Union Electric Co.

UNION ELECTRIC CO. Union Electric Company and Local Union No. 148, International Union of Operating Engineers. Case 14-CA-17046 9 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS - HUNTER AND DENNIS ' - On 19 October 1984 Administrative Law, Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in-answer to the Respondent's exceptions and a motion' to cor- rect the judge's recommended Order. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, t and conclusions and to adopt the recommended Order as modifted.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Union Electric Company, St..Louis, Mis- souri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(a). "(a) Make whole Anthony Caldwell, Dacia Nash, and Larry Starks for any loss of wages or other benefits they may have suffered as a result of their suspensions on 4 and 5 May 1983, with inter- est, and remove from their personnel record any reference to their having been disciplined for fail- ure to perform a job assignment on these dates." I In agreeing with his colleagues' determination to affirm the judge's finding that employees Caldwell, Nash, and Starks believed reasonably and in good faith that the McKinley Bridge access to caisson no I was unsafe, Member Hunter- notes the lack of supporting evidence In the record for the judge's conclusion that the bndge'is part of the U S high- way system and has a posted speed limit of 55 miles per hour However, in view of the fact that the record supports a finding that vehicles pass over the budge at speeds between 30 and 50 miles per hour, Member Hunter finds the judge's error insufficient to affect the results of the case In addition, in adopting the judge's fmding that the employees' fears of the McKinley Bridge access were-reasonable notwithstanding the precau- tions instituted by the Respondent as a result of the 6 April 1983 meeting between its representatives and- employee-union steward Holloway, Member Hunter notes that the record does not contain sufficient evi- dence to find that the Union agreed to a waiver of the employees' con- tractual right to assert that the McKinley Bridge access to caisson no 1 was unsafe - 2 The General Counsel has moved to conform the judge's recommend- ed Order to-his findings. The motion is granted DECISION 389 STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at St. Louis, Missouri, on August 23, 1984; on the General Counsel's complaint' al- leging that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by suspending employees on May 4 and 5, 1983, because they had engaged in pro- tected concerted activity-refusing, pursuant to a right under a collective-bargaining agreement, to perform a job assignment on grounds of safety. The Respondent denies that it committed the unfair labor practice alleged and contends that the employees' refusal to perform the job assignment was unprotected because it was not based on a good-faith belief the job was unsafe. - On the record as a whole, including my observation of the witnesses, the briefs and arguments of counsel,.I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a Missouri corporation engaged in the production and distribution of electrical power at several plants in the St. Louis area including the facility involved in this matter located at Venice, Illinois. In the course of its business, the Respondent annually derives gross revenues in excess of $250,000 and annually re- ceives directly from outside the State of Missouri goods and materials valued in excess of $50,000. The Respond- ent admits, and I find, that at all times material it has been an employer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 148, International Union of Operat- ing Engineers (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The material facts are undisputed and may be summa- rized: For many years the Union has represented a pro- duction and maintenance unit' of employees at the Re- spondent's various facilities, including the one at Venice. The parties have negotiated successive collective-bar- gaining agreements . The one in effect during the time material here tan from April 24, 1981, until June 1, 1983. The Venice plant is about 40 years old and is now used in an auxiliary capacity during times of peak electri- cal usage (winter and summer). One company witness testified that the plant had been in operation about 17 days the preceding year,. an estimate which was not dis- puted by other witnesses. Nevertheless, the plant is I The Charge was filed on October 7, 1983, and the complaint issued on June 18, 1984 - 275 NLRB No. 59 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manned on a continual basis with a staff whose duties are primarily to inspect and maintain the generating equip- ment. Near the plant are two caissons which are large struc- tures containing the necessary equipment to pump water from the Mississippi River to the generating plant in times of operation. Since some time in 1982, when the plant is not in operation there is no one assigned specifi- cally to the caissons; still the Company has determined that these structures should be inspected each shift speci- ficaly to see that the sump pumps are, operative. The job of inspecting the caissons is-now assigned by the station supervisor to an assistant first auxiliary operator. Caisson No. 1 is located about 60 yards from the plant. To inspect this caisson normally one need only to walk the 60 yards of open space, climb stairs to the door of the caisson, and 'go in. However, during those times when the Mississippi River is high, the caisson is com- pletely surrounded by water thus foreclosing ground- level entrance. On those occasions, to reach Caisson No. 1 one must use stairs which are attached at the top of the McKinley Bridge and at the bottom to the caisson en- trance which is about 20-30 feet above ground level.'- The McKinley Bridge is a major structure over the Mis- sissippi River and is part of the U.S. highway system. Undisputably, the speed limit on the bridge is 55 miles per hour. It has four lanes for traffic but no shoulder or other place for a vehicle to park other than in- a traffic lane. The stairs between the bridge and the caisson are simi- lar in construction, length, and pitch to those in the cais-_ son itself and the plant. A drawing submitted by the Re- spondent shows that the stairway is in two sections each with a 17-foot vertical drop and a 24-foot diagonal. Be- tween the two sections is a 30-inch landing and at the landing is a gate with a lock on the caisson side. The Re- spondent's evidence indicates that the-top of the stairs at the bridge is about 93 feet above the ground, or some- thing less from the" water depending on how high-the river might be at the particular time when the stairway is being used Although the stairs have a handrail 3 feet high on each side they are otherwise not enclosed. Final- ly, the parties agree that the stairs shake when traffic, es- pecially large trucks, pass over the bridge. - As noted, one of the principal purposes of inspecting the caisson is to ensure that the sump pumps are work- ing, which is.a matter of increased importance when the river surrounds the caisson. Thus, duriiig particularly critical times, in order to inspect the caisson the basic means of ingress is unavailable and the bridge stairs must be used. • While the bridge stairs have been used for about 30 years, apparently without incident, there was a safety claim involving this means of entrance to the caisson having to do with parking on the bridge. About April 6, 1983, Willie Holloway was asked to in- spect Caisson No 1 He told- his supervisor that he did not want to use the stairs: because the previous Decem ber he had been taken to the stairs in a company truck, the driver of which made a U turn in the middle of the McKinley Bridge and they were almost hit. Thus Holloway stated that he would be willing to put on hip- boots and walk out to the caisson which, apparently over the protest of supervisor, he did. The next day he was again requested to inspect the caisson but this time was not allowed to walk because the river had risen making this method even more dangerous. Holloway then told his supervisor that he was declining to do the job be- cause he felt that using the McKinley. Bridge stairs was unsafe. The following day Holloway met with the plant super- intendent as well as the chief steward concerning his claim that the stairs were unsafe. He was asked what corrections he thought would be necessary in order to make this manner of access safer. Holloway suggested at- taching rails at the top of the stairs so when one climbed- over the bridge railing to get onto the stairs he would have something to hold on to. He also suggested the Company should put some kind of a safety light on the truck which let off the person who was to use the stairs. Both of these suggestions were adopted by the Compa- ny. On May 4 Anthony Caldwell was asked by Station Su- pervisor Larry Utnage to inspect the caisson. Caldwell refused telling Utnage: . .. because of the bridge and the truck and the traffic which were not-you know, no one's sup- posed to be allowed or cars supposed to stop on the Bridge and then climbing on the Bridge itself and then there was nothing to catch you if you lost bal- ance or anything when you fell-if you fell because of the Bridge-the steps going to the caisson would shake severely. Caldwell was not threatened with discharge for this refusal. On leaving Utnage's office, he talked to two fellow employees, Dacia Nash and Larry Starks. He told them they would be also asked if they would inspect the caisson using the McKinley Bridge stairs and that he had refused to do so because he felt the use of the stairway was unsafe. - Nash and Starks were then called into Utnage's office, asked whether they would inspect the caisson using the McKinley Bridge stairs, and they said they would not. They were sent home, but the next day Nash indicated that she would use the bridge stairs if somebody went with her. Starks did so. In the meantime, Caldwell was advised by his steward that he would be canvassed again and, if he again re- fused, he would-be suspended. And on May 5, at a meet- ing with company' officials; and the union steward, the three, employees were asked by Plant Manager Robert Schuman -why they thought the stairs were unsafe. They explained their- reasons. However, company representa- tives said the stairs were_ perfectly safe, particularly inas- much as they had put a handrail at the top of the stairs and provided the truck with a flashing light. Schuman then stated that each employee would again be asked and would be suspended on refusal. Caldwell was first asked, and he said that he would not use the McKinley Bridge stairs to inspect the caisson and was told that he was indefinitely suspended: As indi- UNION ELECTRIC CO. cated, Nash and Starks did reluctantly agree to use the stairs and were not suspended on May 5. B. The Issue The issue in this matter is whether or not when--the Company suspended-Anthony Caldwell on May 5, as well as Dacia Nash and Larry Starks on May 4, for re- fusing to go to an assigned job by means which they considered unsafe (using the McKinley. Bridge stairs) they were engaged in concerted activity protected by the Act.2 • - C. Analysis and Concluding Findings The parties agree there are two clauses in supplement to the collective-bargaining agreement material to tliis matter: • 4. An employee's refusal to follow an order to do a job assigned (where the question of safety is not involved) shall subject such employee to the dis-, charge, suspension and disciplinary provisions' of Article 2 of the Labor Agreement, and the action` taken under such provision shall be subject to appli ' cable grievance provisions of the Labor Agreement. 5. If a position is taken that an assignment in- volved safety,-or if all available bargaining unit em- ployees who would ordinarily perform the work re- fused to do so in the manner directed by the Com- pany on grounds of safety, the Company may have the work performed by supervisory employees or outside contractors. • Though the collective-bargaining 'agreement supple- mented by this is somewhat ambiguous, the parties stipu- lated to certain 'findings and conclusions of Judge Marion C. Ladwig in a prior case involving these agreements. In conclusion he stated, ' "Employees with- a good-faith belief that the job is unsafe have the right to refuse to perform the work."3 • The first question, which is not really in dispute here, concerns the concerted nature of their act. The evidence clearly shows that they had discussed this matter among themselves, and when meeting with company representa- tives they were represented by their shop steward. Beyond that, under the' collective-bargaining provisions noted above, at ` a minimum each was attempting to invoke a right existing as a result of collective bargaining between the Union and the Respondent. Thus, without more, their individual - acts were concerned. Interboro. Contractors, 157 NLRB-.1295 (1966), enfd. 388 F.-2d 495 (2d Cir. 1967), which sets' forth a doctrine recently ap- proved by the United States Supreme Court in NLRB- v. City Disposal Systems, 104 S Ct. 1505 (1984).' - . And the concerted nature of each act would not be defeated, even by a finding that the assigned job was in fact safe. Thus (id. at 1516): 2 When this dispute was apparently the subject of a grievance , the res- olution,'if any, is unclear from the record In any event , deferral was not raised as an issue - 3 Case 14-CA-15951, JD-345-83 391 The rationale of the Interboro doctrine compels a conclusion that an honest and reasonable invocation of the collectively bargained right constitutes con- certed activity, regardless of whether the employee turns out to have been correct in -his belief that his right was violated. The second question is whether their refusal to use the stairs - was protected. Since, as the parties agree, good faith is required of an employee who invokes the safety .clause, their refusal is protected only if this test is met. Further, establishing good faith is sufficient, because nothing in the contract requires an employee to perform an assigned job which is, in fact, safe if he, nevertheless, has a good-faith belief it is not.4 Thus the ultimate issue here is whether they had a good-faith belief that using the McKinley Bridge stairs was unsafe. If they did, then they had a right under the contract to refuse the assignment and could not be disci- plined for having done so. If, on the other hand, their belief 'was not in good faith then the Respondent's disci- pline was not violative of the Act. I note there is no evidence that their claim was based on any consideration other than safety. There is no evi- dence they were nitpicking complainers, or that they were-trying'to get out of work, or even that the assign- ment was in any way undesirable. -And- the Respondent does not contend bad faith on the part of any of them. Basically the Respondent argues that their claim of safety was so unreasonable, given the objective facts, that they must be found not to have acted in good faith. The Respondent argues the stairs had been used for some 30 years without incident and, in any event just prior to May 4, and at the suggestion of a fellow employee. along with the Union, handrails were put at the top of the stairs and the truck transporting the employees was af- fixed with a warning light. - In making a safety claim, one is stating he feels there is an unacceptable risk of injury were he to perform the job. Basically he has announced a fear that he would be - injured if required to do the work. - Perhaps a fear can be so groundless and contrary to the general experience that it cannot be the basis of a safety claim, no matter how sincerely held. Thus, even absent a showing of bad faith on the part of an employee (of which there is no evidence here), he still might not with'impunity refuse a job assignment on grounds of safety if the fear he harbors is essentially groundless. Here, I conclude there is sufficient objective evidence to support these employees' assertion of -danger associated with using the McKinley Bridge stairs. First 'is the manner of access to -the. stairs. All agree that 'the individual assigned to use the stairs must be let out of a company truck while the truck is stopped in a lane of traffic in which the designated speed limit is 55 miles per hour. There is no shoulder to pull off on.5 Not- 4 Compare City Disposal where the protected issue was left open; the Court noting that if the contract required an employee to perform a job found to be safe, then his refusal would be unprotected, even if in good faith he believed it to be unsafe 5 There is no evidence whether stopping a vehicle on the bndge -for such a purpose violates state or local law, although such is normally pro- hibited - 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withstanding that the company -truck is now equipped with a flashing yellow light, to stop in an active lane of high speed traffic, I conclude, poses a danger. Then the individual assigned to use the stairs must crawl over the guardrail 'on the bridge and onto the stairs The risk involved in this has apparently been less- ened somewhat by: the addition of rails on. the. stairs at the top. Still the move required is up and over a guard- rail.on a high-speed highway onto a stairway some 90 feet (about nine stories),above'the water. Then one must walk down what can only- be described as a long, steep, narrow, open,-metal stairway' which is connected to the bridge. It shakes' with the passage of vehicles, particularly heavy trucks. ' - In fact, Caldwell stated that he had been at the caisson and had observed the stairs move. He testified, "If I've, never seen them move, I probably would have went. But I've worked out there and I've seen them move that's where really I felt that they neededsomething around them." The Respondent- sought to'-minimize this fact with the testimony of-Ernest Kohlenberger, the, plant manager at Venice. Although he has not actually been on the stairs for about 10 years, he testified that there is "just a vibration" of the stairs from bridge traffic. Schu- man also conceded that the stairs vibrated. The differ- ence between "just a vibration" and "moving" is, I con- clude for purposes of this analysis, insignificant. One standing on the stairs would know it if•a tractor-trailer went by at 55 miles per hour. - Then on reaching- the rather small landing; 60 or so feet above the water, the employee- must attempt to unlock the gate which requires manipulating a lock which is on the other side. And, finally, the employee must descend to'the'entrance of the caisson. From a description of the stairs and the bridge to- which all parties essentially agree, I do not think- it is groundless that one would fear danger of being hurt if required to descend from a truck onto the budge and onto the stairs and make his way down to the caisson. To the contrary, notwithstanding a lack of accidents in the past, fear of-injury on these facts is reasonable. Indeed, when Holloway refused the job assignment in April, he was not disciplined in part because Schuman "more or less agreed with him-he had a reason to be concerned, about Holloway was willing to wade in the flood-stage Mississippi River than use the stairs. . Al though the .Company did thereafter somewhat improve the situation by placing handrails at the top of the stairs and a warning light on the truck, such is insufficient to transform what was concededly a reasonable fear on the part of employees to an unreasonable one under the cir- cumstances. Accordingly, I conclude that the claim of safety taken by Caldwell, as well as Nash and Starks, was reasonable and in good faith. Therefore they had a contractually protected right to decline to use the McKinley., Bridge access to Caisson No. -1. When on May 4 and 5, 1983, the Respondent suspended Caldwell, Nash and Starks, it violated Section 8(a)(1) of the Act and I shall recom- mend an appropriate remedy. IV. THE EFFECT OF, THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above occurring in connection with the Respondent' s business have a close, intimate, and substantial relationship 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 within the meaning of Section 2(6) and (7) of the Act. , V. THE REMEDY - Having concluded that the Respondent engaged in the unfair labor practices found above, I shall recommend' that it cease and desist therefrom, and take certain appro- priate action designed to effectuate the policies' of the Act, including making whole Anthony 'Caldwell, Dacia Nash, and Larry Starks for any loss of wages and other benefits they may have suffered as a result of the Re- spondent's suspension of them on May 4 and 5, 1983, with interest, as provided for in Florida Steel Corp.; 231 NLRB 651 (1977).6 Further, I shall recommend that the Respondent remove from their personnel record any ref- erence to their having been disciplined. for refusal to per- form an assigned job. On these findings of fact and conclusions of law and on the entire record,' I issue the following recommend- ed7 ORDER The Respondent, Union Electric Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending or otherwise discriminating against em- ployees because they. invoke rights provided for in the collective-bargaining agreement with the -Union or other- wise engage in concerted activity protected by Section 7 of the National Labor Relations Act. - (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take-the following affirmative action designed to ef- fectuate the policies of the Act. (a) Make whole Anthony Caldwell, Dacia Nash, and Larry Starks for any loss of wages or other benefits they may have suffered as a result of their, suspension on May 5, 1983, with interest, and expunge from their personnel record any reference to their having been disciplined'for failure to perform a job assignment. - (b) Post at its St. Louis, Missouri facility copies of the attached notice marked "Appendix."8 Copies of the 8 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - 8 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." UNION ELECTRIC CO 393 notice; on forms provided by the Regional Director- for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and be maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the noticess are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps it has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend or otherwise discriminate against employees because they invoked any collective bargained-for right or otherwise engaged in concerted activity protected by Section 7 or the National Labor Relations Act. - - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Rela- tions Act. - WE WILL make whole Anthony Caldwell, Dacia Nash, and Larry Starks for any loss of wages or other benefits they may have suffered as a result of our suspension of them on May 4 and 5, 1983, with interest, and WE WILL remove from their personnel record any reference to their having been disciplined for. failure to use the McKinley Bridge stairwell. UNION ELECTRIC COMPANY The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.