Green Construction Co.

National Labor Relations Board - Board Decisions

Jan 7, 1970

180 N.L.R.B. 577 (N.L.R.B. 1970)

GREEN CONSTRUCTION CO.
Green Construction Company and International
Union of Operating Engineers, Local 303. Case
19-CA-4284
January 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 26, 1969, Trial Examiner Stanley
Gilbert issued his Decision in the above proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices but
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed limited exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel and Charging Party did not file exceptions
or briefs.
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, the limited exceptions and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations 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
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
' In the absence of exceptions , we adopt pro forma the Trial Examiner's
refusal to issue a remedial order for the violation he found of Section
8(a)(5) and ( 1) and his recommended dismissal of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT , Trial Examiner : Based upon a
charge filed on February 17, 1969, by International Union
of Operating Engineers , Local 303 , AFL-CIO, herein
referred to as the Union , the complaint herein was issued
May 2, 1969. Said complaint alleges that Green
Construction Company , referred to herein as the
Company or Respondent , engaged in conduct violative of
Section 8 (a)(5) and ( 1) of the Act . Respondent, by its
answer , denies that it committed the unfair labor practices
alleged in the complaint.
180 NLRB No. 85
577
Pursuant to notice, a hearing was held in Ephrata,
Washington, on June 14, 1969, before me. Appearances
were entered on behalf of the General Counsel and
Respondent, but no appearance was entered on behalf of
the Union as the Charging Party. Briefs were received
from the General Counsel and Respondent within the time
designated therefor.
Upon the entire record' in this proceeding and upon
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is an Iowa corporation engaged in various
heavy construction projects. The construction project
involved in this proceeding is at the Grand Coulee Dam,
Washington, which the Respondent is engaged in on a
contract basis for the Bureau of Land Reclamation.
Respondent annually does a gross volume of business in
excess of $500,000 and annually purchases goods and
supplies which originate outside the State of Washington
in excess of $50,000.
As is admitted by it, Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by the Respondent, at all times material
herein the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On April 4, 1968, the Union was certified as the
bargaining representative of the following described
bargaining unit:
All employees of the Respondent engaged in field
survey work at Grand Coulee, Washington, excluding
office clerical, professional employees, guards and
supervisors as defined in the Act and all other
employees.
On or about April 9, 1968, Respondent and the Union
agreed to and executed a collective-bargaining agreement
covering the employees in the above-described unit. On
November 6, 1968, the following four employees, Fred W.
Kelsey, Walter Liebenow, Roy L. McCulley, and Gary
Green, comprised the entire membership of the aforesaid
bargaining unit. On said date, November 6, 1968, the
Respondent terminated the employment of all four said
employees without prior notice to or consultation with the
Union. General Counsel contends that this conduct
constituted a violation of Section 8(a)(5) and (1) of the
Act in that the Respondent took such action "without first
affording the Union an opportunity to bargain about the
effects of the termination upon the unit." The General
Counsel represented at the hearing that the "Respondent
and the Union did negotiate and bargain on the 10th of
February [1969] about the decision [to terminate the
employees]." It was stipulated at the hearing that the
'Due to a partial failure of her recording equipment , the reporter was
unable to transcribe a portion of the testimony of Fred W Kelsey. The
General Counsel and Respondent stipulated to the substance of the missing
part of Kelsey's testimony which stipulation was received into the record
by the Trial Examiner as TX Exh. I
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination was solely for economic reasons. It appears to
be the General Counsel's position that between November
6, 1968, and February 10, 1969, the Respondent concealed
the permanent nature of the terminations and thereby
"dulled the Union's senses as to the necessity of
bargaining about the effect of the decision to terminate,"
thus preventing it from bargaining more effectively.
At the time material herein, the Respondent was
working on a contract from the Bureau of Land
Reclamation to excavate certain land in connection with
the Coulee Dam. Although the Respondent was furnished
with surveys prepared by the Bureau, it hired its own
survey crew to check the accuracy of the surveys
furnished. The Respondent was not required to do so
under its contract, but apparently undertook this
additional work at its own expense.
As is stated above, on November 6, 1968, the aforesaid
four surveyors (comprising the bargaining unit) were
terminated by Dillon, Respondent's project engineer. Fred
Kelsey was the only witness called by the General Counsel
to testify as to the incident of the discharge. According to
a stipulation of the parties, his testimony, in substance,
was as follows:
David Dillon notified me of the termination. He said,
"I have bad news. We are laying off the survey crew for
economic reasons and are going to try it that way. We
may call you back in a couple of months." I replied,
"In a couple of months we might be scattered to the
four winds."
Dillon testified as follows:
Q. At the time that you informed them that they
were being terminated, did you make any comments as
to their reemployment or rehiring them?
A. No, I didn't. On the contrary, I told them that we
did not want them to feel obligated to stay in the area
because of the uncertainty as to whether or not they
would be rehired. If they had any opportunity to go to
work with anyone else, they should take it.
It is found from the above testimony of Kelsey and
Dillon, which is not substantially at variance, that when
the four employees were terminated they were informed
that the Respondent intended to determine whether it
could eliminate the expense of checking Government
surveys and that it was uncertain whether it would ever
resume the checking and rehire them. It is further found
that Dillon stated that it might be decided in a couple of
months to call them back, but also indicated that the
employees should not rely on that possibility. These
findings are based on the above credited testimony of
Kelsey and Dillon.
The surveyors notified Young, the business manager of
the Union, and Charles C. Lacey, the Union's business
representative, that their employment had been
terminated. Dillon testified that on the day of their
discharge he received a call from Young.' Dillon testifed
to their conversation as follows:
Mr. Young called me and said that he had been
informed that we had terminated all four members of
our survey crew. He had been told that the government
would now take over the work that our survey crew had
been doing and that we were going to be subcontracting
the work to the federal government and that he wanted
'it is not clear from Young's testimony when he learned of the
termination of the employees and when he called Dillon . However , since he
did not deny Dillon's testimony that it was on the day of the termination,
Dillon 's testimony as to the date is credited.
to inform me that during the course of a conversation
with someone that he had found out the Technical
Engineers union could strike the Bureau of Reclamation
at the jobsite for this practice and that they were
planning on doing so.
Q. Did you advise him as to whether or not you were
subcontracting any work to the Bureau?
A. Yes. I told him that we were not subcontracting
work to the Bureau and that the Bureau wasn 't going
to be doing our survey work . I told him that our
surveyors were simply checking the Bureau ' s work.
Q. Did you have any conversation as to whether or
not these men would be rehired by Green Construction
Company?
A. I didn't talk about that at that time because Mr.
Young seemed to be more concerned with telling me
the Technical Engineers were going to strike the
government because the government was doing their
work. We didn't get into any discussion about how long
they would be off.
Young was called as rebuttal witness and did not deny the
above testimony of Dillon. He did deny that he was
advised by Dillon that the employees should seek other
work. However, Dillon did not testify that he gave such
advice to Young in the course of this conversation. It is
noted that Young further testified in the course of his
rebuttal testimony that, in his conversation with Dillon, he
asked Dillon "what the future plans were" and that Dillon
advised him that in the event Respondent would require
the surveyors, "and there was every indication that they
would require them," he would recall them. On the other
hand, as indicated above, Dillon testified that there was
no conversation about rehiring the surveyors. There is a
greater probability that Young, in his capacity as an
official of the Union, would inquire about the Company's
plans with respect to the possibility of the reemployment
of the dischargees and it is quite likely that Dillon, who
impressed the Trial Examiner as a credible witness, failed
to recall that portion of their conversation. Therefore, the
above testimony of Dillon is credited except that portion
of Dillon's testimony that there was no conversation about
rehiring the employees. Young's testimony with regard
thereto is credited.
Lacey testified that he learned of the termination of the
employees from two of them either on the day of their
termination or a day after, and that 2 days after the
termination he called Respondent and talked to Ben
Howard. It appears from the record that Ben Howard was
an assistant manager at the project and that while he dealt
with the unions with respect to hiring, he did not make
any decisions as to hiring or firing. According to Lacey,
Howard informed him that "to the best of his knowledge"
the surveyors shouldn't be "off" for a "long" period and
suggested that he contact Dillon, the project engineer,
ostensibly to get more authoritative information. Although
the testimony of Lacey with respect to his conversation
with Howard is credited, it is apparent from the record
and it was made apparent to Lacey that Howard was not
privy to the decision to discharge the surveyors or to what
the future plans of Respondent were with respect to
resuming the survey and that such information should be
obtained from Dillon.
