Morrison-Knudsen Co, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1968

173 N.L.R.B. 56 (N.L.R.B. 1968)

56 DECISIONS OF NATIONAL LABOR RELATIONS BORAD
Morrison-Knudsen Company, Inc. and Pile Drivers'
Local Union No. 2382 , affiliated with United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO. Case 19-CA-3933
September 27, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Or June 25, 1968, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Morrison-Knudsen Com-
pany, Inc., Boise, Idaho, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
1 As the record, exceptions and brief , in our opinion , adequately
present the issues and the positions of the parties , the Respondent's
request for oral argument is hereby denied
2 In agreeing with the Trial Examiner's conclusion that the dis-
charged employees were involved in activities protected by the Act, by
virtue of the permission received from Foreman Clary to hold their
meeting , we find it unnecessary to pass upon the Trial Examiner's
alternative assumptions regarding the legal consequences of the conduct
here complained of if the meeting were held to be a strike or work
stoppage
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
This proceeding under the National Labor Relations Act as
amended (29 U.S.C. Sec. 151 et seq., "Act"), on complaint of
General Counsel of the National Labor Relations Board issued
by its 19th Regional Director on March 27, 1968 (as amended
on May' 101), upon charge filed by the above Union on
February 12, was heard before me in Seattle, Washington, on
May 16, with all parties represented and participating through-
out and given full opportunity to present evidence, conten-
tions, proposed findings and conclusions, and briefs Briefs
received subsequent to the hearing have been considered,
together with the record2 made at the hearing Upon the basis
thereof and my observation of the witnesses, I make the
following
FINDINGS AND CONCLUSIONS
II PARTIES , JURISDICTION
At all material times, Respondent has been and is a
Delaware corporation with principal office and place of
business in Boise , Idaho, whence it engages in heavy building
and construction throughout the United States as well as
elsewhere. During the calendar or Respondent's fiscal year
immediately preceding issuance of the complaint, in the course
and conduct of that business Respondent purchased goods and
supplies valued in excess of $50,000 directly in interstate
commerce from suppliers outside of the State of Washington,
for use at Respondent's Joso Bridge, Washington, construction
project jobsite, the locale of Respondent's operation and
events here described.
I find that at all material times Respondent has been and is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, that at those times the
above Union has been and is a labor organization within the
meaning of Section 2(5) of the Act, and that assertion of
jurisdiction herein is proper.
III THE ALLEGED UNFAIR LABOR PRACTICES
A Issue
The ultimate issue presented is whether Respondent vio-
lated Section 8(a)(1) and (3) of the Act by terminating the
employment of 16 of its employees on January 30, and
refusing thereafter to reinstate or reemploy any of them,
i All dates here are in 1968.
2 Hearing transcript as corrected by Trial Examiner 's letter order of
May 31 and as set forth in attached Appendix B [omitted from
publication l
173 NLRB No. 12
MORRISON-KNUDSEN CO 57
because they engaged in concerted activities protected by the
Act.
B. Facts as Found
Since Respondent offered no witnesses, the facts as credibly
testified to by General Counsel's witnesses and here recounted
and found, stand uncontradicted upon the record
In January, Respondent was engaged in heavy construction
operations (its Job 2393) on a railroad span known as the Joso
Bridge, near Lions Ferry on the Snake River in Idaho.3
Respondent's operations there consisted of rebuilding or
reenforcing the existing concrete and steel span, involving
utilization of four crafts-piledrivers, ironworkers, operating
engineers, and teamsters Piledrivers, who poured concrete
around existing footings from below the subsurface riverbed to
about 80 feet above the surface worked at levels from 20 feet
subsurface on up, including ground or river level. Some
piledrivers commuted daily between the jobsite and homes 50
or more miles distant, while others rented cabins nearby and
confined their commuting to weekends. Respondent's pile-
drivers were organized as members of the Charging Party
Union
Foreman of the piledrivers on the Joso Bridge Project was
W. E Clary, with 16-18 piledrivers under him Hired as Job
Foreman by Respondent's Job or Project Superintendent
Dawsen (Dawson) around July of the preceding year (1967),
Clary's duties were to oversee the men and the job. Although
he was one of 3 foremen on the job,4 Clary, who-unlike the
other foremen-always remained on the ground, normally
issued instructions of the day to the other foremen, upon the
basis of directions received by him from Project Superinten-
dent Dawsen (his immediate supervisor). Clary also assigned
piledrivers to specific jobs and locations, kept track of their
time, and disciplined and discharged them.
Respondent's Joso Bridge Project had been encountering
various safety, as well as others industrial relations, problems.
Prominent if not principal among the safety problems in late
January was a defective handbrake on a tugger, creating a
substantial hazard to the lives of the piledrivers.6 A tugger is
an air-powered lifting device consisting of a reel or drum,
around which there is cable, to the end of which is attached an
object or objects lifted or lowered as the cable, feeding
through an overhead pulley, unwinds or winds on the rotated
reel or drum. The tugger was employed to raise heavy
equipment and supplies (including lumber and three to five
simultaneously lifted 20-foot long 'h-inch steel "rebars"
utilized as cores within poured concrete forms) to heights of
40-50 feet The safety problem involving the tugger was
created by an inoperative or defective handbrake. The hand-
brake is supposed to control the stopping and starting of the
movement of the cable and its supported load in mid-air; if it
fails, a potentially extremely serious hazard results to persons
below As described by witness McCarthy, "There are people
in the general area where you are doing this hoisting and not
only people, but the job itself, that if the load came down, it
would just wipe out everything in the general area." In place of
the inoperative or defective handbrake there had been impro-
vised a long iron bar, which was manipulated manually by one
man while another operated the tugger itself As credibly de-
scribed in the uncontroverted testimony of piledriver Cranor,
although mid-air loads had been efficiently halted and held in
mid-air by the tugger's regular handbrake, with the improvised
bar loads "would drop anywhere from one to three feet. Some-
times it dropped further and sometimes it stopped right where
they applied the brake " A closely related complaint of pile-
drivers was that Project Superintendent Dawsen would seem-
ingly take them to task or fault them for not working or
remaining underneath loads lifted by this tugger, notwith-
standing their having been expressly warned by the tugger
operator to stay clear of overhead loads.
Union Business Representative McCarthy, who serviced and
visited the Joso Bridge Project every week or two, had been
receiving numerous complaints from employees concerning
safety and related problems there At a December 19 (1967)
meeting with Company representatives, including Project
Superintendent Dawsen and Foreman Clary, "things were
patched up pretty well and it was agreed that they [i.e., the
Company] would change their manner of operation and they
would go along with the union regulations." However, in less
than a week thereafter McCarthy again began receiving
complaints, which continued regularly, necessitating a further
meeting with management at the jobsite on January 19, when
he and the shop steward again discussed the safety (as well as
supervision) problems with the Respondent's Project Manager
Fullbright and his foremen Notwithstanding this, on January
27 and 28 McCarthy was again notified by the shop steward
that "The same problem was persisting on the job and the men
were real perturbed about it and they would like to have me
[McCarthy] come down there to straighten it out ... at this
time it was safety . . they had a tugger on the job that was
not working mechanically." On January 29, employees Cranor
and Harter (according to their essentially mutually corrobora-
tive, uncontradicted, credited testimony), while briefly
standing clear of an overhead load of steel being raised by the
tugger, were approached by Project Superintendent Dawsen,
who "started cussing a little bit for standing there while we
were out of the way of the steel." Harter complained to the
steward for being "chewed" by Dawsen for following standing
safety operating instructions.
Since the safety problems, prominently the hazards pre-
sented by the improvised "brake" on the defective tugger and
Project Superintendent Dawsen's seeming expectation that
piledrivers should continue to work underneath heavy steel
loads held in mid-air by this improvised device, had not been
resolved by January 30, on that day (Tuesday) Union Business
3 The Joso Bridge is about 10 miles north of Starbuck , Washington,
and around V2 mile below Lions Ferry , Idaho, which is approximately
112 miles southerly of Spokane , Washington
4 Foremen receive 40¢ more per hour than rank-and-file piledrivers.
5 Project Superintendent Dawsen's issuing of direct instructions to
piledrivers , apparently bypassing foremen, in the face of contrary
instructions or practices , seems to have been a problem to the
piledrivers , as instanced below.
6 There were also other unresolved safety problems . For example,
according to the testimony of Foreman Clary, supervisory instructions
to discontinue loading scaffolds with bull hoses and headers when the
tops of forms were unfinished, had not been carried out because "we
hadn 't had another set of forms up." As another example (furnished by
piledriver Cranor), concrete was being poured from a bucket 30 feet
above piledrivers , into forms (about 30 feet long and 15 feet high)
before reinforcing the forms with snapties . Foreman Clary conceded
that safety complaints were voiced regularly at the Company 's Monday
noon safety meetings attended by piledrivers and other employees
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representative McCarthy journeyed 75 miles from his office in
Lewiston, Idaho, to the jobsite, where he was unable to locate
or meet with higher managerial or supervisory personnel.
Together with the shop steward, he therefore sought out
Foreman Clary and requested permission to hold a brief safety
meeting' in the jobsite dryshack Foreman Clary-Respond-
ent's only supervisor on hand at the time-acceded to this
request but made it clear to the steward that the men would be
docked in pay for time spent at the meeting 8 It was then a
few minutes past 12.30, the piledrivers having just returned
from lunch (12-12 30), during which it had been unfeasible
to discuss or complete discussion of these problems because of
the absence of quiet or privacy in the general lunchroom
shared with all others. Permission thus having been obtained,
the piledrivers discussed these safety problems and com-
plaints-namely, the hazardously defective tugger and the
apparent management expectation that they work under heavy
mid-air loads being elevated by the tugger-with their steward
and Union business representative in the privacy of the
dryshack for 15-20 minutes, from about 12 35 or so to
12.55. Meanwhile, Foreman Clary had succeeded in locating
and getting a message to Project Superintendent Dawsen about
what was going on. When the piledrivers' brief meeting was
over, their Union business representative (McCarthy) having
reassured them that he would take these matters up with
Dawsen and management, and the men were about to leave the
dryshack, suddenly Project Superintendent Dawsen burst in In
Foreman Clary's words, Dawsen "came barging through the
door and tore the latch off of it " Dawsen demanded to know
"what was going on " McCarthy's response that "There seems
to be a problem" met with Dawsen's rejoinder that he "could
settle all problems there," whereupon he discharged all of the
piledrivers (i e., all 16, the entire crew), as well as Foreman
Clary, then and there without further ado
Uncontroverted testimony of Foreman Clary, as well as of
piledrivers, establishes that there was piledriver work on hand
to be done, and that the piledrivers were about to return to
that work when Project Superintendent Dawsen summarily
discharged them as they had completed their brief meeting.
Uncontroverted testimony of Clary, as well as of piledrivers,
further establishes that the nature and status of their work was
such that the brief time expended in the meeting did not
"interfere with or impede or hold up the work on the bridge or
any work that was being done " No evidence was adduced by
Respondent to the contrary.
When shortly after the foregoing episode, McCarthy ap-
proached Dawsen in his trailer to attempt to get him "to relent
a little bit and reconsider and go over this and talk it out a
little bit," Dawsen directed McCarthy to "get the hell off the
job, that he [Dawsen] would kill me [McCarthy] " When
Dawsen reiterated this, McCarthy left and sought out Respond-
ent's Project Manager Fullbnght, who stood by Dawsen's
7 Foreman Clary testified that the shop steward described the
problems about which the piledrivers "wanted to know if they could
have a short meeting where they could all get together " as "com-
plaints . due to safety That is what the shop steward asked me
to have the meeting for "
8 According to Foreman Clary, January 30 was the first time he had
docked employees for holding a meeting He had "several times" prior
to that date authorized employees to take time off during the workday
without docking their pay -"as long as it wouldn 't take much longer
than five or ten minutes it was very common to do this on the job "
Union Business Representative McCarthy's uncontroverted testimony
authority to "fire the people" since he was "running the
job . . . and that they would get all new men on the job "
While waiting to talk further with Fullbright, McCarthy
attempted to make a telephone call from a phone booth,
Dawsen, coming on the scene, proceeded to revile and threaten
McCarthy and attempt to drag him from the phone booth,
Fullbright thereupon induced Dawsen to desist and depart
with him
On the following day, January 31, Respondent called in to
the Union hiring hall for piledrivers to continue the job.
Although the Union thereupon dispatched piledrivers to the
job, Respondent refused to permit any of those whom it had
fired on January 30 to go back to work.'
C. Respondent's Contentions, Discussion and Resolutions
As has been stated, Respondent offered no witnesses. It has,
however, raised a number of contentions which will be
examined.
1. Nature of Piledrivers' January 30 activity resulting in
their discharge
Since it is undisputed that the reason for Respondent's
discharge of its piledriver crew on January 30 was their activity
on that day, it is necessary to ascertain whether that activity
was protected by the Act from employer reprisal
Respondent contends that since the described activities
constituted a strike, walkout or slowdown, its resulting
discharge of the employees was unlawful
To begin with, this was no strike, walkout or slowdown
The piledrivers neither struck nor walked out, and the
uncontradicted evidence establishes that the brief interruption
of their normal work was without impact upon the job The
reason for the meeting-concern over their lives because of
dangers on the job-will be recalled. Section 502 of the Act
expressly provides: " . . . nor shall the quitting of labor by an
employee or employees in good faith because of abnormally
dangerous conditions for work at the place of employment of
such employee or employees be deemed a strike under this
Act " The uncontradicted evidence establishes, and I find, that
the described meeting of piledrivers was held in good faith for
the sole purpose of attempting to remedy abnormally danger-
ous conditions for work at their place of employment, namely,
the described defective tugger braking mechanism and Re-
spondent's Project Superintendent Dawsen's apparent expecta-
tion that the piledrivers should work under loads suspended
hazardously in mid-air above them. Furthermore, the pile-
drivers had obtained express advance permission from manage-
ment to hold the brief meeting
However, even if the piledrivers had struck or walked out,
they could not lawfully have been discharged by Respondent
for engaging in concerted activities protected under the Act
also establishes that there were occasions prior to January 30 when,
with the knowledge and sometimes participation of management,
piledrivers discussed work problems with him during workhours
9 Likewise employee Harter, a carpenter who emplaced scaffolding
whalers and snapties and did some piledriving , and who was among
those discharged on January 30 as described, was redispatched to the
job by his union -Pasco Carpenters Local 1849, not the Charging Party
here-on January 31 to report on February 1 When he reported to
Respondent's office trailer on the morning of February 1, Respondent
refused to rehire him, displaying to him a termination notice with his
name and the words "no rehire" on it
MORRISON-KNUDSEN CO. 59
The piledrivers met on January 30 to discuss safety matters
potentially involving their lives-matters of extremely substan-
tial concern to them and of a nature justifiably viewable as
brooking no further delay. Washington State Department of
Labor Safety Standards for Construction Work (Sec.
1-402),'o compliance with which is explicitly called for by
the parties' collective agreement (GC Exh. 2, p. 17, Art. VIII,
Sec. 1(a)), requires that hoisting apparatus be equipped with
"brakes capable of sustaining 150 per cent of rated load for
stopping and sustaining the maximum load in any position."
The basic charter of employee rights under the Act (Section 7)
insures to employees the "right to .... engage in . con-
certed activities for .... mutual aid or protection ...." It
would appear to be beyond argument that when employees
meet to protect their lives against work hazards they "engage
in ... concerted activities for .... mutual aid or protec-
tion . . " In N L R B. v. Washington Aluminum Company,
370 U.S 9, employees were discharged for walking out of a
shop which they regarded as too cold for work. In reversing
the Fourth Circuit Court of Appeals, the Supreme Court held
that the Board's order requiring reinstatement of the dis-
charged employees should have been enforced since the
employees had engaged in concerted activities protected by
Section 7 of the Act in walking off the job for the indicated
reason, even though in contravention of a company require-
ment of permission to leave the job, also in the absence of a
specific demand upon the employer to remedy the condition,
and notwithstanding the further fact that the employer was
making every effort to repair the situation Speaking for the
Court, Mr. Justice Black stated, 370 U.S at 17 "Indeed,
concerted activities by employees for the purpose of trying to
protect themselves from working conditions as uncomfortable
as the testimony and Board findings showed them to be in this
case are unquestionably activities to correct conditions which
modern labor-management legislation treats as too bad to have
to be tolerated in a humane and civilized society like ours "''
Since, unlike the instant case, Washington Aluminum involved
an actual walkout and, further unlike the instant case, involved
employee dissatisfaction for a reason seemingly far less
substantial than those here, the instant case may be viewed as a
fortiori controlled by the Supreme Court's teaching in Wash-
ington Aluminum. In the circumstances, inasmuch as Respond-
ent's piledrivers could not lawfully have been discharged had
they gone out on strike, it was unlawful to discharge them for
taking the lesser action of merely meeting as they did here.
NL R B v Globe Wireless, Ltd., 193 F.2d 748, 750 (C.A 9)
and cases cited, Cusano v N.L R.B , 190 F.2d 898, 902 (C.A.
3) and cases cited. As in NL.R B v. Kennametal, Inc , 182
F.2d 817,819 (C.A. 3), "what the workmen did was more
reasonable and less productive of loss to all concerned than an
outright strike." And, as stated in N.L R B v. J I Case Co.,
198 F 2d 919, 922 (C A. 8), cert. denied 345 U.S. 917,
quoting Kennametal, "The language of the Act does not
require and its purposes would not be served by holding that
dissatisfied workmen may receive its protection only if they
exert the maximum economic pressure and call a strike."
Nor can I agree with Respondent's contention that the mere
inclusion in the collective agreement of a no-strike and
gnevance-arbitration provision restricts the employees under
all circumstances to exclusive resort thereto, in effect bypass-
ing the Act and avoiding the necessity for compliance
therewith, as well as requiring employees to continue to work
under the most intolerable hazards An agreement between
employer and employee cannot be so construed as a waiver of
employees' rights, nor, as hereafter shown, does it oust the
Board of its statutory jurisdiction nor save it from its assigned
public functions. Cf Act, Sec 502, id, passim, N.L R B. v.
Interboro Contractors, Inc , 388 F.2d 495, 501 (C.A. 2),
NL R B. v. Huttig Sash & Door Co., 377 F.2d 964, 970 (C.A.
8), International Union of Electrical, etc. Workers, Local 613
(Erie Technological Products, Inc) v. N.L R B., 328 F 2d 723,
726-727 (C.A.3).
2. Foreman Clary's authority
The uncontradicted credible evidence clearly establishes the
supervisory status of Respondent's Foreman Clary, from
whom permission was sought and obtained to hold the brief
safety meeting on January 30 at the employees' own expense
Clary not only fired, disciplined, assigned work to, and
otherwise responsibly directed Respondent's piledrivers, but he
had even regularly given permission to the piledrivers on
occasions prior to January 30 to take time off for such
purposes as brief meetings, and he had further, at times
together with other management representatives, discussed
such problems with the rank-and-file employees. The parties'
collective agreement provides (GC Exh. 2, Sched. "A," p 33)
that "Any workman covered by this Agreement shall be under
the supervision of a foreman of his crafts ...... It further
provides (Art VII, Sec. 2, p 16) that the shop steward "may
take reasonable time off from his regular duties when an
employee (or group of employees) desire to take up with the
steward any matter which is believed to be in violation of this
Agreement," and that in such cases the steward must "inform
his immediate supervisor [i.e., Foreman Clary] where he
wishes to go and shall secure permission to leave" (id.) It
seems evident that in granting time to the steward to talk to
employees on such matters, the time of employees to whom
10 Officially noticed here without objection (Tr pp . 97-98).
11 See also N.L R B v Belfry Coal Corporation, 331 F 2d 738, 740
(C A 6), (refusal to work in unsafe mining area ), N L R B v Walls Mfg.
Co , 321 F 2d 753, 754 (C A D C , employee letter to health authorities
regarding unsanitary restroom conditions ), Time-O-Matic, Inc v
N L.R B., 264 F.2d 96, 101-102 (C.A 7, employees leaving work area,
without permission , to speak to plant officials in office regarding
grievance ), N L R.B. v Cowles Pub Co , 214 F 2d 708, 710 (C.A 9,
work stoppage by employees, gathering in locker room , and joint
presentation of grievances ), cert denied , 348 U.S 876, N L R B v
Southern Silk Mills, Inc , 209 F 2d 155 (C A 6, work stoppages and
walkouts because of excessive heat in factory ), cert . denied , 347 U.S.
976, N L.R B v J I Case Co , 198 F 2d 919, 921 -922 (C A. 8), brief
march through plant aisles in protest against discharge of union
steward ), cert denied , 345 U S 917, N.L.R.B. v Globe Wireless, Ltd.,
193 F 2d 748, 749 (C A 9, employee protest to management and
resumption of work conditioned on reinstatement of discharged
fellow-employee unionist), Olin Industries , Inc v. N L R.B , 191 F 2d
613, 615 (CA. 5, work stoppages in protest against work schedule
changes , refusal of employer to entertain grievances), cert denied 343
U S. 919, NLRB v Kennametal, Inc , 182 F .2d 817 , 819 (C.A 3,
employees' attempt at group presentation of wage grievances to
management , brief work stoppage ), N L R B v Greensboro Coca Cola
Bottling Co., 180 F 2d 840, 843 (C A. 4, employee attempt to organize
protest against proposed work changes ), Carter Carburetor Corp. v
NL.R B., 140 F.2d 714, 717-718 (C A 8, attempt by employees to
organize protest against discharge of fellow-employee union leader,
refusal to return to work on employer 's order ), Hartwell Company, Inc ,
169 NLRB No 73 (discharge for pressing miscellaneous grievances)
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the steward is permitted to talk, as well as the time of the
steward, is involved. It is clear that the piledrivers regarded,
and Respondent held out, Foreman Clary as having those
responsibilities, which he indeed actually exercised, and that
the piledrivers had every reason and right to regard Clary as
possessing authority to speak for Respondent, as he did, in
granting permission for them to hold their brief meeting on
January 30 under the circumstances described
Since Foreman Clary satisfied the requirements of super-
visory status under the Act,' 2 I find that at all material times
including January 30, Clary was Respondent's supervisor
within the meaning of Section 2(11), as well as Respondent's
agent within the meaning of Section 2(13), of the Act, and
that the piledrivers' described meeting on January 30 was
authorized by him on Respondent's behalf in the scope of his
authority in both of those capacities, and that the meeting
took place by reason thereof and in reliance thereon.
3. Alleged refusal of piledrivers to return to work
In a letter (GC Exh. 1(e)) written by Respondent to the
Board's Regional Director in response to the complaint, it is
stated (p. 4) that the piledrivers in question, who met as
described, "were ordered to return to work by our Company
superintendent, but refused to do so . [and] were dis-
charged for refusing to return to work." There is not a scintilla
of evidence to support this allegation. To the contrary, the
uncontroverted credited evidence overwhelmingly establishes
that the piledriver crew was discharged as described and found
above, and that, far from being ordered to return to work or
refusing to do so, the piledrivers were summarily discharged by
the Company superintendent and were not permitted then or
thereafter to return to work. There is, accordingly, a total lack
of merit to this contention, which has apparently been
abandoned by Respondent since it was raised neither at the
hearing nor in its brief
4. The arbitration contention
It is finally urged by Respondent that this proceeding is
barred by a grievance-arbitration provision in its collective
agreement with the Union The facts in this regard are that the
12 Respondent concedes in its brief (p 4) that "Foreman Clary had
certain supervisory authority , to fire, assign, etc., making him a
supervisor within the meaning of Section 2 ( 11) of the Act." However,
Respondent contends that Clary was not authorized to, or should not
have permitted , the men to hold the dryshack meeting as he did. As has
been indicated , Clary had-to the knowledge, and in certain instances
with the participation , of higher management -authorized and taken
part in such meetings with employees Management at no time gave any
notice or indication to employees that their foreman (Clary) had any
limitations on his powers or authority in this regard . Respondent now
contends on brief that Clary was powerless to act in matters "involving"
the Union , since he was a member. This is by no means true To begin
with, no such limitation on his authority was factually established,
Respondent having presented no witnesses whatsoever Secondly, the
mere fact of union membership does not work an automatic
disqualification to act on an employer's behalf , it is for the employer to
decide whether or not to employ as its foreman and utilize as its agent,
with or without announced limitations on his authority, a union
member Moreover , the matter here involved related directly to the
work and safety of the piledrivers on the project-matters clearly within
Clary's orbit of competence Furthermore , for reasons already detailed,
the question of whether the piledrivers ' meeting on January 30 was
authorized is immaterial to the issue of the lawfulness of their discharge,
parties' collective agreement contains a conventional griev-
ance-arbitration provision (GC Exh 2, pp. 18-21, Art. X), and
that the parties attempted, without success, to adjust this
matter, without, however, at any time proceeding to arbitra-
tion. Although on February 6 Respondent wrote the Union
that it was willing to "join you" in taking steps to proceed to
arbitration (Resp Exh. 1, p. 2) it is conceded that the Union
never did so, and that neither of the parties took any step
thereafter to appoint an arbitrator or otherwise to proceed to
arbitration.
The mere fact that a grievance-arbitration procedure is
available to employees (or employer) under a collective
agreement does not constitute a defense to employer (or
Union) violation of the Act It would be contrary to the
policies and purposes of the Act to permit employees (or
employers) thus to relinquish its protections, and beyond their
ability to narrow the Board's powers and obligations of
administration and enforcement of the Act, Section 10(a) of
which expressly provides that the Board's power to prevent
unfair labor practices "shall not be affected by any other
means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise ,13 As recently
stated in regard to a similar contention, in an unfair labor
practices case where the parties had proceeded under the terms
of their collective agreement to actually appointing an arbitra-
tor, NL.R.B v. The Scam Instrument Corporation, 394 F 2d
884, 68 LRRM 2280, 2282 (C.A 7, 1968), enfg. 163 NLRB
No. 39. " . . the Board's power to entertain the charges and
to afford a remedy for the unfair labor practice found to exist
was not precluded by the availability or the invocation of the
contract's grievance and arbitration provisions Carey v.
Westinghouse, 375 U.S 261, N L.R.B. v. Acme Industrial Co.,
385 U.S. 432."
For the foregoing reasons, Respondent's defenses should be
rejected as lacking substantial merit. It is accordingly found
that by its described discharge of its piledriver crew on the
Joso Bridge Project on January 30, 1968 and its refusal since
then to reinstate or reemploy said piledrivers, Respondent has
interfered with, restrained and coerced, and is continuing to
interfere with, restrain and coerce, employees in their right to
engage in concerted activities for their mutual aid or protec-
tion under Section 7 of the Act 14
since they could lawfully have left the job altogether for the reason they
did, even without any meeting . Washington Aluminum and other cases
cited supra
13 It has been remarked of Board proceedings that "The controversy
is not to vindicate a private right , but to give effect to the public policy
as defined by Congress, viz the prevention of unfair labor practices
which, by causing and increasing industrial strife, obstruct the free flow
of interstate commerce Amalgamated Utility Workers v Edison Co ,
309 U S 261, 266, 267, 268 . .. " N L R B. v General Motors Corp.,
166 F 2d 306 , 312 (C A 7) See also General Truckdnvers, Local 5
(Ryder Truck Lines, inc) v. N.L R B., 389 F.2d 757, 67 LRRM 2410,
2411 (C A. 5, 1968), Producers Grain Corp , 169 NLRB No. 68, C & S
Industries, Inc., 158 NLRB 454, Cloverleaf Division of Adams Dairy
Co , 147 NLRB 1410, 1416
14 In view of this finding , it is unnecessary to determine whether
Respondent 's conduct also violated Section 8(a)(3) of the Act, the
remedy in either event being the same Cf N.L.R.B. v. Kennameral,
inc , 182 F.2d 817, 818 -819 (C.A.3), Gullett Gin Co, inc v. N.L.R.B.,
179 F.2d 499, 502 (C.A 5), modified in other respect 340 U S. 361,
Interboro Contractors , Inc , 157 NLRB 1295 , 1302, fn. 16, enfd. 388
F.2d 495 (C.A.2).
MORRISON-KNUDSEN CO.
Upon the foregoing findings and upon the entire record, I
state the following
CONCLUSIONS OF LAW
I Morrison-Knudsen Company, Inc , Respondent here-
in, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2 Pile Drivers' Local Union No 2382, affiliated with
United Brotherhood of Carpenters and Joiners of Ameri-
ca, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
3. Assertion of jurisdiction herein is proper
4. By its conduct set forth in section III, supra,
found to have constituted unfair labor practices, in dis-
charging the following-named employees on January 30,
1968, and refusing since then to reinstate or reemploy
them, Respondent has interfered with, restrained and
coerced, and is interfering with, restraining and coercing,
employees in the exercise of rights guaranteed by Sec-
tion 7, thereby engaging in unfair labor practices within
the meaning of Section 8(a)(1), of the Act
James I Bucklin
Delbert J Clark
Fred D Clary
Lonnie R Cranor
Albert C. Crouch
Lester E. Edington
Donovan J. Harter
David Haught
5. The aforesaid unfair
merce within the meaning
the Act
Ernest W Howland
Leroy E. Meyers
Michael Plasterer
Glenn L Roberson
Delbert C. Schaffer
Jack Slawter
Reece Storey
R.L. Wilmoth
labor practices affect com-
of Section 2(6) and (7) of
V THE REMEDY
Having found that Respondent has engaged and is continu-
ing to engage in unfair labor practices, I shall recommend that
it be required to cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies of the
Act With regard to the 16 rank-and-file piledrivers discharged
on and not reemployed since January 30, 1968, 1 shall
recommend that Respondent be required to cease and desist
from continuation or repetition of such conduct, and that it be
required to offer them immediate full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and to make
them whole for any loss of earnings and vacations or other
emoluments or accruals suffered by reason of said unlawful
discharge, from the date of that discharge to the date of
Respondent's offer of reinstatement, together with interest
thereon, less their respective net earnings if any during such
period, backpay and interest to be computed in the manner
prescribed by the Board in F W. Woolworth Co , 90 NLRB
289, and Isis Plumbing & Heating Co , Inc., 138 NLRB 71055
Against the eventuality that the particular construction project
here involved ("Joso Bridge") may have been completed or
15 Although Foreman Clary was listed by name in the charge as one
of those discriminatorily discharged, he was not included in the
complaint. In view of this fact and because no issue has been tendered
61
will be completed prior to the effectuation of the relief
flowing from this proceeding, or that for other potentially
valid reasons it may be unfeasible to rehire all of the
discrirmnatees at such time, I shall include in the Recom-
mended Order provisions requiring Respondent to establish a
special list from which the discriminatorily discharged em-
ployees shall be preferentially rehired In implementation of
the foregoing recommended remedial provisions, I shall further
recommend the usual requirements in cases of this type, that
Respondent make available necessary records for computation
of backpay and any benefits, emoluments, or accruals which
may be due or involved, and that Respondent be required to
notify such of the discriminatorily discharged employees as
may be in the Armed Forces of the United States of their right
to full reinstatement after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended In view of the
nature and extent of the unfair labor practices committed by
Respondent and its continued refusal to reinstate or give
employment to any of the employees whom it summarily
discharged under the circumstances described, indicative of
refractory continuing hostility to the exercise of employee
rights guaranteed by the Act, I deem it appropriate to
recommend that Respondent be required to cease and desist
from infringing in any manner upon the rights of employees
guaranteed in Section 7 of the Act Respondent should also be
required to post the conventional Notice to Employees.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby make the following
RECOMMENDED ORDER
It is hereby ordered that Morrison-Knudsen Company, Inc ,
its officers, agents, successors, and assigns, shall
I Cease and desist from
a Discharging or refusing to reinstate , hire, or rehire,
any employee for engaging or attempting to engage in
concerted activities for mutual aid or protection under the
Act
b. Failing or refusing to reinstate , hire, or rehire any of
the following employees because of Respondent's discharge of
said employees on January 30, 1968 , or because of any of the
circumstances involved in said discharge
James I Bucklin
Delbert J Clark
Fred D Clary
Lonnie R Cranor
Albert C Crouch
Lester E. Edington
Donovan J. Harter
David Haught
Ernest W. Howland
Leroy E. Meyers
Michael Plasterer
Glenn L. Roberson
Delbert C. Schaffer
Jack Slawter
Reece Storey
R L Wilmoth
c Interfering in any other manner with, or restraining or
coercing, any employee in the exercise of his right to
self-organization, to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his own
choosing, to engage in concerted activities for the purposes of
nor remedy sought by General Counsel or the Charging Party Union
concerning his discharge, I have not included him in the recommended
remedy or order.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities
2. Take the following affirmative actions necessary to
effectuate the policies of the Act
a (1) Offer each of the following employees immediate,
full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay, vacations,
and other emoluments and accruals, in the manner set forth in
"The Remedy" section of this decision Each of said employ-
ees who is presently serving in the Armed Forces of the United
States shall be notified by Respondent of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces The
employees are
James I. Bucklin Ernest W Howland
Delbert J. Clark Leroy E Meyers
Fred D. Clary Michael Plasterer
Lonnie R Cranor Glenn L. Roberson
Albert C Crouch Delbert C Schaffer
Lester E Edington Jack Slawter
Donovan J Harter Reece Storey
David Haught R L Wilmoth
(2) In the event that there are not sufficient jobs for
said employees at Respondent's Joso Bridge Project or other
construction project of Respondent within the territorial
jurisdiction of Pile Drivers' Local Union No. 2382, affiliated
with United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, such jobs as are so available shall be filled
from among the above employees in accordance with their
seniority or other nondiscriminatory practice heretofore ap-
plied by Respondent in the conduct of its business
(3) Place all of the above employees for whom no
such employment is available upon a preferential hiring list,
with priority in accordance with such system of seniority or
other nondiscriminatory practice as has heretofore been
applied by Respondent in the conduct of its business, and
thereafter offer said employees reinstatement as such employ-
ment becomes available and before other employees are hired
for such work.
b. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to
ascertain and analyze the amount of backpay and other
amounts or accruals which may be due under the terms of this
Order
c Notify each of the employees entitled to reinstate-
ment who may currently be serving in the Armed Forces of the
United States, of his right to full reinstatement upon applica-
tion after discharge from the Armed Forces, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended
d Post at its Joso Bridge jobsite and at the hiring places
for said jobsite, as well as at its principal office in Boise, Idaho,
and at each of its jobsites within the territorial jurisdiction of
Pile Drivers' Local Union No 2382, affiliated with United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO,16 as well as at each such jobsite as may commence
operation within 6 months from the date on which compliance
with this Order commences, 17 copies of the Notice attached
hereto marked "Appendix A"' 8 Copies of said Notice, on
forms provided by the Regional Director for Region 19, shall,
after being duly signed by Respondent's authorized representa-
tive, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said Notices are
not altered, defaced, or covered by any other material.
e Return to said Regional Director copies of the Notice
signed as aforesaid, for posting by the above Union, if willing,
at its offices, meeting places, hiring halls and other places from
which prospective employees aie dispatched for employment,
and where notices to members and other persons using said
hiring halls are customarily posted
f Notify said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended Order,
as to what steps have been taken to comply therewith i 9 20
16 Central Rigging and Contracting Corporation, 136 NLRB 913,
918 At Respondent's option , the postings herein required may, instead
of being made at each of its jobsites within the territorial jurisdiction of
the above Union, be made at each of its jobsites covered or
encompassed by the collective agreement dated June 1, 1965 (or any
extension thereof), with said Union to which Respondent is a party or
by which it is bound.
17 The Ingalls Steel Construction Company, 126 NLRB 584, 588
18 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the Notice. In
the further event that the Board's Order is enforced by decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
19 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, as to
what steps have been taken to comply herewith "
20 To the extent Respondent 's proposed findings and conclusions,
dated June 12, 1968 , are inconsistent with findings and conclusions
herein made , they are disallowed
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that-
After a hearing duly held, it has been determined that
Morrison-Knudsen Company, Inc., has violated the National
Labor Relations Act in discharging its piledriver crew at the
Joso Bridge project on January 30, 1968. In order to remedy
this conduct, we are posting this notice and we will do the
following:
WE WILL offer each of the following employees im-
mediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his
seniority or other rights and privileges, with backpay and
interest, for any wages and other payments, bonuses,
benefits, vacations, and other emoluments and accruals, lost
because of our unlawful termination of his employment on
January 30, 1968, and our failure and refusal to remstate or
reemploy him.
MORRISON-KNUDSEN CO 63
James I. Bucklin
Delbert J. Clark
Fred D. Clary
Lonme R. Cranor
Albert C. Crouch
Lester E. Edington
Donovan J. Harter
David Haught
Ernest W. Howland
Leroy E. Meyers
Michael Plasterer
Glenn L. Roberson
Delbert C. Schaffer
Jack Slawter
Reece Storey
R.L. Wilmoth
In the event there are insufficient jobs open for the purpose of
such reinstatements, we will set up and hire the above
employees from a preferential hiring list on a nondiscrimina-
tory seniority basis.
WE WILL NOT discharge, refuse or fail to reinstate, or refuse
or fail to hire or rehire, any of the above employees because
we discharged him on January 30, 1968, or because of any
of the circumstances resulting in that discharge.
WE WILL NOT discharge, lay off, suspend, discipline, retali-
ate or discriminate against, or threaten so to do, any
employee for engaging or attempting to engage in concerted
activities for mutual aid or protection, or for exercising or
attempting to exercise any other right which employees
have, under the National Labor Relations Act, as amended.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of their rights,
guaranteed to them by Congress, to self-organization, to
form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection, or to refrain from engaging in any or all such
activities.
MORRISON -KNUDSEN COMPANY,
INC
(Employer)
Dated By
(Representative) (Title)
NOTE If any of the above employees is presently serving in
the Armed Forces of the United States, we shall notify him of
his right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the
Armed Forces.
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate di-
rectly with the Board's Regional Office, 327 Logan Building,
500 Union Street, Seattle, Washington 98101 Tel. 583-4532.
r