Power Plant Maintenance Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 205 (N.L.R.B. 1987)

POWER PLANT MAINTENANCE CO. 205
Power Plant Maintenance Co., Inc . and Internation-
al Brotherhood of Boilermakers Local Union
No. 30. Cases 11-CA-10459, 11-CA-10549,
and 11-CA-10550
30 September 1987
DECISION AND ORDER
By MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 15 February 1983 Administrative Law Judge
Thomas A. Ricci issued the attached decision. All
parties filed exceptions and supporting briefs.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 decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order as modified.3
The judge failed to find an 8(a)(3) violation re-
garding employee Victor Welch. The judge found
an unlawful refusal to hire the other eight employ-
ees who, along with Welch, were told by the Re-
spondent that they would be hired but were not
hired because of their union activity.4 The com-
i The Respondent and Charging Party have excepted to some of the
judge's credibility findings The Board 's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct 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.
2 The judge found that Supervisor Ollis unlawfully interrogated Ed-
wards on two separate occasions The record reveals that although Ollis
made two statements to Edwards , both were made during the course of
only one conversation We also correct the sequence of events to show
that during this conversation , Ollis' question to Edwards immediately pre-
ceded his threatening remark We agree with the judge that Ollis' ques-
tioning of Edwards about his union activities violated Sec 8(a)(1) We
also agree that Ollis' subsequent statement to Edwards that the employ-
ees might be "run off' because of their union activities was an unlawful
threat of reprisal Contrary to the judge, however, we do not find that
this threatening remark contained any question and thus we are unable to
conclude that this threat was also an unlawful interrogation.
The judge also found that Supervisor Hancock 's inquiries to Edwards
regarding Edwards and a fellow committeeman's union activity were un-
lawful . We find it unnecessary to pass on this finding inasmuch as any
finding would be cumulative and would not affect the remedy.
We also correct certain other factual eirors made by the judge First,
we correct his inadvertent reference to "boiler No 2" when clearly he
was referring to "boiler No 3 " Second , we correct his findings concern-
ing Brian Walsh 's employment on Boiler 3 Respondent 's payroll records
show that work on Boiler 3 began on 1 June and continued until 25 June
The employee complement reached its peak during the second week and
tapered off slightly during the third week, but did not dramatically de-
cline until the fourth and final week on the job These same records show
that Brian Walsh worked on Boiler 3 from 13 to 17 June, logging in 53-
1/2 hours during this period
3 The Order is modified to conform with our decruon in Dean General
Contractors , 285 NLRB 573 (1987)
4 In finding the Respondent's refusal to hire the committeemen unlaw-
ful, Member Babson disavows the judge's reliance on the statement of the
Respondent's president , Moree, that he would do all he legally could to
keep the Union out of his business In so doing , Member Babson notes
plaint alleges that Welch was unlawfully dis-
charged on 11 May but reinstated on 28 May. The
judge found that because the unit 2 job shut down
completely on 25 May, Welch could not have been
reinstated on 28 May because there was no work
available. The judge dismissed the complaint con-
cerning Welch concluding that a "respondent has a
right to consider the complaint against him at face
value, and I am limited rationally to the complaint
as written." We disagree.
The record is clear, and the judge made no con-
trary finding, that Welch was one of nine commit-
teemen whom the Respondent failed to rehire be-
cause of this protected activity. Although the com-
plaint was technically incorrect, 5 the error was not
prejudicial to the Respondent, nor did it prevent
the Respondent from fully and fairly litigating its
case . Accordingly, we find that the Respondent
violated Section 8(a)(3) when it unlawfully refused
to rehire Welch.6
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Power Plant Maintenance Co., Inc., Rox-
boro, North Carolina, its officers, agents , succes-
sors, and assigns , shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Barry Edwards, Bill Teague, Bryan
Walsh, Bruce Walsh , Benjamin Owens, Danny
Owens, Henry Loftis, and Kevin Gainey immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them and the estate of Victor
Welch whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them with interest to be computed in the
manner prescribed in New Horizons for the Retard-
ed."7
that the judge, earlier in his decision , concluded that Moree's statement
was not unlawful
8 In his brief in support of exceptions, counsel for the General Counsel
moved to amend the complaint to reflect the correct date of Victor
Welch's return to work We deny the motion as untimely
6 The fact that Welch did work from I to 3 June on the No 2 turbine
project would mitigate against the Respondent 's backpay liability, if any.
However, that matter is best left to the compliance stage of the proceed-
ings
r In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
286 NLRB No. 15
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The essential issues presented are whether the Respond-
ent discharged 10 employees in May 1982 , and thereafter
refused to employ them because of their activities in sup-
port of the Union , in violation of Section 8(a)(3) of the
Act. Briefs were filed , after the close of the hearing, by
the Respondent and the Charging Party.
On the entire record and from my observation of the
witnesses , I make the following
FINDINGS OF FACT
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.
WE WILL NOT refuse to employ or otherwise dis-
criminate against our employees because they have
engaged in concerted union activities.
WE WILL NOT interrogate our employees con-
cerning their union activities or concerning the
union activities of their fellow employees.
WE WILL NOT threaten to discharge employees
in retaliation for their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Barry Edwards, Bill Teague,
Bryan Walsh, Bruce Walsh, Benjamin Owens,
Danny Owens, Henry Loftis, and Kevin Gainey
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantial-
ly equivalent positions , without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed , and WE WILL make them and the estate
of Victor Welch whole for any loss of earnings and
other benefits resulting from their discharge, less
any net interim earnings , plus interest.
POWER PLANT MAINTENANCE CO.,
INC.
Jasper C. Brown Jr., Esq., for the General Counsel.
Robert A . Valois, Esq. and Margie T Case, Esq. (Maupin,
Taylor & Ellis), of Raleigh , North Carolina , for the Re-
spondent.
Robert L. Dameron, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge . A hear-
ing was held in this proceeding on November 2, 3, and 4,
1982, at Durham, North Carolina , on complaint of the
General Counsel against Power Plant Maintenance Co.,
Inc. (Respondent or the Company). The complaint issued
on September 29, 1982 , on three separate charges filed
by International Brotherhood of Boilermakers Local
Union No . 30, on June 10, 1982, and August 13, 1982.
1. THE BUSINESS OF THE RESPONDENT
In the States of North and South Carolina this Compa-
ny is engaged in the business of providing maintenance
for power plants at several jobsites , including the Caroli-
na Power and Light Plant, CP & L, in Roxboro, North
Carolina , and in Bowater , South Carolina . During the 12
months before issuance of the complaint, a representative
period, the Respondent received gross revenues in excess
of $50,000 for services provided directly to customers
outside the State of North Carolina . During the same
period it also purchased goods and materials directly
from points outside the State of North Carolina valued in
excess of $50,000 . I find that the Respondent is an em-
ployer within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Boilermakers
Local Union No. 30 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
Correct understanding of this case requires a clear pic-
ture of its underlying realities at the outset . This Compa-
ny is in the business of repairing and maintaining power
plants throughout several states . It enters into one con-
tract after another, each with a power company, to do a
job to completion . It will carry on several such commit-
ments simultaneously , one here and one there, some of
them hundreds of miles apart . For each separate job it
hires the necessary personnel and then releases them
when it is completed . In the course of a single year, for
example, it will have as many as 30 different jobs at dif-
ferent sites . It uses as many as 1200 employees, many of
them skilled craftsmen . Some jobs are small , some large.
One job will require only 5 or 6 men, another as many as
650. None of the men who work for it have steady, regu-
lar employment , such as would be the case in a perma-
nent factory or other fixed establishment. When a man is
no longer needed on a particular job, he looks for work
elsewhere, wherever he can find it. Often he applies at
some other project this Company is about to start, or is
already carrying on. If needed , he will be rehired . If not,
either he waits or seeks other employment. By employee
Bryan Walsh : "Q. And how often each year will you
work for him [the general foreman of the Respondent]?
A. Well, I would say usually around 6 months a year,
just depending on how the jobs run ; off and on, you
POWER PLANT MAINTENANCE CO. 207
know, sometimes it will be a week; sometimes it will be
two or three months." By employee Lloyd Owens: "Q.
When did you work for the Company? A. Several differ-
ent occasions but with reference to Boiler 2, 1 work
from, it was about February to the last of April." By
Walter Patton: "I called these people 25 to 30 times per
year depending upon my employment elsewhere; when I
am unemployed, I call them weekly."
This is an important fact in this case at bar because the
complaint alleges that when nine men were sent home
from a certain contract job the Company was finishing-
called Boiler 2 in Roxboro for CP and L--the Respond-
ent refused to "reinstate" them. This is misleading, for
the project they had worked on for several months was
finished, there simply was no more work for anybody.
Another contract repair job, called Boiler 3, also for CP
and L, started a number of days later, and for that job
the Company called in many out-of-work employees
who had worked for it before on other projects. This
was a continuation of its usual practice. The men who
worked on Boiler 3 were simply new hires, as is always
the case when this Company takes on another repair job
in one city or another. If in fact Respondent refused to
hire the pinpointed nine men on the new job with an ille-
gal motive, that is one thing. But the idea of "failure to
reinstate ," as stated in the complaint, is wrong.
This true nature of employment with this Company
touches as well on the other half of the complaint, which
says that when discharged from the first job-Boiler 2-
the Respondent did not hire them on Boiler 3 because it
knew them to favor the Union. Here, the fact that the
job they were on was petering out and that they could
expect to be among those to be let go, is ignored. Again,
the fact is these men were not "fired," or "discharged,"
in the usual sense of the term, i.e., as when an employer
just picks a man from among his steady, fixed, and per-
manent complement and sends him home. The project
ended, the work was finished, and therefore they were
left without any work.
B. The Alleged Discharge of the Committeemen
In the spring of 1982 the Respondent did a contract
job for CP and L at Roxboro , repairing a power plant
referred to as Boiler 2. It started in February and ended
in late May. At one point, the week ending April 30,
there were 160 employees, at least according to a payroll
record received in evidence.' During April a movement
' As witnesses at the hearing a number of employees who worked
there spoke of there being over 100 employees at a time on this job. It
was a very large one and the individual employees could not have known
how many employees really worked at any given time Payroll records
for each week of the job were received in evidence , with all parties
agreeing they are authentic company records They show clearly just
how many employees worked each week , indeed they show exactly on
which day each of them was released when the job came to an end. Jack
Vance, the Company 's secretary -treasurer , as a witness, said there were
100 on the job at its peak , but I am unable to reconcile that statement
with the agreed on company record In any event, whatever the number,
it is clear it was well over 100 men
After the close of the hearing the Respondent mailed to my office an-
other payroll record, assertedly of the Respondent, for the weeks ending
May 21 and May 28 , saying they had inadvertently been omitted from
the received exhibit . I have not relied on that for figures here, because it
is not clear Some refer to , without explanation , two jobs-Boiler 2 and
started towards joining Boilermakers Local 30; the activ-
ists obtained about 35 signatures to authorization cards.
On April 26 the Union sent a telegram to the Company,
informing it that nine employees-each named in the
telegram-were active in the organizational campaign
and reminding it that the statute protects such employees
against illegal discrimination in employment. This was
just a way of telling Respondent not to lay off these par-
ticular people. As time went on, through the month of
May, each of these employees was released, as was ev-
erybody else. Was the dismissal of these men an unfair
labor practice, unlike the dismissal of all the others, or
were they entitled to preferential treatment because they
called themselves the organizing committee?
The Company was opposed to its employees being
represented by the Union. Shortly after the Company re-
ceived the Union's telegram , Willie Street , a general
foreman who works regularly for the Respondent, called
the nine men named in the telegram to meet with him.
Several employees testified about what he said there. Ac-
cording to Bryan Walsh: "... he ended up asking us,
you know, if there was any problems or anything wrong
with the job, why we would like to, you know, have a
union come in there?" According to Barry Edwards,
Street "went on to say that he didn't know why we
wanted a union, that we should come to him with our
problems, if we had any." "Then he went into saying
that he had once been a member of the union himself,
and that he was no longer a member of the union; he
told us he didn't want the job to suffer, that he had had
one man to quit because he felt like he was being har-
assed on the organizing drive and he didn't want to see
his men, that he didn't want to lose his men right there,
that he didn't want the job to suffer ...." According
to Henry Loftis: "He first asked us, you know, what did
we want a union for, and why did we want a union, you
know, that we should have come to him with any prob-
lems; and then he said how good a job that Barry and
the other welders had done; and that he was well
pleased with the way that they were working and that
he would, that it would be a short break between Unit 2
and 3, and that he would guarantee us a job, you know,
on Unit 3 ...."
Also by Edwards: "He told us that he knew that we
were doing a fine job, that we had bailed him out a
number of times, that he appreciated it, and then he went
on to talk about the work on Unit 3; and I asked him:
`Was it going to hurt us when we went over to Unit 3
since we were, you know, trying to organize the job.' He
told me: `No, we had bailed him out, that we were
among the best people, he had on the job, and he would
see that we got over on Unit 3, that he would guarantee
us a job on Unit 3."'
Street's version of this talk with the nine men is that
all he told them was the Union was "their business and
whatever they wanted to do about it, that I appreciated
Boiler 3 Some referred to a later "turbine" job The transcript testimony
clearly shows the "turbine" job was contracted by CP and L to General
Electric Company , which operated entirely apart from the Respondent,
albeit it did employ some employees who had worked on Boiler 2 for the
Respondent at the same location
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it, I would appreciate it if they would keep it out down
on their job while they were working on the job ... .
Street admitted telling the men they were doing "a fine
job," but denied saying they should have brought their
problems to him instead , or promising them unequivocal-
ly they would, all nine , have jobs on the next project,
which was to begin the next month. I credit the employ-
ees against the manager. A number of times later, while
the men were applying for jobs on Boiler 3 or on other
projects the Company had, Street admittedly told Ed-
wards he was hesitant about rehiring him because he
feared Edwards' union activity would go contrary to the
desires of others and cause others to walk off the job.
Street also said, at other points in his testimony, that
by about the end of May he had already prepared a list
of employees he was planning to hire on Boiler 3 and
that on that list were all nine of the men he was speaking
to that day. Moreover, Street, as well as other manage-
ment representatives, said that all these men were very
well qualified, indeed were among the better workmen in
the very large group it ordinarily employed.
A few days later the Company gathered all its employ-
ees-well over 100-in the large lunchroom for a mass
meeting . Henry Moree, the company president, opened
the meeting by telling the employees he had received the
Union's telegram and he was opposed to having a union
in the place. By employee Dennis Mitchen: "He said `I
received a telegram from the Union. . . . and imposing
that they have a committee on this job.' He said, `I know
who the people are' which they were there in front of
him with the telegram and he went on to say that the
union, he said 'It is good for some people and is not
good for others.' He said, `I myself elect not to go with
the Union being, I mean,' he said: 'I will fight it anyway
in my power legally.' I don't know if that is the exact
wording that he used but it was something to that order
that it would protest it legally, and then he went on to
stress a few points about safety." By Edwards: "He
[Moree] . . . received a telegram from the union . . . he
would do everything he could to oppose it; he made that
statement twice; and everytime he made it, he added on
to the end of it `that he would do everything he could to
oppose it legally . . . .' He went on to say that he was
opposed to the union, that he had worked union, he
didn't agree with the philosophy of the Union, that it
was okay for some people, and for some people it wasn't;
that the Union did their job at $22 a man hour , that he
had bid his $13 to $15 an hour in order to get the work;
in order for him to get work, he had to bid at that; that
if he had to pay union rates, that wouldn't nobody there
have a job because he couldn't get any work if he had to
pay union rates." By Loftis: "[Moree] would do what he
could to keep the union out . . . and he said that if he
had to pay union scale that none of us would be working
because if he had to pay the man hour rate because he
couldn't compete with the other contractors." Other em-
ployee witnesses quoted the owner the same way, but
there is no purpose in repeating it all here, for Moree ad-
mitted it all. From his direct testimony:
Q. And you told them that you opposed the
meeting ; I mean oppose the Union, rather; is that
right?
A. Yes, sir.
Q. And you said that you would do anything le-
gally within your power to keep the Union out?
A. Yes, sir . . . . I told them that my total
charge was $13 a man hour, other than a specialty
craft. I told them that a regular fitter or boiler-
maker, my total charge, taxes, insurance and profits,
was $13 a man hour. I told them that my competi-
tors paid out $14 a man hour and that I couldn't get
the job if I charged 20 to 25 dollars a man hour
... I told the employees that if I had to charge
$25 a man hour they wouldn't be working for me.
They could be working for some other contractor
that might get the job, but they wouldn't be work-
ing for me.
Moree's opening remarks at this meeting were short.
He then turned the meeting over to his managers, who
proceeded with what the employees referred to as the
usual safety meeting. Among the things General Fore-
man Street then said was that, because of pressure put on
him by CP and L, the men must be sure to wear their
safety helmets while at work and their safety glasses as
well, and that if they did not they would be discharged.
Again, no need to belabor all the repetitive testimony of
the listeners, for it is clear that is what he said. The em-
ployees recalled Street saying his warning was dictated
by the power company, which did exercise a measure of
control over what was going on in its plant. Some of the
employees even recalled there had been instances of per-
sonal injuries caused by failure to use the protective
gadgets . In fact, there is uncontradicted testimony that
several employees had recently been hospitalized because
of this carelessness.
I find nothing wrong with the owner's statement that
he would do all in his power "legally" to keep the Union
out of his business. Nor do I find it an unfair labor prac-
tice, as apparently alleged in the complaint, for Moree to
have said he could not afford a union because union
wages were much higher than what he could afford on
the basis of his bids, which were getting him the jobs on
which his people were working. Cf. NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). I do not know
what the prevailing union wages for this kind of work
are in the general area where this Company operates, but
the fact is none of the employees present when Moree
was talking quarreled with him on that score, and some
of them were old unioneers. Nor is there any contention
that the owner was lying about that, so that this situation
might be likened to false propaganda preceding a Board
election. Finally, the enforcement announced that day by
Street was also dictated by OSHA's applicable rulings.
On this pinpointed aspect of the case no supporting
precedent was cited by anyone; in fact the Charging
Party's brief, 30 pages long, cites no case at all, and the
General Counsel did not file a brief of any kind.
But these two meetings held by the Company do es-
tablish clearly one fact that is germane to the two princi-
pal issues of the case-were the men named dismissed
POWER PLANT MAINTENANCE CO 209
because of the union activities, and, were they denied
employment at the next Boiler No. 3 for that reason?
The Respondent was determined to put at stop to the
prounion activities if he could do so legally. This reality
will be fairly appraised together with other pertinent
facts of record concerning the principal complaint allega-
tions.
There were some 8(axl) violations of the statute com-
mitted by supervisors in other conversations with the
employees. While Edwards was still on the Boiler No. 2
job, Supervisor Ollis told him "he hated to see that, that
he gave such a high recommendation of me from the
previous job that I worked for him on, that he was afraid
that it was going to get him in a bind, and it might result
in the people that was talking union being run off as well
as himself." Edwards also recalled another supervisor,
Ronnie Hancock, asking him, "Your buddy over there,
he's union too, ain't he?" When Edwards said, "Yeah,"
the supervisor asked what position did he hold. And Ed-
wards said he was an organizer. Hancock did not testify,
and Ollis denied having asked Edwards that question. I
credit Edwards instead; his testimony fits the picture as a
whole. Moreover, on another point, Ollis' testimony left
much to be desired. He spoke of another employee,
Patton, being absent 3 days because of trouble with his
girlfriend. The higher supervisor, who also knew about
that absence, admitted instead he was told Patton's ab-
sence was because of a funeral in his family. This was
consistent with Patton's testimony about what he told
Ollis. The attempt by Ollis to put Patton in a bad light
did not enhance his credibility. I find that both Ollis' and
Hancock's questioning of Edwards about his union activ-
ity, and about the union activity of others, were viola-
tions of Section 8(a)(1) of the Act. I also find that Ollis'
statement telling Edwards the employees might be run
off because of their pressing for the Union illegally
threatened discharge, and thereby again violated Section
8(a)(1).
Ollis questioned Edwards on another occasion, still ac-
cording to Edwards, "Bobby came to me and told me
that he had heard rumors on the job that there was a lot
of union talk and he knew that I was a union man, and
he wanted to know if I had anything to do with it." I do
not credit Ollis' denial of this questioning, and therefore
find it another instance of illegal interrogation.
Edwards also testified that one day another admitted
supervisor, Stewart Gentry, asked him about the Union,
and when the employee said he was for the Union, the
supervisor said, "that the union ain't done nothing for
me, and if I ever get a shot at them, any of them, that
they are gone." Loftis also recalled a conversation with
Supervisor Gentry: ". . . he said the Union wasn't worth
a dame and that if he had anybody or know anybody
that had anything to do with it that, you know, that he
would do his best to get them run off." Gentry denied
having made that threat, but I do not credit him. I find
he violated Section 8(a)(1) in both his talks with Ed-
wards and with Loftis.
The nine employees named in the Union's April 26
telegram were terminated from the Boiler No. 2 job on
various dates between May 8 and 28, according to the
complaint.2 There is a confusion in the record as made
by the General Counsel about just when these men were
released or, indeed, dust who was released and named in
the complaint. Four of them did not appear at the hear-
ing-Victor Welch, Bruce Walsh, and two men named
Owens-Benjamin and Danny. A man named Benjamin
Lloyd Owens Sr. testified for the General Counsel, but
he said he was the father of someone else who had
worked on Boiler 2; in any event he also made it clear
he was a general foreman on the project when released,
so he could not have been one of the alleged discrimina-
tees. One man, Edwards, said he left the job on May 13
when he was injured, and was unable to work for 2
weeks. By that time there was virtually no one left on
the job. What "refusal to reinstate" him at that time
means, I do not understand. The company records do
show that all nine of the named men last worked on
varying dates between May 8 and 24. The question is:
Were all of them released exactly on those days because
the Company had learned they favored the Union?
