Dravo Corp.

National Labor Relations Board - Board Decisions

Feb 14, 1984

268 N.L.R.B. 953 (N.L.R.B. 1984)

DRAVO CORP.
Dravo Corp. and Marvin W. Brown
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
U.S., AFL-CIO, Local 96 and Marvin W.
Brown. Cases 11-CA-10827 and 11-CB-1169
14 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 August 1983 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, the Respondent Employer filed a motion to
dismiss the Charging Party's exceptions and a brief
in support of the judge's decision, and the Charg-
ing Party filed a response to the Respondent Em-
ployer's motion to dismiss. I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
t In light of our agreement with the judge's finding of no violation, we
find it unnecessary to pass on the Respondent Employer's motion to dis-
miss the Charging Party's exceptions as untimely. Contrary to his col-
leagues, Chairman Dotson would grant the motion and strike the excep-
tions as not being timely filed. In all other respects the Chairman joins
the majority in its disposition of this proceeding.
· The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
proceeding was tried before me in Charlotte, North
Carolina, on June 22, 1983, pursuant to charges filed and
served on March 17, 1983, and complaint issued May 6,
1983, and amended June 15, 1983. The complaint alleges
that United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the U.S.,
AFL-CIO, Local 96 (the Union), failed and refused to
permit Marvin W. Brown to register on an out-of-work
list; threatened not to refer Brown for jobs because he
was delinquent in the payment of union fees; and refused
268 NLRB No. 146
to refer Brown to work at Dravo Corp. (Dravo or the
Company) because he was not a union member. The
Company further alleges that Dravo, by acting pursuant
to an exclusive referral agreement with the Union, failed
and refused to hire Brown, and thereby violated Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended (the Act). Both Respondents deny they com-
mitted unfair labor practices.
Upon the entire record and my observations of the
witnesses' demeanor as they testified before me, and after
considering the post-trial briefs of the parties, I make the
following
FINDINGS AND CONCLUSIONS
I. JURISDICTION AND LABOR ORGANIZATION
The pleadings establish (I) that it is appropriate for the
Board to exercise jurisdiction in this matter because
Dravo, a fabricator of pipes, meets Board and statutory
standards and is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and (2) that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Evidence and Discussion
Dravo and the Union are party to a collective-bargain-
ing agreement containing an exclusive hiring agreement
reading, in relevant part, as follows:
The Union agrees to furnish to the Employer,
Journeymen Plumbers, Pipefitters, Registered Ap-
prentices, and Worker Trainees as required by the
Employer. The Union shall select applicants for em-
ployment without discrimination against such appli-
cants by reason of or in any way affected by Union,
membership, by-laws, rules, regulations, constitu-
tional provision, or any other aspect or obligation
or Union membership, policies or requirements.
Further, there shall be no discrimination because of
race, creed, color, sex, or national origin.
Applicants shall register on an appropriate out-of-
work list at the Local Union office, and applicants
will be furnished by the Union to the Employer on
a "first-in"-"first-out" basis without regard to any
other condition, except:
Request by the Employer for certain applicants
as key men shall be honored.
Requests by the Employer for certain applicants
with special skills or on the basis of previous em-
ployment shall be honored.
The Employer retains the right to determine
competency and to reject any applicant.
The Union and the Employer agree to post a
copy of this procedure in places where notices to
employees and applicants for employment are cus-
tomarily posted.
If, upon request, the Union is unable within 36
hours to supply journeymen and apprentices ...
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer may secure employees from any
source.
The following notice was posted on the bulletin board
at the union hall throughout the period encompassing the
events herein:'
Applicants shall register on an appropriate out of
work list at the Local Union office, and applicants
will be furnished by the Union to the Employer on
a "first-in," "first-out" basis without regard to any
other condition, except:
Request by the Employer for certain applicants
as key men shall be honored
Requests by the Employer for certain applicants
with special skills or on the basis of previous em-
ployment shall be honored.
The Employer retains the right to determine
competency and to reject any applicant.
Brown paid an initiation fee to the Union in 1981, but
did not become a union member.2 As a permit man, he
did however pay a working assessment of $4 a week. He
was laid off by Dravo on March 5, 1982.
During the week after his layoff Brown went to the
union hall where he met with Tony Kiriakos, the
Union's business manger. Brown's testimony with respect
to this meeting is that they discussed the continuing
layoff at Dravo, and during this conversation Kirakos
said he did not consider Brown a union member because
he had not fulfilled his membership obligation. Where-
upon Brown asked about the initiation fee he had paid,
and was told that it had been put in a working assess-
ment account. Brown continues that Kiriakos told him
they did not send permit men out of the jurisdiction, but
"if anything happened around Charlotte or Dravo
opened back up that he'd get in touch with me." Brown
concedes that Kiriakos did not say he would not refer to
him to work within the Union's jurisdiction.
Kiriakos testified that Brown said he wanted to pay
$250 on his back working assessments, and asked Kiria-
kos to backdate the receipt to December 1981 so it
would be deductible from his income tax. According to
Kiriakos, he first refused but then, after Brown's contin-
ued requests, gave him a receipt dated in December and
gave the $250 to his secretary who wrote on the Union's
official records that it was received the last of February
because the February 1982 books had not been closed.
Kiriakos agrees that if asked he would have told Brown
he was not a member, and might have told him there
was work outside the Union's jurisdiction. Kiriakos
denies telling Brown that he would refer him to Dravo if
work became available.
Called as a rebuttal witness, Brown testified that he
paid the $250 on past due assessments in December 1981,
and thereafter the assessments were deducted from his
pay pursuant to a checkoff arrangement. The receipt
I Although it would seem probable that a copy of the procedure was
also posted at Dravo, Brown denies this was so, and there is no evidence
to the contrary.
I Union membership is not required as a condition of employment.
North Carolina is a right-to-work State. The parties have all proceeded
on the premise Brown is not a union member.
signed by Kiriakos shows $250 received December 30,
1981, for "union dues." On cross-examination, Brown re-
luctantly conceded he signed a checkoff authorization on
September 11, 1981, but then asserted it did not take
effect until January 1982.
The conflict between the testimony of Kiriakos, a
sometimes forgetful witness, and that of Brown, whom I
find incredible on other matters elsewhere in this deci-
sion, neither of whom had superior testimonial demean-
or, is obvious. There is, however, no logical reason for
Kiriakos to fabricate his testimony with respect to the
$250 for purposes of this proceeding. Moreover, it seems
highly improbable that a checkoff signed in September
would not be effective until the following January. On
the other hand, Brown's testimony that "If I had known
I was being laid off, they wouldn't have got no $250.00
out of me" is not unreasonable. On the whole, I cannot
say that either Kiriakos or Brown seemed the more cred-
ible on the content of this meeting. Accordingly, I do
not find that the testimony of Brown, the General Coun-
sel's witness, is entitled to more weight than that of Kir-
iakos except to the extent I conclude that Kiriakos did
tell Brown he was not a member and that permit men
were not referred to points outside the Union's jurisdic-
tion. 3
The testimony of Kiriakos and Moose that the local
business manager has no authority to refer permit men to
jobs outside the local union's jurisdiction is credited.
Brown returned to the union hall in April 1982, talked
to Kiriakos, discovered the work situation was the same,
and left. At no time did he ask Kiriakos to be put on the
out-of-work list.
James Richard Moose was elected union business man-
ager replacing Kiriakos effective July 17, 1982. Although
not yet in office, he was filling in for Kiriakos on July
12, 1982, when Brown came to the hall. It is probable, as
Brown testified, that he asked if any work' was available.
I do not, however, credit his testimony that Moose said
he would send Brown to work in Augusta, Georgia, if
he found Brown was in good standing. Moose was a
more impressive, natural, and believable witness in gen-
eral, and I credit him that he did not know of Augusta
work and made no such statement on July 12, 1982.
Moreover, as I have earlier noted, the business manager
has no authority to refer permit men outside his local
union's jurisdiction. Moose credibly testified that Brown
asked him to check his (Brown's) status with the Union,
and Moose advised the local record showed Brown
owed past assessments4 and had not fulfilled membership
terms. Brown responded that he had a $250 receipt.
Moose then told Brown that he would check with Kiria-
kos, Brown should bring his receipt in, and Moose
would straighten the matter out if there was a mistake.
Brown did not again contact the Union until August
24, 1982, when he wrote Moose the following letter:
I am more than concerned as to why you have
not wrote and told me concerning my status with
3 Compare Blue Flash Express, 109 NLRB 591 (1954).
4 The record is not clear with respect to the exact state of assessments
paid by or due from Brown.
954
DRAVO CORP.
the Union. Since I first contacted you in early July,
after the election for B.A., I have not heard any-
thing from you since. I am further concerned that
the company (Dravo) in which the union represents
laid me off with the belief that Plant 6 would be
closed and it has, but also that no one would be
transferred from Plant 6 to Plant 5, when you and I
know that Journeymen and apprentices alike would
be transferred where ever the work load is as a
common practice of the Company. While sitting at
the football game on August 15, 1982, 1 learned,
from a fellow Journeymen employee that is still em-
ployed at the Company, that there are at least 7
Journeymen with less seniority than I still on the
payroll. So much for that.
