Daniel International Corp.

DANIEL CONSTRUCTION CO. 213 Daniel Construction Company, Inc., a Division of Dan- iel International Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No. 30. Case 11-CA-4494 Upon the entire record in the case, including my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 3, 1971, Trial Examiner Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing 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 Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Daniel Con- struction Company, Inc., a division of Daniel Interna- tional Corporation, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's recommended Order. ' The Respondent has excepted to certain credibility findings made by the Tnal Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN J WELLES, Trial Examiner: This case was heard at Forest City, North Carolina, on August 26 and 27, 1971, based on a charge filed February 22, 1971, amended on Feb- ruary 23, 1971, and again on June 15, 1971, and a complaint issued June 23, 1971. The complaint alleges that the Re- spondent engaged in various acts of interference, restraint, and coercion in violation of Section 8(a)(1), and that it dis- charged employee Arvin Hicks because of his union activity, in violation of Section 8(a)l and (3). Respondent filed an answer denying that it violated the Act. Counsel for the General Counsel and Respondent filed briefs. 195 NLRB No. 45 Respondent, a South Carolina corporation engaged in the construction industry, has during the 12 months preceding the issuance of the complaint herein received goods and materials valued in excess of $50,000 from points outside the State of South Carolina, and during the same period has performed services valued in excess of $50,000 outside the State of South Carolina. On these admitted facts, I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. The 8(a)(1) The Union started organizing Respondent's boilermaker employees at the Cliffside, North Carolina, project, about December 20, 1970. A number of meetings were held between February 1, 1971, and March 3, 1971, only one, at Ron and Eddy's Restaurant in Forest City, North Carolina, being sig- nificant here.' This meeting at Ron and Eddy's Restaurant began about 8 p.m. in a room upstairs from the main dining area of the restaurant. There was an outside access to stairs leading to the room reserved for the union meeting, so that there was no necessity to go through the restaurant.' From about 7:30 to 8 two employees, Arvin Hicks and J. E. Barnes, stationed themselves at this entrance to direct employees to the meeting place. During the approximately half hour period from 7:30 to 8 that Hicks and Barnes were on the sidewalk in front of the entrance, Respondent's general foreman, Hoy Cuthertson, came down the main street in front of Ron and Eddy's heading east, circled around on the main street and returned, and then parked his car about in front of where Barnes and Hicks were standing. Cuthertson then got out of his car, said a few words to Barnes and Hicks, and apparently to several other employees who were coming to the meeting about that time, and went on into the main restaurant of Ron and Eddy's. Cuthertson did not deny his movements as seen by Barnes and Hicks, or that he saw those two employees and two others on the street by the entrance to Ron and Eddy's up- stairs room, and he "assumes" that there was a union meeting going on there. Cuthertson testified, however, that he stopped at Ron and Eddy's that day because he knew his wife was out of town and he had gone to a friend's house earlier, stayed a little later than usual, and stopped at Ron and Eddy's to drink a cup of coffee before he returned to his house. Cuthert- son also stated that when his wife is away he normally eats at either Ron and Eddy's or another restaurant named Gar- dos. He said, however, that he did not eat at Ron and Eddy's in the 25 or so minutes he was there the evening of February 17, but merely drank a cup of coffee and talked to several friends. ' On February 17, 1971, the Union filed a petition for an election with the Board The election was held April 29, Pursuant to the Board 's direction, and was lost by the Union No issue connected therewith is presented here ' As the hearing was held in Forest City , within a block of Ron and Eddy 's the Trial Examiner was able to observe the location 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I found Cuthertson's testimony in this respect singularly unconvincing. The jobsite in Cliffside is only approximately 10 miles from Forest City, and work ended at 5:30 p.m. Yet Cuthertson did not arrive at Ron and Eddy's until shortly after 7:30, and was there just during the time when people were coming to the union meeting. Furthermore, Cuthertson was approaching the Ron and Eddy's situs going East, al- though had he been coming directly from Cliffside and on his way home he would have been approaching it from the West. Finally, he testified that he remembered the date particularly because his wife was out of town that day, and that he usually eats his dinner at Ron and Eddy's when his wife is out of town. Yet on that day all he did at Ron and Eddy's was have a cup of coffee. In these circumstances, I do not accept Cu- thertson's explanation that he stayed a relatively long time at the house of an unidentified friend, and that it was merely coincidence that he came to the scene of the meeting when he did. I find, accordingly, that Respondent, through the acts of Cuthertson on this occasion, engaged in surveillance, and thereby violated Section 8(a)(1) of the Act. Barnes testified that somewhere about the middle of Febru- ary,' Superintendent Burns called him into his office and said that there were some blue cards being passed out on the job and that he "wanted it stopped right away and was going to put a stop to it." The Union's authorization cards which were being passed out about this time were blue, and I have no difficulty in concluding that Burns was talking about union cards. Burns admitted calling Barnes into his office to discuss the passing out of cards. His version of their conversation differs only in respect to whether his admonition was only against passing out cards in working areas, or anywhere on the project. I credit Barnes to the effect that Burns did not in any way limit the admonition against distributing union cards to working time and working areas of the jobsite. A few days later Burns said to Barnes "If I knowed who was run- ning this, I would run them off... Daniel wasn't going to be organized." Burns denied ever threatening to discharge any- one for union activity. He did state that he would have dis- charged anyone for passing out cards in working areas on work time. I believe that he did make the statement to Barnes as Barnes testified. Burns might well have had in mind at that point employees who were passing out cards in work areas on working time, but he certainly did not make this explicit in anyway. I find that by this threat Respondent violated Section 8(a)(1) of the Act. On February 19, in the course of a safety meeting at the jobsite, Cuthertson told the employees that if they were "go- ing to work union," they were going "to work union ways" that there would be no "union cards passed out up there" (meaning at the top of the jobsite where work was being done), that the employees would all have "our tools in our hands ready to work at 7 a.m.," and that they would work up "until the whistle blows." The testimony of both Barnes and Hicks establishes that the employees had been leaving the top of the project some 5 to 10 minutes before the whistle blew because of the congestion and the time involved in get- ting from there to the ground, and that they had not been reaching their work station at 7 a.m. because of the difficulty in getting the elevator to travel up the some 200 feet to the top. Although, of course, an employer has a perfect right to insist on his employees working a full day, he cannot, without violating the National Labor Relations Act, change from a relatively lax policy in this respect to a firm one solely because of the advent of a union. Cuthertson's own testimony estab- lishes that he "laid down the law" to the employees with ' Barnes placed the incident as 3 to 4 weeks after he came on the job He came on the job January 25 respect to starting and quitting times on February 19, only 2 days after the Union filed its petition for an election, and also 2 days after Cuthertson had seen what he himself testified he assumed was a union meeting going on at Ron and Eddy's Restaurant. Although Cuthertson impliedly denied that he had keyed the admonition at this February 19 meeting to the advent of the Union, I credit Barnes that he did so. In any event the timing of these strictures, coupled with the fact, which was not denied, that the employees had been leaving early and reaching their work stations late for some period of time satisfy me that Respondent was motivated, in attempt- ing to enforce stricter starting and quitting times, by the fact that the Union was on the scene. Respondent accordingly violated Section 8(a)(1) of the Act. Respondent has had a rule posted at the jobsite since it began covering solicitation and distribution by employees. The posted rule reads as follows: Solicitation by employees on this project during working time prohibited. Distribution of literature by employees on this project in non-working areas during working time is prohibited. Distribution of literature by employees on this project in working areas during non-working time is prohibited. Exceptions to these rules shall be made only for Com- munity Chests and United Fund collections. A notice shall be posted on the applicable bulletin boards stating that such collections are being made. Respondent concedes that it applied the rule to the distri- bution in working areas of all forms of literature, including the passing out of union cards. Both Burns and Cuthertson testified to this effect; Burns told Barnes that there would be no passing out of union cards on top of the powerhouse, and Cuthertson told the employees that it was against company policy to pass out any type of literature on top of the con- struction job. The General Counsel specifically stated that he is not contending that Respondent's rule is unlawful on its face, but only that it is unlawful as applied.` The Board has specifically held that "the solicitation of signatures on union cards does not constitute `distribution of literature.' " The Rose Company, 154 NLRB 228, 229. See also Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 620-621. As there is no question but that Respondent applied its rule to prohibit the solicitation of union cards even on nonworking time in working areas, I find that Respondent applied its rule unlawfully, and thereby violated Section 8(a)(1) of the Act. In view of the position taken by the Gen- eral Counsel that it is not attacking the rule as unlawful on its face I make no finding in that respect. B. The 8(a)(3) Arvin Hicks was hired by Respondent on January 25, 1971, as a welder, after having passed a series of welding tests given by Respondent, which took about 40 hours. During his employment he passed out about 50 union cards and received signed cards back from employees. His solicitation of cards took place at the jobsite; he did not visit employees at their home. He attended a number of union meetings, including the ' The original complaint did not specifically allege a violation in this respect, although it did contain an allegation that Respondent violated Section 8(a)(1) by ordering employees not to pass out or sign union authori- zation cards I permitted an amendment to the complaint at the hearing alleging the application of this no-solicitation-distribution rule as unlawful, over Respondent's objection, and I hereby reaffirm that ruling, particularly in light of the fact that Respondent did not seek any further time to respond, or claim surprise Indeed the testimony which led to the amendment of the complaint was that of Respondent's own witnesses, Burns and Cuthertson DANIEL CONSTRUCTION CO 215 one at Ron and Eddy's Restaurant in Forest City, where he was observed by General Foreman Cuthertson. Earlier that day, February 17, Hicks went to his immediate foreman, Phillip Keel, and asked him if there was any truth to the rumor that he, Hicks, was going to be fired for his union activity. Keel told him that he was afraid so, that Hoy Cuthertson had told him so. Keel, now working at another company jobsite in Tennessee, denied this conversation or that he knew anything about Hicks' union activities. He also denied having spoken to anyone about the Union. Based on his demeanor, and also on the fact that the Union had an authorization card signed by Keel, so that he obviously did talk to somebody about the Union, contrary to his testimony, I discredit Keel and find that Hicks, who impressed me very favorably as a witness, did have that conversation with Keel as he testified. The next morning, Hicks was called away from his job and told to go to the office. According to Hicks, Burns said to him when he came into the office"What went wrong?" Hicks responded "What do you mean?" And Burns said "You have porosity in your heli-arc welds." Hicks said "I am no helic-arc welder." Burns said "Like hell you ain't." Hicks then told Burns to "Check his damn records and he would find out that I wasn't a heli-arc welder." After Burns talked about how good Daniel was to its employees, a technician who was in the office said, "Well, there is one of those welds that is bad all the way through." Hicks asked the technician whether he was sure it was his weld, and the technician responded, "Well, the welding foreman told me that you had been working over there ." Burns then told someone who came into the office, apparently an assistant, according to Hicks, to call up the time office and have Hicks' time written up. The assistant asked Burns what to put on Hicks' termina- tion slip, and Burns responded, "Work unsatisfactory." When Hicks left the office, he met Foreman Phillip Keel and told Keel he had been fired. Keel said "What for?" and Hicks said "Well, for work unsatisfactory." Keel then said "It's for that damn Union...... Burns denied that he told Hicks he was being discharged for heli-arc welding. Burns also testified that Hicks said to him at the time of his dis- charge that "Had he known the welds were going to be X- rayed he could have done better." Burns was not asked about, and did not testify with respect to, the termination interview with Hicks other than in the two respects I have ,lust men- tioned. I credit Hicks' version of the termination interview. Burns testified that lie had been told that Hicks' welding "had porosity, and lack of fusion, and gas pockets and so forth in it." He also testified that although porosity in welds occurs from time to time, he had not fired anyone else in the last 6 or 7 months for too much porosity. At another point Burns testified that