M. W. Kellogg Constructors, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1049 (N.L.R.B. 1984)

M. W. KELLOGG CONSTRUCTORS 1049
M. W. Kellogg Constructors, Inc. and Gilbert L.
Smith
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 250, AFL-
CIO and Gilbert L. Smith. Cases 21-CA-21330
and 21-CB-8117
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 15 February 1984 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
Respondent Employer and Respondent Union each
filed exceptions and supporting briefs.' The Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent Union filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified.
1. We agree with the judge, for the reasons
stated at length in his decision, that Respondent
Employer violated Section 8(a)(3) and (1) of the
Act by refusing to assign unscheduled overtime to
nonmembers of Respondent Union (travelers) em-
ployed on its Shell Oil Project in Carson, Califor-
nia, from 1 March through 31 May 1982, and by
laying off 87 travelers named in Appendices A and
B of the judge's decision because of their nonmem-
bership in Respondent Union, and committed nu-
merous independent violations of Section 8(a)(1).3
' Respondent Employer has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 Respondent Employer has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 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 the findings.
In sec. I,A,2,(a),(6), par. 1 of his decision the judge inadvertently sub-
stituted the word "light" for "like." As corrected, the sentence reads: "It
is established that the essence of discrimination in a Section 8(a)(3) viola-
tion consists of treating like cases differently."
3 The judge found that Respondent Employer violated Sec. 8(a)(1) of
the Act by informing employees that travelers could not be assigned
overtime work and would be laid off from work before the shutdown
phase of the project because of their nonmembership in Respondent
Union; by informing a traveler that if he transferred his membership into
Respondent Union he would be eligible to work the project's shutdown
phase; by telling a traveler that he was laid off because Respondent
Union had given instructions that all the travelers were to be laid off; by
telling a traveler that he and another traveler could not work overtime
because of instructions from Respondent Union; and by telling travelers
We disagree, however, with the judge that Re-
spondent Employer did not violate Section 8(a)(3)
and (1) of the Act by laying off the remaining 42
travelers named in Appendix C of the judge's deci-
sion.
Applying the Wright Line analysis, the judge
properly found that the General Counsel made a
prima facie showing that nonmembership in Re-
spondent Union was a motivating factor in Re-
spondent Employer's decision to deny unscheduled
overtime to travelers and to lay off each of the al-
leged discriminatees. In so deciding, the judge
found the "grossly disproportionate" number of
travelers selected for layoff and the number of Re-
spondent Union's members assigned unscheduled
overtime work to be persuasive evidence of dis-
criminatory motivation. The judge also found that
Respondent Employer's foremen's statements that
the travelers could not be assigned overtime work
and would be laid off before the project's shut-
down phase because they were not members of Re-
spondent Union constituted an "outright confession
of unlawful discrimination," as did their testimony
that such was the Employer's practice. The judge
found further evidence of illegal motivation in the
foremen's statements that their discrimination
against the travelers was due to pressure from Re-
spondent Union, and in Respondent Employer's de-
viations from its usual policy of having the crew
foremen select the persons for layoff and overtime
work. The judge also found that the disparate
treatment of traveler Foster compared with the
treatment of other travelers, retaining him to work
the shutdown because Respondent Employer mis-
takenly thought he was a member of Respondent
Union, further demonstrates discriminatory motiva-
tion.
The judge also found Respondent Employer
failed to establish that the 87 travelers would have
been laid off, or travelers denied unscheduled over-
time, for legitimate business reasons notwithstand-
ing their nonmembership status with Respondent
Union. Of the 87 travelers 75 were pipefitters by
trade, and the judge found there was insufficient
evidence that as a group they were less competent
or experienced than Respondent Union's members.
Of the 87 travelers 12 were plumbers by trade, but
the judge found they were competent and experi-
enced pipefitters or their supervisors regarded them
as such, and Respondent Employer produced insuf-
ficient credible evidence to prove that the 12
that it was Respondent Union's policy that Respondent Employer could
not assign the travelers any overtime work.
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
273 NLRB No. 134
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plumber-travelers would have otherwise been se-
lected for layoff. The judge found Respondent Em-
ployer presented no evidence that its refusal to
assign unscheduled overtime to the travelers was
motivated by their being either less competent or
less experienced than members of Respondent
Union the foremen selected to perform the over-
time. The judge emphasized that Respondent Em-
ployer failed to call any of its foremen or general
foremen who made the overtime and layoff selec-
tions to explain their motivation for selecting the
travelers for layoff and failing to assign them un-
scheduled overtime work.5
The judge found, however, that the 42 travelers
in Appendix C of his decision would have been se-
lected for layoff irrespective of their nonmember-
ship in Respondent Union because they were not
qualified pipefitters. The judge found:
[The 42 travelers] are all plumbers by trade,
who . . . were presumably less qualified to
perform the pipefitting work required of them,
than those pipefitters employed on the project
who were pipefitters by trade. There is no evi-
dence that any one of the 42 was an experi-
enced pipefitter or that supervision regarded
any one of them as just as competent as those
pipefitters employed on the project who were
pipefitters by trade.
In reaching this conclusion, the judge considered
that the foremen failed to testify as to their motiva-
tion in selecting the travelers for layoff. The judge
found, nevertheless, that circumstantial evidence
warranted the inference that these travelers would
have been selected for layoff in the normal course
of business.
The General Counsel contends that the judge
improperly relied on his erroneous findings that
there was no evidence that supervision was satis-
fied with the 42 travelers' work, that as a class the
plumbers were presumably less qualified to perform
pipefitting work, and that there is no evidence that
any of the 42 travelers was an experienced pipefit-
ter. The General Counsel argues that the record re-
veals that many of these plumber-travelers had
5 Respondent Employer and the General Counsel presented evidence
of a longstanding industry practice to give preference in overtime and
layoff decisions to local members over nonmember travelers The judge
found that Respondent Employer failed to establish the existence of such
an industry practice The judge further found that even if such a practice
existed, there was insufficient evidence to show that it was based on le-
gitimate business rather than simply union membership considerations
Respondent Employer and Respondent Union admitted, and we find,
for reasons described below, that such a practice existed, but we agree
with the judge that the practice is based on unlawful union membership
considerations, rather than legitimate business reasons, and does not pro-
vide justification for granting preference to Local Union members over
traveler nonmembers for purposes of unscheduled overtime and layoff se-
lection
been working as pipefitters on the Shell Oil Project
for months without having been terminated for
cause. 6 The General Counsel claims that this raises
an inference that Respondent Employer was satis-
fied with their work. Furthermore, the General
Counsel points out that Respondent Employer
failed to present testimony from these travelers'
foremen as to why they selected them for layoff,
or that the plumber-travelers would have been laid
off in any event despite their nonmember status.7
We find merit in the General Counsel's analysis
that the judge, by relying on his presumption that
these travelers were less qualified pipefitters and
therefore would have been laid off regardless of
their nonmembership in Respondent Union, im-
properly substituted his own standards for those
the foremen actually relied on in making the layoff
selections and shifted to the General Counsel the
burden of proof a respondent must meet under
Wright Line. The judge erroneously distinguished
between the group of 42 plumber-travelers (listed
in Appendix C of the judge's decision) and the 12
plumber-travelers (listed in Appendix B), whose
layoffs the judge found to violate Section 8(a)(3)
and (1), merely because the General Counsel pre-
sented evidence of supervisory satisfaction with the
12 plumber-travelers' work, but not concerning the
42. Furthermore, the judge erred in distinguishing
between plumber-travelers and pipefitter-travelers
in determining that Respondent Employer estab-
lished a nondiscriminatory, legitimate business
reason for laying off the 42 plumber-travelers
before Local members. In making their layoff se-
lections, Respondent Employer's foremen made no
distinction between plumber-travelers and pipefit-
ters-travelers. Accordingly, we conclude that Re-
spondent Employer violated Section 8(a)(3) and (1)
of the Act by laying off the 42 plumber-travelers
listed in Appendix C of the judge's decision.5
6 Respondent Employer had a practice of terminating pipefitters for
cause such as poor production during the course of the project
7 There was, however, evidence that some foremen laid off travelers
even though they considered them competent pipefitters
8 We specifically reject, as did the judge, Respondent Employer's
8(0(4) defense because, in granting preference to members of Respondent
Union over travelers in layoff and unscheduled overtime decisions, it did
not rely on the permissible criteria of length of service with the Employ-
er, in the industry, or in the particular geographical area
Respondent Employer contends that the Union's priority book dispatch
system insulates it from liability The four book system grants priority in
dispatch in the following order (1) journeymen pipefitters with 3000
hours of employment in the Local 250 area, (2) journeymen pipefitters
with 3000 hours in the area covered by the Local agreement, (3) journey-
men pipefitters with 3000 hours in California, and (4) journeymen pipefit-
ters with less than 3000 hours regardless of their place of employment
When, however, Respondent Employer's foremen made layoff and un-
scheduled overtime decisions, they did so based only on each employee's
status as a local member or traveler, not on their book dispatch pnonty
That most Local Union members may have been in book I and most
travelers in book IV does not make the Employer's dependence on mem-
bership status in decision-making valid under Sec 8(t)(4)
M. W. KELLOGG CONSTRUCTORS 1051
2. The judge also found, and we agree, that Re-
spondent Union violated Section 8(b)(1)(A) of the
Act by threatening an employee with loss of em-
ployment if he contested Respondent Employer's
unlawful policy of laying off travelers because of
nonmembership in Respondent Union and by refus-
ing to permit certain travelers to examine its hiring
hall's dispatch books. Contrary to the judge, how-
ever, we also find that Respondent Union violated
Section 8(b)(2) and (1)(A) of the Act by causing or
attempting to cause Respondent Employer to dis-
criminate against travelers with regard to unsched-
uled overtime and layoff selection because of non-
membership in Respondent Union, and Section
8(b)(1)(A) through certain statements about the dis-
criminatory treatment of travelers.
The judge concluded the General Counsel failed
to prove Respondent Union caused or attempted to
cause Respondent Employer to discriminate against
the travelers in violation of Section 8(a)(3) of the
Act. The judge found no direct evidence of causa-
tion, and no direct or circumstantial evidence of
either a written or oral understanding between the
Respondents that Respondent Employer would dis-
criminate against the travelers in favor of Respond-
ent Union's members. He also found the Respond-
ents' contention that a discriminatory longstanding
practice in the pipefitting industry exists does not
amount to an admission by the Respondents of an
understanding between the Respondents to grant
preferential treatment to Respondent Union's mem-
bers. The judge rejected the Respondents' conten-
tion that such a longstanding industry practice
exists. The judge found that "the understanding
relied upon by the Respondents in their post-hear-
ing briefs is not the type of understanding which
exists by virtue of an overt or affirmative act en-
gaged in by the Respondent Union," and thus did
not constitute union causation under Section 8(b)(2)
of the Act.
The General Counsel contends that all the sur-
rounding circumstances support a reasonable infer-
ence that a union-employer understanding exists to
discriminate against travelers in layoff and over-
time selection. We agree.
To establish a violation of Section 8(b)(2) of the
Act, direct evidence that the Union expressly de-
manded the discrimination is not necessary. 9 A
union can be found to have caused employer dis-
crimination if there is sufficient evidence to support
a reasonable inference of a union request or a
union-employer understanding.1°
9 International Packings Corp., 221 NLRB 479, 484 (1975), enfd. 542
F.2d 1163 (1st Cir. 1976).
10 Walter .1. Barnes Electrical Co., 188 NLRB 183, 185-186 (1971); Car-
penters Local 742 (Simmons Co), 157 NLRB 451 (1966), enfd. 377 F.2d
Respondent Employer and Respondent Union
both admitted the existence of a discriminatory
practice to which they were parties. Respondent
Union's business manager Richard Slawson and its
steward at the Shell Oil Project Richard Wareham
testified that the practice of granting preference to
local members over travelers for overtime and
layoff purposes has been followed within Respond-
ent Local's jurisdiction, as well as within that of
other locals. Wareham also testified that if the trav-
elers had not been laid off first, he would have
considered it a violation of the members' rights and
that he would have had to "try to help the mem-
bers out." Foremen on the project informed their
crewmembers that the travelers would not work
overtime and were being laid off because of Re-
spondent Union's policy.1'
Union Steward Wareham was responsible for
"checking in" the new hires on the project and ex-
plaining project work rules to them. During check-
in, Wareham informed the employees that they
would not be assigned unscheduled overtime be-
cause Respondent Union's members would do this
work. Wareham also told traveler Cangi that he
had been assigned overtime because the foreman
mistakenly thought Cangi was a member of Re-
spondent Union. When traveler Gilbert Smith com-
plained to Steward Wareham about the layoffs,
noting that new Local members were being hired
at the same time travelers were being laid off, War-
eham replied, "[T]hat's the way it is." When Smith
said he did not think it was fair and intended to
fight it, Wareham said if Smith fought it he would
never work in the area again.
In addition, Respondent Union's agents refused
to allow at least three travelers to view the dis-
patch books to determine their placement and
verify that Respondent Union properly followed
the dispatch system. Traveler Hector Martel testi-
fied that after his layoff he spoke to Union Business
Manager Slawson concerning changing his book
status to book I. Slawson stated that he wanted to
keep the work for the Local hands. According to
Martel, Slawson said, "[If you want to press the
issue, you can, but I'll never dispatch—but you'll
never get dispatched out of this office." Traveler
Gerald Mayes testified that when he gave Slawson
929 (D.C. Cir. 1967); R-M Framers, Inc., 207 NLRB 36, 43-44 (1973);
Hotel. Motel & Club Employees Local 568 (Warwick Hotel), 141 NLRB
310, 312 (1963), enfd. 334 F.2d 723 (3d Or. 1964).
11 For example, Foreman Al Thuotte informed the travelers on his
crew that "it was the policy of Local 250 that he just could not give
[them] any overtime." Foreman Bill Springer told traveler Mayes that he
was unable to remove Mayes' name from the layoff list because "word
come down from 250 that all the Travelers will go" and that the instruc-
tions that the travelers would not work the overtime had come from
Local 250. (The judge inadvertently attributed the latter statement to
Foreman Wayne Springer, Bill Springer's son.)
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
verification of his 3000 hours to change to book I
status, Slawson stated, "[Y]ou're still not going to
work out of here."
We find these circumstances clearly demonstrate
the existence of a union-employer understanding
that Local members would receive preference over
travelers for layoff and unscheduled overtime pur-
poses. Indeed, as noted, Respondent Union and Re-
spondent Employer have admitted its existence.
The additional evidence in the form of statements
by Respondent Union representatives and Respond-
ent Employer foremen, recited above, is over-
whelming confirmation of the parties' understand-
ing. We therefore find that Respondent Union vio-
lated Section 8(b)(2) and (1)(A) of the Act by caus-
ing or attempting to cause Respondent Employer
to discriminate against travelers in regard to selec-
tion for layoff and unscheduled overtime, and find
it jointly and severally liable with Respondent Em-
ployer for any loss of earnings and benefits the
travelers suffered as a result of the discrimination
against them.' 2
We disagree with the judge that Union Steward
Wareham did not violate Section 8(b)(1)(A) of the
Act by, as previously recounted, telling employees
"checking in" at the jobsite that they would not be
assigned unscheduled overtime because Respondent
Union's members would do this work, and inform-
ing traveler Cangi that he had been assigned over-
time because the foreman mistakenly thought
Cangi was a member of Respondent Union. The
judge found these statements did not violate Sec-
tion 8(b)(1)(A) of the Act because Respondent
Union did not cause, nor was it responsible for, the
Employer's illegal discrimination. Furthermore, ac-
cording to the judge, the circumstances under
which Wareham made the statements do not lead
to the conclusion that "Wareham by his conduct
placed himself in a situation reasonably calculated
to lead the employees to believe that the Respond-
ent Union was a party to the Respondent Employ-
er's illegal discrimination." The judge found that
Wareham was merely acting as a conduit for Re-
spondent Employer in explaining company rules to
employees, and "the circumstances do not warrant
the inference that Wareham's explanation of the
12 In Simmons Ca, above, respondent union violated Sec 8(b)(2) and
(I)(A) by causing the employer to discharge an employee In that case,
the union business agent refused to renew the employee's work permit
The union steward told the employee that he could not let him work,
and the company's foreman said, "That's right, you need a work permit"
The foreman took the employee to the superintendent who terminated
the employee The foreman testified It was "understood" that a work
permit was required for employment and stated that "things don't have
to be spoken in words" The Judge found no agreement or understanding
requiring a work permit as a condition of employment The Board re-
versed, finding that such an understanding existed, and that the employee
had been terminated pursuant to the understanding
various company rules was calculated to lead the
employees to reasonably believe that the Union
was responsible for these rules."
The General Counsel contends that the judge's
reasoning that Wareham was merely acting as Re-
spondent Employer's conduit is without merit. The
General Counsel points out that the "work rules"
Wareham explained included the terms and condi-
tions embodied in the labor contract. We agree.
The union steward was responsible for enforcing
the collective-bargaining agreement on the job, and
for seeing that those employed on the site had the
proper referral slip. Furthermore, Wareham's state-
ment to Cangi was made when Cangi complained
to Wareham as steward about his treatment on the
job. Thus, Wareham was Respondent Union's rep-
resentative at the site. See Iron Workers Local 600
(Bay City Erection), 134 NLRB 301, 306-307
(1961), modified on other grounds 144 NLRB 1049
(1963). We find that Wareham's statements tended
to restrain or coerce employees in their Section 7
rights, and therefore violated Section 8(b)(1)(A) of
the Act.
In light of our finding of additional violations,
we shall issue amended Conclusions of Law, an
amended remedy, and a new Order and notices to
employees and members.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
"3. Respondent Employer violated Section
8(a)(3) and (1) of the Act by refusing to assign un-
scheduled overtime work to nonmembers of Re-
spondent Union (travelers) employed on the Shell
Oil Project in Carson, California, from 1 March
through 31 May 1982, and by laying off the 129
travelers listed in Appendices A, B, and C of the
judge's decision because they were not members of
Respondent Union."
2. Substitute the following for Conclusion of
Law 5.
"5. Respondent Union violated Section 8(b)(2)
and (1)(A) of the Act by causing or attempting to
cause Respondent Employer to violate Section
8(a)(3) and (1) of the Act by refusing to assign un-
scheduled overtime work to nonmembers of Re-
spondent Union (travelers) employed on the Shell
Oil Project in Carson, California, from 1 March
through 31 May 1982, and by laying off the 129
travelers listed in Appendices A, B, and C of the
judge's decision because they were not members of
Respondent Union."
3. Add the following as Conclusion of Law 6.
"6. Respondent Union violated Section
8(b)(1)(A) of the Act by threatening an employee
M. W. KELLOGG CONSTRUCTORS 1053
with loss of employment if he contested Respond-
ent Employer's unlawful policy of laying off trav-
elers because of their nonmembership in Respond-
ent Union, by telling employees checking in at the
'jobsite that they would not be assigned unsched-
uled overtime because Respondent Union's mem-
bers would do such work, and by telling an em-
'ployee that he had been assigned overtime because
the foreman mistakenly thought he was a member
of Respondent Union."
4. Reletter Conclusions of Law 6 and 7 as 7 and
8, respectively.
AMENDED REMEDY •
Having found that Respondent Employer and
Respondent Union have engaged in certain unfair
labor practices, we shall order them to cease and
desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent Employer violat-
ed Section 8(a)(3) and (1) of the Act by refusing to
assign unscheduled overtime work to the travelers
employed on the Shell Oil Project in Carson, Cali-
fornia, from 1 March through 31 May 1982 because
of their nonmembership in Respondent Union and
by laying off 129 travelers listed in Appendices A,
B, and C of the judge's decision between 7 April
and 19 May 1982 for the same reason, and having
found that Respondent Union violated Section
8(b)(2) and (1)(A) of the Act by causing or at-
tempting to cause Respondent Employer to engage
in such conduct, we shall order Respondent Em-
ployer and Respondent Union, jointly and several-
ly, to make whole the travelers for any loss of
earnings or other benefits they may have suffered
as a result of the discrimination against them, as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). The Re-
spondents' backpay liability will toll no later than
the date Respondent Employer's work on the Shell
Oil Project ended.
We shall also order Respondent Employer to
inform each of the discriminatees, in writing, that
he or she will be considered eligible for future em-
ployment on a nondiscriminatory basis at any of its
projects if he or she chooses to apply for employ-
ment at any of them. We shall order Respondent
Union to inform each of the discriminatees, in writ-
ing, that it has no objection to his or her future em-
ployment at any of Respondent Employer's
projects.
We shall further order Respondent Employer
and Respondent Union to mail copies of the notices
in Appendices A and B, respectively, to each em-
ployee Respondent Employer employed as a pipe-
fitter on the Shell Oil Project from 1 March
through 31 May 1982.
We shall also order Respondent Union to permit
applicants for employment who register for work
at its exclusive hiring hall to examine, on request,
its dispatch books.
ORDER
The National Labor Relations Board orders that
A. The Respondent Employer, M. W. Kellogg
Constructors, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or refusing to assign unscheduled
overtime work or in any other manner discriminat-
ing against any employee because of his or her
nonmembership in United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
Local 250, AFL-CIO or any other union.
(b) Telling employees that they are being dis-
criminated against in regard to unscheduled over-
time assignments or layoff selection because of
their nonmembership in Respondent Union, or any
other union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act. .
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole, jointly and severally with Re-
spondent Union, the travelers employed on the
Shell Oil Project in Carson, California, from 1
March through 31 May 1982 for any loss of un-
scheduled overtime pay, and the 129 travelers
named in Appendices A, B, and C of the judge's
decision for any loss of earnings or other benefits
suffered as a result of the discrimination against
them, in the manner set forth in the remedy section
of the decision.
(b) Inform the individuals named in Appendices
A, B, and C of the judge's decision, in writing, that
they will be eligible for future employment at any
of its projects on a nondiscriminatory basis if they
choose to apply for employment at any of them.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Mail a copy of the attached notice marked
"Appendix A" 13 to each individual it employed as
a pipefitter on the Shell Oil Project between 1
March and 31 May 1982. Copies of the notice, on
forms provided by the Regional Director for
Region 21, after being signed by Respondent Em-
ployer's authorized representative, shall be mailed
by Respondent Employer immediately upon re-
ceipt.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Employer has taken to comply.
