Dravo Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 872 (N.L.R.B. 1977)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dravo Corporation and Lewis Blake . Case 6-CA-8877
March 17, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On August 3, 1976, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, the General Counsel 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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(a)(3) and (1) of
the Act by refusing to recall Lewis Blake from on or
about September 3, 1975, until January 14, 1976, and
by thereafter conditioning his recall on his refraining
from acting as steward on behalf of the Union.2 He
further concluded that Respondent had not, as
alleged, violated Section 8(a)(1) by threatening to
discharge Blake for filing charges with the Board and
by threatening to subcontract unit work if Blake were
appointed steward. Accordingly, he dismissed the
complaint in its entirety. For the reasons set forth
below, we find that Respondent has violated the Act
as alleged.
The relevant facts are as follows: Respondent and
the Union at all times material herein have been
parties to a collective-bargaining agreement .3 Re-
spondent first hired Blake in 1963 to work as a
laborer on its construction project at the Mobay
Chemical Company plant in New Martinsville, West
Virginia. He was later appointed steward on that
project by Al Ducci, the Union's business agent, and
continued in that capacity until he quit in 1965. Blake
later returned to work for Respondent on the Mobay
project as a regular laborer in late 1971, was laid off
in 1972, and was recalled by Respondent in early
1973. Shortly after Blake's recall in 1973, Ducci
i Inasmuch as no party has raised before us the issue of deferral of this
proceeding under Collyer Insulated Wire, A Gullf& Western Systems Co, 192
NLRB 837 (1971), we find it unnecessary to pass upon the Administrative
Law Judge's discussion of Joseph T Ryerson & Sons, Inc., 199 NLRB 461
(1972), with respect to the appropriateness of deferral herein.
2 The Union involved herein is Local 1149, Laborers' District Council of
Charleston, West Virginia, Laborers' International Union of North America,
AFL-CIO.
3 Respondent is a party to a national agreement between the Laborers'
International Union and the National Constructors Association of which
named Blake as steward. When Ducci so informed
Murray Willett, Respondent's construction superin-
tendent, the latter, alluding to an apparent under-
standing between Ducci and himself, stated, "I
thought you promised me that [Blake] wouldn't be
the steward." However, Willett pursued the matter no
further and Blake thereafter served as steward.
In March 1975, Respondent's contract with Mobay
terminated and all employees, including Blake, were
laid off. When Respondent resumed operations at the
project under a new agreement with Mobay in
September 1975, Willett called the Union's hiring hall
and requested two laborers by name, but refused to
request Blake , the last steward on the job. Ducci
objected to Willett's refusal to adhere to the local
practice of giving first preference in recall to the prior
steward.4 Willett responded that he would not recall
Blake because of the steward's constant interference
with the work of other contractors. Ducci took the
position that Blake had not in fact engaged in such
conduct. When the parties were unable to reach
agreement on this issue , the Union filed a grievance
which, however, was dropped by the Union at the
International level. On December 29, 1975, Blake
filed the instant charges on his own behalf.
Willett subsequently informed Ducci on January
13, 1976, that Respondent would recall Blake under
the condition that he not serve as steward. After
being informed of the condition upon which he could
return to work, Blake agreed to work as a regular
laborer and was reemployed on January 14, 1976. On
January 13, before Blake returned to work, Willett
told Ducci that there was a "possibility" Dravo would
subcontract all its work if Blake were named steward.
Thereafter, on January 23, Willett called Blake into
Respondent's office and tried to persuade him to
drop the unfair labor practice charges, arguing that
Blake should be satisfied since he was back at work.
When Blake answered that he had not dropped the
charges, Willett replied that "[n ]o one works for
Dravo that has charges agin' 'em." At a subsequent
meeting held on January 27, with both Blake and
Ducci present, Willett said that Mobay would not
allow Blake to work on the project if he refused to
withdraw the charges and that, if Blake were named
steward, Mobay "would probably" subcontract the
work to others. After expressing the view that Blake
should drop the charges because the case was a
Respondent is a member . This contract is administered on behalf of the
International Union by Local 1149 in conjunction with a Local Agreement,
which is incorporated into the National Agreement . The national agreement
provides , inter ahq that there shall be no nonworking stewards; the steward
shall not cause any interference with work progress ; and the steward "shall
be concerned with the employees of his Employer and not with the
employees of any other Employer working nearby."
4 The agreement between Respondent and the Union also provides, in
pertinent part: "In the event work is stopped on any project for any reason,
the steward shall be the first man recalled."
228 NLRB No. 95
DRAVO CORP. 873
"loser," Willett pointed out that problems could be
avoided if Blake took his advice. Willett also repeated
his earlier remarks to Ducci that Respondent might
subcontract its work if Blake served as steward.
Blake continued to work as a regular employee
until April 14, 1976. At that time Respondent, for
economic reasons , laid off five laborers including
Blake , the last laborer hired on the project. Four
other laborers, including the then current steward for
the Union, remained on the job 5
Respondent urged at the hearing, and the Adminis-
trative Law Judge subsequently found, that it had
sound justification for any discrimination against
Blake . In this connection, Willett, who was on the
project from April 1964 through December 1973, and
subsequently returned to the jobsite in September
1975, testified that he had received about 25 com-
plaints over the years relating to Blake's interference
with the work of other contractors. According to
Willett's testimony, such complaints began soon after
the appointment of Blake as steward in the mid-
1960's. Norman Hartshorn, Mobay's construction
superintendent, who worked on the project from 1964
until August 1974, testified that during Blake's tenure
as steward he received some 15 to 20 complaints from
various contractors that Blake was interfering with
their work.
