American Hoist & Derrick Co.

National Labor Relations Board - Board Decisions

Nov 18, 1974

214 N.L.R.B. 1016 (N.L.R.B. 1974)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Brownhoist Division , American Hoist &
Derrick Company and Local 2015, United Steel-
workers of America, AFL-CIO. Case 7-CA-10467
November 18, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 22, 1974, Administrative Law Judge Sam-
uel Ross issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent that they are consistent with this Decision
and Order.
1. The Administrative Law Judge found that the
Respondent's refusal to reemploy Stafanski before
the expiration of a 6-month period after his last lay-
off, because of the pendency of unresolved griev-
ances concerning its policy in this respect, was un-
lawfully motivated and violative of Section 8(a)(3)
and (1). We do not agree.
The facts are fully set forth by the Administrative
Law Judge and are not substantially disputed. Brief-
ly, Respondent adopted a practice of laying off pro-
bationary employees before they completed their
probationary periods and refusing to rehire them
within 6 months after layoff in order to prevent their
acquiring or retaining seniority under the terms of
the existing contract with the Union. Employee
Reinholz, who had been laid off on April 12, 1973,
pursuant to this policy, filed grievances concerning
the practice which were taken to arbitration. Stefan-
ski had been rehired on March 13, and laid off on
April 13 before his probationary period was up, be-
cause of lack of work,' and he sought reemployment
on July 18 or 20. As the Administrative Law Judge
found,2 the Respondent at that time clearly refused
1 Apparently the Administrative Law Judge was concerned with his own
view of the moral aspect of the Respondent's practice, for, on two occa-
sions, his Decision adverts to the fact that Respondent laid off Stefanski
"allegedly for lack of work," whereas the parties stipulated on the record
that his layoff was due to lack of work
2 As set forth in the Administrative Law Judge's Decision at In 15 and
the test to which it is appended, Stefanski testified (and was credited) that
he was told by industrial Relations Manager Kender that he could not be
put back to work just then because "they have some kind of grievance going
to permit Stefanski to return to work until the 6
months had expired because it felt that to do so
would jeopardize its position in the Reinholz matter.3
In these circumstances, we find no basis for con-
cluding that the Respondent had a discriminatory
motive for denying reemployment to Stefanski on
July 18 or 20. It is clear that the Respondent knew
that he had not filed any grievance, but, more impor-
tantly, there is no basis for inferring that the Respon-
dent was opposed to utilization of the grievance ma-
chinery or would take any adverse action against an
employee for that reason.' Since there is no ground
for finding that the Respondent acted other than for
the reason it gave-to protect its position in the arbi-
tration of the Reinholz grievances-and as we see
nothing unlawful in an employer's refusing to rehire
an employee for that reason under the circumstances
here, we find no violation of Section 8(a)(3) or (1).
2. The Administrative Law Judge also found that
the Respondent refused to return Stefanski to work
because of the pendency of, and his involvement in,
the instant charge, in violation of Section 8(a)(4) and
(1). However, we find that the record does not sup-
port his conclusion.
Following the meeting of July 18 or 20 at which
Stefanski was denied reemployment, he reported the
incident to the Union's president. As a result, the
charge in the instant case was amended on August 6 5
to allege that the Respondent violated Section 8(a)(4)
and (1) in that it refused to hire "one of the persons"
covered by its initial charge (but not identifying Ste-
fanski specifically) "because of his involvement with
the Labor Board and his giving of information con-
cerning" the charge in the instant case.
