J. A. Ferguson Construction Co.

National Labor Relations Board - Board Decisions

Aug 12, 1968

172 N.L.R.B. 1494 (N.L.R.B. 1968)

1494 DECISIONS OF NATIONAL
J. A. Ferguson Construction Company and Eugene
Tolot, an Individual . Case 7-CA-6243
August 12, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 9, 1968, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief. Respondent
filed a brief in opposition to the General Counsel's
exceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following
modifications:
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) of the Act by
(1) discharging employee Eugene Tolot from the
Grosse Point project because of his grievance ac-
tivity; (2) offering on the same date to reinstate
Tolot upon condition that he renounce this activity;
and (3) subsequently discharging him from the
Macomb project for continuing to engage in such
activity. Respondent has not excepted to these
findings. In his remedy, the Trial Examiner did not
recommend the reinstatement of employee Tolot
because it "appeared at the hearing" that the
Macomb project had been completed. The General
Counsel excepts to this finding.
While we agree with the Trial Examiner that the
record contains some basis for concluding that the
Macomb project has been completed, we also find
merit in the General Counsel's contention that this
is not a sufficient basis for denying reinstatement.
Assuming, arguendo, that the project has been
completed, the record does not establish that Tolot
LABOR RELATIONS BOARD
was hired only for the duration of the Macomb pro-
ject. On the contrary, the evidence discloses that
Tolot was transferred earlier in July 1967 from the
project at Grosse Point to the Macomb project. It
may be therefore that if Respondent had unlawfully
discharged Tolot, it would have transferred him to
another project on the completion of the Macomb
job. In these circumstances, we shall alter the
remedy recommended by the Trial Examiner and
order Respondent to offer Eugene Tolot immediate
and full reinstatement to his former or substantially
equivalent position at the Macomb College project
if such project has not been completed, and if
completed, to a job on any other project of Respon-
dent's that he would have had but for Respondent's
discriminatory conduct, without prejudice to his
seniority or other rights and privileges.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, J. A. Ferguson Construction Company,
Farmington, Michigan, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from;
(a) Discouraging the prosecution of grievances
or other concerted activities by discriminating
against employees in regard to their hire or tenure
of employment, their rates of pay, or any other
terms and conditions of employment.
(b) Conditioning offers of employment upon the
renunciation of their right to prosecute grievances or
engage in other concerted activities.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to engage in or to refrain from
engaging in, any or all of the activities specified in
Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which
the Board deems necessary and appropriate to ef-
fectuate the policies of the Act:
(a) Offer Eugene Tolot immediate and full rein-
statement to his former or substantially equivalent
position at the Macomb College project if such pro-
ject has not been completed, and if completed, to a
job on any other project of Respondent's that he
would have had but for Respondent's unlawful con-
duct.
(b) Notify the above-named employee, if
172 NLRB No. 165
J. A. FERGUSON CONSTRUCTION CO. 1495
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Make the above-named employee whole for
any loss of earnings he may have suffered as a
result of the discrimination against him in a manner
computed in accordance with the formula set forth
in the section of the Trial Examiner's Decision enti-
tled "The Remedy," as modified in the Decision
and Order herein.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) In the event that Respondent's operations at
the Grosse Point and Macomb projects are still in
progress, post at said projects copies of the at-
tached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 7, after being duly signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon
receipt thereof, and remain posted as long as opera-
tions on the Grosse Point and Macomb projects are
in progress, but for a period of no longer than 60
consecutive days from the date of posting in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or
covered by any other material.
(f) In the event that Respondent's operations at
the Grosse Point and Macomb projects have been
completed, mail copies of the notice to Eugene
Tolot and to all employees employed by Respon-
dent at the Grosse Point project on May 1, 1967,
and at the Macomb project on August 17, 1967.
(g) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage the prosecution of
grievances or other concerted activities, by dis-
criminating against employees in regard to
their hire or tenure of employment, their rates
of p;ay, or any other terms or conditions of
employment.
WE WILL NOT condition employment on the
abandonment of grievance activity or other
concerted activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing and to engage in concerted
activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to
refrain from any or all such activities, except to
the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-,Management Report-
ing and Disclosure Act of 1959.
WE WILL offer to Eugene Tolot immediate
and full reinstatement to his former or substan-
tially equivalent position at the Macomb Col-
lege project if such project has not been
completed, and if completed, to a job on any
other project of ours he would have had but
for our unlawful conduct without prejudice to
his seniority and other rights and privileges and
make him whole fin the manner provided in
the Board's Decision for any loss of pay he
may have suffered as a result of our discrimina-
tion against him.
WE WILL notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order " the words "a Decree of the United States Court of Appeals Enforc-
ing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
J. A. FERGUSON
CONSTRUCTION COMPANY
(Employer)
Dated By
(Representative ) (Title)
Pursuant to a Decision and Order of the National This notice must remain posted for 60 consecu-
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 500 Book Building , 1249 Washington Bou-
levard, Detroit, Michigan 48226, Telephone
226-3244.
TRIAL EXAMINER 'S DECISION
SIDNEY SHERMAN, Trial Examiner: The instant
charge was served upon Respondent on September
1, 1967,' the complaint issued on January 23, 1968,
and the case was heard on March 20, 1968. The is-
sues litigated related to the alleged discriminatory
discharges of Tolot.
Upon the entire record,' including my observa-
tion of the witnesses, I adopt the following findings
and conclusions:
1. RESPONDENT'S BUSINESS
J. A. Ferguson Construction Company , herein
called Respondent , a Michigan corporation, main-
tains an office in Farmington , Michigan, and
operates as a general contractor in the construction
of commercial , industrial , and institutional
buildings . It annually receives directly from out-of-
State suppliers products valued at more than
$175,000. Respondent is engaged in commerce
under the Act.
11. THE UNION
Detroit Metropolitan Area Executive Committee,
Bricklayers , Masons, and Plasterers ' International
Union of America , AFL-CIO, hereinafter called
the Union , is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The issues raised by the pleadings are whether
Respondet violated Section 8(a)(3) and (I) of the
Act by (a) discharging Tolot on May I and August
17 and (b) on May 1, conditioning his reinstate-
ment upon his renouncing his right to enforce the
terms of a union contract.
A. Sequence of Events
Early in 1967 Respondent was engaged in build-
ing a high school at Grosse Point , Michigan. The
job was covered by a contract with the Union,
which contained a number of provisions designed
to protect bricklayers against safety hazards and
onerous working conditions. The contract also con-
tained a grievance procedure culminating in ar-
bitration. With respect to the initiation of
grievances, the contract provided only as follows:
It shall be the duty of the [Union] steward to
enforce the terms of this agreement. He shall
endeavor to adjust with the foreman all
grievances that may arise on the job. Should
they fail to satisfactorily settle the grievance or
grievances, work shall continue and grievances
shall be referred to the business representative.
On January 4 Respondent hired Tolot to work on
the Grosse Point job as a bricklayer, which trade he
had followed for 18 years. There is no dispute that
during the next several months he complained on a
number of occasions about working conditions that
seemed to him to violate the contract. While some
of these complaints were brought by Tolot, himself,
to the attention of his foreman and, in one in-
stance, a state safety inspector was apprised by
Tolot of a hazardous condition, on all these occa-
sions Tolot complained to his steward, either before,
or about the same time as, he took the foregoing
direct action.
On April 30 Tolot was involved in a dispute over
the propriety of requiring the laying of brick at a
height more than 5 feet above the level of the scaf-
fold on which the bricklayers were standing.3 The
next day, Tolot's foreman told him that he was
being laid off for lack of certain materials. When
Tolot protested his layoff, Ferguson, Respondent's
board chairman, was summoned to the scene, and
reiterated the reason for the layoff. A discussion
ensued between Ferguson and Tolot, the details of
which will be discussed below. Later that day Tolot
reported his layoff to a union business agent who
prevailed upon Ferguson to take him back to work
the next day.
Early in July, Tolot was transferred to another
jobsite where he worked until his final discharge on
August 17 . During that period he complained to his
steward about several matters which he deemed to
be contract violations, and in each instance cor-
rective action was taken after the steward brought
the matter to the attention of management.
Early in the morning of August 17 Tolot's
steward left the jobsite to take other employment.
When, later that day, Foreman Brassell had occa-
sion to use a laborer to help him set a lintel, Tolot
complained to the foreman that he was thereby
violating the contract. Upon Brassell 's rejoining
that Tolot should take the matter up with his
steward, Tolot disputed that there was, in fact, any
All dates refer to 1967, unless otherwise stated
' For corrections of the transcript . see the order of April 19, 1968
3 Article X11 , section 2 of the contract provides - scaffold shall not
be over 4 feet in height for twelve inch (I 2") block work or combination
brick and block work, five feet for brick or partition tile " (Emphasis sup-
plied ) Although inartistically phrased , this apparently means that no brick
shall be laid at a height of more than 5 feet above the level of the scaffold
At any rate , it is clear from the record that this was the interpretation
placed on the clause by the parties
J. A. FERGUSON CONSTRUCTION CO.
steward on the job. An unsuccessful effort was
made to resolve this issue by calling the union hall.
Later that day, after Ferguson had been apprised of
the foregoing events , Tolot was discharged, osten-
sibly for refusing to work. He has not been rehired.
B. Discussion
1. The May I discharge
The General Counsel contends that Tolot's first
discharge on May 1 was prompted by Respondent's
resentment of his grievance activity. In its answer
Respondent asserts that Tolot was discharged on
May I because "he left his scaffold and refused to
work without advising the steward or foreman on
the job that he was leaving his work station and
why he refused to work."
Tolot's first discharge was admittedly
precipitated by an incident on April 30 involving an
alleged grievance by him over the working condi-
tions . Tolot's version of this incident was that he
had previously twice complained to his steward that
Respondent was not complying with the rule in the
union contract against laying brick at a height more
than 5 feet above the level of the scaffold,' and
that, finally, on April 30, the steward took the
matter up with the foreman, who agreed to abide
by that rule; that, when the men working on the
scaffold, including Tolot, reached the 5-foot limit,
Tolot called that fact to the attention of the
foreman, requesting that he raise the scaffold or as-
sign the men to work elsewhere; and that, since
there was not sufficient labor available at the mo-
ment to raise the scaffold, the men were assigned
other work. The steward, Peters, confirmed that
Tolot had complained to him about the violation of
the 5-foot rule and that late in April the witness
consulted the foreman who agreed to observe that
rule, and that, when the men thereafter reached 5
feet, they were assigned to work elsewhere. The
foreman in question was not called to testify. Ac-
cordingly, in view of Peters' corroboration and, ab-
sent any contrary testimony, I credit Tolot's version
of the incident.
As to the events of May 1 Ferrick, who was
Tolot's regular foreman, testified that on that day
he was informed that the preceding day, while
working under another foreman, Tolot had left the
scaffold on which he was working, complaining that
it was unsafe; and that the witness promptly re-
ported to Ferguson that Tolot had "left the scaffold
without going through proper channels," and
recommended that he be discharged.
Ferguson testified that on May 1 he was told by
Ferrick that Tolot twice left the scaffold, without
notifying his steward or foreman, because of an ob-
jection to a violation of a union rule; that the wit-
See fn 3, above
' As already related, Ferrick told Tolot he was being laid off for lack of
certain materials Admittedly, this was not the real reason for Respondent's
1497
ness felt that such conduct could not be tolerated
and instructed Ferrick to discharge Tolot; that later
that day, upon learning that Tolot was protesting
his discharge, the witness informed Tolot that he
was being discharged for not abiding by the
procedure prescribed in the Union's contract,
which required that all employee complaints be
channeled through the steward; that Tolot insisted
that he would work only under the terms of the
union agreement, but, at the same time, stated that
he would not abide by the prescribed grievance
procedure; that later that day Smith, the Union's
business agent, called the witness, who explained,
in effect, that Tolot had been discharged for not
complying with proper procedure; that Smith stated
that he had discussed the matter with Tolot, who
agreed that, if he was rehired, he would abide by
the prescribed procedure; and that the witness
agreed to rehire Tolot on that condition. Tolot, in
fact, returned to work the next day.
Tolot's version of the events of May 1 was that,
after he protested as specious the reason given him
by Ferrick for his "lay-off,"5 Ferguson arrived on
the scene and a discussion ensued in the presence
of Ferrick and another bricklayer, Bellestri. Ac-
cording to Tolot, Ferguson asserted that he had
been in business 20 years without having any union
trouble, but, since Tolot had come on the job, busi-
ness agents had been there every other day; that
Tolot was "nothing but a union troublemaker"; that
he could not understand why one as tall as Tolot
should complain about having to lay brick at a
height of more than 5 feet;' and that Ferguson
would be better off if Tolot would go to work for
one of Respondent's competitors. Tolot added that
he and Ferguson, at the latter's suggestion,
proceeded to the office on the project where he of-
fered to rescind Tolot's discharge, if he would
promise not to create any more "union problems,"
which offer Tolot rejected; that he was rehired the
next day after a call to Ferguson from a union busi-
ness agent ; that the witness, at the union hall,
listened in or the telephone conversation between
Ferguson and the business agent; that there was no
reference in that conversation to the proper
procedure for filing complaints; and that, when
Tolot reported for work the next day, Ferrick ad-
monished him that he would be discharged if he
caused "any more problems."
Although Ferguson denied that he told Tolot
that, since he had been hired, the job had been
visited by a business agent every other day, both
Ferrick and Bellestri , who testified that they were
present at the time , corroborated Tolot in that re-
gard, and Bellestri , in addition, substantially con-
firmed the balance of Tolot's version of the conver-
sation , including Ferguson's insistence that Tolot
should have no difficulty in laying brick at a height
action
s Tolot was 6 feet 4 inches tall
354-126 O-LT - 73 - pt 2 - 23
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in excess of 5 feet. Moreover, both Ferrick and Bel-
lestri denied hearing Ferguson tax Tolot with flout-
ing the grievance procedure. Finally, Ferguson's
own version of this aspect of the incident seems im-
plausibe , since he portrays Tolot as repudiating the
contractual grievance procedure , even while insist-
ing that he would be governed only by the terms of
the contract!
Accordingly, I do not credit Ferguson's testimony
that the thrust of his initial conversation with Tolot
on May I was that he was being discharged for
bypassing the steward on grievances. I credit rather
Tolot's testimony that Ferguson's remarks on May
I focused on the frequency and nature of the com-
plaints made by Tolot, and that no reference was
made to the matter of procedure. Accordingly, I
find that the former factors at least contributed to,
if, indeed, they were not the sole reason for the
May I discharge.
Moreover, as he has been found with regard to
other aspects of this incident to be a more credible
witness than Ferguson, I credit, notwithstanding the
latter's denial, Tolot's testimony that Ferguson of-
fered, in effect, to rescind the discharge, if Tolot
agreed not to make any more complaints about
contract violations. This circumstance buttresses
the conclusion that it was the fact and extent, rather
than the manner, of Tolot's grievance activity that
led to his discharge on May 1.
I also credit Tolot's version of the telephone con-
versation between Ferguson and the union business
agent, Smith, concerning the rehire of Tolot, and
find, contrary to Ferguson's testimony, that there
was no discussion at that time of Tolot's conform-
ing to the prescribed grievance procedure.
In any event, even if one credits the testimony of
Ferguson and Ferrick that Tolot was discharged for
supposedly leaving his scaffold on April 30, one
fails to perceive how this would help Respondent's
case. In the first place, consistently with the
findings heretofore made as to what actually hap-
pened on April 30, 1 find, that any report Ferrick
may have received that Tolot left the scaffold,
without consulting his steward or foreman, was er-
roneous.
As already related, Tolot had consulted his
steward, who in turn prevailed upon the foreman to
observe the 5-foot limit, and all that Tolot did was
to call the foreman's attention to the fact that that
limit had been reached on April 30, and request
that he take appropriate action, which he did. It
' See Rotax Metals. Inc , 163 NLRB 72. and discussion thereof in the
text, below
" Emphasis supplied
Section 9 ( a) of the Act
10 In fact, under Section 9(a) Tolot would have been within his rights in
negotiating with Respondent directly concerning an adjustment of any
grievance presented by him , so long as such adjustment was not incon-
sistent with the terms of the Union 's contract and the Union was given an
opportunity to be present at the adjustment There is no contention nor
evidence that any of the adjustments made at the Grosse Point job pursuant
to complaints made by Tolot was inconsistent with the terms of the Union's
contract , and certainly this was not true of the 5-foot limit issue As for the
may be contended that, in making this request,
Tolot was voicing a grievance directly to manage-
ment . However , it seems that , properly defined, a
grievance by an employee denotes only a complaint
about something required of him by management.
Here , the foreman had already agreed that he
would not require the bricklayers to go above 5
feet, and Tolot had no reason to believe that the
foreman would not honor that agreement . In this
view, Tolot's request that the foreman either raise
the scaffold or assign the men elsewhere was not
the statement of a grievance , but merely a request
that the foreman implement the grievance adjust-
ment already made. For that reason alone, Tolot's
action on that occasion could not have been in
derogation of the steward's function under the con-
tract.7
Furthermore, I am not persuaded that, even if
Tolot's conduct on April 30 be deemed to have
constituted a bypassing of the steward with respect
to a grievance, such conduct would be unprotected.
While the contract imposes on the steward the duty
of enforcing the contract and of "endeavoring to
adjust with the foreman all grievances that may
arise on the job ,"8 the contract is silent as to the
right of an employee to present a grievance directly
to a foreman; and, indeed, in view of the express
statutory reservation of that right to "any individual
employee,"8 it seems clear that the Union had no
statutory power to bargain away that right, so that
any contractual limitation thereof, even if it existed,
would be nugatory.1° At any rate, in the absence of
any provision in the contract dealing expressly with
the right of employees to present grievances
directly, it cannot be assumed that there was any
intent to abrogate by contract the safeguards of
Section 9(a), even if such abrogation were per-
missible. While apart from the provisions of the
contract, the Union was entitled, by virtue of its
role as bargaining agent , to be afforded an opportu-
nity to be present at any adjustment of a grievance
between an employee and management,' there is
no contention nor evidence that Tolot foreclosed
the Union from being present at any such adjust-
ment, nor is there even any evidence that he was on
any occasion lacking in diligence in notifying the
Union of an impending grievance adjustment.'
It may be contended that if Tolot be found to
have bypassed the steward on April 30 and
presented a grievance directly to management, such
action would not be protected because it did not
Union's opportunity to be present , while the statute does not so specify, it
seems proper to construe Section 9( a) as imposing on the employer rather
than the grievant the duty of notifying the Union of an impending adjust-
ment This is so, because the employer would normally be in a better posi-
tion than the grievant to know what disposition it intends to make of the
grievance and when that disposition will be communicated to the grievant.
" See preceding footnote
" Moreover , even if there were any such evidence of lack of diligence,
that would not remove him from the protection of the Act See in 10,
above
J. A. FERGUSON CONSTRUCTION CO. 1499
constitute concerted activity. Here, reliance might
be placed on a dictum in Farmers Union Co-opera-
tive13 as follows:
. the Board has also held that, where an em-
ployee does not utilize his contractual right to
grieve or goes "over the head" of his bargain-
ing agent to press his individual claim, his
grievance becomes "personal" and loses the
statutory protection.
As no cases are there cited, it is not entirely clear
what situations are contemplated by the foregoing
language. It may well be that the Board had in mind
only grievances which, unlike the situation here, af-
fected only, and were peculiar to, the grieving par-
ty. In such cases the rule seems to be that the
presentation of such a grievance is not a concerted
activity, unless the employee utilizes the grievance
machinery of the contract. That this was in fact the
Board's reasoning is indicated by the language that
immediately follows the above excerpt, wherein it is
explained that an employee 's grievance activity is
protected, even though he is claiming an "inequity"
to himself alone, so long as he utilizes the machin-
ery of the contract.
However , none of the foregoing considerations
would seem to be properly applicable where, as
here, the grievance under consideration charged a
violation of a collective -bargaining contract, which
necessarily affected a number of employees.14 In
such a case, the activity of the grievant in seeking
to enforce the collective contract for the benefit of
others, as well as himself, would seem to constitute
concerted activity within the meaning of the Act.
In any event, the Board in Rotax Metals, Inc.,15
adopted the Trial Examiner's finding that the
above-quoted dictum from Farmers Union did not
apply where the employee made a direct request to
his employer for adjustment of a grievance only
after his bargaining representative had taken the
matter up with management . Under those circum-
stances, the Trial Examiner concluded that the em-
ployee did not forfeit the protection of the Act by
complaining directly to the employer of "breaches
of contract which affected him as well as other em-
ployees." So, here, it having been found that
Tolot's direct request to his foreman on April 30
was merely designed to effectuate the grievance ad-
justment already negotiated by the Union, it would
seem a fortiori that he did not by such direct action
forfeit the protection of the Act.
To summarize, I make the following findings re-
garding the May 1 discharge:
1. That the only reason assigned by Respondent
at the hearing for such discharge was Tolot's sup-
posed conduct on April 30 in leaving his work sta-
tion without permission in protest of a violation of
the union contract, instead of processing his com-
plaint through the steward under the contractual
grievance procedure.
2. That Tolot did in fact leave his work station
without permission on that date, but merely
requested that his foreman implement the terms of
the grievance adjustment already negotiated
between the foreman and the steward, and he was
transferred by the foreman to other work pursuant
to such request.
3. That such request was not in derogation of the
grievance provisions of the contract because (a) it
did not constitute the presentation of a "grievance"
and (b) even if it did, the contract did not, and
could not, lawfully preclude Tolot from presenting
grievances directly to his foreman.
4. That, even if it be assumed that, in making
such request of his foreman, Tolot was voicing a
grievance without utilizing the grievance machinery
in the contract, such conduct would, nevertheless,
constitute concerted activity, since such "griev-
ance" pertained to a violation of a condition of
employment, prescribed in the contract, which
affected not only Tolot, but all the bricklayers on
the job.
5. That it follows that Tolot's foregoing conduct
on April 30, whether viewed as the presentation of
a grievance or as merely a request for affectuation
of the terms of a grievance adjustment, was pro-
tected, concerted activity; that any erroneous belief
that Respondent ma have entertained that
Tolot's grievance activity on April 30 was in-
subordinate or in breach of contract would not
justify discharging him for such activity;16 and that
his discharge for such activity, therefore, violated
Section 8(a)(1) of the Act.17
It is also found that, by, in effect, conditioning
the rehire of Tolot on his renouncing all future
grievance activity, Respondent additionally violated
Section 8(a)(1) of the Act.
2. The August 17 discharge
As already related, early in July, Tolot was trans-
ferred from Grosse Point to the Macomb College
job, where he was again discharged on August 17.
The General Counsel contends that Tolot's second
discharge was prompted by his grievance activity at
the new jobsite. In its answer to the complaint,
Respondent states, in substance , that Tolot was
discharged on August 17, because he insisted on
presenting a grievance, without the intervention of
his steward, and declined to work pending adjust-
ment of the grievance.
At the Macomb College job Tolot made various
complaints to his steward , Bommarito , about con-
tract violations, including the laying of brick at a
height above 5 feet, the unsafe condition of the
" 145 NLRB 1, 3
" It is clear that the grievance over the 5-foot limit, as well as Tolot's
other complaints at Grosse Point , related to conditions of work affecting
the safety and welfare of all the bricklayers on thejob
15 163 NLRB 72
'" N L R B v Burnup and Sits, Inc , 379 U S 21
'' There is no need to determine whether such discharge also violated
Section 8(a)(3) of the Act Rotax Metals, Inc , supra, fn 3
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scaffold , and the operation of a saw by the
foreman , Brassell . In each instance the steward
took the matter up with the foreman who agreed to
take corrective action . However , on two of these
ioccasions the foreman indicated that he was aware
that Tolot had instigated the complaint and ex-
pressed resentment of Tolot 's grievance activity.
Thus , after the incident involving the saw, Brassell
taxed him with wanting "everything to go by the
book ," and with "causing all the trouble"; and,
after another one of these incidents the foreman
castigated Tolot for interfering with the foreman's
management of the job and asked Tolot if he
thought he was "The Jolly Green Giant ," and if he
wanted his paycheck . On still another occasion
Tolot was present during a dispute between the
steward and job superintendent , Little , over the
proper height of a scaffold , and Tolot took part in
the discussion . The superintendent made some re-
mark to Tolot , referring to his difficulities on the
Grosse Point job and declared that the superinten-
dent did not want the same " troubles" on the
Macomb job. The superintendent then took Tolot
off the scaffold and assigned him to work on the
ground , observing that he ( Little ) did not want any
"union problems.""
Brassell admitted that he knew of Tolot 's involve-
ment in at least one of the foregoing incidents (The
Jolly Green Giant episode ), and that Brassell com-
plained to the president of the Union about Tolot's
militance on that occasion. The record shows that
this occurred about 2 weeks before Tolot's
discharge.
Early in the morning of August 17, Steward Bom-
marito came to the shanty at the jobsite, collected
his tools, announced to Tolot and the other
bricklayers that he was quitting the job, and de-
parted. When Tolot , Kunz, and two other
bricklayers then proceeded from the shanty to their
work station , Kunz remarked that he had been
requested by Bommarito to take over the duties of
steward , but that Kunz did not want to be steward.
Kunz asked two of the others to assume the post,
but both refused.19
Later that day, when he observed Foreman Bras-
sell setting lintel with the aid of a laborer, Tolot
protested to him that under the contract he was
required to use a bricklayer . According to Tolot,
when Brassell retorted that Tolot was not the
steward , he told Brassell that there was no steward,
and that the Union would appoint oneY° and
proposed that they telephone the union hall to veri-
fy this, and Brassell agreed.
Brassell 's version of this phase of the incident
was that in notifying Brassell that morning of his
resignation , Bommarito also stated that Kunz would
act as steward; that when, later that day, Tolot
protested the use of a laborer by Brassell to set a
lintel , Brassell suggested that he take the matter up
with the steward ; that Tolot replied that there was
no steward ; that the witness rejoined that he had
been notified by Bommarito that Kunz was the new
steward; that Tolot disputed that Kunz was going to
be the steward; and that after some more rather
heated remarks Tolot announced , " We will see
about it right now," threw his tools down, and
started off to the project office.
It is undisputed that both men proceeded to the
office where a call was placed to the union hall,21
but no union officials could be reached; that both
men then started back to their work station, and on
the way encountered Ferguson together with
several other representatives of management; and
that , in response to an inquiry , Brassell explained
that Tolot was disputing the authority of the new
steward.
Tolot testified that at this point he explained to
Ferguson that he was not objecting to the steward,
but only to the setting of a lintel with a laborer;
that , after taxing him with always causing trouble,
Ferguson instructed Brassell to discharge Tolot;
and that , when Brassell asked for a reason, Fer-
guson answered , " For refusing to work ," and or-
dered Tolot off the premises . The notice later
handed Tolot by Brassell, in fact, gave as the reason
for his discharge , " refused to work."
Ferguson 's version of the foregoing encounter
was that, upon learning from Brasell that there was
a dispute over setting a lintel and that Tolot would
not accept Kunz as the new steward, Ferguson
stated that , if he would not accept Kunz, Tolot
should be discharged ; and that Tolot then at-
tempted to engage Ferguson in conversation about
the matter , but he refused to become involved.
When asked specifically why he discharged Tolot,
Ferguson answered:
He refused to take the problem he had to the
steward on the job and would not acknowledge
that we had a steward on the job , and he was
taking the complaint directly to the Union.
At the same time Ferguson insisted that Tolot
refused to work on that occasion , but Ferguson was
unable to offer any intelligible explanation of what
such refusal consisted of. Finally, he conceded that
there was no such refusal before he authorized
Tolot's discharge , but maintained that there was
such a refusal after Tolot and Brassell had left the
others and engaged in a private conversation. How-
ever, even his contention was apparently aban-
doned when Ferguson admitted that he did not
know whether the alleged refusal occurred before
or after Brassell effected Tolot 's discharge;22 and
'" The findings in this paragraph of the text are based on Tolot's uncon-
tradicted testimony, which I credit
1" The findings in this paragraph are based on Tolot's uncontradicted
testimony , which is credited
" ° Under the Union's constitution , only a full-time union officer-e g , a
business agent-was authorized to appoint a steward
" The record elsewhere indicates that Brassell was the one who actually
made the call, as Tolot testified, without contradiction, that Brassell re-
ported the result of the call to Tolot
" It was Ferguson 's contention that he merely gave Brassell discretion to
discharge Tolot . and that the decision to discharge was actually made by
Brassell
J. A. FERGUSON CONSTRUCTION CO.
Ferguson disclaimed any responsibility for the
preparation of Tolot's discharge notice or for the
reason assigned thereon for the discharge.
Brassell testified that on the above occasion,
after he reported to the other management
representatives that Tolot objected to the new
steward , Tolot attempted to intervene in the discus-
sion but Ferguson ordered him back to work with
the admonition to take up any complaints with the
steward; that Tolot insisted that he did not believe
that Kunz would be the new steward, and inter-
jected a reference to the dispute over the lintel; and
that Ferguson, finally, suggested that Brassell pay
Tolot off. Brassell assumed responsibility for the
wording of the discharge notice, explaining the
reference thereon to a refusal to work as follows:
I took it he refused to work under the condi-
tions with the steward that we had on the job
I had no reason to believe that he wasn't
steward and yet Gene Tolot seen fit to leave
the building and go to the front office ... plus
getting into an argument with Mr. Ferguson
over union regulations of what I should do and
what I shouldn't do.
Construed most favorably to Respondent, Bras-
sell seems to be saying here that Tolot's refusal to
work consisted in leaving his work station on his
own initiative to call the Union about the status of
Kunz, and that a contributing factor in the
discharge was Tolot's efforts to discuss with Fer-
guson the dispute over the lintel-setting matter.
And, later in his testimony , Brassell affirmed that
he discharged Tolot because he left his work to call
the Union. However, when asked why he did not
discharge Tolot at that time, Brassell answered that
he was willing to overlook the matter then because
of Respondent's past unfortunate experience with
Tolot, but that he decided to discharge Tolot after
the encounter with Ferguson, because of Tolot's ef-
forts to draw Ferguson into a discussion instead of
taking his problem to the steward. Brassell added:
I feel that he is refusing to work with the
steward when he is telling the man he is not
going to be the steward on the job. I feel that
he doesn't have the right to pick the steward
on the job.
At this point, Brassell again cited as a contributing
factor the fact that Tolot had got into an argument
with Ferguson, refusing to process his complaint
through the proper channels. Finally, when pressed
for the primary reason for Tolot's discharge, Bras-
sell answered that it was because Tolot refused to
work under Kunz as steward, and insisted on deal-
ing directly with management rather than proceed
=' At any rate, on the basis of demeanor, I credit Tolot's testimony that
his suggestion that they call the Union was approved by Brassell, and reject
his testimony that Tolot left work without permission
The lintel incident m'olsed the application of art Xl, sec 2 of the
union contract
"Since the grievance over the lintel ne%er reached the "adjustment"
1 501
through proper channels, and Brassell admitted
that, if he had not objected to Kunz, Tolot would
not have been discharged.
It is clear from the foregoing that Ferguson knew
of no refusal to work before Tolot's discharge, that
the only such refusal cited by Brassell was Tolot's
excursion to the project office to call the Union,
and that Brassell finally admitted that it was not this
circumstance but Tolot's rejection of Kunz as a
steward and refusal to process the "lintel"
grievance through him that triggered the
discharge.23
Thus, it appears that Brassell 's final position as to
the reason for Tolot's discharge was substantially
the same as that adopted by Ferguson (when
stripped of his equivocal and self-contradictory
references to an alleged refusal to work)-namely,
that Tolot was dismissed because of his refusal on
August 17 to take up his grievance with Kunz, in-
sisting, instead, on presenting it directly to manage-
ment . This raises essentially one of the same issues
that has already been considered in connection
with the May 1 discharge-namely, whether Tolot's
direct presentation to management of a grievance
concerning a breach of the union contract,24 which
adversely affected the bricklayers on the job, as a
group, would constitute protected, concerted ac-
tivity. For reasons there stated, it is found that such
conduct by Tolot on August 17 was protected con-
certed activity. This result is supported here by the
additional consideration, not present on May 1,
that, according to Tolot's uncontradicted
testimony, which I credit, Kunz had manifested a
disinclination to act as steward, and that, in any
event, under the Union's constitution the new
steward would have to be appointed by a union
business agent or other union officer. Here, by
Brassell 's own admission, Kunz was not in fact so
appointed until August 20. Thus, on August 17,
there was no de jure steward on the job (and it is
not even clear that there was any one who was in
fact willing to, or did, act as steward). It would
seem to be an implied condition of the clause in the
union contract requiring stewards to try to adjust
all grievances that there be a duly appointed
steward on the job. Accordingly, the absence of
such a steward on August 17, affords additional
reason for holding that such clause did not preclude
Tolot from presenting his grievance directly to
management.25
It follows, and I find, that, even if one disregards
the abundant evidence of Respondent' s animus
toward Tolot because of his past grievance activity
and accepts the reason given by Respondent at the
hearing for Tolot's second discharge, such
stage , there could be no question here of Tolot's infringing on the Union's
right under Section 9(a) to be present at such adjustment nor of any con-
flict between such adjustment and the union contract (As a matter of fact,
with regard to the last point, the record shows that Brassell was sub-
sequently fined by the Union for using a laborer to set the lintel )
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge nevertheless, violated Section 8(a)(1) of
the Act.26
IV. THE REMEDY
It having been found that the Respondent vio-
lated Section 8(a)(1) of the Act, I shall recommend
that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent discrimina-
torily discharged Tolot on May 1 and August 17, I
shall recommend that Respondent be required to
make him whole for any loss of earnings suffered by
reason of the discrimination against him. Backpay
shall be computed in accordance with the formula
stated in F. W. Woolworth Company, 90 NLRB 289;
interest shall be added to backpay at the rate of 6
percent per annum . Isis Plumbing & Heating Co.,
138 NLRB 716.
As it appeared at the hearing that the Macomb
County College project has been completed, it will
be recommended that, in lieu of the usual reinstate-
r" Respondent adduced evidence that Ferguson 's activities in promoting
safety had been recognized by appointments to high posts on various state
and industry safety organizations I have taken such evidence into con-
sideration and am prompted thereby to make the following comments No
inference should be drawn from the findings made above that Respondent
was less safety conscious nor less inclined to observe its union contracts
than the general run of employers However , it is clearr that in Tolot
Respondent encountered an individual who had intellectual endowments
and resolution well above those of his fellow workers , and who chose to
devote these qualities to the detection , and correction , of any deviation
from the myriad of contractual safeguards against unsafe and onerous
ment remedy, Respondent be ordered (1) to notify
Tolot in writing that, if he should apply in the fu-
ture for work at any of Respondent's projects, his
application will be considered on a nondiscrimina-
tory basis, and (2) to forward at the same time to
Tolot and to all others employed on the Grosse
Point High School and Macomb County College
jobs copies of the notice appended, below, to my
Recommended Order.27
CONCLUSIONS OF LAW
Respondent has violated Section 8(a)(1) of the
Act by the discharge of Eugene Tolot on May 1 and
August 17 because of his grievance activity, and by
offering on May 1, to reinstate him upon condition
that he renounce such activity.
[Recommended Order omitted from publica-
tion.
working conditions It may well be that any other employer, however, well
disposed to unions and their contracts , would not have reacted any dif-
ferently to one of Tolot 's persistence and militancy
I have no doubt that Ferguson and his supervisors felt that Tolot's com-
plaints, while justified by the letter of the union contract, were unreasona-
ble in that they did not take into account special circumstances or the ex-
igencies of the job However, the forum for litigating that question was the
grievance procedure of the contract or the bargaining table , where Respon-
dent could have negotiated for some qualification of the strict require-
ments of the existing contract
11 See Interborn Contractors, litc , 157 NLRB 1295