Stresscon Corp.

National Labor Relations Board - Board Decisions

Jun 25, 1971

191 N.L.R.B. 598 (N.L.R.B. 1971)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stresscon Corporation and International Union of Op-
erating Engineers , Local No. 9, AFL-CIO. Case 27-
CA-3002
Upon the entire record' and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
June 25, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On February 10, 1971, Trial Examiner Herman Cor-
enman issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in any unfair labor practices and recommending that
the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Decision
and a supporting brief, and the Respondent filed cross-
exceptions and a brief in support of its cross-exceptions
and in answer to 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, the cross-
exceptions and 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 Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: This case was
heard at Colorado Springs, Colorado, on December 3 and 4,
1970. The complaint, as amended, issued September 25, 1970,
based on an amended charge filed July 27, 1970, alleges that
the Respondent violated Section 8(a)(1) and (3) of the Act by
discharging two named employees because they engaged in
activities on behalf of International Union of Operating Engi-
neers, Local No. 9, AFL-CIO, the Charging Party, and to
encourage membership in Laborers' International Union of
North America, Local Union No. 578, and/or in the enforce-
ment of an illegal union-security clause. Respondent's answer
denied the alleged violation. Briefs filed by counsel for the
General Counsel and the Respondent have been carefully
considered.
1. THE BUSINESS OF THE RESPONDENT
It is established by the pleadings, and I find, that at all
times material herein the Respondent, Stresscon Corpora-
tion, is a Colorado corporation engaged at Colorado Springs,
Colorado, among other things, in the manufacture of pre-
stress concrete slabs, and in the course and conduct of its
business operations annually produces, sells and ships
products valued in excess of $50,000 to another Colorado
corporation which annually performs services valued in ex-
cess of $50,000 outside' the State of Colorado and which
annually purchases goods and materials valued in excess of
$50,000 which it receives directly from points and places
outside of the State of Colorado.
It is admitted by the pleadings, and I find, that at all times
material herein the Respondent is now, and has been, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
,It is admitted by the pleadings, and I find, that the Charg-
ing Party, International Union of Operating Engineers, Local
No. 9, AFL-CIO, herein called Operators Local 9, or Operat-
ing Engineers Union and the Laborers' International Union
of North America, Local Union No. 578, AFL-CIO, herein
called Laborers Local 578, or Laborers Union are now, and
at all times material herein have been, labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On February 1, 1968, the Respondent entered into a collec-
tive-bargaining agreement with Laborers Local 578, Opera-
tors Local 9 and Carpenters District Council of Southern
Colorado to be effective within the jurisdiction of the afore-
said three labor organizations for a contract term February
1, 1968, through January 31, 1969. The parties to the contract
met in January 1969 to negotiate a renewal agreement. Dur-
ing the negotiations a dispute arose between Donald R. Lo-
gan, the Respondent's president who was negotiating for the
Respondent, and Union Representatives George L. Wolf and
Wayne Miller, Operators Local 9's representatives, concern-
ing Operator Local 9's jurisdiction over employees who
worked in classifications of crane operator, loader operators,
oilers, and batch-plant operators. Logan was willing to con-
cede jurisdiction to Operators Local 9 only over the crane
operator, Joe Aragon, a member of Operators Local 9; Logan
contended that Laborers Local 578 had jurisdiction over all
other production and maintenance employees in the plant.'