Up to that time, the only reference to the charge so
far as Stefanski was concerned was his own state-
ment in the July interview that he had nothing to do
with filing it and Industrial Relations Manager
Kender's reply that he knew this. However, accord-
ing to the credited testimony of Union President
Gray, about 2 weeks later, during the course of a
regular grievance meeting between the Respondent
and the Union, Gray inquired why Stefanski had not
been recalled, and Kender replied "that there was a
grievance pending on Mr. Reinholz and also that
on and if they put me back to work that would prove that Mr
Remholz's case was correct" but that the issue would probably be resolved
in 2 to 3 weeks
l In this connection we note that the arbitrator's award of December 19,
1973, agreed with the Respondent and dismissed Remholz' grievances
4 See, e g, G W Davis Corporation, 202 NLRB 204 (1973)
s The Union's initial charge was filed on July 9 alleging violations of Sec
8(a)(3) and (1) by the termination of probationary employees prior to the
35th working day and hiring new employees but refusing to rehire laid-off
probationary employees until after 6 months had expired, which is also the
basis for a grievance filed by the Union on February 9 and for the griev-
ances filed by Remholz However, neither the initial unfair labor practice
charge nor the Union's grievance named any specific employees
214 NLRB No. 148
INDUSTRIAL BROWNHOIST DIV., AMERICAN HOIST
Donald Stefanski was involved in the Labor Rela-
tions charge .... "
On this state of the record, and even accepting this
as an accurate version of Kender's response," we are
not satisfied that the General Counsel has estab-
lished that the Respondent was in fact unlawfully
motivated. There is no evidence of any kind prior to
the meeting on or about August 20 that could sup-
port an inference that the charge played any part in
Respondent's refusal to reemploy Stefanski. It is to
be noted that in July the unfair labor practice charge
concerned the same matters as were involved in the
union and Reinholz grievances and that Stefanski's
situation was the same as Reinholz' insofar as it con-
cerned Respondent's refusal to reemploy before the
expiration of 6 months. Therefore the reference on or
about August 20 to the pending arbitration and to
Stefanski's being involved in the charge does not nec-
essarily mean that Respondent was taking punitive
action against him because of the charge, but is
equally construable as meaning that Respondent was
seeking to preserve its position (which was the same)
in both the arbitration and the unfair labor practice
cases. Absent some independent evidence warranting
the inference that the former interpretation was in-
tended and Respondent meant that it was seeking to
retaliate against Stefanski, we construe the statement
as an explanation that the disposition of the griev-
ances and the charges would be the basis for de-
termining whether Stefanski and the other laid-off
probationary employees had the right to be reem-
ployed within the 6-month period. In addition, we
note that Stefanski was reemployed on November 20,
1973, and was still working for the Respondent at the
time of the hearing.' Accordingly, we find that the
General Counsel has not sustained his burden of
proof that Respondent's refusal to reemploy Stefan-
ski was violative of Section 8(a)(4) and (1) of the Act.
In view of the above, we shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
6 The Respondent excepted strongly to the description of the record testi-
mony in In . 18 of the attached Decision
r Stefanski was rehired as the result of an informal settlement agreement
which was later vacated , the complaint herein was reissued thereafter The
Administrative Law Judge notes that the Respondent failed to pay the
backpay agreed upon and states (in his fn I) that "No reason is given for
the admitted failure [of Respondent] to post the notice to employees " Any
adverse inference that might have been intended by this recitation is unwar-
ranted , especially as the record discloses that the Respondent did not act
arbitrarily but, rather , because within a week after reaching the settlement
1017
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
the Respondent learned that Stefanski had additional interim earnings of
$985 50 (this amount was stipulated by the parties herein ) over the amount
used in computing the net backpay due him and Respondent was unable to
obtain agreement to a modification of the amount due.
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried before me in Bay City, Michigan, on February 5,
1974, based on a charge and an amended charge filed by
the above-named Union on July 9 and August 6, 1973,
respectively, against Industrial Brownhoist Division,
American Hoist & Derrick Company (herein the Respon-
dent or the Company), and on a complaint which initially
issued against the Respondent on September 14, 1973. In
substance the complaint alleged that the Respondent en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act,
by failing and refusing to rehire former employee Donald
Stefanski because of the pendency of unfair labor practice
charges filed by the Union against the Respondent, and
because the Union had filed and initiated grievances on
behalf of Stefanski and other employees. On November 20,
1973, in accordance with the terms of an informal settle-
ment agreement executed by all parties, the Respondent
rehired Stefanski, but it thereafter refused to make pay-
ment to him of the agreed upon amount of backpay or to
post the notice to employees required by the terms of the
settlement agreement . Accordingly, on December 19, 1973,
the Regional Director of the Board for Region 7 vacated
and set aside the settlement agreement and reissued the
complaint herein. The Respondent filed an answer which
admits that it did not comply with all the terms of the
settlement agreement, and denies the substantive allega-
tions of the complaint and the commission of unfair labor
practices '
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent , a Delaware corporation whose princi-
pal office and place of business is located in St . Paul, Min-
nesota, is engaged in the business of manufacturing and
selling industrial cranes and hoists . The Respondent's plant
in Bay City, Michigan, is the only facility involved in this
proceeding . In the year 1972, a representative period, Re-
spondent manufactured , sold, and shipped products valued
in excess of $50,000 from its plant in Bay City directly to
t The Respondent's answer affirmatively alleges that its failure and refus-
al to comply with the backpay provisions of the settlement agreement was
motivated by its later acquisition of information which led it to believe
"that the amount represented [ to it] as lost earnings by the Region was
inaccurate " No reason is given for the admitted failure to post the notice to
employees
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places located outside the State of Michigan. On the fore-
going admitted facts, I find that it is engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and I also find that Local 2015, United
Steelworkers of America, AFL-CIO (herein called the
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts
The Union has been the collective-bargaining represen-
tative of the Respondent's production and maintenance
employees at its Bay City plant for many years. The cur-
rent collective-bargaining agreement between the Respon-
dent and the Union, effective from September 1, 1972, to
September 1, 1975, requires all employees hired after the
effective date of the agreement to become members of the
Union within 30 days after the completion of their proba-
tionary period "of 35 days worked." The contract further
provides that new employees retained after their proba-
tionary periods accrue seniority as of the date of their hire,
and that such seniority is lost, inter alia, in the event of a
break in service unless "the employee is rehired within six
(6) months."3
Donald Stefanski, the alleged discriminatee in this case,
was first hired by the Respondent on July 27, 1967. Ac-
cording to the stipulation of the parties, he was laid off for
lack of work on November 2, 1967, recalled from layoff on
October 8, 1968, drafted into the United States Army and
placed on military leave on March 28, 1969, returned from
military duty and reemployed by Respondent on March
18, 1970, and again laid off for lack of work on November
5, 1970. Stefanski was recalled by the Respondent on July
19, 1972, to work on the third shift, he worked just one
night, and voluntarily quit for personal reasons 4
In December 1972, Stefanski applied for work to Mi-
chael Pettigrew, the Respondent's employment manager,
and was referred by Pettigrew to General Foreman Robert
Morrison to be interviewed for the job of structural fitter.5
On December 12, 1972, after interviewing Stefanski, Morri-
son indicated on the referral slip from Pettigrew that he
would give Stefanski "a trial as structural fitter."6 Stefanski
took the slip back to Pettigrew, was sent to a hospital for
X-rays of his back, and told that he would be notified
when to report for work. That same evening, Pettigrew no-
tified Stefanski that he could not be reemployed then be-
cause his review of Stefanski's record had disclosed that 6
2 G C Exh 2, secs 3 1 and 3 2 Under the parties ' prior contracts, the
period of probation had been 60 calendar days.
3 See sec 9 2 of the contract
° Stefanski admitted that he returned to work for the one night on July 19,
1972, so that he could preserve his "full [seniority ] rights" and go back to
work for the Respondent in the fall when work on his farm ended
5 Stefanski previously had worked for the Respondent as a welder
6GC Exh 7
months had not yet elapsed since his last employment by
Respondent, and the resumption of his employment before
the expiration of 6 months would allow him to "regain all
[his] Union and seniority rights," which the Respondent
did not permit. Pettigrew told Stefanski that if he still
wanted reemployment by Respondent, that he come back
and see him after the 6-month period following his last
employment by the Company expired.?
On February 9, 1973,8 the Union filed a grievance with
the Respondent charging the Company's labor relations
department "with premeditated discrimination" in adver-
tising for and hiring new employees while at the same time
refusing to rehire qualified former employees who were ap-
plying for reemployment until 6 months had elapsed from
the date of their terminations, thereby causing the former
employees to lose their earlier seniority dates for pension
and other rights.9 On March 13, following the filing of this
grievance, the Respondent as noted above rehired Stefan-
ski to work as a structural fitter. However, on April 13, he
again was laid off, allegedly for lack of work.
On April 17, probationary employee Rudy Reinholz,
who also was laid off on April 12, filed a grievance with the
Union in which he charged the Respondent with terminat-
ing probationary employees just before the completion of
their period of probation, and with replacing them with
new employees, in order to avoid providing insurance and
other fringe benefits for the employees thus terminated.10
On the same day, Reinholz also filed a grievance against
Respondent in which he alleged that he had completed his
probationary period, and that the Respondent had failed to
comply with the terms of the contract in effecting his lay-
off.' These grievances were processed by the parties
through the first three steps of the grievance procedure but
were not resolved.
r The findings above are based on Stefanski's credited testimony Petti-
grew , a witness for the Respondent , did not controvert Stefanski 's testimony
regarding this incident Paul Kender , the Respondent's personnel director
and industrial relations manager in December 1972, testified that he made
the decision not to rehire Stefanski because of the latter 's previous poor
attendance record I place no credence whatsoever in this testimony of Ken-
der for the following reasons Stefanski concededly was never told either by
Pettigrew or Kender that the failure to hire him in December 1972 was
based on his attendance record, but he uncontrovertedly was told that it was
bottomed on the prematurity of his application Moreover, in March 1973
(after the expiration of 6 months from Stefanski's last employment by the
Respondent), Stefanski was hired by the Company to work as a structural
fitter, notwithstanding his prior attendance record which assertedly motivat-
ed the refusal to hire him in December 1972 Kender, in an effort to blunt
the impact of the obvious inconsistency between the hiring of Stefanski in
March and the asserted reason for not doing so in December, testified that
in March, the Respondent "had a desperate need for structural fitters, [and]
we were hiring anyone with minimal skills and qualifications for that job "
However, the Respondent produced no hiring records which obviously were
available to it to support Kender's uncorroborated explanation for this in-
consistent conduct , and I place no credence in it International Union, Unit-
ed Automobile, Aerospace, and Agricultural Implement Workers of America
(UA W) [Gyrodyne Co of America] v. N L R B, 459 F 2d 1329 (C.A D C,
1972), 2 Wigmore, Evidence, § 285 (3rd ed, 1940). To the contrary, I find
that the real reason for the Respondent's failure to rehire Stefanski in De-
cember was that which Personnel Manager Pettigrew uncontrovertedly told
him as found above
s All dates hereinafter refer to 1973 unless otherwise noted
9 Grievance No 1037, G C Exh 3
10 Grievance No. 1073, G C Exh 4
u Grievance No 1074, G C Exh 5
INDUSTRIAL BROWNHOIST DIV., AMERICAN HOIST
B. The Current Events on Which the Complaint Herein is
Based
During the period from March 12 to and including April
13 that Stefanski worked for the Respondent as a structural
fitter, his attendance record was perfect.12 According to the
clearance form signed by Foreman Robert Bradfield on
the latter date in connection with Stefanski's termination
for "lack of work," the question "Would you re-employ"
was answered, "Yes."
On July 9, the Union filed its charge in this case in which
it alleged that the Respondent was engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act. The conduct described in the charge as violative of
the Act was the same as that on which the Union had
based its grievance No. 1037, and on which employee
Remholz had based his grievance No. 1073.13
A few weeks after the Union filed its charges, Stefanski
learned that the Respondent had job vacancies and was
advertising for "fitters," and he accordingly went to the
plant and applied to Industrial Relations Manager Paul
Kender for employment.14 According to Stefanski's cred-
ited testimony, he "asked Paul [Kender]" why he wasn't
working, and whether Kender "was angry" with him. Ken-
der replied that he was not angry. Stefanski said, "If you
are not angry, how come I am not working if you have ads
in the paper." Kender responded that
.. . he would like to put me back to work but right
now they have some kind of grievance going on Mr.
