Austin Co.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 386 (N.L.R.B. 1994)

386
315 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and Charging Party Painters have excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing
the findings.
1 The Union’s unopposed motion to correct transcript is granted.
The Austin Company and Kevin Todd and James
Blake and Charles Shelton and John Ford and
Gary Sorter and Steve Johnson and Painters
District Council #5, International Brotherhood
of Painters & Allied Trades, AFL–CIO. Cases
19–CA–22241, 19–CA–22243, 19–CA–22296,
19–CA–22308, 19–CA–22321, 19–CA–22343,
and 19–CA–22546
October 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 18, 1994, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, to
which the Charging Party, Painters District Council #5,
affiliated with International Brotherhood of Painters &
Allied Trades, AFL–CIO (Painters), joined, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Joan Abrevaya, Esq., for the General Counsel.
Frank Borda, Esq. and Jesse Etelson, Esq., of Silver Springs,
Maryland, for the Respondent.
Richard H. Roblee, Esq. (Hafer, Price, Rinehart & Roblee),
of Seattle, Washington, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Seattle, Washington, on December 7, 8, 9, and 10, 1993,
and January 11, 12, and 13, 1994. The charges were filed by
the various named individuals on various dates between Au-
gust 20 and October 16, 1992, and by Painters District Coun-
cil #5, International Brotherhood of Painters & Allied
Trades, AFL–CIO (the Union), on February 17, 1993. Var-
ious amended charges were also filed. On April 30, 1993, the
Regional Director for Region 19 of the National Labor Rela-
tions Board (the Board) issued a consolidated complaint and
notice of hearing alleging a violation by The Austin Com-
pany (Austin or the Respondent) of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel,
counsel for the Respondent, and counsel for the Union. Upon
the entire record,1 and based upon my observation of the wit-
nesses and consideration of the briefs submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Ohio corporation with an office and
place of business in Renton, Washington, and at the Boeing
Company’s Everett, Washington facility, where it has been
engaged in the business of designing, engineering, and con-
structing buildings for the Boeing Company. In the course
and conduct of its business operations the Respondent has
had annual gross sales of goods and services valued in ex-
cess of $500,000, and has purchased goods valued in excess
of $50,000 directly from suppliers outside the State of Wash-
ington. It is admitted, and I find, that the Respondent is now,
and at all times material herein has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether the Re-
spondent discharged the various charging parties in violation
of Section 8(a)(1) and (3) of the Act because they engaged
in union and protected concerted activity.
B. The Facts
1. Background
The Respondent was hired to construct a number of build-
ings for the Boeing Company in Everett, Washington, for the
manufacture of airplanes. The buildings are massive, many
times the size of a football field, totaling approximately a
million-and-a-half square feet, with 130-foot high ceilings.
This project has been continuing over several years. At peak
periods, the Respondent directly employed about 600 con-
struction workers on the project (including about 100 paint-
ers); the painters were hired out of the Union’s hiring hall
387AUSTIN CO.
2 All dates or time periods hereinafter are within 1992 unless oth-
erwise indicated.
and were represented by the Union herein. About 400 or 500
hundred additional employees worked at the site for various
subcontractors of the Respondent.
The instant case involves several painting crews, totaling
about 20 painters who worked on the second shift, which
began at 4 p.m. each day. Much of their work was performed
on or adjacent to the ‘‘rolling work platform’’ which is a
large wooden platform approximately 350 feet in length by
about 100 feet in width; the platform is about 100 feet off
the floor, and some 30 feet from the ceiling of the buildings.
This platform would be moved at about 10-day intervals to
an adjacent division of the building in accordance with a pre-
determined schedule. All of the work above the platform, in-
cluding the painting work, was to be essentially completed
by the time the platform was to move to the next division,
as it was time consuming and costly to go back and complete
work after the platform had been moved; thus, if the plat-
form was not positioned underneath the work to be done, the
workers would have to be raised 130 feet off the floor by
hydraulic lifts with limited mobility to perform such work,
instead of only some 30 feet above the rolling work plat-
form.
Various construction trades including carpenters, pipe-
fitters, steelworkers, operating engineers, electricians, me-
chanics, and laborers worked off the platform during the day,
and the painting of the area above and adjacent to the plat-
form was performed on the second shift, after the other con-
struction workers had left for the day. Much of the painting
was done from ‘‘swing stages’’ or ‘‘spider stages’’ which
contained two baskets connected by a platform from which
the painters would be able to reach the areas to be painted.
The swing stages, similar to the devices used by window
washers to raise and lower themselves on the outside of
buildings, were hung from the ceiling by cables, and could
be moved through the air by a procedure called jumping or
transferring which requires a considerable degree of skill;
painters who perform such work are referred to as ‘‘fliers’’
and sometimes as ‘‘spidermen.’’ The painters earned the
same hourly wage whether they were fliers or merely scraped
concrete off the stairwells in the tower.
The principal events herein took place on the second shift
in August and September 1992.2
From about December 1991 until sometime in July 1992,
the second-shift painters worked an unlimited number of
overtime hours in order to get the painting done within the
allotted time, working from 60 to 80 hours per week. This
changed in July, when Boeing instructed Austin to limit the
workweek of the second-shift painters, including overtime, to
60 hours. This 60-hour workweek was again reduced the fol-
lowing month when, in early August, a 40-hour workweek,
with no overtime, was established; and, in order to complete
the work prior to the scheduled moving of the platform, first-
and third-shift painters were utilized to perform work that the
second-shift painters had exclusively performed up to that
point.
Mike Cook was the Respondent’s second-shift general
painting foreman. Under him were two foremen, Jose Robles
and Brian Crowley. Generally, Robles was in charge of some
15 painters who worked off the rolling work platform, and
Crowley was in charge of about 5 painters who worked at
other locations principally within the ‘‘tower’’ sections of the
building which were in effect distinct multistoried structures;
the towers extended from the floor to the ceiling and, upon
completion, would be used for various purposes such as of-
fice space and, apparently, equipment and materials storage
areas.
2. Evidence presented by the General Counsel and
the Union
a. The alleged safety concerns
Kevin Todd and James Blake had worked on Robles’ crew
as journeymen painters since late December 1991, when the
second-shift interior painting work had begun; they worked
almost exclusively out of the swing stages and were experi-
enced fliers. They testified that Robles, Crowley, and Cook,
in an effort to increase production, would attempt to cause
the painters to forego established safety procedures. Thus,
the various foremen would ask men to ‘‘walk steel’’ without
being tied off to safety cables, or to do work without safety
harnesses, or to operate the Genie (hydraulic) lifts without
outriggers (stabilizers), or each time the platform was moved,
to erect the plastic containment curtain or tent around the
platform by walking steel without the proper safeguards in
order to pull the curtain up to the ceiling by means of ropes.
According to Todd and Blake, the men did bring these
matters to the attention of their foremen, but received no sat-
isfaction; further, they were reluctant to bring such matters
up to the Respondent’s safety department or to raise them
during regularly scheduled weekly ‘‘toolbox’’ or safety meet-
ings for fear of retaliation by the foremen. Thus, until some-
time in August when things became intolerable, the men did
what their foremen directed them to do, regardless of the
safety hazards; and the more experienced men such as Todd
and Blake would voluntarily walk steel without being tied
off and would perform other unsafe procedures in order to
protect the ‘‘greenhorns’’ from the possibility of serious in-
jury. At all times material herein the painters’ union steward,
Joseph Bailey, was working with the crew on the second
shift, and there is no evidence that the steward filed any
grievances on behalf of the employees regarding these mat-
ters.
Todd testified that many times in June and July and
‘‘throughout the whole job’’ he brought up these safety con-
cerns to his forman, Robles. He testified further as follows:
I have to say there were many times where I willingly
did break safety violations by request of Jose Robles
strictly to keep him from asking inexperienced men to
do any of it, for fear that they would hurt themselves
or somebody else. And I have had much experience at
this kind of work, so I would do the work that was the
more dangerous, myself and a few other people. Jim
Blake, Charles Zuehlsdorff, we’ve had lots of experi-
ence on high steel.
Steve Johnson, another flier, testified that he had similar
safety concerns:
There was some—there were fellows who were walking
steel without being tied off. It was the sort of situation
where it looked like—most of the hands that were
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The written complaints, for the most part, were simply reiter-
ations of the complaints that Todd had verbally presented to Toole.
doing the walking of the steel at those times were the
fellows who were very comfortable with doing it. And
it was like management sort of turned their backs be-
cause it got things done faster. And if the guys were
willing to do it and seemed comfortable up there, it was
sort of ignored. Now, it was understood that was not
supposed to happen; but it also was ignored.
Johnson testified that Robles would observe such safety vio-
lations going but, in an effort to get the work done faster,
would not instruct the men to adhere to the safety require-
ments. Finally, according to Johnson, the men complained to
‘‘safety’’ (Austin’s onsite safety department), as they were
not getting any satisfaction from Foremen Cook or Robles.
Todd testified that there was a safety meeting every Mon-
day, and that every type of safety issue would be covered
at these meetings, as follows:
Every kind of issue: proper protective clothing to wear;
the proper things to do and not to do in JLG’s (hydrau-
lic lifts) or spider stages, respiratory equipment was re-
quired, or everything that pertains to the job. It’s al-
ways different every week so that you don’t get hung
up on the same thing.
However, according to Todd, after the safety meetings the
rules were not enforced:
I can give many examples. They would have safety
meetings on tying off—you’re always supposed to be
tied off; you’re supposed [to tie] to something above
you; and you’re not supposed to work above six feet
above the ground or from the platform or from the edge
of the platform without being tied off at all times; you
are always supposed to wear safety glasses and res-
pirators—and as soon as the meeting was over, the
rules didn’t apply.
What applied was production. Production applied,
and that was basically it. There was many times the
rules were broken. And there was, on several occasions,
times where Mike Cook, Jose Robles or Brian Crowley
would come up and say to us personally, ‘‘Safety [engi-
neers] will be up later; make sure you’re doing every-
thing the proper way.’’
When ‘‘safety’’ was not present, according to Todd, things
were done differently: the men worked without being tied
off, they did not wear respirators or hard hats or safety glass-
es as they were required to do; they smoked inside the con-
tainment tent. Todd testified that ‘‘half the people hardly
wore safety glasses or hard hats. Sometimes they didn’t wear
safety belts. A lot of times guys wore tennis shoes when you
weren’t supposed to.’’
b. The complaints to management
Toward the end of July, when it was announced that there
would be no more overtime, Cook told the men that he
would be forced to terminate them if production did not in-
crease. During the second week in August, according to
Todd, the men started to ‘‘whine over the dinner table.’’
Thus, the men would complain during the dinner break that
they were tired of being asked by foremen to do this or that.
Many of their complaints had to do with safety violations.
At one such meeting, attended by painters Todd, Blake,
Steve Johnson, Gary Sorter, Gary Johnson, and Union Stew-
ard Joe Bailey, Todd said that he would go to the safety de-
partment with the painters’ concerns. Thereupon, on August
13, he approached Safety Engineer Russ Evans and said that
he had some safety concerns that he wanted to bring to the
attention of the safety department. Evans, according to Todd,
said that he was very interested and encouraged Todd to
present his concerns. He invited Todd to come to the safety
department the following day to speak with Brenda Toole,
the Respondent’s controls manager.
Todd testified that he met with Controls Manager Toole
on August 14, and presented all the complaints of the paint-
ers: inexperienced men being required to do work they were
not qualified to do; men being asked to overlook blatant
safety violations, like walking steel without being tied off,
using Genie lifts without outriggers, and working without
proper safety equipment. Toole asked Todd to write down
his concerns and to have the other painters write down their
concerns and bring them to her. Todd met with the men and
told him that he had met with Toole and that she wanted
their complaints in writing; according to Todd, they were
willing to put their concerns in writing but would not sign
their names for fear of retaliation. On Monday, August 17,
Todd presented the written concerns to Toole.3 Toole said
she would evaluate them and give them to James Peterson,
the Respondent’s vice president in charge of the overall
project.
The next day, August 18, Todd told Safety Engineer Evans
that ‘‘attitudes were what we considered high and tense’’;
that management had a different attitude and were watching
the men and were watching Todd very closely. He asked
Evans if Cook had found out about his safety complaints.
Evans acknowledged, according to Todd, that someone had
made Cook aware that certain complaints had been made to
the safety department, but that Todd had not been identified
as the complainant. Todd testified that on that day, August
18, he observed Safety Engineer Evans and Controls Man-
ager Toole walking through the job unannounced in order to
observe what was going on; according to Todd, such inspec-
tions had not even been announced to Cook in advance.
On August 19, he again met with Toole. He asked her
what was being done about the safety concerns, as ‘‘there
was a lot of tension on the job during our shift that you
could feel.’’ According to Todd, ‘‘the foremen were pushing
a lot harder; they were watching harder; and they were doing
whatever they could do to get the job to speed up and get
the work done.’’ Todd told Toole that he ‘‘wanted the unfair
management run off the job.’’ Further, he wanted ‘‘safety’’
to start policing the job and requested , if necessary, that a
safety engineer remain there throughout the whole shift so
the men could do their work safely and without all the har-
assment. He told Toole that he would go to OSHA and
WSHA (the Washington State counterpart of OSHA), that he
would file a grievance with the Union; that he would go to
the Boeing safety department, to the newspaper, and even to
the paint manufacturer to let them know that the paint was
not being applied according to specifications. Todd testified
that his purpose in threatening to take such action constituted
389AUSTIN CO.
4 In this regard, Todd testified that it was beneath him to clean the
steel, as he was an ‘‘artist’’ who should just be required to paint
it.
5 Toeboards are wooden planks running along the lower perimeter
of the swing stages, and are for the purpose of preventing tools and
materials from sliding off the stages and perhaps injuring workers
below.
a ‘‘grab for any attention’’ in order to get the matters out
in the open. Toole asked Todd to give her time to investigate
the matters; thereafter, if he felt they were not being properly
addressed by the safety department, he could take his con-
cerns to whomever he wanted.
Further, Toole told Todd that she had recently given Cook
a handful of blank safety citations and had advised him that
he had better begin issuing citations to painters who were
breaking the safety rules. She also told Cook, according to
Todd, that if a safety citation was appealed by a painter and
it was found that a supervisor had told the painter to break
a safety rule, then the supervisors would be written up. Fi-
nally, Toole told Todd to be careful and watch out for him-
self.
c. The reassignment of Todd and Blake
Todd got to work somewhat late the afternoon of August
19, because of his meeting with Toole, and when he got off
the elevator on the sixth floor, Cook was standing on the cat-
walk. He looked at his watch and said that Todd was late.
Todd said that he had been in Toole’s office, and that Cook
could verify this if he wanted to. Todd then began helping
another painter on the platform. A short time later Cook
issued him a safety citation for not wearing his safety glass-
es. According to Todd, he had inadvertently left his safety
glasses in Toole’s office.
