Asplundh Tree Expert Co.

National Labor Relations Board - Board Decisions

Nov 30, 2001

336 N.L.R.B. 1106 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
Asplundh Tree Expert Company and Dennis A. Brin-
son. Case 9–CA–36005
November 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On September 22, 1999, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified and set forth in full below.1
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening to lay off Dennis Brin-
son, and by discharging Brinson and Eric Crabtree, be-
cause they concertedly complained about working condi-
tions and briefly withheld their services in support of
their complaints while they were on a temporary work
assignment in Canada. The Respondent has excepted to
the judge’s finding that it is appropriate for the Board to
assert jurisdiction in this matter and to his findings that it
violated the Act. We find no merit in the exceptions.
The pertinent facts are set forth in the judge’s deci-
sion.2 In brief, they are as follows. The Respondent
provides a tree trimming service in the eastern United
States. One of its operations is based in Cincinnati,
Ohio, where it performs line clearance work for Cincin-
nati Gas & Electric Company. Its employees who are
engaged in that work are represented by IBEW Local 71.
In January 1998, the Respondent sent 20 employees,
including Brinson and Crabtree, and their equipment to
Ottawa, Canada, for about 2 weeks, to help that city
clean up after a major ice storm. While working in Can-
ada, the employees were given a $25 (U.S.) per diem to
pay for food; their hotel rooms were paid for by the Re-
spondent. On the way from Cincinnati to Ottawa, some
of the employees had problems with malfunctioning tail-
lights and heaters on their trucks. While in Canada,
some of the employees claimed that the cost of food was
higher than they expected. They also learned that, al-
though the Respondent was prepared to pay as much as
$75 a night for each two-man hotel room, their rooms
actually cost only $55 (Canadian; plus tax). Some em-
ployees wondered why they could not receive some of
the Respondent’s savings on hotel accommodations to
help defray the cost of food.

1 We shall substitute the Board’s standard language for certain por-
tions of the judge’s recommended Order and notice.
2 The Respondent relies in part on testimony that the judge either did
not discuss or did not explicitly discredit. As we discuss below, how-
ever, we find that, even under the Respondent’s view of the testimony,
the judge’s ultimate findings are correct.
A group of the employees selected Brinson to act as
their spokesman and voice their concerns about their per
diems and the condition of their trucks to their general
foreman in Ottawa, Ronald Lacy. Brinson did so early
on Saturday morning, January 17. Lacy then telephoned
Supervisor Darrell Lewis in Cincinnati and told him of
the employees’ concerns over the use of the hotel room
savings. Lewis responded that if the employees were not
going to work, they would be considered to have quit.
Lewis later spoke to Brinson and, as the judge found,
threatened him with layoff or discharge.3 After Brinson
and Lewis finished their conversation, the other employ-
ees went to work as scheduled. Lacy approached Brinson
and Crabtree and asked them what they were going to do.
The two employees testified that they replied that they
still wanted to talk about the situation; Lacy then told
them to give him their (truck) keys, which meant that he
considered them to have quit.4 Brinson and Crabtree had
to make their own arrangements for returning to Cincin-
nati. After he returned to Cincinnati, Brinson sought,
without success, to be reinstated.
1. The Respondent contends that the Board lacks juris-
diction over the unfair labor practices alleged here be-
cause the events that gave rise to this case took place in
Canada.5 The judge rejected that contention. He rea-
soned that Brinson and Crabtree were Americans living
in the United States, whose regular work was performed
3 Brinson testified that Lewis castigated the men as crybabies who
were making the Company look bad, and that he (Lewis) knew of about
20 crews that would possibly be laid off when the men returned from
Canada. Lewis testified that he told Brinson that Brinson was making
his job easier, because he had to lay off 50 employees and if Brinson
quit, that was just 1 more man Lewis didn’t have to worry about laying
off. The judge did not specifically credit either version of Lewis’
statement. Clearly, however, either version constituted an unlawful
threat to lay off any employee who joined the protest over working
conditions.
4 Lacy testified that, when Brinson and Crabtree refused to take their
trucks out, he told them that they had quit. Under either version of the
testimony, the two employees at least temporarily withheld their ser-
vices on January 17, and Lacy deemed their actions to constitute quit-
ting.
5 As the Board has recognized, the Supreme Court has ruled that the
Act does not apply abroad. Computer Sciences Raytheon, 318 NLRB
966, 968 (1995), citing EEOC v. Arabian American Oil Co. (Aramco),
499 U.S. 244 (1991); and McCullough v. Sociedad Nacional, 372 U.S.
10 (1963). Accordingly, the Board has declined to assert jurisdiction
over American citizens who were permanently employed by American
employers outside of the United States. See, e.g., Computer Sciences
Raytheon, supra.
336 NLRB No. 116
ASPLUNDH TREE EXPERT CO. 1107
in the United States for the Cincinnati branch of an
American company, and whose conduct consisted of
protesting working conditions on a brief, temporary job
in Canada. He noted that both the threat to Brinson and
the instruction to Lacy to (in effect) terminate anyone
withholding his services originated with Lewis in Cin-
cinnati, and that Brinson was denied reinstatement after
he returned to the United States. The judge further found
that the main effect of the Respondent’s actions (the loss
by Brinson and Crabtree of their jobs in the United
States) was not extraterritorial, that the Board’s assertion
of jurisdiction would not interfere with Canadian law or
affect the employment conditions of Canadian employ-
ees, and that a remedial order would have no demonstra-
ble extraterritorial effect. He therefore found it appropri-
ate for the Board to assert jurisdiction.
We agree with the judge for the reasons stated in his
decision. This case involves an employment relationship
that has been shown to be entirely within the territorial
boundaries of the United States. Brinson and Crabtree
are Americans who were employed by an American em-
ployer in the United States and who performed their
regular work in the United States. Their assignment in
Canada was both brief and temporary. While in Canada
they were supervised by an American supervisor. More-
over, the results of the Respondent’s conduct were prin-
cipally felt in the United States. Thus, the Respondent
did not simply replace Brinson and Crabtree on their
Canadian assignment, but instead, as the judge found,
effectively fired them from their jobs in the United
States.
Also, as the judge found, our assertion of jurisdiction
will not interfere with Canadian law or affect the terms
and conditions of employment of Canadian employees.6
Our Order will affect only the American operations of an
American employer. Thus, on this record, there is no
danger that our assertion of jurisdiction will lead to a
conflict between the laws of the United States and Can-
ada or otherwise interfere with foreign relations.
Finally, failure to assert jurisdiction would undermine
the Act’s policy of protecting the right of employees to
engage in concerted activity designed to affect their
terms and conditions of employment. Brinson and Crab-
tree were discharged from their jobs in the United States
for engaging in conduct that clearly would have been
protected if it had taken place in the United States. We
reject the Respondent’s contention that the employees’
actions were not protected because they were directed
solely toward affecting terms and conditions of employ-

6 The Respondent has excepted to this finding, but does not contend
that the judge’s finding is factually inaccurate.
ment in Canada.7 Although the Act does not protect
Americans who are permanently employed outside of the
United States, even by American firms,8 Americans
whose permanent employment relationships are with
American firms in the United States do not lose the pro-
tection of the Act while on temporary assignment outside
of this country, particularly where extending the Act’s
protections would not interfere with the laws of another
nation.9 As we have found, no circumstances here impli-
cate the concerns associated with extraterritorial applica-
tion of domestic law. In contrast, we think that it would
frustrate the purposes of the Act were we to decline ju-
risdiction and deny Brinson and Crabtree relief for the
Respondent’s unlawful conduct.
2. We also agree with the judge, for the reasons set
forth in his decision, that Brinson and Crabtree were en-
gaged in protected concerted activities and that the Re-
spondent violated Section 8(a)(1) by threatening Brinson
with layoff and by discharging Brinson and Crabtree for
engaging in those activities. In its exceptions, however,
the Respondent contends that the cost of the hotel rooms
was not a term or condition of employment, and there-
fore that Brinson and Crabtree were not engaged in pro-
tected activities when they attempted to negotiate with
Lacy over giving part of the savings on hotel rooms to
employees for additional meal money. The Respondent
also cites testimony from several witnesses to the effect
that Brinson accused Lacy of “pocketing” the difference
between what the Respondent had been prepared to pay
and what it actually paid for the hotel rooms, and that
Brinson attempted to persuade the other employees to
engage in a “wildcat strike.” It argues that, by engaging
in such conduct, Brinson lost the protection of the Act.
There is no merit in any of those contentions. The em-
ployees were seeking a higher per diem rate for ex-
penses. This subject is clearly a term or condition of
employment. Although the employees suggested that the
increased payment could be funded by hotel cost savings,
7 We agree with the Respondent that when Brinson and Crabtree
withheld their services on January 17, they did so only over the ques-
tion of whether the employees should receive a portion of the money
earmarked for hotel rooms.
8 Computer Sciences Raytheon, supra.
9 The Supreme Court in Aramco held that Title VII of the Civil
Rights Act of 1964, 42 U.S.C § 2000, et seq., did not apply extraterrito-
rially. 499 U.S. at 259. (That holding was overruled by statute in 1991,
Pub. L. 102–166.) The employee in Aramco, however, was an Ameri-
can permanently employed abroad by an American employer. Aramco
does not address a case in which an employee is given a transitory
assignment in another country with the clear expectation of returning to
a regular job in the United States.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
this does not make their concern (low per diem rate) any
less a term or condition of employment.10
We also reject the Respondent’s contention that the
employees lost the protection of the Act because Brinson
(allegedly) accused Lacy of “pocketing” the savings from
the hotel rooms and called for a wildcat strike. Brinson
denied making either statement.11 But even if he did
both, his conduct was still protected. An accusation that
Lacy was “pocketing” the money, made in the context of
a discussion of an employment term, would be protected
unless it was so “offensive, defamatory or opprobrious”
as to remove it from the protection of the Act.12 A
statement that is alleged to be defamatory will not lose its
protection unless it was made either with knowledge of
its falsity, or with reckless disregard for whether it was
true or false.13 There is no indication in the record that
Brinson’s assertion was characterized by either of those
conditions.
We also agree with the judge that Brinson and Crab-
tree did not lose the protection of the Act simply because
they protested to Lacy directly and not through the Union
and (allegedly) sought to persuade other employees to do
the same. As the judge found, the collective-bargaining
agreement’s coverage was limited to work on the prop-
erty of Cincinnati Gas & Electric Company, and there-
fore the Union has not been shown to be the employee’s
exclusive representative for purposes of employment on
the job in Ottawa.14 In any event, there is no evidence
that Brinson and Crabtree were attempting to circumvent
the Union, especially given that the actions triggering
their discharges took place early on a Saturday morning,
hundreds of miles from Cincinnati.15
ORDER
The National Labor Relations Board orders that the
Respondent, Asplundh Tree Expert Company, Cincin-
nati, Ohio, its officers, agents, successors, and assigns,
shall

