281 N.L.R.B. 453 (N.L.R.B. 1986)

Cullum Mechanical Construction, Inc.

National Labor Relations Board - Board DecisionsSep 11, 1986

281 N.L.R.B. 453 (N.L.R.B. 1986)

CULLUM MECHANICAL CONSTRUCTION Cullum - Mechanical Construction , Inc. and Timothy A. Wokasch. Case 11-CA-11763 ti 11 September 1986 DECISION ANDORDER' BY CHAIRMAN DOTSON AND MEMBERS JOHANSENnAND BABSON On 24 February 1986 Administrative Law Judge J. Pargen Robertson 'issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and' the Respondent' filed an answer- ing 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 conclusions2 and to adopt --the recommended Order. - ORDER The National Labor Relations Board adopts the recommended Order of the administrative lave judge and orders that the Respondent, 'Cullum Me- chanical-, Construction, Inc., Charleston, ,South Carolina, its officers, agents, successors, and as, signs, shall take the action set forth in the Order. 1 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admmmstra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall '.Products, 91 NLRB 544'(1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. 2 We agree with the judge's conclusion4hat'the General Counsel has not established that employee Wokasch's protected activity played a part in his discharge. We, however, do not adopt the ,fudge's statement that the General Counsel had the burden of proving that Wokasch would not have been discharged absent his protected activity. See Wright Line, 251 NLRB 1083- (1980). Jasper,C Brown Jr., Esq., for the General, Counsel. - Allan R. Holmes, Esq., and Capers G. Barr III, Esq., of Charleston, South Carolina, for Respondent. DECISION STATEMENT OF THE^CASE J. PARGEN ROBERTSON, Administrative Law Judge. This matter was heard in Charleston, South Carolina, on 18 November 1985 pursuant to a complaint which was filed on 10 October 1985. The complaint was, based on charges of 8(a)(1), and (3) violations filed on 28 August, and amended on 19 September 1985. - The General Counsel argues that Timothy A. Wo- kasch was discharged in June 1985 because of his, con- certed activities. 453 Wokasch worked for Respondent as -a pipefitter/- welder from March 1983 to June 1985. During 1985, he worked on a "fire protection job" `at the Charleston, South Carolina Naval Base., March/April 1985 In March or April 1985, Wokasch'and someother dm-' ployees of Respondent talked. with Jon Sadler, naval fa- cilities engineering command, project manager, about an alleged failure- of Respondent's'-superintendent William Baldwin to pay employees earned overtime. Sadler re- ferred the matter to Naval Base Construction Represent- ative Reese Lockee. - ` - Lockee's job involves conducting wage surveys on his own initiative and pursuant to employee complaints. Most of the .surveys, are made.=because of employee com- plaints. In late March or early April 1985, Lockee came onto Respondent's fire protection job and talked to okasch in Lockee's van. Wokasch told Lockee that he was speaking for others and he-wanted to--know how-to go about getting paid-for overtime. Superintendent William Baldwin walked.- up as Wokasch -was leaving Lockee's van. Baldwin asked Lockee, "What the .problem was?" Lockee explained-the employees were complaining-about the overtime pay, and- that he was going - to conduct a wage survey but that "the guy refused' to fill out the wage survey." . Baldwin told .Lockee that he' would take care of the- situation. - - - A few minutes later Baldwin talked to Wokasch. Ac- cording to Wokasch: - Mr. Baldwin walked up and he said, "So you think I'm, bucking you, huh?" and I said,' "No," and he said,,, "You are -the instigator, of this' whole thing, aren't, you?" I said, "No." -I said, "We are all- in it." I told him it was not just me, it was everybody. All we wanted to do,-was start working on time and stop working on time, and he said, "Well, I can make things a whole lot worse than what'they are." He said, "I can make you have a complete tool box and that there were people out there that, . you know, appreciated the job," anti at this point he got very angry and he threw a paper at me and he said, "Here, fill this out on your own time," and then he walked over and tried to hand-the papers to some other employees and a fire trunk drove up and then he left. Baldwin testified, that he received some of the wage survey forms from Lockee -and distributed the forms to, the employees-. Baldwin testified: I just, handed 'them to them and told them, you know, if they felt like they were getting that flim- flam mad about it, they could fill'them out on their own time. 1 At hearing, Respondent -a construction company, stipulated that it is an employer engaged in commerce as defined in the Act. 281 NLRB No. 73 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. So you did tell them they could fill them out on their own time? A. Yes, I did. Q. Did you give one to Mr. Wokasch? A. Yes, sir, I sure did. Baldwin also testified: Q. Did you tell Wokasch that you could make the employees have a full work kit? A. I said we could require them, enforce the re- quired tool list that the company has now, or had then. Q. You also told him that you could find some employees who would appreciate the job, didn't you? A. No, I didn't. That isn't what I said. Q. Did you say something to that effect? A. I said, "It must not be that bad a place to work because we had a lot of applications." Wokasch testified that following the above incident, Baldwin did not talk with him for about 2 or 3 weeks and subsequently Baldwin became overly critical of Wo- kasch's work to the point of scolding Wokasch because Wokasch was performing jobs which had been assigned by Wokasch's foreman. Baldwin disputed Wokasch's tes- timony. According to Baldwin, he did not treat Wokasch any differently than any other employee. 2 Daniel England also spoke to Reese Lockees about the employees' overtime. England talked with Lockee short- ly after Lockee talked to Wokasch. After England talked to Lockee, Baldwin came to England. England testified as follows: A. I told him that the Inspector [Lockee] told me if I wanted to fill out a form, that I probably would be fired. I told him that part, and I told him I didn't know whether or not I was going to fill out a form. That was pretty much it . It wasn't a real long con- versation. It was pretty loud but it wasn't very long. Q. Were you ever given a form to fill out? A. They were there. I could have taken one, but at the time- Q. Did he offer you a form? Mr. Baldwin. s I was not impressed with the demeanor of either Timothy Wokasch or William Baldwin . Additionally, it appeared that both flagrantly depart- ed from the truth in portions of their testimony. For example , Baldwin testified that he was surprised but not angry over the complaint to Lockee about overtime. However, his admitted comments to employees after talking with Lockee illustrate anger. Wokasch originally testified that the fire protection job which included pipefitting under piers exposed to tidal changes , was not difficult. That testimony disagreed with the testimony of several other witnesses includ- ing Daniel England . England was called by the General Counsel and his testimony was supportive of Wokasch's position in most respects. Subse- quently, when Wokasch was recalled in rebuttal , he admitted that the fire protection job was dangerous. However , regarding the incidents flowing from Wokasch's meeting with Lockee in Lockee's van, I have credited Wokasch. His testimony in that regard was substantially supported by the testimony of Reese Lockee, Daniel England, and William Baldwin. a England was able to identify Lockee by appearance. England saw Lockee at the courthouse during the instant hearing. A. Oh, he had, yes. He had a stack of them. He offered one to me, but I wasn't in a situation to take a form at that time. Q. Now, after your meeting with Mr. Baldwin, were you ever present during a conversation where- in your meeting with the Inspector was discussed by a supervisor? A. It wasn't but about two or three minutes later than that when Fritz came over, and I was follow- ing Baldwin and Fritz up to the tool shed. I may have been about 10 feet behind them, and I heard Baldwin say, "Mere is the other one that told on me," and he pointed at me . Then he kind of got quiet, because I was right there, and they went around the corner and were talking.4 I credit the testimony of England. He testified openly without evasion. None of his above testimony was di- rectly denied by Baldwin. June 1985 Wokasch testified that in June 1985, Baldwin scolded him about not working under the pier. Wokasch replied that he was doing what he had been told by Foreman Fitzpatrick. That evening, Wokasch contacted a foreman on other jobs for Respondent, Clifford Webb. Wokasch asked Webb if he could see Superintendent Thomas Brown about being transferred from William Baldwin's job. On the following morning pursuant to a suggestion by Webb, Wokasch came to Webb's job where Webb told him to ask Baldwin for a transfer.5 Subsequently, Wokasch talked with Baldwin. Accord- ing to Wokasch: Yes, I was working and I was down at the boat, down at the barge working on the pier and Baldwin drove up, and I said, "I need to talk to you a minute," and he said, "O.K.," and I come up, climbed up on top of the pier, and I said, "I've been to talk to Clifford and I want a transfer," and he got real mad at this point and he said, "Well, do you think what happened yesterday was my fault?" and he said, "Why didn't you come to me about this about a month ago?" and I said, "Well, look, all I want is a transfer," and he said, "Well, you just shit it anyhow. I'll go ahead and fire you." Baldwin testified: Well, he didn't show up that morning at work time, which I didn't think much about. I went on to the other jobs, you know, because we had a lot of people out. It was winter time and it was pretty rough, and I came back by, oh, 9:30 or 10:00 4 England's foreman , Ricky Fitzpatrick, was known as Fritz. " Clifford Web admitted that he told Wokasch that he could work for him if Baldwin permitted his transfer . In other respects , Webb's testimo- ny differs from that of Wokasch. Webb denied Wokasch told him that Baldwin was about to fire him because he had complained about lack of overtime pay. I credit Webb who appeared to be more candid that Wo- kasch. CULLUM MECHANICAL CONSTRUCTION o'clock, and he was down under the pier where a couple of other guys was working , and when I headed over, he said,,"I want, to talk to you," and I ,said, "O.K.,",so he come up- on , top of the pier and he said, "I don't want to work here anymore. I want a transfer,", and I -said, "Tim, I can't give you a transfer, you know, I've got too much work to do. I'm behind schedule now ."- He said, "Well, I don't want to discuss it." I said , "Well, as far as I am concerned, you know, ' if you can't- work here, - you are fired." According to Wokasch on the evening of his dis- charge, he talked with another of Respondent's superin- tendents, Thomas Brown. On that occasion and during another^ conversation on 29 July, Brown told Wokasch, among other things, that one of the reasons h'was fired was his complaints "to the inspector,." Brown denied that he told Wokasch that' he was fired because he went to the inspector. Brown testified that after Wokasch was fired, Wokasch -telephoned- him and said he thought he was fired, because he went to the inspector. Brown, testi- fied that he "told Wokasch -that if, Baldwin did what, Wo- kasch claimed, "it was not right." Brown impressed me as a straightforward candid wit- ness. He ,testified without evasion to both attorneys for Respondent and the General Counsel. I credit his testi- mony over that-of Wokasch. Conclusions I am convinced that William Baldwin was not truthful in his claim that he did not know of Timothy Wokasch's complaints to Reese Lockee about the, employees' over- time without pay. The circumstances of the Lockee-Wo- kasch meeting in Lockee's van and ' the testimony, of Daniel England demonstrate that Baldwin knew-of Wo- kasch's involvement in the overtime complaints. However, more than the above must be shown to prove that Wokasch was discharged because of his con- certed complaint. about overtime,'The General Counsel has the burden of proving that the discharge resulted, at least in part, because of Wokasch's protected, activity and that Wokasch would not have been discharged absent his protected activity. I fmd that the evidence is less, than convincing that Wokasch's protected activities played a part in his dis- charge. In :analyzing that question, I first looked at the circumstances surrounding Wokasch's discharge. Howev- er, as I mentioned above, the evidence regarding the, cir- cumstance s,surrounding the discharge rest on the testi- mony of two witnesses who were found to be less` than credible.- Because of my distrust of the testimony of Wokasch and Baldwin, I cannot determine which, if either, version of the discharge incident is accurate. I, suspect that certain portions of both versions are ac- curate while other portions of both are inaccurate. For example, Wokasch testified that after he asked for a transfer, Baldwin said: he got real mad at this point and he said, "Well, do you think what happened yesterday was 455 my fault?" and he said, "Why didn't you come to me about this about a month ago?" I am, convinced that the above testimony is accurate be- cause that portion of Wokasch's testimony contributes little to support his charge to, the Region. In fact, Wo- kasch admitted that he, did not understand Baldwin's comment, "Why didn't, you come to me about ... a month ago- "6 On the other hand, I am convinced that Baldwin told Wokasch, as Baldwin testified, that he could not transfer Wokasch because he had "too much ;work to do." That testimony appears logical in view of Wokasch's testimo- ny that Baldwin asked him why he did not come to him a, month earlier.? I am also convinced ,that- Baldwin told Wokasch that he was fared ;if he did not-want to work there. That testimony appears , logical in _ view of the credited testimony of Wokasch that Baldwin,was angry and questioned Wokasch about, blaming Baldwin with what occurred the -day before.8 The above- testimony shows that Baldwin became angry when Wokasch asked for a transfer. The com- ments recalled by , Wokasch show that Baldwin's- anger stemmed from Baldwin's impression that Wokasch was seeking to transfer because of his and Wokasch's con- frontation on the day before, Wokasch's discharge. That confrontation didAnot involve protected concerted activi- ty. Therefore, I fmd that the General Counsel failed to' show that Wokasch was discharged, in whole or in part, because of his protected activities. The evidence illus- tratesthat Baldwin reacted out of anger, because-of Wo- kasch's request' for a -transfer. Additionally, as shown above,- I discredited the testimony that-, Superintendent Brown, told Wokasch that he was discharged because of his complaints about overtime without ,pay. - The Remaining 8(a)(1) Allegations In view of my finding that Thomas^.Brown, did not tell Wokasch that he could not be rehired because of his complaints over overtime,T recommend dismissal-of the 8(a)(1) allegation, regarding Brown. The remaining - 8(a)(1),' allegations concern alleged in- terrogation, threats of unspecified reprisals, more onerous working conditions, and discharge by Superintendent William Baldwin. Both Timothy Wokasch and ` Daniel England testified credibly regarding conversations 'with -Baldwin in late March `or early April - following their talk, with Reese Lockee. As shown above, Wokasch testified that Bald- win said- to him-., Mr. Baldwin walked up and he said, "So you -think I'm bucking you, huh?" -and .I said, "No," and he 6 Of course, as Respondent's' attorney suggested during -cross-eaamina- tion of Wokasch, a reasonable explanation of why Baldwin made that comment was that Baldwin could have transferred Wokasch a month ear- her because work was slack at that time, whereas.at the time of Wo- kasch's discharge'the workload did not justify a transfer for Wokasch T Ibid. - 8 As shown above, on the day before Baldwin scolded Wokasch and others because Baldwin thought they were not working. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "You are the instigator of this whole thing, aren't you?" I said , "No." I said, "We are all in it." I told him it was not just me, it was everybody. All we wanted to do was start working on time and stop working on time , and he said , "Well, I can make things a whole lot worse than what they are." He said , "I can make you have a complete tool box and that there were people out there that, you know , appreciated the job," and at this point he got very angry ... . England testified that Baldwin made the following comments to him: A. He asked me if I had a complaint , if I had called the Inspector , if I was going to fill out a complaint, what was said between us. Q. And what did you say? A. I told him that the Inspector [Lockeej told me if I wanted to fill out a form, that I probably would be fired. I told him that part, and I told him I didn't know whether or not I was going to fill out a form. That was pretty much it. It wasn't a real long con- versation. It was pretty loud but it wasn't very long. Q. Were you ever given a form to fill out? A. They were there. I could have taken one, but at he time- Q. Did he offer you a form? Mr. Baldwin. A. Oh, he had, yes. He had a stack of them. He offered one to me, but I wasn 't in a situation to take a form at that time. Q. Now, after your meeting with Mr. Baldwin, were you ever present during a conversation where- in your meeting with the Inspector was discussed by a supervisor? A. It wasn't but about two or three minutes later than that when Fritz came over, and I was follow- ing Baldwin and Fritz up to the tool shed. I may have been about 10 feet behind them, and I heard Baldwin say, "There is the other one that told on me," and he pointed at me . Then he kind of got quiet, because I was right there , and they went around the comer and were talking. The testimony of England shows that he was coercive- ly interrogated by Baldwin . Baldwin demonstrated hos- tility toward England because of England's discussions with Reese Lockee. He identified England as one of the employees that "told on" Baldwin . Moreover, Baldwin did nothing to dispel England 's comment that he felt he would probably be fired if he filled out a wage survey form. Wokasch's testimony shows that he was also coercive- ly interrogated about whether he was the instigator of the overtime complaint . Baldwin threatened that he could make things "a whole lot worse ... I can make you have a complete tool box ...." Baldwin threat- ened Wokasch with discharge by his comment that there are people out there that would appreciate the job. In that regard , Baldwin admitted that he told Wokasch that "we had a lot of applications." Therefore, I find that the record supports the General Counsel's allegations that Respondent , by William Bald- win, engaged in conduct violative of Section 8(axl). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent by interrogating its employees concern- ing their protected concerted activities, threatening its employees with unspecified reprisals, with more onerous working conditions , and with discharge because of their protected concerted activities , engaged in, and is engag- ing in , unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 3. Respondent did not otherwise engage in activities violative of the Act as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(l), I shall rec- ommend that it be ordered to cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- s ORDER The Respondent, Cullum Mechanical Construction, Inc., Charleston, South Carolina , its officers, agents, suc- cessors , and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their pro- tected concerted activities. (b) Threatening its employees with unspecified repris- als, with more onerous working conditions , and with dis- charge because they engaged in protected concerted ac- tivities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facility in Charleston , South Carolina, copies of the attached notice marked "Appendix." 10 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by Respond- ent's authorized representative , shall be posted by Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily 9 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. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CULLUM MECHANICAL CONSTRUCTION posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 457 WE WILL NOT interrogate you concerning your pro- tected concerted activities. WE WILL NOT threaten you with unspecified reprisals because you engage in protected concerted activities in- cluding protest of our failure to pay you for working overtime. WE WILL NOT threaten you with more onerous work- ing conditions because you protest our failure to pay for overtime work or because you engage in any other pro- tected concerted activities. WE WILL NOT threaten you with discharge because of your protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. CULLUM MECHANICAL CONSTRUCTION, INC.