The Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

May 15, 1969

175 N.L.R.B. 1003 (N.L.R.B. 1969)

THE BABCOCK & WILCOX CO. 1003
The Babcock & Wilcox Company and Andrew J.
Fonville. Case 17-CA-3653
May 15, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
the Respondent because of his activities in filing
grievances against it, in violation of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended.
Upon the entire record in the case,' my consideration of
the briefs filed by the General Counsel and the
Respondent, and from my observation of the witnesses,. I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
On February 5, 1969, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, The Babcock & Wilcox
Company, Kansas City, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner : This case , heard at
Kansas City , Missouri , on November 21, 1968, pursuant
to a charge filed on August 21, 1968, and a complaint
issued on October 9 , 1968, presents the question whether
Andrew Fonville, the Charging Party, was discharged by
The Respondent excepted to the credibility findings made by the Trial
Examiner . It is the Board 's established practice, however, not to overrule a
Trial Examiner 's resolutions with respect to credibility unless, as is not the
case here , the clear preponderance of all the relevant evidence convinces us
that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
The Respondent, a New Jersey corporation, is engaged
in the manufacture, sale, and installation of steam boilers
and other equipment for the generation of electrical
energy. The Respondent installs its equipment throughout
the country and abroad. Involved in this case are the
Respondent's operations at the Sibley, Missouri,
powerplant of the Missouri Public Service Company,
where the Respondent has the subcontract for furnishing
and installing the electrical generating equipment for a
very large addition to the existing powerplant. In 1968 the
Respondent's shipments of materials and equipment to the
Sibley project from points outside of Missouri exceeded
$50,000 in value. Upon these facts I find that the
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Pipe Fitters Association Local Union No. 533 of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO (herein called the Union), is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent 's Discharge of Andrew Fonville
in Violation of Section 8(a)(3) and (1) of the Act.
1. Background
a. The powerplant structure
The addition to the Sibley powerplant is a large
irregularly shaped structure 80 feet wide and 150 feet
long. It is to house a steam generating unit which is 220
feet tall. The Respondent's work on the project includes
the setting in place of heavy machinery and the
installation of numerous very heavy pipes up to 30 inches
in diameter through holes in the floors. The structure is 12
levels tall and at the time of the events in question was
not walled in . Some of the open portions of the outside of
the structure had temporary protective handrails installed,
others did not. Frequently the employees had to work
outside the building from suspended plank scaffolds one
or two 12-inch boards wide. It was hazardous working on
narrow scaffolds and maneuvering large pieces of pipe and
machinery around the floors with the various openings in
them. Earlier in 1968 one employee stepped backwards
into an unprotected hole and fell to his death.
The stipulation correcting transcript executed by the General Counsel
and the Respondent is hereby approved and the record is deemed corrected
accordingly . The stipulation is included among the exhibits as G. C. Exh.
12.
175 NLRB No. 169
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The contractual arrangements covering the
Respondent 's employees at Sibley
The wages , hours, and other terms and conditions of
employment of the Respondent 's employees at the Sibley
project are established for the most part in the so -called
National Agreement , discussed below, but are governed in
a few respects by the Local Agreement between the Union
and the Mechanical Contractors Association of Kansas
City, Missouri, covering employees of members of the
latter on jobs within the geographical jurisdiction of the
Union, which includes the Sibley project . The Respondent
is not a party to the Local Agreement.
The Respondent is a party to the "National
Construction Agreement for the United States of
America" between United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada (herein called the United
Association), and various "National Constructors" who
operate on a nationwide basis . The National Agreement is
a complete collective -bargaining contract and provides for
the minimum wages and other terms and conditions of
employment applicable to the employees of the signatories
wherever they are working in the United States . However,
the National Agreement provides that wherever an
affiliated Local Union has in effect established a higher
wage rate , a shorter workday or workweek , or more
favorable holiday or vacation provisions , then the Local
Agreement shall prevail . The National Agreement then
provides as follows:
With respect to all other provisions of the local
agreement dealing with terms and conditions of
employment , other than hiring , the provisions of the
National Agreement shall prevail.
