Trumbull Asphalt Co., Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1975

219 N.L.R.B. 131 (N.L.R.B. 1975)

TRUMBULL ASPHALT COMPANY 131
Trumbull Asphalt Company , Inc. and Jerold L. Miller.
Case 14-CA-8202
July 14, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On April 23, 1975, Administrative Law Judge Al-
vin Lieberman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Trumbull Asphalt Company, Inc., Hazel-
wood, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The trial
in this proceeding , with all parties except the Charging Par-
ty represented, was held before me in St. Louis, Missouri,
on January 6, 7, and 8, 1975, upon the General Counsel's
complaint dated November 25, 1974,1 and Respondent's
amended answer .2 In general the issue litigated was wheth-
er Respondent violated Section 8(a)(1) of the National La-
bor Relations Act, as amended (Act).3 Particularly, the
i The complaint was issued pursuant to a charge and an amended charge
filed, respectively, on October 17 and 18, 1974, by Jerold Miller.
2 During the trial the amended answer was amended by substituting the
following paragraph for paragraph 2c: "Respondent admits that on or
about October 16, 1974, superintendent Kleine discharged Kenneth G
Meyers, Eric Brethauer, and Donald J. Spiller, but denies that they or any
of them were discharged for engaging in protected concerted activities and
denies that they were engaged in protected concerted activities and further
states that whether or not they were engaged in protected concerted activi-
ties, they and each of them were discharged for good cause unrelated to any
such activities. Respondent further denies that they or any of them ever
requested reinstatement subsequent to their respective discharges."
principal questions for decision are as follows:
1. Was Jerold Miller, while in Respondent's employ, a
supervisor within the meaning of Section 2(11) of the
Act? 4
2. Assuming an affirmative answer to the foregoing
question, was Miller's discharge violative of Section 8(a)(1)
of the Act?
3. Was the strike engaged in by three employees, Eric
Brethauer , Kenneth Meyers, and Don Spiller protected by
Section 7 of the Act?
4. Assuming an affirmative answer to the foregoing
question, were Brethauer, Meyers, and Spiller discharged
in violation of Section 8(a)(l) of the Act because they en-
gaged in the strike?
Upon the entire record,5 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs sub-
mitted,6 I make the following:
FINDINGS OF FACT 7
1. JURISDICTION
Respondent, a corporation duly authorized to do busi-
ness in Missouri, is engaged at Hazelwood, Missouri, in the
manufacture and sale of asphalt. During 1973, a represen-
tative period, Respondent purchased materials valued in
excess of $50,000 from vendors located outside the State of
Missouri. Accordingly, I find-that Respondent is engaged
in commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (Board) is warranted.
7 In pertinent part this sec . provides
Sec 8 (a) It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
Section 7, insofar as relevant , states:
Sec. 7. Employees shall have the right to engage in . concert-
ed activities for the purpose of collective bargaining or other mutual
aid or protection . .
4 Sec 2( 11) of the Act is as follows-
Sec. 2 When used in this Act-
(11)I The term "supervisor" means any individual having authority, in
the interest of employer , to hire, transfer, suspend , layoff, recall, pro-
mote, discharge, assign, reward , or discipline other employees , or res-
ponsibly to direct them , or to adjust their grievances , or effectively to
recommend such action , if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment
5 Issued simultaneously is a separate order correcting obvious inadvertent
errors in the stenographic transcript of this proceeding.
6 Although all the arguments of the General Counsel and Respondent
and the authorities cited by them , whether appearing in their briefs or made
orally at the trial, may not be discussed in this Decision , each has been
carefully weighed and considered.
r Respondent's motions made at the conclusion of the trial , upon which I
reserved decision , are disposed of in accordance with the findings and con-
clusions set forth in this Decision
219 NLRB No. 33
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. INTRODUCTION
Briefly, this case is concerned with Respondent's dis-
charge of four individuals during a strike at Respondent's
plant in which they participated. The General Counsel
contends that all were employees within the meaning of the
Act; their strike, in protest over working conditions they
considered to be unsafe, was protected; they were dis-
charged because they struck; and the termination of their
employment was, therefore, violative of Section 8(a)(1) of
the Act.
