Clayton Construction Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 798 (N.L.R.B. 1980)

DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Clayton Construction Corporation and International
Union of Operating Engineers, AFL-CIO,
Local Union 16-16B. Case 17-CA-9072
July 18. 1980
DECISION AND ORDER
135 NhlMB111 RS JEINKINS, PI:NF.II.O, ANI)
TRUL SI)AI I.
On April 9, 1980, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering 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. 2
In finding that Respondent unlawfully dis-
charged Groves, we do not rely on the broad dis-
cussion of insubordination contained in the Admin-
istrative Law Judge's Decision.
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,
Clayton Construction Corporation, Urbana, Mis-
souri, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order as so modified:
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. II is the Board's established policy not to
oserrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
silnce us that the resolutions are incorrect Standard Dry), Wall Products.
Inc. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).) We have
carefully examined the record and find no basis for reversing his findings.
Nor do we find merit in Respondenlt's contention that, because the Ad-
minislrative Law% Judge generally discredited the Employer's witnesses
and credited the General Counsels witnesses, his credibility resolutions
are erronieous or attended by bias or prejudice ..I R.. v. Pittshurgh
Steamihip (Conmpanv, 337 U S 656 (1949)
Z In par I(b) of his recommended Order. the Administrative La*w
Judge inadseriently included the word "other" in his otherwise appropri-
ale narrow order Accordingly, we hereby modify the recommended
()rder to correct this error, However. the Administratlive Law Judge's
proposed notice is not similarly infirm, and we need not correct it.
250 NLRB No. 121
Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
DECISION
STATI:M1NT O1 I HI CASi
CLIi lORD H. ANDEIRSON, Administrative Law Judge:
This case was heard before me at Springfield, Missouri,
on January 17, 1980, pursuant to a complaint and notice
of hearing issued on December 10, 1979, by the Regional
Director for the National Labor Relations Board for
Region 17. The complaint was based on a charge filed
by International Union of Operating Engineers, AFL-
CIO, Local Union 16-16B, herein called the Union, on
July 19, 1979.1 The complaint alleges a violation of Sec-
tion 8(a)(l) and (3) of the National Labor Relations Act,
as amended, hereinafter called the Act.
The parties were provided full opportunity to examine
and cross-examine witnesses, to introduce relevant evi-
dence, and to file post-hearing briefs.
On the basis of the entire record, my observation of
the witnesses and their demeanor, and the briefs of the
General Counsel and Respondent, I make the following:
FINDI)INGS OF FACT
1. THE BUSIN SS OF1 THE RESPONDENT
At all times material herein Respondent has been a
State of Missouri corporation engaged in the construc-
tion of sewers at various jobsites including a jobsite lo-
cated at Urbana, Missouri.
In the course and conduct of its business operations
within the State of Missouri, Respondent annually pur-
chases goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of Missouri.
It is conceded, and I find, upon the foregoing facts,
that at all times material herein Respondent has been an
employer engaged in commerce and in an industry af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
1i. THE LABOR ORGANIZATION INVOI VED
Respondent concedes, and I find, that at all times ma-
terial herein, the Union has been a labor organization
within that meaning of Section 2(5) of the Act.
Ill. THE AI.LEGED UNFAIR I.ABOR PRACTICES
A. The Issues
There are two issues in this proceeding. First, was em-
ployee Floyd Groves engaged in protected activity at
the time he was discharged? Second, if Groves was en-
gaged in protected activity, did his conduct rise to the
level of insubordination thus depriving his activities of
protection?
Unless otherwise specified. all dales herein refer to calendar year
1979.
798
CILAY'ON C()NSRtUCIION CORP'
B. a'cts
Respondent is a closely held corporation owned pri-
marily by l.arry Clayton with the remaining interest
owned by Gilbert "Gibb" Clayton, Larry Clayton's
father. Respondent was formed in 1978. Larry Clayton
had previously been the sole proprietor of a similar en-
terprise, Clayton Construction Company, which ceased
commercial operations at the time of the formation of
Respondent.
Respondent does not have a signed contract with the
Union. Larry Clayton, as Clayton Construction Compa-
ny, signed an agreement with the Union before Respond-
ent was formed which by its terms extended through the
relevant period here. Respondent has at all times applied
this contract's terms to its own operations. Thus, terms
and conditions of employment, hiring, union security,
fringe trust payments, etc., are all handled by Respond-
ent as if it were signatory to the contract.
Respondent functions as a sewer and excavation con-
tractor. In the summer of 1979, Respondent commenced
a project at Urbana, Missouri. During the period in ques-
tion, Respondent utilized subcontractors and its own em-
ployees on the Urbana job. It employed two operating
engineers, members of the Union, and other employees
who were classified as laborers. One of these operating
engineers was Floyd Groves. Groves started working for
Respondent in March 1978. He was injured on the job in
February and did not return to work until April 1979.
Groves was appointed union job steward in May and
functioned in that capacity until his discharge on July 16.
Respondent at all times considered Groves' work to be
good. Upon Groves' return to work following his injury
however, several problems developed. Groves felt that
certain medical payments were due him and he and
Larry Clayton had a dispute concerning this. Larry
Clayton felt that Groves was failing to follow orders
from one of the supervisors. Larry Clayton went so far
as to deliver a letter of complaint about Groves to Union
President Pirtle. The problem was discussed with Pirtle
and no further action was taken. Groves, as steward for
the Union, raised issues with Larry Clayton from time to
time concerning working conditions and other matters
which were handled in a normal manner.
Clint Harmon was employed by Respondent as a la-
borer during normal working hours. After hours,
Harmon, operating his own equipment, worked as an in-
dependent contractor for Respondent, Clint Harmon was
not a member of the Union, however an arrangement
had been arrived at with the Union whereby Harmon's
independent operating engineer functions were limited to
the laterals or lines which run from the main line to indi-
vidual sewer connections. Thus Clint Harmon was not to
operate equipment on the main sewer lines but rather
was to limit his work on equipment to the laterals.
On the morning of July 16, 1979, a piece of equipment
was unexpectedly put out of operation for the day. As a
result of this Larry Clayton sought to shift working as-
signments among his employees so as to maintain pro-
duction. Gilbert Clayton, a supervisor and principal of
Respondent, approached certain employees during their
lunch break and told them of the afternoon's work as-
signments. The assignment included placing Groves on
one machine and assigning Clint Harmnon as operatoi of
another machine to work on the main line. Groves and
Gilbert Clayton discussed the aissignments. The substancee
of this conversation is in dispute. The two along *sithi
others then traveled to a separate location on the site.
There Groves discussed the preceding work assignment
with Larry Clayton. This consersation is in substantial
dispute. During this convl ersation and as a result of \x hat
Groves said during it, Larry Clavston discharged (iroes.
Groves was subsequently paid and driven to a telephone
,where he called the Union. lHe has not been offered rein-
statement.
C. .4nasis aond Conclusionv,
The events of July 16 are the critical element of the
case. There is no dispute that Groves was terminated be-
cause of his actions on that day and that he would not
have been terminated otherwise. Groves' conversations
with Gilbert Clayton and later with Larry Clayton w\ere
witnessed by a number of individuals many of whom tes-
tified as to what was said. That testimony is in dispute.
The conflicting testimony requires a resolution of credi-
bility among the various witnesses.
Floyd Groves, Clint Harmon, and James Clayton, an
employer of Respondent as well as the brother of Larry
Clayton and son of Gilbert Clayton, were approached
during the luncheon break on July 16 by Gilbert Clay-
ton. Groves testified that when he was told of his own
work assignment by Gilbert Clayton he inquired about
the assignment of other employees. When told that Clint
Harmon was to operate a piece of equipment on the
main line he said to Gilbert Clayton:
"[No], Gibb, I'll run that loader, but." I said, "Clint
can't dig on the line." "Well." he said, "we'll have
to talk to Larry" so we went to find Larry.
Testifying concerning this conversation, Clint Harmon
and Larry Clayton each recalled the disagreement con-
cerning the assignment of Harmon to work on the main
line but do not recall the statement by Groves that he
would accept his own assignment. James Clayton had
little recollection of this conversation but thought that
Groves had refused to operate the equipment Gilbert
Clayton had assigned to him.
At the conclusion of this exchange, Gilbert Clayton,
James Clayton, Floyd Groves. Clint Harmon, and a
truckdriver from Rhodes Concrete Products identified
only as Dick drove to that part of the jobsite where
Larry Clayton was working. With him was Eldon
Harmon--the father of Clint Harmon, who was an in-
spector on the site. At this time a conversation occurred
between Larry Clayton and Groves in the presence of
the others. All present at the conversation testified save
Eldon Harmon and the truckdriver. As Respondent
notes in its brief, the testimony regarding the conlversa-
tion is "somewhat conflicting and piecemeal." Groves
described this conversation as follows:
Well. when we got there, I told Larry [Claqyton], I
said, Larry, I told him vlihat Gihb [Clayton] said
about running. me running the loader. I said. I1'II
DECISIONS ()F NATIONAL I.ABOR RELATI()ONS BOARD
run the loader, but," I said, "you cannot, under the
contract, let a laborer run it on the main line."
I said. "The Union has talked it over with them
and agreed on this here putting the laterals in. But,"
I said, "he cannot run on the main line." He said,
"I'll run a job any way I want to." And I said, "I'll
run a job any way I want to." And I said, "Why
don't you run it the right way?" He said, "I'll run it
any way I feel like." And I said, "Well, let's call the
hall and get it straightened out before it goes any
further."
He said, "Call the hall, hell," he said, "I'll fire
you." He fired me and he said, "Now just get
plumb off my job...."
Clint Harmon testified that Groves told Larry Clayton
that Clint Harmon should not operate equipment on the
main line and that Clint Harmon should only operate
equipmernt on the laterals. The dispute became more
heated with Larry Clayton telling Groves that he could
not tell him how to run his job. Clint Harmon could not
recall the specifics but did recall generally that the con-
versation included reference to the union business agent.
Clint Harmon testified several times both on direct and
cross-examination that he did not recall hearing Groves
refuse his own job assignment nor did Harmon's pretrial
affidavit indicate such a previous recorded recollection.
Gilbert Clayton recalled that Groves and Larry Clay-
ton were "talking over if Clint was going to do the dig-
ging or something and he was trying to spell out what
the Union was supposed--what qualified work there was
or something." Gilbert Clayton could not recall a refusal
by Groves to perform his own assignment. James Clay-
ton recalled that Groves said that he would not run the
equipment assigned him and that Clint Harmon should
not work on the main line. He also recalled Larry Clay-
ton's comment to Groves that Groves was not going to
tell him how to run his job.
Larry Clayton recalled the conversation in a some-
what piecemeal fashion during his testimony. He testified
that Groves refused to operate his assigned equipment
saying that "we are not going to run things like that
down here." Larry Clayton recalled Groves' opposition
to Harmon's working on the main line and Groves'
threat to call the Union. Larry Clayton insisted that
Groves refused to do his assigned task and for that
reason he fired him.
I have carefully examined the testimony of those who
witnessed the conversation and credit Floyd Groves and
Clint Harmon over Larry Clayton. Gilbert Clayton in
part corroborates the versions of Groves and Harmon.
James Clayton does so to a much lesser extent. Where
the testimony of James and Gilbert Clayton is inconsist-
ent with that of Groves and Harmon, it is discredited.
Clint Harmon still works for Respondent as an inde-
pendent contractor and he has no stake in the outcome
of the case. While his recollection was not complete, I
found him to be an honest and sincere witness. I give his
testimony special credence. Floyd Groves seemed to me
to listen carefully and to recall with precision what he
said and what was said to him. While he has a direct in-
terest in the outcome of the case, I found his answers re-
sponsive and detailed. He seemed to me to give answers
uninfluenced by partisan shading. I have therefore cred-
ited Harmon's version of the conversations.
Larry Clayton was an impulsive and belligerent wit-
ness who seemed incapable of responding factually to
questions asked him by counsel on either side. Further
his attitude was partisan and his answers frequently unre-
sponsive. He testified in a manner that led me to believe
he was unable to separate in his own mind those things
that he saw and heard from his own opinions, emotions,
and conclusions. I place little faith in his answers and
discredit him where his version of events is in conflict
with others. While Gilbert and James Clayton seemed
straightforward and sincere, their recollections were
somewhat vague and incomplete. Each was in the court-
room during Larry Clayton's testimony and testified
after he did. Their recollections of the critical aspects of
the conversation seem to me to likely be influenced,
however unconsciously, by the version of their close rel-
ative and the principal owner of their employer. Yet
their testimony does to a certain degree agree with
Groves and Harmon and does not completely corrobo-
rate Larry Clayton. I have credited their testimony only
to the extent it is not inconsistent with that of Groves
and Harmon.
In addition to resolving credibility based on the de-
meanor of the witnesses, I am persuaded that the version
of Groves and Harmon present a more plausible se-
quence of events. I find that it is more logical that
Groves would complain of Harmon's work assignment
rather than his own. All witnesses recall Groves raising
the Union's agreement concerning Harmon working on
laterals as support for Groves' disagreement with Larry
Clayton. That agreement had no application to the spe-
cific assignment that Groves received. Groves had no
other reason to complain concerning his own work as-
signment, independent of Harmon. I have found Larry
Clayton to be an impulsive and belligerent witness. I am
convinced that he reacted to Groves' challenge to the as-
signment of Harmon as if it were a general attack on his
own jealously guarded right to operate his company. To
Larry Clayton the challenge, however reasoned, would
be intolerable and would, in his mind, be tantamount to a
more general refusal to work. All recall Larry Clayton's
admonition-"You can't tell me how to run my busi-
ness." 2
Based upon all of the above, I find that Groves was
fired because he sought to raise with Larry Clayton his
belief that Clint Harmon was prohibited from doing the
work assigned because of an agreement with the Union.
I reject the assertion of Respondent that Groves refused
to perform his own assignment or that he was fired for
that reason. It was Groves' challenge to Larry Clayton
by raising the union agreement, not any refusal to work,
which caused Groves' discharge.
' Larry Claytln hbelieved. and his vliew, Is plausible. that certain lan-
guage in the contract gave him Ihe right ito a,,ign , ork as he sa', fit ill
anl emergcncy It is immaterial who as, correct conllcrling the asigl-
mciit of Harmon to the maini line rhrcrfitre. I dchline to make ar\ fiTid-
ing IS to this mater
8(0
CIAY'IO(N CO()NSIRUCTION CORP'
Groves in his capacity as union job stew ard swas as-
serting a claim based on an agreement , ith the Union.
Such activity is protected if the assertion is reasonable
and in good faith, as I find to be the case here, even if
ultimately incorrect. H. C. Smith Constructionl Co., 174
NLRB 1173 (1969). This is also true where a contractual
claim is made but no signed contract exists. Merlyn
Bunney and Clarence Bunney, partners, d/b/a Bunney
Bros. Construction Company, 139 NLRB 1516 (1962).
Insubordination, such as refusal to perform assigned
work, may constitute sufficient reason for discharge even
in the context of protected activities. That is particularly
true where, as here, the contract followed by the parties
contains both no strike and grievance and arbitration lan-
guage. Yellow Freight Systemn, Inc., 247 NLRB No. 8
(1980); but cf., Dust-Tex Service, Inc., 214 NLRB 398
(1974). I do not find, however, that Groves' conduct
rose to that level. Groves asserted his claim and suggest-
ed that the Union be called if a question remained. He
did not refuse to perform his own assignment. Mere in-
quiry into the circumstances of an assignment does not
constitute insubordination meriting discharge. See, e.g.,
Dutches Furniture, Division of National Services Industrie.,
Inc., 222 NLRB 42 (1976); Corry Jamestown Corporation,
238 NLRB 652 (1978).
Respondent admits that it fired Groves due to his
action in protesting the work assignmant on July 16,
1979.3 I have found that this protest was protected con-
certed and union activity. Further I find that Groves'
conduct on that occasion did not constitute insubordina-
tion. Accordingly having found Groves was discharged
for his protected concerted and union activity, I find that
Respondent in firing Groves violated Section 8(a)(1) and
(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has terminated the em-
ployment of Floyd Groves in violation of Section 8(a)(1)
and (3) of the Act, I shall order Respondent offer Floyd
Groves immediate and full reinstatement to his former
position of employment or, if said position is no longer
available, to a substantially equivalent position, without
prejudice to any seniority or other rights and privileges
I Respondent neither at the hearing nor on brief argued that it as
Groves' action in seeking to induce Harmon not to accept his assignment
which caused his discharge Even if such a defense 'were asserted. I
would reject it on the facts Groves' statements to Harmon during his
conversation with Larry Clayton isere part of his argument sith L.arrs
Clayton and not a solicitatinn of a work stoppage hy Harmon
to which he may have been entitled. I shall also order
that Respondent make Floyd Groves whole for any loss
of earnings he may have suffered by reason of the dis-
crimination against him to he computed in the manner
described in F. U U oolowortrh Company, 90 NLRB 289
(1950), together with interest thereon in accordance with
the policy of the Board set forth in Florida Steel Corpora-
tion, 231 NLRB 651 (1977); see also Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, and the entire
record herein, I make the following:
CONCI USIONS OF LAAw
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2.The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging employee Floyd Groves because as
union steward he, in good faith, protested Respondent's
assignment of work to certain employees in arguable vio-
lation of Respondent's agreements with the Union con-
cerning work assignments, Respondent terminated an
employee because of his protected concerted and union
activities, thereby violating Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER 4
The Respondent, Clayton Construction Corporation,
Urbana, Missouri, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees because they assert an
agreement with the Union in protesting Respondent's
work assignments.
(b) In any other like or related matter interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act:
(a) Post at its Urbana, Missouri, jobsite or if such job-
site no longer exists, its other jobsite or jobsites where
employees represented by the Union are employed, the
attached notice marked, "Appendix." s Copies of said
notice on forms provided by the Regional Director for
In the event no exceptrins are filed as provided h. Sec 102 4th of the
Rules and Regulations of the National Lahbr Relations Board. the find-
ings, conclusions. and recommended Order herein shall. as prosided in
Sec 102 48 of the Board's Rules and Regulations, he adopted h) the
Board and he.come its findings, conclusions. and Order. and all ohbectiols
thereto shall be deenmed waired for all purposes
I In the event that the Board's Order is enforced hb a Judgment of a
United States Court of Appeals. the ewords in the notice reading -Po sted
by Order of the National Labor Relations Board" shall he changed to
read "Posted Pursuantl o a Judgment (of the Ulited States C ourt ,of Ap-
peals Enf ircing an Order of the National I habor Relations BoHard
SO I
1I)f CISI()NS ()F NA'I ONAI. I.A()R RE AT IO)NS I()ARI)
Region 17, after being duly signed by Respondent's au-
thorized representative, shall be posted by 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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent lo insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Offer Floyd Groves immediate and full reinstate-
ment to his former position of employment or, if that po-
sition no longer exists, to a substantially equivalent posi-
tion of employment, without prejudice to his seniority or
other rights and privileges previously enjoyed, and make
him whole for any loss of wages he may have suffered
by reason of the discrimination against him, in the
manner set forth in the section of this Decision entitled,
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel record and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under this Order.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
Nowric- To EMPI.OYFIS
POSt Il) BY ORDIER OF HIt
NA. IIONAI. LABOR RillATIONS BOARDI
An Agency of the United States Government
After a hearing at which all parties were accorded an
opportunity to call witnesses and to introduce relevant
evidence, the National Labor Relations Board has found
that that we violated the National Labor Relations Act
and has ordered us to post this notice.
The Act gives all employees these rights:
To act together for collective bargaining or
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all of these things.
WE Wtlll. NOT terminate employees because they
protest our work assignments by relying on agree-
ments with International Union of Operating Engi-
neers, AFL-CIO, Local Union 16-16B.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL offer Floyd Groves immediate and full
reinstatement to his former position of employment
or, if that position no longer exists, to a substantially
equivalent position.
WF wl.l. make Floyd Groves whole for any loss
of pay he may have suffered because we unlawfully
terminated his appointment together with appropri-
ate interest.
CI.AYTION CONSTRUCTION CORPORATION
S(2)