Blount Brothers Corp.

242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Blount Brothers Corporation and William C Kiser Case 9-CA-23667 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 12 1988 Administrative Law Judge George F Mclnerny issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed limited cross exceptions a supporting brief and an answering 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 as modified,' and conclusions and to adopt the rec ommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Blount Brothers Corporation Belle West Virginia its officers agents successors and 1 The judge recognized that the facts supported finding the Kisers en gaged in protected concerted activity as well as union activity See fn 11 of the judge s decision However he found that the failure and refusal to recall the Kisers violated only Sec 8(a)(3) even though the complaint also alleged an independent 8(a)(1) violation We find merit in the Getter al Counsel s limited cross-exceptions to the judge s failure to find an rode pendent violation of Sec 8 (a)(1) We therefore also find that the Re spondent violated Sec 8(a)(1) by failing and refusing to recall the Kisers because of their complaints about the work reassignment i e protected concerted activity under Interboro Contractors 157 NLRB 1295 (1966) enfd 388 F 2d 495 (2d Cir 1967) approved in NLRB v City Disposal Systems 465 U S 822 (1984) In adopting the judge s finding that the Respondent violated Sec 8(a)(3) we rely on Interior Alterations 264 NLRB 677 (1982) Finally we note that the record fails to support Respondents conten non that the Kisers actions were not in good faith Rather the record shows that the Kisers complaints were based on an honest and reasona ble belief that the work in question should have been assigned to iron workers In this regard we note that the master agreement (GPA) which gov erned the work of all crafts employed under the Respondents service and maintenance contract with duPont provides that project mainte nance conditions do not always justify adherence to craft lines and that periodic review of work assignments will be made for the purpose of ad justing assignments as appropriate to take care of changing needs This language does not on its face preclude challenges to reassignments of work Further the record establishes that the Kisers based their chat lenge on a belief that as a matter of past practice the performance of a minimum number of hours of work on a job constituted a jurisdictional assignment As the existence or nonexistence of the past practice was not definitively established we have no basis for finding the Kisers challenge unreasonable 2 We shall modify the judge s recommended Order and notice to con form with standard reinstatement language and to provide that the Re spondent shall expunge from its files any reference to the unlawful refus als to recall the Kisers assigns shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) (a) Refusing to recall its employees because they engaged in activities on behalf of the Union or because they engaged in protected concerted activ ity 2 Insert the letters (c) (d) and (e) in paragraph 2 at the appropriate places and substitute the fol lowing for paragraph 2(a) (a) Offer William C Kiser and Warden H Kiser immediate and full reinstatement to their former jobs or if those jobs no longer exist to sub stantially equivalent positions without prejudice to their seniority or any other rights or privileges pre viously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them , in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful refusals to recall and notify the employees in wasting that this has been done and that the re fusals to recall will not be used against them in any way 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT fail and refuse to recall our em ployees because of their union activity or because of their protected concerted activity WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer William C Kiser and Warden H Kiser immediate and full reinstatement to their former jobs or if those jobs no longer exist to sub stantially equivalent positions without prejudice to their seniority or any other rights or privileges pre viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL notify each of them that we have re moved from our files any reference to the refusal 291 NLRB No 38 BLOUNT BROS CORP 243 to recall and that that action will not be used against them in any way BLOUNT BROTHERS CORPORATION Engrid Emerson Vaughan Esq for the General Counsel Jay D St Clair Esq (Bradley Arant Rose & White) of Birmingham Alabama and Belinda S Morton Esq of Fayetteville West Virginia for the Respondent owned and operated by the E I duPont de Nemours & Company (dupont) at Belle West Virginia During the 12 months immediately prior to the issuance of the com plaint the Respondent in the course of its business oper ations performed services valued in excess of $50 000 di rectly for customers located outside the State of Ala bama The complaint alleged the answer admitted and I find that the Respondent is an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act DECISION STATEMENT OF THE CASE GEORGE F MCINERNY Administrative Law Judge Based on a charge filed on October 27 1986 by William C Kiser (the Charging Party) or Connie Kiser the Re gional Director for Region 9 of the National Labor Rela tions Board (the Board) issued a complaint on August 7 1987 1 alleging that Blount Brothers Corporation (the Company or Respondent) had violated and was continu rng to violate provisions of the National Labor Relations Act (the Act) by failing to recall employees William C Kiser and Warden H Kiser to their previous positions at its Belle West S irginia jobsite The Respondent filed an answer to this complaint in which it denied the commission of any unfair labor prac tices and entered several affirmative defenses which will be considered here Pursuant to notice contained in the complaint and as rescheduled by order of the Regional Director and by agreement of the parties a hearing was held before me at Charleston West Virgina on February 3 1988 at which the Respondent was represented by counsel and all par ties had the opportunity to present testimony and docu mentary evidence to examine and cross examine wit nesses to present both oral and written motions and to argue orally After the hearing ended Respondent and the General Counsel filed briefs which have been carefully consid ered Based on the entire record including my observation of the witnesses and their demeanor I make the follow Ing FINDINGS OF FACT I JURISDICTION The Respondent Blount Brothers Corporation is a maintenance contractor with its headquarters in Mont gomery Alabama For some years and at all times mate nal it has held a maintenance contract at the plant 1 There was some discussion in this case about the fact that a grievance was filed and processed through several steps of the grievance procedure The General Counsel admits that the charge was initially deferred be cause of the pendency of the grievance However there is no evidence that the matter proceeded beyond a letter dated November 14 1986 from the general vice president of the Iron Workers to the administrator of the GPA agreement Because no further action on the grievance was presented to this hear mg I decline to defer to some unknown process The time limits in the applicable collective bargaining agreement had expired before this hear mg opened II THE LABOR ORGANIZATION INVOLVED The complaint alleged the answer admitted and I find that Local Union 301 International Association of Bridge Structural and Ornamental Ironworkers AFL- CIO (the Union) is a labor organization within the mean rng of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background K As mentioned above the Company Blount Brothers Corporation has for some years had a contract to per form maintenance work at the duPont plant in Belle West Virginia a few miles upstream on the Kanawha River from the West Virginia State capital at Charleston To perform its functions under this contract with duPont the Company employs as its needs require members of a number of different trades including ironworkers car penters sheet metal workers and laborers These ma chanics and tradesmen are represented by their own local and international unions but since 1985 all the trades have worked under a master agreement known as the general presidents project maintenance agreement (GPA agreement) This contract apparently was worked out at the highest levels of the respective unions together with representatives of maintenance contractors It was clear from the testimony in this case that some if not all of the more tradition oriented local mechanics as well as union officials were unhappy with some of the innova tive provisions of the GPA agreement not to mention reductions in wages provided for in the contract Al though the existence of the GPA agreement and the re sentment over its provisions furnishes some background for the facts in this case the agreement does not really affect the operative facts in the case B The Layoff of the Kiser Brothers William C Connie Kiser is an ironworker and has been a member of Local 301 since 1962 He had been a member of the Union s executive board for about 7 years at the time of this hearing He had worked for Blount Brothers on a casual basis in 1974 and 1975 but from 1976 on he considered himself a permanent employee of the Company at the duPont plant He worked there full time except for a brief strike and for a 6 month period of layoff in 1985 In 1986 he had been laid off for a few days but had been recalled by the Company Connie Kiser was a working foreman but from time to time if the Iron Workers work force was increased he had acted as a general foreman with three or more fore 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD man under him 2 But at the times material here Connie Kiser worked with only one other ironworker his broth er Warden H Hoss Kiser who also functioned as the union steward on the job Hoss Kiser had been a perma nent employee since 1974 when the job started The Kiser brothers were considered good workers and had received no discipline or warnings over the years In the summer of 1986 the Company was instructed to replace the roof on the plant powerhouse There is some conflict between Connie Kiser and the Company s super intendent Morris Smokey Taylor as to what prelimi nary arrangements were made between the two men on which Union was going to have jurisdiction over this work the Iron Workers or the Sheet Metal Workers There is no dispute however that members of the Iron Workers were to perform at least the first section of a four stage operation 3 On August 22 Taylor came into the ironworkers shop where both Kiser brothers were working Taylor informed the Kisers that they would be laid off that day and he would recall them in a week or two Connie asked about the work on the powerhouse roof and Taylor replied that he was giving that work to the Sheet Metal Workers Both Kisers objected to this Hoss laid down his tools and said that he was going to call the Iron Workers Union to inform the business agent that the last two ironworkers on the job were being laid off and that Taylor had changed the work assignment for the powerhouse roof After Hoss left Taylor and Connie continued talking Taylor was under the impression as reflected in Connie s testimony (and in his own when he was on the stand) that he and the Kisers had an agree ment on the assignment of the powerhouse work first to the Iron Workers then to the Sheet Metal Workers Connie denied that a deal had been made and continued to insist that the work belonged to the Iron Workers Taylor was angry and told Connie that the Iron Workers would get no more of that work and that Connie had broken a bargain with him 4 The Company maintained in its answer that Connie Kiser was a su pervisor within the meaning of Sec 2(11) of the Act The only evidence about this was Kiser s testimony that he told other ironworkers where to go and what jobs to do when given general instructions from the Com pany s superintendent There is no evidence that these directions were given in anyway other than as a conduit between management and work ers Connie Kiser so far as can be ascertained for the record here had none of the indicia of a supervisor as provided in the Act and merely performed as directed by higher management I find that he was not a supervisor within the meaning of the Act Iron Workers Local 28 219 NLRB 957 (1975) s The daily timesheets submitted by Connie Kiser from July 28 to August 27 show a total of 24 hours on July 28 22 hours on July 29 12 hours on August 1 16 hours on August 4 and 16 hours on August 5 for a total of 90 hours worked by Iron Workers on the powerhouse roof Without further information I cannot determine whether this represented three quarters of the total job as stated by Connie Kiser or one quarter as claimed by Smokey Taylor A resolution of this question is not neces sary to the resolution of the issue in this case namely whether the Com pany unlawfully refused to recall the Kisers to work 4It is unclear from the evidence what the bargain was So far as I can determine from Taylor s testimony he apparently understood that the Iron Workers would not complain if part of the powerhouse job was assigned to another trade The Kiser brothers were under the impression that if they were assigned 8 hours work on a job that constituted an assignment of the entire job The only agreement that Taylor could recall was an agreement between him and the Sheet Metal Workers Taylor stormed out of the shop and the Kisers fin ished their work for that day On October 29 the Kisers were called back to work by the Union and worked through November 6 when they were again laid off They were not called back at any other time after August 22 C The Failure to Recall the Kisers The practice at the Belle plant during the times mate nal was that when the Company needed Iron Workers the superintendent would notify the foreman how many hours were required for a job Then either the foreman or the steward would call Iron Workers into work When the Kisers filled the positions of foreman and steward respectively they selected the people to call sometimes consulting the Union s office to locate those they wanted Ordinarily employees were called individ ually by name to report to work After the Kisers were laid off Taylor testified that he was upset with Connie and that he did not feel he could work with Connie again as a foreman 5 The relationship between me and Connie at that time was deteriorating I can t have that relationship between the superintendent and the foreman and I decided it was time to make a change Accordingly when he was informed on Monday August 25 that same ironwork had to be done Taylor called another Iron Workers foreman Chuck Simmons asked him pick up another ironworker and come in to do the necessary work On Tuesday August 26 there was a meeting between Taylor and Iron Workers Local Business Agent Don Harrison and Iron Workers International Representa tives Lawrence Cricket Burgess and Hoss Kiser Taylor explained what he had done about the assignment of the powerhouse work 6 Burgess agreed that Taylor was within his rights under the GPA agreement and the green book in making the assignment as he had 7 A week or two after this meeting Taylor contacted Delmar Blankenship a former foreman for Blount Broth ers at duPont and offered him the ironworker foreman job He accepted and remained as foreman until at least the time of this hearing Both Taylor and Blankenship denied that the latter was ever told or instructed not to call the Kisers for work at the duPont plant However Union relative to the powerhouse work Taylor was sure that the Kisers were aware of this agreement on August 22 although he never stated that he had talked to them about it at any time Taylor was sure that everyone knew the agreement I made with Ray Todd the Sheet Metal Workers business agent The Sheet Metal Workers business agent at the time Wilson R Todd testified that he had heard at a Business Agents meeting that the Company had assigned the powerhouse roofing work to the Iron Workers He went to see Taylor who admitted that this was so but said that future work on this job would be given to the Sheet Metal Workers s He also testified that he laid off the Iron Workers foreman as a con solidation and an economy measure just as he laid off the operating engi neer the teamsters foreman and changed the boilermaker millwright and sheet metal foreman 8 Taylor also referred both at this meeting and at the hearing to a Green Book decision dating back to 1947 awarding this type of work to the Sheet Metal Workers 7 Burgess according to Hoss Kiser s testimony said that Taylor could do anything he wanted to under the GPA agreement BLOUNT BROS CORP 245 the testimony of Business Agent Don Harrison shows that except for one or two occasions after August 22 the Company either directly through Taylor or through Blankenship called individuals directly or asked the Union for referrals by name The Kisers were never named and were only called two times The first exception occurred when someone from the Company called Harrison and said that Taylor wanted two ironworkers out of a list of four specified names Harrison had never chosen people in that way and he refused to make the choice The Company then subcon tracted that ironwork to an outside employer The other exception was at the end of October when Blankenship or his son in law Jackie Hughes called Harrison and did not specify the names of employees wanted At that time Harrison sent the Kisers but they were never re quested again nor were there any further requests that did not name ironworkers other than the Kisers With regard to this failure to call the Kisers back Taylor stated that he made no secret of the fact that he did not want Connie Kiser back as the foreman He went on to admit that he made no attempt to call either of the Kiser brothers back despite the fact that Hoss was not and never had been a foreman Taylor s determination not to rehire the Kiser brothers was remarked on by Larry Wayne Cook an electrical worker who worked for another contractor at the duPont plant Cook testified that he heard Taylor state to David Hughes a Millwright foreman that as long as Taylor was on the job the Kisers would not be back here Paul Roger white a pipefitter employed by Blount Brothers at the duPont plant testified that Taylor expressed to him his displeasure that the Kisers went to the International Council Gene Payne a carpenter for Blount Brothers at the Belle plant stated that Taylor said to him that they (meaning the Kisers) would not be back on the job as long as he was there Payne also testa feed about Taylor s concern with the carpenters for building scaffolds for other trades on the job a concern which turned to anger after Payne talked about the matter to one of duPont s engineers Taylor threatened that if Payne ever again went over Taylors head to duPont he would be fired Finally Delmar Blankenship called as a witness by Respondent testified that Taylor mentioned his problems with the Kisers when Blankenship was hired as foreman He told Blankenship of the incident that he had laid them off and he told me that he wasn t going to call them back and that if I wanted the job I could go up there presumably to the Belle plant On the basis of all this there is no question in my mind that Taylor resented being questioned about his de cision to award the powerhouse work to the Sheet Metal Workers If he had any agreement with anyone about this work it was with Wilson Tood the Sheet Metal Workers business agent Neither Taylor nor anyone else testified that the Kisers were informed about this agree ment Indeed according to Todd s credible and undenied testimony the agreement was not made until sometime after the work to be performed was begun by the Iron Workers thus contradicting Taylor s assertion that the agreement had been worked out before the work began Payne s testimony about Taylor s anger when Payne went over Taylors head to speak to the duPont engi neer is consistent with Taylor s admitted anger at Connie Kiser for standing up for the Union on August 22 The further testimony of Cook and White shows that Taylor s anger and resentment extended to both Kisers making it clear that his concern was not the superintend ent foreman problem 8 but was the fact that they ques tioned his decision and complained about that decision to the Union Finally Taylor s own testimony does not seriously contradict the thesis that he resented the Kisers for com plaining to the Union about his decision and that he de termined not to call them back 8 The testimony of Blan kenship is clear and credible He was told in no uncer tarn terms that if he wanted to be the Iron Workers foreman at the duPont plant10 he Blankenship could honor and respect Taylor s problems with the Kisers and his determination not to call them back Therefore I find that the Respondent acting through its agent Morris Taylor failed and refused to recall its employees William C Connie Kiser and Warden H Hoss Kiser to their previous jobs at the duPont plant at Belle West Virginia because they supported or assist ed the Union in violation of Section 8(a)(1) and (3) of the Act Interboro Contractors 157 NLRB 1295 (1966) 11 IV THE REMEDY Having found that the Respondent has violated Sec tion 8(a)(1) and (3) of the Act I shall recommend that it cease and desist therefrom and that it take certain of firmative action designed to effectuate the policies of the Act Specifically I shall recommend that the Respondent offer to William C Kiser and Warden H Kiser immedi ate reinstatement to their former positions or if those po sitions are no longer available to substantially equivalent positions with no loss of seniority or other benefits and make them whole for the discrimination suffered by them by the payment to them of backpay together with interest thereon to be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) and New Horizons for the Retarded 283 NLRB 1173 (1987) 12 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 8 Which as I noted on the record at hearing does create management problems 8 The Respondent s theory as set out in its brief would seem to say that employees are not free to complain about management decisions and that the filing of a grievance which is denied is not protected concerted activity I do not find any authority for this theory 10 The testimony of the Kisers shows that this position was a full time job free from the concerns of the availability of work and the prospect of frequent layoff 1 Any concerted activity that the Kisers may have participated in here is inseparable in my opinion from their union activity Therefore I do not find an independent violation of Sec 8(a)(1) 2 See generally Isis Plumbing Co 138 NLRB 716 (1962) 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By failing and refusing to recall employees William Kiser and Warden Kiser the Respondent has violated Section 8(a)(1) and (3) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed13 ORDER The Respondent Blount Brothers Corporation Belle West Virginia its officers agents successors and as signs shall 1 Cease and desist from (a) Refusing to recall its employees because they en gaged in activities on behalf of the Union (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer William C Kiser and Warden H Kiser im mediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent po sitions without prejudice to their seniority or any other 13 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 rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its facility in Belle West Virginia copies of the attached notice marked Appendix 14 Copies of the notice on forms provided by the Regional Director for Region 17 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately on receipt and maintained for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 14 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board