Central Steel Erecting Co.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 741 (N.L.R.B. 1994)

741
313 NLRB No. 127
CENTRAL STEEL ERECTING CO.
1 The agreement excluded alleged violations concerning wages
from its arbitration provision.
2 Although the judge described Costello as an oiler, the facts show
that Costello was assigned to work with the crane operator as a
member of the crane crew and the Respondent does not contend oth-
erwise.
Central Steel Erecting Co., Inc. and International
Union of Operating Engineers, Local 106,
AFL–CIO. Case 3–CA–17553
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 13, 1993, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.
This case involves interpretation of a provision of
the collective-bargaining agreement between the Union
and the Respondent. Specifically, the issue presented is
whether the Respondent paid the correct amount of
wages to two individuals for work performed by them
on certain dates at one of the Respondent’s construc-
tion sites.1
Thomas Springer, a crane operator, and William
Costello, a member of the crane crew,2 were sent
home early on six occasions from the Respondent’s
construction site for reasons other than bad weather.
The Respondent paid Springer and Costello 4 hours of
pay for each of those days. The judge found that,
under section 2(d) of article III of the collective-bar-
gaining agreement, Springer and Costello were entitled
to a full day’s pay for each of those days. The Re-
spondent excepts to the judge’s decision, arguing that
the introductory clause to section 2 limits application
of section 2(d) to Saturdays and Sundays and that
Springer and Costello were sent home early on week-
days.
Article III of the agreement between the Union and
the Respondent reads as follows:
ARTICLE III
REPORT & SHOW-UP TIME
Section 1. Engineers, firemen and oilers work-
ing on broken time will receive two (2) hours’
pay for reporting on the job, unless ordered not
to on the previous day before 4:30 p.m. If they
start to work in the morning, they shall receive
four (4) hours’ pay. For continuing beyond the
fourth hour, they shall receive a full day’s pay, re-
gardless of hours worked.
Section 2. If an engineer, fireman or oiler is or-
dered out on a Saturday or Sunday, he shall be
paid as follows:
a. for reporting, but not starting work, he shall
receive two (2) hours’ pay at the overtime rate.
b. for starting work, they shall receive four (4)
hours’ pay at the overtime rate.
c. for continuing beyond the fourth hour they
will receive a full day’s pay at the overtime rate.
d. Crane operator and/or crew guarantee of
eight (8) hours at appropriate rate when they re-
port for work each day, weather permitting work.
Otherwise, 2-4-8 provision applies.
We first note that the Respondent did not make the
argument it now relies on to the judge during the hear-
ing and that the parties waived the opportunity to file
briefs with the judge. Instead, at the hearing, the Re-
spondent focused its questioning and statements on the
weather conditions of the days in question, on Spring-
er’s and Costello’s timecards, and on the timeliness
with which Springer and Costello complained to the
Respondent that they were underpaid. Because this is
the first time that the Respondent has argued that the
introductory clause to section 2 limits the full-day pay
guarantee of subparagraph 2(d) to Saturdays and Sun-
days, the judge’s decision does not address this argu-
ment.
Assuming arguendo that the Respondent’s argument
is timely, we find no merit in the Respondent’s excep-
tion. A reading of the entire agreement, and article III
in particular, indicates that the clear intent of the par-
ties was to treat the wages of crane operators and
crews in a manner different from that accorded the
wages of the engineers, firemen and oilers. The intro-
ductory clause of section 2 specifically refers to ‘‘engi-
neers, firemen and oilers’’ ordered out on Saturdays
and Sundays; therefore, the introductory clause cannot
limit subparagraph 2(d) which applies to ‘‘crane opera-
tors and/or crews.’’
In addition, when article III is read in its entirety,
it is apparent that section 1 addresses regular pay for
engineers, firemen and oilers, while the introductory
clause of section 2 and subparagraphs 2(a), (b), and (c)
address overtime pay for engineers, firemen and oilers
working on Saturdays or Sundays. On the other hand,
subparagraph 2(d) references an ‘‘appropriate’’ rate to
be paid to crane operators and crew—which we inter-
pret to mean the regular pay rate, paid for weekdays,
or the overtime pay rate, paid on weekends.
Finally, we note that appendix I to the agreement in-
dicates that section 2(d) was an addition to article III,
suggesting that section 2(d) was simply misplaced—it
more likely should have been added as section 3. This
interpretation of article III, providing a guarantee of a
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
2 Art. XVI, sec. 2 of the agreement states that violations concern-
ing wages are not subject to the arbitration provisions of the agree-
ment.
full day’s pay to crane operators and crew, is consist-
ent with the fact that, under the agreement, crane oper-
ators and crews receive higher pay than the engineers,
firemen and oilers. Any other reading of article III, in-
cluding the Respondent’s suggested reading, makes lit-
tle sense. For these reasons, in addition to those stated
by the judge, we affirm the judge’s decision and adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Central Steel Erecting Co.,
Inc., Chadwicks, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Alfred M. Norek, Esq., for the General Counsel.
