Morrison-Knudsen-Strabag

National Labor Relations Board - Board DecisionsJun 20, 1973

204 N.L.R.B. 312 (N.L.R.B. 1973)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morrison-Knudsen-Strabag, a Joint Venture of Morri- son-Knudsen Company, Inc. and Strabag Bau, A.G. and James Bogema . Case 7-CA-9543 June 20, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 30, 1973, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 at- tached Decision in light of the exceptions and brief and has decided to affirm the Administrative Law Judge's rulings at the hearing but, for the reasons set forth below, has decided to dismiss the complaint in its entirety. The General Counsel alleges that Respondent vio- lated Section 8(a)(3) of the Act by failing to recall James Bogema from seasonal layoff status because of his prelayoff protected concerted activities as a union steward. Respondent alleges that the reason for not recalling Bogema was not any protected union activi- ty, but Respondent's good-faith belief that Bogema instigated "wobbles," i.e., slowdowns or temporary work stoppages by various employees at the jobsite, which violated the collective-bargaining agreement's no-strike clause. In analyzing the evidence in this case, the Adminis- trative Law Judge appears to have placed on Respon- dent the burden of proving that Bogema instigated the wobbles. After citing substantial evidence adduced by Respondent tending to show Bogema's complicity in causing the wobbles, the Administrative Law Judge admits that suspicion is cast on Bogema's activities, but reasons that "mere suspicion is not enough upon which to ground a finding of the commission of unfair labor practices." He concludes from a preponderance of the evidence that while wobbles did occur, "it was not established that Bogema was the instigator of these acts." This analysis is erroneous. When evidence of its honest belief of misconduct by a dischargee is ad- duced by a respondent as a defense to an 8(a)(1) or 8(a)(3) allegation, the General Counsel has the burden of proving that the dischargee did not in fact engage in the misconduct.' Applying that principle to this case, the Administrative Law Judge should have placed on the General Counsel the burden of proving that Bogema did not instigate the wobbles rather than placing on Respondent the burden of proving that Bogema did in fact cause them. It is Respondent, not Bogema, who is charged with committing unfair labor practices. The Administrative Law Judge does not make a specific finding of fact that Bogema did not instigate the wobbles. Bogema testified that he never participated in, or aided in the planning of, any form of a wobble, or threatened to do so. And there was corroborating tes- timony from fellow employees Miller and Demmon, Union Business Agent Sawyer, and Respondent Su- pervisor Bryers to the effect that while wobbles did occur, these men were not aware that Bogema had any part in planning them. It should be noted, howev- er, that the Administrative Law Judge never specifi- cally credits Bogema's denial that he instigated the wobbles, nor does he, as noted earlier, make a specific fact finding consistent with Bogema's denial. However, there is the testimony of Respondent Su- perintendent Jenson, credited by the Administrative Law Judge, that on one day in August 1971 Bogema told him that if he (Jenson) persisted in working on construction equipment, a task reserved to rank-and- file employees by the current collective-bargaining agreement, Bogema would shut down the job. Later that day, a shutdown did occur, although Jenson was unable to testify to seeing or hearing Bogema give any orders to the men to stop working. Moreover, there is the uncontroverted testimony of Respondent Super- intendent Frasier, which the Administrative Law Judge does not discuss at all, that on the day of one of the August 1971 wobbles, he saw Bogema at the construction site driving from one work station to another in his pickup truck, after which each work station suddenly began reporting slowdowns among its employees. Under all the circumstances, especially the threat by Bogema that he would shut down the job and the subsequent shutdown later that day, we are not satis- fied that the General Counsel has met the burden of establishing that Bogema did not commit the acts of misconduct for which Respondent refused to recall Bogema . Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein 1 Rubin Bros. Footwear, Inc, and Rubin Brothers Footwear, Inc., 99 NLRB 610, M R & R Trucking Company 178 NLRB 167 204 NLRB No. 48 MORRISON-KN UDSEN-STRABAG be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD J . SEFF , Administrative Law Judge : This case came on for hearing before me on September 27 and 28, 1972,' in Ludington , Michigan . The amended complaint issued on August 24 , 1972, based on a charge filed on May 22 and an amended charge filed on July 10. The charge alleged that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(I) and 8(a)(3) of the Act in that it refused to recall to its employment James Bogema . Respondent denies the commission of the unfair labor practices alleged but admits allegations of the com- plaint sufficient to support the assertion of jurisdiction un- der current standards of the Board (inflow of over $100,000 in the past calendar year). The answer further admits that the Union , Local Union No. 324, International Union of Operating Engineers , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. FINDINGS AND CONCLUSIONS I THE ALLEGED UNFAIR LABOR PRACTICES The Facts The Company, Morrison-Knudsen-Strabag, is a joint venture engaged in a project of applying asphalt paving to the perimeter