Crown Wrecking Co., Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1976

222 N.L.R.B. 958 (N.L.R.B. 1976)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crown Wrecking Co., Inc. and Thomas E. Hussey , Sr. APPENDIX
Case 6-CA-8164
February 19, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On November 19, 1975, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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, as modified herein?
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, as modified
below, and hereby orders that the Respondent,
Crown Wrecking Co., Inc., Pittsburgh, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(d):
"(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
' We correct an inadvertent error in the Administrative Law Judge's De-
cision in sec . III, C, first paragraph , which refers to employee Downey's
conversation on November 24, 1975 , with employee Hussey The November
24 conversation to which Downey testified was between Downey and Frank
Crown
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that in the circumstances
of this case the Respondent be ordered to cease and desist from the unfair
labor practices found, and from in any like or related manner infringing
upon the rights guaranteed in Section 7 of the Act. However, the attached
notice shall be substituted for the notice recommended by the Administra-
tive Law Judge.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, having found
that we violated the National Labor Relations Act,
ordered us to post this notice.
WE WILL NOT lay off, discharge, or otherwise
discipline you because you voice or present to us
directly a grievance under the collective-bar-
gaining contract, or because you otherwise en-
gage in concerted activities under Section 7 of
the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with your right to engage in concerted
or union activities, or to refrain therefrom.
Because the Board found that we unlawfully
terminated employees Thomas Hussey and Dar-
rold Downey on November 24, 1974, because
they engaged in concerted activities under Sec-
tion 7 of the National Labor Relations Act, WE
WILL offer them immediate and full reinstate-
ment 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 WE WILL give them
backpay with interest from the time of their ter-
mination.
CROWN WRECKING CO., INC.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard at Pittsburgh, Pennsylvania, on July 17, 18, and 30,
1975. The charge and amended charge were filed, re-
spectively, on March 13 and May 19, 1975, by Thomas
Hussey, an individual. The complaint, which issued on
May 27, 1975, alleges that Crown Wrecking Co., Inc. (here-
in the Company or Respondent), violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
The gravamen of the complaint is General Counsel's con-
tention that the Company terminated the employment of
Hussey and Darrold Downey because they complained
that they were not being paid in accordance with the rate
of pay provided for in the collective-bargaining agreement
between the Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 341 (herein the Union), and thereby violat-
ed Section 8(a)(1) and (3). The Company' s answer, as
222 NLRB No. 157
CROWN WRECKING CO. 959
amended at the hearing, denies the commission of the al-
leged unfair labor practices, and contends that Hussey and
Downey were terminated because there is no need for their
services; they are unqualified to perform the services for
which they were hired, and their trucks broke down. The
principal issues are whether Hussey and Downey were ter-
minated for the reasons alleged by General Counsel, and, if
so, whether such conduct was violative of Section 8(a)(1)
and (3) of the Act. All parties were afforded full opportuni-
ty to participate, to present relevant evidence, to argue or-
ally, and to file briefs.
