Cives Corp.

National Labor Relations Board - Board Decisions

Aug 10, 1972

198 N.L.R.B. 846 (N.L.R.B. 1972)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northeast Constructors , Division of Cives Corp. and
Harold Ross . Case 1-CA-7590
August 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 24, 1972, Trial Examiner Harry H.
Kuskin issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Northeast Constructors, Divi-
sion of Cives Corp., Waterville, Maine , its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's recommended
Order.
i Nothing in this order shall be construed as interfering with or limiting
the obligation of the Respondent to seek to reach some accomodation with
Local No 321, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, concerning the amount of worktime discrimmatee Ross shall be
permitted in his capacity as a union steward to spend on his union duties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KusKIN , Tnal Examiner : This case was heard
at Waterville , Maine , on December 2, 1971. A complaint,
as amended at the hearing, issued herein on June 16, 1971,
based on a charge filed on April 5, 1971, by Harold Ross,
an individual , herein called Ross; it alleges that Northeast
i The term is defined by stipulation to mean "no productive or
essentially no productive work," as distinguished from featherbedding,
which Respondent does not claim
2 After the close of this hearing , a motion dated December 29, 1971, was
filed herein by counsel for Respondent ( 1) to correct the transcript of the
record in certain respects , and (2) to strike all the testimony of Harold Ross
in accordance with Rule 102 44(c) of the Board's Rules and Regulations,
Series 8 , as amended , "on the ground that Harold Ross refused to answer a
question as shown at page 61 of the transcript" The statement of service
attached to the motion asserts that the motion was served on Harold Ross
and on the General Counsel by certified mail As to (I), since the
Constructors , Division of Cives Corp., herein called
Respondent , has violated Section 8(a)(3) and (1) of the Act
by refusing on or about March 19 , 1971, and continuing
until June 4, 1971, to refuse, to hire Ross for employment
at any of its construction sites because of his union
activities on behalf of Local No. 321, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, herein called Local 321. Respondent 's answer,
as amended at the heanng , denies that it violated the Act
in any respect alleged herein ; it asserts further as an
affirmative defense that it refused to hire Ross because of
its failure to receive "work value"' from Ross as an
employee on the Woodland, Maine , project.
Upon the entire record,2 including my observation of the
witnesses , including their demeanor while on the witness
stand , and after due consideration of the briefs of the
General Counsel and of Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint, as amended , alleges , and Respondent
admits, that Respondent is a Delaware corporation with its
principal office and place of business in Waterville , Maine,
where it is engaged in general construction ; and further
that it purchases annually in excess of $50 ,000 worth of
materials which originate outside Maine . I find , upon the
foregoing , as Respondent also admits , that Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent further admits , and I find, that Local No.
321, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. An Overview of Harold Ross' Employment With
Respondent
Respondent first hired Ross in October 1966 to work at
its Berlin , New Hampshire, project. After that, in January
1967, Respondent hired him as a journeyman pipefitter at
its Woodland , Maine , project, herein called the Woodland
project.3 In December 1969, he was appointed union
steward of the pipefitters on that project by John
McDonald, the business agent of Local 321, of which he
was a member. He continued in that capacity until the
corrections sought conform to my recollection of the specific portions of the
transcript involved , and as no opposition has been filed thereto , I grant the
motion in this respect and hereby correct the transcript in the manner
indicated by Respondent As to (2). 1 note that Respondent's counsel, in
effect, waived an answer to this question . which was posed during cross-
examination , by saying, upon receiving no response thereto, "well, let's
forget that question and go on to another one. Mr Ross " Accordingly,
apart from the fact that the question posed was an argumentative one, and
apart from other considerations, I find the motion in this respect to be
lacking in merit and it is hereby denied
+ This is referred to in the record, at times , as the Georgia Pacific project.