Lacey further testified that subsequently he attempted
to contact Dillon and was successful in reaching him 5
days after the termination. According to Lacey, he asked
GREEN CONSTRUCTION CO.
Dillon about the Respondent's plans with respect to the
survey crew and Dillon informed him that "he hoped he
would get them back by the first of the year." Dillon
testified that he did have a conversation with Lacey
shortly after the termination. It appears from Dillon's
testimony that he was not too certain of the date of their
conversation and therefore Lacey's testimony that it was
on the fifth day after the termination is credited. Dillon's
testimony as to the content of their conversation is as
follows:
Mr. Lacey said that he had heard from the members of
the survey party that we had laid them off and had
understood that the Bureau of Reclamation was going
to be doing their work. He also asked when these
people would be put back to work. I told him that there
was no definite date as to when they would be put back
to work, but if they would be put back to work, it
would not be sooner than the end of January, 1969.
Q. Did you have any conversation with Mr. Lacey
regarding speaking to the surveyors?
A. Yes. I said if he had any opportunity to put these
people on another job, he should place them because of
the uncertainty of when they would be called back.
Q. Do you recall what his response was?
A. At the time I think he said there wasn't enough
work around the state to find these people work and if
there was a possibility of us calling them back, he
would just as soon leave these four people in the area.
Lacey was recalled as a rebuttal witness and denied that
he was advised by Dillon that the employees should seek
other work. However, he did admit, on cross-examination,
that Dillon "didn't say for sure" that he would call them
back.
Both Lacey and Dillon impressed the Trial Examiner as
witnesses attempting to testify to the best of their
recollection. In view of Dillon's uncontradicted testimony
that he told the employees when he terminated them not
to feel obligated to stay in the area because it was
uncertain that they would be rehired, it appears more
likely than not that he indicated to Lacey that the
surveyors would be well advised to seek work elsewhere.
Therefore, that aspect of his testimony is credited as is the
rest of his testimony concerning his conversation with
Lacey. However, Lacey's testimony is credited that Dillon
said he "hoped" he would rehire the men about the "first
of the year" (rather than at the "end of January," as
Dillon testified). This is predicated on the fact that Dillon
testified that he received a call from Lacey about the 10th
of January inquiring as to when the survey crew would be
put back to work, which tends to indicate that Dillon
stated around the first of the year instead of the end of
January.
Dillon testified that, at that time, he told Lacey again
that "we were not certain if the survey crew would be put
back to work and because of that fact we could not give
them a definite date or whether they would be put back to
work." Lacey did not testify whether or not he had such a
conversation with Dillon and when he was recalled as a
rebuttal witness he did not deny Dillon's testimony with
regard thereto. Therefore, it is credited.
Lacey did testify that he had two conversations with
Howard in the first half of January and that on the first
occasion Howard stated to him that "he felt that they
could be back by mid-January" and on the second
occasion that the work now being performed did not
require the surveyors to be present but he did look for it
to be around the first of February. This testimony of his
579
conversations with Howard are not denied and therefore
are credited.3 However, in view of the finding hereinabove
that it was made apparent to Lacey that Dillon was the
person who would have the information as to rehiring the
surveyors, this testimony as to his conversations with
Howard are of little materiality in view of the
above-credited testimony of Dillon with respect to his
conversation with Lacey at about the same time.
Lacey testified that on February 10 he went to the
jobsite and spoke to a Mr. Winnes and Gerald Olson.
Olson is the Respondent's project manager; it is not clear
what position Winnes held with Respondent except that it
appears reasonable to assume that he was in the higher
echelon of Respondent's management. Lacey testified that
he understood Winnes was the project manager At that
point, according to Lacey's testimony, he was told by
Winnes that "he did not intend to use their surveyors any
longer." Lacey also testified that he did not contact the
Respondent after that date. The above testimony of Lacey
is uncontradicted and is credited. It should be noted that
the General Counsel in his brief states as follows:
In the present case, the date of February 10, 1969 is
important for at that date the permanency of the
decision to terminate the survey crew was
communicated to the Union. No subsequent demands
by the Union were made to bargain concerning the
survey crew.
Concluding Findings
From the above analysis of the testimony, it is found
that on the day of the termination and on several
occasions thereafter, the Union was informed by
Respondent that it had decided to ascertain whether it
could dispense with the work of the survey crew and that
it was uncertain whether the surveyors would or would not
be required in the future. It is further found that the
Union did not on the day of the termination, or at any
time thereafter, request that Respondent bargain with it as
to the effects of Respondent's decision upon the surveyors.
General Counsel conceded that the discharges were
solely motivated by economic reasons, and it is found that
there is nothing in the record to indicate otherwise. While
there is no issue as to Respondent's motive insofar as the
discharge action itself is concerned, it appears that
General Counsel has raised the issue of Respondent's
"state of mind" with respect to when the decision was
made to permanently discontinue the checking of
Government surveys and with respect to whether
Respondent concealed such a decision from the Union
until February 10, 1969.
It appears from the credited testimony of Gerald Olson
that because of the nature of the construction industry (in
that it is not a continuing operation) it is customary to lay
off or terminate employees without prior notification to
the Union when a particular phase of construction they
are working on is completed. The Trial Examiner is of the
opinion that the Respondent regarded the termination of
the survey crew as being no different from the termination
of employees at the completion of a phase of construction,
and therefore it did not consider that it was under an
obligation to give the Union prior notice or to bargain
with the Union with respect to such action.
'Howard was not called as a witness.
'There is no contention that the work of the survey crew was
subcontracted , nor is there any basis for finding that it was.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is concluded that on, or prior to, November 6,
Respondent came to the decision to experiment with
eliminating the checking by its own survey crew of the
Government surveys and therefore discharged the four
surveyors on November 6, 1968 It is further concluded
that during the period from November 6, 1968, to
February 10, 1969, the Respondent was uncertain as to
whether the experiment would be successful or whether it
would have to resume checking the Government surveys.
There is nothing in the record which would support a
finding that it arrived at a decision prior to February 10,
1969, that it could permanently dispense with the survey
crew. Therefore, it is concluded that the record will not
support a finding that the Respondent attempted to
mislead the Union or the employees as to whether the
discharges were or were not permanent. In view of the
aforementioned practice in the industry, it is inferred that
Respondent assumed it was under no obligation to notify
or bargain with the Union about its action with respect to
the survey crew and, therefore, had no reason to conceal
any of the facts concerning such action.
In his brief General Counsel states that he relies heavily
on Dixie-Ohio Express Company, 167 NLRB No. 72.
While some of the principles enunciated in that decision
are applicable hereto, the facts therein are considerably
different from the facts in the instant case. In the
Dixie-Ohio case there was a change in the operations, not
an elimination of a portion of the operations.
Furthermore, in the Dixie-Ohio case, the Board pointed
out that the respondent therein not only failed to give the
union advance notice "but indeed rejected the union's
prior specific requests for such notice." Furthermore, the
Board found in the Dixie-Ohio case that "the Respondent
deliberately determined, as a voluntary assertion of its
own alleged prerogatives, that it would conceal from the
Union what layoffs it proposed to make before effecting
them." In the instant case there is no basis for finding
that there was a deliberate attempt to conceal any
information about the discharges, nor, as stated
hereinabove, is there any basis for finding in this case that
the Respondent had decided to permanently discharge the
employees on November 6 and concealed the permanent
nature of its decision from the Union until February 10,
1969.
It is the opinion of the Trial Examiner, however, that
the Respondent was under an obligation to give the Union
advance notice of its intention to discharge the surveyors
as an experiment and that it was uncertain that they
would ever be rehired. Although it is not the practice in
the industry to give advance notice of layoffs or
terminations when a phase of the construction is
completed, the decision to discontinue the survey work
was not predicated upon completion of a phase of the
work but on a change in plans of management
comparable to a management decision in an enterprise to
terminate a portion thereof.
Based upon the decision of the Board in Ozark Trailers,
Inc . 161 NLRB 561, it is concluded that Respondent was
under an obligation to give notice to the Union of its
intentions with respect to its survey crew in order to
afford the Union an opportunity to bargain with it with
respect to the effects of such intentions upon the
employees. This it did not do until the day discharges
were effect and the failure to give such notice constituted
a violation of Section 8(a)(5) and (1) of the Act. It is
noted, however, that the record is silent as to how many
days, if any, in advance of the discharges, the decision was
made to take such action.
Respondent relies upon the Supreme Court decision in
Textile Workers v. Darlington Manufacturing Co., 380
U.S. 263 and other cases such as N.L R B. v. Adams
Dairy, Inc., 322 F.2d 553, as a defense in this proceeding.