Considering all the related factors, I find the record as
a whole does not prove that complaint allegation. It is
not enough that the Company was opposed to the
Union; that is a clear enough fact. In other circum-
stances, coupled with knowledge of these particular em-
ployees' prounion activities, it might do, as, for example,
had they been summarily discharged in the peak season
of a business, or when there was no other plausible ex-
planation for the dismissals. Here, it is true it was time
for not only these people, but for everybody else to get
off the job.
What the General Counsel really relies on for the in-
ference of illegal motivation are two facts. One is that
these men were capable, desirable employees, as their su-
pervisors admitted. Again and again those who appeared
as witnesses stressed the fact they were not only good
welders, but certified welders. The trouble with this is
that they were not the only certified welders; there were
about 35 or 37 other certified welders on the job, and all
those others were dismissed as well. There was, there-
fore, no selective picking among the skilled workmen as
to who to let go. And while it is true some people re-
mained on the job when these men were sent home, I
have no reason to believe they-the nine committeemen,
as qualified as they were-were more qualified than
others. Merely to show how skilled one group may be
does not serve, absent evidentiary proof, to show the
others were less skilled.
The other fact on which the General Counsel rests is
that the Company knew these were among the prounion
group. There were others, of course, for 35 had signed
union cards, but there is no evidence the Company knew
2 Edwards stopped work on May 13, when he was injured on the job
The complaint about him is ambiguous It gives May 28 as the day he
suffered illegal discrimination, calling that day both a discharge and a re-
fusal to reinstate The Boiler 2 job was completely finished by that time,
so there could have been no discharge then at all The Boiler 3 job did
not start at all until sometime in June, so there could have been no refus-
al to give the man a job there that day From Edwards' testimony about
a conversation with Street at the end of May-"He told me that most of
the people had been laid off, that they didn 't know exactly when Unit 3
was going to go, and he couldn't use me at that time "
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the identity of all the rest. Ergo, according to the Union,
because the Company knew about these nine , it follows
it was influenced by that fact. It will not do in this case.
When General Foreman Street talked to the nine men in
his office, he told them he expected to use them on the
next job, Boiler No. 3. Could not the General Counsel
now say that was a promise of benefit, a bribe offer to
influence them away from their prounion resolve? The
argument would be no less persuasive than the one that
is actually made. Looked at in this light, the Company
was damned if it did and damned if it did not. Merely
putting into the hands of an employer a paper listing
some of the union-minded employees cannot serve as
guarantee of employment, regardless of what the eco-
nomic needs of the Company might be, or of preferential
treatment of one group against another. Cf. Economy
Stores, 120 NLRB 1 (1958).
As already stated, during the week of April 24 to 30
there were about 159 men on the job, with a great many
of them working during that week. During the week of
May 1 to 7, 94 men worked, with 23 men sent home.
The next week 76 men worked, with 46 leaving during
the week. During the week ending May 28, 21 men
worked, but all were sent home by about May 25. Loftis
last worked on May 8; 4 others stopped work that day,
and 29 went off the payroll the day before he left, ac-
cording to the records. Walsh and B. Owens last worked
on May 11; 21 others left the same day. D. Owens and
Teague last worked on May 14; of the 59 men who
worked on May 14, only 11 were still at work on the
start of the following week. In such a picture I cannot
find that these particular men were deliberately selected
out of turn with an unlawful motive. There simply is not
sufficient affirmative proof. However, the theory be
stated, failure to prove a prima facie case , or convincing
proof by the Respondent that it all involved a purely
economic motivation, I shall dismiss this aspect of the
case.
C. Refusal to Hire at Boiler 3-8(a) (3) Violations
The job on Boiler 3 started just a few days after the
last man finished on Boiler 2. Street had been preparing
for it for some time; in fact he had made up a list of
starters that included the nine committeemen whom he
later learned about. They were good people, he very
much liked their work, and much of the work to be done
on Boiler 3 was welding, for which they were well
qualified. Street even told them he was going to use
them on Boiler 3. With him saying he had made up the
list with these names on it, how can I not credit the em-
ployees, several of them who testified he told them he
was planning to use them? Street tried to get around that
by explaining that when he heard, by surprise, that the
Boiler 3 complement would be smaller than he had been
led to believe, he threw his first list away and made a
new one, without the names of any of these men. It was
not a convincing story. I do not say he promised them
employment later as an inducement to quit the Union,
for he may not have had that in mind, but he did say he
would use them.
And when the new job began, the first week, there
were 65 employees present at work; 6 were added,
making it a total of 71 throughout the second week. No
less than 39 of these had just left Boiler 2. At the hearing
an employee witness who had worked on Boiler 2
looked at the Boiler 3 payroll record received in evi-
dence and identified 28 men, exclusive of supervisors, as
people who had also worked on Boiler 2. In his brief,
counsel for the Respondent uses that number to compare
the two payrolls. But on careful examination of the pay-
rolls for both jobs, I find 11 additional names as employ-
ees who were taken from 2 and put on Boiler 3: Billy
Barefoot, Troy Fields Jr., Jeffrey Grove, James Mooney,
John Sims, Randy Keith, Wallace White, Bobby Ollis,
Russell O'Briant, Jeffrey Martin, and Don Ratcliff. But
not one of the nine committeemen was used at Boiler 3
during the full 2 weeks when the plant was in real oper-
ation. The job only lasted just short of 3 weeks, with the
peak period being the first 2 weeks. During the last week
one man , Walsh, was used for only 3 days. When to all
this is added the fact that Moree was so strongly re-
solved to do all he could to keep the Union out of his
business, the inference that the reason not a single com-
mitteeman was taken on at Boiler 3 was to frustrate their
objective, is inescapable.
