Tillford Contractors

National Labor Relations Board - Board Decisions

Apr 27, 1995

317 N.L.R.B. 68 (N.L.R.B. 1995)

68
317 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There is no contention that Miller was a supervisor within the
meaning of Sec. 2(11) of the Act.
2 The judge found that credibility is not an issue because there is
no factual dispute. Nevertheless, he specifically credited the testi-
mony of Miller and Tillford.
Tillford Contractors and Donald Battoe. Case 26–
CA–16111
April 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 21, 1994, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in response to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaint alleges that the Respondent dis-
charged Donald Battoe because he engaged in union
and/or protected concerted activity. The judge con-
cluded that the Respondent’s owner, Lewis Tillford,
lawfully discharged Battoe for what Tillford consid-
ered to be insubordination. For the reasons given
below, we find that Battoe was unlawfully discharged
for engaging in conduct which was concerted and pro-
tected.
The facts are largely undisputed. On February 2,
1994, Donald Battoe and Kevin Miller were referred to
the Respondent’s jobsite by the Plumbers and Pipe-
fitters Local 184. The Union designated Battoe the job
steward. The Respondent made Miller the working
foreman.1 Battoe and Miller were initially supervised
by Area Foreman Lynn Simmons. Around February
11, Simmons informed Miller that he would be bring-
ing Donald Baucum to the site to act as a materials ex-
pediter. Miller testified that he assumed he would be
supervising Baucum. When Baucum arrived on Feb-
ruary 14, however, Miller observed that his actions
were more consistent with those of an area foreman
than a materials expediter. Accordingly, several hours
after his arrival, Miller asked Baucum if he was re-
placing Simmons as the area foreman. Baucum re-
sponded that he was just told to be at the site. Miller
repeated the question later that day and the following
morning. Each time, he received the same response.
On February 15, Miller told Battoe that he thought
the collective-bargaining agreement prohibited the Re-
spondent from assigning an employee to be area fore-
man over more than one job. If correct, that would
mean the Respondent’s assignment of Baucum as their
area foreman would arguably violate the agreement
since he was already an area foreman at another job.
Miller also told Battoe that he had asked Baucum three
times what his position was and Baucum had refused
to tell him.
Battoe then attempted to determine Baucum’s job
status. Battoe testified that he asked Baucum if he was
their area foreman, to which Baucum merely replied
that Tillford had sent him to the job. Battoe then told
Baucum, ‘‘If you’re our area foreman, ain’t you area
foreman on two more different jobs? . . . I believe in
this agreement, that you can’t be area foreman on two
or three jobs,’’ and he threatened to bring internal
union charges against him for violating the collective-
bargaining agreement. Miller, who overheard the con-
versation, testified that Battoe also said ‘‘You’ve got
no goddamn business being here,’’ and ‘‘The best
thing you could do is get the hell away from us.’’2
Baucum gave a different account than either Battoe
or Miller of exactly what was said during the con-
versation. According to Baucum, Battoe first asked
him ‘‘What are you doing here?,’’ and he replied that
Tillford had sent him to the job to help Miller. Battoe
then said that he had no business being on the job, and
that he could not be their area foreman because he was
area foreman at another of the Respondent’s jobs.
Baucum could not remember whether Battoe specifi-
cally mentioned the collective-bargaining agreement.
Following the conversation, Baucum attempted to
contact Union Business Agent Benny Brown to deter-
mine whether the contract prohibited his being on the
job. After he was unable to reach Brown, he went to
Tillford’s office and asked to review a copy of the col-
lective-bargaining agreement. He and Tillford exam-
ined the contract and determined that it allowed the
Respondent to place Baucum at the jobsite as an area
foreman.
Tillford testified that he decided to fire Battoe after
Baucum told him that Battoe said he had no
‘‘goddamn’’ business being on the job. He contacted
Benny Brown, however, before carrying out his deci-
sion. He learned for the first time from Brown that
Battoe was a job steward. He remained resolute in his
decision to discharge Battoe however, because he
could not abide an employee ‘‘talking back’’ and
‘‘sticking his nose where he had no business.’’
Battoe, in attempting to ascertain Baucum’s job sta-
tus, was engaged in protected concerted activity. The
information he sought was necessary in order to deter-
mine whether the Respondent was violating the collec-
tive-bargaining agreement. When an employee makes
an attempt to enforce a collective-bargaining agree-
69TILLFORD CONTRACTORS
3 In its brief in support of the judge’s decision, the Respondent as-
serts that Battoe did not make reference to the collective-bargaining
agreement in his conversation with Baucum. We note, however, that
Battoe’s testimony that the contract was referred to is uncontradicted
and to some extent corroborated by Miller’s testimony. Baucum
merely testified that he could not remember whether Battoe referred
to the agreement and Miller testified that Battoe referred to the
agreement when he threatened to file internal union charges against
Baucum.
4 See, for example, NLRB v. Chelsea Laboratories, 825 F.2d 680,
683 (2d Cir. 1987) (protection not lost because grievance presented
in a rude and disrespectful manner); NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965) (conduct protected even though
employee called his manager a ‘‘horse’s ass’’); and Severance Tool
Industries, 301 NLRB 1166, 1169 (1991) (protection not lost be-
cause employee raised his voice at respondent’s president and called
him a ‘‘son of a bitch’’).
5 Member Cohen finds that Battoe invoked the collective-bargain-
ing agreement. In this regard, Battoe testified that he expressly re-
ferred to the contract in his conversation with Baucum. (Baucum
does not deny the reference.) More importantly, the person who
made the discharge decision (Tillford) knew that Battoe was invok-
ing the contract. Indeed, Baucum and Tillford examined the contract
to see if Battoe’s claim was correct. Tillford concluded that Battoe’s
claim was incorrect, and proceeded to discharge him for forcefully
making that claim. Irrespective of whether Baucum was correct in
his claim, it is clear that the claim was made in good faith. In these
circumstances, the discharge was unlawful. Finally, under any ver-
sion of the February 15, 1994 conversation, Battoe’s comments to
Baucum did not exceed the Act’s protections. Thus, Member Cohen
agrees with his colleagues that the Respondent violated the Act.
ment, he is acting in the interest of all employees cov-
ered by the contract. It has long been held that such
activity is concerted and protected under the Act.
Interboro Contractors, 157 NLRB 1295 (1966). An
employee making such a complaint need not specifi-
cally refer to the collective-bargaining agreement. As
long as the nature of the complaint is reasonably clear
to the person to whom it is communicated, and the
complaint does, in fact, refer to a reasonably perceived
violation of the collective-bargaining agreement, the
complaining employee is engaged in the process of en-
forcing that agreement. Bechtel Power Corp., 277
NLRB 882, 884 (1985); Roadway Express, 217 NLRB
278, 279 (1975); NLRB v. City Disposal Systems, 465
U.S. 822, 840 (1984).
The judge found that Battoe did not pose the ques-
tion of Baucum’s position in a reasonably clear man-
ner. We disagree. According to Miller, whose testi-
mony was credited by the judge, Battoe specifically
asked Baucum whether he was their area foreman.
Miller also testified that Battoe threatened to file inter-
nal union charges against Baucum for violating the
collective-bargaining agreement. Furthermore, Baucum
testified that Battoe told him he could not be their area
foreman because he was already an area foreman on
another job. Baucum’s subsequent attempts to deter-
mine whether his presence on the site violated the con-
tract indicate that he understood the issue was a con-
tractual one.3 Thus, we find that Battoe’s complaint
did concern a reasonably perceived violation of the
agreement and it was posed reasonably clearly to
Baucum.
The judge also found that the Respondent was un-
aware of Battoe’s status as a steward when it made the
decision to discharge him. First, Battoe’s conduct of
enforcing the contract is protected concerted activity
even if engaged in by an employee who is not a stew-
ard. Second, by the time the Respondent actually car-
ried out the discharge it was aware that Battoe was the
Union’s steward and that it was discharging him for
his activities as a steward.
Having found that Battoe was engaged in protected
concerted activity, we turn to the question whether he
in some manner lost the protection of the Act.
We find that Battoe did not engage in conduct
which removed him from the Act’s protection. His
comments to Baucum that he had ‘‘no goddamn busi-
ness’’ on the job and that ‘‘the best thing [he] could
do was to get the hell away,’’ were directly related to
his protected and concerted activity of attempting to
enforce the collective-bargaining agreement. In order
for an employee engaged in such activity to forfeit his
Section 7 protection his misconduct must be so ‘‘fla-
grant, violent, or extreme’’ as to render him unfit for
further service. United Cable Television Corp., 299
NLRB 138 (1990), quoting Dreis & Krump Mfg., 221
NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir.
1976). It is undisputed that Battoe did not threaten or
engage in acts of violence. Further, although the Re-
spondent characterizes Battoe’s conduct as insubordi-
nate, at most, his conduct was profane and disrespect-
ful. It is well established that some profanity and even
defiance must be tolerated during confrontations over
contractual rights.4 We find that Battoe’s conduct was
not so flagrant or extreme as to remove him from the
Act’s protection. We therefore find that the Respond-
ent discharged Battoe for engaging in protected activ-
ity in violation of Section 8(a)(3) and (1) of the Act.5
CONCLUSIONS OF LAW
1. The Respondent, Tillford Contractors, is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(3) and (1)
of the Act by its discriminatory termination of Donald
Battoe on February 16, 1994, because he engaged in
the protected and concerted activity of seeking enforce-
ment of provisions of the collective-bargaining agree-
ment.
3. The unfair labor practice affects commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act, we shall order it to
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If 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.’’ 1 Name as it appears in the complaint and formal papers.
cease and desist, and to take certain affirmative action
necessary to effectuate the policies of the Act. Specifi-
cally, we shall order the Respondent to reinstate Don-
ald Battoe and to make him whole for the losses he
sustained as a result of the discrimination against him,
less interim earnings. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Further, having found that the
Respondent instructed the Union not to refer Donald
Battoe for further employment, we shall order the Re-
spondent to notify the Union, in writing, that it will ac-
cept him for employment in the future. In addition, be-
cause the project has been completed and the employ-
ees are dispersed, we shall order the Respondent to
mail copies of the notice marked ‘‘Appendix’’ to all
individuals who were employed on the project. See,
e.g., Wheelco Co., 260 NLRB 867, 868 fn. 7 (1982).
ORDER
The National Labor Relations Board orders that the
Respondent, Tillford Contractors, Murray, Kentucky,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating employees because they engage in
union or protected concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Donald Battoe immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for losses he
sustained as a result of the discrimination against him,
with interest, as set forth in the remedy section of this
decision.
(b) Notify the Plumbers and Pipefitters Local 184,
in writing, that it will accept Donald Battoe for em-
ployment if he is referred to it in the future.
(c) Remove from its files any reference to the un-
lawful discharge and notify Donald Battoe, in writing,
that this has been done and that the discharge will not
be used against him in any way.
(d) Copies of the attached notice marked ‘‘Appen-
dix’’6 provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized
representative, shall be mailed to Donald Battoe and
the employees employed by the Respondent at the
Murray, Kentucky project.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT terminate employees because they en-
gage in union or protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Donald Battoe immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for
losses he sustained because of the discrimination
against him, with interest.
WE WILL notify the Plumbers and Pipefitters Local
184, in writing, that we will accept Donald Battoe as
an employee if he is referred to us in the future.
WE WILL notify Donald Battoe that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
TILLFORD CONTRACTORS
Rosalind Eddins, Esq., for the General Counsel.
Larry R. Downs, Esq., for Respondent Tillford Contractors.1
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried in Paducah, Kentucky, on August 9, 1994. The
charge in this proceeding was filed by Battoe, an individual,
on March 28, 1994, and a complaint and notice of hearing
issued on May 27, 1994. The complaint alleges that the Re-
spondent terminated Donald Battoe, a union steward, for
union and/or protected concerted activity in violation of Sec-
tion 8(a)(1) and (3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs, I make the following
71TILLFORD CONTRACTORS
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a corporation
with an office and place of business in Murray, Kentucky,
has been engaged in plumbing contracting.
During the 12-month period ending April 30, 1994, Re-
spondent, in conducting its business operations purchased
and received at its facility goods valued in excess of $50,000
directly from points located outside of the State of Kentucky.
At all material times, Respondent has been and employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
At all times material, the United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting In-
dustry, Local Union No. 184 has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a plumbing, heating, and air-conditioning
contractor and on the average employs 40 to 50 pipefitters.
Respondent’s pipefitters are members of Plumbers and Pipe-
fitters Local 184, and Respondent has had a contract with
this local since 1956.
Respondent was engaged in remodeling the mechanical
room at a hospital in Murray, Kentucky, in February 1994.
Donald Battoe was referred from the local along with Kevin
Miller on February 2, 1994. Respondent made Miller the
foreman and the Union designated Battoe as job steward. On
February 15, two other pipefitters had been referred to the
job, David Coleman and Zane Story.
Lewise (Ed) Tilford, Respondent’s president and owner of
the Company since 1957, initially assigned Lynn Simmons to
oversee the project. Simmons did not spend the entire day
onsite and Tilford decided that more supervision was re-
quired. Accordingly, he assigned Ralph Baucom as the onsite
superintendent around February 14. Baucom reviewed blue-
prints with Miller, moved around the job with Miller, and
generally observed. He did not directly address any of the
employees.
The testimony reflects while on the second day on the job,
Battoe approached Baucom, it was Baucom’s second day on
the job, and asked him what he was doing there, Baucom
told Battoe he had been sent to the job by Tilford and Sim-
mons. Miller testified that he witnessed the conversation be-
tween Battoe and Baucom. He further testified that at one
point Battoe told Baucom that the best thing he could do was
to turn around and get the hell away. This statement was
made after Battoe had informed Baucom that he had no busi-
ness on the job, and that Simmons had no business on the
job.
Baucom reported this incident to Tilford who determined
that he could not tolerate backtalk so he made the determina-
tion to fire Battoe. The reason given for the termination was
insubordination, and Simmons gave Battoe his check on Feb-
ruary 16, and removed Battoe from the job.
Prior to the termination, Tilford contacted Union Rep-
resentative Benny Brown and advised him of the decision to
terminate Battoe. Brown wasn’t in, and being out of town
Tilford left a message with the secretary to have Brown re-
turn the call. Brown talked to Tilford on the telephone that
night and at this point Tilford learned that Battoe was the
shop steward on the job.
Tilford allowed Battoe to work an extra day after learning
from Brown that Battoe was the shop steward. The extra day
given to Battoe was Tilford’s way of allowing Brown, who
was out of town, to investigate the situation and voice any
problems if he found such.
The testimony reflects that Battoe when questioning
Baucom was attempting to ascertain whether Baucom was
the area foreman. Miller had questions as to whether Baucom
could be the area foreman over more than one job. He dis-
cussed this with Battoe. Miller questioned Battoe with re-
spect to article 6, section 3(c) of the contract, which deals
with pay rates for supervision.
Benny L. Brown who, is the business manager for Local
184, has been such for 9-1/2 years. Brown corroborated
Tilford, with respect to Tilford’s talking to him and telling
Brown that Battoe had told the superintendent that they
didn’t need him on the job, and they were handling the job
all right. According to Brown, Tilford told him he wasn’t
going to tolerate this and Brown asked him if he could wait
until he got home the next day before any action was taken.
Tilford testified that he told Brown he was firing Battoe for
‘‘Talking back, smarting off to the supervision, and bad
mouthing supervision.’’
Conclusion and Analysis
The record reflects that for almost 40 years, Respondent
and the Union have enjoyed an excellent labor management
relationship devoid of any antiunion animus or any history
of unfair labor practices.
Furthermore, Tilford’s unrefuted testimony is that he has
never fired a shop steward. Moreover, Respondent has never
been the subject of a grievance other than the one arising out
of the instant situation.
It is apparent that there was some uncertainty with respect
to Baucom’s position and authority. The question was not
posed reasonably clear by Battoe. Rather, Battoe became
confrontational.
It may be argued that Tilford overreacted to Battoe’s con-
duct and that such conduct was not serious enough to war-
rant discharge. It is not within my province to substitute my
business judgment for that of Tilford. The record as a whole
does not support a finding that Tilford fired Battoe because
of his union and/or concerted activity or because he was pur-
suing shop steward responsibilities. Tilford was unaware of
Battoe’s shop steward status until after his decision to termi-
nate Battoe. I therefore conclude that Tilford terminated
Battoe for what Tilford considered to be insubordination.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
cert. denied 455 U.S. 989 (1982).
Credibility is not an issue because there is essentially no
factual dispute. Tilford impressed me as a credible, unambig-
uous witness. Furthermore, Miller, a disinterested witness,
testified giving specifics and he was also credible.
I recommend that the complaint be dismissed in its en-
tirety.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent
engaged in conduct violative of Section 8(a)(1) and (3) of the
Act have not been supported by substantial evidence.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
[Recommended Order omitted from publication.]