The Local Agreement does provide for more favorable
terms for the employees in certain limited areas where the
"National Agreement" provides that the Local
Agreements shall be controlling . However, for the most
part, the terms and conditions of employment of the
Respondent ' s employees are governed by the National
Agreement and not by the Local Agreement.
The Local Agreement covers the terms and conditions
of employment of the employees of the signatory
employers in much greater detail than the National
Agreement , limits the employers ' discretion in determining
the number of foremen required , and generally restricts
the employers ' freedom of action to an extent greater than
does the National Agreement . One of the specific
provisions of the Local Agreement provides that all work
performed on scaffolds more that 40 feet high and less
than 3 boards wide (approximately 36 inches) and without
handrails shall be paid for at double-time rate . I mention
this because one of the principal grievances filed with' the
Union by Fonville before his discharge was filed because
the Respondent neither maintained the type of scaffolds
described in the Local Agreement nor paid the
double-time rate called for high work in the absence of
such scaffolds . While , as found above, the Respondent
was not bound by this contractual provision , Fonville was
not aware of it . Fonville credibly testified that the
employees had asked to see the National Agreement but
could never get one to look at . Apparently neither Union
Steward Foster nor the Respondent 's general foreman,
Frye, who had the most to do with Fonville 's grievances,
were aware of the contents of the National Agreement.
Certainly their conduct is inconsistent with such
knowledge , for in two of the three grievances filed with
Union Steward Foster before Fonville's discharge, he
expressly referred to provisions of the Local Agreement.
But neither Foster nor Frye pointed out to Fonville that
the Local Agreement was not generally applicable to work
on the Sibley project.
C. The facts concerning Fonville 's discharge
Fonville went to work for the Respondent as a
pipefitter at the Sibley project in August 1967. Fonville
had been a member of the Union for 15 years and had
obtained his job through a referral from the Union.
Fonville worked steadily for the Respondent until his
discharge on August 7, 1968 , with the exception of a
7-week period ending on April 30, 1968, during which
Fonville was out due to injuries received in an automobile
accident.
During his employment Fonville had frequent
discussions with his fellow workers and with his foremen
concerning the Respondent 's failure to live up to certain
provisions of the Local Agreement which he mistakenly
believed were applicable to the work at the Sibley project.
Fonville also had frequently called the attention of
Foreman Charlie Bramble and Union Steward Foster to
the lack of scaffold boards and the absence of ropes in
certain areas he regarded as dangerous . According to
Fonville's undenied and credited testimony , Foster told
him that the Respondent had not furnished sufficient
scaffold boards to afford the protection which Fonville
was seeking.
On July 3, 1968, Fonville prepared his first written
grievance . It is as follows:
Local Union 533
Dear Sir,
Article 8, Section 1 Clause (H) says we are to receive
double time rate for 40 ' and above with free fall. This
is wages and workmen are to be paid the wages
applicable to work performed , under Article 5, Clause
6. This is the same type of wage as for Holidays
(Section 3) at double time for work . The only difference
is one is on Holidays and the other is above 40' with
free fall. Babcock & Wilcox has not complied with this
Section 1 , Clause (H) of the contract.
I therefore file this grievance with the steward in
accordance with Article 13.
Section 2-July 3, 1968
Member of Local Union 533
Andrew J . Fonville
On July 8, 1968, Fonville prepared a second document in
which he stressed the safety provisions of the Local
Agreement , and contended that they were being broken by
the Respondent every day, including the State safety laws.
In this document Fonville requested that if the
Respondent would not comply with the safety provisions
of the Local Agreement it should pay the double-time
premium for high work with a free fall. Union Steward
Foster testified that Fonville presented just one grievance
regarding high pay. In view of this testimony, and the fact
that Foster undoubtedly would have remembered if
Fonville had presented two grievances regarding high pay,
I am convinced and find that Fonville presented the July 3
and 8 grievances at the same time and that Foster
considered them as only one grievance.
According to Foster's credited testimony , he told
Fonville that his high pay grievance was wrong , that he
(Fonville) had seen the telegram on the bulletin board,'
'This was a reference to a telegram dated March 6, 1968, which had
THE BABCOCK & WILCOX CO.
and that the Union could not receive the grievance. As
Foster further testified, Fonville let the matter drop after
that.
