Cleanco Nuclear, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1984

269 N.L.R.B. 243 (N.L.R.B. 1984)

CLEANCO NUCLEAR, INC.
Cleanco Nuclear, Inc. and Robert Govoni. Case 2-
CA-19079
16 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 27 June 1983 Administrative Law Judge
Raymond P. Green issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
opposition to the General Counsel's exceptions.
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, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me on March 17, 18, and 31 and April
1, 1983. The charge herein was filed by Robert Govoni
on August 23, 1982, and a first amended charge was filed
on August 26, 1982. The complaint was issued by the
Regional Director for Region 2 of the National Labor
Relations Board on October 29, 1982. In substance, the
complaint as amended at the hearing alleged as follows:'
I. That various employees of Respondent, in August
1982, concertedly protested their wages and benefits.
2. That on August 19, 1982, certain of Respondent's
employees engaged in a strike or work stoppage in fur-
therance of their demands for higher wages and benefits.
3. That on August 19, 1982, various officers and super-
visors of Respondent threatened employees with dis-
charge and blacklisting unless they abandoned their work
stoppage.
At the close of the hearing, the General Counsel withdrew par. 6(a)
of the complaint because no evidence was adduced to support it. It al-
leged that on August 19, 1982, the Respondent by Supervisor Arthur
Mueller threatened employees with discharge.
269 NLRB No. 48
4. That on August 20, 1982, Respondent discharged its
employees Robert Govoni, Dennis Thompson, Steven
Freiling, Wayne Collins, MacLeod Raines, James Smith,
William Lofton, and William Lyman because of their ac-
tivities set forth above in paragraphs 1 and 2.
Respondent's basic assertion is that it did not threaten
any employees as alleged by the General Counsel and
that it did not discharge any of the employees involved.
It contends that when the employees engaged in the
work stoppage on August 19 and 20, it urged them to
return to work and that, at most, it told the employees
that they could be replaced. Respondent asserts that
when these employees did not return to work on August
20, it assumed, based on the conversations held, that they
were quitting, and that it made arrangements to replace
them by transferring other of its employees to the work-
site in question and by hiring additional employees. It
also asserts that except for Wayne Collins, the other al-
leged discriminatees did not offer to return to work at
anytime after August 20. As to Wayne Collins, Respond-
ent contends that, although he did request his job back in
November 1982, it had no openings for him.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses and
after considering the briefs filed by the General Counsel
and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Cleanco Nuclear, Inc. is a New York corporation per-
forming, inter alia, cleaning and nuclear decontamination
services for various utilities in New York and other
States. It is conceded that, annually, Respondent per-
forms services valued in excess of S500,000 for enter-
prises located outside the State of New York. Respond-
ent also admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE OPERATIVE FACTS AND CONCLUDED
FINDINGS
The incidents involved herein occurred in connection
with services performed by Respondent for Consolidated
Edison (Con Ed) at the latter's nuclear power plant lo-
cated at Indian Point, New York. In relation to its con-
tract with Con Ed, Respondent employed, in August
1982, approximately 60 employees who were classified as
radiation technicians.2 As these employees work in "off
limit" areas of the nuclear facility, they are issued badges
by Con Ed which permit them access to the plant.3
About the beginning of August 1982, it appears that
some of Respondent's employees (who at that time were
I Cleanco's contract with Con Ed requires it to provide certain mini-
mum and maximum crews depending on the needs of Con Ed.
Before a badge is issued to an employee of a subcontractor, it must
be shown to Con Ed's satisfaction that the employee has a designated
work function at the site and that he poses no security risk. When a per-
son's employment with a subcontractor terminates, for example, because
he quits or is fired, his badge is removed. Badges can, however, be rein-
stated if the employee resumes work.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not represented by any labor organization), 4 began talk-
ing among themselves regarding their wages and bene-
fits. Thereafter, a letter dated August 13 was transmitted
to Respondent. 5 This letter, which was signed by 19 of
Respondent's employees, read as follows:
Due to the high cost of living caused by inflation
and other factors, we employees of CLEANCO are
asking you to consider a pay increase for the experi-
enced De-Con Technicians on site here at INDIAN
POINT. We believe that our experience and exper-
tise has been and will be beneficial to the company
but we find ourselves at a lower pay scale than em-
ployees recently hired. This situation we find intol-
erable and we ask that you rectify it. We are also
asking for a percentage of a group Medical, Dental
and Life Insurance to be paid by the company.
