Williams Pipeline Co.

National Labor Relations Board - Board Decisions

Nov 23, 1994

315 N.L.R.B. 630 (N.L.R.B. 1994)

630
315 NLRB No. 86
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In discussing Glen Pride’s testimony, the judge in sec. III,D,1,
par. 14, mistakenly stated that Williams allegedly said that Jay
Logan knew what he was talking about. This error makes no dif-
ference in the result in this case.
3 We disavow footnote 15 of the judge’s decision in which he
chastised counsel for the General Counsel for raising in her brief
8(a)(1) issues not alleged in the complaint. It is not clear what issue
the judge was addressing. To the extent that his comments were in-
tended to refer to the contention that the Respondent violated Sec.
8(a)(1) by stating that the men would get ‘‘screwed’’ by the Union,
we disagree that that statement was not encompassed in the com-
plaint. We find that the complaint allegation that Gene Williams co-
ercively swore at employees when they expressed a desire for union
representation is broad enough to include this statement. To the ex-
tent that the judge’s remarks were intended to refer to Williams’
statement about Logan’s ‘‘talking,’’ we find, as noted above, that
there is no procedural bar to finding this statement to be a violation
of the Act.
Similarly, we disavow the judge’s comment in sec. III,D,3, par. 3
of his decision suggesting that there was some procedural infirmity
in the General Counsel’s contention that Glen Pride was construc-
tively discharged in violation of Sec. 8(a)(3) and (1) of the Act. Al-
though the complaint alleged that Glen Pride was unlawfully dis-
charged (rather than specifically alleging an unlawful constructive
discharge), the constructive discharge issue was fully litigated at the
hearing.
Williams Pipeline Company and Plumbers and
Pipefitters Local Union No. 99, United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO. Cases
33–CA–9828 and 33–CA–9851
November 23, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On December 29, 1993, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel filed limited exceptions, a supporting
brief, and a brief in partial support of the administra-
tive law judge’s decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified and set forth in full below.
1. The judge found, and we agree, that the Respond-
ent violated Section 8(a)(3) of the Act by unlawfully
terminating Jay Logan. In making this determination,
the judge credited Glen Pride’s testimony that, when
asked why Logan was not offered employment at the
New Baden, Illinois job, the Respondent’s owner,
Gene Williams, responded that ‘‘there was too much
talking going on and he was going to [put] a stop to
it one way or another.’’ When Pride asked what kind
of ‘‘talking,’’ Williams said, ‘‘I [Williams] know what
he [Logan] was talking about.’’2
The judge did not address the issue whether Wil-
liams’ statement violated Section 8(a)(1) apparently
because this matter was not specifically alleged in the
complaint. For the reasons set forth below, we find
merit in the General Counsel’s exception and find Wil-
liams’ statement to be unlawful.
‘‘It is well settled that the Board may find and rem-
edy a violation even in the absence of a specified alle-
gation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.’’ Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990).
The first part of this test is easily satisfied here. The
complaint alleges, inter alia, that Williams made other
coercive statements to employees in violation of Sec-
tion 8(a)(1) and that Williams discharged Logan in
violation of Section 8(a)(3) and (1). Union animus is
a traditional element of an 8(a)(3) discharge allegation,
and the General Counsel asserts that the Williams
statement is evidence of the Respondent’s hostility to-
ward protected union activity. In fact, the judge prop-
erly relied on Williams’ ‘‘too much talking’’ remark in
concluding that he unlawfully discharged Logan. Ac-
cordingly, we find that there is a close connection be-
tween the violation sought and the subject matter of
the complaint.
We also find that the second part of the Pergament
test is satisfied. At the hearing, there was no objection
to Pride’s testimony, and the Respondent had an op-
portunity to cross-examine the witness and further ex-
plore the issue. Accordingly, we find that the issue was
fairly and fully litigated.
On the merits, we find, in agreement with the judge,
that the record as a whole supports the inference that
the reference to ‘‘too much talking’’ pertained to
Logan’s protected activities in enlisting the Union’s
support to enforce the payment of prevailing scale
wages at the Heyworth, Illinois jobsite. By stating that
he ‘‘was going to put a stop’’ to such protected activi-
ties, ‘‘one way or another,’’ Williams threatened em-
ployees with retaliation in violation of Section 8(a)(1)
of the Act.3
2. The judge found no merit in the complaint allega-
tions that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to pay its employees wages
631WILLIAMS PIPELINE CO.
4 The extrinsic evidence of record concerning the parties’ intent
supports our interpretation of the contract. Thus, Union Business
Manager Ricky Terven testified that in entering into the bargaining
agreement with the Respondent, he followed the Union’s practice of
issuing ‘‘permits’’ or ‘‘white papers’’ for the Respondent’s current
employees entitling them to journeymen wage rates. In addition, the
record shows that the Union filed a grievance over the Respondent’s
failure to pay contractual wage rates and benefits, and the grievance
was found meritorious by the joint grievance committee responsible
for interpreting the agreement. We note that no party has excepted
to the judge’s ruling at the hearing rejecting the General Counsel’s
proffer of the pertinent grievance documents.
5 The contract, which stated that it was effective to April 30, 1992,
contained a rollover provision stating that it ‘‘shall remain in effect
from year to year thereafter unless objections are made by registered
mail by one or more of the interested parties at least 60 days prior
to the expiration date, as set forth above, or the yearly expiration
date thereafter.’’ We agree with the judge’s conclusion in footnote
33 of his decision that the contract was automatically renewed and
therefore applied to the final stage of the Heyworth job.
in accordance with the contract wage scale and by fail-
ing to make benefit fund contributions on their behalf.
For the reasons set forth below, we disagree.
The record establishes that, except for Marty
Schuler, the apprentice referred by the Union, the Re-
spondent did not pay contract wages or remit fringe
benefit contributions for its employees during periods
when they were engaged in pipefitting work at the
Heyworth, Illinois jobsite covered by the contract. The
judge reasoned that the Respondent was not required
to pay contractual wages and benefits to these employ-
ees because there was no showing that they had
achieved journeyman status or that they were enrolled
in an apprenticeship program.
We find that the judge fundamentally misconstrued
the contract. Although article III of the collective-bar-
gaining agreement specifies rates of pay only for jour-
neymen and apprentices, the coverage of the contract
is set forth in article VII of the agreement, not article
III. Article VII provides as follows:
This Agreement covers the rates of pay, hours and
working conditions of all employees engaged in
the installation of all plumbing and/or pipefitting
systems and component parts thereof, including
. . . and all other work included in the trade ju-
risdiction of the United Association, as set forth
in Appendix A which is incorporated herein and
made a part of this Agreement.’’
Appendix A states, inter alia, that the agreement shall
apply to ‘‘all Employees of an Employer employed to
perform or performing plumbing, heating, and piping
work’’ within the Union’s geographical jurisdiction.
There is nothing in the contract stating that employees
performing pipefitting work are excluded from cov-
erage by reason of their lack of skill, training, or expe-
rience.
Here, the credited evidence establishes that the Re-
spondent’s employees performed pipefitting work with-
in the Union’s geographical jurisdiction. Therefore, we
find that the contract expressly covers ‘‘the rates of
pay, hours, and working conditions’’ of the Respond-
ent’s employees.4 Accordingly, we conclude, contrary
to the judge, that the Respondent violated Section
8(a)(5) and (1) of the Act by its failure to pay contrac-
tual wages to and remit fringe benefits on behalf of its
employees who performed plumbing and pipefitting
work.
3. The General Counsel excepts to the judge’s fail-
ure to find that the Respondent violated Section 8(a)(5)
by repudiating the collective-bargaining agreement
with the Union and by withdrawing recognition from
the Union. We agree with the General Counsel and
find that the Respondent repudiated its collective-bar-
gaining agreement immediately after executing it on
March 3, 1992, and withdrew recognition from the
Union in violation of Section 8(a)(5) and (1) of the
Act.
Although the Respondent executed a contract with
the Union on March 3, 1992, covering pipefitting work
on the Heyworth, Illinois jobsite, the only time it ever
followed the contract was with respect to the payment
of wages and benefits for one apprentice referred from
the union hiring hall.5 Thus, the Respondent never
paid its own pipefitter employees the wages provided
in the contract and never made any of the required
benefit contributions on their behalf. Even the Re-
spondent’s token adherence to the contract proved to
be short lived because the apprentice worked at most
4 weeks during the first phase of the project (approxi-
mately March 3–April 3, 1992). The undisputed testi-
mony shows that when the Respondent returned to
Heyworth in May for the second phase of the job, Wil-
liams hired new employees without even notifying the
Union that he had returned, evicted Union Business
Manager Terven when he came to the jobsite to protest
the contract violation, and adamantly stated to Terven
that ‘‘our apprentice had screwed him to death and that
he didn’t want any more from the local.’’
Viewing the record evidence as a whole, it is appar-
ent that this Respondent never had any intention of
complying with its core contractual obligations. The
Respondent’s failure to pay its regular employees con-
tract wages and fringes from day one is especially tell-
ing. As the Board stated in Oak Cliff-Golman Baking
Co., 207 NLRB 1063, 1064 (1973), enfd. mem. 505
F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826
(1975), an employer’s decision ‘‘to pay its employees
for the remainder of the contract’s [term] at wage rates
below those provided in the collective-bargaining
agreement affects what is perhaps the most important
element of the many in the employment relationship
which Congress remitted to the mandatory process of
collective bargaining under the Act.’’ The Board cor-
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We find that in thus dating the repudiation as of November 1,
1988, the Board in Caamano Bros. implicitly rejected the rule adopt-
ed by our dissenting colleague, i.e., that no contract repudiation vio-
lation can be found so long as the employer is following some con-
tract term.
7 Cf. Fairleigh Dickinson University, 253 NLRB 1049, 1050
(1981) (request to bargain would have been futile and therefore not
a prerequisite to an 8(a)(5) finding where the employer stated that
it was refusing to bargain in order to test the validity of the certifi-
cation).
8 We specifically disavow the statements in fn. 39 of the judge’s
decision regarding the employees’ applications for membership in
the Union. We note that the dues-checkoff authorizations which
Terven possessed, but was unable to submit to Williams on May 19,
can be consulted in compliance to assure that no remission of dues
is required for any employee who had not signed a valid checkoff
authorization. There is, therefore, no danger of countenancing a vio-
lation of Sec. 302(c)(4) of the Act, as the judge suggested.
rectly reasoned that because so many contract terms
are dependent upon the wage rate provision, ‘‘a clear
repudiation of the contract’s wage provision . . .
amounts, as a practical matter, to the striking of a
death blow to the contract as a whole, and is thus, in
reality, a basic repudiation of the bargaining relation-
ship.’’
Oak Cliff-Golman was explicitly followed on this
point in Caamano Bros., 304 NLRB 24, 27–28 (1991).
In that case, the Board held, citing Oak Cliff-Golman,
that the employer ‘‘effectively repudiated the [collec-
tive-bargaining] agreement by failing to apply wage
and benefit provisions to the covered employees.’’ A
close examination of the facts of that case shows that
the Board dated the repudiation as of November 1,
1988, even though the employer made contractual
health benefit contributions on behalf of at least some
unit employees as late as February 1989.6
In sum, on March 3, 1992, before the ink was even
dry on the signature page, the Respondent disregarded
the contract’s critical economic provisions. Two
months later, when the Respondent returned to the
Heyworth jobsite after a brief hiatus, it failed to notify
the Union of its presence, and it hired employees in
violation of the contractual hiring hall provision. The
Respondent made not the slightest effort to resolve its
differences with the Union and informed the business
manager in no uncertain terms that there was no bar-
gaining relationship between them. On these facts, it
would exalt form over substance to accord any weight
to the Respondent’s payment of contractual wages and
fringes to the one apprentice for a 4-week period. The
preponderance of the evidence persuades us to find, in
accordance with Oak Cliff-Golman and Caamano
Bros., that the Respondent effectively repudiated the
collective-bargaining agreement on March 3, 1992. Ac-
cordingly, the Respondent’s remedial obligations date
from that time.
4. The judge found that the Respondent did not vio-
late Section 8(a)(5) and (1) by its failure to deduct and
remit union dues. Relying on the Union’s failure to
submit checkoff authorizations to the Respondent, the
judge found that the Respondent had no checkoff obli-
gation. We disagree.
As the judge correctly stated in his decision, the Act
prohibits an employer from deducting and remitting
union dues unless the employee has executed a written
dues-checkoff authorization. Normally, the employer
has no checkoff obligation until presented with a
signed authorization. In this case, however, we have
found that as of March 3, 1992, the Respondent repu-
diated its collective-bargaining relationship with the
Union. It would have been futile for the Union to
present dues-checkoff authorizations to the Respondent
after the Respondent repudiated the contract.7 There-
fore, we find that after repudiating the contract on
March 3, 1992, the Respondent violated Section
8(a)(5) of the Act by failing to deduct and remit union
dues for those employees who had signed checkoff au-
thorizations, and shall order the Respondent to remit to
the Union dues for employees who signed checkoff au-
thorizations as of that date.8
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 4.
‘‘4. The Respondent violated Section 8(a)(1) of the
Act about April 6, 1992, by stating to Glen Pride that
employee Jay Logan was terminated because there was
too much talking and Williams knew what Logan was
talking about.’’
2. Substitute the following for Conclusion of Law 5.
‘‘5. The Respondent violated Section 8(a)(5) and (1)
of the Act by failing to pay its employees wages and
fringe benefits as prescribed by the contract since
March 3, 1992, and by hiring employees in May 1992
to perform work covered by its collective-bargaining
agreement with the Union without first obtaining clear-
ance or referral under the contractual hiring hall proce-
dure.’’
3. Add the following as Conclusion of Law 6 and
renumber the remaining paragraph.
‘‘6. The Respondent violated Section 8(a)(5) and (1)
of the Act on March 3, 1992, by repudiating its collec-
tive-bargaining agreement with the Union, by with-
drawing recognition from the Union, and, thereafter,
by failing to deduct and remit union dues for those
employees who had signed checkoff authorizations.’’
AMENDED REMEDY
Having found that the Respondent has violated the
Act, we shall order it to cease and desist and to take
certain affirmative action designed to effectuate the
policies of the Act.
Specifically, having found that the Respondent has
violated Section 8(a)(3) and (1) by discharging Jay
Logan, we shall order the Respondent to offer Logan
immediate and full reinstatement to his former job or,
633WILLIAMS PIPELINE CO.
9 261 NLRB 472 (1982).
if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and to
make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against him. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). In accord with Ster-
ling Sugars,9 the Respondent shall also be required to
expunge from its files any and all reference to the un-
lawful discharge and to notify Logan in writing that
this has been done and that evidence of that unlawful
discharge will not be used as a basis for future per-
sonnel actions against him.
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by failing to pay contractual wage
rates and fringe benefits for its employees since March
3, 1992, we shall order the Respondent to make the
unit employees whole for any loss of earnings attrib-
utable to its unlawful conduct. Backpay shall be com-
puted in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order
the Respondent to make whole its unit employees by
making all delinquent fringe benefit contributions, in-
cluding any additional amounts due the Local 99 ben-
efit funds in accordance with Merryweather Optical
Co., 240 NLRB 1213 fn. 7 (1979). In addition, the Re-
spondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, supra,
with interest as prescribed in New Horizons for the Re-
tarded, supra.
Further, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) on and after March 3,
1992, by repudiating its collective-bargaining agree-
ment, and by failing to deduct union dues for employ-
ees who had executed dues-checkoff authorizations and
to remit them to the Union, we shall order the Re-
spondent to abide by the terms and conditions of its
collective-bargaining agreement and to make whole its
unit employees for any loss of earnings and other ben-
efits suffered as a result of the unlawful action. Back-
pay shall be computed in accordance with Ogle Pro-
tection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra. In addition, we
shall order the Respondent to deduct and remit union
dues as required by the agreement and to reimburse the
Union for its failure to do so, with interest as pre-
scribed in New Horizons for the Retarded, supra.
Having adopted the judge’s finding that the Re-
spondent has violated Section 8(a)(5) and (1) of the
Act by failing to comply with its contractual obligation
to use the Union’s exclusive hiring hall, we shall cor-
rect the judge’s failure to provide an affirmative rem-
edy and shall order the Respondent to offer immediate
and full employment to those applicants who would
have been referred to the Respondent for employment
through the hiring hall were it not for the Respondent’s
unlawful conduct, and to make them whole for any
loss of earnings and other benefits they may have suf-
fered by reason of the Respondent’s failure to hire
them. J. E. Brown Electric, 315 NLRB 620 (1994).
Backpay is to be computed in a manner consistent with
F. W. Woolworth, supra, with interest thereon as set
forth in New Horizons for the Retarded, supra. Rein-
statement and backpay issues will be resolved by a
factual inquiry at the compliance stage of the pro-
ceeding. J. E. Brown Electric, supra, at 623. In addi-
tion, the Respondent shall be required to make whole
the appropriate fringe benefit trust funds for losses suf-
fered by reimbursing these funds for contributions that
would have been made on behalf of those individuals
who would have been referred to work were it not for
the Respondent’s unlawful failure to use the hiring
hall, including any additional amounts due the funds in
accordance with Merryweather Optical, supra, and to
reimburse those individuals for any expenses ensuing
from the Respondent’s failure to make the required
contributions, as set forth in Kraft Plumbing, supra,
such amounts to be computed in the manner set forth
in Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Williams
Pipeline Company, Flora, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified and set forth in full below.
1. Cease and desist from
(a) Threatening employees with retaliation for en-
gaging in protected activities.
(b) Discouraging membership in a labor organization
by discharging or otherwise discriminating with respect
to wages, hours, or other terms and conditions or ten-
ure of employment.
(c) Refusing to bargain in good faith by failing to
pay its employees wages and fringe benefits as pre-
scribed by its collective-bargaining agreement.
(d) Refusing to bargain in good faith by failing to
hire employees in accord with the hiring hall provi-
sions of its collective-bargaining agreement.
(e) Repudiating its collective-bargaining agreement
with Plumbers and Pipefitters Local Union No. 99,
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 I would not grant the general reinstatement order for the reasons
stated in my concurring opinion in J. E. Brown Electric, 315 NLRB
620 (1994), concerning the appropriate remedy for violations of hir-
ing hall clauses. I agree that a reinstatement order is the appropriate
remedy for the unlawful discharge of employee Jay Logan.
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO, and unlawfully with-
drawing recognition from the Union.
(f) Failing to deduct and remit union dues in accord-
ance with its collective-bargaining agreement following
the repudiation of that agreement.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jay Logan 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 any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in
the amended remedy section of the decision.
(b) Remove from its files any reference to the un-
lawful discharge of Jay Logan and notify him in writ-
ing that this has been done and that the discharge will
not be used against him in any way.
(c) Honor, comply with, and abide by the terms and
conditions of the collective-bargaining agreement with
the Union, including paying the wages and fringe ben-
efits prescribed in the contract, adhering to the hiring
hall provisions of the collective-bargaining agreement,
and deducting dues as prescribed by the contract for
those employees who have signed authorization cards.
(d) Make whole unit employees for any loss of earn-
ings and other benefits they may have suffered as a re-
sult of the Respondent’s failure to pay contractual
wages and benefits and its subsequent contract repudi-
ation, make delinquent benefit fund contributions, and
reimburse unit employees for their expenses, all in the
manner set forth in the amended remedy section of the
decision.
(e) Deduct union dues as of the date of its repudi-
ation of the collective-bargaining agreement for all em-
ployees who executed dues-checkoff authorizations and
remit those dues to the Union, in the manner set forth
in the amended remedy section of this decision.
(f) Offer immediate and full employment to those
applicants who would have been referred to the Re-
spondent for employment through the Union’s hiring
hall were it not for the Respondent’s unlawful conduct
and make them whole for any loss of earnings and
other benefits that resulted from the Respondent’s un-
lawful failure to apply the hiring hall provisions of the
contract, including making the necessary contributions
on behalf of such applicants to the appropriate fringe
benefit funds as provided in the collective-bargaining
agreement and reimbursing the employees for their ex-
penses, all in the manner set forth in the amended rem-
edy section of the decision.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its facilities in Flora, Illinois, copies of
the attached notice marked ‘‘Appendix.’’10 Copies of
the notice, on forms provided by the Regional Director
for Region 33, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER STEPHENS, dissenting in part.
I agree with my colleagues in their resolution of all
issues except that I would not issue a general reinstate-
ment order to remedy the contract repudiation viola-
tion;1 and, for the following reasons, I would find that
the repudiation of the contractual relationship occurred
on May 19, 1992, rather than, as my colleagues have
found, on March 3, the date of contract execution.
As the undisputed facts show, after signing the con-
tract, the Respondent abided by it in part—accepting
a referral (Marty Schuler) from the Union’s hiring hall
and paying him wages and benefits pursuant to the
contract. It seriously breached the contract in other re-
spects, however, by evading the hiring hall in its use
of two employees and by not paying contract wages
and benefits to employees other than Schuler because
of its ill-founded contention that the contract did not
apply to them. This conduct clearly warranted a find-
ing of unilateral contract modification in violation of
Section 8(a)(5) and (1), but my colleagues’ conclusion
that it warrants a finding of total repudiation of the
contractual relationship is, in my view, based on a
misreading of Board precedent.
635WILLIAMS PIPELINE CO.
2 202 NLRB 614, 618 (1973). The Board’s decision published at
207 NLRB 1063 was the second decision in the case, issued after
the Board had withdrawn the case from an appellate court in which
the employer had sought review. The Board reaffirmed its original
order, but provided answers to two arguments of the employer,
namely that the issues should have been deferred to arbitration and
that Congress did not intend for the Board to deal with contract vio-
lations.
In Oak Cliff-Golman Baking Co., 207 NLRB 1063,
1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir.
1974), cert. denied 423 U.S. 826 (1975), the Board
found that the respondent employer, like the Respond-
ent here, violated Section 8(a)(5) by unilaterally modi-
fying important provisions of the contract. As reflected
in the Order adopted by the Board in that case,2 the
Board did not enlarge the contract modification viola-
tion into a broader finding of total contract repudiation
and withdrawal from the bargaining relationship. The
language on which my colleagues rely was employed
to answer the respondent employer’s argument that
breaches of contract should be dealt with solely
through judicial enforcement procedures and should
not be dealt with as unfair labor practices by the
Board. The Board was making the point that it was
acting within its statutory mandate in remedying an
employer’s repudiation of a contract clause embodying
so important a term and condition of employment as
wages.
In Caamano Bros., 304 NLRB 24 (1991), also cited
by my colleagues, the judge’s decision states that the
respondent ‘‘admitted substantially’’ all the General
Counsel’s evidence concerning contract repudiation, id.
at 27, and defended solely on the meritless ground that
it was not bound by the contract ‘‘at all.’’ Id. at 28.
The Board adopted the judge’s decision with only two
brief footnotes. Under these circumstances, it does not
appear that the contract-repudiation-versus-contract
modification issue presented here was actually argued
and decided in Caamano Bros. Therefore, I do not re-
gard the case as controlling precedent on that question.
In sum, I agree that the General Counsel proved by
a preponderance of the evidence that the Respondent
engaged in a total repudiation of the contract on May
19, 1992, when Williams rebuffed all attempts of
Union Business Manager Terven to discuss apparent
contract violations and ejected him from the premises
with the declaration that he wanted no more workers
from the union hall. I do not agree that the record es-
tablishes a total repudiation prior to that date.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with retalia-
tion for engaging in protected activities.
WE WILL NOT discourage membership in Plumbers
and Pipefitters Local Union No. 99, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Can-
ada, AFL–CIO, or any other labor organization, by dis-
charging employees or otherwise discriminating with
respect to employee wages, hours or other terms and
conditions or tenure of employment.
WE WILL NOT refuse to bargain in good faith by
failing to pay contractual wages and benefits.
WE WILL NOT refuse to bargain in good faith by
failing to hire employees in accord with the hiring hall
provisions set forth in our collective-bargaining agree-
ment with Local 99.
WE WILL NOT repudiate our collective-bargaining
agreement with Local 99 and WE WILL NOT unlawfully
withdraw recognition from Local 99.
WE WILL NOT fail to deduct and remit union dues
as required by our collective-bargaining agreement fol-
lowing repudiation of that agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Jay Logan immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus inter-
est.
WE WILL remove from our files any reference to the
unlawful discharge of Jay Logan and notify him in
writing that this has been done and that the discharge
will not be used against him in any way.
WE WILL honor, comply with, and abide by the
terms and conditions of the collective-bargaining
agreement with the Union, including paying the wages
and fringe benefits prescribed in the contract, adhering
to the hiring hall provisions of the collective-bar-
gaining agreement, and deducting dues as prescribed
by the contract for those employees who have signed
authorization cards.
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1992, unless otherwise indicated.
2 At the hearing, I granted the General Counsel’s request to amend
subpars. 5(c) and (d) of the consolidated complaint. Following close
of the hearing, a motion to reconsider was submitted on behalf of
the Respondent, specifically contesting the revision to subpar. 5(c)
on the stated ground that the changed increased the Respondent’s
potential liability. In this regard, more than 4 months prior to the
hearing the Regional Director issued an erratum correcting the date
appearing in subpar. 5(c). G.C. Exh. 1(t). The correction, however,
was not the substantive equivalent of either the amendment re-
quested by the General Counsel at the hearing, or that granted by
me. Hence, contrary to the General Counsel, the earlier action by the
Regional Director is not completely dispositive of the issue in its
present form. Nevertheless, my rulings are reaffirmed. A continuance
to support either change, if requested by the Respondent, would have
been inappropriate. The revision to subpar. 5(c) did not affect the
merits, but pertained solely to the scope of any appropriate remedy.
Beyond that, the request for reconsideration does not address the
amendment to subpar. 5(d), a change that, likewise, could not affect
the Respondent’s proof responsibility. Moreover, the motion for re-
consideration neglects to demonstrate that either ruling in any man-
ner affected the scope of the litigation or the Respondent’s ability
fully to present its defense to the unfair labor practice allegations.
For this reason, and as there is no basis for assuming that the Re-
spondent was in any sense prejudiced in this regard, the motion is
rejected as lacking in merit.
WE WILL make our employees whole with interest
for any loss of earnings and other benefits resulting
from our failure to pay contractual wages and benefits
and our subsequent contract repudiation, and WE WILL
make all delinquent fringe benefit contributions re-
quired by our contract with Local 99 and reimburse
employees for their expenses resulting from our unlaw-
ful failure to make the required contributions.
WE WILL deduct union dues as of the date of our
repudiation of the collective-bargaining agreement for
all employees who executed dues-checkoff authoriza-
tions and remit those dues to the Union.
WE WILL offer immediate and full employment to
those applicants who would have been referred to us
for employment through the Union’s hiring hall were
it not for our unlawful conduct and make them whole
for any loss of earnings and other benefits they may
have suffered as a result of our failure to apply the hir-
ing hall provisions of the collective-bargaining agree-
ment, and WE WILL make the necessary contributions
on their behalf to the appropriate fringe benefit funds
and reimburse the employees for their expenses result-
ing from our unlawful failure to make the required
contributions.
WILLIAMS PIPELINE COMPANY
Judy Poltz, Esq., for the General Counsel.
Gene Williams, pro se, of Flora, Illinois, and David E.
Krchak, Esq. (Thomas, Mamer & Haughey), of Cham-
paign, Illinois, for the Respondent.
William C. Cavanagh, Esq. (Cavanagh and O’Hara), of
Springfield, Illinois, and Ricky S. Terven, Business Agent,
of Bloomington, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Champaign, Illinois, on August 4, 1993, on an
initial unfair labor practice charge filed on May 21, 1992,1
and a complaint issued on March 11, 1993, alleging that the
Respondent independently violated Section 8(a)(1) of the Act
by denouncing employees with profanities because they ex-
pressed a desire to seek union representation, and violated
Section 8(a)(3) and (1) by discharging Jay Logan, Glen
Pride, and Jerome Pride, in retaliation for their union activ-
ity. The complaint further alleged that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act when it repudiated
an existing collective-bargaining agreement by failing to
make fringe benefit contributions, refusing to pay contractual
wage rates, failing to deduct and remit union dues, and fail-
ing to adhere to a contractual referral and hiring procedure.
In its duly filed answer, the Respondent denied that any un-
fair labor practices were committed.
On the entire record,2 including my observation of the wit-
nesses and their demeanor, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a sole proprietorship, owned and oper-
ated by Gene Williams, who from his place of business in
Flora, Illinois, is engaged as a plumbing and pipefitting con-
tractor in the construction industry. In the course of that op-
eration, the Respondent, during the 12 months preceding
issuance of the complaint, provided services valued in excess
of $50,000 to the city of Heyworth, Illinois, which meets the
Board’s direct inflow and direct outflow jurisdictional stand-
ards. During that same period, the Respondent purchased and
caused to be shipped to its Flora, Illinois facility and various
jobsites in the State of Illinois goods and materials valued in
excess of $50,000 shipped directly from outside the State of
Illinois.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Plumbers and Pipefitters, Local Union No. 99, United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
The Respondent is a contractor engaged in the installation
of utility pipelines for various municipalities in the State of
637WILLIAMS PIPELINE CO.
3 The record includes a strong suggestion that the construction
trades in southern Illinois are less prone to union organization than
in the northern part of the State.
4 There is no evidence that the Respondent, within the timeframe
relevant to this proceeding, engaged in any projects covered by that
contract other than the Heyworth job.
5 Earlier, it appeared that the matters in controversy had been fully
adjusted when, on December 4, 1992, the Respondent executed an
informal settlement stipulation. The Respondent admittedly breached
that agreement, prompting the Regional Director to withdraw ap-
proval of the settlement and again to set down this case for hearing.
This proceeding is not the equivalent of an action for specific per-
formance of that agreement, and the Respondent did not thereby for-
feit his right to balanced evaluation of the record. Moreover, the vio-
lation of the settlement agreement did not relieve the General Coun-
sel of its burden of substantiating each and every unfair labor prac-
tice allegation by a preponderance of the evidence.
6 Terven equated this with permits issued by the Union under the
‘‘48-hour’’ exception to the hiring hall arrangement as described in
the master agreement, sec. 10.9. That provision, however, limits a
signatory’s direct hiring to ‘‘Journeymen.’’ Any special arrangement
that overlooks that requirement arouses curiosity since a clear depar-
ture from the sanctity of the ‘‘craft’ and the traditional interest of
building trade unions in preserving and protecting the special skills
of its membership.
7 G.C.Exh. 5. The Respondent thereby became bound, when per-
forming in the covered area, to the terms of Local 99’s multiem-
ployer contract with the Plumbing and Heating Contractors Associa-
tion of Bloomington and Normal, Illinois. G.C. Exh. 4.
8 Brad Williams was a cousin to Gene Williams. He operated the
backhoe on the job.
9 Gene Williams testified that this was the case. The General
Counsel disagrees based essentially on testimony by Glen Pride that
Jerome executed his union documents on March 2. However, Glen
Pride did not testify that his brother actually was on payroll status
at the time. It is within the realm of possibility that Jerome Pride,
who did not appear as a witness, did so in anticipation of employ-
ment. There is no clear conflict, and in any event the issue is of no
material consequence.
10 Logan related that on the first or second day at Heyworth after
Glen Pride reported that Terven was talking to Gene Williams, he
approached Gene Williams concerning the Union and was told,
‘‘yes, Jay, I am going to get you a union card.’’
11 G.C. Exhs. 18, 19, and 20. Jerome Pride’s application for mem-
bership bears the signature date of ‘‘2/5/92.’’ The discrepancy was
Continued
Illinois. Prior to March 1992, it had operated in southern Illi-
nois, where it always worked nonunion, utilizing employees
as needed to perform all work called for without respecting
craft lines routinely enforced in the organized sector of the
construction trades. In March 1992, the Respondent started a
project that called for installation and hookup of water lines
in Heyworth, Illinois. The job was within the jurisdiction of
the Charging Party and further north than any previously per-
formed by the Respondent.3 It was also subject to protective
labor legislation at the state level which required payment of
prevailing wages and fringe benefits for particular classes of
work.
The Heyworth job included work within the traditional
craft jurisdiction of the Charging Union as well as work his-
torically performed by operators represented by the Inde-
pendent Union of Operating Engineers and laborers rep-
resented by the Laborers Union. The complaint is founded
essentially on alleged discrimination that occurred after the
Respondent executed a collective-bargaining agreement with
the Charging Party covering plumbing and pipefitting work
on the Heyworth job.4 It is also alleged that, in connection
with that job, the Respondent, during the same timeframe, re-
pudiated that agreement as evidenced by its failure to pay
union scale for covered work, to adhere to hiring require-
ments, and to remit fringe benefit contributions and union
dues.5
B. The Union Activity
Organization of the Heyworth job was from the outside in.
Ricky Terven, the Union’s business manager, having learned
that the Respondent had landed the Heyworth job, well prior
to the commencement of work, contacted Gene Williams by
telephone, inquiring as to whether he was a union contractor
‘‘and if he wasn’t, what I could do to make him a union
contractor.’’ He was told by Williams that he would talk to
him when he got to Heyworth and would call before arriv-
ing. Later, Terven in late February met with Williams at the
job. There was some discussion as to why Williams had not
called as promised, and then the Union’s contract was dis-
cussed. Williams requested and was given a few days to con-
sider whether he would sign. Neither contact was preceded
by effort on the part of the Union to organize the Respond-
ent’s employees on the Heyworth jobsite. After meeting with
Williams, Terven met with two employees, who expressed a
strong interest in joining the Union.
Williams again neglected to contact the Union as agreed.
Having received no response, Terven, on March 3, accom-
panied by John Penn, the business manager from the Labor-
ers Union, returned to the jobsite. Williams apparently ini-
tially resisted the contract demands expressing concern that
he would have to get rid of his crew. Terven indicated that
this would pose no problem, but, as he put it, ‘‘We would
also like him to hire one of our guys.’’ Terven explained that
the Union could issue a ‘‘permit’’ allowing him to use his
own men on the job.6 On that very day, Gene Williams exe-
cuted the Union’s collective-bargaining agreement binding
him to adhere to its terms in connection with utility piping
and plumbing work performed by its employees ‘‘within the
geographical jurisdiction allocated to the local union by the
United Association.’’7 He also signed an agreement with the
Laborers Union in connection with this project, filling a sin-
gle position under that contract through a hiring hall referral.
Brad Williams,8 Jay Logan, and Glen Pride were on the
Heyworth job from the outset. Later, Jerome Pride came on
the job.9 All three had been employed by the Respondent in
the past. It is my understanding that employees first learned
of union activity when the Charging Party’s business agent,
Rick Terven, was observed in the above-described late-Feb-
ruary discussion with Gene Williams.10 Testimony indicates
that union membership documents were executed by the
Pride brothers and Logan. The sequence is somewhat con-
fused. Logan testified that after he seemingly observed Gene
Williams sign the labor contract, Terven approached to report
that Williams was ‘‘signing’’ and asked the employees if
they were still interested in joining the Union. Logan alleg-
edly executed his membership application and checkoff au-
thorizations on March 4. (G.C. Exhs. 7, 8, and 9.) However,
Glen Pride’s papers indicate that he signed on March 2.
(G.C. Exh. 15, 16, and 17.) He claims that his brother, Je-
rome also executed the documents and gave them to him,11
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unexplained, but is insufficient to arouse suspicion as to Glen Pride’s
authentication of the document. G.C. Exh. 18.
12 Schuler would not have been on the job until after the contract
was executed since he appeared pursuant to referral from the
Union’s hiring hall.
13 As I understand Terven, the documents were forwarded to the
International, but not acted upon because of difficulties in finding
‘‘where to put’’ the three applicants for membership. His references
to the need for ‘‘schooling’’ is consistent with my understanding of
just who craft unions are willing to recognize as ‘‘Journeymen.’’
14 I reject the testimony of Pride and Logan that Williams at any
time, on an unqualified basis, said that he would not sign a union
contract. Pride gave no indication that this was the case until led
through a broad prejudicial question propounded by counsel for the
General Counsel as to whether ‘‘Gene Williams expressed or made
the statement that he would not sign a union contract.’’ I believe that
he made a remark that he would not sign unless the men were pro-
tected against removal from the job by action on the part of the
Union recognizing them as journeyman. Moreover, if such an un-
qualified remark was made, curiosity is aroused as to the complaint’s
treatment of the issue. For, the precise allegation set forth in the
complaint, on its face, is of dubious legal sufficiency. On the other
hand, the precedent stubbornly interdicts managerial declarations that
organization would be futile. Yet, this more familiar violation was
not alleged. Even were I to find that Williams declared he would
not sign under conditions indicating that organizational pursuits
would prove futile, considering the circumstances under which this
case was litigated, I would not conclude that issue was not joined
with sufficient clarity and completeness to warrant a remedy.
15 In my opinion, the independent 8(a)(1) allegation specified in
the complaint is specific, albeit insubstantial. Counsel for the Gen-
eral Counsel uses a spray gun approach to this section of the Act
applying it to theories neither suggested by allegation in terms of
content or timeframe. Not only do I disapprove of the approach but
I find that matters unveiled for the first time in the briefing stage
never might be blessed as fully litigated. Beyond that, prosecution
by afterthought has gone too far. It is about time that those respon-
sible for vindicating the ‘‘public rights’’ under this Act took a hard
look at the slight regard given to the pleading process by those en-
trusted with the prosecutorial function. Somehow the message must
be driven home that time spent in briefing unalleged issues is better
spent in conforming complaint to prehearing affidavits.
16 Logan testified, without contradiction, that since his employment
began with the Respondent, he was called to work on all jobs suc-
cessfully bid by that firm. He was hired on Claremont job. To his
knowledge, Williams bid no jobs until Virden, Illinois, and for this
reason he sought and obtained work elsewhere. Later, Williams
called him to work on that job. After Virden, the crew was down
for about 3 weeks, but then went straight to Heyworth.
17 On this record, it makes no sense that Logan would have made
such a suggestion. Williams did not testify that the job at new Badin
could not accommodate the entire crew, including Jerome Pride. Nor
whereupon both sets were given to Marty Schuler.12 Terven
did not testify that membership was actually conferred pursu-
ant to these applications,13 nor did he testify that checkoff
authorizations were ever actually delivered to the Respond-
ent.
C. Interference, Restraint, and Coercion
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when, in late February or early March,
Gene Williams ‘‘coercively swore at employees when they
expressed a desire to sign union cards and requested union
representation.’’
The only suggestion of negative comments toward the
Union by Williams appears in testimony by Jay Logan and
Glen Pride. Logan related that the day after Terven’s initial
appearance, Williams told both himself and Glen Pride that
he would not sign a union contract. He claims that both he
and Pride declared that they wanted the contract and wanted
to work with the Union. With this, Williams allegedly be-
came ‘‘agitated,’’ declaring that ‘‘the union was going to
screw us and he wasn’t going to sign a union contract.’’ Ac-
cording to Logan, these conversations continued, with Wil-
liams adopting an ambivalent stance, sometimes ‘‘cussing’’
and ‘‘complaining’’ about the Union and at other times stat-
ing that ‘‘he was going to do it for us guys.’’ Logan opined
that the employees were confused as to just what he was
going to do.
Glen Pride, though identified by Logan as present during
this exchange, testified that Gene Williams expressed no ob-
jection to the fact that they had signed, but wished them the
best. Concerning the contract, when not prompted by leading
questions, Pride averred that Williams declared that ‘‘as long
as we got our full cards, he didn’t mind signing the con-
tract,’’ while reiterating that the men were ‘‘going to get
screwed.’’ To this extent, Pride’s testimony made sense.14
The reference to ‘‘full cards’’ was admittedly understood as
a reference by Williams to documentation issued by the
Union to acknowledge that workers had achieved journey-
man status. His argument that the men would get ‘‘screwed’’
was consistent with testimony by Terven that Williams ex-
pressed concern that his employees would be replaced under
demands of a union contract, as well as Williams’ under-
standing expressed repeatedly at the hearing that employees
on this job, other than Schuler, did not qualify for contractual
benefits because they were neither in the Union’s apprentice-
ship program, nor journeymen pipefitters. In context, I find
the commentary that the men would get screwed by the
Union constituted legitimate argumentation protected by Sec-
tion 8(c) of the Act. Accordingly, I shall dismiss the 8(a)(1)
allegation attributed to Gene Williams under this com-
plaint.15
D. The Alleged Discrimination
1. The termination of Jay Logan
Logan was initially employed by the Respondent in No-
vember 1990. He worked on jobs in Claremont and Virden,
Illinois, before moving on to Heyworth. There is no denial
that these were the only jobs worked by the Respondent
since Logan’s hire. Nor did Williams attempt to refute testi-
mony that his crew was customarily transferred as he was
awarded new jobs.16
The Respondent suspended work at Heyworth on or about
April 3. On the following Monday, April 6, the Respondent
began another project in New Badin, Illinois, a job outside
the Union’s jurisdiction. Logan did not work at New Badin.