slopes of a storage reservoir that is to be used in connection with a thermal electric power generating plant under construction for the Detroit Edison and Consumers Power Company. The Charging Party, James Bogema, came from Kalama- zoo, and was referred by the Union for a job with the Respondent. Prior to this job Bogema has a 25-year history of employment as an operating engineer. While he was in Kalamazoo he was employed as a business agent for Local 324. He started with the Company as an oiler and had a succession of jobs, the last one being a winch operator. The project employs about 130 operating engineers . In August 1971 he was appointed a union steward. From the outset of his functioning as a union steward Bogema was zealous in the performance of his union duties. He testified and was corroborated by his supervisor, the master mechanic, that he made a great many complaints concerning working conditions on the job. His immediate supervisor, Master Mechanic Wayne Bryers, acted in con- cert with Bogema and frequently accompanied him to top supervision in support of Bogema's grievances. The site of the Company's operation is located close to Lake Michigan. Some of the operators did their work on a ridge located about 230 feet above the lake. The wind frequently blows ' All events took place in 1972 unless otherwise indicated. 313 at approximately 40 miles per hour and, on a cold day, the chill factor is considerably below zero. Bogema testified that he frequently requested the Company to provide shelters on the machines to shield the men from the biting wind. The testimony from both Bogema and Bryers was to the effect that they jointly complained to Project Manager Pope, Field Superintendent Buckert, and Equipment Supervisor Bud Frasier. The usual practice on the job was for the union members to bring their complaints to Bogema who, in turn, took them up initially with Bryers and thereafter with top supervision. Despite the frequency of their complaints, al- though Respondent's top supervisors said they would cor- rect this condition, nothing was ever done about it. With respect to the problem concerning excessive cold on the job section 6, captioned "Duties of Employer," the contract in subsection (b) states that: Employers shall be required to furnish suitable shelter to protect employees from falling materials and ele- ments of the weather ....[Emphasis supplied.] There were also many complaints from the men that wa- ter was not brought to the top of the ridge until about 11 a.m. Bogema brought this grievance to the attention of man- agement about three times a week. In this connection, the collective-bargaining agreement between the parties pro- vides in Section 6, subsection (g) that "the Employer pro- vide clean, cool drinking water on the job site." There were also numerous complaints that the plant su- perintendent of the black top mix, Don Jenson, was per- forming work normally done by the operating engineers. Bogema testified that Jenson did this type of work almost on a daily basis. According to Bogema the contract does not permit supervisors to perform tasks reserved to the men. According to testimony in the record the practice was not to have supervisors do work reserved to the men unless there was some special emergency. Bogema not only protested Jenson's performing this type of work but when he contin- ued to ignore this grievance by Bogema, on one occasion Bogema threatened to close down the job unless he assigned the work to the operating engineers. The Respondent had for a long period provided a school bus in which the men employed on top of the ridge were accustomed to be driven to the work site. Arbitrarily one day the men were told they would have to walk to the top of the slope. Several of the employees have heart problems, were on tablets, and were unable to get up the slope on foot. This matter was brought to the attention of Respondent's supervisors by Bogema. Wobbles on the Job It was established on the record that the terminology employed on the worksite for a slowdown , walkoff from the job, or other cessation of work was called a "wobble." It seems clear that two such wobbles occurred on August 18 and August 23, 1971 . Bogema was charged with causing these incidents . Bogema denied that he had ever caused an interruption in work . His denials of such action were disput- ed by the Company. The General Counsel adduced testimony from a number of employees on the subject of wobbles . Leonard Demmon, who operates a winch cat, admitted that on one occasion he 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD walked off the job because of some trouble he had with another operator on the job named Roy Lashe. Before he left Demmon reported to Bryers that he was not feeling well and that he would stay home for a couple of days. On another occasion he was approached by some workers who told him a group of men were going home and he was invited to join them . He said he picked up his lunch pail and left the job with the other men. Demmon 's actions fit the description of wobbles . However Demmon clearly testified that he was never told to wobble, slow down , or walk off the job by Bogema . I credit Demmon as being a truthful wit- ness . A number of other witnesses corroborated Demmon's testimony that Bogema had not instructed the men to en- gage in wobbles or any other action that interfered with Respondent 's operations. It should also be noted that Boge- ma himself did not participate in such actions. One area of recurring difficulty between Bogema and Respondent 's supervisory men concerned itself with Bogema's frequent complaints that Donald Jenson , the as- phalt plant superintendent , was performing work reserved to the operating engineers . Jenson testified that on one oc- casion in August 1971 he was working on an electrical prob- lem with a motor that would not run . According to Jenson the mechanic was present along with the operator and Jen- son. Bogema complained and allegedly said "he would shut the job down if my [Jenson's] electrical work didn't cease." Later a shutdown did take place . Jenson further testified that Bogema 's complaints about working with the tools of the trade became a nuisance. Union Steward Shipmen , who displaced Bogema as union steward , testified that he heard Bogema tell Jenson he was going to shut the job down . Some hours later a wobble did occur. There were two other employees who allegedly heard the threat made by Bogema . Respondent did not produce them as corroborating witnesses . Both Frasier and Jenson testified that they did not hear or see Bogema give such instructions . Both Jenson and Frasier said they did not know if Bogema told the men to slow down . The Company did not produce any direct evidence from other employees that Bogema told them to engage in wobbles . The fact that a wobble did occur , within a matter of hours after Bogema threatened Jenson that if he did not stop performing tasks reserved to the men he would shut the job down , is a suspi- cious circumstance . However , it is well settled that mere suspicion is not enough upon which to ground a finding of the commission of unfair labor practices . It should again be reiterated that Bogema did not personally engage in any wobbles that took place . It should also be remarked that there was friction and rivalry between Shipman and Boge- ma. This might account for the fact that Shipman testified in support of the version of the matter given by Jenson. In any event I was not impressed with Shipman's demeanor while he was on the witness stand . He testified that he was not present during all the argument between Bogema and Jenson . The principal thrust of his testimony was that he heard Bogema tell Jenson he was going to shut the job down. If his memory was not so selectively in support of Respondent's position it might be given greater credence. The preponderance of the evidence on the subject of wobbles persuades me that while wobbles did occur it was not established that Bogema was the instigator of these acts. Respondent's Refusal to Reemploy Bogema Bogema was employed from May 5 until November 22, 1971. At the commencement of his employment the union steward was Richard Shipman. Bogema displaced Shipman when he was appointed steward in August 1971.On Novem- ber 4, 1971, Bogema was removed as steward by the Union's business agent, Gilbert Sawyer. Shipman was reappointed steward by Sawyer. By November 22, 1971, the weather turned cold and Re- spondent phased out the winch operators including Boge- ma. About April 15 the Company began recalling its employees but Bogema was not reemployed. It is not disput- ed that upon the resumption of work Respondent did recall and reemploy a large number of men to the job of winch operator. Since the men were recalled as the result of refer- rals made through the Union, Bogema made numerous and persistent efforts to get back on his job through the Union. When he made no progress at the local level through Sawyer he visited the Union's main office in Detroit, wrote a letter to the Union's executive board, and said if he was not referred to his job he would file unfair labor practice charges against the Union with the NLRB. Some time later Sawyer did get him a new job with another contractor on the same project. Bogema frequently complained that Jenson was perform- ing tasks reserved to the men. It is therefore of particular signifigance that Bryers, the Company's master mechanic and Bogema's immediate supervisor, testified that on one occasion when Bryers was riding in a company pickup truck with Respondent's equipment superintendent, Frasier, Fra- sier said, "If I've got to lay every man off this job I will not have Jim Bogema back." Frasier was produced as a witness by Respondent on direct examination. He was not interrogated as to the above-quoted statement. Since he was not questioned by his counsel with respect to this remark it was not denied and therefore stands unrefuted on the record. I credit Bryers, who impressed me as a forthright and truthful witness. I believe that Frasier did in fact make the statement concern- ing Bogema attributed to him by Bryers. The complaints made by Bryers to Frasier and Jenson, among others, en- compass the regular duties of a union steward. No criticism was made by the Respondent as to Bogema's performance on his job. To refuse to recall him without a reason relating to his work makes it clear that Bogema was in fact penalized because of the manner in which he performed his union activities. The record does show that on one occasion the Company told Sawyer, the union business agent, that it would not reemploy Bogema because he was a troublemak- er. Thus it may be said the Respondent equated trouble making with militancy in pursuing union grievances. This constitutes illegal interference with activities protected by the Act. Contentions of the Parties Bryers testified that Shipman was lax in enforcing the contract. He was prone to accept Respondent's assurances that the matters complained of by the employees would be corrected and did not pursue such matters with insistence. MORRISON-KNUDSEN-STRABAG The General Counsel takes the position that Bogema was not recalled because he zealously sought to implement the labor agreement between the parties. Further that Respon- dent preferred Shipman as union steward because