Harmony Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 578 (N.L.R.B. 1991)

578
301 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
The judge found that Bowles, an employee who was involved in the final
set of circumstances that contributed to Fontenot’s unlawful discharge, wore
union insignia on his hardhat. This finding is not supported by the record. We
rely on the credited testimony of Fontenot that when Fontenot inserted himself
into the elevator incident involving Bowles and Supervisor Safety Inspector
Gonzales, Fontenot knew Bowles to be a fellow union organizer. In any event,
Bowles’ union activity is not in issue.
We note that the Respondent filed its answer to the complaint on September
29, 1988, not September 16, as inadvertently stated by the judge.
2 Sec. 10(b) provides, inter alia, that the Board’s power to issue a complaint
depends on the filing of an unfair labor practice charge and that no complaint
shall issue based on any unfair labor practice occurring more than 6 months
prior to the filing of the charge with the Board.
3 The charges were dismissed by the Regional Director, but the General
Counsel reversed the Regional Director with respect to the Fontenot charge
allegations and directed the Regional Director to issue complaint on those alle-
gations, as well as on the allegations of interrogations and threats for which
no specific charges had been filed. The complaint issued on September 16,
1988. 4 All dates are in 1988 unless otherwise noted.
Harmony Corporation and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths-Forgers and Helpers, AFL–CIO.
Cases 15–CA–10537, 15–CA–10537–2, 15–CA–
10557, and 15–CA–10571
January 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 14, 1989, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
1. The Respondent contends that the 8(a)(1) allega-
tions of unlawful interrogations and threats are barred
by Section 10(b) of the Act2 because no charges of
independent 8(a)(1) violations were filed by the Boiler-
makers, and the alleged 8(a)(1) violations do not have
a significant factual relationship to the filed charges.
We find merit in this argument with respect to the alle-
gations of interrogation but not to those concerning the
threats.
The only charges filed in this case alleged certain
discriminatory acts in violation of Section 8(a)(3) and
(1), and those charges were filed in March and April
1988.3 Both the alleged interrogations and the alleged
threats occurred within the 6 months prior to the filing
of those charges, so they are not barred by Section
10(b) if they are encompassed within the discrimina-
tion charges.
At the time the complaint was issued in this case,
Board precedent allowed the issuance of complaint al-
legations of independent violations of Section 8(a)(1)
simply on the basis of boilerplate ‘‘other acts’’ lan-
guage preprinted on the charge form. Thus, the threat
and interrogation allegations here could be linked to
the discrimination charges simply on the basis of that
charge form language. In Nickles Bakery of Indiana,
296 NLRB 927 (1989), however, the Board overruled
that precedent and held that 8(a)(1) allegations must
meet the same ‘‘closely related’’ test that applies to all
other categories of violations. In short, the complaint
allegation must be ‘‘factually related to the allegation
in the underlying charge.’’ Id. at 928. See also Redd-
I, Inc., 290 NLRB 1115 (1988) (setting out ‘‘closely
related’’ test).
The Respondent asserts that there is no relationship
at all between the interrogations, which took place on
or about January 28, 1988,4 when its supervisors asked
crewmembers whether they were union members, and
if so, of what union (and recording the answer), and
the charges alleging discrimination relating to the Boil-
ermakers’ campaign, which did not begin until March
7, 5 or 6 weeks later. The evidence shows that the Re-
spondent was one of five subcontractors employing
workers at an Exxon oil refinery in Louisiana. In late
January, Pipefitters Local 198 erected an area stand-
ards picket line at the refinery gate used by the Re-
spondent and the four other subcontractors. Allegedly
to determine who would honor the picket line, the Re-
spondent interrogated its employees as described
above.
We find that the there is no factual nexus between
the interrogations and the underlying charges and thus
they are not ‘‘closely related.’’ The interrogations can
not be connected to the Boilermakers’ organizing cam-
paign, out of which the charges arose. That campaign
had not yet begun; and there is no basis for finding
that the interrogations were conducted in anticipation
of that campaign. That the interrogations were directed
at the employees’ union sympathies and may have
been for a purpose other than the one the Respondent
claims, including a desire to remain nonunion, does
not bridge the gap existing between the complaint alle-
gations of interrogation and the alleged acts of dis-
crimination that constitute the subject matter of the
charges, so as to make them all ‘‘closely related.’’
Consequently, the interrogation allegations contained in
the complaint are beyond the scope of the charges, and
must be dismissed as barred by Section 10(b) of the
Act.
579HARMONY CORP.
5 We agree with the judge, for the reasons stated by him, that the asserted
safety violations were used as pretexts to reprimand and discharge Fontenot
for his union activity. In the case of the reprimand, we rely in particular on
the fact that the supervisor who allegedly photographed and observed Fontenot
in a safety violation of not using his safety belt while working high above
ground, never instructed Fontenot to ‘‘tie-on’’ at any time during the 20–25
minutes he so observed him. That failure belies that safety was the concern
that the Respondent claims in the case of Fontenot. Consequently, even if
Fontenot was in breach of safety measures we find that the breach was not
the real cause of his discharge. The case for finding that Fontenot was unlaw-
fully discharged the next day is even more compelling. The credited testimony
establishes that Fontenot was attempting to prevent an altercation between
Bowles and Gonzales (see fn. 1, supra) and that it was for that conduct that
he was cited and discharged under the rubric of a ‘‘safety infraction.’’ In these
circumstances, the Respondent’s claim that Fontenot’s conduct in intervening
in the Bowles-Gonzales incident constituted a safety infraction is without merit
and hence the Respondent has presented no legitimate basis for discharging
him. See Trover Clinic, 280 NLRB 6 fn. 6 (1986). See also Limestone Apparel
Corp., 255 NLRB 722 (1981).
6 See Nickles Bakery, supra at fn. 5 (noting that ‘‘closely related’’ test does
not require that same sections of the Act be involved) and fn. 7 (citing cases
finding adequate nexus between charged and uncharged unfair labor practices
where all are committed by employer as part of a single unlawful campaign
against a particular union).
7 Member Cracraft agrees that the facts in this case are distinguishable from
those in Paintsville. Accordingly, she does not pass on the Board’s finding in
Paintsville.
On the other hand, we find that the 8(a)(1) allega-
tions of unlawful threats and warnings are not barred
by Section 10(b). The complaint alleges that the Re-
spondent threatened, inter alia, to discharge and not to
rehire employees who signed authorization cards for
the Boilermakers. It also alleges, in effect, that the Re-
spondent warned employees that, because of their
union activities on behalf of the Boilermakers, it was
looking for safety infractions that could be used
against them. The alleged threats were made in the
course of the speech that the Respondent’s vice presi-
dent, Gauthreaux, gave to 5 different groups of em-
ployees on March 9, the day after the Respondent re-
ceived a telegram from the Boilermakers announcing
its organizational campaign and listing the names of
about 50 workers who were on the organizing com-
mittee. Included on that list is Fontenot, whose subse-
quent written reprimand and discharge are the subject
of the 8(a)(3) allegations in both charge and complaint.
