Davis and Burton Contractors, Inc.

National Labor Relations Board - Board Decisions

May 7, 1982

261 N.L.R.B. 728 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis and Burton Contractors, Inc. and Seigle Bais-
den. Case 9-CA-15859
May 7, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On November 30, 1981, Administrative Law
Judge James J. O'Meara, Jr., issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions, a supporting brief, and an an-
swering brief to the General Counsel's cross-excep-
tions, and the General Counsel filed cross-excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Davis and Burton Contractors, Inc., Catlettsburg,
Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Designate the existing paragraph under "1" as
l(a) and insert the following as paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed under Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
As we are adopting the Administrative Law Judge's finding that Re-
spondent violated Sec. 8(aXI) of the Act by refusing to recall Baisden
from layoff because he engaged in protected concerted activity in picket-
ing Respondent, we find it unnecessary to determine whether Baisden's
complaining about Respondent's lateness in making fringe benefit pay-
ments was a further reason behind Respondent's discriminatory action.
261 NLRB No. 102
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to employ or reem-
ploy any employee in retaliation for his, her,
or their engagement in any protected concert-
ed activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
free choice of any of the rights set forth
above.
WE WILL offer Seigle Baisden immediate
and full reinstatement to his former job or, if
such job no longer exists, to substantially
equivalent position, without loss of seniority or
any other rights or privileges previously en-
joyed, and WE WILL make him whole, with in-
terest, for any loss of earnings he may have
suffered as a result of our refusal to reemploy
him after a layoff on September 6, 1980.
DAVIS AND BURTON CONTRACTORS,
INC.
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA JR., Administrative Law Judge:
The charge in this case was filed by Seigle Baisden on
September 22, 1980. The complaint, issued on October
20, 1980, alleged that Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by refusing to recall Baisden after a layoff because he
had engaged in a strike protesting Respondent's issuance
to him of a payroll check which was dishonored by Re-
spondent's bank and because he had concertedly com-
plained to Respondent regarding Respondent's failure to
pay employee health and welfare benefit contributions in
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DAVIS AND BURTON CONTRACTORS, INC.
a timely fashion. Respondent denies that it has violated
the Act.
A hearing was held in Ashland, Kentucky, on June 10,
1981. At the close of the hearing, oral argument was
waived. The parties were given leave to file briefs which
have been received and considered.
Upon the record in this case, including my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, Davis and Burton Contractors, Inc., is a
Kentucky corporation which maintains an office and
place of business in Catlettsburg, Kentucky. It is engaged
in the construction and building business as a contractor
in various States of the United States including the Com-
monwealth of Kentucky.
During a 12-month period immediately preceding the
issuance of the subject complaint, it had, in the course of
its business, purchased and received at its jobsites within
Kentucky products, goods, and materials valued in
excess of $50,000 directly from points located outside
Kentucky.
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that it will effectuate the policies of the Act
to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION
International Association of Bridge, Structural and Or-
namental Iron Workers, Local 769, AFL-CIO, is now,
and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Statement of Facts
Respondent, in the course of its business, undertook a
construction contract to remodel a steel mill at Kentucky
Electric Steel. The prime contract terminated on Sep-
tember 6, 1980, after which Respondent was engaged on
a "cost plus" day-to-day basis on the steel mill remodel-
ing job. During the period Respondent employed be-
tween 2 and 160 employees at various stages of the
work. Among the several trades so employed were union
ironworkers among whom was the Charging Party,
Seigle Baisden, a journeyman ironworker of 14 years' ex-
perience who was hired in March 1980 by Virgil Hen-
shaw, Respondent's superintendent. l
On September 6, 1980, Baisden and 11 other iron-
workers were laid off for economic reasons. During the
course of Baisden's tenure with Respondent, he learned
that certain payments by Respondent for employees'
health and pension benefits were delinquent which
caused him to be concerned that his health benefits
would lapse. He complained on several occasions to
Henshaw who expressed annoyance that Baisden had di-
Other ironworkers were employed upon the request of Respondent
to the "union hall."
rected his complaints to him instead of to his union busi-
ness agent.
Sometime in August, Baisden was notified by his bank
that a recent payroll check from Respondent had been
dishonored due to insufficient funds. The amount of the
dishonored check had been deducted from Baisden's ac-
count at his bank and Baisden was concerned that he
may have issued a "bad check" against this account. The
evening of the day Baisden received notice of the dis-
honored payroll check he contacted Audrian Payne, a
union steward, whom he told about the check and Re-
spondent's delinquency in benefit payments. He also told
Payne that he was going to set up a picket line at the
construction site the next morning. Payne unsuccessfully
attempted to reach Henshaw to advise him of Baisden's
complaint.
At 6 o'clock the following morning, Baisden set up a
"one-man" picket line at the main entrance to the jobsite.
He displayed a sign which recited "No Pay-No Work."
Other employees honored the picket line and the job was
shut down that day. Respondent, upon learning of the
picket line, met with Baisden and redeemed the dishon-
ored check. Baisden demanded that Respondent also re-
imburse him for any bank charges arising from the trans-
action and, upon Respondent's initial refusal to do so,
threatened to replace the picket line. Respondent acced-
ed to Baisden's demand. Baisden removed the picket line
but other employees who had honored the picket line
had left the premises and the job remained shut down for
the day. On the following morning Baisden returned to
work and continued to work steadily until the September
6 layoff. Respondent took no disciplinary action against
Baisden as a result of his strike action nor did it complain
to, or take action against, the Union.
Of the 12 ironworkers laid off on September 6, 10
were called back between September 12 and 17; only
Baisden and one J. Fields were not reemployed. Fields
was recalled but chose not to accept the recall. On Sep-
tember 8, Respondent advised the Union by letter that it
preferred "not to have" Baisden "sent to our job site at
Kentucky Electric Steel at any later date." Henshaw tes-
tified that Baisden was not recalled because he was a
"trouble-maker." Henshaw also characterized Baisden as
a good worker and a competent ironworker able to per-
form all the tasks required of a journeyman ironworker.
Henshaw stated that the reason for Baisden not being re-
called was "mostly for the picket line sign that was put
up at the gate, was the reason Baisden wasn't called
back. The fact for not recalling Mr. Baisden was that he
put up the picket line on the gate. That's the fact."
IV. DISCUSSION AND CONCLUSION
The General Counsel contends that the refusal of Re-
spondent to reemploy Baisden because he set up a picket
line violates Section 8(a)(X1) of the Act. Respondent
argues that Baisden's "strike" was in violation of the no-
strike clause of the union contract and thus "unprotected
activity," and also that Baisden's complaints about non-
payment of benefits should, under the contract, be pur-
sued under the grievance procedures of the contract.
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Picket Line
Baisden's "one-man" picket line was, as acknowledged
by the General Counsel, a violation of the no-strike
clause of the contract. Such conduct does not fall within
the protection of Section 7 of the Act. However, the
action of Baisden was "condoned" by Respondent. Bais-
den negotiated with Respondent during the "strike" re-
solving the dispute with Respondent who reimbursed
him for his monetary damages which arose from the dis-
honor of Respondent's paycheck. This, apparently, and
according to Henshaw, "settled the matter." Baisden re-
turned to work the next day and continued to work until
the layoff of September 6. No disciplinary action was
carried out nor threatened by Respondent. The fact that
Baisden's picket sign "No Pay-No Work" was honored
by fellow employees clearly makes the activity of Bais-
den "concerted." 2
Condonation in such circumstances is a question of
fact to be determined by, inter alia, the conduct of the
parties. The failure of Respondent to take any disciplin-
ary action against Baisden for his picket line which
caused the jobsite to be shut down for a day and his con-
tinued employment until the September 6 layoff are evi-
dence that Respondent had condoned whatever unlawful
aspects tainted Baisden's "picket line." It is reasonable to
conclude that Respondent had placed Baisden in the po-
sition which prompted him to take his action against Re-
spondent. It had issued a payroll check on an account
with insufficient funds. It is reasonable to conclude, and I
so conclude, that the default of Respondent prompted its
quick settlement with Baisden and its continuing to
employ him. I conclude from the foregoing that Re-
spondent did, in fact, condone the activity of Baisden.
The Board has held in Richardson Paint Company, Inc.
v. N.L.R.B., 574 F.2d 1195, 1202-3 (5th Cir. 1978):
Under the doctrine of condonation, the employer
may not . . . assert the unlawful aspect of the em-
ployees' actions as grounds for subsequent discharge
or discipline. Jones & McKnight, Inc. v. N.L.R.B.,
445 F.2d 97, 102 (7th Cir. 1971). "The doctrine pro-
hibits an employer from misleadingly agreeing to
return its employees to work and then taking disci-
plinary action for something apparently forgiven."
. . .With the employer's voluntary forgiveness of
the unprotected aspect of the employees' concerted
activity, this activity assumes a protected status.
It is clear on the facts of this case that the Company for-
gave the unprotected aspect of the acts of Baisden who
breached the no-strike provision of the collective-bar-
gaining agreement by walking off the job and picketing.
Respondent allowed this employee to return to work and
took no reprisals; thus, under the doctrine of condona-
tion, the walkout assumed protected status and any
reprisal would be illegal.
Accordingly, the refusal to recall Baisden, as it did the
other similarly situated employees, for the express reason
a One other employee also experienced a dishonored payroll check
issued by Respondent.
that he had set up a picket line, violates Section 8(a)(1)
of the Act.
B. Baisden's Complaints Regarding Benefit Payments
Since I have found that Respondent's refusal to rehire
Baisden because he engaged in unprotected, but con-
doned, activity violates Section 8(aX)() of the Act and
that such engagement was the reason for his nonrecall, it
follows, and I find, that Baisden's complaints to Re-
spondent about its delinquency in benefit payments to
the Union did not comprise the reason, nor a part there-
of, for Respondent's action. If it were not for Baisden's
"picket line" he would have been recalled. He was an
admittedly qualified ironworker and Henshaw candidly
acknowledged that he was not recalled, "because he set
up the picket line on the gate."
C. The Respondent-Union Contract
Respondent argues that the provisions of the contract
permit the employer to determine who should be em-
ployed and laid off and that it shall have the right to
reject any applicant referred by the local Union. Such
argument has no merit when the provisions of the con-
tract are construed to allow illegal activity. To interpret
the contract as Respondent would have it interpreted
would permit the terms of the contract to vitiate the pro-
visions of the Act. While the employer in this circum-
stance has the right to employ whomever it wishes, it
does not have the right to discriminate in such employ-
ment against one who has exercised rights guaranteed
him under the provisions of the Act. In this case it is
clear that Baisden's unlawful concerted activity was con-
doned by Respondent and his refusal to rehire Baisden
for the admitted reason that Baisden engaged in such ac-
tivity is a clear violation of Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act by refusing to
recall Seigle Baisden after his having been laid off be-
cause of his engagement in a protected activity.
3. The aforecited practice is an unfair labor practice
affecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, it shall be ordered that it cease
and desist therefrom or from engaging in any similar or
related conduct and that it take certain affirmative action
to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the record in this case, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
730
DAVIS AND BURTON CONTRACTORS, INC.
ORDER3
The Respondent, Davis and Burton Contractors, Inc.,
Catlettsburg, Kentucky, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from refusing to employ or reem-
ploy an employee because of the employee's engagement
in protected concerted activity.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Seigle Baisden immediate and full rein-
statement of his former job or, if that position no longer
exists, to a substantially equivalent position of employ-
ment, without prejudice to the seniority and/or other
rights and privileges enjoyed by such employee and to
make the said Seigle Baisden whole in accordance with
the formula prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest, as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), for loss of pay
and other benefits lost by reason of Respondent's unlaw-
ful refusal to recall said employee.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Preserve and, upon request, make available to the
Board or to its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel reports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order.
(c) Post in a conspicuous place at its jobsite located at
Kentucky Electric Steel Company copies of the attached
notice marked "Appendix." 4 Copies of said notice, on
forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
731