B-E-C-K- Christenson-Raber-Kief & Associates, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1972

195 N.L.R.B. 458 (N.L.R.B. 1972)

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B-E-C-K -Christenson-Raber-Kief & Associates , Inc. ORDER
and Jethro Brown . Case 19-CA-5105
February 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 10, 1971, Trial Examiner Henry S.
Salim issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and a
supporting brief, and Respondent filed an answering
brief in support of the Trial Examiner's Decision.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions,' and to adopt his
recommended Order.
' General Counsel urges that we find an 8(a)(1) violation in Respondent's
failure to rehire Brown, relying upon Merlyn Bunney and Clarence Bunney,
Partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516
While it is true that the Trial Examiner seemed to be limiting his considera-
tion to the 8(a)(3) allegations of the complaint, it nevertheless seems clear
that he credited Respondent's version of the facts, which was to the effect
that it was Brown's record of quitting during a project which motivated
Respondent in deciding not to rehire Brown, particularly for a job requiring
transportation to a distant project Thus, if we accept his credibility resolu-
tions, we must also find that no 8(a)(1) violation occurred, since the failure
to rehire has been found to have been based upon valid business considera-
tions While General Counsel has excepted to certain credibility findings
made by the Trial Examiner, it is the Board's established policy not to
overrule a Trial Examiner's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions were 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
The General Counsel has excepted also to the Trial Examiner's failure to
correct the record in accordance with the General Counsel's unopposed
motion to the Trial Examiner We hereby grant the motion and order the
record so corrected
Footnote 2 of the Trial Examiner's Decision is in error insofar as it
indicates that the agreement between Respondent and Amchitka Crafts
Council, Resp Exh 1, was applicable to Brown's 1969 employment with
Respondent
Finally, the letter of the U S Army Corps of Engineers to Brown was
dated September 23, 1969, not 1961 as the Trial Examiner found
3 We disavow the Trial Examiner's reliance on Collyer Insulated Wire,
192 NLRB No 150 He appears to have assumed that Brown's August
grievance related to the same subject matter as Brown's January charge filed
with the NLRB This assumption is contrary to fact, since Brown's grievance
related solely to his wage claims during his previous period of employment
Member Jenkins would not in any event defer to the grievance procedure,
for the reasons set forth in his dissenting opinion in Collyer, supra
195 NLRB No. 95
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 be, and hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S SAHM, Trial Examiner: This proceeding, heard
at Anchorage, Alaska, on May 27, 1971, pursuant to a charge
filed the preceding January 22 and a complaint issued March
9, presents the question whether Respondent herein, called
the Company, violated Section 8(a)(3) for refusing to hire
Jethro Brown on December 23, 1970, because when he was
formerly employed by the Company he filed a grievance with
his Union and with the Army Corps of Engineers claiming
he was underpaid, and he also filed a charge with the U.S.
Equal Employment Opportunity Commission alleging em-
ployment discrimination in violation of the Civil Rights Act
of 1964.
Upon the entire record and consideration of Counsels' ar-
guments, including the briefs of the parties and citation of
cases claimed to be dispositive of the issues in this case, and
from observation of the demeanor of the witnesses, there are
hereby made the following.
FINDINGS OF FACT'
I BUSINESS OF THE RESPONDENT
The Company, a joint venture, is engaged in the general
contracting business. It is one of the contractors at the Am-
chitka Island, Alaska, Test Site of the Atomic Energy Com-
mission. Annually, the Company purchases and receives
from sources outside Alaska for use in Alaska goods and
supplies valued in excess of $50,000. Upon the foregoing
admitted fact, it is found that B-E-C-K-Christenson-Raber-
Kief & Associates, Inc., is engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III ALLEGED UNFAIR LABOR PRACTICES
A. Brown is Refused Employment
Brown was employed by Respondent Company from June
9, 1969, through July 25, 1969, on Amchitka Island, Alaska
Before the project on which Brown was working was com-
pleted, he voluntarily quit his job When he returned to An-
chorage, he complained to his union, Local 341 of the Labor-
ers, herein called the Union, claiming he was "shorted" on
actual hours worked and also that he was underpaid by the
Company in that he was paid asphalt-raker's pay instead of
the scale provided for a screed-man's work, which he con-
tended he was entitled to under the terms of a collective-
' In resolving the disputed issues , where no mention is made of certain
evidence introduced by the parties , it is not because consideration was not
given to such evidence , but rather because it is regarded as insubstantial in
character or unsupported by a preponderance of credible evidence or im-
material to deciding the salient issues in this case See Jackson Maintenance
Corp, 126 NLRB 115, 117, fn 1, Bishop & Malco, Inc, 159 NLRB 1159,
1161
B-E-C-K-CHRISTENSON-RABER-KIEF & ASSOCIATES 469
bargaining agreement between said Union and the Com-
pany.'
