Daniel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1979

239 N.L.R.B. 1335 (N.L.R.B. 1979)

DANIEL. CONSTRUCTION COMPANY, INC.
Daniel Construction Company. Inc. and David M.
Mills and Glen Arnold and John L. Ramsey. Cases
17 CA 7617, 17-CA-7617-2, and 17-CA 7617 3
January 16. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND M iMBI RS Jl NKNlS
AN[) PFN Es lt
On September 23. 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter. Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge. to
modify his remedy.' and to adopt his recommended
Order,' as modified herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (I) of the Act
when it discharged three employees, a carpenter, a
laborer, and an operating engineer, for honoring a
lawful Ironworkers picket line. He reasoned that the
contractual no-strike provision ' in the project agree-
ment, to which the discriminatees' unions were signa-
tory, did not contemplate a prohibition against such
sympathy activity. We agree.
As stated at length in International Union of Oper-
iThe Administrative Law Judge inadvertently specified interest to be
paid at 7 percent; however, interest will be calculated accirding to the
"adjusted pnme rate" used by the U S. Internal Revenue Service for interest
on tax payments.
We agree with the Administrative Law Judge that the Respondent should
be ordered to mail the notice to those employees affected by its unfair labor
practices. His recommended Order requiring the mailing of the notice of all
persons employed by the Respondent at the LaCyfgne project during 1477.
however, is unnecessanl) broad Accordingly. we shall order the Respln-
dent to mail the notice to those employees on the Respondent's pasroll on
April 12. 1977. the date the Respondent committed the unfair labor prac-
tices. See In:erboro Contractors. Inc.. 157 NLRB 1295 1966).
2 We find no merit in the Respondent's exception is) the Administratlse
Law Judge's issuance of an erratum. wherebs he corrected his inadvertent
failure to state in the notice that the Respondent had been ordered to pay
the Charging Parties backpay.
The clause provided:
During the existence of this agreement. the Union shall not permit ans
strike. slow-down or any other work stoppage and there shall he nio
lock-out by the Employer: provided. however. this shall not apply to
any union signatory to this agreement which calls a strike arising iout of
the termination of the Union's local working agreement . or ans
future local working agreements entered into by the t nions and the
currently recognized contractor's bargaining representative
aling Engineer.s. Local Union 18 (Davis-McKee, Inc.J.
238 NI RB No. 58 (i978), we consider untenable our
dissenting colleague's suggestion that the Board de-
part from its well-established policy against ready in-
ference of waivers of Section 7 rights 4 by presuming
that broad no-strike language. in itself and without
more, prohibits emplo\ees. members of one union.
from honoring another union's lawful picket line.
And we reiterate that since a "strike for the purpose
of coercing an emploser into granting demands with
respect to wages. hours, and other terms and condi-
tions of emploNment is not equivalent to a require-
ment that employees cross [other unions'] picket
lines." contractual waiser of the right to honor such
picket lines will onl be found if such an intent is
embodied expresslv in the parties' agreement or
clearly evident from the relevant bargaining history.
See also W' I Canteen Service. Inc.. 238 NLRB No.
87 (1978): Garl-Hohbart Water Corporation. 210
NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975).
cert. denied 423 U.S. 925.
As found b, the Administrative Law Judge. nei-
ther indicia of waiver is present in this case. The no-
strike provision in the project agreement does not
mention picket line observance or sympathy strikes.
Nor is there any evidence that the parties who nego-
tiated the clause agreed to proscribe such activity.
Contrary to our dissenting colleague's interpretation
of the record there is no evidence that the questions
of a picket line observance or sympathy strikes were
even considered or discussed before the instant dis-
pute arose.5 Thus, although we find it unnecessary to
In In irtan, t4 HorAcr- Iniernatinal [I in..,n 4 F1 ( IO, 1-x 'al 6i /John
Hioll-. A futual I. Insur.anr-l (t rlnar)ni, 216 N L.RB 440 (19781, our dis-
,enting colleague jined in the majoirilt rolding that "ans contract which is
deemed to render lactilvit which is normall protected under the Acil un-
protected must he 'clear and unmistakable '" We are perplexed by his refus-
al to appl, this principle in cases Insolving purported waivers of the ngh[ to
engage in !nmpa.lh atcl.its
The testimons of Respondents vice president. upon which Member Pe-
nello places extensive reliance. was as follows:
Q [Respondent's counsel] Do .ou recall. during the course of the
negotiations with the sarious unions. for the L[aCygne project agree-
ment. ans dlscussion with those unions about the no strike agreement'
A Yes
Q What was the question that came up?
A Well. we apparentis had, being the maJorits of our work being
open shop. we had a reputation in the area as an open shop contracltor
and thes were o. ncerned how we would handle this clause In the ad-
minlstratlon of the project agreement It was explained to them that
well. let me be quite frank. What they thought we would do is. ans
struck work we would assign another craft to do this. which is absolute-
1s not the intent of the agreement It was explained
Q. [Interruptingl Would that be a work jurisdiction problem'
A. Yes The) thought If carpenter work was struck anld theN were
out on a lawful ecnomic strike that we might assign carpenter work to
some other cialft while the carpenters were out on strike, but that's not
the intent of the agreement and it was explained to them on two or
three .ccasions that the was we handled the language in this agreement
was that if a trarf is out on a lawful economic strike that the other
Co.atnuted
1335
I)' (ISIONS OF? NATIIONAl, IABOR RE.A IIONS BOARD
pass on the Administrative l.aw Judge's alternativae
argument that the language of the no-strike clause
was "directed against unions and not individual em-
ployees." we adopt his finding that the no-strike pro-
vision in the contract and its relevant hargaining his-
tory fail to show an unequivocal waliver of the right
of employees represented by one union to honor aln-
other union's picket line. Accordingly. we adopt his
crafts would be required to oilk up to I hat ltiurlisdilctln ide il Cl , -
cliiista.nces woulld thes he required to pcrllnl tlleir lwork.
Q. After Ihis discussioll were there .ils ot(lhe r bjeatijis o r lls tlhe,
disgllsions that llu c.an recall ibholt the ri,) strike lureecilmete
'
A No
Q At the I.a(C'gne job. to sour knluledgc. has there cscr beenl .Is
sort of denial bh the sariius unionls parts to Ithat .igreeltlet. thait thle
hase a dutv to cross another Ulliin's picket line ianid reporl t.o ,ork"
A No l'his was discussed with thelil on sexelall .'clsiln, \ftei
thes received assurance fromn us thilt e uould nll tS'i ilsl tilelr wIrk.
an? struck swork to another craft. It seemned It alll 1 ll the f:lers tie
had ;Ihbout Seticon 4.
Q Article 4'
A. Article 4.
On cross-examination. he continued
Q. [General ('ounsell )Do yiou knlow wha.t a s mpatlh, strike rs. Mr
Banks'
A Yes
Q. What is it'
Q it is a reaction on the part (if other uniollls in support of another
striking entity.
Q. Not crossing a union's picket line then wo.uld he aI fair characleri-
zation. is that correctl
A Yes.
Q You say discussions. In that nature did it cime up at the timle of
negotiation'
A Thaiur orl wals never nlenitioned ill niigutlllrillil
Q. l.et me ask you. have siou ever seen contractl where no strike
provisions. where sympathy strikes w ere actualls. esxlllitll hbarred in a
no strike provision
t
A Yes
Q No contract that you negotiated though'
A. Yes The nell tine had ihat langiuage n irt. helute I ther, isi wi
much mirunderstanding on the La( irgne lob
Q. But this one did not have that'
A 'No. we did noi think it isit nlei csuri [I nmph;asis eupplied.}
As the Administrative Law Judge found, all that is clear from this tets-
mony is that the signatory unions were assured that the no-strike language
in the project agreement did not require their members to perfoirm struck
work if one of the unions engaged in an economic strike Respondent's 'ice
president specifically testified that the issue of sympathy acti,,iti was not
discussed. Thus, our dissenting colleague's attempt to portray this ohiiousls
ambiguous testimony as unequlsocal by selectlveli qusoting it out of contexl
will not withstand scrutinN. Moreover. our colleague falls to mention. much
less attach any weight to. the evidence that "because there was so Imiuch
misunderstanding" in the instant case about the meaning of the no-strike
clause. Respondent negotiated subsequent agreements which expressls pro-
vided for a ban in picket line observance In fn of the ma;lonrit opinion il
Davis-McKee, supra. the Board stated that it did not consider subsequenlt
attempts to change ambiguous no-strike lanugage in neglontiions s ith other
parties to be particularly probative of what the parties intended hb the
ambiguous no-strike language in the first place. Member Penello, however.
stated in fn. 37 of his concurring opinion in Datiis- hic(ee that "in viess of
the evidence relating to bargaining history. I have no doubt that we reached
the correct result [in finding in Gar-Heobart. supra. that ;i broad noi-strike
clause did not waive the right to engage in simpathi activit l" We are
therefore puzzled at his failure to mention. much less rels on. the "bhargauil-
ing history" in this case. which is almost identical to that he considered
critical to his participation in iGari-Hohurt
conclusion that Respondent violated Section 8(a)(3)
and (I) of the Act when it discharged three employ-
ees for engaging in such sympathy activity.
ORD)ER
LPursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor Re-
lations Board adopts as its Order the recommended
()rder of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Dan-
iel ('onstruction C'ompan,. Inc., Greenville, South
('arolina, its officers, agents, successors, and assigns.
shall take the action set forth in the said recom-
mended Order. as so modified:
Substitute the following paragraph 2(c):
"(c) Mail the attached notice marked 'Appen-
dix" 3 to each employee who was listed on the Re-
spondent's payroll on April 12, 1977, including per-
sons terminated on that date, at the LaCygne project,
and to each Union whose members were employed
by the Respondent at the LaCygne project on that
date. The Respondent is ordered to furnish the
names and addresses of each such employee and
Union to the Regional Director for Region 17 for use
for such mailings."
MtEMB-R Pi NtitLO dissenting:
Contrary to the majority, I would find that the Re-
spondent lawfully discharged three employees be-
cause they engaged in an unprotected sympathy
strike. The terms of the no-strike clause in the appli-
cable collective-bargaining agreement, as well as rel-
evant extrinsic evidence, discloses that the employ-
ees' right to engage in sympathy work stoppages had
been waived by their union. The remarkable aspect
of this case, however, is that my colleagues refuse to
join me in this finding, despite evidence sufficient to
conclude that the right had been waived even under
the strict test recently enunciated by the majority in
International Lnion of Operating Engineers, Local
Union 18, AFL-CIO (Davis-McKee, Inc.).6
Respondent is engaged in the building and con-
struction industry. Before beginning work as general
contractor on a $200 million power plant project in
LaCygne. Kansas, Respondent, on April 6, 1973, en-
tered into a "Project Agreement" governing terms
and conditions of employment with 15 unions who
would be working on the site. The contract contained
the following no-strike provision:
During the existence of this agreement, the
" 238 Nl.RB No 58 (19781 Imself concurring In the result)
]330
DANIEL CONSTRUCTION COMPANY. INC
Union shall not permit any strike, slowdown or
other work stoppage and there shall be no lock-
out by the Employer; provided, however, this
shall not apply as to any union signatory to this
agreement which calls a strike arising out of the
termination of the Union's local working agree-
ment . . . or any future local working agree-
ments entered into by the Unions and the cur-
rently recognized contractor's bargaining
representative.7
At the hearing, Bobby L. Banks, Respondent's cor-
porate vice president of industrial relations, testified
about negotiations regarding the no-strike clause.
Banks stated that representatives of the unions ex-
pressed concern that the provision might permit the
Respondent to assign to a union work which was not
being performed because of a lawful economic strike
by another craft. However, Banks explained during
negotiations that the language of the clause meant
that "if a craft is out on a lawful economic strike that
the other crafts would be required to work up to that
jurisdiction," but not to perform struck work. The
unions, according to Banks, accepted this interpreta-
tion of the provision without objection. Banks' testi-
mony was not disputed.
On March 31, 1977, upon expiration of their local
working agreement, the Ironworkers commenced an
economic strike at the jobsite, and picketed the site
from April I until April 12. Each of the three Charg-
ing Parties in the instant case, David M. Mills. a
member of the Carpenters Union, Glenn Arnold, a
member of the Laborers Union, and John L. Ram-
sey, a member of the Operating Engineers Union,
declined to cross the Ironworkers picket line during
this period.' On April 12, Respondent's project man-
ager, William D. Goodman, sent mailgrams to Mills.
Arnold, and Ramsey, informing them that they were
being terminated for "absenteeism."
Meanwhile, on April I, the first day of the picket-
ing, Goodman notified all the Unions concerned of a
projectwide work stoppage and demanded that the
project be manned immediately, citing the no-strike
provision of the collective-bargaining agreement.
Some employees engaged in various crafts began to
report for work thereafter. On April 6 Goodman
again informed the Unions that the project was not
adequately manned and stated that the Respondent
would exercise its right under the contract to hire
employees at the jobsite beginning the following day.
Goodman later telephoned each of the union busi-
ness agents to insure that they had received the mail-
'The contract provided that local uorking agreemcnlt With ..crlluo
unions would be recognized except as nmodified h, Ihe project agreeen tll
8 On April 7 Anold received permission t alltend a funcrali
gram announcing the intention to hire at the site. The
Laborers business agent told Goodman on April 7 or
8 that the job would be manned, and subsequently
laborers were referred out. Also, electricians, team-
sters, and painters were referred out.
The majority, adopting the reasoning of the Ad-
ministrative Law Judge, finds that Respondent vio-
lated Section 8(a)(3) and (I) of the Act by discharg-
ing Mills, Arnold. and Ramsey because they engaged
in a lawful sympathy strike. The Administrative Law
Judge found that the broad no-strike clause in the
project agreement did not serve to relinquish the em-
ployees' right to strike in sympathy with the Iron-
workers, and thus subject them to discipline for
breaching the contract. The Administrative Law
Judge noted that Banks did not testify that there had
been any specific discussion during negotiations of
whether an employee could be discharged or disci-
plined for honoring a primary picket line at the
worksite. The Administrative Law Judge also found
that the language of the no-strike clause appeared
"to be directed against unions and not individual em-
ployees," and thus did not forbid the work stoppage
engaged in by the three employees. Finally, the Ad-
ministrative Law Judge referred to the absence of
any specific provisions prohibiting employees from
honoring the primary picket line of another union.
I would dismiss the complaint. In my concurring
opinion in Davisi-McKee, Inc.. supra, the recent lead
case concerning waiver of the right to engage in sym-
pathy strikes. I stated that no-strike clauses purport-
ing to forbid all strikes should be construed to in-
clude sympathy strikes, unless extrinsic evidence
should disclose otherwise.9 The majority in the same
case, including the majority of this panel, decided
that such clauses should not be interpreted as pro-
hibiting sympathy strikes, unless sympathy strikes
are referred to specifically in the provision or perti-
nent bargaining history indicates that the clause was
intended to extend to such strikes.
In the facts of the instant situation, the no-strike
provision in the project agreement, by its terms, for-
bids all work stoppages except economic strikes un-
dertaken at the expiration of local working agree-
ments. Regarding bargaining history, Respondent's
vice president of industrial relations stated that, dur-
I ill not repeat heie Ihe re.ioninng which led to that conclusion. hut wXil
sInlpl? refer the readcr to mi opinion in Iails-MlKee ( ontrar5 to the
alleaion of the n3,lorit ? . I hace not departed fronm the xlew that alrver of
Sev 7 rihlr mlut h.b expressed in "clear and unmlrtakhlte" terms Rather
the Isc su .I hait conllluts "clrar and unmialkahle" celdenrce of , alvcr.
and ilr, colczague l and I disagree one Ihal pointl a indtcated In our re-
,pectIec opininislr l l D1) kf Av,'
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing negotiations, he informed the Unions that, as Re-
spondent construed the no-strike clause, they would
be required to work up to their jurisdiction during an
economic strike by another craft, but not to do the
other Union's struck work. The Union acquiesced in
this interpretation of the provision. This testimony
can only mean that when an economic strike by one
union was in progress, the other unions would have
to perform their usual work. Thus, using the
majority's test for establishing waiver of the right to
engage in sympathy strikes, relevant bargaining his-
tory makes clear that the no-strike clause was intend-
ed by the parties to include sympathy strikes.'0
I also find no merit in the Administrative Law
Judge's suggestion that the clause in question does
not prohibit refusals by individuals to cross picket
lines of other unions, but refers only to strike activity
by the "Union." For one thing, the provision states
clearly that each signatory union, as representative of
certain employees, will not "permit" strikes or other
work stoppages, which can only be undertaken by
employees themselves. Further, where an individual
employee refused to cross a picket line erected by a
union other than his own in N.L.R.B. v. Rockawav
News Supply Company, Inc.," the Supreme Court de-
cided that his right to do so had been waived by this
clause, referring only to "parties," in his union's col-
lective-bargaining contract: "No strikes, lockouts or
other cessation of work or interference therewith
shall be ordered or sanctioned by any party hereto
during the term hereof except as against a party fail-
ing to comply with a decision, award, or order of the
Adjustment Board."
In these circumstances, I am constrained to find
that the right of the Charging Parties to engage in a
sympathy strike had been clearly and unmistakably
waived in the project agreement and thus that it was
not unlawful for Respondent to discharge them for
participating in such a strike.
l0 The majority asserts nonetheless that. "there is no evidence that the
questions of picket-line observance or sympathy strikes were even consid-
ered or discussed before the instant dispute arose." However. when it is
understood between the parties that the no-strike clause of the collectlle-
bargaining agreement requires unions to perform their own work in the
event of an economic strike by another union working on thejobsite. this h?
definition must mean that the contract forbids sympathy strikes That the
Farties may not have referred during negotiations to "sympathy strikes" by
name does not detract from the plain agreement of the parties concerning
the obligations of unions and their members during a lawful economic strike
by another union.
The majority also suggests that the no-strike clause in the LaCygne proj-
ect agreement should not be read as prohibiting sympathy strikes. hecause
Respondent later entered into other project agreements in which sympath.
strikes were prohibited by name. Such evidence may he helpful In determin
ing the scope of a no-strike clause where there is no bargaining histors
concerning the penod leading up to agreement on the contract at issu, and
plainly disclosing the intent of the parties. In the instant case. however.
relevant "pre-agreement" bargaining history does exist which reveals Ihat
the parties to the LaCygne project agreement meant to include sympaths
strikes within the no-strike ban, thus clearly providing the best indication of
the breadth of the no-strike provision.
" 345 U.S. 71 (1953).
DECISION
STATEMENT OF THE CASE
JAMES L ROSE. Administrative Law Judge: This matter
was heard before nle at Kansas City, Kansas, on August 8
and 9, 1977 .1 In general terms, the complaint alleged that
on April 12 the Respondent discharged the three named
Charging Parties because they refused to cross a picket line
and go to work. The three discharges, and the subsequent
failure and refusal to reinstate two of the Charging Parties,
are alleged to be violative of Section 8(a)(1) and (3) of the
National Labor Relitions Act, 29 U.S.C. §151, et seq.
The Respondent generally denied that it committed any
unfair labor practices, and specifically alleged that by
honoring the picket line, the Charging Parties breached the
no-strike clause project agreement thus their discharges
were for cause. Further, on removal of the picket, the Re-
spondent began rehiring employees on a nondiscrimina-
tory basis.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
The Respondent is a wholly-owned subsidiary of Daniel
International with headquarters in Greenville, South Caro-
lina. The Respondent is engaged in the building and con-
struction industry, specifically as the general contractor of
a $200 million power plant project near LaCygne, Kansas,
the site where the material facts in this matter arose. In
connection with that project, the Respondent annually pur-
chased goods, products, and materials valued in excess of
$50,000 which were delivered directly from points outside
the State of Kansas. The Respondent admits, and I find,
that it is an employer engaged in interstate commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
There were a number of labor organizations whose
members worked for the Respondent at the LaCygne proj-
ect including Ironworkers Union Local Union No. 10
(herein the Ironworkers). Laborers and Construction Local
Union 1290 (herein the Laborers), Carpenters Local 714,
affiliated with Carpenters District Council of Kansas City
and Vicinity (herein the Carpenters), and Local 101, Inter-
national Union of Operating Engineers (herein the Operat-
ing Engineers). The Respondent admitted, and I find, that
each of the named labor organizations are labor organiza-
tions within the meaning of Section 2(5) of the Act.
All dales are in 1977 unless otherwise indicated
1338
DANIEL CONSTRUCTION COMPANY, INC.
i1I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In connection with construction of the power plant, the
Respondent hired employees who were members of ap-
proximately 15 different craft unions, including those
named above. As the project manager testified, he typically
hired employees as needed through contacting the re-
spective business agent for each union.
On April 1, a picket line appeared at the project indicat-
ing that the Ironworkers was on strike for a new contract.
While there had been rumors that the Ironworkers might
go on strike, the fact that the strike would commence on
April I and that the LaCygne project would be picketed by
the Ironworkers was unknown until that day.
Each of the Charging Parties testified that he went to
work on April I about 7:30 a.m. as usual, saw the picket
sign, stayed at the project until 8 o'clock and then went
home. Mills testified that thereafter he went to the project
every day about 7:30 a.m. and went home about 8 o'clock.
He also testified that on 3 days, April 4, 6, and 7, he called
the Respondent's timekeeper to say he would not be in.
Arnold testified that after the first day he did not go to
the project, but he did call on April 7 to ask for time off to
attend a funeral. He was given such permission.
Ramsey testified that he showed up for work on April 1,
but did not go back to the project until April 13 after hear-
ing on his CB radio at home that the Ironworkers had
stopped picketing.
Each Charging Party testified that when he arrived on
August 13, he went to the brass shack to pick up his brass
identification tag and was informed that he had been ter-
minated.
On April 12 the project manager, William D. Goodman,
determined to terminate all of the employees who were not
coming to work as a result of the picket. Although he testi-
fied that he did not terminate any of these individuals be-
cause they refused to cross the Ironworkers' picket line, it
is clear from his testimony that in fact this was the reason
for determining to terminate the employees when he did.
The Charging Parties, and others, had absented themselves
from the project as a result of the Ironworkers' picket line
and because of the absenteeism, he determined to dis-
charge them.
Goodman's decision to begin processing the termina-
tions was made on April 12 but before he knew that the
picket signs would be withdrawn at the close of business
that day. He did this, he said, in order to "clean the slate"
so that he could hire replacements and get the project mov-
ing again.
On April I and again on April 6, Goodman wrote the
Carpenters, Laborers, and Operating Engineers, and other
unions, advising them that because their members were
honoring the Ironworkers' picket line, they were in viola-
tion of the no-strike provision of the project agreement.
Goodman further wrote each employee terminated on
April 12 that that employee had been terminated because
of absenteeism and enclosed each employees' final pay-
check. He stated that a termination letter is standard policy
of the Company regardless of the reason for the termina-
tion.
Also on April 12, Goodman called each of the business
agents whose members he intended to terminate advising
them that he was going to terminate their respective job
stewards effective April 12.
Thereafter. Goodman did hire back some of the 50 em-
ployees he terminated on April 12 including, finally, Ar-
nold and Mills. He did this, he stated, by following his
usual policy of contacting the particular craft business
agent for needed employees.
The business agent for the Carpenters, Virgil Huckat-
horn, testified that he talked to Goodman on April 13.
Goodman would have rehired the job steward on that day
and in fact the steward went back to work on April 14.
Huckathorn said that he did send carpenters back to the
Respondent. He did not refer Mills until somewhat later,
however, because of union's policy of referring individuals
back to jobs based cn project seniority and that Mills had
a relatively high seniority number.
On April 29 the Respondent finished its work on the
project and, except for a few truckdrivers and perhaps
some other employees, closed out the project and turned it
over to the Kansas City Power and Light Company.
B. Analysis and Concluding Findings
This case involved two principal issues: (I) Whether the
Respondent discharged the three Charging Parties on April
12 because they had refused to cross and work behind a
picket line established by the Ironworkers, and (2) Whether
discharging an employee for such reason under the facts of
this case is violative of Section 8(aX1) and/or 8(a)(3).
First the only reasonable conclusion to be drawn from
the entirety of the record is that the Respondent in fact
discharged these individuals because they had honored the
picket line. The Respondent knew, indeed Goodman so
testified, that the reason these employees were absent from
work was because of the Ironworkers' picket line. He fur-
ther testified that he did not discharge them after they had
been absent 3 days, which would be standard company
policy, because in his conversations with the picket carriers
he was lead to believe that the dispute would shortly settle.
It was only when it appeared that the dispute would drag
on that Goodman determined to effect the discharges and
make other arrangements to get the work done. Ironically,
Goodman made his decision on the day the Ironworkers
decided to quit picketing. In any event, the fact that the
Charging Parties had, in effect, joined the Ironworkers'
strike was the precipitating cause of their discharges.
Thus the question is whether honoring the picket line of
another union is protected, concerted activity or union ac-
tivity for which an employee cannot be disciplined or
otherwise discriminated against.
The General Counsel argues that employees are privi-
leged to honor picket lines placed by unions other than
their own at a construction project and that such activity is
protected by Section 7 of the Act. Therefore, to discharge
one for having engaged in such activity is violative of Sec-
tion 8(a)( 1) of the Act. Also, since to honor a picket line is
traditional union activity, to discharge one for doing so
necessarily would be to discriminate against him because
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his union activity in violation of Section 8(a)(3).
The Respondent, on the other hand, contends that the
project agreement contains a "no-strike" clause, and when
the employees honored the picket line, thus joining the
strike, they then breached the contract. Accordingly their
activity lost its protected character, and the Respondent
could discharge them with impunity.
As the general rule, an employee may honor a picket line
placed by a union other than his own and such is protected
by Section 7, and is therefore activity for which he could
not be terminated. Newberg Energy Corporation, Industrial
Division, 227 NLRB 436 (1976); Gary-Hobart Water Corpo-
ration, 210 NLRB 742 (1974).
In effect, when one honors a picket line he thereby aligns
himself with the union on strike and himself becomes an
economic striker. Therefore, the employer could perma-
nently replace him, but it could not discharge him; and at
the time the employee ceases his striking, if he has not been
permanently replaced, he is entitled to his job back.
The Respondent argues that Article IV of the project
agreement prohibits employees from honoring a picket line
established by a union other than their own which is on
strike for purposes of obtaining a new collective-bargaining
agreement. Therefore, honoring the picket line in such cir-
cumstances is not protected and the Respondent was privi-
leged to discharge employees who did so. I disagree.
At best article IV of the project agreement is ambiguous
concerning what type of conduct it purports to permit and
to prohibit.
Bobby B. Banks, corporate vice president in charge of
personnel relations, has participated in negotiating nine
such project agreements. He testified that the language of
this particular contract was changed following an experi-
ence the Respondent had in Louisiana wherein the no-
strike clause, apparently, was absolute and prohibited
striking by a union even where the union's underlying col-
lective-bargaining agreement had expired. In an effort not
to get involved in such a situation again, the language was
revised to read:
ARTICLE IV
No Strikes-No Lockouts
Section 1. During the existence of this agreement.
the Union shall not permit any strike, slowdown or
other work stoppage and there shall be no lockout by
the Employer; provided, however, this shall not apply
as to any union signatory to this agreement which
calls a strike arising out of the termination of the
Union's local working agreement, copies of which are
attached hereto, or any future local working agree-
ment entered into by the Union and the currently rec-
ognized contractor's bargaining representative.
Section 2. The Union shall not be liable under this
article unless it has notification of the violation, and
has failed to take all means at its disposal to remedy
such violation.
Section 3. Any provisions in any existing or future
local working agreement which is designed to limit or
restrict the Employer's right to fully pursue any and
all remedies available under law in the event of a vio-
lation of this Article shall not apply to this construc-
tion project.
Banks testified that discussions he had with the various
craft unions at the LaCygne project were centered on their
concern that in the event of a economic strike by one of
them, the Respondent would require the other crafts to do
the struck work. He assured them that the Respondent had
no such intention.
Banks did not testify that either he or the unions had any
discussion concerning whether it would be a breach of the
contract or cause for discipline or discharge for an employ-
ee to honor a primary picket established at the project.
Since the no-stril e clause appears on its face to be di-
rected against unions and not individual employees, and
since there is no specific provision against honoring a pri-
mary picket line of another union, I cannot construe the
clause to be so broad as to prohibit the activity engaged in
here by the Charging Parties.
Sometimes a picket line proviso is written into broad
no-strike clauses. However, the absence of such a provision
cannot be construed to mean that the parties agreed that
employees would not be allowed to honor the primary
picket of another union, particularly absent any testimony
that their subject was even discussed.
This is not to say that if an employee who honors a
primary picket could not be replaced under the usual rules
applying to economic strikers. I conclude only that under
the specific language here, in honoring the primary picket
line of another union the employee has not breached the
contract and therefore has not engaged in an unprotected
activity.
Goodman credibly testified that his principal interest
was to get the project done, that he felt all the employees
terminated were excellent workers and that he wanted
them back. He testified that he would and did take them
back as he had room for them; but he could not use them
all on April 13, principally because the character of the job,
and therefore the craft requirements, had changed between
April I and Apnl 13. Such was a result the Ironworkers
picketing and of the Respondent's effort to close out the
project.
Given this, I conclude that the Respondent did not re-
fuse to reinstate the Charging Parties, or indeed any of the
50 employees terminated on April 12, because they had
had engaged in protected or union activity. That the
Charging Parties were not reinstated on April 13 was a
result of economic conditions at the time and not because
of their union or protected activity.
To summarize, I conclude that in honoring the picket
line on April I, the three Charging Parties engaged in activ-
ity generally protected by Section 7 of the Act. And this
protection was not lost as a result of the no-strike clause in
the project agreement. The discharge of these employees
because they became economic strikers was violative of
Sections 8(a)(l) and (3) of the Act, but they were not re-
fused reinstatement because of their union activity or to
discourage union activity.
1340
DANIE1. CONSTRUCT ION COMPANY. IN(
IV tFFIt I( OF I H I. NFAIR L ABOR PRA( I( tES t PN ( 'OMMI R('F
The unfair labor practices found are unfair labor prac-
tices affecting commerce and the free flow of commerce
and tend to lead to labor disputes disrupting commerce
within the meaning of Section 2(6) and (7) of the Act.
v THE RFMnDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discharged David M.
Mills, Glenn Arnold, and John L. Ramsey in violation of
Section 8(a)(l) and (3) of the Act, the usual remedy would
be to order the Respondent to reinstate them to their for-
mer positions and to pay them for any losses that they may
have suffered as a result of the discriminations against
them.
The evidence, however, is conclusive that the Respon-
dent's project lasted only until April 29 after which time
these particular employees would not have had any expec-
tation of continued employment. It further appears that the
Respondent did in fact put Mills and Arnold back to work.
I therefore will not order the Respondent to offer reinstate-
ment to these three employees. I will recommend that the
Respondent be ordered to make whole these three employ-
ees for any losses each may have suffered as a result of
having being discharged on April 12, with interest at the
rate of 7 percent per annum. Florida Steel Corporation, 231
NLRB 651 (1977).
Upon the foregoing findings of fact and conclusions of
law, the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2
The Respondent, Daniel Construction Company. Inc.,
Greenville, South Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because they honor the primary picket line of any
labor organization, unless a contract covering their em-
ployment specifically prohibits such activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole David M. Mills, Glenn Arnold, and
John L. Ramsey, for any loss of wages or other benefits
they may have suffered as a result of the Respondent's
termination of them on April 12, 1977, in accordance with
provisions of The Remedy section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying all payroll
records, social security payment records, timecards, per-
sonnel records and report., and all records necessary to
analyze the amount of backpay due under the terms and
conditions of this Order.
(c) 'Ihe .aC'ygne project is completed, and since the Re-
spondent's principal office is in South Carolina, it would be
completely ineffectual to require posting there. To properly
effectuate the policies of the Act, and to insure that those
emplosees who might ha e been affected by the unfair la-
bor practices are notified, it is ordered that the Respondent
mail the attached notice marked "Appendix" 1 to each em-
plo\ee on the Respondent's payroll in 1977 at the LaC'ygne
pro ject and to each union whose members the Respondent
hired in 1977. The Respondent is ordered to furnish the
names and addresses of each such employee and union to
the Regional Director for Region 17 who will prepare suffi-
cient copies of the r otice for such mailings.
(d) Notify the R(egional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
The allegations of unfair labor practices in all respects
not found herein are dismissed.
:In the event no exceputins ,re filed as prosided hs Sec 102 46 of the
Rule, and RetFulatonr of the Natoional Labor Relation' Board. Ihe find-
us. colinlulon, and recommended Order herein shall. as provided In Sec.
102 48 of the Rule, ind Regulalion,, he adopted by the Board and heorm
its fildJilgs, cnclusInons and Order. and all hobjctions thereto shall he
deemned saioed for all purposes
In the exent that this Order is enforced h) ajudgment of a t nited Siaies
(iurl of Appeals. the ,ords in the notice reading "Posled h, Order of the
Nattolnal Ihabor Relallon BoHard" shall read "Posted Pursuantl o a Judg-
mcnrt of the t ilted States ( ourt of Appeals F.nforclng an Order of the
Naitonal I ahor Relations Board
APPENDIX
NOTICE To EMPLOYEES
P)STED BY ORDER OF THE
NATIONAL LABOR RILATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the right to partici-
pate, it has been found by the National Labcr Relations
Board that we have violated the National Labor Relations
Act. We have been ordered to remedy those unfair labor
practices, and to mail this notice, and comply with the
terms of it.
WE WILL NOT discharge or otherwise discipline our
employees because they honor the primary picket line
established at any of our construction projects by an-
other labor organization unless the contract covering
their employment specifically prohibits employees
from honoring another union's primary picket line.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the rights guaran-
teed them by Section 7 of the Act.
WE WILL make whole David M. Mills, Glenn Ar-
nold, and John L. Ramsey, for any loss of wages or
other benefits they may have suffered as a result of the
discrimination against them, with interest.
DANIEL. CONSTRUCTION COMPANY. IN(
1341