Service Machine & Shipbuilding Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Machine & Shipbuilding Corp. and Nathan- iel Buggage, Sr. Case 15-CA-7429 December 8, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS PENI.I.-O ANI) ZIMMERMAN On July 22, 1980, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. On August 8, 1980, he issued an Erratum. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision and a brief in opposition to Respondent's 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 conclusions2 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Service Ma- chine & Shipbuilding Corp; Franklin, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standurd Dry Wall Producert Inc., 91 N.RB 544 (1950). enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In agreeing with the Administrative Law Judge's conclusions herein, Member Penello does not rely on .Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), or on the other cases cited by the Administrative Law Judge in fn. 5 of his Decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with discharge because they engage in concerted activities which are protected under the Na- tional Labor Relations Act, as amended. WE WILL NOT discharge our employees be- cause they engage in concerted activities which are protected under the Act. WE WllL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. WE WILL offer Nathaniel Buggage, Sr., Frank Dorsey, Sr., McCullem Williams, Sr., and Thomas Coleman, Sr., immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously en- joyed. WE WIll. make Buggage, Dorsey, Williams, and Coleman whole for any loss of earnings they may have suffered as a result of our dis- crimination against them, with interest. SERVICE MACHINE & SHIPBUILDING CORP. DECISION STA IEMENr OF THE CASE J. PARGEN ROBIR SON, Administrative Law Judge: This case was heard on March 13, 1980, in Franklin, Louisiana. The charge was filed on September 21, 1979, and the complaint issued on October 24, 1979. The com- plaint alleges that Respondent threatened to discharge and discharged four employees, Nathaniel Buggage, Sr., Frank Dorsey, Sr., McCullem Williams, Sr., and Thomas Coleman, Sr., because they engaged in protected con- certed activities. Upon the entire record and from my observations of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I hereby make the following: FINDINCGS OF FACT A. The Evidence Respondent's business involves marine construction at its facility at Amelia, Louisiana.' Respondent, through its answer and a stipulation of fact which I ap- proved during the hearing, admitted all the complaint's commerce allega- tions. On that basis. including Respondent's admissions of the conclusion- ary allegations regarding its status as an employer, find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent alleged that a complaint had also been filed with the Occu- pational Safety and Health Administration I received in evidence OSHA's March 5, 1980,). letter to Respondent However, I do not consid- er a determination by OSHA binding, either legally or factually. in this controversy. See United States Stove Co., 245 NLRB 1402 (1979). 253 NLRB No. 88 628 StLRVICE MIACIINE & SIII'IPBUIIDIN(G CORP The basis of the instant controversy arose during the evening of September 19. 1979. On that date all of the alleged discriminatees were employed by Respondent as "welders." The normal work hours for the four alleged discrimin- atees ran from 6:30 a.m. to 5 p.m. The evidence shows that normal operations were shut down around 4:30 p.m., on September 19, due to rain. However, at that time Re- spondent had loaded a "platform " 2 onto a barge by use of railroad type rails. The platform had not been secured to the barge and Respondent feared that the platform could roll or slip off the barge in bad weather. Due to that concern Respondent requested volunteers to weld the platform to the barge. The four alleged discriminatees volunteered to work overtime. Additionally, there were four other welders. described as Vietnamese welders, and some other person- nel including fitters, that stayed over to work after the normal shift. The evidence reflected that the weather turned to rain or mist in the late afternoon. Apparently, the workers, including the alleged discriminatees, had not anticipated rain on September 19. The alleged discriminatees did not wear any equipment, such as rubber shoes. to work that morning in anticipation of rain. After the regular shift ended, the four alleged discri- minatees sought shelter from the rain, in a shack near the barge. However, Foreman Milton Duval came into the shack and directed the four out to the barge. On the barge the four sought shelter out of rain, under the plat- form's decks. After some of the fitters performed some preliminary work on the platform's braces, two of the alleged discri- minatees, Frank Dorsey and McCullem Williams, "tacked" one of the platform's braces in place. However, according to Dorsey and Williams, the rain became heavier as they finished the tacking of the brace and they stopped working before welding the brace in place. The General Counsel alleges that the alleged discri- minatees refused to weld because of the rain. Because of their refusal, Foreman Duval threatened the four with discharge and, upon their refusal to weld in the rain, they were discharged. Respondent, on the other hand, contends that the four walked off the job without justifi- cation. The factual disputes involve different versions of what happened as the alleged discriminatees refused to weld and what occurred later during conversations between them, Superintendent Rudy Thidodeaux, and Foreman Duval. Respondent contends that the alleged discrimina- tees were not justified in refusing to weld because the weather was not bad and the conditions were not unsafe. 2 The platfiorm, which was also referred to as a deck, is a large struc- ture which towers some 6 feet above the barge The platform is support- ed by four large pipe-type pillars which are in turn supported by cross- beams The platform includes two decks. The plaltform's lower deck is some 56 feet above the barge's deck The upper deck is near the lop ,of the platform Various pieces of equipment and structures are supported on the platform's two decks IS. Ba.si of the Rtiasul 7o Work I find the record evidence convincing that the four al- legcd discriminateces refused to continue working around 6:3() p., o September 19, because of the rain. Al- though Respondent argues that there was only a slight mist, I note that its own witnesses appeared to indicate that from time to time on the evening of the 19th the rain was heavy. Safety Director Jessie Crcssitone testi- fied, "1 believe around 7:(X) or so we had another shower . . . Foreman Duval admits that he was wet and that he should have had on a "slicker suit." Superintendent Thidodeaux testified: "And at the time they were putting their gear in the shack, it was raining kind of hard." As to the reason why the employees did not want to work in the rain, Dorsey testified that Thomas Coleman told Foreman Duval that he "would probably get sick or take pneumonia or get electrocuted .... McCullem Williams testified that after Foreman Duval told them to go home if they did not want to work, Thomas Coleman said, "I can't work in weather like this, give me my card .... " Thomas Coleman testified that he told Duval, "I can't work in the rain .... " Foreman Duval testified that the four alleged discri- minatees said that they were not going to work in the rain: that "if we get sick, Service Machine will not give us a penny . . . we got our family to look after .... " Therefore, I find that the alleged discriminatees re- fused to work because of the rain. One of the employees commented about the possibility of illness resulting from their working in the rain. I do not credit Frank Dorsey's testimony that Thomas Coleman mentioned the danger of electrocution, in view of neither Coleman nor Wil- liams recalling such comments. C. The Discharge According to testimony of the three alleged discrimin- atees that testified during the General Counsel's case-in- chief, upon their refusal to work in the rain, Foreman Duval told them to go home if they were not going to work. Safety Director Cressione confirmed the testimony of the General Counsel's witnesses, that Duval told the four to go home if they did not want to work. On the basis of the above testimony, which I credit,3 I find that Duval told the four employees to leave if they were not going to weld. As the four alleged discriminatees were leaving they encountered Superintendent Thidodeaux. Thidodeaux testified that after he had been informed of what oc- curred on the barge, he offered to put visqueen4 over the work areas. According to Thidodeaux the four did ' Even though Duval did nor testify to making such a comment, I do not credit that failure as an indication that the comment was not made Duval's testimony was, on occasion, inconsistent with established facts and probabilities oth he and Superintendent Thidcldeaux appeared to slant their testimony in an effort to mininmize the degree of rain that night To the extent their testimony conflicts with other evidence, I do riot credit them. I specifically discredit Dusal's testimony that Coleman said he was going to quit in View of Coleman's denial * Visqueen is a waterproof plastic sheeting 629 I)ECISIONS ()F NATIONAL LABOR RELA'IIONS BOARD not want to talk further about the matter. They said they were going home. Thidodeaux admitted telling the four that if they went home and left us in a hind, "I would have to terminate them and then replace them with some other welders." The evidence indicates that after the four alleged dis- criminatees left the job on the evening of September 19. Respondent built shelters of visqueen material over the welding areas. The four Vietnamese welders then com- pleted the job. However, I credit the testimony of the four alleged discriminatees that neither Thidodeaux nor Duval offered to shelter the area with visqueen prior to their leaving on September 19. On the basis of the above evidence, and the record as a whole, I find that the four alleged discriminatees were told to go home when they refused to work in the rain. Thereafter, they were confronted by Superintendent Thi- dodeaux and, upon confirming to him that they would not work in the rain, they were discharged. D. Determination In a situation similar to the instant case, the Board overruled an Administrative Law Judge and found a vio- lation in Union Boiler Company, 213 NLRB 818 (1974). In Union Boiler a violation was found where four em- ployees refused to continue working. The Board found that the evidence demonstrated that at least one of the reasons why the employees refused to continue working was their concern with unsafe working conditions. How- ever, the Board also stated a violation occurred even if the employees were primarily protesting the assignment of overtime rather than unsafe conditions. The instant record convinces me that the four employ- ees involved herein were concerned with safety and health on September 19. Although none of the employ- ees mentioned safety, the evidence demonstrates that one of the four, Thomas Coleman, mentioned to Foreman Duval that he was concerned with illness. However, all the persons involved, including Supervisors Duval and Thidodeaux, were aware that the electrical wire leading into the welding machine (which was situated on the deck of the barge), carried 440 volts. Although Respond- ent attempted to elicit testimony from Thidodeaux and Duval to the effect that the welding equipment which the welders handled did not involve the danger of con- tact with the 440 volts, that effort was generally unsuc- cessful. Although Duval and Thidodeaux testified that the welders may receive only minor shock, both demon- strated from their testimony that they were unaware of the size of the charge to which the welders could be ex- posed. The welders also demonstrated, by their testimo- ny, fear of a major electrical shock. Additionally, Respondent's safety director admitted that welding could be dangerous in the direct rain. Testi- mony demonstrated that welders felt the danger inherent in welding in the rain was so apparent that a comment in that regard to supervisors was unnecessary. Therefore, I am convinced that one of the concerns which caused the four employees to refuse to weld in the rain was their fear of injury. Moreover, from my reading of the Board's cases, the finding that employees' concern that conditions may be unsafe is unnecessary in the instant case to a determina- tion that a violation occurred. Certainly, if we were concerned with the actions of a single employee then the matter of unsafe conditions may be relevant to the question of whether one employ- ee was involved in concerted activities.' Here, however, we have four employees involved in the refusal to work. Although the evidence does not reveal that the employ- ees planned their action in refusing to work, the evidence does show a simultaneous and, apparently, spontaneous reaction by all four against working in the rain. The four thereafter acted together in refusing the demand of Fore- man Duval that they commence welding. Under those circumstances, I have no doubt and I find that they were engaged in concerted activity.6 I also find that the four were discharged on September 19. When they refused Duval's directive to weld, Duval told them to go home. As they were leaving, Superin- tendent Thidodeaux learned from Duval what had oc- curred. At that time Thidodeaux told the employees that they would he terminated if they left. Therefore, I find the employees were presented with an ultimatum of work or be fired. When the employees persisted, they were discharged. E. The 8(a)(1) Allegation I find, in agreement with the General Counsel, that when Foreman Duval told Buggage, Dorsey, Williams, and Coleman, on the evening of September 19 to go home if they were not going to weld, he was threatening the employees with discharge for engaging in protected activity. I make this determination in view of my find- ings above. CONCIUSIONS OF LAW 1. Respondent, Service Machine & Shipbuilding Corp., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening its employees with discharge because they engaged in protected concerted activities, Respond- ent has violated Section 8(a)(1) of the Act. 3. By discharging its employees Nathaniel Buggage, Sr., Frank Dorsey, Sr., McCullem Williams, Sr., and Thomas Coleman, Sr., because they engaged in protected concerted activities, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist B & P Motor Express, 230 NLRB 653 (1977); Roadway Express, Inc., 217 NLRB 278 (1975); Alleluia Cushion Co.. Inc., 221 NLRB 999 (1975); T& 7 Industries. Inc., 235 NLRB 517 (1978). e Hintze Contracting Company. Inc.. 236 NLRB 45 (1978); Richboro Community Mental Health Council Inc., 242 NLRB 1267 (1979), and Magna Visual. 213 NLRB 162 (1974). SERVICE MACHINE & SIPBUILDIINi CO()RI' therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully dis- charged Nathaniel uggage, Sr., Frank Dorsey, Sr., McCullem Williams, Sr., and Thomas Coleman, Sr., I shall recommend that Respondent he ordered to offer those employees 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 other rights and privileges. I shall further recommend that Respondent he ordered to make Bug- gage, Dorsey, Williams, and Coleman whole for any losses of earnings they may have suffered as a result of the discrimination against them. Backpay shall he com- puted with interest as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 51 (1977). 7 Upon the fregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 1((c) of the Act, I hereby issue the following recommended: ORDER The Respondent, Service Machine & Shipbuilding Corp., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening its employees with discharge because they engage in protected concerted activity. (b) Discharging its employees because of its employ- ees' protected concerted activity. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 7 See, generally, sis Plumbing & ll/uting (C.., IX NI.RB 716 (1962l " In the event no exceptlions are filed .as provided hb Se, 11)2 46 of the Riules and Regulation, of the Nalional .ahbor Relaiins HBoard. he finld- ligs, 'onlulsiolS, idIl reonlnlelldedt ()rtler hereill shall. a prosidcdi in Sec 102 4 of the Rules and Regulations,. he adopted h (fie toI(ard illd become i findings. cinclusiions, and Order. and ll obhectiolls thcreto shall he deemnedt .alived for all prpioses 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Nathaniel Buggage, Sr., Frank Dorsey, Sr.. McCullem Williams, Sr.. and Thomas Coleman. Sr.. 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 other rights and privileges. Make whole uggage, l)orscy, Williams, and Coleman, fr any loss of earnings suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (h) Preserve and. upon request, make available to the Board or its agents, for examination and copying, all payroll records. social security payment records, time- cards, personnel records and reports. and all other re- cords necessary to analyze the amount of hackpay due under the terms of this Order. (c) Post at its Amelia. Louisiana, facility copies of the attached notice marked "Appendix. " ' Copies of said notice, on forms provided by the Regional L)irector for Region 15, after being duly signed by Responldent's au- thorized representative, shall he posted by Respondent immediately upon receipt thereof, and be maintained by it for h() consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional [)irector for Region 15, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith E In the venl that Ihi, ()rlcr is enfrrctd by a Jdgnmenl of a Lnll ed State, Court of Appa;ll, thtr o "ord ill the ilillice reading "Posted by Ordter of thte Naiional l.habor Rclalion, Board" shall read "Pisied Prsu I[ll 1i 1 .t .idgnil'ilt f he trnIl el SNalle ('our of Appeals F[nfor iig in ()rdcr if Ihe N;alional l.abor Relatlion, Board" hI31