However, the Pride brothers and Brad Williams were trans-
ferred to New Badin.
At the threshold of the alleged discrimination in Logan’s
case is the question of whether he had declined to work that
job on an offer by the Respondent, and hence voluntarily
quit. Thus, Gene Williams testified that upon moving his
crew to New Badin, he contacted Logan, offering him work.
Williams asserts that Logan refused, suggesting that he use
Jerome Pride on that job.17
639WILLIAMS PIPELINE CO.
did Logan have reason, at the time, to assume otherwise. Moreover,
in actuality, since the crew at New Badin later would be increased,
the record does not warrant assumption that Logan’s preference im-
pacted upon Jerome Pride’s job opportunity at New Badin. I find
that the Logan made no any statement to Williams implying that he
would make room for the latter by abstaining.
18 The New Badin job continued for about 2 or 3 weeks. The oper-
ation then returned to Heyworth for completion of that job. Among
the blind alleys in this record, was testimony elicited from Terven
that the Respondent, before embarking on the New Badin job, left
Heyworth only to return in early April to perform ‘‘clean-up’’ work.
It is the sense of Terven’s testimony that thereafter the Respondent
left for new Badin, only to return to Heyworth on a second occasion
in mid-May. I believe that Terven was confused in this regard and
that his testimony related to a visit to the jobsite after completion
of the New Badin job.
19 Williams concedes that he had previously done this same work
in-house, using Marty Schuler.
20 Logan credibly testified that not once in his employment with
the Respondent had he received any form of discipline or criticism
concerning his work. Williams also testified that, at Heyworth, the
city had informed him that the Pride brothers and Logan were drink-
ing when off duty. Williams, who admitted to having a few himself,
admitted that this stopped after he told the men to stop parking com-
pany vehicles at the local saloon. He relates that their drinking had
a history that preceded the Heyworth job. Neither ‘‘loafing’’ nor
drinking affected employability of these individuals before the events
involved in this proceeding.
21 G.C. Exhs. 11 and 12. Also noteworthy are additional billings
that evidence separate 15-minute conversations, one on April 21 and
a second on April 27.
Williams testified that he returned to the Heyworth job in
May.18 His crew consisted of Brad Williams, Jeff Allen,
Mike Lusk, and Glen Pride. Mike Lusk and Jeff Allen, who
were hired at New Badin, worked as laborers and assisted
Glen Pride who did the pipefitting work, along with a local
licensed plumber that Williams retained under conditions
raising the possibility that he may have been an independent
contractor.19 He concedes that on returning to Heyworth,
Logan called to inquire about returning to work. Williams
adds that he informed Logan that demands on that job had
declined to the point where his service were not needed. It
is clear that, after April 3, Williams never again offered work
to Logan.
Logan squarely contradicts Williams’ testimony that he
was offered a job at New Badin. or that he was ever offered
employment after April 3. His explanation as to why he
failed to make the New Badin trip appears in the following
colloquy with counsel for the General Counsel.
Q. How did your employment with Gene Williams
come to an end?
A. I got out of the truck there at home Friday, was
the last that I ever worked for Gene.
Q. What, if anything, were you told about further
work?
A. I wasn’t really told. I knew we had the New
Badin job to do and I just assumed that we were going
to go right over on it.
Q. Did you ever go to work on the New Badin job.
A. No, I never did go to work?
Q. . . . You say you were never asked. Is there any
custom or practice regarding being asked to or told to
go to any particular job.?
A. Certainly. When we go from one job to the next,
you know, we talk about what time we was going to
leave out and what route we was going to take, we al-
ways talked about that.
Q. Who from the company would you speak with
about those details?
A. It would have been Gene Williams?
Q. What, if anything, were you told by Gene Wil-
liams about the New Badin job?
A. I never was really told anything about it. I more
or less asked him a time or two what the job consisted
of and we never talked much about that job.
More importantly, Logan testified that after April 3 he
telephoned Williams on numerous occasions and asked about
employment. He was put off, being told that he would not
be needed for a few days and to call back. When he again
called, the results were uneventful. Later after receiving a re-
port that his work at New Badin was being performed by a
newly hired 18-year-old nephew of Brad Williams, he
reached Williams asking, ‘‘why I wasn’t working and this
kid was . . . .’’ He was told that the individual was hired
at request of Brad Williams, who wanted his own personal
hand to ‘‘run and fetch for him.’’ In that conversation, Wil-
liams added that he felt there was a lot of loafing going on
and that ‘‘he was going to get rid of us one at a time to find
out who it was.’’20
I credit Logan over Williams. The latter was a basically
unreliable witness who piled excuse upon excuse for a vari-
ety of personal failures, few of which rang true. Logan’s ac-
count was corroborated by Glen Pride, an honest witness,
who testified that on April 6, Williams implied that he had
denied employment to Logan at New Badin. Moreover, apart
from demeanor, Logan’s account was more logical, and
backed by documentation. Thus, his April and May tele-
phone bills confirm that he initiated a number of calls to the
Respondent, including one on Saturday, April 4, and two on
Monday, April 6, the first lasting 13 minutes and the second,
6 minutes. Again on Tuesday, April 7, there were three sepa-
rate calls.21 These telephone billings are logically more com-
patible with the fact that Logan was pursing work in earnest
at the New Badin job. The record permits no other expla-
nation. It is inconceivable that Logan, during this timeframe,
found it necessary to initiate five telephone calls and to par-
ticipate in lengthy discussion just to advise Williams that he
did not wish to work at New Badin. I find that Logan did
not go to New Badin because the Respondent replaced him
on that job.
Having concluded that Logan was in fact discharged, the
sole defense proffered by the Respondent has been negated.
Hence the General Counsel’s ultimate proof responsibility is
limited to mere satisfaction of the prima facie case required
by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981). This is accomplished simply upon a showing
that warrants an inference that protected activity was at least
‘‘a’’ part of the employer’s motive.
I am unwilling to draw any conclusion that Logan’s mem-
bership or organizational activity might have had anything to
do with his termination. The Respondent signed an agree-
ment with the Union on March 3. Logan did not sign his
membership application and checkoff authorizations until the
next day. From all appearances on this record, Gene Wil-
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 As heretofore indicated, Terven allegedly issued permits on be-
half of the Pride brothers and Logan on the Heyworth jobsite. None
testified to receiving any such documents. In fact Glen Pride testified
that his curiosity as to when he would receive his ‘‘union card’’ was
never satisfied. Terven also testified that clearances were mailed to
the Respondent covering all three employees. However, on this doc-
ument, the clearance for the Pride brothers bears a date of March
3, 1992. Logan’s is dated November 6, 1992, well after his cessation
of employment with the Respondent. At the hearing, Gene Williams,
while still under oath, represented that he never received the clear-
ances. The discrepancy between the documents and Terven’s testi-
mony is not explained. In this light, I discredit Terven insofar as his
testimony is susceptible to interpretation that any permit or clearance
was mailed to the Respondent at times material to this proceeding.
23 Any sentiment expressed by these employees would be eclipsed
by the conduct of Brad Williams. Thus, according to Glen Pride,
Brad Williams, a backhoe operator, and a member of the Operating
Engineers Union had declared that he would not work this job if
performed nonunion. It is entirely possible that Brad Williams took
this stance on this job because the area was nonunion, thus, enhanc-
ing the chance that violation of his internal union obligations might
be detected.
24 As shall be seen, the Respondent’s position was correct as a
matter of contract. However, it furnished no defense under Federal
and state prevailing wage laws. These laws are designed to preserve
local rates in the construction industry against erosion from outside
labor paid to perform particular crafts at lower rates. This latter prac-
tice is discouraged by requiring all contractors to pay the prevailing
rate as to each type of craft work performed whether the the workers
be qualified journeymen or within an established apprenticeship pro-
gram. Simply put, the obligations incurred under prevailing wage
laws are not avoided by hiring the unskilled to perform in skilled
areas. Yet, as shall be seen, the Charging Party’s contract prescribes
no wage scale for those not classified as journeymen or apprentices.
25 G.C. Exh. 10.
26 The evidence does not establish that Williams was aware that
Logan had that Logan had delivered the pay stubs to Terven. Logan
did not testify that this was the case, but simply offered that Gene
Williams knew that he had spoken with Terven that day. However,
this was not uncommon as the men, during Terven’s visits to the
job, often conversed with him within eyeshot of Williams. Logan’s
testimony as to the paystub exchange merely suffices to place the
incident within this general category.
27 Terven, having received the paystubs, contacted the Illinois De-
partment of Labor by phone requesting an investigation, explaining
that he was making the contact because the employee affected was
afraid that he would lose his job if he reported on his boss. By letter
dated March 23, Terven formalized the request for action by the
State. G.C. Exh. 22. Williams denied that Terven had complained to
him, during this time period, concerning the nonpayment of pre-
vailing rates for pipefitters work. I credit the more plausible testi-
mony of Terven, which received indirect confirmation from Logan
as well as the formal complaint he made to the State.
28 The nature of the language used is undisclosed. Hence, whether
it was inherently coercive, abusive, or generally profane is not sub-
ject to independent assessment.
