Babcock & Wilcox

National Labor Relations Board - Board Decisions

Apr 1, 1981

255 N.L.R.B. 480 (N.L.R.B. 1981)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Babcock & Wilcox, B & W Construction Company
and Robert Mays. Case 9-CA-14115
April 1, 1981
DECISION AND ORDER
On July 23, 1980, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions to the Administrative Law Judge's Deci-
sion and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and the
brief and has decided to affirm the rulings, find-
ings,; and conclusions of the Administrative Law
Judge only to the extent consistent herewith, and
to dismiss the complaint.
The Administrative Law Judge concluded that
Respondent discharged employees Mays and Miller
because of their protected concerted activity,
thereby violating Section 8(a)(l) of the Act. We
find merit in Respondent's exceptions to this con-
clusion.
According to the credited testimony, the essen-
tial facts are as follows: Respondent was engaged
to erect two steam generators at the Reid Power
Station at Sebree, Kentucky. Carpenters were hired
to work on the Sebree project, and they were cov-
ered by the provisions of the collective-bargaining
contract that Respondent had with the United
Brotherhood of Carpenters and Joiners of America
(the Carpenters). Marvin Ransom was the carpen-
ter foreman on the job and he supervised eight car-
penters in his work crew, including Robert Mays
and Arthur Miller.
The carpenters constructed and maintained the
scaffolds at the worksite and, until the scaffolding
was completed, much of the other work at the pro-
ject could not be started. During May 1979,2 the
carpenters were working on the scaffolding for
each of the four pulverizers (referred to as A, B, C,
and D) on the project site. The pulverizers are tall
stack-like structures which feed fuel to the steam
generator.
Sometime prior to the afternoon of May 24, the
scaffold on Pulverizer B had been completed
except for the installation of wooden handrails. At
approximately 2 or 2:30 p.m. that day, Rudy
Samic, the construction superintendent and Ran-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producrs,
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 her find-
ings.
2 All dates are in 1979. unless otherwise indicated.
255 NLRB No. 68
som's superior, was passing Pulverizer B and no-
ticed several pipefitters standing about idly. Samic
asked why, and Ransom said that the pipefitters
were supposed to be working on Pulverizer B but
that the pipefitter steward would not permit them
to do the work until the handrails on the pulverizer
had been installed. Samic then told Ransom that
"we had to get that scaffold up, because we were
getting behind in schedule on the coal pipe."
At 8 a.m. on May 25, the eight carpenters on the
job gathered at the gang shack and Ransom gave
them their work assignments for the day. The
record does not reveal what the assignments were
but after a detailed analysis of the testimony the
Administrative Law Judge concluded that none of
the carpenters was assigned to work on Pulverizer
B. After receiving their orders, the carpenters left
the gang shack and Ransom headed for the office.
Before he reached the office, however, Samic
stopped him and asked whether he "had them [sic]
handrails on the scaffold on Pulverizer B," so the
pipefitters could start working. Samic was "rather
upset over the handrails," and the Administrative
Law Judge found that Ransom untruthfully re-
plied, "Yes sir, I am having it done. I have got two
men on it." Ransom then turned back to the area
where the pulverizer scaffolds were being erected.
Mays and Miller, as well as most of the other
carpenters, were unhappy with Ransom's occasion-
al practice of assigning different carpenters to start
and finish a particular scaffold. This practice was
considered unsafe since errors in workmanship,
such as not tightening bolts by the starting carpen-
ters, would not be apparent to carpenters assigned
to finish the scaffold and might surface only after
an accident had occurred. Consequently, Mays and
Miller were displeased that morning when Ransom
assigned them to complete a scaffold started by
other carpenters. When they arrived at the scaf-
fold, Mays and Miller did not send their helper,
Lonnie Adcock, to obtain the materials needed to
start on the job but decided first to discuss the
matter with Ransom. They asked Wiseman, the job
steward, to find Ransom while Mays and Miller
waited in the pulverizer area.
Shortly after Wiseman left, Ransom appeared.
Apparently upset after his conversation with
Samic, he spotted Adcock and asked him why
there were no materials for Mays and Miller to
work with. Before he could answer Mays said that
Adcock had not gotten the materials because Mays
had not told him to, adding that he had been
"waiting on" Ransom in order to speak to him
about the job assignment he and Miller had re-
ceived that morning. Mays asserted that it was dan-
gerous for carpenters to work on scaffolds that
BABCOCK & WILCOX 481
were started by others and that Ransom should not
make such assignments. Ransom replied that he
had made this kind of assignment before and would
do so again. The exchange became unpleasant and
both Mays and Ransom were angry. Ransom asked
heatedly whether Mays and Miller were going to
complete the scaffold. Mays replied that he "truth-
fully" did not know. Miller, who had not partici-
pated in this discussion, said nothing. Ransom said,
"If you're not, I'll get somebody else." Mays told
him to do whatever he wanted to do. Ransom then
told them to work on trash chutes and assigned
two other carpenters to the scaffold job.
Later that morning Ransom met with Samic and
told him that Mays and Miller refused to install
handrails on the Pulverizer B scaffold. Samic re-
ported this to Project Manager James Wilson, as-
serting that "apparently we had two fellows that
had refused a direct order, to carry out an instruc-
tion that we passed on to our foreman that we
wanted safety rails put up and these fellows refused
to do it." Samic asked Wilson what should be done
and Wilson replied, "Well, if that is the case . .. I
think we better let them go."
Shortly thereafter, Samic and Ransom found
Mays and Miller and told them that they were
being discharged because they refused to do a job.
The collective-bargaining agreement which was
in effect between Respondent and the Carpenters
included the following provision:
The Employer agrees there will be no lockout
and the Union agrees that there will be no
stoppage of work or any strike of its members
either collectively or individually until said
dispute or misunderstanding has been referred
to the International Office of the Union and
arbitrated between such International Office of
the Union and the Home Office Representative
of the Employer.
There is no contention that Mays and Miller
were not bound by this provision nor did the Gen-
eral Counsel rely on Section 502 of the Act in liti-
gating the case.
The Administrative Law Judge found that Mays
and Miller were discharged on May 25 because of
conduct which constituted concerted activity pro-
tected by Section 7 of the Act and not because
they "refused" in violation of the collective-bar-
gaining agreement to perform jobs assigned to
them by Ransom. She concluded that Mays and
Miller did not refuse to do the work, relying on
the absence of the word "refuse" during Mays'
May 25 confrontation with Ransom, and on Ran-
som's failure at that time to inform Mays and
Miller that if they did not do their jobs they would
be discharged.
Contrary to the Administrative Law Judge, we
find that Mays' and Miller's failure to perform their
work assignment, coupled with Mays' statements to
Ransom, established that Mays and Miller were re-
fusing to do the work and that her reliance on
Mays' omission of the word "refuse" to find other-
wise was misplaced.3 We further find that, having
validly concluded that Mays and Miller were refus-
ing to do their work, Ransom had no obligation
under the Act to inform them that they would be
discharged if they continued to refuse to do the as-
signed job.
As stated above, on the morning of May 25,
shortly after making the work assignments for the
day, Ransom came upon Adcock, Mays, and
Miller, who were standing idly by the pulverizer to
which they had been assigned. Ransom asked
Adcock why he was not getting the materials for
the job since they could not begin without them.
