Sullivan Transfer Co.

National Labor Relations Board - Board Decisions

Feb 4, 1980

247 N.L.R.B. 772 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sullivan Transfer Co. and International Union of
Operating Engineers, AFL-CIO, Local 714. Case
16-CA-8321
February 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 25, 1979, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Sulli-
van Transfer Co., Dallas, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Insert the following as paragraph 2(d) and
reletter the subsequent paragraphs accordingly:
"(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent also has filed a motion to consolidate the instant case with
Case 16-CD-129. It contends that the alleged violation of Sec. 8(a)(3) of the
Act in the instant case arose directly out of the jurisdictional dispute in Case
16-CD-129. International Union of Operating Engineers, AFL-CIO, Local
714. the Charging Party in the instant case, and Teamsters Local 745,
Respondent in Case 16-CD-129, both have filed opposition to Respondent's
motion. The General Counsel has also filed opposition to Respondent's
motion.
247 NLRB No. 117
We find that consolidation at this point would not effectuate the purposes
of the Act. Thus, we note that there is no evidence in the instant case that
there was reasonable cause to believe that a violation of Sec. 8(bX)(4)(D) has
occurred before Respondent engaged in the conduct that gave rise to the
instant proceeding. Furthermore, we note that two separate hearings have
already been held, and that the 10(k) proceeding was already pending before
the Board when the Administrative Law Judge issued her Decision in the
instant case. Accordingly, we shall deny the motion to consolidate.
For the purposes of this Decision, Member Penello finds it unnecessary to
to determine whether an acute, bona fide jurisdictional dispute existed herein.
For the reasons set forth in his and Member Kennedy's dissent in Brady-
Hamilton Stevedore Company. 198 NLRB 147 (1972), he would reach the
same result found herein without reference to the existence of a jurisdictional
dispute.
'See Hickmor Foods, Inc., 242 NLRB 1357 (1979).
In her recommended Order, the Administrative Law Judge inadvertently
omitted the requirement that Respondent make certain records available to
the Board in order to complete backpay. We shall modify the recommended
Order to provide this requirement.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives all employees these rights:
To act together for collective bargaining or
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all of these things.
WE WILL NOT discriminate against employees
by reducing their hours worked or by construc-
tively discharging them in retaliation for the
attempts of their collective-bargaining representa-
tive to enforce the provisions of their collective-
bargaining agreement.
WE WILL NOT tell employees that they cannot
remain in our employ without a significant
reduction in the number of hours worked if they
continue to be represented by International
Union of Operating Engineers, AFL-CIO, Local
714.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer James Harper immediate and
full reinstatement to his former position or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights.
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SULLIVAN TRANSFER CO.
WE WILL revert to our former practice of
assigning Ruben Washington and James Harper,
as permanent employees, to both old construction
work and new construction work.
WE WILL make James Harper and Ruben
Washington whole, with interest, for any loss of
earnings they may have suffered as a result of the
discrimination against them.
SULLIVAN TRANSFER CO.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Dallas, Texas, on June 5,
1979. The charge was filed by International Union of
Operating Engineers, AFL-CIO, Local 714, herein called
the Union, and served on Sullivan Transfer Co., herein
called Respondent, on February 9, 1979. The complaint
issued on March 23, 1979, alleging that Respondent has
violated Section 8(aX)(1) and (3) of the National Labor
Relations Act, as amended.
The principal issue herein is whether Respondent limited
the hours of work of employee Ruben O. Washington and
constructively discharged employee James L. Harper be-
cause of their membership in the Union.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
post-trial briefs filed by the General Counsel and Respon-
dent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Texas corporation with an office and
place of business located in Dallas, Texas, where it is
engaged in the moving and hauling of heavy equipment.
During the 12-month period preceding the issuance of the
complaint herein, Respondent, in the course and conduct of
its business operations, purchased and received goods and
materials valued in excess of $50,000 directly from suppliers
located outside the State of Texas.