After receiving the citation and obtaining other safety
glasses, he reported to Robles for work. Robles told him that
he and Blake would no longer be fliers, but rather would be
put to work down on the platform where they would be
working off ladders prepping steel for painting. Todd asked
Robles why he was being moved from his job as a flier, and
Robles said that he did not have to explain the reason for
his work assignments. Todd and Blake were replaced by in-
experienced fliers. Prepping steel, according to Todd, was for
‘‘greenhorns.’’
That night Cook held a crew meeting with the painters.
Todd had excused himself from the meeting to go to the rest-
room, which is six floors below the rolling platform, and
missed the meeting. Foremen Cook and Crowley stopped
Todd as he was returning from the restroom, and Cook told
him that if production did not pick up he would have no
choice but to terminate Todd and the rest of the painters.
Todd asked Cook why he had been moved from the swing
stage and had been assigned the job of prepping steel, and
Cook said that he did not have to explain ‘‘shit’’ to him and
that he should just do what he was told or he would be
fired.4
Todd apparently began prepping steel about 8 feet above
the platform. However, observing that the swing stage di-
rectly above him had no toeboards,5 he refused to work any
longer as he was concerned about something falling off the
stage and injuring him. Blake had the same concerns. Ac-
cording to Todd, three of the four swing stages had
toeboards missing. Todd left the platform and went to the
safety engineer’s office to report the matter and also to call
his business agent to report that he was being treated unfairly
on the job. A safety engineer told the three swing stages to
report to the platform, and advised the foremen that no fur-
ther work was to be done until toeboards were installed.
Thereupon, Crowley made toeboards for each of the swing
stages, and told the men to get back to work. This took about
15 to 20 minutes per stage.
On August 20, Todd met with Toole to advise her of the
harassment toward him and a couple of other painters. An-
other safety engineer was in the office. Toole asked if she
could invite Richard White, the general project superintend-
ent and her direct supervisor, into the meeting. Todd said
that this would be fine. Also, at some point, Blake and Steve
Johnson came into the room. Todd explained what was hap-
pening on the job, namely, that his removal from his regular
job as a flier was punitive, in retaliation for complaining to
the safety department. Todd said that he was being watched,
and was in fear of losing his job. Apparently, Todd, Blake,
and Johnson said that they were going to file grievances with
the Union, and Johnson volunteered that Todd had already
filed charges with the NLRB. General Superintendent White
told Todd that there was nothing he could do about the
change in his work assignment, and that he would have to
investigate the matter. He told the men that there would be
no more harassment or threats, and that safety violations
would not be tolerated, and that the men should report to
work and they would be hearing from him.
When Todd and Blake reported to the platform to go to
work, Robles told them that they had been moved off the
platform and assigned to Crowley’s tower crew; they were
to get their lunch and tools and report to Crowley. Crowley
gave Todd and Blake new job assignments: he escorted them
to individual stairwells in the tower, six floors below the
platform and away from each other, and told them to clean
the splattered concrete from the steel in preparation for paint-
ing. Todd said that this job was ‘‘bullshit.’’ Todd had his
scraper tool with him and began scraping concrete; Blake
said he did not have his tool with him, and Crowley brought
him a makeshift tool, an angle iron, that he apparently found
on the floor.
Todd worked for a few minutes and was becoming more
and more aggravated about the situation. He finally decided
that his being required to prep steel in the stairwells was the
last straw, and went to Night-Shift Superintendent Gary
Elrod’s office; Cook reported to Elrod. Crowley happened to
be outside Elrod’s office, and asked Todd what he wanted
to see Elrod about. Todd walked right passed him and en-
tered Elrod’s office. Blake, Cook, and Elrod were already in
the office. Todd voiced his various complaints, and said he
was filing a grievance and a charge with the NLRB, and was
not going to do the assigned work. Elrod said that Todd had
been moved for reasons relating to production, that produc-
tion was being served by his being moved, and that ‘‘safety
was not an issue.’’
d. The discharge of Todd
After the meeting in Superintendent Elrod’s office, Todd
reported back to his assigned stairwell. At the break he and
Blake were intending to go the gate to meet Business Agent
Kesinger whom they had apparently called from Elrod’s of-
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fice. As they were waiting for Kesinger at the gate, Cook ap-
proached them and told them to get back to work, and said
that he would bring Kesinger to them. Todd went back to
the stairwell, and later Kesinger came to see him. After some
discussion, Kesinger said that he would continue talking to
Cook about the matter to see what could be done. According
to Todd, Crowley continued to harass him whenever he
stopped working and, when he stopped to smoke a cigarette,
Crowley told him to get back to work or he would be forced
to terminate him. Todd refused, replying that he would im-
mediately go back to work only as a flier, the job he was
hired for; but that he would not continue scraping the stair-
wells until he heard from Cook or Kesinger. At that point
Crowley terminated Todd and escorted him off the property.
Todd testified that the only prior warnings he had received
on the job were the two warnings from Cook: the one safety
citation for working without his safety glasses, and the warn-
ing when Cook told Todd and all of the other painters that
if production did not pick up they would be terminated.
e. The testimony of Blake regarding the foregoing
events; the discharge of Blake
James Blake testified similarly to Todd regarding the var-
ious safety violations and the foremen’s general disregard of
the painters’ safety concerns. Blake testified that in early Au-
gust the painters, together with their shop steward, were per-
mitted by Cook to hold a meeting in the job shack. Cook
was in agreement that the men should have such a meeting
amongst themselves, which was for the purpose of discussing
their difficulties on the job. Blake explained:
We brought up the morale. It was so down that it was
the type of job that you didn’t want to wake up and
go to work the next day. It got so bad that everybody
felt that way. Being put in unsafe acts, that was getting
real tiresome. It was not a fun place to work any more.
Blake denied that there was talk of a production slowdown
at the meeting. After the crew meeting, Blake, Todd, and
Bailey met with Foremen Cook, Robles, and Crowley, and
discussed their concerns: safety, the morale of the men, being
pushed too hard by the foremen, and not being issued clean
overalls in a timely manner. Blake testified that production
was also discussed, and that the men were trying to impress
on the foremen their belief that, ‘‘[i]f you guys would lighten
up on the [crew] and make this a more enjoyable place to
come to work, production will pick up.’’ According to Blake,
Cook was in agreement with everything they suggested, and
was ‘‘very humble’’ about it; he testified that, ‘‘[t]hey [the
foremen] were in agreement, we were in agreement, every-
body felt good.’’ However, according to Blake, this only
lasted about a week or so, as thereafter the foremen again
began pushing them and failed to address their safety com-
plaints.
Blake testified that on August 18, he had a conversation
with Cook, who stopped him on the catwalk and asked him
why safety was such a big concern with the men; he also
inquired who was ‘‘going to safety.’’ Blake told him that he
didn’t know, and added that the concern with safety is that
‘‘you guys are bucking production so hard that safety has be-
come second.’’ Cook said that Blake knew better than that,
and got disgusted with him and walked off.
Also, according to Blake, Cook had a meeting with the
crew that night. He talked about production and in ‘‘plain
and simple’’ language said that if production did not pick up
everybody would be fired.
Blake testified that prior to August, he and his swing stage
partner, Steve Johnson, would occasionally be assigned the
job of prepping steel and cleaning off dirt and rust while
other painters were flying.
On the evening of August 20, after Blake and Todd had
been assigned to prep steel on the platform, they again com-
plained to Controls Manager Toole. General Superintendent
Richard White was present at the meeting. Blake’s testimony
regarding this meeting is similar to the testimony of Todd.
White told both of them not to worry about being harassed
or fired and to give him 2 days to take care of the situation.
They told White that they intended to file grievances and
NLRB charges, and White said that, ‘‘[y]ou guys have got
to do what you have got to do,’’ but requested that they per-
form the work they had been assigned until he had checked
out the matter and had gotten back to them. When they re-
turned to work they were transferred to Crowley’s crew, and
were given the job of prepping steel in the stairwells at a lo-
cation a block or so away from the other painters. Blake told
Crowley that his tools had been stolen and he did not have
them, and Crowley gave him a piece of angle iron he had
picked up off the floor to use as a scraper.
After a short time, Blake went to where Todd was
prepping steel and said that he could not take this type of
treatment any longer; he told Todd to tell Crowley that he
had gone to call the business agent. Blake went to the safety
office and Toole permitted him to use the phone to call
Kesinger. Kesinger instructed Blake and Todd to meet him
at a particular gate. When Blake returned to where Todd was
working, Crowley told him to get back to work. Blake re-
plied that he and Todd were supposed to meet the business
agent at the gate. Crowley got on the radio to Cook and said
that Blake was refusing to work. Blake said he was not re-
fusing to work, and that he would go to work after speaking
with his business agent. Thereupon, Crowley brought him to
Cook’s office. Elrod was also present. There was some dis-
cussion about Blake not having his tools with him. Elrod
said something to the effect that Blake was a troublemaker;
Blake inquired whether it was because he got ‘‘safety’’ in-
volved in the painters’ complaints, and Elrod said no, that it
was because they were slowing down production. Blake left
the trailer and Crowley, who had pulled up in a truck, told
Blake to go back to the stairwell and chip concrete. Blake
refused, saying that he would go back to work after he met
with Kesinger. Crowley got on the radio again and reported
that Blake was refusing to work, and that he intended to fire
Blake. Blake said that Crowley could not fire him as he was
not his regular foreman. At that point Crowley fired him, and
he was escorted out the gate. Crowley told him he was being
fired for insubordination.
The next day Blake called White and told him he had been
fired. White said that he was very sorry to hear that. Blake
reminded him of the conversation the day before about there
being no more harassment or anything of that nature; and
White said it was out of his hands, that Blake had been fired
by Vice President Jim Peterson. Blake disputed this, saying
that he had been fired by Crowley. White said no, he had
been fired by Peterson.
391AUSTIN CO.
f. The testimony of Business Representative Kesinger
regarding the discharges of Todd and Blake
Business Representative Kessinger testified that on August
20, when he came out to the jobsite in response to Blake’s
call, he met with Cook. Cook told him that Blake and Todd
had been assigned to scrape paint in the stairwells because
‘‘they were slowing down their crew and that they were rais-
ing hell on the job site with the crew up above.’’ Kesinger
was permitted to investigate Cook’s allegations by being al-
lowed to randomly talk to the painters on the platform; they
told him that they did not know anything about a slowdown,
or ‘‘going after’’ a foreman or anything like that. After Todd
and Blake had been fired for refusing to perform their as-
signed task, Cook told Kesinger that both men were going
to be laid off at the end of the shift anyway.
Kesinger testified that at a grievance meeting on August
24, Rich White said that Crowley did not fire Blake, but
rather that Jim Peterson had fired him before the shift start-
ed, and there was nothing he could do about the grievance
at that step. At another grievance meeting on September 2,
Elrod, the night superintendent, told Kesinger he had made
the determination to fire Todd and Blake because he had dis-
cretely monitored their work on the platform and observed
that they were trying to coerce the other members of the
crew to slow down.
g. The caution tape incident; the knife incident
Employee Charles Shelton testified that on Friday, Sep-
tember 11, Crowley had asked him and John Ford to cross
a caution tape to paint some pipe. According to Shelton, the
area where Crowley wanted them to work was ‘‘unreal.’’
Shelton testified that he ‘‘ignored’’ Crowley’s instructions,
because he didn’t want to do that particular job. Later that
evening Crowley came back up on the tower and wanted to
know why the pipe had not been painted. Thereupon, Shelton
immediately went to get Union Steward Bailey to inspect the
assigned work area. Crowley advised Bailey that the area
was safe and that a ‘‘safety person’’ had given permission
to cross the caution tape and paint the pipes. Bailey appar-
ently gave his okay and then Shelton and Ford proceeded to
paint the pipes as originally instructed by Crowley. Shelton
testified that he did not tell Crowley that he was refusing to
do the job because he felt it was unsafe; apparently, he just
ignored Crowley’s instruction.
Shelton said that immediately after the toolbox meeting on
Monday, September 14, he overheard Crowley ask Ford if he
was going to file a grievance against him about the caution
tape incident. Ford, according to Shelton, said he was going
to do what he thought was right. Then Crowley asked
Shelton the same thing. Shelton replied, ‘‘Brian, let’s just
forget about it.’’ Then Crowley asked again, saying, ‘‘Are
you going to file a charge against me, god damn it?’’
Shelton heard a ‘‘click,’’ and saw that Crowley was holding
a knife in his hand. Shelton walked away, and the next thing
that happened was that, according to Shelton, ‘‘I had went
down to the work box to get my equipment to go to work,
and I told John Ford what had happened, and John ford had
told Steve Johnson.’’ Immediately thereafter, according to
Shelton, ‘‘I got my equipment; I went back up there; and I
went to work. Then after lunch they called me down to Mike
Cook’s office and asked me what happened.’’ Asked whether
he talked to any employees other than Ford before he was
called into Cook’s office, Shelton answered, ‘‘Not that I can
recall.’’ Thus, from the scenario testified to by Shelton, it ap-
pears that Ford related the incident to Steve Johnson, who
in turn advised Bailey.
Shelton did not testify that he had intended to do anything
about the alleged knife incident.
Later that night, Shelton was called into Cook’s office.
Bailey and Crowley were present. Shelton was asked to re-
late what had happened. Crowley denied that he had threat-
ened Shelton with a knife, and added, according to Shelton,
he would not hurt Shelton because he was the best worker
he had. Shelton testified that he has always gotten along well
with Crowley.
Thereafter, Shelton was assigned to work the day shift in
order to keep him away from Crowley. He was terminated
several days later, infra, because, according to Jim Alger,
who became swing-shift superintendent on August 31, he
was a troublemaker.
John Ford testified to the incident regarding the caution
tape. After the Monday toolbox meeting at which the types
of caution tapes were discussed, Crowley happened to stop
him and ask if Ford was going to file a grievance against
him. Ford said that he was not even thinking about it. Short-
ly thereafter, Shelton told Ford that Crowley had asked him
whether he was going to file a grievance against him, and
said ‘‘something about he was going to stab him if he was
going to file a grievance against him.’’ On September 17,
Ford was made a shop steward; Shelton was also made a
steward. Also on that date Fore filed a grievance over being
reprimand by Crowley for seeking guidance from Shop
Steward Bailey about crossing the safety tape. On September
18, Cook handed Ford and Shelton termination notices, infra.
Crowley said that they were laid off because ‘‘Austin was
tired of this stuff.’’ His termination notice states that he was
fired for ‘‘willful misconduct on the job.’’
Shop Steward Joe Bailey testified that on Friday, Septem-
ber 11, Crowley admonished him over the caution tape inci-
dent. Crowley told Bailey that it was Crowley’s job to in-
struct the men, that Bailey was not to have anything to do
with it, and that he should not bother his men when he tells
them to do something. Crowley repeated this to Bailey on
Monday; according to Bailey, Crowley was abusive and it
was ‘‘aggravating’’ the way he was speaking to Bailey. On
At the toolbox meeting on Monday, September 14, the dif-
ference between the yellow caution tape and the red ‘‘Do
Not Enter’’ tape was discussed. The men were told not to
proceed through ‘‘Do Not Enter’’ ribbons.
