Albert L. Smith, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1969

179 N.L.R.B. 506 (N.L.R.B. 1969)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albert L. Smith, Incorporated and Laborers'
International Union of North America , Local No.
859, AFL-CIO . Case 16-CA-3591
November 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On July 18, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in unfair labor practices as alleged in the
complaint 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 Trial Examiner's
Decision 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and
recommendation of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommendation of the Trial Examiner, and orders
that the complaint be, and it hereby is, dismissed in
its entirety.
The General Counsel ' s exceptions related , in large part , to the Trial
Examiner ' s credibility findings On the basis of our own careful review of
the record , we conclude that these credibility resolutions are not contrary
to the clear preponderance of all the relevant evidence Accordingly, we
find no basis for disturbing those findings Standard Drv Wall Products.
Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Fort Worth, Texas, on May 27,
1969,' pursuant to due notice. The complaint, which was
issued on April 29, on a charge and an amended charge
filed on April 3 and 28, respectively, alleged that
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(3) and (1) of the Act by discharging James
0 Roland because of his refusal to work behind a picket
line established by another union at the jobsite
Respondent answered on May 5, denying the unfair labor
practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATION INVOLVED
I find on admitted allegations of the complaint that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act,2 and that the Charging
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A The Issues
The issues herein, purely factual, are whether
Respondent discharged James O. Roland on March 20 for
refusing to work behind a picket line on a construction
site and whether he was thereafter refused reinstatement
Respondent contends (1) that Roland quit and (2) that in
any event, if a discharge were found, it was withdrawn on
the same day by offering to permit Roland to return to
work. Respondent does not question that a refusal to
work behind a picket line would constitute engaging in
concerted activity, protected by Section 7 of the Act, but
denies it had knowledge that Roland quit for that reason.
B The Evidence
Respondent was the general contractor on the
Castleberry Senior High School job at Fort Worth on
which it employed Roland, a member of Local 859 This
proceeding arose as a result of picketing conducted by
United Cement, Lime and Gypsum Workers Union at
times when trucks of Trinity Concrete Products Company
were making deliveries of concrete to Respondent at the
jobsite The crafts which Respondent employed on the job
were carpenters, laborers and iron workers, and a
subcontractor employed operating engineers. Work
stoppages occurred intermittently by the iron workers
during the periods of actual picketing, with work being
resumed upon departure of the Trinity trucks and the
cessation of the picketing.
The principal events herein occurred on March 20
Roland, who was hired as a laborer on March 17, testified
that after talking with some of the other laborers during
the lunch hour he decided he would not work behind the
picket line. However, he continued to work until around 3
p.m ,' when he left the job and informed Job Foreman
Lassiter he did not think he would work. any longer
behind the picket line. Lassiter replied that the picket line
was not legal and that Roland should, "Go ahead and
work, if you want the job . If you don't, I'll have to
replace you. . "
All events herein occurred in 1969
'Respondent, a Texas corporation engaged in the building and
construction business as a general contractor, purchases annually goods
and materials valued in excess of $50,000, which are transported to its Fort
Worth facilities directly from extrastate points
in the meantime J M Breeding, Business Agent of Local 859, came to
the job and talked with some of the laborers, and Roland testified he
overheard Breeding make the comment to Job Foreman Vernon Lassiter
that he himself never worked behind a picket line There was also
179 NLRB No. 66
ALBERT L. SMITH, INC. 507
Lassiter testified that Roland announced he was leaving
shortly after Breeding came onto the job and spoke with
some of the laborers about the picket line and that he
(Lassiter) told Roland he should "leave until the picket
leaves, and then come back and go to work."4 Roland
stood around a while and Lassiter told him that if he was
going to leave to do so, but otherwise to go back to work.
Roland went on to the job office where he informed
Job Superintendent Leroy Tingle he did not want to work
behind the picket line. Roland testified that Tingle stated
that Roland was needed and that he should go back and
go to work if he wanted his job. When Roland repeated
his refusal to work behind the picket line, Tingle told him
he could pick up his check the next afternoon at 3 or 3:30
p.m.
Tingle testified that Roland reported only that he was
going to leave and that he (Tingle) replied that in that
case Roland should come back Friday and pick up his
check
Before leaving the jobsite, however, Roland spoke with
Breeding and they returned to speak with Tingle, in
Lassiter's presence. Breeding demanded that Roland be
paid in full because Tingle had fired him.' Breeding
admitted (as Tingle and Lassiter testified) that Tingle
replied that Roland had not been fired and that if he
wanted to work he should go back to work. Tingle added
that if Roland wanted his check, it would be at the job
office the next day at 3:30.
On the afternoon of March 21 Roland returned to pick
up his check. Roland testified that Tingle informed him
the check would not be there until after 3 p.m. Roland
asked whether he could come back to work on Monday
and Tingle said he could not because he walked off the
job. Roland explained that he had informed Lassiter he
would not work behind a picket line, but Tingle replied
that so far as he was concerned Roland was "through."
When Tingle later handed Roland his check, it did not
cover all his pay and he renewed his inquiry whether he
could come back to work on Monday. Tingle repeated
that as far as he was concerned Roland was "through."
Melvin T. Glaspie, who accompanied Roland on the
21st, testified that he overheard the conversation with
Tingle, though he was outside the job office at the time,
and that he heard Tingle say that Roland could not come
back to work.
Tingle testified, however, that Roland asked only about
being fired, that he denied he fired Roland, and that
Roland said nothing about coming back to work. Lassiter,
who was present, testified similarly that Tingle denied
firing Roland and that Roland did not ask for a job.
Roland testified further that he returned on March 28
for the balance of his pay, that he asked whether Tingle
was ready for him to come back to work, and that Tingle
testimony by Job Superintendent Leroy Tingle, denied by Breeding, that
Breeding stated he would "get" the cards of laborers who continued to
work behind the picket line. The point is without relevance to the question
whether Roland was discharged, for it is unnecessary to determine what
motivated Roland's decision not to work. Cf. Nuodex, Etc., 176 NLRB
No. 79 , and cases there cited Tingle's testimony tended , however, to refute
Respondent' s denial of knowledge of the reason for Roland's work
stoppage. See fn. 4, mnfra
'Lassiter's testimony refuted Respondent's contention that it was without
knowledge that Roland was refusing to work behind a picket line
Moreover other testimony by Lassiter and Tingle showed they were well
aware that Breeding 's presence on the job was directly concerned with the
fact that the laborers were working behind a picket line See fn 3 supra
'The contract provided , as Roland and Breeding knew , that a discharged
employee should be paid in full.
replied he was not. Tingle testified that Roland asked why
Tingle fired him and said nothing about coming back to
work. Tingle again informed Roland he was not fired.
Tingle testified that there had been intermittent work
stoppages by the iron workers prior to March 20, during
periods when the cement trucks were being picketed, and
that on March 20 the iron workers again stopped working
at times when the pickets were present. Tingle did not
discharge or lay off the iron workers but simply "docked"
them for the time they were off the job. Tingle testified
further that he needed laborers both on March 21 and 28
and that there was always room for Roland if he wanted
to come back. On Monday (March 24) Tingle requested
laborers through the Union's business agent but none were
sent out. Again on March 31 he called the Union for
laborers and referrals were made.
C. Concluding Findings
I conclude and find on the foregoing evidence that
Roland did not quit on March 20, but that he refused to
work behind the picket line, to Respondent's knowledge.
See fns. 3 and 4, supra. I find further that Roland was not
discharged. Though under Roland's testimony he assumed
Lassiter discharged him, that assumption was plainly not
warranted by Lassiter's statement (as Roland testified to
it) that Lassiter would have to replace him if he did not
go back to work.
Furthermore, Roland's testimony did not establish that
Tingle discharged him. Thus, though Tingle told Roland
he should go back to work if he wanted his job, Tingle did
not tell Roland he was discharged when the latter repeated
his refusal to work. Instead, Tingle told Roland he could
get his check the following afternoon, though under
contract provisions known to Roland a discharge or layoff
required full payment of wages on the spot. Moreover,
though Roland and Breeding assumed that Roland was
discharged and demanded that Roland be paid off, Tingle
immediately corrected any misapprehension on their part
by informing them that Roland had not been fired but
was free to go back to work.
Moreover, the evidence as a whole showed that Tingle's
disposition was not to discharge employees who refused to
work behind a picket line, for he took no disciplinary
action whatever when faced with the far greater
provocations of repeated work stoppages by the iron
workers.
There remains the question whether Roland was denied
reinstatement on March 21 and 28. Roland's testimony
that Tingle rejected his request to return to work because
he walked off the job was again plainly not consistent with
Tingle's conduct in condoning repeated work stoppages by
the iron workers. Furthermore, Tingle and Lassiter
testified that Roland's inquiry concerned the reason for
his discharge and that he said nothing about coming back
to work. I credit that mutually corroborative testimony,
for I find unpersuasive Glaspie's attempted corroboration
of Roland. I also credit Tingle's testimony that on March
28 Roland asked only why he was fired and said nothing
about coming back to work.
It is also to be noted that though Roland was informed
on March 20, 21, and 28 that he was not discharged, he
made no attempt to return to work (until his ultimate
reinstatement on May 8), nor did he request the Union to
refer him to the job on March 24 and 31 when Tingle was
actively seeking referrals from the Union.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, I conclude and find that the General Counsel preponderance of the evidence on the entire records and I
failed to establish his complaint allegations by a therefore recommend that the complaint be dismissed.