Brown & Root, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1979

246 N.L.R.B. 33 (N.L.R.B. 1979)

BROWN & ROOT. IN(.
Brown & Root, Inc. and Wayne Landry. Case 15 CA
7185
October 11, 1979
DECISION AND ORDER An A
W
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.I cau
proti
W
On July 16, 1979, Administrative Law Judge Rob- inter
ert C. Batson issued the attached Decision in this pro- in
ceeding. Thereafter, Respondent filed exceptions and Sen t
a supporting brief, and the General Counsel filed an W
answering brief. mon
Pursuant to the provisions of Section 3(b) of the mrm
National Labor Relations Act, as amended, the Na- fsub
tional Labor Relations Board has delegated its au- sice
thority in this proceeding to a three-member panel. dice
The Board has considered the record and the at- lege
tached Decision in light of the exceptions and briefs fr
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Brown & Root. Inc.,
Hahnville, Louisiana, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Respondent contends that because unlawfully discharged employees
Wayne Landry and Karl Ockmond engaged in a protected concerted work
stoppage when they refused to return to work in the rain because of condi-
tions they considered unsafe, they are strikers and therefore entitled to rein-
statement only upon their unconditional request for reinstatement. We find,
however, that the Administrative Law Judge appropnately recommended
that Respondent offer Landry and Ockmond immediate and full reinstate-
ment. We so find in part because the work stoppage herein does not amount
to a strike in that it was of brief duration. and there is no evidence that it in
any way interfered with production or was designed to pressure Respondent
to grant any concessions or to protest its policies. Cf. Shelly Anderson
Furniture Manufacturing Co., Inc. v. N.L.R.B.. 497 F.2d 1200, 1203 (9th Cir.
1974), Anheuser-Busch, Inc., 239 NLRB 207, 208 (1978), Dawson Cabinet
Company, Inc., 228 NLRB 290, 292 (1977). Further, but for their unlawful
discharge, Landry and Ockmond would presumably have returned to work
once the conditions they perceived as unsafe had dissipated: i.e.. it stopped
raining. Cf. Evergreen Helicopters, Inc.. 223 NLRB 317. 319 320. (1976).
Member Jenkins finds the above discussion unnecessary.
33
APPENDIX
NOricE To EMPI.OYEFS
POSTED BY ORDER OF ITHE
4ATIONAI. LABOR RELATIONS BOARD
agency of the United States Government
I/ WlI.. NOI discharge our employees be-
e they have engaged in concerted activities
ected by the National Labor Relations Act.
i1 WILl. NOT in any like or related manner
rfere with, restrain. or coerce our employees
he exercise of the rights guaranteed them by
ion 7 of the Act.
l: WI I,_ offer Wayne Landry and Karl Ock-
d immediate and full reinstatement to their
ler jobs or, if those jobs no longer exist, to
tantially equivalent positions, without preju-
to their seniority or other rights and privi-
spreviously enjoyed, and make them whole
any loss of pay they may have suffered by
on of their termination, plus interest.
BROWN & RooT, INC.
DECISION
SIATFMF1NT OF TIlE CASE
ROBFRI C. BAISON, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended. 29 U.S.C. §151 et seq. (herein the Act), was heard
before me on May 16, 1979,1 in New Orleans, Louisiana,
based upon a complaint and notice of hearing issued by the
acting Regional Director for Region 15 (New Orleans, Lou-
isiana). on February 15. growing out of a charge filed on
January 29, by Wayne Landry. alleging that Brown &
Root, Inc., herein Respondent, had violated Section 8(a)(1)
of the Act by discharging Landry and fellow employee Karl
Ockmond, because cf their participation in protected con-
certed activities for their mutual aid and protection.
Respondent's amended answer to the complaint. as fur-
ther amended at the hearing, admits all allegations of the
complaint except that it discharged Landry and Ockmond
for engaging in protected concerted activities. Respondent
contends that they were terminated for insubordination and
refusal to follow instructions. As an affirmative defense Re-
spondent contends that the complaint should be dismissed
since it is based upon an assertion of rights protected under
the Occupational Safety and Health Act of 1970 sec. 2, et
seq. I (c 1), 29 U.S.C.A. §651, e seq.. §660 (cX)(), pursu-
ant to a memorandum of understanding between the Solici-
tor of the Department of Labor and the General Counsel of
the Board dated June 20. 1975.3
I All relevant events in this case occurred dunng the calendar year 1979
and unless otherwise indicated all months and dates referred to hereafter are
1979.