29 Logan identified the Pride brothers, and possibly Brad Williams,
as present on that occasion. Only Glen Pride testified and an attempt
was made, through him, to corroborate Logan. However, the only
testimony exacted was a declaration allegedly made by Williams that
‘‘he could just hire and fire whoever he wanted.’’ There was no in-
dication as to when the remark was made or just what might have
prompted it. In fact Pride could not recall any conversation with
Williams in which the latter was accused of not paying the pre-
vailing wage. That gap is not filled by Logan’s testimony that a few
days later, he overheard a conversation at the jobsite between Gene
Williams and an inspector employed by Farnsworth & Wiley, the en-
gineering firm on the job. As Williams complained that the Union
liams was never furnished these documents nor made aware
of their execution.22 Although Logan testified that earlier, he
and the others, including Jerome Pride had told Williams that
they wanted him to sign a contract, I do not believe that in
actuality, or in the mind of Gene Williams, the sentiment of
Logan and the Pride brothers was of any influence to his
willful April 3 execution of either labor contract. I believe
it more compelling that Williams was operating in a pre-
viously uncharted territory and was guided by other pressures
in electing to operate this job pursuant to union contracts.23
On this issue, the Respondent is entitled to the benefit of the
doubt, and I am unwilling to infer that the General Counsel
has demonstrated that organizational activity on the part of
Logan, to any extent contributed to his termination.
However, there are other manifestations of union activity
that are protected by the Act. In this connection, Logan testi-
fied, without contradiction, that his duties at Heyworth in-
cluded the assembly of 4 and 6 inch PVC pipe, fittings,
valves, and things of that nature. This would fall within the
traditional craft jurisdiction of the Charging Party and the
agreement signed on March 3 by the Respondent. Under the
laws of Illinois, on the Heyworth job, the Respondent was
obligated to pay the prevailing wage scale for that type of
work. Terven credibly testified that the rate required by law
for pipefitting work was identical to that set forth in its col-
lective-bargaining agreement. Williams concedes that he paid
the Heyworth crew at laborers’ rates irrespective of the work
performed, and argued that because none were journeymen
pipefitters they were ineligible for any higher rates.24
Logan testified that during March, after he signed with the
Union, he spoke to Marty Schuler about wages. The latter in-
dicated that the men were not being paid according to scale.
The next day, Logan and Jerome Pride went to the union
hall, where they informed Rick Terven of their rates. He
agreed that they were not even being compensated at the
‘‘prevailing wage’’ for the job required by the Government.
Terven requested that Logan provide his paystubs.
Terven testified that after his meeting with Logan and Je-
rome Pride, and learning from Schuler that the Respondent
was not paying the required wage, on or about March 20, he
visited the job, where he informed Williams that the men had
to be brought up to the prevailing wage. Williams replied
that his wage levels were in conformity with the Union’s re-
quirements.
Terven confirmed that on that visit, Logan provided him
with two paystubs as he had requested.25 According to
Terven, Logan requested that this be maintained in con-
fidence ‘‘because he wanted his job, he wanted the money
he deserved, but he didn’t want to cause a fracas because he
was afraid he would lose his job.’’26 Terven testified that he
gave no information to Williams that would identify who had
reported the wage discrepancy.27
On the issue of knowledge, according to Logan, the day
after his visit to the union hall with Jerome Pride he in-
formed Gene Williams ‘‘that the business agent at 99 said
he wasn’t paying prevailing wage on the job.’’ In response,
Williams, allegedly ‘‘swore,’’28 declaring, ‘‘I can work any
kind of hand I want to, carpenters, laborers, fitters, anybody
I want to work on the job.’’29 Additional light is cast on
641WILLIAMS PIPELINE CO.
was giving him trouble, the inspector informed that if they were
doing pipefitters work they had to be paid the pipefitters rate.
30 Jerome Pride apparently signed his union membership docu-
ments on March 2. G.C. Exhs. 18, 19, and 20. However, his ‘‘Appli-
cation for Membership’’ bears the signature date of ‘‘2/5/92.’’ G.C.
Exh. 18. The discrepancy was unexplained.
31 My conclusions in this regard are not altered by further testi-
mony by Glen Pride that shortly after Jerome Pride’s explosion, he
had a conversation with Williams in which the latter stated that he
was willing to recall either of the Pride brothers, that he did not care
which one, but that only one was needed. The quit by Jerome Pride
ended any speculation as to what would have been his fate there-
after.
Williams’ failure to retain Logan at New Badin by Glen
Pride whose testimony as a whole reflected an objectivity not
always found on the part of an alleged discriminatee. Pride
testified that on the Monday after Logan’s termination, he
asked Williams why Logan was not working. The latter al-
legedly replied:
[T]here was too much talking going on and he was
going to be a stop to it, one way or another.
When Pride inquired as to the nature of the ‘‘talking,’’ Wil-
liams allegedly stated that Logan knew what he was talking
about. The testimony of Logan and Glen Pride stands
uncontradicted and is credited. Against the background of
what had transpired at Heyworth, there is no suggestion that
the reference to talking pertained to anything other than that
which led to the Union’s intervention to enforce payment of
scale allegedly due under both union contract and Illinois
statute. I find that an inference is warranted that Jay Logan’s
conversations with coworkers concerning prevailing wage
issues and his enlistment of the Union’s support in that en-
deavor was suspected by Gene Williams, and ultimately led
to his termination. Accordingly, and as the Respondent has
failed to produce any credible proof that Logan would have
been terminated even if he had not engaged in such activity,
it is concluded on balance, that the General Counsel has es-
tablished by a preponderance of the evidence that Logan was
discharged in violation of Section 8(a)(3) and (1) of the Act.
2. Jerome Pride
Unlike Logan, the Pride brothers worked at New Badin.
On arrival they found that two newcomers; namely, Johnny
Williams (Brad’s nephew) and Jeff Allen, were on the job.
According to Glen Pride, after working a few days, Gene
Williams declared:
[T]here ain’t enough work for all you boys, so a couple
of you are going to have to stay home.
In consequence, he and Jerome were selected for a tem-
porary, 2-day layoff. According to Glen Pride, the other three
employees continued to work.
The Pride brothers were not discharged, as the complaint
alleges, but both quit. By way of posthearing brief, counsel
for the General Counsel argues that they were constructively
discharged. In support, the General Counsel observes:
The Board has held that a constructive discharge occurs
when an employer imposes burdens upon an employee
which cause, and are intended to cause, a change in
working conditions so difficult or unpleasant as to force
the employee to resign.
By definition, the violation turns upon the alleged
discriminatee’s reasons for quitting. Jerome Pride was not
available to testify. The only evidence that might bear upon
the intent behind his resignation was supplied by Glen Pride.
Thus, when questioned by counsel for the General Counsel
as to why Jerome Pride quit, Glen Pride answered:
[Jerome] got mad because he was needing the work, the
work was there, but Gene wasn’t working. He was
working Johnny, Jeff and Brad. . . . [T]hen Jerome got
mad and wanted to know why he wasn’t working and
everybody else was working. Jerome told me he would
whip his ass. . . . Jerome said Gene didn’t fire him. Je-
rome just said, take a flying leap and never did show
back up for work.
It is difficult to understand why this allegation has been
pursued. People leave jobs every day for a multitude of rea-
sons having nothing to do with statutory concerns. Their
public explanation are not always accurate. This record con-
tains no direct primary evidence as to just what prompted Je-
rome Pride to do so. His true concerns were never verified
under oath, and could not be tested through cross-examina-
tion. In short, the only evidence tendered in this regard was
uncorroborated hearsay in its rawest form.
Jerome Pride’s case is flawed in other respects. Even were
the above evidence probative, the premise for a constructive
discharge is lacking. The law does not afford a remedy to
all union sympathizers30 who quit their jobs just because the
boss has made them unhappy. See, e.g., Algreco Sportswear
Co., 271 NLRB 499, 500 (1984); Adscon, Inc., 290 NLRB
501, 502 (1988). The complaint in this case not only omits
allegation of any constructive discharge or that Jerome Pride
quit because of an intolerable condition of work, but it also
fails to contest the legitimacy of the temporary New Badin
layoff. See, e.g., Comfort Inn, 301 NLRB 714, 717, fn. 17
(1991). That issue has not been litigated, and under no cir-
cumstances might it be presumed unlawful. I am aware of
no precedent deeming a layoff of a union sympathizer, even
though out of seniority order presumptively intolerable. In
these circumstances, any grievance held by Jerome Pride as
to his layoff would not suffice to convert his voluntary quit
to a constructive discharge.
For all the above reasons, the claim that Jerome Pride was
victimized by discrimination is viewed as basically frivolous.
On the one hand, it is unsupported by evidence meeting
basic standards of reliability. Moreover, even if probative,
this explanation for his resignation would not warrant Board
intervention. The 8(a)(3) and (1) allegations in his case are
dismissed.31
3. Glen Pride
Glen Pride was hired in 1990, and according to his
undenied testimony worked thereafter whenever Gene Wil-
liams landed had a job. He laid water lines and also installed
taps connecting water lines to homes. As indicated, he signed
his union membership documents on March 2. (G.C. Exhs.
15, 16, and 17.) Glen Pride testified that Gene Williams
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
knew that they had signed, but expressed no objection. In
wishing them the best, Williams opined that the men were
‘‘going to get screwed.’’
Glen Pride admits to having quit. His separation would
have occurred about 2 months after he attempted to join the
Union. Thus, once recalled from the 2-day layoff, he re-
mained on the New Badin job to its conclusion. He then
joined the crew in the return for completion of the Heyworth
project. However, he quit while the job was still in progress,
explaining his action as follows:
After the end of the New Badin job, it was every-
body was working there was all relat[ed] and me and
they went back to the Heyworth job and still the same
bunch of guys, all relat[ed] and me. I couldn’t get no
one hardly to talk to me except Mike Lusk. He would
correspond with me and . . . I could just see the dag-
gers coming all the time and I told Gene,—the very last
thing that got me was Johnny there. He was on the
tractor there, it was pouring down rain and I was down
in the hole and mentioned to him, Johnny to pick up
a stringer—we was boring under the highway and I
asked him to pick it up so when he pulled it it wouldn’t
dig into the ground. Johnny said, you are working the
ditch, I am working the tractor, you stay down there
and I will stay up here. Mike was right there, he heard
it all. I said okay and we got the rod out of the ground
and I told Mike, that’s all I’m going to take, I am leav-
ing. I told mike I am going to tell Gene and I told
Gene, there’s nothing against you and I have no hard
feelings, I don’t wish you no trouble or nothing, but I
just can’t work under these conditions. You guys are
treating me like the black sheep out here and I just as
soon not work under these conditions.
