Union Electric Co.

National Labor Relations Board - Board Decisions

May 9, 1985

275 N.L.R.B. 389 (N.L.R.B. 1985)

UNION ELECTRIC CO.
Union Electric Company and Local Union No. 148,
International Union of Operating Engineers.
Case 14-CA-17046
9 May 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
- HUNTER AND DENNIS ' -
On 19 October 1984 Administrative Law, Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in-answer to
the Respondent's exceptions and a motion' to cor-
rect the judge's recommended Order.
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, findings, t and
conclusions and to adopt the recommended Order
as modifted.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Union Electric Company, St..Louis, Mis-
souri, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Make whole Anthony Caldwell, Dacia
Nash, and Larry Starks for any loss of wages or
other benefits they may have suffered as a result of
their suspensions on 4 and 5 May 1983, with inter-
est, and remove from their personnel record any
reference to their having been disciplined for fail-
ure to perform a job assignment on these dates."
I In agreeing with his colleagues' determination to affirm the judge's
finding that employees Caldwell, Nash, and Starks believed reasonably
and in good faith that the McKinley Bridge access to caisson no I was
unsafe, Member Hunter- notes the lack of supporting evidence In the
record for the judge's conclusion that the bndge'is part of the U S high-
way system and has a posted speed limit of 55 miles per hour However,
in view of the fact that the record supports a finding that vehicles pass
over the budge at speeds between 30 and 50 miles per hour, Member
Hunter finds the judge's error insufficient to affect the results of the case
In addition, in adopting the judge's fmding that the employees' fears of
the McKinley Bridge access were-reasonable notwithstanding the precau-
tions instituted by the Respondent as a result of the 6 April 1983 meeting
between its representatives and- employee-union steward Holloway,
Member Hunter notes that the record does not contain sufficient evi-
dence to find that the Union agreed to a waiver of the employees' con-
tractual right to assert that the McKinley Bridge access to caisson no 1
was unsafe -
2 The General Counsel has moved to conform the judge's recommend-
ed Order to-his findings. The motion is granted
DECISION
389
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me at St. Louis, Missouri, on
August 23, 1984; on the General Counsel's complaint' al-
leging that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act by suspending employees
on May 4 and 5, 1983, because they had engaged in pro-
tected concerted activity-refusing, pursuant to a right
under a collective-bargaining agreement, to perform a
job assignment on grounds of safety.
The Respondent denies that it committed the unfair
labor practice alleged and contends that the employees'
refusal to perform the job assignment was unprotected
because it was not based on a good-faith belief the job
was unsafe. -
On the record as a whole, including my observation of
the witnesses, the briefs and arguments of counsel,.I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a Missouri corporation engaged in
the production and distribution of electrical power at
several plants in the St. Louis area including the facility
involved in this matter located at Venice, Illinois. In the
course of its business, the Respondent annually derives
gross revenues in excess of $250,000 and annually re-
ceives directly from outside the State of Missouri goods
and materials valued in excess of $50,000. The Respond-
ent admits, and I find, that at all times material it has
been an employer engaged in commerce within the
meaning of Section 2(2), (6). and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 148 , International Union of Operat-
ing Engineers (the Union) is admitted to be , and I find is,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The material facts are undisputed and may be summa-
rized: For many years the Union has represented a pro-
duction and maintenance unit' of employees at the Re-
spondent's various facilities, including the one at Venice.
The parties have negotiated successive collective-bar-
gaining agreements . The one in effect during the time
material here tan from April 24, 1981, until June 1, 1983.
The Venice plant is about 40 years old and is now
used in an auxiliary capacity during times of peak electri-
cal usage (winter and summer). One company witness
testified that the plant had been in operation about 17
days the preceding year,. an estimate which was not dis-
puted by other witnesses. Nevertheless, the plant is
I The Charge was filed on October 7, 1983, and the complaint issued
on June 18, 1984 -
275 NLRB No. 59
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manned on a continual basis with a staff whose duties are
primarily to inspect and maintain the generating equip-
ment.
Near the plant are two caissons which are large struc-
tures containing the necessary equipment to pump water
from the Mississippi River to the generating plant in
times of operation. Since some time in 1982, when the
plant is not in operation there is no one assigned specifi-
cally to the caissons; still the Company has determined
that these structures should be inspected each shift speci-
ficaly to see that the sump pumps are, operative. The job
of inspecting the caissons is-now assigned by the station
supervisor to an assistant first auxiliary operator.
Caisson No. 1 is located about 60 yards from the plant.
To inspect this caisson normally one need only to walk
the 60 yards of open space, climb stairs to the door of
the caisson, and 'go in. However, during those times
when the Mississippi River is high, the caisson is com-
pletely surrounded by water thus foreclosing ground-
level entrance. On those occasions, to reach Caisson No.
1 one must use stairs which are attached at the top of the
McKinley Bridge and at the bottom to the caisson en-
trance which is about 20-30 feet above ground level.'-
The McKinley Bridge is a major structure over the Mis-
sissippi River and is part of the U.S. highway system.
Undisputably, the speed limit on the bridge is 55 miles
per hour. It has four lanes for traffic but no shoulder or
other place for a vehicle to park other than in- a traffic
lane.
The stairs between the bridge and the caisson are simi-
lar in construction, length, and pitch to those in the cais-_
son itself and the plant. A drawing submitted by the Re-
spondent shows that the stairway is in two sections each
with a 17-foot vertical drop and a 24-foot diagonal. Be-
tween the two sections is a 30-inch landing and at the
landing is a gate with a lock on the caisson side. The Re-
spondent's evidence indicates that the-top of the stairs at
the bridge is about 93 feet above the ground, or some-
thing less from the" water depending on how high-the
river might be at the particular time when the stairway is
being used Although the stairs have a handrail 3 feet
high on each side they are otherwise not enclosed. Final-
ly, the parties agree that the stairs shake when traffic, es-
pecially large trucks, pass over the bridge. -
As noted, one of the principal purposes of inspecting
the caisson is to ensure that the sump pumps are work-
ing, which is.a matter of increased importance when the
river surrounds the caisson. Thus, duriiig particularly
critical times, in order to inspect the caisson the basic
means of ingress is unavailable and the bridge stairs must
be used.
• While the bridge stairs have been used for about 30
years, apparently without incident, there was a safety
claim involving this means of entrance to the caisson
having to do with parking on the bridge.
About April 6, 1983, Willie Holloway was asked to in-
spect Caisson No 1 He told- his supervisor that he did
not want to use the stairs: because the previous Decem
ber he had been taken to the stairs in a company truck,
the driver of which made a U turn in the middle of the
McKinley Bridge and they were almost hit. Thus
Holloway stated that he would be willing to put on hip-
boots and walk out to the caisson which, apparently over
the protest of supervisor, he did. The next day he was
again requested to inspect the caisson but this time was
not allowed to walk because the river had risen making
this method even more dangerous. Holloway then told
his supervisor that he was declining to do the job be-
cause he felt that using the McKinley. Bridge stairs was
unsafe.
The following day Holloway met with the plant super-
intendent as well as the chief steward concerning his
claim that the stairs were unsafe. He was asked what
corrections he thought would be necessary in order to
make this manner of access safer. Holloway suggested at-
taching rails at the top of the stairs so when one climbed-
over the bridge railing to get onto the stairs he would
have something to hold on to. He also suggested the
Company should put some kind of a safety light on the
truck which let off the person who was to use the stairs.
Both of these suggestions were adopted by the Compa-
ny.
On May 4 Anthony Caldwell was asked by Station Su-
pervisor Larry Utnage to inspect the caisson. Caldwell
refused telling Utnage:
. .. because of the bridge and the truck and the
traffic which were not-you know, no one's sup-
posed to be allowed or cars supposed to stop on the
Bridge and then climbing on the Bridge itself and
then there was nothing to catch you if you lost bal-
ance or anything when you fell-if you fell because
of the Bridge-the steps going to the caisson would
shake severely.
Caldwell was not threatened with discharge for this
refusal. On leaving Utnage's office, he talked to two
fellow employees, Dacia Nash and Larry Starks. He told
them they would be also asked if they would inspect the
caisson using the McKinley Bridge stairs and that he had
refused to do so because he felt the use of the stairway
was unsafe. -
Nash and Starks were then called into Utnage's office,
asked whether they would inspect the caisson using the
McKinley Bridge stairs, and they said they would not.
They were sent home, but the next day Nash indicated
that she would use the bridge stairs if somebody went
with her. Starks did so.
In the meantime, Caldwell was advised by his steward
that he would be canvassed again and, if he again re-
fused, he would-be suspended. And on May 5, at a meet-
ing with company' officials; and the union steward, the
three, employees were asked by Plant Manager Robert
Schuman -why they thought the stairs were unsafe. They
explained their- reasons. However, company representa-
tives said the stairs were_ perfectly safe, particularly inas-
much as they had put a handrail at the top of the stairs
and provided the truck with a flashing light. Schuman
then stated that each employee would again be asked and
would be suspended on refusal.
Caldwell was first asked, and he said that he would
not use the McKinley Bridge stairs to inspect the caisson
and was told that he was indefinitely suspended: As indi-
UNION ELECTRIC CO.
cated, Nash and Starks did reluctantly agree to use the
stairs and were not suspended on May 5.
B. The Issue
The issue in this matter is whether or not when--the
Company suspended-Anthony Caldwell on May 5, as
well as Dacia Nash and Larry Starks on May 4, for re-
fusing to go to an assigned job by means which they
considered unsafe (using the McKinley. Bridge stairs)
they were engaged in concerted activity protected by
the Act.2 • -
C. Analysis and Concluding Findings
The parties agree there are two clauses in supplement
to the collective-bargaining agreement material to tliis
matter: •
4. An employee's refusal to follow an order to do
a job assigned (where the question of safety is not
involved) shall subject such employee to the dis-,
charge, suspension and disciplinary provisions' of
Article 2 of the Labor Agreement, and the action`
taken under such provision shall be subject to appli '
cable grievance provisions of the Labor Agreement.
5. If a position is taken that an assignment in-
volved safety,-or if all available bargaining unit em-
ployees who would ordinarily perform the work re-
fused to do so in the manner directed by the Com-
pany on grounds of safety, the Company may have
the work performed by supervisory employees or
outside contractors. •
Though the collective-bargaining 'agreement supple-
mented by this is somewhat ambiguous, the parties stipu-
lated to certain 'findings and conclusions of Judge Marion
C. Ladwig in a prior case involving these agreements. In
conclusion he stated, ' "Employees with- a good-faith
belief that the job is unsafe have the right to refuse to
perform the work."3 •
The first question, which is not really in dispute here,
concerns the concerted nature of their act. The evidence
clearly shows that they had discussed this matter among
themselves, and when meeting with company representa-
tives they were represented by their shop steward.
Beyond that, under the' collective-bargaining provisions
noted above, at ` a minimum each was attempting to
invoke a right existing as a result of collective bargaining
between the Union and the Respondent. Thus, without
more, their individual - acts were concerned. Interboro.
Contractors, 157 NLRB-.1295 (1966), enfd. 388 F.-2d 495
(2d Cir. 1967), which sets' forth a doctrine recently ap-
proved by the United States Supreme Court in NLRB- v.
City Disposal Systems, 104 S Ct. 1505 (1984).' - .
And the concerted nature of each act would not be
defeated, even by a finding that the assigned job was in
fact safe. Thus (id. at 1516):
2 When this dispute was apparently the subject of a grievance , the res-
olution,'if any, is unclear from the record In any event , deferral was not
raised as an issue -
3 Case 14-CA-15951, JD-345-83
391
The rationale of the Interboro doctrine compels a
conclusion that an honest and reasonable invocation
of the collectively bargained right constitutes con-
certed activity, regardless of whether the employee
turns out to have been correct in -his belief that his
right was violated.
The second question is whether their refusal to use the
stairs - was protected. Since, as the parties agree, good
faith is required of an employee who invokes the safety
.clause, their refusal is protected only if this test is met.
Further, establishing good faith is sufficient, because
nothing in the contract requires an employee to perform
an assigned job which is, in fact, safe if he, nevertheless,
has a good-faith belief it is not.4
Thus the ultimate issue here is whether they had a
good-faith belief that using the McKinley Bridge stairs
was unsafe. If they did, then they had a right under the
contract to refuse the assignment and could not be disci-
plined for having done so. If, on the other hand, their
belief 'was not in good faith then the Respondent's disci-
pline was not violative of the Act.
I note there is no evidence that their claim was based
on any consideration other than safety. There is no evi-
dence they were nitpicking complainers, or that they
were-trying'to get out of work, or even that the assign-
ment was in any way undesirable. -And- the Respondent
does not contend bad faith on the part of any of them.
Basically the Respondent argues that their claim of
safety was so unreasonable, given the objective facts,
that they must be found not to have acted in good faith.
The Respondent argues the stairs had been used for some
30 years without incident and, in any event just prior to
May 4, and at the suggestion of a fellow employee. along
with the Union, handrails were put at the top of the
stairs and the truck transporting the employees was af-
fixed with a warning light. -
In making a safety claim, one is stating he feels there is
an unacceptable risk of injury were he to perform the
job. Basically he has announced a fear that he would be -
injured if required to do the work. -
Perhaps a fear can be so groundless and contrary to
the general experience that it cannot be the basis of a
safety claim, no matter how sincerely held. Thus, even
absent a showing of bad faith on the part of an employee
(of which there is no evidence here), he still might not
with'impunity refuse a job assignment on grounds of
safety if the fear he harbors is essentially groundless.
Here, I conclude there is sufficient objective evidence to
support these employees' assertion of -danger associated
with using the McKinley Bridge stairs.
First 'is the manner of access to -the. stairs. All agree
that 'the individual assigned to use the stairs must be let
out of a company truck while the truck is stopped in a
lane of traffic in which the designated speed limit is 55
miles per hour. There is no shoulder to pull off on.5 Not-
4 Compare City Disposal where the protected issue was left open; the
Court noting that if the contract required an employee to perform a job
found to be safe, then his refusal would be unprotected, even if in good
faith he believed it to be unsafe
5 There is no evidence whether stopping a vehicle on the bndge -for
such a purpose violates state or local law, although such is normally pro-
hibited -
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withstanding that the company -truck is now equipped
with a flashing yellow light, to stop in an active lane of
high speed traffic, I conclude, poses a danger.
Then the individual assigned to use the stairs must
crawl over the guardrail 'on the bridge and onto the
stairs The risk involved in this has apparently been less-
ened somewhat by: the addition of rails on. the. stairs at
the top. Still the move required is up and over a guard-
rail.on a high-speed highway onto a stairway some 90
feet (about nine stories),above'the water.
Then one must walk down what can only- be described
as a long, steep, narrow, open,-metal stairway' which is
connected to the bridge. It shakes' with the passage of
vehicles, particularly heavy trucks. ' -
In fact, Caldwell stated that he had been at the caisson
and had observed the stairs move. He testified, "If I've,
never seen them move, I probably would have went. But
I've worked out there and I've seen them move that's
where really I felt that they neededsomething around
them." The Respondent- sought to'-minimize this fact
with the testimony of-Ernest Kohlenberger, the, plant
manager at Venice. Although he has not actually been
on the stairs for about 10 years, he testified that there is
"just a vibration" of the stairs from bridge traffic. Schu-
man also conceded that the stairs vibrated. The differ-
ence between "just a vibration" and "moving" is, I con-
clude for purposes of this analysis, insignificant. One
standing on the stairs would know it if•a tractor-trailer
went by at 55 miles per hour. -
Then on reaching- the rather small landing; 60 or so
feet above the water, the employee- must attempt to
unlock the gate which requires manipulating a lock
which is on the other side. And, finally, the employee
must descend to'the'entrance of the caisson.
