J. L. Manta, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1972

198 N.L.R.B. 289 (N.L.R.B. 1972)

J. L. MANTA, INC.
J. L. Manta, Inc. and Lloyd F. Poling. Case
6-CA-5766
July 19, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On April 25, 1972, Trial Examiner Benjamin K.
Blackburn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and Respondent filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions' and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed.
I In adopting the Trial Examiner's dismissal of the complaint, we note
that, with respect to the General Counsel's contention that Poling was the
object of a constructive discharge, this record reveals that Respondent by
August 6, 1971, had corrected the allegedly unsafe condition. Furthermore,
even if Poling was discharged, from the record it is clear that his
employment was terminated because he stated on August 6 that he wanted
to be discharged and hence his discharge was unrelated to any protected,
concerted activity
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: The charge in
this case was filed on November 29, 1971,1 and amended
on December 28. The complaint was issued on December
30. The hearing was held on February 22, 1972, in
Pittsburgh, Pennsylvania. The issue litigated was whether
Lloyd F. Poling quit or was discharged on August 6 and, if
the latter, whether his termination violated Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended.
For the reasons set forth below, I find that Poling quit.
Upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
289
Respondent , an Illinois corporation , is a painting and
roofing contractor in the construction industry . It holds the
painting subcontract on a powerplant being constructed
near Wheeling, West Virginia . During the year preceding
issuance of the complaint , it purchased goods valued in
excess of $50,000 which were shipped directly to it in West
Virginia from points outside that State . It is engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act. Local No. 91, International Brotherhood of
Painters and Allied Trades , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
It. THE UNFAIR LABOR PRACTICE
A. Credibility
This case turns, in the first instance, on the legal
significance of what happened during the last few moments
of Lloyd Poling's employment by Respondent. There is no
dispute that there was a misunderstanding growing out of
the fact that James Gionis, Poling's foreman, handed him
two paychecks on August 6 instead of the one Poling
expected. However, what happened in the few moments
that followed can only be understood in the light of the
altercation between Poling and Gionis the day before as
well on that morning. There is no real dispute about the
broad outlines of what happened or why it happened.
There is, however, a sharp conflict between Poling's
testimony and the testimony of Respondent' s witnesses
about what they said to each other. For instance, Poling
testified that, on the morning of August 5, immediately
after his run-in with Gionis, he spoke to George Ginnis,
Respondent's superintendent on the project and Gionis'
superior. Poling's version of what was said is:
So I walked away and ran into the superintendent,
George Ginnis. I told George what happened and he
says I'll talk to Jimmy. I says Jimmy says he don't have
no other work. He says that's no excuse. Jimmy has lots
of work.
He told me to wait in the shanty while he went to
talk to Jimmy.
Ginnis' version is:
, He talked to Jimmy and he stopped me. He say I
can't work with Jimmy. I work with you. I say why? He
say I can't. I'll quit. So you going to quit I say I can't
help it. I say I can't push you. If you going to quit you
quit.
And again, on cross-examination:
He says you son of a bitches. I say what matter? He
say I quit. He say I got no place. Jimmy got no place to
put me. So he left. He says I'm going to go see the B.A.
and get another job.
The difference is crucial. The importance of the
difference does not lie in the fact Ginnis said Poling used
the word "quit." Respondent does not contend that Poling
quit at that moment. In any event, even if it did, the fact
that Poling used the future tense in this exchange would
I Dates, other than the date of the hearing , are all 1971
198 NLRB No. 48
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preclude a finding that he quit on August 5. The
importance of the difference lies in the state of Poling's
mind which this and other conversations reveal, especially
in those last few moments with Gionis on August 6 when
Poling did not use the word "quit." In the section entitled
"Facts" which follows I have credited James Gionis and
George Ginnis over Lloyd Poling wherever these conflicts
appear in the record. As to other facts, I have credited
Poling only when his testimony is corroborated by that of
another witness . In this connection , I have taken the
testimony of Robert Long as corroboration of Poling's
account of what preceded his run-in with Gionis even
though Long was, generally, uncertain on many of the
points he was questioned about. The fact that the whole
case was triggered by Poling's concern for safety is not
disputed in any event. As to when the work which Poling
and Long did not do on August 5 was finally performed,
an unimportant detail, I have credited Gionis over Long.
I have relied on the demeanor of all three in crediting
Gionis and Ginnis over Poling. More importantly, howev-
er, I have relied on the testimony of Paul Kilgore, the
union steward on the project, who was called as a witness
by Respondent. Kilgore did not overhear any of the
Gionis-Poling or Ginnis-Poling conversations. He does
not, therefore, directly corroborate Gioms or Ginnis or
refute Poling . He did , however, in two brief sentences,
summarize an important aspect of this case ; i.e., Poling's
failure to win any real support from his union after August
6 even though he, himself, is president of the local. Kilgore
was asked whether Poling had told Kilgore why Poling was
leaving the job on the morning of August 6. Kilgore's reply
was:
He said something about the equipment wasn 't right.
The ropes wasn't right. The ropes on the cables wans't
right. That's why I says let's go down and check them
out this morning. We'll pick out three or four men off
the crew. Pick out anybody you want.
He wouldn't listen to that. When he started walking to
the gate I said don't come crying to me later on. And I
thought that was all there was to it. [Emphasis supplied.]
In other words , Kilgore , a man whose position would make
him more rather than less sympathetic to Poling's side of
the dispute, thought that Poling was quitting when he
walked off the job for the last time.
B. Facts
Respondent is a union contractor. While performing its
subcontract at Mitchell Power Plant, near Wheeling, West
Virginia, it has entered into a collective-bargaining
agreement with Painters Local 91. Article 4, section 2 of
that agreement provides:
No journeymen or apprentice will be permitted to
work on any ladder or scaffolding which they protest to
the contractor as being unsafe. In the event such
protest is made and not corrected, the matter may be
referred to the Business Agent for a decision as to the
equipment's condition . If the Employer is not satisfied
with the decision of the Business Agent, he may refer
the matter to the Joint Trade Board for a final decision.
If the equipment is deemed unsafe, the employee will
receive full pay for any loss of time as a result of the
working dispute.
Lloyd Poling is president of Local 91. He went to work
for Respondent at Mitchell Power Plant on April 12. He
worked without incident along with some 20-odd other
union painters under Foreman James Gioms until August
5. That morning , pursuant to instructions from Superin-
tendent George Ginnis, Gionis put all his men to work on
outside painting . Robert Long had been working in a high
area with another painter who failed to show up that
morning. Consequently, Gionis asked Poling if he would
work with Long. Poling said he would.
Long and Poling were assigned to paint the underside of
a breeching some 120 feet above the ground . The breeching
connected a powerhouse with a smokestack . Hot gasses
passed from powerhouse to smokestack through it. It was,
therefore , hot on its outer surface . In painting this area,
Long and Poling were required to work from a pick. The
pick was a plank 12 inches wide by 24 feet long. It was
supported by two cables which stretched the 100-foot
distance from powerhouse to smokestack . As the painting
progressed , the pick was to be moved . Because the cables
from powerhouse to smokestack sagged , they were sup-
ported by two tieup lines which passed over the breeching.
On the morning of August 5, the tieup lines were rope.
They had been in place approximately 4 days.
Long and Poling went onto the pick while Gionis
watched from the ground to be sure that Poling would be
able to do high work. Long and Poling began to paint.
Poling had painted only one small area he could reach
from one position when Long said he was concerned about
the tieup lines. He said they did not look so good . Poling
got off the pick , walked out on the cable , and inspected the
tieup lines . He concluded the rig was unsafe because they
were rope, not cable, and might have been dried out by the
heat from the breeching in the time they had been in place.
He told Long he was going to go down and talk to Gionis.
He descended to the ground while Long remained on the
pick. Gionis saw what Poling did although , the pick being
so far above the ground , he could not hear what Long and
Poling said to each other . Gionis concluded that Poling
was afraid to work on the pick.
On the ground , Poling talked to Gionis . Poling told
Gionis he could not work on the breeching and asked
Gionis to put him somewhere else. Gionis tried to explain
that he was limited in the area to which he could assign
painters that day because of his instructions from Ginnis to
finish up the outside work . Gionis asked Poling why he
could not work on the breeching . Poling said because the
setup was unsafe . He explained about the ropes . Gionis
thought Poling was making an excuse to hide his fear. He
became angry . He tried to get Poling to admit he was
afraid. He said, "Why can't you work? Why does
everybody else work? Why does everybody else I send stay
with it and they work? Tell me the truth. Why can't you
work?"
Poling became angry . He said , "To hell with it. If I have
to work on that I will quit ." He stalked off.
Gionis motioned Long to come down from the pick.
Because working on the pick is a two-man operation,
Gionis assigned Long to other work for the rest of the day.
J. L. MANTA, INC. 291
In the meantime, as Poling walked away from Gionis, he
encountered Ginnis. He told Ginnis what had happened,
cursing at Ginnis in the process. He said that he could not
work with Gionis. He protested that there was other work
to which Gionis could assign him instead of making him
work on the breeching. He said he would quit if he had to
work on the breeching. Ginnis said he could not make
Poling work on the breeching. He told Poling to quit if that
was what he wanted to do. As Poling walked away, he said
he was going to see his business agent and get another job.
Poling proceeded toward the construction shanty. He
next encountered Paul Kilgore, Local 91's steward on the
job. Poling tried to explain what had happened to Kilgore.
He said, "The hell with this job. I can find a better .job."
Kilgore, who was on his way to deliver some paint, told
Poling he did not have time at the momemt but would
meet him at the shanty as soon as he was free.
Poling went to the shanty. He tried to telphone Local
91's business agent but was unsuccessful. A few minutes
later, he went home without waiting for Kilgore.
The next day, August 6, was a Friday. Respondent pays
its employees each Friday for the workweek ending on
Tuesday of that week. During the week which ended
Tuesday, August 3, Poling worked on another project for
Respondent as well as the Mitchell Power Plant job.
Respondent had prepared a separate check for each
project. Consequently, on the morning of August 6, there
were, in the ordinary course of business two paychecks in
separate envelopes at the.jobsite for Poling.
When Poling arrived at the.jobsite around 7:30 a.m. on
August 6, he did not change into his work clothes. Instead,
he spent the time until a few minutes before the 8 a.m.
starting time talking to the other men about what had
happened the day before. He complained to Kilgore that
the setup at the breeching was unsafe. Kilgore suggested
that he and Poling take three or four other men and inspect
the ropes. Poling would not do as Kilgore suggested.
Kilgore offered to call Bruce White, Local 91' s business
agent. Poling declined the offer. Around 5 minutes before
8, Poling went to the shanty and demanded his paycheck
from Gionis. Gionis gave him the two checks which were
there for him. Poling leaped to the erroneous conclusion
that the second check was for money due him for work
performed after Tuesday and indicated that he had been
fired for walking off the job the day before. Poling erupted,
saying "You fired me" and threatening various actions he
was going to take against Gionis and Respondent. Gionis
became angry, too. He said "No, I didn't."
Poling said, "Yes you did. You gave me the check."
Gionis said, "Open it up and look at it."
Poling said, "Well, I want to be fired."
Gionis said he would see if he could find the money so as
to oblige Poling. (An employee who is fired is entitled to
receive all wages he has coming to him before he leaves the
jobsite. An employee who quits must, under ordinary
circumstances, wait until the next regular payday for his
wages.) Gionis took Poling to Ginnis. Ginnis made out a
check for 10 hours' pay, 8 hours which Poling had worked
on Wednesday, August 4, and 2 hours' showup time for
Thursday, August 5, when Poling had walked off the job
during the first hour. Poling left. He has not worked for
Respondent since . Long and another man painted the
breeching from the pick on August 6. The tieup ropes were
replaced with nylon cable.
Poling finally reached White , the business agent, on
Monday morning . White told him to file charges against
Gionis when Local 91 's executive committee met the next
night . Poling did so. The committee held a hearing on
August 28 . Gionis was found guilty of unsafe working
conditions . Poling was found guilty of walking off the job
without first bringing in the business agent to handle the
dispute . White worked out a settlement with Respondent
under which Gionis agreed to put Poling back to work as
soon as he needed another man . The record does not reveal
whether Respondent has, in fact , added any painters at the
Mitchell Power Plant since the agreement was reached.
Poling has made no effort to contact Respondent about
returning to work under the terms of this agreement. The
dispute never went to the joint trade board composed of
union and management members which the collective-
bargaining agreement between Respondent and Local 91
provides as the machinery for settling disputes.
Poling also filed intraunion charges against Kilgore for
the manner in which Kilgore carried out his stewardship.
Local 91 exonerated Kilgore.
C. Analysis and Conclusions
The General Counsel's theory is that Respondent
discharged Lloyd Poling on August 6 because Poling had
engaged in the protected activity of protesting the safety of
working conditions in concert-with- Robert Long or, in the
alternative , because he sought to enforce article 4, section 2
of Respondent's contract with Local 91. A discharge for
either motive would be a violation of the Act without
question. However , whether the violation is viewed in
terms of Section 8(a)(1) or Section 8(a)(3), there must first
be either a coercion of Poling or a discrimination against
him by Respondent before Respondent 's motive comes
into question . Put more succinctly , Poling must have been
discharged on the morning of August 6 for a violation to
have occurred . In my opinion, this record , considered as a
whole , will not support such a finding . The only two
elements in its favor are the fact that Poling did not use the
magic word "quit" and the fact that he was accorded the
treatment due a discharged employee when he was paid off
on the spot . Neither has the significance it might have had
in a different context . Both are outweighed by the fact that
all of Poling's actions and words, both on August 5 and on
August 6, point toward a resolve to leave Respondent's
employ in favor of seeking a more congenial job and the
fact that Local 91's handling of his case indicates its
conclusion that he quit rather than was discharged. I am
convinced that Poling could have gone to work on the
morning of August 6 if he had chosen to and may have if
he had not lost his temper with James Gionis to the point
where he told Gionis that he wanted to be fired. I find,
therefore , that Poling's employment with Respondent
terminated as a result of Poling's own decision and action,
not Respondent's. In a word, he quit. Pottsville Community
Hotel Co., Inc., 140 NLRB 556, 563.
Even if my finding on this question were to the contrary,
I would still not find a violation. If I were to reach the
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of motive, I would not find that Respondent was
motivated by Poling's protected, concerted activity or by
his efforts to enforce a collective-bargaining agreement. I
would find that it was motivated, in the person of Gionis,
solely by anger at Poling's walking off the job on August 5
and his conduct on the morning of August 6, and that this
is not a discriminatory motive within the meaning of the
Act.
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
2. Local No. 91, International Brotherhood of Painters
and Allied Trades , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (l) of the Act by discharging
Lloyd F. Poling on or about August 6, 1971, and thereafter
failing and refusing to reinstate him, have not been
sustained.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
1. J. L. Manta, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
The complaint is dismissed in its entirety.
2 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions , and order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes