J. T. Cullen Co.

National Labor Relations Board - Board Decisions

Jul 6, 1984

271 N.L.R.B. 114 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. T. Cullen Co. and Robert C. Pollitz. Case 33-
CA-5999
6 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 January 1983 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent has filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief to the Respondent'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, to modify the remedy,2 and to adopt
the recommended Order as modified.
The principal issue in this case is whether em-
ployee Robert C. Pollitz was engaged in concerted
activity within the definition of Meyers Industries,
268 NLRB 493 (1984), when he refused to perform
certain work which he considered to be unsafe.
The judge, relying, inter alia, on Alleluia Cushion
Co., 221 NLRB 999 (1975), found that Pollitz' ac-
tivity was concerted. In Meyers, however, the
Board overruled the per se standard of concerted
activity in Alleluia Cushion when it decided that in
order for an employee's activity to be "concerted"
it must be "engaged in with or on the authority of
other employees, and not solely by and on behalf
of the employee himself." Applying this definition
to the instant case, we find for the reasons set out
below that Pollitz' refusal to work constituted con-
certed activity.
The relevant facts are as follows: The Respond-
ent is engaged in the business of industrial testing
as well as the custom manufacture of metal parts.
In 1981 American Xyrofin requested that the Re-
spondent inspect a 135-foot-high smokestack. Pol-
litz, an inspector, was asked to investigate the job-
site before the Respondent submitted its bid. After
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
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 reversing
the findings.
I Because the judge inadvertently failed to provide for such a require-
ment, we hereby modify the remedy to require that the Respondent ex-
punge from its files any reference to the discharge of Robert C. Pollitz
on 12 April 1982, and notify Pollitz in writing that this has been done
and that evidence of this unlawful discharge will not be used for future
personnel actions against him. In addition, we shall modify the recom-
mended Order accordingly. See Sterling Sugars, 261 NLRB 472 (1982).
271 NLRB No. 19
Pollitz reported his findings, Senior Inspector Rex
Winget prepared a cost estimate for the job in
March 1982.3 Winget decided that the job would
be performed by one man working in a man cage
which would be lifted into the air by a crane.
After the Respondent agreed to perform the in-
spection, Pollitz frequently discussed the safety as-
pects of that work with fellow inspectors Mark
Herrmann and Bob Fowler. The three inspectors
thought that the job, as Winget had designed it,
was unsafe in that they were expected to work at a
high altitude and possibly in windy conditions
without any safety belts or tag lines. They also
questioned the structural integrity of the man cage
that the Respondent planned to use. On at least
three occasions in late March, inspectors Pollitz,
Fowler, and Herrmann together advised Winget-
their immediate supervisor-of their safety con-
cerns. During one of these group discussions, Pol-
litz told Winget, "[I]f [the job] was set up safe, we
would do the job, but . . . until we were sure the
job was safe we would not perform the job."
On 7 April Winget asked Fowler if he would do
the job and Fowler told him he was not willing to
do it. Pollitz also told Winget that he was not will-
ing to do the job as designed. Winget then in-
formed Frank Johnson, the Respondent's president,
that the inspectors believed that the job was unsafe,
and that neither Fowler nor Pollitz was willing to
do the job.
On 12 April, Frank Johnson asked Pollitz why
he did not want to perform the smokestack inspec-
tion. Pollitz replied that based on his discussions
with Winget and the Respondent's plant manager
Roger Johnson Pollitz considered the job to be
unsafe. In response, Frank Johnson threatened Pol-
litz with discharge if he did not perform the work.
When Pollitz refused, Frank Johnson discharged
him that day.
The record supports a finding that Pollitz en-
gaged in concerted activity as defined by Meyers.
The three inspectors discussed their safety con-
cerns among themselves and with Winget, and then
jointly put Winget on notice that they would not
perform the smokestack inspection unless they
were sure it was safe. Winget then informed the
Respondent's president Frank Johnson that Pollitz
and Fowler would not perform the job unless it
was safe. Thereafter, on 12 April, in response to
Frank Johnson's question as to why Pollitz would
not perform the inspection, Pollitz reiterated that
based on his discussions with Winget and Roger
Johnson he considered the job unsafe. Frank John-
son thereupon threatened Pollitz with discharge,
3 All dates are 1982 unless otherwise indicated.
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J. T. CULLEN CO.
and later did discharge him because Pollitz de-
clined to perform the work. We find that Pollitz'
refusal leading to his discharge was based on the
mutual employee decision jointly communicated to
Supervisor Winget and therefore constituted con-
certed activity. We further find that the Respond-
ent knew of Pollitz' concerted activity, that the ac-
tivity was protected, 4 and, for the reasons dis-
cussed by the judge, that the discharge was moti-
vated by that activity. We therefore conclude that
Pollitz' discharge violated Section 8(a)(1) of the
Act. Accordingly, we shall adopt the judge's rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, J. T. Cullen Co., Fulton, Illinois, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Expunge from its files any reference to the
discharge of Robert C. Pollitz and notify him in
writing that this has been done and that evidence
of his unlawful discharge will not be used as a basis
for future personnel actions against him."
2. Substitute the attached notice for that of the
administrative law judge.
4 We agree with the judge's finding that Pollitz honestly and reason-
ably believed the work was unsafe, and thus we find that his refusal to
work was protected by the Act. In so finding, we note that our adoption
of the judge's reliance on Tamara Foods, 258 NLRB 1307 (1981), is limit-
ed to this sole proposition. We find it unnecessary to pass on any other
aspect of the Board's decision in that case.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with these rights given
to you by law.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in pro-
tected concerted activity such as a refusal to per-
form work that the employees in good faith believe
to be dangerous to their life or health.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Robert C. Pollitz immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL expunge from our files any reference
to the discharge of Robert C. Pollitz and notify
him in writing that this has been done and that evi-
dence of his unlawful discharge will not be used as
a basis for future personnel actions against him.
J. T. CULLEN Co.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. Upon
a charge filed on May 17, 1982, by Robert C. Pollitz, an
individual, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
33, issued a complaint, dated July 1, 1982, which alleges
that J. T. Cullen Co., herein Respondent, violated Sec-
tion 8(a)(1) of the National Labor Relations Act herein
the Act, by discharging Robert C. Pollitz on April 12,
1982, for engaging in protected concerted activity,
namely, refusing to perform a job he and his fellow em-
ployees deemed in good faith and reasonably believed to
be unsafe. Respondent denied in its answer and at the
hearing that it violated the Act in any way. Rather, Re-
spondent contends that it discharged Pollitz because of
insubordination. A hearing was held in this case in Rock
Island, Illinois, on October 5, 1982.
On the entire record in this case, including posthearing
briefs filed by the General Counsel and Respondent, and
on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
J. T. Cullen Co. is, and has been at all times material
herein, an Illinois corporation with an office and place of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business located at Fulton, Illinois. It is engaged in the
business of industrial inspection and testing.
Respondent, during the past 12 months, which period
is representative of all times material herein, performed
services valued in excess of $50,000 for customers locat-
ed outside the State of Illinois.
Respondent, during the past 12 months, which period
is representative of all times material herein, in the
course and conduct of its business operations, purchased
and caused to be transferred and delivered to its Illinois
jobsites goods and materials valued in excess of $50,000,
which goods and materials were transported to said job-
sites directly from States other than the State of Illinois.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
On April 12, 1982, Respondent discharged Robert C.
Pollitz because he refused to do a job assignment, i.e.,
perform an inspection of a smokestack to gauge its thick-
ness in order to establish a benchmark for corrosion and
deterioration up to a height of about 120 feet. The in-
spection was to be performed using a man cage hoisted
by a large, rented crane. It is the contention of the Gen-
eral Counsel that Pollitz' discharge for refusing to do
this job was in violation of the Act because Pollitz was
engagaing in protected concerted activity in refusing to
perform the assignment. Respondent contends that Pol-
litz was legitimately discharged for insubordination. I
agree with the General Counsel.
J. T. Cullen Co. is in the business of steel fabrication
from plans and specifications drawn by them or provided
by customers. It also does repair work both in its plant
and in the field. Its plant employees are represented by
the Boilermakers Union. Some years ago Respondent set
up a division called Industrial Inspection and Testing
Service (ITTS), which is not unionized and which does
ultrasonic and radiographic nondestructive testing of
such things as welds and metals. At the times material in
this case four inspectors worked in the testing section:
Rex Winget, Robert C. Pollitz, Mark Herrmann, and
Robert Fowler. The senior inspector was Rex Winget,
who, I find, was a supervisor within the meaning of Sec-
tion 2(11) of the Act since he had his office separate
from the other three inspectors, worked 1 hour a day
longer than the other inspectors, assigned work to the
other inspectors on the basis of the difficulty of the job
and the experience and competence of the other inspec-
tors, interviewed job applicants and made recommenda-
tions regarding hiring to his supervisors, initiated correc-
tive action if someone in his department was not doing a
good job, and maintained the personnel files on the other
three inspectors.' In addition, Winget is described in Re-
spondent's brief as the "immediate supervisor" of Robert
Pollitz. Winget reported to Frank Johnson, president of
Respondent, and his son, Roger Johnson, Respondent's
plant manager and secretary-treasurer.
In 1981 a company named American Xyrofin contact-
ed Respondent to inquire if Respondent could perform
I Custom Bronze & Aluminum Corp., 197 NLRB 397 (1972).
an inspection of American Xyrofin's 135-foot-high
smokestack. Robert Pollitz was asked to inspect the job-
site prior to Respondent making a bid since Pollitz was
scheduled to be in the area anyway. Specifically, Pollitz
was to ascertain if a painter's trolly was still in place.
Pollitz reported back to Respondent that the painter's
trolly had been removed.
Thereafter, in March 1982, American Xyrofin contact-
ed Respondent again and spoke with Rex Winget regard-
ing the inspection of its smokestack Winget wrote up a
cost estimate on the job on the basis that it would be
done by one man working in a man cage and that man
cage would be lifted into the air by a crane.
The American Xyrofin job order was brought into the
office of the three inspectors, i.e., Robert Pollitz, Mark
Herrmann, and Bob Fowler, all of whom discussed this
particular job often and at length. In fact after Pollitz
had inspected the jobsite but before the job was even
written up Pollitz had discussed this inspection job with
his coworkers and a consensus was reached that the job
was unsafe. After the job order came in their office the
three inspectors continued to discuss the safety aspects of
this inspection. I credit the testimony of Pollitz, Herr-
mann, and Fowler, and, therefore, find that on numerous
occasions between March 22, 1982 (when the job was
bid), and April 1, 1982 (when the inspection was first
scheduled to be done), that these three employees dis-
cussed the inspection job with each other and concluded
that it was unsafe to do this inspection for a variety of
reasons, e.g., the high altitdue and windy conditions, the
actual structure of the man cage itself (pictures of which
are in the record), the lack of safety belts, and the need
for tag lines to secure the cages. Further, I find that Pol-
litz, Herrmann, and Fowler discussed this inspection job
with Rex Winget, a supervisor, on at least three occa-
sions between March 22 and April 1, 1982. The three
employees expressed to Winget their grave reservations
about doing this job because of safety concerns. I also
find that the three inspectors's safety concerns were con-
cerns expressed to Winget in good faith. In addition, Pol-
litz expressed to Roger Johnson the concern of himself
and the other inspectors that this job as proposed to be
done by Winget was unsafe.
The inspection, which had initially been scheduled for
April 1, 1982, was postponed due to windy weather con-
ditions. On April 12, 1982, the inspection was resched-
uled and Pollitz was directed to conduct the inspection.
Between April I and 12, Pollitz had continued to discuss
this inspection with his coworkers, Fowler and Herr-
mann, and all three of these employees continued in their
good-faith belief that this job was unsafe.
On April 12, 1982, Frank Johnson, president of Re-
spondent, asked Pollitz why he did not want to perform
this inspection. As regards the particulars of this conver-
sation and what else transpired between Frank Johnson
and Pollitz on April 12, I specifically credit Pollitz' testi-
mony and not that of Frank Johnson. Basically, Pollitz
told Frank Johnson that he considered the job to be
116
J. T. CULLEN CO.
unsafe if done the way he understood it was to be done.2
The bottom line is that Pollitz clearly expressed to Frank
Johnson that Pollitz thought the job to be unsafe. An
opinion he and his fellow employees had made known to
two other supervisory officials, Rex Winget and Roger
Johnson. He was told by Frank Johnson, however, that
he would be discharged if he did not do it. Pollitz left
Frank Johnson's office. Pollitz wanted to talk with his
wife about what to do. He was unable to reach her. He
concluded in his own mind that the job as set up was
unsafe. He went back to Frank Johnson, told him he was
not going to do the inspection, and was discharged. In
refusing to perform this task which he and his coworkers
thought in good faith was unsafe Pollitz was engaging in
protected concerted activity under the Act. E. R. Car-
penter Co., 252 NLRB 18 (1980).
Later that day, Rex Winget went to American Xyrofin
and did the inspection. He did it without a safety belt.
He brought along Mark Herrmann as an assistant. After
going part way up in the man cage Winget ordered the
man cage to the ground and directed Herrmann to
secure lines which could be used as tag lines. Thereafter,
the inspection job was accomplished with Herrmann and
another person holding two separate tag lines from the
ground to steady the man cage.
The fact that Rex Winget was able to do the job that
Pollitz refused to do for safety reasons does not mean
that Pollitz' refusal was not reasonable and made in good
faith. It may simply mean that Winget is braver or more
foolhearty than Pollitz.
The facts clearly demonstrate that Pollitz and two
other employees, Herrmann and Fowler, engaged in pro-
tected concerted activity in discussing among themselves
their objections to do this inspection and in bringing
their mutual concern to the attention of management in
the person of Rex Winget. Alleluia Cushion Co., 221
NLRB 999 (1975). Further, Pollitz engaged in protected
concerted activity in bringing the safety concerns of
himself and his fellow employees to the attention of both
Roger and Frank Johnson. I find that Pollitz and the
other two employees acted in good faith in expressing
their safety concerns to management.
Respondent contends that the refusal of Pollitz to do
the inspection was not prompted out of fear for his
safety but rather he refused to do the inspection in order
to undercut the authority of Rex Winget and thereby
make Winget look bad in the eyes of Respondent's top
management. There is simply no basis in the record to
support this conclusion. The three employees reasonably
and in good faith were concerned about safety on this in-
spection assignment. During the actual inspection on
April 12 Winget asked Herrmann, who was assisting him
from the ground, if he would go up in the man cage and
Herrmann replied, "[N]o way." Further, if Pollitz was
I The thrust of the objection to doing the inspection was a combina-
tion of the structure of the man cage and the extreme height to which the
inspector in the man cage would be lifted. Although Pollitz and the other
inspectors felt safety belts and tag lines would be needed they were never
specifically told they could not have safety belts or tag lines but in fact
safety belts were not offered by management nor did management make
clear to Pollitz that he could take one or more persons with him to the
job if needed to secure tag lines to the ground.
not afraid for his safety in doing this job he would not
have refused to do it. He had plenty of opportunity to
change his mind and do the job after Frank Johnson had
told him he would be discharged if he refused.
Two other factors should be noted as well. This in-
spection job was a most unusual job for Respondent and
it was not a big lucrative job. According to Winget, who
had been with Respondent for 12 years prior to the hear-
ing, this was only the second time (the other being 3
years before) that an inspection was done at this height,
and according to Frank Johnson this inspection was a
"very little job." Respondent cannot and does not take
the position that its very economic existence depended
on its employees doing this job and jobs similar to it in
all respects.
If employees engage in protected concerted activity by
expressing to management their concerns about the
safety of a job and one or more in good faith refuse to
do that job or remain at a jobsite, they collectively deem
to be unsafe and one or more employees are discharged
for that then the discharges are in violation of Section
8(a)(l) of the Act. Union Boiler Co., 213 NLRB 818
(1974); Tamara Foods, 258 NLRB 1307 (1981). The ap-
propriate remedy for such a violation is an order to
cease and desist, reinstatement with backpay of the dis-
charged employees, and the posting of an appropriate
notice.
CONCLUSIONS OF LAW
1. The Respondent, J. T. Cullen Co., is an employer
enagaged in commerce, and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By discharging Robert C. Pollitz for engaging in
protected concerted activity under Section 7 of the Act,
Respondent has engaged in an unfair labor practice in
violation of Section 8(aX)(1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, J. T. Cullen Co., Fulton, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activity such as a refusal to perform work that the em-
ployee in good faith believes to be dangerous to his life
or health.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
3 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.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Robert C. Pollitz full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges.
(b) Make Robert C. Pollitz whole for any loss of pay
he may have suffered by reason of Respondent's discrim-
ination against him by payment to him of a sum of
money equal to that which he normally would have
earned as wages from April 12, 1982, less net earnings,
with backpay to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as set forth in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business copies of the attached
notice marked "Appendix." 4 Copies of the notice, on
forms provided by the Regional Director for Region 33,
after being signed by the Respondent's authorized repre-
sentative, 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. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
118