Swank Construction Co.

National Labor Relations Board - Board Decisions

Dec 15, 1978

239 N.L.R.B. 844 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swank Construction Company and Roger E. Brinker.
Case 6-CA- 10680
December 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBI RS P Ni I I()
AND) TRUTI SI)AI I
On August 16, 1978, Administrative Laaw Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. Respondent
filed cross-exceptions and a brief in answer to the
General Counsel's exceptions and in support of its
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith,' and to adopt her recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
I We find that the General Counsel has failed to establish a prima facie
case of unlawful antiunion discrimination against Respondent in reference
to its layoff of employee Roger Brinker on October 21. 1977, Accordingly,
we agree with and adopt the Administrative Law Judge's conclusion that
Respondent did not violate Sec. 8(aX
3 ) and (Il when it laid off Brinker. In
so doing. we do not rely on the Administrative Law Judge's reference. in
support of a portion of her analysis, to two Board cases cited in fn. 15 of the
attached Decision, for reasons hereafter stated.
The Administrative Law Judge stated in her Decision that in the circum-
stances of this case it was "not interference with a protected activity nor
anti union discrimination to attempt to discipline an employee for failing to
follow the contract procedure in the pursuit of grievances" In support of
that proposition, she cited Associated Fairlawn Companies, d h a The Hrlton
West Inn. 221 NLRB 1058 (1975), and Rappaport Erhihit, Inc . 224 NLRB
1558 (1976). The citation is not appropriate
In Hilton West Inn, failure to follow the proper grievance procedure was
not a motivational issue, as it was in the instant proceeding, although the
Board did find that a supervisor had not evidenced animus against the al-
leged discriminatee by asking her to discuss a complaint with him prior to
grieving it through her union. In Rappaport. a footnote to the Board's adop-
tion of the Administrative Law Judge's Decision specifically found that the
respondent's lawful refusal to rehire the alleged discriminatee was not re-
lated to "his having filed grievances while acting as shop steward."
DECISION
SiArEMENI OF IHE CASE
Ai.MIRA ABBOT SIEVENSON. Administrative Law Judge: A
hearing was held in this proceeding April 24, 1978, in Erie,
Pennsylvania. The charge was filed and served on Respon-
dent October 31, 1977. The complaint was issued Decem-
ber 30, 1977, and duly answered by Respondent.
The issues are whether Respondent violated Section
8(a)(I) of the National Labor Relations Act, as amended,
by interrogating and threatening employees, and violated
Section 8(a)(3) and (1) of the Act by laying off Roger
Brinker on October 21. 1977. For the reasons fully set forth
below, I recommend that the complaint be dismissed.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS OF FA(T
AND
CONCI-USIONS OF LAW
I JURISDIC TION
Respondent admits, and I find, that it is a corporation
with its principal place of business located in New Kens-
ington, Pennsylvania, and is engaged in the business of
bridge construction in Pennsylvania and Ohio. During the
12-month period immediately preceding the issuance of
this complaint, Respondent received goods and materials
valued in excess of $50,000 directly from points located
outside Pennsylvania for use at its facility in New Kensing-
ton, Pennsylvania. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1I. L ABOR ORGANIZATION
Laborers' International Union of North America, Local
603, AFL-CIO, herein called the Laborers' Union, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
III ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent has been engaged for several years as a sub-
contractor replacing superstructure of bridges on highways
in Pennsylvania. Its work is largely seasonal and is regu-
larly checked by inspectors and the project engineer of the
Pennsylvania Depai-tment of Transportation.
On May 1., 1977, work began with John Murdock, a
member of the Carpenters Union for 5 years and a carpen-
ter foreman and general foreman for Swank during prior
seasons, as job superintendent; and Charles Johnson, a 28-
year member and former steward of the Carpenters Union
as well as former carpenter foreman, as general foreman.
844
SWANK CONSTRUCTION COMPANY
At the peak of the 1977 season, Respondent employed 77
employees consisting of 40 laborers, 18 carpenters, 5 car-
penter foremen, 6 cement masons, 6 operating engineers.
and 2 truckdrivers. All were union members, and each
group had aa on-site steward. Complaints were brought to
Superintendent Murdock by all the stewards during the
1977 season, 2 or 3 by the cement mason steward. 6 to 8 by
the carpenter steward, 10 to 12 by the operating engineer
steward, and 2 or 3 by the Teamsters' steward.
Respondent began cutting back on its work force in Au-
gust, and by October 21, 1977, it had only 13 laborers left
on the job. On that day it laid off two laborers-Roger
Brinker, the Charging Party, and one Michael Kelly. The
remaining 11 laborers were laid off in groups thereafter,
the last group on November 25, 1977.
The complaint alleges, in effect, that Superintendent
Murdock threatened to blacklist Brinker and laid him off
approximately I month before the end of the season be-
cause of his aggressiveness as steward of the Laborers
Union and because Brinker prevailed over Murdock in an
arbitration proceeding growing out of Murdock's having
discharged Brinker in mid-August 197'i. The complaint
also alleges that Murdock coercively interrogated Michael
Mukina, Teamsters steward, in late September 1977.
Respondent denies the unfair labor practices, and con-
tends that Brinker was selected for layoff before the 11
laborers who were retained on the payroll because of his
careless unproductive work performance and insubordina-
tion.
Swank employed Brinker during the 1975, 1976, and
1977 seasons as a laborer who performed work chiefly as a
concrete technician whose job it was to cure the concrete
properly and otherwise to assure its acceptance by the state
inspectors. He also placed reinforcing bars (re-bars) in con-
crete, shoveled and raked concrete, attended the carpen-
ters, and loaded and unloaded trucks. It is the responsibil-
ity of the cure man to maintain a constant fog spray on
bridge deck concrete for a full 7-day cure period during
which time the curing process is checked daily by Pennsyl-
vania DOT inspectors. Proper curing is essential for struc-
tural soundness, and Pennsylvania DOT Project Engineer
Robert Fulmer testified that Pennsylvania DOT had "al-
ways had trouble with concrete cures no matter who the
contractor is, or what the job is. All jobs, in order to keep
the proper cure, it is a continual problem."
Brinker was hired in April 1975. He and several (Brinker
gave various figures) other laborers, who the then superin-
tendent said were the ones who were willing to work, were
kept on the payroll throughout the winter of 1975-76. He
continued to work for Swank throughout the summer of
1976 until he was laid off in October. Four or five other
laborers remained on the payroll for sometime after.'
General Foreman Charles Johnson crediblv testified that he unsuces,-
fully urged the then superintendent to discharge Brinker during the 1976
season for refusal to obey Johnson's work orders Although hi, oserall per-
formancce obviousl[ was considered sufficientll satlsfactors h tWoarranl re-
call in 1977. I do not credit Brinker's testimony that his work as neser
criticized until after he was appointed Laborers L nion steward In June
1977. My observation of these witnesses and ms stud) of the evidence con-
vinces me that In most instances where D)rinker's testimnons and that of
Johnson and Superintendent Murdock were at odds. the supersl ,ors were
Brinker returned to Swank May 1, 1977, the first day of
work. In mid-June, Brinker was appointed steward for the
laborers.
In carrying out his stewardship, Brinker complained of-
ten about Respondent's failure to provide drinking water
and out houses for the men, facilities which Superintendent
Murdock admits were frequently inadequate. There were
other matters that Brinker complained about. One was that
the Company was not sending in timely reports for health
and welfare coverage and that the men were receiving bills
which should have been covered. After a 10-minute meet-
ing with the men. Brinker reported the matter to Murdock
who promised to take care of it. When Murdock failed to
do so, business agent Casey Rzomp came to the site and
explained the matter to Brinker who then called another
10-minute meeting and relayed the information to the men.
