Rowen & Blair Electric Co.

ROWEN & BLAIR ELECTRIC COMPANY 639 Rowen & Blair Electric Company and Ray Junior Simmons and Wendell H Lowry and Patrick F Meer Cases 7-CA-9355(1), 7-CA-9355(2), and 7-CA-9355(3) November 30, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 6, 1972, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions and a supporting brief and a brief in opposition to General Counsel's exceptions 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge This case was heard at St Joseph, Michigan, on May 31, 1972, pursuant to charges filed by Ray Junior Simmons, Wendell H Lowry, and Patrick F Meer, individuals,' and a consolidated complaint issued on April 3, 1972 Unless specifically stated otherwise, all dates and events set out herein occurred in 1971 The complaint alleges that the Respondent, in violation of Section 8(a)(1) of the Act, discharged the three Charging Parties on October 4 because they had engaged in concerted activities for their mutual aid or protection by complaining about safety conditions at thejobsite The Employer claims that it discharged the three individuals solely because of their inadequate job perform- ance It also raises certain affirmative defenses based on the Occupational Safety and Health Act of 1970, 29 U S C Secs 651-678, that, in any event, the National Labor Relations Board is not the proper forum for consideration of alleged job-related safety violations Upon the entire record, including my observation of the demeanor of the witnesses, and upon the brief received from the Respondent, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent maintains its principal office and place of business at Kalamazoo, Michigan, where it is engaged as an industrial and commercial electrical contractor The only facility of Respondent involved in this proceeding is at the Cook Nuclear Plant near Bridgman, Michigan In 1971, in the conduct of its operations as an electrical contractor, Respondent furnished services valued in excess of $500,000, of which services in excess of $50,000 were furnished to Indiana-Michigan Electric Corporation, a public utility which has an annual volume of business in excess of $250,000, and has a direct outflow of goods and services in excess of $50,000 directly across state lines Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED Local Union 153, International Brotherhood of Electri- cal Workers, AFL-CIO, South Bend, Indiana, is the collective-bargaining representative for the electricians employed by Respondent at the Cook Nuclear Plant I find that it is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The Company is the electrical contractor in the construc- tion of the Cook Nuclear Plant In late September 1971, when the events described here occurred, the Company employed about 250 electricians, divided into various crews each under the supervision of a foreman Meer, Lowry, and Simmons (sometimes referred to collectively as the Charging Parties) were assigned to Thornberg's 10-man crew In the week before their discharge on Monday, October 4, they had been working in what was known as the auxiliary building, which was then under construction The unroofed top deck of the building was used for storage of a great deal of equipment for use by the various crafts Among this material was a large quantity of steel rods used in reinforcing concrete, as well as 40-foot lengths of angle iron Movement by workers of the various crafts on the top deck was difficult because of the obstruction caused by the material stored there Part or all of two electrical crews, Thornberg's and Zeigler's, were at work in the auxiliary building installing cable trays which were attached to the angle iron used as their supports The angle iron had to be cut to exact measurement, and two saws were set up on the top deck for that purpose Five electricians were assigned to the top 1 Simmons Lowry, and Meer filed their charges on March 7 9 and 15, 1972 respectively 200 NLRB No 95 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deck, moving the angle iron to the saws, cutting it, and then moving it to a hole in the deck through which it was dropped for use on the lower floors During the last week of September, Meer, Lowry, and Simmons of Thornberg's crew, and two men from Zeigler's crew were assigned to the saw operations The incidents on which the General Counsel relies to establish that the Charging Parties were terminated for engaging in concerted protected activities occurred during the workweek, Monday through Friday, September 27 through October 1 On Monday, October 4, they were discharged During this period, none of the Charging Parties complained to the job steward or to the safety committee , either generally about safety conditions, or specifically about the particular incidents which took place The saws had been set up early that week or during the previous week A shed was built around the saws, and at the request of some of the Charging Parties, blowers and wooden shrouds had been installed to aid in ventilation by removing dust and particles caused by the sawing of the angle iron Rain water had accumulated near the saw, so that its operator and those helping in holding and off- bearing the angle iron lengths had to stand in or near a puddle 1 Once the saws were installed, the two Zeigler crewmembers operated them in turn, while the three members of Thornberg's crew, the Charging Parties, moved the iron to and from the shed Because of the puddle in and around the shed, some of the Charging Parties asked Thornberg to have a wooden platform built at the saw 2 Thornberg told them he would ask a carpenter foreman to build them a platform, but when nothing was done in the next few days, Lowry and Meer put down a sheet of plywood at the saw station It was these two who testified that they had complained about the water near the saw because of their fear of being electrocuted while standing in water and operating high voltage equipment It turned out later, however, that there was no rational basis for such a fear on their part, since Meer and Simmons had wired the saws, while Simmons admitted that he had grounded them properly The testimony of other experi- enced journeymen electricians was clear and convincing that a properly grounded piece of electrical equipment poses no threat of electrocution to an operator standing in water Thus, what had been stated or implied to be an imminent threat to life, became merely the inconvenience of standing or moving in a puddle of water 3 2 Tools, equipment, and building material of all sorts was continually being placed or removed from the top deck by an overhead crane Reinforcing rods were strewn all over the deck Movement was thus somewhat difficult, but according to Respondent 's witnesses, a normal hazard of the building trades is to work around matenal belonging to other crafts Large electrical junction boxes, variously estimated as weighing from 50 to 200 pounds were stored on the deck for later installation on the lower floors At one point during the week, Thornberg told the three members of his crew on the top deck to move the boxes from the side of the building where they had been placed to the other side, where there was hole in the concrete through which they could be lowered They had to be slid or camed around and over the other matenal on the deck Lowry testified that Meer asked Thornberg to have a plywood catwalk built the entire length of the deck above all the material piled there, so that they could carry the junction boxes without being impeded 4 According to Thornberg, he told them that a catwalk could not be built on the deck because it would interfere with the ironworkers who had to move the reinforcing bars around in the course of their work He told them to get as many men as they needed to move the boxes and to work carefully The catwalk was not built, and Meer, Lowry and Simmons, with whatever other help they needed, eventually moved the boxes without incident 3 One morning when the Charging Parties reported for work, they found an air hose stretched over the pile of angle iron from which they had to remove individual lengths for sawing According to Meer, one of them asked Thornberg to have the hose moved, although it is apparent from his and Lowry's testimony that neither of them was directly concerned Simmons and Thornberg agree that Thornberg asked Simmons to uncouple the hose and move it so that they could get at the iron Simmons testified that he asked Thornberg if the hose was under pressure, and that Thornberg said he didn 't know Simmons asked him to find out, and Thornberg then left for a few minutes When he returned, he told Simmons to uncouple the hose, at which Simmons again asked if it was under pressure Thornberg couldn't tell him and Simmons said he wouldn't do it Thornberg became angry, and told him to get the iron out of the pile even with the air hose over it 5 They were able to do so without incident According to Thornberg, it was Simmons who had told him that the hose made it difficult to move the iron, and that he then told Simmons to move it or uncouple it Simmons then asked him if it was under pressure He said he would find out, went to the deck below, and found that it was disconnected from any equipment He returned and told Simmons that there was no pressure in the hose and to uncouple it, so it could oe moved off the pile Simmons then said he wouldn't, it wasn't his job Thornberg then told him to move the iron without moving the hose About 20 minutes later, the crane dropped a steel box on the hose, nicking it At that time, it was under pressure, but one of the workmen stepped on the pressure end and was able to keep it under control According to the business manager and the steward for Local 153, both of whom testified for the Respondent, uncoupling an air hose which is under pressure can be done simply and safely with two men, one to crimp it on the pressure side while the other uncouples it Both of them have performed the job while working as journeymen electricians 2 Meer testified that we asked, while Lowry and Simmons each 4 Simmons said that he had asked Thornberg while Meer said without claimed to be the one who had asked specifying that someone asked 3 Since all three were skilled electricians I find that they knew at all This is also substantially the testimony of Meer and Lowry times that it had been properly grounded and was safe to use ROWEN & BLAIR ELECTRIC COMPANY 641 I find Thornberg's version of the air hose incident more believable than that of Simmons It seems unlikely that Thornberg would have gone to find out where the hose came from without also checking whether it was under pressure I credit his testimony that he would not have asked Simmons to uncouple it under pressure, even though it could be done by two men without danger, and that, in fact, it was not then connected to any equipment I therefore find that Simmons refused to obey Thornberg's order, not because Thornberg would not assure him, as Simmons testified, that it was not under pressure, but because Simmons felt it was the responsibility of the craft that had placed the air hose, to uncouple and move it These are the incidents which, in the General Counsel's view, establish that Meer, Lowry, and Simmons were concertedly protesting unsafe or uncomfortable working conditions Neither singly nor collectively do they impress me as particularly meritorious complaints, but rather as protests against the routine discomforts of life as a building trades craftsman But trivial or not, the griping of Meer, Lowry, and Simmons is protected if they acted concerted- ly 6 I find that they did They were all in Thomberg's crew, worked together on the top deck, and were assigned the same general duties Although only Simmons was involved in the order to uncouple the hose, and only he refused to carry it out, each of them joined in the complaints they had in common about working at the saw while standing in water, and in moving the junction boxes Respondent denies that it discharged Meer, Lowry, and Simmons because of their concerted complaints over safety or working conditions, contending that they were terminat- ed for low productivity Thornberg testified that he had gotten complaints during the week from the men on the floor below who were installing cable trays that they were not getting the iron supports promptly from the saw shed He said he investigated, and found only two men working, those in Zeigler's crew, while his men were not in sight He checked and found them on another deck, getting a drink He said he had to look for them on other occasions when they were unaccountably away from their assigned work area Vascil, a general foreman, and Thornberg's superior, testified that Thornberg had told him a few times that he was having trouble finding and keeping the Charging Parties at work Vascil said he told him to do what he could and to work it out some way Voorhees, a superintendent, and Vascil's superior, testified that Vascil had come to him on the Monday or Tuesday before the termination to tell him about the problems Thornberg was having with the Charging Parties, and that he told Vascil to handle it himself On Friday afternoon, after the incident to be described below, Thornberg went to Vascil to tell him that he wanted to discharge Meer, Lowry, and Simmons immediately, but Vascil told him to reconsider it over the weekend, and to talk to him about it on Monday Monday morning, October 4, Thornberg told Vascil he still wanted to discharge them Vascil then went to Voorhees, and together they spoke to the project superintendent, Stillman, who approved the discharges Their final checks were then prepared, and Thornberg discharged them before noon The incident which prompted Thornberg to ask Vascil if he could discharge them immediately occurred on Thurs- day or Friday In the early part of the week, the two members of Zeigler's crew on the top deck had been operating the saw (apparently with no complaint about having to stand in a puddle) while the charging parties were moving the angle iron to and from the shed On Wednesday or Thursday evening, Thornberg told them that it would be their turn the next morning to begin operating the saw They checked in the next morning at 8 a in and asked Thornberg for face shields to attach to their hard hats, and for respirators 7 Thornberg offered them the hard hat and shield used by the man who had been sawing the day before, but they refused it because it was sweaty and grimy Thornberg then went to his crew storage box, but found that he did not have the proper headgear He then told them to go to the toolcnb to get what they needed This was sometime between 8 15 and 8 30 a in Meer said that all three went to the toolcnb together, but I credit Simmons' testimony that he did not go with them The toolcnb was about 150 yards from where they were working It took Meer and Lowry at least an hour to go to the toolcrib, pick up the equipment, and then go to the first-aid station for alcohol swabs which they would need to clean their respirators after a day's work According to Simmons, Thornberg asked him where the other two were, and complained that it was taking them too long 8 When they got back it was time for their coffee break With that over, they began setting up their equipment, and about I 1 a in they were ready to begin sawing There is disagreement about when the first piece of angle iron reached the floor below, but I credit Thornberg that it was well after 11 o'clock That afternoon Thornberg had a talk with the three of them in the saw shed He asked why they were bucking him and dogging the job Meer said he answered him that they were interested in safety, and Thornberg replied that they were more interested in that than in getting the job done, that they were wasting time and would have to put out more work Lowry and Simmons generally confirm Meer's testimony They all claimed that this was their first indication that Thornberg might not be satisfied with their job performance Monday morning Thornberg went to the saw shed to see how things were going He testified that the three gave him "a little bit of static" about something, and he decided he wanted them discharged His superiors affirmed his decision, and about 11 a in he told them of their termination They were paid off and checked out with the steward, Ballard None of them told him that he thought he was being let go because of any protests over safety or working conditions A few days later, they asked the business manager of 6 See St Regis Paper Company 192 NLRB No 87 holding that even a S The steward and the local s business manager both testified that the miniscule controversy may give rise to concerted protected activity proper procedure for an electrician who is told the day before what his 7 The person actually operating the saw used a special type of hard hat assignment is to be is to go directly to the toolcrib after check in pick up with adaptors for attaching the plastic face shield what he needs and then report to the work site 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 153, Robinson, to investigate their discharges Their termination slip said it was for low productivity, and none of them suggested to him that the Company might have had another unrevealed reason for terminating them Robinson and Ballard went out to the site with a representative of the National Electrical Contractors Association They spoke to Thornberg and to members of his crew Their investigation took about an hour, and Robinson and Ballard decided, on the basis of what they heard, not to protest the discharges, concluding that they had been for good cause Not until an NLRB examiner interviewed him, after the filing of the charges in this case, 5 months later, did Robinson learn that the Charging Parties were claiming that they had protested safety conditions and had been discharged for that reason Concluding Findings Thornberg had told Vascil, his general foreman, that they were always bringing up safety questions that he couldn't answer, and he also accused them on Friday afternoon of being more interested in safety than in doing their work Thornberg was not asking them to take undue risks or to suffer prolonged discomfort in order to speed up their work What he expected of them was that they work reasonably diligently without resorting to demands which he considered had been put forward only to delay or avoid work I conclude that the asserted reason for their discharge, low productivity, was in fact the true and only reason for terminating them, and I shall therefore recommend dismissal of the complaint In view of that recommendation, I see no reason to consider the merits of Respondent 's interesting arguments that the Occupational Safety and Health Act of 1970 precludes Board determination of this case I am satisfied that Thornberg decided to discharge Meer, Lowry, and Simmons late in the week ending October 1, because of their previous unsatisfactory work performance, which culminated the morning of their first day on the saw, with their undue delay in getting started I think Thornberg was justifiably angered by their prolonged trip to the toolcrib and the first-aid station to obtain equipment which they could have picked up before reporting to their work area It is true that Meer or Lowry or Simmons, or some combination of the three, complained about the water near the saw, asked for a catwalk to avoid obstructions on the deck, and refused to uncouple the air hose (all of which might charitably be regarded as protesting a lack of safety or comfort) but I believe that Thornberg regarded these complaints as a cover up for their lack of diligence, rather than being put forward as meritorious in themselves CONCLUSIONS OF LAW 1 Rowen & Blair Electric Company is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 Local Union 153, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent has not engaged in any unfair labor practices alleged in the complaint RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety