International Broth. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO v. N.L.R.B.
| Citation | 127 F.3d 1300 |
| Decision Date | 13 November 1997 |
| Docket Number | R,No. 95-3688,P,AFL-CI,95-3688 |
| Parties | 156 L.R.R.M. (BNA) 2881, 134 Lab.Cas. P 10,103, 11 Fla. L. Weekly Fed. C 751 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. H.B. ZACHRY COMPANY, Petitioner-Cross-Respondent, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS,espondent, National Labor Relations Board, Respondent-Cross-Petitioner. Eleventh Circuit |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael T. Manley, Blake & Uhlig, P.A., Kansas City, KS, for IBB.
Dion Kohler, C. Thomas Davis, Lee Stanford Sherrill, Atlanta, GA, for H. B. Zachry Co.
Aileen Armstrong, Deputy Assoc. General Counsel, Nancy B. Hunt, Margaret G. Neigus, Frederick C. Havard, Jill A. Griffin, NLRB, Washington, DC, for NLRB.
Petition for Review and Cross Petition for Review of the National Labor Relations Board.
Before CARNES, Circuit Judge, and HENDERSON and GIBSON *, Senior Circuit Judges.
This case appears before us after the National Labor Relations Board (the "Board") upheld an Administrative Law Judge's ("ALJ") determination that the H.B. Zachry Company ("Zachry") committed numerous violations 1 of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 151-169 (1994). See H.B. Zachry Co., 319 N.L.R.B. 967, 1995 WL 785175 (1995). The Board also upheld the ALJ's finding that Zachry's termination of employee Mathew Jonjock did not violate sections 8(a)(1) and (3) of the Act, as the General Counsel for the Board and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forger & Helpers, AFL-CIO (the "Union") had alleged. On appeal, the Union petitions for review claiming that the Board erred in concluding Zachry's treatment of Jonjock did not violate the Act. Zachry cross appeals challenging several of the Board's determinations. The Board requests that we enforce its Order in whole. After considering the Board's Order and the arguments raised by each of the parties, we enforce the Order in part and deny enforcement in part.
This case arises out of the Union's attempt to organize employees working for Zachry at a construction site in Jacksonville, Florida. Zachry, as general contractor, began constructing a coal-fired power plant at the site in early fall of 1991.
On February 27, 1992, 2 a group of five employees, including Mathew Jonjock, went to Zachry's construction site where they met with Field Personnel Manager Kevin Evans. The group gave Evans a letter identifying themselves as a union organizing committee and announced their intent to organize workers at the construction site. Evans told the group he could not stop them from organizing but that they were to organize on their own time and were not to pass out union literature while working.
Jonjock worked as a boilermaker fitter/rigger from February 3 until Zachry discharged him on March 3. Jonjock apparently engaged in no significant union activity until the organizing committee met with Evans. After the meeting with Evans, Jonjock and other committee members began openly displaying their union affiliation and organizing committee membership status. On the morning of Friday, February 28, the organizing committee met with a Zachry project manager to request a place to wash their hands, a clean place to eat lunch, and a wage increase. The manager denied the requests.
Boilermaker/Rigger General Foreman Earl Roark testified that on February 28 he and Supervisor Earl Frederick assigned Jonjock to install four steel I-beams to an air-driven structural lifting device which would be used to lift a boiler into place. According to Roark, Jonjock was the fitter in a crew of three workers and was responsible for properly aligning the I-beams before they were welded. Nathan Hand was Jonjock's helper, and Donald Tuey was the crew's welder. Jonjock claims that Roark and Frederick had not assigned him these duties, but that Frederick had merely asked him to stand watch over a hole for thirty minutes while Roark's crew went to get tools and equipment. The ALJ credited Roark's testimony and determined that Jonjock had primary responsibility for ensuring the I-beams were properly aligned.
Jonjock apparently aligned the first I-beam improperly, and Frederick instructed Jonjock to reinstall the beam. After Jonjock and the other crewmembers reinstalled the first I-beam, and installed the second I-beam correctly, Jonjock improperly aligned the third I-beam. Roark and Frederick discovered that the third I-beam had been fitted improperly, but they did not ask the crew to take corrective action that day because reinstalling the I-beam would have taken several hours.
Boilermaker Superintendent Roger Reed testified that, at about 4:00 p.m. on February 28, Jonjock approached him and asked him what types of employee misconduct would result in termination. After Reed gave some examples, Jonjock asked whether a person would be terminated if they refused to go up on the steel beams. The two then briefly discussed Zachry's policy regarding working aloft the iron structure. Reed testified that Jonjock then stated that Zachry's safety policy "sucked" and that "everybody at the main office was [sic] a bunch of unorganized dumb asses." ALJ Hr'g Tr. at 131. Jonjock denies that this conversation occurred.
Around 5:30 p.m. on February 28, Frederick sent Hand onto the boiler structure to retrieve a piece of equipment. When Hand returned, Frederick told him he was going to issue a three-day suspension for going onto the structure without a safety belt. Jonjock overheard the conversation and protested to Frederick. Jonjock testified that Frederick instructed Hand and Jonjock to accompany him to the superintendent's trailer and told Jonjock, "[w]e're going to go get your money." ALJ Hr'g Tr. at 196. At that point, Reed and General Foreman Ronnie Stewart approached. While Frederick told Reed of Hand's suspension, Jonjock continued to speak in Hand's defense. Reed told Jonjock to mind his own business and to wait for Hand in the parking lot. Reed and Stewart testified that as they were leaving the construction site that evening, they met Jonjock in the parking lot. Jonjock asked Reed if Reed would have his money on Monday. Reed said no and told Jonjock he had not been fired. Reed testified that Jonjock then responded, "You're too chicken shit to fire me." ALJ Hr'g Tr. at 141. Jonjock denied that this exchange occurred.
Reed testified that when he got home, he spoke with Frederick, who lived across the street, about the day's events. Reed learned that Jonjock incorrectly installed two I-beams that day. On Saturday, February 29, Reed and another superintendent met at the jobsite to inspect the I-beams. Upon seeing the I-beam that Jonjock installed improperly, Reed concluded that--based on Jonjock's poor work quality, bizarre questions about possible reasons for termination, and challenge to Reed to fire him--Jonjock acted intentionally in doing his work incorrectly. Reed called Evans to review the facts, and Evans telephoned his superior in San Antonio, Texas. The group ultimately decided that either Jonjock had intentionally committed these errors or that he was so lacking in skills he could not qualify as a boilermaker fitter/rigger. Therefore, they decided to terminate him.
When Jonjock reported for work on Tuesday, March 3, Frederick informed him that he had been terminated. Jonjock testified that as he approached Frederick, Frederick stated, ALJ Hr'g Tr. at 199. Frederick then instructed Jonjock to turn in his safety equipment and gave Jonjock his final paycheck and a termination slip. Neither the slip nor Frederick explained the reason for Jonjock's discharge.
Scott French began working for Zachry at the Jacksonville project in January. He did not engage in any union activities until he signed an authorization card on February 8. On March 2, French began displaying his union affiliation through stickers he placed on his lunchbox and hard hat, and in early April, French became a volunteer union organizer.
On April 15, French asked his Supervisor, Yarby Denham, if employees were going to start getting overtime. French testified that Denham told French and employee Russell Myers that they were on supervision's "hit list," ALJ Hr'g Tr. at 359, but that if they would stop displaying their union affiliation, Denham would try to help them get overtime work. Denham denied the occurrence of this conversation.
French had approximately nine years of welding experience, and had passed both thin-wall and heavy-wall boiler tube welding tests. Foremen Anthony Mollica and Tony Boatman were in charge of a five-person crew assigned to do the first boiler tube welding on the construction project. French was a member of this crew. On April 17, the crew started welding in the afternoon and continued working until 7:30 or 8:30 p.m. According to French, after the crew finished welding, Mollica and Boatman inspected everyone's welds and stated that they were fine. Mollica testified that neither he nor Boatman inspected any of the welds that evening nor did they approve any welds.
Mollica testified that, on the morning of April 18, he discovered that five of French's welds were unacceptable, and on Monday, April 20, when the entire crew was back on the site, he met with Denham and told him about the problem welds. Denham inspected the welds with Mollica, and the two decided they had to be rewelded. Mollica and Denham spoke with French and instructed him to grind down the welds and to recap them. Denham stated that, if French did not get the welds right, Denham would demote him to structural welding at a dollar less per hour. Denham was not satisfied with the new welds and again told French to reweld,...
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