Brown & Root, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1978

234 N.L.R.B. 718 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown & Root, Inc. and International Brotherhood of
Electrical Workers, Local 769, AFL-CIO. Case
28-CA-4242
February 6, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On September 22, 1977, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge, to modify her remedy,2 and to adopt her
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Brown & Root,
Inc., Bagdad, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
I 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 credibili-
ty 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 (C.A. 3. 1951). we have carefully
examined the record and find no basis for reversing her findings.
2 The Administrative Law Judge, in citing Florida Steel Corp., 231 NLRB
651 (1977), inadvertently specified interest to be paid at 7 percent; however,
there the Board stated that interest on backpay shall be computed at the
"adjusted prime rate" used by the U.S. Internal Revenue Service. See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Prescott, Arizona, on
July 12-14, 1977. The charge was filed by International
Brotherhood of Electrical Workers, Local 769, AFL-CIO,
herein called the Union, on March 3, 1977, and served on
Respondent on March 4, 1977. The first amended charge
was filed by the Union and served on Respondent on
March 29, 1977. The complaint, which issued on April 14,
234 NLRB No. 103
1977, alleges that Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended. The
basic issue herein is whether certain employees were
transferred and/or laid off because of their union activities.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Texas corporation with its principal office
and place of business in Houston, Texas, is a construction
contractor. At all times material herein, Respondent has
maintained a place of business in Bagdad, Arizona, where
it is engaged in the construction and renovation of copper
mine facilities owned and operated by the Cypress-Bagdad
Copper Company in and around Bagdad and Wikieup,
Arizona. During the year preceding the issuance of the
complaint herein, Respondent in the course and conduct of
said business operations, has purchased and caused to be
delivered to its place of business in Bagdad, Arizona,
construction materials and other goods and materials
valued in excess of $50,000 directly from States of the
United States other than the State of Arizona.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
Respondent currently employs a total of about 70,000
employees in the construction crafts on various construc-
tion projects throughout the world. It has no collective-
bargaining agreement covering its various construction
projects.
The Cypress-Bagdad Copper Company project is a
copper concentrating facility consisting of a primary
crushing facility and an overland conveyor for conveying
crushed ore from the crusher to the concentrating facility.
The Brown and Root contract, valued at approximately
$240 million, involves among other things a water supply
system comprised of 10 or 12 wells which feed through the
gathering system into a pumping station located near
Wikieup, Arizona, where electric powered booster pumps
push the water through a pipeline from the Wikieup pump
station to the Bagdad mill site. This involves the construc-
tion of a power distribution system. The peak number of
employees on the project was about 1,000, of whom 200
were electricians. At the time of the hearing herein the
project was over 98 percent complete, and there remained
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BROWN & ROOT, INC.
approximately 270 employees, including 70 or 75 electri-
cians.
William V. Davis is project manager, under him is
General Superintendent Jim Marthers. There is a craft
superintendent for each of the various crafts with a general
foreman' and various foremen working under the craft
superintendent. The craft involved here are electricians.
Carl Coats was the electrical superintendent until late April
or early May 1977,2 when he was replaced by John
Blaskovitch who was promoted from general foreman. The
portion of the project principally involved herein is the
power distribution line servicing the wells and the pumping
station, herein referred to as the Wikieup site.
In mid-January a linecrew was assigned to the Wikieup
site. By February 14, the crew was comprised of two
linemen; Roy Williams and Dennis Frost, and several
helpers; Willie Wilson, Jr., Doby Williams, Rex Babcock,
Gilbert Duran, and Douglas Gillespie.3 At that time they
were the only outside electricians, also called linemen, and
helpers on the site. 4 John Vance was their foreman and I
find him to be a supervisor within the meaning of Section
2(11) of the Act.5 Roy Williams is a member of the Union.
Frost and Vance are members of International Brother-
hood of Electrical Workers but not of Local 769.
On February 14, Frost, Roy Williams, Doby Williams,
Wilson, Gillespie, and Babcock met in Frost's motel room.
Roy Williams explained the benefits of organized labor
and they all signed authorization cards for the Union. 6 At
some point after the cards were signed, Vance walked into
the room. According to Roy Williams, Vance said, what
are we holding, a union meeting. Roy Williams said they
were. Vance picked up the authorization cards from the
table and looked at them. Roy Williams gave Vance an
authorization card and asked if he would like to sign it.
