B. T. Mancini Co.

National Labor Relations Board - Board Decisions

Apr 4, 1984

269 N.L.R.B. 869 (N.L.R.B. 1984)

B. T. MANCINI CO.
B. T. Mancini Co., Inc. and Thomas P. Haynes
North Slope Mechanical and B. T. Mancini Co.,
Inc., a Joint Venture and Thomas P. Haynes.
Cases 28-CA-7129 and 28-CA-7294
4 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 26 August 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent in Case 28-CA-7294 filed excep-.
tions and a supporting brief, and the General Coun-'
sel filed an answering1 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, and
conclusions 2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondent B. T. Mancini
Co., Inc., Phoenix, Arizona, and Respondent North
Slope Mechanical and B. T. Mancini, Co., Inc., a
Joint Venture, Prudhoe Bay, Alaska, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached no-
tices are substituted for those of the administrative
law judge.
The General Counsel also filed a motion to strike that Respondent's
brief on the grounds that the brief does not constitute exceptions within
the meaning of Sec. 102.46 of the Board's Rules and Regulations. Al-
though the Respondent's submission does not comply with the literal re-
quirements of Sec. 102.46, we find that the deficiencies are insufficient to
justify striking the brief. Accordingly, the General Counsel's motion is
denied.
a In the absence of exceptions, Chairman Dotson and Member Dennis
adopt the judge's recommended Order in Case 28-CA-7129 pursuant to
Sec. 10(c) of the Act. Accordingly, their action does not necessarily con-
stitute an endorsement of all the judge's findings and conclusions in that
case.
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 discharge employees who insist
on being paid wages in accordance with any col-
lective-bargaining agreement regulating their em-
ployment.
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 offer Terry L. Brewster and Thomas
P. HIaynes immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of etrnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify each of them, that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
B. T. MANCINI CO., INC.
APPENDIX B
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 discharge any employee because
he or she has filed charges with the National Labor
Relations Board.
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 offer Thomas P. Haynes immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
269 NLRB No. 150
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
NORTH SLOPE MECHANICAL AND B.
T. MANCINI CO., INC., A JOINT VEN-
TURE
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Phoenix, Arizona, on June 7,
1983, pursuant to two separate complaints issued by the
Regional Director for Region 28 of the National Labor
Relations Board. The complaint in Case 28-CA-7129
was filed on October 28, 1982, and the complaint in Case
28-CA-7294 was issued February 25, 1983. The two
cases were consolidated by order dated March 2, 1983.
They are based on charges filed by Thomas P. Haynes
on September 24, 1982, and January 20, 1983, respective-
ly. The first complaint alleges that B. T. Mancini Co.,
Inc. violated Section 8(a)(1) and (3) of the National
Labor Relations Act (herein called the Act) and the
second complaint alleges that Mancini and a joint ventur-
er, North Slope Mechanical (together called the Joint
Venture) violated Section 8(a)(4) and (1) of the Act.
Issues
There are two separate but related allegations. The
first case presents the issue of whether or not Mancini
discharged two employees, Haynes and Terry L. Brew-
ster, from a construction project in Tucson, Arizona, be-
cause they made a claim for a pay rate to which they
were entitled under their collective-bargaining contract.
The second case raises the question of whether or not
Haynes, dispatched by a union hiring hall to the Joint
Venture's project on the Alaska North Slope, was dis-
charged when its managers learned that Haynes was
seeking relief through the NLRB over the Tucson dis-
pute.
FINDINGS OF FACT
I. RESPONDENTS' BUSINESS
Respondents admit that B. T. Mancini, Inc. is a Cali-
fornia corporation doing business in California, Arizona,
and Alaska, and that North Slope Mechanical is a joint
venture with B. T. Mancini Co., Inc. on various con-
struction projects in Alaska. They further admit that
Mancini and North Slope Mechanical are engaged in the
building and construction industry in those States. Man-
cini's headquarters are in Santa Clara, California; it also
has an Arizona office in Phoenix. They also admit that
Mancini annually performs construction services valued
in excess of $50,000 in States other than Arizona and
California. Accordingly, Mancini and North Slope Me-
chanical admit and I find them to be employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II1. LABOR ORGANIZATIONS INVOLVED
B. T. Mancini Co., Inc. admits, and I find, Sheetmetal
Workers International Association, Local Union No. 359,
AFL-CIO to be a labor organization within the meaning
of Section 2(5) of the Act. The Joint Venture admits,
and I find, Sheetmetal Workers Local 72 also to be a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Tucson Incident
On September 1, 1982, sheet metal workers Haynes
and Brewster were dispatched by Local 359's Phoenix
hiring hall to work for Respondent in Tempe, Arizona,
at a construction site owned by G.T.E. Both were expe-
rienced journeymen sheet metal workers, each having
been employed in the industry for more than 15 years.
Their immediate foreman on the job was Roy "Bud"
Finch.
The collective-bargaining contract describes various
pay rates for sheet metal workers, principally depending
on the distance the job is located from a central point in
Phoenix. The Tempe job is located within so-called zone
I. Zones 2 and 3 are larger concentric circles. Each has
a correspondingly higher rate of pay.
At the end of the workday on Thursday, September 9,
Finch and Haynes had a conversation about an upcom-
ing job at an IBM site near Tucson. Brewster was
present during the entire conversation but did not par-
ticipate.' Brewster nonetheless testified, "Well, Bud
came up to Tom [Haynes] and he asked if we would like
to go down to Tucson and Tom said, 'Yes.' Bud said,
'Well, this is not my idea. This is coming from a little
higher above.' He says, 'If you guys go down to Tucson,
would you go down and work for Zone I pay?' Tom
stated, he said, 'No, we couldn't do that because if we
did we would be violating the contract and we could
have charges pressed up, you know, against us."'
Haynes says Finch asked him if he would go to
Tucson to work the IBM job for zone I pay. He says he
replied he would not do so because a brother union
member might file charges against him.
Finch testified they were to finish the G.T.E. job on
Friday and to start in Tucson on the following Monday.
He said, referring to Haynes and Brewster but not de-
scribing them separately: "They wanted to go. I told
them I couldn't take them because I couldn't afford to
pay them Zone 3 pay, but if they wanted to go down for
Zone i, then they could come down and go to work.
They agreed." On cross-examination when Finch was
asked if Haynes had referred to internal union charges
being filed against him for working at rates below those
required by the contract, he said Haynes "may have"
Brewster mistakenly testified the conversation occurred on Friday,
September 10.
870
B. T. MANCINI CO.
mentioned being fined for working outside the contract.
Finch could not recall what, if anything, Brewster said.
Local 359 operates two hiring halls, one in Phoenix
and the other in Tucson. Each hall maintains separate
out-of-work lists. If an individual is dispatched from the
Phoenix hall, a Tucson job would fall within the zone 3
category. However, if an individual is dispatched from
Tucson to work a Tucson job, he would fall within the
zone 1 category as Tucson, like Phoenix, is marked with
similar concentric circles delineating each pay zone. Ob-
viously, it would be more economical for a contractor
working in Tucson to utilize the services of an individual
dispatched from the Tucson hiring hall.
Both Brewster and Haynes deny Finch's assertion that
they had agreed to work in Tucson for zone 1 pay. Al-
though Finch wishes to place the onus for the suggestion
on the employees, he nonetheless agrees that he offered
the Tucson job to them at zone I pay. Moreover, Jack
Welborn, Mancini's Phoenix superintendent, testified
Finch told him that Haynes and Brewster had asked to
work on the Tucson IBM project. He says he advised
Finch the company could not pay zone 3 on that job be-
cause it had been bid at the zone I rate. Finch replied
the two had agreed to work for zone 1 pay.
According to Brewster and Haynes, rather than agree-
ing to work at the zone I rate, they neither agreed nor
disagreed. After their conversation with Finch they went
to Local 359's Phoenix office where they spoke with
three officials, including the business agent in charge of
the Tucson office who happened to be present. They
learned that Local 359 would indeed disapprove of their
working in Tucson at the zone 1 rate. However, it was
decided that, if the job were offered them, they should
go to Tucson and see what happened.
On the following day, Friday, the two were assigned
to a 1-day job at another location in Phoenix. At the end
of the day, all agree, Finch told them he would see them
on Monday in Tucson.
The two worked at the Tucson project through
Friday, September 24. On Thursday, September 23, they
received their paychecks for their first week's work in
Tucson. After work that day, aware they had not re-
ceived zone 3 pay, they made photocopies of their pay-
checks and cashed them. On the following morning,
prior to starting work they spoke to Finch. Brewster
opened the conversation saying, "Hey Bud, I'm a little
short on my check here." He says Finch asked what he
meant and he answered, "We didn't receive our Zone 3
pay." Brewster reports Finch becoming quite upset,
throwing his arms in the air and hollering, ". . . you
guys said you'd come down here for Zone 1 pay!" Brew-
ster replied, "No, we didn't." Brewster says Finch then
said, "Well, I guess you guys don't have a job here."
Haynes asked him, "Well, does that mean we are fired?"
Finch replied affirmatively. Haynes thereupon asked if
they could get a dismissal slip for being fired but Finch
replied he did not carry "such animals." He then went to
his briefcase and handed each of them a business card
containing the Company's Phoenix address, saying, "You
can pick up your checks here." Haynes and Brewster
then got in a truck and started to drive away. Remem-
bering Haynes had left some tools behind, they returned.
Haynes went to retrieve them. As Brewster waited,
Finch came up and said, "I hate to see this kind of stuff
go on." Brewster replied, "There must be some kind of
miscommunication between us 'cause we did not agree to
come down here for Zone I pay."' Brewster says Finch
told him he hated to see them go because he liked their
work.
Haynes corroborates Brewster in nearly every detail,
although he was not present during the latter conversa-
tion between Finch and Brewster.
Finch places a different emphasis on the conversation.
As before he makes no distinction between Brewster and
Haynes. He testified that when "they" made the claim
for zone 3 pay he told them "they" had agreed to work
for zone 1. He agrees he became very agitated, but says
he simply told them to check with the office, giving
them a business card containing the phone number. In-
stead of telephoning the office, the two walked away
saying they would not work. A short time later they re-
turned and asked him for termination slips but he did not
give them any because he was not terminating them. He
denies referring to the termination slips as "animals." He
testified: "The job was there if they wanted to work
under their agreement." On cross-examination he was
even more specific. He said the job was still there if they
wished to work for zone I pay. He amplified:
Q. (By Ms. Goldman): Mr. Fihch, when you told
those employees before they left that the job was
there if they wanted it at Zone I pay, did you also
tell them that you weren't going to keep them there
at Zone 3 pay?
A. I couldn't.
JUDGE KENNEDY: Well, did you tell them that?
Q. (By Ms. Goldman): Well, did you or didn't
you?
JUDGE KENNEDY: Did you tell them that?
THE WITNESS: I assume I did with the condi-
tions.
Clearly Finch believed he could not continue to
employ Brewster and Haynes at the zone 3 rate and that
if they insisted on that rate there could be no work for
them. Conversely, however, if they continued to adhere
to their "agreement" to work at zone I pay then the job
remained available.
Thus, although Finch denies firing them, and his
denial is somewhat weakly corroborated by job steward
Max Kendall who overheard part of the conversation,
those denials are belied by the above-quoted testimony.
Plainly, the employees wished to remain employed, but
they also wished to be paid in accordance with the rate
prescribed by the collective-bargaining contract. Finch,
under orders from Welborn, knew he could not eco-
nomically do so, and conditioned their continued em-
ployment on their abandonment of the pay rate set forth
in the contract. Thus, no matter how Finch or anyone
else now wishes to characterize it, Brewster and Haynes'
departures were involuntary for Finch could not employ
them at the contract rate. All testimony to the contrary,
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including that of Welborn and Kendall, is therefore re-
jected.2
Brewster and Haynes went to Local 359's Tucson
office but were unable to find anyone in authority. They
telephoned the Phoenix office explaining what had hap-
pened and the business agent there agreed to obtain the
pay differential. Later, in attempting to obtain both the
pay differential and a check for their remaining time,
they spoke with Welborn who asserted they had quit.
Ultimately all checks were issued and sent to Local 359's
Phoenix office.
B. The Prudhoe Bay Incident
Within a few days of the Tucson incident, Haynes
flew to Alaska to seek employment as a sheet metal
worker. He obtained some short-term employment and
was then referred by Local 72 in Fairbanks to a job with
the Joint Venture in Prudhoe Bay. He began working
there on approximately October 4. On one occasion,
while Haynes was employed, Respondent's president
Brooks Mancini visited the Alaska operation. Mancini
met Haynes at that time and later determined Haynes
was the same individual who had filed unfair labor prac-
tice charges over the Tucson incident. Mancini testified
that because he thought that matter had been resolved,
he was unconcerned about Haynes' employment. He be-
lieved the matter had been resolved on the basis of
paying Haynes the zone pay differential. Apparently he
was unaware that Haynes was pursuing backpay for him-
self and Brewster for the remainder of the IBM job.
During his employment by the Joint Venture, Haynes
on two occasions was made a foreman, although it ap-
pears that one of the principals of the Joint Venture,
Gary Fenton, was not fully satisfied with his foreman-
ship.
The testimony shows that the Joint Venture at the
North Slope was considered to be a "sub-tier" contrac-
tor. It appears that most employment in the Prudhoe Bay
area is governed by two major petroleum companies,
ARCO and SOHIO. These in turn offer work to various
oonstruction companies who often subcontract it. The
Joint Venture was one of the subcontractors. Workers
employed at Prudhoe Bay are required to live in camps
whose occupancy is controlled by the oil companies.
Without attempting to detail the cost of housing individ-
uals at these camps, it is expensive and the construction
companies must arrange in advance with the oil compa-
nies to determine the availability of housing. In addition
some of the contractors own and operate their own fa-
cilities for their permanent staff. North Slope Mechanical
has such a camp. The general practice of Prudhoe Bay
employers is to provide construction workers with 9
weeks of full employment, 10 hours per day, 7 days per
week, followed by 2 weeks' leave. On such a rotation
system, the Joint Venture provides employees with a
2 Welborn concedes that he was the one who determined that they had
"quit," saying he did so because whenever an employee leaves a jobsite
to go to the union hall such conduct is uniformly interpreted in the con-
struction industry as a "quit." Aside from whether or not his understand-
ing of industry practice is accurate, which I do not believe it to be, Wel-
born was not there and only had Finch's report to go on. If Finch report-
ed them as quitting, Welborn could only agree.
round-trip ticket from Prudhoe Bay to his point of hire.
In addition to normally scheduled "R & R," North Slope
contractors are governed by major oil company shut-
downs, such as often occur during December and Janu-
ary of each year, usually referred to as the Christmas
holiday. During that period nearly everyone leaves the
Bay and the facilities are manned by skeleton crews.
Little, if any, work is performed.
During December 1982, the Joint Venture was in the
process of finishing a job for H. C. Price Construction
Company and was hoping to obtain an immediate con-
tract with the construction subsidiary of the Boeing
Company, known as Boecon. Both Mancini's general
manager, George Wilson, and North Slope Mechanical's
president, Gary Fenton, testified they were hoping to get
the Boecon contract quickly so they could switch the
crew smoothly from the Price to Boecon job. According
to Haynes, at the December 5 Christmas party Wilson
told him he was to be assigned to the Boecon project
and could count on returning on January 1, 1983. On
December 12, shortly before Haynes left on leave,
Fenton told him there would be nothing happening
during the first week of January and that he should
return instead on January 10.
Later that day Haynes left the North Slope with a
round trip ticket between Prudhoe Bay and Fairbanks.
He then paid his way from Fairbanks to Phoenix where
he spent the next month. He says he was combining
some R & R with the Christmas holiday.
Fenton and Wilson testified that the Christmas holiday
did not begin until approximately December 18 and that
employees left for that holiday period between Decem-
ber 18 and 21. Fenton did not return until late January.
Wilson left at or about the same time as Fenton but re-
turned during the first week in January.
Prior to their leaving, both Wilson and Fenton testi-
fied they were concerned because the Boecon contract
had not yet been signed. As a precaution they drafted a
priority list of employees whom they wished to call back
first. No such list was offered in evidence and though
neither Wilson nor Fenton could recall who was on it,
they nonetheless testified that Haynes had been placed
either near its tailend or approximately three-quarters of
the way down.
While Wilson was on his vacation, he visited corpo-
rate president Brooks Mancini in his office in Santa
Clara, California. They discussed the upcoming Boecon
job, observing that the contract had not yet been signed
and noting the uncertainty over when that work would
begin. During the conversation Mancini mentioned to
Wilson that the Joint Venture had employed an individ-
ual "who was suing us in the lower 48." Wilson was sur-
prised to learn it was Haynes. Mancini asked Wilson if
Haynes was still working. Wilson replied he was not, but
was to be recalled for the Boecon job. Both Wilson and
Mancini testified nothing further was said regarding
Haynes. On January 5 Haynes, still in Phoenix, called
the Joint Venture's North Slope office and spoke to
Office Manager Flo Lancaster. Both agree he told her he
was coming to Fairbanks on January 8 and that she told
him be sure to call the office before he flew to Prudhoe
872
B. T. MANCINI CO.
Bay. Haynes arrived in Fairbanks as scheduled but never
telephoned. 3
On January 10, Haynes went to Local 72's hall and
then, using the return portion of his ticket, took a com-
mercial flight to Prudhoe Bay. At the Fairbanks airport
he met a coworker, Sedlac, who had been called to
return to work. At Prudhoe Bay Haynes telephoned
Wilson seeking transportation to the camp. He says
Wilson asked him what he was doing there, saying that
he had been "fired." Wilson contends he told Haynes he
had been laid off, not "fired." Haynes says he asked why
and Wilson replied that Brooks Mancini had told him to
do so because he was employing "a man who was suing
them in the lower 48." Wilson denies such a conversa-
tion occurred on the telephone, but agrees that a similar
conversation occurred later at the staff camp.
Transportation was arranged for both Haynes and
Sedlac. They went to Wilson's quarters. Haynes testified
he and Wilson had a second conversation in which the
contents of the telephone conversation were repeated.
He adds that Wilson asked why he had not told him
about the Arizona suit. Haynes replied that, if he had
told him, he would have been fired "a long time ago."
He says Wilson agreed. Haynes also says he attempted to
explain the merits of the Arizona dispute to Wilson, but
Wilson was not interested.
Wilson agrees that when Haynes telephoned him from
the airport he asked why he was there, but says he told
Haynes he had been "RIFed." He also asked Haynes
why he had not called before flying to the North Slope.
He says Haynes did not reply, but asked to come to talk
to him.
When Haynes arrived at Wilson's residence they had a
conversation in the living room. Wilson says he repeated
to Haynes that he had been RIFed and again asked him
why he had not called. Haynes replied he "thought he
had a job." Wilson told him he would have to return to
the union hiring hall in Fairbanks, but Haynes told him
he had no money. Wilson said he did not sympathize be-
cause Haynes had not followed the North Slope rules.
He asserted that no one "shows up" in Prudhoe Bay
without first calling because there is no place to live.
After discussing where Haynes might spend the night,
they had another conversation. Over a drink, Wilson
asked Haynes why he had not told him that he worked
for Mancini previously. At that point, he says, Haynes
asked, "Was that the reason I'm terminated-because I
have a lawsuit?" Wilson replied it was not. The conver-
sation then continued on a civil basis. Haynes left after
making some arrangements for lodging.
Wilson testified he was aware that Haynes had spoken
to Flo Lancaster on January 5 and was also aware that
she had told him to call before flying to Prudhoe Bay.
He says shortly after that call, acutely aware that the
Boecon contract had not yet been signed, he decided to
RIF Haynes. He told Lancaster to inform him when
Haynes called again. He says he directed Lancaster to
prepare a termination slip for Haynes and to mail it. He
does not know when or where it was mailed.
3 Haynes says he had his wife telephone but she mistakenly called the
camp instead of the office.
The termination slip, dated January 7, was not given
to Haynes until January 14 when he was at Local 72's
hall. A union official gave it to him.
When Wilson was asked how Haynes was expected to
know about his layoff if no one had communicated it di-
rectly to him, Wilson gave what I regard as an unsatis-
factory reply, "The minute that slip would hit the hall
the phones would ring all over wherever Tom was at to
let him know." Even if it had been sent on January 7,
there was little likelihood it would reach Haynes prior to
January 10 due to the intervening weekend.
Curiously, Respondent did not at any time cancel the
return portion of the round-trip ticket which Haynes had
in his possession. Lancaster testified that could have been
done. If it had been, no doubt the airline would not have
accepted Haynes' ticket and the cancellation would, at
the very least, have triggered an inquiry by him.
Wilson also testified that Haynes was eligible to return
to Respondent if Local 72 again referred him. Indeed,
Wilson says that when the Boecon job actually began a
week or so later, he put in an "open call" to the hiring
hall. He admits he did not call for Haynes by name be-
cause he was annoyed with him for having "falsified" his
employment application. The alleged falsification to
which he refers is a check mark in a box on the employ-
ment application indicating that Haynes had not worked
for Mancini before. The check mark is quite curious.
There are two other check marks also appearing on the
same document. The check mark in question is clearly
distinguishable from the other two. It is more practiced;
the other two are scrawls. Haynes testified he had left
that particular box blank. He is credited on the point for
it appears that someone added the check mark at a later
date.
Given Wilson's concession that Haynes "did a fine job
for us" it seems unlikely that a mismarked box would be
of significant concern to Wilson unless it was accompa-
nied by something more serious-knowledge of the
NLRB litigation in Arizona. Certainly, in November or
December Mancini himself had not been too concerned
with Haynes' presence. By then he knew Haynes was the
person who had filed charges over the Tucson incident
and knew, or should have known, that the box was
either blank or falsely marked. It was not until the
Christmas holiday that he became concerned enough to
remark on it to Wilson.
IV. ANALYSIS AND CONCLUSIONS
First, with respect to the Tucson incident I conclude
that the General Counsel has proven that Finch dis-
charged Haynes and Brewster because they insisted on
being paid at the zone 3 rate. The job had been budgeted
at zone I, but Finch, happy with Haynes and Brewster's
work, opted for known quality workmanship at the
lower rate, rather than risking unknown quality from the
Tucson hiring hall. It may be true that Haynes originated
the idea of going to work in Tucson. After all it was a
concrete employment opportunity about which he knew,
rather than the less certain opportunities offered by the
hiring hall. However, even if the suggestion of working
in Tucson originated with him, it does not follow that
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the suggestion of working for zone I pay also did. In
fact, it seems likely that if Haynes expressed an interest
in working in Tucson, Finch would respond with some-
thing to the effect that for "them" to do so "they"
would have to agree to work for zone I pay. Whatever
the case, Finch's assertion that they agreed to work for
zone 1 pay has not been proven. Moreover, even if it
were, such an agreement would be immaterial to this
action as it would not constitute a legal defense to the
discharges. The collective-bargaining agreement governs
wages, hours, and terms and conditions of employment
and an employee has no standing to waive those rights.
J. I. Case Co. v. NLRB, 321 U.S. 332, 336 (1944). See
also Certified Ad Services, 239 NLRB 156, 164 (1978).
Moreover, where such a contract is in effect it is an
unfair labor practice for an employer to negotiate direct-
ly with an employee regarding his wages or unilaterally
to change them. Thus, public policy clearly precludes
raising the defense of waiver in those circumstances.
In any event, Brewster and Haynes' testimony that
they never agreed to work for zone I pay is credible.
Brewster clearly did not; he simply stood silent during
the entire conversation. Finch could recall nothing said
by Brewster to dispute Brewster's testimony. Haynes tes-
tified, and Finch seems to concur, that he expressed
some opposition to the idea of working for zone I pay
because he feared intraunion charges might be filed
against him for doing so. Most likely, Finch simply saw
an opportunity to take advantage of their skills thinking
that they would see zone 1 pay as being in their best in-
terest. Brewster's total silence and Haynes' equivocation
cannot be seen as agreement work for zone I pay.
The fact that both employees reported the proposal to
their union officials and were told to wait and see is of
no moment either. Union officials, like anyone else, are
happy to see individuals employed. They did not want to
jeopardize their members' possible earnings. The two
had been properly referred to Mancini and the officials
could only assume that because Mancini's history of con-
tract compliance was good, it would continue. Thus,
Local 359's instructions to Brewster and Haynes cannot
be seen as an acquiescence to the proposal.
It is clear, therefore, based on Brewster and Haynes'
testimony, as well as Finch's admissions that he could
continue to employ them only if they agreed to work for
zone I pay, that Finch discharged them when they asked
for zone 3. Quite clearly they were seeking to obtain a
wage rate to which they were entitled under the collec-
tive-bargaining agreement and were discharged for insist-
ing on it. Such a discharge is a violation of Section
8(a)(1) of the Act. Bunney Bros. Construction Co., 139
NLRB 1516, 1519 (1962); B & M Excavating, 155 NLRB
1152 (1965), enfd. per curiam 368 F.2d 624 (9th Cir.
1966); H. C. Smith Construction Co., 174 NLRB 1173
(1969), enfd. per curiam 439 F.2d 1064 (9th Cir. 1971);
George E. Masker, Inc., 261 NLRB 118 (1982); NLRB v.
Interboro Contractors, 388 F.2d 495 (2d Cir. 1967). I
therefore find that the Respondent, B. T. Mancini Co.,
Inc., violated Section 8(a)(1) of the Act on September
27, 1982, when it discharged Haynes and Brewster.4
Second, with respect to the Alaska matter, it appears
to me that the General Counsel has made out a prima
facie case that Haynes was discharged on January 10,
1983, because of the NLRB action which had been com-
menced by him over his Tucson discharge. Haynes had
worked satisfactorily from his initial employment until he
left Alaska on his Christmas/R & R leave. Prior to his
leaving, he had been told by Wilson that he should
return on January 1. This was subsequently modified by
Fenton to January 10. Thus, he had been given a specific
reporting date. Moreover, he later complied with their
directive and policy to call before leaving for the job.
On December 5 he had called the office and had spoken
to Lancaster, telling her that he intended to return on
January 10 as scheduled. She did not tell him anything to
the contrary, except to suggest that he call again before
he actually left Fairbanks.6
Until Wilson met with Mancini in Santa Clara over the
Christmas holiday, Wilson had no particular complaint
regarding Haynes. Indeed, Haynes had been made fore-
man on two separate occasions and his workmanship was
considered to be quite good. It may be that Fenton did
not hold Haynes in the same regard as did Wilson, but
certainly Fenton was not dissatisfied with his work. He
had told Haynes to return on January 1.
This all is complicated to some extent by the fact that
the Boecon contract did not begin quite as quickly as the
Joint Venture had anticipated, but there are still some
unusual circumstances surrounding the decision to RIF
Haynes. First there is the discrepancy regarding the ter-
mination slip. It is dated January 7, but was not received
until a week later. Haynes was not given a copy of it on
January 10. Did it even exist on that date? Second, even
assuming that Respondent had no "duty," as Wilson
claims, to inform Haynes of his layoff, nonetheless it
seems likely that Respondent would have canceled the
return portion of his airline ticket. At the very least that
would have prevented a monetary loss; moreover, it
would have signaled Haynes to telephone again.
Finally, there is Wilson's confession that after the
Boecon contract had commenced he decided not to
recall Haynes by name even though he was entitled to
do so. He gave as a reason his conclusion that Haynes
had falsified his application form. However, there is no
credible proof that Haynes had ever falsified the form.
Instead, there is a very strong possibility that the form
had been altered by someone in Respondent's office.
Beyond that, the very subject matter of the alleged falsi-
fication, whether he had worked for Mancini before, is
directly connected to the theory of this case. Thus,
Wilson concedes that he was "disappointed" to learn that
Haynes had filed an NLRB action in Arizona. His disap-
pointment no doubt triggered his inquiry into Haynes'
4 It is unnecessary to determine whether this also violates Sec. 8(a)(3)
of the Act. Bunney Bros., supra.
5 His failure to call on January 10 is of no significance to the case.
According to Wilson, Haynes had already been discharged so his failure
to follow Lancasters' suggestion-or directive-to call could not have
contributed to Wilson's decision to discharge him.
874
B. T. MANCINI CO.
application form. That appears particularly likely given
Wilson and Mancini's testimony regarding their Santa
Clara conversation.
Even if Mancini did not give Wilson a specific direc-
tive to discharge Haynes, nonetheless his question to
Wilson was, "Is he still employed?" Wilson replied that
he was not, but was scheduled to be recalled when the
Boecon contract commenced. Wilson could easily have
interpreted Mancini's question as a subtle hint to discon-
tinue Haynes' employment. Thus, Wilson had ample mo-
tivation on his return to Alaska to find a way to avoid
recalling Haynes. He believed he was complying with
Mancini's wishes and was also personally "disappointed"
to learn of Haynes' NLRB suit. Whether or not he took
the next step and caused Haynes' application form to be
altered cannot immediately be discerned.
Even so, the circumstances raise a strong suggestion
that Respondent was seeking evidence to justify refusing
to recall Haynes. First, there is the odd timing of the ter-
mination slip. No doubt Haynes was not the most impor-
tant thing on Wilson's mind when he returned to the
North Slope; obtaining the Boecon contract was far
more important. Nonetheless, when Haynes telephoned
on January 5, Wilson's attention was once again drawn
to him. Given the fact that Haynes had been told to
report on January 10 and was calling from Phoenix to
say that he intended to do so, Wilson was forced to
decide what to do. He followed Mancini's subtle hint
and decided not to allow Haynes to return. The best
way to accomplish that was to lay him off. No doubt he
intended to do that orally when Haynes called again.
Unfortunately Haynes did not do so.
When Haynes actually appeared at the North Slope on
January 10 there is no evidence that the termination slip
even existed, for he was not then given a copy. That is
quite strange for there was ample opportunity to have
done so. Either Wilson or Flo Lancaster, the office man-
ager, could easily have given him one. Lancaster had
plenty of opportunity because to relieve his financial em-
barrassment, she bought Haynes' television set to give
him the air fare back to Fairbanks. In this regard, I note
the testimony of both Lancaster and Wilson was quite
vague about when the slip was prepared and mailed. I
assume therefore that the termination slip did not then
exist, despite its January 7 date.
Finally, Wilson's treatment of Haynes' situation there-
after is fully consistent with this scenario. Although he
had planned to recall Haynes for the Boecon project, he
did not do so despite being fully satisfied with Haynes'
workmanship. He had the right to recall Haynes by
name, but instead put in an open call to the union hiring
hall. The Joint Venture argues now that Haynes could
have accepted that open call and returned to work. That,
however, is quite doubtful. When an open call is made to
a hiring hall the union usually refers prospective employ-
ees from the top of the list. Having been terminated by
Respondent, Haynes, if on the list at all, would have
been near the bottom. The likelihood that Haynes would
have been immediately referred to the Joint Venture was
quite low.
Finally, I do not regard the delay in commencing the
Boecon contract to be of particular significance. Re-
spondent was in the process of recalling employees, in-
cluding Sedlac, and had made no credible showing that
it would not also have recalled Haynes. Although
Wilson and Fenton testified about a priority list with re-
spect to recalling employees, the list itself was never in-
troduced, or even offered, in evidence. Despite Fenton's
testimony that Haynes was three-quarters of the way
down the list, I am unable fully to credit the testimony
regarding either its existence or Haynes' place on it.
Indeed, Wilson told Mancini that Haynes was scheduled
to work on the Boecon project. Such a statement can
readily be interpreted as meaning that he was scheduled
to return with those on the top of the list rather than
those on the bottom. Absent the list, the testimony,
vague in any event, must be rejected.
Given all the circumstances I conclude that Wilson,
believing he was acting at Mancini's directive, decided to
discharge Haynes. He was responding to Mancini's ob-
servation that Haynes was suing the Company in Arizo-
na. Accordingly, I conclude that on January 10, 1983,
Respondent discharged Haynes because he had filed
charges with the National Labor Relations Board.
V. THE REMEDY
Having found that B. T. Mancini Co., Inc. and the
Joint Venture have engaged in violations of the Act, I
shall recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. The affirmative
action shall include an order requiring Mancini and the
Joint Venture to reinstate Haynes and Brewster to their
former jobs if they still exist, and to make them whole
for any loss of pay they may have suffered by reason of
the discrimination against them. Backpay and interest
thereon shall be computed on a quarterly basis and in the
manner prescribed by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). In addition, Respondent shall be required to
expunge from its records any reference to Haynes and
Brewster's unlawful discharges, to provide written notice
of such expunction to them, and to inform them that its
unlawful conduct will not be used as a basis for further
personnel action concerning them.
Based on the foregoing findings of fact and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, B. T. Mancini Co., Inc. and North
Slope Mechanical and B. T. Mancini Co., Inc., a joint
venture, are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent B. T. Mancini Co., Inc. violated Section
8(a)(1) of the Act when on September 27, 1982, it dis-
charged employees Terry L. Brewster and Thomas P.
Haynes because they insisted on being paid in accord-
ance with the rates of pay set forth in the collective-bar-
gaining contract governing their wages, hours, and terms
and conditions of employment.
3. Respondent North Slope Mechanical and B. T.
Mancini Co., Inc., a joint venture, violated Section
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(4) and (1) of the Act by discharging its employee
Thomas P. Haynes on January 10, 1983, because he had
filed charges with the National Labor Relations Board.
On these findings of fact and conclusions of law and
on the entire record in this case, I issue the following
recommended 6
ORDER
A. Respondent B. T. Mancini Co., Inc., Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they seek to en-
force the pay rates set forth in the collective-bargaining
contract governing their employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer Terry L. Brewster and Thomas
P. Haynes reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or any other rights
or privileges and make them whole, with interest, for
lost earnings in the manner set forth in the section of this
decision entitled "The Remedy," dismissing if necessary
any employees who replaced them.
(b) Expunge from Brewster and Haynes' personnel
records and all other files any reference to their dis-
charges.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Arizona office and jobsites copies of the
attached notice marked "Appendix A."7 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by Respondent authorized
representative, shall be posted immediately on receipt
and maintained for 60 consecutive days in conspicuous
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 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."
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that such notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director within 20 days from
the date of this Order what steps Respondent has taken
to comply.
B. Respondent North Slope Mechanical and B. T.
Mancini Co., Inc., Prudhoe Bay, Alaska, a joint venture,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they have filed
charges with the National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer Thomas P. Haynes reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to his seniori-
ty or any other rights or privileges and make him whole,
with interest, for lost earnings in the manner set forth in
the section of this decision entitled "The Remedy," dis-
missing if necessary any employee who replaced him.
(b) Expunge from Haynes' personnel records and all
other files any reference to his discharge.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this order.
(d) Post at its Alaska office and jobsites copies of the
attached notice marked "Appendix B."8 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by Respondent authorized
representative, shall be posted immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that such notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 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."
876