Bechtel Corp.

National Labor Relations Board - Board Decisions

Nov 28, 1972

200 N.L.R.B. 503 (N.L.R.B. 1972)

BECHTEL CORPORATION 503
Bechtel Corporation and James W. Daffer , Jr. Case
31-CA-2318
November 28, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
unrelated to any protected or union activities of those 18
employees.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Respondent.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
On May 25, 1972, Administrative Law Judge 1
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs and the Respondent filed an answering brief.
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
and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
I The tale of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 As the record and the briefs adequately present the positions of the
parties, Respondent's request for oral argument is hereby denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This case was
tried at Las Vegas, Nevada, on March 7, 14 through 17,
and 21 through 23, 1972. The charge was filed on March 8,
1971, by James W Daffer, Jr., an individual. The
complaint issued on December 23, 1971, alleging that
Bechtel Corporation, herein called the Respondent, violat-
ed Section 8(a)(1) and (3) of the Act by discharging 18
employees on September 10, 1970, from a power plant
construction site in South Point, Nevada The primary
issue is whether these 18 employees were terminated
because they were represented by Plumbers and Pipefitters
Local Union No. 525, Untied Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, herein called Local 525,
or whether the terminations, which occurred at the same
time as the termination of more than 300 other employees
who had engaged in an unprotected work stoppage, were
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with its principal
offices in San Francisco, California, is a general contractor
in the building and construction industry. As a general
contractor, it has built a number of power plants, including
one at South Point, Nevada, herein called the project, for
the Southern California Edison Company. During 1970,
Respondent purchased and caused to be shipped to the
project supplies and materials valued in excess of $50,000
directly from suppliers located outside of Nevada. Respon-
dent is an employer engaged in commerce within the
meaning of Sections 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 525 is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The contracts
Respondent began construction of a massive coal-fired
electric generating plant on a 2,200-acre site at the project
on June 7, 1967. The electrical output was to be 1500
megawatts, which is 20 percent more than the generating
capacity of Boulder Dam. By September 10, 1970,
Respondent employed approximately 1,350 employees in
13 separate crafts at the project. At that time, approximate-
ly 370 of those employees were plumbers, welders,
steamfitters, and pipefitters (all of whom are collectively
referred to as pipefitters) whose job it was to work on the
plumbing and pipefitting systems at the project. These
employees had been referred to the project by Local 525
and were covered by two separate contracts. The first was
a national construction agreement that Respondent,
through its membership in the National Constructors
Association, had with the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO,
herein called the United Association. The United Associa-
tion is the parent organization of all its pipefitter locals,
including Local 525. The current national construction
agreement is dated July 30, 1968, with an addendum dated
January 27, 1970. It covers all journeymen and apprentices
engaged in the installation of all plumbing and/or
pipefitting systems in Respondent's employ and provides
200 NLRB No. 80
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in part that Respondent agrees to be bound by the hiring
practices in the local area not inconsistent with the terms
of the national construction agreement; that jurisdictional
disputes are to be adjusted in accordance with the
procedure established by the National Joint Board for the
settlement of jurisdictional disputes, or its successor
agency, without any work stoppages by employees; that
wage rates shall be in accordance with wage rates
established in agreements negotiated by the local union
and the "historically recognized contractor bargaining
group"; that where the local agreement provides for a
higher overtime rate, lower hourly workday or workweek,
paid holidays or vacation or premium pay on National,
State, or other holidays, the local agreement shall prevail,
but that with respect to all other provisions of the local
agreement dealing with the terms and conditions of
employment, other than hiring, the provisions of the
national agreement shall prevail, that all questions relating
to the territorial jurisdiction of a local union shall be
decided by the United Association; and that any provision
of a local collective-bargaining agreement contrary to, or
in conflict with or contrary to the intent of the national
agreement, shall not be enforced as to employers working
under the national agreement. In addition, it provides:
"During the life of this agreement each of the signatory
parties agrees that there will be no strikes, work stoppages
or walkouts by members of the Union or by the Employer.
This no-strike, no walkout commitment is based upon the
agreement by both parties to be bound by the grievance
and arbitration provisions of this agreement...." The
national agreement goes on to elaborate a detailed
grievance procedure which culminates in binding arbitra-
tion.
The second contract is a labor agreement between the
Associated Plumbing and Airconditiomng Contractors of
Nevada, Inc., and Local 525 Respondent is not a party to
that contract which, among other things, establishes
procedures for referrals. Respondent is bound by that
contract only to the extent that it is referred to in the
national construction agreement.
2. The pipefitter strikes preceding September 10,
1970
About a week before the construction work began on
June 7, 1967, Respondent's construction manager, William
Henry, had a prejob conference with various trades,
including Local 525. At that conference he told Local 525's
then business manager, Dave McGinty, that the job would
be run under the national agreement which did not provide
for the payment of high time (premium pay for work on
temporary scaffolding or an area where there might be a
fall). About July of 1968, the job had reached a point
where such work was needed and a dispute arose as to
whether high time should be paid. Henry spoke to Francis
Ford, an International organizer for the United Associa-
tion, concerning high time and Ford sent a telegram to
McGinty stating "Please be advised that under the terms of
the national construction agreement the Bechtel Corpora-
tion is not required to pay high time or hazard pay on their
California Edison project near Bullhead City, Arizona."
McGinty read the telegram to the pipefitters on the job on
July 2, 1968, at about 11 a m. All of the pipefitters then
walked off the job. They returned to work the following
day, July 3, 1968. At the time, there were about 20
pipefitters working and all participated in the work
stoppage. High time has not been paid on the project.
On July 29, 1968, Respondent met with Zeke Cashman,
Respondent's piping superintendent, to discuss the "buddy
system" under which a pipefitter-welder would always
have a pipefitter with him. Cashman told McGinty that the
buddy system was not to be followed and that Respondent
would assign employees as it saw fit . On July 30, 1968, a
welder-pipefitter was instructed to work alone and he
refused to do so. He was discharged about 8:36 a.m. and
all of the pipefitters walked off the job. There were
approximately 30 pipefitters at that time . They all returned
to work the following day.
About a week later, some other pipefitters were terminat-
ed for refusing to work alone and again all of the
pipefitters walked off the job. Subsequently, a meeting was
held with representatives of the United Association and the
Local in which the United Association confirmed to the
Local that it was a contractor's prerogative to assign people
as it saw fit. Thereafter the buddy system was not used.
In May of 1969, certain auxiliary turbines which were
power sources for feed pumps arrived at the jobsite. Each
weighed about 45 tons. They were to be picked up by an
overhead crane and put into position. That work was
assigned to the ironworkers, but the pipefitters claimed it.
