Orders Construction Co.

National Labor Relations Board - Board Decisions

Aug 22, 1991

304 N.L.R.B. 190 (N.L.R.B. 1991)

190
304 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel 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.
We correct the following inadvertent error in the judge’s decision. The date
the Charging Party, Milton Ray Cobb, received his first paycheck was July
20, not July 15, 1989.
2 Assuming arguendo that some of Cobb’s conduct constituted protected
concerted activity, we conclude, on the basis of the record before us, that the
General Counsel has not established by a preponderance of the evidence that
the discharge was unlawfully motivated.
1 All dates refer to 1989 unless otherwise indicated.
Order Construction Company, Inc. and Milton Ray
Cobb. Case 9–CA–26753
August 22, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 8, 1991, Administrative Law Judge Hubert
E. Lott issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the excep-
tions.
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-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Deborah Jacobson, Esq., for General Counsel.
Karen Hamrick, Esq., of Charleston, West Virginia, for the
Respondent.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Charleston, West Virginia, on December 21,
1989.1 Upon an unfair labor practice charge filed on August
23 by Milton Cobb (Cobb) against Orders Construction
Company, Inc. (Respondent) and on a complaint issued by
General Counsel on October 6.
The issue in this case is whether or not Respondent dis-
charged Cobb for engaging in union or concerted activities.
Respondent’s answer to the complaint, duly filed, denies
the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing briefs
have been received from the parties.
On the entire record and based on my observation of the
witnesses, and in consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in St. Albans, West Virginia, where it is engaged
as a contractor in the building and construction industry.
During 1989, Respondent, in the course and conduct of its
operations, purchased and received at its St. Albans, West
Virginia facility products, goods, and materials valued in ex-
cess of $50,000 directly from points outside the State of
West Virginia.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent further admits, and I find,
that the United Steelworkers of America, Local 14614, AFL–
CIO–CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company and Union have had an amicable relation-
ship for over 16 years. For most of its construction jobs in-
cluding the Capital High School project in Charleston, West
Virginia, the Company obtains workers through the local
union hiring hall. Cobb has been a union member for 11
years. He was hired by Orders on July 11 and discharged on
July 31, during his probationary period.
The overtime provision in the contract requires the com-
pany to pay time and one-half for all hours worked in excess
of 10 in a single day. The contract further provides that the
daily overtime provision may be modified by mutual consent
between the Company and the Union. In the past, and on the
Capital High School project, the Union has taken the position
that if the employees unanimously agree to a change in the
overtime provision, it will not object to its implementation.
The showup time (weather) provision in the contract calls
for 2 hours work if an employee reports for work or 2 hours
pay if work is not available. However, this provision does
not apply if in the opinion of the Company, weather condi-
tions prevail which make it unsuitable to start work or nec-
essary to stop work. The evidence supports the Company’s
position that it has never paid showup time when it hasn’t
requested an employee to remain on the job in inclement
weather.
B. General Counsel’s Evidence
Milton Cobb began work on July 11. On that day he testi-
fied that he was assigned the job of flagging. He complained
to Project Superintendent James Browning that he had a bad
back and if flagging was all the work they had for him, he
would go home. On July 15 he received his paycheck and
complained to Foreman Kenneth Parkins that he was short 1
hour overtime for July 12 and 1 hour of pay for July 13 and
July 14 when he was sent home because it was raining.
Parkins told Cobb that if he was complaining about showup
time, he would send him home in a drizzle. Sometime later
Cobb talked to Union President Ed Overby who told him that
191ORDER CONSTRUCTION CO.
all time over 10 hours a day or 40 hours per week is paid
at the overtime rate. But he (Cobb) shouldn’t say anything
because he was a probationary employee and the Union
couldn’t help him if he complained.
The week of July 19 there was a meeting of all employees
with Parkins and Browning. According to Cobb, Browning
said he had a meeting with Overby and was told by Overby
that it was alright if the employees worked straight time up
to 40 hours per week. Cobb told Browning that he didn’t be-
lieve Overby had the authority to say that and he would like
to see it in writing or have Overby tell him. According to
Cobb, he and Browning had an understanding that nothing
was agreed to.
The next day (Thursday) Cobb and some other men were
sent home because of bad weather. Others stayed on the job.
Cobb complained about being sent home, telling Browning
that he would never get overtime pay because he never
worked over 40 hours per week. Browning said that he never
saw anyone like Cobb and Cobb replied, ‘‘We could be
friends or enemies, that I wanted my money.’’ That if he
didn’t get overtime and showup pay he would fight him all
the way.
On Monday, July 31, Cobb was discharged by Browning.
He was not given a reason because he was probationary.
Cobb called Browning, ‘‘a low-life, chicken shit, son-of-a-
bitch.’’
On cross-examination, Cobb admitted that he did not com-
plain about his wages for the week ending July 27 because
he worked 45 hours that week. He complained to Browning
and Parkins on July 14 and July 20 that he should have been
paid for 1 hour he was at work before being sent home be-
cause of rain. On July 17, Cobb knew he was being paid
straight time for a 12-hour-per-day shift.
Cobb didn’t remember any safety meeting held on July 17
wherein all the employees voted to work a 12-hour shift at
straight time. He didn’t remember voting or any discussion
of overtime but he did remember talking to Browning that
day about overtime although he didn’t remember what he
said to Browning. Cobb admitted that on July 26, Overby ex-
plained the overtime policy to him, i.e., men could work 12
hours per day straight time if all the men agreed. He also
admitted that he was unaware of any showup time (inclement
weather) provision in the contract. Cobb never talked about
or filed a grievance concerning overtime or the bad weather
policy.
Employee W. D. Miller testified that one day at breaktime
the crew was discussing overtime. They believed they were
supposed to get time and one-half for all overtime. Cobb
stated that he knew that they were supposed to get overtime.
The next day there was a meeting held with Browning and
Parkins where the employees discussed overtime and Cobb
stated that he wanted overtime for hours worked over 10 per
day and he did not agree to work a 12-hour shift at straight
time. Sometime after the meeting, he overheard Cobb telling
Browning he didn’t think it (12-hour shift) was going to
work out the way they thought, and he (Cobb) wanted time
and one-half for all hours worked over 10 per day.
Union President Overby testified that he had inquiries
from Cobb about the overtime policy at Orders and about not
being paid for showup time. Overby told him to continue
working, not to cause any problems, and he (Overby) would
take care of it. He also told Cobb that there was no guaran-
teed 2 hours on rainouts. Three or four days later Area Man-
ager Aubrey Bowles called Overby stating that there were
problems concerning premium pay on the Capital High
project. Overby told him the contract called for daily over-
time for all hours worked over 10 per day, but that contract
provision could be waived if all the employees on the job
agreed. After Cobb was discharged, Bowles told Overby
Cobb was terminated because of his attitude.
C. Respondent’s Evidence
Bowles, Browning, and Parkins testified that the first day
on the job, July 11, Cobb asked how long the job would last.
When he was told, he said good because he wanted off dur-
ing hunting season. On that same day he was assigned
flagman duties. Cobb complained that he couldn’t do that job
because of a bad back and if that was all they had for him,
he would go home. Browning told Bowles, who in turn
called Overby informing him that he couldn’t use Cobb
under those conditions. Overby said he would talk to Cobb.
On July 17 the Company held a safety meeting at which
time the employees were asked to vote on whether they
wanted to work a 10-hour-per-day shift or a 12-hour-per-day
shift with overtime being paid after 12 hours instead of 10
hours. All the men, including Cobb, voted for the 12-hour
shift. The Company took no position because it didn’t care
one way or the other. The company wanted to get 50 hours
per week worked. If they could do it in 5 days or less that’s
what they would do. If they could not, Saturday would be
a makeup day. All employees were paid overtime for hours
worked in excess of 40 per week. Thus most employees were
receiving overtime anyway.
On July 20, Cobb told Browning that he wanted to change
the overtime hours from what the men had agreed to back
to 10-hour daily shifts. And that he wanted to be paid for
showup time even though employees didn’t start work be-
cause of bad weather. Cobb told Browning that his back
problems were confidential and none of Bowles business. He
accused Browning of holding a grudge against him because
he was not getting as many hours in a week as other employ-
ees. Cobb told Browning that he could be his friend or his
enemy in a rude and threatening tone which made Browning
feel personally threatened by him. At the end of the con-
versation, Cobb stated that he didn’t want a change in over-
time hours.
Although Cobb did not complain about overtime hours
after July 20, he repeatedly complained about being sent
home on bad weather days while other men remained on the
job. According to Browning, employees who remained at
work on rain days were picked in accordance with contract
seniority provisions. On July 27, Browning told Bowles that
he was having trouble with Cobb. He was hateful, threaten-
ing, and constantly complaining. Bowles said that since he
was probationary, dismiss him. On July 30 Browning told
Bob Orders, Jr. the same thing.
On July 31, Browning dismissed Cobb for being rude, dis-
respectful, threatening, and constantly complaining. Cobb
wanted to know whose’s idea it was to fire him. Browning
said it didn’t matter. Cobb then used rude and foul language
toward Browning.
The above company witnesses testified that they never re-
quire employees to remain on the job during bad weather, so
they never pay the 2 hours’ guarantee. They testified that the
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
men prefer working as many hours in a day as possible so
that they can travel to their homes on the weekends and
avoid motel bills. They also testified that they have been
unionized for a long time and did not discharge Cobb be-
cause of his alleged union activity. They did not consider
any of his actions as union activity.
Four employees testified that a safety meeting was held on
July 17 wherein a vote was taken on whether to work a 10-
hour daily shift or a 12-hour daily shift with overtime being
paid after those hours. At the meeting Cobb first disagreed
with the 12-hour shift but the vote was unanimous because
the employees didn’t like working on weekends. This deci-
sion was left entirely up to the men on the job. The Union
and the Company took no position. The company didn’t care
how the men decided on shift hours as long they all agreed
one way or the other. They testified that in inclement weath-
er, the company never required that employees stay on the
job unless asked, and never paid employees for showing up.
Robert Sloan testified that Cobb, Browning and Bill Miller
were talking about switching hours back to 10 per day when
he said it didn’t matter to him. In employee David
McGlothlin’s presence Cobb told Sloan to shut up his damn
mouth, it was none of his business.
Analysis and Conclusions
After a review of all the evidence, I can not find that Mil-
ton Cobb was discharged for engaging in union activity. He
complained about contract provisions and he complained
about being sent home during bad weather and many other
things. In effect Cobb complained about provisions agreed to
by the Union and the Company, including the seniority pro-
visions. He also objected to the agreement among the em-
ployees, to which he consented, which was sanctioned by the
Union and the Company.
Cobb stated that he didn’t remember the meeting at which
the vote was taken but I discredit him on this and all other
aspects of his testimony because his testimony was refuted
by so many other witnesses who stated that all agreed to
waive the 10-hour-per-day provision. Likewise, other aspects
of Cobb’s testimony are not credited because it it refuted by
more credible testimony and because he had a lapse of mem-
ory or was very selective in what he stated. Miller’s testi-
mony is discredited because it is inconclusive and refuted by
all other witnesses.
The Company has been unionized for years and has a
good working relationship with the Steelworkers and I credit
the testimony of all the witnesses who stated that the Com-
pany was neutral in the selection of shift hours. In short, I
find no antiunion motive in the discharge of Cobb.
General Counsel argues that Cobb may have been dis-
charged because of his protected concerted activities. I find
that Cobb’s activities were not concerted because he was
complaining on behalf of himself. In fact, his complaints
were against the interests of all the other employees. Neither
can I find that Cobb was attempting to enforce the terms of
the contract. The evidence supports a finding that the com-
pany was following the terms of the contract and Cobb knew
this. What seemed to displease Cobb among other things was
the fact that other employees were working more hours than
he even, although, the Company was following the company
seniority provisions. In my opinion, this does not equate with
asserting a contract provision which is being violated.
The entire record indicates that the employees, Company,
and Union were working in harmony with the exception of
Cobb. He arrived on the job with a bad attitude which per-
sisted from his first day of work until his last. Moreover, I
find that the Company satisfied its Wright Line burden by
providing many instances of misconduct, bad attitude, and
disruptive behavior on Cobb’s part which justified his dis-
charge as a probationary employee.
Accordingly, I will recommend dismissal of the allegations
in this complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in any violations of Sec-
tion 8(a)(1) and (3) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.