Stearns-Roger, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 1973

203 N.L.R.B. 250 (N.L.R.B. 1973)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stearns-Roger, Incorporated and Lawrence W. Fox.
Case 28-CA-2737
April 26, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 21, 1973, Administrative Law Judge
Maurice Alexandre issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief and
counsel for Respondent filed an answering brief to
counsel for the General Counsel's exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
i The counsel for the General Counsel has excepted to certain credibility
findings made by the Administrative Law Judge It is the Board 's established
policy not to overrule an Administrative Law Judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products.
inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We have carefully examined
the record and find no basis for reversing his findings.
DECISION
MAURICE ALEXANDRE, Administrative Law Judge: This
case was tried before me in Tucson, Arizona, on January 3,
1973, upon a complaint issued on November 17, 1972,'
alleging that Respondent had violated Section 8(a)(3) and
(1) of the Act by discharging Fox, the Charging Party. In
its answer , Respondent admitted the discharge , denied that
it was motivated by unlawful considerations , and alleged
that Fox was terminated by reason of a reduction in force,
is eligible for reemployment, but has not been referred and
has not applied for employment.
Upon the entire record2 my observation of the witnesses,
and the briefs filed by the General Counsel and by the
Respondent, I make the following:
i Based upon a charge filed on October I I, 1972, by Lawrence W Fox
2 The General Counsel 's unopposed motion to correct the transcript of the
record is granted
FINDINGS AND CONCLUSIONS 3
1 THE ALLEGED UNFAIR LABOR PRACTICES
Sequence of Events
Respondent is a Colorado corporation engaged in the
general construction business with its principal place of
business in Denver . It also maintains an office and place of
business in Ajo, Arizona , where it has been engaged in the
construction of a pollution control system and related facili-
ties.
On or about March 20, 1972,1 Local 741 (hereafter called
the Union) dispatched Fox to Respondent's Ado facility and
he was hired as a pipefitter . Fox was not a member of the
Union or any other Pipefitters local, and he had been dis-
patched as a so-called "permit man" from the Union's "C"
dispatch list. According to Fox, he accepted the job because
no one else wanted to go to Ajo.5 Fox was assigned to work
with the crew in the fabrication shop , which was supervised
by Foreman Eggert . Eggert and Fox testified that so far as
they knew Fox was the only "permit man" in the fabrication
crew , and that this fact was "common knowledge" among
the employees in the crew because they discussed their
union status with each other .6 Piping Superintendent Dal-
ton testified that, although Fox' s nonunion status might be
common knowledge among the employees , he had not
known of such status, and that Respondent 's supervisors
have no way of knowing the union status of the employees.
However, it is undisputed that Fox told Brown, a former
general foreman ,7 that he was not a member of the Pipefit-
ters Union.8
On September 6, Superintendent Dalton told Brown that
there were too many employees standing around talking,
that the crews were too large and spread out, and that he
wanted the work force reduced to a level which could be
supervised more efficiently by the foremen. At the time,
Brown had three crews , including the fabrication shop. On
September 7, Brown consulted each of his three foremen,
including Foreman Eggert, explained that there would be a
reduction in force, and asked them whether they had any
employees who were not doing thejob they were paid to do.
Eggert 's reply was that he was satisfied with his crew. At the
time, Eggert 's crew consisted of nine employees : four weld-
ers and five pipefitters . However , one of the pipefitters,
l No issue of commerce is presented The complaint alleges and the answer
admits facts which , I find, establish that Respondent is an employer engaged
in commerce within the meaning of the Act I further find that Local Union
741, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a
labor organization within the meaning of the Act
4 All dates referred to hereafter relate to 1972 unless otherwise stated
5 Fox testified that he had worked for Respondent once before , i e , on or
about December 5, 1969, but had been discharged after 2-1/2 hours, that
Respondent had asserted that the reason for the discharge was that he was
bending copper with his fingers, and that this was a false statement He
further testified that he was dispatched again about 6 months later, but that
Respondent refused to accept his work order
6 it is not clear whether Fox also testified that, so far as he knew, he was
the only permit man employed in the AJo project , which had about 200
em7ployees.
Brown was no longer in Respondent 's employ at the time of the hearing.
8 Fox had predicted to Brown that he would be laid off for that reason
203 NLRB No. 47
STEARNS-ROGER, INC.
Turnbow,wason sick leave as the result of industrial illness.9
Since each welder was paired with a pipefitter; the fabrica-
tion crew consisted of four working teams . Brown re-
sponded that he planned to lay off Turnbow, a member of
the Union, and that Eggert would thus be left with an eight-
man crew.10 Eggert replied that that would be fine.