2 Hereinafter called OSHA.
' At the hearing I rejected Resp. proffered Exh. 3 which is a copy of the
memorandum of understanding and the exhibit was placed in the rejected
exhibit file. I hereby reverse that ruling and receive into evidence Resp. Exh
3.
246 NLRB No. 9
DECISIONS OF NATIONAL I.ABOR REI.ATIONS BOARD
For the reasons set forth below, I find: (I) Respondent's
affirmative defense that the complaint must be dismissed
because the General Counsel failed to defer the charge to
OSHA pursuant to the Memorandum of Understanding of
June 20. 1975. is without merit and that the General Coun-
sel was acting within the authority granted him by Section
3(d) of the Act in the issuance of the complaint herein: and.
(2) the General Counsel has sustained his burden of proof
that Landry and Ockmond were discharged for refusing to
work in the rain and that such constituted protected con-
certed activity within the meaning of Section 8(a)( I) and
their discharge therefore violates the Act.
All issues were fully litigated at the hearing; all parties
participated throughout by counsel and were afforded full
opportunity to present evidence and arguments and to file
briefs. Briefs have been received from counsel for the Gen-
eral Counsel and Respondent.
Upon the entire record, including careful consideration
of briefs, and my observation of the testimonial demeanor
of the witnesses testifying under oath, and upon substantial
reliable evidence, I make the following:
FINI)INGS OF FA(I
I. IHE BUSINESS OF RESPONDIEN
Brown & Root, Inc., is, and has been at all times material
herein, a Texas corporation with an office and place of hbusi-
ness located at Hahnville, Louisiana, where it is engaged in
the industrial construction contracting business. At all
times material herein, Respondent was a contractor at
Union Carbide Corporation, Chemical and Plastics Opera-
tion Division at Taft, Louisiana. During the 12 months im-
mediately preceding the issuance of the complaint herein,
Respondent purchased and received goods and materials
valued in excess of $50,000 directly from points located out-
side the State of Louisiana.
Accordingly, as alleged in the complaint and admitted in
the answer, I find that Respondent is, and has been at all
times material herein, an employer as defined in Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of the
Act.
II. JURISDICTION OF IE GENERAl. (OUNSEl. 10 ISSUE IIIE
(COMPLAINT
Respondent contends, as a threshold defense, that the
Memorandum of Understanding between the Board's Gen-
eral Counsel and the Department of Labor executed in
June 1975 requires the General Counsel to dismiss or defer
to OSHA the charge in this case. The language of the
Memorandum relied upon by Respondent provides in perti-
nent part:
B. PROCEDURAL AGREEMENT
1. Where a charge involving issues covered by Section
I I(c) of the OSHA Act has been filed with the General
Counsel and a complaint has been filed with OSHA as
to the same factual matters, the General Counsel will.
absent withdrawal of the matter, defer or dismiss the
charge. The General Counsel will inform the Charging
Party of its action and will send a copy of such letter to
OSIIA.
This contention is predicated on the following facts. On
January 29, Landry filed the instant charge with the
Board's regional office on behalf of himself and Ockmond
alleging that they were discharged for engaging in protected
concerted activities. The bsis for the allegation was that
they refused to work in the rain because they feared the
rain constituted a safety hazard to them since they were
working with electrical tools, and further as to Ockmond,
the fact that the metal angles which supported him over the
Mississippi River became wet and slippery. On the same
date Landry filed a complaint with the New Orleans office
of OSHA alleging several hazardous working conditions at
the jobsite and asserting that he was terminated for refusing
to work in these hazardous conditions. On January 30, Ock-
mond also filed a complaint with OSHA wherein he as-
serted several hazardous working conditions existing on the
job.
