Huber, Hunt & Nichols, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 201 (N.L.R.B. 1970)

HUBER , HUNT & NICHOLS, INC 201
Huber, Hunt & Nichols, Inc. and International
Union of Operating Engineers , Local 66, A, B, C,
D & R, AFL-CIO. Case 8-CA-5601
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
Youngstown, Ohio, on January 6, 1970, on com-
plaint of the General Counsel and answer of Huber,
Hunt & Nichols, Inc., Respondent herein, some-
times called the Company.' The issue litigated is
whether Respondent violated Section 8(a)(3) and
(1) of the Act2 in its treatment of Maynard
Flanagan. After the hearing the General Counsel
and Respondent filed helpful briefs, which have
been carefully considered.
Upon the entire record and my observation of
the witnesses, I hereby make the following:
On April 14, 1970, Trial Examiner Alba B. Mar-
tin issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices 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, and the Respon-
dent filed a brief in answer thereto.
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
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 exceptions and
briefs, 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 orders that the complaint
herein be, and it hereby is, dismissed.
' The General Counsel's exceptions directed to the credibility resolu-
tions of the Trial Examiner are without merit The Board will not overrule
the Trial Examiner 's resolutions as to credibility unless a clear preponder-
ance of all relevant evidence convinces us that they are incorrect On the
entire record , such a conclusion is not warranted herein Standard Dry Wall
Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) In agreeing with
the Trial Examiner that Flanagan was not a completely credible witness,
and that his testimony regarding alleged remarks by Respondent 's Super-
visor Kamp as to the effect of Flanagan 's joining the Union and how
Flanagan would have fared if he had not joined the Union should be
discounted , we find it unnecessary to, and do not, rely upon the Trial Ex-
aminer's alternative findings that Kamp 's remarks were in any event in-
nocuous
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner : This case, with
all parties represented , was heard before me in
184 NLRB No. 23
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Indiana corporation with its prin-
cipal office and place of business in Indianapolis,
Indiana , is engaged as a general contractor in the
construction of industrial and commercial facilities.
The events herein occurred at the project in Lord-
stown, Ohio, where Respondent is engaged in the
construction of a Fisher Body Stamping Plant under
contract with the Fisher Body Division of General
Motors Corporation. During each of the calendar
years 1967 and 1968 Respondent received at the
project goods valued in excess of $50,000 directly
from points outside of Ohio. Respondent admitted
and I find that Respondent is now, 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. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers,
Local 66, A, B, C, D & R, AFL-CIO, herein called
the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent Was Not Proven To Be Hostile
Towards the Union
The Union began an organizational campaign
among Respondent's engineers in about the middle
of February 1969. Respondent's engineers were
members of survey crews, classified on the election
eligibility list as field engineers (party chief), rod-
men, and instrumentmen . On March 25, 26, 27,
and 31 the Union conducted organizational picket-
ing and an organizational strike, and during those
days there was no work done. Many, or most, of the
survey crews, including all the party chiefs but one,
were on the picket line during those days.
On April 8, 1969, the Union filed a petition for
an election . On April 23 Respondent, acting
The Union filed the charge on September 26, 1969
2 "The Act " refers to the National Labor Relations Act, as amended, 29
U S C Sec 151, et seq
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through Vice President Paul E. Muehlenbein, en-
tered into a consent election agreement with the
Union. On May 5 Respondent furnished an eligibili-
ty list for the election, consisting of 19 names. The
Union won the election, held on May 12. Respon-
dent bargained with the Union, and a contract was
achieved in late August or early September which
granted increases retroactive to the date of the
election.
Upon the above testimony and in the absence of
any substantial evidence showing company hostili-
ty, I find that Respondent accepted the practices
and procedures of collective bargaining and was
not hostile to the Union.
B. As a "company man" Flanagan Had a Status
Separate From the Other Party Chiefs
Maynard Flanagan worked for Respondent at the
project as a party chief from January 15, 1969,
until his termination on September 12, 1969.
Although a party chief was not a supervisor3 the
Company regarded Flanagan as a "company man,"
a concept not provided for in the Act but important
to the resolution of the issues herein. The basic and
controlling question is whether Respondent treated
Flanagan as it did because he "joined" the Union
and to discourage membership in the Union, or
possibly because he didn't live up to expectations as
a "company man."
Although "company man" was nowhere defined
in the record, his attributes showed that he was a
part of the company cadre that moved from project
to project whereas other employees were hired lo-
cally for a specific project. A company man
received his paycheck in an envelope directly from
company headquarters in Indianapolis a day ahead
of the local employees, who were paid "in a bunch"
by the payroll clerk. A company man was salaried
in that he was guaranteed he would receive pay for
40 hours a week regardless of the weather or of
picket lines which barred work, whereas the local
employees were hourly paid only for the hours they
actually worked. A company man was covered by
Respondent's insurance program and local em-
ployees were not. A company man received a 2-
week paid vacation after he was a company man for
12 months. There was some indication that a com-
pany man received a Christmas bonus. And in
Flanagan's case, at least , a company man had his
moving expenses from project to project paid by
the Company. As a witness Flanagan knew of no
hourly paid men whose moving expenses were paid
by the Company.
Flanagan did the same work as the several other
party chiefs, but his status was different from theirs
in that he was a company man and they were not,
with possibly an exception or two. Respondent did
not include Flanagan on the eligibility list it sup-
plied for the election, and the Union did not get
Flanagan's name added to it although he had signed
a union authorization card on February 26. Party
chiefs were included in the agreed-upon unit, and
the hourly paid party chiefs were included on the
eligibility list and voted.
Flanagan understood that he had a different
status from the other party chiefs, or most of them,
and he accepted the emoluments of that status. He
was paid for rainy days when there was little or no
work done. He sought a vacation when he learned
that Kamp was getting one even though he knew
the hourly paid party chiefs were not then getting
vacations. Without protest from him, insofar as-the
record showed, his contribution to the company in-
surance program was deducted from his checks. He
sought and accepted having the Company move his
house trailer across the State from Cincinnati to
Lordstown when he negotiated the job. Also,
although he signed a union authorization card on
February 26 he did not picket with the others in
March and he accepted his guaranteed pay for the
picketed days when there was no work done. In ad-
dition he didn't vote at the election in May and
didn't present himself at the polls and try to vote.
Flanagan testified he would not have come to the
Lordstown project without the guaranteed pay ar-
rangement.
Also, an objective evaluation by a Government
agency found a significant difference in status
between the company men (the salaried engineers)
and the hourly paid engineers. In about February
1969, as a result of a wage-hour investigation under
the Fair Labor Standards- Act, the hourly paid en-
gineers, including party chiefs, were given a
retroactive correction of time and a half for all over
40 hours per week, and thereafter were paid on
that basis. (Apparently theretofore they had
received straight time pay for overtime.) Flanagan
and the other company men were unaffected by
this action.
In addition to all the above, Project Manager
Vaughn learned by telephone from the Company's
"front office" in Indianapolis that Flanagan, then in
Cincinnati as an hourly paid man, wanted to come
to Lordstown as a salaried man with all the fringe
benefits of a company man; and in Flanagan's hir-
ing interview Vaughn told him, according to
Vaughn's credible and credited testimony, what ar-
rangement the Company would make with him, and
Flanagan said "it's a deal." The deal was that
Respondent would move Flanagan's trailer from
Cincinnati to Lordstown, would put him on a
guaranteed salary of $215 a week (in Cincinnati he
earned $4.75 an hour which, at 40 hours, came to
$190 a week), and would give him the fringe
benefits of the company man.
' Party chiefs had no power to hire, fire , suspend, layoff, recall , or effec-
tively to recommend such At most they were leadmen of a survey crew of
two or three persons
HUBER , HUNT & NICHOLS, INC.
In Lordstown Vaughn had five company men,
three of whom, Kamp, Kelly, and Barnett, were su-
pervisors. The other two, Parker and Flanagan,
were party chiefs and were not supervisors.
From all the above, and upon the preponderance
of the credible evidence in the entire record, I con-
clude that at all times until Flanagan finally in-
dicated to Respondent in early September that he
wanted to cast his lot with the Union, he accepted
his status as a company man and gave Respondent
every reason to believe that he accepted it.
C. Flanagan "goes union" To Get a Retroactive
Check
Flanagan cast his lot with the Union after the
contract between the Union and Respondent had
been negotiated and the sizeable amount of the
retroactive increases had become known.4 On the
same occasion when the hourly paid members of
the survey crews received their "retroactive
checks," (and Flanagan did not), Flanagan paid an
initiation fee to the Union and 3 months' dues in
advance and began an effort to get a retroactive
check for himself. This occurred on September 3,
1969. He discussed the matter with the union
representative, and with Project Manager Vaughn.
Vaughn, who by his demeanor impressed me as a
credible (though not very articulate) witness,
credibly testified that on about September 5
Flanagan told him that he was getting pressure from
the Union to join the Union. Vaughn replied that
that was his prerogative; that he would have to
make up his mind; that "you should have made it
up 3 months ago when everybody else did." The
following morning Vaughn talked to the union busi-
ness agent, Malone, telling him, "We can't go both
ways." Malone replied, "I want my man to get
paid." Vaughn replied, "Well, you understand what
we have done up to this point." Malone said, "You
satisfy Maynard (Flanagan) and we will be
satisfied." Vaughn then talked with his "manage-
ment" in Indianapolis and, was told to "make the
settlement" with Flanagan. Vaughn then directed
the accounting department to figure out what
Flanagan would have earned as an hourly paid man
since the election, that is, to put Flanagan's wage
structure on the same basis as the hourly paid
men's under the retroactive arrangement in the
contract with the Union. Vaughn added that they
should deduct from Flanagan's wages the time after
the election he was paid during strikes and picket-
ing as a salaried man for which he would not have
been paid as an hourly paid man because none of
them crossed any picket line or worked on such
days. The rainy day hours for which he had been
paid were not deducted, however. (This latter fact
does not change any conclusions reached herein.)
' The retroactive increases meant the hourly paid party chiefs earned
$1,420 more between the election on May 12 and the end of August than
Flanagan did
203
Vaughn also had the accountant deduct Respon-
dent's cost in moving Flanagan's trailer across Ohio
from Cincinnati to Lordstown, which it did for him
at his request when he wanted to become a salaried
company man and would not have done for him as
an hourly paid man.
On September 9 Vaughn presented the accoun-
tant's one-page "settlement" account to Flanagan
including the deductions stated above. Vaughn ex-
plained the settlement to Flanagan and Flanagan
accepted it, said it was satisfactory, and signed it
just under a statement at the bottom reading as fol-
lows:
I, Maynard Flanagan, do hereby accept the
amount of $741.66 as full and final settlement
of backpay due me from the beginning of my
employment on the Fisher Body Stamping
Plant, Lordstown, Ohio. No further claims will
be registered.
There was no coercion upon Flanagan to get him to
sign this. Flanagan then received a check for
$741.66 which he would not have received had he
remained a salaried company man.5
The General Counsel contended that these
deductions by Respondent were a violation of Sec-
tion 8(a)(1) of the Act.
Flanagan testified that in explaining the deduc-
tions to him,
Mr. Vaughn said that they went through a
great deal of expense to move me up here and
put me on a guarantee of 40 hours and he
didn't feel the company should have to pay
moving expenses and that I couldn't be in the
union and also in the company.
Respondent's defense, persuasive in the light of
the entire record, was that in deducting the moving
expenses and the picketing hours Respondent was
simply trying to "unwind" its arrangement with
Flanagan whereby he became a salaried company
man, and was trying to put him as nearly as possible
on a par with the hourly paid men as of the con-
tract retroactive date, the election date. Respon-
dent urged, persuasively on the entire record, that
the deductions were made not because Flanagan
joined the Union, but because he was a company
man, and to preclude discriminatory treatment in
Flanagan's favor; so that Flanagan would not have
received more than the other company men as well
as more than the union men. Had the Company not
"unwound" the arrangement or rolled back
Flanagan's pay status to the retroactive date,
Respondent would have been permitting Flanagan
to reap a reward for his dilatoriness and vacillation
in making up his mind and his deceptive behavior
towards Respondent in the meantime. As has been
seen above, from the beginning of his employment
in Lordstown until early September, a period of
nearly 8 months, Flanagan had behaved toward
5 From the $1,420, $442 was deducted for moving expenses and $236
was deducted for hours Flanagan had been paid but had not worked
because of strikes and picketing
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent like a company man and had given the
Company the impression that he was staying with
the Company and not going into the Union. When
the subject of the Union had come up in his discus-
sions with his supervisors , Flanagan had talked as
though he expected them to make the decision as to
whether he should go with the Union or stay with
the Company-although he had already signed a
union authorization card as early as February 26.
Flanagan 's testimony , like his behavior towards
Respondent,, was at times evasive , frequently un-
clear ,_ and in large part incredible . Especially in-
credible was his testimony about his own motives
and reasons for actions . Throughout his testimony
he was obviously seeking to equate his status with
that of the hourly paid party chiefs even though he
knew the situations were not equatable since he
had benefits as a company man that the hourly paid
men did not have.
The General Counsel contended that a question
attributed to Vaughn by Flanagan's testimony was
unlawful interrogation . Flanagan testified that at a
meeting with Vice President Muehlenbein present
Vaughn asked Flanagan , "Maynard , how come
you're pushing for the Union?" The rest of
Flanagan 's testimony about this alleged conversa-
tion shows that Flanagan was referring to his Sep-
tember 5 conversation with Vaughn set forth
above . Muehlenbein , who was not regularly in
Lordstown , was not present at this meeting
although , he had been there earlier . In the light of
the entire record I do not credit Flanagan's
testimony as to this alleged question. Further, the
alleged question makes no sense in the context of
that conversation with Vaughn , since Vaughn knew
of the contract settlement the Company had al-
ready made with the Union and knew that Flanagan
had not in any sense been a "pusher" for the
Union.
D. The Termination of Flanagan
Project Manager Vaughn is in charge of building
a plant for General Motors Corporation, which is a
large responsibility . His testimony revealed that he
works closely with his supervisors in the Company
in Indianapolis . At the project he holds monthly
meetings to determine , among other things, his
manpower needs in the future. Present at these
meetings are his general superintendent, superin-
tendents , at least one of whom has been a superin-
tendent for 10 years, all the general foremen, the
"coordinators"; the "people that direct that project
for me ." When a job gets to a certain stage,
Vaughn testified, "this review happens every
week."
At such a meeting held about the middle of Au-
gust it was determined that the survey aspect of the
work was diminishing and that they could begin to
release the survey engineers, including most of the
salaried engineers . Vaughn reported this judgment
to the "front office" and indicated he could soon
release _"three company men" and begin to get
along with " local people " as far as engineers were
concerned . Of the 20 or so survey engineers
Vaughn credibly testified he knew only 5, his "five
keymen " including Flanagan . Pursuant _to this busi-
ness judgment , not related to union activity, one of
the five was released - August 29 , Flanagan was
released September 12, a third was released Oc-
tober 3 , and, a fourth was released at the end of
December . The record does not reveal how many
hourly paid party chiefs , rodmen , and instrument-
men were terminated , or when . Vaughn intended to
complete the survey work with - them. -
Vaughn credibly testified , though elliptically, that
he tried to get each of the four company men, in-
cluding Flanagan , assigned to some other company
project , but succeeded as to only two . He testified
that a week before Flanagan left, Vaughn tried to
get him another assignment with the Company but
without success.
Flanagan testified on direct examination that
Kamp , the supervisor who on September 12 told
him he was being laid off, when asked the reason,
replied,
I don 't know , there is nothing I can do. We are
going to lay you off today.... If you hadn't
joined the union you would have been here
until the job was over and gotten a $500
Christmas bonus plus a vacation and possibly
transferred to another job.
By the time of Flanagan 's cross-examination this al-
leged reason was changed in significant detail. On
cross-examination Flanagan testified,
The statement was made to me that if I
hadn 't joined the union I would have been
there until the job was over and I would have
received a Christmas bonus and vacation pay
and transferred to another job.
Thus by cross-examination the $500 Christmas
bonus had become a Christmas bonus , the vacation
had become vacation pay, and the possible transfer
to another job had become a certainty . The fuzzi-
ness and lack of precision in Flanagan's testimony,
of which this is an example, is another reason why I
found him not a completely credible witness.
Assuming Kamp expressed himself along the lines
of Flanagan 's testimony, and assuming Kamp was in
a position to know why Flanagan was being ter-
minated (which the record does not surely
establish ) it is obvious in the light of the . entire
record that Kamp was saying not that Flanagan was
losing out because he joined the Union, but
because he had chosen to abandon his status as
company man with its fringe benefits . There was
nothing antiunion in Kamp's alleged remarks or in
Kamp , insofar as the record showed , and nothing
antiunion proven about Vaughn or, insofar as the
record showed , about the Company . Respondent
was not hostile to the Union , as has been seen
above , and in any case the record is lacking in
proof that Respondent discriminated against
Flanagan to encourage or discourage activity or
HUBER, HUNT
membership in the Union , which is required for a
Section 8(a)(3) violation.
The General Counsel relies heavily upon the fact
that Flanagan was separated 3 days after his "settle-
ment" with Vaughn. Given a different record, given
substantial proof of hostility, there would arise from
this timing a supportable inference in support of the
complaint. The record does not show precisely
when the decision to separate Flanagan was made
or by whom. He may have been selected as the
second company man to go rather than the third or
fourth, because he was lower in company rank than
number three, Barnett, and number four, Kelly; or
& NICHOLS, INC. 205
because Vaughn felt he was let down by Flanagan
as one of his five " keymen" among the survey en-
gineers. In any case the record does not support a
finding that Flanagan was discharged because he
joined or assisted the Union and to encourage or
discourage membership in the Union. Respondent
did not consider him a part of the union movement,
nor was he.
Upon the preponderance of the credible
evidence in the entire record considered as a .
whole, I recommend that the complaint be, and it
hereby is, dismissed in its entirety.