Reinholz and Mr. Reinholz had more time than me
[sic] and if they put me back to work that would prove
that Mr. Reinholz's case was correct. Therefore they
couldn't put me back to work.
Stefanski asked "how long" it would be before the issue
was resolved, and Kender replied, "probably two to three
weeks." Stefanski told Kender that he "didn't have any-
thing to do with the filing of the charge" by the Union, and
Kender said that "he knew this."15
Following this meeting with Kender, Stefanski reported
what Kender had told him to Solon Gray, the Union's
president, and based thereon the Union on August 6 filed
an amended charge in the instant case to allege (in addition
to repeating the charges previously made) that the Respon-
dent was violating Section 8(a)(4) of the Act by its refusal
to hire Stefanski "because of his involvement with the La-
12 Resp Exh 4(a)
13 See G C Exh 1(a)
14 Stefanski's best estimate of the date on which he applied was "around
the 18th or 20th, somewhere in there "
15
Kender admitted that Stefanski came to him in July and asked. "Why
am I not back to work?" and he also conceded that he "advised" Stefanski
"that there were other grievances relating to 35 days work , six months rehir-
ing after quits and terminations , and [that] they did involve Mr Reinholz"
Kender testified , however , that he did "not recall telling him [Stefanski] that
we could not put him back to work because of these particular situations."
In the light of Kender's admissions, and his conceded lack of recollection of
the details of this conversation, I do not consider his failure to "recall" as a
denial of Stefanski's testimony which I regard as generally reliable and
credit in these respects
1019
bor Board and his giving of information concerning
Charge No. 7-CA-10467.""6
About 2 weeks later, at one of the regular Wednesday
grievance meetings between the Union and the Respon-
dent , Union President Solon Gray asked Kender , why, in
view of the Company's current hiring of "new people,"17
Stefanski , an experienced employee , was not being called
back. Kender answered , "that there was a grievance pend-
ing on Mr . Reinholz and also that Donald Stefanski was
involved in the Labor Relations charge against American
Hoist."18
C. Concluding Findings
The only issue presented by the complaint in this case is
whether the Respondent's failure and refusal to rehire Ste-
fanski in mid-July, when he applied for reemployment, and
thereafter, was motivated by the pendency of the griev-
ances and unfair labor practice charges which had been
filed against the Respondent and, if so, whether the said
failure and refusal to reemploy Stefanski constitute unfair
labor practices within the meaning of Section 8(a)(1), (3),
and/or (4) or the Act. The basic facts on which this com-
plaint is based are for the most part uncontroverted.
On December 12, 1972, after interviewing Stefanski for
the job of structural fitter and giving him a physical exami-
nation for that job, the Respondent's employment manager
Pettigrew refused to reemploy Stefanski, and told him that
it was because 6 months had not elapsed since his last
employment by Respondent, and that his reemployment
before then could not be permitted because it would allow
him to "regain all [his] Union and seniority rights." Petti-
grew invited Stefanski to reapply after the 6 months period
expired. Thereafter on February 12, 1973, the Union filed a
grievance charging the Respondent "with premeditated
discrimination" for its refusal to hire qualified former em-
ployees until after 6 months had elapsed from the date of
their last employment by Respondent. On March 13, fol-
lowing the expiration of 6 months from Stefanski's last em-
ployment by Respondent and his concomitant loss of se-
niority, he was rehired by the Company to work as a struc-
16 Stefanski was not specifically named in the amended charge However,
as indicated above in the statement of the case, the complaint which later
issued in this case is based solely on the Respondent' s failure and refusal to
reemploy Stefanski, and not on the original charges which also were the
subject of grievances Nos 1037 and 1073 By agreement of the parties,
Reinholz' grievances Nos 1073 and 1074 subsequently were referred to ar-
bitration and were found by the arbitrator to be without merit See Resp
Exh I The Union's grievance No 1037 apparently was not pursued beyond
the third step of the grievance procedure
17 See G C Exh 6
1s
The findings above are based on the uncontroverted and credited testi-
mony of Gray which was corroborated by both Max Leitermann , the chair-
man of the Union's grievance committee, and by Michael Pettigrew, the
Respondent 's employment manager , who testified as a witness for the Com-
pany. On cross-examination , Gray testified that "Kender stated that due to
the involvement of charges filed by the local Union that they could not call
Donald Stefanski back because he was involved in the charge " Leitermann
testified that Kender's response to Gray's inquiry was, "That there were
charges pending-unfair labor practice charges were filed by Stefanski-on
Stefanski " Pettigrew, the Respondent' s witness , testified that an inquiry was
made at this meeting "by Mr. Solon Gray as to why Stefanski was not
rehired, and as I recall it, Paul [Kender] responded in a manner that there
were just National Labor Relations charges against the company concern-
ing Mr Stefanski " Kender did not give any testimony regarding this meet-
ing
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tural fitter. However, on April 13, before the expiration of
his new 35-day period of probation, Stefanski again was
laid off by the Respondent assertedly for "lack of work."
