Hill Engineering, Inc.

National Labor Relations Board - Board Decisions

May 17, 1968

171 N.L.R.B. 472 (N.L.R.B. 1968)

472 DECISIONS OF NATIONAL
Hill Engineering , Inc. and Woodrow W . Colvard, an
Individual and Mace E . Davidson , an Individual.
Cases 16-CA-3077 and 16-CA-3080
May 17, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 31, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, Charging
Party Mace E. Davidson filed exceptions to the
Trial Examiner's Decision, and the Respondent
filed an answering brief.'
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 exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions 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
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' The Charging Party's request for oral argument is hereby denied, as the
record, exceptions, and brief adequately present the issues and positions of
the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in
the above-entitled proceeding was held before me
at Wilburton, Oklahoma, on November 21, 1967,
on complaint of the General Counsel against Hill
Engineering, Inc., herein called the Respondent or
the Company. The issues are whether the Respon-
LABOR RELATIONS BOARD
dent discriminated against employees Woodrow W.
Colvard and Mace E. Davidson, the Charging
Parties, in violation of Section 8(a)(3) of the Act,
because they had engaged in a strike. Briefs were
filed by the General Counsel and the Respondent at
the close of the hearing.
Upon the entire record and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Hill Engineering, Inc., a Texas corporation, has
its principal place of business in Houston, Texas,
and is engaged in the building and construction
business. In 1967 it undertook a contract for the
Arkansas-Louisiana Gas Company in the vicinity of
Wilburton, Oklahoma. Arkansas-Louisiana Gas
Company gathers gas in the States of Louisiana,
Oklahoma, and Arkansas and distributes it. At the
project in question, the only one involved in this
proceeding, the Respondent's work was "installa-
tion of a short pipeline and two booster compres-
sors for the purpose of raising the pressure of the
gas to be pumped further on the line." The equip-
ment alone which the Respondent installed was
valued in excess of $200,000, and the contract
price to the Respondent was in excess of $147,000.
I find that the Respondent is engaged in commerce
within the meaning of the Act, and that it will effec-
tuate the policies of the Act to exercise jurisdiction
herein.'
II, THE LABOR ORGANIZATION INVOLVED
On the record evidence I find that Local Union
No. 351 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Wilburton project was started early in June
with the Respondent hiring approximately 50 em-
ployees, of different crafts, but for the most part
plumbers and pipefitters, all either from the town of
Wilburton itself, or from nearby areas. The only
employees coming from distant places were super-
visory persons; Thomas was then superintendent in
charge. Some of the employees were members of
Local 29, also subordinate to the United Associa-
tion of Plumbers and Pipefitters, but with its area of
I At the heanng the Respondent disputed the Board ' s jurisdiction, but in
his brief counsel for the Respondent states "Although we raised jurisdic-
tional issues in the pleadings, I am satisfied that the evidence submitted
bring this case within the Board's jurisdictional guidelines and do not
propose to argue that issue further at this time, but without waiving the
point "
171 NLRB No. 75
HILL ENGINEERING. INC. 473
operations in Fort Smith, Arkansas. There
developed a move towards organizing all of the em-
ployees into a new Local 351 of the same Interna-
tional . On July 8 this Union called a strike and all
the employees quit ; they also virtually picketed the
project regularly thereafter. A State court injunc-
tion against picketing issued early on Monday
Morning, July 17, and all picketing ceased at 10
a.m. that day. Work resumed on Tuesday, July 18,
with 28 rank-and-file employees working. This
complement went to 39 on Wednesday, 41
Thursday, 42 Friday, and 43 Saturday. It does not
appear that any additional workmen were hired
thereafter, throughout the period until the project
was completed in October.
In the evening of July 17, Mace Davidson, a
pipefitter who had been hired on the project on
June 12 and then struck, asked the new job su-
perintendent, Glenn Roberds, whether he had a job
or not. He was not rehired. The next day Woodrow
Colvard, who had worked from June 17 to the day
of the strike as a tack welder, appeared at the
jobsite with two other employees-Donald Green
and Robert Baldwin . He indicated an interest in
returning to work; Green and Baldwin were put to
work, but not Colvard.
Conceding that Davidson and Colvard were
economic strikers, the complaint alleges each of
them was refused employment in retaliation for his
strike or picketing activities. The defense rests
upon the assertion that the reason why these two
men, as well as other strikers whether or not they
requested reinstatement, were not used thereafter,
is because the Company had hired, before the Mon-
day evening of July 17, a group of diversified plum-
bers and pipefitters, and other craftsmen, for the
express purpose of resuming and completing the
project regardless of the Union's determination to
interfere. With the total number of employees
needed no greater than before the strike, and with a
substantial number of replacements already hired
before the picketing ceased, it follows, according to
the Respondent, that a number of earlier employees
had to lose their jobs in consequence. The argu-
ment is simply that Davidson and Colvard were
among the 10 or so of the strikers who were not
needed and therefore not used again. Although no
formal announcement seems to have been made, it
does appear that the Union abandoned the strike,
for all picketing ceased and by Tuesday a substan-
tial number of strikers-perhaps 20-were back at
work; about 13 more started the next day.
The Respondent's Plan To Break the Strike
With the job at a standstill for a week, on Friday,
July 14, the Company held a meeting in its Houston
office, with the lawyer, Mr. Brown, its general
manager, Mr. Hill, and Glenn Roberds, one of its
regular construction superintendents, present.
Roberds was at that time in charge of another pro-
ject of the Respondent for Sinclair in Houston. It
was decided to replace Thomas, the old superinten-
dent at Wilburton, with Roberds, and have the
latter go there and start work. With this order in
hand, Roberds then communicated with a number
of employees, some of whom had worked directly
for him but all of whose abilities he knew from per-
sonal knowledge. He hired them for work at Wil-
burton, and instructed them to travel the 450 miles
from Houston to Wilburton and to be there by
Monday; they came by car, some Sunday and some
Monday. Roberds himself arrived Sunday; he had
never before been near the Wilburton project and
knew nothing about the situation in terms of how
many employees would be available there and
willing to work, the comparative skills of old em-
ployees, or how his new men could be coordinated
with available local labor, or in place of strikers.
Wilburton is a very small town, and with all those
Texas automobile license plates in evidence at the
sole motel where the men, as well as Roberds,
checked in, no doubt word spread quickly that Hill
Engineering was planning to resume operations
with at least part of its employees out-of-town
strikebreakers. This must be the explanation of
why, although neither party to the labor dispute
had announced any change of position, Davidson
appeared at the motel Monday afternoon to inquire
whether there was going to be work for him or not.
It is against this situation, which is not disputed by
the General Counsel, that certain testimony of con-
versations between Davidson and Roberds that
evening must be appraised.
Testimony by Davidson
Davidson testified that in Roberds' motel room
on the evening of July 17 the new superintendent
asked "what happened out there on the job," and
added "there's some things goes on out there that
we don't approve of on our job." Davidson's
answer was "that's over with," and that he was in-
terested only in "if I have a job or not." Still ac-
cording to Davidson, Roberds then asked: "Did you
tell them people out there you was a union man
when you started to work," and when Davidson
said yes, added: "I don't know how you started to
work to start with.... I'd advise you to go some
place else and look for work."
On August 4 an election was held among all em-
ployees on a petition filed by Local Union No. 351;
the Union lost. Davidson was a union observer. He
continued to testify that after the election, on the
same day, as he sat in his car at the jobsite, Roberds
came near him and he, Davidson, asked how the
fabrication was progressing. When the superinten-
dent said "good," Davidson said he was glad,
because he had fabricated some of the material,
and indeed liked to install what he had himself
fabricated. Roberds answered he would have to
hire some instrument men, and asked could David-
son run instruments, could he calibrate? Davidson
said yes, and again Roberds said he would have to
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire somebody. Davidson was never called to work.
Davidson was an oldtime member of Pipefitter
Local 29, and the Company knew he had picketed
this project regularly. He testified Roberds never
told him he had been replaced. He also testified
that on August 4, in his last talk with Roberds, he
did not ask why he had not been restored to work
when the project was resumed, and that Roberds
said nothing as to the reason.'
Testimony of Colvard
Colvard also had long been a member of
Pipefitter Local Union 29, he started on this job on
June 17, but worked only as a tack welder because
he failed the welding test. He too picketed regu-
larly. On Tuesday morning , when Roberds was first
starting to get things reorganized , he appeared at
the jobsite together with Donald Green and Bob
Baldwin. They stood around 15 minutes or so, and
then Colvard spoke to Walter Shiflet, a foreman
who had supervised some of the men directly be-
fore the strike. Colvard asked if he had a job, and
Shiflet answered. "I don't know. I don't know
whether I've got one myself. They just called me
from Houston." Colvard then asked the same
question of Roberds, who answered "he wasn't
doing any hiring at the present time." Shortly,
Green and Baldwin were called into the trailer of-
fice and put to work. After a while Colvard asked
Shiflet for his personal belongings , gathered them,
and left. Colvard also testified that Roberds told
him to "come back when I get things straightened
out; come back on Friday ... come back on Mon-
day; make it Monday."
Colvard was back at the project that Friday, the
21st. He told Roberds he needed work, but the su-
perintendent answered "if everything went well he
would put me back after the election." Again Col-
vard left. He voted in the election on August 4 and
the next day, as he continued to testify, ran into
Roberds in a beer tavern . He testified that he again
asked was he going back to work, and that
Roberds' reply was: ". . . he wasn't going to hire me
back. Then he said that I had betrayed him, had
voted for the Union against Hill Engineering." Col-
vard answered it did not matter, for he felt that
under the law he was on the payroll nonetheless.
Roberds' reply to this was Davidson would "not get
a dime" out of the Company. He brought Colvard a
beer and that was the end of it. Colvard had already
signed , on August 3, an NLRB charge of illegal dis-
crimination against the Company, and on August 8
left town for employment elsewhere.
Testimony by Roberds and the Payroll Records
Roberds' testimony, as indicated above, that he
was told on Friday-July 14-to go to Wilburton to
take charge, and that he hired-before the 16th-
about 11 men from the Houston area to help him
man the project, is undisputed and perfectly credi-
ble There is no question that by Monday there
were that many men from Texas checked in at the
Wilburton motel. Roberds arrived in town on Sun-
day and did not visit the jobsite at all until Tuesday
morning, after the pickets had left the day before.
He did not know Davidson or Colvard, as indeed he
knew none of the men who had worked here, with
the sole exception of those supervisors who had
long been with the Company and came from the
Houston area. The essential burden of Roberds'
testimony is that Davidson and Colvard had been
replaced, that there was no need for them when the
job continued. He conceded candidly he did not
hire particular persons to replace individual work-
men, but just people to do the entire job. "Well,
specifically I didn't know of the situation here so
far as personnel, and I knew I had to have someone
to help me finish the job. We had a contract for a
certain time to do it in We had to do it, and I had
to bring people that would work." In the circum-
stances of the situation which confronted the new
superintendent at that critical time , this explanation
of the replacement concept is entirely persuasive.
He did not know what work still had to be done,
the skill of the various employees, what men he
could use where or when, or which of the striking
employees would choose to return to work. He
testified that when Davidson asked him for work on
Monday evening he had not yet learned enough of
the personnel problems to know whether he could
use the man or not, and therefore "I told him that I
had hired a substantial amount of people to replace
these other people, and that I'd just have to see if I
could use him." As to Colvard, he testified the man
asked for work more than once, but that his answer
was he had hired many people and needed time "to
evaluate the situation." Roberds said he knew
nothing about the personal union activities of these
two men, and he denied flatly having told either of
them the reason they were not taken back was
because of any union activities on their part. He did
recall speaking with Davidson on the day of the
election and inquiring was he an instrument fixer;
when the man said yes, he told him to "check back
with me if he wasn 't working ; that we could
probably use him in the instrument department...."
Davidson then said, according to Roberds, that
` After his unequivocal statement that Roberds said nothing of why he
had not been recalled , Da, idson changed his answer in response to a purely
leading question I find his reversal of testimony unpersuasive
Q Did he say anything about why he had not recalled you to work"
A No, he didn't
Q Did he say anything about how you had approached him to come
hack to work)
A He said that I approached him the wrong way
HILL ENGINEERING , INC. 475
he had a permit to go out of town on another job.
As to Colvard, Roberds testified he spoke to him
the day before the election , when Colvard said he
needed a job badly, and himself volunteered that he
had been forced into union activities , even offering
to show a scar on his person to prove the threat.
Considering both the reasonable probabilities sug-
gested by the overall unquestionable facts, and the
demeanor of the witnesses , I credit Roberds'
testimony that he told Davidson there were replace-
ments, that he explained to each man there were
problems of adjustment between new and old men
yet to be resolved, and that he did not tell either of
them anything indicating their union activities were
the cause of their failure to find work.
The work on the project started again on
Tuesday, July 18, the first day Roberds appeared
there . The payroll records show that 10 men who
worked that day were also paid for 8 hours on
Monday; Roberds explained this was compensation
for having traveled from the Houston area to work
here . He identified 11 persons by name as having
been hired on Saturday, July 15, and gave the craft
classification of each: welders, pipefitters, equip-
ment operator , carpenter , electrician, and
semiskilled labor . The project was completed 2
months later , and there is no evidence any person
was hired , in any category , following the week end-
ing July 22.
ANALYSIS AND CONCLUSION
A striking employee retains his employee status
and is entitled to reinstatement to his job absent
persuasive evidence of permanent replacement.
N.L.R.B. v. Mackay Radio & Telegraph Co., 304
U.S. 333. And the burden of proof of such replace-
ment rests on the employer who refuses to return
such an economic striker to his old position. "The
burden of proving justifications [for refusal to
restore to work ] is on the employer .... Such proof
[that the jobs of complainants had not been ab-
sorbed or that they were still available] is not essen-
tial to establish an unfair labor practice . It relates to
justification, and the burden of such proof is on the
employer." N.L.R.B. v. Fleetwood Trailer Co., 389
U.S. 375. On the record evidence on its totality in
this case , I find that the Respondent has proved
that Davidson and Colvard were in fact replaced on
this project and shall therefore recommend dismis-
sal of the complaint as to both of them.
When Roberds was assigned to reactivate the
project, the strike was still in progress, all of the
employees were still picketing , and there was no
way of knowing whether any would abandon the
strike once strikebreakers began to work. It was a
nonunion job, employees were moved about from
one assignment to another at the will of the Em-
ployer , there were no agreed -upon restrictions
against employees crossing craft lines , and rates of
pay bore no necessary relationship to comparative
ability. The only indication of special skill require-
ments shown on this confused record is that the
employees as a group were primarily plumbers and
pipefitters of varying degree of ability. It is signifi-
cant that the newly formed Local 351 of the Plum-
bers International petitioned for the overall com-
plement in a single bargaining unit . Moreover,
Roberds, a stranger to Wilburton, knew none of the
50 strikers personally, and therefore could not con-
ceivably have thought in terms of hiring necessary
workmen in the sense of one replacement for this
man, and another to replace that. All he did know
was that Wilburton was wholeheartedly behind the
strike, and that the only chance of resuming work
was to bring workmen from afar.
In addition, there is strong indication that within
the total employee group-there were no definitive
classifications as such, but only vague generalities
about certain talents and work assignments-no
particular kind of work was limited to one em-
ployee alone, but that always there were several
who did the same type of work. Further reason,
therefore, why the case cannot be compared with
any precise replacement situation, where jobs are
separately identified and either filled or vacant.
Roberds was forced to think of general group
replacement, as he testified.
In his attempt to remove from consideration now
all these out-of-towners who had reported for work
before the strike ended, the General Counsel of-
fered evidence that some, at least, had not yet been
tested for welding ability by Tuesday morning when
Colvard arrived looking for work. Colvard had him-
self failed the welding test back in June but been
put to work nonetheless, and at the same rate of
pay as regular welders. The General Counsel's sug-
gested reasoning here must be that the Respondent
had not really committed itself definitely to hire the
new men until they could prove themselves to pos-
sess sufficient welding ability, as late as Tuesday.
Under this view it would have to be said that
Roberds only invited them to travel 450 miles to
take a chance on getting a job, if they could pass a
test. My finding is that all these men from afar were
hired back in Houston when first told to go to Wil-
burton, and with unquestionable finality.
There is no escaping the fact that with at least 10
men hired from elsewhere purely as replacement
for the strikers-a privilege which the law concedes
the Respondent, and with no evidence that there
was need for more employees than were used be-
fore the strike, some of the former plumbers and
pipefitters had to remain without work. Had the
Company called Colvard to work on Tuesday
morning, instead of Green or Baldwin, presumably
one of these would today be standing in Colvard's
place, claiming illegal discrimination . Indeed, the
accusation-why me instead of him?-could have
been made by any employee among the 10 or so
who, in consequence of the general replacement,
necessarily had to be left out in the cold. In fact
two such others-Ellis Brannan and John
Bradshar-did file charges with the Board, but
theirs were dismissed administratively.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a sense Davidson was attempting to jump the
gun on all the other strikers who might wish to
return to work, and themselves also seek to escape
the pain of replacement. Roberds was not obliged
to prefer him to others who had as much right to
reemployment. And this is especially true for the
very reason that the new superintendent could not
know then how many additional workmen would be
needed, and in what duties. What Davidson really
wanted was a commitment that come what may, re-
gardless of whatever other strikers must inevitably
lose their jobs because of the mass replacement, he
must be immune from the general risk. There was
nothing wrong in Roberds refusing to favor him
thusly in advance, and instead feeling his way dur-
ing the next few days as he saw how the replace-
ments filled his requirements and as he fed return-
ing strikers into the needs of the project.
Neither on Monday evening, on the motel
grounds, nor early the next morning, at the jobsite,
could the new superintendent be at all certain of
how many men he needed and on what particular
assignments . Johnny Sharp was the bookkeeper, be-
fore and after the strike. Called by the General
Counsel to testify on one subject, he also said "just
about all" of the men who had struck were rehired;
his testimony is reliable , for he kept the timecards
and knew the men. It may be that of the 10 or so
prestrike employees who never worked again, some
never applied and some, like Davidson and Colvard,
did. No doubt, however, the old group was crowd-
ing the place that day, and Roberds put them to
work as needed. Did he deliberately discriminate
among the returning strikers? There is no conten-
tion that he rehired X or Y in place of Davidson or
Colvard with planned malice. It was a fluid situa-
tion , of the Union's making, and Roberds had to
handle it with an eye principally to get things going;
that is what he had been sent there for.
The General Counsel nevertheless offered
evidence intended to prove the Respondent was an-
tiunion minded generally, and particularly an-
tagonistic to these two men on that score. Both had
long been members of Local 29, Fort Smith, Ar-
kansas, and, of course, they struck and regularly
walked the picket line. In his first talk with David-
son on July 17, Roberds said there were "things
going on we don't approve of on our jobs." The
"things" that had been going on were not only the
strike paralyzing the project-and which the Com-
pany could hardly be expected to approve-but,
apparently, some sort of misconduct, for that very
day two courts-State and Federal-issued separate
injunctions against the picketing. The job was
nonunion , and Roberds expressed surprise David-
son had been hired at all. But the fact remains that
the union membership of both these men was
known to the Company at the very moment when
they were first hired. When, that same evening, the
superintendent also "advised" Davidson to look for
a job elsewhere, he might have meant that he did
not expect to have work for him, but he might have
also have meant the union membership was an im-
pediment. Against this ambiguous, and perhaps
damaging, statement of improper intent, it is fair to
consider also the fact there is no evidence the
Respondent had reason to believe Davidson and
Colvard to be more union minded than any of the
50 odd others who had joined the strike and
picketed. There were as many as 40 pickets on the
line in front of the project at one time. The Com-
pany did reinstate the entire complement-without
discrimination-short of the 11 men brought from
Texas. Forced to admit that there were union mem-
bers among the recalled employees, Davidson and
Colvard attempted to confuse the record by saying
some were members "now," or some had "mem-
bership" cards and others only "application" cards.
It does appear, however, that at least four-Bald-
win, Green, Kirkes, and Robinson-were in one
form or another open union advocates when
rehired. Davidson attempted to color the record
with the statement that he knew of no "active
members of the Union" who were returned to work
after the strike. He was doubletalking. He was a
member of Local 29, but it was Local 351 that was
being formed here and organizing these employees,
and it was therefore Local 351 that all of the em-
ployees were supporting by their open picketing ac-
tivities. So far as the Company knew, if there were
culprits, everybody was in the same boat.
The attempt to overcome the clear and positive
proof of replacement offered by the Respondent is
not aided by Colvard's testimony of a certain con-
versation he said he had with Roberds in the beer
tavern later. Colvard signed his unfair labor prac-
tice charge on August 3; the election took place on
the 4th. At the hearing he testified that on August 5
he sat with Roberds in Smith's beer tavern and that
the superintendent then said he was not going to
hire him back because "I had betrayed him, had
voted for the Union against Hill Engineering." It
was a secret election and Colvard said he did not
reveal how he had voted. He offered no suggestion
of how Roberds could have known how he had
voted. Roberds denied having said to Colvard that
his union activities had anything to do with his
failure to return to the job. In his investigation af-
fidavit, dated September 5, Colvard stated that this
conversation took place on August 7, at the jobsite.
On November 20, the very day before the hearing,
he signed a supplemental affidavit, now changing
both the time and place of the alleged conversation
to comport with the oral testimony he was prepar-
ing to give. This last affidavit also altered other
statements previously made. I do not credit Colvard
here, and believe Roberds' testimony that he did
not tell the man the reason why he was not recalled
was his union activities.
The only remaining item of testimony of suffi-
cient weight to merit comment here was given by
Kirkes, a welder, who was a member of Local 351
and was rehired after the strike. He testified that
early in July, before the strike, he heard Shiflet,
HILL ENGINEERING , INC. 477
then a foreman , say "that if there was any strike, or
anything , that Mr . Davidson wouldn 't have to worry
about coming back to work ; that he wouldn't be
hired back ." Shiflet was himself a member of Local
Union 29 , as was Davidson; Kirkes was discharged
from the project before its completion . Roberds, a
stranger to the job after the strike , was not shown
to have had anything to do with Shiflet , a low su-
pervisor and himself in doubt of reemployment.
Even assuming that Shiflet did express the thought
attributed to him by Davidson ( Shiflet did not ap-
pear as a witness ), I deem the fact insufficient to
overcome the substantive defense evidence of
economic replacement , or to warrant an express
finding of the commission of an unfair labor prac-
tice in the isolated circumstance.
On the record in its entirety , including very
minor matters not set out above , I find the evidence
insufficient to prove the substantial allegations of
the complaint , and shall therefore recommend its
total dismissal.
RECOMMENDED ORDER
It is hereby recommended that the complaint
against Hill Engineering , Inc., be, and it hereby is,
dismissed.