There were about 114 pipefitters on the job at the time and
they all stopped work for about 30 minutes. During that
time , the problem was called to the attention of McGinty,
who called the shop steward and told him that the work
belonged to the ironworkers. When the pipefitters were
told this, about 30 minutes after the work stoppage began,
50 out of the 114 pipefitters walked off the project while
the others went back to work. The 50 returned the
following day.
Respondent pays a so-called subsistence rate which is a
daily rate for work done in remote areas. That rate is
negotiated with the United Association for each specific
job. On August 15, 1969, the subsistence rate was increased
in the local agreement while Respondent was negotiating
with the United Association for a new rate for the project
under the terms of the national agreement When the new
local rate was not paid on August 15, 1969, all of the
pipefitters walked off the job. There were 180 pipefitters at
that time. They all returned to work the following day.
About October 1969, a certain crane had to be lifted
about 40 feet from the ground to a turbine deck The
ironworkers were assigned the work of lifting the crane.
The pipefitters also claimed that work. Someone called all
of the pipefitters to the turbine deck and they left work and
went to the turbine deck where a fight broke out.
Respondent's supervisors stopped the fight and the
pipefitters returned to work.
About a week later , Respondent assigned the removing
of certain concrete hatch covers on the turbine deck to
ironworkers. The pipefitters protested the assignment and
all 200 pipefitters who were working at the time walked off
the job. They did not return that day but came back
sometime later.
BECHTEL CORPORATION
On or about April 10, 1970, Respondent assigned the
work of installing certain piston-type air operating cylin-
ders to the millwrights. Prior to that time, Respondent's
representatives met with the pipefitters and millwrights but
no agreement could be reached as to the assignment of that
work. The pipefitters protested the assignment and walked
off the job for about 4 hours.
On April 17, 1970, the pipefitters were paid for the week
in which the 4-hour work stoppage occurred. They were
not paid for the 4 hours they had struck and because of
that all of the pipefitters walked off again . There were
about 250 pipefitters at that time. Respondent reacted to
that walkoff by discharging all 250 pipefitters and giving
them termination slips marked voluntary quit. Thereafter,
meetings between representatives of the United Associa-
tion , Local 525, and Respondent led to Respondent's
agreement to hire all of the men back. They were rehired
on April 22,1970.
Up to that time , all work, except for some minor startup
operations , was performed by a single day shift. In early
May 1970, multiple shifts were instituted.
In August of 1970, the Union took the position that
overtime should be worked only by local men and not by
travellers (travellers were members of locals of the United
Association other than Local 525 who worked through the
Local 525 hiring hall). The Union also demanded that
either all of the men work overtime or that none of them
do so. Respondent assigned overtime to some of the
pipefitters and all of the pipefitters who were assigned such
work refused to perform it.
On August 29, 1970, two pipefitters were assigned to do
certain work on the graveyard shift and they refused to do
it. All of the other pipefitters on the graveyard shift walked
off the job.
Summarizing the above findings, there were ten work
stoppages by the pipefitters from the commencement of the
job until September 10, 1970, plus a refusal by certain men
to perform overtime work. In all ten of them, all of the
pipefitters on the job engaged in the work stoppage. In one
of those ten, some of the pipefitters continued the work
stoppage even after a representative of Local 525 told them
to return to work. The General Counsel does not contend
that any of these strikes or the strike of September 10,
1970, which is discussed below, were protected under the
Act. All were clear violations of the no-strike clause
contained in the national agreement.
3. The jurisdictional dispute of September 9, the
strike of September 10, 1970, and the subsequent
manning of the job
a. The jurisdictional dispute and the strike
On September 9, 1970, Respondent was getting ready to
begin certain startup work and all the crafts were
instructed to engage in a general cleanup of the project. At
that time, it was also known that on the following day a
high level meeting was scheduled between representatives
of Respondent, the United Association, and Local 525.
' Weller testified that at the meeting Construction Manager Henry said
that the plumbers and pipefitters on the jobsite were suspended. That
testimony was not corroborated by any of the other participants at the
505
Respondent's construction manager, William Henry, met
on that day with all his superintendents on the day shift
and told them to inform their general foremen that the men
were to be given adequate time to clean up their work areas
in preparation for the startup procedures that were to take
place. He informed them that California Edison had
requested the job cleanup for safety and fire prevention
reasons, that they were to use whatever manpower and
time was needed to do the work by the end of the day shift,
and that any remaining material would be cleaned up by
the laborers. By the end of the day shift, the pipefitters had
not cleaned up their tools and equipment to the satisfac-
tion of Respondent and the laborers were instructed to roll
back welding leads and to complete the cleanup on an
overtime basis during the swing shift. The pipefitters on the
swing shift objected to the laborers cleaning up their
materials but they remained on the job as did the
graveyard shift. The following morning, September 10,
shortly after the day shift began at 7 a.m., all of the
pipefitters walked off in protest against the laborers doing
what they considered to be their work. There were
approximately 320 pipefitters on the day shift and all of
them walked off.
The regular hours for the day shift were 7 a.m. to 3 p.m.;
for the swing shift, 3 p.m. to 11 p.m.; and for the graveyard
shift, 11 p.m. to 7 a.m. However, certain startup crews and
other special project employees reported before the
beginning of the regular shifts and overtime work was
common. Twenty-five to 30 pipefitters were scheduled to
report for work on the swing shift and about 20 on the
graveyard shift on September 10, 1970.
b. The meeting between Respondent, the United
Association, and Local 525
At about 9:30 a.m. on September 10, 1970, the
participants in a high level meeting arrived at the project.
R. E. Atkinson, Respondent's corporate manager of labor
relations, and Wallace J. Barrett, Respondent's labor
relations supervisor, were there. United Association was
represented by Martin J. Ward, its assistant general
president (and subsequently its general president), and Bill
Francis, the general organizer. Richard A. Weller, Local
525's business manager, and others were also present.