Bailey asked Cook why Shelton and Ford had been rep-
rimanded by Crowley, who had ‘‘chewed them out’’ for
coming to see Bailey. Bailey did not recall what Cook said.
He discussed another issue with Cook, apparently at the
same time, as follows:
I was told that Brian [Crowley] offered a guy $200 to
lie about me to get me fired, to have me say that there
was a work slowdown, because if I tell [the men] to
slow down, it’s a breach of the contract. But no way
did I say that.
Also on Monday, Shelton told Bailey that Crowley had
just pulled a knife on him. Bailey testified that Shelton said:
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He [Crowley] pulled a knife on me. . . . he walked up
to me, and he said ‘I’m in trouble with the NLRB be-
cause there’s a grievance you guys are going to file.’
And he said that he stood back in a threatening manner
with an open blade with him—at him.
Bailey reported this to Cook, and Cook immediately sum-
moned Crowley to a meeting in Cook’s office. Also, Shop
Steward Myron Peterson was present. Bailey said in a polite
way that he was not insinuating anything, but that he had
been told by Shelton that Crowley had pulled a knife on him.
Crowley began swearing at Bailey, and said, ‘‘I’ll kick your
ass,’’ and repeated that he would take Bailey in the parking
lot and kick his ass. Cook ended the meeting after the two
began arguing. Later, Boeing security arrived and, according
to Bailey, ‘‘with a bullhorn and lights a-going they were
hunting for a guy with a knife.’’ Bailey later learned that
Steve Johnson had called Boeing security.
h. Additional testimony by Bailey
In addition to the foregoing testimony by Bailey, he testi-
fied that as shop steward he was to get permission from the
foremen in the event the painters had a work-related matter
that required his attention. He spoke with Cook regarding a
number of complaints. Initially, the complaints concerned
lack of proper ventilation. Later, he discussed other safety
matters with Cook.
Bailey testified that at a crew meeting in early August,
when Cook was ‘‘getting in trouble’’ for lack of production
by the crew, the following was discussed:
That we didn’t need so much supervision, kind of bird
dogging by the foremen just standing there watching us
al night, you know, instead of having to do something
else. They would always just stand there and watch us,
you know. And, you know, you don’t need any pres-
sure when you are doing this type of work . . . we
would help them all we could by trying to police our-
selves and making sure that everybody pulled their own
weight. You know, if we seen somebody that wasn’t
pulling their own weight, that we would take care of
it for them.
As a result of this meeting, Bailey, Todd, and Blake pre-
sented the painters’ proposal to the foremen, and they agreed
to it. Thereafter, the work proceeded to be performed in a
timely manner without any problems, but this did not last
long.
Bailey reported to Cook that painters were not properly
using their safety lines, and Cook told him that the men
should not be doing that.
Bailey did not testify to any conversation with Johnson re-
garding the knife incident. He did not even know that John-
son was the person who called Boeing security.
Bailey was ill and not at work from approximately August
14 to 21. Apparently, according to the testimony of Toole,
he had been hospitalized for a heart condition. Prior to this
time he was spraying catwalks from the rolling work plat-
form. After August 21, when he returned to work, he was
assigned to work in the stairwells where he was to ‘‘scrape
concrete; scrape paint; sweep; get it all clean.’’ Customarily,
when such work was done, the whole crew would be as-
signed to do it. However, Bailey was working alone. Upon
completing this work, he was assigned to prepare drywall
and sand concrete ceilings in the bathrooms; he had to wear
a respirator for some of this work. This work lasted a week
or two. Bailey did not state what his work assignments were
following this 2-week period.
On September 18, James G. Peterson, vice president and
program manager of the Respondent, sent Kesinger the fol-
lowing letter regarding Bailey:
During the last several weeks, Mr. Bailey has been
interfering with Austin’s foremen in their performance
of their duties and giving direct instructions to workers,
stopping painters from doing their assigned tasks, solic-
iting dues from workers, leaving assigned work areas
without permission from his foreman and in general
disrupting Austin’s operation.
The steward’s function should be your eyes and ears
on the project and should not interfere with the work
functions that are being performed. He is expected to
work a full shift and not to leave his assigned area.
We would appreciate it if you would so direct your
stewards as to their duties and this letter is a notifica-
tion that if it continues, we will have no choice, but to
terminate Mr. Bailey.
Bailey testified that as a result of the letter he ‘‘stopped
doing anything unless the guy’s job was at stake. Then I
would put my job on the line for it.’’ Regarding the solicita-
tion of union dues, Bailey testified as follows:
The financial secretary asked me to personally go see
these guys and tell them that they were going to get
kicked out of the union unless they paid their dues. I
was just trying to save the guys’ darned jobs. So rather
than me take the time and go do it, I asked Jose
Robles—he’s in the union; he’s supposed to be a broth-
er—I asked him if he would go see these individuals
so I could keep working. And he said that yes, he
would.
i. The testimony of Steve Johnson; Johnson’s
involvement with the knife incident; and
Johnson’s discharge
Steve Johnson described the work of the fliers as ‘‘miser-
able,’’ as they were working near the ceiling after the build-
ing had been baking in the sun all day, and the temperature
would be from 90 to 105 degrees. Further, the men were
suited up in a full set of coveralls, gloves, heavy boots, a
cloth spray hood, a full-face respirator, and apparently, a
body harness. They were paid $19.24-per-hour straight time,
regardless of whether they were flying or scraping paint in
the stairwells.
After the August meeting, according to Johnson, when
Cook had agreed, in effect, supervise themselves in exchange
for increasing their production, things were satisfactory for
about 1-1/2 weeks. The foremen ‘‘kind of laid off and didn’t
scream and yell at us. We got the work done for them.’’
After the platform had been moved to a part of the structure
where the area above the platform was difficult to paint, the
men were unable to complete the job in time prior to the
next scheduled move of the platform. Cook, according to
Johnson, said that the men had failed to uphold their agree-
393AUSTIN CO.
ment, and had dogged it, and accused them of deliberately
failing to complete the work on time. This caused things to
revert to the way they were prior to the agreement between
the painters and the foremen.
Johnson testified that on Monday, September 14, near the
beginning of the shift, apparently about 4:15 p.m., Shelton
and Ford came up to him. Shelton said that Crowley had
pulled a knife on him: that Crowley had stepped back with
one foot, and pulled a knife out of his pocket, opened the
blade, began to twirl it in the air, and asked Shelton if he
was going to file a grievance against him. Upon hearing this,
Johnson told Shelton to go talk to Shop Steward Bailey
about the matter, as Bailey should be the one to handle the
situation. At lunch time, which was apparently some 6 hours
later, about 9 or 10 p.m., Johnson was told by Bailey that
during a meeting in Cook’s office, Crowley had threatened
to take Bailey out into the parking lot and kick his ass. John-
son asked Bailey what was being done about the knife inci-
dent, and Bailey said that Cook was ‘‘playing it down’’ and
just told Crowley and Bailey to calm down as they were get-
ting too excited. Johnson was perturbed that Crowley had not
been disciplined in some manner, and told Bailey that if one
of the painters had threatened to kick a foreman’s ass, the
painter would be ‘‘down the road.’’ Johnson also surmised
that Cook was trying to cover up the knife incident. He told
Bailey that he had a friend at Boeing, a painter, and that he
would call his friend and ask him to send over Boeing secu-
rity. Johnson did so, and Boeing security arrived about 5 or
10 minutes after he made the call.
Johnson testified that he thought the situation was serious
enough so that it had to be handled right away because
somebody might get hurt, and that somebody in authority,
other than Bailey, needed to handle it. Further, it appeared
that Austin was trying to make ‘‘too light of the situation.’’
Asked whey he felt that the matter could not be handled by
the persons directly involved, Johnson testified:
Well, viewing the people that were involved—Joe’s
[Bailey] a nice guy, but he is not real good at assessing
situations and coming up with what I feel would be,
sometimes, the smartest decisions. He is sometimes eas-
ily flustered. And Chuck [Shelton], of course, was pret-
ty upset. I didn’t think he was able to make any real
smart decisions, either.
Joe, it appeared, had failed to be able to remedy the
situation by going down and discussing it with the par-
ties involved. It seemed to have escalated to him being
threatened. And he came up flustered and not knowing
what to do, either, other than [saying] ‘‘I guess I just
need to go and talk to my business agent.’’
Responding to a question about his opinion of Crowley,
Johnson stated:
There was a marked change in Brian’s attitude to-
ward the rest of the men when he got his red hat,
which was the point where he became a foreman. Prior
to that, he played like one of the guys, one of the crew.
But when he got his red hat, my opinion of him at that
particular point changed because his attitude toward us
changed.
My opinion of him, to be frank with you, was that
he was a back-stabber. He was out for number one; and
if others got hurt along the way or he had to do things
that weren’t quite ethical, why, he would do it. And
that’s what—my opinion of him became quite guarded.
He was somebody to be careful of.
The next day, September 15, Cook said that he wanted to
see Johnson in his office. He terminated Johnson at that time,
stating that he had been instructed not to tell him why. Then
Johnson was escorted off the property.
j. The testimony of Sorter and Smith; the September 18
terminations of Shelton, Ford, Sorter, and Smith
Gary Sorter was hired in June. At the beginning of Au-
gust, he was working off the platform with another painter
and the job was ‘‘scary’’ so the men went to talk with
Robles to see if they could devise an alternate rigging to be
more secure. They came down and told Robles that they
would like to do it a different way. Robles said that the ex-
isting rigging was perfectly safe, and they should go back up
and perform the work.
Some time before September 18, Crowley saw Sorter look-
ing at his watch; he was beginning to clean up about 5 min-
utes before lunch, and told him to ‘‘Go talk to Mike and tell
him that you were standing around.’’ He did so and Cook
told him to stay busy and productive.
Daryl Smith began working for the Respondent in Feb-
ruary. He has been friends with Robles for a long time, and
considers him to be a good friend. In February he was told
by Robles to paint a wall, and was concerned because there
was no proper rigging, and no way to rig up a safety line
so that he could be tied off. Smith complained to Robles, and
Robles went to Cook who told Smith to either do the work
or he would get somebody else to do it. Thereupon Smith
complained to Bailey, and Bailey and Cook worked out an
agreement whereby Smith could run a rope in a way that
would enable him to tie off. There is no showing that Smith
was reprimanded or harassed as a result of taking his com-
plaint to a union steward.
On one occasion when they were removing the curtains
from around the platform, Smith was the only person stand-
ing there who happened to be wearing a safety harness.
Robles told him to walk out on the steel and remove the cur-
tain from some obstruction that caused it to hang up. Robles
told him to tie off to a piece of conduit. Smith testified that
he did not want to do it, but ‘‘all the guys were there; they
ribbed me; so I just crawled over the safety barrier out on
the steel; I went out there and took the plastic off the light
stand; and I crawled back onto the platform.’’ It is permis-
sible to walk steel as long as the individual is tied off.
There was one safety meeting, according to Smith, where
Cook told the painters that if production did not pick up he
was going to fire the whole crew and get people in there
who would get the job done.
Smith testified that in September, Robles told him ‘‘pretty
much on a daily basis’’ to ‘‘get the guys to drop their griev-
ance against the Austin Company or we would all be fired.’’
Also, Robles asked Smith ‘‘every day’’ to get Shelton to
drop his ‘‘charges’’ against Crowley or ‘‘they’d be getting
fired.’’ Robles, according to Smith, was concerned that
Smith would lose his job, and wanted Smith to ‘‘do some-
thing so that I wouldn’t.’’ Robles asked him to get the guys
to drop their grievances and safety complaints, and said that
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent introduced the minutes of each of the toolbox
meetings from May through September. The minutes reflect no safe-
ty complaints raised by the painters.
they had received permission from ‘‘back East’’ to go ahead
and fire the whole crew and to hire people who could do the
job.
Toward the end of the shift on September 18, Robles told
Sorter, John Ford, and Daryl Smith that he had a little task
for them to perform on the ground. They were taken into
Cook’s office and given their separation notices, stating that
they were being laid off because of ‘‘Willful misconduct on
the job.’’ Shelton, who had been transferred to the day shift
in order to separate him from Crowley because of the alleged
knife incident, received a similar notice that day.
A ‘‘Determination Notice’’ from the state Employment Se-
curity Department states that Smith, who was discharged on
September 18, was terminated for the following reasons:
Low production and disrupting others. Your employer
reported you were observed talking to other workers
and the crew had been talked to about low production
and the need to improve.
3. The Respondent’s defense
a. Testimony of Controls Manager Brenda Toole
Controls Manager Brenda Toole is a safety engineer; she
is in charge of safety, quality assurance, and scheduling at
the project. At times material herein there were four full-time
safety engineers in the safety department who reported to her
on the day shift, and one safety engineer on the second shift.
Toole testified that the Respondent puts safety above all
else. All employees on their first day of work are given a
safety orientation which takes from 1 to 1-1/2 hours; and
they are issued several items of safety equipment. In addi-
tion, there is a regular Monday toolbox safety meeting each
week at which a safety topic, written out by a safety engi-
neer, is discussed by a foreman or, in some cases, by a su-
perintendent who does not give the foreman advance notice
that he will be attending the meeting. The employees sign an
attendance list. The safety topic of the week is usually a cur-
rent problem, taken from a safety complaint log, that some-
one had brought to the safety department’s attention during
the preceding week. Minutes of the prior meeting are read
at the next meeting, and the men are advised as to the dis-
position of their safety concerns.6 Employees are encouraged
to raise any safety issues at the toolbox meetings. Also, at
these meetings the foremen are to note on a weekly com-
plaint log any safety problems raised by the men. The com-
plaints are recorded and the corrective action taken is also
noted on the logs, which are posted on safety bulletin boards,
so that the employees can learn what the complaints have
been and what corrective action has been taken. Further, em-
ployees are encouraged to come to the safety department any
time during the week with safety complaints. No safety com-
plaints, according to Toole, are considered unwarranted;
every safety complaint is investigated and corrective action
is taken as expeditiously as possible. In cases where con-
fidentiality is necessary or requested, the safety department
does not disclose the source of the information, and the indi-
vidual or group of individuals making the complaint is per-
sonally advised of the corrective action.
Toole testified that she heard of very few safety related
complaints from December 1991, when the painters started
on the job, until August 1992, when overtime work was
ended. Apparently from December 1991 until July 1992, a
period of about 8 months, the painters had been working un-
limited overtime; thereafter, they worked six 10-hour days
until August 9, when overtime work was discontinued and
they began working a 40-hour week.
Toole testified that on August 11, Union Steward Joe Bai-
ley told her that he had some serious concerns. His primary
concern was that the Respondent had ‘‘C list’’ painters work-
ing on the rolling platform, and that these people were inex-
perienced and therefore posed a safety hazard. Explaining,
Bailey told her that ‘‘C list’’ painters are new union mem-
bers who became members as a result of a newspaper ad
placed by the Union in order to obtain additional painters
after the Union’s other hiring hall lists had been exhausted.
