Allied Erecting Co.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 277 (N.L.R.B. 1984)

ALLIED ERECTING CO.
Allied Erecting and Dismntling Company, Inc. and
Kenneth W. Collins, Jr. Cases 8-CA-14045 and
8-CA-14234
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 8 January 1982 Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings, findings, ' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(aX1) of the Act by laying off/terminating
Kenneth W. Collins Jr., because he engaged in pro-
tected concerted activities.2 We disagree with that
finding.
The facts, as more fully set forth by the judge,
are as follows. In May 1980, a day or two after re-
ceiving a union membership card from the Re-
spondent,s Collins approached the Respondent's
president, Ramun, and asked for a raise. In re-
sponse, Ramun merely laughed and walked away.
In that conversation, Collins made no reference to
a union contract, and there is no indication that he
asked for a raise for any employee other than him-
self. Around the same time, Collins and his fellow
employees at the Republic Steel jobsite began talk-
ing among themselves about the fact that, although
they were now union members, they still were re-
ceiving the same hourly wage. According to Col-
lins, they had more than one discussion on the sub-
ject, but there was no "definite meeting."
About a week later, 20 May, Collins went alone
to the engineering trailer to visit Republic Steel's
project engineer, Serback. Collins testified that he
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unlesa the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2No exceptions were filed to the judge's failure to find that Collins'
termination also violated Sec. 8(aX3) of the Act.
3 The judge found, and we agree, that the Respondent violated Sec.
8(aXI) and (2) of the Act by paying employees' initiation fees and dues to
the Union, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No. 377, without the
employees' having expressed any desire to be represented by the Union
and having authorized such payments on their behalf.
270 NLRB No. 48
was not sure whether he told any of the other em-
ployees that he was going to see Serback. Collins
asked Serback whether the contractors and em-
ployees on the project were covered by a contract.
Serback responded that they were and showed
Collins a copy of a contract.' Collins then asked
Serback if he knew that the Respondent's employ-
ees were not being paid union scale. Serback re-
sponded that he did not know that, but he would
check into it. Later that day, Collins returned to
the jobsite and spoke to his supervisor, Anzevino.
According to Collins, whom the judge credited,
Anzevino stated that Ramun was angry because
Collins had spoken to Serback about pay and that
Collins should get off the property. Collins then
asked if he was fired, to which Anzevino respond-
ed no, he was laid off.
The judge found that, although Collins' early
May request for a raise was made solely on his
own behalf and therefore was not concerted in
nature, the subsequent discussions among employ-
ees regarding the possibility of being covered by a
union contract were clearly in the nature of pro-
tected concerted activities. The judge further
found that Collins' effort to obtain information
from Serback about such a contract was "a mere
extension of that activity," and "was itself in fur-
therance of an interest common to all the truck-
drivers," and therefore was protected by the Act.
The judge further found that the Respondent
had knowledge that Collins had spoken to Serback.
The judge relied on Anzevino's testimony that Ser-
back had called to inform him that Collins had
come in to discuss "wages and so forth." The
judge also relied on Anzevino's failure to deny
Collins' credited testimony that Anzevino told him
that Ramun was angry that he had gone to Ser-
back. Based on that credited testimony, the judge
found that the Respondent was upset that Collins
had contacted another employer to inquire about
the wage rates the Respondent was supposed to be
paying its employees, and he concluded that the
Respondent "laid off/terminated" Collins because
of such activities in violation of Section 8(a)(l).5
Recently, in Meyers Industries,8 we held: "In
general, to find an employee's activity to be 'con-
certed,' we shall require that it be engaged in with
or on the authority of other employees, and not
solely by or on behalf of the employee himself."
4 No project agreement or any other contract, such as a collective-bar-
gaining agreement between the Respondent and the Union, was intro-
duced into evidence.
8 The judge rejected as pretextual the Respondent's defense that Col-
lins was discharged for having violated a work rule prohibiting the Re-
spondent's employees from going to the Republic Steel engineering trail-
er. The judge found that no such rule existed.