10 According to the credited testimony, Brinson brought to Lacy’s at-
tention the employees’ concerns over truck lights and heaters in addi-
tion to their complaints regarding the savings on the hotel rooms. The
Respondent argues that Brinson and Lacy discussed only the latter issue
on January 17. Even if the Respondent were correct, however, Brinson
and Crabtree’s attempts to settle that issue were protected, as we have
discussed above.
11 The judge did not explicitly resolve the testimonial discrepancies
concerning those issues.
12 KBO, Inc., 315 NLRB 570, 570 (1994); Mediplex of Wethersfield,
320 NLRB 510, 513 (1995).
13 KBO, Inc., 315 NLRB at 570; Mediplex of Wethersfield, 320
NLRB at 513.
14 For the same reason, the contract’s no-strike clause has not been
shown to apply to the Ottawa job.
15 As the judge found, the Union later declined to act on behalf of the
discharged employees.
1. Cease and desist from
(a) Threatening employees with layoff because they
concertedly complain about working conditions.
(b) Terminating any employee for engaging in con-
certed activities protected by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Dennis A. Brinson and Eric Crabtree full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Dennis A. Brinson and Eric Crabtree whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Cincinnati, Ohio facility copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ASPLUNDH TREE EXPERT CO. 1109
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 17, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To act together for other mutual aid or protection
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees with layoff be-
cause they concertedly complain about working condi-
tions.
WE WILL NOT terminate any employee for engaging
in concerted activities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Dennis A. Brinson and Eric Crabtree full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Brinson and Crabtree whole for any
loss of earnings and other benefits resulting from their
discharges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Brinson and Crabtree, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.

ASPLUNDH TREE EXPERT COMPANY

James E. Horner, Esq., for the General Counsel.
Steven Semler, Esq., of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Cincinnati, Ohio, on June 3 and 4,
1999. Subsequent to an extension in the filing date, briefs were
filed by the General Counsel and the Respondent. The
proceeding is based on a charge filed May 29, 1998,1 by Dennis
A. Brinson, an individual. The Regional Director’s complaint
dated January 22, 1999, alleges that the Respondent, Asplundh
Tree Expert Company, of Cincinnati, Ohio, violated Section
8(a)(1) of the National Labor Relations Act by threatening em-
ployee Dennis Brinson with layoff because Brinson had com-
plained about Respondent’s wages and working conditions on
behalf of other employees and discharging employees Dennis
Brinson and Eric Crabtree because of their concerted protected
activities.
On review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the tree trimming business in the
eastern United States. It annually performs services in States
other than Ohio valued in excess of $50,000. It admits that at
all times material is and has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It contends, however, that the
Board lacks statutory jurisdiction over the acts alleged in the
complaint because they assertedly took place outside the United
States.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent maintains a branch office and a regular
group of approximately 50 crews serving the greater Cincinnati
area. Its primary customers are electric utility companies
which need their electric transmission lines cleared of tree
limbs and it has a collective-bargaining agreement with Local
Union No. 71, International Brotherhood of Electrical Workers
of Columbus, Ohio, which covers work done on behalf of the
Cincinnati Gas and Electric Company. It also does other work,
including scheduled out-of-town work in other States and
“emergency” work to assist other utilities or entities affected by
ice storms or other natural disasters. After a major ice storm hit
parts of Canada and New England in early January 1998, the
Respondent obtained contracts to perform tree cleanup work in
Canada at several separate locations.
Employees are not required to go to out of area storm work
but volunteer for such work under generally established prac-
tices which include driving straight through to the storm loca-
tion, a pay rate based on their home collective-bargaining
agreement or the storm’s locale’s rate, whichever is higher, a

1 All following dates will be in 1998 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
$25-a-day per diem food rate (or a direct expense paid agree-
ment with a customer), and provision and payment of motel
cost by the employer.
The Respondent’s storm center in Pennsylvania sent over
100 crews from various locations to Canada. General Foreman
Roland Bennett headed a crew from Cincinnati that were sent
on January 11 for 2 weeks to Quebec where they worked on
clearing power lines under an emergency contract with a utility
company, which furnished all lodging and subsistence. On
their first day in Quebec the crews engaged in a brief, 1-hour
work stoppage to clarify their pay rate but the situation was
clarified and resolved after phone calls to Cincinnati by Ben-
nett. No action was taken by the Respondent against any em-
ployees, however, some Quebec employees subsequently
communicated with employees on the Respondent’s job in
Ottawa.
The Ottawa job was bid on a dollar amount per crew hour for
generally, nonemergency city cleanup work and employee costs
were paid by the Respondent. The Company supplied 10, two
person crews under the supervision of General Foreman Ronald
Lacy and they left on Tuesday, January 13. Twenty-four em-
ployees showed up but two crews of volunteers were not ac-
cepted. Not everyone remembered all of what was said but
crews were told in advance of leaving that the work would be
in Ottawa for about 2 weeks and that the Company would give
them $25-a-day per diem for food and provide and pay for mo-
tel accommodations at company expense and they would be
driving straight through the night to Canada. Some employees
understood Supervisor Darrell Lewis to have said they would
get $75 a night for motel expenses, however, Lewis credibly
testified that he told them that the Company could afford to pay
up to $75 a day for their rooms.
Their departure was delayed until 4 p.m. when they were
told to follow Foreman Ron Lacy (no maps or other instruc-
tions were provided). The company trucks had (speed) gover-
nors and several drivers had trouble keeping up with Lacy.
Near Detroit, the heater in the truck driven by employee Eric
Crabtree stopped working. At the first fuel stop near Detroit,
Crabtree told Lacy who said to keep driving and when it be-
came daylight, he would fix it. When Crabtree again com-
plained at daylight, Lacy’s said to wait until the crew arrived in
Ottawa. There were also taillight problems with three trucks,
which Lacy did fix. At one point in Canada, Lacy stopped at a
truck stop for a 2- or 3-hour rest period before moving on to
Ottawa but employees got little rest because of the cold. Em-
ployee Ron Noble, who rode in the truck driven by Brinson,
testified that at the first stop for fuel, he asked Lacy for food
money. Lacy replied that Noble had not been working long
enough to receive any money.
On arrival in the Ottawa area several trucks became sepa-
rated from Lacy after he took an incorrect exit ramp. Brinson
called Cincinnati and they subsequently were seen by the fore-
man from another region and were escorted to their motel about
11 p.m., 31 hours after their departure. Employee Shane Duff
recalled that by the time they arrived at the hotel, it was below
zero, the window was fogged up, and they had no heat. As a
result of the troubled trip the men began complaining among
themselves about their situation.
After arriving, some employees learned that instead of being
given $75 per night for the hotel, that Lacy paid for the hotel
for everyone, at a cost below the $75 per night they had been
told was available. Some employees grumbling that they could
use the difference in the cost of the hotel to help them pay for
the high cost of Canadian food. Brinson said, “[W]e was all
standing in the hallway where our rooms were at, everybody
was complaining about things and they was all wanting to go
down and talk to Ron. I told them, ‘well, we’d be better off if
we just had one person to do all the talking, instead of every-
body going down there and hounding him on it,’ and they more
or less agreed to appoint me as their spokesperson.” Duff, testi-
fied that “all the workers stood around and engineered the
agreement and had Mr. Brinson be our spokesperson” and No-
ble recalled that Brinson, “was the one that was speaking up the
most . . . and the one that was seen like he could put it best to
Mr. Lacy.”
The crews left for their first day of work (without breakfast)
at 6:30 a.m. Thursday and got back about 12 hours later when
more groups complaining occurred. Meanwhile, Shane Duff
phoned his brother who was on Foreman Gilbert’s job in Que-
bec. Brinson was put on the line and they compared situations.
Duff testified that on Friday night, the men gathered in the
hotel lobby and, “Everybody had got together with Mr. Brinson
and he was supposed to have been the spokesperson to confront
Ron Lacy.” Brinson testified that he spoke with Lacy and that
Lacy called Cincinnati and put him on the phone with Supervi-
sor Lewis. He first thought that this occurred on Friday, how-
ever, it appears from the overall record that it occurred Satur-
day morning, January 17.
Lacy testified that Brinson phoned him at his hotel room on
Saturday morning before they left for work, and that Brinson
told him that, “They got a problem, that they wanted their extra
money” referring to the difference between the room cost and
$75. Lacy claimed that he would agree to give the men the
difference in what they were told they would get (the $75) and
what Respondent actually paid for the room—if that was ap-
proved by Darrell Lewis. Then, in the motel lobby Brinson,
spoke with Lacy about several problems including truck heaters
and lights and, Duff credibly testified that Brinson said, “[W]e
can’t work without our lights and heaters being fixed.”
Lacy recalled that he phoned Lewis at about 6 a.m. Saturday
and explained to Lewis what Brinson had asked. Lewis told
Lacy that Respondent was not about to give in to Brinson’s
request and that “if they’re not going to work, they’re going
home.” Lewis testified that he instructed Lacy on the phone
not to give Crabtree and Brinson the money but, “to talk to
them and we needed to go to work. Other than that, I couldn’t
make them go out. If they quit, they quit.” Lewis also said that
he told Lacy that, “if they refuse to go to work, they would’ve
quit.” Lacy testified that Lewis told him that, “if they’re not
going to take the trucks out, that means they quit.”
While Brinson and Lacy were still in the hotel lobby, Lacy
phoned Lewis again. According to Lewis, he received the sec-
ond phone call about 15 minutes later, and Lacy told Lewis that
Brinson wanted to talk to him. Lewis said he told Brinson that,
“It didn’t make any difference to him what the rooms cost. Just
to go to work.”
ASPLUNDH TREE EXPERT CO. 1111
Brinson testified that after Lacy telephoned Lewis, Lacy
handed him the phone and Lewis did all the talking telling
Brinson that “we was acting like a bunch of little whiny cry
babies, and was making the Company look bad and that [h]e
was tired of people telling him where he was going to work.’
Lewis then said that when the men got home from Canada, he
knew of 20 crews that was possibly going to get laid off.”
Lewis testified that he told Brinson in that phone call, “I made
the remark that he [Brinson] was basically making my job eas-
ier, cause I’m looking to lay off 50 guys. And if he quit, then
that’s just another guy I didn’t have to worry about laying off.”
Brinson then told other employees what Lewis said and added
that “[i]t’s up to you, you know what you guys want to do.”
The men walked around a corner of the hotel. Brinson waited
awhile but then he realized that most of the men were not re-
turning and looked “around the corner just to see that the guys
were getting on the shuttle bus to go to work” and was sur-
prised by the lack of support.
Lacy approached Brinson, who was standing with Eric Crab-
tree, Shane Duff, and Ron Noble and asked, “What are you
going to do?” Brinson replied that he would still like to talk
about it and he testified that Lacy’s only response was, “Give
me your keys” and Brinson did so. Lacy asked Crabtree,
“Well, what are you going to do?” and Crabtree replied, “I’m
with Dennis. I still think we need to have something done
about this” and Lacy replied, “[G]ive me the keys.” Duff re-
called that after the two men handed in the keys to their trucks,
Lacy told them, “Get home the best way you f–king can.” No-
ble recalled that at that point, “Me and Shane were undecided
because we said we would stick with Denny” but Brinson told
Noble and Duff to go on to work, that Brinson did not want
them to get fired too.
Brinson then became visibly upset, cried, and threw down
his thermos bottle of coffee on the floor.
Lacy testified that he asked Brinson “if he was going to go to
work, take the truck out and he told me no and I said, you know
this means you quit. And he goes, I’ve got to do what I’ve got
to do, and he give me the keys”and that he asked Crabtree:

Eric, are you going to take your truck out, and he told
me no, I’ve got to stick with Dennis.
He handed me his keys and I told them, I said, you
guys knows this means you quit.

Lacy then said there was nothing else he could do and that they
were on their own. He thereafter called Lewis who told him
that a replacement crew would be there the next day (a crew
was dispatched Saturday at noon).
That Saturday night Brinson phoned Lacy. Lacy testified
that Brinson asked if he still had my job and that he said no,
you quit and that Brinson replied, “[N]o, I just took the day
off.”2 Brinson then brought gas receipts to Lacy, and told Lacy
he was keeping the unreturned part of his per diem for motel
costs, offering to have it deducted from his final paycheck,
which deduction Lacy never made. Brinson also asked Lacy

2 On rebuttal Brinson and Crabtree both testified that Brinson did not
make any statement about “taking the day off” and I find that their
collective recall is more believable than Lacy’s as to this event.
for a payroll advance in order to get home but the request was
denied. Brinson and Crabtree made their way back to Ohio by
bus.
Noble testified that during the day Lacy told Duff and him-
self that if he found Brinson and Crabtree still in their hotel
rooms when he returned that Saturday night, he would call the
cops and have then removed from the premises. They went to
the Brinson room and warned them. The two then made ar-
rangements for a new hotel room and moved.
Discussion
Jurisdiction
The General Counsel argues that the decision to discharge
Brinson and Crabtree was made in Ohio, that their presence in
Canada was very brief and temporary and that under the cir-
cumstances, the Act should be given extraterritorial application
relying primarily on the Board’s decision in Longshoremen ILA
(Coastal Stevedoring Co.), 313 NLRB 412, 417 (1993), where
the alleged conduct was not wholly extraterritorial and Free-
port Transport, Inc., 220 NLRB 833, 834 (1975), where the
Board exercised jurisdiction based on the showing of a “suffi-
cient” American connection, where an American working out
of a Canadian truck terminal driving to and from the United
States, allegedly was discharged for his activity in Canada.
Here, Brinson and Crabtree were Americans whose regular
work was performed in the United States where they were hired
and where they reside, for the Cincinnati branch of an Ameri-
can company. They concertedly protested over the working
conditions they encountered during transit between Cincinnati
and Ottawa, Canada, and during their first few days on a tem-
porary, 2-week assignment in Canada. As found below, Brin-
son directly (and others implicitly), also were threatened with
layoff of loss of their regular jobs when they returned to the
United States on the phone by a supervisor in the United States.
The record is silent as to Crabtree’s actions after he returned
to the United States, however, Respondent’s Exhibit 1, Brin-
son’s letter to the Respondent’s president (sent February 20,
1998), included the statement that “since I’ve been home, I
have called Asplundh trying to get my job back, to no avail.”
The Respondent attempts to minimize the nature of the dis-
pute by reducing it to only a question of the motel cost in Can-
ada. Clearly, the employees, and specifically Brinson, ad-
dressed a range of working conditions both in transit and on site
in Canada with foreman Lacy. Otherwise Brinson attempted to
speak to Supervisor Lewis, but it appears that Lewis controlled
the conversation and affirmatively prevented Brinson from
communicating the group’s concerns, thus the Respondent
cannot claim that it was unaware of the extent and concerted
nature of the employees’ concerns, see Eaton Warehousing Co.,
297 NLRB 958, 962 (1990).
Otherwise, the Respondent contends that the Act has no ap-
plication to U.S. citizens working outside the territorial United
States and that the Board lacks any jurisdiction over this case,
citing EEOC v. Arabian American Coal Co., 499 U.S. 244
(1991), a decision involving Title VII of the Civil Rights Act of
1964, the jurisdictional provisions of which are essentially the
same as the NLRAs. It argues that this result rests on giving
effect to a strong “presumption against extraterritorial applica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
tions” of U.S. statutes “to protect against unintended clashes
between our laws and those of other nations, which could result
in international discord.” Paradoxically, it points out that “in
Canada the law protects the right to strike even for activity
which is unprotected under U.S. law citing McGavin Toastmas-
ter v. Ainscough, 1 S.C.R. 718 (Canada, 1975).
In Coastal Stevedoring, supra, the Board considered the Su-
preme Court’s Arabian American Oil holding and went on to
note limitations on the restrictions of the latter case as applied
by the circuit court in Dowd v. Longshoremen ILA, 975 F.2d
779 (11th Cir. 1992), where the court then determined that
several factors in the case support the assertion of jurisdiction:

(1) the NLRA is here applied, as Congress intended, to
protect persons in commerce from a secondary boycott, (2)
the conduct was intended and had the effect of creating an
unlawful secondary boycott in the United States, (3) cer-
tain significant conduct in furtherance of the secondary
boycott occurred within the geographic territory of the
United States, and (4) the fact that the Board is acting
against a domestic labor organization subject to regulation
under the NLRA.

