Gust K. Newberg Constr. Co.

National Labor Relations Board - Board Decisions

Mar 11, 1969

174 N.L.R.B. 1108 (N.L.R.B. 1969)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 444 , International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (Gust K . Newberg Construction
Company ) and Samuel M. Stoddard. Case
13-C B-2435
March 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon charges filed on March 5 and April 11,
1968, by Samuel M. Stoddard, an individual,
against Local Union No. 444, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO (herein called Local 444 or
the Respondent), the General Counsel of the
National Labor Relations Board, on behalf of the
Board, by the Regional Director for Region 13, on
April 26, 1968, issued a complaint and notice of
hearing naming Local 444 as the Respondent.' The
complaint in substance alleged that on or about
March 4, 1968, the Respondent attempted to cause,
and did cause, Gust K. Newberg Construction
Company (herein called Newberg or the Employer)
to discharge its employee Samuel M. Stoddard, the
Charging Party, for reasons other than his failure to
pay union dues, and that the Respondent thereby
violated Section 8(b)(1)(A) and 8(b)(2) of the
National Labor Relations Act, as amended. The
complaint also alleged that on or about March 1,
1968,2 the Respondent Local 444 violated Section
8(b)(1)(A) of the Act by threatening to cause
Stoddard's discharge if Stoddard did not refrain
from protesting and opposing the Respondent's
overtime preference plan The Respondent by its
answer admitted certain jurisdictional allegations
but denied that it had committed or attempted to
commit the unfair labor practices alleged in the
complaint. Thereafter, on June 12, a hearing was
held before Trial Examiner Lloyd Buchanan in
Chicago, Illinois . The General Counsel and the
Respondent Local 444 were represented by counsel
and the Charging Party, Samuel M. Stoddard, was
present The parties were afforded full opportunity
to be heard; to present evidence relevant to the
issues; to call, examine, and cross-examine
witnesses; to present oral argument, and to file
briefs. Briefs to the Trial Examiner were filed by the
General Counsel and the Respondent.
On September 17, the Trial Examiner issued his
Decision in the instant proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
'Copies of the charges and the complaint were duly served on all the
parties
'Unless otherwise indicated , all dates are in 1968
of the Act. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
brief in support of such exceptions The General
Counsel filed a reply brief to the Respondent's
exceptions and brief. In addition, the Respondent
filed a motion, and the General Counsel filed an
opposition thereto, which is discussed at fn. 13,
below.
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 briefs, and
the entire record in the case Although it is in
substantial agreement with the Trial Examiner's
ultimate findings, conclusions, and
recommendations, the Board,is not satisfied with the
presentation of the case in the Trial Examiner's
Decision and therefore makes its own findings,
conclusions, and remedial order, as follows:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Newberg is, and at all times material herein has
been, an Illinois corporation having its principal
office and place of business in Chicago, Illinois. It is
engaged in the business of providing and performing
construction services primarily in the States of
Illinois, Florida, and California.3
The parties stipulated, and we find, that during
the calendar year 1967, Newberg received gross
revenues from its said business operations in excess
of $50,000, of which more than $50,000 was derived
from services performed in states other than the
State of Illinois. Accordingly, we find that Gust K.
Newberg Construction Company is, and at all times
material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 444, International Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.'
'The foregoing facts are alleged in the complaint an,l admitted in the
Respondent ' s answer
?he Respondent so admits in its answer
174 NLRB No. 164
GUST K. NEWBERG CONSTR. CO. 1109
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
According to the credited, as well as the undenied
testimony, the facts are as follows:
The events herein occurred at Newberg's
construction project located at the Commonwealth
Edison Company's Dresden Nuclear Station in
Morris, Illinois (herein called the Dresden job). On
December 13, 1967, Samuel M Stoddard, a
member of a sister local of the Respondent, was
hired by Newberg as a "permit man"5 and was
assigned to the rod setting gang at the Employer's
Dresden project, where he worked continuously until
his termination on March 4, 1968, as described
below. The work at this location is governed by a
collective-bargaining agreement between the
Respondent Local 444 and the Will County
Contractors Association" which provides, in
pertinent part, as follows.
It shall be the duty of the chief steward to see
that all overtime is equally distributed among
members of this Local
The Respondent's financial secretary and business
agent, Edward J. Arambasich, and its chief steward
at the Dresden job, Andrew Wicevic, each testified
that the overtime preference provision of the
contract represents a long established and strictly
enforced policy of Local 444 which the employer
must live up to and which Newberg has consistently
followed. The men on the rod setting gang,
including Stoddard, regularly worked overtime on
Saturdays at double pay And, until the events
herein, Stoddard was never denied overtime work
because of his lack of membership in Local 444.
On Friday morning, March 1, job steward
Wicevic asked Stoddard if he had heard anything
about working the next day. When Stoddard replied
in the negative, Wicevic said "Well, if they do [work
overtime this Saturday] I'm going to have to bump
you out of town guys."7 This ended the conversation
and Stoddard walked away. Later, at about 3 or
3.30 that afternoon, Skoryi, foreman of the rod
setting gang, approached Stoddard on the job and
said, "I'm sorry, Sam, you can't work tomorrow "
When asked "why," Skoryi explained that "All the
Local people are going to work tomorrow, and . .
[y]ou guys, out-of-town guys can't work." Stoddard
thereupon told Skoryi that "I paid $350, $400 a
year to work and I'm going to the National Labor
Relations Board Monday morning if I don't work
'Before entering Newberg ' s employ, Stoddard applied for work at the
Respondent ' s hiring hall which is managed by Edward J Arambasich,
Local 444 ' s financial secretary and business agent Upon establishing that
Stoddard ' s membership in the sister local was up-to-date, Arambasich
issued him a work permit, and referred him to the Dresden job
'Although it is not clear from the record whether Newberg is a member
of the Association and, hence , a party to the contract , the Respondent's
business agent acknowledged that Newberg must and , in fact , does adhere
to this agreement at the Dresden site
tomorrow." Stoddard's testimony was substantially
corroborated by Skoryi. In addition, the latter
testified that, when he told Stoddard that he
(Stoddard) could not work the next day, Stoddard
protested that "he pays the same amount of money
in dues, that nobody was going to bump him, and
that he'd see a lawyer or something " Skoryi also
testified that he subsequently relayed this
conversation to superintendent Jack Wolfe, telling
Wolfe ". . what Mr. Stoddard had in mind, that he
was going to see a lawyer or somebody in Chicago."'
Respondent's job steward, Wicevic, testified that
after the Employer had notified some nonmember
employees earlier on March 1 that they would not
work on the following day, it reversed this decision
later in the day because, according to Wicevic, some
member-employees declined to work that Saturday
and, hence, enough overtime work became available
for all employees who wanted it -- members and
nonmembers alike Thus, Stoddard also worked on
Saturday, March 2.
On the following Monday, March 4, the
Respondent's president, Frank Matichak,
approached Stoddard on the job and said "Sam, I
hear that you was [sic] going to the National Labor
Relations Board if you didn't work Saturday."
Stoddard acknowledged this, explaining, however,
that since he worked he was not going to go.
Matichak nevertheless told Stoddard to ". call up
Tarpy' because he', very mad about it."10 Later that
day Wicevic came to the trailer where Stoddard was
eating lunch and asked to see Stoddard outside.
When Stoddard stepped outside, Wicevic said
"Tarpy told me to tell you that these local people
are going to work this overtime." Stoddard
protested, asserting, "If any crew works, I expect to
work and I'm going to work because I have a book
that's good nationally." Wicevic thereupon
announced that ". . Tarpy told me to tell you if
you didn't like it he will get your time for you."
Stoddard, who admittedly was angry then, replied,
"Well, if that's the way Tarpy feels you tell him to
get my time, . . . these local people are not taking
my overtime away from me." This, according to
Stoddard's credited testimony, ended the
conversation and Stoddard walked away. Later that
afternoon, shortly before quitting time,
superintendent Wolfe approached Stoddard on the
job and told him, "Your time has been made out for
'The Trial Examiner credited Stoddard 's testimony , finding , however,
that although "Wicevic's threat would constitute a violation [of Section
8(b)(1)(A) of the Act] I do not find it because it was neither alleged
nor litigated " While the Trial Examiner , in our opinion , takes an overly
narrow view of the allegations in the complaint, we adopt his ruling, pro
forma , in the absence of exceptions thereto We are not precluded,
however , from considering this conversation as background evidence to the
extent that it tends to explain or shed light upon subsequent events
'Skoryi's statements to Stoddard and Wolfe were admitted as
background evidence only , as we have considered them in that light
"'Tarpy" is a nickname referring to business agent Arambasich
,"The foregoing is based on Stoddard' s undenied testimony Matichak
did not testify
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4:30." When Stoddard asked for a reason, Wolfe
explained, "Andy [Wicevic] came out right after
dinner and told me to make your time out." No
further explanation was advanced and Wolfe did not
testify. The Respondent contends that Stoddard
voluntarily quit on March 4, when he told Wicevic
outside the trailer to "go and get my money.""
B Conclusion
It is clear from the record as a whole, and we
find, that the Respondent has for many years
pursued a policy and practice which requires the
employer to discriminate between employees in the
assignment of overtime work on the basis of their
membership or lack of membership in Local 444.' 2
Such discrimination, when practiced by an
employer, violates Section 8(a)(3) of the Act; and,
when, as here, the discriminatory practice is
instigated and compelled by a labor organization, it
violates Section 8(b)(2) of the Act. Accordingly, we
find that the Respondent, by maintaining and
implementing the preferential overtime plan, as
above described, in its collective-bargaining
agreement," violated Section 8(b)(1)(A) and (2) of
the Act. We also find that the Respondent violated
Section 8(b)(1)(A) of the Act by Wicevic's remarks
to Stoddard on March 4, which threatened Stoddard
that, if he did not refrain from protesting and
opposing the Respondent's overtime plan,
Arambasich "will get your time for you."14
"Wicevic testified that he " told Sam there was a possibility that he
may be knocked off on a Saturday " in the future, that Stoddard, in a fit of
anger, replied " if this is the policy in this local get my check for
me, that he was dragging up" (to "drag up" means to quit) Wicevic
testified that when he tried to calm Stoddard (by assuring him that "there
was no reason to feel that way, this is a policy of all the locals throughout
the country "), Stoddard again protested the discriminatory overtime
practice telling Wicevic that he would not condone it and that Wicevic
should "go and get my money" Finally, when Stoddard told him for the
third time to get his check , Wicevic asked superintendent Wolfe to prepare
Stoddard ' s check , explaining that Stoddard decided to quit and wanted to
be paid at the end of the day The Trial Examiner discredited Wicevic's
testimony and credited Stoddard ' s version of the events leading to his
termination
"The Respondent contends that the legality of its overtime preference
plan is not in issue since neither the contract provision relating to
overtime , nor its implementation by practice , was alleged in the complaint
or litigated at the hearing We disagree. Although the contract provision
was not specifically alleged , the complaint (alleging that Local 444
attempted to cause and caused the Employer to discharge Stoddard "
because of said employee ' s voiced opposition to Respondent 's overtime
preference plan, particularly as the overtime plan applied to him ") is
sufficiently broad, in our opinion, to place in issue both the legality of the
overtime plan and its implementation These issues, particularly as they
related to Stoddard ' s discharge , were fully litigated at the hearing
Contrary to the Respondent ' s further contention, the fact that Stoddard
was never actually denied overtime work does not negate the existence of a
discriminatory practice For, the job steward , Wicevic, explained that
Stoddard regularly worked overtime only because there was enough such
work available for members and nonmembers alike, or, as on March 2,
because such work became available after member -employees , exercising
their prior options, declined the Saturday work
"By motion , which the General Counsel opposed, the Respondent
requested leave to place in evidence a revised overtime preference clause
which the Respondent claims was executed by the parties to the contract
after the close of the hearing The Respondent contends that the new
It is clear from the record, and we find, that
Stoddard did not quit his employment, as contended
by the Respondent. Rather, we find that Stoddard
was discharged, at the Respondent's behest, because
he openly protested and opposed the Respondent's
overtime plan, particularly as it affected him.
Initially, we find that Stoddard's statement to
Wicevic on March 4 (". . . if that's the way Tarpy
feels you tell him to get my time"), when viewed, as
it must be, in the full context in which it was
uttered, neither constitutes a voluntary quit nor
establishes an intent so to quit. To the contrary,
Stoddard's remarks, in the circumstances herein,
reflect his strong continuing opposition to the
Respondent's overtime plan which, when applied to
him -- a nonmember of Local 444 - sought to
deny him equal treatment with employee-members
of Local 444 in the assignment of overtime work.
Nor would a contrary conclusion be warranted
under these circumstances from Wicevic's testimony
as to what Stoddard said on this occasion.15
Although there is no direct evidence that either
Arambasich or Wicevic expressly asked for
Stoddard's dismissal, we find that the Respondent
caused Stoddard to be discharged because of his
continued opposition to the overtime plan. Our
conclusions are based upon the entire record and,
particularly, upon the following facts, which we find.
(1) Stoddard was engaged in a protected activity
when, on March 1 and March 4, he protested and
opposed the discriminatory overtime plan as it
applied, and was about to be implemented, against
him.
(2) Stoddard's voiced opposition and protests
became known to both the Employer and the
Respondent on March 1.
(3) Stoddard's conduct, including his threat to go
to the National Labor Relations Board, was openly
resented by the Respondent and became a source of
antagonism to Local 444, of which the Employer
was fully aware.
(4) Wicevic threatened Stoddard with discharge
on March 4 if he did not stop his protests.
(5) Soon after he threatened such action, Wicevic
told Wolfe to prepare Stoddard's termination pay,
clause complies with the permissive provisions of Section 8(f)(4) of the Act
and that, therefore, any question bearing on the legality of the prior
overtime provision is moot and the need for remedial action also is
obviated We find no merit in this contention and hereby deny the
Respondent's motion It is well settled that the mere discontinuance of
unfair labor practices does not dissipate their effect, nor does it obviate the
need for a remedial order Retail Clerks International Association,
AFL-CIO, etc (J W Mays, Inc ). 145 NLRB 1091, footnote 13 at 1095,
Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and
Restaurant Employees Union AFL-CIO, etc (Stork Restaurant, Inc ), 135
NLRB 1173, 1174 The revised overtime preference provision is irrelevant
to the issue at hand, and therefore, we neither pass upon nor consider
whether it conforms with the requirements of Section 8(fX4) of the Act
"Although this incident was not alleged as a separate violation of
Section 8(b)(1)(A), it is similar to conduct so alleged in the complaint
Wicevic's remarks on this occasion were fully litigated at the hearing and
the Trial Examiner credited Stoddard's testimony with respect to what was
said
"See In 11, supra
GUST K. NEWBERG CONSTR. CO.
which Wolfe did, and so advised Stoddard.
(6) Stoddard was terminated on March 4 without
prior warning or explanation by the Employer, the
only reason advanced by the Employer for giving
Stoddard his termination pay on March 4 being
Wolfe's explanation that he acted on Wicevic's
instruction.
(7) In giving Stoddard his termination pay on
March 4, as requested by Wicevic, rather than at
the next regular payday, the Employer acted
contrary to its normal practice and the contract
provision with respect to paying employees who
quit On the contrary, such immediate payment was
in fact in accord with the contract and the
Employer's practice with respect to employees who
are discharged.
Accordingly, we find that, when Wicevic
instructed Wolfe to prepare Stoddard's termination
pay, regardless of any accompanying explanation by
Wicevic, the Respondent unlawfully attempted to
cause the Employer to discharge Stoddard for
engaging in activities protected by the Act; and,
when Wolfe acquiesced in the unlawful demand by
giving Stoddard his termination pay, the
Respondent, in fact, caused the Employer to
discharge Stoddard in violation of Section 8(a)(3) of
the Act. By the foregoing conduct, the Respondent
violated Section 8(b)(1)(A) and 8(b)(2) of the Act.16
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning 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.
Upon the foregoing findings of fact and upon the
entire record in this case, the Board makes the
following
CONCLUSIONS OF LAW
1. The Respondent , Local Union No. 444,
International Association of Bridge, Structural and
Ornamental Iron Workers , AFL-CIO, is a labor
organization within the meaning of the Act.
2. Gust K. Newberg Construction Company is
engaged in commerce within the meaning of the
Act.
3. By threatening to cause and by causing Gust K.
Newberg Construction Company to discriminate
against Samuel M Stoddard , thereby encouraging
membership in a labor organization , the Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A)
and (2 ) of the Act.
"Malcolm Konner Chevrolet, Inc, etc , 141 NLRB 541, 546, enfd in
pe-t part, 338 F 2d 972 (C A 3), of Teamsters , Chauffeurs,
Warehousemen , Stablemen and Helpers Local 182 (S A Scullen, Jr., et
al, d/b/a S A Scullen Co ), 164 NLRB No 38
4. By maintaining and implementing a
discriminatory overtime preference plan the
Respondent has engaged in and is engaging in a
practice of attempting to cause and causing
discrimination against employees because of their
nonmembership in the Respondent and is engaging
in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting 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,
Local Union No. 444, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Gust K.
Newberg Construction Company, or any other
employer over whom the Board would assert
jurisdiction, to discharge or deny employment to
Samuel M. Stoddard, or any other employee,
because such employee protests and opposes its
discriminatory overtime preference plan.
(b) Threatening Samuel M. Stoddard, or any
other employee, with economic or other reprisal for
protesting its discriminatory overtime preference
plan.
(c) Maintaining, enforcing, or otherwise giving
effect to any policy, plan, or arrangement with Gust
K. Newberg Contruction Company, or any other
employer over whom the Board would assert
jurisdiction, pursuant to which Local 444 members
are given preferential treatment with respect to
assignments of overtime work or other terms and
conditions of employment over nonmembers of
Local 444.
(d) In any other manner restraining or coercing
employees of Gust K. Newberg Construction
Company or any other employer over whom the
Board would assert jurisdiction in the exercise of
their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Make Samuel M. Stoddard whole for any loss
of earnings he may have suffered by reason of its
discrimination against him, plus interest, to be
computed in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify Gust K Newberg Construction
Company, in writing, that it has no objection to the
employment of Samuel M Stoddard and that it will
not seek preference for its members in regard to
overtime work; and send a copy of such notice to
Stoddard.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all records, reports, worklists, and other
documents necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post in conspicuous places in its business
offices, meeting halls, and places where notices to its
members are customarily posted, copies of the
attached notice marked "Appendix."" Copies of
said notice on forms provided by the Regional
Director for Region 13, shall be posted by the
Respondent, after being duly signed by its
representative, immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said Notices are not
altered, defaced, or covered by any other material.
(e) Send signed copies of the attached notice to
Gust K Newberg Construction Company for
posting, if it is willing, at its business office, the
Dresden jobsite, and other construction projects
which are located within the geographic area of
Respondent's jurisdiction.
(f) Notify the Regional Director for Region 13, in
writing, within 10 days from the receipt of this
Decision and Order, what steps have been taken to
comply herewith.
policies of the National Labor Relations Act, as amended,
we hereby notify you that
WE WILL NOT cause or attempt to cause Gust K
Newberg Construction Company, or any other
employer, to discharge or deny employment to any
employee because he protests our preferential overtime
plan
WE WILL NOT threaten employees with discharge or
other reprisals if they protest our overtime preference
plan
WE WILL NOT maintain or enforce any plan which
requires that overtime preference be given to members
of this Local
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed in
Section 7 of the Act
WE WILL reimburse Samuel M Stoddard for any
loss of earnings suffered by him because of the
discrimination against him found by the National
Labor Relations Board
WE WILL notify Gust K. Newberg Construction
Company, in writing, that we have no objection to their
employment of Samuel M Stoddard, and that we will
not seek preference for our members with respect to
overtime work; and, we will send a copy of such notice
to Samuel M. Stoddard
LOCAL UNION No 444,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, AFL-CIO
(Labor Organization)
"In the event this Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
APPENDIX
NOTICE To ALL MEMBERS AND NONMEMBERS OF LOCAL
UNION No 444, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON
WORKERS, AFL-CIO, EMPLOYED BY GUST K
NEWBERG CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced, or covered by any other material
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board's Regional Office, 881 U. S
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago , Illinois 60604 , Telephone
3 12-35 3-7572