Another complaint involved Brinker's protest to Murdock
that laborers were not being assigned certain welding lead
work. Murdock told Brinker to send for his business agent,
and when Rzomp arrived it was agreed that one laborer
would be assigned to the task.2
With respect to Brinker's work performance, General
Foreman Johnson testified without dispute that late on an
afternoon in August, the Pennsylvania DOT inspector told
him that a deck was dry and he directed Brinker to get
some water on it. Brinker replied, "I've got some Goddam
news for you. I'm not staying. Somebody else can do it."
On July 27, General Foreman Johnson instructed Bnnker
to meet him at the route 19 jobsite at 6 o'clock the follow-
ing morning. On July 28, shortly after 6 a.m., Brinker had
not shown up and Johnson began to place materials for the
day's work. When Brinker arrived and observed Johnson
placing the materials, he went to the office and told Mur-
dock, "there would be no nigger foreman doing laborers'
work on his project." 3 The laying of concrete on this proj-
ect, route 19, was completed about 12:30 p.m. that day.
When Murdock visited the bridge at 3:30 p.m., he found it
dry and instructed Brinker to get the weephose and put
water on it immediately.4 On the morning of July 29, a
Pennsylvania DOT inspector reported to Project Engineer
Fulmer that the bridge was not being cured properly and
that Brinker had told him Fulmer had been on the bridge
July 28, and informed Brinker that he did not have to cure
the bridge. Fulmer had not been on the bridge July 28, so
he telephoned Murdock that his inspector had reported the
concrete was dry. not to ever let that happen again, and to
"Get water on there and keep it wet," or he would have to
take the deck out. 5
Brinker was nevertheless assigned to cure duty on this
bridge for the weekend of July 30 and 31. Pennsylvania
more .accurale Brinker as as t times confused. and he reconstructed events
when he bhelieed it was Io his advantage to do so
i Baesed on Brinker's credited testim,,ns
iBased on the undisputed testln!ons of Murd)ck.
B4 Hsed oi the undisputed testmon, of Murdock.
Bised on the mutuall, corroborative testimony of Fulmer and Mur-
dck I doi not credit Brinker that Fulmer came to the bridge on July 28. and
told him "io wiler the hurlap real good and put the hose on the next morn-
ing carls\" hbecause I consider Murdock and Fulmer more truthful than
Brinker and because no reason is apparent as to why Fulmer would have
departed fromn accepted procedure In this instance I credit Brinker, how-
ever, that In 1976 ' urdock ounce suggested that he fudge on the air stan-
dard, ai this ltelinorns is undisputed
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DOT inspector reports show that there was no water on the
bridge on Saturday, July 30, because the tanker had not
been hooked up, and that the inspector told Brinker to
hook it up; and that on Monday, August 1, the concrete
was still dry. Murdock and Fulmer met the next day, Au-
gust 2, 1977, to discuss the matter, and Fulmer suggested
that Murdock put someone competent on the job as cure-
man and take better care of the cure.' Murdock thereupon
relieved Brinker from cure duty, and Brinker resigned as
concrete technician, reverting to regular laborers' work.
Two days later, on August 4, Brinker warned two car-
penters not to touch a ramp, which must be moved during
the process of pouring the parapet walls of a bridge, as
moving the ramp was laborers' work. The carpenters re-
ported Brinker's conduct to Murdock. According to Mur-
dock, it was because Brinker had issued this warning with-
out bringing the matter to his or Johnson's attention, and
because of Brinker's failure to cure over the weekend, that
Murdock thereupon sent for the business agent to inform
him Murdock was discharging his steward. When Brinker
called the union hall about his dispute with the carpenters,
he was informed that Murdock had already sent for the
business agent and that Assistant Business Agent Carmen
Piccirillo was on his way to the jobsite. Murdock met with
Brinker and Piccirillo that afternoon. Murdock related
Brinker's shortcomings on the bridge cure, accused him of
harassing the carpenters, and called him a troublemaker.
Piccirillo persuaded Murdock not to discharge Brinker, but
Murdock warned that if Brinker stepped out of line again
he would be discharged. Although resolved either at this
meeting or later, the record does not show how the work
assignment dispute was settled.'
Two or three weeks later, at the time of the first layoff of
the season, Murdock again notified the Union of his intent
to fire Brinker, and General Foreman Johnson informed
Brinker of his discharge for using the telephone too often,
"causing to[o] much trouble, stirring up the men and work
stoppage." Murdock and Johnson explained that Brinker
was observed leaving the job several times to use the tele-
phone, at least once without permission; although Brinker
told Murdock that he was calling on "union business," the
Union subsequently failed to support Brinker's claim that
all the calls were made to the Union. Johnson and Mur-
dock also testified that Brinker spent working time writing
in a notebook, conduct which is unexplained in the record.
Murdock also said that he timed Brinker on August 18,
talking with two other laborers for 18 minutes, and that
Brinker told him he was explaining the re-bar process to
the employees, but that re-barring was not Brinker's re-
sponsibility since he had quit as concrete technician. Al-
though Brinker and employee Barry McGuire credibly tes-
tified that Brinker was carrying out an assignment given
him by one of the foreman, there is no indication that Mur-
dock was aware of the assignment. Brinker filed a griev-
Murdock's and Fulmer's testimony.
Murdock's and Brinker's testimony.
Variances between the accounts of this meeting given by Murdock and
the union representatives have been resolved in favor of Murdock. Brinker's
and Piccirillo's accounts were incomplete, and I find, inaccurate in some
respects; Brinke confused a subject of the meetin with his water and out-
house complaints.
ance over his discharge, and was reinstated, without back-
pay. after a hearing by an arbitration panel, on September
Murdock conceded that Brinker's work was satisfactory
after his reinstatement, but testified that he felt unjustly
treated by the arbitrators and that he had got a raw deal
because Brinker's incompetence on the cure was sufficient
grounds for discharge and that Brinker had lied at the
hearing, and when Murdock asked him why, Brinker re-
plied, "It's all under the bridge." l' Murdock admitted stat-
ing in the presence of Teamsters steward Michael Mukina,
in early September, that he was still determined to get rid
of Brinker. Murdock also told Johnson in a conversation
on September 15, partially overheard by Mukina, that
there should be a way to blacklist someone like Brinker,
"that don't want to do what they are told to do and do
their work right." "
I also find that one day in late September, Murdock told
Mukina that the Teamsters business agent had been out to
see him about an operating engineer's moving Mukina's
truck, and asked, "Did you call the union?" When Mukina
denied it, Murdock said, ". . . I don't like unions and I
never did and I never will." 12 Murdock also conceded that
toward the end of September, he got into a heated discus-
sion with Brinker over Murdock's right to send the men
home on a rainy day, Brinker threatened to call the Union
and Carmen Picirillo about it, and Murdock told Brinker
to "Fuck the Union and Carmen both." 13
About October 14, Business Agent Rzomp informed
Brinker that he would no longer be the steward. A week
later Brinker was laid off.
Johnson testified that employees were selected for layoff
by mutual agreement between him and Murdock and that
his reasons for selecting Brinker at this time were because
he "hadn't been coming to work regularly. He hadn't been
coming to work on time, and we had to get down to a few
men, and we had to keep the few men that were more
regular." Murdock concurred that Brinker was frequently
late.'4 The reasons Murdock gave for selecting Brinker for
layoff were that "I had attempted August 19th to discharge
the man and failed. All the reasons that led to that dis-
charge were still on my mind. Then he became eligible for
layoff, when he was removed as steward by Mr. Rzomp,
these factors all had an influence on it. Also, Mr. Brinker
After Brinker's reinstatement, Business Agents Rzomp and Piccirillo
told him to take his complaints "up through the ranks" beginning with
immediate supervision and then to the general foreman before going to the
superintendent. After that, Brinker did not call the business agents to the
jobsite. although, as found below, he once threatened to do so.
)As found above. Brinker's testimony at this heanng and before the
arbitrators as to what Pennsylvania DOT Project Engineer Fulmer allegedly
told him on July 28. was not true.
1 Based on Murdock's and Johnson's testimony. Mukina's testimony that
the statement was made in a conversation about temperature control is not
credited, as Murdock explained that temperature controls were not a prob-
lem in September.
Based on Mukina's testimony. Murdock could not flatly deny this testi-
mon', and he admitted "There are occasions when lunions] are not my best
friend."
1i I find that Brinker was again confused when he said that Murdock
made this remark in connection with Brinker's earlier complaints about
water and outhouses.
14 Although no attendance records were presented, this testimony by
Johnson and Murdock was not disputed.
846
SWANK CONSTRUCTION COMPANY
was, in my estimation, and Mr. Johnson's, one of the least
productive of the 13 remaining laborers. It was out policy
with laborers and carpenters to keep the better ones for the
end of the job." His judgment of Brinker's productivity,
he said, was based on his observation which revealed
Brinker to be "number 13 of the 13 in all areas related to
laborers' work . . . doing the worst job." He denied that
Brinker's agressiveness as steward was a factor in his selec-
tion for layoff.
B. Conclusions
Murdock's question of truckdriver Mukina, "Did you
call the union?" was not, in my opinion, the kind of em-
ployee interrogation designed to identify union adherents
so that they can be targeted for coercion or discrimination.
Even though Murdock chose this same conversation as an
occasion to express his frustration amounting to hostility
toward unions, I do not think it can reasonably be said 'hat
Mukina was intimidated by the question. After all, it would
have been routine for Mukina, as the Teamsters steward, to
raise an issue over an operating engineer's driving a truck,
and it seems unlikely that such a question would inhibit
Mukina from performing his duties as steward in the fu-
ture. Moreover, Murdock's spoken wish to blacklist Bnnk-
er, I have found, was related solely to Brinker's work per-
formance and not to his union or steward's activities. In all
the circumstances, therefore, I find that a preponderance
of the relevant evidence fails to establish that Superinten-
dent Murdock coercively interrogated employees or threat-
ened to blacklist an employee in order to discourage union
or protected activities, and I conclude that these allega-
tions should be dismissed.
With regard to the Brinker allegation, this is not the
clearest of early layoff cases, inasmuch as Brinker was laid
off about the same time in 1977 as he was in 1976, as
several laborers were retained longer than he on both occa-
sions, and as there is no hint as to when in 1977 he would
have been laid off if not on October 21. However, more
than twice as many laborers were retained after Brinker's
layoff in 1977 than were retained longer than he in 1976,
and Respondent appears to concede that he would rot
have been laid off when he was if Respondent had had
nothing against him. We shall take it as settled then that
his layoff was expedited in the fall of 1977, and the ques-
tion is why.
The credible evidence shows that Respondent had many
valid grievances against Brinker's performance during the
1977 season-spending Company time on non company
non union activities, being insubordinate to the general
foreman, absenteeism, tardiness, and low productivity-
but I am convinced that Respondent voiced these griev-
ances as makeweight, and that it would not have selected
him out for these reasons alone.
Therefore, did the vigor with which Brinker pursued his
duties as Laborers' Union steward play a part in the deci-
sion to select him, as the General Counsel insists? Brinker
brought complaints to Murdock on six different subjects,
and Murdock expressed himself in a forcefully hostile
manner on the last occasion. And yet Murdock voiced
equal hostility to steward Mukina over a Teamsters com-
plaint without selecting Mukina for early layoff. Moreover,
there were a total of four stewards on the jobsite in addi-
tion to Brinker and all of them brought complaints to Mur-
dock, some more than Brinker, without selection for early
layoff as far as the record shows. Calling an employee a
troublemaker and citing him for stirring up the men usual-
ly justifies the inference that these terms actually referred
to union or concerted activities. Here, however, the terms
seem applicable to Brinker's insubordinate and epithetical
attitude toward the general foieman, so that neither infer-
ence is really warranted over the other. I have carefully
considered the fact that it was a steward's complaint by
Brinker which triggered Murdock's attempt to discharge
him in August. I am compelled to conclude, however, in
view of the fact that most of Brinker's complaints were
resolved, including the triggering complaint, despite its
being raised in the context of Murdock's being thwarted in
his effort to discharge Brinker, that it was the procedure
followed by Brinker in issuing a warning directly to the
carpenters not to touch the ramp before taking the dispute
up with supervision which was the true motivation, and not
the dispute itself which was similar to the Teamsters dis-
pute which had no ill effects. It is clear that the Laborers'
Union officials were of like view in disapproving the proce-
dure followed by Brinker on this occasion, as the)' af-
terwards instructed him to take his complaints up the ranks
of supervision as provided in the contract. In such circum-
stances, and where, as here, the employer runs a union
operation, it is not interference with a protected activity
nor anti union discnmination to attempt to discipline an
employee for failing to follow the contract procedure in the
pursuit of grievances. ' 5
I find, as contended in part by both Murdock and the
General Counsel, that the operative factors in Brinker's
October layoff were the same as those in his attempted
August discharge. It is clear that Murdock, frustrated in his
efforts to discharge Brinker in August while he was the
Laborers' Union steward, seized the first opportunity after
he was relieved of his stewardship (through no doing of
Respondent) and therefore more vunerable to discipline
(the Union has made no effort on his behalf this time as far
as the record shows, Brinker having filed the charge in this
case himself) to rid himself of Brinker for the same reasons.
As Murdock said, he felt unjustly treated by the arbitrators
and that he had got a raw deal because Brinker's incompe-
tence on the cure was sufficient grounds for discharge, and
that Brinker had lied at the arbitration hearing. As
Brinker's negligence posed a danger to the structural
soundness of the bridge deck and risked the added expense
of ripping out and relaying the concrete, it was, in my
opinion, valid cause for discharge or layoff. 6
The General Counsel argues that Brinker was selected
for layoff because he took his discharge to arbitration. But
that is too simplistic. This is not a case where an employer
A ..,..oated I a/trla.n ( orlpaniev d h a oht Hilton 14r Inn. 221 NI .RB
10i)8 (1975) Rap£kp,,rt LEhirha., tIn, 224 NI RB 1558 (1976)
No ctorrelatlon i a s ho n hctIeen the piesible effect, of BrinkeLc
neghllcnce in carraing out instruLitlan` from both supervlsion and PennN)l
aani d M1urdock', past uggeslion that Brinker fudge on the air
standard Nor does the fact Ihat improper curing is a problen throughout
the Industr' excuse Brinker's conduct.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retaliated against an employee for participating in the
grievance-arbitration system such as those to which the
General Counsel has called my attention. This employer
resented the arbitration award because it felt the award
was unjust and was procured by a falsehood. The employer
retaliated against Brinker not because he invoked the griev-
ance-arbitration procedure, but because he bypassed the
contract procedure in the jurisdictional dispute matter and
because he neglected his responsibilities, which, as far as
the NLRA is concerned, it had a right to do.
Accordingly, I find that a preponderance of the credible
evidence does not support the allegation that Brinker's lay-
off was violative of Section 8(a)(l) or (3), and I conclude
that it should also be dismissed.
Upon the foregoing findings of fact and conclusions of
law and the entire record, I hereby issue the following rec-
ommended:
ORDER '7
The complaint is dismissed.
| In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
848