Before discussing the second grievance filed by Fonville
with Union Steward Foster, it should be noted that about
July 1, 1968, the Missouri Public Service Company
discontinued its prior practice of permitting the
Respondent's employees to use the washrooms in the old
powerplant on to which the new structure was being
added, and thereafter the only water available to the
Respondent's employees was that in the drinking water
cans. Later on in July, while Fonville was grinding the
burrs off a weld, he burned himself. Fonville went to the
office for first aid. There was no water available to wash
the emery dust off the burn, so one of the foremen
sprayed a disinfectant over the burn, dust and all.
On July 17, 1968, Fonville prepared and filed with
Union Steward Foster the following grievance.
Local Union 533
July 17, 1968
Dear Sir,
Article VIII, Section I, Clause (1) of our contract
states that the contractor will furnish adequate potable
water and toilet facilities. I would like to know why we
can't have some type of facility to clean dirt and filth
and grinding dust off our hands & face, also there is no
facility for washing out dirt when it gets into the eyes.
Andrew J. Fonville
As Foster testified, he told Fonville that "there wasn't a
thing we could do about that. We had all that was
required."
After receiving each of the above grievances from
Fonville, Foster showed them to General Foreman Frye.
Each time Frye told Foster, as Frye testified, "There's no
grounds to carry it further. Just forget it." Although Frye
was in charge of two area foremen, and under them, a
number of crew foremen, Frye was a member of the
Union.
Fonville's area foreman, Dannie Lewis, was off from
work on July 25 and 26. Fonville was off from work for 2
hours on July 26. During this period Fonville brought up
with the other area foreman, Joe Holman, the subject of a
relief area foreman being named while Lewis was out. It
appears that Holman explained the Respondent's failure
to name a relief area foreman by saying that both Lewis
and Holman got paid for time off, and therefore the
Respondent could not pay another employee the area
foreman's higher rate. When Fonville received his next
pay, he found that he had not been paid for the 2 hours he
had been off from work. The area foremen, Lewis and
Holman, are hourly paid employees, like Fonville.
A few days later Fonville wrote out another grievance
at home, and on the morning of August 73 left his work
area and gave the grievance to Union Steward Foster,
who was working behind the general foreman's office, a
distance of about 100 feet from where Fonville's crew was
located.' This grievance is as follows:
been sent by Peter Schoemann , general president of the United
Association, disposing of a claim for high pay which had been raised
earlier by the Union In the telegram Schoemann stated as follows-
"Please advise Local Union that demand for high pay is an assessment to
wages contrary to the National Agreement "
'This is the testimony of Construction Superintendent McNevin and
General Foreman Frye. Fonville placed this in the afternoon of August 7.
It is immaterial whether this incident occurred in the morning or the
Local Union 533
1005
Dear Sir;
I Andrew J. Fonville, have reason to believe that
Babcock and Wilcox did discriminate against me on
July 25, 26, and the 30th. I was told by Joe Holman on
July 25th that Dannie Lewis would be paid when ever
he is off, and that he (Joe Holman) would also be paid
when he is off. It was for this reason that there was not
a relief area forrnan set up while Dannie Lewis was off
work. I was off two hr. July 26 and did not get paid.
Therefore I ask that the steward go with me and
check the record for proof of no discrimination this
date Aug. 7, 1968.
Dannie Lewis and Andrew Fonville are both hourly
employees.
Local Member 533
Andrew J. Fonville
According to Fonville's uncontradicted testimony, no
work was being done on his crew at the time he gave the
grievance to Foster. As he testified, "It had come to kind
of a standstill in-between one job and another and the
foreman was in the process of getting some information. I
forget exactly what."
After Foster had read the grievance, Fonville asked
Foster if he would go with 'him to see about getting an
answer. Foster agreed and the two men walked over to the
Respondent's office on the job, a distance of about 350
feet. Apparently not finding the man he was looking for in
the Respondent's office, Foster, accompanied by Fonville,
walked back to the general foreman's office. Still not
finding the man he was looking for, Foster, together with
Fonville, walked back to the Respondent's office and
spoke to Construction Superintendent McNevin, whom
Foster and Fonville had observed in the Respondent's
office on their first visit there.