Respondent further presented evidence of two
incidents which occurred during Blake's second term
as steward from 1973 to 1975, showing that he
interfered with the work of other contractors on the
Mobay jobsite in violation of the contractual agree-
ment between Respondent and the Union. The first
incident occurred sometime in 1973 after Blake was
reappointed as steward. At that time , Consolidated
Engineers was employing laborers, ironworkers, and
pipefitters in the construction of a warehouse at the
Mobay jobsite. The record reveals that the Ironwork-
ers steward instigated the controversy by complain-
ing to Blake that other employees on the Consolidat-
ed Engineers job were being assigned laborers' work.
After the two stewards walked across the street to
observe the job, Blake expressed the opinion that the
laborers were doing their own work. Both Blake and
the Ironworkers steward then walked back to the
Dravo jobsite. Subsequently, Consolidated Engineers
complained to Respondent about Blake's activity.
Thereafter, in the summer of 1973, Blake observed
the absence of laborers on a job where Riverside
Services was engaged in laying a blacktop surface at
the New Martinsville project. When he contacted
officials at the union hall to advise them of the
situation, Blake was told by Ken Kuritz, the assistant
S With respect to the layoff of union stewards, the contract between
Respondent and the Union states that "The steward shall not be discrimi-
nated against for discharging his duties as a steward . Before the EMPLOY-
business agent, to either give Riverside Services a
message or have a representative call the hall. Blake
subsequently informed Robert Litman, the owner of
that company, that Kuritz had said the Union would
shut down his project if he continued using other
crafts to perform laborers' work. According to the
credited testimony of Litman, Blake returned the
following day to again protest, this time in a hostile
and belligerent manner, that Riverside Services was
performing laborers' work with other employees.
Litman also testified that Blake had accused several
of his employees of performing laborers' work and
had interfered with their work progress. Thereafter,
Litman registered complaints concerning Blake's
conduct with Willett and Hartshorn. Although Wil-
lett testified that he verbally warned Blake on
numerous occasions concerning his activities as
steward, he conceded that he never took any other
disciplinary action against Blake during his tenure.
The Administrative Law Judge found that Blake in
fact had interfered with the work of other contractors
in contravention of the contract during the period of
1973-75, and that Blake did not improve his perfor-
mance as steward despite numerous warnings by
Willett. He further found that, although Respondent
had sufficient cause to discharge Blake prior to his
layoff in March 1975, Respondent refrained from
taking any harsh disciplinary action during Blake's
tenure as steward in order to avoid a serious
confrontation with the Union. He therefore conclud-
ed that Respondent's refusal to recall Blake in
September 1975 was lawful as a disciplinary act, less
harsh than outright discharge and sanctioned by the
contract, and was not an effort to deny the Union its
statutory and contractual rights to designate its
steward.
The Administrative Law Judge further found that
Respondent's recall of Blake in January 1976 on the
condition that he refrain from serving as steward was
lawful. In this regard, he concluded that the parties
were aware that the condition was unenforceable and
that, in recognition of the Union's and Respondent's
respective rights under the contract, Willett, Ducci,
and Blake had come to a "gentlemen's agreement"
that the latter would not be appointed steward
pending the outcome of the instant proceeding.
The Administrative Law Judge additionally found
that the statements made by Willett to Ducci and
Blake in January 1976 did not constitute unlawful
threats in violation of Section 8(a)(1). With respect to
Willett's statements concerning Blake's withdrawal of
his charges with the Board, the Administrative Law
Judge concluded that they did not amount to threats
ER may discharge or layoff a steward, the EMPLOYER must first take this
matter up with the Business Representative for adjustment."
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of discharge, finding that the parties' understanding
that Blake would not serve as steward pending the
outcome of this proceeding dispelled any suggestion
that Blake would be terminated and that, in any
event, Blake did not withdraw his charges and in fact
continued to work for Respondent. As for Willett's
statements that Mobay would not permit Blake to
work on the project if he did not withdraw the
charges and that, if Blake became steward Mobay
would possibly subcontract to others, the Administra-
tive Law Judge concluded that Willett had no
authority to speak for Mobay. Finally, the Adminis-
trative Law Judge considered Willett' s remarks
concerning the possibility that Respondent might
subcontract out its work if Blake were named steward
to be an "empty threat" inasmuch as Ducci and
Blake were aware that under the contract the existing
unit of laborers would remain intact in the event the
work was subcontracted out.
Contrary to the Administrative Law Judge, we
conclude that Respondent's refusal to recall Blake on
or about September 3, 1975, and its subsequent recall
of Blake on January 14, 1976, conditioned upon his
refraining from serving as the Union's steward, were
violative of Section 8(aX3) and (1). Thus, the Board in
similar cases involving contractual limitations on
stewards' activities has held that an employer's
restrictions on employees' and a union's rights to be
represented by persons of their choice cannot be
diluted in the absence of compelling evidence of
legitimate considerations.6 We fmd that such compel-
ling evidence does not exist in this case.
It is clear that the events relied upon by Respon-
dent to justify its actions against Blake occurred well
before the end of his last tenure as steward in March
1975. Thus, although Willett testified that he had
received numerous complaints concerning Blake's
conduct as steward, he conceded that many of these
complaints were received during the mid-1960's, and
it is significant to note that Willett himself was not
even present on the jobsite from December 1973 until
his return in September 1975. Similarly, Hartshorn,
who also testified as to having received numerous
complaints, had left the project in August 1974.