Vance said he would think about it and left.
Frost, Babcock, and Vance testified in essential agree-
ment with Williams as to this incident except that Frost
and Doby Williams testified that Roy Williams and Vance
discussed the pros and cons of the Union. Frost testified
that Vance took the negative side and that Williams said
that they were seeking a linemen crew unit not all the
electricians and that they were the only linecrew. Frost
believes that Vance had mentioned that there were about
100 electricians working on the project. Vance admits that
he remained 10 or 15 minutes and he does not specifically
deny any of this testimony.7
Vance testified that immediately after he left the room,
Frost came to Vance's room and said he may have made a
I It is unclear as to whether there is one or more than one general
foreman in the electrical department.
2 Unless otherwise indicated, all dates herein are in 1977.
3 Some of them had been transferred from the Bagdad site where they
had worked for a month or more. Others, like Roy and Doby Williams, had
been at Bagdad only 2 or 3 days.
4 An outside electrician or lineman is one who builds outdoors power
lines, high voltage and low voltage substations, and does work pertaining to
the transmission of electrical energy from a power source to the meter at the
ultimate destination. A groundsman, also called a helper, assists the lineman
with anything that is done on the ground. An inside electrician, often
referred to simply as an electncian, is one who works within the final
destination, starting at the meter. establishing electrical outlets and other
internally installed apparatus.
5 Davis testified that as a foreman, Vance has the responsibility of
directing the work of a crew of electricians. tie has no authority to hire
mistake. Vance replied, "Jack, I don't know, I think you
did. I'll guarantee you one thing, the office over there will
not hear this from someone else." Frost was not questioned
as to this conversation.
Vance further testified that, on February 15, he went to
Bagdad, showed Coats the authorization card that he was
given and told him that everyone on his crew except Duran
had signed an authorization card and that Duran could not
have signed one because he did not work that day. Coats
told Vance to wait there at the electric shop, they would
take care of it. Coats left. When he returned about an hour
later, he told Vance he was going to send him more help
since he was far enough along with framing so that they
could start setting poles. Coats handed Vance a paper with
Gillespie's, Babcock's, and Doby Williams' names on it
and said those three men were to be transferred to Bagdad
the next morning. He gave no explanation. Coats further
said he, Marthers, and Quinn were going to Wikieup to see
how the work was progressing and that Foreman Bill
Quinn and his crew would start work at Wikieup the next
day.8
However, according to Vance, about a week before,
Coats asked if he could finish by March 1. Vance said it
was impossible. He then asked if Vance could finish by
March 15. Vance said he thought he could if he was
provided more men and equipment. Vance said he needed
linemen, that they were getting ahead on framing poles and
needed to start setting poles but to set poles, more linemen
were needed.
Later that day when Vance returned to the Wikieup site,
Coats, Marthers, and Quinn were already there. Frost
testified that, when Coats walked past him, he asked Coats
if everything was all right. Coats said no and kept walking.
Frost further testified that after Coats, Marthers, and
Quinn left, he asked Vance if Coats were dissatisfied with
the work. Vance said no. Frost informed Vance of the day's
progress. Vance said he had reported their union activity.
Frost said he was surprised and asked why. Vance said he
was hurt because he had not been invited to the February
14 meeting and that, since he was a foreman, he felt he had
an obligation to Respondent and he did not want them to
find out through the grapevine. He then asked what Frost
would have done. Frost replied that he would have
continued working and let it go at that. Vance said maybe
he had acted hastily.
According to Vance, Frost said Coats was not acting
right and asked what was wrong with him. Vance said
Coats seemed all right to him. Frost asked if Respondent
employees but has the authority to fire employees in certain circumstances.
These include endangering oneself and others by failing to obey safety
regulations and refusal to obey Vance's orders. Vance testified that he had
authority to select persons to be reassigned from Bagdad to Wikicup and to
effectively recommend disciplinary action.
6 Duran was not in Wikieup on February 14. He signed an authorization
card on February 15.
7 Frost and Doby Williams testified that this was not the first time Vance
had discussed his views on unionism. Several weeks earlier, in such a
discussion, Vance said he had trouble with IBEW (the Union) in his 25 years
as a member. He further said that Brown & Root could never be unionized
as they were too big and that this was not the time to unionize them.
8 The portion of the charge alleging a violation of the Act by the transfer
of additional men to the Wikieup jobsite was dismissed by the Regional
Director.
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew about the union activity. Vance said he had reported
it. Frost said he did not think Vance should have done that.
Vance said he felt that he should. Vance conceded he may
have made a mistake but he reported it because he thought
it was his duty. Vance also said that they were going to
have all the help they needed, that Bill Quinn's crew would
be there the next morning.
At the end of the shift that day, Vance called his crew
together. According to Roy Williams, Vance said "If I had
it to do over again I'd do it the same way and all things
have a cause and an effect. The effect of what you guys did
last night is that these three men, Gillespie, Babcock and
Doby are going back to Bagdad to work in the morning to
report to Mr. Coats in Bagdad." Babcock and Doby
Williams 9 testified in essential agreement. Frost testified
that he did not hear the first part of the conversation.
Duran testified that he does not recall all of the conversa-
tion but that Vance said he had reported their union
activity, that he felt this was his duty. He further testified
that he has a vague recollection that Vance mentioned
something about one reaction causing another reaction.
Vance testified that he said, "For every action there is a
reaction, and three guys are being transferred back to the
mine." He then named Babcock, Gillespie, and Doby
Williams. Babcock asked why they were being transferred
in the middle of the week. Vance said he had been given
the note and he was just following orders. He denies saying
that they were being transferred because of their union
activity or that he was ever told that was the reason for the
transfer.
I credit the employee witnesses that Vance specifically
said that the transfers were caused by their union activity.
Their testimony is mutually corroborative. Vance admits
that he said for every action there is a reaction and three
guys are being transferred back to Bagdad. Clearly he was
saying that the transfers were a reaction to something. He
does not deny that this was said in the context of stating
that he had reported their union activity. Even assuming
that he did not specifically say that the transfers were
caused by the union activity, I would find that in the
context Vance intended to, and did, convey the meaning
that the transfers resulted from the union activity.
On February 16, Quinn and 11 additional electricians
and helpers began work at the Wikieup site. None of these
persons were linemen. Some could climb poles but they
could not do hot work. Also transferred to Wikieup on
February 16 was a heavy equipment operator with a
backhoe which was used for digging and filling the holes.
Some of these employees worked with Quinn setting poles.
This involved putting the poles into a hole and shoveling
9 Doby Williams testified that Vance said the transfers were the reaction
from the action they took the preceding evening. However, in his pretrial
affidavit, he stated that Vance did not say why they were going to Bagdad,
nor did he say it was because of the Union, or the effect of the union activity
of the preceding evening. Williams testified that he was nervous when he
gave this affidavit and did not recall this statement of Vance's. He testified
that his affidavit is incorrect in this regard.
io Lemke was a second-class electrician helper hired November 9, 1976.
" Frost creditably testified that Lundy, Ball, Mead, and two others
whose names he does not recall worked in his crew. He recalls that one was
called Les and the other Wes. Wesley Able was one of the persons assigned
to Wikieup on February 16. Several of these employees have the initial "L"
but there is no way to identify one as Les. Lundy was an electrician hired
dirt in to hold the pole. At least four of them, Eric
Lemke, 10 Jack Lundy, John Ball, and Leon Mead,"
worked with Vance's crew. According to Vance, the two
crews were working together pole for pole, setting poles,
tamping poles, stringing wire, and laying it on the pole.
On February 16, the Union filed a representation
petition with the Board in Case 28-RC-3274 seeking a unit
of eight persons in the linecrew at Wikieup.' 2 On February
18, the Union notified Respondent by mailgram that
Babcock, Frost, Gillespie, Doby Williams, Roy Williams,
Wilson, and Duran were assisting in its organizing cam-
paign.
On February 22, five linemen were transferred to
Wikieup from Respondent's projects in New Mexico and
Texas. They worked on Vance's crew. On February 17
Wilson quit.
On or around February 23 or 25, Roy Williams asked
Vance if his son, Doby, could be reassigned to Wikieup as
his helper. Vance said he did not think so but he would ask.
The next day Vance told Williams that Coats had refused.