From a description of the stairs and the bridge to-
which all parties essentially agree, I do not think- it is
groundless that one would fear danger of being hurt if
required to descend from a truck onto the budge and
onto the stairs and make his way down to the caisson.
To the contrary, notwithstanding a lack of accidents in
the past, fear of-injury on these facts is reasonable.
Indeed, when Holloway refused the job assignment in
April, he was not disciplined in part because Schuman
"more or less agreed with him-he had a reason to be
concerned, about Holloway was willing to wade in
the flood-stage Mississippi River than use the stairs. . Al
though the .Company did thereafter somewhat improve
the situation by placing handrails at the top of the stairs
and a warning light on the truck, such is insufficient to
transform what was concededly a reasonable fear on the
part of employees to an unreasonable one under the cir-
cumstances.
Accordingly, I conclude that the claim of safety taken
by Caldwell, as well as Nash and Starks, was reasonable
and in good faith. Therefore they had a contractually
protected right to decline to use the McKinley., Bridge
access to Caisson No. -1. When on May 4 and 5, 1983,
the Respondent suspended Caldwell, Nash and Starks, it
violated Section 8(a)(1) of the Act and I shall recom-
mend an appropriate remedy.
IV. THE EFFECT OF, THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above occurring in
connection with the Respondent' s business have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and, tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act. ,
V. THE REMEDY -
Having concluded that the Respondent engaged in the
unfair labor practices found above, I shall recommend'
that it cease and desist therefrom, and take certain appro-
priate action designed to effectuate the policies' of the
Act, including making whole Anthony 'Caldwell, Dacia
Nash, and Larry Starks for any loss of wages and other
benefits they may have suffered as a result of the Re-
spondent's suspension of them on May 4 and 5, 1983,
with interest, as provided for in Florida Steel Corp.; 231
NLRB 651 (1977).6 Further, I shall recommend that the
Respondent remove from their personnel record any ref-
erence to their having been disciplined. for refusal to per-
form an assigned job.
On these findings of fact and conclusions of law and
on the entire record,' I issue the following recommend-
ed7
ORDER
The Respondent, Union Electric Company, St. Louis,
Missouri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending or otherwise discriminating against em-
ployees because they. invoke rights provided for in the
collective-bargaining agreement with the -Union or other-
wise engage in concerted activity protected by Section 7
of the National Labor Relations Act. -
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take-the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole Anthony Caldwell, Dacia Nash, and
Larry Starks for any loss of wages or other benefits they
may have suffered as a result of their, suspension on May
5, 1983, with interest, and expunge from their personnel
record any reference to their having been disciplined'for
failure to perform a job assignment. -
(b) Post at its St. Louis, Missouri facility copies of the
attached notice marked "Appendix."8 Copies of the
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
7 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, as 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 -
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
UNION ELECTRIC CO 393
notice; on forms provided by the Regional Director- for
Region 14, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and be maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the noticess are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps it has taken
to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend or otherwise discriminate
against employees because they invoked any collective
bargained-for right or otherwise engaged in concerted
activity protected by Section 7 or the National Labor
Relations Act. - -
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act. -
WE WILL make whole Anthony Caldwell, Dacia Nash,
and Larry Starks for any loss of wages or other benefits
they may have suffered as a result of our suspension of
them on May 4 and 5, 1983, with interest, and WE WILL
remove from their personnel record any reference to
their having been disciplined for. failure to use the
McKinley Bridge stairwell.
UNION ELECTRIC COMPANY
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.