Mays interjected that he was responsible for not
having sent Adcock for the materials because they
had been "waiting on" Ransom to discuss their job
assignment.4 Thus from the outset Ransom was on
notice that the work to which Mays and Miller had
been assigned was not being performed and that it
appeared that they would not do the work. As the
discussion between Mays and Ransom progressed,
it was reasonable for Ransom to conclude from
their conduct that Mays and Miller were in fact re-
fusing to do the work. Specifically, in response to
Ransom's query as to whether Mays and Miller
were going to complete the pulverizer scaffolding,
Mays replied that he "truthfully" did not know.5
Taken in conjunction with the failure to obtain ma-
terials for the job, it was reasonable for Ransom to
interpret this response as a refusal. This was con-
firmed at the conclusion of the Mays/Ransom ex-
change when Ransom said, "If you're [not going to
do the work], I'll get somebody else," and Mays
told Ransom to do whatever he had to do.
In short, we find that by their conduct Mays and
Miller led Ransom reasonably to believe that they
3 We further find the Administrative Law Judge's emphasis on Ran-
som's motives in discharging Mays and Miller similarly to be misplaced.
We note that Ransom's motives, whatever their nature, were unconnect-
ed with Mays' and Miller's complaints concerning unsafe practices. As
Mays admitted, until their discussion on the morning of May 25, Ransom
was unaware of these dissatisfactions and there is nothing in the record to
support the Administrative Law Judge's finding that it was Mays' and
Miller's professed dissatisfactions and not the failure to do their assigned
job that brought about their discharges.
4 We note that Miller could have sent Adcock for the materials and
thus conclude that, by failing to do so. he acquiesced in Mays' decision
not to begin work until Mays and Miller spoke to Ransom.
5 Mays testified that, during this discussion with Ransom. Mays ".
was confused and [he] probably should have said 'Yes, I will, but don't
give me this kind of assignment again."' Regardless of any "confusion"
on May's part, and regardless of what he "should have said," Mays' re-
sponse to Ransom, under the circumstances, indicated that he was unwill-
ing to do the work
BACOCK & WILCOX
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were refusing to do their assigned job. Since such a
refusal violated the "no stoppage of work" clause
in the collective-bargaining agreement, Respondent
was within its rights in discharging them. Accord-
ingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, concurring:
I concur in the result.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard before me in Owensboro, Kentucky, on
May 1, 1980, pursuant to a charge filed on July 20, 1979,
and amended on September 10, 1979, and a complaint
issued on September 14, 1979. The question presented is
whether Respondent Babcock & Wilcox, B & W Con-
struction Co., violated Section 8(a)(l) of the National
Labor Relations Act, as amended (the Act), by discharg-
ing employees Robert Mays and Arthur Miller.
On the basis of the entire record, including the demea-
nor of the witnesses, and after due consideration of the
briefs filed by Respondent and by counsel for the Gener-
al Counsel, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation which is en-
gaged as a contractor in the construction of the Reid
Power Station at Sebree, Kentucky. During the 12
months preceding the issuance of the complaint, a repre-
sentative period, Respondent purchased and received
goods and materials, valued in excess of $50,000, which
were shipped to its Sebree, Kentucky, facilities directly
from points outside Kentucky. I find that, as Respondent
concedes, it is engaged in commerce within the meaning
of the Act, and that assertion of jurisdiction over its op-
erations will effectuate the policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all times relevant herein, Respondent was bound by
a collective-bargaining agreement with the United Broth-
erhood of Carpenters and Joiners of America (the Broth-
erhood), which required Respondent, inter alia, to hire
journeyman carpenters through the Brotherhood's dis-
trict councils or local unions having jurisdiction in the
area. The Brotherhood affiliates with jurisdiction over
the area which included the Sebree power plant were
locals forming the Lower Ohio Valley District Council
(the District Council).
Respondent's contract with the Brotherhood included
an undertaking to "observe the working conditions estab-
lished or agreed upon by the [Brotherhood] and the rec-
ognized bargaining agency of the locality in which any
work of our Company is being done." The agreement
between the District Council and the local employer bar-
gaining agency provides that the selection and determi-
nation of foremen are the employer's responsibility; that,
when two journeymen carpenters are employed on a
given project, one shall be paid as a foreman; and that,
when a foreman supervises the work of six or more jour-
neymen, he is not required to work with his tools. In
April 1978, at a time when no carpenters were working
on the Sebree power plant job, Respondent hired carpen-
ters James Wiseman and Marvin E. Ransom through
Carpenters' Local 601, a District Council affiliate, to
work on that job. Wiseman was designated as the car-
penter steward on the job, and Ransom was designated
as the carpenter foreman. Ransom had never before
served as foreman on any job, and never received any
training as a foreman. However, he was still carpenter
foreman at the time of the May 1979 events material
here, when Respondent had eight nonsupervisory car-
penters on that job.
About November 1978, Ransom called Local 601 for
two carpenters, and asked who was "on the book."
Local 601 follows the practice of referring the carpenters
whose names have longest appeared on the out-of-work
list, unless the employer objects to these individuals. Re-
spondent's contract with the Brotherhood gives Re-
spondent the right to reject applicants referred by Broth-
erhood affiliates. Local 601 advised Ransom that its re-
ferral practice called for the referral of Robert Mays,
and asked Ransom whether he had any objection to
Mays. Ransom replied that Mays would be "fine." Mays
and Ransom, who is several years older than Mays, had
known each other since Mays was 8 years old; he was 29
at the time of the May 1980 hearing. They had gone to
the same grammar school, and on one or two occasions
had gone hunting and fishing together. Mays testified
that, before these excursions, their relationship had been
friendly at times and unfriendly at times.' After about
May 1978, a year before Mays' discharge, they saw each
other only on the job, and did not see each other social-
ly. Ransom testified that, before Mays' November 1978
hire on the project, he and Ransom were "real good
friends." Mays testified that as of May 25, 1979, the date
of his discharge, "I felt like [Ransom] was a friend," but
Mays denied wanting Ransom to do anything for him.
Respondent's carpenters work in pairs. About early
January 1979, Mays learned that Respondent planned to
hire two more carpenters. Mays thereupon told Ransom
that Mays had worked on another project with Arthur
Miller, said that Miller was a good worker, and asked
Ransom to consider hiring him. Under the practice fol-
lowed at the Local 601 hiring hall, Miller would be re-
ferred if Respondent requested him by name, because he
had already worked on the project and had then been
I At the time of the May 1980 hearing, Ransom resided in Sportsville.
Kentucky. Mays' address when he was discharged in May 1979. Spotts-
ville's population is about 500.
---
BABCOCK & WILCOX 483
laid off for lack of work. In accordance with Mays' re-
quest, Ransom did ask for Miller by name, and, accord-
ingly, Local 601 referred him to the Sebree job. After
Miller's rehire on January 29, 1979,2 he and Mays
worked as a team.
B. Events Allegedly Leading to the Discharges
The work to be performed by carpenters on the
Sebree job consisted primarily of the construction and
maintenance of scaffolds for other trades, especially the
pipefitters. Among the scaffolds to be constructed was a
scaffold at each of four pulverizers in a row which is re-
ferred to in the engineering drawings as "Unit 2." The
drawing describes these four pulverizers as A, B, C, and
D, respectively, and they were so referred to at the hear-
ing,3 but they were not so described during the employ-
ee-management discussions involved in this case.
At an undisclosed date and hour before early after-
noon on Thursday, May 24, the scaffold on pulverizer B
had been completed except for the installation of wooden
handrails. That afternoon Construction Superintendent
Rudy Samic, who was Carpenter Foreman Ransom's su-
perior, noticed that several pipefitters were standing idly
by. At 2 or 2:30 p.m., 2 or 2-1/2 hours before the 4:30
p.m. end of the workday, Samic ascertained from
Ransom that the reason why the pipefitters were not
working was that they were supposed to be working
from the pulverizer B scaffold and the pipefitter steward
had pulled all six off that scaffold because of the absence
of handrails. 4 As soon as Samic found out why the pipe-
fitters were idle, he told Ransom that "we had to get
that scaffold up, because we were getting behind sched-
ule on the coal pipe" (see infra, fn. 5). Installation of the
handrails would take an hour and a half, and could prob-
ably have been completed by the close of that same May
24 working day.5 Ransom did not assign anyone to in-
stall these handrails on May 24.
At 8 a.m. on Friday, May 25, Ransom met in the gang
shack with Respondent's eight carpenters, and issued
them their job assignments for that day. For the reasons
set forth infra, I find that at that time he did not instruct
any carpenters to install the handrails on the pulverizer
B scaffold, and that he directed Mays and Miller to com-
plete the pulverizer C scaffold or (less probably) the pul-
verizer D scaffold." Mays and Miller voiced no immedi-
ate objections to this assignment. After all the assign-
ments were issued, the carpenters, including Mays,
Miller, and Ransom, left the gang box. Ransom headed
2 All dales hereinafter are 1979 unless otherwise indicated.
3 The engineering drawing admitted into evidence does not include
pulverizer A.
4My finding as to the hour of the day when this Samic-Ransom con-
versation occurred is based on Samic's testimony, and is also set forth in
Respondent's brief. For demeanor reasons, I do not accept Ransom's tes-
timony that the conversation occurred "late in the afternoon."
b In view of this circumstance, the consequent probabilities of the situ-
ation, and demeanor considerations. I do not accept Ransom's testimony
that Samic told him to have the handrails installed the first thing on the
following morning. Rather, I accept Samic's version of the conversation.
See, also, infra, fn. 7, and attached text.
6 For purposes of this case, it can make no real difference whether
Mays and Miller were assigned to the pulverizer C scaffold or to the Pul-
verizer D scaffold; the only material point is that they were not assigned
to the pulverizer B scaffold
toward the office. In front of the office, he encountered
Samic, who asked Ransom whether he "had them
handrails on that scaffold on Pulverizer B," so that the
pipefitters could start working from that scaffold. 7
Ransom, who testified that Samic was "rather upset over
the handrails," untruthfully replied, "Yes sir, I am having
it done. I have got two men on it." Then, Ransom aban-
doned his walk to the office and, instead, headed for the
feeder floor, which was the work area nearest the unit 2
pulverizer scaffolds.
With the possible exceptions of Charlie Lewis and
David Reynolds, all the rank-and-file carpenters on the
project-including Mays, Miller, and Steward Wise-
man-had discussed among themselves what they be-
lieved to be favoritism in Foreman Ransom's job assign-
ments and what they believed to be his unsafe practice in
sometimes assigning carpenters to complete scaffolds
which had been started by other carpenters. However,
there is no evidence that any members of management
had ever been advised of the carpenters' dissatisfaction in
this respect. Reynolds and Lewis were the carpenters
who before May 25 had worked on the scaffold assigned
to Mays and Miller on May 25. However, when issuing
work assignments on the morning of May 25, Ransom
had assigned Reynolds and Lewis to constructing trash
chutes. It is unclear whether this was easier work than
finishing the scaffold which they had started, but the
trash-chute assignment was at ground level and was
shown to be safer work.8 After being advised in the
gang box of the initial May 25 work assignments, Mays
and Miller proceeded to the feeder floor, which is at a
level above the gang box and is the work level nearest
the unit 2 pulverizer scaffolds. They were accompanied
by Lonnie Adcock, a laborer with whom Mays and
Miller usually worked as a three-man team. When the
three reached the feeder floor, they found that carpen-
ters could not begin work on the scaffold immediately,
because the necessary materials were not in the area.
Such an absence of material occurs frequently, and the
carpenters have to wait, sometimes as long as 2 hours,
until the necessary materials arrive at the worksite. If
Mays and Miller had intended to begin the scaffold as-
signment themselves as promptly as possible, Mays or
(less probably) Miller would have instructed Adcock to
obtain the materials.9 However, Mays remarked to
7 If Samic had not expected Ransom to assign the handrail installation
until that morning, he could not have expected the 1-1/2 hour installation
job to be completed by that hour. Accordingly, the quotation, from Ran-
som's testimony, indirectly corroborates the credibility finding described
supra, fn. 5.
s Miller testified at one point that, although the trash-chute work was
safer work than the scaffold work, the trash-chute work was not easier.
However, Miller elsewhere testified that one of the participants in the
Miller-Mays discussion immediately following Ransom's initial assign-
ments said that Ransom was "taking care of' Reynolds and Lewis and
giving Miller and Mays "all the harder work to do." Miller further testi-
fied that as to the scaffold on which Reynolds and Lewis worked before
May 25, and to which Miller and Mays were initially assigned on May
25, the easier part of the work was the beginning. Mays credibly testified
to the belief that, except in emergencies, Ransom assigned Lewis and
Reynolds to work on the ground and others to work on scaffolds.
"Ordinarily, Mays would assume this responsibility, but Miller also
had the authority to issue such instructions to Adcock. Upon receiving
Continued
BABCOCK & WILCOX
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller that he "hated to get out on something that may
not be tightened up, to fall or something like that." Mays
was thereby referring to his belief, which he had previ-
ously discussed with other carpenters including Miller,
that a carpenter who worked for the first time on a
partly completed scaffold might suffer a 75-foot fall in
consequence of a possible failure by the carpenters who
had previously worked on it to get around to the final
tightening of some of the points or pieces.10 Miller told
Mays that Miller agreed. Also, Mays and Miller talked to
Steward Wiseman about the foregoing objections to
Mays' and Miller's job assignment, and asked Wiseman
to get hold of Foreman Ransom, whereupon Wiseman
left the area. Neither Mays nor Miller instructed Adcock
to obtain the materials, which, of course, would have
been needed by whichever carpenters that eventually
completed the scaffold.
While these discussions were taking place, Mays,
Miller, and Adcock were standing at the head of the
north stairway which led up to the feeder floor, and at a
point where pulverizer D was the closest pulverizer and
pulverizer C was the next closest. The employees had
reached this point no earlier than 8:05 p.m., and perhaps
as late as 8:15.11 At or about 8:20 a.m.,12 and before he
could have been contacted by Wiseman, Foreman
Ransom appeared. Samic had just reminded him about
the handrails on the pulverizer B scaffold, and he was
cursing in a loud voice, but not directly at anybody.
Ransom asked Adcock why there was no material for
Mays and Miller to work with. Mays said that Adcock
had not brought any material because Mays had never
told him to get any, and that Mays had been "waiting
on" the foreman in order to speak to him about the job
assignment. Mays went on to say that he did not like get-
ting on a scaffold which somebody else had started, that
on several previous occasions Ransom had assigned to
complete a scaffold two partners who had not started the
scaffold, and that such an assignment was "just a little
dangerous" because the second set of partners, unlike the
first set, might not know that at quitting time some parts
such instructions, Adcock would have obtained the materials, attached
them to the hook of a crane, and had the crane operator move them to
the feeder floor near the scaffold. Then, Adcock or another laborer
would have removed the materials from the crane.
ID On cross-examination, Mays testified that nothing prevented the
newly assigned carpenters from checking the last part of the work done
by the last two workmen, "but you might climb up on it and not think
. .. about checking it . . . Ralph Woods didn't." Respondent's regional
representative, William R. Klingler, testified that scaffold building is
"(t]remendously significant because people working on there are going to
put their lives in the hands of those that built the scaffold."
I This finding is based on the evidence that the gang-box assignments
had been given out at 8 a.m. The gang box is about 6 minutes from the
office, and the office is 5 to 10 minutes from the site of the pulverizers.
The record fails to show the distance from the gang box to the site of the
pulverizers, or the relative positions of these three locations.
12 This finding is based on Mays' testimony, which is corroborated by
Samic's testimony that his conversation with Ransom early that morning
just outside the office occurred shortly after 8 a.m.; Ransom's testimony
that this conversation took place about 6 minutes after he completed the
8 a.m. assignments and that, immediately thereafter, he headed for the
area of the unit 2 pulverizers; and Mays' testimony that walking from the
office area to the area of the unit 2 pulverizers takes 5 to 10 minutes. In
view of the foregoing, I do not accept Ransom's testimony that he did
not reach the area of the unit 2 pulverizers until 9 a.m., or Miller's testi-
mony that Ransom arrived at 8:30.
of the scaffold were up but not tight. Ransom said that
he did not care about what Mays did not like, that
Ransom had taken this kind of assignment before, and
that he would do it again. Then, Ransom heatedly asked
whether Mays and Miller were going to complete the
scaffold. Mays replied that he "truthfully" did not know;
Miller said nothing. Ransom said, "If you're not, I'll get
somebody else." Mays told him to do whatever he
wanted to do. Then, Ransom told Miller and Mays to go
to work on the trash chutes. These were being assembled
in a lean-to shack near the office, and Ransom said that
he would be "over there" in a few minutes-meaning,
according to Ransom's testimony, that he was going
over to the office to talk to Samic about the matter. It is
uncontradicted that, during this conversation, Ransom
never told the employees that they would be discharged
or disciplined unless they performed the scaffold work.
Mays credibly testified that, the previously summarized
remarks aside, the employees were never instructed or
ordered to perform this work. Mays and Miller credibly
testified that, such remarks aside, they never refused to
perform this work.
After Mays and Miller had left the area, Ransom hap-
pened to see in the area the laborer who usually worked
with Reynolds and Lewis, the carpenters who before
May 25 had constructed the already-standing portion of
the scaffold assigned on May 25 to Mays and Miller, but
whose initial May 25 assignment was the construction of
the trash chutes. Ransom told this laborer to send over
Reynolds and Lewis to complete the scaffold whose
completion had been Mays' and Miller's initial May 25
assignment. 1 3
Mays credibly testified that, during his conversation
with Ransom, both of them were "mad." Miller credibly
testified that, up to the point when Ransom said he
would get someone else to do the job (at which point
Ransom "calmed down some"), both Ransom and Mays
were angry. More specifically, Miller credibly testified
that Ransom spoke somewhat louder and faster and used
more profanity than normal, that his face turned red, and
that Mays raised his voice somewhat and used some pro-
fanity. 14
Ransom testified that, after Mays and Miller had left
for the trash-chutes assignment, Ransom had a conversa-
tion with Steward Wiseman (see infra) which ended
about a half hour after Ransom had reached the area of
the pulverizers-that is (on the basis of the credible testi-
mony about when Ransom had arrived), about 8:50 a.m.
There is no credible direct evidence as to which carpen-
ters installed the handrails on the pulverizer B scaffold
or when such installation was begun, and there is no
direct evidence at all about the date or hour of comple-
tion of their installation, a -1/2-hour job. Some time
after 11 a.m., more than 2 hours after reassigning Mays
'3 My finding that Ransom spoke to the laborer after Mays' and Mill-
er's departure is based on Mays' testimony that he did not know how
Reynolds and Lewis were given their reassignment. I believe Ransom
was mistaken in testifying that Mays and Miller were still there.
" My findings as to the Ransom-Mays conversation are based mostly
on a composite of Mays' and Miller's testimony. For demeanor and other
reasons summarized infra, I discredit much of Ransom's version of the
conversation.
BABCOCK & WILCOX 485
and Miller, Ransom went into Construction Superintend-
ent Samic's office.1 5 Ransom told Samic that Mays and
Miller had "refused" to install the "handrail" or "safety
guardrail" on the scaffold about which Samic had re-
minded Ransom shortly after 8 that morning-that is, the
pulverizer B scaffold.'6 Then, Samic went into the office
of Project Manager James Wilson and reported that "ap-
parently we had two fellows that had refused a direct
order, to carry out an instruction that we passed on to
our foreman that we wanted safety rails put up and these
fellows had refused to do it." Samic asked Wilson what
he thought should be done. Wilson said, "Well, if that is
the case . . . I think we better let them go."
Samic and Ransom thereupon approached Mays and
Miller in the lean-to shack and told them that they were
being discharged because Ransom had told Samic that
Mays and Miller had refused to do a job and Samic did
not need people like that working for him. Samic went
on to say that Mays and Miller could pick up their
checks in the office. At this point, Samic turned around
and left the lean-to shack. Mays and Miller gathered up
their tools, went into the office, and called Samic out of
his office to talk to him about the situation. Mays said
that he had not refused an order, and alleged that
Ransom had been discriminating against Mays and Miller
and in favor of others with respect to job assignments.
Miller said that he did not understand Samic's firing
Mays and Miller like that, that they had not refused an
order, and that Miller had not said a word. Samic said
that Miller's actions indicated that he had refused to do
the job, that Samic had nothing against Mays and Miller
personally, but that Ransom was Samic's foreman and
Samic had to take his word for what was going on.
Mays and Miller then got their checks, picked up their
tools, and left the job. ? Thereafter, Samic arranged for
an entry in Respondent's records stating that both men
were discharged for "Refusing to perform the duties as
directed."
A few days later, Mays and Miller came back to the
project in the company of Local 601's business agent,
Howell. They went with Ransom into Project Superin-
tendent Wilson's office, and asked him to reinstate the
employees. Wilson said that they were discharged, that
was the way it was going to stay, and that he did not
want to hear any more about it. After everyone but
a5 My findings as to the time of day is based on Samic's testimony,
indirectly corroborated by the testimony of Mays and Miller about how
long they worked on the trash chutes before their discharge. I do not
accept Ransom's hour of 10:10 a.m. In any event, the area of the pulver-
izers is a 5- to 10-minute walk from Samic's office, and Ransom gave no
testimony about how he spent the remaining portion of the time between
the alleged Ransom-Wiseman conversation, which ended about 8:50 a.m.,
and his conversation with Samic.
1" This finding is based on Samic's testimony and credible portions of
Ransom's testimony. I do not accept Ransom's further testimony that,
when Samic asked who had done this, Ransom replied Mays, whereupon
Samic asked whether Miller was making an attempt to do the job and
Ransom replied no. Such testimony by Ransom presumes more knowl-
edge by Samic about the incident than he probably had at that point.
Moreover, such testimony by Ransom is inconsistent with the credible
evidence (see infra) regarding Respondent's reasons for later taking
Miller back.
17 My findings as to the discharge interviews are based on a composite
of Mays' and Miller's testimony. For the reasons set forth infra. I do not
accept the versions of Ransom and Samic.
Wilson had left his office, Miller asked Ransom why he
had fired Miller and Mays. Ransom replied, "I didn't fire
you. Mr. Samic did." Then, Howell asked that Samic be
sent for. When Samic arrived, Howell asked him to rein-
state both employees, but Samic refused. Ransom then
said, in the presence of the entire group, that Miller had
not refused to work, and that Ransom would like to hire
him back. Samic said, "I thought you said he refused
too." Ransom said, "No, he didn't." Howell asked Samic
to take back Miller, at least, on the ground that, accord-
ing to Miller, he had not "verbally" said he would not
do the job. Ransom told Samic that the representation at-
tributed to Miller was true, and Samic agreed to recon-
sider Miller's case. A few minutes later, Ransom private-
ly told Samic that firing Miller might have been a little
hasty because he did not "verbally state" that he would
not do the work, that Miller's excuse was that he did not
have any material, and that Ransom would like to get
Miller's job back for him. In Ransom's presence, Samic
then talked the matter over with Project Superintendent
Wilson, who told Samic to do whatever he thought was
right. After Ransom and Samic had left Wilson's office,
Ransom again asked Samic to rehire Miller, on the
ground that he had not "verbally" refused to do the
work and could not have done it all by himself. Then,
Samic came out and told the employees and the union
representatives that Respondent would reinstate Miller,
but would not reinstate Mays because Mays had specifi-
cally refused. There is no evidence that anyone present,
including Mays and Miller, then denied that Mays had
"specifically refused." Howell asked Samic to change
Mays' termination from discharge to layoff in order to
enable him to collect unemployment benefits. Respond-
ent refused. During this conversation, nobody asserted
that Respondent had fired Mays and Miller for protest-
ing favoritism. Thereafter, on May 31, Miller was admit-
tedly reinstated.
Later, Mays, who at that time lived in Spottsville,
Kentucky, telephoned the National Labor Relations
Board's Regional Office in Cincinnati, Ohio, about 215
miles from Spottsville. Mays said that he had been fired
and wanted somebody to investigate his discharge. The
Board agent on the telephone said that no investigation
could begin until he signed a charge. Thereafter, the
Board agent mailed Mays a charge form which con-
tained the typewritten allegation that Respondent had
violated Section 8(a)(1) and (3) of the Act by discharging
Mays in order to discourage membership in Carpenters
Local 601. Although Mays did not think that he had
been fired for this reason, and believed that he had been
misunderstood by the Board agent to whom he talked on
the telephone, he signed the charge on July 16, 1979, and
mailed it back to the Regional Office. The charge states,
"Wilfully false statements on this charge can be punished
by fine and imprisonment." On September 4, 1979, Mays
signed an aended charge alleging that Respondent had
violated Section 8(a)(1) by discharging him and Miller
"in order to discriminate against them because of their
protected concerted activities."
BABCOCK &WILCOX
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all relevant times, the collective-bargaining agree-
ment between Respondent and the Brotherhood included
the following provisions:
The Employer agrees there will be no lock-out
and the Union agrees that there will be no stoppage
of work or any strike of its members either collec-
tively or individually until said dispute or misunder-
standing has been referred to the International
office of the Union and arbitrated between such In-
ternational Office of the Union and the Home
Office Representative of the Employer.
As previously noted, Miller and Mays had been referred
for employment by Local 601, which is contractually ob-
ligated to refer employees on a "non-discriminatory
basis," and both of them successfully induced Local 601's
business agent to try to persuade Respondent to take
them back. Moreover, Mays signed a charge (which,
however, he believed to be inaccurate) alleging that Re-
spondent had discharged him to discourage membership
in Local 601. This evidence aside, there is no evidence
that Mays and Miller were "members" of any affiliate of
the Brotherhood. However, the General Counsel makes
no contention that they were not "members" within the
meaning of the foregoing contractual provisions. Also,
although Respondent is engaged in the building and con-
struction industry within the meaning of Section 8(f) of
the Act, the General Counsel disavowed on the record
any contention that any part of this contract is not bind-
ing upon the members of the bargaining unit because of
Section 8(f), and stated that that might give the same
effect to any provisions of this contract that I would if
the building and construction industry were not involved
at all. Further, the General Counsel disclaimed on the
record any reliance on Section 502 of the Act.
C. Reasons for Credibility Findings
i. The identity of the scaffold assigned to Mays and
Miller and related matters
Foreman Ransom credibly testified that on May 25 the
pulverizer B scaffold was complete and ready to be used
by the pipefitters, except that there were no handrails on
the platform. Ransom further credibly testified that on
that day a needle beam, pickboards, and some more tube
scaffold had to be installed on the pulverizer C scaffold;
the pulverizer D scaffold had "[n]othing even near com-
pletion"; the pulverizer A scaffold was complete and had
already been used by the pipefitters; and no scaffold at
all had to be modified. Also, Ransom testified that, when
he "went up to where [Miller and Mays] were supposed
to be putting the handrails on the scaffold," they were
standing with laborer Adcock at the head of the north
stairway to the feeder floor-that is, more than 65 feet
from pulverizer B-and that pulverizer D was the one
they were standing the nearest to. The record shows that
pulverizer C was the pulverizer nearest to pulverizer D,
that it was the south stairway which was closest to pul-
verizer B, and that the north stairway and the south
stairway were equidistant from the gang box, in other
words, that the natural route to pulverizer B from the lo-
cation where Mays, Miller, and Adcock received their
assignments would have been the south stairway. Mays
testified that, after leaving the gang box, he and Miller
went to the area where they were supposed to be work-
ing; that the scaffold to which he and Miller were as-
signed was "one of the two middle ones"-that is, the
pulverizer B or the pulverizer C scaffold; that "]ust
about all" of the scaffold assigned to him and Miller had
to be done-a description which would not fit the pul-
verizer B or A scaffolds, but would fit the pulverizer C
and D scaffolds; and that "[t]he north stairway was di-
rectly over the pulverizer or beside the pulverizer we
were working on"-a description squarely applicable to
pulverizer D, but more applicable to pulverizer C than
to pulverizer B.18 Miller testified on cross-examination
that he did not know "to this day" which of two scaf-
folds he had been assigned to, but, as previously noted,
Mays' conversation with Ransom in Miller's presence
took place at a point beyond the northernmost (D) pul-
verizer, with the next nearest pulverizer being pulverizer
C.1 9 On rebuttal, Miller credibly testified that, when
giving him his work assignment that morning, Ransom
told him to complete hanging the pickboard-a task
which admittedly had to be performed on the pulverizer
C scaffold but not on the pulverizer B scaffold. 20 Fur-
thermore, Mays testified without contradiction that, in
trying to induce him and Miller to begin work on the
scaffold immediately, Ransom made no reference at all
to any particular immediate need for its completion-an
urgent matter for the pulverizer B scaffold but not for
the other uncompleted scaffolds. 2 ' In view of the fore-
going, I find that on May 25 Ransom assigned Mays and
Miller to the pulverizer C scaffold or (less probably) the
pulverizer D scaffold. In accordance with this finding, I
credit the testimony of Mays and Miller that neither
Ransom nor Samic made any reference that day to
18 The pulverizers are in a row, with pulverizer A on the south and
pulverizer D on the north. The north stairway is a little north of pulver-
izer D.
