Custodis-Cottrell, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1987

283 N.L.R.B. 585 (N.L.R.B. 1987)

CUSTODIS-COTTRELL, INC.
Custodis-Cottrell, Inc. and Charles Windell Bryant.
Case 10-CA-21199
8 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN'AND STEPHENS
On 10 June 1986 Administrative -Law Judge
Hutton S. Brandon issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The, National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered, the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,I and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Il The General Counsel has excepted to some of the judge's credibility
findings. The Board 's established pohcy, is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry W411 Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In adopting the judge's decision, we note that there is no basis to war-
rant a remand in this proceeding to allow the introduction of the joint
labor/management safety agreement between Georgia Power Company
and the North Georgia Construction Trades Council. (The Respondent
was not a party to that agreement.) Initially, the judge sustained the Re-
spondent's objection to the introduction of that agreement based on rel-
evancy, but he subsequently relied on the General Counsel's offer of
proof to conclude that the agreement did not create an exception to the
no-strike provisions in the three existing collective -bargaining agreements
applicable to the Respondent 's work at the Plant Soberer site. Thus, even
though the judge did not accept the agreement into evidence , he consid-
ered its materiality on the basis of this offer of proof. Moreover, based on
the joint labor/management safety agreement's expressed intention not to
affect existing collective-bargaining agreements, it is clear that the agree-
ment does not create an exception to the no-strike provisions of the par-
ties' existing collective-bargaining agreements , which set forth clear and
unequivocal waivers of the right to strike at the Plant Scherer worksite.
2 In adopting the judge's conclusion that no exception to the no-strike
clauses of the parties ' collective-bargaining agreement has been estab-
lished, Member Johansen disavows the judge's statement that exceptions
to no-strike clauses are not to be lightly inferred. Indeed, the Supreme
Court has held that waiver of the right to strike will not be lightly inferred.
Mastro Plastics Corp. v. NLRB, 350 U.S. 270,(1956). He finds, however,
that the contractual no-strike provisions evidence a clear and unmistak-
able waiver of the right to engage in work stoppages such as the one at
issue and concludes, in agreement with the judge, that the stoppage was
unprotected.
Sharon Howard, Esq., for the General Counsel.
585
Mark Johnson and Robert Terry, Esgs (Spencer, Fane,
Britt & Browne), of Kansas City, Missouri , for Re-
spondent.
DECISION
STATEMENT OF THE CASE
HUTTON - S. BRANDON, Administrative Law Judge.
This case was tried at Forsyth, Georgia, on 25 and 26
March 1986. The charge was filed by Charles Windell
Bryant, on 9 September 1985,1 and the complaint and
notice of hearing issued on 15 January,1986 alleging that
Custodis-Cottrell, Inc. (Respondent or the Company),
violated Section 8(a)(1) of the National Labor Relations
Act, in the discharge of Bryant and 11 Other employees2
on 26 August for concertedly engaging in a work stop-
page. The primary issue presented is whether the con-
certed work stoppage was caused by abnormally danger-
ous conditions for work within the meaning of Section
502 of the Act.3
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a New Jersey corporation with an office
and place of business located at Juliette, Georgia, where
it is engaged in heavy construction. During the past cal-
endar year, Respondent purchased and received at its Ju-
liette, Georgia, location materials and supplies valued in
excess of $50,000 directly from suppliers located 'outside
the State of Georgia. The complaint alleges, Respondent
by its- answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and, (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Work of Respondent and A'pplicabl'e
Bargaining Agreements
This case requires a determination of whether abnor-
mally dangerous working conditions existed at Respond-
ent's Juliette, Georgia place of business on 26 August.
Determination of that issue requires an understanding of
Respondent's construction work and methods. The par-
ties stipulated to most of the facts involving Respond-
ent's operation. Thus, Respondent is involved as a con-
tractor in the building of natural draft cooling towers for
Georgia Power Company's Plant Scherer, a coal-fired
power generating station in Juliette, Georgia. Respond-
i All dates are in 1'985 unless otherwise indicated
2 The complaint was amended at the hearing to include ' discharged em-
ployees David Sharp , Roy Walters, Don Livingston, Jay Royal, Buddy
Barrett, D. Ramsey, Lump Phillips, Harold Morgan, Aubrey Johnson, D.
Walker, and Marty Smith.
2 See. 502 in pertinent part provides, "nor shall the quitting of labor by
an employee or employees in good faith because ofabnormally danger-
ous conditions for work at the place of employment of such employee or
employees be deemed a strike under this Act."
283 NLRB No. 88
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent completed construction of three cooling towers at
Plant Scherer in the past and on 26 August was in the
process of constructing a fourth tower , the one involved
in this proceeding . A completed cooling tower is ap-
proximately 450 to 550 feet in height and is constructed
principally of steel reinforced concrete. The principal
parts of the cooling tower are the veil (the reinforced
concrete walls of the structure that form the bulk of the
tower), the columns (large concrete pillars that support
the veil);- and, the internals (elements that cool the water
passing through the tower).
The veil ' is constructed by pouring successive concen-
tric rings of concrete one on top of the other until the
top of the veil is reached . In performing the construction
work, Respondent employs various crafts including iron-
workers, carpenters, and laborers who are members of,
or are represented by, the Iron Workers' union, the Car-
p`enters' union, and Laborers' union, respectively. Three
collective-bargaining agreements are applicable to Re-
spondent's job . The first is the International agreement
between the Carpenters , Iron Workers , and Laborers
International Unions and Respondent (Natural Draft
Cooling Tower Agreement). This agreement in section
11 provides:
In the event of any dispute, the employer agrees
that there will be no lock out and the unions agree
that there will be no stoppage or slow down of
work, nor any strike of its members, either collec-
tively, or individually, and all disputes will be set-
tied as provided in the following paragraph.
A second agreement exists between the International
Association of Bridge, Structural and Ornamental Iron
Workers, Local Union No. 387 (Local 387), and the As-
sociation of Steel Erectors and Heavy, Equipment opera-
tors and is applicable to Respondent 's Plant Scherer job.
This agreement (Local Master Agreement) includes the
following clause at article 3:
It is hereby agreed by the Union, and the Employer
that the Union will not : resort to strikes (which in-
cludes stoppages or slow downs of work ) during
the life of this agreement. Accordingly,` neither the
Union nor the employees will instigate , promote,
sponsor, engage in, honor, support, or condone any
strike.
Finally, a third agreement (Plant Scherer Project
Agreement) is binding on Georgia Power Company, its
contractors , including Respondent, and subcontractors
and the International and local unions affiliated with the
Building Construction' Trades - Council Department,
AFL-CIO. This agreement contains the following provi-
sion at article 15:
The Union agrees that so long as the local or area
agreement applicable to the central Georgia site is
'in effect, there shall be no strikes , refusals to work,
wobbles, walk" offs, slow downs, or picketing for
any purpose whatever at the central Georgia site.
All local craft unions are signatory :t0 ^ the Plant
Scherer Agreement including Local 387. All, the above-
noted agreements contain grievance machinery conclud-
ing in final and binding arbitration.
Under the Natural Draft Cooling Tower Agreement,
Respondent employs a composite work force made up of
three crafts: carpenters, laborers, and ironworkers. The
agreement allows members of each union to perform
tasks which under normal practice would be considered
within the exclusive work jurisdiction of members of, the
other unions . ,Article 9 of the same agreement provides
"high pay," a wage premiums for work performed by em-
ployees on high construction. The parties stipulated that
the construction work involved in this case is inherently
hazardous, that employees work at high elevations, and
that, as is the case in most construction industry jobs,
they are constantly exposed to the elements. They work
on a four-tier rope mesh enclosed (except -at the top
level) scaffold surrounding the inter and outer rim of the
veil. There is a waist-high outside handrail on each level
of the scaffold. The scaffold is anchored in concrete and
,supported by I-beams.
The morning shift begins at 7 a.m. when the composite
crew ascends to the scaffold by way of a wire-mesh en-
closed stairway anchored to the veil wall. The composite
crew breaks away the plywood forms from the previous
day's pour. The carpenters then shape the plywood
panels for the formation of the next set of forms utilizing
electric saws and drills, the electricity for which is sup-
plied by power cables and extension cords running up
the veil walls and around the scaffold.
In preparation for the next, pour the scaffold is raised
approximately 5 feet by a hydraulic pump through a
process which takes approximately 30 to 60 minutes.
Work continues during the raising of the scaffold with
the ironworkers finishing the installation of horizontal re-
inforcing steel (rebar) and beginning to place and tie the
vertical rebar, which will be, covered in the next day's
pour. In effect, the vertical rebar is placed a day ahead
of the pour which covers it.
Also during the jacking process, the laborers spray lu-
bricating oil on the plywood forms and, after the jacking
is completed, the carpenters complete buckling the oiled
forms into place. The ironworkers continue to install the
reinforcing steel and the laborers connect the pipes
which carry the concrete for the pour around the veil
rim.
Before the pour begins, the forms are inspected by the
field superintendent who also inspects the scaffold, to
make sure that it is properly placed and securely sup-
ported. Following this, orders for concrete are submitted
and after testing of the concrete as it is' delivered, the
concrete is pumped from the base of the veil to the level
of the pour. The laborers are responsible for performing
the pouring of the concrete and use an ,electrical tool re-
ferred to as a vibrator, which is inserted in the concrete
to eliminate air pockets. During the pour the ironwork-
ers complete the tying of horizontal steel rods and, when
installation of all steel is completed, the ironworkers. and
the carpenters distribute reinforcing steel around the
scaffold for placement during the next day's shift. In ad-
CUSTODIS-COTTRELL, INC.
dition, the crew normally cleans up the scaffold. Com-
pletion of these operations normally coincides with the
end of the shift. After the shift is completed, the employ-
ees descend from the veil. The foregoing is essentially re-
peated each day until the veil is completed. It was stipu-
lated that it is the practice in the industry not to inter-
rupt the concrete pour except in extraordinary circum-
stances.
B. The 26 August Walkoff
It is undisputed that on 26 August, Respondent em-
ployed approximately 145 employees on its project. This
figure included 15 ironworkers, 15 carpenters , and 17 la-
borers working on the scaffold on tower 4. At the time
work began at 7 a.m., the sky was overcast and chances
of rain appeared to be increasing. That rain with thun-
dershowers was moving into the central Georgia area be-
ginning in the early morning as evidenced by the testi-
mony of David Livingston , the official in charge of the
National Weather Service Station in Macon , Georgia,
and official U.S. weather radar observation records made
from the U . S. Weather Services Radar Station at Athens,
Georgia. According to Livingston 's testimony and the
radar records , the intensity of the rain and thundershow-
ers increased as the morning wore -on. However-, Living-
ston was , unable to testify that showers occurred at Juli-
ette, Georgia, during the morning of 26 August or that
thunder or lightning occurred at that location . Living-
ston testified that rain had been observed at his location,
the Macon airport south of Macon , and more than 30
miles from Juliette but no thunder or lightning.
That it did rain at the Plant Scherer site during the
morning of 26 August is not disputed . What is disputed
is the time of the rain , the intensity of the rain, and
whether any thunder or lightning was associated with
the rain . On that morning Respondent's operation was at
pour 21 on tower 4 which meant that at that point the
men working on the veil were working approximately
140 feet high. Charging Party Bryant testified that it
rained all morning on 26 August , at times harder than at
other times . He related that around 10 o'clock he heard
thunder at a distance . However, he saw no lightning.4
According to Bryant, who like most of the ironworkers
worked on the top level of the scaffold, the employees
began to talk about the bad conditions and "going
home ." The concrete pour began around 10:30 a.m. The
ironworkers ' foreman, Bobby Brock, came by and ,' based
on Bryant's uncontradicted and credible testimony, was
"cussing" about the wisdom of starting the pour . Around
11:30 a.m. when it was still raining "hard," Bryant saw
some ironworkers leaving to descend the 'stairway from
the veil . Bryant testified that he and his coworker, iron-
worker 'Howard Morgan, therefore decided ' they would
leave also, but as 'they began to do so , they were ' told by
Brock that if they were going down, they should go
back and remove , the vertical rebar that had been set in
* Respondent, in the testimony of its Field Superintendent Jack
Richey, conceded that when there is thunder and lightning, the men are
removed from the tower because then "it's just not a good place to be."
If a pour has begun, however, a few men may be left on the tower to
bulkhead the pour after which they go to the ground.
587
place but not tied. They did so and then proceeded to go
down the stairs, but not before Brock told them that if
they went down they were fired.
It is undisputed that 11 ironworkers in addition to
Bryant left the veil at approximately 11:30 a.m. and went
home. Three ironworkers, including Foreman ]Brock, -re-
mained on the veil and completed the work that day.
The carpenters and laborers also remained on the job
and completed the work. The concrete pour continued
and Respondent finished the job by drawing, workers
from other points on the project.
The 12 ironworkers who walked off the job were dis-
charged. Of those that testified in this proceeding, all
contended that the work on the veil on 26 August under
the conditions prevailing was unsafe. Specifically, Bryant
testified that it was difficult to work with wet, gloves and
with water running out of his shoes. Others complained
that there was a possibility of lightning striking the scaf-
fold, and that the scaffolding was oily and wet making it
slick and difficult for employees to move around.
