Collavino Brothers Construction Co., Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1976

222 N.L.R.B. 889 (N.L.R.B. 1976)

COLLAVINO BROTHERS 889
Collavino Brothers Construction Company, Inc. and
James Miller. Case 7-CA-12054
Counsel and Respondent submitted briefs. Upon the entire
record in the case, including the briefs of counsel, and from
my observation of the witnesses, I make the following:
February 13, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On November 25, 1975, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a reply brief supporting 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
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on September 18, 1975, in Jackson, Michigan,
pursuant to a charge duly filed and served,' and a com-
plaint issued on June 27, 1975. The complaint presents
questions as to whether the Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended. In its answer, duly filed, the Respondent conced-
ed certain facts with respect to its business operations, but
it denied all allegations that it had committed any unfair
labor practices.
At the hearing, the General Counsel and Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, and
to file briefs. A motion to dismiss, made at the close of the
hearing, was taken under advisement. It is disposed of as
appears hereinafter in this, Decision. The parties waived
oral argument. On October 17, 1975, both the General
1 The charge was filed on May 27, 1975
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation with its princi-
pal office and place of business in Jackson, Michigan, and
another office in Windsor, Ontario, Canada, is engaged as
a general contractor in the building and construction in-
dustry. Its office in Jackson, Michigan, is the only facility
involved in this proceeding. During the calendar year 1974,
a representative period, the Respondent had gross revenue
in excess of $500,000, and during the same period it pur-
chased and caused to be transported to its Michigan job-
sites, directly from locations outside the State, goods and
materials valued in excess of $50,000. Upon the foregoing
facts the Respondent concedes, and it is now found, that
Collavino Brothers Construction Company, Inc., is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 324, International Union of Operating Engineers,
AFL-CIO, herein called the Union, or Local 324, is, and
has been at all times material herein, a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent is a member of the Associated General
Contractors of America , Inc. (herein AGC). At all times in
question there was in effect a collective-bargaining con-
tract with Local 324 which had been negotiated on behalf
of the Respondent by the AGC. This agreement had a pro-
vision which provided , in relevant part, that there would be
"no strikes, work stoppages , or lockouts during the pro-
cessing of any grievances or disputes . . ." (art. II , sec. 5,
par. 10). The contract had no provision requiring that lay-
offs be made in accordance with seniority.
At the time in question the Respondent was the general
contractor on a construction project known as the "Jack-
son Square" job in the city of Jackson . At various times the
Respondent employed carpenters, operating engineers, la-
borers, and cement finishers . All were under union con-
tract and all had union stewards on the job . There was a
total of from 10 to 15 trades represented on the project,
many of whom were working for subcontractors . Gerald R.
Roney, a former business agent for the Laborers Union
and still a member of that union , was the general foreman
on the project . Thomas Gowell was the project manager
and the Respondent's senior representative at the scene.
After the Respondent began work at the Jackson Square
construction site , it employed a number of operating engi-
neers, but at no time did it have more than four on the
payroll. These were Walter Doyle , Stan Cook , David Wil-
liamson , and James Miller, the latter being the Charging
222 NLRB No. 142
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Party. Miller was hired on or about August 27, 1974, and
initially worked as an oiler: Later he was assigned to oper-
ate a backhoe. Sometime in October or November, Miller
was laid off for lack of work. Williamson, who had been
hired in October 1974 and was operating a backhoe at the
time , was retained. Miller was recalled the latter part of
November and then operated a backhoe for about a
month, at which point the ground became frozen and he
was laid off once more. Williamson, however, continued
working. In February 1975,2 Miller was recalled again and,
after working with the backhoe for a short while, he was
assigned to operate the materials hoist. Soon thereafter,
however, the hoist developed mechanical difficulties and
was inoperable for several weeks while it was being re-
paired. During that period, Miller was laid off again. When
the hoist was finally back in working order he was recalled.
While Miller was off work in February, Williamson re-
mained on the job.
On May 13, and while still operating the materials hoist,
Miller was laid off again.3 Shortly before that date the Re-
spondent had begun using a Whitman concrete pump for
moving concrete into the forms. When trouble developed
in the use of this particular piece of equipment, Project
Manager Gowell solicited help from Williamson, who had
had some experience with concrete pumps. Shortly thereaf-
ter that employee was assigned to operate it. After Miller
was laid off, Williamson worked with the concrete pump
about 1 day a week and the rest of-the time he was respon-
sible for the materials hoist. At the hearing, Miller ac-
knowledged that he had had no experience with concrete
pumps. Although, after Miller's layoff in May, Williamson
took over some of his work, the record does not indicate
that any other operating engineer was hired to replace
Miller. The latter did not file a grievance under the con-
tract subsequent to his layoff. Instead, on May 27, he filed
an unfair labor practice charge with the Board. On Septem-
ber 3, he was recalled and resumed operating an elevator at
the jobsite 4
B. Miller's Layoff on May 13; Contentions of the Parties;
Findings and Conclusions in Connection Therewith
On April 20, a Sunday, Miller happened to be near the
jobsite at a time when no construction activity was in pro=
gress. He noticed that the hoist which he regularly operated
was being used by Thomas Bailey, the Respondent's office
manager, and that the latter had two teenaged boys with
him. Miller questioned Bailey as to the reason for this in-
cursion into the Union's jurisdiction. Bailey at first gave
only a noncommittal response, but finally told Miller that
he was collecting some wire cable for shipment back to
Canada. Miller did not attempt to lodge a 'protest about
this incident through the union steward on the job. Instead
2 All dates hereinafter are for the year 1975, unless otherwise noted
3 This was Miller's fourth layoff subsequent to his initial employment by
the Respondent. The record is silent as to whether any other operating
engineers were laid off during that period.
By that time, installation had been completed inside the building of an
Otis automatic passenger elevator Upon his recall, it was this equipment
which Miller was assigned to operate since the original materials hoist was
no longer in use.
he immediately called Fred Piper, business agent for Local
324. The next morning Piper and Cecil McKibbins, the
latter being business agent for the Laborers, called on Proj-
ect Manager Gowell. About 12:30 that day the two busi-
ness agents gave the order to stop work and their members
walked off the job. They remained off the job until the
morning of April 23, when they voted to return to work
after the business agents told them that the Respondent
had agreed to pay into the apprentices' fund a day's wages
for one operating enineer and one laborer.5
General Foreman Roney, called as a witness for the
General Counsel, testified that about 1 or 2 o'clock on the
afternoon of April 21, and after the walkout had occurred,
Project Manager Gowell came up to a group of employees
which included Miller and expressed his dismay at the
shutdown. According to Roney:
Mr. Gowell stated his disappointment with Mr. Miller
for what had taken place and stated that there were a
handfull of people that he considered the back bone of
... the company ... and of those people were .. .
myself, James Miller and a couple of other employees
on the job . . . and that . . . he was disappointed in
Mr. Miller, he thought he had been wrong and he [Go-
well] was going to have to apologize to Mario Collavi-
no [the owner] for being wrong.
Roney testified that Miller responded by telling Gowell
that he did not feel that he had done anything wrong, that
he thought that what he had done was in keeping with the
terms of the contract and that he was not sorry for any-
thing that had transpired.
At the hearing, Miller gave substantially the same ver-
sion as Roney with respect to this incident. According to
Miller, Gowell started the conversation with the declara-
tion "I would like to be able to look you right in the eye
and have you tell me you are not sorry about what you are
causing me here." Miller testified that he replied by telling
the project manager that he was not sorry and that he felt
that he was protecting his job. According to Miller, Gowell
chided him for having failed to bring the grievance about
Bailey to his attention before going to the Union. On cross-
examination, Miller conceded that when an employee has
a grievance the employee and the shop steward normally
confer with management before going to the business
agent. Miller testified that, during their conversation on
April 21, Gowell told him that if the Union called off the
work stoppage that had begun "he would personally fire
Tom Bailey if he ever bothered any other piece of equip-
ment [over which the Union had jurisdiction] on that job-
site."
According to Miller, on May 9,-Foreman Roney told
him that he would be laid off during the next week and in
this same conversation Roney told him that Project Man-
ager Gowell had requested that Williamson be informed
that he need not look for other work because Gowell plan-
ned to put Williamson on Miller's job. On May 13, the
following Tuesday, Gowell told Miller that he had to lay
off an operator and that Miller was the one who would
have to go. Gowell thereupon handed him an envelope
5 During the course of this walkout most of the other trades continued to
work.
COLLAVINO BROTHERS 891
with his paychecks and a layoff slip.
The General Counsel contends that the conversation
which Gowell had with Miller on April 21 constituted a
threat that was fulfilled 3 weeks later when Miller was laid
off. In arguing that Gowell's remarks demonstrated hostili-
ty toward Miller because of his participation in the se-
quence of events which led to the shutdown, the General
Counsel points to the timing and circumstances of the lay-
off and argues that the Respondent's motive was to punish
Miller because he sought to enforce his contractual rights.
The Respondent, on the other hand, argues that the com-
plaint should be dismissed on the ground that the General
Counsel failed to present a prima facie case .6
The General Counsel rests almost his entire case on the
contention that on April 21, when Gowell voiced to Miller
his displeasure about the shutdown, he was uttering a dis-
criminatory threat to that employee's tenure. Foreman Ro-
ney, who was present throughout this incident and who
gave the most complete testimony about it, was a member
of the Laborers, a former business agent for that union,
and one who had had approximately 12 years' experience
in collective bargaining and labor relations. He was called
as a witness for the General Counsel. On cross-examina-
tion, he was asked whether, on the basis of his experience,
Gowell's expression of disappointment in Miller was tanta-
mount to a threat. Roney's response was:
In my opinion, no, it wasn't a threat. The whole con-
text of the conversation was one of disappointment
and not a threat in my opinion.
Later, Roney added:
My opinion of the conversation that took place, the
tone of the conversation was of disappointment and
not, as I forestated, a threat.
Roney further testified that nothing which Gowell had said
to him prior to that moment on April 21 would cause him
to conclude that the project manager's comments to Miller
constituted a threat. Employee Williamson, another wit-
ness called by the General Counsel, confirmed Roney's
version of what occurred during the exchange between Go-
well and Miller. Even the testimony of Miller himself tend-
ed to corroborate both Roney and Williamson in this re-
gard. Thus, during the conversation on April 21, Gowell
criticized Miller for having gone directly to the Union's
business agent, rather than having brought it to his atten-
tion through the steward on the jobsite. On cross-examina-
tion, Miller conceded that, in this regard, Gowell was right,
since the grievance could have been discussed with the
union steward, and thereafter with Gowell, pursuant to the
terms of the contract.
6 At the hearing the Respondent did not offer any evidence after the
General Counsel concluded the presentation of his case-in-chief.
The remarks which Gowell made on the day in question
did not, of themselves, contain a threat of reprisal. Insofar
as his comments manifested dismay and disappointment at
Miller's having gone directly to the business agent rather
than to the steward and then to him, Gowell's remarks
constituted protected free speech under Section 8(c).
N.L.R.B. v. Provenzale Co., 512 F.2d 600, 601-602 (C.A. 6,
1974); Aztec Chemicals, a Subsidiary of Dart Industries, 218
NLRB No. 22 (1975). Since there is nothing else in the
record to support the General Counsel's allegation in this
respect, it is now found that Gowell's remarks to Miller did
not violate Section 8(a)(1), as alleged in the complaint.
Nor is there evidence in the record to establish that
Gowell displayed an antiunion motive in selecting Miller
for layoff. As found earlier, the Respondent decided at
some point early in May that an operator had to be laid
off. From the record it appears that at the most there were
only four operators employed on the project. According to
Miller, on the Friday before the layoff, Foreman Roney
told Williamson that he would be kept and that the latter
need "not look for other work." 7 From this it is apparent
that a decision had been made to cut back the work force
and that one of the operators would be compelled to find
another job. Miller had been laid off at the Jackson Square
jobsite on three earlier occasions and each time Williamson
was retained. This occurred once more in May, when Gow-
ell informed Miller that he had to lay off an operator and
that Miller was the one that had been picked to go. And
once again, Williamson took his place.
The General Counsel contends, correctly, that the Re-
spondent could not punish Miller because he sought to
enforce what he considered his contractual rights with an
appeal to the Union. N.L.R.B. v. Interboro Contractors,
Inc., 388 F.2d 495, 499-500 (C.A. 2, 1967); Carlson Corpo-
ration, 195 NLRB 218, 221 (1971); H. 0. Seiffert Company,
199 NLRB 960, 966 (1972); H. C. Smith Construction Co.,
174 NLRB 1173, 1174 (1969), enfd. 439 F.2d 1064 (C.A. 9,
1971); and Merlyn Bunney and Clarence Bunney, partners,
d/b/a Bunney Bros. Construction Company 139 NLRB 1516,
1519 (1962). Here, however, Miller's layoff was consistent
with the Respondent's past practice, in that he had been
laid off on three earlier occasions, in each instance without
regard to seniority,8 whereas Williamson was retained. On
the record herein, it is my conclusion that the General
Counsel has failed to prove by a preponderance of the evi-
dence that Miller's layoff was unlawfully motivated. Ac-
cordingly, and in view of the findings set forth above, it is
now found that the Respondent's motion to dismiss should
be granted.
7 The quotation is from Miller's testimony
B See Robert J Horth, Donald A Horth, and Douglas R. Horth, a partner-
ship d/b/a Central Engineering Construction Co, 200 NLRB 558, 564-565
(1972), where an employer was held not to have violated the Act by effect-
ing an out-of-seniority layoff of an employee who had complained of an
alleged violation of the collective-bargaining agreement, because the layoff
was in keeping with the employer's practice of laying off employees without
reference to seniority.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of - the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent violated Section
8(a)(1) and (3) of the Act as alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERS
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
9 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.