Stone and Webster Engineering Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 19, 1974209 N.L.R.B. 783 (N.L.R.B. 1974) Copy Citation STONE & WEBSTER ENGINEERING CORP. 783 Stone and Webster Engineering Corporation and Operative Plasterers ' and Cement Masons' Inter- national Association , Local No. 64. Case 5-CA-6188 March 19, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 20, 1973, Administrative Law Judge Thomas N. Kessel issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the cross-exceptions and in support of the Administrative Law Judge's Decision. 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 Respondent, Stone and Webster Engineering Corporation, Mineral, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent contends that it was denied a fair and impartial hearing, alleging that the Administrative Law Judge cross-examined witnesses , cut off relevant lines of inquiry, and took "Respondent 's case out of its own hands." We have carefully examined the record in this case and find that the Administrative Law Judge committed no prejudicial error. An Administrative Law Judge is under a duty to question witnesses to ascertain their credibility and clarify their testimony where he deems it necessary, and whether certain lines of inquiry or the response of witnesses are curtailed lies within the sound discretion of the Administrative Law Judge. We find no abuse of discretion in this case . The evidence which the Respondent sought to introduce pertained to matters which did not directly relate to the specific issues in this case Nor do we find that the Administrative Law Judge otherwise invaded the Respondent 's right to a fair trial. American Life and Accident Insurance Company of Kentucky, 123 NLRB 529, 530-531 DECISION STATEMENT OF THE CASE THOMAS N. KESSEL, Administrative Law Judge: Upon a charge filed July 6, 1973, by Operative Plasterers' and Cement Masons' International Association, Local No. 64, herein called the Union, against Stone and Webster Engineering Corporation. herein called the Respondent, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 5, issued his complaint dated August 14, 1973, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. The Respondent's answer denies the allegation of statutory violation therein. Copies of the complaint, charge, and notice of hearing were duly served on the parties. Pursuant to said notice a trial was held before me at Louisa, Virginia, on September 13 and 14, 1973. The General Counsel and the Respondent were represented at the trial by counsel . Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties . After the close of the trial briefs were filed by the parties which have been duly considered. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is a Massachusetts corporation engaged at Mineral, Virginia, in the construction of a powerplant for the Virginia Electric and Power Company. In the year preceding issuance of the complaint, the Respondent purchased and received materials and supplies valued in excess of $50,000. from points outside the Commonwealth of Virginia. I find that the Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act and that the purposes of the Act will be effectuated by the Board's assertion of jurisdiction in this case over its operations. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to member- ship employees employed by the Respondent. III. THE UNFAIR LABOR PRACTICES The General Counsel contends that the Respondent's layoff on June 19, 1973, of four employees, William M. Greene, Herman Scott, Willie Moore, and Thomas Hampton, violated Section 8(a)(l) and (3) of the Act because Foreman Wilbur Ray Batts had selected them for layoff in reprisal for their having summoned Union Business Agent Benjamin H. Atkins, Jr., to the jobsite to air complaints about certain working conditions. The Respondent denies that Batts' selection of these employees was motivated by such unlawful consideration and maintains that he had justifiably chosen them for layoff because they were less competent than those retained. The four employees above mentioned were cement finishers working on the construction of the elaborate 209 NLRB No. 119 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cement walled housing for the nuclear reactors being constructed by the Respondent.' The cement finishers, during times relevant to the case, worked in 4 crews with about 8 to 10 employees in each. Each crew was supervised by a foreman with the aforementioned Batts occupying the position of general foreman over all the cement finishers. All cement finishers, their crew foremen, and Batts are members of the Union. Relevant thereto is uncontested evidence that the Respondent has numerous contracts with labor organizations, including the Union, covering all its employees in the construction trades, that its relations with them have traditionally been harmonious, and that employee-members of the various labor organizations may without objection from the Respondent call their business agents to the project site to discuss their job complaints. Because of a strike by the carpenters who erected the scaffolding from which the cement finishers worked, the Respondent was compelled to lay off six employees in the latter category on June 19. It is undisputed that this layoff was economically justified. The four complaining employ- ees in this case were among the six who were chosen for layoff. Having learned in the morning of June 19 of their selection, Greene, Scott, Moore, and Hampton, accompa- nied by their union steward, James W. Baskerville, sought out Batts in his office. What occurred there is the principally controverted issue in the case. The four employees and Baskerville all testified without significant variation that they asked Batts why these employees had been selected and were told it was because they had called Union Business Agent Atkins to the job. Atkin's visit to the jobsite in March 1973 had been prompted by a call from Steward Baskerville on behalf of the four complaining employees. The next morning he arrived at the jobsite where he met with about 10 or 12 cement finishers, including the 4 complainants. Batts was also present. Baskerville attributed to Batts the statement to him that he had informed Foreman Kizzie, directly over the cement finishers crew which included the four complainants, that he would have to discharge someone as these four had been observed loafing on their scaffold. In turn Kizzie had threatened to quit. The alleged loafing was explained by the employees involved as unavoidable because of the improper height of the scaffolding and the weight of the air tools they were required to use for overhead work. Complaints were voiced about harassment of employees or the giving of orders to them by foremen on crews other than those in which they worked. The four complainants were among the several employees who spoke about these matters at the meeting. There is agreement that the meeting ended amicably and that subsequently steps were taken to satisfy the employee complaints. Turning again to the events of June 19, Atkins testified that he was notified to come to the jobsite by Steward Baskerville. Another phone call from Hampton informed him of Batts' alleged statement that the four employees had been laid off because they were "troublemakers" who had in March summoned him to the job to discuss their complaints. Atkins came directly to the job and met with Batts, Baskerville, and the entire group of six employees who had received their layoff notices. According to Atkins, employee Moore declared that Batts had explained his layoff earlier that day as retaliation for his having called "the man on me," meaning "because you called the Business Agent on a formal complaint." Then Atkins asked Batts whether he had made these statements and Batts replied that he did not remember having done so. Atkins pointed out to him that five persons were present when he had made this alleged statement, including Baskerville and the four complainants, whereupon Batts responded that he did not recall having said these things. Atkins thereupon went to the labor relations office where he apprised W. J. Price, the Respondent's labor relations supervisor, of the remark attributed to Batts and unsuc- cessfully sought to persuade him to rescind the layoff and to reinstate the six employees involved. Price indicated that he had issued the order for the layoff and that he didn't know who had been selected, but that in a layoff the least productive employees are chosen. Atkins further testified that in September 1973 the Union had received a request from the Respondent to refer cement finishers and that he had thereupon referred the four complainants, all of whom had been hired except Scott who declined because he had in the meantime obtained other employment. It is undisputed that the Respondent is under no obligation to hire cement finishers referred to it by the Union and may reject them without explanation. Batts offered the following version about what occurred on June 19 when the laid-off employees confronted him with the demand for an explanation of their selection. Steward Baskerville and the four complainants came to his office after the pink slips denoting layoff had been distributed. Employee Scott accused him of "discriminat- ing," claiming that he had laid off "bookmen" while retaining "permit men." Batts denied any knowledge of such matters. Scott then charged him with pushing them around and said "that is exactly why we are getting laid off, because we put the business agent on you." Moore and Hampton gave indication that they intended to attack him and Batts hastily got out of the office. Later at the meeting with Atkins in Price's office the charge was reiterated that Batts had told the laid-off employees he had selected them because they had summoned the Union's Business agent. Questioned by counsel whether he had then denied making such statement he responded, "I do not believe I said that. I believe I did not make that statement. Like I said, everything was happening so fast and I got out." At a later point during cross-examination Batts denied that he had ever said this to the employees. As he explained, "they never gave me time to tell them," and with the rapidly mounting tempers of the employees he decided to get out of his office quickly, which he did. Concerning the selection of the laid-off employees, Batts testified that he had been instructed by his superior, Chief Construction Supervisor George Stevenson, to select six cement finishers and in the process to "cut-back" one of I At the urging of Respondent's counsel , 1 visited the construction site the Respondent's enormous responsibility to complete this facility timely after the close of the hearing, accompanied by all parties in the case. I am and efficiently impressed with the magnitude and complexity of the project and appreciate STONE & WEBSTER ENGINEERING CORP. the two crews in reactor 2. He decided that because Foreman Kizzie had only temporary status as foreman that he would cut him back to journeyman status by eliminat- ing his crew. He thereupon called Kizzie and asked for the names of the employees in his crew. Then from these he selected the names of the four complainants. In addition Batts selected two employees, Sledge and Johnson, from other crews and these six comprised the group laid off on June 19. As for his "thinking process" in deciding which employees to lay off, he testified "most of the time we just keep the best men." At the time of the June 19 layoff Foremen Kizzie's crew consisted of the four complaining employees and four others, one being hospitalized at the time. In explanation of why he selected only four from this crew in view of his earlier testimony that he had intended to "bust" the crew and to reduce Kizzie to a journeyman job, Batts testified, .,we keep the best workers. There were four out of his crew and one out of [Foreman] Taylor's crew and one out of [Foreman] Taber's." Asked whether the four picked from Kizzie's crew were less able workers then the others in that crew who were not selected he responded, "Kizzie was riding with another fellow in his crew and he asked me to let him go back in [Foreman] Wilson's crew-him and the fellow I called Pops. That left two and Taylor took one and Taber took the other one. That took care of Kizzie's crew." Cross-examined about his selection of the four complain- ing employees, Batts related that he had Kizzie read to him the names of the eight crewmembers and that he then named Moore, Scott, Greene, and Hampton for layoff. Asked whether he had selected them at random he answered, "I never gave it a thought." Questioned whether their selection had anything to do with their work he replied, "No, had nothing to do with their work. Or nothing else ." Queried whether he had "just picked them out of the air" or whether he had any basis for picking them, he asserted, "No, if it had been Tom, Joe, Dick or Harry it would have been all the same to me." To support the defense that the least competent employees were selected for layoff on June 19 Respondent offered testimony showing that Foreman Kizzie's crew was the last among the cement finishers to be formed and that employees, including the four complainants, were selected from other established crews to form this new crew. These circumstances are coupled with testimony by Chief Construction Supervisor Stevenson that dung his former experience as a foreman in the construction industry when called upon to surrender a man from his crew that he would not give up his best worker. Foreman Taber testified similarly and added that Greene and Hampton had been selected by him for transfer from his crew to Kizzie's crew because they were the least competent among his cement finishers. Stevenson, however, testified that although he knew that Kizzie's crew was the last to be formed he had not directed Batts to lay off employees under Kizzie but gave Batts the choice of taking them from either of the two crews in reactor 2. Nor did he tell Batts which men to pick. He acknowledged that when a new crew is formed that it should include "older hands with new hands" to provide balance, and finally that Kizzie's crew which had been in existence from early January 1973 to the date of the layoff 785 on June 19 was "not necessarily" operating at a higher cost than any other cement finisher crew. Relevant also to the question of the competence of the complaining employees is Batts ' testimony concerning them. Asked whether Moore was a "bad employee" he responded, "I don't have anything against Moore." As to whether "he is a pretty good worker" he said simply "he does his job." Questioned whether Hampton is a "bad employee" or "does he do his work" Batts replied, "he does his work." As to whether Greene gets "his work done," he observed, "like I said , the foreman takes care of the work. I don't have nothing to do with it. I am not around the men five minutes of the day. I move all the time. If they have any complaint, the foreman brings it to me." Then he acknowledged that he had not received any complaints from their foreman about Moore, Greene, Hampton, or Scott. Their foreman, Kizzie, was not called by the Respondent to testify and no explanation was furnished for this failure to produce him as a witness. I am persuaded that Batts when confronted by Steward Baskerville and the four complainants did explain that these employees had been laid off because of his resentment toward them for having called Business Agent Atkins to complain about their working conditions. I credit the account by these five witnesses that Batts had made. this statement to them on June 19 following the layoff of that day. Their clear mutually corroborative testimony that this was said contrasts sharply with Batts ' uncertain denial, which in part was mere belief that he had not made such statement . In this connection I credit Business Agent Atkins' uncontradicted testimony that when he asked Batts on June 19 whether he had made this statement Batts had not registered a denial but merely expressed his inability to remember . Moreover, there is record evidence to show, despite Batts' disclaimer of holding a grudge against the four complainants, that he did resent their part in convening the meeting in March with Atkins. Thus, Batts conceded that he continually works under pressure and saw no reason why the employees should have complained about using the expensive airhammers provided by the Respondent . Moreover, he had received no advance notice of Atkins' visit to the jobsite and felt that the problem raised by the employees could have been worked out without his presence at a meeting. Although the time between this meeting in March and the layoff in June was over 3 months , the interval was not of such duration to convince me it could no longer have been in Batts' mind and was not an operative factor in the selection for layoff of those he held responsible for bringing about the meeting. Not only am I convinced that Batts made the foregoing remark on June 19, but I am satisfied that consistent therewith he had laid off Moore, Scott, Greene, and Hampton for the reason he gave them . I perceive no reason to find that Batts meant other than what he had said to the employees . The assertion in this case that the employees laid off were selected on the basis of relative competence is clearly not supported by the record. Batts, who alone selected these employees, by his concession, had no fault to find with their work, had received no complaints from their foreman , and, what is more, selected them , as he said, 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without regard to whether they were "Tom, Joe, Dick or Harry" Because, as be further conceded, he had no opportunity to observe employees on the job he was in no position to determine who were the least competent employees. Foreman Kizzie might have told him, but be was not even asked. And, so far as there is any possible merit to the Respondent's theory that employees in the last formed crew were the least competent, the question is not satisfactorily answered as to why the four complainants were chosen and not any of the other four in their crew. The summoning of their Union's business agent by the four complaining employees to assist them in the adjust- ment of complaints about working conditions was conduct protected by Section 7 of the Act. The layoff of these employees by the Respondent's general foreman for engaging in this protected activity was, therefore, conduct violative of Section 8(a)(l) of the Act for which the Respondent is responsible. There is no need in this case for preoccupation with the question whether this same conduct is also violative of Section 8(a)(3) of the Act, as the remedy for either violation in this case would be the same. Because the record is devoid of any showing of union animus by the Respondent, I shall recommend dismissal of the allegation that Section 8(a)(3) of the Act was also violated. CONCLUSION OF LAW (a) Offer William M. Greene, Herman Scott, Willie Moore, and Thomas Hampton immediate and full reins- tatement3 to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered, in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon 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 records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Mineral, Virginia, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 5, shall be signed by Respondent's authorized representative, and be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places at all locations where notices to employees are customarily posted. Reasonable steps are to be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. By laying off William M . Greene , Herman Scott, Willie Moore , and Thomas Hampton because of their protected concerted activities, the Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Respondent cease and desist from its unfair labor practices, that it offer reinstatement to William M. Greene, Herman Scott, Willie Moore, and Thomas Hampton, with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Stone and Webster Engineering Corpora- tion, Mineral, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or in any other manner discriminating against employees because they have engaged in protected concerted activities. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order , and all objections thereto shall be deemed waived for all purposes 3 Wiule the record shows that the Respondent rehired Greene , Moore, and Hampton subsequent to their layoffs on June 19, such rehire was the result of the referral of cement finishers by the Union pursuant to a general requisition from the Respondent . As indicated , Scott had also been referred by the Union and it may be assumed he, too, would have been rehired had he reported to the Respondent . He did not because he had secured employment elsewhere . These circumstances should be considered during the compliance stage of this proceeding for the purpose of determining a cutoff date for computing backpay. However , as the record indicates that these employees had never received an offer from the Respondent itself to reinstate them, with restoration of all rights and privileges which they may have enjoyed as employees, I shall recommend that the Respondent be required to offer them reinstatement in the fullest sense of that term 4 In the event that 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 National 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discriminate against our employees because they called their union business agent to their job to discuss with him their complaints about working conditions. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of STONE & WEBSTER ENGINEERING CORP. their rights guaranteed by the National Labor Rela- tions Act. WE WILL offer reinstatement to William M. Greene, Herman Scott, Willie Moore, and Thomas Hampton 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, and WE WILL pay them for any losses they suffered as a result of having laid them off on June 19, 1973. STONE AND WEBSTER ENGINEERING CORPORATION (Employer) Dated By 787 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center , Baltimore, Maryland 21201, Telephone 301-962-2822. Copy with citationCopy as parenthetical citation