The warnings were directed at employees Nunnery and
Fontenot by Supervisors Sutton and Harrington; and in
the case of Fontenot, later that same day he received
the aforementioned reprimand and the next day he was
discharged, in both instances for asserted safety viola-
tions.5 Thus, unlike the interrogations, the threats and
warnings arose from the same sequence of events as
the pending timely charges, albeit they involved dif-
ferent sections of the Act.6 Accordingly, the ‘‘closely
related’’ test of Redd-I and Nickles Bakery, supra, has
clearly been met, and these 8(a)(1) allegations are
properly before us for determination on the merits.
2. In affirming the judge’s finding that Gauthreaux’s
speeches violated Section 8(a)(1), we do not rely, as
did the judge, on Gauthreaux’s prepared text. Rather,
we rely on the actual speech he gave to the employees.
The credited testimony of employees who heard the
speeches establishes that Gauthreaux departed from his
written text. Thus employee James Bueche, who made
notes as he listened to the speech, testified that accord-
ing to his notes, Gauthreaux stated that the Respondent
was ‘‘not going to sign any agreements with anyone,
any union.’’ Both Fontenot and Nunnery credibly testi-
fied that Gauthreaux said the employees’ jobs could be
‘‘in jeopardy’’ if they signed union cards. We find,
that these statements were unlawful threats in violation
of Section 8(a)(1).
We also affirm the judge’s finding that the warnings
given by Supervisors Sutton and Harrington to
Fontenot and Nunnery violated Section 8(a)(1). In
doing so, we reject the Respondent’s contention that in
assessing the coerciveness of these supervisory warn-
ings, the doctrine enunciated in Paintsville Hospital
Co., 278 NLRB 724 (1986), is controlling.7 We find,
instead, that the circumstances here are more similar to
those found to be coercive in Central Broadcast Co.,
280 NLRB 501 (1986). In both cases, the allegedly un-
lawful questions or statements were by persons who
could be characterized as friendly supervisors whose
prounion sentiments were well-known to the employ-
ers. In Paintsville, however, the supervisors openly
supported the union and not the employer, and the
Board concluded that they would have appeared to be
acting not in behalf of management, but ‘‘in their own
interest and in accordance with their own [prounion]
sympathies, which were plainly contrary to those of
management.’’ Id. at 725. It accordingly found that the
employer was not responsible for the supervisors’ con-
duct and there was therefore no violation of Section
8(a)(1). The Board did not, however, overrule earlier
‘‘friendly supervisor’’ cases. It expressly distinguished
them as lacking similarly ‘‘extensive evidence’’ of
prounion sympathies and activities on the part of the
supervisors. Id. at 725 fn. 9.
In Central Broadcast, supra, the supervisor
(MacKinnon) was not an open campaigner for the
union, but he was sympathetic to the unionizing em-
ployees. 280 NLRB at 502–503. On at least two occa-
sions he interrogated a union activist (Peters) about the
union’s plans and he communicated to Peters’ plans
that the employer had developed to avoid unionization
by dismissing part of the unit. Id. The Board found the
interrogations coercive because they occurred in the
context of discussions of the employer’s unfair labor
practices. Id. at 503.
In the present case, the record does not show that
Supervisors Sutton and Harrington openly supported or
approved the Boilermakers’ campaign, that they were
trying to protect that campaign, or that they were act-
ing in their own interests in giving the warnings. Even
granting that, as the judge found, the warnings were
‘‘designed to be helpful’’ to Fontenot and Nunnery,
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We shall compute interest on any backpay owing Fontenot in accordance
with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987),
rather than Olympic Medical Corp., 250 NLRB 146 (1980), cited by the judge.
9 We have substituted the Board’s standard cease-and-desist language be-
cause there is no evidence in the record that the Respondent has engaged in
widespread or egregious conduct.
they would reasonably appear to be in keeping with
the Respondent’s policy of intimidating employees to
discourage them from engaging in union activity.
Thus, it was shortly after Vice President
Gauthreaux’s publicly announced threat of job loss for
union activity that Sutton and Harrington warned
Fontenot and Nunnery that their employer would use
safety violations as pretexts to discharge them. Vir-
tually contemporaneous with that warning, Fontenot
was unlawfully reprimanded and discharged on the
pretext of safety violations. In such circumstances it is
immaterial that those warnings have been made out of
friendly concern or in sympathy with the employees’
union desires. They were issued in the context of the
Respondent’s other unfair labor practices and were
clearly coercive. Central Broadcast Co., supra.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4 of the
judge’s conclusions of law:
‘‘4. By the acts and conduct set forth above in Con-
clusion of Law 3; by threatening not to sign a contract
with any union and to discharge employees if they sign
union cards; and by telling employees that the Re-
spondent was looking for pretexts to discipline and
discharge them, the Respondent herein violated Section
8(a)(1) of the Act.’’
AMENDED REMEDY
In fashioning a remedy for Fontenot’s discharge, the
judge orders his reinstatement even if the job at the
Exxon refinery has been completed. In that event, the
judge requires the Respondent to offer Fontenot em-
ployment at another of its jobsites in the Baton Rouge,
Louisiana area. The judge also provides for backpay
on an open-ended basis.8
The Respondent, in excepting to these remedial pro-
visions, contends, inter alia, that resolution of its rein-
statement and backpay obligations toward Fontenot is
best left to the compliance process. It asserts that
Fontenot was hired on a temporary basis, i.e., just for
the ‘‘turnaround job’’ at the Exxon refinery, which has
been completed; that irrespective of his discharge on
March 26, Fontenot would have been terminated on
April 10 when the work that he was hired for was es-
sentially finished.
On the state of this record, we are unable to deter-
mine the merit of the Respondent’s assertions. How-
ever, while for the present we shall not disturb the
judge’s recommended remedy, we shall permit the
issues concerning Fontenot’s reinstatement and back-
pay to be fully litigated and resolved at the compliance
stage of the proceeding. See Dean General Contrac-
tors, 285 NLRB 573 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Har-
mony Corporation, Baton Rouge, Louisiana, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Delete original paragraph 1(a), substitute the fol-
lowing for former paragraph 1(b), now 1(a), and re-
letter the remaining paragraphs.
‘‘(a) Threatening not to sign a contract with any
union and to discharge employees if they sign union
cards.’’
2. Substitute the following for new paragraph 1(d):9
‘‘(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten not to sign a contract with
any union and to discharge our employees if they sign
union cards.
WE WILL NOT tell our employees that we are look-
ing for pretexts to discipline and discharge them.
WE WILL NOT discourage membership in or activi-
ties on behalf of International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths-Forgers and
Helpers, AFL–CIO, by placing written reprimands in
personnel files of our employees or by discharging
them or otherwise discriminating against them in their
hire or tenure.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Dawson C. Fontenot full and im-
mediate reinstatement to his former job or, if that job
no longer exist, to a substantially equivalent position,
without prejudice to his seniority or to any other rights
he previously enjoyed, and WE WILL make him whole
581HARMONY CORP.
