Daniel Construction Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daniel Construction Company and John R. Ed- wards. Case 5-CA-13250 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On April 12, 1982, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed cross-exceptions and a brief in answer to the General Counsel's exceptions and in support of Respondent's cross-exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, but only for the reasons set forth below. We agree with the Administrative Law Judge's conclusion that Respondent did not violate Section 8(a)(1) of the Act by discharging employee Ed- wards. The following relevant facts are in the record and are uncontroverted. Respondent is a construction company which had a contract to replace some steam generators at a nuclear power plant. Respondent's work force for the job involved about 900 to 1,000 employees at a time. Alleged discriminatee Edwards was hired as a la- borer on the project by Respondent on February 2, 1981. Edwards was shown a film both before and after he was hired about the hazards of radiation exposure and Respondent's safety measures. After he was hired, Edwards was also given a training course on radiation exposure and measures required by Respondent to protect employees from it. Like all the employees who were exposed to radiation while working in the plant structure, Edwards wore protective clothing and devices which meas- ured his radiation exposure each day. One of the jobs that Respondent occasionally re- quired laborers to perform was called "jumping the The General Counsel and Respondent have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions 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). We have carefully examined the record and find no basis for reversing his findings. 264 NLRB No. 104 pipe." This job required the employees to enter an empty pipe which is normally used to carry water to cool the nuclear reactor. Since the pipe con- tained high levels of radiation, employees were only allowed to stay in it for a short period of time and their exposure was carefully monitored. On March 25, 1981, Edwards was told by two foremen that he should remain in the lunchroom to receive training for jumping the pipe. Edwards asked one of the foremen if jumping the pipe was mandatory and the foreman replied, "No." The other foreman then called Edwards over and asked him if there was a problem, to which Edwards re- plied that he did not want to jump the pipe because he did not want to receive as much radiation at one time as the job involved. The foreman told Ed- wards to report to his regular job.2 Several hours later, Edwards was called to Re- spondent's labor superintendent's office. Edwards repeated to the superintendent that he would not jump the pipe because he did not want to receive the amount of radiation involved in the task. The superintendent and Respondent's health physicist tried to persuade Edwards that jumping the pipe was not unsafe. When he would not change his mind, he was fired. Clearly, Respondent was entitled to select work- ers who would perform work that Respondent had contracted to do.3 And, from these facts, it is evi- dent that Edwards was one of the employees hired, inter alia, to jump the pipe, one of the tasks neces- sary to fulfill Respondent's contract. Moreover, al- though it is unclear from the record whether Ed- wards was specifically aware of "jumping the pipe" prior to the time that he took the job with Respondent, it is quite clear that Edwards was aware that he would necessarily be exposed to above normal radiation while in Respondent's employ, and that the job was, in that sense, inher- ently dangerous. At the same time, there is no evi- dence that jumping the pipe could be made any safer, or that it was Edwards' objective to persuade Respondent to take steps to make the task safer when he refused to perform it. We have consistently found lawful the discharge of employees who insist on choosing unilaterally when they will work overtime4 or when they will 2 Edwards had apparently heard various rumors that some employees had suffered ill effects after jumping the pipe. For example, one employ- ee had told Edwards that the employee had experienced sickness and sexual impotence a few days after jumping the pipe. Shortly after Ed- wards was discharged that employee quit rather than jump the pipe a second time. 3 See, generally, Redwing Carriers Inc. and Rockana Carriers, Inc., 137 NLRB 1545 (1962), enfd. 325 F.2d 1011 (D.C. Cir. 1963), cert. denied 377 U.S. 905 (1964). 4 See, e.g., John S. Swift Company, Inc., 124 NLRB 394 (1959), and Successful Creations, Inc., 202 NLRB 242 (1973). 770 DANIEL CONSTRUCTION COMPANY work on Saturday5 where such requirements are a mandatory part of their jobs. Similarly, and in light of all the surrounding circumstances, we cannot find unlawful the discharge of Edwards for choos- ing unilaterally not to perform part of the job he was hired to do.6 Accordingly, we agree with the Administrative Law Judge that the complaint should be dismissed in its entirety. 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I See, e.g., Wolverine Worldwide, Inc., 247 NLRB 921 (1980), and De- pendable Lists, Inc., 239 NLRB 1304, 1313 (1979). In a similar vein, see Laredo Packing Company, 241 NLRB 184 (1979), involving an employee's refusal to work on a holiday, and Yellow Freight Svstem. Inc., 247 NLRB 177 (1980), involving an employee's refusal of a job assignment. I We note that this case is distinguishable from Al//luia Cushion Co.. Inc.. 221 NLRB 999 (1975). since the employee there was asserting that the employer was not meeting safety standards established in California law. Here, there is no evidence that Edwards was asserting or that Re- spondent was not in fact in full compliance with Federal regulations on nuclear safety. Indeed, what ec.idence there is on the subject indicates that Respondent was in compliance We note additionally that Edwards is not entitled to the protections afforded economic strikers since he was only refusing to do a part of his job rather than his entire jobh. In ditil- guishing the instant case from Alleluia Cushion. Chairman; Van de Water and Member Hunter do niot necessarily imply agrecmenl with the holding or rationale of the latter case DECISION SIATrMENI 01 ITHI CASE THOMAS A. RIccI, Administrative Law Judge: A hear- ing in this proceeding was held at 'illiamsburg, Vir- ginia, on March 1. 1982, on complaint of the General Counsel against Daniel Construction Company, herein called the Company or the Respondent. The complaint issued on August 17, 1')81, upon a charge filed on April 20, 1981, by John R. Edwards, an individual, herein called the Charging Party. The sole issue to be decided is whether the Respondent discharged Edwards in viola- tion of Section 8(a)(l) of the statute. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following: IiNDI)N(,S 01: FACT I. I'HE BUSINE SS OF THI- RI:SPONDtN I Daniel Construction Company, a Soulh Carolina cor- poration, is engaged in the building and construction in- dustry in various States besides Virginia. )uring the 12- month period preceding issuance of the complaint it re- ceived goods and materials valued in excess of $50,000() directly from out-of-state sources. I find that the Re- spondent is an employer wsithin the meaning of the Act. II. THE A II EGED UNFAIR LABOR PRACTICE At Surry, in the State of Virginia, the Virginia Elec- tric Power Company operates a plant which uses, or cre- ates, nuclear power, or what the witnesses spoke of as a 'adiation plant. The best that I can gather from the testi- mony here is that the plant is for the most part a very large building, a sort of monster dome, that everybody calls the "containment." Inside that cover are all the ma- chines and technical gadgets which cause the plant to function. There came a time when the entire electrical generator of the plant had to be replaced, and Daniel Construction, the Respondent here, contracted to do the job. It was a big job, for Daniel's work force came to about 900 to 1,000 men at a time. The inside of that con- tainment is a dangerous place to work in, both for Vepco regular employees and for any employees of outside con- tractors who have to do work there. Everybody is ex- posed to "radiation," whatever that means to a layman. That this exposure endangers the health of the employees is the clearest thing on this record. Indeed, there is a Federal agency called Nuclear Regulatory Commission that is responsible to see that all such operations conform with safety and health regulations supervised by the Fed- eral government. During 1981, while Daniel was carrying out its con- tract, one of its employees was John Edwards, an un- skilled farmhand who wanted work for a few winter months until the farming season came back. After work- ing for almost 2 months, and just about 2 or 3 weeks before he planned to return to his uncle's farm, Edwards decided that the job in this nuclear plant was too risky. He and some others were about to do a particular job called "jump the pipe." He personally had never been told to do that but others in his category had done it while he was there. He refused to do it, because, as he told his supervisor at the time, he did not want to be ex- posed to too great an amount of radiation. Edwards was fired for refusing to do the work for which he was hired. The complaint calls this a violation of Section 8(a)(1) of the National Labor Relations Act, a law designed to en- courage and protect unions and concerted activity by employees generally. The Respondent denies any illegal motivation in its action. Its essential affirmative defense is simply that the man knew when he was hired he was going to be ex- posed to "radiation," that he accepted the risk in return for which he was paid, and that when he refused to work as ordered he simply lost the right to remain on the payroll. I find no merit in the complaint and shall therefore recommend dismissal. My reason is one, and only one: A factual finding that when Edwards went to work on that project he knew the work he was hired to do was dan- gerous, that he would be exposed to "radiation," that the amount of exposure-in dosimeters or by whatever tech- nical language it be called-would be measured as the time passed, and that he would be protected to the extent that scientific methods and safety regulations could take care of him. After doing it a while, and get- ting paid, he decided he was no longer willing to be ex- posed to the radiation, and refused to continue doing it. I 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find no fault with his decision. A coworker, Clyde Ghol- ston, who also testified as a witness here for the General Counsel, took the same action a week after Edwards was discharged. Gholston, also a laborer or utilityman like Edwards, had done the so-called jump the pipe assign- ment before. Asked to do it again after Edwards was gone, he just "walked off the job." These are his words. His position was the same as that of Edwards. The man who is told to do the work for which he is hired, refuses, and is sent home, is in no different posture than the man who just goes home when he is told to do the job. Nei- ther can claim wages from the employer thereafter. This is exactly what the General Counsel wants me to order this Respondent to do-pay the man even though he re- fused to do the work called for in his job description. I know of no law, certainly I see nothing in Section 8(a)(1) of this Act, which says a man who is hired to do something can say he wont and still be entitled to contin- ued pay. I do not read any of the case precedent cited in the General Counsel's brief as supporting such a proposi- tion. When a truckdriver refused to drive a truck that has no brakes-a violation of ICC rules, I suppose-he is not refusing to do the job for which he was hired. When a worker refuses to continue working because the pro- tective gear he always wore is so worn out it no longer protects him-surely a violation of some health law or other-he is protesting a dangerous innovation of his conditions of employment. But does it follow from this that a policeman who decides there are too many crooks on the streets at night can tell the lieutenant he will not take the night shift and still have a right to remain on the public payroll? Can a fireman choose which burning building he will approach, depending upon how hot one particular fire may be? However artfully distorted, this is the question the General Counsel cannot avoid. There is confusing testi- mony as to exactly what the assignment requires of a la- borer when he "jumps the pipe." Does he actually lower himself inside? Does he just lean in a distance and fix something? Whatever it is, the General Counsel offered evidence tending to show that the "radiation" inside the pipe, or the amount of dangerous air, or chemical fumes that could possibly reach the laborer, was high; big num- bers were used by some of the witnesses. But I do not know-and surely this record does not show-exactly how the level of possible radiation effect in this one job compares to the many other assignments given all over the place to the total utility men group. But even were I to assume that to "jump the pipe" would have exposed Edwards to a more cumulative amount of radiation than any previous assignment he had had, I would still be hearing the General Counsel argue that, like the cop, Edwards too could pick and choose which of the dan- gerous beats he would patrol. There is really no need to set out in detail the eviden- tiary proof that the work Edwards agreed to perform when he took the job was a dangerous one-the training sessions he had to attend before starting, the precaution- ary films he had to study, the mechanical devices he had to wear all over his body to keep track progressively of how much radiation he received, the body count of radi- ation already received as time went along, etc. It is pre- cisely because the successive jobs the utilitymen must do expose them to varying degrees, or amounts, of radi- ation, that all of them must wear those mechanical gad- gets that measure just how much radiation they are ex- posed to from time to time. The amounts are totaled pe- riodically so that no one is ever permitted to receive an amount in excess of limits set by Federal regulations. The proof of the basic fact upon which dismissal here is dictated came honestly out of Edwards' mouth, not once but three times: "I told him [Foreman Dick Mull] that I didn't want to receive that amount of radiation at one time." "I told him [Superintendent Bridges] that I didn't want to receive that much radiation at one time." From Edwards' prehearing affidavit: "I said I would go to training but would not jump the pipe. Jones asked, 'Do you think you are better than the others?' I replied, 'No, I just don't want to pick up that much radiation at one time."' What the witness was saying is that, while it was his agreement to work under dangerous conditions up to a certain point, he was not obligated to do so when the danger exceeded the point which he thought was too much. How much is too much? With the Federal gov- ernment taking pains to look after the safety of all people working in "radiation" containments of this kind via a comprehensive scientific overseeing agency-the NRC- I do not see how it becomes the responsibility of the Na- tional Labor Relations Board to enforce the same safety regulations by compelling any employer to keep a recal- citrant, or fearful, employee on the payroll. Not only do other employees in this plant, in the same classification as Edwards, do a variety of work assign- ments inside the containment, but Edwards himself worked in that same area when he just started. Again from his own admissions. He said he had to wear a mask. "It would be used in the radioactive hot area, so that you wouldn't breathe the direct radiation that was around you." "Q. Did you wear a daily-did you wear a pocket dosimeter? A. Yes, sir. Q. Could you explain what that is? A. It's an instrument used to record how much radiation you pick up in a day's time. .... We had a T-D we wore inside the protective clothing . . . it's just a little box like with a piece of film in it which they read to see how much radiation we picked up .... And you wore that inside your clothing, and then you wore one or two on the outside. A high and a low .... You'd clip them together and drop them in a box to be read by the dose controller." Working inside a nuclear power plant is a dangerous way of living-period! And everybody knows it, both those who work there and those who read the newspa- pers (see Madison, below). All that happened here is that Edwards changed his mind. First, when hired, he told the interviewer he was not scared. After 2 months of seeing his body count go up, like everybody else's, and with only 2 weeks or so left before he was going back to the farm anyway, he decided he had had enough. So he left. Refusing to do your assigned task is the same as quitting. Both parties injected extraneous elements into the record, all of them beside the point. 1 he General Coun- sel had Edwards say there were other employees who 772 DANIEL CONSTRUCTION COMPANY came to feel just as he did about this question of "jump- ing the pipe," that he had talked to others who also felt this particular assignment involved radiation exposure to a higher degree than other work they all did. This fact proves, according to the prosecution, that Edwards was not acting alone, but "in concert" with fellow employ- ees. Ergo, since his objection to performing the work for which he was hired was taken jointly with others, it fol- lows it falls in the ambit of the statute, which does refer to concerted activities and conditions of employment. If this argument is correct, it means that, while a company may be free to insist one man perform the work he as- sumes when he comes on the job, it may not demand that two employees do so, or all of them, should they all just refuse to work! I do not think it worthwhile to engage in this suggested polemic. When management decided this jumping the pipe had to be done as part of the continuing work, it told six or seven laborers they would be given a few hours of extra protective training before going ahead. This was part of the usual protective practices common inside this project. Only two or three employees were going to jump the pipe, the others were to stand by and be ready should they be needed. Edwards told his superiors he would not expose himself to that much radiation even before going into the training class; actually he refused both to go to the class or to do the work. Now the Re- spondent contends it fired him for refusing to go into the training class, a disobedience that had nothing to do with work assignment, or exposure to greater danger at all. It separates the preparation from the actual work to which the preparation led, as though one had nothing to do with the other. I can understand the reason why the Re- spondent advances this seemingly colateral defense, and it is because the case precedent, both Board decisions and circuit court of appeals review opinions, many in conflict, present a confusing picture. But I deem this side issue equally irrelevant here. It is a play on words. That Edwards told the supervisors he would in no event "jump the pipe" could not be clearer, and that the reason for the Company insisting he take the training was exact- ly so he would do that work, hardly needs comment. The General Counsel also contends this is a good com- plaint because Edwards' position expressed to manage- ment was not "unreasonable." The Respondent contends the man was really faking when talking to the boss, that he really was not scared at all, only seeking a devious way of returning to the farm. It even defends on the as- sertion Edwards had no reason to be frightened, it was only a nuclear plant and no more. It would demean this decision to respond to such arguments, considering the unquestioned facts shown on this record. A final word is in order, about the extended, bela- bored, sometimes incomprehensible and just about in- credible testimony of John Madison, the Respondent's health physicist, who was presented to articulate a total- ly separate defense on behalf of the Company. The es- sence of his contention was that this complaint should be dismissed because there is no less danger of becoming impotent working on a farm-where Edwards wanted to go-than working inside a nuclear, or radiation plant like this "containment." He said he explained this to Ed- wards' group when he was hired, how, despite radio and newspaper propaganda, there was nothing "unique" in this plant, because people live "with radiation every day of their life, and we all have, since day one, we have all lived with radiation." To hear him say it, all the trouble of mankind, from time immemorial, stemmed from the fact Adam did not wear a dosimeter when he ate the apple in the Garden of Eden. Decision here does not rest on any of the testimony of this witness!' RECOMMENDED ORDER 2 I hereby recommend that the complaint be, and it hereby is, dismissed. I I think the best summary of this case is set out by counsel for the Respondent in his post-hearing brief: · . exposure to radiation on the Vepco project is an everyday oc- currence which happens to each and every employee on the site. A protest against one job on the site because of a fear of receiving too much radiation is a protest against each and every job on the Vepco project. It would be unconscionable to prevent Daniel from termi- nating employees who refuse to work around radiation, when the very essence of the entire project is radiation work. If Edwards fos- tered serious doubts about radiation work, he never should have sought employment at a nuclear power station. If Edwards later de- veloped a fear about radiation work, he was certainly free to quit his employment with Daniel at any time. In any event, Daniel should not be required to retain in its employ those employees who refuse to perform jobs which entail exposure to radiation. An employee cannot dictate which part of their allotted tasks they choose to per- form. ... Someone has to perform those jobs and Daniel did every- thing possible to ensure that John Edwards was qualified and will- ing Daniel should not be further burdened with placing Edwards in only those positions which meet his approval. s In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 773