Excavation-Construction, Inc. v. N.L.R.B.

• Decision Date: 08 October 1981
• Docket Number: EXCAVATION-CONSTRUCTIO,No. 80-1267,INC,80-1267
• Citation: 660 F.2d 1015
• Parties: 108 L.R.R.M. (BNA) 2561, 92 Lab.Cas. P 13,044 , Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1015

660 F.2d 1015

108 L.R.R.M. (BNA) 2561, 92 Lab.Cas. P 13,044

EXCAVATION-CONSTRUCTION, INC., Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1267.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1980.

Decided Oct. 8, 1981.

Stephan J. Boardman, Washington, D. C. (Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., on brief), for petitioner.

Corinna Lothar Metcalf, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief), for respondent.

Before BRYAN, Senior Circuit Judge, and WIDENER and MURNAGHAN, Circuit Judges.

WIDENER, Circuit Judge:

The petitioner-employer, Excavation-Construction, Inc. (Company) seeks review of an order of the National Labor Relations Board (Board) finding that it violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by unilaterally implementing a change in the pay rate for Saturday work on its A-14 Rockville, Maryland project; that it violated §§ 8(a) (1) and (3) by discharging three employees engaged in a protected strike; that it violated §§ 8(a)(1) by interrogating Union Steward Gray about an upcoming union meeting; that it violated §§ 8(a)(1) and (5) by unilaterally increasing the pay rate from $8.30 per hour plus a benefits contribution of $.84 per hour to a straight wage of $9.14; and that the strike by Local 639 on August 14, 1978 was an unfair labor practice strike. The Board has applied for enforcement of its order under § 10(e) of the Act, 29 U.S.C. § 160(e). We deny enforcement.

The Company is engaged in general hauling and excavation work in the Washington, D. C. area. Teamsters Local 639 is the labor organization that has been recognized as the representative of its approximately 65 truck drivers.

In the spring of 1978, Local 639 began collective bargaining with a multi-employer bargaining association named Capital Area Trucking Association (Association) as well as with the Company on whose behalf the Association did not bargain. Prior to these negotiations, the Company was bound by a collective bargaining agreement between the Union and Construction Contractors Council. This prior contract contained provisions for time and a half pay for Saturday work without regard to other work done that week. In the negotiations with both the Association and the Company, the Saturday time and a half pay provision was an area of major dispute between the parties. The employers sought a make-up day provision, which is a provision allowing time and a half pay for Saturday except that in the event that inclement weather prevented normal work during the week, Saturday work would be paid at time and a half only for hours in excess of 40 during that week or 8 on the make-up day.

The negotiations between Local 639 and the Association concluded with a make-up day provision included. That provision was later rejected by the union members and the previous time and a half rate for Saturday was substituted.

In April 1978, Larry Campbell, the Company's General Manager, James I. Williams, Local 639 Vice President, and others met to begin negotiations on a new contract between the Union and the Company. As negotiations between Local 639 and the Association were ongoing at that time, the parties agreed to wait and see how those negotiations resulted. On May 19, negotiators for both sides met again, with the Union giving the Company a copy of the Association agreement, which at that point had not been ratified by the membership. That agreement contained a make-up day provision. Another meeting occurred on May 31, with the Company noting that it wanted a make-up day provision. Nothing definitive resulted, however, since the Association agreement had still not been ratified. A June 21 meeting resulted in nothing being decided. On June 23, the Association agreement was ratified absent the make-up day provision.

The Company claimed that it needed the make-up day provision because it had entered into a contract the previous May for the A-14 Metro project in Rockville, Maryland. That bid was made on the basis of a make-up day provision. Additionally, a supplemental collective bargaining agreement for other workers on that project contained language requiring time and a half pay if any other employees received the same.

On July 6, 1978, the Company sent a telegram to the President of Local 639 which stated:

SUBJECT: METRO JOB-A-14

DUE TO COMPETITIVE FACTORS, AND FOR OTHER GOOD AND SUFFICIENT ECONOMIC REASONS, IT IS THE INTENTION OF EXCAVATION CONSTRUCTION, INC. COMMENCING SATURDAY JULY 15 TO PAY STRAIGHT TIME FOR ALL HOURS WORKED EXCEPT TO THE EXTENT THAT EMPLOYEES WORK MORE THAN 40 HOURS IN ANY ONE WORK WEEK OR MORE THAN 8 HOURS IN ANY WORK DAY, BUT NOT BOTH. THIS MEANS NO PREMIUM PAY, AS SUCH, EXCEPT AS STATED. SHOULD YOU HAVE ANY QUESTIONS PLEASE CALL ME.

