Esco Elevators, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1245 (N.L.R.B. 1985)

ESCO.ELEVATORS
Esco Elevators , Inc. and International Union of Ele=
-vator Constructors , Local 21 . Case 16-CA-
9551
30 September 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 26 August 1983 the-National Labor Relations
Board issued a Decision and Order in this proceed-
ing' wherein the Board adopted the findings and
conclusion of the administrative law judge that the
Respondent had violated Section 8(a)(3) and (1) of
the Act by discharging employee Charles McKin-
ney. Subsequently, the Respondent - petitioned the
United States Court of Appeals for the Fifth Cir-
cuit to review and set aside the Board's Order, and
the Board' cross-petitioned for enforcement of its
Order. On 16 July 1984 the court of appeals issued
its decision denying enforcement of the Board's
Order and remanding the proceeding to the Board
for further consideration in light of its opinion.2
The Board accepted the court's remand and noti-
fied the parties that they would be permitted to file
statements of position with the Board on remand.
The General Counsel, the Respondent, and the
Charging Party subsequently filed statements of po-
sition.
The National Labor Relations, Board has delegat-
ed its authority in this proceeding. to a three-
member panel.
Pursuant to the court's decision, the single issue
before us is whether McKinney's safety-related
complaints, which the court affirmed were the mo-
tivating factor in his discharge, constituted protect-
ed union activity, thus establishing the discharge as
a violation of Section 8(a)(3). The relevant facts
are as follows.
McKinney worked for the, Respondent as an ele-
vator service mechanic. He was elected president
of the Union Local in January 19803 based on a
campaign platform which stressed in part increased
adherence to safety regulations on the job. In June,
following an impasse in collective bargaining,
McKinney and a union steward led a work slow-
down of the Respondent's employees. Also in June
McKinney lodged the first of several complaints
about a safety problem involving a faulty electrical
installation at Lakeland Manor, one of the jobsites
where he worked. He complained to the Respond-
ent about the problem again in October. In early
1 267 NLRB 728 (1983)
2 NLRB v. Esco Elevators, Inc, 736 F 2d 295 (5th Cir 1984)
3 All dates hereinafter are in 1980
1245
November, after receiving an electrical shock at
the jobsite, he took the matter to other officials of
the Union in addition-to lodging another complaint
with the Respondent. The other union officials in-
spected the jobsite and subsequently they com-
plained to the Respondent about the safety problem
on two occasions prior to McKinney's discharge.
In late November McKinney had a fist fight with
another employee concerning a matter unrelated to
the safety problem. In early December, after
McKinney _and his supervisor argued at the jobsite
about the safety issue, the supervisor discharged-
him, purportedly because of the fist fight.
The judge, citing both the June work slowdown
and the safety complaints, concluded that McKin-
ney was fired because of- his 'union and related
safety activities, thus a violation of Section 8(a)(3)
and (1). The Board affirmed, noting McKinney's
union activities and his protected activities in con-
nection with the safety problem.
The• Fifth Circuit Court concluded that there
was no substantial evidence to support the Board's
determination that the_ discharge was motivated to
any, extent by -McKinney's participation in the
work slowdown. NLRB v. Esco Elevators, above at
299. The court did find that the discharge was mo-
tivated by the Respondent's animus toward McKin-
ney's 'safety-related complaints. With regard to a
further 8(a)(3) analysis, the court rioted that neither
the judge's nor the Board's decision clearly indicat-
ed whether McKinney's safety complaints alone
constituted-union activity. Thus the 'court ordered
the case remanded to the Board, "for a determina-
tion of whether the safety-related complaints con-
stituted a union ' endeavor . . . as' opposed to a per-
sonal undertaking," within the meaning of previous
Fifth Circuit decisions. Id. at 300.'The court stated
that "if the Board finds that the safety related com-
plaints were a union endeavor, McKinney will be
entitled to reinstatement." Ibid.
We note first that McKinney emphasized job-re-
lated safety' matters in his campaign for. Local
president. We also note his uncontradicted testimo-
ny that, inspection of safety conditions at the sites
where he worked was part of his role as a union
official. Further, the record indicates that at one
point during the time when McKinney was making
his safety complaints, the Respondent's district su-
pervisor, Jack Payne, and the service supervisor,
Lawrence Hueber, discussed the problem. When
Payne asked wh'there was such an interest in the
safety conditions at the jobsite, Hueber responded
that McKinney was pressing it because he was
president of the Union Local. It was Payne who
subsequently fired McKinney. McKinney also con-
tacted other union officials about the problem.
276 NLRB No. 138
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They inspected the conditions at the jobsite and
then pursued the matter with the Respondent on
two occasions before McKinney was discharged.
Thus, aside from' McKinney's own participation,
apparently in his role as Local president, other
union officers were involved in attempting to re-
solve the safety problem.
Taking account of all of the above, we find that
the safety complaints concerning the Lakeland
Manor site constituted union activity-"a union en-
deavor and not a mere personal undertaking" as
the Fifth Circuit Court has aptly phrased it. NLRB
v. Laney & Duke Storage Warehouse Co., 369 F.2d
859, 866 (5th Cir. 1966). Also see NLRB v.
Bowman Transportation, Inc., 314 F.2d 497 (5th Cir.
1963); Metal Blast, Inc. v. NLRB, 324 F.2d 602 (6th
Cir. 1963); Newport News Shipbuilding & Dry Dock
Co., 254 NLRB 375 (1981), enfd. 607 F.2d 1002
(4th Cir. 1982). Thus the evidence establishes ade-
quately that the Respondent's termination of
McKinney violated Section 8(a)(3) and (1).4
ORDER
The National Labor Relations Board reaffirms its
Order previously issued on 25 August 1983, 267
NLRB 728, and orders that the Respondent, Esco
Elevators, Inc., Fort Worth, Texas, its officers,
agents, successors, and assigns, shall take the .action
set forth in the Order.
4 We note that the 8(a)(1) violation here derives from the violation of
Sec. 8 (a)(3), rather than signifying an independent violation of the Act.
CHAIRMAN DOTSON, dissenting.
I would remand this case for further hearing
before an administrative law judge. The present
record in this proceeding is insufficient to show
that McKinney's safety complaints were protected
by the Act. The case arose at a time when safety
complaints lodged by an individual employee for
personal reasons carried far greater weight with
the Board than they do now. See, e.g., Meyers In-
dustries, 268 NLRB 493 (1984), and overruled cases
cited therein. Thus there was no need to focus at
the hearing on the issue of whether McKinney's
complaints amounted to union activity. What is ap-
parent in the present record is that McKinney's
complaints concerned only the safety problem at
Lakeland Manor-his own jobsite. At this point,
while it is possible that McKinney was engaged in
a protected union endeavor in lodging his com-
plaints, it is just as likely that he was using his own
position in the Union and using other union offi-
cials to pursue a strictly personal matter.
Additionally, I note the distinct possibility that
McKinney was asserting rights grounded in the
parties' collective-bargaining agreement in making
his safety complaints. This raises issues of protected
activity recently addressed by the Supreme Court
in NLRB v. City Disposal Systems, 104 S.Ct. 1505
(1984). Again, these matters were not covered at
the hearing as there appeared no need at that time.
This is added justification for remanding this case
for further hearing. Accordingly, I dissent.