Senna Service, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1972

199 N.L.R.B. 1191 (N.L.R.B. 1972)

SENNA SERVICE, INC. 1191
Senna Service, Inc. and James C. Huffman . Case 19-
CA-5598
October 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 28, 1972, Administrative Law Judge '
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in opposition thereto.
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Senna Service, Inc., its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
held on April 4 and 5, 1972, in Spokane, Washington. Briefs
were filed by Respondent and the General Counsel.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consideration
of the briefs filed, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The General Counsel alleged and the Respondent's
answer admitted that Senna Services, Inc. (Respondent), a
Washington corporation with offices in Spokane, Washing-
ton, has, during the past 12 months while engaging as a
mechanical contractor, rendered services the value of which
exceeds $500,000, and has purchased goods valued in excess
of $50,000 from local firms which in turn had purchased
these goods from suppliers located outside the State of
Washington. I find that Respondent is, and at all times
material herein, has been an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The General Counsel alleged and at the hearing the
Respondent stipulated , and I now find that the following
named labor organizations are labor organizations within
the meaning of Section 2(5) of the Act : United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada , Plumbers
Local No. 44, AFL-CIO (herein called the Plumbers); Lo-
cal 238 , Laborers International Union of North America,
AFL-CIO (herein called the Laborers); and Local 313
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein called the Carpenters).
III THE UNFAIR LABOR PRACTICES
i The title of "real Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Trial Examiner: The charge herein
was filed by James C. Huffman on January 12, 1972. Com-
plaint issued March 8, 1972, alleging that on or about De-
cember 16, 1972, Senna Service, Inc. (Respondent)
discharged James Huffman in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C., Sec. 151, et seq., hereinafter called the Act. The
answer denies the commission of any unfair labor practice
and pleads in the nature of an affirmative defense that Mr.
Huffman's conduct was part of an overall conspiracy by the
Spokane Building and Construction Trades Council, its in-
dividual affiliated local unions, its officers, and officers of
Local 44 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO. The hearing was
A. The Issue
The issue is whether or not James Huffman was in-
volved in protected concerted activity when he failed to
report to work for the period of November 19 through De-
cember 16, and whether or not Respondent violated Section
8(a)(1) and (3) of the Act when it discharged him on Decem-
ber 16, 1971.'
B. The Facts
The essential facts in this case are not in dispute. James
Huffman was employed as a pipefitter-welder by Respon-
dent on November 16, having been referred to the job by
Plumbers Local 44.2 Respondent is one of three contractors
involved in performing certain remodeling work on Troy
Hall for Washington State University. Each of the three
All dates hereinafter are 1971 unless otherwise indicated.
At the hearing the Trial Examiner was requested to take judicial notice
of Case 19-CB-1532, 195 NLRB No. 27, issued January 31, 1972, wherein
the Board found, inter aha, that there was no contractual labor-management
relationship between Senna Service, Inc., and the Plumbers
199 NLRB No. 183
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors had direct contracts with the University for a
certain portion or type of remodeling work that was to be
performed. Respondent's remodeling functions consisted of
the demolition and replacement of certain heating and ven-
tilation equipment.
There were only two employees working for Respon-
dent on the job herein involved-the other employee be-
sides Mr. Huffman being a working foreman named John
Taylor, also a member of the Plumbers.3 Work progressed
normally on November 16 and 17, but on the 18th at about
2:30 p.m., Huffman observed a picket line in front of the
north entrance to Troy Hall. This was made known to John
Taylor and the two men decided to contact their Union to
ascertain if the picket line had been-sanctioned by the Build-
ing Trades Council. Upon learning that the picketing had
the approval of the Trades Council, the two men took steps
to finish the day's work and to leave the job and the equip-
ment reasonably secure. Thereafter Huffman refused to re-
port for work until the picketing had ended. In response to
a direct question why he had not reported for work, Huff-
man responded, "Well, I have been, had a Plumbers and
Steamfitters' card for better than 26 years, and I believe in
the Union, otherwise I wouldn't have a card, and as long as
there is a picket, legal picket line up on the job, there is no
way that I can cross it."
During the period of the picketing, Gene Senna, presi-
dent of Respondent, made several attempts to get Huffman
to return to work. Huffman consistently refused to work
and told Senna as indicated in his testimony quoted above
that he would not work behind the picket line. On Novem-
ber 29, Senna wired Local 44 of the Plumbers requesting a
directive from the Union for the employees' immediate re-
turn to work. Frank Forest, the business manager of Local
44 of the Plumbers, responded by telegram on November 30
to the effect that the men could return to work any time they
chose to do so. Senna sought to use Forest's telegram to
persuade Huffman to return to work, but to no avail.
Sometime in the very early afternoon of December 16,
the pickets were removed, and Jim Jackson of the Carpen-
ters-one of the two picketing unions-called and advised
James Dick, a business representative for Plumbers' Local
44, of the fact that the picket had been removed. Following
receipt of this information, James Dick called Gene Senna
to advise him, "We had the picket off the job." Apparently
the choice of words irritated Senna because he reportedly
answered, "What do you mean we have the picket off-I got
the picket off myself." In this conversation Dick asked if
Senna wanted him to call Huffman and get him back to
work. This also seemed to have irritated Senna, and heated
words were exchanged concerning whom Huffman was
working for, Senna finally saying to Dick, "Mr. Huffman
wasn't going back to work." A day or two after December
16, Mr. Huffman received a notice in the mail dated Decem-
ber 16 and signed by Gene Senna, indicating that Huffman
3 John Taylor, the working foreman for Senna Services, Inc, is not a party
to this proceeding . While he refused to work on the Troy Hall jobsite after
November 18, he apparently remained as an employee of Respondent for a
short while, and performed 3 days' work at another jobsite for the Respon-
dent the latter part of November , but then advised Gene Senna on December
2 that he was quitting and he wanted Senna to stop "trying to convince me
that I should work behind a picket line for him."
was terminated and was not eligible for rehire. Reason:
"Repeated requests to return to work ignored." (G.C. Exh.
4) When asked at the hearing why he had terminated Mr.
Huffman, Senna responded, "Well, it is on the termination
slip and the reason for it is because he wouldn't go to work
when I asked him to go to work and I had to have perform-
ance under my contract, and he would not go back to work
and so I had to let him go."
In response to a written request from Gene Senna, the
Plumbers referred Charles Banson to the Respondent's job
at Troy Hall, as a foreman, in mid-December. (G.C. Exh.
12) Two men, Joe Hutchins, a fitter, and J.R. Morgan, a
welder, were referred to the job by the Plumbers on January
4, 1972.
C. Collateral Facts and Information °
The laborers and carpenters began picketing the Con-
struction Development Corporation, one of the three con-
tractors performing remodeling services at the Troy Hall
jobsite, on November 18 in an effort to obtain a collective-
bargaining agreement. (This was admitted in Respondent's
answer.) The picketing had no real impact on the employees
of Construction Development Corporation and their work
continued, but as set forth above, the two employees of
Respondent refused to work behind the picket line. The
refusal of Respondent's employees to work behind the pick-
et line presented a serious problem for Respondent. There
was testimony that Respondent's contract with the Wash-
ington State University included a $100-a-day penalty
clause in case of late completion and also set forth certain
required performance standards.5 In regard to the perfor-
mance standards there was evidence presented in which
Respondent attempted to show that the Plumbers acted
discriminatorily toward Respondent vis-a-vis other contrac-
tors because of their refusal to provide workers for what
Respondent contended was an emergency situation. Not
only was the evidence inadequate to prove an emergency
situation, there was no evidence adduced as a basis for
comparing the conduct in the instant case with other "emer-
gency" requests; it is of doubtful relevance to the issues
raised by the pleadings herein; and in the Trial Examiner's
opinion would not have constituted a valid defense to the
allegations in the complaint even if proven.
In an effort to get Huffman (and Taylor) back to work
there was evidence that Respondent made an abortive effort
to establish a separate and exclusive entrance for
Respondent's employees. On December 2 a sign was placed
near the north door to Troy Hall which read as follows:
The above related facts are not in dispute and are sufficient , in the Trial
Examiner's opinion , to satisfactorily and completely dispose of the legal
issues presented in this case . However, because the Respondent was not
represented by an attorney, a substantial amount of evidence and testimony
was heard which is of doubtful relevance or materiality to the case. The
General Counsel was abundantly considerate and lenient-and I sincerely
trust the Trial Examiner was likewise-in allowing the Respondent to present
his evidence and have his day in court. This related matter is in the record
and is deserving of comment and disposition.
S There was no additional evidence received, or any argument made, that
Huffman was terminated to permit immediate replacement in order to pre-
serve the efficient operation of the business , following Redwing Carriers, Inc.,
137 NLRB 1545, affd. 325 F 2d 1011, cert. denied 377 U S 905. The timing
of the discharge and the hiring of a replacement would not have supported
such a defense had it been advanced.
SENNA SERVICE, INC. 1193
EMPLOYEES ENTRANCE
MECHANICAL WORK INSTALLED BY
SENNA SERVICE, INC.
AIR CONDITIONING VENTILATING
SPOKANE, WASHINGTON KE. 4-0415
The sign was not permanently affixed to the entrance;
the language on the sign is inadequate to establish an en-
trance reserved exclusively for Respondent's employees;
there was no evidence to indicate the unions involved were
ever notified of the establishment of a separate gate; and in
addition testimony clearly established that employees other
than Respondent's employees continued to use the entrance
after the date the sign was supposedly placed near the en-
trance door on the brick ledge of Troy Hall. The require-
ments for the establishment of an exclusive entrance for
Senna employees which, if accomplished, might have taint-
ed the continued picketing in the same manner by the car-
penters and laborers and thereby might possibly have
affected the legal propriety of Huffman's right to remain
away from the job were never met .6 Having pleaded an
affirmative defense, the burden of proof rested with Re-
spondent. Proof of illegal picketing was totally lacking.
The Respondent's pleading was couched in terms of a
conspiracy on the part of the involved unions against Senna
Services, Inc. At the hearing Mr. Morris was questioned
prior to the receipt of evidence as to the theory of
Respondent's defense, and he indicated that it was
Respondent's position that because "Senna Service, Inc.
was not a subcontractor and did not have contractual rela-
tionship with Construction Development Corporation that
the picket line when applied to Respondent was illegal."
Not only is the reason fallacious, but the affirmative defense
of illegal picketing is inconsistent with Respondent's con-
currence or admission to paragraph 7 of the General
Counsel's complaint which alleges a legal objective for the
picketing.
Based on all the evidence including the pleadings, I
find that James Huffman remained away from work for the
period from November 19 through December 16 because of
his sympathy with and support for the actions of the Car-
penters and Laborers Unions who were picketing Construc-
tion Development Corporation to obtain a contract.
D. Concluding Findings
It is undisputed that Huffman withheld his services
from Respondent because of his loyalty to the union cause.
It is also crystal clear that he was discharged because he
6 See International Union of Electrical Workers Local 761 [General Electric]
v. N L R.B, 366 U.S. 667, and 123 NLRB 1547, wherein the establishment
of an exclusive gate is discussed.
For a discussion of unprotected concerted activities see The Developing
Labor Law, a publication by the labor law section of the American Bar
Association, Charles J. Moms, editor-in-chief, a 1970 publication by the
Bureau of National Affairs, Inc., at pp . 124-127. Cf. also Claremont Poly-
withheld his services during the period of the picketing. The
evidence amply supports a finding that two employees,
Morgan and Hutchins, with skills similar to those possessed
by Huffman, performed services for Respondent at Troy
Hall subsequent to the discharge of Huffman. It is a well-
settled rule of law that an employee is engaged in the exer-
cise of protected concerted activity within the meaning of
Section 7 of the Act when he withholds his services by the
refusal to cross a picket line. An employer violates Section
8(a)(1) of the Act when he discharges an employee, under
the facts of this case, because said employee has exercised
his Section 7 rights. See Lenkurt, Electric Co., Inc., 177
NLRB 259, and the many cases cited therein. I find it un-
necessary to decide whether Respondent's conduct was also
a violation of Section 8(a)(3) of the Act as such a further
finding would not affect the remedy.
CONCLUSIONS OF LAW
1. By discharging James Huffman because he engaged
in protected concerted activity by assisting a labor organiza-
tion, Respondent has interfered with, restrained, and
coerced Huffman in the exercise of his rights guaranteed by
Section 7 of the Act, and has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
2. 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 has engaged in unfair
labor practices, I shall recommend that Respondent cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act. Respondent
will be required to offer James Huffman reinstatement to
his old job or, if the job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, dismissing, if necessary, anyone
who may have been hired as a replacement, and to make
him whole for any loss of earnings he may have suffered by
reason of his unlawful discharge. Since Huffman would not
have returned to work prior to the cessation of the picketing
on December 16, which was the same date on which he was
discharged, Respondent will only be required to make him
whole beginning December 17 until offered reinstatement,
or until such time as the construction project would normal-
ly have been completed or until the need for his services
were logically concluded, less his net earnings for this period
of time. The backpay shall be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and shall include an allowance for
interest at the rate of 6 percent per annum to be computed
in the manner set forth by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
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:
chemical Corporation, 196 NLRB No. 75, wherein the discharge of 8(b)(7XB)
pickets was found not to be violative of the Act.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER?
The Respondent, Senna Service, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any employee
because he has assisted a labor organization by refusing to
cross a lawful picket line at his place of work.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to James C. Huffman immediate and full
reinstatement to his former job or, if this job is no longer
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered by reason of
the unlawful discharge, in the manner set forth in the sec-
tion of this Decision entitled, "The Remedy."
(b) Notify James C. Huffman if he is presently in the
Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
and other records helpful to analyze and determine the
amount of backpay due under the terms of this recom-
mended Order.
(d) Post at its place of business in Spokane, Washing-
ton, and mail to all local unions from whom Respondent
normally requests or obtains employees, copies of the at-
tached notice marked "Appendix."8 Copies of said notice,
on forms to be provided by the Regional Director for Re-
gion 19 of the Board, shall, after being signed by an author-
ized representative of Respondent, be posted immediately
upon receipt thereof and maintained by it for 60 consecutive
days thereafter, in conspicuous places, where notices to em-
ployees are customarily posted. Respondent shall take rea-
sonable steps to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply herewith.9
r In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 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.
8 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
9In 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 the 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 discharge or refuse to reinstate any
employee for refusing to cross a picket line to come to
work during a lawful strike at our jobsite.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employee in the exercise
of his right, guaranteed under the National Labor Re-
lations Act, to assist a labor organization.
WE WILL offer to James C. Huffman immediate
and full reinstatement to his former job or, if this job
no longer exists, to a substantially equivalent position,
without prejudice to any seniority to other rights and
privileges previously enjoyed by him, and make him
whole for any loss of pay which he may have suffered
by reason of his discharge.
SENNA SERVICE, INC
(Employer)
Dated By
(Representative) (Title)
We will notify immediately James C. Huffman, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and Service
Act.
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, Tenth Floor, Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-5692.