the Company does let welders go for unsatisfac- tory work. He added that about 12 to 15 welders had been terminated during 1971 on the Cliffside job for unsatisfactory welding. According to Burns, the company policy with re- spect to termination of welders is not to let them know they are terminated but to bring them down off the job. The pur- pose of that policy; Burns said, was "Because a lot of them will take a torch and burn holes in tubes and knock a hole in a tube with a machine; it will take you 2 weeks to repair." Burns testified that he did not know that Hicks was actively passing out union authorization cards on the jobsite. He stated that Hicks' termination had nothing to do with any alleged union activities. After some confusing testimony in which Burns seemed to say that four welds had to come out on February 18 that had been made by Hicks, Burns did state that they could only identify one of those bad welds as having been Hicks'. In fact, there were only three bad welds turned up by X-ray techni- cian Walkup on the night of February 17. Furthermore, the testimony shows that four welders, two heli-arc welders and two stick welders, worked on each of the tubes inspected by Walkup that evening. Although Walkup testified that the defect in the particular weld Hicks is alleged to have improp- erly welded was most likely done by one of the two stick welders, he did state in cross-examination that he could not be a hundred percent sure of that. It is also plain to me from the testimony of both Burns and Walkup that Burns could not have been certain at that time that Hicks was one of the two stick welders responsible for the improper portion of the welding, even assuming that it was fairly clear, as perhaps it was, that the stick welders rather than the heli-arc welders were responsible. Burns' whole testimony with respect to this matter suggested that he never was certain that Hicks had done the particular improper weld. I have already credited Hicks to the effect that when Burns confronted him he talked about a bad heli-arc weld. Burns testified that he received his information from Leon Cantrell, Respondent's welding tech- nicians Other than this, Burns made no investigation of the matter, and he decided to fire Hicks immediately, without giving him an opportunity to explain or defend the sudden accusation of unsatisfactory work. Concluding Findings Hicks, hired after rigorous 40-hour testing in welding, was fired less than 4 weeks later, allegedly for a single mistake. There is no suggestion that he had made any previous errors; he had never been warned or reprimanded Burns, who made the decision to discharge Hicks, did not even consult with Hicks' immediate foreman, Keel. He did not, as noted, even ask Hicks for an explanation, even though he (Burns) was relying not on his own investigation or knowledge, but in reports to him that themselves did not pinpoint the error as unmistakably that of Hicks. Although Burns testified to hav- ing fired 12 to 15 welders for "unsatisfactory work," Re- spondent offered no evidence to show that in any of these instances "unsatisfactory work" consisted of a single mistake. Indeed, Burns stated that he had not fired any other welder for too much porosity even though that occurs from time to time. As noted above, Burns testified that it was normal procedure to fire welders without any prior notice in order to guard against sabotage by a welder working under notice of discharge. The suggestion that people who receive say 2 weeks' notice or even notice that they are to be discharged at the end of the workday will immediately resort to sabotage against Employer's property somewhat astounds me, but I accept Burns' testimony in this respect. However, I do not see this procedure as going to the question of whether they fire people for a single mistake with no prior warning. Certainly a warning that your work must improve would not, even under the Company's view of what people under notice of discharge might do, impel any normal and rational person to sabotage. In short, the entire circumstances surrounding the discharge of Hicks, even apart from the General Counsel's affirmative case, suggests that the single mistake made by Hicks on February 17 was not the reason for his abrupt discharge on February 18. The real reason for the discharge, in my opinion, lies in the fact that Hicks engaged in wide- spread solicitation of signatures on union cards. Although employed by the Company for a little more than 3 weeks during that period he had distributed approximately 50 cards to employees on the jobsite, and had received about 20 signed cards back from these employees. Although there is no direct evidence that Respondent observed Hicks in his solicitations and passing out of cards, Respondent did indicate in a num- ' Cantrell was not called to testify 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber of ways displeasure at and refusal to abide such solicita- tions. As Respondent knew that cards were being distributed it must have received this information either from some em- ployees telling it so or from the observation of its supervisors on the site. The distribution of 50 cards by Hicks with the entire unit being approximately 140 in this circumstance satisfies me that Respondent knew if not the precise extent at least the nature of Hicks' union activities. Reenforcing this conclusion is the fact that when Cuthertson saw Hicks and Barnes he immediately, on his own testimony , assumed that a union meeting was going on at Ron and Eddy's the night of February 17. Further evidence on Respondent's knowl- edge of Hicks' activities lies in Keel's statements to him Feb- ruary 17 prior to the discharge and again on February 18 in response to Hicks telling him that he had been discharged. As Keel obviously had nothing to do with the determination to discharge Hicks, I do not, even though Keel was a supervisor, regard his statements on either day as an admission. And, of course, I do not rely upon Hicks' testimony that he heard rumors that he was going to be discharged for union activity as in any way establishing the truth of the matter . In sum, taking into consideration Company's attitude toward and enforcement of starting and quitting times, unlawful curtail- ment of solicitation in working areas, the fact that the day before the discharge Hicks was observed by Cuthertson at what Cuthertson assumed was a union meeting, and the two statements of Keel to Hicks, I am convinced that Respondent discharged Hicks not for the single bad weld of February 17, but for his union activity. Respondent thereby violated Sec- tion 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent, by engaging in surveillance, ordering its employees not to pass out or sign union cards, threatening to discharge employees for union activity , announcing more strict work rules, and unlawfully maintaining and applying a no-solicitation rule, engaged in unfair labor practices affect- ing commerce within the meaning of Sections (8)(a)(1) and 2(6) and (7) of the Act. 2. Respondent by discharging Arvin Hicks because of his union activity engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from the unfair labor practices, that he reinstate Hicks with back- pay computed under the formulas of F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and that it post an appropriate notice. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:6 ORDER Respondent, Daniel Construction Company, Inc., a Divi- sion of Daniel International Corporation, its officers, agents, successors, and assigns, shall: In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 1. Cease and desist from: (a) Discouraging membership in International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers , Local No. 30, by discharging or in any other matter discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Engaging in surveillance of the union activities of its employees. (c) Ordering its employees to stop soliciting signatures on or signing union cards. (d) Threatening its employees with discharge for engaging in union activities. (e) Rigidly enforcing its starting and quitting times solely because its employees have engaged in union activities. (f) Maintaining and applying its no-solicitation rule in an unlawful manner. (g) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer Arvin Hicks immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered , in the manner set forth in the section hereof entitled "The Remedy." (b) Notify Arvin Hicks, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examining or copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Cliffside, North Carolina, jobsite copies of the attached notice marked "Appendix."' Copies of said no- tice on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondert to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Re- spondent has taken to comply herewith.' ' In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 11 in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith" DANIEL CONSTRUCTION CO APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Arvin Hicks immediate and full rein- statement to his former job, or if that job no longer exists, to a substantially equivalent position, and pay him for losses he suffered as a result of his discharge. WE WILL NOT discharge any employee for engaging in union activities. WE WILL NOT engage in surveillance of the union ac- tivities of our employees. WE WILL NOT order our employees not to solicit or sign union cards. WE WILL NOT threaten our employees with discharge for engaging in union activity. WE WILL NOT require strict adherence to starting and quitting times solely because our employees are engaging in union activity. WE WILL NOT unlawfully maintain and apply our no- solicitation rule. WE WILL NOT in any like or related manner interfere 217 with, restrain or coerce our employees in the exercise of rights under Section (7) of the Act. DANIEL CONSTRUCTION COMPANY (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211.