Service Machine & Shipbuilding Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1980

253 N.L.R.B. 628 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service Machine & Shipbuilding Corp. and Nathan-
iel Buggage, Sr. Case 15-CA-7429
December 8, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS
PENI.I.-O ANI) ZIMMERMAN
On July 22, 1980, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. On August 8, 1980, he issued an
Erratum. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel
filed a brief in support of the Decision and a brief
in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Service Ma-
chine & Shipbuilding Corp; Franklin, Louisiana, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standurd Dry Wall Producert
Inc., 91 N.RB 544 (1950). enfd 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In agreeing with the Administrative Law Judge's conclusions herein,
Member Penello does not rely on .Alleluia Cushion Co., Inc., 221 NLRB
999 (1975), or on the other cases cited by the Administrative Law Judge
in fn. 5 of his Decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
discharge because they engage in concerted
activities which are protected under the Na-
tional Labor Relations Act, as amended.
WE WILL NOT discharge our employees be-
cause they engage in concerted activities
which are protected under the Act.
WE WllL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Nathaniel Buggage, Sr.,
Frank Dorsey, Sr., McCullem Williams, Sr.,
and Thomas Coleman, Sr., immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or other rights and privileges previously en-
joyed.
WE WIll. make Buggage, Dorsey, Williams,
and Coleman whole for any loss of earnings
they may have suffered as a result of our dis-
crimination against them, with interest.
SERVICE MACHINE & SHIPBUILDING
CORP.
DECISION
STA IEMENr OF THE CASE
J. PARGEN ROBIR SON, Administrative Law Judge:
This case was heard on March 13, 1980, in Franklin,
Louisiana. The charge was filed on September 21, 1979,
and the complaint issued on October 24, 1979. The com-
plaint alleges that Respondent threatened to discharge
and discharged four employees, Nathaniel Buggage, Sr.,
Frank Dorsey, Sr., McCullem Williams, Sr., and Thomas
Coleman, Sr., because they engaged in protected con-
certed activities.
Upon the entire record and from my observations of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following:
FINDINCGS OF FACT
A. The Evidence
Respondent's business involves marine construction at
its facility at Amelia, Louisiana.'
Respondent, through its answer and a stipulation of fact which I ap-
proved during the hearing, admitted all the complaint's commerce allega-
tions. On that basis. including Respondent's admissions of the conclusion-
ary allegations regarding its status as an employer, find that Respondent
is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondent alleged that a complaint had also been filed with the Occu-
pational Safety and Health Administration I received in evidence
OSHA's March 5, 1980,). letter to Respondent However, I do not consid-
er a determination by OSHA binding, either legally or factually. in this
controversy. See United States Stove Co., 245 NLRB 1402 (1979).
253 NLRB No. 88
628
StLRVICE MIACIINE & SIII'IPBUIIDIN(G CORP
The basis of the instant controversy arose during the
evening of September 19. 1979. On that date all of the
alleged discriminatees were employed by Respondent as
"welders."
The normal work hours for the four alleged discrimin-
atees ran from 6:30 a.m. to 5 p.m. The evidence shows
that normal operations were shut down around 4:30 p.m.,
on September 19, due to rain. However, at that time Re-
spondent had loaded a "platform " 2 onto a barge by use
of railroad type rails. The platform had not been secured
to the barge and Respondent feared that the platform
could roll or slip off the barge in bad weather. Due to
that concern Respondent requested volunteers to weld
the platform to the barge.
The four alleged discriminatees volunteered to work
overtime. Additionally, there were four other welders.
described as Vietnamese welders, and some other person-
nel including fitters, that stayed over to work after the
normal shift.
The evidence reflected that the weather turned to rain
or mist in the late afternoon. Apparently, the workers,
including the alleged discriminatees, had not anticipated
rain on September 19. The alleged discriminatees did not
wear any equipment, such as rubber shoes. to work that
morning in anticipation of rain.
After the regular shift ended, the four alleged discri-
minatees sought shelter from the rain, in a shack near the
barge. However, Foreman Milton Duval came into the
shack and directed the four out to the barge. On the
barge the four sought shelter out of rain, under the plat-
form's decks.
After some of the fitters performed some preliminary
work on the platform's braces, two of the alleged discri-
minatees, Frank Dorsey and McCullem Williams,
"tacked" one of the platform's braces in place. However,
according to Dorsey and Williams, the rain became
heavier as they finished the tacking of the brace and they
stopped working before welding the brace in place.
The General Counsel alleges that the alleged discri-
minatees refused to weld because of the rain. Because of
their refusal, Foreman Duval threatened the four with
discharge and, upon their refusal to weld in the rain,
they were discharged. Respondent, on the other hand,
contends that the four walked off the job without justifi-
cation.
The factual disputes involve different versions of what
happened as the alleged discriminatees refused to weld
and what occurred later during conversations between
them, Superintendent Rudy Thidodeaux, and Foreman
Duval. Respondent contends that the alleged discrimina-
tees were not justified in refusing to weld because the
weather was not bad and the conditions were not unsafe.
2 The platfiorm, which was also referred to as a deck, is a large struc-
ture which towers some 6 feet above the barge The platform is support-
ed by four large pipe-type pillars which are in turn supported by cross-
beams The platform includes two decks. The plaltform's lower deck is
some 56 feet above the barge's deck The upper deck is near the lop ,of
the platform Various pieces of equipment and structures are supported
on the platform's two decks
IS. Ba.si of the Rtiasul 7o Work
I find the record evidence convincing that the four al-
legcd discriminateces refused to continue working around
6:3() p., o September 19, because of the rain. Al-
though Respondent argues that there was only a slight
mist, I note that its own witnesses appeared to indicate
that from time to time on the evening of the 19th the
rain was heavy. Safety Director Jessie Crcssitone testi-
fied, "1 believe around 7:(X) or so we had another shower
. . . Foreman Duval admits that he was wet and that
he should have had on a "slicker suit." Superintendent
Thidodeaux testified: "And at the time they were putting
their gear in the shack, it was raining kind of hard."
As to the reason why the employees did not want to
work in the rain, Dorsey testified that Thomas Coleman
told Foreman Duval that he "would probably get sick or
take pneumonia or get electrocuted ....
McCullem Williams testified that after Foreman Duval
told them to go home if they did not want to work,
Thomas Coleman said, "I can't work in weather like this,
give me my card .... "
Thomas Coleman testified that he told Duval, "I can't
work in the rain .... "
Foreman Duval testified that the four alleged discri-
minatees said that they were not going to work in the
rain: that "if we get sick, Service Machine will not give
us a penny . . . we got our family to look after .... "
Therefore, I find that the alleged discriminatees re-
fused to work because of the rain. One of the employees
commented about the possibility of illness resulting from
their working in the rain. I do not credit Frank Dorsey's
testimony that Thomas Coleman mentioned the danger
of electrocution, in view of neither Coleman nor Wil-
liams recalling such comments.
C. The Discharge
According to testimony of the three alleged discrimin-
atees that testified during the General Counsel's case-in-
chief, upon their refusal to work in the rain, Foreman
Duval told them to go home if they were not going to
work.
Safety Director Cressione confirmed the testimony of
the General Counsel's witnesses, that Duval told the four
to go home if they did not want to work.
On the basis of the above testimony, which I credit,3 I
find that Duval told the four employees to leave if they
were not going to weld.
As the four alleged discriminatees were leaving they
encountered Superintendent Thidodeaux. Thidodeaux
testified that after he had been informed of what oc-
curred on the barge, he offered to put visqueen4 over
the work areas. According to Thidodeaux the four did
' Even though Duval did nor testify to making such a comment, I do
not credit that failure as an indication that the comment was not made
Duval's testimony was, on occasion, inconsistent with established facts
and probabilities oth he and Superintendent Thidcldeaux appeared to
slant their testimony in an effort to mininmize the degree of rain that
night To the extent their testimony conflicts with other evidence, I do
riot credit them. I specifically discredit Dusal's testimony that Coleman
said he was going to quit in View of Coleman's denial
* Visqueen is a waterproof plastic sheeting
629
I)ECISIONS ()F NATIONAL LABOR RELA'IIONS BOARD
not want to talk further about the matter. They said they
were going home. Thidodeaux admitted telling the four
that if they went home and left us in a hind, "I would
have to terminate them and then replace them with some
other welders."
The evidence indicates that after the four alleged dis-
criminatees left the job on the evening of September 19.
Respondent built shelters of visqueen material over the
welding areas. The four Vietnamese welders then com-
pleted the job. However, I credit the testimony of the
four alleged discriminatees that neither Thidodeaux nor
Duval offered to shelter the area with visqueen prior to
their leaving on September 19.
On the basis of the above evidence, and the record as
a whole, I find that the four alleged discriminatees were
told to go home when they refused to work in the rain.
Thereafter, they were confronted by Superintendent Thi-
dodeaux and, upon confirming to him that they would
not work in the rain, they were discharged.
D. Determination
In a situation similar to the instant case, the Board
overruled an Administrative Law Judge and found a vio-
lation in Union Boiler Company, 213 NLRB 818 (1974).
In Union Boiler a violation was found where four em-
ployees refused to continue working. The Board found
that the evidence demonstrated that at least one of the
reasons why the employees refused to continue working
was their concern with unsafe working conditions. How-
ever, the Board also stated a violation occurred even if
the employees were primarily protesting the assignment
of overtime rather than unsafe conditions.
The instant record convinces me that the four employ-
ees involved herein were concerned with safety and
health on September 19. Although none of the employ-
ees mentioned safety, the evidence demonstrates that one
of the four, Thomas Coleman, mentioned to Foreman
Duval that he was concerned with illness. However, all
the persons involved, including Supervisors Duval and
Thidodeaux, were aware that the electrical wire leading
into the welding machine (which was situated on the
deck of the barge), carried 440 volts. Although Respond-
ent attempted to elicit testimony from Thidodeaux and
Duval to the effect that the welding equipment which
the welders handled did not involve the danger of con-
tact with the 440 volts, that effort was generally unsuc-
cessful. Although Duval and Thidodeaux testified that
the welders may receive only minor shock, both demon-
strated from their testimony that they were unaware of
the size of the charge to which the welders could be ex-
posed. The welders also demonstrated, by their testimo-
ny, fear of a major electrical shock.
Additionally, Respondent's safety director admitted
that welding could be dangerous in the direct rain. Testi-
mony demonstrated that welders felt the danger inherent
in welding in the rain was so apparent that a comment in
that regard to supervisors was unnecessary.
Therefore, I am convinced that one of the concerns
which caused the four employees to refuse to weld in the
rain was their fear of injury.
Moreover, from my reading of the Board's cases, the
finding that employees' concern that conditions may be
unsafe is unnecessary in the instant case to a determina-
tion that a violation occurred.
Certainly, if we were concerned with the actions of a
single employee then the matter of unsafe conditions
may be relevant to the question of whether one employ-
ee was involved in concerted activities.' Here, however,
we have four employees involved in the refusal to work.
Although the evidence does not reveal that the employ-
ees planned their action in refusing to work, the evidence
does show a simultaneous and, apparently, spontaneous
reaction by all four against working in the rain. The four
thereafter acted together in refusing the demand of Fore-
man Duval that they commence welding. Under those
circumstances, I have no doubt and I find that they were
engaged in concerted activity.6
I also find that the four were discharged on September
19. When they refused Duval's directive to weld, Duval
told them to go home. As they were leaving, Superin-
tendent Thidodeaux learned from Duval what had oc-
curred. At that time Thidodeaux told the employees that
they would he terminated if they left. Therefore, I find
the employees were presented with an ultimatum of
work or be fired. When the employees persisted, they
were discharged.
E. The 8(a)(1) Allegation
I find, in agreement with the General Counsel, that
when Foreman Duval told Buggage, Dorsey, Williams,
and Coleman, on the evening of September 19 to go
home if they were not going to weld, he was threatening
the employees with discharge for engaging in protected
activity. I make this determination in view of my find-
ings above.
