed supervisory authority or
the effect of such authority upon their referral rights.
site. He also heard Eddy tell employees that it was prob-
able that not all of them would get back to the Midland
site.
In early June, Carriveau called and then went to the
Union's hall in Flint, Michigan. The business agent in
charge of that hall, Charles O'Rourke, told him that he
would have to register with the Detroit hall in order to
get referred to the Midland project. O'Rourke also told
Carriveau "[t]hat there would probably be a lot of guys
hurt on the recall." O'Rourke did not explain what he
meant by that ambiguous remark. Carriveau called the
Detroit hall sometime in early June and requested that
his name be placed on the list for the Bechtel job.
Carriveau heard that ironworkers were being referred
to the Midland site on June 19,12 and called Wheeler on
that morning. He related his information concerning
those referrals to Wheeler and asked why individuals
who had not previously worked on the job were being
sent out to the swing shift. Wheeler told him that those
individuals had as much right to the referrals as he did.
"The discussion got a little bit heated," according to
Carriveau. He asked Wheeler where his name was on the
list and was told that it was down next to a "dobey-
man."'3 With some prodding by the General Counsel,
but without contradiction, Carriveau also recalled
Wheeler saying, "[s]omething about if I didn't keep my
mouth shut . . . my stepson wouldn't be working on the
job either."
About July 14, Wheeler called Carriveau and gave
him a referral back to the site. He asked to go back to
the same shift and place on which he had worked prior
to the layoff, but Wheeler told him that he would have
to go back on the day shift before he could return to
nights. All restaffing of the night shift was being done in
that manner. He returned as a journeyman. Approximate-
ly 75 rodbusters had been referred to the Midland site
before Carriveau, including his stepson, Basil Rummer,
who had been referred on June 26. Nearly all of these
had worked at the site in April and May. Carriveau was
in a group of six referred to begin work on July 17. A
total of 14 rodbusters were referred subsequent to that.
Based upon the foregoing, I must conclude, in essential
agreement with the General Counsel, that Wheeler un-
lawfully threatened Carriveau with a denial of referrals
for himself or his family members if he continued to
challenge or question Wheeler's authority or practice in
making referrals. Whether Carriveau was right or wrong
in his belief that he was entitled to referral ahead of
someone who had not previously worked at the site is
immaterial. He had a statutorily protected right to ques-
tion how the referrals were being handled, and Wheel-
er's statements tended to interfere with that right. Ac-
cordingly, I find that, by those statements, Respondent
has violated Section 8(b)(1)(A) of the Act. It does not
12 Among those referrals was his brother, George Carriveau, who, like
himself, was a supporter of Russell and Lamont.
Is Carriveau defined a "dobeyman" as a member of a different local
and claimed that dobeymen were referred only after all of the Local's
members were referred. There was no evidence in this case that, either
by contract or practice, dobeymen received any lesser preference for re-
ferral as journeymen than any other jobseeker at Respondent's hall. The
Powerhouse agreement appears to give some preference to local residents
only for foremen positions.
BECHTEL POWER CORPORATION 263
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessarily follow, however, that Carriveau was unlaw-
fully discriminated against in the timing of his referral to
the site. As Wheeler told him, all applicants had an equal
right to referral. The project was manned progressively
as the need for rodbusters increased, and not all of the
former employees were needed to reman the job. Con-
sidering these factors, and the fact that many active sup-
porters of Russell and Lamont were referred, I must
conclude that the evidence does not warrant a conclu-
sion that Carriveau would have been referred earlier had
he not campaigned for Lamont and Russell or questioned
Wheeler's authority.
(d) George Simpson-Simpson worked at the Midland
site as a journeyman from December 1976 until laid off
on May 23. He claimed to have campaigned for Russell
and Lamont, passing out literature, at that site and an-
other in Alpena, Michigan.
Simpson heard Eddy instruct the employees to sign up
at the hall if they desired to return to Midland, and
asked Joe Sokalski whether they had to do so. Sokalski
told him that he didn't; that they would come back as
they were called. He did not request placement on the
list for the Bechtel job until June 14 when he learned
that the Laborers dispute had been settled. At the time
he did so, he was working on a job which he had begun
about May 25. He remained on that job until June 19 and
then worked on another job as an ironworker several
days per week, until mid-July.
About July 10, Simpson called Wheeler at the hall and
asked where his name was on the list. Wheeler answered
that Simpson had been "badmouthing" him all over the
northern area. Simpson denied saying anything other
than Wheeler had heard at the election and that subject
was dropped. They discussed problems Simpson was
having with contractors, and Wheeler told Simpson not
to worry; that he would get back on the Midland job
sometime.
