Ebasco Services, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1970

181 N.L.R.B. 768 (N.L.R.B. 1970)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ebasco Services , Incorporated and Buford J. Mook.
Case l7-CA-3930
March 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 18, 1969, Trial Examiner Eugene
F. Frey issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent , Ebasco Services,
Incorporated , Kansas City, Missouri , its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner ' s Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner : The issue in this
case, which was tried before me at Kansas City, Missouri,
on September 11, 1969, with General Counsel of the
Board and the above Respondent appearing by counsel,
and Buford J. Mook , the Charging Party, appearing
personally , is whether or not Respondent unlawfully
threatened Mook and three other employees with
demotion , and actually demoted them , from foremen to
journey-electricians because of their announced intent to
appear , and actual attendance, at a grievance hearing
before the Employment Stabilization Board (herein called
ESB) established by an agreement made between
Respondent (acting through National Electrical
Contractors Association , herein called NECA ) and Local
Union No. 124, International Brotherhood of Electrical
Workers (herein called the Union); and by such conduct
coerced employees in exercise of rights guaranteed by the
Act. At close of the testimony decision was reserved on a
motion of Respondent to dismiss the complaint on the
merits, that motion is disposed of by my findings and
conclusions in this Decision All parties waived oral
argument, but written briefs submitted by General
Counsel and Respondent have been duly considered
Upon the entire record in the case and from my
observation of the witnesses on the stand, I make the
following-
FINDINGS OF FACT
1. JURISDICTION OF THE CASE, AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a New York corporation engaged as
general contractor in the construction of a turbine
generator at a power plant of Kansas City Power & Light
Company, known as the Hawthorne. Station Project
(called herein "the project") and located in Kansas City,
Missouri. In the 12 months preceding its operations at
said project, Respondent had direct inflow of goods,
products, and materials from points outside the State of
Missouri valued in excess of $50,000. I find Respondent is
now, and at all times material has been, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background Events
At all material times herein, Respondent and the Union
have been operating under a contract covering members of
the Union employed by Respondent at the project. Article
I of Addendum No. I to that contract sets forth a
grievance procedure for the handling of grievances
concerning the interpretation and application of the
Employment Stabilization System set up by the
Addendum , in which the second step is submission of the
grievance in writing to ESB , whose decision on the
grievance is final Among other duties, ESB has power to
hold hearings on grievances and to 'request the parties to
submit evidence thereon. There is no proof that ESB has
power to compel appearance of parties or witnesses at-its
hearings on grievances
On or about April 10, 1969, Respondent discharged 40
electricians employed at the project for alleged poor
production. Thirty-seven of them filed grievances under
the grievance procedure, which were investigated jointly
by representatives of NECA and the Union, who
questioned Mook and five other foremen, including
Michael W Shine , Lloyd G. Brown and Kenneth L.
Troutwine , at the project regarding the grievances between
the time they were filed and May 23 , 1969. During the
investigation the ESB agents apparently took notes when
questioning the foremen, but not sworn or unsworn
written statements ESB fixed May 23 for a formal
hearing on the grievances , and shortly before May 22
Mook and Brown received letters from the
Administrator - Secretary of ESB , requesting their
appearance before ESB at 9 a.m on the 23rd, and saying
181 NLRB No. 117
EBASCO SERVICES, INC 769
"your cooperation will be greatly appreciated by the
Board "
Contentions of the Parties, and Conclusions on the
Facts
B. The Demotions
On the afternoon of May 22, Rolland C. Root, project
superintendent, called the six electrical foremen, including
the four named above, and two general foremen together
He mentioned the hearing scheduled for the 23rd and told
them that they did not have to attend because "all the
statements have been made," he thought he had given the
ESB representatives enough time on the job to collect the
evidence, that the 23rd was a workday, and if the present
foremen were not on the job, he could not operate,
because under the contract the electrical contractor had to
have foremen on the job if he was to do any work, and it
would not be for the good of the employer for them to go
He also said that if any of the foremen present did attend
the hearing, they would no longer be supervisors.' He then
asked the foremen individually whether they would attend
or not, and the two general foremen said they would not,
while the six foremen indicated they would Sam Curtis,
the Union's shop steward on the job, asked Root, as he
left, if he understood correctly that the foremen 'attending
the ESB hearing would no longer be foremen "as of
tonight," and Root replied that was what he meant
When Mook arrived at the hearing the next morning,
he and the other foremen were told by one of them, Shine,
that Shine had received a telegram at 8 a.m from
Foreman Thomas Holbrook telling him to advise the
others they were no longer foremen and should report for
work on Monday, May 26, with overalls and tools, which
indicated they would work as journeymen electricians. The
six men did not testify, as the hearing was postponed, and
about 10 a.m. they went to the union headquarters at the
request of its business agent They did not report this to
Root or return to the job that day.
When the six men reported at the project on Monday,
the 26th, with other journeymen, General Foreman Al
Sarno solicited men in the group to act as volunteer
foremen for the day, but did not ask the six. All other
journeymen refused the offer, so at 10 a.m. Sarno had all
journeymen sign a slip for 2 hours of "show-up" pay, and
sent them home, so that no electrical work was apparently
done that day On the 27th, Mook, Brown, Shine and
Troutwine reported for work as usual, and were assigned
to work as journeymen under a foreman, and they worked
thereafter on the project in that capacity, at a pay rate 50
cents an hour less than they had received as foremen.'
The parties stipulated , and I find , that the four named electrical
foremen were supervisors within the meaning of the Act
'i find the above facts from credited and mutually corroborative
testimony of Mook, Brown, Curtis and Root, and documentary evidence
Testimony of any of these witnesses in conflict therewith is not credited In
particular , I do not credit the versions of the three union members that
Root told the group the foremen would no longer be foremen if they
"testified against Ebasco," for while Brown uses these words, Mook did
not, and Curtis gives conflicting testimony on these words , admitting on
cross-examination that Root said that those "who attend " would no longer
be foremen It is patent that the union members were trying in partisan
fashion to build a picture of an employer palpably showing resentment for
apparent concerted and union activity in view of the contract terms which
make it mandatory that a job can function only with one or more foremen,
who are the only conduits for orders between management and the
journeymen, and that journeymen will not take orders except from them,
and a job cannot operate without them (see Article V, Sections 7 and 8),
and admissions of Mook to the same effect, I credit Root's version of his
reasons for insisting that the six remain on the job
General Counsel argues that Respondent's deliberate
demotion of the foremen because they attended the ESB
hearing on employee grievances against the desires and
direction of Respondent amounted to coercion which
violated Section 8(a)(1) of the Act because it interfered
with employees' statutory rights to have all pertinent
testimony presented before ESB under the contract
grievance procedure. Respondent contends that the
foremen's attendance at the hearing was not essential to a
fair hearing on the grievances but, to the contrary, was a
substantial interference with its right to continue its
business operation without hindrance, hence on balance
there was no violation of the Act; Respondent relies upon
N.L.R B v. Brown, 380 U.S. 278, where the Supreme
Court held that actions of an employer which may
interfere in some measure with employee concerted
activity, or may be somewhat discriminatory, do not
violate the Act where the tendency of such actions to
discourage union membership is comparatively slight and
they are reasonably adapted to deal with business
exigencies, and there is no proof of antiunion motivation
Thus, the issue appears to have-two facets- (1) Was the
presence of the six foremen at the ESB hearing essential
to a proper disposition by that tribunal of the grievances
of employees, so that any discipline for their attendance
was inherently destructive of employees' rights to a full
trial and proper decision on all pertinent facts9 and (2)
assuming some interference with that right occurred, was
it overbalanced by the employer's right to have its
business continued without interruption under the
circumstances of this case"
It is well settled that discharge of a supervisor for
testifying in proceedings under the Act is a coercion of
nonsupervisory employees in violation of Section 8(a)(1),
where the employees knew he gave testimony or the
circumstances show they had good reason to believe they
might suffer a similar fate if they gave testimony, for such
conduct has a tendency to obstruct and impede the Board
in its investigative and trial procedures, and to deprive
employees of their right to seek vindication by Board
process of their statutory rights.' General Counsel argues
that the same rule should apply where employees resort to
contract grievance procedures to vindicate their rights
under such contract, and supervisors take it on themselves
to appear before tribunals created under those procedures
This argument has merit, for the Act itself recognizes and
favors employees' right to use, and actual use of, contract
grievance procedures to settle labor disputes, and so do
the courts.' The Board has specifically protected
employees from employer interference with their right to
resort to such procedures under contracts, as well as
procedures before outside tribunals, to enforce contract
rights, on the theory that the filing of claims by employees
in either instance was a form of implementation of the
collective bargaining agreement and thus an extension of
the concerted activity which gave rise to that agreement.'
