Dravo Corporation

National Labor Relations Board - Board Decisions

Apr 6, 1981

255 N.L.R.B. 584 (N.L.R.B. 1981)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dravo Corporation, Engineering Works Division and
Robert L. Taylor. Case 6-CA-12988
April 6, 1981
DECISION AND ORDER
On September 10, 1980, Administrative Law
Judge Thomas R. Wilks issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Dravo Corpo-
ration, Engineering Works Division, Neville Island,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in said rec-
ommended Order, except that the attached notice
is substituted 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
WE WILL NOT discourage activities in or on
behalf of Industrial Union of Marine and Ship-
building Workers, Local 61, AFL-CIO, or any
other labor organization, by discriminatorily
refusing to assign to employees light-duty jobs
or any jobs which they can physically perform
or otherwise discriminate against our employ-
ees in any manner with regard to their rates of
pay, wages, hours of employment, hire, or
tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under the Act.
WE WILL offer to Robert L. Taylor a light-
duty job or a job which he is physically able
to perform and make him whole for any loss
255 NLRB No. 78
of earnings he may have suffered by reason of
our discrimination against him, with interest.
DRAVO CORPORATION, ENGINEERING
WORKS DIVISION
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This
case was heard before me on June 6, 1980, at Pittsburgh,
Pennsylvania, pursuant to a complaint and notice of
hearing issued by the Regional Director of Region 6.
The complaint alleges that Dravo Corporation, Engi-
neering Works Division (herein called the Respondent),
has since June 12, 1979, and in September or October
1979, refused to assign its employee Robert L. Taylor to
a light-duty job or to a job that he was physically able to
perform because of Taylor's activities on behalf of the
Industrial Union of Marine and Shipbuilding Workers,
Local 61, AFL-CIO (herein called the Union), and thus
violated Section 8(a)(1) and (3) of the Act. An answer
was filed by the Respondent which denies the commis-
sion of an unfair labor practice. Briefs were filed by the
General Counsel and by the Respondent on or about
July 16, 1980.
Upon the basis of the entire record, my observation of
the witnesses' demeanor, and briefs submitted by the par-
ties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation with a
place of business located at Neville Island, Pennsylvania,
is engaged in the manufacture and nonretail sale of
barges and towboats. During the 12-month period ending
December 1, 1979, the Respondent in the course of its
operations purchased and received goods and materials
valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania for use at its Neville
Island facility.
It is admitted and I find that the Respondent is and has
been at all material times herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
It is admitted and I find that the Union is and has been
at all material times a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent employs about 1,400 bargaining unit
employees who are represented by the Union under a
bargaining relationship that has existed for several dec-
ades. Within its various departments, the Respondent
maintains a "structural shop," to which are assigned
about 350 employees who are engaged in such tasks as
welding, tacking, and fitting in the construction of
I
DRAVO CORPORATION 585
barges. Robert Taylor had been actively employed in the
structural shop in the job classification of "hook on,"
until he sustained a knee injury on April 30, 1976, which
was complicated by phlebitis. Thereafter Taylor received
workers compensation benefits until late summer of 1979,
at which time the workers compensation insurance carri-
er challenged the disabling nature of his condition.
The union leadership maintains about 60 officers in-
cluding a president, one vice president, four grievance
cmmmitteemen, one grievance committee chairman, and
about 25 stewards. Throughout his active employment,
Taylor served in various leadership functions for the
Union. From 1970 to 1974, he served as grievance man
for the structural shop. From 1970 to 1972 and from
1972 to 1974 he was the grievance committee chairman.
As a grievance comitteeman Taylor processed grievances
before the Respondent's department superintendent. He
processed an average of five to seven grievances month-
ly. As committee chairman he processed all grievances
from the third step of the contractual grievance proce-
dure through to final disposition. At the third step he
processed grievances to the Respondent's industrial rela-
tions department of which the manager was Henry R.
Brown. At that level he processed 10 to 20 grievances.
Additionally, Taylor served with two other union offi-
cers on a committee which determined which grievances
were to proceed to arbitration. Approximately 10-15
grievances proceeded to arbitration monthly.
From 1975 to April 30, 1976, Taylor was the Union's
vice president. During that time he served on various
committees, one of which was the safety committee. As
a safety committeeman, he investigated employee safety
complaints during and after his work shift. During eve-
ning hours he made investigative visits to the plant in the
company of a security guard.' Taylor filed five com-
plaints with the Occupational Safety and Health Admin-
istration (OSHA). He accompanied OSHA agents during
10 plant inspections and he participated in meetings be-
tween those agents and Respondent's representatives. At
those meetings the safety hazards were discussed and the
Respondent's agents were asked for explanations as to
why certain conditions had not been rectified. In refer-
ence to those OSHA inspections, it is Taylor's uncontra-
dicted and therefore credited testimony that Manufactur-
ing Manager Peter Kurlick complained to Taylor that
the OSHA inspections were "going to put him out of
business" and said "it didn't look good for business,
OSHA always coming down to Dravo." 2
The collective-bargaining agreement permits union of-
ficials to engage in union business during their working
hours. Taylor spent more time away in union business
than did any other union representative, except the union
president who elected to take a leave of absence. Taylor
was absent from his work duties and engaged in union
business 50 percent of his working hours. In prior years,
I Other safety committee members were accompanied by a guard. I do
not conclude, without more, that the mere assignment of a plant guard
escort is evidence of disparate treatment of Taylor, or hostility to him.
2 Kurlick's managerial status is not alleged in the complaint but as the
plant manager and the official who represented Respondent in the OSHA
confrontations, and in safety confrontations with the Union, his agency
status is clear.
certain jobs were not assigned to him because of his fre-
quent engagement in union business. Taylor's own testi-
mony is unchallenged that unlike other grievance com-
mitteemen he became more involved in processing griev-
ances in that, for example, he spent considerable time in-
vestigating grievances. Industrial Relations Manager
Brown conceded that the number of arbitration cases
processed increased for a period of time commencing in
1972 and testified: "For a period of time we had some
problems, troubles, some wildcats, and there were a
higher number of grievances than either before, or let's
say, in the present situation." Brown testified that he had
"a lot of dealings" with Taylor as a grievance comittee-
man. When asked whether he considered Taylor's de-
meanor particularly different from that of other union of-
ficials he answered: "I wouldn't say so. He was a good
dedicated union official."
There is no evidence that the Respondent has in the
past systematically or individually discriminated against
any union official, nor manifested any hostility to any
employee because of union activities. After a wildcat
strike which did not involve Taylor, pursuant to a settle-
ment with the Union, the leaders of that work stoppage
were reinstated. Union officers were accommodated with
respect to the assignment of light duty or restricted work
assignments. However, despite Brown's initial genial and
benign characterization of Taylor as a typical "good
dedicated union official," he revealed in subsequent
cross-examination and redirect examination, despite pro-
testations to the contrary, a deep-seated hostility toward
the manner in which Taylor engaged in his union func-
tions and it is evident by his own testimony that he did
not consider Taylor as merely 1 of 60 union officers. At
first Brown testified that Taylor "spent a good deal of
time" on union business which he declined to character-
ize as "excessive," and which he said did not "bother"
him, and that he did not "care one way or the other"
and that Taylor's time spent in union business did not
affect Brown's judgment of him as an employee. Yet
Brown testified that he considered Taylor was "getting
away with murder" with respect to the amount of time
spent on union business. He admitted stating in an inves-
tigative interview that: "Taylor got away with murder
because he was a union officer." On redirect examination
he testified:
Well, in my personal opinion, I will say this, as I
said earlier, Bob [Taylor] did a good job as a union
official. I've said it before and, I'll say it now. It
just [sic]-too damn much time doing it, and it was
common knowledge, not only by me, but by other
people. One, supervision; two, people that saw him;
and three, I'm sure, the members who he represent-
ed because it was common knowledge . . . he was
never in the plant .... He spent an awful lot of
time standing around my office, out in the halls,
down the road, and everyplace else, and I think he
left early, a number of times.
When asked "did this have anything to do with his union
business as such," Brown answered without explanation
and simply replied: "Indeterminate."
DRAVO CORPORATION 85
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown's demeanor when testifying as to the foregoing
reference to the time spent by Taylor in union business,
manifested a stridency, scorn, and contempt of uncom-
mon dimensions.
Taylor was never reprimanded for spending excessive
time on union business. There is no evidence that he was
ever criticized for abusing his contractual privileges, nor
is there any evidence that he was informed by any Re-
spondent representative that he was improperly utilizing
his worktime. Brown gave no further explanation for his
conclusions. No evidence was submitted to demonstrate
that Taylor soldiered when he engaged in union duties,
or at any other time, save for the generalized testimony
that he was not "aggressive" in his attitude toward his
work. I therefore must conclude that Taylor became the
object of Brown's enmity because he availed himself of
his contractual privilege to engage in union business
during working hours to a degree which Brown consid-
ered was excessive but which was not shown to be abu-
sive or unnecessary. Thus Taylor engaged in union busi-
ness as did other union representatives, but he did so to a
greater extent. Brown's testimony thus corroborates Tay-
lor's self-characterization that he was more thorough and
more investigative in processing grievances than any
other union representative. Clearly he aroused the wrath
of Brown by engaging in union duties to such an extent,
as he had displeased the plant manager by filing OSHA
complaints.
On April 30, 1976, while engaged in work duties,
Taylor sustained a knee injury. Thereafter he submitted
to surgery. He was also treated for phlebitis. He experi-
enced at least two periods of hospitalization, and re-
mained under the care of his personal physician, Dr.
Ronald G. Mehock, whose periodic reports kept the Re-
spondent informed of his condition. Taylor received
workers compensation benefits. In late 1977 Brown was
advised that because of the threat of embolism Taylor
could not return to any job involving kneeling, squatting,
or climbing. Respondent was informed by Dr. Mehock
that Taylor's return to his old job was not foreseeable.
By the middle of 1978 Taylor did not return to his job.
At that time he made arrangements with Brown where-
by he was permitted to retain his seniority and other
benefits in the event he found rehabilitative employment
with another employer. Taylor conceded that other em-
ployees in similar positions had encountered difficulties
in obtaining reemployment with the Respondent after
having taken outside employment. Brown testified that
he accommodated only one other such request. By Janu-
ary 1979, Taylor was still unemployed. Respondent's
answer avers, inter alia, "Mr. Taylor has been allegedly
disabled since 1976. He has recurrently since then re-
quested light duty."
Light duty assignments have historically consisted of
such tasks as semiclerical paperwork, and cleanup main-
tenance work which were initiated by the Respondent's
medical department and the employees' departmental su-
pervisor for the purpose of retaining an injured or sick
employee on active duty status despite a physical disabil-
ity which precluded performance of the employee's
normal work tasks. The object of such assignment was to
reduce the Respondent's statistical record of time lost
due to accidents or illness. The lightduty assignment was
temporary and the employee was expected to return
shortly to normal duties. While on light duty the em-
ployee was paid the contractual wage rate that he had
been paid for performance of his regular job. Prior to
1979, no disabled employee who had been disabled to the
extent that he had left active duty status was ever re-
called from workers compensation or other disabled
status for the purpose of performing light duty. In the
jargon of the shop light duty was used to keep an injured
worker from going "out the door," but not used to bring
a disabled worker in "off the street."
Restricted duty consisted of placing a disabled worker
on a job within his classification but restricting his func-
tions to conform to medical requirements. This also was
initiated by management.s The Respondent also assigned
injured or ill employees to other classifications to per-
form duties, which unlike their regular job, could be per-
formed within the framework of their medical restric-
tions. Movement to such jobs was dependent on their se-
niority status. Brown testified that such assignment was
not considered to constitute restricted duty. In any event
like light duty, and restricted duty, such arrangements
depended on the availability of such work and the man-
ageability of execution. The Respondent retained com-
plete control and discretion with respect to light duty
and restricted duty. Transfer to another job for medical
reasons is discretionary but subject to seniority factors.
The employee has no contractual right to light duty or
restricted duty. According to Brown the Respondent ini-
tiated the assignment, not the employee, and in those
cases where the employee had refused light duty or re-
stricted work they were denied workers compensation
benefits.
Brown testified that the number of employees engaged
in light duty at any one time ranged from 10-20 employ-
ees. He testified that only 20-25 percent of employees
who "wanted" light duty were able to be accommodated
by what was available, and that the same percentages ap-
plied to restricted duty depending upon the job classifi-
cation; i.e., the criteria is: "What can the employee do
and what is available." Brown did not explain how the
employees' "wants" are relevant, in view of his testimo-
ny that it is management's judgment to initiate the as-
signment, and that the loss of workers compensation fol-
lows a refusal of such assignment.
Respondent's workers compensation claims manager,
James Dorrance, testified that during the first half of
1979 there were approximately 75 to 80 employees away
from active duty because of disabling injuries or illness.
He further testified that of 75 disabled workers absent
from duty only 20 to 25 were able to perform light duty,
if it was available. Although Brown's estimates seem
somewhat inflated in light of Dorrance's testimony, it
does appear that there were more candidates or pros-
pects for light-duty assignment than there were such po-
sitions. Since light duty was assigned to prevent a
worker from "going out the door," the positions were
filled leaving relatively little available for those "out the
3 At some time prior to the hearing the Respondent eliminated all light
duty work for stated economic reasons. It still maintains restricted duty.
DRAVO CORPORATION 587
door." The situation with respect to restricted-duty po-
tential is not quite as clear, although Brown's testimony
remained unchallenged.
