Boilermakers share in $12 million Fluor Daniel settlement

Twelve million dollars is big money, as this mock, oversized check symbolizes. Celebrating the record settlement are, l. to r., IVP-ISO Warren Fairley, Blake & Uhlig attorney Mike Stapp, IP Newton Jones, ED-CSO Kyle Evenson, United Association Asst. Gen. Pres. Stephen Kelly, IVP-WS Tom Baca, and IST Bill Creeden.

History-making payment ends nearly two decades of litigation over antiunion hiring practices in construction industry

INTERNATIONAL PRESIDENT Newton B. Jones announced in October that 50 Boilermakers will share in a record $12 million settlement with Fluor Daniel Inc. over the firm’s antiunion hiring practices. The IBB is one of three international unions that brought charges against Fluor Daniel in the early and mid-1990s, alleging the company discriminated against union members in Kentucky, Louisiana, and Arizona in violation of the National Labor Relations Act (NLRA).

The two other charging parties include the International Brotherhood of Electrical Workers (IBEW) and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (UA). A fourth union, the United Brotherhood of Carpenters (UBC), joined the litigation as an intervener — a party that has some bearing on the case, but which does not have a substantial or direct interest.

A total of 167 union members will receive back pay and interest payments ranging from $8,000 to $217,000.

“The 2009 settlement agreement ends nearly two decades of litigation involving Fluor Daniel’s refusal to hire voluntary union organizers,” said Jones.

“This is a substantial amount of money, and all of it will be divided among union members. In fact, this settlement is the largest of its kind. The Boilermaker Fight Back construction organizing strategy and other building trade organizing programs have once again exposed the lengths to which some employers will go to deny workers the right to engage in union activity protected under the NLRA.”

Unions employ innovative organizing strategies

DEVELOPED BY THE Boilermakers in the early 1980s, Fight Back grew out of the need to counter a growing nonunion construction sector. A similar program known as COMET (Construction Organizing Membership Education Training) is promoted by the AFL-CIO Building and Construction Trades. Both strategies rely on volunteer union organizers to obtain work on nonunion sites and attempt to organize them.

Like many nonunion construction firms, Fluor Daniel (in the cases resolved by the $12 million settlement) discriminated against union organizers applying for work. Rarely were the union applicants given any consideration for employment, even though they often possessed superior skills and experience. Refusing to consider or refusing to hire on the basis of union affiliation violates the NLRA.

However, violating a worker’s right to protected union activity often carries only minor penalties. Offending companies typically are required to make the worker whole and promise not to do it again. Individuals acting alone often do not have the legal resources or determination to stay on the case until justice has been achieved.

The process takes time. In the recent settlement, the oldest of the cases took 19 years to resolve. The 50 Boilermakers and the other craftsmen involved in the Fluor Daniel cases were successful because they had the backing of their unions. The Boilermakers relied on attorney Mike Stapp and the Blake & Uhlig law firm to stay on the case until their members got relief.

Noting that many similar cases have been successfully resolved over the past three decades (including several smaller payouts by Fluor Daniel), Stapp called the most recent settlement agreement “the jewel of all Fight Back cases.”

Fluor Daniel is repeat offender

THE CURRENT SETTLEMENT resolves three sets of unfair labor practice (ULP) charges. The first charges, filed by the Boilermakers in 1990, alleged that Fluor Daniel refused to hire union members to work power plant outages for Big Rivers Electric Company in Kentucky. In 1991, the NLRB found (and the Sixth Circuit Court of Appeals later upheld) that Fluor Daniel broke the law. In some instances, the firm offered more difficult welding tests to union workers than to nonunion workers.

Writing in a supplemental decision, Administrative Law Judge Martin J. Linksy stated: “The law is crystal clear that union affiliated applicants for employment cannot lawfully be discriminated against in employment.”

The Big Rivers Electric Company organizing effort was led by Barry Edwards, now a retired International Rep.

In 1994, in a case involving a project at the Palo Verde Nuclear Generating Station in Wintersburg, Ariz., led by Gary Evenson (AIP, D-CRS), the Boilermakers filed similar charges of discrimination. A year later, the IBEW and UA filed charges against Fluor Daniel for hiring discrimination affecting union organizers seeking work on Exxon’s Baton Rouge, La., refinery.

The NLRB combined the Palo Verde and Exxon cases for litigation. Among other deficiencies in Fluor Daniel’s argument, the Board found the following:

Staffing practices at both projects reflected the Respondent’s [Fluor Daniel’s] corporate animus against union activist applicants. At Palo Verde, the Respondent failed to consider the obvious and natural source of qualified workers, the incumbent workforce, and recruited from elsewhere in the country to avoid the risk of hiring organized craft employees. Recruiters at both projects drew heavily on the national pool of former employees with undesirable records. The Respondent went to substantial effort and expense — paying per diem to nonlocals, paying for advertising, sending mass recruitment mailgrams, and paying subcontractors — to avoid considering the qualified activist journeymen whose applications were still present in its office in “inactive files.” [Fluor Daniel, Inc. 333 NLRB No. 57 (2001), page 12]

In the Palo Verde case, Fluor Daniel won a contract for nuclear power plant maintenance that had formerly been held by Bechtel Corporation, a heavily-unionized contractor. Despite the established security clearances held by former Bechtel workers, along with their extensive nuclear experience and established skills, Fluor Daniel denied employment to them, often hiring workers with little or no nuclear experience, according to the NLRB.

Boilermaker International Secretary-Treasurer William Creeden noted that the record settlement came too late for more than 12 union workers who are now deceased. “Their heirs will receive the shares that would have gone to those members,” he said. “But the fact that it took nearly 20 years to settle the oldest of these cases points to the need for labor law reform. Passing the Employee Free Choice Act would be a great start.”