Myers Industrial Electric

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 817 (N.L.R.B. 1969)

MYERS INDUSTRIAL ELECTRIC 817
Arthur Edward Myers d/b/a Myers Industrial
Electric and David Rex McMurdo. Case
19-CA-3538
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On February 6, 1968, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
filed exceptions to the Trial Examiner' s Decision
and the Respondent filed a Response and a brief.
On June 28, 1968, the National Labor Relations
Board issued an Order remanding the proceeding,
reopening the record, and directing a further hearing
for the purpose of adducing additional evidence with
respect to various issues raised in the case. The Trial
Examiner was directed to prepare and serve upon
the parties a Supplemental Decision containing
findings of fact, conclusions of law, and
recommendations based upon the evidence received
pursuant to the provisions of the Board's Order.
On February 18, 1969, Trial Examiner E. Don
Wilson issued his Supplemental Decision in the
above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor
practices alleged and again recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Supplemental
Decision and supporting briefs, and the Respondent
subsequently filed an answering 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 of the Trial
Examiner made at the hearings and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and his Supplemental Decision,
the exceptions and briefs, 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
The Charging Party's requests for oral argument are hereby denied as
the record, including the exceptions and briefs, adequately present the
issues and the positions of the parties
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
CHAIRMAN MCCULLOCH, dissenting:
Unlike my colleagues, I would find that the
Respondent's termination of the alleged
discriminatees violated Section 8(a)(1) of the Act.
In the instant case, the facts show that the
Respondent agreed in advance with the Union, in
section 17(a) of article IV of their
collective-bargaining agreement, that as a "safety
measure" on all energized circuits of 440 or more
volts or on work done under hazardous conditions
- the very type of work involved herein - not less
than two journeymen shall work together. On
learning of the Respondent's proposed breach of this
safety measure, the Union's representatives twice
conferred with the Respondent's officials to protest.
The Respondent nevertheless proceeded with its
proposal, and then discharged the complainants for
having been provoked into walking off the unsafe
job.
In view of the Respondent's contractual
commitment to observe certain safety standards, in
the collective-bargaining agreement with the Union,
I do not believe that the Respondent should be
allowed to strip these safety standards from the
employees and still rely on the no-strike provision in
the agreement as an excuse to discharge them for
their protest strike. Nor do I see how the employees
can be said to be without any reasonable objective
basis for striking against the Respondent's breach of
the agreed safety standards, merely because
witnesses at a subsequent Board hearing convince a
Trial Examiner that the resulting working
conditions, although "particularly dangerous"
according to his findings, were not abnormally so.
I regard the Respondent's relaxation of agreed
safety standards both as a material breach of its
basic and fundamental obligation to provide safe
working conditions, and as a justification for the
employees' resort to a walkout in disregard of the
contractual no-strike provisions.'
Accordingly, I would conclude that by
terminating the employment of three employees
because they engaged in protected concerted
activity, the Respondent violated Section 8(a)(1) of
the Act.
'See San Juan Lumber Company , 154 NLRB 1153, 1155
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge filed
on December 5, 1966, by David Rex McMurdo, an
individual , herein McMurdo, the General Counsel of the
National Labor Relations Board , herein the Board , issued
a complaint dated July It, 1967, alleging that Arthur
Edward Myers, d/b/a Myers Industrial Electric, herein
Respondent , violated Section 8(a)(3)' and (1) of the
National Labor Relations Act, herein the Act.
At the hearing and in his brief , General Counsel abandoned any
177 NLRB No. 52
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to due notice a hearing in this matter was
held before me on October 24 and 25, 1967, at Kalispell,
Montana. The parties fully participated. Briefs have been
received and considered. Upon the entire record and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent ' s principal place of business is in Oroville,
California . It is engaged in the installation of wiring and
electrical equipment primarily in heavy construction
projects . In 1966 , Respondent was so engaged on a project
located near Trego , Montana . During the past year, in his
business operations, Respondent received in excess of
$50,000 from sales and performance of services made to
customers outside California.
At all times material , Respondent has been an
employer engaged in commerce within the meaning of the
Act.
C. The November 15 Walkout
Having learned of the reduction in force, on November
15, all of Respondent's electricians failed to report for
work. It is clear that although there was a no-strike clause
in the agreement with the Union which covered their
employment, the electricians walked off the job on the
grounds that it was abnormally dangerous for an
electrician to work alone on the swing and graveyard
shifts where 440 or higher volt circuits had to be dealt
with.
On November 16, Respondent sent the electricians'
final pay to the Union office with termination notices
stating the men had quit their employment. Six
termination forms, including those of the three alleged
discriminatees, stated that the named employees or
supervisors were "not subject for rehire on this job." A
few days later Respondent rehired all but the named six.
The alleged three discriminatees were George Johnson,
Lou Pauly and Hyla Maze.
Il. THE LABOR ORGANIZATION
Local 768, International Brotherhood of Electrical
Workers, AFL-CIO, herein the Union, has been a labor
organization within the meaning of the Act, at all material
times.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Was the discharge of three journeymen electricians for
walking off the job in violation of a no-strike clause,
unlawful because the men walked off in protest of
allegedly abnormally dangerous working conditions?
B. Background
The United States Government let a contract for the
construction of a tunnel to Walsh-Groves Construction
Co., as prime contractor. The tunnel project was
supervised by the United States Army Corps of Engineers.
About June 1, 1966,2 Walsh-Groves subcontracted the
electrical work to Respondent. Respondent has had
considerable experience in heavy construction work,
including tunnels.
On July 25, Respondent entered into a contract with
the Union. The tunnel was being driven from both ends
with a North and a South portal, but was treated as one
job. Respondent advised the Union as to how he planned
to man the tunnel work. There were to be three
electricians for each portal on the day shift and one for
each portal on the swing and graveyard shifts, making a
total of 10 electricians in all, including foremen.
Respondent commenced work on July 25, with more than
his planned crew of 10 because of surface installations
necessary before actual tunneling began and because he
was behind on his work schedule. By November 14, he
was caught up on his work and decided to reduce his crew
to the planned ten men plus a general foreman. He did so,
with the result that on the swing and graveyard shifts
there was but one electrician at each portal.
allegation of an 8(a )(3) violation.
'Hereinafter all dates refer to 1966, unless otherwise stated
D. The Alleged Abnormally Dangerous Working
Conditions
The complaint, as amplified by a bill of particulars,
alleged that the abnormally dangerous working conditions
consisted of a requirement by Respondent that electricians
work on energized circuits of 440 volts and over in wet,
damp areas alone and without another electrician being
present. Obviously under the new requirements, one
electrician would be working alone on the swing and
graveyard shifts at the North and South portals. The
record discloses it was not unusual for it to be wet and
damp when an electrician did his work in the tunnel.
Equipment known as a "Carpet", a "Jumbo" and a
"Mucker" were used in this tunneling work. I find no
need to describe their functions other than to point out
that at least part of their operations was generated by
electricity. The mucker was plugged and unplugged by
miners . A large so-called rib cable lies on the tunnel floor
or is hung up when appropriate by the electricians. It
carries 440 volts. It is approved for the use to which
Respondent put it and for manual handling by the U. S.
Bureau of Mines and the Pennsylvania Bureau of Mines.
It was stipulated that this rib cable met all safety
requirements. The cable comes in sections about 425 feet
in length. Sections are joined to each other by plugs.
From time to time electricians pull or move this cable by
hand.' Electricians care for any slack in the rib cable or
hang it, plug and unplug various connections, maintain,
add to or replace sections in the various cables and
maintain the various contacts. They also test circuits.
Testing with a volt or ampmeter requires an energized
circuit.
It is plain to me that working in tunnel construction is
dangerous. It is particularly dangerous to work as an
electrician in the wet and damp conditions which may
exist in a tunnel . Of course there are the safety controls
such as gloves , etc., which may be used.
General Counsel presented six journeymen electricians
with years of experience' who testified with an important
exception, Johnson, that they believed "working alone" on
energized circuits of 440 volts or over to be abnormally
dangerous. Johnson, one of the alleged 8(a)(1)s, testified
'Always an electrician could make use of safety gloves or other safety
equipment or devices.
'Other than tunnel work
MYERS INDUSTRIAL ELECTRIC 819
that he would not consider it abnormally dangerous to
work on live 440 volts in a tunnel.
Of course, there are facilities for electricians "to
de-energize and lock out the circuit." It is plain from the
testimony of Johnson that the rib cable is built
particularly for the purpose of safely pulling and moving
it while it is energized.
There is testimony in the record concerning the danger
of plugging or unplugging while the plug and/or the
receptacle are wet or muddy. It is plain from the record
that the plug and/or receptacle may be cleaned and dried
so that there is little or no danger in plugging or
unplugging , if reasonable care is used.
The electricians were not concerned about having
merely another employee with them if they came in
contact with a live 440 or over volt circuit, but they
wanted another electrician present so that he could take
care of the working electrician in case he got "hung up."
They had confidence that another electrician could better
aid in case of an accident. All of the employees in the
tunnel had regular safety programs.
Respondent's witnesses all had years of experience in
electrical work in tunnels, unlike General Counsel's
witnesses . Respondent ' s witnesses agreed that tunnel work
is hazardous for all tunnel workers, including electricians.
They do not consider the work to be abnormally
dangerous. They point out that dangers are minimized by
the exercise of care and proper use of safety equipment
and devices. They further point out that the other workers
in the tunnel are trained to render necessary assistance
and first aid in the event of an accident. It is the gist of
their testimony that it is not unusual for an electrician to
work alone in tunnel work.
It has been noted that work on this tunnel was
performed under the close supervision of the Corps of
Engineers. Walsh-Groves supervisors testified that work
under the Corps was much more requiring from a safety
standpoint than under other agencies . They testified there
was nothing abnormally dangerous about any electrician's
work in this tunnel. Walsh-Groves' safety engineer
testified there were frequent inspections by safety
personnel from the Army Corps of Engineers, the State of
Montana and the U. S. Bureau of Mines. All reports were
that safety conditions were satisfactory. The engineer
found nothing abnormally dangerous in the working
conditions of the electricians.
The Army Corps of Engineers had a safety regulation,
article 15, section 11 , which provides:
"Work requiring two or more men. In maintenance,
repair or construction work , either in overhead line
work or in substation and power plant work, where the
wiring is congested and where the work requires
unusual exposures , or handling of energized conductors
or apparatus, two or more employees shall work
together. It may be necessary to delegate one of the
employees to watch the movements of the men doing
the work so that he can warn them if they get
dangerously close to live conductors and render
assistance in case of an accident. The foreman is held
responsible for assigning a sufficient number of
qualified men to do this type of work safely."
Richard K. Leatherman was called as a witness by the
General Counsel. He impressed me as a disinterested and
highly competent and qualified witness. He had been
working at the tunnel and it was his job to enforce the
general safety requirements of the Army Corps of
Engineers. He conducted the safety inspections on the job.
He was definite that the above quoted regulation was
inapplicable to the work of the electricians here involved.
For 11 years he has enforced the safety regulations of the
Corps. I consider him to be an expert and he testified he
saw nothing abnormally dangerous for an electrician to
work alone in the tunnel on 440 or higher volts. He didn't
see a chance for a man to be shocked while doing
electrical work in the tunnel if there were a "proper
workmanlike maintenance program." It is the
responsibility of the electrician to do his job in a
workmanlike manner. An electrician working in the tunnel
would not be faced with dangerous conditions if he
exercised reasonable care or engaged in "good
housekeeping."
J. D. VanSant testified he was Leatherman's supervisor.
He testified Respondent was not in violation of the
regulations of the Corps. He described Leatherman as
being more determined on enforcement of safety
regulations than anyone else he had ever seen.
Concluding Findings
Particularly accepting Leatherman's testimony, as I do,
I conclude that General Counsel has not established by a
preponderance of substantial evidence that the alleged
discriminatees walked off the job because of abnormally
dangerous working conditions. The term "abnormally
dangerous conditions" contemplates an objective as
opposed to a subjective test.' That some of the alleged
discriminatees may have believed the conditions were
"abnormally dangerous" is immaterial. General Counsel
has failed to establish by a preponderance of the
competent evidence that the actual working conditions
were "abnormally dangerous." Thus, the walkout in
violation of the no-strike clause, was unprotected by the
Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the
entire record, I make the following conclusions of law.
1. Respondent is and has been at all material times, an
employer engaged in commerce within the meaning of the
Act.
2. The Union has been a labor organization within the
meaning of the Act , at all material times.
3. The record does not establish that Respondent has
engaged in any unfair labor practice alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding , it is recommended that the Board enter an
order dismissing the complaint.
'Redwing Carriers , Inc., 130 NLRB 1208, 1209.