198 NLRB No. Ill
NORTHEAST CONSTRUCTORS 847
available work at that project was completed on January
22, 1971, and he was laid off. On February 2, 1971,
Respondent hired him as a journeyman pipefitter at its
Madawaska, Maine, project, hereinafter called the Mada-
waska project. He continued to work there until March 16
when there was a labor dispute on that project over the
discharge of Dewey Oulette, the pipefitter steward. At that
time , Ross and other pipefitters walked off the job. Ross
did not return to the Madawaska job thereafter. When the
Woodland project was reactivated4 later that month and
Respondent asked Local 321 to refer some pipefitters to it,
Ross was available for referral. However, he was not
referred by McDonald, the business agent of Local 321,
because Respondent told McDonald not to refer him. Ross
has not worked for Respondent since that time . Although
Respondent did thereafter, on June 4, offer, in writing, to
employ Ross for about a week as a pipefitter on the
Woodland project, Ross did not respond thereto. Respon-
dent admits in its answer, as amended, that it refused to
rehire Ross during the period from on or about March 19
to June 4, 1971, because of the way in which he functioned
on the job while he was the pipefitters' steward.
B. The Details of Ross' Employment at the
Woodland Project While He Was a Steward
1. The scope of the Woodland project
Respondent was engaged on a site in Woodland, Maine,
in construction work relating to the pulpmill for the
Georgia Pacific Company. In the performance of this
work, Respondent utilized the services of employees in 10
or 12 crafts.5 With specific reference to the pipefitters,
credible testimony establishes that there were in the
neighborhood of 84 pipefitters, including supervision,
when Ross became steward in December 1969; that the
complement increased to about 110 by June 1970; that the
complement continued at over 100 men during June, July,
and August, 1970; and that it then tapered off to 70 men in
September 1970 and, by October, was reduced to about 25
men.6 On the site were erected, inter aha, a structure for
water treatment, sanitary receiving tanks, lime kilns, acid
storage tanks, three boiler houses, a brown stock building,
stock storage tanks, dry urn baling areas, three separately
housed paper machines, wet urns, a flasher building, a
grinders building, a garage, a fab shop, and a wood room.
Except for a few buildings, the structures were multistory,
with one of the boiler houses being the tallest and having
nine stones. The overall length of the project, i.e., the
distance from one end of the project to the other end, was
about three-fifths of a mile according to DeLorme; and
about a mile according to Ross and McDonald. I am
persuaded, and find, that the estimate of Ross and
McDonald more closely approximated the actual distance.
2. The contractual commitment concerning a
pipefitter steward
The record shows that, at all relevant times , Respondent
was a party to a collective-bargaining agreement with the
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO,7 which agreement is applicable to
Respondent and Local 321 herein. The agreement covers
the period from October 14, 1968, to March 31, 1972, and
contains, inter aha, a union-security clause , an exclusive
hiring hall provision, and a provision as to stewards. As to
the latter, article XII provides in paragraph 53 as follows:
A steward shall be a working journeyman appointed
by the Business Manager or Business Agent of the local
union who shall, in addition to his work as journeyman,
be permitted to perform during working hours such of
his Union duties as cannot be performed at other times
which consists of those duties assigned to him by the
Business Manager or Business Agent. It is understood
and agreed that the steward's duties do not include any
matters relating to referral, hiring and termination. The
Union agrees that such duties shall be performed as
expeditiously as possible and the Employer agrees to
allow the steward a reasonable amount of time for the
performance of such duties.
In addition, the aforesaid agreement requires Respondent
to conform to certain terms and conditions of employment
as prescribed in the local agreement . The applicable local
agreement is between Pipefitting Contractors Association,
Inc., of Maine and Local 321, and covers a period from
May 1, 1968, to April 30, 1971.8 Section 15 thereof, which
relates to stewards, provides, in relevant part, as follows:
The Employer recognizes the right of the Union to
designate a Job or Shop Steward to take care of
immediate grievances that may arise on the job, also to
notify the Business Agent and Employers of the same.
A Steward shall be a working Journeyman appointed
by the Business Agent who shall, in addition to his
work as a Journeyman, be permitted to perform during
working hours such of his Union duties as cannot be
performed at any other time. Appointment of Stewards
shall be on the basis of such Employee's tact and
diplomacy. The first Journeyman to start work with the
tools on the job shall be acting job Steward until one is
officially appointed.
On jobs where there is a Steward, he shall have
jurisdiction of the job to carry full power to examine all
men performing work coming under jurisdiction of the
U.A. He shall enforce the proper care of all tools,
materials, and equipment that are placed on the job by
the Employer. He shall be responsible to point out and
to have corrected all known unsafe or hazardous
working conditions that may exist on the job. He shall
4 Paul DeLorme, Respondent's vice president for construction in Maine
and its general superintendent, testified that Respondent started another job
on the project involving the replacement of a steam main by one larger in
size
5 The total complement of this project at its peak period exceeded 300
employees
6 There was testimony on complement size by McDonald, DeLorme,
and Ross McDonald's testimony impressed me as the more accurate and 1
therefore credit him
7 This agreement will hereinafter be referred to as the national
agreement
8 Although not a signatory to this agreement , Respondent was a member
of the Pipefitting Contractors Association. inc , of Maine at the time of the
execution of the agreement In October 1969, Respondent withdrew from
this association
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work all overtime in order to carry out the duties of
Steward . Stewards shall not be laid off until completion
of job or by mutual agreement between the Employer
and Business Representative of Local #321. Stewards
shall be allowed reasonable time to coverjob.
3. The manner in which Ross spent his 8-hour
day during the period that he was a steward
Respondent admittedly did not expect any productive
work from Ross on Friday of each week. This was so
because Harvard Collins, the piping superintendent of
Respondent, had arranged with Ross to cash the paychecks
on that day for Respondent's employees and to conduct
any union business, if time permitted. Collins testified, in
this connection, that, "if we had any amount of men he
was a busy boy cashing checks" on Friday. As to what
occurred on the other days of the week, there is testimony
by Ross that the amount of time it would take him to cover
all the buildings on all levels and look in upon the
pipefitters working in these buildings varied with the
number of pipefitters on the job and the area over which
they were spread. Also according to Ross, on days when
the pipefitters' complement was at or near its peak, he
needed a full 8-hour day to attend to checking out the
project and, of this time, 3-1/2 to 4 hours were taken up
merely in traversing all the buildings9 and the balance was
devoted to attending to disputes or problems that arose; to
on the other hand, on days when there were 25 pipefitters
on the job, the amount of time he spent working with the
tools of his trade varied between 3-1/2 and 5 hours. On the
basis of the testimony and my findings above as to the size
of the pipefitters' complement during the period of Ross'
stewardship, I conclude and find that Ross performed very
little productive work, if any, during the period from
December 1969, when he began his stewardship, until
September 1970; and that, from some time in October 1970
until he was laid off in January 1971, the amount of time
he spent each day working with his tools vaned between 3-
1/2 and 5 hours per day. I'
4. The resulting complaints by Respondent
concerning the time spent by Ross in his steward
duties
Preliminarily, I note that McDonald testified that,
during at least one of the prejob conferences with
Respondent with respect to the Woodland project at which
he and representatives of numerous crafts were present,
Respondent told all those present that it would have no
nonworking stewards on the job. Also, according to
McDonald, his own response thereto was that the time that
9 McDonald testified that to walk around the project when 100
pipefitters were on the job would take about 2-1/2 hours or so, while
Delorme testified that such a trip would take him "an hour or so ," adding
that he was a fast walker
10 Such as, seeking to resolve with management , on his own, a
jurisdictional dispute which arose at least once a week, or a safety problem,
which occurred about once or twice a week, or a grievance which arose two
or three times a week , also seeing to it that all pipefitter work was assigned
to pipefitters , as well as checking daily on materials delivered to Respondent
to see to it that pipefitter materials were handled only by pipefitters, and
attending to new hires of pipefitters by receiving them at the plant gate and
seeing to it that they got on the payroll and were introduced to the
the pipefitters' steward spend in steward duties would
depend on the problems on the job. So far as appears, at
least one of the crafts on the Woodland job, namely, the
Carpenters, had a provision as to nonworking stewards in
its governing contract with Respondent. Thereunder, the
Carpenters could have a nonworking steward once its
complement on the job exceeded 40 men.
The record discloses that management complained about
the time Ross was spending on steward duties directly to
Ross and also to McDonald. Thus, it is undisputed that
Collins complained to Ross "a couple or three times" that
he was spending too much time as a steward, and that Ross
would reply that he felt that it was necessary to spend that
much time.12 Similarly, there is testimony by McDonald
that he received complaints that Ross was spending more
time than was necessary as a steward, once or twice from
Collins and once from Don Golding, the general foreman.
According to McDonald, his response thereto was to come
to the project and walk through the jobsite with Ross,
checking as to the size of the job and the area to be
covered, and inquiring from Ross whether he felt that he
had "any free time" for productive work; and in instances
where there was a large amount of pipefitters who were
spread over a large area, and a lot of pipefitting material
had come into the warehouse, etc., and if he felt that the
time spent by Ross was necessary, he would so inform the
management representative involved. Although there was
testimony that DeLorme, the vice president of the
construction and general superintendent, had spoken to
Collins, as well as to Frank Bailey, the project manager,
and to one, Warren, the immediate foreman of Ross, about
Respondent's dissatisfaction with the way Ross was
spending his time, there is uncontradicted testimony by
Ross that he was never given a written warning or
disciplined or threatened with discharge by any representa-
tive of Respondent because of the time he was spending as
a steward.13 And in those instances when McDonald
advised management, in response to specific complaints to
him about Ross in this regard, that he felt that the time
spent by Ross in steward functions was necessary under
the circumstances, nothing further was done as to that
specific complaint. In this connection, Collins testifies as
follows during cross-examination by counsel for the
General Counsel:
Q. Why didn't you fire Ross?
A. I fired a steward once and I'm lucky I'm here
today. You don't fire a steward.
Q. You think its better to refuse to hire them?
A. I would say yes. It would save a lot of trouble.
Q. Is this the only reason that you didn't fire him,
that you wanted to avoid trouble?
appropriate foreman Business Agent McDonald summed up Ross' duties
as follows to "protect the men and protect the contract to see if the men are
working under safe conditions and that their work is assigned to them"
11 Collins testified, in this connection, that he was informed by
supervision that from the time that Ross became a steward until about 6
weeks before his layoff in January 1971, Ross spent 90 to 95 percent of his
time "patrolling the job "
12 Ross could not fix the times of these episodes, nor was he able to recall
what precipitated them However, it would appear from Collins' testimony
that one such episode occurred early in Ross' stewardship
i i Neither Bailey nor Warren testified in this proceeding
NORTHEAST CONSTRUCTORS
A. No, I had no reason to fire Mr. Ross. I have
known him for a long time. He's a good mechanic. I
have no hard feelings against him. All I was trying to
do was get some work out of this man for the company
and I was unable to do it.
It is also noteworthy that, although the national and local
agreements provided that stewards were to be working
journeymen,14 and although Ross' productive work varied
from a little to nothing during the first 9 or 10 months of
the 13 months during which he was a steward for the
pipefitters on the Woodland job, and although Respon-
dent's complaints to Ross and McDonald availed it
nothing, it filed no grievance with respect thereto under the
applicable provisions of the national agreement.
C. The Details of Ross' Employment at the
Madawaska Job
As already noted, Ross was without employment from
the time the Woodland project shut down in January 1971
until February 2, 1971. The record shows that Collins
notified those who had been affected by the shutdown at
the Woodland project that there was a job opening at
Respondent's Madawaska, Maine, project for those men
who wanted to go there. In response thereto, Ross applied
through union channels and obtained such employment as
a pipefitter. He held this job from February 2,'1971, until
March 16, 1971. On that day, Dewey Oulette, who was
Local 321's steward for the pipefitters on the project, was
discharged. This termination precipitated a labor dispute
and Ross was one of the pipefitters who left thejob on that
day. Ross never returned to the Madawaska job thereaf-
ter.is
Douglas MacArthur, who was Respondent's project
manager on the Madawaska job for an 18-month period
beginning in December 1969, and who discharged Oulette,
testified that, at the inception, i.e., in December 1969,
Oulette was a working steward but, as the number of
pipefitters on the project increased, Oulette "became less
and less a worker, of doing productive work," with the
result that during the period from April 1970 until March
16, 1971, there were days when he did no productive work
for a good portion of the time and other days when he
performed no productive work at all.16 Here, too, accord-
ing to MacArthur, complaints were made to McDonald in
an effort to get Oulette to spend less time at steward duties
and more time at productive work.
849
pipefitters to the Woodland project that week at the
request of Collins, but that he had been told by Collins not
to dispatch Ross to the job. Ross testified credibly, in this
connection, that he would have taken the job at this project
at that time and that it would have been up to McDonald
as to whether he went back as the pipefitter steward.
McDonald testified that Ross was then eighth or ninth on
the referral list and would have been the first from the
Woodland project area to be referred,17 and that he would
have sent Ross to the Woodland project as a steward in
keeping with his practice to place a qualified steward on
another job to serve in the capacity, especially where the
individual had served before as steward on the job
involved.
That Respondent refused to rehire Ross on the Wood-
land project is, as already indicated, admitted by Respon-
dent in its answer. The circumstances of such refusal were
as follows, according to the uncontradicted and credited
testimony of McDonald: On March 19, he received two
telephone calls from Collins at the union office. During the
first telephone conversation, Collins said that Respondent
had a little more work at the Woodland project and needed
several welders and pipefitters as part of a crew to do that
work; there was also some discussion about the need to
follow the referral list, except that Respondent could select
the pipefitter foremen without regard to the list. The
second telephone call followed within an hour. During that
conversation, Collins said that he, Collins, had received a
telephone call from DeLorme and DeLorme's message to
him was that "under no circumstances . . . [were] Dewey
Oulette and Harold Ross to be hired on any Northeast
projects." 18 At this, he inquired from Collins as to the
reason behind this decision of Respondent, and was told
by Collins that "he [Collins] didn't know Dewey Oulette
but he did know Harold Ross and he didn't understand the
reasoning behind this decision."
E. The Subsequent Offer to Ross of a Job at the
Woodland Project
The record discloses that by separate letters, dated June
4, from Collins and from MacArthur , Ross was offered a
job at the Woodland project starting on Monday morning,
June 7 , and lasting for approximately a week. Ross did
nothing about these letters, manifesting thereby , I find, a
lack of interest in further employment at the reactivated
Woodland project.
D. The Refusal To Rehire Ross
On Monday, March 22, Ross called McDonald about
getting a job. Prior thereto, on March 16, he had called the
office of Local 321 and asked to be placed on the union's
referral list. McDonald told Ross that he was sending
i4 McDonald admitted that neither of these agreements contained a
provision authorizing a nonworking steward
is it is not contended here by the General Counsel that Ross'
participation in the labor dispute was an operative factor in Respondent's
subsequent refusal to rehire him at the Woodland project
i6 MacArthur explained the situation respecting Oulette's work pattern
as follows "He was not a non-working steward a hundred percent of the
time , due to the fact that it was a little bit different type of job than a forty-
hour week job all the way through We had numerous shut-downs, round
F. Respondent's Asserted Reasons for Refusing To
Rehire Ross
It is apparent from the record that DeLorme made the
decision not to rehire Ross; that Collins implemented that
decision; and that the decision itself was made in the
the clock type operations . so in those situations he did work "
i7 McDonald explained that the first five or six on the list were from
another area on which a fob was about to materialize, i.e. in Old Town. and
that it was his practice , in such circumstances , to refer the men from that
local area to that job And he explained further that he referred two men.
who were next on the list after Ross, to the Woodland job at the time in
question
is DeLorme testified that he told Collins that he "didn ' t want Ross back
on the job"
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
context of a company policy announced to management
personnel by Eugene Roderick, the president of Respon-
dent, in December 1970, not to have any nonworking
stewards.
With respect to the new company policy, Roderick
testified, in substance, that, in December 1970, negotia-
tions were in progress between the Building and Construc-
tion Trades Department, AFL-CIO, and the National
Constructors Association, a group of "30 constructing and
engineer type contractors," of which Respondent was a
member; that one of the matters under consideration
related to the problems these contractors were having in
enforcing the clause in the national agreement with respect
to stewards being working journeymen; that since he was
of the view that a working agreement would be reached to
effectuate the elimination of nonworking stewards from
their respective operations, he decided to make this a
company policy forthwith; and that he thereupon informed
management , including DeLorme, that "we would have no
nonworking stewards on all our jobs whether they were
here in Maine, or Pennsylvania or New York." 19
While DeLorme did not testify directly that he decided
not to hire Ross because, in his view, Ross' past
performance on the job had been that of a nonworking
steward, his testimony was tantamount to that, at times.
Thus, he testified that Ross "didn't produce work other
than as a steward," and further that "Ross spent too much
time wandering about the job, not pertaining to union
duties." However, DeLorme admitted, during cross-exami-
nation, that he never asked Ross what Ross was doing
when Ross was walking around and, further, that he would
not know from the fact that Ross was in conversation with
craftsmen other than pipefitters whether Ross was talking
about a work jurisdiction problem or about something
else.20
Analysis and Conclusions
It cannot be gainsaid, in the light of all the foregoing,
that Respondent was dissatisfied with the amount of time
that Ross was devoting to his steward duties during the
period of his stewardship on the Woodland job, i.e., from
December 1969 until January 1971, and that its complaints
to Ross and McDonald about the matter availed it
nothing, in that Respondent was told by each of them that
it was necessary to spend that amount of time. Considering
that (1) Respondent appeared to acquiesce in the foregoing
answers that the amount of working time spent by Ross in
union duties was necessary; (2) the absence of any
convincing evidence in support of its complaints to Ross
19 The record shows that an agreement entitled "Jurisdictional Agree-
ment and Work Rules Agreement" was thereafter entered into by the above
association , on behalf of each of its member companies, and by the Building
and Construction Trades Department , AFL-CIO, on behalf of its
constituent national or international unions , bearing date of February 14,
1971, and becoming effective on April 1, 1971, the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada , AFL-CIO , the parent of Local 321 , as well
as Respondent are among the signatories thereto Par G of art II of the
Work Rules Agreement provides that "A steward shall be a qualified
workman performing work of his craft and shall exercise no supervisory
functions There shall be no non-working stewards " Although Respondent
places some reliance on this agreement , it is patent that such reliance is
misplaced Thus , while the execution date of the Work Rules Agreement
and/or McDonald that Ross was spending too much time
in steward duties; (3) the expanse of, and the number of
employees on, the project; (4) Ross' credible testimony as
to the number of disputes he handled per week; (5) the
large number of pipefitters on the job during the period
from December 1969 until about September of October
1970 (i.e., as high as 110 and as low as 70) when Ross
performed little or no productive work; (6) the absence of
any contention by Respondent that Ross was performing
during working hours union duties that could have been
performed at other times; and (7) the provision in
Respondent's agreement allowing the Carpenters craft to
have a nonworking steward once the complement of
carpenters reached over 40 men, whereas the complement
of pipefitters was considerably in excess of that number
during most of Ross' stewardship, I am satisfied, and find,
that Ross performed his duties as a steward in an assiduous
manner and that Respondent's complaints about the time
spent in such duties away from work derived from his
assiduousness . Accordingly, I find lacking in merit Res-
pondent's contention in its brief that Ross "utterly failed
and refused to perform any appreciable amount of work
under the repeated and continued pretext of being engaged
in protected activity."
