Atlas Railroad Construction Co.

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1096 (N.L.R.B. 1974)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlas Railroad Construction Company and Local 935,
Laborers' International Union of North America,
AFL-CIO. Case 8-CA-7773
May 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 17, 1974, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
General Counsel filed exceptions and supporting
brief, and the Respondent 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, as modified
herein.
We find, in agreement with the Administrative Law
Judge, that the General Counsel has not met his
burden of proof that Respondent discriminatorily
discharged the four alleged discriminatees; in so
finding, however, we do not adopt his rationale. The
prerequisite for finding a violation of Section 8(a)(3)
in a case like this is union animus or discriminatory
motivation. Such motivation may be found on the
basis of direct or circumstantial evidence; thus,
where warranted by the facts, discriminatory motiva-
tion may be inferred. However, on this record, even
assuming that Nate Daniels, who allegedly dis-
charged the four alleged discriminatees,' was a
supervisor or agent of Respondent, an issue we find
unnecessary to reach in view of our disposition
herein, we are unable to find either by direct
evidence or inference that Respondent discharged
the employees because of their union activity.
As the Administrative Law Judge correctly pointed
out, not only is the Respondent not antiunion but it
has dealt with the Charging Party and other Laborers
i The Administrative Law Judge found that Nate Daniels was not a
supervisor or agent of Respondent and dismissed the complaint primarily
on that ground
2 The Charging Party contends that Respondent's union animus was
against it , Local 935, because if the International decided Local 935's
contract and not Local 1274s contract applied to the Youngstown Sheet
and Copperweld jobs it would cost Respondent substantially more to hire
laborers However , even if this were accepted as true with regard to
Respondent , its officers , and high echelon supervisors , the same motivation
cannot be ascribed to Nate Daniels For if the Local 935 contract were
applied instead of Local 1274's, Nate Daniels rate of pay would have been
approximately $3 per hour more In sum , unlike Respondent, it was in Nate
locals for years. In fact, on the very day the alleged
discriminatees were purportedly discharged, the
Respondent discussed and peacefully resolved with
the Charging Party the issue of which Laborers
contract applied to the Youngstown Sheet and
Copperweld jobs, from which the four employees
were allegedly discharged. And this issue was
resolved before the discharges in issue occurred.
Moreover, there is even less evidence from which
to infer that Nate Daniels discharged the employees
for discriminatory reasons. Nate Daniels, as a
"pusher," was either a member of the Laborers or
had signed a Local 1274 authorization card when he
signed on for the Copperweld job; his rate of pay was
determined by the Local 1274 contract.2 When the
four alleged discriminatees left the job at 10:30 a.m.
to go to the union hall, Nate Daniels, although he
had earlier said he would drive them there himself,
told the employees, in effect, they did not have
permission to leave the job.3 There is no evidence of
union animus on the part of Nate Daniels, who
allegedly discharged the employees; in our opinion it
is just as reasonable to infer that Nate Daniels was
concerned about the fact that the four employees
were leaving the job at a time when he as "pusher"
could not afford to lose a full crew of workers.4 Put
differently, it is more likely that Nate Daniels
discharged the four discriminatees, assuming he had
the authority to do so, because they had left the job
without permission rather than for some discrimina-
tory reason.5
Nor on this record are we able to find that
Respondent ratified Nate Daniels' termination of the
four employees for antiunion or other reasons. In the
first place, as noted supra, we have no grounds for
inferring such animus by Respondent. But, more
significantly, we have no basis for finding Respon-
dent was even aware that Nate Daniels had dis-
charged the four employees. Stout, Respondent's vice
president in charge of the Copperweld and Youngs-
town Sheet jobs, testified without contradiction that
he had never instructed anyone to discharge the
employees and that he was not even aware of the
purported discharges until he received a copy of the
charge from the NLRB. Moreover, when Stout left
the union hall on July 5 after resolving the issue of
Daniels' interest that the Local 935 contract rates be applied to the
Copperweld Job
3 Robert Daniels testified that when the four told Nate they were going
to the union hall Nate asked if the Union was paying their salary and said,
"If you go don ' t come back "
4 It should be noted that because it had to complete the Copperweld job
while the Copperweld employees were on vacation , Respondent was
working on three shifts , around the clock Faced with this time element,
having enough employees to man full crews was a necessity
5 In this connection it seems highly unlikely that Nate Daniels who had
worked under Laborers contracts for many years would possibly jeopardize
his future employment by alienating the Union.
