Allied Riggers

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1194 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Riggers, Inc. and Robert Lee Murray. Case
9-CA-18903
27 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 August 1983 Administrative Law Judge
William F. Jacobs 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' and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Allied Riggers, Inc., Columbus, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the
Act."
2. Substitute the following for paragraph 2(a).
(a) Offer Robert Lee Murray immediate and full
reinstatement 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 privileges previously enjoyed and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of this decision."
3. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful 'refusal to recall' and notify the employee
in writing that this has been done and that it will
not be used against him in any way."
l No exceptions were filed to the judge's finding that the Respondent
violated Sec. 8(aXI) by refusing to recall Murray.
2In compliance proceedings, the Respondent may present evidence that
when the project for which Robert Lee Murray was hired ended, the Re-
spondent did not retain, transfer, or rehire project employees for other or
subsequent projects. Accordingly, compliance proceedings herein will ac-
curately determine the Respondent's backpay and reinstatement obliga-
tions to the discriminatee.
4. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT fail or refuse to recall or other-
wise deny employment to employees because they
engage in, or have engaged in, protected concerted
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of rights guaranteed to you by Section 7 of the
Act.
WE WILL offer to Robert Lee Murray immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity or other rights and privileges, and WE WILL
make him whole for any loss of earnings he may
have suffered, less any interim earnings, plus inter-
est.
WE WILL notify Robert Lee Murray that we
have removed from our files any reference to our
refusal to recall him and that the same will not be
used against him in any way.
ALLIED RIGGERS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was tried before me on April II and 12, 1983, at
Columbus, Ohio. The charge was filed on November 3,
1982,1 by Robert Lee Murray, an Individual. The com-
plaint issued December 16 and alleges that Allied Rig-
gers, Inc., herein called the Respondent, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by failing and refusing to recall Murray because he en-
gaged in protected concerted activities when he and
other employees of the Respondent complained concern-
ing other employees doing the work assigned to their
crafts. In its answer the Respondent denies the commis-
sion of any unfair labor practices.
All parties were represented at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument. Briefs were duly filed. On the
entire record, my observation of the demeanor of the
I All dates are in 1982 unless otherwise indicated.
268 NLRB No. 187
1194
ALLIED RIGGERS
witnesses, and after giving due consideration to the
briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged in
the business of machinery moving and erection at its Co-
lumbus, Ohio facility. During the past 12 months, a rep-
resentative period, the Respondent, in the course and
conduct of its operations, performed services valued in
excess of $50,000 for other nonretail enterprises within
the State of Ohio,2 each of which, in turn, annually pur-
chased and received goods and services valued in excess
of $50,000 directly from outside the State of Ohio or
which were otherwise engaged directly in interstate
commerce.3 The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. 4
II. THE LABOR ORGANIZATION INVOLVED
Millwrights and Piledrivers Local Union No. 1241,
United Brotherhood of Carpenters and Joiners of Amer-
ica, herein called the Union, is now, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.5
III. THE ALLEGED UNFAIR LABOR PRACTICES
Allied Riggers, Inc., is an employer member of Central
Ohio Division, Ohio Building Chapter Associated Gener-
al Contractors of America, Inc., and, as such, is signato-
ry to a collective-bargaining agreement with Capital Dis-
trict Council, United Brotherhood of Carpenters and
Joiners of America, Inc., AFL-CIO, which provides that
millwright employees of the employer be assigned cer-
tain specified work. On May 18 the Respondent under-
took work on a project at the Columbus Trash Burning
Power Plant. In preparation for the work, Robert
Landry, the Respondent's superintendent, personally
contacted Robert Murray, a millwright who had previ-
ously worked with Landry and who had had experience
in the type of work to be undertaken, and offered him
employment. Landry told Murray that the Respondent
had been well satisfied with Murray's work on the previ-
ous job and with the fact that he knew what he was
doing and seemed to get along well with Daniel Naegele
who was scheduled to become the general foreman on
the new job. Murray stated that he was already working
elsewhere but Landry pursued the subject by suggesting
that Murray request dismissal at his other job and accept
work with the Respondent. The following day Landry
called again to persuade Murray to come to work for the
Respondent and when Murray accepted the offer Landry
asked him if he could recommend another millwright
I Stone & Webster, et al. Stipulated at the hearing.
Electrical Workers Local 401 (Stone & Webster Engineering Corp.), 251
NLRB 321 (1980); Plumbers Local 195 (Stone & Webster Engineering
Corp.), 240 NLRB 504 (1979); and Stone & Webster Engineering Corp.., 220
NLRB 905 (1975).
4 Admitted at the hearing.
5 Ibid.
with whom he would like to work as partners. Murray
recommended one Joe Teeters, another millwright, and
Landry subsequently hired Teeters as well.
On the first day on the job Murray was told by
Landry that he was to work both with and for Naegele.
The work consisted mainly of loading and unloading
equipment in preparation for the installation of quench
basins, a job at which Murry was experienced and at
which Naegele was not. Both men also worked with
blueprints. A few days later Naegele was made general
foreman and thereafter Murray worked with Teeters, the
millwright steward, and with Fred Weaver, the iron-
workers steward, as a threesome. The nature of the work
was a mixture of millwrights' work and ironworkers'
work so that it was agreed that the two trades would
work as a composite team sharing all of the work usually
performed separately by the two trades.
After the equipment was unloaded at the site, the job
consisted of hoisting the quench basins and installing
them 20 feet above the ground. To accomplish this, Tee-
ters and Weaver worked above the quench basins, weld-
ing and fitting while Murray worked below on the
ground throwing the tools up to the other two and man-
ning the hoist.
On the first day, after the quench basins were unload-
ed, Murray noticed the stepson of Thomas Marshall,
president, general manager, and sole owner of the Re-
spondent, shaking out material6 and moving valves
around, work which under the contract and the agree-
ment for composite work belonged to the ironworkers
and millwrights. Marshall's stepson, Dave, was a member
of the operating engineers and ordinarily operated the
forklift. He was neither a millwright nor an ironworker.
Upon noticing Dave doing the unit work, Murray,
during the first few days of the job, brought the subject
to the attention of the rest of the crew. Naegele agreed
with Murray that Marshall's stepson should not be doing
unit work but said that it was company policy and that
small companies worked that way on small jobs in order
to keep everyone working and make a profit. Murray
agreed but added that on a job such as this where there
were between 400 and 500 men working it should not be
permitted because there are too many union men around
who might start talking and perhaps bring charges
against them for working with noncraft people who are
doing the craft's work. Naegele agreed and said that he
would mention the poblem to Marshall but added that
Marshall would do what he wanted to do because it was
his company and wvould insist on running things his own
way. Later Naegele reported back that he had mentioned
the problem to Marshall and had even tried to get Dave
transferred to another job to eliminate the problem but
to no avail.
Thereafter, Marshall's stepson continued to perform
unit work and Murray and the other members of the
crew continued to discuss the matter during lunch and
coffeebreaks, 7 Murray bringing the problem to the atten-
I Shaking out is the term used to described the job of unloading parts,
checking their numbers, and sorting them out in accordance with their
order of installation by location.
I Naegele testified that the subject was only brought to his attention
once but I credit Murray's testimony as it appears above.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the stewards who, being aloft, could not see
Dave doing the unit work as well as Murray could.
Murray reported the problem to the stewards several
times. On at least three occasions, when Weaver saw or
heard that Dave was doing unit work, he would go over
to him and tell him to stop and then report the problem
to Naegele. On these occasions Naegele would tell
Weaver that he would bring the problem to Marshall's
attention but note that it probably would not do any
good. He added that Dave was only temporarily acting
as a fill-in man and that he planned to hire another full-
time man in a day or so. Teeters too complained to Nae-
gele after having the problem brought to his attention by
Murray and after two or three times seeing for himself
Dave performing unit work such as sorting parts. He
spoke to Naegele two or three times and Naegele prom-
ised to take care of it.
After the stewards complained to Naegele about Dave
doing unit work, Naegele brought the problem to
Landry's attention. Landry told Naegele to take care of
the matter himself since he, Landry, was busy with other
problems. Dave nevertheless continued to do unit work.
Meanwhile, on the second day of the job, Murray per-
sonally confronted Marshall's stepson and asked him
what he was doing shaking out the unit material. Dave
replied that he had been assigned to do it. When Murray
asked him if he had a union card, Dave replied that he
had an operating engineer's card which his father had
gotten for him. Murray then stated that he should then
be operating the forklift truck, not doing millwrights'
and ironworkers' work. Dave replied that he had been
instructed to do the disputed work by his father. He
added, "He owns this company and what he says, goes,
and its our standard policy for me to work." Following
this initial discussion between Murray and Dave several
additional conversations took place along similar lines.
On the second day of work while the crew was oper-
ating the chain falls, Dave came over and fell in with the
crew pulling the chain falls right with the others. Oper-
ation of the hoist, the pulling of the chain falls by hand,
is strictly unit work and according to the agreement
should have been performed only by millwrights and
ironworkers. Again, Murray complained to Naegele.
On about the fourth day of the job, Ron Sparks, the
millwrights business agent, happened to visit the jobsite.
Murray took the occasion to advise Sparks that Mar-
shall's son was doing unit work and to ask him if he had
given permission for him to do so.*Sparks denied that
Dave had been given such permission and promised to
take care of the problem. He added that it was Teeters'
job to take care of such matters and advised Murray not
to get involved. Nevertheless, thereafter, when Murray
saw Dave doing unit work, he did not discuss it person-
ally with him but did complain about it to Naegele.
Toward the end of the first week on the job, when
Weaver noticed that Dave continued to do unit work
and Naegele did not hire the additional ironworkers as
he had promised, he confronted Naegele once again.
Naegele explained that the Respondent still intended to
put on another man and that when it did it would no
longer have to use Dave. Weaver commented that he
thought that the matter was getting a little out of hand
but agreed to go along with Naegele once again. Subse-
quently, Weaver advised his business agent about the
problem and was told not to permit Dave to continue to
do the unit work.
Later in the first week Naegele was promoted official-
ly to superintendent, so advised the other workers and
told them that he was 100 percent in charge of the job.
He said that if they had any problems they should take
them to him. About this time he stopped working with
the rank-and-file employees and additional men were
hired to perform his work as well as other tasks. Despite
the hiring of additional employees Dave continued doing
unit work and Murray continued reporting it to the
stewards.
About this time, Landry made one of his occasional
visits to the site. While there he asked Murray how the
job was going. Murray replied that the work was going
along fine but that Marshall's son was creating quite a
problem among the men and the stewards and that if the
size of the crew were going to be increased as expected
the problem would get worse because the men would
not tolerate "this kid climbing off of that fork truck and
doing our work." Landry replied that it was Marshall's
policy that every man on the job worked and "that he
couldn't stand to see anybody on a fork truck for four
hours and do nothing." He added that Murray and the
others would just have to live with it and otherwise
made it clear that he could do nothing about the situa-
tion.
About the fourth or fifth day into the job Marshall's
stepson told him that Murray was upset about his doing
unit work. Nothing was done, however, at that time, be-
cause, Marshall testified, he did not consider the issue
important. Nevertheless, Marshall also testified that it
was about the fifth day of the job that Landry came to
him and advised him that he was going to terminate
Murray.
One day, during the second week of the job, Murray,
Landry, and Marshall were coming toward the worksite
from the storage area when Murray again noticed Mar-
shall's son shaking out bolts and other parts. Murray
commented to Marshall, "Tom, that's what's keeping the
dissension on the job and creating turmoil and the prob-
lem with the men. The boy's doing our work and its
going to have to stop because these stewards are not
going to allow it." Marshall made a disagreeable face,
according to Murray, but then said he would take care
of it. He then went over to speak to Naegele who, in
turn, walked over to Marshall's son who thereupon
stopped what he was doing.8
May 28 was the expiration date of the Respondent's
contract with the ironworkers union. The membership
was scheduled to vote on the new contract that evening.
If it rejected the Association's latest offer, a strike would
result. Inasmuch as the millwright union's contract was
to continue in effect, the millwrights were not going out
on strike. On the other hand, since the previous arrange-
ment, the millwrights could not work the job alone. It
I Marshall reluctantly conceded that this incident occurred as de-
scribed above in Murray's testimony.
1196
ALLIED RIGGERS
was therefore arranged that the millwrights would be
laid off until the ironworkers' strike was over at which
time all employees would return to the job.9
On May 28 Weaver was working aloft and, having
become somewhat irritated at Marshall's son continuing
to perform unit work, he asked Murray to let him know
if he saw Dave doing unit work. Dave, as had been his
practice, at one point began shaking out parts by order
of his father. Murray observed him doing this and ad-
vised Weaver. Later, Weaver came down and saw for
himself that Marshall's son was, in fact, engaged in per-
forming unit work. Weaver became angry. He went over
to Marshall's son and asked him what he was doing un-
loading the material. Dave replied that it was "none of
his damned business" but added that he had been told to
do it. Weaver replied, "Well, I told you to get off of it
before, and I'm telling you again. I want you off of it!"
Dave replied, "I don't give a damn what you want! My
dad told me to do it and I'm going to do itl" Thereupon,
Weaver went over to where Marshall was standing and
told him that his son was doing unit work again and that
it had to stop. In a raised voice he told Marshall, "I've
told Danny Naegele numerous times and now I'm telling
you." Marshall replied that he could not believe that
Weaver would actually bitch over such a little thing. He
added, "You're trying to be pricks with me, but if that's
what you want, I'll take him off of it." Weaver turned
away, walked over to Naegele, and told him that he did
not want to see the operator doing unit work anymore,
that he was putting a stop to it right then. Marshall then
took his son off the shake out job and told Weaver to
have his men do the work. While Weaver, Teeters, and
Murray unloaded the box and proceeded to shake out
the parts, Marshall went over to speak to Naegele and
said, "If they're going to play it by the book, we're
going to play it by the book." He told Naegele that
work rules which had been rather lax before would be
tightened up so that the starting time would thereafter be
7:30 a.m.; lunch would be 11:30 to 12 noon; there would
be no more coffeebreaks in the afternoon;' o and quitting
time would be 4 p.m.11 He added that the first man to
leave before 4 p.m. would be terminated with no excep-
tions.
Naegele shortly afterwards came over to where
Murray, Teeters, and Weaver were working and said,
"Well, you guys have really done it now. Tom says that
[ifl you guys are going to be pricks with him, he's going
to be a prick with you. You're complaining about his son
working and he's not going to tolerate it. So if his son
don't work, from now on we're going to be 100 percent
by the book around here. There'll be no more [after-
noon] coffee breaks. There'll be no more early quits.
Anyone caught bullshitting or coming in a minute late or
doing anything wrong will be fired immediately. This is
effective immediately and I want you to notify all the
9 This arrangement was made on the evening of May 28 following the
ironworkers strike vote.
I' No afternoon coffeebreaks were provided for by the contract.
i' The Respondent's employees had previously been permitted, as a
rule, to quit 10 to 20 minutes early. Naegele had previously given his per-
mission to Teeters to leave early provided he had given a good day's
work.
men." Teeters replied that he had not done anything
wrong, that he had been doing this job and giving the
Respondent an honest day's work and would therefore
continue to take his coffeebreaks and do as he had been
doing, adding that, if the Respondent wanted to fire him
for it, it could go ahead and do it Weaver added that if
Marshall wanted to run the job by the book it was fine
with him.
At 3:45 p.m. on May 28 the employees started picking
up their tools and putting them in the gang box just as
they usually did. The employees of other companies
were leaving, heading toward their cars. However, Mar-
shall was standing by the gang box and said to Murray,
referring to Weaver, "If that man walks out the door,
he's fired." Weaver, who was already half way to the
door, continued on out and Marshall stated, "That's it,
he's fired. I said 4:00 and I mean 4:00 for everybody. If
you guys are going to be pricks with me, I'm going to be
a prick. I've never been one before, but I've had enough
of this shit. Now this is the way it's going to be from
now on until you guys get in line." At this point Mar-
shall noted that Teeters was missing and asked where he
was. Naegele then informed Marshall that Teeters had
asked for and had been granted special permission to
leave early. Marshall said that, in that case, it was all
right. Murray and the other employees waited around
past 10 minutes til 4 until about I minute til 4 at which
time Marshall nodded and Murray and the other employ-
ees started for the door and headed for their cars.
Marshall and Murray walked together toward their
cars. During the walk Marshall explained to Murray that
the reason he was enforcing the rules more strictly was
because he felt that it was completely wrong for the
Union to press such a small point by interfering with his
son working. He explained that it was necessary for a
small company to work everybody on the job every
minute, that everybody had to produce in order for him
to make a living. He added that it was his company and
that he had to keep control over it. Murray agreed that
Marshall was 100 percent correct where jobs with only
one or two employees were concerned. He argued, how-
ever, that this job was too large, that with as many men
as there were around he could not agree with Marshall.
He told Marshall that he was wrong to force the issue
because the stewards had to stand up for the Union be-
cause there were too many people around and they
could not get away with ignoring the union rules. Later
that day, Marshall called the ironworkers' business agent
and informed him that he did not want Weaver back on
the job.
On the evening of May 28, the ironworkers voted to
reject the Association's proposed contract, went on
strike, and so as it turned out May 28 was the last day of
work for the Respondent's employees at the Columbus
Trash Burning Power Plant site. At the union hall where
the vote took place, Weaver was informed by Naegele
that he had been fired. Weaver had known nothing about
this termination and asked Naegele why he had been
fired. Naegele replied that he thought it was because
Weaver had gone outside the chain of command when
he complained directly to Marshall rather than to Nae-
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gele that his son was doing unit work. According to
Naegele, Weaver was supposed to have first brought his
complaint to Naegele's attention and his failure to do so
was the reason for his discharge. 12
In accordance with prior arrangements made with the
millwrights' business agent, on the evening of May 28,
the Respondent's millwright employees were sent layoff
notices so that they could draw unemployment benefits.
Murray, however, was sent a letter advising him that his
layoff should be considered permanent. Landry testified
that the decision not to rehire Murray was his own al-
though it was discussed with and approved by Marshall.
He stated that the decision had nothing to do with Mur-
ray's complaining about Marshall's son doing unit work.
Sometime during the next 2 weeks a new contract was
executed with the ironworkers and the Respondent
called back its ironworker and millwright employees to
the Columbus Trash Burning Power Plant site and to
various other jobsites where it had construction in
progress. Though some of the millwrights and ironwork-
ers previously working at the trash burning plant site
were recalled to their previous jobs, Murray was not re-
called at all and Weaver was recalled but sent to a differ-
ent jobsite. 1 Marshall, in testifying concerning the deci-
sion not to recall Weaver to his previous job, simply
stated, "I didn't feel he belonged on that job, which is
my prerogative."