During this past period of employment, Stefanski's atten-
dance record was perfect, and his foreman quite evidently
was satisfied with his work performance, for he noted on
Stefanski's clearance and termination form that he was
willing to reemploy Stefanski.
In mid-July, the Respondent needed and advertised for
employees to work, inter alia, as structural fitters and weld-
ers. These were both jobs which Stefanski previously had
performed for the Respondent, and he accordingly applied
on about July 18 to 20 to Industrial Relations Manager
Kender for reemployment. At the time Stefanski applied
for rehire, the Union's above-described grievance was still
pending and unresolved, and there was also pending and
unresolved the grievance filed by employee Reinholz which
charged the Respondent with terminating probationary
employees just before the completion of their period of
probation and with replacing them with new employees in
order to avoid providing insurance and other fringe bene-
fits for the employees thus terminated. Thereupon, not-
withstanding the Respondent's undisputed need for em-
ployees with Stefanski's prior experience, and his satisfac-
tory performance during his last period of employment, he
was not hired by Kender, but other new employees later
were.19 Moreover, the only reason given to Stefanski by
Kender for not rehiring him was that although "he [Ken-
der] would like to put me back to work," he could not do
so because it "would prove" that the grievances were "cor-
rect." The foregoing record thus persuasively establishes, at
least prima facie, that but for the pendency of the unre-
solved grievances described above, the Respondent would
have rehired Stefanski to fill one of its existing vacancies in
the jobs of structural fitter and/or welder.
At the hearing in this case, Respondent's counsel con-
tended that Stefanski was not rehired in July because "he
had a bad record of attendance," and because "at the time
there were very limited openings and there were applicants
who had superior qualifications." I reject these contentions
as unsupported by the record and as devoid of merit. As
found above, when Stefanski was denied reemployment in
December 1972 as a structural fitter, the only reason given
him for the said refusal was the prematurity of his applica-
tion, and not his attendance record. Stefanski's attendance
record did not deter the Respondent from later hiring Ste-
fanski in March 1973 (after the lapse of 6 months) for the
same job of structural fitter. The Respondent produced no
records, obviously available to it, to support Kender's un-
corroborated testimony that Respondent had a "desperate
need" for structural fitters in March 1973 which did not
exist in December 1972. As previously noted, Stefanski's
attendance record during his last period of employment by
the Respondent from March to April 1973 was perfect. The
Respondent adduced no testimony that the refusal to re-
hire Stefanski when he applied in July 1973 was based on
his attendance record.20 Moreover, the Respondent also
19 See G C Exh 6
20 As previously noted (see fn 7, supra), Kender's testimony regarding
Stefanski's attendance record was offered only to support his discredited
adduced no testimony or other records regarding the quali-
fications of any of the applicants whom the Respondent
hired for the positions of structural fitter and welder in
July 1973, and there is thus no support in the record for the
bare assertion of Respondent's counsel that the refusal to
then rehire Stefanski was motivated by the availability of
applicants with "superior qualifications." Indeed, neither
Kender nor any other witness for Respondent testified that
the refusal to rehire Stefanski was motivated by his having
lesser qualifications than those who were available and
hired. I conclude from all the foregoing that the refusal to
reemploy Stefanski when he applied in July 1973 was not
motivated by his attendance record, or by the availability
of applicants with "superior qualifications," but rather, as
he was told, by the pendency of the above-described unre-
solved grievances of the Union and Reinholz.
It is well established that an employee engages in a pro-
tected concerted activity when he complains about viola-
tions by his employer of the terms of a collective-bargain-
ing contract, and that it is a violation of the Act for an
employer to penalize an employee for making such com-
plaints or for asserting rights under the contract.21 Such
activity, the Board has held, is merely the implementation
and enforcement of the terms of the collective-bargaining
agreement and is therefore "but an extension of the con-
certed activity giving rise to that agreement" which Section
7 of the Act guarantees. 2 The Board has held that the
protected right of an employee to press such a complaint
does not depend on the merit of his grievance, and even the
fact that he may have acted alone is not dispositive of the
question of whether the conduct is protected concerted ac-
tivity within the meaning of Section 7.23 The Board's ratio-
nale on this issue is that complaints within the framework
of the union contract affect all employees, and that, there-
fore, the pressing of such a complaint is a concerted pro-
tected activity.
Under the foregoing principles and precedents, it is ob-
vious that if Stefanski had personally initiated the griev-
ances for whose pendency he was denied reemployment,
the Respondent would thereby have restrained and
coerced him for engaging in union and concerted activities
protected by the Act, and would thus have engaged in un-
fair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act. However, as noted above, the unre-
solved grievances for whose pendency Stefanski was penal-
ized by a refusal to rehire him were filed not by Stefanski,
but by the Union and employee Reinholz. These griev-
ances were, nevertheless, clearly directed toward the elimi-
nation of alleged practices of the Respondent which ad-
versely affected the employment opportunities andjob ten-
ure of Stefanski and other employees similarly situated.
Indeed, the Union's grievance, which charged the Respon-
dent with refusing to rehire qualified former employees un-
explanation for the Respondent's refusal to hire him in December 1972, and
his later reemployment for the same job in March 1973
21 Merlyn Bunney and Clarence Bunney, Partners, c/b/a Bunney Bros Con-
struction Company, 139 NLRB 1516 (1962), New York Trap Rock Corpora-
tion, Nytralete Aggregate Division , 148 NLRB 374 (1964), Interboro Contrac-
tors, Inc, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (C A 2, 1967), Procon,
Incorporated, 161 NLRB 1304 (1966)
22 Bunney Bros, supra at 1519
23 Interboro Contractors, Inc , supra at 1298, fn 7
INDUSTRIAL BROWNHOIST DIV., AMERICAN HOIST 1021
til they had been off the payroll for 6 months and lost their
seniority, was filed in February 1973, shortly after Stefan-
ski had been refused reemployment for that very reason,
and thus appears to have been based on his experience.
Similarly, Reinholz' grievance, filed in April 1973, which
charged the Respondent with replacing probationary em-
ployees with new employees just before the completion of
their probation periods, applied to and affected not only
Reinholz, but also Stefanski and three other probationary
employees, all of whom had just been terminated "alleged-
ly for lack of work," immediately prior to the completion
of their probation periods. Inasmuch as these grievances
were intended to eliminate alleged practices of the Respon-
dent which adversely affected the job tenure and employ-
ment opportunities of Stefanski and other employees simi-
larly situated, they constituted union and protected con-
certed activities on his behalf for which he could no more
be penalized than if he, personally, had initiated the griev-
ances. I therefore conclude that by refusing to reemploy
Stefanski because of the pendency of the said unresolved
grievances, the Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by
the Act, and engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
As indicated hereinbefore, on August 6, after the Re-
spondent refused to rehire Stefanski in mid-July, the Union
filed an amended charge in this case which alleged that the
said refusal also violated Section 8(a)(4) of the Act. As
further found above, about 2 weeks later, at a regular griev-
ance meeting between the Union and representatives of the
Respondent, in response to a question from Union Presi-
dent Gray, Industrial Relations Manager Kender told
Gray that due to Stefanski's "involvement" in the unfair
labor practice charges "filed by the local Union," the Re-
spondent "could not call Donald Stefanski back [to
work]." Kender's response thus clearly discloses and I find
that the Respondent's refusal to reemploy Stefanski was
based also on his "involvement" with the Union's unfair
labor practice charges against the Respondent.
The complaint herein alleges that the failure and refusal
of the Respondent to rehire Stefanski because of the
Union's pending unfair labor practice charges against the
Company constitutes an unfair labor practice within the
meaning of Section 8(a)(4) of the Act. That section pro-
vides in part as follows:
Sec. 8(a) It shall be an unfair labor practice for an
employer-
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given testi-
mony under this Act ... .
It is, of course , undisputed that Stefanski did not file the
unfair labor practice charges in this case , and that when
the Respondent refused to rehire him because of his "in-
volvement" with the Union 's charges , there had been no
hearing in this case , and he had thus given no formal testi-
mony. However, in N.L.R.B. v. Robert Scrivener, d/b/a AA
Electric Company,24 the Supreme Court held that Section
8(a)(4) of the Act intended by Congress to be given a
"broad" construction "to protect the employee during the
investigative stage, as well as in connection with the filing
of a formal charge or the giving of formal testimony."2
Thus construed, I regard the refusal of the Respondent to
rehire Stefanski because of his "involvement" with the
Union's unfair labor practice charges as contrary to the
proscriptions of Section 8(a)(4) as well as Section 8(a)(1) of
the Act. I base this conclusion on the following consider-
ations:
The Union's original charge in this case alleged, inter
alia, that the Respondent violated the Act by refusing to
rehire qualified former employees until they had been off
the payroll for 6 months and lost their seniority. That
charge clearly appears to have been based on information
furnished to the Union by Stefanski after the Respondent
refused to rehire him in December 1972 for that very rea-
son. In addition, as found above, the Union's amended
charge, which added the allegation of violation of Section
8(a)(4), also was based on information furnished by Stefan-
ski to the Union. In the light of the foregoing, and "con-
struing Section 8(a)(4) to protect the employee during the
investigative stage, as well as in connection with the filing
of a formal charge or the giving of formal testimony,"26 I
conclude that by refusing to rehire Stefanski because of his
"involvement" with the Union's unfair labor practice
charges, the Respondent discriminated against Stefanski
because he in effect gave testimony under the Act, and that
it thereby engaged in unfair labor practices within the
meaning of Section 8(a)(4) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
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 relation to trade, traffic and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against
Donald Stefanski by failing and refusing to reemploy him
from about July 18 to 20, 1973, when he applied for rehire,
until November 20, 1973, when it reemployed him, because
of the pendency of, and his involvement in, unresolved
union and employee grievances and unfair labor practice
charges against the Respondent, and having further found
that the Respondent thereby engaged in unfair labor prac-
24 405 U S 117 (1972)
25 td at 121
26 Id
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices within the meaning of Section 8(a)(l), (3), and (4) of
the Act, I will recommend that the Respondent make Ste-
fanski whole for any loss of earnings he may have suffered
by reason of the discrimination by the payment to him of a
sum of money equal to the amount he normally would
have earned from the said date of the refusal to rehire him
to the date of his reinstatement, less his net earnings during
said period, with backpay computed on a quarterly basis in
the manner established by the Board.27
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel re-
cords and reports, and all other records necessary to ana-
lyze and determine the amounts of backpay due under the
terms of this recommended remedy.
27 F W Woolworth Company, 90 NLRB 289 (1950), backpay shall include
the payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716
(1962)
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Industrial Brownhoist Division, Ameri-
can Hoist & Derrick Company, is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 2015, United Steelworkers of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating against Donald Stefanski by failing
and refusing to reemploy him because of the pendency of,
and his involvement in, unresolved union and employee
grievances and unfair labor practice charges against it, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1), and (3), and (4) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]