Brown also complained on August 1, 1969, to the Army
Corps of Engineers alleging he was hired as an asphalt raker
but performed as a screed-man receiving , however, the basic
hourly wage rate of $6.39 rather than the higher screed-man's
scale of $7.74 per hour.' By letter dated September 23, 1961,
the Engineers notified Brown that his claim was disallowed
as there was no violation of the contract labor standards.
The complaint made by Brown was submitted on August
4, 1969, by his Union to the Board of Conciliation established
under the provisions of the Alaska Master Labor Agreement.
By decision dated February 16, 1971, the Board found against
Brown on his claim that the Company had shorted him on
the hours he had worked but held that Brown had performed
the work of a screed-man and should have been paid the
higher scale The Company was ordered to pay Brown
$184.24, which it did
By letter dated October 8, 1970, Brown was advised by the
Equal Employment Commission that the Commission had no
jurisdiction over his charge of employment discrimination
which he alleged to be in violation of the Civil Rights Act of
1964
B. The Company's Version
The Company Respondent admits it refused to hire Brown
on December 23, 1970, when he was referred by the Union
for a job on Amchitka Island, stating that during his previous
employment by them in 19641 and 1969 Brown's performance
of duties was not satisfactory and in 1969 he quit the job
without notice during the final weeks of the project, thereby
causing a shortage in crew manning and a subsequent in-
crease in overtime.' Brown, on December 23, 1970, also com-
plained to the Alaska State Legal Services Association, which
represents low income clients for no fee, which instituted a
charge before the State Human Rights Commission on his
behalf, alleging that Respondent refused to hire Brown be-
cause he is a Negro. On January 22, 1971, Brown filed with
the Board a charge against Respondent alleging he was
refused employment because he "engaged in protected and
concerted activities," which eventuated in a complaint being
issued on March 19 and a hearing held on May 27
Alaska Master Labor Agreement, 1969-1972, GC Exh 2, Agreement
between Company and Amchitka Crafts Council, Resp Exh 1
It appears that all screed-men come within the referral jurisdiction of
the Operating Engineers Union
The Company alleges that when Brown left its employ in 1964 he was
arrested by the police for intoxication, which Brown denied
Brown 's testimony is not credited that Parker, the Company's Anchor-
age manager , told him when he was referred by the Union on December 23,
that the Company would not hire him because of the various charges he had
instituted against it It strains one's credulity to believe that Parker, a Com-
pany official for 15 years, and evidently versed in employment practices and
industrial relations, would be so incredibly naive and inane as to senselessly
compromise his company with the admittedly damaging statement to Brown
that its refusal to hire him was because of the lawsuits and charges he had
instituted against the Company Parker's version is credited that he told
Brown when he refused to hire him that his previous employment record
with the Company was unsatisfactory Moreover, Parker's testimony that he
immediately telephoned Lee, the Union's president, and informed him that
he had refused to hire Brown because he was not satisfactory on his last job
and requested him to refer another man, stands uncontradicted on the
record
Discussion and Conclusions
The evidence here is devoid of any credible discriminatory
reason for Respondent's refusal to hire Brown. There is no
basis in the record for concluding that Brown was refused
employment for proscribed reasons. In this proceeding, the
bare recital of the facts is sufficient to show no discriminatory
conduct within the meaning of Section 8(a)(3) of the Act. The
Union's president, Ray Lee, when told by Brown on Decem-
ber 23 that he had been refused employment by Parker, did
nothing at that time other than to refer another man to
Respondent. However, Parker, Respondent's Anchorage
manager, immediately advised Lee on December 23, that
Brown was ineligible for rehire and the same day wrote a
letter to the Union explaining the reasons why Brown was not
hired. See also General Counsel's Exhibit 7. Also, on the
same day, when an official of the State Human Rights Com-
mission telephoned Parker in regard to Brown's charge of
race discrimination, Parker told him that Brown had not been
satisfactory on his last job. The job that Brown applied for on
December 23 involved a project of the Atomic Energy Com-
mission on Amchitka Island which requires all applicants to
be screened, undergo an investigation, and receive a security
clearance.' The costs entailed in the security, physical, and
psychological processing of a person to be sent for employ-
ment to Amchitka costs approximately $600. In addition,
there is provided one-way transportation of $175 from An-
chorage to Amchitka, plus 8 hours' pay for filling out the
security papers and also 8 hours' travel time pay which
amounts to an additional $106 The cost of a replacement in
the event Brown proved unsatisfactory on the job to Re-
spondent, the General Contractor, or the Government would
amount to approximately $880, which does not include re-
turn transportation from Amchitka Island to Anchorage, for
all of which Respondent was financially responsible. This
necessarily required caution and care on Respondent's part
as to whom they selected for employment on Amchitka.
