Robbins Engineering

National Labor Relations Board - Board Decisions

Jun 9, 1993

311 N.L.R.B. 1079 (N.L.R.B. 1993)

1079
311 NLRB No. 109
ROBBINS ENGINEERING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 All dates refer to the 1991 calendar year unless shown otherwise.
2 Respondent concedes the Board’s jurisdiction in this matter. Its
indirect inflow annually exceeds the dollar volume established by the
Board for exercising its statutory jurisdiction over nonretail enter-
prises. Accordingly, I find that jurisdiction to resolve this labor dis-
pute lies with the Board.
California Oilfield Maintenance, Inc. d/b/a Robbins
Engineering and Local Union No. 460 of the
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL–
CIO. Case 31–CA–18828
June 9, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issue is whether the Respondent un-
lawfully warned and discharged nine employees for en-
gaging in protected concerted activities.
On January 29, 1993, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions. The General Counsel
filed cross-exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, California Oilfield Mainte-
nance, Inc. d/b/a Robbins Engineering, Bakersfield,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Bernard Hopkins, Esq., for the General Counsel.
Russell S. Brown III (Russ Brown Associates), of Anaheim
Hills, California, for the Respondent.
Eugene Miller, Esq., of Seaside, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Local
Union 460, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO (Union) filed an unfair labor
practice charge against California Oil Field Maintenance, Inc.
d/b/a Robbins Engineering (Company or Respondent) on
May 8, 1991.1
On June 28, the Regional Director for Region 31 of the
National Labor Relations Board (NLRB or Board) issued a
complaint alleging Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act (Act). The gravamen of the
complaint is that Respondent unlawfully warned and dis-
charged nine employees on April 29.
Respondent answered the complaint on July 12 denying
that it engaged in the unfair labor practices alleged.
I conducted a hearing on the matter as joined on April 22
and 23, 1992, at Bakersfield, California. After carefully con-
sidering the record, the demeanor of the witnesses, and the
posthearing brief filed by the General Counsel, I find Re-
spondent engaged in certain unfair labor practices alleged
based on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges that nine company employees en-
gaged in a concerted work stoppage on April 25 and that,
thereafter, the Company issued written warnings to each em-
ployee engaged in that work stoppage. The complaint further
alleges that the Company discharged the same nine employ-
ees on April 29 because of their union and protected con-
certed activities.
Respondent’s answer, as amended at the hearing, admits
the preliminary jurisdictional and agency allegations of the
complaint but denies that it engaged in the unfair labor prac-
tices alleged. The answer contains no affirmative defenses
but Respondent, without objection, proffered evidence at the
hearing that one involved employee, Harold Sisemore Jr.,
was an independent contractor, and that two other involved
employees, George Ferguson and Michael Flowers, quit their
employment with Respondent.
B. The Evidence
1. Background
Respondent, a California corporation which maintains its
principal place of business at Newhall, California, is engaged
in general engineering contracting services in area oilfields.2
During the period at issue, Respondent maintained an office
in Bakersfield, California, managed by Ron Paulk. The dis-
pute itself arose at Respondent’s construction site located on
Mobil Oil Company’s Moco Lease, a large oilfield about 50
miles southwest of Bakersfield between Taft and Maricopa,
California.
Mobil and Respondent entered into a contract for work at
the Moco Lease in late January. That contract called for the
commencement of work in mid-February and its completion
in the latter part of June. Essentially, the work was located
in two areas of the Moco Lease about a mile apart from each
other which came to be designated as the K-Zone and the
H-Zone. Respondent designated separate foremen to oversee
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A rig-welder, as used here, refers to a welder who supplies his
own welding equipment, essentially a truck-mounted welding ma-
chine and the attendant welding paraphernalia.
4 Sisemore and Ferguson appear to have been working a substan-
tial distance from the other welders and were unaware that a walkout
had occurred until they were told about it by Aldridge and Yocum
at about 11 a.m. According to Sisemore, one of the supervisors
asked if they were ‘‘going to leave too’’ and he responded that they
would ‘‘probably . . . leave in support of it too.’’ Sisemore testified:
‘‘[W]e said we were not going to quit, that we would come back
once things were straightened out, but we would leave in support of
the other welders.’’
work in the separate zones, James Aldridge in the H-Zone
and Irving (Muff) Yocum in the K-Zone. Paulk, Aldridge,
and Yocum are supervisors and agents within the meaning of
the Act.
Among other items, the contract called for the installation
of a considerable amount of pipe requiring the services of a
number of pipe welders. By the time the events giving rise
to this dispute arose on April 25, Respondent had hired a
crew of about 15 rig-welders3 as well as a similar number
of welder-helpers and a few other craftsmen so that its total
employee complement at the Moco Lease site exceeded 30
employees. Paulk, it appears, hired all employees for the
Moco Lease job from a variety of sources.
In the days preceding the events described below, several
of the rig-welders had executed cards authorizing the Union
to act as their collective bargaining representative. On April
24, or immediately prior to the events relevant here, the
Union filed a representation case petition at NLRB Region
21 in Los Angeles and actual service of the petition on Re-
spondent was completed on April 26.
2. The relevant April 25 events
About 9:30 a.m. on Thursday, April 25, an oil-head lo-
cated about half a mile to the north of the K-Zone blew out.
A geyser of oil, steam, and paraffin particles resulted which
reached several hundred feet in height. The prevailing winds
caused a mist of this mixture to drift southward over a part
of the K-Zone.
Orville Burks, a company rig-welder, was in the affected
K-Zone area and witnessed the eruption of the geyser. He
soon noticed the mist of oil and paraffin falling in the area
where he was working and became concerned about the pres-
ence of poisonous hydrogen sulfide gas in the mixture.
Shortly thereafter, Donald Jones, another rig-welder reas-
signed to a location near Burks, arrived to start work. Burks
immediately called Jones’ attention to the geyser and the
mist of material falling in the area where they were located.
Jones said that Burks pointed to oil beading up on the hood
of his truck and shortly Jones noticed a fine oil mist was
coating his shirt, glasses, hands, truck ‘‘and everything else
that was in the vicinity.’’
By the time Jones realized what was going on, Aldridge
and Yocum had arrived in the area. Jones promptly ap-
proached to two supervisors to find out if they expected him
to work in the oil mist which he considered unsafe. Even by
Aldridge’s account, Jones stated that he could not work
under such conditions and asked what they wanted him to
do. Aldridge’s testimony concerning the response to Jones is
as follows:
Q. Okay, and did you respond to him . . . at that
time?
A. Muff looked at me, and he said, ‘‘Well, what do
you think? What can we do James?’’
And I told Muff—I didn’t actually state it to Donnie.
I said, ‘‘Muff,’’ I said, ‘‘if he can’t work in this oil—
’’ and there was no other place we could move him
cause all the welders had the spots taken up. I said, ‘‘I
guess we just have to roll him up to go to the house.’’
And he interpreted that that I was firing him, but I
did not. Did not mean that at all. And I even went—
then he blew up and went to cussing and stomping, you
know, mad, cause he just—thought he just got fired.
And I went up to Donnie then and I tried to explain
to him. I said, ‘‘No, Donnie, you don’t understand. This
means you can go home for today.’’ But there was no
talking to him at this point. It was just a
miscommunication problem, I guess.
Jones provided a similar account. However, Jones asserted
that the attempt to convince him that he had not been fired
did not occur until somewhat later after he had told some
other welders about the ultimatum and they, too, decided to
join him in leaving the job site. Moreover, Jones asserted his
belief that work was available in several unaffected areas.
Regardless, nine of the welders left the jobsite that morning
as a result of the confrontation between the two supervisors
and Jones. They were: Jones, Burks, Gary Patterson, Curtis
Taylor, Rick Arlos, Agee Holloway, Mike Flowers, George
Ferguson, and Harold Sisemore Jr.4
Paulk said that he learned of the walkout shortly before
noon on April 25 through a telephone call from one of the
job supervisors. He left for the job immediately. As he ap-
proached the entrance to the Moco Lease, he saw four of the
welders’ trucks parked along the roadway so he stopped
briefly to ask that they move their trucks and to find out
what was happening. At this time he learned about the oil
spray which was still in progress when he later surveyed the
site.
After speaking with the employees who had remained at
work, Paulk visited with Jack Merrill, a Mobil field manager
at the site. Paulk said that Merrill was very concerned about
the walkout because of the effect it would have on the work
schedule. Paulk assured Merrill that he would get the prob-
lem resolved.
Following his visit with Merrill, Paulk returned to his of-
fice in Bakersfield. That afternoon Arlos, Patterson, Hollo-
way, Burks, Taylor, and Ferguson came to his office to dis-
cuss the situation. Flowers joined the discussion later; Jones
and Sisemore did not participate in this conference. After
discussing the situation and assuring the welders that Jones
had not been fired, Paulk said that they managed to ‘‘patch
things up . . . and they were more than willing to come
back to work.’’ In accord with an earlier arrangement made
with Merrill, Paulk instructed the welders to report the fol-
lowing morning (Friday) and work until they had made up
the time lost from the walkout.
After the welders departed, Merrill telephoned Paulk to
cancel plans for work on Friday because Merrill had decided
that ‘‘[i]t’s . . . not worth my time and maybe not worth
1081ROBBINS ENGINEERING
5 By Sisemore’s account, this conversation occurred the following
morning but otherwise his testimony concerning its substance does
not vary significantly from Paulk’s version.
6 Following his conversation with Paulk, Sisemore telephoned
Flowers with the report of his discharge. Flowers expressed a mod-
icum of disbelief and promised to call Sisemore back. When Flowers
did so, he told Sisemore that he was to report to the job with the
rest of the crew on April 29.
7 Initially, Yocum said Patterson first approached him about
Sisemore. In the testimony quoted below, however, Yocum eventu-
ally expressed some doubt whether Patterson or one of the others
initiated the Sisemore question. Ferguson claimed that he raised the
Sisemore issue with Yocum. Although this divergence is of little or
no consequence, it seems probable that Ferguson’s recollection is
more likely correct as he had been practically the only welder who
ever worked close to Sisemore. Patterson did not testify.
8 While the welder’s mulled the Sisemore matter, each of their
helpers literally had nothing to do and, hence, were also idled.
theirs.’’ Merrill also suggested that, by waiting until Monday
to start again, the added time would provide a greater oppor-
tunity for the welders to ‘‘cool down.’’
Fearing that he would be unable to reach all the welders
by telephone, Paulk went to the Poorhouse Bar, a local tav-
ern frequented by the welders. He located Arlos, Patterson,
and Taylor there and informed them of the change in plans.
They agreed to pass the information on to the other welders.
That evening Paulk said that he received a telephone call
from Sisemore who said that he had learned the other weld-
ers would be allowed to return to work and inquired about
his status. Paulk told Sisemore that he was ‘‘really upset’’
with him because he had walked off after working only 4
hours and in a location which was unaffected by oil geyser.
Accordingly, Paulk told Sisemore at that time that ‘‘I am not
going to use you.’’5 No evidence indicates that Paulk had in-
formed the group of welders who met in his office earlier
that afternoon of his intent to terminate Sisemore if, in fact,
he had formulated such an intention at that time. However,
this information was transmitted to Foreman Yocum at some
time prior to his reporting to the jobsite the next Monday
morning.
3. The relevant April 29 events
On Monday, April 29, all the welders who had walked out
the previous Thursday reported for work at the regular time,
including Sisemore.6 The first item on the agenda was a reg-
ular safety meeting conducted primarily by the Company’s
safety director. Toward the end of the meeting, which lasted
between 30 and 45 minutes by most estimates, Merrill and
a Mobil safety representative appeared at the meeting and
witnessed the events which followed.
According to Yocum, the nine welders paid only scant at-
tention to the safety meeting; he said they were congregated
in a separate group engaged in their own discussions but he
made no effort to interfere for fear of provoking the group
again. When the meeting concluded, Yocum called out for
everyone to go to work.
Thereafter, Yocum was approached with an inquiry about
Sisemore’s status.7 Yocum’s testimony about what occurred
at that time is as follows:
Q. Okay, now, at some point after this [Yocum’s call
for the employees to go to work], there was a question
about Harold Sisemore, is that correct?
A. Yes, there was. One of the people I mentioned,
Pat Patterson, came over and addressed me and said,
‘‘Ronnie [Paulk] said that all the welders, all of us
were coming back to work.’’
And I said that, ‘‘Ronnie told me all of you were to
come back to work with the exception of Harold
Sisemore.’’ And he [Patterson] told me, ‘‘We need to
have more of the little meeting. I’ll let you know in a
few minutes for going back to work.’’
Q. Okay, and so what did you do next?
A. I called Ronnie on the phone and told him of the
events that happened and said that I thought that every-
thing was resolved, and I told him that they were hav-
ing their own little meeting, and I didn’t know if it was
resolved or not, and I was worried about how it was
going to affect the job because there’s deadlines on the
jobs and schedules that Mobil’s asking you to meet,
and the Mobil guys that I said came towards the last
of the meeting were there, and they were asking me
what the problems were, this or that. And I explained
all that to Ronnie.
Later, on cross-examination, Yocum added some clarity
about the Monday morning events:
Q. And are the welders all being paid for this time
[during and after the safety meeting]?
A. If they’re coming back to work. That was what—
my question. I didn’t understand what the meeting was
about, and then Pat Patterson when he said, We need
to finish our little meeting, and we’ll let you know
whether we’re coming back to work or not,’’ I didn’t—
you know, I was still in the dark whether they were
coming back to work. I didn’t really know what was
going on. I thought they were just coming back to work
normally, that the situation from before was resolved,
and we were just going to go ahead with the job.
. . . .
Q. Couldn’t have been one of the other guys. You
remember it was Patterson.