Babcock testified without contradiction that when he
returned to Bagdad, Larry Kelso was his foreman.' 3
Babcock's undenied testimony, which I credit, is that on
February 18, he called Kelso aside and said he had a pretty
good idea why he was transferred back to Bagdad, the
union cards they signed in Wikieup. Kelso said he knew
about the cards. Babcock said he liked what he was doing,
he did not come to Bagdad to cause trouble or make waves,
and he was there to work and do a good job. Babcock
further said he did not really understand much about
Unions and authorization cards because he had never been
involved with any Union before. Kelso said there was 45
days in which to hold an election and that the job in
Wikieup would be finished before they had a chance to
hold an election. He further said that if Babcock kept his
nose clean and stayed away from Doby Williams, every-
thing would be all right.1
Around March 2, according to Vance, he told Coats that,
in order to meet the schedule, he needed additional ground
help, that he had linemen helping linemen. Coats said he
would send over additional helpers. On March 3, Doby
Williams, Gillespie, and Babcock were reassigned to
Wikieup. Williams and Gillespie worked on Vance's crew
and Babcock was assigned to the pumphouse.'5 According
to Vance, they had reached the point of clipping in, which
meant the crew was scattered out more than when they
were setting poles and stringing wire so a helper was
required for each lineman.
On March 6, according to Vance, they ran out of
material. They had completed the structure for a river
October 28, 1976. Ball was an electrician hired August 24, 1976, and Able
was an electrician hired January 18. 1977. Mead was a third-class helper
hired December 2, 1976.
12 On April 12, the Regional Director approved the withdrawal of the
petition without prejudice.
13 Davis testified that all foremen possess the same authority as Vance.
Babcock testified without contradiction that Kelso wore a gold hat. Davis
testified that general foremen wore gold hats and had authority to hire and
fire. Accordingly, I find that Kelso was a supervisor within the meaning of
the Act.
t4 The allegations of the charge based on this conversation were
dismissed.
15 The pumphouse was not part of the linework.
720
BROWN & ROOT, INC.
crossing according to the original plans. Thereafter, the
inspector suggested a change in the plans and special
materials had to be ordered to effect this change. Also,
three plates were missing for the last two spans going into
the pump station.
On March 4, Frost, Duran, Roy Williams, and Doby
Williams were reassigned to Bagdad, with Robert Reavis as
leadman. According to Vance, he had two poles on order
for a line going down to the crusher at Bagdad. When these
poles arrived, he sent these four men to Bagdad because
they were familiar with the standards to frame the poles
and get them ready to set. On March 6, when they had
gone as far as they could, without the additional materials,
at Wikieup, the remainder of the linecrew was reassigned
to Wikieup, where they finished setting the poles and
stringing the wire at the crusher site.
On March 7, Frost, Duran, and Gillespie 16 were laid off.
Doby Williams and Roy Williams were laid off on March
8.17 Four of the linemen from New Mexico and Texas were
laid off on March 7. The fifth one had left earlier due to
illness.
Babcock testified that on March 7, Quinn told him to
report to Bagdad on March 8. On March 8, when Babcock
reported to work at Bagdad, Quinn told him he had been
laid off. Later that morning, Babcock talked to Blaskovitch
and General Foreman Mike Hugg. According to Babcock's
undenied testimony, which I credit,Rs he told them he had
been laid off and he really hated to leave. Blaskovitch said,
"Well, we hate to see you leave. We stuck up for you, but
there wasn't anything we could do. Word from above said
you had to go, and that's all we could do."
Vance testified that he neither participated in the
decision to reduce the work force nor in the selection of
those to be laid off. Coats instructed him to have his crew
report to the office. He did not explain why but Vance
testified that he knew the reason, the work was finished
and a layoff was required.
On May 6, Craig Crawford from Respondent's personnel
department offered Frost reinstatement. Frost refused
because he had just been hired on another job. Duran was
reinstated on May 19 and was laid off again on July 1. By
separate letters dated May 12, Babcock and Gillespie were
offered reinstatement. Both letters state:
Your last employment on this project was terminated in
a reduction of force and for no other reason. If you
consider that you were discriminatorily discharged for
union activities you are mistaken but you may consider
this an unconditional offer of reinstatement to your
former position.