Taylor testified that on several occasions prior to June
12, 1979 (the commencement of the 6-month 10(b) period
proceding the charge filing) he personally requested that
Brown reemploy him in active duty in light duty assign-
ments or in any job that he could perform given his re-
strictions. Taylor conceded that he did not explicitly ask
for restricted duty in the hook classification. Brown testi-
fied that he had suggested that Taylor take restricted
duty within his old classification of hook on. Structural
Shop Superintendent Toby Croyle testified that he was
questioned by Respondent's medical department, prob-
ably in 1979, several times as to whether he had restrict-
ed duty available for Taylor and that he responded affir-
matively assuming that the restrictions apply to kneeling,
squatting, bending, climbing, and assuming that all other
functions are normal. Croyle testified that such positions
are still available to Taylor. Brown testified that when
he offered Taylor restricted hook-on duty, Taylor
merely responded that he would "think about it," but
that he never agreed to take such work. Taylor testified
that Brown never offered him restricted duty within his
old classification. I credit Taylor. He was the far more
certain witness. Furthermore, it was not Respondent's
policy to permit employees to decline restricted duty and
yet retain workers compensation benefits, which Taylor
retained until August 1979 when they were terminated
for other reasons.
Taylor testified without contradiction and credibly
that in January 1979 he engaged in a conversation with
Brown wherein Brown told him that the Respondent
was considering instituting a new position, that of tool-
room attendant and that would be the "best place" for
Taylor. However, Taylor heard nothing further about
that job. Union Officer Wes Boyko testified that in Janu-
ary 1979 he engaged in a conversation with Brown after
Boyko had noticed a posting for a new position of tool-
room attendant. Boyko testified credibly and without
contradiction that he asked Brown whether the toolroom
attendant job could be assigned to Taylor, and that
Brown responded: "Wes, let me put it this way, the
higher ups don't want Bob back, that's it." Despite the
significance of such a statement Brown could not recall
the conversation. I credit Boyko. A new employee was
hired for that job in March and others also subsequent to
June 12, 1979.
In early 1979, Brown suggested that Taylor return to
his old job without restriction. Taylor refused. Respond-
ent's own medical department consistently agreed with
Dr. Mehock's evaluation that restrictions were essential.
Brown was aware of the opinions of his own medical de-
partment. Indeed, Respondent takes the position that
Taylor's condition according to the medical reports was
static; i.e., there was no foreseeable recovery date. Clear-
ly Brown must have expected a rejection of such an
offer. During early 1979, Brown offered the job of bend-
ing machine operator to Taylor but without restrictions.
Taylor refused inasmuch as that job fell within the same
classification of hook on and entailed bending, climbing,
pushing, and extended walking functions. Although there
has been some modification of that job by the augmented
use of cranes to assist the worker at an unspecified date
subsequent to Taylor's injury, Taylor's testimonial de-
scription of the job as it existed when he worked there
and as he understood it existed in early 1979 is not con-
tradicted. Nor is Taylor's description of the hook-on job
effectively contradicted with respect to the necessity to
perform functions medically restricted. Under these cir-
cumstances, it is unreasonable that Brown should have
expected Taylor to accept the bending machine job with-
out restrictions. Thus, it was an offer made with the cer-
tainty that it would be rejected.
In January 1979, the Respondent instituted a canteen
operation which the union had been requesting for some
years. The Respondent decided that it could accommo-
date the Union's request and simultaneously create more
lightduty assignments. Gradually four canteens were put
into service and were used for light duty until April 1980
at which time they commenced being staffed by cafeteria
employees for purported economic reasons and because,
according to Brown, of occasions of abuse. Between 30
to 40 employees were utilized over the entire period of
that light duty canteen program. Brown testified that
several employees were utilized when only one was
needed at one post, and thus it became overstaffed. It
would appear that at any one time there were 8 to 12
employees assigned light duty at the four canteens.
In September or October of 1979 Taylor engaged in a
conversation with Brown in his plant office concerning
an assignment to a canteen job. Brown recalled that in
the fall Taylor did engage him in such a conversation
but he could not recall what was said but that he gave a
negative response. Taylor testified credibly and without
contradiction that, when he asked for the canteen assign-
ment, Brown got up, closed the office door, and said:
[D]amn it Bob, to be truthful about the thing I'd
like to see you come back, but my hands are tied,
there's somebody higher than me that doesn't want
you back.
Taylor responded as follows: "Hank, that's no way of
looking at it. I was elected to do a job and I did it."
Brown answered:
I understand, I know there was times you were
pressured into doing things that maybe you didn't
want to do, but that's it.
Taylor said "OK" and left. Thus Brown confirmed Tay-
lor's accusation that he was denied reemployment to a
job that he could perform because of his engagement in
union activity.
Taylor testified that the following job classifications
involve little or no physical functions that conflict with
his medical restrictions: timekeeper, janitor, and checker
adjustor. Brown conceded that subsequent to June 12,
1979, new employees were hired for all of those posi-
tions. Brown testified that the janitor's duties involve a
great deal of walking, mopping, snow shoveling and fur-
niture moving and that Taylor's restrictions precluded
him from such duties. As to the timekeeper's job he
DRAVO CORPORATION 87
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely testified that it was not classified as a "light
duty" job. He was silent as to the checker adjustor job.
Brown testified that although he could not recall what
was said, he did have a conversation with Taylor where-
in Taylor requested the toolroom attendant assignment
upon becoming aware of the new job opening. Brown
testified that he thereafter discussed the possibility of as-
signing Taylor to this job with the toolroom supervisors
but was told that they would not accept Taylor because:
"They felt he was not the type of individual they wanted
in that job, due to the fact that there was a good deal of
valuable equipment [and] they did not feel he was the
employee they would choose to put in there." Brown
testified that the second reason Taylor was deemed unsa-
tisfactory for the toolroom attendant job was that his
medical restrictions would interfere with his ability to lift
and place onto the storage shelves machinery of weights
up to 100 pounds. Brown did not explain why he had
previously offered to reemploy Brown on a trial basis to
the hook-on job without restriction, and to the bending
machine job without restriction, and yet not reemploy
Taylor on a trial basis as a toolroom attendant.
In further direct examination Brown testified that
Taylor did not follow contractual procedure in bidding
for the toolroom job or other jobs in that he did not
reduce his request to a written form. In cross-examina-
tion he testified that it would have been remiss of him to
place an employee on the basis of an oral request. Brown
did not explain why he had acted on Taylor's oral re-
quest for the toolroom job in the first place. His initial
testimony suggests that he entertained Taylor's reem-
ployment request and that it was turned down for the
foregoing reasons advanced by the toolroom supervisors.
The reference to the procedural matter, I conclude, was
a mere afterthought.
On cross-examination Brown testified that in March he
hired a new employee of moderate height and normal
female physique as a toolroom attendant. He also ex-
panded on the reasons why he did not reemploy Taylor
as a toolroom attendant or in other classifications. He
testified that Taylor inquired about several jobs but that
he had never made a "full attempt" to return to work.
He explained that Taylor had never returned "to get
evaluated to see what the heck he could do." There was
no explanation of just what more was expected of
Taylor, or what more than medical reports were re-
quired. Indeed, as noted above, Taylor was not even of-
fered the toolroom job on a trial basis. On cross-examina-
tion Brown conceded that Taylor had not engaged in
thievery but asserted without explanation that Taylor
was not "honest" in personal dealings with Brown.
Other than pursuing his union duties, there is no evi-
dence that Taylor had other dealings with Brown. How-
ever, Brown quickly abandoned the dishonesty accusa-
tion and asserted that Taylor's "work ethic" was "not
very good," and that he was not known by supervisors
as a "good hard worker." Brown asserted that the pos-
session of a good work ethic has a "great deal to do"
with employee placement, and that Taylor's deficiency in
that regard was one reason for his prior reemployment in
the toolroom attendant job or other classification.
Structural Shop Superintendent Toby Croyle testified
that Taylor was below average with respect to "aggres-
siveness," and that the jobs involved were "incentive"
jobs; i.e., pay was geared to productivity. However,
Croyle admitted that he was not Taylor's immediate su-
pervisor when Taylor worked as hook-on in the structur-
al shop and he did not regularly assign work to Taylor.
Croyle made no reference to thievery or dishonesty. The
toolroom supervisors did not testify. As stated above,
Taylor had not been reprimanded since 1968. There was
no evidence submitted that he was ever reprimanded or
ever criticized for low productivity, or ever accused of
dishonesty. Taylor testified on rebuttal, without contra-
diction, that his average weekly incentive bonus exceed-
ed the average incentive bonus of other hook-on employ-
ees. I conclude that there is no evidentiary basis for
Brown's generalized characterization concerning Tay-
lor's work ethic or personal honesty.
With respect to the failure to reemploy Taylor in light
duty assignments, Brown's testimony and Dorrance's tes-
timony that prior to the canteen progYam it was Re-
spondent's policy not to recall disabled workers is un-
challenged. However, when the canteen operation start-
ed, certain exceptions were made and three disabled
workers were recalled: Anderson, Edwards, and Owens.
Brown testified that Taylor was not considered for recall
to the canteen because his medical condition was static,
i.e., there was no prognosis of improvement in the ab-
sence of additional surgery which was not contemplated
at the time by Taylor. Brown testified that Anderson,
Edwards, and Owens were recalled on the request of
Dorrance and the medical department because of their
opinion that these individuals had made medical progress
and a return to light duty would accelerate rehabilitation
to their regular duties. Dorrance gave a different expla-
nation.
Dorrance testified that since 1976 he has served as the
intermediary between Respondent's medical department,
the workers compensation insurance carrier, and the job
department superintendent with respect to formulation of
a decision to assign restricted or light duty to disabled
employees. He testified that he decided that Anderson,
Edwards, and Owens were candidates for the canteen
program after he had reviewed their medical records.
Thus he initiated their assigmments to light duty. They
did not. Unlike Anderson, Edwards, and Croyle, Taylor
requested of Brown such assignment.
Dorrance testified that he did not consider Taylor be-
cause no one had requested him to, and because he was
aware of Taylor's medical restrictions which appeared to
be permanent. Dorrance testified that he had contemplat-
ed that the canteen assignment would be of short dura-
tion and that it would be closely monitored to prevent
malingering. He testified in direct examination that An-
derson's medical reports revealed that he had injured his
back in 1978, was hospitalized and treated by an orthope-
dic surgeon who had concluded that little more could be
done for him medically. He testified that Edwards and
Owens had also sustained back injuries. Owens submitted
to surgery twice. On cross-examination Dorrance testi-
fied that Anderson had come to his attention as a result
DRAVO CORPORATION 589
of an examination of his medical report. After he re-
viewed that report he attempted to obtain restricted duty
for Anderson but none was available in his old depart-
ment. He then decided to use him in the canteen. Dor-
rance testified again in general terms that his reading of
Edwards' and Owens' medical reports indicated that it
would be worthwhile to attempt their rehabilitation in
the canteen. He testified that he first attempted to obtain
a foreman's job for Owens, or a job in another classifica-
tion but none was available. Apparently he ignored the
bidding procedures. Upon further cross-examination
Dorrance testified that it was his opinion that Anderson's
medical reports did not contain enough substantiation of
disability to prevent his return to his regular job. He
then testified that he also doubted the claimed extent of
Edwards' disability. Finally he testified that both Ander-
son's and Edwards' files indicated little if any disability.
Accordingly he advised them that they would be closely
monitored in the canteen job. However, with respect to
Owens he testified that the medical reports revealed that
Owens would never be able to return to his regular job
and that permanent arrangements had to be made to pro-
vide Owens with a sedentary position. Dorrance testified
that he discussed Owens' lightduty assignment with
Brown because of that very medical report. Apparently
Dorrance did not doubt those reports, as he attempted to
find permanent work in other classifications for Owens.
Inexplicably, however, Dorrance decided to recall
Owens to the canteen job. He made no effort to distin-
guish the permanence of Owens' injury from the perma-
nence of Taylor's disability.4 Thus Dorrance sought light
duty and restricted duty assignments for three disabled
workers who did not request such assignment, on the
grounds that he doubted the validity of the medical re-
ports of two of them, but for no understandable reason
for the third.
Despite Dorrance's intent to employ all canteen work-
ers on a short-term closely monitored basis, Anderson
was utilized there for 9 or 10 months and Edwards for 4
or 6 months until the program ended. Owens worked in
the canteen job for 2 months until the program ceased.
Owens was returned to disabled status. Eventually, An-
derson returned to his old job with restrictions. Ed-
wards' ultimate position is not clear.
Brown was involved in the institution of the canteen
program. Brown testified that Dorrance was accommo-
dated as to Edwards, Anderson, and Owens. Dorrance
testified that he discussed Owens' static condition with
Brown. Dorrance testified that he doubted the medical
reports of Edwards and Anderson. Brown testified those
disabled employees who were recalled because of Dor-
rance's recommendations were recalled because all of
them were in nonstatic medical status and had shown
signs of progress. Brown was silent as to Owens' static
condition and silent as to any suspicion of malingering.
4 He did not testify that he doubted the medical reports of Taylor. It
was not until August 1979 that he was notified that a physician employed
by the insurance carrier concluded that Taylor was able to return to
normal duties. However. Respondent's on medical department con-
curred in the opinion of Dr. Mehock that Taylor was indeed disabled.
Brown testified that in light of the medical disagreement, he took no
steps to discharge Taylor for failure to report to his normal duties, al-
though the wsorkers compensation benefits ceased in August.
Clearly, however, Brown made no suggestion to Dor-
rance that he also consider utilizing Taylor who had re-
quested light duty. Thus the testimony of Brown and
Dorrance is mutually inconsistent, internally inconsistent,
in part contradictory, and in part inexplicable.
Conclusions
Respondent contends that the Charging Party is not
entitled to preferential treatment because of his status of
a union officer. Respondent argues that there is no dem-
onstration of antiunion bias, and that Taylor was not
denied re-employment on light duty or other duty of a
restricted nature because of his union activities. It sub-
mits that Taylor was treated like most other disabled
workers and that no exception was made to provide him
with light or restricted duty because of the limited
amount of such work available and because of the static
nature of his condition. The Respondent appears to aban-
don the position set forth in its answer that Taylor was
not actually disabled inasmuch as the record evidence re-
veals that the Respondent at no time rejected the conclu-
sion of its own medical experts that Taylor was indeed
disabled.
The General Counsel argues that preferential treat-
ment is not sought for the Charging Party, but rather
contends that Taylor was denied light duty or other
work which he could have performed because of his
union activities. The General Counsel concedes that the
evidence reveals no hostility of the Respondent against
union activities in general. Indeed the record fully sup-
ports the Respondent's contention that many union offi-
cers were among those disabled workers who had over
the years received lightduty or restricted duty assign-
ments. However, the General Counsel argues that Taylor
was discriminated against because of his individual ef-
forts as a union officer and that he was denied the afore-
described work, in whole or in part, because of those ef-
forts.
The foregoing findings of fact establish that Taylor
had been engaged in union activities to such an extent
that it necessitated his absence from his work station for
half his working time. He was dedicated and thorough in
the execution of those duties. Under the collective-bar-
gaining agreement, and by practice, union officers were
permitted to engage in union duties during working
hours. Because of the frequency of his departures from
his duty station, Taylor was not assigned certain job
functions. The credited and uncontradicted evidence es-
tablishes that the industrial relations manager, Brown, in
effect told Taylor after he had requested light duty or
any work that he could perform, that the Respondent
did not want to reemploy him because of the manner in
which he had executed his duties of union officer.
Brown's testimony revealed a pervasive and deep-seated
hostility to Taylor resulting from the way Taylor con-
ducted his union affairs, i.e., the amount of time utilized
in union business. Against this background of hostility
toward Taylor premised upon his individual union activi-
ties, Respondent's proffered reasons for the nonassign-
ment of the requested work must be evaluated.
DRAVO CORPORATION
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Shattuck Denn Mining Corporation (Iron King
Branch), 362 F.2d 466, 470 (9th Cir. 1966), the court
stated:
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required to
be any more naif than is a judge. If he finds that the
stated motive for a discharge is false, he certainly
can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at
least where, as in this case, the surrounding facts
tend to reinforce that inference.
In the instant case, the Respondent proffered testimo-
ny as to the reasons for the nonassignment of light, re-
stricted, or other duty Taylor was able to perform,
which was inconsistent and in part contradictory. The
reasons advanced, particularly by Brown in his testimo-
ny, shifted from nonavailability of work to objections to
Taylor's honesty, then to objections to his work ethic
and thence to objections to the failure to follow ministe-
rial bidding procedures. The reasons advanced for the se-
lection of other disabled employees, who did not seek
such work, and the nonselection of Taylor, who explicit-
ly requested it, shifted from the contention that their
physical condition evidenced a prognosis of foreseeable
recovery, to a contention that they were malingerers, to
an apparent contention that one of them, Owens, was se-
lected not only as a candidate for indefinite light duty
but as a candidate for other permanent work he could
perform inasmuch as he possessed a hopelessly static dis-
ability which required a completely sedentary position.
At one point it was testified that no light or restricted
duty or other duties were assigned to Taylor because he
had not requested it nor had followed bidding proce-
dures. At another point, it was testified that the Re-
spondent takes the initiative in the assignment of such
work and not the employee, as indeed Dorrance took the
initiative with respect to the possibility of placing Owens
in other classifications or in restricted duty, or ultimately
in light duty. At one point it was explained that the can-
teen assignments were intended to be temporary, of short
duration, closely monitored, and a stepping stone to re-
habilitation. Yet disabled employees were engaged in
that work for extensive periods of time and with respect
to Owens, there was no expectation of rehabilitation. It
was contended that no work was available for Taylor to
perform. However, there was restricted duty available to
him as a hook on, which I found above, was not offered
to him. Also as noted above new employees were hired
into classifications for which Taylor could have been uti-
lized, at the very least on a trial basis.
I conclude that the reasons advanced by the Respond-
ent for the nonselection of Taylor for light, restricted, or
other duty he could perform was false and pretextuous. I
infer that the true and only motivation that guided Re-
spondent was its hostility to Taylor's performance of his
union duties. I reject the Respondent's argument that, as-
suming an unlawful motivation, a lawful motivation co-
existed, and that it cannot be concluded that but for Tay-
lor's protected activity he would have been assigned the
requested work. I have found Respondent's proffered
motivations false and pretextuous. Accordingly, I do not
construe this to be a fixed motivation case as was consid-
ered by the court in Coletti's Furniture, Inc., 550 F.2d
1292 (Ist Cir. 1977), and upon which case Respondent
relies. Cf. Howard Johnson Company, 242 NLRB 386
(1979).
The Respondent argues that a motivation based on a
hostility to Taylor's abusive performance of his union
duties is not an unlawful motivation. However, there is
nothing in this record upon which I can conclude that
Taylor's use of time was in fact abusive or unjustified,
except for Brown's unfounded characterizations. What-
ever probative value Brown's subjective and conclusion-
ary testimony might have had was totally negated by his
lack of credibility as a witness. Assuming that the Re-
spondent entertained a good-faith belief that Taylor had
engaged in his union duties in an abusive manner (an as-
sumption that is impossible in light of Brown's lack of
candor as a witness), such a good-faith but erroneous
belief does not render lawful discriminatory conduct pre-
mised thereon. In N.L.R.B. v. Burnup & Sims, Inc., 379
U.S. 21, 23 (1964), the Court held:
In sum, §8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was
such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and
that the employee was not, in fact, guilty of that
misconduct.
The Burnup rule has been applied in varying contexts.
See, e.g., Allied Industrial Workers, Local No. 289 v.
N.L.R.B., 476 F.2d 868, 878-880 (D.C. Cir. 1973) (strike
activity); N.L.R.B. v. Clinton Packing Co., Inc., 468 F.2d
953, 954-955 (8th Cir. 1972) (mistaken belief of slow-
down while employees were engaged in union activities);
Kayser-Roth Hosiery Company, Inc. v. N.L.R.B., 447 F.2d
396, 400 (6th Cir. 1971) (picket line conduct); N.L.R.B.
v. Orleans Mfg. Co., 412 F.2d 94, 98 (2d Cir. 1969)
(union soliciting); Shattuck Denn Mining Corp., supra
(strike activity).
I conclude that the Respondent did not demonstrate a
good-faith belief that Taylor had engaged in misconduct
in the performance of his union duties. I conclude that
the Respondent on and after June 12, 1979, refused to
assign Taylor to light duty or other work which he was
capable of performing because of his past vigorous and
extensive engagement in union activities and therefore
violated Section 8(a)(3) and (1) of the Act.5
I Inasmuch as such conduct occurred within 6 months of the filing of
Ihe charge. I do not find the matter barred by Sec. I(}h) of the Act as
Conlintued
DRAVO CORPORATION 591
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(3) and (1)
of the Act on or about June 12, 1979, and thereafter by
refusing to assign its employee Robert L. Taylor to a
light duty job or to a job he physically could perform
because of his activities as an officer of the Union on
behalf of the Union in order to discourage employees
from engaging in similar activities.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in an
unfair labor practice, I recommend that it be required to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent discrimina-
torily refused to assign Robert L. Taylor to a lightduty
job or to a job he physically could perform, in violation
of Section 8(a)(3) and () of the Act, I shall recommend
that Respondent be ordered to offer him light duty work
or work he can physically perform and make him whole
for any loss of earnings suffered by reason of the dis-
crimination against him as found herein with interest
thereon to be computed in the manner prescribed in F.
W Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).6
Upon the basis of the entire record, the findings of fact
and conclusions of law and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER7
The Respondent, Dravo Corporation, Engineering
Works Division, Neville Island, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall:
averred in Respondent's answer. That defense was not raised at hearing
but argued in the brief.
6 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings. conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
1. Cease and desist from:
(a) Discouraging activities in or on behalf of Industrial
Union of Marine and Shipbuilding Workers, Local 61,
AFL-CIO, or any other labor organization, by discri-
minatorily refusing to assign light duty jobs or any other
jobs which they can physically perform or otherwise dis-
criminating against them in any manner with regard to
their rates of pay, wages, hours of employment, hire, or
tenure of employment, or any term or condition of their
employment.
(b) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Robert L. Taylor a light duty job or a job
which he is physically able to perform and make him
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Upon request, make available to the Board or its
agents, for examination and copying, all payroll and
other records necessary to a determination of the back-
pay due under the terms of this Order.
(c) Post at its Neville Island, Pennsylvania, place of
business copies of the attached notice marked "Appen-
dix."8 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed
by Respondent's representatives, shall be posted by Re-
spondent immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
" In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
DRAVO CORPORATION 91
A_ .