Hawaiian Dredging Construction Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 4, 2013

37-CA-008316 (N.L.R.B. Feb. 4, 2013)

JD(SF)–07–13
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
HAWAIIAN DREDGING
CONSTRUCTION COMPANY, INC.
and Case 37–CA–008316
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS,
LOCAL 627
Meredith A. Burns and Trent K. Kakuda,.
for the Acting General Counsel.
Barry W. Marr and Megumi Sakae,.
(Marr, Jones & Wang) for the Respondent.
Caren Sencer and David Rosenfeld,.
(Weinberg, Roger & Rosenfeld)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Eleanor Laws, Administrative Law Judge. This case was tried in Honolulu, Hawaii on
November 6–7, 2012. The International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 627 (the Boilermakers or the Union) filed the charge on
May 12, 2011. The Acting General Counsel issued the original complaint on
November 30, 2011, and issued an amended complaint on January 13, 2012. Hawaiian Dredging
Construction Company, Inc., (the Respondent or Hawaiian Dredging) filed a timely answer
denying all material complaint allegations. The Respondent filed a motion for summary
judgment on March 31, 2012, which the National Labor Relations Board (the Board) denied on
February 29, 2012.
The Acting General Counsel issued a compliance specification and order consolidating
the compliance specification with the amended complaint on September 10, 2012. The
Respondent filed a timely answer. At the hearing, I severed the compliance specification from
the amended complaint and took evidence on the unfair labor practices complaint only.
The issue before me is whether Respondent’s layoffs of Paul Aona, Crispin Bantoy,
Domingo Delos Reyes, Jeffery Esmeralda, Joseph Galzote, Manuel Gaoiran, Daniel Marzo, Jr.,
JD(SF)–07–13
2
Henry Merrill, Peter Pagaduan, Joselito Peji, Rolando Tirso, and Kenneth Valdez (the
alleged discriminatees) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act).
On the entire record, including my observation of the demeanor of the witnesses, and 5
after considering the briefs filed by the Acting General Counsel, the Respondent, and the Union,
I make the following
FINDINGS OF FACT
10
I. JURISDICTION
The Respondent, a Hawaii corporation with an office and a place of business in
Honolulu, Hawaii, is a general contractor in the construction industry. During the past twelve
months and at all material times, it derived gross revenues in excess of $500,000 and purchased 15
and received goods valued in excess of $50,000 directly from points outside the state of Hawaii.
The parties admit, and I find, that the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Hawaiian Dredging is the largest general contractor in the state of Hawaii with roughly 25
230 salaried employees and 375 craft labor employees. Its building projects include hotels,
houses, highways and roads, and piers. The Respondent also does renovation and foundation
work both for their own and other contractors’ projects. In addition, the Respondent is the state’s
principal power and industrial contractor, and its employees perform industrial work at sewage
and wastewater treatment plants. The Respondent’s industrial operations consist of five 30
divisions: heavy, waterfront, power and industrial, and two building-oriented groups. For more
than 20 years, Hawaiian Dredging has performed all craft work pursuant to collective bargaining
agreements (CBAs). (Tr. 90-91, 106, 253, 256).1
William Wilson is the Respondent’s longtime President. Tom Valentine manages the 35
Respondent’s power and industrial (P&I) division. The work he oversees is industrial
mechanical construction and generally involves welding. Prior to January 2012, Valentine was a
senior project manager. In that capacity, he oversaw power-related projects. The Hawaiian
Electric Company (HECO) has been, at all relevant times, the Respondent’s primary client in this
area. Gordon Caughman, general foreman over the Pipefitters since March 2011, oversees the 40
labor and mechanical work for the P&I division. He reports to the P&I division managers.
Caughman was previously the Boilermakers’ general foreman.

1 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s
exhibit; and “GC Exh.” for Acting General Counsel’s exhibit. Although I have included several citations
to the record to highlight particular testimony or exhibits, I emphasize that my findings and conclusions
are based not solely on the evidence specifically cited but rather are based on my review and
consideration of the entire record.
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3
B. The Collective Bargaining Relationship
The Association of Boilermaker Employers of Hawaii (the Association) represents
employer-members in negotiating and administering CBAs. From at least October 1, 2005 to 5
February 17, 2011, the Respondent was a member of the Association.2 For roughly eight years
up until February 2011, Valentine was chairman of the Association.
For at least 20 years, up until February 17, 2011, the Boilermakers and the Association
were parties to a collective bargaining relationship under Section 8(f) of the Act. Boilermakers 10
worked in Hawaiian Dredging’s P&I division. In addition to welding, they did rigging,
equipment setting, PVC work, and piping. Some employees worked on the same project through
its completion, while other employees were transferred among jobs.
The most recent CBA between the Association and the Boilermakers ran from 15
October 1, 2005, through September 30, 2010. (GC Exh. 2). Upon expiration of the contract,
having not reached a new agreement, the parties agreed to extend its terms through October 29,
2010, with any new agreement retroactive to September 30. (GC Exh. 3).
On Friday October 1, 2010, the Respondent’s attorney sent, via email, a letter to 20
Boilermakers’ business agent Allen Meyers informing him that because the CBA fell under
Section 8(f), either party was free to cease bargaining or take economic action. He further noted
that because the requisite 60-day notice had been given, the members of the Local 627 could
cease working without further notice or bargaining. Boilermakers’ business representative Gary
Aycock forwarded the letter to Valentine. (R. Exh. 3). That same day, the Boilermakers arrived 25
for work at the Sand Island wastewater facility and notified superintendent Manny Fernandez
that they did not intend to work because their contract had expired. (Tr. 96; R. Exh. 4). By
Monday, October 4 the Boilermakers had resumed work. (Tr. 112).
Contract negotiations continued into November with the parties disagreeing about 30
inclusion of maintenance of benefits provision and an increase in the mobilization optimization
stabilization and training (MOST) benefit. (R. Exhs. 6, 7). On November 12, Valentine
forwarded to Meyers four copies of a CBA he believed the Boilermakers had ratified. (R. Exh.
7). On November 17, Meyers sent a letter to Valentine that, in addition to pointing out minor
corrections, instructed the Respondent to add a $.50 per year maintenance of benefits provision 35
and include an increase in the MOST contribution. Meyers requested a response no later than
November 30, but this was extended to December 6. (R. Exh. 8; Tr. 262).
C. The Kahe 4 Project, Continued Negotiations, and Board Charges
40
In December, Hawaiian Dredging contracted with HECO to provide about 20
Boilermaker welders for a power plant outage at HECO's Kahe 4 power plant (the Kahe 4
project). On December 3, Hawaiian Dredging submitted a request to the Boilermakers to
dispatch a welder to the Kahe 4 plant on December 6. (R. Exh. 10; Tr. 164, 203).
Superintendent Forrest Ramey notified management that the Boilermakers had not dispatched a 45
worker on December 6. Caughman contacted Aycock to inquire, and Aycock stated that Meyers

2 The other members were Arakaki Mechinical and Elayer Enterprises.
JD(SF)–07–13
4
was handling dispatches from Arizona. According to Caughman, when he and Meyers spoke,
Meyers asked “words to the effect of” whether the Union had gotten management’s attention.
Caughman also called Manuel “Kalani” Gaoiran, the worker who was supposed to report to the
Kahe 4 project on December 6. By Caughman’s account, Gaoiran responded that he was told not
to report and did not want to get stuck in the middle. (Tr. 166). Valentine had to notify HECO 5
about the dispatch problems, which caused him concern because HECO is his major customer.
(R. Exh. 9, 10).
Later that same day, December 6, Aycock sent Valentine an email inquiring as to whether
he intended to respond to the November 12 letter Meyers had sent him about the contract. 10
Valentine responded, copying Meyers and others. He stated that Meyers’ letter did not
accurately reflect the agreement from the most recent negotiations. He further wrote, "I do not
understand the reason for this failure to honor the dispatch. We have a disputed contract and our
position has always been that upon resolution the contract would be retroactive to October 1,
2010." He concluded by informing Aycock and Meyers that the Association had been advised to 15
file an unfair labor practices complaint and would be doing so that day. (R. Exh. 11).
The Association filed charges with the NLRB on December 6, alleging that the Union
violated Section 8(b)(3) of the Act by attempting to add a maintenance of benefits provision and
increase the MOST benefit without first negotiating. (R. Exh. 12). During the investigation of 20
this Charge, Hawaiian Dredging requested mediation of the contract dispute through Federal
Mediation and Conciliation Services (FCMS), but the Boilermakers declined. (GC Exh. 1(k)
Valentine Decl.)
On December 7, the Boilermakers did not dispatch three journeymen requested for the 25
Kahe 4 project. (R. Exh. 13). One worker was dispatched the evening of December 9 without
notice to the Respondent or HECO. Workers continued to show up at the site unannounced.
Valentine sent Aycock an email on December 10, asking him to tell Hawaiian Dredging and
HECO when it was dispatching Boilermakers to the Kahe 4 project. (R. Exh., 14). On December
12, Valentine sent an e-mail to Wilson, then vice-president Dan Guinagh, and the Respondent’s 30
in-house counsel Gary Yokoyama, detailing the problems with staffing for the HECO project,
expressing his concern about the Boilermakers’ failure to dispatch workers as well as the quality
of their work, and opining that Hawaiian Dredging should consider terminating its relationship
with them. (R. Exh. 15). To provide manpower to the Kahe 4 project, the Respondent
transferred its eight Boilermaker welders from other ongoing projects to the Kahe 4 project, 35
forcing the other projects to shut down. (Tr. 263, 273–274). According to a spreadsheet Ramey
prepared, Boilermakers had failed to show for 24 12-hour shifts as of December 16. (R. Exh.
16). HECO ultimately removed some work from Hawaiian Dredging because of its inability to
staff it. (Tr. 212, 273).
40
On December 18, HECO directed the Respondent to terminate four welders because their
welds failed radiographic testing. Valentine directed the Boilermakers to prepare a written
response as to how the Union would correct the problem so that he could present it to HECO.
(R. Exhs. 17–18). He did not receive a response. (Tr. 218).
45
JD(SF)–07–13
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D. Termination of the 8(f) Agreement and Layoffs
Valentine received a letter from the Board on February 17, 2011, regarding the
December 6, 2010 charges.3 The Board dismissed the charges, concluding that the parties did
not reach complete agreement on the terms and conditions of employment. (R. Exh. 21). 5
Relying on the Board’s dismissal, the Association terminated its relationship with the
Boilermakers effective Monday, February 17, 2012, on the basis that there was no CBA in place.
At around noon, Valentine and Ramey met with Caughman to inform him the Boilermaker
employees were being laid off because there was no contract. The Boilermakers received 10
termination notices at the end of the work day. (GC Exhs. 4–19). At the time, the employees did
not receive notice of any plan to rehire them. The Respondent separated the employees was
because there was no contract in place, not due to a lack of work.4
E. Contract with the Pipefitters Union15
On February 18, 2011, Valentine and Guinaugh met with representatives of the Plumbers
and Pipefitters Union, Local 675 (Pipefitters) to discuss the possibility of entering into a contract.
Guinagh asked the Pipefitters’ business manager and secretary/treasurer, Reginald Castanares, if
he would accept Hawaiian Dredging’s former Boilermaker employees as Pipefitters. Castanares 20
stated that membership would be conditioned on following the Pipefitters’ standard practice of
applying, interviewing, and passing a welding test and a drug test.5 The Respondent and the
Pipefitters became parties to a CBA on February 23.6 (R. Exh. 22). In a meeting earlier that day,
Wilson informed Castanares that Hawaiian Dredging wanted the employees who had worked
under the contract with the Boilermakers to continue working and asked if they could be referred 25
through the Pipefitters. Castanares responded with the same answer he had given to Guinaugh.
Shortly after the contract with the Pipefitters was signed, Caughman and Ramey
informed the alleged discriminatees that they could sign up with the Piperfitters if they wanted to
continue working for Hawaiian Dredging. Wilson did not believe the Boilermakers would have 30
trouble passing the Pipefitters’ welding test because the work they had performed over the years
had almost always met the Respondent’s contractual obligations. The Respondent permitted
them to use its warehouse facility to practice their welding skills in preparation for the welding
test. Hawaiian Dredging performed no welding work between February 17 and March 1, 2011,
when the first worker was dispatched under the February 23 contract with the Pipefitters. (Tr. 35
228).
By February 25, 2011, six out of the thirteen alleged discriminates had registered with the
Pipefitters. By May 12, 2011, nine had registered. (R. Exh. 23). The additional four alleged
discriminates did not register. 40

3 The letter is dated February 14 and date-stamped February 15, which was a Saturday.
4 The parties entered into a stipulation on this fact. (Tr. 9–10).
5 The Pipefitters’ CBA contains a "Uniform Conditions" provision (most favored nation clause)
which would be violated by a deviation of its hiring and referral procedures.
6 The CBA between the Pipefitters’ Union and the Respondent was also pursuant to Section 8(f) of
the Act.
JD(SF)–07–13
6
Wilson did not care which union referred the former Boilermaker-employees to work for
Hawaiian Dredging, as long as the work was performed under a contract. (Tr. 109).
III. ANALYSIS
5
The issue before me is whether the Respondent laid off the alleged discriminatees in
violation of Section 8(a)(1) and (3) of the Act.7
Both the Acting General Counsel and the Charging Party argue that the layoffs were
inherently destructive of employee rights, and therefore anti-union motivation may be inferred. 10
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
Before jumping into analysis under Great Dane or any familiar legal paradigm, it is
important to point out the extremely unique factual scenario this case presents. Much of the
caselaw that has developed under Great Dane and its progeny concerns strikes, lockouts, and 15
other actions where the parties have some sort of continuing obligation to each other. This case
occurs in a very different context that derives from the unique nature of the construction
industry. Here, the Association had lawfully terminated its Section 8(f) relationship with the
Union, and the parties therefore had no continuing contractual obligations to each other. The
majority of the caselaw also concerns replacing union workers with non-union workers and/or 20
workers not affiliated with the union that is a party to the case. Here, consistent with its
longstanding practice, the Respondent refused to go “open shop” and would only employee craft
workers who were affiliated with a union and were operating under a CBA, regardless of any
particular union affiliation. Against this unusual factual backdrop, I turn to the legal analysis.
25
Under Great Dane, if the employer’s conduct is “inherently destructive” of important
employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair
labor practice even if the employer introduces evidence that the conduct was based upon
important business considerations. If the adverse effect of the discriminatory conduct on
employee rights is “comparatively slight,” and the employer has come forward with evidence of 30
legitimate and substantial business justifications for its actions, antiunion motivation must be
proved to sustain the charge. Ibid. The burden is upon the employer to establish that it was
motivated by legitimate objectives.
The first question to answer, then, is whether the employer’s conduct was “inherently 35
destructive” of important employee rights. “Inherently destructive” conduct involves actions
“that exhibit hostility to the process of collective bargaining,” and that have “’far reaching
effects which could hinder future bargaining; i.e., conduct that creates visible and continuing
obstacles to the future exercise of employee rights.’” Esmark, Inc. v. NLRB, 887 F.2d 739 (7th
Cir. 1989) (quoting Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976). See 40
also Roosevelt Memorial Medical Center, 348 NLRB 1016 (2006); Bud Antle, Inc., 347 NLRB
87 (2006). In addition, “conduct which discriminates solely upon the basis of participation in
strikes or union activity” may be inherently destructive. Portland Willamette Co, 534 F.2d at
1334.

7 The Association’s termination of its Section 8(f) relationship with the Union is not at issue in this
case. The Association is not named in the Complaint. The Union had contended that termination of the
8(f) relationship violated the Act, but this charge was investigated and dismissed.
