M. J. Electric, Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 5, 1968171 N.L.R.B. 1054 (N.L.R.B. 1968) Copy Citation 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. J. Electric, Inc. and Frederick E. Ojala. Case 30-CA-67 2 June 5, 1968 DECISION AND ORDER On March 20, 1968, Trial Examiner Jerry B. Stone 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 at- tached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief, 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 sup- porting brief, the Respondent's answering brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations 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 be, and it hereby is, dismissed in its entirety. ' We note that the Trial Examiner's Decision inadvertently refers to the failure of Weigand to seize on incidents in a local bar "as a basis for discharging Weigand" when it is clear from the context that it should read "as a basin for discharging Ocala "The Decision is hereby corrected in this respect The General Counsel excepts to the Trial Examiner 's credibility findings. It is the Board 's established policy, however, not to overrule a Trial Ex- aminer 's resolutions with respect to credibility unless, as is not the case here , the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dr% {Nall Producvi, fn( , 91 NLRB 544, cnfd 188 F 2d 362 (C A. 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner : This proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended , was tried pursuant to due notice on January 16, 1968 , at Iron Mountain, Michigan. The charge was filed on October 13, 1967. The complaint in this matter was issued on November 20, 1967. The issue in this case is whether or not since on or about September 25, 1967 , Respondent has refused and continues to refuse to rehire Frederick E. Ojala because of his membership in, support of, and activities on behalf of the Union and because of his previous protected concerted activities. All parties were afforded full opportunity to par- ticipate in the proceeding, and the General Counsel and Respondent filed briefs which have been con- sidered. Upon the entire record in the case and from my observation of witnesses , it is hereby found as fol- lows: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER' M. J. Electric, Inc., the Respondent, is a Michigan corporation. The Respondent maintains its principal office at Iron Mountain, Michigan, and at all times material herein has been engaged at various locations throughout the United States, in- cluding Houghton, Michigan, as an electrical con- tractor for the building and construction industry. During the past year ending on November 20, 1967, a representative period, Respondent, in the course and conduct of its business, performed ser- vices valued in excess of $50,000 at places located outside the State of Michigan, and during the same period Respondent purchased and received goods and materials in interstate commerce , valued in ex- cess of $50,000, from sources located outside the State of Michigan. Based upon the foregoing and as conceded by the Respondent, it is concluded and found that, at all times material herein, Respondent is, and has been, an "Employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "af- fecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION INVOLVED2 Local Union No. 19, International Brotherhood of Electrical Workers, herein called the Union, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. The facts are based upon the pleadings. The facts are based upon a stipulation of the parties. 171 NLRB No. 147 M.J. ELECTRIC, INC. 1055 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Events of 1963 and 1964 3 In April 1963 the Respondent was engaged in a construction project known as "the math and physics job" at Houghton, Michigan. This job was located within the jurisdictional area of Local Union No. 19, International Brotherhood of Elec- trical Workers. The Respondent's collective-bar- gaining agreement with Local 19 was in effect and governed as to collective -bargaining terms and as to securing of employees for hiring through the union referral system. Frederick E. Ojala, a member of Local 19, was employed on "the math and physics job" from April 29, 1963, to March 20, 1964. The Respon- dent's general foreman on this job was John Weiland and one of the foremen was Gordon Kus. O,lala, after commencing employment on April 29, 1963, complained to Foreman Kus and fellow union members about employees who were not electrical workers doing work which he felt electri- cal workers should do. Thus Ojala complained that laborers were plugging cords of electrical lights into fixtures. These cords were cords of electrical lights made up by electrical workers. The cords were plugged in at various outlets for use by laborers and others while doing their basic work . Ojala's com- plaint was that the physical act of plugging the cord in the outlet should be electrical workers' work. Around June 1963 Brey , Local 19 's business agent, became tired of hearing Ojala complain and told him so . Brey, who had been serving as job steward, asked Ojala if he would like to be job steward. Ojala replied that he would like to be job steward. Brey, thereupon, appointed Ojala as job steward.' Ojala credibly testified to the effect that he had considered that enforcement of the work rules had been lax . Ojala credibly testified to the effect that in June 1963 he commenced straightening things out. Ojala's total testimony was to the effect that he was able to adjust all grievances without the necess- ity of a written grievance during the period of time June 1963 to March 20, 1964. Specifically, Ojala testified to the effect that around June 1963 the Ironworkers had been mov- ing electric motors and that he insisted successfully at that time that the Electricians hoist such motors. As to specific incidents of grievance type discus- sions, Ojala testified to four other events. Thus Ojala credibly testified to the effect that one in- cident occurred in September 1963. What occurred is revealed by the following credited excerpts from Ojala's testimony. A. Yes. I called John Weigand aside. I was the union representative on the job. He told me with the help of the laborer to install con- duit and I immediately told Mr. Weigand that it was an electrician's job to install conduit and I refused to have a laborer help me because we had many electricians out of work at this time and they were available for work. So, I refused to work with the laborer. I waited there until he sent another electrician to help me and shortly thereafter the company did hire more electricians to take care of the electricians' work instead of trying to use laborers. Ojala credibly testified to another incident which occurred in October 1963. What occurred is revealed by the following credited excerpts from Ojala's testimony. Q. All right, Mr. Ojala, I call your attention to a certain day in October, 1963, did you again have occasion to have a conversation with Mr. John Weigand? A. Yes, I did. Q. Where did this conversation take place? A. It was on the second floor of the math building . I was installing boxes for outlets. Q. Who else, if anyone, was present when you spoke to Mr. Weigand on this occasion? A. I don't believe anybody else was present at this time. Q. All right. What do you recall saying to Mr. Weigand at that time and what do you re- call him saying to you? A. Well, I just had finished putting in the boxes on the second floor and I was checking it over and Mr. Weigand came up to me and said , "Well, it looks like you're done, you'd better get up on the third floor and start in- stalling boxes up there." I told him that I was waiting for my foreman. I said, "If the foreman is too busy working with the tools to supervise his men ," I said I'd wait for him and he should get him and have him relay the message that I don't take orders from anybody but my im- mediate foreman, it's against the contract. And so, therefore, John Weigand proceeded to tell me that the contract didn't mean a thing to his company and as far as he was concerned that I could take and wipe my ass with that contract. Ojala credibly testified to another incident with Weigand which occurred in December 1963. What occurred is revealed by the following credited ex- cerpts from Ojala's testimony. A. Yes, it was just prior to the Christmas party. I went into the office to ask him what time we were going to knock off work as the other trades were being let go at 2:30. I asked him if it was going to be the same for us and - fhe facts are based upon exhibits and the credited testimony of Ojala, Brey , Brule , Kus, Weigand , and Lystelia. The steward must be a member of the local union within the jurisdic- tion where the job is being performed and must be appointed by the busi- ness agent or business manager of the local union involved 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we had a few words . I said, "John , I don't like the way you've been operating here , you've been continually breaking down our contract, and I'm going to try to see to it that you don't come into the area again ." And so he proceeded to tell me that he will personally then see to it that I never work in my home area again for the M . J. Electric company. Ojala credibly testified to the fact that on another occasion , sometime between April 29, 1963, and March 20, 1964, that he had a discussion with General Foreman Weigand about Foreman Kus' working with tools . What occurred is revealed by the following credited excerpts of Ojala's testimony. Q. (By Mr. Taine) Where did you talk with Mr. Weigand about Mr. Kus? A. Well, it was on the job site. Q. All right. When, if you can recall? A. I don't exactly remember when. Q. All right. Who else , if anyone, was present , if you can recall? A. Well, usually I talked to him alone. Q. All right, and what do you recall saying to Mr . Weigand and what do you recall him saying to you? A. Well, I told him that the foreman shouldn 't be working with the tools when they have so many men , and immediately after that they appointed another foreman , Don Miles, and that way after they cut down the crews then they were allowed to work with the tools; so, therefore , we had another foreman ap- pointed on the job which made it fair for him to work with the tools after this time, when I spoke to him. Q. When you say they weren 't allowed to, what do you base that on? "Allowed to?" A. Well, work with the tools . A foreman is not allowed to work with the tools after he has six men and the limit was exceeded while Mr. Kus was working with the tools. Q. And as a result of this conversation, what occurred? A. They had appointed another forman on the job and split the crews up so that the foremen were allowed to work with the tools. Weigand credibly testified to two incidents in- volving Ojala that occurred in 1964 before Ojala was laid off. What occurred in those incidents is revealed by the following credited excerpts from Weigand 's testimony. THE WITNESS : Yes. Before this incident at the bar he threatened to take me outside if he ever caught me away from the job and kick the shit out of me, in his exact words. Q. (By Mr. Stokes ) Do you remember about when that conversation took place? A. It was in the spring of '64 but before he was laid off, because I left the job shortly after he was laid off. Q. Do you know where that conversation took place? A. At the job site. 0. Do you remember where at the job site? A. No, I don't. Q. Do you remember what you said to him, if anything? A. Well, I remember the threat but I never paid that much attention to what he said, because most of the time he was just trying to get me riled , anyway , so I just let it go in one ear and out the other . I don't recall anything else outside of the threat. THE WITNESS: Well, he walked in the door of the bar. The bar was kind of a long, rectangular bar running along with the street and he came in on the far end opposite from where I was, walked toward me, toward the end of the bar. But there were men in between, see, and then he started to pursue this argu- ment or words that he had had with me previ- ously about that he would like to take me out- side and beat me up . One of the men of the Local, and I don 't recall who it was, took him to the side and talked to him and Fred then left and nothing came of it. 0. (By Mr . Stokes) Did you ever go outside with Mr . Ojala? A. No, I stayed there and had a good time. On jobs , such as the " math and physics" job, there accumulate amounts of scrap copper wire. It is clear that the Respondent and the employees un- derstood that the employees were to be allowed to take the accumulated scrap copper wire, burn the same , sell the scrap copper , and either have a party with the proceeds or split the proceeds among the employees . The aforesaid scrap copper wire is known as "rabbit." There appears to be no formalized method in selecting the person to have the scrap copper wire burned and disposed of. It appears that Ojala took the initiative in December 1963 or January 1964 in handling the scrap copper wire. Kus told Ojala that he (Kus ) would handle the matter since he (Kus) lived closer to the scrap dealer . Ojala however told Kus that he ( Ojala) would handle the scrap copper wire disposition. In December 1963 or January 1964 Ojala re- ported back to the crewmembers (9 other than himself ) that he had burned and sold the scrap copper wire, that he had received $40 for the same, that their share was $ 4 each , and that he wanted $10 for burning and transporting the scrap copper wire. The employees involved were of the opinion that the value of the scrap copper wire was higher than the amount that Ojala told them . Some of the employees believed the amount of the sale should have been in excess of $100. One of the employees, Lystelia, told Ojala that he was displeased and that M. J. ELECTRIC, INC he wanted Ojala to bring in a receipt the next day showing what he had received for the copper wire. Ojala in effect told Lystelia that it was none of his business and that he had no standing to request a receipt. Lystelia argued that he, as one of the crew to share in the proceeds, had a right to be in- terested in the matter. Ojala refused to produce a receipt for Lystelia, and until the date of the hear- ing in this matter he had never produced a receipt for the crewmembers relative to the sale of the scrap copper. The crewmembers then asked Foreman Kus to telephone the scrap dealer to ascertain what Ojala had been paid for the scrap copper. Kus telephoned the scrap dealer and was told by the scrap dealer that he had paid Ojala around $60. Kus related this information to the crewmembers. It is clear that the crewmembers were unhappy about the amount of money that Ojala had produced for the sale of the copper. The next day James Brey, the business agent of the Local, spoke to Ojala about the matter. What transpired is revealed by the following credited excerpts of Brey's testimony: A. Our main headquarters at that time was down in the switch room and right off the switch room was a little room called the bat- tery room and I said to Fred, "Come on, step inside." The reason I asked that is there was other members there and I thought it was proper that I should take him out of the room, which I did. I really told Fred in no uncertain terms that, and he'll have to sit there and verify it, I says "I appointed you steward to represent the men." I says, "I stick my neck out to make a man steward." I says, "You turned around and shoved it up that far and broke it off." Now, I says, "Those men out there have no respect for you," I says, "and you know they haven't." But , I says, "You're still representing them. How low can we go?" I says, and he knows I was teed off that morning, and right now thinking of it I get teed off the same way because of what happened then, I don't think it was right. Q. (By Mr. Stokes) Do you remember Mr. Ojala saying anything to you? A. Well, he had comments. Like I say, I got steamed up. I guess he told me that he had talked to the fellows about taking a little bit over and above the average cut of $4 per per- son. I says, "I don't think that is the main thing or the main issue at the present time." I said, "The main issue is you were asked to bring in a statement ." I says, "Every man out there that's 1057 a member and a participant in this rabbit is en- titled to see the statement of how much money you got and how much rabbit was sold." I myself as the Business Manager and a member of the job was entitled to the same benefit, which I didn 't see the statement , either. On March 20, 1964, Ojala and several other crewmembers were laid off because of a normal slowdown of work when Respondent no longer needed employees . There is no issue and it is clear that the layoff was neither discriminatory nor disciplinary in nature. In September 1964 the Respondent was engaged in work at a job known as the "Two Rivers" job in Two Rivers , Wisconsin . It appears that the Respon- dent was having difficulty in securing enough em- ployees for this job . Although the job was outside the jurisdictional area of Local 19, the Respondent asked Brey , business agent of Local 19, if there were any men in his local who might like to work there . The Respondent indicated that it would like to have them sent to this job. Brey told Ojala about the job and that it would last for a week or two. Ojala reported to the job and worked from Sep- tember 8 to 18, 1964, when he quit. The "Two Rivers " job was located some 250 miles from Ojala 's home . Ojala was classified as an inside wireman electrician-journeyman electri- cian-by Local 19. On the "Two Rivers" job Ojala was used primarily as an outside lineman and paid lineman 's rate of $4 . 06 an hour rather than the higher rate of pay for a wireman. Ojala filed a claim for unemployment pay after September 18, 1964. There is no issue that Ojala's "quit" was justified. After hearings in which reasons were given for Ojala's quit, the ultimate decision of a referee of the Michigan Employment Security Commission issued on December 1 l , 1964. The decision was to the effect that Ojala was not disqualified for benefits based on his separation of September 18, 1964. Although an earlier determination by the aforesaid commission had been adverse to Ojala and Ojala had appealed the same, it is clear that the Respondent in no way opposed Ojala's receipt of unemployment benefits. Around September 29, 1964, Ojala was referred by Local 19 to the "math and physics" job at Houghton , Michigan . Ojala reported to Gordon Kus. Kus told Ojala he could not hire him. Events of 1966 In May 1966 Ojala was referred by Local 19 to the "Huss Paper Mill job" in Ontonagon, Michigan. Ojala reported to Gordon Kus, who was general foreman on the job. Kus took Ojala's referral slip, told Ojala that he hoped that he hadn't quit his job, It is not clear whether Kus was a foreman or a general foreman at this time. It is clear that he was representing the Respondent with respect to whether Ojala would be hired or not. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Ojala that he could not hire him, wrote refused on the referral slip and signed his name, G. Kits, on the place indicated for "Employer Signature." Kus told Ojala that he had orders from the M. J. Elec- tric, Inc., office in Iron Mountain, Michigan, not to hire him.I B. Events of 1967 The Alleged Illegal Refusal To Hire On September 25, 1967, Ojala was referred by Local 19 to the " High Rise" job in Houghton, Michigan . Ojala reported to Gordon Kus, who was the general foreman on the job . Kus told Ojala that he had orders from the office not to hire him, that he had to refuse him, and Kus marked on the refer- ral slip " not acceptable " at the place indicated for a signature by the employer and signed G. Kus.' C. Motivation Refusal To Hire-September 25, 1967 The issue in the case is whether or not Respon- dent was discriminatorily motivated, within the meaning of Section 8(a)(3) and (1) of the Act, in its refusal to hire Ojala on September 25, 1967. In addition to the facts previously set forth, it is noted that the evidence overwhelmingly reveals that the Respondent has operated as a business for a number of years with amiable management- union relations. Excepting for the alleged dis- criminatory incident herein, there is no evidence that the Respondent has ever acted in a discrimina- tory manner, within the meaning of the Act, toward its employees or prospective employees. Excepting for the remarks made by General Foreman Weigand to Ojala in October and December 1963, there is no evidence that the Respondent, by any of its supervisors or agents, ever made remarks of a threatening nature concerning an employee's union or concerted activities. In addition to the foregoing, President Brule and Kus both testified in a frank, forthright, and truthful manner concerning the reasons for Respondent's refusal to hire Ojala on September 25, 1967. A determination of motivation in this case requires a composite evaluation of all of the facts and the testimony of Brule and Kus thereto. Con- s The facts are based upon a composite of the credited testimony of Ojala and Kus . Kus testified that he merely said , " Fred , I still can 't accept you." The facts are clear that shortly before May 1966 Kus had discussed with the office the question of hiring or not hiring Olala. Considering this and the logical consistency of all the facts, I find Ojala 's testimony to be more complete and discredit and reject any inference that the less detailed testimony of Kus reveals that he did not refer to orders from the home of- fice. ' Kus testified that he merely told Ojala that he was not acceptable and that he did not tell Ojala that he would like to have him Ojala testified to the effect that Kus stated that he would like to have him as an employee. Both witnesses on this point appeared to be trying to testify truthfully. sidering all of the facts and the testimony of Brule and Kus, I am convinced that the preponderance of the facts and the demeanor and testimony of Brule and Kus require a crediting of Brule's and Kus' testimony as to the reason for the refusal to hire Ojala on September 25, 1967. Considering all of the facts and in connection therewith the credited testimony of Brule and Kus as to the reason for the refusal to hire Ojala on Sep- tember 25, 1967, 1 am convinced that Weigand's remarks to Ojala in October 1963, about what Ojala could do with the contract, was one of tem- porary anger and not persuasive evidence of lasting motivation. I am convinced that Weigand was angry to find an employee who had finished a job and who had to have the foreman specifically instruct him to go on to the next job. I am also convinced that Weigand's remarks to Ojala in December 1963 to the effect that he would see to it that Ojala would not work in his home area was also one of temporary anger and not persuasive evidence of lasting motivation. It is easy to understand Weigand's anger since Ojala had just threatened that he would try to keep the Respondent from getting jobs in the same local area. Were Weigand's remarks other than that of tem- porary anger and in fact that of persuasive evidence of lasting discriminatory motivation, I am con- vinced that when Ojala, in early 1964, threatened to take him outside and beat him up, both on the job and at a local bar, that Weigand would have seized upon such incidents as a basis for discharg- ing Weigand. That Weigand did not do so convinces me that Weigand's remarks in October and December 1963 were remarks made in temporary anger and were not remarks which, considered with all other facts, constituted evidence of lasting dis- criminatory motivation on the part of the Respon- dent. Brule credibly testified to the effect that top management 's motivation with respect to the refusal to hire Ojala on September 25, 1967, was based upon nondiscriminatory reasons . Thus Brule credibly testified that top management had had re- ports concerning Ojala's work on the 1963-64 "math and physics" job, that such reports were to the effect that Ojala was not up to the Respondent's standards of accomplishment or skill as a jour- neyman, and that such reports were to the effect that Ojala was not well liked by his fellow em- From all of the evidence I am convinced that Kus , in fact , did not want to employ Ojala. Kus appeared to me to be the type of person who would not have been greatly concerned over whether Ojala knew that he did or did not want Ojala as an employee . Considering the logical consistency of all of the evidence , I am convinced that Ojala construed Kus' remarks about or- ders from the office not to hire Ojala as being in effect an indication that Kus would like to.. On the other hand, I am convinced that the logical con- sistency of the evidence militates for belief that Kus would indicate to Ojala that he had orders from the office not to hire him. I am persuaded that Kus did not specifically tell Ojala that he would like to hire him . I credit the testimony of the witnesses accordingly. M J. ELECTRIC, INC. 1059 ployees. Brule credibly testified to the effect that the Respondent gave great weight to the desires of the general foreman on the job, and that General Foreman Kus did not want to hire Ojala on Sep- tember 25, 1967." Kus credibly testified to the effect that based upon his observation of Ojala at work in 1963 and 1964 he did not consider that Ojala could operate on work by himself and did not reveal the exercise of initiative in work, and that in such respect Ojala lacked an attitude of initiativeness. Kus credibly testified to the effect that his part in the decision to refuse to hire Ojala on September 25, 1967, was based upon his observation and beliefs set forth above" and upon the fact that he did not want to hire Ojala because he felt that Ojala had in effect stolen from the crewmembers with respect to his handling the proceeds from the sale of the scrap copper in January 1964. Considering all of the facts and the foregoing, I conclude and find that the facts reveal that the Respondent refused to hire Ojala on September 25, 1967, because of nondiscriminatory reasons within the meaning of Section 8(a)(3) and ( I ) of the Act. CONCLUSIONS OF LAW 1. M. J. Electric, Inc., the Respondent, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 19, International Brother- hood of Electrical Workers, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not, as alleged, violated Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety. ' Brute credibly testified to the effect that reports as to Ojala 's work in 1963 or 1964 were of such a nature that the Respondent would not fire him but on the other hand that such reports were of such a nature that the Respondent would not have rehired him for such work . Brute credibly testified to the effect , and the facts otherwise reveal, that the job for which Ojala was hired in September 1964 at Two Rivers was less demanding in skill. ' Although Ojala may very well have had the skills and abilities to perform the work, I am convinced that Kus' testimony as to his observa- tion of Ojala's work and his beliefs thereon are credible. 353-177 0 - 72 - 68 Copy with citationCopy as parenthetical citation