James Walsh Construction Co.

National Labor Relations Board - Board Decisions

Jun 18, 1987

284 N.L.R.B. 319 (N.L.R.B. 1987)

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