Later that day, Brown gave Dalton a list containing the
names of the employees he proposed to lay off. Dalton
examined the list, told Brown that it was not company
policy to lay off an employee who was absent because of
industrial illness , and that someone other than Turnbow
should be laid off. Brown testified that early the next morn-
ing, September 8, he reviewed the list of employees in the
fabrication shop, and that he decided to lay off Fox. He
further testified that in reaching his decision he relied on a
number of considerations: (1) two of the pipefitters were
excellent workmen; (2) a third was the son of Foreman
Eggert; (3) because the latter had removed Fox from diffi-
cult work and had assigned him to work on less demanding
tasks with McGregg, an elderly welder with a bad heart
condition, Brown felt that Eggert lacked confidence in Fox;
and (4) the next employee to be laid off would be a welder
and he intended to let McGregg go.
Brown next obtained from the other two foremen the
names of the employees whom they recommended for lay-
off and turned them over to Andrew, the Union's job stew-
ard, who, according to established procedure, would obtain
the paychecks of those to be laid off. Brown then informed
Fox that he had been selected for layoff." Fox asked why
he was being laid off. There is conflicting testimony regard-
ing Brown's answer. Fox testified that Brown stated that his
layoff had been requested by Andrew, the job steward, and
that Fox expressed disbelief because he and Andrew were
friends. Brown denied the answer attributed to him by Fox.
He testified that he informed Fox that there was a reduction
in force, that his layoff had nothing to do with the fact that
Fox was not a member of the Pipefitters Union,'2 and that
Fox was eligible for rehire if Respondent should need more
men.13
Following his conversation with Brown, Fox told Eggert
about the layoff. Eggert testified that Fox stated that he had
been told by Brown that Job Steward Andrew had request-
ed his layoff. Eggert informed Fox that he would talk to
Brown, sought out Brown, and asked why he had laid off
Fox.14 Again there is conflicting testimony as to what
Brown replied. Eggert testified that Brown stated that he
"had to." Brown testified that he reminded Eggert that he
had asked Eggert to recommend the name of an employee
for layoff, and that when Eggert failed to do so Brown
selected Turnbow; and that he told Eggert that he was
unable to lay off Turnbow, and that since Eggert had not
made any recommendation Brown found it necessary to
9 Meyer, a welder , had been transferred from the fabrication shop to
another crew
10 Brown testified that , although Turnbow was a good pipefitter, he was
on sick leave and therefore not useful to Respondent.
11 Dalton testified that he intended to lay off a total of 16 employees. but
that only 13 were laid off at the Ajo project
12 Brown testified that he made this statement inasmuch as Fox had pre-
dicted that he would be laid off because he was not a member of that Union
13 Fox's termination slip stated that he was eligible for rehire
14 Eggert testified that Job Steward Andrew was present at the time
251
make another selection himself.
About an hour later, while Fox and Eggert were in the
print shack, Brown and Andrew arrived. Fox testified that
he asked Brown to disclose who had requested his layoff;
that Brown replied that he could not and would not tell him;
that Brown then gave termination slips and final checks to
both Fox and Eggert;15 that Andrew and Eggert then left
and Fox again asked Brown why he had been laid off; that
Brown replied that it had been pointed out to Superinten-
dent Dalton that "it was a shame that a permit man could
be working and a card man had to go down the road";16 that
Fox inquired who had made the request for his layoff; that
Brown refused to tell him; and that Brown added that he
himself could not let Fox stay because he did not have a
book. Eggert testified that, when Fox asked why he had
been laid off, Brown replied, "I know but I won't tell you."
Brown denied telling Fox that he could not retain a permit
man at a time when union members were being laid off. He
testified that Andrew had not requested Fox's layoff, and
that Brown did not talk to Andrew before deciding to lay
off Fox.
11 ANALYSIS AND CONCLUSIONS
The General Counsel contends that Respondent dis-
charged Fox because he was not a member of the Pipefitters
Union. I disagree. In support of his contention, the General
Counsel advances several arguments discussed immediately
below.
1. First, the General Counsel argues that Brown's testi-
mony relating to his conversations with Fox and Eggert was
fragmented and should be rejected, and that the latter two
should be credited. As a dischargee, Fox was an interested
witness. The record establishes that Eggert was also dis-
charged by Respondent and that he filed an unfair labor
practice charge against Respondent.[' On the other hand,
the record shows only that Brown was no longer employed
by Respondent at the time of the hearing. If bias is to be
imputed to any of the three witnesses, Brown should be
regarded as the least interested. Moreover, based upon my
observation of the three, I credit Brown, who gave his testi-
mony in a forthright manner. In contrast, Fox's testimony
appeared to be somewhat evasive at times . In addition,
some of his testimony is implausible. Thus, Fox testified
that when told of his layoff he asked Brown why he had
been laid off, and that Brown answered that the layoff had
been requested by Job Steward Andrew. Fox further testi-
fied that, after receiving his termination slip and after Eg-
gert and Andrew left, he again asked Brown who had
requested his layoff, and that Brown refused to tell him, but
added that he himself could not permit him to be employed
because he was not a member of the Pipefitters Union.
Assuming, arguendo, that Andrew had requested the layoff
and that Brown had so informed Fox earlier in the day,
Is Eggert's slip gave inability to get along with the men as the reason for
his termination. Brown testified that he had decided on the night of Septem-
ber 7 to let Eggert go
16 Fox testified that a card man, also known as a book man , is a member
of a Pipefitters local
7 The General Counsel represented that the charge had been dismissed by
the Regional Office on the ground that Eggert was a supervisor, and that this
determination had been appealed
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there appears to be no reason why Brown should have been
unwilling to repeat the statement. Such unwillingness might
be understandable if Andrew were present during the con-
versation. But the record shows that Andrew had left. As-
suming further that Brown did refuse to disclose who had
asked for the layoff, there was no reason for him to impli-
cate himself by adding that he could not retain a nonunion
employee while laying off union men. On the other hand,
if Andrew did not request the layoff, there was no reason
why Brown should have objected to Fox's nonunion status.
I credit Brown's testimony that Andrew did not request the
layoff of Fox and that Brown did not talk to Andrew before
deciding upon the layoff.
2. A further defect in the General Counsel's case is that
he offers no plausible explanation for the fact that Brown
first selected Turnbow, a member of the Union, for layoff.
If Brown had in fact felt that nonunion employees should
be laid off before union members, he would in the first
instance have selected Fox, whose nonunion status was
known to Brown. Yet Brown selected Turnbow. The Gener-
al Counsel's brief implies that Dalton was the villain, point-
ing to the fact that Fox was selected after Brown talked to
Dalton, and to Fox's testimony relating to Brown's state-
ment that someone told Dalton that it was a shame to retain
a nonunion man when union men were being laid off. There
is not one iota of evidence to show that it was Dalton who
selected Fox for layoff or that he even knew that Fox was
not a member of the Pipefitters Union. Both Dalton and
Brown credibly testified that Dalton gave no instructions to
lay off any particular employees, and that Brown made the
selection of Fox. Dalton further testified credibly that he
was not aware of Fox's nonunion status. I find that Dalton
was not involved in the selection of Fox for layoff, and that
it was Brown who made the decision.
3. The General Counsel further argues that Dalton did
not order Brown to lay off a specified number of employees,
but merely instructed him to reduce the size of the crews to
manageable levels; that Respondent has presented no evi-
dence to establish that Eggert was unable to manage his
crew; that the record shows that Fox was a good worker;
that Brown thus incorrectly concluded that Fox was less
skilled than other pipefitters in the fabrication crew; and
that there was no reason to select Fox for layoff even if
Respondent wished to eliminate employees who failed to
work diligently. The question is not whether Eggert could
in fact manage his crew, or whether Brown was correct in
concluding that Fox was less skilled than other pipefitters
in the fabrication crew. Rather, the question is whether or
not Brown in good faith believed that he should reduce the
crew by one employee in order to carry out Dalton's instruc-
tions, and whether or not Brown in good faith believed that
Fox was less skilled than other pipefitters and, therefore, the
logical candidate for layoff. I find that Brown entertained
such beliefs and acted in good faith.
4. The General Counsel next points out that Brown did
not advise, or consult with, Eggert regarding the selection
of Fox for layoff. Under other circumstances, this might be
a factor tending to suggest an unlawful motive on the part
of Brown. But here, the record shows that Brown did con-
sult Eggert initially, that the latter failed to recommend
anyone for layoff, and that it was Brown who selected Turn-
bow for layoff. The record further shows that Brown had
decided to lay off Eggert before selecting Fox in place of
Turnbow. In such circumstances, the fact that it did not
occur to Brown to consult Eggert is quite understandable.
5. Finally, the General Counsel relies on the asserted fact
that Fox was the only employee in the fabrication crew who
was not a member of the Pipefitters Union, thereby suggest-
ing invidious treatment of Fox. The record is insufficient to
establish such a fact. Eggert and Fox both testified that the
latter was the only permit man in the fabrication crew so far
as they knew. They further testified that this information was
"common knowledge" among the employees in the crew
because they discussed their union status with each other.
There is no evidence, however, that Respondent's supervi-
sory personnel knew the union status of all the employees
in the fabrication crew. On the contrary, Superintendent
Dalton testified that management has no way of knowing
such status. Although the record establishes that Brown was
aware of Fox's nonunion status because Fox had disclosed
it to him, there is nothing to show that he knew the union
status of the others in the fabrication crew.
It follows, and I find, that the record fails to establish that
in selecting Fox for layoff, Respondent was motivated by
the fact that he was not a member of the Pipefitters Union,
and thus fails to establish that Respondent violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in activities af-
fecting commerce within the meaning of the Act.
2. The allegations of the complaint that Respondent en-
gaged in unfair labor practices have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.18
18 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 he deemed
waived for all purposes