When the group arrived at the project, they were told by
William Henry, Respondent's construction manager at the
site , that a strike was in progress over a jurisdictional
dispute which included the pipefitters. Weller, the repre-
sentative of the striking pipefitters, testified that the news
came to him as a shock. However, there is no testimony
that he or any other representative of the pipefitters made
any effort to have the pipefitters return to work. In spite of
the strike, the meeting went on and the participants
discussed such matters as work stoppages, sabotage, sniper
fire, and nonproduction. In general, the participants talked
about a long line of grievances at the jobsite and about
Respondent's contention that Local 525 was not properly
administering the terms of the national agreement.' The
meeting ended about noon. Barrett and Henry remained
meeting , it is not very believable that Henry would have made a decision of
that nature on his own before conferring with his two superiors , Atkinson
and Barrett, both of whom were on the scene , and the testimony set forth
(Continued)
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the job while Assistant President of the United
Association Ward and Corporate Manager of Labor
Relations of Respondent Atkinson, together with some of
the others, returned to Las Vegas
Ward and Atkinson were the principal participants in the
second meeting which took place in Las Vegas from about
3 to 5 or 5 30 p m that day. Atkinson renewed the demand
he had made in previous communications with the United
Association, that Respondent be given relief under the
national agreement for what it considered to be a grievance
condition on the job Ward agreed that Respondent's
charges were justified and he stated that he would
recommend to the United Association president that the
United Association take jurisdiction over the job He
mentioned the possibility that the United Association
might award jurisdiction to another local He also stated
that if Local 525 presented obstacles, he would recommend
to the general president that the geographical boundaries
of Local 525 be limited to the city of Las Vegas Between
4.30 and 5 p.m., Atkinson called Barrett, who had
remained on the jobsite, and asked hires whether anyone
had showed up for the swing shift which had been
scheduled to report about 3 p.m. Barrett answered that no
one had Between 6 and 6 30 p.m, Atkinson called Henry
and spoke to him while Barrett listened on the extension.
Atkinson said that there was every indication that the
United Association would be taking over jurisdiction
under the national agreement and he told Henry to
terminate all of the pipefitters on a voluntary quit basis.
Henry then called Joe Palozzi, the office manager, and told
him to get his payroll people together to start processing
checks and terminations for the pipefitters He also called
Brian McCullough, a project superintendent, and told him
to return to the project to supervise the signing of the
termination notices The office staff worked throughout the
night until the last of the termination checks (these checks
were for the amount still due after payment of the last
regular paycheck) and termination slips were completed
about 4 a in on the following morning, September 11. All
of the pipefitters on Respondent's payroll, about 370 at
that time, were terminated The termination slips were
dated September 10. 1970, showed voluntary quit as the
reason for termination, and all contained a blank space
next to the item "eligible for rehire."
About 7 am on September 11, 1970, Henry called
Weller and told him that all the pipefitters were terminat-
ed. About 10 a in that morning, Weller called Henry back
and asked whether the steward could come to the project
and pick up the checks so that they could be distributed at
the union hall Henry agreed and the great bulk of the
checks and termination slips were sent to the hall where
they were distributed to the men
c. The manning of the job after September 10,
1970
On September 15, 1970, Peter T. Schoemann, general
president of the United Association, sent the following
telegram to Weller
This is to notify Local 525 of Las Vegas, Nevada, that
under the provision of Section 2 of the United
Association constitution , Local 525 no longer has trade
or territorial jurisdiction of the Mohave Steam Plant of
Southern California Edison Company located at South
Point, Nevada , Bechtel Corporation , general contrac-
tor.
As general president of the United Association, I am
placing this construction job under my supervision and
control . This order to be effective at seven a.m.,
September 16, 1970.
This action has become necessary because of the
substantiated complaints of the Bechtel Corporation,
general contractor , and Southern California Edison
Company, owner, regarding repeated work stoppages
by Local 525 in violation of the national construction
agreement , and the proven failure of the Local 525
members on this job to perform fair day's work.
If there is any harassment by Local 525 or its members
of employees sent to this job under my direction or any
harassment of the owner , any contractors on thejob, or
any interference with their equipment or supplies, it
could lead to further disciplinary action, including the
filing of charges under 226 of the United Association
constitution.
Thereafter, the United Association assigned jurisdiction
over the job to Local 250 of the United Association in Los
Angeles, California, and the pipefitting work at the project
was done by employees referred from the Local 250 hiring
hall.
During the first week of October 1970, representatives of
Respondent , the Unions , and various public authorities
met to discuss the problem. It was agreed that 20
apprentices who had worked through Local 525 would be
returned to the job. Those apprentices could not receive
travel cards and only worked through the Local 525 hiring
hall. There was no further agreement and the parties
arranged to meet again later in San Francisco . On October
22, 1970, a second meeting was held . Ward was present for
the United Association as were officials for Local 250 and
525. J . J. O'Connell, vice president of Respondent , was also
there. At that meeting, it was agreed that 20 apprentices
from Las Vegas would be put to work immediately; that 20
additional journeymen were needed immediately and that
one-half would come from Local 250 and one-half from
Local 525 with fringe benefits for Las Vegas being paid
into the Las Vegas local; that representatives of Local 250
and 525 would work together in the future on manning the
project as required; and that there would be no prohibition
against Las Vegas men but that all pipefitters could be
referred through Local 250
Subsequently , Weller called Henry and claimed that
there was not an equal distribution of the work as far as he
was concerned and that men that he had tried to have
dispatched through Local 250 had not been accepted.
Weller followed this up with a letter to Henry dated
January 13, 1971, in which he stated in part:
According to our mutual agreement at your San
Francisco office , it was agreed that there would be no
below convincingly established that the decision with regard to the
pipefuters was in fact made later in the day I. therefore, do not credit
Weller's testimony in this regard
BECHTEL CORPORATION 507
discrimination against the rehiring of members of
Local Union 525. Since that time, there has been a
constant flow of men to the job. At the present time, we
have 29 men on the job. My latest report indicates they
are being sent to the job from all points. Men from
Utah, Idaho, Northern California, and some from the
midwest Yet, I don't seem to be included in these
calls. . I certainly hope you will use your efforts in
averting a forthcoming problem and move quickly in
seeing that our men are returned to the job in
appropriate numbers.
Within a week, Henry called Weller and told him that it
was up to Local 250 to man the job.
There is no allegation in the complaint that Respondent
or Local 250 violated the Act by the manner in which
Local 250 referred employees. In addition, there is no
evidence in the record, other than the testimony of Weller
that he believed that the Local 525 men were discriminated
against, that such discrimination in fact took place.
4. The 18 alleged discriminatees
a. The discharges and the theory of the parties
All the pipefitters on the payroll were discharged.2
Respondent did not distinguish between Local 525
members and travellers, nor was there a distinction
between day, swing, and graveyard shift employees. There
was not even a distinction between employees who were
scheduled to work and those who were on approved leave
of absence; all were fired. The General Counsel contends
that Respondent, through Henry, ordered the guards not to
allow swing and graveyard shift pipefitters on to the
project; that 13 out of the 18 alleged discrimmatees either
reported for work on the swing or graveyard shift for
September 10 or were prepared to go to work, and that
those 13 were prevented from working by the guards or
Respondent's officials 3 The General Counsel also con-
tends that the other five employees were on approved leave
of absence on September 10. In addition, it is alleged by
the General Counsel that none of the 18 employees even
participated in a work stoppage against Respondent at the
project. It is the theory of the General Counsel, as stated in
part in a bill of particulars set forth in the record, that
Respondent violated the Act where, under all the circum-
stances of the case, it discharged employees who, because
of willingness to work or leave of absence, had not
participated in the September 10 strike and who had never
participated in any prior strike. Respondent argues that all
of the pipefitters on September 10 could be properly
lumped together as unprotected strikers, and that, even if
the General Counsel's factual assertions were correct, they
would not constitute a violation of the Act.
b Respondent's instructions to the guards
Robert J. Fogerty owns and operates a security service
known as Valley Patrol. Respondent is one of Valley
Patrol's customers. The security company hires, fires, and
assigns work to its own guards. Respondent has no say in
those matters. Normally, between two and four guards are
furnished for each shift. The normal procedure is for the
guard to allow any employee in or out during an open gate
period when shifts change. However, if an employee comes
in at other than an open gate time, he is to sign in at the
guard shack. The guards have flat standing instructions
from Fogerty that they are not to take part in or make any
comment concerning a labor dispute at the project. He also
left standing instructions that they were not to prevent any
authorized persons from going in the premises. If a person
tried to enter as to whom there is a doubt, they were to
contact Respondent's office and Respondent was to make
the decision. Any major instructions or changes in
procedures that Respondent wished to communicate to the
guards were told to Fogerty and not to the guards directly,
as the guards were employees of an independent contractor
and not of Respondent.
A hearing was held before the employment security
department of the State of Nevada on November 19, 1970,
in which testimony was taken concerning the strike of
September 10, 1970. A certified copy of that transcript
shows that Henry testified concerning the September 10
strike and was asked, "When the men for the swing shift
showed up, what did the guards at the gate tell them, what
did you instruct them to tell them?" The transcript
indicates that Henry answered, "We told them that all the
pipefitters had been terminated, and their checks were in
the local." Virgil L. Johnson, a pipefitter who was present
during that hearing, testified that he heard Henry's
remarks on the stand and that the transcript was accurate.
Henry, on the other hand, averred that the transcript was
inaccurate and that in fact he testified at the unemploy-
ment insurance hearing that he gave those instructions to
the guards on September 11 and not September 10, 1970.
In explaining the error, Henry testified that there was
much shouting and confusion in the hearing room, that
there was no reporter present and that the transcript had to
be obtained from a recording device used by the hearing
officer. I credit Henry's assertion that the transcript of that
hearing was in error. The transcript quotes him as saying
that the checks were at the union hall and it is uncontra-
dicted that the checks were not asked for by the Union or
sent to the union hall until September 11. As Henry told
the guards that the pipefitters' checks were at the Local,
those instructions to the guards could not have been given
on September 10, but could only have been made after the
checks were in the Local on September 11. Indeed, on
September 10, Henry could have had no way of knowing
that Weller would ask for the checks on September 11. As
is set forth in detail below, some of the pipefitters testified
that they were told by guards that they (the guards) had
received orders not to allow the pipefitters in to work.
However, as is also set forth in detail below, there were so
many differing versions of what the guards told the
pipefitters that there is a clear implication the guards did
2 Though the termination slips referred to a voluntary quit of employees, made to guards, none of the pipefitters ever notified Respondent that they
it is clear that a strike had taken place and not a quit The terminations were were not associated with the strike and no grievances were filed over the
discharges discharges
3 Except for statements that some of the discharged employees allegedly
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have any firm policy dictated by a clear order from
Respondent Whether or not some guard did tell some
employees that the orders were to bar them from work, I
credit Henry's testimony that he did not tell the guards to
exclude the pipefitters until September 11, 1970.
Sometime between noon, when the September 10
meeting ended, and 3 p in, when the swing shift was due to
report for work, Henry, Barrett, and McCullough dis-
cussed what they should do concerning the swing shift.
They agreed that if the swing shift pipefitters did show up
for work, no action would be taken to prevent them from
working. Henry instructed McCullough to inform the
guard service, through Fogerty, that any pipefitter who
came to work was to be put to work He told McCullough
that he wanted to make it absolutely clear to the guards
that the swing shift people were to go to work if they
reported in. The decision was made because they didn't
know at that time what was going to happen with regard to
the pipefitters and it applied to both the swing and
graveyard shifts 4 McCullough then passed this informa-
tion on either to Fogerty or to Respondent's own safety
engineer, Hoppes, who was the one who usually transmit-
ted information to Fogerty. In addition, McCullough
mentioned the decision to a guard named Mills who was
on the day shift Henry, Barrett, and McCullough all
credibly denied that they informed the guards on Septem-
ber 10 that pipefitters were to be excluded. Henry did
know at about 6 p.m. on September 10 that all the
pipefitters were to be terminated and that was before the
graveyard shift was due to report. He credibly testified that
he did not tell the guards to exclude the graveyard shift
because he knew that it would take six or eight hours to
process all the checks and, under the contract, Respondent
could not terminate anyone until the checks were ready.
Henry was on the jobsite about 6:45 a.m. on September 11
and at that time he instructed the guard service that the
pipefitters were terminated and were not to be allowed on
the site unless specific approval was given by the
superintendents to allow the pipefitters to pick up their
tools or personal belongings.
c The participation of the 18 alleged discriminatees
in the September 10 strike and in prior strikes
I The leaves of absence-Ashley, Jones , Lloyd,
Steel , and Vereen
The local agreement provides that Respondent will not
grant leaves of absence in excess of 10 regular working
days unless Local 525 grants written permission. The
Respondent 's uniform practice is to grant leaves of absence
when such permission is granted . Two of the pipefitters on
the project , Lloyd Ashley and George Jones , were on such
extended leaves of absence when the strike took place on
September 10, 1970. Ashley was referred to the project by
Local 525 on June 9 and was hired on June 10, 1970. The
Union granted permission for Ashley to be on extended
leave of absence for over 10 days by letter dated September
2, 1970.5 Ashley did not testify and there is no evidence in
the record as to whether he did or did not participate in a
prior strike. It cannot be determined from the record
whether or not Ashley was one of the pipefitters who
participated in the graveyard shift strike of August 29,
1970 The General Counsel has chosen to litigate on the
theory that the alleged discriminatees were protected by
the Act because they had not participated in the September
10, 1970, or prior strikes. The General Counsel does not
contend that all the swing and graveyard shift pipefitters
were unlawfully discharged because of the alleged lockout
and presumably some of the pipefitters on those shifts were
not included in the complaint because they had participat-
ed in prior strikes. As he has adopted this theory, the
General Counsel must establish facts to substantiate it.
This he has not done with regard to Ashley and, therefore,
there is a failure of proof.
The Union granted the same permission to Jones
effective August 31, 1970, by letter dated August 28. Jones
credibly testified that he was on leave during the
September 10 strike and he did not return to the area until
September 20, when he reported to the union hall to find
that he no longer had a job. Jones also credibly testified
that he did participate in a work stoppage at the project for
about 4 hours sometime between February and April 17,
1970, and that he was docked for that strike time. He also
acknowledged that he was one of the employees who were
terminated on April 17, 1970.
Three other pipefitters, Dennis Lloyd, William Steel, and
Douglas L. Vereen, also testified that they were on leave
during the September 10, 1970, strike. Lloyd credibly
testified that on September 5, 1970, he received permission
from his foreman to take leave so that he could go archery
hunting; that he did not notify Local 525 because leave
was to be less than 10 days, that on September 10, he was
away from the project; and that he did not return until
September 12, when he went to the union hail and picked
up his check and termination slip. Lloyd also averred that
he never took part in any strike at the project. Respondent
attempted to impeach that testimony by introducing
company records that showed that Lloyd had been signed
out at I p in. on August 15, 1969, together with some 78
other employees whose badge numbers identified them as
pipefitters That was the date that the pipefitters walked off
the job over the "subsistence rate" dispute. The records
also show that many other pipefitters left the job between
about noon and 1 p.m. Lloyd acknowledged that he had
only worked part of the day on August 15, but he averred
that he left on that day at noon with his foreman's
permission to go shopping for equipment for the archery
season which was to open the following week He also
testified that he had no knowledge of a work stoppage that
day. Lloyd's assertion that he was on the job just before the
mass walkout and that he didn't have any knowledge of it
is difficult to believe and it sheds doubt on his credibility
generally Respondent's records indicate that he left with
the other pipefitters and, as I do not credit his explanation,
the inference is warranted that he participated in the strike.
Steel credibly testified that he received clearance to go
4 These findings are based on the credited testimony of Henry, Labor early and participated in the strike However, as the written leave procedure
Relations Supervisor Barrett, and Project Superintendent McCullough was used only for absences of more than 10 working days, it is reasonable to
5 Respondent argues in its brief that Ashley might have returned to work assume that Ashley was on leave on September 10
BECHTEL CORPORATION 509
on leave of absence from General Foreman Hans Dipple
on August 30 or 31, 1970; that he did not notify the Union
because leave was to be not more than 10 working days;
that he was away from the project on September 10, that
he expected to return to work on the 11th working day,
which would be September 14; and that he heard on
Saturday , September 12, that he had been fired . He also
credibly testified that he never engaged in any prior work
stoppage at the project. As Respondent points out in its
brief, there is no evidence that Dipple was an agent of
Respondent who could authorize leave for Steel, and
Respondent had no way of knowing whether Steel had
come back and joined the strike on September 10, 1970.
However , there is no evidence in the record to shed doubt
on Steel's credible assertion that he did not participate in
the September 10 or any other strike against Respondent.
Steel never informed Respondent that he did not partici-
pate in the strike nor did he ever disassociate himself from
the strike.
Pipefitter Douglas L. Vereen was injured on the job at
the project on August 19, 1970. He spent 10 days,
beginning on August 20, in the hospital and then he was
released to a doctor 's care. In his testimony at the hearing,
Vereen averred that he was able to return to work on
September 15 so that he called the union hall on September
14, at which time he heard that he was not working for
Respondent any longer . He also stated that he hadn't
heard prior to that time that there had been a walkout.
However, he acknowledged that in a previous written
statement he had said that he called the hall on September
10 and was told by the girl on the switchboard that there
was no sense in his going to the project because there was
no one working as they went off the job and the job was
down . Though he admitted making that statement, he
averred that the statement was wrong . In view of the
inconsistent statements , I am unable to credit Vereen's
testimony that he had no knowledge of the strike on
September 10, nor am I able to find that his absence from
the job on September 10 was due to his illness rather than
to his going along with the strike . Vereen also testified that
he never engaged in any prior work stoppage. However, the
Company's records indicate that on August 15, 1969, the
date of the "subsistence rate" strike , Vereen worked only
5-1/2 hours , which was the same as the other journeymen
In the absence of any explanation by Vereen , an inference
is warranted that he participated in that strike along with
the other pipefitters.
2. Dockery, Snelson, and Wilson
With regard to the remaining 13 pipefitters who were
allegedly discharged in violation of the Act, there is a great
deal of conflicting evidence concerning whether they were
ready to work on September 10 and whether they had
engaged in prior work stoppages. One group of those
pipefitters testified in substance that the guards told them
that the pipefitters were not working. That could be
interpreted as merely a statement that the pipefitters were
on strike. That group consisted of W. C. Dockery, Paul R.
Snelson, and Harvey T. Wilson. Dockery credibly testified
that he came to the guard gate to begin his swing shift
about 2:30 p.m. on September 10, 1970, and that he was
told by the guard that no plumbers or pipefitters were
working Dockery asked what was wrong and the guard
said it had something to do with the day shift. Dockery
replied that there was no point in discussing something that
neither of them knew anything about and he left the
project. Though Dockery testified that he never engaged in
a work stoppage, his testimony does not establish that he
was prevented from going to work on September 10 by the
guard. The guard told him that the pipefitters were not
working at a time when the pipefitters had walked off the
job Dockery appears to have assumed that none of the
pipefitters would work as there had been a walkoff. That
would not be an unreasonable assumption in light of the
prior 10 work stoppages.
Snelson testified in a similar vein. He reported to the
guard shack at the project at about 11 p.m. for the
graveyard shift of September 10. The guard told him that
the pipefitters were not working and that they had walked
off. In a prior statement that Snelson signed, he stated that
when he came to work, a guard told him that the pipefitters
had pulled the job and walked off that morning and that he
made no further attempt to go to work. Snelson was not
prevented from going to work by the guard, he was simply
informed that the pipefitters had struck and he left the
project.
Wilson's testimony was similar. He reported to the swing
shift between 2:30 and 3:30 on September 10 and was told
by the guard that there had been a walkoff that morning
and that there was nobody in there. He asked what the
trouble was and the guard said he didn't know. As with the
two pipefitters discussed above, Wilson was simply told
that there was a strike and he left the project. He also
testified that at that time, he saw his foreman who gave
him his termination slip and final check. I cannot credit
Wilson in this regard, however, as the evidence of many
other witnesses clearly establishes that the termination slips
were not even made up at that time.
3 Lea, Baca, Vaughan, and Brickey
Three more of the alleged discriminatees, Robert E. Lea,
Bernard T. Baca, and S. M. Vaughan, did not report for
work on September 10, 1970, after hearing about a
conversation between George Coroneos, general foreman
on the swing shift, and his superior, Fredrick (Zeke)
Cashman, Respondent's mechanical superintendent. Co-
roneos is a longstanding member of Local 525 and he was
referred to the project by that Union. On the morning of
September 10, he heard that there had been a walkout on
the day shift. At or about 1 p.m., he called Cashman on the
telephone, said that he heard there had been a walkout and
asked Cashman what he was supposed to do, whether he
should go to work or stay at home. Cashman asked if he
had checked with the Union and he answered that he had
not been able to reach them. Cashman then said that he
couldn't tell him (Coroneos) what to do, that he just didn't
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know , and that it was up to him (Coroneos ) to make that
decision . Coroneos then asked Cashman to call his home if
he found out anything ; that he had four riders; and that it
would take him about 1 hour and 15 minutes to get to
work .6 Coroneos then told the pipefitters who usually ride
with him to work about the conversation he had with
Cashman . One of those riders was Robert E. Lea. Lea had
also heard about the walkoff about 10 : 30 that morning and
he had called the Union but he couldn 't reach anyone. He
went to Coroneos ' house, where Coroneos told him that he
had called one of Respondent 's superintendents who
wouldn ' t say one way or another what they were to do.
Coroneos also said that he couldn't get in touch with the
Union. They decided that they would not go to work until
they received word from either Respondent or the Union,
and Lea did not report for work that day.
Baca was another pipefitter who had heard that morning
of the walkout. Baca knew that Lea drove to work with
General Foreman Coroneos so he called Lea to find out
what was going on. Lea told him that he would check with
Coroneos . Later, Baca called Lea again and, according to
Baca's testimony , Lea told him that Coroneos had said that
they were not to go on the job because , as far as he knew,
they didn ' t have a job any more. However, Baca acknowl-
edged that in a statement that he gave to an agent of the
Board on June 17, 1971, he had said , "Bob Lea said as far
as I know , we aren ' t going back . He said they walked off
the job. The laborers had been doing our work . Bob said
Coroneos said they weren't going down because of a labor
dispute." Baca made no attempt to explain away that
statement or to correct it. In the light of that statement, I
am unable to credit Baca's allegation that he was told by
Lea that Coroneos had told him they didn't have a job. He
was instead told in effect that they were on strike . In that
statement to the Board agent , Baca also referred to
conversations he had with two of the other alleged
discriminatees , Sam Vaughan and Carl Brickey. The
statement reads, "I talked to Sam Vaughan and Carl
Brickey. We were in a car pool that day. I talked to Carl
about 10 : 30 a.m . and to Vaughan right after lunch . I asked
him what was going on and all they knew was guys had
walked off and we weren't going back."
Vaughan acknowledged that Baca called him and told
him that they had wobbled the job. Wobbled is a term used
on the project that means strike . Vaughan testified that he
was riding to the project with Brickey and Baca and that
when he found out he couldn 't get a ride with him, he
decided not to go to work because he had a slow driving
old truck and it was too late for him to get to work. He did
report to work the following day about noon and he was
refused entrance by the guard . As noted above , the guards
were instructed to keep out the pipefitters on September
11. I am unable to credit Vaughan 's explanation for his
failure to report for work on September 10. Vaughan may
not have wanted to use his old truck for transportation and
he might have reported for work somewhat late if he had,
but under all the circumstances , I believe the inference is
warranted that he did not go to work on September 10
because of the stake . Vaughan did use his truck to get to
work on September 11 when he told the guard he came
down there to see what the setup was. His actions on the
11th were not inconsistent with the finding that he had
engaged in the strike on the 10th . That finding is also
consistent with Baca 's statement to the Board agent that
Vaughan and Brickey told him that they knew the guys
had walked off the job and they weren 't going back.
Brickey testified that he never engaged in a work
stoppage , that at 10 or 1 I a .m. on September 10 he received
a call from the umon business agent telling him that the
Union had two checks and a termination slip for him and
that sometime after 12 on that day , he went to the umon
hall and picked them up . As set forth above , the evidence is
clear that the termination checks and slips were not
available at the union hall until September 11. I find that
Brickey is mistaken in placing those incidents on Septem-
ber 10 rather than September I 1 and he has come forward
with no credible explanation for his absence from the job
on September 10. An inference that he did not report for
work on the 10th because of the strike is warranted. Such
an inference is consistent with the statement of Baca
discussed above.
As to Lea, Baca, Vaughan , and Brickey, I find that they
did not work on September 10, 1970, because of the
pipefitters strike and not because they were prevented from
working by Respondent.
4. Hall, Dawson , and McGuffey
Two of the pipefitters who were allegedly discharged in
violation of the Act , Lyle Hall and Frank Dawson , testified
that the guards prevented their going to work on
September 10. However , both of these employees gave
prior statements to an agent of the Board that put their
credibility in doubt . Hall testified that when he came to the
guard shack about 2 : 20 p.m . on September 10, he was told
by the guard that no fitters would go on the job but that he
could pick up his paycheck . Later in his testimony, he
averred that the guard told him that they were not allowing
him through and that he could not go to work. He
acknowledged , however , that in a prior affidavit he said
that the guard told him that all the pipefitters had walked
out and gone home ; that he replied that he had come to
work ; that the guard said that there was no supervision on
the job; and that the guard did not tell him either that he
could go or that he could not go to work.
Dawson testified that he went to the guard shack about
2:40 p.m. on September 10; that the guard asked him
where he was going and he replied that he was going to
work ; that the guard said that he was not and there was not
a man on the job; and that he asked the guard what
happened and the guard replied that he didn't know. In a
prior affidavit, Dawson stated that he came to the guard
shack; that the guard asked him whether he expected to go
to work and he replied he did; and that the guard said
there had been a strike , and there was not a man on the
job. He further stated that he told the guard he might as
well go home and the guard replied that they didn't have
anything to do with this. In the light of the statements
6 These findings are based on the combined testimony of Coroneos and
Cashman which to a large extent was corroboratory
BECHTEL CORPORATION 511
given by Hall and Dawson, I do not believe that the
General Counsel has established by credible evidence that
the guards prevented them from going to work Rather, it
appears that the guards told those pipefitters about the
strike and both the pipefitters and the guards assumed that
the pipefitters would not go to work
Robert A McGuffey is alleged as a discriminatee in the
complaint He did not testify and the General Counsel has
not introduced any evidence with regard to his participa-
tion in the September 10 strike except for Respondent's
records showing he signed in on that date and signed out a
few minutes later In the absence of any explanation, the
inference is warranted that he signed out because of the
strike.
5 Haralson, Guess, and Johnson
In addition to the 15 alleged discriminatees discussed
above, there are three pipefitters named in the complaint.
They are Hugh Haralson, Norman L Guess, and Virgil L.
Johnson All three testified in substance that the guard
prevented their going to work on the September 10 swing
shift and that they never participated in any work stoppage
at the project
Haralson testified that when he went to the guard shack
between 2 and 2 15 p m on September 10, the guard told
him that the pipefitters walked out, that they were all fired,
and that he could not go in. He also testified that he went
on the project to get his paycheck and he was told by
timekeeper Jim Belmos that the day shift had walked off
the job and that Respondent had fired the swing and the
graveyard shifts. The timekeeper for the pipefitters, James
W. Belmos, contradicted Haralson's testimony and specifi-
cally denied telling any pipefitter about a termination on
that date.
As noted above, Respondent's officials credibly testified
that they did not instruct the guard service to keep any
pipefitter out until September 11. Robert J Fogerty, the
owner of the guard service, credibly testified that he did
not either receive instructions from Respondent or give
instructions to his guards concerning the exclusion of the
pipefitters; that the guards had no authority to keep
pipefitters out on September 10; and that the normal
procedure would have been to allow the pipefitters in at
that time The guards who were working the graveyard
shift which began at 11 p.m on September 10, Edward E
Benton and Donald Jones, credibly testified that they had
no orders to keep pipefitters out and that they did not
prevent any pipefitters from going to work. Neither
Haralson nor any of the other pipefitters were able to name
or give an accurate description of the guard who allegedly
spoke to them At the time Haralson allegedly spoke to a
7 As noted above, the "concrete hatch cover" work stoppage took place
about a week after the October 1969 "crane" strike Respondent's records
show that a number of the pipefitters worked 5-1/2 hours on November 5,
1969, and in the absence of any other explanation being offered, t find that
that was the date of the strike The records show Haralson worked 5-1/2
hours that day He testified that on that day he told his foreman he was
leaving for anotherjob and the foreman asked him to work until after lunch
He also testified that he had no knowledge of a work stoppage that day As
he left with the strikers, I do not credit his contention that he had no
knowledge of the strike and his credibility in general is put in serious
question Even if he did have another job the following day I find that he
guard and the timekeeper, no decision had been made by
Respondent to fire the pipefitters. In view of the specific
contradiction by the timekeeper and the lack of likelihood
that the guard and the timekeeper would have mentioned a
firing at that time, I do not credit Haralson's testimony and
I find that the General Counsel has not established by
credible evidence that Haralson was prevented from
working by the guard.?
Guess testified that when he reported to the guard shack
at 2:45 p.m. on September 10, the guard stopped him and
told him that he couldn't allow him to pass through; that
there were no pipefitters working; and that he had orders
not to let the pipefitters through the gate.8
Johnson testified that when he reported for work about
2:15 p m. that day, the guard told him that they had orders
that no pipefitters were working that day, but that he could
pick up his check at the pay office. Thereafter, he called
the Union and was told that there was a labor dispute.
To some extent, the testimony of these last two alleged
discriminatees was corroborated by testimony of four
union members who had been working as foremen.
Clifford Theisen, foreman on the graveyard shift, testified
that when he reported for work at 11 p.m. on September
10, the guard told him that there was no work for fitters
and that when he wanted to pick up his paycheck,
Superintendent Glenn Goss told him that he could not
even come on to the project to pick up his personal things.
Goss testified and specifically denied that he ever kept
Theisen or any pipefitter off the project. Goss' testimony is
consistent with the general pattern of behavior of the other
supervisors and I credit it. Foreman William Coleman
testified that when he came to the project for the graveyard
shift on September 10, the guard told him that the day shift
had walked off and that his orders were to keep the swing
and graveyard shifts out. Foreman Charles R. Johnston
testified that when he went to the guard shack at 10:30
p.m. on September 10, the guard told him that all the
pipefitters were fired and that he couldn't go in. General
Foreman Harald Darrah also testified that the guard told
him at about 10:45 p.m. that the pipefitters were terminat-
ed and that if he wanted his personal belongings, the guard
would have to escort him in to get them.
After considering the testimony of Respondent's high
level supervisors, the owner of the guard service , the guards
and particularly the diverse versions of conversations with
guards given by the alleged discriminatees and the union
member foremen, I am unable to give credence to the
assertions by Guess, Johnson, and the four foremen that
they were excluded from the job by the guards. The
testimony taken as a whole convinces me that Respondent
did not instruct the guards to keep the pipefitters out on
September 10; that there was a good deal of confusion
joined in the walkout of November 5, 1969
8 Guess also testified that he never engaged in a work stoppage against
Respondent Respondent's records show that Guess worked only 5 hours on
August 15, 1969, as did many other pipefitters That was the date of the
"subsistence rate" strike Guess acknowledged working at the project that
day but he testified that he did not recall whether he worked a full shift, that
he did not recall whether there was a work stoppage, and that there were
many Fridays he didn't work a full day Guess' explanation of his absence
from the job for part of the day on August 15, 1969, is not convincing and
the inference is warranted that he did participate in the August 15, 1969,
strike
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stemming from the precipitous mass walkout, that there
were conversations between employees and guards in
which the strike was mentioned, and that the implicit or
explicit assumption in all those conversations was that no
pipefitters would work because an unresolved pipefitters
strike was still outstanding. It is difficult to believe that,
after 10 strikes in which no pipefitters were willing to work,
the alleged discriminatees were willing to work through the
strike on this occasion. There is no showing of any split of
thinking among the pipefitters or any circumstances which
would change the previous unanimity of the pipefitters.
The testimony of Guess, Johnson, and the four foremen
must be evaluated in the light of the testimony of the many
other witnesses whose testimony is set forth above. In
short, I do not believe that the guards prevented the
pipefitters from reporting for work.
6. Summary
As to all of the alleged discriminatees other than the ones
who were on leave on September 10, I find that the
General Counsel has not established that they were ready
to report to work and were prevented from doing so by the
actions of Respondent. That also applies to Vereen, who
was on sick leave prior to the strike. As to those employees,
under all the facts set forth above, an inference is
warranted that they participated in the strike when they
failed to work on September 10, 1972.9 Jones, who was on
leave on September 10, acknowledged that he had engaged
in a prior strike. As to Ashley, who was also on leave on
September 10, the General Counsel has failed to prove that
he did not participate in a prior strike. As to Lloyd, who
also was on leave, I have found that he did engage in a
prior strike. Thus, except for Steel, who did not participate
in the September 10 strike because he was on leave of
absence authorized by a foreman and who did not
participate in any prior strike, the factual underpinnings
for the General Counsel's theory have not been estab-
lished Though one may suspect that Steel might have been
reluctant to work while his fellow pipefitters were on strike,
if he had not been on leave, such a suspicion would be
based only on guesswork The fact is that he did not
engage in any strike. A legal analysis of the General
Counsel's theory as to Steel must, therefore, be made.
B. Conclusions
The strike of September 10, 1970, was in violation of the
no-strike clause of the contract and, therefore, was an
unprotected activity. It follows that the discharge of those
employees who participated in the strike did not constitute
a violation of Section 8(a)(1) or (3) of the Act. Atkinson v.
Sinclair Refining Co., 370 U.S 238, 246 (1961). However,
Steel did not participate in that strike because he was on
leave of absence at the time. Respondent urges a finding
that Steel ratified the strike conduct of other employees by
his failure to dissociate himself from the strike when he
9 It is, therefore, unnecessary to evaluate the General Counsel's assertion
that none of these employees participated in prior strikes
10 As already noted, in only one of these strikes did the Union actually
intervene in an attempt to have the employees return to work and, even in
that situation, many of the pipefitters refused to do so
ii The General Counsel in his brief cites many cases dealing with the
returned from leave of absence and that , therefore, he
could properly be treated the same as the strikers. In
Marathon Electric Mfg. Corp, 106 NLRB 1171, enfd. 223
F.2d 338 (C.A.D.C., 1955), cert . den. 350 U.S. 981 (1956),
such a ratification was found . In that case, the Board held
that certain employees who had been on leave of absence
during a strike that violated a contract shared in the strike
action and , therefore , were amenable to discharge for
breach of contract where: the employees were members of
a strong militant union ; the union was responsible for the
strike and received the complete support of the employees
who were in the plant at the time it took place ; there was
no showing of dissent by the employees on leaves of
absence, the employer sent letters to all the discharged
employees saying the participants in the strike were
discharged; and none of the employees on leave attempted
to disassociate himself from the union 's walkout or advised
the company that he was not one of those sharing in the
group strike taken by the union . The General Counsel
argues that the instant case is distinguishable on its facts
from Marathon because the Union did not call the strike
and Respondent did not write to the discharged employees
that the participants in the strike were terminated.
However, I do not believe that these distinctions are
meaningful . Though the Union did not officially call the
strike, there is no evidence that the Union took any steps to
disown it or to get the employees back to work . There is no
doubt that the pipefitters working on the project constitut-
ed a strong and militant group who , judging by their past
strike conduct , displayed an unswerving unanimity of
action . Whether or not they worked through the formal
union structure , this group had engaged in 10 prior work
stoppages where every pipefitter on the job had ceased
work to From past experience , Respondent had every
reason to believe that when the pipefitters stopped work,
none of them would return until the dispute was resolved.
Respondent did not , as in the Marathon case , send notices
to the discharged employees that all the participants in the
strike were discharged . Instead , it sent out termination slips
showing "voluntary quit." However , it is inconceivable that
Steel did not find out when he returned to the area a few
days after the September 10 strike that the discharge of the
pipefitters had been precipitated by the strike . Respondent
did not have knowledge that Steel was on leave of absence
on September 10, as he had been granted leave for not
more than 10 days and he could have returned at any time
before the 10-day limit . Steel could have informed
Respondent that he had been on leave and disassociated
himself from the strike , but he refrained from doing so.
Under the rationale adopted by the Board in Marathon, the
finding is warranted that , by keeping silent, Steel went
along with the strike and in effect ratified the strike
conduct.ii I, therefore , find that the General Counsel has
failed to establish by a preponderance of the credible
evidence that Respondent violated Section 8(a)(1) and (3)
of the Act by discharging Steel.
proposition that proof of individual wrongdoing is a prerequisite to a
finding that conduct that would otherwise have been protected activity loses
its protection However, those cases which deal with protected strikers and
protected unfair labor practice strikers are inapposite in the instant case.
The September 10 strike was not a protected activity
BECHTEL CORPORATION 513
I have found above that the General Counsel has failed
to substantiate his theory of the case relating to the
discharge of the alleged discriminatees other than Steel. As
to those employees, there is a failure of proof. However, I
believe that the General Counsel would have failed to
establish his case even if he had proved that all 18 alleged
discriminatees were prevented from working by Respon-
dent and none of the 18 had ever engaged in a stnke
against the Respondent.
As the United States Supreme Court held in N L R B. v.
Burnup and Simms, Inc., 379 U.S. 21 (1964):
... Section 8(a)(1) is violated if it is shown that
the discharged employee was at the time engaged in a
protected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity, and that the
employee was not, in fact, guilty of that misconduct.
In the instant case, the strike was not such a protected
activity. The General Counsel argues in his brief that
Section 8(a)(1) protected the 18 employees in their right to
be represented by Local 525 and in substance that their
discharge was causally connected to their representation by
that Union. However, under all the circumstances of this
case, I do not believe that the discharges were keyed to any
protected activity. Respondent demonstrated no animus
against Local 525 except to the extent that Local 525
seemed unwilling or unable to properly administer the
terms of the contract that Respondent had with the United
Association The United Association and not Local 525
was the bargaining agent for pipefitters employed by
Respondent throughout the nation. The United Associa-
tion assigned the administration of its contract with
Respondent to Local 525 to cover the work at the project,
and then when it became manifest that Local 525 could not
properly administer it, assigned that administration to
another one of its locals. The 18 employees named in the
complaint were associated with a workforce of some 350
pipefitters on the project who were unwilling to live up to
the no-strike clause in the contract. On 10 prior occasions,
the entire workforce of pipefitters at the project had
engaged in work stoppages. I believe that the identification
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
of the 18 alleged discriminatees with such a workforce was
the cause of their discharge and not their identification
with Local 525. The discharges were directed at the
unprotected conduct of the pipefitters as a group. Whether
the strikes were attributable to the Union or whether the
Union was simply unable to control them, the discharges
were not keyed to any protected union or concerted
activities but to the unprotected strikes.
In N.L.R.B v. Great Dane Trailers, Inc., 388 U.S. 26
(1967), the United States Supreme Court held that an
employer violates Section 8(a)(3) of the Act even in the
absence of proof of antiunion motivation where: "it can
reasonably be concluded that the employer's discriminato-
ry conduct was `inherently destructive' of important
employee rights...." For reasons set forth above, I
believe that the discharges were directed toward and
interfered with the unprotected strike activity of the
pipefitters as a group, even if a relative handful of those
employees did not themselves engage in that strike activity,
and that no employee rights that are protected under the
Act were adversely affected.
I find that the credible evidence does not establish that
Respondent violated the Act as alleged in the complaint,
and I shall, therefore, recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 525 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: i2
ORDER
The complaint is dismissed in its entirety.
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes