Tenn-Tom Constructors

National Labor Relations Board - Board Decisions

Apr 25, 1986

279 N.L.R.B. 465 (N.L.R.B. 1986)

TENN-TOM CONSTRUCTORS 465
Morrison-Knudsen Company , Inc., Brown and Root.
Inc., and Martin K . Eby Construction Co., Inc.,
a joint venture known as Tenn -Tom Construc-
tors and International Union of Operating Engi-
neers Local 624, AFL-CIO. Case 26-CA-9964
25 April 1986
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 16 July 1983 Administrative Law Judge
Philip P. McLeod issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings, and
conclusions only to the extent consistent with this
Decision and Order.
George McCain was employed by the Respond-
ent as a foreman in the maintenance shop and was
a supervisor as defined in Section 2(11) of the Act.
He was also a member of Operating Engineers
Local 624, the Charging Party, which represented
certain of the Respondent's employees, including
those in the maintenance shop under McCain's su-
pervision. In the summer of 1982 several of these
employees began to complain about his supervision
to their Local 624 steward, Thomas Bliss, an em-
ployee of the Respondent. They complained that
McCain performed bargaining unit work and that
he was "riding" and "harassing" employees under
his supervision. Bliss made various attempts to re-
solve these grievances through discussions with
McCain and with higher management. Nonetheless,
the complaints persisted.
In late July the general foreman, Howell, who
was above McCain in the maintenance shop, told a
group of the employees that he was disappointed
they had taken their complaints to Bliss instead of
him because it was a morale problem, that he could
help them but Bliss could not, and that from then
on they should bring their problems to him. The
judge found these statements to violate Section
8(a)(1), and we agree.
On 1 August Bliss prepared and filed a discipli-
nary charge with Local 624, against McCain as a
member, based on the employees' complaints. The
employees in McCain's crew signed the charge as
"witnesses"; the first to sign was Ronnie Crane.
Later the charge was brought before a union meet-
ing attended by Howell and McCain. Bliss present-
ed the charge and called Crane as a witness. The
union members at the meeting voted to find
McCain guilty and to fine him $100, but to suspend
the fine on the condition that McCain not repeat
the conduct that gave rise to the charge.
The General Counsel's complaint here alleged
that the Respondent threatened retaliation and
promised benefits to various employees, to influ-
ence their votes on the union charges, and after the
trial threatened to retaliate against employees. The
complaint also alleged that the Respondent retaliat-
ed against Crane by twice sending him home early,
and then laying him off. The Respondent denied
making any threats or promises, and asserted legiti-
mate business reasons for its conduct toward
Crane. The judge found it unnecessary to resolve
these factual disputes because he found that the
employees' participation in the union disciplinary
proceedings against McCain were unprotected by
the Act. The judge reasoned that the disciplinary
proceedings violated Section 8(b)(1)(B) of the
Act,' and that such unlawful concerted activity
cannot be protected. We think that analysis puts
the issue too simply and, in this case, we reverse.
Section 7 protects the right of employees to
"assist" a labor organization, and Section 8(a)(3)
prohibits discrimination to discourage not only
union membership per se, but activity as a union
member.2 Thus, the Act protects an employee in
seeking the advice and assistance of a union stew-
ard,3 or participating in union meetings.4
In Bovee & Crail Construction Co., 224 NLRB
509 (1976), the Board held that union officials who
took unlawful actions on behalf of the union were
not protected by the Act from employer discipline
for their misconduct. The Board noted that
"[e]mployees, acting on behalf of the union, may
under certain circumstances lose the protection of
the Act" and it declined to "insulate the perpetra-
tors of the unlawful act from the act itself."
That does not mean, however, that whenever a
union commits an unfair labor practice, every
member playing any role in the unlawful conduct
is a "perpetrator" of it. In B & W Construction Co.,
263 NLRB 405 (1982), the Board held that the Act
protected an employee who confronted a supervi-
sor allegedly performing unit work and threatened
to file an internal union charge against him. The
i No charge was filed here alleging a violation of Sec 8(b)(1)(B), but
we assume without deciding that the Union's conduct was of the type
proscribed by that section
2 Radio Officers v NLRB, 347 U S 17, 39-40 (1954)
a See, e g, Lucky Stores, 245 NLRB 647 (1979), Temperature Systems
Corp, 195 NLRB 1023 (1972), Chas. Ind Co, 203 NLRB 476 (1973);
Ogle Protection Service, 149 NLRB 545, 557-561 (1964)
4 See, e g, Berkshire Knitting Mills, 46 NLRB 955, 999 (1942), enfd
139 F 2d 134, 141 (1943), cert denied 322 U S 747 (1944)
279 NLRB No. 68
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board found that the employee was a rank -and-file
member seeking his union 's assistance to enforce
the terms of a collective-bargaining agreement, and
that his error in choice of procedure did not by
itself make him responsible for the union 's unfair
labor practice . The employer in that case filed
8(b)(1)(B) charges with the Board , which found a
violation ; the Board noted that the employer was
thus able to protect its legitimate interests without
retaliation against the employee.
Congress has expressed its intent that generally
labor organizations and their agents, but not indi-
vidual employees , should be responsible for the un-
lawful practices of labor organizations . Thus, Sec-
tion 8(b) of the Act proscribes unfair labor prac-
tices by "a labor organization or its agents" and
Section 301(b) provides that court judgments under
that section are "enforceable only against the orga-
nization . . . and . . . not . . . against any individ-
ual member. . . ."