Inasmuch as the Operators Local 9's representatives and the
Respondent were unable to resolve their differences concern-
ing the work jurisdiction of the Operators Local 9, the Opera-
tors Local 9's representatives abandoned further meetings
and did not enter into the renewal contract with the Respond-
ent. The Respondent, however, did under date of February
' The Respondent's motion to correct the transcript is unopposed and is
granted
I The Respondent contemplated that at some future time if it installed a
molding department the Carpenters Union would have jurisdiction over the
skilled carpenters in that department. However, the molding shop was never
established, hence there were no employees for the Carpenters Union to
represent
191 NLRB No. 124
STRESSCON CORP. 599
1, 1969, enter into a renewal agreement with Laborers Local
578 and the Carpenters Union for a contract period extending
from February 1, 1969, through June 30, 1970.' It is clear,
and I find, that the contracting parties intended that this
contract between Laborers Local 578 and the Respondent
would cover all of the production and maintenance em-
ployees in the Respondent's plant, and it expressly provided
for rates of pay based on categories of skilled labor, leadmen,
semiskilled plant labor, and trainee. Although Operators Lo-
cal 9 was not a party to this second agreement , and notwith-
standing the fact that the contract contained a union-security
clause, it was understood between the Respondent and the
Laborers Local 578's representatives that Crane Operator Joe
Aragon, who had been a member of Operators Local 9 from
the inception of his employment by the Respondent, would
not be required to join Laborers Local 578 as a condition of
employment. Moreover, notwithstanding the absence of a
contract between the Respondent and Operators Local 9 after
January 31, 1969, the Respondent, as it had in the past,
continued to make payments in behalf of Aragon to Operator
Local 9's health and welfare fund. It was understood between
the Respondent and Laborers Local 578 that the case of Joe
Aragon was an exception to the requirement that all em-
ployees in the plant were required to join the Laborers Local
578.
In April 1970, Operating Engineers Representatives Wolf
and Sandidge again approached Logan concerning their
claim to represent some of the people in the plant. Logan
declined to recognize the Operators Local 9 for any of the
employees except with respect to some form of representation
of Joe Aragon as an individual. Sandidge said he would take
the matter to the National Labor Relations Board. Subse-
quently, on May 5, 1970, Operators Local 9 filed a charge
with the Board alleging that the Respondent violated Section
8(a)(5) of the Act by refusing to bargain with that Union
which claimed to represent "its operating engineer em-
ployees." This charge was withdrawn on May 27, 1970, and
a representative petition in Case 27-RC-3865 was filed by
Operators Local 9 with the Denver Regional Office of the
Board on June 15, 1970, for a unit composed of all crane
operators, oilers, loader operators and batch-plant operators,
comprising three or four employees at the Respondent's
plant, excluding office clerical employees, guards, profes-
sional employees, laborers, carpenters, and supervisors as
defined in the Act. The Respondent, which was the employer
in the aforesaid representation matter, contended at the rep-
resentation hearing that only an overall unit of production
and maintenance employees in the plant was appropriate
because of the integrated nature of its operations and job
interchange. Respondent further contended that its contract
with Laborers Local 578 barred an election. The Regional
Director issued a Decision and Order under date of Septem-
ber 16, 1970, dismissing Operators Local 9's petition. The
Regional Director held that the unit sought was not appropri-
ate, in agreement with the position of the Respondent that the
appropriate unit, because of the integration of operations and
job interchange, was a plantwide unit. The Regional Direc-
tor's decision found it unnecessary to decide the contract-bar
issue. The Board denied Operators Local 9's request to review
the Regional Director's Decision.
On June 30, 1970, the Respondent entered into a third
renewal contract with Laborers Local 578 for a duration of
July 1, 1970, to July 1, 1973. Neither the Carpenters nor the
Operators Local 9 was a party to this third agreement. It was
' As in the first contract, no carpenters were employed; hence the Car-
penters Union represented no one under the second contract, February 1,
1969 through June 30, 1970.
contemplated by the contracting parties that this third con-
tract covered all production and maintenance employees in
the plant, approximately 35 in number, excluding super-
visory, clerical, technical, administrative, and quality control
employees. Similar to the wage classifications in the second
contract, the designated categories were skilled laborers,
leadmen, temporary leadmen, semiskilled plant labor and
beginning labor. All three contracts previously negotiated
and referred to hereinabove contained union-security clauses
which will be discussed in further detail hereafter.
B. Discharge of Fred Dominguez
Fred Dominguez went to work on May 4, 1970, for the
Respondent with the expectation that he would eventually
take over as a full-time crane operator in another yard. Plant
Manager Kenneth Mercer, who interviewed Dominguez on
the Sunday preceding his first day of work, told him he would
have to join Laborers Local 578 and gave Dominguez a book-
let describing the Laborers Local 578 health and welfare plan
which covered the plant employees.4 Dominguez testified that
he signed an authorization card for Operators Local 9 with
Union Representative George Wolf on May 28, 1970.
At the time of Dominguez' hire on May 4, 1970, there was
in effect a collective-bargaining agreement for the duration of
February 1, 1969, through June 30, 1970, to which the Re-
spondent and Laborers Local 578 and Carpenters were par-
ties.5
Article II of the collective-bargaining agreement contained
a union-security provision reading as follows:
UNION SECURITY: All Employees covered by this
Agreement hired after the date of this Agreement, shall,
as a condition of employment become members in good
standing of the Union in accordance with the terms of
the National Labor Relations Act, as amended , within
thirty-one (31) days following the beginning of their em-
ployment and shall remain members of the Union in
good standing in accordance with the terms of the Na-
tional Labor Relations Act, as amended, during the life
of this agreement.
On Friday, June 19, 1970, Laborers Local 578's representa-
tive, Eldon Keller, went to the plant and, according to Do-
minguez' testimony, told him he would have to join the La-
borers Union. Dominguez told Keller he would talk to Mr.
Logan. Keller then went to the office. Dominguez testifies
that later that day Logan called him into the office and told
him he would have to join the Laborers Union or be ter-
minated. Dominguez testified that he told Logan that when
he was hired Plant Manager Mercer did not specify any
union , or about joining the union, or any specific union.
According to Dominguez, Logan said he thought it was made
clear but that he would check. According to Dominguez,
Logan then told him that Keller would be down that after-
noon and that Dominguez would have to join or be ter-
minated. On the following Monday, June 22, Dominguez
testified he was summoned into the office in the presence of
Keller and Logan. Keller had an application card for Do-
minguez to join. Dominguez concedes he told Keller he could
not join and when Keller asked, "Why" Dominguez testified
that he told him, "Because I signed an authorization card to
the Operating Engineers" to which Keller replied, "Well, you
The foregoing finding is based on the credited testimony of Plant
Manager Mercer and Plant Superintendent Willard Hipsher. Dominguez'
testimony concerning the prehire interview on Sunday is somewhat incoher-
ent but nevertheless concedes there was talk about unions
5 As I have stated previously hereinabove, no carpenters were in Re-
spondent's employ Hence there was no one for the Carpenters' Union to
represent.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can join ours too and be in the Operating Engineers." Do-
minguez admits that he told Keller "No." Thereupon, Keller
told him, "I must ask Mr. Logan to terminate you." Logan
gave Dominguez his termination notice at the office on the
morning of June 22, 1970.
The termination notice reads as follows:
Dear Mr. Dominguez:
The Laborer's Local 578 has formally requested that you
join their union in accordance with the terms of the
agreement covering all employees in the plant. Since you
have refused to join their union, we are required to ter-
minate your employment with this firm in accordance
with Article II of our contract with the union.
Very truly yours,
STRESSCON CORPORATION
/s/ Donald R. Logan
Donald R. Logan, President
C. Conclusionary Finding with Respect
to the Discharge of Dominguez
It is now well established and it is superfluous to cite au-
thorities for the proposition that an employer may without
violating the Act, upon the union's demand, discharge any
employee who refuses to become a member of the union as
required by a valid union-security clause. The first proviso of
Section 8(a)(3) of the Act provides:
That nothing in this Act, or in any other statute of the
united States, shall preclude an employer from making
an agreement with a labor organization (not established,
maintained, or assisted by any action defined in Section
8(a) of this Act as an unfair labor practice) to require as
a condition of employment membership therein on or
after the thirtieth day following the beginning of such
employment or the effective date of such agreement,
whichever is later,.. . .