CONCIUSIONS OF LAW
1. Respondent, Service Machine & Shipbuilding Corp.,
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By threatening its employees with discharge because
they engaged in protected concerted activities, Respond-
ent has violated Section 8(a)(1) of the Act.
3. By discharging its employees Nathaniel Buggage,
Sr., Frank Dorsey, Sr., McCullem Williams, Sr., and
Thomas Coleman, Sr., because they engaged in protected
concerted activities, Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act,
I shall recommend that it be ordered to cease and desist
B & P Motor Express, 230 NLRB 653 (1977); Roadway Express, Inc.,
217 NLRB 278 (1975); Alleluia Cushion Co.. Inc., 221 NLRB 999 (1975);
T& 7 Industries. Inc., 235 NLRB 517 (1978).
e Hintze Contracting Company. Inc.. 236 NLRB 45 (1978); Richboro
Community Mental Health Council Inc., 242 NLRB 1267 (1979), and
Magna Visual. 213 NLRB 162 (1974).
SERVICE MACHINE & SIPBUILDIINi CO()RI'
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged Nathaniel uggage, Sr., Frank Dorsey, Sr.,
McCullem Williams, Sr., and Thomas Coleman, Sr., I
shall recommend that Respondent he ordered to offer
those employees immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges. I shall further
recommend that Respondent he ordered to make Bug-
gage, Dorsey, Williams, and Coleman whole for any
losses of earnings they may have suffered as a result of
the discrimination against them. Backpay shall he com-
puted with interest as prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 51 (1977). 7
Upon the fregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 1((c)
of the Act, I hereby issue the following recommended:
ORDER
The Respondent, Service Machine & Shipbuilding
Corp., its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening its employees with discharge because
they engage in protected concerted activity.
(b) Discharging its employees because of its employ-
ees' protected concerted activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
7 See, generally, sis Plumbing & ll/uting (C.., IX NI.RB 716 (1962l
" In the event no exceptlions are filed .as provided hb Se, 11)2 46 of the
Riules and Regulation, of the Nalional .ahbor Relaiins HBoard. he finld-
ligs, 'onlulsiolS, idIl reonlnlelldedt ()rtler hereill shall. a prosidcdi in
Sec 102 4 of the Rules and Regulations,. he adopted h (fie toI(ard illd
become i findings. cinclusiions, and Order. and ll obhectiolls thcreto
shall he deemnedt .alived for all prpioses
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Nathaniel Buggage, Sr., Frank Dorsey, Sr..
McCullem Williams, Sr.. and Thomas Coleman. Sr.. im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges. Make whole uggage, l)orscy,
Williams, and Coleman, fr any loss of earnings suffered
as a result of the discrimination against them in the
manner set forth in the section of this Decision entitled
"The Remedy."
(h) Preserve and. upon request, make available to the
Board or its agents, for examination and copying, all
payroll records. social security payment records, time-
cards, personnel records and reports. and all other re-
cords necessary to analyze the amount of hackpay due
under the terms of this Order.
(c) Post at its Amelia. Louisiana, facility copies of the
attached notice marked "Appendix. " ' Copies of said
notice, on forms provided by the Regional L)irector for
Region 15, after being duly signed by Responldent's au-
thorized representative, shall he posted by Respondent
immediately upon receipt thereof, and be maintained by
it for h() consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(d) Notify the Regional [)irector for Region 15, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith
E In the venl that Ihi, ()rlcr is enfrrctd by a Jdgnmenl of a Lnll ed
State, Court of Appa;ll, thtr o "ord ill the ilillice reading "Posted by
Ordter of thte Naiional l.habor Rclalion, Board" shall read "Pisied Prsu
I[ll 1i 1 .t .idgnil'ilt f he trnIl el SNalle ('our of Appeals F[nfor iig in
()rdcr if Ihe N;alional l.abor Relatlion, Board"
hI31