Bechtel Power Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 647 (N.L.R.B. 1974)

BECHTEL POWER CORPORATION 647
Bechtel Power Corporation ' and Robert Stanley, Jr.
and Charles Rhodes and Local 348 , Laborers ' Inter-
national Union of North America , AFL-CIO. Cases
19-CA-6598,19-CA-6602, and 19-CB-2108
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 14, 1974, Administrative Law Judge Joseph
I. Nachman issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed exceptions
and a supporting brief, and the Respondent filed an
answering brief.
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 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby order that
the complaint herein be, and it hereby is, dismissed as
provided for by the Administrative Law Judge in his
Decision.
I The name of the Respondent appears as amended at the hearing
2 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Administrative Law Judge: This pro-
ceeding heard before me at Richland, Washington, on April
10 and 11, 1974, with all parties present and represented by
counsel, involves an amended consolidated complaint' pur-
suant to Section 10(b) of the National Labor Relations Act,
as amended (herein the Act), which alleges in substance that
Issued January 15, 1974, based on charges filed with the Board in Case
19-CA-6598, the charge was filed August 20,1973, and amended September
4, 1973 in Case 19-CA-6602, the charge was filed August 22, 1973, and
amended September 4, 1973 in Case 19-CB-2108, the charge was filed
August 22, 1973, and amended September 4, 1973
Bechtel Power Corporation (herein Bechtel or Employer),
discriminatorily discharged and thereafter refused to employ
Robert Stanley, Jr., and Charles Rhodes (herein Stanley and
Rhodes), that Local 348 had caused or participated in such
discrimination by demanding and requiring that Bechtel dis-
charge and thereafter refuse to employ Stanley and Rhodes
and by refusing to dispatch them for work, all because they
had filed charges against Local 348, or participated in the
investigation of charges pending before the Board, and for
other arbitrary, irrelevant, or invidious reasons.' For rea-
sons hereafter more fully detailed, I find and conclude that
the General Counsel has failed to establish the allegation of
the complaint by a preponderance of the evidence, and that
said complaint should be dismissed in its entirety.
At the hearing all parties were afforded full opportunity to
present relevant and material evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs. Oral argument was waived. Briefs submitted by
the General Counsel and Bechtel have been duly
considered.' Upon the pleadings, stipulations of counsel, the
evidence, including my observation of the demeanor of the
witnesses while testifying, and the entire record in the case,
I make the following:
FINDINGS OF FACTO
Background
The setting of this case is at Richland, Washington, where
Bechtel is engaged in the construction of a Fast Flux Test
Facility (identified in the record as the FFTF project), which
is an experimental liquid metal cooler breeder reactor The
project requires the services of a large number of laborers who
work in crews under the overall supervision of field superin-
tendent Bechtel acquires these laborers basically from Local
348, pursuant to a contractually operated hiring hall binding
on Bechtel.' The procedure followed is that when Bechtel
needs laborers for the project, the field superintendent, or his
designee, telephones the union hall and makes known the
number of men it needs. If the Union has a sufficient number
of men available,' it dispatches them to the jobsite where
they are taken in charge by a foreman, who, after seeing that
2 As originally issued the complaint also alleged that Bechtel violated Sec
8(a)(2) of the Act, and Local 348 violated Sec 8(b)(1)(A) of the Act by
reason of the fact that Bechtel recognized, bargained, and entered into a
contract with Local 348, while Dail Hawkey, Eldon Busick, and Gilbert
Tharp were supervisors for the Company and held office with the Union
During the hearing, the parties entered into an informal settlement of this
aspect of the case so far as it related to Dail Hawkey, which settlement I
approved, and upon expiration of the posting period, an order dismissing
this aspect of the complaint will be considered At a later point in the case,
the General Counsel withdrew the allegations of the complaint insofar as it
related to Busick and Tharp Accordingly, no 8(a)(2) issue remains for
decision
7 Counsel for Local 348, after asking for and obtaining two extensions of
time for the filing of briefs, and making a third request which was denied,
filed no brief
4 No issue of commerce or labor organization is presented The complaint
alleges, and the answers of the respective Respondents as amended, admit
facts which establish these elements I find those facts to be as pleaded
s No issue is raised concerning the legality of the hiring hall provisions
6 If the Union does not have adequate men available to fill the order,
Bechtel is then free to hire from the street if it wishes to do so Such a
situation is not involved in this proceeding
215 NLRB No. 109
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the men are checked in by the timekeeper and provided with
the necessary safety information and equipment, are assigned
to the foreman in charge of a particular gang, who assigns and
supervises the men's work.
In the event a reduction in force becomes necessary, as is
at times the case, seniority is not the criteria for selecting
those to be retained. If the decision of management is to
reduce from shy 10 to 8 gangs, two entire gangs assigned to
specific areas of work where management concludes the work
has been concluded, or should be temporarily curtailed, are
laid off. On the other hand, if the decision is to reduce force
by some number of men less than a full crew, the formen and
general foreman agree upon the number and identity of the
men from the various gangs that will be laid off, and those
men are then terminated.
The work being performed at the time of the events here
involved was the construction of a large iron shell, referred
to in the record as the vessel, approximately half below and
half above the ground. From the top of the vessel to ground
level is approximately 250 feet. At the time here involved the
mobility within the vessel was impaired not only by the
heights involved, but by the many reinforcing bars for con-
crete embedded in the walls of the vessel. To enable men to
get from one point in the vessel to another many narrow
passages, catwalks, runways, stairs, and ladders are provided,
but on many of these the sheer drop could be several hundred
feet. Work was also being performed outside the vessel, but
this was almost entirely "backfill" and entailed the movement
of earth to the area around the retaining walls outside the
vessel, and tamping and packing it. All the "backfill" work
is performed at ground level, with power tools, and involves
no exposure to great heights, and involves much less physical
effort.
The record also shows that Robert Stanley was initially
hired by Bechtel on referral from the Union's hiring hall, on
May 30,1973, and worked until July 13, 1973, at which time
he was involved in a reduction in force.7 Stanley testified
that on the first day of his employment, he was assigned to
a foreman for work inside the vessel, and as he was about to
enter the vessel, the foreman asked if he had a fear of heights,
or any other medical condition that work in the vessel might
be dangerous to himself or others; that he replied that he had
suffered a heart attack about 7 weeks before, and didn't know
what effect that might have; that the foreman assigned Stan-
ley to duties inside the vessel, saying that he would check into
the matter, but returned about 45 minutes later, removed
Stanley from the vessel, and assigned him to backfill work,
which he performed until his layoff on July 13, 1973. There
is no evidence that Bechtel took any other action regarding
Stanley in the May 30-July 13 period.
Charles Rhodes was initially employed by Bechtel, on re-
ferral from the union hall, on August 9, 1972, and worked
until November 1972; was again referred in December 1972,
and worked until April 1973; again referred in April or May
1973 and worked until July 13, 1973, when he was included
in the reduction in force." Subsequent periods when Rhodes
1 This was Stanley 's first period of employment with Bechtel , and subse-
quent periods of employment will hereafter be referred to
8 The General Counsel conceded on the record that the July 13, 1973,
reduction in force was for valid economic reasons , but contends that Stanley
was employed by Bechtel are hereafter set forth. Rhodes
admits that on the first day he worked for Bechtel he was
asked by a foreman if he had a fear of heights, and that he
replied that he did not, but if he had his choice he would
rather not do it.9 There is no evidence that Bechtel took any
action against Rhodes because of fear of working at heights
prior to the layoff of July 13, 1973.
On May 11, 1973, Stanley and one Hayes filed charges with
the Board alleging a violation of the Act by the Union by
reason of the manner in which it operated the hiring hall
(Case 19-CB-2051 and 19-CB-2052). In the investigation of
these charges Rhodes cooperated with the Board, and fur-
nished it with an affidavit.10 By letter dated July 12, 1973,
the Regional Director dismissed the aforesaid charges for
lack of merit, and so advised the Union as well as the charging
parties. Union Agent Millsaps testified that the dismissal
letter was received by him on July 16, 1973, and his testimony
in that regard is uncontradicted.
THE CURRENT UNFAIR LABOR PRACTICES
Chronology of Events"
As heretofore indicated, Stanley and Rhodes were both
working at the project on July 13,12 and with a number of
other employees, was laid off on that date. The termination
slip given Stanley and Rhodes at the time showed that the
reason for the termination was "Reduction in Force," and
that they were eligible for rehire. Following their layoff, both
men signed the "out of work" register at the union hall, and
by August 13 had reached a point at or near the top of the
list. On August 10, Bechtel asked the Union to supply five
laborers who were to report for duty on August 13," and to
and Rhodes were discriminatorily selected for inclusion in the layoff The
contention is hereafter considered
9 Rhodes testified that although he respected heights, he had no fear of
heights, and had never told anyone that he did Foreman Seibert testified
that early in 1973, Rhodes and Summerlin, another employee in his crew,
were assigned, because the crane was inoperative, to deliver water within the
vessel, that based on a report made to him by Summerlin that Rhodes "froze
up" on a high walkway and would not move, he investigated and was told
by Rhodes that he was "scared" and that while he would do any other work
asked of him, he could not go where it was high According to Seibert, he
talked to Rhodes for a while, led him off the walkway and promised Rhodes
that he would not send him out there again it also appears that in connec-
tion with Bechtel's discharge of Rhodes in January 1974 for absenteeism, the
latter applied for unemployment benefits In passing on this claim the com-
mission stated
You have submitted medical evidence from you doctor who stated you
were advised to quit said employment and are restricted from working
at heights You are currently available for work with the restriction
mentioned above concerning working at heights
In the view I take of the case, it is unnecessary to resolve the conflict
10 The evidence shows that Stanley, Rhodes and Hayes are related to each
other as brothers- in-law
I I Except where otherwise expressly stated the findings in this chronology
are based on the testimony of Rhodes and Stanley Where a conflict with
other evidence exists, the conflict is resolved unless the resolution is deemed
unnecessary to a decision
12 This and all dates hereafter mentioned are 1973, unless otherwise
indicated
BECHTEL POWER CORPORATION 649
fill this the Union, on August 13, dispatched five men, includ-
ing Stanley and Rhodes. Stanley and Rhodes arrived at the
job about 10:30 a.m., and with the other employees reporting
that day, went to the timekeeper's office where they were
signed in and told to wait for the arrival of a foreman. In a
short while Foreman Butler arrived and told the men to
deposit their lunch buckets in the lunchroom, get hard hats
from the material room, and ear plugs from the nurse, and
when they had done so to meet him in an area designated as
building 5. Upon completing Butler's instructions the men
went to building 5, where they found Butler and Foreman
Riddle, who excused themselves and asked that Stanley and
Rhodes wait for their return. Shortly thereafter Butler and
Riddle returned with still another foreman who is not identi-
fied by name in the record. The unidentified foreman immedi-
ately pointed at Stanley and said, "You're the guy who had
the heart attack." Stanley admitted that the statement was
correct, but added that he had worked since then. The three
foremen then left. As it was then about noon, Stanley and
Rhodes went for their lunch and again returned to building
5. Shortly thereafter still another foreman came in and told
Stanley and Rhodes that they were wanted at the time shack.
At the time shack Stanley and Rhodes found Butler who
informed them that he had no work to which they could be
assigned because Stanley had suffered a heart attack, and
Rhodes had a fear of heights 14 Rhodes and Stanley were
then terminated, given termination notices, and a check for
3 hours' pay.15 The termination notice given Stanley states
that he was terminated because he was "physically not fit to
do this type of work due to heart trouble. Eligible for rehire
if physically fit for the job." The notice given Rhodes bears
the same legend.
Stanley and Rhodes left the jobsite about 2.30 p.m., going
directly to the union hall where they spoke with Millsaps who
appeared to be aware of what had occurred. Stanley asked
Millsaps to get a letter from the company explaining what it
meant by the phrase "if physically fit."16 Rhodes testified
that there was no discussion of a letter concerning him.
Rhodes and Stanley also asked where they would stand on the
out-of-work register, saying it was their understanding that
if a referral lasted less than 3 days, they would not lose their
place on the list Millsaps replied that he was having a meet-
ing of the Board that night, and until that meeting was held,
he would not know what the situation would be. Millsaps also
stated that if Bechtel did not want to hire them, he could not
understand why they said eligible for rehire, instead of not
eligible for rehire.
The following morning (August 14) Rhodes and Stanley
went to the union hall, but there were no requests for men.
13 The record is silent as whether or not Bechtel made any requests for
men between July 13 and August 10
14 My finding that Butler made this statement is based on the credited
testimony of Butler and Rhodes that such a statement was made by Butler
Stanley denied Butler made any statement as to why he could not put them
to work In view of the admission by Rhodes that such a statement was
made , I do not credit Stanley in that regard
15 Stanley and Rhodes both claim that under the contract they were
entitled to pay for 4 hours, and that Millsaps promised to collect for the
extra hour allegedly due them, but failed to do so I do not perceive that this
raises any issue before me
16 According to Stanley, Millsaps promised to get such a letter, but never
did
While there they looked at the out-of-work list, and observed
that Rhodes was number one and Stanley was number two.
The following morning they again returned to the hall for a
possible work assignment, again noting that their names ap-
peared at the top of the out-of-work list. When Millsaps
began his call for men, he announced a call from Bechtel for
work inside the vessel," and first called the name of Rhodes
who said that he would accept. Millsaps then said that he
could not dispatch him because Bechtel would only send him
back. Stanley and-Rhodes again returned to the hall on Au-
gust 16, but this time found their names at the bottom of the
out-of-work list. They said nothing to Millsaps at the time,
but when visiting the hall about 10 days later, asked Millsaps
why their names were at the bottom of the list when they had
not had a referral that lasted 3 days Millsaps replied that
under the rules of the hiring hall, if a man 's name is called
for a job that he is unable to take, his name goes to the bottom
of the list." On this occasion, according to Millsaps, he told
Stanley that if he got a proper certificate from his doctor,
Bechtel would in all probability accept him as an employee.
Stanley apparently obtained such a cetificate on September 4,
but there is no evidence that Rhodes obtained such a certifi-
cate, or if he did, when he did so
Stanley and Rhodes again went to the hall seeking work on
September 10.19 Apparently, by this time, their names had
again reached the top of the out-of-work list. At the call-of
the list, Millsaps announced that he had a request from Bech-
tel, but made no mention as to whether the work would be
inside or outside the vessel. Rhodes' name was called first and
he said he would take the job. The next called was Stanley
who replied the same Millsaps then called additional names
necessary to complete the order. Upon completion of the call,
Stanley went to the window to get his dispatch slip and asked
the clerk to get Rhodes his because he and Rhodes were
traveling together and wanted to get started as soon as possi-
ble. At this point Millsaps approached and said that he was
not dispatching Rhodes, but gave no reason. Millsaps then
asked if Stanley had the doctor's certificate, and when it was
produced he made a copy of it. Stanley then proceeded to the
jobsite and was put to work. About 3 days later Stanley was
called to Bechtel's office and asked for the doctor's certificate,
which he produced Stanley continued to work at Bechtel
from September 10, until his termination on November 27.
The termination slip given him at that time shows that his last
day of work was November 9, and gives the reason for the
termination as "of the past 22 working days, Mr. Stanley has
reported to work 10 days He has called in sick 12 days." The
slip also indicates that Stanley was eligible for rehire, and that
his termination required a replacement.20
On September 12, Rhodes went to the union hall and asked
Millsaps if he got a doctor's certificate would he (Millsaps)
17 Both Stanley and Rhodes testified that Millsaps had never theretofore
announced the location of the work to be performed
18 Millsaps testified that this was the rule, but the rules themselves, if such
exist, are not in evidence
19 Whether Rhodes or Stanley returned to the union hall at any time
between August 16 and September 10, and if so what transpired, the record
does not indicate
20 The record also indicates that Stanley was rehired by Bechtel on Janu-
ary 31, 1974, and terminated February 28, 1974, the reason shown on the
termination slip is "lack of work" and that he was eligible for rehire The
circumstances of the rehire in January 1974 are not developed in the record
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatch him to Bechtel. Millsaps replied, in effect, what can
one do about fear of heights? When Rhodes tried to argue
further, Milisaps replied that the matter was between Rhodes
and Bechtel.21
Analysis and Conclusions"
No citation of authority is necessary for the proposition
that the burden rests with the General Counsel to prove his
case by a preponderance of the evidence, and that failing such
preponderance the complaint must be dismissed for lack of
proof. Viewing the testimony in this case in the light most
favorable to the General Counsel, the best gloss that can be
put upon it (and I have considerable doubt that even that is
justified), is that the evidence gives rise to a suspicion of
discriminatory motive, but suspicion is not an adequate sub'
statute for proof by a preponderance of the evidence.
Assuming without finding that the Union and the Com-
pany knew of the pendency of the initial charges filed by
Stanley and Hayes, and that Rhodes had participated in the
investigation of those charges, there is a complete lack of
evidence of any communication between the Union and the
Company indicating that they collaborated or reached any
understanding, expressed or implied, to deny Stanley and
Rhodes' employment, either on July 13, August 13, or at any
21 On direct examination Rhodes testified that in the latter part of August
he had a conversation at the union hall with Assistant Business Agent of
Local 348, D D Reynolds, in which he asked if it was legal for Hawkey,
who was a general foreman for Bechtel, also to hold the office of secretary-
treasurer of the Local, that Reynolds assured him that it was entirely legal,
that he expressed disagreement with Reynolds' opinion and spoke of filing
charges with the Board, that Reynolds then asked him what he had against
Hawkey, and that he replied that he had nothing against him and in fact that
Hawkey was instrumental in getting him work into the Union, and that
Reynolds then stated that filing charges against Hawkey would be a "pretty
chicken s- thing to do after all Hawkey has done for you " In view of the
admission by Rhodes at the very end of his cross-examination , that Rey-
nolds' remark was made in a different context, I do not credit his testimony
on direct
22 Bechtel and Local 348 contend that in accordance with its decision in
Collyer Insulated Wire, 192 NLRB 837 (1971), the Board should defer
consideration of this case and require the parties to resolve their dispute as
provided in the Grievance and Arbitration provisions of the contract be-
tween them (G C 2a, art XIII) The General Counsel and the Charging
Parties argue, and I agree, that under the facts of this case deferral to the
arbitral process is inappropriate Plainly the contract provision referred to
contemplates that the Union will initiate and prosecute any grievance, and
that the individual has no standing to do so To sustain Respondent's posi-
tion would mean that the Union would be required to initiate and prosecute
a grievance against itself, and under the facts of this case it can hardly be
expected that the Union will act in a manner calculated to promote the best
interests of Stanley and Rhodes, as opposed to its own interests in such
circumstances, deferral is inappropriate The Seng Company, 205 NLRB 200
(1973), Kansas Meat Packers, 198 NLRB No 2 (1972)
other time. Nor can the Company's refusal to employ Stanley
or Rhodes on August 13, for the reasons it assigned, be
regarded as arbitrary or unreasonable . In addition , it must be
borne in mind that when Stanley acquired the necessary
medical certificate and came within reach on the out-of-work
list, he was dispatched by the Union, hired by the Company,
and worked without interference from the Union After
Rhodes went back to work for Bechtel in October 1973, there
is no evidence that the Union interfered in any way with his
further employment, and he was ultimately discharged by the
Company on January 14, 1974, for absenteeism. No evidence
was produced by the General Counsel to show that the al-
leged absenteeism was a pretext.
In short, I find that the evidence wholly fails to establish
the allegations of the consolidated complaint in that regard,
and that the same should be dismissed.
Upon the foregoing findings of fact , I state the following
CONCLUSIONS OF LAW
1. Respondent company is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2 Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent Company or
Respondent Union discriminated against Stanley or Rhodes
in the hire, tenure, or terms and conditions of their employ-
ment, and hence the allegations of the consolidated complaint
in that regard should be dismissed.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I
issue the following recommended:
ORDER23
The consolidated complaint herein, except for paragraphs
17, 18, and 20 to the extent that they relate to Dail
Hawkey,24 be dismissed.
23 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
24 That portion of the complaint having been informally settled by the
parties, will, upon proper motion, be dismissed when the notice posting
requirement in said settlement agreement provided for has been complied
with