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Ewing v. National Labor Relations Board

decided: April 17, 1984.


Petition to set aside an order of the National Labor Relations Board dismissing Robert T. Ewing's complaint alleging that Herbert F. Darling, Inc. violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by refusing to recall him from layoff because of a belief that he filed a complaint with the Occupational Safety and Health Administration.

Kaufman, Oakes and Winter, Circuit Judges.

Author: Kaufman

KAUFMAN, Circuit Judge:

It is the task of trial judges to separate factual wheat from evidentiary chaff, and appellate courts must accord great deference to these determinations. The temptation to displace the trial court's judgments with our own is often strong, but the integrity of the decision-making process requires that we do so only in cases of clear error. Fed. R. Civ. P. 52(a). The same policies apply in the administrative context when decisions of the finder of fact are brought under review.

In this case, the National Labor Relations Board appears to have disregarded this principle in reversing credibility determinations made by an administrative law judge. The Board found that the petitioner failed to show he was subjected to retaliatory treatment by his employer. We reverse the Board's decision, which we find unsupported by substantial evidence. Subsequent to issuing its order here, however, the Board overruled a principle of law on which this case turns. We must therefore remand to the Board for a determination whether its new interpretation of the law should be applied retroactively so as to bar the relief originally ordered by the ALJ.


Many of the facts relevant to this petition are vigorously disputed by the parties. We begin with those that are not. Petitioner, Robert T. Ewing, is a piledriver and a member of the Piledrivers, Dock Builders, Trestle, Crib Breakwater Builders, Local 1978, AFL-CIO (the "Union"). He has worked on numerous construction projects in the Buffalo, New York area. The construction business is by nature cyclical, and piledrivers experience frequent layoffs and recalls as activity in the industry fluctuates in relation to seasonal change and varying economic conditions. Consistent with this pattern, Ewing worked off and on for the construction firm Herbert F. Darling, Inc., from 1967 through early 1980.

Nineteen hundred and eighty, however, was a banner year for construction in western New York and, beginning in March, Ewing was consistently employed by Darling as part of a five-man team of piledrivers working on a rapid transit project in Buffalo. Ewing was referred to the job by the customary means: a Darling supervisor contacted Union business manager William Burke, and asked for the requisite number of piledrivers. The company sometimes requested workers by name; on other occasions, it simply stated the number needed. Ewing's team worked through the summer and fall, until all five men were laid off on December 3, with the promise of new work in about a month. On December 19 all members of the crew except Ewing were recalled, and continued to work steadily into the following year. Ewing was not recalled until April 27, 1981, and worked only a week before being laid off again. He was recalled for three brief periods in the ensuing months, and finally, in December, was restored to Darling's regular employ.

Petitioner's and respondent's explanations of the latter events are in sharp conflict. Ewing testified that when he was not recalled after about a month, he called Burke and told him he was going to the rapid transit job site to find out what was happening. At the site he encountered Richard Radel, project manager for Darling, who told him he expected to have more work in a week or two. Ewing remained in laid off status, however, and sometime later communicated with Burke again. At this point, Burke testified, he told Ewing that he heard that Darling officials believed Ewing had reported the company to the Occupational Safety and Health Administration ("OSHA"), resulting in an inspection of the rapid transit site in October 1980 which uncovered several safety violations. Burke told Ewing there were rumors that "you blew the Darling Company into OSHA, and that you won't go back to work for them any more."

Ewing testified that he immediately called Roy Shafer, Darling's vice president, who bluntly confirmed the rumor. The following day, Ewing visited the OSHA office, and was advised that their file contained no letter bearing his name. With that information, Ewing and Burke then met with Shafer who, both testified, stated he had narrowed to three the list of possible informants in the OSHA incident, and that in any case, he did not want Ewing at the company again. After Burke left the meeting, Ewing asked Shafer and Radel (who had arrived in the interim) whether there was anything wrong with his workmanship or attitude. He was told there was not.

Ewing immediately communicated with an attorney, James Kogler, to solicit aid in getting his job restored. Kogler wrote to Herbert Darling and later spoke by telephone with his attorney, Frederick Turner. Kogler testified that Turner informed him "there was a question of fact about the OSHA issue," and that he wanted verification that Ewing had not contacted OSHA, and a statement from Burke about the Shafer-Burke-Ewing conversation. Kogler obtained a letter from OSHA, notified Turner of that fact, and claims he was told that the statement from Burke was no longer necessary. Shortly thereafter, Turner wrote a letter to Kogler confirming that Ewing would be recalled to work.

Ewing was, in fact, recalled on April 27. Ewing related that on May 4 Darling visited the jobsite, and acknowledged to him that he had been treated unjustly. Darling, Ewing testified, told him that "he wanted to at least try and make amends for it by giving me back some work." Notwithstanding Darling's statement, however, Ewing was laid off the same day, and worked very little over the next seven months. Burke testified he called Darling once during that period, and that Darling conceded to him that Ewing had been treated badly and that he would attempt to get him back to work. Ewing filed an unfair labor practice charge with the NLRB on July 21. He was not recalled thereafter until December, and then worked until the hearing on this matter in January 1982.

Darling's witnesses confirmed that the conversations testified to by Ewing and Burke had occurred, but denied that the OSHA incident had ever been discussed as bearing on their failure to recall Ewing. Shafer testified that there was simply not enough work to justify recalling Ewing, and that he had heard reports of problems with Ewing's work from his supervisors. Shafer also stated that he had known all along that, because the OSHA inspection was a general one involving the entire jobsite, it could not have been triggered by a complaint about any particular job-related condition. Radel testified that Ewing had less seniority on Darling jobs than any of the other men on his team, which accounted for his seemingly disparate recall record. Radel acknowledged, however, that both Darling and Shafer at different times asked him whether he knew of any connection between Ewing and OSHA. Radel also stated that Ewing was the only man hired directly from the union hall for the rapid transit project after December 1980, and that Radel called for him "on Mr. Darling's request or direct orders." Darling denied he had ever admitted that Ewing had been treated discriminatorily as a result of the alleged OSHA incident, but did concede that he "chewed Roy [Shafer] out good for any accusation at all, because it's a violation, and it's not our company policy, and . . . you don't do things like that."

After a two-day hearing, and upon consideration of the full record and "observation of the witnesses and their demeanor," the ALJ held that Ewing had been discriminated against for protected concerted activity in violation of § 8(a)(1) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1). He specifically credited the testimony of Ewing and Burke, and discredited that of Shafer. He ordered Darling to cease and desist from retaliating against employees for the actual or apparent ...

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