B. The Respondent Union, United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local 250, AFL-CIO, Gardena, Califor-
nia, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Respondent
Employer to lay off, or refuse to assign unsched-
uled overtime work to, any employee because of
his or her nonmembership in Respondent Union.
(b) Telling employees that they are being dis-
criminated against in regard to unscheduled over-
time assignments because of their nonmembership
in Respondent Union.
(c) Threatening employees with loss of employ-
ment if they contest Respondent Employer's prac-
tice of discriminating against employees because of
their nonmembership in Respondent Union.
(d) Refusing to permit applicants for employ-
ment who register for work at its exclusive hiring
hall to examine, on request, its dispatch books.
(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole, jointly and severally with Re-
spondent Employer, the travelers employed on the
Shell Oil Project from 1 March through 31 May
1982 for any loss of unscheduled overtime pay, and
the 129 travelers named in Appendices A, B, and C
of the judge's decision for any loss of earnings or
other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the
remedy section of the decision.
(b) Inform the individuals named in Appendices
A, B, and C of the judge's decision, in writing, that
it has no objection to their future employment at
any of Respondent Employer's projects.
13 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
(c) Permit applicants for employment who regis-
ter for work at its exclusive hiring hall to examine,
on request, its dispatch books.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all dispatch and other hiring hall records nec-
essary to analyze the amount of backpay due under
the terms of this Order.
(e) Post at its business offices and hiring hall, and
mail to each individual employed as a pipefitter on
the Shell Oil Project between 1 March and 31 May
1982, copies of the attached notice marked "Ap-
pendix B." 14 Copies of the notice, on forms pro-
vided by the Regional Director for Region 21,
after being signed by Respondent Union's author-
ized representative, shall be posted by Respondent
Union immediately upon receipt and maintained for
60 consecutive days in conspicuous places includ-
ing all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Union has taken to comply.
i4 fn 13, above
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT lay you off, refuse to assign you
unscheduled overtime work, or in any other
manner discriminate against any of you because of
your nonmembership in United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local 250, AFL-CIO or any other union.
WE WILL NOT tell any of you that you are being
discriminated against in regard to unscheduled
overtime assignments or layoff selection because of
your nonmembership in the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole, jointly and severally with
the Union, the travelers employed on the Shell Oil
M. W. KELLOGG CONSTRUCTORS 1055
Project in Carson, California, from 1 March
through 31 May 1982 for any loss of overtime pay,
and the 129 travelers named in Appendices A, B,
and C of the judge's decision for any loss of earn-
ings or other benefits resulting from the discrimina-
tion against them, less any net interim earnings,
plus interest.
WE WILL inform the individuals named in Ap-
pendices A, B, and C of the judge's decision, in
writing, that they will be eligible for future em-
ployment at any of our projects on a nondiscrim-
inatory basis if they choose to apply for employ-
ment at any of them.
M. W. KELLOGG CONSTRUCTORS,
INC.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause M. W.
Kellogg Constructors, Inc. to lay you off or refuse
to assign unscheduled overtime work to any of you
because of your nonmembership in us.
WE WILL NOT tell you that you are being dis-
criminated against in regard to unscheduled over-
time assignments because of your nonmembership
in us.
WE WILL NOT threaten you with loss of employ-
ment if you contest M. W. Kellogg Constructors'
practice of discriminating against employees be-
cause of their nonmembership in us.
WE WILL NOT refuse to permit applicants for
employment who register for work at our exclusive
hiring hall to examine, on request, our dispatch
books.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole, jointly and severally with
M. W. Kellogg Constructors, Inc., the travelers
employed on the Shell Oil Project from 1 March
through 31 May 1982 for any loss of unscheduled
overtime pay, and the 129 travelers named in Ap-
pendices A, B, and C of the judge's decision for
any loss of earnings or other benefits resulting from
the discrimination against them, less any net inter-
im earnings, plus interest.
WE WILL inform the individuals named in Ap-
pendices A, B, and C of the judge's decision, in
writing, that we have no objection to their future
employment at any of M. W. Kellogg Construc-
tors' projects.
WE WILL permit applicants for employment who
register for work at our exclusive hiring hall to ex-
amine, on request, our dispatch books.
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA, LOCAL 250, AFL-CIO
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in these cases which was held on several days
between August 1 and 11, 1983, is based on unfair labor
practice charges filed by an individual, Gilbert L. Smith,
against M. W. Kellogg Constructors, Inc. (Respondent
Employer) and United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local 250, AFL-CIO
(Respondent Union) and collectively referred to as the
Respondents. The initial charges were filed on June 10,
1982, and were amended March 21, 1983. Thereafter the
Regional Director of the National Labor Relations
Board for Region 21 consolidated these cases and on
March 30, 1983, on behalf of the General Counsel of the
National Labor Relations Board (the Board) issued a
consolidated complaint based on the aforesaid charges al-
leging that the Respondent Employer was engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act) and that the Respondent Union was engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
The consolidated complaint alleges that Respondent
Employer violated Section 8(a)(1) and (3) of the Act and
that Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by entering into, maintaining, and giving
effect to "an arrangement, understanding and practice"
pursuant to which the members of Respondent Union
employed by Respondent Employer were assigned over-
time and not selected for layoff in preference to employ-
ees, who are not members of Respondent Union, known
as travelers. The complaint further alleges that Respond-
ent Employer further violated Section 8(a)(1) and (3) of
the Act by assigning overtime work to members of Re-
spondent Union in preference to the nonmember travel-
ers thereby causing 157 named travelers to receive less
overtime work during the period from March 1 through
May 30, 1982, than they otherwise would have received
and by selecting for layoff 130 named travelers on the
dates alleged from April 7 through May 19, 1982, be-
cause they were not members of Respondent Union. Ad-
ditionally the complaint alleges that Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act by causing
Respondent Employer to engage in the aforesaid illegal
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct and violated Section 8(b)(1)(A) of the Act by
refusing the request of job applicants to examine Re-
spondent Union's referral and out-of-work list. Also the
complaint alleges that Respondent Employer violated
Section 8(a)(1) of the Act and Respondent Union violat-
ed Section 8(b)(1)(A) of the Act by virtue of several
statements made to employees by Respondent Employ-
er's foremen and Respondent Union's steward about the
aforesaid alleged illegal discrimination. Respondents filed
answers denying the commission of the alleged unfair
labor practices.
On the entire record, 1 from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondents admit that Respondent Employer meets
one of the Board's applicable discretionary jurisdictional
standards and is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.2
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondents' Alleged Discrimination Against the
Travelers in Favor of the Members of Respondent
Union Employed on the Shell Oil Project
1. The evidence
a. Respondent Employer's business and its operations
on the Shell Oil Project
Respondent Employer is a general contractor in the
building and construction industry whose headquarters is
in Houston, Texas. Its primary business is construction
for industrial customers in the petrochemical industry in
the several States of the United States and in other coun-
tries.
During 1981 and 1982 Respondent Employer, pursuant
to a contract with the Shell Oil Company, was engaged
in the modernization and expansion of facilities at Shell
Oil Company's oil refinery in Carson, California (the
Shell Oil Project). The facilities involved were the
orthoflow unit, also known as the catalytic cracker,
which makes gasoline from crude oil. Respondent Em-
ployer's work at the Shell Oil project was performed
while the refinery was operating and consisted of two
phases. The first phase, on which work began about June
1981, was the construction phase, during which Re-
spondent Employer built new facilities, including the re-
modeling and expansion of the catalytic cracker When
this phase of the project ended, approximately late in
May 1982, the second phase, referred to as the shut-
down, began and was completed about July 27, 1982, at
which time Respondent Employer's work on the project
ended. During the shutdown phase Respondent Employ-
' The General Counsel's motion to correct transcnpt is granted
2 Respondents admit that Respondent Union is a labor organization
within the meaning of Sec 2(5) of the Act
er integrated the newly constructed unit into the existing
facility.
Respondent Employer's work on the project was man-
aged by a resident construction manager, a construction
superintendent, and several craft superintendents, all of
whom were not represented by any labor organization.
Ned Bertrand was Respondent Employer's construction
superintendent. The record does not reveal the name of
Respondent Employer's piping superintendent who was
the craft superintendent responsible for the work of the
craft involved in this case. The employees involved in
this case, Respondent Employer's pipefitters, worked in
crews of from 6 to 12 persons. Each crew was super-
vised by a foreman. Several such foremen were super-
vised by a general foreman who was in turn supervised
by a head general foreman. All of these foremen, who
admittedly were statutory supervisors, were members of
Respondent Union and were referred to the Shell Oil
project through Respondent Union's hiring hall Their
terms and conditions of employment were established by
Respondents' collective-bargaining agreement covering
the project.
b. Respondent Union
Respondent Union's parent, the United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-
CIO (the United Association) regulates the geographic
and craft jurisdiction of its local unions. 3 The United As-
sociation charters pipefitter locals, plumber locals, sprin-
kler-fitter locals, metal trades locals, and combination
locals that dispatch more than one of those crafts. Re-
spondent Union is chartered by the United Association
to perform all of the industrial pipefitting work in Los
Angeles and Orange Counties which are in southern
California. It is not a combination local, rather it is a
straight line pipefitter local which has approximately
4200 active members, virtually all of whom are journey-
men pipefitters Respondent Union's principal official is
its business manager Richard Slawson. Its representative
on the Shell Oil project during the time material was
Richard Wareham, its job steward
Although there are indications in the United Associa-
tion's constitution that a member of a local union affili-
ated with the United Association must reside in that
local union's geographical territory, no such requirement
is contained in Respondent Union's constitution and
bylaws and, as a matter of fact, members of Respondent
Union are not required to reside and do not in fact reside
within its geographic jurisdiction. 4 The record reveals
a Respondent Employer in its postheanng brief "requests judicial
notice of the fact that the purpose of such regulation by the United Asso-
ciation is to preserve its labor monopoly by eliminating competition be-
tween locals and apportioning jurisdiction in a logical, equitable and effi-
cient manner" This request is denied because I am not persuaded that
the facts which I have been asked to judicial notice are either "generally
known" or "capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned" See
Fed R Evid 201(b)
4 Respondent Union is apparently not the only pipefitter local affiliated
with the United Association which does not require its members to reside
within the limits of its geographical jurisdiction See Daugherty Co. 147
NLRB 1295, 1298-99 (1964)
M. W. KELLOGG CONSTRUCTORS 1057
that membership in Respondent Union is not keyed to
residence within a circumscribed geographic area. No
evidence was introduced as to the proportion of Re-
spondent Union's members working on the Shell Oil
project who resided within the geographical jurisdiction
of Respondent Union.
c. Travelers
There are members of local unions affiliated with the
United Association who leave the areas where they
reside and travel to other areas in search of work. They
are referred to as travelers. Some travel only on a tem-
porary basis but others travel continuously. The United
Association's constitution requires that a traveler get a
travel card from his local union and deposit it with the
local union within whose jurisdiction he is seeking work.
The traveler continues to pay monthly dues to his local
union and is responsible for maintaining membership in
good standing in his local union, but pays a sum of $6 a
month to the local union in whose jurisdiction he is seek-
ing work. The $6 goes toward the local union's expense
of operating its hiring hall and of representing the travel-
er for purposes of collective bargaining.
d. Respondent's collective-bargaining relationship and
employment of the pipefitters on the Shell Oil project
The primary craftsmen used in Respondent Employ-
er's business are pipefitters including pipefitter welders,
herein referred to collectively as pipefitters. The United
Association is a labor organization with primary jurisdic-
tion over this craft. Thus Respondent Employer has his-
torically been a party to the National Construction
Agreement for the United States of America (the Nation-
al Construction Agreement), which is a collective-bar-
gaining agreement negotiated by and between the United
Association and the Natrional Constructors Association
on behalf of the Association's employer-members who
do business throughout the United States, one of whom
is Respondent Employer. This agreement provides that
to the extent not inconsistent with it certain practices
and terms of the local agreements shall bind the employ-
ers who are signatory to the National Construction
Agreement. The particular local agreement which was in
effect at the Shell Oil project is the 1980-1983 Independ-
ent Industrial and General Pipefitting Agreement (the
Local Agreement) between the contractors who perform
industrial and general pipefitting work in southern Cali-
fornia and those local unions, including Respondent
Union, located in southern California and affiliated with
the United Association, who have jurisdiction over the
work covered by the agreement.
Respondent Union's trade jurisdiction encompassed the
industrial pipefitting work performed by Respondent
Employer's employees on the Shell Oil project. Accord-
ingly the project was staffed through Respondent
Union's hiring hall pursuant to the hiring provisions, arti-
cle V, of the Local Agreement. In pertinent part article
V obligated Respondent Employer to employ only quali-
fied journeymen "steamfitters, pipefitters and/or weld-
ers" (collectively referred to as journeymen pipefitters)
who have had 4 years of actual, practical working expe-
rience in the pipefitting trade in the building and con-
struction industry. It further obligated Respondent Em-
ployer to hire these workers through Respondent
Union's hiring facility. Article V also provides that Re-
spondent Union, on the request of Respondent Employ-
er, shall refer qualified pipefitter applicants from its
hiring hall to Respondent Employer in the following
order of preference: (1) those with 3000 hours of em-
ployment in Respondent Union's geographical jurisdic-
tion within the past 3 years for contractors who were
party to or covered by the Local Agreement; (2) those
with 3000 hours of employment within the past 3 years
in the geographical area covered by the Local Agree-
ment with any of the contractors who were party to that
agreement; (3) those with 3000 hours of employment in
the State of California within the past 3 years as employ-
ees of employers party to a collective-bargaining agree-
ment signed with a local union affiliated with the United
Association in the State of California; and (4) those with
less than 3000 hours of employment within the past 3
years regardless of their place of employment so long as
the applicant qualified as a journeyman pipefitter. As a
practical matter the effect of the hiring hall provisions is
that those applicants who qualified for the first category,
book 1, were usually members of Respondent Union and
those applicants who qualified for the remaining three
categories, books 2, 3, and 4, were usually either travel-
ers or nonmembers of a United Association local.
During the period in which the major part of the con-
struction phase of the Shell Oil project was in process,
there was a shortage of journeymen pipefitters registered
at Responent Union's hiring hall who were able to regis-
ter on book 1. As a result, during this phase of the
project, Respondent Union referred to Respondent Em-
ployer a substantial number of journeymen pipefitters
registered on books 2 through 4 who were travelers. In
addition there was also a shortage of traveler journey-
men pipefitters registered on the out-of-work list so Re-
spondent Union, in order to meet Respondent Employ-
er's requests for pipefitters, allowed a substantial number
of journeymen plumbers to register on the out-of-work
lists and referred them to the project as journeymen
pipefitters. All of the aforesaid travelers had deposited
their travel cards with Respondent Union. A substantial
number of them left their residences and traveled to Re-
spondent Union's geographical area only after having
been told by their own business agents that Respondent
Union had notified said business agents that there was
work available for them in Respondent Union's hiring
hall.
e. The assignment of unscheduled overtime
There are two types of overtime in the construction
industry: unscheduled and scheduled overtime. Unsched-
uled overtime occurs when employees continue to work
after their regularly scheduled five 8-hour days, Monday
through Friday. Even if this overtime is scheduled a few
days in advance it is still considered unscheduled over-
time. Scheduled overtime occurs when employees on a
regular basis are scheduled to work more than the usual
five 8-hour days, i.e., 6 days a week, 10 hours per day.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the Shell Oil project there was no scheduled over-
time during the construction phase, June 1981 through
May 1982, and until March 1982 there was virtually no
unscheduled overtime. During March, April, and May
1982 as the construction phase came to a conclusion
there was a substantial increase in the amount of un-
scheduled overtime worked by the pipefitters. The Na-
tional Construction Agreement and the Local Agreement
are silent about the assignment of unscheduled overtime.
During the months of March through May 1982 the
numbers of hours of unscheduled overtime assigned by
Respondent Employer to members of Respondent Union
and the nonmember travelers were as follows:5
Payroll Week
Hrs. of
Over-
time.
Mem-
bers
Hrs.
of
Over-
time,
Trav-
elers
10 74 4
11 170 12 5
12 409 85
13 434.5 17
14 334 1.5
15 162 3
16 119 5 1
17 364.25 11.5
18 391.75 24
19 188.5 1.5
20 332 25 27
21 486 0
During the months of March through May 1982 the
number of travelers and members of Respondent Union
employed by Respondent Employer on the Shell Oil
project was as follows:6
Members Travelers
3/8/82 236 131
3/15/82 243 141
3/22/82 240 150
3/25/82 243 140
4/5/82 236 140
4/12/82 226 100
4/19/82 216 97
4/26/82 208 92
5/3/82 203 58
5/10/82 208 32
5/17/82 212 14
5/24/82 201 1
5/31/82 277 1
5 These figures do not Include the number of hours of unscheduled
overtime worked by the foremen, all of whom were members of Re-
spondent Union
° These figures include those members of Respondent Union employed
as foremen
f Respondent's statements to travelers about overtime
work
Respondent Union's steward on the Shell Oil project
from January 1982 until the end of the project was Rich-
ard Wareham and prior to that the Union's steward on
the project was Ronald Gilbert. When new hires were
dispatched to the project from Respondent Union's
hiring hall, the first thing they did on arriving at the job-
site was to give their referral slips to the union steward
at which time the steward, before taking workers to the
warehouse for their hardhats and to the general foreman
for their job assignments, told them about the various
company rules and regulations which governed the job.
The record establishes that in 1981 Union Steward Gil-
bert and in 1982 Union Steward Wareham, in explaining
the various company work rules to the new hires, told
them that the travelers on the job would not be assigned
any of the unscheduled overtime work. Also on at least
one occasion Wareham told them that the orders that the
travelers would not work any overtime had come from
"up front" and on another occasion stated to a group of
new hires that where there was overtime work the trav-
elers would be replaced by "local 250 men."7
In April 1982 Rigging Crew Foreman Wayne Shouse
on a Thursday asked the employees on his crew, at least
two of whom were travelers, if they wanted to work the
coming Saturday. Everyone indicated that they wanted
to work. The next day, Shouse told the crew that the
travelers on the crew could not work the Saturday over-
time. When one of the travelers asked for an explanation
for this action, Shouse stated that travelers would not be
assigned overtime.8
In April 1982 Foreman Wayne Springer, whose crew
consisted of virtually all travelers, on more than one oc-
casion told members of his crew that since the crew was
comprised of travelers he could not assign the crew any
overtime and that because he did not think this was fair
he had refused to work the overtime supervising another
crew and did not intend to work any overtime. Wayne
Springer's father, Bill Springer, who was also a foreman,
likewise stated that he felt the same way and did not
intend to work the overtime because if the men he super-
vised could not work it then he would not work it. Also
Foreman Wayne Spnnger on one of these occasions ex-
plained to traveler Gerald Mayes that the instruction that
7 The above-described statements attributed to Steward Gilbert are
based on the undemed testimony of traveler Hector Martel who im-
pressed me as a credible witness The above-described statements attrib-
uted to Steward Wareham are based on the testimony of travelers Keith
Pashby, William Grady, and Larry Lindquist Wareham testified that he
never really talked to the new hires about the subject of overtime, but
merely stated to them that if they worked overtime on a Tuesday they
would not get paid for It until the following week I have rejected Ware-
ham's testimony and credited the testimony of Pashby, Grady, and Lin-
guist because their testimonial demeanor was good whereas Wareham's
was poor
8 The above descnption of Foreman Shouse's conduct is based on the
testimony of travelers Paul Mathieson and George Dies who impressed
me as being sincere and reliable witnesses Shouse failed to deny engag-
ing in the conduct MatMeson and Bics attributed to him
M. W. KELLOGG CONSTRUCTORS 1059
the travelers would not work the overtime had come
from Local 250.°
In April 1982 Foreman Jack Moore told his crew,
which included several travelers, that they could expect
to work some overtime. The next day Moore retracted
this statement; he told the crew that "there was not
going to be any travelers going to work the overtime,
just local hands." Also during the same period of time
Foreman Moore asked one of the welders on his crew,
who was a member of Respondent Union, to work some
overtime, but failed to ask the welder's working partner
who was a traveler. The welder's working partner, trav-
eler Hector Martel, asked why Moore did not ask him to
work overtime. Moore replied by stating that no travel-
ers would work overtime.
On several occasions Foreman Joe Poletti asked the
welder who worked with traveler Martel to work over-
time but failed to likewise ask Martel to work the over-
time. The welder was a member of Respondent Union,
whereas Martel as a traveler was not a member of Re-
spondent Union. When Martel asked, "[How] about me,"
Poletti told him, "[N]o, you're a travel card" and when
Martel asked, "[H]ow come we don't work," Poletti
stated, "orders from up high."
Traveler William Grady credibly testified that on oc-
casion his crew worked overtime, but that Grady and
the other travelers on the crew were not assigned to
work the overtime and that once his foreman Al Thuotte
apologized to Grady and Grady's welder, who was also
a traveler, for not assigning them any of the overtime
work and explained to them that "it was the policy of
local 250 that he just could not give [them] any over-
time."1°
Traveler Virgil James was never asked to work over-
time even though those members of his crew who were
members of Respondent Union were assigned to work
overtime. On several occasions James' foreman Joe
Breiter and Breiter's general foreman Bill Stuart told
James that he was not being asked to work overtime be-
cause he was a traveler."
In March 1982 traveler Gerald Mayes discovered that
other members of his crew were being assigned to work
overtime but that he was not, so he asked General Fore-
man T. J. Cratsenburg the reason for this. Cratsenburg
replied by stating, "[T]he travelers cannot work over-
9 The above description of Foreman Wayne Springer's conduct is
based on the undenied testimony of travelers Gerald Mayes, Cloyd
Colby, and Gilbert Smith. Each one of these witnesses impressed me as a
sincere and reliable witness.
10 Although Foreman Thuotte did not specifically deny having the
above-described conversation, he testified that Grady once informed him
that he did not desire to work overtime. Initially Thuotte testified that
Grady had told him "that he's had his time and give it to the other
guys." Later Thuotte gave a different account of Grady's refusal to work
overtime, now testifying that when Grady was told by Thuotte that there
would be some overtime in a day or two that Grady responded by stat-
ing, "Mou can give that to the younger guys. I don't need to go up
those stairs." I have credited Grady's above-described 'testimony because
his testimonial demeanor was good, whereas Thuotte's was poor.
" Based on the testimony of James who when he testified seemed to
be a sincere and reliable witness. Breiter did not refute James' testimony
and Stuart was unable to categorically deny James' testimony. Stuart tes-
tified he was unable to specifically recall whether he talked with James
about overtime. Demeanorwise, James impressed me as a more credible
witness than Stuart.
time, just the local people." Also in April 1982 Cratsen-
burg, in response to an inquiry from traveler Gilbert
Smith as to whether Smith would be assigned to work
overtime that week, told Smith, "[N]o, just local hands
will work the overtime."12
Early in April 1982 traveler Michael Cangi, who was
working on an instrumentation crew supervised by Fore-
man Marty Jewitt, was asked by Jewitt to work on Sat-
urday, which was unscheduled overtime. Cangi observed
that Jewitt did not ask Cangi's working partner, a
member of Respondent Union, to work this overtime.
Cangi told Jewitt that he felt uncomfortable working the
overtime because Jewitt had not asked Cangi's working
partner who was a member of Respondent Union to
work with him. Jewitt replied by stating that it did not
matter whether Cangi was a travel card or local, that
Cangi was qualified and that Jewitt wanted him to work
that Saturday. Cangi complied and worked this overtime.
Thereafter Jewitt asked Cangi to work on another Satur-
day, but when Cangi observed that his working partner
had again not been asked to work this overtime, Cangi
went and spoke to Respondent Union's job steward,
Richard Wareham. Cangi explained to Wareham that he
had been asked to work that Saturday but felt uneasy
about it because other workers on his crew who are
members of Respondent Union had not been asked to
work the overtime. Wareham told him that "the only
reason" Cangi was working the Saturday overtime was
because General Foreman Jess Hughes thought that
Cangi was a member of Respondent Union. Cangi stated
that he felt uneasy about working the coming Saturday
because he did not want to ruin a good friendship among
the crew and create hard feelings. Wareham responded
by stating, "[Ljet your conscience be your guide." Cangi
called in sick and did not work the Saturday overtime.
The following Monday General Foreman Hughes asked
him why he had not come to work Saturday. Cangi in-
formed him that he had felt uneasy because he was a
traveler and that his working partner, who was a
member of Respondent Union, was not asked to work.
Cangi also told Hughes that "it's a standard procedure—
I've worked in the Union 23 years and local members
usually get preference [for] overtime." Hughes replied by
stating that he knew that Cangi was qualified because he
had worked with him on other jobs and that when Cangi
The findmgs in this paragraph are based on the testimony of Gerald
Mayes and Gilbert Smith who demeanorwise Impressed me as credible
witnesses. Cratsenburg admitted that in selecting workers for unsched-
uled overtime it was the practice of the foremen under his supervision to
select members of Local 250 rather than travelers and that Cratsenburg
only assigned overtime to travelers in "an emergency." (Tr. 1003, 1043.)
Cratsenburg did not deny engaging in the above-described conduct at-
tnbuted to him by Mayes and Smith. However, with respect to Mayes,
he testified that the reason he never asked Mayes to work overtime was
that he knew that Mayes did not like to work in high places and with
respect to Smith testified that Smith got all of the overtime that was
available for his crew. To the extent that this constitutes a denial that he
made the above-described statements to Mayes and Smith, I have cred-
ited Mayes' and Smith's testimony because their testimonial demeanor
was excellent whereas Cratsenburg gave me the impression that he was
solely interested in furthering the Respondents' position and not in the
truth.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was asked to work overtime Hughes expected him to
obey. 1 3
g. The layoffs
The first phase of the Shell Oil project, the construc-
tion phase, ended late in May 1982 at which time the
second and final phase commenced. This was the shut-
down phase during which the newly constructed facili-
ties were integrated into the existing facilities The shut-
down lasted until approximately the middle or end of
July 1982 and all of the pipefitters employed on the
project during this phase worked substantial amounts of
regularly scheduled overtime. As I have noted supra,
there was no regularly scheduled overtime work during
the construction phase.
When the construction phase entered its final stages in
April and May 1982 Respondent Employer for a legiti-
mate business reason reduced significantly the number of
ptpefitters it employed on the project. These layoffs
commenced during the week ending Friday, April 9,
1982, and ended during the week ending Friday, May 21,
1982. 14 Shortly thereafter Respondent Employer in-
creased its work force of pipefitters significantly in order
to meet its manpower requirements for the shutdown
phase of the project. The numbers involved in these lay-
offs and rehires are as follows.
On April 5, 1982, the total number of pipefitters, in-
cluding foremen employed by Respondent Employer on
the project, totaled 378 of whom 140 were travelers and
238 were members of Respondent Union. (Jt. Exh. 1,
App. J.) During the period starting from the week
ending April 9 through the week ending May 21, 1982, a
total of 180 pipefitters were laid off; 132 travelers and 48
members of Respondent Union (it. Exh. 1, App. E.)15
When viewed in terms of percentages approximately 37
percent of the pipefitters employed immediately before
the layoffs commenced were travelers, yet 73 percent of
the pipefitters selected for layoff were travelers. The
result was that on May 24, 1982, at the completion of
this series of layoffs there was a total of 202 pipefitters
including foremen employed on the project, only 1 of
whom was a traveler. (Jt Exh. 1, App. J.)
Sometime during the week ending May 31, 1982, Re-
spondent Employer commenced to hire additional pipe-
fitters to work the shutdown and from this time until the
13 The findings in this paragraph are based on the undemed and un-
contradicted testimony of Cangi, who impressed me as a trustworthy and
reliable witness
' 4 During the April-May 1982 layoffs Respondent Employer hired 34
pmefitters, all of whom were members of Respondent Union, 13 of whom
were classified as pipefitters, 17 as instrument fitters, and 4 as welders
During this same period Respondent Employer laid off travelers whose
trade classifications were pmefitters, instrument pipefitters, and welders
A total of 15 of the 34 new hires had previously worked on the Shell Oil
project and had left under the following circumstances 11 quit, 2 were
discharged for absenteeism, and 1 was discharged for smoking in a non-
smoking area
' 5 The 132 laid-off travelers had the following United Association
trade classifications 55 plumbers, 37 welders, and 40 pipefitters, which
Included 2 sprinkler/fitters and 5 Instrument fitters (.1t Exh 1, App E)
The 48 laid-off members of Respondent Union had the following United
Association trade classifications 29 pipefitters, including 2 instrument fit-
ters, 6 metal trades fitters, and I apprentice, and 19 welders of whom 6
were metal trades welders and 1 was an Instrument welder
end of the shutdown hired approximately 200 pipefitters
to work on the project, none of whom were travelers.
All of the aforesaid new hires were dispatched by Re-
spondent Union to the project from the group 1 dispatch
book pursuant to the terms of the Local Agreement. Of
the 200 new hires 93 had been employed by Respondent
Employer at some time earlier on the project and of
these 10 had been discharged for cause and 12 had been
laid off during the previous layoffs in Apnl-May 1982.
As I have found, supra, only one traveler pipefitter re-
mained employed on the project after the April-May
1982 layoffs. This traveler was Paul Foster. The only ex-
planation advanced by Respondent Employer for not
laying off Foster with all of the other travelers was the
testimony of General Foreman T. J. Cratsenburg which
was given during the General Counsel's cross-examina-
tion. Cratsenburg testified that the reason Foster was not
laid off with the other travelers was that Foster had
group 1 status because he had worked 3000 hours of em-
ployment in the geographical area of Respondent Union
as a journeyman pipefitter under the Local Agreement.
Cratsenburg further testified that it was Cratsenburg's
understanding that Foster had book 1 status from the
time he was initially referred to the project as he had
been dispatched to the project by Respondent Union
from book 1. I reject Cratsenburg's testimony for the fol-
lowing reason.
There is no evidence that at the time of the April-May
1982 layoffs Foster qualified for book 1, let alone evi-
dence that Foster had documented the number of hours
he had worked within Respondent Union's jurisdiction
and gone to the Union with this documentation and
asked to be placed on book 1. Quite the opposite, the
record shows that Foster was dispatched to the project
from book 2, not book 1, and that it was not until July 6,
1984, after his layoff from the project that Foster for the
first time registered at Respondent Union's hiring facility
on book 1 and that this book was not Respondent
Union's usual book 1 on which persons classified as pipe-
fitters registered, but the Union registered him on the
Plumbers book also known as the Subjourneymen's
book.
Traveler Fernando Moore who was classified by the
United Association as a journeyman pipefitter was laid
off with the other travelers in May 1982 even though he
qualified for pipefitters book 1 status at the time of his
layoff. Also travelers Hector Martel and Gerald Mayes
and Gilbert Smith, who like Foster were classified by the
United Association as journeymen plumbers, were laid
off with the other travelers in May 1982 even though
they, like Foster, qualified for plumbers book 1 status at
the time of the layoff.
Cratsenburg's testimonial demeanor was poor. In gen-
eral he left me with the impression that he was not a sin-
cere and reliable witness. He seemed to be an insincere
witness who was intent on slanting his testimony so that
it would be helpful to the Respondents' case. This con-
clusion which is based on my observation of Cratsen-
burg's demeanor is bolstered by a significant inconsisten-
cy between Cratsenburg's testimony given during the
hearing and the testimony contained in his prehearing af-
M. W. KELLOGG CONSTRUCTORS 1061
fidavit submitted to the National Labor Relations Board.
In his prehearing affidavit Craftsenburg swore that in se-
lecting pipefitters for layoff the foremen under his super-
vision gave no consideration to whether they were mem-
bers of Respondent Union or whether they were plumb-
ers or pipefitters by trade or what dispatch book they
had been referred from to the project, but that the fore-
man selected pipefitters for layoff on the basis of their
ability. In short Cratsenburg informed the Board that Re-
spondent Employer in selecting pipefitters for layoff did
not in any way prefer travelers for layoff over members
of Respondent Union, but treated them equally so long
as their ability was equal. However, during the hearing
Respondent Employer conceded that Respondent Em-
ployer's foremen in selecting pipefitters for layoff fol-
lowed an alleged longstanding industry practice pursuant
to which they retained members of Respondent Union
over travelers regardless of ability. Contrary to his affi-
davit, Cratsenburg during the hearing in this proceeding
testified that the practice in the pipefitting industry is for
foremen to lay off travelers before members of the local
union in the geographical jurisdiction in which the
project is located and that on the Shell Oil project this
practice was followed. Cratsenburg further testified that
if the foremen under his supervision had not followed
this practice of laying off travelers before the members
of Respondent Union that Cratsenburg "would have
went and talked to [the foremen] and I would have
asked them what the hell they were doing."
It is for all of the foregoing reasons, plus the fact that
there was no corroboration of Craftsenburg's testimony
that Foster was not laid off because he had qualified for
book 1, 16 that I have rejected his testimony that this was
the reason Foster was not laid off with the other travel-
ers. Also, for the same reasons, I reject his further testi-
mony, given in response to a leading question, that if a
traveler on the Shell Oil project worked the requisite
number of hours so as to qualify for book 1 status such a
traveler was treated like a member of Respondent Union
for layoff and overtime purposes.
Not only do I reject Cratsenburg's testimony concern-
ing the reason for Respondent Employer's failure to lay
off Foster, but I am persuaded that the circumstantial
evidence warrants the inference that the real reason for
Respondent Employer's failure to lay off Foster with the
other travelers was the it mistakenly thought that he
was a member of Respondent Union rather than a travel-
er. This conclusion is based on the following consider-
ations.
When Foster was dispatched to the Shell Oil project
on October 6, 1981, the referral slip issued to him by Re-
spondent Union's dispatcher, which referral slip is used
by Respondent Employer for recordkeeping purposes
(Tr. 840), inadvertently failed to note that Foster was a
traveler. Normally when a traveler pipefitter was dis-
patched to the project the dispatcher noted this fact on
the face of the referral slip with the number of the
16 Foster's foreman, the person who decided that Foster would not be
laid off, was not called by Respondent Employer to explain why Foster
was not laid off with all of the other travelers.
United Association Local to which the traveler be-
longed.
Traveler Mayes testified that when General Foreman
Cratsenburg in April 1982 told Mayes that Mayes could
not work overtime because only local people could work
it that Foster who was Mayes' welder was present, and
that in the same breath Cratsenburg asked Foster to
work the overtime. Likewise the foreman over Mayes'
crew in denying Mayes' request to work unscheduled
overtime stated to Mayes, in Foster's presence, that trav-
elers could not work overtime, yet in the same breath se-
lected Foster to work the overtime. Under the circum-
stances I think that it is a fair inference that because of
Foster's referral slip Cratsenburg and Foster's foreman
were under the mistaken impression that Foster was not
a traveler but a member of Respondent Union.
Respondent Employer's head foreman for the project,
William Goldie, testified that when the shutdown phase
of the project started there was not a single traveler em-
ployed in Respondent Employer's work force, thus indi-
cating that Respondent Employer believed that Foster,
who was still in its employ, was not a traveler.
It is for all of the foregoing reasons that I am of the
opinion that the reason Foster was not laid off with the
other travelers prior to the start of the shutdown was
due to Respondent Employer's mistaken belief that he
was a member of Respondent Union.
h. Respondents' statements to the travelers concerning
the layoffs
About May 1, 1982, Respondent Union's job steward
Richard Wareham was asked by a group of travelers
whether they would be able to work any overtime. The
credible and undenied testimony of traveler Gilbert
Smith is that Wareham responded by stating that "the
travelers probably will not even be working the shut-
down."
On May 14, 1982, the day that travelers Gilbert Smith
and Paul Mathieson were laid off, they went to Union
Steward Wareham following their layoff in order to get
their referral slips which they needed to reregister at Re-
spondent Union's hiring hall. During the ensuing conver-
sation Smith complained to Wareham about the layoff of
the travelers and the fact that new workers who were
members of Respondent Union were being hired at the
same time as the travelers were being laid off. Wareham
replied by stating "that's the way it is" and advised
Smith and Mathieson that "no travelers will be on the
job, only local hands will work," Smith stated that he
did not think that this was fair and intended to fight it.
Wareham replied by stating that if Smith did fight it that
Smith would never work in the area again."
" The description of Wareham's May 14, 1982 conversation with
Smith is based on a composite of Smith's and Mathieson's testimony.
Their testimony was not inconsistent and each of them testified in a sin-
cere and trustworthy manner. Wareham did not give his version of his
conversation with Smith, but specifically denied making the above-de-
scribed remarks attributed to him. I have rejected his denial because his
testimonial demeanor was poor, whereas the testimonial demeanor of
Smith and Mathieson, particularly Smith's, was good.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the construction phase of the project General
Foreman Bill Stuart asked traveler Michael Cangi on
more than one occasion whether Cangi was eligible to
transfer his membership into Respondent Union and told
Cangi that if he did this that Cangi would be able to
work the scheduled overtime connected with the shut-
down phase of the project with the rest of the "local
people."'
A few days before his Friday, April 30, 1982 layoff
traveler Virgil James was notified by his foreman Joe
Fahey that there would be a layoff that Friday which
would affect Fahey's crew, but that "the people being
laid off were not up to him [that] it was coming from
above." Thereafter, on the morning of the layoff Fahey
told James that General Foreman Bill Stuart "had given
him a list of people to be laid off and that [James' name]
was on it." Fahey stated, "[T]here was nothing he could
do about who was chosen to be laid off, that that came
down from Bill Stuart." Shortly after this General Fore-
man Stuart spoke to James and the others who were
being laif off that day and explained to them that he had
been ordered to reduce the workers employed on his
crews and "was told by his superiors to get rid of the
travelers." 9
Early in April 1982 General Foreman T. J. Cratsen-
burg, in response to traveler Paul Mathieson's inquiry
about whether Respondent Employer intended to lay off
the travelers, told Mathieson and traveler George Bics
that he was going to try to keep travelers Matheson,
Bics, Smith, Allen, and Mayes because they had been
doing a good job. Thereafter during the April-May 1982
layoffs when Mathieson expressed concern about being
laid off, Cratsenburg stated that Mathieson and the afore-
said four named travelers did not have to worry about
being laid off. Also, Cratsenburg during the April-May
1982 layoffs told traveler Gilbert Smith that Cratsenburg
was going to try to save the jobs of Smith as well as
travelers Mayes, Mathieson, Allen, and Bics and employ
them to do the rigging work during the shutdown phase
of the project. And in early April 1982 Cratsenburg told
traveler Cloyd Colby, in response to Colby's inquiry
about being laid off, that Cratsenburg was going to try
to save Colby from being laid off because Colby had
done a good job for Cratsenburg and at one time they
had been members of the same local union.2°
18 The descnption of Stuart's remarks to Quigi is based on Cangi's tes-
timony. Stuart testified that he could not imagine himself making these
remarks but was not able to specifically deny making them. I have cred-
ited Cangi's testimony because Cangi's testimonial demeanor was that of
a sincere and reliable witness.
The description of Fahey's and Stuart's remarks set forth above is
based on James' testimony. Fahey was not called to deny the remarks at-
tributed to him. Stuart failed to give his version of the remarks he made
to James and the other laid-off workers, but testified that he did not
"recall" telling James that he had been Instructed by his superiors to lay
off travelers first I have credited James' testimony and rejected Stuart's
because James' demeanor was that of a sincere and reliable witness,
whereas Stuart's demeanor was poor.
22 The descnption of the conversations set forth In this paragraph is
based on the testimony of Mathieson, Smith, and Colby, each of whom
Impressed me as a sincere and reliable witness Their testimony was not
denied by Cratsenburg who admitted that on more than one occasion he
told travelers Mathieson, Him, Smith, and Allen that they had been doing
a good job and that he was going to try to keep them through the shut-
down phase of the project.
On May 14, 1982, shortly after travelers Mathieson,
Bics, and Smith were notified that they were being laid
off that day, General Foreman Cratsenburg spoke to
them and apologized for not being able to keep them on
the project for the shutdown phase. He told them that
there was nothing he could do about this, that there
would not be any travelers working the shutdown phase
of the project, and that this instruction had been issued
by someone above him, either from "the top," or "higher
up," or "from the man."2'
Early in April 1982 Foreman Marty Barnes told trav-
eler John Davis that the travelers on the project would
not be working the overtime on the shutdown because
"this was the way it was."22
On May 13, 1982, Foreman Wayne Shouse told travel-
ers Mathieson, Bics, and Smith, who worked on his
crew, that they would be laid off the next day. He ex-
plained to them that they were being laid off because
there would be no travelers working during the shut-
down phase of the project.23
On May 13, 1982, Foreman Bill Springer told traveler
Gerald Mayes, who was laid off May 14, 1982, that
while once before Springer had been able to remove
Mayes' name from the layoff list, this time "word had
come down from 250 that all travelers will go" and that
Springer had unsuccessfully talked to the head foreman
but that his hands were tied.24
Early in April 1982 Foreman Wayne Springer asked
traveler Cloyd Colby what shift he wanted to work
during the shutdown phase of the project, and noted
Colby's preference in his notebook. Thereafter on May 6,
1982, the day before Colby's layoff, Colby was told by
Springer that he was sorry to have to tell him that he
was being terminated the next day and explained to
Colby that all of the travelers were going to be terminat-
ed either that week or the following week.25
In May 1982, shortly before traveler William Grady's
May 7, 1982 layoff, his foreman A. L. Thuotte spoke to
Grady and two other travelers about the layoff. Thuotte
told them he was not supposed to tell them that they
were going to be laid off, but that all of the travelers
would be laid off before "the big overtime starts" (a ref-
erence to the shutdown phase of the project during
which regular overtime was scheduled), and that the
overtime "will all go to 250 men."26
21 The description of Cratsenburg's above remarks is based on a com-
posite of Mathieson's, Bics', and Smith's testimony only to the extent that
their testimony is not inconsistent. They impressed me as trustworthy
witnesses when they gave the above-described testimony. I have not
credited Mathieson's testimony that Cratsenburg, in response to Mathie-
son's inquiry, identified Respondent Union's business manager Slawson as
the person who ordered the layoff of the travelers. His testimony in this
respect was contradicted by Hies and Smith, who testified that Cratsen-
burg did not mention Slawson's name.
22 Based on the undenied testimony of Davis who impressed me as a
credible witness.
23 Based on the undenied testimony of Mathieson and Bics who ha-
pressed me as sincere witnesses.
24 Based on the underued testimony of Mayes who impressed me as a
sincere witness.
23 Based on the undemed testimony of Colby who impressed me as a
credible witness.
24 Based on Grady's testimony. Thuotte testified that he did not tell
any of his crew that they were being laid off because they were travelers
Continued
M. W. KELLOGG CONSTRUCTORS 1063
i. The competency of the travelers employed on the
Shell Oil project who were laid off and denied overtime
work
The United Association has historically divided its
members into different trades. The relevant trade classifi-
cations involved in this case are the pipefitter and plumb-
er classifications. The pipefitter classification includes
those pipefitters who specialize as welders or instrument
fitters. The work of the pipefitters usually involves in-
dustrial pipelining, namely, working on the piping and
receptacles connected with high-pressure piping systems,
including the instruments and controls connected with
such systems, in the heavy manufacturing, petrochemical,
and utility power industries. The work of the plumbers is
usually confined to low-pressure piping systems, includ-
ing the instruments and controls connected with such
systems, associated with residential and commercial con-
struction.
-Respondent Union is a straight line pipefitters local;
virtually all of its members are classified as pipefitters.
Respondent Union's contractual relationship with Re-
spondent Employer obligated it to dispatch qualified
journeymen pipefitters to Respondent Employer's Shell
Oil project. However, due to an insufficient number of
applicants registered on book 1 at its hiring hall facility
Respondent Union, in order to meet the employment re-
quirements of Respondent Employer, was forced to rely
on the applicants registered in its other books, who were
traveler pipefitters and plumbers.
There is no evidence of the number of travelers and
members of Respondent Union employed on the Shell
Oil project prior to March 1982. But the record reveals
that during March 1982 and through April 5, 1982, be-
tween 36 and 38 percent of the pipefitters employed on
the Shell Oil job were travelers, either pipefitters or
plumbers by trade. Thereafter in April 1982, approxi-
mately 31 percent of the pipefitters on the project were
travelers, either pipefitters or plumbers by trade. This
percentage dropped to 22 percent on May 3, 1982; 13
percent on May 10, 1982; 6 percent on May 17, 1982;
and thereafter less than 1 percent. As I have found supra,
Respondent Employer retained one traveler on the job
after May 17, 1982, when it mistakenly believed that he
was a member of Respondent Union.
The record, prior to April 1982, does not reveal the
proportion of the travelers employed on the project who
were classified by trade as plumbers and steamfitters.
The sole evidence on this subject is that of the 132 trav-
elers laid off during the months of April-May 1982, 57
percent or 75 were pipefitters by trade and 43 percent or
57 were plumbers by trade. 27 Absent any evidence to
the contrary I shall presume that during the relevant
period during which Respondent Employer was assign-
ing unscheduled overtime, March through May 1982,
and further testified that when he notified Grady of his layoff that he
told him that the reason for the layoff was "probably because he was
book 2, estimated as book 2, and then we were going to book one." I
have rejected Thuotte's testimony and credited Grady's because the testi-
monial demeanor of Thuotte was poor, whereas Grady's was good.
27 The 57 plumbers include 2 who were sprinkler fitters by trade
which classification appears to be more closely related to the plumber
classification in terms of normal industrial pipefitting work experience.
this was the breakdown between traveler pipefitters and
plumbers employed on the project.
I shall now set forth and evaluate evidence pertaining
to the competency of the travelers employed on the
project.
(1) The pipefitters
It is undisputed that all members of the United Asso-
ciation classified as pipefitters by trade have comparable
minimum qualifications to perform work normally as-
signed to persons with this trade classification. The only
evidence that specific traveler pipefitters by trade em-
ployed on the Shell Oil project were not performing
their work competently or were otherwise less than satis-
factory workers is the fact that during April 1982 three
were discharged; two for lack of production and one for
absenteeism. However, during this same period 25 fitters
who were members of Respondent Union were dis-
charged; 3 for lack of production. Other than this there
is no specific evidence that Respondent Employer re-
garded any of the travelers on the project, who were
pipefitters by trade, as less than satisfactory workers.2
And the testimony of the three travelers who testified in
this proceeding, who were pipefitters by trade, estab-
lishes that each of them was eminently qualified to per-
form the whole gamut of duties expected of them on the
project. One was a member of a United Association
straight line pipefitters local and the other two were
members of combination locals. Likewise, the record re-
veals that several of the travelers who were pipefitters
by trade had been working as pipefitters immediately
prior to their employment on the project as pipefitters
for the Bechtel Construction Company at the San
Onofre, California Nuclear Power Plant under the terms
of the National Contractors Agreement. 29 Under the cir-
cumstances, absent a prima facie showing that the travel-
er pipefitters by trade employed on the Shell Oil project
were less qualified as a group than Respondent Union's
members to do the project's pipefitting work, I will not
presume that they were less qualified than Respondent
Union members to work the shutdown phase or the un-
scheduled overtime during the construction phase. Quite
the opposite, since all members of the United Association
classified as pipefitters by trade have comparable mini-
28 I have considered the testimony of General Foreman Cratsenburg
that he never observed a single traveler pipefitter on the job whom he
felt was any good. Cratsenburg's testimony was completely without spec-
ificity. He failed to point to a single incident where he observed a travel-
er pipefitter by trade doing less than satisfactory work, nor did he name
even one traveler pipefitter, who was a pipefitter by trade, whom he con-
sidered to be less than a satisfactory worker. Also, as I have noted supra,
Cratsenburg gave me the impression from his testimonial demeanor that
he was not a sincere or reliable witness.
29 Presley Moore for approxmiately 2-1/2 years during 1978-1981;
John Ward for approximately 3 months during 1980-1981; Duane Sil-
lanpa for approximately 13 months during 1980-1982; Jeffrey Roland for
approximately 18 months during 1979-1981; Jeronimo Pins for approxi-
mately 14 months during 1978-1980; Forest Lenz for approximately 18
months during 1979-1981; and R. F. Trusty for almost 2 years. The
record also reveals that some of these pipefitters worked for Bechtel at
San Onofre under the terms of a maintenance contract which Bechtel had
with the power company. Where this was the case, however, the record,
G.C. Exit. 7, specifically reflects this and I have not relied on those peri-
ods of time in computing the aforesaid figures.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mum qualifications to perform work normally assigned
to persons with this trade classification, I have presumed,
absent a showing to the contrary, that the traveler pipe-
fitters by trade employed on the Shell Oil project as a
group were just as qualified as Respondent Union's mem-
bers to do the pipefitting work assigned on the project,
including the unscheduled overtime work and the work
during the shutdown phase of the project.3°
The record reveals that during the April-May 1982
period relevant to this case 75 travelers employed on the
project, who were pipefitters by trade, were laid off by
Respondent Employer. The complaint specifically names
each of these travelers and the respective dates that they
were laid off and alleges that each of the layoffs was ille-
gally motivated. The names of the 75 travelers who were
pipefitters by trade and their respective dates of layoff
are set forth in Appendix A of the decision.
(2) The plumbers
The record reveals that, while the basic skills and tools
of a plumber are the same as those of a pipefitter, they
are different trades with different qualifications and usu-
ally plumbers do not do industrial pipefitting or that if
they do it is not generally with the same degree of regu-
larity as a pipefitter by trade." But it does not follow
that all of the plumbers employed as pipefitters on the
project were less competent than Respondent Union's
members to work the unscheduled overtime during the
construction phase or the extensive scheduled overtime
work during the shutdown phase of the project. The evi-
dence with respect to this question and my evaluation of
it follows.
The record shows that plumbers Cangi, Mathieson,
Rabey, Segura, Lindquist, Colby, and Martel employed
on the project had experience working as industrial pipe-
fitters at the time they began work on the project. Mi-
chael Cangi had been doing industrial pipefitting work
for approximately 19 years and had worked on numerous
industrial jobs where he performed all facets of the pipe-
fitter's trade and had worked in the jurisdiction of Re-
spondent Union as a pipefitter on five or six refinery jobs
prior to the Shell Oil project. Paul Mathieson had
worked as a pipefitter for approximately 4 or 5 years
prior to the Shell Oil project and immediately prior to
the project had been employed as a pipefitter for over 14
months on two industrial jobs within Respondent
Union's jurisdiction and his work on the second of these
jobs was apparently so impressive that the general fore-
man made him a foreman. Paul Segura and Joseph
Rabey immediately prior to working on the Shell Oil
30 I recognize that the pipefitters who were Respondent Union mem-
bers who worked on the Shell Oil project were, as a group, more likely
than the traveler pipefitters by trade to have previously worked an oil
refinery shutdown inasmuch as 35 or 40 percent of their work is refinery
work The record does not establish, however, that the shutdown or un-
scheduled overtime work on the project required skills and experience
not possessed by the traveler pipefitters by trade or that they were not
qualified to competently perform the type of work expected of a journey-
man pipefitter dunng the shutdown or unscheduled overtime
" I note that 3 of the General Counsel's 12 plumber witnesses, who
worked as pipefitters on the Shell Oil project, Virgil James, William
Grady, and John Davis, had virtually done no work as pipefitters prior
to their employment on the project
project had been employed as pipefitters for the Bechtel
Construction Company at the San Onofre, California Nu-
clear Power Plant, under the terms of the National Con-
struction Agreement, for substantial periods of time;
Segura for approximately 15 months and Rabey for ap-
proximately 11 months." Segura's work as a pipefitter
was apparently so satisfactory that he was made a fore-
man on the job. Other traveler plumbers who were expe-
rienced pipefitters were Larry Linguist, Cloyd Colby,
and Hector Martel. Immediately prior to his work on the
project Lindquist had worked for approximately 8
months as a pipefitter on refinery jobs within Respond-
ent Union's jurisdiction. Cloyd Colby, who has been a
member of the United Association for 20 years, and is a
member of a combination plumber-pipefitter local, spent
approximately 50 percent of his worktime as a United
Association member working as a journeyman pipefit-
ter 3 ° Hector Martel prior to the Shell Oil project
worked as a pipefitter in the jurisdiction of Respondent
Union for approximately 9 months on a refinery job simi-
lar to the Shell Oil project and by the time of his layoff
had worked within a 3-year period over 3000 hours as a
pipefitter within Respondent Union's jurisdiction.
The statements made by Respondent Employer's fore-
man reveal that Respondent Employer thought that trav-
eler plumbers Pashby, Cangi, Mathieson, Bics, Mayes,
Smith, and O'Bosky were well qualified to do pipefitting
work on the project. Keith Pashby was complimented
about his work by his foreman and one of Respondent
Employer's engineers. Michael Cangie was compliment-
ed about his work and reliability by both his foreman
and general foreman. In fact General Foreman William
Stuart indicated his satisfaction with Cangi's work by
suggesting that Cangi transfer his membership into Re-
spondent Union so that Cangi could work for Stuart
during the shutdown. 34 Also a month before Cangi's
layoff the foreman of the instrumentation crew, Marty
Jewitt, was instrumental in Cangi being transferred to his
crew because of Cangi's qualification as an instrumenta-
tion fitter, which the record shows was a skill which at
that time Respondent Employer badly needed on the
project. Cangi, on starting work on Jewitt's crew, ob-
served that he was more qualified to do this work than
32 Segura and Rabey worked for Bechtel at San Onofre for certain pe-
riods of time under the terms of a maintenance contract, but the record,
G.0 Exh 7, Indicates which periods of time they worked under that
contract and I have not relied on those periods of their employment with
Bechtel in arriving at the above-described figures
33 As I have found supra, in early April 1982 General Foreman Crat-
senburg told Colby that Cratsenburg was going to try to save Colby
from being laid off because in addition to having belonged to the same
local union as Cratsenburg Colby had done a good job on the project
34 The record establishes that at least one of the travelers on the
project transferred his membership into Respondent Union during the
construction phase of the project and as a result worked the shutdown
Thus, traveler Fernando Moore, who was employed as a welder on the
project, testified that during the course of his work on the project he
worked with a couple of excellent traveler pipefitters who assisted him
with his welding, that one of them was Dave Schere, and further testified
that during the course of the construction phase of the project Schere
became a member of Respondent Union Since Schere's name is not
among those listed as having been laid off dunng the layoffs herein, I
presume he was not laid off during the construction phase and worked
the shutdown
M. W. KELLOGG CONSTRUCTORS 1065
two of the other pipefitters who were members of Re-
spondent Union, who had never done the work previous-
ly. On several occasions General Foreman T. J. Cratsen-
burg complimented the work of Paul Mathieson, George
Bios, Gerald Mays, and Gilbert Smith. 35 Also, Bics'
foreman complimented him about his work on several
occasions." And as I have found supra, during April-
May 1982 Cratsenburg indicated' that he regarded Math-
ieson, Bics, Smith, and Mayes as good employees whom
he did not want to lay off.37
Cratsenburg stated that he was going to try to keep
these workers working through the shutdown because
they had been doing a good job and because of this they
did not have to worry about being laid off And when
Cratsenburg told them about their layoffs, he apologized
and explained that it was not his decision but was forced
on him from above. Also in Mayes' case it is undisputed
that Mayes' foreman Bill Springer stated to him that he
did not think laying off the travelers was fair because the
travelers "were doing such a good job for him." And ap-
parently because Mayes had been doing such a good job,
Springer had previously removed Mayes' name from a
layoff list.
Also, with respect to Mathieson's and Bics' competen-
cy as pipefitters on the project, traveler Albert Allen,
who is a pipefitter by trade who worked on the project
as a welder, credibly testified that Mathieson and Bics
worked with him as pipefitters when they were not
working on the rigging crew and that Mathieson's work
as a fitter was "good" and that Bics' work was "very
good." Allen further testified that while one of Respond-
ent Union's members who worked with him as a pipefit-
ter was a "very good man" that another one by the
name of Williams had no idea of what to do and Allen
had to give him repeated instructions. Lastly, with re-
spect to Reginald O'Bosky, it is undisputed that
O'Bosky's foreman and general foreman complimented
him about his work and that before he was laid off Gen-
eral Foreman Johnston asked O'Bosky and Cangi if they
would work the shutdown for him as he was going to
work a crew at night during the shutdown, thus indicat-
ing that Johnston regarded both O'Bosky and Cangi as
competent to work the shutdown And when Foreman
Young informed O'Bosky that he was laid off, Young in-
dicated that he was unhappy with having to lay off
O'Bosky because he wanted to keep him on his crew to
work the next job. Previously on March 22, 1982, Gen-
eral Foreman Stuart and Foreman Breiter plus two other
pipefitters who were members of Respondent Union
signed a statement on O'Bosky's behalf that they had
worked with him on the project for over 5 months and
"find him reliable, qualified as a sleamfitter" and "feel he
would be a benefit to the trade as a steamfitter."
Respondent called six witnesses to testify about the
competency of the plumbers employed on the Shell Oil
35 Based on the undemed testimony of Matlueson, Mayes, and Bics
who impressed me as credible and reliable witnesses
36 Based on the undemed testimony of Bics who impressed me as an
honest witness
37 I note that Gilbert Smith at the time of his layoff on May 14, 1982,
had worked over 3000 hours as a pmefitter within the Jurisdiction of Re-
spondent Union within a 3-year period
project: Head General Foreman William Goldie; General
Foremen T. J. Cratsenburg and William Stuart; and
Foremen Al Thuotte, Wayne Shouse, and Martin Barnes.
Their testimony, in pertinent part, is set forth hereinafter.
Head General Foreman Goldie testified that he ob-
served that many of the travelers seemed unfamiliar with
the work they were doing. When asked to point to spe-
cific examples of what he observed, Goldie was unable
to do so. He testified, "I cannot give you too many [ex-
amples] right now. I've seen a lot of stuff that tells you
the man is not familiar with the work." The closest to
any degree of specificity that GoIdle came was when he
testified, "I've seen people rigging up things which is
very unsafe." When he gave this testimony Goldie did
not impress me as a sincere witness. His testimonial de-
meanor was poor I also note that Goldie gave contra-
dictory testimony to the National Labor Relations Board
on a highly significant matter. During the investigatory
stages of this proceeding Goldie submitted a sworn affi-
davit to the Board in which he stated that in selecting
pipefitters to work overtime and for layoff on the Shell
Oil project that Respondent Employer did not consider
the pipefitters' status as travelers or members of Re-
spondent Union, rather the selection was based on merit.
During the hearing, however, Goldie flatly contradicted
this testimony, now testifying that the status of the pipe-
fitters as travelers and as members of Respondent Union
was taken into account in selecting pipefitters for layoff
and for overtime These inconsistencies in Goldie's testi-
mony, plus his poor testimonial demeanor, left me with
the impression that Goldie was not a sincere witness, but
was tailoring his testimony to fit whatever he thought
would help Respondent's case. This plus the ambiguity in
Goldie's testimony has led me to reject Goldie's above-
described testimony regarding the competency of the
travelers employed on the Shell Oil project.
Foreman Thuotte testified that the three plumbers em-
ployed in his crew, Datz, Grady, and Locke, were will-
ing workers, but lacked prior pipefitting experience be-
cause he was forced to give them the same amount of
supervision that he would have given an apprentice pipe-
fitter. 'Thuotte further testified that there was another
traveler on his crew whom he identified as "Vince,"
who worked as a welder and who was as qualified as the
members of Respondent Union that worked on Thuotte's
crew.
Foreman Barnes testified that plumber John Davis,
who was employed in Barnes' crew and who, as I have
found supra, had virtually no prior pipefitter experience,
did not have the skills of a journeyman pipefitter and be-
cause of this Barnes could not assign him the usual scope
of work performed by a journeyman pipefitter. Barnes
also testified that the other plumbers employed as fitters
on his crew in general had to be closely supervised be-
cause of their lack of experience, but that there were
some plumbers in his crew who were competent pipefit-
ters. Barnes further testified that most of the plumbers
whom he observed on the project were not as competent
as the members of Respondent Union employed on the
project, but while the plumbers as a group were not as
competent as Respondent Union's members there were
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some plumbers who were just as good and perhaps even
more competent than certain members of Respondent
Union.
General Foreman Stuart's crews were comprised of
mostly travelers, most of whom were plumbers by trade.
Stuart testified that while some of these travelers "ap-
proached being as good" as the members of Respondent
Union the vast majority was not nearly as competent as
the members of Respondent Union employed on the
project, 38 and because of this he was forced to assign
them the type of work that they were used to doing as
plumbers, i.e., screwing pipes and doing the rigging
work, and since the plumbers did not know much about
heavy rigging that he closely supervised their rigging
work.
General Foreman Cratsenburg testified concerning the
competency of plumbers Judd, Colby, Lindquist, Mayes,
Mathieson, Smith, and Bics. Regarding Judd and Colby
he testified he received complaints from the welders for
whom they were doing fitting work that they did not
know how to do their job. Regarding Lindquist he testi-
fied that Lindquist's foreman and fellow employees com-
plained to him that Lindquist was standing around a lot
instead of working and that Cratsenburg had several
talks with Lindquist's foreman to try to get Lindquist to
work. Regarding Mayes he testified that Mayes was
afraid of working up high and asked Cratsenburg to
assign him to a job close to the ground. Regarding Math-
ieson, Smith, and Bics he testified that they were willing
workers and that he received no complaints about their
work, but that their foreman had to train them and close-
ly supervise their work on the rigging crew because of
their inexperience. Lastly, when asked whether there
were any specific problems to which he could refer re-
flecting the difficulties that he had with the travelers in
terms of their competence or ability, that he did not have
with the local hands, Cratsenburg was able to point to
only one episode. In this regard he testified that while
laying out a sewer line Bics, Mathieson, and Smith were
in the process of hacksawing into an electrical line and
that Cratsenburg stopped them from doing this only after
their foreman Wayne Shouse informed Cratsenburg what
they were doing.
I reject Cratsenburg's above-described testimony in its
entirety for these reasons Cratsenburg's testimonial de-
meanor, as I have found supra, was that of an insincere
witness who seemed intent on slanting his testimony so
38 I am convinced that when Stuart testified that the work of some of
the travelers whose work he was familiar with "approached being as
good" as the work of the "local hands" that he was not being truthful
and that in fact there were some, albeit very few plumbers, who worked
under his supervision whose competency equaled that of the local hands
under his supervison. Thus when Stuart gave this testimony I received
the impression from his testimonial demeanor that he was not being per-
fectly candid in his assessment of the travelers' competency This impres-
sion is reinforced by the undisputed testimony of plumber Michael Camp,
set forth supra, that on several occasions Stuart indicated his satisfaction
with Cangi's work by suggesting that Cangi transfer his membership into
Respondent Union so that Cangi could work for Stuart during the shut-
down phase of the project Also it is undisputed, as described in detail
supra, that on March 22, 1982, Stuart signed a statement on behalf of
plumber Reginald O'Bosky that he had worked with O'Bosky on the
project for over 5 months and "find him reliable and qualified as a steam-
fitter" and "feel he would be a benefit to the trade as a steamfitter "
that it would be favorable to Respondents in disregard of
the truth. The following additional factors further
impugn his testimony. It is undisputed that Colby, who
Cratsenburg supposedly was informed was not a compe-
tent pipefitter, was told by Cratsenburg that he was
trying to prevent Colby from being selected for layoff
because Colby had done a good job for Cratsenburg. It
is undisputed that Lindquist received no complaints or
disciplinary warnings from supervision despite Cratsen-
burg's allegation that he was a constant subject of com-
plaints for not working and that Cratsenburg on several
occasions supposedly spoke to Lindquist's foreman in an
effort to get him to do some work. Mayes credibly testi-
fied that he was not afraid to work up high and that
prior to the Shell Oil project he had done this type of
work and was comfortable doing it. It is undisputed that
during the April-May 1982 layoffs, as I have found
supra, Cratsenburg stated that he was going to try to
keep Mathieson, Bics, Smith, and Mayes to work the
shutdown phase of the project because they had been
doing a good job and that when he laid them off he
apologized saying that his decision to lay them off had
been forced on him from above. This hardly jibes with
his above-described comments concerning their work.
And finally Mathieson and Bics, who impressed me de-
meanorwise as sincere witnesses, specifically denied en-
gaging in the conduct concerning the cutting of the elec-
trical line attributed to them by Cratsenburg. Also
Wayne Shouse, their foreman, who was a witness for
Respondent Employer, failed to corroborate Cratsen-
burg's account of this incident. It is for all of the forego-
ing reasons that I have rejected Cratsenburg's testimony
m its entirety.
It is undisputed that plumbers Mathieson, Bics, and
Smith prior to the Shell Oil project had an insignificant
amount of experience doing heavy rigging work of the
sort being done on the project. On the project they
worked in large part on Foreman Wayne Shouse's rig-
ging crew and they also did other pipefitting work for
Shouse and on other crews. Shouse testified that, due to
the inexperience of Mathieson, Bics, and Smith, he had
to teach them how to do the rigging work, and that ini-
tially he supervised them very closely and even toward
the end of their tenure gave them close supervision on
several heavy lifts which were "very, very complicated."
He further testified that not one of these three plumbers
knew the system of hand signals used to do the rigging
work and that Shouse had to teach them the signals used
to do the ngging work and had to correct them over and
over until they got the signals right. Mathieson and Bics
testified in effect that despite their inexperience that
Shouse did not have to teach them how to do their jobs
as riggers or teach them the proper hand signals to use.
In regard to the hand signals it is undisputed that these
signals are printed clearly on the outside of the cranes
used in the rigging operation. Mathieson testified that
during the period of several months that he worked on
the rigging crew on only approximately five occasions
did Shouse have to explain to the crew how to do their
job, but would usually stand and watch them work.
Mathieson and Bics impressed me demeanorwise as cred-
M. W KELLOGG CONSTRUCTORS 1067
ible witnesses, Shouse did not. Accordingly I have re-
jected his testimony. I also note that it is hardly likely
that General Foreman Cratsenburg, Shouse's supervisor,
would have indicated that he wanted Mathieson, Bics,
and Smith to remain on the project for the shutdown
phase of the project if in fact they were as incompetent
on the rigging crew as described by Shouse. In addition,
it is undisputed that Mathieson, Bics, and Smith were
complimented by either Cratsenburg or Foreman Shouse
about their work.
Based on the foregoing I am of th „. opinion that as a
class the plumbers by trade employed on the Shell Oil
project as pipefitters were not as competent as the pipe-
fitters by trade employed on the project, but that of the
55 plumbers laid off during the time material the record
establishes that 12 of them were as competent in their
work as pipefitters on the project as the pipefitters by
trade. The 12 were: Hector Martel, Michael Cangi, Paul
Mathieson, Paul Segura, Joseph Rabey, Gerald Mayes,
George Bics, Gilbert Smith, Larry Lindquist, Reginald
O'Bosky, Cloyd Colby, and Keith Pashby. 39 The con-
clusion that the record shows that their work as pipefit-
ters on the project was as competent as the work per-
formed by the class of workers who were pipefitters by
trade is based on one or a combi nation of the factors de-
scribed above: work experience as a pipefitter; and/or
the statements by supervision; and/or the observation of
pipefitter by trade Allen about the work of two of them.
In concluding that there is insufficient evidence to es-
tablish that as a group the laid-off travelers who were
pipefitters by trade were less competent than members of
Respondent Union who were not laid off and in also
concluding that there was more than a de minims
number of laid-off traveler plumbers who were just as
competent as members of Respondent Union who were
not laid off, I have taken into consideration the testimo-
ny of Respondent Employer's witnesses who testified in
effect that the shutdown phase of the project which was
staffed completely by members of Respondent Union
went much better than the construction phase. To the
extent that the layoffs resulted in the removal of the
plumbers who are not experienced pipefitters and their
replacement by experienced pipefitters I am sure that it
resulted in greater productivity during the shutdown
than if these plumbers had been retained. However, the
degree of this increase in productivity is open to serious
question. Other than the conclusionary and self-serving
testimony of Respondent Employer's construction super-
intendent Bertrand, Head General Foreman Goldie, and
General Foremen Cratsenburg and Stuart, Respondents
offered no concrete evidence that demonstrates the
extent of the improvement of the productivity during the
shutdown phase in comparison to the construction phase.
Head General Foreman Goldie testified that the shut-
down went much better and faster with less problems
than the construction phase. Construction Superintendent
Bertrand, Respondent Employer's principal management
3 9 The complaint specifically names each of these 12 travelers and the
respective dates of their layoff and alleges that each of the layoffs was
Illegally motivated The names of these 12 travelers with their respective
dates of layoff have been set forth in App B of the decision
official on the project, simply testified that the shutdown
went much better than the construction phase. General
Foreman Cratsenburg testified that the workers per-
formed far more work during the shutdown than during
the construction phase. General Foreman Stuart testified
that the quality of the work force was much better
during the shutdown. No concrete evidence was intro-
duced to indicate by how much the productivity im-
proved. All the record reveals is that the shutdown
phase was scheduled to last approximately 6 weeks with
a certain number of pipefitters and that it in fact finished
on time using that amount of pipefitters. There is no evi-
dence that the construction phase did not finish on time
with the allotted number of workers or that the unsched-
uled overtime worked during the construction phase was
unusual for a project of this kind. In short, while I am
sure that the replacement of the plumbers who were in-
experienced pipefitters by the more experienced pipefit-
ters who were members of Respondent Union resulted in
an increase in productivity, I am not persuaded that the
record establishes that the increase was substantial or sig-
nificant.
j. The alleged industry practice of granting preferential
treatment in overtime and layoff selection to local
United Association members over Travelers
(1) The evidence
Respondents contend that there is an industry practice
of granting preferential treatment in overtime and layoff
selection to local members of the United Association
over travelers. I shall discuss and evaluate the evidence
pertinent to this contention. However, before doing this
I note that I have not considered the testimony on this
subject given by either William Goldie or T. J. Cratsen-
burg, both of whom impressed me as being dishonest and
unreliable witnesses to such an extent that it was not pos-
sible for me to tell when they were and when they were
not distorting their testimony so as to favor Respondents.
Goldie, who was Respondent Employer's head fore-
man on the Shell Oil project and is a member of Re-
spondent Union, testified that, during the 32 years he has
worked in the industry, a preference has been given to
local members of the United Association over travelers
in the assignment of unscheduled overtime. When ques-
tioned by Respondent Employer's counsel about the al-
leged industry practice, not only was Goldie's testimoni-
al demeanor poor but his manner of testifying reinforced
my impression that he was not a reliable witness. His ini-
tial testimony on this subject was not responsive to the
question and, when the question was repeated, Goldie
was still unable to answer it and remained silent for a
long period of time. He explained his silence in these
terms: "I'm thinking . . . I do not want to say the wrong
thing.” It was my impression that this was not the obser-
vation of a conscientious witness who was hesitating in
order to be sure that his testimony was accurate and reli-
able Rather Goldie's demeanor was that of a witness
intent on making sure that his testimony was favorable to
Respondents even if it meant distorting the facts. Also,
the reliability of any testimony given by Goldie on the
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject of an alleged industry practice of preferring the
local members over travelers is highly suspect due to the
fact that Goldie gave sharply contradictory testimony to
the Board, as I have described supra, on the closely re-
lated subject of the way Respondent Employer handled
the overtime and layoff selection on the Shell Oil
project. It is for all of these reasons that I have conclud-
ed that Goldie is an unreliable witness and because of
this I have not considered his testimony.
The demeanor of T. J. Cratsenburg, a member of Re-
spondent Union and a general foreman of Respondent
Employer on the project, was poor Also as I have
found supra, he gave false testimony on the following
significant matters: the failure of Respondent Employer
to select traveler Paul Foster for layoff; the competency
of certain travelers who worked on crews under his su-
pervision; and his contention that three of these travelers
created a possible safety hazard when they supposedly
almost hacksawed an electrical line In addition, the reli-
ability of any testimony presented by Cratsenburg on the
subject of an alleged industry practice of preferring local
members over travelers is highly suspect due to the fact
Cratsenburg gave sharply contradicting testimony to the
Board, as I have described supra, on the closely related
subject of the way Respondent Employer handled the
layoff selection on the Shell Oil project. It is for all of
these reasons that I have concluded that Cratsenburg is
an unreliable witness and because of this I have not con-
sidered his testimony.
Gilbert Smith, a traveler on the Shell Oil project, who
was a plumber by trade and who has been a member of
the United Association for over 20 years, testified that
"it is in the Plumber's Union unwritten law that when a
job is finished the travelers will get laid off first." Smith,
to illustrate the application of this law, further testified
that when members of Respondent Union worked as
travelers on a job in the jurisdiction of Smith's local
union and a job started to "wind down," the members of
Respondent Union were laid off first before the members
of Smith's local union. There is no evidence concerning
the number of times Smith during his career has worked
as a traveler in the pipefitting industry.
Cloyd Colby, a traveler on the Shell Oil project who
has been a member of the United Association for ap-
proximately 20 years, testified, "[lit is common practice
by the Union not to let travelers work overtime [on re-
finery jobs]. When plant shutdowns in the refinery busi-
ness occur, it is common practice by the plumbing and
pipefittmg union to give the overtime to the local union
members and to lay off the travelers first where there is
a reduction in force." There is no indication of the
number of refinery jobs worked by Colby as a pipefitter,
other than the Shell Oil project. Colby testified that his
aforesaid testimony was based on what he was told by
other members of his local union and by members of Re-
spondent Union and not on his personal experience.
Colby also testified that on the nonrefinery industrial
pipefitting jobs that he has worked, as the job nears its
completion layoffs are based on merit with the better
workers being retained regardless of their status as a
traveler There is no evidence as to the extensiveness of
Colby's work as a traveler on industrial pipefittmg jobs
other than an indication that he worked once in Seattle,
Washington
Michael Cangi, a traveler on the Shell Oil project,
who is a plumber by trade and a member of the United
Association for approximately 23 years, testified that "it's
standard procedure" that "local members usually get
preference" for overtime work because "that's just the
way we work it," but where there is full employment the
travelers are assigned overtime and "there is usually no
stink raised because everybody's getting a piece of the
action." And with respect to layoffs Cangi testified that
there is an unwritten code or law among the members of
the United Association that when there are local United
Association members out of work in the area of a project
which is neanng completion that the travelers on the
project voluntarily quit so that the local workers will
have the work. In this respect he testified:
[I]t's the same as if you come to a job and they
have a picket line there, you don't call the business
manager and ask if you can cross it. You know you
are not supposed to work behind the picket line. A
good union man doesn't. So that's a code; you just
don't do it. It's an unwritten law. The same with if
a job is winding down, there is no more work in the
area, they give you the opportunity, let you know.
They let you know that the work is winding down
and they would appreciate it if you sought work
elsewhere. But you don't have to quit. They give
you that choice. That is the way I have worked it
for 23 years.
But if there is ample work for both the local members
and the travelers, Cangi testified that he remains on the
project until its completion even though he is a traveler.
The record establishes that Cangi has worked as a travel-
er on several occasions as a pipefitter in the jurisdiction
of the Respondent Union and has also worked as a trav-
eler in the pipefitting industry at various times in Seattle,
Washington, Fairbanks, Alaska, New London, Connecti-
cut, San Diego, California, and San Luis Obispo, Califor-
nia.
Martin Barnes Jr, a pipefitter by trade and a member
of Respondent Union, was a foreman on the Shell Oil
project. He has only worked as a traveler in the pipefit-
ling industry within the State of California and there is
no evidence of the number of jobs that he has worked as
a traveler. He testified that "if there is going to be lay-
offs . . they lay off the travelers before they lay off
local people" and that when Barnes worked as a traveler
that he was laid off before the local members on the job,
even though Barnes was a more competent worker than
the local members. In fact, Barnes testified that he will
quit a job on which he is working as a traveler in order
to prevent a local member from being laid off ahead of
him, explaining, "so I can go back to that local and work
anytime I want without any hassles." This is true even
when Barnes works within the geographical jurisdiction
of the United Association local which has the pipefitting
M. W. KELLOGG CONSTRUCTORS 1069
jurisdiction covering the geographical area in which
Barnes lives.40
Richard Slawson, Respondent Union's business manag-
er, who is a journeyman pipefitter by trade, testified that
the criteria used generally in the pipefitting industry
throughout the United States to allocate unscheduled
overtime and to select workers for layoff is as follows:
Normally if there is a small amount of overtime in a
particular area on a job site [and if the] job site con-
sisted of just members from the area, they would
probably try to spread it around a little bit so that
the members do not become disgruntled. But if
there was a mix on the job site of people from out-
side the area that the foremen were unfamiliar with,
travelers in the instance of overtime, it would be
that the local people would be given the overtime,
and in the instance of layoff, the local people who
the foremen are familiar with would remain on the
job.
Slawson further testified that his familiarity with these
criteria is based on his "experience on job sites" and his
conversations as an official of Respondent Union with
members of that Union and with officials from other
United Association local affiliates. There is no indication
in the record as to the number of jobs or their locations
on which Slawson worked as a traveler.
Richard Wareham, a journeyman pipefitter, who was
Respondent Union's job steward on the Shell Oil project,
testified that he has experience working on crews which
employed a mix of travelers and local union members,
and that his experience has been that the criteria used for
selecting persons for layoff on such crews was that the
travelers were laid off first and local union members last
and that he knew of no case where this procedure was
not followed. Regarding the allocation of unscheduled
overtime where mixed crews of travelers and local union
members were employed, Wareham testified that there is
no policy that travelers do not receive the unscheduled
overtime, but that in fact they usually do not receive un-
scheduled overtime because the crew foreman almost
always gives preference to the local union members over
the travelers in the assignment of such overtime. There is
no evidence of the number of jobs or their locations
where Wareham has worked as a traveler.
William Stuart, a pipefitter by trade and a member of
Respondent Union, was a general foreman for Respond-
• ent Employer on the Shell Oil project. He testified that
he was familiar with a practice and custom in the pipefit-
ting industry pertaining to layoffs and the allocation of
overtime. He described this practice and custom as fol-
lows. "Local Hands get preference." Stuart admitted that
until 1983 he had never previously worked as a traveler,
but that his aforesaid testimony was based on what he
had been told by various pipefitters who were members
of his family or otherwise related to him.
Wayne Shouse, a journeyman pipefitter and a member
of Respondent Union, was a foreman on the Shell Oil
40 Barnes, although a member of Respondent Union, does not live
within its geographical jurisdiction.
project. Shouse has worked as a traveler in these loca-
tions: Anchorage, Alaska, San Diego, California, and San
Luis Obispo, California. He testified that on those jobs it
was the practice to lay off travelers first. More specifi-
cally he testified, "[T]hey gradually lay off, lay off, lay
off and the travelers are always the first ones they lay
off" and that pursuant to this practice Shouse was laid
off ahead of local members even though in some in-
stances he had substantially more experience than the
local members retained. Shouse also testified that the
practice in the pipefitting industry regarding unscheduled
overtime was "where there is [unscheduled] overtime
. . . normally, the local people will work and travelers
will not get that overtime."
Al Thuotte, a journeyman pipefitter and a member of
Respondent Union, was a foreman for Respondent Em-
ployer on the Shell Oil project. Thuotte has had de mini-
mis experience working as a traveler, but testified that
based on what his uncle, a retired United Association
member, has told him, it was his understanding that it
was common practice for travelers to be laid off before
local hands.
Ned Bertrand, Respondent Employer's construction
superintendent on the Shell Oil project, testified that the
practice and custom in the pipefitting industry "has
always been that when it comes down to layoffs, all the
travelers will go first and the local people will be last"
and further testified that with respect to the assignment
of unscheduled overtime "it's been a custom that they
use local people to do the work." Regarding Bertrand's
qualifications to give his testimony, the record reveals
that for virtually his entire life he has worked for one
employer, Respondent Employer, in both the United
States and other countries. All total he has worked for
approximately 20 years for Respondent Employer on
projects located in the United States in the States of
California, Virginia, Iowa, Texas, Kansas, Ohio, and
Louisiana. For the past 20 years his position has been
that of at least pipefitting superintendent or higher. How-
ever, for the 10-year period preceding the Shell Oil
project Bertrand had nothing whatsoever to do with the
selection of workers for layoff or the selection of work-
ers to work unscheduled overtime, inasmuch as these
matters are left entirety to the discretion of the general
foreman and foreman on the job. In fact Bertrand was
not even informed during this 10-year period as to the
basis for the selection of personnel for layoff or over-
time.
(2) Conclusions
I am of the opinion that the testimony of the several
witnesses set forth immediately above, whether consid-
ered separately or in its totality, is insufficient to estab-
lish that there is a longstanding practice in the pipefitting
industry of the United States" whereby the members of
the local unions affiliated with the United Association, in
whose geographical jurisdiction a job is being performed,
41 The governing collective-bargaining agreement, the National Con-
struction Agreement, encompasses a nationwide mutliemployer bargain-
ing unit.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receive preferential treatment over travelers in overtime
and layoff selection. I have reached this conclusion be-
cause of the following considerations.
The testimony of Colby, Thuotte, and Stuart concern-
ing the alleged past practice is based solely on hearsay,
what others told them, not on their own work experi-
ence in the industry. There is no evidence that either
Smith, Wareham, or Shouse has the necessary work ex-
perience as a traveler to give competent testimony about
any longstanding practice in the industry. 42 Barnes has
worked as a traveler only within the State of California
and no evidence was presented as to whether he worked
as a traveler on more than a de minirnis number of occa-
sions. Bertrand worked for only one employer, Respond-
ent Employer, and testified in effect that for the past 10
years he has had no knowledge about how Respondent
Employer has been selecting its pipefitters for layoff or
for unscheduled overtime. Slawson's testimony was
based primarily on hearsay, the statements of officials
from other United Association local affiliates and mem-
bers of Respondent Union who worked as travelers. I
have taken into account that Slawson testified that his
testimony about the industry practice was based in part
on his "experience on job sites." However, this portion
of his testimony lacks specificity; no effort was made to
iitit some flesh and blood on this conclusionary and am-
biguous statement. Regarding Cangi's testimony, al-
though he has substantial experience working as a travel-
er in the pipefitting industry and has worked in that ca-
pacity in several different States, I am not persuaded that
the testimony of one traveler about his experiences as a
traveler in the industry is by itself sufficient to meet the
burden of proof required of Respondent Employer to es-
tablish the existence of a longstanding industry practice.
And since there has been no showing that the other wit-
nesses who testified about the alleged practice were com-
petent to testify about this subject, their testimony, when
coupled with Cangi's, is insufficient to warrant a finding
that Respondent Employer has proven the existence of a
longstanding practice in the pipefitting industry of the
United States whereby employers grant preferential
treatment to local members of the United Association
over travelers in the assignment of unscheduled overtime
work and layoff selection.
Even assuming that I have erred, and the record does
not establish a practice in the pipefitting industry of the
United States whereby employers discriminate against
travelers in favor of local members with respect to over-
time work assignments and layoff selection, the record
lacks sufficient evidence to establish either the reason for
the practice or under what circumstances the practice is
invoked by employers, or whether it is invoked without
limitation. Traveler Cangi testified that, in his opinion,
the practice applied only where there was a shortage of
work for pipefitters in the geographical jurisdiction of
the local union where the job was being performed. But
none of the other witnesses, whose testimony is set forth
42 Smith and Wareham did not testify about their work experience as
travelers and the record does not otherwise reveal that they were compe-
tent to testify about a longstanding industry practice. Shouse testified that
he had worked as a traveler in Anchorage, Alaska, and San Diego and
San Luis Obispo, California.
above, placed such a limitation on the practice, but
simply testified that the practice was that in making
overtime assignments and in selecting workers for layoff
local members were given preferential treatment over
travelers. They gave no explanation for the reason for
the alleged practice nor did any other witness specifical-
ly testify about what motivated the employers in the in-
dustry to institute the alleged practice of discriminating
against travelers in favor of local union members. Thus,
even if the alleged longstanding industry practice exists,
there is a lack of evidence to warrant a conclusion that it
is based on a legitimate business consideration rather
than simply on considerations of union membership.
Also, assuming that Respondents have proven that
there is a longstanding practice in the pipefitting industry
of the United States whereby members of the United As-
sociation local unions are granted preferential treatment
over travelers, with respect to the assignment of un-
scheduled overtime work and the selection of workers
for layoff, I reject Respondents' further contention that
this practice created enforceable contractual rights for
Respondent Union's members who were employed on
the Shell Oil project. As I have indicated supra, the term
and conditions of employment of the pipefitters em-
ployed on the project were governed by the National
Construction Agreement and to the extent that its terms
were not inconsistent with the terms of the Local Agree-
ment by that agreement. Both agreements are silent
about the assignment of unscheduled overtime and the
selection of workers for layoff. I recognize that in this
situation, in certain cases, a longstanding practice in an _
industry whereby local union members are favored over
travelers in certain aspects of the employment relation-
ship would create enforceable contractual rights for the
local members. However, this is not such a case because
the governing collective-bargaining agreement specifical-
ly states that the parties have agreed that practices will
not create contractual rights. Thus, subsection "E" of ar-
ticle VIII of the National Construction Agreement states,
"[P]ractices not a part of terms and conditions of collec-
tive bargaining agreements will not be recognized."
The courts have long recognized that collective-bar-
gaining agreements are not ordinary contracts and
should not be construed strictly in accordance with ordi-
nary contract law principles. Transportation Union v.
Union Pacific Railroad Co., 385 U.S. 157, 160-161 (1966).
The courts have also recognized, however, that a collec-
tive-bargaining agreement should be construed in accord-
ance with a number of well-defined common sense prin-
ciples, one of which is that, when an agreement contains
provisions which are clear on their face, the provisions
should be construed in accordance with "their plain and
literal meaning." NLRB v. South Central Bell Telephone
Co., 688 F.2d 345, 353 (5th Cir. 1982). Accord: Kaufman
& Broad Home Systems v. Firemen, 607 F.2d 1104, 1109
(5th Cir. 1979). Here the governing collective-bargaining
agreement unambiguously provides that practices which
are not a part of the terms and conditions of the written
agreement will not be recognized. I, therefore, am of the
opinion that, even if there is a longstanding industrywide
practice in the United States favoring local members
M W KELLOGG CONSTRUCTORS 1071
over travelers in the assignment of unscheduled overtime
work and in the selection for layoff, in view of subsec-
tion "E" of article VIII of the governing collective-bar-
gaining agreement, the practice did not create any con-
tractual rights for Respondent Union's members em-
ployed on the project. In so concluding, I have over-
ruled the General Counsel's objection and have carefully
considered the testimony given by Respondent Employ-
er's expert witness, Arbitrator Melvin Lennard. Neither
Arbitrator Lennard nor Respondents have advanced any
reason why I should ignore subsection "E" of article
VIII in determinining whether the disputed past practice
has created enforceable contractual rights. See McGraw-
Edison Power Systems Division, 53 Lab. Arb. 1024 (BNA
LA) (1969) (Lewis, Arb.) (Under a con tract stating that
"unless specifically so provided in this contract to the
contary, past practice shall not be binding on either
party," the employer has the right to promulgate a rule
banning the use of transistor radios in the plant, even
though employees have been allowed to use such radios
at work for 20 years)
2. Discussion and conclusionary findings43
a. Respondent Employer's discrimination against the
travelers in favor of Respondent Union's members
Section 8(a)(3) of the Act makes it an unfair labor
practice for an employer "by discrimination in regard to
. . tenure of employment or any term or condition of
employment to encourage . . . membership in any labor
organization." It is settled that "the policy of the Act is
to insulate employees' jobs from their organizational
rights"—that is, to ensure that employees may "join
unions, be good, bad, or indifferent members, or abstain
from joining any union without impairing their liveli-
hood." Radio Officers v. NLRB 347 U.S. 17, 40 (1954).
Accordingly, Section 8(a)(3) and (1) prohibits an em-
ployer from laying off employees or otherwise adversely
affecting their terms or conditions of employment be-
cause of their union status.
In those cases, such as this, where the Board's General
Counsel issues a complaint alleging that an employer is
discriminating against employees because of their union
membership, the General Counsel has the burden of
proving by a preponderance of the evidence that the em-
48 The original unfair labor practice charges which were filed June 10,
1982, pertain solely to Respondents' alleged discriminatory treatment of
13 named employees The additional 140-plus alleged discnminatees
named in the complaint were added to the charges, by virtue of an
amendment, only after the expiration of the limitations period embodied
in Sec 10(b) of the Act In view of this Respondents contend that Sec
10(b) of the Act bars litigation with respect to all but the 13 alleged chs-
cnminatees named in the original charges I disagi ee Even absent the
amended charges Sec 10(b) did not preclude the Board's General Coun-
sel from expanding the class of alleged discnnunatees named in the com-
plaint from the 13 named in the original charges to the over 140 named
in the complaint This is so because the additional allegations are inextri-
cably mtertwined with the original allegations and constitute the same
class of violations as those set out in the initial charges NLRB v Jack La
Lanne Management Corp, 529 F 2d 292 12d Cir 1976) See also Eastern
Marne Medical Center v NLRB, 658 F 2d 1, 6 (1st Cir 1981) (The Board
is not prohibited "from adding to its complaint related matters not al-
leged in the charge which it uncovers during the course of investiga-
tion ")
ployees' protected conduct was a motivating factor in
the employer's action which adversely affected the em-
ployees' terms and conditions or tenure of employment.
If the General Counsel meets this burden, the employer
can avoid being held guilty of violating Section 8(a)(1)
and (3) of the Act by proving by a preponderance of the
evidence that there was a legitimate business justification
for its adverse action and that the employees would have
been the subject of the adverse action irrespective of
their protected conduct. See NLRB v. Transportation
Management Corp., 462 U.S 393 (1983), where the Su-
preme Court approved the Board's Wright Line test.
(Wright Line, 251 NLRB 1083 (1980).)
The complaint alleges that Respondent Employer vio-
lated Section 8(a)(1) and (3) of the Act by assigning
overtime work to members of Respondent Union in pref-
erence to nonmember travelers, thereby causing 157
named travelers to receive less overtime work during the
period from March 1 through May 30, 1982; and by se-
lecting for layoff 130 named travelers from April 7
through May 19, 1982, because they were not members
of Respondent Union. I am of the opinion that the Gen-
eral Counsel has made a prima facie showing of a viola-
tion by providing by a preponderance of the evidence
that a motivating factor in Respondent Employer's deci-
sion to lay off each of the alleged discriminatees was
their nonmembership in Respondent Union and in order
to give preference to members of Respondent Union and
I am also of the opinion that the General Counsel has
likewise proven by a preponderance of the evidence that
the identical motivating factor caused Respondent Em-
ployer to discriminate against the travelers employed be-
tween March 1 and May 30, 1982, in the assignment of
overtime. My reasons for arriving at this conclusion are
as follows.
(1) In selecting workers for overtime work and layoff
from among the work force of travelers and members of
Respondent Union, the grossly disproportionate number
of travelers selected for layoff and the grossly dispropor-
tionate number of Respondent Union's members assigned
overtime work are persuasive evidence of discriminatory
motivation. NLRB v. Townsend & Bottum, 722 F.2d 297
(6th Cir. 1983), Daugherty Co., 147 NLRB 1295, 1299
(1964) As the court in NLRB v. Chicago Steel Foundry,
142 F.2d 306, 308 (7th Cir. 1944), stated:
To be sure, percentage evidence, standing alone,
will not support or sustain an order based on Sec-
tion 8(a)(3) of the Act. . . But the disproportion-
ate treatment of union and nonunion workers may
be very persuasive evidence of discrimination . .
and may create an inference of discrimination leav-
ing it to an employer to give an adequate explana-
tion of the discharge or layoff.
Also see Teamsters v. United States, 431 U.S. 324, 339-
340 (1977). During the months of March through May
1982 of the approximately 3678 hours of overtime
worked by the pipefitters employed on the project, 3566
hours or approximately 97 percent was worked by mem-
bers of Respondent Union and only 112 hours or ap-
proximately 3 percent was worked by travelers. When
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the total number of travelers and Respondent Union
members employed on the project during this period is
compared with these percentages, it is plain, even when
it is taken into account that the aforesaid figures include
the pipefitters who were employed as foremen, that the
travelers were assigned only a de minimis amount of the
overtime work and that members of Respondent Union
were assigned an amount of overtime which was so dis-
proportionate to their numbers that common sense and
the laws of mathematical probability indicate that the de
mimmis amount of overtime assigned to the travelers and
the disproportionate amount assigned to Respondent
Union members was not the product of chance but of a
conscious intent to discriminate. Likewise, an examina-
tion of the figures pertinent to the layoffs reveals a simi-
lar intent to discriminate against the travelers in favor of
Respondent Union's members. Thus, on April 5, 1982,
the total number of pipefitters employed on the project,
including foremen, totaled 378, of whom 140 or 37 per-
cent were travelers and 238 or 63 percent were members
of Respondent Union. During the period from the week
ending April 9 through the week ending May 21, 1982, a
total of 180 pipefitters were laid off, of whom 132 or 73
percent were travelers and 48 or 27 percent were mem-
bers of Respondent Union. By May 24, 1982, at the com-
pletion of this series of layoffs only one of the pipefitters
remaining on the project was a traveler. This was Paul
Foster who Respondent Employer, as I have found
supra, did not lay off because it mistakenly thought that
he was a member of Respondent Union. And during the
latter part of May 1982, in anticipation of the shutdown
phase of the project and during the shutdown phase
itself, Respondent Employer hired approximately 200
pipefitters to work on the project. None of them were
travelers; all were members of Respondent Union The
aforesaid statistics demonstrate that the gradual layoffs of
the travelers over a period of 6 weeks until they were
eliminated from the project was not the product of
chance but a conscious determination on the part of Re-
spondent Employer to discriminate against the travelers
in favor of Respondent Union members when selecting
workers for layoff or, in other words, in selecting those
who would work the shutdown phase of the project
with the accompanying substantial scheduled overtime.
(2) The statements of Respondent Employer's foremen,
the persons who selected the pipefitters for overtime
work and layoff, that the travelers could not be assigned
overtime work and would be laid off from work prior to
the shutdown phase of the project because they were not
'members of Respondent Union constitute "an outright
confession of unlawful discrimination." NLRB v. Fergu-
son, 257 F.2d 88, 90 (5th Cir. 1958). As described in
detail supra, when travelers inquired why they were not
receiving overtime they were told by Foremen Shouse,
Springer, Moore, Poletti, and Breiter and General Fore-
man Cratsenburg that the reason that they were not
being assigned overtime work was because the travelers
on the project were not being assigned overtime work.
And as described in detail supra, Foremen Barnes,
Shouse, Springer, and Thuotte and General Foremen
Stuart and Cratsenburg explained to the travelers that
the reason they were being laid off was that all of the
travelers were being terminated prior to the start of the
shutdown phase of the project. Indeed, General Foreman
Stuart, as described supra, on several occasions advised
traveler Cangi that Cangi would be eligible to work the
shutdown phase of the project if he became a member of
Respondent Union and suggested that Cangi transfer his
membership into Respondent Union if he wanted to
work the shutdown. I realize that, in making the above-
described explanations of why the travelers were not
working overtime and were being laid off, the foremen
used the word "traveler" rather than the phrase "non-
member of Respondent Union" and that the term was
used by the foremen in this sense. Thus, for example, Re-
spondent Employer's construction superintendent Ber-
trand defined a "traveler" as "a journeyman . . . that
does not belong to the local that we are hinng out of'
and Foreman Barnes defined "traveler" as "somebody
that belongs to a local other than Local 250."
(3) The statements of the foremen, that the reason
travelers were not working overtime and were being laid
off because of their status as travelers was due to pres-
sure from Respondent Union and the policy of that
Union, are further evidence of Respondent Employer's
illegal motivation. Thus, as described in detail supra,
Foreman Wayne Springer told his crew which was made
up of virtually all travelers that the instruction that the
travelers would not work the unscheduled overtime had
come from Respondent Union. Foreman Al Thuotte, as
described in detail supra, informed the travelers on his
crew that the reason the travelers were not being as-
signed any overtime work was that "it was the policy of
Local 250." And, as described in detail supra, Foreman
Bill Springer told traveler Gerald Mayes that Springer
had been unable to remove Mayes' name from the layoff
list as Springer had done once before because "word had
come down from Local 250 that all travelers will go."
Since the foremen were the ones who made the selec-
tions for overtime work and layoffs, I am of the opinion
that it is reasonable to infer that the aforesaid foremen
were authoritatively reporting information received from
management and that it was on this information that they
acted.
(4) Although the practice and procedure which was
supposed to have been followed on the project with re-
spect to the selection of workers for overtime work and
layoff was that the crew foremen would make the selec-
tions, the record reveals that this procedure was not fol-
lowed. The evidence of the deviation from the usual
practice, which has already been set forth in detail supra,
can be briefly stated as follows. After Foreman Wayne
Shouse during the week had indicated to the travelers on
his crew that they could expect to work overtime that
weekend, the next day he was forced to retract this as-
signment with the explanation that the travelers on the
project would not be assigned overtime. Foreman
Wayne Springer told the members on his crew that he
could not assign them overtime work and indicated that
he did not think that this was fair and if left to his own
devices he would have assigned them overtime. After
Foreman Jack Moore informed his crew, which included
several travelers, that they could expect to work some
M W KELLOGG CONSTRUCTORS 1073
overtime, the next day he was forced to retract his state-
ment and explain to the crew that the travelers would
not be allowed to work overtime. Foreman Joe Polett'
apologized to the travelers on his crew for not assigning
them any overtime work and explained that he had been
given orders from higher up not to assign travelers over-
time work When Foreman Joe Fahey advised traveler
James of his layoff he explained to James that he was not
responsible for James' selection as he had been selected
for layoff by General Foreman Stuart. Thereafter, Gen-
eral Foreman Stuart explained to James that in selecting
people for layoff he had been told "by his superiors to
get rid of the travelers." When travelers Mathieson, Bics,
and Smith were laid off, General Foreman Cratsenburg,
who had previously indicated that he wanted them to
work the shutdown because of their good work, apolo-
gized to them for their layoff, and explained that the in-
structions to lay them off had been issued by someone
above Cratsenburg in the managerial hierarchy who in-
structed Cratsenburg that no travelers would be working
during the shutdown. And Foreman Wayne Springer,
after indicating that traveler Colby could expect to work
the shutdown by asking him which shift he wanted to
work during the shutdown, thereafter told him he was
being laid off because all of the travelers were going to
be terminated prior to the shutdown. The aforesaid unex-
plained deviations by Respondent Employer from its
usual policy of having the crew foremen select the per-
sons for layoff and overtime work is further evidence of
Respondent Employer's illegal motivation in selecting
the travelers for layoff and denying them an opportunity
to work overtime.44
(5) The testimony of Respondent Employer's foremen
that the Respondent Employer selected workers for
overtime and for layoff on the basis of their membership
or nonmembership in Respondent Union and gave pref-
erential treatment to the members of Respondent Union
over the nonmember travelers constitutes a confession of
unlawful discrimination and is evidence of discriminatory
motivation. NLRB v. Ferguson, 257 F.2d 88, 90 (5th Cir.
1958). Head General Foreman Goldie testified that in se-
lecting workers for layoff the foremen took into consid-
eration the fact that the worker was a nonmember travel-
er and gave preference to members of Respondent Union
over the travelers and that in selecting workers for over-
time work the worker's status as a traveler or a member
of Respondent Union was taken into account and the
workers chosen to work overtime were members of Re-
spondent Union, not the nonmember travelers. (Tr 863,
870-871.) General Foreman Cratsenburg testified that the
several foremen under his supervision gave preference to
members of Respondent Union over nonmember travel-
ers in selecting workers for layoff and that if the foremen
had not given such preferential treatment to members of
Respondent Union Cratsenburg would have stepped in
and spoken to them about the matter. (Tr. 1004, 1026-
27 ) Cratsenburg also testified that the foremen gave the
4 4 An unexplained departure from an employer's normal practice, as is
the case here, is evidence of Illegal motivation See NLRB v. Ra-Rich
Mfg Corp, 276 F 2d 451, 453-454 (2d Cir 1960), Aeronca Mfg Co v
NLRB, 385 F 2d 724 (9th Ctr 1967), United States Gypsum Co., 259
NLRB 1105, 1107 (1982)
members of Respondent Union preferential treatment
over the nonmember travelers in the assignment of over-
time work and that the travelers were assigned overtime
work only "in an emergency" and that otherwise only
members of Respondent Union were assigned the over-
time work (Tr. 997-998, 1043). Foreman Al Thuotte tes-
tified that even if the travelers on his crew had been
doing an excellent job he would have had to lay them
off ahead of the members of Respondent Union because
the practice was to give preference to members of Re-
spondent Union over nonmember travelers and that
Thuotte in fact selected a traveler for layoff even though
said traveler was as qualified as any members of the Re-
spondent Union on his crew that were not picked for
layoff. General Foreman Stuart testified that the non-
member travelers were laid off before members of Re-
spondent Union because the custom is that travelers are
laid off first. He admitted that on his crew there were
some travelers whose work he thought was virtually as
good as the work of the members of Respondent Union,
but they were laid off nevertheless because, as Stuart tes-
tified, if Stuart allowed an exception for even one travel-
er he would have had to make an exception for all of
them and as a result the best that he could do was to
keep the more competent travelers employed until the
last possible moment before the shutdown phase of the
project. Foreman Barnes testified that, in deciding who
to lay off on his crew, "I would not lay off any 250
hands. I would lay off travel cards before I would lay
off 250 people." (Tr. 884.) He also testified that travelers
would be selected for layoff even though they were
more competent than members of Respondent Union and
that in fact there were travelers on his crew who were
competent pipefitters whose work he had no problems
with but who were laid off because they were travelers.
(Tr. 889-890.)
(6) The disparate treatment of traveler Foster as com-
pared to the other travelers further demonstrates Re-
spondent Employer's discriminatory motivation. Thus,
while all of the other travelers were laid off prior to the
shutdown, traveler Foster was retained and employed to
work the shutdown because Respondent Employer mis-
takenly thought that he was a member of the Respondent
Union. It is established that "the essence of discrimina-
tion in a Section 8(a)(3) violation consists of treating
light cases differently." Marathon Le Tourneau Co. v.
NLRB, 699 F.2d 248, 253 (5th Cir. 1983), quoting Gener-
al Motors Corp. v. NLRB, 596 F.2d 1295, 1305 (5th Cir.
1979); Babcock & Wilcox Co., 683 F.2d 858, 859-860 (4th
Cir. 1982).
The aforesaid considerations, 1 through 6, viewed in
their totality, have persuaded me that the General Coun-
sel has proven by a preponderance of the evidence that
Respondent Employer engaged in the discrimination al-
leged in the complaint for a discriminatory motive,
namely, that the General Counsel has proven by a pre-
ponderance of the evidence that a motivating factor in
Respondent Employer's selection of the 130 named trav-
elers for layoff on the dates of their respective layoffs
was their nonmembership in Respondent Union and in
order to give preference to Respondent Union's members
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the refusal of Respondent Employer to assign
overtime work to those travelers employed during the
period from March 1 through May 31, 1982, was moti-
vated by identical considerations.
In reaching this conclusion I have considered Re-
spondent Employer's argument that even if it gave pre-
ferred treatment to the members of Respondent Union
because of their membership such conduct could not
have encouraged the travelers to become members of
Respondent Union within the prohibition of Section
8(a)(3) of the Act, and that in any event Section 8(0(4)
of the Act sanctioned Respondent Employer's preferen-
tial treatment of Respondent Union's members. My rea-
sons for rejecting these contentions are as follows.
Respondent Employer's contention that its discrimina-
tion against the travelers in favor of Respondent Union
members could not have encouraged the travelers to
become members of Respondent Union is apparently
based on the premise that the United Association, not its
separate local affiliates, is the relevant labor organization
for 8(a)(3) purposes because each member of a local
union affiliated with the United Association is a member
of the United Association and that, by joining the United
Association, the member acquiesces in the United Asso-
ciation's rules restricting the transfer of membership be-
tween constituent local unions. However, contrary to
Respondent Employer's position, the United Association
for purposes of the National Labor Relations Act is a
separate and distinct labor organization from its local af-
filiates. For the law is settled that a local union is a sepa-
rate and distinct entity from the International union with
which it is affiliated. Carbon Fuel Co. v. Mine Workers,
444 U.S. 212, 217 (1979); Mine Workers (Blue Diamond
Coal), 143 NLRB 795 (1963). And in Radio Officers v.
NLRB, 347 U.S. 17 (1954), it was understood that Loner,
the charging party in the Gaynor case, could not com-
plain about the union membership rules that denied him
the right to join the union at that time. Id at 51. Never-
theless, the Supreme Court ruled, first, that the employer
by granting certain benefits only to the union members in
its work force had unlawfully encouraged Loner's inter-
est in becoming a union member, and, second, that it
made no difference that the union's rules made that ob-
jective for the moment unattainable. As the Court stated,
"[T]he Act [does not] require that [a] change in the em-
ployees 'quantum of desire' to join a union have immedi-
ate manifestations." Id. at 51. Thus, in the instant case,
what is alone relevant is the fact that Respondent Em-
ployer has been found to have preferred Respondent
Union's members over the travelers because of their
membership in Respondent Union. It makes no difference
what conditions the travelers might have to satisfy to
qualify for membership in Respondent Union or that Re-
spondent Union during the time material was not accept-
ing very many if any new members. 45 It is enough that
45 In the instant case during the 18-month tenure of Business Manager
Slawson (February 1982-August 1983) over 100 travelers had expressed
an interest to Slawson about transferring their membership Into Respond-
ent Union, but only a few bothered to file membership applications and
only 2 were accepted into membership by Respondent Union The record
reveals that one of the two travelers accepted Into membership was em-
ployed on the Shell Oil project and that his membership was transferred
the Company's discrimination had the foreseeable conse-
quence of increasing their desire to obtain it.
Respondent Employer's contention that Section 8(0(4)
of the Act" sanctions its preferential treatment of Re-
spondent Union's members over the travelers employed
on the Shell Oil project is based on the further conten-
tion that the record establishes that there is a longstand-
ing practice in the pipefitting industry of the United
States whereby members of local unions affiliated with
the United Association are accorded preferential treat-
ment over nonmember travelers in the assignment of
overtime and in the selection of workers for layoffs on
those projects within the geographical jurisdiction of the
local unions. As I have found supra, the record fails to
establish such a practice and, even if such a practice has
been proven, there is insufficient evidence that the prac-
tice was a part and parcel of the National Construction
Agreement, the governing collective-bargaining agree-
ment herein, or otherwise created enforceable collective-
bargaining rights for the members of Respondent Union
employed on the project. Moreover, Respondent Em-
ployer's 8(0(4) defense rests on the further unproven
contention that the aforesaid alleged discriminatory past
industry practice was not based on considerations of
union membership, but was really based on the prefer-
ence of the employers in the industry for a pool of read-
ily available skilled local craftsmen. As I have found
supra, there is insufficient evidence to support this con-
tention or the contention that the alleged industry prac-
tice of discriminating against nonmember travelers in
favor of members of local unions for purposes of over-
time work and layoff selection was 'uased on any of the
other objective criteria sanctioned by Section 8(0(4) of
the Act, rather than simply on considerations of union
membership. Absent a showing that a practice of dis-
crimination which on its face was based on consider-
ations of union membership was in reality based on one
of the objective criterion sanctioned by Section 8(0(4),
an agreement between Respondents embodying such a
practice of discrimination would be illegal. Iron Workers
Local 444 (Newberg Construction), 174 NLRB 1108
(1969). Likewise such an agreement would not be sanc-
tioned by those cases which recognize that a labor orga-
nization may waive the statutorily protected rights of
bargaining unit employees. For, although a union may
bargain away the economic rights of employees it repre-
sents, "it may not surrender rights that impair the em-
ployees' choice of their bargaining representative."
NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974). Plainly
an agreement which discriminates between workers on a
dunng the construction phase of the project The reason so few filed ap-
plications and so few were accepted into membership was that due to the
lack of work within Respondent Union's jurisdiction Respondent Union
was not accepting new members during this period
46 Sec 8(0(4) of the Act states, in pertinent part
It shall not be an unfair labor practice for an employer engaged
primarily in the building and construction industry to make an agree-
ment covering employees engaged in the building and construc-
tion industry with a labor organization of which building and con-
struction employees are members . because such agreement
specifies minimum training or experience qualifications for employ-
ment based upon length of service with such employer, in the
industry or in the particular geographical area
M. W KELLOGG CONSTRUCTORS 1075
basis of their union membership imposes "constraints on
the employees' ability to choose which union will repre-
sent them." Metropolitan Edison Co. v. NLRB, 460 U S.
693 (1983). In any event, since a waiver of employees'
protected rights must be expressed in clear and unmistak-
able terms, the past practice alleged to exist in this case,
which is admittedly not even expressly or by implication
included in the governing collective-bargaining agree-
ment, is insufficient to establish a waiver of the rights of
the nonmember travelers represented by the Union. See
Metropolitan Edison Co. v. NLRB, supra. It is for all of
the foregoing reasons that I reject Respondent Employ-
er's 8(0(4) defense.
Having found that the General Counsel has established
by a preponderance of the evidence that Respondent
Employer's conduct in issue in this case was discrimina-
torily motivated, namely, that Respondent Employer laid
off the travelers and did not assign them overtime work
because of their nonmembership in Respondent Union
and in order to give preference to the members of Re-
spondent Union, Respondent Employer can avoid being
held guilty of violating Section 8(a)(3) and (1) of the Act
by proving by a preponderance of the evidence that the
travelers would have been the subject to the same ad-
verse action for legitimate business reasons irrespective
of their nonmembership in Respondent Union. NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983);
Townsend & Bottum, Inc., 259 NLRB 207 (1981), enfd.
722 F.2d 297 (6th Cir. 1983). In this respect Respondent
Employer urges that the members of Respondent Union
employed on the project were more experienced and
competent pipefitters, as a group, than the travelers and
that it was for this reason that the travelers were dis-
criminated against, not because of their nonmembership
in Respondent Union. 47 I have carefully considered this
47 Respondent Employer does not contend that it discriminated in
favor of the members of Respondent Union because they were local resi-
dents, rather than members of Respondent Union See Bricklayers (Plaza
Builders), 134 NLRB 751 (1961), Operating Engineers Local 542 (Ralph
Marino), 151 NLRB 497 (1965), Everett Construction Co, 186 NLRB 240
(1970), Electrical Workers IBEW Local 8 (Romanoff Electrical), 221
NLRB 1131 (1975) Respondent Employer's failure to make such a con-
tention is understandable because the record establishes that membership
in Respondent Union is not keyed to a circumscribed geographical area
Respondent Union's members are not required to reside within Respond-
ent Union's geographical jurisdiction, some may reside as far away from
the local area as the eastern coast of the United States No evidence was
presented about the percentage of the members of Respondent Union
who were employed on the Shell Oil project during the time material
who resided within the local area Respondents, in particular Respondent
Union, presumably had this information at their disposal, but for some
unexplained reason failed to produce it and I will not presume that a sub-
stantial majority or even that a majonty of the members of Respondent
Union employed on the project resided within the geographical jurisdic-
tion of Respondent Union Such a presumption would be sheer specula-
tion Indeed, Respondents' unexplained failure to offer evidence on this
point warrants an inference that a significant number of Respondent
Union's members employed on the project were not local residents For
it is settled that "the omission by a party to produce relevant and Impor-
tant evidence of which he has knowledge, and which is peculiarly within
his control, raises the presumption that if produced the evidence would
be unfavorable to his cause." Auto Workers v. NLRB, 459 F 2d 1329, 1336
(DC Cir 1972), quoting Tendler v. Jaffe, 203 F 2d 14, 19 (1953) Accord
Interstate Circuit v US, 306 U 5 208, 225-226 (1939)
contention and for the reasons set forth hereinafter have
reached the following conclusions: Respondent Employ-
er has failed to demonstrate by a preponderance of the
evidence that 75 of the laid-off travelers, who were pipe-
fitters by trade, 48 would have been selected by their
foremen for layoff for legitimate business reasons irre-
spective of their nonmembership in Respondent Union;
nor has Respondent Employer established by a prepon-
derance of the evidence that 12 of the laid-off travelers,
who were plumbers by trade but who were either experi-
enced pipefitters or whose work supervision regarded as
competent,'" would have been selected by their foremen
for layoff for legitimate business reasons irrespective of
their nonmembership in Respondent Union; but with re-
spect to the remaining 42 laid-off travelers alleged as dis-
criminatees," who were plumbers by trade and for
whom there is no evidence that supervision was satisfied
with their work as pipefitters, I am persuaded that Re-
spondent Employer has proven by a preponderance of
the evidence that they would have been selected for
layoff on the dates they were laid off irrespective of
their nonmembership in Respondent Union, because they
were not qualified pipefitters. And regarding the dis-
criminatory denial of overtime work to the travelers, Re-
spondent Employer has failed to prove by a preponder-
ance of the evidence that the travelers in its employ
during March through May 1982 would have been
denied overtime during this period for legitimate business
reasons irrespective of their nonmembership in Respond-
ent Union.
Regarding the 75 travelers who, like the members of
Respondent Union, were pipefitters by trade, there is in-
sufficient evidence, as I have found supra, that as a
group they were any less competent or experienced as
pipefitters than the members of Respondent Union. Nor
does the record contain sufficient evidence to warrant a
finding that the crew foremen who observed their work
and who selected them for layoff believed that their
work was any less competent than the work of the mem-
bers of Respondent Union who were retained to work
the shutdown. As a matter of fact the foremen who were
responsible for the selection of this group of travelers for
layoff were not called by Respondent Employer to ex-
plain the motivation for their conduct."
48 As indicated supra, the names of the 75 travelers and their dates of
layoff are set forth in Appendix A of the decision
48 As indicated supra, the names of these 12 travelers and their dates
of layoff are set forth in Appendix B of the decision
88 The complaint alleges that 130 travelers were Illegally laid off
during the time matenal herein As indicated herein I have accounted for
only 129 of these travelers The reason for this discrepancy is that the
complaint Inadvertently named S C Reamer, who was a member of Re-
spondent Union, as having been laid off illegally
8i Foremen Barnes and Thuotte, the only foremen who were asked
during this proceeding how they decided on whom to select for layoff
from among their crews, did not testify that their selections were moti-
vated by a worker's competency They testified in effect that their choice
was based on considerations of union membership Barnes testified, "I
would not lay off any 250 hands I would lay off traveler cards before I
would lay off 250 people" He further testified that there were travelers
on his crew who were competent pmefitters who were selected by him
for layoff because they were travelers (Tr 884, 889-890) Thuotte testi-
fied that when it got down to which pipefitters to select for layoff he
Continued
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer presented no testimony from
the foremen, who would be in the best position to know
Respondent Employer's motivation for selecting these
travelers for layoff, to support its contention that the
foremen selected these 75 travelers for layoff for legiti-
mate business reasons rather than because they were not
members of Respondent Union. 52 It is for all of these
reasons that I am of the view that Respondent Employer
has failed to establish by a preponderance of the evi-
dence that these 75 travelers would have been selected
for layoff by their foremen irrespective of their nonmem-
bership in Respondent Union because of their incompe-
tency or lack of experience as pipefitters. Accordingly
Respondent Employer has failed to rebut the General
Counsel's showing of discriminatory motivation as to the
selection of these 75 travelers for layoff. I therefore find
that, as alleged in the complaint, by laying off the 75
travelers named in Appendix A on the dates opposite
their names therein, Respondent Employer violated Sec-
tion 8(a)(3) and (1) of the Act.
As to the 12 travelers who, as I have found supra, al-
though plumbers by trade, were competent and experi-
enced pipefitters or regarded as such by supervision,
there is no evidence that in selecting them for layoff
their foremen were motivated by either the fact that they
were not pipefitters by trade or that their foremen be-
lieved that they were not competent pipefitters. Other
than in the cases of George Bics, Paul Mathieson, and
Gilbert Smith, discussed infra, the foremen of these 12
travelers were not called as witnesses to explain why
they selected any one of them for layoff. In short, Re-
spondent Employer produced no evidence that these 12
travelers would have been selected for layoff by their
foremen irrespective of their nonmembership in Re-
spondent Union because they were not competent or ex-
perienced pipefitters. It is for these reasons that I am of
the view that Respondent Employer has failed to prove
by a preponderance of the evidence that these 12 travel-
ers would have been selected for layoff by their foremen
on the dates they were laid off irrespective of their non-
membership in Respondent Union. Accordingly, Re-
spondent Employer has failed to rebut the General
Counsel's showing of discriminatory motivation as to the
selection of these 12 travelers for layoff. I therefore find
that, as alleged in the complaint, by laying off the 12
travelers named in Appendix B on the respective dates
therein, Respondent Employer violated Section 8(a)(3)
and (1) of the Act.
followed the practice of laying off the nonmember travelers before the
members of Respondent Union (Tr 1091 ) I also note that General Fore-
men Stuart and Cratsenburg failed to justify the foremen's selection of
travelers for layoff in terms of any legitimate business considerations
Rather, Stuart testified that the reason travelers were selected for layoff
before members of Respondent Union was because "it's always been the
custom that the travelers go first" Cratsenburg testified that the reason
members of Respondent Union were given preferential treatment over
travelers for layoff selection was because the "practice is that the travel-
ers go first"
52 See, e g, Goodyear Tire & Rubber Co. v NLRB, 456 F 2d 465 (5th
Cir 1972), where in a comparable situation the court noted that "the
prime mover in Dobbs' discharge was [Foreman] Porter Any examma-
bon of [the Employer's] motive for discharge, therefore, must necessarily
concentrate on Porter's reasons for firing Dobbs" Id at 468
As to the remaining 42 travelers laid off during the
time material, the record reveals they are all plumbers by
trade who, as I have found supra, were presumably less
qualified to perform the pipefitting work required of
them than those pipefitters employed on the project who
were pipefitters by trade. There is no evidence that any
of the 42 was an experienced pipefitter or that supervi-
sion regarded any of them as just as competent as those
pipefitters employed on the project who were pipefitters
by trade. There is evidence that these traveler plumbers,
who were referred to the project in derogation of Re-
spondent Union's contractual obligation to refer only
qualified pipefitters, due to their inexperience as pipefit-
ters required closer supervision than the pipefitters who
were pipefitters by trade. These circumstances persuade
me that Respondent Employer has proven by a prepon-
derance of the evidence that these 42 travelers would
have been selected for layoff by their foremen on the
dates they were laid off irrespective of their nonmember-
ship in Respondent Union because they were not quali-
fied pipefitters. 53 Accordingly, Respondent Employer
has rebutted the General Counsel's showing of illegal
motivation with respect to this group of layoffs. I there-
fore shall recommend that the complaint be dismissed in-
sofar as it alleges that Respondent Employer violated
Section 8(a)(3) and (1) of the Act by laying off the 42
travelers named in Appendix C.
As to Respondent Employer's refusal to assign un-
scheduled overtime work to the travelers, Respondent
Employer presented no evidence that this conduct was
motivated by the fact that the travelers who were not as-
signed overtime, which they ordinarily would have
gotten, were either less competent or less experienced
than the members of Respondent Union selected by the
foremen. In this regard not one of the foremen who se-
lected the workers to do the overtime work involved
was called by Respondent Employer to explain why the
foremen in the assignment of the overtime work dis-
criminated in favor of the members of Respondent Union
over the travelers. Rather, Respondent Employer's fore-
men admitted that this discrimination was based on a
practice of discriminating in favor of local union mem-
bers over travelers. Not a single foreman testified that
this discrimination was based on considerations of com-
petency and work experience, rather than membership
considerations. 54 Unlike the circumstantial evidence sur-
rounding the layoff of the above-described 42 traveler
plumbers, the circumstantial evidence surrounding the
disparate treatment accorded the travelers for purpose of
overtime work does not establish by a preponderance of
53 In so concluding I have taken into account the failure of the fore-
men of these travelers to testify about what motivated the foremen to
select the travelers for layoff Nonetheless I am persuaded that the
above-described circumstantial evidence warrants the inference that these
travelers would have been selected by their foremen for layoff during the
normal course of business irrespective of their nonmembership in Re-
spondent Union
54 The vague testimony of Construction Supenntendent Bertrand and
Head General Foreman Goldie that some of the overtime was worked on
Saturdays for safety reasons and to minimize the risk of injuring people
on the project is no substitute for what is lacking in the record, namely,
the testimony of the foremen who selected the workers for overtime as
to their motivation for making their selections
M W. KELLOGG CONSTRUCTORS 1077
the evidence that the foremen would have refused to
assign overtime to the travelers employed on the job ir-
respective of their nonmembership in Respondent Union
because they were not qualified pipefitters. Accordingly,
I am of the view that Respondent Employer has failed to
rebut the General Counsel's showing that during the
months of March through May 1982 in refusing to assign
travelers overtime work and in giving preferential treat-
ment to Respondent Union's members over the travelers
in the assignment of overtime work, Respondent Em-
ployer was discriminatorily motivated. I therefore find
that as alleged in the complaint Respondent Employer
during the months of March through May 1982 violated
Section 8(a)(3) and (1) of the Act by assigning overtime
work to members of Respondent Union in preference to
the travelers, thereby causing travelers who were em-
ployed during this period to receive less overtime work
than they would have normally received.
As I have mentioned supra, there is evidence when
viewed in isolation which indicates that travelers George
Bics, Paul Mathieson, and Gil Smith, who were laid off
on May 14, 1982, would have been laid off on that date
irrespective of their nonmembership in Respondent
Union because their crew, the rigging crew, was discon-
tinued. Thus, Rigging Foreman Wayne Shouse testified
that in April and May 1982 the rigging crew which he
supervised was down to only three pipefitters—Bics,
Mathieson, and Smith—and that about May 14, 1982,
Shouse's general foreman T J Cratsenburg told Shouse
that "all the rigging is done in [Cratsenburg's] area, we
have to lay off the rigging crew," and that because of
this Shouse laid off Bics, Mathieson, and Smith. Shouse,
a member of Respondent Union, was not laid off, but re-
mained on the job as a rank-and-file pipefitter and re-
mained on the job in this capacity throughout the shut-
down phase of the project. Shouse also testified that
dunng the shutdown there was no rigging crew em-
ployed as such, but that each crew did us own rigging
work with perhaps some members of a crew doing more
of the rigging than others.
Shouse's aforesaid testimony when viewed by itself
warrants the conclusion that travelers Bics, Mathieson,
and Smith would have been laid off on May 14, 1982, ir-
respective of their nonmembership in Respondent Union.
But there is other evidence in the record which seriously
detracts from this conclusion and in my view neutralizes
Shouse's testimony and makes it highly questionable as
to whether Bics, Mathieson, and Smith ii they had not
been nonmembers of Respondent Union would have
been laid off on May 14, 1982, or like Foreman Shouse, a
member of Respondent Union, retained on the job to
work the shutdown. Thus, contemporaneous with the
layoff, General Foreman Cratsenburg was informing em-
ployees that he regarded Bics, Mathieson, and Smith as
good workers and because of this wanted them to work
the shutdown. In addition, on May 14, 1982, when Crat-
senburg apologized to Bics, Ma thieson, and Smith for
having to lay them off, he did not explain to them that
the reason for their layoff was that there was no more
work for a rigging crew; rather his explanation was that
he had been instructed by his superiors to lay them off
because no travelers were going to work the shutdown.
Likewise, when Foreman Shouse informed Bios, Mathie-
son, and Smith of their layoff, he did not explain to them
that the reason was that there was no more work for the
rigging crew, but like Cratsenburg he told them that
they were being laid off because there would be no trav-
elers employed during the shutdown. I also note that all
three of these travelers performed work other than rig-
ging work on the project. As a matter of fact, Smith at
the time of the layoff had performed more than 3000
hours of pipelining work within Respondent Union's ju-
risdiction which was sufficient to make him eligible for
book 1 registration at the hiring hall. Also Mathieson
had several years of experience working as a pipefitter
and Albert Allen, one of the travelers on the job who
was a pipefitter by trade, credibly testified that Bics and
Mathieson worked with him on the project as fitters and
did good work. Thus, when Shouse's testimony is
viewed in the context of the aforesaid additional evi-
dence, I am persuaded that, on balance, Respondent Em-
ployer has failed to prove by a preponderance of the evi-
dence that on May 14, 1982, Bics, Mathieson, and Smith
would have been laid off irrespective of their nonmem-
bership in Respondent Union because of the fact that
there was no more work for their rigging crew. Rather,
the evidence indicates that there was a strong likelihood
that Respondent Employer, but for their nonmembership
in Respondent Union, would have continued to employ
them on the job like Rigging Foreman Shouse.
In concluding that Respondent Employer with respect
to the layoffs of Bics, Mathieson, and Smith, as well as
the other instances where I have found, supra, failed to
prove by a preponderance of the evidence that travelers
would have been laid off or denied overtime for legiti-
mate business reasons irrespective of their nonmember-
ship in Respondent Union, I have been mindful of the
statement of the Supreme Court in NLRB v. Transporta-
tion Management Corp., 462 U.S 393, 403 (1983), that in
cases of this nature in considering a respondent employ-
er's argument that it would have taken the same adverse
action irrespective of an employee's protected conduct,
the Board should take into account that
The employer is a wrongdoer; he has acted out of a
motive that is declared illegitimate by the statute. It
is fair that he bear the nsk that the influence of
legal and illegal motives cannot be separated, be-
cause he knowingly created the risk and because the
risk was created not by innocent activity but by his
own wrongdoing.
b. Respondent Employer's supervisors' statements
about Respondent Employer's discrimination against
the travelers
Having found Respondent Employer discriminated
against the travelers employed on the project in favor of
the members of Respondent Union with respect to the
assignment of overtime work and the selection of work-
ers for layoff and that said discrimination was illegally
motivated in violation of Section 8(a)(3) and (1) of the
Act, it follows that the several statements made to the
travelers by Respondent Employer's foremen announcing
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this illegal conduct likewise violated Section 8(a)(1) of
the Act. More specifically, I find that Respondent Em-
ployer violated Section 8(a)(1) as follows: As described
in detail supra, during April and May 1982 several of the
foremen informed travelers that the travelers employed
on the project could not be assigned overtime work and
would be laid off from work prior to the shutdown
phase of the project, because they were travelers, not
members of Respondent Union; as described in detail
supra, during April or May 1982 General Foreman
Stuart told traveler Cangi that if Cangi transferred his
membership into Respondent Union Cangi would be able
to work the shutdown phase of the project; as described
in detail supra, on May 13, 1982, Foreman Bill Springer
told traveler Mayes that the reason for his layoff was
that Respondent Union had given instructions that all of
the travelers were to be laid off; as described in detail
supra, during April 1982 Foreman Wayne Springer told
traveler Mayes that the reason Mayes and another travel-
er could not work overtime was due to instructions from
Respondent Union; and as described in detail supra,
during April or May 1982 Foreman Al Thuotte told
traveler William Grady and another traveler that it was
the policy of Respondent Union that Respondent Em-
ployer could not assign the travelers overtime work. By
engaging in the aforesaid conduct I find that Respondent
Employer, as alleged in the complaint, violated Section
8(a)(1) of the Act.55
c. The responsibility of Respondent Union for
Respondent Employer's discrimination against the
travelers
Section 8(b)(2) of the Act declares it to be an unfair
labor practice for a labor organization "to cause or at-
tempt to cause an employer to discriminate against an
employee in violation of" Section 8(a)(3) of the Act. I
have found, supra, that Respondent Employer violated
Section 8(a)(3) of the Act by not assigning overtime
work to travelers and by laying off travelers because
they were not members of Respondent Union and in
order to give preference to members of Respondent
Union. The question presented here is whether the Gen-
eral Counsel has proven by a preponderance of the evi-
dence that Respondent Union caused Respondent Em-
ployer to engage in the aforesaid illegal conduct.
The law is settled that "[a] union cannot be found to
have caused employer discrimination unless, at the very
least, the evidence is sufficient to support a reasonable in-
55 In so concluding I have considered that the foremen herein were
members of the bargaining unit and represented by the Union. In Mont-
gomery Ward & Co., 115 NLRB 645 (1956), and its progeny, the Board
has held that a supervisor who is a member of the bargaining unit is re-
garded by employees as one of themselves rather than as a representative
of management. Accordingly, the Board has generally refused to hold
such an employer responsible for the statements of such a supervisor
absent evidence that the employer encouraged, authorized, or ratified the
supervisor's activities or acted in such a manner as to lead the employees
to reasonably believe that the supervisor was acting on behalf of manage-
ment. Here, by actually engaging in the illegal conduct which the super-
visors were telling the employees about, Respondent Employer in effect
authorized or ratified the supervisors' activities or acted in such a manner
as to lead the employees to reasonably believe that the supervisors were
acting on behalf of management.
ference of a union request or a union-employer under-
standing." Walter J. Barnes Electrical Co., 188 NLRB
183, 186 (1971). I am persuaded that the record herein
will not support a finding that the General Counsel has
proven by a preponderance of the evidence that Re-
spondent Union engaged in conduct designed to secure
the discriminatory treatment of the travelers or that
there was an understanding between Respondents which
resulted in the discriminatory treatment. The reasons for
this conclusion are as follows.
There is no direct evidence that representatives of Re-
spondent Union caused representatives of Respondent
Employer to discriminate against the travelers in favor of
the members of Respondent Union. As a matter of fact
all of Respondents' representatives who were questioned
during the hearing about this matter testified to the effect
that Respondent Employer's discriminatory conduct in
this case was not caused by any representative of Re-
spondent Union. Likewise, there is insufficient circum-
stantial evidence to warrant a finding that Respondent
Union caused Respondent Employer to discriminate
against the travelers in favor of Respondent Union's
members. I recognize, as described in detail supra, that
one foreman told a traveler that the reason for the trav-
eler's layoff was due to the instruction of Respondent
Union that all travelers were to be laid off and, as de-
scribed in detail supra, that two foremen told travelers
that the reason travelers could not work overtime was
due to instructions from Respondent Union. However,
this evidence cannot be relied on to establish that Re-
spondent Union caused Respondent Employer to dis-
criminate against the travelers. Walter J. Barnes Electrical
Co., 188 NLRB 183, 186, 187 (1971); Railway Clerks
(Safety Cabs), 180 NLRB 126 (1969); Stage Employees
Local 776 (Film Editors), 124 NLRB 842, 843 fn. 2
(1959). And the fact that, as I have found infra, on May
14, 1982, Respondent Union's steward Wareham, in vio-
lation of Section 8(b)(1)(A) of the Act, threatened travel-
er Gilbert Smith with loss of employment if he attempt-
ed to contest Respondent Employer's discrimination
against the travelers, while it is evidence that Respond-
ent Union was more than happy to reap the benefits for
its members of Respondent Employer's policy of illegal
discrimination, is insufficient to prove that Respondent
Union caused Respondent Employer to institute the dis-
criminatory policy or was otherwise responsible for the
policy. Likewise the fact that Respondent Union's stew-
ard Wareham, as found infra, told the employees about
Respondent Employer's policy of discrimination against
the travelers is not proof that Respondent Union caused
Respondent Employer to institute and/or maintain this
policy.
Nor has the General Counsel established by a prepon-
derance of the evidence that Respondent Employer's dis-
crimination against the travelers was the result of an un-
derstanding between Respondents. There is no evidence,
direct or circumstantial, of either a written or verbal un-
derstanding between Respondents whereby Respondent
Employer agreed to discriminate against the travelers in
favor of the members of Respondent Union. I have con-
sidered that Respondents in their posthearing briefs have
M. W. KELLOGG CONSTRUCTORS 1079
urged that the existence of a longstanding practice in the
pipefitting industry of employers preferring local union
members over travelers has resulted in the practice be-
coming a part of the National Construction Agreement,
the agreement which governs Respondents' bargaining
relationship in this case. This contention, however, does
not amount to an admission by Respondents that there
was an understanding between Respondents that Re-
spondent Employer would grant preferential treatment
to Respondent Union's members over the travelers for
layoff and overtime work purposes. Respondents' argu-
ment in this respect is not based on the terms of either an
oral or written understanding entered into between Re-
spondents, but rather on the testimony of Arbitrator
Melvin Leimard, who as an expert witness for Respond-
ent Employer testified that if there was a longstanding
practice in the pipefitting industry pursuant to which em-
ployers in that industry granted preferential rights to the
members of local unions over travelers for purposes of
layoffs and overtime, that by virtue of this longstanding
practice the members of Respondent Union employed on
the Shell Oil project would have, in his opinion, a right
under the terms of the National Construction Agreement
to be afforded preferential treatment over the travelers
for purposes of overtime work and layoff selection. Arbi-
trator Lennard was very careful, however, to note that
the right of the members of Respondent Union to such
preferential treatment "was not based necessarily on the
understanding of the parties but on the practice that you
have described [referring to the alleged longstanding past
practice whereby local union members were given pref-
erential treatment over travelers by the employers in the
pipefitting industry]." (Tr. 1240.) In short, the under-
standing relied on by Respondents in their posthearing
briefs is not the type of understanding which exists by
virtue of an overt or affirmative act engaged in by Re-
spondent Union. Accordingly, it does not amount to evi-
dence of union causation within the meaning of Section
8(b)(2) of the Act.
It is for all of the foregoing reasons that I am of the
opinion that the General Counsel has not proven by a
preponderance of the evidence that Respondent Employ-
er's illegal discriminatory treatment of the travelers in
this case was caused by Respondent Union. I therefore
shall recommend the dismissal of these allegations of the
complaint.
d. The statements of Respondent Union's steward
about Respondent Employer's discrimination against
the travelers
As described in detail supra, when the pipefitters were
referred to the project from Respondent Union's hiring
hall the first thing they did on their arrival was to give
their referral slips to Richard Wareham, Respondent
Union's steward, Respondent Union's representative on
the jobsite. Wareham at this time informed the groups of
newly arrived pipefitters about the various company
rules and regulations which would govern their work on
the project, including the fact that travelers would not
be assigned any of the unscheduled overtime work as
this work would be done by the members of Respondent
Union. Also in April or May 1982, as described in detail
supra, when traveler Michael Cangi spoke to Wareham
about the fact that Cangi's foreman had assigned him to
work Saturday overtime, Wareham explained to Cangi
that the reason Cangi had been assigned this overtime
was that the foreman mistakenly thought Cangi was a
member of Respondent Union. Lastly, on May 14, 1982,
as described in detail' supra, traveler Gilbert Smith, who
had been laid off that day, complained to Wareham that
members of Respondent Union were being hired at the
same time travelers were being laid off. Wareham re-
plied, "[T]hat's the way it is," and in effect told Smith
that only members of Respondent Union, no travelers,
would work the shutdown phase of the project. Smith
responded by stating that he did not think that this dis-
crimination against the travelers was fair and that he in-
tended to fight it. Wareham, in response, warned Smith
that if Smith contested the matter Smith would never
work in the area again.
The General Counsel contends that the above-de-
scribed statements of Wareham that Respondent Union's
members rather than travelers would be assigned over-
time work violated Section 8(b)(1)(A) of the Act. 56 I
disagree for these reasons. As I have found supra, Re-
spondent Union did not cause nor was it otherwise re-
sponsible for the Employer's illegal discrimination
against the travelers in the assignment of overtime work.
Nor do the circumstances under which Wareham made
the aforesaid statements lead to the conclusion that
Wareham by his conduct placed himself in a situation
reasonably calculated to lead the employees to believe
that Respondent Union was a party to Respondent Em-
ployer's illegal discrimination. Rather, when new work-
ers arrived on the jobsite Wareham was merely acting as
a conduit for Respondent Employer in explaining to the
employees the several company work rules which would
govern their work on the job. Objectively speaking, the
circumstances do not warrant the inference that Ware-
ham's explanation of the various company rules was cal-
culated to lead the employees to reasonably believe that
the Union was responsible for these rules, rather than
that Wareham in his capacity as union steward was
simply performing the ministerial act of relaying to the
employees the various company work rules which would
govern their work on the project. Under the circum-
stances I am of the opinion that Wareham's above-de-
scribed statements concerning Respondent Employer's
discrimination against the travelers did not violate Sec-
tion 8(b)(1)(A) of the Act.
I agree with the General Counsel that Respondent
Union violated Section 8(b)(1)(A) of the Act by virtue of
Wareham's above-described May 14, 1982 threat to trav-
eler Gilbert Smith that Smith would never work in the
area again if he attempted to fight Respondent Employ-
er's illegal discrimination of laying off the travelers be-
cause of their nonmembership in Respondent Union. The
threat that Smith would never work in the area again if
he attempted to contest Respondent Employer's illegal
conduct was reasonably calculated to coerce or intimi-
56 Sec. 8(b)(1)(A) of the Act forbids a union "to restrain or coerce. . .
employees in the exercise of the rights guaranteed in Section 7 of the
Act."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date Smith from contesting the Company's illegal policy
by exercising his rights under Section 7 of the Act to file
unfair labor practice charges with the Board or to file a
grievance with his collective-bargaining representative,
Respondent Union, challenging the Company's illegal
practice. I therefore find that Respondent Union violated
Section 8(b)(1)(A) of the Act on May 14, 1982, when
Wareham threatened traveler Gilbert Smith with a loss
of employment if he attempted to fight Respondent Em-
ployer's illegal policy of laying off travelers because of
their nonmembership in Respondent Union.57
B. Respondent Union's Refusal to Allow Referral
Applicants to Examine the Dispatch Book
1. The evidence58
Respondent Union, which operates an exclusive hiring
hall, dispatches applicants from its hall from 8 a.m. until
approximately 12 noon.
On approximately May 18, 1982, Gilbert Smith regis-
tered for work at Respondent Union's hiring hall. The
next morning at approximately 10 a.m. Smith went to the
dispatch window and spoke to the dispatch secretary. He
asked where his name was located on the dispatch book
and if he could examine the dispatch book to see where
his name was located." The dispatch secretary an-
swered, "No," and when Smith asked how far his name
was from the top of the list of registrants, the dispatch
secretary told him, "[W]e don't have time right now" to
furnish that information. The same dispatch secretary
previously in September 1981 had refused Smith's re-
quest to examine the dispatch book.
On approximately May 4, 1982, at approximately 11
a.m., Virgil James, who had recently registered at Re-
spondent Union's hiring hall, went to the dispatch
window of the hiring hall and spoke to the dispatch sec-
retary. He asked if he could examine the dispatch book
in which he was registered." The dispatch secretary re-
plied, "No," and stated that she was too busy to show
him the book, but told him that he was "way down" the
list. Thereafter the dispatch secretary showed James the
particular page in the dispatch book on which his name
appeared, but refused to allow him to examine the book
so that he could turn the pages and determine how many
applicants were registered ahead of him.
" I have considered that although the complaint alleges Wareham's
May 14, 1982 conversation with Smith as violating Sec 8(b)(1)(A) of the
Act, the violation found herein was not specifically alleged However, "It
is well established that a violation not alleged in the complaint may nev-
ertheless be found where, as here, the unlawful activity was related to
and intertwined with the allegations in the complaint, and the matter was
fully litigated before the Administrative Law Judge" Dora! Hotel &
Country Club, 240 NLRB 1112 fn. 3 (1979)
58 The evidence herein is based on the undemed and uncontradicted
testimony of Gilbert Smith, Virgil James, and William Grady Each Im-
pressed me as a sincere and reliable witness
59 Smith's reason for seeking this information was to determine wheth-
er he was far enough down in the order of referral so that It would be
safe for him to take a vacation without having to nsk his name being
called for a job opening.
69 James' reason for desiring to examine the dispatch book was to de-
termine the number of applicants registered ahead of hun so he would
have some idea of his chances of being dispatched
Previously, in the fall of 1981, James, who at the time
was registered for work at Respondent Union's hiring
hall, asked Respondent Union's business agent Vic Urso,
who was in the dispatch office, if he could examine the
dispatch book. Urso, without explanation, denied the re-
quest, which was made during the period when the dis-
patch office was open for business. Subsequently, in May
1982, after James' unsuccessful effort to have the dis-
patch secretary allow him to examine the dispatch book,
supra, James asked Urso if he and some other applicants
could examine the dispatch books on which they were
registered. The request was made at approximately 11
a.m. at the dispatch window where James and several
other referral applicants had gathered. James asked Urso
whether James and several other applicants who were
with him could examine the dispatch book because they
wanted to determine "how far down on the list [they]
were." 6 ' Urso told them that they were "way down on
the list." Urso also showed one or two of the applicants,
including James, the particular pages in the dispatch
book where their names were listed, but refused to allow
them to examine the dispatch book. James explained to
Urso that they would like to examine the dispatch book
in order to count the number of applicants who were
registered ahead of them. Urso, without explanation, re-
fused this request.
On approximately May 10, 1982, William Grady regis-
tered for work at Respondent Union's hiring hall. Subse-
quently, about May 12, 1982, at approximately 11 a.m.,
Grady with another applicant asked the dispatch secre-
tary if they could examine the dispatch book on which
they were registered. The response of the dispatch secre-
tary, who at the time had the dispatch book in her
hands, was to close the book and, without any explana-
tion, tell them they could not examine it."
2. Discussion and conclusionary findings
As described in detail supra, during May 1982 on four
separate occasions several applicants for employment
who had registered for work at Respondent Union's ex-
clusive hiring hall asked agents of Respondent Union for
permission to examine the dispatch books on which they
were registered and in each instance their request was
denied. In two of the four instances the dispatch secre-
tary in refusing to honor the requests, which were made
during the business hours of the dispatch office, ex-
plained that she was too busy. In the other two instances
the referral applicants' requests to examine the dispatch
books, which requests were also made during the busi-
ness hours of the dispatch office, were denied without
any explanation.
The only evidence presented by Respondent Union
with respect to this allegation is the testimony of Re-
Si The reason that James and the other referral applicants who were
With him wanted to examine the dispatch book was to determine the
number of applicants registered ahead of them and to determine whether
the applicants who were registered were being dispatched in their order
of registration
62 Grady and the other applicant wanted to examine the dispatch book
in which they were registered in order to determine where they were on
the dispatch list
M. W. KELLOGG CONSTRUCTORS 1081
spondent Union's business manager Richard Slawson that
the Respondent Union's policy is not to allow the dis-
patch books out of the dispatch office because they are
important business records which, if lost or destroyed,
would be virtually irreplaceable Slawson further testi-
fied that Respondent Union's policy is that when referral
applicants ask the dispatch secretary for permission to
examine the dispatch books that the dispatch secretary
tells them to go to Slawson's office to make their request
and that, when they make their request to Slawson,
Slawson escorts them into the dispatch office and in
Slawson's presence the applicants are permitted to exam-
ine the dispatch books.
The Board has held that a union, such as Respondent
Union, which operates an exclusive hiring hall, violates
its duty of fair representation and Section 8(b)(1)(A) of
the Act when it refuses to permit a referral applicant to
view its referral records. Operating Engineers Local 324
(AGC of Michigan), 226 NLRB 587 (1976); Plasterers
Local 90 (Southern Illinois Builders Assn.), 236 NLRB
329, 338 (1978). Respondent Union in defending against
its refusal to allow the referral applicants in this case to
examine its dispatch books urges that the dispatch secre-
tary and union business agent were privileged to refuse
the applicants' requests because, in the first place, the re-
quests were made during business hours when the books
were in use, thus, the Union's agents acted reasonably in
refusing the requests and, in the second place, the appli-
cants in making their requests to examine the dispatch
books failed to follow Respondent Union's prescribed
procedure which was a reasonable one. These defenses
are without merit for the following reasons.
The referral applicants were not obliged to follow Re-
spondent Union's alleged procedure for examining the
dispatch books because they were not informed of the
existence of this procedure; there is no evidence that at
the time they were refused permission to examine the
dispatch books or that at any other time the referral ap-
plicants were informed that the correct procedure was
for them to speak to Business Manager Slawson if they
wanted to examine the dispatch books. And with respect
to the fact that the requests were made during the busi-
ness hours of the dispatch office, I note that in two of
the four instances where the requests to examine the dis-
patch books were denied no explanations were offered
for the refusals. The applicants were not advised directly
or by implication that they could return to the dispatch
office after its business hours and at that time they would
be permitted to examine the relevant dispatch books. Re-
garding the other two instances, where the dispatch sec-
retary did explain to the applicants that she was too busy
to allow them to examine the dispatch books, the dis-
patch secretary did not indicate that if the applicants re-
turned when she was not busy that she would allow
them to examine the books. As a matter of fact, the dis-
patch secretary was not authorized to permit an appli-
cant to examine the dispatch books because, according to
Respondent Union's alleged policy, supra, an applicant
before being allowed to examine the dispatch books must
first get the permission of Business Manager Slawson
who would personally escort the applicant into the busi-
ness office to examine the books, apparently without urn-
itation as to whether or not the dispatch office was open
for business. It is for the foregoing reasons that I find
that Respondent Union has not justified its refusal to
allow the referral applicants permission to examine its
dispatch books.
Based on the foregoing I find that Respondent Union
during May 1982 unjustifiably refused to allow referral
applicants Smith, James, Grady, and other unidentified
applicants to examine Respondent Union's dispatch
books in violation of Section 8(b)(1)(A)
CONCLUSIONS OF LAW
1. The Respondent Employer, M. W. Kellogg Con-
structors, Inc. is an employer engaged in commerce with
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local 250,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent Employer violated Section 8(a)(3) and
(1) of the Act by refusing to assign overtime work to the
travelers employed on the Shell Oil project from March
1 through May 31, 1982, and by laying off the 87 travel-
ers whose names appear in Appendices A and B on the
dates opposite their names, because said travelers were
not members of Respondent Union and in order to give
preference to members of Respondent Union.
4. Respondent Employer violated Section 8(a)(1) of
the Act as follows: By informing employees on the Shell
Oil project that travelers could not be assigned overtime
work and would be laid off from work prior to the shut-
down phase of the project, because they were travelers
and not members of Respondent Union; by informing a
traveler on the Shell Oil project that if he transferred his
membership into Respondent Union he would be eligible
to work the shutdown phase of the project; by telling a
traveler on the Shell Oil project that the reason for his
layoff was that Respondent Union had given instructions
that all of the travelers were to be laid off, by telling a
traveler on the Shell Oil project that the reason that the
traveler and another traveler could not work overtime
was due to instructions from Respondent Union; and by
telling travelers on the Shell Oil project that it was the
policy of Respondent Union that Respondent Employer
could not assign the travelers any overtime work.
5. By threatening an employee with loss of employ-
ment if he contested Respondent Employer's above-de-
scribed unlawful policy of laying off travelers because of
their nonmembership in Respondent Union, Respondent
Union violated Section 8(b)(1)(A) of the Act.
6. By refusing to permit applicants for employment,
who were registered for work at its exclusive hiring hall,
to examine its dispatch books, Respondent violated Sec-
tion 8(b)(1)(A) of the Act
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent Employer violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to assign over-
time work to the travelers employed on the Shell Oil
project during the period encompassing March 1 through
May 31, 1982, because of their nonmembership in Re-
spondent Union, I shall recommend that Respondent
Employer make whole the travelers employed by it on
the Shell Oil project during the aforesaid period of time
for any loss of earnings they may have suffered by virtue
of Respondent Employer's discrimination, 63 with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
Having also found that Respondent Employer violated
Section 8(a)(3) and (1) of the Act by laying off the 87
travelers employed on the Shell Oil project, whose
names appear in Appendices A and B on the dates oppo-
site their names, because of their nonmembership in Re-
spondent Union, I shall recommend that they shall be
made whole for any loss of earnings or other benefits
they may have suffered as the result of the discrimination
against them," as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
I have not recommended the usual remedy of rein-
statement, inasmuch as the laid-off discriminatees had no
expectation of continued employment with the Respond-
ent Employer beyond the date on which work at the
Shell Oil project was completed. However, I shall rec-
ommend that Respondent Employer inform each one of
the discriminatees named in Appendices A and B, in
writing, that he or she will be considered eligible for em-
ployment in the future at any of its projects, on a nondis-
criminatory basis, if he or she should choose to apply for
66 The record reveals the names of the travelers employed dunng the
period of April 7 through May 31, 1982, who were laid off during that
time period (It. Exh. 1, app E), but fails to reveal the names of the trav-
elers, if there were any, who were employed from March 1 to April 7,
1982, but who were terminated prior to April 7, 1982 The identity of
this latter group of travelers will be left to the compliance stage of this
proceeding. NLRB v. Iron Workers Local 433, 600 F 2d 770, 778 (9th Cir
1979). Of course the amount of overtime pay, if any, which any one of
the discrimmatees who were employed during the relevant time period is
entitled to receive will be determined in the compliance stage of this pro-
ceeding
64 Respondent Employer's backpay liability will toll no later than the
date that its work on the Shell Oil project ended, which, as I have found
supra, occurred sometime in July 1982 Respondent Employer will have
an opportunity in the compliance stage of this proceeding to prove that
some or all of the discritmnatees would have been selected for layoff
even prior to the actual end of its operations on the project But so there
will be no misunderstanding of the intent of this remedial order, I also
note that Respondent Employer is precluded in the compliance stage of
this proceeding from attempting to prove that some or all of the 87 dis-
cnnimatees would have been laid off on the dates opposite their names in
Appendices A and B during the normal course of business irrespective of
their nonmembership in Respondent Union The question of whether Re-
spondent Employer would have laid off those employees on those dates
for legitimate reasons even absent their nonmembership in Respondent
Union was an issue encompassed by the complaint in this proceeding and,
as I have found supra, Respondent Employer in this proceeding failed to
make such a showing. In short, the principles of res judicata preclude the
rehtigation of this issue during the compliance stage of this proceeding
employment at any of them. Steelcon, Inc., 266 NLRB
881 (1983), and Franchi Bros. Construction Corp., 232
NLRB 179 (1979). I shall also recommend that Respond-
ent Employer mail copies of the notice recommended
herein to each employee employed by Respondent Em-
ployer on the Shell Oil project as a pipefitter during the
period of March 1 through May 30, 1982, the time of the
unfair labor practices herein."
[Recommended Order omitted from publication.]
65 Where, as here, an employer's termination of its operations pre-
cludes notification through posting, It is the Board's customary procedure
to require that the appropriate notice be mailed to all the employees who
were employed at the time the unlawful act occurred in order to elimi-
nate, to the extent possible, the lingering effects on those employees who
might have been exposed to that unfair labor practice See Daniel Con-
struction Co., 239 NLRB 1335 fn 1 (1979), enfd 634 F 2d 621 (4th Or
1980), Bell & Howell Schools, 226 NLRB 601 fn 2 (1976); Wolfson Mfg.
Co, 197 NLRB 970 (1972) Accord Sturgis Newport Business Forms v.
NLRB, 563 F 2d 1252, 1259 (5th Cir 1977)
APPENDIX A
Employee name Layoff Date
D. E. Meyers 4/7/82
P. R. Moore 4/7/82
D. B. Prince 4/7/82
M. L. Vessels 4/7/82
T. H. Dazey 4/8/82
D. R. Bauer 4/9/82
D. D. Beecham 4/9/82
W. D. Bell, Jr. 4/9/82
C. Brown 4/9/82
T. A. Casner 4/9/82
W. D. Harris 4/9/82
D. P. Hubbert 4/9/82
D. T. Jarvie 4/9/82
A. B. Kerfoot 4/9/82
K. M. Kidd 4/9/82
C. D. Miles 4/9/82
J. E. Pegg 4/9/82
E. C. Perez 4/9/82
L. R. Womack 4/9/82
R. J. Gurganus 4/14/82
D. N. Broskey 4/16/82
F. E. Lenz 4/16/82
J. W. Roland 4/19/82
L. J. Kroger 4/22/82
H. Osborne 4/23/82
R. F. Trusty 4/27/82
M. B. Burch 4/28/82
D. G. Harris 4/29/82
D. R. Robinson 4/29/82
J. P. Brunning 4/30/82
J. B. Burba 4/30/82
D. Estrada 4/30/82
C. R. Heckman 4/30/82
R. E. Hicks 4/30/82
G. J. Keller 4/30/82
M. V. Patrick 4/30/82
J. S. Pina 4/30/82
L. F. Raftery 4/30/82
M. W. KELLOGG CONSTRUCTORS 1083
Employee name Layoff Date APPENDIX B
R. A. Roche 4/30/82 Employee Name Layoff Date
D. V. Sillanpa
L. H. Thomas
E. Van Valkenburg
W. C. Wasson
C. A. Bledsoe
J. A. Kenowsky
W. M. Lamb
R. J. Lavin
J. F. Locke
V. Martinez
A. D. Moon
R. R. Oom
M. C. Pierce
4/30/82
4/30/82
4/30/82
4/30/82
5/7/82
5/7/82
5/7/82
5/7/82
5/7/82
5/7/82
5/7/82
5/7/82
5/7/82
L. J. Lindquist
C. R. Colby
H. R. Martel
K. R. Pashby
J. P. Rabey
G. A. Bics
P. C. Mathieson
G. L. Mayes
P. E. Segura
G. L. Smith
M. A. Cangi Sr.
R. C. O'Bosky
4/9/82
5/7/82
5/7/82
5/7/82
5/7/82
5/14/82
5/14/82
5/14/82
5/14/82
5/14/82
5/19/82
5/19/82
M. L. Taber
B. E. Tillman
5/7/82
5/7/82
APPENDIX C
E. Underwood 5/7/82 Employee Name Layoff Date
C. L. Williams
J. J. Ward
5/7/82
5/7/82
L. J. Trupiano
R. R. Andrews
S. Ingianne
V. James
A. E. Allen Jr.
J. R. Bostick
5/14/82
5/14/82
D. R. Casteel
B. K. Chesser
E. E. Nale
D. G. Oberly
G. F. Griffith 5/14/82 E. D. Datz H. Robinson
A. E. Halter Jr. 5/14/82 A. G. Dawson C. W. Rozar
J. M. Hulsey 5/14/82 M. M. Maloney E. E. Shank
D. E. Jacobs 5/14/82 G. M. O'Brien L. R. Valdez
G. Jones 5/14/82 A. D. Piper C. E. Wittman
H. J. Korff
D. R. Mock
F. Moore
J. W. Overton
A. R. Boutin
D. L. Cummings
J. R. Evans
C. Francis
A. F. Gonzalez
J. A. Rabun
J. K. Williams
5/14/82
5/14/82
5/14/82
5/14/82
5/19/82
5/19/82
5/19/82
5/19/82
5/19/82
5/19/82
5/19/82
V. B. Richard
K. E. Riley
R. L. Riley
A. Ronholt
L. L. Strongman
L. E. White
P. S. Younker
W. W. Davis
C. W. Beal
W. H. Clark
H. 0 Casner
G. H. Crandell
W. T. Grady
J. Jenkins
W. T. McNulty
J. S. Miller
W. Teal Jr.
R. M. Bragdon
G. R. Judd
H. Q. Rendon
J. G. Davis T. D. Wyer
E. L. Gonzales D. Daniels