We are respectfully submitting this request to
you in good faith and we hope you will respond in
same by August 18, 1982.
When no response was made to the above letter, a
number of the employees decided to have a sick out
commencing on Thursday, August 19, 1982. Thus, on
August 19, about 20 of Respondent's employees gathered
at the Peekskill, New York train station where they each
proceeded to call in sick.
After the employees called in sick, employee Greg
Weston placed a call to the Company's New York City
office and spoke with Mel Hensch, a vice president. Ac-
cording to Mr. Hensch, 6 and essentially corroborated by
Kevin McDermott, who listened in on an extension,
Weston asked if the petition had been received and what
the Company was going to do about it. Hensch asked
Weston if he was the spokesman and when the latter said
no, the phone was given over to Dennis Thompson. Ac-
cording to Hensch, he told Thompson that, as the peti-
tion had been received on August 17, the Company had
not had time to respond to it. He also testified that he
told Thompson that, as far as he could see, the employ-
ees involved were not a majority and that the Company
could not negotiate. At this point, according to Hensch,
Thompson said that the employees would not return
until the Company negotiated and agreed to certain
wage and benefit demands. Hensch states that he told
Thompson that this sounded like an ultimatum, that it
would be best if the men returned to work so that
Cleanco could fulfill its contractual obligations to Con
Ed, and that the Company would be glad to meet with
any group of spokesmen who represented a majority
when they returned to work.
A short time later (about 9 a.m.), Thompson again
called Hensch and said that the men were not willing to
return to work until after the Company's representatives
met with them. According to Hensch, when he again re-
4 It appears that, subsequent to the events in this case, a union orga-
nized Respondent's employees and that Respondent thereafter recognized
and entered into a collective-bargaining agreement with that union.
' Although there is some dispute as to precisely when the letter was
transmitted to the Company, it is clear that it was given no later than
August 18.
e Weston was not called as a witness.
ccived a negative reply to his request that they return to
work, Thompson said that the group wanted their final
paychecks, and that Thompson read off a list of employ-
ee names. Hensch states that he agreed to bring up the
final checks that afternoon and that he thereupon in-
structed the payroll department to make up the regular
checks and the final checks for the work done to date.7
According to Hensch and McDermott, they assumed
that the employees, through Thompson, were indicating
their intention of quitting.
According to Thompson, on the morning of August
19, he spoke with Hensch on the phone on two occa-
sions. He states that on the first occasion he told Hensch
about the petition, whereupon Hensch said that he could
not discuss it unless the men came back to work.
Thompson asserts that, on the second occasion, he told
Hensch that the employees wanted Hensch to come up
and talk to them, whereupon Hensch said that, if he had
to come up, he was bringing their checks. According to
Thompson, he asked Hensch what he meant by "checks"
and that when Hensch reiterated that he was going to
bring them up, he told Hensch, "if that's the way it is,
that's the way it is." Thus, according to Thompson's ver-
sion, he did not ask for any checks, much less the final
checks, and he implies that he understood Hensch's com-
ments as meaning that the employees were about to be
discharged.8
According to Mel Hensch, when the checks were not
ready on time, Supervisor Vincent Stasio was dispatched
to tell the strikers that Hensch and McDermott would be
up with the checks a little later. Stasio arrived at the
parking lot of Oscar's Restaurant about 1 p.m., where he
met with the striking employees. According to Stasio, he
told the employees that the checks were late whereupon
they left to go to a nearby park. He also states that he
again met with them about an hour later, after Mel
Hensch and Kevin McDermott left the checks with him.
The General Counsel presented as witnesses five of the
employees who are alleged as discriminatees in this pro-
ceeding. These were Dennis Thompson, John Raymond
Smith,9 Wayne Jubal Collins,10 Steven Freiling, and
William Lyman. All these witnesses testified to a meeting
with Stasio on August 19, but give somewhat divergent
accounts of what took place.
According to Mr. Lyman, Stasio told the group that
they were jeopardizing their positions with the Company
and that, if they did not return to work, they would be
terminated. He states that he told Stasio that he would
not return under the conditions that existed. On cross-ex-
amination, Lyman testified that, after he and Govoni re-
lated their concerns about conditions at Indian Point,
Stasio said that there was nothing he could do about it
I Normally, the checks are a week behind and given out on Fridays.
Final checks are ordinarily given when an employee quits or is dis-
charged.
s There was testimony from Respondent's witnesses to the effect that
during conversations they had with various employees on August 19, that
these employees had been told by Thompson that they had been fired.
9 It appears that he also is referred to as James Smith.
10 Wayne Collins has a brother named Michael Collins. As noted infra,
Michael Collins also participated in the sick outs on August 19 and 20,
but did return to work on August 20 about 11:30 a.m.
244
CLEANCO NUCLEAR, INC.
and that it would be beneficial if the employees went
back to work. Lyman further states that at one point
Stasio gave out checks but that the employees handed
them back.
Dennis Thompson testified that at the parking lot
meeting, Stasio said that he was there to tell the employ-
ees that Mel Hensch was on his way up with the checks.
Thompson states that Stasio told the group that they
should go back to work and that if they did not, "there
is not going to be a job."
John Smith testified that Stasio said that it would be
best if the employees returned to work and not cause any
problems. He asserts that Stasio said that, after the em-
ployees went back to work, the Company would have
someone come up and talk to them. Smith states that he
told Stasio that if the Company wanted to talk, they
could do their talking now. On cross-examination, Smith
testified that Stasio, basically, was trying to get the
people back to work and that he said that management
would talk to them, provided they were not trying to
have an employee takeover. Smith did not testify to any
threats by Stasio.
Wayne Collins testified that Stasio said that the em-
ployees should go back to work, give the Company 10
days, and that management would talk to them about
their problems. Wayne Collins did not relate any threats
of discharge by Stasio.
Steven Freiling also testified about a meeting with
Stasio at the parking lot, which he asserts occurred
around I p.m. He states that he asked Stasio, when
Stasio was handing out checks, "does this mean I'm
fired." Freiling says that Stasio answered in the negative,
whereupon he told Stasio that he did not want his check.
As to his refusal to accept the check, Freiling testified
that he would not take his check unless told that he was
fired, which Stasio refused to do. Like Collins and
Smith, Freiling did not relate, in his testimony, that
Stasio made any threats of discharge.
Stasio's version of these events is as follows. He states
that, on the morning of August 19, he was in the office
when Mel Hensch got the phone call from Weston. He
states that he overheard Mel Hensch's side of the con-
versation wherein Hensch asked the men to go back to
work and that he heard Hensch agree to bring up the
paychecks. According to Stasio, when the checks were
not ready by 11:30 a.m, he was dispatched to go upstate
and tell the Employer that Mel Hensch and Kevin
McDermott would be late in arriving with the checks.
According to Stasio, when he arrived at the parking
lot, he first met with employee Ed Carballo who said
that he did not want to be part of the sick out and asked
if he could go back to work. Stasio states that he said
yes. He also states he met Hector Mayorial who also in-
dicated that he wanted to go back to work, but could
not return until Friday. Stasio states that he told Mayor-
ial that this was no problem. A few minutes later, ac-
cording to Stasio, about 14 or 15 employees approached
him and stated their feeling that they were getting a run
around from the Company. Stasio testified that he told
them that they were going about it the wrong way and
that, if they went back to work, they could probably
solve their problems a lot easier than by taking a job
action. They disagreed. According to Stasio, when they
asked why Mel was not there, he told them that their
checks had not yet been processed, whereupon they said
that the checks had been promised for 1 p.m. At this
point, according to Stasio, the group left, albeit, Mayor-
ial, Carballo, and William Lyman stayed behind. In this
respect Stasio asserts that he never said anything about
discharges at this or any other time.
Stasio testified that, about 5 minutes later, Mel Hensch
and Kevin McDermott showed up and that he related
what had just occurred. He also states that, after con-
versing briefly with Mayorial and Carballo, they were
told that they could take the rest of the day off and
come back to work on Friday, August 20. According to
Stasio, when Lyman was informed of the presence of
Hensch and McDermott, Lyman left, and the group of
Stasio, Hensch, and McDermott waited at the parking
lot for about a half hour. When the strikers did not show
up, Stasio was given the checks (in envelopes), where-
upon Hensch and McDermott went to Con Ed.
Stasio states that the men soon came back and that he
then called Con Ed to advise Hensch and McDermott of
their return. He states that the employees complained
about the absence of Hensch and McDermott, and reas-
serted their opinion that the Company was giving them a
run around. At this point, according to Stasio, the em-
ployees asked for their paychecks and he proceeded to
hand them out, while some of the employees were put-
ting their uniforms on Stasio's car. He states that after
distributing about four or five pay envelopes, Govoni
took them from the employees and said that he wanted a
letter indicating that the employees had been discharged.
Stasio asserts that he refused to give such a letter, telling
the employees that no one was being discharged. Ac-
cording to Stasio, Govoni gave him back the checks. (As
noted above, this is consistent with the testimony of
Freiling who testified that he handed his check back be-
cause Stasio refused to tell him that he was being dis-
charged.)
Stasio testified that, when Hensch and McDermott re-
turned, he gave the checks to Hensch. He states that
Hensch told the employees how much the Company
needed them, that the Company had a commitment to
meet, and that, if necessary, the Company would replace
the strikers. According to Stasio (and confirmed by
Hensch and McDermott), when Govoni claimed that he
had spoken to a backup contractor who could take over
the job and was willing to meet the employees' demands,
Hensch said that there was no such backup contractor.
Stasio states that, when Hensch began handing out
checks, Govoni again insisted that the employees be told
that they were being fired. When Hensch said that no
one was fired, Govoni handed back the checks.
Mel Hensch and Kevin McDermott basically corrobo-
rate the version of events as set forth by Stasio. They
assert that they arrived at the parking lot and waited,
with Stasio, for the men's return after speaking with Car-
ballo, Mayorial, and Lyman. They state that, when the
strikers did not show up, they left the paychecks with
Stasio and went to the Indian Point facility where they
spoke with Con Ed's waste manager, Michael O'Kel-
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ley.II According to Hensch and McDermott, O'Kelley
wanted to know if Cleanco would be able to fulfill its
contract with Con Ed. They state that they told O'Kel-
ley that they could do so, even if it meant bringing in
employees to replace the strikers. They testified that,
when they received a call that the strikers had returned
to the parking lot, they left the plant to speak to the
striking employees.
According to Hensch and McDermott, when they got
back to the parking lot, they urged the men to return to
work and told them that if they represented a majority,
the Company would negotiate with them. They also
state that, when some of the employees were taking their
paychecks, Govoni asked if they were being fired and
that he was told no. Both Hensch and McDermott assert
(and Dennis Thompson basically confirms) that Govoni
said that, if the employees were not fired, they did not
want their checks.
Regarding the tender of the checks, the evidence
herein shows that Govoni and other employees were un-
willing to accept their checks unless they were specifi-
cally told that they were being discharged. There is, in
fact, little doubt in my mind that the subject of discharge
was brought up by Govoni and the strikers, and not by
Cleanco's management. That is, based on the testimony
of Dennis Thompson, I am of the opinion that the strik-
ers believed that if they accepted the checks without
being told that they were discharged, that they would
not be eligible for unemployment benefits because it
would be concluded that they had quit their employ-
ment. In this respect, it seems to me that these employ-
ees, many of whom were residents of other States, did
not distinguish in their own minds the difference be-
tween striking and quitting and as such, insisted on being
told that they were discharged in order to be eligible for
unemployment benefits. 1 2
Subsequent to the meetings described above, the offi-
cials and supervisors of Cleanco met at Oscar's Restau-
rant where they were joined by Michael O'Kelley.