Yours truly,
/s/ Marvin Brown
Marvin W. Brown
P. S. Need to hear from you very soon concerning
a job placement.
Moose replied by letter of August 25, 1982, as follows:
In early July you came by my office. At that
time we discussed your returning to the office at a
later date when you had more time to discuss your
standing with the Local. I have been unable to
reach you by phone.
As you know Dravo Plant 6 has closed and to
my knowledge no Journeymen or Apprentices were
transferred from Plant 6 to Plant 5. There were sev-
eral Journeymen laid off at Plant 6 and were called,
by name, to Shop 5.
Since that time Shop 5 has laid off approximately
20 Journeymen and closed the 2nd shift completely
leaving only one shift in operation.
Being familiar with our contract you must realize
we have no seniority system in our working agree-
ment.
I would be delighted for you to come by the
office at your convenience to discuss your standing
with the Local.
On September 17, 1982,7 Brown returned to the union
office. Moose asked if he had brought his receipt and
wanted to examine the union records. Brown said he
would come back when he had more time. On this occa-
sion Moose told Brown that he had heard there was
work at Augusta, Georgia, for minorities and if Brown
were interested he should contact the business agent of
the Augusta local, and he might get hired. Moose denies,
and I credit his denial, that he told Brown he would not
5 Moose's daily log shows September 17, 1982, which is more persua-
sive than Brown's general date of October 1982. Moose seemed a candid
witness, gave prompt answers, and was believable. Brown, on the other
hand, left the distinct impression he was a calculating witness making a
distinct effort to fortify his case. On the basis of comparative demeanor
Moose was the more believable witness, and his testimony seemed uncon-
trived and truthful. Where their testimony in the record conflicts, I credit
Moose in any instance where Brown's testimony is not supported by
other credible evidence.
be referred out until he straightened out his payments to
the Union.
Brown neither visited Moose nor showed him his re-
ceipts until March 1983, but he did telephone Moose at
his residence one night in December 1982 or January
1983. Brown commenced the conversation by saying a
little bird had told him that if he paid his back assess-
ments and got a membership card Moose would refer
him to Dravo. Moose asked Brown who told him that.
Brown refused to say, whereupon Moose stated he did
not know who told Brown that, but whether or not
Brown was a member had nothing to do with him going
back to Dravo and Moose had no calls for men to go to
Dravo. Moose repeated his earlier advice that Brown
might get on at Augusta if he contacted the local busi-
ness agent there.
Brown then wrote the following letter to Dravo on
January 28, 1983:
After being laid off for eleven months, and not
being on the union hall directory because of an
error in their bookkeeping as of March 8, 1982, I
find it necessary to advise the company of my avail-
ability for work. Please advise me by correspond-
ence.
Dravo, by its employee relations manager, replied on
February 21, 1983, as follows:
As you know, we are in the process of rehiring a
few people for our Charlotte operation. As you also
know, we do our hiring through the Local 96
Hiring Hall per the conditions listed in the existing
union, management labor contract.
In order to be assured of a referral, you should
follow the out of work practice of signing the out
of work list at the local union office.
On March 4, 1983, Brown took his S250 receipt and
the February 21 letter from Dravo to the union hall. He
showed them to Moose. He also told Moose that he
knew he could not get on the out-of-work list because he
was not a member. Moose retorted that Brown knew
better because he was not a member when the Union
originally sent him to the job. At this point Bobby
Fowler, Ironworkers' business agent, entered to go to
lunch with Moose. Prior to and for a time during his em-
ployment at Dravo, Brown had been a member of the
Ironworkers' union local for which Fowler is the agent.
After Fowler's entry, Moose asked Brown if he had ever
asked anyone in the union office to put his name on the
out-of-work list. Brown said, "No." Moose then turned
to Fowler and related that Brown had said he knew he
could not get on the list because he was not a union
member. Fowler turned to Brown and said, "Bull ....
You signed my list for years before you was a member.
You know how the hiring hall works. You come up
when you get off and ask to get on the list or sign the
list and, when the next available job comes up and your
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
name comes up, you get referred out." Brown's only re-
sponse was, "Oh, I didn't think. I didn't think." 6
Following this colloquy, Moose again asked Brown if
he had ever asked to be on the list. Brown said he had
not, and then requested to be on it. Moose immediately
entered his name and the date on the list. Moose explains
that after the charges were filed he gave Brown a date
of August 24, 1982, on the list and so advised him in
writing as follows on April 28, 1983.
