Morrison-Knudsen-Strabag

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 312 (N.L.R.B. 1973)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrison-Knudsen-Strabag, a Joint Venture of Morri-
son-Knudsen Company, Inc. and Strabag Bau, A.G.
and James Bogema . Case 7-CA-9543
June 20, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 30, 1973, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings at the hearing but, for the reasons set
forth below, has decided to dismiss the complaint in
its entirety.
The General Counsel alleges that Respondent vio-
lated Section 8(a)(3) of the Act by failing to recall
James Bogema from seasonal layoff status because of
his prelayoff protected concerted activities as a union
steward. Respondent alleges that the reason for not
recalling Bogema was not any protected union activi-
ty, but Respondent's good-faith belief that Bogema
instigated "wobbles," i.e., slowdowns or temporary
work stoppages by various employees at the jobsite,
which violated the collective-bargaining agreement's
no-strike clause.
In analyzing the evidence in this case, the Adminis-
trative Law Judge appears to have placed on Respon-
dent the burden of proving that Bogema instigated the
wobbles. After citing substantial evidence adduced by
Respondent tending to show Bogema's complicity in
causing the wobbles, the Administrative Law Judge
admits that suspicion is cast on Bogema's activities,
but reasons that "mere suspicion is not enough upon
which to ground a finding of the commission of unfair
labor practices." He concludes from a preponderance
of the evidence that while wobbles did occur, "it was
not established that Bogema was the instigator of
these acts."
This analysis is erroneous. When evidence of its
honest belief of misconduct by a dischargee is ad-
duced by a respondent as a defense to an 8(a)(1) or
8(a)(3) allegation, the General Counsel has the burden
of proving that the dischargee did not in fact engage
in the misconduct.' Applying that principle to this
case, the Administrative Law Judge should have
placed on the General Counsel the burden of proving
that Bogema did not instigate the wobbles rather than
placing on Respondent the burden of proving that
Bogema did in fact cause them. It is Respondent, not
Bogema, who is charged with committing unfair labor
practices. The Administrative Law Judge does not
make a specific finding of fact that Bogema did not
instigate the wobbles.
Bogema testified that he never participated in, or
aided in the planning of, any form of a wobble, or
threatened to do so. And there was corroborating tes-
timony from fellow employees Miller and Demmon,
Union Business Agent Sawyer, and Respondent Su-
pervisor Bryers to the effect that while wobbles did
occur, these men were not aware that Bogema had
any part in planning them. It should be noted, howev-
er, that the Administrative Law Judge never specifi-
cally credits Bogema's denial that he instigated the
wobbles, nor does he, as noted earlier, make a specific
fact finding consistent with Bogema's denial.
However, there is the testimony of Respondent Su-
perintendent Jenson, credited by the Administrative
Law Judge, that on one day in August 1971 Bogema
told him that if he (Jenson) persisted in working on
construction equipment, a task reserved to rank-and-
file employees by the current collective-bargaining
agreement, Bogema would shut down the job. Later
that day, a shutdown did occur, although Jenson was
unable to testify to seeing or hearing Bogema give any
orders to the men to stop working. Moreover, there is
the uncontroverted testimony of Respondent Super-
intendent Frasier, which the Administrative Law
Judge does not discuss at all, that on the day of one
of the August 1971 wobbles, he saw Bogema at the
construction site driving from one work station to
another in his pickup truck, after which each work
station suddenly began reporting slowdowns among
its employees.
Under all the circumstances, especially the threat
by Bogema that he would shut down the job and the
subsequent shutdown later that day, we are not satis-
fied that the General Counsel has met the burden of
establishing that Bogema did not commit the acts of
misconduct for which Respondent refused to recall
Bogema . Accordingly, we shall dismiss the complaint
in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
1 Rubin Bros. Footwear, Inc, and Rubin Brothers Footwear, Inc., 99 NLRB
610, M R & R Trucking Company 178 NLRB 167
204 NLRB No. 48
MORRISON-KN UDSEN-STRABAG
be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
BERNARD J . SEFF , Administrative Law Judge : This case
came on for hearing before me on September 27 and 28,
1972,' in Ludington , Michigan . The amended complaint
issued on August 24 , 1972, based on a charge filed on May
22 and an amended charge filed on July 10. The charge
alleged that Respondent engaged in certain unfair labor
practices in violation of Section 8(a)(I) and 8(a)(3) of the
Act in that it refused to recall to its employment James
Bogema . Respondent denies the commission of the unfair
labor practices alleged but admits allegations of the com-
plaint sufficient to support the assertion of jurisdiction un-
der current standards of the Board (inflow of over $100,000
in the past calendar year). The answer further admits that
the Union , Local Union No. 324, International Union of
Operating Engineers , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
FINDINGS AND CONCLUSIONS
I THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
The Company, Morrison-Knudsen-Strabag, is a joint
venture engaged in a project of applying asphalt paving to
the perimeter slopes of a storage reservoir that is to be used
in connection with a thermal electric power generating plant
under construction for the Detroit Edison and Consumers
Power Company.
