Oneglia And Gervasini Construction Co.

ONEGLIA AND GERVASINI CONSTRUCTION CO. 579 Oneglia and Gervasini Construction Co. and Law- rence W. Lohneiss. Case 1-CA-10074 January 26, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 3, 1975, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief to the General Counsel's exceptions and brief, and also filed cross- exceptions to the Administrative Law Judge's Deci- sion together with a supporting brief. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. Oneglia and Gervasini Construction Co., discharged Loh- neiss legally for cause on July 23, or because of his attempt to carry out his duties as the labor steward of Local 611, Laborers' International Union of North America, AFL- CIO, by vigorously enforcing the collective-bargaining agreement then in effect between Respondent and the Union, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act, as amended. Upon the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a Connecticut corporation , is a general contractor engaged in the construction of roads, highways and bridges at various places in the State of Connecticut, where it annually purchases materials valued in excess of $50,000 directly from points located outside the State of Connecticut. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Local 611, Laborers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. I The General Counsel and Respondent have excepted to certain credibil- ity findings made by the Administrative Law Judge. It is the Board's estab- lished policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his find- ings DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: This case was heard at Hartford, Connecticut, on April 8, 9, and 22, 1975.1 The charge was filed by Lawrence W. Lohneiss on September 9, and the complaint was issued on Novem- ber 7. The issue in this case is whether the Respondent I All dates are 1974 unless otherwise stated III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 2 The Respondent, a member of the Connecticut Con- struction Industries Association, Inc., a multiemployer as- sociation of over 60 members, has been under contract with the Union for 15 to 20 years. In addition to employing laborers, the Respondent also employed cement masons, carpenters, operating engineers and teamsters, all of whom were members of their various trade unions. When the Re- spondent needed additional workers, it used the Union halls to secure employees skilled in the corresponding building trade. The representatives of the Respondent involved herein are General Superintendent Raymond R. Oneglia; Super- intendent Deiro Celadon; Foreman Richard Columbie; and Project Engineer William Salisbury. In July, the Respondent was in the latter stages of com- pleting a contract with the State of Connecticut that en- compassed construction work on 4,800 feet of Route 72. Already finished was the reconstruction and paving of an existing portion of Route 72, the relocation of a new por- tion of Route 72 and the construction of two bridges. The chief remaining work was the asphalt paving of 1,500 feet of highway, north of the merger point of existing Route 72 2 Unless otherwise indicated, findings herein are based on uncontradicted and credited testimony, or other evidence. Where material matter was con- troverted the facts are noted and the contradictions resolved. 222 NLRB No. 96 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and relocated Route 72. This road was to be enlarged to 48 feet wide. The uncompleted highway was located in a residential neighborhood, with homes, apartment houses, and stores abutting thereon, and ran north and south. It was intersect- ed by Westfield Street from the west, with the intersection having a traffic signal set on a yellow blinker at all times pertinent to this case. Some 200 feet north of Westfield Street, another street, Rose Circle, intersected the highway from the east, with traffic controlled by a stop sign. Both Westfield and Rose Circle dead-ended into Route 72.3 The Respondent's contract with the State provided in pertinent part that "the Contractor shall keep the roadway under construction open to traffic for the full length of the project and shall provide a sufficient number of travel lanes and pedestrian passways to move that traffic ordinar- ily using the roadway." In addition, the state contract re- quired the Respondent to provide trafficmen "at such loca- tion and for such periods as the Engineer may order for the control and direction of vehicular traffic and pedestrians." The State Construction Safety Code provided that "when- ever any work is being performed-on a highway where public vehicular traffic may cause danger to men at work-the traffic shall be especially controlled by persons authorized for that purpose-." In addition, applicable provisions of the Federal Occupational Safety and Health Act required that "When operations are such that signs, signals, and barricades do not provide the necessary pro- tection on or adjacent to a highway or street, flagmen or other appropriate traffic controls shall be provided," and that flagmen "shall wear a red or orange warning garment while flagging." The collective-bargaining agreement in effect between the Respondent and the Union for the period of April 1, 1973, through March 31, 1975, contains a section pertain- mg to stewards, which reads: Section 2: A steward shall be appointed or furnished by the representative of the Local Union who has ter- ritorial jurisdiction in the area where the job is locat- ed. The Steward shall be allowed a reasonable amount of time to carry out the provisions of this agreement and report any violations of same to the Local Union. The Steward shall remain on the job until completion of all the work covered by the terms of this Agree- ment, and shall work all overtime possible. The Em- ployer shall give the Local Union at least forty-eight (48) hours notice of its intention to lay off the Steward in all cases. It also contains a broad three-step grievance and arbitra- tion article covering "any difference of opinion or dis- pute-between the parties as to the interpretation or appli- cation of this Agreement-" In addition, it also provided that: "The Employer, the Union and the Employees shall abide by the Federal Williams-Steiger Occupational and 3 Resp. Exh 5, a not-to-scale sketch, but drawn by an engineer of the Company, shows the various roads, locations of buildings and contractors' equipment As witnesses testified about the events of the case, numbers were inserted on the sketch from 1 to 13, to identify the point on the sketch to which the witness was referring. Health Act and other applicable safety regulations of Con- necticut." Steward Lawrence Lohneiss Lohneiss, the Charging Party, was hired by the Respon- dent in October 1973 as a laborer. He had previously worked for the building construction division of the Re- spondent at a different jobsite. The Respondent made him a flagman because of his knowledge of traffic handling gained while he worked as a full-time policeman for Mid- dletown from 1952 to 1963. Prior to June, Lohneiss had served as a flagman on the southern portion of the project. At these points, his duties were to facilitate the exit and entrance of company trucks from side streets to the state highway, rather than regulat- ing the flow of traffic on the highway itself. When not performing a flagman's duties, Lohneiss did the regular work of a laborer. At the start of the job, the Union had designated Lob- neiss as the laborer's steward. Lohneiss described his duties as checking laborers' books, making sure that the agree- ment is lived up to by both parties, investigating com- plaints and bringing them to the attention of the superin- tendent or foreman, and if no satisfaction then to his business agent. During his 9-month period as the laborers' steward, Loh- neiss could recall only two specific grievances that he had been involved in, but stated that there had been several other ones that he could not recall. The two specific griev- ances had been handled right on the spot, and settled to Lohneiss' satisfaction. He also testified that there were no problems during his 9 months on the job that could not be settled peacefully with the Company, and that during the same period of time the Company had not interfered with his right to perform his union duties. The meeting on July 19 On Thursday, July 18, Lohneiss, as he had done in past weeks, went into town, and cashed the paychecks of his fellow laborers. Upon returning to the job, he found that Robert St. Paul, a laborer, was not present to receive his pay. The steward turned St. Paul's money over to Project Engineer Salisbury in the company trailer, who put the money in his unlocked desk drawer. The trailer was broken into that night, and St. Paul's wages were stolen. The next day, July 19, Oneglia learning for the first time of Lohneiss' check cashing activities and of the trailer break-in, called for a meeting that afternoon. In the early afternoon, St. Paul had gone to Lohneiss and stated that he had not been paid. The steward then went to Celadon and asked him what he was going to do about the check, and Celadon told him that he would take care of it. At 3:30 p.m. St. Paul received a check for his wages. At 4:10 p.m., Lohneiss, St. Paul, Salisbury, Celadon, and Oneglia met in the company trailer. While the meeting took less than 10 minutes, the parties are in dispute as to what was said. Oneglia testified that at the meeting he learned that Loheniss "had been leaving the job for some ONEGLIA AND GERVASINI CONSTRUCTION CO. 581 weeks without letting anyone know he was going" to cash checks at the town bank. Oneglia told Lohneiss that the check cashing had to stop, and that "he was not to leave his post again without letting someone in charge know about it," and "not to leave his post without permission from his supervisor." Oneglia contended that the two state- ments meant the same thing. According to Salisbury, Oneglia said that there would be no more check cashing at all and "that no one was to leave their post without permission from their supervisor," that upon hearing this Lohneiss asserted that he could cash checks, and that he had time to conduct union business, with the steward thereupon calling his union agent, but failing to reach him. On cross-examination when asked if Oneglia made any response to Lohneiss remark about time to conduct union business, Salisbury stated that he could not recall the exact words, but that "the gist of the conver- sation was that he wasn't to leave the post without permis- sion or letting someone know" "letting his foreman or su- pervisor know .... . Celadon testified that Oneglia stated "that from now on there could be no more check cashing during company hours and no one was to leave the job without notifying somebody in authority." When asked on cross-examina- tion if Oneglia mentioned anything about getting permis- sion, he said that word was not used. The superintendent further testified that Oneglia stated that nobody was to leave his job "for any reason whatsoever," but that union business was not mentioned in this context. Lohneiss' version was that Oneglia stated "that I was not to leave the job to go out and cash any checks while I was on his job." When Lohneiss replied that "he had cashed them on the other job," Onegha told him that this was his job, that they were working under a heavy and highway agreement not under the building agreement which permit- ted the steward to cash checks. Lohneiss testified that he said, ". . . fine, I won't go cash checks. I said whatever you want." The steward admitted that he agreed not to leave his job, but when asked what that meant to him, he stated that the job means the "site the job is situated on ....' St. Paul remembered very little about the meeting, and the only thing he remembered clearly was that Oneglia said "that if Lohneiss wanted to cash checks he would do it on his own time." When shown his prehearing affidavit which contained the statement, "Also, Raymond told Celadon that Larry (Lohneiss) was not to leave the job anymore," he admitted that Oneglia might have told this to the super- intendent. Thus, we have three different versions of just what re- strictions were stated by the general superintendent in that trailer. Lohneiss' version is that he was just told not to leave the job to go out and cash checks. St, Paul gave very weak corroboration to Lohneiss, which was contradicted by his affidavit. Oneglia's version was that no one was to leave his post without letting someone in charge know about it, or without permission from his supervisor. Salis- bury echoed Oneglia's second version that no. one was to 4 1 do not credit Salisbury's version as it appeared he was gilding the lily by combining the strongest points of Onegha's two versions leave his post without the permission of his superinten- dent.4 Celadon impressed me as a very fair, completely candid and objective witness. I credit Celadon's version that Oneg- lia said no one was to leave the job without notifying some- body in authority, for any reason whatsoever. The Events of July 23 On July 23, Lohneiss arrived on the construction site at or about 7:20 a.m. He observed two laborers already work- ing, pushing water away from manholes, although starting time was not until 8 a.m. Lohneiss went to Oneglia and asked how come he was not notified of the early starting time, asserting that as the steward he was entitled to the overtime. Lohneiss testified that Oneglia stated that he did not have to notify him, and that he would get no overtime. Oneglia's version was that he told Lohneiss that he had had an emergency (it had rained the night before leaving water on part of the roadway), that the laborers were there wait- ing for the regular start and he used them; that Lohneiss had no claim for overtime until he received his check, and if he was not satisfied, the contract had an arbitration pro- cedure that could be followed. Lohneiss was dissatisfied with that answer and tele- phoned his union agent, Edward J. Majewski, explained to him what happened, and Majewski said he would be down as soon as he could. At 8 a.m. Lohneiss started his normal day as a flagman. Oneglra had arrived on the job at 6:30 a.m. to make ready for a major paving operation on 1,000 feet of the 1,500 feet of Route 72 that remained to be completed, Al- though the roadway was to be 48 feet wide, paving was done on the basis of 12 foot widths, starting from"the east edge of the road. The adjoining 12 feet was used exclusive- ly for company trucks and employees, with the remaining 24 feet used by public vehicular traffic. The paving was to proceed in a northerly direction, with the operation requir- ing a paving machine, two rollers and four or five men with rakes. To keep the paving machine continuously working, 13 or 14 company trucks hauled asphalt from a plant 5 miles away. The loaded trucks would drive easterly on Westfield Street to its intersection with Route 72, turn right into the regular traffic pattern, drive south to an open' area, turn around to face north, then maneuver to get in front of the slow moving paver, and dump its 25 tons, of asphalt into the paver. Having delivered its load, each truck would pull out parallel with the paver in the adjoining lane, clean and put its body down,,go north to Westfield Street, make a left turn and return to the plant for another load of blacktop. There were about 65 employees working for the Respondent on the jobsite, 7 of whom were laborers. The 455 feet of roadway north of Westfield Street was not ready for paving. Just south of Rose Circle, which was about 200 feet north of Westfield Street, a dynahoe of the Respondent was putting gravel into a trench area on the east side of the road. The dynahoe was a long,-ungainly piece of construction equipment, 30 feet long, with a buck- et in the front, and a backhoe in the rear, with four outrig- gers on either side, that hydraulically go down to stabilize 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the machine when operating. The dynahoe would dig into a pile of gravel stockpiled along the road, back across three traffic lanes, go forward to dump the gravel, back out into the highway again, and repeat the process. There was also a bulldozer and paver assigned to the same area to grade the area filled in by the dynahoe. The bulldozer was also about 30 feet long, and moved back and forth across traffic lanes when grading. Lohneiss was stationed as the flagman at the northern end of the job, above Rose Circle. At the intersection of Westfield Street and Route 72, there was a Middletown policeman acting as flagman, directing the busy intersec- tion traffic. There was a third Middletown policeman serv- ing as a flagman at the south end of the job, who worked closely with the moving paving machine and its crew. The Middletown policemen who served as flagmen were paid by the Respondent. Lohneiss described his duties that morning as follows: On my particular job on the north end, I had one-way traffic which I in turn had to coordinate with the offi- cer and work out some kind of signal because the area is approximately 400 feet where I would let one lane of traffic go and then stop them and then let the other lane of traffic go. We would only have one lane of traffic due to the fact that on the east side of the high- way near the home of the elderly, a dynahoe was working back filling the trench. The policeman stationed at the intersection of Westfield Street and Route 72 had a much more complicated traffic control problem then Lohneiss. Not only did he have the problem of directing north and south bound traffic on Route 72, and coordinating traffic on Route 72 from his intersection to Lohneiss' northern end in one-way or two- way direction, but also he had to control the cars and trucks that came out of Westfield Street, or that turned into Westfield. He also had to coordinate the traffic between Westfield Street and the southern end of construction, with the policeman directing traffic in that area. Celadon testi- fied that on July 23 traffic was "the normal traffic on Route 72, light, heavy." He also stated that in a paving operation "traffic is always a problem." Laborers Foreman Columbie was in charge of the dyna- hoe operation at Rose Circle and worked there all morn- ing. Lohneiss was in Columbie's labor gang. Lohneiss testified on direct examination that at or about 9:30 a.m. there was a coffeebreak, work stopped, when Pel- lici, another laborer, came to him and told him that there were two cement finishers under the bridge mixing their own grout (thin mortar). Lohneiss believed such work to be laborer's work under the contract. Lohneiss thereupon called his business agent a second time, told him about the cement finishers and again Majewski said he would be down as soon as he could. On cross-examination Lohneiss admitted that neither of his two prehearing affidavits men- tioned his calling Majewski during a coffeebreak, and the steward finally admitted that he left his post during work- ing hours, and without notifying anyone or getting anyone to relieve him.5 When asked why it was necessary to call his agent a second time, Lohneiss said, "In the morning, I was not notified of the early starting time. Number 2, if Mr. Oneglia wanted to lay it on me, I was going to lay it on him." Majewski arrived at or about 10:45 a.m. and pulled in-on the parking lot at Lineberry's store, adjacent to Westfield Street. Lohneiss testified that he then walked out to the police officer directing traffic at the Westfield Street and Route 72 intersection, told him he had to go to a bridge abutment, and "I would be back in 5 or 10 minutes or whatever and there was no problem on my end of the job because there was two-way traffic," to which the officer replied "I will see you." The steward did not know the officer's name as he had "ten or fifteen guys that week." Lohneiss and Majewski drove away from Route 72 and the construction work thereon proceeding west on West- field Street, then south on Fisher Road, finally arriving at the bridge site about three-quarters of a mile away. Loh- neiss stated that he took the longer Fisher road route, in- stead of going directly on Route 72, because "there was a congested area where the paving operations was taking place-." According to Lohneiss the dynahoe had stopped operating at 10:20 a.m. He described the area "as a very critical area" when the dynahoe was working on the high- way, backing in and out of-traffic, filling the ditch. There- after, he stated, there was two-way traffic from his north end of the job to Westfield Street. However, he did admit that the bulldozer was grading off the side of the road, near Rose Circle, but stated it was not interfering with traffic. Lohneiss on direct examination testified that, when they arrived at the bridge, "-we see 2 cement finishers mixing the grout-," and one of them, Rafael Marco, admitted he was doing so, and admitted that they did not have a labor- er to tend them. Majewski presented a different setting. He testified that when he and Lohneiss arrived at the bridge, the two cement masons were not working on the ground, but were working on a swinging scaffold, 20 feet long .6 They then got in Majewski's car, drove northerly up Route 72, passed alongside the paving machine, where Oneglia and Celadon were working, and pulled again into Lineberry's parking lot. Celadon testified that when Oneglia saw Lohneiss drive past them, Oneglia told him to find out if Lohneiss had secured permission from anybody for leaving his post, and if he had not to fire him. Celadon walked over to the Line- berry parking lot where Lohneiss and Majewski were sit- ting in the agent's car, and asked Lohneiss if he had se- cured permission from anyone to leave; upon Lohneiss replying "No," Celadon told him that he had to let him go, "for leaving without letting anyone know about it." Ac- cording to Majewski, Celadon said he did not know why Oneglia was firing Lohneiss. However, on cross-examina- tion, when shown his prehearing affidavit which stated that Celadon said Lohneiss was "fired for leaving his post," he s Lohneiss was an evasive, unconvincing witness His testimony was con- tradictory, and several times at odds with his prehearing affidavits, and his explanations of the differences were unconvincing Marco was called as the final witness in the case by the Respondent He was an elderly cement mason, who spoke very broken, sometimes indeci- pherable English He had worked on the bridge for 2 months, but otherwise his answers were so vague and unresponsive to specific questions that I have given no weight to his testimony - ONEGLIA AND GERVASINI CONSTRUCTION CO. 583 stated "If it says so in the affidavit, I imagine that is what it is." Majewski and Lohneiss then drove out of the parking lot, proceeded south on Route 72, and parked in a private driveway directly across from the paving operation. They walked overto'Oneglia, and Majewski asked the reason for firing his steward, and Oneglia replied "for leaving his post." Both Majewski and Lohneiss testified that Majewski told Oneglia that they had observed a contract violation where two finishers were working without a laborer-to mix their materials, and that Lohneiss was doing his job as a steward. Oneglia continued to oversee the paving opera- tion, and to all remarks by the. umon agent, told him to take the grievance to arbitration. Lohneiss and Majewski then left the area. Another flagman, Pellici, was assigned immediately to Lohneiss' former post.- , Approximately 1 week later, the business agent of the Union came into Respondent's trailer and introduced the man with him to Oneglia as the Company's new steward. Oneglia told the agent that they were not hiring anyone. Following this conversation there were no laborers on the job for the next 4 days. On August 8, the Union and the Company agreed that St. Paul,_ a laborer already working on the job, would serve as the Laborers steward. Lohneiss testified that he had not filed a grievance claiming the overtime pay for the morning of July 23, nor had he pressed any claim against the Respondent for the cement masons working without a laborer to mix their mortar. Majewski agreed that the Union had not pressed any such claims. B. Analysis and Conclusions According to General Counsel, Lohneiss was terminated because he engaged in protected concerted activities; namely, the vigorous manner in which he performed his duties as shop steward and his attempts to enforce the col- lective-bargaining agreement. According to Respondent, Lohneiss was terminated because he engaged in unprotect- ed activities; namely, that he left his post as a flagman without notifying management. As an initial premise, it is apparent that Respondent had had a long and stable rela- tionship with the Union for many years, an indication of lack of union animus. Alton Box'Board Company Container Division, 155 NLRB 1025 (1965). The collective-bargaining agreement between the parties contains union shop and binding arbitration clauses. The Respondent has operated as a union employer in the construction industry, employ- ing not only union laborers, but also union carpenters, ce- ment masons, operating engineers, and truckdrivers, and had used the various union halls to secure additional em- ployees. The Respondent dealt with the stewards of the various crafts, and the record is silent as to any hostility or problems between the Company and any of the Unions with which it was in agreement. In the first 9 months Lohneiss worked on the job, he clearly had, not been an overly aggressive steward who filed an excessive number of grievances. For the months prior to July 19, Lohneiss could only recall two specific grievances, and vaguely thought that there were several more. The two grievances he could recall had been of a minor nature, and the Respondent had settled both of them to his satisfaction right on the spot. General Counsel contends in his brief that starting with July 19 Lohneiss had four "confrontations" or grievances with the Respondent.7 The first of these was Lohneiss' claim on July 19 of a right to go off the jobsite and cash the paychecks of his fellow laborers. When Oneglia pointed out to Lohneiss that the heavy and highway agreement covering the Route 72 project did not contain a clause al- lowing stewards to leave the job to cash checks, unlike the building construction agreement, Lohneiss agreed that he was wrong and said, ". . . fine, I won't go cash checks. I said whatever you want." This 10-minute trailer meeting might be called a confrontation, but it was certainly not the presentation of a grievance in the ordinary course of indus- trial relations. In any event, it ended peacefully, with the steward agreeing that he was wrong, and that he would not leave the job. The second confrontation did constitute a grievance sub- mitted by the steward. When Lohneiss arrived on the job at 7:20 a.m. on July 23 and saw that two laborers were al- ready working, he made his position clear to Oneglia that it was his claim that under the contract he should have been notified of the early starting time, and that as the steward he was entitled to the overtime, because it was his position that "a steward on any construction job has first preference on all overtime on the job." Actually, the bargaining agree- ment was silent as to notifying a steward of any early start- ing time, and as to overtime briefly read, "The steward- shall work all overtime possible." Since it was not possible for the Respondent to know that it was going to rain the night of July 22, and that the rain was going to leave pud- dles of water around manholes in the dawn hours of July 23, there was no way for the contractor to have notified Lohneiss ahead of time to start work at 7 a.m. Lohneiss' interpretation of the contract clause on overtime would re- quire the deletion of the word "possible,"' so that the clause would read, "The steward-shall work all overtime." Al- though Lohneiss' protest was without merit, he was en- gaged in protected, union activity when he made this early morning claim. Lohneiss was obviously seething with anger after the curt, brusque denial of his claim for overtime by the young general superintendent, and he proceeded to telephone his union agent to come down to the job. Later, after receiving a report from Pellici about cement masons mixing their own grout, he telephoned his agent again and entreated him to come down. Respondent in his brief argues strenously that there was no grievance involving cement masons mixing grout under the bridge, because this alleged incident simply never hap- pened. It is true that Pellici was not called to testify (nor was his absence explained), and Marco's testimony proves nothing. Lohneiss' testimony on direct examination that he 7 General Counsel did not specifically identify each confrontation with a number, and I can only match up the following- (1) Lohneiss' claim of his right to leave the Jobsite and cash checks; and (2) Lohneiss' claim of a right to be notified of overtime work and his claim for overtime pay on July 23 Lohneiss' claim that masons were doing laborers' work was presented to Oneglia by Majewski, after the steward had been fired 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saw two cement finishers mixing the grout, only to flatly contradict this on cross-examination by stating that the only thing he saw was two men putting grout on the wall, coupled with other contradictions and inconsistencies made during the courses of Lohneiss' testimony, makes his testimony on the bridge incident unworthy of belief. While it is true that Majewski testified defensively to protect his steward, I credit Majewski's testimony that he and Lohneiss went to the bridge to investigate a grievance. I also credit Majewski's testimony that the two cement ma- sons were not working on the ground mixing grout, but were in fact working on the bridge wall, in the air, on a swinging scaffold. Majewski was a veteran, knowledgeable union official who understood what work was going on, and he knew the difference between stone rubbing and finishing, whereas Lohneiss did not. I also draw the infer- ence that Majewski determined that the work being done by,Marco and the other finisher was not a violation of the laborers' contract, and that he so informed his steward. I draw this inference because of Lohneiss' conduct following his visit to the bridge. Lohneiss had Majewski drive back north, straight up Route 72, past the paving operations, past Oneglia and Ce- ladon, and park on Lineberry's lot. When sharply cross- examined as to why he had not stopped to discuss the grievance with Oneglia, he stated firmly, "I wanted to get back to my post." The steward wanted to get back to his post as a flagman because his union agent had informed him that what the masons were doing was not a violation of the laborers' contract. The record clearly indicates that there was a place adja- cent to the paving operation for Majewski to park safely, had he cared to do so. After Celadon had his very brief discussion with Lohneiss and Majewski on Lineberry's parking lot, Majewski testified, "So we proceeded down Route 72 again, we parked in a private driveway there and directly across they were laying down the blacktop." If Majewski had thought that the masons under the bridge were doing work that violated the laborers' contract, he could simply have parked in the same private driveway going north, as he parked in, going south. Whether Lohneiss was investigating a meritorious griev- ance or an unmeritorious grievance is not critical to this case. I find that he was investigating a grievance, which in normal circumstances is protected activity on the part of a steward. However, the rule is not absolute and must meet the rule of common sense. Majewski, when asked "if-the general practice is that the steward can move around any time he chooses," answered, "Well, everything is restricted to a certain degree and everything is allowed to a certain degree," and finally admitted that a steward cannot move around on a job anywhere, any time he pleases. During the course of his testimony, Lohneiss referred to the place at which he conducted his flagman's duties as his station, sometimes his position, but chiefly he referred to it as his post. While Oneglia did not lay down a precise direc- tive on July 19 that no one was to leave his "post" without notifying somebody in authority, the record is clear that Lohneiss understood that there were company restrictions on his leaving unattended his flagman's post, station, or position. Lohneiss saw fit to try and justify leaving his post to call Majewski the second time, as taking place during the cof- feebreak, not working time.8 He justified his leaving his post with Majewski, because he claimed that the dynahoe had stopped operating at 10:20 a.m., traffic was two-way, and therefore, "the traffic was not critical." He also tried to buttress his justification for leaving by testifying that be- fore he left he went out and told the policeman at the Westfield Street, Route 72 intersection that he was leaving, but there was no problem on his end of the job. There was no way that Lohneiss could foretell that there would not be tremendous traffic congestion on his end of the job while he was gone. He admitted that the bulldozer was grading along the road, and had it backed across the road, its 30- foot length would have immediately reduced that portion of Route 72 to a single traffic lane. He did not talk to labor foreman Columbie to find out if the dynahoe was going to start up again, and thereby block off three lanes once more. The regular vehicular traffic upon approaching this road construction job from the north could have become much heavier, thereby congesting the entire area in a mat- ter of several minutes. The 400 to 500 feet of Route 72 from the northern end to Westfield Street was a bottleneck for the motoring public at best, and it was imperative to have a flagman at that position. Lohneiss knew this, but his anger at Oiieglia over the hour of overtime he claimed caused him to leave this important post and go try to find a violation of the con- tract so that he could "lay it on him." Lohneiss had a clear legal right to engage in protected activities to carry out his duties as the laborers' steward. In addition, the collective-bargaining agreement specifically provided that the steward shall be allowed a reasonable amount of time to carry out the provisions of the agree- ment. Lohneiss himself admitted that the Company at no time had interfered with his right to perform union duties. However, the Respondent had a legitimate business in- terest in seeing to it that Lohneiss, the flagman, did not leave his post unattended that morning. The Company's contract with the State of Connecticut required it to keep the road open so as to move the traffic ordinarily using the roadway. The same contract, as well as the State's Safety Construction Code, required the Company to provide traf- ficmen, and the Occupational Safety and Health Act re- quired the Company to provide flagmen. There was no way that the policeman directing traffic at the very busy inter- section of Westfield Street and Route 72'could control the traffic at Lohneiss' post, 400 to 500 feet away. Fortunately, there was no massive traffic jam during the 15 minutes of Lohneiss' absence, but this was just a fortuitous happening, as there could equally have been a complete traffic tieup. Also, the lives of citizens traveling the road could have been endangered by the bulldozer, as well as the dynahoe backing across the road, without a flagman on the north end to hold them up, as they drove south on Route 72. Lohneiss admitted that when he left his post there' was a congested area on Route 72, below Westfield. With the number of automobiles traveling that highway, a congested 8 Cross-examination disclosed that it had taken place during working time, not coffeebreak time ONEGLIA AND GERVASINI CONSTRUCTION CO. 585 area could have developed in seconds on the area north of Westfield Street. In the final analysis, here, as in other areas of labor- management relations , the "ultimate problem is the ba- lancing of the conflicting legitimate interests ," N.L.R.B. v. Truck Drivers' Local Union No. 449, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F. of L. [Buffalo Linen Supply Co.], 353 U.S. 87, 96 (1957). Lohneiss had a basic right to engage in pro- tected activity and to carry out the duties of a steward, but not an absolute right under all circumstances and without any restrictions whatsoever . The Respondent had a legiti- mate business interest in seeing to it that a flagman was at all times, while work was being performed on Route 72, at his post in the northern end of the construction project so as to protect travelers, employees and to allow the paving operation to meet federal, state and contractual require- ments. It is doubtful that any University's Division of Industrial Relations would approve of the general superintendent or- dering Lohneiss to be fired without making a thorough in- vestigation of the facts and without giving the steward a chance to explain his side of the story . However, those considerations do not play a part in evaluating the facts of this case with the corresponding statutory requirements of the Act. The evidence is clear that the Respondent had no knowledge that Lohneiss was investigating a grievance, and that Oneglia ordered his discharge for one reason only, and that was because Lohneiss left his post without letting someone in charge know about it. I find on the entire record that Lohneiss was discharged for cause, unrelated to any pressing of grievances or any other concerted or union activity . More specifically, I find that he was discharged for neglecting his work as an em- ployee of the Respondent. J.' B. Guldri, Sr., J. B. Guldri, Jr., et al, Partners d/b/a/ Northside Electric Company, 151 NLRB 34 (1965), affirmed sub nom. Charles Poindexter v. N.L.R.B., 353 F.2d 524 (C.A. 4, 1965), cert. denied 385 U.S. 857 (1966). The Respondent had a legal right to restrict the activities being performed on behalf of the Union during working hours by the steward Lohneiss, unless such restrictions were illegally motivated. The Respondent clearly had no such motive. Nor can it be said that Lohneiss as an individ- ual employee was engaged in activities protected by Sec- tion 7 of the Act. Calmos Combining Co., 184 NLRB 914 (1970); Erie Strayer Company, 213 NLRB 344 (1974). It is my conclusion that the allegations of the complaint are not supported by a preponderance of the evidence and that the complaint must be dismissed. CONCLUSIONS OF LAW 1. Respondent is subject to thejurisdiction of the Board. 2. The Union is a labor organization within the meaning of the Act. 3. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent violated Section 8(a)(l) and (3) of the Act as alleged in the complaint. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDERS IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. 9In the event no exceptions are filed as provided by Sec 10246 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.