Norman "Buddy" Barrett, one of the ironworkers who
walked off, testified that the rain had begun gradually
but -kept getting harder and finally before the pour start-
ed, it was a "flood." He found it necessary to drop down
to the next level of the scaffold as some of the -other
ironworkers did so that at least the floor of the scaffold
above him gave some protection from the rain. Barrett
testified that he walked out with the other' ironworkers
because he felt like it was raining too hard, that it' was
making everything slick, and that it made it difficult to
see what one was doing.
Three ironworkers in addition to Bryant, Donald Liv-
ingston, "Lump" Phillips, and Martin Smith all testified
that they had heard thunder during the morning. Thus,
Livingston related that he had heard thunder in the dis-
tance and it was "coming" about the time the concrete
trucks arrived for the ' pour. s Further, Livingston testified
that around the same time he saw lightning in the distant
north and described it as intercloud lightning rather than
cloud to ground lightning. He further testified that 20 to
30 minutes after the heavier rain started he descended to
the next lower level of the scaffold for protection from
the rain. Although he and other ironworkers who did
the same thing did not perform any work on the second
level, none were rebuked for their presence on the lower
level.
Phillips testified that he heard thunder 30 to 40 min-
utes before "the bottom fell out." However, he added
that Bryant heard it too and, as already related, Bryant
testified it occurred around 10 a.m. According to Phillips
when "the bottom fell out," Foreman Brock came by
and, referring to Field Superintendent Jack Richey, re-
marked he had gone "crazy" and ordered the concrete.
Phillips further testified without contradiction that some
of the ironworkers replied that they were not going to
work and that Brock responded saying lie could not tell
them what to do but "you'd be a damn fool to stay up
here and work." Nevertheless, as the ironworkers were
5 Records of Respondent show that the first concrete truck arrived
about 10:30 a.m.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the process of leaving, Brock met them at the stairs
and told them to- remove the vertical rebar before leav-
ing. Some of them did so and then approached the stairs
to descend. At that point Brock stated that anybody that
"hit the ground" was fired. Brock did not testify. Phillips
is credited regarding the statements attributed to Brock.
-Smith testified that he had heard thunder at a distance
that morning.- Because Smith testified it was at a time
when he was pulling concrete forms, I conclude that it
was prior to the time the jacking of the scaffold oc-
curred so that it must have been some 30 to 40 minutes
prior to the time the pour began around 10:30 a.m. '
Neil Rosser, called as a witness by the General Coun-
sel, was one of the ironworkers who did not leave the
job on 26 August. And while Rosser did not testify con-
cerning any lightning or thunder, he testified that it
began raining that morning some 20 to 30 minutes after
he started work and got gradually harder during the
morning . He related that it was raining hard prior to the
time the pour began. At that time he went down to the
second level of the scaffold. According to Rosser, be-
cause he wore prescription glasses and because the rain
was so heavy, he could not see what he was doing. He
related that if he had been told that he had to work or
go home, he would have had to leave. However, because
he said he understood that there was a provision in the
collective-bargaining agreement that once a pour, had
started he could not leave due to weather without being
fired, he decided to stay.
The consensus of the testimony of,the General Coun-
sel's witnesses was that the heavier rain when mixed
with-the oil flowing from the oiled concrete forms made
the scaffold slippery. They complained that the heavy
rain affected their ability to see what they were doing.
Although there were drainage channels or slots in the
pick boards (the scaffold floor), at least one of the wit-
nesses said that some of the slots were filled with con-
crete and water stood 'in certain areas . All the General
Counsel's witnesses testified that they felt that the weath-
er' conditions on 'the job at the time of the walkoff made
the" job unsafe. However, only Smith referred to the
danger from lightning involved in setting up 17-foot
lengths of vertical reinforcing concrete at the top of the
veil rim as the ironworkers were required to do.
Respondent's witnesses including Field Superintendent
Richey, Laborers' Foreman Tallent, and 'Carpenters'
Foreman Rodney McCant, all denied hearing any thun-
der or seeing any lightning on the morning of the
walltoff. All agree, however, that there had been rain
that morning. Richey stated there had been a moderate
shower before the jacking ` was completed at 8.59 am.
There was no more rain until about 10:30 a.m. The pour
started about 10:30 a.m. and about 10 to 20 minutes later,
there was, a "pretty good rain which did not affect visi-
bility." Tallent described the shower occurring after the
pour' started as a "small shower" while McCant de-
scribed it as a "moderate rain that did not obscure visi-
bility." On the other hand, Respondent's witness, Craig
P. Parkins, a carpenter, described the rain as a "pretty
heavy rain," but he could still see across the interior of
the- veil some 250 to 300 feet. Carpenter employee Allan
McCant likewise described the rain at the time the iron-
workers left as "a pretty good" rain. Similarly, laborers'
employee Robert Gray described the rain as a -steady
rain, while carpenters' employee Thomas Seymour, testi-
fied it was raining "pretty good" when the carpenters
left: None of Respondent's witnesses attributed any in-
crease- in risks on the job as a result of the rain or exist-
ing weather conditions at the time of the walkoff. They
encountered no visibility problems which interfered with
their work, denied the existence of any standing water
on the pick boards, and generally denied the existence of
any increased slipperiness due to - rain and excess oil on
the scaffold. In short, according to Respondent's evi-
dence, the weather conditions did not create any greater
danger of injury on the job than otherwise existed on, a
normal workday on the tower.
C. Argument of the Parties
The General Counsel argues, as the complaint alleges,
that Bryant and the other ironworkers walked off the job
because of their good faith belief that the existing work-
ing conditions on the-job at the time of the walkoff made
the job abnormally dangerous' within the meaning of Sec-
tion 502 of the Act. While conceding that the job was
inherently dangerous because of the height at which the
employees- were required to work, the weather condi-
tions presented new factors which changed the character
of the normal working conditions and made them abnor-
mally dangerous within the meaning of Section 502.
Therefore, the General Counsel asserts, because the
walkoff did not constitute a strike by virtue of the appli-
cation of Section 502, the walkoff was protected and Re-
spondent'sdischarge of Bryant and the 11 other iron-
workers interfered with- their Section 7 rights and violat-
ed Section 8(a)(1) of the Act.
Briefly stated Respondent's argument and defense is
that the working conditions of the ironworkers were not
abnormally -dangerous at the time they left work and
their walkoff, therefore, was not protected under Section
502. Accordingly, Respondent by virtue of the no-strike
clauses ' in the collective bargaining agreements was
within its, right in discharging those who walked off the
job.
D. Conclusions
Normally, a concerted work stoppage of employees to
protect their working conditions , such as a requirement
that they work in the rain, is consistent with their Sec-
tion 7 rights and is protected under the Act. See Quality
C.A. TV.., 278 NLRB 1282 (1986); McEver Engineering,
275 NLRB 921 (1985 ), _ enfd. 784 F. 2d 634 (5th Cir.
1986). But an employer does not interfere with employee
Section 7 rights under the Act by discharging them for
engaging in a strike in breach of a no-strike provision in
a collective-bargaining agreement. This is because, gener-
ally speaking, no-strike clauses are viewed as a quid pro
quo for provisions on binding arbitration of disputes be-
tween parties . Thus, if the dispute is arbitrable , it is pre-
sumed that the no-strike agreement prohibits employees
from engaging in work stoppages in furtherance of that
dispute. - Section 502 of the Act, however, precludes a
work stoppage in the face of "abnormally dangerous"
CUSTODIS-COTTRELL, INC.
working conditions from being treated as a strike or
work stoppage which would otherwise breach a no-
strike provision. See Clark Engineering p. Carpenters, 510
F.2d 1075, 1079-1080 (6th Cir. 1975). The Board has
long held that the test for determining the existence of
abnormally dangerous conditions under Section 502 is an
objective one. Thus, in Redwing Carriers, 130 NLRB
1208 (1961), enfd. as modified 325 F.2d 1011 (D.C. Cir.
1963), cert. denied 377 U.S. 905 (1964), the Board stated
(at 1209):
We are of the opinion that the term contemplates,
and is intended to insure, an objective, as opposed
to a subjective, test. What controls is,not the state
of mind of the employee or employees concerned,
but whether the actual working conditions shown
to exist by competent evidence might in the circum-
stances reasonably be considered "abnormally dan-
gerous."
Likewise, in Gateway Coal Co. v. Mine Workers, 414 U.S.
368 (1974), the Supreme Court rejected a subjective test
as the measure for determining the existence of an "ab-
normally dangerous conditions" under Section 502 stat-
ing at 386-387:
[A] union seeking to justify a contractually prohibit-
ed stoppage under Section 502 must present ascer-
tainable, objective evidence supporting its conclu-
sion that an abnormally dangerous condition for
work exists.
This objective standard or measure has consistently
been followed in Section 502 cases. See, e.g. Gibraltar
Steel Corp., 273 NLRB 1012 (1984); L E. Myers Co., 270
NLRB 1010 (1984); Goodyear' Tire & Rubber Co., 269-
NLRB 881 (1984); Richmond Tank Car Co., 264 NLRB
174 (1982); Baker Marine Corp., 258 NLRB 680,(1981);
True Drilling Co., 257 NLRB 426 (1981).
Moreover, when the work involved is inherently dan-
gerous, a finding of the existence of an "abnormally dan-
gerous" work situation may not be based on previously
existing conditions of longstanding, endured by the em-
ployees for a considerable period prior to a work stop-
page. As stated by the administrative law judge with
Board approval in Anaconda Aluminum Co., 197 NLRB
336 at 344 (1972):
Absent the emergence of new factors or circum-
stances which change the character of the danger,
work which is recognized and accepted by employ-
ees as inherently dangerous does not become "ab-
normally dangerous" merely because employee pa-
tience with prevailing conditions wears thin or their
forbearance ceases. [Citations omitted.]
And, the hazard presented by the "abnormally danger-
ous" working conditions must not be speculative. Rather,
the abnormally dangerous working conditions must put
the employees in imminent peril . Mine Workers District 6
(Consolidation Coal Co.), 217 NLRB 541, 551 (1975).
Considering the, instant case in light of the foregoing
principles, I am compelled to the conclusion that the
General Counsel has not established the existence of an
589
abnormally dangerous condition of work at the time of
the walkoff of the 12 ironworkers here.
The record herein fully depicts the general working
conditions of employees working on the veil. That it was
inherently dangerous was conceded by ' all parties. The
critical factual issue is whether the weather viewed by
objective standards changed those, working conditions
from normally inherently dangerous to abnormally dan-
gerous . The elements of weather cited by the General
Counsel's witnesses as creating the extra hazardous con-
ditions were the lightning (as indicated by the thunder)
and the rain. Temperature and wind were not claimed to
be factors.
No doubt the presence of lightning in the vicinity of
the tower would create a new and dangerous working
condition not normally encountered in the day-to-day
routine. And as Field Superintendent Richey conceded,
if lightning was observed in the vicinity, all employees
would have been removed from the tower with the ex-
ception of only a few' necessary to stop a concrete pour
if one had started. Although the General Counsel called
an electrical engineer as a witness, Dr. Paul Steffes, to
testify regarding risks entailed in working in high places
under lightning conditions, it takes no expert in light of
human experience to recognize the dangers involved.
However, while Steffes testified that lightning .was not
entirely predictable, he pointed out that distant thunder
would not indicate imminent risk.
On the basis of the record considered as a whole and
that testimony which I deem credible, objective evidence
does not establish an imminent peril from lightning at the
time of the work stoppage., Accepting the testimony of
the General Counsel 's witnesses regarding hearing thun-
der, such thunder was remote in both distance from, the
site-and time from the walkoff. The last thunder Bryant
claims to have heard was around 10 o'clock, an hour and
a half before the work stoppage, and even then he admit-
ted it was not "real close." This was the same thunder
heard by Smith who had placed it much earlier in time.
Phillips also, heard the thunder heard by Bryant. Living-
ston's testimony was somewhat contradictory on the
time he heard the thunder. At one point he put the thun-
der as ' occurring an hour after the shift began long
before the work stoppage. However, at another point in
his testimony in explaining why he left the job., he put
the thunder and lightning around the time of the pour
and related:
I could see across the horizon farther from me, like
north, I could see there even more. I could see
lightning there and I could hear thunder, and there
was more coming and the wind was blowing that
way.
Based on the U.S. Weather Service maps in evidence,
the path of the bad weather system was from the south-
west to the northeast. Thus, to the extent Livingston saw
lightning on the north horizon it was not headed in', his
direction. In view of this and because no other witness
heard thunder at any time within an hour of the time the
ironworkers left, I find Livingston's testimony on the
point to be an incredible exaggeration. I find there were
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no abnormally dangerous conditions existent at the time
of the walkoff due to lightning.6
From a consensus of the testimony of witnesses of
both the General Counsel and Respondent, one must
conclude that a more intense rain began around the time
the concrete pour started. Although the witnesses differ
in their- description of the intensity of the rain, I con-
clude that the rain was at least "drenching." Notwith-
standing the fact that a number of ironworkers sought
shelter on the second level of the scaffold, they no doubt
became thoroughly wet after the concrete pour began if
they were not already wet from the earlier, but slower,
rain that morning.' I have no doubt that some were un-
comfortable and possibly miserable because they were
wet. I am also- confident that the rain slowed, if it did
not stop altogether, their work pace and made their jobs
more difficult. As some of the witnesses noted, it was
difficult working in wet gloves and one or two noted
that rain on their prescription glasses hampered their
sight and work activity. Nevertheless, I find neither the
rain nor the wetness of the scaffold created an abnormal-
ly dangerous working condition. Uncontradicted testimo-
ny reflects that oil and water was present on the scaffold
on a daily basis, the former as a result of the spraying of
the concrete forms and the latter as a result of the fre-
quent hosing off of spilled concrete from the scaffold.
I reject that testimony of the General Counsel's wit-
nesses that the scaffold was made slick by the rain. It is
undisputed that the pick boards, the walking surface of
the scaffold, had a -roughened surface which was de-
signed to prevent slipperiness. Moreover, the pick boards
had channels in them for draining off water. Although
the channels may have been blocked in places, it is in-
conceivable that each segment of the picks all the way
around the veil were so blocked as to create a general
safety problem. There was no complaint regarding the
slipperiness of the pick boards earlier in the day and sub-
stantially before the work stoppage even though they
must have become wet from the rain earlier that morn-
ing. In addition, unrefuted employer records revealed
that the ironworkers had worked before in the rain on a
number of occasions on tower 4. The intensity of the
rain may not have been as great on such occasions, but
prior work under rain conditions demonstrates that rain
per se did not decrease significantly the safety of the
scaffold or the work.
Some of the General Counsel's witnesses suggested
that the scaffold was more unsafe in the rain in view of
raw materials and tools which cluttered the scaffold sur-
6 Dr. Steffes testified regarding a lightning "zone of protection" estab-
lished by the National Bureau of Standards (NBS). According to Dr.
Steffes, under the NBS standard, a reasonable zone of lightning protec-
tion extends in the form of a cone from the highest structure in an area
with the diameter of the cone at its base being twice the height of the
structure . The record shows that a 1000-foot tall chimney was located
about 900 to 1000 feet from tower 4 Thus, tower 4„ or portions of it,
may have been within the zone of lightning protection from the chimney
which was fully grounded even though tower 4 was approximately 150
feet tall. However, no exact measurements are reflected in the record,
and I make no specific finding on this point.
r Some of the members of the composite crew had donned rainwear
earlier. Apparently most of the ironworkers had not requested rainwear
from Respondent until after the harder rain began.
face. This too appears to have been a normal -condition.
Rosser testified without contradiction that -the scaffold
was normally cluttered and it was "normally a hazard
anyway."
Did the rain affect the visibility to the extent it ren-
dered the job abnormally dangerous? I conclude that it
did not. Those employees who stopped work and de-
scended to- the second scaffold level to escape the rain
were not reprimanded by Respondent. They thus could
avoid any hazard associated with attempting to work in
poor visibility. Moreover, and in any event, I conclude
the rain did not-constitute a significant visibility problem
even for those wearing glasses . In so concluding, I find
incredible Smith's testimony that it was raining so hard
he could not see his hand in front of his face. That testi-
mony was contradicted by another credible General
Counsel's witness, Rosser, who had no monetary interest
in the outcome of the case and was less likely to be
biased. Rosser testified that he could see across the veil,
a distance of more than 150 feet during the rain.
Finally, although not dispositive, it is nevertheless sig-
nificant that only 12 ironworkers left the job while 3
other ironworkers remained as well as the 17 laborers
and 15 carpenters. It is further noteworthy that the latter
two crafts, unlike the ironworkers, worked with electri-
cal equipment in the rain in the performance of their jobs
and, thus, conceivably encountered greater electrical
risks by working in the rain. Apparently, however, they
discerned no imminent peril and stayed on the job.
Considering all the foregoing, I find and conclude that
the working conditions of the ironworkers on 26 August
at the time of the work stoppage were not made "abnor-
mally dangerous" by the then-existent weather situation.
Nothing `had changed from their normal working condi-
tions except, perhaps, for their subjective perceptions of
danger. Thus, the application' of Section 502 does not
render the work stoppage here protected. Therefore, the
work stoppage remained unprotected, and the discharges
for participation in the work stoppage did not violate the
Act.
At the hearing the General Counsel sought to intro-
duce evidence of a joint labor/management safety agree-
ment between Georgia Power Company and the North
Georgia Building and Construction Trades Council ap-
plicable to the Plant Scherer job, and allegedly applica-
ble to contractors, including Respondent, on the project.
In the absence of a clear explanation by the General
Counsel of how the safety agreement related to the
issues in the instant case, Respondent 's objection based
on .relevance to the receipt in evidence of the agreement
was sustained. The General Counsel was, allowed to
make an offer of proof, however. In her brief, the Gener-
al'Counsel requested reconsideration of my ruling-on the
subject, and, relying on the safety agreement;, argued that
the ironworkers engaging in the work stoppage were
seeking to enforce that' agreement. She claimed that
under, the safety agreement, the ironworkers were not re-
quired to work under unsafe' conditions and concluded
that in view of the "driving rain and thunder [which]
created emergent conditions, it is unreasonable to require
CUSTODIS-COTTRELL, 'INC.
or expect employees to follow grievance complaint pro-
cedures."
While not clearly articulated, it appears that the Gen-
eral Counsel is arguing that the safety agreement created
an exception to Respondent's no-strike clauses in its
agreements with the Iron Workers Union. This would
make the safety agreement relevant to a determination of
the protected nature of the walkout and make Section
502 and the objective test thereunder inapplicable. Ac-
cordingly, to address the issue, I shall reverse my ruling
at the hearing and accept the General Counsel's offer of
proof.
Based on the offer of proof, the safety agreement pro-
vides that employees shall not be required to work under
unsafe conditions, and precludes disciplining employees
for complying with company safety procedures or Gov-
ernment rules. No evidence was presented, however, that
the employees were being asked or directed to^ breach
any company policy of Georgia Power Company or Re-
spondent or violate any specific Government rule."
Moreover, Respondent's counsel, in arguing at the hear-
ing the irrelevance of the,safety agreement, quoted with-
out objection or contradiction from the General Counsel
the following provision in the labor/management safety
agreement; "The cooperative effort of , a labor/man-
agement safety -and health program is not intended to
affect existing collective-bargaining agreements."
The General Counsel was unable to cite any authority
at the hearing and cited none in her brief to support the
no-strike exception she now claims. It is patently clear
that the, safety agreement does not expressly create an
exception to Respondent's no-strike clauses and the Gen-
eral Counsel does not argue otherwise., Instead, she ap-
parently seeks to create an implied exception which
would justify employee use of a subjective standard here
in determining the existence of dangerous working con-
ditions. Exceptions to no-strike clauses are not to be
lightly inferred. As the Supreme Court, in rejecting a
subjective measure for establishing abnormally dangerous
conditions of work for Section 502 cases, said in Gateway
Coal Co., supra at 386:
Absent the most-explicit statutory command, we are
unwilling to conclude that Congress intended the
public policy favoring arbitration and peaceful reso-
lution of labor disputes to be circumvented by so
slender a thread as subjective judgment, however
honest it may be.
9 The Plant Scherer project agreement which Respondent concedes is
binding on it and which contains one of the no-strike clauses relied on by
Respondent in its defense contains its own provision on safety at art. 14.
There the employees agreed to be bound by the "safety rules and regula-
tions as established by the Employer in accordance with the Construction
Safety Act and OSHA." There was no evidence presented in this case
reflecting or even suggesting that Respondent's operations on 26 August
breached any such safety rules or regulations. -
591
By logical extension the same strong public policy in
favor of peaceful resolution of labor disputes militates
against any implied exception of the no-strike clauses
based on the labor/management safety agreement here.
Such an inference is particularly unwarranted, when the
safety agreement specifically provides that it will not
affect existing bargaining agreements of the contractors.
In particular, it should not override an existing bargain-
ing agreement containing its own safety provision.
The fact that a dispute on, a, safety complaint may not
be immediately resolved through a grievance procedure
also does not compel the implied exception the General
Counsel seeks . If it were otherwise, all no-strike clauses
would be rendered ineffective by the subjective percep-
tion of employees regarding safety concerns, and Section
502 of the Act, insofar as it applies to work'stoppages for
abnormally dangerous working conditions would become
meaningless surplusage.
Finally, and in any event, it must be noted that the
ironworkers who walked off the job on 26 August were
not shown to be aware of a safety agreement, much less
seeking to implement its terms. Thus, there is, no factual
basis for finding that they were protected under the
theory that they were seeking to implement -the terms of
a labor/management safety agreement creating an excep-
tion to the, no-strike clauses.
Considering the foregoing, I conclude no exception to
the no-strike clauses has been established by the General
'Counsel. I find the employees who were discharged for
'walking off on 26 August were unprotected under the
Act and their discharges, therefore, did not violate the
Act.
CONCLUSIONS OF LAw
1. Respondent, Custodis-Cottrell, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent did not violate Section 8(a)(1) of the
Act in the discharge of the employees named in the com-
plaint, as amended, who engaged in the work stoppage
on 26 August 1985.
3. Respondent did not violate the Act in any other
manner set forth in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The complaint is dismissed in its entirety.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.