Furthermore , the rank-and-file member is enti-
tled to rely , to some extent , on the advice of his
statutory representative . That is part of the reason
employees choose representation, and an assump-
tion underlying the representative's role in the stat-
utory scheme assigns to it both authority and obli-
gations.5
If the Union committed an unfair labor practice
here ,6 the Respondent had remedies available to it
through the Board. The Board would order any
discipline rescinded , would make McCain whole,
and would order the Union to cease its coercive
tactics . Such remedies would adequately protect
the Respondent's legitimate interests here. More-
over, as the Supreme Court observed in Florida
Power & Light Co. v. Electrical Workers IBEW
Local 641, 417 U.S. 790, 808 (1974), an employer
can protect itself absolutely by requiring its super-
visors to resign their union memberships . Further-
more , an employer can take direct action against
the perpetrators , as we held in Bovee & Crail.
Given these remedies , it would be unfair to
allow an employer to retaliate against rank -and-file
employees who relied on their statutory representa-
tive to resolve legitimate grievances over terms
and conditions of employment , when that repre-
sentative attempts to discharge its statutory duties
by unlawful means. The chilling effect on the em-
ployees ' exercise of their Section 7 rights would not
be justified by the indirect protection such retalia-
tion would give the employer 's interests, which can
6 See, e g , Sears, Roebuck & Co, 274 NLRB 230 (1985), Emporium
Capwell Co Y Western Addition Community Organizations , 420 US 50
(1974), Vaca v Sipes, 386 U S 171 (1967), Ford Motor Co v Huffman, 345
US 330 (1953)
6 See fn I above
be protected directly and adequately under the
Act.7
Applying these principles , we find that the em-
ployees in this case, except Steward Bliss , cannot
be considered perpetrators of the unfair labor prac-
tice , and that their union activity was therefore
protected by the Act. Thus, the various employees
on McCain 's crew complained to their steward
about their terms and conditions of employment
and sought his advice and assistance . The Union,
through Bliss and perhaps other officials , eventual-
ly decided to file internal union charges against
McCain . The record does not suggest that the
crew employees exercised their judgment to
demand or approve that choice of procedure. Their
limited participation in the disciplinary proceedings
followed from their legitimate reliance on Bliss'
recommendation , in his official capacity, that those
proceedings were the proper means of resolving
the employees ' grievances.
This is true even though these employees might
have prevented the unfair labor practice. Thus,
before Bliss filed the charge, he presented it to the
crew employees and asked for their decision on it;
none objected to its being filed. We find, however,
that the rank -and-file employees were dependent in
this matter on their steward's guidance . Bliss also
asked the crew to sign the charge as witnesses,
which they all did . The employees then voted at
the meeting to find McCain guilty. Those actions
can be read, however, as reflecting their judgment
on the facts of the grievance and not necessarily on
the procedure.
According to the General Counsel 's complaint,
Ronnie Crane was singled out for retaliation, yet
he bears no particular responsibility for the union
misconduct . As far as the record shows, it was
mere coincidence that his signature was first on the
charge, and Bliss called him to testify at the meet-
ing for reasons known only to Bliss.
We therefore find that the complaint allegations,
if proven , would be unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
As noted , the judge did not resolve material factual
disputes regarding those allegations . Because those
disputes depend in large part on resolutions of the
credibility of witnesses , we will remand this case to
the judge to make those resolutions and findings of
fact. 6
' We note that this case does not involve a work stoppage or other
such employee conduct interfering with production or plant discipline
Different considerations , besides those discussed here, apply to those
cases
8 We are mindful of the delays that have already occurred in this case
We do not believe it will be necessary to reopen the record but that deci-
sion remains with the judge
TENN-TOM CONSTRUCTORS 467
ORDER
This proceeding is remanded to Administrative
Law Judge Philip P. McLeod for further proceed-
ings in light of this decision. The judge shall pre-
pare and serve on the parties a supplemental deci-
sion containing such resolutions, findings, conclu-
sions, and recommendations as he deems necessary,
consistent with the remand. Following service of
the supplemental decision on the parties, the provi-
sions of Section 102.46 of the Board's Rules and
Regulations shall apply.
MEMBER JOHANSEN, concurring and dissenting.
I agree that it is necessary to remand this case to
the administrative law judge to determine whether
employees were disciplined for assisting a labor or-
ganization. Unlike my colleagues, however, I
would overrule Bovee & Crail.11 That decision has
been undercut by B & W Construction 2 as a practi-
cal matter and philosophically by Wright Linea and
Metropolitan Edison.4 The vice of Bovee & Crail is
that it allows an employer to call an employee to
account as an employee for assisting a labor organi-
zation.
I would no more find that an employer may dis-
cipline employees for their actions as union officials
simply because the union may have violated Sec-
tion 8(b)(1)(B) than I would find that a union could
discipline an employer representative because the
employer had violated 8(a)(5).6 "Certainly, there is
nothing in our statute to suggest that because a
union violates one section of the Act, we cannot
find that an employer violates another section."6
' Bovee & Crad Construction Co, 224 NLRB 509 (1976)
2 B & W Construction Co, 263 NLRB 405 (1982)
9 Wright Line, 251 NLRB 1083 (1980)
4 Metropolitan Edison Co v NLRB, 460 U S 693 (1983)
b Symmetry, however, suggests that as a defense under current law
9 Brady-Hamilton Stevedore Co, 198 NLRB 147, 149 (1972), Members
Kennedy and Penello's dissent
Margaret G. Theiner, Esq., for the General Counsel.
