Anco Insulations

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 612 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anco Insulations, Inc. and Larry J. Ourso, Sr.
Dow Chemical Company, Louisiana Division and
Larry J. Ourso, Sr.
The McCarty Corporation and Larry J. Ourso, Sr.
Cases 15-CA-6910, 15-CA-6911, and 15-CA-
6912
January 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 13, 1979, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in this
proceeding. Thereafter, Respondent Dow Chemical
Company, Louisiana Division, filed exceptions and a
supporting brief; the General Counsel filed limited
exceptions and a supporting brief; Respondent Anco
Insulations, Inc., filed limited cross-exceptions and a
brief in support thereof and in answer to the General
Counsel; Respondent McCarty Corporation filed lim-
ited cross-exceptions and a brief in support thereof
and in answer to the General Counsel; the Respondent
Dow Chemical Company, Louisiana Division, filed a
brief in answer to the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The facts are more fully set forth by the Adminis-
trative Law Judge in the attached Decision. Briefly,
Anco Insulations and McCarty Corporation were
contractors on Dow Chemical Company's construc-
tion project. Charging Party Larry J. Ourso, Sr.,
worked for Anco as insulation installer until his
discharge on April 28, 1978. After a number of
unsuccessful oral complaints, Ourso, on March 28,
1978, filed a written complaint that scaffolding on
which he was working was unsafe. The next day, a
foreman called the union steward into his office and
said that he had the complaint from Ourso, and that
he had to get Ourso off the job. He said that Dow's
project engineer wanted Ourso off the job. Ourso
heard about this and complained to Dow's safety
Respondent Dow Chemical Company, Louisiana Division, has excepted
to certain credibility findings made by the Administrative Law Judge. It is the
Board's established 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
247 NLRB No. 81
engineer that he was going to be discharged because of
his safety complaint. The safety engineer contacted
Dow's project engineer, who reported back that Ourso
was not going to be terminated.
In late April 1978, Ourso and another employee
noticed that insulation was apparently being installed
in nearby furnaces by another contractor. Ourso
mentioned the matter to the union steward because it
possibly involved a jurisdictional dispute. Because he
would not be at work the next day, the steward told
Ourso to call the union office. Ourso did so and was
told to check on the matter. On April 27, Ourso went
into the furnace, questioned employees working there,
and checked on the type of work being done. He
phoned his findings to the union office and the next
day told his steward about the matter. About 1 p.m.
on April 28, Ourso was fired by Anco's foreman, who
said that Ourso had been seen inside the furnace, and
Dow's project engineer wanted him off the job.
The following Monday, May 1, Ourso picketed an
entrance gate at Dow from about 5:50 to 9:15 a.m.
with a sign stating, "Anco Industrial Insulators
Unfair." As a result, fellow workers using that gate
stayed off the job. Anco secured an injunction that
morning prohibiting Ourso from picketing, and Ourso
did not picket further. Ourso testified that he picketed
to let his fellow workers know what would happen if
they were involved in a safety incident. However,
Ourso made no attempt to communicate his reason to
fellow employees.
On May 9, Ourso was referred by the Union to
work for McCarty at the Dow facility. Ourso reported
for work on May 10, but was prohibited from entering
the gate by Dow security because of his May I
picketing. Because Dow stopped him at the gate,
Ourso was unable to go to work for McCarty.
We agree with the Administrative Law Judge that
Anco's foreman told the union steward, an employee
of Anco, that he had to get Ourso off the job because
of Ourso's safety complaint, and that Anco thereby
violated Section 8(a)(1) of the Act by threatening to
discharge an employee for engaging in protected
concerted activity. Accordingly, we shall adopt the
Administrative Law Judge's recommended Order with
respect to Anco.2 We further agree with the Adminis-
trative Law Judge that Ourso was discharged not
because he filed a safety complaint, but because he was
in another work area on working time without
authorization. We also agree that the evidence shows
that other employees had been discharged because
they left their work areas, and that there was no need
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
his findings.
I We shall, however, change the broad cease-and-desist order to a narrow
one. See Hickmot Foods Inc., 242 NLRB 1357 (1979).
612
ANCO INSULATIONS. INC
for using other than normal procedures for inquiring
into work jurisdictional questions. Thus, the fact that
Ourso was at the time engaged in union business
played no part in his discharge. In fact, Anco was not
aware that Ourso was checking on a possible jurisdic-
tional problem when it decided to discharge him for
leaving his work area. Accordingly, we agree with the
Administrative Law Judge, for the reasons set forth in
his Decision, that Anco lawfully discharged Ourso.
We do not, however, agree with the Administrative
Law Judge that Dow violated the Act by refusing to
permit Ourso to work for McCarty. Dow had ample
reason to keep Ourso off the site. Ourso's picketing
kept several hundred people off the job and effectively
shut down a substantial part of the project for the day.
The issue is, thus, whether Ourso's picketing was
concerted protected activity. Contrary to the Adminis-
trative Law Judge, we find for the following reasons
that Ourso's picketing was individual, as opposed to
concerted, activity, and that Dow lawfully prohibited
Ourso's further employment on the site.
Ourso began picketing on his own without prior
support by fellow workers, without approval of the
Union, without seeking to use the contractual griev-
ance procedure, and without regard to the no-strike
provision of the bargaining agreement.' Although in
certain circumstances ostensibly individual activity
may in fact be concerted activity if it directly involves
the furtherance of rights which inure to the benefit of
fellow employees, those circumstances are not present
here. Cf. Alleluia Cushion Co., Inc., 221 NLRB 999
(1975). Ourso picketed to protest his discharge, not to
protest safety matters or other working conditions. At
most, the picketing was indirectly related to safety
matters because Ourso believed that his safety com-
plaint played a part in his discharge. Even so, Ourso
made no attempt, either on his picket sign or orally, to
communicate this belief to others. Instead, he ap-
peared on the next day following his discharge with a
picket sign stating that Anco was unfair. Thus, Ourso
sought something for himself only, and his picketing
did not directly relate to matters of mutual concern to
other employees. Any indirect relationship to the
working conditions of other employees is too remote
to convert Ourso's personal protest into a concerted
protest. See Tabernacle Community Hospital & Health
Center, 233 NLRB 1425 (1977). Accordingly, we find
that Ourso's picketing was not concerted activity, was
therefore not protected by the Act, and was legal
' The Administrative Law Judge's analysis of the effect of the no-strike
provision was made in the context of the relationship between Dow and Anco
and in consideration of whether that provision removed the picketing from the
Act's protection. Although the contractor-subcontractor relationship adds
complexity to the case. it does so primarily by obscuring the fundamental
issue of whether Ourso's activity was individual rather than concerted. In this
connection, we find that Ourso's picketing in contravention of the established
ground to bar his further employment at the construc-
tion site.
In sum, we find that Ourso was lawfully discharged,
and that he picketed in personal protest of his
discharge. To find, in these circumstances, that Ourso
was engaged in concerted activity would subject an
employer and its general contractor to undue harass-
ment, with no recourse, by any ex-employee who
thought he had a colorable claim of unfair treatment,
and who decided to disrupt the business of the
employer and general contractor, no matter what the
grounds for that employee's discharge. Such a result is
unreasonable and is clearly not mandated by the Act.
Accordingly, we shall dismiss all allegations of the
complaint against all Respondents except that portion
of the complaint respecting Anco's threat to discharge
employees for filing safety complaints.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Anco Insulations, Inc., Baton Rouge, Louisiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge for
engaging in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business at the Dow facility in
Plaquemine, Louisiana, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 15, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
bargaining relationship and procedures is one of several factors showing that
Ourso was acting individually.
' In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint allega-
tions that Dow Chemical Company, Louisiana Divi-
sion, and McCarty Corporation violated the Act are
hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge employees
for engaging in concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
ANCO INSULATIONS, INC.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge: This
case was heard on March 26-28, 1979, in Baton Rouge,
Louisiana. The consolidated complaint issued on November
30, 1978, pursuant to charges filed in the captioned matters
on May 25, 1978, by Larry J. Ourso, Sr., an individual. The
complaint alleges that Respondent Dow Chemical caused
Respondent Anco to terminate Larry J. Ourso, Sr., on April
28, 1979, and that Dow caused Respondent McCarty to
refuse to employ Ourso on May 9, 1978, in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act
(Act). It is also alleged that Anco threatened to discharge
Ourso in violation of Section 8(a)(1).
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs, which have been carefully
considered, were filed on behalf of General Counsel, Dow,
Anco, and McCarty. Upon the entire record' and from my
observation of the witnesses and their demeanor, I make the
following:
Including McCarty's motion to amend its answer, which was granted at
the hearing, and General Counsel's motion to correct record, made at the
filing of his brief, which is hereby granted.
I According to testimony at the hearing, permit holders, like Ourso, are
referred to jobs after the Union has exhausted its list of members available for
work.
I Anco was admittedly a member of Master Insulators Association of New
Orleans and Baton Rouge, Inc., and McCarty was admittedly a member of
Southeastern Louisiana Insulation Contractors Association, multiemployer
associations which are signatory to a collective-bargaining agreement with the
Union.
' The collective-bargaining agreement effecting Anco, McCarty, and the
Union provides, at an. V (in part):
FINDINGS OF FACT
I. COMMERCE
Anco admitted and I find that it is an employer engaged
in commerce within the meaning of the Act.
Dow admitted and I find that it is an employer engaged in
commerce within the meaning of the Act.
McCarty admitted and I find that it is an employer
engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION
Respondents admitted and I find that International
Association of Heat and Frost Insulators and Asbestos
Workers' Local No. 53 (Union) is a labor organization as
defined in the Act.
III. THE EVIDENCE
During all times material herein Anco and McCarty were
engaged in construction wo;k at Dow's Plaquemine, Louisi-
ana, facility. Ourso was, until April 28, 1978, employed as
an insulator by Anco. Ourso was not a member of the
Union. He was referred to Anco, and later to McCarty, by
the Union as a "permit" employee.'
Both Anco and McCarty were, at times material, parties'
to a collective-bargaining agreement with the Union. That
agreement contained a "non-strike" clause and a clause
providing for the processing of grievances through arbitra-
tion.' Dow was not signatory to a collective-bargaining
agreement with the Union.
During March 1978, Ourso's work duties for Anco
involved the installation of insulation material in the E-9
exchanger area of block 68 at Dow. Ourso and his work
partner, Floyd Hidalgo, worked from scaffolds which had
been installed by another contractor. Ourso and Hidalgo
found the scaffolds unsafe and complained to the Union
Steward, Marvin Truett. Subsequently, when no repairs were
made to the scaffold, Ourso complained to his foreman,
Jerry Guillot, that the scaffold floor boards were not
fastened and that some of the handrails were missing.
However, when the scaffolding was not repaired, Ourso
lodged an additional complaint, around March 22, with B.
B. Oubre, a civil engineer. Ourso made this complaint to
Oubre at the conclusion of a safety meeting conducted by
Oubre on the jobsite. Oubre personally inspected the scaffold
in the presence of Dow Project Supervisor Lester Porrier
and Anco Foreman Guillot. Following Oubre's inspection
some repairs were made to the scaffold. Nevertheless, the
scaffold was not completely repaired and, when several days
Trade disputes or grievances shall be settled without cessation of work,
and incases where the parties to this Agreement fail to agree the matter
in dispute shall be referred to the Joint Trade Board.
There shall be no lockouts by the employers, nor any strikes or work
stoppages by the Union. In the event the Trade Board shall be unable to
resolve a dispute by majority vote, the dispute shall be submitted to
arbitration in the following manner:
. . * *
All decisions of the arbitrator shall be final and binding on both parties.
6!4
ANCO INSULATIONS, INC
passed with no further work on the scaffold, Ourso com-
plained that the scaffold remained unsafe. On March 28,
Ourso filed a written "Report of Unsafe Practice, Procedure,
Condition." Complete repairs were then made to the
scaffold.
On March 29, Jerry Guillot called Union Steward Marvin
Truett into his office. Guillot told Truett that he had gotten
a written complaint about the scaffold that Ourso had made
and that he had to get Ourso off the job. Guillot said that
Lester Porrier wanted Ourso off the job, that he did ..-t
want any troublemakers on the job.' The Union advised
against discharging Ourso.
Upon hearing that he might be discharged Ourso contact-
ed Dow's safety engineer, Robert Vaughn, and complained
that he was going to be terminated because of his safety
complaint. Vaughn checked with Lester Porrier to see if
Ourso's safety complaint was a valid one and if it had been
corrected. Vaughn testified that he instructed Porrier to
check and insure that Ourso was not let go because of his
safety complaint. Porrier reported back to Vaughn that
Ourso was not going to be terminated.
In late April Ourso and Hidalgo started using a stairway
located near furnaces, identified as KTI furnaces, when
ascending and descending to their work area on scaffolding
on vertical vessels. A few days before Ourso's discharge he
and Hidalgo noticed that insulation was apparently being
installed by another contractor inside the KTI furnaces.
Ourso mentioned this matter to steward Truett since it
involved a possible jurisdictional dispute.' Truett said that he
was going to miss work the following day and he asked
Ourso to call the Union about the furnace. Ourso contacted
the union office and was told by Edward Jacob to check out
the furnace work.'
On April 27, Ourso went into the KTI furnace and
questioned some of the employees working in the furnace.
Ourso asked if they had insulators working with them. He
checked the type of material they were using and the type of
scaffolding that had been erected in the furnace.' After a few
minutes in the furnace Ourso returned to his regular work
station and resumed work. Later, during his lunch break,
Ourso phoned his findings to Edward Jacob. The following
day Ourso told Union Steward Truett what he had found in
the furnace.
At approximately I p.m. on April 28, Ourso was called
down by Guillot and terminated. Ourso testified that Guillot
told him that he had been seen inside the furnace and that
Lester Porrier wanted him off the job.
On the Monday following his discharge Ourso picketed
gate 6 at Dow from approximately 5:50 to 9:15 a.m. Gate 6
was the entrance to the construction site where Ourso had
worked until April 28. Ourso's picket sign stated "Anco
Industrial Insulators Unfair." Ourso testified that he picket-
ed to let his fellow workers know what would happen to
' I credit Truett's testimony in this regard. Guillot did not specifically deny
Truett's account and the testimony of the Union's International representa-
tive, Edward Jacob, demonstrated that Guillot made a similar statement to
him.
' The presence of insulation material caused Ourso to believe that another
union's members might be engaging in work that should have been performed
by members of the Asbestos Workers (the Union).
' Respondents contend that the evidence does not support Ourso's
contention that he was acting pursuant to Jacob's directive when he checked
them if they were involved in a "safety incident." Anco
secured an injunction prohibiting Ourso from picketing, and
he did not picket after 9:15 Monday, May 1.
On May 9, Ourso was referred back to the Dow facility to
work for McCarty. Pursuant to that referral from the Union,
Ourso reported to Dow's gate 3 at 7:30 a.m. on May 10.
Ourso was prevented from entering the gate by Dow
security. The evidence is uncontested that Dow prevented
his entrance because of his May 1 picketing. Ourso was not
employed by McCarty pursuant to the union referral after
Dow stopped him at the gate.
IV. ANALYSIS AND CONCLUSIONS
A. The April 28 Discharge
The General Counsel contends that Ourso was discharged
by Anco at the insistence of Dow because of Ourso's
complaint concerning unsafe scaffolding. Alternately, Gen-
eral Counsel argues that Ourso's activity in questioning a
possible work jurisdiction conflict was protected concerted
activity and that his discharge for that reason would be a
violation. In support of his primary argument, the General
Counsel cited several decisions including Key City Mechani-
cal Contractors, Inc., 227 NLRB 1884 (1977); Interboro
Contractors, Inc., 157 NLRB 1295 (1966); Alleluia Cushion
Co., Inc., 221 NLRB 999 (1975); and Carbet Corporation,
191 NLRB 892 (1971), to demonstrate that the Board
recognizes that a complaint, such as Ourso's, about unsafe
working conditions constitutes protected concerted activity.
I agree. Ourso's activity in complaining about the scaffold-
ing was designed to improve the safety of the work area for
all the employees and was concerted.
The General Counsel points to statements by Anco
Foreman Guillot to Steward Truett and union representative
Edward Jacob as supporting his position that Ourso was
fired because of his unsafe complaints. As mentioned above I
credit the testimony of Truett and Jacob that Guillot told
each of them that Lester Porrier wanted Ourso off the job
because of Ourso's unsafe scaffolding complaints. Both
Truett and Jacob impressed me as candid, straightforward
witnesses. Guillot's testimony demonstrated that his recol-
lection was vague regarding the alleged threats. Guillot
refused to specifically deny the threats but indicated simply
that he did not recall those conversations.
I also agree with the General Counsel's contention that
Ourso was acting pursuant to instructions from the Union
when he entered the KTI furnace on April 27. I am
convinced that Ourso was instructed by the Union to check
out the work in the furnace to determine if it was properly
the Union's work. Ourso's comments to the employees in the
furnace demonstrate that his motive for being there was to
check the work. The testimony of Jacob, Ourso, and Truett
into the nature of the insulation work in the KTI furnaces. However, I am
convinced that Ourso was acting pursuant to Jacob's instructions. There was
no affirmative evidence offered to dispute Ourso's contention. Both Ourso and
Jacob testified that Ourso was told to check out the work, and Ourso's
comments to the employees in the furnace on April 27 demonstrates that he
was there to check into whether they were doing Asbestos Workers work.
' Apparently one indicium used to determine if the work is customarily
Asbestos Workers is the question of whether the scaffolding is erected on a
level by level basis.
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrates that Ourso was concerned about the work on
April 26 and that he was told to follow up on the matter
since Truett would be absent on the 27th. However, the
evidence reveals that Anco had no knowledge of Ourso's
assignment from the Union until at least after its initial
decision to discharge Ourso for entering the furnace.2
The incidents of April 27 present difficult problems for
the General Counsel. Ourso did not deny that he entered the
KTI furnace on April 27 without notifying anyone before-
hand. These furnaces, which were being bricked inside to a
high level, were dangerous areas. Ourso entered the furnace
during his worktime and he caused a disruption in the work
of the contractor in the furnace. Although there is a dispute
as to how close to the furnace Ourso's work area extended, it
is undisputed that the inside of the furnace was outside
Ourso's work area.
In order to prevail in its discharge allegations the General
Counsel must show that Ourso's concerted or union activi-
ties were a cause of the discharge. An employee is not
immune from discipline because of his protected activities.'
It is axiomatic that some activities by any employee, even
one engaged in union business, may properly subject the
employee to disciplinary measures. With this in mind I have
examined the record to determine if Ourso was treated in a
disparate manner in relation to other employees and, if he
was not, whether he would, as the result of his mission on
behalf of the Union, be entitled to special consideration."
The record indicates that other employees working for
various contractors on the Dow job have been discharged
because they left their work area. One of the General
Counsel's witnesses, Robert Boudreaux, admitted that he
had been discharged when he walked through another
contractor's' work area and stopped to talk with that
contractor's foreman. Even Ourso admitted that he had
heard of several instances of people being discharged for
being out of their work area. Robert Boudreaux also testified
that other employees had walked through areas of other
contractors along with him and those employees had not
been discharged. However, there was no showing that any of
those employees stopped to talk with employees of other
contractors or that they otherwise disrupted work or placed
themselves or others in danger. Therefore, I conclude that by
discharging Ourso for being out of his work area on April
27, Anco was not treating him disparately.
In determining whether Ourso was entitled to special
considerations due to his directive to check out the work, I
have examined the record for evidence of the customary
procedure for handling possible jurisdictional problems. I
have also considered whether the evidence demonstrated the
existence of a need, in this particular instance, to avoid the
'Compare with Key City Mechanical Contractors, supro.
'° E.g., M. R. d R. Trucking Company. 218 NLRB 1109 (1975).
" This case must be distinguished from Key City Mechanical Contractors,
supra. In Key City the employer was aware of employees inquiring into the
jurisdictional question. Here the evidence fails to show that Anco or Dow was
aware of Ourso's purpose in entering the furnace prior to the initial decision to
terminate Ourso.
'' Ironically the other contractor involved in Boudreaux's discharge was
Anco.
" Bechtel Power Corporation, 239 NLRB 1139 (1979). In view of my finding
regarding Ourso's discharge I find it unnecessary, and I do not reach, Anco's
contention that it would have legally discharged Ourso in any event later
during the afternoon of April 28.
standard procedure. Tommy Hussey, project superintendent
for La-Mo Refractory Company at the Dow site, testified
without rebuttal that the common practice in the area which
includes the Dow site was for stewards to work through
their superintendent and the superintendent and steward of
the other contractors with whom they have a possible
jurisdictional dispute, away from the job. By that means the
matter may be resolved without disrupting work, since that
procedure would not involve unnecessarily alerting employ-
ees to the jurisdictional question. The record does not reveal
why Ourso failed to follow this procedure. Therefore, I have
concluded that the circumstances did not justify Anco
treating Ourso differently from any employee. The evidence
failed to show a need existed for avoiding the normal
procedure. On that basis I find that Anco's April 28
discharge of Ourso was not illegal."
B. Barring Ourso From Dow's Premises
The evidence is uncontested that Ourso was barred from
entering Dow's premises on May 10, because of his May I
picketing. The evidence showed that Dow alone was
involved in preventing Ourso from entering the premises
where he was scheduled to start work for McCarty. The
complaint alleges that both Dow's action in barring Ourso
from entering the premises and McCarty's action in not
employing Ourso violated Section 8(a)(3). In addressing that
issue I shall consider first whether Ourso's picketing on May
I was concerted activity and secondly whether, if concerted,
it was protected under the Act.
I. Ourso's picketing; concerted activity or not
Ourso picketed Dow's gate 6 alone for approximately 3-%
hours on May . It is undisputed that his picketing was
effective. The evidence revealed that the construction work
at Dow was seriously affected on that day because employees
refused to cross Ourso's picket line. Ourso's picket sign
stated "Anco Industrial Insulators Unfair." Ourso testified
that he picketed because he "just wanted to let my
coworkers know what-what would-what would happen
to them if they got involved in a-safety incident."
At the time of his picketing Ourso was aware of Guillot's
March 29 threat to the Union Steward and to Union
Representative Jacob that Dow wanted Ourso off the job
because of his complaint about the unsafe scaffolding.'4
Ourso was also aware that Lester Porrier of Dow was
directly involved in his April 28 discharge.'" Following his
picketing on May , Ourso had a conversation regarding the
picketing with Anco Vice President Harold Johnson. Ourso
" As indicated above, I credit Union Steward Truett's and Jacob's
testimony regarding Guillot's threat. I also credit Ourso's testimony that
Truett told him about Guillot's threat.
" According to the uncontested testimony of Anco supervisors Bourgeois
and Guillot, after Guillot talked with Jacob (of the Union) on April 28 they
decided against discharging Ourso immediately. Allegedly, Bourgeois had
decided to discharge Ourso on other grounds a week before April 28 and it
was planned, according to Bourgeois, to let Ourso go at the end of the April
28 shift. Therefore, when Jacob resisted their decision to fire Ourso
immediately for entering the furnace, Bourgeois and Guillot decided to wait
until the end of the day and let Ourso go pursuant to their earlier plan.
However, when Lester Porrier learned of the delay in Ourso's discharge, he
616
ANCO INSULATIONS, INC
told Johnson that he thought "he had been fired at Dow
because Dow did not want him in the plant because of safety
complaints." Johnson asked Ourso what it would take to
stop his picketing. Ourso replied that he wanted to be
reinstated.
Therefore, I find the evidence fully supports, and I credit,
Ourso's assertion that he was picketing to let his fellow
workers know that in his opinion he had been fired because
he filed an unsafe condition report.'" In view of the credited
evidence which connected Dow (through Lester Porrier)
with Guillot's threat to discharge Ourso and with Ourso's
ultimate discharge, I find that the basis for his picketing was
not frivolous. 7
I have no doubt, and find as a fact, that Ourso by filing
the unsafe condition report was engaged in protected
concerted activity. The very nature of the complaint evi-
dences a desire to make the scaffolding safe for all the
employees." Moreover, the evidence demonstrates that
Ourso was acting in concert with his work partner Floyd
Hidalgo in lodging the unsafe complaint.
In Pink Moody, supra, the Board found that a driver's
refusal to drive a truck he felt was unsafe constituted
concerted activity. Pink Moody fell squarely in the line of
cases including Alleluia Cushion Co., supra; Air Surrey
Corporation, 229 NLRB 1064 (1977); and Dawson Cabinet
Company, Inc., 228 NLRB 290 (1977), holding employee
protests, including refusals to work, were concerted if the
employee's action fell within "the premise that an individu-
al's actions may be considered to be concerted in nature if
they relate to conditions of employment that are matters of
mutual concern to all the affected employees." (Air Surrey
Corporation, supra, at 1064).'9 If protests regarding unsafe
conditions are concerted, then obviously protest of a
discharge which the protesting employee reasonably be-
lieved20 stemed from his unsafe condition complaints,"
would also be concerted. Therefore, I find Ourso's picketing
constituted concerted activity.
2. Ourso's picketing; protected or not
In view of my finding above that Ourso's picketing was
concerted, I shall find it protected unless there is some basis
on which Ourso lost his protected status. Respondents
contend there are several reasons why the picketing was not
protected:
complained to Bourgeois' supervisor, who directed the immediate discharge of
Ourso. I credit Ourso's testimony that Guillot told him during his discharge
interview, "Lester Porrier said for us to get you off the job."
'' In crediting Ourso's testimony in this regard, I do so pursuant to my
inquiry into his motive for picketing. I agree with the argument advanced by
McCarty that the language on the picket sign did not indicate Ourso was
protesting that he had been discharged because of his safety complaints.
However, I do not consider his success, or lack of success, in articulating the
basis of his protest to other employees to be a necessary element in
determining whether the picketing was protected concerted activity. Of
course, Ourso's motive for picketing is a material inquiry and I make my
finding despite the picket sign's language.
" Despite my finding that Ourso's belief was not frivolous, I do not
understand such a finding to be necessary under Board precedent to a
determination that Ourso's picketing was protected concerted activity. Cf.
Blount Brothers Corp.. 230 NLRB 586, 595 (1977).
" Pink Moody. Inc., 237 NLRB 39 (1978); B d P Motor Express Inc.. 230
NLRB 653 (1977); Roadway Express, Inc.. 217 NLRB 278 (1975); Alleluia
Cushion Co.. Inc.. 221 NLRB 999 (1975).
3. The "no-strike" provision
As indicated above, both Anco and McCarty were at all
material times party to a collective-bargaining agreement
which included both a no-strike provision and an arbitration
provision." Nevertheless, I find that the unique circum-
stances of this case produced a situation where there existed
no effective no-strike agreement.
In order for a no-strike provision to be legally binding, the
contract must contain a binding arbitration clause which
provides the employees a forum for resolution of grievances
short of striking. The Supreme Court in Texile Workers
Union of America v. Lincoln Mills of Alabama.2 ' stated,
"Plainly the agreement to arbitrate grievance disputes is the
quid pro quo for an agreement not to strike."
The arbitration provisions of Anco's and McCarty's
contracts were not binding on Dow. Even if Ourso had been
successful in a grievance against Anco, it would have had no
binding effect on Dow. In view of Dow's material involve-
ment in Ourso's discharge and the power of Dow's sanctions
as evidenced by Dow's preventing McCarty from hiring
Ourso by barring him from the premises, it is clear that only
through an arbitration provision which would bind Dow as
well as Anco could Ourso have effectively remedied a
grievance over his termination. In view of the absence of
such a binding provision, I find there existed no "quid pro
quo" and, therefore, the existing no-strike provision has no
binding effect on Ourso in the instant situation.
4. The picketing; a "wildcat" strike, "stranger"
picketing, and reasonable
Respondents contend that since Ourso's picketing was not
authorized by the Union, it was an effort to circumvent the
Union's efforts to bargain as his exclusive representative,
and was unprotected." I reject this contention on substan-
tially the same basis as I rejected the "no-strike" agreement
argument. In order for Ourso's picketing to circumvent his
elected representative's efforts to engage in bargaining, there
must of necessity be a bargaining relationship between the
employer and that representative. In the instant case there
was no such relationship involving Dow. As I indicated
above, Dow was intimately connected with both Ourso's
discharge and Anco's Section 8(a)( ) threat to discharge him
over his safety complaints.
" See also M Restaurants. Incorporated. d/b/a The Moudarin, 228 NLRB
930 (1977).
: Sec Rdcw-ay Expres. Inc.. supra. at 279, where the Board found a
violation where a truckdriver was discharged for his "refusal to drive what he
hbelived to be an unsafe tractor." (Emphasis supplied.)
n I specifically reject the General Counsel's contention that Ourso was
engaged in unfair labor practice picketing. I find that his picketing was
precipated by his discharge, which was not an unfair labor labor practice.
However, on the basis of factors including Guillot's March 29 threat to
discharge Ourso because of Lester Porrier's unhappiness over Ourso's unsafe
condition complaint, which I find hereafter to be a violation of Sec. 8(aXl),
and Guillot's April 28 assertion that Lester Porrier was insisting on Ourso's
discharge, I find that Ourso had a reasonable basis for concluding that his
discharge was connected to Dow's concern over his unsafe condition
complaint.
" See fn. 2 and 3, supra.
" 353 U.S. 448, 455 (1957).
" Emporium Capwell Co. v. Western Addition Community Organization.
420 U.S. 50 (1975); T-K City Disposal. Inc., 190 NLRB 462 (1971).
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of the contention that Ourso engaged in
"stranger" picketing, counsel cited Raleigh Water Heater
Mfg. Co., Inc., 136 NLRB 76, 80 (1962). The situation in
Raleigh is to be distinguished from the question before me.
In Raleigh the Board was considering whether employees
who engaged in picketing following their legal discharge
were entitled to reinstatement rights as economic strikers.
The Board held they were not because of their discharge. In
the instant query I am not concerned with Ourso's rights to
reinstatement at Anco. I am concerned with his rights to
future employment without interference in violation of the
Act. Therefore, I find Raleigh to be inapplicable.
I also find Ourso's picketing was not unreasonable. It did
not result in a "quickie" or "intermittent" strike, slowdown,
partial strike, or sit-down strike, so as to lose its protection
under the Act. The case cited by counsel, Dobbs Houses,
Inc. v. N.L.R.B., 325 F.2d 531 (5th Cir. 1963), which
involved a walkout of restaurant waitresses during the rush
hour is clearly distinguishable from the instant situation. I
find Ourso's picketing was not unreasonable or indefensible
under applicable authority."
In view of the above and the record as a whole, I find
Ourso's picketing was protected concerted activity. Dow's
action in barring Ourso's admission to their facility for the
purpose of employment by McCarty on May 10 was,
therefore, violative of Section 8(aX)(1) of the Act and I so
find.
C. McCarty's Liability
The evidence failed to demonstrate any basis for McCar-
ty's refusal to employ Ourso other than his unavailability.
The record demonstrated that all the comments by McCar-
ty's supervision were to the effect that they could not employ
Ourso because Dow would not permit him in the plant. The
evidence failed to demonstrate that McCarty was in any
sense acting in collusion with Dow in preventing Ourso from
working. Therefore, I find that the evidence does not show
that McCarty's failure to hire Ourso on May 10 was
precipitated by motives which would constitute a violation
of the Act.
D. The Alleged 8(a)(1) Violation
As indicated above, I credit the testimony of Union
Steward Truett that on March 29 Anco Foreman Guillot
told him that he had a copy of the written complaint Ourso
had made about unsafe scaffolding. Guillot said that Lester
Porrier wanted Ourso off the job, that he did not want any
troublemakers on the job. At the time Truett was an
employee working under Guillot's supervision. I find Guil-
lot's remarks included a threat to discharge an employee
because the employee engaged in protected concerted activi-
ty in violation of Section 8(a)(l) of the Act.
2" See, for example, M Restaurants. Incorporated. 228 NLRB 930, 932
(1977).
Upon the foregoing findings of fact and upon the entire
record, I hereby make the following:
CONCLUSIONS OF LAW
I. Each of the respective Respondents, Anco Insulations,
Inc., Dow Chemical Company, Louisiana Division, and The
McCarty Corporation, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Association of Heat and Frost Insulators
and Asbestos Workers' Local 53 is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening to discharge its employee because he
engaged in protected concerted activity, Anco has engaged
in unfair labor practices within the meaning of Section
8(a)(l) of the Act.
4. By barring employee Larry J. Ourso, Sr., from its
Plaquemine, Louisiana, facility and thereby preventing him
from being employed by McCarty because he engaged in
protected concerted activities, Dow has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. Respondents Anco and Dow did not engage in unfair
labor practices by discharging Ourso on April 28, 1978.
6. Respondent McCarty did not engage in unfair labor
practices by refusing to employ Otirso on May 10, 1978.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents Anco and Dow have
engaged in unfair labor practices, I shall recommend that
they be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent Dow unlawfully prevented
the employment of Larry J. Ourso, Sr., I recommend that
Dow be ordered to immediately remove all impediments to
his employment at or outside its Plaquemine, Louisiana,
facility and to immediately notify all employers at its
Plaquemine facility of that action, and make Ourso whole
for any loss of earnings and employee benefits he may have
suffered from May 10, 1978, to the date he is offered
employment which is substantially equivalent to the employ-
ment to which he was referred at The McCarty Corporation
on May 10, 1978, by an employer at the Dow Plaquemine,
Louisiana, facility. The amount of backpay shall be comput-
ed in the manner set forth in F. W Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).2'
[Recommended Order omitted from publication.]
" See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
618