6 268 NLRB 493, 497 (1984).
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board also emphasized in Meyers Industries
that cases of this kind will turn on their particular
facts.
Applying the foregoing standard to the instant
case, we find that the record does not support a
finding that the activity for which Collins was dis-
charged-visiting Serback-was concerted. It is
undisputed that Collins went by himself to Ser-
back's trailer, and there is no evidence that the em-
ployees in any way supported Collins' visit to Ser-
back. In these circumstances, we cannot find that
Collins acted "with or on the authority of other
employees, and not solely by or on behalf of" him-
self. Accordingly, we find that Collins did not
engage in concerted activity under Meyers Indus-
tries. We therefore conclude that the Respondent
did not lay off or terminate Collins in violation of
Section 8(aX1).
ORDER
The National Labor Relations Board orders that
the Respondent, Allied Erecting and Dismantling
Company, Inc., Youngstown, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Paying employees' initiation fees and dues di-
rectly to International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 377, when such employees
have not expressed any desire or intent to be repre-
sented by said Union and without employees' au-
thorizing such payments on their behalf.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility located in Youngstown,
Ohio, and at any jobsites which it may have in and
around Youngstown and Warren, Ohio, including
its Republic Steel jobsite, if such still exists, copies
of the attached notice marked "Appendix." 7
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
' 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 Na-
tional Labor Relations Board" shll red "Posted Pursuant to · Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT pay employees' initiation fees and
dues directly to International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 377, when employees
have not expressed any desire or intent to be repre-
sented by said Union and without employees' au-
thorizing such payment on their behalf.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ALLIED ERECTING AND DISMAN-
TLING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. On
July 22, 1980,1 a charge was filed in Case 8-CA-14045
by Kenneth W. Collins Jr. against Allied Erecting and
Dismantling Company, Inc., herein called Respondent.
That charge was amended on September 4, and a com-
plaint and notice of hearing issued in that case on Sep-
tember 5, 1980. A charge was filed in Case 8-CA-14234
on September 22. On November 7, the Regional Direc-
tor for Region 8 issued an order consolidating cases, con-
solidated complaint and notice of consolidated hearing. 2
' Unless otherwise indicated, all dates herein refer to 1980.
' The order consolidating cases dated November 7 consolidated the
above-ptioned cases as well as Case 8-CB-4294 filed by the Charging
Continued
278
ALLIED ERECTING CO.
The consolidated complaints alleged violations by Re-
spondent of Section 8(aX)(1), (2), and (3) and Section 2(6)
and (7) of the National Labor Relations Act, herein
called the Act. In its answer and amended answer, Re-
spondent denies the commission of any unfair labor prac-
tices.
A trial was held before me in Youngstown, Ohio, on
May 11 and 12, 1981, at which the General Counsel and
Respondent were represented by counsel and all parties
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Thereafter, the General Counsel and Respondent filed
briefs which have been duly considered.
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation, with offices and a
facility located in Youngstown, Ohio, is engaged in pro-
viding commercial demolition services. In the course and
conduct of its business operations, Respondent annually
provides services valued in excess of $50,000 to other en-
terprises located within the State of Ohio, including Re-
public Steel Corporation, which are themselves engaged
directly in interstate commerce. Respondent admits it 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.
II. LABOR ORGANIZATION
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 377, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNPAIR LABOR PRACTICES
A. Allegations and Issues
The complaints allege that Respondent violated Sec-
tion 8(aXI) and (2) of the Act by paying employees' initi-
ation fees and dues to International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 377, herein called Teamsters
Local 377 or the Union, notwithstanding the fact that
employees had not authorized such payments. The com-
plaints further allege that Respondent violated Section
8(aX1) and (3) of the Act by laying off and/or terminat-
ing Kenneth W. Collins on May 20, 1980, because Col-
lins had, or Respondent believed he had, engaged in
union and/or protected concerted activity.
In its answers, Respondent denies having engaged in
any act which might constitute any unfair labor pracitce.
Party herein against International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No. 377. By Order
dated December 30, Cae 8-CB-4294 was severed from the remaining
came because Respondent Union agreed to enter into a settlement agree-
ment.
B. Payment of Initiation Fees and Dues
During the time at issue in this case, Respondent had
several contracts with Republic Steel Corporation to
perform heavy industrial dismantling work at its plant in
Warren, Ohio. Part of its contract with Republic Steel
Corporation called for Respondent to dismantle a boiler-
house. Near the boilerhouse, a blast furnace was being
rebuilt by employees of another employer who were rep-
resented by Teamsters Local 377.
In May 1980, some of Respondent's employees report-
ed to Corporate President John Ramun that they were
being harassed by members of Teamsters Local 377
working at the blast furnace because Respondent's em-
ployees were nonunion. More than one of Respondent's
employees reported having been threatened with physi-
cal violence. As a result, Ramun telephoned representa-
tives of the Union. Ramun was told that his employees
would have "to have a card to get in and off that job."
Ramun testified that as a result of the telephone conver-
sation, he held a meeting with all employees and asked
them what, if anything, they wanted to do about joining
the Union." Ramun admits that during the meeting with
employees, employees expressed to him "they would
rather be unemployed than come up with the initiation
fees and dues." There is no evidence that any employee
expressed a desire to be represented by the Union.
Following the meeting with employees, in order to
avoid further confrontation, Ramun informed his office
staff to pay the initiation fees and dues to Teamsters
Local 377 on behalf of employees. Consequently, Re-
spondent paid initiation fees and dues to the Union on
behalf of all six employees who were then working at
the Republic Steel facility. Respondent did not deduct
the initiation fees or dues from employees' pay.
C. The Layoff and/or Termination of Collins
Collins, hired by Respondent on November 20, 1979,
as a truckdriver, was one of the individuals on whose
behalf Respondent paid initiation fees and dues to Team-
sters Local 377 in May 1980. Collins, whom I credit, tes-
tified that a day or two after receiving the membership
card from the Union, he approached Ramun individually
and asked Ramun for a raise. Ramun simply laughed and
walked away. There is no indication that in the conver-
sation with Ramun, Collins referred to or made any in-
quiry about a union contract. Further, there is no indica-
tion that Collins asked for the raise for anyone other
than himself.
Following the conversation with Ramun, Collins and
the other truckdrivers began to discuss amongst them-
selves the fact that they were now members of Team-
sters Local 377 but were still receiving the same hourly
wage rate they had previously been receiving. I credit
Collins that several conversations occurred regarding
that subject between the time of his conversation with
Ramun and May 20.
a The General Counsel called only one employee witness to testify that
he did not attend this meeting, and I find such testimony insufficient to
establish that the meeting did not occur. Consequently, I credit Ramun's
account of the meeting with employees.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 20, Collins and other employees reported to
work at the usual time. Supervisor Ron Anzevino ap-
proached Collins and employees Paul Ryhal and Antho-
ny Daviduck in the parking lot and informed them that
he did not need all of the drivers that day. Collins volun-
teered to take the day off, and Anzevino agreed. Collins
then left the work area and went to a construction trailer
where Republic Steel project engineer Dick Serback
maintained an office. Serback was the individual who on
behalf of Republic Steel oversaw the operations of sever-
al contractors engaged in extensive demolition and re-
construction work at its Warren facility. Collins asked
Serback if the contractors and employees on the project
were covered by a contract with any union. Serback said
they were and showed Collins a copy of the contract.
Collins then asked Serback if he knew that Respondent's
employees were not paid union scale. Serback said he
was not aware of that fact but would check into it. Col-
lins then left the construction trailer and the jobsite.
Later in the day, Collins returned to the jobsite and
spoke to Anzevino. Collins, whom I credit, testified An-
zevino told Collins that Ramun was mad because Collins
had spoken to Serback about pay and that Collins was to
get off the property. Collins asked Anzevino if he was
fired. Anzevino replied no, that Collins was laid off. Col-
lins then left.
Between May 20 and 27, Collins heard nothing from
Respondent about being recalled. Consequently, on
either May 27 or 29, Collins contacted Richard Duss-
man, a union steward for Teamsters Local 377 at the Re-
public Steel construction jobsite. Collins filled out griev-
ance forms regarding the wage rate paid to him and his
layoff/termination. These grievances were referred to
union business agent Sammarone who spoke to Ramun.
As a result of Sammarone's conversation with Ramun,
Ramun agreed to recall/rehire Collins, and Ramun told
Sammarone to tell Collins "he was welcome to come
back to work." It appears that Sammarone spoke to
Dussman because it was Dussman who telephoned Col-
lins and told Collins to report back to work, which Col-
lins did on the morning of June 10.
When Collins reported to work on June 10 at the reg-
ular starting time, Supervisor Anzevino told Collins that
he was to drive the truck known as the "autocar
tandum."' Collins told Anzevino that that truck was
unsafe and he would not drive it. I credit Collins that
Anzevino then said that Collins was to drive the truck
and no other truck by order of John Ramun himself.
Collins then repeated that that truck was unsafe and that
Collins would not drive an unsafe vehicle. Collins then
left the premises. 5 A few days later, Anzevino tele-
This was the only such truck in use by Respondent at the time. A
smaller truck, consisting of a cab and dump bed on a single frame, it was
also the oldest truck in Respondent's fleet. All the other trucks then
being used by Respondent were larger, newer pieces of equipment con-
sisting of a separate cab and semitrailer. Collins had driven this latter
type of truck prior to his layoff/termination.
B I discredit Anzevino who claimed that, when Collins refused to drive
the autocar tandum, Anzevino drove it to test the brakes and found them
to be in good working order. I credit Collins' denial that Anzevino did
so. I found Anzevino to be an untrustworthy and evasive witness. As is
detailed more fully below, his testimony differed in several important re-
spects from a pretrial affidavit which he had given to a Board agent. Fur-
phoned Collins and asked Collins to return to work. Col-
lins asked Anzevino what truck he would be assigned to
drive, and Anzevino replied that he would again be as-
signed the "autocar tandum." Collins again stated that he
would not drive that truck because it was unsafe. Fol-
lowing this conversation, Collins had no further contact
with Respondent regarding his job. Similarly, Respond-
ent has never offered Collins a position driving the truck
which he operated prior to the layoff/termination on
May 20.
Collins testified that he refused the assignment to drive
the autocar tandum truck because he believed that truck
to be unsafe. In its posttrial brief, Respondent apparently
concedes that Collins' belief was held in good faith, but
argues that testimony has shown the truck not to have
been unsafe in fact. Collins testified that in March 1980
he drove this truck approximately 20 to 25 miles from a
garage to the Republic Steel jobsite. Collins testified that
the windshield wipers, brake lights, and turn signals did
not function and that the brakes were bad. At various
times during his employment, other truckdrivers have
commented to Collins that they too had observed the
brakes on this truck to function poorly. On one occasion
in April 1980 while employee Courtney was driving the
truck, Collins observed Courtney tear the mirror off a
crane with the truck while attempting to stop. Collins at-
tributed this accident to the fact that the brakes were
bad. At the trial herein, Courtney testified that he was
not able to state that the accident was solely attributable
to the brakes, but that it was at least partly attributable
to the brake system, and partly to human error. Employ-
ee Daviduck testified that, in April 1980, Courtney in-
formed him that the brakes on the autocar tandum truck
were not operating properly. Daviduck made some ad-
justments, but could not completely repair the brakes.
