Payne & Keller of Louisiana

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Payne & Keller of Louisiana and Edward P. Smiley III. Case 15-CA-6587 December 11, 1978 I. In paragraph l(c) substitute the word "other" for the words "like or related." 2. Substitute the attached notice for that of the Administrative Law Judge. DECISION AND ORDER BY MEMBERS JENKINS. MURPHY. AND TRUESDALE APPENDIX On August 11, 1978, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order as modi;ied herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Payne & Keller of Louisiana, Baton Rouge, Louisi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the recommended order, as modified herein: I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. Specifically, Respondent contends that the Ad- ministrative Law Judge erred in crediting the testimony of Monroe Tanner. a former supervisor employed by Respondent, because at the time of the hearing Tanner was business manager of the Welders and Helpers Union, Local I, and therefore was, contrary to the Administrative Law Judge's conclusion, not a disinterested witness in this proceeding. We note that the Administrative Law Judge credited testimony on the basis of Tanner's de- meanor, forthrightness, and objectivity. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). Inasmuch as the credibility finding concerning Tanner was based in part on demeanor. and because a careful examination of the record otherwise supports that finding, we find no basis for reversing any of his credibility findings. 2 Because the discharge of employee Edward P. Smiley III strikes at the heart of the Act, we shall provide that Respondent cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their Sec. 7 rights. rather than "in any like or related manner" as recommended by the Administrative Law Judge. Member Jenkins agrees that the no-solicitation rule in issue here is un- lawful for the reasons expressed by the Administrative l.aw Judge. How- ever, consistent with his dissent in Essex International. Inc., 211 NLRB 749 (1974), Member Jenkins does not adopt the Administrative Law Judge's suggestion that an employer has an absolute right to prohibit union solicita- tion so long as the rule recites that it is applicable to "work time." NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NO1 coercively promulgate, threaten to enforce, or enforce any no-solicitation rule where such rule is applicable only to solicitation for unions but not applicable to any other solici- tations within any of the facilities where our em- ployees are actively at work. WE WIL NOT discharge or otherwise discrimi- nate against any of our employees in regard to their wages or other terms and/or conditions of employment because they become or remain members of the United Welders and Helpers of America, Local No. 1, or any other labor organi- zation of their choosing. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to join or assist a union, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WiL. offer Edward P. Smiley III full and unconditional reinstatement to his former posi- tion or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privi- leges, and WE WILL make him whole for any loss of wages or other employee benefits suffered by him by reason of our unlawful conduct in dis- charging him, plus interest. PAYNE & KELLER OF LOUISIANA DECISION STATEMENT OF THF CASE MORTON D FRIEDMAN. Administrative Law Judge: This case was heard at Baton Rouge, Louisiana, upon a com- plaint issued on September 29, 1977, which complaint is based upon a charge filed on August 25, 1977, by Edward P. Smiley III, herein called Smiley or the Charging Party. The complaint alleges, in substarce, that Payne & Keller of Louisiana, herein called the Respondent, through various 694 PAYNE & KELLER OF LOUISIANA supervisors, unlawfully interrogated employee Smiley re- garding his union activities, threatened to discharge Smiley for the same, orally promulgated an overly broad no-solici- tation rule, and finally terminated Smiley's employment because of his union activities, thereby violating Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. In its duly filed answer, the Respondent admits the juris- dictional allegations of the complaint, but denies the com- mission of any unfair labor practices. Additionally, the Re- spondent contends that it did not promulgate any specific rule against solicitation but did discharge Smiley because he solicited on behalf of a newly formed labor organiza- tion, United Welders and Helpers of America, Local No. 1,. herein called the Welders, at times when Smiley was sup- posed to be working, thereby disrupting his own and others' work. Therefore, the Respondent alleges the dis- charge was for lawful cause and was not discriminatory. At the hearing herein, all parties were represented and given full opportunity to be heard, to present evidence, and to make oral argument. Oral argument was waived. There- after, counsel for the General Counsel and the Respondent filed briefs. Upon the entire record herein, including the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Louisiana corporation with its princi- pal office and place of business in Baton Rouge, Louisiana, is engaged in building construction and plant maintenance. During the 12-month period preceding the issuance of the complaint herein, a representative period, the Respondent purchased and received materials and supplies of a value in excess of $50,000, which were shipped to the Respondent directly from points located in States other than the State of Louisiana. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent denies that the Welders is a labor orga- nization within the meaning of Section 2(5) of the Act. While the record reveals that at the time of the hearing herein the Welders did not have any current collective- bargaining contracts with any employer, it did have a for- mal constitution and bylaws and enjoyed a membership of approximately 150 individuals engaged in industrial and construction welding. It is uncontroverted that the said Union exists for the purpose for which it was organized some time toward the end of July 1977; namely, bettering the working conditions and bargaining collectively on be- half of its members. Moreover, by reason of its constitution and bylaws, all the Welders members have a vote in mak- ing decisions involving the membership. Moreover. the Welders is completely organized, having a full complement of officers and a business agent. Its appointed organizer. Edward P. Smiley III, is the alleged discriminatee involved in the instant proceeding. Accordingly, by reason of the foregoing. I find that the Welders is a labor organization within the meaning of Sec- tion 2(5) of the Act.' III THE ALLEGED UNFAIR LABOR PRACTI(I S A. The Facts At the times pertinent to this case the Respondent was engaged on a construction jobsite for the Big Three Com- pany at Plaquemine, Louisiana. Smiley was referred to the Respondent by Local 102 of the Pipefitters Union, herein called Pipefitters, which labor organization has a collec- tive-bargaining agrement with the Respondent. Smiley had worked for the Respondent on various other jobs at various sites over a period of several years before the Re- spondent hired him to work on the Big Three job early in June 1977. Smile)' is a pipefitter-welder and was employed as such on the Big Three job. Soon after his June 1977 employment, probably by reason of the facts that he had had experience at the same type of work and had worked for the Respondent on previous occasions, Smiley was made a foreman. He served in this capacity for a short period of time but was "busted" down to working with his tools because, according to the Respondent, Smiley was unable to keep his crew busy'. At approximately this same time, Smiley became active in organizing the Welders, as related above. The Union was formed, as above related, to improve the working con- ditions and wages of the welders in the pipefitting industry. As a result of Smiley's efforts, the Welders was fully formed late in July 1977. Smiley, as an organizer for the said Union, began to proselytize among the Respondent's welders who were members of the Pipefitters to solicit them to shift their membership to the newly formed Weld- ers.2 It is uncontroverted in the record that the Respondent, at least at the Big Three jobsite at the times material here- to, had no published no-solicitation rule. In fact. according to Monroe Tanner, a former assistant supervisor at the Big Three jobsite, the Respondent not only did not have a no- solicitation rule but, in fact, tolerated soliciting on non- union matters such as the selling of chances for a little league baseball team.3 Also, individual employees were selling sundry items on the job; one individual, for exam- ple, was selling gourmet seasoning kits.4 Some time toward the end of July, Smiley was called to the office of Ward Davis, piping supervisor for the Respon- iAll of the foregoing. upon which this conclusion is based, is from the uncontrtoverted testimonny of Edward P Smiley III. Additionally, the con- struction and hbylaws of the organization, which were received in evidence, are not attacked as to their validity. ' All of the foregoing is uncontroverted It was Tanner's brother, also a supervisor of the Respondent. who *was soliciting at the same time. or at approximately the same time. that Smiley was soli llng ,,mong the Respondent's emrplvees at the Big 1 hree jobsite for membership in the newly formed Welders From credited testimony of Smiley 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent on the Big Three job, upon the complaint of a Big Three supervisor named Gene Parsley, for interfering with the work on Big Three's employees. In warning Smiley not to repeat this conduct again, Davis told Smiley that Davis did not wan, Smiley "discussing a union on the job or he would be fired." 5 On August 3, 1977, Smiley was discharged by Murphy Blanchard, a piping supervisor under whom Tanner was an assistant supervisor. Tanner had been informed by one of Tanner's general foremen, Arthur Lavergne, that Blanch- ard had sent word for Tanner to sign a termination slip terminating Smiley. However, Tanner refused to do so be- cause he was convinced that the Respondent was discharg- ing Smiley because of the latter's union involvement and did not desire to become involved in discharging Smiley for that reason. However, Tanner admitted in testifying that he himself had received complaints about Smiley's an- noying Parsley of Big Three. Smiley had accosted Parsley and asked if the latter was responsible for Smiley's being "busted" from foreman. Tanner also admitted he had complaints about Smiley being out of his work area during working time. Additionally, it is established in the reocrd independently of Tanner's testimony that Smiley was at times out of his work area, although perhaps on some of these occasions he was sent out of his work area by his foreman in order to go to the warehouse or other parts of the jobsite to obtain tools or parts. Nevertheless, it is equal- ly true that other pipefitters on the jobsite were warned about being out of their work area without permission dur- ing working time. However, no one else was discharged.6 It should be noted, however, that immediately after Blanchard discharged Smiley upon Tanner's refusal to sign the termination slip, Tanner spoke to foreman Arthur Lav- ergne, who had been present when Blanchard discharged Smiley. Lavergne told Tanner that Smiley was discharged. Lavergne told Tanner that Smiley was discharged because of his union involvement.7 The foregoing summarizes the facts upon which the General Counsel would base a finding that the Respondent violated Section 8(a)(1) and (3) of the Act. From credited testimony of Tanner and Smiley I found Tanner to be a most forthright witness not only from his demeanor on the witness stand but also because. although called by the General Counsel, he did not attempt to obfuscate when testifying with regard to matters which could be injurious to the General Counsel's case. Additionally, Tanner no longer works for the Respondent and the record does not show that he left the Respondent's employ involuntarily. Accordingly, I find that Tanner was the most obhjec- tive of all of the witnesses who testified at the proceeding herein. All of the other witnesses were working for the Respondent at the date of the hearing herein except witness Smiley who, of course, was the Charging Party. Al- though Smiley testified that he was told not to solicit for the Union on the jobsie, all of the Respondent's witnesses who were present during the warn- ing given to Smiley by Davis more or less conformed to the version of the warning related by Tanner. For these reasons, Tanner's version is quoted and accepted as the accurate version of the warning meeting. 6 From the credited testimony of Tanner. 7Although Lavergne denied'he told Tanner that Smiley had been dis- charged by Blanchard because of Smiley's union involvement, I credit tan- ner over Lavergne. At the time of the hearing herein. Lavergne was still employed by the Respondent on a jobsite where Respondent was perform- ing work for another company. B. The Respondent's Defense The Respondent contends that the facts of this case do not present, as the General Counsel maintains, a no-solici- tation rule situation, but rather that Smiley was discharged after having been warned to stay in his work area and for refusing to obey this instruction by his supervisors. Ac- cordingly, the Respondent would conclude that Smiley was discharged for cause and not for engaging in protected ac- tivity within the meaning of Section 7 of the Act, and that he was not discriminated against because of any union ac- tivity. In support of its foregoing contention, the Respondent relies on the almost uniform testimony of supervisors that when Smiley was warned by piping supervisor Davis, fol- lowing the complaint of Big Three's supervisor Parsley, the basic element of that warning was that Smiley should re- main in his work a,-ea and what he did on his own time with regard to any matter was none of the Respondent's business. These witnesses also testified uniformly that the word "jobsite," which Smiley used in testifying, was never used by Davis. Thus, the testimony of these individuals, standing alone, would result in a finding that the thrust of what Davis told Smiley was that Smiley was to remain at his work station and work during working time. Accord- ingly, this case would not present, if Respondent's conten- tion is correct, a no-solicitation rule issue. In further support of its foregoing contention, Respon- dent presented the testimony of two rank-and-file employ- ees who allegedly were interrupted in their work by Smiley, who attempted to persuade them to join the newly formed Welders. The first of these individuals, Herman Mabile, still an employee of the Respondent, testified that while he was working at the cold box area, no. 3, on the Big Three premises, Smiley approached him and his helper and talked about the Union. On another occasion, while wait- ing in line for tools at the warehouse, Smiley also spoke to a group of employees about the Welders. Included in that group was Mabile. As noted above, however, Smiley de- nied that he ever had seen Mabile before the day of the hearing or had ever spoken to him. In fact, Smiley testified that he never did know Mabile at all. However, Smiley did admit he spoke to employees on the waiting line. The other rank-and-file employee, Russell Carline. is still employed by the Respondent on another jobsite. He stated that while Smiley was still a foreman, Smiley began to talk about the Welders and interrupted the work of his crew. C('arline admitted, however, that Smiley had him transfer- red to another crew. Accordinly, although I do not credit Smiley's denial that he ever talked to or knew Mabile, I conclude that neither Mabile nor Carline can be complete- ly credited, either, because they are still working for the Respondent as rank-and-file employees and it can be con- cluded they are concerned about their employment. I therefore conclude that Smiley apparently did talk about the Welders to Mabile and others on the warehouse wait- ing line because Smiley himself stated that he did so upon that occasion. With regard to Carline's testimony, I con- clude that not only was Carline still employed by the Re- spondent, but also that Carline could have nursed a griev- ance against Smiley for his having had Carline transferred 696 PAYNE & KELLER OF LOUISIANA to another crew when Smiley was foreman. I conclude that Smiley probably talked about the Welders to his crew but did not necessarily disrupt their work while doing so. C. Concluding Findings As noted above, Smiley himself admitted in testifying that there was at least one time that he did solicit for the Welders on working time. It is also true, as contended by General Counsel and admitted by the Respondent, that the right of employees to engage in oral solicitations on plant premises must be afforded, subject only to the restriction that it be on nonworking time. It is equally true, and the Board has held, that the maintenance of rules prohibiting solicitation "on company property" or "on a jobsite" are overly broad and constitute interference with organiza- tional rights of employees.9 Heretofore, I have presented the conflict between the testimony of Smiley to the effect that the Respondent's piping supervisor, Ward Davis, told him that he could not solicit on the jobsite and the testimony of Davis to the effect that he did not say Smiley could not talk about the Welders on the jobsite but did prohibit his doing so during "working hours." I find and conclude that insofar as this conflict is concerned, the weight of credible evidence es- tablishes that the Respondent prohibited Smiley from dis- cussing the Welders, or any other union matter, during working hours. Moreover, as noted, Smiley himself did ad- mit that once, at least, he did discuss the Welders during working hours. However, even assuming, as found, that Davis' restriction against Smiley's union discussion or so- licitation was confined to working time only, nevertheless I find and conclude that despite the Respondent's conten- tion to the contrary, Smiley was discharged for discussing the Welders on the jobsite. I reach this conclusion after considering a number of the factors which appear in the record; i.e., other individuals were warned but were not discharged; solicitation for other nonunion matters was permitted by the Respondent, or at least condoned or forgiven; and Smiley had worked for the Respondent on numerous occasions and at numerous job- sites in the past and had been considered a good worker, at least good enough to be not only hired by the Respondent for the Big Three job but also to be promoted to foreman. Although it is not alleged as a violation, and there is no testimony regarding it, I cannot help but note that Smiley was demoted from foreman to a rank-and-file welder only after he began discussing and assisting in the formation of the Welders, a matter of which the Respondent's supervis- ors knew. Lastly, although the Respondent's witnesses talked of Smiley's disrupting the work on the job, and al- though the Respondent may have received complaints about Smiley's talking about the Welders on the job, and although the Respondent named individuals who com- plained, nevertheless, it gave no details as to any particular disruption which would be tantamount to a work stoppage. Finally, there is the finding, cited above, that immediately after Smiley's discharge, Foreman Lavergne, who was pres- Stoddard(huirk .Aanufacturing Co. 138 NL.RB 615, 21 11963) 9 Allis ( halmrs (sorpruatisn, 224 NLRB 1199 (1976). ent when Blanchard discharged Smiley. that Smiley was discharged for union activity. In sum, then, I conclude that, although the Respondent might have been somewhat disturbed by the fact that Smi- ley possibly talked about the Welders during worktime, the Respondent's supervisors were more upset over the fact that Smiley talked about a new union during worktime, rather than about the Pipefitters, with whom Respondent had a contractual relationship. This, of course, means that the Respondent discharged Smiley for engaging in union activity. While it goes without saying that under ordinary circumstances an employer has the right to expect from his employees a full measure of work during worktime, and that any other activity engaged in during worktime would constitute unprotected activity even if it were for the pur- pose of soliciting for union matters, under the circumstanc- es here presented, Smiley was the only employee upon whom the Employer placed a limitation on soliciting dur- ing worktime. The Respondent did not proscribe any other nonworking activity during worktime. Accordingly, upon all of the foregoing, I find and conclude that the Respon- dent discharged Smiley discriminatorily in violation of Sec- tion 8(a)(3) and (1) of the Act. I also find and conclude that although Respondent did have the authority and absolute right to prohibit union so- licitation on worktime, in the case at bar the Respondent not only promulgated the prohibition solely against Smiley but also enforced it solely against him. Accordingly, I find and conclude that in this instance the promulgation of the no-solicitation rule was violative of Smiley's and other em- ployees' Section 7 rights and therefore was violative, addi- tionally, of Section 8(a)( I) of the Act. I further find that the threat to discharge Smiley under these circumstances was likewise violative of that section. IV THE EFFEC(TS OF NNFAIR I BOR PRA(CII(ES IPON (COMMFRCF The activities of the Respondent, set forth in section 111, above, occurring in connection with the operations of Re- spondent herein described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent herein has violated the Act. I will recommend that Respondent cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent engaged in activities which constitute interference, restraint, and coercion as de- fined by Section 8(a)(1) of the Act, I recommend that the Respondent be ordered to cease and desist therefrom. Having found that the Respondent violated Section 8(aX3) of the Act by discriminatorily discharging Edward P. Smiley III, I will order that Smiley be reinstated to his former or equivalent position and that the Respondent make him whole by paying to him a sum of money equal to that which he would have earned but for the discrimination 697 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against him. Backpay shall be computed with interest thereon in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpora- tion, 231 NLRB 651 (1977).'1 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW I. 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. By promulgating the no-solicitation clause only with regard to employee Smiley and only as to union activities, while permitting other types of solicitation within its em- ployee complement during working hours, the Respondent has engaged in and is engaging in unfair labor practices prohibited by Section 8(a)(1) of the Act. 4. By warning and then discharging Edward P. Smiley III because the latter engaged in union activity, the Re- spondent has engaged in unfair labor practices prohibited by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record, pursuant to Sec- tion 10(c) of the Act, I hereby issue the following: ORDER l The Respondent, Payne & Keller of Louisiana, Baton Rouge, Louisiana, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively promulgating, threatening to enforce, and enforcing a no-solicitation rule and thereby interfering with employees' Section 7 rights. (b) Discouraging, or seeking to discourage, membership See, generally, Ist. Plumbing and Heating ( o. 138 NL.RB 716 (1962). 1In the event no exceptions are filed as pros died h) Sec. 102.46 of the Rules and Regulations of the Nationaill I.ahor Relations Board. the findings. conclusions, and recommended Order herein shall. is prov ided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and hecome its findings. conclusions, and Order, and all objectionns thereto shall be deemed wained for all purposes. in United Welders and Helpers of America, Local No. I, or any other labor organization, by terminating or discharg- ing any employee because of such employee's membership in, assistance to, and/or activities on behalf of that Union or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right, guaranteed by Section 7 of the Act, to self-organiza- tion, to join or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer Edward P. Smiley 111 immediate, full, and un- conditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of wages suffered by reason of the Respondent's un- lawful conduct, as provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the authorized agents of the Board, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, necessary to ana- lyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. Additional postings shall also be made at all installations in which Respondent is engaged in the con- struction industry. (d) Notify the Regional Director for Region 15, in writ. ing., within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I: In the event that 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." 698