It is undisputed that Dominguez, having started his em-
ployment on May 4, 1970, had been employed for more than
31 days when he was required, on June 22, 1970, to join
Laborers Local 578 or be discharged. Fully aware of the
consequences if he did not join, Dominguez elected not to
join, and he was terminated in accordance with the terms of
the union-security clause in the current collective-bargaining
agreement. I find that Dominguez' discharge was effectuated
pursuant to the terms of a valid union-security clause and was
therefore not violative of the Act.
D. The Discharge of Anthony R. Anderson
Anthony R. Anderson began working at the Respondent's
plant October 26, 1969; quit January 10, 1970; was rehired
February 15, 1970; and was injured on the job and remained
off work on account of his injury until May 19, 1970, when
he returned to work. During his employment, Anderson
worked or a prestress bed, loaded products, and drove the
crane . Anderson testified that he signed an Operators Local
9 authorization card with Operators Union Representative
George Wolf on May 28, 1970.
Laborers Union Representative Keller came to the Re-
spondent's plant on July 20, 1970, to secure Anderson's mem-
bership in the Laborers Local 578.6
Anderson testified that Keller came out to the job on July
20, 1970, and wanted him to sign up in the Laborers Union.
Anderson told Keller he couldn't as he was already with the
6 Logan testified that Keller came in to see him on July 20, 1970, and
referred to the fact that a Tony Anderson had been mentioned in the Board's
Representative Hearing and that he had no record of his having joined the
Union Keller asked permission to go into the plant and talk to Anderson
Operating Engineers Union. Keller replied, according to An-
derson, "No dice - He'd have me run off before the day was
over." About an hour later, Keller returned and handed An-
derson an envelope containing a letter to Logan requesting
that Anderson be terminated.
Laborers Union representative, Keller, reported to Logan
that Anderson had refused to join the Laborers Union for the
stated reason he was a member of the Operating Engineers
Union. Logan then talked to Anderson and explained to him
that the Respondent's contract required that he join the La-
borers Union, and that he would be forced to terminate him
by the Laborers Union if he refused to join that Union. An-
derson then replied to Logan, "Well, I guess you will have to
terminate me then." Logan prepared a termination letter to
Anderson, and Keller left with Logan his formal letter re-
questing Anderson's discharge. Anderson was paid up to the
end of the workday and terminated on July 20, 1970.
Anderson admits, and I find, that he was given the oppor-
tunity on July 20, 1970, to join Laborers Local 578, and that
it was his decision not to join because, as he testified, "I don't
think it would be right to join once I had an authorization
card with the Operating Engineers." I find, and it is not
disputed, that Anderson was put on notice by both Logan and
Keller that his refusal to join Laborers Local 578 would result
in his termination of employment.
E. Conclusionary Finding in re
the Discharge of Anderson
Anderson was discharged on July 20, 1970, when the third
contract between the Respondent and Laborers Local 578
had been in effect only 20 days.7 The union-security clause in
this contract was as follows:
UNION SECURITY: All employees covered by this
Agreement hired after the date of this agreement shall,
as a condition of employment, become members in good
standing of the Union in accordance with the terms of
the National Labor Relations Act, as amended, within
thirty-one (31) days following the beginning of their em-
ployment and shall remain members of the Union in
good standing in accordance with the terms of the Na-
tional Labor Relations Act, as amended, during the life
of this Agreement. The Company agrees to cooperate
with the Business Representative in removing workmen
from employment who are not in good standing in the
Union after their initial thirty-one (31) days described
under this Article.
The General Counsel takes the position that since Ander-
son was hired before the effective date of the third contract,
he was not required by that contract to acquire union mem-
bership as a condition of employment, because as the General
Counsel points out, the union-security clause requires only
employees "hired after the date of this Agreement" to become
union members in good standing within 31 days following the
beginning of their employment.
