James Walsh Construction Co.

JAMES WALSH CONSTRUCTION CO. 319 James Walsh Construction Company and James A. Braswell, Sr. and Jimmy Lawson Pye. Cases 10-CA-21990 and 10-CA-22046 18 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 19 March 1987 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The General Counsel filed exceptions and support- ing brief, and the Respondent filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 Although the Respondent's refusal to consider volunteers to take the place of Braswell and Pye on the layoff list arguably was a departure from past practice, the Respondent presented credited evidence that, be- cause of their poor work performance, Pye and Braswell were chosen for layoff prior to engaging in any protected activity. Accordingly the Re- spondent's refusal to substitute for Braswell and Pye, volunteers whose performance met the Respondent's standards, does not support a finding of discrimination on the basis of the protected concerted activity of these two employees. Sharon Howard, Esq., for the General Counsel. Forest W. Hunter Esq., of Atlanta, Georgia, for the Re- spondent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 10 December 1986 in Augusta, Georgia, pursuant to a consolidated complaint filed by the Acting Regional Director for Region 10 of the National Labor Relations Board (the Board) on 20 October 1986. The complaint alleges that violations of Section 8(aX1) of the National Labor Relations Act (the Act) were committed by Respondent Walsh Construc- tion Company (the Respondent) by its discharge and fail- ure or refusal to reinstate James A. Braswell Sr. and Jimmy Lawson Pye because they had engaged in con- certed activity with other employees for the purpose of collective bargaining and other mutual aid and protec- tion. The complaint is based on separate charges filed by James A. Braswell Sr. in Case 10-CA-21990 on 4 Sep- tember 1986 and by Jimmy Lawson Pye in Case 10-CA- 22046 on 29 September 1986. Respondent by its answer filed on 12 November 1986 has denied the commission of any violations of the Act. After due consideration of the evidence and testimony presented at the hearing including the demeanor of the witnesses and of the briefs filed by the General Counsel for Respondent, I make the following FINDINGS OF FACT I. JURISDICTION 1. THE BUSINESS OF RESPONDENT The complaint, as amended at the hearing, alleges, Re- spondent admits, and I find that Respondent is, and has been at all times material, an unincorporated division of' Guy F. Atkinson Company, a Nevada corporation with an office and place of business located at Waynesboro, Georgia, where it is engaged in the construction of a nu- clear power plant, that during the past calendar year (preceding the filing of the complaint), a representative period at all times material, Respondent at its Waynes- boro, Georgia facility provided services valued in excess of $500,000 to Georgia Power Company, which, in turn, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia, and that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent is a general construction contractor en- gaged in the construction of Georgia Power Company's Vogtle nuclear power plant. In this capacity it employs journeymen mechanics and operators by Operating Engi- neers (the Union). Respondent is reimbursed for its sala- ries and overhead and paid by Georgia Power Company who has a representative (Equipment Coordinator Char- lie Gay) assigned to the project to oversee the work to ensure that Georgia Power is getting the work per- formed as contracted for with the Respondent that uti- lizes Georgia Power equipment under the terms of the contractural relationship between Georgia Power and Respondent. Braswell and Pye are journeymen mechan- ics referred to Respondent by the Union and had worked on the project for Respondent on several occasions prior to their most recent referral and employment during 1986. The mechanics on the B shift, commencing at 4:30 p.m., were supervised by Ricky Blackburn, who served as an assistant master mechanic. The operators on this project were supervised by Neubeni Barwick, a master mechanic. Both Blackburn and Barwick are members of the Union and reported to Equipment Superintendent Arnold Sanders. Blackburn's job is described as one who "totes the radio" wherein he carries a radio to apprise him of needed repairs on equipment on the site. On 21 August 1986 Blackburn was absent and Union Stewart Jeffrey Waters was informed by Superintendent Sanders that mechanic Hubert Keen would "tote the radio" in his absence that involves an upgrade to assistant master me- 284 NLRB No. 45 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chanic and an increment in pay. Waters protested to Sanders that it was Pye's turn to tote the radio in ac- cordance with an informal rotation system that had re- cently been utilized in selecting a replacement for Black- burn. Sanders responded that he wanted either Keen or Mechanic Joie Sikes to tote the radio as they were more successful than the other mechanics in getting production from the mechanics. When Waters went out to the shop he was questioned by the mechanics about why Keen was toting the radio. He repeated Sanders' explanation. Shortly, thereafter, the mechanics asked to meet with Sanders and Waters asked Keen to call him on the radio. Sanders appeared and a brief meeting lasting about 2 to 4 minutes took place among the mechanics and Sanders. The mechanics questioned Sanders concerning the reason for his refusal to allow Pye to tote the radio and his ap- parent refusal to rotate the upgrade among the mechan- ics. Both Braswell and Pye, among other mechanics, spoke up. Braswell told Sanders that he would not work any harder for Keen or Sikes than he would if any other mechanic was toting the radio and asked Sanders to prove his statement that Keen and Sikes were able to get the most production from the mechanics. Pye testified he told Sanders this looked liked some more of this "damn buddy buddy shit" and that someone was lying. Neither Waters nor Braswell recalled Pye's having used vulgari- ty or curse words. Waters testified that other mechanics had spoken up. Both Sanders and Waters testified that no voices were raised. In response to a direct question on cross-examination Waters testified he would not charac- terize the meeting as bitter. In response to the inquiries Sanders told the mechanics he was the boss and refused to change his decision not to permit Pye to tote the radio. Shortly thereafter, he spoke with Waters and told him he should not have said anything to the men, ac- cording to the unrebutted testimony of Waters, and Waters replied that it was his job as union stewart to keep the men informed. Approximately 2 to 3 hours later, according to the tes- timony of Waters, he was informed by Sanders of an im- pending layoff, and that five operators and two mechan- ics would be laid off. Sanders had selected the names of the employees who would be laid off and listed them (G.C. Exh. 3). The two mechanics to be laid off were Braswell and Pye. Waters testified he asked Sanders whether he could obtain volunteers to take the layoff in- stead of the men listed on the layoff sheet and that Sand- ers agreed to let him attempt to obtain volunteers to re- place the operations on the list but would not allow him to attempt to do so to replace Pye and Braswell on the list although Waters informed Sanders that Craig Cox, a mechanic with less seniority than Pye and Braswell, wanted to volunteer and might be willing to take the layoff. Waters testified that Sanders wanted "to get these two while the getting's good." Waters testified that in the past he had been permitted to obtain volunteers and change the list of men to be laid off by informal agree- ment among the mechanics for the least senior mechanics to be laid off first. The labor agreement between the Union and the RespOndent does not provide for seniority in any aspect of the employer-employee relationship. Moreover, Respondent had issued a reduction-in-force policy issued 25 June 1982 (R. Exh. 2), which provides as follows: "When a piece of equipment is shut down, the employee[s] regularly assigned to that piece of equip- ment will be terminated. In those instances wherein a general reduction of employees is required, the selection of the employees to be terminated is to be made by the Project Equipment Manager or his designated shift su- perintendent." It also provides that consultation with the master mechanic is advisable in this situation. Additional- ly, the Respondent issued a memo on 14 April 1986 (G.C. Exh. 2), reminding staff personnel of its guidelines "to be used to determine the persons to be included in a force reduction: (1) Completion of/or elimination of job activity. (2) Idling of specific equipment. (3) Job per- formance—i.e. check for reprimands. (4) Absenteeism." The layoff was carried out on 22 August 1986 in accord- ance with Sanders' list as Waters was unable to obtain volunteers to replace the operators on the list and Sand- ers was unwilling to allow him to remove Pye and Bras- well from the list. Sanders was called as a witness by both the General Counsel pursuant to Rule 611(c) of the Federal Rules of Evidence and by the Respondent in its case. Sanders ac- knowledged attending the meeting but did not consider it to be a meeting at which anything out of the ordinary had occurred and denied that he was upset by any com- ments made by Pye or Braswell at that meeting. Sanders testified further that he was informed on Wednesday, 20 August 1986, of the need for a layoff by his superior, Shift Superintendent Jim Ward, and he prepared the list of employees to be laid off in accordance with the number designated by Ward. He put Pye and Braswell on the list as two mechanics to be laid off as a result of continuing dissatisfaction with their job performance on the basis of repeated complaints made to him by Georgia Power Coordinator Gay on four or five occasions over several months at which time Gay had told him that he needed to tighten up the job performance of Pye and Braswell as they were standing around talking instead of working. Sanders testified he had told Assistant Master Mechanic Ricky Blackburn of this and told Blackburn to talk to them and he had been told by Blackburn that he had spoken to them. Sanders testified he had personally observed Pye and Braswell did not appear to be working on a number of occasions. Sanders testimony was cor- roborated by Gay who testified that he had told Sanders on several occasions that Sanders had a problem with Braswell and Pye and that Sanders needed to take care of it as he had observed them outside of their work area or talking instead of working. The most recent occasion was in July prior to the layoff of 22 August 1986, when Gay worked the B shift instead of the earlier day, shift as he normally did. Gay also discussed the problem of Bras- well and Pye with Neubern Barwick and may have dis- cussed it with Blackburn but did not specifically remem- ber doing so. Sanders' testimony was further corroborat- ed by Ricky Blackburn who acknowledged that he had been told by Sanders on several occasions to tighten up the work performance of Braswell and Pye and 'had de- cided to and did talk to all the mechanics in a group on at least two occasions at which time he told them they JAMES WALSH CONSTRUCTION CO. 321 had needed to tighten up their job performance. Black- burn observed that Braswell and Pye appeared to take longer to perform their jobs than required and that he had observed them talking instead of working. Blackburn testified he spoke to the men in a group rather than to Braswell and Pye in order to treat them like men instead of babies. Neubem Barwick also testified that Gay had spoken to him on an occasion complaining about the work performance of Braswell and Pye. Sanders testified he normally does not inform the men of a layoff until just prior thereto. This is a policy uti- lized to minimize a slowdown and possible vandalism that has occurred in the past shortly prior to an antici- pated layoff. On this occasion Sanders told Blackburn who was the immediate supervisor of the mechanics, of his decision to lay off Braswell and Pye on 20 August 1986, as Blackburn would be on vacation on 21 August 1986 when he planned to announce it and Blackburn agreed with his choice. Blackburn corroborated Sanders' testimony in this regard that he was informed on 20 August 1986 that Braswell and Pye would be laid off and that he agreed with the decision. Sanders testified further that he informed Neubern Barwick of the mechanics and operators to be laid off and that Barwick agreed. Bar- wick directly supervised the operators rather than the mechanics in the shop. Barwick testified that he raised no objection Concerning Sanders' decision about which mechanics and operators would be laid off as the equip- ment superintendent always makes these decisions. Sand- ers testified further that he decided to change the rota- tion of who ifilled in for Blackburn on 21 August as he did not want Pye or Braswell carrying the radio as they were due to be laid off. Approximately a week before the hearing, the remainder of the B shift had been laid off including Blackburn, who has no prospects for re- turning to this job. Sanders has accepted a position with another employer in another State. After the filing of the charge in this case, statements were taken by the Re- spondent and Blackburn gave a statement to the Re- spondent. Stewart Waters subsequently approached him and told him he could be subject to charges brought before the Union for making derogatory remarks about his brother union members. Braswell has since brought such charges against Blackburn as a result of his state- ment concerning this matter and these charges were pending at the time of the hearing. Blackburn came for- ward and testified in this case as set out above in the face of Waters' warning and the charges filed by Braswell. Analysis The General Counsel contends that the record demon- strates that Braswell and Pye were engaged in concerted activity when they, among other mechanics, requested and engaged in a group meeting with Sanders to protest the change in procedure for the filling of temporary va- cancies in the assistant master mechanic position and that this activity was protected as it concerned complaints about wages and terms and conditions of employment as the mechanics were paid a higher hourly wage rate whenever they performed the assistant master mechanics job and further that Braswell challenged Sanders assess- ment of their work performance and Pye asserted favor- itism was being used against the employees in making the decision to change the rotation of the upgrade to the po- sition of assistant master mechanic. It is undisputed that the job was winding down and the layoff itself is not alleged as a violation in the com- plaint nor does the General Counsel contend that it was made for other than legitimate business reasons. Rather the General Counsel contends that the selection of Pye and Braswell for the layoff rather than less senior em- ployees or Cox, a volunteer, was discriminatory. The General Counsel contends a prima facie case has been es- tablished by the timing of the announcement of the layoff occurring only 3 hours after the meeting between Sanders and the mechanics and in view of Sanders' com- ments to Waters that he was going "to get those two [Braswell and Pye] while the getting is good." Sanders for his part testified that he wanted to lay off these two mechanics rather than others including mechanic Cox, whom he considered to be a good worker. The General Counsel further contends that the layoff of Braswell and Pye represented a departure from past practice wherein Waters was permitted 40 seek volunteers for layoffs. The General Counsel further contends that the Respondent has failed to rebut the prima facie case of violations of the Act, by failing to show that the action would have taken place even in the absence of the protected activi- ties of Braswell and Rye. Respondent contends that the activities engaged in by Braswell and Pye were not protected, as they were en- gaged in to protest the refusal of Respondent to promote them to a supervisory position. Further Respondent con- tends that the evidence did not show that the meeting was bitter as characterized by the General Counsel in her opening statement,' but rather the evidence shOwed that a brief business meeting had taken place wherein Sanders rejected the demands of the mechanics to con- tinue to rotate the temporary upgrade to assistant master mechanic. The Respondent further contends that the evi- dence shows that Sanders acted solely from legitimate business motives to lay off the two mechanics Respond- ent could most afford to lose, those whose job perform- ance was least satisfactory. I conclude that the General Counsel has established a prima facie case of a violation of the Act. Initially, I find the activities engaged in by Braswell and Pye were pro- tected as legitimate protests concerning their wages and terms and conditions of employment as promotion to the supervisory position on a temporary basis was a normal upgrade routinely offered to the mechanics and affected their wages, terms, and conditions of employment. Fur- thermore, their protest concerning Sanders assessment of their productivity albeit as a supervisor was inherently protected as was their protest of favoritism in the selec- tion of mechanics for the temporary upgrade. The con- certed nature of the protest of Braswell and Pye on behalf of themselves and their fellow employees clearly meets the test of protected activities set out in Meyers In- dustries, 281 NLRB 882 (1986). It is immaterial that the temporary promotion sought was to a supervisory posi- tion as their prospects for promotion were a condition of their employment. Ford Motor Co., 251 NLRB 413 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1980). The timing of the selection of Braswell and Pye for layoff and Sanders' refusal to allow Waters to seek volunteers to replace Braswell and Pye on the layoff list while allowing Waters to seek volunteers to replace the operators on the layoff list show disparate treatment in this case that was emphasized by Sanders' comment to Waters that he wanted to get Braswell and Pye while the getting was good. The disparate treatment following shortly after the engagement in protected concerted ac- tivities during which Sanders' authority was challenged and he was accused of lying established a prima facie case that Respondent's layoff of Braswell and Pye was motivated by their engagement in protected concerted activities, notwithstanding whether Waters would char- acterize the meeting as bitter. However, I find that the evidence presented by Re- spondent demonstrates that Braswell and Pye would have been laid off even in the absence of their engage- ment in protected activity. I found Sanders, Barwick, Blackburn, and Gay's account of events to be credible. I fmd Blackburn's steadfastness in his testimony concern- ing the job performance of Braswell and Pye, and that he had been apprised on 20 August 1986 (the day prior to the meeting of 21 August 1986), by Sanders of his de- cision to lay off Pye and Braswell even in the face of threatened actions by his fellow union members to be particulary noteworthy. This is consistent with Sanders' testimony that he had made the decision to lay off Bras- well and Pye the evening before the 21 August 1986 meeting. I am convinced that he told the truth. Further- more, Gay was an independent witness who had no reason to do other than truthfully testify in this matter, and in fact whose testimony the General Counsel does not dispute. Barwick also testified in a forthright manner. I do not regard the difference in the testimony of Sand- ers and Waters as significant. Both testified that the meeting between Sanders and the mechanics was brief, that all the mechanics spoke up, and that no one raised their voice. I do not find the instances related by Waters, wherein seniority was allegedly used, to be compelling in this case as they were few in number and apparently no set formula had been developed or acceded to by the Re- spondent and in view of the clear lack of contractural language or established practice of the use of seniority therein. Moreover, I do not view the action of Sanders of waiting for a layoff to terminate Braswell and Pye as unreasonable given the winding down of the job and his having previously been spoken to by Gay concerning their job performance and his instructions to Blackburn to discuss their job performance with them. Under all these circumstances, I find that Respondent has rebutted the prima facie case established by the General Counsel, by a preponderance of the evidence and has persuasively demonstrated that the Respondent would have laid off Braswell and Pye even in the absence of their protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984), and NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I accordingly recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Walsh Construction Company, the Respondent, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not violate Section 8(a)(1) of the Act by its layoff of employees James A. Braswell and Jimmy Lawson Pye. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'. ORDER The complaint is dismissed in its entirety. If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.