Ernst Steel Corp.

National Labor Relations Board - Board Decisions

May 21, 1975

217 N.L.R.B. 1069 (N.L.R.B. 1975)

ERNST CONSTRUCTION
Ernst Construction Division of Ernst Steel Corpora-
tion and Edmund L . Rall and Daniel A. Wagner.
Cases 3-CA-5755 and 3-CA-5783
May 21, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 23, 1974, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has de-
cided 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 Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Ernst Construction Division of Ernst
Steel Corporation, Buffalo, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the said recommended Order.
MEMBER JENKINS, concurring:
My colleagues find that deferral to the grievance-
arbitration procedure of the collective-bargaining
agreement would not be appropriate in this proceeding
because, inter alia, the issue of whether or not em-
ployees Rall and Wagner were accorded discriminatory
treatment necessarily involves a determination as to
whether Respondent's actions were in compliance with
our prior Board order directing the reinstatement of
employee Rall. This seems inconsistent with their
i We agree with the Administrative Law Judge that the deferral of the
issues here to the grievance and arbitration procedures under the collective-
bargaining agreement is inappropriate The issues here essentially involve
_compliance with the previous Board order in Ernst Construction Division
of Ernst Steel Corporation, 212 NLRB 78 (1974), a matter clearly inappro-
priate for determination by an arbitrator. Furthermore, the Respondent has
reserved its right to argue before an arbitrator that the grievance, if now
pressed by the Union, should be dismissed by the arbitrator for delay in
prosecution Under these circumstances, were we to defer to the grievance
and arbitration procedure and the Respondent prevailed in its argument
above, employee Rall would be left without any recourse, contrary to the
deferral policy set forth in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971). See The Detroit Edison Company, 206
NLRB 898 (1973). -
1069
ready willingness to allow private tribunals to decide
statutory rights under the Collyer policy.' In the ab-
sence of any explanation for this incongruity, I can only
conclude that compliance with a previous Board order
is of greater moment to my colleagues than the determi-
nation of rights conferred and guaranteed solely by our
statute.
I would not, in any event, defer to arbitration in this
type of situation for the reasons set forth in my dissent-
ing opinions in Collyer and National Radio Co., supra,
and other cases invoking the Collyer doctrine. In this
connection, I continue to believe that Congress meant
that statutory violations should be found if they exist,
and, if found, that they be remedied by this Board to
which Congress entrusted responsibility for enforcing
the provisions of the National Labor Relations Act.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
July 17, 1974, Edmund L. Rall filed a charge alleging viola-
tion of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (29 U.S.C. 151 et seq.), and on August 16, 1974, an
amended charge of violation of Section 8(a)(4) of the Act, by
Ernst Construction Division of Ernst Steel Corporation, the
Respondent. On August 15, 1974, Daniel A. Wagner filed a
charge of violation of Section 8(a)(1) and (3) of the Act
against the Respondent. On September 12, 1974, the Re-
gional Director of Region.3 of theNational Labor Relations
Board issued a Complaint and Notice of Hearing upon the
charges. Service of the charges, the complaint, and the notice
of hearing were duly made on the Respondent. Thereafter the
Respondent duly filed its answer denying the allegations of
unfair labor practices.
Pursuant to notice of hearing was held before me in Buf-
falo, New York, on October 17 and 18, 1974. All parties
appeared, were represented, and were afforded full oppor-
tunity to be heard, to introduce and to meet material evi-
dence, to present oral argument, and to file briefs. A brief was
filed by the Respondent on November 15, 1974 and by the
General Counsel on November 18, 1974. On November 12,
1974, the General Counsel filed a Motion for Correction of
Errors in Official Report of Proceedings. No objection having
been received thereto, the Motion is granted.
Upon consideration of the record and the briefs I make the
following:
2 See National Radio Company, Inc, 198 NLRB 527 (1972) (Members
Fanning and Jenkins dissenting), Tyee Construction Co., 202 NLRB 307
(1973) (Members Fanning and Jenkins dissenting); United States Postal
Service, 210 NLRB 637 (1974) (Members Fanning and Jenkins dissenting),
and United Aircraft Corporation (Pratt & Whitney Division, Hamilton
Standard Division), 213 NLRB No 22 (1974) (Members Fanning and Jen-
kins dissenting).
217 NLRB No. 179
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue of,
the laws of the State of New York.
At all times material herein, Respondent has maintained
its principal office and place of business at 1280 Main Street,
in the city of Buffalo, and State of New York, and has main-
tained a steel fabrication plant and yard on Walden Avenue
in the Town of Cheektowaga and State of New York, herein
called the plant, and is, and has been at all times material
herein, engaged primarily as a contractor in the building and
construction industry in the fabrication and erection of struc-
tural steel. -
Annually, Respondent, in the course and conduct of its
business operations, purchases, transfers, and delivers to its
plant, structural steel shapes, plates and bars, and other goods
and materials such as steel erection equipment and repair
parts valued in excess of $50,000, of which goods and materi-
als valued in excess of $50,000 are transported to said plant
directly from States of the United States' other than the State
of New York.
II THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local No. 17,
17A, and 17B, AFL-CIO, herein jointly called the Union, is
and has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
Edmund L. Rail is a construction crane operator and a
member of Local 17 of the Operating Engineers Union, which
has jurisdiction over the Buffalo, and other portions of west-
ern New York, geographical area. The Respondent is en-
gaged in structural steel construction in New York and other
eastern states. As a member of the Construction Industry
Employers Association, Inc., the Respondent has a collec-
tive-bargaining contract with Local 17 effective June 1, 1972,
to June 1, 1975.
The crew of a construction crane consists of an operator
and an oiler. The oiler is generally chosen by the operator,
and not by the employing company, though he becomes the
latter's employee. Daniel A. Wagner, at pertinent times, was
an oiler for Rail.
On June 27, 1974, the Board issued a Decision and
Order,' adopting a decision issued by Administrative Law
Judge Arthur Leff on April 9, 1974, in which he found that
the Respondent had in effect discharged Rail on July 6, 1973,
and had thereafter failed and refused to reemploy him be-
cause he engaged in concerted activities for the purpose of
mutual aid and protection. The decision of Administrative
Law Judge Leff followed a hearing held on January 29 and
30, 1974. I take official or judicial notice of his findings of fact
1 Ernst Construction Division of Ernst Steel Corporation, 212 NLRB 78
(1974)
and conclusions, as adopted by the Board, and incorporate
them as findings herein to the extent here stated.
In his decision Administrative Law Judge Leff found the
following:
Rail first became employed by Respondent on a regular
basis in the summer of 1971, and thereafter remained
with Respondent on that basis until July 6, 1973. . . .
[I]n the case of a crane operator who is considered part
of Respondent's regular work force, it is Respondent's
normal practice when work is completed on a given job
to assign such an operator to other work for which he
is qualified if such work is then available, and if not, to
recall him for work-whether on the same or a different
machine-as soon as a new job for which he is qualified
opens up. In the case of Rail, Respondent followed that
practice during the period between the summer of 1971
and July 6, 1973. -
Although Rail and Richardson would be laid off when
Respondent had no work available for them, Respond-
ent had followed the practice of recalling them after a
layoff and giving them priority in employment when new
jobs opened up. Rail had been regularly employed by
Respondent longer than Richardson, and was regarded
by Respondent as a highly competent operating engineer
capable of operating any type of crane. After July 6 and
up to the time of the hearing, Richardson, except for
some very short layoffs, continued to work steadily for
Respondent, and, although most of his work assign-
ments were to jobsides [sic] outside of Local 17's ter-
ritorial jurisdiction for which clearance from other Lo-
cals were required, there is nothing in the record to
suggest that Rail could not have recieved the same clear-
ance.
Administrative Law Judge Leff's recommended Remedy
and Order, also adopted by the Board, directed the Respond-
ent to cease and desist from
discharging, laying off, or failing or refusing after a lay-
off to recall or reemploy, employees, or otherwise dis-
criminating in regard to their hire, tenure of employ-
ment, or any term or condition of employment, because
they have engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion.
In addition the Respondent was directed to offer Rail
. .. immediate reinstatement to the same employee
status on Respondent's work force that he occupied
prior to July 6, 1973, without prejudice to his seniority
or other rights and privileges, and make him whole for
any loss of earnings suffered as a result of the discrimina-
tion against him herein found. . . .
In connection with the reinstatement order, Administra-
tive Law Judge Leff's decision, adopted by the Board, furl her
stated the following:
The intent of this reinstatement provision is that Re-
spondent shall offer Rail immediate employment if work
ERNST CONSTRUCTION
is available for him for which he normally would have
been hired but for the discrimination against him herein
found, and, whether or not such work is immediately
available for him, Respondent shall recall him or offer
him reemployment for new work that may later apse,
according him the same priority on recall or reemploy-
ment as it would have prior to July 6, 1973.
B. The May 1974 Employment of Rall
As has been seen, Administrative Law Judge Leff's deci-
sion issued on April 9, 1974.
On May 6, 1974, Rail was employed by the Respondent to
move a crane from the Respondent's Buffalo, New York,
yard to a jobsite in Massena,2 New York. This was Rail's
first employment by the Respondent since July 6, 1973. Mas-
sena is in the jurisdictional area of the Syracuse, New York,
local of the Operating Engineers Union. After taking the
crane to Massena and assembling it, a job which required
approximately 3 working days, Rail was laid off. It is not
disclosed who operated the crane for the Respondent on the
project at Massena, whether a crew from the Syracuse local,
or one from elsewhere.
The testimony of the Respondent's Erection Superintend-
ent Earl Maurer is that the employment of Rail to move the
crane to Massena was pursuant to the decision of Administra-
tive Law Judge Leff. However, in employing Rail on this
occasion (and thereafter), the Respondent made a significant
change in its recall procedures applicable only to Rail. In the
past, when recalling a Local 17 operator whom the Respond-
ent had laid off, the Respondent's procedure had been uni-
formly to call the employee directly. But, beginning with the
May 6, 1974, recall of Rail, the Respondent established a
different procedure applicable to Rail only: it called the Local
17 hall and asked for Rail to be sent. The purpose of this
change in procedure, Erection Superintendent Maurer testi-
fied, was to provide the Respondent with corroboration of its
offers of employment to Rail.'
I accept Maurer's testimony as to the motivation for the
change in procedure. However, as hereinafter found, the pro-
cedure did not conform to the Board's order. In addition the
Respondent must assume responsibility for consequences of
its failure to communicate directly with Rail.
C. The June-July 1974 Employment of Rall
Ray Edwards, a member of Rochester Local 832 of the
Operating Engineers, worked for the Respondent from time
to time out of the Rochester hall. In early June 1974, Superin-
tendent Maurer's testimony indicates, Edwards was working
on one of the Respondent's jobs in the Rochester area, using
an 82-ton link belt crane. Though Rail was then in layoff
status, when the Rochester job was completed, the Respond-
ent offered Edwards the job of bringing the crane into the
Buffalo area and operating it there. However, about June 3,
2 .Spelled "Messina" in the transcript
3 In the prior case Superintendent Maurer testifLed, and Rail denied, that
Maurer had offered Rail the opportunity to "bump" operator William Rich-
ardson at the time of Rail's 1973 discharge Administrative Law Judge Leff
did not credit Maurer's testimony
1071
Local 17 declined clearance for Edwards to operate the crane
in the Buffalo area.
On June 5, 1974, Erection Superintendent Maurer called
the Local 17 hall and requested a crane operator and oiler for
the 82-ton link belt at the Harlem-Clinton Bridge project, the
job which the Respondent had earlier offered Edwards. Later
in the day Maurer called again and asked that the operator
be Rail, who was notified to that effect by Local 17.
On the following day, June 6, in accordance with the dis-
patch, Rail reported at the Respondent's yard with an oiler.
Because that oiler apparently had problems handling the
large rig, he was replaced by Daniel A. Wagner, who was
secured by Rail. From then through July 12 Rail was con-
tinuously employed, principally on a Chevrolet project, oper-
ating the 82-ton crane, or in related engineer's work tending
a welding machine. Wagner continued as Rail's oiler during
the entire period, except for an interval of 2 or 3 days when
the rig was laid up.
Shortly after this tour of employment began, Business Rep-
resentative Kenneth Schneider of Local 17 advised the Re-
spondent that Rail was the Union's steward.4
In the meantime , other pertinent events were occurring.
As has been seen, on June 27, 1974 the Board issued its
Decision and Order adopting the findings, conclusions, and
recommendations of Administrative Law Judge Leff.
About July 3, 1974, Assistant Construction Superintend-
ent Ronald Kessler advised Ray Edwards, of the Rochester
Local, that a job requiring the 82-ton link belt crane then
being operated by Rail was coming up in Rochester territory
at Lapp Insulator in Leroy, New York. Kessler offered the
job to Edwards, who accepted.
On July 3, 1974, Assistant Superintendent Kessler also
called the Local 17 hall and spoke to Business Representative
Schneider. Kessler asked that Crane Operator Richardson
(see pp. 3, 5 supra), who was unable to operate a crane because
of a traffic accident in February, be assigned to operating
compressors or welding machines during his disability.'
Schneider approved the assignment. Kessler then went on to
inform Schneider that the 82-ton link belt crane was going to
be moved into the Rochester area, and that"Kessler was now
giving Schneider the required 48-hour notice of layoff of Rail
effective July 5.6 Schneider asked Kessler if Rail and Wag-
° During his earlier period of employment by the Respondent Rall had
also been union steward. Though the Respondent denies that it received a
confirmatory letter sent by the Union in June 1974 as to Rail's appointment,
the undemed and credited testimony of Schneider and Rall is that on June 7,
1974, Schneider came to the job on which Rall was then working. Sisters
Hospital, and orally informed the Respondent ' s foreman and supervisor on
that project, James Ashley, that Rall was the Union's steward. In any event,
the Respondent was aware of Rail's status of union steward . See the account
above of the telephone conversation of July 3 between Assistant Erection
Superintendent Kessler and Union Representative Schneider
5 The accident occurred on February 23, 1974 In July, at the time of
Kessler's request, Richardson was not yet physically capable of operating a
crane However , he was able to tend welding machines and air compressors
and oversee their maintenance, work within the jurisdiction of the operating
engineers . After the accident in February, Richardson first operated a crane
for the Respondent in September 1974, under circumstances to be related
6 The collective-bargaining contract provides.
The Steward shall not be laid off or discharged until a meeting between
the Employer and the Business Agent of the Union has been held. This
(Continued)
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner were seeking clearance into the Rochester territory.
Kessler replied that a crew had been ordered from Rochester
Local 832 to operate the crane there, and that the only clear-
ance required would be for Rail and Wagner to move the rig
to the Rochester job.
On the same day that Kessler notified Business Represen-
tative Schneider of the 48-hour notice to lay off Rail, and of
Kessler's assignment of Richardson to the compressor or
welding machines, Schneider notified Rail of his impending
layoff. However, the actual layoff was delayed for some days
because of a breakdown in the rig. As a consequence, the job
on which it was being used (the Chevrolet job at Grand
Island) was not finished, and the rig ready to move to Leroy,
New York, until Friday, July 12.
During the entire time that Rail worked on the Chevrolet
job (from about June 15 to July 12), Assistant Superintendent
Kessler did not speak to Rail, though he was at the jobsite
almost daily.'
On July 12, 1974, Kessler came to the Chevrolet job and
told oiler Wagner that he and Rail should move the crane to
the Lapp Insulator job at Leroy, New York. Kessler also told
Wagner to, "Make sure Eddie Rail doesn't throw a spud
wrench in the engine."'
Wagner then telephoned the Local 17 hall and asked the
Union to secure clearance from the Rochester local to take
the crane to Leroy. Rail and Wagner left Buffalo with the rig
about 2 p.m. However, because of inability to secure clear-
ance from the Rochester local, they were able to move the
machine only to the jurisdictional line at Bushville, New
York, some 10 miles from Leroy. On orders from Union
Representative Hendrick, of Local 17, Rail and Wagner
parked and secured the rig at Bushville, and returned to
Buffalo and the Respondent's yard, where they informed the
Respondent's officials of the situation. On the following Mon-
day the Rochester crew picked up the rig at Bushville and
moved it to Leroy for operation there.
Due to some happenstance not clear from the record, Wag-
ner and Rail were not given their pay on Friday, July 12, as
required when a crew is laid off. A grievance was filed con-
cerning this matter. A grievance was also filed contesting the
meeting shall be held on the job site not later than forty-eight (48) hours
from the time of the Employer's call to the Union If mutual agreement
is not reached at this meeting on the disposition of the matter, either
party may move the dispute to Grievance. (Sec 5A, p 7)
Though, as will be seen, the Respondent, on contractual grounds, contests
the appointment of Rall as steward, Kessler's testimony is that the 48-hour
notice was given for reasons of caution
7 Kessler testified that the reason he did not speak to Rall on the Chevrolet
job was, "Mostly because I didn't want a reoccurrence of the last case It
seemed like everything I said to him was repeated again, so I didn't say
anything " However, Kessler denied that he held any animosity toward Rall,
"not particularly "
8 The finding as to this declaration is based on Wagner's testimony.
Kessler denied making the statement Nor did he remember making a simi-
lar remark, in jest or otherwise Although a charging party, the circum-
stances do not indicate any substantial reason why Wagner should fabricate
the evidence As will be seen from subsequent discussion, the General
Counsel does not contend that the Respondent had any animus toward
Wagner, nor did I detect from observation of Wagner any apparent animus
toward the Respondent. In the circumstances I have concluded that Wag-
ner's testimony is credible In this connection it is to be noted that Erection
Superintendent Maurer testified that, "I don't think there was any real
empathy between Mr Rall and Mr Kessler "
validity of Rail's layoff, as union steward , under the contract.
As to the pay grievance , Rail and Wagner were paid for an
additional day, Monday , July 15. However, the grievance
over Rail 's layoff was denied under circumstances to be dis-
cussed.
D. The Grievance over Rail 's Layoff
The collective-bargaining contract between Local 17 and
the Respondent, page 7, contains several provisions relating
to union stewards and their layoff. These are as follows:
5A: The Union shall appoint a Working Steward and
shall notify the Employer of its selection. The Steward
shall not be laid off or discharged until a meeting be-
tween the Employer and the Business Agent of the
Union has been held. This meeting shall be held on the
job site not later than forty-eight (48) hours from the
time of the Employer's call to the Union. If mutual
agreement is not reached at this meeting on a disposition
of the matter, either party may move the dispute to
Grievance.
5B: The Working Steward shall be given sufficient time
to perform the duties assigned to him by the Union, and
shall work as long as any productive equipment is being
operated, repaired or disassembled.
The Respondent and Local 17 disagree over the interpreta-
tion of some of these provisions of the contract.
As has been seen, the Chevrolet job at Grand Island was
begun on June 15 with Rail and Wagner operating the 82-ton
link belt crane. Shortly after that, the exact date is not dis-
closed, the Respondent began another job on Grant Island
known as the Tops Market job, to which it assigned crane
operator Raymond Barrett to operate a 35-ton Lorraine
crane. For a period of a week or two, beginning in late June
or early July, that crane temporarily went out of operation on
the Tops job due to a lack of work. However, two welding
machines, which are operated by Local 17 members, and
which are considered to be "productive equipment" within
the meaning of contract provision 5B, continued to operate.
During that interval the Respondent assigned crane operator
Barrett to the operation of the welding machines, presumably
displacing the previous operator or operators. On the day that
Rail was laid off, and perhaps for a portion of July 15, the
welding machines on the Tops job were being operated by
Barrett. On July 15, 1974 the 35-ton Lorraine rig on Tops
Market was put back into operation with Barrett as its opera-
tor. Who operated the welding machines thereafter is not
disclosed.
On July 15, 1974 , Business Representative Schneider of
Local 17 telephoned John Ray, staff representative for the
Construction Industry Employers Association, whose duties
include administration and interpretation of the contract be-
tween the Respondent and Local 17. Schneider stated a griev-
ance to Ray with respect to the failure to pay off Rail and
Wagner on July 12-which Ray agreed was meritorious. In
addition, Schneider told Ray that he was filing a grievance on
behalf of Rail under Paragraph 5 of the contract. Schneider's
position was that Rail should not have been laid off while
productive machinery, the welding machines and cranes,
ERNST CONSTRUCTION 1073
were being operated. Ray orally denied that grievance, fol-
lowing it by a confirmatory letter the next day. Ray's reply;
on behalf of the Respondent, was to the effect that the As-
sociation did not recognize the appointment of a "company
steward," as distinguished from a steward on each construc-
tion site. No further action has been taken on that grievance,
although both Schneider and Ray, as witnesses, expressed it
as their opinion that it remains alive and litigable. However,
Ray indicated in his testimony that if the Union pressed the
matter to final arbitration as authorized by the contract, the
Association would urge that it be rejected for, among other
reasons, delay in prosecution.
No explanation is offered by the Respondent as to why Rall
could not have been offered Barrett's job of covering the
welding machines on the Tops job. The Respondent says that
the reason it did not offer him the crane operator on the Tops
job was that Barrett had been operating it previously and that
under customary practices when a crane resumes operation
it is offered to its former operator.
On July 17, 1974, Rall filed the unfair labor practice charge
alleging that the Respondent had discriminated against him
on July'15, 1974, and had refused to employ him. A copy of
this charge was received by the Respondent on July 19, 1974.
On August 2, 1974, Business Representative Schneider of
Local 17 referred Rall to a crane job in the Buffalo area at
Bethlehem Erection, and Rall thereupon went to work for
that Company.
E. The Respondent's August 6 Call to the Union Hall
Ray Edwards, of the Rochester local, operated the
82-ton link belt on the Lapp Insulator job in Leroy, New
York. From there the rig was moved to Bradford, Pennsyl-
vania, in the jurisdictional area of a Pennsylvania local, where
Edwards continued to operate it. At the end of the job in
Bradford, Erection Superintendent Maurer ordered the rig
back to Buffalo for a job in Local 17's jurisdiction. Maurer
offered the Buffalo job to Edwards, but Edwards was unable
to secure clearance from Local 17.
On August 6, 1974, Superintendent Maurer called Business
Representative Schneider at the Local 17 hall, and asked for
a crew to operate the 82-ton crane on a bridge job at Harlem
Road, the job which he had offered to Edwards. Maurer
specifically asked for Rall, adding that he heard that Rall
might be working. Schneider called Rall's home and teamed
from Rall's wife that Rall was still employed by Bethlehem.
Schneider thereupon dispatched a crew consisting of operator
Charles Connors and oiler Steve Krnjaich. When the crew
reported at the Respondent's yard, Superintendent Maurer
called Schneider at the union hall and asked what had hap-
pened to Rail. Schneider advised him of his call to Rail's
home. Maurer told Schneider that he would send Schneider
a letter stating that he had requested Rall and had been
informed that he was working, for his own "backup." Sub-
sequently Maurer sent such a letter to Schneider dated
August 7.
Learning that Superintendent Maurer had called the union
office and asked for him, Rall called Maurer at the Respon-
dent's office later in the week, but was advised that Maurer
was in Virginia and was home only on weekends. Rall advised
the girl who-answered the phone that he was available for
work, and on the following Saturday, August 10, he called
Maurer at his home.'
F. The August 10 Conversation
There is no substantial conflict as to the substance of the
August 10 telephone conversation between Rall and Maurer.
Rall told Maurer of his calls to the office and said that he
understood that the Respondent had attempted to get him to
go back to work. Rall further said that on August 2 he had
gone to work at Bethlehem, and that was the reason he was
unavailable on the 6th. Rall told Maurer that he was unhappy
about his employment with the Respondent and complained
about being laid off on July 12, while Barrett was covering
the welding machines. Rall further stated that he thought
that he had got a "bum deal" and had not gotten a "fair
shake." Rall suggested a meeting in order to settle the matter.
Maurer expressed a willingness , said that he would consult
with Mr. Ernst, and the conversation terminated. Rall heard
nothing further from Maurer.
G. The Reemployment of Wagner; the Hornell and Buffalo
Assignments
The complaint was issued on September 12, 1974. Because
of that, on September 20, 1974, the Respondent offered Wag-
ner employment as an oiler on a 35-ton Lorraine crane with
Thomas Green as the operator. Wagner accepted and was
employed with Green for about a week, first in Local 17's
territory and later in Hornell, New York. Hornell is in the
jurisdiction of Local 832 of Rochester. Wagner and Green
finished the job in Hornell on Friday, September 27, and were
due to begin another job for the Respondent in Buffalo on the
following Monday. However, Wagner became ill. The record
does not disclose the extent of his employment with the Re-
spondent, or his availability for employment, since that
date.10
IV. CONCLUSIONS
A. Contentions
The General Counsel contends that the Respondent dis-
criminated against Rall, and failed to comply with the
9 The Respondent contends that Rail did not call the Respondent's office,
and introduced testimony by an employee in that office, Irene Steigerwald,
whom Rail had identified as one of two women in the office to whom he
spoke Mrs. Steigerwald denied that she had a telephone conversation with
Rail concerning such a subject On rebuttal Rail testified that he thought it
was Mrs, Steigerwald to whom he spoke, but reiterated his testimony that
he did call the office and advised it that he was available for work
I credit Rail's testimony in this regard It does not seem likely that Rail
would have known that Maurer was in Virginia and could not be reached
except at home on the weekend (which was the fact), unless, as he says, he
was so informed by the Respondent's office The other woman in the office,
who generally answers the switchboard, did not testify. Though Superin-
tendent Maurer testified that he did not remember Rail telling him in the
August 10 conversation, to be related, that he was available for employment,
Rail's testimony is undenied that he told Maurer of his calls to the office
10 Normally the oiler is hired by the crane operator, although he is,an
employee of the Respondent, and the Respondent plays no part in his
selection. The reason for the change in practice with respect to Wagner,
according to Superintendent Maurer's testimony, is because Wagner "com-
plained about not being rehired."
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board 's order in Case 3-CA-5458, by (1) changing its prac-
tice with respect to the recall of Rall , that is, by ceasing to
contact Rall directly , as in the past , when offering him em-
ployment; (2) by not according Rall priority in employment
to which he was entitled by virtue of the steward 's clause in
the collective-bargaining agreement ; and (3) by not according
Rail priority in employment due him because of his seniority,
and the Respondent's prior practice concerning him.
With respect to Wagner the General Counsel's contention
is that since Wagner automatically lost his employment when
Rail was discriminatorily denied employment , Wagner was
thus also a discriminatee.
The Respondent contends that Rall was offered employ-
ment pursuant to the Board order , and in accordance with the
Respondent 's employment policies, except for the abandon-
ment of its previous practice of calling Rall directly concern-
ing employment-an abandonment which it concedes and
which it justifies , as is discussed hereinafter . The Respondent
further asserts that during the period Rall was unemployed
after June 6, 1974, it was because there was no employment
available for him in accordance with the Respondent's cus-
tomary employment standards. With respect to the General
Counsel's contention that Rall was entitled to priority by
reason of the steward 's clause in the contract , the Respondent
contends , first, that Rall was not a steward as defined in the
contract, and secondly, that even if he was, the contract,
properly construed , does not grant the steward any priority
in employment . More specifically , the Respondent asserts
that the impressed grievance filed by Schneider in connection
with Rail's July 12, 1974, layoff should be submitted to arbi-
tration , as provided by the contract , and in accordance with
the principles of Collyer Insulated Wire, 192 NLRB 837
(1971). In addition the Respondent contends that since
Union rules require that the steward be a Local 17 member,
granting employment priority to a steward would be an unfair
labor practice, citing the case of Painters Local 798 of Nassau
County, 212 NLRB 615 (1974).
With respect to the issue of discrimination against Wagner,
the Respondent's defense is that since there was no discrimi-
nation against Rall, there could be none against Wagner, but
that in any event Wagner's loss of employment was not for
reasons of discrimination against him.
B. The Issue as to Priority of a Steward
The claim of the General Counsel in this respect is as
follows. At the time Rall was laid off on July 12 Barrett was
employed covering welding or compressor machines, or in
crane operation , on the Tops Market job and continued to be
employed in either of those capacities after Rall was laid off.
The General Counsel contends that, in those circumstances,
Rail's layoff was a violation of the contract requirement that
the steward shall work as long as any productive equipment
is being operated, repaired, or disassembled. (Par. 5A, p. 7).
Neither Rall nor the Union claim that Rall was entitled to
"bump," that is, displace another operating engineer in order
to avoid layoff. Indeed , Rail specifically disclaimed such a
right, testifying that there is an unwritten law against such
action in the industry : "Never take another man's crane."
The Respondent asserts, first, that Rall was not a steward
under the contract, and, second, that even if he were, there
being no "bumping" rights, he was not required to be retained
in a nonproductive capacity . The first of these contentions is
bottomed on the Association 's position that the contract does
not provide for company-wide stewards , but only for job
stewards . The second is based on the fact that the steward
called for is a "working" steward : to pay the steward without
providing him with a job would make him a nonworking
steward, for which there is no contractual provision. ,
The General Counsel 's contentions in this respect are
therefore founded in the contract . In the absence of reason or
evidence to apprehend that the Association 's interpretation of
the contract was a pretext to cloak the Respondent's discrimi-
nation against Rall , of which I find neither here, the Respon-
dent's position in this respect would not appear to reflect
discriminatory motive or intent. The issue as to steward's
rights therefore appears to be one to be decided in other fora:
either through prosecution of the pending grievance under
the contract, or by a suit under Section 301 of the Labor
Management Relations Act, or both.
C. Whether Jurisdiction Should be Deferred because of the
Collyer Case
This being so, the Respondent contends that the issues here
are resolvable by the grievance and arbitration provisions of
the contract. More specifically , the Respondent urges defer-
ence of jurisdiction, in accordance with the principle of the
Collyer case. That principle, in sum, is that where the parties
have provided a contractual procedure terminating in final
and binding impartial arbitration of an issue before the
Board, the Board will defer jurisdiction pending use of the
contract procedures , the Board retaining authority to deter-
mine whether the final result of the arbitration is consistent
with the principles set down by the Board in the case of
Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
I fmd deferral inappropriate here for the following reasons.
First there is no reasonable assurance that arbitration will
dispose of the issues before the Board . Thus, a decision by the
arbitrator upholding the Association 's position to the effect
that the contract does not provide for a company , as distin-
guished from a job , steward, or the Respondent's alternative
position that providing work for a nonworking steward is
incompatible with the contractual requirement for a "work-
ing" steward , would still leave unresolved the question as to
whether the Respondent discriminated against Rall and Wag-
ner, or failed to abide by the Board 's order. Secondly, the
grievance involves only Rall's right to employment , not Wag-
ner's. Thus, though the contract (Par. C, p. 53) gives the
arbitrator power to issue such remedial orders as are in his
sole discretion appropriate to the circumstances , a finding by
the arbitrator in favor of Rall would not assure a remedy for
Wagner. Thirdly, there is no reasonable assurance that the
issue of interpretation of the steward 's clause will be decided
by the arbitrator. This is because the Association has reserved
the right to argue before the arbitrator that the grievance, if
now pressed by the Union, should be dismissed by the arbitra-
tor for delay in prosecution. Thus, the arbitrator may never
reach the merits of the contractual dispute. Finally, there is
no assurance that the Respondent will abide by an arbi-
trator's decision favorable to Rall . For an award favoring
Rail cannot dispose finally of the Respondent's contention
ERNST CONSTRUCTION 1075
that such a preference in employment is-violative of the stat-
ute. For all these reasons I conclude that the case should not
be deferred for further processing under the contract.
In view of these considerations , it is unnecessary to decide
whether retention of a nonworking steward in these circum-
stances would be violative of the Act.
We turn then to the other issues.
D. Whether There Was Discrimination against Wagner
The case of Wagner stands or falls with the disposition of
the case of Rail. There being no contention , or evidence, that
the Respondent had any discriminatory intent with respect to
Wagner, a conclusion that Rail was not discriminated
against, would require a similar finding as to Wagner. How-
ever, if the allegations of the complaint are sustained as to
Rail, it also follows that they are sustained to Wagner. A loss
of employment by an employee as a direct consequence of a
-discrimination by his employer against other employees, is
likewise discriminatory."
There is therefore no need to consider Wagner's case in-
dependently of Rail's.
E. The Discrimination as to Rall
any substantial change in his employment eligibility, or re-
sulted in any reasonable possibility of employment loss as a
consequence, the change in procedure would constitute an
unfair labor practice.
The Respondent 's asserted reason for the change is not
basically implausible . The method adopted to secure its end,
corroboration , was not unreasonable . While it is true that the
Respondent could have secured substantially the same result
by continuing its practice of communicating with Rail orally,
and then in the event of rejection of employment by Rail,
confirming the offer and rejection by letter to Rail, that pro-
cedure would have resulted in self-serving evidence , whereas
communication with the Union provided a source of neutral,
or at least independent, evidence. I therefore have accepted
Maurer 's testimony as to the motivation for the change in
procedure. Whether, regardless of intent , the change resulted
in a resonable likelihood of deprivation of employment for
Rail, and was thus a failure to comply with the Board order,
and the application of a discriminatory condition of hire
detrimental to Rail , is,decided at a later point . Suffice to say
here that the establishment of the different standard is not
shown to have been with discriminatory intent, or so neces-
sarily productive of discouragement of union membership, as
to be per se an unfair labor practice.
The Respondent's change of procedure in recalling Rail
The Respondent 's standard procedure in recalling em-
ployees who have been laid off is to call the employees di-
rectly. However, as we have seen , beginning with the recall
of Rail in May 1974, the Respondent established a different
procedure applicable only to Rail, that is , to call the union
hall and ask for the dispatch of Rail. This, the General Coun-
sel contends , was discriminatory in that it established a differ-
ent procedure for Rail : it was an unfair labor practice because
it singled out Rail for a special condition of employment for
the reason that he had filed charges against the Respondent,
and it also constituted noncompliance with the Board's order
directing that Rail be restored to his previous status and
previous conditions of employment.
The Respondent admits the change. Its justification, as
testified to by Erection Superintendent Maurer , was its desire
to provide corroboration for its offers of employment to Rail.
The need for this corroboration , Maurer testified , lay in the
fact that in the previous case, Judge Leff discredited certain
testimony by Maurer which was contradicted by Rail, and
credited Rail. That the new procedure was not in strict com-
pliance with the Board 's order is clear . It is also clear that it
constituted a change in Rail's prior conditions of employ-
ment, that is, a procedure for his ' hire, that was adopted as
'a consequence of Rail 's filing of charges and testimony in the
prior proceeding . If enacted with a discriminatory intent, it
would be a discriminatory action. But even though not so
adopted , if its effect was to make any substantial revision in
Rail's status as an employee of the Respondent , or to effect
11 See e.g., Rockwood Stove Works, 63 NLRB 1297, 1299 (1945) (layoff
of other employees , because discriminatory failure to reinstate molders
made work unavailable for other employees , is violative of Sec 8 (3)), Great
Atlantic & Paafe Tea Company, 145 NLRB 361, 366 ( 1963) (unlawful
lockout of store employees , which resulted in layoff for lack of work of other
employees , rendered layoff of latter groups violative of Sec. 8(a)(3) and (1)
of the Act)
F. Whether the Respondent Discriminated Against Rall in
other Respects
Rail was concededly a skilled and competent operator,
proficient in the handling of all the equipment of his trade.
Insofar as the Respondent employed regular employees of his
category , Rail was a regular employee of the Respondent.
That is to say that , while because of the nature of the Respon-
dent's business, there were periods when there was no em-
ployment for a crane operator, on occasions when Rail was
in a laid-off status and a work opportunity occurred the
Respondent would, in the past, endeavor to recall him. He
was a senior employee, and in the past the Company had
taken seniority into consideration in determining who to re-
call, despite the fact that when a particular , machine -which
has been laid up is put back into operation- the usual practice
is to recall the operator who had been operating the. machine
at the time it went out of operation . In particular , as Erection
Superintendent Maurer testified , because of Rail's excellence
as an operator the Respondent had in the past called Rail
back to operate the 82-ton link belt machine when that
resumed service. Even more specifically , in the past the Re-
spondent had preferred Rail as an operator over
Richardson. 12
The Respondent's defense here is that it offered Rail em-
ployment on every occasion when employment for him was
available consistent with usual standards of priority, and
therefore has fully complied with the Board order, and has
engaged in no discrimination against Rail However, when
the assignments of Rail and other crane operations are
analyzed , I am of the view that they establish both that Rail
was not accorded priorities theretofore extended to him, but
12 Thus in the present case Superintendent Maurer explained that the
reason he had offered Rall the opportunity to bump Richardson, as he
testified in the prior case, was because Rall had worked for the Company
longer than Richardson
1076 DECISIONS OF NATIONALLABOR RELATIONS BOARD
that in fact opportunities for employment which the Re-
spondent would normally have made available to Rall were
Withheld from him. I thus conclude that the Respondent has
not complied with the Board order in Case 3-CA-5458, and
that it has continued to discriminate against Rall. The rea-
sons for those conclusions are as follows.
1.
While there is no contractual right of crane operators to
move across jurisdictional lines, or to continue to operate
equipment on which they are employed when the Respondent
moves it across jurisdictional lines to another project, it is not
uncommon for the Respondent to permit such movement
where clearance can be secured from the local into which the
equipment is being moved. Decision as to whether or not to
attempt to have the operator follow the equipment may in-
volve such considerations as whether operators with whom
the Respondent had had experience, and in whom it has
confidence, are available in the other jurisdiction, or the
amount of travel expenses involved.
Prior to his discharge in July 1973, the- Respondent had
used Rall across jurisdictional lines to operate equipment in
other areas. However, when he returned to the Respondent's
employment in May 1974, Rall was not used in such capacity,
although other operators were. While Rall was assigned, and
performed, the moving of the 35-ton crane to Massena, New
York, in May 1974, he was not employed to operate it there.
The same is true of the movement of the 82-ton link belt in
July to Leroy, New York. The Respondent offers no adequate
explanation for these omissions. In addition, on several occa-
sions when both jobs and Rall were available in Local 17
territory, the Respondent offered the employment to opera-
tors from other jurisdictions, rather than to Rall. There is no
adequate explanation for these omissions.
Thus, after returning to work on June 6, 1974, Rall and
Wagner operated the 82-ton link belt in Local 17 territory
until July 12, when it was moved to Leroy, where it was
operated by Ray Edwards of the Rochester local. Normal
procedure, as we have seen, is for an operator to continue to
operate the machine so long as it remains in operation. Never-
theless, Rall and Wagner were not assigned to operate the
82-ton link belt in Leroy. That there is no contractual right
to such employment is not significant. The issue is not
whether Rail had a contractual right to employment across
jurisdictional lines , but whether the Respondent offered such
employment to other employees. Thus, it offered Edwards
employment in Local 17 territory on the Harlem-Clinton
project while Rall was available. No adequate reason is ad-
vanced for failing to offer Rall a similar opportunity on the
Leroy project. Indeed, in early July, even before Rall's and
Wagner's July term of employment was completed, Assistant
Erection Superintendent Kessler had offered Ray Edwards
the Leroy job, as soon as the 82-ton link belt became availa-
ble. That Edwards was in layoff status at that time does not
adequately explain the Respondent's action. For when the
Respondent offered Edwards the Buffalo assignment in early
June 1974, Rall was in layoff status.
After finishing the project at Leroy with Edwards as the
operator, the 82-ton link belt and Edwards were transferred
to Bradford, Pennsylvania, in the area of a Pennsylvania
local. There is no explanation as to why the Respondent did
not offer that employment to Rall, who was then unemployed
and available, or to a Pennsylvania operator. It, cannot be
claimed that - this was because Edwards had been operating
the crane in Leroy and therefore was entitled to continue to
operate it after it moved to Bradford, because if that were so,
Rall should obviously have been offered the opportunity to
operate the crane when it was moved from Buffalo to Leroy.
After the Bradford job was completed, the Respondent had
Edwards bring the crane back to Buffalo. Again it offered
Edwards the job of operating the crane in Buffalo, and again
Edwards could not secure clearance. It was only then, and
apparently after it had heard that Rall might be employed
elsewhere, that the Respondent asked the Union to send Rall
to operate the crane.
2.
Though normally the Respondent, when recalling an oper-
ator, attempts to give him as much notice as possible, usually
at least overnight, it did not make any request on the August
6 occasion to the Union to assign Rall until sometime on the
morning of the day of employment. At that time Rall had
already reported for the day's employment at Bethlehem, and
could not reasonably have been expected to abandon his em-
ployment there and go immediately to the Respondent. The
Respondent's explanation is that it did not know until that
morning that Edwards could not secure clearance. However,
it does not seem probable that, in the ordinary course of
affairs, the Respondent would have delayed resolution of the
problem to such a late time. I am therefore not persuaded that
the Respondent's request to Local 17 to assign Rall on Au-
gust 6 was in good faith, in the light of all the other circum-
stances in the case.
In addition, because Respondent had abandoned its prac-
tice of contacting Rall personally in offering him employ-
ment, Rall was really given no effective opportunity to claim
the new job. Thus, Rall did not learn of the Respondent's
request until sometime after the job had been filled by Con-
nors. The fact that he was employed at Bethlehem did not
foreclose the possibility that he might wish to terminate that
employment and return to work for the Respondent. For
during 1971, when Rall had been employed at the Buffalo
Structural Steel Company, he was twice offered, and twice
accepted, employment with the Respondent. If other employ-
ment did not dissuade the Respondent from offering him
employment at that time, it would seem that normally the
Respondent would have given Rall equal opportunity to
make a similar choice in August 1974. However, as we have
seen, because the Respondent ceased to contact him person-
ally and offer him employment, Rail was deprived of the
opportunity of making the choice. This resulted in discrimi-
nation whatever the Respondent's intent. The Respondent
could not discharge its own obligation to Rall to his detri-
ment by transferring to the Union the responsibility of com-
municating with Rall, without assuming responsibility for the
failure of any such communication. In making the request to
the Union, the Respondent constituted the Union its agent to
make an adequate communication. The Union did not com-
municate with Rall before sending Connors to they job, but
merely contacted his home and learned that he was still em-
ERNST CONSTRUCTION
ployed at Bethlehem. Thus, Rail had no opportunity to claim
the job before it was filled by Connors. In these circumstances
it cannot be found that the Respondent on August 6 made an
adequate offer of employment to Rail, even if the Respon-
dent's good faith be assumed. -
3.
In addition, Rail's credited testimony is that he advised the
Respondent's office, when unable to communicate with Erec-
tion Superintendent Maurer because of Maurer's absence
from the city, that he was available for employment. Though
the Respondent's contention is that Rail's testimony in this
respect should not be credited, Rail's testimony is undenied
that in the August 10 conversation with Maurer, he told
Maurer of his calls to the union office. Maurer's testimony,
therefore, to 'the effect that he did not remember Rail's di-
rectly telling Maurer in the August 10 conversation that Rail
was available for employment, is therefore a nonsequitur. I
find that the Respondent was effectively advised after August
6 that Rail was available for employment.
4.
After Connors completed the work in the Buffalo area he
was sent with the crane to Tioga, Pennsylvania, in the juris-
diction of Local 542 of the Operating Engineers. The rig, with
Connors, was transferred to Tioga on August 19. Thus, again
the Respondent offered employment across jurisdictional
lines to a Local 17 operator. However, Connors did not finish
the job in Tioga. He left it one day before its termination,
apparently for the purpose of taking another job in the Buf-
falo area. To finish the Tioga job the Respondent called upon
crane operator Richardson of Local 17, who replaced Con-
nors on September 5. The Respondent's explanation for as-
signing Richardson was that someone was needed for the job
in a hurry and that Richardson lived in or near Wellsville,
New York." This was the first time that Richardson oper-
ated a crane for the Respondent since February 1974, when
he was injured in the automobile accident. Since that date
Richardson had been continuously employed by the Re-
spondent as a crane operator, and was so employed at the
time of hearing.
As has been stated before, Richardson was off work be-
cause of incapacity from the time of his accident, on or about
February 23, to duly 3. On the latter date, although he was
not physically capable of operating a crane, the Respondent
assigned him to covering welding or compressor machines on
the Chevrolet job. The Respondent cleared that assignment
with the Union in the same conversation in which Erection
Superintendent Maurer gave Union Business Representative
Schneider notice that he was laying off Rail. Thus while the
Respondent was preparing to layoff Rail, it was recalling
Richardson. When Richardson became physically capable of
operating cranes again is not disclosed.
13 I estimate from the map that Wellsville, New York, is in the neighbor-
hood of 80 miles from Buffalo and approximately 70 miles from Tioga, Penn-
sylvania.
5.
1077
A further instance of this disparity in opportunity is in the
employment of Thomas Green by Assistant Superintendent
Kessler to operate the 35-ton Lorraine in September 1974.
Again, though Rail was in layoff status with the Respondent,
he was not offered the job, and there is no explanation by
Kessler. That Rail had been employed by Bethlehem in early
August is not an explanation, even if proffered-which it was
not. Superintendent Maurer's testimony is that in the past
when the Respondent recalled men from layoff and found
them unavailable, if another vacancy occurred later, the Re-
spondent recalled them again. On no occasion since August
6, 1974, has the Respondent attempted to offer any job oppor-
tunities to Rail.
6.
Other facts also indicate that employment priorities ac-
corded other crane operators by the Respondent were not
accorded to Rail, although he was the senior employee and
an excellent operator. Thus, Erection Superintendent Maurer
explained that Ray Edwards was assigned the Leroy job be-
cause at that time Edwards was in layoff status. However, it
will be noted that at the time Ray Barrett was assigned to the
crane on the Tops Market job, Rail was in layoff status. The
explanation offered for this was that Barrett had previously
been operating the crane on the Tops Market job, but that the
crane had shut down for a period, and during that time
Barrett was assigned to covering the welding or compressor
machines on the job. Therefore, the Respondent says, it fol-
lowed the rule that when a machine is laid up and its operator
is laid off, he is entitled to recall when the machine resumes
operation. However, Barrett was not in layoff status at the
time he was returned to operating the crane on the Tops job.
In addition, it will be noted that when Barrett's crane shut
down he was assigned to covering the welding or compressor
machines on the job. When he was reassigned to the crane the
job of covering the other machines became vacant. There is
no adequate explanation as to why Rail was not offered that
job, as it had been offered to Barrett. One explanation sug-
gested by the Respondent is that it ordinarily does not employ
crane operators at covering welding or compressor machines.
But as has been seen, it did, not hesitate to employ Barrett in
that capacity, nor Richardson. Perhaps Richardson's assign-
ment could have been explained on humanitarian grounds,
namely, his need for employment while physically unable to
operate a crane. However the Respondent offers no such
justification. These facts reinforce the conclusion that Rail
was not offered employment opportunities after the issuance
of the Board's decision that were offered to other employees,
despite the Respondent's contention that it was attempting to
comply with the Board's order.
7.
For the facts given above appear clearly to refute the Re-
spondent's assertion. Thus, though Rail was the Respon-
dent's senior operator in the Local 17 area, and admittedly
competent, persons junior to Rail were offered employment
by the Respondent under circumstances in which, under the
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
Respondent's usual order of priority, the employment should
first have been offered to Rail. As a senior and competent
employee one would ordinarily suppose that the Respondent
would have preferred Rail, as it had in the past. However,
Rail's record of employment with the Respondent since May
1974, compared with the opportunities for such employment,
seem to suggest quite the opposite , that is, that rather than
being preferred for employment, Rail was disfavored for it
and opportunities for which he was qualified, and which it
would seem to have been in order to have been offered him,
were instead offered to others.