When Naegele called up the hiring hall to recall cer-
tain millwrights, Sparks noted that Murray was not being
recalled and asked why not. Naegele said that he did not
know. Subsequently, Sparks had occasion to discuss the
subject with Marshall. Marshall gave no definite reason
to Sparks for not recalling Murray except to say, "I'd
rather not have him on the job. We don't want to recall
him." Sparks did not pursue the subject except to caution
Marshall that it would be in his best interest to call him
back because he expected that Murray might file charges
with the NLRB. Sparks made this statement because he
was aware that Murray had, on previous occasions, filed
charges both with the Board and with the Union based
on circumstances not here involved.
In mid-June Murray learned that the trash burning
plant job had started up again. He called Sparks in order
to determine if what he had heard was true. Sparks told
him it was. Murray, despite the fact that he had received
the permanent layoff notice in early June, still believed
that he was going to be called back, that the notice was
merely a matter of form and that everyone had received
a similar notice. Murray asked Sparks what was going
on. Sparks replied that the Respondent had decided not
to recall him and that he had already been replaced. He
added that he had not been given any reason for the Re-
spondent's failure to recall Murray.
When Teeters was recalled to the trash plant job, he
asked Naegele why Murray had not been recalled. Nae-
12 Both Marshall and Naegele were present within a few yards of each
other when the incident occurred. I reject Naegele's explanation as to the
reason for the termination and find that it was because he tried to keep
Marshall's son from doing unit work.
's Weaver was sent to the Buckeye Steel construction site, a job
which started up on the same day that other employees were called back
to the trash plant job.
gele replied that he did not know,t 4 but that it had not
been his decision. Teeters told Naegele that, in his opin-
ion, Murray should have been recalled.
After Murray learned that the trash plant job had been
started up again, he called Naegele. Naegele confirmed
that the job had been going for about 2 weeks at the
time of Murray's call. Murray asked why he had not
been recalled. Naegele replied that he did not have any-
thing to do with the decision not to recall Murray and
did not know "a whole lot about it," but added, "They' 5
told me that they fired you for agitating up the stewards
about his son." Murray denied the accusation, Naegele
explained, "They feel that you were responsible, that if
you hadn't been there . . . and agitating 'em or putting
'em up to it, that the stewards would have been willing
to let it slide and that's the reason that you were dis-
charged .... You were agitating and keeping the stew-
ards riled up and keeping turmoil on the job. So there-
fore, they decided to terminate you and the ironworker
steward .... If you guys hadn't raised cain about his
son, you wouldn't have been fired. You'd still be there."
Murray then asked if there had been any complaint
about his work. Naegele replied, "Nope, you were, in
my opinion . . . you were the best man on the job. You
were a great help to me . . . There was absolutely no
complaint about your work or anything. You done qual-
ity work."' Murray asked Naegele to see what he could
do about getting his job back and Naegele agreed to talk
to Marshall about it and to call back in a couple of days.
When Naegele failed to call back as he said he would,
Murray called him a second time. Naegele, on this occa-
sion, told Murray that Marshall would not take him
back. Murray said that there had to be a reason why he
was not recalled other than his part in keeping Marshall's
son from doing unit work. Naegele replied that "they
also thought that you were undermining me." Naegele
added that he did not believe this was the case but that
"they said you were making suggestions and stuff on
how to run the job and how to expedite the job and that
that was my prerogative as superintendent and therefore
you were undermining me."' 7 Murray then reminded
Naegele that he, Landry, had asked Murray to help him
with suggestions because of Murray's experience and his
own lack thereof. Naegele agreed. There was some repe-
tition of the first telephone conversation whereby Nae-
gele informed Murray that the Respondent's failure to
recall him was based on his "agitating the stewards to go
14 I found Teeters' testimony on this subject somewhat evasive and
lacking in candor.
aI Naegele mentioned to Murray having had conversations on the sub-
ject with both Marshall and Landry.
'6 The description of the telephone conversations between Naegele
and Murray appear as credibly described by Murray. Naegele's denials
are not credited and, where his description of the content of these several
phone calls differs from that of Murray, his testimony is rejected in favor
of that of Murray. Naegele admitted to having a poor memory with
regard to these conversations.
1 Naegele testified that his conversation with Murray concerning his
undermining his position occurred after Naegele talked with Landry
about Murray's possible recall. Naegele testified that, when he asked
Landry why Murray had not been recalled, Landry told him that it was
because Murray was trying to cut Naegele's throat by trying to take his
job.
1198
ALLIED RIGGERS
to the company and . . . raise hell to. . . keep that boy
off the work." Naegele also suggested that Sparks may
have had something to do with Murray not being re-
called but admitted that he had no proof.'s
In mid-July there was still a third telephone conversa-
tion between Naegele and Murray during which the con-
tent of the first two conversations was reiterated. Nae-
gele told Murray that it just boiled down to his and
Weaver's complaining about Marshall's son doing unit
work. He said that Murray had really alienated Marshall
against him and that Murray would probably never get
to work for him again as a result of it. Naegele stated
that if it had been up to him Murray would not have
been terminated because he had no complaints with
Murray, his work, or his character. He said that in his
opinion Murray had gotten a raw deal. After this third
conversation between Murray and Naegele there were
no further contacts between Murray and any member of
the Respondent's management. Although Murray, sever-
al occasions thereafter, tried to contact Naegele to dis-
cuss the problem further, Naegele could not or would
not take the call and Murray gave up trying.
The Defense
The Respondent takes the position that the decision
not to recall Murray was made by Landry. Landry testi-
tied that his decision had nothing to do with Murray's
complaining about Marshall's son doing unit work.
Rather, he testified, that the decision was made to let
Murray go early in the second week of the job, although
he had been thinking about it earlier, and that it was
based on several discussions between Landry and
Murray during which Murray complained to Landry
about Naegele's ability to run the job. According to
Landry, on these occasions Murray would say that if
Landry would let Murray run the job he could do the
job faster and make the Company more money. In reply,
Landry testified, he would tell Murray that the way
Naegele was doing the job was the way Landry had told
him to do it and that Murray should not complain.
Landry stated that similar incidents occurred perhaps
eight times during the first 4 days on the job.
According to Landry's testimony, on May 27, the day
before the strike, as he and Marshall were leaving the
jobsite walking toward their cars, Murray was walking
behind them and almost with them. During this walk
Murray once again stated how much faster he could do
the job if Naegele would just listen to him or if he,
Murray, had more say over the job. Landry replied that
Naegele was doing the job the way he was told to do it
and that he did not want to hear any more complaints.
He added that he had hired Murray to help Naegele, not
to complain about him. Landry pointed out, on this oc-
casion, that he would make the decision on how to run
and rig the job. Landry acknowledged, in his testimony,
that hoisting the quench basins into place had been a
tough job but that the means of accomplishing the job
had been decided on by Marshall and himself. He testi-
fied that he wanted the job done as they had planned it
18 Record evidence indicates differences had occurred in the past be-
tween Sparks and Murray.
and was afraid that Murray's complaining would inter-
fere with accomplishing this objective. He testified fur-
ther that Murray's continued complaining was the basis
for his decision to let him go. Though Landry testified
that Murray stated on numerous occasions that he could
do the job faster and cheaper his own way, he conceded
that Murray never said that he wanted Naegele's job.
Nevertheless, when it appeared that the ironworkers
would be going on strike and the millwrights would be
laid off, it was decided that Murray should not be re-
called because, in Landry's judgment, the job could not
get done properly with Murray's constant complaining.
On cross-examination Landry was asked whether any
employees complained to him about Murray's perform-
ance on the job. He conceded that they had not. He was
then asked if any of the employees had complained that
Murray had not been cooperating with Naegele. Again,
Landry admitted that there had been no such complaints.
He was then questioned as to whether Naegele had ever
complained to him about Murray failing or refusing to
cooperate with him. Landry replied in the negative.
The Respondent called Marshall to testify in support
of Landry as to the reasons for the Respondent's failure
to recall Murray. Marshall testified that Murray ap-
proached him a couple of times- and stated that if he
would let him handle "this job" he could make more
money for the Company. By this statement Marshall un-
derstood Murray to mean that because of his experience
he could run a job faster than Naegele could. Marshall
admitted, however, that Murray never mentioned Nae-
gele by name during these discussions. In addition to two
times that Marshall could remember Murray making
such statements, he also testified to recalling the incident
recounted by Landry which Landry reported as having
occurred on May 27. Marshall, though agreeing with the
facts as described by Landry, placed the incident some-
what earlier, perhaps on the fourth, fifth, or sixth day of
the job and testified that Landry had told him that he
was having problems with Murray in the sense that he
felt that Murray wanted the job of general foreman.
Somewhat later, Monday or Tuesday of the second
week, according to Marshall, Landry told Marshall that
he thought that he was going to have to fire Murray, to
which Marshall rejoined that it was Landry's business.
Supposedly, Marshall then asked on what basis and
Landry replied that he thought that Murray was under-
mining Naegele by not cooperating with him. Marshall
testified that he and Landry, at this time, discussed brief-
ly laying off Murray the forthcoming Wednesday, the
day the pay period ended, but decided to wait 2 more
days when the ironworkers were expected to strike at
which time they could lay him off along with the other
millwrights and simply not recall him. Marshall ex-
plained that in a strike situation the millwrights would
not be entitled to unemployment compensation but if
they were laid off they would receive such benefits. He
testified that Landry had come to him early in the week
and told him that Sparks had called from the mill-
wrights' union hall and asked Landry if he would mind
laying off the millwrights since they had not been work-
ing much lately so that they could draw unemployment
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits. Marshall testified that he would have no objec-
tion to granting Sparks' request.
At first glance Marshall's description of the sequence
of events would seem plausibly credible. However,
Landry testified as follows:
Q. And would it be safe to say that it's that same
reasoning you just described which led you not to
recall Mr. Murray when you recalled everyone
else?
A. I was-at that particular night, I wasn't sure
how I was going to do it. Until Friday after the
vote for the ironworkers to go on strike, ' and Ron
Sparks called me and asked me, he said, "You
know, these millwrights have been laid off and they
haven't been working very long, how's chances on
laying 'em off?"
Q. As opposed to firing them?
A. As opposed to them being off work because
of the strike.
Q. Oh.
A. And I guess the thought come to my mind
right then, well, this is the perfect time. So yes, I
said, "I will talk to Tom, but I'm sure we can do
this."
So I talked with Tom and we decided to lay ev-
erybody-all the millwrights off, so they could
draw Unemployment, and with Bobby, we sent him
a letter to consider this as a permanent layoff.
Thus, there exists a serious discrepancy between the
testimony of Marshall who places Sparks' call on or
before Wednesday, May 26, and that of Landry who cre-
dibly established the call as occurring on the evening of
May 28 after the strike vote. It strikes me as patently
clear that Marshall, in an attempt to establish a pretext
for terminating Murray before the events of May 28, tes-
tified to having relied on Sparks' request for a layoff of
millwrights as justifying the decision to keep Murray on
the payroll past Wednesday, the payroll closing date de-
spite an earlier decision to lay him off. Landry's credited
testimony that Sparks did not make his request and
Landry and Marshall did not decide to grant the request
until the night of May 28 clearly undermines Marshall's
testimony that but for the strike the Respondent would
have terminated Murray earlier and casts serious doubt
as to his credibility although the Respondent's position
contains other weaknesses as well. For example, Mar-
shall admitted that no employees complained to him
about Murray, his attitude, or his work performance and
that Naegele did not complain about him either. It is dif-
ficult to believe that Landry and Naegele would termi-
nate Murray for failure to cooperate with and for under-
mining Naegele when neither Naegele nor any other em-
ployee in the crew ever complained about such matters
or brought them to the attention of upper management.
Naegele, the alleged victim of the purported lack of
cooperation and undermining, testified that he never
complained to either Landry or Marshall about Murray's
work performance or about any supposed lack of coop-
19 May 28.
eration on Murray's part. He also denied that he had any
complaints in this regard which he did not pass on. He
volunteered, "I'll be truthful with you. I had no qualms
about the quality of the man's work." He added that he
received no complaints from other employees about
Murray's work performance or failure to follow his in-
structions. Naegele testified that Landry told him that
every time Landry or Marshall came to the jobsite,
Murray would complain that he could do the job better,
faster, and cheaper and could make more money for the
Company. He added, however, that he had never been
advised of this charge until after Murray's termination.
With regard to the reasons for termination offered by
the Respondent the record indicates that Murray was
specifically sought out for hire by the Respondent be-
cause he had previous experience on jobs similar to the
one at the trash plant, presumably because he could
make suggestions as to how to get the job done. In line
with the apparent desires of the Respondent's manage-
ment, Murray did, in fact, make certain suggestions but
he denied that he was ever openly critical of the work
being done by Naegele. On the contrary, he stated af-
firmatively on the record that there was nothing wrong
with Naegele's work and that he never complained to
either Landry or Marshall as to how he got the job
done. Specifically, he denied ever stating that he could
do the job faster and make more money but admitted
that in discussing certain segments of the job he advised
Marshall that it should have been done differently. In
particular, Murray testified to an incident wherein Nae-
gele insisted on using a thinner cable and Murray advised
that a thicker cable was required. When the thinner
cable snapped, Murray was reprimanded but pointed out
to Marshall that it was not his decision to make and he
could not override Naegele. At that time he told Mar-
shall that he would have used a heavier cable, that it was
silly to use the smaller cable, and that the error was due
to Naegele's inexperience. On another occasion Murray
suggested that certain parts be assembled on the ground
and hoisted up as a unit rather than constructed aloft.
Naegele adopted this suggestion which resulted in the
saving of a great deal of time. Naegele complimented
Murray for the suggestion.
As to suggestions in general, Murray testified that he
had, in fact, made suggestions to Naegele because they
were working together as a team. He credibly main-
tained, however, that the suggestions were made to Nae-
gele alone, in the course of their work as a two-man
crew, not to Landry. Such suggestions were usually
made during a general discussion as to how to get the
job done and came from Murray on some occasions and
from Naegele on others. When the employees were
working in crews of three or four according to Murray,
everyone on the crew made suggestions as did members
of management when they came by. Naegele never com-
plained about suggestions offered and Naegele and
Murray worked well together. Similarly, according to
Murray, neither Marshall nor Landry ever criticized or
reprimanded Murray for making suggestions. The testi-
mony of Landry and Marshall notwithstanding, I credit
Murray on this point.
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ALLIED RIGGERS
As far as other rank-and-file employees on the job,
Teeters testified that he never criticized Murray's work
to management and, in fact, never had reason to do so.
He stated that Murray made certain suggestions on how
certain jobs should be accomplished but added that he,
himself, also made suggestions and that perhaps Weaver
did as well. He testified that everyone put his two cents
in, thus agreeing with Murray. He stated that he never
heard Murray complain about the way Naegele was run-
ning the job nor suggest that he might be able to do as
good a job or a better job than Naegele. Occasionally,
Teeters admitted, Murray and/or he might disagree with
the specific way Neagele wanted to do a job. On these
occasions Naegele would inform them that management
wanted the job done a certain way and so that was the
way it had to be done.
Weaver testified tnat he never talked to Naegele,
Landry, or Marshall about Murray's job performance or
attitude on the job. He agreed with both Teeters and
Murray that on numerous occasions all of the rank-and-
file employees offered suggestions on how a particular
task on the job should be done, always in Naegele's pres-
ence. He added that the crew, including himself, talked
over various approaches to certain problems and that
this was a matter of safety. He testified that he never
heard Murray complain about how Naegele was running
the job.
Conclusion
The record indicates that Murray, on a number of oc-
casions, attempted to get management and the stewards
on the job to keep Marshall's son from performing unit
work. Similarly, it is clear from the record that Murray's
efforts came to the attention of management. Likewise,
the record indicates that Marshall, the Respondent's
owner and chief officer, was extremely upset that
Murray and Weaver insisted on enforcing the Union's
rights under the contract and demonstrated his annoy-
ance on May 28, the day of the layoff, by taking coun-
termeasures against his employees in the form of dis-
criminatory changes in working conditions. These factors
plus the timing of the Respondent's refusal to recall
Murray and Weaver to the trash plant job when it start-
ed up again convince me that its failure to recall these
"troublemakers" was discriminatorily motivated.2 0
Finally, I find the Respondent's position that it refused
to recall Murray because he attempted to undermine
Naegele as superintendent unsupported by the evidence,
particularly in light of the discrepancies contained in the
testimony of Respondent's own witnesses. I conclude
that Respondent failed and refused to recall Robert Lee
Murray in retaliation for his joining with other employ-
ees to complain about the assignment of unit work to
nonunit employees in violation of Section 8(a)(1) of the
Act. 2l
20 Inasmuch as the failure to recall Weaver was not alleged in the
complaint, I do not find a violation on that score but do find the discrimi-
natory failure to recall Weaver to the job where Marshall's son was
working supportive of the allegation concerning Murray.
21 Interior Alterations, 264 NLRB 677 (1982).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes, burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative 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 actions
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully failed
and refused to recall Robert Lee Murray, I shall recom-
mend that the Respondent offer him immediate reinstate-
ment to his former position or, if such job no longer
exists, to a substantially equivalent position, without loss
of seniority or other rights and privileges, discharging if
necessary any replacement, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum
of money equal to the amount that he normally would
have earned from the date he should have been recalled
to the date which a bona fide offer of reinstatement is
made, in accordance with the Board's formula as set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977).22
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(aX1) of the Act
by failing and refusing to recall Robert Lee Murray in
order to discourage employees from engaging in protect-
ed concerted activities, thus interfering with, restraining,
and coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER2 3
The Respondent, Allied Riggers, Inc., Columbus,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recall or otherwise deny
employment to any employee because he engages in, or
has engaged in, protected concerted activities.
22 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
22 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the purposes of the Act.
(a) Offer to Robert Lee Murray immediate and full re-
instatement to his former position, without prejudice to
his seniority and other rights and privileges dismissing, if
necessary, any replacement, and make him whole for any
lost earnings resulting from the discrimination against
him by payment of a sum determined in accordance with
the formula set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its premises in Columbus, Ohio, copies of
the attached notice marked "Appendix." 2 4 Copies of said
notices, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days thereafter in conspicuous places includ-
ing all places where notices to employees are customari-
ly posted. Reasonable steps shall be taken by the Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
" 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" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1202