I am cognizant of Respondent's contention, in this
regard, that it was entitled to secure a reasonable amount
of productive work from Ross in accordance with article
XII, paragraph 53, of the national agreement set forth in
the text heretofore. The Board recently considered a
related issue in Cameron Iron Works, Inc., 194 NLRB No.
23, In that case, the respondent required a union steward,
because of the time he spent in union duties, either to
resign his union position or be demoted from his position
of leadman to the lesser job of journeyman electrician. A
majority of the Board there stated the applicable law to be
that "while, as indicated in Warner Gear [i.e., Warner Gear
Division, Borg Warner Corporation, 102 NLRB 1223], the
employer surely has a legitimate interest in the effective
utilization of working time, the employees also have a
legitimate statutory interest in the designation of their
representatives for [the] purpose of collective bargaining."
In applying this legal principle to the facts at hand, the
majority drew a distinction between the situation in
Warner Gear, where the contract between the union and
the employer expressly provided that union stewards could
perform union duties on the employer's time up to a
maximum of 5 hours a week without loss of pay, and that
prevailing in the case before it for decision where there was
no contractual commitment and only a practice of
predates Respondent's refusal to rehire Ross in March 1971, the effective
date thereof postdates such refusal Accordingly, it follows therefrom, and I
find, that the Work Rules Agreement may not be given retroactive effect
here And this is so notwithstanding the fact, adverted to by Respondent,
that par G of art 11 of the Work Rules Agreement was entered into in the
context of the national agreement and its provisions therein concerning
stewards
211 Although DeLorme also gave as a reason that Respondent was not
getting a full day's work for a full day's pay out of Ross, it is apparent that,
given the fact that Ross was a steward, and the absence of any contention
that Ross was performing union duties during working hours that could be
performed at other times, he (DeLorme) could not have been speaking
literally Rather it appears that he was thereby registering his objection to
the amount of time being spent by Ross in steward duties, and I so find.
NORTHEAST CONSTRUCTORS
permitting stewards to utilize working time for the
performance of steward functions; it noted that, unlike the
former situation where it was found that there was no room
for seeking accommodation between these interests, room
did exist in the latter situation for accommodation because
of the absence of such contractual commitment; and it
held further that, failing an effort to seek such accommo-
dation, an employer cannot arbitrarily restrict the right of
the employees and their union to be represented by the
man they desired to represent them. The instant case falls
somewhere in between these two situations. While there is
a contractual commitment here permitting a steward, "in
addition to his work as a journeyman, to perform during
working hours such of his union duties as cannot be
performed at other times," there is no specific lirmtation, as
in Warner Gear, on the amount of time he is permitted to
devote to steward duties during working hours, implying
thereby that the amount would vary depending, inter alia,
upon the area of the project, the number of employees
served by the steward, the number of other crafts on the
project, and the nature and number of disputes handled by
the steward. It would seem, therefore, and I find, that room
also existed for accommodation here. Yet, neither Respon-
dent nor Local 321 explored between themselves what
solutions were available. In all these circumstances, I find
that it would effectuate the policies of the Act to make
applicable here the holding in the Cameron case. It follows
therefor, that had the Respondent discharged Ross during
his stewardship because of the amount of working time he
spent at union duties, Respondent would have been acting
arbitrarily, in contravention of the Act, to restrict the right
of the pipefitters in its employ and of Local 321, their
union, to be represented by Ross, the one they desired to
represent them on the job in union matters. Although
Respondent did not discharge Ross, it admittedly refused
thereafter to rehire him on the reactivated Woodland
project since on or about March 19, 1971, until June 4,
1971, for that very reason. Respondent was thereby, in
effect, doing indirectly what it could not have done
directly. Stated otherwise, it was retaliating against Ross
because of the amount of time he had spent in the
assiduous performance of his steward duties when previ-
ously employed on the Woodland project. As such, this
conduct clearly contravened Section 8(a)(3) and (1) of the
Act,21 and I so find.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 321 is a labor organization within the meaning
of Section 2(5) of the Act.
21 See Hyster Company, 195 NLRB No 7
Although, as Respondent contends, the record is devoid of proof of
Respondent's antiunion motivation, I find, contrary to Respondent, that a
finding of 8(a)(3) is warranted here This is so because the natural and
foreseeable consequences of Respondent's unlawful conduct herein would
be to discourage active membership by its employees in Local 321,
particularly that of serving, upon appointment by Local 321, in the capacity
of steward See Radio Officers' Union of Commercial Telegraphers Union,
AFL-CIOv NLRB,347US 17
851
3. By refusing from March 19, 1971, until June 4, 1971,
to employ or rehire Ross on the reactivated Woodland
project because of the amount of working time spent by
him at union duties as a steward during a prior period on
that project, Respondent discriminated in regard to the
hire and tenure of employment of its employees and has
engaged in, and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, Respondent also inter-
fered with, restrained, and coerced its employees in the
exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act by refusing from March 19, 1971, to June 4, 1971,
to rehire Harold Ross because of the amount of time he
had spent at union steward duties during a prior period of
employment by it, I shall recommend that it cease and
desist therefrom and from any like or related conduct
hereafter. I shall also recommend affirmatively that
Respondent make Harold Ross whole for any loss of
earnings he may have suffered during the aforesaid period
as a result of the discrimination against him , less his net
earnings during that period, with backpay and interest to
be computed in the manner prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. However, as I have also
found that Harold Ross manifested a lack of interest in
further employment at the Woodland project, I shall not
provide for the contingency that Respondent is still
engaged in construction work at that project and still
requires the services of pipefitters,22 by recommending that
Respondent, in such event, offer Ross employment on the
project as a pipefitter, without prejudice to his right and
privilege to serve as steward for the pipefitters on that
project when so designated.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I hereby issue the following recommended: 23
ORDER
Respondent , its officers , agents , and representatives,
shall:
1. Cease and desist from:
(a) Refusing to employ or rehire Ross , a member of
Local No. 321, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
'the United States and Canada, AFL-CIO , which labor
22 The record is devoid of any evidence as to the status of Respondent's
work on the Woodland project at the time of the hearing
21 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
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization is the bargaining representative of its pipefit-
ters, because of the amount of working time theretofore
spent by him at union duties as a steward of the pipefitters
while in its employ.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Make whole Harold Ross, in the manner set forth in
the section hereof entitled "The Remedy," for any loss of
earnings suffered by him by reason of its unlawful conduct
found herein.
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agent, for examina-
tion and copying, all payroll records, social security
records, timecards, personnel records and reports, and all
other records necessary or useful to determine or compute
the amounts of backpay due, as herein provided.
(c) Post at all of its construction projects within the State
of Maine, copies of the notice marked "Appendix." 24
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being signed by a representa-
tive of Respondent, shall be posted by Respondent
immediately upon receipt thereof and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Additional copies of the "Appendix" attached hereto
shall be signed by an authorized representative of Respon-
dent and shall be returned forthwith to the said Regional
Director for posting- by Local No. 321, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, if willing, at its meeting halls and offices,
including all places where notices to its members are
customarily posted.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.25
24 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
25 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director for Region 1. in writing, 20 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 WILL NOT refuse to employ or rehire Harold
Ross, a member of Local No. 321, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, which labor organization is the bargaining
representative of our pipefitters, because of the amount
of working time theretofore spent by him at union
duties as the steward of our pipefitters while in our
employ.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed under Section 7 of the Act.
WE WILL make Harold Ross whole for any loss of
pay by reason of our unlawful conduct of refusing to
employ or rehire him.
NORTHEAST CONSTRUCTORS,
DIVISION OF CIVES CORP.
(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,
Seventh Floor, Bulfinch Building, 15 New Chardon Street,
Boston, Massachusetts 02114, Telephone 617-223-3300.