210 NLRB No. 164
ATLAS RAILROAD CONSTRUCTION CO. 1097
which contract would govern the jobs, he saw the
four employees but said nothing about their being
discharged.
Likewise, according to Respondent's customary
practice the alleged discriminatees did not receive
final payment "field checks" at the time of discharge
or shortly thereafter, as is normally the case when
employees are discharged. Rather, they received
regular weekly pay checks on July 5 or 6 and on July
12 or 13.6
The Charging Party contends, however, that
Stout's claim of ignorance with respect to the
discharges is incredible since the four men composed
the entire crew working under Nate Daniels and it is
highly improbable that their absence would not be
called to Stout's attention . However , given the nature
of the job and the employees involved, the hiring
procedures employed by Respondent, and the time
limitation on the job , it is not clear that their absence
would have been called to Stout's attention. Respon-
dent had 120 employees at Copperweld. Stout
testified without contradiction that absenteeism was
very high and that most of the men on such jobs
come and go-they work for a few days, leave for a
few days, and return. Respondent's employees do not
generally report when they will be absent from
work.? In sum , there is no record evidence which
shows that Stout or any other of Respondent's
officials ratified the Nate Daniels' termination of the
four employees for any reason.
In conclusion, we have no basis on the record
before us for finding that the four discriminatees
were discharged, if in fact they were, because of
union activity or any other protected concerted
activity.8 As the General Counsel has not met his
burden of proof, we shall accordingly dismiss the
complaint.
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 the complaint be dismissed in its
entirety.
on July 5. Robert E . Daniels began on June 27 and worked 8 hours; he
worked I I hours on June 28 , 6 hours on June 29 , did not show on June 30,
and July 1, worked 21 hours on July 2 , 5 hours on July 3, did not show on
July 4 , and worked 4 hours on July 5. Lowery Daniels worked from June 27
to July 5 on a daily basis except for July 4.
8 Although the complaint alleged alternatively that the discharges were
violative of Sec . 8(a)(I) (other concerted activity ) the case was tried
primarily on an 8(a)(3) theory . However , the alleged discriminatees
apparently had no complaint with regard to their wages or other conditions
of employment . They merely left the Jobsite , without permission, at the
Union agent's request that they come to the union hall to review the
contract , although at the time the request was made the union agent did not
even know which contract would be applicable . On this record we are
unable to find that the alleged discnmmatees' unauthorized absence from
their work was protected concerted activity. As with the 8(aX3) allegation
the General Counsel has not met his burden of proof.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Judge:
Upon a charge filed on July 12, 1973, by Local 935,
Laborers' International Union of North America,
AFL-CIO, herein called Local 935 or the Charging Party,
the Regional Director for Region 8 of the National Labor
Relations Board , herein called the Board , issued a
complaint on August 24, 1973, on behalf of the General
Counsel of the Board, against Atlas Railroad Construction
Company, herein called the Respondent or Atlas, alleging
violations of Section 8(aX3) and ( 1) of the National Labor
Relations Act, herein called the Act. The complaint alleges,
in substance , that the Respondent terminated the employ-
ment of four employees and failed and refused to reinstate
them until a certain date because they had engaged in
union or other concerted , protected activities . In its duly
filed answer , the Respondent, while admitting certain
allegations of the complaint , denied the commission of any
unfair labor practices in that it did not , in fact, terminate
the employment of the four individuals named in the
complaint.
Pursuant to notice , a hearing in this case was held before
me at Warren, Ohio , on October 23, 1973 . All parties were
represented and were afforded full opportunity to be
heard , to introduce relevant evidence , to present oral
argument, and to file briefs . Oral argument was waived.
Briefs were filed by counsel for the Respondent and the
Charging Party. Upon consideration of the entire record
herein , and upon my observation of each witness appear-
ing before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
6 On the other hand Daniel Evans, one of the alleged discriminatees,
who returned to work on July 19 and was discharged on July 20 for reasons
not alleged to be discriminatory , was paid off on July 20 by final payment
"field check "
r For example the work records of the four alleged discriminatees are as
follows: Daniel Evans was hired on June 19 and worked 6 hours ; on June
20 through June 25 he "did not show" up for work, he worked 8 hours on
June 26 but did not show on June 27; he worked I I hours on June 28 and 6
hours on June 29 but did not show on June 30, July 1, or July 2; on July 3
he worked 9 hours, "did not show" on July 4, and worked 4 hours on July 5
James Magby began on June 28 and worked I I hours, he worked 6 hours
on June 29, 11-1/2 hours on June 30, 14 hours on July 1, "did not show" on
July 2, worked 9 hours on July 3, did not show July 4, and worked 4 hours
The Respondent, a Pennsylvania corporation, with its
principal office and place of business in Bentleyville,
Pennsylvania , is engaged in railroad track construction,
rehabilitation and maintenance throughout the eastern half
of the United States . During the year immediately
preceding the issuance of the complaint herein, a repre-
sentative period, the Respondent has been engaged in
construction projects at cites located in Warren and
Youngstown, Ohio, and in the course of conducting such
operations at said locations received material valued in
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of $50,000 , directly from points located outside the
State of Ohio.
It is admitted, and I find , that the Respondent is an
Employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Local 935, the Charging
Party, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As noted above, the Respondent is engaged in the
business of installing, maintaining, and repairing railroad
trackage. Much of its work is performed for large industrial
plants which have railroad tracks within their facilities.
About half of the Respondent's work is performed in the
construction of new trackage and the other half is
performed in maintenance and repair. In its operations, the
Respondent normally brings to each job its own job
superintendents, individuals who have been with the
Respondent for some years and who understand all of the
aspects of track laying and track maintenance and repair.
In addition, many of the older hands who have worked
with Respondent for some years will also follow the
Respondent from job to job. These individuals are skilled
employees although not of the caliber of job superintend-
ents . In the area of the various jobsites , the Respondent
either obtains employees from Laborers' International
Union locals or has its superintendents , who are responsi-
ble for both hiring and discharge, among their other duties,
recruit employees who reside in the area. Some of the
superintendents , from time to time , instruct the more
skilled and older employees to bring various individuals,
whom these employees may know, to the various jobsites
for hiring by the superintendents.
In May 1973,1 the Respondent contracted to perform
repair and maintenance work at the plants of Copperweld
Specialty Steel Company in Warren, Ohio, and at
Youngstown Sheet and Tube Company in Youngstown,
Ohio. The Respondent had operated in past years in this
area and when it had worked in Trumbull County, in
which Warren is located, had been a party to a labor
agreement with Local 935, the Charging Party herein.
However, on May 31, before actually starting work on the
Copperweld and the Youngstown Sheet jobs, the Respon-
dent entered into an agreement with Local 1274, of
Springfield, Illinois. This agreement, negotiated by William
M. Stout, vice president of the Respondent, is an
adaptation of the National Rail Maintenance Agreement
provided by the Laborers' International Union and,
evidently, entered into between the various rail mainte-
nance contractors and locals. The work assumed by the
i All dates herein are in 1973 unless otherwise noted.
2 All of the foregoing from the credited testimony of William Stout
Stout's forthright attitude and demeanor in answering the questions put to
him by both his own counsel and on cross-examination convinces me that
Stout was endeavoring in all of his testimony to portray events as they
actually occurred. Additionally, much of what Stout testified to was
Respondent for both Copperweld and Youngstown Sheet
was maintenance work, as contrasted to new construction
work which was the work performed in earlier years by the
Respondent under contract with Local 935. It is also
evident, from the record herein, that the maintenance
contract with Local 1274 provided for lower wage rates
than the construction contract offered by Local 935.2
Thus, when the Respondent began the manning of the
Copperweld and Youngstown Sheet jobs, it offered the
rates set forth in adaptation of the National Rail
Maintenance Agreement entered into with Local 1274.
However, when work on the jobs started up, especially the
Copperweld work, Edward B. Garvin, the business
manager of Local 935, saw Stout who told Garvin about
the Respondent's contract with Local 1274. Thereupon,
Garvin requested that Stout come down to the Union's
business office in Warren in order to talk the matter over
with an International representative. Garvin, on behalf of
Local 935, contended that its contract was to be applied;
Stout contended that the Local 1274 International contract
had to be honored. In any event, a meeting was called for
July 5, as set forth below.
Before that meeting, however, Nathaniel Daniels, an old
and experienced employee of the Respondent, whom the
Respondent termed a "pusher" or "straw boss," was asked
by Job Superintendent James A. Rupert to procure
employees to work at the jobs. As a result, Nathaniel
Daniels, herein referred to as Nate, obtained for the
Copperweld job his nephews, Lowery D. Daniels, and
Robert E. Daniels. Before bringing them down to the job,
Nate Daniels told his nephews that they would receive the
maintenance rate of $4.35 an hour, but did not explain
further details to them. This was evidently acceptable to
the two men and they accompanied Nate down to the job
where they were formally hired and signed in by Vice
President Stout, who had them sign The necessary W-4 and
other required forms and also had them each sign a form
applying for membership in Local 1274. This form also
authorized the said local to represent them and also
authorized the Respondent to make dues deductions on
behalf of Local 1274. The hiring of Lowery Daniels and
Robert Daniels took place on June 27. It should be noted
in connection with such hiring that Lowery Daniels had
worked for the Respondent at various jobs in various parts
of the country for 6 years off and on preceding the date of
the latest hiring. Thus, Lowery Daniels at least, was well
acquainted with the manner in which the Respondent
operated at its various jobs. Additionally, Robert Daniels
had also worked for the Respondent at a prior time.
Additionally, Job Superintendent Rupert hired Daniel
Evans on June 19 and James Magby on June 27, at the
Younstown Sheet job. However, on July 5, Evans, Magby,
corroborated by witnesses called by the General Counsel and the
Respondent Moreover, careful examination of Stout's testimony reveals no
evident inconsistencies or apparent subterfuges normally contained in the
testimony of witnesses who disregard the truth or whose recollection is
faulty
ATLAS RAILROAD CONSTRUCTION CO. 1099
and Robert and Lowery Daniels were all working at the
Copperweld job in Warren.3
As noted above, Local 935 Business Agent Garvin had
arranged a meeting at the Copperweld plant with William
Stout and two International union officials, Lawrence O.
Scott and Thomas Arconti. However, when these three
individuals representing the Union came to the Copper-
weld jobsite early on the morning of July 5, William Stout
was not present because he had overslept. When the Union
representatives observed some men working and asked
who was in charge, Nate Daniels spoke up and said he was
in charge. However, the record reveals that what he was
,.in charge" of was a work gang consisting of himself, the
four alleged discriminatees herein, namely Evans, Magby
and the two Daniels' brothers and one other employee.
Arconti asked Nate Daniels to have the men come down to
the union hall for a meeting so he could explain to them
their contract rights. Nathaniel Daniels replied that there
was some slag on a track that had to be moved or the mill
could not operate. Arconti asked how long it would take to
move the slag and Daniels replied that it would take a
couple of hours. Arconti then said, "Okay, we will let you
go ahead and move the slag. Will you see that the men go
down to the union hall at 11 o'clock?" Daniels answered,
"I will not only see that they come down; I will bring them
down."
Thereafter, the three union representatives, Garvin,
Scott, and Arconti went to the Youngstown Sheet job
where they contacted the representatives of the Youngs-
town and Laborers' Union local and all of them then
proceeded back to the union hall of Local 935, in Warren.
When they arrived there they found William Stout, who
apologized for having overslept. All of these individuals
then proceeded into the union office on the second floor
and had a meeting concerning which contract should
govern the jobs at Copperweld and Youngstown Sheet.
Meanwhile, the four alleged discriminatees, Evans,
Magby, and the two Daniels brothers, at approximately
10:30 a.m. on the morning of July 5, in accordance with
the agreement made by Nathaniel Daniels with the union
officials, left the job and proceeded to go to the union hall.
Before they left, Lowery Daniels approached Job Superin-
tendent John Topolski, and asked if the latter was going to
the union hall. Topolski's answer was a question to Lowery
Daniels as to whether the Union was paying the employ-
ees' wages. Lowery Daniels then went to Nate Daniels.
Nate Daniels answered Lowery in much the same manner
as did Topolski. When Lowery Daniels reminded Nate
Daniels what the latter had told the union representatives
earlier that day, Nathaniel Daniels answered that he did
not care, he was only worried about his money, that he was
getting paid anyway. Lowery Daniels then left the job with
James Magby and, evidently, Robert Daniels and Daniel
Evans followed.
When the four employees arrived at the union hall they
were told by the secretary to wait downstairs, that they
3 All of the foregoing from credited portions of the testimony of Robert
Daniels , Lowery Daniels, James Rupert and William Stout
4 All of the foregoing from credited portions of the testimony of Lowery
Daniels, Robert Daniels, and William Stout
5 All of the foregoing from credited testimony of Lowery Daniels as
supported by the testimony of Robert Daniels
would be called when the officials were ready for them.
Evidently the meeting between Stout and the union
officials lasted until approximately 4 p.m. When Stout
came out of the meeting and down the steps of the union
hall into the waiting room he saw the four alleged
discriminatees. Stout then asked the four something to the
effect of whether they were all off that day. According to
Lowery Daniels, as he was proceeding to the union hall
earlier that day, Stout passed them in his car and saw the
men walking toward the union hall. Stout, in testifying,
stated that he could not remember seeing the men but that
he could have inasmuch as he did drive down that street on
his way to the union hall.4
In any event, after Stout left the union hall the men were
called into a meeting with the union officials and it was
explained to them what rights they had under the contract
which was sanctioned by the International and which the
Respondent had entered into with the Springfield, Illinois,
Local No. 1274. They were told that it was decided at the
meeting between Stout and the union officials that that
contract was the one which would prevail for the two jobs,
at least until a ruling was made by the Laborers'
International Union. Before the four employees left the
hall, however, International Representative Arconti told
them to report to work the following morning. Arconti
further instructed the four that if there was any trouble to
get in touch with Garvin at the union hall and that Garvin
would then contact Arconti.
After leaving the union hall the four employees went to
Nathaniel Daniels' house because the latter had told the
employees that he would pick up their paychecks for them.
However, on the way, they saw Nate Daniels going to
employee Cleveland Freeman's home and they followed
him there. When they arrived at Freeman's home,
Nathaniel Daniels told them that he wanted their helmets
or hard hats "because Billy Stout didn't want to see our
faces on the job any more." When the men asked the
reason for this, Nate Daniels told them it was because they
had walked off the job. When Lowery Daniels told Nate
that the latter had given them permission to go, Nate told
the employees, "I am not worried about it." Then he
repeated his earlier statement to the effect that he did not
care because he would get his money anyway.5
What happened next is somewhat unclear from the
record, but from a reconstruction of events as garnered
from the testimony of Lowery and Robert Daniels and Job
Superintendent James Rupert, it is clear that Nathaniel
Daniels did not have the men's paychecks with him at the
time he ordered them to turn in their hard hats. Either that
evening or the next evening,6 the men were given their
paychecks for the week preceding the week in which they
were allegedly discharged. This was a regular paycheck
and not a final paycheck. According to the testimony of
both Stout and Rupert, whom I fully credit in this respect,
and whose testimony was supported at least in part by that
of Robert Daniels, it was the custom of job superintend-
6 Although there is a conflict in the testimony of the Daniels' brothers as
contrasted with the testimony of Rupert as to whether the events following
took place on the same day, Thursday, July 5, or the following day, Friday,
July 6, the determination of the exact date upon which the men were paid is
not critical to the resolution of the issues presented
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents to issue field checks to any man who was discharged.
In other words, any employee who is discharged is paid in
full by the Company by issuance by a job superintendent
of all of the monies due an employee up to and including
the moment of discharge. The manner in which this is
done, according to Rupert and Stout, is that the job
superintendent, upon discharging an employee, calls the
home office of the Respondent to find out what deductions
are to be made from the employees' paycheck and then the
final amount is totaled and told to the superintendent who
immediately pays the discharged employee in full with a
field check for all salary and wages due the discharged
employees up to the moment of discharge. Rupert credibly
testified that this was not done in the case of the four
alleged discriminatees herein because, in fact, at the time
he gave them their weekly paychecks, either on Thursday
or Friday, July 5 or 6, he had not been informed that they
were discharged; he had not been told to discharge them,
nor has he ever been informed or told that these employees
were discharged. He further testified that he never
discharged these employees or told anyone to discharge
them or had any cause to do so except in the case of Daniel
Evans, who came back to work several weeks later and was
discharged by Rupert on July 20, for reasons not alleged to
be discriminatory.
The following Thursday or Friday, July 12 or 13, the
alleged discharges appeared at the jobsite and were paid
for the work performed the preceding week. They have
never been given a final discharge field check. According
to Rupert, whom I credit, the checks given to the alleged
discriminatees on Friday, July 13, were regular weekly
payroll checks sent from the home office and not final
payment field checks given to discharged employees.
Additionally, Vice President Stout testified, without con-
tradiction, that he had never given anyone instructions to
discharge the four alleged discriminatees and certainly did
not do so himself. In this respect he was supported by the
testimony of both Lowery Daniels and Robert Daniels
who admitted that when they saw Stout downstairs at the
union hall on July 5, the latter did not state anything about
the employees being discharged. Additionally, Rupert
testified, again without contradiction, that when he gave
the employees the checks on July 5 and again on July 13,
they did not give him any indication to the effect that
Nathaniel Daniels or anyone else had discharged them. It
should also be noted, in connection with the foregoing, that
Lowery Daniels had worked for the Respondent in a
number of places and on a number of jobs for some years
before the events herein. Accordingly, it must be assumed
that he would know the procedures and policies followed
by the Respondent in paying off discharged employees in
full with field checks upon their discharge.
