M. W. Kellogg Constructors, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1987

284 N.L.R.B. 506 (N.L.R.B. 1987)

506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
M. W. Kellogg Constructors, Inc. and Gilbert P.
Smith
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada Local 250, AFL-
CIO and Gilbert L. Smith. Cases 21-CA-21330
and 21-CB-8117
26 June 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 14 December 1984 the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding 1 in which it found that the Respondent
Employer violated Section 8(a)(3) and (1) of the
Act by refusing to assign unscheduled overtime
work to nonmembers of the Respondent Union
(travelers) employed on the Shell Oil Project in
Carson, California, from 1 March through 31 May
1982, and by laying off 129 travelers because they
were not members of the Respondent Union. The
Board also found that the Respondent Employer
violated Section 8(a)(1) of the Act by informing
employees on the Shell Oil Project that travelers
could not be assigned overtime work and would be
laid off from work prior to the shutdown phase of
the project because they were travelers and not
members of the Respondent Union; by informing a
traveler that if he transferred his membership into
the Respondent Union he would be eligible to
work the shutdown phase of the project; by telling
a traveler that the reason for his layoff was that the
Respondent Union had given instructions that all
the travelers were to be laid off; by telling a travel-
er that the reason the traveler and other travelers
could not work overtime was due to instructions
from the Respondent Union; and by telling travel-
ers that it was the policy of the Respondent Union
that the Respondent Employer could not assign the
travelers any overtime work.
The Board further found that the Respondent
Union violated Section 8(b)(2) and (1)(A) of the
Act by causing or attempting to cause the Re-
spondent Employer to violate Section 8(a)(3) and
(1) of the Act by refusing to assign unscheduled
overtime work to travelers, and by laying off trav-
elers because they were not members of the Re-
spondent Union. The Board also found that the Re-
spondent Union violated Section 8(b)(1)(A) of the
Act by threatening an employee with loss of em-
ployment if he contested the Respondent Employ-
273 NLRB 1049 (1984).
er's unlawful policy of laying off travelers because
of their nonmembership in the Respondent Union;
by telling employees checking in at the jobsite that
they would not be assigned unscheduled overtime
because the Respondent Union's members would
do such work; by telling an employee that he had
been assigned overtime because the foreman mis-
takenly thought he was a member of the Respond-
ent Union; and by refusing to permit applicants for
employment who were registered for work at its
exclusive hiring hall to examine its dispatch books.
On a petition for review and a cross-application
for enforcement of the Board's Order against the
Respondent Employer, and a Board application for
enforcement of the Board's Order against the Re-
spondent Union, the United States Court of Ap-
peals for the Ninth Circuit granted the petition for
review, denied enforcement, and remanded the
case to the Board. The court remanded the case to
afford the Board the opportunity to make appropri-
ate fmdings whether the General Counsel satisfied
the burden of demonstrating that the statements
relied on by the Board in finding 8(a)(3) and (1)
and 8(b)(2) and (1)(A) violations signified prohibit-
ed discrimination rather than innocent employment
decisions. 2 The court noted that neither the Board
nor the judge made any explicit finding about the
effect of the work force composition on the mean-
ing of the words "traveler," "local hand," or
"Local 250 member" on this particular job. The
court stated that if the terms "local hand" and
"Local 250 member" were synonomous with book
I status, "the situationally ambiguous statements
relied upon by the AUJ and Board might be insuf-
ficient to demonstrate discrimination on account of
local union membership." 806 F.2d 1435, 1442 (9th
Cit. 1986).
The Board thereafter accepted the court's
remand and invited the parties to submit statements
of position. The General Counsel and the Respond-
ents have filed statements of position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
2 The statements made by Kellogg foremen and umon stewards to
travelers indicated that local hands or Local 250 members would receive
unscheduled overtime but travelers would not, and that travelers would
be laid off before local hands The Respondents contend, however, that
these statements were merely a shorthand form of expression describing
the practical effect of employment decisions conforming to a valid four.
book dispatch system. The book system granted priority in dispatch in
the following order. (I) journeyman pipefitters with 3000 hours of em-
ployment in Local 250's area (II) journeyman pipefitters with 3000 hours
in the area covered by the local agreement, (III) journeyman pipefitters
with 3000 hours in California, and (IV) journeyman pipefitters with less
than 3000 hours regardless of the place of employment. The court found
that the General Counsel had the burden of disproving that the Respond-
ent Employer relied on the four-book system m making layoff and over-
time decisions.
284 NLRB No. 61
M. W. KELLOGG CONSTRUCTORS 507
Upon reconsideration of the record as a whole,
including the court's decision, which the Board ac-
cepts as the law of the case, the Board has decided
to reaffirm its previous Order for the following
reasons.
In its previous decision the Board specifically re-
jected the Respondent's 8(f)(4) defense. Supra 273
NLRB at 1050 fn. 8. The Respondents contended
that the layoff and overtime policies giving prefer-
ence to local members over travelers were a per-
missible application of the four-book system and
that the local members were lawfully favored
based on the permissible criteria of length of serv-
ice with the company, in the industry, or in the
particular geographical area. The Respondents
argued that when the Respondents' officials stated
that local members would be favored over travel-
ers, they were using those terms as shorthand for
book I and books II-IV, respectively, and were
merely indicating the fact that book I registrants
were being favored for overtime and layoff pur-
poses. The Board concluded, however, that in
granting preference to local members over travel-
ers, the parties did not, in fact, rely on the employ-
ees' book dispatch priority, but instead relied only
on the employees' union membership status. The
Board found that the fact that book I consisted
mostly of locals and books II-IV consisted of trav-
elers does not make the Respondents' decision-
making on the basis of union membership lawful.
Upon reconsideration, we again reject the Re-
spondents' 8(f)(4) defense and reaffirm our previous
finding that the Respondent Employer's layoff and
overtime decisions were, in fact, based on imper-
missible union membership considerations rather
than book dispatch priority. Although the record
indicates that book I was composed almost entirely
of Local 250 members and books II, III, and IV
were composed entirely of travelers, 3 we cannot
find that under the circumstances of this case the
terms "local hand," "Local 250 member," and
"traveler" were merely shorthand modes of expres-
sion evidencing no intent to discriminate on the
basis of local union membership as such. Despite
the composition of the work force, it is clear from
the record as a whole that the term "traveler"
means a nonmember of the Respondent Union and
that the term was used by the foremen in that
sense. The Respondent Employer's construction su-
perintendent Bertrand defmed traveler as a
"Wourneyman that's brought in on a job that does
not belong to the. . . Local that we are hiring out
of" and foreman Barnes defined traveler as
a The list of those employees laid off in April and May 1982 due to
reductions in force indicates that book I was composed of all locals plus
one traveler. Books II-IV consisted of travelers.
"[s]omebody that belongs to a local other than
Local 250." When the foremen selected employees
for layoff or overtime, the foremen looked only at
the employees' union . membership status. There
was no evidence that a foreman ever asked an em-
ployee before layoff which book he was in or
checked with the hiring hall to ascertain the em-
ployee's book status. Nor did the foremen ever
consider the hours an employee worked on the
Kellogg job itself to determine if the employee's
book may have changed since dispatch and wheth-
er he would be eligible for book I. For example,
even though traveler Fernando Moore would have
qualified for book I at the time of his layoff be-
cause of his hours on the Kellogg job, he was, nev-
ertheless, laid off with the other travelers. This is
an indication that length of service was not the
actual criterion being used for layoff selection.4
There are other indications that the terms "trav-
eler" and "local" were not used as innocent short-
hand for book dispatch priority but indicated dis-
crimination on the basis of union membership.
Foreman Stuart told traveler Cangi that he would
receive overtime if he transferred into Local 250.
Such a statement clearly indicates that union mem-
bership rather than book dispatch priority was the
critical factor which concerned the foreman.
Furthermore, the judge found that Paul Foster, a
book II traveler, was not laid off with the other
travelers prior to the shutdown phase of the
project because the foremen mistakenly thought he
was a local. 5 The evidence supports this finding. In
addition, the Respondent Union's steward, Richard
Wareham, told a book II traveler, Michael Cangi,
that the reason he had been assigned overtime was
that the foreman mistakenly thought Cangi was a
member of the Respondent Union. If the foremen
had based their decisions on book priority, they
would have ascertained that Foster was on book II
and would have laid him off, and Cangi would not
have received overtime.
We find from the overall context and the record
as a whole that, despite the work force composi-
tion which shows a close but not complete identity
between book I and membership in the Respondent
Union, the statements by foremen and union offi-
cials using the terms "traveler," "local hand," and
"Local 250 member" refer to union membership
status and not book dispatch priority, and that ev-
eryone on the job understood them as such. We be-
lieve that the statements indicating preference for
4 After his layoff Moore was placed on book I after verifying his
hours.
5 The judge discredited General Foreman Cratsenburg's testimony that
Foster was not laid off because the foremen mistakenly believed he was
on book I.
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
locals over travelers clearly demonstrate discrimi-
nation on the basis of local union membership
status and are not innocently descriptive words de-
monstrative of no intent to discriminate with re-
spect to local union membership.
The court stated that the "fact that Kellogg
could have made substantially the same overtime
and layoff decisions pursuant to the four-book
system is irrelevant if in fact the decisions were
made on the basis of other, prohibited consider-
ations such as union membership." 806 F.2d at
1440. The relevant question, according to the
court, is not whether the Respondents could have
applied the four-book system to layoffs and over-
time, but whether they actually did. If the Re-
spondents actually did discriminate on the basis of
union membership, the court stated that "they
cannot immunize their conduct by citing section
8(f)(4) and the four-book system of hiring prefer-
ence as a post hoc rationalization for prohibited
conduct." 806 F.2d at 1440.
We find that the General Counsel met the
burden of disproving reliance on the four-book
system. We find that the Respondents did, in fact,
rely solely on union membership status for the
layoff and overtime decisions. Accordingly, we re-
affirm our previous Decision and Order- in its en-
tirety.
ORDER
The National Labor Relations Board reaffirms its
Order previously issued on 14 December 1986 and
orders that Respondent M. W. Kellogg Construc-
tors, Inc., Houston, Texas, its officers, agents, suc-
cessors, and assigns, and Respondent United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 250, AFL-CIO, Garde-
na, California, its officers, agents, and representa-
tives, shall take the action set forth in the Order
(273 NLRB 1049 (1984)).