The Dirt Digger, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1985

274 N.L.R.B. 1024 (N.L.R.B. 1985)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rayglo Corporation d/b/a The Dirt Digger , Inc. and DECISION
Les Meadows . Case 27-CA-8685
19 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 2 October 1984 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed an answering
brief.
The Board has considered the decision and the
'record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions3 and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Rayglo Cor-
poration d/b/a The Dirt Digger, Inc., Murray
City, Utah, its officers, agents, successors, and as
signs, shall take the action set forth in the Order.
i The Respondent in its brief in support of exceptions urges that the
record be reopened to permit certain officers of the Respondent to testify
concerning the Respondent's motives The Respondent does not state any
reason why this evidence was not presented at the hearing, nor does the
Respondent state that this is newly discovered evidence or evidence
which has become available only since the close of the hearing The Re-
spondent's motion is therefore denied
The Respondent has requested oral argument The request is denied as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge's findings, Chairman Dotson places no reliance
on the discussion in fn 12 of Abilities & Goodwill, 241 NLRB 27 (1979),
with which he disagrees See Seminole Mfg Co, 272 NLRB 365 (1984)
3 While the judge found that the Respondent's vice president Skip
Knittle did not tell the assembled employees on 21 December 1983 that
they would be fired unless they accepted the new pay plan, he went on
to conclude in fn II that if Knittle had done so the statement would
have interfered with the employees' Sec 7 rights since it would have
been broad enough to be considered a threat to fire the employees if they
struck in protest of the proposed change We find it unnecessary to pass
on these speculative comments
4 We find it unnecessary to consider, at this time, any possible waiver
of reinstatement questions and shall leave such matters to the compliance
stage of this proceeding Member Hunter notes there were no exceptions
taken to the judge's discussion concerning waiver of reinstatement rights
and he passes no judgment on that discussion
Member Dennis also finds it unnecessary to consider the judge's com-
ments in fn 12 inasmuch as the employees were not on strike when they
were discharged
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Salt Lake City, Utah, on July 12
and 13, 1984. The charge was filed on February 1, 1984,
by Les Meadows, an individual. The complaint issued on
March 13, 1984, and was amended on March 19, April
30, June 28, 1984, and at the hearing. The complaint, as
amended, alleges that Rayglo Corporation d/b/a The
Dirt Digger, Inc. (Respondent or the Company) violated
Section 8(a)(1) of the National Labor Relations Act.
Issues
I The primary issue is whether the Company violated
Section 8(a)(1) of the Act by discharging 19 employees
because those employees protested against the Compa-
ny's proposed change in work and pay practices and en-
gaged in a concerted refusal to work because of that pro-
posed change.
2 Another issue is whether the Company, through its
supervisor, James Maxwell, violated Section 8(a)(1) of
the Act by telling an employee that he would be black-
balled from the industry because of his actions with
regard to the proposed change.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Company.
On the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a Utah corporation with an office and
place of business in Murray City, Utah, is engaged in the
construction of underground communication systems.
The Company annually purchases and receives goods
and materials valued in excess of $50,000 directly from
places outside of Utah. The complaint alleges, the
answer admits, and I find that the Company is engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company installs underground cable systems. Its
corporate headquarters is in Englewood, Colorado, and
it maintains a regional office, known as the Murray City
office, in the Salt Lake City area. The Company lays
cable in that area for Telecommunications, Inc (TCI) as
well as for Mountain Bell
At the times material herein James A Maxwell was
project manager at the Murray City office. Under him
were three construction supervisors, Rollie Hendricks,
Kevin Justison, and Carl Boyer. There were 9 foremen
and between 50 and 60 other employees working from
274 NLRB No. 157
DIRT DIGGER, INC.
the Murray City office. It was stipulated that the fore-
men were not supervisors. The Company denied that
Justison and Hendricks were supervisors. However the
Company's vice president, Skip Knittle, credibly testified
that all of the Company's construction supervisors had
the same authority. Specifically he testified that Justison
and Hendricks had the same authority as Boyer, who
was an admitted supervisor Project Manager Maxwell
acknowledged in his testimony that the construction su-
pervisors were ordinarily the only ones directing the
work of the laborers in the field, that they used their
own judgment with regard to rescheduling the work or
moving the crew as well as with regard to other matters,
and that he relied on them to use independent discretion
in telling the employees how to perform their work
when he was not present. I find that all of the construc-
tion supervisors were supervisors within the meaning of
the Act.'
The Company's employees are not represented by any
labor organization.
Some time prior to December 21, 1983, the Company's
management decided to make substantial changes with
regard to the way that employees were paid. The Com-
pany's practice had been to pay employees an hourly
rate and to pay for business-related expenses. The antici-
pated change would in effect do away with the time
method of payment and substitute a type of piece-rate
payment. Instead of an hourly rate, employees would re-
ceive part of a total payment to a crew based on the
number of feet of cable laid by that crew. Under the new
system the crew would be responsible for buying gas for
trucks and compressors; each crew would be responsible
for damaged materials and redoing defective work It
was anticipated that the new plan would be put into
effect as of December 31, 1983. However, because of ad-
verse comments from a number of people, the plan was
not actually put into effect until January 15, 1984.
On December 21, 1983, Company Vice President Skip
Knittle met with all the supervisors and employees at
Murray City. He handed out a written list of the changes
that were to be put into effect on December 31, 1983,
and he described those changes to the employees. He
told them that the changes were to go into effect on De-
cember 31, 1983. Knittle made it clear to the employees
that the proposed changes were not a matter for discus-
sion but that they were going into effect whether they
Sec 2(11) of the Act defines "supervisor" as follows
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer , suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances , or effective.
ly to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent j udgment
i
The supervisory indicia set forth in that section are listed disjunctively
and a person must be found to be a supervisor if he possesses any one of
the described forms of authority If that person possesses authority to ex-
ercise any one of the functions listed in Sec 2(11), he is a supervisor
whether or not those powers are actually exercised NLRB Y Budd Mfg.
Co., 169 F 2d 571 (6th Cir 1948), Big Rivers Electric Corp, 266 NLRB
380, 382 (1983), Redi-Serve Foods, 226 NLRB 636 (1976) As the con-
struction supervisors used independent j udgment in responsibly directing
employees under them, they were supervisors within the meaning of the
Act
1025
liked it or not. He said that if employees did not want to
work under those conditions they did not have to and it
was up to them. He credibly testified that he did not ter-
minate any employee at that time and that it was his in-
tention to have everyone continue working under the
new conditions.2
The employees' reaction to Knittle's remarks triggered
a response by the Company. The General Counsel con-
tends that that response violated Section 8(a)(1) of the
Act. There is no contention that the Company's change
in pay procedures was unlawful. Nor is there any con-
tention that the Company unlawfully refused to bargain
with a representative of the employees concerning that
change.
B. The Events of December 22 and 23, 1983 ,
After Skip Knittle's meeting with the employees on
December 21, the employees went to work. During the
rest of the day many of the employees discussed the pro-
posed changes. Many of them felt that they could not
dig enough feet of trench during the frozen winter
months to earn a living on a per-foot basis.
About 5 p.m. that afternoon Foreman Les Meadows
had a conversation concerning the proposed change with
Project Superintendent Maxwell in Maxwell's office.
Meadows told Maxwell that there were a number of
complaints and that the employees thought the pay plan
was not going to work. Maxwell replied that it was out
of his hands and that Meadows would have to take it up
with management.
About 35 or 40 employees reported for work in the
early morning of December 22, 1983. Before beginning
work they discussed among themselves their dissatisfac-
tion with the new pay plan. They agreed to send the
foremen (who themselves were employees within the
meaning of the Act) to speak to Maxwell about the em-
ployees' dissatisfaction with the plan and to try to nego-
tiate something better. Foreman Jay Bringhurst was ap-
pointed by the employees to be their spokesman. Bring-
hurst, together with a number of other foremen, includ-
ing Wayne Evans, Norris Smith, Tony Ruiz, Murlyn
Reese , Albert Karivaka, and Roger Wines then went into
Maxwell's office. Meadows told Maxwell that there was
some moaning and groaning going on and that they
needed to have a discussion about negotiating a settle-
ment . Maxwell replied by telling Meadows to get the
names of those who were moaning and groaning and
that those employees would get a blue slip and be sent
on their way.3 Meadows told Maxwell that the foremen
did not like the new plan and that they wanted to negoti-
ate before December 25 because most of the employees
were going to take off for the Christmas week and the
2 These findings are based on the credible testimony of Knittle A
number of employees testified about Knittle's remarks They all agreed
that Knittle made it clear that a final decision had been made to imple-
ment the change but there was considerable divergence in the testimony
as to exactly what Knittle said Many of the employees were left with the
impression that they would be fired if they did not accept the new terms
of employment I believe that Knittle's recollection of what he said was
accurate
8 All witnesses referred to the Company's termination notices as "blue
slips "
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new plan would be implemented before they came back.
Maxwell said that he could not get in touch with man-
agement in Denver and that the foremen should turn in a
grievance list and then return to work.4
All the foremen except Murlyn Reese then left Max-
well's office. Reese remained to ask some questions.
While he was there he heard Maxwell tell Construction
Supervisor Justison to take a piece of paper into the shop
and get a list of the names of the people who were pro-
testing the pay change.5
When all the foremen returned to the shop, they told
the employees that there was nothing that could be done
at that time. As the employees were preparing to go to
work, Justison came into the shop with a piece of paper.
On the top of the paper was written "We refuse to work
on 12-22-83." Justison told the assembled employees that
anyone who refused to work because of the pay condi-
tions should write his name on the list. A number of em-
ployees called off their names and Justison wrote the
names on the list. Justison could not keep up with the
names being called out and he passed the list around to
have the employees sign it. He then asked whether ev-
eryone who wanted to sign had signed the list and all the
employees said "yes." While the paper was being signed,
Foreman Murlyn Reese told Justison that he was signing
the paper but was reserving his rights because he
thought they ought to sit down and negotiate. Justison
told him that it did not mean that he would be fired. 6
Justison then brought the list to Maxwell's office. There
were 39 names on the list.
A few minutes later Maxwell came into the shop. He
asked whether everyone whose name was on the list re-
fused to work because of the pay change. The employees
yelled, "Yes." Maxwell then asked whether that meant
they quit. A number of employees responded by saying,
"No."7
* These findings are based on the credited testimony of Meadows,
which was corroborated in substantial part by the testimony of other em-
ployees
8 These findings are based on the credited testimony of Reese Max-
well testified that he did not remember the foremen coming into his
office on December 22 As is discussed in more detail herein, Maxwell's
testimony was inconsistent with that of a number of fully credible wit-
nesses . Based both on the substance of his testimony and his demeanor, I
do not believe that Maxwell was a reliable or credible witness To the
extent that his testimony is inconsistent with that of Reese, I credit
Reese
6 This finding is based on the credited testimony of Reese Justison did
not testify
Maxwell testified that when he asked whether the people on the list
had quit, a number of employees nodded their heads and he had the im-
pression that the general consensus was that they had quit He testified
that he saw Bringhurst and Meadows nodding "Yes," that he heard
Bringhurst say "Yes ," and that the general consensus of the crowd was
to follow the leaders Sixteen employees testified about the incident
Though their recollection of parts of the conversation were different,
they were in complete agreement on one matter All testified to the effect
that none of the employees indicated that he was quitting Six employees
(Bnnghurst, Reese, Ruiz, Ashley, Thompson, and Baird) testified that
Maxwell asked if they quit and employees said no Other employees testi-
fied that they did not hear anything about quitting Reese testified that he
heard Maxwell ask in a low voice whether the names on the list meant
that they quit Reese further averred that only some of the employees
could hear Maxwell and that Reese answered by saying that he was not
quitting Reese's version of the conversation was credible It also explains
why some of the employees heard Maxwell's remark about quitting and
others did not Maxwell's version was not credible It was totally incon-
Maxwell then told Justison to get the "son-of-bitches"
off the lot. Justison told the employees to leave and they
did.
Though all 39 employees whose names were on the
list left at the same time, a number of them returned
shortly thereafter. Company supervisors spoke to Fore-
men Karivaka and Samaniego and a short time later
those foremen and their crews agreed to go back to
work. The rest of the employees spent the remainder of
the day standing outside the Company's premises where
they picketed. Those employees were- Brent Ashley,
Robert Baird, Jay Bringhurst, Perry Cooper, Wayne
Evans, Mark Flores, Rory Howells, Chris Ktestes, Les
Meadows, Murlyn Reese, Toby Romero, Norris Smith,
Jerry Thompson, Terry Eastmen, Tom Pacheco, Tony
Ruiz, Roger Wines, Bob Howells, and Bob Wines.8
Some time between 11 a.m. and 1 p in. that day Super-
visors Rollie Hendricks and Carl Boyer came near the
gate. Hendricks told the employees that they had blown
it and that their blue slips were already stacked up.
About noon that day Maxwell, who was standing
inside the company fence, took pictures of the pickets 9
During the day the pickets discussed the situation.
They all decided that they would go back to work the
following morning.
At 7:30 a.m. on December 23, 1983, all 19 of the al-
leged discriminatees named above reported for work.
They were all dressed in their work clothes. Five or ten
minutes later Maxwell came from his office with a stack
of blue slips in one hand and a stack of paychecks in the
other. He gave them to the office personnel and told
them to pass them out. The blue slips gave "quit" as the
reason for separation and "refused to work for better
conditions so he quit" for the explanation. The forms
showed the last day worked as December 21, 1983. They
were signed by Maxwell and dated December 22, 1983
After looking at the slips, a number of employees told
Maxwell that they had not quit. Employee Mark Flores
went up to Maxwell and said that he did not agree with
the blue slip's remark that he had quit. Maxwell said that
he would not change the blue slip and that if Flores had
any disagreements about it, it was too bad Maxwell
went back to his office and the employees were told by
sistent with the testimony of all the other witnesses, many of whom were
convincing In addition his testimony that he had no recollection of the
meeting with the foremen the day before cast substantial doubt on his be-
lievability In sum I do not credit Maxwell and I do credit all of the em-
ployees who testified that none of the employees indicated that they quit
8 The complaint alleges all those employees, other than Bob Howells
and Bob Wines, are discriminatees In addition, the second amendment to
the complaint alleges as additional discriminatees employees whose names
are unknown to the General Counsel but are known to Respondent At
the trial Les Meadows credibly testified that Bob Howells and Bob
Wines, as well as the employees named in the complaint, all left the plant
and stood outside the fence on December 22 and all received blue slips
on December 23 Maxwell acknowledged in his testimony that the 17 em-
ployees named in the complaint signed the list, left the premises, and
were terminated He testified that he could not recall anyone else receiv-
ing a blue slip I credit Meadows with regard to the termination of Bob
Howells and Bob Wines
e Maxwell acknowledged that he took the pictures He averred that he
did not know why he did it and that he did not show the pictures to
anyone else The complaint does not allege nor does the General Counsel
contend that the picture-taking constituted a violation of the Act
DIRT DIGGER, INC
the police , who were present , to leave. As the employees
were leaving, Foreman Bringhurst was called into Max-
well's office . He went into the office with one of the po-
licemen. Bringhurst asked Maxwell whether the employ-
ees could make a list of grievances and bring them to
him and Maxwell replied that they could . Bringhurst
then asked if there was any chance of their getting their
jobs back and Maxwell replied , "Once you quit Ray
Knittle there is no chance."
In his testimony , Maxwell admitted that a number of
people signed the list described above, that some of those
people continued to work in spite of signing the list and
others left the premises , and that the ones who left the
premises were given the blue slips and the ones who kept
working that day did not receive them. He further ad-
mitted in his testimony that the only reason the employ-
ment of those employees ended was that they com-
plained about the pay change and walked outside the
gate.
After Meadows went outside the gate with the other
employees , he remembered that he had left his tools in
his truck. When he went back for his tools he spoke to
Maxwell . He told Maxwell that he was sorry about the
situation because he liked working there. Maxwell re-
plied that , if Meadows had not been standing out there
by the barrel when Maxwell was taking the pictures and
writing down the list of names, Meadows would prob-
ably still have his job . Maxwell also said that Meadows
would probably never be able to lay cable again because
TCI had requested that Maxwell get the names and pic-
tures of the employees who were out there. i o
Maxwell admitted in his testimony that he told a few
of the employees that if they had not gone outside the
gate they would have a job.
After their termination , the employees filed a claim for
unemployment insurance with the Utah Department of
Employment Security . A hearing was held on February
7, 1984. The claim was allowed . In a decision by the De-
partment of Employment Security 's appeal section, it
was held that the employees ' working conditions were
changed significantly and that the proposed plan consti-
tuted an offer of new work . It was further held that the
employees ' failure to accept the offer of new work was
justified and that they left work voluntarily with good
cause so as to be eligible for unemployment insurance.
Though that decision has been fully considered, it is
noted that it was oriented to resolve a claim under state
law and it did not purport to consider the impact of the
National Labor Relations Act. A cessation of work by
employees may be a voluntary leaving of work for good
cause for the purposes of unemployment insurance and a
protected concerted activity under Section 7 of the Act
rather than a "quit" for the purpose of the Federal law.
10 These findings are based on the credited testimony of Meadows
Maxwell in his testimony, acknowledged that he received a call from
TCI asking for a list of the employees who had walked off the job He
testified that he did not give the list or the pictures to anyone He
averred that he did not recall telling Meadows about the TCI conversa-
tion and he denied telling anyone that he was going to blackball them or
to see to it that they never were able to lay cable again To the extent
that Maxwell 's testimony is inconsistent with that of Meadows, I credit
Meadows
1027
The decision of the Department of Employment Security
was admissible in evidence but is not controlling. Western
Publishing Co, 263 NLRB 1110 fn. 1 (1982)
C. Analysis and Conclusions
Under Section 7 of the Act employees have the right
to engage in concerted activity for their mutual aid or
protection. An employer violates Section 8(a)(1) of the
Act when it interferes with that right.
On December 22, 1983, the Company's employees dis-
cussed among themselves their dissatisfaction with the
Company's plan, which had been announced the day
before, that would substantially change their wages and
working conditions. They selected some of their group
to act as spokesmen and those spokesmen in effect pro-
tested the proposed changes to company management,
and tried to negotiate a satisfactory plan. The action of
the employees in protesting the proposed changes and in
seeking negotiations was clearly concerted activity for
the purpose of their mutual aid or protection. The pro-
test manifested itself in a manner that was wholly con-
sistent with the Federal labor law, an attempt to negoti-
ate a solution, and was protected by Section 7 of the
Act. One of the employees' spokesmen, Meadows, told
Project Manager Maxwell that there was some moaning
and groaning going on and that they needed to have a
discussion about negotiating a settlement . Maxwell re-
plied by telling Meadows to get the names of those who
were moaning and groaning and that those employees
would get a blue slip (be terminated) and be sent on their
way. That protest , i.e., moaning and groaning , and the
attempt to negotiate a solution with Maxwell were pro-
tected activities and Maxwell interfered with those pro-
tected activities by threatening to discharge the employ-
ees for engaging in them . However that is not alleged as
a violation of the Act in the complaint or in the General
Counsel's brief and I shall therefore just consider it as
background."
On the same day the employees signed a statement in-
dicating that they would not work on December 22. The
19 employees named above refused to work and left the
Company's premises to picket. That refusal to work was
a concerted activity that also was protected under' Sec-
tion 7 of the Act. NLRB v. Washington Aluminum Co.,
370 U.S. 9 (1962). Like the protest and the attempt to ne-
gotiate with Maxwell, the refusal to work on December
22 was a concerted activity. Meyers Industries, 268
NLRB 493 (1974). As was held in ABC Prestress & Con-
crete, 201 NLRB 820, 824 (1973):
i 1 The Company's brief argues that the testimony of some of the em-
ployees establishes that on December 21, the company vice president
Skip Knittle told the assembled employees that they would be discharged
unless they accepted the new pay plan As indicated above I found that
Knittle only told the employees that the change was going into effect and
it was up to them whether they worked under those conditions or not If,
in fact, Knittle had told the employees that they would be fired unless
they accepted the change in pay plan , his statement would have inter-
fered with their Sec 7 rights The statement would have been broad
enough to be considered a threat to fire the employees if they struck in
protest of the proposed change
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unrepresented as well as represented employees
who refuse to work and leave their employers'
premises in an effort to secure more pay are en-
gaged in "mutual aid or protection" within the
meaning of Section 7 of the Act. Even if the walk-
off is unnecessary and unwise, as the United States
Supreme Court said in NLRB v. Washington Alumi-
num Co., 370 U.S. 9 (1962): ". . . it has long been
settled that the reasonableness of workers' decisions
to engage in concerted activity is irrelevant to the
determination of whether a labor dispute exists or
not." Though the word "quit" was used by at least
one employee, it is manifest from the context in
which the walkout arose that the employees were
using the walkout in an attempt to achieve their
wage demands and were not voluntarily terminating
their employee status. The employees made the pur-
pose of their action plain to Respondent and Re-
spondent was not free to treat the walkoff as a
"quit." Cf. Universal Insulation Corp. v. NLRB, 361
F 2d 406, 408 (C.A. 6, 1966), enfg. 149 NLRB 1397;
Union Camp Corp., 194 NLRB [933]. I find that the
eight employees engaged in a strike ... .
That case was somewhat unique on its facts because the
strike was to force the employer to grant a wage in-
crease at a time when it was improper under the Federal
Economic Stabilization Act of 1970 to grant such an in-
crease. The strike was therefore unprotected. However
in the instant case the concerted refusal to work was an
attempt to put pressure on the Company to grant conces-
sions or to protest company policies and was in no way
unlawful or violent, in breach of contract or otherwise
indefensible. It was a strike protected by the Act. ABC
Prestress & Concrete, supra. Cf. Anheuser-Busch, 239
NLRB 207, 207-208 (1978). The credited evidence did
not establish that any of the employees indicated an in-
tention to quit. The-Company cannot change a protected
concerted withholding of services by its employees into
an unprotected mass quitting merely by calling it a quit.
The employees withheld their services for just that
one day. On December 23 they abandoned the strike and
returned ready to go to work. The Company could have
been under no misapprehension with regard to their will-
ingness to work. They were wearing their work clothes,
a number of the employees after looking at the blue slips
which said "refused to work for better conditions so he
quit" told Maxwell that they had not quit. Employee
Flores specifically told Maxwell that the blue slip was in-
correct and that he had not quit, and Maxwell said that
he would not change the slip and that if Flores had any
disagreements it was too bad. Bringhurst, who had been
appointed spokesman for the employees, asked Maxwell
if there was any chance of the employees getting their
jobs back. I find that the Company discharged the 19
employees named above after they abandoned the strike
and offered to return to work.12
Project Manager Maxwell admitted in his testimony
that the only reason the employees were terminated was
that they complained about the pay change and walked
outside the gate. He also admitted in his testimony that
he told some of the employees that if they had not gone
outside the gate that they would have a job. Maxwell
told Meadows that if Meadows had not been standing
out there by the barrel, he would probably still have his
job. All of the surrounding circumstances make Max-
well's admissions fully believable and I find that he did
accurately report the reason for the discharges. As found
above, the employees' complaints about the pay change
and their action in walking outside the gate were both
concerted protected activities under Section 7 of the
Act. By terminating them because they engaged in those
activities, I find that the Company violated Section
8(a)(1) of the Act.
The Company raises two main defenses in its brief.
Neither are persuasive. The first is the contention that
the employees were terminated involuntarily by the
Company before the employees engaged in protected
concerted activity. The Company contends that Knittle
told the employees on December 21 that they had to
either accept the new pay procedures or they would be
fired, that the employees manifested their refusal to
accept the new pay plan by signing the paper on Decem-
ber 22, and that they were discharged for failing to
accept the new plan on December 22 when Maxwell or-
dered them off the premises. However, even if the facts
supported the Company's underlying contentions, it
would not have a viable defense The Company could
not lawfully discharge employees for failing to accept
the new pay plan. The employees had a number of alter-
natives rather than acceptance. They could quit, but the
evidence in this case does not establish any quitting.
They could also engage in a protected concerted refusal
to work under the new pay plan. That is what the em-
ployees in fact did do. The Company could not lawfully
discharge them for choosing that course of action in lieu
of agreeing to accept the changed pay plan. The Compa-
ny was not left without alternatives when the employees
took the action they did. The new plan was lawful in
itself and if the employees chose to work after the Com-
pany put the new plan into effect, the Company could
have quite properly paid them under the new plan and
refused to reimburse them on the basis of the old system.
If the employees engaged in a concerted refusal to work,
the Company could have lawfully permanently replaced
those employees. NLRB v. Mackay Radio & Telegraph
Co., 304 U.S. 333 (1938); Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970). However, economic strikers cannot be
lawfully discharged. NLRB v. International Van Lines,
409 U.S. 48 (1972). Furthermore, the employees' protest
as expressed through their foremen to Maxwell was a
concerted protected activity, rather than an unprotected
refusal to accept the wage changes.
12 The Company may have come to the decision to discharge those
employees on December 22 but that decision was not effectuated until
the employees were given their blue slips on December 23 However,
even if the employees were discharged on December 22 while they were
on stoke, the result would be the same, except that backpay would have
begun on December 22 rather than December 23. Under current Board
law, backpay begins running from the date that a sinker is discharged
Abilities & Goodwill, 241 NLRB 27 (1979), enf denied on other grounds
612 F.2d 6 (1st Cir 1979)
DIRT DIGGER, INC
The Company contends alternatively that the employ-
ees voluntarily quit their employment. As discussed in
detail above, the credited evidence does not support that
contention
As found above, on the day of the terminations, Max-
well told Meadows that Meadows would probably never
be able to lay cable again because TCI had asked for the
names of those who had walked out. Though Maxwell
couched his remark in terms of a likelihood rather than a
certainty, it still amounted to a threat to blackball Mead-
ows from the cable-laying industry because he engaged
in protected activity As such, Maxwell's statement con-
stituted an independent violation of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1 The Company violated Section 8(a)(1) of the Act by
discharging Brent Ashley, Robert Baird, Jay Bringhurst,
Perry Cooper, Wayne Evans, Mark Flores, Rory How-
ells, Chris Ktestes, Les Meadows, Murlyn Reese, Toby
Romero, Norris Smith, Jerry Thompson, Terry Eastmen,
Tom Pacheco, Tony Ruiz, Roger Wines, Bob Howells,
and Bob Wines, because they engaged in activities that
were protected under Section 7 of the Act.
2. The Company further violated Section 8(a)(1) of the
Act by threatening to blackball Meadows from the cable-
laying industry because he engaged in protected concert-
ed activities.
THE REMEDY
Having found that the Company engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Company discharged the 19
employees named above in violation of Section 8(a)(1) of
the Act, I recommend that the Company be ordered to
reinstate them and to make them whole for any loss of
earnings resulting from their discharges by payment to
each of them of a sum of money equal to the amount he
normally would have earned as wages and other benefits
from the date of his discharge to the date on which a
proper offer of reinstatement is or was made, less net
earnings during that period The amount of backpay
shall be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).13
Some of the discrimmatees testified that they would
not be interested in returning to work under the new pay
practices. However they need not make a decision on
that matter until it is meaningful in terms of the Compa-
ny's willingness to take them back. Until there actually is
an offer of reinstatement, no decision need be made by
the employee concerning his desire to return. At the
point that the offer is made, conditions may be quite dif-
ferent than they were before. As the Board held in Ed-
monds Villa Care Center, 249 NLRB 705, 706 fn. 10
(1980), enf. denied 673 F.2d 281 (9th Cir. 1982), state-
to See generally Isis Plumbing Co, 138 NLRB 716 (1962)
1029
ments by employees that they do not wish to return to
work for a company.
. . . do not constitute a waiver of their right to re-
instatement, for the questions which led to these re-
sponses were not valid offers of reinstatement, and
Respondent has not otherwise offered them rein-
statement. W.C. McQuaide, Inc., 239 NLRB 671
(1978), and cases cited at fns. 2-4 therein.. [Enfd.
617 F.2d 349 (3d Cir 1980)]
There was, however, testimony that certain employees
had in fact been offered reinstatement. Backpay for any
discriminatee would end as of the date that a bona fide
offer of reinstatement was made and no further offer of
reinstatement would be required. That would be true in
the instant case even if the offer were to return to work
under the new pay plan. The Company had the right to
implement that plan. Reinstatement matters were not
fully explored during the trial and they can properly be
resolved either by agreement of the parties or through a
backpay proceeding.
It is further recommended that the Company be or-
dered to preserve and, on request, make available 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
records necessary to analyze the amount of backpay due.
On these foregoing findings of fact and conclusions of
law and on the entire record I issued the following rec-
ommended 14
ORDER
The Respondent, Rayglo Corporation d/b/a The Dirt
Digger, Inc., Murray City, Utah, its officers, agents, suc-'
cessors and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for engaging in concerted activities that are
protected by Section 7 of the Act, including expressions
of dissatisfaction through their spokesmen, and strikes or
concerted refusals to work to protest changes in 'wages
or working conditions.
(b) Threatening to blackball any employee from the
cable-laying industry because that employee engages in
concerted protected activity. I i
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary' to
effectuate the policies of the Act.
(a) Offer Brent Ashley, Robert Baird, Jay Bringhurst,
Perry Cooper, Wayne Evans, Mark Flores, Rory How-
ells, Chris Ktestes, Les Meadows, Murlyn Reese, Toby
Romero, Norris Smith, Jerry Thompson, Terry Eastmen,
Tom Pacheco, Tony Ruiz, Roger Wines, Bob Howells,
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Bob Wines, full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or other
rights and privileges, and make them whole, with inter-
est, for lost earnings, in the manner set forth in the sec-
tion of this decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due.
(c) Expunge from its files any reference to the termina-
tion of those employees, and notify them in writing that
that has been done and that evidence of those unlawful
discharges will not be used as a basis for future personnel
action against them.
(d) Post at its Murray City, Utah place of business
copies of the attached notice marked "Appendix." 15
Copies of the notice, on forms provided by the Regional
Director for Region 27, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
is If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against employees for engaging in concerted activities
that are protected by Section 7 of the Act, including ex-
pressions of dissatisfaction through their spokesmen, and
strikes and concerted refusals to work to protest changes
in wages or working conditions.
WE WILL NOT threaten to blackball any employees
from the cable-laying industry because that employee en-
gages in concerted protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer full reinstatement to Brent Ashley,
Robert Baird, Jay Bringhurst, Perry Cooper, Wayne
Evans, Mark Flores, Rory Howells, Chris Ktestes, Les
Meadows, Murlyn Reese, Toby Romero, Norris Smith,
Jerry Thompson, Terry Eastmen, Tom Pacheco, Tony
Ruiz, Roger Wines, Bob Howells, and Bob Wines, with
backpay, plus interest.
WE WILL remove from our files any reference to the
termination of those employees and notify them in writ-
ing that that has been done and that evidence of those
unlawful discharges will not be used against them in any
way.
RAYGLO CORPORATION D/B/A THE DIRT
DIGGER, INC.