On July 11 another meeting occurred. The Company pointed out its problem with A-14 and stated that it would accept the Association contract if it had a make-up day provision for the A-14 project. Local 639 President George indicated that he just could not go to his members with such a request since they knew that everyone else would be getting premium pay. The Company asked for a concession the Union might accept but none was offered. The Union wanted the Association contract with no make-up day provision on A-14. The meeting ended with Union President George stating "I'll take it back to my people but I can tell you right now, they are not going to buy it."

On July 13, George sent a letter to Campbell protesting the Company's actions and stating that the Union would meet regarding the action of the Company as to the Saturday pay provision for A-14 as of July 15, which the Union considered unlawful unilateral action on the part of the Company. George also advised that a vote would be taken regarding a strike if the proposed change with respect to Saturday pay on A-14 was implemented. On July 14, the Company sent a telegram in reply which included its last and final offer, which was the terms of the Association contract with the exception of a make-up day provision for A-14. The Union met on the night of the 14th. After the Company's telegram was read to the members, the membership voted to reject the Company's last and final offer. The vote was 26-5. The following day, Saturday, July 15, the Company implemented the wage change for job site A-14.

Weekend work for the Company was voluntary, and no pressure was placed on employees to work on weekends. On Friday of each week, a determination was made as to how many employees would be needed to work the following day. Employees then voluntarily signed up to work. Once an employee had signed up, however, he was subject to dismissal if he did not show up for work. Employees did not know until their arrival at work on Saturday morning where they would be working. That decision was made by management on Friday night. Employees were notified of their Saturday job assignments by trip tickets placed in their respective mail slots.

On Saturday, July 15, drivers Robinson, Suggs, and Wellons reported for work after volunteering the day before. All three were assigned to job site A-14. Robinson was the first to arrive for work that day. Upon finding out his job assignment, he told Walter Jones, the truck superintendent, that he would not work A-14 because he had worked less than 40 hours that work week and therefore was not assured of receiving time and a half. ¹ Robinson asked to work at any other job, but Jones stated that no other jobs were available. Suggs and Wellons arrived shortly thereafter, and, like Robinson, refused to work job A-14. All three stated that they would work anywhere else but not A-14.

The three men returned to work the following Monday. They were all asked why they had refused to work the previous Saturday. Wellons stated that on Friday night they were told by the Union not to work for straight time on Saturday. Each agreed, noting that they refused to work because they were not assured that they would get paid time and a half. All were then discharged for refusing to work on the A-14 job on the past Saturday.

Negotiations between the Company and Local 639 continued in August, with the Company still wanting a make-up day provision and the Union opposed. At an August 9 meeting the Company asked the Union if it wanted anything in return for a make-up day provision. The Union responded with a request for a $.50 per hour wage increase for all employees. These August talks additionally included a discussion of the three discharged employees, with the Company agreeing to reinstatement but no back pay. The Union also rejected a me-too offer.

On August 12, 1978, Campbell met with Union Steward Gray in Campbell's office. The two discussed the three discharged employees, with special attention paid to Suggs because Gray thought that he had gotten a bad deal from the firing. Campbell inquired as to whether a vote would be taken at the Union meeting scheduled for the next day. Gray stated that he did not know of any vote being taken at that meeting. Gray stated that he thought the meeting was going to deal with the three discharged employees and with a problem some of the employees were having regarding their pay. The meeting concluded after a discussion of the events leading up to the dismissal of the three drivers.

On August 13, 1978, the Company's employees belonging to Local 639 voted to strike. Among the reasons behind the strike which were discussed at that meeting were the failure of contract negotiations because of the Company's insistence on a make-up day provision and the dismissal of the three employees. The strike began the following day. On August 16, 1978, the Company advertised in Baltimore and Washington newspapers...