Irvin H. Whitehouse & Sons Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 997 (N.L.R.B. 1980)

IRVIN H. WHITEHOUSE & SONS COMPANY
Irvin H. Whitehouse & Sons Company and Delmar
H. Cook, Jr., and Albert E. Davidson. Cases
33-CA-3282-1 and 33-CA-3282-2
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 31, 1979, Administrative Law Judge
Bernard Ness issued the attached Decision' in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision. The General Counsel also
filed a motion to strike portions of Respondent's
exceptions and brief, and Respondent filed a re-
sponse. 2
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
briefs3 and has decided to affirm the rulings, find-
ings, 4 and conclusions of the Administrative Law
I On June 12, 1979, the Administrative Law Judge filed an Errata to
his Decision. No exceptions were filed and we herein correct the Deci-
sion accordingly.
2 The General Counsel's motion contends that Respondent has at-
tempted to introduce in its exceptions and brief evidence which was not
proffered at the hearing and is therefore untimely Further, the General
Counsel contends that the document which Respondent now would have
the Board consider concerns a union, a contract, and issues not involved
in this case. We have considered the motion and Respondent's response
and we herein grant this motion
a Respondent's request for oral argument is hereby denied because the
record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
We find no evidence in the record of union animus to support the Ad-
ministrative Law Judge's finding that the discharge of Delmar Cook and
Albert Davidson violated Sec 8(a)(3) of the Act We herefore delete
from the Administrative Law Judge's Decision the references to Sec.
8(a)(3) in his Conclusion of Law 3 and in the section of the Decision enti-
tled "The Remedy." Respondent's unfair labor practice as to the two dis-
charges and refusal to rehire constitutes a violation of Sec. 8(a)(1) alone
We shall modify the recommended Order and notice accordingly
Member Jenkins agrees that the contractual arbitration clause, read in
light of the clause limiting an arbitrator's remedy to liquidated damages
or fines, constitutes inadequate consideration upon which to predicate a
no-strike clause under the rule of Local 174, Teamsters, Chauffeurs, Ware-
housemen & Helpers of America v. Lucas Flour Co , 369 U.S. 95 (1962) He
would, however, further find that the arbitration provision explicitly
states only that the Joint Local Trade Board receive all grievances Since
there is no expressly imposed duty on any party to submit grievances,
resort to arbitration is permissive rather than mandatory as required by
Lucas Flour Member Jenkins would. therefore, find for this additional
reason that the Board is not obligated to imply a no-strike clause so as to
render the walkout herein unprotected
252 NLRB No. 140
modified herein.5
The Administrative Law Judge found that the
strike engaged in by employees Delmar Cook and
Albert Davidson was protected concerted activity.
He found that the Joint Local Trade Board's reme-
dial authority when acting as a board of arbitration
was restricted by the collective-bargaining agree-
ment to fines or liquidated damages. The Adminis-
trative Law Judge reasoned that, in order to
remedy a safety violation, the additional power to
require the correction of unsafe working conditions
constitutes the necessary consideration upon which
to imply a no-strike obligation under Lucas Flour,
supra.
Our dissenting colleague correctly points out
that the Supreme Court in Gateway Coal6 extended
the Steelworkers Trilogy's 7 presumption of arbitra-
bility to safety disputes. However, in our view the
presumption here has been successfully rebutted for
the reason advanced by the Administrative Law
Judge.
While the collective-bargaining agreement gener-
ally gives the Joint Local Trade Board the authori-
ty to "adjust disputes and grievances that may
arise," section 28, the occupational safety clause,
neither directly states nor implies that the parties
shall submit safety disputes to final and binding ar-
bitration. Further, as our colleague notes concern-
ing liquidated damages, while several clauses do
provide specific amounts for violations, the health
and safety clause is silent on this or any remedial
alternative to a fine.
These matters raise precisely a question contem-
plated by the Supreme Court in its concluding pro-
viso to Lucas Flour quoted, but without comment,
by our colleague. The Court specifically left open
the scope of an implied no-strike clause where, as
here, the parties have a general commitment to
submit disputes to binding arbitration but doubt
exists as to whether a particular type of dispute has
been made arbitrable.