Davis testified that neither Babcock nor Gillespie respond-
ed to these letters. Babcock gave no testimony in this
regard. Gillespie did not testify. There is no evidence in the
"I Gillespie had been reassigned to Bagdad on March 5.
i7 Neither Roy Williams nor Doby Williams worked on March 8.
is This conversation was not mentioned in Babcock's preheanng affida-
vit. However, the testimony is undenied. Furthermore, Vance corroborates a
portion of Babcock's testimony as to the February 15 conversation which
does not appear in Babcock's affidavit. Considerng his demeanor, the
internal consistency and the corroboration of much of his testimony, I find
Babcock to be an honest, reliable witness whom I credit.
I9 Respondent argues that such a reassignment does not amount to
record that Doby and Roy Williams were offered reinstate-
ment.
CONCLUSIONS
I. The reassignments
The complaint alleges that Doby Williams, Babcock, and
Gillespie were reassigned from Wikieup to Bagdad on
February 16 because of their union activity.'9 Respondent
contends that this was a normal reassignment in accor-
dance with Respondent's practice of moving helpers
between worksites and assignments almost on a daily basis.
Respondent further argues that it had no reason to be
concerned regarding union activity since its attorney had
advised that the linework at Wikieup would be completed
before an election could be held.
It is undisputed that Respondent did transfer or reassign
personnel between the Bagdad and Wikieup sites. How-
ever, there is no evidence that such occurred with the
frequency that Respondent argues. Thus, there is evidence
of only three instances of reassignment from Wikieup to
Bagdad between the commencement of the linework in
Wikieup in mid-January and March 6 when this work was
halted. In mid-January Doby Williams was sent back to
Bagdad for 2 days and then returned to Wikieup. On
March 2, Frost, Roy Williams, and Doby Williams were
the first of the Wikieup linecrew to be reassigned to
Bagdad. The work at Wikieup was expected to cease within
2 or 3 days thereafter and these men were reassigned first
because they were experienced at framing poles and were
expected to do the framing so that when the remainder of
the crew returned to Bagdad they could proceed to set the
poles and string the wire. The only other instance of
reassignment to Bagdad is the February 16 reassignment
involved here.
Thus, it does not appear that these reassignments were so
frequent or so routine that a reasonable necessity for the
transfer must be assumed. Here the facts argue against a
proper motivation for the reassignment. Williams, Bab-
cock, and Gillespie were reassigned out of Wikieup at the
same time that the work force at Wikieup was being
increased. Respondent offers no explanation of why help-
ers with at least some experience with the linework at
Wikieup were transferred out at the same time that helpers
without experience at this work were transferred into
Wikieup.
This circumstance coupled with Vance's statement to the
effect that the reassignments were a result of the union
activity of the previous evening tends to establish an illegal
motivation for the reassignments.
Respondent argues that even if Vance made the above
statement he was merely expressing his opinion, since he
made neither the decision to reassign persons to Bagdad
descrinmnation whatever the motivation. I disagree. Employee witnesses
testified without contradiction that reassignment between Bagdad and
Wikieup requires changes in transportation and housing arrangements
resulting in an economic loss. Thus, Duran testified that when he was in
Bagdad before being reassigned to Wikieup he commuted from Wickenburg
in a car pool. When he was reassigned to Wilieup he could not continue in
the car pool so he moved a camp trailer to the Wikieup vicinity and had
paid a month's rent. The project is spread out about 40 or 50 miles.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor the selection of the persons to be reassigned. I find no
merit in this argument. Vance told Coats about the Union
activity. Coats' response was, "wait here, we will take care
of it." Then Coats returned with the three names written on
a piece of paper and instructed Vance that they were to be
reassigned to Bagdad the next day. A logical, reasonable
inference is this was the way they were taking care of the
situation.
Furthermore, Vance testified that, in reassignments,
normally he was instructed to send a certain number of
men to Bagdad and he selected the persons to be reas-
signed. Thus, Respondent deviated from usual practice
when Coats selected the specific persons to be reassigned.
In all the circumstances I find that Doby Williams, Rex
Babcock, and Douglas Gillespie were reassigned to Bagdad
on February 15 because of their union activities in
violation of Section 8(aX I) and (3) of the Act. 20
2. The layoffs
The complaint alleges that Roy Williams, Doby Wil-
liams, Dennis Frost, Rex Babcock, Douglas Gillespie, and
Gilbert Duran were laid off because of their union
activities. In support thereof the General Counsel argues:
(I) That the evidence establishes that Respondent schemed
to accelerate the completion of the linework at Wikieup so
as to rid itself of the union supporters; (2) the incompe-
tence of the employees assigned to the job on February 16
and 22; (3) the increase in overtime; (4) only those who
signed cards were discharged; (5) the statement by Blaskc-
vitch to Babcock; (6) Coats' statement to Frost that after
all lines were built he could remain in Respondent's
employ as an inside electrician; and (7) the shifting reasons
given by Respondent to explain its selection of persons to
be laid off.
As to the argument that the work was accelerated
because of the union activity, although counsel tbr the
General Counsel makes this argument in his brief, this is
not a part of General Counsel's theory of the case. The
Regional Director specifically dismissed that portion of the
charge alleging that Respondent violated the Act by
transferring employees to the Wikieup site on February 16
and 22. Accordingly, no finding of a violation can be based
thereon.
As to the increase in overtime, the evidence is insufficient
to establish that this was done for any reason other than to
meet Respondent's schedule. General Counsel argues that
there was no corroboration of Davis' testimony that March
I was the target date for completion. I find no reason to
discredit Davis in this regard and the testimony of Frost2l
as to when certain phases of the work were to be completed
tends to corroborate Davis' testimony. 22
As to the competency of the employees assigned to
Wikieup on February 16 and 22, and the use of certain
20 In reaching this conclusion, I have considered all of Respondent's
arguments and the cases cited in support thereof.
21 Frost testified that before any union activity he was teld that
Respondent wanted all the poles set and the control cables strung by mid-
February which would leave to be done only setting the transformer banks
and stringing the wire. He was also told that the people who tested the
cables thought the work was not progressing as fast as it should. The record
is not clear as to who these people were but Frost testified that they were not
Respondent's employees.
equipment, much of the evidence offered in support of
General Counsel's position is nothing more than an
attempt on the part of employee witnesses to substitute
their judgment for Respondent's. Respondent's decision to
use a backhoe and to use inside electricians is not so clearly
indefensible as to raise any inference of illegal motivation.
The backhoe did in fact accomplish the job in a manner
which passed inspection. Vance testified without contradic-
tion that the work of setting and tamping poles did not
require the specialized skills of a lineman. Furthermore, he
testified that even though they could not do hot work some
of them could climb poles and string wire. Certainly they
completed the work almost on schedule.2 3 Accordingly, I
find no merit in this argument.
Similarly, General Counsel's reliance on the fact that the
linework at Wikieup was not completed is misplaced.
There is no dispute, the linework at Wikieup was not
complete. However, the evidence is not sufficient to
establish that this work ceased for any reason other than
that asserted by Respondent, a change in plans suggested
by an inspector required the ordering of additional materi-
al which had not arrived.24
In these circumstances, the evidence will not support a
finding that the layoff itself was illegally motivated. The
critical issue is the selection of the persons laid off. Roy
Williams and Dennis Frost creditably testified that Vance
was less than enchanted with the skills of the persons
assigned to the Wikieup site on February 16 and 22.
However, the four linemen were also laid off on March 7.
As to the electricians and helpers assigned on February 16,
they did not purport to be linemen and there is no evidence
to establish that they were retained after March 7 to do
linework. Rather, Davis testified that they were retained to
do inside work such as they had done prior to being
assigned to Wikieup. Hence, their relative competence to
perform linework has no real significance.
During the prehearing investigation of this matter,
Respondent's position set forth in a letter to the Regional
office from counsel for Respondent was:
It is the practice of the Company in making selection
for layoff in reduction of force after determining need
in each classification and special skill, to retain its best
employees, and to select for termination its less promis-
ing employees, and in this case the selection was made
on that basis. This does not mean that those eliminated
are incompetent.
Davis testified that the type of people that were laid off
were the linemen and helpers who were hired for the
specific purpose of doing that work. The ones that were
retained were those that had been utilized for the general
electrical work in the millsite area and could be utilized
there again after the completion of this work. The facts
22 Davis testified that the work was 98 percent complete as of the target
date.
23 Roy Williams testified that when he was hired he was told by Pete
Moore that there would probably be 4 to 5 months of linework. The record
does not clearly establish the identity of Pete Moore. Williams testified that
he evidently was the person who did the hinng on the project.
24 Roy Williams admits that they ran out of certain material needed to
complete the job, but contends that it was possibly not needed to have work
to do after March 7. He did not elaborate.
722
BROWN & ROOT, INC.
belie this contention. Babcock first worked in the millsite
area for 5 or 6 weeks before he was transferred to Wikieup
to work on the linecrew, and at the time of his layoff, he
was not on the linecrew. He was doing inside work at the
pump station. Frost's undenied testimony, which I credit, is
that in December Coats told his crew, which included
Vance, Frost, and Wilson, that after all the lines were built
they could stay on as inside electricians.
Duran had been employed by Respondent as a helper
since September 1975. He worked with the ironworkers
until they finished and then he transferred to the electrical
crew. He worked in Bagdad for 2 days and was then
reassigned to the linecrew at Wikieup. Nor can the
selection for layoff of only those persons who signed union
authorization cards be explained by saying that Vance's
entire crew was terminated. 25 Electricians assigned to
Wikieup on February 16 worked on Vance's crew, yet they
were retained.
Davis testified that the selection of the persons to be laid
off was made by Coats either alone or in consultation with
his general foreman. Blaskovitch was general foreman at
the time and became electrical superintendent in the latter
part of March when Coats left Respondent's employ.
Neither Coats nor Blaskovitch testified. Respondent made
no representation that Coats was unavailable. In fact,
Davis admitted that no attempt was made to locate him.
From the above, it is apparent that at the very least
Respondent considered Babcock and Frost capable of
doing inside electrical work. Babcock was laid off even
though he was not on the linecrew at the time of the layoff,
according to Vance's testimony. Duran had been employed
by Respondent for more than a year and prior to his union
activity had been retained even though such retention
required him to switch from ironworkers helper to electri-
cians helper. Furthermore, there is no evidence that
Respondent inquired as to the capabilities of the laid-off
personnel to do inside electrical work. Also, when Respon-
dent made offers of reinstatement, in an apparent effort to
toll backpay, no offer of reinstatement was made to the
union instigator, Roy Williams or his son, Doby Williams.
There is no evidence that at that time Respondent had any
knowledge of their availability or lack of such.
In all the circumstances including those set forth above
and in view of Blaskovitch's statement to Babcock on the
day of his layoff, I find that Respondent selected employ-
ees for layoff because they had signed union authorization
cards. Accordingly, I find that Roy Williams, Doby
Williams, Dennis Frost, Gilbert Duran, Douglas Gillespie,
and Rex Babcock were laid off in violation of Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
I. Brown & Root, Inc., is an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
25 The four linemen from New Mexico and Texas were laid off from the
Cypress-Bagdad Copper Company project payroll. However, Davis admits
that the agreement was that when he no longer needed them he would give
them referrals back to the projects from which they came and that he
complied with this,
2. International Brotherhood of Electrical Workers,
Local 769, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By unlawfully reassigning Rex Babcock, Douglas
Gillespie, and Doby Williams to the Bagdad jobsite,
Respondent violated Section 8(aX3) and (1) of the Act.
4. By unlawfully laying off Roy Williams, Dennis
Frost, Rex Babcock, Douglas Gillespie, Doby Williams,
and Gilbert Duran, Respondent violated Section 8(aX3)
and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(Xl1) and (3) of the
Act, I shall recommend that Respondent be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purpose of the Act.
To the extent it has not already done so 26 it is
recommended that Respondent offer Roy Williams, Doby
Williams, Dennis Frost, Gilbert Duran, Rex Babcock, and
Douglas Gillespie immediate and full reinstatement to their
former positions, or, if those positions no longer exist, to
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and make each of
them whole for any loss of pay they may have suffered as a
result of the discrimination against them by payment to
them of a sum of money equal to that which each would
have earned as wages during the period from the date of
their layoff to the date on which Respondent offers
reinstatement less their net earnings, if any during the said
period, to be computed in the manner set forth in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 7 percent per annum, Florida Steel
Corporation, 231 NLRB 651 (1977).
