Walter S. Johnson Building Co., Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 428 (N.L.R.B. 1974)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter S. Johnson Building Co ., Inc. and Harry R.
Palladino . Case 3-CA-4873
March 6, 1974
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 26, 1973, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
the Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Walter S. Johnson
Building Co., Inc., Lockport, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
HENRY L . JALE1TE, Administrative Law Judge : This case
involves allegations that the above-named employer
violated Section 8(a)(1) of the Act by discharging its
employee Harry R. Palladino , the Charging Party herein,
because he engaged in protected concerted activities. The
proceeding was initiated by a charge filed on April 10,
1972,1 pursuant to which complaint issued on August 24,
1973. On September 20, 1973 , hearing was held in Buffalo,
New York.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the brief filed by
General Counsel , I make the following:
FINDINGS OF FACT
1. 1HE FACTS
Respondent is a New York corporation with its principal
office and place of business in Niagara Falls, New York.
Respondent is a contractor in the building and construc-
tion industry engaged in construction at various jobsites,
including a jobsite known as the Harrison Radiator jobsite
in Lockport, New York.2 At all times material herein,
Respondent has been party to a contract with the
Laborers' International Union of North America, Local 91
(herein called the Union). Palladino is a member of that
Union who was employed by Respondent in September
1971 and who was the Union's steward at the jobsite.
Shortly after he started working, Palladino began to voice
complaints about working conditions which he deemed to
be unsafe and in violation of the safety code of the State of
New York and about working conditions which he
considered to be in violation of the provisions of the
contract between Respondent and the Union.
The first complaint about safety conditions occurred
about the middle of October and it related to the absence
of shoring in an excavation. According to Palladino,
material which had been dug from the trench had been
stacked close to the top of the trench and it would roll
down into the trench endangering laborers working in it.
He complained about this to Respondent's superintendent
John Naglehout, but Naglehout refused to do anything.
Palladino told him he would call in the State safety
inspector to have the condition fixed and Naglehout
replied, in effect, that he was free to do so. Palladino called
the state inspector and after an inspection Respondent was
required to remedy the condition. Despite this experience,
the same condition was repeated in other parts of the
excavation. Each time Palladino would take the matter up
with Naglehout and remind him of the order issued by the
State inspector and Naglehout's answer would be that if
Palladino wanted it fixed he could call the State inspector.
In either December 1971 or January 1972, Palladino
complained to Naglehout about the absence of ladders in
an excavation to permit the men to escape from the trench
quickly in the event of a wall coming down. On two
occasions, he complained about unsafe ladders.
In late November, Respondent received a trailer load of
insulating material in granular form which is packaged in
bags. Palladino and the labor foreman were assigned to
unload the trailer and in the course of doing so Palladino
testified he became nauseated and for 3 or 4 days
afterwards he and the foreman were sick. He spoke to
Naglehout about it and asked him to check on the material
in the event of another load so that the men could be
supplied with respirators. On December 24, another load of
the same material was received and four laborers were
assigned to unload it. Upon learning this Palladino went to
Naglehout and asked about respirators reminding him of
his and the foreman's illness when they unloaded the first
trailer load. Naglehout told him he'd have to call the State
inspector. Palladino did and as a result Respondent was
I Unless otherwise indicated all dates appeanng hereinafter are in 1972 and I find, that Respondent meets the Board's direct inflow standard for the
T Commerce is not in issue The complaint alleges. the answer admits, assertion ofjurisdiction
209 NLRB No. 76
WASHINGTON S. JOHNSON BUILDING CO.
required to furnish respirators and safety glasses to the
laborers.
In either December or January, Palladino complained to
Naglehout about a portable generator which was not
properly grounded and which caused employees to get
electrical shocks. He obtained no satisfaction, called the
State inspector, and Respondent was required to ground
the generator.
Towards the end of December, Respondent was using a
cherry picker to lift buckets of concrete to a point where it
was forming concrete walls and in the course of operating
the cherry picker the operator made a mistake and almost
caught Palladino between the body of the cherry picker
and the bucket full of concrete. Palladino got angry at the
operator and in the exchange that followed learned that the
operator's license had expired. Palladino reported to
Naglehout that the operator was not qualified to operate
the machine and told him to obtain an operator with a
license before someone got hurt. Palladino obtained no
satisfaction from Naglehout, so he called the State
inspector. Upon the inspector's discovery that the operator
did not have a license he stopped him from operating the
cherry picker, although according to Naglehout's testimo-
ny, which I credit, he was permitted to complete the pour.
On another occasion Palladino complained about debris
in the working area, but Naglehout refused to do anything
about it. Palladino called the State inspector again and
Respondent was ordered to make the working area
reasonably safe.
According to the contract, Article VI, Section 4(b), the
steward is required to be on the job whenever laborers are
working. It appears that this means if any work covered by
the contract is to be performed, and only one laborer is
required, the laborer to whom it shall be assigned is the
steward. On one occasion Palladino observed that materi-
als had been delivered to the job by someone over the
weekend. He learned this had been done by the general
superintendent and he claimed 2 hours show-up pay on the
ground it was laborers' work and he should have been
called to bring the materials to the job. His claim was
upheld. On another occasion, a laborer had brought
material to the job at 7:30 a.m. (starting time was 8 a.m.).
Palladino learned this laborer had not been paid for this
work and he claimed pay for the laborer in question, and
for himself, as he should have been given the work. His
claim was upheld.
On one occasion, Palladino became involved in trying to
obtain boots for a laborer, and on another occasion he was
involved in a dispute over the condition of rain gear. The
contract required Respondent to provide boots and rain
gear.
Another matter in which Palladino became involved
concerned the covering of fresh concrete with blankets to
protect it from the cold. According to Naglehout, blanket
covers are laid in two ways. One way is merely to lay the
blanket over the concrete and to keep it in place by placing
heavy objects upon the blanket. The second way involves
tacking the ends of the blanket into the sides of the form,
3 Palladino denied this He claimed the laborers in fact laid the blankets
and not the carpenters Palladino did not impress me as a credible witness
and I do not credit his testimony where it conflicts with Naglehout's
429
not so much to secure the blanket as to protect the sides of
the blanket from resting in mud or water and becoming
damaged. This latter method requires the nailing of strips
of wood to the blanket and the sides of the form, and for
this reason was considered by Naglehout to be carpenter's
work. The former method was regarded as laborers' work.
According to Naglehout, there were many instances
when blankets were laid by the laborers with no dispute
where no tacking was involved. Sometime in November,
however, at a time when Palladino had already left work,
Naglehout assigned the laying of a blanket or blankets to
the carpenters because tacking was involved. The following
morning when Palladino learned about the assignment he
protested to Naglehout who told him he knew the
procedures to follow if he thought the assignment was
wrong.
About the second week in December, Naglehout again
assigned the laying of blankets to the carpenters because
tacking was involved and Palladino instructed four
laborers to cease work until the carpenters had finished.
Naglehout estimated the laborers stood by for about one-
half hour.3
On February 10, Naglehout again assigned the job of
covering the concrete to the carpenters and Palladino again
protested, but to no avail. According to Palladino's own
testimony, despite Naglehout's assignment , when the
laborers brought out the blankets, instead of giving them to
the carpenters Palladino started to cover the concrete
himself. The carpenters started to take the blankets away
from him and he told them that it was his work and he was
going to do it. The carpenters told him no, that they had
been told to do it by Naglehout and they were going to do
it. When Palladino insisted upon doing the work, the
carpenters walked up the road and stood there while
Palladino, aided by two other laborers, covered the
concrete with the blanket and tacked the ends into the
sides of the form with strips of wood.
On February 14, Palladino was terminated. Although he
was then told it was because a reduction in force,
Respondent later admitted that he was in fact discharged,
assertedly for cause.
H. ANALYSIS AND CONCLUSIONS
According to General Counsel, Palladino was terminated
because he engaged in protected concerted activities,
namely, protesting violations of safety rules and breaches
of contract. According to Respondent, Palladino was
terminated because he engaged in unprotected activities,
namely, that he caused the work stoppage of the carpenters
on February 10.
At the outset, there can be no question that Palladino's
complaints respecting violations of safety rules and
breaches of contract constituted concerted activities.
Although some of Palladino's complaints affected him
alone (e.g. delivery of materials to the job without calling
him), they were based on the provisions of the contract and
may thereby be deemed concerted activity.4 But even if
Foreman Al Safran gave sketchy testimony tending to corroborate
Palladino, but I do not credit him either
4 N LR B v Interboro Contractors inc, 388 F 2d 495 (C A. 2, 1967)
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were some question about the concerted aspects of
those complaints affecting Palladino only,5 there could be
no question that his many complaints about safety
conditions were concerted activities as they were for the
safety of all the laborers and it was Palladino's responsibili-
ty as job steward to assure the maintenance of safe working
conditions for the laborers. Moreover, there can be no
dispute about the protected nature of the complaints made
by Palladino as described above. While they were
numerous and may have seemed picayune, there is no basis
for holding that they were made in bad faith or with an
intent to harass Respondent. The very fact that merit was
found in nearly every instance is an indication that the
complaints were made for legitimate Union purposes.
On the other hand, there can be no question that
Palladino engaged in unprotected activity on two occa-
sions in connection with the jurisdictional dispute with the
carpenters. On one occasion, as I have found, he caused
the laborers to cease work, and on another, he caused the
carpenters to cease work. There is testimony about
conversations between representatives of the Union and
Palladino with Jack Johnson, president of Respondent,
and Naglehout concerning the work assignment of the
laying of blankets which I have not set forth because it is
immaterial to a decision. The thrust of the testimony,
insofar as Palladino is concerned, is that Johnson agreed
that the disputed work belonged to the laborers and that
Naglehout acknowledged that fact. Be that as it may, on at
least the three occasions described above, Naglehout
assigned the work to the carpenters and on two of these
occasions Palladino caused a work stoppage. His conduct
in that regard was unprotected .6
It appears that Palladino engaged in unprotected activity
in addition to that involving the jurisdictional dispute.
Thus, on one occasion, he had a dispute with Naglehout
over the adequacy of planking on which the laborers would
have to walk in making a concrete pour and he delayed the
concrete pour while he and the labor foreman installed
additional planking.? While he had a legitimate interest in
protesting the adequacy of the planks, he had no right to
resort to self-help. On other occasions, he usurped
management functions by instructing laborers to work in
pairs in carrying planks or plywood. According to
Respondent, he also instructed laborers to refuse to use a
Cushman vehicle and this slowed down the work. Palladi-
no denied issuing any such instructions but I do not credit
him. Rather, I credit Naglehout's uncontradicted testimo-
ny that he spoke to Palladino about the Cushman vehicle
and Palladino told him it was the Teamsters jurisdiction.
In addition to this conduct which was c^ ..se for
discharge, Palladino was accused of several other acts of
misconduct by Johnson at a grievance meeting sometime
after Palladino's discharge.8 No useful purpose would be
served by enumerating all the charges against Palladino
and resolving his culpability or innocence. The short of the
5 N L R B v Northern Metals, 440 F 2d 881 (C A 3, 1971)
6 A Brochman & Sons Co, 174 NLRB 203; Stop & Shop Inc, 161 NLRB
75.
r Palladino denied delaying the concrete pour, but I do not credit him
Foreman Al Safran appeared to corroborate Palladino , but his testimony
was somewhat vague If he intended to deny there was a delay , I do not
credit him
matter is that Respondent had cause to discharge Palladi-
no. However, such a finding is only incidental to the issue
in the case, namely, Respondent's motive for discharging
him. "The issue before us is not, of course, whether or not
there existed grounds for discharge of these employees
apart from their union activities . The fact that the
employer had ample reason for discharging them is of no
moment. It was free to discharge them for any reason good
or bad, so long as it did not discharge them for their union
activity. And even though the discharges may have been
based upon other reasons as well, if the employer was
partly motivated by union activity, the discharges were
violative of the Act." N.L.R.B. v. Great Eastern Color
Lithographic Corp., 309 •F.2d 352, 355 (C.A. 2, 1962).
At the hearing, Johnson testified that the decision to
discharge Palladino was made on the Saturday morning
following the work stoppage caused by Palladino on
Thursday. The thrust of his testimony was that he
discharged Palladino because of that work stoppage and
not because of any protected activities Palladino may have
engaged in. Thus, when asked if it was not true that he
based his decision on more than one incident Johnson
replied, "My final decision was based on the fact that he
wasted time of all the employees with jurisdictional
disputes which he had no reason to do." As can be seen,
this reply suggests that the discharge was based only on
Palladino's unprotected activities, although it does not
contain such an express avowal. Understandably so,
because on two other occasions, Johnson expressed his
reasons for discharging Palladino and on both occasions he
did not restrict himself to the February 10 work stoppage.
As indicated earlier, Palladino filed a grievance over his
discharge. Part of the procedure in processing the griev-
ance involved a meeting between Union representatives,
Respondent, and representatives of other contractors.
According to the uncontradicted testimony of Palladino, at
this meeting Johnson undertook to give his reasons for
discharging Palladino and he enumerated about 25
reasons. Palladino recited 23 of those reasons at the
hearing. For example, Johnson accused Palladino of
tardiness and absenteeism , wasting time in making
telephone calls, taking too much time to perform work
assigned, delaying a concrete pour to add planks to
scaffolding, and instructing the men not to use the
Cushman vehicle and to work in pairs carrying 16 foot
planks and 4 by 8 pieces of plywood.
In addition, however, Johnson recited other incidents
among his reasons for discharging Palladino . For example
he referred to the fact that Palladino had "brought a lot of
heat on the job by calling the State inspector" . . .; that
Palladino had insisted on being paid 2 hours show-up time
when he had not in fact shown up on the job; that he had
insisted on double payment for a delivery of material to the
job (that is, 1/2 hour in wages to the laborer who made the
delivery and 1 /2 hour to Palladino who should have been
8 Palladino filed a grievance over his discharge which was eventually
processed through arbitration No party contends that the Board should
defer to the arbitration pursuant to the principle of Spielberg Mfg, Co, 112
NLRB 1080, inasmuch as the parties stipulated that the arbitrator did not
decide the issue of the reason for Palladino 's discharge , but rather decided
only whether procedural requirements of the contract had been met.
WASHINGTON S. JOHNSON BUILDING CO. 431
called to make the delivery); and that he had instructed the
laborers not to wear rain gear.
As pointed out earlier, Palladino's activities which
resulted in calling the State inspector were protected
concerted activities. His insistence on 2 hours show-up pay
and payment for 1/2 hour for work he did not perform
were also protected concerted activities as they were based
on provisions of the contract. His disputes over rain gear
and boots were also based on provisions of the contract
and in protesting Respondent's compliance with those
provisions it does not appear that Palladino protested in
such a manner as to render his conduct unprotected.
In short, when Johnson explained to the grievance
committee his reasons for discharging Palladino, he
included among his reasons both protected and unprotect-
ed activities. On his own statement, therefore, a finding is
warranted that in discharging Palladino Respondent was
motivated in part by Palladino's protected activities, and,
as indicated above, a discharge so motivated is violative of
the Act.
The detailed manner in which Johnson enumerated the
activities of Palladino on which he based his decision to
discharge him indicates that the protected activities played
a substantial part in that decision. Further proof of that
fact was given by Johnson on another occasion when, in
the investigation of the charge in the instant case, he gave a
sworn statement to the Board agent in which he stated "the
following are several instances which led to the decision to
discharge Mr. Palladino" and then elaborated the inci-
dents. The statement was not offered into evidence so that
the record does not include all the incidents relied upon by
Johnson, but Johnson admitted at the hearing that he had
listed Palladino's complaints about rain gea' and that he
had stated "It was reported to me that Mr. Palladino
personally called the State inspector on the job at least ten
times ..." His admission about these items alone as
incidents "which led to the decision to discharge Mr.
Palladino" give additional support to the finding that
Johnson was motivated in substantial part by Palladino's
protected activities in deciding to discharge him.
In arriving at the conclusion that Respondent was
motivated in substantial part by Palladino's protected
concerted activities in discharging him, I have considered
the evidence that on each occasion when Palladino
threatened to call the State inspector, Naglehout did
nothing to dissuade him. To the contrary, he indicated to
Palladino that was his prerogative. Such evidence militates
against a finding that Palladino's complaints to the State
inspector partly motivated his discharge. However, Na-
glehout was not as unconcerned about those co" plaints as
his behavior toward Palladino suggests. Thus, sometime
between Christmas and New Year, when Johnson was
preparing to take up with a union assistant business agent
the problems created by Palladino, he consulted with
Naglehout who included in his complaints about Palladino
that Palladino was making calls to the State inspector. It
would appear from this that Naglehout was not indifferent
to Palladino's calls. According to Palladino, Naglehout was
so opposed to Palladino's calls to the State inspector that in
mid-January he offered Palladino a steady job if he would
stop calling him. However, Naglehout denied this and I
credit him.
In the final analysis, it is not Naglehout 's attitude which
matters. It is Johnson's, because it is he who made the
decision to discharge Palladino. As set forth above, based
on Johnson 's statements at the grievance meeting and in
his prehearing affidavit, a finding is warranted that among
the reasons for discharging Palladino were Palladino's
protected concerted activities. Accordingly, I find that the
discharge was violative of Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I above,
occurring in connection with its operations described
therein , have a close , intimate and substantial relation to
trade, traffic and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
IV. THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As it appears that the Harrison Radiator job on which
Harry Palladino was employed was completed several
months after his discharge ,9 an order requiring Respondent
to offer him reinstatement would be inappropriate.
Instead , I shall recommend that Respondent make him
whole for any loss of pay he may have suffered as a result
of his unlawful discharge by payment to him of a sum of
money equal to that which he would have earned as wages
from the date of his unlawful discharge to the date the job
was completed or the date he would have been terminated
for reasons unrelated to his protected concerted activities,
less net earnings, to which shall be added interest at the
rate of 6 percent per annum in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 and Isis Plumbing & Heating Co., 138 NLRB 716. In
addition, I shall recommend that Respondent notify
Palladino, in writing , that notwithstanding his discharge,
he would be considered eligible for employment in the
future at any of Respondent's projects if he should choose
to apply for employment at any of them or be referred to
them by the Union. Respondent shall include in the letter
to Palladino copies of the notice which would have been
posted if the project had not been completed. Also,
Respondent shall mail copies of the notice to all its
employees employed at the Harrison Radiator jobsite on
February 14, 1973.10
CONCLUSIONS OF LAW
1. Walter S . Johnson Building Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
9 Naglehout testified the job ran for several months after the discharge
10 Cf Interboro Contractors Inc, supra at 1302
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The evidence adduced herein establishes that Harry
B. Palladino was discharged on February 14, 1973 in
substantial part because he engaged in protected concerted
activities and Respondent thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER"
Respondent, Walter S. Johnson Building Co., Inc., its
officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise interfenng with,
restraining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act because they have
engaged in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
(b) In any like or related manner interfering with,
restraining or coercing 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 Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make Harry R. Palladino whole for any loss of pay
he may have suffered by reason of his discharge and assure
him of his future eligibility for employment by Respondent
in the manner and to the extent set forth in the Section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports and all other records necessary
or useful to determine the amount of backpay due under
the terms of this Order.
(c) Sign and mail copies of the attached notice marked
"Appendix," 12 to Harry Palladino and to the employees
specified in the Section entitled "The Remedy."
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
ii In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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
12 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law when we
discharged Harry Palladino and the Board has ordered
us to mail this notice to you:
WE WILL NOT discharge employees because they
have engaged in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
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
Act.
In as much as the Harrison Radiator jobsite on
which Harry Palladino was employed has been com-
pleted we cannot offer him reinstatement to his former
job. WE WILL, however, assure Harry Palladino that he
is eligible for future employment by us and we will
make him whole for any loss of pay he may have
suffered by reason of his unlawful discharge.
WALTER S. JOHNSON
BUILDING CO., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Ninth
Floor-Federal Building- Ill W. Huron Street, Buffalo,
New York 10007, Telephone 716-842-3100.