Our doubt as to the parties' intentions with re-
spect to arbitration of safety grievances arises be-
cause, first, the collective-bargaining agreement's
' For the reasons set forth in Hickmott Fods Inc., 242 NlRB 1357
(1979). we find that a broad injunctive order as recommended hb the Ad-
ministrative Law Judge is not warranted. Respondent, insofar as the
record shous, has engaged in three separate violations f Sec 8(a)(1)
Since Respondent has not been shown to have a "proclivity to violate the
Act" or to have "engaged in such egregious or widespread misconduct as
to demonstrate a general disregard for the employees' fundamelntal statu-
tory rights," we find, under the facts of this case, that a narrow "in ans
like or related manner" order will effectively protect those rights
Ga tcau Coal Co. v United Mine Workers of Amerlua, 414 U S. 368
(1974)
ltnited Stel*orcrke of A.merica v merican Afanufaeiuring Co,. 363
U S S',4 (9i) l inited Steelork'rs oi.-4merica tlrrimor & Gulf .auga-
tion Co., 363 U S 574 (1960)l; United St'eirirker of America v. Enterprise
[Bhel & C (ur Corp., 363 S 593 ( 19' )
997
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
remedial provision does not extend to such griev-
ances. Also, the record reveals that no safety griev-
ance ever resolved short of arbitration involved the
correction of unsafe working conditions and that
this is the first safety grievance to reach the arbi-
tration stage under this contract. Further, Eugene
Moore, the Union's business agent, testified that the
parties normally relied on OSHA8 and its statutory
authority to order the correction of unsafe working
conditions.
We are therefore of the view that the parties did
not intend their contract's arbitration provision to
attach to section 28 because of their extra-contrac-
tual means of seeking safety related remedies. Ac-
cordingly, we will not imply a no-strike clause so
as to render unprotected Cook's and Davidson's
walkout to protest unsafe working conditions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Irvin H. Whitehouse & Sons Company, Louisville,
Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraphs l(b)
and (c):
"(b) Discharging or otherwise discriminating
against employees for striking or engaging other-
wise in concerted activities protected by Section 7
of the Act.
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBI R PINiI.IO, dissenting:
Contrary to my colleagues, I would reverse the
Administrative Law Judge and dismiss the com-
plaint in this case. The determinative issue on
which we disagree is whether the arbitration provi-
sion of the collective-bargaining agreement in this
case is sufficient to create an implied obligation not
to strike over disputes subject to arbitration under
that provision. In my opinion, the contractual arbi-
tration clause involved here does give rise to an
implied no-strike obligation. Therefore, I would
find that Respondent did not violate Section 8(a)(l)
of the Act when it discharged employees Cook and
()ccupatlonal SafetN and Health Adnmilt lratilon, L. S Department of
L.abor
Davidson for striking over a safety dispute which
was subject to final and binding arbitration under
the contract.
The facts in this case may be stated briefly. Re-
spondent was a subcontractor performing painting
work on a construction site from May to Decem-
ber 1977 and had agreed to be bound by the collec-
tive-bargaining agreement between the Union and
the Painting and Decorating Contractors Associ-
ation in the area for this job. Between May and
July 1977, employee Cook, who was the Union's
steward at the jobsite, complained to Respondent's
foreman, Arnold, on several occasions about unsafe
working conditions on the job, including the lack
of protective gloves and the open storage of explo-
sive chemicals in the jobsite trailer.9 On July 12,
1977, employee Davidson suffered chemical burns
on his hands while working with chemicals in the
jobsite trailer because Respondent had not pro-
vided protective gloves. On July 20, 1977, Cook
left work early due to illness. Before work on July
21, 1977, Cook filed a charge with OSHA about
Respondent's improper storage of dangerous
chemicals in the jobsite trailer. When Cook report-
ed for work that day, Foreman Arnold criticized
Cook for leaving work early the day before with-
out speaking to Arnold. After some argument,
Cook and Davidson told Arnold that they would
not work under the unsafe conditions existing in
the jobsite trailer. They left the jobsite after being
warned by Arnold that he would not take them
back. They attempted to return to work on July
22, 1977, and on three later occasions, but were not
admitted. OSHA inspected the jobsite on July 22,
1977, and cited Respondent for several violations.
The collective-bargaining agreement gives the
Joint Local Trade Board the authority "to adjust
disputes and grievances that may arise" and "to in-
terpret this agreement so as to give force and effect
to the intent, purpose and meaning of this agree-
ment." The contract provides that the Trade Board
"shall receive all complaints in writing against any
contractor signatory to this agreement" and that, if
the Trade Board "should fail to agree upon any
matter before it," the matter shall be referred
through several steps to final and binding arbitra-
tion. The contract gives the Trade Board the au-
thority "to impose liquidated damages to which all
parties signatory agree, upon any of the contractors
signatories [sic], or such penalties as are laid down
in this agreement, for any violation of the agree-
" ()n olne occasion, Cook told Arnold about an explosion that had oc-
curred at the jobsite trailer on his previous job, in which two employees
were seiouslv injured, and stated that conditions at Respondent's jobsite
trailer were very similar to the conditions extsting at the other jobsite
trader before the explosion
998
IRVIN H. WHITEHOUSE & SONS COMPANY
ment." It further states that the Trade Board "is
empowered to penalize or recommend to the
[Union] to declare unfair such contractors signator-
ies [sic] who in the sole opinion of the Board have
violated this agreement." Although the contract
states that "[t]he Employer, the Union and employ-
ees will cooperate in the prevention of accidents
and in the protection and promotion of the safety
and health of employees" and that "[t]he Employer
shall be responsible for furnishing protective equip-
ment as required to meet applicable [Federal and
state] standards," the contract sets forth no specific
penalties or liquidated damages for violations of
these clauses. 0
After Respondent refused to reinstate Cook and
Davidson, the Union filed charges with the Trade
Board alleging that Respondent refused to correct
unsafe conditions at the jobsite and refused to
follow the contractual referral procedures when it
failed to accept Cook and Davidson for further em-
ployment. The Trade Board imposed a fine of $250
upon Respondent for each of these violations of the
agreement, but did not order Respondent to take
any affirmative remedial actions, such as correcting
the unsafe working conditions or reinstating Cook
and Davidson with backpay. However, the safety
problems had already been remedied at the time of
the Trade Board's decision as a result of the OSHA
inspection. The Union's business representative,
Moore, who had been a member of the Trade
Board for over 20 years, testified without contra-
diction that in his experience the Trade Board had
never ordered any employer to correct a safety
problem, to reinstate any employees with backpay,
or to take any other affirmative actions not speci-
fied in the contract. He testified that the Trade
Board did not have the authority under the con-
tract to order such remedies, but rather could only
fine employers, order employers to perform specif-
ic actions spelled out in the contract, or impose
those penalties and remedies specifically set forth
in the contract for violations of certain sections.
My colleagues in the majority conclude that the
contractual provision limiting remedies for viola-
tions of the agreement to fines or liquidated dam-
ages constitutes inadequate consideration upon
which to predicate an implied no-strike agreement
under the Supreme Court's decision in Lucas
10 Other sections of the contract do set forth specific penalties for vio-
lations of their provisions. For example, several sections provide for fines
in specific amounts ranging from $10(X to Sl.O(X) for failure to comply
with their provisions Another section dealing with the time for receipt
of paychecks provides that no work shall he performed by any employee
fior the Employer until the Employer complies with the provisions of that
section. Finally, certain sections provide that the Employer must perform
specific actions. such as pa! ing emplo ees a certain amount of money for
travel time or as showup pay
Flour. They would adopt the Administrative
Law Judge's finding that there was no quid pro quo
present from which a no-strike agreement could be
implied under Gateway Coal. 2 Therefore, in the
absence of a no-strike agreement rendering the wal-
kout unprotected, the majority finds that Respond-
ent violated Section 8(a)(1) of the Act by discharg-
ing Cook and Davidson for engaging in a protected
strike over unsafe working conditions. I disagree.
There is nothing in either Lucas Flour or Gateway
Coal to support the majority's conclusion that the
Supreme Court would consider the adequacy of
the remedies in the arbitration clause of the con-
tract to have any bearing upon whether a no-strike
obligation would be implied, and the majority has
cited no other cases in support of this novel propo-
sition. An analysis of the Supreme Court decisions
is instructive on this point.
The Supreme Court first recognized the princi-
ple of an implied no-strike agreement arising out of
the parties' express agreement to arbitrate griev-
ance disputes in Lucas Flour, where it affirmed an
award of damages to an employer for business
losses due to a strike in violation of an implied no-
strike agreement. The Court found that the con-
tract expressly imposed upon both parties the duty
of submitting the dispute in question to final and
binding arbitration and that therefore a strike over
this dispute violated the contract. The Court stated
that its decision as to the existence of an implied
no-strike obligation was based on accepted princi-
ples of traditional contract law' 3 and on the na-
tional labor policy favoring arbitration as a substi-
tute for economic warfare. The Court limited the
application of this principle, however, as follows:
What has been said is not to suggest that a
no-strike agreement is to be implied beyond
the area which it has been agreed will be ex-
clusively covered by compulsory terminal ar-
bitration. Nor is it to suggest that there may
not arise problems in specific cases as to
whether compulsory and binding arbitration
has been agreed upon, and, if so, as to what
disputes have been made arbitrable. 14
The Supreme Court later applied this principle in
Gateway Coal, where it affirmed the granting of in-
junctive relief against a strike in violation of an im-
' Local 174, 7eamsters, Chauffeurs. Warehousemen Helpers of Amer-
ica ' Lucas Flour Co. 369 ILS 95 (1962).
