Industrial Steel Erectors, Inc.

National Labor Relations Board - Board Decisions

May 23, 1974

210 N.L.R.B. 827 (N.L.R.B. 1974)

INDUSTRIAL STEEL ERECTORS, INC. 827
Industrial Steel Erectors, Inc. and Daniel David
Nichols. Case 10-CA-10334
May 23, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 21, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief. The General
Counsel filed a brief in opposition, as well as
exceptions concerning the remedy.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Daniel
Nichols was discharged on August 16 in violation of
Section 8(a)(3) and (1) because he attempted to
enforce a collective-bargaining agreement. Because
of earlier experiences when Nichols was employed,
Respondent President Walker had requested Local
92 not to refer Nichols to any of Respondent's jobs.
However, the Administrative Law Judge, viewing as
critical that Nichols was in fact hired, attached no
significance to Walker's request though finding that
"all participants in the events of August 15 and 16
acted with knowledge of Walker's attitude toward
and instructions concerning Daniel Nichols."1 Thus
the Administrative Law Judge concluded that Ni-
chols' discharge on August 16 was discriminatory
because it was based on Nichols' attempts, after
being hired, to get an additional ironworker sent to
the job in compliance with the contract. We do not
agree in the circumstances of this case.
The Respondent has long hired through Local 92
and is apparently continuing to do so. In fact, Local
92 referrals were put on this job when it reopened on
August 17. There is no showing that discrimination
to discourage union activity was the motivation in
directing Local 92 to cease referring Daniel Nichols.
Instead the record shows that the direction was given
because Nichols was considered an unacceptable
employee due to what Respondent terms "job-
hopping." When Respondent's president learned on
August 16 that Nichols had been hired again
nonetheless, he promptly refused to have him
continue working, terming him a "troublemaker." In
view of the background here and Respondent
making clear to the Union, before this occurrence,
that it no longer wished to have this specific
employee referred, we see no basis on which to
conclude that the discharge was discriminatorily
motivated within the meaning of Section 8(a)(3),
rather than a result to be anticipated from Respon-
dent's specific instruction to the Union not to refer.
In the circumstances we find that the General
Counsel has failed to establish by a preponderance of
the evidence that Nichols was discharged for reasons
that violated the Act. Accordingly, we shall dismiss
the complaint in its entirety.2
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 in its entirety.
i Respondent contends that this finding is not entirely correct as
Foreman Graham , who hired Nichols on August 15 , did not know of the
instructions According to Walker, these instructions were given to Local
92's President Harlow, to Business Agent Thacker, and to Respondent
Superintendent George King , and were known to Nichols himself 3 to 4
months before this incident occurred . The instructions to the Union not to
refer Nichols were a consequence of his work history On two previous
occasions he and at least one other person while in Respondent 's employ
abruptly quit jobs causing expense and loss of worktime for Respondent.
Both Harlow and Thacker testified that Walker had, before this case,
complained about Nichols leaving Jobs
2 See Ritchie Industries Corporation, 204 NLRB No 39, in which the
Board affirmed an Administrative Law Judge 's Decision in dismissing an
8(a)(3) complaint where the alleged discnminatee had a poor work record
that could as well have been the reason for the discharge as his effort to be
included in the existing bargaining unit See also Pacific Maritime
Association and John A Mahoney, 140 NLRB 9 , 18, dismissing an 8(a)(3)
complaint and Pacific Maritime Association and Millon Moore, 121 NLRB
938, 940, dismissing an 8(bX2 ) complaint wherein the Respondent refused
to refer through a hiring hall for , respectively , disrupting the operation of
the hall and insubordination on the job to which referred-reasons
unrelated to union membership.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge:
The charge in this case was filed on August 17, 1973.1 The
complaint was issued on October 30 . The hearing was held
on November 27 in Birmingham , Alabama.
The issue litigated was the legality of Respondent's
closing down a job on August 16 in order to get rid of
Daniel David Nichols , the Charging Party , because
Nichols was insisting that it live up to the manning
provisions of its contract with Structural Ironworkers
Local Union No. 92 , International Association of Bridge,
Structural & Ornamental Ironworkers , AFL-CIO . For the
reasons set forth below , I find that it thereby violated
Section 8 (a)(3) and (1) of the National Labor Relations
Act, as amended.
Upon the entire record, I make the following:
i All dates are 1973.
210 NLRB No. 130
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Respondent,' an Alabama corporation, is engaged in
Birmingham, Alabama, in the business of erecting steel on
construction projects. During 1972, a representative period,
it performed services valued in excess of $50,000 for, U.S.
Pipe Company. U.S. Pipe Company is also engaged in the
construction business in Birmingham. During the same
year, it received goods valued in, excess of $50,000 directly
from suppliers located outside the State of Alabama.
H. THE UNFAIR LABOR PRACTICE
A. Facts
Daniel David is one of nine "Nichols boys"-Daniel, his
four brothers, and four nephews-who are ironworkers
and members of Local 92. Prior to 1973, Daniel worked for
Respondent on two occasions. Daniel, his brother, Thur-
mond, and another brother or nephew quit a project in
Tuscaloosa, Alabama, leaving Respondent with no help
one morning. On the other occasion, referred to in the
record as the Mayer Electric job, Daniel protested that
Respondent was using an apprentice illegally in a raising
gang. When Respondent insisted that it could use the
apprentice under the circumstances, Daniel and Thurmond
quit at midday. As a result, the job was shut down for the
balance of the day. Because of these two experiences, S. M.
Walker, president and owner of Respondent, instructed
officials of Local 92 prior to August 15 that he did not
want Daniel Nichols referred to any of his jobs. This
message had been communicated in two versions. Walker
had said that he did not want any of the Nichols boys. He
had also said he did not want Daniel or Thurmond
Nichols. All participants in the events of August 15 and 16
acted with knowledge of Walker's attitude toward and
instructions concerning Daniel Nichols.
On the morning of Wednesday, August 15, Jimmy L.
Harlow, president and assistant business agent of Local 92,
referred Daniel Nichols to Respondent at the Huffman
Baptist Church addition in Birmingham. When Nichols
arrived at the project, he was put to work by Foreman
Theo Graham. Graham is a member of Local 92. One
journeyman (Eddie Goolsby) and one apprentice iron-
worker were also on the job. Goolsby informed Nichols
that Goolsby was steward. Nichols raised with Graham the
question of whether Respondent had enough men on the
job. Nichols was referring to article 16 of Local 92's
contract with Respondent which provides, in part:
on all mobile or power operated rigs of any description
no less than four (4) men and a foreman shall be
employed unless previously agreed to by the employer
and the Union Business Agent.
Graham explained to Nichols that an ironworker named
Roland Bradbury was due back from vacation and
Graham was holding a job open for him. George King,
Respondent's superintendent, came to the jobsite around
10 a.m. for a short time. He saw and spoke to Nichols.
Nothing was said about Nichols being on Respondent's job
despite Walker's orders to the contrary. King is also a
member of Local 92. Nichols worked August 15 without
incident.
Nichols arrived for work a few minutes before the 7 a.m.
starting time on Thursday, August 16. He and Goolsby
decided to make an issue of the number of ironworkers on
the job. Goolsby was willing to let Nichols take the
initiative. They decided that Nichols would assume the
steward's mantle.
Nichols told Graham the job was one ironworker short.
Graham told Nichols to telephone King. Nichols went to a
telephone in the basement of the existing church building.
He called King. He told King that he had taken over as
steward on the job and complained that, under the
contract, Respondent had to have another man on the job.
King said that he had a call in at Local 92's hiring hall for
six men. Nichols said he would check with H. L. Thacker,
Local 92's business agent. Nichols called Thacker at home.
Thacker said he would have to check King's statement
when he got to the hall. He instructed Nichols to call him
at the hall in half an hour. Nichols went to work shortly
after 7:30 a.m. Goolsby and the apprentice had worked
without interruption since 7 a.m.
Graham telephoned King and told him no work was
getting done' on the job because Nichols was on the
telephone. King reported 'to Walker, who learned for the
first time that Daniel Nichols was working for Respondent
again. After checking with the general contractor from
whom Respondent had received the steel erection subcon-
tract on the Huffman Church job, Walker instructed King
to close the job down until Respondent could get enough
men. King went to the project.
In the meantime, a few minutes after 8 a.m., Nichols
went back to the telephone in the church basement despite
Graham's protest and called Thacker at the hall. Thacker
was in' the midst of telling Nichols that Local 92 had no
record of a call from King for six men for its various
projects when King arrived. King informed Nichols that he
was closing down the project, that Graham, Goolsby, and
the apprentice were being transferred to another job, and
that Nichols was discharged with 12 hours' pay, 8 for
August 15 and 4 for August 16. King got on the telephone
and told Thacker the same thing. Thacker protested. After
King hung up, Nichols called Thacker back, then went to
the hall. In the meantime, Thacker telephoned Walker and
protested. The upshot of their conversation was an
agreement to meet at the jobsite at 10 a.m.
Nichols, Thacker, and a number of ironworkers includ-
ing Nichols, brother, James, returned to the site on
schedule. They met Walker and King. Nichols, Thacker,
and Walker went into the area where work was being
performed so that Thacker could inspect it. Thacker told
Walker that he needed four ironworkers on the job. He
urged Walker to resume work immediately, taking Nichols
back and hiring one more man. Thacker pointed out that
Nichols was only trying to do the steward's job of policing
the contract. Walker adamantly refused to take Nichols
back under any circumstances because he was a trouble-
maker. He made a derogatory remark about the "Nichols
boys" in the presence of James Nichols. James, who had
worked for Respondent on several occasions without
INDUSTRIAL STEEL ERECTORS, INC. 829
incident , took offense . Walker apologized and said he had
no objection to James , his animosity ran only to Daniel
and Thurmond Nichols. That afternoon Local 92 referred
James Nichols to the Huffman Church job, starting Friday
morning , August 17. As events turned out , James did not
actually go to work there.
Respondent shut down the Huffman Church project for
only 1 day. Graham, Goolsby , and the apprentice worked
August 16 on another project. They returned to Huffman
Church when Respondent resumed work there on Friday
morning, August 17. Daniel Nichols went to work for
another contractor on Monday morning, August 20. He
was referred to that job by Local 92' s hiring hall.
B. Analysis and Conclusions
There is no dispute about the above facts , or, for that
matter, about the conclusionary fact that Respondent
discharged Daniel Nichols and has since refused to
reinstate him because he sought to enforce Local 92's
contract with Respondent . Rather , Respondent advances
three defenses . None has any merit.
First , Respondent contends this case constitutes an
attempt by the National Labor Relations Board to enforce
its contract with Local 92. This argument misconceives the
nature of this proceeding . It is concerned only with
whether Daniel Nichols has been discriminated against
within the meaning of the Act and, if so , what must be
done to remedy the situation . It is in no way concerned
with whether Respondent uses 4 men and a foreman, or,
for the matter, 400 men and a foreman, to erect steel.
Second , Respondent contends that the situation only
arose because Local 92 ignored its orders not to send
Daniel Nichols to any of its jobs. The point is well taken.
Unfortunately, it is without legal significance . There is no
issue presented in this case as to the legal effect of Walker's
instructions . From a legal point of view , a much more
interesting problem would have been posed if Nichols had
filed a charge because Local 92 had acceded to Walker's
instructions or if , as the parties to the contract appear to
agree Respondent had the right to do , it had turned
Nichols away with 2 hours ' showup pay when he arrived
for work on the morning of August 15. However, neither of
these events occurred . What did occur was that Nichols
was hired by Respondent and went to work in a normal
manner . The fact that Walker did not learn Nichols had
been hired contrary to his orders until Nichols started
making "trouble" on the morning of August 16 is
irrelevant . Nichols' hiring became a fail accompli when
Foreman Graham put him to work on the morning of
August 15. The fact that Graham and Superintendent
King, the other supervisor who had knowledge of Nichols'
hiring before August 16 , were members of Local 92 does
not make them any the less agents of Respondent, nor is
there any evidence of a plot between Local 92 on the one
hand and Graham and/or King on the other to defy
Walker and frame Respondent . The simple answer to
Respondent 's second defense is that Nichols was hired.
The issue posed by this case relates to his firing , not his
hiring.
Third, Respondent argues that the discharge of Nichols
was privileged because Nichols created an illegal work
stoppage on August 16. It relies on the complaints and
grievances provision of its contract with Local 92 which
reads , in part:
There shall not be any slow downs , or work stoppages
individually or collectively , while complaints or griev-
ances are being adjusted . Any and all Employees who
violate this section may be discharged.
However , there is no evidence that any work stoppage took
place on the morning of August 16. Goolsby and the
apprentice never stopped working until King closed the
project down . As for Nichols individually , his first trip to
the telephone , from which he returned and went to work as
soon as he had completed the necessary calls, was made
with Graham 's permission, in fact, at Graham 's invitation.
The second trip, while despite Graham 's protest, was a
necessary extension of the chain of events Graham had
permitted to be set in motion with the first trip and a part
of Nichols' protected efforts to carry out the duties of a
steward.
Respondent discharged Daniel Nichols on August 16
because he attempted to enforce a collective -bargaining
agreement. In so doing, it violated Section 8(aX3) and (1)
of the Act.
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Industrial Steel Erectors , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Structural Ironworkers Local Union No. 92, Interna-
tional Association of Bridge , Structural & Ornamental
Ironworkers , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Daniel David Nichols on August 16,
1973, for attempting to enforce a collective -bargaining
agreement , Respondent has violated Section 8(a)(3) and (1)
of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practice found , remedy it by offering
reinstatement to Daniel David Nichols and making him
whole for earnings he lost as a result of the discrimination
against him, and post the usual notice . However , it is clear
from the record that, by the exercise of suitable diligence,
Nichols could have been employed as early as Friday,
August 17 , through Local 92's hiring hall on another job
with the same terms and conditions of employment as the
job from which he was discharged by Respondent and did,
in fact, begin such a job on Monday , August 20. Therefore,
the sum required to make him whole is the 4 hours' pay he
lost on August 16, with interest at 6 percent per annum as
prescribed in Isis Plumbing & Healing Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact,
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions of law , and the entire record in this case , and [Recommended Order omitted from publication.]
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: