Ernst Steel Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 78 (N.L.R.B. 1974)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ernst Construction Division of Ernst Steel Corpora-
tion and Edmund L. Rail. Case 3-CA-5458
June 27, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY , AND PENELLO
On April 9, 1974, Administrative Law Judge Arthur
Leff issued the attached Decision in this proceeding.
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 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Ernst Construction Division
of Ernst Steel Corporation, Buffalo, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A. 3, 1951) We have carefully examined the record
and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a charge
filed by Edmund L. Rail on October 23, 1973, the General
Counsel of the National Labor Relations Board, by the
Regional Director of Region 3, issued a complaint, dated
December 3, 1973, against Ernst Construction Division of
Ernst Steel Corporation, Respondent herein, alleging that
Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(l) and (3) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, by
conduct hereinafter specified. Respondent filed an answer,
amended at the hearing, in which it denied the commission
of the alleged unfair labor practices. A hearing was held at
Buffalo, New York, on January 29 and 30, 1974. Briefs were
filed by the General Counsel and by Respondent on March
4, 1974.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal
place of business at Buffalo, New York, maintains a steel
fabrication plant and yard at Cheektowaga, New York, and
at all times material herein has been engaged in the building
and construction industry primarily as a contractor in the
fabrication and erection of structural steel and related prod-
ucts. Respondent annually purchases goods and materials
of a value in excess of $50,000 that are transported directly
to its plant in New York from States of the United States
other than the State of New York. Respondent admits that
it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it is so found.
It THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent admits, and it is
found that International Union of Operating Engineers,
Locals 17, 17A, and 17B, AFL-CIO, herein called Operat-
ing Engineers , and International Association of Bridge,
Structural and Ornamental Iron Workers , Local Union No.
6, AFL-CIO, herein called Iron Workers, are labor organi-
zations within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
This case is principally concerned with the complaint's
allegation, denied by Respondent, that Respondent on or
about July 6, 1973, discharged Edmund Rail, and thereafter
failed and refused to reemploy him, "because he engaged in
union and concerted activities for the purposes and objects
of collective bargaining and mutual aid and protection."
Respondent now defends against that allegation on the
ground that Rail was not discharged but simply laid off for
lack of work on July 6, 1973, and that its subsequent failure
to recall him is attributable solely to the fact that it has since
had no need for his services. As will more fully appear
below, that defense varies from the one Respondent had
asserted prior to the opening of the hearing. Respondent
had then conceded that it deliberately refrained from recall-
ing Rail to work following his layoff on July 6, 1973, and
had in effect dismissed him, but had insisted that it had
done so "not because of [Rall's] union activity but only
because of his attempt to obtain monies improperly on daily
expenses." The only other unfair labor practice allegation in
this complaint, also denied in Respondent's answer, is that
Respondent, through its agent and supervisor, Lawrence
Ashley, in early June 1973, "threatened its employees with
reprisals if they filed grievances."
212 NLRB No. 32
ERNST CONSTRUCTION 79
B. Background Facts
Edmund L. Rail, a crane operator with 23 years' experi-
ence in that trade, is a member of Local 17 of the Interna-
tional Union of Operating Engineers which represents
Respondent's employees classified as operating engineers
and their apprentices (oilers) in the Buffalo, New York, area
in which Respondent maintains its principal place of busi-
ness. Local 17's territorial jurisdiction covers all of Erie
County, the western part of Genesee County, and Orleans
and Wyoming Counties, all in New York. Respondent's
other employees who perform erection work in the Buffalo,
New York, area are separately represented by Local 6 of the
International Union Association of Bridge, Structural, and
Ornamental Iron Workers Union. Respondent, as a mem-
ber of an Employers Association, has enjoyed contractual
relations with Local 17 and Local 6 for some 35 years. Prior
to the charge giving rise to the instant proceeding, no un-
fair labor practice charge had ever been filed against Re-
spondent.
On various occasions between 1954 and 1971, Rall had
been hired to work for Respondent on specific jobs but had
not been regarded as a member of Respondent's regular
work force. Rail first became employed by Respondent on
a regular basis in the summer of 1971, and thereafter re-,
mained with Respondent on that basis until July 6, 1973,
when the complaint alleges he was discharged. The collec-
tive-bargaining agreement with Local 17, to which Re-
spondent is a party, makes no provision for job seniority,
and only limited provision for the recall of an employee who
has been laid off upon completion of a specific job to which
he has been assigned.' However, in the case of a crane
operator who is considered part of Respondent's regular
work force, it is Respondent's normal practice when work
is completed on a given job to assign such an operator to
another work for which he is qualified if such work is then
available, and if not to recall him for work-whether on the
same or a different machine-as soon as a new job for
which he is qualified opens up. In the case of Rall, Respon-
dent followed that practice during the period between the
summer of 1971 and July 6, 1973.
In December 1971, Local 17 appointed Rall as the job
steward for its members employed by Respondent. Thereaf-
ter Rall continued to serve in that capacity at all times
material herein.2
The Local 17 contract makes the following provisions
i Thus, sec. 15 of the contract provides: "When a machine is laid up and
the Engineer is laid off, the Employer and Union shall, if the machine goes
back to work, make every effort to rehire the same Engineer if a man is not
available from the Contractor's work force, unless that Engineer is employed
on another job.
2 The governing collective-bargaining contract provides that a steward
"shall not be laid off or discharged until a meeting between the Employer
and the Business Agent has been held," and, further, that "if mutual agree-
ment is not reached at this meeting in the disposition of the matter, either
party may move the dispute to Grievance." These provisions have been
construed by the contracting parties as according a steward in a layoff
situation a priority right to retention, but only as to jobs that are located
within Local 17's territorial jurisdiction Under the Employer Association's
interpretation of the contract, however, such jobs must be actually available
at the time of the layoff; if not then available, the steward has no priority
claim to jobs that may subsequently open up
with regard to employee expense reimbursement. It desig-
nates as a "Free Zone" a described geographical area in Erie
County, wherein Buffalo is located. An employee assigned
work on a jobsite within the boundaries of the Free Zone
is not to receive any travel expense reimbursement, and this
is so regardless of whether the employee resides within or
outside the Free Zone. If the jobsite is located outside the
Free Zone but within the territorial jurisdiction of Local 17,
the employee is to be allowed travel expenses at the rate of
10 cents a mile, measured by the distance from the nearest
boundary of the Free Zone to the location of the jobsite, and
return. The contract further states that "subsistence for liv-
ing away from home will be arranged between the engineer
and his employer." That provision in its contractual context
appears to apply to jobs that are within Local 17's territorial
jurisdiction. The contract makes no express reference to
mileage and/or subsistence allowances with respect to jobs
that are located outside the Local's territorial jurisdiction.
However, in practice, this appears also to be a matter left
for arrangement between the employee and his employer.3
As appears from Rall's undenied testimony, on the occa-
sions when Rall had worked for Respondent prior to 1971,
it had been Respondent's established practice to pay a flat
rate in lieu of mileage when work was performed outside the
Free Zone.
Rall further testified that in the summer of 1971, when he
was recruited to join Respondent's work force by Ronald
Kessler, Respondent's assistant superintendent, he inquired
of Kessler about the expense money Respondent intended
to pay on work performed outside the Free Zone, and was
told by Kessler that he would be allowed as a subsistence
allowance a flat rate of $11 a day based on a 7-day week.
Although Kessler denied that he made any such special
arrangement with Rall outside the collective-bargaining
agreement at the time, Rail's testimony is credited in that
respect. Earl D. Maurer, Respondent's erection superinten-
dent, acknowledged while testifying that Kessler had indeed
made such a special deal with Rall when Rall was hired.
Moreover, as appears below, Rail's testimony is supported
by undisputed evidence showing that that deal was actually
honored by Respondent until repudiated by Maurer some
time later.
Rall's initial work assignment following his hire in 1971
was to ajobsite inside the Free Zone. His assignments there-
after included not only jobs within the Free Zone, and some
outside Local 17's territorial jurisdictions,4 but several that
were located at sites that were outside the Free Zone but
within the geographical area of Local 17's jurisdiction. The
first of these was at Albion, New York, which is located in
Orleans County about 55 miles distant from Rall's home,
but much closer to the nearest Free Zone boundary.5 Rall
worked at the Albion job from about the end of December
3 Subsistence when agreed upon is in lieu of mileage Although designed
to compensate an employee for his per diem expenses in sleeping away from
home, it appears from the undisputed testimony of Rall that an employee
granted subsistence is not obliged to sleep over at the jobsite, but has the
option of commuting to the jobsite from his home if he is willing to assume
the burden of traveling the generally long distance this would entail.
4 On jobs outside Local 17's territorial jurisdiction , Rall was usually,
through not invariably, allowed expenses at $11 a day.
5 Rall lives at Grand Island which is located to the north and west of
Buffalo, at the Canadian border.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1971 to about the middle of March 1972. He was reim-
bursed for expenses on that job at the flat rate Kessler had
agreed to when Rail was hired-$I I a day for a 7-day week,
amounting to $77 a week.6 The oiler on Rail's crane was
reimbursed for expenses at the same flat rate. Following
completion of the job at Albion, Rail was assigned to a
bridge job at Oak Orchard, which is also located in Orleans
County, nor far from Albion. During their first several
weeks on that job, both Rail and his oiler were reimbursed
for expenses at the same flat rate of $77 a week. However,
in May 1972, prior to the completion of work at Oak Or-
chard, Maurer, overruling Kessler, directed that the flat rate
theretofore allowed Rail and his oiler as a subsistence allow-
ance be discontinued and that thereafter their reimburse-
ment for expenses be restricted to the 10-cent mileage rate
specified in the Local 17 contract. When Rail protested to
Kessler that this was contrary to their previous under-
standing, Kessler told Rail that he was obliged to follow
Respondent's current policy as declared by Maurer, and
that if Rall was unhappy with it he was free to seek employ-
ment elsewhere. During the remainder of the Oak Orchard
job, Rail and his oiler were compensated for expenses at the
contract mileage rate . Subsequently, in May and August
1972, Rail was assigned to jobs in Olean, New York, located
in Local 17's territorial jurisdiction, about 65 miles outside
the Free Zone. Rall and his oiler were compensated for their
expenses at Olean at the 10 cents contract mileage rate,
amounting in this instance to $13 a day.
C. Rail's Alleged Union and Concerted Activities
In early June 1973, Rall was assigned to a job at the
Attica Prison in New York where Respondent was to erect
the steel for a gymnasium being constructed inside the pris-
on walls. Attica is within the territorial jurisdiction of Local
17, about 30 miles outside the Free Zone, but about 55 miles
from Rail's home, approximately the same distance from his
home as the job Rail had worked on at Albion. Rail and his
oiler were the only employees of Respondent in the Local
17 bargaining unit assigned to the Attica Prison job. Rail
and his oiler had expressed their reluctance to accept that
assignment which had been previously scheduled for anoth-
er crane operator, William Richardson. Immediately before
their assignment to Attica they had been working on a job
in Lockport, New York, which, although outside Local 17's
territorial jurisdiction, is much closer to Rail's home, a dis-
tance of only about 30 miles.' And although work had tem-
porarily run out on the particular crane which Rail had been
operating at Lockport, Rail and his oiler had been promised
work at Lockport on a smaller crane that was to be operated
while the larger crane they had been on was out of use.
Lawrence Ashley, the foremen on the Attica job, had insist-
ed, however, on having Rail rather than Richardson work
the crane at Attica, and Rail had therefore been ordered to
that job notwithstanding his expressed preference to remain
6 Rall while working on this job most often would drive home each night
to be with his family. but would lay over if the weather was bad
7 Rall and his oiler were being compensated at the rate of 10 cents a mile
for their expenses at the Lockport job That compensation was fixed by
agreement between Rail and Maurer
at Lockport. Before coming to work on the Attica job, Rail
had no discussion with any management representative of
Respondent relating to his expense allowance at Attica.
Respondent's steel erection work at the Attica Prison job
began about June 11, 1973, and finished about June 27,
1973. The normal working hours of Respondent's employ-
ees are from 8 a.m. to noon and from 12:20 p.m. to 4 p.m.
Work at the Attica Prison job actually began at 8 a.m., but
Respondent's employees were required to report outside the
prison gate at 7:30 a.m. to clear prison security. They were
not permitted egress from the prison during lunchtime.
They discontinued work about 4 p.m., which allowed them
one-half hour to clear security on the way out. The Local
17 contract provides for double-time pay for work per-
formed before 8 a in. -
Respondent's crane operators call Respondent' s time-
keeper at its central office each Wednesday to report their
time worked and expenses claimed for the preceding week.
On Wednesday of the first week Rail worked at Attica, Rail
told his oiler, John Metz,8 to call in their time and expenses
and to request expenses at the rate of $11 a day, as well as
a half-hour overtime, for each of the 3 days they had worked
at Attica thus far that week. Metz, after making the call,
reported that Respondent's timekeeper, Irene Stegerwalt,
had rejected their claim for expenses and overtime and had
stated that that claim would have to be taken up with Maur-
er or Kessler. When Rail and Metz received their paychecks
that night, they found that they had been allowed no over-
time and only $6 a day for "carfare" expenses at Attica.
On the following day, June 14, Rail complained to Law-
rence Ashley, Respondent's foreman on the job, about the
timekeeper's refusal to allow the overtime and expenses that
he and Metz had requested. Ashley told Rail to "hold off"
until Maurer, who was then on a job in New York City,
returned and then to straighten out the matter with him.
Before the start of work on June 14, Rail informed Melvin
Ploessel, the Iron Workers steward, that he intended to file
a grievance for overtime, as well as for additional expense
money, and suggested to Ploessel he also make a claim for
overtime on behalf of the ironworkers on the job. All of the
ironworkers on the job, as well as Foreman Ashley, were
present when Rail made that suggestion. The ironworkers
agreed that they, too, were entitled to more money. Later,
Ploessel submitted to the business agent of his union a
grievance protesting the nonpayment of overtime to the
ironworkers on the Attica job for overtime pay, but that
grievance was not pressed further by the Iron Workers
Union
During the same week, Rail also complained on behalf of
himself and Metz to Thomas McPartland, a Local 17 busi-
ness representative, about Respondent's failure to allow
them the overtime and the expense money they had asked
for McPartland referred Rail to Raymond Fahey, Local
17's business representative in that area and also the presi-
dent of the Local. Fahey agreed to present their claim to
Maurer.
The next Wednesday, June 20, Rail himself called Irene
Stegerwalt to report in his time and that of Metz for the
8 Metz became Rail's oiler in March 1973, following the death of Rail's
previous oiler who had worked with him on the otherjobs referred to above
ERNST CONSTRUCTION
preceding week, and reiterated the demand made before for
overtime and expenses. Rail made it clear in making that
demand that he was representing not only himself but also
Metz, as he had been authorized by Metz to do. Stegerwalt
informed Rail that they were not entitled to the overtime
and expenses claimed and that these items would not be
allowed. When Rail persisted in his demand, Stegerwalt told
him he would have to take up the matter with Maurer or
Kessler. Rail asked Stegerwalt to have Maurer, who was
then still out of town, call Rail's home that evening, and
Stegerwalt agreed to relay that message.
Rail was not at home when Maurer called that evening.
He had, however, left instructions with his wife to tell Maur-
er that he was upset over the rejection of his claim for
overtime and expenses and that he might quit if these items
were not allowed. Mrs. Rail delivered that message to
Maurer. In response, Maurer told Mrs. Rail to tell her hus-
band not to quit and that he would personally discuss the
matter with Rail upon his return to Buffalo that Saturday.
The following Saturday Maurer called Rail as he had
promised. Maruer indicated his resentment of Rail's claim
for overtime, stating that he considered it unfair for Rail to
put in a claim for overtime when ironworkers on the same
job were not receiving any. He agreed, however, with Rail's
suggestion to have the propriety under the contract of Rail's
demand for overtime pay fought out at a meeting of compa-
ny and union representatives. With respect to the $11 per
diem expenses, Rail supported his claim for that item princi-
pally upon the promise Kessler had made him when he was
hired and upon the fact that Respondent was paying Law-
rence Ashley, its pusher on the Attica job, the $11 flat rate
that Rail was claiming. Rail also contended, inter alia, that
he should be paid more than the $6 expense money Re-
spondent was allowing him at Attica because traveling to
that job site was much more difficult for him than to Lock-
port where he had also received $6 a day expense money.
Maurer was unmoved by these arguments. He told Rail that
it was Respondent's practice not to pay more than the 10-
cent mileage rate stipulated in the contract for jobs located
within the geographical area of Local 17's jurisdiction; that
he did not intend to deviate from that practice; and that if
Rail was unhappy working for respondent on that basis he
should seek work elsewhere.
Subsequently Fahey met with Maurer to discuss the over-
time and expense money grievances that Rail had lodged on
behalf of Metz and himself through Local 17. At that meet-
ing, Maurer agreed to allow the claim for overtime, but
refused to retreat from his previously expressed position
with regard to the claim for expenses. The Union did not
press the claim for expense money as a contract grievance.
Following completion of the Attica job, Rail and Metz re-
ceived payment for overtime at the Attica job.
Upon completion of the Attica job on June 27, Respond-
ent reassigned Rail and Metz to the job at Lockport. They
completed their work on that job on July 5, and on July
6-their last day of work for Respondent-returned the
crane to Respondent's yard. On July 6, Rail submitted a
grievance to Business Representative McPartland that Re-
spondent was violating Local 7's contract by not using an
operating engineer on certain work being performed on a
truck crane by ironworkers in Respondent's yard. McPart-
81
land took up that grievance with Maurer, but concluded on
the basis of the explanation given by Maurer that, although
a technical violation of the contract might be involved, it
was not a grievance that warranted further processing.
D. Respondent 's Layoff of Rall and Its Subsequent Failure
To Recall Him
On July 6, Rail, after returning the crane to the yard,
contacted Maurer about further work. Maurer told him that
there would be no new work coming up for 3 to 5 days and
instructed Rail and Metz to go on layoff. Since his layoff on
July 6, Rail has never been recalled to work by Respondent.
It is conceded by the General Counsel that, on July 6,
Respondent had no other work within the geographical area
of Local 17's jurisdiction requiring the use of an operating
engineer to which Rail, as the Local 17 steward, had a
contractual priority nght.9 The General Counsel contends,
however, that after July 6, 1973, work did become available
for which Rail would have been recalled had Respondent
not regarded his layoff on July 6 as in effect a discharge.
There is substantial evidence in this record to support that
contention.
Thus, the record shows that prior to July 6 Respondent
had two operating engineers , Rail and Richardson, both
members of Local 17, whom it employed with regularity not
only on jobs within Local 17's geographical jurisdiction but
also on jobs outside that jurisdiction. Although Rail and
Richardson would be laid off when Respondent had no
work available for them, Respondent had followed the prac-
tice of recalling them after a layoff and giving them priority
in employment when new jobs opened up. Rail had been
regularly employed by Respondent longer than Richardson,
and was regarded by Respondent as a highly competent
operating engineer capable of operating any type of crane.
After July 6 and up to the time of the hearing, Richardson,
except for some very short layoffs, continued to work
steadily for Respondent, and, although most of his work
assignments were tojobsites outside of Local 17's territorial
jurisdiction for which clearance from other Locals were
required, there is nothing in the record to suggest that Rail
could not have received the same clearance.
The record further shows that shortly after Rail was laid
off, Respondent in effect replaced him on its regular work
force with another operating engineer-Thomas Wagner. It
will be recalled that when Rail was laid off, Maurer men-
tioned to him that there would be new work coming up in
a few days. Maurer's reference was to Respondent's Ogden
Street Bridge job which started on July 1 l and required the
services of an operating engineer for welding machine tend-
ing. Respondent did not recall Rail for that job, but hired
Wagner instead. Although Wagner had on occasion in the
past been used by Respondent when it needed an extra man,
he had not worked for Respondent for years and had never
9 At that time another Local 17 operating engineer, Richardson, was work-
ing for Respondent on a fob at Middleport, New York, which is in Niagara
County, just outside of Local 17's territorial jurisdiction As pointed out
above, however, Rail had no bumping right under the contract to that job
Maurer's testimony, denied by Rall, that he asked Rall whether he wanted
to exercise his "right" as a steward to bump Richardson, and that Rail
refused to do so, is not credited
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been regarded by Respondent as a member of its regular
work force. Maurer testified that he did not offer Rail the
job given Wagner on July 11 only because that job was of
short duration and lower rated than crane work, and he did
not think Rail would be interested in it . His testimony in
that respect is not credited. After the Ogden Street Bridge
job was completed on July 27, Respondent assigned Wag-
ner to various crane operating jobs located both within and
outside Local 17's territorial jurisdiction. The work given
Wagner was of a kind Respondent had assigned to Rall
before his layoff. Except for several layoffs of very short
duration, Wagner, after he was employed on July 1 I, has
continued to work steadily for Respondent at least up to the
time of the hearing.