Respondent has taken issue with the General Counsel on
all points. It first contends that one dischargee, Jerold Mill-
er, was a supervisor and that he was dismissed for improp-
er performance of his supervisory duties.
Concerning the nature of the strike, it is Respondent's
position that it was unprotected because its ostensible pur-
pose of protesting claimed unsafe working conditions was
a pretext to mask its real object. This, Respondent states,
was to exert pressure on it to retain Miller in its employ
when it became apparent that he was about to be dis-
charged.
Respecting the discharge of the three rank-and-file em-
ployees during the strike, Respondent, on the assumption
that the strike was over unsafe working conditions, claims
that it had no clear knowledge that this was the reason for
the work stoppage. Absent such knowledge, Respondent
argues, it cannot be held to have violated the Act by dis-
charging the strikers. Finally, Respondent asserts that it
terminated the employment of the striking employees be-
cause they did not comply with established attendance
rules and because they created an aura of fear in the plant
during the strike.
111. PRELIMINARY FINDINGS AND CONCLUSIONS 8
A. Respondent's Operations
Respondent's main office is located in Chicago, Illinois.
From there Respondent administers its several plants, in-
cluding one in Atlanta, Georgia, and one in Hazelwood,
Missouri, with which this proceeding is concerned.
The principal product manufactured at Respondent's
Hazelwood plant is asphalt. This material is produced in a
vessel called a converter. In this apparatus oil and other
ingredients are converted into asphalt by being subjected
to a high degree of heat. The employees who monitor the
processing of the raw material in the converters are known
as operators.
Respondent's plant is in operation around the clock and
on Saturdays and Sundays. Respondent's regular day-shift
personnel , exclusive of clerks and supervisors , consists of
one operator ; one maintenance man, whose function is to
keep the plant and equipment in repair; two truckdrivers,
B The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent 's alleged unfair labor
practices and to the conclusions to which they may give rise . To the extent
that the contentions of the parties relate specifically to the findings made
here they will be treated here, although they, as well as the findings, may
again be considered in other contexts.
who bring raw material to Respondent's plant and deliver
asphalt to customers ; and five general laborers, one of
whom is designated as a leadman. Their duties include
making containers in which asphalt is shipped, pouring as-
phalt into these containers, and loading trucks.
Respondent 's regular complement of laborers is augment-
ed on an almost daily basis by from two to four temporary
employees procured from agencies referred to during the
trial as Manpower and Labor Force.
Respondent's plant is managed by a salaried superinten-
dent with the assistance of an hourly rated general fore-
man. At all material times the general foreman received
$4.05 an hour. Operators were paid $3.86 an hour, laborers
$3.25 an hour, and truckdrivers on a per-load basis.
Finally, respecting Respondent's employees, none was
represented by a union at any relevant time.
B. Miller's Status
From about April 1973 until his discharge on October
16, 1974,9 Jerold Miller was the general foreman in
Respondent's plant. The General Counsel's position is that
Miller, despite his title, was a rank-and-file employee. Re-
spondent, on the other hand, asserts that Miller was a su-
pervisor. On the evidence taken as a whole it is my opinion
that Respondent has the better of the argument.
For about a year before his appointment as general fore-
man Miller worked for Respondent as an operator. During
this period the position of general foreman was vacant.
This vacancy put a heavy burden on Bobby Neeley, the
plant superintendent, which he met, as he testified, by
"work[ing] extra hours and stay[ing] within touch 24 hours
a day."
While doing this, Neeley watched the manner in which
Miller performed his duties as an operator. Being satisfied
from this lengthy observation that Miller was qualified to
be general foreman. Neeley promoted Miller to that posi-
tion and told him, as Neeley stated, that "he would be in
charge of production." Upon announcing Miller's promo-
tion to the plant employees, they were informed, as Neeley
further testified, that Miller "would be in charge of the
operation of the plant."
As general foreman Miller did a substantial amount of
what he described as "physical" labor. This included spot-
ting and loading trucks, operating converters, pouring as-
phalt into containers, and doing janitorial and mainte-
nance work. This occupied about 80 percent of Miller's
time.
Miller also assisted Neeley, the plant superintendent, in
managing the plant. In this regard, Miller testified that he
was merely a "messenger boy" carrying messages and or-
ders from Neeley to the employees. His own testimony, let
alone that given by other witnesses, establishes the hyper-
bole of Miller's characterization of his position.
Thus, daily, at the end of the day shift, Miller scheduled
the work to be done by the operators on the next three
shifts. Each day Miller conferred with Neeley concerning
the work to be done that day and the next and concerning
9 The complaint alleges that Miller's discharge was violative of Section
8(a)(l) of the Act
TRUMBULL ASPHALT COMPANY 133
the scheduling of overtime work. From time to time Miller
also conferred with Neeley concerning the plant's produc-
tion quota and how it was to be met . Miller was empow-
ered to, and did, grant time off when employees requested
it, if their reason warranted their being excused. In addi-
tion, Miller effectively recommended a laborer's promo-
tion to leadman. All of these negate Miller's concept of
himself as being a "messenger boy" and are indicative of
his supervisory status.10
The findings in the preceding paragraph are based on
testimony given by Miller, himself. Other witnesses gave
testimony also indicating that Miller occupied a much
more exalted position than "Messenger boy."
In this regard , Kenneth Meyers , 11 an operator, credibly
testified that if an emergency arose during the course of a
day which required him to leave the plant he asked Miller
or Neeley, the plant superintendent, for permission to do
so. Further, in this vein, Meyers related that on one occa-
sion he asked Miller whether he could stop work before the
end of his shift. Because, as Meyers testified, he "didn't
have a good enough reason to leave" Miller did not excuse
him.
Neeley also testified credibly respecting Miller's status.
His testimony likewise establishes that Miller was not the
lowly "messenger boy" he described himself as being. The
most telling evidence in this regard given by Neeley, upon
which the findings set forth below have been made, con-
cerned the part Miller played in the hire, promotion, disci-
pline, and discharge of employees."
I have already found that almost daily Respondent em-
ploys from two to four temporary laborers and that these
employees are furnished by agencies known as Manpower
and Labor Force. The decision as to how many temporary
employees to hire on a particular day was made either by
Miller or Neeley in accordance with certain variables with-
in their knowledge, including the amount of material to be
processed, how much work had to be done to fill the orders
on hand, and the time it would take a given number of
laborers to do this, taking into account their other work.
When, based on these criteria , Miller made the determi-
nation to hire a certain number of temporary laborers to
work the next day he informed Neeley, the plant superin-
tendent , of what he had decided and Neeley never dis-
agreed with Miller's decision in this regard. Further, when
the decision to hire temporary laborers was made by Miller
he telephoned Manpower and Labor Force and contracted
for the number of employees needed. Miller did this, as
Neeley testified, "over 100 times probably." 13
10 See , for example , Bedford Discounters, Inc., 204 NLRB 509 (1973) (pre-
paring work schedules); Birmingham Fabricating Company, 140 NLRB 640,
642 (1963) (granting time off); Agawam Food Mart, Inc., 162 NLRB 1420,
1424 (1967) (recommending promotions).
11 Meyers was discharged on October 16, 1974. His discharge is alleged in
the complaint as having been violative of Sec . 8(a)(1) of the Act.
12 It needs no citation of authority to establish that participation in mat-
ters of this nature to the extent that Miller did, as will appear , strongly
indicates that he was a supervisor.
13 Miller did not deny that he determined on particular days how many
temporary laborers to hire. His testimony , in this regard , touched only on
who made the telephone call to the employment agency. This, Miller stated,
was done either by him or Neeley, and that he did so "if [Neeley] asked
[him] to call for so many men of a morning ." Reconciling Miller's testimony
In about September 1973 an operator's position became
vacant. Upon Miller's recommendation to Neeley, Mer-
yers, who was then employed as a laborer, was promoted to
fill the vacancy. While Meyers was working as an operator
Miller warned him several times about his not showing up
for work. Ultimately, Miller suspended Meyers for this rea-
son.
Not only did Miller warn and suspend Meyers because
of his erratic attendance, but he also recommended that a
laborer, Lloyd Roberson, be discharged for the same rea-
son.14, This recommendation was taken into account by
Neeley in terminating Roberson's employment.15
That Miller was not a mere "messenger boy" for Neeley,
the plant superintendent, is further shown by the wages he
received and by the differential between his wages and
those received by the operators and laborers.16 It seems to
me that a "messenger boy" would not be paid $4.05 an
hour, nor would a "messenger boy" be paid 19 cents an
hour more than the operators and 80 cents an hour more
than the laborers.17
On the basis of the foregoing, it is my opinion that Miller
was possessed of sufficient attributes to be classified as a
supervisor. Accordingly, I conclude that while holding the
position of general foreman in Respondent's employ Miller
was a supervisor within the meaning of the Act.
In arriving at my conclusion that Miller was a supervisor
I gave consideration to the fact that for 80 percent of his
time he performed "physical" labor. Concerning this, how-
ever, the Board has held that "the mere fact . . . that a
supervisor spends a large part of his time in the perfor-
mance of manual labor does not necessarily affect his sta-
tus as a supervisor." Wilson Transit Company, 80 NLRB
1476, 1478. See also Bedford Discounters, Inc., 204 NLRB
509 (1973), and Steelweld Equipment Company, Inc., 76
NLRB 831, 833. In the last cited case individuals were
found to be supervisors notwithstanding that they spent
"the major . . . portion of their time [in one case 90 per-
cent] in manual work."
Although I have found that Miller was a supervisor, it
does not appear that he ever adjusted grievances or, as
Respondent's employees have never at any relevant time
been represented by a union, engaged in collective bargain-
on this point with that given by Neeley, Miller's statement may be con-
strued as being a reference to times when Neeley made the decision to hire
temporary laborers, but for some reason could not call the employment
agency himself.
14 Respecting this, Neeley testified that Roberson habitually "would stay
out two or three days at a time" In view of these absences Miller told him
that because Roberson was "never going to straighten up, we might as well
fire him."
15 Miller denied , generally, having "anything to do with Meyers being
disciplined or suspended" or "with [Roberson] losing his job." However, his
general denials are unconvincing in the face of Neeley's specific testimony
to the contrary. See, in this connection , C. V Uranga , d/b/a Paso Del Norte
Oil Company of Eagle Paso, 173 NLRB 635, 638 (1968), enfd . 468 F .2d 1397
(C.A. 5, 1972).
16 As I have found , at all material times operators and laborers were paid,
respectively, $3.86 and $3 25 an hour, whereas Miller received $4.05 an
hour
17 Wage diffentials such as these, taken in connection with the other indi-
cia of Miller's supervisory status appearing above, also point to Miller's
standing as a supervisor Bedford Discounters, Inc, 204 NLRB 509: Birming-
ham Fabricating Company, 140 N LRB 640, 641 (1963): United States Gyp-
sum Company , 120 NLRB 906, 908 (1958)
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Nor does it appear that Miller had authority to adjust
grievances or to bargain on behalf of Respondent.
C. The Strike and Its Nature
For several months before October 1974 18 the employ-
ees in Respondent 's plant were restive over what they con-
sidered to be unsafe working conditions. They talked about
this among themselves and complained to Bobby Neeley
and Jerold Miller, respectively, plant superintendent and
general foreman. Notwithstanding that the conditions
about which they complained were not remedied, the em-
ployees took no other action until mid-October. At that
time , as will appear, they engaged in a strike.
The strike was triggered by an explosion in the plant on
the night of Thursday or Friday, October 10 or 11. Ken-
neth Meyers was monitoring the converters that night and
had he not, fortuitously, left his work station he could have
been seriously affected by the blast.
Meyers, by telephone, immediately reported the explo-
sion to Neeley and Miller. During his conversation with
Miller, Meyers stated, as he testified, that he "was going to
do something about [the explosion and] about the . . . con-
ditions of the plant."
On Saturday, October 12, Miller informed Neeley of a
clogged converter line which he could not fix because he
had injured his back earlier in the week. Accordingly, Nee-
ley came to the plant the next afternoon, during Meyers'
shift, to fix the clogged line. As he was doing so, he grum-
bled about having to make the repair which Miller should
have made the previous day.
About 8 p.m. on Sunday, October 13, after Neeley had
already left the plant and while Meyers was still working,
Miller arrived. Taking advantage of what was, apparently,
his first opportunity to do so face-to-face, Meyers again
spoke to Miller about the explosion. As Meyers put it, he
once more told Miller that he "was going to do something
about it . . . and . . . everybody else [working in the plant]
felt the same way as [he] did."
While they were talking about the explosion Meyers in-
formed Miller that Neeley had earlier repaired the clogged
converter line and was upset about Miller's not having
done the job. Not liking what Meyers reported, Miller tele-
phoned Neeley to express his displeasure and to tell Neeley
that he had an appointment with his physician the next day
to have his back treated.
Meyers then resumed his discussion with Miller about
doing something to remedy what Meyers thought were un-
safe conditions in the plant. As a first step it was decided to
call as many employees as could be reached and ask them
to come to the plant for a meeting.
Two employees, Eric Brethauer 19 and J. W. Walker, re-
sponded. The four people present talked about safety con-
ditions at the plant, concerning which, Miller testified, "ev-
erybody had a beef." All agreed to strike the next day and
go to the St. Louis, Missouri, office of the Occupational
is All dates hereinafter mentioned fall within 1974.
19 The later discharges of Brethauer and a third employee . Don Spiller,
like those of Miller and Meyers , are also alleged in the complaint as having
been violative of Sec . 8(a)(1) of the Act.
Safety and Health Administration (OSHA) to file a com-
plaint against respondent.
Word of what those who attended the meeting at the
plant Sunday evening intended to do spread and the next
morning, October 14, about six employees, including Bre-
thauer, Meyers, and Don Spiller, and Miller, the general
foreman, met at Brethauer's home. Those present decided,
as Meyers stated, to "stay out of work until [they were]
positive that something was going to be done in [the] plant
to fix it" and to go to OSHA "to file out a grievance." En
route, however, they learned that the OSHA office was
closed because that day was a holiday, Columbus Day.
Notwithstanding their inability to make their complaint
to OSHA on Monday, October 14, none of the employees
who met at Brethauer's home worked that day.
During the evening of October 14 Neeley, the plant su-
perintendent, reported to Bud Morgan, Respondent's oper-
ations manager in Chicago, that, as Neely testified, "no-
body had showed up for work." As will appear, the next
morning there was also an absence of employees from the
plant and Neeley again telephoned Morgan to advise him
of this. Morgan informed Neeley, as he further testified,
that Marvin Kleine, the manager of respondent's Atlanta,
Georgia, facility would be sent to the plant "to . . . help
[him] out."
On Tuesday, October 15, Miller, the general foreman,
and the employes who had gathered at Brethauer's home
the day before, except Spiller , again met at Brethauer's
house from which place they went to the OSHA office.
There they were furnished with complaint forms, instruct-
ed to fill them out, mail one to OSHA, and serve one on
Respondent. With the forms in hand, the employees went
to the home of Lloyd Roberson, who had formerly been
employed by Respondent,20 where Spiller joined them.
At Roberson's house the OSHA complaint forms were
prepared and one was mailed to OSHA. The other, signed
by Brethauer, Meyers, Spiller, and two other employees,
Robert Shepard and Walker, was retained for later service
on Respondent.
As was the case the previous day, no employee who
signed the OSHA complaint which was to be delivered to
Respondent worked on October 15.
That afternoon Brethauer and Meyers went to the plant
and gave the signed OSHA complaint to Neeley, the plant
manager . They told Neeley that a complaint had been filed
with OSHA; that the employees "are on strike"; and that
they would not return to work until they were "positive
that the plant was going to be fixed." Neeley replied that
the matter was "out of his hands"; that "somebody was
coming down from Chicago"; and that "he'd try to arrange
a meeting for [them] to talk to him." 21
On Wednesday, October 16, some of the strikers, but not
Brethauer, Meyers, and Spiller (hereinafter sometimes col-
20 Miller did not accompany them to Roberson's home.
i1 The findings in this paragraph are based upon the testimony of Bre-
thauer , Meyers, and Neeley. The quotations appearing in the text are taken
from the account of what transpired at their meeting with Neeley given by
Brethauer and Meyers . Concerning the announcement that the employees
"are on strike" Neeley testified that he didn 't "recollect anybody ever telling
[him] they were on strike." I do not construe Neeley's failure to remember
being told by the employees that they were on strike as a denial that he was
so informed.
TRUMBULL ASPHALT COMPANY
lectively referred to as the Three) returned to work. Also
on this day Marvin Kleine, the manager of Respondent's
Atlanta facility, arrived at the plant to assist Neeley in
dealing with the strike and the filing of the OSHA com-
plaint.
During the afternoon of October 16 Brethauer and Mey-
ers spoke to Kleine at the plant. They told Kleine almost
exactly what they had said to Neeley the previous day; i.e.,
that a complaint had been filed with OSHA; that they were
on strike; and that those employees still on strike would
return to work when the matters about which they had
complained to OSHA; namely, the plant conditions they
thought were unsafe, had been remedied. They also told
Kleine that they had not quit their employment 22
Although disputed by Respondent, it seems clear from
the evidence just recounted that the strike was to protest
conditions in the plant the strikers thought were unsafe and
to force Respondent to remedy them. It is well settled that
a strike over working conditions considered by employees
to be hazardous, or even merely uncomfortable, is a form
of concerted activity protected by Section 7 of the Act. See,
for example, N.L.R.B. v. Washington Aluminum Company
Inc., 370 U.S. 9 (1962); Union Boiler Company, 213 NLRB
818 (1974); Essex International, Inc., 213 NLRB 260
(1974); G. W. Murphy Industries, Inc., Portable Electric
Tools Division, 183 NLRB 996, 999 (1970).
Respondent contends that the strike was unprotected by
Section 7 of the Act because although its ostensible pur-
pose was to protest unsafe working conditions this was a
pretext to mask its actual object. The real reason for the
strike, Respondent asserts, was to exert pressure on it to
retain Miller, a supervisor, in its employ when it became
apparent to the employees that he was about to be dis-
charged.
I reject this contention as being unsupported by the evi-
dence. But even were I to find, which I do not, that the
strike's true object was in accordance with Respondent's
assertion , in the circumstances of this case such a strike,
like a strike over unsafe working conditions, also would
have fallen within the protection of Section 7 of the Act.
This would be so because Miller, notwithstanding his
supervisory status, did not, as I have found, adjust griev-
ances or engage in collective bargaining . See, in this regard,
N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941,
947 (C.A. 1, 1961). There it was stated that where dis-
charged supervisors were "[not representatives for the ad-
justment of grievances or collective bargaining ] strike ac-
tion seeking [their] reinstatement . . . is not unprotected
concerted activity."
In sum , I conclude , respecting the strike's reason and
nature, that it was for the purpose of protesting, and ob-
taining a remedy for, working conditions considered by the
strikers to be unsafe and that the strike was, therefore, pro-
tected by Section 7 of the Act. I further conclude that it
was not a purpose of the strike to compel Respondent to
refrain from discharging Miller.
22 This was said in response to Kleine 's observation that "as far as [he]
was concerned they had quit."
IV. THE ALLEGED UNFAIR LABOR PRACTICES
135
A. Facts Concerning Respondent's Alleged Violations of
Section 8(a)(1) of the Act 23
On October 16 Marvin Kleine, the official sent by re-
spondent to assist the plant superintendent in dealing with
the work stoppage described above, discharged Eric Bre-
thauer, Kenneth Meyers, and Don Spiller, who at the time,
were still on strike.24 As Kleine testified, he "fired [the
three] for failure to report for work or call in notifying that
they would be out."
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1)
of the Act
The three "fail[ed] to report for work" because they
were engaged in what I found to be a protected strike.
Accordingly, to fire the three for their "failure to report for
work," as Kleine testified, was to discharge them for parti-
cipating in the protected work stoppage. Discharging em-
ployees for this reason is clearly violative of Section 8(a)(1)
of the Act. If authority is required for this proposition it is
readily found in N.L.R.B. v. Washington Aluminum Compa-
ny, 370 U.S. 9 (1962); Union Boiler Company, 213 NLRB
818 (1974); Essex International, Inc., 213 NLRB 260
(1974); and G. W. Murphy Industries, Inc., 183 NLRB 996,
999 (1970).