1 The principal docket entries in this case are as follows: Charge filed
against the Respondent by the International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths-Forgers and Helpers, AFL–CIO (the Union), in
Case 15–CA–10537, on March 25, 1988, and in Case 15–CA–10537–2, on
April 12, 1988; charge filed by the Union against Respondent in Case 15–CA–
10557 on April 21, 1988; charge filed by the Union against Respondent in
Case 15–CA–10571 on April 21, 1988; consolidated complaint issued by the
Regional Director for Region 15, against the Respondent on September 16,
1988; Respondent’s answer filed September 16, 1988; Respondent’s amended
answer filed on December 14, 1988; hearing held in Baton Rouge, Louisiana,
on December 19 and 20, 1988; briefs filed with me by the General Counsel
and the Respondent on or before February 10, 1989.
2 Respondent admits, and I find, that it is a Louisiana corporation and an
industrial contractor engaged in maintenance work at the Exxon refinery in
Baton Rouge, Louisiana, and at other refineries. During the 12 months pre-
ceding the issuance of the consolidated complaint, the Respondent purchased
and received at the Baton Rouge, Louisiana jobsite of the Exxon Corporation
directly from points outside the State of Louisiana goods and materials valued
in excess of $50,000. Accordingly, the Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union
is a labor organization within the meaning of Sec. 2(5) of the Act.
3 The General Counsel moved to withdraw pars. 7(b)(1) and (2) of the com-
plaint. The request is granted.
4 Errors in the transcript have been noted and corrected.
5 Specific incidents of interrogation designed to carry out the company plan
were attributed to other named supervisors. Safety man Rock Routen, asked
employees James K. Bueche and Lee Malbreaugh if they were union or non-
union. When both replied that they were union, he then asked, ‘‘What Local?’’
and they replied, ‘‘582.’’ He wrote their replies on a sheet of paper fixed to
Continued
for any loss of pay or benefits which he may have suf-
fered by reason of the discrimination found in this
case, with interest.
WE WILL remove from our personnel records the
disciplinary warning and termination notice given to
Dawson C. Fontenot in March 1988, and notify Daw-
son C. Fontenot in writing of this action.
HARMONY CORPORATION
Charlotte H. White, Esq. and Denise D. Frederick, Esq., for
the General Counsel.
William R. D’Armond, Esq. and Steve C. Thompson, Esq., of
Baton Rouge, Louisiana, for the Respondent.
W. T. Creeden, General Organizer, of Baton Rouge, Lou-
isiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Baton Rouge, Lou-
isiana, on a consolidated unfair labor practice complaint,1
issued by the Regional Director for Region 15 and amended
at the hearing, which alleges that Respondent, Harmony Cor-
poration,2 violated Section 8(a)(1) and (3) of the Act. More
particularly, the consolidated complaint alleges that the Re-
spondent threatened employees with discharge if they signed
union cards, threatened not to rehire employees if they
signed union cards,3 announced that it was not going to hire
any more union adherents and would be changing its hiring
procedures in order to screen out union adherents, announced
that it would not rehire employees if they signed union cards,
told employees that the Respondent was looking for pretexts
to fire union members, interrogated employees concerning
union activities, issued an employee a written warning be-
cause of his union activities, and discharged Dawson C.
Fontenot because of his union activities. The Respondent de-
nies these allegations and asserts that Fontenot was dis-
charged because of safety violations on his part. On these
contentions the issues here were framed.4
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
Since 1975, the Respondent has been a large industrial
contractor located in Baton Rouge, Louisiana. It specializes
both in ongoing maintenance work at oil refineries and in
performing large-scale overhauling at refineries. Respondent
also performs other aspects of industrial construction and has
contracts outside the Baton Rouge area as well as in that lo-
cality. It has always operated on an open shop or nonunion
basis.
For some time the Respondent has performed a mainte-
nance contract at the Exxon refinery at Baton Rouge and em-
ploys about 100 men on an ongoing basis to fulfill that con-
tract. From time to time it has also acquired short-term
‘‘turnaround’’ contracts for Exxon, in which it performs de-
tailed repairs and overhauling of large cracking towers which
are temporarily shut down for this purpose. In the spring of
1988, Respondent performed repairs on the PHLA No. 1, or
power former, and the PCLA No. 2, or catcracker. These
jobs were scheduled to last an estimated 10 weeks. At peak
Respondent employed about 500 craftsmen on the two
projects, in addition to its regular maintenance crew. While
the work was in progress, employees worked 10 hours a day,
6 days a week. At the end of the project, most were laid off
although some may have been transferred to other jobsites,
since the Respondent follows a practice of transferring con-
struction employees from job to job whenever its employ-
ment situation permits. Hiring for the Exxon job began in
January. Work started to decline in April and May.
In late January 1988, Pipefitters Local 198 erected a picket
line at the south gate of the refinery. This is the gate which
was used by contractors and their employees. The picketing
was directed at the Respondent and at four other contractors
whom Exxon was using on the turnaround projects, accusing
them of paying substandard wages on this project. On Janu-
ary 28, Respondent instructed its foreman to ask each em-
ployee, most of who were employed in the boilermaker craft,
whether they were members of any labor organization. Mike
Forbes, the jobsite planner, told Foreman Charles Greaud
that the timekeeper had told him that the Company needed
to know who was in the Union and who was not, so Greaud
went around asking each of his crewmembers if they were
paid up union members and which local they belonged to.
He noted their responses on their timecards and turned the
cards into Forbes. Other foremen also asked their crew mem-
bers the same questions, noted their responses, and turned in
the information to the Company. They also asked employees
what, if any local they belonged to and recorded those re-
sponses as well. About 40 percent of the Respondent’s em-
ployees indicated that they were members of Boilermakers
union, though not necessarily of the Baton Rouge Local. Re-
spondent admits that this questioning took place but states
that it needed the information to determine whether or not
its employees would observe the pipefitters picket line and
thus require it to seek replacements to man the job.5
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a clipboard. Routen did not tell either employee why he wanted the informa-
tion. Foreman Richard Sutter asked Nunnery if he was a union member and
asked other employees the same question within Nunnery’s hearing. Sutter
wrote down the replies on a sheet of paper he was carrying around. He did
not explain the reason for his inquiry.
Discriminatee Dawson C. Fontenot was hired by the Re-
spondent at the refinery job on February 2 as a welder. He
was laid off for a few days early in February and then re-
hired. Early in March the Boilermakers began an organizing
drive among the Respondent’s employees at the Exxon refin-
ery. On March 7, it dispatched a telegram to the company
president and the project manager, informing both of them
of this effort and listing the names of 45 employees who
were members of the organization committee. Fontenot’s
name was on this list.
On March 9, Felix ‘‘Phil’’ Gauthreaux, Respondent’s vice
president in charge of maintenance operations, came to the
jobsite and addressed all of the Respondent’s employees in
a large tent which the Respondent was using as a lunchroom.
