Wray Electric Contracting, Inc.

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 757 (N.L.R.B. 1974)

WRAY ELECTRIC CONTRACTING, INC. 757
Wray Electric Contracting, Inc. and Wilbur A.
Shreeve . Case 9-CA-8044
May 21, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 24, 1974, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Wray Electric
Contracting, Inc., Lancaster, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on November 29, 1973, at Lancaster,
Ohio, pursuant to a charge filed by Wilbur A. Shreeve, an
individual, on September 27, 1973, and served on Respon-
dent on October 1, 1973, and a complaint and notice of
hearing dated November 13, 1973, issued by the Acting
Regional Director for Region 9 of the National Labor
Relations Board, which was likewise duly served on
Respondent. The complaint alleges essentially that Res-
pondent has violated, and is violating, Section 8(a)(1) and
(3) of the Act by discharging the Charging Party, Wilbur
A. Shreeve, because the latter engaged in certain activities
on behalf of Local Union No. 683, International Brother-
i At the conclusion of the heanng, I closed the record except for leaving
open exh 3 for Respondent , such exhibit to be the Respondent 's reply to the
General Counsel 's motion to strike paragraph 9 of Respondent 's answer to
the complaint In said paragraph 9, Respondent had asserted a Collyer
defense (Collyer Insulated Wire, 192 NLRB 837)
On December 11, 1973, I received from Respondent 's counsel a copy of a
letter dated December 7, 1973, from Respondent 's counsel to counsel for
the General Counsel wherein the former withdrew Respondent 's Collyer
hood of Electrical Workers (sometimes hereinafter referred
to as the Union), and, more particularly , for the reason
that the Charging Party filed a complaint against Respon-
dent with the United States Department of Labor alleging
that certain conditions of employment at Respondent's
Ralston Purina jobsite at Lancaster , Ohio, were unsafe in
violation of the Occupational Safety and Health Act of
1970. In its answer, duly filed, to the complaint, Respon-
dent denied the commission of any unfair labor practices.
For reasons, which will appear hereinafter , I find and
conclude that Respondent discharged Wilbur A . Shreeve
in violation of Section 8(aX3) and ( 1) of the Act.
At the hearing the General Counsel and Respondent
were represented by counsel . All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs . The parties waived
oral argument at the conclusion of the hearing and
Respondent and General Counsel have filed briefs received
by me on December 28, 1973 , and January 2, 1974,
respectively.
Upon the entire record i in the case , including the briefs,
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation which is engaged in
the electrical contracting business . One of Respondent's
places of business is in Lancaster , Ohio, and is the only
facility of Respondent involved in this proceeding.
During the past 12 months , which is a representative
period , Respondent had a direct inflow in interstate
commerce of goods and products valued in excess of
$50,000 which it purchased and caused to be shipped to its
place of business in Lancaster, Ohio , directly from points
located outside the State of Ohio.
At all times material herein , Respondent is, and has
been , an employer as defined in Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, Local Union No. 683,
International Brotherhood of Electrical Workers, is and
has been a labor organization as defined in Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Supervisory Structure
Respondent's president is Richard Wray. At the Ralston
defense and joined in General Counsel's motion to strike said defense as it
appears in paragraph 9 of the answer to the complaint General Counsel has
acknowledged receipt of this letter I hereby receive this letter into evidence
as Resp Exh 3 and place said letter and its envelope in Respondent's
exhibit file . The record of the heanng is hereby closed . Further, I hereby
grant the motion of counsel for the General Counsel , now joined in by
Respondent , to stake paragraph 9 of the answer to the complaint.
The record is also noted and corrected
210 NLRB No. 110
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Purina site in Lancaster, Ohio, here involved, Respondent's
project manager was, at all times relevant hereto , William
Jansen, Jr., and its general foreman, at all times relevant
hereto , was Herbert Baker . Reporting to Baker were
various foremen including Merrill, Knapp, and, until the
morning of the Charging Party's discharge on September 7,
1973, Vargo.
Respondent admits , and I find, that Jansen and Baker
are, and have been, agents of Respondent , acting on its
behalf, and supervisors within the meaning of Section 2(11)
of the Act.
B. Background and Sequence of Events
Respondent has been the electrical subcontractor of the
Rosendahl Corporation at the latter's Ralston Purina
project in Lancaster, Ohio, since sometime before August
1, 1973. On July 23, 1973, Respondent consented in writing
to be bound by the collective-bargaining agreement
between the Central Ohio Chapter, National Electrical
Contractors Association, and the Union and amendments
thereto . This consent remains in effect until May 31, 1975.
The current agreement between the Central Ohio Chapter,
National Electrical Contractors Association, and the
Union is effective from September 5, 1973, until May 31,
1975.
Prior to August 1, 1973, the Union had been receiving
complaints from its members and its steward , Barnecut,
about safety conditions at the Ralston Purina project in
Lancaster, Ohio, including but more recently, conditions of
employment with Respondent. These complaints as well as
his own inspection of this jobsite prompted Daniel Bricker,
the Union's business manager, to speak to the Charging
Party, Shreeve, on August 1, 1973.
On that date Shreeve received a referral slip from the
Union's assistant business manager (job dispatcher), who
also told Shreeve to wait at the Union's hiring hall until
Bricker arrived to give Shreeve certain instructions.
Shreeve then met and spoke with Bricker in the adjacent
parking lot about 8:45 a.m. that same day.
Bricker told Shreeve about the complaints received from
union members about unsafe conditions at the Ralston
Purina project and also advised Shreeve that he desired
Shreeve to be his, Bricker's, safety representative at the job
and to examine the safety situations there. Bricker advised
Shreeve that, if Shreeve discerned what Shreeve considered
to be safety violations, then Shreeve should file a report
with the Occupational Safety and Health Administration
of the Department of Labor of the United States
Government (hereinafter OSHA) and that Bricker would
support Shreeve's action.2
2 These findings are based on the credible and corroborative testimony
of Bricker and Shreeve in this regard
3 Jansen is not mentioned in Shreeve's testimony as to this incident and
Jansen testified that he knew that Shreeve had been hired but that he had no
conversation with Shreeve on August 1.
4 This finding is based on Shreeve's testimony as corroborated by
Barnecut . While Shreeve was, at times , defensive in his testimony, his
overall manner was sincere and I have credited him in a number of the
essential aspects of his testimony. Barnecut testified in a forthright and
straightforward manner and was, in my judgment , a generally credible
witness I have discredited Baker's denial that Shreeve stated that he,
Shreeve , was there to check on safety matters Baker's tone on the stand was
argumentative and his testimony was not, in my judgment , offered in as
Shreeve has had a considerable amount of training in
safety matters. To begin with he is a journeyman wireman
of 33 years' experience. As early as 1957 or 1958 he has
served on the Union's safety committee and has been its
chairman. He has served on committees of the Labor
Conference of the National Safety Council. He has taken
safety courses from that Council, from the United States
Departments of Labor and Health, Education and Wel-
fare, and seminars at several universities . He has received a
certificate from the Secretary of Labor whereby he is
authorized to conduct both a 10-hour and a 30-hour
construction safety program for union members and to
certify those who have satisfactorily completed it. He has,
in fact, conducted safety courses and has trained some 400
people in the 10-hour course and 60 in the 30-hour course.
Shreeve reported to the Ralston Purina plant in Lancas-
ter, Ohio, about noon on August 1, 1973. After Shreeve got
there he went to Respondent's office where he met with
Project Manager Jansen , General Foreman Baker, and
Union Steward Barnecut, but Jansen thereafter left .3
Shreeve gave Barnecut his referral slip and informed
Barnecut and Baker that he, Shreeve, had been sent there
by Bricker to work as a journeyman wireman and to
observe and report on any safety violations? Although no
request had been made to the Union for a referral of a
wireman at that time Shreeve was nevertheless hired,
inasmuch as there was work to do. After Shreeve was hired,
foreman Vargo arrived on the scene and assigned Shreeve
some work at the site.
During part of the rest of the day, Shreeve went around
the project with a pad and pencil noting what he
considered to be safety violations. While Shreeve was so
engaged he was observed by Budgen (the project engineer
of Rosendahl Corporation, the general contractor for the
Ralston Purina job) who called Baker's attention to this
activity. Baker then contacted Barnecut, the union ste-
ward, and Baker and Barnecut later found Shreeve going
around talking to employees and making notes on a pad.