Within a couple of days of their conversation, by July
14, Wheeler called Simpson's home and referred him to
the Midland job. Simpson returned to that project on
Monday, July 17.
As he did with Calderon and Carriveau, I find that
Wheeler made statements to Simpson which would tend
to restrain an employee in making protected remarks
critical of the business manager. Thus, when Wheeler re-
marked about Simpson's "badmouthing" of him by way
of responding to Simpson's question as to his status on
the referral list, the message was clear: Your position on
that list depends upon my good will. That is an imper-
missible threat. It "stands as a warning to employees that
the favor and good will of responsible union officials is
to be nurtured and sustained." See International Long-
shoremen's Association, Local No. 1581, AFL-CIO (Man-
chester Terminal Corporation), 196 NLRB 1186, 1187
(1972).
Notwithstanding his unlawful threat, Wheeler did refer
Simpson almost immediately after their conversation. He
was referred in the same group as Carriveau, whose re-
quest for referral was made at or about the same time as
Simpson's. Considering all the factors in regard to the re-
ferrals as previously enunciated, including that Simpson
was fully employed through June 19, and employed on a
part-time basis from then until referred to Bechtel, and
was thus not in an out-of-work position warranting refer-
ral ahead of those who were not so employed, 4 1
cannot find that Respondent Union discriminatorily
denied or delayed Simpson's referral.
(e) Harry E. Ruter-Ruter was a journeyman iron-
worker laid off from Bechtel's swing shift on May 10.
He actively campaigned for Russell and Lamont, passing
out literature and scheduling a May 18 rally for Russell
in Lansing, Michigan. In late May, Ruter signed an out-
of-work list at the Flint hall. He was aware that the list
was not the one from which the referrals to the Midland
site would be made. Union Steward Eddy told him at
that time that, if he wanted to go back to Midland, he
would have to call the Detroit hall. He did so and his
name was placed upon the appropriate list.
Ruter found work with another contractor around
June 15. On June 20, he called the Flint hall, having
heard that the Laborers strike was over. The Flint busi-
ness manager, O'Rourke, told him, in response to his in-
quiry about getting back to Midland, "[T]hat is some-
thing you are going to have to take up with Dick. He
knew how you voted."' 5 Ruter then called the Detroit
hall and told the secretary that he wanted to be on any
list that existed for the Midland project. He also told her
that he was working. He was, in fact, employed from
about June 15 until the first week in July and again on
and after July 15. He was never called to return to the
Midland site.
O'Rourke's statement to Ruter in regard to Wheeler's
knowledge of how he voted (for Russell) warrants that a
close look be taken at the Union's failure to refer Ruter
back to the Midland site. It is not, however, conclusive
evidence of discrimination. Noting the absence of any
recall rights and that Ruter was not in an "out-of-work"
position at the time he sought the referral or throughout
most of the period when referrals were being made,
while others were, I must conclude that there is insuffi-
cient evidence to establish that Respondent Union discri-
minatorily denied a referral to him.
(f) Joseph Hernandez-Hernandez was a journeyman
ironworker laid off from the swing shift on May 10. He
had supported Lamont and Russell by wearing and pass-
ing out their campaign insignia and by working with
Ruter in setting up the rally in Lansing. When laid off,
Hernandez had been told to register with the union hall
for future referral to the Bechtel job. He did not register,
however, until about May 31.
On June 19, Hernandez called Wheeler in Detroit and
asked if the hiring had started for Bechtel. Wheeler told
him that the dispute had just been settled, that he was
just starting to call men back, and that he had not called
everybody back yet. Hernandez reminded Wheeler that
he was on the referral list and wanted to return to that
'4 While being unemployed does not appear to have been a prerequi-
site to referral, it does appear to be a factor considered by Wheeler.
is This testimony stands uncontradicted. The statement by O'Rourke,
an admitted agent, was not alleged as a violation of the Act. It is, howev-
er, closely related to the allegations of the complaint and was fully liti-
gated. See Iron Workers Local 433, supra. Accordingly, I find that by this
statement Respondent Union has restrained and coerced employees in
violation of Sec. 8(b (1XA) of the Act. Inrernational Longshoremen Asso-
ciarion. Local No. 1581, supra.
BECHTEL POWER CORPORATION 1265
job. Wheeler told Hernandez that he would get back to
him and that there was work around Flint, to which
Hernandez expressed some interest. As soon as they
completed their conversation, Hernandez received a call
from O'Rourke at the Flint hall. On being asked by
O'Rourke whether he wanted to go to work, Hernandez
drove to Flint. At the Flint hall, Hernandez learned that
he was being referred to a particular job because of the
contractor's need for an employee from an ethnic minor-
ity. Hernandez protested about the nature of the referral
and was told that the job was there if he wanted it.