John S. Gannon, Esq., and Arther R. Welhoelter, Esq.
(Dearborn & Ewing), of Nashville, Tennessee, for the
Respondent.
Charles T. Sykes Jr., Esq., of Gulfport, Mississippi, for
the Charging Party.
DECISION
Union of Operating Engineers, Local 624, AFL-CIO
(Union), against Morrison-Knudsen Company, Inc.,
Brown and Root, Inc., and Martin K. Eby Construction
Co., Inc., a joint venture known as Tenn-Tom Construc-
tors (Respondent).
On December 29 a complaint and notice of hearing
issued alleging that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act. An amend-
ment to the complaint issued January 18, 1983. In its
answer to the complaint, Respondent admitted certain al-
legations, including the filing and serving of the charge,
its status as an employer within the meaning of the Act,
the status of the Charging Party as a labor organization
within the meaning of the Act, and the status of certain
named individuals as supervisors and agents of Respond-
ent within the meaning of Section 2(11) and (13) of the
Act. Respondent denied the supervisory status of certain
other named individuals and denied having engaged in
any conduct which would constitute an unfair labor
practice.
At a trial all parties were represented and were afford-
ed full opportunity to be heard, to examine and cross-ex-
amine witnesses , and to introduce evidence. Following
the close of the trial, both Respondent and the General
Counsel filed timely briefs, which have been duly consid-
ered.
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Morrison-Knudsen Company, Inc., Brown and Root,
Inc., and Martin K. Eby Construction Co., Inc., a point
venture known as Tenn-Tom Constructors is a corpora-
tion with an office and place of business in luka , Missis-
sippi, where it has been engaged in construction work
performed on the Tennessee-Tombigbee Waterway
Project.
During the past calendar year, which period is repre-
sentative of all times material herein, Respondent pur-
chased and received at its Iuka, Mississippi facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Mississippi.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
0
II. LABOR ORGANIZATION
International Union of Operating Engineers, Local
624, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
STATEMENT OF THE CASE
PHILIP P . MCLEOD, Administrative Law Judge. This
case was heard before me on February 3, 4, 22, and 23,
1983, in Tupelo, Mississippi. It originated from a charge
filed on November 12, 1982, and amended on December
23, 1982,1 in the above-captioned case by International
1 All dates herein refer to 1982 unless otherwise indicated
III. THE UNFAIR LABOR PRACTICES
A. Allegations and Issues
The complaint, as amended, alleges that during a
period from July through October 1982, Respondent,
acting through General Foreman Winston Howell and
Foreman George McCain, violated Section 8(a)(1) of the
Act by various acts and conduct, including telling em-
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees not to talk to their union representative , threat-
ening employees with discharge and layoff because they
filed charges against McCain in an internal union pro-
ceeding, and subsequently testifying at an internal union
trial regarding those charges . It alleges that McCain
promised employees unspecified benefits if they voted
for McCain in the upcoming internal union trial and
threatened employees with discharge if McCain did not
prevail in that trial . The complaint further alleges that
Respondent violated Section 8(a)(3) and (1) of the Act
by reducing the work hours of employee Ronnie Crane
on September 22 and 23, and subsequently laying off
Crane on October 23, 1982, because of Crane's role in
processing the internal union charges against McCain
and subsequently testifying at the internal union trial.
Respondent denies that either Howell or McCain are
supervisors within the meaning of the Act and denies
having made any of the coercive remarks or threats re-
ferred to above. Respondent admits that Crane was sent
home from work early on September 22 and 23, but con-
tends that this was done solely because work was un-
available. Respondent further admits that Crane was laid
off on October 22, but contends that Crane's layoff was
part of a general shutdown of construction work in the
fall which finally culminated with all employees being
laid off for the winter on November 22. Respondent fur-
ther contends that Crane was laid off while another less
senior employee was retained because the decision of
which employee to lay off was made solely on the basis
of productivity and not on the basis of seniority.
B. Background
Tenn-Tom Constructors is a joint venture formed by
Morrison -Knudsen Company, Inc., Brown and Root,
Inc., and Martin K. Eby Construction Co., Inc., to per-
form construction work on the Tennessee-Tombigbee
Waterway Project in Mississippi . This project is a multi-
million-dollar operation in which Respondent is involved
in the removal of dirt from a canal excavation more than
10 miles long.
In February 1975 Respondent entered into a pro-
jectwide collective-bargaining agreement with five labor
organizations , one of which is the Union. This agree-
ment , or its successor , was in effect at all times relevant
to this case.
Pursuant to the collective-bargaining agreement and,
as is not uncommon in the construction industry, Gener-
al Foreman Winston Howell and Foreman George
McCain were members of the Union. Wage rates of both
general foreman and foreman are contained in the collec-
tive-bargaining agreement , and these positions are other-
wise covered by the agreement as if they were members
of the bargaining unit.
C. Supervisory Status of Howell and McCain
Respondent's maintenance shop is under the overall
supervision of a master mechanic. On the third shift, this
indivudual is Al Brown. Brown is assisted on the third
shift by Howell and McCain.
The general foreman shares an office with the master
mechanic . The general foreman does not have a separate
desk in that office because most of his time is spent
moving throughout the work area, but he does have a
filing cabinet there in which he keeps specification books
and other records he refers to in performing his job. The
foreman, however, does not have an office.
Harold Kimbrough, who has worked for Respondent
for 3- 1/2 years in positions both as general foreman and
as foreman, testified credibly about the general duties
and responsibilities of those positions. According to that
testimony, the general foreman and master mechanic al-
ternated in the preparation of employee timesheets. The
master mechanic and general foreman were required to
check each other's work reports for accuracy. Time-
sheets showing the number of hours employees worked
were filled out by the employees themselves and turned
in to the foreman. The foreman confirmed the accuracy
of the employee report, initialed the report, and gave it
to the general foreman. From these individual reports,
timesheets were prepared by the general foreman and the
master mechanic, both of whom signed the sheets before
they were forwarded to Respondent's payroll office for
payment to employees. Both the foreman and the general
foreman have the authority to excuse employees for ab-
sences.
Neither the foreman nor the general foreman have the
authority independently to hire employees. The general
foreman, however, does interview prospective employees
in conjunction with the master mechanic and recom-
mends to him whether they should be hired . It is also
common for both the foreman and the general foreman
to recommend that certain individuals they think worthy
be transferred and/or promoted to higher work classifi-
cations , and these recommendations are generally fol-
lowed. Both the foreman and the general foreman drive
company vehicles which are different from those driven
by rank-and-file employees. Employee Jack Aired, who
had worked for Respondent as a foreman, provided simi-
lar credible testimony regarding the duties and responsi-
bilities of foremen generally.
Though Respondent's labor relations/EEO officer,
Doug Schiebler, testified that neither the foreman nor
the general foreman attended monthly supervisory meet-
ings held by Respondent, Aired testified that he had at-
tended such meetings regularly. Both Kimbrough and
Aired testified credibly in contradiction to Schiebler that
both the foreman and the general foreman had authority
to, and regularly did, issue written reprimands to em-
ployees deserving of them without prior consultation
with, or permission from, their own supervisors. Kim-
brough, in fact, terminated employees without any dis-
cussion or consultation with the master mechanic.
Schiebler testified that the foreman and the general fore-
man had no authority to issue written reprimands to em-
ployees other than safety warnings and that those could
be issued not only by supervisors, but also by craft em-
ployees to one another. I find this testimony incredible.
Master mechanic Al Brown, also a Respondent witness,
testified that employees did not reprimand one another,
and I reject Schiebler's assertion. Brown himself testified
that both the foreman and the general foreman had au-
thority to issue written reprimands to employees for con-
TENN-TOM CONSTRUCTORS
duct other than safety violations. General Foreman
Howell and Foreman McCain confirmed Brown' s testi-
mony on this point, and I find such to be the case.
The one point which is crystal clear about the author-
ity of both the general foreman and the foreman, which
even Respondent does not seriously contest , is that using
only general guidelines and parameters conveyed to the
foreman through the general foreman, the foreman, using
his own independent judgment, assigns work to employ-
ees. Using that same independent judgment, the foreman,
including McCain specifically, reassigns employees from
one work task to another as he sees fit. The general fore-
man also possesses and exercises authority to reassign
employees from one work crew to another, and this fact
is admitted, even by Schiebler. Master mechanic Brown
confirmed that it was the foreman who assigned work
and who talked with individual employees about their
job performance when necessary. Brown even testified
that when he saw poor work being performed by an em-
ployee, rather than approach the employee directly,
Brown went to the foreman whose job it was to straight-
en out the problem. Brown also confirmed the general
testimony of Kimbrough that when employees were pro-
moted, it was the result of a recommendation made
either by the foreman or the general foreman.
The record here is quite clear, as Respondent argues,
that neither the foreman nor the general foreman pos-
sessed all of the indicia of supervisory authority enumer-
ated in Section 2(11) of the Act. For example, neither
could independently decide to hire new employees. Nei-
ther could they independently determine that fewer em-
ployees were needed and affect a layoff. As Respondent
notes, both the general foreman and the foreman worked
within guidelines or general parameters estaablished by
the master mechanic. Both the foreman and the general
foreman are covered by the collective-bargaining agree-
ment between Respondent and the Union as if they were
members of the bargaining unit. This last point, however,
is not uncommon in the construction industry and, in any
event, is not controlling on the issue. Further, it is well
settled that for an individual to be found to be a supervi-
sor within the meaning of the Act, it is not necessary
that they possess all the indicia of supervisory authority
enumerated in the Act. A person is considered to be a
supervisor if he possesses any of the defined authority.
The record here shows that Winston Howell as gener-
al foreman and George McCain as foreman possessed
and exercised substantial supervisory authority. Based on
that authority, which is detailed above, and particularly
on the authority to assign and reassign work to employ-
ees, to assign and reassign employees to various crews,
to issue written reprimands to employees for poor per-
formance or the infraction or work rules and policies,
and to effectively recommend employees for promotions,
transfers, and layoffs, I find that General Foreman Win-
ston Howell and Foreman George McCain are supervi-
sors within the meaning of Section 2(11) of the Act, and,
as such, are agents of Respondent within the meaning of
Section 2(13) of the Act.
469
D. Alleged Interference With Employee Rights
At various times throughout the summer of 1982, em-
ployees in the maintenance department, who worked
under the supervision of Foreman McCain, complained
to Union Shop Steward and Thomas Bliss about the way
in which McCain treated them. Specifically, employees
complained repeatedly about McCain calling them ob-
scene names and "riding" them to such a point that they
were continuously upset. Bliss first tried to resolve the
problem informally, but to no avail. Finally, Bliss met
with the job superintendent, Master Mechanic Al Brown,
and General Foreman Winston Howell to discuss
McCain's behavior. ]During this meeting , the job supenn-
tendent suggested that, from then on, Bliss and General
Foreman Howell take care of the personnel problems di-
rectly, leaving Brown and McCain out of the matter al-
toghther. Bliss agreed . It is not clear what action, if any,
Respondent took directly with McCain as a result of this
meeting . Subsequent to the meeting, however , Bliss con-
tinued to receive complaints from employees about
McCain's behavior. Bliss spoke with Howell on several
occasions. Again it is not clear what, if anything, Howell
did to attempt to control McCain. Bliss continued to re-
ceive complaints and report them to Howell.
During the latter part of July, Howell approached em-
ployees who worked under McCain on the third shift
while they were on their supperbreak. Howell told the
employees he wanted to talk to them about Bliss' com-
plaints . Employee Donald Alexander testified credibly
that during this meeting Howell told employees if they
had any problems with McCain, they were to come to
Howell and not to go to Bliss. Alexander also testified
on direct examination that if any of the employees were
caught talking to Bliss, they would be terminated. On
cross-examination, Alexander quickly and candidly quali-
fied his testimony to the effect that Howell said employ-
ees would be terminated if caught talking to Bliss during
working hours and without Howell 's permission . Alexan-
der further admitted that it had always been Respond-
ent's policy that if an employee had a problem which re-
quired that he talk to the union steward while on the
job, the employee should first get permission from the
foreman to leave his work and go and talk to the stew-
ard. The General Counsel's witness, Jack Aired, con-
firmed the existence of this policy. General Foreman
Howell denied telling employees during this meeting that
it they were caught talking to Bliss, they would be ter-
minated. Howell's testimony is not a direct denial of Al-
exander's testimony, as qualified on cross-examination.
Even if it were, however, I would credit Alexander's
version and, based on it, I find that Howell made the
statements attributed to him by Alexander, as qualified
on cross-examination . Specifically, I find that Howell
told employees that if employees had problems with
McCain, they were to come to him and not to go to
Bliss . Howell also stated that if employees were caught
talking to Bliss during, working hours without Howell's
permission , they would be terminated. Howell himself
admits that during this meeting with employees, he told
employees he was disappointed that employees had gone
to Bliss regarding what he termed a "morale problem"
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and had not come to him. Howell also admits he told
employees there was nothing they could do about the
way they were talked to by McCain and that, instead of
going to Bliss, employees should come to Howell, who
was the one who could handle the problem.
E. Internal Union Charge Against McCain and
Subsequent Events
About Thursday, July 29, or Friday, July 30, Bliss had
a conversation directly with McCain about the employ-
ees' complaints, Bliss ' testimony suggests that the con-
versation began on a friendly note but developed into a
confrontation. Apparently, the early part of the conver-
sation related to matters other than McCain's treatment
of employees. After Bliss and McCain had talked for
some time , however, Bliss broached the subject of
McCain's relationship with the employees. Bliss began by
saying, "George, when are you going to stop doing these
boys the way you are?" McCain replied, "Well, I'm
going to have to correct my problems. I know I've got
problems." Bliss responded, "Well, let's correct them,
and stop these complaints." According to Bliss , McCain
agreed to try to do that . Bliss and McCain continued
talking. Then Bliss told McCain, "Now, George, the
next complaint I get, I'm not coming to you , and I'm not
going to talk to you, but I will just have to file charges,
and see if we can stop you that way." McCain became
upset, responding, "Well, my advice would be to just go
ahead and file charges." Bliss replied, "Okay, that's fine
with me." The conversation ended.
At the end of the work shift following this conversa-
tion between McCain and Bliss , Bliss called a meeting of
employees. Bliss told the employees, "Boys, I've went
just as far a I can go. I can't get any cooperation out of
George." Bliss told the employees he had tried to get
help from Schiebler and had received no satisfaction.
Bliss then told the employee, "The only thing that's left
for me to do is file charges. Now I'm going to leave it
up to you boys. I'm the job steward, but you are the
boys I'm representing. You make the decision." The em-
ployees told Bliss to go ahead and file charges against
McCain. Bliss told the employees he would prepare the
charges against McCain and then meet with employees
again . McCain testified that he observed employees
meeting with Bliss after work in the parking lot. McCain
approached the assembled group to try to talk to the em-
ployees while they were with Bliss but , as McCain ap-
proached, the employees left.
On the following day at the conclusion of the work
shift, Bliss met with employees. Bliss showed them inter-
nal union charges which he had prepared against
McCain. After employees read and approved the
charges, Bliss signed the charges and all 11 employees
present signed as "witnesses." At the top of the list of
employee signatures is that of Ronnie Crane.
The charge against McCain, dated August 1, 1982,
reads in its entirety:
I, Thomas W. Bliss, would like to file charges
against George McCain under Article XXIV-
Subdiv, 7 Section (E), under the Constitution of the
International Union of Operating Engineers. Mr.
McCain is a foreman employed with M & K on the
Tenn. Tom waterway. I. Thomas W. Bliss, am a
Job Steward on the same job.
The following is the list of charges to be brought
against Mr. McCain.
Mr. McCain has the right to try out machinery
after the mechanics have made repairs, but he is
constantly operating machines over and above his
right. On some occasions, he has told the labourers,
who run the Steam Cleaners, to operate the ma-
chines and even going to the extent of having the
laborers move the machines to the loading ramps,
or to the shop for repairs. Mr. McCain is also fore-
man over the Steam Cleaner Boys. He has on two
separate occasions threatened either to terminate
them and others if they were caught or even heard
of talking to me, the job Steward (Thomas Bliss).
Mr. McCain continuously steps in front of the Me-
chanics and works with wrenches, obstructing the
Mechanics work. He also steps in and flags Opera-
tors picking up loads for the Mechanics, when they
are already flagging the operator. Mr. McCain will
grab a sledge hammer and use it. Mr. McCain is
constantly threatening to either terminate or repri-
mand someone for no valid reason.
I, Thomas W. Bliss, receive complaints against
Mr. McCain regularly. I see these acts myself, but
when I confront Mr. McCain on these matters, he
answers me that he can do anything he wants, or in
one case , he said, " I can't help doing the work."
The majority of time he uses the excuse that he is
showing the Mechanics how to do the work. Mr.
McCain's men are all qualified to do the work. Mr.
McCain has threatened just about all of his men at
one time or the other with termination or repri-
mands. He is very sarcastic with his men.
Mr. McCain was General Foreman at one time
with this company. He was set back to Mechanic
Foreman in the Field, then set back to Mechanic
last winter. He was then set back up to foreman
when another foreman quit.
All complaints made to me are done so after
work, in the parking lot, and not ever on Company
time , Listed below my signature are witnesses to
the above charges.
The charge against McCain was processed at a prelim-
inary hearing before the Union's executive board which
referred the matter to the union membership for trial.
That was held on September 22. At the trial, both Bliss
and McCain had the opportunity to call witnesses and to
present their case to the union membership. When given
the opportunity, Bliss said that he thought one witness
would be sufficient to prove the charges. Bliss called
Crane to testify. Bliss asked Crane whether the charges
against McCain were true. Crane testified that he had
worked for Respondent for 2-1/2 years and that he had
"seen it all ." McCain was given the opportunity to cross-
examine Crane and did so. McCain called as his only
witness General Foreman Howell. McCain was found
guilty of the charges against him and fined $100. The
fine was suspended, and McCain was put on probation,
TENN-TOM CONSTRUCTORS
such that if he was ever again found guilty, the fine
would be reinstated.
The General Counsel contends that as a result of the
internal union charge against McCain and the subsequent
trial in which McCain was found guilty, McCain and
Howell engaged in various acts and conduct which con-
situted unfair labor practices on the part of Respondent.
In detail , the General Counsel contends that the follow-
ing acts took place:
1. In September 1982 after the charges were filed,
but before the Union trial, General Foreman
Howell had a second meeting with employees
during the supperbreak. Howell is alleged to have
told employees that Superintendents John Wright
and Pat Manott had obtained copies of the charges
and had threatened to fire Howell because Howell
let the situation get out of control; that Master Me-
chanic Brown had advised Howell to fire all the
employees involved; that Schiebler told Howell to
fire all the employees involved, but Howell said he
was not going to do so; that because employees
liked Union Steward Bliss so much, Howell was
going to transfer Bliss to the slab area where the
employees worked; that if employees did not like
the way things were going, Howell could fire
"every damn one of them"; and that if employees
did not vote for McCain in the upcoming union
trial , Howell would fire "every damn one" of the
employees.
2. On September 21, 1982, the day before the in-
ternal union trial, Foreman McCain approached em-
ployee Waymon White on the job; asked White to
vote for him in the trial; told White that if he did
vote for McCain, things would be better for White;
and told White that if he did not vote for McCain,
McCain would fire White along with the rest of the
employees involved.
3. On the night of September 22, following the
internal union trial held earlier that evening during
which Crane testified in support of the charges
brought by Bliss against McCain, Crane was sent
home early from work by McCain.
4. On the night of September 22, following the
internal union trial, General Foreman Howell is al-
leged to have approached employees Waymon
White and John Hyde, White's helper, at their work
station and stated that because Crane "showed his
ass so much at the trial," Howell was going to fire
Crane.
5. Also on the night of September 22, Howell is
alleged to have once again come to the slab area
where employees worked and held a meeting with
employees. Howell is alleged to have told the em-
ployees that they had disappointed him, and that
Howell had been told by Master Mechanic Brown
"and the ones on the hill" that when it came time
for a layoff, the employees who participated in
bringing the charges against McCain would be the
first ones laid off or singled out to be fired.
471
6. On the evening of September 23, the second
work shift following the internal union trial, Crane
was again sent home from work early.
7. A short time prior to Crane being laid off on
October 23, White told Howell that he had heard a
rumor Crane was going to be laid off. Howell alleg-
edly replied that Crane "made such an ass of him-
self" that he was going to be the first person laid
off.
8. On October 23, Crane was laid off, while other
employees continued working until November 22
when the entire project was shut down for the
winter months.
9. On October 23, Bliss asked Howell why Crane
had been laid off. Howell allegedly responded that
it was because Crane "showed his ass," would not
work, would sit around and smoke and drink coffee,
and would not get to work when told to do so.
Howell is then alleged to have told White that if
White and Bliss did not like the way things are run,
they would be the next to go.
10. On October 23, the same day that Crane was
laid off, Waymon White, in the presence of Hyde,
told Howell that he had heard rumors to the effect
that everyone was going to be laid off and asked
Howell when that would occur. Howell allegedly
answered that White and Bliss would be the first
ones to go because they caused a lot of trouble, and
that if they did not like the way Howell treated
Crane, they could go immediately.
Both Howell and McCain denied making the various
statements attributed to them by the General Counsel's
witnesses . For the reasons explained below, I find it un-
necessary to resolve those credibility conflicts or to
make any findings with regard to the reason for Crane
being sent home early from work or later being laid off.
Analysis and Conclusions
I have determined that as a result of the employee
complaints to Bliss about Foreman McCain and conver-
sations which Bliss then had with General Foreman
Howell, Howell approached employees as a group in late
July to discuss these matters. I have found, contrary to
the General Counsel's position, that during this conversa-
tion, Howell did not tell employees (simply) that if any
of them were caught talking to Bliss, they would be ter-
minated. Rather, I credit employee Alexander and, based
on his testimony on both direct and cross-examination, I
have found Howell told employees that if they were
caught talking to Bliss during working hours without
permission, they would be terminated. The General
Counsel's witnesses confirm that such a rule had existed
long before Howell's conversation with employees in
late July. I agree with Respondent that the Act does not
require an employer to allow employees to leave their
work stations at will in order to discuss preceived griev-
ances with union representatives, and I find that this
statement by Howell to the employees does not consti-
tute a violation of Section 8(a)(1) of the Act. In that con-
versation with employees, however, Howell went further
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than to simply enforce or reinforce an existing work rule.
More specifically, I have found that Howell also told
employees to come to him with any problems they might
have and not to go to Bliss. Howell himself admits he
told employees there was nothing they could do about
the way they were talked to by a supervisor, and that,
instead of going to Bliss, employees should go to Howell
who could handle the situation. Howell admitted that the
reason for these statements to employees was that he
perceived such matters to be personnel problems and not
union concerns. It is clear that by these statements to
employees, Howell was attempting to discourage em-
ployees from discussing work-related matters with their
labor organization, and Howell as much as admits this. I
find that Howell's statements in the form of a direction
to employees that they not discuss such matters with
their labor organization violated Section 8(a)(1) of the
Act.
With regard to the statements allegedly made by
Howell and McCain to employees, Crane being sent
home from work early on September 22 and 23, and
Crane's layoff on October 23, all as a result of the inter-
nal union charges brought against McCain and the subse-
quent trial and discipline imposed against McCain, there
is the threshold question whether Crane, Bliss , and other
employees who participated in bunging those charges
were engaged in activity which is protected by the Act.
I have determined that it is unnecessary to find whether
Respondent, through Howell and McCain, engaged in
the conduct advanced by the General Counsel because I
am persuaded that the employees' actions, including
those of Crane, were not protected activity. The com-
plaints made by employees to Bliss about McCain calling
employees obscene names and supervising them in a
overbearing manner which interfered with their ability to
be productive represents a classic conflict between em-
ployees and their supervisor. The complaints by employ-
ees to the Union were clearly protected activity. The
collective-bargaining agreement between Respondent
and the Union contains a grievance procedure which, in
its final stage , calls for final and binding arbitration when
the parties are not otherwise able to resolve disputes.
After Bliss had discussed employee complaints about
McCain with various representatives of management, in-
cluding a superintendent on one occasion and General
Foreman Howell on several occasions, Bliss, Crane, and
other employees acting in concert with them chose not
to file a grievance pursuant to the collective-bargaining
agreement , but rather to bring internal union charges
against McCain.
The internal union charges on their face, and indeed
the entire record in this case, reflects that employee
complaints about McCain were twofold. First and fore-
most was the way in which McCain supervised employ-
ees. Second was the fact that McCain from time to time
performed duties which employees believed were appro-
priately bargaining unit work pursuant to the terms of
the collective-bargaining agreement. The internal union
charges brought against McCain had as their object an
attempt to influence McCain in the way he supervised
employees and an attempt to impose on McCain the em-
ployees' and the Union's interpretation of the collective-
bargaining agreement regarding bargaining unit work. It
is now well settled that a union violated Section
8(b)(1)(B) of the Act by imposing internal union disci-
pline against a supervisor for the manner in which he
performs his duties as a supervisor. Dallas Mailers Union
Local 143 (Dow Jones), 181 NLRB 286 (1970), enfd. 445
F.2d 730 (D.C. Cir. 1971). Similarly, a union violates
Section 8(b)(1)(B) of the Act by imposing internal union
sanctions against a supervisor-member in an attempt to
impose on him the union 's interpretation of a collective-
bargaining agreement . Carpenters Local 1089 (M. Green-
berg Construction), 217 NLRB 999 (1975). I find that the
internal union charges brought against McCain and the
internal union discipline imposed on him violated Section
8(b)(1)(B) of the Act. Clearly, this is not a case brought
against the Union, and no remedy may be issued by me
with respect to its actions against McCain. Nevertheless,
if the internal union charges and discipline leveled
against McCain were unlawful, it stands to reason that
the conduct of Bliss, Crane, and other employees acting
in concert with them was unprotected by the Act. Stated
differently, if the internal union charges and discipline
leveled against McCain were unlawful, is there any way
in which Crane's active role in bringing and pursuing
those charges against McCain might, nevertheless, be
considered protected activity9 I think not.
The cases cited by the General Counsel are inapposite.
Her argument is primarily one of analogy and carries
little weight. Moore-McCormack Lines, 172 NLRB 278
(1968), which contains language to the effect that a
member who brings internal union charges against a su-
pervisor-member is engaged in protected activity was de-
cided before Dallas Mailers Union , supra . Moreover, a
careful reading of that decision reveals that the language
quoted and most heavily relied on by the General Coun-
sel actually comes from a discission of the relevance of
whether a charge was in fact brought against the super-
visor-member. There is nothing in that decision to sug-
gest that the Board specifically considered whether the
bringing of an internal union charge against a supervisor-
member for conduct engaged in as a supervisor consti-
tutes activity protected by the Act. The General Coun-
sel's citation of Western Exterminator Co., 223 NLRB
1270 (1976), is similarly misplaced. In that case, the con-
duct which the discharged employee was protesting was
the unlawful dual capacity of his supervisor also being
union president. The conduct for which the employee
was discharged was the bringing of an unfair labor prac-
tice charge with the Board. It is true that in Industry
General Corp., 225 NLRB 1230 (1976), the Board, with-
out comment, upheld the decision of an administrative
law judge who found that an employee had been dis-
charged unlawfully because the employee had threatened
to file internal union charges against a general
foreman/supervisor. The decision of the judge and the
Board in that case, however, reflects that the issue raised
here was not raised in that case and, therefore, was not
considered or discussed by either the judge or the Board.
Accordingly, I do not find that decision to be control-
ling. I have carefully considered the cases cited by the
General Counsel, as well as her emotional plea that "re-
TENN-TOM CONSTRUCTORS 473
gardless of the lawfulness of the [Union's] action in the
present case , it is Ronnie Crane as an individual member
whose rights to engage in union activity , is in issue and
more importantly, is in jeopardy." I find nothing in the
cases cited by the General Counsel to support the argu-
ment that Crane's activity should be considered protect-
ed even if the charges and discipline leveled against
McCain are unlawful. Such a result would not only be
illogical and inconsistent, but against public policy for it
would serve no other purpose than to insulate employees
and thereby encourage them to sponsor or actively sup-
port unlawful conduct by their bargaining representative.
Though it may seem harsh to some, Crane, Bliss, and the
other employees who actively participated in bringing
and pursuing the unlawful internal union charges against
McCain must be accountable for their own actions. Ac-
cordingly, I find that those actions are not protected by
the Act. Consequently, I find that even if Respondent,
through Howell and McCain, engaged in the conduct at-
tributed to them by the General Counsel, including send-
ing Crane home from work early on September 22 and
23, and laying off Crane on October 23, such conduct
does not constitute a violation of the Act. Accordingly, I
shall recommend that those allegations of the complaint
be dismissed.
CONCLUSIONS OF LAW
1. Morrison-Knudsen Company, Inc., Brown and
Root, Inc., and Martin K. Eby Construction Co., Inc., a
joint venture known as Tenn-Tom Constructors is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local
624, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. General Foreman Winston Howell and Foreman
George McCain, at all times material, were supervisors
of Respondent within the meaning of Section 2(l1) of
the Act and, as such, agents of Respondent within the
meaning of Section 2(13) of the Act.
4. In late July 1982, General Foreman Winston Howell
told employees to come to him with any problems they
had with Foreman George McCain and not to go to the
union shop steward, Thomas Bliss . Howell further told
employees there was nothing they could do about the
way they were talked to by McCain and that instead of
going to Bliss , employees should go to Howell who
could handle the situation. By these statements, Respond-
ent interfered with and discouraged employees from ex-
ercising their rights guaranteed by the Act, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
5. Union Shop Steward Bliss , employee Ronnie Crane,
and other employees who actively sponsored and partici-
pated in bringing internal union charges against Foreman
George McCain because of McCain's conduct as a super-
visor and in order to impose on McCain the Union's in-
terpretation of the collective-bargaining agreement be-
tween the Union and Respondent were engaged in con-
duct which is not protected by the Act and, as a result,
conduct which Respondent might have engaged in as a
result of those charges having been brought and as a
result of the internal union discipline imposed against
McCain, cannot be found to violate Section 8(a)(3) and
(1) of the Act. Except as specifically found above, Re-
spondent has not otherwise violated the Act, as alleged
in the complaint, and those portions of the complaint
shall be dismissed.
6. The unfair labor practices which Respondent has
been found to have engaged in, as described above, 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 com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]