Baker spoke to Barnecut about Shreeve's actions and
Barnecut said he would take care of it. Baker did not,
however, speak to Shreeve about the matter.5
At his home on that evening or the following evening
Shreeve prepared a complaint about what he believed to be
safety hazards on the Ralston Purina job. In this
complaint, wherein Shreeve named Respondent as the
employer, Shreeve went on to say that the complaint was
directed against the prime contractor, Rosendahl Corpora-
tion, because, Shreeve stated in the complaint, the items
complained of were under the control of the latter
employer. On August 3, 1973, this complaint was filed with
straightforward a manner as that of Barnecut nor, generally , as that of
Shreeve While Baker testified that he was not shown a referral slip for
several days after Shreeve reported for work, I find this explained by
Barnecut 's credible testimony that he, Barnecut, was shown the slip upon
Shreeve's arrival and thereafter it may have been misplaced temporarily.
Shreeve stated he showed the slip to Baker or Barnecut when he went to the
jobsite on that day.
S The findings as to this incident are based on the admissions of Baker in
his testimony Baker's awareness on this occasion that Shreeve was talking
to employees and making notes and Baker's failure to press an inquiry into
what Shreeve was doing nor to admonish Shreeve further suggest. contrary
to Baker's denial (see previous footnote), that Baker well knew what Shreeve
was doing , i e., checking on safety violations.
WRAY ELECTRIC CONTRACTING, INC.
the area director of OSHA at Columbus, Ohio. Shreeve
stated on the complaint that he did not desire his name to
be revealed .6
About a week later Jansen told Barnecut that he , Jansen,
thought Shreeve had come down there to spy on the whole
job.7
Thereafter, Shreeve continued to work for Respondent
until his discharge on September 7, 1973. During his
employment at least some of Shreeve 's assignments
involved working on lights for the parking lot, wiring doors
in the warehouse, and installing rods and plates. On the
last day of his employment, September 7, 1973, Shreeve
was performing certain duties which required him to stand,
at times , on a scaffold, about which more will be said,
infra. Shreeve's performance and comments on it will be
discussed later in this Decision when I consider Respon-
dent's defenses and make my "Concluding Findings."
One aspect of Shreeve's performance, however, should
be mentioned at this juncture because of its bearing on
Respondent's awareness of Shreeve's knowledge of safety
laws. During his 5 1/2 weeks of employment with
Respondent Shreeve on a number of occasions was seen by
Budgen, Baker, and Jansen walking around carrying his
hard hat (protective helmet) instead of wearing it on his
head.8 Baker ordered Shreeve several times to wear his hat.
To this Shreeve replied that under the safety act there was
no need to wear a hard hat because the ceiling would not
fall in on him. After a few of these experiences Baker
warned Shreeve that the next time Baker caught Shreeve
without a hard hat Shreeve would be fired. Shreeve
persisted in this practice thereafter, despite Baker's
warning and Baker was aware that Shreeve did so .9
Returning to the last day of Shreeve's employment, when
he reported for work on the morning of September 7, 1973,
he went to the so-called gang box, which is a locked
container wherein the toolboxes of the employees and
Respondent's tools were stored for safekeeping. The gang
box was locked. Since Shreeve did not have keys to this
container he stood there waiting for his foreman, Vargo,
who did. Vargo arrived some 15 minutes later, about 7:40
or 7:45 a.m., and informed Shreeve that he, Vargo, had just
been demoted by Respondent to journeyman status. Vargo
also told Shreeve that he, Vargo, did not have the keys to
the gang box. The two men then waited for the new
foreman to arrive with the keys.
6 These findings are based on the full testimony of Shreeve which I find
to be credible in this regard.
r Barnecut credibly so testified I do not credit Jansen's denial. Jansen
twice denied he made the comment, first in answer to a question by the
General Counsel , then in answer to my repetition of the question However,
after his first denial Jansen appeared to have second thoughts and sought to
obtain clarification from the General Counsel about the question, which the
General Counsel refused.
8 Baker credibly testified that Budgen so informed him, Baker
9 These findings are based on the credible testimony of Baker and
Jansen in this regard . Shreeve admitted that he did not wear his safety hat
all the time on the job, explaining on the stand, as he did to Baker, that the
safety law did not require it where the ceiling protected him
10 These findings are based on the credible testimony of Shreeve as to
this incident except for the time of Vargo's arrival on the scene. The finding
as to the latter is based on the testimony of Baker as to the time he sent
Vargo to the second floor to work with Shreeve and Shreeve 's testimony
that Vargo arrived about 15 minutes after Shreeve arrived Shreeve's normal
starting time was 7 30 and he was paid from that time on that day less a half
739
Sometime thereafter, about 8 : 30 a.m., Baker the general
foreman , arrived with Merrill , the new foreman. Baker
asked Vargo and Shreeve why they were standing around.
Shreeve replied that they could not work because their
tools were locked up and asked where the foreman was.
Baker said that Merrill would be their foreman and
directed them to go to work. 10
On that same day, at least by lunchtime , a Mr. Maxy
from the Columbus , Ohio, compliance office of OSHA
arrived on the job . Also on that same day Jansen,
Respondent 's project manager, was given a copy of
Shreeve's OSHA complaint-the copy being furnished to
Jansen by Rosendahl , the general contractor . This copy
did not show the name of the person who filed the
complaint.
Later that day Jansen and Barnecut were talking about
the job and Jansen told Barnecut he had something to
show Barnecut . Jansen then withdrew a document from an
envelope which had been on his desk and showed it to
Barnecut . The document was the complaint filed by
Shreeve with OSHA. Jansen asked Barnecut if he had any
comment, but Barnecut replied that he had none. Then
Jansen stated to Barnecut "We know who sent that though,
don't we?" Barnecut made no reply. i i
The scaffold on which Shreeve was working on the last
day or two of his employment did not in fact meet safety
standards . After the OSHA representative came on the
jobsite Barnecut and Baker came to Shreeve and told him
to put a guard rail on the scaffold, which he did.i2
At 3 p.m. on September 7, 1973, Baker came to where
Shreeve was working, gave Shreeve his check , and handed
Shreeve a discharge slip. The normal quitting time is 4 p.m.
When handing this slip to Shreeve , Baker made no
comment and, for his part , Shreeve merely said thanks,
shook hands with Baker , and left . The discharge slip stated
that the reason for Shreeve's discharge was "Work
Unsatisfactory." 13
After his discharge Shreeve reported back to the office of
the business manager of the Union . The business manager
advised Shreeve to return to the job on Monday which
Shreeve did but he was not rehired by Respondent.
Shreeve also reported this to the business manager who
then set up a meeting with representatives of Respondent
in the union office for the following day or the next day.14
The meeting was held, as scheduled, at the Union's office
hour for lunch . I deem Shreeve 's estimate of the time of Vargo s
arrival-about 8 to 8:30 a m.-as inaccurate in the above circumstances.
Vargo did not testify
11 These findings are based on the credible testimony of Barnecut in this
regard . Jansen admitted that the incident occurred but stated that to his
recollection he rather asked Barnecut the question "I wonder who this might
have been?" In not crediting Jansen 's version of the question I have
considered not only Respondent's prior knowledge of Shreeve's safety
mission at the project but also its knowledge that Shreeve went around
talking to employees carrying a pad and pencil in his hand on the first day
of his employment and its knowledge that Shreeve flaunted his understand-
ing of the safety law when told to wear his hard hat. In the same vein I note
that the question, as Jansen testified to it, could if stated in a sarcastic
manner convey the same meaning as the question as Barnecut testified to it
i2 Shreeve credibly so testified.
13 The findings in respect to this last incident are based on the credible
testimony of Shreeve in this regard as essentially corroborated by Baker
14 Shreeve credibly so testified.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Columbus, Ohio, on the Tuesday or Wednesday
following Shreeve's discharge. In attendance were Shreeve,
Bricker (the union business manager), Wray (Respondent's
president), Baker, Jansen, and Surnbrock (Respondent's
engineer estimator). At this meeting the attendees dis-
cussed the discharge of Shreeve and the possible discharge
of several other employees of Respondent.15 The only
reasons given at this meeting for Shreeve's discharge were
his lack of productivity and, specifically, his work on the
warehouse doors, previously referred to, and his standing
around by the gang box, where the tools were stored, on
the morning of the last day of his employment. 16 Bncker
mentioned to Baker at this meeting that Shreeve had been
sent down to the Ralston Purina project to check on safety
conditions.17
Although no other employee was discharged during the 2
1/2 weeks following this meeting, Shreeve was not
reinstated. After the meeting was over Shreeve told Wray
in the parking lot outside the union office that he, Shreeve,
was contemplating filing charges with OSHA because
Respondent had discharged him for making a report to
OSHA.
Shreeve filed the charge which gave rise to this
proceeding on September 27, 1973, as previously noted.
C. Respondent's Defenses
In its brief to me Respondent asserts that Shreeve was
discharged because of his "poor work habits." More
particularly, Respondent asserts, pointing out testimony of
its witnesses, that: Budgen, the Rosendahl representative,
and Baker and Jansen frequently observed Shreeve at the
jobsite not working at times when he should have been;
Baker observed Shreeve not wearing his hard hat at the site
although rules of the jobsite required that it be worn;
Shreeve took too long to do the parking lot lighting project
and the warehouse door project and, at the latter, this was
due to Shreeve's failure to preposition the materials with
which to do his work; Shreeve stood around at the gang
box for an hour on the last day of his employment;
productivity tests run on Shreeve showed that his perform-
ance was lower than that of other employees and Shreeve's
attendance record was poor. At the hearing testimony was
also adduced that Shreeve caused an unsafe condition on
the last day of his employment by leaving tools on his
scaffold at times when he stepped off the scaffold during
the day.
I will treat with each of these defenses, seriatim.
15 Shreeve testified that the termination of other people was also
discussed I so find According to Respondent's attendance records,
introduced at the hearing, no other employees hired by Wray for the
Ralston Purina project were discharged before September 25, 1973. I also so
find Baker admitted in his testimony that he told Barnecut on a couple of
occasions that Jansen wanted Shreeve and others discharged Jansen
admitted in his testimony that there were three to five individuals besides
Shreeve, whom Respondent desired to discharge at that time
16 These findings are based on the credible testimony of Shreeve in this
regard and are not essentially disputed by the testimony of Baker, Jansen,
or Wray
1. The allegation that Shreeve was seen on a
number of occasions not working when he should
have been
Budgen (of Rosendahl), who made frequent inspections
of the jobsite each day, and Baker and Jansen all observed
Shreeve not working at times he should have been and
Budgen frequently complained to Respondent about this
fact.18
I do not , however , deem it necessary to go into extensive
detail about the times when this occurred or what, if
anything, Respondent 's officials did about it. For Budgen
also complained about other Respondent employees
standing around not working and Baker and Jansen, as
they both admitted, considered discharging some three to
five other Respondent employees at the time Shreeve was
discharged for the reason, as Jansen described it, that "they
were not giving us a fair shake ." Yet the only employee
discharged during the period August 1 to September 25,
1973 (a date 2 1/2 weeks after Shreeve 's discharge), was
Shreeve.
Since other employees were not discharged for standing
around idle I do not believe that this was a motivating
factor in Shreeve's discharge. Moreover, this matter was
not specified in Shreeve 's discharge notice and was not
mentioned to him at the time of his discharge . Nor was it
mentioned , specifically , when Shreeve 's termination and
the possible termination of other Respondent employees
was discussed at the meeting in the union office , previously
mentioned, which took place on the Tuesday or Wednes-
day after Shreeve's discharge and was attended by
representatives of Respondent and Bricker , Barnecut, and
Shreeve.19
2. Shreeve's failure to wear a hard hat at all
times
I have already found that Shreeve did not wear a hard
hat at all times on the job. I find, however, that this was not
a motivating factor in his discharge for, again , it was not
mentioned at the aforementioned meeting in Bricker's
office, which occurred after Shreeve 's discharge , nor does it
literally relate to the generic reason reflected on Shreeve's
discharge slip; i .e., "work unsatisfactory." Moreover, Baker
admitted that after warning Shreeve that Shreeve would be
fired the next time he was found at the site without his hard
hat on, Shreeve nonetheless continued this practice and
Baker was aware of it.
3. Shreeve allegedly spent too long working on
the parking lot lighting project
I reject this as being a causative factor in Shreeve's
19 Baker credibly so testified
18 Budgen , Baker, and Jansen , variously, credibly so testified. Shreeve
testified that no complaints were made to him by Jansen , Baker, or
Respondent's foreman that his "work" was "unsatisfactory"
19 Shreeve credibly testified that the only matters mentioned by officials
of Respondent at this meeting were Shreeve 's standing around by the
gangbox on the morning of his discharge-which will be separately
considered here, as it is indeed separately argued in Respondent's
brief-and the length of time Shreeve took for the warehouse door job. The
testimony of Respondent's witnesses does not essentially dispute Shreeve's
testimony as to what was said by Respondent's officials at this meeting.
WRAY ELECTRIC CONTRACTING, INC.
discharge. Again it was not mentioned in the postdischarge
meeting at Bricker's office. Further, I note that his was the
second project on which Shreeve worked (the first being a
project inside the building assigned to Shreeve by Vargo on
Shreeve's first day). Shreeve handled this assignment
during the first week of his employment.20 About the time
this job was completed, Union Steward Barnecut confront-
ed Shreeve's foremen, Vargo and Knapp, and also Baker
and asked them about Shreeve's performance. None made
any complaint about Shreeve at that time.21
4. Shreeve allegedly took too long installing
wiring on the overhead warehouse door
In all the circumstances, I reject this as being a reason
for Shreeve's discharge, although this matter was, in fact,
mentioned at the instant meeting in Bricker's office and,
according to Jansen, it was also made the subject of a time
study by Respondent to evaluate Shreeve's performance
against the normal labor cost for this type of job.
My bases for rejecting this defense are several.
Primarily, I assign no weight to the testimony in respect
to this time study. The claimed time study itself, which
would have been the strongest evidence of its conclusions,
was not produced at the hearing thus creating the
inference, which I draw, that it would not support the
testimony22 nor was it mentioned to Shreeve until after his
discharge. Further there is no explanation in the record
how Shreeve's aliquot portion of the job could be measured
since he and another journeyman were carrying out the
assignment together.23
Finally, I reject this as being a reason for Shreeve's
discharge, in the circumstances, because there is no
showing that any action was taken against Shreeve nor any
warning given to him at the time, whereas he was given at
least two assignments thereafter-installing rods and plates
and, at the end of his employment, the job on the scaffold.
5. Shreeve's standing around the gang box for an
hour on the last day of his employment
All things considered, I also reject this as being a reason
for Shreeve's discharge. For Vargo likewise stood around
for all but about 10 to 15 minutes of the time Shreeve stood
there. Vargo, who was discharged sometime after Septem-
ber 25, 1973, was not terminated for this reason , as Baker
admitted.24 Yet, according to Baker, Vargo had a key to
the gang box. Shreeve's failure to get the key from Vargo is
explained by Shreeve's credible testimony that Vargo told
Shreeve on that last morning that he, Vargo, did not have
the key (regardless whether Vargo's statement to Shreeve
may have been inaccurate). Jansen testified that all the
foremen have keys to this box and that employees
20 Baker so admitted
21 Barnecut credibly so testified To the extent Baker's testimony is to the
contrary, I do not credit it
22 Cf Interstate Circuit v US, 306 U.S 208, 226
23 Jansen admitted that Shreeve and anotherjourneyman worked on this
assignment
24 Baker testified that Budgen told Baker that he, Budgen , would not
approve any timesheet after September 7, 1973, which had Shreeve's name
on it Budgen so informed Baker, according to Baker, when Budgen
reported to Baker that he saw Shreeve standing around the gang box for an
761
normally go to one of them to get the key, if necessary.
However, if this be true, and although Shreeve did not seek
out another foreman to obtain the key on that day, neither
did Vargo, who had just been demoted to journeyman
status, the same status Shreeve had at the time.
6. The two productivity studies which, allegedly,
showed that Shreeve 's performance was below
standard
I likewise reject these alleged productivity studies as
being a motivating factor in Shreeve's discharge. The
claimed productivity study in connection with the ware-
house door has already been discussed, supra. The other
study, according to Jansen, related to Shreeve's perform-
ance installing rods and plates. I attach no significance to
Jansen's testimony in connection with the latter study
which, according to Jansen, was made about a week or 10
days before Shreeve's discharge, for the reasons that it was
not mentioned to Shreeve at the time, was not mentioned,
specifically, at the meeting in Bricker's office, and was, in
any event, not produced in evidence.
7. Shreeve's claimed poor attendance record
I likewise reject this as a reason for Shreeve's discharge.
It does not logically relate to "unsatisfactory work," the
only reason appearing on Shreeve's discharge slip, nor was
it mentioned at the meeting in Bncker's office. All
absences were reported in advance by Shreeve to Barnecut
or a foreman, which was the custom at the job.25 Finally, a
number of employees worked less than 40 hours in several
weeks during the time of Shreeve's employment, and
Mosley, particularly, who was still employed at the time of
the hearing, had a worse attendance record than Shreeve's
during the same period.
8. The claim that Shreeve left tools on the
scaffold in an unsafe manner on the last day of
his employment
Baker admitted that this was not a reason for Shreeve's
discharge.
D. Concluding Findings
I have rejected each of the reasons offered by Respon-
dent as being the motivating causation of its discharge of
Shreeve. I find rather that Shreeve was discharged because
he filed a complaint with OSHA, asserting that conditions
of employment at the Ralston Purina project at Lancaster,
Ohio, herein involved, violated Federal safety regulations.
hour on that day. In this regard , Budgen testified simply that he saw
Shreeve standing at the gang box "one morning" for I hour and 10 minutes
and that he discussed Shreeve 's behavior with officials of Respondent on
several occasions . However, even if Budgen gave the ultimatum , as Baker
testified , this would not explain Respondent 's failure to take similar action
against Vargo, even though Baker was aware that both Shreeve and Vargo
were standing around not working on that occasion And , according to
Baker, Budgen could not be expected to tolerate "two guys just standing
there "
25 Shreeve credibly so testified
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The very timing of Shreeve's discharge suggests that this
was the reason for it.26 Thus, on that same last day a copy
of Shreeve's complaint to OSHA was given to Jansen by
Rosendahl. Jansen was also aware that Earl Maxy, the
compliance officer from OSHA, was at the site that day
and that Jansen was supposed to be available to make an
inspection tour with Maxy. Action was taken by Respon-
dent to put a railing on Shreeve's scaffold as the result of
the visitation by the OSHA representative. That all this
was a matter of concern to Respondent and particularly
Jansen is demonstrated by Jansen's calling of Barnecut's
attention to it at the time 27
Respondent defends that it did not learn that Shreeve
was the author of the OSHA complaint until the Tuesday
or Wednesday following Shreeve's discharge. I have
rejected this defense based on testimony of Shreeve and
Bamecut , which I have credited over that of Baker, that
Shreeve announced his safety mission at the site to Baker
on the day Shreeve was hired.
Respondent further defends, however, that if Shreeve in
truth so informed Baker at the outset, there would have
been no purpose in Shreeve's failure to put his name on the
OSHA complaint. I likewise reject this contention. For,
whatever his motives, the law gave Shreeve the right to
remain anonymous and he elected to do so. But the
complaint to OSHA, in any event, stated that Rosendahl
(and not Respondent) was responsible for the claimed
safety violations.28 And it does not appear that Shreeve
ever informed officials of Rosendahl of his intention to
examine safety conditions at the site. Shreeve may well
have had reason to fear Rosendahl, because, from the first
day of Shreeve's employment, the omnipresent Budgen
observed Shreeve walking around with a pad and pencil in
his hand and Budgen promptly called this matter to
Baker's attention before the latter had Union Steward
Barnecut take care of it. Shreeve did not prepare the
complaint until that night or the next. This same incident
involving Shreeve's perambulation with a pad and pencil
belies Respondent's claim that it did not know that Shreeve
was the author of the OSHA complaint. Thus, even if
Shreeve had not told Baker of Shreeve's safety mission on
the first day of Shreeve's employment, Baker promptly
learned, and in fact observed, that Shreeve was walking
about with his pad and pencil talking to employees on that
very afternoon.
Later in Shreeve's employment, whenever Baker had
occasion to speak to Shreeve about the latter's failure to
wear his safety hat, Shreeve told Baker that "under the
safety Act" he did not have to wear a hard hat because the
ceiling was not going to fall in on him. Hence Shreeve's
expertise in safety matters-or claims of such experti-
se-were well known to Respondent before Shreeve's
discharge.
In addition to the timing of Shreeve's discharge, the
26 See, e.g., Pine Products Corporation, 153 NLRB 581, enfd 361 F.2d
480 (C.A 9, 1966); McCormick Longmeadow Stone, Inc., 155 NLRB 577,
enfd . 374 F 2d 81 (C.A 1, 1967); N L. R B v. Montgomery Ward & Co, Inc,
242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957)
27 Even if I were to accept Jansen's version of his exchange with
Barnecut on this occasion-which I have not done-the facts would still
remain that Jansen raised the matter with Barnecut and was interested in
the identity of the individual who filed the complaint
multiplicity of other reasons now offered by Respondent to
explain its motivation for terminating Shreeve-which
were not mentioned to Shreeve when he was given his
termination slip (which merely stated "unsatisfactory
work") and some of which even likewise not mentioned at
the meeting several days later in Bricker's office-further
suggest that the reason for discharge was his filing of the
complaint with OSHA rather than this litany of complaints
against him, many belatedly offered.29
The question then becomes whether Shreeve's act in
filing the complaint with OSHA is a concerted or union
activity. I conclude that it is.
The OSHA complaint dealt with safety conditions
affecting all of the Union's members on the job. Indeed,
Shreeve's investigation of these safety conditions, which
culminated in his filing of that complaint, was initiated at
the request of the Union's business manager, Bricker.
Bricker told Shreeve that union members had grieved to
Bricker about safety conditions at the site-as in fact, they
had-hence Bricker was sending Shreeve to this job as the
Union's representative, with a purpose of examining these
conditions. And, as I have found, Shreeve informed Baker
on the first day of Shreeve's employment that Shreeve was
undertaking this mission at Bricker's behest.
Bricker further told Shreeve, if Shreeve found any
violations, to take action by filing a report with OSHA.m
Such a report would necessarily seek to vindicate the
complaints to Bucker by union members about safety
conditions at the jobsite and, if these conditions were
improved after investigation by OSHA, such a result would
benefit all the Union's members working on the job.
I therefore conclude that Respondent discharged
Shreeve because Shreeve filed a complaint with OSHA,
and that Respondent thereby violated, and continues to
violate, Section 8(a)(1) and (3) of the Act.31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Respondent described
in section I, above, have a close , intimate , and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving findings of interference,
restraint, and coercion and unlawful discharge in violation
of Section 8(a)(1) and (3) of the Act. This will require
Respondent to cease and desist from the unfair labor
practices found and to post a notice to that effect which
will also state the affirmative action Respondent will be
28 The complaint must have first been served on Rosendahl because
Rosendahl gave Baker the copy Respondent had.
29 Fotomat Corporation, 207 NLRB No. 65.
30 The collective-bargaining agreement between Respondent and the
Union acknowledges the Union's legitimate interest in the safety conditions
under which its members work See art . V, sec . 2, thereof.
31 C & I Air Conditioning, Inc., McKeon Construction, 193 NLRB 911; cf.
Lenkurt Electric Co., Inc, 182 NLRB 510 , enfd 459 F .2d 635 (C.A. 9. 1972).
WRAY ELECTRIC CONTRACTING, INC. 763
required to take to remedy its discharge of Wilbur A.
Shreeve . Thus, Respondent will be required to offer
Shreeve reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent
position , without prejudice to his seniority or other rights
or privileges. He will be made whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he would have earned from 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, with 6 percent
interest thereon as prescribed by Isis Plumbing & Heating
Co., 138 NLRB 716.
It will also be recommended, in view of the nature of the
unfair labor practices in which Respondent has engaged
(see N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536), that
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is a labor organization all within the meaning of the Act.
2. By discharging Wilbur A. Shreeve because of his
activities on behalf of the Union, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
make him whole for any loss of pay he may have suffered
as the result of the discriminatory discharge in the manner
set forth in The Remedy section of the Administrative Law
Judge's Decision 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,
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 Lancaster, Ohio, copies
of the attached notice marked "Appendix."33 Copies of
this notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days of the receipt of this Order, what steps the
Respondent has taken to comply herewith.
32 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, recommendations , 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.
33 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."
APPENDIX
ORDER 32
Respondent, Wray Electric Contracting, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities in behalf
of, Local Union No. 683 , International Brotherhood of
Electrical Workers, or any other labor organization, by
discriminating in regard to hire and tenure of employment
or in any other manner in regard to any term or condition
of employment of any of Respondent's employees in order
to discourage union membership or union or other
concerted activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent such rights may
be affected by an agreement requiring membership in a
labor organization, as authorized in Section 8(a)(3) of the
Act, as amended.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Wilbur A. Shreeve immediate and full reinstate-
ment to his former position or, if that position no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Wray Electric
Contracting, Inc., have violated the National Labor
Relations Act and we have been ordered to post this
notice.
The National Labor Relations Act, gives you, as
employees, certain rights, including the right to self-
organization , to form, join, or help unions , and to bargain
through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT do anything which interferes with your
rights above except to the extent that said rights are
affected by an agreement requiring membership in a
labor organization, as authorized in Section 8(a)(3) of
the Act, as amended.
WE WILL NOT discharge you or take other reprisal
action against you, because you engage in legally
protected concerted activities or because you join,
support, or give assistance to Local Union No. 683,
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, or
any other union.
WE WILL offer to reinstate Wilbur A. Shreeve to his
job or, if that job no longer exists, to a substantially
equivalent position, with full seniority and all other
rights and privileges as the Board has found that he was
discharged because he engaged in protected concerted
activities on behalf of the above-named Union.
WE WILL also make up all pay Wilbur A. Shreeve
lost because of his discharge with 6 percent interest.
WRAY ELECTRIC
CONTRACTING, INC.
(Employer)
Dated By
(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 directed to the Board 's Office,
Federal Office Building, Room 2407 , Suite 3003 , 550 Main
Street, Cincinnati , Ohio 45202 , Telephone 513-684-3686.