A. I remember Patterson was the one that asked
me—told me that we need to have the little meeting.
I’m not—I can’t remember which one it was that asked
me if [Sisemore] gets to go back to work. I believe that
was Patterson to[o].
But Patterson is the one that addressed me and said,
‘‘We need to have a little bit more of a meeting, and
I’ll let you know if we’re going back to work.’’
Q. Did he tell you what the meeting was about?
A. No.
Q. Did you ask?
A. I—I didn’t ask what the meeting was about. They
told me that they had a problem with that because Har-
old Sisemore wasn’t allowed to go back to work. So I
took for granted that that’s what it was about.
Yocum estimated that he placed his initial phone call to
Paulk about 6:40 a.m. Some 20 minutes later he placed an-
other phone call to Paulk in order to report that the protesters
still had not concluded their meeting and returned to work.8
Paulk told Yocum that he was leaving for the jobsite imme-
diately. Shortly after Yocum concluded this call, the protest-
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Many experienced welders, such as several here, routinely re-
move the safety guards after purchasing new grinders and throw
them away as they find the guards to be a nuisance while working.
Apparently, however, the Company’s safety director went to some
length at the April 29 safety meeting to stress the importance of the
guards and the potential liability to the Company and the welder
should a helper suffer injury from an unprotected grinder.
10 Paulk implicitly acknowledged that no knowledge of sabotage
existed when the welders were terminated but asserted that a weld-
ing machine carburetor and some timbers were later found ‘‘inside
a pipe that one of the nine welders were working on.’’ Because this
largely unsubstantiated claim was unknown at the time of the dis-
charges, I have accorded no weight to it.
ers ended their meeting and Patterson reported to Yocum that
they were returning to work without Sisemore. Sisemore said
that he urged the welders to return work to avoid jeopard-
izing their own welfare.
However, two welders, Ferguson and Flowers, asked for
and received permission from Yocum to leave in order to
purchase guards for their grinders in light of a announcement
at the safety meeting that morning to the effect that welders
would not be permitted to work without them.9 Both returned
to Bakersfield for this purpose, almost an hour’s driving time
one-way.
Paulk said that he ‘‘was pretty well disgusted with the sit-
uation’’ after Yocum’s second phone call. He attempted to
learn what had occurred when he arrived at the Moco Lease
site that morning and met several times with Mobil officials
who pressured him to solve the welder’s problem or risk re-
moval as a contractor on the site.
In addition, Paulk said that the Mobil officials expressed
concern about potential sabotage by the welders and notified
him that they planned to start x-raying welds almost imme-
diately. For that reason, Paulk instructed Yocum to halt the
welders’ work for the day and have them report to the Ba-
kersfield office the following morning, a departure from their
routine of reporting directly to the Moco Lease site.
When Yocum later testified, no inquiry was made con-
cerning the midmorning cessation of work on April 29. Ap-
parently, some of the welders either were told outright they
were being terminated at that time or reached that conclusion
from the circumstances. Enroute back to the Moco Lease
after purchasing grinder guards, both Ferguson and Flowers
encountered some fellow welders who reported that the crew
had been fired. Consequently, neither Ferguson nor Flowers
returned to the job that morning.
Nonetheless, Paulk claimed that he did not reach the deci-
sion to ‘‘replace’’ the eight welders who delayed returning
to work that morning until after he had returned to his office
from the Moco Lease on April 29. By his account, the the
welders would have first learned of their terminations when
reporting to the Bakersfield office the following morning. Of
the eight, only Ferguson and Flowers failed to report on the
morning of April 30; they stopped at the office later in the
week for their final checks.
On the afternoon of April 29, Paulk prepared termination
notices for all nine of the welders who engaged in the April
25 walkout and the April 29 jobsite meeting. Six of the
three-page termination packets—those of Arlos, Burks,
Holloway, Jones, Patterson, and Taylor—are virtually iden-
tical. On each of these six termination notices, the listed rea-
son for termination is: ‘‘Insubordination on 4/25/91 &
4/29/91 noncompliance with C.O.M.I. supervisors.’’ Two
employee incident reports—one dated April 25 and the other
dated April 29—were appended to these termination notices.
The former describes the April 25 walkout, lists eight of the
nine employees involved, and warns that termination will re-
sult if the conduct ‘‘should happen again.’’ The latter notes
that the welders ‘‘met off to the side after the [the April 29
safety] meeting, discussing what they should do about a
welder that was replaced on 04–25–91’’ for approximately 1
hour and failed to comply with the directions of their super-
visors to return to work.