JD(SF)–07–13
7
In the instant case, there was no future bargaining to occur between at the time of the
layoffs, as the Association had lawfully terminated the 8(f) agreement with the Boilermakers
Union. As such, the Respondent’s actions did not hinder future bargaining.
5
As to whether the layoffs distinguished among workers based on participation in
protected activity, the evidence shows that all employees who had worked under the terminated
8(f) agreement but no longer were covered by a CBA were laid off, regardless of union or any
other protected activity. The employees who had worked under the contract with the
Boilermakers were afforded the same opportunity to work as any other employee, i.e. under a 10
contract once one was in place. The Respondent had no obligation to treat the employees who
had worked under the former Boilermakers’ contract more favorably than its other craft workers
by permitting them to work without the protections of a CBA. In short, the Respondent laid off
the alleged discriminatees because they were no longer working under a contract, not because
they were members of the Boilermakers or any other union.8 Once a new CBA was in place, the 15
Respondent facilitated returning the employees to work, as detailed above, on a non-
discriminatory basis. Accordingly, the Respondent’s actions here are not “demonstrably so
destructive . . . that the Board need not inquire into employer motivation, as might be the case,
for example, if an employer permanently discharged his unionized staff and replaced them with
employees known to be possessed of a violent antiunion animus.” American Ship Bldg. Co. v. 20
NLRB, 380 U.S. 300, 309 (1965). See also D&S Leasing, 299 NLRB 658, 659 (1990)
(terminating employees and refusing to rehire them to escape bargaining obligations inherently
destructive). Based on the unique facts of this case, I do not find that the Respondent’s conduct
was inherently destructive of employee rights.
25
The Acting General Counsel and the Union assert that the Respondent was required to
continuously employ the alleged discriminatees. This, however, assumes a right to employment
on terms inconsistent with the Respondent’s longstanding practice of having its craft work
performed under CBAs rather than a right to be free from discrimination. Though the transition
was not seamless, the Respondent acted quickly and its managers clearly prioritized the 30
continued employment of the alleged discriminatees without regard to whether they were still
members of the Boilermakers Union.
The Acting General Counsel and the Union further assert that the employees were laid off
simply because they were members of the Boilermakers Union. As noted above, the 35
distinguishing factor was not Boilermaker membership but rather lack of a CBA. Though the
two did go hand in hand under the circumstances present, this does not imply discrimination
given the facts of this case. As the Supreme Court stated in Amer. Ship Bldg. Co., 380 U.S. at
311–313:
40
[W]e have consistently construed the section to leave unscathed a wide range of
employer actions taken to serve legitimate business interests in some significant fashion,
even though the act committed may tend to discourage union membership. See, e.g.,
National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347,
58 S.Ct. 904, 911, 82 L.Ed. 1381.45

8 Management did not know whether the alleged discriminatees remained Boilermakers Union
members. (GC Exh. 1(m), Valentine Declaration).
JD(SF)–07–13
8
. . .
It is true that the employees suffered economic disadvantage because of their union's
insistence on demands unacceptable to the employer, but this is also true of many steps
which an employer may take during a bargaining conflict, and the existence of an 5
arguable possibility that someone may feel himself discouraged in his union membership
or discriminated against by reason of that membership cannot suffice to label them
violations of § 8(a) (3) absent some unlawful intention.
Though there is no bargaining conflict before me in the instant case, the Court’s reasoning 10
regarding the absence of unlawful intention, under the circumstances present, is nonetheless
persuasive.
Assuming, without finding, that the conduct was inherently destructive, the next step is to
consider the degree to which the Respondent's conduct affected important employee rights. For 15
the reasons that follow, I find the adverse effect on employee rights was “comparatively slight.”
No welding work was performed between February 17 and March 1, 2011, when the first
employee under the new contract with the Pipefitters was sent to work. As set forth above, the
employees working under the former contract with the Boilermakers were considered for work
under the new contract without regard to their Boilermaker status, and in fact the Respondent 20
facilitated their re-employment.
The Respondent’s burden at this juncture is to prove it had legitimate and substantial
business justifications for its actions. The Respondent’s asserted justification, simply put, is that
it requires its craft employees to perform work under CBAs.9 More specifically, the Respondent 25
points to the reasons Section 8(f) was enacted. As the Respondent notes, the legislative history
of Section 8(f) shows it was added to the Act because of the construction industry employer's
need to “know his labor costs before making the estimate upon which his bid will be based” and
“to ensure the employers in the construction industry would have a readily available supply of
skilled craft workers for quick referral.” S. REP. No. 86-187 (1959). See also NLRB v. Local 30
103, International Association of Bridge Workers, 434 U.S. 335, 348–349 (1978). Neither the
Acting General Counsel nor the Union has refuted the Respondent’s evidence that, for at least
the past 20 years, it has exclusively relied on the Union hiring halls to provide labor to it under
CBAs governed by Section 8(f). I find that such reliance, given the purpose of Section 8(f) and
the mutual safeguards Section 8(f) agreements provide to both parties, constitutes a legitimate 35
business justification.10
The Acting General Counsel and the Union assert that the Board’s decision in CIMCO,
301 NLRB 342 (1991), enforced 963 F.2d 513 (5th Cir. 1992), controls and requires me to find
the Respondent violated Section 8(a)(1) and (3). There are material distinctions, however, 40

9 Neither the Acting General Counsel nor the Union argued that this case should be decided under the
Board’s familiar analysis in Wright Line, 251 NLRB 1083 (1980). Assuming such analysis governs and
that the Acting General Counsel has met its initial burden, I find that the Respondent’s requirement to
have its craft work performed pursuant to CBAs is a legitimate non-discriminatory reason for its actions,
and the Acting General Counsel has not presented evidence to show this was pretext.
10 The problems the Respondent faced after the CBA with the Boilermakers expired, detailed above,
underscore its rationale for requiring work to be performed under a valid enforceable contract.
JD(SF)–07–13
9
between CIMCO and the instant case. In CIMCO, the union terminated its Section 8(f)
agreement with the company at a particular worksite that employed electricians, and the
company disputed the legitimacy of this action. Thereafter, in response to unsubstantiated
rumors that the union was not going to permit its members to work at the site, the company
terminated them but stated it considered them to have voluntarily quit. The company then placed 5
ads in the paper and, although all the electricians who had been referred by the union applied, it
hired a “core group” of employees who exclusively were not from the union. Thereafter, it hired
some of the electricians who had previously been referred by the union. The Board agreed with
the administrative law judge that this course of conduct was inherently destructive of employee
rights. The key to the judge’s finding was that the employees were terminated because they had 10
been referred by the union, and the company took this action because the union would not agree
to reinstate its participation in the Section 8(f) agreement.
In the instant case, unlike in CIMCO, the Respondent did not advertise for outside
nonunion employees. The company in CIMCO discriminated in its hiring when it initially only 15
considered the electricians who had not previously been referred by the union. By stark contrast,
the Respondent here did not consider or hire any nonunion employees to resume work without a
CBA in place, and did not at any point favor workers who were unaffiliated with the
Boilermakers. The evidence shows that the Respondent facilitated the Boilermakers’ referral
under the new CBA and considered them for hire from the outset on a non-discriminatory basis. 20
Finally, unlike in CIMCO, the Respondent was not attempting to coerce the Boilermakers, as the
Association had already lawfully terminated the 8(f) relationship. Accordingly, I find that the
rationale in CIMCO does not fit the facts of this case.
Assuming a finding that the Respondent’s conduct was inherently destructive, I find that, 25
unlike in CIMCO, the Respondent has met its burden to prove it had legitimate and substantial
business justifications for its actions, as set forth above. The rationale set forth in CIMCO rested
on unwarranted speculation that the electricians the union had referred would not show up for
work if hired as nonunion workers. The rationale here is grounded in the fact that there was no
longer a contract governing the work at issue, and the Respondent’s legitimate business model 30
requires all craft work to be performed under a CBA.11
The Board’s analysis in Jack Welsh Co., 284 NLRB 378 (1987), does not apply, and
merely obfuscates the legal issue presented in the case at hand. In Jack Welsh, upon expiration
of a Section 8(f) agreement between the employer and the union, the company went “open shop”35
and Welsh, the owner, terminated three union-member employees. The Board found this
violated the Act because the employees were not given the option to continue working in the new
nonunion environment. Here, the Respondent never intended to become a nonunion shop.
Rather, the Respondent took steps to get a new contract into place promptly and facilitated the
alleged discrimnatees’ continued employment, as detailed above. There is no evidence to 40
support a finding that the Respondent attempted to subvert unionization or the Act.

11 The Union avers that the Respondent argued other business justifications, including work
disruptions and quality issues. The Respondent, however, has consistently argued that it laid off the
alleged discriminatees because of the Board’s determination that no contract existed. While the
Respondent has asserted that some of the problems that arose after the CBA expired illustrate why it
maintains a practice of only having craft work performed under contracts, the problems themselves were
not alleged as business justifications.
JD(SF)–07–13
10
The Charging Party further asserts that the Respondent’s decision to lay off the alleged
discriminatees because they lacked union representation and a union contract violates the Act to
the same degree it would to take the same action because they were represented. The Complaint
contains no such allegation on its face or by amendment, it was not litigated or defended, and I 5
therefore do not consider it. Likewise, the Acting General Counsel hypothesizes that had the
Respondent terminated the alleged discriminatees at the insistence of the Pipefitters, both
Respondent and the Pipefitters Union would have violated the Act under the Board’s reasoning
in Austin & Wolfe Refrigeration, 202 NLRB 135 (1973). As this was neither asserted in the
Complaint nor litigated, and is argued from a speculative stance only, I do not consider it. 10
The Acting General Counsel notes that the Respondent could have required the alleged
discriminatees to join the Piperfitters pursuant to a valid security clause after the seven-day grace
period Section 8(f) provides. Citing to Acme Tile and Terazzo Co., 306 NLRB 479, 480–481
(1992), reaffirmed after remand by 318 NLRB 425, enfd. 87 F.3d 558 (1st Cir. 1996), the Acting 15
General counsel asserts that this is only permissible when there is continuous employment.
Acme Tile concerned pressure to join the Bricklayers Union immediately, without the requisite
grace period, in the context of the Bricklayers’ ongoing campaign to force the workers to join
their union. There is no evidence the Respondent attempted to subvert any required waiting
period, nor is there evidence that the Respondent was assisting the Pipefitters in some sort of 20
campaign to force the alleged discriminatees to join its union. Finally, the Acting General
Counsel cites to National Fabricators, Inc., 295 NLRB 1095 (1989) (quoting Gatliff Business
Products, 276 NLRB 543, 558 (1985)), for the proposition that laying off employees who are
likely to engage in protected activities “is the kind of coercive discrimination that naturally tends
to discourage unionization and other concerted activity.” This is unpersuasive given that there is 25
no hint that the Respondent was discouraging union activity or any rights protected under the
Act.12
Based on the foregoing, considering the unique factual circumstances present in this case,
I find the Acting General Counsel has failed to prove that the Respondent violated the Act as 30
alleged.
CONCLUSIONS OF LAW
The Respondent’s actions of laying off the alleged discriminatees did not violate Section 35
8(a)(1) and (3) of the Act.
Accordingly, based on the foregoing findings of fact and conclusions of law and the
entire stipulated record, I issue the following recommended.13
40

12 The Acting General Counsel also references Steel Fabricators, Inc., 271 NLRB 524, 532 (1984).
That case, however, involved layoffs following an unlawful refusal to bargain, whereas there was no
further duty to bargain in the instant case.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–07–13
11
ORDER
The complaint is dismissed.5
Date, February 4, 2013.
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Eleanor Laws
Administrative Law Judge