Buck Kreihs Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 620 (N.L.R.B. 1970)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buck Kreihs Company, Inc. and Odie W. Cox. Case
15-CA-3616
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
On May 14, 1970, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceed-
ing finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed as to them. Thereafter, the General Counsel
and Respondent filed exceptions to the Trial Examin-
er's Decision and supporting briefs.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and hereby orders that Respondent, Buck Kreihs
' The General Counsel has excepted to the provision made by the
Trial Examiner with respect to remedying Respondent's discrimination
against Cox on June 19 The Trial Examiner recommended with respect
to Respondent 's failure to employ Cox from I am to 5 am on June
19, that any sum which Cox earned from any other employer during
normal working hours on June 19 , 1970, should be offset against the
sum due him from Respondent for that date We find merit in the
General Counsel 's exceptions in this regard and in accordance with
normal Board practice which is justified in the present case, we shall
amend the Order to make Cox whole for any earnings he lost because
of the discrimination against him
Company, Inc., New Orleans, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order,
as so modified:
Delete paragraph 2(a) of the Trial Examiner's Rec-
ommended Order and substitute the following in lieu
thereof:
(a) Make whole Odle W. Cox for earnings he
lost because of Respondent's discriminatory failure
to employ him on June 28 and 29, 1969, and from
1 a.m. to 5 a.m. on June 19.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner: This proceeding,
heard at New Orleans, Louisiana, on March 18, 1970,
pursuant to a charge filed August 5, 1969, a complaint
issued September 26, 1969 and an amended complaint
issued February 9, 1970, presents questions whether
Respondent, herein called the Company, denied certain
work to the Charging Party, herein called Cox, because
of the latter's lack of membership in a labor organization,'
and whether the Company gave preferential treatment in
hiring to members of the Union
Upon the entire record,' and after due consideration
of the briefs filed by each of the parties hereto,' I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Louisiana corporation engaged at New
Orleans as a marine and industrial contractor, annually
receives goods and materials valued in excess of $50,000
International Brotherhood of Boilermakers , Iron Ship Builders, Black-
smiths , Forgers & Helpers, Local 37, AFL-CIO, herein called the Union
After the close of the hearing , the Charging Party requested that
the record be reopened to permit the introduction into evidence of
certain work records of certain company employees, and of certain other
records including evidence of company "help wanted" advertisements
in local newspapers and of company payments to the Union 's pension
fund and to its health and welfare fund Pursuant to this request and
by agreement of the other parties, I hereby receive in to evidence as
General Counsel's Exhibits 5, 6, and 7 the letter from company counsel
dated April 14, 1970, and the attachments thereto setting forth the
work records of Messrs Snow, Hubbard , Hunt, Paretti , and Broom,
respectively I also receive as Company Exhibit 4 the letter from the
Company to its counsel dated April 3, 1970 1 decline to receive the
advertisements and contribution records referred to above, as in my
view they are not relevant to the issues before me Charging Party
argues in his brief that such records would establish that the Company
hired in part through the newspapers , notwithstanding an undertaking
by the Union to furnish men from its out-of-work list, and that the
Company made contributions in behalf of nonunion employees as well
as of union members These facts, if established, would not in my judgment
be relevant to the determination of the issues raised in this case
Two posthearing letters filed by the Charging Party are treated
as his briefs
185 NLRB No. 52
BUCK KREIHS COMPANY 621
directly from outside the State, and is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act The Union is a labor organization within
the meaning of Section 2(5) of the Act.
contention that during the summer months of 1969 it
had ample employment for all applicants is no defense,
particularly as the record shows that this condition altered
in October.
II THE ALLEGED UNFAIR LABOR PRACTICES
A Discriminatory Hiring Practices
The Company and the Union are parties to a collective-
bargaining contract which provides, inter aka, that the
Union will furnish employees to the Company, and that
when the Union is unable to supply employees, the Company
will employ such workers as may be available. The contract
further provides that an employee hired after its effective
date must join the Union not later than the 31st day
of his employment. Notwithstanding the contract, however,
the actual hiring practice of the Company is as described
in the following testimony of Felix4 Jacob, the company
foreman who is responsible for hiring on the night shift
in the boilermaker department-
Q. As a practical matter, the company has a shape
up every day when they hire people Don't they?
A That is right.
Q. And you hire your regular people first.
A Yes.
Q And then in the shape up you usually know
who is in the union and who is not in the union?
A. Well, more or less, yes. There are new men around
here which I wouldn't know.