The Board has met this question in previous cases where
it has held that in back-to-back contracts the union-security
clause should be construed as continuing from agreement to
renewal agreement.
Thus, in Josten Engraving Company, 98 NLRB 49, where
the union-security clause in back-to-back contracts required
employees who had completed a 1-year probationary period
to "make application to and become members of the Union
and shall thereafter maintain their membership in - good
standing ... as a condition of employment," it was con-
The third contract, executed on June 30 , 1970, was effective from July
1, 1970, to July 1, 1973.
STRESSCON CORP. 601
tended by the petitioner in a representation case that the
contract was not a bar to the petition because the union-
security clause violated the Act, as it did not give employees
who had not become union members before the effective date
of the renewal agreement (effective August 4, 1950) the 30-
day grace period required by Section 8(a)(3) of the Act. In
other words, the petitioner argued that although probation-
ary employees had worked for almost 1 year before August
4, 1950, without the necessity of becoming union members,
they must nevertheless be granted the additional 30 days
following the effective date of the renewal contract on August
4, 1950, even though the 1-year probation had been served.
In holding the union-security clause to be valid and the con-
tract a bar to the petition for representation, the Board al-
luded to the Krause case, 97 NLRB 536, where it had been
held that under a union-shop clause, a grace period need not
be accorded to old employees who already were members of
the union on the effective date of the contract.
The Board then posed the question whether employees
who had not served their 1-year probationary period before
the August 4 effective date of the current contract and who,
therefore, had not been required to become and were not
union members before August 4, 1950, were nevertheless
entitled to an additional 30 days after August 4, 1950. In
holding the union-security clause to be valid the Board said:
The only employees covered by the present contract who
possibly were not union members on August 4, 1950, the
date of execution, and were obligated to join the Union
in less than 30 days from August 4, were those who had
been hired a year before, between August and September
4, 1949. But such employees had already been afforded
much more than 30 days before coming under the con-
tractual obligation to join the Union.
A reasonable construction of the statute seems to us
to lead to the conclusion that, under the present circum-
stances, the grace period requirements have been met.
To hold otherwise would afford the employees 12
months' representation for 11 months' dues, and would
thus permit "free riders," the avoidance of which was
clearly intended by the statute (Charles A. Krause Mill-
ing Co., supra).... We shall therefore dismiss the peti-
tion.
In National Lead Company, 106 NLRB 545, where two
employees were discharged under a current renewal contract
for failure to pay dues owing under the expired prior contract,
it appearing further that one of the employees, like Anderson
in the instant case, had never joined the union or paid dues,
although required by that contract to join just as Anderson
was here, the Board held that the union was legally entitled
to demand the two employees' discharge for nonpayment of
dues, and'it rejected the Trial Examiner's holding that "these
employees were in the same position as new , nonmember
employees and therefore entitled to a 30-day grace period."
The Board saw no reason to regard these two employees
differently from any other dues delinquents, and it found no
violation notwithstanding the fact that no grace period was
given these employees.
Commenting on the construction of back-to-back con-
tracts, the Board said as follows:
The union-security arrangement in the second contract
was, essentially, a mere renewal of the provisions in the
first one. Moreover, there was no time lapse between the
terms of the two successive agreements . with regard to
union security, therefore, there was unmarred continuity
from September 1951, to the time of their discharge. To
this extent at least, the second contract was, in effect, a
continuation of the previous contract, rather than a com-
pletely new bargaining agreement. To find that these
employees are relieved from the payment of dues owing
at the conclusion of the first in a series of uninterrupted
contract terms would, we believe, place undue emphasis
upon the form of the contractual arrangement. The
Board in a number of cases, particularly with reference
to union security clauses, has looked to the substance
rather than the technical form of the contractual rela-
tionship between unions and employers.'
Applying the principles announced by the Board in Josten
Engraving Company, Automobile Workers Union, and Na-
tional Lead Company, as well as the other cases cited, supra,
it is clear that the union-security clauses in the second and
third contracts in question should be construed as having
unmarred continuity, as there was no time lapse between the
second and third contracts, the third contract, effective July
1, 1970, having been executed on June 30, 1970, the expira-
tion date of the second contract. It thus appears that Ander-
son having been rehired in February 1970 during the term of
the second contract expiring June 30, 1970, worked more
than 31 days under that contract and having consumed his
31-day grace period under the second contract expiring June
30, 1970, was not entitled to a new 31-day grace period under
the third contract effective July 1, 1970. Under the General
Counsel's theory, the language of the third contract did not
require Anderson to join the Laborers Union at any time
during the life of the third contract as he had been hired
before the effective date of that contract. This position taken
by the General Counsel would extend to Anderson a 3-year
free ride to July 1, 1973.
I find, therefore, that Anderson's discharge by the Re-
spondent upon Laborers Local 578's request because of his
refusal to become a member of Laborers Local 578 did not
violate the Act.
F. Further Contentions of the
General Counsel
The counsel for the General Counsel also contends that the
real motive for the discharge of both Dominguez and Ander-
son was their support of the Operating Engineers. This con-
tention is not supported by the evidence. The evidence shows
that neither Laborers Local 578 representative Keller nor
Logan was aware of Dominguez' or Anderson's membership
in the Operating Engineers Union until the demand by Keller
that they join Laborers Local 578.
It is significant that when Dominguez on June 22, 1970, in
the presence of both Keller and Logan, admittedly refused to
join the Laborers Union because as he stated to them he had
already signed an authorization card with the Operating En-
gineers Union, Dominguez admits he was told by Keller,
"Well, you can join ours too and be in the Operating Engi-
neers." but Dominguez still refused to join the Laborers
Union. From this remark by Keller to Dominguez that he
could belong to both unions, it is not unreasonable to con-
clude that Dominguez' affiliation with the Operating Engi-
neers Union was of no moment to Keller, but he was insisting
that Dominguez ' contractual obligation to pay union dues to
the Laborers Union be enforced.
It is clear, and I find, that the Respondent's motive in
discharging Dominguez and Anderson was to comply with its
contractual obligation under the union-security clause of its
contract with the Laborers Union, and for no other reason.
8 See also Automobile Workers Union (John I. Paulding, Inc.), 142
NLRB 296, Sylvania Electric Products, Inc., 100 NLRB 357; Weyerhaeuser
Co., 142 NLRB 702; Whyte Manufacturing Company, Inc., 109 NLRB
1125.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel also contends that the
union-security clause was illegal because the contractual unit
was inappropriate. I have already found that the contractual
unit was intended to be a plantwide unit . The special consid-
eration granted to crane operator Joe Aragon at the request
of Logan, who wanted to retain Aragon in Respondent's
employ without compelling him to join the Laborers Union,
is no minor a deviation from the norm as not to taint the
contract with illegality. See, for example, Ask Market and
Gasoline, 130 NLRB 641 and cases cited therein at footnote
3 on page 643. Additionally, "it is a well established legal
doctrine that contracts should be construed as lawful when-
ever possible." Whyte Manufacturing Company, Inc., 109
NLRB 1125, 1127. See also N.L.R.B. v. Rockaway News
Supply Company, Inc., 345 U.S. 71, where the Supreme Court
said that collective-bargaining agreements are not to be too
strictly or technically construed. Contrary to the General
Counsel contention, I find that the last two renewal contracts
were valid and the union-security clauses therein contained
were likewise valid.
On the basis of the foregoing findings, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Stresscon Corporation, is, and has been at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Laborers Local 578 and Operators Local 9 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By discharging from its employment Fred Dominguez
and Anthony R. Anderson, Respondent has not engaged in
any unfair labor practice within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions
of law, and the entire record in this proceeding, I recommend
that the Board enter an order dismissing the complaint in its
entirety.