James M. Kernan, Esq., for the Respondent.
Daniel McGraw, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Utica, New York, on August 9, 1993.
The complaint herein, which issued on February 12, 1993,
was based on an unfair labor practice charge and an amended
charge filed on December 29, 1992,1 and February 19, 1993,
by International Union of Operating Engineers, Local 106,
AFL–CIO (the Union). The complaint alleges that Central
Steel Erecting Co., Inc. (Respondent), a party to a contract
with the Union covering, inter alia, its operating engineers,
failed to continue in full force and effect all the terms of this
agreement by failing to abide by article III of the agreement
which provides for a guarantee of 8 hours’ pay, weather per-
mitting, for crane operators and the crews. It is further al-
leged that this is a mandatory subject of bargaining and the
change was made without the Union’s consent, in violation
of Section 8(a)(1) and (5) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice in Chadwicks, New York, is a contractor in the building
and construction industry. During the 12-month period end-
ing December 31, Respondent purchased and received at its
Chadwicks facility and at New York State jobsites goods val-
ued in excess of $50,000 directly from points located outside
of the State of New York. Respondent admits, and I find,
that it is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
The facts herein relate solely to the work Respondent per-
formed on the Fulton County Jail jobsite in Johnstown, New
York (the jobsite), where it was engaged as a rigging, steel
erecting, and millwork contractor. Prior to commencing work
at the jobsite, Respondent entered into a contract with the
Union wherein it granted recognition to the Union as the col-
lective-bargaining representative of its operating engineers,
firemen, oilers, crane operators, and/or crew employed by
Respondent at the jobsite.2 The sole issue herein relates to
whether Respondent failed to abide by the terms of article
III of the agreement, which states:
REPORT AND SHOW UP TIME
Section 2(d). Crane operators and/or crew guarantee
of eight (8) hours at appropriate rate when they report
for work each day, weather permitting work. Otherwise
2-4-8 provision applies.
Article III, section 1 of the contract refers to this ‘‘2-4-8 pro-
vision’’ and states:
Engineers, firemen and oilers working on broken time
will receive (2) two hours’ pay for reporting on the job,
unless ordered not to on the previous day before 4:30
p.m. If they start to work in the morning, they shall re-
ceive four (4) hours’ pay. For continuing beyond the
fourth hour, they shall receive a full day’s pay, regard-
less of hours’ worked.
It is alleged that Thomas Springer and William Costello, Re-
spondent’s employees at the jobsite, were not paid for the
full 8 hours for the following days that they reported to the
jobsite and worked: October 29, November 6, 11, and 24,
and December 17 and 23, and it is alleged that this failure
to abide by the terms of article III, section 2(d) of the con-
tract violates Section 8(a)(1) and (5) of the Act.
The witnesses herein were Gene Messercola, president and
business manager for the Union, Springer and Costello, and
Debra Acee, Respondent’s bookkeeper. Springer and Costello
were Respondent’s sole unit members employed at the job-
site. Costello was a member of the Union; Springer, whom
Respondent requested to work at the jobsite, was a member
of a sister local of the Union. Springer operated the large
truck crane at the jobsite; Costello was the oiler at the site,
erecting and maintaining the crane and giving Springer hand
signals to assist in the operation of the crane. As stated, the
job involved the construction of a county jail. Respondent’s
contract (and Springer and Costello’s job during this period)
was, principally, using the crane to unload concrete planks,
as well as steel beams, off tractor-trailers and setting them
in place as the floor or ceiling of the building.
Springer and Costello began working at the jobsite in mid-
October, and remained working there until January 1993. Re-
spondent had timecards which were given to Springer and
Costello to fill out by hand. From the time they first worked
at the jobsite through November 24, they recorded the actual
hours that they worked at the jobsite. For all but 4 days dur-
743CENTRAL STEEL ERECTING CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ing this period, they worked 8 hours and were paid accord-
ingly. However, during this period there were 4 days (Octo-
ber 29 and November 6, 11, and 24) when there was not
enough work for them to do so that Respondent’s foreman
on the job told them to go home after they had worked for
4 hours. This was usually caused by the lack of trucks deliv-
ering the concrete slabs or the steel beams that they moved
with their crane. Springer and Costello each testified that on
none of the six occasions that they were sent home prior to
the completion of their 8 hours at the jobsite was the weather
a contributing factor in the lack of work. On these 4 days
Springer and Costello each worked 4 hours before being sent
home by Respondent and they put down 4 hours on the time-
cards that they filled out for Respondent.
On November 24, Messercola visited the jobsite and spoke
to Springer and Costello. They told Messercola about receiv-
ing only 4 hours’ pay for certain days, and Messercola
showed them article III of the agreement which guarantees
them 8 hours’ pay, weather permitting. After meeting with
Messercola, Springer told Respondent’s foreman at the job-
site of the 8-hour guarantee. Subsequent to that, and specifi-
cally for the two remaining days that they worked less than
8 hours, December 17 and 23, Springer and Costello put
down 8 hours on their timecards. On these two dates they
worked 4 hours and wrote 8 hours on their timecards because
they had learned of article III of the agreement. Sometime
after they handed in these timecards, the number of hours for
these days was changed to 4, and they were paid for 4 hours
on each of these days.
Messercola testified that on about November 24, after
Springer and Costello told him that they had not been paid
for 8 hours as they should have been on certain days, he
called Acee. He told her that Springer and Costello were not
being paid the correct number of hours under article III of
the contract. She said that she was busy, that she would not
pay it, and did not want to be bothered with it at that time.
Messercola told her to look at the contract and get back to
him. Not having heard from her, he called her again on about
December 17. He told her that Springer and Costello were
still not receiving their proper pay as provided for in article
III. Acee told him that the men were not entitled to the
money, she was not going to pay it and the Union was ‘‘a
pain in the ass.’’ She asked Messercola to write her a letter
stating his position on the matter, but he never did so. Acee
testified that after receiving Messercola’s calls, she did not
investigate the matter because Respondent’s foreman records
the hours worked and he ‘‘is there working with the men.’’
On December 11 Springer called Acee and asked her
about the hours he had not been paid for up until that day.
She told him that she was not paying them for the hours and
she did not care what he did. On December 23 he went to
Respondent’s office to pick up his paycheck and spoke to
Acee. He told her that his check was short 4 hours’ pay (pre-
sumably for December 23). She told him that everybody was
paid for only 4 hours that day. He said that he was not there
to argue, and he left.
Acee testified: ‘‘Our policy is 2-4 and 8.’’ She testified
that Springer and Costello were paid the proper amount for
the days in question because they were paid for the number
of hours set forth on their timecards for the dates in question.
Article III, section 2(d) clearly states that the crane opera-
tor and crew are to be paid for 8 hours of work if they report
to work and weather is permitting. It also states that it takes
precedence over the 2-4-8 provision. Springer and Costello
reported for work on the 6 days in question and the weather
was permitting on each of these days, yet they were paid
only for 4 hours for each of these days. There is no evidence
that Respondent bargained with the Union regarding chang-
ing article III, section 2(d), or that the Union agreed to any
change in this provision. Respondent therefore unilaterally
failed and refused to continue in full force and effect article
III, section 2(d) of its agreement with the Union. As this is
a mandatory subject of bargaining, Respondent has therefore
violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since on about October 22, 1992, by virtue of a collec-
tive-bargaining agreement executed on that day, the Union
has been the exclusive collective-bargaining representative of
Respondent’s employees in the following appropriate unit:
All operating engineers, firemen, oilers, crane operators,
and/or crew employed by Respondent at the Johnstown
jobsite.
4. By failing and refusing to pay 8 hours’ pay to Thomas
Springer and William Costello for October 29, November 6,
11, and 24, and December 17 and 23, as required by article
III, section 2(d) of its collective-bargaining agreement with
the Union, without prior negotiations with the Union, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that Re-
spondent restore Springer and Costello to the position they
would have been absent the violation herein, i.e., by paying
them for an additional 4 hours at the contractual rate for the
6 days in question, with interest computed in accordance
with New Horizons for the Retarded, 283 NLRB 427 (1987).
See generally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Central Steel Erecting Co., Inc.,
Chadwicks, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to comply with all the terms of
its collective-bargaining agreement with the Union executed
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
on October 22, 1992, without first negotiating with the
Union about said changes.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay to Thomas Springer and William Costello 4 addi-
tional hours of pay for October 29, November 6, 11, and 24,
and December 17 and 23, 1992, at the rate of pay as speci-
fied in its collective-bargaining agreement with the Union
executed on October 22, 1992, with interest.
(b) Post at its office in Chadwicks, New York, and at each
of its worksites, copies of the attached notice marked ‘‘Ap-
pendix.’’4 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT make unlawful unilateral changes in our
employees’ wages without first bargaining collectively with
International Union of Operating Engineers, Local 106,
AFL–CIO (the Union), the collective-bargaining representa-
tive of our operating engineers, firemen, oilers, crane opera-
tors, and/or crew employed by us at the Fulton County Jail
jobsite.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their Section 7
rights.
WE WILL make whole Thomas Springer and William
Costello by paying them for an additional 4 hours at their
contractual rate of pay, with interest, for the following days
in 1992: October 29, November 6, 11, and 24, and December
17 and 23.
CENTRAL STEEL ERECTING CO., INC.