The Charging Party, James Bogema, came from Kalama-
zoo, and was referred by the Union for a job with the
Respondent. Prior to this job Bogema has a 25-year history
of employment as an operating engineer. While he was in
Kalamazoo he was employed as a business agent for Local
324. He started with the Company as an oiler and had a
succession of jobs, the last one being a winch operator. The
project employs about 130 operating engineers . In August
1971 he was appointed a union steward.
From the outset of his functioning as a union steward
Bogema was zealous in the performance of his union duties.
He testified and was corroborated by his supervisor, the
master mechanic, that he made a great many complaints
concerning working conditions on the job. His immediate
supervisor, Master Mechanic Wayne Bryers, acted in con-
cert with Bogema and frequently accompanied him to top
supervision in support of Bogema's grievances. The site of
the Company's operation is located close to Lake Michigan.
Some of the operators did their work on a ridge located
about 230 feet above the lake. The wind frequently blows
' All events took place in 1972 unless otherwise indicated.
313
at approximately 40 miles per hour and, on a cold day, the
chill factor is considerably below zero. Bogema testified that
he frequently requested the Company to provide shelters on
the machines to shield the men from the biting wind. The
testimony from both Bogema and Bryers was to the effect
that they jointly complained to Project Manager Pope, Field
Superintendent Buckert, and Equipment Supervisor Bud
Frasier. The usual practice on the job was for the union
members to bring their complaints to Bogema who, in turn,
took them up initially with Bryers and thereafter with top
supervision. Despite the frequency of their complaints, al-
though Respondent's top supervisors said they would cor-
rect this condition, nothing was ever done about it. With
respect to the problem concerning excessive cold on the job
section 6, captioned "Duties of Employer," the contract in
subsection (b) states that:
Employers shall be required to furnish suitable shelter
to protect employees from falling materials and ele-
ments of the weather ....[Emphasis supplied.]
There were also many complaints from the men that wa-
ter was not brought to the top of the ridge until about 11
a.m. Bogema brought this grievance to the attention of man-
agement about three times a week. In this connection, the
collective-bargaining agreement between the parties pro-
vides in Section 6, subsection (g) that "the Employer pro-
vide clean, cool drinking water on the job site."
There were also numerous complaints that the plant su-
perintendent of the black top mix, Don Jenson, was per-
forming work normally done by the operating engineers.
Bogema testified that Jenson did this type of work almost
on a daily basis. According to Bogema the contract does not
permit supervisors to perform tasks reserved to the men.
According to testimony in the record the practice was not
to have supervisors do work reserved to the men unless there
was some special emergency. Bogema not only protested
Jenson's performing this type of work but when he contin-
ued to ignore this grievance by Bogema, on one occasion
Bogema threatened to close down the job unless he assigned
the work to the operating engineers.
The Respondent had for a long period provided a school
bus in which the men employed on top of the ridge were
accustomed to be driven to the work site. Arbitrarily one
day the men were told they would have to walk to the top
of the slope. Several of the employees have heart problems,
were on tablets, and were unable to get up the slope on foot.
This matter was brought to the attention of Respondent's
supervisors by Bogema.
Wobbles on the Job
It was established on the record that the terminology
employed on the worksite for a slowdown , walkoff from the
job, or other cessation of work was called a "wobble." It
seems clear that two such wobbles occurred on August 18
and August 23, 1971 . Bogema was charged with causing
these incidents . Bogema denied that he had ever caused an
interruption in work . His denials of such action were disput-
ed by the Company.
The General Counsel adduced testimony from a number
of employees on the subject of wobbles . Leonard Demmon,
who operates a winch cat, admitted that on one occasion he
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walked off the job because of some trouble he had with
another operator on the job named Roy Lashe. Before he
left Demmon reported to Bryers that he was not feeling well
and that he would stay home for a couple of days. On
another occasion he was approached by some workers who
told him a group of men were going home and he was
invited to join them . He said he picked up his lunch pail and
left the job with the other men. Demmon 's actions fit the
description of wobbles . However Demmon clearly testified
that he was never told to wobble, slow down , or walk off the
job by Bogema . I credit Demmon as being a truthful wit-
ness . A number of other witnesses corroborated Demmon's
testimony that Bogema had not instructed the men to en-
gage in wobbles or any other action that interfered with
Respondent 's operations. It should also be noted that Boge-
ma himself did not participate in such actions.
