Rowen & Blair Electric Co.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 639 (N.L.R.B. 1972)

ROWEN & BLAIR ELECTRIC COMPANY 639
Rowen & Blair Electric Company and Ray Junior
Simmons and Wendell H Lowry and Patrick F
Meer Cases 7-CA-9355(1), 7-CA-9355(2), and
7-CA-9355(3)
November 30, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 6, 1972, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed exceptions and a supporting brief and a brief in
opposition to General Counsel's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge This case
was heard at St Joseph, Michigan, on May 31, 1972,
pursuant to charges filed by Ray Junior Simmons, Wendell
H Lowry, and Patrick F Meer, individuals,' and a
consolidated complaint issued on April 3, 1972 Unless
specifically stated otherwise, all dates and events set out
herein occurred in 1971
The complaint alleges that the Respondent, in violation
of Section 8(a)(1) of the Act, discharged the three Charging
Parties on October 4 because they had engaged in
concerted activities for their mutual aid or protection by
complaining about safety conditions at thejobsite
The Employer claims that it discharged the three
individuals solely because of their inadequate job perform-
ance It also raises certain affirmative defenses based on
the Occupational Safety and Health Act of 1970, 29 U S C
Secs 651-678, that, in any event, the National Labor
Relations Board is not the proper forum for consideration
of alleged job-related safety violations
Upon the entire record, including my observation of the
demeanor of the witnesses, and upon the brief received
from the Respondent, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent maintains its principal office and place of
business at Kalamazoo, Michigan, where it is engaged as
an industrial and commercial electrical contractor The
only facility of Respondent involved in this proceeding is
at the Cook Nuclear Plant near Bridgman, Michigan In
1971, in the conduct of its operations as an electrical
contractor, Respondent furnished services valued in excess
of $500,000, of which services in excess of $50,000 were
furnished to Indiana-Michigan Electric Corporation, a
public utility which has an annual volume of business in
excess of $250,000, and has a direct outflow of goods and
services in excess of $50,000 directly across state lines
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
Local Union 153, International Brotherhood of Electri-
cal Workers, AFL-CIO, South Bend, Indiana, is the
collective-bargaining representative for the electricians
employed by Respondent at the Cook Nuclear Plant I find
that it is a labor organization within the meaning of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The Company is the electrical contractor in the construc-
tion of the Cook Nuclear Plant In late September 1971,
when the events described here occurred, the Company
employed about 250 electricians, divided into various
crews each under the supervision of a foreman Meer,
Lowry, and Simmons (sometimes referred to collectively as
the Charging Parties) were assigned to Thornberg's 10-man
crew
In the week before their discharge on Monday, October
4, they had been working in what was known as the
auxiliary building, which was then under construction The
unroofed top deck of the building was used for storage of a
great deal of equipment for use by the various crafts
Among this material was a large quantity of steel rods used
in reinforcing concrete, as well as 40-foot lengths of angle
iron Movement by workers of the various crafts on the top
deck was difficult because of the obstruction caused by the
material stored there
Part or all of two electrical crews, Thornberg's and
Zeigler's, were at work in the auxiliary building installing
cable trays which were attached to the angle iron used as
their supports The angle iron had to be cut to exact
measurement, and two saws were set up on the top deck for
that purpose Five electricians were assigned to the top
1 Simmons Lowry, and Meer filed their charges on March 7 9 and 15,
1972 respectively
200 NLRB No 95
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deck, moving the angle iron to the saws, cutting it, and
then moving it to a hole in the deck through which it was
dropped for use on the lower floors During the last week
of September, Meer, Lowry, and Simmons of Thornberg's
crew, and two men from Zeigler's crew were assigned to
the saw operations
The incidents on which the General Counsel relies to
establish that the Charging Parties were terminated for
engaging in concerted protected activities occurred during
the workweek, Monday through Friday, September 27
through October 1 On Monday, October 4, they were
discharged During this period, none of the Charging
Parties complained to the job steward or to the safety
committee , either generally about safety conditions, or
specifically about the particular incidents which took
place
The saws had been set up early that week or during the
previous week A shed was built around the saws, and at
the request of some of the Charging Parties, blowers and
wooden shrouds had been installed to aid in ventilation by
removing dust and particles caused by the sawing of the
angle iron Rain water had accumulated near the saw, so
that its operator and those helping in holding and off-
bearing the angle iron lengths had to stand in or near a
puddle
1 Once the saws were installed, the two Zeigler
crewmembers operated them in turn, while the three
members of Thornberg's crew, the Charging Parties,
moved the iron to and from the shed Because of the
puddle in and around the shed, some of the Charging
Parties asked Thornberg to have a wooden platform built
at the saw 2 Thornberg told them he would ask a carpenter
foreman to build them a platform, but when nothing was
done in the next few days, Lowry and Meer put down a
sheet of plywood at the saw station It was these two who
testified that they had complained about the water near the
saw because of their fear of being electrocuted while
standing in water and operating high voltage equipment It
turned out later, however, that there was no rational basis
for such a fear on their part, since Meer and Simmons had
wired the saws, while Simmons admitted that he had
grounded them properly The testimony of other experi-
enced journeymen electricians was clear and convincing
that a properly grounded piece of electrical equipment
poses no threat of electrocution to an operator standing in
water Thus, what had been stated or implied to be an
imminent threat to life, became merely the inconvenience
of standing or moving in a puddle of water 3
2 Tools, equipment, and building material of all sorts
was continually being placed or removed from the top deck
by an overhead crane Reinforcing rods were strewn all
over the deck Movement was thus somewhat difficult, but
according to Respondent 's witnesses , a normal hazard of
the building trades is to work around matenal belonging to
other crafts Large electrical junction boxes, variously
estimated as weighing from 50 to 200 pounds were stored
on the deck for later installation on the lower floors At one
point during the week, Thornberg told the three members
of his crew on the top deck to move the boxes from the side
of the building where they had been placed to the other
side, where there was hole in the concrete through which
they could be lowered They had to be slid or camed
around and over the other matenal on the deck
Lowry testified that Meer asked Thornberg to have a
plywood catwalk built the entire length of the deck above
all the material piled there, so that they could carry the
junction boxes without being impeded 4 According to
Thornberg, he told them that a catwalk could not be built
on the deck because it would interfere with the ironworkers
who had to move the reinforcing bars around in the course
of their work He told them to get as many men as they
needed to move the boxes and to work carefully The
catwalk was not built, and Meer, Lowry and Simmons,
with whatever other help they needed, eventually moved
the boxes without incident
3 One morning when the Charging Parties reported for
work, they found an air hose stretched over the pile of
angle iron from which they had to remove individual
lengths for sawing According to Meer , one of them asked
Thornberg to have the hose moved, although it is apparent
from his and Lowry's testimony that neither of them was
directly concerned Simmons and Thornberg agree that
Thornberg asked Simmons to uncouple the hose and move
it so that they could get at the iron Simmons testified that
he asked Thornberg if the hose was under pressure, and
that Thornberg said he didn 't know Simmons asked him to
find out, and Thornberg then left for a few minutes When
he returned , he told Simmons to uncouple the hose, at
which Simmons again asked if it was under pressure
Thornberg couldn't tell him and Simmons said he wouldn't
do it Thornberg became angry, and told him to get the
iron out of the pile even with the air hose over it 5 They
were able to do so without incident
According to Thornberg, it was Simmons who had told
him that the hose made it difficult to move the iron, and
that he then told Simmons to move it or uncouple it
Simmons then asked him if it was under pressure He said
he would find out, went to the deck below, and found that
it was disconnected from any equipment He returned and
told Simmons that there was no pressure in the hose and to
uncouple it, so it could oe moved off the pile Simmons
then said he wouldn't, it wasn't his job Thornberg then
told him to move the iron without moving the hose
About 20 minutes later, the crane dropped a steel box on
the hose, nicking it At that time, it was under pressure, but
one of the workmen stepped on the pressure end and was
able to keep it under control
According to the business manager and the steward for
Local 153, both of whom testified for the Respondent,
uncoupling an air hose which is under pressure can be
done simply and safely with two men, one to crimp it on
the pressure side while the other uncouples it Both of them
have performed the job while working as journeymen
electricians
2 Meer testified that we asked, while Lowry and Simmons each 4 Simmons said that he had asked Thornberg while Meer said without
claimed to be the one who had asked specifying that someone asked
3 Since all three were skilled electricians I find that they knew at all This is also substantially the testimony of Meer and Lowry
times that it had been properly grounded and was safe to use
ROWEN & BLAIR ELECTRIC COMPANY 641
I find Thornberg's version of the air hose incident more
believable than that of Simmons It seems unlikely that
Thornberg would have gone to find out where the hose
came from without also checking whether it was under
pressure I credit his testimony that he would not have
asked Simmons to uncouple it under pressure, even though
it could be done by two men without danger, and that, in
fact, it was not then connected to any equipment I
therefore find that Simmons refused to obey Thornberg's
order, not because Thornberg would not assure him, as
Simmons testified, that it was not under pressure, but
because Simmons felt it was the responsibility of the craft
that had placed the air hose, to uncouple and move it
These are the incidents which, in the General Counsel's
view, establish that Meer, Lowry, and Simmons were
concertedly protesting unsafe or uncomfortable working
conditions Neither singly nor collectively do they impress
me as particularly meritorious complaints, but rather as
protests against the routine discomforts of life as a building
trades craftsman But trivial or not, the griping of Meer,
Lowry, and Simmons is protected if they acted concerted-
ly 6 I find that they did They were all in Thomberg's crew,
worked together on the top deck, and were assigned the
same general duties Although only Simmons was involved
in the order to uncouple the hose, and only he refused to
carry it out, each of them joined in the complaints they had
in common about working at the saw while standing in
water, and in moving the junction boxes
Respondent denies that it discharged Meer, Lowry, and
Simmons because of their concerted complaints over safety
or working conditions, contending that they were terminat-
ed for low productivity Thornberg testified that he had
gotten complaints during the week from the men on the
floor below who were installing cable trays that they were
not getting the iron supports promptly from the saw shed
He said he investigated, and found only two men working,
those in Zeigler's crew, while his men were not in sight He
checked and found them on another deck, getting a drink
He said he had to look for them on other occasions when
they were unaccountably away from their assigned work
area
Vascil, a general foreman, and Thornberg's superior,
testified that Thornberg had told him a few times that he
was having trouble finding and keeping the Charging
Parties at work Vascil said he told him to do what he could
and to work it out some way Voorhees, a superintendent,
and Vascil's superior, testified that Vascil had come to him
on the Monday or Tuesday before the termination to tell
him about the problems Thornberg was having with the
Charging Parties, and that he told Vascil to handle it
himself
On Friday afternoon, after the incident to be described
below, Thornberg went to Vascil to tell him that he wanted
to discharge Meer, Lowry, and Simmons immediately, but
Vascil told him to reconsider it over the weekend, and to
talk to him about it on Monday Monday morning,
October 4, Thornberg told Vascil he still wanted to
discharge them Vascil then went to Voorhees, and together
they spoke to the project superintendent, Stillman, who
approved the discharges Their final checks were then
prepared, and Thornberg discharged them before noon
The incident which prompted Thornberg to ask Vascil if
he could discharge them immediately occurred on Thurs-
day or Friday In the early part of the week, the two
members of Zeigler's crew on the top deck had been
operating the saw (apparently with no complaint about
having to stand in a puddle) while the charging parties
were moving the angle iron to and from the shed On
Wednesday or Thursday evening, Thornberg told them
that it would be their turn the next morning to begin
operating the saw They checked in the next morning at 8
a in and asked Thornberg for face shields to attach to their
hard hats, and for respirators 7 Thornberg offered them the
hard hat and shield used by the man who had been sawing
the day before, but they refused it because it was sweaty
and grimy Thornberg then went to his crew storage box,
but found that he did not have the proper headgear He
then told them to go to the toolcnb to get what they
needed This was sometime between 8 15 and 8 30 a in
Meer said that all three went to the toolcnb together, but I
credit Simmons' testimony that he did not go with them
The toolcnb was about 150 yards from where they were
working It took Meer and Lowry at least an hour to go to
the toolcrib, pick up the equipment, and then go to the
first-aid station for alcohol swabs which they would need
to clean their respirators after a day's work According to
Simmons, Thornberg asked him where the other two were,
and complained that it was taking them too long 8
When they got back it was time for their coffee break
With that over, they began setting up their equipment, and
about I 1 a in they were ready to begin sawing There is
disagreement about when the first piece of angle iron
reached the floor below, but I credit Thornberg that it was
well after 11 o'clock
That afternoon Thornberg had a talk with the three of
them in the saw shed He asked why they were bucking
him and dogging the job Meer said he answered him that
they were interested in safety, and Thornberg replied that
they were more interested in that than in getting the job
done, that they were wasting time and would have to put
out more work Lowry and Simmons generally confirm
Meer's testimony They all claimed that this was their first
indication that Thornberg might not be satisfied with their
job performance
Monday morning Thornberg went to the saw shed to see
how things were going He testified that the three gave him
"a little bit of static" about something, and he decided he
wanted them discharged His superiors affirmed his
decision, and about 11 a in he told them of their
termination They were paid off and checked out with the
steward, Ballard None of them told him that he thought he
was being let go because of any protests over safety or
working conditions
A few days later, they asked the business manager of
6 See St Regis Paper Company 192 NLRB No 87 holding that even a
S The steward and the local s business manager both testified that the
miniscule controversy may give rise to concerted protected activity proper procedure for an electrician who is told the day before what his
7 The person actually operating the saw used a special type of hard hat assignment is to be is to go directly to the toolcrib after check in pick up
with adaptors for attaching the plastic face shield what he needs and then report to the work site
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 153, Robinson, to investigate their discharges Their
termination slip said it was for low productivity, and none
of them suggested to him that the Company might have
had another unrevealed reason for terminating them
Robinson and Ballard went out to the site with a
representative of the National Electrical Contractors
Association They spoke to Thornberg and to members of
his crew Their investigation took about an hour, and
Robinson and Ballard decided, on the basis of what they
heard, not to protest the discharges, concluding that they
had been for good cause Not until an NLRB examiner
interviewed him, after the filing of the charges in this case,
5 months later, did Robinson learn that the Charging
Parties were claiming that they had protested safety
conditions and had been discharged for that reason
Concluding Findings
Thornberg had told Vascil, his general foreman, that
they were always bringing up safety questions that he
couldn't answer, and he also accused them on Friday
afternoon of being more interested in safety than in doing
their work Thornberg was not asking them to take undue
risks or to suffer prolonged discomfort in order to speed up
their work What he expected of them was that they work
reasonably diligently without resorting to demands which
he considered had been put forward only to delay or avoid
work I conclude that the asserted reason for their
discharge, low productivity, was in fact the true and only
reason for terminating them, and I shall therefore
recommend dismissal of the complaint
In view of that recommendation, I see no reason to
consider the merits of Respondent 's interesting arguments
that the Occupational Safety and Health Act of 1970
precludes Board determination of this case
I am satisfied that Thornberg decided to discharge Meer,
Lowry, and Simmons late in the week ending October 1,
because of their previous unsatisfactory work performance,
which culminated the morning of their first day on the saw,
with their undue delay in getting started I think Thornberg
was justifiably angered by their prolonged trip to the
toolcrib and the first-aid station to obtain equipment which
they could have picked up before reporting to their work
area It is true that Meer or Lowry or Simmons, or some
combination of the three, complained about the water near
the saw, asked for a catwalk to avoid obstructions on the
deck, and refused to uncouple the air hose (all of which
might charitably be regarded as protesting a lack of safety
or comfort) but I believe that Thornberg regarded these
complaints as a cover up for their lack of diligence, rather
than being put forward as meritorious in themselves
CONCLUSIONS OF LAW
1 Rowen & Blair Electric Company is engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act
2 Local Union 153, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 The Respondent has not engaged in any unfair labor
practices alleged in the complaint
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety