Continental Slip Form Builders, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1970

186 N.L.R.B. 848 (N.L.R.B. 1970)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Slip Form Builders , Inc. and Carpenters
District Council of Houston and Vicinity,
AFL-CIO. Case 23-CA-3547
November 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 5, 1970, Trial Examiner Phil W.
Saunders issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices and recom-
mending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The Respondent filed an answering
brief in support of the Trial Examiner's Decision.
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
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be , and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS , Trial Examiner: Upon a charge filed
on February 16, 1970, by Carpenters District Council of
Houston and Vicinity, AFL-CIO, herein called the Union,
the General Counsel issued a complaint on April 14, 1970,1
against Continental Slip Form Builders, Inc., herein called
Respondent or Company, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended . At the trial parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
I All dates are 1970 unless specifically stated otherwise.
2 All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
examine witnesses , to argue orally on the record, and to
submit briefs. Oral argument was waived, but both the
General Counsel and Respondent filed briefs.
Upon the entire record in the case , including my
observation of the demeanor of the witnesses , I make the
following: 2
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation organized under and
existing by virtue of the laws of the State of Kansas. At all
times material herein , Respondent has been engaging in
construction of certain portions of a new building for the
American National Insurance Company in Galveston,
Texas , under a subcontract with Henry C. Beck and
Company. Respondent 's subcontract with Beck is valued in
excess of $500,000.
Respondent is, as it admits , an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleged in substance that Respondent
discriminatorily discharged Alvin DuBois, Gerald Ayde-
lott, and John Garcia. Aydelott's concerted and union
activities (leading the carpenters work stoppage of January
9) and DuBois' concerted and union activities (presenting
grievances to Respondent concerning alleged disparity of
overtime assignments); also by threats of discharge and
reprisals Respondent interfered , restrained, and coerced its
employees .3
As pointed out, the Respondent is engaged as a
subcontractor in the erection of the core or the elevator
shaft of the American National Insurance Building in
Galveston, Texas, and the general contractor is Henry C.
Beck Company, herein Beck. It appears that the Company
started work at the site sometime in early December 1969,
and obtained men for the job through the Union and its
Local 526 and through other labor organizations in the
area.4 From January 9 to 15, the carpenters employed on
the job by the Company were on strike. The strike resulted
over the assignment of certain jack rod work, and over the
question of whether there would be two or three shifts. The
Union called the strike by having F. F. Goodson, a business
representative of Carpenters Local Union 526, inform the
steward to report to his office and when the steward left the
job all of the carpenters of the Respondent also left the job.
They returned to work after settlement on the strike. Gerald
Aydelott was the acting job steward on January 9 in the
place of David Scott.
DuBois was employed by Respondent as a carpenter in
early December 1969, but was off work between January 7
s At the hearing the complaint was amended to delete the name of John
Garcia.
4 Resp . Exh. I is the contract in effect between the Carpenters District
Council and the Respondent.
186 NLRB No. 118
CONTINENTAL SLIP FORM BUILDERS , INC. 849
and 29 and therefore was not working at the time of the
strike as he had sustained an on-the-job injury to his hand
or fingers. DuBois returned to work on January 29, and
continued working until his discharge on February 13.
During his absence from the job because of his injury, he
nevertheless visited the jobsite from time to time and on or
about January 12 DuBois and later Aydelott observed that
Beck's carpenters were doing certain work at the jobsite
previously performed by the striking carpenters.5 DuBois
then reported this situation to the Union, and as a result of
the complaints about Beck's carpenters performing struck
work, the Union or Goodson filed charges against their
carpenter members.
On January 13, the 10 or so striking carpenters, including
DuBois, returned to the jobsite6 and Respondent's General
Project Superintendent Curtis Glasscock asked them if they
were there to work.? The Respondent's general foreman,
Harold Reynolds, then assigned the returning carpenters to
the various shifts and work available, but there was a delay
of a few days before the strikers were back at work, and
they also had to get clearance from the Union.
On January 29, DuBois was released and returned to
work, but was still under the periodic care of his doctor.
Upon returning he was assigned to building boxes on the
ground. These were boxes of various sizes used for inserts in
the forms to block out the concrete for the open spaces. On
February 2, the carpenters working on the core of the
building itself worked overtime including several of Beck's
carpenters, but DuBois only worked 8 hours.8 DuBois
testified that Foreman Reynolds told him he did not want
DuBois to hurt his fingers again, that the Company was not
paying $10 an hour to get boxes built (overtime rate in the
contract), and he did not want DuBois to go up in the shaft
with the other carpenters because he would "agitate" them.
Reynolds specifically denied making any statement about
DuBois agitating the men. DuBois then contacted Goodson
and informed him of the above situation and demanded
action.
On February 3, DuBois went to see an attorney as well as
the local office of the Department of Labor before he and
Goodson went to the jobsite and talked with Glosscock and
Reynolds about the nonassignment of overtime work.
Glasscock stated he was well aware that on the previous
day DuBois had taken his materials for the making of boxes
into the toolshed as aforestated, while the rest of the men
remained out in the weather. He also informed Goodson
that DuBois was building boxes so he would not reinjure his
finger and told DuBois that he had received complaints
about him leaving his assignments, and then went on to
mention other things that would help DuBois in the opinion
of Glasscock. As a result of this conversation, the
Respondent agreed to reimburse DuBois for the overtime
he claimed to have lost on February 2. From February 3
5 The Union furnished carpenters to both Beck and the Respondent.
s Apparently several of the strikers had earlier returned to their jobs.
7 DuBois testified that on this occasion Glasscock made the statement
that DuBois was "out to get him ." Glasscock denied making this remark,
but stated he noticed DuBois because he was in street clothes, inquired
what he was doing at the site in view of his injured fingers or hand . DuBois
then replied, "I am out here to check to see who is doing my work."
8 On this date , DuBois was instructed by Reynolds to build the boxes in
or near a platform on the jobsite, but instead took the material to the
toolshed some distance away and worked there . He had also built boxes
until February 12, DuBois worked along with other
carpenters and received overtime assignments on an equal
basis .9
On February 6, the Company hired an additional
carpenter (Bobby Byrd), and then on February 12 several
of the carpenters including Byrd, who had just reported,
were told they would work overtime that evening-DuBois
was not one of them-and a number of carpenters were
also told to report early the next morning , but again DuBois
was not one of them. DuBois then immediately reported
this situation to the Union. Goodson appeared at the
jobsite on February 13 and discussed DuBois' overtime
complaint with job steward David Scott and other
carpenters, and instructed Steward Scott to again talk to
Glasscock about the distribution of overtime assignments.
About 3:30 p.m. on February 13, Foreman Reynolds
handed DuBois his paycheck along with an additional
check indicating his termination . Aydelott was likewise
terminated on this same date.
Glasscock testified that when the Company went to a
one-shift operation he had too much help and had to reduce
his work force by three carpenters, three laborers, and one
ironworker. Reynolds was told of the reduction in force on
February 12, and made the selection of the three carpenters
to be laid off. Foreman Reynolds stated that he selected
carpenters DuBois, Aydelott, and Garcia for layoff because
they were the least productive.10
In its brief the General Counsel points out the following:
"After the strike on January 9, DuBois was quite agitated
about other union carpenters replacing striking carpenters,
and working without a duly appointed union steward in
violation of the Union's constitution and by-laws and was
quite vociferous in expressing his agitation. According to
Goodson, it was primarily DuBois' complaints that resulted
in Goodson's filing union charges against those union
carpenters, part of his local's membership, for engaging in
such activities. Interestingly, one of the members subjected
to union charges was Carpenter Foreman Reynolds, who
selected DuBois and Aydelott for the February 13
terminations."
At the trial before me Goodson was asked if he received
complaints from any of the carpenters at the time of the
January 9 work stoppage. He replied, "A number of them
were complaint. They were going to file charges against
some of the brother members. And I did eventually file
charges against 29 or 30 for violation of their working
agreement." Goodson stated he knew of at least four men
who were complaining to him about Beck's carpenters
replacing them when they were striking and these men were
Aydelott, DuBois, Smith, and Tyler, and then Goodson
added "probably seven carpenters brought it to my
attention."
I pointed out the above in some detail because it appears
prior to his injury.
9 DuBois testified that on this occasion Glasscock stated that he was a
"union agitator." Glasscock flatly denied using these words attributed to
him, and even Goodson did not substantiate the testimony by DuBois that
Glasscock had used the word union.
10 DuBois testified that at the time he was terminated he asked
Foreman Reynolds the reason and that Reynolds had told him for stirring
up union business on the job. Reynolds denied that he said any such thing
to DuBois , and he was supported by Parrish who was also present at the
time DuBois was paid off.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to me these circumstances merit initial consideration. It is
obvious that DuBois and Aydelott do not stand alone in
making complaints to the Union about Beck's carpenters
taking on their work while they were engaged in the work
stoppage. Goodson knew specifically of four and possibly
seven of the carpenters employed by the Respondent who
were complaining. It is clear, therefore, that this situation
was not merely a matter of interest to the alleged
discriminatees, but was a vital concern to several of the
Respondent's carpenters.11 Furthermore there is no
credited testimony that the Company knew that DuBois
played any part in the charges filed against brother
members.
It seems to me that the basic reasons Reynolds did not
assign overtime to DuBois on February 2 is amply
supported by this record. DuBois had just recently returned
to duty after an on-the-job injury to his hand; the Company
obviously did not want to pay overtime wages (around $10
an hour) for making boxes when they already had a
considerable supply; and DuBois had chosen to move his
work to the toolshed.12 There is also no showing that any
penalty resulted from his complaint in regard to this loss of
overtime. After the discussion on February 3, DuBois was
then paid for the overtime he thought he was entitled to on
the previous day. As pointed out, this is hardly treatment
which indicated any animosity toward DuBois.
DuBois also testified that on February 12 he did not
receive any overtime assignments and he complained to
Goodson about it. However, there is no evidence that the
Respondent knew of this particular complaint as Goodson
merely asked Steward David Scott to talk to Glasscock
about the matter, but there is absolutely no proof in this
record that the steward talked to management, and Scott
did not testify at the trial before me. DuBois also admitted
that on February 12 he worked 1 1/2 hours' overtime.
Goodson stated there were 10 carpenters complaining to
him about sufficient overtime work, and in these respects
testified as follows:
They were trying to file a grievance procedure and had
complained a number of times to the steward, Mr.
Scott, and the answer he gave them was he didn't give a
damn about them as long as he got his overtime.
In view of the above and numerous other events and
circumstances in this record-DuBois did not stand alone
in making complaints on overtime, but this matter was also
of considerable concern to other employees and, therefore,
it becomes much more difficult to prove that Respondent's
retaliation, if any, was specifically directed at DuBois, and
especially so when it is obvious there was real internal
dissention within the membership of the Union on the
11 The complaint does not contain any allegation that the events
surrounding the January strike were concerted or union activities on behalf
of DuBois . The General Counsel's allegations in regard to DuBois were
based on the complaint which he made on February 3 about not being
assigned overtime on February 2, and discussions of overtime on February
3.
12 Glasscock stated it was a combination of these factors which
prevented the assignment of overtime to DuBois. He also testified that
moving the materials into the toolshed caused "double work" for the
employee who had to clean up. Foreman Reynolds stated that box
construction was much lighter duty than working on the elevator shaft
itself . Moreover , on cross-examination DuBois admitted Glasscock had
proper allocation of overtime, and the attitude of Scott, as
aforementioned, is clearly indicative of this fact.13
The testimony of Glasscock, Reynolds, Foreman Luther
Parrish, and Assistant Project Superintendent George
Parks firmly established that DuBois spent a lot of his time
talking to other employees and they had received
complaints about his interrupting other men's work, and
this is why Reynolds regarded him as one of his least
productive carpenters. At the conference on February 3,
the caliber of DuBois' work, and the fact that he did not
stay on the job but wandered around talking to other
people was discussed with him, as forestated. As pointed
out, the testimony of Glasscock as to the above is also
supported to some extent by the statement of Goodson who
testified that DuBois promised to "make a hand" and give 8
hours' work for 8 hours' pay. Parks specifically related in
his testimony that what work they were able to get out of
DuBois was "fair" but they could not get much production
out of him, stated that he would not stay at his job and did a
lot of talking to others, and about every day DuBois would
do something not in accordance with proper procedure.
Foreman Luther Parrish testified that the complaint he had
about DuBois was his "wandering around" and several
times a day talking to other employees and such
interruptions lasting 5 to 15 minutes. Reynolds testified that
in December 1969, he started receiving complaints on
DuBois from various people including Parks and Beck's
employees, and some of the complaints would be that
DuBois was talking to them about matters completely
unrelated to the job.14
At the hearing I had the opportunity to observe DuBois,
and from his testimony, general demeanor, and otherwise,
it can be readily noticed that he is an extraordinary
outgoing individual and takes great delight in engaging in
conversations and in just plain talking to anyone at
anytime. Therefore, I have no hesitation in believing
witnesses for the Respondent who testified in this respect
and also I have no hesitation in believing that his
compulsory talking hindered his production. The General
Counsel makes an argument that since there was a supply
of boxes on hand at the time of discharge, DuBois must
have produced his share of the work. However, there is no
showing in this record the normal amount or average per
day production of boxes by any one carpenter, and no
records were kept on some as this is not incentive work.
Reynolds was not satisfied with his production, and based
on the demeanor of the witnesses and on the numerous
other factors and circumstances, as aforestated, I believe
him.
In summary, there is no showing that any activity aside
from the protest about the February 2 overtime ever came
spoken to Reynolds about his working in the toolshed and this is why he
was not given overtime.
13 The collective-bargaining agreement between the Carpenters District
Council and Respondent contains no provision dealing specifically with
equal distribution of overtime , art. 11. sec . 2. of the contract provides that
neither the constitution nor the bylaws of the District Council or any local
union shall be considered a part of the agreement "nor used in the
interpretation thereof."
14 Apprentice carpenter Stephen Lewis worked with DuBois and as a
rebuttal witness for the General Counsel testified that DuBois could read
prints and was a good mechanic.
CONTINENTAL SLIP FORM BUILDERS , INC. 851
to the attention of any official of the Respondent. Nor does
the testimony demonstrate that the Respondent in any way
resented DuBois' complaints on February 3 about over-
time. After February 3, he regularly worked overtime as did
other employees or carpenters, and then on February 13 the
Company decided to reduce its work force. The contract
between the Respondent and the Union contains no
requirement that employees be laid off in seniority order.i5
There is lacking in this record a sufficient preponderance
of evidence to support a conclusion that DuBois was laid
off or discharged for concerted or union activities. The
Respondent's assertion that it laid off DuBois solely
because of a reduction in force finds adequate support.
Gerald Aydelott started working for the Company as a
carpenter in early December 1969, and at the start of the
strike was acting job steward in the place of David Scott.
On January 9, Goodson came to the jobsite and instructed
Aydelott to come to his office and when Aydelott left the
jobsite all the carpenters working for Respondent also left,
as aforestated.
The General Counsel points out that Aydelott remained
loyal to the Union regardless of the reason for the strike,
that he obeyed Goodson's instructions to walk off the job
knowing all the union member carpenters would follow
suit, and the fact that Respondent filed unfair labor
practice charges against the Union (irrelevant to the issues
in this case) points up some of the feeling that was
engendered by the strike. In essence, the General Counsel is
saying that Aydelott was laid off because he happened to be
the acting steward for the Union on the day of the strike,
because he was instrumental in informing the Company
that the carpenters were leaving, and because he stayed out
on strike until it was settled.
The Respondent clearly recognized that Aydelott was not
responsible for the strike which occurred, but that it was
called by Kenneth Banks, the business representative of the
District Council, and Goodson.16 Other than obeying the
union directions on January 9 the only other thing Aydelott
did was to tell DuBois he was not to work overtime on
February 2, and he was told to do this by Foreman
Reynolds. There is no showing of any resentment toward
Aydelott and there is no showing that the relationship
between the Company and Aydelott was not amicable.
Foreman Reynolds stated that Aydelott was selected for
layoff because he was one of the three carpenters
considered least productive. Reynolds again explained that
when he assigned work to them-including Aydelott-they
got involved with other things and in his opinion could not
fulfill their assignment within certain periods of time. In the
final analysis, there is no evidence in contradiction and
certainly no showing that any other reason existed for
Reynolds' decision. I find there is lacking a preponderance
of evidence to support a conclusion that Aydelott was
discharged or laid off for concerted or union activities.
15 There is no proof in this record that Respondent used Beck's
carpenters to do work subsequent to February 13 In fact Glasscock stated
he had to get additional work from Beck in order to avoid another
reduction in force. There are arguments that Byrd should have been laid
off because he reported to work on February 12. However, Byrd was hired
as a foreman, and neither DuBois or Aydelott was so qualified
16 Banks and Goodson had a conference with Glasscock on January 8
The complaint also alleges three instances of Section
8(a)(1) violations. On February 2, Foreman Reynolds is
alleged to have threatened DuBois with a loss of overtime
earnings because he was a union agitator. Reynolds gave
credited testimony denying any such statement and even
the testimony of DuBois does not support this allegation.
DuBois testified that Reynolds stated he did not want him
up on top because DuBois would just "agitate" the men. In
this context the word agitate would refer) to (disturbing the
other carpenters in their work, and with his tremendous
propensity and natural inclination for endless verbosity, it
is readily conceivable how DuBois could be extremely
agitating with his continual talking. There is also an
allegation that on February 3 Glasscock threatened DuBois
with loss of overtime because he considered him a union
agitator. I have set forth this particular incident previously
herein, and for the reasons given I have credited the denial
by Glasscock. Again, however, I briefly mention the fact
that Glasscock directed that DuBois be paid for the full day
on February 3, although he was off work until I in the
afternoon. As Respondent points out, it would be unlikely
that Glasscock would have directed that DuBois be paid for
8 hours' regular time and 4 hours' overtime if he had any
resentment against DuBois on the basis that he was a union
agitator. At the February 3 conference Glasscock was
trying to encourage DuBois to stay on the job and put in a
full 8-hour day, as aforestated.
The third specific 8(a)(1) allegation is that on February
13, Foreman Reynolds told DuBois that he was being
terminated because of his continued grieving concerning
the overtime work. As I have previously noted, there is
evidence that on the morning of February 13 some of the
carpenters, including DuBois, met with Goodson in the
toolshed and talked to steward Scott about the allotment of
work. As noted there is no evidence that Scott took the
matter up with management nor was there any showing
why Scott was not called as a witness if he did so. The
General Counsel had the burden of proving that such a
conversation occurred if it did, and surely, as the
Respondent argues the union steward would have been the
obvious person to testify about it.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.
concerning assignment of jack rods and whether the Company would go to
two or three shifts The Union wanted two shifts but the Company
announced its plans to go to three shifts, and, therefore , when the strike
resulted on the next day the Respondent knew it was officially called by
Banks, and that Aydelott had absolutely nothing to do with it other than to
accept and follow the directions given to him