J. L. Manta, Inc.

J. L. MANTA, INC. J. L. Manta, Inc. and Lloyd F. Poling. Case 6-CA-5766 July 19, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 25, 1972, Trial Examiner Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed. I In adopting the Trial Examiner's dismissal of the complaint, we note that, with respect to the General Counsel's contention that Poling was the object of a constructive discharge, this record reveals that Respondent by August 6, 1971, had corrected the allegedly unsafe condition. Furthermore, even if Poling was discharged, from the record it is clear that his employment was terminated because he stated on August 6 that he wanted to be discharged and hence his discharge was unrelated to any protected, concerted activity TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: The charge in this case was filed on November 29, 1971,1 and amended on December 28. The complaint was issued on December 30. The hearing was held on February 22, 1972, in Pittsburgh, Pennsylvania. The issue litigated was whether Lloyd F. Poling quit or was discharged on August 6 and, if the latter, whether his termination violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. For the reasons set forth below, I find that Poling quit. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION 289 Respondent, an Illinois corporation, is a painting and roofing contractor in the construction industry . It holds the painting subcontract on a powerplant being constructed near Wheeling, West Virginia . During the year preceding issuance of the complaint, it purchased goods valued in excess of $50,000 which were shipped directly to it in West Virginia from points outside that State . It is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Local No. 91, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICE A. Credibility This case turns, in the first instance, on the legal significance of what happened during the last few moments of Lloyd Poling's employment by Respondent. There is no dispute that there was a misunderstanding growing out of the fact that James Gionis, Poling's foreman, handed him two paychecks on August 6 instead of the one Poling expected. However, what happened in the few moments that followed can only be understood in the light of the altercation between Poling and Gionis the day before as well on that morning. There is no real dispute about the broad outlines of what happened or why it happened. There is, however, a sharp conflict between Poling's testimony and the testimony of Respondent's witnesses about what they said to each other. For instance, Poling testified that, on the morning of August 5, immediately after his run-in with Gionis, he spoke to George Ginnis, Respondent's superintendent on the project and Gionis' superior. Poling's version of what was said is: So I walked away and ran into the superintendent, George Ginnis. I told George what happened and he says I'll talk to Jimmy. I says Jimmy says he don't have no other work. He says that's no excuse. Jimmy has lots of work. He told me to wait in the shanty while he went to talk to Jimmy. Ginnis' version is: , He talked to Jimmy and he stopped me. He say I can't work with Jimmy. I work with you. I say why? He say I can't. I'll quit. So you going to quit I say I can't help it. I say I can't push you. If you going to quit you quit. And again, on cross-examination: He says you son of a bitches. I say what matter? He say I quit. He say I got no place. Jimmy got no place to put me. So he left. He says I'm going to go see the B.A. and get another job. The difference is crucial. The importance of the difference does not lie in the fact Ginnis said Poling used the word "quit." Respondent does not contend that Poling quit at that moment. In any event, even if it did, the fact that Poling used the future tense in this exchange would I Dates, other than the date of the hearing , are all 1971 198 NLRB No. 48 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preclude a finding that he quit on August 5. The importance of the difference lies in the state of Poling's mind which this and other conversations reveal, especially in those last few moments with Gionis on August 6 when Poling did not use the word "quit." In the section entitled "Facts" which follows I have credited James Gionis and George Ginnis over Lloyd Poling wherever these conflicts appear in the record. As to other facts, I have credited Poling only when his testimony is corroborated by that of another witness. In this connection, I have taken the testimony of Robert Long as corroboration of Poling's account of what preceded his run-in with Gionis even though Long was, generally, uncertain on many of the points he was questioned about. The fact that the whole case was triggered by Poling's concern for safety is not disputed in any event. As to when the work which Poling and Long did not do on August 5 was finally performed, an unimportant detail, I have credited Gionis over Long. I have relied on the demeanor of all three in crediting Gionis and Ginnis over Poling. More importantly, howev- er, I have relied on the testimony of Paul Kilgore, the union steward on the project, who was called as a witness by Respondent. Kilgore did not overhear any of the Gionis-Poling or Ginnis-Poling conversations. He does not, therefore, directly corroborate Gioms or Ginnis or refute Poling. He did, however, in two brief sentences, summarize an important aspect of this case ; i.e., Poling's failure to win any real support from his union after August 6 even though he, himself, is president of the local. Kilgore was asked whether Poling had told Kilgore why Poling was leaving the job on the morning of August 6. Kilgore's reply was: He said something about the equipment wasn't right. The ropes wasn't right. The ropes on the cables wans't right. That's why I says let's go down and check them out this morning. We'll pick out three or four men off the crew. Pick out anybody you want. He wouldn't listen to that. When he started walking to the gate I said don't come crying to me later on. And I thought that was all there was to it. [Emphasis supplied.] In other words, Kilgore, a man whose position would make him more rather than less sympathetic to Poling's side of the dispute, thought that Poling was quitting when he walked off the job for the last time. B. Facts Respondent is a union contractor. While performing its subcontract at Mitchell Power Plant, near Wheeling, West Virginia, it has entered into a collective-bargaining agreement with Painters Local 91. Article 4, section 2 of that agreement provides: No journeymen or apprentice will be permitted to work on any ladder or scaffolding which they protest to the contractor as being unsafe. In the event such protest is made and not corrected, the matter may be referred to the Business Agent for a decision as to the equipment's condition . If the Employer is not satisfied with the decision of the Business Agent, he may refer the matter to the Joint Trade Board for a final decision. If the equipment is deemed unsafe, the employee will receive full pay for any loss of time as a result of the working dispute. Lloyd Poling is president of Local 91. He went to work for Respondent at Mitchell Power Plant on April 12. He worked without incident along with some 20-odd other union painters under Foreman James Gioms until August 5. That morning, pursuant to instructions from Superin- tendent George Ginnis, Gionis put all his men to work on outside painting. Robert Long had been working in a high area with another painter who failed to show up that morning. Consequently, Gionis asked Poling if he would work with Long. Poling said he would. Long and Poling were assigned to paint the underside of a breeching some 120 feet above the ground . The breeching connected a powerhouse with a smokestack. Hot gasses passed from powerhouse to smokestack through it. It was, therefore, hot on its outer surface. In painting this area, Long and Poling were required to work from a pick. The pick was a plank 12 inches wide by 24 feet long. It was supported by two cables which stretched the 100-foot distance from powerhouse to smokestack . As the painting progressed, the pick was to be moved . Because the cables from powerhouse to smokestack sagged, they were sup- ported by two tieup lines which passed over the breeching. On the morning of August 5, the tieup lines were rope. They had been in place approximately 4 days. Long and Poling went onto the pick while Gionis watched from the ground to be sure that Poling would be able to do high work. Long and Poling began to paint. Poling had painted only one small area he could reach from one position when Long said he was concerned about the tieup lines. He said they did not look so good . Poling got off the pick, walked out on the cable, and inspected the tieup lines . He concluded the rig was unsafe because they were rope, not cable, and might have been dried out by the heat from the breeching in the time they had been in place. He told Long he was going to go down and talk to Gionis. He descended to the ground while Long remained on the pick. Gionis saw what Poling did although, the pick being so far above the ground, he could not hear what Long and Poling said to each other . Gionis concluded that Poling was afraid to work on the pick. On the ground, Poling talked to Gionis. Poling told Gionis he could not work on the breeching and asked Gionis to put him somewhere else. Gionis tried to explain that he was limited in the area to which he could assign painters that day because of his instructions from Ginnis to finish up the outside work . Gionis asked Poling why he could not work on the breeching . Poling said because the setup was unsafe. He explained about the ropes . Gionis thought Poling was making an excuse to hide his fear. He became angry. He tried to get Poling to admit he was afraid. He said, "Why can't you work? Why does everybody else work? Why does everybody else I send stay with it and they work? Tell me the truth. Why can't you work?" Poling became angry. He said, "To hell with it. If I have to work on that I will quit." He stalked off. Gionis motioned Long to come down from the pick. Because working on the pick is a two-man operation, Gionis assigned Long to other work for the rest of the day. J. L. MANTA, INC. 291 In the meantime, as Poling walked away from Gionis, he encountered Ginnis. He told Ginnis what had happened, cursing at Ginnis in the process. He said that he could not work with Gionis. He protested that there was other work to which Gionis could assign him instead of making him work on the breeching. He said he would quit if he had to work on the breeching. Ginnis said he could not make Poling work on the breeching. He told Poling to quit if that was what he wanted to do. As Poling walked away, he said he was going to see his business agent and get another job. Poling proceeded toward the construction shanty. He next encountered Paul Kilgore, Local 91's steward on the job. Poling tried to explain what had happened to Kilgore. He said, "The hell with this job. I can find a better .job." Kilgore, who was on his way to deliver some paint, told Poling he did not have time at the momemt but would meet him at the shanty as soon as he was free. Poling went to the shanty. He tried to telphone Local 91's business agent but was unsuccessful. A few minutes later, he went home without waiting for Kilgore. The next day, August 6, was a Friday. Respondent pays its employees each Friday for the workweek ending on Tuesday of that week. During the week which ended Tuesday, August 3, Poling worked on another project for Respondent as well as the Mitchell Power Plant job. Respondent had prepared a separate check for each project. Consequently, on the morning of August 6, there were, in the ordinary course of business two paychecks in separate envelopes at the.jobsite for Poling. When Poling arrived at the.jobsite around 7:30 a.m. on August 6, he did not change into his work clothes. Instead, he spent the time until a few minutes before the 8 a.m. starting time talking to the other men about what had happened the day before. He complained to Kilgore that the setup at the breeching was unsafe. Kilgore suggested that he and Poling take three or four other men and inspect the ropes. Poling would not do as Kilgore suggested. Kilgore offered to call Bruce White, Local 91' s business agent. Poling declined the offer. Around 5 minutes before 8, Poling went to the shanty and demanded his paycheck from Gionis. Gionis gave him the two checks which were there for him. Poling leaped to the erroneous conclusion that the second check was for money due him for work performed after Tuesday and indicated that he had been fired for walking off the job the day before. Poling erupted, saying "You fired me" and threatening various actions he was going to take against Gionis and Respondent. Gionis became angry, too. He said "No, I didn't." Poling said, "Yes you did. You gave me the check." Gionis said, "Open it up and look at it." Poling said, "Well, I want to be fired." Gionis said he would see if he could find the money so as to oblige Poling. (An employee who is fired is entitled to receive all wages he has coming to him before he leaves the jobsite. An employee who quits must, under ordinary circumstances, wait until the next regular payday for his wages.) Gionis took Poling to Ginnis. Ginnis made out a check for 10 hours' pay, 8 hours which Poling had worked on Wednesday, August 4, and 2 hours' showup time for Thursday, August 5, when Poling had walked off the job during the first hour. Poling left. He has not worked for Respondent since . Long and another man painted the breeching from the pick on August 6. The tieup ropes were replaced with nylon cable. Poling finally reached White, the business agent, on Monday morning. White told him to file charges against Gionis when Local 91 's executive committee met the next night. Poling did so. The committee held a hearing on August 28 . Gionis was found guilty of unsafe working conditions. Poling was found guilty of walking off the job without first bringing in the business agent to handle the dispute. White worked out a settlement with Respondent under which Gionis agreed to put Poling back to work as soon as he needed another man . The record does not reveal whether Respondent has, in fact , added any painters at the Mitchell Power Plant since the agreement was reached. Poling has made no effort to contact Respondent about returning to work under the terms of this agreement. The dispute never went to the joint trade board composed of union and management members which the collective- bargaining agreement between Respondent and Local 91 provides as the machinery for settling disputes. Poling also filed intraunion charges against Kilgore for the manner in which Kilgore carried out his stewardship. Local 91 exonerated Kilgore. C. Analysis and Conclusions The General Counsel's theory is that Respondent discharged Lloyd Poling on August 6 because Poling had engaged in the protected activity of protesting the safety of working conditions in concert-with- Robert Long or, in the alternative, because he sought to enforce article 4, section 2 of Respondent's contract with Local 91. A discharge for either motive would be a violation of the Act without question. However, whether the violation is viewed in terms of Section 8(a)(1) or Section 8(a)(3), there must first be either a coercion of Poling or a discrimination against him by Respondent before Respondent's motive comes into question. Put more succinctly, Poling must have been discharged on the morning of August 6 for a violation to have occurred . In my opinion, this record , considered as a whole, will not support such a finding. The only two elements in its favor are the fact that Poling did not use the magic word "quit" and the fact that he was accorded the treatment due a discharged employee when he was paid off on the spot . Neither has the significance it might have had in a different context . Both are outweighed by the fact that all of Poling's actions and words, both on August 5 and on August 6, point toward a resolve to leave Respondent's employ in favor of seeking a more congenial job and the fact that Local 91's handling of his case indicates its conclusion that he quit rather than was discharged. I am convinced that Poling could have gone to work on the morning of August 6 if he had chosen to and may have if he had not lost his temper with James Gionis to the point where he told Gionis that he wanted to be fired. I find, therefore, that Poling's employment with Respondent terminated as a result of Poling's own decision and action, not Respondent's. In a word, he quit. Pottsville Community Hotel Co., Inc., 140 NLRB 556, 563. Even if my finding on this question were to the contrary, I would still not find a violation. If I were to reach the 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question of motive, I would not find that Respondent was motivated by Poling's protected, concerted activity or by his efforts to enforce a collective-bargaining agreement. I would find that it was motivated, in the person of Gionis, solely by anger at Poling's walking off the job on August 5 and his conduct on the morning of August 6, and that this is not a discriminatory motive within the meaning of the Act. Upon the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 2. Local No. 91, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent violated Section 8(a)(3) and (l) of the Act by discharging Lloyd F. Poling on or about August 6, 1971, and thereafter failing and refusing to reinstate him, have not been sustained. 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: 2 1. J. L. Manta, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The complaint is dismissed in its entirety. 2 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings , its findings, conclusions , and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes