Guy F. Atkinson Co.

National Labor Relations Board - Board Decisions

Apr 15, 1971

189 N.L.R.B. 803 (N.L.R.B. 1971)

GUY F ATKINSON COMPANY 803
Guy F. Atkinson Company and Franklin Junior
Phillips
Guy F. Atkinson Company and Gilbert Louis Sturgis.
Cases 20-CA-5854 and 20-CA-5855
their low productivity. This case was heard in Modesto,
California, on July 14, 15, and 16, 1970.1
Upon the entire record, consideration of briefs filed by
the parties, and from my observation of the witnesses, I
make the following.
April 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 30, 1970, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
consolidated proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged
in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed timely exceptions to the Trial
Examiner's Decision and a supporting brief. Respon-
dent filed a brief in support of the Trial Examiner's
Decision.
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 of the Trial
Examiner made 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 briefs, and
the entire record in the 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 adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner This matter
involves a question as to whether the Charging Parties,
Gilbert Sturgis and Franklin Phillips, were included in a
layoff because of their alleged insistence that Respondent
adhere to a collective-bargaining agreement or because of
1 The consolidated complaint in this matter was issued on March 13,
1970 The charge in Case 20-CA-5855 was filed on November 21, 1969,
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND JURISDICTION OF THE
BOARD
Guy F. Atkinson Company, herein Respondent, a
Nevada corporation with its principal office in South San
Francisco , California , is a general contractor in the
building and construction industry operating in various
states of the United States, including California. During the
past calendar year , Respondent , in the course and conduct
of its business , purchased and received tools and materials
valued in excess of $50,000 directly from suppliers located
outside the State of California . During the past calendar
year, Respondent, in the course and conduct of its business
operations , sold goods and/or services valued in excess of
$ 50,000 to customers located outside the State of California.
Respondent is, and at all times material has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union 684, herein the Union, is, and at all times material
herein has been, a labor organization within the meaning of
the Act
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The central issue is whether Respondent terminated
employees Franklin Phillips and Gilbert Sturgis because of
their union activities, including protests about alleged
unsafe working conditions and attempts to cause Respon-
dent to comply with their interpretation of the terms of
collective-bargaining agreement between Respondent and
the Union, or whether Phillips and Sturgis were included in
a reduction in force on the basis of their relatively poor
productivity as Journeymen electricians.
A secondary issue is whether comments of individuals
listed as foremen under the collective-bargaining agree-
ment support the proposition that Phillips and Sturgis were
objects of unlawful discnnunation by Respondent
B. Background and Prefatory Statement
Gilbert Sturgis and Franklin Phillips were both experi-
enced and competent journeymen electricians They were
working partners during their employment with Respon-
dent from June 23, 1969, until September 26, 1969, when
they were terminated. They were hired at the same time and
worked as a team during the entire period of their
employment
and the charge in Case 20-CA-5854 was filed on the same date
189 NLRB No. 126
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The electrical work involved in this matter was in
connection with the construction of Don Pedro Dam near
Modesto, California. The project manager was Jonathon
Goodier. His assistant was Patrick Mitchell, whose title was
project business manager. The electrical superintendent
was Eugene Reed, and the electrical general foreman was
Leo Grooms. Both Reed and Grooms had been employed
by Respondent in other electrical construction projects in
various locations over a period of many years. Grooms was
the one electrician classified in the collective-bargaining
contract whom Respondent was entitled under the terms of
its collective-bargaining contract with the IBEW to bring
to the project All the rest of the hourly paid electrical
workers on the project, including foremen and subforemen,
were requisitioned through the IBEW Local 684 hiring hall
located in Modesto, California. Journeymen electricians
obtained through that hiring hall could be designated by
Respondent either as foremen or subforemen In Phillips'
past work history with other employers he had acted as
both general foreman and foreman. Under the terms of the
collective-bargaining agreement, the foremen and subfore-
men were paid at an hourly rate established through
collective bargaining.
With respect to the electrical work on the project here
involved, there were electricians working in the powerhouse
where Phillips and Sturgis were employed, also in a tunnel
and as maintenance electricians There were also electri-
cians involved in winding generators on some occasions.
The electricians would not necessarily be confined to
working in one of these activities and would be shifted from
one type of work to another when needed, except that the
record suggests that the electricians would have to indicate
their willingness to work in the tunnel when they were
hired; otherwise they would not be assigned tunnel work
The electricians' shop and project office were located
about a mile and a half above the powerhouse, where
Phillips and Sturgis were assigned. The road to the
powerhouse was in part rather steep and narrow and part
on the level The electricians' workday commenced at 8
a in. at the electrical office. Time spent going to and from
places of work, such as the powerhouse, was included in the
working time for which they were paid.
As provided by the collective-bargaining agreement, the
instructions to the journeymen electricians during working
hours must be given by or relayed through the foremen or
subforemen. This precluded any other member of manage-
ment, including the electrical superintendent or the
electrical general foreman, giving orders or instructions to
the journeymen electricians if they were working under a
foreman or subforeman The number of foremen and
subforemen on the project was regulated by the
collective-bargaining agreement and was keyed to the
number of journeymen electricians on the project. There
were various disputes between Respondent and the Union
relative to foremen and subforemen on the project, both
before and after and during the employment of Sturgis and
Phillips. Under the terms of the collective-bargaining
agreement, a foreman was not permitted to work with tools.
Judging from the position that Sturgis and Phillips took
with respect to driving the manhaul truck by electrical
foremen, they were interpreting the agreement to include a
pickup truck as a tool. The manhaul truck was used to bring
electricians from the electrical shop down to the power-
house at the start of the day and to return them to the
electrical shop at the end of the day.
When Respondent made a requisition from Local 684
hiring hall, it was obligated to accept any qualified
journeyman electrician. In the case of a layoff, Respondent
could select any employee without reference to seniority.
The number of electricians required at any one time varied
because of changing factors, including the necessity of
synchronizing the electrical work with the work of the other
crafts The number of electricians employed by Respondent
on the Don Pedro project ranged from 10 to 30. During the
course of 3 years on the project, there were many occasions
when electricians, as well as other crafts, were employed for
short time periods and then laid off.
After Phillips and Sturgis were employed on July 23,
1969, and up to September 15, 1969, nine other electricians
were employed. Most of the extra electricians were required
in order to complete scheduled work in the power house. In
addition, an extra electrician was needed for tunnel work
and some extra electricians were needed in connection with
winding a generator, commencing on September 15, 1969.
After Phillips, Sturgis and another electrician were laid off
on September 26, 1969, no electricians were hired for a
period of over 4 months After September 26, 1969,2 two
additional electricians were laid off on November 17, one
was laid off on November 21, two were discharged, and two
quit on January 29, 1970.
When Phillips and Sturgis reported to work on the
morning of July 23, General Foreman Leo Grooms took
them to the powerhouse and introduced them to Bill Lively
as their foreman At this time, Lively was working at the
powerhouse by himself. However, Lively on July 23 was
classified as a subforeman, even though under the terms of
the agreement Respondent was not obligated to pay him
subforeman wages until there were three journeymen or
four electricians, three of whom had to be journeymen,
working under him.
C The Events and Considerations Relating to the
Alleged Discriminatory Discharges
The circumstances affecting the question of discrimina-
tion, for all practical purposes, are common to Sturgis and
Phillips. They will be considered by first setting out the
factors relied on by the General Counsel and then those
considered significant by Respondent in its contention that
no unlawful discrimination occurred.
On July 24, 1969, the day after Phillips and Sturgis
reported for work, Phillips complained to Finis Todd, the
president of Local 684, IBEW, who was also the job
steward, concerning General Foreman Leo Grooms driving
the manhaul truck which was used to transport the
electricians from the electrical shop to the place of work.
On the afternoon of July 24, Sturgis queried Maintenance
2 Unless otherwise indicated, all dates herein are 1969
GUY F. ATKINSON COMPANY 805
Foreman Herbie Vale concerning Grooms' working with
tools, and Vale responded that this was nothing new.3
On the morning of July 23, Sturgis had complained to
Union Steward Todd about Grooms' working with the
tools in the electricians' shop. A few days later, at the
weekly safety meeting of electricians presided over by
General Foreman Leo Grooms, Sturgis raised a question
about Grooms' presiding over the safety meeting instead of
the job steward. Grooms replied that he intended to
continue presiding over the safety meeting, and it
developed during the cross-examination of Sturgis that his
question was based on his experience on previous jobs
where the job stewards had presided over safety meetings.
There was no contractual provision requiring the union
steward to preside at the safety meetings. At the same
meeting , Sturgis raised a question about the lack of
permanent seats in the manhaul truck. Also at this meeting,
Phillips complained about alleged unsafe conditions in
connection with permitting laborers to move pumps At the
end of the meeting, Grooms asked the electricians for their
off-the-record views about foremen working with tools.
Phillips stated in his opinion it was a violation of the
collective-bargaining agreement.
After this meeting, Sturgis, Phillips, and an electrician
named Hurley returned to the powerhouse. Lively was also
present. Respondent's records show that he was a working
foreman at this time, and, by the terms of the
collective-bargaining permit, he was permitted to work
with the tools. He also gave direction to the other three
electricians as to the work to be performed
On the morning of July 28, Union Business Representa-
tive Gill informed project Superintendent Goodier and
project Business Manager Mitchell of complaints about
foremen working with tools, failure to observe the 20-mile-
per-hour posted speed limit when driving the manhaul
truck, and the unsatisfactory nature of the temporary seats
in the manhaul truck. Mitchell agreed to correct the
conditions covered by the complaints.4
Later, on the same morning of July 28, Lively told Sturgis
and Phillips that he had been reduced from a working
foreman to ajourneyman electncian.5
On the morning of July 30, as Grooms was about to drive
the manhaul truck, bringing the electricians to the
powerhouse, Phillips asked Grooms to move over, and
Phillips drove the truck.
i Since the foremen were union members, they were paid an hourly rate
and were dispatched by Local 684, and it was Respondent's obligation to
obtain all its electricians through the Union, a question is suggested as to
what degree Respondent should be bound by conversations of this type of
"foremen" since it is apparent that a community of interests among hourly
paid employees who were union members would be substantial,
particularly since the position of foreman and subforeman is frequently
held by the electricians working as journeymen at one time or another on
the same or different projects It seems likely these circumstances would
tend to inhibit a foreman from taking a stand on behalf of an employer
which would jeopardize his position with the Union or union members In
any event, in the case at hand other considerations are dispositive of the
central issue and the resolution of the binding effect of statements by
foremen on Respondent is not essential in this matter
4 The testimony of Sturgis and Phillips suggests that Respondent was
dilatory in correcting the alleged safety problems It seems likely that they
were overstating the case, inasmuch as Sturgis testified they complained
about all the problems, including the speed of the manhaul truck, up
through September 26 However, on cross-examination he conceded that
At the August 4 safety meeting of the electricians, Phillips
and Sturgis raised complaints about safety matters. The
subjects covered involved questions of laborers' handling
certain pumps , seats in the manhaul truck , and requests for
an iron bar for the manhaul truck and that tools and
equipment be kept out of the truck while employees were
being transported. Phillips and Sturgis also urged that the
working areas be cleaned up by the other crafts instead of
leaving the debris where the electricians had to perform
their work. Sturgis and Phillips also raised questions about
the speed of the manhaul truck.
At the August 11 safety meeting, Phillips and Sturgis
again complained about the speed of the manhaul truck,
the cluttered condition of the jobsite, lack of drinking
water, and the continued handling of certain electrical
cords by the laborers.
Finis Todd, the job steward, testified that Phillips and
Todd raised more safety complaints than the other
electricians.
On the afternoon of August 15, as the electricians were
being transported to the electrical shop after finishing work
at the powerhouse, Sturgis' hat fell from his head, and the
truck had to stop while he retrieved it. Sturgis estimated the
truck was going between 30 and 50 miles an hour. After
Sturgis' complaints, Job Steward Todd assigned Phillips to
drive the manhaul truck, which he did for the duration of
his employment with Respondent.
On the morning of August 27, Phillips and Sturgis
initiated a work stoppage among the electricians at the
powerhouse which lasted for about an hour .6 Lively, who
had been the working foreman at the powerhouse when
Sturgis and Phillips first reported, called the electrical shop
on the truck radio and then reported to Phillips and Sturgis
and the other electricians at the powerhouse that Job
Steward Todd would be on the scene in a few minutes.7
Todd and Electrical Superintendent Reed then had a
discussion during which Reed was reminded by Todd there
were enough electricians working to require a foreman and,
according to Todd, Reed agreed "right away," and told
Todd that Lively should be made foreman. At the same
time , Leo Grooms was reinstated as general foreman and,
according to Phillips, was "very satisfied with the new
arrangement."
It would appear that the complaints of Phillips and
Sturgis in July 24, which eventuated in Grooms and Lively
after August 17 the speed of the manhaul truck was no longer a problem,
inasmuch as Phillips , his working partner, was assigned to drive it
Moreover, the credited testimony of Eugene Reed , the electrical
superintendent , established that 90 percent of the complaints about safety,
irrespective of their source , were corrected promptly Some of the
complaints about safety problems stemmed from the actions of other crafts
working on the project and these were beyond the immediate control of
electrical supervision to correct
5 As noticed previously, Lively was Gamed on the payroll as a
subforeman or a working foreman and was paid an hourly wage at a higher
rate than a journeyman electrician Unless Lively had three other
journeymen electricians working with him, he was not entitled to be paid at
the subforeman rate, and apparently Respondent had been paying Lively
at a higher rate even though it was not obligated to do so at all times he
was paid a subforeman rate
6 The collective-bargaining agreement provided for adjustment of all
disputes and grievances through machinery set forth in the agreement
7 Additional electricians were assigned to the powerhouse after the
employment of Phillips and Sturgis
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being reduced to foreman and journeyman, respectively,
were counterbalanced as far as the effect on Grooms and
Lively by their initiation of work stoppage on August 27. As
a result of this stoppage, Lively was made a foreman which
was a higher position than he had when Phillips and Sturgis
first reported, and Grooms was reinstated as general
foreman.
The General Counsel argues that Rogers was made a
foreman at the same time. The record facts do not support
this contention, and the ultimate findings in this matter
would not be affected whether or not Rogers was made a
foreman on any particular date. The credited testimony of
project Business Manager Mitchell fixes the date Rogers
became a foreman as of September 15.
According to the testimony of Albert Palmer, on
September 10, Rogers talked with Palmer and told him
Respondent was getting ready to hire more electricians. He
also told Palmer that Lively had told him that Sturgis and
Phillips were being watched as troublemakers and advised
Palmer to "stay away from those two guys " Palmer was
hired on September 15 and laid off in a force reduction on
November 17, 1969. He had previously worked for
Respondent from July 24, 1968, to August 16, 1968.
On September 17, 1969, Job Steward Finis Todd left the
job and went to the hospital for about 2-1/2 months. Just
before he left, Lively told him "Sturgis and Phillips were on
the watch " In the same conversation, Lively told Todd that
officials of the Respondent had timed Sturgis and Todd
while taking their coffeebreaks.8
Moses Cox was employed by Respondent as an
electrician from September 17, 1969, until January 19, 1970,
when he was discharged for misconduct. Prior to his
discharge, he was involved in a heated conversation with
Lively over the question of the speed of the electricians'
manhaul. With reference to the afternoon of September 26,
1970, the day Phillips and Sturgis were terminated, Cox
testified while riding in the manhaul he overheard Grooms
say "Now we are rid of the troublemakers we can drive as
fast as we want to up this hill." 9
There was also an episode which involved moving a
pipebending machine by the use of a crane. The object was
to move the machine from one area of the power house to
another. On this occasion, Sturgis ignored the direction to
remove tools from the machine before it was moved.
Although concededly a hazard to other workmen because
they might fall off during the moving process, Sturgis,
8 The General Counsel in his brief cites the conversation between
Rogers and Lively as a link in establishing Respondent's motivation in
unlawfully discriminating against Sturgis and Phillips Respondent argues
this conversation, together with other evidence about coffeebreaks, bolsters
the contention that Sturgis and Phillips were selected in a force reduction
because of their poor productivity
9 The term "troublemakers" referring to Sturgis and Phillips was also
used by project Business Manager Mitchell in explaining to Union
Business Manager Gill the reason for the termination of Sturgis and
Phillips on September 26 Since it is unlikely that Mitchell would use the
term to connote persons insisting on adherence to collective-bargaining
contractual provisions when speaking with a union business representative,
it follows that he used the term to characterize the conduct of Sturgis and
Phillips working in an ostensibly slow manner and displaying an attitude
that they would work at any speed they chose Such a finding is consistent
with the witness chair demeanor of Sturgis and Phillips It is also consistent
with their conduct in initiating a work stoppage without going through the
grievance procedures and ignoring the orders of the electrical foreman
according to his own testimony refused to obey the
directions of Grooms and would not move them until he
was directed by his own foreman, Lively. Sturgis justified
his conduct by the collective-bargaining agreement which
provided that electricians should only take directions from
their own foremen.10 Although this episode involves alleged
insistence on strict compliance with the
collective-bargaining agreement by Sturgis, it will be
discussed in connection with factors advanced by Respon-
dent as demonstrating that this episode detracted from any
credence that should be attributed to Sturgis' concern for
safety as being a contributing factor in his termination.
There are several aspects of the record supporting
Respondent's contention that Phillips and Sturgis were
discharged for their poor productivity.
In early August, they first came to the attention of project
Business Manager Patrick Mitchell. He observed them
sitting drinking coffee for about half an hour shortly after 8
a.m. at the powerhouse site near the shack where the
electricians' tools were stored. Mitchell explained they
came to his attention because the other electricians near
them were working and also because he thought it unusual
for employees to be dunking coffee at that time of the
day.ii The tendency of Sturgis and Phillips to take more
than the usual length coffeebreaks is supported by the fact
that Union Job Steward Todd on his own volition timed the
duration of their coffeebreak and warned them that they
were taking excessive time. This action of Todd supports
the testimony of Mitchell with respect to his observation of
Sturgis and Phillips.
After Sturgis and Phillips had been brought to Mitchell's
attention by the coffeebreak episode, he continued to
watch them and noticed that they were performing their
work in an unusually slow manner and were doing a lot of
visiting with relatively little work being accomplished. He
inquired as to their names after he had noticed them
initially. Sturgis and Phillips were the subject of discussions
between project Superintendent Goodier and Mitchell.
Goodier had made similar observations with respect to
Sturgis and Phillips and had discussed their work habits
with Mitchell.
Mitchell had noticed the electricians' manhaul being
driven very slowly after Phillips was assigned to drive it.