The complaint alleges, Respondent admits, and I find that
Respondent is, and at all times material herein has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
Il1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the business of hauling, install-
ing, and dismantling heavy equipment at the premises of its
customers. Sometimes this work is performed in existing
buildings, referred to as old construction, and sometimes it is
performed in buildings being constructed or which are being
remodeled in a manner requiring a building permit, referred
to as new construction. It is also engaged in hauling to and
from trade shows and conventions and, as a common carrier,
in the hauling of machine tools and oilfield equipment. The
operations involved herein are the trade shows and the old
and new construction work, which is essentially forklift
work. Eighty to 90 percent of Respondent's business is old
construction.
Ruben Washington began working for Respondent as a
forklift operator in 1964 and James Harper began in 1967. In
1967 the Union, the Ironworkers, and the Teamsters were
recognized by Respondent as the collective-bargaining repre-
sentative of separate units of employees at its Dallas
location. The employees involved herein are those represent-
ed by the Union and the Teamsters Local 745, herein called
the Teamsters. Washington and Harper are the only employ-
ees represented by the Union.
Respondent's longstanding practice has been to disregard
craft lines, assigning one crew to do all of the functions
necessary for any one job assignment. Generally, a crew
would be composed of either all Teamster employees or all
Operating Engineer employees. According to Lawrence
Toomey, Respondent's president, his interpretation of the
collective-bargaining agreements is that new construction
work is to be assigned to the Union and old construction
work to the Teamsters. Apparently, Respondent's practice
was to assign new construction work to the Union but old
construction work was assigned to both the Union and the
Teamsters. Toomey admits that 80 to 90 percent of
Respondent's business is old construction. Harper and
Washington testified, without contradiction, that 85 to 90
percent of their work was on old construction.
In 1976 the Union claimed that Respondent was misas-
signing forklift work to the Teamsters. Following the filing
of jurisdictional dispute charges with the Board, Respon-
dent, the Union, and the Teamsters entered into a tripartite
agreement to submit the dispute to the international unions,
to abide by their resolution of the matter, and in the interim,
that Respondent would continue its present method of
assigning work.
In September 1977 the Teamsters-Operating Engineers
Jurisdictional Committee determined that Respondent was
obligated to abide by the 1969 jurisdictional agreement
between the Teamsters and the Operating Engineers on new
construction work. This agreement, designed to resolve
dispute on construction sites, provides that operation of all
forklifts is the work of Operating Engineers except that work
in warehouse or storage area is recognized as the work of the
Teamsters. It further provides that forklifts operated by the
Teamsters in the warehouse or storage area will not leave the
confines of those areas. Based on the above, the Teamsters
asserted that the Internationals had ruled in its favor and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent was obligated to continue to assign employ-
ees represented by the Teamsters to old construction work.
In early February 1978 the Union delivered to Respon-
dent a document dated February 7, 1978, signed by the
director of the Teamsters' National Division of Building
Materials and Construction Drivers and by the director of
Region 8 of the International Union of Operating Engineers,
which it asserted awarded to the Union the forklift work on
both old and new construction sites. The document reaf-
firmed that the Teamsters and the Operating Engineers are
mutually bound by the 1969 jurisdictional agreement and
that the parties agree that the proper interpretation of the
language of that agreement would mean that Respondent is
obligated to assign all forklift driver work concerning the
renovation or remodeling of existing construction to the
Union. The parties further agreed that included in the
forklift driver work would be the handling of any machinery
to be removed or installed in existing buildings. There is
some disagreement as to whether this interpretation is
binding on the parties to the tripartite agreement. In
September 1978 the jurisdictional dispute charges filed with
the Board against the Union were dismissed by the Regional
Director on the grounds that the International had awarded
the disputed work to the Union. In November 1978,
Respondent's appeal from this dismissal was denied.
Throughout this dispute, its purported resolution and the
dismissal of the jurisdictional dispute charges by the Board,
Respondent continued until January 19, 1979,' to use the
same method of assigning work which it had employed for a
number of years. During this period the record establishes
no conduct by either the Union or the Teamsters other than
the bare assertion that each had received the award of the
disputed work.
B. Facts
On January 19, Respondent received a letter from the
Union, dated January 18, claiming that Respondent was
violating the collective-bargaining agreement by failing to
pay employees the guaranteed wage as provided in article
VIII, section 2-B, of the agreement, which provides for 2
hours showup pay, a 4-hour guarantee if any work is
performed less than 4 hours and an 8-hour guarantee if the
employee works in excess of 4 hours. Respondent admits
that it only paid its Operating Engineers employees for hours
actually worked and that these employees often worked less
than an 8-hour day.2 Toomey's uncontradicted testimony is
that the Union has never filed a grievance alleging the failure
to pay the guaranteed wage.
On January 19 after receiving the letter from the Union,
Toomey informed John Hollowell, Respondent's operations
manager, of the Union's demand that the guaranteed wage
be paid and that he considered this demand to be a unilateral
change of the status quo under the tripartite agreement.
Toomey stated that Respondent was no longer obligated to
abide by the status quo and instructed Hollowell that
henceforth, Respondent's Operating Engineer employees
' All dates hereinafter will be in 1979, unless otherwise indicated.
' The Teamsters were paid on the basis of a 40-hour guaranteed week as
provided in the Teamsters' collective-bargaining agreement. According to
Toomey, Teamster employees were paid SI I an hour in wages and fringe
would only be assigned new construction work and that he
should so inform Harper and Washington.
On January 19,' Hollowell told Harper that Toomey had
instructed him to use the Operating Engineer employees
only on new construction. Harper protested that a restric-
tion to new construction would result in an unacceptable
decrease in earnings. Hollowell admittedly said that if
Harper wanted to change over to the Teamsters or the
Ironworkers, they could discuss continuing to use him on
old construction. Harper said he would have to think about
it because he had too much time in the Union, and he had to
consider his pension plan. On January 20, Harper worked on
a new construction job.
On January 22, Harper asked Toomey for an explanation
of this change in work assignment practice. Toomey said he
had received a letter from the Union demanding that
Respondent pay the 2-4-8 wage guarantee and that Respon-
dent would henceforth assign only new construction work to
Respondent's Operating Engineers employees. Harper said
he would starve if restricted to new construction work.
Toomey said he could recommend Harper as a crane
operator to C & T, a firm that shares Respondent's facilities
and does Respondent's crane work; or if Harper wanted to
switch to the Teamsters Union or the Ironworkers Union, he
could intercede for Harper with these unions, and Harper
could continue to work for Respondent under the jurisdic-
tion of the Teamsters or the Ironworkers. Harper said he
would have to think about it, that he had worked for
Respondent for a number of years, and he wanted to
continue working for Respondent, but he also wanted to
remain an Operating Engineer. He did not want to go into
the Teamsters or the Ironworkers. Toomey admits that he
made it clear that if Harper remained in Respondent's
employ and remained in the Union, he could only work on
new construction.
Following this conversation, Harper worked one 8-hour
day for Respondent. He then telephoned Toomey and told
him he would prefer going to C & T and asked Toomey to
speak to C & T regarding hiring him. Toomey did
recommend Harper to C & T, and about a week later Harper
began work at C & T.
On January 22 and 23, Respondent's dispatcher, James
Northum telephoned Washington and told him there was no
work that day. On January 24, Northum again telephoned
Washington. According to Washington, Northum said
Respondent was not going to use him and Harper anymore,
that Hollowell should have informed Washington of this on
Friday. Northum further said that if Respondent did use
Harper and Washington, it would only be on new construc-
tion. Northum denies saying anything about new or old
construction, or about Hollowell. According to him he only
said that to keep from having to wake Washington up each
benefits and the Operating Engineer employees were paid $11.30 an hour in
wages and fringe benefits.
' Hollowell testified that the conversation was on Monday, January 22.
credit Harper that it was on Friday, January 19.
774
SULLIVAN TRANSFER CO.
morning, that thereafter he would telephone Washington
only if Respondent wanted him to work that day.'
Washington only worked 62 hours during January, 203
hours in February, 174 hours in March, and 64 hours in
April. For the 15 months prior to January, Washington had
never worked less than 128 hours a month and the average
number of hours worked by him a month was 170. At some
point, which is unclear from the record but appears to be in
April, Washington began working for other employers on
dispatch from the Union. At times he was dispatched to, and
worked for, Respondent. At other times, other persons were
dispatched to Respondent.
C. Conclusions
The General Counsel contends that Harper and Washing-
ton were limited to working on only new construction jobs
and Harper was constructively discharged because they were
represented by the Union. Respondent argues that its
conduct was not unlawfully motivated but rather, that its
action was part and parcel of an acute, bona fide jurisdic-
tional dispute which the Board presently is in the process of
resolving.'
It is well established that where the actions of all parties
are part and parcel of an acute, bona fide jurisdictional work
dispute, an employer does not violate Section 8(aX3) of the
Act by choosing one group of employees over another
Brady-Hamilton Stevedore Company, 198 NLRB 147 (1972);
J. L. Allen Co., 199 NLRB 675 (1972); Pipeline Dehydrators,
Inc., 239 NLRB 172 (1978). Thus, the threshold question
here is whether Respondent restricted Harper and Washing-
ton to new construction work and discontinued assigning
them to old construction as a consequence of an acute, bona
fide jurisdictional dispute.
I find that Respondent's conduct was not a consequence
of an acute, bona fide jurisdictional dispute. First, nothing in
the record establishes that as of January 19, the jurisdiction-
al dispute was acute. There is no indication on the record
that either the Teamsters or the Union engaged in any
conduct prohibited by Section 8(bX4XD) of the Act during
the 19-month period between the signing of the tripartite
agreement and January 19.
However, even assuming arguendo that there existed an
acute, bona fide jurisdictional work dispute, I further find
that Respondent's conduct was not a consequence of such
dispute. Throughout the entire period of this dispute,
Respondent steadfastly refused to alter its method of
assigning work and its decision on January 19 to change its
method of assigning work was not motivated by any union
conduct which was part and parcel of a jurisdictional
dispute. Rather, Respondent's conduct was in direct re-
sponse to, and in retaliation for, a union demand that
Respondent adhere to a wage provision of the collective-
bargaining agreement, a provision not concerned with work
jurisdiction.
In so finding, I have fully considered, and reject, Respon-
dent's argument that the Union's demand abrogated the
' Prior thereto, the practice had been that Harper and Washington reported
to work each morning unless they were specifically told that there would be
no work that day.
After the close of the hearing, Respondent renewed its motion that the
tripartite agreement. Nothing in that agreement purported
to deal with wages. I also find unpersuasive Respondent's
argument that the Union's demand suddenly made Respon-
dent's method of work assignment less cost efficient.
Assuming arguendo that such is relevant to the issue herein,
compliance with the demand would mean only that Respon-
dent would have to organize its assignments so that
Washington and Harper actually worked the number of
hours for which Respondent was required to pay them in the
same manner that it was required to organize the assignment
of work to Teamsters employees to avoid paying for hours
not worked under the Teamsters 40-hour week guarantee.
Hence, under the scheme of the Act we are not confronted
with a situation cognizable under the provisions of Section
8(b)(4)(D) and 10(k). Rather, we are confronted with a
traditional 8(aX3);situation. Therefore, the Brady-Hamilton
doctrine is not applicable.
Inasmuch as 85 to 90 percent of Harper's work had been
in old construction and 80 to 90 percent of Respondent's
business is old construction, I find that by its restriction of
Harper to new construction work only, Respondent con-
structively discharged Harper.' I have heretofore found that
Respondent restricted both Harper and Washington to new
construction work only and that such restriction was in
direct response to, and in retaliation for, the demand of their
collective-bargaining representative that Respondent abide
by the wage guarantee provisions of the collective-bargaining
agreement covering Washington and Harper. Accordingly, I
find that Respondent discharged Harper and reduced the
hours worked by Washington in violation of Section 8(aX3)
and (I) of the Act. I further find that Respondent violated
Section 8(a)(1) of the Act by Hollowell's and Toomey's
statement to Harper that he could not remain in Respon-
dent's employ without a significant reduction in the number
of hours worked if he continued to be represented by the
Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By reducing the hours worked by Washington and by
constructively discharging Harper in retaliation for the
Union's demand that Respondent abide by the wage guaran-
tee provisions of the collective-bargaining agreement, Re-
spondent has violated Section 8(aX3) and (1) of the Act.
4. By telling Harper that he could not remain in
Respondent's employ without a significant reduction in the
number of hours worked if he continued to be represented by
the Union, Respondent has interfered with, restrained, and
coerced employees in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
transcript of the Sec. 10(k) hearing in Case 16-CD-129 be received into
evidence. I adhere to my original ruling denying the motion.
The complaint does not allege that Washington was discharged.
Apparently, he has continued to perform some work for Respondent.
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain affirma-
tive action to effectuate the policies of the Act.
It having been found that Respondent constructively
discharged James Harper in violation of Section 8(a)(3) and
(I) of the Act, I shall recommend that Respondent be
ordered to offer him full and immediate reinstatement to his
former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of the discrimination against him. Having also found
that by refusing to assign him to old construction work,
Respondent has reduced the number of hours worked by
Washington, I shall also recommend that Respondent revert
to its former practice of assigning Washington, as a
permanent employee, to both old construction work and new
construction work' and to make him whole for any loss of
earnings he may have suffered as a result of the discrimina-
tion against him. Backpay shall be computed according to
the Board's policy set forth in F W. Woolworth Co., 90
NLRB 289 (1950). Payroll and other records in possession
of Respondent are to be made available to the Board, or its
agents, to assist in such computation. Interest on backpay
shall be computed in accordance with Florida Steel Corpora-
tion. 231 NLRB 651 (1977).'
On the basis of the above 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:
ORDER9
The Respondent, Sullivan Transfer Co., Dallas, Texas, its
officers, agents, and assigns, shall:
i. Cease and desist from:
'Such assignments are also to be made to Harper upon his reinstatement.
'See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
' In the event no exceptions are filed as provided in 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.
(a) Discriminating against employees by reducing their
hours worked and by constructively discharging them in
retaliation for the attempts of their collective-bargaining
representative to enforce the provisions of their collective-
bargaining agreement.
(b) Telling employees that they cannot remain in its
employ without a significant reduction in the number of
hours worked if they continue to be represented by the
Union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative actions which are
necessary to effectuate the policies of the Act:
(a) Offer James Harper immediate and full reinstatement
to his former position, or if that job no longer exists, to a
substantially equivalent. position, without prejudice to his
seniority or other rights previously enjoyed.
(b) Revert to its former practice of assigning Ruben
Washington and James Harper, as permanent employees, to
both old construction work and new construction work.
(c) Make James Harper and Ruben Washington each
whole for any loss of earnings they may have suffered as a
result of the discrimination against them in the manner set
forth in the section of this Decision entitled "The Remedy."
(d) Post at its place of business in Dallas, Texas, copies of
the attached notice marked "Appendix."'" Copies of said
notice on forms provided by the Regional Director for
Region 16, shall be signed by an authorized representative of
Respondent and posted immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter at
all locations where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or covered by
any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply therewith.
"' In the event that this 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."
776