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the brief submitted
by Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, whose principal office and facility is lo-
cated in Pittsburgh, Pennsylvania, is a Pennsylvania corpo-
ration engaged in business as a demolition and excavation
contractor. In the course and conduct of its business, the
Company annually received in excess of $50,000 for serv-
ices performed for firms which are directly engaged in in-
terstate commerce. I find, as the Company admits, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES: THE TERMINATION
OF HUSSEY AND DOWNEY
A. The Alleged Complaints about the Wage Rate,- and the
Termination of Hussey and Downey
The Company's employees are represented in three sepa-
rate bargaining units, respectively, by the Teamsters, Oper-
ating Engineers, and Laborers Unions. The Company's
dump truck drivers, who operate either tandem or tractor-
trailer trucks, are covered by the terms of a collective-bar-
gaining contract between the Company and Joint Council
of Teamsters No. 40, effective' from June 1, 1973, to May
31, 1976, and are represented by the Union, an affiliated
local of the Joint Council. As of November 22, 1974,1 the
last day worked by Hussey and Downey, the Company had
five dump truck drivers on its payroll: Thomas "Red" Hus-
sey and Darrold "Arkey" Downey, the two alleged dis-
criminatees; Arthur "Art Yan" Yanuzzi; George "Porky"
Adams; and Joseph Yurechko, brother of Frank Crown,
the Company's president. The Teamsters contract provided
that from June 1, 1974, to June 1, 1975, employees operat-
ing dump trucks of the kind utilized by the Company were
i All dates herein are in 1974 unless otherwise indicated
to be paid $6.74 per hour. In fact, the Company paid its
drivers considerably less than that figure. On federally
funded jobs, the Company paid its drivers the "predeter-
mined" rate of $6.05 per hour, only because it was required
to do so by the Federal government; on all other jobs, the
Company paid its drivers $5.50 per hour. Frank Crown
testified that he could not afford to pay the contract rate
and remain competitive, that other unionized firms paid
only $5.50 per hour, and, indeed, that he had difficulty in
competing for jobs even at the $5.50 figure.
Although the Union, as collective-bargaining representa-
tive, was responsible for the day-to-day administration of
its contract, including the investigation and presentation of
grievances, the evidence indicates that the Union's officials
generally managed to make themselves unavailable to the
members. Thomas Hussey, who had been employed by the
Company as a truckdriver since 1968, testified that he sel-
dom saw the Union's business agent, and could not re-
member his name. Although the contract empowered the
Union to appoint job stewards and alternates, inter alia, for
grievance handling purposes, there is no indication that the
Union ever appointed a steward for the Company's driv-
ers?
Hussey married during the period that he was employed
by the Company, and about 2-1/2 years prior to his termi-
nation, he felt the pressure of his family's needs sufficiently
to seek additional "moonlighting" employment. Hussey
took on a job as a part-time policeman in his hometown of
North Versailles Township, and occasionally worked as a
private guard. Hussey testified that in mid-November 1974,
after a conversation with an unidentified member of the
Union who was not an employee of the Company, he re-
quested and obtained from the union hall a copy of the
collective-bargaining contract. Hussey then spoke to Dar-
rold Downey, an old friend who had been hired by Frank
Crown as a driver on September 23. Downey testified that,
when he was hired, Crown told him that he would be mak-
ing $220 per week and would get "the rate" on government
jobs, which "rate" Downey assumed to mean union scale.
According to the two drivers, Hussey showed the contract
to Downey, they agreed that they should be making the
contract rate, and they decided to talk to Frank Crown's
son Robert, .the Company's vice president. Hussey and
Downey further testified that they spoke to driver Art Yan,
who agreed to back them up if they decided to pursue the
matter, and-Downey testified that he spoke to driver Porky
Adams, who said that he was keeping track of his hours
and was "going to get that money sooner or later." Al-
though Yan and Adams appeared as witnesses for the
Company, neither testified concerning these alleged con-
2 The Union's inaccessibility is corroborated by certain circumstances rel-
ative to the hearing of this case At the outset of the hearing, on July 17,
Company's counsel informed me that he wished to present the Union's
business agent as a witness , but that the agent was at a conference or con-
vention in Los Angeles The next day, both counsel informed me that they
had been unable to contact him I continued the hearing to July 30, in part
to enable the Company to produce the agent as witness However , on that
date, Company' s counsel informed me that he was still unable to locate the
agent If these efforts of the Company and General Counsel were unsuccess-
ful in locating the Union 's business agent, it could hardly be expected that
the employees would have any easier time in making their grievances known
to him
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versations . I credit the testimony of Hussey and Downey
concerning their conversations with Yan and Adams.
According to Hussey and Downey, they decided to go
directly to the Company because they doubted that the
Union would back them up in the matter . Downey testified
that he was told by other drivers that it would do no good
to complain to the Union . Hussey testified that, in his view,
,they [the Union] don't back you," that -when union drivers
discussed their rate, they would "hush it up," and that he
did not file a grievance about the- wage rate because he
feared for his job. In view of the Union's inaccessibility to
its membership and apparent lack of interest in policing its
contract , the two employees' lack of confidence in the
Union ; whether justified or not, was at least understanda-
ble. I find that Hussey and -Downey acted in good faith in
deciding to approach the Company about the wage rate. I
do not credit their testimony that they did not know until
mid-November that they were not being paid the contract
rate . Downey's -testimony that Frank Crown told him that
he would get "the rate" on government projects ,- indicates
at the least that Downey understood that his pay of $220
per week on,other projects was less than union scale. The
two employees ' testimony further indicates that other driv-
ers, e.g.; Adams, , knew that they were being paid less than
contract rate . Hussey had been working for the Company
for more than 6 years, and I find it unlikely that he re-
mained unaware of that fact for so long. However, in view
of their uncontradicted testimony concerning their conver-
sations with Yan and Adams, and the admission by Robert
Crown (hereinafter discussed), that Downey questioned
him about the rate in mid-November, I find that Hussey
and Downey decided at that time to take up the matter
with the Company. I further find that Art Yan agreed to
back them up and Porky Adams indicated that he was in
sympathy with them; i.e., that all of the employees in the
unit, with the exception of Frank Crown's brother, partici-
pated in or expressly or impliedly approved the decision to
take such action.
Hussey and Downey testified that they approached Rob-
ert Crown on Friday, November 15, which was a payday.
Their testimony was contradictory. Hussey testified that
they asked Crown why they were not getting "the rate,"
and that he answered that they would have to talk to his
father. Downey testified that he alone approached Robert
Crown, who told him that the Company could not stay in
business if it had to pay the rate, adding that "you've got to
be happy with what you're making" and that truckdrivers
weren't really worth the rate. Robert Crown testified that
Downey, but not Hussey, asked him about the rate, he told
him to talk to his father , and he reported this conversation
to his father. I credit Crown. In addition to noting the
employees ' contradictory testimony , I find it unlikely that
Crown would have taken an adamant position towards one
employee , while on the same day referring another employ-
ee to Crown's father.
Hussey testified that, about 6:30 p.m. on November 15,
Frank Crown called him at his home and asked why he
was questioning the rate. According to Hussey, he an-
swered that he thought they should be getting the rate,
whereupon Crown replied that "You and Arkie have your
heads together and you're discussing the rate with people."
Crown allegedly added that "Two hundred and twenty dol-
lars a week is enough for a truckdriver and if you guys
don't like it , I'll park those trucks and rent trucks." Crown,
in his testimony , categorically denied that this alleged con-
versation ever took place. Hussey and Downey worked the
following week, through Friday , November 22. Downey
testified that as it had snowed on Sunday , November 24, he
called Frank Crown at his home to find out if there would.
be work the next day. Downey testified that Crown told
him that "there was no work for the trucks," that he should
"sign up," i.e., for unemployment compensation , and, that
he was going to tell Hussey that he was also laid off. Frank
Crown did not testify concerning this conversation . Hussey
testified that late that evening Frank Crown called him and
said that "there is no work and you might as well sign up
now." Crown , in his testimony , initially agreed with
Hussey's version of their conversation, but later changed
his testimony , saying that he told Hussey that his truck was
broken down and there was no work . Neither Hussey nor
Downey has been recalled to work for the Company. For
reasons which will be discussed herein , I have credited the
testimony of Hussey and Downey concerning their conver-
sations with Frank Crown.
B. The Company's Asserted Reasons for Terminating
Hussey and Downey
The Company' s answer to the complaint , which was
sworn and attested to by Frank Crown, asserts that Hussey
and Downey were terminated because there was no need
for their services , and because they were unqualified to
perform the services for which they were hired. Frank
Crown testified that Hussey and Downey were dismissed
because of incompetence and lack of work, and because
their trucks broke down. At the close of the hearing, the
Company amended its answer to assert the breakdown of
the trucks as an additional ground for termination . Hussey
and Downey were never told that they were being termi-
nated for incompetence , rather they were simply told that
they were being laid off for lack of work, and (if Crown's
revised version of his conversation with Hussey were cred-
ited) that a breakdown of Hussey's truck was also a factor.
Thus, the employees could reasonably have believed at the
time that they were being temporarily laid off . In fact, the
testimony adduced by the Company, including that of
Frank Crown, related only marginally to the employees'
competence , rather, that testimony concerned alleged
slacking or "dogging it" on the job. The Company's shift-
ing explanations for their dismissal suggests that one or
more of the asserted grounds may have been rationaliza-
tions. Frank Crown's recital of the reasons for termination
had an air of contrivance about it; however, as this may
have been due to nervousness , I am not inclined to attach
controlling significance to Crown's demeanor on the wit-
ness stand. Rather, on review of the evidence , including the
testimony of Company witnesses, I find that two of the
grounds asserted by Crown were without basis in fact, and
that, in the context of this case , the third ground was de-
monstrably pretextural.
Frank Crown testified that the tandem trucks operated
by Hussey and Downey both broke down on November
CROWN WRECKING CO. 961
22, their last day of work, and therefore he had no trucks
for them to operate. Since November 1, the Company has
had nine dump trucks which it leases from an affiliate,
Crown Leasing Company. Five were tandems and four
were tractor-trailers. One of the tandems was a Mack truck
which had not been licensed or inspected for the road, and
was used primarily to haul rocks on jobsites. As indicated,
the Company had five drivers as of November 22; howev-
er, two of them, Yan and Adams, normally operated either
tractor or tandem trucks. Yurechko, Hussey, and Downey
normally drove only tandems. Thus, assuming that two
trucks were broken down, leaving two tandem trucks and
three tandem drivers, there was still a truck available for
either Hussey or Downey. In fact, no truck broke down on
November 22. Downey's regular truck, No. 35, had broken
down about a week earlier, and Hussey's truck, No. 34,
was operative as of November 22. Downey testified that his
truck had not broken down on his last day of work. Both
Frank and Robert Crown testified that Downey had been
using a substitute truck during his last week. It is apparent
from this fact that his regular truck had become inopera-
tive prior to that time; indeed, at one point in Frank
Crown's contradictory testimony on this matter, he con-
ceded as much. Frank Crown's testimony that truck No. 34
broke down on Hussey's last day of work was contradicted
by Robert Crown and by Rexford Haney, the Company's
mechanic and maintenance man. Robert Crown testified
that Hussey's truck was road-tested on a Saturday after
Hussey was laid off, found defective, and brought into the
Company's repair shop. Haney also testified that Hussey's
truck was brought into his shop on a weekend. Stranger
still is Haney's testimony that Downey's truck was not re-
paired until April or May 1975, and that, as of July 17,
Hussey's truck had not yet been repaired, and that Haney
had no idea when it would be repaired. I find it inconceiva-
ble that Crown would permit such equipment to remain
idle for so long a time without repairing or replacing it,
simply because his mechanic hadn't gotten around to the
work , unless Crown was carrying out the threat attributed
to him by Hussey to "park those trucks and rent trucks."
Frank and Robert Crown testified that there was no
work for Hussey and Downey because the Spanish clubjob
in Donora, on which they had been working, was complet-
ed. According to Robert Crown, dirt hauling from the pro-
ject was completed about the time that their trucks broke
down, and only some grading and finishing work re-
mained. The job itself was completed on November 28;
however, its completion did not presage any curtailment of
the Company's hauling operations. The Company has per-
formed many excavation jobs of varying duration over the
years. One barometer of the Company's workload is the
volume of its truck rentals. In addition to utilizing Crown's
own trucks, the Company leases tandem dump trucks and
drivers on a daily basis from one Edward Slepski. Viewing
the rental of one truck and driver for 1 day as a single
rental , the Company rented 31 trucks from Slepski during
December 1974. On November 23, the Company rented 2
trucks;'no other trucks were rented in November and only
12 were rented in October. The December figure was rela-
tively high; in only 5 of the preceding 15 months did the
Company rent as many or more trucks from Slepski. Addi-
tionally, the Company hired a truckdriver on January 8,
1975, and another on June 3, 1975, both of whom were still
employed at the time of the hearing. In an attempt to bol-
ster the Company's position, Frank Crown testified that
two other employees, crane operator Pete Cherepko and
oiler William Cernicky, were also laid off because the "Do-
nora project .. " was finished. Crown testified that Cher-
epko and Cernicky were laid off on March 6, 1975. Howev-
er, the Spanish club job was completed on November 28,
and the Company's other project in Donora, known as the
Donora Mill job, was still in progress as of July 1975. In
view of the time interval between the completion of the
Spanish Club job and the termination of Cherepko and
Cernicky, it is clear that the two events were unrelated. The
work of the crane operators, who load the trucks, and the
work of the drivers, who haul away the excavated material,
are interdependent. If the completion of the Spanish club
job warranted the layoff of two of the Company's five driv-
ers, then presumably it would have warranted the layoff of
at least one operating engineer . However, the testimony of
Frank Crown indicates that no such layoff took place? In
sum, I do not credit the Company's explanation that Hus-
sey and Downey were terminated in part because of the
completion of the Spanish club job.
There remains the Company's contention that Hussey
and Downey were terminated in part because they were
"dogging it," i.e., not doing their job or slacking down on
thejob. As indicated, about 2-1/2 years before his termina-
tion Hussey began supplementing his income by doing
part-time police and private guard work on nights and
weekends. It is apparent from the testimony of his fellow
employees that Hussey's work with the Company suffered
as a result of this additional activity, and that it had been
suffering during this whole period of time. Hussey admit-
ted that he left work as much as one-half hour early in
order to get to his police job. The testimony of other em-
ployees indicates that Hussey was not transporting as
many loads as the other drivers and that this fact led to
resentment among his fellow employees, who complained
to Frank Crown, either directly to him or through Joe Yu-
rechko.
Hussey_ testified that neither Crown ever complained
about his work. Frank Crown testified that the men had
been complaining about Hussey's work habits ever since he
became a policeman, and that for about 2 years prior to his
termination he had repeatedly warned Hussey that, if he
didn't shape up, he (Crown) would have to let him go.
Crown's latter testimony was inferentially contradicted by
7 Robert Crown testified that six other employees were laid off at the
same time as Hussey and Downey , without indicating the reason or reasons,
and that a ciane operator was laid off at the same time because he was
"dogging it " This testimony was uncorroborated by Frank ' Crown, by Com-
pany records , or otherwise Frank Crown testified that Cherepko and Cer-
nicky were,the only employees laid off in 1975 Frank Crown did not testify
as to whether any employees other than Hussey and Downey wire laid off
during the period from November 22 through December 31, 1974 If there
were, this would presumably have'been a fact of sufficient importance for
the Company to bring out In his testimony In view of this conspicuous lack
of corroboration , I do not credit the testimony of Robert Crown I find that
Cherepko was the only operating engineer laid off since November 22, his
layoff was unrelated to the completion of the Spanish club fob, and no
employees were laid off by reason of the completion of that job
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Crown. The younger Crown testified that Hussey
was very slow, that the other employees complained about
him, and that he wanted to fire him, but that "my dad liked
him and he kept him." Frank Crown admitted that he sym-
pathized with Hussey because he had a family to support.
Significantly , Robert Crown testified that " there 's a lot of
guys I would fire , but [my dad] keeps them ," adding that
other employees "dogged it" but "we need them and we
keep them, we have to put up with them , what can you do."
What did concern Frank Crown, as indicated by his testi-
mony, was the wage rate. Crown acutely felt the competi-
tion from nonunion contractors who paid lower wage rates.
He was perfectly willing to put up with marginal workers,
so long as they accepted the wage rate which he was willing
to pay. Moreover , I find it improbable that an employer
would repeatedly warn an employee to improve his work
habits or be fired, and then fail to carry out that threat
when the employee 's work failed to improve within a short
period of time Such failure would simply lead the employ-
ee to believe that the employer 's threats were meaningless,
and thereby make it difficult for the employer to maintain
control over his employees ' work. Therefore, I do not cred-
it Frank Crown' s testimony that he warned Hussey that he
would be terminated if he didn ' t improve , nor do I credit
his testimony that Hussey was terminated for incompe-
tence.
Frank Crown failed to explicate Downey's alleged "in-
competence ." Robert Crown testified that Downey took
too many coffeebreaks and that this affected his work, but
later testified that Hussey was the only truckdriver who
"dogged it ." Downey testified that Robert Crown com-
plained that he was taking too many breaks, but that he
denied the accusation , and that in fact it was not true. High
lift operator Harry Sigafoos testified that in "the middle of
summer," when he was working with Hussey and Downey,
they were taking too many breaks. However, Downey did
not begin working for the Company until September 23.
Joe Yurechko, the only other employee to testify concern-
ing Downey 's work habits , testified that Downey "some-
times" dogged it , however, Robert Crown testified that
employees who sometimes , rather than "consistently"
failed to do their work were usually kept on. Crown testi-
fied that he complained to his father about Downey, but
Frank Crown did not corroborate this testimony . As indi-
cated by Robert Crown 's testimony, he frequently com-
plained to his father about employee work habits, and rec-
ommended that employees be discharged , but his advice
was usually disregarded . Moreover , Frank Crown's alleged
policy towards Hussey was inconsistent with his abrupt ter-
mination of Downey . If Crown retained for 2 to 3 years a
driver who constantly dogged it, why would he precipitate-
ly dismiss , without warning or independent investigation,
another employee who only sometimes did so? Neverthe-
less, Crown paired the terminations of the two men. I find
that Downey , like other employees , sometimes "dogged it,"
but that this factor did not enter into Crown's decision to
terminate him. Rather , the only factor which would have
led him to abruptly terminate the two men, simultaneously
and without advance notice, was his discovery that they
had their "heads together."
C. Concluding Findings
I find that Frank Crown terminated Hussey and Dow-
ney on November 24 because they were discussing the
wage rate with their fellow employees and because they
complained to the Company that they were not receiving
the contract wage rate . I credit the testimony of Hussey
concerning his telephone conversations with Crown on No-
vember 15 and 24, and that of Downey concerning his
conversation with Hussey on the latter date . Crown's testi-
mony concerning his conversation with Hussey on Novem-
ber 24 was contradictory, and his alleged reference to
Hussey's truck having broken down was patently false. I
find it probable that Crown threatened to park his trucks
and rent trucks , because that is precisely what he did. Al-
though Downey complained to Robert Crown about the
wage rate, Frank Crown chose to talk to his longtime em-
ployee about the matter . It is apparent from this fact that
Crown had learned , as he told Downey, that the two men
had their heads together and were talking to other employ-
ees. Crown's precipitate and simultaneous termination of
the two men is inexplicable unless considered in light of
this fact. Crown was willing to put up with marginal em-
ployees, but he saw the wage rate as a matter which affect-
ed the very existence of his business.
Under Board law, the Company's termination of Hussey
and Downey was violative of Section 8(a)(1) and (3) of the
Act. Cray-Burke Company, 208 NLRB 708, 711-713 (1974);
J.J Cook Construction Company, Inc, 203 NLRB 41, 46
(1973); The Singer Company, Climate Control Division, 198
NLRB 870 (1972). The terminations were violative of Sec-
tion 8 (a)(1) because , in the most literal sense, Hussey and
Downey were engaged in concerted activity for mutual aid
and protection , having with the expressed or implied sup-
port of their fellow employees agreed upon a course of
action in protesting their wage rate . Their invocation of a
collective -bargaining agreement further constituted con-
certed activity within the meaning of Section 7 of the Act.
Therefore, by terminating the employees because they en-
gaged in concerted activities , the Company violated Sec-
tion 8(a)(1). The terminations were violative of Section
8(a)(3) because , by terminating employees for having in-
voked what they reasonably and in good faith believed to
be their rights under their collective-bargaining contract,
the Company thereby discouraged membership in the
Union. Membership in a union does not consist solely or
necessarily of acquiescence in the policies of the Union's
officials. If an employer, by his actions , leads his employ-
ees to believe that they cannot invoke their asserted rights
under a contract without being subjected to discharge or
the threat of discharge or other reprisal , then such actions
will have a predictable tendency to undermine support for
the employees ' Union. Therefore, it is immaterial that Hus-
sey and Downey bypassed the Union, or whether they were
correct in their interpretation of the contract , so long as
their position was reasonably taken in good faith. Cray-
Burke, supra; J. J Cook, supra; Singer Co, supra In view of
Frank Crown 's admission that he was not paying the con-
tract rate, that position , whether right or wrong, had a rea-
sonable basis in fact; and, as I have found , was taken in
good faith.
CROWN WRECKING CO. 963
As I am bound to follow Board law unless and until such
law is reversed by the Supreme Court or overruled by the
Board itself, these concluding findings could well end at
this point . However , as this case arises within the geo-
graphic venue of the Third Circuit Court of Appeals, I am
constrained to take into consideration certain decisions of
that court which indicate an aspect of disagreement with
the Board 's interpretation of the law in this area. In
N L.R B v. Northern Metal Company, 440 F.2d 881 (C.A. 3,
1971), the court held that the actions of a probationary
employee in complaining to his Union and to his employer
that he was entitled to holiday pay under their collective-
bargaining contract did not constitute concerted activity
within the meaning of Section 7 of the Act; and, therefore,
that his discharge for such actions did not violate Section
8(a)(1). The court noted in this regard, its disagreement
with the Board and with the view expressed by the Second
Circuit Court of Appeals in N.L.R B. v. Interboro Contrac-
tors, Inc., 388 F.2d 495, 500 (1967), that "activities involv-
ing attempts to enforce the provisions of a collective-bar-
gaining agreement may be deemed to be for concerted
purposes even in the absence of . . . interest [on the part
of] fellow employees." The Third Circuit cited its earlier
decision in Mushroom Transportation Company, Inc v.
N.L.R.B., 330 F.2d 683 (1964), and a Seventh Circuit deci-
sion in Indiana Gear Works, a Division of the Buehler Corpo-
ration v. N.L.R.B., 371 F.2d 273, 276 (1967), as authority
for the proposition that "in order to prove concerted activi-
ty under Section 7, it is necessary to demonstrate at least
that the activity was for the purpose of inducing or prepar-
ing for group action to correct a grievance or a complaint."
In Mushroom, the Court found that the activity involved
generalized "griping" by an employee who was a known
"troublemaker," and that no question of group action en-
tered into his conversations with other employees. Indiana
Gear involved the discharge of an employee who had post-
ed cartoons which were "pointedly aimed and directed at
[the firm 's president], holding him up to contemptuous ridi-
cule, and . . . were insulting, sarcastic and malicious " (371
F.2d at 275). In Northern Metal Co., the court did not con-
sider whether the discharge was violative of Section
8(a)(3); however, the court's rationale would seem to sug-
gest that it would not have found such a violation on the
facts of that case.
Significantly, Northern Metal, Mushroom, and Indiana
Gear, unlike the present case , each involved the complaints
of a single employee . In Northern Metal, the court ex-
pressed its unwillingness to "create a legal fiction, con-
structive concerted activity, in an effort to support a judi-
cial conception of a sound interpretation of the Act." (440
F.2d at 884). In the present case , at least two employees
were engaged in de facto concerted activity. It is also signif-
icant that, in all three decided cases, the employees were
airing complaints which were of a personal nature , or were
not shared by their fellow employees, and that the com-
plaints were of questionable merit and possibly made in
bad faith. Thus, in N.L.R.B. v. Ben Pekin Company, 452
F.2d 205 (C.A. 7, 1971), a case somewhat similar to the
present one , the court distinguished its earlier decision in
Indiana Gear on the ground that the employee had there
"publicly vented a personal grievance." In Pekin, the em-
ployer discharged an employee because he had questioned
the employer and the Union's vice president about the
amount of a pay increase , asking "is there a pay-off here?"
The court, citing Interboro Contractors, found that the
employee's actions, including his question about a "pay-
off," constituted protected activity for concerted purposes
and, therefore, that his discharge violated Section 8(a)(1) of
the Act. Finally, in the present case, Hussey and Downey
were not merely engaged in idle "griping," but were look-
ing toward a redress of their grievances. The fact that their
actions were nipped in the bud by their precipitate termi-
nations does not remove those actions from the category of
concerted activity. See, Hugh H. Wilson Corporation v.
N.L.R.B., 414 F.2d 1345 (C.A. 3, 1969), cert. denied 397
U.S. 935 (1970) Here, apparent indifference or lack of sup-
port from the union leadership led the employees to assert
their grievances in the only way which seemed feasible to
them; i.e., initially at least, by going directly to their em-
ployer. I find it unlikely that the Third Circuit Court of
Appeals would extend the rationale of Northern Metal to
deny the protection of the Act to employees engaged in
such activities.
IV. THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company discriminatorily termi-
nated Thomas Hussey and Darrold Downey, it will be rec-
ommended that the Company be ordered to offer each of
them immediate and full reinstatement to his former job
or, if it no longer exists, to a substantially equivalent posi-
tion , without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
that they may have suffered from the time of their dis-
charge to the date of the Company 's offer of reinstatement.
The backpay for the said employees shall be computed in
accordance with the formula approved in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest computed in
the manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721 (1962). It will also be
recommended that the Company be required to preserve
and make available to the Board , or its agents, on request,
payroll and other records to facilitate the computation of
backpay due.
In view of the Company's established collective -bargain-
ing relationships, I am not persuaded from the unique facts
of this case that the Company maintains an attitude of
opposition to the purposes of the Act with respect to the
protection of employee rights in general . Therefore , I shall
recommend that the Company be ordered to cease and
desist from the unfair labor practices found , and from in
any like or related manner infringing upon the rights guar-
anteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce and the Union
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a labor organization, all within the meaning of the Act.
2. By terminating Thomas Hussey and Darrold Downey
for engaging in protected concerted activities for mutual
aid and protection, and thereby discouraging membership
in the Union, the Company has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
Respondent Crown Wrecking Co., Inc., Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise disciplining an
employee who voices or presents directly to Respondent a
grievance under the collective-bargaining contract or
otherwise engages in concerted activities under Section 7 of
the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
4 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
rights guaranteed in Section 7 of the Act, or discouraging
membership in Teamsters Local 341 or any other labor
organization.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Thomas Hussey and Darrold Downey immedi-
ate and full reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights, and
make them whole for losses they suffered by reason of the
discrimination against them as set forth in the section of
this Decision entitled "The Remedy."
(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.
(c) Post at its main office and facility in Pittsburgh,
Pennsylvania, copies of the attached notice marked "Ap-
pendix." S Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
5 in the event 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 "