N.L.R.B. v. McEver Engineering, Inc.
| Decision Date | 10 March 1986 |
| Docket Number | No. 85-4603,85-4603 |
| Citation | 784 F.2d 634 |
| Parties | 121 L.R.R.M. (BNA) 3125, 54 USLW 2535, 104 Lab.Cas. P 11,817, 1986-1987 O.S.H.D. ( 27,532 NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent, v. McEVER ENGINEERING, INC., Respondent, Cross-Petitioner. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Nancy Hunt, Atty., Kenneth Hipp, Supervisor, Washington, D.C., for petitioner, cross-respondent.
Sears & Parker, Franklin R. Sears, Epstein, Becker, Borsody & Green, Bettye S. Kitch, Fort Worth, Tex., for respondent, cross-petitioner.
Application for Enforcement of an Order of the National Labor Relations Board.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
This case is before the court upon application of the National Labor Relations Board (the "Board"), pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e) (the "Act") for enforcement of its unfair labor practice order against McEver Engineering, Inc. ("McEver"). The Board found 1 that McEver had violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1), by firing seven employees who, faced with unusually hazardous working conditions, had concertedly engaged in a work stoppage. The Board also found that one of the seven employees, although alleged by McEver to be a foreman, was not a supervisor within the meaning of section 2(11) of the Act, 29 U.S.C. Sec. 152(11), and was therefore protected by section 7, 29 U.S.C. Sec. 157. The Board ordered McEver to reinstate the seven men and to make each of them whole for any earnings lost as a result of the discharges. We find substantial evidence in the record as a whole to support the Board's findings, and therefore enforce the Board's order.
In October 1982, eleven of McEver's construction crew employees were working at the Texas Lime Company plant near Cleburne, Texas. McEver was serving as the Texas Lime Company's independent contractor. The work consisted of installing new equipment, rebuilding old equipment, and repairing and replacing guard rails, all on the tops and sides of eighty-foot-tall lime tanks. The work was done outside and required the use of electricity for the necessary welding, cutting, and grinding. A large crane was available to lift workers from the ground to their work stations and back. The men had no shelter from the elements. They were not represented by a labor organization.
The weather on October 21, 1982, was rainy, at times heavily so, with intermittent showers, mist, and fog. Early in the day there was thunder and lightning. The project superintendent, Bill Brickell, testified at trial that he expected a "rain-out" to be declared and work to be called off for the day. However, a power outage had caused a shutdown of the Texas Lime plant, and Texas Lime officials pressured Mel Steger, the project manager for McEver, to put the men to work. Thus, despite shouts and complaints about working in the rain from some employees assembled in the tool house awaiting orders from Brickell and Steger, the men were ordered to start work.
Brickell testified that the working conditions at this plant were hazardous even in the best weather. No one has claimed otherwise. The administrative law judge (ALJ) therefore found that on the morning in question the employees faced serious hazards arising from the already dangerous conditions at the lime plant.
Some of the employees testified at trial that they received electrical shocks while working with power tools in the wet weather, and that they were subjected to slips, falls, and near-falls on the lime-encrusted surfaces of the catwalks and the tanks' sloping sides. The four-foot guard rails on top of the tanks had gaps in them, thus failing to offer complete protection. Visibility was poor because of the lime blowing in the wind and sticking to work surfaces, muddying the men and their equipment. The windshield of the crane was useless; the crane operator was forced to lean out of the window of his cab in order to see the hand signals used to direct him in transporting the men, tools, and equipment. Attached to the end of the crane boom was a sliding basket, four feet square, where the men were carried with the equipment to the guard rail area of the tank. Once he reached his destination, a man had to climb out over the top of the basket, then crawl down the other side of the guard rail to the catwalk. The crane operator, leaning out of the cab to see what he was doing, had to stretch from an awkward position to operate the crane controls.
The employee passengers confronted these conditions and the maneuverings in and out of the basket at considerable heights, onto surfaces slickened by wet lime, in the control of an operator handicapped by wind, rain, and blowing lime, at various times through the morning; as the rain fell harder, the men were brought down from their perches, assembled in the tool shed, and then ordered back up again whenever the rain slackened. They had no protective clothing. Other employees, assigned to work at lower elevations or on the ground, reported to supervision that weather conditions made it impossible to work.
During an interval of hard rain while the men were assembled in the tool shed, many of them discussed how hazardous it was on top of the tanks. Preston Ray testified, and the ALJ found, that he had received electrical shocks that morning while welding, and that he told Brickell, "This is a bunch of bull, working in these kinds of conditions." Brickell acknowledged Ray's complaint by saying, Ray also complained to Steger at this time, but Steger merely referred to the fact that a Texas Lime official wanted the work done. The ALJ also found that Thomas Murray, another member of the crew, told Steger and Brickell that it was too dangerous and slick outside, and that nearly everyone complained at one time or another to the supervisors. When again the rain slackened, however, the men were ordered back to work.
Shortly after this return to their positions, the men were once again forced by renewed heavy rainfall to descend and seek shelter in the tool shed where, as it continued to rain, they remained until the noon lunch period.
At noon, the seven employees whose discharges are at issue here drove together to have lunch at a location approximately three-quarters of a mile from the worksite. The ALJ found that during their half-hour lunch break, the seven men discussed the working conditions. Some expressed an unwillingness to return to work in their wet clothes; others feared that a dangerous fall would occur and the person involved would never be able to work again. Finally, the men together decided not to return to work at the conclusion of the lunch break.
When the seven employees failed to return from lunch at 12:30, Brickell sent the company clerk, Eddie Challenger, to investigate. Brickell and Challenger knew where the men had gone for lunch because they had seen their parked vehicles when they themselves had returned from lunch in town. The ALJ found that when Challenger questioned the men, he was told by two of them that they were not going to return to work until the rain stopped, and that when it stopped they would return. When Brickell learned from Challenger only that the men "were not ready to come back to work," he instructed Challenger to fill out termination slips for all of them. The stated reason for the discharges was failure to return to work. Shortly thereafter, Steger confirmed Brickell's decision to fire the men. The ALJ found that despite his knowledge that the men were three-quarters of a mile away, Steger did no investigation of their reasons for failing to return beyond asking some substitute electricians on the tanks if they knew what the problem was.
The seven men returned to the jobsite when the rain stopped at approximately 1:30 p.m. At this time they were told that they had been discharged. The ALJ found that after some heated discussions between Steger and a Texas Lime official and some of the men, the employees packed their tools and left the premises. Steger and Brickell admit that the men were discharged solely because they had failed to return to work at 12:30 p.m.
On November 29, 1982, Thomas Murray, one of the seven terminated employees, filed a charge with the Board's regional office in Fort Worth, Texas, alleging that he, Ector Yzaguire, Kevin Morgan, Ron Emerson, Kenny Hampton, Arthur Wallace, and Preston Ray had been discharged "because they concertedly refused to work in abnormally dangerous working conditions." After investigating the charges, the Board issued a complaint on December 23, 1982, alleging that McEver had discharged, and failed and refused to reinstate, the seven employees because they had "engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Following an evidentiary hearing, the ALJ found that McEver had discharged the seven for taking concerted activity protected by section 7 of the Act. The ALJ therefore charged McEver with having violated section 8(a)(1) of the Act, and ordered it to offer the men reinstatement without prejudice to their seniority or other rights or benefits, and to make them whole for any loss of earnings they had suffered. McEver was also ordered to expunge from its records any reference to the seven discharges, and to notify the men in writing that evidence of their discharges would not be used for future personnel...
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