H. E. Wiese, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1968

169 N.L.R.B. 1042 (N.L.R.B. 1968)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. E. Wiese , Inc. and Joseph A. Clebert, an In-
dividual. Case 15-CA-3052-5
February 23, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 30, 1967, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, finding that 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, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 Respondent's ex-
ceptions and the entire record in the case, and
hereby adopts the findings,' conclusions, and
recommendations2 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, H. E. Wiese, Inc., Baton
Rouge, Louisiana, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
1. Add the following as paragraph 2(b), the
present paragraph 2(b) and those subsequent
thereto being consecutively relettered:
"(b) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces."
2. Add the following immediately above the line
at the bottom of the Appendix attached to the Trial
Examiner's Decision:
Note: We will notify Joseph A. Clebert if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
169 NLRB No. 145
Service Act, as amended, after discharge from the
Armed Forces.
3. Delete from the last line of the first paragraph
of the Appendix attached to the Trial Examiner's
Decision the words "or activity" and insert the
word "activity" after the word "concerted."
' The Trial Examiner found that Clebert was discharged by the Re-
spondent for protected union activity in that he carried out his duties as a
union steward energetically under the contract grievance procedure and
was not amenable to Respondent's desire for changes in the contract The
Trial Examiner also found that he made no threats of work stoppages, and
did not, as contended, refuse work assigned to him The 8(a)(3) violation
found as to Clebert is amply supported by the record. It is thus unneces-
sary to find additionally, as the Trial Examiner did, that the discharge
notice itself was a "written admission" that Clebert was being discharged
for engaging in protected union activities, or that, because of an evident
predetermination on the part of Respondent to discharge Clebert, the
discharge would necessarily have been a pretext had Clebert actually
refused work assignments. We note also that shortly before the discharge
Respondent advised a union representative that something had to be done
about removing Clebert from the job because "he was disturbing the
image the contract was designed to create."
2 We add to the Trial Examiner's recommended remedy our customary
provision: Interest on backpay shall be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge
duly filed on April 7, 1967, by Joseph A. Clebert, an in-
dividual, the General Counsel of the National Labor
Relations Board, hereinafter referred to as the General
Counsel' and the Board, respectively, by the Regional
Director for Region 15, New Orleans, Louisiana, issued
its complaint dated May 26, 1967, against H. E. Wiese,
Inc., hereinafter referred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the Labor Management Relations Act,
1947, as amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain al-
legations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held in Baton
Rouge, Louisiana, on July 18 and 20, 1967, before Trial
Examiner Thomas S. Wilson. All parties appeared at the
hearing, were represented by counsel, and were afforded
full opportunity to be heard, to produce, examine and
cross-examine witnesses, and to introduce evidence
material and pertinent to the issues. At the conclusion of
the hearing, oral argument was waived. Briefs were
received from General Counsel and Respondent on Au-
gust 25, 1967.
Upon the entire record in the case and from my obser-
vation of witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
H. E. Wiese, Inc., a corporation doing business in the
'This term specifically includes the attorneys appearing for the
General Counsel at the hearing
H. E. WIESE, INC.
State of Louisiana, is, and has been at all times material
herein, engaged in the business of performing services
consisting of plumbing, pipefitting, and steamfitting for
The Dow Chemical Company at a plantsite located in
Plaquemine, Louisiana. Respondent's office and place of
business is located at Baton Rouge, Louisiana. During
the past 12 months, which period is representative of all
times material herein, Respondent received revenues in
excess of $50,000 for services performed as described
above for The Dow Chemical Company, a corporation
which annually ships goods valued in excess of $50,000
from its plant in Louisiana to points outside the State of
Louisiana.
As these jurisdictional facts are admitted in Respond-
ent's answer, 1, accordingly, find that at all times materi-
al herein Respondent was and is an employer engaged in
commerce within the meaning of the Act.
II. THE CHARGING PARTY
Joseph A. Clebert is, and has been at all times material
herein, an individual employed by Respondent at The
Dow Chemical Company project at Plaquemine, Loui-
siana, and at all times material herein was the union
steward for Steamfitters and Plumbers Local Union No.
198,2 herein called the Union, at this project.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
About 10 a.m. on March 14, 1967, Edward W. Nitz,
superintendent of maintenance for Respondent and super-
visor 3 in two blocks, handed Respondent craftman em-
ployee and shop steward for the Pipefitters Union,
Joseph A. Clebert, his final paycheck and a discharge
notice reading in regards to the reasons for his discharge
as follows:
Reason of Disch: Repetative [sic] misinterpretation
of Maint. agreement, continuing threats of work
stoppage, refusal of assignments , constant agitation
keeping job in a turmoil.
In the light of this written admission by Respondent
that Clebert was being discharged for engaging in pro-
tected and concerted union activities, I must, and hereby
do, find that Respondent discharged Clebert because of
his union activities as such union steward in violation of
Section 8(a)(3) and (1) of the Act.
B. Respondent's Argument and Further Facts
However, despite this written admission, Respondent
in its brief argues:
The General Counsel in this case proved only that
Joseph A. Clebert was discharged . However, there
was no proof by the General Counsel that Mr.
Clebert was discharged for any discriminatory
reasons.
2 Also referred to as Pipefitters.
3 In the terminology used by Respondent in this case, a "supervisor" is
admittedly a supervisor within the meaning of the Act whereas a
1043
Further Respondent claims that the discharge "was fully
justified" by reason of Clebert's alleged:
A. Repetitive misinterpretation of the maintenance
agreement.
B. Continuous threats of work stoppages.
C. Refusal of assignments.
D. Constant agitation, keeping the job in turmoil.
But the facts relied upon by Respondent to sustain the
above alleged charges serve only to corroborate Respond-
ent's written admission, set forth above in the discharge
notice, and to emphasize the fact that in each instance re-
lied on Clebert was engaged in protected union activities
as the Union's shop steward handling grievances. In addi-
tion the oral evidence presented by Respondent's labor
relations and personnel manager, J. L. Golsan, at the
hearing shows conclusively that Golsan had determined
to discharge steward Clebert for his militancy as such
union-shop steward some 90 to 120 days before Respond-
ent actually found what it considered to be a "cause" for
discharge, thus proving that the critical events of March
8-14, 1967, were a mere pretext for the discriminatory
discharge.
In doing its maintenance for The Dow Chemical Com-
pany at its Plaquemine , Louisiana, plant, Respondent was
a party to what is here known as the "Maintenance Con-
tract" with some 13 craft unions. In Golsan's words,
"this [Maintenance ] Contract was entered into [some 10
years before] by the contractors and the international
unions to get a foot in on industrial maintenance, which
they never had before." Golsan also maintained at the
hearing that all "interpretations" of the contract had to be
made only by the Committee of General Presidents in
Washington, D.C. Again, according to Golsan, only two
such "interpretations" had been so made during the 10
years of the contract 's existence.
Golsan testified further: "I think we [Respondent] are
extremely proud of our reputation and our ability to get
along in the labor management field.... I think we have
a fair and firm working relationship with all the Unions
we do business with." Despite this testimony Golsan
further testified that on February 18, 1966, he had called
a meeting with one C. M. Gelski, general organizer for
the Pipefitters, "because, to quote an expression, `this job
had been in a turmoil,"' a turmoil which Golsan believed
was caused by Clebert' s actions as union steward.
For the 2 years preceding his discharge, Clebert had
been the Pipefitters steward on the job through selection
by his fellow craftsmen on the job and by appointment of
Al Durbin, business manager for Local 198. For part of
that time Clebert had also been a "foreman." He acted in
both such capacities until Golsan informed Gelski that a
Pipefitter foreman should not be a steward. During the
whole of Clebert's tenure as steward a continuing series
of grievances had arisen at the Dow project over "craft-
crossing" (one craft being ordered to do work within the
jurisdiction of another craft) and over "chain of com-
mand" (a gang of craftsmen working under the leadership
of a craft "foreman" who got his orders from Respond-
ent's supervisor).
This series of grievances continued even through the
"foreman" is a member of the bargaining unit occupying a nonsupervisory
position akin to a craft leadman and receiving a rate of pay higher than that
received by the craftmen working under his leadership.
350-212 0-70-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
last week of Clebert's employment with Respondent.
On or about March 7-8, 1967, Clebert, having heard a
report from an unidentified source that on the following
Monday Respondent planned to eliminate foremen from
one block, inquired of Supervisor Nitz during working
hours if "any changes" in operations were impending,
requesting that Nitz not lie to him. According to Nitz'
answer, he knew of no such impending changes in prac-
tice. Clebert then reminded Nitz that, when Respondent
had tried to eliminate foremen from the C.B.E. block the
year before, "the fellows went to the gate" and that, if the
same thing happened again , the fault would be on Nitz'
back and not on Clebert's.
That evening, however, Nitz telephoned to Clebert
telling Clebert that there was a "leak" of information
among Respondent's supervisory staff and asking Clebert
to name the source of his information that a change was
impending. Clebert refused to become an informer.
Clebert had taken the precaution to consult Business
Manager Durbin over this threat to remove the foremen
and was instructed that Pipefitters were to take orders
only from foremen.
On Thursday or Friday of that week Nitz dispatched a
gang of four pipefitters to a job outside the plant. When
craftsman employee Calcagno, who had been acting as
Pipefitter foreman, inquired if he was to be foreman on
this job, Nitz answered that they would work without a
foreman. The employees complained and called steward
Clebert over this grievance. Clebert promptly called Dur-
bin by telephone and was told that at that very time Gel-
ski was in a meeting over the foremen problem and they
should have an answer soon so that Clebert should in-
struct the employees to proceed to work without a
foreman until the matter was determined. The job was
performed without a foreman and without a stoppage.4
The following day, March 8, Pipefitter employee
Adams called his steward, Clebert, and informed Clebert
that Nitz had assigned him and Creason Alford, Pipefitter
foreman, to remove an inspection cover off of a vessel.
This was work within the Boilermaker jurisdiction, as
Nitz well knew at the time of making the assignment.
When the employees complained about "craft-crossing,"
Nitz stated that, "it was his prerogative to put who he
wanted on it (the job) and he was going to use it." Upon
speaking to Durbin by telephone, Clebert was instructed
by Durbin that the Pipefitters "just wasn't going to do any
other people's work" unless it was an emergency. Clebert
instructed the Pipefitters to do this job but that thereafter
they were not going to do any other people's work. The
assigned work was done the following morning so that
this job was no emergency.
About 7:30 a.m. on March 14 Clebert was assigned a
job of bending some aluminum pipe. As this was un-
familiar work for Clebert, he asked his foreman, O'Brien,
to have Nitz have the necessary machinery delivered
from the toolroom so that he could seek enlightenment on
how to perform such work from an electrician who had
experience with it.
There were two ways to get machinery from the tool-
This record fails to disclose what decision, if any, was made on this
chain of command grievance at the meeting.
5 At the hearing Nitz testified that he was so informed by Pipefitter
Foreman O'Brien, testimony which O'Brien categorically denied. If
material to a decision in this case , which it is not, I would have to credit
O'Brien 's denial.
8 From Golsan's testimony it is apparent that he assisted in its prepara-
tion because he testified that it was prepared in such detailed form for
room located some six blocks away. The craftsman could
drive over and pick up the machinery himself or he could
telephone the toolroom for the machinery and ask them
to "hot shot" it to him; i.e., bring it to the site on the tool-
room truck. Either method was acceptable. This time the
bending machinery was hotshotted.
Apparently after ordering the machinery "hot shotted"
to Clebert, Nitz visited Golsan with a report that Clebert
had refused an assignment.5 According to Golsan, he
then ordered that Clebert be discharged. Nitz secured the
final paycheck for Clebert and prepared the above-quoted
dismissal order.6 Clebert had some trouble with the bend-
ing equipment. While still involved with that, he was
called by Boilermaker steward, Laird, to assist in settling
"a little grievance" in the Poly A block, some 600 yards
away. With Foreman O'Brien's permission Clebert went
to Poly A and helped get that grievance settled quickly.
By 10 o'clock Clebert was back bending pipe when
Nitz came up and ordered him to follow him to his truck
where Nitz informed Clebert that the Poly A grievance
was settled but that "I'm going to have to let you go" and
gave him his final check with the discharge notice.
It is this undisputed testimony 7 that Respondent
relies on as proof that Clebert was discharged, as it
claims, for "cause." However these facts prove only that:
(1) Clebert performed his duties as union steward
energetically.
(2) Clebert entered upon the discussion of these
grievances when called upon by others, including Nitz, as
union steward.
(3) Clebert's so-called "persistent misinterpretation"
of the contract occurred only on those occasions when
Respondent sought to change past practices under the
contract while Clebert insisted upon the continuation of
the previous practices thereunder. This hardly qualifies
as "persistent misinterpretations of the contract," par-
ticularly when it was Respondent who was insisting upon
the new "interpretation" of the old contract.
(4) Respondent's real reason for discharging Clebert
on March 14, 1967, was his activities as such union
steward, a protected union activity8 provided for in the
grievance procedure of the contract. Apparently Re-
spondent desired a steward more amenable to Respond-
ent's desire for changes in the contract than was Clebert.
Respondent's charge that Clebert continuously made
threats of work stoppage is unproved. The proof here in-
dicates only that, upon unofficially learning of Respond-
ent's plan to eliminate foremen, Clebert cited the fact to
Nitz that the last time Respondent had tried to eliminate
foremen "the men walked to the gate." The citation was
an historical fact, not a threat.
Equally unproved is Respondent's charge that Clebert
engaged in "constant agitation, keeping the job in a tur-
moil." The proof here shows that in each of the episodes
noted here, Clebert was called into the grievance by
others in his official union capacity as Pipefitter steward.
This hardly qualifies as "agitation." It was, however, his
duty as such steward and a protected union activity.
presentation to the Committee of General Presidents in Washington,
D.C., and not apparently for presentation to the National Labor Relations
Board.
' Nitz agreed that, with two unimportant exceptions, Clebert's
testimony had been true and accurate.
8See Interboro Contractors, Inc., 157 NLRB 1295. 1 cite this case
solely for the proposition of law there stated by the Board and not because
I think the cases are factually similar.
H. E. WIESE , INC. 1045
Respondent's final charge is that Clebert refused as-
signments on two occasions. The first alleged refusal oc-
curred on January 22, 1967, when Clebert was "called
out" for work on his day off. The facts of that incident
show that Clebert accepted the "call out" admittedly
reluctantly as he had made other plans for his day off but
he did work some 3 hours on that first "call out." While
still on that "call out," Clebert received a second "call
out" by another supervisor for work elsewhere.
Originally Clebert refused this second call out partly, at
least, because he was told that, contrary to past practice,
he would be paid only for the first call out as he had not
worked a full 8 hours on the original call out. This was
another attempted change of past practices by Respond-
ent which previously had paid 8 hours' pay for each call
out. However, the undenied facts also disclose that
Clebert actually responded to the second call out, only to
find the work had been completed while he was still work-
ing on his first call out. The second alleged "refusal" oc-
curred on March 14, 1967, when Nitz claims that
Foreman O'Brien told Nitz that Clebert had refused to go
to the toolroom to pick up the pipe bending machine,
testimony which O'Brien categorically denied both as to
the refusal and as to his alleged reporting of such fact to
Nitz.
Under all the circumstances I find no refusal by
Clebert but, even assuming that there had been a refusal,
it could have played no part in this discharge because
Golsan testified that he had threatened to discharge
Clebert some 90-100 days previously so that any such
refusal must have been a mere pretext.
C. Conclusions
Under all the facts of this case I can only reiterate that
I must, and hereby do, find that Respondent discharged
Clebert on March 14, 1967, because of his protected
union activities as union steward in violation of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Joseph A.
Clebert by discharging him on March 14, 1967, because
he engaged in protected union activities as the union
steward, I will recommend that Respondent offer to
Joseph A. Clebert immediate and full reinstatement to his
former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges and
make him whole for any loss of pay he may have suffered
by reason of said discrimination against him by payment
to him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination
to the date of his reinstatement, less his net earnings dur-
ing such period, in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289, with in-
terest thereon at 6 percent per annum. In addition, I will
recommend that Respondent notify Clebert's Union that,
if Clebert be reappointed as that Union's steward,
Respondent will deal with him as such union steward.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of Joseph A. Clebert by discharging him on
March 14, 1967, because of his legitimate activities as
union steward, thereby discriminating against him
because of his protected concerted and union activities
and thus discouraging union membership and activities
among its employees, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that H. E. Wiese, Inc., Baton Rouge,
Louisiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from discouraging concerted and
union activity and membership by discriminating in re-
gard to the hire and tenure of employment of any of its
employees, especially a union-shop steward, or by dis-
criminating in any other manner in regard to any term or
condition of their employment, in order to discourage
such activities or union membership or activities therein.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to Joseph A. Clebert immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Nofity Plumbers and Steamfitters Local Union
No. 198 that, if reappointed as that Union's shop
steward, Respondent will deal with Clebert as such union
official.
(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 Recommended Order.
(d) Post at Respondent's plant, copies of the attached-
notice marked "Appendix."9 Copies of said notice, on
9 In the event that this Recommended Order is adopted by the Board, Court of Appeals, the words "a Decree of the United States Court of Ap-
the words "a Decision and Order" shall be substituted for the words "the peals Enforcing an Order" shall be substituted for the words "a Decision
Recommended Order of a Trial Examiner" in the notice In the further and Order."
event that the Board's Order is enforced by a decree of a United States
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for Region 15,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable 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 15 , in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply with the foregoing
Decision.' 0
1 FURTHER RECOMMEND THAT, unless within 20 days
from the receipt of this Decision Respondent has notified
the said Regional Director that it will comply with the
foregoing recommendations , the Board issue an order
requiring Respondent to take the aforesaid action.
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage concerted or union ac-
tivity or membership in any labor organization of our
employees by discriminating in regard to the hire and
tenure of employment of any of our employees
because of their concerted or union affiliation or ac-
tivity.
WE WILL offer to Joseph A. Clebert immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and will make him
whole for any loss of pay he may have suffered by
reason of the discrimination practiced against him
together with interest thereon at 6 percent per an-
num.
WE WILL notify Steamfitters and Plumbers Local
Union No. 198, that, if reappointed as its shop
steward, we will deal with Joseph A. Clebert as such
union steward.
Dated By
H. E. WIESE, INC.
(Employer)
(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 employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.