These uncontroverted facts, supra, confirm Parker's cred-
ited testimony that his reasons for refusing to hire Brown
were due to his former employment record which was un-
satisfactory and not for proscribed reasons. The refusal to
employ Brown, based on legitimate and substantial business
justifications, constituted a lawful exercise of managerial
right and prerogative. The Supreme Court, in one of the first
Labor Board complaint cases it decided, stated:
The Act does not interfere with the normal exercise of
the right of the employer to select its employees or to
discharge them. The employer may not, under cover of
that right, intimidate or coerce its employees with re-
spect to their self-organization and representation, and
on the other hand, the Board is not entitled to make its
authority a pretext for interference with the right of
discharge when that right is exercised for reasons other
than such intimidation and coercion.7
In order to find an 8(a)(3) violation with respect to Brown,
it would be necessary, among other factors, to hold, under the
circumstances here revealed, that his being refused employ-
ment for ostensibly valid reasons as evidenced by the credited
testimony specified above and below is not a management
prerogative but rather was intended to discriminate against
him. Fundamental economic concepts would decry such a
concept as administrative arrogance What was said by the
Court of Appeals for the Fifth Circuit is particularly perti-
nent in this regard.
See Article XIII and XIX of the Maintenance Agreement Resp Exh
1
' NLRB v Jones & Laughlin Steel Corp, 301 U S 1, 45-46
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But as we have so often said: management is for manage-
ment. Neither Board nor Court can second-guess it or
give it gentle guidance by over-the-shoulder supervision.
Management can discharge for good cause, for bad
cause , or no cause at all. It has, as the master of its
business affairs, complete freedom with but one specific
definite qualification: it may not discharge when the real
motivating purpose is to do that which Section 8(a)(3)
forbids ... The employer does not enter the fray with
the burden of explanation. With discharge of employees
a normal , lawful legitimate exercise of the prerogative of
free management in a free society, the fact of discharge
creates no presumption, nor does it furnish an inference
that an illegal-not a proper-motive was its cause. In
the choice between lawful and unlawful motives, the
record taken as a whole must present a substantial basis
of believable evidence toward the lawful one.'
Moreover, there is evidence that the Company and Union's
relationship has been mutually beneficial and harmonious.
Henry Hedberg, a Union official for 19 years, presently Secre-
tary-Treasurer of Local 341 of the Laborers Union and for-
merly president and business agent, testified on cross-exami-
nation , when called as a witness by the General Counsel, that
Respondent's relationship with the Union is excellent and he
described the Respondent Company as "one of our better
contractors." Furthermore, this litigation was the first time
in 10 years of Respondent's existence that it has ever been
accused of committing an unfair labor practice and this was
the first grievance filed against them with the Board of Con-
ciliation. See above. Richard Egge, one of the owners and
partners of Respondent, testified that Respondent has never
had any labor difficulties of any kind and he characterized the
Company's relationship with Alaska unions as "very good,"
stating that they have "an affirmative action" program which
has been characterized by the Atomic Energy Commission as
"the best"' in Alaska. In addition, testified Egge, they have a
minority program headed up by a Negro and they have ac-
tively recruited minority trainees and employ a black subcon-
tractor on their job at Amchitka. Recently, Egge stated, the
Government awarded his Company a contract at Great Falls,
Montana, "because we had the best affirmative action pro-
gram" even though " ... we were not low bidder."
The Board and the Courts, in other cases where it has been
found that a respondent has committed unfair labor prac-
tices, have considered a respondent's animus or hostility to-
ward union and/or protected activities. Evenhanded justice
would require that where there is not a scintilla of evidence
produced by the General Counsel to show such antiunion
bias, as here, this factor should be considered in evaluating
whether the Respondent in this proceeding has committed
any unfair labor practices. There is no such evidence in the
record of this case to support such a conclusion This proba-
tive and significant factor also casts doubt upon the meagre,
if any, evidence to substantiate the General Counsel's conten-
tions that Brown was refused employment because of his
"protected and concerted" activities. In addition, there is
lacking another crucial element-independent evidence of
antiunion motivation which is essential to finding a prima
8(a)(3) of the Act.' Therefore, upon the record as a whole, it
is found that the General Counsel has failed to sustain his
burden of establishing by a fair preponderance of substantial
creditable evidence that the Respondent discriminatonly
refused employment to Jethro Brown.
The Board's recently issued decision on August 23, in the
Collyer Insulated Wire case, 192 NLRB No. 50, ruled by a
three-to-two vote that since the dispute giving rise to the
alleged unfair labor practices was cognizable under the con-
tract's grievance and arbitration provisions the Board would
leave the resolution of this dispute to the procedures provided
by the contract. The Board accordingly dismissed the com-
plaint. The majority opinion states:
. [W]hen the parties have contractually committed
themselves to mutually agreeable procedures for resolv-
ing their disputes during the period of the contract, we
are of the view that those procedures should be afforded
full opportunity to function ... the board's authority, in
its discretion, to defer to the arbitration process has
never been questioned by the Court of Appeals, or by the
Supreme Court.
The instant case is an a fortiori situation, as no arbitration
proceedings had been instituted in the Collyer case before the
case came to the Board whereas in this case Brown's Union
filed a grievance with the Board of Conciliation on August 8,
1970, but it was not until January 22, 1971, that Brown filed
a charge with the National Labor Relations Board The
Board in the past has also dismissed a complaint where the
charging party has concurrently utilized arbitration proceed-
ings and Board processes for the purpose of litigating his
dispute."
It is found, therefore, that the adjudication of the com-
plaint herein should be eschewed in deference to the griev-
ance procedures to which the Union and Respondent Com-
pany have contractually obligated themselves to "full
cooperation" in settling all grievances. Moreover, to adjudi-
cate this dispute might be tantamount to an oblique vitiation
of the grievance procedure itself in that it would serve as a
rallying point as well as an alternative forum for litigants who
would be encouraged thereby to fit another arrow to their
bow by concurrent recourse to Board processes rather than
adhering to the contractually agreed-upon grievance proce-
dures Furthermore, if the parties are required first to exhaust
their rights under the grievance procedures as a condition of
obtaining a Board determination, this might eventuate, in
many instances, in the aborting of incipient unfair labor prac-
tice proceedings. It would seem, therefore, and the Board has
so held, that if the dispute is referable to the agreed-upon
grievance machinery, a charge or complaint should not issue
until that procedure has been exhausted."
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following recommended:
ORDER
The complaint is dismissed in its entirety.
facie case of discrimination within the meaning of Section ' Economy Stores, Inc, 120 NLRB 1, 8, Schwob Manufacturing Co v
NLRB, 297 F 2d 864 (C A 5)
10 Timken Roller Bearings Co, 70 NLRB 500, 501
° NL R.B. v McGahey, 233 F.2d 406, 412-413 (C A 5) Accord " CollyerInsulated Wire, supra Crown Zellerback Corp, 95 NLRB 753
NL R B. v Ace Comb Co, 342 F 2d 841 (C A 8) United Telephone Co, 112 NLRB 779, 781