L. E. Myers Co.

National Labor Relations Board - Board Decisions

May 31, 1984

270 N.L.R.B. 1010 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The L. E. Myers Company and Frank Berenotto.
Case 22-CA-12084
31 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 February 1984 Administrative Law Judge
D. Barry Morris issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, 1 findings, and
conclusions 2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to the judge's denial of his motion
to strike the Respondent's 9 January 1984 letter containing a newly issued
court opinion. The General Counsel contends that the letter is actually an
unauthorized brief which the judge could not accept because the deadline
for the filing of briefs had passed. We reject this contention because we
find that it was within the judge's discretion to admit such supplemental
material after the period allotted for the formal filing of briefs had ex-
pired.
2 In view of his decision to dismiss the unfair labor practice allegation,
the judge found it unnecessary to rule on the Respondent's contention
that this dispute should be deferred to the grievance and arbitration pro-
cedures contained in the collective-bargaining agreement. The Board
does not reach the judge's discussion of the deferral issue in fn. 3 of his
decision because no exceptions were filed to the judge's disposition of it.
We note, however, that it was not proper for the judge to postpone reso-
lution of that issue pending his determination of the alleged 8(aXl) viola-
tion. Whether deferral is appropriate is a threshold question which must
be decided in the negative before the merits of the unfair labor practice
allegations can be considered. In addition, we disavow the judge's discus-
sion of the applicability of United Technologies Corp., 268 NLRB 557
(1984), to the facts here.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me at Newark, New Jersey, on
June 27 and September 12 and 13, 1983. Upon a charge
filed on December 16, 1982,1 a complaint was issued on
January 27, 1983, alleging that The L. E. Myers Compa-
ny (Respondent) violated Section 8(a)(1) of the National
All dates refer to 1982 unless otherwise specified.
270 NLRB No. 146
Labor Relations Act. Respondent filed an answer deny-
ing the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed on Decem-
ber 1, 1983, by the General Counsel and by Respond-
ent.2
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with headquar-
ters in Chicago, Illinois, and an office and place of busi-
ness in East Orange, New Jersey, is engaged in the busi-
ness of electrical contracting. It annually purchases
goods valued in excess of $50,000 directly from suppliers
located outside the State of Illinois. Respondent admits
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue in this proceeding is whether several em-
ployees refused to work because of abnormally danger-
ous conditions.
B. Facts
I. Events of December 11, 1982
Respondent is under contract with New Jersey Transit
to perform the reelectrification of the Erie Lackawanna
Railroad. The employees involved in this proceeding
worked on a catenary, consisting of a platform and a
ladder leading up to a horizontal beam or I-beam. The I-
beam was approximately 40 feet from the ground and the
electric railroad wires were not energized.
At approximately 7:30 a.m. on December 11, 1982,
when the employees in question started out for work, it
was snowing. Berenotto testified that there was a "dust-
ing" of snow, with an accumulation of approximately a
half inch. He testified that there was no difficulty in
driving that morning. Oliver testified that the streets
were clear but that the ground and "along the railroad
tracks" were covered with a "dusting" of snow. Birk-
beck testified that the roads and the ballast on the rail-
road tracks were clear but that the grass was covered
with snow.
Haspel testified that during the course of the morning
the snow "slacked off" and that around 10 a.m. he and
Kraly proceeded to clean the snow off of the platform.
Haspel testified that there was approximately a half inch
of snow, but no ice, on the top of the I-beam. Birkbeck
2 On January 9, 1984, Respondent submitted a letter enclosing a copy
of a recent court opinion. On January 12 the General Counsel filed a
motion to strike and on January 16, 1984, Respondent filed its reply to
the motion to strike, The General Counsel's motion to strike is denied.
The documents are included in the record as ALJ Exh. 1.
!010
L. E. MYERS CO.
testified that there was a "covering" of snow on the I-
beam which they proceeded to push away. He testified
that after the snow was pushed away the I-beam was
wet, but not icy. Haspel testified that there was no ice on
the ladder when they went up, but that there was slush
on it when they came back down.
On the way down the ladder Kraly slipped. Berenotto,
who did not actually go on the catenary structure on
December 11, saw Kraley slip while coming down the
ladder. At this point Berenotto and several of the other
employees decided that working conditions that day
were unsafe. Berenotto told Anderson, the foreman, that
the work was unsafe and that he would not do it. Beren-
otto credibly testified that Graham, the general foreman,
told the employees that "if you refuse to work it's going
to be considered a voluntary quit." After that conversa-
tion two of the employees, Birkbeck and Breen, contin-
ued to work. Four employees refused to work.
Berenotto testified that Kraly and Haspel were wear-
ing safety belts but "they had no place to put" them.
Similarly, Haspel testified that he had his safety belt on
his side but it was not belted down. Pagel, the project
manager, testified that linemen working on structures 40
feet high sometimes do and sometimes do not fasten their
safety belts. Pagel further testified, however, that "as a
lineman if there were any slipperiness or any reason for
me to be concerned that I would fasten my safety and
keep it fastened by whatever means and methods that I
had to use."
The record indicates that three-tenths of an inch of
snow fell on December 11. From 7 a.m. to I p.m. the
temperature ranged from 34 to 36 degrees Fahrenheit.
On that day there were 130 employees, together with 6
supervisors, working on the project. After the four em-
ployees refused to work, the other employess continued
working.
Taylor, the project superintendent, credibly testified
that on November 13 a total of 1.28 inches of rain fell,
but that the men continued to work. In addition, Taylor
credibly testified that on December 11 he received no
complaints that the vertical beams were slippery.
Giles, the assistant superintendent, testified that the
work in question was not dangerous because the wire
was not energized. He testified, "[W]e worked in drizzles
or rain before when the structures were wet and there
wasn't any problem." Douts, assistant chapter manager
of the National Electrical Contractors Association, testi-
fied:
[T]he total industry [ils such that the lineman work
has to be somewhat hazardous and the fact that
they do have the outside elements. Their work is all
outside, so they do have to contend with the envi-
ronment. That's basically it, whether it's snow, rain
or what. It's there and has to be attended to.
Pagel considered that the work in question under the
conditions as existed on December II was not abnormal-
ly dangerous. Similarly, Taylor testified that in his opin-
ion the weather conditions on December II did not con-
stitute abnormally dangerous working conditions.
2. Concluding findings
I find that on December 11 approximately three-tenths
of an inch of snow fell at the site in question. The cate-
nary crew brushed away the snow from the top of the I-
beam after which the I-beam remained wet but not cov-
ered with ice. Similarly, the steps of the ladder were wet
but not covered with ice. The crew had worked previ-
ously during periods of rain. The crew had safety belts
available and while the use of them may have proved
somewhat cumbersome, they could have been used. I
also find that the other approximately 126 employees
continued working after the four employees in question
refused to work.
3. Discussion and analysis
An employer does not violate Section 8(a)(1) of the
Act if it discharges employees for their breach of a no-
strike clause of the collective-bargaining agreement.
However, where employees refuse to do work which is
"abnormally dangerous," Section 502 of the Act protects
that refusal.
The test for determining if conditions are "abnormally
dangerous" under Section 502 is an objective one. Gate-
way Coal Co. v. United Mine Workers, 414 U.S. 368, 386-
387 (1974); Redwing Carriers, 130 NLRB 1208, 1209
(1961), enfd. as modified 325 F.2d 1011 (D.C. Cir. 1963),
cert. denied 377 U.S. 905 (1964).
In Redwing Carriers, the Board stated, in construing
the term "abnormally dangerous conditions" (130 NLRB
at 1209):
We are of the opinion the term contemplates, and is
intended to insure, an objective, as opposed to a
subjective, test. What controls is not the state of
mind of the employee or employees concerned, but
whether the actual working conditions shown to
exist by competent evidence might in the circum-
stances be considered "abnormally dangerous."
Similarly, in Gateway Coal, the Supreme Court stated
that the honest belief of employees that conditions were
unsafe was insufficient to meet the criteria of Section
502. The Court stated (414 U.S. at 387):
[A] union seeking to justify a contractually prohibit-
ed work stoppage under Section 502 must present
"ascertainable, objective evidence supporting its
conclusion that an abnormally dangerous condition
for work exists."
I believe that the General Counsel has not sustained
his burden of showing by ascertainable, objective evi-
dence that abnormally dangerous working conditions ex-
isted at the site on December II11. I have found that
three-tenths of an inch of snow had fallen, but that the
catenary crew was able to brush away the snow from
the top of the I-beam and that, while the top of the I-
beam as well as the stairs of the ladder were wet, they
were not icy. Furthermore, in the past the employees
worked under wet conditions. I conclude that the Gener-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al Counsel has not shown that abnormally dangerous
conditions of work existed at the site on December 11 .
' At the hearing Respondent moved to defer this proceeding to the
dispute resolution procedure established in the collective-bargaining
agreement. In view of my decision to dismiss the complaint it is not nec-
essary that I decide the motion to defer. While I note that in the Board's
recent decision in United Technologies Corp., 268 NLRB 557 (1984), the
Board deferred a proceeding involving an alleged violation of Sec.
8(aXl), in that case the union was the charging party. In the instant pro-
ceeding the charge was filed by Berenotto and the Union did not partici-
pate nor was it represented at the hearing. Indeed, after contacting his
local business agent, Berenotto was left with the impression that the
Union would not file a grievance on behalf of the four employees in-
volved in this proceeding. See Fenix d Sison, Inc., 207 NLRB 752, 760
(1973); Boilermakers Local 92 (Bigge Drayage), 197 NLRB 281, 286-287
(1972).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
The complaint is dismissed.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, u provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1012