After reading the grievance, McNevin stated that he did
not know whether Lewis had been paid or riot, but that,
as McNevin himself testified, ". . . as long as I paid the
Union scales, any additional that I wanted to give to any
person would be strictly between myself and that person."
McNevin's credited testimony continues as follows:
Mr. Fonville then stated that he thought I had the
office records and that by looking over the office
records they could determine whether Mr. Lewis was
paid or not. I told him that neither he nor Mr. Foster,
or anyone else without my company's permission,
would be able to look at those records.... He thanked
me, shook hands, and left the office.
Foster and Fonville walked back to the structure where
Fonville told Foster that "[he] thought [his] grievance was
answered," and Fonville walked up to rejoin his crew. The
distance from the Respondent's office over and up to the
location where Fonville was working was about 200 feet.
Fonville testified that he returned to his crew after being
gone about 15 minutes. In view of this testimony, and
taking into consideration the length of time it normally
would take to walk the distances involved, I find that
Fonville was not away from his crew for more than 15
minutes on this occasion. When he returned to the crew,
so Fonville testified, the condition of the job was "about
the same [as] it was when [he] left;" nothing was being
afternoon
'It is necessary to relate the facts concerning this incident, including
distances walked, in some detail because of the Respondent's contention
that the controlling factor in Fonville's discharge was his habit of absenting
himself from his crew and talking to other employees about grievances.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done "directly," and the other members of the crew "were
still kind of tinkering around."
Shortly thereafter Union Steward Foster approached
General Foreman Frye and told him, in Frye's words, "I
have got another of those goddam letters."
Later Construction Superintendent McNevin stopped
Frye as he was passing McNevin's office and told him, as
McNevin testified, that he had received "a very odd
request." He explained that Fonville and Foster had
talked to him and that Fonville "thought he had been
discriminated against because one man had been off the
job and received wages and he had been off the job and
didn't receive wages and requested to see his books." This
is Frye's testimony. Frye replied, according to McNevin's
testimony, that "That was not the first letter that had
been received," that "they had received quite a few," and
that he "was getting `fed up with that crap.' " Frye further
told McNevin, as McNevin testified, that "Fonville had
been going from gang to gang discussing various problems
or grievances and disrupting the gangs, and that he had
been warned about it . I told him that I didn't want it
going on."
In the early part of the afternoon Fyre called McNevin
and said to have Fonville's check ready at 4 p.m.
McNevin asked Frye what explanation should be put
down on the termination notice . Frye replied, as he
admitted , "Agitator on jobsite ."° The termination notice
given Fonville later stated , as the explanation for the
discharge, "Agitator on Jobsite Per Pipe Fitter General
Foreman."
Fonville worked the rest of the day. As he was leaving
the structure that day Union Steward Foster told him,
"You are fired." When Fonville inquired , "What for?"
Foster replied , "For agitating."` Fonville asked "where is
my money?" and Foster answered, "It is at the office."
As Fonville turned in his brass identification checks, the
man at the window motioned him to go in and get his
check . After doing so Fonville asked Mr. White, the pipe
fitting superintendent over General Foreman Frye, why he
was fired . White said that he did not know , and after
stepping into McNevin ' s office, came out and reported
that McNevin did not know either , and commented that it
was Frye who was responsible for his discharge.
'When Frye was first questioned by the General Counsel on direct
examination about this matter he responded as follows
Q. Did you discuss with Mr . McNevin about making out his check
and the reasons for the discharge? .
A Yes. When I called the office and requested his check he wanted to
know what to put down for termination.
Q What did you tell him?
A What was the word that was used , it wasn't very good , not a good
description . Probably it shouldn 't have been on there, but it did wind up
on there some how.
Q. Could it have been "Agitator on jobsite"?
A. I think that was the word that was used , but there again I say it
wasn 't a very good word.
On cross-examination Frye testified that he told McNevin to put the
following on the termination slip: "Agitation and causing disturbances
among the men " For reasons more fully explained below , I do not credit
Frye's testimony that he mentioned "causing disturbances" to McNevin.
`This is the testimony of both Fonville and Foster . Foster admitted that
he did not elaborate on what he meant by "agitating" when he gave this
explanation to Fonville However , Foster further testified that Lewis, the
area foreman , had previously given him as the reason for Fonville's
discharge "agitating and leaving the job like the foreman and the rest of us
had been talking about ." I do not believe this latter testimony. Area
Foreman Lewis was not called as a witness although , according to Frye,
Lewis played a role in Fonville 's discharge (see the discussion of the
Respondent's contentions below ) It is not likely , if in fact Lewis made
such an explanation , that it would not have been voiced at the time of
The next day Fonville went to the office of the Union
and filed a grievance against the Respondent with
Business Manager Robert Lanning for having been
discharged in violation of the contract. Lanning called
McNevin on the telephone. When Lanning hung up the
telephone he told Fonville that McNevin had said that he
had not discharged Fonville, that Frye had, and that he
did not know the reason why. Lanning then spoke to Frye
over the telephone. Fonville overheard Lanning say in the
course of this conversation, "I have not seen those but he
just handed me another one." Fonville's testimony
continues as follows:
. then when he hung up I asked him what he said,
and he said, "Well, Mr. Frye said he fired you for
agitating," and I can't think what else it was. Agitating
and - it is in my statement but I forget what it was.
Lanning then informed Fonville that he could not get out
to the project before the next day. Fonville was never
advised concerning the disposition made of his grievance.
d. The Respondent 's contentions concerning
Fonville 's discharge; conclusions
The Respondent contends that Fonville was discharged
for leaving his work area and disturbing the work of other
crews during working time. Fonville testified that the
Respondent had never criticized his work and that he had
never been warned about being away from his work.
Fonville explained, however, that occasionally he would be
away from his work area on errands in connection with
his job , such as going to get materials and tools . Fonville
also testified that there were occasions on which his crew
temporarily would have no work to do. On these
occasions , and at other times when he or his crew were
being shifted from one location to another , Fonville
admitted that he would chat briefly with the employees on
other crews.
The only witness called by the Respondent to testify
concerning Fonville 's leaving his work area was Charlie
Bramble, his immediate foreman from about the middle
of May to July 2. Bramble quit on July 2 and
consequently had no knowledge of Fonville's work habits
in the last 5 weeks of Fonville's employment . The only
other testimony concerning Fonville 's alleged wandering
away from his work area and disrupting the work of other
crews was brought out on the cross -examination of
General Foreman Frye, a witness called by the General
Counsel.
Bramble testified that "many times" he found Fonville
away from his work area, "filtrating around other crews
talking about high time, sanitation ,"' that this occurred
"two or three times a week, maybe twice a day," that he
discussed this "every day" with Fonville, and that while he
did not discuss Fonville's leaving his work with General
Foreman Frye, he did discuss it with the other foremen
and with Dannie Lewis , the area foreman, who was, in
Bramble' s words , "always jumping me ... for permitting
him to infiltrate around to other gangs ." When asked
whether he had ever warned Fonville about being away
from the job, Bramble first replied that "the warning was
given every day, but it didn't seem to take." When asked
how he warned Fonville, Bramble testified that "three or
four times, maybe five times" he "had to explain to him
Fonville's discharge. Yet, as appears more fully below , not a single witness
in this case testified that Fonville ' s being away from his work was
mentioned to him at any time in explanation of his discharge
'When asked whether he had ever heard what Fonville said to the men,
THE BABCOCK & WILCOX CO. 1007
that he was going to get run off that job if he didn't
straighten himself up." Bramble concluded his testimony
with the following comment:
He was in the rigging crew with me when I left. The
only complaint I had about him at that time was my
inability to keep him on the job. He would infiltrate
among the men and when he would talk to the men
they would get together and elaborate on what he told
them.
Weighing Foreman Bramble's testimony about
Fonville's being away from his work against Fonville's
testimony to the contrary in light of all the facts of the
case, I find that the truth of the matter lies somewhere
between the versions of each. Reading Bramble's
testimony as a whole, I conclude that he was given to
overstatement and exaggeration. Similarly, I conclude that
Fonville tended to minimize the extent of his leaving his
crew to engage in discussions with other employees about
the Respondent's failure to observe what he thought were
the Respondent's contractual obligations. Accordingly, I
find that occasionally Fonville left his work area and
conversed with employees on other crews while they were
working about the grievance matters in which he was
interested. However, since there is no firsthand testimony
regarding Fonville's disturbing of other employees in their
work, other than Foreman Bramble's exaggerations which
do not cover his most recent employment,' and since as
found below, I do not credit General Foreman Frye's
testimony concerning reports received from other foremen
concerning Fonville's conduct, I conclude that the
Respondent has failed to establish that Fonville's
conversations with other employees about grievances in
fact disturbed the work of other employees at any time
close enough to his discharge to have any relevance in this
case.
General Foreman Frye testified that in the early part of
the afternoon on August 7, the day that Fonville was
discharged, he had a conversation with Area Foreman
Dannie Lewis and Joe Holman about Fonville:
In that conversation I was informed that Fonville
was not with his gang and this evidently was reported
to either Holman or Lewis, I couldn't say just which
one, by the foreman that he was working for at the
time. . . I think it was Jim Donaldson. . Dannie
Lewis and I talked about it and, as I said, this had
been going on for not just one or two times or a matter
of a few weeks., it went on for six, seven months... .
Where different foremen would come to the area
foreman and say that this man had walked off. They
didn't know where he was. They was looking for him,
and at that time I would inform the area foreman to go
down the line and get the word to him to either stay
with his gang and stay at his work or he was going to
be terminated, and after talking with Dannie Lewis and
Holman about this, this was in the afternoon just
before I called the office for his check, Dannie Lewis
spoke up and said, "I think we have gone as =far as I
think we can go," and I said, "I think I have to agree
with you." That's when I got on the phone and called
our office and asked for his time.
Bramble answered as follows. "Not exactly, but what he said to me on
various occasions He would discuss these things with me that I couldn't
help him with."
'See, for example, Bramble's testimony discussed in the preceding
paragraph It is difficult for me to believe that the Respondent would have
tolerated Fonville's conduct for so long if, as Bramble testified , Fonville's
conduct had been so flagrant and so well known to so many foremen
With respect to Frye's testimony there are to be
considered the following undisputed facts. Fonville's
termination notice mentions only "Agitator on Jobsite"
and makes no reference to Fonville's being away from his
work area. (Even Frye's own testimony concerning what
he told McNevin to put on Fonville's termination notice
makes no mention of Fonville's being away from his
work.) Union Steward Foster, who notified Fonville of his
discharge, told him it was for "agitating" and gave no
further explanation. When the business manager of the
Union asked Frye over the telephone why Fonville was
discharged, Frye told him it was for "agitating" and
causing dissension among the men. In this conversation
Fonville overheard the business manager say, "I have not
seen those but he just handed me another one," an
obvious reference to the other grievances filed by Fonville.
It is also undisputed that shortly after Fonville and Union
Steward Foster took up Fonville's third grievance with
Construction Superintendent McNevin, McNevin
discussed the matter with Frye. Frye told McNevin on
this occasion that "they had received quite a few"
grievances, and that he "was getting `fed up with that
crap.' " It should further be noted that although Fonville
had been absenting himself from his crew for 6 or 7
months, according to Frye, it was only after Fonville had
filed these written grievances against the Respondent that
Frye deemed his conduct sufficiently serious to warrant a
discharge. No other employee had ever filed a written
grievance against the Respondent at the Sibley project.
Frye's testimony concerning the long series of
complaints against Fonville were all based on reports from
area foremen which he received second and third hand. He
testified that he had no personal knowledge of Fonville's
conduct, except that he had observed Fonville several
times away from his work area. The only specific
testimony concerning Fonville's alleged practice of
continually absenting himself from his work given by
anyone having first hand knowledge thereof was that of
Foreman Bramble. But Bramble's testimony was not only
exaggerated but somewhat stale, since he left the
Respondent's employ 5 weeks before Fonville's discharge.
Fonville's foreman in the last 5 weeks of his employment,
Jim Donaldson, was not called as a witness by the
Respondent. There is no firsthand testimony whatever
concerning Fonville's leaving his work in his last 5 weeks
on the job.
Finally, in appraising Frye's testimony concerning the
reason for Fonville's discharge, an affidavit given by Frye
to a Board investigator before the hearing and his
disclaimer thereof at the hearing must be taken into
consideration. In the affidavit Frye stated in effect that he
fired Fonville because none of his grievances were
legitimate. At the hearing Frye disclaimed having said any
such thing. However, Frye's testimony continues as
follows:
My signature might be on that, but that is not the
reason I fired the man. I missed that when I read it
over, because that is not the reason. There have been
many, many people file grievances orally and if there
was any merit to them they were taken through the
process right on up the line and taken care of by the
union, but there isn't a one of those grievances that
you couldn't read and throw it in the waste basket. I
am talking about the three letters.
Frye's conduct in relation to his affidavit raises serious
doubts in my mind as to his reliability as a witness.
Under all the circumstances, including Frye's failure to
mention Fonville's being away from his work at the time
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his discharge as a factor in his discharge, the
coincidence in timing between Fonville's filing of written
grievances and the Respondent's taking action against
him, and Frye's comment to McNevin regarding
Fonville's grievances that he "was getting `fed up with
that crap,' " I cannot accept Frye's testimony that he
discharged Fonville for leaving his work area and
disturbing the work of other employees and find that he
discharged Fonville because he resented Fonville's taking
up his time considering what he regarded as totally
groundless grievances. Fonville's being away from his
work area, in my opinion, was not a factor in Frye's
decision; on the contrary, it was an afterthought to mask
a discharge for engaging in activity protected by the Act.
The Respondent cites two lines of decisions in support
of its case. One involves factual situations which the
Respondent deems analogous to that in the instant case,
in which the Board dismissed the complaints, holding that
the alleged concerted activities were not the underlying
reasons for the discharges. The other line of cases involves
the discharge of employees who at the time of their
discharge were engaged in concerted activity but because
of special factors, such as presenting grievances at a time
or in a manner contrary to a valid plant rule or the terms
of a collective-bargaining contract, the concerted activities
were held by the Board not to be protected by the Act.
All of these cases, in my opinion, are distinguishable upon
the facts and are not controlling here. All of the
grievances filed by Fonville, the first involving high pay
and safety,' the second complaining of unsatisfactory
water and toilet facilities, and the third alleging
discrimination in regard to wages - all relate to proper
subjects of grievances. In presenting such grievances
Fonville was unquestionably engaged in activities
protected by the Act. See Mushroom Transportation Co.,
142 NLRB 1150, 1157-58.10 I find nothing in Fonville's
manner of presenting the grievances which would bring his
conduct within the second line of cases relied on by the
Respondent. Accordingly, I conclude that Fonville's
discharge violated Section 8(a)(3) and (I) of the Act.
CONCLUSIONS OF LAW
1. In filing grievances against the Respondent in July
and August 1968, Andrew Fonville was engaged in union
and protected activity within the meaning of the Act.
2. By discharging Andrew Fonville on August 7, 1968,
for engaging in union and protected activity, the
Respondent has discriminated against Andrew Fonville in
regard to his tenure of employment, has discouraged
membership in Pipe Fitters Association Local Union No.
533 of United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
'Insofar as the Respondent urges that Fonville in presenting this
grievance violated the "rule that a grievance be raised 'just once,' " since
the United Association had previously rejected the Union's claim for high
pay, it is to be noted that this grievance raises the matter of both high pay
and safer working conditions , and the latter plainly is a legitimate subject
of a grievance under the circumstances of this case The inclusion of the
former in the grievance , due to Fonville 's ignorance of the terms of the
collective-bargaining contract covering the work at the Sibley project
should not , in my opinion , defeat his right to grieve about the latter
"Although this decision was set aside by the Board of Appeals for the
Third Circuit, 330 F 2d 683, the Board since the Third Circuit's decision
was issued has affirmed its adherence to the principles stated in the
Mushroom case . See State Electric Company, 157 NLRB 504, 513,
Interboro Contractors Inc , 157 NLRB 1295, 1298-99, enfd 388 F 2d 495
(C A 2)
States and Canada, AFL-CIO, and has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in the Act, in violation of Section 8(a)(3) and
(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act, my Recommended Order will direct the
Respondent to cease and desist from such unfair labor
practices and from like and related conduct, and that it
offer Andrew Fonville immediate and full reinstatement to
his former or a substantially equivalent job at the Sibley
powerhouse project of the Missouri Public Service
Company, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of
pay he may have suffered as a result of his discharge by
payment of a sum of money equal to that which he would
have earned as wages from the date of his discharge to the
date of the Respondent's offer of reinstatement, less his
net earnings during such period, computed quarterly with
interest, in accordance with the formulas prescribed in F.
W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
The record does not show when it is anticipated that
the Respondent's work on the Sibley project will be
completed.
In the event that the Respondent's work on the project
has been completed by the time this case reaches the
compliance stage, my Recommended Order will provide
that the foregoing be modified to the following extent:
The Respondent need not offer reinstatement to Fonville,
but shall instead send a letter to him stating that,
notwithstanding his discharge, he will be considered
eligible for employment in the future at any of the
Respondent's projects if he should choose to apply for
employment at any of them. This does not mean,
however, that Respondent is required to offer Fonville
employment at other projects, Respondent is only to
consider him for employment on a nondiscriminatory
basis. In addition, the Respondent will be ordered to
include in said letter a copy of the notice which would
otherwise have been posted if the contract work had not
been completed. Also it will be recommended that the
Respondent be ordered to mail copies of the notice,
omitting the third and fifth paragraphs thereof, to all
employees who were employed by it at the Sibley,
Missouri, powerplant project on August 7, 1968. Murphy
Brothers, Inc., 173 NLRB No. 18.
RECOMMENDED ORDER
The Respondent, The Babcock & Wilcox Company, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Discouraging membership in Pipe Fitters
Association Local Union No. 533 of United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, or any other labor organization, and
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in the Act, by discharging or
otherwise discriminating against employees for engaging
in union or other activities protected by the Act.
THE BABCOCK & WILCOX CO.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage in, or to refrain from engaging in, any or
all of the activities guaranteed in the Act, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act, as amended.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Andrew Fonville immediate and full
reinstatement to his former or a substantially equivalent
position at the Sibley powerhouse project of the Missouri
Public Service Company, without prejudice to his seniority
or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of his
discharge, in the manner set forth in the section entitled
"The Remedy."
(b) Notify Andrew Fonville if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports,- and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its office at the Sibley powerhouse project
copies of the attached notice marked "Appendix.
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an
authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) In the event that the Respondent's work on the
Sibley, Missouri, powerhouse project has been completed,
assure Andrew Fonville of his future eligibility for
employment by the Respondent in the manner and to the
extent set forth in the section entitled "The Remedy," and
mail copies of the aforesaid notice, omitting the third and
fifth paragraphs thereof, to the employees specified in the
section entitled "The Remedy."
(f) Notify the Regional Director for Region 17, in
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
1009
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.':
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge any of our employees or
otherwise discriminate in regard to their hire, tenure of
employment, or any term or condition of employment,
because they have filed grievances against us or have
engaged in union or other protected activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in, or to refrain from engaging in,
any or all of the activities guaranteed by the Act,
except to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL offer Andrew Fonville immediate and full
reinstatement to his former or a substantially equivalent
position at the Sibley powerhouse project of the
Missouri Public Service Company, without prejudice to
his seniority or other rights and privileges.
WE WILL pay Andrew Fonville backpay to reimburse
him for the wages he lost as a result of his discharge.
WE WILL notify Andrew Fonville, if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
THE BABCOCK & WILCOX
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 610 Federal
Building, 601 East 12th Street , Kansas City, Missouri
64106 , Telephone 374-5181.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in wasting, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "