J.A. Clawson Construction Co.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1121 (N.L.R.B. 1971)

J. A. CLAWSON CONSTR. CO.
J. A. Clawson Construction Co. and Eldon Gough.
Case 19-CA-4819
August 27, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On April 29, 1971,-Trial Examiner Robert-L. Piper
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,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant,to the provisions of Section 3(b) of the
National .Labor. Relations Act, as amended, the
National Labor Relations Board has delegated its
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, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National `Labor'
Relations Board adopts as its Order the recommend-'
ed Order of the Trial Examiner and hereby orders
that the Respondent, J. A. Clawson Construction
Co., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION '
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Twin Falls, Idaho, on January-
28, 1971, pursuant to due notice. The complaint, which was
issued on September 16, 1970,1 on a charge filed June 8,
alleged in 'substance that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) and (3) of the
Act by discriminatorily discharging Eldon Gough, an
employee.-Respondent's answer denied the alleged unfair
labor practices. The General Counsel"- and Respondent
filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
1 All dates hereinafter refer to 1970 unless otherwise indicated.
FINDINGS OF FACTS
1. JURISDICTIONAL FINDINGS
1121
Respondent is an individual proprietorship owned by J.
A. Clawson engaged ' in general contracting in, Idaho.
During the past year it purchased - and received goods and
materials valued in excess of $50 ,000 directly from points
outside Idaho, or from suppliers within Idaho which
purchased said goods and materials directly from points
outside Idaho. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural and
Ornamental Ironworkers, AFL-CIO, Local Union 732,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
On May 20 Eldon Gough, the Charging Party,, was
employed by Respondent as an ironworker at its, Filer,
Idaho, fairgrounds project. On May 20 the Union
requested Respondent to discharge Gough because of his
lack of membership in the Union, `which Respondent did.
The issue, as framed by the pleadings,' is alleged
discrimination and interference, restraint, and coercion by
the discharge of Gough. The General Counsel contends
that Gough was discharged; at the request of the Union
because of his lack of membership therein , at a time when
Respondent was not a party to any contract or hiring
agreement with the Union. Respondent concedes its
discharge of Gough, contending', that it was a party to a
contract with the Union, or, alternatively that Gough's
employment resulted-through a mistake as to his identity.
B. Chronology of Events
In early May Respondent commenced the construction
of a grandstand at the fairgrounds in Filer, Idaho. On May
19 Gough, who was not a member of the Union' and had
heard that Respondent employed nonunion workers,
applied for a job as an ironworker at the project and was
hired by Lee Baxley, Respondent's foreman. Gough was
the first ironworker employed on the project. His' job
consisted of placing reinforced steel. The following day,
May 20, Ross Jensen, -the Union's business manager,
having learned that Respondent-had employed an iron-
worker, came to the project . He asked Gough ' what -he
thought he was doing there and told him that he had no
business being on that job. At Gough's suggestion, they
conferred with Baxley. Jensen told Baxley that' Respondent
had no business "scabbing the-iron in', and - that Jensen
wanted-Respondent to'sign a contract with the Union or he
would shut the job, down. Baxley replied that he would
have to consult Clawson or John Starry,' Respondent's
general superintendent. Baxley called Starry who appeared'
192 NLRB No. 167
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the jobsite shortly thereafter and met with Jensen and
Gough. Jensen told Starry that just because Jensen had let
Respondent "scab in" the steel on the smaller jobs was no
sign that he was going to let Respondent get away with
scabbing in the steel on the larger jobs. Jensen also'told
Starry' that "Gough had no right to be on the job because he
was not- a member of the` Union, and that Respondent
would have' to let him go'. Jensen informed Starry "that
Respondent 'did not have a contract with the Union, and
that' he would have ' to sign' a contract' immediately or the
Union would shut the job down.
When Starry indicated that he thought there were no
ironworkers available through the Union, Jensen replied
that he had many ironworkers sitting-on the bench and
could supply any number as soon as Respondent signed a
contract. ,Starry asked Jensen if Gough could finish out the
day. Jensen replied "no," and that the Union would shut
the job down. Starry then asked Jensen to dispatch Gough
to the job, which Jensen refused to do because he had
members sitting on the bench at the Union's hiring hall.
Because Clawson was-out of town and Starry did not want
the project shut down, he signed a short-form compliance
agreement, which 'adopted the Union's labor agreement
with the AGC by reference, ,anda thereupon discharged
Gough, advising`' him` that Respondent had no other choice.
Starry admitted that-prior to his execution of the contract
on May 20 Respondent had no contract currently in effect
with the 'Union. -In 1963,"while- engaged in a construction
project in Blackfoot, Idaho,'Respondent had entered into a
similar contractual arrangement with the, Union, which
contract had (terminated at least a , year before May 20.
Shortly, after May 20 - and Clawsdn's return to town,
Clawson executed an identical short-form compliance
agreement with, the Union because of some doubt with
respect to Starry's -authority to bind Respondent, which
further corroborates Jensen's and Starry's testimony that,
on May 20 Respondent hadno"contract in effect with the
Union other than the one entered into that day,. On June 8
Respondent reinstated Gough at the'request of the Union.
C. Discrimination
The complaint alleged that on or about-May-20, at a time
when Respondent was not a party, to any contract with the
Union". Respondent, discharged Gough at the Union's
request because of his lack of membership,in the Union.
Respondent adriiitted the"foregoing, with the exception of
the allegation that it was not, a party to ;any contract with
the, Union. The' record establishes, beyond dispute that
Respondent ywas- not a,;party to any collective-bargaining
agreement or exclusive hiring arrangement with the Union
on May 20. Both:Jensenand Starry testified that,there'was
no contract in, effect at that time. The Union's insistence
that, Respondent; enter into a contract,- and Respondent's
entering into a contract,, on May. 20, further demonstrates
that both parties knew and admitted'that there was no
contract between them, at the time. Respondent attempted
to- demonstrate that ,'a,contract-entered into between it and
the, Union in 1963, , with respect to the employment of
ironworkers- by Respondent that year, was still, in, effect
because of a clause therein providing for year-to-year
renewal in the absence of written notice from either party.
However, the record demonstrates that such notice was
given by the Union, which under the terms of that contract
terminated it. On June 1, 1969, the Union and the Idaho
branch of the AGC entered into a new labor agreement
effective through May 31, 1972 . Under the terms of the
prior contract , the Union prior to June 1, 1969 , notified all
of the parties thereto, including Respondent and all other
contractors who had signed short-form- compliance agree-
ments , of the Union 's desire formodification , which notice
constituted termination pursuant to the provisions of
article XXXI 'thereof . Clawson admitted that- he had
received such notice. Thus at that time any contract which
might have existed between Respondent . and the Union
was terminated. It was , undisputed that Respondent was
not a party to the contract effective , June 1, 1969.
Respondent's contention that its dischargewof Gough was,
not in violation of the , Act because his hiring was a case of
mistaken identity - is - equally without merit . Clawson
testified that he had requested his office to call }theUnion
for ironworkers shortly before 'May 20 . However, Jensen,
whom I'credit, testified that the Union had received no call
from Respondent for ironworkers. Respondent contended
that when' Gough applied for the job on -May' 19,
Respondent employed him under the mistaken belief that
he had been dispatched by the Union .` The record,
establishes the contrary . Moreover, a refusal to employ
Gough because he had not been dispatched by the Union
would in itself be a violation of the Act, sans a , valid,hiring
agreement with the Union.
Thus we ' are left with a record which establishes that at
the request or, demand ' of ' `the Union, accompanied by a
threat to shut down the job, at a time when- Respondent'
was not a party to any contract or hiring arrangement with
the Union and it had no right to demand the discharge of
an employee because he was not one of its members,
Respondent discharged Gough for that reason. I am
satisfied and find that Respondent discharged Gough at
the demand of the Union because he , wasnota member
thereof,, at a time when Respondent was not aparty to any
contract, hiring arrangement , or valid union-security
agreement with the Union , thereby discriminating against
him in violation of Section 8(aX3) and (1) ' of the Act.
Upon the basis of the foregoing findings Iof fact and the
entire record in the case, I make the, following:
CONCLUSIONS OF LAW
1. - Respondent is an employer engaged in commerce,
and , the Union , is a labor organization, within the : meaning
of. the Act.
2. By discharging Gough at the request of the Union
because of, his lack of membership therein, Respondent
engaged in discrimination to encourage membership in, the
Union, thereby,engaging in unfair labor practices within
the meaning of, Section $(ax3) and (1), of the Act.
3., The , aforesaid unfair labor practices affect commerce
within the meaning of , Section 2(6) and (7) - of the Act.
THE REMEDY
Having found that Respondent engaged in certain-unfair
labor practices, I shall recommend that it tease and desist
J. A. CLAWSON CONSTR. CO.
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the Order recommended below, which I find necessary
to remedy and remove the effects of the unfair, labor
practices and to, effectuate the policies ofthe Act. Because
the record establishes that Gough was reinstated to his
former or substantially equivalent position , it is unneces-
sary to recommend reinstatement:
Upon the foregoing findings- of'fact, conclusions,of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:2
ORDER
J. A. Clawson Construction Co., its sole proprietor, J.
A. Clawson, and its agents, successors, and assigns, shall:
L' Cease and desist from: `
(a) Encouraging membership in International Associa-
tion of Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, Local Union 732, or any other labor organiza.-
-'tion, by discharging or in any other manner discriminating
against employees in regard to hire or tenure of employ-
ment or any term or condition of,employment because of
their lack of membership in such labor organization , except
to, the -extent permitted by the proviso to Section 8(a)(3) of
the Act.
(b) In any like , or related manner interfering with,
restraining, or coercing employees 'in the exercise -of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a)'Make Eldon Gough whole for any loss of pay he may
have suffered by payment to him of a sum of money equal
to that which he would normally have earned from the date
of his discharge to the date of his reinstatement , less his net
earnings during said period . (Crosset Lumber Co., 8 NLRB
440), said backpay to be computed on a quarterly basis in
the manner established ' by the Board in F. W. Woolworth
Company, 90 NLRB-289, together with interest thereon at
the rate of 6 percent per annum. (Isis Plumbing & Heating
Co., 138 °NLRB' 716.) '
(b) 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 determine the amount of backpay due under
this recommended Order.
'(c) Post at their construction projects in Idaho copies of
the attached notice marked "Appendix ."3 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt' thereof and be maintained by it for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any ' other
material.
(d) `Notify the Regional Director for Region 19, in
1123
writing, within 20'days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith 4
2 In the event no exceptions are filed ' as provided by,S2ction=102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided in
Section 102 .48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto shall
be deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals ,-the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of iheNational Labor Relations Board."t -
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 19, in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY` ORDER OF -THE
NATIONAL LABOR - RELATIONS BoARD ,
An Agency of the,United States Government
WE WILL NOT encourage membership in Internation.
al Association of ,Bridge, Structural and Ornamental
Ironworkers, AFL-CIO, Local Union 732, or any other
labor organization, by discharging or in any other
manner discriminating against our employees. in regard
to hire or' tenure of employment or' any term or
condition of employment -because- of their lack of
membership- in such-'labor organization, except to the
extent permitted by proviso to Section 8(a)(3) of-the
Act. ,
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce our employees ,in the exercise
of any of the rights guaranteed them by the National
Labor Relations Act.
WE WILL make Eldon Gough whole for any loss of
pay which he may have' suffered as 'a result of our
discrimination against him: '
J. A. CLAwsoN
CONSTRUCTION CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This' notice must remain posted for 60 consecutive'days
from the date of posting and must not bi: altered, defaced,
or covered by any other material. - - ' `
Any questions concerning this notice or compliance with
its provisions , may be directed to the board's Office,
Republic Building , 10th Floor, 1511 Third Avenue , Seattle,
Washington 98101 , Telephone 206-583-7473.