he did not exert pressure on the Company . It is reasonable to infer that its supervisors were annoyed by the constant pressure exerted on them by Bogema. Respondent argues that if a grievance did exist the con- tract provides that no strikes, stoppages, or lockouts shall occur during the processing of any grievances . Respondent proceeds on the theory that, among other things , Bogema was causing wobbles and as such he was not engaged in protected activities and it is principally for this reason that he was not recalled. Concluding Findings and Analysis The record amply supports the fact that in the discharge of his duties as union steward Bogema was an irritant to the Respondent . It is equally clear that Shipman was easier for the Company to live with. Respondent 's brief seeks to make much of the fact that it has always enjoyed amicable relations with the Operating Engineers . It gave Bogema an assignment that would permit him to visit anyone on the project who had something to complain about. Further that the burden of proving antiun- ion motivation in connection with the refusal to rehire Bogema was on the General Counsel and that he did not sustain this burden. The Company points out that the com- plaint did not allege the commission of any independent 8(a)(1) activity. However the totality of the evidence on the record convinces me that Bogema was not recalled to his job as punishment for his militant efforts to implement the pro- visions of the collective -bargaining agreement between the parties. His efforts in this area were activities protected by the Act. By discriminating against Bogema for engaging in protected activities the Respondent violated Section 8(a)(3) and (1) of the Act. I so find. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 315 will be recommended that Respondent offer Bogema imme- diate and full reinstatement to his former or substantially equivalent job, without prejudice to his seniority or other rights and privileges, discharging, if necessary, any replace- ments in order to provide work for him. It will also be recommended that Respondent make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him, by paying him a sum of money equal to what he normally would have earned as wages from April 15, 1972, to the date of Respondent's offer of reinstatement , less his net earnings during said peri- od. The amount of backpay due shall be computed accord- ing to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Payroll and other records in the possession of Respon- dent are to be made available to the Board or its agent, to assist in such computation. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Morrison-Knudsen-Strabag, a Joint Venture of Morri- son-Knudsen Company, Inc., and Strabag Bau, A.G. is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction in the premises. 2. Local Union 324, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to recall James Bogema to his job as winch operator when other winch operators were recalled Respon- dent engaged in conduct violative of Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby recommend that there be issued the following: ORDER2 The unfair labor practices of the Respondent set forth in section II, above , occurring in connection with its opera- tions set forth above , have a close , intimate and substantial relation to trade , traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV THE REMEDY Respondent, Morrison-Knudsen-Strabag Company, Inc., and Strabag Bau, A.G., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, Local Union No. 324, International Union of Operating Engineers, AFL-CIO, or any other labor organization, and discourag- ing activities by suspending or refusing to rehire employees or otherwise discriminating against employees in any man- It having been found that Respondent has engaged in conduct violative of Section 8(a)(3) and (1) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully refused to rehire Bogema it 2 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order and all objections thereto shall be deemed waived for all purposes 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ner with respect to their tenure of employment or any terms or conditions of employment. (b) Discriminating against union stewards for seeking to represent employees and processing their grievances or sub- jecting such stewards to disciplinary action. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer James Bogema immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, timecards, per- sonnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its operations in Ludington, Michigan, copies of the attached notice marked "Apendix." s Copies of the notice on forms provided by the Regional Director for Re- gion 7, after being duly signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. J In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage activities of union represent- atives by suspending or refusing to rehire employees or otherwise discriminate against employees in any man- ner with respect to their tenure of employment or any terms or conditions of employment. WE WILL NOT discriminate against union stewards for seeking to represent employees and processing griev- ances or subjecting such stewards to disciplinary ac- tion. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL offer James Bogema immediate and full re- instatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him and make him whole for the pay he lost with interest at 6 percent. MORRISON-KNUDSEN-STRABAG, A JOINT VENTURE OF MORRISON- KNUDSEN COMPANY, INC, AND STRABAG BAU, A.G. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3210.