Chicago Bridge & Iron Co.

National Labor Relations Board - Board Decisions

Aug 19, 1958

121 N.L.R.B. 595 (N.L.R.B. 1958)

CHICAGO BRIDGE & IRON COMPANY 595
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following
C©NmusIom or LAw
1 Meenan Oil Co, Inc, is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act,
2 Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of the Act
3 By performing or giving effect to agreements containing clauses delegating
final control over the seniority status of Meenan's employees to Respondent Local,
the Respondent Meenan and Respondent Local have, at all tunes since June 20,
1956, engaged in unfair labor practices within the meaning of Section 8 (a) (1),
(2), and (3), and Section 8 (b) (1) (A) and (2) of the Act
4 At all times since October 15, 1956, by Respondent Meenan's acquiescence in
Respondent Local's unilateral determination of the seniority status of a particular
employee, Walter J Wolny, thereby implementing the unlawful seniority agree-
ment, Respondent Meenan has discriminated and is discriminating against said
Walter J Wolny in violation of Section 8 (a) (1), (2), and (3) of the Act, and
Respondent Local has caused and is causing said discrimination, in violation of
Section 8 (b) (1) (A) and (2) of the Act.
5 The aforesaid unfair labor practices ,are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication ]
Chicago Bridge & Iron Company and Roger Fields. Case No
7-CA-1444 Auqust 19, 1958
DECISION AND ORDER
On January 4, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report, a copy of which is attached hereto Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting
brief The Respondent's request for oral argument before the Board
is hereby denied as the record, exceptions, and brief adequately
present the issues and positions of the parties
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its power in connection with this case to a three-mem-
ber panel [Members Rodgers, Bean, and Fanning]
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed
The rulings are hereby affirmed The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
121 NLRB No 74
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner with the following addition 1 and
modification.
Operating Engineer Fields, the complainant herein, credibly. testi-
fied that on January 6, 1956, he applied for employment to Foreman
Mullen, who was in charge of hiring for the Respondent on the job
site. Mullen replied that he needed an operator on his caterpillar
tractor and also on the side boom. - Fields said that he was an operat-
ing engineer and could operate a side boom, and asked for the job as
a side boom operator. Having been satisfied with Fields' qualifica-
tions for the job, Mullen told Fields that he could have the job if
he cleared through the union hall. The Trial Examiner made no
findings, and the record fails to establish, that there was in existence
any valid hiring-hall agreement between the Respondent and the
Union 2 Under these circumstances, we find that by conditioning
employment of Fields 'upon his obtaining clearance by the Union,
the Respondent violated Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Chicago Bridge & Iron
Company, Chicago, Illinois, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Encouraging membership in Local No. 324, International
Union of Operating Engineers, AFL-CIO, or any other labor or-
ganization of its employees by conditioning employment of qualified
applicants for employment upon referral by the Union or discriminat-
ing in any other manner in respect to their hire or tenure of employ-
ment, or any term or condition of employment.
i The Trial Examiner failed to set forth in his Intermediate Report the facts con-
cerning the nature and extent of the Respondent 's business . These facts which are
detailed in the complaint and admitted in the answer are as follows :
The,Respondent , Chicago Bridge & Iron Company , is engaged in the design , engineering,,,
'fabrication , and erection of steel plate ' structures throughout the United States. It has
offices located in principal cities of the United States and plants in several States. The
Respondent 's total annual purchases during the calendar year of 1955 are valued at
approximately $38,015 ,000 of which 28 percent was shipped directly to its plants and
construction sites from points outside of the States in which such plants and construction
sites are located . The Respondent 's sales during the same calendar year are valued at
about $100 ,634,000 , of which more than $1 ,000,000 consisted of direct sales and ship-
ments of goods and/or materials from its various plants to points outside the States in
which these plants were located, and more than $1,000,000 represented construction work
performed outside the State in which the permanent operating headquarters for such con-
struction work is located . As the Respondent 's operations meet jurisdictional standards
of the Board, we find that it will effectuate the policies of the Act to assert jurisdiction
over the Respondent in this case . The T. H. Rogers Lumber Company, 117 NLRB 1732.
2 For the standards applicable to an exclusive hiring-hall agreement , see Mountain
Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883.
CHICAGO BRIDGE & IRON COMPANY 597
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make Roger Fields whole for any loss of pay he may have suf-
fered by reason of the discrimination against him, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
(b) Post at its offices , places of business, and projects within its
Chicago Erection District, and mail to Fields, copies of the notice at-
tached to the Intermediate Report and marked "Appendix." a Copies
of said notice, to be furnished by the Regional Director for the Sev-
enth Region, shall, after being duly signed by the Company's repre-
sentative, be posted by the Company immediately upon receipt thereof,
and be maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Com-
pany to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
8 This notice Is amended by substituting for the words , "The Recommendations of a
Trial• Examiner" the words "A Decision and Order ." In the event that this order is en-
forced by a decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United. States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that the Company has violated Section 8 (a) (3)
and (1 ) of the National Labor Relations Act, as amended , 61 Stat . 136, by refusing,
on or about January 6, 1956, to employ Fields at its project in Grand Blanc,
Michigan , because he had not been referred to the job or cleared by Local No. 324,
International Union of Operating Engineers , AFL-CIO; concededly the Company
has no agreement with the Union or its International covering employment at that
project . Denying knowledge of Fields, the answer further denies refusal to employ
any applicant for the reason alleged in the complaint.
A hearing was held before me at Flint , Michigan , on December 4, 1956. Pursuant
to leave granted to all parties , briefs were thereafter filed by the General Counsel
and the Company , the time to do so having been extended.
Upon the entire record in the case, and from my observation of the parties, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
Details of the nature and extent of the business of the Company, an Illinois
corporation with principal offices in Chicago, Illinois, and other offices including one
in Detroit, Michigan, are set forth in the complaint and admitted in the answer.
It was further admitted and I find that the Company is engaged in commerce within
the meaning of the Act.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was stipulated and I find that the Union is a labor organization within the
meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
Fields and Deming, another operating engineer , testified that on the morning of
January 6, 1956, both wearing buttons which indicated that they were current mem-
bers of the Union, they appeared at the Company's tank erection project in Grand
Blanc, looked around , saw a side boom caterpillar tractor and other equipment not
then being operated, and inquired for the Company's boss on the job. Foreman
Mullen was pointed out, they approached him, and Fields told him that he was an
operating engineer and was looking for a job. Mullen allegedly replied that the
side boom job was open and, when Fields said that he could run that tractor, told
him that he could have the job if he cleared through the union hall. That condition
was not met: Fields sought but did not receive clearance. Another man, Arrandale,
was hired on January 9, on referral from the Union.
Contrariwise, Mullen, whose supervisory status is admitted, testified that he did
not "believe," and then quite positively, that he had never seen either Fields or
Deming before the hearing. To show further that he not only did not but would
not require union clearance as a condition to employment , he declared that when
he needs men he hires "most anybody" who seems qualified ; he accepts either direct
applications or referrals from a union , the latter on a "non-exclusive arrangement."
We thus have a clearcut issue of credibility: whether Fields asked Mullen for a
job and, if so, whether Mullen conditioned employment on clearance of Fields by
the Union. Some light may be found in Mullen's testimony that during his absence
on January 3, as Thomson, a pusher, reported to him that afternoon or the 'next
day, the Union's business agent had left word that, when the crew got ready to use
the caterpillar tractor, they would need two operators: they should call him and he
would send the men. (Mullen had earlier in his testimony denied a statement which
referred to this and which appeared in a document in affidavit form which he exe-
cuted in August. In that document he also declared that the January 3 message
was given to him by Treadway , his assistant foreman , and that he told Treadway to
get in touch with the business agent.) Now that he had "thought it over," Mullen
recalled that on January 6 he told Valentine, another employee, who was apparently
acting as steward on the job, to get in touch with the business agent for an operator.
Brief as the record is, there are several aspects of the testimony which can be
discarded as not probative of the issue before us. Mullen testified that he had
brought all of the early crew of seven men on this job from a previous company
job in Saginaw, Michigan. But that fact is not probative or suggestive of anything
here in issue when we consider that Arrandale, who was hired for the job which
Fields had sought, had not worked on the Saginaw job, and that Mullen did not
know Arrandale before the latter started to work on this job on January 9.
Again, whatever conclusion might be drawn from Mullen's testimony concerning
his practice in hiring men as shedding light on the issue of insistence on a referral
for Fields, sometime between January 3 or 4 and January 6 he decided to accede
to the Union's request or demand that he call on it for operating engineers. Here
then was a definite departure from his stated practice, and Arrandale was thus
employed on January 9. If Mullen's testimony concerning a dual practice was mate-
rial to show that he would not exclude applicants who had not been referred by
the Union, his subsequent testimony in the present connection bars such a finding.
We are still left with the question of credibility concerning the alleged application
by Fields and refusal by Mullen.
Again, attention has been called in the course of argument to the fact that the job
in question was in fact open when Fields allegedly asked for it on the morning of
January 6. But while the unavailability of a job, at that time or prospectively, and
refusal to hire for that reason, would defeat the General Counsel's claim, the con-
verse proves nothing. Granted that the job was open, we must still determine
whether Fields asked for it and was refused as alleged.
While his qualifications were referred to on cross-examination, this was permitted
on the question of his veracity. It was apparently recognized that Fields' qualifica-
tions were not here in issue. They had not been weighed by the Company; they
were certainly not the basis for any refusal to employ him; and his qualifications or
lack of them could not be a defense to such refusal if the refusal be found.
But there are several elements in the testimony which point to resolution of this
"yes-no" problem . We must not forget that , as he sought to recall details of
CHICAGO BRIDGE & IRON COMPANY 599
Mullen's attire on January 6 , Fields, uncertain as he appeared to be, erred in his
reference to a welder's helmet or hood, which Mullen removed as he spoke with
Fields. From the testimony of both Mullen and Deming, it appears that Mullen
wore a metal helmet with a small brim , not a welding hood . Of slight significance
is the discrepancy in time as Fields testified that, after his discharge from the Army,
in October 1951, and 3 to 5 months on one job and 5 or 6 on others, he became a
journeyman operating engineer in the spring of 1952. He later said that it was in
the spring of 1952 or 1953. Fields' testimony was otherwise straightforward and
apparently reliable. Except for the helmet reference, his account of the events on
January 6 was corroborated by Deming. Both Fields and Deming, especially the
latter, impressed me as credible witnesses . Mullen , on the other hand, several times
contradicted or corrected himself. We have already noted his testimony concerning
the report of the union business agent 's visit and his own decision and direction to
communicate with the Union . In contrast to his erroneous statements is his alleged
recollection of, five applicants on this job, whose experience, appearance, and con-
versation appeared to be quite clear in his memory. Application for unspecified
jobs by two 'other men sometime in January (Deming did not himself ask Mullen
for a job) does' not rule out Fields" application or his appearance with Deming.
Perhaps Mullen's preoccupation as he was kept busy on the job and the "unusual
number" of applicants on this job, as he put it, caused him to forget Fields' appli-
cation and his own reply. But whatever the explanation, determining the issue of
credibility, I find that Fields did on January 6 apply to Mullen for work as an op-
erating engineer and that the latter conditioned employment only on clearance of
Fields by the Union, in violation of Section 8 (a) (3) and (1) of the Act. '
Counsel's argument to the contrary notwithstanding, the law is well settled that
the discrimination found is a continuing one until remedied; I that its relation to and
burden on commerce are substantial; and that evidence of extent of wage loss must
properly await steps taken for compliance.
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the-Company set forth in section IT, above, occurring in connection
with the operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company violated Section 8 (a) (3) and (1) of the Act
by refusing to employ Fields at its tank erection project in Grand Blanc, Michigan,
because he had not been cleared by the Union. I shall therefore recommend that
the Company cease and desist from such violation and from infringing in any other
manner upon the rights guaranteed in Section 7 of the Act.
Since the job for which Fields applied has been terminated, I shall make no
recommendation of employment thereon; but I shall recommend that the Company
make him whole for any loss of pay he may have suffered by reason of the dis-
criminatory action aforementioned by payment to him of a sum of money equal
to that which he would normally have earned less his net earnings,2 which sum
shall be computed 3 on a quarterly basis from January 6, 1956, until the date of
completion of the operating engineer's job for which he applied. I shall further
recommend that the Board order the Company to make available to the Board upon
request payroll and other records to facilitate the checking of the amount of back
pay due .4
1The Lummus Company, 101 NLRB 1628, enfd 210 F. 2d 377 (C. A 5). This case Is
also authority on any argument which may be addressed to Fields' failure to see Mullen
again; see pages 1631-1632. See also United Brotherhood of Carpenters, etc, Local #517
(Gil Wyner Construction Company ), 112 NLRB 714
2 Crossett Lumber Company, 8 NLRB 440 See also Republic Steel Corporation v.
N. L.R B, 311 U.S 7.
2 F. W Woolworth Company, 90 NLRB 289 , 291-294.
* Id.. at 294.
600. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the Company's erection activities are divided into districts, the recommenda-
tions herein will be addressed to the Company in its operations in the Chicago
Erection District. Similarly, the violation herein having occurred in the absence
of a collective-bargaining agreement, the Company's obligation to post notices shall
be limited to its offices, places of business, and projects within its Chicago Erection
District.5
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local No. 324, International Union of Operating Engineers, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of Roger R. Fields, thereby
encouraging membership in the Union, the Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, thereby interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, the Company
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
5 The Lummu8 Company, supra
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT encourage membership in Local No. 324, International Union
of Operating Engineers, AFL-CIO, or in any other labor organization of our
employees by conditioning the employment of qualified applicants for employ-
ment upon referral by the Union, or discriminating in any other manner in
respect to their hire or tenure of employment, or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Local No. 324, International Union of Operating Engi-
neers, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL make Robert R. Fields whole for any loss of pay suffered as a
result of our discrimination against him.
All of our employees are free to become, remain, or to refrain from becoming or
remaining, members in good standing in Local No. 324, International Union of
Operating Engineers, AFL-CIO, or any other labor organization except to the extent
that this right may be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
CHICAGO BRIDGE & IRON COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.