He noticed it being passed by many vehicles carrying other
craftsmen On one occasion he followed the manhaul being
driven by Phillips on the way to the power house and
instead of following them and then initiating a complaint with their union
It also seems likely Grooms was using the term in this sense , although, even
if he were not, it would be of no significance since Grooms did not play a
part in the decision to terminate Sturgis and Phillips
10 The question is suggested why Sturgis, an experienced electrician,
would not on his own volition remove the hazardous tools In connection
with his action of only following orders from his foreman and ignoring the
direction of General Foreman Grooms because of his literal interpretation
of the collective-bargaining contract, a question is raised as to whether
Sturgis was complying with the basic principles of the collective -bargaining
agreement which recites in part "All will benefit by continuous peace and
by adjusting any difference by rational , common-sense methods "
ii There was no contractual right of electricians to take a coffeebreak
Job Steward Todd testified that it was a custom of the electricians to take a
coffeebreak The electrical superintendent , Reed, and the electrical
foreman, Grooms , questioned Todd about this inasmuch as the other crafts
were not taking coffeebreaks Todd told them that it was a custom and the
electricians were going to continue taking their coffeebreak
GUY F. ATKINSON COMPANY 807
ascertained its speed at 3 to 4 miles per hour. During the
time Phillips was driving the electricians' manhaul, other
crafts at the project referred to it as "the hearse."
Reed, the electrical superintendent who had long
experience with electrical construction work, credibly
testified that Sturgis and Phillips, while potentially
competent electricians, on this particular project were
"dragging their feet." Grooms, the general foreman, also
confirmed this and added that for reasons of their own
Sturgis and Phillips were not working efficiently on this
particularjob.
With respect to coffeebreaks, Job Steward Todd testified
the electricians' coffeebreaks were customarily taken
around 10 a.m. and 2:30 p.m. and they should not exceed
10 minutes. Before leaving the job to go to the hospital on
September 12, Todd in an evening telephone conversation
warned Phillips that he was being watched and he should
not take so much time on his coffeebreaks and asked
Phillips to relay the telephone message to Sturgis because
he did not want to make a long distance call for this
purpose. Todd testified that it was Lively, the foreman of
Sturgis and Phillips, who had given him the information
that Sturgis and Phillips were being watched.
On or about September 24, General Foreman Grooms
had arranged for a crane owned by Respondent and used
by several crafts to move a pipebending machine in the
powerhouse area. Grooms instructed Foreman Lively to
have two men rig the pipebending machine so that it could
be lifted by the crane.
Versions of this incident given on the one hand by
Phillips and Sturgis, and on the other by General Foreman
Grooms are not identical. However, the essence of the
episode demonstrates that Phillips and Sturgis were again
unreasonably causing a delay; that their conduct indicated
they had no real concern for safety; and that their action in
this connection was a demonstration of an approach to
work which had low productivity, a forseeable result of
suck work attitude. It might be added that this episode also
supports the proposition that Sturgis and Phillips were not
following the basic principle of the collective-bargaining
agreement which required adjusting differences by
"rational, common- sense methods."
According to the version of Phillips and Sturgis, after
Lively told them to rig the pipebending machine to the
crane, they saw Grooms signaling the rig into place and
about to hook the crane to the pipebendmg machine.
Sturgis insisted Grooms step aside, and Sturgis attached the
crane to the pipebending machine. At this time there were
some tools on the machine which had to be removed before
being lifted by the crane or they might fall and injure
someone. Grooms told Sturgis and Phillips to remove the
tools but they ignored him. Grooms then told Lively to give
the order to remove the tools which Lively did and the tools
were removed by Sturgis and Phillips.12
Grooms' version is that after he had instructed Lively to
have Phillips and Sturgis rig the crane and after Lively had
12 Phillips and Sturgis, in ignoring the order of Grooms, were relying on
a contractual provision reciting that an electrician only had to take orders
from an immediate foreman or subforeman, and since Grooms was one
step removed in the management hierarchy, they refused to follow his
directions about removing the tools from the pipebending machine As
noted previously, the question is suggested as to why experienced
instructed them, they were quite slow in responding. While
Grooms was waiting, he commenced to prepare the crane
hook to lift the pipebending machine and then Sturgis
appeared and said he would do the work and Grooms
stepped aside. With reference to removing the tools that
were a hazard on the pipebending machine, Grooms recalls
again saying at least twice, "Get those damn shoes off that
bender, let's get it out of here."
Grooms estimated the job took 30 minutes rather than
the 10 minutes it should have taken. Grooms was a credible
witness and his testimony in connection with the estimate
of the time is accepted as establishing that the conduct of
Sturgis and Phillips eventuated in requiring an excessive
amount of time to rig and move the pipebending machine.
Grooms explained it was important that the crane be put to
efficient and expeditious use as it was a very expensive
machine and there were other crafts waiting for it.
In his testimony Grooms did not specify that he
addressed Phillips and Sturgis directly with reference to
removing tools from the pipebending machine. It seems
likely that when he said "Get those damn shoes off that
bender," he was addressing Sturgis and Phillips directly and
no doubt was frustrated and exasperated at their slow pace
in following Foreman Lively's directions to rig the crane
and move the pipebending machine. Whether or not
Grooms gave the instructions directly to Sturgis and
Phillips with reference to removing the tools from the
pipebending machine, the episode demonstrates the
attitude of Sturgis and Phillips in choosing their own slow
pace of working and, when considered with other similar
episodes, appeared calculated to deliberately provoke the
supervisory personnel of Respondent. Moreover, in
connection with this pipebending machine episode, Phillips
conceded that the better practice would be to obey the
order of the general foreman and then to report the
grievance to the union authonties.13
On September 26, Phillips and Sturgis were assigned a
task which involved bending a pipe and which was to be
done at the electrical shop. They began their work at 8:30
a.m. and completed it at 1:30 p.m., taking approximately 4
hours. The credited testimony of Electrical Superintendent
Reed places 2 hours as the maximum time the job should
have taken. Reed was a person of long experience in the
electrical construction work. In addition to his opinion
being based on his years of experience and observation, in
this particular case Reed based his testimony on similar
tasks that were assigned and performed after Sturgis and
Phillips had been terminated.
The decision to terminate Sturgis and Phillips was based
on the consensus of Project Manager Goodier, Project
Business Manager Mitchell, and Electrical Superintendent
Reed. Mitchell, who had observed the "feet dragging" of
Sturgis and Phillips along with Goodier, had mentioned to
Reed several times that Reed should keep in mind getting
rid of Phillips and Sturgis when a layoff was scheduled.
Because of the work schedule, a layoff was planned for
electricians required an order to remove tools which were obviously a
hazard to other workmen
13 The fact that Job Steward Todd at this time was in the hospital was a
matter of no significance Phillips being a knowledgeable union negotiator
would have had no difficulty in bonging this matter to the attention of the
union business agent
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 26. At the beginning of that week, Reed had
tentatively decided to lay off Sturgis and Phillips on
September 26. The excessive time taken by Sturgis and
Phillips in bending the pipe on September 24 was in Reed's
words "the straw that broke the camel's back." After
Phillips and Sturgis were laid off on September 26, during
the next 4 months Respondent's electrical journeymen
component was reduced by five, and no additional
electricians were hired. Electrical Superintendent Reed
credibly testified that the reason several electricians were
hired in the weeks preceding September 26 was primarily
because of the necessity of completing a portion of the work
in the powerhouse on schedule. This situation required a
concentrated effort for a short period necessitating a
greater electrical force. One other electrician in addition to
Sturgis and Phillips was laid off on September 26.
Inasmuch as Reed testified it was common to shift
electricians to different working areas in the project and
since the overall crew remained reduced after the layoff of
Sturgis and Phillips, there is no basis for assuming
Respondent maneuvered its work force for the purpose of
getting rid of Sturgis and Phillips.
CONCLUDING FINDINGS
Mitchell and Goodier did not know of any complaints
made by Sturgis and Phillips relative to safety matters until
after their discharge. Reed heard part of the safety meetings
but did not recall anything particular about the complaints
of Sturgis and Phillips. Both Mitchell and Reed credibly
testified that the type of complaints that were made relative
to safety matters were routine, that they happened at all
projects, and that the same type of complaints that were
made by Sturgis and Phillips were made prior to their
employment and after they were terminated. Inasmuch as
the decision to terminate Phillips and Sturgis was the
consensus of Mitchell, Goodier, and Reed, it is found that
the matter of Phillips and Sturgis raising questions relative
to safety matters did not influence their decision, as they
were unaware of any alleged unusual complaints about
safety when Phillips and Sturgis were terminated.
The record does demonstrate that shortly after their
employment, Sturgis and Phillips antagonized both Lively
and Grooms by initiating complaints which eventuated in
their demotion, although this was probably offset to some
extent when Phillips and Sturgis initiated a work stoppage
which in turn eventuated in having Grooms and Lively
reinstated to the position of general foreman and foreman,
respectively. The record also demonstrates ample reason
for Grooms in particular being incensed on a personal level
at Phillips and Sturgis for their ignoring his orders and the
manner in which they took over tasks such as driving the
manhaul or rigging the crane However, this is a matter that
is not relevant to the issues here, as Grooms and Lively did
not participate in the decision to terminate Phillips and
Sturgis. Moreover, the dispute between Phillips and Sturgis
and Grooms, and to some extent Lively, was primarily an
intraunion matter in which Respondent probably had
relatively little concern if any. Union Job Steward Todd
confirmed that complaints about foremen working with
tools were made before Phillips and Sturgis were hired and
after they were terminated, and consequently this type of
complaint was no novelty to Respondent.
The term "troublemakers" was applied to Phillips and
Sturgis by Mitchell. As previously indicated, he used this
term in explaining to Business Manager Gill why Phillips
and Sturgis were terminated. It is clear Mitchell used it in
the sense that Phillips and Sturgis were flaunting a slow
work pace or stalling on the job and exhibiting a somewhat
truculent attitude in their insistence in performing their
work at a rate noticeably slower than their potential.
Mitchell was in charge of labor relations and was a man of
long experience in dealing with construction unions,
including electrical unions, and would scarcely use the term
"troublemakers" to indicate Sturgis and Phillips were
causing trouble by their insisting Respondent adhere to a
collective-bargaining agreement when describing them to
the union business manager.
It is also apparent that Sturgis and Phillips were
troublemakers in the sense that they departed from the
basic principles outlined in the collective-bargaining
agreement which recited that any difference should be
adjusted by "rational, common-sense methods." When
Sturgis and Phillips initiated an hour's work stoppage to
obtain a foreman, and when they refused of their own
volition to remove tools from the pipebending machine that
might be a hazard and ignored the directions of General
Foreman Grooms to do so because he was not their
immediate foreman, it is clear that they were not following
the basic principles outlined by the collective-bargaining
agreement.
The sincerity of Phillips and Sturgis in connection with
alleged concern about safety matters is severely challenged
by their refusal to voluntarily remove tools from the
pipebending machine before it was moved by the crane.
With reference to the safety meetings, it is clear that many
other electricians raised similar or the same problems as did
Phillips and Sturgis. Mitchell credibly testified that the
questions about foremen and the other matters which
Phillips and Sturgis stated they raised were routine on the
job and his testimony is accepted that he regarded this as
commonplace when such complaints were relayed to him
by Gill and were a common and continuing occurrence on
any construction project. Gill did not inform Mitchell
which electricians initiated the complaints.
In sum, it is found that the sole reason for the decision to
include Sturgis and Phillips in the layoff of September 26
was they had come to the attention of Respondent's
managing personnel and in their opinion Sturgis and
Phillips were not performing adequate work as journeymen
electricians.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce or in activities affecting commerce within the
meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of the Act.
Upon the foregoing findings of fact , conclusions of law,
GUY F . ATKINSON COMPANY 809
and the entire record , and pursuant to Section 10(c) of the ORDER
Act, I hereby issue the following recommended:
The complaint is dismissed in its entirety.