Q. If he is a new man you figure that he is a
non-union man?
A Well, no. There is a union steward there and
he will let you know who is union and who is non-
union.
Q. Also as a practical matter, how many people
do you get referred out from the hall?
A. I didn't understand you
Q. I said on this shape up when you are there
hiring people, do you ever get people sent out from
the union hall?
A. Occasionally.
Q. Is that the normal routine or are they all there
at shape up?
A Well, the way our work goes most of the men
that we need are there at shape up.
Q. Both union and non-union?
A Yes.
The record establishes that in hiring at the shape up
the Company gave preference to union members Jacob
stated in a pretrial affidavit and again on the witness
stand that he hired the available union men first, and
then nonunion men. Such a hiring practice is plainly violative
of Section 8(a)(3) and (1) of the Act, as the amended
complaint alleges See, e.g., N.L.R.B. v Houston Maritime
Assn.. 337 F 2d 333, 335 (C A 5, 1964). The Company's
' The name is unaccountably misspelled Fexix throughout the transcript
but the correct spelling appears in the signature to General Counsel's
Exhibit 4
B. Failure to Give Overtime Work to Cox
1. Cox's employment history
Cox, a boilermaker of long experience and great compe-
tence, was at one time a union member, but lost his
membership in 1958 and has not been able to reacquire
it despite his strenuous efforts to do so. During his long
experience in ship repair work in the New Orleans area
he has worked for many employers, including tours of
duty with the Company long before the events here involved.
In the spring of 1969, Cox, while working at Jefferson
Iron Works, learned from a fellow employee that work
might be available at the Company Cox made arrangements
with Jacob, the company foreman, and worked for the
company on every weekday from Friday, April 25 through
Monday, May 26, except for May 7, 13, 14, 16, 21, and
23.5 He also worked two Saturdays in that period, May
10 and 17. He did not work Saturday, May 24, and this
is urged as one instance of discriminatory refusal of overtime
because of Cox's nonmembership in the Union. After May
26, Cox's next day of work for the Company was Saturday,
June 7 He did not work Sunday, June 8, and this is
likewise urged as an instance of discrimination for nonmem-
bership He next worked June 18 and 19, and claims
discrimination in not getting additional overtime on the
first of those days. Cox then worked June 26 and 27,
but claims he was discnmmatonly denied weekend work
on June 28 and 29. Cox worked regularly at the Company
in the months of July, August, and September, including
three Saturdays and four Sundays, and no discrimination
is claimed in those months Early in October the Company
stopped employing Cox, who claims he was denied work
on October 7 because of his lack of union membership.
Shortly thereafter, in mid-October, Cox stopped attempting
to get work from the Company and found employment
elsewhere
2. Contentions with respect to Cox
General Counsel and Cox contended at the hearing that
on several specified dates Cox was denied work because
he was not a member of the Union.' The Company responded
' Cox was hired on every regular workday on which he sought work
at the company from May through September
' in his brief General Counsel "concedes there are difficulties in
establishing specifically which days Cox was denied overtime ," and urges
that "the extent to which Cox has been discriminated against could
be more properly handled in the compliance stage of this proceeding "
Although in the ordinary case the procedure thus suggested by General
Counsel would be appropriate , the record in the instant case permits
of no such disposition The case was tried from beginning to end on
the clear understanding , joined in by all parties , that only certain specific
dates were in issue When company counsel at the outset of the hearing
supplied a list of the dates in question , General Counsel volunteered
(cont'd)
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that insofar as Cox complains of not receiving weekend
work this was the result of a policy which favored permanent
rather than irregular employees , and that the two remaining
episodes of which Cox complains were also not related
to his lack of union membership
With respect to the weekend dates, Cox alleges that
he was denied the opportunity to work on Saturday, May
24, Sunday, June 8, and on Saturday and Sunday, June
28 and 29 With respect to May 24, the record shows
that Cox had worked for the company on Monday, Tuesday,
and Thursday (May 19, 20, and 22) of that week. In
the 3 preceding weeks he had worked 5, 4, and 2 regular
workdays, respectively, and in the latter 2 weeks he had
also worked on Saturday Jacob testified that although
in hiring he gave preference to union members , in selecting
for weekend work he gave preference to "regular" employees
who had worked the full week In a pretrial affidavit
dated July 17, 1969, Jacob stated that "pursuant" to the
contract he hired "union men first for regular and overtime
hours," and that Cox "would probably work more overtime
if he was union." In a later pretrial affidavit dated November
25, 1969, Jacob stated, substantially as he did on the
witness stand , "Once an employee is hired there is no
distinction made between union and non-union men in
the assignment of overtime " Company records show that
among others who worked on May 24 were Carlton Hubbard
and Anthony Paretti. During the week in question, Hubbard
had missed work on May 21 and Paretti missed May
19 and 21. Both Paretti and Cox had worked 13 days
in May prior to May 24; Hubbard had worked 15 days,
including 9 consecutive days (including Saturday and Sun-
day) prior to his absence on May 21
With respect to June 8, the record shows that Cox,
who had not worked for the Company since May 26,
was called to work on Saturday, June 7 Jacob testified
that on that occasion he was a substitute foreman in the
shop when a "last minute" job came up for which he
had to recruit men. He further testified that the next
day, Sunday, the regular shop men came to do the work,
displacing ' Cox, who was basically an "outside" and not
a "shop" man. Cox, however, testified that when he left
the job Sunday morning, Jacob said that if he were unable
to have a union man he would call Cox back.
After the weekend just discussed, Cox continued to work
for another employer (except for Wednesday and Thursday,
June 18 and 19, discussed below) until Thursday and Friday,
June 26 and 27. He worked for the Company on those
dates but alleges discriminatory denial of employment on
the weekend, June 28 and 29. On that weekend overtime
was worked by Daniel Hunt, who had been working all
that week except for Thursday, and by Paretti, who had
worked only Friday of that week, as well as by other
employees who worked the full week. According to Cox,
that two dates had been deleted, and then , in what he styled a "small
correction ," added one additional date When the Trial Examiner stated
"what we are dealing here with obviously at the most is six days as
far as Mr Cox is concerned ," no one took issue with the statement
On examining Cox, General Counsel stated " I will ask you to
give your explanation of those dates that you have claimed
I cannot on this record permit General Counsel now to expand the
case into a claim of general discrimination against Cox
he had been working on a particular ship, the Sue Lykes,
that Thursday and Friday, but was denied work on the
weekend although work continued on the ship. Jacob did
not testify explicitly to this episode except to say that
as Cox did not work the first 3 days of the week, he
would not have been preferred for the overtime assignment.
The two midweek occasions of which Cox complains
of discrimination were Wednesday, June 18 and Tuesday,
October 7. Cox worked for the Company on June 18
for the first time since June 7. According to Cox he
was called to work on a ship that day, and at 1 a m.
"they knocked [him] off " although work continued until
5 a.m Cox quotes Jacob as saying that the latter "would
like to work [Cox] for the rest of the night but you
don't have a union card" The next night Cox worked
8 hours for the company and Jacob "didn't mention anything
about the overtime." Jacob in his testimony did "not remem-
ber exactly what job it was but probably we had to reduce
the crew is the reason why [Cox] did not work overtime
that night " In that connection Jacob said that he would
have given preference to men who worked the two preceding
days in assigning overtime on that Wednesday.
After fairly steady employment at the Company from
mid-July through Thursday, October 2 (including three
Saturdays and four Sundays), Cox was told that he was
being laid off as no work was available. He reported for
work without success from October 3 through 10 He
contends that on October 7 a man was hired who "had
been out to sea since March and he had not worked
for [the Company] since March." Jacob testified that this
man was hired as a helper , not as a journeyman, and
that he was a seaman , "a good climber," whom Jacob
needed to do "some rigging work on the booms "
3. Conclusions with respect to Cox
Each of the six episodes as to which Cox complains
stands on its own footing . In each separate instance the
question is whether General Counsel established by a pre-
ponderance of the evidence that Cox was denied work
because of his lack of union membership. At least one
piece of evidence is relevant to all six episodes, namely,
Jacob's first affidavit which states that Jacob hired union
men first for overtime and that Cox "would probably
work more overtime if he was union." This, of course,
is inconsistent with Jacob 's later affidavit and his testimony,
both of which state that once an employee is hired his
union membership or lack thereof is not a factor in the
assignment of overtime I must give due weight to the
first affidavit, particularly as it was executed on July 17,
1969, close to the dates of the alleged discriminations.
On the other hand, the generalization in the affidavit must
be viewed in the light of the entire record, including the
comparative regularity with which Cox received overtime
once he became a full-time employee of the Company.'
With respect to the weekend dates, the Company's posi-
tion that it gave weekend work to those who had worked
' Cox worked two Sundays and one Saturday in the 3 weekends
preceding his filing of the charge in this case
BUCK KREIHS COMPANY
the full week is substantiated by Cox's experience after
he started to work regularly On the other hand, on two
of the occasions complained of, May 24 and June 28-
29, the Company gave weekend employment to Paretti
and not to Cox, although on the first occasion the two
men had worked the same number of days per week,
and on the second, Cox had worked more that week than
had Paretti. In the light of this record and of Jacob's
first affidavit, I find discrimination against Cox, in favor
of Paretti, a union member, on June 28 and 29.8
As to May 24, the evidence is at best in equipoise
concerning Cox and Paretti, and I find that General Counsel
failed to prove prounion discrimination in the Company's
hiring Paretti rather than Cox on that date The remaining
weekend date, June 8, apparently involved a "shop" job,
on which Cox was called on Saturday, June 7, in an
emergency. His replacement by a "regular" on June 8
was not discriminatory, for Cox had not worked for the
Company for 2 weeks, and was not basically a "shop"
employee. Cox testified that Jacob said on that occasion:
"If I am not able to have a union man, I will call you
back." But even if Jacob said "union man," rather than
"regular man" or "shop man," this would establish encour-
agement of union membership in violation of Section 8(a)(1),
but not discrimination violative of Section 8(a)(3), for on
this record it seems reasonable to infer, as I do, that
Cox would not have been employed on June 8 even if
he had been a union member.
As to the two midweek occasions, the evidence falls
far short of establishing a violation on October 7. As
to June 18, however, Cox quotes Jacob as saying, when
he "knocked [Cox] off " that Jacob "would like to work
me [Cox] for the rest of the night but you don't have
a union card " Jacob had no independent recollection of
the episode but simply assumed that he had to reduce
the crew that night. On this occasion I find that General
Counsel has established discrimination against Cox for want
of union membership.
Finally, General Counsel contends that even where Cox
lost overtime because other men had worked regularly
during the week, this was the indirect result of the Compa-
ny's unlawful preference for union members. This argument,
speculative at best, cannot be sustained on this record
which establishes that during the period in question Cox
would have been hired on any regular workday on which
he applied.
CONCLUSIONS OF LAW
The Company, by discriminating in favor of union mem-
bers at the time of hiring , and by denying employment
on certain occasions to Cox because he was not a union
member , has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
and 2(6) and (7) of the Act.
The record shows that one Pannino, a nonmember of the Union,
worked on June 28, but is silent as to whether he worked the full
week
THE REMEDY
623
I shall recommend an order directing the Company to
cease and desist from its unfair labor practices and, affirma-
tively, to post appropriate notices and to make Cox whole
for earnings he lost because of the discrimination against
him. More specifically, the Company should make Cox
whole for its failure to employ him on June 28 and 29,
and from 1 a in to 5 a.m on June 19. With respect
to the latter date, however, any sum which Cox earned
for any other employer during normal working hours on
June 19 should be offset against the sum due him from
the Company for that date Cox should be paid interest
on any sums due him under the formula of Isis Plumbing
& Heating Co., 138 NLRB 716.
Accordingly, upon the foregoing findings and conclusions
and upon the entire record in this proceeding, I recommend,
pursuant to Section 10(c) of the Act, issuance of the follow-
ing:
ORDERS
Respondent Buck Kreihs Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating in favor of union members and against
nonmembers in the hiring of employees or in the assigning
of overtime or other premium pay hours.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Odie W. Cox, in the manner prescribed
in the portion of the Trial Examiner's Decision captioned
"The Remedy," for losses he sustained as a result of the
denial of work to him on June 28 and 29, 1969, and
between 1 a in and 5 a.m. on June 19, 1969.
(b) Post at its premises in New Orleans, Louisiana,
copies of the attached notice marked "Appendix "10 Copies
of said notice, on forms provided by the Regional Director
of Region 15, after being duly signed by Respondent's
representative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
' In the event no exceptions are filed as provided by section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and the Recommended Order
herein shall, as provided in Section 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
'° In the event that the Board 's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
"Posted By Order Of The National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 15, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith."
WE WILL pay Odie W. Cox for losses he sustained
as a result of our failure to assign him certain overtime
and weekend work in June 1969.
" In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE HEREBY notify all employees and all applicants
for employment that we will hire employees and we
will assign overtime or weekend work to employees
without regard to whether they are or are not members
of a labor union
BUCK KREIHS COMPANY,
INC
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orle-
ans, Louisiana 70113, Telephone 504-527-6361.