Sisemore’s termination documents are identical except that
the reason for termination listed on his employee termination
notice states: ‘‘Quit—Rolled Up’’ and his departmental des-
ignation is listed as ‘‘Subcontractor.’’ The same two em-
ployee incident reports were appended to his termination no-
tice.
The employee termination notices of both Flowers and
Ferguson likewise reflect that they quit. The employee inci-
dent reports dated April 25 and April 29 were appended to
Flowers’ termination notice but not to Ferguson’s. In fact,
Ferguson is not named on any of the incident reports of the
other employees as a participant in the walkout. Of the nine
employees terminated, only Flowers, regarded by Paulk as a
close personal friend, was deemed eligible for rehire.
Paulk testified that his decision to terminate the welders
was based on Mobil’s threats to terminate the Company’s
contract for failure to meet the the job schedule; the welders’
lack of attention at the April 29 safety meeting; the welders’
failure to return to work immediately after the safety meeting
as ordered; and his concern about potential sabotage by the
welders.10
4. Sisemore’s status
Sisemore is a licensed contractor although he has never
worked as a contractor. When he applied for employment
with Respondent, he applied for work as a ‘‘contract weld-
er,’’ a term, according to Sisemore, which is used inter-
changeably with ‘‘rig-welder’’ in the industry.
As a matter of policy, Respondent will not pay welders it
employs by split check if the welder has a contractor’s li-
cense. Thus, Paulk testified:
[I]f I know he has a contractor’s license, I will not hire
him as a split check. He will automatically be hired as
a independent contractor. It’s just a policy we have as
an internal policy of our Company that if they have a
license, they’re going to use it.
Hence, Sisemore was paid for the limited time he was em-
ployed by Respondent on a single check at the rate of $35
per hour with no tax deductions. Other welders were com-
pensated on a split check system; they were paid $12 per
hour for labor with the usual employee tax deductions and
$20 per hour, without deductions, for rig rental.
Paulk said that Sisemore did the same work with the same
supervision as other welders the Company employed on the
Moco Lease project. When Sisemore started at the Moco
Lease on April 25, he was led to the site by Yocum and
turned over to Aldridge who assigned him to work with, or
in the vicinity of, Ferguson who was concededly an em-
ployee. Paulk said that Sisemore would not have been free
1083ROBBINS ENGINEERING
11 Associated General Contractors, 280 NLRB 698, 701 fn. 6
(1986).
12 Fort Wayne Newspapers, 263 NLRB 854, 855 (1982).
13 See generally Glaziers Local 513 (Custom Contracting), 280
NLRB 974 (1986), in which the Board determined that nominal part-
ners in that company were simply routine supervisors and employees
based on evidence showing that they rarely, if ever, exercised true
partnership control. Form without substance lacks legal significance.
14 R. L. Stott Co., 183 NLRB 884, 885 (1970).
to hire his own employees for the project without his ap-
proval. Sisemore testified that he was bound by the work
hours, breaks and lunch periods established by the Company
and otherwise lacked the freedom to decide on the order of
tasks he was assigned to perform.
C. Further Findings and Conclusions
1. Sisemore’s status
Sisemore’s status is a significant threshold issue. Section
2(3) of the Act defines the term ‘‘employee’’ to include any
employee . . . and shall include ‘‘any individual whose work
has ceased as a consequence of, or in connection with, any
current labor dispute . . . but shall not include . . . any indi-
vidual having the status of an independent contractor.’’ Gen-
eral agency principles, paramount among which is the
‘‘right-to-control,’’ apply to the determination of whether an
individual is an employee or independent contractor.11 The
right-to-control test is often summarized in this fashion: If
the person for whom the services are performed retains the
right to control the manner and means by which the results
are to be accomplished, the person who performs the services
is an employee; if only the results are controlled, the person
who performs the services is an independent contractor.12
Viewed in context, the Company’s claim about Sisemore’s
status would mean that the welders’ work at the Moco Lease
project on April 25 was performed by a crew which con-
sisted of 14 welder employees, 15 welder-helper employees,
and Sisemore, an independent contract welder. This perspec-
tive alone raises some reasonable skepticism.
Although Sisemore readily admitted that he possessed a
contractor’s license, he asserted that he had never before
worked as a contractor. Because Sisemore worked as a part
of an integrated crew at the Moco Lease, he necessarily
lacked control over his hours of work, including break peri-
ods and lunchtimes. Sisemore’s lack of authority to hire his
own employees without prior company approval is also in-
dicative of a narrowed degree of control possessed by him
on this job. Likewise, Sisemore concededly was subject to
the same supervision as other employees and testified with-
out contradiction that he lacked authority to even prioritize
assigned tasks. Put another way, he plainly understood that
he was expected to do precisely what his foreman told him
to do.