Additionally, the two specific incidents of Blake's
alleged interference with other contractors relied
upon by Respondent occurred during 1973.
Furthermore, although the Administrative Law
Judge concluded that he could not lightly disregard
Blake's interference with other contractors during his
tenure as steward, it is evident that Respondent itself
did not view Blake's conduct during that period with
the same degree of concern. Thus, despite the
contractual clause providing that a steward shall be
concerned only with employees of his employer,
Respondent filed no grievance under that contract
concerning Blake during his tenure as steward, nor
did it choose to impose any harsh discipline on him.
Rather, the only actions taken by Respondent against
Blake during his stewardship were in the form of
verbal warnings.
In these circumstances, we conclude that both
Respondent's asserted reasons for refusing to recall
Blake and its subsequent conditional recall of Blake
were of an arbitrary, if not pretextual, nature, falling
far short of any compelling justification based upon
legitimate considerations.? We further conclude that
the natural and foreseeable consequence of Respon-
dent's conduct was to discourage active membership
in the Union by its employees and, particularly, to
discourage employees from serving as stewards on
behalf of the Union. Accordingly, we find that
Respondent has violated Section 8(aX3) and (1) of
the Act.
Additionally, we conclude that Willett's statements
to Ducci and Blake during January 1976 constituted
unlawful threats in violation of Section 8(a)(1). It is
clear that Willett in his attempt to "persuade" Blake
to withdraw his charges filed with the Board stated,
"No one works for Dravo that has charges agin"em,"
and further stated that Mobay would not allow Blake
to work on the project if he refused to withdraw the
charges. Unlike the Administrative Law Judge, we do
not fmd that the purported " gentlemen's agreement,"
the absence of any express authority of Willett to
speak on behalf of Mobay, or the fact that Blake did
not withdraw his charges and continued to work,
sufficient to negate the threatening nature of Willett's
statements. We further fmd that Willett's remarks
concerning the possibility that Respondent and
Mobay might subcontract out the unit work of
laborers to constitute more than mere "empty
threats." Thus, contrary to the Administrative Law
Judge's finding, there was no clear guarantee, con-
tractual or otherwise, that in the event Mobay
selected a subcontractor other than Respondent to
perform the work on its project, or in the event
Respondent chose to subcontract out its work, the
laborers involved would continue to work on the
jobsite. Finally, we find that Willett's statements were
an integral part of its unlawful conduct in refusing to
recall Blake and later conditioning his recall, de-
6 See Freezer Queen Foods, Inc., 215 NLRB 638 (1974), and the cases consider such an agreement sufficient justification for Respondent's actions.
discussed therein . Thus, it is clear that any agreement by Blake to return to work on the
r Even assuming arguendo that Willett, Ducci, and Blake entered into a condition that he refrain from serving as steward was not a voluntary
"gentlemen 's agreement" that Blake would not serve as steward pending the decision, but rather was an act resulting from a coerced choice between
outcome of this proceeding, we do not, as did the Administrative Law Judge, forgoing his employment or forgoing his Sec. 7 rights.
DRAVO CORP.
signed to insure that Blake would not serve as the
Union's steward.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, we shall
order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
purposes of the Act. Such affirmative action shall
include an order that Respondent make Lewis Blake
whole for any loss of earnings suffered by him by
reason of Respondent's unlawful refusal to recall him
from the period of on or about September 3, 1975, to
January 14, 1976. Inasmuch as Blake, but for
Respondent's unlawful conditioning of his recall,
would have served as steward after January 14, 1976,
in accord with the desire of the Union, and would
have been among the last laborers laid off following
Respondent's April 14, 1976, layoff in accord with its
past practice, we shall order that Respondent make
Blake whole for any loss of earnings from that date
and shall require that Respondent offer him reinstate-
ment. Backpay shall be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), together with interest at the rate of 6
percent per annum as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Additionally, we
shall require that Respondent notify the Union, in
writing, with a copy to Blake, that it has no objection
to the selection of Blake as the Union's steward.
CONCLUSIONS OF LAW
1. Respondent Dravo Corporation is an employer
engaged in commerce within the meaning of Section
2(2),(6), and (7) of the Act.
2. Local 1149, Laborers' District Council of
Charleston, West Virginia, Laborers' International
Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By refusing from on or about September 3,
1975, until January 14, 1976, to employ or rehire
Lewis Blake on the Mobay project and by subse-
quently conditioning Blake's employment upon his
refraining from serving as steward on behalf of the
Union , Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By threatening to subcontract out the unit work
of employees represented by the Union in the event
that Blake was reappointed steward by the Union,
Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act, and thereby has engaged
875
in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By threatening Blake with discharge if he did
not withdraw the charges filed by him with the Board,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dravo Corporation, Pittsburgh, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to employ or rehire Lewis Blake
because of his activities as steward on behalf of Local
1149, Laborers' District Council of Charleston, West
Virginia, Laborers' International Union of North
America, AFL-CIO, and from conditioning the
employment of Blake upon his refraining from
serving as the Union's steward.
(b) Threatening to subcontract out the unit work of
employees represented by the Union if Blake is
appointed steward by the Union.
(c) Threatening to discharge employees because
they filed charges with the Board.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Lewis Blake immediate and full reinstate-
ment to his former job or, if that job is no longer
available, to a substantially equivalent position,
without prejudice to his seniority or other rights,
privileges, or working conditions, and make him
whole for any loss of pay or other benefits he may
have suffered as a result of the discrimination against
him in the manner set forth in the section hereof
entitled "The Remedy."
(b) Notify Local 1149, Laborers' District Council of
Charleston, West Virginia, Laborers' International
Union of North America, AFL-CIO, in writing, with
a copy to Lewis Blake, that it has no objection to the
selection of Blake as the Union's steward.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its offices on the Mobay construction
project in New Martinsville, West Virginia, copies of
the attached notice marked "Appendix."8 Copies of
said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by a
representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
8 In the event that this 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF T'E
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, the National Labor
Relations Board has decided that we violated the law
and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide
by the following:
WE WILL NOT refuse to employ or rehire Lewis
Blake because of his activities as steward on
behalf of Local 1149, Laborers' District Council of
Charleston, West Virginia, Laborers' Internation-
al Union of North America, AFL-CIO, or condi-
tion the employment of Blake upon his refraining
from serving as the Union's steward.
WE WILL NOT threaten to subcontract out the
unit work of employees represented by the Union
if Blake is appointed steward by the Union.
WE WILL NOT threaten to discharge employees
because they filed charges with the Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed under Section 7 of the
Act.
WE WILL offer Lewis Blake immediate and full
reinstatement to his former job or, if that job is no
longer available, to a substantially equivalent
position, without prejudice to his seniority or
other rights, privileges or working conditions, and
WE WILL make him whole for any loss of pay or
other benefits he may have suffered as a result of
our discrimination against him, with interest at the
rate of 6 percent per annum.
WE WILL notify Local 1149, Laborers' District
Council of Charleston, West Virginia, Laborers'
International Union of North America, AFL-
CIO, in writing, with a copy to Lewis Blake, that
we have no objection to the selection of Blake as
the Union's steward.
DRAvo CORPORATION
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
charge in this case was filed on December 29, 1975, and the
complaint, alleging violations of Section 8(axl) and (3) of
the Act, issued on February 26, 1976. The hearing was held
on May 19, 1976, at New Martinsville, West Virginia. Briefs
were filed by the General Counsel and Respondent and
have been duly considered.
The essence of this complaint is that Respondent Compa-
ny refused to recall Lewis Blake, the Charging Party, to his
former job as a working steward and recalled him thereafter
only on condition that he agree not to be the steward for
employees represented by Local 1149, Laborers' District
Council of Charleston, West Virginia, Laborers' Interna-
tional Union of North America, AFL-CIO, hereinafter
called the Union.
Respondent, a Pennsylvania corporation with its princi-
pal office located in Pittsburgh, Pennsylvania, is engaged in
the business of constructing and manufacturing barges and
related products. At all times material herein, Respondent
was engaged as a contractor performing construction and
maintenance work for Mobay Chemical Company at the
latter's plant in New Martinsville, West Virginia. During
the past 12-month period Respondent received goods and
materials valued in excess of $50,000 from points located
outside the State of West Virginia for use in that State.
Respondent is 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
the Act.
1. THE BACKGROUND
This case has a history of more than a dozen years. It
began in 1963 when Lewis Blake was first employed by
Respondent Dravo as a laborer at the Mobay plant site. His
initial period of employment lasted until 1965 when he left
for personal reasons . During this period he had been
appointed union steward, servicing the Union's laborers
employed by Dravo. It was also during this period that
Respondent's construction superintendent, Murray Willett,
formed a very definite impression of Blake, which was
profoundly to influence their relationship in the future. As
Willett expressed it shortly, he liked "Lewie" as a man, but
not as a steward. Willett viewed Blake as an average
employee as long as he did not have the additional
DRAVO CORP.
responsibilities of a steward. According to Willett, during
Blake's tenure as a steward he would be regularly absent
from his job without permission and Willett would receive
complaints that Blake was engaged in union business at
another contractor's site.
Respondent, previously known as Blaw-Knox, at all
times material to these proceedings has been party to a
national agreement between the Laborers' International
Union of North America, AFL-CIO, and the National
Constructors Association of which Respondent is a mem-
ber. This contract is administered on behalf of the Union
by its Local 1149 in conjunction with a Local Agreement,
incorporated by reference in the National Agreement to the
extent not inconsistent with the latter . Article XV of the
National Agreement contains a three -step grievance proce-
dure leading to binding arbitration. Article XI provides that
subcontractors engaged to perform work covered by the
agreement must observe all the terms and conditions of the
agreement. With respect to the duties of stewards article VI
(G) provides that a steward shall be a qualified workman
performing work of his craft and provides further that there
shall be no nonworking stewards. Article XIII provides in
(6) that the steward shall not cause any interference with
work progress and in (7) that "Each steward shall be
concerned with the employees of his Employer and not with
the employees of any other Employer working nearby."
The relationship between the Union and Respondent has
been amicable for more than 10 years. While there have
been disagreements, apparently these have been settled
with a minimum of friction or ill will on either side.
When it came time to recall Blake in December 1973,
Willett believed that he had reached an agreement with Al
Ducci, the Union's business agent, that Blake would not be
appointed steward. In fact, Blake was recalled during this
period and initially worked only as a regular laborer.
However, shortly after Blake's recall in 1973 Ducci received
reports that Dick Phillips, the incumbent steward, was not
performing his duties. Following an investigation of these
complaints, Ducci replaced Phillips with Blake. Ducci took
Blake into Willett's office and informed the latter of the
change. According to Ducci, Willett protested, "I thought
you promised me that he wouldn't be the steward."
However, Willett carried the matter no further, recognizing
that the appointment of stewards under Respondent's
contract with the Union was the Union's, not the Compa-
ny's responsibility. But he did not forget.
In March 1975, Respondent's contract with Mobay
terminated and all employees, including Blake, were laid
off. During this period -1973-75- a number of incidents
occurred which, according to Respondent, establish that
Blake was guilty of interfering with the work of other
contractors on the Mobay jobsite in violation of the
contractual agreement between Respondent and the
Union.
The Consolidated and Litman Incidents-
According to Blake
Blake testified that he knew of only two incidents that
could be related to Respondent's charge that he had
exceeded his authority as union steward for Dravo's
employees. The first related to Consolidated Engineers, a
877
company building a warehouse on Mobay premises.
Laborers, ironworkers, and fitters were working for that
company across the road from Dravo. Blake estimated the
distance variously on direct and cross to be from 100 to 300
to 500 yards. At the suggestion of the Ironworkers steward,
the two stewards walked down the road to observe the
Consolidated job. The Ironworkers steward expressed the
opinion that other crafts were doing the work of his craft.
However, Blake said that the laborers were doing the work
of laborers and the two stewards walked back to the Dravo
jobsite. The second incident involved Robert Litman, the
owner of Riverside Services, a company engaged by Mobay
to lay black top surfacing. Blake testified that he happened
to drive past the Litman jobsite during the course of his
normal duties and noticed the absence of laborers on that
job. He called the union hall and was told by the assistant
business agent either to give Litman a message or have
Litman call the union hall. Blake approached Litman and
told him that Blake had a message for him or Litman could
call the union hall. Litman asked for the message, and
Blake told Litman that Ken Kuritz, the assistant business
agent, had told Blake to tell Litman that if Kuritz didn't get
the laborers' work that Kuritz would shut Litman down.
Blake also testified that he considered Litman a friend and
told Litman that Litman should not let happen to him what
happened to Frances Lost, who was "run out at Mobay" for
not living up to their agreements.
The Litman Incident-According to Litman
Litman gave a different version of his meeting with Blake
and Blake's impact on the work progress of Riverside
Services. Litman agreed that Blake had given him a
message. However, when Blake left Litman called the union
office. He spoke to an assistant business agent and was told
that the latter had received some calls from Blake about
Litman's Company. Litman said that he had laborers on
the job but occasionally used others to get the job done.
The assistant business agent responded that he understood,
but just to watch it. The next day Blake returned. He told
Litman to call the assistant business agent again, and
Litman did so. Litman was told a second time to "watch it"
because the Union had received several calls from Blake
about teamsters and operators doing laborers' work.
Continuing his conversation with Litman, Blake told him
that Litman was doing laborers' work with people other
than laborers; that Blake had run Litman's father-in-law
out for writing bad checks and would do the same to
Litman. Blake's attitude, according to Litman, was hostile
and belligerent. Litman was concerned and upset and
immediately reported the incident to Willett, who indicated
that he would do something about it.
Litman also testified that he had received reports from
several of his employees, a teamster and an operating
engineer, that Blake had accused them of performing
laborers' work and had interfered with their work progress.
Another of Litman's employees, a laborer, reported to
Litman that Blake had told the laborer that employees
other than laborers were doing the latters' work on
Litman's job, agitating and concerning the laborer. Litman
registered complaints with Willett and Norman Hartshorn,
Mobay's construction superintendent.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Litman Incident-Resolution of Credibility
While the testimony of these two witnesses is not
substantially in conflict, I credit Litman's version to the
extent it differs from Blake 's. Litman's testimony was direct
and straightforward , given without hesitancy. Blake, on the
other hand, did not initially remember his encounter with
Litman , and only recalled it on further reflection. He did
not contradict Litman's enlarged account of their meetings.
Blake impressed me as an assertive , aggressive individual,
who was zealous in fulfilling his duties as a steward and
exceptionally vigilant in seeking out and attempting to
rectify infractions of his union 's work jurisdiction. He
testified that if an instance arose where he was right and
Willett was wrong he, unlike some other employees, would
talk back, and I am satisfied that he would . I do not believe
he would present himself to Litman as a mere messenger if
Litman were, as Litman in effect conceded, in violation of a
work assignment rule. I find that Blake's message to Litman
was his own message as well as that of the Union 's assistant
business agent . I am also of the opinion, and find, that
Blake's reference to Frances Lost or Litman's father-in-
law was not a casual bit of advice to a friend , but a clear
and direct warning to one of Mobay's contractors, outside
the sphere of Blake's union stewardship , to cease using
other crafts to do Laborers work.
The Complaints About Blake-According to
Willett and Hartshorn
Willett testified that over the years he had received about
25 complaints relating to Blake 's interference with the
progress of other contractors' work. Although Willett
conceded that there were complaints about other stewards,
Blake was, in this respect , a prime offender. Willett had
received calls that Blake was interfering with the work at
Consolidated Engineers. Litman had called Willett to
complain about Blake 's interference with Litman's work
crew. Willett warned Blake about 15 times that Dravo had
no connection with other contractors , that if there was a
problem on another job, Blake 's business agent should
check it. However, despite the warnings , Blake's perfor-
mance did not improve . Willett complained to Ducci, who
said he was going to stop it, but Ducci was unable to do so.
At the conclusion of the Dravo contract in March 1975,
Blake had a reputation for interfering with the work
progress of contractors other than Dravo.
Hartshorn testified that over the years he had received 15
to 20 complaints with respect to Blake 's interference with
the work of contractors other than Dravo. He listed
complaints from Consolidated Engineers, Murphy Con-
struction, Litman's Riverside Services, and on a few
occasions from insulating contractors . The complaints were
serious enough to impel Hartshorn at one point to tell
Willett to control his steward, that if Willett wouldn't
Mobay would get someone else who could . Hartshorn
explained that he had to insist on this policy because
Mobay did not want people roaming over the plant due to
the toxicity of certain chemicals . He had voiced the same
complaint to all contractors and all stewards . They had
freedom if they went through the proper channels and
received the proper clearance.
The Failure to Recall and the Recall of Blake-
Events Within the 6-Month Limitations Period
As indicated above, Respondent closed down operations
at the Mobay plant in March 1975 . However, operations
resumed in September of that year . At that time Willett
called the union hall for two laborers by name , but refused
to call for Blake, the last steward on the job . Ducci objected
to Willett's refusal to follow the local practice of giving first
preference in recall to stewards . Willett took the position
that he would not recall Blake because Blake had been
interfering with the work of other contractors. Ducci denied
that Blake was guilty of such conduct . According to Ducci,
Blake had nothing to do with the incident at Consolidated
Engineers . Nor was he responsible for bringing the question
of the "fire watch problem" 1 to the attention of Mobay.
Lewie, Ducci insisted, was being accused of something he
wasn't guilty of doing. Nevertheless , Willett was adamant.
He would not recall Blake. A written grievance was filed.
Two meetings of the grievance committee were held at
Ducci's office . The last such meeting in October or
November 1975 was attended by Clyde Redenour, a
representative of the International . No agreement was
reached. In accordance with the grievance procedure the
case was processed to the International level. Thereafter,
Ducci spoke to Jack Wilkerson, the Union's regional
manager, and was told by Wilkerson that the Blake case
was a loser. The report to Wilkerson was that Blake was a
good worker, but he interfered with other contractors.
Willett testified that, if necessary, the Company was
prepared and ready to submit the issue of Blake s recall to
arbitration. Despite Ducci 's recommendation to the same
effect, the Union dropped the grievance at the International
level. In late December Blake filed the instant charge on his
own behalf.
Subsequent to the filing of the charge four meetings were
held in Willett's office during which , the General Counsel
alleges, Respondent further violated Section 8(a)(1) of the
Act. On January 13, 1976 , Willett suggested to Ducci that if
they were going to call Blake back they ought to do it then,
but that Blake would have to work under the condition that
he would not be the steward. Ducci said he would call
Blake and let him make the decision. Ducci did so and
Blake returned to work the next day and worked until his
layoff for economic reasons in April 1976. He was not
appointed steward during this period.
The January 1976 Meetings with Willett-
According to Ducci and Blake
Ducci testified that in his conversation with Willett Ducci
thought that Willett said, if Blake came back as a steward
there would be a "possibility" that Dravo would sublet all
their work. Blake also testified that on January 14 before he
went to work he saw Willett and the latter stated to him that
Dravo would subcontract the work if Blake were named
steward. On January 23 Blake again met with Willett. The
I A work assignment dispute between the Union and the Pipefitters who was at the time substituting for Willett, and took the issue directly to
Union on the Dravo job. Ducci was not able to get satisfaction from Reid, Mobay's safety director, going out of channels for that purpose.
DRAVO CORP. 879
latter, according to the testimony of Blake , stated that
Willett supposed that Blake had dropped the charges
against Dravo since he was back at work. Blake replied that
he had not dropped the charges. Willett responded that
generally, "No one works for Dravo that has charges agin'
'em." Willett is also alleged by Blake to have said that
Willett would have to bring Mobay in on it and, if he did,
"then you won't work here, or they won't let you work
here." Finally, Willett suggested that Ducci be brought
down to settle the matter and Ducci met with Willett and
Blake on January 27. Blake testified that at this meeting
Willett said that Mobay didn't want Blake to be the
steward. Blake asked if he were the steward would Mobay
subcontract the work and Willett responded that they
"probably would," that Willett was giving Blake a way
out- withdrawing the charges . According to Blake , Willett
repeated what he had said at the January 23 meeting, i.e.,
that if Blake did not drop the charges Mobay would not let
him work there. Ducci testified that he asked Willett if
Willett had not said at one of their previous meetings that if
Blake came back as steward Dravo would possibly sublet
all their work and Willett responded that that was a
"possibility." Ducci further testified that at this meeting
Willett said that Blake's case was a loser and if Blake
dropped the charges everything would be all right. The
upshot of the meeting was that Blake agreed to sleep on the
question of withdrawing his charges. Willett said that was
fine.
The January 1976 Meetings with Willett-
According to Willett
Willett testified that in January 1976 he told Ducci that to
bring Blake back as steward "would be asking for it"
because of all the problems Blake had created . Willett
conceded that at one point he had said Dravo might
subcontract its work, but explained this occurred when
Ducci threatened not to send him any laborers if he did not
recall Blake and asked what Willett would do if he couldn't
get any men, and under those circumstances Willett
responded,"We will subcontract." On a later occasion when
Ducci brought the subject up again , Willett said that he did
not mean it. Willett conceded that in January 1976, he had
asked Blake why Blake still had charges against the
Company and asked for a meeting with Ducci. At one of
these meetings Willett told Blake that he should drop the
charges because Willett thought Blake had a loser. Willett
denied generally that he had made any threats or promises
during these conversations . In answer to specific questions
from Respondent's attorney Willett denied: (1) saying if the
case went further Blake would not work on the Mobay
project; (2) saying if the charges were dropped everything
would be okay; (3) stating to Blake that if Blake were
steward Dravo would subcontract the work; (4) stating to
Blake that if Mobay were brought into the picture, Blake
wouldn't work there very long; (5) stating to Blake that if
the latter dropped the unfair labor practice charges Blake
would have a way out; and (6) stating that he had nothing
to do with Blake's not being steward that the entire fault
was Mobay's . Willett did not recall making a statement that
generally no one works for Dravo who has charges against
them.
I,
The January 1976 Meetings with Willett-
Resolution of Credibility
The testimony of Willett appears on the surface to be in
conflict with that of Blake and Ducci . Willett impressed me
as a fair, intelligent man, who would not deliberately tell an
untruth . But Ducci and Blake also impressed me as good,
solid men. They are rough-and-ready union leaders and not
as sophisticated as Willett . They might, in my opinion,
conveniently forget a damaging incident or tailor a story in
their self-interest. But I do not believe, having observed
them on the stand, that they would conspire to fabricate out
of the whole cloth an untruthful story. There is an old
maxim that truth is elusive and another that honesty is
relative . Where the truth favors an honest man he will
testify happily and in detail. Where the truth hurts he will
testify only so far as his conscience dictates . He may not
recall a painful statement or he may answer, "No" to a
question carefully phrased to make such an answer literally
true. Willett did not expand on the substance of his
conversations with Ducci and Blake in January 1976. Nor
did he deny stating to Blake that Mobay would subcontract
work if Blake were named steward . His testimony that he
stated to Ducci that Dravo would subcontract if Ducci did
not send him any men must relate to the period before
January 14, 1976, when Ducci was pressuring him to recall
Blake and the latter had not yet been recalled.
It is for the trier of facts to determine where the truth lies.
On the basis of a composite of the testimony of Ducci,
Blake, and Willett and in the context of this entire record, I
make the following findings of fact as to the meetings
between these individuals on January 13, 14, 23, and 27, all
in 1976. I find that on January 13 before Blake returned to
work Willett told Ducci that there was a "possibility" that
Dravo would sublet all their work if Blake were named
steward. At that time or thereafter Willett told Ducci that to
bring Blake back as steward would be "asking for it"
because of the problems Blake had created. Prior to Blake's
signing up on January 14 the paymaster took Blake into
Willett's office and Willett said, in effect, that Mobay did
not want Blake as steward and asked Blake to promise that
he would not be the steward. Blake said Ducci had
explained the conditions under which Blake was returning
to work. On January 23 Willett called Blake into Willett's
office and tried to persuade him to drop the unfair labor
practice charges, arguing that Blake should be satisfied
since he was now back at work , and saying that generally
no one works for Dravo while they had charges against it.
Willett stated that if he had to bring Mobay in Blake
wouldn't work there or Mobay wouldn't let him work there.
At the January 27 meeting with Ducci present Willett
repeated that Mobay wouldn't let Blake work there if he
didn't drop the charges and that, if Blake were named
steward, Mobay "probably would" subcontract. Willett
stated that Blake should drop the charges since he had a
loser. Willett repeated his earlier statement to Ducci, upon
the latter's inquiry, that there was a "possibility" that
Dravo would sublet its work if Blake were named steward.
Willett pointed out that problems could be avoided if Blake
withdrew his charges. Ducci took the position that the
matter was entirely up to Blake . Blake said he would "sleep
on it" and Willett said that was fine.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ANALYSIS
The Failure To Recall and the Recall of Blake
The General Counsel contends that Respondent's refusal
to recall Blake from September 1975 to January 14, 1976,
and his conditional recall on the latter date was an
unwarranted restriction on the Union's and the employees'
statutory right to be represented by a steward of their own
selection. In defense the Respondent argues : (1) that it had
a contractual right to hire the most qualified laid off
laborers within 6 months of such a layoff and that all
laborers recalled before Blake were more qualified than he;
(2) that it had a right not to recall Blake at all if he were to
be steward because as steward he was a "terrible" employ-
ee; and (3) that, in any event, Respondent had sound
business and contractual justification for any discrimina-
tion against Blake.
I find without merit Respondent's defenses (1) and (2).
Whatever Respondent's contractual right to determine the
qualifications of laborers, the record is clear, and I find,
that the motivating reason for Respondent's failure to recall
Blake and its attempt to insure that he would not be named
steward after his recall in January 1976, was Willett's
unhappiness with Blake's previous performance as steward
on the Dravo job. I am satisfied that Willett otherwise
would have yielded to Ducci's pressure and would have
followed the local practice of recalling a laid off steward
first.
The evidence in this case that Blake was guilty of
interfering with the work and work progress of other
contractors on the Mobay site, in violation of Respondent's
contract with the Union is, of course, background evidence
and available solely to shed light on Respondent's motiva-
tion for its conduct within the 10(b) period. I find that
Blake did, in fact, interfere with the work of contractors
other than Dravo during Dravo's preceding contract with
Mobay in 1973-75. Contrary to the General Counsel, I
cannot view lightly Blake's aggressive pursuit of his quarrel
with Litman over the latter's work assignments .2 This was
precisely the type of labor dispute that the Respondent's
contract was designed to avoid. Nor can I ignore the
excessive number of complaints that Willett and Hartshorn
testified that they had received protesting Blake's abuse of
his stewardship. Willett testified without contradiction, and
I credit his testimony, that on a number of occasions he
warned Blake about his activities affecting employees of
other contractors, that Blake promised to improve his
performance, but his performance did not improve . Blake,
if innocent, had an obligation to speak up in his own
defense against the charges reported to Willett and to
disprove them if possible. His failure to do so must be held
against him in these circumstances . There is no substantial
evidence in this record to support the General Counsel's
alternative position that Respondent acted against Blake in
retaliation for his protected activities as steward.
There remains for consideration the rather delicate
question whether Respondent's treatment of Blake was a
2 I find, contrary to the General Counsel, that Willett did not condone
Blake 's interference with the Litman job. Although Blake testified that he
was at a meeting with Willett and Litman dung which Willett said the
matter was "settled," Litman denied that Willett was present . Ducci recalled
disciplinary act, sanctioned by its contract, or an effort to
deny the Union the latter's contract and statutory right to
name the steward on the job. As the General Counsel
points out, under the contract a steward is entitled to no
preferential treatment and is subject to discipline, including
discharge, for failure to perform his duties. Indeed, Rosen-
lieb, Blake's successor as steward, testified that Ducci told
him that he would be fired if he meddled with a contractor
unrelated to Dravo. Despite the Consolidated Engineers
incident, the Litman incident and man complaints, Blake
was not discharged by Respondent. not? It seems to
me the answer to this question lies in the relationship
between Respondent and the Union. The discharge of a
steward, even if deserved, is a serious matter. It is an
affirmative act against an appointed union official. Wheth-
er or not it is legally defensible, the company must look not
only to its legal rights but to the preservation of the subtle
understanding that always exists in good faith collective
bargaining. Willett and Ducci understood each other. Each
would attempt to pressure the other, but each was careful
not to apply too much pressure. The failure to recall Blake
was annoying to Ducci and ground for a grievance, but it
was within the framework of their understanding. It was a
negative, not an affirmative act, an act to be opposed by the
Union and Blake , but an act that did not disrupt the
harmonious relationship between company and union. I
find that the failure to recall Blake was an act of discipline,
less harsh than an outright discharge, and for cause. So far
as the "conditional" recall of Blake is concerned, all parties
were at all times aware that this condition was unenforcea-
ble. Willett had the right to recall and to discharge for cause
under Respondent's contract. Ducci had the right under the
same contract to appoint stewards. Neither questioned the
other's right. Ducci testified without contradiction, and I
credit his testimony, that there was a gentlemen's agree-
ment among Willett, Ducci, and Blake that the latter would
not be appointed steward pending the outcome of the
instant case. Whatever moral obligation Ducci and Blake
assumed it was in the context of Willett's right not to recall
Blake as a form of discipline, and I am satisfied it was so
understood by all parties.
Willett's Statements in January 1976 to Ducci and
Blake
The complaint alleges that on January 13, 23, and 27,
1976, Respondent, through Willett, threatened to discharge
"employees" for filing charges with the Board and threat-
ened that unit work would be subcontracted if Blake were
appointed steward. I have set forth above the statements
which I believe Willett in effect made, to Ducci and Blake
on the above dates and on January 14. Willett wanted
Blake to drop his charges and not to be steward on the
Dravo job. As indicated above, the parties reached an
understanding that Ducci would not appoint Blake steward
until the merit of Blake's charge was decided in the instant
case . On its face this agreement would seem to dispel any
suggestion that Blake was threatened with discharge for
meeting with Blake and Litman and Litman said to "forget it." Willett did
not testify as to this incident. I credit Litman 's version that he met casually
with Blake and Ducci and that Willett was not present.
DRAVO CORP. 881
filing charges with the Board . However, Willett made other
statements, which fall into several categories : ( 1) Willett's
predictions as to action that Mobay might take if Blake did
not drop his charges or became steward , and (2) Willett's
predictions as to action that Dravo might take . As to (1),
clearly Willett had no authority to speak for Mobay.
Hartshorn had told Willett to control his steward or Mobay
would get another contractor . Hartshorn may have said
other things . In any event , suggestions by Willett that
Mobay might in the future take some action against Blake
cannot in this context be held to constitute an unlawful
threat by Respondent Dravo , a contractor entirely indepen-
dent of Mobay . As to (2), the threat to subcontract work is
normally a serious matter because it entails the loss of unit
work and the jobs of incumbent employees . Ducci and
Blake were keenly aware , however, that their contract
covered all subcontractors of Dravo and their existing unit
would remain intact even if Dravo subcontracted its work.
Under these circumstances , I find Willett's statements that
Dravo might "possibly" subcontract its work to be an
empty threat . Nor can I take Willett's statement that
generally no one works for Dravo while they have charges
against it as a threat to discharge Blake . Perhaps Blake was
an exception , but he did not drop his charge and he was
working for the Company and he continued to work for the
Company with an understanding that , if vindicated in this
case, he would probably be appointed steward.
[Recommended Order for dismissal omitted from publi-
cation.]