I9 Miller's description on cross-examination of one of the two scaffolds
he might have been assigned to is plainly inapplicable to the pulverizer B
scaffold, and appears more appropriate to the pulverizer C scaffold than
to the pulverizer D scaffold. His description of the other scaffold does
not really fit any of them, although it appears more appropriate to the
pulverizer A and B scaffolds than to the pulverizer C or D scaffold. He
testified that this other scaffold had already been used as such and was to
be modified by the construction of an addition. Ransom credibly testified
that the pulverizer A scaffold had been completed and used, and that
none of these scaffolds had to be modified in any sense.
20 Miller also testified at this point that Ransom indicated that the
pickboard was to be hung on the pulverizer C scaffold. Also, at one point
during Miller's initial direct examination, he testified that he thought, but
was not positive, that he had been assigned to the pulverizer C scaffold.
However, I give no weight to this testimony, in view of his testimony
during his first cross-examination that he did not know "to this date"
which scaffold he had been assigned to.
2' Miller testified that he could not recall any mention of having to get
the pipefitters up on the scaffold. Mays testified that he was aware that
the pipefitters were "waiting on" the assigned scaffold and, in effect, that
they could not use it until the handrails were on it. However, all the unit
2 scaffolds were for the pipefitters' use, and at least two of the three in-
completed ones were supposed to have handrails. Miller testified that at
least one of the two scaffolds to which he might have been assigned (see
supra, fn. 19) would have called for cable handrails, not the wooden
handrails to be installed on the pulverizer B scaffold.
BABCOCK & WILCOX 487
handrails that needed to be constructed. 22 I discredit the
contrary testimony of Samic (not corroborated by
Ransom as to Samic's remarks in Ransom's presence) and
Ransom, and discredit Ransom's testimony that he as-
signed Mays and Miller to the pulverizer B scaffold. 23
In contending that Mays and Miller were assigned to
the pulverizer B scaffold, Respondent relies partly on
Samic's testimony to that effect. However, Samic neces-
sarily relied on what Ransom had told him, and I con-
clude that Ransom told Samic that Mays' and Miller's
May 25 conduct was directed to the pulverizer B scaf-
fold in order to conceal the fact that Ransom, an inexpe-
rienced foreman, had forgotten the urgent May 24
instructions of Samic, his superior, to have the handrails
installed on that scaffold in order to permit its use by six
pipefitters who were standing idly by and who were sup-
posed to be using it to perform a job which was getting
behind schedule. 24 That Ransom did so forget is a likely
explanation for his admitted failure to direct anyone on
May 24 to install the handrails (although this task could
probably have been completed by the end of the day),
and fits in with the credible testimony about what oc-
curred on May 25.
2. The May 25 discussion between Foreman
Ransom and employees Mays and Miller
As previously noted, my findings about the May 25
discussion between Foreman Ransom and employees
Mays and Miller are based mostly on the testimony of
the employees, whom for demeanor reasons I regard as
more truthful witnesses than Ransom. Furthermore, the
employees' personalities as evinced on the witness stand
seemed to me more consistent with the conduct which
they testimonially attributed to themselves than with the
conduct which Ransom testimonially attributed to them.
Moreover, whether Mays had (as Ransom testified) flatly
refused to perform the work or had merely made the re-
marks to which the employees testified, it is improbable
that they would have failed to advise Ransom of the
safety considerations which underlay their conduct, and
even more improbable that Ransom would not have
asked them or their steward for an explanation, if none
had been volunteered, for their not wanting to work on a
scaffold which had been started by somebody else. 25
22 Because Samic's May 25 knowledge of the incident was limited to
what Ransom told him, his failure to mention the handrails is significant
mostly because, if he had, Mays and Miller would perhaps have correct-
ed him.
23 Ransom testified that he assigned Greg Cron to the pulverizer C
scaffold that day, and did not testify that anyone was assigned to the pul-
verizer D scaffold. However, Ransom professed inability to recall his as-
signments that morning to Eddie Lord or Eddie Joe Herrin, although the
fact that all of Respondent's eight carpenters worked in pairs shows that
one Eddie must have been working with Wiseman on a scaffold not con-
nected to the pulverizers and the other Eddie must have been working
with Cron. Mays' testimony suggests that Cron's partner was Eddie
Lord.
24 Ransom's absentmindedness would appear to be even more blame-
worthy in view of his failure to take immediate action upon learning, as
he did before Samic learned, about why the six pipefitters were idle.
22 Mays and Miller both denied previously talking to Ransom about
the employees' objection to such assignments. Nor is there any evidence
that Ransom had previously learned of such objections from any other
source. Further, the fact that he had assigned Mays and Miller to a scaf-
fold started by Reynolds and Lewis. while assigning the latter two em-
However, Ransom gave no testimony that he had re-
ceived or requested such an explanation. Furthermore,
although the substance of even Ransom's version of the
employees' complaint compels the inference that they
had not previously worked on the scaffold to which they
were assigned on May 25 and Ransom testified that, on
that date they were assigned to the pulverizer B scaffold,
Ransom testified that he did not recall whether they
were assigned to that scaffold on May 24.26 Moreover,
as previously indicated, I discredit Ransom's testimony
that his directions to Mays and Miller specifically men-
tioned the installation of handrails, and credit the em-
ployees' testimony otherwise. Accordingly, I discredit
Ransom's testimony that Mays said in Steward Wise-
man's absence and again in his presence that the employ-
ees would not put the handrails on the scaffold, and
credit the employees' version of the conversation, includ-
ing their denials that Wiseman was present at any time
during Mays' conversation with Ransom.
Respondent's counsel contended at the hearing and in
his brief that Steward Wiseman's failure to testify should
create an adverse inference against the General Counsel
about the content of the May 25 Mays-Ransom conversa-
tion, on the ground that the General Counsel admittedly
knew before the hearing that Respondent was taking the
position that Wiseman was present when Mays allegedly
told Ransom that Mays was refusing to do the work,
whereas Respondent did not know before the hearing
that the General Counsel's witnesses Mays and Miller
would deny that Wiseman was present during any part
of Mays' and Miller's conversation with Ransom. On the
other hand, the General Counsel contends in his brief
that Wiseman's failure to testify should create an adverse
inference against Respondent, on the ground that at the
time of the hearing Wiseman was still employed by Re-
spondent. Respondent's counsel stated at the hearing that
Respondent had specifically considered the possibility of
calling Wiseman and had forborne for "reasons of labor
relations policy," as well as for the reason that Respond-
ent had thought his testimony would be cumulative. Re-
spondent's counsel stated on the record, immediately
before resting, that he was deliberately refraining from
asking me in advance to deal with the question of wheth-
er I would like to have Wiseman's evidence. Both Mays
and Miller denied before the 1:05 lunch break in the 1-
day hearing, which was held on a Thursday between 10
a.m. and 5 p.m., that Wiseman was present during this
conversation. Neither party requested a continuance of
the hearing, which was held about 30 miles from the
construction site, in order to produce Wiseman. I con-
clude that his failure to testify does not create an adverse
inference against either party.
Respondent also suggested at the hearing that Mays'
testimony is unworthy of belief because he signed a
charge alleging that he had been discharged to discour-
ployees to perform work of which Mays and Miller were capable, sug-
gests that the risks of changing employees in midscaffold had never oc-
curred to Ransom. Moreover, Ransom eventually did assign completion
of the disputed scaffold to the carpenters who had started it.
26 However, the credible evidence fails to show whether on May 24
any carpenters worked on the pulverizer B scaffold.
BABCOCK & WILCOX
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age membership in Carpenters Local 601, although he
did not think he had been discharged for this reason and
believed that he had been misunderstood by the Board
agent who prepared the charge.2 7 However, Mays testi-
fied that he had telephoned the Regional Office to obtain
an investigation of his charge, and that the Board agent
then told him that no investigation could begin until he
signed a charge. I infer that he signed his charge in order
to obtain a prompt investigation rather than for any pur-
pose to mislead. Accordingly, I give little weight to
Mays' having signed the original and inaccurate charge.
In any event, the critical portions of his testimony were
corroborated by Miller.
3. The discharge interview
Ransom and Samic both testified that, in the lean-to
shack, Samic asked Mays and Miller whether they had
"refused" to do what Ransom had told them to do, and
that Mays admitted it. Samic, but not Ransom, further
testified that during this same conversation Samic asked
the employees whether they had instructed the laborer
not to carry the material in, that Mays admitted that too,
and that Mays went on to say that he did not feel it was
right to go to work on something that somebody else
had not completed. Also, Samic, but not Ransom, testi-
fied that during this same conversation Miller remarked
that, because he had said nothing during the Ransom-
Mays conversation, Miller should not be discharged, and
Samic said that Miller's actions spoke as loud as his
words, and he was being let go because he made no
effort to do anything. Because of my previous finding
that Mays and Miller were never told their job on the
scaffold consisted of installing handrails, that Mays did
not say to Ransom on the jobsite that Mays and Miller
refused to work on the scaffold, and that Mays neither
told the laborer not to bring materials nor advised
Ransom on the jobsite that Mays had issued such instruc-
tions, I discredit the testimony of Samic and to some
extent Ransom that Samic accused them of such conduct
and Mays admitted it. 28 Also, because Ransom left the
area after the lean-to conversation, because he did not
corroborate Samic's testimony that this conversation in-
cluded references to Mays' complaints about Samic's as-
signment policy and Miller's silence during the Mays-
Ransom conversation on the feeder floor, and because
Mays and Miller testified that they discussed these sub-
jects with Samic in the office a few minutes later, I do
not accept Samic's denial of any conversation with them
in the office.
27 Mays testified that, before his and Miller's conversation with their
foreman about the employees' objection to their work assignment, they
had told their union steward about these objections and had asked him to
get in touch with their foreman. While Mays further testified that the ste-
ward could not have gotten in touch with their foreman before his con-
versation with Mays which led to the employees' discharge, Mays may
not have mentioned this during his telephone conversation with the
Board agent, who when drafting the original charge may have inferred
that there had been such a contact and that Mays' union activity in com-
plaining to his steward may have played a part in Mays' discharge.
28 Ransom's and Samic's credibility is further drawn into question by
the conflict in their testimony about whether Ransom asked the employ-
ees if they wanted the job steward. For demeanor reasons, I credit
Samic's denial, which is corroborated by Mays and Miller.
D. Analysis and Conclusions
The undisputed evidence shows that, on various occa-
sions before May 25, many of the carpenters, including
Mays and Miller, had discussed among themselves what
they believed to be deficiencies in Foreman Ransom's as-
signment policies, including what they believed to be his
unsafe practice in sometimes assigning carpenters to
complete scaffolds started by other carpenters. More-
over, after receiving such an assignment from Ransom
on May 25, Miller told Mays that Miller agreed with
Mays' expressed dislike of risking a fall by going out on
the assigned scaffold, and both of them told Steward
Wiseman that they wanted to talk to Foreman Ransom
about the assignment. The foregoing evidence establishes
that, when Mays and Miller refrained from immediately
taking the first step (telling Adcock to get the material)
in connection with continuing the erection of the scaf-
fold and when Mays explained the employees' inaction
to Ransom on the ground that the assignment to Miller
and Mays was "just a little dangerous" because the scaf-
fold had been started by others, Mays and Miller were
engaging in conduct which, at least absent a collective-
bargaining agreement forbidding it, constituted concerted
activity protected by Section 7 of the Act.2 9
Respondent contends that the action taken against
Mays and Miller did not violate the Act because Ransom
did not know that their action was concerted in nature.
Respondent points to the fact that, in explaining to
Ransom why his work assignment was not being carried
out, Mays said that "I" did not like getting on a scaffold
which others had started, and that "I" had failed to tell
the laborer to get the material. However, Miller credibly
testified that, after telling Mays that Ransom did not care
about what Mays did not like, Ransom asked whether
"you all" were going to complete the scaffold. Further-
more, Samic testified, that before the discharge of Mays
and Miller, Ransom told Samic that "two of the carpen-
ters .. . had refused to carry out instructions . . . the
two fellows that he had assigned to do that particular
job . . . had refused to do it." Also Samic testified that
he told Project Manager Wilson that "two fellows had
refused" to put up safety rails. Moreover, in connection
with Miller's May 25 protest of his discharge on the
ground that he had said nothing, both Samic and Miller
testified that Samic said Miller's actions indicated he had
refused to do the job. This evidence persuades me that
Respondent knew at all relevant times that Mays and
Miller were engaged in concerted activity in connection
with Ransom's initial work assignment.30
Respondent further contends that the employees' con-
duct was deprived of statutory protection by the con-
tractual provisions forbidding strikes and "stoppage[s] of
29 N.L.R.B. v. Halsey Taylor Co., 342 F.2d 406 (6th Cir. 1965); Morri-
son-Knudsen Company, Inc. and Hawaiian Dredging and Construction
Company. a Division of Dillingham Corp., a Joint Venture, 149 NLRB 1577
(1964), enfd. 358 F.2d 411 (9th Cir. 1966); Pacific Electricord Company,
153 NLRB 521 (1965), enfd. 361 F.2d 310 (9th Cir. 1966).
30 Accordingly, I need not and do not determine whether the com-
plaint should be dismissed if Respondent had in fact been unaware that
Miller shared in Mays' efforts to obtain a supposedly safer job assignment
for both of them. Cf. Air Surrey Corporation, 229 NLRB 1064 (1977), en-
forcement denied 601 F.2d 256 (6th Cir. 1979).
BABCOCK & WILCOX 489
work." Respondent contends that a refusal by Mays and
Miller to work on the assigned scaffold would constitute
a violation of this contractual provision, and that, even
accepting (as I have) the employees' version of their con-
versation with Ransom, what they said and did amount-
ed to a refusal which constituted a contractually forbid-
den work stoppage. I disagree with Respondent's charac-
terization of their conduct. Thus, the credible evidence
shows that, when Ransom asked whether Mays and
Miller were going to complete the scaffold, Mays replied
that he "truthfully" did not know, and that, although
Miller said nothing, Respondent at all times on May 25
acted as if it regarded Mays as speaking for Miller-an
assumption with which I agree in view of Miller's pas-
sive behavior during this incident. Further, at no time
that morning did Ransom tell the employees that, if they
did not perform the work, they would be disciplined or
discharged and, particularly because Mays had in fact
previously worked on scaffolds started by others, I
accept his testimony, in effect, that he would have
worked on the assigned scaffold had Ransom not pressed
the matter further rather than giving Mays another as-
signment. Likewise, because there is no evidence that
Miller had ever previously questioned management about
working on a scaffold started by others, and because
Miller at all material times followed Mays' lead in con-
nection with the job assignment and initiated no action
on his own, I conclude-as Respondent in effect later
concluded in reinstating Miller-that he would likewise
have worked on the assigned scaffold if Ransom had
pressed the matter further rather than giving Miller an-
other assignment. I am not persuaded otherwise by the
employees' failure to protest the scaffold assignment
before Ransom abruptly left the gang box, or to direct
laborer Adcock to obtain the materials for whoever was
eventually assigned to finish the scaffold. I perceive no
evidence that the employees' omissions were based on a
desire to impose economic pressure on Respondent to
induce a change in their assignment. In this connection, I
note that the employees asked Steward Wiseman to fetch
Foreman Ransom in order to tell him about their reser-
vations concerning the assignment; the fact that the
entire incident ended about 50 minutes after the begin-
ning of the workday, during part of which the employ-
ees were receiving their initial assignment, discussing the
assignment with Ransom for 15 to 30 minutes, and walk-
ing to one or the other of the jobs to which they were
assigned that morning; the absence of evidence that the
employees' pay was "docked" for any part of this period;
and the absence of evidence that, after learning that
Mays and Miller had not directed Adcock to obtain the
materials, Ransom himself asked Adcock to obtain them,
asked the labor foreman to issue such instructions to any
of the laborers, or made such a request to the laborer
who worked with the two carpenters transferred from
the trash chutes to the scaffold, and who happened to
come to the area immediately after Mays and Miller had
left the pulverizer area for the trash chutes.31 For the
foregoing reasons, I conclude that the conduct of Mays
a' Instead, Ransom chose to ask the laborer to send his carpenters to
the scaffold, a message which Ransom could have conveyed on the inter-
com.
and Miller in connection with their initial May 25 work
assignment did not constitute a violation of their obliga-
tions under the bargaining agreement. 32
Accordingly, I need not and do not determine whether
the employees' conduct as described by Ransom would
have constituted a breach of the bargaining agreement. 33
Nor need I consider whether Ransom's action in giving
them a reassignment to the trash-chute job effected by
condonation a loss of any right which Respondent other-
wise would have had to rely on the bargaining agree-
ment as a defense to their discharge. See, generally,
Brantly Helicopter Corporation, 135 NLRB 1412, 1417-18
(1962).34 However, in this connection, I note that after
reassigning the employees to work on the trash chutes,
on which they worked for more than 2 hours before
their discharge, Ransom never told his superiors about
any conduct by the employees in connection with the
pulverizer C or D scaffold to which they had been origi-
nally assigned. Rather, Ransom untruthfully reported to
Samic that the employees' conduct had been directed to
the job about which Samic had reminded Ransom that
morning-that is, installation of the handrails on the pul-
verizer B scaffold. Moreover, if Ransom had accurately
identified to Samic the scaffold where the incident oc-
curred, Samic might well have made a somewhat differ-
ent report to Wilson, who in consequence might have
reached a different decision about what personnel action
to take. Although the thrust of Ransom's and Samic's re-
ports was directed to the employees' alleged insubordina-
tion, Samic may well have regarded such alleged insub-
ordination as aggravated by its alleged connection with
the pulverizer B scaffold, which (unlike the scaffold to
which they were really assigned) was a rush job, and
whose urgency Samic may well have assumed was com-
municated to the employees. Indeed, if an accurate
report from Ransom about the scaffold involved in his
Mays-Miller conversation had led Samic to realize that
this conversation had occurred shortly after Samic's re-
marks to Ransom had reminded him of the forgotten
handrail job, Samic might have suggested to Wilson that
Ransom's anxiety and self-reproach about his absentmin-
dedness may have led him to overreact to, misappre-
hend, or to some extent provoke what the employees
had said and done.
Ransom's report to Samic about what Miller and Mays
had allegedly done was admittedly based on their con-
duct in connection with their scaffold assignment, and
aZ See Carlson Roofing Co.. Inc., 245 NLRB 13 (1979); see also Interna-
tional Harvester Co.. 12 LA 653 (1949); Commercial Steel Treat Corp.. 54
LA 1114 (1970); N.L.R.B. v. Electronics Equipment Co.. Inc., 194 F.2d
650, 653 (2d Cir. 1952).
" Cf. Chrysler Corp.. 63 LA 677, 684 (1974) Consolidated Edison Co.
of New York. Inc., 71 LA 238. 240-242 (1978).
a4 In denying such condonation, Respondent's brief asserts that, imme-
diately after making the reassignment, Ransom told Steward Wiseman
that Ransom was not going to "let it slide." Respondent's record refer-
ence refers to a conversation which allegedly iwcurred after Mays and
Miller left the jobsite, allegedly leaving Ransom and Wiseman still stand-
ing there. For the reasons set forth supra, part II. C, 2. I have found that
Wiseman was not on the job at any time while Mays, Miller, and Ransom
were all there. In any event. Ransom testified that Wiseman advised him
to "let it slide," to which Ransom replied that he was going to the office
to discuss the matter with Samic.
BABCOCK & WILCOX
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson's decision to discharge them was admittedly
based on Samic's report of what Ransom had told him. I
have found that the employees' conduct in connection
with that assignment was protected by Section 7 of the
Act. Accordingly, their discharge violated Section
8(a)(1) even assuming that no Section 7 protection would
have attached to the conduct which Ransom and Samic
inaccurately attributed to them. United Aircraft Corpora-
tion v. N.L.R.B., 440 F.2d 85, 92 (2d Cir. 1971);
N.L.R.B. v. E.D.S. Service Corporation, 466 F.2d 157, 158
(9th Cir. 1972), and cases cited; see also N.L.R.B. v.
Burnup & Sims, 379 U.S. 21 (1964); N.L.R.B. v. Cambria
Clay Products Company, 215 F.2d 48, 53-54 (6th Cir.
1954).
CONCLUSIONS OF LAW
i. Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Robert Mays and Arthur Miller, Re-
spondent has engaged in an unfair labor practice affect-
ing commerce within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom, and from
like or related conduct. Further, I shall recommend that
Respondent be required to offer Robert Mays immediate
reinstatement to the job of which he was unlawfully de-
prived, or, in the event such a job no longer exists, a
substantially equivalent job, without prejudice to his se-
niority or other rights and privileges previously enjoyed,
and make him and Arthur Miller (who has already been
reinstated) whole for any loss of pay they may have suf-
fered by reason of their discharge, from the date of their
discharge to the date of a valid offer of reinstatement, to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest as
described in Florida Steel Corporation, 231 NLRB 651
(1977).35 I shall also recommend that Respondent be re-
quired to post the appropriate notice.
[Recommended Order omitted from publication.]
35 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).