Blount Brothers Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 242 (N.L.R.B. 1988)

242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Blount Brothers Corporation and William C Kiser
Case 9-CA-23667
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 12 1988 Administrative Law Judge
George F Mclnerny issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel filed limited cross
exceptions a supporting brief and an answering
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings as
modified,' and conclusions and to adopt the rec
ommended Order as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Blount Brothers Corporation Belle
West Virginia its officers agents successors and
1 The judge recognized that the facts supported finding the Kisers en
gaged in protected concerted activity as well as union activity See fn
11 of the judge s decision However he found that the failure and refusal
to recall the Kisers violated only Sec 8(a)(3) even though the complaint
also alleged an independent 8(a)(1) violation We find merit in the Getter
al Counsel s limited cross-exceptions to the judge s failure to find an rode
pendent violation of Sec 8 (a)(1) We therefore also find that the Re
spondent violated Sec 8(a)(1) by failing and refusing to recall the Kisers
because of their complaints about the work reassignment i e protected
concerted activity under Interboro Contractors 157 NLRB 1295 (1966)
enfd 388 F 2d 495 (2d Cir 1967) approved in NLRB v City Disposal
Systems 465 U S 822 (1984)
In adopting the judge s finding that the Respondent violated Sec
8(a)(3) we rely on Interior Alterations 264 NLRB 677 (1982)
Finally we note that the record fails to support Respondents conten
non that the Kisers actions were not in good faith Rather the record
shows that the Kisers complaints were based on an honest and reasona
ble belief that the work in question should have been assigned to iron
workers
In this regard we note that the master agreement (GPA) which gov
erned the work of all crafts employed under the Respondents service
and maintenance contract with duPont provides that project mainte
nance conditions do not always justify adherence to craft lines and that
periodic review of work assignments will be made for the purpose of ad
justing assignments as appropriate to take care of changing needs This
language does not on its face preclude challenges to reassignments of
work Further the record establishes that the Kisers based their chat
lenge on a belief that as a matter of past practice the performance of a
minimum number of hours of work on a job constituted a jurisdictional
assignment As the existence or nonexistence of the past practice was not
definitively established we have no basis for finding the Kisers challenge
unreasonable
2 We shall modify the judge s recommended Order and notice to con
form with standard reinstatement language and to provide that the Re
spondent shall expunge from its files any reference to the unlawful refus
als to recall the Kisers
assigns shall take the action set forth in the Order
as modified
1 Substitute the following for paragraph 1(a)
(a) Refusing to recall its employees because
they engaged in activities on behalf of the Union or
because they engaged in protected concerted activ
ity
2 Insert the letters (c) (d) and (e) in paragraph
2 at the appropriate places and substitute the fol
lowing for paragraph 2(a)
(a) Offer William C Kiser and Warden H
Kiser immediate and full reinstatement to their
former jobs or if those jobs no longer exist to sub
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set
forth in the remedy section of the decision
(b) Remove from its files any reference to the
unlawful refusals to recall and notify the employees
in wasting that this has been done and that the re
fusals to recall will not be used against them in any
way
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT fail and refuse to recall our em
ployees because of their union activity or because
of their protected concerted activity
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer William C Kiser and Warden H
Kiser immediate and full reinstatement to their
former jobs or if those jobs no longer exist to sub
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge less any net interim earnings
plus interest
WE WILL notify each of them that we have re
moved from our files any reference to the refusal
291 NLRB No 38
BLOUNT BROS CORP 243
to recall and that that action will not be used
against them in any way
BLOUNT BROTHERS CORPORATION
Engrid Emerson Vaughan Esq for the General Counsel
Jay D St Clair Esq (Bradley Arant Rose & White) of
Birmingham Alabama and Belinda S Morton Esq of
Fayetteville West Virginia for the Respondent
owned and operated by the E I duPont de Nemours &
Company (dupont) at Belle West Virginia During the
12 months immediately prior to the issuance of the com