I said if its all right with you, I am going to go on
home. He said,—I told him, I wouldn’t expect nobody
to work under that, if I was the boss and . . . .
[t]reated one person that way. Gene said I understand,
and I went right on home. I told Mike Lusk I was
going to tell him about it. Mike tried to get me to stay
until the end of the week and I think that was on
Wednesday when I quit.
As in the case of Jerome Pride, nothing in the complaint
placed the Respondent on notice that the General Counsel
would assert or attempt to prove that Glen Pride quit his job
under conditions warranting statutory intervention. Unlike Je-
rome Pride, however, the reasons for quitting are substan-
tiated by direct, primary evidence. Yet, here again the proof
is flawed. This is not a classic constructive discharge situa-
tion. The onerous condition of work was ascribed by the
discriminatee to coworkers, rather than management.
Consistent therewith, there is no direct evidence that Gene
Williams was a contributing force behind any discomfort
caused Pride by his coworkers. The possibility of inferring
any accountability on his part is complicated by a number of
factors. The first relates to the ambiguous quality of the Gen-
eral Counsel’s proof. Glen Pride’s self-described reasons for
quitting were not shown to originate with anything more than
interpersonal differences that could have been more imagined
than real. Cf. Santa Rosa Blueprint Service, 288 NLRB 762,
789–793 (1988). Their evaluation requires an appreciation for
the fact that disharmony is no stranger to the workplace.
Managers often will have no influence over the prejudices
and personality differences that contribute to a worker’s dis-
comfort on the job. In this light, it is not surprising that Glen
Pride reacted to the entire incident by telling Williams,
‘‘there’s nothing against you and I have no hard feelings.’’
Additionally, Glen Pride did not present himself as a likely
candidate for any unlawful recriminations. According to his
own account, he merely completed documents necessary to
join the Union and conveyed to Williams that by doing so
he hoped to achieve journeyman recognition. Although Gene
Williams was aware of his hopes and argued that they would
not be fulfilled, according to Pride, Williams otherwise
voiced no objection. Moreover, as indicated, I am no more
convinced that Logan and the Pride brothers had any more
to do with Williams signing with the Charging Party, then
they did with his signing with the Laborers Union. If any
employee could be blamed for unionization of the job, it was
Brad Williams, a member of the Operating Engineers Union,
who threatened to quit rather than work nonunion in the
Heyworth area.
It is true that Williams was angered and moved to dis-
criminate more than a month earlier by his hassle with the
Union over prevailing wage rates. However, Glen Pride
distanced himself from that process. He emphatically denied
having complained or to have ever actively discussed that
issue. He professed total innocence in that regard by the fol-
lowing:
I didn’t know what the pay scale was, how was I to
say anything [sic]? I don’t know nothing about that.
Nobody told me, the only thing I know is you made
that adjustment up on the Virden job. . . . I just
worked, that is all I did with Gene, is work. I didn’t
want no trouble or nothing.
Upon the foregoing, the prima facie case of discrimination
turns entirely upon suspicion and argumentation, not proof.
In the area of organizational activity, the evidence does not
warrant a conclusion that Glen Pride would have been sin-
gled out for discrimination on that basis. Unlike Jay Logan,
on the prevailing wage issue, I am unwilling to infer that
Glen Pride was suspected of this employee effort that he nei-
ther participated in, nor supported. Were I to embrace that
suspicion, I would not carry the speculation to the next step,
by endorsing the unsupported argument that, because Wil-
liams opposed that activity, he might have believed that Glen
Pride was a participant. Finally, were I to ignore the lack of
support for either of these inferences, in the final analysis,
I would not find, again absent evidence to that effect, that
Williams would have acted upon that suspicion by encour-
aging coworkers to shun or express negative feelings toward
the alleged discriminatee. In sum, the General Counsel has
failed to furnish evidence warranting any reasoned basis for
inferring that the Respondent was responsible for, or that
union or protected concerted activity contributed in any de-
gree to, the conditions prompting Glen Pride to quit his em-
ployment. The 8(a)(3) and (1) allegation in his case shall be
dismissed.
643WILLIAMS PIPELINE CO.
32 No other work was performed by the Respondent with the
Union’s geographic jurisdiction.
33 The contract applied to this final stage of the Heyworth job. Al-
though scheduled to expire on April 30, in agreement with the Gen-
eral Counsel, I find that it was automatically renewed for an addi-
tional year pursuant to art. XXVII, sec. 27.1(3) thereof.
34 The record includes a check received by Logan on April 27,
well after his termination. It bears a documented description as a
‘‘Heyworth correction.’’ Logan could not clarify whether this per-
tained to prevailing rates, fringes, or both. G.C. Exhs. 13 and 14.
Both sides place unacceptable interpretations on this payment. The
General Counsel states that this was in response to demands on the
Respondent by the Illinois Labor Department. However, Williams
denied that this was the case, and Glen Pride testified that he re-
ceived a correction check, but not for this job. Moreover, it was my
impression from the record that correction checks similar to G.C.
Exh. 4 were issued on various occasions before, during and possibly
after completion of the Heyworth job. For this reason, Williams tes-
timony, because of the shifting contexts, appeared to be inconsistent
when in fact it might have been quite accurate. Thus, contrary to the
General Counsel, this payment is not among my reasons for discred-
iting Williams. At the same time, the Respondent argues that this
check, and Williams testimony that he paid the ‘‘benefits’’ substan-
tiates that fringe benefits were in fact paid, albeit, directly to em-
ployees. Here too, there is a void in the record, for the proof does
not disclose that checks were issued simultaneously to all employees
who performed pipefitting work or the nature and extent of the pay-
ment. In any event, assuming that art. III of the contract applied, it
would require direct payment to the trust funds, and payment to the
employees would not comply.
35 G.C. Exh. 3.
E. The Refusal to Bargain
1. Preliminary statement
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by repudiating its collective-bar-
gaining agreement by failing to adhere to particularized
terms in the area of (1) benefit fund contributions, (2) con-
tractual wage rates, (3) checkoff, and (4) referral/hiring pro-
cedures.
Insofar as relevant to this proceeding, the Union’s con-
tract, and the alleged breaches, and any violations found, as
well as the recommended remedy, pertain solely to those of
Respondent’s employees actually performing plumbing and
pipefitting work during either stage of the Heyworth job.32
2. The referral/hiring procedures
As to (4) above, article X of the collective-bargaining
agreement establishes an exclusive, 48-hour hiring hall ar-
rangement. By virtue thereof, signatory employers are barred
from hiring directly, without clearance or referral by the
Union, any employee utilized, either wholly or partially, in
the performance of work covered thereby. Prior to New
Badin, there is no evidence that these procedures were of-
fended in the case of any employee of the Respondent en-
gaged in such work. However, upon return to the Heyworth
job in May, the Respondent’s crew consisted of Brad Wil-
liams, Jeff Allen, Mike Lusk, and Glen Pride. Mike Lusk and
Jeff Allen worked as laborers but also assisted Glen Pride
who did the pipefitting work, along with a local licensed
plumber that Williams had retained.33 According to Terven,
after the return to Heyworth, when he first visited the job un-
identified employees were observed in ‘‘cleanup’’ activity
that he defined as follows:
Cleanup means going around and making sure that the
ground is back to normal where they replaced the main,
put the ditches back in, that they have barricades where
they needed to be located, they have the curb boxes set.
If there are any taps that need to be made, that they’ve
got ditches open, they were doing that.
Terven credibly identified this as work covered by his
Union’s contract.
Yet, in May, the Respondent utilized employees other than
Glen Pride in such work. Neither Lusk nor Allen were hired
through the Charging Party’s hiring hall. Williams admitted
that both would periodically ‘‘help with the pipe.’’ Any va-
garies in this admission were eliminated by undisputed testi-
mony on the part of Terven that, during a second visit to the
jobsite in mid-May, he observed Glen Pride in a ditch with
two unidentified individuals ‘‘installing piping.’’ He testified
that all were performing ‘‘plumber or pipefitter work.’’ He
relates that he confronted Williams with the fact that fringe
benefit contributions had to be made on behalf of these indi-
viduals, complaining further that they had not been cleared
by the union hall. Williams allegedly became angry and in-
structed Terven to leave the property. Although the record
does not identify these individuals, in light of evidence that
Pride was the only crewmember working under a union per-
mit, I am convinced that the others identified as performing
unit work were not hired in accord with the contractual refer-
ral provisions. To this extent, the evidence demonstrates that
the Respondent repudiated a contractual term in violation of
Section 8(d) and 8(a)(5) and (1) of the Act.
3. Fringe benefit contributions; union scale
Article III of the labor contract specifies the hourly scale
and fringe benefit contributions to be paid by signatory em-
ployers on behalf of two classes of employees. Thus, sepa-
rate schedules are listed for ‘‘Journeymen’’ and ‘‘Appren-
tices.’’ See also articles XVI, XVII, and XVIII. (G.C. Exh.
4.)
The record establishes that, except for Marty Schuler, the
apprentice referred by the Union, the Respondent did not pay
contract wages or remit fringe benefit contributions during
periods when its employees were engaged in pipefitting work
at Heyworth.34 Williams admitted that the latter were paid at
the laborer rate no matter what work they performed. Terven
testified that after receiving the documentation accompany
Schuler’s contributions,35 he contacted Gene Williams con-
cerning the omission of the other three employees, presum-
ably the Pride brothers and Jay Logan. In addition, before
being kicked off the job during his May 19 visit, Terven as-
serts that he told Gene Williams that fringe benefit contribu-
tions had to be made on behalf of the individuals he had just
observed performing work covered by the contract.
At the hearing, Williams maintained that the contract only
prescribed rates for journeymen and apprentices, since his
employees were not in either category, they were not eligible
for compensation under the labor contract. On this record, I
agree. There is no showing that these individuals had
achieved journeyman status, nor that any were any enrolled
in an apprenticeship program.
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 In fact, until such time as the Union either enters the Respond-
ent’s employees in an apprenticeship program; or confers journey-
man status upon them; or forces, in some other forum, their replace-
ment under the contractual hiring hall arrangement, the existing con-
tract will impose little, if any, monetary obligation upon the Re-
spondent.
37 It is entirely likely that the Respondent’s pay practices violated
the Illinois prevailing wage law. Thus, Terven testified credibly that
union scale equaled the prevailing rate for journeymen and appren-
tice work under the Illinois statute. Unfortunately, the criteria for
ascertaining obligatory rates of pay under the contract and the pre-
vailing wage laws are materially distinct. Thus, notice is taken that
the statutory rates apply depending solely on the nature of the work
performed. Under this test, the fact that the affected employee is nei-
ther a journeyman nor apprentice furnishes no defense. Were con-
tractual eligibility for benefits based on such a standard, the breach
would be clear. However, in contrast with state law, the collective-
bargaining agreement prescribes rates/fringes on the basis of the in-
dividual’s recognized skill classification, without defining any rates
for others even when they perform work covered by the contract.
38 Were I convinced otherwise, I would reject Williams’ expla-
nation that he did not understand the fringe benefit contribution
form, and was told by the Union’s secretary that ‘‘she would fill it
out and put the amount and all I had to do was write the checks
back.’’ Obviously, the secretary would lack knowledge as to which
employees engaged in covered work, or for how long. It is incon-
ceivable that anyone affiliated with the Union would excuse Wil-
liams from reporting matters within his peculiar knowledge. More-
over, I credit Terven that he complained about the omissions. The
demand having been made, Williams, if obligated, would have held
a duty to inquire.
The work covered by the contract is broadly defined.
However, the definitions of hourly rates and fringe benefit
contributions are not based upon the nature of the work per-
formed. Instead, these figures are embodied in schedules that
specifically apply only to ‘‘Journeymen’’ and ‘‘Appren-
tices.’’ The limited scope of the pay and fringe schedules is
understandable. For, the contract, on its face, appears to have
been drafted on assumption that signatories will hire only
those whose skill levels either are established by their status
as certified journeymen or are under development through
participation in a recognized apprenticeship program. The
premise is an outgrowth of the skilled trades’ traditional and
historic attempt to protect the quality assurances inherent in
the represented craft against erosion from the untrained and
unskilled. Those ends are accomplished by the hiring scheme
evident in the instant contract. Under article X, section 10.3,
the Employer is obligated to request ‘‘the Local Union to
refer competent and skilled Journeyman and Apprentices.’’
As for the rank-and-file complement, employers are allowed
to engage in direct hiring solely under conditions set forth
in section 10.9, which states as follows:
If, upon request, the Local Union is unable within
forty-eight (48) hours to supply Journeymen, including
Journeyman with special skills, the employer may se-
cure Journeymen from any other source.
There is no provision allowing direct hiring, under any cir-
cumstances, of the unskilled and the untrained. Against this
background, it is understandable that the governing collec-
tive-bargaining agreement omits an ‘‘Economic Package’’
covering employees who are neither journeyman and appren-
tices. It is entirely conceivable that provision for the un-
skilled was consciously omitted because of contractual bans
upon hiring those whose qualifications are uncontrolled, and
hence might fall beneath accepted industrial standards for the
craft.
Terven organized the Heyworth job by consenting to a
special arrangement. Williams had resisted the contract be-
cause he was concerned that his incumbent employees would
be replaced. Terven assuaged him by approving the use of
his existing nonjourneymen and nonapprentices to perform
pipefitting work. This eclectic solution amounted to a square
peg that simply would not fit the proverbial round hole, pro-
vided by the Charging Party’s collective-bargaining agree-
ment. That document was multiemployer in scope and sought
to maintain a competitive balance among all signatories. The
concessions made by Terven could not be conferred on the
unit-at-large without threatening the integrity of the craft and,
as a corollary, the income and job opportunities of qualified
apprentices and journeymen. Thus, for valid reasons, the
standard form agreement includes no provision, inconsistent
with overarching, wholly desirable need for craft preserva-
tion. Nowhere does it allow for the performance of pipe-
fitting work by untested, uncertified labor.
Under the agreement, this latter segment of the work force
is ignored by basic provisions defining wages and fringe
benefits. Instead, obligations in these areas are imposed only
in the case of ‘‘Journeymen’’ and ‘‘Apprentices.’’ Except for
Schuler, not one of the Respondent’s employees at Heyworth
fell within either ‘‘Economic Package’’ set forth in article
III. In essence, Terven had used a boilerplate agreement that
lacked the flexibility necessary to accommodate his arrange-
ment with the Respondent.36 The General Counsel points to
no provision of the collective-bargaining agreement, and I
have found none, that requires signatory employers to pay
specified hourly wages and fringe contributions on behalf of
those who had not achieved journeyman status or who were
not enrolled in a recognized apprenticeship program. This
void precludes any finding of mutual assent concerning the
basic pay and fringe benefit issue, and I am unwilling to pre-
sume the existence of any agreed-upon, binding obligation in
that regard. Instead, it is my view that the Union entered an
arrangement which, in legal effect, deferred appropriate com-
pensation of the employees in question to prevailing wage
laws.37 In short, there is no showing that the Respondent’s
failure to make fringe benefit contributions and its payment
of laborers’ rates for pipefitting work violated any particular
obligation embodied in the contract, and, accordingly, it fol-
lows that the Respondent did not violate Section 8(a)(5) and
(1) on either count.38
4. The failure to remit union dues
As for the nonpayment of dues, Terven testified that on
May 19, he intended to show Gene Williams the cards exe-
cuted on March 3, but was prevented from doing so by Wil-
liams’ outburst. There is no evidence that the Union made
any attempt prior to May 19 to submit the checkoff author-
izations to the Company. Nor is there evidence that, after
that date, an attempt was made to serve these documents by
mail. The Union knew or should have known that the Re-
spondent would be in violation of Section 302 of the Act
were it to remit dues if not possessed of, or aware of em-
ployee authorizations. See Section 302(c)(4). Accordingly,
the record fails to demonstrate that a foundation had been
645WILLIAMS PIPELINE CO.
39 There is no evidence that the Union ever acted favorably upon
the applications for membership. There can be little question that the
employees executed their checkoff authorizations solely because they
expected full union membership. Serious question would exist as to
whether the Employer could not legitimately remit, nor could the
union accept, ‘‘membership’’ dues of employees who, in these cir-
cumstances, were refused any vestige of union membership.
40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
41 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
laid under article XXVI for the invocation of any checkoff
obligation. The Respondent did not violate Section 8(a)(5)
and (1) in this respect.39
5. Repudiation of the agreement
The evidence does not establish that the Respondent repu-
diated the contract. It was guilty of a single breach; namely,
the runaround of the hiring hall provisions in manning the
second and final phase of the Heyworth job. Beyond that, the
General Counsel, in her posthearing brief argues that ‘‘on
May 19 Williams made clear his intent to repudiate the con-
tract, by angrily running Terven off the job when Terven
protested these contract violations.’’ The incident proves
nothing. It boils down to no more than a squabble. While I
would agree that wholesale noncompliance could add up to
repudiation, absent a rationale or precedent to the contrary,
neither of which has been provided, I would find as a gen-
eral proposition that a mere ‘‘rhubarb’’ as to the scope of the
contract does not reflect upon a party’s intent to annul, or
actual annulment of any such obligations. In any event, in
this instance, the May 19 confrontation was provoked by
Terven’s insistence that the Respondent was contractually
bound to make payments on behalf of employees engaged in
performing pipefitting work. These demands were erro-
neously grounded, and Williams reaction to them was by no
means indicative of any comprehensive rejection of the
agreement. The 8(a)(5) allegation in this respect is unsub-
stantiated and shall be dismissed.
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. The Respondent violated Section 8(a)(3) and (1) of the
Act by, on April 3, 1992, discharging Jay Logan in reprisal
for his concerted discussion of wage issues and his enlisting
union support in that regard.
4. The Respondent violated Section 8(d) and Section
8(a)(5) and (1) of the Act by hiring employees to perform
work covered by its collective-bargaining agreement with the
Union, without first obtaining clearance or referral under the
contractual hiring hall procedure.
5. Except as specified above, the Respondent engaged in
none of the unfair labor practices alleged in the complaint.
6. The unfair labor practices found above have an affect
upon commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
The Respondent, having discriminatorally discharged Jay
Logan, shall be ordered to offer him immediate reinstatement
and to make him whole for any resultant loss of earnings and
other benefits. Backpay shall be computed on a quarterly
basis from the date of discharge to the date of a proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended40
ORDER
The Respondent, Williams Pipeline Company, Flora, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in a labor organization by
discharging or otherwise discriminating with respect to
wages, hours, or other terms and conditions or tenure of em-
ployment.
(b) Refusing to bargain in good faith by failing to hire em-
ployees in accord with the hiring arrangement set forth in a
subsisting collective-bargaining agreement.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain in good faith by following the hiring provi-
sions in our collective-bargaining agreement with the Union
in connection with the performance of all plumbing and pipe-
fitting work covered thereby.
(b) Offer Jay Logan immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision.
(c) Remove from files any reference to the unlawful dis-
charge of Jay Logan and notify him in writing that this has
been done and that the discharge will not be used against
him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at facilities in Flora, Illinois, copies of the at-
tached notice marked ‘‘Appendix.’’41 Copies of the notice,
on forms provided by the Regional Director for Region 33,
after being signed by the Respondent’s authorized representa-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including 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, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in Plumbers and
Pipefitters Local Union No. 99, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL–CIO or any
other labor organization by discharging or otherwise dis-
criminating with respect to employee wages, hours or other
terms and conditions or tenure of employment.
WE WILL NOT refuse to bargain in good faith by failing
to hire employees in accord with the hiring arrangement set
forth in our collective bargaining agreement with the Plumb-
ers and Pipefitters Local Union No. 99, United Association
of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL–CIO.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL honor the hiring provisions in our collective bar-
gaining agreement with the Plumbers and Pipefitters Local
Union No. 99, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO in connection with the
performance of all plumbing and pipefitting work covered
thereby.
WE WILL offer Jay Logan immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the decision of the administrative law
judge.
WE WILL remove from files any reference to the unlawful
discharge of Jay Logan and notify him in writing that this
has been done and that the discharge will not be used against
him in any way.