In the Ozark case , supra, the Board made it clear that the
above cases relied upon by the Respondent do not
constitute a basis for finding that an employer who is
partially closing his operations is not required to notify
the Union of his intentions (so that the Union may
bargain with respect to the effects on the employees). It is,
of course, no defense that the Respondent was unaware of
its above-described obligation under the Act
This case is unique in that at the time the Respondent
discharged the employees and continuing apparently until
February 10, 1969, it had not determined whether the
discharges would be permanent or whether it would
resume its survey operations. It was incumbent upon the
Union, when it was apprised by the Respondent of the
facts on the day of the termination of the employees, to
request bargaining , if it desired the Respondent to bargain
with it. The Union did not make such a request It would
be inappropriate to hold, in these circumstances, that the
Union was entitled to wait until the decision was reached
to make the discharge permanent before it requested
bargaining about the decision effected on November 6,
1968 It is the opinion of the Trial Examiner that by
failing to request the Respondent to bargain on November
6, 1968, the Union indicated it was not interested in
bargaining about the Respondent's action on that date.'
The General Counsel concedes that since the Union failed
to request bargaining with respect to the decision (on
February 10, 1968) to make the discharges final, the
Respondent was relieved of any obligation to bargain with
respect thereto. In any event the Union had advance
notice on several occasions , commencing on November 6,
1968, that the discharges might be permanent.
It is concluded that, in the circumstances of this case,
Respondent's aforementioned violation of Section 8(a)(5)
and (1) of the Act was not a willful disregard of its
obligation under the Act, but merely the result of a
mistaken assumption that no such obligation existed. It is
further concluded that after the Union was apprised on
November 6, 1968, of the decision of Respondent with
respect to the surveying crew and made no request that
Respondent bargain with it with respect thereto,
Respondent's obligation under Section 8(a)(5) and (1) of
the Act terminated.
On the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 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. Respondent violated Section 8(a)(5) and (1) of the
Act by failing to notify the Union in advance of its
decision to experiment with dispensing with the services of
the members of the bargaining unit represented by the
Union and afford the Union an opportunity to bargain
'it appears from the credited testimony that the Union was primarily
interested in determining whether the survey work was being subcontracted
and thereafter only in ascertaining when the Respondent might be
resuming its check of the Government surveys It made no request of the
Respondent to bargain with it about resuming the checking operations
GREEN CONSTRUCTION CO. 581
with respect to the effects upon the employees of such a
decision.
Although it has been found that the Respondent did
violate Section 8(a)(5) and ( I) of the Act, it was no more
than a technical violation . The failure to give the Union
notice was not a willful disregard of its obligations under
the Act, but rather was based upon a mistaken
assumption that no such obligation existed . Furthermore,
the mistake was not an unreasonable one in view of the
practice in the construction industry of generally not
requiring notices to unions of layoffs and terminations. It
is most remote that there will be a recurrence of the
conditions existing in this case which led to the aforesaid
violation by Respondent The Respondent , by this
decision , is now enlightened as to what its obligations are
under the Act should it be considering a similar decision
to eliminate a portion of its operations. Also, it is
apparent that the bargaining unit which was affected by
the violation no longer exists. Therefore , it does not
appear that it would effectuate the purpose of the Act to
require the Respondent to post a notice that it will not
repeat the violation in the future.
It is highly speculative that, if the Union had had
advance notice of the Respondent 's decision , it would have
been in a better position to bargain than it was on
November 6, 1968, when it did receive notice of it. True,
the information it received about the decision was only
obtained after inquiry from the Union when it was
presented by a fait accompli , but this does not afford a
basis for recommending an any more meaningful remedy
than had the Respondent furnished the information on its
own initiative. While it might well have been appropriate
to award backpay to the employees who were affected by
the decision for a period from the day of the discharges
until the Respondent bargained with the Union with
respect to the effects of the decision to experiment with
dispensing with their services, it appears that on the day
of the discharges the Union , having had notice, made no
request of Respondent then or thereafter to bargain with
it. Consequently it would not appear appropriate to award
backpay beyond the very day of the discharges.
In view of the foregoing observations , it will be
recommended that the complaint be dismissed.
RECOMMENDED ORDER
It is hereby ordered that the complaint be, and it is
hereby, dismissed in its entirety.