Tyee Construction Co.

National Labor Relations Board - Board Decisions

Mar 9, 1973

202 N.L.R.B. 307 (N.L.R.B. 1973)

TYEE CONSTRUCTION CO. 307
Tyee Construction Co. and Harold J . Honeycutt and
James Ingraham . Case 19-CA-5386
March 9, 1973
DECISION AND ORDER
On June 1, 1972, Administrative Law Judge'
Robert L. Piper issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief and a brief in support ' of the
Decision.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in certain of Respondent's
exceptions. Accordingly, the Board has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consist-
ent herewith.
The complaint alleged, the General Counsel
contended, and the Administrative Law Judge found
that Respondent violated Section 8(a)(1) of the Act
by laying off certain named employees, in order to
effectuate the Charging Parties' discharge, because of
their previously condoned unprotected concerted
activity, and by thereafter refusing to reemploy the
Charging Parties for the same reason. We agree with
Respondent's exceptions to the Administrative Law
Judge's failure to defer the instant controversy to the
dispute settlement mechanism agreed upon between
the parties for the following reasons.
In declining to dismiss the complaint and leave the
parties to resolving the dispute through their contrac-
tual grievance and appellate procedures, the Admin-
istrative Law Judge reasoned that no issue of
contract interpretation was involved in the proceed-
ing, as was the case in Collyer Insulated Wire, 192
NLRB No. 150. However, in National Radio Compa-
ny, Inc., 198 NLRB No. 1, the Board deferred to a
grievance-arbitration procedure where the contract
prohibited discipline for other than "just cause" and
provided a mechanism for the quick and fair
vindication of employee rights when that clause was
violated. The same considerations which led to
deferral in that case are present here.
Thus, Respondent, through its -membership in the
Northwest Line Constructors Chapter, National
Electrical Contractors Association, is a party to a
collective-bargaining agreement with the Union
which expires on March 31, 1973. With the exception
of two wildcat strikes, discussed infra, the record
indicates that the relationship between the parties
has been harmonious and productive for several
years. The_ contract provides the following with
respect to strikes, disputes, and the settlement
thereof:
1.4 There shall be no stoppage of work either by
strike or lockout or any subterfuge thereof
because of any disputes relating to this Agree-
ment. Any grievance which may apse between the
Union and the Contractor [Respondent] with
respect to the interpretation or application of any
terms of this Agreement or with respect to such
matters as the alleged discriminatory or arbitrary
treatment of an individual employee arising out
of his employment . . . shall be determined by
the following procedure.
1.4.1 Any employee having a grievance may pre-
sent it in person when the Steward has been
given an opportunity to be present, or the
Steward may present such grievance; in either
case it shall be presented to the foreman or super-
visor in charge in an endeavor to settle the griev-
ance on the job.
1.4.3 If the grievance has not thus been settled
as provided for in Sections 1.4.1 and 1.4.2, then it
shall be, referred . . . to the Business Manager
or his representative, who may immediately pre-
sent such grievance to the contractor or his
representative.
1.4.4 In the event the grievance is not settled by
the above procedure, the problem shall be pre-
sented to the Labor-Management Committee. . .
1.5 The Labor-Management Committee shall
consist of three (3) representing the Union and
three (3) representing the Contractor. It shall meet
regularly at such stated times as it may de-
cide. .. Meetings shall be conducted in accord-
ance with "Structure and Procedural Rules" as
adopted June 15, 1966. Any decision made by
this Committee shall be final and binding.
1.7 Should this Committee fail to agree to adjust
any matter, such shall then be referred to the
"Council on Industrial Relations for the Electrical
Construction Industry of the United States and
Canada." Its decisions shall be final and binding.
It is clear from the above that an employee may
grieve his alleged discriminatory-or arbitrary treat-
ment by Respondent; implicitly, Respondent cannot
take arbitrary or discriminatory action against an
employee.
In 1968 Charging Parties Honeycutt and Ingraham
and journeyman lineman Johnson participated in a
wildcat strike and since then pursuant to the contract
Respondent has refused to employ Johnson.2 How-
ever, in July 1971, while Respondent was converting
1 The title of "Trial Examiner" was changed to "Administrative Law 2 Sec 2 4(b) of the agreement permits Respondent "to reject any applicant
"Judge effective August 19, 1972
202 NLRB No. 34
for employment" but if the applicant has never worked for Respondent, it
may reject him "for any reason allowed under law "
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and constructing a high voltage power transmission
line for the Bonneville Power Administration,
Project Manager Chivrell hired Johnson because
he was not aware of the company policy
regarding Johnson. When Chivrell learned
about Johnson's status with Respondent, he
checked with Sargent, Respondent's president, who
told Chivrell to discharge him. Johnson was released
that afternoon. The following morning, July 15, all of
the 200 employees engaged on the project struck in
protest, including the Charging Parties.
It is clear, and the General Counsel does not argue
otherwise, that the July 15 strike was unprotected
concerted activity in violation of section 1.4 of the
contract. After Chivrell initially agreed with Sar-
gent's order to discharge Honeycutt and Ingraham
for engaging in the wildcat strike, Chivrell decided to
avoid the possibility of prolonging it by retaining
them. And, on Monday, July 19, after discussing the
situation with the Union, Respondent permitted all
of the employees who had struck to return to work.
Later that day, a notice was distributed by Sargent
stating that "should reoccurrence of this action take
place in the future" all employees who had partici-
pated in the strike would be subject to immediate
dismissal.
Honeycutt, Ingraham, and the other members of
their eight-man light assembly crew returned to work
on July 19 and, when Crew Foreman Moody was
discharged for drinking on the job on July 20,
Ingraham was made acting foreman. As more fully
described in the attached Decision, later that
afternoon Chivrell, Foreman Hinerman, and Union
Steward Jacobs met to discuss the status of the crew.
Hinerman and Chivrell told Jacobs that the crew was
being laid off for lack of work and the unavailability
of a qualified journeyman to serve as foreman. The
crewmembers were informed the next morning, July
21, that they were being laid off; their termination
slips stated that they were eligible for rehire.
Later that day, however, Sargent sent identical
letters to the Union stating that as provided in the
contract Honeycutt and Ingraham were not eligible
for future employment with Respondent because
they had induced employees to engage in a strike.
Since then, all members of the crew save the
Charging Parties have been rehired by Respondent.
The Charging Parties did not file grievances over
their layoff and Respondent's subsequent refusal to
rehire them.
As noted, the Administrative Law Judge, in
3 Contrary to our dissenting colleagues , we perceive no meaningful
distinction between a contract clause prohibiting discharge except for "just
cause ," as was the case in National Radio, and the instant agreement's
prohibition of discriminatory or arbitrary treatment of employees by
Respondent Unlike our dissenting colleagues , it is our view that a grievance
filed pursuant to this provision would enable an arbitration board fully to
agreement with the General Counsel's contentions,
found that Respondent had condoned the participa-
tion of its employees, including the Charging Parties,
in the prior unprotected concerted strike activity and
then, in violation of Section 8(a)(1), had discriminat-
ed against Honeycutt and Ingraham, and indirectly
the entire crew, by laying off the crew and refusing to
rehire Honeycutt and Ingraham because they had
engaged in such conduct. The Administrative Law
Judge found Respondent's assigned reasons for the
layoff to be pretexts. Respondent, while denying the
commission of any unfair labor practices, asserts that
the matter should be resolved by the parties'
contractual grievance settlement mechanism. We
agree.
It is clear that under the collective-bargaining
agreement Honeycutt, Ingraham, and the crewmem-
bers who were laid off with the Charging Parties may
grieve their alleged arbitrary and discriminatory
treatment by Respondent. Here, as in National
Radio, where the contract prohibited discipline for
other than "just cause," there exists a contractual
means for the quick and fair vindication of employee
rights.3 And, in Howard Electric Company, 166
NLRB 338, where the Board dismissed the complaint
and deferred to an award of the Council of Industrial
Relations for the Electrical Construction Industry of
the United States and Canada, the same body which
could issue a final and binding decision herein if the
dispute is not otherwise resolved, the Board stated
that the procedure and award of the Council met the
arbitration criteria of Spielberg Manufacturing Com-
pany, 112 NLRB 1080.
In sum, therefore, for the policy and other reasons
more fully explicated in National Radio, under the
circumstances herein, including the parties' stable
and productive bargaining relationship and the
absence of a history of union animus, we decline at
this time to exercise our remedial powers in this case
and so decline as well to render any decision now
upon the merits.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, the National Labor Relations Board
hereby orders that the complaint herein be, and it
hereby is, dismissed; provided, however that:
The Board shall retain jurisdiction of this proceed-
ing for the purpose of entertaining an appropriate
consider these employees' claims of injustice. This Board has no monopoly
on wisdom in such matters, nor is the doctrine of condonation a new-found
invention of this Board Claims by employees that they were unfairly
treated by reason of some past conduct which may be shown to have long
since been forgiven or "condoned" by their employers are surely as
cognizable in an arbitration forum as they are before this Board
TYEE CONSTRUCTION CO.
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision , either been resolved by amicable settle-
ment in the grievance procedure or submitted
promptly to arbitration , or (b) the grievance or
arbitration procedures have not been fair and regular
or have reached a result which is repugnant to the
Act.
MEMBERS FANNING AND JENKINS , dissenting:
We predicted in our dissent in Joseph T. Ryerson &
Sons, Inc., 199 NLRB No. 44, that the majority's
deferral policy would lead to the dilution of the Act,
and that employees would be left with only such
protection as they were accorded under the collec-
tive-bargaining agreement-a protection dependent
upon the relative strengths of the employer and the
union , and upon the union 's ability and willingness
to process grievances . This case confirms our fears
and again illustrates the extent to which the majority
is willing , by its policy of deferring to private
tribunals , to abrogate the rights of individual
employees under the Act we administer.
The majority justifies their deferral here by
analogizing the legal and factual situation to that in
National Radio Company, Inc., supra, where they
relied on a "just cause" provision in the contract
under which employees could be disciplined as the
foundation for deferring the alleged discrimination
of an employee under Section 8(a)(3) to the arbitral
process. In our dissent in National Radio we set forth
in explicit detail our objections to the course the
majority was following in extending its Collyer policy
to a situation in which the only issue was whether an
employee was discharged for union activity in
violation of Section 8(a)(3). Not only are the same
considerations applicable here , but, even if we were
inclined to accept the majority views in National
Radio, we find that the instant case is an inappropri-
ate vehicle for the application of those views . For the
reasons discussed below, we are concerned that the
majority had enlarged the National Radio doctrine,
and has done so with insufficient evidentiary and
legal rationale and further eroded the protective
rights of employees under the statute we administer.
The complaint alleged* that on July 21, 1971,
Respondent laid off the eight members of a working
crew, including the Charging Parties, Honeycutt and
Ingraham , to retaliate discriminatorily against them
because of their participation in concerted work
stoppages which took place during the previous
week , or because of the Charging Parties' participa-
tion in a concerted work stoppage in 1968, or both
and thereafter refused to rehire the Charging Parties
for the same reasons. As pointed out in the majority
decision , there is no dispute that the work stoppages
in question were in violation of the contract and
309
constituted unprotected concerted activity . It is also
clear that at that time Respondent could have
discharged the employees involved for engaging in
such unprotected concerted activities . However, it is
undisputed that the Respondent condoned their
activities by agreeing to the return to work of all of
the employees without reservation despite knowledge
of their participation in such unprotected activities
and the prior participation of Ingraham and Honey-
cutt in similar work stoppages in 1968 . The Respon-
dent was willing to forgive and forget as long as it
could get the work moving again . Respondent's
notice of July 19 to all the employees involved in the
work stoppage after their return to work which
specifically stated that it would not in the future
permit reoccurrence of such work stoppages and that
in the future employees involved would be dis-
charged further emphasized that the prior conduct
had been condoned.
From the above it is clear that the prior unprotect-
ed conduct of the members of the work crew,
including Ingraham and Honeycutt , had been
unconditionally condoned, and the laying off of the
crew to accomplish the discharge of Honeycutt and
Ingraham on July 21 interfered with , restrained, and
coerced the employees in violation of Section 8(a)(1).
It is also equally clear that the refusal to rehire the
Charging Parties thereafter because of their partici-
pation in prior work stoppages was an independent
violation of Section 8(a)(1) of the Act regardless of
the reason for their layoff on July 21.
The doctrine of condonation is neither a new nor
novel one and has been uniformly accepted by the
Board and courts for many years. Its purpose is to.
insure stability in employment relations by prevent-
ing an employer from misleadingly agreeing to return
its employees to work and then taking disciplinary
action for something apparently forgiven . We believe
it is a doctrine which should not be lightly discarded.
Unlike , National Radio, the central issue here
is not alleged discrimination of an employee
for union activities in violation of Section
8(a)(3), but , as described above , condonation
of unprotected concerted activities and sub-
sequent discrimination . This involves alleged vio-
lations of statutory , not contractual , rights. The
legal doctrine of condonation in our opinion is
clearly not within the confines of the provisions of
the contract . The majority opinion in fact admits as
much since they point out they are not relying, as
they did in National Radio, on deferring to a
grievance-arbitration procedure where the contract
prohibited discipline for other than "just cause," a
provision absent here , but upon a broad catchall
provision in section 1.4 of the contract which permits
the Union to grieve for employees "with respect to
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such matters as the alleged discriminatory or
arbitrary treatment of an individual employee arising
out of his employment." They interpret this provision
to cover employees' statutory as well as contractual
rights. In doing so the majority has finally admitted,
as we predicted they would, that there need not be a
contract clause covering the conduct involved in
order to defer to arbitration, but merely a collective-
bargaining contract with grievance procedures with
language related to our Act.
The result is that the union and employer can
escape the Board's and courts' application of the Act
to their violations of it by simply including in their
contract a provision, as here, which contains lan-
guage similar to that of the Act and attaching an
arbitration clause. Statutory rights are then reduced
to contract rights and will disappear unless the
arbitration tribunal departing from statutory stand-
ards inadvertently makes an explicit disclosure in its
decision that it had done so. Failure of the arbitra-
tion tribunal to determine the statutory rights is not
sufficient to warrant this Board's vindication of
them, for the majority will presume they have been
determined, and properly, under a "just cause" or
similar clause. Terminal Transport Company, Inc., 185
NLRB 672. Thus, the majority, as we have previously
observed, undermines the Act's protection of the
individual and makes the public interest in proper
and uniform application of the Act a plaything of
private treaty and interpretation.4
National Radio and Ryerson, supra, were predicated
on the finding that the interests of the union and the
employee therein were in "substantial harmony."
Here no grievances were filed by the Union, nor is
there any indication that any will be. The unfair
labor practices were filed and pursued by the
individuals in question. The Union took no part in
the unfair labor practice proceeding and filed no
brief. The two individuals involved must depend
upon the Union's hiring hall for job referrals, and
they are not in a position to take an independent or
forthright stand to force the Union to pursue their
interests. There is no reasonable grounds under the
facts of this case for assuming that the interests of the
two individuals involved would be adequately
represented, or indeed presented, in the complicated
4 Since the contract must be construed as consistent with the Act if at all
possible, it will be a short step for the majority to dispense with the clause
which contains some or all of the statutory language It will then follow that
the mere presence of an arbitration clause in a contract will bar individual
employees from access to the Board for protection of their statutory rights.
5 Nor, in Member Jenkins' view , can the majority properly rely on the
existence of a quick and fair vindication of employee rights under the
contract or a stable and productive bargaining relationship as support for
their position The private tribunals involved here are quite unlike the single
arbitrator who was empowered to make a final decision in National Radio
and other Collyer deferrals. They consist of a Labor- Management
Committee consisting of three representatives each of the Union and the
tribunals, which involve the union and the contrac-
tor, the industry and the International. The Board
has previously noted that it would be repugnant to
the purposes of the Act to defer to arbitration under
such circumstances. Kansas Meat Packers, a Division
of Aristo Foods, Inc., 198 NLRB No. 2. We feel the
Board should also refuse to do so here.5
Moreover, in view of the work stoppages which go
back to 1968, and the strained relations between the
Employer and the employees, as shown by facts fully
described in the Administrative Law Judge's Deci-
sion, reliance on bargaining history would appear to
be a thin reed to support the majority's position.
Similarly, to rely on the absence of a history of union
animus would appear to be equally makeweight,
since the very conduct alleged which the majority
refuses to adjudicate upon its merits clearly involves
animus.
Finally, we note that the majority Decision does
not deal with the Administrative Law Judge's finding
that by laying off certain of the members of the crew
on July 21, 1971, in order to effectuate the discharge
of Ingraham and Honeycutt, because of their
previously condoned unprotected concerted activity
Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of
the Act. Their Decision deals only with Honeycutt
and Ingraham. The Administrative Law, Judge
recommended in his Order that Respondent make
the six employees involved whole for any loss of pay
they may have suffered as the result of such
discrimination. The majority would apparently leave
this issue unresolved and dangling. Here, in our
opinion, the majority is acting contrary to their
previously stated views that they will not defer part
of a dispute to the arbitral process when they are
required to determine a closely related and integrat-
ed part. Sheet Metal Workers, International Associa-
tion, Local Union 17, AFL-CIO (George Koch Sons,
Inc.), 199 NLRB No. 26. The majority's view that
these other dischargees can also seek arbitration
seems beside the mark. The violation alleged is that
they were fired in order to cloak the firing of
Ingraham and Honeycutt. Such violation has no
discernible connection with any contract interpreta-
contractor, with a final appeal to the Council on Industrial Relations for the
Electrical Construction Industry of the United States and Canada,
consisting of six members of the National Electrical Contractors Associa-
tion and six members of the international Union, whose decisions must be
unanimous Significantly , neither body provides for neutrals In Member
Jenkins' view such tribunals are conductive to compromise , horsetrading,
and the possible subversion of individual employee interests, and of
statutory rights as well , by the vote of only one of the six-member appeal
council The Collyer principle contemplated that the labor contract must
bind the parties to the dispute decision of a "forum of third parties or a
neutral arbitrator" and thus this would not appear to be an acceptable form
See Tulsa - Whisenhunt Funeral Homes, Inc, 195 NLRB No. 20.
TYEE CONSTRUCTION CO.
tion, and the majority points to none . We see nothing
an arbitrator can determine under the contract as to
this group of dischargees.
For the above reasons we would decide the
allegations in the complaint on their merits. The
Administrative Law Judge in his Decision, in our
opinion, has properly analyzed the evidence and
applied applicable Board and court precedents, and
we would adopt it.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Seattle, Washington, on March 7
and 8, 1972, pursuant to due notice. The complaint, which
was issued on February 2, 1972, on a charge filed July 27,
1971,1 alleged in substance as amended that Respondent
engaged in unfair labor practices proscribed by Section
8(a)(1) of the Act by (1) laying off or discharging on July
21 eight named employees because of their participation in
a concerted refusal to work, and (2) failing and refusing
thereafter to employ the Charging Parties because of their
participation in said concerted work stoppage and a prior
concerted work stoppage. Respondent's answer denied the
alleged unfair labor practices and affirmatively alleged that
the Board should defer to the grievance and arbitration
procedures contained in the contract between Respondent
and Local No. 77, International Brotherhood of Electrical
Workers, AFL-CIO (hereinafter called the Union). Res-
pondent's unopposed motion to correct the official
transcript of proceedings is hereby granted.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Washington corporation engaged in the
construction of electric power lines in the States of
Washington, Oregon, and Alaska, with principal offices in
Bellevue , Washington; Portland, Oregon; and Anchorage,
Alaska. During the past year, it performed services valued
in excess of $50,000 for customers located outside the State
of Washington and had a gross business volume in excess
of $500,000. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
I All dates hereinafter refer to 1971 unless otherwise indicated
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
311
At all times relevant herein, Respondent and the Union
were parties to a collective-bargaining contract which
contained a no-strike clause. During 1971, Respondent was
engaged in the conversion and construction of a high
voltage power transmission line known as the Chief
Joseph-Monroe project. On July 14, Respondent dis-
charged Charles J. Johnson, one of its employees at that
project. On July 15 and 16, approximately 200 of
Respondent's employees engaged in a strike or concerted
refusal to work to protest said discharge. On July 19,
pursuant to agreement with Respondent, all of said
employees returned to work unconditionally. On July 21,
Respondent laid off one of its assembly crews, consisting
of eight of said employees, including the Charging Parties,
allegedly because of their participation in the aforesaid
work stoppage and the Charging Parties' participation in a
prior concerted work stoppage. On the same day, Respon-
dent notified the Union, pursuant to their contractual
hiring hall arrangement, that the Charging Parties were no
longer eligible for employment with Respondent because
they had induced the employees to engage in the aforesaid
work stoppage.
The issues as framed by the pleadings are, after
Respondent on July 19 had unconditionally permitted all
of the employees to return to work: (1) laying off or
discharging the eight members of Respondent's assembly
crew, including the Charging Parties, because of their
participation in the work stoppage on July 15 and 16
and/or the Charging Parties' participation in a concerted
work stoppage in 1968, in violation of Section 8(a)(1) of the
Act; and (2) on and after July 21, refusing to permit the
Union to refer the Charging Parties for employment with
Respondent through the Union's exclusive hiring hall
because of their participation in the July 15 and 16 work
stoppage and/or another concerted work stoppage in 1968
involving Respondent, in violation of Section 8(a)(1) of the
Act.
B. Chronology of Events
During 1971 Respondent was engaged in the conversion
and construction of a high voltage power transmission line,
known as the Chief Joseph-Monroe project, running from
the Chief Joseph Dam on the Columbia River in
Washington, west across Stevens Pass in the Cascade
Mountains, to Monroe, Washington. The project consisted
of the conversion of the existing power line to 500,000 volt
capacity, involving the removal of the old transmission
lines, the conversion of some and the replacement of other
transmission towers, and the necessary rewiring, all
pursuant to a contract with the Bonneville Power Adminis-
tration which required completion before the winter of
1971-72. At all times relevant herein, Respondent, as a
member of the Northwest Line Constructors Chapter,
National Electrical Contractors Association, was party to a
collective-bargaining agreement with the Union and other
IBEW locals containing , inter alia, an exclusive hiring hall
arrangement , a no-strike clause, ,a grievance and "arbitra-
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion" procedure and a clause permitting the employer to
reject any applicant for employment "for any reason
allowed under law."
Respondent's Chief Joseph-Monroe project included
several "shops," including the Skykomish and Merritt
shops, where construction offices and equipment were
maintained and the employees reported to work. Most of
Respondent's employees worked in crews, which did
assembly, erection, wiring, and disassembly, respectively.
Respondent obtained all of its employees for such crews
from the Union's hiring hall Each of these crews had a
working foreman, who was required under the contract to
be a journeyman lineman referred by the Union. During
the relevant period, Respondent's officials with whom we
are here concerned were E. B. Sargent , president of the
corporation; William J. Chivrell, project manager of the
Chief Joseph-Monroe project; and Jack Hinerman, general
foreman or superintendent of the Skykomish shop, under
Chivrell. Chivrell did all of the hiring pursuant to requests
for men received from the several general foremen
underneath him.
On July 13, Chivrell, apparently by mistake, hired
Charles J. Johnson, a journeyman lineman , pursuant to
referral from the Union. In 1968, Johnson, together with
the Charging Parties, Honeycutt and Ingraham, and other
employees, engaged in a wildcat strike involving Respon-
dent and other members of the National Electrical
Contractors Association. As a result, Respondent thereaft-
er refused to employ Johnson. On July 14, Chivrell, having
been informed by Hinerman of Respondent's policy
concerning Johnson, contacted Sargent and was instructed
by him to fire Johnson, although Chivrell advised Sargent
that this might precipitate a strike . Chivrell, during the
course of discussions with Hinerman and Stanley Jacobs,
the Union's shop steward employed by Respondent as a
journeyman lineman , concerning the requested discharge
of Johnson, learned that Honeycutt and Ingraham had
participated with Johnson in the wildcat strike in 1968.
Chivrell fired Johnson that afternoon . The following
morning all of the project's employees, approximately 200,
including Honeycutt and Ingraham, engaged in a concert-
ed work stoppage by refusing at starting time to work
unless Respondent reinstated Johnson.
Hinerman and Chivrell both talked with the striking
employees at Skykomish, but they refused to return to
work unless Johnson was reinstated. Chivrell appeared to
be considering this request favorably, but then stated he
was going to call Sargent to find out who was running the
job. He did so. Sargent said that he had ascertained that
Honeycutt and Ingraham were employed on the project,
had participated in the 1968 work stoppage, and that he
wanted them fired also because of their current activities
and those in 1968. Chivrell agreed to fire Ingraham and
Honeycutt and had their termination slips and checks
prepared. However, after second thought, he realized this
might prolong the work stoppage which he was anxious to
avoid because of Respondent's contractual deadline. As a
result, Chivrell warned Sargent that, if Chivrell fired
Honeycutt and Ingraham as Sargent desired, it might
prolong the strike indefinitely. Sargent finally agreed that
Chivrell was running the job and Sargent would leave the
decision to him, and Chivrell decided not to fire Honeycutt
and Ingraham. Although Chivrell contended that Sargent
gave him exactly the same choice with respect to Johnson's
prior discharge, nevertheless Chivrell fired Johnson under
substantially the same circumstances, i.e., lack of personal
knowledge concerning Johnson's involvement in 1968 and
a substantial certainty that the discharge would result in a
work stoppage or strike.
The strike continued through July 15 and 16, Thursday
and Friday. On July 16, at a meeting at the union hall the
employees decided to return to work on Monday, July 19,
leaving the disposition of Johnson's discharge to other
channels. Chivrell, who was anxious to have the men
return to work, was informed by Jacobs that they had
decided to return to work unconditionally on Monday.
Despite Respondent's knowledge that the strike was in
violation of the contract, Chivrell conceded that there were
no restrictions whatsoever placed on anybody returning to
work, that every employee was permitted to return to work
without reservation and that, as far as he was concerned, it
was all over and done with. Chivrell also admitted that,
with full knowledge of Ingraham's and Honeycutt's
participation in the work stoppage on July 15 and 16 and
the work stoppage in 1968, he permitted them to return to
work without any reservation. On the morning of July 19,
all of the employees, including Honeycutt, Ingraham, and
the other six members of their crew returned to work
without any conditions or objections. Later that day,
Respondent posted and gave all of the employees a notice
signed by Sargent that all employees who had participated
in the unauthorized work stoppage in violation of the
contract would be subject to immediate discharge "should
reoccurrence of this action take place in the future."
Honeycutt and Ingraham were members of an eight-man
assembly crew engaged in the assembly of light steel towers
which did not require the assistance of a crane, as
distinguished from the assembly of towers consisting of
heavy steel parts which required lifting by a large crane.
The foreman of their crew was Charles Moody. Moody, as
required by the contract, was a journeyman lineman. The
other six members of the crew were Frank J. Milos, Earl
Appleton, Larry C. Wearin, William L. Harper, Leroy
Chase, and Asa Pronovost. None of the crew members
were classified as journeyman linemen , all being classified
as assemblymen, ground men, or equipment operators,
classifications receiving a uniform but lower pay scale than
that of journeyman linemen . Under the Union's referral
system, assemblymen, ground men, and equipment opera-
tors could be referred alternatively but not as journeyman
linemen . Journeyman linemen could, of course, accept
referral to lower paid classifications. Certain requisite
skills, which were possessed by both Ingraham and
Honeycutt, were required for referral to operate certain
types of equipment.
About midday July 20, Respondent fired Moody for
drinking on the job and Hinerman named Ingraham as
acting foreman for the balance of the day. The crew was
engaged in the assembly of a light tower in the Skykomish
area. Jacobs informed Hinerman that under the contract
the crew could not operate without a foreman , who had to
be a journeyman lineman . Hinerman then informed Jacobs
TYEE CONSTRUCTION CO. 313
that the crew would have to be laid off because there was
no journeyman lineman available to act as foreman.
Jacobs immediately pointed out that this was incorrect and
that there were a number of eligible journeyman linemen,
whom he named, on the project available to act as
foremen . In addition, the record establishes that there were
three eligible journeymen on the Union 's out of work list
whom Respondent could have requested. Chivrell conced-
ed that he did not consider calling the hall. I credit Jacobs
and find that, contrary to the testimony of Chivrell and
Hinerman, there were journeyman linemen available. After
Jacobs had pointed out that there were journeyman
linemen available , Chivrell changed Respondent 's reason
and contended that the crew should be laid off because
there was not enough work for it. According to Chivrell
and Hinerman , whom I do not credit unless otherwise
corroborated, they had decided to terminate or lay off
Moody's crew for lack of work sometime before Moody's
discharge. As will be discussed more fully hereinafter, the
record not only fails to establish such lack of work or need
but establishes the contrary.
Chivrell admitted that, as he did in the case of Johnson's
discharge and all other matters involving personnel, he
discussed the proposed layoff thoroughly with Jacobs.
Jacobs then argued that there was plenty of work available,
because he knew that it was Respondent's busy season and
peak employment period, that there was a constant
turnover of personnel, and that Respondent would need
additional employees throughout the summer to complete
its project on schedule. He pointed out that the members of
the crew could be transferred temporarily to other
positions until vacancies, which occurred repeatedly, arose
in other crews on the project . During the ensuing
discussion Chivrell conceded that he could use four named
members of the crew, not including Ingraham and
Honeycutt, on other jobs on the project. Jacobs replied
that all of the members of that crew were good workers,
there was ample work on the project to warrant keeping all
of them, and that he saw no reason for selecting only the
four named by Chivrell. Chivrell finally conceded that he
could find places for all of the members of the crew except
Honeycutt,and Ingraham. Jacobs countered by pointing
out that both Hinerman and Chivrell had conceded that
Honeycutt and Ingraham were good workers. Chivrell then
told Jacobs that Respondent could not afford to keep
Ingraham and Honeycutt because they were "troublemak-
ers and loud mouths." Jacobs warned Chivrell and
Hinerman that if they selected only Ingraham and
Honeycutt to be laid off Respondent would probably have
another work stoppage at the project and rather than do
that it would be better to lay off the entire crew. After
considerable further discussion, Chivrell decided to lay off
the entire crew. Inasmuch as it was then the afternoon of
July 20, Chivrell at Jacobs' request decided to lay off the
crew the following morning, which would entitle them to 4
hours' showup time.
The following morning when the crew reported, Hiner-
man informed them that they were being laid off because
their foreman had been fired and Respondent was unable
to secure another journeyman lineman to act as foreman.
At this point, Richard Rogers, a journeyman lineman,
reported for work, having been referred by the Union. One
of the members of the crew informed Rogers that they
were being terminated because they had no journeyman
lineman to act as foreman . Rogers thereupon volunteered
to accept the position to prevent their layoff. Hinerman
refused , stating that it was too late and that there was no
work for the crew in any event. Under the contract,
Respondent had the right to select its crew foremen.
Hinerman testified that he did not want Rogers because he
had previously worked on the project eight or nine times
and could not be depended upon to remain for any period
of time. However, Hinerman and Chivrell both also
contended that one of the reasons the crew was laid off was
because it had only 1- 1/2 days' work left.
Respondent gave termination slips to the entire crew,
including Ingraham and Honeycutt. The slips stated that
each workman's ability was good and that each of them
was eligible for rehire. However, the same day, Sargent
sent two identical letters to the Union advising it that,
pursuant to the contract, Ingraham and Honeycutt were
not eligible for future employment with Respondent
because they had "induced employees to engage in work
stoppage." The letters referred to the provision of the
contract authorizing the employer to reject any applicant
for employment for any reason allowed under law. Chivrell
claimed that his decision to lay off the crew, including
Ingraham and Honeycutt, was in no respect dictated or
requested by Sargent, and Sargent claimed that the letters
he wrote to the Union the same day were written without
the knowledge of Chivrell. Their testimony concerning
their actions that day is inconsistent and contradictory.
Sargent testified that he had not been in touch with
Chivrell and was not aware of the layoff of the crew, which
included Ingraham and Honeycutt, until his secretary
presented him with the termination slips the same day,
whereupon he immediately wrote the Union rejecting
Ingraham and Honeycutt for future employment. It is not
clear how the termination slips reached Sargent's office so
quickly. According to him, Chivrell acted on his own and
never advised Sargent of the layoff action. On the contrary,
Chivrell testified that Sargent knew about the layoff
because Chivrell was dealing directly with him on July 21
and that Sargent had told Chivrell that day that Sargent
had sent the letters to the Union rejecting Honeycutt and
Ingraham for future employment. Chivrell did not explain
why their termination slips stated they were eligible for
rehire . At various times after July 21, all of the members of
the Moody crew except Ingraham and Honeycutt were
referred back to the project by the Union and reemployed
by Respondent.
Respondent presented shifting and varied defenses for
terminating the Moody crew on July 21, all of which I find
to be without merit. The record establishes that Respon-
dent's originally stated reason was the lack of a foreman
after Moody was fired. When it became apparent that this
reason was without merit, because of Jacobs' naming
several journeyman linemen on the project who could be
appointed as foreman, Rogers' volunteering on the
morning of July 21 to accept the position of foreman, and
the fact that there were three journeyman linemen
available on the Union's out-of-work list, Respondent
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed its reason to lack of need for the crew because of
lack of work. In support of this contention, Chivrell and
Hinerman testified that there was no crane available for
the Moody crew and none could be obtained, so it could
not be transferred to heavy assembly work. The Moody
crew was engaged in light assembly which did not require
the use of a crane. Other assembly crews, which had and
used a heavy crane, could perform both light and heavy
assembly work. Respondent also contended that because
of the poor condition of the access roads to the sites where
the transmission towers were erected, it was unable to haul
steel into such sites and there were only one and a half light
steel towers left to be assembled by the Moody crew.
Considerable evidence was offered to establish the lack of
adequate access roads, but the record fails to indicate why
this had any greater effect upon the Moody crew than
upon the other crews using a heavy crane, which would be
more difficult to get to the site of construction.
The record establishes that there was a great deal of
work available for the Moody crew, that it was the peak of
Respondent's busy season, that there was a shortage of
qualified applicants, and that Respondent's regular prac-
tice was to not lay off unneeded crews but to transfer
members to other crews for the time being until vacancies
occurred, which happened regularly. Most significantly,
during the conversation on the afternoon of July 20
between Chivrell and Jacobs concerning the layoff,
Chivrell conceded that he could transfer all of the members
of the Moody crew to other jobs on the project except
Honeycutt and Ingraham, whom he could not keep
because they were troublemakers and loud mouths. The
record establishes that there were jobs available at that
time which could have been filled by the Moody crew.
Thus, on July 20, the very day that Chivrell decided to lay
off the Moody crew allegedly for lack of work, he ordered
a new complete gin pole crew from the Union to report at
the Skykomish shop the following day. Gin pole crews did
assembly without a crane. This crew included seven
positions which could have been filled by members of the
Moody crew. The record also establishes that Respondent
had decided to create this new gin pole crew substantially
before July 20 and that members of the Moody crew had
been asked by their foreman if they were interested in
working on such crew and had replied affirmatively, yet
Chivrell contended that he had no work available and did
not consider transferring the Moody crew to such gin pole
crew. In addition, according to Chivrell and Hinerman,
they had decided a week or more before July 20 to lay off
the Moody crew because of lack of need, which was totally
inconsistent with Chivrell ordering a new group of men on
July 20 from the union hall for the gin pole crew.
In addition, the prior day Chivrell had ordered one
assembly man as a replacement in a crew at the Merritt
shop, who did not report until the following Friday, July
23. The record further establishes that Respondent made
calls to the Union for assembly hands every week after
July 21 and that, between July 26 and the end of August,
Respondent had a total of 16 new openings which the
members of the Moody crew were qualified to fill. Thus the
record establishes, and I find, that there was work available
for the Moody crew and that there were journeyman
linemen available for appointment as foreman of that crew.
Moreover, Chivrell, during his conversation with Jacobs on
July 20, in substance admitted that Chivrell's only reason
for laying off the Moody crew was to get rid of Honeycutt
and Ingraham. Although Chivrell contended that he alone
made the decision to terminate the crew, it was undisputed
that Sargent had previously instructed him to discharge
Honeycutt and Ingraham and after their layoff took
immediate steps to make certain that Ingraham and
Honeycutt would never again be referred to Respondent
for employment.
C. Concluding Findings
1. The discriminatory layoff
The complaint alleged that on July 21 Respondent laid
off the eight members of the Moody crew, including the
Charging Parties, to discriminatorily retaliate against them
because of their participation in the concerted work
stoppage on July 15 and 16 and/or because of the
Charging Parties' participation in a concerted work
stoppage in 1968. The General Counsel, of course, relies
heavily upon the Board's well-established doctrine of
condonation. There is no dispute that the concerted work
stoppage engaged in by Respondent's employees on July
15 and 16 constituted an unprotected concerted activity,
i.e., a strike in violation of the contract. At that time,
Respondent could have discharged such employees for
engaging in such unprotected concerted activities. Howev-
er, the record establishes beyond dispute that Respondent
condoned their activities by unconditionally agreeing to
the return to work of all of the employees, admitting that it
did so without any reservations despite knowledge of their
participation in such unprotected activities and the prior
participation of Ingraham and Honeycutt in the work
stoppage in 1968. Chivrell, as he stated, was willing to
forgive and forget as long as he could get the men back to
work and get on with the project. Respondent's notice of
July 19 to all of the employees involved in the work
stoppage after their return to work constitutes further
corroboration of Respondent's condonation thereof, since
Respondent specifically stated that should reoccurrence of
such action take place in the future all employees who
participated in the prior work stoppage would be subject to
immediate discharge. The above findings clearly establish
condonation by Respondent, and it could not thereafter
discharge or otherwise discriminate against such employees
for having engaged in such condoned activities without
violating the Act. Under such circumstances, the doctrine
of condonation has been the law for many years. The
Board has described it as follows:
... however, contrary to the Trial Examiner, we find
that even if Sherrod's participation in the threat to quit
was unprotected, the Respondent's subsequent conduct
constituted condonation of the unprotected aspect of
Sherrod's otherwise protected activity.
A court of appeals has recently stated that the
Board's doctrine of condonation "prohibits an employ-
er from misleadingly agreeing to return its employees to
work and then taking disciplinary action for something
TYEE CONSTRUCTION CO. 315
apparently forgiven." [Packers Hide Association, Inc. v.
N.L.R B., 360 F.2d 59 (C.A. 8).]2
We are not here concerned with a situation where the
employer reserves the right to discipline the instigators of,
as distinguished from the participants in, wildcat work
stoppages.3 The record contains no evidence that Respon-
dent reserved such right but, in fact, establishes the
contrary. Moreover, there is no substantial evidence in the
record that Ingraham and Honeycutt were in fact the
instigators of the strike. Thus the record establishes, and I
find, that Respondent in fact unconditionally and without
reservation condoned the participation of its employees,
including Ingraham and Honeycutt, in their prior unpro-
tected concerted activities. Respondent thereby waived
whatever rights it had with respect to such employees'
conduct. It is well settled that subsequent discrimination
for engaging in such condoned activities constitutes a
violation of Section 8(a)(1) of the Act.4 Respondent's only
argument with respect to the Board's established doctrine
of condonation as approved by the courts is that it is
legally defective. Such contention should, of course, be
made elsewhere.
A preponderance of the reliable, probative, and substan-
tial evidence, hereinabove discussed, and in the entire
record convinces me, and I find, that Respondent's alleged
reasons for discharging or laying off the Moody crew were
pretextual, and that Respondent's real reason for laying off
that crew was to accomplish the discharge of Honeycutt
and Ingraham because of their participation, which
Respondent had condoned, in the prior concerted work
stoppages, thereby interfering with, restraining, and coerc-
ing said employees in violation of Section 8(a)(1) of the
Act. It is, of course, well settled that discharging a group of
employees, innocent bystanders so to speak, in order to
accomplish or camouflage the discharge of certain employ-
ees therein in violation of the Act, also constitutes a
violation of Section 8(a)(1) of the Act.
2. The discriminatory refusal to hire
The complaint alleged that on and after July 21
Respondent failed and refused to permit the Union to refer
Ingraham and Honeycutt for employment with Respon-
dent through the Union's exclusive hiring hall because of
their participation in the July 15 and 16 work stoppage
and/or in a prior work stoppage during 1968, an independ-
ent violation of Section 8(a)(1) of the Act, regardless of the
reason for their layoff on July 21. The facts are undisputed.
Pursuant to the contractual provision that the employer
had the right to reject any applicant for employment "for
any reason allowed under law," on July 21 Respondent
notified the Union that Respondent would no longer
accept referrals of Ingraham and Honeycutt for employ-
ment because they had induced employees to engage in
work stoppages in violation of the contract. As found
above, this conduct had been unconditionally condoned by
2 American River Constructors, 163 NLRB 551. See also, A & S Asphalt
Corporation, 196 NLRB No 38 (1972) and Jones & McKnight, Inc. v
NLRB,445F2d97(CA 7, 1971)
3 Complete Auto Transit, Inc, 134 NLRB 652 and Alabama Marble
Company, 83 NLRB 1047
4 Fn 2, supra
5 A & S Asphalt Corporation, 196 NLRB No. 38, and American River
Constructors, 163 NLRB 551
Respondent. Even if the July 21 layoff were not discrimi-
natory or in violation of the Act, it is well settled that a
refusal to hire employees for engaging in previously
condoned unprotected concerted activities is as much a
violation of Section 8(a)(1) as a discharge.5 I conclude and
find that Respondent, by refusing to rehire Ingraham and
Honeycutt after their layoff on July 21, because of their
previously condoned unprotected concerted activities,
interfered with, restrained, and coerced said employees in
violation of Section 8(a)(1) of the Act.
3. Deferral to arbitration
Respondent contends that the Board, under the princi-
ples enunciated in Collyer,6 should dismiss the complaint
and defer to arbitration because the contract contains
grievance and appellate procedures, including employee
grievances concerning alleged discriminatory or arbitrary
treatment. Assuming arguendo that the contract does
contain a provision for arbitrationj it seems clear and I
find that this is not the type of proceeding in which the
Board should or would defer to arbitration inasmuch as it
does not involve any issues of contract interpretation.
Collyer involved the unilateral granting of wage increases
allegedly in violation of the contract and allegedly
constituting a refusal to bargain. Its import is that the
Board will defer to arbitration in unfair labor practice
cases involving the interpretation of the contract, where the
expertise of a skilled arbitrator may be assumed to be equal
to or greater than that of the Board. The issue herein As one
primarily involving condonation and subsequent discrimi-
nation, clearly an area not within the confines of the
contract and one beyond the scope of the normal expertise
of an arbitrator, who might be totally unfamiliar with the
applicable legal doctrine. The Board has specifically noted
that it has not yet resolved whether and in what
circumstances the principles relied upon in Collyer may be
applicable to alleged violations of Section 8(a)(3),8 patently
comparable to the type of discrimination with which we
are here concerned. I am satisfied and find that this
proceeding, involving alleged violations of employees'
statutory, as distinguished from contractual, rights, and the
application of the legal doctrine of condonation, is not an
appropriate type of case to be deferred to arbitration.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. By laying off the members of the Moody crew, in
order to effectuate the discharge of Ingraham and
Honeycutt, because of their previously condoned unpro-
tected concerted activity, Respondent interfered with,
restrained, and coerced its employees in the exercise of the
6 Collyer Insulated Wire, 192 NLRB No 150
7 Grievance appeals are made to a Labor-Management Committee
consisting of three representatives each of the Union and the contractor,
with a final appeal to the Council on Industrial Relations for the Electrical
Construction Industry of the United States and Canada, consisting of six
members of the National Electrical Contractors Association and six
members of the International Union, whose decisions must be unanimous
8 Tulsa- Whisenhunt Funeral Homes, Inc, 195 NLRB No 20
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
3. By refusing to reemploy Ingraham and Honeycutt
because of their previously condoned unprotected concert-
ed activities, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act in violation of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the Order recommended below, which I find necessary
to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Having
found that Respondent reemployed Milos, Appleton,
Weann, Harper, Chase, and Pronovost in their former or
substantially equivalent positions, they will not be included
in the customary reinstatement order.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 9
ORDER
Tyee Construction Co., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discriminating
against employees because they engaged in previously
condoned unprotected concerted activities, or laying off,
discharging, or otherwise discriminating against employ-
ees, in order to effectuate the discharge of other employees
because they engaged in previously condoned, unprotect-
ed, concerted activities.
(b) Refusing to hire former employees because they
engaged in previously condoned, unprotected, concerted
activities.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Harold J. Honeycutt and James F. Ingraham
immediate and full reinstatement to their formerjobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their semority or other
rights and privileges.
(b) Make James F. Ingraham, Harold J. Honeycutt,
Frank J. Milos, Earl Appleton, Larry C. Wearin, William
L. Harper, Leroy Chase, and Asa Pronovost each whole for
any loss of pay he may have suffered by payment to each
of a sum of money equal to that which he would normally
have earned from, in the case of Ingraham and Honeycutt,
July 21, 1971, the date of their layoff, to the date of the
above-required offer of reinstatement by Respondent, and
in the case of Milos, Appleton, Wearin, Harper, Chase, and
Pronovost, from July 21, 1971, the date of their layoff, to
the respective dates of their reemployment by Respondent,
less the net earnings of each during said periods (Crosset
Lumber Company, 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established
by the Board in F W. Woolworth Company, 90 NLRB 289,
together with interest thereon at the rate of 6 percent per
annum (Isis Plumbing & Heating Co., 138 NLRB 716).
(c) Immediately notify Ingraham and Honeycutt, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) Preserve and upon request make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to determine the amount of backpay due under this Order.
(e) Notify, in writing, Local No. 77, International
Brotherhood of Electrical Workers, AFL-CIO, Ingraham
and Honeycutt that Respondent revokes its letters of July
21, 1971, to said Union rejecting the future referrals of
Ingraham and Honeycutt, and that Respondent has no
objection to the future referral of Ingraham and Honeycutt
by said Union to Respondent for employment.
(f) Post at its business offices, its project offices and
headquarters, and all places where notices to employees
are customarily posted copies of the attached notice
marked Appendix.l° Copies of said notice, on forms
provided by the Regional Director for Region 19, after
being duly signed by Respondent's representative shall be
posted by Respondent immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are-not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of receipt of this
Decision what steps Respondent has taken to comply
herewith. i i
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
10 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 read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 19, in writing, within 20 days
from the date of this Order what steps Respondent has taken to comply
herewith "
TYEE CONSTRUCTION CO. 317
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off, discharge, or otherwise
discriminate against our employees because they
engaged in unprotected concerted activities , including
work stoppages, when such unprotected activities have
been condoned by us.
WE WILL NOT lay off, discharge, or otherwise
discriminate against our employees , in order to effectu-
ate the layoff or discharge of other employees because
they engaged in unprotected concerted activities,
including work stoppages, when such unprotected
activities have been condoned by us.
WE WILL NOT refuse to hire former employees
because they engaged in unprotected concerted activi-
ties, including work stoppages, when such unprotected
activities have been condoned by us.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of any of the rights guaranteed them by the National
Labor Relations Act.
WE WILL offer James F. Ingraham and Harold J.
Honeycutt immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
each, plus Frank J. Milos, Earl Appleton, Larry C.
Weann, William L. Harper, Leroy Chase, and Asa
Pronovost , whole for any loss of pay which he may
have suffered as a result of our discrimination against
him.
WE WILL notify, in writing, Local No. 77, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
Ingraham and Honeycutt that we revoke our letters of
July 21, 1971, to said Union rejecting the future
referrals of Ingraham and Honeycutt , and that we have
no objection to the future referral of Honeycutt and
' Ingraham by the Union to us for employment.
Dated By
TYEE CONSTRUCTION CO.
(Employer)
(Representative) (Title)
We will notify immediately Harold J. Honeycutt and
James F. Ingraham, if presently serving in the Armed
Forces of the United States of their right to full
reinstatement, upon application after discharge from the
Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 10th Floor, Republic
Building, 1511 Third Avenue, Seattle, Washington 98101,
Telephone 206-442-5692.