During their conversation, Hernandez heard O'Rourke
answer a phone call and tell an unidentified caller that
Wheeler was sending employees to Midland, and that the
caller should contact Wheeler immediately. Hernandez
and O'Rourke continued to argue about his referral. In
the course of that argument the following exchange took
place:
I [Hernandez] asked him how come I couldn't go
on the Midland job and he was upset. We were
both upset. We both swore back and forth. But he
told me . . . you know, if you want to get down to
Midland, you have to talk to Dick Wheeler, he
says, I do not want to get in the middle of this. You
know what you have done. And I says, what do
you mean what I have done . . . I just came down
here looking for a job, and he says, well, you know
exactly what you did during the election, he said,
there are some of you guys that are on the list, and
I said what list, and he says, well, you know what I
am talking about.
Hernandez accepted the referral which O'Rourke had of-
fered him and worked for about 2 weeks. Hernandez
then volunteered to be laid off. Hernandez testified that
he did so in anticipation of being recalled to Midland.
Not receiving a referral to the Midland site, Hernan-
dez called Wheeler on July 20. He asked Wheeler why
he had not been sent to that job yet. He was told that
Wheeler had not gotten around to him, and that Wheeler
had many rodbusters in the Local. Wheeler promised to
get back to Hernandez as soon as possible. In early
August, after Hernandez found a job out of another
local, he called Wheeler to ask about certain fringe bene-
fits. Wheeler suggested that he might be able to get Her-
nandez back on the Midland site because of his minority
status, but Hernandez said that he already had a job.
When Wheeler reminded Hernandez that his job would
only last for another week, Hernandez told Wheeler,
"[O]kay, whenever you can call me, call me." Hernandez
never received another referral to the Bechtel job.
As in Ruter's case, the uncontradicted statements of
O'Rourke create a suspicion that the Union was discri-
minating against Hernandez because of his campaign ac-
tivities. And, as in the case of Ruter, the probative evi-
dence fails to sustain the General Counsel's burden of
converting that suspicion into a conclusion. Thus,
O'Rourke's statements attributing certain motivations to
Wheeler, while independently violative of Section
8(b)(l)(A), 1' do not provide particularly substantial evi-
l6 See fn .13, supra
in the absence of some evidence of communications be-
tween Wheeler and O'Rourke on the subject of these re-
ferrals. And those statements do not overcome other evi-
dence negating the suspicions of discrimination. In that
regard, I note that Hernandez had no priority for a refer-
ral in the initial group to be referred for June 19 or to
Bechtel generally, that he received a job referral (albeit
to a "minority" slot) immediately after he spoke to
Wheeler on June 19, that he volunteered to be laid off
from that job, that between July 20 and early August
only 8 to 12 rodbusters were referred to Bechtel (some
of whom were known supporters of Lamont and Rus-
sell), and that he rejected a possible opportunity to
return to Bechtel when offered by Wheeler because he
had another week to work on his present job. Finally,
when his job ran out, Bechtel was no longer calling for
rodbusters.
(g) James Herring-Herring was a journeyman who
was laid off with the rest of his shift on May 23. Accord-
ing to his own testimony, he participated "vaguely" in
the election campaign, wearing insignia for Lamont and
Russell. After his layoff he heard that he should put his
name on a list for referral back to the site and did so,
possibly in early June. On Saturday, June 17, he called
Wheeler to let Wheeler know that he was interested in
getting on the job. Wheeler told him that he didn't know
when they were going to be rehiring. He called again on
June 24, and Wheeler told him that he would have to
wait his turn. Wheeler also asked him about his prefer-
ence for the night shift.
Herring secured another ironworking job sometime in
July and worked nearly 200 hours in that month. On or
about July 22, Wheeler called and asked Herring wheth-
er he still wanted to go to the Bechtel site. Herring said
that he did, and Wheeler told him to report there on
Monday, July 24. Herring did so and has continued to
work for Bechtel since that date.
The foregoing evidence, considered in light of the re-
duced manning requirements at the Bechtel site after
June 19, fails to sustain the General Counsel's burden of
proof in regard to the alleged discrimination against
James Herring.
(h) Jack Palmer-Palmer was laid off on May 23. He
took no action to seek referral back to the Bechtel job
until June 21. On that date, he called the Detroit hall,
asked about returning to that job, was asked if he had
put his name on the list, and then directed the secretary
to place his name on that list. He called the hall again on
the next 2 days, but was never referred back to the
Bechtel site. According to the Union's fringe benefit
fund records, Palmer has not worked in the trade since
June. The record contains no evidence of his having en-
gaged in any protected activities beyond donating to La-
mont's campaign. From the foregoing, particularly con-
sidering his late request to be referred back to Midland,
and notwithstanding that he was never referred back to
that job, I must find that there is insufficient evidence of
discrimination against him by either the Union or Bech-
tel to sustain the General Counsel's burden of proof.