Furthermore, any opportunities for earnings or profit under
the system in effect at this jobsite were limited solely by the
number of hours actually worked and Sisemore’s hours of
work were strictly controlled by the Company. As the weld-
ers owned their own welding rigs, they obviously had an op-
portunity for other earnings outside their regular Company
work hours but the outside opportunities available to
Sisemore were no different than those available to all rig-
welders. Moonlighting by skilled tradesmen and small busi-
ness entrepreneurial activity are not synonymous.
Little or no significance can be attached to the fact that
Sisemore furnished his own welding rig; even those welders
who are conceded to be employees furnished the same equip-
ment on a rental basis, a common industry practice. The
Company provided the same ancillary equipment to Sisemore
and all other welders.
The mere fact that Sisemore held a contractor’s license
played no part in the nature or scope of the duties assigned
to him and vested him with no characteristics which would
distinguish him from the other welders while actually at
work on the Moco Lease project. The terms of compensation
and all other conditions of work were unilaterally set by the
Company. Sisemore was free only to take it or leave it.
This Company’s policy of seizing on the mere possession
of a contractor’s license to determine the manner of payment
for services rendered, i.e., single check with no deductions
vs. split payments with deductions from one portion, is no
substitute under the right-to-control test for relinquishing ac-
tual control to the service provider for determining the man-
ner and means of achieving the results desired.13 As
Sisemore clearly lacked the right to control the manner and
means of the services he performed for Respondent, I find
that he was an employee and not an independent con-
tractor.14
2. The alleged unfair labor practices
These factual conclusions are overwhelmingly supported
by this record: (1) Eight of the Company’s welders engaged
in a concerted work stoppage on April 25 to protest the
Company’s insistence that Donald Jones either work in the
ongoing oil shower or ‘‘roll-up and go to the house’’; (2)
Sisemore was discharged on April 25 for engaging in the
work stoppage that day; (3) on April 29 eight of the welders
either continued the prior work stoppage or commenced a
new one while they decided among themselves whether or
not they would work in view of Sisemore’s April 25 dis-
charge; (4) the eight welders who participated in the April
29 work stoppage were discharged on April 30 for having
done so; (5) the Company’s knowledge about the Union’s
NLRB petition for a representation election played no appar-
ent role in the discharge of nine welders at issue.
Section 7 of the Act, establishes the right of employees
‘‘to engage in . . . concerted activities for the purpose of
. . . mutual aid or protection.’’ Section 8(a)(1) protects this
right by making it an unfair labor practice for an employer
‘‘to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in [S]ection 7.’’ Further perti-
nent here is Section 2(9) which defines a labor dispute as
‘‘any controversy concerning terms, tenure or conditions of
employment’’ and Section 2(3) which, as seen above, defines
an employee to include employees whose work has ceased
due to a labor dispute.
Unrepresented employees who engage in a peaceful work
stoppage to protest unacceptable working conditions or the
termination of a fellow employee are engaged in concerted
activity within the meaning of Section 7 and a labor dispute
within the meaning Sections 2(9) and 2(3) of the Act, and
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Quality
C.A.T.V., 278 NLRB 1282 (1986); Go-Lightly Footwear, 251 NLRB
42 (1980).
16 Sisemore’s termination was obviously the focus of the Monday
morning group discussions. The evidence strongly suggests that most
of the employees learned for the first time that morning that not all
of Thursday’s protesters would be returning to work as Paulk had
promised. Hence, even if they were grouped together in their own
discussion of this matter during the safety meeting as the Company’s
witnesses charged, I find that fact of no moment here. Rather, it is
merely indicative of the fact that the work stoppage was continuing
(or beginning anew) with the publication of the news regarding
Sisemore. However, it is noteworthy to observe that the employee
incident reports state that the Monday morning group meeting oc-
curred ‘‘after’’ the safety meeting.
17 Yocum claimed only that he could not recall giving Ferguson
and Flowers permission to go buy grinder guards. I have credited
Ferguson and Flowers on this point not only because of Yocum’s
failure to clearly contradict their claim but also because of the prob-
ability that they left for that reason in light of the safety directive
announced on the morning of April 29 and because of their obvious
certainty while testifying about their absence that day.
18 The word ‘‘replace’’ was chosen by Respondent’s counsel in
framing his question. In fact, Paulk discharged all eight before he
replaced any of them.
19 Sisemore said that Ferguson joined him in leaving the job and
they later met with others who walked off on April 25 at a local
restaurant. Paulk said that Ferguson was present for his meeting with
the protesters at his office on the afternoon of April 25. Insofar as
is known, those welders who did not join the walkout on April 25
continued to work throughout that day.
employers who discharge workers for engaging in this activ-
ity protected by statute violate Section 8(a)(1) of the Act.15
The factual parallels between the origins of this dispute
and the dispute in the seminal Washington Aluminum case
are virtually indistinguishable. Both here and in that case the
walkout followed an assertion by a single employee about
the immediate working conditions, here an oil mist and there
a cold, unheated plant. Here one employee, Jones, com-
plained about the oil mist and was given the option of work-
ing in the mist or going home; there one employee accepted
his foreman dare and announced that he was leaving rather
than working in an unheated building. In each case, as others
learned of the protest on the part of their fellow worker, they
joined in leaving work.
In light of the foregoing factual findings concerning the
nature of this the April 25 walkout, Respondent unquestion-
ably violated Section 8(a)(1) by its discharge of Sisemore for
his participation in that walkout. Subsequently, the refusal of
Thursday’s remaining protesters to return to work until they
resolved among themselves whether to go back to work with-
out Sisemore precipitated—as shown conclusively by Re-
spondent’s own April 29 employee incident reports—their
discharges the following morning.16 As the remaining eight
employees were discharged for engaging in a work stoppage
that concerned the continued employment of one of the origi-
nal protesters, I further find that Respondent violated Section
8(a)(1) of the Act by that action. Likewise, the April 25 em-
ployee incident reports which warn that employees will be
terminated for engaging in further work stoppages similar to
the protected work stoppage that day also violate Section
8(a)(1) of the Act.
In reaching the foregoing conclusion concerning the April
30 discharges, I reject the claim made at the hearing that
Ferguson and Flowers quit. Both testified without contradic-
tion that they were granted permission by Yocum to absent
themselves from the job on April 29 to buy grinder guards.17
Their failure to return to the job that day resulted from news
received from other employees that they had been fired.
Even by Paulk’s account, no work would have been available
if they had returned to the Moco Lease on April 29.
But more importantly, Paulk initially testified that he de-
cided to ‘‘replace’’ all eight on the afternoon of April 29.18
The employee incident report he prepared for Flowers cor-
roborates this initial testimony as it reflects, contrary to the
accompanying employee termination notice, that Flowers,
like the other protesters, was being terminated for partici-
pating in the April 29 work stoppage.
Apparently no employee incident reports were ever pre-
pared for Ferguson and his name is not listed among those
who engaged in the walkout on the employee incident reports
prepared for either April 25 or 29. However, both Sisemore
and Paulk confirm that Ferguson participated in the April 25
walkout.19
Paulk claimed that both Flowers and Ferguson quit and
that he received inquiries later in the week of April 29 from
new employers asking for an evaluation of their work. Both
denied they worked for the identified employers following
their employment with the Respondent.
Considering all the extant circumstances, I find that Re-
spondent’s claim that Ferguson and Flowers voluntarily quit
to be little other than a disingenuous afterthought, worthy of
no credit, probably resulting from the fact that neither re-
ported to the office on the morning of April 30 to receive
official notification of their termination. This conclusion is
strongly supported by Paulk’s initial testimony that he de-
cided to terminate all of the remaining protesters on the
afternoon of April 29, the Flower’s April 29 incident report
reflecting that he was being terminated, and the unusual lack
of effort on Paulk’s part to communicate contrary informa-
tion to Ferguson even though he would have been clearly in
need of welders after discharging two-thirds of the crew.
Apart from timing, no evidence exists to support a causal
relationship between the filing and service of the representa-
tion petition and any of the discharges here. In view of that
fact, and indisputable evidence that the discharges were moti-
vated by the walkout, I find that General Counsel’s 8(a)(3)
allegation lacks merit.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. 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.
1085ROBBINS ENGINEERING
20 Dean General Contractors, 285 NLRB 573 (1987). In deter-
mining whether or not an offer of reinstatement is required in any
particular instance and in determining the length of all backpay peri-
ods, due consideration should be accorded to the employment his-
tory, seniority, and skills of the Moco Lease welders who were not
terminated on April 30 and of any welders hired to replace the un-
lawfully discharged welders.
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
22 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Mailed by Order of the
National Labor Relations Board’’ shall read ‘‘Mailed Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. By threatening to terminate employees for engaging in
activities protected by Section 7 of the Act in the form of
its employee incident reports dated April 25, 1991, Respond-
ent engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging Harold Sisemore Jr. on April 25, and by
discharging Rick Arlos, Orville Burks, George Ferguson,
Mike Flowers, Agee Holloway, Donald Jones, Pat Patterson,
and Curtis Taylor on April 30, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The General Counsel failed to establish that Respondent
engaged in any unfair labor practice within the meaning of
Section 8(a)(3) of the Act.
6. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
The Board’s typical order in unlawful discharge cases re-
quires the offending employer to offer immediate reinstate-
ment with backpay and interest. Notwithstanding that the Re-
spondent’s Moco Lease project, where the affected employ-
ees were employed, is now completed, a reinstatement and
make whole remedy is appropriate. This is especially true
where, as here, preliminary discussions had occurred between
Respondent’s supervisors and some of the affected welders
concerning future employment opportunities with Respond-
ent. Implementation of the reinstatement and backpay order
at the compliance stage of this proceeding shall be governed
by the Board’s decision in the Dean General Contractors
case.20
In the event it is determined during the compliance pro-
ceeding that reinstatement is appropriate, Respondent must
immediately offer in writing to reinstate each unlawfully dis-
charged employee for whom reinstatement is deemed appro-
priate to his former position or, if that position no longer ex-
ists, to a substantially equivalent position without prejudice
to his seniority or other benefits. Respondent must also make
the employees unlawfully discharged here whole for the loss
of pay and benefits suffered by reason of their unlawful dis-
charge. Backpay, if any, shall be computed on a quarterly
basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Amounts due trust fund
accounts on behalf of any unlawfully discharged employee
here shall be determined in accord with Merryweather Opti-
cal Co., 240 NLRB 1213 (1979).
Respondent must further expunge from any of its records
any reference to Sisemore’s April 25 discharge and the April
30 discharges of the other eight employees at issue in this
case, including the April 25 employee incident reports. Each
of the discharged employees must be notified in writing that
such action has been taken and that any evidence related to
that discharge will not be considered in any future personnel
action affecting him. Sterling Sugars, 261 NLRB 472 (1982).
Finally, as the Moco Lease project has been completed,
Respondent will be required to mail the attached notice to
the currently known addresses of all employees employed by
it at the Moco Lease project during 1991 in order to inform
those employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The Respondent, California Oilfield Maintenance, Inc.,
d/b/a Robbins Engineering, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging employees for engaging in concerted ac-
tivities protected by Section 7 of the Act.
(b) Threatening to discharge employees for engaging in
concerted activities protected by Section 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, coercing, or discriminating against employees because
they exercise rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately offer to reinstate Rick Arlos, Orville
Burks, George Ferguson, Mike Flowers, Agee Holloway,
Donald Jones, Pat Patterson, Harold Sisemore Jr., and Curtis
Taylor, and make each whole for all losses incurred as a re-
sult of their April 1991 discharges as specified in the remedy
section of this decision in this matter.
(b) Expunge from its records any reference to the April
1991 discharges of those employees named in paragraph
2(a), above, including the April 25, 1991 employee incident
reports, and notify each of those individuals in writing that
such action has been taken and that his April 1991 discharge
will not be used in any future personnel action involving
him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
propriety of any offers of reinstatement, backpay, and trust
fund reimbursements required by the terms of this Order.
(d) Mail signed and dated copies of the attached notice
marked ‘‘Appendix’’22 to the currently known address avail-
able to, or furnished to, Respondent of all employees em-
ployed by it at the Moco Lease project during 1991. Copies
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the notice, on forms provided by the Regional Director for
Region 31, shall be signed and dated by the Respondent’s
authorized representative.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order of the steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that Respondent violated Section 8(a)(3)
of the Act.
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing before an administrative law judge, the
National Labor Relations Board has found that we violated
the National Labor Relations Act and ordered us to post and
abide by this notice.
The National Labor Relations Act provides employees with
the right to engage in union or other concerted activities for
mutual aid and protection on the job, or to refrain from any
such activities.
WE WILL NOT discharge, or threaten to discharge, employ-
ees who engage in concerted activities protected by Section
7 of the National Labor Relations Act, to protest working
conditions or the discharge of employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees because they exercise their
rights guaranteed by the National Labor Relations Act.
WE WILL immediately offer to reinstate Rick Arlos,
Orville Burks, George Ferguson, Mike Flowers, Agee Hollo-
way, Donald Jones, Pat Patterson, Harold Sisemore, Jr. and
Curtis Taylor to their former positions, and make them whole
for all wages and benefits, together with interest thereon,
they lost as a result of their April 1991 discharges to the ex-
tent provided by law.
WE WILL notify Rick Arlos, Orville Burks, George Fer-
guson, Mike Flowers, Agee Holloway, Donald Jones, Pat
Patterson, Harold Sisemore Jr., and Curtis Taylor in writing
that we have expunged any reference to their unlawful April
1991 discharges, and threats to discharge, from our records
and that WE WILL not rely on that discharge in any future
personnel actions involving them.
CALIFORNIA OILFIELD MAINTENANCE, INC.,
D/B/A ROBBINS ENGINEERING