Allied Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1969

175 N.L.R.B. 133 (N.L.R.B. 1969)

ALLIED CHEMICAL CORPORATION
Allied Chemical Corporation , Wilputte Coke Oven
Division and William Waters. Case 13-CA-7957
March 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 13, 1968, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in part, remanded and withdrawn in part,
and that the settlement agreement in this case be
reinstated, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, together with a supporting brief, the
Charging Party filed a brief in support of the
exceptions, and the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing, and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations,' with the limited modification in
the Order indicated below.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the
National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial
Examiner , except that the Board orders that the
complaint be, and it hereby is, dismissed in its
entirety, and that the settlement agreement in Case
13-CA-7957 be, and hereby is, reinstated.
TRIAL EXAMINER'S DECISION
JERRY B STONE, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was tried pursuant to due notice on October
21, 1968, at Chicago, Illinois
'We find no basis for concluding, as alleged by the Charging Party in his
brief, that the Trial Examiner's conduct of the hearing, his rulings, or his
Decision, were attended by bias or prejudice against the Charging Party
Considering the state of the record as a whole, we have no alternative but
to sustain the Trial Examiner's recommendation that the complaint be
dismissed
133
The original charge and a first amended charge were
filed on July 11 and September 5, 1967. The complaint in
this matter was issued on August 30, 1968.
The critical issue in this case is whether the
Respondent, subsequent to February 14, 1968, refused to
recall William Waters because of his nonmembership in
the Union at the time of Respondent's refusal to hire
Waters on or about July 11, 1967, and/or in an attempt
to frustrate concerted protected activities on the part of
other employees The issue is thus whether the
Respondent has violated Section 8(a)(3) and (1) of the
Act.
All parties were afforded full opportunity to participate
in the proceeding. The General Counsel and Respondent
have filed briefs in this matter which have been
considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:'
FINDINGS OF FACT'
1. THE BUSINESS OF THE RESPONDENT
Allied Chemical Corporation, Wilputte Coke Oven
Division, the Respondent, is, and has been at all material
times herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of New York,
and has maintained its principal office at 40 Rector
Street, New York, New York. The instant proceeding
involves only the Respondent's construction project
located on the property of the Wisconsin Steel Company
at Chicago, Illinois.
At all times material herein, Respondent has engaged
in the engineering and construction of coke ovens
throughout the states of the United States, including its
location at the Wisconsin Steel Company at Chicago,
Illinois. In the course and conduct of its business
operations during the calendar year, a representative
period, Respondent purchased and caused to be delivered
directly from points outside the State of Illinois to its
Illinois construction site at the Wisconsin Steel Company,
materials and supplies in excess of $500,000.
In the course and conduct of its business operations
during the past calendar year, Respondent has rendered
services valued in excess of $500,000 to the Wisconsin
Steel Company, an interstate corporation, at its Chicago,
Illinois, location.
Considering the foregoing, it is found and concluded
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Although not placed directly in issue by the pleadings,
and although the testimony did not reveal the precise
name of the Union involved, the evidence overwhelmingly
reveals that the employees performing bricklaying work,
other than Waters, were members of a "bricklayers"
union and that their "cards" were checked on the job The
evidence also clearly reveals that on July 11, 1967, that
'The credibility resolutions made herein are based upon a composite
evaluation of the demeanor of the witnesses and the logical consistency of
the evidence
The facts are based upon the pleadings and admissions therein,
clarification of pleadings narrowing the issues, a stipulation of the parties,
and the credited testimony of Burke, Waters, Daniels, and Norman
175 NLRB No. 21
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waters was refused employment by the Respondent
because he was not a member of said "bricklayers" union
and was not cleared by said "union," that the "union"
had a union steward on the job who represented the
"union" in its dealings with the Respondent with respect
to the question of "union membership" or clearance of
applicants or employees, and that other employees on the
job who were union members around July 24, 1967,
engaged in a work stoppage in protest of Waters'
employment. It is thus clear that the Union attempted to
impose a condition of employment of union membership
from the initial date of employment at Respondent's
jobsite
told Waters to bring Wheadon along.
On July 24, 1967, Waters and Wheadon reported for
work at Respondent's jobsite and were employed The
next day the union members, bricklayers and ironworkers,
on the job walked off in protest A short time later one
ironworker spoke to Waters and tried to question Waters
about his "union membership." Waters firmly told the
ironworker to leave him alone. The employees returned to
work, and Waters continued his employment with the
Respondent without significant incident until February 14,
1968.
The August 1967 Layoff; the First Amended Charge
III THE ALLEGED UNFAIR LABOR PRACTICES
Preliminary Issues; Supervisory Status
At all material times herein, the following named
persons occupied the positions with the Respondent
Employer following their respective names, and have been,
and are now, supervisors and agents of the Respondent
Employer, acting on its behalf, within the meaning of
Section 2(11) and (13) of the Act Don Norman, general
superintendent of construction, and Thomas Burke,
bricklayers general foreman.
Alleged Unfair Labor Practices ; Presettlement -
September 29, 1967
Events of July 1967
On July 11, 1967, William Waters, Samuels, and
Wheadon appeared at Respondent's Chicago jobsite and
applied for work There they met Bricklayers General
Foreman Burke and several union stewards. There were
questions by the union steward relating to union
membership and clearance. Samuels, who had a union
card, was employed. Waters and Wheadon were not
employed because they were not union members and not
cleared for employment. Waters attempted to explain that
he had been a union member but had refused to pay a
union fine and therefore was not now a union member
The union steward, Vecellio, told Waters in effect that his
problem was with the Union, and that he didn't have
anything to do with it. The Bricklayers general foreman
refused to hire Waters because he was not a member of
the "bricklayers" union.
Thereafter on July 11, 1967, Waters filed the original
unfair labor charge in this case Dunng the week of July
21, 1967, Hatfield, a superintendent for the Respondent,
telephoned Waters and asked him if he were still
interested in employment with the Respondent. Waters
told Hatfield that he was interested in employment with
the Respondent Hatfield told Waters that the Respondent
would be happy to process his application. Waters told
Hatfield that the Respondent owed him backpay for not
having employed him on July 11, 1967, and that he would
come to work if so compensated. Hatfield asked Waters
to come out to the Company the next day Waters told
Hatfield that he would like to check with the National
Labor Relations Board as to what he should do. Hatfield
told Waters that it would be all right for him to report to
work on July 24, 1967. Waters agreed to do so. Waters
told Hatfield that Wheadon, his nephew, had also applied
for work on July 11, 1967, and had not been employed for
the same reasons, that Wheadon had not as yet filed
unfair labor practice charges but could do so. Hatfield
On August 12, 1967, the Respondent had a layoff.
Waters was one of the employees laid off. Waters
returned to work later. However, on September 5, 1967,
Waters filed the first amended charge in this case alleging
additional acts of discrimination.
The Settlement Agreement and Related Acts
Thereafter on September 29, 1967, the National Labor
Relations Board, by its Regional Director, Ross M.
Madden, Region 13, approved a unilateral settlement
agreement whereby Waters was made whole for any loss
of pay suffered as a result of his not being hired on July
11, 1967'
On or about January 19, 1968, said Regional Director
notified the Respondent that pursuant to the terms of the
settlement agreement the case was closed, conditioned
upon continued observance of said settlement agreement.
After Settlement Conduct ; The Events of February
1968
On or about August 20, 1968, said Regional Director
notified the Respondent he was withdrawing his approval
of said settlement agreement due to violations of said
agreement, and that a complaint would issue based upon
the unfair labor practices which occurred both prior and
subsequent to said settlement agreement.
In the meantime on or about February 14, 1968, the
Respondent, through its general superintendent of
construction, Don Norman, and its bricklayers general
foreman, Thomas Burke, laid off Waters. At the same
time the Respondent laid off about half of its bricklayers.
There is no contention and no evidence to the effect that
the layoff of Waters was discriminatory in nature.
On February 14, 1968, Waters, when he was informed
by an employee of Respondent that he was being laid off
as of that date and was offered his paycheck, refused to
accept the tendered paycheck.
On February 15, 1968, William Waters reported for
work at Respondent's jobsite where he had been
employed. Respondent's timekeeper attempted to hand
Waters his paycheck at the gate entrance to the jobsite.
Waters again refused his paycheck and proceeded to work
at the jobsite.
On February 15, 1968, the bricklayers on the fob (all of
whom were union members) walked off the job. On
February 15, 1968, the Respondent notified Wisconsin
Steel Works (the jobsite involved) that Waters had been
'As the facts show, Waters had been offered employment and had gone
to work on or about July 24 , 1967 The settlement agreement and "notice"
attached thereto indicated a remedy for the alleged July 1 1 , , 1967, conduct
Waters was not a signatory party to this settlement agreement
ALLIED CHEMICAL CORPORATION 135
laid off and requested Wisconsin Steel Works to exclude
Waters from the jobsite.
On or about February 16, 19, and 20, 1968, Waters was
precluded from entering the jobsite by local police officals
and plant security personnel for Wisconsin Steel Works
Sometime after the February 14, 1968, layoff by
Respondent, all bricklayers laid off, except Waters, were
recalled to work. All of the bricklayers recalled were
union members.
Motivation as to Respondent's Failure to Recall
Waters after February 14, 1968
The critical issue in this case is the motivation of the
Respondent in the failure to recall Waters to work after
the February 14, 1968, layoff. The General Counsel
contends in effect that motivation to discriminate against
Waters should be inferred from Respondent's conduct in
July 1967 and from the facts revealing union opposition to
Waters in July 1967 and in February 1968 The
Respondent contends that its motivation was of a
nondiscriminatory nature, that it refused to recall Waters
because of his insubordination in refusing to accept his
February 14, 1968, layoff and in continuing to work and
trying to work contrary to layoff instructions. Norman,
for the Respondent, testified to the effect that it was his
decision to refuse to recall Waters after the February 14,
1968, layoff and that his only reason for such refusal to
recall Waters was Waters' insubordination in refusing to
accept his February 14, 1968, layoff. Norman's demeanor
as a witness was that of a frank, forthright, and truthful
witness
The facts do reveal discriminatory motivation on the
part of the Respondent with respect to the refusal to
employ Waters on July 11, 1967. In this refusal, Burke,
however, testified to the effect that he was not
knowledgeable as to the law prohibiting discriminatory
consideration in the employment of employees on July l I,
1967 1 do not credit his testimony to such effect. I find it
hard to believe in this age and time that he did not have
some realization on July 11, 1967, that it was illegal to
discriminatorily consider employees for employment on
the basis of union membership or lack thereof. Burke
further testified, and I so credit, that after July 11, 1967,
company officials and lawyers informed him of the legal
prohibitions on discriminatory considerations in the
employment of employees. The conduct of the Respondent
in making amends for its July 11, 1967, conduct and in
continuing to employ Waters thereafter to February 14,
1968, is consistent with this testimony.
Considering all of the foregoing, I am convinced that
all of the facts including Respondent's conduct of making
amends for the July 11, 1967, conduct, Waters' conduct
on February 14 and the days immediately following, and
Norman's truthful demeanor negate the possible inference
of discriminatory propensity revealed in Respondent's July
11, conduct.' I conclude and find that Norman's
testimony, to the effect that he made the decision to
refuse to recall Waters after February 14, 1968, and that
his reason for refusing to recall Waters was because of
Waters' insubordination on and after February 14, 1968,
is to be credited and it is credited. Accordingly, I conclude
and find that the evidence does not reveal that the
Respondent has violated Section 8(a)(3) and (1) of the Act
by the refusal to recall Waters to work after February 14,
1968.
CONCLUSIONS OF LAW
1. Allied Chemical Corporation, Wilputte Coke Oven
Division, the Respondent, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The evidence does not establish that the Respondent
has engaged in unfair labor practices subsequent to the
unilateral settlement agreement approved by the Regional
Director for Region 13, National Labor Relations Board,
on September 29, 1967 Nor do the facts otherwise
establish the failure of the Respondent to comply with the
terms of said settlement agreement.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that
1. The complaint allegations insofar as they relate to
Respondent's conduct on and after February 14, 1968,
shall be severed from said complaint and dismissed.
2. The complaint allegations insofar as they relate to
Respondent's conduct, excepting for the conduct referred
to in 1, above, shall, after severance recommended above,
be remanded to the Regional Director for Region 13,
National Labor Relations Board, for appropriate
withdrawal of such complaint allegations.
3. The Regional Director shall reinstate the settlement
agreement of September 29, 1967.
'I have considered the fact that the other employees laid off and recalled
were union members