(i) Norman Bidigore and David Calderon--Bidigore was
laid off from the swing shift with the group that left
prior to May 23; Calderon was laid off on May 23. Bidi-
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gore's campaign activity was limited; he wore a "Rus-
sell" insignia, "possibly" gave some insignia out, and
"possibly" spoke to a couple of people at the union hall
on the day of the election. Calderon's protected activities
were more extensive. He had campaigned actively for
Russell and Lamont and, as previously discussed, had
been involved in arguments with both Wheeler and
Eddy which related to the campaign.
About June 14, Bidigore and Calderon went to the
Detroit hall looking for work. Bidigore asked the
Union's secretary to place both of their names on the list
for referral to the Bechtel project and, he testified, ob-
served her do so. Bidigore also signed the general "out-
of-work" list; Calderon did not. In late June, O'Rourke,
business manager of the Flint hall, called Bidigore and
referred him to another rebar job. Calderon secured his
own employment at that same job. The Union's fringe
benefit fund records establish that they each worked one
full week or more in June. They continued working, es-
sentially full time and with overtime in July, until Octo-
ber.
On a Saturday in August, Wheeler called Bidigore and
asked him if he wanted to go back to Midland. Bidigore
refused because he was already working. Bidigore then
called Calderon to see whether Calderon had received a
referral from Wheeler. He had not. Wheeler never gave
Calderon a referral back to that job. However, sometime
in August, Wheeler did call Calderon to offer him a re-
ferral to a job in Charlevoix, Michigan. He rejected the
referral, stating his preference for Midland. The record
does not establish whether Wheeler's call to Calderon
preceded or followed his call to Bidigore.
The record is totally lacking any evidence to warrant
a conclusion that Bidigore was discriminately denied a
referral to the Bechtel site. He sought a referral later
than many of the other employees and had no greater
right to, or priority for, such a referral than anyone else.
Any suspicion of discrimination is dispelled by the fact
that he received a union referral to a long term job
(albeit from the Flint hall) and subsequently was offered
and declined a referral to the Midland job.
Calderon's application for a referral to Midland was as
late as Bidigore's. The failure to refer him, however,
must be especially closely scrutinized because of the
threats directed at him by Wheeler and because, after
calling Bidigore about going back to Midland, Wheeler
did not make the same offer to Calderon, whose name
was next on the list. Even considering those factors, I
must conclude that the evidence is insufficient to estab-
lish discrimination. Thus, Calderon was working full
time by June 20. Moreover, Wheeler did offer Calderon
a referral although not to the Bechtel job. Other than
there being some indication that Calderon preferred to
work in Midland, there is no evidence to establish that a
referral to another site, or the failure to offer a referral
to someone who had another job, was discriminatory.
(j) Other swing shift employees-General Counsel's
complaint contended that other named swing shift em-
ployees, who did not testify, and some whose names
were not known to the General Counsel were victims of
union-caused discrimination in regard to their recall to
Bechtel's swing shift. Of the named alleged discrimina-
tees, the records in evidence indicate that Dennis
Newman, Donald Boutwell, and Boyce Webb were on
the swing shift as of May 1, but not on May 22. They
were, presumably, laid off on May 10. Of these, Webb
received a referral to the site on July 24, the others were
not referred there. However, Boutwell worked else-
where for 126 hours in July; Newman had a job in part
of June and all of July and August. Those same records
establish that Rick Lamont, Michael Gordon, Herman
Swantek, Jessie Dunaway, James Jurecki, and Frank
Urbina were on the swing shift until the May 23 layoff.
Rick Lamont was recalled July 17. Urbina received re-
ferrals on July 10 and 24. The other four were the only
members of the swing shift who had been laid off on
May 23 who did not receive referrals back to the Bech-
tel project. To the extent that their other employment
might be relevant to their right to referrals, the records
reveal that all but Gordon had other employment in
June, and all of them had jobs during July and August.
The record before me does not establish that any of
these employees engaged in any particular campaign ac-
tivities or supported any of the candidates in the June 3
election. Neither does the record establish that any of
these individuals sought referral to the Bechtel site.
Based upon the foregoing, and all that has been dis-
cussed heretofore regarding recall rights and procedures
at the Bechtel jobsite, I must conclude that there is insuf-
ficient evidence to establish that the Union caused or at-
tempted to cause Bechtel to deny or delay recall to any
of these employees.