While these painters were obtained by the Respondent
through the hiring hall in accordance with the union contract,
Bailey complained about the extent of their experience and
maintained that the Respondent was responsible for insuring
that only experienced people be assigned to work on the roll-
ing platform. Toole told Bailey that there should be no con-
cern, as the Respondent provided onsite training for such
painters; however, she said she would check into this. Bailey
did not provide her with any names of painters whom he be-
lieved to be unacceptable, but merely described them as C
list painters.
On August 14, Safety Engineer Russ Evans, one of
Toole’s subordinate safety engineers, entered Toole’s office
with Kevin Todd. Safety Engineer Steve Lotz was present
for part of the ensuing meeting—he was in and out of the
meeting twice. According to Toole, Todd began by stating
that he had some very serious safety matters he wanted to
discuss. He said the hydraulic man lifts were leaking hydrau-
lic fluid, and that the hydraulic boom on one of the lifts was
not working properly; he did not believe that the daily in-
spections were being made or that there was appropriate
maintenance on this equipment. Toole reminded him that the
painters were required to do daily walk-around inspections
on this equipment, and Todd said that some painters were
and some were not making such inspections. Toole said she
would investigate this further, and would conduct a remedial
training class, as a reminder, for all the people using the
equipment, and would have one of the subcontractors come
in and do a more thorough inspection of the equipment on
a daily basis.
Todd went on to say that he had other concerns, and reit-
erated Bailey’s concerns about the inexperienced C list paint-
ers on the rolling platform. He said that he would prefer to
have them removed, but that they could work elsewhere on
the project. He said that there were A and B list painters at
the union hall who were not working and were not eligible
for rehire on the job while C list painters were working on
the rolling work platform. He explained that Mike Cook dis-
liked some of the painters on the A or B list, and had termi-
nated them and made them ineligible for rehire. He said that
Cook was not a good foreman, and that he had some real
concerns about Cook. He said that he did not believe that
Mike Cook, Lonnie Cook (another foreman who was Mike
395AUSTIN CO.
7 Transfer chains support the swing stages and are subject to stress
damage if dropped from unreasonable heights; they are to be re-
moved by means of the Genie lifts.
8 Several days later, Todd brought the written complaints to her.
Most were simply a reiteration of Todd’s complaints.
9 Toole testified that at this session some of the painters admitted
that they disconnect the safety devices on the Genie lifts because it
enabled them to operate them without the outriggers. They were told
that if the outriggers prevented them from getting into a particularly
tight spot they should not disconnect the safety devices, and another
way would be found to do the work.
10 This session was held as scheduled.
Cook’s father), Jose Robles and Brian Crowley were enforc-
ing or implementing many of the safety procedures. Then he
said that Mike Cook and Lonnie Cook had only joined the
Union for this particular job, and they were not prounion;
and that he, Todd, would be able to get more production out
of the workers than they were getting. He also said he had
serious concerns about Jose Robles, because Robles could
not read or write or fill out time sheets, and that someone
else had to do that for him. Toole said that these latter con-
cerns were not safety issues, but that she would pass these
on to her boss, James Peterson.
Toole asked Todd if he had any further concerns, and he
said that he did. He addressed the hydraulic Genie lifts
which were used on the rolling work platform, saying that
the outriggers were not always being used on those. Toole
asked him why, and Todd explained that sometimes the lifts
could not be placed in tight spaces or corners with the out-
riggers attached, and that sometimes the outriggers would be
misplaced as the Genie lifts were not used on a regular basis;
and that when the men went to look for them, Robles would
tell them not to bother with the outriggers and to get on with
their work. Toole said that she would insure that there were
outriggers for all such equipment and that if the men were
going to be working in tight spaces where the outriggers
could not be utilized, then she would find some other safe
way to get the men up in the air, even if it necessitated
building another scaffold or platform.
Todd mentioned three specific concerns with the swing
stages: that the toeboards were not always in place; that
transfer chains were being dropped from the beams onto the
rolling work platform;7 and that rope grabs were becoming
turned and twisted. Regarding the toeboards, he said that
sometimes they get misplaced or broken, and a supply of
extra ones were needed on the site. Toole said she would
provide additional training for the painters, and would re-
place all of the broken toeboards, and she would bring Spi-
der Staging (the company that manufactured the swing
stages) to do more inspections on the transfer chains and
rope grabs, and that ‘‘we’ll replace and repair’’ whatever
was needed to assure that the equipment was safe.
Todd, according to Toole, said that there was one other
concern, and that was that the painters were basically only
cleaning the steel prior to painting when the paint manufac-
turer was going to be on the site. Toole said that would be
easy to investigate as she was responsible for quality assur-
ance, and would have her people check to see that the steel
was being cleaned before it was painted. Toole asked Todd
if there were any other concerns, and he said that other
painters had concerns, but that was not able to speak for
them at that point. Toole asked why they did not come in
and talk to her, and Todd said they were afraid to do so.
Toole then asked Todd to have them write down their con-
cerns. He said he would do that, and would bring them to
her at the beginning of the following week, but added that
the men would not sign their names to the complaints. Toole
told him that she did not need their names.8
Todd told Toole that the safety department needed to do
something about these concerns immediately. Toole said that
she needed the better part of a week to address all these
things, but that she would begin immediately, and do what
was required. Todd then said, according to Toole, that if she
did not take care of these matters he would do whatever he
could; that he would contact the NLRB, the Union, and
OSHA, and that he would phone the Boeing representative
and let them know what was going on. He further said, ac-
cording to Toole:
He also went on to state that he had other ways of af-
fecting our work and that he could cause trouble. He
told me he was an agitator and that one of the things
that he would do if we didn’t correct these things was
slow the work. And he said the way in which he would
do this is whenever the foremen or superintendents
weren’t on the rolling work platform, that he would
have all of the people come down out of the stages; and
they would just stand on the platform. They wouldn’t
work unless there was any supervisors up there.
A second meeting was held on August 19. Those initially
present in addition to Toole were Todd, Jim Blake, and Safe-
ty Engineer Steve Lotz. Also, after about 5 minutes, at the
request of Todd, Richard White was also brought in; and
after about 10 minutes, Steve Johnson came in. Todd went
through some of the same concerns that he had mentioned
to Toole during the first meeting. He also addressed some
new issues, such as painters walking the steel. Toole said
that for the most part the painters should not have to do that
because much of the steel could be accessed by means of
ladders or lifts from the rolling work platform. Todd said
that it was his primary goal to get rid of Mike Cook and
Lonnie Cook because they were not prounion and had just
joined the Union for this particular job; and that he was bet-
ter able to run this job. White told him to go back to work
and do his job, and that he would talk to Peterson about
these things. Toole reported to him what she had accom-
plished since his first visit 5 days earlier: that a training ses-
sion for the painters on man lift equipment had been held on
Monday, August 17;9 that on August 18 she brought in a
representative of the Spider Staging Company who gave a
training session which was attended by every worker on the
rolling platform; and that in addition to the training session,
the Spider Staging representative had safety inspected all the
stages. Further, because of all of the questions asked at the
first meeting, another training session for the swing stages
had been scheduled for August 25.10
Toole asked Todd whether he was satisfied with what was
being done, and Todd said that he was, but that his primary
goal was to get rid of Mike Cook; he did not want Cook
there because Cook was not implementing the safety pro-
gram. At this point Blake spoke up and said that Crowley
had made some derogatory remarks against him, and that all
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he wanted was to be left alone to do his work. The meeting
lasted about an hour, and after White left, Todd reiterated
that he could cause trouble and would slow the work down.
Lotz was there for the whole meeting. Todd also said he had
been in contact that day with the NLRB, that he had written
up charges, and that NLRB representatives were just waiting
for him to call and confirm that he wanted to proceed with
the filing of the charges.
b. Testimony of Safety Engineer Steve Lotz
Steve Lotz has been a safety engineer for the Respondent
for 5 years. The primary responsibility of safety engineers is
to develop and implement safety programs for the job site,
and to provide safety training for all employees, supervisors
and foremen. The safety engineers also write the weekly
script for the toolbox safety meetings that the foremen hold
with their crews. Also, they hold byweekly safety meetings
for the Respondent’s foremen and superintendents as well as
for the foremen and superintendents of the subcontractors.
Lotz testified that there were never any safety complaints
from the painters from December 1991 through June 1992
when Russell Evans replaced Lotz as safety engineer on the
second shift.
Lotz was present for the entire August 14 meeting. Ac-
cording to Lotz, Todd voiced his various safety complaints,
supra, and then started talking about Mike Cook. He said the
men were not happy because Mike Cook and Jose Robles
were incompetent and were not qualified to be foremen, and
that they were not prounion. He said something to the effect
that they were just in the Union for this job, and they should
not be foremen because they were not ‘‘regular union peo-
ple.’’ He said the men were not going to be happy until
Mike Cook and Jose Robles were no longer on the job, and
that, ‘‘I’m slowing down work up here, up on the platform;
and I’m trying to get everybody else to do the same; and
we’re not going to get anything accomplished until they’re
gone.’’
Lotz had a conversation with Todd on August 19, out in
the work area. Todd said, according to Lotz, that he was not
happy with the progress that Toole and Lotz were making
and that his complaints had not been addressed; that Cook
and Robles were still foremen; and that he needed some ac-
tion now or he was going to sue the Company and take them
for everything they were worth, or words to that effect. Lotz
replied there was nothing he could do about Todd’s concerns
with Foremen Cook and Robles, as his job was to deal with
safety matters; however, he invited him to come to work
early the next day and again meet with Toole to discuss what
had been done about Todd’s safety complaints.
Lotz also attended the August 19 meeting. Shortly after
the meeting started Lotz was called on the radio, and left.
He returned about a half-hour later. He recalled that the
painters were saying something about Cook and Robles
‘‘having to go’’ before they would be satisfied. Todd, ac-
cording to Lotz, did not seem to be upset with Cook and
Robles because they allegedly were not doing a proper job
in enforcing the miscellaneous safety complaints he had;
rather, Todd was upset because they were previously non-
union, and he felt they were incompetent. Superintendent
White said that there was no way that Mike Cook or Jose
Robles would be thrown off the job. He told the men to go
out and do their work and give the safety people a little time
to try and address their concerns, and to keep calm and not
to do anything rash. The meeting ended and, according to
Lotz, the men were afraid that they were going to be a little
late to work.
Lotz testified that at about 7 p.m. on August 20, Blake
passed Lotz in the building and said that he was going to
meet his business agent, and that in an earlier meeting Gary
Elrod had told him that ‘‘safety was not important, produc-
tion was important.’’ Blake said that Lotz needed to do
something about that. At that point Crowley drove up in the
pickup truck and politely said, ‘‘Jim, go back to your work
station and we’ll get the BA and bring him in to talk to you
there.’’ Blake said no, that he was going to meet the business
agent at the gate. Crowley politely asked him three times to
return to his work, and Blake refused and ‘‘went stomping
off toward the main gate.’’ Crowley drove after him, and
about 3 minutes later Lotz heard Crowley on the radio tell
Gary Elrod that he was firing Blake for insubordination be-
cause he refused to go back to work. Later that night he
heard Crowley call Elrod again and report that he was firing
Todd because he was refusing to work.
c. Testimony of Safety Engineer Russell Evans
Russell Evans became employed as a safety engineer for
the Respondent on June 22, 1992, and worked in that capac-
ity until he left on October 1, 1993. He monitored safety ac-
tivities on the job, and his practice was to walk about the
site, not telling anyone when or where inspections were
being conducted. He received no safety complaints from the
painters from June, when he started, until August 13, other
than one instance when Todd approached him at the begin-
ning of August about filling one of the eyewash stations; it
was the laborers job to maintain the eyewash stations.
On August 13, Todd and Bailey approached Evans on the
rolling work platform. Bailey said that he had been required
to go up in the Genie lifts without outriggers. Todd men-
tioned that he did not want any of the foremen to hear the
conversation. Evans told Bailey that he did not want the men
to go up in the Genies without outriggers. Bailey said that
he did not want the foremen to know who was reporting
these things. Todd made a number of other safety com-
plaints: a grab rope that was not functional; walking steel
without being tied off when they were placing the plastic
containment curtain around the platform; and that C list
painters were regularly walking the steel beams without
being tied off. Evans remained on the platform the rest of
that night, looking for safety violations by the foremen or the
employees. He asked Robles whether he had been using the
Genies without outriggers, and Robles said that he had not.
He saw no violations that night. Todd again approached him
later that night and wanted to discuss all the various safety
issues further, but at a location that could not be observed
by the foremen. He said that Mike Cook would ask for the
names of painters reporting such safety violations. He also
said, according to Evans, that ‘‘he was an instigator, an agi-
tator on the job, on job sites, not specifically at Austin; and
that he was known for this activity.’’ Evans invited him to
a meeting with Toole the next day where the matters could
be discussed.
Evans attended the entire meeting on August 14. His
recollection of the meeting is ‘‘somewhat minimal.’’ Todd
discussed a number of safety items and said that Cook was
397AUSTIN CO.
11 Robles testified that while there were a few safety complaints
from the crew, he took care of them promptly.
incompetent as a painter foreman, and that he should be
fired. He also said that Cook was not a union man. He did
not recall whether Todd said that he wanted to be the boss
on the job, but he was very unhappy with Cook’s manage-
ment of the job. There may have been some mention of
overtime being taken away, but Evans does not recall wheth-
er it was at that meeting.
After the meeting ended Evans went back up to the rolling
work platform. Bailey approached him and said that Cook
had forced him to go up in a Genie lift without outriggers.
He said that if Evans addressed this problem with Cook, Bai-
ley did not want his name mentioned. Evans approached
Robles and asked if he had been using Genie lifts up against
the walls or a beam without outriggers: there was a Genie
lift up against the wall that was missing an outrigger. Robles
said that this was necessary in certain situations. Evans told
him not to do that until after Evans could call the manufac-
turer of the Genie lift and find out if this was permissible.
He called the manufacturer the next day and explained the
situation; he was told that it was safe and permissible to use
the Genie lift without outriggers when it was up against the
wall, but not when the lift was merely up against a beam;
but that from a liability standpoint outriggers should always
be used. Evans then told Robles not to use the Genie lift at
all without all the outriggers.
Evans testified that Todd also made some safety allega-
tions concerning Crowley. Further, he said that Mike Cook
and Lonnie Cook, and ‘‘basically management’’ did not
properly run the painting operation and should be gotten rid
of. He said the employees were not treated right on the job
and were monitored every time they went to the bathroom.
He said the men did not have the proper equipment or attire,
and basically that they wanted to be treated like human
beings. Evans testified that all the safety matters were looked
into by the various safety engineers, who were all given spe-
cific assignments and told to investigate complaints. No safe-
ty violations were discovered.
Evans testified that while Todd did bring up various safety
matters, it seemed like he was attempting to use them as
more of an excuse to get rid of Mike Cook. Todd, according
to Evans, said that Cook did not even know how to paint,
that he was not competent, and that he was not a union man.
Evans testified that his job was just to take care of safety
concerns, and he did not attempt to figure out what was
going on or to get involved with the ‘‘politics’’ of the job.
d. Testimony of Foreman Jose Robles
Jose Robles worked for the Respondent from December
1991 until May 1993. He was a foreman on the rolling work
platform. He spent about 50 percent of his time on the plat-
form, and 50 percent on the ground getting equipment for the
fliers and for the pot tender who prepared the paint on the
platform. Thus, he had a number of tasks to perform on the
ground: getting rags, electrical cords, face guards for the
painter’s masks, plastic bags, and rollers and brushes, and
fixing hoses and pumps that were broken. Robles had 11 em-
ployees on his crew, 8 flyers who manned the four swing
stages, 2 men on the ground who painted, and 1 pot tender
who mixed the paints and took care of other items.
On August 10, Robles was present during a lunchtime dis-
cussion that his crew was having. He was about 6 feet away
from the group. Also, all of Brian Crowley’s crew who were
working on the tower were present. Specifically, in addition
to the rest of the men on the two crews, Kevin Todd, Jim
Blake, Steve Johnson, Gary Sorter, Chuck Shelton, and Daryl
Smith were present. Prior to August 10, the overtime work
of the painters had been cut. Todd stated at the meeting, ac-
cording to Robles, that the men wanted their overtime back
and were going to slow down the work on the platform in
order to accomplish this. There were no complaints about
safety;11 rather, the men said that they would do anything to
get their overtime back. Some of the fliers, including Steve
Johnson, said they were going along with Todd and Blake,
and intended to slow work down on the platform. Todd said
they were not going to do what that ‘‘ass hole’’ Cook told
them to do, but that they would follow Robles’ instructions.
After the meeting the men took the elevator downstairs and
spent more time talking about the situation and smoking
cigarettes. The break was over at 9:30 p.m. and, according
to Robles, they did not come back up to the platform until
about 10:15 p.m. Then they proceeded to slow down and not
get on their stages; instead, they cleaned their masks, cleaned
paint off their shoes and boots, and ‘‘stuff like that.’’
Robles reported to Cook what was going on, and Cook
came back up and had a talk with the men. Robles and
Crowley were present. Cook told the crew that overtime had
run out, and that it was not Austin’s fault. Further, he told
them to get back to work or there would be some changes
made and he would replace them.
After that August 10 meeting, according to Robles, the
work did not pick up that much, and the men slowed down
the job by not painting as quickly as they had in the past.
He would continually tell the men to ‘‘get going’’ and pick
up the work, and spoke with Cook about the matter on a
number of subsequent occasions.
In mid-August, Cook instructed Robles to remove Todd
and Blake from the stages and put them to work on the plat-
form painting I-beams. This did not work out that well be-
cause, according to Robles, Todd and Blake were busy tak-
ing cigarette breaks, and would not remain in their work
areas. Robles caught Blake smoking by the curtain when he
had been told not to smoke cigarettes on the platform. In ad-
dition, Todd was not where he was supposed to be and
Robles went to look of him and found him over in the corner
smoking a cigarette. Robles went down and reported these
things to Cook, and Cook instructed him to transfer Todd
and Blake to Crowley’s crew on the ground.
According to Robles, the slowdown continued well into
September, until after Sheldon, Ford, Sorter, and Smith were
terminated. Robles testified that the men continued to slow
down production on the platform, and there were even times
when he caught them lying down on the stages smoking
cigarettes. Prior to the discharge of Johnson, it appeared to
Robles that Johnson, who had been very friendly with Todd
and Blake, and who had been Blake’s stage partner, had
taken over as leader of the group and was creating more
problems on the platform for Robles’ crew. Thus the men
continued to slow down the work; in particular, Johnson
slowed things down by taking excessive and length bathroom
breaks, failing to get on his stage in a timely manner, and
taking too long for breaks and lunch. Smith, Ford, Sorter,
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 A division is an area approximately 100 feet by 350 feet, which
is the same size as, and immediately above, the rolling work plat-
form. A bay is a 25-by-25 foot cubicle within a division. There are
4 rows of 14 bays, or a total of 56 bays within a division.
and Joe Bailey were involved in the slowdown, and seemed
to be following Johnson’s lead. During this time, Robles
continued to advise Cook of the problems he was having
with the crew.
According to Robles, production picked up after the men
were terminated. During the slowdown the men used about
100 gallons of paint a night; after the discharges in mid-Sep-
tember new painters were hired from the hall and work
‘‘picked up fantastic’’; the new crew used about 300 gallons
of paint each night.
On September 14, the night Boeing security was called,
Robles had been trying to locate Steve Johnson and was told
that he had gone to call Boeing security. Later, after Boeing
security had arrived and had asked to speak with Johnson,
Robles was instructed to bring Johnson from the platform to
meet with the security officer. As they were walking to-
gether, Johnson said to Robles, ‘‘I’ll get even with Brian
Crowley; and I called security on him; and he’s just as guilty
as . . . pulling a knife.’’ Johnson said that he was getting
even with Crowley for laying off Blake and Todd, and ‘‘for
railroading them.’’
Robles testified that a few days later he had a conversation
with Chuck Shelton on the platform. Shelton, who had been
appointed to the position of union steward, said that the busi-
ness agent had made him a union steward so that he could
not be fired.
e. Testimony of General Foreman Mike Cook
Mike Cook has been the painting general foreman from
December 1991 to the present date, and has been responsible
for hiring and firing the painting crew. He has been a union
member for 14 years. The job of the second-shift painters
was to work in the high bays on the rolling platform and to
paint in the tower portions of the buildings. High bay paint-
ing was not done of the day shift because it would interfere
with the activities of the other crafts. According to Cook,
there were always a number of painters who were capable
of doing a proficient job on the swing stages, and he and
Robles would keep an eye on the new fliers, and confer with
their more experienced partners, to insure that they were
competent and comfortable with the work. Indeed, two paint-
ers had been moved from the high bay because they said
they were not comfortable with the work; also, Joe Bailey
was removed from a stage as he was ‘‘incredibly slow’’ and
seemed kind of unsure of himself.
At each toolbox meeting on Monday of every week Cook
would ask whether the men had any safety complaints or
concerns they wanted to talk about. This was a mandatory
meeting for all painters. There were a few safety complaints,
and these were taken care of right away. According to Cook,
the men generally did not like to wear their gear: the body
harnesses were heavy and they were constrictive. He encour-
aged the men to come and talk to him about any problems,
but testified that no one complained to him about safety mat-
ters, or said that Crowley and Robles had instructed them to
ignore the safety procedures for the sake of production. Rath-
er, according to Cook, the foremen had to constantly talk to
the men about wearing their safety harnesses, and would
catch painters trying to walk steel without wearing them or
being tied off. Also, the men had a practice of using the
Genie lifts without outriggers. Cook was able to observe the
men when no one knew that he was watching, as the work
area was extensive and there were many vantage points that
were not out in the open.
Prepping, according to Cook, constitutes a very large per-
centage and a very important part of the work. If the
prepping of the steel is not adequate, then paint failure may
occur: the paint could crack, or peel, or the surface could
rust.
In February, the painting crews were working unlimited
overtime. They worked 10 to 12 hours or more 6 days per
week. On July 6, this was reduced to a maximum of 60
hours per week, at which point Cook told the men that the
workweek would be limited to 60 hours, and the platform
would move regardless of whether the division was com-
pleted or not. Cook testified that most of the men were pretty
unhappy about the reduction of overtime, and that some had
told him that the only reason they had accepted a job with
Austin was for the extra money to be made by working ex-
tensive overtime. The 60 hour per week maximum began on
July 6, but the painting in the first division of this building
was not completed by July 15, as scheduled. Rather, accord-
ing to Cook, it took the men 20 hours to hang the contain-
ment curtain around the platform, while the same job had
taken only 10 to 12 hours on the last section of the preceding
building. In addition, each swing stage completed only two
bays per day in the new building, as opposed to five bays
per day that had been previously painted by the men in a
building of similar difficulty.12 Cook testified that the men
should easily have been able to complete a total of three
bays per 8-hour shift.
Observing that the crew was not getting the work done,
Cook went up to the platform to talk to the men. Cook testi-
fied that Todd and Blake seemed to be leading the men from
the day work started: The guys kind of followed them
around. He asked Todd why production was proceeding so
slowly, and Todd answered that:
[M]orale was low and the guys were pissed off and
Brian Crowley was bird dogging his men and Jose
[Robles] was yelling at his men rather than talking to
them. He said that rules kept changing, that we tell
them to constantly be tied off and wear their safety gear
and they didn’t like doing that, that they had trouble ac-
cessing the areas that they needed to paint wearing all
their gear.
At about that time Blake walked up and Cook suggested that
Todd and Blake have a talk with the men during an extended
lunch, and discuss any problems and any solutions they
could come up with to get the job completed on time; then
they were to come and talk to the foremen, Cook, Robles,
and Crowley, when they were finished. This happened, and
after their crew meeting Todd, Blake, Bailey, and another
painter met with the three foremen. The men, according to
Cook, had two main concerns: they wanted to maintain dis-
cipline within the ranks for their own people; and they did
not want to be ‘‘bird dogged’’ or checked on when they left
and returned to their work areas. Cook, Robles, and Crowley
met privately for a minute, and Cook decided to give it a try
399AUSTIN CO.
13 The five or six painters on the first shift would not actually
paint, but would set up for the second-shift painters so they could
begin painting immediately; this would increase the amount of paint-
ing that could be performed on the second shift. Further, the second-
shift painters would not have to clean up; rather, the third-shift
painters would just begin painting where the second-shift painters
left off.
‘‘as things couldn’t get any worse.’’ Cook advised Todd, ap-
parently as spokesman for the men, that the conditions were
agreeable. After this the production was satisfactory for a
time, and the first two divisions of the building in which
they were then working were completed on schedule. How-
ever, the work in final division of the building was way be-
hind schedule, and it appeared to Cook that the men were
continuing the slowdown.
Cook had a brief meeting with Business Agent Kessinger
sometime between July 6 and 15, during the period of the
slowdown. Kesinger said that he had heard from some of the
men that they were walking steel and using Genie lifts with-
out outriggers. Cook said that this was the first time he had
heard such complaints, and that if it was a problem he would
take care of it. Cook suggested that Kesinger talk to the
steward the next time and the steward could relay the mes-
sage to Cook, as this would be a more expedient way to han-
dle the problem. Kesinger agreed. Thereafter, Cook went to
the safety department people, and then talked to Robles
about this. Robles said that to his knowledge Kesinger’s in-
formation was incorrect. Cook told him to remind all the
men to be tied off when they walked steel and to use the
outriggers on the Genie lifts. The following day he met with
the men, and also reminded them of the safety rules.
On August 10, the crew was scheduled to begin painting
a new building, building 40/36. Apparently about a week or
so prior to this date, while the crew was painting the final
division of building 40/35, which work, as noted above, was
not proceeding according to schedule, Cook told the crew
during a lunchtime meeting that he had been advised that be-
ginning August 10, the second shift would be strictly work-
ing 40 hours per week with no overtime, and that high bay
painting work would be supplemented by painting crews on
the first and third shifts.13 Up to that point, the high bay
painting had only been performed on the second shift. Cook
told them that continuing to slow down the work was not the
answer. He proposed that if they would pick up the pace and
show that they could complete the divisions in the new
building within the 60-hour per week time frame, he would
ask Gary Elrod, Austin’s night-shift superintendent, to see if
Boeing would agree to rescind the announced 40-hour maxi-
mum workweek, and permit the men to continue working a
60-hour week, thus apparently eliminating the need for the
first- and third-shift painting work. Cook testified that the
men got together and talked amongst themselves and decided
to put forth their best effort to complete the divisions on
time.
Cook did propose this to Elrod who thought that it was
a reasonable request and said that he would talk to Boeing
and try to get overtime extended if the divisions could be
completed in a timely fashion by the second shift during the
course of a 60-hour workweek. However, several days before
the work in the new building was to begin, Elrod advised
Cook that Boeing had decided not to extend overtime, and
that the second shift would be strictly working only a 40-
hour week.
The preparation work in building 40/36 began on August
10. It consisted of erecting the containment curtain and
masking off all the areas not to be painted. Cook observed
that the 11 painters on the crew had not completed this prep-
aration work within the 12 hours it should have taken them;
rather, it took them 20 hours. Also, when the actual painting
work began in the new building, the men were completing
only one bay a day as opposed to the three to five bays per
day they had been able to complete in the prior building.
Cook learned from Robles that the men had a meeting during
lunch, that they were trying to find a way to get their over-
time reinstated, and that Blake and Todd were telling the
men that they could accomplish this by slowing down their
work, thereby forcing Austin to give them back their over-
time. Robles told Cook that most of the crew had indicated
that they agreed with this suggestion, and decided to slow
down. In addition, he told Cook that some painters were
complaining to him of being confronted by Blake and Todd
and of being intimidated or threatened into joining their
movement to try to replace Cook and his foremen.
Thereupon, Cook monitored the painting production and
decided to have a talk with the men. He bluntly told them
that the slowdown had to end and production had to pick up.
According to Cook, the men did not deny that they were en-
gaging in a slowdown. However, Cook’s warning was not ef-
fective, and production continued to decline. Paint usage
went from 180 gallons a night to sometimes 25 gallons a
night; the slowdown continued for about 10 days.
Cook was able to observe the crew’s work from the other
side of the curtain where no one could see him. He saw that
Todd, Blake, Steve Johnson, Sorter, and Smith seemed to
stand out as the ones who were most conspicuously slowing
down. Todd and Blake seemed to be doing all the talking,
urging the other fliers not to get on their swing stages until
Todd and Blake got their swing stages up in the air which,
according to Cook’s observation, would cause a delay of 20
or 30 minutes. Once they did get up they would come down
to go the restroom more times than it seemed humanly nec-
essary, and would not return for 45 minutes. It seemed to
Cook that the crew was working at about 25 percent of ca-
pacity.
Two or three days later he had another meeting with the
crew, and said that production still had not picked up, in fact
it had gone down since the last meeting, and that they would
not be able to complete the division on schedule. He again
told them that if the work did not pick up, Austin would be
forced to replace either the entire crew or at least certain
members of it, and that he would have to fire them and he
really did not want to do that. Again, no one challenged his
assertion that the men were engaged in a slowdown.
On August 19, Cook decided to have Robles assign Blake
and Todd to the platform. That did not appear to be effec-
tive, as Robles said that they were still continuing to disrupt
others, and refusing to do their job. Then, on August 20,
Cook decided to remove them from the rolling platform, so
they could not disrupt anybody. He reassigned them to work
on Crowley’s crew. About an hour after the 4 p.m. shift
started he received a call from Crowley who advised him
that Blake did not have a putty knife or scraper to perform
the assigned work. Painters are supposed to have the tools
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the trade on their person. He told Crowley he could bor-
row one of Cook’s scraping tools. About 5 or 10 minutes
later he received another call from Crowley who said that
Blake had refused to go to work. Superintendent Elrod was
present and told Cook to tell Crowley that if Blake was re-
fusing to go to work, he should be terminated.
About 5 minutes later, Crowley and Blake entered the
trailer. Blake said that he was not refusing to go to work;
rather, he had called his business agent, Bob Kesinger, and
Kesinger told him to meet him at the gate. Cook said he
would pick up Kessinger at the gate and bring him to Blake.
Then Blake said that he was being harassed by having been
taken off the swing stage and made to prep steel in the stair-
wells. Cook said that prepping steel was painters’ work and
that he and Todd were to do it just like all of Crowley’s
other men who were also prepping steel. At that point Todd
entered the trailer and asked Elrod if he supported moving
Blake and him out of the swing stages and replacing them
with less experienced men. Elrod told them that they had
been pulled off the stages and given jobs on the platform be-
cause they had been disrupting other people. Cook told Todd
that he had continued to disrupt people on the platform, and
therefore it was decided to remove him from the platform
and assign him to an area away from the men on the plat-
form. Todd then asked Elrod: ‘‘So, I’m being moved because
of safety and production?’’ Elrod said that, ‘‘safety has never
been an issue with us, you guys were working below your
expected level of production, and that’s the reason you were
moved from the [stages].’’ Then the two left.
At 6:30 p.m., when Cook got to the gate to escort
Kesinger onto the premises, Blake was standing there talking
to him. At that point, Crowley called Cook on the radio and
said that he had just fired Blake for refusing to go to work.
Cook told Kesinger that he would escort him in. Kesinger
asked why Blake was fired and why Blake and Todd had
been removed from the swing stages. Cook told him that the
men had been involved in a work slowdown, and were dis-
rupting the other painters. Kesinger said that he thought the
two had a good case for harassment and that they would
probably win. Then Cook escorted Kesinger to where Todd
was working. About 9:45 p.m., Cook received a call from
Crowley who said that he had just terminated Todd for refus-
ing to go to work. Thereupon, Cook told Kesinger this, and
escorted him off the site.
Cook testified that thereafter the work still was not com-
pleted on schedule and the slowdown continued after the dis-
charge of Todd and Blake. Cook continued to monitor the
situation, observing the men from behind the containment
curtain. Steve Johnson seemed to be the new leader of the
group. Also, fliers Gary Sorter and Daryl Smith were urging
the men to slow down and not go up in their swing stages
until Sorter and Smith did; they were taking extended bath-
room breaks and too much time getting up in their swing
stages. Robles and Crowley reported the same types of things
to Cook: Crowley reported that he had seen Chuck Shelton
and John Ford disrupting the other men and working well
below their normal production capabilities, and also doing
‘‘real sloppy work.’’ Crowley told Cook that he had rep-
rimanded them and had told them that they would be fired
if they did not pick up the pace and end the slowdown.
Robles also told his men the same thing. The slowdown
caused significant problems, because the work that had not
been completed prior to the relocation of the platform had
to be done from the ground with manlifts and single spider
baskets, and this was very costly and time consuming.
On Monday, September 14, at the regular toolbox meeting,
Cook gave the painters a refresher course on the meaning
and purpose of yellow caution tape, as Shelton and Ford had
been told to cross the tape by Crowley and they had refused.
Apparently they were worried that they could be fired for
crossing the tape. Cook told the men to use their common
sense.
About 7 p.m., 3 hours after the shift began, Bailey told
Cook that Crowley had pulled a knife on Shelton. Cook told
him to get Shelton and meet Cook in the trailer. Then Cook
summoned Robles and Crowley. He told Crowley what Bai-
ley had accused him of. Crowley denied it and said that he
had never pulled a knife on anybody in his life. Bailey kept
repeating that Crowley had done this, and the situation was
getting ‘‘very confrontational.’’ Crowley became upset and,
according to Cook, said that if Bailey did not shut his mouth
he was ‘‘going to take him out in the parking lot and kick
his ass.’’ Cook told everyone to calm down, and told Bailey
to go find Shelton. A few minutes later Shelton came in with
Myron Peterson, another steward. Cook asked Shelton what
had happened, and Shelton said that Crowley had asked him
if he was going to file a grievance for crossing a yellow
tape, and then asked him again, and then held his arm up
with a knife. Crowley said that he never pulled a knife on
anybody, and Bailey said that he knew Crowley did it be-
cause Shelton did not lie. It turned into a heated argument.
Crowley said that he knew why this accusation was made:
it was because Shelton had been involved in the slowdown
and Crowley had admonished him for it, and now Shelton
was making this ridiculous claim.
About 10 o’clock that night Cook received a call that Boe-
ing security was in the building, and that they were looking
for Steve Johnson, Shelton, and Crowley. Boeing security of-
ficers said they had received a call from a Boeing facility su-
pervisor, and that Steve Johnson had reported that Brian
Crowley had pulled a knife on Chuck Shelton. They said that
pending the investigation, Crowley would be required to
leave the job immediately.
Cook had a discussion with Jim Alger, the new second-
shift painting superintendent who had taken Gary Elrod’s
place. Cook told Alger that Johnson had not witnessed the
alleged knife incident, and that, according to Robles, Johnson
had vowed to get back at Crowley for firing Blake, his
former swing stage partner; further, Johnson was involved in
the slowdown which had continued after the discharge of
Blake and Todd. Alger decided that what Johnson had done
was a ‘‘malicious lie’’ to get back at Crowley. Jose Robles
believed that this was the case also.
The next day, September 15, Alger instructed Cook to dis-
charge Johnson. Alger told Cook not to give Johnson a rea-
son for firing him, as Johnson would be filling a grievance
over the matter and he would find out then. Crowley, who
had been removed from the site pursuant to the instructions
of Boeing security personnel, was off for 1 day and then re-
turned to work. Shelton was reassigned to the day shift so
that he and Crowley would be separated.
On September 17, Cook was in his office talking to Alger.
Previously, another painter, Ty Miles, had come in and com-
plained about being confronted by Bailey. He said that Bai-
401AUSTIN CO.
14 Records noting the number of gallons of paint used per shift are
not kept, and Cook’s testimony in this regard is from his recollection
of the gallons of paint used.
15 In fact, it appears that no grievance was filed. There is no con-
tention by the parties that this matter or any other matters involved
herein should be deferred to the contractual grievance procedure.
ley had wanted him to make a list of safety problems on the
job and join their movement. Alger asked if Miles would
mind making a statement about this, and Miles began writing
out his statement. Cook and Alger went into an adjoining
room. Cook testified that he observed Shelton opening the
door to the office. Alger went to see what Shelton wanted
and, upon returning, said that Shelton had entered the office
and was asking Miles what he was doing there and what he
was writing; when Alger asked what business Shelton had in
the office, Shelton said he was looking for his paycheck. It
is company policy that the foreman brings the paychecks to
the men every Thursday; Alger told Shelton to go back to
his work area.
Later that day, after discussing the situation, Alger said
that he had decided to get rid of all the rest of the painters
who were involved in the slowdown. He told Cook to make
a list of the men who were involved, and to discharge them
the next day. Cook talked with Robles and Crowley and
made up a list of employees whom they believed were con-
tinuing the slowdown, namely, Chuck Shelton, John Ford,
Gary Sorter, and Daryl Smith. They were fired by Cook at
the close of their respective shifts on the following day, Feb-
ruary 18. This was on the last day of the scheduled work in
division 1 of building 40/26. This division was not com-
pleted on schedule, that is, prior to the relocation of the roll-
ing work platform.
Following September 18, according to Cook, some new
men were hired but most of the men who replaced the dis-
charged fliers had been on one of the various crews and
merely had to be reassigned. Production exceeded anything
that had been done in the past. All the divisions were com-
pleted on schedule. On several nights the painters used more
than 200 gallons of paint, and on one night they used over
240 gallons.14 The work of the new crew during the 40-hour
workweek exceeded any work ever done during the period
of the 60-hour workweek.
Cook has remained as second-shift general painting fore-
man to date. The high bay work was completed in about Oc-
tober 1993.
Cook testified that he never asked Controls Manager Toole
or any engineers from the safety department the identity of
anyone who might have been presenting safety complaints,
and that he never did find out who was making the com-
plaints. He was not given advance notice of the observation
of the second-shift painting work by safety engineers. He
never asked the men to use Genie lifts without outriggers;
rather, he constantly told the men to put use the outriggers.
He never asked any of the men to walk steel without being
tied off, or to erect the containment curtain without being
tied off; rather he warned them not to do these things when
he observed them committing such or similar safety viola-
tions. And he never instructed Robles or Crowley to cut safe-
ty corners so that the work would go faster.
Cook testified that he was reluctant to fire the men be-
cause initially most of them had demonstrated that they were
really good workers; he felt that they were a good crew be-
fore the slowdown, and believed that he could turn them
around.
f. Testimony of Superintendent Jim Alger
Jim Alger was appointed to the job of second-shift super-
intendent on August 31. Alger testified that he was advised
upon assuming the position that there were some problems
with a slowdown and that two people had been terminated.
He observed that painters would seen to wandering around
away from their work areas, spending time on the telephone,
and going to or coming from the bathroom.
On September 14, Cook reported the knife incident to
Alger and advised him that he had a meeting regarding the
incident with Bailey, Shelton, and Crowley during which
there was some name calling and threats. Alger told Cook
to contact Kesinger about the matter. Then, later that night,
Alger was advised that Boeing security, with flashing lights
and uniformed officers, was in the building. The lieutenant
in charge told Alger that they had received a report from
Steve Johnson that Crowley was threatening Shelton with a
knife. She wanted to talk to these people.
Later, Cook advised Alger that he believed the knife inci-
dent never happened, and that he felt this was a deliberate
act on Johnson’s part to get Crowley fired in retaliation for
Crowley’s firing of Blake and Todd, which events occurred
prior to Alger’s appointment as second-shift painting super-
intendent. Alger concluded from all he learned about the sit-
uation that this was a malicious act by Johnson, and in-
structed Cook to discharge him the next day. According to
Alger, he did not talk to Johnson about the matter, as John-
son had not been involved in the alleged knife incident, and
therefore anything that Johnson might have had to say could
have made no difference. He told Cook not to fill in the rea-
son for Johnson’s termination on the separation notice, as
this would be related during the union grievance procedure
which Alger anticipated.15 After Johnson was fired, he and
Bailey and another steward, Myron Peterson, came into
Alger’s office and asked why Johnson had been fired; Alger
said it would be taken up in step one of the grievance proce-
dure.
At a subsequent meeting with Cook and Bailey, Alger told
them that things seemed to be getting out of hand and that
if these matters could not be settled ‘‘in-house’’ it would
probably lead to getting rid of all the painters and Austin
was thinking about contracting the work out. He never told
Bailey not to go to his business representative. Things did
not improve, and Alger learned of several threats that were
made to the painters by their own membership with regard
to the payment of dues and the making of statements against
the Company. On Thursday, September 17, one of the paint-
ers, Ty Miles, approached him and said that some of the
union members were really bothering him about not joining
the work slowdown. Alger invited him to the office and gave
him a legal pad to write out a statement about this. Alger
and Cook were in an adjoining room while Miles was in the
process of preparing the statement when Shelton entered the
office. Shelton was looking over Miles’ shoulder and it ap-
peared that he was trying to intimidate him, as Miles seemed
to be trying to cover up the paper. Shelton did not know that
anyone else was in the office and, according to Alger, ap-
peared startled when Alger entered the room and asked him
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Alger did not specifically explain what he meant by the term
‘‘sabotage.’’
17 Robles, according to Becker, was a hard working foreman and
was ‘‘a little high strung,’’ but did not yell at the men.
what he was doing there. Shelton replied that he was looking
for his paycheck. Alger told him to go back to work and that
he would receive his paycheck from his foreman who would
bring it to him as he always did.
When Shelton left, Miles appeared frustrated and told
Alger that he felt that management was obligated to protect
him. Alger discussed all the problems with Cook and it was
decided that the slowdowns, the ‘‘sabotage,’’16 all the things
that were happening on the work platform, were enough, and
that Alger was going to fire all of those involved. Alger, who
was new to the shift and was the responsible onsite rep-
resentative of the Respondent, evaluated the situation and be-
lieved that the problems seemed to be escalating; he felt that
if he did not take an immediate and firm stand, somebody
was going to get hurt out there.
The Respondent introduced into evidence labor cost re-
ports showing the number of hours spent by the painters to
complete the high bay painting in various buildings. The re-
ports, detailing the number of man-hours it took to paint var-
ious buildings, coupled with the testimony of various wit-
nesses who testified that the painting of the buildings to be
compared was of equal difficulty, show that it took the crew
considerably fewer man-hours to paint comparable buildings
after the date of September 19.
g. Testimony of employee Becker
Stan Becker was hired in March as a painter on the second
shift. He was a flier on a swing stage. He is a member of
the Union. On August 4, he was made a foreman in another
area of the building not involved herein. At the time of the
hearing he was no longer a foreman, but was a rank-and-file
painter. Becker testified that when the amount of overtime
was reduced the men decided to engage in a slowdown, and
that the slowdown was also for the purpose of attempting to
get Cook to hire more men for the painting of the lower truss
work, as this was work the fliers did not like to do.
Becker testified that at a meeting of the crew, Todd said
that the men ‘‘were going to ‘group fuck’ them, we’d done
it before and we’ll do it again.’’ After that, the painters en-
gaged in a slowdown by taking long breaks and lunches, by
taking 45-minute bathroom breaks, and by failing to take the
stages up before the first break (2 hours after the beginning
of the shift). Becker testified that if one man on the swing
stage took a long bathroom break, this shut down the entire
operation of the stage for that period of time. In addition to
Todd, Steve Johnson and Jim Blake were also the ones who
were attempting to set the pattern for the slowdown by trying
to keep all the stages from completing more than three bays
a night, although some bays were much easier to paint than
others. According to Becker, the fliers were capable of paint-
ing four or five bays a night if they tried hard. The men
blamed Cook for the loss of their overtime, and also did not
like the fact that Cook had appointed his father, Lonnie
Cook, to the position of foreman. Blake and Todd applied
the peer pressure when Becker began working on the plat-
form: They would tell him not to go up on the stage before
first break, and if Becker was prepared to go up, they would
stand there and shake their head, indicating ‘‘no . . . don’t
do that.’’
Becker admitted that he, too, participated in the slowdown
which started about the beginning of July. He said that he
‘‘would clean my mask, stand around, play mumbledy-peg—
that’s throw our knives into the deck. Just more or less stay
out of sight, out of mind, you know.’’ Also, the men would
stay away from Robles who was working on the other side
of the platform, but when Robles saw them he would tell
them to get to work.17
Becker testified that the lower truss work would have to
be done off a ladder from the platform, because the foremen
would not let the men walk the steel; the ladder would have
to be moved about every 6 feet. This was a lot of work. The
men did not want to do it; they thought they were better than
that. Therefore, they wanted to force Cook into hiring more
painters to do the lower truss work so they would not have
to get out of their stages. Most of the lower truss work was
done by Becker, Daryl Smith, Don Curtis, and Gary Johnson.
At one of the meetings of the fliers, which was held pur-
suant to management’s direction in order to discuss some of
the problems the men were having, Todd said that the fliers
were irreplaceable, that they were in short supply and great
demand, and that management could not find anybody else
to do the job.
Becker testified that he was never asked to walk steel, and
that the foremen told the men to stay tied off at all times.
However, according to Becker, the men did not follow the
safety rules because ‘‘steel painters got this macho image
that they could do anything. Walking steel is just part of the
trade.’’ When foremen saw this, the men would get in trou-
ble for it and would be made to get down and get tied off.
If somebody important was coming, they would just tie off.
Todd and Blake were the biggest offenders; they never had
their safety lines hooked up; and they would smoke in their
stages, which was against the rules. Todd would have fog
wars with his paint thinner, which is highly volatile. He
sprayed it in the air and on the plastic, and tried to squirt
his partner with it. Also, the fliers would shake their rigging
loose from the ceiling beams instead of using the Genie lifts
to get it down, as this was the fastest and easiest way to do
it. The foremen never told them to do it this way.
Becker testified that when overtime was eliminated, Cook
told the men that he would try to get Boeing to retain the
60-hour workweek if they quit laying down on the job. The
fliers had a meeting and agreed to quit the slowdown and to
get the work done. According to Becker, they did do this.
After August 4, when Becker became a foreman, he
worked on the graveyard shift from 11:30 p.m. to 7 a.m. The
second-shift painters had been instructed to drop their spray
guns out of their stages to make it easier for the next shift.
However, they did not do this; rather, they would take their
hoses and wrap them around everything to interrupt the abil-
ity of the next shift to do the job. According to Becker,
‘‘You’d have to be doing a square dance up there with them
stages to do some of the things they were doing with them
hoses. That showed me they were just trying to disrupt my
job.’’ However, Becker did not report this to higher super-
vision. He testified that:
403AUSTIN CO.
I’m a union man, these are my brothers, we’re both
painters. . . . I had a job to do, and my job was to get
these things done. If I went to my supervisor and
whined to him that these guys are doing these things
and I’m not being able to foreman my job, that makes
it look like that I’m not capable of handling a super-
visor’s job.
However, he did make a number of attempts to talk to his
friends on the second shift out in the parking lot. He told
them that the slowdown was not going to do any good, and
that they were going to lose their jobs.
h. Testimony of General Superintendent Richard White
Richard White, general superintendent on the high bay
project, testified that in early July he did not tell an em-
ployee that the Company would separate three troublemakers
by forcing them to quit or walk off the job. He also denied
telling Business Agent Kesinger and Shop Steward Bailey
that Crowley did not fire Blake and Todd, but rather that Pe-
terson did, and that there was nothing White could do about
the matter.
Further, White testified that he never told Kesinger or Bai-
ley that if anyone crossed a caution tape the individual would
be fired. The one person who had been discharged after
crossing a caution tape was discharged not for crossing the
tape, but for walking across fresh concrete, which had to be
refinished.
i. Testimony of Foreman Brian Crowley
Brian Crowley testified that he began working for Austin
in April 1992, and voluntarily left in February 1993. He was
first working on Lonnie Cook’s crew, and was assigned to
Robles’ crew as a pot tender. At this time the painters were
working from 60 to 74 hours a week in order to keep up
with the schedule of the rolling work platform. Later, in
about the latter part of June, Crowley became foreman of the
tower crew. After the announcement in July by Cook that
work on the next building would be limited to 60 hours per
week, he observed that the work of the high bay crew and
the tower crew was not going well: It was not on schedule,
and the men would come nowhere near to getting the work
done. Cook had a meeting with the men, and an agreement
was reached to end the slowdown. It was agreed that the
men could be responsible for discipline within their own
ranks, and that Robles and Crowley would stop ‘‘bird-dog-
ging’’ them.
Within the next day or so Cook announced that he had
been notified that Boeing was going to terminate all overtime
as soon as building 40/35 had been completed. Cook told the
men at a meeting that continuing the slowdown would not
get their overtime back and would not accomplish anything,
and said that if the men completed the next two divisions on
schedule he would do his ‘‘damnedest’’ to try to get Boeing
to permit Austin to continue with the 60-hour workweek.
The men discussed it and agreed to pick up production and
finish those next two divisions on schedule, which, according
to Crowley, they did do. The final division of building 40/35
was completed on August 5. Later that week Cook told the
crew that Boeing had decided not to extend the overtime
work, and from then on they would be working only 40
hours per week.
On August 20, Cook assigned Todd and Blake to
Crowley’s crew. Crowley had them prep steel in the stair-
wells. What is needed for this work is a putty knife or a
scraper, and a duster, such as a small broom. Crowley as-
signed the men to different work stations. Todd said that he
did not have a duster, and Cook said he would bring him
one. He took Blake to another location and Blake said he did
not have any tools. Crowley told Blake he was required to
have tools and found a piece of angle iron on the ground and
gave it to him as a temporary scraping tool. Blake refused
to accept it and said, ‘‘You’ve got to be kidding.’’ Crowley
said it was fine, and Blake said he was not going to accept
it. Crowley told him to remain there in the stairwell and he
would get him what he needed. He called in on the radio and
told Cook that Blake had no tools, and Cook replied that he
had a couple of scrapers in his desk drawer. Thereupon,
Crowley brought Todd the items he needed, and went to the
area where Blake was supposed to be working in order to
give him the scraper. Blake was not there. After spending
about 15 minutes looking for him, Blake finally appeared
and said he had gone to the bathroom. Crowley gave Blake
the tools that he brought for him, and Blake refused to ac-
cept them. Crowley reported this to Cook on the radio. Elrod
overheard the communication and said that if Blake refused
to do his assigned job he should be terminated. Blake over-
heard this and said that he wanted to talk to his business
agent. Crowley said he could call the business agent from the
trailer.
Elrod and Cook were in the trailer when Crowley and
Blake arrived. Blake said that he had not refused to work.
He said that he considered his assignment to constitute har-
assment. Cook said that he was not being harassed; rather,
he was taken off the swing stage because he was slowing
down work and disrupting others who wanted to work; then
he was placed on the rolling work platform where he contin-
ued to disrupt the work; and finally he had been moved to
Crowley’s crew in the hope that he would ‘‘shape up.’’
About this time Todd walked in and said that he considered
his job to be punishment. He asked Elrod whether he agreed
with what Cook had done: taken experienced fliers and re-
placed them with inexperienced painters. Elrod said that
Robles had informed him that Todd was slowing down his
work and disrupting the work of others. Elrod said that he
could just not allow that to happen, and he could not allow
Todd’s disruptive activities to affect his partners. Todd then
said: ‘‘What you’re saying then is we were moved from the
platform because of production and safety.’’ Elrod said that
‘‘[s]afety has nothing to do with it, it’s not an issue here,
what is an issue is your productivity.’’ The meeting ended
and Todd and Blake went back to work.
A short time later Crowley went over to where Blake was
supposed to be working, and, again, could not find him.
Later, Crowley found him talking to Safety Engineer Steve
Lotz. Crowley told him to go back to work, and Blake said
he was waiting for his business agent. Crowley said that
Cook was going to bring the business agent to him, and to
go back to work. Blake refused. At that point Crowley called
Elrod who instructed him to get Blake’s badge and hard hat
and send him home. At that point Crowley terminated Blake.
After that Crowley was making his rounds and observed
Todd talking with an apprentice. He asked Todd what he was
doing, and Todd said he was talking. Crowley told him that
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he should be working, and Todd turned and headed back to
the stairwell. Later he saw Todd talking with another person,
and again instructed him to go back to work. Todd refused,
saying that he refused to do punishment work. Crowley said
it was not punishment work, and gave him the option of re-
turning to work or being terminated. Todd elected not to go
back to work, and Crowley discharged him.
Crowley testified that after August 20, the quality of the
work did not improve; in fact, according to Crowley, it got
worse. Crowley had eight men on his crew. He had given
Shelton and Ford a ‘‘free hand’’ to work on the tower sec-
tion; they were essentially to act as his lead men up there,
and were to advise him of any particular problems. After
about a week, Crowley saw that the work was not being fin-
ished; they were way behind, and the quality was poor. He
told them that ‘‘it was the most pathetic example of journey-
man-level painting he had ever seen.’’
He again met with his crew on about September 8, and
told them that things had to improve. He told Shelton that
no work was being done in the section that he and Ford were
responsible for, that Shelton had ‘‘better fix it,’’ and that
‘‘[i]f I have to spend the whole night up here baby sitting
people, I’m prepared to do that, but I’d rather not do that
because you’re men, I know you’re capable of getting this
job done, if you want to.’’ Shelton did not respond. The next
day, September 9, he invited Bailey to walk through the area,
and pointed out the sloppy workmanship. Bailey agreed that
it looked pretty bad. Crowley told the crew that he knew
what was going on, and that if it did not stop he was going
to make some adjustments. He said that he wanted to find
out who was responsible, and that when he did he would fire
them.
On Friday, September 11, Crowley told Ford and Shelton
that there was some painting work to finish up; he told them
that he had talked with the carpenter foreman on the job who
said that he had left some decking beneath an area that the
tower crew had not painted, and had placed caution tape
around the decking because there was no railing around it.
He assured Crowley that the deck was safe for the men to
use as a platform. Crowley told Ford and Shelton that it was
particularly important that they paint the conduit in this area
immediately, as the carpenter foreman had advised him that
he was going to be taking down that decking, and the con-
duit was in a location that it would be very difficult to paint
without the decking being in place. He told them that the
decking was safe and sound. This was about 4:30 p.m.
Crowley did not return to the area until about 10:30 p.m.,
some 6 hours later. The conduit area had not been painted.
He asked Shelton why this had not been done, and Shelton
said that Shop Steward Bailey had told him not to do it.
Crowley located Bailey and asked him why he told the men
not to do the painting, and Bailey said he told them not to
cross the yellow caution tape. Crowley explained his earlier
conversation with the carpenter foreman, and told Bailey that
the decking was safe. Then he went back to Ford and
Shelton and began instructing them on the procedures he
wanted them to follow to do the work. They had to be tied
off because there was some ladder work to be done close to
the edge of the decking. He told them that he was their boss
and they were going to follow his instructions, not the in-
structions of Bailey. He also told them that if they were con-
cerned about safety matters they should come to him or to
the safety department rather than Bailey. Shelton told Crow-
ley that he was concerned about crossing the yellow tape be-
cause he thought he could be fired for doing that. Crowley
told Shelton that he would never ask him to do anything he
considered unsafe, and that the carpenter foreman had as-
sured him it was okay to work behind the caution tape. He
explained that it was permissible to cross the yellow caution
tape and that it was not typical that men would be fired for
crossing it; rather, it was the red ‘‘danger’’ tape that they
should never cross. After that, Shelton and Ford apparently
did the work, as assigned.
The following Monday, September 14, at the beginning of
the shift, Bailey approached Crowley and said that he did not
appreciate Crowley telling the men not to talk to him. There-
upon, Crowley admonished Bailey, and said that he did not
tell the men not to talk to him; rather, he told them that he
was their boss and they would do what he told them to do,
not what Bailey told them to do. He said he did not mind
Bailey’s safety concerns, but he objected to the fact that Bai-
ley, by telling them not to cross the caution tape, was inter-
fering with work. Bailey denied that he told them this, and
‘‘left in a huff.’’
The regular Monday toolbox meeting was held shortly
thereafter. Cook mentioned that a couple of painters were
concerned about being fired for crossing a yellow tape, and
reiterated what employees were told when they went through
safety orientation, namely that yellow caution tape means
you can work behind it but you have to be cautious and care-
ful; further, Cook reminded the men that they should never
cross a red tape under any circumstances, and that they could
be fired for doing so.
Immediately after the toolbox meeting Crowley happened
to see Shelton. He asked how he was doing, and said, ‘‘Hey,
Chuck, are you going to file a grievance against me for ask-
ing you to cross that yellow tape?’’ Shelton said no, and
added that it was Ford, not Shelton, who did not want to
cross the tape. Crowley testified that he had nothing in his
hand and did not threaten Shelton with a knife. He saw Ford
and Steve Johnson pushing a swing stage on a dolly, and he
yelled to Ford, asking him the same question. Johnson and
Ford glared at him but did not say anything.
Crowley testified that he asked the question to the men be-
cause it seemed ridiculous to him that they did not do ex-
actly what he told them to do, that their failure to do the
work was not for a legitimate reason and was part of the
slowdown, and that there was something going on because,
earlier, Bailey had claimed that Crowley told the men not to
talk to him. Crowley testified that ‘‘[i]t seemed that there
was a big deal being made out of the tape incident, and
that’s essentially what prompted me to ask the question.’’
Later that evening he was called into Cook’s office. Bailey
and Robles were present. Cook said that Bailey was accusing
him of pulling a knife on Shelton. A yelling match ensued,
and Crowley told Bailey that if he did not ‘‘shut the fuck
up I’m going to take you out in the parking lot and I’m
going to kick your ass.’’ Bailey began daring him to hit him.
Then Shelton was brought into the room, and said that Crow-
ley had threatened him with a knife. Crowley said that this
was ‘‘bull shit and a lie,’’ and that the reason that this false
accusation was being made was because (several days ear-
lier) Crowley had reprimanded Shelton and had told him that
405AUSTIN CO.
18 In addition, Kesinger handed Cook separate letters, dated Sep-
tember 17, appointing Shelton and Ford as job stewards as of that
date.
he was lying down on the job and doing shoddy work.
Shelton denied this. Cook put an end to the meeting.
Crowley explained that he and all painters carried knives,
that a knife was an essential tool of the trade. Indeed, a few
days earlier, he and Shelton had cut plastic with Crowley’s
knife. Boeing security sent Crowley home on the night of
September 14, and the Respondent brought him back to work
on September 16. Paint production did not improve. On the
next day, Cook asked Crowley to prepare a list of the paint-
ers on his crew he believed to be involved in the slowdown.
4. Other evidence
a. Grievances
Four grievances, prepared by Kesinger,18 were handed to
Cook by Kesinger on the night of September 17, two by
Shelton and one each by Ford and Bailey. Ford’s grievance
is identical to one of the grievances filed by Shelton, namely:
Nature of Grievance: Brian Crowley, Foreman for
Austin Company, instructed Chuck Shelton to cross into
a ‘‘caution taped or concealed area’’ at that point
Chuck sought out Joe Bailey, Job Steward, to advise on
procedure of entrance into the said area. Joe Bailey, Job
Steward, advised him to follow the direct order of
Brian Crowley, Foreman for Austin Company, which
resulted in reprimand of Chuck Shelton for consulting
the Job Steward.
Adjustment Requested: That foreman and Company
personnel of Austin Company stay consistent with
Company policy and procedure. And the crew has the
right to seek consultation from the Job Steward when
deemed necessary without reprisal.
The second grievance filed by Shelton is as follows:
Nature of Grievance: On September 14, 1992, Brian
Crowley, Foreman for Austin Company, asked numer-
ous times during the day if I had intended to file a
grievance over Friday, September 11, 1992, incident
with Crowley. I, Chuck Shelton, commented that I
hadn’t made any decision yet. Brian Crowley became
violent at one point an pulled a knife of myself.
Adjustment Requested: Austin Company Personnel
stay consistent with Company policy and procedure.
That Brian Crowley be removed from Foreman status.
The grievance filed by Bailey is as follows:
Nature of Grievance: Brian Crowley, Foreman for
Austin Company threatened the Steward (Joe Bailey)
with bodily harm after several situations of verbally ac-
costing the Steward.
Adjustment Requested: Steward to be allowed to do
his duties without any more interference from the fore-
mens [sic]. Also, the foremen to cease quizzing the
crew to the context of discussions between the crew
and the Job Steward.
b. The WSHA investigation
Mathew Stroud is a safety and health specialist for the
Washington State Department of Labor and Industries
(WSHA). Upon receiving a written complaint from Todd in
August, Stroud was assigned to investigate it. The complaint
lists nine ‘‘hazards’’ which are alleged to exist in the work-
place. Essentially, they encompass all of the safety concerns
raised by Todd as set forth above. Stroud contacted the Re-
spondent and asked for a response to the complaint. He re-
ceived lengthy written responses from various individuals.
Then, on September 2, Stroud proceeded to make an onsite
inspection during the first shift, because the complainant said
that the foremen never do anything wrong if there is a safety
person on the site watching them. Apparently he checked out
the equipment alleged to be defective. During this visit he
talked with Shop Steward Bailey and other employees. Then
he obtained a list of second-shift employees from Controls
Manager Toole, and made phone calls to several of those in-
dividuals. He spoke with employees Todd, Bailey, Donald
Curtis, Gary Johnson, Ronald Ruther, and Robert Seagle.
Only Todd and Bailey were willing to put anything in writ-
ing and, according to Stroud, most of Bailey’s information
was simply hearsay.
Stroud testified that of the employees he spoke with, both
onsite and by phone, some agreed with some of the alleged
violations, some disagreed, and some had no knowledge, but
most of what they had to say was hearsay. Stroud concluded
his investigation and, as he did not observe any violations
and none of the employees with the apparent exception of
Todd was willing to put anything substantive in writing, the
complaint was dismissed.
5. Analysis and conclusions
I conclude from abundant record evidence that the paint-
ers, rather than their foremen, ignored the various safety re-
quirements they were continually requested to follow. The
work was difficult, the safety equipment was cumbersome
and often a nuisance, and many of the men felt that they did
not need to be constrained, either physically or otherwise, by
such equipment or rules. They were continually reminded of
the Respondent’s considerable concern for on-the-job safety,
they worked under a collective-bargaining agreement which
specifically required the Respondent to assure safe working
conditions for its employees, and they had a second-shift
union steward and a grievance procedure to protect them
from foremen who may have requested that they perform
work in an unsafe manner. Further, if any legitimate safety
matters were brought to the attention of the formen or the
safety department, such matters were immediately inves-
tigated and resolved. Indeed, on one occasion employee
Daryl Smith believed that a work assignment given to him
by Robles was dangerous, and contacted his union steward
about the matter. An accommodation was reached, and there
is no evidence of any resulting harassment. I find that no
safety grievances were filed because the foremen did not re-
quest or demand that such rules be ignored; rather, the em-
ployees elected to ignore the stringent safety regulations re-
quired of them for a variety of reasons which had nothing
to do with fearing retaliation by their foremen.
I find that the painters, at first led by Todd and Blake, and
then, after their discharge on August 20, by Steve Johnson,
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 The record evidence shows that while Robles was a foreman,
he was also considered to be a ‘‘union man,’’ even to the extent that
Union Steward Bailey enlisted him to collect union dues from the
men. Thus Bailey testified about Robles: ‘‘He’s in the Union; he’s
supposed to be a brother—I asked him if he would go see these indi-
viduals so I could keep working. And he said that yes, he would.’’
Thus, it appears that to a considerable extent, the men were not re-
luctant to take Robles into their confidence.
20 The fact that Safety Engineer Evans, who attended the August
14 meeting, did not so testify does not cause me to doubt the credi-
bility of the named individuals. Evans admitted that his recollection
of the meeting was ‘‘somewhat minimal.’’
had made a determined effort and, in effect, entered into a
conspiracy to retaliate against management. This took many
forms and it was motivated by a variety of biases against the
foremen. Although different employees may have had differ-
ing reasons for so participating, including, as Becker testi-
fied, peer pressure from their leaders, nevertheless they joint-
ly engaged in a slowdown and caused the Respondent added
expense as a result of their failing to complete the divisions
on schedule. It is clear, and I find, that subsequent to Sep-
tember 18, when the remainder of the employees involved in
the slowdown were discharged, the work was completed in
a timely fashion. Moreover, it appears that in performing
such work the members of the new crews were not being
caused by Cook, Robles or Crowley to ignore the safety
rules, as there is no record evidence of such conduct, nor
were any safety related grievances filed thereafter.
I find that the discharges of Todd and Blake on August
20, were for the reasons given by the Respondent; namely,
they had been the leaders of the slowdown to that date, and
refused to perform the work in the stairwells as assigned.
Contrary to the complaint allegations, I do not find that they
were removed from the swing stages or, thereafter, from the
platform for reasons relating to their safety complaints. In
this regard, I credit the testimony of those witnesses for the
Respondent, namely, Toole, Lotz, Robles,19 Cook, Crowley,
and Becker, who testified either that they observed Todd and
Blake slowing the job down, or that Todd directly told them
that he was slowing down the job.20 In this regard, it appears
that Todd had his own agenda and, in addition to other mo-
tives for his catalogue of complaints to Toole, he sought to
be appointed to the position of foreman; apparently, he be-
lieved that advising Toole of his ability to affect the progress
of the work would benefit him in this effort.
I have carefully considered the testimony of Foreman
Brian Crowley and Charles Shelton, together with the other
record evidence bearing on the alleged knife incident on Sep-
tember 14. Thus, several days previously, Crowley admon-
ished Shelton, telling him that he was slowing down the job,
that his work was poor, and that he would be discharged if
such deliberate conduct did not stop. Further, on September
11, he had warned Shelton about refusing to cross the cau-
tion tape to paint the conduit. Thus, Shelton had a motive
to falsely accuse Crowley of threatening him, namely, to pro-
tect himself from what had befallen Todd and Blake a month
earlier. In addition, Shelton, according to his own testimony,
related the alleged knife incident only to Ford, and appar-
ently did not believe the matter was of sufficient significance
to report it to higher management or even to Bailey.
Shelton’s immediate reaction to allegedly being threatened
with a knife by his foreman would appear to be inconsistent
with the expected reaction of a reasonable person under simi-
lar circumstances.
In contrast, Crowley appeared to be a highly credible wit-
ness. And, in handling the ‘‘caution tape’’ incident, he dealt
with Shelton, Ford, and Bailey, I find, in an entirely reason-
able and appropriate manner. Under these circumstances, it
is highly unlikely that, absent any history of clearly erratic
behavior, Crowley would have blatantly threatened an em-
ployee with a knife, thus jeopardizing his job and perhaps
even being subjected to criminal sanctions, in order to intimi-
date him from filing some clearly nonmeritorious and even
bogus grievance. This is particularly true given the fact that,
according to Shelton, he did not even imply to Crowley that
he intended to file a grievance; rather he nonchalantly an-
swered Crowley’s question about the possibility of a griev-
ance by stating, ‘‘Brian, let’s just forget about it.’’ That this
rather amicable response prompted Crowley to pull a knife
on him seems highly unlikely. Under all the related cir-
cumstances, I credit Crowley’s testimony in its entirety and,
in particular, find that he did not in any manner threaten
Shelton with a knife on September 14 or at any other time.
Having determined that Crowley did not so threaten
Shelton, the subsequent scenario as to the possible involve-
ment of Shelton, Ford, and Johnson in a contrived conspiracy
becomes a matter of speculation; however, this matter need
not be resolved herein. Whatever may have transpired among
these men, it is clear that Johnson, who had no involvement
with the knife incident or with Crowley’s admitted challenge
to Bailey to fight him in the parking lot, in effect elected to
take matters into his own hands because, as he so stated, he
had no confidence in Shelton, Bailey, or the Union, and be-
lieved that whatever action they decided to take would not
be satisfactory to him. Thereupon, according to Johnson, on
his own volition, some 6 hours after the alleged knife inci-
dent and, apparently, a considerable amount of time after the
meeting between Crowley and Bailey in Cook’s office, he
believed the matter to be of such immediate volatility that he
called Boeing security.
Johnson’s avowed reasons for summoning Boeing security
that night are not persuasive. I conclude, from all the sur-
rounding circumstances, that he was simply attempting to
find a way to remove Crowley as a foreman and/or to embar-
rass him or cause him mental anguish in order to get even
with him for discharging Todd and Blake, Johnson’s friends
and former partners in the slowdown. In this regard, I credit
the testimony of Robles, who stated that as he was bringing
Johnson down to speak with Boeing security, Johnson said,
‘‘I’ll get even with Brian Crowley; and I called security on
him; and he’s just as guilty as . . . pulling a knife’’; further,
during this conversation, Johnson specifically told Robles
that by calling Boeing security he was getting even with
Crowley for ‘‘railroading’’ Blake and Todd. Accordingly, I
conclude that the conduct in which Johnson engaged was for
no legitimate purpose. Rather, it was undertaken for vindic-
tive reasons which do not come within the purview of union
or protected concerted activity; indeed, it appears that neither
Bailey nor Shelton were even contemplating such action, and
they did not testify that they so authorized Johnson to act in
their behalf. I find that Johnson, who admittedly had no con-
fidence in either Bailey or Shelton to handle the matter as
407AUSTIN CO.
21 See Meyers Industries, 281 NLRB 882, 885 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), where the
Board stated: ‘‘In general, to find an employee’s activity to be ‘con-
certed,’ we shall require that it be engaged in with or on the author-
ity of other employees, and not solely by and on behalf of the em-
ployee himself.’’
22 Even in the absence of such conduct it appears that Johnson’s
discharge was imminent, as he was recognized by management as
the leader of the slowdown upon the discharge of Todd and Blake.
23 I credit the testimony of Cook and Alger in this regard.
24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
25 To the extent that Bailey’s testimony differs from the testimony
of Respondent’s witnesses, I credit the witnesses for the Respondent.
Johnson deemed best, was acting entirely on his own.21 I
therefore find that the discharge of Steve Johnson on Sep-
tember 15, was not violative of the Act, as alleged.22
I conclude that Shelton, Ford, Sorter, and Smith, who were
discharged on September 18, had been continuing the slow-
down. In this regard, I credit the testimony of Crowley,
Robles, and Cook who stated that after repeated admonitions,
warnings, and even threats of discharge, the painters’ work-
manship and production showed no improvement. Finally,
with the attempt of Shelton to intimidate another painter,
Miles, who was in the process of writing out a statement in
the office regarding the slowdown,23 Superintendent Alger,
whom I credit, evaluated the situation and decided that some
action, other than further entreaties to the men to mend their
ways, had to be taken. Thereupon, he directed that the fore-
named individuals be terminated. I conclude that these indi-
viduals were discharged because they were participating in a
slowdown, rather than because of any union or protected
concerted activity in which they may have been engaged.
Accordingly, I shall dismiss the allegations of the complaint
pertaining to the discharge of these employees.
In determining whether the various discharges of the seven
individuals involved herein were violative of the Act, I have
applied the Wright Line test.24 Assuming arguendo that the
General Counsel has presented a prima facie case showing
that the named employees were discharged following their
participation in union or protected concerted activities, in all
instances the Respondent has sustained its burden of dem-
onstrating, by credible evidence, that the discharges were not
motivated by unlawful considerations, as alleged, but rather
were motivated by legitimate business considerations.
I credit the testimony of Richard White and find that he
did not tell an employee in early July that he intended to get
rid of three troublemakers by forcing them to quit or walk
off their jobs. I shall dismiss this allegation of the complaint.
I credit the testimony of Jose Robles, and find that in early
September he did not threaten Daryl Smith or any other em-
ployee by telling them that if grievances and safety concerns
were not dropped the Respondent would lay off the whole
crew. I shall dismiss this allegation of the complaint.
I find that on September 14, Brian Crowley did not unlaw-
fully interrogate employees about whether they were going to
file grievances over safety concerns, or threaten Shelton with
a knife because he was considering filing a grievance over
safety concerns. Such questions by Crowley to Shelton and
Ford were not made in an atmosphere of intimidation, but
were merely innocuous questions unaccompanied by any co-
ercive conduct; and, as found above, Crowley did not threat-
en Shelton with a knife. I shall dismiss these allegations of
the complaint.
It was made abundantly clear both by Johnson’s admission
to Robles, and by the Boeing security personnel, that John-
son had summoned them to the premises. This was widely
known; and the fact that one or more supervisors may have
asked about this, possibly to verify what Boeing security had
already divulged, does not constitute coercive interrogation.
I shall dismiss this allegation of the complaint.
I find that Crowley’s threat to fight Union Steward Bailey
out in the parking lot is not violative of Section 8(a)(1) of
the Act, as alleged. While Crowley admittedly made such a
statement during what may be characterized as a grievance
meeting, this was the spontaneous utterance of someone who
had just been falsely accused of a criminal offense, and the
argument between Crowley and Bailey was short lived, with
no further threats being made. Under the circumstances,
Crowley’s loss of composure is certainly understandable. I
shall dismiss this allegation of the complaint.
The complaint alleges that in early September, Bailey was
assigned the job of scraping stairs and painting bathrooms,
and was isolated from other employees, in order to discour-
age him from engaging in union and concerted activities.
While the Respondent has proffered no direct evidence in re-
buttal of this allegation, the record evidence shows that Bai-
ley had been hospitalized with a heart condition and that
when he returned to work on August 21, he was no longer
assigned to work on the platform, but rather was given the
job of scraping and dusting stairwells; thereafter, for a few
weeks, he was assigned the job of prepping bathrooms for
painting. The record does not indicate what work he per-
formed following the completion of the bathroom work, or
whether he returned to work on the platform.
Based upon the allegations of the complaint and Bailey’s
testimony, it appears that he was given certain jobs to per-
form in the tower and was taken off the platform for several
weeks in late August and early September. Thereafter, the
record does not indicate the nature of his work. At the date
of the hearing herein he had been employed as a painter for
2 years, and had continued to occupy the position of union
steward. There is no contention that the alleged discrimina-
tion against him continued after early September, or that the
Union filed any grievances regarding his being given job as-
signments in the tower for a period of time. Assuming
arguendo that Bailey was taken off the platform for a period
of time in order to keep him away from the other painters,
I find the evidence insufficient to show that this change in
assignment was in retaliation for any legitimate union activ-
ity in which he may have been engaged; rather, as indicated
by Vice President Peterson’s letter of September 18, it ap-
pears that the Respondent believed that Bailey had engaged
in activities which interfered with production.25 Therefore, I
shall dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3. The Respondent has not violated the act as alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
ORDER
The complaint is dismissed in its entirety.