12 G(at'eway Coal Co. v. United Mine Workers of .4merica. 414 US. 368
(1974)
" In lixtlle Workers Union of America v Lincoln Mills oJ'Alaha.nma,
353 US 448 1957). the Court had noted that an agreement to arbitrate
grievance disputes is normally the quid pro quo for an agreement not to
strike.
l.al 174 laster, (hfr. h s Warhouemen & Htelpers o Anmer-
ca Lucas Iour ('Co. upra at l)6
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied no-strike obligation. The strike there involved
a safety dispute which the union had refused to ar-
bitrate under the collective-bargaining agreement.
The Court first analyzed whether the contract im-
posed a compulsory duty to arbitrate safety dis-
putes and found that it did. In making this determi-
nation, the Court found that the Federal labor
policy favoring arbitration applied to disputes over
safety conditions, that therefore the presumption of
arbitrability applied to such disputes, and that the
arbitration provisions of the contract involved
were sufficiently broad to encompass the dispute in
question. The Court then analyzed whether the
duty to arbitrate this dispute gave rise to an im-
plied no-strike obligation and found that it did. In
resolving this issue, the Court noted that a no-
strike obligation, either express or implied, is the
quid pro quo for an undertaking to arbitrate dis-
putes and delineated the relationship between the
two duties as follows:
[A]n arbitration agreement is usually linked
with a concurrent no-strike obligation, but the
two issues remain analytically distinct. Ulti-
mately, each depends on the intent of the con-
tracting parties. It would be unusual, but cer-
tainly permissible, for the parties to agree to a
broad mandatory arbitration provision yet ex-
pressly negate any implied no-strike obligation.
. . .Absent an explicit expression of such an
intention, however, the agreement to arbitrate
and the duty not to strike should be construed
as having coterminous application." 5
Since there was no express negation of the implied
no-strike agreement, the Court affirmed the order
enjoining the strike and directing the union to arbi-
trate the dispute.
The Supreme Court has thus placed a heavy
burden on the union to expressly disavow any in-
tention to create an implied no-strike obligation
when agreeing to final and binding arbitration of
disputes. There is no evidence of such an express
disavowal in this case. The Court mentioned only
two other criteria in assessing whether the parties
intended to create an implied no-strike agreement
in Lucas Flour and Gateway Coal: Whether the dis-
pute in question was covered by the arbitration
clause and whether arbitration was made final and
binding. There is no question that the contract in
this case provides for final and binding arbitration,
since the arbitration provisions expressly state that
decisions by the impartial arbitrator "shall be final
and binding upon all parties hereto." However, my
colleagues have expressed "doubt" as to whether
safety disputes are covered by the arbitration pro-
' Gateway Coal Co. v. United Mine Workers of America, supra at 382.
visions of the contract. In this regard, I note that
the parties apparently believed that safety disputes
were arbitrable under this contract since they actu-
ally submitted the dispute involved in this case to
the Trade Board. Furthermore, the contract gives
the Trade Board authority to adjust any dispute
that arises and specifically mentions the protection
of employee safety as one of its purposes. Clearly,
this contractual language is broad enough on its
face to cover such a dispute over working condi-
tions; but, in light of the strong presumption of ar-
bitrability which applies, there is no question in my
mind that the safety dispute here is covered by the
arbitration provisions of the contract.
I see no reason to create an additional criterion
for determining whether the parties intended that a
no-strike agreement be implied when there is no
support for this proposition in either case law or
national labor policy. The Supreme Court ex-
pressed no concern in Lucas Flour or Gateway Coal
as to the actual mechanics of the system by which
the parties elected to enforce their agreement, so
long as the system ultimately resolved disputes in a
final and binding way. This is in accord with the
strong national policy favoring the arbitration of
labor disputes as a substitute for industrial strife.
While one may dispute whether or not the penal-
ties agreed upon by the parties here are the most
effective means possible for remedying violations
of the contract, the Board should not substitute its
judgment for that of the parties on such an issue.
The Union may have decided that the prompt im-
position of a substantial monetary fine for each
safety violation was a more effective deterrent than
an affirmative order to correct such violations,
which carried no penalty and might be difficult to
enforce, especially in light of the availability of in-
junctive remedies for safety violations under
OSHA. Naturally, if the contract provided an arbi-
trator with no authority to remedy any violations
of the agreement, I would not hesitate to find that
such an empty arbitration agreement could provide
no consideration for an implied no-strike obliga-
tion. However, where the parties have agreed to
substantial penalties as remedies for violations of
their agreement, I am reluctant to interfere with
their judgment or to deprive them of the flexibility
necessary for effective collective bargaining.
Therefore, as long as the contract contemplates
some method for enforcing its provisions in a final
and binding manner, I would not inquire into the
adequacy of the specific remedies provided for in
the arbitration provisions of the contract in decid-
ing whether or not to imply a no-strike agreement.
Inasmuch as the arbitration provisions in this case
clearly meet the Supreme Court's tests for implying
1000
IRVIN H. WHITEHOUSE & SONS COMPANY
a no-strike obligation, I would find that the strike
over a dispute covered by the contractual arbitra-
tion clause was unprotected, and I would dismiss
the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Re-
lations Act and has ordered us to post this notice
and we intend to carry out the Order of the Board
and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through repre-
sentatives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge or take any other
disciplinary action against employees, or
threaten to do so, because employees strike or
engage otherwise in concerted activities pro-
tected by the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL make whole Delmar H. Cook and
Albert E. Davidson for any loss of earnings
they may have suffered as a result of their dis-
charge, together with interest.
IRVIN H. WHITEHOUSE & SONS
COMPANY
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon
charges filed on July 25, 1977, by Delmar H. Cook, Jr.,
and Albert Davidson, individuals, in Cases 33-CA-3282-
I and -2, respectively, against Irvin H. Whitehouse &
Sons Company, herein called the Respondent, a com-
plaint issued on February 23, 1978. The complaint al-
leged that the Respondent unlawfully threatened and
then discharged and refused to reinstate Cook and Da-
vidson on July 21, 1977, because they engaged in union
and/or protected activity and the Respondent thereby
violated Section 8(a)(1) and (3) of the Act. The Respond-
ent has denied the commission of any unfair labor prac-
tices. Hearing was held before the me on September 27-
28, 1978, at Peoria, Illinois.
Upon the entire record and my observation of the wit-
nesses, and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation with its
office and principal place of business located in Louis-
ville, Kentucky, is engaged in the business of industrial
and commercial painting and during the year 1977 was
engaged in painting operations at a jobsite located at El
Paso, Illinois. During the 12-month period preceding the
issuance of the complaint, the Respondent furnished
services valued in excess of $50,000 to points outside the
State of Illinois. The parties agree, and I find that the
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find that International Broth-
erhood of Painters and Allied Trades, Local Union No.
157, AFL-CIO, herein called the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
Ill. THE AI.lEGED UNFAIR LABOR PRACTICES
From the beginning of May 1977 through December
1977' the Respondent was engaged in a painting oper-
ation as a subcontractor to general contractor McKee
Construction Company at El Paso, Illinois. Prior to start-
ing its operations at El Paso, the Respondent and the
Union entered into a memorandum of understanding
whereby the Respondent agreed to abide by the collec-
tive-bargaining contract then in effect between the Union
and the Peoria Chapter of the Painting and Decorating
Contractors of America. Harold Arnold was the Re-
spondent's project director at the jobsite. The Respond-
ent obtained painters by referral from the Union except
for John Hamner whom the Respondent brought in from
another jobsite.2 The Respondent utilized a trailer at the
jobsite as its office. It was also used as a place for stor-
age of equipment and materials for mixing paint and as a
place for changing clothes. A security post was main-
tained at the front gate by guards to keep unauthorized
persons from entering the jobsite. Arnold would notify
the guards whenever an employee was hired or terminat-
ed so that the guard would know to whom to grant
entry to the premises.
I All dates hereinafter refer to 1977 unless otherwise indicated.
2 Hamner was a project director for the Respondent at another jobsite
immediately prior to coming to El Paso. He was considered a leadman at
the El Paso site When Arnold left the jobsite at the end of September,
Hamner became the project director The General Counsel contends that
Hamner was a supervisor before becoming the project director The Re-
spondent takes a contrary position. A finding of his supervisory status is
unnecessary to the ultimate disposition of this case but the evidence falls
short of showing he was a supervisor
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among the painters referred by the Union were Cook,
Davidson, and Dale Short. The painters worked from
3:30 p.m. to midnight. The work force varied somewhat
but during the relevant period, it consisted of 4-5 paint-
ers. Cook was recognized as the union steward on the
job. Cook and Davidson ceased work on July 21. The
General Counsel contends that they engaged in a pro-
tected strike in protest over the safety conditions at the
job and the Respondent discharged them and then re-
fused to reinstate them on July 22 when they attempted
to return to work. The General Counsel does not rely
upon a Section 502 theory. The Respondent's position is
that Cook and Davidson both quit on July 21 and pursu-
ant to the company policy against rehiring employees
who quit they were not reinstated or rehired. The Re-
spondent further contends that even if the two alleged
discriminatees did strike, such strike was unprotected be-
cause the terms of the collective-bargaining contract
imply a no-strike provision.
On a number of occasions, Cook complained to
Arnold of the unsafe conditions at the jobsite. He com-
plained about the lack of safety shoes for the men to
work on the extension ladder. Thereafter, lifts were
brought in and it became unnecessary to work on the
ladder. He spoke to Arnold about an explosion in the
trailer at his previous place of employment, causing inju-
ries to two employees. Cook spoke of the conditions
being similar at the Respondent's trailer. Cook com-
plained about the exposed drums of paint thinner and
paint stored in the trailer, the absence of "no-smoking"
signs there3 and that only one of the three doors in the
trailer was available for entry or exit, the other two
doors being locked. Cook also complained about the lack
of rubber gloves to protect the hands. I discredit Ar-
nold's testimony that the only complaint about safety
prior to July 21 was the request for rubber gloves. On
July 12, shortly after the shift began, Davidson suffered
chemical burns to his hands while mixing paint and
cleaning equipment without gloves. With Arnold's per-
mission, Cook drove Davidson to the hospital for medi-
cal attention. Neither returned to work that evening. The
following day, Cook told Arnold the employees should
be supplied with rubber gloves otherwise he would con-
tact the union business agent. On July 19, Arnold passed
out timecards to the employees for them to verify the
hours worked the prior week, Cook observed that his ti-
mecard credited him for 2 hours only on July 12, the
day he had taken Davidson to the hospital. Cook com-
plained to Arnold that he should have been credited for
4 hours. When Arnold refused his request, Cook refused
to sign his timecard. That evening, Cook telephoned
Business Agent Moore and complained about being cred-
ited for only 2 hours on July 12. That same evening,
before Moore had an opportunity to call Arnold, he re-
ceived a call from Arnold who told him of Cook's
demand for 2 hours of additional pay. Moore testified he
told Arnold that Cook was entitled to the 2 additional
hours but Arnold said it was unfair. On July 20, after
Cook reported for work, Arnold told him that he had
spoken to Moore and would not pay Cook the additional
3 Cook admitted he smoked in the trailer.
2 hours. Shortly thereafter, Cook told Hamner and Da-
vidson that he was going home because he was ill.
Arnold was not in the area at the time.
During the early afternoon of July 21, before Cook re-
ported for work, he filed a complaint with OSHA
against the Respondent. The complaint alleged unsafe
working conditions, including thinner and oil-based paint
being stored in the trailer, only one entrance and exit, no
fire extinguisher and "no-smoking" signs were not
posted. Cook and Davidson drove in to work together
that afternoon and Cook told Davidson he had filed a
complaint with OSHA. A conversation then ensued in
the trailer. Present were Short, Hamner, and Arnold, to-
gether with Cook and Davidson. Cook, Davidson, and
Short changed into their work clothes and then Arnold
asked Cook where he had been the day before-that he
had looked all over the site for Cook but could not find
him. 4 Cook replied he had told Hamner why he was
leaving. Arnold then said Cook should have reported to
him. Cook responded he did not expect to look all over
for Arnold. Cook then said it would be a better place to
work if Arnold cleaned up the conditions at the site and
referred to the open buckets of paint thinner, the paint
stacked in front of the trailer, the lack of no-smoking
signs, and only one exit from the trailer. Arnold an-
swered that as far as he was concerned the place was
cleaned up. Cook then said he was not going to work in
those unsafe conditions. When Arnold then asked if
Cook was quitting, Cook replied he was not quitting-he
just was not going to work until the unsafe conditions
were cleared up. Davidson then agreed with Cook and
said he would not work under the existing unsafe condi-
tions. Cook and Davidson then changed back into their
street clothes. Arnold said that if they left he would not
take them back. They left.' After Cook and Davidson
left the site, Arnold turned in their names to the guard at
the gate. The effect of this action was that they were not
to be admitted entrance to the jobsite. That evening
Cook told Moore what had occurred and Moore said he
would talk to Arnold. The next morning, July 22,
Arnold called Moore and said he wanted two painters to
replace Cook and Davidson. He told Moore that Cook
had complained about the safety conditions the night
before and he would not let the union steward run the
job. Moore agreed to send two painters. Moore then
called Cook and Davidson and told them to report to the
job that afternoon where he would meet them. When
Cook and Davidson reported to the jobsite, the guard
told them he had orders from Arnold not to let them on
the jobsite. They were refused entry. Moore then spoke
to Arnold at the jobsite. At the time, an OSHA employ-
' I do not credit Arnold's testimony that on July 20 he asked two or
three painters where Cook was but none knew. He could not name any
of the ones he asked but stated he did not ask Hamner, Davidson, or
Short At best, there was only one other painter on the shift Davidson
credibly testified he heard Arnold ask Hamner where Cook was and
Hamner replied Cook said he was sick and went home Hamner was un-
certain in his testimony whether Arnold had asked him
I The above recitation of this incident and conversation is based upon
the credited testimony of Cook and Davidson, substantially corroborated
by Short I found Arnold to be an unpersuasive witness and where his
testimony is inconsistent with the findings above, it is not credited. Spe-
cifically, neither Cook nor Davidson said they were quitting.
1002
IRVIN H. WHITEHOUSE & SONS COMPANY
ee was making an inspection pursuant to Cook's com-
plaint to OSHA. Short was present during most of the
conversation. Moore asked Arnold why the OSHA in-
spector was there. Arnold replied that Cook must have
filed a complaint. Moore then asked why Arnold did not
put Cook and Davidson back to work. Arnold responded
they had quit but admitted to Moore that they did not
actually say they quit. Moore stated they had not quit,
Arnold said he did not want them back on the job and
added that Cook was just trying to cause trouble.f
Arnold admitted in his testimony that he was aware that
Cook and Davidson had appeared at the front gate this
day. Cook and Davidson were sent to the job by Moore
pursuant to Arnold's request for painters. They again re-
ported on July 25, July 26, and on August 1. Each time
they were refused entry by the guard. Finally, Moore
sent other painters to the site who were hired by Arnold.
It should be noted the OSHA inspector cited the Re-
spondent for a number of safety violations as a result of
his inspection on July 22. (G.C. Exh. 4.) The Respond-
ent's operation at El Paso was completed in the latter
part of December.
Discussion and Analysis
It is well settled that a strike to protest working condi-
tions is a protected concerted activity in the absence of a
contractual provision to the contrary. In the instant case,
the record shows that Cook and Davidson engaged in a
strike because of the Respondent's failure to correct the
unsafe conditions at the jobsite. The Respondent's con-
tention that they quit their jobs is without merit. They
specifically told Arnold they were not quitting. When
they were leaving the premises Arnold told them he
would not take them back if they left. He did not direct-
ly tell them they were discharged but his words and sub-
sequent action served the same purpose. For immediately
thereafter, Arnold informed the guard that they were not
to be admitted entry to the jobsite. The very next day,
Cook and Davidson were ready to return to work on
Moore's suggestion. Cook had already reported the
unsafe conditions to OSHA and presumably expected
corrective action. Yet Arnold refused to lift the prohibi-
tion on their return. The Respondent also contends that
the contract imposed a duty to submit the dispute over
safety to the grievance procedure which provided for ar-
bitration and a no-strike intent should be implied.7 The
contract (G.C. Exh. 2) provided for a Joint Local Trade
Board composed of six members, three representatives
from the Union and three representatives from the
Peoria Chapter of the Painting and Decorating Contrac-
tors of America. The contract provided in relevant part
as follows:
4B.... In case the Joint Local Trade Board, Inc.
should fail to agree upon any matter before it, or
when an appeal is requested, they shall refer it to
the Executive Board of Local Union 157 and the
Executive Board of the Peoria Chapter of the Paint-
The above finding is based on the credited testimony of Moore, sub-
stantially corroborated by Short
7 See Gateway Coaol Co. s. United Mine Wobrkers of America, 414 U S
368 (1974)
ing and Decorating Contractors Association. If they
fail to agree upon any matter before it, they should
request the General President of the International
Brotherhood of Painters and Allied Trades, and the
President of the Painting and Decorating Contrac-
tors of America, to appoint a representative of their
respective organization to serve as conciliator to
bring about the settlement of the dispute. In case
these two parties fail to agree, they shall select an
impartial arbitrator who shall be satisfactory to all
members of the Trade Board, Inc. and shall render
a decision on the case. When a decision is reached
either by the Joint Local Trade Board, Inc., by the
conciliator or by the arbitrator, such decision shall
be final and binding upon all parties hereto.
4E. The Trade Board, Inc. shall be vested with the
power to adjust disputes and grievances that may
arise and shall be empowered to interpret this
agreement so as to give force and effect to the
intent, purpose and meaning of this agreement.
The Trade Board, Inc. shall receive all complaints
in writing against any contractor signatory to this
agreement or against any journeyman who is be-
lieved to be violating any of its provisions. All find-
ings and determinations of this Trade Board, Inc.
shall be consistent with all prevailing and applicable
Federal and State Laws.
4F. The Joint Trade Board, Inc. is vested with the
authority to impose liquidated damages to which all
parties signatory agree, upon any of the contractors
signatories, or such penalties as are laid down in
this agreement, for any violation of the agreement.
These damages shall be assessed in accordance with
the seriousness of the violation ...
28. The Employer, the Union and employees will
cooperate in the prevention of accidents and in the
protection and promotion of the safety and health
of employees.
The remaining portion of paragraph 28 relates to the
furnishing of protective equipment by the Employer.
In the instant case, Moore filed charges with the Joint
Local Trade Board contending that the Respondent did
not observe the proper safety conditions and did not
follow the referral provision when the Respondent re-
fused to reinstate Cook and Davidson. The Trade Board
thereafter imposed a fine'upon the Respondent for failing
to correct the safety conditions and for not abiding by
the referral procedure. No corrective action was ordered
by the board. 8 The unrebutted testimony of Moore dis-
closed that the board had no power to require correction
of unsafe conditions other than to impose additional fines
for repeated violations.9 I find no quid pro quo present
I The safety conditions were already remedied at the time of the hear-
ing before the board
g Moore has been associated with the Joint Trade Board as delegate
and secretary since 1957
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, I find that the strike engaged in by Cook and
Davidson was a protected concerted activity. It follows
that the Respondent thereupon effected their discharges
when Arnold barred them from entering the premises.
When Cook and Davidson reported at the site to report
for work on July 22, and this was known by the Re-
spondent, they were refused entry, the net effect being a
refusal to reinstate. Under the circumstances, the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
discharging Cook and Davidson on July 21 while they
were engaged in a protected strike; the Respondent fur-
ther violated the same provisions by refusing to reinstate
them on July 22. I further find Arnold's statement to
Cook and Davidson on July 21 that he would not permit
them to return to work if they engaged in the strike con-
stituted a threat to discharge them if they engaged in a
strike. I find such threat violative of Section 8(a)(l) of
the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Delmar H. Cook and Albert E. Da-
vidson on July 21, 1977, and refusing to reinstate them
on July 22, 1977, because they engaged in a strike, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
4. By threatening to discharge employees if they en-
gaged in protected concerted activities, the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l) and
(3) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent unlawfully dis-
charged Delmar Cook and Albert E. Davidson on July
21, 1977, and refused to reinstate them on July 22, 1977,
I shall recommend that the Respondent make them
whole for any loss of earnings and employee benefits
they may have suffered from July 22, 1977, to the date
the Respondent's operations at El Paso, Illinois, terminat-
ed. The amount of backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977).'0
10 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 1
The Respondent, Irvin H. Whitehouse & Sons Compa-
ny, Louisville, Kentucky, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other dis-
ciplinary action for engaging in union activities or any
other protected concerned activities.
(b) Discharging or otherwise discriminating against
employees to discourage union activities in support of In-
ternational Brotherhood of Painters and Allied Trades,
Local Union No. 157, AFL-CIO, or any other labor or-
ganization, or to discourage employees from engaging in
concerted activities protected by Section 7 of the Act.
(c) In any other manner, interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Delmar H. Cook and Albert E. Da-
vidson for any loss of earnings and other benefits they
may have suffered in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make availale to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Copies of the attached notice marked "Appen-
dix"' 2 on forms provided by the Regional Director for
Region 33, after being duly signed by the Respondent's
representative, shall be mailed by the Respondent to
each of the individuals who were employed at its El
Paso, Illinois, operation.
(d) Furnish to the Regional Director for Region 33
signed copies of the attached notice for posting by the
Union, if willing, at its offices and places where notices
to its members are customarily posted.
(e) Notify the Regional Director for Region 33, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
II In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
12 In the event 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1004