Conclusions as to the Alleged Discrimination in
Recalls
The General Counsel's contentions with respect to the
remanning of the swing shift were based, at least in part,
on the faulty premises that the layoffs of May 10 and 23,
occasioned by the Laborers strike, were "temporary,"
and that the laid off employees had some priority to be
recalled to the site according to their seniority or experi-
ence. These premises find no support in the contracts or
practices of the parties or in the practices in the con-
struction industry. The recall of these employees, I have
found, was consonant with the established contractual
procedures and practices. The evidence failed to sustain
the General Counsel's burden of proving, by a prepon-
derance of the evidence, that the Union caused or at-
tempted to cause Bechtel to discriminate against the
swing shift employees, either individually or as a group,
for reasons prohibited by the Act. Accordingly, I shall
recommend that the complaint allegations so alleging be
dismissed. It follows that the allegations that Bechtel vio-
lated Section 8(a)(3) and (1) of the Act by its failure to
recall certain employees with knowledge that they were
being discriminatorily denied referrals by the Union must
similarly be dismissed.
3. The Union's alleged misrepresentations
concerning manning
The General Counsel contended that the Union
breached its duty of fair representation by falsely inform-
ing ironworker employees about the manning situation at
---
BECHTEL POWER CORPORATION 1267
the Bechtel site. Specifically referred to were Wheeler's
conversations with Carriveau, Herring, Hernandez, and
Palmer.
Wheeler's statement to Carriveau, to the effect that
Carriveau's name was on the recall list next to a "dobey-
man," has been described supra. So has his conversation
with Hernandez, telling him that "the dispute was just
settled . . . and I haven't called everybody back yet."
Nothing in either of these conversations could be consid-
ered misleading. Palmer did not speak to Wheeler; he
called the hall three times after the remanning had
begun, placed his name on the Bechtel list, and tried un-
successfully to reach Wheeler. The evidence of his ef-
forts fails to support the complaint's allegation. Only
Wheeler's conversation with Herring could possibly fit
within the ambit of that allegation. Herring called
Wheeler on June 17, having heard that the hall would be
calling for men. He asked Wheeler about the job and, he
testified, was told "he [Wheeler] didn't know when they
were going to be rehiring." It is possible that this state-
ment was not accurate; it is similarly possible that it re-
flected a lack of knowledge by Wheeler as to when
Bechtel might call for additional rodbusters. Whichever
is the case, it does not appear that the statement caused
Herring to act to his own detriment or to suffer any loss.
Herring's name remained on the referral list, and, as
Wheeler told Herring in a conversation on the following
Saturday, Herring would have to wait his turn to be re-
hired. I fail to see how this misstatement, if in fact it was
such, constituted a breach of the Union's fiduciary re-
sponsibility toward its members. I shall therefore recom-
mend that this allegation be dismissed.
Alleged threats and discrimination by Bechtel
The initial charges herein, Cases 7-CA-15336 and 7-
CB-4182, were filed by Joseph Sokalski (a general fore-
man at the time of his layoff) on July 10. They alleged
discrimination by both the Employer and the Union
against a number of rodbusters, including Robert Carri-
veau. A second set of charges, Cases 7-CA-15384 and 7-
CB-4196, alleging collaboration between Bechtel and
Local 426 to keep him off the jobsite, was filed by
Howard Lamont on July 24. By that date, Lamont had
resumed his former position as general foreman. It is the
filing of these charges, and alleged reactions by Bechtel
to them, which gives rise to this aspect of the consolidat-
ed cases.
On July 17, Carriveau returned to the Bechtel site as a
journeyman. He immediately requested and was granted
a meeting with Ron Weatherred, Bechtel's labor rela-
tions representative. At that meeting, Carriveau com-
plained about not having been recalled on June 19 and
about the failure to recall him to his former shift (swing)
and position (foreman). Weatherred explained the hiring
agreements and practices in existence since 1973 (as pre-
viously described) and, according to Carriveau, told Car-
riveau that he was "damn lucky to be . . . back." Short-
ly before this meeting, Weatherred had received copies
of the charges filed by Sokalski which named Carriveau
among the discriminatees, and he asked Carriveau if he
had filed the charge, whether his name was on it, and
whether he had any problem or complaint. Carriveau ac-
knowledged that his name was on the charge and said
that he wanted to clarify what was going on, including
the procedure for getting back on the swing-shift.
Carriveau testified that on July 27 he had a brief con-
versation with Weatherred wherein Weathefred asked
him whether he would consider dropping his charges if
he got back on nights with his original job. Carriveau
claimed to tell Weatherred that it was out of his hands.
Weatherred denied ever participating in any such con-
versation. On the following day, Carriveau was told that
he would be going on the swing shift as of Monday, and
on Monday, July 31, he returned to that shift as a fore-
man.
On August 8, Lamont was called to Weatherred's
office to discuss Lamont's unfair labor practice charge.
Admittedly, Weatherred was perplexed and wanted to
know the basis of the charge. As he testified:
I read the charge, sections of it to Howard and said
I don't know where you are going, Howard. It just
goes around in circles . . . where has the company
wronged you, where have you been denied any-
thing? You came back on June 19th, the first day
that we rehired people for the night shift. You were
made general foreman on June 19th. We stood up
to the flack over your coming out to the job, the
first man on the project ever to be hired without a
referral. We went through that, we kept you. What
is the basis of the charge? Why did you file the
charge? What did we do wrong? This is ridiculous,
it's bullshit. Explain to me where we did wrong.
Lamont could only comment that the charge spoke for
itself. Thereupon, Weatherred
. . advised Lamont that as a general foreman, he
was a member of management functioning in a su-
pervisory capacity and that it was company policy
that any business or action involving charges or a
governmental agency was only to be discussed and
reviewed in the presence of counsel.
They discussed the pressure and friction that Lamont felt
and his concern for his relationship with the Local, with
Wheeler, and with Bechtel. Weatherred, referring to the
difficulties Lamont should have anticipated when he
sought to circumvent the Union's exclusive hiring ar-
rangements, told Lamont, "Well, you can't take on city
hall and not expect to have any pressures or problems or
friction, Howard."' 7 At the conclusion of this meeting,
according to Lamont's uncontradicted testimony, Rice
objected to the "chewing out" given to Lamont and said
that, if called to testify, he would testify that Lamont
was his best general foreman.
Carriveau, although a foreman, filed a grievance relat-
ing to overtime work. A meeting in regard to that griev-
ance was held on August 28 at which time Weatherred,
17 Lamont's recollection of this conversation was considerably less de-
tailed than Weatherred's. He testified that Weatherred ordered him not to
talk to NLRB or other governmental agents about himself or others and
threatened that he would be relieved of his duties. In his affidavit, how-
ever, he stated, "He [Weatherred] said that I shouldn't speak with anyone
from the NLRB without a Bechtel attorney because I was classified as
Bechtel's supervision."
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lamont, Eddy, Rice, and Reed were present. According
to Lamont and Carriveau, Weatherred referred again to
the NLRB charges in the course of this meeting. Carri-
veau recalled him saying, in substance, that the charges
were "bullshit," that Bechtel could not put up with fore-
men and general foremen filing unfair labor practice
charges, and that he would have to do something about
it. Lamont's version, though more abbreviated, was simi-
lar. Weatherred admitted giving Lamont and Carriveau
his barnyard opinion of the charges and stating his objec-
tion to members of management filing charges and griev-
ances. He told them that they were expected to imple-
ment company policy, not file grievances against it. He
denied threatening either of them with discharge or de-
motion because of the charges.
Throughout his testimony, and particularly in regard
to the foregoing events, Weatherred was candid and con-
vincing. His recollections were detailed, and he did not
hesitate to describe events, such as his August 8 conver-
sation with Lamont, which were arguably violative of
the Act. Lamont's testimony and demeanor lacked the
candor and convincing quality possessed by Weath-
erred's. That testimony contained a number of self-serv-
ing statements and, as noted, was in at least one signifi-
cant area at variance with his pretrial affidavit. I there-
fore credit Weatherred to the extent that his testimony
differs from that of Lamont. Similarly, on the basis of
my observation of these witnesses, and noting the some-
times vague and unresponsive nature of Carriveau's an-
swers, I must credit Weatherred over Carriveau.
On August 29, Lamont filed an amended charge in
Case 7-CA-15384. Complaint on that and the other con-
solidated CA and CB charges as filed by Lamont, So-
kalski, and Herring issued on August 31. Bechtel's
answer is dated September 8.
From late August through September, Bechtel pro-
gressively reduced the size of the ironworker force on
the swing shift. One layoff, of approximately 12 rodbus-
ters, took place on September 12. Rice asked Lamont to
prepare a list of rodbusters to be laid off at that time.
On October 13, Lamont was called to Rice's office
and was told that the shift would be cut to two or three.
Lamont, Rice said, was on the list for layoff even though
Rice did not want him to be laid off. 1 8
On October 16, nearly the entire swing shift, including
Lamont, was laid off. Only three rodbusters were re-
tained to perform supporting concrete block work: Jim
Eddy, George Carriveau, and Jim Ingram. Because of
the pending charges, the decision of who would be laid
off or retained was made by Holman in conjunction with
Bechtel's labor relations department, rather than by the
craft superintendent. According to Holman's credible
testimony, Eddy was retained, pursuant to the collective-
bargaining agreement, because he was the steward;
Ingram was retained as one of the journeymen because
he was a certified welder; and George Carriveau was re-
tained as the working foreman rather than Lamont be-
'a Contrary to the assertion in the General Counsel's brief, there is no
evidence that Rice told Lamont that he believed Lamont to be the victim
of a "railroad job." The General Counsel tried to elicit such testimony
from Lamont by leading questions, but Lamont had no recollection of
such a statement.
cause he had been the foreman over that work for the
preceding 6 months, was thoroughly familiar with it, and
was satisfactory to the block masons for whom the work
was being performed. This, he testified, would provide
the greatest continuity to the work. Holman denied that
Lamont's charge-filing activities played any motivating
role in his selection for layoff.
The General Counsel has correctly asserted that the
Act protects supervisors in the filing of unfair labor
practice charges and in the furnishing of evidence and in-
formation relevant to such charges. In General Services,
Inc., 229 NLRB 940 (1977), the Board found violative of
Section 8(a)(4) the refusal to rehire a supervisor because
that supervisor had filed charges. In so holding, it stated,
at 941:
In sum, the Board and the courts have recog-
nized that if the Board is to perform its statutory
function of remedying unfair labor practices its pro-
cedures must be kept open to individuals who wish
to initiate unfair labor practice proceedings, and
protection must be accorded to individuals who
participate in such proceedings.
See also General Nutrition Center, Inc., 221 NLRB 850
(1975), and cases cited therein in footnote 46.
In this case, the General Counsel has alleged that
Bechtel denied Robert Carriveau reinstatement to his po-
sition as foreman on the swing shift and laid off Howard
Lamont on October 16 because they had filed charges
under the Act. The complaints further alleged that
Weatherred threatened Lamont with discharge or demo-
tion if he cooperated in the investigation of unfair labor
practice charges. In regard to this latter allegation, I
have found that, while Weatherred did not make such a
threat, he did tell Lamont that company policy required
the presence of company counsel whenever a supervisor
gave testimony or evidence to a governmental agency.
Inasmuch as a supervisor has a statutorily protected right
to file an unfair labor practice charge free from employer
interference or coercion, it must follow that the supervi-
sor has a similar right to support those charges by the
giving of evidence free from interference or coercion.
See Nash v. Florida Industrial Commission et al., 389 U.S.
235, 238 (1967), wherein the Court stated, "Congress has
made it clear that it wishes all persons with information
about such practices to be completely free from coercion
against reporting them to the Board." To insist that a su-
pervisor give evidence in a case wherein he or she is the
charging party only in the presence of company counsel,
I find, would clearly inhibit the giving of such evidence
and would thereby impede the Board in the performance
of its statutory function. Accordingly, I must find that,
by Weatherred's direction to Lamont not to talk to any
governmental agents outside the presence of company
counsel, Respondent Bechtel has violated Section 8(a)(1)
of the Act. 9
'9 The instant situation is distinguishable from Florida Steel Corporation
v. N.L.R.B., 587 F.2d 735 (5th Cir. 1979). cited, by Bechtel, where the
circuit court, in denying enforcement to the Board's Order (Florida Steel
Corporation, 233 NLRB 491 (1977)), found no violation in an employer's
advising employees of their right to legal counsel when meeting with an
Continued
BECHTEL POWER CORPORATION 1269
Beyond this, however, I cannot find that the evidence
supports the remaining allegations against Bechtel. Thus,
Carriveau was recalled to work in the normal course of
business. All rodbusters who returned after June 19 re-
turned as journeymen on the day shift. From that shift,
some were transferred to the swing shift and some were
promoted to supervision. That is precisely what hap-
pened to Carriveau in short order after he was reinstat-
ed. There is no evidence that Carriveau was treated any
differently than any of the other rodbusters who were
hired after June 19, and the General Counsel's allegation
of discrimination must fall.
Similarly, the General Counsel has failed to satisfy his
burden of proving that Lamont's layoff on October 16
was discriminatory. That layoff, which affected all but
three of the swing shift ironworkers, was economically
motivated; there is no contrary contention. Only three
jobs remained and Lamont was not eligible for two.
Bechtel has furnished reasonable business justification for
retaining George Carriveau for that third position, as the
working foreman, and the General Counsel has presented
no reason why Lamont should have been preferred other
than that he was well liked by his superintendent, Rice.
Moreover, I note that, although it had ample opportunity
to lay Lamont off earlier as the swing shift wound down,
Bechtel retained him until very near the end of the avail-
able work for rodbusters. This is hardly the conduct of a
discriminatorily motivated employer.
Accordingly, I shall recommend that the allegations of
8(a)(l), (3), and (4) discrimination involving Lamont and
Cariveau be dismissed.
ADDITIONAL CONCLUSIONS OF LAW
1. By threatening employees and union members with
loss of employment or union referrals for employment
because they have criticized the performance of the
Union's business manager or the operation of the Union's
hiring hall or opposed the reelection of the Union's busi-
ness manager and other officers, Respondent Union
Local 426 has restrained and coerced employees in the
exercise of their Section 7 rights in violation of Section
8(bX1)(A) of the Act.
2. By prohibiting supervisory personnel who are also
charging parties in proceedings before the National
Labor Relations Board from talking with agents of the
National Labor Relations Board without the presence of
company counsel, Respondent Bechtel has inhibited the
Board's investigation of such charges and has interfered
with, restrained, and coerced employees in the exercise
of their Section 7 rights, and has thereby violated Sec-
tion 8(a)(l) of the Act.
3. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
4. Respondent Union Local 426 did not engage in any
unfair labor practices other than those found herein.
NLRB agent There, the court, contrary to the Board, found nothing in
the employer's actions which would discourage the employees from talk-
ing or giving statements to the Board agent. Requiring the presence of
company counsel while a charging party gave evidence would discourage
the giving of such evidence and would hinder the investigation.
5. Respondent Bechtel did not engage in any unfair
labor practices other than those found herein.
THE REMEDY
It having been found that Respondent Union Local
426 and Respondent Bechtel have engaged in unfair
labor practices in violation of Section 8(bX)(A) and
8(a)(1) of the Act, respectively, it will be recommended
that each Respondent be required to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the entire record, findings of fact,
and conclusions of law, and pursuant to Section 10(C) of
the Act, I hereby issue the following recommended:
ORDER 2 0
A. The Respondent, Bechtel Power Corporation, Mid-
land, Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Prohibiting its supervisors who are also charging
parties in proceedings before the National Labor Rela-
tions Board from giving evidence to agents of the Na-
tional Labor Relations Board unless company counsel is
present.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under the National Labor Relations Act, as
amended.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its place of business in Midland, Michigan,
copies of the attached notice marked "Appendix A." 2 1
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent Bechtel's representative, shall be posted by Re-
spondent Bechtel immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Bechtel to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent Bechtel has taken to comply here-
with.
B. The Respondent, Reinforced Iron Workers Local
Union No. 426, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist from:
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Threatening employees and union members with
loss of employment or referrals to employment because
they have criticized the performance of the Union's busi-
ness manager or the operation of its hiring hall or op-
posed the reelection of the business manager and other
officers of the Union.
(b) In any other manner restraining and coercing em-
ployees and union members in the exercise of their rights
under the National Labor Relations Act, as amended. 22
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its offices, and all other places where it cus-
tomarily posts notices to its members, copies of the at-
tached notice marked "Appendix B." 2 3 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent Union's
business manager, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Deliver to the Regional Director for Region 7
signed copies of the said notice in sufficient numbers to
be posted by Bechtel Power Corporation, if willing, in
places where notices to employees are customarily
posted.
(c) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent Union has taken to comply here-
with.
C. The complaints, to the extent that they allege viola-
tions not specifically found herein, are dismissed.
22 Respondent's prior violations of the National Labor Relations Act
warrant the imposition of a broad order in this case. See Reinforcing Iron
Workers Local Union No. 426, International Association of Bridge, Struc-
tural and Ornamental Iron Workers. AFL-CIO (Tryco Steel Corporation),
192 NLRB 97 (1971), and other cases cited therein.
2S See fn. 21, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our supervisors who are
also charging parties in proceedings before the Na-
tional Labor Relations Board from speaking to
agents of the National Labor Relations Board or
from giving testimony in support of their charges
without a company attorney being present.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act, as
amended.
BECHTEL POWER CORPORATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten members and employees
with the loss of employment or job referrals be-
cause they have criticized the performance of our
business manager or the operation of our hiring hall
or opposed the reelection to office of our business
manager and other officers.
WE WILL NOT in any other manner restrain or
coerce members and employees in the exercise of
the rights guaranteed them in Section 7 of the Na-
tional Labor Relations Act, as amended.
REINFORCED IRON WORKERS LOCAL
UNION No. 426, INTERNATIONAL AssocI-
ATION OF BRIDGE, STRUCTURAL AND OR-
NAMENTAL IRON WORKERS, AFL-CIO