Street defended his apparent discrimination against
these men by saying he thought it right to prefer those
employees of the Company who had been out of work
for some time. I can see the merit of the position, but it
cannot explain away his hiring 39 of the old cadre with-
out including a single one of the 9 committeemen whose
activities the owner of the Company had announced he
would, if at all possible, stop. There is more to indicate
that Street's real reason for not hiring any of the com-
mitteemen on Boiler 3 was their union activity. He ad-
mitted, several times, telling Edwards his union solicita-
tion had been wrong, that the employees had "harassed"
others, indeed, even saying that some others had left the
job because of it. Street told Edwards, directly, he was
concerned about the reoccurrence of such conduct.
Equating solicitation with harassment is an old story. "I
told Barry [Edwards] that if something came open, if I
put him back to work, I didn't want him to go back up
there interfering with the men because they would walk
off the job. . . . Interfering with the men again with
union activity because he caused the men to walk off the
job once before."
Street said that an employee named "Eldridge" told
him "the boys kept bugging him until he just couldn't
stand it no longer." He even said Eldridge quit because
of it. The Respondent then called employee Eldridge
Meeks as a witness; I take it this was the "Eldridge"
Street had talked about. Meeks said he left work one
day-at about the end of April-"Because I was ap-
proached to sign a union card so many different times
that I just felt that I didn't have no obligation to sign it,
so I quit." Meeks added Edwards had asked him to sign
the card "4 or 5 times a day for about 3 or 4 days."
Meeks returned to work anyway 3 or 4 days later. Ed-
wards' later version was that he only asked Meeks to
sign three times, on consecutive days. Although profess-
POWER PLANT MAINTENANCE CO. 211
ing an antiunion feeling , Meeks admitted he went to the
Union 's hall later asking for work when this Company
no longer needed him. He was clearly exaggerating at
the hearing , and Street was building up on what was no
more than the usual solicitation in any union campaign
into a reason for keeping Edwards off the job on Boiler
3.
Employee Dennis Mitchen testified that about June 3,
as the Boiler 3 job was starting , Street told him Edwards
had come by asking for a job, and that Edwards was "a
good welder . . . good fitter , good rigger , good every-
thing . . . I would like to have fifty more like him . . . I
wish I could hire him but . . . I just wish that he wasn't
messed up with that union ." Edwards said that he was
on the jobsite several days then , always asking for em-
ployment. When he saw others being hired , and as he
was told there was no place for him , he talked to Street.
Street called him aside and said , ;still according to Ed-
wards, "that he hated to tell me, that it couldn't hurt him
any worse if I was his own brother, but he said that he
couldn't hire me because he had some people on that job
that would walk off if he hired any of us union people
and he said that he would rather have me than three men
that he had on the job but he couldn't hire me, that he
hated it." "I told ... Willie Street, that I was an orga-
nizer, that he had put the committee in a bad light be-
cause he wasn 't hiring any of us , that he wasn't hiring
any of us committeemen, and that these people were
wanting to know why they weren't hired, and that's
when he told me that he didn 't hire any of us because if
he hired any of us union boys he would have some
people walk out . . . ." With this, Edwards asked Street
to speak with Shackleford, a union business agent. Again
from Edwards' testimony: "Mr. Shackleford introduced
himself and asked Mr. Street how come he couldn't hire
me; Mr. Street said that he would like to hire us but he
couldn't hire me and the other boys; he hated it; and he
said that he would rather have any one of us than three
people that he had on the job but if he had some non
union people on the job that would walk off."
Street denied that the reason why he did not hire Ed-
wards , or any of the other nine committeemen on Boiler
3, was because of the union activity. But there was the
following in his testimony : "Q. Now let me get some-
thing straight here: You talked about a conversation with
Barry Edwards and you said you didn't want Barry
going up on the job causing trouble? A. That's right,
causing my help to walk off." Given the total circum-
stances of this case , I credit Edwards , and Mitchen,
against Street , and find he actually told them his reason
was fear that the solicitors might upset the other employ-
ees. He had no basis for that assertion.
Another defense argument is that certified welders
were not needed on the next job, and that therefore the
fact that each of the nine committeemen was a very
good certified welder is irrelevant to the case . But the
fact is that welding work was performed by the large
group who worked on Boiler 3, and that many other
welders were taken from the 2 job.
I find that the Respondent deliberately refused to hire
eight of the nine committeemen named in the complaint
for fear they might succeed in their union campaign, and
thereby violated Section 8(a)(3) of the Act concerning
each of them.
Four of the nine listed in the complaint did not appear
at the hearing-Bruce Walsh, Benjamin Owens, Danny
Owens, and Victor Welch. But it is a fact Street had
listed them all in his prepared hiring plan for the next
job and told the men he intended to use them . Regarding
one of the four-Welch, I cannot make a finding that an
unfair labor practice was committed against him. The
payroll records show he last worked on Boiler 2 on May
11. The complaint gives that date as the date of unlawful
discharge . But the complaint also states-very precise-
ly-he was "reinstated May 28 , 1982 ." Everybody left
the 2 job on May 25, but one man, who left on May 26.
Nobody worked there again . Does the complaint mean
Welch was "reinstated" to another project on May 28?
This Company does regularly run more than one job at a
time . I do not know, and the General Counsel offered no
explanation of his complaint about his man . A respond-
ent has a right to consider the complaint against him at
face value , and I am limited rationally to the complaint
as written . Unfair labor practice findings cannot be based
on speculation.
D. Walter Patton Alleged 8(a)(3) Violation
Patton was a fitter on Boiler 2 . He worked 4 years for
this Company, on and off, as he was needed from one
job to another. He was often used as a foreman. He was
released from the Boiler 2 job on May 7 and was not
used on Boiler 3 . The complaint alleges he was illegally
discharged from Boiler 2 and illegally refused a job on
Boiler 3.
At lunch on May 7, sitting at a table with 40 or 50 em-
ployees in the crowded lunchroom , Patton signed a
union authorization card. The sole proof of illegal moti-
vation about him centers on the contention that manag-
ers saw this happen, learned of his prounion attitude, and
therefore fired him later that day for that reason. Sitting
at his table was a foreman , Ray Dunn . At a nearby table
5 feet away was another foreman-Dick Ravel. Patton
said that when this happened , Ollis, a supervisor, was
passing by behind him, how far away "I really don't
know."
Q. When you were sitting at the table on the day
that you were laid off, asking Mr . Edwards for a
union card, do you know if Bobby Ohis was there
when you asked for the card?
A. No, ma'am, I do not.
Q. Where was Ollis?
A. He was behind me . I had my back to him.
Q. And what was the distance between you and
Ollis?
A. I really don't know. I just noticed him when
he walked by me and went to the other table.
Q. Now when did you first notice Ollis?
A. I guess about 5 minutes before we got ready
to go back to the jobsite.
Q. Did you have your union card in your posses-
sion at the time?
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. No, sir, I had just given it back to Mr. Ed-
wards.
Ravell did not testify. Dunn said he did not see Patton
sign the card, and Ollis testified he did not either.
There is an affirmative defense of release for just cause
that more than offsets whatever suspicion may arise from
Patton' s having signed that union card, even assuming
the supervisors saw him do that.
A week earlier, on May 1, Patton's hours of work
were reduced and he was demoted from the position of
foreman over his crew, a position he had held for several
weeks. As Patton himself admitted, Street, the general
foreman, gave him several reasons for the action: "Mr.
Street said that he had been hearing some bad things
about me; he said that he heard that I was sleeping, that
I was smoking marijuana , and was letting people in the
boiler do whatever they wanted, and was not doing my
job and I denied this." Patton denied to Street that he
did all these things, but he did admit to the general fore-
man as follows: "I said `as far as the sleeping,' I said `one
morning we didn't have any material to work with,' and
I said `the job was going slow, that I sat back under
some tubes for about 2 hours, but I was right at my job-
site."' Asked, on cross-examination , had anyone seen him
smoking "pot" in the plant, Patton again and again
equivocated, tried to avoid answering the question. Fi-
nally, came the following: "I had a supervisor walk up
on me and two other guys in 1979; they smelled the
marijuana; but did not actually see anyone smoking it,
and I did admit to it. . . ." Patton also said that on
Boiler 2 he had been "confronted" by his supervisors
about "not doing my job."
Street closed the conversation on May 1 saying "he
would make his decision whether he was going to keep
me or not that afternoon . . . that I was being busted
back to a fitter to my tools and on my pay rate would be
$10 an hour and that I could take it or leave it and I
took it."
Within a day or two Patton took 3 days off from work
for personal reasons, a funeral in the family. The day
after he returned, this was the day he signed the union
card, after lunch he told his supervisor, Ollis, he had to
leave early, again for personal reasons. When he clocked
out later, he was told he was being laid off. He then
asked Blackman, a foreman there, would he be used in
Boiler 3, and Blackman said, "yes, that I would be okay
when they straightened me out." Patton then shook
hands and left. He returned several times to look for
work on Boiler 3, but was told, still as he testified, "that
they were full, that they weren't going to hire anymore
people that day."
At the hearing Street said he released Patton when he
did because his, Patton's, job was finished. I believe him.
There may have been others on the total project still
doing the kind of rigging work Patton was then doing,
but it is a fact people were being released that week in
large numbers and a general reduction in force was
taking place. Not only were others laid off the same day,
but even Dunn, who had replaced Patton as foreman on
their crew, was laid off the same day. What more con-
vincing proof than this that Street was telling the truth
when he said he no longer needed Patton on the job? Be-
sides , if Street saw no reason for transferring Patton to
other rigging work, in some other crew still on the job,
he had ample reason to do so quite apart from anything
that happened the day the man was sent home-i.e., the
business of signing a union card. It must be remembered
that the man had been severely criticized a week before
for what cannot be denied were serious faults on the job.
He was demoted, his hours were cut, and he was told off
in no uncertain terms. But all that happened before any
suggestion of union activity by Patton. He may have had
good reason to ask for 3 days off immediately after that,
but the fact remains the Company was easily able to do
without him, not really needing him at all with the
whole job tapering off. And the very day Patton re-
turned on the job he had to leave early again. I can find
nothing wrong with Street telling him it was time
enough to do without him altogether.
Patton was not a persuasive witness, and I therefore
find his testimony insufficient to prove Supervisor Ollis,
or any other member of management, really knew he
was prounion. But even were I to believe Dunn or Fore-
man Ravell saw him sign the union card that day, I
would still find the real reason why he was chosen for
release that day was because management justly decided
he was undesirable as an employee and no longer
needed.
And if Street, or any other management representa-
tive, did later say Patton would have to straighten out
before he could again work for this Company, it too was
an understandable idea. The phrase is not entirely inap-
posite when a man lazies on the job and smokes "pot."
Street added that he learned, before Patton left, that
there had been stealing going on in the plant, somebody
taking gloves and things that properly should have been
paid for. He said he only learned Patton had been the
guilty one after Patton left. There is testimony by a
former employee about actually knowing that Patton had
stolen things. I do not think it necessary to decide if
Patton was a thief or not. It was enough for Street to
think so even absent proof positive.
The complaint also alleges Patton was unlawfully re-
fused employment at the Boiler 3 job and was again re-
fused employment at another project of the Company at
Bowater, 200 miles away in another city. These conten-
tions rest essentially on the same assertions made with re-
spect to his release from the Boiler 2 job-that manage-
ment knew he had signed a union card, and that Street
felt Patton had to be "straightened out." Again, consid-
ering the general state of affairs in June-with Patton
being only one of who knows how many employees
seeking work-I cannot find that the reason the Compa-
ny did not take him in particular, while turning away ap-
plicants every day, was because of any union activity on
his part. As stated, the credible evidence does not suffice
to prove the managers knew he had signed a card. And
while it is true Street felt the man was undesirable, he
had basis for believing so, perfectly proper reasons. He
even admitted telling the Bowater manager, Robert
Small, that in light of Patton's behavior on the Boiler 2
job he was not a desirable employee, and the Company
POWER PLANT MAINTENANCE CO. 213
therefore "didn't need him." With this, the Bowater
manager even told Patton to save himself the trip to
Bowater. I deem perfectly acceptable Small's statement,
at the hearing, that after hearing Street tell him about
Patton's sleeping on the job, smoking dope, and stealing,
"you can take a barrel of apples and one of them will
[sour] sooner or later."
Besides, there is not even adequate evidence that when
Patton applied, here or there, for work, there was need
for hiring anybody. On his own testimony, when he
went in early June to Boiler 3, to see if there was work
available, he was told "they [the people coming into
work] had been hired earlier and were scheduled to
work on the unit." In July, when he telephoned Manager
Small at Bowater, he was told, still as he testified, "that
the job was full." On August 2 he went to Bowater per-
sonally, with Edwards and Teague„ two of the old com-
mitteemen; all three of them wore Local 30 hats. When
they asked for work, Small told them he had hired all
the people he needed. There is no evidence in this record
to indicate otherwise. Did Small have to find a way to
put Patton to work that day because the man was wear-
ing a union insignia? This seems to be the General Coun-
sel's argument running through the case.
I find this pinpointed allegation of discrimination
against Patton at the Bowater job unsupported by the
evidence in toto.
289 (1950) and Florida Steel Corp., 231 NLRB 651
(1977).3 Nothing that happened after that, anywhere else,
bears any relationship to the make-whole remedy in this
proceeding.
The Respondent must, of course, also be ordered to
cease and desist from further commission of unfair labor
practices it has committed in the past. It must also be or-
dered to post appropriate notices assuring its employees
of future neutrality. The notices must be posted at all
projects carried on by the Company during the 60-day
posting period starting the day it first posts the notice.
This remedy is necessary because of the shifting nature
of employment with the Company, and the continuing
rotation of employees from one project to another. The
Respondent must also be ordered to mail copies of the
notice to the eight employees who actually suffered
direct discrimination, as found here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of Respondent described in section I, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
In the course of examining witnesses, the General
Counsel evaded direct answers to the question: Was he
contending there had been illegal discrimination prac-
ticed by the Respondent when other employees applied
for work at Bowater? From the transcript:
JUDGE Ricci: Mr. Brown, is it a contention of
the General Counsel that at this other place where
this witness said that he applied for work like the
main office, and he was not hired, that a further dis-
crimination or unfair labor practice, 8(a)(3) com-
plaint on those occasions would be warranted?
MR. BROWN: . . The General Counsel's posi-
tion . . . is . . . that the employees were not hired
at Roxboro only; however, I think that the testimo-
ny may bear going into, the fact that some of the
employees applied at places and were not hired, to
reflect upon Roxboro.
I do not understand this sort of reasoning. This entire
case is limited to (1) alleged illegal discrimination of 10
men at Boiler 2; (2) alleged illegal refusal to hire nine
men at Boiler 3; and (3) alleged refusal to hire Patton at
Bowater. I have found that the Respondent improperly
denied employment to eight committeemen at Boiler 2.
Had they been hired they would have worked there
about 2 weeks, some of the eight even less, unless they
were entitled to preferred treatment for being known
union members. They must be made whole for what
earnings they lost with backpay and interest in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
CONCLUSIONS OF LAW
1. By refusing to hire known union activists at its
Boiler 3 job in Roxboro, North Carolina, for the purpose
of curbing their union activities, the Respondent has vio-
lated and is violating Section 8(a)(3) of the Act.
2. By the foregoing conduct, by questioning employees
about their union activities and the union activities of
fellow employees, and by threatening to discharge em-
ployees in retaliation for the union activities, the Re-
spondent has violated and is violating Section 8(a)(1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 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-
ed4
ORDER
The Respondent, Power Plant Maintenance Co., Inc.,
Roxboro, North Carolina, its officers, agents , successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to hire employees because of their known
union activities and in order to curb their union activi-
ties.
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
4 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
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Questioning employees about their union activities
and about the union activities of their fellow employees.
(c) Threatening to discharge employees in retaliation
for their union activities.
(d) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Barry Edwards, Bill Teague, Bryan
Walsh , Bruce Walsh, Benjamin Owens, Danny Owens,
Henry Loftis, and Kevin Gainey for any loss of earnings
that they may have suffered by virtue of the discrimina-
tion against them by paying to them an amount equal to
what they would have earned in consequence of the ille-
gal discrimination against them, with interest.
(b) 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.
(c) Post at each and every one of the job projects
being carried on by the Respondent at the time of post-
ing of this notice, copies of the attached notice marked
"Appendix."a Copies of the notice, on forms provided
by the Regional Director for Region 11, after being
signed by the Respondent 's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees 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 material.
(d) Mail to each of the eight employees named above
who suffered illegal discrimination copies of said notice.
(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.
5 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 Nation-
al 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 "