Enclosed please find a copy of page 6 of the con-
tract between this local union and Dravo Corpora-
tion among others. Please read this enclosure care-
fully. Should you desire a copy of this entire con-
tract, please come by the office, or I can, upon your
request, mail you a copy. Also enclosed please find
a copy of the document which has been continuous-
ly posted on this Union's bulletin board since at
least July 1, 1981, for all persons to see, read and
take notice of. Please read this document very
closely also. It is up to each person to specifically
request that his or her name be placed on the out of
work list.
You wrote me a letter dated August 24, 1982. In
this letter, you, as a post script, wrote "Need to
hear from you very soon concerning a job place-
ment." Then on March 4, 1983, you told me for the
first time you wanted your name placed on the out
of work list.
In an effort to settle any controversies I am effec-
tive immediately putting your name on the out of
work list as if your name had been placed on this
list on August 24, 1982, the date of your letter to
me about job placement. I am very hopeful that you
can be referred to a job within the near future. Ad-
ditionally, if you change your mind and want to be
informed of possible places out of North Carolina
where you might find work, please let me know im-
mediately.
I request that in the future if you want your
name on the out of work list, that you make your
request that your name be placed on the list very
clear.
Both Kiriakos and Moose testify that an employee
must affirmatively indicate he wants to be on the out-of-
work list before he is placed on it. This is consistent with
the express language of the contract, but I find it difficult
to believe and do not credit testimony that this proce-
dure is rigidly adhered to in each and every instance re-
gardless of the circumstances.
Brown concedes that he never asked to be put on the
out-of-work list prior to March 4, 1983, but claims he
knew of no such list and was unaware of any require-
ment that it was necessary to be on it to secure job refer-
ral. I do not credit his claims of lack of knowledge of
the list or its use. The contractual requirement of regis-
6 Brown asserts an inability to remember what Moose said to him be-
cause "My mind doesn't carry back that far as to whether he said that or
not," and only recalled, in response to a leading question by the General
Counsel, that Fowler acknowledged Brown had been a member of his
union. Moose's version reported in the body of this decision was straight-
forward, detailed, and essentially uncontroverted.
tration on the out-of-work list at the union office was
posted on the Union's bulletin board which Brown
passed each time he visited the union hall. His denial that
he did not see this is not credited. He remembers seeing
announcements of jobs in various parts of the country,
and I am persuaded his purported lack of recollection of
anything else is of a piece with his evasive testimony
with respect to the use of an out-of-work list by the
Ironworkers' union to which he previously belonged. 7
This testimony is at odds with Brown's statement in a
sworn pretrial statement that "This Ironworker local did
refer me to jobs off the out-of-work list," and with his
acquiescence to Fowler's March 4, 1983, statements to
him, credibly related by Moose, with respect to Iron-
worker hiring procedures when Brown was a member.
Moreover, Brown's January 28, 1983, letter to Dravo
refers to his not being on "the union hall directory." In
the absence of any evidence of any other "directly," I
conclude Brown was referring to the out-of-work list,
and thereby clearly indicating his awareness of the exist-
ence of such a list and the absence of his name from it.
In short, I am persuaded Brown knew of the contractual
requirements of registration from the date of his layoff,
but fashioned his testimony to conceal such knowledge. I
am also persuaded that the Union knew Brown was
looking for work. The Union also knew all referrals
would be from the list. The failure to put Brown on the
list is attributed by the Union to his lack of diligence in
requesting it be done. As I have noted, I place little reli-
ance on the Union's insistence that every employee who
wants to be on the out-of-work list must explicitly so
advise. Yet it cannot be ignored that Brown, despite his
unconvincing protestations to the contrary, was aware of
the existence and utilization of an out-of-work list in re-
ferring employees to work, but made no particular effort
to get his name on it until March 4, 1983, and then only
after expressly pressed by Moose to do so. I am persuad-
ed that Brown, knowing of the list, elected to rely on the
probability of recall on the basis of seniority because he
believed that he might be recalled on that basis, and be-
cause he also believed, as demonstrated by his testimony
and his telephone call to Moose in December 1982 and
opening remarks to Moose of March 4, 1983, that he
would not be referred from the list because he was not
and is not a member of the Union. In passing, I find that
the December phone call and the March 4 opening com-
ment were ploys designed to elicit admissions from
Moose that Brown was not referred because he was not
a member. Moose did not oblige.
I Brown's testimony referred to above as evasive reads:
Q. Do you know whether or not a work list was used?
A. Well, when I got-working with the Ironworkers you're fre-
quently out of work, unlike working in a fabrication shop. But to get
back to the Ironworkers, when we're out of work or the job is
coming to a close, we just simply call the business agent say, "What
have you got next?" And he'll tell you what he's got or he'll send
you somewhere. It wasn't a matter of ever signing or going in to
sign an out-of-work list or such a thing. We'd just simply call the
business agent
956
DRAVO CORP.
B. Conclusions
The General Counsel contends that had not the Union
refused to place Brown on the out-of-work list in March
1982 he would have been referred to Dravo prior to em-
ployees Wylie and Ratteree, who got on the list in July
1982. The General Counsel further asserts that before I
can find an unlawful refusal to refer on March 29, 1983,
the date Wylie and Ratteree was referred, I must find
that the Union unlawfully refused to put Brown on the
list in March 1982. This latter assertion reveals the Gen-
eral Counsel's basic contention to be that Brown was un-
lawfully denied registration on the out-of-work list in
March 1982, and therefore all succeeding failures to refer
him to work in accord with a March 1982 registration
are unlawful because such failures are unlawfully moti-
vated ab initio. I do not agree.
The record fairly indicates that Brown was aware of
the requirement that referrals would be made from the
out-of-work list; did not seek to be or even particularly
care if he were on the list until advised by Dravo it was
a sine qua non, but chose to rely on the job seniority
until disabused of that notion; and then sought to manu-
facture a no-referral because of nonmembership reason
by tactics designed to that end.
Neither Kiriakos nor Moose told him that he would
not be referred to Dravo, which is all he was seeking,
because he was not a member. Their failure or refusal to
refer him to work out of their jurisdiction was justifiably
grounded on a lack of authority to so refer permit men,
which Brown certainly was.
Kiriakos' advice to Brown in March 1982 that he was
not a member and thus not referrable outside the local's
jurisdiction was a plain statement of fact and contained
no unlawful element. Kiriakos neither promised nor re-
fused to put Brown on the out-of-work list, although he
in fact failed to do so, and Brown did not at that time or
ever press to be placed on the list even though he well
knew of its existence and utilization. It might have been
better, in hindsight, for Kiriakos to have put Brown on
the list, but the evidence simply does not warrant a find-
ing he did not do so because Brown was not a union
member. Other nonunion persons got on the list and re-
turned to Dravo. There is no apparent reason for Kiria-
kos to discriminate against Brown. The requisite unlaw-
ful hostility is totally absent. In addition to all this dis-
cussion, the plain fact is that Brown knew of the list
from the outset and further knew he was not on it, for
reasons previously set forth, and therefore may not be
accorded the advantage of the exception to Section 10(b)
of the Act set forth in Plumbers Local 40 (Mechanical
Contractors Assn.), 242 NLRB 1157 (1979), because that
case deals with the instance wherein an employee only
becomes aware of the discrimination more than 6 months
after it happened. There is no convincing evidence Kiria-
kos unlawfully excluded Brown from the list; and Brown
knew of the list, and had reason to believe he was not on
it, and made no effort to get on it. Accordingly, even as-
suming arguendo Kiriakos acted unlawfully, Brown was
aware of that action early in 1982 and Kiriakos' conduct
may not now be resurrected as a basis for the complaint
herein because such a resurrection goes beyond an at-
tempt to shed light on matters occurring within the limi-
tations period and becomes the foundation for the com-
plaint.8
As to events within the 6-month period preceding the
filing of the charge in the instant case, I specifically find
that Moose did not threaten to fail or refuse to refer
Brown because he was delinquent in the payment of
union fees or not a member, even though enticed by
Brown to so threaten or state, and the evidence does not
preponderate to a conclusion that the Union, within the
statutory limitations period, failed or refused to refer
Brown because of his lack of union membership or other
unlawful reason.
This is a simple case of an employee with knowledge
of the established lawful procedure failing to take advan-
tage of it, and then attempting to manufacture an unfair
labor practice to compensate for his own lack of dili-
gence. The complaint must therefore be dismissed.
Inasmuch as the evidence does not preponderate in
favor of a finding the Union violated the Act, I need not
reach the issue of Dravo's responsibility for the Union's
conduct by virtue of its being signatory to the collective-
bargaining agreement.
CONCLUSIONS OF LAW
1. Dravo is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has failed to sustain his burden
of proof for any allegation in the complaint, as amended.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended
ORDER 9
The complaint is dismissed in its entirety.
* See, e.g., Evening News Assn., 258 NLRB 88 (1981), particularly the
discussion at 91.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
957