Daniel International Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 795 (N.L.R.B. 1985)

DANIEL CONSTRUCTION CO.
Daniel Construction Company, a Division of Daniel
International Corporation and Carl E. Wilcher.
Case 5-CA-16305
20 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 23 April 1985 Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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, findings, I and
conclusions and to adopt the recommended Order.
As found by the judge ., employees Wilcher, Tho-
masson, Arsenault , and Metheny engaged in a pro-
tected work stoppage in protest over being denied
permission to leave the jobsite during a driving,
freezing rain which caused them to become wet
and cold . The facts clearly establish that the em-
ployees acted in a concerted manner as contemplat-
ed by the standards recently enunciated in Meyers
Industries . 2 Thus, the employees acted with one an-
other when they left their work areas on 21 March
1984 and relied on each other to some measure in
so doing .3 More specifically , they discussed their
mutual concerns about their discomfort and safety,
made simultaneous requests for early-out passes,
left the worksite together when their requests were
denied , rode the same truck to the parking area,
agreed to meet at the personnel office, and jointly
discussed their concerns about the adverse working
conditions with individuals in the personnel and
payroll offices.4
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
iWall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D C Or 1985 )
3 Id. at 497 and 499
4 Wilcher, Arsenault, and Thomasson engaged in all the noted activi-
ties together Metheny, assigned to a different crew, participated in the
discussions at the bottom of the stair tower concerning working condi-
tions and, though separated from the other employees for a short period
of time, rejoined them on the transport truck. We agree with the judge
that at all times thereafter Metheny acted fully in concert with the others
and was treated by the Respondent in an identical manner . We further
agree with the judge's finding that the Respondent's belief that Metheny
acted in concert with Wilcher, Arsenault, and Thomasson is sufficient to
795
The judge further found, and we agree, that the
concerted activities of the four discriminatees were
protected. Contrary to our dissenting colleague, we
find that the employees' spontanenous refusal to
work for 1 day in protest of unique and adverse
working conditions, even in the face of a company
rule requiring permission to leave the job, is pro-
tected by the Act.5 Such a single concerted walk-
out is presumptively protected, absent evidence
that the work stoppage is part of a plan or pattern
of intermittent action inconsistent with a genuine
withholding of services or strike.6 No such evi-
dence is present here.
Although our dissenting colleague would hold
the employees responsible for their exposure to the
elements, we find that position unsupported. The
situation encountered by these employees was an
unusual one . Typically, the employees' exposure to
adverse weather conditions such as rain or snow is
minimal-the exposure is limited to the time it
takes employees to descend the stair tower and
reach their rain gear. On this day, the employees
descended the stair tower as required and found a
pool of water 3 or 4 feet deep blocking access to
their protective clothing. High voltage electrical
cables ran under the water. They waited on the
stairs for 25 to 45 minutes to see if the pumps oper-
ating in the reservoir would be capable of draining
the rain water from their assigned wort location.
At no time were they instructed to climb the stair
tower and take shelter. Despite the fact the em-
ployees had no protection from the cold and rain,
they dutifully awaited instructions from manage-
ment. When none were' forthcoming, and the
severe weather conditions became intolerable, they
jointly decided for safety and health reasons to
seek relief. In so doing, they engaged in the most
plainly protected kind of work stoppage to remove
themselves from the very conditions our dissenting
colleague claims they voluntarily exposed them-
selves to. The Respondent's reassignment to work
in a dry location in lieu of granting the employees'
requests for an early-out pass offered little to allevi-
ate the uncomfortable, potentially health-threaten-
ing working conditions under protest. The employ-
ees were already soaked, with no change of cloth-
ing at the site.
For all the above reasons, we' agree with the
judge that the four involved employees engaged in
protected, concerted activities, and that the Re-
spondent violated Section 8(a)(1) of the Act by ter-
minating them for engaging in such conduct.
bring Metheny within the protection of the Act. Wonarch Water Systems,
271 NLRB 558 (1984)
5 NLRB v. Washington Aluminum Co, 370 U S 9 (1962)
6 Polytech, Inc., 195 NLRB 695, 696 (1972)
277 NLRB No. 81
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Daniel Con-
struction Company, a Division of Daniel Interna-
tional Corporation, Bath County, Virginia, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order.
Thomas M. Lucas, Esq., and Robert H. Murray, Esq., for
the General Counsel.
Jeffrey H. Lerer, Esq., and Michael D. Kaufman, Esq.
(Thompson, Mann and Hutson), of Atlanta, Georgia,
for the Respondent.
Carl E. Wilcher, of Craigsville , Virginia , pro se.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
At various times on March 21, 1984,11 Carl E. Wilcher,
Doug Metheny, Henry Thomasson, and Jacqueline Ar-
senault, employees of Respondent Daniel Construction
Company, a Division of Daniel International Corpora-
tion, left their jobsite. They were fired; and the principal
issues herein are whether they were exercising their right
to engage in protected and concerted activities and, if so,
whether Respondent, by disciplining them, violated Sec-
tion 8(a)(1) of the National Labor, Relations Act, 29
U.S.C. § 151 et seq. Respondent denies that it violated
the Act in any manner.2
Respondent has been engaged , as general contractor,
in constructing the Bath County Pumped Storage
Project, located in Bath County, Virginia, a hydroelec-
tric station being built for the Virginia Electric and
Power Company.' The jobsite, located at the top of a
mountain , is the Intake No. 2, one of two large holes, 80
feet deep and 100 feet across, in which a dam was being
created to form a 265-acre reservoir. On March 21,
Wilcher, Thomasson, and Arsenault reported to the
"time alley" at the top of the mountain, where they
clocked in between 6:35 and 6:46 a.m., and then proceed-
ed by bus to the top of the intake, arriving there prior to
their 7 a.m. starting time. It was cold, windy, and raining
very hard,4 and none of them had worn their rain gear,
° All dates refer to the year 1984, unless otherwise stated.
The relevant docket entries are as follows, Wilcher's charge was filed
on April 10; complaint issued on June 29; and a hearing was held in Lex-
ington , Virginia, on September 18 and` 19.
3 Respondent admits, and I find , that it is a South Carolina corporation
with an office and place of business in Greenville , South Carolina, and is
engaged as a general contractor in the building and construction industry.
During the 12 months ending April 10, 1984 , Respondent , in the course
of its operations , purchased and received at its Bath County jobsite,
goods and materials valued in excess of $50 ,000 directly from points out-
side the State of Virginia I conclude that Respondent is and has been an
employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act
* Some witnesses testified that the rain had turned to sleet or snow for
a period of time.
which-was supplied by Respondent and stored in the em-
ployees' gang box at the bottom of the intake. In the
meantime , Stuart Neil, their foreman, had conferred with
General Foreman Bart Ailstock and received the crew's
assignment. Neil met his crew and, together, they
climbed down the stair tower into the intake to get to
the gang box.
When they arrived at the bottom, they saw that a rain-
made lake, 3-4 feet deep; prevented them from getting to
their destination. Approximately 15-25 employees, in-
cluding Metheny, who arrived about 7 a. m., gathered at
the bottom of the stair tower and, apparently, they just
stood around as water poured down on them from the
stair tower. Nobody directed them to go to the gang
box. Several employees, including Wilcher and Arsen-
ault, commented on the high voltage electrical cables
running under the water and stated that they would not
walk through the water or climb on the fence to get to
the gang box, as a few employees had done. Wilcher and
Arsenault were referring to an incident involving an-
other employee who, had been electrocuted on the job-
site the week before. After standing in the rain for some
25-45 minutes, Wilcher, Thomasson, Arsenault, and an-
other employee Sheets each asked Neil to-issue early-out
passes so they could leave the project and go home, Thef
employees and Neil climbed the stair tower to the top on
the intake. Neil left to speak with Ailstock and the em-
ployees sought shelter in a shack.
Neil testified that he assumed that the employees had
requested passes because of the inclement weather and
told Ailstock that members of his crew did not want to
work in the rain. Ailstock refused his request for passes.
Neil returned to the shack and told the employees that
Ailstock had refused their request and that they were,
going to work the high block, out of the rain . The three
employees balked: Wilcher, stating that he was soaking
wet, that he had no dry clothes to wear, that it would be
better to miss one day rather than a week (if he got sick),
and that he was going home; Thomasson, that he was,
surprised at the denial, that he was not feeling well, and
that he wanted to go home; and Arsenault, that she was
going home.
As Neil was leaving to return- to the bottom of the
intake, Wilcher told him that he would see him the next
day. Arsenault left the other employees to look for a
truck to take them to the employee parking lot. She
found one and entered the vehicle. Metheny was sitting
there.' As stated above, Metheny had also been at-the
bottom of the intake earlier. He had heard Wilcher and
other employees discuss the electrocution of the prior
week, had heard Wilcher say that he was going home,
had heard Neil say that he too ought to go home, and
had seen Wilcher and a couple of other employees leave
the jobsite. Metheny, however, worked, on a different
crew, and his foreman, Tom Dudley, was across the
water from Metheny, so Metheny was unable to speak
i Charlotte McCarty, the truckdriver, testified that all four employees
boarded the truck at the same time and that Arsenault wore yellow rain
gear and Thomasson had yellow rain gear under his arm I believe none
of this uncorroborated testimony, which is contrary to all other testimo-
ny in this proceeding.
DANIEL CONSTRUCTION CO.
with him. Instead, he left word with a fellow crewman
to tell Dudley that he was wet and cold, that he had
gone home, and that he would return to work the next
day.
Metheny and Arsenault were driven back to the shack,
where Wilcher and Thomasson joined them, and they all
were driven to the parking lot. There, Wilcher said that
he was going back to the personnel office (near the
bottom of the mountain) to find out why all the employ-
ees- had been denied passes . The others said that they
would go, too; but Wilcher showed up first and met with
Personnel Representative Beth Armstrong. He explained
to her much of what had transpired that morning, com-
plained that he was wringing wet and cold, and asked
how Respondent could force its employees to stay on
the job under those conditions, stating that it did not
appear to be right. Armstrong showed him Respondent's
rules and regulations and told him that he could be ter-
minated for leaving his work area without permission.
Wilcher said that he was unaware of such a rule. Arm-
strong suggested that Wilcher return to his jobsite and
try to adjust the matter with his supervisor.
While Wilcher was talking with Armstrong, the three
other employees were also in the personnel office. They
asked a woman for early-out passes and were referred to
the payroll office, where they renewed their request to
timekeeper Walker, telling him that their foreman had
previously denied their requests. Walker left to consult
his supervisor. Walker returned, refused to give them
passes, said that they could be disciplined for leaving
without a pass but indicated to Metheny that he did not
know if discipline would be imposed, and clocked out
the three employees.
Before, by two-way radio, Metheny had told Superin-
tendent Costello that he was unable to get to his work
area, that he was wet and cold, and that he wanted to
leave and return the next day. Costello replied that he
did not care what Metheny did. After clocking out,
Metheny went to Armstrong's office, where she was still
meeting with Wilcher. Metheny said that he had gust
clocked out, and Armstrong explained that he, too, could
be terminated for leaving the work area without permis-,
sion . Armstrong repeated to Metheny the advice she had
earlier given to Wilcher-to go back to the top of the
mountain to work things out with his foreman. The two
employees went back to the worksite.
After they left, Walker told Armstrong that Arsenault
and Thomasson had just clocked out and left the jobsite.
General Superintendent Cato soon asked Armstrong
about Wilcher and Metheny, and she related her conver-
sation with Wilcher and told him that Walker had just
told her that Arsenault and Thomasson had also left.
Cato then called Ailstock, who testified that Cato told
him that he had some employees from Neil's crew who
were not working and who had already left the jobsite
and asked him to investigate who they were. Soon after,
Ailstock called Armstrong, who (she testified) related to
him only her conversation with Witcher.
Ailstock went to the intake and confirmed from Neil
and Dudley that the four employees were not working
with their crews. As Ailstock, Neil, and Dudley exited
from the intake, they met Costello-and, within minutes,
797
Wilcher and Metheny as they arrived from the personnel
office. Ailstock immediately told them that they would
be terminated. Witcher's explanation that they could not
get to their work area and were cold and wet and Meth-
eny's excuse that he had gotten wet and was ill and on
medication were unavailing. Ailstock stated that they
were both fired and left for the office trailer, where he
called Armstrong and stated that he intended to fire all
four employees. Armstrong. concurred that their termina-
tions complied with Respondent' s rules. Witcher and
Metheny were given termination slips, and Ailstock ad-
vised Neil to discharge Thomasson and Arsenault the,
next day. The latter two employees were advised that
evening by various people that they had been dis-
charged. Their discharges were formalized when they
went to work on March 22 and were given termination
slips by Neil.
The seminal decision in NLRB v. Washington Alumi-
num Co., 370 U.S. 9 (1962), involved a walkout of eight
machinists to protest the lack of heat in their shop. Sev-
eral of them had complained to their foremen from time
to time about their "cold working conditions."' January
5, 1959, was an extraordinarily cold day with subfreezing
temperatures and strong winds. One employee joined his
foreman in his office, hoping that it would be warmer
there. It was not; and, as the two discussed "how bit-
ingly cold the building was," the foreman suggested that
"if those fellows had any guts at all, they would go
home." When the starting buzzer sounded soon after, the
employee walked back to his working place and told his
coworkers that the foreman had told him that "if we had
any guts, we would go home" and announced that he
was "going home; it is too damned cold to work." The
employee asked the other workers what they were going
to do. They discussed the matter and decided to leave
with him. One worker described the discussion: "And
we had all got together and thought that it would be a
good idea to go home; maybe we could get some heat
brought into the plant that way." They were all dis-
charged.
The Board found that the workers had engaged in
concerted activity to protest the Company's failure to
supply adequate heat, and the Supreme Court agreed,
framing concerted activities in terms of "workers [acting]
together to better their working conditions." It distin-
guished between the earlier "spontaneous individual
pleas, unsupported by any threat of concerted protest"
and the "bitter cold of January 5 [which] finally brought
these workers' individual complaints into concert so that
some more effective action could be considered."'
Since 1962, the Board has expanded its definition of
concerted activities to include the complaint of an indi-
vidual employee to a governmental agency about safety
conditions, Alleluia Cushion Co., 221 NLRB 999, 1000
(1975), reasoning that:
[S]ince minimum safe and healthful employment
conditions for the protection and well-being of em-
ployees have been legislatively declared to be in the
overall public interest, the consent and concert of
action emanates from the mere assertion of such
statutory rights. Accordingly, where an employee
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speaks up and seeks to enforce statutory provisions
relating to occupational safety designed for the ben-
efit of all employees, in the absence of any evidence
that fellow employees disavow such representation,
we will find an implied consent thereto and deem
such activity to be concerted.
However, Meyers Industries, 268 NLRB 493 (1984), re-
manded sub nom. Frill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), changed that rule. There the Board concluded, at
497:
In general , to find an employee's activity to be
"concerted," we shall require that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self.22 Once the activity is found to be concerted,
an 8(a)(1) violation will be found if, in addition, the
employer knew of the concerted nature of the em-
ployee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity.23
22 See Ontario Knife Co v. NLRB, 637 F.2d 840, 845 (2d Cir
1980), Pacific Electricord Co. v NLRB, 361 F.2d 310 (9th Cir
1966).
23 See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899
(1st Cir. 1981), cert. denied 455 U.S 989, approved in NLRB v
Transportation Management Corp., 113 LRRM 2857, 97 LC Par.
10,164 (1983).
Under this standard , an employee "may be discharged by the
employer for a good reason, a poor reason, or no reason at all, so
long as the terms of the statute are not violated " NLRB v. Con-
denser Corp. of America, 128 F.2d 67, 75 (3d Cir 1942) Thus,
absent special circumstances like NLRB v. Burnup & Sims, 379
U.S 21 (1964), there is no violation if an employer, even mistaken-
ly, imposes discipline in the good-faith belief that an employee en-
gaged in misconduct
The Board referred, in support of its conclusion, to a
number of pre-Alleluia decisions, pointing out that the
first consideration must be "whether some kind of group
action occurred" and, if so, "whether that action was for
the purpose of mutual aid or protection." (Id., p. 494.)
Citing with approval Root-Carlin, Inc., 92 NLRB 1313
(1951), the Board described concerted activities in terms
of interaction among employees and quoted from page
1314:
Manifestly, the guarantees of Section 7 of the Act
extend to concerted activity which in its inception
involves only a speaker and a listener, for such activi-
ty is an indispensible preliminary step to employee
self-organization.
The meaning of the Meyers holding of when activities
will be deemed concerted was illustrated in two deci-
sions cited by the Board, page 494. The Board wrote:
Several years later, the Board again considered
what constituted concerted activity in Traylor-
Pamco.9 That case involved the discharge of two
men who consistently ate their lunch in the "dry
shack" even during a concrete pour, while every-
one else ate in the less pleasant surroundings of the
tunnel so as to minimize "downtime." The trial ex-
aminer, with Board approval, declined to find the
employees' refusal to eat in the tunnel to be con-
certed, stating: "There is not even the proverbial
iota of evidence that there was any consultation be-
tween the two in the matter, that either relied'in
any measure on the other in making his refusal, or
that their association in refusing to eat in the tunnel
was anything but accidential." 154 NLRB at 388.
Thus, in Traylor-Pamco, the Board continued to
define concerted activity in terms of employee
interaction in support of a common goal.
Thereafter, the Board decided Continental
Mfg ' ° in which employee Ramirez prepared and
signed, on her own, a letter that she handed to re-
spondent's owner. The letter stated that a majority
of employees were disgusted with their treatment,
that a supervisor played favorites, and that a janitor
was needed for the women's bathroom. The letter
concluded, "We all want to continue working here
with you; please help us to improve our working
conditions." The Board reversed the trial examiner's
finding that Ramirez' letter constituted concerted
activity, stating:
The letter, which was directed only to the Re-
spondent, was prepared and signed by Ramirez
acting alone. She did not consult with . . . any
other employee, or the Union about the griev-
ances therein stated or her intention of ending the
letter DeSantis [an owner of respondent]. There
is no evidence that the criticisms in the letter re-
flected the views of other employees, nor is there
evidence that the letter was intended to enlist the
support of other employees. This letter received
no support from union representatives . . . . 155
NLRB at 257.
Once again, the Board defined concerted activity in
terms of interaction among employees. I I
9 154 NLRB 380 (1965).
io 155 NLRB 255 (1965)
11
The Board 's analysis of the facts in Continental Mfg, which
were similar to those in Alleluia was directly contrary to the Alle-
luia Board 's reasoning
Respondent contends that there is no "employee inter-
action in support of a common goal" and that the four
employees were merely griping about their own individ-
ual plights and, at times, their paths crossed, either on
the stairwell, in a shack, in a truck, or at Armstrong's
office. However, the Board's test enunciated in Meyers
contemplates that an "employee's activity [is] concerted
[if] engaged in . . . with other employees." Clearly, as to
Wilcher, Arsenault, and Thomasson, that test has been
met. Common to them is that each became wet because
their rain gear was in the gang box, which was inaccessi-
ble. Although I find no verbal interaction between
them-that is, one asking for help from the other, and no
common goal they each expressed-implicit in the ac-
6 Metheny testified "They decided they were going home, I de-
cided I was going home, too "
DANIEL CONSTRUCTION CO.
Lions of all was a joining of action, if only by "me, too,"
to protest Respondent's request that they work, while in
wet clothes, in near-freezing and wind-biting conditions.
This "me, too" joinder (the speaker and listener of Root-
Carlin) is sufficient to constitute concerted activity
where employees "relied in any measure on the other
when each refused" to work.. Meyers at 497.
In addition, the employees' individual thoughts make
no difference. In Advance Cleaning Service, 274 NLRB
942 (1985), where the employees left work and refused
to work overtime because of a heavy snowstorm, the
Board answered the employer's claim that the employ-
ees' action was not concerted by adopting without com-
ment the following comments of the administrative law
judge, fn. 3:
To the extent that every individual's thoughts are
private and probably never completely known to
another each of his or her decisions is an individual
decision, but when two or more employees, having
each made an individual decision, join together in
group action toward a commonly desired objective
that action is concerted activity regardless of each
individual's reasons for joining in it. The Act is con-
cerned with concerted activity, not concerted
thought. Any contention that a failure of all partici-
pants in a group activity to entertain identical rea-
sons for engaging in that activity renders the activi-
ty individual rather than concerted is plainly with-
out merit. So too is Respondent's argument that
here employees did not act concertedly because
they decided individually not to work overtime.
Whatever reasons they might have entertained for
not wanting to work overtime the alleged discrimin-
atees and Corn acted as a group in refusing to stay
past 4 p.m. This action was concerted because it
was a shared activity, Meyers Industries, 268 NLRB
493 (1984), and protected because it concerned
hours of work. Respondent knew the activity was
concerted, knew it concerned a refusal to work
overtime, and threatened to discharge and did dis-
charge employees for engaging in this protected
concerted activity.
Accordingly, I find that Wilcher, Arsenault, and Tho-
masson engaged in concerted activities. See also Service
Machine Corp., 253 NLRB 628 (1980); Smithfield Packing
Co., 258 NLRB 261 (1981); Hudson T. Marsden, 259
NLRB 909 (1982), enf. denied 701 F.2d 238 (2d Cir.
1983). Metheny's situation is somewhat different. He
joined in the "me, too" action of the other employees
sometime after the others left the worksite. However, by
chance, he met the others in the truck to return to the
parking lot and joined the others when they went to the
payroll office. There, Wilcher complained to Armstrong
about the denial of the early-out pass, a conversation
which Metheny joined. Wilcher and Metheny returned
to the worksite to work out their joint problem of
having left the worksite; and it appears that their action
was in furtherance of a common goal to avoid working
while they were cold and wet. I conclude that Metheny
engaged in the concerted action in which the three other
799
employees engaged. His conversation in the truck with
the other employees that,they were not going to work in
those conditions demonstrates a measure of reliance of
the others' refusal to work.6
In any event, even if Metheny's activity were not con-
certed, if Respondent believed that it was, then Respond-
ent violated Section 8(a)(1) of the Act. Monarch Water
Systems, 271 NLRB 558 (1984). There is no direct evi-
dence that Ailstock was told by Neil anything other than
that the employees did not want to work in the rain.
However, I find it improbable that Neil would not have
explained to Ailstock that the water prevented the em-
ployees from getting their rain gear and that both he and
the employees were wet. Indeed, Ailstock knew that, in
order to get to the gang box, Neil required a crane to
transport him in a man basket to the bottom of the
intake. In addition, I find that all four employees told
Armstrong they were wet and cold and that was the
reason they left their jobsite. Armstrong's reports and
testimony corroborate that at least two told her that, and
I have misgivings about her candor with respect to the
other two.7 Armstrong had personally talked to Wilcher
and Metheny and had been told by Walker that Arsen-
ault and Thomasson had also been at the personnel office
to obtain their early-out passes. She relayed to Cato that
all four employees had left their worksite, and I infer
that she must have explained at least some of the circum-
stances.
In addition, I discredit Armstrong's and Ailstock's tes-
timony that Armstrong did not name the employees in-
volved. When Cato spoke to Ailstock from Armstrong's
office, he had previously been told the names of at least
Wilcher, Thomasson, and Arsenault, according to Arm-
strong's testimony. I find it improbable that Armstrong
did not mention Metheny, whom she also saw. That
Cato then called Ailstock to tell him that some employ-
ees were at personnel and to find out who they were is
incredible. More probable is that Cato wished to confirm
the circumstances of the employees' leaving, but not
their identity which he then knew. I find, therefore, that
Ailstock knew the identity of the four employees and as-
sumed that the four had together refused to work. On
that basis, he decided to discharge all of them. There is
nothing to show that he made this determination on the
basis that each employee, individually, left the worksite.
Under Monarch, Ailstock's belief that the action was
s Metheny testified- "They decided they were going home; . I de-
cided I was going home, too."
4 Walker testified that Metheny, Arsenault, and Thomasson each stated
"rain and cold and stuff" as the reasons each wanted to leave There is
no reason why these employees would withhold that same information
from Armstrong. I credit the employees' testimony. In discrediting Arm-
strong , I find that she attempted to bolster Respondent 's case by insisting
that the employees were aware of Respondent's rule of conduct provid-
ing for discharge in the event an employee left the worksite That rule
was a relatively recent one (the prior one provided only for reprimand)
and, although all the employees conceded that they were given a copy of
the rules when they were employed, the rules they received provided
only for a warning and not discharge . Armstrong's testimony that each
time the rules were changed , employees were given new copies of the
rules is not supported either by the signed receipts for the rules signed by
the employees or by the number of receipts contained in Respondent's
personnel files
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted is sufficient to bring Metheny within the pro-
tections of the Act. Finally, although Respondent con-
tends that Ailstock alone made the decision to terminate
the four employees, it is clear that he checked with Arm-
strong, an admitted supervisor, before doing so and
asked for her approval, Surely, she knew all the facts re-
garding the concerted activity of the four employees
when she ratified Ailstock's proposal to discharge them.
Respondent further contends that the employees' walk-
out was not protected. The Board, however, in Marsden,
where the employees walked out because of the rain, and
in Advance Cleaning, where the employees walked out
because of the snow, found the activities. to be protected.
With due respect to the views expressed by the Second
Circuit in Marsden, Washington Aluminum, 370 U.S. at
17, recognized that:
[C]oncerted activities by employees for the purpose
of trying to protect themselves from working condi-
tions as uncomfortable as the-testimony and Board
findings showed them to be in this case are unques-
tionably activities to correct conditions which
modern labor-management legislation treats as too
bad to have to be tolerated in a humane and civil-
ized society like our.
The Board, whose decisions I am bound to follow,s
has not insisted that the employees' refusal to work must
be caused by some event which the employer can
remedy. Rain, as in Marsden, or snow, as in Advance
Cleaning, are sufficient events which employees may le-
gitimately refuse to tolerate. In any event, in a sense, Re-
spondent caused the employees' discontent in this pro-
ceeding. It supplied the rain gear; as a matter of custom,
the rain gear, was kept in the gang box and, unless the
employees had been forewarned that it would storm on
March 21, they had no way to protect themselves from
the weather once the gang box, became inaccessible.9
They were asking Respondent to issue them early-out
passes when employees became wet. A means of protest-
ing their wet clothes and the denial of early-out passes
was for the employees to cease work, go home, and get
into dry clothes. That they did.1 ° Each stated an intent
to return the following day. The stoppage was not part
of a plan or pattern of intermittent action inconsistent
with a genuine withholding of work or strike. Bird Engi-
neering, 270 NLRB 1415 (1984), cited by Respondent, is
inapposite. There, the employees protested a new policy
prohibiting them from leaving the premises during their
work shifts by following their usual practice and clock-
ing out at lunchtime. It was because the employees at-
8 Waco, Inc., 273 NLRB 746 at 749 fn. 14 (1984).
8 Armstrong testified that substitute rain gear was obtainable at the
supply shack where the employees sheltered themselves The employees
credibly testified that no rain gear was there, and not one of Respond-
ent's representatives corroborated Armstrong's testimony There was a
method to obtain rain gear at the bottom of the mountain, but the em-
ployees' understanding was that new gear was obtainable only upon ex-
change of the old gear, such as when the old rain gear was ripped or
torn In any event, rain gear would hardly be sufficient to cure the em-
ployees' wet clothes, which is, with the weather, what they were com-
plaining about
10 The employees had worked in bad weather before, but never when
they were forced to stand in the rain and become soaked.
tempted both to remain on the job and to determine for
themselves which terms of employment they would ob-
serve that the Board found no violation when they were
dismissed. However, the Board, at 1415 fn. 3, distin-
guished their action from the action of the four employ-
ees in this proceeding, as follows:
If the employees had chosen to demonstrate their
opposition to the lunchbreak rule by participating in
a work stoppage or similar form of conduct then
the protections of the Act might have applied.
However, here, they simply attempted to have it
both ways-avoiding the involvement in alabor dis-
pute and deciding for themselves which rules to
follow and which to ignore. The Act does not pro-
tect this form of conduct.
Finally, Respondent argues that the employees' action
was "in deliberate defiance of a known work rule." If a
unilaterally issued work rule can bar the employees from
protected activity here, then any employer can meaning-
fully abrogate Section 7 rights. The Supreme Court has
emphatically rejected such a proposition. Washington
Aluminum, 370 U.S. at 16. Having found that Ailstock
knew that the four employees concertedly left their
worksite because they were wet and cold, I find that
those facts motivated him in discharging the employees
and find and conclude that Respondent violated Section
8(a)(1) of the Act, as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discharged Carl E.
Wilcher, Doug Metheny, Henry Thomasson, and Jacque-
line Arsenault because of the protected and concerted
activities in which they were engaged, I shall recom-
mend that Respondent be ordered to offer immediate and
full reinstatement to Carl E. Wilcher, Doug Metheny,
Henry Thomasson, and Jacqueline Arsenault to their
former positions or, if no longer available, to substantial-
ly equivalent positions, without prejudice to their seniori-
ty or other rights and privileges, and make them whole
for any loss of earnings or any monetary loss they may
have suffered as a result of Respondent's unlawful con-
duct, less interim earnings , if any. The amount of back-
pay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corp., 231 NLRB 651
(1977).11 I shall also recommend that Respondent
remove from its files any reference to the employees' dis-
charges. Sterling Sugars, 261 NLRB 472 (1982).
i l See generally Isis Plumbing Co., 138 NLRB 716 (1962)
bANIEL CONSTRUCTION CO.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
e4112
ORDER
The Respondent, Daniel Construction Company, a 'Di-
vision of Daniel International Corporation, Bath County,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees
by discharging them for striking or otherwise' engaging
in protected concerted activity.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Carl E. Wilcher, Doug Metheny, Henry
Thomasson, and Jacqueline Arsenault immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and' make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the dis-
charges of Carl E. Wilcher, Doug Metheny, Henry Tho-
masson, and Jacqueline Arsenault and notify them in
writing that this has been done and that evidence of their
unlawful discharges will not be used as a basis for future
personnel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, -timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Bath County, Virginia facility copies of
the attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the -Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
12 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.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
801
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-'
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
. (e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees by discharging them for striking or otherwise
engaging in protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the National Labor Re-
lations Act.
WE WILL offer Carl E. Wilcher, Doug Metheny,
Henry Thomasson, and Jacqueline Arsenault immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their -seniority or any
other rights or privileges, and make them whole for any
loss of earnings they may have -suffered by reason of
their unlawful discharge by us, with interest.
WE WILL remove from our files any reference to the
discharges of Carl E. Wilcher, Doug Metheny, Henry
Thomasson, and Jacqueline Arsenault and notify them in
writing that this has been done and that evidence of their
unlawful discharges will not be used against them in any,
way'.
DANIEL CONSTRUCTION COMPANY, A Di-
VISION OF DANIEL INTERNATIONAL