O'Kelley's concern was to ascertain from Cleanco
whether and how Cleanco intended to fulfill its contract
with Con Ed. 13 Mel Hensch assured O'Kelley that
Cleanco would meet its commitments, stating that some
of the strikers would return to work and that the Com-
pany could obtain replacements for the remainder.
According to Steven Freiling, about 7 p.m. he went to
Oscar's restaurant and encountered O'Kelley with
Hensch and "a few other people." Freiling testified that
O'Kelley stated to him that unless the men returned to
work by 9 a.m. the next morning, they would be fired
and that O'Kelley would do his best to have them black-
balled from the nuclear industry. Freiling states that, al-
'I O'Kelley, however, denied that he spoke to Hensch and McDer-
mott at the plant on August 19. There is, nevertheless, no doubt that Mel
Hensch was at the plant on the afternoon of August 19, as Michael
Skotzko, Con Ed's security administrator, recalls speaking with Hensch
at the plant on that date. There also is no doubt that O'Kelley did speak
with Hensch and McDermott later in the afternoon at Oscar's restaurant.
I" In New York State strikers are entitled to unemployment benefits
after 7 weeks.
Is It is possible that Hensch and McDermott mistakenly recalled their
conversation with O'Kelley in the restaurant as being the one they had
with him at the plant. The substance, in any event, is basically the same.
though Mel Hensch did not say anything, he did nod his
head in affirmance. According to Freiling, there were a
couple of other employees with him at the time, but he
could not recall their names.
Respondent's witnesses basically agree that O'Kelly
made the threatening remarks as alleged by Freiling.
They indicate, however, that Hensch did not agree with
O'Kelly and that, in fact, Hensch objected to O'Kelly's
remarks as being an interference with Cleanco's affairs
and being unfair to the Company and to its employees.
According to Mel Hensch, O'Kelly made his remarks in
the presence of Freiling, Smith, and Wayne Collins.1 4
With respect to the above, O'Kelley, who testified as
the General Counsel's witness, stated that he went to
Oscar's restaurant on the afternoon of August 19 because
he was very concerned as to how many people Cleanco
would have working at the site. He states that he was
told that Cleanco would have an adequate work force
for the next day. According to O'Kelley, he told Clean-
co's people that he did not care about the details of the
problem, that he just wanted to know how many em-
ployees would be there. In his direct examination, O'Kel-
ley stated that Mel Hensch said that the people who re-
fused to work would be fired, but that McDermott said
they would not be fired because they had already quit.
However, later in his testimony, O'Kelley said that he
was not sure if Mel Hensch used the word "fired" or
"replaced." O'Kelley's present recollection was that this
conversation was in the context of Cleanco's response to
his inquiries as to whether Respondent would be able to
meet its commitments and that the response was that
Cleanco could, if necessary, replace the work force.
O'Kelley also acknowledged, with some hesitation, that
he did make statements to the effect that any employees
who did not come to work by 9 a.m. on August 20
would be permanently barred from the site and that if
other companies asked him for references, he would give
the employees bad references. O'Kelley's admission of
these threats was brought out by questions asked by Re-
spondent's counsel.
During the evening of August 19, various of the Com-
pany's supervisors were sent out to find the employees
and to try to convince them to return to work. In this
regard Wayne Collins testified that Jim Hensch and Jack
Curtis visited him at his hotel where they told him that
they had just come from a meeting with O'Kelly and
McDermott. Collins states that Jack Hensch and McDer-
mott told him that if the employees were not at work by
9 a.m., they would be fired and blackballed from the nu-
clear industry. According to Collins, two newly hired
employees were present when these remarks were made.
Collins could not, however, recall their names.
Smith testified that Jim Hensch and Curtis visited him
at his hotel and that they spoke to him outside his room.
He states that the two supervisors told him that if the
employees did not return to work by 9 a.m. they would
14 There are some differences among Respondent's witnesses as to
which employees they recalled being present when O'Kelley made his re-
marks. According to McDermott and Jack Curtis, Wayne Collins and
Smith were present. According to Jim Hensch and Vincent Stasio, Freil-
ing was present.
246
CLEANCO NUCLEAR, INC.
be fired, that their security badges would be pulled, and
that they would never work in another nuclear facility.
According to Smith, Wayne Collins was present during
this conversation. It also is noted that, according to
Freiling, he was present in the hotel room when Curtis
and Jim Hensch appeared. He states, however, that the
supervisors spoke to Smith outside the room and there-
fore outside his presence.
Both Jim Hensch and Jack Curtis acknowledge that
they went to the Lindross Hotel where they state that
they spoke with Collins, Smith, and Freiling. They assert
that they merely asked them to return to work and to go
to Oscar's Restaurant to talk with Kevin McDermott.
They both denied making the threats attributed to them.
According to Collins and Smith, after the visit from
Curtis and J. Hensch, they went to Oscar's Restaurant
where McDermott said that the Company would not tol-
erate this type of employee action, that it had replace-
ments coming in, and that if the employees were not
back at work, their badges would be pulled and they
would be fired. For his part, McDermott denies making
such threats and he testified that during that evening he
spoke with several employees, including Blackburn and
Michael Collins, wherein he assured them that they
would not be discharged. With respect to Michael Col-
lins, McDermott states that Michael Collins said that he
wanted to return to work but did not want to disassoci-
ate himself from the strikers. According to McDermott,
he and Michael Collins agreed that the latter could come
back to work later on Friday. In fact, Michael Collins,
who called in sick on Friday morning, did return to
work about 11:30 a.m. after he and the others received
their checks on August 20. (This latter transaction will
be discussed below.)
There was testimony from a number of Con Ed's secu-
rity people about security badges and conversations with
Cleanco's people about the job action. s Since the facili-
ty is a nuclear power plant, all persons employed by Con
Ed's subcontractors must be issued security badges in
order to gain access to the site. When a new employee is
hired by a contractor, his name is forwarded to Con Ed
for a security check and, if passed, the employee is
issued a badge. When an employee is discharged or quits,
his badge is pulled. An employee's badge may also be
pulled if, in Con Ed's judgment, the person exhibits aber-
rant behavior. With respect to badges, the contractor has
an obligation to notify Con Ed as to when an employee
is no longer working. A badge which has been pulled
may, however, be reinstated when an employee resumes
his or her employment. As relates to this case, Con Ed's
people testified that the fact that an employee's badge
has been pulled does not necessarily translate into a con-
clusion that the employee has been discharged.
According to Michael Skotzko, Con Ed's security ad-
ministrator, he was told by his guards on the morning of
August 19 that Cleanco's employees were involved in a
job action. He testified that he then asked Jim Hensch
what was the status of Cleanco's employees and was told
by Hensch that he would get back to him. Skotzko states
that later in the day he spoke to Mel Hensch at the site
'5 These persons were called as the General Counsel's witnesses.
and told him that he needed clarification. He states that
Mel Hensch also said that he would get back to him.
According to James Fitzimmons, Con Ed's supervisor
of security, on the afternoon of August 19 a person from
Cleanco called him and said that 16 employees were in-
volved in a labor dispute and that Fitzimmons should
hold their badges. Fitzimmons, however, could not say
who this person was. He also states that he was not cer-
tain as to what the status of these employees was going
to be and that nothing definitive was being done. 16
According to Skotzko, on August 20 he reviewed the
security log and saw that 16 badges had been pulled. He
states that he then spoke to Mel Hensch telling Hensch
that he needed written clarification as to which employ-
ees no longer had a work function. According to
Skotzko, Hensch said he would get back to him and that
on Monday, August 23, Skotzko, received a list of eight
names. 7 Skotzko testified that he did not know who
sent the list, which is unsigned, and that (Skotzko added
the following notation: "Above persons permanently
barred from CD I and 2. Please post files and barred
from site book." With respect to this list, it should be
noted, however, that Skotzko testified that no one from
Cleanco ever told him that the employees had been dis-
charged. At most, Skotzko testified that he had a conver-
sation with Jim Hensch wherein the latter said that he
had "gotten rid of the problem."