8.
In the absence of adequate explanation for these objective
circumstances, the only plausible explanation is that, rather
than having abandoned its discrimination against Rail, the
Respondent seems to have persisted in it. In this setting Erec-
tion Superintendent Maurer's testimony to the effect that
Kessler had no "empathy " for Rail , and Kessler's statement
to Wagner cautioning Wagner to watch that Rail did not
throw a wrench into the machinery, acquire significance.
They indicate that the objective evidences of disparate treat-
ment of Rail are to be ascribed to animus because of his
previous activities for which the Respondent discriminated
against him, and his filing and pressing of unfair labor prac-
tice charges . I perceive no other reasonable explanation. I
therefore find that at all times since Rail completed transport-
ing the crane to Massena , New York, approximately May 8,
1974, the Respondent has failed and refused and continues to
fail and refuse to restore Rail to the status, employment, and
terms or conditions of employment previously granted to and
enjoyed by him.14 It is further found that since that date
Rall has been denied opportunities for employment available
to other crane operators. It is concluded that by these actions
and this conduct the Respondent discriminated against Rail
in violation of Section 8(a)(3) and 8(a)(4) of the Act and
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act.
As I have previously indicated, similar findings follow with
respect to Daniel A. Wagner. Specifically it is found that by
the denial of employment opportunities to Rail after July 12,
1974, the Respondent also discriminated against Wagner in
violation of Section 8(a)(3) and 8(a)(1) of the statute.
No determination is made here-to the effect that Rail is
entitled to priority in employment because of his status as a
union steward. As I have indicated, that involves a matter of
interpretation of the contract, to be resolved under contrac-
tual procedures. The findings that Rail and Wagner were
discriminated against are based, not on contractual rights,
but on the Respondent's customary and past practices with
14 Though the complaint alleges that such a situation attains only since
on or about June 14, 1974, in accordance with my findings, the evidence is
that it began with completion of the transfer of the crane to Massena Thus,
there is no explanation as to why Rall was not offered the opportunity to
operate the crane at Massena, as other of the Respondent's operators were
offered opportunities to operate cranes outside of their jursidictional area
respect to the conditions of employment of Rail and other
employees.
It follows that at no time since his discriminatory discharge
on July 6, 1973, as found in the previous decision of the
Board, has the Respondent offered Rail reinstatement to the
same employee status on its work force which he occupied
prior to July 6, 1973, without prejudice to his seniority or
other rights-and privileges.
CONCLUSIONS OF LAW
Having found that the Respondent has engaged in unfair
labor practices by failing to accord Rail the status on Respon-
dent's work force that he occupied prior to July 6, 1973, and
by denying him opportunities for employment since on or
about May 8, 1973, which it accorded to -other employees,
because of his union or concerted activities and because he
had filed charges under the Act, the Respondent has dis-
criminated against Rail, discouraged membership in a labor
organization, and interfered with, restrained, or coerced em-
ployees within the meaning of Section 8(a)(1),- (3), and (4) and
Section 2(6) and (7) of the Act.
By denying employment to Wagner as a consequence of its
unfair labor practices directed toward Rail, the Respondent
additionally engaged in violations of Section 8(a)(3) and (1)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (4) of
the Act, it will be recommended that the Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act. It will be recommended that the Respondent be ordered
to offer Rail immediate reinstatement to the same employee
status on Respondent's work force that he occupied prior to
July 6, 1973, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss in earnings
he may have suffered by reason of the denial of employment
opportunities to him since May 8, 1974, by payment to him
of a sum of money equal to that which he would normally
have earned between that date and 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 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
It will also be recommended that the Respondent offer
Daniel A. Wagner immediate reinstatement to the employee
status on Respondent's work force that he occupied prior to
July 12, 1974, and make him whole for any loss in wages he
would normally have earned between that date and the date
of the offer of reinstatement, less net earnings, if any, during
such period, computed in the same manner as Rail.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ERNST CONSTRUCTION 1079
ORDER'-'
Respondent, Ernst Construction Division of Ernst Steel
Corporation, its officers, agents, successors; and assigns,
shall:
1. Cease and desist from:
(a) Failing to reinstate employees to the status on Respon-
dent's work force to which they are entitled, and failing or
refusing to offer employees employment, or otherwise dis-
criminating in regard to their hire, tenure of employment or-
any term or condition of employment, because they have
engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or because they
have filed charges under the Act;
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights under .
Section 7 of the Act.
2. Take the following affirmative action, necessary to effec-
tuate the policies of the Act:
(a) Offer Edmund L. Rall immediate reinstatement to the
same employee status on Respondent's work force that he
occupied prior to July 6, 1973, without prejudice to his se-
niority or other rights and privileges, and make him whole for
any loss of earnings- he may have suffered as a result of the
discrimination against him herein found, in the manner set
forth in "The Remedy" section herein;
(b) Offer to Daniel A. Wagner immediate reinstatement to
the same employee status on Respondent's work force that he
occupied prior -to July 12, 1974, without prejudice to his
seniority or other rights and privileges and make him whole
for any loss of earnings he may have suffered as a result of
the discrimination against him herein found, in the manner
set forth in "The Remedy" section herein;
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount to backpay due under the terms of this
Order. -
(d) Post at its yard or yards in the Buffalo, New York, area
copies of the attached notice marked "Appendix. 1116 Copies
of the notice, on forms provided by the Regional Director for
15 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
16 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."
Region 3, after being duly signed by Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED-BY ORDER OF THE -
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deprive employees of their status on our
work force, or fail or refuse to reinstate them to status
to which they are entitled, or deny them employment, or
otherwise discriminate against them- in regard to any
aspect of their-hire-or tenure of employment, because
they have engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion, or because they have filed unfair labor practice
charges against us, or testified in a National Labor Rela-
tions Board proceeding.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to.engage in, or to refrain from engaging in,
any or all of the activities specified in Section 7 of the
National Labor Relations Act, except to the extent that
such right may be effected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Acct.
WE WILL offer Edmund L. Rall immediate reinstate-
ment to the same employee status that he occupied on
our work force prior to July 6, 1973, without prejudice
to his seniority and other rights and privileges previously
enjoyed.
WE WILL offer Daniel A. Wagner immediate reinstate-
ment to the same employee status that he occupied on
our work force prior to July 12, 1974, without prejudice
to his seniority and other rights and privileges previously
enjoyed.
WE WILL make-Edmund L. Rall and Daniel A. Wag-
ner whole for any losses of pay that they may have
suffered by reason of the discrimination against them.
ERNST CONSTRUCTION DIVISION OF
ERNST STEEL CORPORATION