The court concluded that the threats made by the Japanese
Unions were within the scope of the Act:

Although the Supreme Court has limited the scope of the
NLRA to avoid interference with the internal affairs of
other nations, the Act is properly applied to the conduct of
a domestic labor union which solicits a foreign union to
apply pressure overseas with the intent and result of creat-
ing a secondary boycott in the United States. Further, the
conduct charge in the Board’s petition is not wholly extra-
territorial; the letters requesting and ratifying the boycott
threatened by the Japanese Unions were sent from the
United States. Under these circumstances, nothing in the
text or intent of the NLRA compels us to allow ILA to
evade responsibility for effecting a successful secondary
boycott in violation of the NLRA.

Here, a review of the circumstances leads to a conclusion that
assertion of jurisdiction will not interfere with the laws of or
affect the employment conditions of Canadian employees.
When two or more employees jointly participate in withhold-
ing their services for the purpose of pressuring their employer
into resolving to their satisfaction grievances over their rates of
pay, or working conditions, they engage in “concerted activi-
ties” for the purpose of collective bargaining or other mutual
aid or protection” within the meaning of Section 7 of the Act,
and it is a violation of the Act for their employer to discharge,
suspend, or otherwise interfere with, restrain, or coerce them
for engaging in such activity. See San Diego County Assn., 259
NLRB 1044, 1048 (1982), and cases cited therein. The fact
that the majority of the group relented and went to work does
not alter the situation for Brinson and Crabtree who held to
their intention to get some resolution to their demands. More-
over, contrary to the Respondent’s argument on brief, Foreman
Lacy was aware that the employee demands went well beyond
the sharing of motel money and, otherwise, Supervisor Lewis
rejected Brinson’s attempt to communicate other concerns at
Respondent’s peril, see Eaton Warehousing, supra.
It appears that the decision to treat the protestors as having
quit if they do not go to the jobsite was made in Cincinnati by
Lewis and relay to the employees by Lacy. Moreover, this was
accompanied by a directly communicate threat from Lewis to
Brinson that upon their return, protestors likely would be se-
lected for layoff at their regular Cincinnati jobs. This threat
clearly was a violation of the Act and it specifically conveyed
the fact that implementation of layoff would occur at their regu-
lar job location in the United States and it was communicated
by phone from a location in the United States. Accordingly, I
conclude that the threat was unlawful, see Harper Packing Co.,
310 NLRB 468, 469 (1993), and I find that the Respondent’s
action in this respect violates Section 8(a)(1) of the Act, as
alleged.
Otherwise, however, an employer is free to hire permanent
replacements to continue operations during a strike or work
stoppage and it may lawfully refuse to reinstate strikers where
it can shown that their jobs are occupied by permanent re-
placements. An employer also may eliminate striker’s jobs for
bona fide reasons unrelated to labor relations such as the need
to adapt to changes in business conditions or to improve effi-
ciency.
It also is well established by the Supreme Court in NLRB v.
Fleetwood Trailer Co., 389 U.S. 375 (1967), and the Board in
Laidlaw Corp., 171 NLRB 1366 (1968), that economic strikers
had continued status as employees and entitlement upon re-
quest, to be returned to their former job, or a substantially
equivalent position absent proof of “legitimate and substantial
business justifications” for an employer’s refusal to reinstate
the strikers.
Here, although the Respondent had anticipated the probabil-
ity that some crews would be laid off back in Cincinnati, the
record indicated that this did not occur. Although it appears
that the Respondent had the right to ask them for their key and
to replace them since they were not willing to go to work, it
replaced Brinson and Crabtree on the temporary volunteer job
in Canada with a crew of existing employees but this did not
create a situation that shows that Brinson and Crabtree were
replaced on their regular job (which they still would have had if
they had not voluntarily taken the temporary Canadian assign-
ment).
It is clear that in accordance with Lewis’ instructions to
Lacy, Lacy asked Brinson and Crabtree for their truck keys
when Brinson responded to Foreman Lacy’s question about
what he was going to do by saying “we still needed to talk
about the situation” (their complaints). Lacy then went one
step further and consistent with Lewis’ instructions, told them
that their action constituted a “quit.”
Thereafter, Brinson attempted, as indicated in his letter, to
get his regular job back, apparently by asking at the Respon-
dent’s Cincinnati facility and by writing to the Respondents
chief official. The tenor of Brinson’s letter conveys an uncon-
ditional offer to return and I find that this letter (if not a possi-
ble showing of an earlier unconditional offer to return), trig-
gered an obligation for the Respondent to return Brinson to his
regular job. Although it is not established on this record, the
ASPLUNDH TREE EXPERT CO. 1113
same would hold true as to Crabtree if and when he made or
makes an unconditional offer to return.
The Respondent cannot unilaterally decree that these em-
ployees quit because they engaged in a protected activity and
otherwise, there is no showing Brinson and Crabtree were re-
placed by permanent replacement workers and, accordingly, its
failure to accord timely reinstatement violates the employees’
rights to reemployment and I find that the Respondent violated
Section 8(a)(1) of the Act by considering and characterizing
their joint withholding of their services in an attempt to resolve
grievances over payments and working conditions to be a
“quit” and by failing and refusing to retain or reinstate them in
their regular jobs.
It is clear that the sole motivating factor for the Respondent’s
unilateral conclusion that Brinson and Crabtree “quit” was their
concerted action in withholding their services in an attempt to
talk about resolving their complaints about working conditions.
This conclusion effected the termination of these two employ-
ees and was dictated by Supervisor Lewis in Cincinnati, im-
plemented in Canada by Foreman Lacy, and renewed and rati-
fied in the United States by the Respondent and its president
when they rejected Brinson’s attempt to return to his regular
job back in Cincinnati. The working conditions that initialed
the employees’ concerns related to travel between the United
States and Canada and actions that took place in Canada were
closely connected parts of a single event that had its origin and
conclusion in the United States. The main illegal effect of the
Respondent’s conduct was not extraterritorial and, as noted
above, it in no way interferes with or affects the employment
conditions of Canadian employees. I further find that the re-
medial order recommended here would have no demonstrated
extraterritorial effect and I conclude that in accordance with
Coastal Stevedoring, supra, the Board properly should assert
jurisdiction.
The Respondent has show that it had a legitimate right to re-
place Brinson and Crabtree on the job in Canada, however,
there is no showing that the Respondent’s Ottawa job, as con-
trasted with the Quebec power line work, was “emergency” or
“at risk” work that would negatively affect the right of employ-
ees to withhold their services and it otherwise had not shown
that it had the unilateral right to conclude that they “quit” their
jobs by withholding their services or to permanently terminate
them for their concerted activity. As noted above, it has not
shown that Brinson and Crabtree were replaced in their regular
jobs by permanent replacements.
The Respondent acknowledges that although Brinson and
Crabtree were members of the Union, for matters affecting their
employment with the Employer, the contract’s terms were lim-
ited to work on Cincinnati Gas and Electric property and the
record also shows that the Union, thereafter, declined to act on
their behalf. The Respondent otherwise fails to cite any Board
cases on this issue and I find no basis under these circum-
stances for concluding that Brinson and Crabtree forfeited the
protection of the Act by acting together rather than through the
Union.
Under all these circumstances, I conclude that Brinson and
Crabtree were terminated from their regular positions because
of their protected conduct and that the Respondent has failed to
show any persuasive, valid reasons that would legally justify its
actions. Accordingly, I find that overall record supports a con-
clusion that the Respondent has violated Section 8(a)(1) of the
Act in this regard, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By threatening employee Dennis A. Brinson with layoff
because he concertedly complained about working conditions,
the Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed them by
Section 7 of the Act, and thereby has engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act.
3. By discharging Dennis A. Brinson and Eric Crabtree be-
cause they collectively complained about working conditions
and withheld their services, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. The conduct that was the basis for these illegal actions
was part of single events that effectively originated and con-
cluded in the United States, the conduct was not extraterritorial
and did not interfere with or affect the employment conditions
of Canadian employees and it is appropriate for the Board to
assert jurisdiction.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to immediately reinstate
Dennis A. Brinson and Erik Crabtree to their former positions
or, if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, discharging if necessary all employees hired to
replace them.
It also is recommended that the Respondent be ordered to
make whole these employees for any loss of earnings they may
have suffered by reason of the Respondent’s refusal to retain or
reinstate them after their return from Canada. Backpay shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950). Interest shall be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).3 Otherwise, it is not considered necessary that a broad
order be issued.
[Recommended Order omitted from publication.]

3 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.