When Rail learned that Respondent had hired Wagner
for the Ogden Street Bridge job, he presented an oral griev-
ance through Local 17' s Business Representative McPart-
land, apparently claiming that, as steward, he had a priority
claim under the Local 17 contract to that job. McPartland
took up Rail's grievance with Maurer. During the course of
their discussion of that grievance, Maurer told McPartland,
as appears from the latter's substantially undisputed and
credited testimony, that he had better advise Rail to seek
employment elsewhere as Respondent had no intention to
recall Rail for work.- Maurer gave as the reason that Rail
"hadn't made friends with management." When McPart-
land asked Maurer to be more specific, Maurer stated only
that Rail had had problems with Kessler and some of the
ironworker pushers, but did not elaborate further on what
those problems were.10 Local 17 did not further pursue
Rail's grievance that he had a contract right to the work
given Wagner. McPartland explained at the hearing that the
grievance was dropped because the Employers' Association
construed the applicable contract provision as giving a laid-
off steward no priority right to a job that was not in exist-
ence at the time of the layoff, and that in like situations
Local 17 had previously been unsuccessful in urging a con-
trary construction.
Kenneth Geilow, presently a foreman employed by Re-
spondent, testified without denial, and it is found, that in
October 1973, he asked Kessler why Richardson rather than
Rail was on a job to which he had been assigned, and was
told by Kessler that Rall was no longer with Respondent
because Respondent had "had a little trouble with him" at
Attica.
10 Respondent made no attempt at the hearing to establish that Rail was
not recalled because of "problems" with Kessler or any of the pushers
Maurer. when asked at the hearing whether Rail had had any problems with
Kessler, testified, "I understand they had some words, that is probably dust
part of the normal job operation and it was not reported to me that that was
anything of a serious nature "The only differences between Rail and Kessler.
added Maurer , related to "bickering over the expense accounts and travel
expenses " Kessler in his testimony did not refer to any other "problems "
Concerning his discussions with Rail about expenses , Kessler testified that
on out-of -town jobs "sometimes Rail asked for more "carfare" because he
couldn 't get along on $ I 1 a day" but these were "not heated discussions, we
managed to settle them and satisfy each other " Ashley, the foreman under
whom Rail had most often worked , testified on cross-examination that in his
working relationship with Rail, "We got along real good , never had a qualm
about Eddie He is one of the best operators I ever had "
E. Consideration of Respondent's Defense and Analysis
and Concluding Findings Relating to the Complaint's
Allegation That Rall Was Unlawfully Discharged
and/or Denied Reemployment
As noted above, Respondent 's defense to the complaint's
allegation of unlawful discrimination is that it never dis-
charged Rail but simply laid him off on July 6, 1973, and
that it has not since recalled him only because it has had no
need for his services. Respondent 's position was expressed
by its counsel in his opening statements as follows:
Our contention [is] he was not discharged . Mr. Rail was
laid off as when he completes any other normal job .. .
we have no argument with Mr . Rail concerning his
grievance at Attica Prison or anything of that nature
.... The operating engineers do a job and after the
job is finished and when there is work again they are
called back again. . . . When we need Rail again just
as any other operating engineer we will call him again.
Maurer's testimony was to the same general effect:
Q. But did you discharge Ed Rail, did you ever tell
him you're fired?
A. No, he was laid off for lack of work.
s
Q. Do you have any intention of bringing Ed Rail
back to work for the Company?
A. Under the correct conditions, yes, sir, it would
mean a large job and a crane requiring his capabili-
ties.' 1
Q. 82-ton [crane]?
A. 'Yes.
Q. (By Judge Leff) That is the only crane he operat-
ed?
A. No, he has operated all the cranes... .
Respondent's position at the hearing, to which it still
adheres, that its only reason for not recalling Rail to work
after July 6 was that it had no need for his services, is not
only clearly refuted by the facts reported in the subsection
above, but is directly at variance with the position Respond-
ent had taken in this case prior to the opening of the hearing.
Thus, Respondent's answer to the complaint, when filed,
alleged as an affirmative defense-deleted by amendment
at the opening of the hearing-that "Rail provoked his
discharge." That Respondent's failure to recall Rail to work
after July 6 was attributable not to work unavailability, but
to a determination on Respondent's part to treat Rail's July
6 layoff as in effect a discharge, is further reflected by a
prehearing statement of position that was submitted by Re-
spondent during the investigation of the charges in this case.
11 Later in his testimony Maurer added as a further condition to Rail's
rehire that it would "not mean replacing somebody that we now have with
the Company"
ERNST CONSTRUCTION 83
The statement is in the form of a letter, dated November 20,
1973, written by Respondent's counsel (after consultation,
the latter states, with Maurer and Kessler) to the Board's
field attorney who was investigating the charges. The letter,
inconsistently with the stand Respondent now takes, attrib-
utes Respondent's failure to recall Rall after his July 6 layoff
to his "obnoxious character which makes him difficult to
work with" and to his "constantly badgering the company
and administrative personnel to obtain higher daily expen-
ses than those to which he was legally entitled under the
collective bargaining contract." The letter does not amplify
the first reason given. With respect to the other stated rea-
son, the letter, after referring in conclusory terms to "prob-
lems" which Kessler and Maurer had with Rall "for a
period of time" about expense allowances, makes specific
reference to Rail's demand for overtime and $11 daily ex-
penses at the Attica job; alleges that, "when the company
refused to pay Mr. Rall more than $6.00 a day expenses" at
that job, "he created problems administratively, and con-
stantly bothered both supervisory help and office employees
claiming the $11.00," and then states:
Because of the course of conduct which culminated
in the Attica Prison job Mr. Rall was no longer em-
ployed by the Company.
At no time did the Company ever dismiss Mr. Rall
because of union activity but only because of his at-
tempt to obtain moneys improperly on daily expen-
ses.12
For the reasons stated, I reject as not credible the justifi-
cation Respondent now offers for its failure to recall or
reemploy Rall. The true explanation accordingly must be
sought elsewhere.
The only reasonable explanation to be derived from this
record, I believe, is that Respondent was motivated to act
12 The November 20 letter was offered by General Counsel and received
in evidence for the limited purpose of establishing Respondent 's admissions
against interest and disclosing conflicting statements affecting the credibility
of Respondent's witnesses Thus, the letter's self-serving assertions of reasons
why Rall was not recalled cannot be considered as evidence of the truth
thereof. As noted above, Respondent does not now rely on the reasons stated
in the letter to defend its conduct complained of. The following observations
nevertheless seem appropriate concerning such evidence relating to those
asserted reasons as does appear in the record:
The letter's assertion that Respondent was led to its decision not to recall
Rail in part because Rail's "obnoxious character " made him "difficult to
work with" is directly contradicted by Foreman Ashley's testimony earlier
adverted to: "We got along good, not a qualm about Eddie." The letter's
conclusory assertion of "problems" that Kessler and Maurer had with Rail
"for a period of time" is diminished when measured against Maurer's and
Kessler's testimony referred to in in . 10, above. The "administrative prob-
lems" which Rail is asserted to have created by his demands at Attica are
defined neither in the letter nor in this record. The assertion that Rail "con-
stantly bothered both supervisory help and office employees claiming the
$11" is revealed, at best, as hyperbole when examined in the light of the
factual findings made above Rail's single conversation with the timekeeper
when he called in his time , the complaint he made to his foreman about the
timekeeper's rejection of his claim , and his communication at the suggestion
of the foreman of that complaint to Maurer, to whom he spoke only once,
can scarcely be viewed as undue harassment; let alone as conduct that would
warrant the withdrawal of otherwise protected conduct from the safeguards
of the Act.
as it did because of resentment of Rail's conduct at Attica
in seeking along with his oiler, Metz, overtime pay and an
$11 per diem expense allowance, in submitting a grievance
on behalf of himself and Metz complaining of Respondent's
refusal to allow the requested overtime pay and expense
money, and in urging the ironworkers on the Attica job to
make common cause with him and Metz in demanding
overtime pay. Strong support for an inference to that effect
is to be found in Kessler's statement to Geilow, reported
above, that Rall was no longer working for Respondent
because Respondent had had "trouble" with him at Attica.
The record contains no persuasive evidence of "trouble"
with Rall at Attica of any other kind. The inference I draw
is also strongly buttressed by Respondent's admission in its
counsel's letter of November 20 that its denial to Rall of
employment after July 6 was most proximately related to
Rall's conduct at Attica in pressing his claim for more mon-
ey.13 That letter, it is true, also asserts other reasons for not
recalling Rall than the one found above, but these other
reasons, I have found, are not substantiated by credible
evidence in this record.14 Accordingly, I find that Respon-
dent failed and refused to recall or reemploy Rall after July
6, 1973, and in effect dismissed him on that date, because
of his activities at Attica stated above.
That finding does not, of course, completely dispose of
the issues in this case. There remains to be considered
whether Rail's activities in that regard were "concerted"
and, if so, protected. Respondent contends they were nei-
ther.
On the issue of whether Rail's activities were "concerted,"
it is clear from the record that Rall and Metz joined in their
request at Attica for overtime pay and an $11 per diem
expense allowance and that the grievance which Rall as the
union steward submitted through Local 17 complaining of
the rejection of that request was made by him on behalf of
Metz as well as himself.15 In these circumstances, I believe,
Rall's activities in pressing the claims made for overtime
pay and expense money must be found to be of a "concert-
ed" nature-and this, even though Rall in discussing the
claim with Maurer appears to have done so in personal
terms. I further find that Rail's conduct in urging ironwork-
ers at the Attica job to join in the claim for overtime pay
also constituted activity of a "concerted" nature.
To the extent that Rail's conduct in question was ad-
dressed to the caim for overtime pay, there can be no doubt
under Board law that it constituted protected concerted
activity under the Act. This would be so even if Rall had
acted solely on is own behalf. The basis for that claim was
that overtime p y was required under the governing collec-
tive-bargaining contract. The Board has long held that com-
plaints made or grievances filed for the purpose of requiring
compliance with the provisions of a collective-bargaining
13 "... created problems administratively and constantly bothered, both
supervisory help and office employees claiming the $11." Though the letter
relates this alleged conduct to Rail's pursuit of his claim for expense money,
it is obvious that, if true , it would necessarily have to encompass also Rail's
claim for overtime , since both claims were simultaneously pressed by Rail,
and in the same manner , in his several contacts with company personnel.
14 See in. 12, supra.
15 Respondent 's knowledge of this is apparent from the fact that, when the
grievance as it related to overtime was eventually allowed, payment of the
overtime was made to both.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, even if by a single employee acting alone, fall
within the category of concerted activity which is protected
by Section 7 of the Act. See, e.g., Interboro Contractors, Inc,
157 NLRB 1295, 1298, enfd. 388 F.2d 495 (C.A. 2, 1967).
The claim for $11 per diem expenses, unlike the claim for
overtime, was not predicated upon the collective-bargaining
agreement. Under Board law, however, where more than
one employee is involved in pressing a grievance relating to
conditions of employment, it is not essential that the griev-
ance be tied to a collective-bargaining contract in order to
bring it under the umbrella of Section 7. Respondent appar-
ently does not quarrel with that as the normal rule, but
contends that, even if "concerted," Rail's activity in press-
ing the claim for $11 per diem expenses should in this case
be ruled unprotected, because that claim was for an amount
in excess of the 10-cent mileage rate specified in the con-
tract. Respondent argues in substance that where a collec-
tive-bargaining agreement is specific on a particular point
and an employee, though acting in concert with others,
presses for more than the contract requires, his conduct
must be found to fall outside the perimeters of legitimate
concerted activity that the Act protects. Respondent has
cited no precedent to support the per se rule it urges, and so
far as I have been able to determine no like contention has
heretofore been considered or ruled on by the Board. Al-
though the principle advocated by Respondent has its ap-
peal as a general statement, I do not believe it is one that
can be, or should be, automatically applied without consid-
eration of the particular circumstances in each given case.
In the circumstances of the instant case, I would not apply
it for reasons stated in the marginal note.16 Accordingly, I
find that Rail's demand, complaints, and grievance relating
to his $11 expense claim constituted activity within the am-
bit of Section 7's protection.
It must be observed, however, that even if my last finding
had been different it would not alter the ultimate conclusion
I reach in this case. As is apparent from findings earlier
made, Rail's activities in pressing the expense claim were
intertwined with his activities with respect to the overtime
claim. The protected character of his prosecution of the
overtime claim cannot be open to serious challenge, and this
alone is enough to support a finding that Respondent's
reprisal action was violative of Section 8(a)(1). As the Board
held in Socony Mobil Oil Company, Inc., 153 NLRB 1244,
1247:
In order to supply a basis for inferring discrimination,
16 Rail and Metz were in effect seeking a subsistence allowance in lieu of
mileage at Attica, (see In 3, supra); (2) Although the contract stipulated a
specific mileage rate, it also permitted out-of-contract subsistence arrange-
ments between individual employees and their employer, the demands made
by Rail and Metz therefore did not require any conduct that would derogate
from the exclusive bargaining status of the Union, (3) Respondent had in the
past , without objection from Local 17, made separate arrangements with
engineers, including specifically Rail, for subsistence pay in lieu of mileage
onjobs within the territorial jurisdiction of Local 17, thereby evidencing that
this was not inconsistent with the contract , (4) subsistence allowances were
normally for amounts in excess of mileage, (5) the concerted activity engaged
in by Rail involved no strike or other activity which, if engaged in by a union,
would have been in derogation of the provisions of Sec 8(d) of the Act
relating to contract stability, and therefore offended no explicit statutory
policy
it is necessary to show that one reason for the discharge
is that the employee was engaging in protected activity.
It need not be the only reason, but it is sufficient if it
is a substantial reason.
The claim for overtime cannot be brushed aside as a matter
of no concern to Respondent. In terms of amount involved,
that claim appears to have been as large as the one for
expenses. And it was with respect to the overtime pay that
Rail reached out to the ironworkers on the job to induce
them also to express their dissatisfaction with the position
Respondent was taking. Maurer left no doubt in his tele-
phone conversation with Rail of Respondent's displeasure
with Rail for seeking overtime at Attica, and the fact that
Respondent eventually yielded at the grievance meeting to
Local 17's insistence that it was contractually required to
pay overtime is scarcely proof of forgiveness. Respondent
made no contention at the hearing, and there is no affirma-
tive evidence of probative competency in this record to
establish, that Rail's pursuit of his claim for expense money
was the only reason motivating Respondent's discriminato-
ry action against him. In these circumstances, it would be
speculative to assume that the protected concerted activity
engaged in by Rail in pressing the claim for overtime pay
was not a substantial element in Respondent's discriminato-
ry determination.
In sum , I find on all the record that Respondent failed
and refused to reemploy Rail after July 6, 1973, and on that
date in effect discharged him, because he engaged in pro-
tected concerted activity, and that by so doing it violated
Section 8(a)(1) of the Act.l"
F. The Alleged Independent 8(a)(1) Violation
There only remains for consideration the complaint's
allegation that, in June 1973, Respondent, through Fore-
man Ashley "threatened employees with reprisal if they
filed grievances." To support that allegation, the General
Counsel relies on Rail's testimony, in substance as follows:
On June 20, 1973, Rail and Metz went to Respondent's
Lockport job to obtain a replacement crane for their crane
at Attica which had broken down. As Rail and Metz were
leaving the Lockport fob to return to Attica, Roger Farns,
the ironworker foreman, told Rail that he had been asked
by Respondent's office to call in the time Rail left the Lock-
port job. This was unusual because in the past Respondent
had relied on Rail to report in his own time and had never
had anyone check on the accuracy of his report. Upon his
return to Attica, Rail told Foreman Ashley what had hap-
pened at Lockport, and expressed his irritation with Re-
spondent for checking up on his time. To which, Ashley
commented, "Don't you know by now that Ron Kessler is
out to get you."18
The General Counsel relies solely on Ashley's quoted
17 In view of the fact that the remedy would be the same, I find it unneces-
sary to determine whether Respondent by such conduct also violated Sec
8(a^(3) of the Act
1 Ashley testified that he could not "remember saying anything specific
like that." explaining that he had had "so many conversations with Rail that
it would be kind of hard to pinpoint anything like that " Rail's testimony is
credited
ERNST CONSTRUCTION 85
statement to establish the 8 (a)(1) allegation now under con-
sideration . When asked at the hearing whether he knew
what Ashley was referring to when he made that statement,
Rail said, "I have no idea." Neither do I. I .know only that
it is far too equivocal to sustain a finding that it constituted
a threat of reprisal against employees "if they filed griev-
ances." Accordingly , I shall recommend that this allegation
of the complaint be dismissed.
CONCLUSIONS OF LAW
1. By in effect discharging Edmund L. Rall on July 6,
1973, and thereafter failing and refusing to reemploy him,
because he engaged in concerted activities for the purpose
of mutual aid and protection , Respondent engaged in unfair
labor practices within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
2. Respondent did not engage in unfair labor practices,
as alleged in the complaint , by threatening employees with
reprisals if they filed grievances.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, it
will be recommended that Respondent be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act . Having found
that Respondent failed and refused to reemploy Edmund L.
Rail after July 6, 1973, and thereby in effect discharged him
on that date , it will be recommended that Respondent be
ordered to offer him immediate reinstatement to the same
employee status on Respondent 's work force that he occu-
pied prior to July 6, 1973, without prejudice to his seniority
or other rights and privileges , 19 and make him whole for any
loss in earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he would have normally earned
from the date of the initial discrimination against him (July
6, 1973) to the date of the offer of reinstatement , less net
earnings , if any, during such period , to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Edmund L . Rail immediate reinstatement to
the same employee status on Respondent's work force that
he occupied prior to July 6, 1973, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered as a result of
the discrimination against him herein found , in the manner
set forth in "The Remedy" section herein.
(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 , person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its yard on Walden Avenue, Cheektowaga,
New York, copies of the attached notice marked "Appen-
dix." 21 Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being duly signed by
Respondent 's representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted . Reason-
able 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 3, in writing,
within 20 days after receipt of this Order, what steps Re-
spondent has taken to comply herewith.
19 The intent of this reinstatement provision is that Respondent shall offer
Rail immediate employment if work is available for him for which he normal-
ly would have been hired but for the discrimination against him herein found,
and, whether or not such work is immediately available for him, Respondent
shall recall him or offer him reemployment for new work that may later arise,
according him the same priority on recall or reemployment as it would have
prior to July 6, 1973.
20 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 findings,
conclusions, and recommended Order herein shall, as provided in Sec. 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.
21 In the event that 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
ORDER20
Respondent , Ernst Construction Division of Ernst Steel
Corporation , its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging , laying off, or failing or refusing after a
layoff to recall or reemploy employees , or otherwise dis-
criminating in regard to their hire , tenure of employment,
or any term or condition of employment, because they have
engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge , lay off, or fail or refuse after
a layoff to recall or reemploy any of our employees, or
otherwise discriminate against them in regard to their
hire or tenure of employment, because they have en-
gaged in concerted activities for the purpose of collec-
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining or other mutual aid or protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in, or to refrain from engaging in,
any or all of the activities specified in Section 7 of the
National Labor Relations 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 Edmund L. Rail immediate reinstate-
ment to the same employee status that he occupied on
our work force prior to July 6, 1973, without prejudice
to his seniority and other rights and privileges previous-
ly enjoyed.
WE WILL make Edmund L. Rail whole for any loss of
pay that he may have suffered by reason of the discrim-
ination against him.
Dated By
ERNST CONSTRUCTION DIVISION
OF ERNST STEEL CORPORATION
(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,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Ninth Floor-Federal Building,
Ill West Huron Street, Buffalo, New York 14202, Tele-
phone 716-842-3100.