American River Constructors

National Labor Relations Board - Board Decisions

Mar 22, 1967

163 N.L.R.B. 551 (N.L.R.B. 1967)

AMERICAN RIVER CONSTRUCTORS 551
equivalent positions , without prejudice to their seniority or
other rights or privileges , and make them whole for any,
loss of pay suffered by reason of the discrimination by
payment to each of them of a sum of money equal to that
which he or she would have earned as wages from the date
of the discrimination to the date of the reinstatement, less
his or her net earnings during such period in accordance
with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, together with interest on such
sum, such interest to be computed in accordance with the
formula prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the folllowing:
CONCLUSIONS OF LAW
1. Ventre Packing Co., Inc., is, and has been at all
times material herein , an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Truck Drivers & Helpers Local 317, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
3. By laying off and discharging George Monsour,
Charles Hildreth, Frank Smith, and Maxine Buchanan and
by discharging them and Georgianna Rosenberger,
Elizabeth Smorol, Estella Black, and Shirley McGregor,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
4. By granting to its employees increases in wages on
April 1 , 1966 , the Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
5. The Respondent, since the dates of the layoffs and
discharges described in section III, above , by failing and
refusing and continuing to fail and refuse to reinstate said
employees to their former or substantially equivalent
position of employment , has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of'the Act.
[Recommended Order omitted from publication.]
American River Constructors and K.W.
Sherrod . Case 20-CA-3795.
March 22,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On August 26, 1966, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety , as set forth in the attached
Trial Examiner 's Decision . Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
163 NLRB No. 67
filed an answering brief to the General Counsel's
exceptions to the Trial Examiner '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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision, the exceptions and briefs, and
the entire record in this case , and finds merit in the
General Counsel 's exceptions . Accordingly, the
Board adopts the findings of the Trial Examiner only
to the extent that they are consistent with the
decision herein.
The complaint alleges that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing
to employ K.W. Sherrod on August 25, 1965,
because he had engaged in union and other
protected activities.
As described more fully in the Trial Examiner's
Decision , Sherrod, in June 1964 , was working as a
driver at the Respondent ' s French Meadows jobsite.
At all relevant times Respondent , through a chapter
of Associated General Contractors , and Local 150,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , hereinafter referred to as the Union, were
parties to a collective-bargaining agreement
covering Respondent 's employees in the area
involved in this . case. As a result of protests from a
number of its drivers , Respondent on June 17
appointed Sherrod as working foreman . The drivers,
however , felt that a nonworking foreman would be
preferable and, at a union meeting on July 14, Union
Steward McAdams proposed that employees refuse
to work until a nonworking foreman was appointed.
Sherrod then addressed the drivers , reminding them
of the no-strike clause in the agreement and
suggesting that there would be less "trouble " if they
offered to quit if their demands were not met. The
drivers accepted Sherrod's advice and they
approached the Respondent 's Superintendent Jiles.
Acting as the drivers ' spokesman , Sherrod explained
to Jiles the nature of their complaint ; he threatened
that the drivers would quit unless they received
orders only from their own foreman in the future.
Jiles agreed that from then on only he or their
foreman would give them orders, and the drivers
returned to work.
On July 25, the Respondent demoted Sherrod
from his position as working foreman and
transferred him from French Meadows to Oxbow, a
less desirable site. Sherrod continued to work for
Respondent at various jobsites between July and
December 22, at which time he was laid off because
of lack of work . Early in January 1965 , Respondent
sent Sherrod a termination slip, indicating for the
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first time that he was not "OK for rehire." On
August 25, Sherrod was dispatched by the Union to
the Respondent's Hell Hole worksite, in response to
the Respondent's request for drivers, but he was
refused employment by the Respondent.
The Trial Examiner initially found that Sherrod
was refused reemployment, not because of his
alleged poor safety record and his preference for
employment at Hell Hole or French Meadows, but
rather because of his activity relating to the driver
grievance in July 1964. The Trial Examiner further
found that in talking to employees about grievances
and in pressing for their correction, Sherrod was
engaged in protected activity; he concluded,
however, that Sherrod was refused employment for
the unprotected activity of encouraging and
participating in employees' threat to quit in the face
of a no-strike clause in the bargaining agreement. He
therefore recommended that the complaint be
dismissed.
We agree with the Trial Examiner that Sherrod
was refused employment because of his activity in
July 1964; we also agree with the Trial Examiner that
Sherrod was engaged in protected concerted activity
in discussing grievances with other employees;
however, contrary to the Trial Examiner, we find
that, even if Sherrod's participation in the threat to
quit was unprotected, the Respondent's subsequent
conduct constituted condonation of the unprotected
aspect of Sherrod's otherwise protected activity.'
A court of appeals has recently stated that the
Board's doctrine of condonation "prohibits an
employer from misleadingly agreeing to return its
employees to work and then taking disciplinary
action for something apparently forgiven."2 It is
apparent that Respondent was displeased with the
manner in which Sherrod had participated in the
employee activity in July 1964 designed to obtain a
nonworking foreman; however, Respondent took
steps to manifest its displeasure and to punish
Sherrod. Thus, within 2 weeks, Respondent
demoted Sherrod from his position as foreman and
transferred him to a less desirable worksite,
admittedly in part because he had "stirred up" the
drivers.3 Thereafter, for a period of about 5 months,
Respondent continued to employ Sherrod more or
less continuously at three separate worksites; during
this period, on two separate occasions, Sherrod was
rehired by Respondent after having been laid off for
economic reasons.'' By this affirmative conduct,
Respondent made it amply clear that it had already
punished Sherrod for his part in the July incidents
and that, apart from such punishment, it was willing
to forget and forgive. In view of the foregoing and the
' We therefore find it unnecessary to reach the question,
decided by the Trial Examiner, whether a threat to quit in the face
of a no-strike clause is unprotected activity
i Packers Hide Association, Inc v N L R B, 360 F 2d 59
(C A 8)
1 On July 27, 1964, Sherrod filed a grievance over his demotion
record as a whole, we find that the Respondent is
scarcely in a position to assert that its refusal to
rehire Sherrod was based on the allegedly
unprotected aspects of Sherrod's activity in July
1964; as we have already found that the Respondent
refused to rehire Sherrod because of his July 1964
activity, which was otherwise protected, we find,
contrary to the Trial Examiner, that by such conduct
the Respondent violated Section 8(a)(3) and (1).
In view of the foregoing, and the record as a
whole, we find that Respondent violated Section
8(a)(3) and (1) by refusing to rehire Kenneth W.
Sherrod on August 25, 1965, because he had
engaged in union and other protected activity.
The activities of the Respondent, as set forth in
the Trial Examiner's Decision, as modified above,
occurring in connection with the operation of the
business of the Respondent, have a close, intimate,
and substantial .:clation 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
American River Constructors, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters
Local 150, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of its
employees, by discriminatorily refusing to hire or
rehire Kenneth W. Sherrod, or any of its employees,
or in any other manner discriminating in regard to
hire or tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form labor
organizations, to join and assist labor organizations,
to bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
therefrom, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the purposes of the Act:
(a) Offer to Kenneth W. Sherrod immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority and other rights and privileges.
and transfer; at the hearing , counsel for the Respondent admitted
that Sherrod 's demotion and transfer were in part due to the fact
that he "kept the other Teamster employees stirred up "
4 On August 3, Sherrod was hired at Hell Hole after being laid
off on July 29 at Oxbow, on December 8, he was rehired at Hell
Hole after being laid off at the site on November 10
AMERICAN RIVER CONSTRUCTORS 553
(b) Notify Kenneth W. Sherrod if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Make whole Kenneth W. Sherrod for any loss
of pay he may have suffered by reason of the
Respondent's discrimination against him by
payment to . him of a sum of money which he
normally would have earned as wages from the date
of the refusal to hire to the date of the Respondent's
offer of reinstatement, less his net earnings during
said period, in accordance with F.W. Woolworth, 90
NLRB 289, with interest thereon at the rate of 6
percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
(d) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at all the Respondent's projects copies of
the attached notice marked "Appendix."5 Copies of
said notice, to be furnished by the Regional Director
for Region 20, after being duly signed by the
Respondent's representative, shall be posted by said
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to its employees are
customarily posted. Reasonable steps shall be taken
the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words "a Decision and
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
in regard to hire or tenure or employment or any
term or condition or employment.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist any
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of mutual aid or protection, as
guaranteed in Section 7 of the Act.
WE WILL offer to K.W. Sherrod immediate
and full reinstatement to his former or
substantially equivalent position, without
prejudice to his seniority and other rights and
privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of
the discrimination against him.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
any labor organization, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as amended.
AMERICAN RIVER
CONSTRUCTORS
(Employer)
Dated By
(Representative) (Title)
Note: We will notify K.W. Sherrod if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-0335.
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage membership in
Teamsters Local 150, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization of our employees, and
WE WILL NOT discriminatorily refuse to hire or
rehire Kenneth W. Sherrod, or any of our
employees, or discriminate in any other manner
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard before me in Sacramento,
California, on April 19 and 20, 1966, on complaint of the
General Counsel and answer of American River
Constructors, herein called Respondent. The complaint
was issued on December 23, 1965, upon a charge filed on
September 28, 1965. It alleges that Respondent
terminated the Charging Party, K.W. Sherrod, on
August 25, 1965, because of his activities on behalf of
Teamsters Local 150, International Brotherhood of
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, thereby violating Section 8(a)(1) and (3) of the
National Labor Relations Act, herein called the Act.
The General Counsel and the Respondent have filed
briefs herein and they have been carefully considered.
Up-n the entire record and my observation of the
witnesses, I hereby make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a joint venture sponsored by Kaiser
Engineers, a division of Kaiser Industries Corporat. on, is,
and at all times material herein has been, engaged in the
construction of a series of dams, powerhouses, and tunnels
on the American River as part of a hydroelectric
development for the Placer County, California, Water
Agency During the past year, in the course and conduct of
its business operations, Respondent purchased and
received goods and materials directly from outside the
State of California valued in excess of $50,000. Also,
during the past year, Respondent has purchased and
received goods and materials valued in excess of $50,000
from suppliers located in California, who received said
goods and materials directly from outside the State of
California.
I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 150, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue and Prefatory Statement
The principal issue in this case is whether or not
Sherrod was placed in an ineligible -to-hire category and
was refused employment on August 25, 1965, because of
his role in encouraging employees to agree to, and to
threaten , a strike in violation of a no-strike clause, or
because he was a spokesman for employees in a grievance
matter, and whether or not he was engaged in protected or
unprotected activity.
The American River Project covers a distance of
approximately 45 to 50 miles along the American River
with a series of construction sites. The three worksites
involved in this case are called Oxbow, Hell Hole, and
French Meadows . Respondent 's principal administrative
offices are located at a place called Walker Ranch . At Hell
Hole and French Meadows there is considerable overtime
work for drivers whereas at Oxbow a workweek normally
consists of approximately 40 hours.
Respondent adheres to a collective - bargaining
agreement executed between the Union at a chapter of the
Associated General Contractors covering the area
involved. Pursuant to this agreement the Union is used for
referral of drivers. The contract has a no-strike clause as
follows:
It is mutually understood and agreed that during
the period when this agreement is in force and effect,
the Union or Local Union will not authorize any strike,
slow-down, or stoppage of work in any dispute,
complaint or grievance arising under the terms and
conditions of this Agreement, except such disputes,
complaints, or grievances as arise out of the failure of
any individual employer to comply with the provisions
of the hiring clause, Sections 3(A) and 3 (B) hereof and
except as otherwise expressly provided in this
Agreement....
Sherrod has worked for Respondent at the following
jobsites and on the following dates prior to the alleged
refusal to employ on August 25, 1965.
May 8-12, 1964, Oxbow (quit); May 21-July 25, 1964,
French Meadows (transferred to Oxbow); July 29,
1964, Oxbow (1 day; reduction in force);
Aug. 3-Sept. 5, 1964, Hell Hole; Sept. 6-Nov. 6,1964,
French Meadows; Nov. 6-10,1964, Hell Hole (laid off;
snowstorm); Dec. 8-22, 1964, Hell Hole (laid off;
break in dam).
On July 25, 1964, Sherrod was demoted from a position
as working foreman and transferred from French
Meadows to Oxbow. The reasons assigned for this action
were (1) a safety incident and (2) because he "stirred up
the Teamster employees."
Sherrod's last termination, prior to August 25, 1965, was
in a reduction in force following a break in one of the dams
on December 21, 1964. In the early part of January 1965 a
list of the employees laid off was reviewed by Bradley
Johnson , a field manager of industrial relations for
Respondent. He was assisted in this by Alfred Davis,
safety engineer , and Larry Balliett , personnel
representative . On this occasion the file of Sherrod was
marked that he was ineligible for rehire . Johnson testified
that he did this "because of the records in Mr. Sherrod's
file of terminations , some quits, and because of his safety
record." Also Sherrod was sent a termination slip dated
January 5, 1965, and the Union a letter dated January 12,
1965, to the same effect.
In the last part of July or early August 1965, Sherrod
went to Respondent 's administrative offices at Walker
Ranch and talked with Johnson. He told Johnson that he
was near the top of the Union's area-preference out-of-
work list and that he would soon be dispatched for work
somewhere. He wanted to find out if he would be allowed
to go to work at Hell Hole. Sherrod wanted employment at
this jobsite because of the higher earnings from overtime.
He did not want to pass up other job opportunities,
however, and wait for referral to Hell Hole if he would not
be accepted.
Bradley reviewed Sherrod's personnel folder and asked
him why he had quit at Oxbow in May 1964. Sherrod
replied that he had wanted to get work "up the hill"
(French Meadows or Hell Hole) where he could work more
hours. Johnson asked him if he would work at Oxbow, and
Sherrod replied that he could not afford to work 40 hours a
week there if he could work 70 or 80 hours a week "up the
hill." Johnson told him he could not choose his jobsite, and
stated that because of his past trouble with the Company,
he could not come back to work on the project. At this
meeting Sherrod also inquired about some additional
backpay he stated was due him under an arbitrator's
AMERICAN RIVER CONSTRUCTORS 555
award in connection with a grievance he had filed on his
demotion and transfer to Oxbow on July 25, 1964.'
On August 25, 1965 , Sherrod was dispatched by the
Union with two other drivers to Respondent 's Hell Hole
jobsite for employment . One of these three refused work
there ; Sherrod and the other referral were issued rehire
slips and told to sign into camp and get their meal tickets.
Personnel Representative Balliett was present at this
jobsite during this time and recognized Sherrod. He
immediately informed the person in charge there that
Sherrod was not for rehire . When Sherrod returned from
the camp for his work assignment , he was informed that he
could not be employed and he was paid 2 hours ' "showup
time ." He was also given a termination slip marked "not
eligible for rehire."
B. Union Activities of Sherrod
In June 1964 , Sherrod was employed by Respondent at
French Meadows on the "swing shift " as a belly-dump
driver . There were approximately 15 to 20 drivers on this
shift at that time and there was no foreman over the
drivers. The union contract that Respondent followed
provides that when there are seven or more drivers on a
jobsite , one shall be designated as foreman or working
foreman.
The drivers expressed among themselves and to Union
Steward Bob McAdams some dissatisfaction over the fact
that pit foremen , in charge of aggregate pits, were on
occasions changing the orders of drivers or giving them
new orders . On June 17, 1964 , Sherrod called a meeting of
the drivers , and McAdams and the drivers took the matter
up with Day -Shift Driver Foreman Lester Johnson before
commencing their work . Johnson called Superintendent
O.J. Jiles on the two-way radio and reported that the
drivers were not going to work until they got a foreman.
Jiles then came to the area bringing Day-Shift
Superintendent Raymond Martin with him . Martin or Jiles
told the drivers that he did not have authority to designate
a foreman , but that soon he would be able to do so.
McAdams stated , "We are not going for any more of that.
It is either tonight or no Teamsters ." Jiles then offered the
position of working foreman (who receives 12-1/2 cents
per hour more than drivers ) to McAdams , but McAdams
replied that he could not take it as he was job steward.
Jiles offered it to Sherrod who accepted the position. The
drivers then went to work.2
On July 14 , 1964 , Union Steward McAdams called a
meeting of drivers. Sherrod was asked to bring the drivers
on his "spread ." The meeting took place on the lunch
hour , about 8 :30 p.m . McAdams related that he had just
had an argument with a pit foreman over contradictory
orders given to drivers by different supervisors and stated
that they needed a nonworking foreman . He stated that if
they had a foreman on the same level of authority as the pit
foreman and other foremen , they would stand a better
chance in the event of disagreement . He suggested that
they refuse to work until a nonworking foreman was
appointed.
Sherrod then took over the meeting. He told the men
that this would be the wrong way to handle the matter; that
they could not refuse to work ; that to do so would be, in his
opinion , a violation of the contract and would get them and
the Union into trouble. He advised them that if they
wanted to refuse to take orders from the various foremen,
they could quit or offer to quit as a group , and in this way
they would display power and unity . He, or someone,
stated that he realized some of the drivers could not quit
because of financial problems, and anyone fitting into this
category was asked to step outside of the circle or group of
men. None left the group.3
The group then went to Superintendent Jiles who was
seated nearby in a station wagon . Sherrod acted as
spokesman . He told Jiles that there had been several
instances where different foremen had given contradictory
orders to drivers and that the men were 100 percent in
agreement that they would take orders only from him
(Jiles ) or from Sherrod in the future , and that if that was
not agreeable with him , the men would offer to quit in a
group. Jiles stated that he wanted to have a nonworking
foreman on that shift but that Respondent 's administrative
office would not allow him to have one. He agreed,
however , that the only persons the drivers would have to
take orders from would be himself or working foreman
Sherrod . The drivers then continued with their work.
C. Sherrod 's Safety Record
There are two incidents mentioned by Respondent as
reflecting on Sherrod 's safety record . The first was an
incident in which Sherrod , as working foreman , directed
that one truck push another truck that was stuck. This
occurred on July 23 , 1964 . There was no damage or injury
on this occasion . Respondent contends that this was an
error in judgment by Sherrod because of possible damage
to a truck . On July 25, 1964 , Sherrod was transferred from
French Meadows to Oxbow because of this incident and
because he "kept other Teamster employees stirred up."
Sherrod filed a grievance on this matter resulting in a
hearing before an arbitrator.
Respondent 's attorney , Berner , stated in the arbitration
proceedings that one of the reasons for Sherrod's transfer
and demotion was that he "kept the other Teamster
employees stirred up to the point where he was affecting
production by having meetings on the side, having
discussions with the men while they were supposed to be
working." He elaborated on this in a letter to the Board
dated October 20, 1965 , in which he stated that Sherrod
"took the position that the Teamsters should have a non-
working foreman . And, when it appeared to Sherrod that
i Sherrod testified that Johnson told him that because of his
past "union" trouble with the Company , he could not clear the
office Johnson denied this expression . From my appraisal of the
witnesses and of their testimony , I find that Industrial Relations
Manager Johnson did not use the word "union" when telling
Sherrod he could not be employed The "trouble " was, however,
and as will be found herein , certain union activities of Sherrod.
2 In the position of working foreman, Sherrod was not a
supervisor within the meaning of the Act.
9 There is considerable testimony regarding the matter of this
circle-as to whether or not a circle or mark was physically drawn
on the ground . Sherrod and one other witness testified that it was.
One employee , Richard Henry, who later became a union
representative , testified that he did not know of any circle and
thought he would have recalled it if one had been drawn on the
ground; but he did testify , however , that the men were asked to
cross from one area to another or an imaginary line, if they were
unable to leave the job because of their financial condition. I find
it not material to determine whether or not a line was physically
placed on the ground or whether it was a line or a circle. As a
point on credibility it is not determinative The witnesses
generally agree that some means was employed to separate those
who could not afford to quit their jobs.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company was moving too slowly in providing the group
of Teamster drivers with a non-working foreman, he
spearheaded a move whereby the Teamster drivers
refused to take orders from the Pit Foreman on the job."
Attorney Berner contended in his letter that this
necessitated the presence of the job superintendent at
periodic intervals during the shift to give orders to the
drivers, and that when the job superintendent was not
available, the drivers were idle on the job, thus creating a
loss of production. However, there is no evidence of any
loss of production. The first meeting of June 17 occurred
before the drivers started to work. The second meeting of
July 14 occurred during the lunch period.
The second safety incident was an accident involving a
dumptruck driven by Sherrod and a private logging truck.
This accident occurred in October 1964 and was
investigated by Safety Engineer Davis. The accident was a
minor one and no criticism was made nor disciplinary
action taken at the time.
D. Other Factors Bearing on the Issue
As previously mentioned, Sherrod's file was reviewed
following a reduction in force in December 1964 and was
marked that he was ineligible for rehire. In January 1965 a
meeting of supervisors was called by Respondent to
discuss the resumption of operations and the recall of
employees. The supervisors were told that no employees
would be recalled by name unless they were cleared by
Bradley Johnson or by the general superintendent.
Following this meeting, Lester Johnson, the nonworking
day-shift foreman over the drivers at Hell Hole, called
Bradley Johnson on the telephone and advised him that he
would need about 8 or 10 drivers.' Later the same day
Bradley Johnson called Lester Johnson on the telephone
and asked him to prepare a list of troublemakers and send
it to him, and told him, "Be sure Ken Sherrod is on the
list." Lester Johnson then prepared his list which
contained about eight or nine names, including Sherrod's,
and dispatched it to Bradley Johnson.5
On September 28, 1965, Sherrod filed the charge in this
case. Shortly thereafter Bradley Johnson had a
conversation with Lester Johnson regarding Sherrod. (At
this time Lester Johnson was employed by a truck broker
having a subcontract with Respondent to haul concrete
aggregate; he had been laid off from Respondent in March
1965.) Bradley Johnson stated that Sherrod had an unfair
labor practice suit against Respondent, and he asked
Lester Johnson "if there were any safety incidents that he
was familiar with concerning Sherrod." At the time
Bradley Johnson had discussed the case with a Board field
examiner and was investigating Sherrod's work record.
E. Conclusions
Respondent contends that it objects to employment of
Sherrod because of the two safety incidents, his effort to
Lester Johnson, as nonworking foreman, discharged drivers,
determined the number of drivers needed and hired them through
Respondent's main office and the union hiring hall, and generally
directed the drivers at the Hell Hole jobsite I find that he was a
supervisor within the meaning of the Act.
5 Bradley Johnson denied requesting the list of troublemakers
or receiving such a list from Lester Johnson He acknowledged
that he had many telephone conversations with Lester Johnson,
get employment at Hell Hole or French Meadows rather
than at Oxbow, and the incidents of his "stirring up" the
drivers at French Meadows in the summer of 1964.
Based on statements of Respondent's attorney in the
arbitration hearing and in his letter to the Board on
October 20, 1965, the statements of Industrial Relations
Manager Johnson to Foreman Johnson in January and in
the fall of 1965, the nature of the safety incidents charged
to Sherrod, the logic in senior employees seeking better
paying jobs, and related testimony, I find that the safety
incidents and Sherrod's preference for employment at
Hell Hole or French Meadows were not actual or
proximate causes of Respondent's action against Sherrod;
these were merely added as points on the negative side in
Respondent's evaluation of Sherrod as an employee. I find
that the real reason Sherrod was placed in the ineligible-
to-hire category and was refused employment on
August 25, 1965, was his union activities in "stirring up"
the drivers in June and July 1964. In doing so, was Sherrod
engaged in "protected" union activities?
On June 17, 1964, Sherrod called a meeting of the
drivers on the matter of a grievance that there was no
working or nonworking foreman on their shift. He
participated in the meeting, but Union Steward McAdams
was the spokesman for the group. The grievance was
presented to Respondent by the drivers with the threat
that it was to be remedied that evening "or no drivers." On
July 14, 1964, there was another meeting of drivers on a
related working condition grievance. Union Steward
McAdams advocated that they refused to work until the
grievance was corrected. Sherrod took over the meeting;
he recommended that they offer to quit or quit instead and
that they do this as a group to display power and unity, and
he acted as spokesman for the group.
In talking with employees about grievances and in
pressing Respondent for corrections of grievances,
Sherrod was engaged in protected union activities. In
encouraging and participating in a threat to quit in a group,
in face of a no-strike clause, Sherrod was engaged in
unprotected union activities.6 The issue is, was Sherrod
refused employment because of his "protected" union
activities? I find that this is not the case. Sherrod was
refused employment for his role in "stirring up" the
drivers. The drivers were stirred up or encouraged to offer
to quit in a group, and in fact to quit if their demands were
not met. The drivers agreed to do so. It is true that similar
action might have been taken irrespective of Sherrod.
McAdams was encouraging a refusal to work until Sherrod
took over the meeting. Sherrod was of the opinion that a
threat by employees "to quit" if demands were not met
would not constitute a violation of the contract. But a
strike is a refusal in concert to work to enforce a demand
for certain concessions and it is no less so by having other
labels. A notice of an unconditional abandonment of
employment, however, is in a different category and is not
activity protected by Section 7 of the Act. But, I find that
there was no intention by Sherrod or by the drivers
and that it was very possible Lester Johnson requested drivers on
the occasion mentioned I credit Lester Johnson's testimony, it is
consistent with other action of Respondent, and it is logical that
management would want to know employees whom their
supervisors would prefer not be reemployed
6 Kraft Foods Co., 108 NLRB 1164; Stockham Pipe Fittings
Company, 84 NLRB 629 For a similar case involving attempt to
induce slowdown, see General Electric Co., 155 NLRB 208
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS
unconditionally to abandon their employment with
Respondent.'
It was Sherrod who called the first meeting, took over
the second meeting, encouraged quitting in a group if the
grievance were not corrected, and acted as spokesman for
the group. He is the one against whom Respondent took
the disciplinary action, complained of herein, of placing
him in an ineligible-to-hire category; and this action does
not become illegal because similar action may not have
been taken against others in the group.8 Also I do not find,
in the circumstances of this case, that because Sherrod
was not terminated for this conduct and was again
employed by Respondent from August 3 to December 22,
1964, that Respondent thereby condoned Sherrod's action
in encouraging group quitting.9 On July 25, 1964,
disciplinary action was taken against Sherrod because of
the incidents of his "stirring up" the drivers and because
of a safety incident occurring on July 23. A grievance was
filed over this disciplinary action, a hearing was held on
March 24, 1965, and the arbitrator's opinion and award is
dated July 12, 1965.
Respondent's attorney, in the arbitration hearing and in
his letter to the Board of October 20, 1965, complains that
Sherrod had meetings and discussions with drivers and
that spearheaded a move to get drivers to refuse to take
orders from pit foremen. It could be contended that
Sherrod's protected and unprotected activities were
motivations for the discrimination against him and that his
protected activities were "a part" of the reason for the
discrimination. I am of the opinion that there is
insufficient evidence to conclude that Sherrod was
discriminated against because of his "protected" union
activities and that his action in inciting employee
agreement to and threat of strike action was merely a
pretext. There is not extensive evidence on his other, or
protected, activities. He testified that he had only about
five discussions with other drivers on the grievance; there
is no evidence that he incited the drivers to complain
about being given orders from pit foremen. And, there is
an absence of evidence of conduct violative of Section
8(a)(1) of the Act or of union animus by Respondent.
I find that Sherrod was placed in an ineligible-to-hire
category and was refused employment because of
unprotected union activities in encouraging and
participating in a decision and threat of group quitting to
enforce certain demands, in face of a no-strike clause, and
that this action against him by Respondent is not violative
of Section 8(a)(3) of the Act.10
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
r See Crescent Wharf and Warehouse Company, 104 NLRB
860, for a discussion of the distinction between a notice of intent
to resign because of certain conditions and a threat to resign if
conditions were not met The latter would normally be protected
activity except in the face of a no-strike clause
' California Cotton Cooperative, etc, 110 NLRB 1494;
Lenscraft Optical Corporation, 128 NLRB 807
' Stockham Pipe Fittings Co , supra
10 Alton Box Board Company, 155 NLRB 1025 Also see Metal
Blast, Inc. v N L R.B., 324 F.2d 602 (C.A 6), enfg. 139 NLRB 540
In this case the Board held that the discrimmatee was discharged
for his protected activities (insisting that layoffs be accomplished
on basis of seniority) rather than because he allegedly incited a
wildcat strike.
557
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not violated Section 8 (a)(3) or (1) of
the Act as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
International Association of Heat and Frost
Insulators and Asbestos Workers, Local
No. 8, AFL-CIO and Preformed Metal
Products Company, Inc. Case 9-CC-378-2.
March 22,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 17, 1966, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief. The Charging Party filed cross-exceptions and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner, as
herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
I The Trial Examiner found that there is no probative evidence
that Baldwin's desire to use the Preformed jacketing in any way
violated the bargaining agreement or infringed upon work
regularly or traditionally performed by Baldwin ' s employees.
Accordingly , he concluded that, as the work involved was not
properly reserved to Baldwin 's employees , there was no
substance to the Union 's defense that it was justified in forcing
Baldwin to stop using a product manufactured by Preformed
Metal Products . Therefore , we rely upon this ground alone in
affirming the Trial Examiner 's finding of a violation of Section
8(b)(4)(i) and (ii)(B) of the Act, and find it unnecessary to pass
upon, and do not adopt , the Trial Examiner's further conclusion
that Baldwin did not have control over whether the Preformed
product should be used
163 NLRB No. 68