In the event, Respondent's operations at the Cypress-
Bagdad Copper Company project in Bagdad and Wikieup,
Arizona, has been completed 27 or has reached a point
where their former or substantially equivalent jobs do not
exist, the foregoing is modified to the following extent:
Respondent shall notify the above-named discriminatees,
in writing, that it has no objection to hiring them for any
electrician or helper's position for which they may be
qualified and shall place their names at the top of a
preferential hiring list for any electrician or helper's
position which may be filled in the State of Arizona after
this Decision for any skill in which they are qualified. And,
when such positions become available, offer it to them in
the order of their prior seniority with Respondent, and
make each of them whole for any loss of earnings suffered
by reason of the discrimination against them in the manner
set forth above. In addition, Respondent shall include in
the letter to the aforesaid discriminatees a copy of the
notice which would otherwise have been posted if the
26 Although the record indicates that Respondent offered to rehire some
of the discriminatees and that some were in fact reemployed, the record is
insufficient to establish whether the offers and the reemployment consti-
tuted proper reinstatement or offers of reinstatement.
27 Davis testified that the project was almost complete.
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations had not been completed, as described above,
and shall mail copies of the notice to all its employees,
employed in the electrical department at the Cypress-
Bagdad Copper Company project on March 7, 1977. J. S.
Alberici Construction Co., Inc., 231 NLRB 1033 (1977);
Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd.
388 F.2d 495 (C.A. 2, 1967).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER2 8
The Respondent, Brown & Root, Inc., Bagdad, Arizona,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off, reassigning, or otherwise discriminating
against employees with regard to their hire or tenure of
employment or any term or condition of employment for
engaging in activities on behalf of a labor organization, or
for engaging in activities protected by Section 7 of the Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) To the extent it has not already done so, if
Respondent's operations at the Cypress-Bagdad Copper
Company Project in Bagdad and Wikieup, Arizona, is still
in progress, offer to Roy Williams, Doby Williams, Rex
Babcock, Dennis Frost, Douglas Gillespie, and Gilbert
Duran immediate and full reinstatement to their former or
substantially equivalent positions, and make each of them
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him in the
manner and to the extent set forth in the section herein
entitled "The Remedy."
(b) In the event that such operations have been com-
pleted, make the above-named discriminatees whole as
aforesaid for any loss of pay by reason of the discrimina-
tion against them. Assure them, in writing, of their future
eligibility for employment and place them at the top of a
preferential hiring list, in the manner and to the extent set
forth in the section herein entitled "The Remedy."
(c) In the event that such operations are still in progress,
post at said project copies of the attached notice marked
"Appendix." 29 Copies of said notice to be furnished by the
Regional Director for Region 28 shall, after being signed
by Respondent's representatives, be posted by Respondent
immediately upon receipt thereof, and remain posted as
long as Respondent's operations on the Cypress-Bagdad
Copper Company project are in progress, but for a period
no longer than 60 days from the date of posting, in
conspicuous places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) In the event that such operations have been com-
pleted, as described in the section herein entitled "The
Remedy," mail copies of the aforesaid notice to the
employees specified therein.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this recommend-
ed Order.
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Decision, what
steps it has taken to comply herewith.
2s 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.
29 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend to
carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these rights.
WE WILL NOT reassign, discharge, or otherwise
discriminate against you for engaging in activities on
behalf of International Brotherhood of Electrical
Workers, Local 769, AFL-CIO, or any other labor
organization.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act, as amended.
WE WILL, to the extent we have not already done so,
offer to Roy Williams, Doby Williams, Dennis Frost,
Rex Babcock, Gilbert Duran, and Douglas Gillespie
immediate and full reinstatement to their old jobs or to
substantially equivalent jobs, if we have not completed
our operations at the Cypress-Bagdad Copper Compa-
ny project in Bagdad and Wikieup, Arizona.
WE WILL, if our operations on that project have been
completed, assure each of the above-named employees
724
BROWN & ROOT, INC.
that they are eligible for future employment with us,
and place them on a preferential hiring list.
WE WILL make each of the above-named employees
whole for any loss of earnings which they may have
suffered by reason of the discrimination against them.
BROWN & ROOT, INC.
725