Notwithstanding the foregoing, Respondent seeks to
justify its discharge of the three on several grounds. Thus,
Respondent asserts on brief that their employment was ter-
minated for "infractions of established attendance rules";
namely, their failure to call in to report their absences; that
it "had no clear knowledge that any sort of concerted walk-
out on the part of any of the employees named in the
OSHA complaint had occurred until after [the three] were
discharged"; and that during the strike "an aura of fear"
created by the strikers permeated the plant.
Concerning the first ground set forth above, the three's
"infractions of established attendance rules." I have been
unable to find in the record any evidence that Respondent
had promulgated a rule requiring employees to notify it of
their absences from work. But even if I am mistaken in this
and such a rule was, in fact, in existence at the time of the
strike, noncompliance with it by the three does not, in the
circumstances of this case, relieve Respondent from liabili-
ty for discharging them. In rejecting a somewhat similar
defence, the Supreme Court in N. L.. R.B. v. Washington Alu-
minum Co., 370 U.S. 9, 16-17, had this to say:
Nor can we accept the company's contention that
23 The complaint states that among Respondent's violations of Sec.
8(axl) of the Act is its discharge of Jerold Miller because he "engaged in
protected concerted activities." It being well settled that a supervisor, as I
have found Miller to have been , is not protected by the Act, his discharge
did not constitute an unfair labor practice even if it was for the reason set
forth in the complaint and not, as Respondent contends , for improper per-
formance of his supervisory duties Accordingly, my order will provide for
the dismissal of so much of paragraphs 4 and 5 of the complaint as relate to
Miller's discharge
24 As already earlier noted , these discharges are alleged in the complaint
as having been violative of Sec 8(a)(l) of the Act.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it admittedly had an established plant rule
which forbade employees to leave their work without
permission of the foreman, there was justifiable
"cause" for discharging these employees, wholly sepa-
rate and apart from any concerted activities in which
they engaged in protest against the poorly heated
plant. Section 10(c) of the Act does authorize an em-
ployer to discharge employees for "cause" and our
cases have long recognized this right on the part of an
employer. But this, of course, cannot mean that an
employer is at liberty to punish a man by discharging
him for engaging in concerted activities which § 7 of
the Act protects. And the plant rule in question here
purports to permit the company to do just that for it
would prohibit even the most plainly protected kinds
of concerted work stoppages until and unless the per-
mission of the company's foreman was obtained.
The second ground on which Respondent seeks exculpa-
tion for the discharges, its claimed lack of knowledge of the
strike, is likewise without merit. If knowledge of the strike
and its nature by Respondent is a factor which must be
shown in order to establish that the discharges were viola-
tive of Section 8(a)(1) of the Act,25 I find that Respondent
had such knowledge.
Thus, Jerold Miller, then Respondent's general foreman
and, as I have found, a supervisor, attended the conference
in the plant on Sunday, October 12, at which the employ-
ees present, Kenneth Meyers, Eric Brethauer, and J. W.
Walker, decided to strike the next day and file a complaint
with OSHA regarding working conditions they thought
were unsafe. On Tuesday, October 15, Brethauer and Mey-
ers served the OSHA complaint on Bobby Neeley, the
plant superintendent, and at the same time told him that
the employees "are on strike" and that they would not re-
turn to work until they were "positive that the plant was
going to be fixed." On the next day Brethauer and Meyers
gave the same information to Marvin Kleine, the official
Respondent sent to the plant to assist Neeley in dealing
with the work stoppage.
The final ground on which Respondent rests its conten-
tion that the discharge of the three was not violative of
Section 8(a)(1) of the Act is that during the strike an "aura
of fear" generated by the strikers pervaded the plant. The
short answer to this argument is that it is not supported by
probative evidence. Furthermore, the "aura of fear," if
there were such a thing, was not referred to by Kleine as
being a reason for his having discharged the three. Reiter-
ating Kleine's testimony in this regard, he said that he
"fired [the three] for failure to report for work or call in
notifying that they would be out."
Accordingly, I conclude that by discharging the three for
engaging in a protected strike Respondent violated Section
8(a)(1) of the Act.
25 But see G. W Murphy Industries, Inc, 183 NLRB 996, 1000 (1970).
V. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices engaged in by Respondent
occurring in connection with its operations described in
section I , above , have a close , intimate , and substantial
relationship to trade , traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act by discharging Eric Brethauer , Kenneth Meyers,
and Don Spiller because they engaged in a protected strike
my recommended Order will require Respondent to cease
and desist from further violations of Section 8(a)(1) of the
Act and to take such affirmative action as will effectuate
the policies of the Act. In this connection, my recommend-
ed Order will require that Respondent offer immediate and
full reinstatement to Brethauer , Meyers , and Spiller and
make them whole for any loss of earnings they may have
suffered as a result of their unlawful discharge . Any back-
pay found to be due to Brethauer , Meyers , and Spiller shall
be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and shall
include interest in the amount and manner provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. At all material times Jerold Miller was a supervisor
within the meaning of the Act.
3. By discharging Jerold Miller respondent did not en-
gage in an unfair labor practice within the meaning of Sec-
tion 8(a)(1) of the Act.
4. The strike against Respondent engaged in by Eric
Brethauer, Kenneth Meyers , and Don Spiller fell within
the protection of Section 7 of the Act.
5. By discharging Eric Brethauer , Kenneth Meyers, and
Don Spiller for participating in the strike referred to in
Conclusion of Law 4, above, Respondent has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8 (a)(1) of the Act.
6. The unfair labor practices engaged in by Respondent,
as set forth in Conclusion of Law 5, above, affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
TRUMBULL ASPHALT COMPANY 137
ORDER 26
Respondent , Trumbull Asphalt Company, Inc., its offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging , taking any other disciplinary action
against, or in any manner affecting adversely the hire or
tenure of employment or any term or condition of employ-
ment , of employees for engaging in any activity protected
by, or guaranteed in, Section 7 of the National Labor Rela-
tions Act, as amended.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form , join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing , or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National La-
bor Relations Act, as amended , or to refrain from any or
all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in con-
formity with Section 8(a)(3) of said Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Offer to Eric Brethauer , Kenneth Meyers , and Don
Spiller immediate and full reinstatement as employees
without prejudice to their seniority or other rights or privi-
leges and make them whole , in the manner set forth in the
section of this Decision entitled "The Remedy ," for any
loss of earnings they may have suffered by reason of their
unlawful discharge.
(b) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its premises in Hazelwood , Missouri, copies
of the attached notice marked "Appendix." 27 Copies of
said notice , on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places , including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region -14, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that so much of paragraphs 4 and
5 of the complaint as relate to the discharge of Jerold Mill-
er be, and they hereby are, dismissed.
26 In the event no exceptions are filed as provided by Seca-102.46 of the
Rules and Regulations of the National Labor Relations Board the findings.
conclusions , and Order her@in shall, as provided in Sec , 102.48 of the Rules
and Regulations , be adopted by the Board and become its findings , conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
pur2oses.
2 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all parties had the opportunity to present evidence
and arguments , it has been decided that we, Trumbull As-
phalt Company, Inc. have violated the National Labor Re-
lations Act. We have, therefore, been ordered to post this
notice and carry out its terms.
WE WILL NOT in any way interfere with any right
given employees by the National Labor Relations Act.
WE WILL NOT fire any employee or otherwise disci-
pline any employee because he takes part in a strike to
protest working conditions believed by the striking
employees to be unsafe, or because he takes part in a
strike or other lawful action to protest any working
condition, or because he takes part in a strike to get
better working conditions.
As it has been decided that we fired Eric Brethauer, Ken-
neth Meyers, and Don Spiller because they took part in a
strike to protest working conditions they thought were un-
safe.
WE WILL immediately offer to take Eric Brethauer, Ken-
neth Meyers, and Don Spiller back to work for us.
WE WILL pay Eric Brethauer, Kenneth Meyers, and Don
Spiller any wages lost by them because we fired them.
TRUMBULL ASPHALT COMPANY, INC.