In contrast to this testimony of witnesses called by the
General Counsel, Respondent called four witnesses who
testified in essence that the brakes on the autocar tandum
truck were at least safe. These witnesses included Super-
visor Anzevino, mechanic William Gulfo, and employees
Paul Ryhal and George Lloyd. From the testimony of
Ryhal and Lloyd, it is impossible to determine how often
and for how long they had occasion to operate the truck
in question, and consequently I give no particular weight
to their testimony regarding the condition of the truck. I
also give little weight to Anzevino's testimony regarding
its condition for he admitted on cross-examination that
he was not personally familiar with its condition on a
day-to-day basis and would not even be made aware of
its condition by drivers assigned to that vehicle. Mechan-
ic Gulfo testified that in his opinion the condition of the
brakes in April 1980 was "good." On cross-examination,
however, Gulfo admitted that he had not repaired any
part of the brake system on that truck since 1979.
On balance, I find the testimony of employee Court-
ney to be most accurate regarding the condition of the
autocar tandum truck, including its braking system.
Courtney was the least senior truckdriver and, as such,
ther, Anzevino struck me as a person who embellished his testimony at
will.
280
ALLIED ERECTING CO.
had been assigned to drive the autocar tandum truck on
a daily basis before Collins was given that assignment on
June 10. Further, when Collins refused to accept the as-
signment to drive that truck on June 10, Courtney was
again assigned to drive it. Courtney confirmed Collins'
testimony that the truck had no windshield wipers. Re-
garding the brake system, Courtney testified:
It is an older unit. The brakes weren't the best in
the world ....
Later he testified:
Well, they weren't the best in the world. They
needed service, but, you know, its like anything
else, you know what you are operating, and you
kind of go according to the equipment.
Courtney testified to one incident in which he almost
had an accident while driving the truck on a public
street. Courtney further testified that, when it rained, he
had to stick his head out the window in order to see. Fi-
nally, as noted, Courtney testified that the condition of
the brake system contributed at least in part to the acci-
dent in which he broke off a mirror from a crane. On
cross-examination, Courtney freely admitted that he did
not believe the condition of the brakes to be "unsafe"
and that if he had he would not have driven the truck.
As Courtney described the truck in question, it was the
oldest truck in Respondent's fleet, used only for the
roughest jobs involving the greatest wear and tear to the
truck. In Courtney's opinion, the truck was not "unsafe,"
but "it had its problems."
IV. ANALYSIS AND CONCLUSIONS
Respondent admits that it paid initiation fees and dues
directly to Teamsters Local 377 on behalf of its truck-
drivers. At the time it did so, no employee had expressed
any desire to be represented by Local 377, and none had
authorized these payments on their behalf. Consequently,
such payments constitute clear violations of Section
8(a)(X) and (2) of the Act. Dura-Vent Corp., 235 NLRB
1300 (1978); Stockton Door Co., 218 NLRB 1053 (1975).
After Collins and other employees received member-
ship cards in Local 377, they began to discuss amongst
themselves the fact that they were receiving a wage rate
lower than other employees on the jobsite who were
being paid according to the union contract. Prior to
these discussions between employees, however, Collins
first went on his own to Respondent's president Ramun
to ask for a raise. While evidence regarding this request
is submitted by the General Counsel in support of its
case, I do not rely on it in reaching my ultimate decision
herein. The evidence does show that Collins had an in-
terest in improving his working conditions, but I find
nothing to evidence that at that point in time Collins was
acting in any concerted manner with or on behalf of
other employees. I conclude that in making that early re-
quest for a raise, Collins was acting solely on his own
behalf and that the activity was not of a concerted
nature protected by the Act. National Wax Co., 251
NLRB 1065 (1980).
After Collins was denied his original request for a
raise, the later conversations between him and other em-
ployees regarding the possibility that they were supposed
to be covered by a union contract in the nature of a
project agreement were clearly of a concerted nature in-
tended to be protected by the Act. See National Wax
Co., supra; Adams Delivery Service, 237 NLRB 1411,
1420-21 (1979); and Key City Mechanical Contractors, 227
NLRB 1884, 1887-88 (1977). Collins' effort to obtain in-
formation from Serback about such an agreement was a
mere extension of that concerted activity, was itself in
furtherance of an interest common to all the truckdriv-
ers, and was therefore protected by the Act. Anzevino
admitted that he knew Collins had gone and spoken to
Serback. According to Anzevino, Serback telephoned to
inform him that Collins had come to talk to Serback to
discuss "wages and so forth." Anzevino does not deny
Collins' testimony which I have credited that immediate-
ly on encountering Collins after his discussion with Ser-
back, Anzevino told Collins that Ramun was angry at
Collins for having done so and was laid off. On cross-
examination, Anzevino admitted that in a pretrial affida-
vit given to Board agent he stated, "I might have told
him [Collins] that John Ramun was mad because he had
talked with Serback ... ."
Respondent's defense is founded in part on the conten-
tion that the Republic Steel project engineer trailer was
off limits to Respondent's employees and, accordingly, to
quote from its brief, "It was insubordination for Collins
to go to Republic Steel with his complaints."d
Anzevino claimed that there was a well-known work
rule prohibiting Respondent's employees, except supervi-
sors, from going to the Republic Steel project engineer
trailer. After careful examination of Anzevino's testimo-
ny on this point and on other points, and recalling his
general demeanor, I have concluded that Anzevino's as-
sertion represents a fabrication on his part in an attempt
to establish that Collins committed an infraction of work
rules and thereby mask Respondent's otherwise clear ret-
ribution for Collins engaging in protected concerted ac-
tivities. At one point in his testimony, Anzevino claimed
that he had not told Collins on May 20 that Collins was
laid off. He then testified, "[O]n May 20th I had no
reason to lay Kenny off." A pretrial affidavit given by
Anzevino to an agent of the Board, however, states in
part: "I told Mr. Collins he was laid off .... I did tell
Collins that he was laid off; however, we had been plan-
ning to lay off people because the work had slowed
up .... "
Although in giving the affidavit, Anzevino could not
recall exactly when he told Collins he was laid off, it is
clear from the context of the statement that Anzevino
was referring to the conversation with Collins after Col-
lins had spoken to Serback on May 20. Anzevino admit-
ted that he did not know whether the alleged rule pro-
hibiting employees from going to the Republic Steel
6 I find it unnecessary to decide whether such a rule could be estab-
lished or enforced in such a manner as to prevent employees from engag-
ing in protected concerted activity by asserting claims regarding their
working conditions. For the reasons expressed herein, I have found that
in fact no such rule existed.
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project engineer trailer had ever been documented and
circulated to employees in written form. Further, Anze-
vino did not know if the rule was promulgated by Re-
public Steel or by Respondent, but claimed that he was
notified by some representative of Republic Steel, possi-
bly Serback, that the trailer was off limits to all individ-
uals except supervisors. I find it significant that Respond-
ent offered no confirmation or corroboration of Anze-
vino's testimony by any representative of Republic Steel.
If such a rule existed, corroboration by Republic Steel
should have been simple. If a violation of this rule was
the real reason for Respondent's layoff/termination of
Collins one would naturally expect corroboration on
such an important aspect of the case. Even Anzevino did
not claim that Serback complained to him about the fact
that Collins had come to the Republic Steel project engi-
neer trailer. Rather, Anzevino testified only that Serback
reported to him that Collins was inquiring about "wages
and so forth." Collins' own testimony which I credit dis-
closes that he had gone to that trailer on several occa-
sions prior to May 20 without anything being said to him
either by Respondent or Republic Steel. Based on all
these facts, I conclude that Anzevino's assertion regard-
ing this alleged rule is simply convenient fabrication on
his part, and I find that no such rule existed. Rather, as
revealed by Anzevino's statement to Collins at the time
of his layoff/termination, Respondent was upset about
the fact that Collins had inquired of Republic Steel about
the wage rates which Respondent was supposed to be
paying its employees. Consequently, I conclude that Re-
spondent laid off/terminated Collins on May 20 in viola-
tion of Section 8(aX1) of the Act because Collins en-
gaged in such protected concerted activity.
The General Counsel and Respondent argue at length
about the circumstances pursuant to which Collins was
offered reemployment on June 10 and, more specifically,
whether Collins' refusal to drive the autocar tandum
truck itself constituted protected concerted activity. I
find it unnecessary to reach that issue. The appropriate
remedy for Respondent's unlawful termination of Collins
on May 20 requires reinstatement to the position former-
ly held by him. Respondent does not deny, and the
record amply demonstrates, that on June 10 Respondent
was utilizing the type of vehicle which Collins had
driven prior to his termination to do the same type of
hauling work which Collins had done prior to that time.
This work, however, was not offered to Collins on June
10. I credit Collins that the reason given to him on June
10 for not reinstating him to that type of work was that
Ramun had specifically ordered that Collins be assigned
only to drive the autocar tandum truck. I am convinced
that, after Collins filed grievances with the Union fol-
lowing his termination, Respondent agreed to reinstate
Collins in order to keep peace with the Union, as it had
done in paying the union initiation fees and dues on
behalf of its employees. However, Ramun also ordered
that on his reinstatement Collins be assigned to the least
desirable work available. I conclude that he did so as
further retribution for Collins having spoken to Serback.
Respondent offered no other logical reason for this as-
signment.
When asked by Respondent's own counsel about the
reason for assigning Collins to drive the autocar tandum
truck, the only explanation offered by Anzevino was as
follows:
Really, the only reason that I had for him driving
that truck was because that was the truck at that
particular time. At that particular time, we weren't
using all the trucks, and at that particular time I
needed that truck.
Anzevino's explanation is circuitous and illogical. He
would have me believe that the assignment was mere
happenstance. Although he does not bother to deny it
himself, he would have me ignore Collins' testimony that
Anzevino told Collins on June 10 the assignment was at
the specific instruction of Ramun. Further, the record es-
tablishes that employee Courtney, because he was the
junior employee, had been used on a regular basis prior
to May 20 to drive the autocar tandum truck. Courtney
was still employed on June 10. Respondent offers no ex-
planation why Collins and not Courtney was assigned to
drive that vehicle that day. I also find it significant that,
after Collins refused that assignment on June 10, it was
Courtney who was again assigned to drive that vehicle.
Whether the autocar tandum truck was in fact safe to
operate on June 10 is unnecessary to decide for it is clear
that driving that truck was considered the least desirable
job assignment, and there was at least a reasonable basis
for questioning its safety, particularly by an employee
who was not regularly assigned to drive that vehicle.
Consequently, I find that even though Collins' former
position was available on June 10, Respondent did not
offer reinstatement to Collins to his former or a substan-
tially equivalent position. Rather, Respondent attempted
to continue to harass Collins for having engaged in pro-
tected concerted activity, and Collins was justified in de-
clining this work.
CONCLUSIONS OF LAW
1. The Respondent, Allied Erecting and Dismantling
Company, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 377 is a labor organization within the meaning of
Section 2(5) of the Act.
3. By paying employees' initiation fees and dues direct-
ly to Teamsters Local 377 notwithstanding that employ-
ees had not expressed any desire or intent to be repre-
sented by said Union, nor authorized such payment on
their behalf, Respondent rendered unlawful aid and as-
sistance to said labor organization, in violation of Section
8(aX1) and (2) of the Act.
4. By laying off/terminating Kenneth W. Collins Jr.
because he engaged in protected concerted activity, Re-
spondent has restrained and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the
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ALLIED ERECTING CO.
Act, and thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.7
5. 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
? In the particular circumstances of this case, I decline to find that Col-
lins' termination violated Sec. 8(aX3) of the Act, for to do so might sug-
gest that Collins was engaged in activity on behalf of Teamsters Local
377, which clearly is not the case. Further, it is unnecessary to make such
a finding in order to provide an adequate remedy herein.
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(aX1) and
(2) 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.]
283