Bechtel Power Corp.

National Labor Relations Board - Board Decisions

Jan 2, 1979

239 N.L.R.B. 1139 (N.L.R.B. 1979)

BECHTEL POWER CORPORATION
Bechtel Power Corporation and Rodney Smith. Case
21-CA-16156
January 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On September 25, 1978, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. Respondent
filed a brief in answer to the exceptions and a sepa-
rate brief in support of the Administrative Law
Judge's Decision.
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
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.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT. Administrative Law Judge: This
matter was heard at San Diego, California, on April 4,
1978. The complaint, issued January 17, 1978, and based
upon a charge filed by Rodney Smith, an individual, on
November 4, 1977, alleges that Respondent, Bechtel Power
Corporation, has engaged in unfair labor practices within
the meaning of Section 8(aX3) and (1) of the National La-
bor Relations Act, as amended. Briefs have been submitted
by the General Counsel and Respondent.'
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
'The latter brief was submitted from Thelen, Marrin, Johnson & Bridges
by Kennedy P. Richardson of San Francisco, California.
FINDINGS OF FACT
1 JURISDICTIONAL FINDINGS
Bechtel Power Corporation is a corporation which main-
tains its principal office in San Francisco, California,
where it is engaged in engineering and construction work,
including the construction of a nuclear power facility at
San Onofre, California. It annually purchases and receives
goods and produc s valued in excess of $50,000 directly
from suppliers located outside the State of California. Re-
spondent admits, and I find, that it is engaged in commerce
and that its operations affect commerce within the mean-
ing of Section 2(6) and (7) of the aforesaid Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 230 and Local 250, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, are
and have been at all times material herein labor organiza-
tions within the meaning of Section 2(5) of the Act.
Il. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Respondent is engaged in the construction of a nuclear
power plant at San Onofre, California. It has its own em-
ployees doing some of the construction work and manages
or oversees work performed by various subcontractors at
the jobsite. One of these subcontractors is University Me-
chanical Corporation, herein called University. At issue
herein is the discharge of Charging Party Rodney Smith,
who was an employee of Respondent from on or about
July 7, 1977, until he was discharged on or about Novem-
ber 4, 1977.
B. Sequence of Events
Smith was a pipefitter who was referred to the job by
Local 230. His immediate supervisor was Foreman B. Wi-
ley, who did not perform manual work, and his main func-
tion was to assign work to the employees in his crew. If
Smith wanted to take some time off from work he asked
Wiley for permission, and this would promptly be granted.
Wiley also kept the employees' timecards and had an office
on the jobsite.
On November 3, 1977, Smith was working with a crew of
Respondent's pipefitters who were loading pipe onto a
crane. The pipe was to be lifted to the roof of a structure
identified herein as the rad-waste building. A member fo
the crew noticed employees of University uncrating a coo-
lant system. This member of the crew pointed out to Smith
that sheetmetal workers were doing the uncrating and that
this type of work was generally performed by pipefitters.
As a result of this, Smith walked over to the University
employees and asked one of them, Bullock, if he was a
pipefitter. Bullock replied that he was and Smith asked to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see his union book.2 Smith then asked an employee work-
ing with Bullock if he was a pipefitter, and the man identi-
fied himself as a sheetmetal worker. Smith told the two
employees of University that the work they were perform-
ing was work for pipefitters and sheet metal workers
should not be doing such work.
The employees of University replied that they were
working under the terms of an agreement allowing for a
composite crew of sheetmetal workers and pipefitters. This
agreement is not in evidence, but there is no challenge to
the existence of this working agreement. According to
Smith, he had observed other sheetmetal workers on the
crew working for University.
As the conversation with the employees of University
ended, the foreman at University, Wallace, approached
Smith and asked what the problem was. Smith promptly
asked why sheet metal workers were doing work generally
performed by pipefitters. Wallace mentioned the compos-
ite-crew agreement and advised Smith to discuss this with
his shop steward.
Smith started to do this and was leaving the area to
reach his shop steward, and an engineer employed by Re-
spondent, Dawes, spoke with Smith. Dawes acts as a liai-
son between University and Respondent and does direct
the work of the University crew. Dawes asked Smith for
the name of his supervisor, and Smith replied that it was
Wiley. According to Smith, Dawes then stated, "I will get
you for this." Dawes denied that he made this statement
and claimed herein that he told Smith to talk with the shop
steward. Dawes impressed me as an honest and forthright
witness, and I credit his denial.
Smith left the area in an effort to find his shop steward,
Claude Hailey. The office of Hailey is located in the tool-
room utilized by pipefitters. It took several minutes for
Smith to walk to the office of Hailey. Hailey was not there,
and Smith left a message for him. Smith next returned to
the rad-waste building and discovered that Hailey was
present. He asked Hailey why sheet metal workers were
doing the work of pipefitters when there were pipefitters
out of work who needed jobs. Hailey attempted to explain
to Smith the composite-crew agreement, referred to above.
Smith next protested that there were more sheet metal
workers on the University crew than pipefitters, and there
was a dispute between the two as to how many pipefitters
or sheet metal workers were on the crew of University.
Smith asked to see a copy of the composite-crew agree-
ment, and Hailey told Smith he would show it to him later.
Smith then returned to his work.
The crux of the problem is that the employees of Univer-
sity were scheduled to utilize a crane on the jobsite to un-
load an air-conditioning system that day. The record dem-
onstrates that this crane had to be booked in advance or
else it could not be used and, as a result, the employees of
University could not unload the air-conditioning system on
November 3.
On November 4, in the morning, Foreman Wiley spoke
with Smith and asked him to come to his office. Wiley and
the general foreman questioned Smith about what had
2 The constitution of the Union permits such a request, but I do not deem
this to be binding herein.
happened on the previous day and asked if he had attempt-
ed to stop the work of other employees. Smith replied that
he had only asked to see the union book of an employee.
Wiley then told Smith that Respondent wanted to dis-
charge him, but that the superintendent and the shop stew-
ard were attempting to prevent this. Smith returned to
work, but a short time later Hailey approached him and
stated that he was attemtping to negotiate with Gaylord
Booth, the labor relations representative of Respondent at
the jobsite. Some time later, Hailey came back and told
Smith that Respondent was discharging him. Shortly there-
after, Smith was referred to the office of Booth, who told
him that he was the person who had made the decision to
terminate him and that the reason he was being fired was
that he had stopped men from working. Booth said that he
had received this information from some superintendents.
The record does demonstrate that the employees of Uni-
versity did stop working when Smith intervened in the situ-
ation and that, as stated, the University employees were
unable to carry out the task assigned to them for that day.
According to Smith, he asked Booth if he was being dis-
charged for asking a man to display his union book and
Booth said that was true; Smith insisted that the bylaws of
his labor organization gave him the right to ask a man for
his union book. Booth responded that it was against the
policy of Respondent and that the bylaws of the Union
were not part of the contract between Respondent and the
Union. Smith insisted that the work stoppage was brief, but
Booth maintained that he was discharging him for stopping
work no matter how short a period of time was involved.
The termination slip of Smith indicates that he was eligi-
ble for rehire after 30 days. Smith did call Booth 28 days
after his discharge and asked to be reinstated, and Booth
refused to do so on the basis that 30 days had not yet
passed. Booth also testified, and ! find, that he told Smith
to go to the union hiring hall, and, if the Union so chose,
he would be eligible for rehire after the 30th day. Smith has
not since been reemployed by Respondent.
C. Concluding Findings
It is clear that Smith, in leaving the work area, acted
without the permission of his foreman and other supervis-
ors. The evidence is not in dispute that the workers in the
vicinity of this building, including the crew of Smith as well
as the crew of University, ceased work during the entire
time. The stoppage began when Smith first approached the
crew of University and ended some minutes later. As stat-
ed, the crew of University failed to achieve its object for
that day. A crane had been scheduled to lift the cooling
equipment to the roof of the power plant, and because this
crane was committed to a tight schedule to assist a number
of crews with different tasks the University crew failed to
meet their schedule, with the result that the project's con-
struction timetable was set back.
Booth testified, and I find, that workmen on the job did
not actually have a dispute. They may take exception to a
particular activity, and in that event they can then contact
their steward, who comes to Booth, and Booth handles the
dispute on a job of this nature.
The record also indicates that employees who wish to
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BECHTEL POWER CORPORATION
raise a complaint on company time can contact their stew-
ard in one of two ways. Initially, they telephone the stew-
ard from an extension near their work station, and second-
ly, they may visit the steward in person after obtaining the
permission of their supervisor. Neither was done here. In-
deed, the steward for the Union, Claude Hailey, confirmed
this. Hailey testified that when the steward is on the job-
site, as was the case here, it is the duty of the steward to
ascertain the union affiliation of employees. He further tes-
tified that when an employee has a complaint about job
assignments the normal procedure is for the employee to
telephone the steward'from his work area. He also testified,
as noted, that if employees wish to communicate a griev-
ance to the steward in person they are subject to a rule that
the foreman is to know where they are at all times.
The testimony demonstrates well that Booth terminated
Smith because of his violation of the foregoing procedures
and the resulting work stoppage. Indeed, Smith testified
that on the following day Booth told him that he was ter-
minated because he had stopped men from working on the
previous day.
The testimony of the witnesses establishes that the be-
havior of Smith plainly violated the basic procedure laid
down by company rules and the contract. Stated otherwise,
an employee with a jurisdictional complaint is not permit-
ted to resolve the matter by himself during company time
and is required to bring the matter to the attention of the
steward. Moreover, he is to telephone the steward, or if he
wishes to confer personally with the steward he must ob-
tain the permission of the supervisor. Smith did neither.
Indeed, one of the members of the crew of University,
Bullock, testified that his crew ceased work during the dis-
pute because they did not want to be doing something they
should not be doing. The company rules in this case obvi-
ously sought to achieve a just accommodation between the
union interests of the employee and the Company's most
legitimate interest in continued work and production. The
rules of Respondent permitted the employee to direct his
grievance to his union steward in an orderly manner.
To sum up, an employer may discharge an employee for
good cause unless the true motivating purpose of the dis-
charge was to punish him for engaging in an activity pro-
tected by Section 7 of the Act. There is no proof of an
illegal motive herein.
The record is entirely silent of any evidence that Booth
harbored any motive to punish Smith for having ques-
tioned the jurisdiction of the Sheetmetal Workers Union.
To the contrary, the steward for pipefitters testified that
Respondent had never challenged the right for employees
to talk to him about jurisdictional questions and that Re-
spondent had permitted jurisdictional complaints to come
to his attention on many occasions. There is also evidence
that Respondent has terminated employees for causing
work stoppages or leaving their work stations without per-
mission. Evidence that employees occasionally engage in
idle conversation without discipline does not resolve the
problem. The simple answer is that Smith unilaterally cre-
ated a jurisdictional controversy in the general work stop-
page, hardly a trivial matter.
CONCLUSIONS OF LAW
I. Bechtel Power Corporation is an employer whose op-
erations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 230 and Local 150, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor pracitces
within the meaning of Section 8(aX3) and (I) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
The complaint is dismissed in its entirety.
3 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.
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