B. The Status of Nathaniel Daniels
Because the Respondent 's primary defense is that the
Respondent never discharged the four alleged discrimina-
tees as alleged in the complaint , and because both Lowery
and Robert Daniels testified that they were discharged, as
heretofore set forth , by Nathaniel Daniels, it is necessary to
determine what status Nathaniel Daniels possessed at the
time he allegedly discharged the employees here involved.
Respondent denies that Nathaniel Daniels was in any way
a supervisor, and, furthermore, contends that if Nathaniel
Daniels did, in fact, inform the alleged discriminatees that
the Respondent no longer wanted to employ them, he did
so without authority because he was an employee and not a
supervisor within the meaning of the Act.
According to both Lowery and Robert Daniels, Nathan-
iel Daniels hired them and discharged them as set forth
above in this Decision. When questioned further as to the
duties and responsibilities of Nathaniel Daniels, both of
the Daniels brothers testified in almost exact terms. They
testified that Nathaniel Daniels instructed employees on
the manner in which the work was to be performed, told
them what to do on the job. They also explained that they
were in the crew headed by Nathaniel Daniels and that
Nathaniel Daniels, when in need of additional employees
in his crew, would go to another work crew on the jobsite
and tell men in the other work crew to come over to his
work crew to assist in performing his crew's work.
Additionally, Lowery Daniels testified that when a person
desired to leave early he would ask permission to leave of
Nathaniel Daniels. Lowery Daniels also testified that he
once observed Nate Daniels discharge an employee.
The foregoing constitutes the complete summation of the
testimony presented by the General Counsel in support of
the General Counsel's contention that Nathaniel Daniels
was a supervisor cloaked with the authority to hire and
discharge employees. However, the testimony presented by
the Respondent for the most part contradicts the foregoing
testimony. I have heretofore set forth the supervisory
hierarchy of the Respondent according to the testimony of
Vice President Stout. According to Stout, supported by Job
Superintendent Rupert, the only individuals employed by
the Respondent who have supervisory authority on the
jobs are the job superintendents whose duties consist of
directing the work to be done on each job, to recruit, hire
and discharge employees and generally run the job. With
regard to men occupying the status of Nathaniel Daniels,
Stout testified that they are considered "pushers" or "straw
bosses."
In testifying, Stout detailed the responsibilities of the
pushers or straw bosses such as Nathaniel Daniels. He
stated that Nate Daniels, and others like him, were manual
workers and were not in a responsible capacity. However,
these individuals are more skilled. For this reason, these
older, skilled employees received higher wage rates than
the other employees and do, in the course of their work,
explain what has to be done by way of job performance to
the other less skilled employees. In the course of his work,
an employee in this category, might say to an unskilled
employee, "come along and do this." However, these
skilled employees, like Daniels, possess no significant
directive or supervisory authority. They cannot hire, they
cannot fire and they cannot discipline.
In conjunction with the foregoing testimony, it should be
noted that both Lowery Daniels and Robert Daniels
testified that they had sought work at the Copperweld
jobsite before the work was begun and that Nathaniel
Daniels had told them that when the work commenced and
the Respondent was ready to hire he would bring them to
the job. This he did. However, Stout maintained that it was
ATLAS RAILROAD CONSTRUCTION CO.
he who formally hired the Daniels brothers at the
Copperweld jobsite. In connection therewith, as noted
above, both Stout and Rupert testified that when they are
ready to hire on the Respondent's jobs they often seek the
assistance of the pushers such as Nate Daniels in recruiting
men by asking these skilled employees to bring prospective
employees to the job. Both Stout and Rupert maintained
that the actual hiring is done either by Stout or one of the
job superintendents. It should also be noted that Stout
testified , without contradiction, that he assigned three
superintendents to the Copperweld job. Stout himself was
in overall charge of the work. With regard to work crews,
both of the Daniels brothers testified that there were only
four or at the most five men in the crew working with
Nathaniel Daniels and that this was the typical size of a
work crew.
The foregoing, in sum, is the testimony relied on by the
Respondent to support its contention that Nathaniel
Daniels was not a supervisor when and if he told the four
alleged dischargees to turn in their helmets and that Stout
did not want to see their faces on the job any more. It is the
burden of the General Counsel to prove by a preponder-
ance of the credible evidence that Nathaniel Daniels was a
supervisor vested with the authority to discharge the
alleged discriminatees. I have heretofore set forth the
testimony with regard to this issue presented by the
General Counsel and that presented by the Respondent. I
conclude that there is nothing in the testimony of either
Vice President Stout or Job Superintendent Rupert which
is necessarily inconsistent with the testimony of the
Daniels brothers. I further conclude that the testimony of
all of the witnesses with regard to this issue is credible.
Therefore, I find and conclude that although Nathaniel
Daniels did bring the Daniels brothers to the Copperweld
job, they were hired not by Nathaniel Daniels, but by Vice
President Stout. Furthermore, although I credit the Daniels
brothers to the effect that to an extent, at least, Nathaniel
Daniels directed that work, I further conclude that he did
so only as a more skilled employee in relation to less skilled
employees. The Board has long held that where an
experienced employee observes or reports or directs the
work of less skilled employees, such a relationship is the
hallmark of the skilled to the less skilled and is wholly
nonsupervisory.7 Nor is the fact that the senior man can,
under certain circumstances, permit an employee to take
time off of any great significance.8
Additionally, it would seem that the direction of the
work assigned to the less senior employees by the
employees in Nathaniel Daniel's category is of a routine
nature entailing little discretion and not requiring the use
of independent judgment.9 Finally, I note that the crews
7 Southern Bleachery and Print Works, Inc, 115 NLRB 787, 791-792;
Cumberland Shoe Corporation, 144 NLRB 1268, West Virginia Pulp and
Paper Co, 122 NLRB 738, 746
8 G C Murphy Co, 171 NLRB 370, 371, Carey Transportation, Inc, 119
NLRB 332, 334 Lowery Daniels did not indicate whether Nate Daniels
could permit an employee to leave work at Nate's discretion, or whether
Nate had to first consult with the job superintendent in charge
9 Phalo Plastics Corporation, 127 NLRB 1511, 1513, New England
Transportation Co, 90 NLRB 539, Capital Transit Company, 98 NLRB 141,
143-145
10 American Radiator and Standard Sanitary Corporation, 119 NLRB
171f, 1718
1101
working with each of the so-called straw bosses consist of
no more than four or five men. In view of the more or less
routine type of work involved and performed by the
employees in the work groups, the ratio of supervisors to
employees would seem to be quite out of line if it were to
be held that these straw bosses were supervisors.10
Thus, I find and conclude that the older, more skilled
employees such as Nathaniel Daniels, who are designated
as straw bosses or pushers by the Respondent are none
other than leadmen whom the Board normally does not
regard as supervisors.ii Thus, these more skilled employees
are neither in name or in substance genuine supervisors as
envisioned by the Act. Although these people are charged
with some leadership responsibilities, the direction of the
work, as noted above, is routine in nature and does not
require to any extent the use of independent judgment.
Accordingly, I conclude that these employees are not
supervisory and are not clothed with the authority to hire,
fire, or discharge any other employees.
The Charging Party presents one more argument with
regard to this supervisory issue . The Charging Party
contends that, as noted in the record, the Respondent
admits that it knows the whereabouts of Nathaniel Daniels
although Nathaniel Daniels left the Respondent's employ
because of illness sometime in August, 1973. The Charging
Party contends that, therefore, the testimony with regard to
the supervisory status of Nathaniel Daniels presented by
the Respondent cannot be credited because the Respon-
dent could have produced Nathaniel Daniels and his
testimony would have been the best testimony with regard
to his status as a supervisor or as a nonsupervisor.
However, Lowery Daniels was called in rebuttal by the
Respondent and testified that on the morning of the
hearing he was driven to the hearing in his automobile by
Nathaniel Daniels. Thus, it is clear and apparent that
Nathaniel Daniels was also equally available as a witness
to the Charging Party and to the General Counsel as well
as to the Respondent. If Nathaniel Daniels would have
testified differently than did Stout or Rupert, the Charging
Party, and more importantly, the General Counsel, could
have produced Daniels as a witness since it is the General
Counsel, as mentioned above, who has the burden of
proving that Nathaniel Daniels was a supervisor at the
time of the events involved in this proceeding. According-
ly, I reject the contention of the Charging Party and find
that the General Counsel has not met his burden of proof
with regard to this issue.i2
C. Concluding Findings
Having found that Nathaniel Daniels was not a
11 Southern Bleachery and Print Works, Inc, 115 N LR B 787, 791.
i2 With regard to the testimony of Lowery Daniels to the effect that a
year or so before the events with which this proceeding is concerned he
witnessed Nathaniel Daniels discharge an employee at another job of the
Respondent, I conclude that the testimony was too vague to be relied on as
evidence that Nathaniel Daniels had authority to discharge Lowery Daniels
did not mention either the job, the date, the name or place of the alleged
discharge of the other individual at that earlier time Nor did he testify as to
whether Nate Daniels exercised his own discretion at that time or was
merely a conduit for relaying the decision of a higher up Accordingly, I do
not give this testimony probative weight
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor and had no specific authority to discharge the
four alleged discriminatees, it becomes necessary to
determine whether, as contended by the Charging Party,
that he possessed apparent authority. Since I have found
that Nathaniel Daniels was not a supervisor, the Charging
Party's contention must, therefore, be based upon some
theory of agency. Of course, a supervisor is an agent.
However, an agent need not be a supervisor. And, an
apparent agent may be anyone who by the actions of the
Respondent is cloaked with apparent authority. Although
the Act, Section 2(13) has, to a certain extent, diminished
the strict requirement of authorization or ratification as
controlling as a test for apparent agency in proceedings
under the Act, I do not find that the case at bar presents
even the minimal requirements to satisfy the foregoing
Section of the Act and establish apparent authority on the
part of Nathaniel Daniels to discharge employees.
The mere fact that Nathaniel Daniels could direct the
work of fellow employees in a routine fashion or could,
possibly, permit an employee to leave the job early does
not cloak Nathaniel Daniels as an agent of the Respondent
with apparent authority to discharge employees. While
Section 2(13) of the Act diminishes the quantity and
quality of proof necessary to determine agency, it does not
confer upon a rank-and-file leadman the apparent authori-
ty to discharge employees when such a leadman takes it
upon himself without consultation with his superiors to
separate an employee from his employment. While Section
2(13) was designed to prevent employers from escaping
their responsibilities for violative acts committed by minor
supervisors and minor management representatives, it was
not intended to subject employers with liability for the
unauthorized acts of rank-and-file employees. According-
ly, I find and conclude that when Nathaniel Daniels told
the four alleged discriminatees herein that they were no
longer wanted on the job, he did so without any authority,
real or apparent. Accordingly, it follows, that the Respon-
dent cannot be held responsible for Nathaniel Daniels'
conduct in this matter.
Moreover, the Respondent in no way ratified or adopted
in any manner the actions of Nathaniel Daniels. As noted
above, the employees were not paid off with final field
checks as is uniformly the case where Respondent's
employees are discharged. Furthermore, I can find nothing
in the record to show that any individual supervisor, job
superintendent, or officer of the Respondent in any
manner condoned, or in any way adopted or ratified this
action by Nathaniel Daniels. The Respondent has never,
according to the credited testimony of both Vice President
13 By reason of the disposition of this case on the basis found above, I do
not find it necessary to discuss the alternate defense of the Respondent to
the effect that even if the alleged discriminatees were discharged by the
Respondent, such discharge was lawful within the purview of the applicable
contract that Respondent had signed with Local 1274 and to which the
employees were subject.
Stout and Job Superintendent Rupert, either instructed
Daniels to discharge these employees nor did any such
individual have any knowledge of such discharge until the
charge herein was filed.
Accordingly, I find and conclude that the General
Counsel has not established his burden of proof that the
Respondent in any manner, through any of its supervisory
hierarchy, or any agent, discharged discriminatorily the
four individuals as alleged in the complaint or, for that
matter, discharged them at all. In further support of this
conclusion I note that the Respondent has dealt with the
Charging Union and other locals of the Laborers'
International for many years. It is not an antiunion
employer, at least insofar as is shown by the record herein.
As a matter of fact it was in the act of conciliatorily
discussing with the Charging Union the question of which
contract applied to the Copperweld and Youngstown Sheet
jobs just before the employees herein were allegedly
discharged and this question was settled before the
discharges occurred. The basis for finding discriminatory
motivation, therefore, if not completely lacking on the
basis of the record herein, is so tenuous as to be of no
probative value.
I shall, accordingly, recommend that the complaint
herein be dismissed in its entirety.i3
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 935 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Nathaniel Daniels was not a supervisor or an agent
at material times herein within the meaning of Section
2(11) or Section 2(13) of the Act.
4. The Respondent did not discharge the alleged
discriminatees herein and has not discriminated against
them within the meaning of Section 8(a)(3) and ( 1) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record herein , and pursuant to Section
10(b) of the Act, I hereby issue the following recommend-
ed:
ORDER 14
It is hereby ordered that the complaint herein be, and the
same hereby is, dismissed in its entirety.
' 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 , 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
it U S GOVERNMENT PRINTING OFFICE 1975 0-550-248