Respondent contends that under the language of the
memorandum of understanding quoted above, the General
Counsel should have dismissed the charge or deferred ac-
tion on the charge pending disposition of the matter by
OSHA and contends that the failure to defer or dismiss
pursuant to this agreement requires dismissal of the com-
plaint because it places Respondent in the position of suf-
fering "double jeopardy" since it may be forced to expen-
sive and time consuming federal court litigation over the
same facts before the Board.
In the first instance, in my view the memorandum of
understanding between these two federal agencies does not
rise to the level of agency rules and regulations the breach
of which might warrant the dismissal of the complaint. The
clear intent of the memorandum of understanding as set
forth in Respondent's Exhibit 3, which I have herein re-
ceived into evidence, is to avoid duplicate litigation before
OSHA and the Board on issues involving discrimination
against employees for resorting OSHA for relief of what
they believe to he safety hazards. As noted in the memoran-
dum:
It appears that many employees' safety activities may
be protected under both Acts. However, since an em-
ployee's right to engage in safety and health activities
is specifically protected by the OSH Act and is only
generally included in the broader right to engage in
concerted activities under the NLRA, it is appropriate
that enforcement actions to protect such safety and
health activities should primarily be taken under the
OSH Act rather than the NLRA!!
On January 17, 1979. the General Counsel of the Board
notified all regional directors, officers-in-charge, and resi-
dent officers of the interpretation which had been adopted
of the 1975 memorandum. This memorandum states in rel-
evant part:
. . To clarify any ambiguity that may exist, please
note that the memorandum of understanding was de-
signed solely to deal with questions arising under Sec-
tion I (c) involving discrimination in retaliation for
34
BROWN & RO()T. IN(C.
such conduct as an employee's filing OSHA com-
plaints or testifying in OSHA proceedings. Accord-
ingly, the memorandum of understanding is to he fol-
lowed only in such cases.
It is well settled that the Board has discretion to interpret
its own rules and its discretion is not to be controlled at the
whim of a private party to the neglect of the public interest.
N.L.R.B. v. Giustina Bros. Lumber Co.. 253 F.2d 371 (9th
Cir. 1958). Thus. it is clear that the intent of the memoran-
dum was not that the General Counsel should defer all
charges involving alleged discrimination for activities in-
volving safety conditions but to defer only those charges
involving discrimination in retaliation for an employee's fil-
ing OSHA complaints or testifying in OSHAA proceedings.
There is no suggestion that such activity was the motivating
factor in the discharge of these emplo ees since they did not
resort to the OS1IA processes until ater their discharge.
111. it LNt INAIR .ABtOR PRA( II( IS
As pertinent here. Respondent commenced work pursu-
ant to a contract with Union Carbide Corporation. Chemi-
cal and Plastics Operation Division, in Taft. I.ouisiana.
about mid-November to construct an Ethylene Amine
Unit4 and the construction of utility and product lines from
Union Carbide's plant to the barge dock located approxi-
mately 100 yards off shore into the Mississippi River. The
product lines are apparently large pipes for use as a conduit
for chemicals from Union Carbide's plant to the port barge
dock where they are loaded onto the barges. The utility
lines, as the name indicates, supply the energy for the op-
eration of the product lines and the barge dock. The events
herein are centered around the latter operation.'
Landry and Ockmond commenced working for Respon-
dent in late November as journeymen pipefitters. Landry
had some 10 years experience in this field and Ockmond 4
years. All of the relevant events giving rise to the issues
litigated here occurred on the morning of January 23 and
involves the response of not only Landry and Ockmond,
but also all other employees on the pipefitting crew to
weather conditions. There is not a great deal of dispute
about the general weather conditions on the morning of
January 23, it appearing from the testimony that the tem-
perature was in the mid 40's and there was a fine mist of
rain, or a mist blowing in from the river, as described by
Safety Supervisor Weber, throughout the morning. On this
date Landry was assigned to prefabricating pipe which in-
volved cutting and threading the pipe with an electric ma-
chine. This work was done on shore and the threading ma-
chine obtained its electrical current from a welding
machine located some 40 yards behind the threader. Elec-
tricity was brought to the threader by electrical extension
cords. The machine where Landry was working was ex-
posed to the weather and the extension cord ran along the
ground.
' An Ethylene Amine Unit is not described in the record, However. it does
not appear to be particularly material to the issues here.
It appears that between 150 and 200 employees were employed on these
two projects. However, in the pipefitting crew, which is relevant here. there
were 17 to 20 individuals employed.
On this date Ockmond. along with a helper. was assigned
to install a 6-inch fire water line from the shore to the var-
ious docks located approximately 100 ,ards into the M\issis-
sippi River which work required that they work under a cat
walk, which was described by Ockmond as being approxi-
matel 2-feet wide with a hand railing. In the course of this
work Ockmond wore a safety belt and a life vest with the
safety belt being attached to half inch angle irons. In the
course of installing the fire water line Ockmond used an
electric mule. described as a portable hand driller weighing
about 40 pounds and being about 2-feet long. It obtained its
electricity from a welding machine located about 2(00 feet
awa', and brought to the mule by extension cords. Ock-
mond. the extension cords. and the mule were all exposed
to the weather.
At some point during the morning Ockmond who was
working under the catwalk over the River. as well as several
other employees. complained to Pipefitting Foreman Dar-
rl Baile, about the hazards of working in the existing
weather conditions.' As a result. sometime between 9 and
9:45 a.m.. Bailey called Joe C. "D)oc" Weber. Respondent's
safnet supervisor. on the radio and asked him to come to
the barge area and ascertain whether it was safe to continue
working.' Pursuant to Baile!'s request. Weber came to the
barge site and inspected it. presumably assuring that all the
electrical equipment was properly grounded and deter-
mined that. under the weather conditions then existing.
which according to Weber were a light mist and cool tem-
peratures. it was safe to continue working. Weber further
testified that it was not raining at that time and had it been
raining his determination on the safety of continuing work
would have been different, and he would have stopped the
work immediately.
Between 10:45 and 10:55 a.m. the light drizzle or mist
turned into a somewhat heavier rain.8 When the rain com-
menced Landry and his helper unplugged the threading
machine from the extension cord and ran to the "fittings
shack," a portable building approximately 10 x 10 located
some 200 ards from their worksite. At about the same time
Ockmond and his helper also abandoned their job and ran
to the fittings shack, stopping momentarily by Union Car-
bide's control room. There were only Brown & Root em-
ployees in the control room. However, according to Ock-
mond. he and his helper were not supposed to he there and
they went on to the fittings shack. It is undisputed that all,
or substantially all, of the pipefitting crew consisting of 17
to 20 individuals ceased work during the rain and sought
shelter at the fittings shack.
Five to 10 minutes after the arrival of Landrv and Ock-
mond at the fittings shack. Pipefitting Foreman Bailey en-
tered the shack and told the employees to return to work.
Landry told Bailey that he was not going back to work in
6 While Bailey did not recall Ockmond specifically complaining about the
weather, he did recall thai several employees complained and that he had
some question concerning whether or not it was safe to continue working in
the weather conditions existing at that time.
' This finding is based on the testimony of Weber. who testified that he
visited the site between 9 and 9:45 a.m. that day Bailey testified that it was
between 9:30 and 10:30 when he called Weber This is somewhat in conflict
with the testimony of General Foreman Je O'Quinn who testified that he
received a report rom Weber around 10:45 am that day
I L.andry places the heavier rain at precisels 1O 55 while Baile's testimony
indicates that it occurred some hat earlier.
35s
DECISIONS OF NATIONA. LABOR RELATIONS BOARD
the rain. Bailey told Landry "go get your stuff and hit the
gate." Bailey then asked if there were anyone else who was
not going to work in the rain and, according to Landry and
Ockmond, Ockmond told Bailey that he was not going to
work in the rain, at which time Bailey told him to get his
stuff, that he was fired also.9 At this time it was still raining,
although it is unclear as to how hard. After leaving the
fittings shack with Bailey, Landry told Bailey that he had
been sick the previous Friday and had to miss work and
that he did not want to have to work in the rain. Bailey
made no reply. .andry then asked Bailey if they could talk
with someone else and Bailey went to his vehicle and by
radio called General Foreman O'Quinn and told him that
he needed to see him on the barge dock because he had a
problem there. L.andry testified that the purpose of request-
ing to talk with someone else was to explain that he felt that
the use of electrical tools in the rain was unsafe to himself
and the rest of the crew. It is unclear whether he expressed
this concern to Bailey at that time.'l
I find that it was still raining. at least somewhat harder
than the "mist or light drizzle" in which the crew had been
working throughout the morning. Had the weather condi-
tions returned to that state Landry and Ockmond would
not have refused to return to work. They had worked in the
light mist and drizzle all morning. Also, according to Bai-
ley, when Landry told him that he was not going to work
because he had a cold, he told Landry that he had to go
back to work "or else I would terminate him." Bailey also
denies that he asked the other employees if anyone else did
not want to work in the rain and that Ockmond said noth-
ing.
Bailey, Ockmond. and Landry then walked up on the
levee to await the arrival of O'Quinn. At about the time
O'Quinn arrived, the lunch "whistle" blew and Landry and
Ockmond sat down on the levee and began to eat their
lunch. They were apparently joined there by other members
of the crew. When O'Quinn arrived Bailey called Landry
apparently to talk with O'Quinn at which time, according
to Bailey, Landry said, "Screw it. Its time for dinner.""
As indicated it is unclear exactly what transpired on the
levee, but in any event Landry and Ockmond accompanied
O'Quinn and Bailey to obtain their tool boxes and then to
the time shack where they were given termination notices.
Landry's termination notice, signed by Bailey states,
"Would not work when raining. Also insubordinate with
supervisor." It appears that initially Bailey had written on
Ockmond's termination notice, "quit" at which time Ock-
9 There was much grumbling by other employees who left the shack but
did not return directly to work. It is unclear whether the other employees did
not return to work because it was still raining or whether they did not return
to work because it was nearing the 11:15 a.m. lunch hour.
10 The foregoing is based on the testimony of Landry and Ockmond whom
I credit. Bailey testified that at the time he instructed the crew to return to
work it had "almost stopped raining" and in his opinion it was not raining
hard enough to prevent the crew from working. Bailey admits that there was
some grumbling among the crew when he instructed them to return to work
but that all of them except Landry and Ockmond left the shack in response
to his orders.
" According to Landry and Ockmond, Bailey called Landry to O'Quinn's
vehicle by saying, to "get your f- ass up here," at which time Landry told
Bailey not to curse him again and O'Quinn told them, "You all get your tool
boxes, you all are fired." O'Quinn testified that Landry's response to Bailey
was "F it: it's time for dinner," at which Landry approached him cursing
and yelling.
mond told him that he was not quitting but that he had
refused to work in the rain and Bailey amended the termi-
nation notice to read. "would not work in rain."
Delbert White, safety supervisor for Union Carbide's
construction division testified that during the third or
fourth week in January, he was summoned to the barge
dock in the early morning where he encountered several
Brown & Root employees who complained to him about
having to work the previous day in the rain. White there-
after communicated these complaints to Weber who ad-
vised him that he had given instructions not to work the
man on pipe racks or at the end of the dock when it was
raining. While White was unable to place this event as the
day following the discharges herein, it appears that is the
case. There is no evidence in the record that during the
month of January there had been previous complaints by
Brown & Root employees about working in the rain and
cold until the January 23 incident.
Analysis and Conclusions
Respondent contends that Landry was terminated for re-
fusing to obey a legitimate work order to return to work
and that his refusal was for purely personal reasons, his
health. Accordingly, it argues that he was not acting in
concert with any other employees in protesting any condi-
tion of employment which is protected by Section 7 of the
Act. Apparently, Respondent also argues that the alleged
profanity used by Landry toward Bailey and/or O'Quinn
on the levee "provided a second independent reason for his
termination." As to Ockmond. Respondent contends that
he "quit because he did not want to work at the job if his
friend and now brother-in-law would not be there."
The General Counsel contends that both Landry and
Ockmond were discharged for "participation in a work
stoppage, the focus of which was job safety."
It has long been well settled that employees are protected
by Section 8(a)(1) of the Act when they refuse to work
because they believe the conditions under which they are
working to be unsafe or even uncomfortable. N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9 (1962).
Thus, when the entire pipefitting crew ceased work and
sought shelter when it commenced to rain on January 25,
they were engaged in protected concerted activity, and it is
not particularly relevant that some may have stopped work
because they believed the rain to constitute a safety hazard
and others merely because they found the conditions un-
comfortable. The evidence is clear that throughout the
morning some employees had expressed concern about the
safety of working in a light mist, and even Pipefitting Fore-
man Bailey evidenced enough concern to have the safety
supervisor evaluate the conditions as existing about 9:30
a.m. While both the General Counsel and Respondent elic-
ited much testimony bearing upon the question of whether
by some objective standard the conditions were safe to
work. it is not necessary that I resolve that question. As the
Board stated in Union Boiler Company', 213 NLRB 818
(1974): "the issue here is not the objective measure of the
safety conditions, it is whether these employees left their
jobs because they thought conditions were unsafe." Cf.
N.L.R.B. v. Washington Aluminum Co., supra, 370 U.S. at
36
BROWN & ROOT. INC
16. Here Bailey was well aware that at least one of the
reasons the employees had stopped work and sought shelter
was their concern about the safety of working in the rain.
Even were Respondent's version of the facts accepted.
i.e.. that only Landry refused to return to work because of
the rain and his concern for his personal health, its conten-
tion that the protected concerted nature of the work stop-
page was lost, is unsound. It is clear that the weather condi-
tions were the motivating factor in the work stoppage and
assuming that all other employees had returned to work
thus tolerating the conditions. Landry would not have been
left without protection for continuing the protest. The
Board has held that even where employees have not ex-
pressed to management any complaints about safety, work
stoppages remain protected if it were found that "safety
was their reason for refusing to continue their job." Union
Boiler Company, supra, 213 NLRB at 818. Accordingly. the
fact that Landry may not have advised Bailey that his rea-
son for refusing to return to work in the rain was based
upon his belief that it was unsafe to work with electrical
tools under those conditions does not render his action un-
protected. Moreover, the Board with court approval has
long held that an individual employee is engaged in pro-
tected concerted activity when he acts in the interest of his
fellow employees on a matter of concern to them. Hugh H.
Wilson Corporation. 171 NLRB 1040 (1968): enfd. 414 F.2d
1345 (3d Cir. 1969) cert. denied 397 U.S. 935 (1970). See
also Alleluia Cushion Co., Inc., 221 NLRB 999 (1975): Daw-
son Cabinet Companv, Inc., 228 NLRB 290 (1977): Air Sur-
rey Corporation. 229 NLRB 1064 (1977); and Pink MloodV,
Inc., 237 NLRB 39 (1978) wherein the Board held that such
protection extended to refusal to perform normal work
tasks.
In the instant case I have found that Landry was not
alone in his refusal to return to work in the rain hut was
joined by Ockmond. In so finding I have rejected the Re-
spondent's contention that Ockmond was not discharged
but quit because his friend had been fired. It is noted that
Bailey stated the reason for his termination to be his refusal
to work in the rain which is the same reason given for Lan-
dry. Even were it found that Landry's sole reason for refus-
ing to return to work in the rain was his fear that it might
cause a recurrence of his illness of the preceding week, it is
clear that Ockmond joined with him in that refusal and the
activity became concerted and protected. Cf. Akron General
Medical Center. 232 NLRB 920 (1977); The C. J. Krehhiel
Company,, 227 NLRB 383 (1976).
The January 23 events contain all the elements of pro-
tected concerted activity on the part of all the employees in
the pipefitting crew and the continued protest of Landry
and Ockmond when the others apparently abandoned the
activity upon direction of Foreman Bailey remained pro-
tected. As they were discharged for engaging in such ac-
tivity, their discharges violate Section 8(a)( 1) of the Act. I
so find and conclude.
With respect to Respondent's contention that Landry
was also discharged for insubordination. I find that his dis-
charge had been effectuated prior to any alleged insubordi-
nation by the use of profanity toward his supervisor. The
only consideration of this matter is the question of whether
it would bear upon his fitness for reinstatement. The burden
of establishing that a discriminatee has committed acts
which make him unemployable is upon the party seeking to
block the reinstatement. Big "G" Corporation. 223 NLRB
1349 (1976). 1 agree with the General Counsel that the pro-
fanity attributed to Landry was nothing more than rough
remarks or street talk made b a man under stress of dis-
charge and there is no evidence that violence was intended
or occurred. Asplundh Tree Expert Companvy, 220 NLRB
352. fn. 2 (1975); J. P. Hamer Lumber ('otnpany. Division of
(;amble Brothers. Inc., 241 NLRB 613 (1979).
Accordingly. I find that the profanity used by Landry
after his discharge does not make him unfit for continued
employment and the usual remedial Order for reinstate-
ment will be issued.
CN( .LSIoNS otF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. By discharging Wayne Landry and Karl Ockmond on
January 23. because they engaged in protected concerted
activity for their mutual aid and protection and the mutual
aid and protection of other employees. Respondent has vio-
lated Section 8(a)(1) of the Act.
3. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Tiw- REMIDY
Having found that Respondent herein has committed
certain unfair labor practices, Respondent shall be ordered
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes of the Act. Not-
withstanding that the unfair labor practices found herein
are discriminatory discharges. I shall not recommend the
"so called" broad cease and desist order. i.e.. "from in any
manner" interfering with its employees' Section 7 rights. In
Hickimot Foods, Inc., 242 NLRB 1357 (1979) the Board
rescinded its long standing policy of issuing such orders in
all cases involving discriminatory discharges as enunciated
in N.L.R.B. . Entwistle Manu/iwtiuring Co.npan, 120 F.2d
532 (4th Cir. 1941) enfg. 23 NLRB 1058 (1940). and con-
cluded that "each case will be analyzed to determine the
nature and extent of the violations committed by a Respon-
dent so that the Board may tailor an appropriate order." In
the instant case the only unfair labor practices found are
the discharges of two employees for engaging in protected
concerted activities in violation of Section 8(a)(1) of the
Act. There is no evidence that this Respondent is a repeat
offender or an egregious violator of the Act. It should also
be noted that the violation found herein does not require a
finding that Respondent intended to interfere with its em-
ployees' Section 7 rights, but merely that the result of its
actions would. without regard to intent, tend to interfere
with such rights. Accordingly. in my view the broad cease
and desist order is not appropriate in this case.
The affirmative action Respondent shall be ordered to
take shall include the posting of' the usual informational
notice to employees and to offer Wayne Landry and Karl
Ockmond immediate and full reinstatement to their former
or substantially equivalent jobs. without prejudice to their
seniority or other rights and privileges, and to make each of
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them whole for any loss of earnings suffered by reason of
Respondent's unlawful conduct toward them in accord with
the Board's Decision and Order in Abilities and Goodwill,
Inc., 241 NLRB 27 (1979). Backpay shall be computed as
provided in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon to be computed in the manner
set forth in Florida Steel Corporation, 231 NLRB 651
(1977 )." See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
ORDER"
The Respondent, Brown & Root, Inc., Hahnville, Louisi-
ana, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging its employees for engaging in protected
concerted activities in protest of conditions of employment.
12 The counsel for the General Counsel requested that I recommend that
interest on the backpay be computed at the rate of 9 percent per annum
rather than as provided in Florida Steel, supra. On May 17, 1979, the Board
issued its Decision in Neely's Car Clinic., 242 NLRB 335 (1979), wherein it
rejected the Administrative aw Judge's recommendation that the backpay
interest should he computed at 9 percent per annum, and adhered to the
formula set forth in Florida Steel. While the Board did not articulate its
rationale for continuing to adhere to the Florida Steel formula, it is clear that
it has not chosen to opt for higher interest on backpay awards.
it In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Wayne Landry and Karl Ockmond immediate
and full reinstatement to their former, or substantially
equivalent jobs, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any
loss of earnings in the manner set forth in the section of this
Decision entitled "Remedy."
(b) Preserve and, upon 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 documents nec-
essary to analyze and compute the amount of backpay due
under this Order.
(c) Post at its Taft, Louisiana, facility copies of the at-
tached notice." Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
14 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States ('Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
38