Wagner-Smith Company,

National Labor Relations Board - Board Decisions

Jul 19, 1982

262 N.L.R.B. 999 (N.L.R.B. 1982)

WAGNER-SMITH COMPANY
Wagner-Smith Company and Russell S. Turner.
Case 9-CA- 16311
July 19, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On January 8, 1982, Administrative Law Judge
Martin J. Linsky issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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 conclusions2 of the Administrative Law Judge
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 credi-
bility unless the clear preponderance of all (If the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Productse
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
Additionally, Respondent asserts that the Administrative Law Judge's
findings are a result of bias. After a careful examination of the entire
record, we are satisfied that this allegation is without merit.
The Administrative Laws Judge found that Respondent's foreman,
Neary, testified that employee Heltsley told him that he had injured his
back as the result of a fall caused by a badly secured piece of sheet metal
on a roof at Respondent's jobsite, whereas Neary in fact testified that
Heltsley told him about a metal-covered opening on the roof through
which he could have fallen. The Administrative Law Judge also errone-
ously stated that Foreman Neary and General Foreman Helton conceded
that requests by the employees for a mnegger were reasonable. These
errors are insufficient to affect our decision.
2 Respondent contends that the Adminstrative Law Judge's Decision
assumes that an individual employee's complaints constitute protected
concerted activities when the subject matter of the complaints generally
involves terms and conditions of employment. Respondent thereby im-
plicitly suggests that the Administrative Law Judge's finding of a viola-
tion was based on Alleluia Cushion Cu, lite., 221 NLRB 999 (1975).
However, since we find sufficient evidence in the record that employees
Turner, Heltsley, Bennett, and Martin had actually engaged in concerted
activities, we find it unnecessary to decide whether their complaints,
even if not jointly expressed by two or more of their number, would con-
stitute protected concerted activity within the meaning of Sec. 7 of the
Act. Thus, in adopting the Administrative Law Judge's finding that the
four employees were discharged because of their concerted complaints,
we note the employees' undisputed testimony indicating that they jointly
registered complaints directly with Respondent's foremen about the de-
fective wire and apparently about the energizing of the motor control
panel. Additionally, we note the testimony of the employees and the
union stewards that the stewards in turn brought various complaints to
the attention of the foremen. Finally, we note the foremen's testimony
indicating that "they" (the employees) complained about pulling defec-
tive wire, brought up the issue iof safety tags, called the stewards over
every day, and discussed their i-om:plaints with other employees.
The Administrative Law Judge characterized the employees' com-
plaints as "reasonable in nature" and as "legitimate grievances." Howev-
er, it is well settled that the merit of a complaint or grievance is irrele-
vant to the determination of whether an employee's conduct is protected
under the Act, so long as the complaint was not made in bad faith. OMC
Stern Drive, a Division of Outboard Marine Corporation, 253 NLRB 486,
fn. 2 (1980), enfd. 676 F.2d 69h (7th Cir. 1982); John Sexton d Co., a Divi-
and to adopt his recommended Order, as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Wagner-Smith Company, Dayton, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
unlawful discharges of Russell S. Turner, Charles
Martin, Ray Bennett, and Matthew Heltsley on
January 2, 1981, and notify them in writing that
this has been done and that evidence of these un-
lawful discharges will not be used as a basis for
future personnel actions against them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
sion of Beatrice Food Co., 217 NLRB 80 (1975). We further find, as is im-
plicit from the Administrative Law Judge's Decision, that Respondent
has not established that the employees' complaints were made in bad
faith.
I In sec. l(b) of his recommended Order, the Administrative Law
Judge used the broad cease-and-desist language "in any other manner."
However, we have considered this case in light of the standards set forth
in Hickmott Foods Inc., 242 NLRB 1357 (1979), and have concluded that
the narrow cease-and-desist language "in any like or related manner" is
appropriate. We shall modify the Administrative Law Judge's recom-
mended Order accordingly.
We also shall modify the Administrative Law Judge's recommended
Order so as to require Respondent to expunge from its files any reference
to the unlawful discharges of Russell S Turner, Charles Martin, Ray
Bennett, and Matthew Heltsley on January 2, 1981, and to notify them in
writing that this has been done and that evidence of these unlawful dis-
charges will not be used as a basis for future personnel actions against
them. See Sterling Sugars. Inc., 261 NLRB 472 (1982).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT discharge any employees be-
cause they engaged in protected concerted ac-
tivities for mutual aid and protection.
262 NLRB No. 130
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed by the
National Labor Relations Act.
WE WILL offer Russell S. Turner, Charles
Martin, Ray Bennett, and Matthew Heltsley
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings they
may have suffered by reason of their unlawful
discharges, with interest.
WE WILL, expunge from our files any refer-
ence to the discharges of Russell S. Turner,
Charles Martin, Ray Bennett, and Matthew
Heltsley on January 2, 1981, and WE WILL
notify them in writing that this has been done
and that evidence of these unlawful discharges
will not be used as a basis for future personnel
actions against them.
WAGNER-SMITH COMPANY
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge: This
case was heard before me in Dayton, Ohio, on October 1
and 2, 1981. The complaint in this matter was issued by
the Regional Director for Region 9 on February 26,
1981, based on a charge filed by Russell S. Turner on
January 12, 1981. The complaint alleges that the
Wagner-Smith Company (herein Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, when it discharged four of its employ-
ees, i.e., Russell S. Turner, Charles Martin, Ray Bennett,
and Matthew Heltsley on January 2, 1981, because they
engaged in protected concerted activity for mutual aid
and protection. Respondent in its answer denied that it
violated the Act.
Upon consideration of the entire record, to include
post-hearing briefs filed by the General Counsel and Re-
spondent, and upon my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation, with its principal
office in Dayton, Ohio, has been engaged in providing
electrical services at various locations in the State of
Ohio. During the past 12 months, a representative
period, Respondent, in the course and conduct of its
business operations purchased and received at its
Dayton, Ohio, facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of Ohio. Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
Local 82 of the International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called Union or Local
82, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent was one of approximately 22 contractors
working on a construction project in Moraine, Ohio. The
project was the construction of a new Chevrolet assem-
bly plant for the manufacture of small trucks. Respond-
ent's contract called for it to do the electrical work for
the paint spray booths at the assembly plant. The electri-
cians who worked for Respondent at the site in Moraine
were all referred by Local 82 of the International Broth-
erhood of Electrical Workers. An excellent working re-
lationship had existed for a number of years between Re-
spondent and Local 82 and among the members of Local
82 who were supervisors for Respondent at this jobsite
were Ralph "Whitey" Helton, who was general foreman,
and William Neary, who was foreman.
The General Counsel alleges that Russell S. Turner,
Charles Martin, Ray Bennett, and Matthew Heltsley
were all discharged because they concertedly com-
plained about safety conditions on the job and about
other working conditions and exercised their right to dis-
cuss grievances with agents of Respondent. Respondent
avers that the four men were discharged because they
were constantly griping without cause and harassing the
general foreman, Helton.
If the General Counsel is correct then the four men
are entitled to reinstatement with backpay and an appro-
priate notice should be posted by Respondent. On the
other hand, if Respondent is correct or the General
Counsel has failed to prove his case then the complaint
should be dismissed.
I find that the General Counsel has proved his case by
a preponderance of the evidence.
All four of the discharged employees were travelers;
that is, they were members of the International Brother-
hood of Electrical Workers but were members of locals
other than Local 82.
Three of the discharged employees, i.e., Charles
Martin, Ray Bennett, and Matthew Heltsley, started
working for Respondent on November 11, 1980, while
the fourth, Russell S. Turner, started on December 9,
1980.
On January 2, 1981, all four were discharged. Between
the dates they started and the date they were terminated
all four men complained to the foreman and general fore-
man about a number of different matters on a number of
occasions. On January 2, 1981. all four men were in-
formed by General Foremai. Helton that they were
being laid off because of a reduction in force at the job.
It is an undisputed fact, however, that they were not laid
off due to a reduction in force caused by less work. The
evidence shows that most of the work on the project had
not been completed when they were laid off. Further,
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WAGNER-SMITH COMPANY
when the four discharged employees went to the Local
82 hiring hall immediately after their discharge they
learned that Respondent had just put in a request for
four additional men at the Moraine jobsite. It is apparent
that the replacements were to replace the four men they
had just discharged. The credible evidence of record es-
tablishes further that Respondent requested upwards of
15 electricians during January 1981 alone.
The fact that Respondent's agent, General Foreman
Helton, misrepresented to the four men the reason for
their being let go undercuts severely Respondent's posi-
tion as advanced at the hearing and in its brief; namely,
that the men were let go for cause. It is interesting to
note that Helton testified that he did not tell the four
men they were being discharged for cause rather than
being laid off in a reduction in force is because he did
not believe on January 2, 1981, that he had sufficient
reason to discharge the men for cause. It is only after the
complaint was filed in this case and it is obvious that the
General Counsel can prove that there was no reduction
in force caused by shortage of work that Helton claims
in retrospect that he had cause to discharge the men in
January 1981.
The credible evidence at the hearing establishes that
there were no complaints about the technical compe-
tence and skill of three of the four discharged employees
and the only complaint about the technical competence
and skill of Charles Martin was that he was a slow
worker. However, neither at the time of their discharge
nor at the hearing and brief stages of this case does Re-
spondent attempt to support its discharge of Charles
Martin because he was a slow worker.
Essentially, Respondent maintains that the four dis-
charged employees constantly griped about matters
which they claimed were unsafe but were not unsafe or
they griped about job conditions which were reasonable
and to be expected considering the type of job it was.
Their purpose in complaining according to Respondent
was to slow down the job so that it would be necessary
for the job to be put on overtime and then more over-
time so they could make more money which they were
in greater need of than other employees because as
"travelers" they had to maintain two homes; i.e., a tem-
porary residence where they worked and a permanent
residence for their families back home.
The four discharged employees were part of a 10-man
crew. Russell S. Turner, who worked for Respondent
from December 9, 1980, to January 2, 1981, complained
about a number of matters. He complained on December
10, 11, 12, and 30 at a minimum about the condition of
the wire he and the others were pulling. He complained
that it was "bad wire" with inadequate insulation. He
complained that they should have had a "megger" on
the jobsite to check the wire for defects. He complained
that the system he and the others were working on was
energized or made "hot" without warning thereby jeop-
ardizing the safety of Charles Martin and an apprentice
electrician named Jeff Schimer who were working in a
position where they could easily have been electrocuted.
He complained that the floor of the job site was covered
with water. He complained that his requests for safety
tags and hold tags were not complied with by Respond-
ent. Safety tags are tags or signs carrying various warn-
ings, such as "Dangerous," "High Voltage," etc. Hold
tags are color-coded tags on which an electrician work-
ing on a circuit would place his name. The hold tag
alerts anyone working on a circuit not to energize a cir-
cuit without first checking with the person whose name
is on the hold tag. While the use at this jobsite of the
lock and key method" may have obviated a need for
hold tags it did not obviate the need for safety tags.
Matthew Heltsley, Ray Bennett, and Charles Martin
all started working for Respondent on November 11,
1980, as noted earlier, and were terminated along with
Russell S. Turner on January 2, 1981. During his term of
employment for Respondent Charles Martin asked for
Safety Tags on numerous occasions. In addition, he com-
plained about the system being energized or made "hot"
without prior warning to him at a time when he was
working just outside a control panel and could have been
electrocuted easily had he stepped into the panel (which
was about 8 feet high and 2 feet deep) since there were
many exposed "points" inside the panel.
Ray Bennett complained about water on the floor
where the men were working, pointing out that this con-
stituted a safety hazard because electrical extension cords
were lying in the water. He complained about bad light-
ing, explaining how it contributed to an injury he sus-
tained when he bumped his knee. The bump left a scar.
He also complained about the energizing of the system
without prior warning and of the lack of safety tags. He
complained as well about the "bad wire" he and Turner
and Heltsley were ordered to pull.
Matthew Heltsley complained about water on the
floor. He complained about the severe cold where the
men were working. He requested a heater for the area
which took 3 to 4 weeks to be delivered. He noted that
the cold and wet work area resulted in all the men at
one time having colds and/or sore throats. He com-
plained about the bad lighting conditions in the stair-
wells. He explained how he fell and hurt his back at the
job, an injury which Foreman William Neary testified
Heltsley told him about at the time. The fall was caused
by an improperly secured piece of sheet metal on the
roof. Heltsley also complained about the "bad wire" he
and the others were ordered to pull.
I credit the testimony of Turner, Martin, Bennett, and
Heltsley. Their demeanor and the fact that they were
corroborated in many areas by Respondent's own wit-
nesses' persuades me to credit their testimony. I specifi-
cally do not credit the testimony of Foreman Neary and
General Foreman Helton when they testified that at one
or more of the regularly scheduled safety meetings held
on Monday mornings that all the men were advised prior
to the system being energized that the system was going
to be energized or made "hot" and that they should act
accordingly.
I find that the complaints made by Turner, Martin,
Bennett, and Heltsley were reasonable in nature and
were made on behalf of themselves and other workers on
I Both General Foreman Heiton and Foreman Neary conceded that
requests by the men for heat, megger, and safety tags were reasonable
and that the wire was bad.
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the jobsite and concerned terms and conditions of em-
ployment and were, accordingly, protected concerted ac-
tivity for mutual aid and protection.
I credit the testimony of Joseph Osterfeld, who testi-
fied on behalf of Respondent and who was a union ste-
ward at the jobsite, when he testified that complaints
from one or more of the discharged employees were
made approximately once a day but I do not credit his
opinion that there was no basis to any of the complaints.
The legitimate grievances of the four discharged em-
ployees aggravated General Foreman Helton. Helton
was described by Mark B.D. Hartke, another of Re-
spondent's witnesses, as being "hyper." Helton was also
described by Foreman William Neary as being under a
lot of pressure to get the job done. Mr. Helton impressed
me when he testified as an excitable individual. Helton
became, I find, simply too fed up with the legitimate
grievances of the four discharged employees and fired
them. He did not believe he had grounds to discharge
for cause so he lied and told them they were being laid
off due to a reduction in force caused by lack of work.
ANALYSIS AND REMEDY
Since I find that Turner, Martin, Bennett, and Heltsley
were discharged by Respondent because they concerted-
ly complained to Respondent's agents about safety condi-
tions and other terms and conditions of employment I
will recommend that Respondent cease and desist from
that practice, post an appropriate notice, and reinstate
with backpay the four discharged employees. Waterbeds
'N' Stuff, Inc., 238 NLRB 873 (1978); Centex Construc-
tion Company, Inc., 258 NLRB 1108 (1981); WLCY-TV
Inc., a subsidiary of Rahall Communications Corp., 241
NLRB 294 (1979). The discharge was a violation of Sec-
tion 8(a)(1) because they were discharged for exercising
rights under Section 7 of the Act. However, since I find
that the discharges had nothing to do with the fact of
their union membership and Respondent has enjoyed ex-
cellent relations with Local 82 the discharges do not vio-
late Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By discharging Russell S. Turner, Charles Martin,
Ray Bennett, and Matthew Heltsley, Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Sections 8(aXl) and 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law and upon the entire record herein and pursuant to
Section 10(c) of the Act, I hereby recommend the issu-
ance of the following:
ORDER 2
The Respondent, Wagner-Smith Company, Dayton,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they have engaged
in protected concerted activities for mutual aid and pro-
tection.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
protected by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Russell S. Turner, Charles Martin, Ray Ben-
nett, and Matthew Heltsley immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered from January 2, 1981, said backpay to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest as set forth in
Florida Steel Corporation, 231 NLRB 117 (1977). (See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962)).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Moraine, Ohio,
copies of the attached notice marked "Appendix"3
copies of said notice on forms provided by the Regional
Director for Region 9, after being duly signed by Re-
spondent's representative, shall be posted by it in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' 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 find-
ings, 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.
s In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1002