plaint the Respondent in the course of its business oper
ations performed services valued in excess of $50 000 di
rectly for customers located outside the State of Ala
bama The complaint alleged the answer admitted and I
find that the Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
DECISION
STATEMENT OF THE CASE
GEORGE F MCINERNY Administrative Law Judge
Based on a charge filed on October 27 1986 by William
C Kiser (the Charging Party) or Connie Kiser the Re
gional Director for Region 9 of the National Labor Rela
tions Board (the Board) issued a complaint on August 7
1987 1 alleging that Blount Brothers Corporation (the
Company or Respondent) had violated and was continu
rng to violate provisions of the National Labor Relations
Act (the Act) by failing to recall employees William C
Kiser and Warden H Kiser to their previous positions at
its Belle West S irginia jobsite
The Respondent filed an answer to this complaint in
which it denied the commission of any unfair labor prac
tices and entered several affirmative defenses which will
be considered here
Pursuant to notice contained in the complaint and as
rescheduled by order of the Regional Director and by
agreement of the parties a hearing was held before me at
Charleston West Virgina on February 3 1988 at which
the Respondent was represented by counsel and all par
ties had the opportunity to present testimony and docu
mentary evidence to examine and cross examine wit
nesses to present both oral and written motions and to
argue orally
After the hearing ended Respondent and the General
Counsel filed briefs which have been carefully consid
ered
Based on the entire record including my observation
of the witnesses and their demeanor I make the follow
Ing
FINDINGS OF FACT
I JURISDICTION
The Respondent Blount Brothers Corporation is a
maintenance contractor with its headquarters in Mont
gomery Alabama For some years and at all times mate
nal it has held a maintenance contract at the plant
1 There was some discussion in this case about the fact that a grievance
was filed and processed through several steps of the grievance procedure
The General Counsel admits that the charge was initially deferred be
cause of the pendency of the grievance However there is no evidence
that the matter proceeded beyond a letter dated November 14 1986
from the general vice president of the Iron Workers to the administrator
of the GPA agreement
Because no further action on the grievance was presented to this hear
mg I decline to defer to some unknown process The time limits in the
applicable collective bargaining agreement had expired before this hear
mg opened
II THE LABOR ORGANIZATION INVOLVED
The complaint alleged the answer admitted and I find
that Local Union 301 International Association of
Bridge Structural and Ornamental Ironworkers AFL-
CIO (the Union) is a labor organization within the mean
rng of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background K
As mentioned above the Company Blount Brothers
Corporation has for some years had a contract to per
form maintenance work at the duPont plant in Belle
West Virginia a few miles upstream on the Kanawha
River from the West Virginia State capital at Charleston
To perform its functions under this contract with duPont
the Company employs as its needs require members of a
number of different trades including ironworkers car
penters sheet metal workers and laborers These ma
chanics and tradesmen are represented by their own
local and international unions but since 1985 all the
trades have worked under a master agreement known as
the general presidents project maintenance agreement
(GPA agreement) This contract apparently was worked
out at the highest levels of the respective unions together
with representatives of maintenance contractors It was
clear from the testimony in this case that some if not all
of the more tradition oriented local mechanics as well as
union officials were unhappy with some of the innova
tive provisions of the GPA agreement not to mention
reductions in wages provided for in the contract Al
though the existence of the GPA agreement and the re
sentment over its provisions furnishes some background
for the facts in this case the agreement does not really
affect the operative facts in the case
B The Layoff of the Kiser Brothers
William C Connie Kiser is an ironworker and has
been a member of Local 301 since 1962 He had been a
member of the Union s executive board for about 7 years
at the time of this hearing He had worked for Blount
Brothers on a casual basis in 1974 and 1975 but from
1976 on he considered himself a permanent employee
of the Company at the duPont plant He worked there
full time except for a brief strike and for a 6 month
period of layoff in 1985 In 1986 he had been laid off for
a few days but had been recalled by the Company
Connie Kiser was a working foreman but from time to
time if the Iron Workers work force was increased he
had acted as a general foreman with three or more fore
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
man under him 2 But at the times material here Connie
Kiser worked with only one other ironworker his broth
er Warden H Hoss Kiser who also functioned as the
union steward on the job Hoss Kiser had been a perma
nent employee since 1974 when the job started The
Kiser brothers were considered good workers and had
received no discipline or warnings over the years
In the summer of 1986 the Company was instructed to
replace the roof on the plant powerhouse There is some
conflict between Connie Kiser and the Company s super
intendent Morris Smokey Taylor as to what prelimi
nary arrangements were made between the two men on
which Union was going to have jurisdiction over this
work the Iron Workers or the Sheet Metal Workers
There is no dispute however that members of the Iron
Workers were to perform at least the first section of a
four stage operation 3
On August 22 Taylor came into the ironworkers
shop where both Kiser brothers were working Taylor
informed the Kisers that they would be laid off that day
and he would recall them in a week or two Connie
asked about the work on the powerhouse roof and
Taylor replied that he was giving that work to the Sheet
Metal Workers Both Kisers objected to this Hoss laid
down his tools and said that he was going to call the
Iron Workers Union to inform the business agent that
the last two ironworkers on the job were being laid off
and that Taylor had changed the work assignment for
the powerhouse roof After Hoss left Taylor and Connie
continued talking Taylor was under the impression as
reflected in Connie s testimony (and in his own when he
was on the stand) that he and the Kisers had an agree
ment on the assignment of the powerhouse work first to
the Iron Workers then to the Sheet Metal Workers
Connie denied that a deal had been made and continued
to insist that the work belonged to the Iron Workers
Taylor was angry and told Connie that the Iron Workers
would get no more of that work and that Connie had
broken a bargain with him 4
The Company maintained in its answer that Connie Kiser was a su
pervisor within the meaning of Sec 2(11) of the Act The only evidence
about this was Kiser s testimony that he told other ironworkers where to
go and what jobs to do when given general instructions from the Com
pany s superintendent There is no evidence that these directions were
given in anyway other than as a conduit between management and work
ers Connie Kiser so far as can be ascertained for the record here had
none of the indicia of a supervisor as provided in the Act and merely
performed as directed by higher management I find that he was not a
supervisor within the meaning of the Act Iron Workers Local 28 219
NLRB 957 (1975)
s The daily timesheets submitted by Connie Kiser from July 28 to
August 27 show a total of 24 hours on July 28 22 hours on July 29 12
hours on August 1 16 hours on August 4 and 16 hours on August 5 for
a total of 90 hours worked by Iron Workers on the powerhouse roof
Without further information I cannot determine whether this represented
three quarters of the total job as stated by Connie Kiser or one quarter
as claimed by Smokey Taylor A resolution of this question is not neces
sary to the resolution of the issue in this case namely whether the Com
pany unlawfully refused to recall the Kisers to work
4It is unclear from the evidence what the bargain was So far as I
can determine from Taylor s testimony he apparently understood that
the Iron Workers would not complain if part of the powerhouse job was
assigned to another trade The Kiser brothers were under the impression
that if they were assigned 8 hours work on a job that constituted an
assignment of the entire job The only agreement that Taylor could
recall was an agreement between him and the Sheet Metal Workers
Taylor stormed out of the shop and the Kisers fin
ished their work for that day On October 29 the Kisers
were called back to work by the Union and worked
through November 6 when they were again laid off
They were not called back at any other time after
August 22
C The Failure to Recall the Kisers
The practice at the Belle plant during the times mate
nal was that when the Company needed Iron Workers
the superintendent would notify the foreman how many
hours were required for a job Then either the foreman
or the steward would call Iron Workers into work
When the Kisers filled the positions of foreman and
steward respectively they selected the people to call
sometimes consulting the Union s office to locate those
they wanted Ordinarily employees were called individ
ually by name to report to work
After the Kisers were laid off Taylor testified that he
was upset with Connie and that he did not feel he could
work with Connie again as a foreman 5 The relationship
between me and Connie at that time was deteriorating I
can t have that relationship between the superintendent
and the foreman and I decided it was time to make a
change
Accordingly when he was informed on Monday
August 25 that same ironwork had to be done Taylor
called another Iron Workers foreman Chuck Simmons
asked him pick up another ironworker and come in to
do the necessary work
On Tuesday August 26 there was a meeting between
Taylor and Iron Workers Local Business Agent Don
Harrison and Iron Workers International Representa
tives Lawrence Cricket Burgess and Hoss Kiser
Taylor explained what he had done about the assignment
of the powerhouse work 6 Burgess agreed that Taylor
was within his rights under the GPA agreement and the
green book in making the assignment as he had 7
A week or two after this meeting Taylor contacted
Delmar Blankenship a former foreman for Blount Broth
ers at duPont and offered him the ironworker foreman
job He accepted and remained as foreman until at least
the time of this hearing Both Taylor and Blankenship
denied that the latter was ever told or instructed not to
call the Kisers for work at the duPont plant However
Union relative to the powerhouse work Taylor was sure that the Kisers
were aware of this agreement on August 22 although he never stated
that he had talked to them about it at any time Taylor was sure that
everyone knew the agreement I made with Ray Todd the Sheet Metal
Workers business agent The Sheet Metal Workers business agent at
the time Wilson R Todd testified that he had heard at a Business
Agents meeting that the Company had assigned the powerhouse roofing
work to the Iron Workers He went to see Taylor who admitted that this
was so but said that future work on this job would be given to the Sheet
Metal Workers
s He also testified that he laid off the Iron Workers foreman as a con
solidation and an economy measure just as he laid off the operating engi
neer the teamsters foreman and changed the boilermaker millwright
and sheet metal foreman
8 Taylor also referred both at this meeting and at the hearing to a
Green Book decision dating back to 1947 awarding this type of work
to the Sheet Metal Workers
7 Burgess according to Hoss Kiser s testimony said that Taylor could
do anything he wanted to under the GPA agreement
BLOUNT BROS CORP 245
the testimony of Business Agent Don Harrison shows
that except for one or two occasions after August 22
the Company either directly through Taylor or through
Blankenship called individuals directly or asked the
Union for referrals by name The Kisers were never
named and were only called two times
The first exception occurred when someone from the
Company called Harrison and said that Taylor wanted
two ironworkers out of a list of four specified names
Harrison had never chosen people in that way and he
refused to make the choice The Company then subcon
tracted that ironwork to an outside employer The other
exception was at the end of October when Blankenship
or his son in law Jackie Hughes called Harrison and did
not specify the names of employees wanted At that
time Harrison sent the Kisers but they were never re
quested again nor were there any further requests that
did not name ironworkers other than the Kisers
With regard to this failure to call the Kisers back
Taylor stated that he made no secret of the fact that he
did not want Connie Kiser back as the foreman He went
on to admit that he made no attempt to call either of the
Kiser brothers back despite the fact that Hoss was not
and never had been a foreman
Taylor s determination not to rehire the Kiser brothers
was remarked on by Larry Wayne Cook an electrical
worker who worked for another contractor at the
duPont plant Cook testified that he heard Taylor state
to David Hughes a Millwright foreman that as long as
Taylor was on the job the Kisers would not be back
here Paul Roger white a pipefitter employed by
Blount Brothers at the duPont plant testified that Taylor
expressed to him his displeasure that the Kisers went
to the International Council Gene Payne a carpenter for
Blount Brothers at the Belle plant stated that Taylor
said to him that they (meaning the Kisers) would not be
back on the job as long as he was there Payne also testa
feed about Taylor s concern with the carpenters for
building scaffolds for other trades on the job a concern
which turned to anger after Payne talked about the
matter to one of duPont s engineers Taylor threatened
that if Payne ever again went over Taylors head to
duPont he would be fired
Finally Delmar Blankenship called as a witness by
Respondent testified that Taylor mentioned his problems
with the Kisers when Blankenship was hired as foreman
He told Blankenship of the incident that he had laid
them off and he told me that he wasn t going to call
them back and that if I wanted the job I could go up
there presumably to the Belle plant
On the basis of all this there is no question in my
mind that Taylor resented being questioned about his de
cision to award the powerhouse work to the Sheet Metal
Workers If he had any agreement with anyone about
this work it was with Wilson Tood the Sheet Metal
Workers business agent Neither Taylor nor anyone else
testified that the Kisers were informed about this agree
ment Indeed according to Todd s credible and undenied
testimony the agreement was not made until sometime
after the work to be performed was begun by the Iron
Workers thus contradicting Taylor s assertion that the
agreement had been worked out before the work began
Payne s testimony about Taylor s anger when Payne
went over Taylors head to speak to the duPont engi
neer is consistent with Taylor s admitted anger at
Connie Kiser for standing up for the Union on August
22 The further testimony of Cook and White shows that
Taylor s anger and resentment extended to both Kisers
making it clear that his concern was not the superintend
ent foreman problem 8 but was the fact that they ques
tioned his decision and complained about that decision to
the Union
Finally Taylor s own testimony does not seriously
contradict the thesis that he resented the Kisers for com
plaining to the Union about his decision and that he de
termined not to call them back 8 The testimony of Blan
kenship is clear and credible He was told in no uncer
tarn terms that if he wanted to be the Iron Workers
foreman at the duPont plant10 he Blankenship could
honor and respect Taylor s problems with the Kisers
and his determination not to call them back
Therefore I find that the Respondent acting through
its agent Morris Taylor failed and refused to recall its
employees William C Connie Kiser and Warden H
Hoss Kiser to their previous jobs at the duPont plant
at Belle West Virginia because they supported or assist
ed the Union in violation of Section 8(a)(1) and (3) of
the Act Interboro Contractors 157 NLRB 1295 (1966) 11
IV THE REMEDY
Having found that the Respondent has violated Sec
tion 8(a)(1) and (3) of the Act I shall recommend that it
cease and desist therefrom and that it take certain of
firmative action designed to effectuate the policies of the
Act
Specifically I shall recommend that the Respondent
offer to William C Kiser and Warden H Kiser immedi
ate reinstatement to their former positions or if those po
sitions are no longer available to substantially equivalent
positions with no loss of seniority or other benefits and
make them whole for the discrimination suffered by
them by the payment to them of backpay together with
interest thereon to be computed in the manner prescribed
in F W Woolworth Co 90 NLRB 289 (1950) and New
Horizons for the Retarded 283 NLRB 1173 (1987) 12
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
8 Which as I noted on the record at hearing does create management
problems
8 The Respondent s theory as set out in its brief would seem to say
that employees are not free to complain about management decisions and
that the filing of a grievance which is denied is not protected concerted
activity I do not find any authority for this theory
10 The testimony of the Kisers shows that this position was a full time
job free from the concerns of the availability of work and the prospect
of frequent layoff
1 Any concerted activity that the Kisers may have participated in
here is inseparable in my opinion from their union activity Therefore I
do not find an independent violation of Sec 8(a)(1)
2 See generally Isis Plumbing Co 138 NLRB 716 (1962)
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By failing and refusing to recall employees William
Kiser and Warden Kiser the Respondent has violated
Section 8 (a)(1) and (3 ) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed13
ORDER
The Respondent Blount Brothers Corporation Belle
West Virginia its officers agents successors and as
signs shall
1 Cease and desist from
(a) Refusing to recall its employees because they en
gaged in activities on behalf of the Union
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer William C Kiser and Warden H Kiser im
mediate and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equivalent po
sitions without prejudice to their seniority or any other
13 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
rights or privileges previously enjoyed and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision
(b) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(c) Post at its facility in Belle West Virginia copies of
the attached notice marked Appendix 14 Copies of the
notice on forms provided by the Regional Director for
Region 17 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately on receipt and maintained for 60 consec
utive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
14 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board