In addition, the Board has long followed the statutory
policy by withholding its processes in deference to an
arbitrator's award under contract procedures where the
'N L R B v Better Monkey Grip Co. 243 F 2d 836 (C A 5), enfg
Board order in 115 NLRB 1170, Dal-Tex Optical Co, 131 NLRB 715,
728, 729, Southland Paint Company, Inc, 156 NLRB 22, 37, 38
'See Section 203(d) of the Act, and Textile Workers Union v Lincoln
Mills, 353 U S 448
'B & M Excavating, Inc, 155 NLRB 1152, 1154
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitral process meets certain standards of fairness and
regularity.6 Therefore, it appears to be no more than a
reasonable extension of the above principle and Board
policy to say that employees have a corollary right to a
full and fair hearing on their grievances under contract
procedures which must likewise be protected from
interference or limitation
Respondent does not seriously dispute this conclusion,
but argues that the absence of the foremen was a
substantial hindrance to its business because the project
could not operate in the absence of foremen on the job
pursuant to contract terms. That foremen on the job were
essential to continuance of the operation is clear from the
contract terms and testimony of Mook noted above
However, it is not clear whether the refusal of the foremen
to work inherent in their stated intent to attend the
hearing actually hindered, disrupted or shut down
Respondent's work on the project on May 23. Under the
authorities Respondent must show that its demand that
they do not attend, followed by demotion for refusal to
obey, was reasonably adapted to the exigencies of
continued operation, but it offers no proof that the project
was in fact shut down or even delayed on the 23rd for
lack of foremen. The record shows that in the past there
had been frequent promotions and demotions of
journeymen to and from the status of foreman on the
project for various unstated reasons It is reasonably
inferable from this fact that Respondent had evolved some
orderly procedure for making these changes which would
avoid leaving the project without foremen at any time and
thus assure continuous operation In the case of the six
foremen here, Respondent knew sometime on the
afternoon of the 22nd that they had been requested to
appear before ESB, and after their demotion that
afternoon or on the 23rd, it knew it had six foreman
vacancies. Since Supervisor Sarno tried to fill them with
volunteers on the 26th but without success, it is inferable
that the same solicitation on the morning of the 23rd
might have been successful, if Root had not threatened
and then demoted the six but instead had canvassed for
volunteers at or before the meeting with them on the
22nd, and then allowed them to attend the hearing without
penalty, particularly if we assume that on the 26th fellow
union members refused the temporary assignments, in
presence of the demoted six, as a form of concerted
protest against their demotion. In light of these
circumstances Respondent's failure to show why it did not
try the solicitation procedure on the 23rd militates
strongly against the claim that it was concerned about a
serious stoppage in the project, or that attendance of the
six at the hearing worked a hardship on Respondent
justifying the discipline. Further, Respondent does not
show that the project was in fact shut down for lack of
foremen on the 23rd, and its failure to adduce such proof
warrants the inference that there was in fact no stoppage
Hence, Respondent has not adduced cogent proof to
support the proposition that it could not have allowed the
six to attend the hearing without hinderance of its
operations
Respondent also claims employees' rights to a fair
hearing on the grievances were not affected by the
demotions, in the absence of proof that testimony of the
six was essential before ESB But this is at most a
speculation While the contract does not explain how ESB
conducted its hearings, the fact that it sent letters to the
six requesting their appearance, after ESB agents had
taken notes in interviews with them, but no formal
statements, indicates that ESB felt their personal
appearance to give some sort of statement or testimony on
the grievances was advisable and would be helpful On the
need for their personal appearance, the Examiner and the
Board cannot properly second-guess ESB, lacking any
evidence of the facts its agents gleaned from interviews
with the foremen Since they and their investigators were
acting under the contract for both Respondent and the
Union, somewhat as joint arbitrators, it must be assumed
that their requests for appearance of the six were bona
fide. However, if it were proper to delve into this point, it
must be noted that the 37 grievants had been discharged
for poor production, and that in their work they took
orders of management only through the foremen, never
directly from general foremen or higher officials, so it is
patent that on an issue of poor production the testimony
of the foremen, who were the sole conduits of orders
between management and the journeymen and responsible
for their performance, would be material if not essential
on the circumstances of the giving of orders and any poor
production thereunder As Respondent admits, the
foremen might well be essential to show that poor
production resulted from failure to obey proper orders.
On the other hand, as fellow union members they might
well support the grievants' denial of poor production It is
pure speculation for Respondent to argue lack of
interference from the possibility that it might not choose
to rebut the grievants' testimony by use of the foremen In
fact it is not necessary to know whether the foremen
would have testified favorably to the grievants or the
employer if Respondent knew or had reason to believe
that they would have supported the grievants' story
because they were fellow union members, demotion for
their absence to give that testimony would have violated
the Act, for their testimony in support of their fellow
unionists would have been protected activity;' and if their
testimony would presumably have favored the employer, it
is incredible that Respondent would have prevented them
from giving it. Aside from that, the salient circumstance
appears to be that, as the ESB apparently concluded, the
testimony of the foremen was at least relevant and
material to the issues before it, hence it is a fair and
justifiable inference that the grievants might not receive a
full and fair hearing on their discharges without the
testimony of the foremen. It follows that Respondent's
order for them not to attend, followed by the
announcement of their demotion before the employees'
representative, and climaxed by their actual demotion, was
conduct which had a substantial tendency to inhibit
employees in the exercise of one of their important rights
under the contract, protected by the Act, but which on the
facts in this record had no countervailing importance in
maintaining continuance of operations at the project. I
conclude that Respondent's actions against the six was
discrimination against them for taking concerted action to
implement the contract, and also reasonably tended to
interfere with, restrain and coerce employees in the
exercise of rights guaranteed them by Section 7 of the
Act, and thereby violated Section 8(a)(1) of the Act.
'Spielberg Manufacturing Co, 112 NLRB 1080, 1082, is the leading
Board decision See also International Harvester Co . 138 NLRB 923, 926,
927
'Cf Brookside Industries. Inc, 135 NLRB 16, 26, 27, and see cases in
In 3 above
EBASCO SERVICES , INC. 771
CONCLUSIONS OF LAW
1 The Union is a labor organization within the
meaning of the Act.
2. By threatening to demote, and actually demoting,
foremen to nonsupervisory positions because they declared
their intent to give testimony at, and actually attended for
that purpose, a hearing by the Employment Stabilization
Board on employee grievances under the grievance
procedure in the contract between Respondent and the
Union, Respondent has discriminated against employees
for taking concerted action to implement that contract
and interfered with, restrained and coerced employees in
the exercise of their right, protected by Section 7 of the
Act, to have their grievances adjusted under the provisions
of said contract, and has thereby engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I will recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully demoted
Foremen Buford J. Mook, Michael W. Shine, Lloyd G.
Brown and Kenneth L. Troutwine because they declared
their intent to appear, and actually appeared, before the
Employment Stabilization Board established under the
contract between Respondent and the Union, to give
testimony in connection with grievances filed by
employees of Respondent, I recommend that Respondent
offer each of them reinstatement to his former or
substantially equivalent position, without prejudice to
seniority or other rights and privileges, and make each
whole for any loss of pay suffered by reason of
Respondent's discrimination against him, by payment to
him of a sum of money equal to that which he would have
earned as foreman from the date of the discrimination
against him to the date of offer of reinstatement, less net
earnings during said period, the backpay to be computed
in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289, with interest at the rate of 6 percent per
annum , as set forth in Isis Plumbing & Heating Co , 138
NLRB 716. I will also recommend that Respondent
preserve and make available to the Board or its agents,
upon request, all records necessary and pertinent for
computation of the backpay due.
Since the' discriminatory demotion of foremen found
above violates a fundamental right of employees to
implement their collective-bargaining contract by resort to
contract grievance procedures and to have a full and fair
hearing thereunder, without fear of interference with their
rights guaranteed by Section 7 of the Act, I shall
recommend issuance of a broad cease and desist order. ,
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in the case, I
recommend that Ebasco Services, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the above-named labor
organization, or any other labor organization of its
employees, by demotion of foremen or refusal to reinstate
them to supervisory positions, or discriminating in any
other manner against foremen or other supervisory
employees, because they indicated they would give
testimony, or have appeared for that purpose, before any
tribunal established under the grievance procedure in
Respondent's contract with said labor organization.
(b) Interfering with, restraining or coercing
nonsupervisory employees in the exercise of their statutory
rights, by threatening to demote, or actually demoting or
refusing to reinstate, supervisory personnel because they
have indicated they would give testimony, or have
appeared for that purpose, before any tribunal established
under the grievance procedure in Respondent's contract
with said labor organization.
(c) In any other manner interfering with, restraining or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
2 Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer to Buford J. Mook, Michael W. Shine, Lloyd
G. Brown and Kenneth L. Troutwine immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges previously enjoyed, and make them
whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them, in the
manner set forth in the section hereof entitled "The
Remedy."
(b) 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 records and reports, and all other
records necessary to analyze, compute and determine the
amount of backpay due under the terms of this Order.
(c) Post at its Hawthorne Station project in Kansas
City, Missouri, if the same is still under construction by
Respondent, otherwise at its main office or place of
business in the Kansas City, Missouri, area, copies of the
attached notice marked "Appendix."' Copies of said
notice on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of receipt of this
'If no exceptions are filed as provided by Section 102 46 of the Rules
and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Section 102 48 of the Rules and Regulations , be adopted by
the Board and become its findings, conclusions , and order , and all
objections thereto shall be deemed waived for all purposes if the Board's
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 be changed to read "Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and Order, what steps it has taken to comply
therewith
'If this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing,
within 10 days from the date of this Order what steps Respondent has
taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
After a trial in which both sides had the opportunity to
present evidence, the Trial Examiner found that we
violated the National Labor Relations Act and has
ordered us to inform our employees of their rights.
The Act gives all employees this right:
To organize themselves to form, join, or help
unions;
To bargain as a group through representatives of
their own choosing; and
To engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection. Such concerted activity includes the
right to file grievances and to have a full and fair
hearing on them under any contract negotiated and
executed between our company and Local Union No
124, International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization
of our employees.
We assure all of our employees that
WE WILL NOT discourage membership in the above
labor organization, or any other labor organization of
our employees, by demotion of foremen or refusal to
reinstate them to supervisory positions, or discriminate
against them in any other manner, because they have
indicated they would give testimony, or have appeared
for that purpose, before any tribunal established under
the grievance procedure in our contract with the above
labor organization
WE WILL NOT interfere with, restrain, or coerce our
nonsupervisory employees in the exercise of any of their
statutory rights noted above, by threatening to demote,
or actually demoting and refusing to reinstate, any
supervisory personnel because they indicated they would
give testimony, or have appeared for that purpose,
before any tribunal established under the grievance
procedure in our contract with the above labor
organization.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act,
except to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL offer to Buford J. Mook, Michael W.
Shine, Lloyd G. Brown, and Kenneth L. Troutwme
immediate and full reinstatement to their former
positions of foreman, and make them whole for any
loss of pay they may have suffered by reason of our
discrimination against them.
Dated By
EBASCO SERVICES, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
for covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
610 Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181.
I