Regarding the above, Mr. O'Kelley testified that on
the morning of August 20 he told Jim Hensch that he
wanted to know what was going on and that Hensch
said that some of the people had not yet decided if they
were returning to work. O'Kelley states that Hensch said
that he would furnish a list by the weekend. According
to O'Kelly he did receive a list through one of his super-
visors on Sunday, August 22, whereupon he told Jim
Hensch that the list was supposed to go to Skotzko.
O'Kelley had no recollection of any further conversation
with Jim Hensch at this time and did not recall if Jim
Hensch said that the people on the list had been fired.
With respect to the badges and the list, Cleanco's wit-
nesses assert that they never told anyone from Con Ed
that the employees had been fired or that their badges
should be pulled. It is, indeed, my opinion that all the
testimony concerning these matters is entirely more inno-
cent as to Cleanco than the General Counsel asserts. It
seems to me that, when the strike commenced, Con Ed's
security people wanted to ascertain who was not coming
to work and pressed Mel and Jim Hensch for clarifica-
tion on this on August 19. As the situation was still fluid,
Cleanco probably advised Fitzimmons on the afternoon
"L Although in the realm of conjecture, it is possible that given Skotz-
ko's questions to Mel and Jim Hensch, someone from Cleanco called Fit-
zimmons during the afternoon and reported that 16 employees were still
involved in the strike. (By about 1 p.m. at least 2 of the 20 strikers had
indicated that they were returning to work.) As it seems clear to me that,
on August 19, Cleanco had not discharged any employee, and as the
entire situation was still up in the air, it is entirely possible that Fitzim-
mons was asked to hold badges. This scenario is at least consistent with
Fitzimmons' testimony that nothing definitive was being done as of
August 19.
17 The names were R. Govoni, W. Lyman, M. Raines, J. Smith, J.
Collins, S. Freiling, B. Lofton, and D. Thompson.
-
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of August 19 that the work status of 16 employees was
still uncertain and Fitzimmons held their badges with the
understanding that no definitive action was being taken.
On August 20, Con Ed through O'Kelley continued to
press Cleanco as to whether certain of its employees
were going to return to work and O'Kelley was told that
some still had not yet made up their minds. As per
O'Kelley's request, Cleanco offered to furnish a list of
those who did not return to work by the weekend,
which was done and transmitted to Skotzko. There is, in
fact, no competent evidence to establish that during any
of the conversations between Con Ed's people and
Cleanco's people the latter group ever advised Con Ed
that any employees were going to be, or were, dis-
charged.18 It was Skotzko who wrote on the list that the
eight named employees were permanently barred. As to
why Skotzko wrote this, I do not have a satisfactory ex-
planation, unless it is conjectured that he received such
an instruction from O'Kelley who had threatened this
action on August 19 at Oscar's Restaurant.
In any event, returning to August 20, many of the
people who had called in sick on August 19 returned to
work at the start of the shift. The employees who re-
mained out and who again called in sick were Smith,
Wayne Collins, Freiling, Lyman, Lofton, Raines,
Govoni, Thompson, Parker, and Michael Collins.'9 Ac-
cording to Smith, this group went on to the site about 10
a.m. but could not get in because their badges were
pulled. He states that he then phoned Jim Hensch and
told him that the employees were at the gate and wanted
their checks. The employee witnesses for the General
Counsel generally agree that, when Jim Hensch came
down to the guard house with the checks, the employees
asked if they were being fired. They also agree that ini-
tially Hensch refused to tell them that they were fired,
but that after some give and take, and after refusing to
take their checks, Jim Hensch finally told them that they
no longer worked for the Company. At this point, ac-
cording to the employees, they took their checks and de-
parted. However, Michael Collins, who was part of this
group, also took his check, but returned to work soon
thereafter.
According to Jim Hensch, when he came down with
the checks (as per Smith's request), the employees re-
fused to take them unless he told them that they were
fired. He credibly testified that he did not tell them that
they were discharged and that they finally accepted the
checks and left.
On August 21, Wayne Collins met Jack Curtis at a
wedding. At the wedding, Jack Curtis asked Collins why
he had not come back to work. According to Collins, he
responded that he would not return under the existing
conditions. According to Curtis, Collins said that he and
i' I do not construe the remark by Jim Hensch to Skotzko that he had
"gotten rid of the problem" as being tantamount or equivalent to a state-
ment that the strikers had been fired. To me, all this means is that by
August 23, the problem had been resolved from Cleanco's point of view
inasmuch as it had been able to man the jobs through those who did not
strike, through those who returned to work and through replacements.
'9 As noted above, Michael Collins had told the Company on the pre-
vious evening that he was going to return to work but did not want to
do so until later in the day because he did not want to appear to break
ranks with the strikers.
his friends, Freiling and Smith, were going home to Ar-
kansas. Curtis also testified that he had a similar conver-
sation with Collins later in the week.
While the General Counsel argues that the above con-
versations should not be construed as constituting valid
offers of reinstatement, I do not believe that this evi-
dence was adduced by Respondent on that point. Rather,
it is evident that this evidence was offered in order to
show that neither Curtis nor Collins understood that the
latter had, in fact, been discharged. For if Collins had
been discharged on August 20 because he failed to return
to work by the alleged 9 a.m. deadline, it would seem
highly improbable that Supervisor Curtis would ask Col-
lins on two occasions over the next week why he was
not returning to work. It also seems odd that Collins, in
response to such inquiries, did not say that the reason he
was not coming back to work was because he had been
fired.2 0
Dennis Thompson testified that, about 2-1/2 weeks
after August 20, he telephoned Respondent's president,
Gene Belsole, and asked why he could not return to
work. Thompson states that Belsole told him that as Con
Ed had pulled his badge Thompson had no security
clearance. Belsole denied that he ever had any such con-
versation with Thompson. Thompson also testified that,
on one occasion after August 20, he went to the Peeks-
kill unemployment office and that the person there
phoned Cleanco on his behalf. He states that this person
told him that Cleanco said that it would not hire Thomp-
son. This last bit of evidence is, of course, unvarnished
hearsay and as such is disregarded. (The identity of this
person is unknown to me.)
Finally, Kevin McDermott and Supervisor Art
Mueller testified without contradiction that, for about a
week after August 20, Govoni kept calling in sick on his
and the other employees' behalf. (Govoni did not testify
in this proceeding.) This too tends to support Respond-
ent's contention that the people involved herein were not
discharged. For if they had been discharged, it would
make little sense for Govoni to continue to call in sick.
The General Counsel argues that Respondent's version
of the events is "too calculated, too precise, and absent
of the realism that gives rise to human events of this
nature." While it may be said that Respondent's wit-
nesses were indeed very precise and mutually corrobora-
tive, I do not view this as a detriment to its case. On the
contrary, I was favorably impressed by the demeanor of
Respondent's witnesses and by the detail with which
they gave their testimony. Recognizing that the ultimate
truth may not always be ascertainable by the trier of
fact, and given that the risk of nonpersuasion rests on the
General Counsel, it is my opinion that Respondent's wit-
nesses were credible and should be believed. Therefore,
it is concluded that Cleanco's representatives did not
threaten the striking employees with discharge, blacklist-
ing, or with being barred from Con Ed's facility. Nor do
I conclude that Mel Hensch adopted the threats made by
'0 In November 1982, Wayne Collins sent a letter to Cleanco request-
ing reinstatement. Respondent's witnesses credibly testified that the
reason Collins was not offered reinstatement at that time was because
there were no open positions for him.
248
CLEANCO NUCLEAR, INC.
Con Ed's representative Michael O'Kelly. Finally, I do
not conclude that Respondent discharged the eight em-
ployees as alleged in the complaint. While it may be that
these employees were told that they would be replaced if
they did not return to work, and thereafter interpreted
this to mean that they were being discharged, I do not
believe that Jim Hensch, by his words or conduct, dis-
charged these employees.2l
CONCLUSIONS OF LAW
1. Cleanco Nuclear, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
"1 Although it would be unlawful for a company to discharge econom-
ic strikers, it is not unlawful for a company to permanently replace them.
2. Respondent has not engaged in any conduct which
was violative of the Act.
Based on the entire record in this proceeding, I make
the following recommended"'
ORDER
It hereby is ordered that the complaint be dismissed in
its entirety.
2" 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.
249