One area of recurring difficulty between Bogema and
Respondent 's supervisory men concerned itself with
Bogema's frequent complaints that Donald Jenson , the as-
phalt plant superintendent , was performing work reserved
to the operating engineers . Jenson testified that on one oc-
casion in August 1971 he was working on an electrical prob-
lem with a motor that would not run . According to Jenson
the mechanic was present along with the operator and Jen-
son. Bogema complained and allegedly said "he would shut
the job down if my [Jenson's] electrical work didn't cease."
Later a shutdown did take place . Jenson further testified
that Bogema 's complaints about working with the tools of
the trade became a nuisance.
Union Steward Shipmen , who displaced Bogema as
union steward , testified that he heard Bogema tell Jenson he
was going to shut the job down . Some hours later a wobble
did occur. There were two other employees who allegedly
heard the threat made by Bogema . Respondent did not
produce them as corroborating witnesses . Both Frasier and
Jenson testified that they did not hear or see Bogema give
such instructions . Both Jenson and Frasier said they did not
know if Bogema told the men to slow down . The Company
did not produce any direct evidence from other employees
that Bogema told them to engage in wobbles . The fact that
a wobble did occur , within a matter of hours after Bogema
threatened Jenson that if he did not stop performing tasks
reserved to the men he would shut the job down , is a suspi-
cious circumstance . However , it is well settled that mere
suspicion is not enough upon which to ground a finding of
the commission of unfair labor practices . It should again be
reiterated that Bogema did not personally engage in any
wobbles that took place . It should also be remarked that
there was friction and rivalry between Shipman and Boge-
ma. This might account for the fact that Shipman testified
in support of the version of the matter given by Jenson. In
any event I was not impressed with Shipman's demeanor
while he was on the witness stand . He testified that he was
not present during all the argument between Bogema and
Jenson . The principal thrust of his testimony was that he
heard Bogema tell Jenson he was going to shut the job
down. If his memory was not so selectively in support of
Respondent's position it might be given greater credence.
The preponderance of the evidence on the subject of
wobbles persuades me that while wobbles did occur it was
not established that Bogema was the instigator of these acts.
Respondent's Refusal to Reemploy Bogema
Bogema was employed from May 5 until November 22,
1971. At the commencement of his employment the union
steward was Richard Shipman. Bogema displaced Shipman
when he was appointed steward in August 1971.On Novem-
ber 4, 1971, Bogema was removed as steward by the Union's
business agent, Gilbert Sawyer. Shipman was reappointed
steward by Sawyer.
By November 22, 1971, the weather turned cold and Re-
spondent phased out the winch operators including Boge-
ma. About April 15 the Company began recalling its
employees but Bogema was not reemployed. It is not disput-
ed that upon the resumption of work Respondent did recall
and reemploy a large number of men to the job of winch
operator. Since the men were recalled as the result of refer-
rals made through the Union, Bogema made numerous and
persistent efforts to get back on his job through the Union.
When he made no progress at the local level through Sawyer
he visited the Union's main office in Detroit, wrote a letter
to the Union's executive board, and said if he was not
referred to his job he would file unfair labor practice
charges against the Union with the NLRB. Some time later
Sawyer did get him a new job with another contractor on
the same project.
Bogema frequently complained that Jenson was perform-
ing tasks reserved to the men. It is therefore of particular
signifigance that Bryers, the Company's master mechanic
and Bogema's immediate supervisor, testified that on one
occasion when Bryers was riding in a company pickup truck
with Respondent's equipment superintendent, Frasier, Fra-
sier said, "If I've got to lay every man off this job I will not
have Jim Bogema back."
Frasier was produced as a witness by Respondent on
direct examination. He was not interrogated as to the
above-quoted statement. Since he was not questioned by his
counsel with respect to this remark it was not denied and
therefore stands unrefuted on the record. I credit Bryers,
who impressed me as a forthright and truthful witness. I
believe that Frasier did in fact make the statement concern-
ing Bogema attributed to him by Bryers. The complaints
made by Bryers to Frasier and Jenson, among others, en-
compass the regular duties of a union steward. No criticism
was made by the Respondent as to Bogema's performance
on his job. To refuse to recall him without a reason relating
to his work makes it clear that Bogema was in fact penalized
because of the manner in which he performed his union
activities. The record does show that on one occasion the
Company told Sawyer, the union business agent, that it
would not reemploy Bogema because he was a troublemak-
er. Thus it may be said the Respondent equated trouble
making with militancy in pursuing union grievances. This
constitutes illegal interference with activities protected by
the Act.
Contentions of the Parties
Bryers testified that Shipman was lax in enforcing the
contract. He was prone to accept Respondent's assurances
that the matters complained of by the employees would be
corrected and did not pursue such matters with insistence.
MORRISON-KNUDSEN-STRABAG
The General Counsel takes the position that Bogema was
not recalled because he zealously sought to implement the
labor agreement between the parties. Further that Respon-
dent preferred Shipman as union steward because he did
not exert pressure on the Company . It is reasonable to infer
that its supervisors were annoyed by the constant pressure
exerted on them by Bogema.
Respondent argues that if a grievance did exist the con-
tract provides that no strikes, stoppages, or lockouts shall
occur during the processing of any grievances . Respondent
proceeds on the theory that, among other things , Bogema
was causing wobbles and as such he was not engaged in
protected activities and it is principally for this reason that
he was not recalled.
Concluding Findings and Analysis
The record amply supports the fact that in the discharge
of his duties as union steward Bogema was an irritant to the
Respondent . It is equally clear that Shipman was easier for
the Company to live with.
Respondent 's brief seeks to make much of the fact that
it has always enjoyed amicable relations with the Operating
Engineers . It gave Bogema an assignment that would permit
him to visit anyone on the project who had something to
complain about. Further that the burden of proving antiun-
ion motivation in connection with the refusal to rehire
Bogema was on the General Counsel and that he did not
sustain this burden. The Company points out that the com-
plaint did not allege the commission of any independent
8(a)(1) activity. However the totality of the evidence on the
record convinces me that Bogema was not recalled to his job
as punishment for his militant efforts to implement the pro-
visions of the collective -bargaining agreement between the
parties. His efforts in this area were activities protected by
the Act. By discriminating against Bogema for engaging in
protected activities the Respondent violated Section 8(a)(3)
and (1) of the Act. I so find.
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
315
will be recommended that Respondent offer Bogema imme-
diate and full reinstatement to his former or substantially
equivalent job, without prejudice to his seniority or other
rights and privileges, discharging, if necessary, any replace-
ments in order to provide work for him. It will also be
recommended that Respondent make him whole for any
loss of pay that he may have suffered by reason of
Respondent's discrimination against him, by paying him a
sum of money equal to what he normally would have earned
as wages from April 15, 1972, to the date of Respondent's
offer of reinstatement , less his net earnings during said peri-
od. The amount of backpay due shall be computed accord-
ing to Board policy set forth in F. W. Woolworth Company,
90 NLRB 289, with interest on backpay computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716. Payroll and other records in the possession of Respon-
dent are to be made available to the Board or its agent, to
assist in such computation.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Morrison-Knudsen-Strabag, a Joint Venture of Morri-
son-Knudsen Company, Inc., and Strabag Bau, A.G. is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and it will effectuate the policies
of the Act to assert jurisdiction in the premises.
2. Local Union 324, International Union of Operating
Engineers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to recall James Bogema to his job as winch
operator when other winch operators were recalled Respon-
dent engaged in conduct violative of Section 8(a)(3) and (1)
of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record herein, and pursuant to
Section 10(c) of the National Labor Relations Act, I hereby
recommend that there be issued the following:
ORDER2
The unfair labor practices of the Respondent set forth in
section II, above , occurring in connection with its opera-
tions set forth above , have a close , intimate and substantial
relation to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
IV THE REMEDY
Respondent, Morrison-Knudsen-Strabag Company, Inc.,
and Strabag Bau, A.G., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, Local Union
No. 324, International Union of Operating Engineers,
AFL-CIO, or any other labor organization, and discourag-
ing activities by suspending or refusing to rehire employees
or otherwise discriminating against employees in any man-
It having been found that Respondent has engaged in
conduct violative of Section 8(a)(3) and (1) of the Act, it will
be recommended that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As Respondent unlawfully refused to rehire Bogema it
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, 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
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner with respect to their tenure of employment or any terms
or conditions of employment.
(b) Discriminating against union stewards for seeking to
represent employees and processing their grievances or sub-
jecting such stewards to disciplinary action.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer James Bogema immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed
by him, and make him whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payments records, timecards, per-
sonnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its operations in Ludington, Michigan, copies
of the attached notice marked "Apendix." s Copies of the
notice on forms provided by the Regional Director for Re-
gion 7, after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
J 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 the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage activities of union represent-
atives by suspending or refusing to rehire employees or
otherwise discriminate against employees in any man-
ner with respect to their tenure of employment or any
terms or conditions of employment.
WE WILL NOT discriminate against union stewards for
seeking to represent employees and processing griev-
ances or subjecting such stewards to disciplinary ac-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of
rights under Section 7 of the Act.
WE WILL offer James Bogema immediate and full re-
instatement to his former job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed by him and make him whole for the
pay he lost with interest at 6 percent.
MORRISON-KNUDSEN-STRABAG, A
JOINT VENTURE OF MORRISON-
KNUDSEN COMPANY, INC, AND
STRABAG BAU, A.G.
(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 be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan 48226, Telephone
313-226-3210.