Because of the size of the work complement, Gauthreaux de-
livered his speech five different times. While he attempted
to adhere a prepared text, conditions made it difficult for him
to do so, since he was holding a megaphone in one hand and
the speech in the other. He was often interrupted by catcalls
and an assortment of rude or profane remarks.
Employee James K. Beuche testified credibly that
Gauthreaux said, during the speech which he heard, that the
Company was open shop and prosperous and was not going
to sign a contract with anyone. Gauthreaux was reported as
saying that he knew union cards were being distributed and
warned employees to be sure that they knew what they were
signing before they signed anything. Fontenot’s credited tes-
timony concerning the meeting he attended is in a similar
vein. According to Fontenot, Gauthreaux stated that Har-
mony was the sister company of another unionized construc-
tion company which had suffered a huge loss in work. He
also told employees to think long and hard about signing
union cards because their jobs could be in jeopardy adding
that Harmony was nonunion and was going to stay nonunion.
Employee Gary Nunnery testified credibly that, at the meet-
ing he attended, Gauthreaux said pretty much the same
things that Beuche and Fontenot had reported—the Company
had been in business for 12 years, it never would become
a union company, it did not want anything to do with the
Union, that Nichols Construction Company, its sister com-
pany, suffered a drastic decline in business due to the Union,
and that employees should be careful about signing cards be-
cause they might be placing their jobs in jeopardy.
The text of the speech which Gauthreaux used as an out-
line is in the record. Included in the text of the speech are
the following messages:
Harmony is a nonunion, open-shop company. We
have always been open shop, and we intend to stay that
way. . . . It is not a matter of just personal preference.
It is the very serious matter of protecting the security
of our business and the security of jobs— your job and
mine.
Our company, Harmony, has a sister company, Nich-
ols Construction. It was one of the biggest construction
companies in the South. It had thousands of employees.
It also had unions. At one time over 2,500 union mem-
bers had jobs at Nichols. Today there are only 200.
. . . Nichols found itself helpless to compete because
of high-cost, restrictive work practices imposed by the
union. It could not obtain work because it could not bid
competitively.
Nichols was a big pipe fabricator as well as a major
contractor. Repeatedly it could not deliver on time be-
cause of labor disputes and union strikes. . . . Nichols
lost its pipe business and its construction business.
Today, it is reduced almost completely to renting equip-
ment. Over 90 percent of their unionized work force
lost their jobs. . . . Our customers use our services be-
cause we guarantee high quality, at competitive prices,
and we deliver on time, without interruption. If we
can’t guarantee those things, we won’t be in business
long. So your job and mine depend on that, and we are
determined to keep the danger of union strikes or other
trouble out of here.
Our advice is: Don’t sign a union card or anything
else for a union, no matter who tries to talk you into
it. Your signature can bind you—it can cost you plenty.
During the lunchbreak on the same day, Fontenot stood up
in the lunchroom and delivered a rebuttal speech before
about 100–125 employees including several supervisors.
After getting their attention, Fontenot told them not to be-
lieve Phil Gauthreaux because he was trying to intimidate
everyone. Fontenot accused Gauthreaux of making several il-
legal statements and commented further that it was funny
that employees had never seen him at the jobsite until the
union organizing drive began. He then told employees that
if any of them felt intimidated, they should see him and he
would see if anything could be done about it.
Various members of the organizing committee began to
solicit signatures on authorization cards at the jobsite. They
wore distinctive ‘‘Boilermaker’’ badges on their clothing and
gummed labels which were affixed to hardhats. Fontenot was
among those who participated in these activities. Respond-
ent’s supervisors acknowledge that Fontenot was among the
leaders of the organizing drive. He also attracted the atten-
tion of Exxon’s supervisors who were overseeing the work
of the contractors on the turnarounds.
The employees of contractors were required to park in a
designated lot about a mile or so from the turnarounds. Re-
spondent and other contractors used schoolbuses to transport
their employees from the parking lot to the actual jobsites.
It had been the practice of the Respondent to permit day-shift
employees to quit work at 4:50 p.m., clean up, climb aboard
buses at 4:55 p.m., and arrive at the parking lot at 5 p.m.
The trip was on company time. On or about March 22, Wil-
liam Storm, Respondent’s day-shift superintendent on the
PCLA-2 turnaround, held a safety meeting at which he told
employees that their productivity was down so the Company
would be changing bus schedules. From that point forward,
employees would be expected to work until 5 p.m. and buses
would not leave for the parking lot until 5:10 p.m. On the
following day Fontenot and fellow union activist Nunnery
saw Storm and Project Manager Bobby Wilson parked along
the road in a pickup. He asked if employees could have bet-
ter working conditions and a contract. Both supervisors just
laughed and said that there was nothing they could do about
it. Fontenot then complained about the change in bus sched-
583HARMONY CORP.
6 Reed was one of several employees in the Exxon or Harmony management
who made significant and damaging remarks or played significant roles in the
unfolding of this litigation but who were not summoned to testify. Others in-
clude Storm, Sutton, Wilson, Kimble, Harrington, and Routen. Since the re-
marks attributed to these individuals stand undenied in the record, I conclude
that they were made as reported by General Counsel’s witnesses.
7 The pictures which Hargroder took on this occasion were introduced into
evidence. Since the individual depicted in the photos was wearing a welder’s
mask, it is impossible to identify the subject of the pictures from the photos
themselves. However, I accept Hargroder’s testimony that it was Fontenot
whom he was photographing and conclude that the pictures in evidence are
those of Fontenot. Fontenot acknowledged that the individual portrayed in the
photos did not have his safety belt attached to a beam but had it thrown over
his shoulder.
ules. Storm replied that this was Exxon’s policy. Fontenot
then observed that it was peculiar that, whenever there was
a change in working conditions, the contractor always
blamed the customer. He went on to ask the two supervisors
whether they sat around in their trucks at the end of the day
after they knocked off work. Both replied that they did not,
and to their reply, Fontenot simply asked why the Company
expected employees to do so. They had no reply.
The following day, at another safety meeting, Fontenot
asked Storm in the presence of a large number of employees
whether it would be possible to return the bus schedules to
previous times. Storm said that it would not be possible.
During the same meeting, Fontenot also spoke up and asked
Storm if it would be possible to visit the control room and
inspect the list of hazardous substances on the jobsite which
had to be maintained at that location. Storm told Fontenot
that he would speak to him later on this point.
After the meeting Fontenot repeated his request to Storm
in the presence of Nunnery and several other employees. He
noted that a sulphur spill had occurred a couple of days be-
fore and it had also come to his attention that people were
walking around the jobsite with asbestosis. He added that,
since the bus schedules had been changed, he was going to
walk from the jobsite to the parking lot and he wanted to
know what kind of chemical hazards he might encounter if
he did so. Storm told Fontenot that there would be no prob-
lem in letting him see the hazardous substance list and con-
tacted the Exxon coordinator to arrange for the inspection.
The Exxon coordinator picked up Fontenot and Nunnery and
took them to the control room. Once inside the control room,
Fontenot asked permission from an Exxon supervisor, J. B.
Cline, to see the list. Cline said he was not sure if they had
the legal right to be in the control room and told them that
he was going to contact Exxon’s attorneys to check out the
matter. Shortly thereafter, Respondent’s supervisor Richard
Sutton and Exxon Coordinator Richard Reed arrived. They
became upset. They told Nunnery and Fontenot that they had
not gone through proper channels to get permission to visit
the control room. Fontenot told Sutton that Storm had
okayed the visit and informed Reed that his superior, Cline,
had also approved. Reed then told Nunnery and Fontenot that
they had better ‘‘cover their asses.’’ Management was going
to come after them now because they wanted them ‘‘real
bad.’’6
On another occasion at about this same point in time,
Foreman Leron Harrington told Nunnery that he had better
‘‘cover his ass’’ because they wanted to fire Nunnery for a
safety violation. Nunnery replied that this was obvious be-
cause they had people hiding on the catcracker and had safe-
ty people bird dogging them everywhere. Two or three days
later Sutton repeated the same warning to Nunnery.
On Friday, March 25, before the beginning of the morning
shift, Sutton, who was Fontenot’s immediate supervisor,
warned Fontenot to watch himself because ‘‘they were com-
ing after you on a safety violation.’’ He added that he was
assigning Fontenot to a job requiring a safety belt. On certain
types of scaffoldings, employees are required to wear a safe-
ty belt. It is a harness or halter attached to a lanyard, a rope
with a clasp at the end which is supposed to be tied to a
wire or beam while the employee is working in order to keep
the employee from falling to the ground. Fontenot was wear-
ing a safety belt as he went to work. One of the major issues
in this case involved whether or not it was ‘‘tied off’’ while
he was working, i.e., attached to a wire or beam which is
part of the permanent structure.
It is undisputed that the standard practice of the Respond-
ent, at least on the jobsite, was to assign employees to work
in groups of two or more. The reason underlying this prac-
tice was to make another employee immediately available to
assist his partner in the event of a mishap. On the morning
in question, Fontenot was assigned to work alone on a scaf-
folding in the middle of the 6th floor of a 20th-floor story
cracking tower. Normally he worked with Nunnery. How-
ever, on this occasion, after Nunnery had been working on
the catcracker for about 20 minutes, his foreman, Harrington,
instructed him to get a truck, ride out to a nearby field, and
wait for a cherry picker to pick him up. Nunnery did so and
spent the whole morning waiting in the field for the cherry
picker. He simply sat in the truck alone without performing
any work. This was the only occasion on which something
like this had occurred during Nunnery’s working experience
with the Respondent.
Exxon employs a relief supervisor named Anthony
Hargroder who, in the spring of 1988, was assigned to photo-
graph the progress of the turnaround repairs. The purpose of
the assignment was to provide Exxon’s jobsite supervisors
with an album of their activities which might be exhibited
to upper management who visit the refinery from time to
time. On the morning of Friday, March 25, Richard Reed,
the Exxon coordinator who was responsible for the Respond-
ent’s crew on which Fontenot was working, asked Hargroder
to position himself on the catcracker in the vicinity of
Fontenot’s work station and to watch Fontenot to see if the
latter was starting to work without tying off the lanyard on
his safety belt. Hargroder told Reed he would stay with
Fontenot as long as he could before he had to go to other
parts of the refinery to continue his regular assignment of
photographing turnaround repair activities. Hargroder ob-
served Fontenot for about 20 or 25 minutes. For the first 15
minutes or so of his observation, Hargroder stayed on the
eighth floor of the cracking tower, two floors above
Fontenot’s work station but within sight of where Fontenot
was working. He then moved to the sixth floor, within 30
feet from where Fontenot was welding. He photographed
Fontenot from both locations.7 After snapping Fontenot in a
position of working without a safety lanyard tied to a safety
line or I-beam. Hargroder left the area and radioed Reed.
They met in the office of Darrell Clark, Exxon’s principal
coordinator of the Harmony operation. Hargroder told Reed
and Clark that he had pictures of Fontenot without his safety
harness hooked up and said that he would have the pictures
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The pictures themselves were never shown to Fontenot. In fact, they dis-
appeared during the investigation of an unfair labor practice charge which the
Union had unsuccessfully filed against Exxon and reappeared just days before
the hearing in this case. Apparently the negatives from which the prints had
been prepared also disappeared.
developed by early afternoon. He did so and turned the pic-
tures over to Clark after they were returned form the photo
developing company.
When the pictures arrived, Clark showed them to Harmony
Project Manager Wilson but kept the pictures.8 Clark spoke
with Storm and told Storm to handle this problem. He did
not tell Storm to discharge Fontenot. According to Fontenot’s
uncontradicted testimony, Storm told him at lunchtime that
the Company was going to have to give him a written rep-
rimand because Exxon had taken a picture of him working
without having his safety belt tied off. Fontenot said that he
did not believe it and insisted that his safety belt had been
tied off. Fontenot demanded to know why some one had not
come up to him to warn him on the spot that his safety belt
was not tied off if, in fact, such was the case. Storm replied
that no one had done so because, by the time that anyone
had gotten near him, his belt had been tied on. Fontenot
asked to see the pictures but Storm refused. He asked Storm
if he was going to take an Exxon man’s word against that
of one of Harmony’s own employees. Storm replied that he
was and told Fontenot to come to his office after lunch to
pick up the written reprimand. The warning read: ‘‘On the
morning of 3/25/88, Fontenot was observed not having his
safety belt tied off in a work area requiring the same.’’ At
the bottom of the sheet is a space for the employee’s com-
ment. In that section, Fontenot wrote: ‘‘To the best of my
knowledge I was wearing my safety belt, and it was hooked
up. I had been warned by my foreman and supervisor that
Harmony and Exxon was keeping a close eye on me to try
to catch me on some safety violations to terminate me. I feel
it is because of my efforts to organize the job, that is the
reason for this.’’ Storm also told Fontenot that he would be
discharged in the event of any further violations. After sign-
ing the document, Fontenot went back to work.
Early in the morning shift of Saturday, March 26,
Fontenot was approached on the job by employee James
Hancock, a union supporter, who complained that he had
been intimidated by two safety supervisors. He told Fontenot
that he was being hassled because he was wearing a union
badge. The supervisors in question were J. C. Ashford, an
Exxon safety man, and Mario Gonzales, the safety man for
Sunbelt, another subcontractor on the turnaround job. Ac-
cording to Hancock, he was carrying his earplugs in his
pocket and was berated by both safety inspectors for not
wearing them. When Fontenot saw Ashford and Gonzales a
few minutes later, he approached them and complained. He
asked what was going on concerning Hancock, and told them
that he had received a report that he was being intimidated
because he was wearing a union badge. He asked their
names. Gonzales became angry, told Fontenot his name,
asked sarcastically if Fontenot knew how to spell it and
whether he also wanted Gonzales’ social security number.
Ashford and Gonzales denied that they were harassing union
supporters and claimed that they were just trying to correct
safety violations when they observed them. Ashford then told
Fontenot that he was going to write a reprimand concerning
Hancock’s violation. Ashford then asked Fontenot his name
and Fontenot gave it.
A few minutes later, Fontenot was standing near the eleva-
tor and observed an incident involving Gary Bowles, an em-
ployee of UMC. UMC was another construction subcon-
tractor at the Exxon refinery and Bowles was a member of
the organizing committee that was trying to organize UMC.
Bowles was trying to get on a crowded elevator and the op-
erator tried to close the cage door and prevent him from
doing so. I credit Fontenot’s testimony that Gonzales arrived
at the scene and grabbed Bowles by the arm to prevent
Bowles from blocking the closing of the elevator door.
Bowles became angry and Fontenot grabbed him to prevent
him from hitting Gonzales. He told Bowles not to pay any
attention to Gonzales because jobs like his were a dime a
dozen. He did not urge or counsel Bowles to commit a safety
violation or to disregard safety regulations. He was simply
trying to stop a fight by preventing Bowles from hitting
Gonzales. Gonzales became angry and radioed Ashford. He
told Ashford that, if Bowles and Fontenot had been his em-
ployees (i.e., Sunbelt’s employees), this incident would not
have happened. I also credit Fontenot’s denial that he had
used any obscene language toward Gonzales. The incident
was first reported to Exxon Coordinator Clark, who took up
the matter with Storm. Storm called Phil Gauthreaux at
Gauthreaux’s house to discuss what ought to be done.
Gauthreaux admits that this incident received special treat-
ment because of Fontenot’s position as a union organizer but
claims that the special treatment was benign treatment and
amounted to ‘‘giving Fontenot the benefit of the doubt.’’
Gauthreaux phoned his lawyer and then called Storm, telling
Storm to handle the incident as if Fontenot were not a known
union adherent. Storm discharged Fontenot, placing on his
termination notice that the reason for the termination was
‘‘safety violation.’’
II. ANALYSIS AND CONCLUSIONS
A. The Status of Certain Management Employees of
Exxon and Other Contractors vis-a-vis the Respondent
Respondent was one of about five contractors or sub-
contractors whom Exxon had engaged to repair cracking
towers at its Baton Rouge refinery. Exxon closely supervised
the job through coordinators such as Darrell Clark, who was
the overall coordinator of the project, and Richard Reed, the
Exxon coordinator whose special responsibility it was to see
that OSHA, Exxon, and employer safety rules and regula-
tions were observed. Gonzales had a similar responsibility
for Sunbelt and Pat Fuller was one of two safety inspectors
employed on the project by the Respondent.
Apparently Exxon was dissatisfied with the safety record
of its contractors and subcontractors on this job and felt that
additional steps needed to be taken in order to enforce exist-
ing rules and regulations. According to Respondent’s safety
inspector Fuller, the Respondent had only two men on the
job to monitor the activities of 600 Harmony employees. He
felt that this was an inadequate number. Late in March, at
the instance of Exxon, both Exxon and its contractors and
subcontractors formed a safety coalition. There is an indica-
tion in the record that the principal elements of this coalition
were reduced to writing, although no document to this effect
was introduced. According to their understandings, the basic
585HARMONY CORP.
terms of which are undisputed, Exxon and all of the other
employers on the job agreed that all safety inspectors and
other supervisors of all employees would be responsible for
overseeing the safety performance of all employees on the
jobsite, regardless of employer. As Fuller put it, ‘‘we would
all collate [sic] ourselves and work together.’’ All safety di-
rectors and other supervisors of every employer on the job-
site were mutually empowered to give orders to the employ-
ees of any other employer respecting any safety matters they
might observe and to step in and stop a safety violation
being committed by any employee on the job, regardless of
whom his employer might be. On the morning of March 26,
the same day on which Fontenot was discharged, the ele-
ments of this agreement were announced to Respondent’s
employees at a safety meeting, although the actual agreement
had been concluded a few days earlier. Respondent’s em-
ployees were told to obey the safety instructions of any safe-
ty inspector, regardless of whom the inspector might work
for.
Having been invested by the Respondent with the power
to direct Respondent’s employees on the job and to issue
verbal warnings for safety infractions, including infractions
of rules and regulations imposed by employers other than the
Respondent, the safety inspectors of all employers, including
those who supervised inspectors, became supervisors of the
Respondent in this case within the meaning of Section 2(11)
of the Act. This number included Darrell Clark, Richard
Reed, Mario Gonzales, J. C. Ashford, and Anthony
Hargroder. Accordingly, the Respondent is responsible for
the acts and statement of these individuals.
B. Independent Violations of Section 8(a)(1) of the Act
In January 1988, shortly after the pipefitters had estab-
lished a picket line at the construction workers gate, the Re-
spondent directed its foreman to survey all of the members
of their respective crews and ask each crewmember if he was
a union member. They were asked to find out to which local,
if any, the union adherents belonged. I discredit Phil
Gauthreaux’s testimony to the effect that foremen were not
directed to inquire as to union local membership. Foremen
did ask this question and at least one noted on timecards spe-
cific locals, if any, to which his crewmembers belonged. One
supervisor asked his crewmembers if they were paid-up
union members. This was a systematic inquiry into union
membership. There is no evidence that any employee was in-
formed about the reason for the questioning or that any em-
ployee was given any assurance that his replies would not be
held against him. Nor was the interrogation conducted by se-
cret ballot. Thus, the methodology employed in this polling
violated several basic requirements laid down by the Board
in Struksnes Construction Co., 165 NLRB 1062 (1967).
Moreover, the reason that polling was authorized, under stat-
ed safeguards, in Struksnes, was not present here, since the
boilermakers had made no demand for recognition on this
Respondent, and the Respondent had not been placed in any
position where it had to respond to such a demand. Nor did
the question posed to Respondent’s employees relate to the
preferred excuse advanced by the Respondent to defend ac-
tion, namely, the need to know who among its employees
were intending to go on strike so it could secure replace-
ments. The questions asked were not directed to strike activ-
ity but to union membership, thus indicating a totally dif-
ferent concern, namely, that a majority of the Respondent’s
Exxon job employees might became unionized. Accordingly,
by systematically interrogating its employees concerning
their union membership and activities, the Respondent vio-
lated Section 8(a)(1) of the Act. The same finding pertains
to specific instances of interrogations alleged in the consoli-
dated complaint relating to Supervisors ‘‘Rock’’ Routen,
Richard Sutton, and Charles Greaud.
On March 9, in response to a union telegram notifying the
Respondent that it was organizing its employees at the Exxon
refinery job, Respondent’s vice president Felix ‘‘Phil’’
Gauthreaux visited the jobsite and, on five different occa-
sions throughout that day, delivered the Company’s reply. It
was a free-swinging denunciation of trade unionism and an
assertion of the Respondent’s adamant determination to re-
main nonunion. The consolidated complaint alleges that
Gauthreaux went beyond the bounds of fair comment in his
speeches by threatening employees with discharge if they
signed union cards and by threatening employees that they
would not be rehired if they signed cards. In this case, the
text of Gauthreaux’s speech supplied by the Respondent pre-
sents a more convincing case of a violation than the recollec-
tions of employees who were in the audience.
According to Gauthreaux’s written speech, Nichols, its sis-
ter company, went out of business (or almost out of busi-
ness) because of unions, and union men lost their jobs in
large numbers. Gauthreaux told his listeners that Harmony
was nonunion, it does not intend to suffer the same fate as
Nichols, and because of this resolve, it would stay nonunion
at any cost. Employees’ jobs, and those of management as
well, depended on the Respondent’s ability to ward off the
Union which was trying to organize it. Toward that end,
Gauthreaux told employees not to sign union cards, warning
them that they would lose their jobs and there would be no
jobs with Respondent in the future to which they could be
hired. These statements were not predictions of consequences
which might be brought on by impersonal market forces but
were statements of the consequences which would nec-
essarily follow from Respondent’s own intention to operate
as a nonunion company. Any lingering doubt as to
Gauthreaux’s meaning can be resolved by other statements
made by his foreman which were even blunter and left even
less room for argument. By making these remarks on March
9 to five different groups of employees, Gauthreaux was
threatening them both with discharge if they signed up for
the Union and with the Company’s determination not to hire
them thereafter on other jobs. Such threats constitute a viola-
tion of Section 8(a)(1) of the Act. In mid-March, Foreman
J. C. Kimble told members of his crew during a lunchbreak
that, if they signed union cards, he could no longer hire them
on any of the Respondent’s future jobs. Kimble also told two
other foremen that the reason for a change in the Respond-
ent’s hiring procedure was to screen additional employees so
that no more union members would be hired because an or-
ganizing drive was then underway. Since these remarks were
made to other foremen and not to employees, they do not
constitute a violation of Section 8(a)(1) of the Act. However,
the record is undisputed that these remarks were in fact made
and, as such, constitute evidence of animus on the part of the
employer.
Just before Fontenot was fired, Sutton and Harrington told
both him and Nunnery to be careful because either the Com-
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany or Exxon, or both, were trying to find safety infractions
that they could use against them because of their union ac-
tivities. While both warnings were designed to be helpful,
they were also intimidating and constituted violations of Sec-
tion 8(a)(1) of the Act. I reject Respondent’s explanation that
these supervisors were merely trying to enforce safety regu-
lations. As of that moment Fontenot stood in no different
shoes than any other member of his crew vis-a-vis safety in-
fractions. He was being singled out for special treatment be-
cause of his union activities and his supervisors knew it. It
is inconsistent for the Respondent to argue that these super-
visors were trying to enforce management rules when they
made the statements attributed to them but such statements
were not coercive because these supervisors were also union
members and were just trying to look out for their buddies.
C. The Written Warning Given to Fontenot of a
Safety Violation
The warning which Fontenot received on March 25 for a
‘‘safety violation,’’ as well as the termination which he re-
ceived the following day, have to be viewed and evaluated
in light of the intense antiunion animus which characterized
the Respondent’s reaction to the news that its refinery job
employees were being organized. Fontenot was one of the
leaders of the organizing effort. He had caught the eye not
only of the Respondent but of Exxon as well by his insist-
ence that he be allowed to enter the Exxon control room to
inspect the list of dangerous and contaminating substances
present on the jobsite, a list which Exxon is required by law
to keep. It is clear that Fontenot had incurred the displeasure
of Exxon as well as that of his own employer by his union
activities.
There can be no doubt that both Exxon and the Respond-
ent were out to pin a safety violation on Fontenot. He was
specifically warned that such an effort would take place and
it did, within hours after one of the warnings had been given.
To accomplish this task, Fontenot was placed on the job to
work alone. Working solo on a job of this magnitude is
something which rarely occurs, for reasons of safety as well
as for any other considerations. On the morning of March 25,
Nunnery, Fontenot’s regular working partner, was sent from
the catcracker to a vacant field and told to sit in his truck
and wait. He did so for an entire morning and performed no
work at all for a period of several hours, thereby leaving
Fontenot alone on the sixth floor to be photographed while
working without the possibility that someone else might also
be pictured in the same photo and thus be subject to the
same to the discipline.
Exxon transferred its regular photographer from his normal
duties and assigned him to get a picture of Fontenot violating
a safety rule. Reed’s explicit request to Hargroder on the
morning of March 25 was to stay with Fontenot long enough
to get a shot of the latter working without his safety belt tied
off. Hargroder watched Fontenot for about 25 minutes from
two different locations. This was long enough to catch
Fontenot in the act. When he accomplished his mission,
Hargroder took his camera and left the area without either
speaking to Fontenot or letting Fontenot know that he had
been in the vicinity.
Other supervisors testified that it was standard practice to
tell an employee immediately that he was in violation of a
safety rule whenever a violation was observed. Fuller testi-
fied that it was important that on-the-spot warnings be given,
especially in situations that involved nonuse of safety equip-
ment at high levels, in order to prevent an accident from
happening. Hargroder did not engage in such routine cau-
tioning on the occasion in question, and he had no expla-
nation for his failure to do so. It was clear from his behavior,
as well as from the activities of others in supervision at
Exxon and Harmony, that they were not interested in safety
or accident prevention on this occasion but in making a case
against Fontenot. The Respondent’s motive has already been
discussed. It is equally clear that Fontenot’s union activities
made him persona non grata in the eyes of Exxon as well
as his own employer and that Exxon was working hand in
glove with the Respondent to pin something on an employee
who was agitating on the job. Since this motivation prompted
their joint efforts from the outset, it is quite immaterial
whether or not they actually caught Fontenot performing an
unsafe act. Their efforts to catch him were tainted from the
beginning and whatever followed from their illegal plan was
also tainted, even though it might be perfectly justified under
some other set of circumstances. By giving Dawson C.
Fontenot a reprimand for a safety violation on March 25 in
reprisal for his union activities, the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
D. The Discharge of Dawson C. Fontenot
On the day following the issuance of a written reprimand
for a safety violation, Fontenot was discharged for what was
also characterized in his termination slip as a ‘‘safety viola-
tion.’’ The safety violations in question were actually two
confrontations with Mario Gonzales, the safety director for
Sunbelt. Sunbelt was another maintenance contractor, and
Gonzales, like all safety directors, had just been given au-
thority over safety infractions committed by employees on
the job other than just those who were employed by his own
company.
Early in the morning shift, Fontenot had confronted
Gonzales and Exxon’s safety inspector, J. C. Ashford, to
complain that Gonzales had been hassling ‘‘my man.’’
Gonzales asked him what he meant by ‘‘his man’’ and
Fontenot identified him as the man with the union sticker on
his hat. Gonzales attributed the disciplinary warning on that
occasion to Ashford, stating the man in question had not
been wearing earplugs and he should have been doing so.
Fontenot demanded Gonzales’ name and threatened to report
Gonzales to his attorney. Gonzales gave him his name and
sarcastically asked Fontenot if he did not also want his social
security number. Gonzales admitted that he had lost his tem-
per during this confrontation.
The event which triggered Fontenot’s discharge came a
few minutes later when Fontenot again confronted Gonzales
and protested his action in harassing another union supporter
for an asserted safety violation. FMC employee Bowles had
tried to get on a crowded elevator and Gonzales stopped him.
Like the employee involved in the earlier incident, Bowles
was wearing a union sticker on his helmet. The details of
this event need not be repeated; except to say that Fontenot
was not engaged in telling another employee that he did not
have to obey safety regulation. It is not significant whether
Gonzales was right or wrong in his assertion that Bowles
was guilty of a safety violation, although it is interesting to
note that Bowles was not discharged as a result of this inci-
587HARMONY CORP.
9 In pretrial motion, the Respondent moved to dismiss the consolidated com-
plaint on the basis that it exceeded the scope of the unfair labor practice
charges which had been filed. In an order dated December 15, 1988, the Asso-
ciate Chief Administrative Law Judge in charge of the Atlanta office dismissed
this motion. I adhere to his ruling.
10 The fact that the Exxon refinery turnaround job may have been completed
does not absolve the Respondent from its duty to offer reinstatement to
Fontenot. Not only does the Respondent have a large complement of perma-
nent employees in its maintenance crew at this jobsite but it also has other
jobs in the Baton Rouge area on which it employs large numbers of employ-
ees. The record is quite clear that the Respondent has a practice of transferring
employees from jobsite to jobsite. This practice should be followed in regard
to Fontenot.
11 F. W. Woolworth Co., 90 NLRB 289 (1950).
12 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 objec-
tions to them shall be deemed waived for all purposes.
dent and that Gonzales was only mildly interested in what
became of the Bowles’ writeup. Fontenot was protesting to
Gonzales an alleged effort on Gonzales’ part to single out
union supporters for enforcement of safety rules and dis-
cipline and Gonzales knew it. Gonzales admitted on the
stand that Fontenot himself was not guilty of any safety in-
fraction. Gonzales became angry at Fontenot for the second
time within the space of half an hour because, in his view,
Fontenot had challenged his authority as a safety director. As
Gonzales put it:
I don’t know if I actually really ever told him
[Storm] what to [do] with this man [Fontenot]. I mean
it is almost a basic safety—I mean, a basic industry
practice the safety officer needs the respect of the peo-
ple. I mean, it really wasn’t a question of what should
be done. It was just how it should be done. In any
line—contractor, any construction field—if you want to
go heads up with the safety officer you are going to
lose. Right or wrong you are going to lose to the safety
officer. You must keep control of the job, because
when you lose control of the job we have all types of
problems and all types of incidents.
Fontenot had a right under the Act to protest to the safety
officer that the latter was singling out union supporters for
harassment for safety violations. It is immaterial whether the
protest did or did not have merit. There is no credible evi-
dence that Fontenot’s conduct during the Bowles incident,
short lived as it was, was so outrageous or defamatory that
it should be removed from the normal ambit of statutory pro-
tection. With regard to language used during this incident,
Gonzales observed, with reference to Bowles that, ‘‘I mean,
four letter—unfortunately, that is—it may not be the best
thing, but it is definitely a construction trait—is profanity.’’
Fontenot did not go that far.
The statement in Fontenot’s termination slip to the effect
that he was discharged for a safety violation is false. The Re-
spondent is not at liberty to define safety violation so broadly
that it infringes on statutory rights. The March 26 discharge
was the final step in a process which the Respondent and
Exxon had been implementing for a period of time in order
to remove a union activist from the refinery jobsite. By dis-
charging Fontenot because he had engaged in union activi-
ties, the Respondent violated Section 8(a)(1) and (3) of the
Act. I so find and conclude.9
On the foregoing findings of fact and on the entire record
herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Harmony Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmith-Forgers and Helpers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By placing a written warning in his personnel file in re-
prisal for his union activities and by discharging Dawson C.
Fontenot because of his union activities, the Respondent
herein violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclusion
of Law 3; by threatening to discharge employees and to re-
frain from rehiring them if they signed union cards; by tell-
ing employees that the Company was looking for pretexts to
discipline and discharge them; and by coercively interro-
gating employees concerning their union activities, the Re-
spondent violated Section 8(a)(1) of the Act.
5. The unfair labor practices have a close, intimate, and
adverse effect on the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has committed certain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purpose and policies of the
Act.
Having found a continuing and adamant disposition on the
part of this Respondent to violate the Act, I will recommend
to the Board a so-called broad 8(a)(1) remedy designed to
suppress any and all violations of that section of the Act.
Hickmott Foods, 242 NLRB 1357 (1979). I will recommend
that the Respondent be required to remove from its personnel
records the unlawful reprimands to Dawson C. Fontenot
which it placed in its files, that it offer him full and imme-
diate reinstatement to the same or substantially equivalent
employment10 and that he be made whole for any loss of pay
or benefits which he may have suffered by reason of his dis-
criminatory discharge, in accordance with the formula set
forth in the Woolworth case,11 with interest thereon at the
adjusted prime rate used by the Internal Revenue Service for
the computation of tax payments. Olympic Medical Corp.,
250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716
(1962). I will also recommend that the Respondent post the
usual notice advising employees of their rights and of the re-
sults in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Harmony Corporation, Baton Rouge,
Louisiana, and its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union membership and union activities.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(b) Threatening to discharge employees or to refrain from
rehiring them if they sign union cards.
(c) Telling employees that the Company is looking for
pretexts to discipline and discharge them.
(d) Discouraging membership in or activities on behalf of
International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths-Forgers and Helpers, AFL–CIO, or any
other labor organization by placing written reprimands in
their personnel files, or by discharging, or otherwise dis-
criminating against them in their hire or tenure.
(e) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Dawson C. Fontenot full and immediate rein-
statement to his former or substantially equivalent employ-
ment, without prejudice to his seniority or to any other rights
he previously enjoyed, and make him whole for any loss of
pay or other benefits which he may have suffered by reason
of the discrimination found, in the manner described above
in the remedy section of this decision.
(b) Remove from the personnel records of Dawson C.
Fontenot the disciplinary warning and the termination slips
which were placed there, refrain from using such documents
as the basis for future disciplinary action, and notify Dawson
C. Fontenot in writing of this action.
(c) Preserve and, on 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 under the terms of this Order.
(d) Post at each of Rsepondent’s Baton Rouge, Louisiana
area jobsites copies of the attached notice marked ‘‘Appen-
dix.’’13 Copies of the notice, on forms provided by the Re-
gional Director for Region 15, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.