Mcever Engineering, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 921 (N.L.R.B. 1985)

MCEVER ENGINEERING
McEver Engineering , Inc. and Thomas Murray..
Case 16-CA-10750
28 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 April 1984 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed a brief in sup-
port of the decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
As found by the judge, the employees struck in
protest over being required to work in what they
perceived, to be unsafe weather conditions. It was a
one-time event, and the mere fact that the employ-
ees' withholding of services was of short duration
or ended when the weather conditions improved
does not render it a "partial" strike.2 Thus, in our
view our dissenting colleague mischaracterizes the
employees' concerted work stoppage in this case as
an unprotected partial strike.
Further, the facts do not support our dissenting
colleague's finding that. such unsafe conditions
were "a normal concomitant of the job." The Re-
spondent's project superintendent, Bill Brickell, tes-
tified that he fully expected that there would have
been a "rain-out" had the project manager not or-
dered otherwise due to pressure from the customer.
Additionally, while the employees testified that
they had worked in the rain in the past, they fur-
ther testified that they had never worked in such a
hard rain and had never worked as high up on the
tank in the rain. Thus, the dangers of working that
day as perceived by the employees and the Re-
spondent's project superintendent were not inher-
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
. In adopting the judge 's' finding that the Respondent unlawfully dis-
charged seven of its employees because they engaged in a concerted
work stoppage in protest over unsafe working conditions , Member
Hunter finds it unnecessary to rely on Tamara Foods, 258 NLRB 1207
(1981)
In the absence of exceptions we adopt the judge's finding that the post-
discharge misconduct of two of those employees does not warrant denial
of their reinstatement rights under Clear Pine Mouldings, 268 NLRB 1044
(1984)
2 See, e g, E B. Malone Corp, 273 NLRB 78 (1984), Richard Schubert
Associates, 222 NLRB 867 (1979), Union Boiler Co, 213 NLRB 818
(1974)
921
ent in the job, and the risks attendant to working in
those conditions were not assumed by the employ-
ees when they accepted employment with Re-
spondent. Accordingly, the cases cited in the dis-
sent, Daniel Construction Co., 264 -NLRB 770
(1982), and Daniel Construction Co., International,
267 NLRB 1213 (1983), are, in our view, distin-
guishable.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, McEver En-
gineering, Inc., Cleburne, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I would not adopt
the administrative law judge's finding that the Re-
spondent violated Section 8(a)(1) of the Act by dis-
charging seven employees who refused to work 'in
the rain. In my view, the employees were engaged
in an unprotected partial strike and, accordingly,
the Respondent did not violate the Act by dis-
charging them.
The Respondent, an engineering and construc-
tion firm, was retained by the Texas Lime Compa-
ny to perform repair, installation, and maintenance
work at its plant near Cleburne, Texas. The work
consisted of installing new equipment, rebuilding
old equipment, and performing other construction
work on the top and sloping sides of a 65- to 80-
foot-high lime tank. The Respondent's employees
at the plant site were unrepresented.
In the early morning of 12 October 1982 it was
raining intermittently lightly and heavily as the Re-
spondent's employees began arriving at the plant
for work. For approximately the first hour and a
half the employees took shelter from the rain in the
toolhouse and awaited orders from Plant Superin-
tendent Brickell. At approximately 7:30 a.m. Brick-
ell informed the employees that Project Manager
Steger had decided not to call a "rain-out," and or-
dered them to begin work. A number of employees
complained to Brickell about working in the rain
and that it was too dangerous, but all began work.
Several were assigned to work on the top of the
tank, while others were assigned to work on ele-
vated platforms around the sides of the tank or on
nearby conveyor legs.
Twice during the remainder of the morning the
employees- returned to the toolhouse when the rain
became too heavy. The first time occurred at ap-
proximately 9:30 a.m. and lasted until the rain
slackened about 45 minutes later and Brickell or-
275 NLRB No. 128
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dered them to return to work. As they had earlier,
several of the employees • complained generally to
Brickell about having to work in the rain, that they
were getting wet, and that it was too dangerous,
but again all returned to work. The employees
took shelter in the toolhouse for the second time at
approximately 11:45 a.m., remaining there until
their noon lunchbreak. -
When noon arrived seven of the employees
drove to a nearby site across from a park to have
lunch. While- there they discussed the poor work-
ing conditions caused by the rain at the plant that
morning. They decided -not to return-to work as
long as the rain continued.
When the seven employees failed to return to
work after lunch, Superintendent 'Brickell -sent the
company clerk to their lunch§ite to ascertain , the
reason for their absence. When the clerk arrived at
the site, the employees told him they were not
going to return until it stopped raining, that when
it stopped they would return. ,
When the -clerk informed Brickell that the em-
ployees had replied that they "were not ready ' to
come back to work," Brickell instructed the clerk
to prepare termination slips for each of them.
Brickell also later informed Steger of this when
Steger came back from his lunchbreak. Steger at
that-time questioned -the remaining employees who
had returned and' who were working on the top of
the tank if they had any idea 'what the problem
might be with, their coworkers. When all replied
that -they, di& not know, Steger agreed ,with Brick-
ell that the seven-employees should be fired. -
When the rain ceased around 1:30 p.m. the'seven
employees returned to the ' plant= for= work 'as they
had told the clerk' they would. All were immedi-
ately informed that they had been -terminated.
After some heated discussion -and angry confrdnta-
tions with Steger and another Texas Lime official,
the seven employees packed up their tools and left.
The judge found that, insofar` as the seven em-
ployees had refused to" work -because of''adverse
working` conditions, the Respondent ;violat'ed Sec-
tion ` 8(a)(1) of the Act by 'discharging them. The
.judge noted that.the employees were'unrepr'esented
and that several had slipped, and received minor
electrical shocks during the course of the morning
as a result of the wet'and'muddy conditions on top
of • the - -tank. I For - the,! reasons set: forth. below I
would reverse the judge's finding.'-
unquestionably true that employees- have- ait-is
protected right to engage in a concerted- work
stoppage to protest adverse working conditions. It
.isequally_true, however, that this right isa limited
one. As Justice Stewart observed in American Ship
Building Co. v. NLRB:1
[T]here is nothing in the statute which would
imply that the right to strike "carries with it"
the right exclusively to determine the timing
and duration of all work stoppages. The right
to strike as commonly understood is the right
to cease work-nothing more.
The issue, in this case is whether the employees' re-
fusal to return to work until it stopped raining ex-
ceeded those limits. I conclude that it did. -'
The Board has consistently held unprotected so-
called partial strikes where employees elect to con-
tinue working while at the same time refusing to
follow a management directive. Thus, for example,
the Board 'has found lawful the discharge of em-
ployees who, although not engaging in a-total work
stoppage, refused to work overtime,2 to work on
Saturdays,3 or on holidays.4 As the Second Circuit
recently explained in enforcing the Board's order
in one such case:
To permit an employee in such a fashion uni-
laterally to dictate the terms and conditions of
employment would lead to chaos. An employ-
er is entitled to receive from a person who
opts for continued employment the full and
undiluted performance of the duties for which
he is hired and paid. The employee cannot
have it both ways, i.e., continue, to be em-
ployed but insist on working part-time as an
economic' weapon, any more than the employ-
er would be permitted unilaterally to pay an
employee less than the agreed upon wages for
his.services:5 .
In the instant case there is no question that
working in-the rain was a mandatory condition of
employment. The employees were .:ordered, not
asked, to work that day. Nevertheless, seven -of
these employees decided that they were not going
to obey that order, yet expected to be allowed to
continue working once the rain stopped.. Thus,
they sought "to have it both ways,", i.e., to contin-
ue being employed, but insist on working only in
fair weather. Indeed, they in fact, realized-that ob-
jective, effectively imposing their' own terms and
conditions' of employment 'on the Respondent. By
was , raining theyrefusing to,, , work- while it'
r 380 US 300, 310 (1965)
•2 See, ,e.g., Lake Development Co, 259 NLRB 791 (1981), GAIU Loctil
13-B (Western Publishing Co), 252 NLRB 936-( 1980), and cases cited
therein
3 E g , Wolverine Worldwide, Inc, 247 NLRB 921, 924 (1980), Dependa-
ble Lists, Inc, 239 NLRB 1304, 1313 (1979). _
4 Laredo Packing Co, 241 NLRB 184 (1979) ,
5 NLRB v. GAIU Local 13-B, 682 F 2d 304, 308 (2d Cir 1982)
MCEVER ENGINEERING
achieved unilaterally what the Respondent had ear-
lier declined to grant them-a "rain-out."
The employees, of course, - were protesting not
merely undesirable working conditions but what
they claimed to be unsafe conditions. The Board
has twice recently held, however, that a partial
strike is not rendered protected merely because the
object is unsafe conditions when those conditions
are a normal concomitant of the job. Thus, in
Daniel Construction Co.," the Board found lawful
the discharge of an employee who refused to enter
a radioactive pipe at a nuclear power plant. 'And in
Daniel Construction Co., International,7 the Board
found lawful the discharge of two employees who
refused to climb a scaffold. In both cases the Board
specifically found that the dangers feared by the
employees were inherent in the jobs and were well
known , by them when they assumed employment:
Moreover, the Board noted, in neither case had the
employees made any demand on the employer to
take steps by which the jobs could be made safer.
In the instant case, work on the 65- to 80-foot-
high lime tank was also clearly inherently danger-
ous. That was true regardless of the weather condi-
tions as shown by the following credited testimony
of Plant Superintendent Brickell:
They [the working conditions] are bad and
worse. There is no good, working ''conditions,
not one of them. You have either got lime in
your eyes, , you got quick lime • on you, - it is
burning you. If it rains it is slick, it is muddy,
it is messy_ If it is. dry and the wind is blow-
ing, it gets in your nose and in your lungs and
they just-the working conditions were not
good at the lime plant.
According to Brickell all employees were fore-
warned of the poor working conditions at the plant
when they applied for work. Further, several of
the employees who testified at the hearing admitted
that they had worked in the rain before at the
plant-some even volunteering to do.so on at least
one such occasion." The employees also admitted
6 264 NLRB 770 (1982)
7 267 NLRB 1213 (1983)
.8 Contrary to my colleagues, I do not find it significant that the em-
ployees testified that they had never before worked in such a hard rain or
as high up on the tank in the rain - It•is undisputed that the Respondent
permitted the employees to take shelter in the toolhouse whenever the
rain became intolerable and the employees admitted that they' had
worked in the rain at heights of up to 20 feet on previous occasions Ac-
cordingly, I find distinguishable Richard Schubert Associates, 222 NLRB
867'•(1976), and Union Boiler Co, 213 NLRB 818 (1974), cited by my col-
leagues, insofar as there was no showing that the adverse working condi-
tions in those cases were similarly a normal concomitant of the job Fur-
ther, in the only other case cited by my colleagues, E B Malone Corp,
273 NLRB 78 (1984), the issue was whether the work stoppage' was an
intermittent strike, not whether it was a partial strike
923
that they never made any demand that the Re-
spondent provide them with safety equipment, or
that any other- protective measures be taken.
Indeed, although claiming that they had slipped in
the mud and had received minor electrical shocks,
the employees admitted that not one of 'them ever
brought this to the Respondent's attention.
Finally, the mere fact that the employees were
unrepresented does not render their conduct pro-
tected. The Board has never held that partial
strikes are protected if they are engaged in by un-
represented employees. Indeed, in both of the
Daniel Construction cases the employees were also
unrepresented yet, as discussed above, the Board
held their partial work stoppages unprotected and
their discharges lawful.
Accordingly, contrary to my colleagues, I would
find that the Respondent lawfully discharged the
seven employees.9
9 As I would find that the discharge of the employees was lawful, I
find it unnecessary to pass on the judge 's discussion of whether under
Clear Pine Mouldings, 268 NLRB 1044 (1984), the employees' postdis-
charge misconduct would warrant denial of reinstatement
DECISION
STATEMENT OF THE CASE
HAROLD BENARD JR., . Administrative Law Judge. I
heard this case on February 22 and 23, 1983, in Fort
Worth, Texas, pursuant to charges filed. November 1982
and a complaint issued the next month on December 29,
1982, which 'alleged' that the- Respondent discharged
seven employees because they'had engaged in protected
concerted activities, and that the Respondent thereby
violated Section 8(a)(1) of-the Act. .
On the entire'record, including the demeanor of the
witnesses and briefs filed by the parties, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Texas corporation engaged in the en-
gineering and construction business from its location in
Cleburne, Texas, and annually purchases supplies valued
in excess of $50,000, directly from suppliers located out-
side Texas. I find, as admitted, that the Respondent is an
employer engaged in commerce within the meaning of
Section '2(6) "and (7)'of the Act.
II. THE UNFAIR LABOR: PRACTICES
On October 21, 1982, Respondent's 11 construction
crew employees with other electrical crewmembers were
performing repair, installation, and maintenance work at
the Texas Lime Company plant near Cleburne, Texas,
Respondent serving as an independent contractor there.
The work consisted of installing new equipment, rebuild-
ing old equipment, and construction, including replacing
924 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
or repair of guardrails ' and other structures on the top
and sloping sides of a, lime tank 65 to 80 feet high, as -
well as performing similar work at lesser elevations and
on the ground . All-of the work was outside, and required
welding, cutting , grinding , metal fabrication , and electri-
cal.power . In addition , a cherry-picker-sized crane was
employed to lift employees from the ground and place
them on the top or sides of the lime tank where , entirely
exposed to the elements , tasks were ' to be performed.
The employees were not represented by a labor organi-
zation. -
The weather . on October 21 was ' rainy-at times
heavy-with intermittent light showers, - mist and fog, oc-
casional letups , and, early in the day , lightning and thun-
der. This did not augur .well for employees or Respond-
ent because their work location was - a difficult one under
the best of ;weather conditions . Thus, Respondent's
project - superintendent Bill Brickell testified: -
[The working conditions ] they are bad and worse.
There is no good working conditions, ' not one of
them . You have either got lime in your eyes, you
got quick lime on you , it is burning you . If it rains,
it is slick,, it is muddy , it is messy . If-it is dry and
the wind is ;blowing , it gets in your, nose and in
your lungs and they just-the working conditions
were not good . at the lime plant.
Brickell 's description explains why, as he-testified fur-
ther on cross-examination , he fully expected a rain-out to
be declared on -October 21, due to the weather condi-
tions; in fact , he admitted he would have declared a rain-
out' except that.-' his 'superior, Project -Manager Mel
Steger , under pressure 'from Texas Lime officials to con=
tinue .working during a power -outage -caused plant shut-
down, insisted that respondent employees work, telling
Brickell , "[W]e was goiiig ' to work if he [Steger]'had to
hold an - umbrella for the hands ,' as recalled by crane op=-
erator Wayland Bachhofer.'
Despite shouts from some employees ' assembled ' in the
toolhouse awaiting for orders 'from ' Brickell
,
and` Steger
for a rain-out (cancellation of the ' workday); griping
about working in the 'rain , 'and unsafe conditions , -the em-
ployees were ordered to start work and did so: If is note-
worthy that Brickell is quoted by employee Preston Ray,
without denial by- the former, as stating he did not 'know
what a Texas Lime official being consulted by Steger on=
this decision t`hag to ' do with it: If it is- raining we • can't'
work.'-"
'Further noteworthy-' is testimony by' welder = Helper'
Thomas Murray - that he told ' Brickell at the 'time it was=
too dangerous'-to work on the tank in the , iain.'Brickell;'
however , was not' asked to ' deny the testiniony'by em-
ployees above 'that they protested having to ' work • in'
unsafe conditions in the "rain while assembled in'the tool-i
shed' awaiting- orders. Instead , Respondent counsel= asked
Brickell whether, 'while) Brickell 'was on top-- ofi-the tanks,'
any individuals said anything about unsafe conditions and
he replied no, thereby leaving unrebutted and credited
the employees ' testimony on this point . See Purolator Ar-•
moved,= Inc., -268 NLRB :1268 aY 1276 (1984). ,
In any event, during the ensuing hours that morning,
employees did in- fact' confront serious hazards ansing
from the already dangerous but then rain-worsened con-
ditions at the lime plant.
Thus, employees reported accounts of receiving elec-
trical shocks while working with electrically powered
tools and equipment in the wet weather, slips, falls, and
near-falls on heavily lime-encrusted surfaces on catwalks
and tank slopes- where 4-foot guardrails failed to offer
complete protection as they were constructed with wide
openings, concern over falls from considerable heights,
75 to 80 feet above the ground, and poor visibility due to
lime blowing in the wind and muddying, surfaces, includ-
ing sticking to the windows of a cherry-picker crane
used to, transport employees to and from the tank tops.
This caused the crane operator to lean outside the oper-
ating cab to get a clear view of employee hand signals
used to, guide him in transporting'the men and equip-
ment, welding rods, grinders, and tools in 5-gallon buck-
ets up onto the elevated'wo'rk locations. Attached to the.
end of the crane boom was a basket measuring 4 feet by
4 feet where employees were carried with equipment to
the guardrail area -on the tank.- The basket, a movable
container which moved forward and backward, required
the transported employee to crawl out over it and then
down the other side of the handrail onto the catwalk.
The crane operator, leaning outside, the cab to see as best
he could what "he was doing up there" had to stretch
his body to reach the crane controls and thus was oper-
ating the crane from an awkward, unsafe • position. The
employee passengers confronted these conditions, the
complex maneuverings into and out of the basket in poor
visibility onto surfaces slickened by wet lime at consider-
able heights in the, control of an operator obviously
handicapped by rain, wind and blowing lime, at different
times throughout the morning for, as the rain would fall
harder, the men would be brought down from, their
perches, assembled in the toolshed, and then be ordered
back up again whenever the rain slackened. They had no
protective clothing and were wet from the rain through-
out .the morning. Other employees, assigned to work at
lower elevations or on the ground, reported that condi-
tions made it impossible to work.
Thus, during a hard rain interval while the men were
assembled in the toolshed, employee Preston Ray, a lead-
man formerly classified in the spring as a working fore-
man, and reassigned that morning to ground work, testi-
fied there was a lot of discussion by employees about
how hazardous it was on the tank tops, and -that he told
Brickell, "[t]his is a bunch of bull, working in these, kinds
of, conditions." Ray. testified he had gotten shocks that
morning during welding work. He further testified that
Brickell acknowledged • his complaint' 'stating,' ."I, know
it-I tried to get him [Steger] to send them home, but it
is not me , it is Mel [Steger]." Ray also - complained to
Steger=-that "it was kind of crazy to try to work in that
kind of weather" but Steger merely: referred to the fact
that a Texas Lime Company official wanted the- work
done and when the rain slackened- ordered the men back
to work. Ray's version is credited over Steger's since the
latter's • general denial -did not specifically address Ray's
MCEVER- ENGINEERING 925
account. Moreover, other employee versions- further cor-
roborate employee complaints being communicated
during the • rain-forced interlude. Welder helper Kevin
Morgan placed Brickell with employees-as well as
Steger-in the shed when -employees were grumbling
and complaining about not wanting to go back there (to
worksites) that they were already wet.' Employee
Thomas Murray testified he told Steger and Brickell that
it was too dangerous "out there," that it was "slick," and
that he recalled just about everyone complained ,at one
time or another to them.
After returning to their worksites under orders to do
so, the employees shortly afterward were forced-by re-
newed rainfall to descend again and seek shelter until, as
it continued to rain, ,the lunch.period, 12 to 12:30, ar-
rived.
The seven employees involved in this case, five of
whom had been working on the tank slopes or environs
on elevated high areas, and two • who had been working
on an elevated platform until assigned other work on the
ground, drove together to a nearby point across from a
park and had lunch. During this time, the seven employ-
ees discussed the conditions 'described' above, some ex-'
pressed an unwillingness to return to work in wet
clothes, and the possibility that 'a dangerous fall could'
occur and the person involved would never be able to
work again ; It is clear from the corroborating testimony,
and therefore found, that the seven ' employees 'together
reached a decision not to return'to work in the rainy,
wet, dangerous working conditions prevailing at the ,lob-'
1 1,
site. _ ` ' ' -
When the seven employees failed to return for' work
from their nearby lunch by 12:30, Brickell sent the coni=
pany clerk, Eddie -Challenger, to their location to` see
what the problem was. The location was known 'to them,
as they had seen the men parked in their vehicles when:
Brickell and Challenger had themselves returned from,
lunch in town: There is a variance in the accounts ren
dered by Challenger and employees,' the former testify-'
ing he was told upon =inquiry into what `the men were'
doing, that they were just not ready to go back to, Work.
yet, and the -latter-two employees-testifying that they'
told Challenger, they were not going to return to work'
until it stopped raining, that when it stopped, they would
return. Challenger was' not asked to deny the specifics' in
the employees' accounts; -moreover, when Steger testi-
fied,-he stated Challenger told him that, "men had com-'
mented that they were not going to- come back"to.
work," a more} blunt account than even Challenger de
scribed' as being given to him by the employees, suggest-
ing a^possible self-serving tailoring in Respondent's posi-;
tion on' this point. The'-employee-version, int'any. event,)
was not, specifically addressed by Challenger and there'
fore remained undenied. It is credited. ' • '
W_hen:Brickell learned from Challenger.'that, the men'
"were not ready to come back to, work" he instructed.
Challenger to fill out termination slips on the seven em-
ployees.for failing to,return to work. While Respondent'
elicited testimony that Steger "investigated" the reasons
for the employees'- action before ratifying Brickell's ter-
mination of the ,employees shortly thereafter,. such testi-:
mony described merely. Steger's going onto the-tanks
where.. substituted employees-electricians-were per-
forming' the work and asking if they knew what the
problem was. Since any genuine interest or curiousity
about the employees'-'problems ' could have; on the face
of it, been quickly satisfied by a short visit to the' em-
ployees down the road and a question posed by Steger
(or Brickell) to'Preston Ray, a leadman whom Respond-
ent claims was one of its full supervisors, and who was
known -by Respondent to be with the employees, the fact
that no such genuine' interest was, present-instead only
retaliatory anger for the employees' concerted action-
seems apparent, since -Steger made no such effort.
The employees returned to the jobsite around 1:30
p.m. when the rain stopped, learned they had been termi-
nated and, after heated discussions and angry confronta-
tions with Steger and a Lime Company official by one or
more employees, packed up their tools and left the prem-
ises. While there was testimony about these extraneous
events, and past rain-out policy, beer dunking, alleged
assault, and threats following the terminations, a prior
warning about reporting back to work on time, and a
rule- concerning the'reporting of unsafe' conditions, both
Steger and Brickell admitted the employees were termi-
nated solely because they had failed to return to work by
12:30 'p.m., the end of the employees' lunch period and
therefore such extraneous matters are irrelevant to the
issue in this case , which is solely whether employees
were discharged for engaging in protected concerted ac-
tivities. • ' '
Analysis and Conclusions
The law is, clear,., has been stated often, and need not
be belabored. When employees acting in concert_to-pro-
test the existence ;of what they in good faith perceive to
be unsafe, working 'coriditions_withhold their labor from
the employer for such purpose they are considered to be
engaged in -,concerted -activity protected under,Section 7
of the Act, and may not lawfully. be punished by their
employer, for; their conduct. NLRB v. Washington Alumi-
num Co., 370U.S. 9 ,(1962), Union Boiler Co., 213 NLRB
818 (19.74);, Du-Tri "Displays, 231 NLRB 1261 (1977); E.
R.,.Carpenter Co.,! 252; NLRB 18 (1980); Service Machine
& Shtpb.uildtng ,Corp., 253, NLRB 628 (1980).
Nor would Respondent's rules, either the rule requir-
ing employees to notify or, report to the Respondent any
unsafe conditions or the rule that-,employees report back
from lunch on -time, prevent the employees from taking
action, "if their action is a means of protesting what they
perceive•,to ibe intolerable working, conditions." Tamara
Foods„258-NLRB,1307, 1.308,(1981). As,,the,Board noted
further,, whether- or .not the protested ;working condition
was. as objectionable as believed by: employees• or,wheth,
er. the-employees. could have, pressed their concerns in -a
more -effective or reasonable manner, is, irrelevant to
whether, the activity, is.-protected- by the Act. Nor does
the, absence of a specific -demand .render their conduct
unprotected, particularly where, as here, the employees
are unrepresented and the employer, from surrounding
circumstances, should, reasonably see that "improvement
of working conditions 'is behind the employees' action."
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tamara -Foods, supra, and cases cited therein, and
Wagner Smith Co., 262 NLRB 999 (1982).
Respondent correctly points out on brief that in a case
involving - similar issues,' the circuit court therein found
employees unprotected inasmuch as no employee griev-
ance had been presented to the employer therein for res-
olution before the employee activity, occurred. However,
in a later Board case adopting the decision by Adminis-
trative Law Judge Robert Leiner, it was reiterated, "Nor
does the fact that employees fail to make a specific
demand to the employer automatically render their con-
duct unprotected." Serendippity-Un-Ltd., 263 NLRB 768,
775 (1982). It is, moreover, a matter not fairly in dispute
given the above findings that the employees had specifi-
cally directed their complaints to Respondent's admitted
agents Brickell, Challenger, and Steger prior to their
concerted action in refusing to return to work after
lunch until the rain stopped. As, stated in a. case involv-
ing employees assigned to do welding work on the slop-
ing sides of a high silo in recurring snow showers, off
and on all day, and hampered by poor visibility, "Cer-
tainly the Act does not require that construction workers
in such a situation use words of art and say in precise
words that we are a group of employees, who are telling
you for the third or fourth time that we-are not going up
on that silo this morning, because it is unsafe ." Sargent
Electric Co., 237 NLRB 1545 at 1548'(1978). It is note-
worthy too, of course, that the dangers inherent in work-
ing in the rain at this lime plant including the danger of
electricial shock, would seem to be so 'apparent that a
remark by the employees would be unnecessary in any
event. Service Machine & Shipbuilding Corp., 253 NLRB
628; 630 (1980). Steger, as undenied, was under a lot of
pressure to get the work done, a plausible explanation
for his fast adoption, of Brickell's application of, the, har-
shest type of penalty. for the employees'. nonreturn to
work. See Wagner-Smith Co., 262 NLRB 999, 1002
(1982). ''
Nor is it of consequence that the seven dischargees re-
fused to return to work without reciting the conditions
that the employer would have to meet in order for them
to return to work, or that the employees, ' on return to
the jobsite later in the afternoon, did not again specifical-
ly refer to the dangerous conditions which had precipi-
tated their concerted action. Diversified Case Co., 263
NLRB 873 (1982): As quoted therein"at 879 from the Su-
preme Court's decision in NLRB v. Washington Alumi-
num, 370 U.S. 14 (1962): _ , . • . -
To compel: the Board to interpret and - apply' .
language 'in the, restricted fashion ..' .'would only
tend to frustrate the policy, of the- Act to• protect the
right. -of, workers to., act together-, to better their
working conditions. `Indeed; as indicated 'by this
very case, such an interpretation of § 7 might place
burdens upon employees. so 'great, that "it would ef-
fectively nullify-the right to engage"in concerted,ac-
tivities- which that section 'protects. The ... %. em-
ployees here were part of a small group of employ-
ees who were wholly unorganized. They had no
' NLRB v H Marsden, 701 F 2d 238 (2d Cir 1983)
bargaining representative and, in fact, no representa-
tive of any kind to present their grievances to their
employer. Under these circumstances, they had to
speak for themselves as best they could.
Finally, Respondent's contention that there is no credi-
ble evidence about four employees that they engaged in
any group action that day inasmuch as they did not testi-
fy is rejected as lacking in ment in light of unrebutted
testimony by employee witnesses that all seven named
dischargees decided not to return to work for the rea-
sons established and described above. Respondent treated
all seven as a group when Brickell instructed their termi-
nation slips be prepared for failing to return to' work
after lunch on October 21, and - Steger ratified such
action against all seven employees. 'Sargent Electric Co,
237 NLRB 1548.
I find that the seven employees were discharged for
refusing to return to work in unsafe rainy, wet condi-
tions, and that such discharges, resulting from the em-
ployees having engaged in protected concerted activities,
violated Section 8(a)(1) of the Act.-
The Alleged Supervisory Status of Leadman
Preston Ray
Preston Ray was first hired by Respondent- in April
1981 and worked as a fitter for 6 months. He was about
the third highest in seniority and was made foreman in
the construction crew until the spring of 1982 when a
series of layoffs reduced the crew to 11 employees, at
which time' Ray was reduced to the position of working
foreman, the- equivalent of a leadman-type position. The
record shows that, apart from using a clerk's desk in the
office about one-half hour daily, Ray - had no special
privileges or fringe benefits not accorded rank-and-file
employees, like them was hourly paid, received pay for
overtime work, and spent 90 percent of his time perform-
ing manual work alongside other employees. In fact, Ray
-had been told he would have to start-"working with the
hands, just like one of the hands" (employees) 8 weeks
or so before his termination.
Ray never hired or fired any employee, received no
input from higher supervision regarding pay increases,
which were recommended by Brickell and approved by
Steger. Ray never disciplined employees, granted time
off, or assigned overtime, and worked the same hours as
other employees, reporting to work at the same place
they did: He was paid $12.93 an hour, about 25 cents per
hour more than the next classification below him. While
Ray went over job assignments with' Brickell, as did
Foreman, George Mizelle,'and assigned men to - work,.it
appears he did. so based merely on what the work- called
for, that is, -a welder, fitter, or helper and so forth. This
early morning assignment was frequently changed' 'by
Mel Steger.and, in any event, appears to have ' been a
routine matter for Ray, not requiring or involving the
exercise of independent judgment. Ray attended -weekly
undefined "policy" meetings with management, also as
did Mizelle, and was consulted by Brickell when layoffs
were required; however, on the single-occasion reported
when Ray did not agree with Brickell, the latter did not
MCEVER ENGINEERING
accept Ray's position so that in the single instance re-
ported it is clear that Ray's recommendation was the
subject of independent scrutiny or review rather than
ready acceptance .' Suffice to say further that Ray's re-
peated recommendations-be they- to be considered as
being delivered in an indirect manner . or not-that the
hands not be required to work on October 21 due to the
rain and unsafe working conditions-were also . -not ac-
cepted by higher management . Given the fact that Ray
shared equally in employment benefits with other em-
ployees , with whom he. regularly spent 90 percent of his
time in manual work, had no authority to make changes
in their working conditions or to effectively recommend
such action , and his selection of employees for work did
not require the exercise of independent judgment but was
routine in nature , I find that Ray was not a supervisor as
defined in the Act. Hydro Conduit Corp., 254 NLRB 433,
437 (1981). - ,
CONCLUSIONS OF LAW
1. McEver Engineering, Inc: at all times material • has
been and is an employer 'engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Preston Ray is not a supervisor as defined in the
Act.
3. By discharging Thomas Murray, Ector Yzaguirre,
Kevin Morgan,, Ron Emerson, Kenny Hampton, Arthur
Wallace, and Preston Ray on, October , 21,, 1982, Re-
spondent has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed iii Section 7
of the Act,and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act. .
4. The aforesaid unfair labor practices ai'e•unfair labor
practices affecting 'commercetwithin the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the-Respondent has engaged,in;cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action. designed to effectuate the poli-
cies of the Act.,
Having found Respondent discharged several employ-
ees in violation of the Act, I find it necessary to order
Respondent to offer them2 full reinstatement to ,their
? I find no basis to deny reinstatement to employees Kevin Morgan
and Preston Ray, who were involved in unrelated incidents with a Re-
spondent official, and a lime company representative respectively, follow-
ing the discharges on October' 21. In' the first incident when' employee
Morgan ' was informed about the discharge , he angrily questioned Re-
spondent Manager Steger about safety shoes and- an expected wage, in-
crease, threatening Steger with an assault unless given a reply Steger re-
sponded calmly and the mcident , was closed and Morgan departed In-the
second , a private encounter between employee Preston Ray and the lime
company official James Thompson,' Ray was loading his - truck with his
tools about to leave the premises in the wake of being discharged when
Thompson approached Ray and ordered him to leave or he would call
the police There was a single shove by Ray, who threatened to put
Thompson in the hospital The momentary affair was described by an-
other lime company official, Vice President Larry Franz, as "Some
verbal exchange between Jim and Preston; Preston made some threaten-
ing gestures and additional heated conversation occurred-they both kind
927
former positions or, if such positions, no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other, rights and privileges, and make
them whole for any loss of earnings that they may have
suffered. ,
Backpay shall be computed in accordance with the
formula approved in F W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977).3
On these. findings of fact. and conclusions of-law and
on the entire record, I issue the following recommend-
ed' .
ORDER
The Respondent, McEver Engineering, Inc., Cleburne,
Texas, its officers, agents, successors, and assigns, shall
- 1. Cease and desist from -
'(a) Discharging employees because' they have engaged
in protected concerted activities.
'(b) In any like' or' related manner interfering with, re-
straining , or' `coercing I employees' 'in the exercise' of the
rights guaranteed them under' Section 7 of the Act.
2. Take the following _affirmative action necessary 'to
effectuate the policies of the Act. '
(a)' Offer'to Thomas Murray, Ector Yzaguiri'e; Kevin
Morgan, Ron Emerson, Kenny Hampton, Arthur Wal-
lace, and Preston Ray immediate and . full reinstatement
of backed off at,that point-Nothing [else] really of, significance ,[oc-
curred] „
The Board recently ' addressed the subject 'of,strike misconduct which
warrants denial of reinstatement Clear Pine Mouldings, 268 NLRB 1044
(1984) That decision makes it clear that the test for determining whether
strike misconduct warrantsidenial of reinstatement has been revised and
expanded so that henceforth not only violent acts but'thieats to engage in
such acts are within the prohibited sphere of conduct warranting denial
of reinstatement to sinkers, the standard being,-"whether the misconduct
is such that , under the circumstances existing, it may ' reasonably tend ,to
coerce or intimidate employees in the exercise of rights protected. under
the Act " Supra at 1046 The rule's purpose to discourage the presence of
violence on 'the industrial relations scene is served by including in its'pro-
tective prohibitions strike misconduct aimed at individuals other than em-
ployees alone ;'- such as supervisors or, others -who do not enjoy the protec-
tion of Sec 7 of the, Act
Bearing the above in mind , I find 'that the" record contains no basis to
conclude that the rights of Ray and Morgan to reinstatement arising from
their unlawful discharge,should` be denied' In the fiist'place, there is no
contention by Respondent that such rights ought to be denied , and it is
clear that these two separated , brief, and individual encounters between
the two employees and the 'officials involved essentially private matters
arising on the spur of the moment ignited by the earlier unsafe working
conditions and discriminatory discharges 'As'such, the incidents were not
part and parcel of a "strike" or part of a calculated action to achieve
"strike" objectives Steger manifested ; no-sense of fear • or,apprehension in
the argument with Morgan , in fact, he calmly explained to the latter why
no raise had been forthcoming , and the incident was quickly 'over There
is no evidence that any'employee was •af the sceh'e 6f Ray's'nimor brush
with the Texas Lime Company official; whose associate and superior offi-
cer downplayed the occurrence to-what it was worth •I.can-thus find no
basis to conclude that the conduct , of Ray and Morgan "reasonably
tend[ed] " to coerce or intimidate employees in the exercise of rights pro-
tected under the Act,- 'so that tli se`ein'ployee`s''rights`to'reinstatement
ansing 'frotn the Respondent 's'clearly'unlawful'action .shouid,be denied.
See generally Isis Plumb:ng ,Co:,,,138 NLRB 716,,717-721 (1962)
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses , _ ,
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings, in the manner
set forth in the remedy section of the decision.
(b) Remove from its personnel or other files any refer-
ence to the discharges of Thomas Murray, Ector Yza-
guirre, Kevin Morgan, Ron Emerson, Kenny Hampton,
Arthur Wallace, and Preston Ray on October 21, 1982,
and notify said employees in writing that this has been
done and that evidence of these unlawful discharges will
not be used against them in any way.5
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under-the terms of this Order.
(d) ' Post at its place of business 'in Cleburne, Texas,
copies of the attached notice marked "Appendix."'
Copies of said notice on forms provided by'the Regional
Director for Region 16, after being signed by Respond-
ent's authorized representative, shall be posted by it in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the said notices
=are not altered, defaced, or covered by any other materi
al.
(e), In the event that the Texas Lime Company project
is completed, mail .a copy of the notice provided herein
to each of the seven employees who were discharged.'
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
S Wayne Smith Co, 262 NLRB 999 (1982)
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read " Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
7 Sargent Electric Co, 237 NLRb 1545 (1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The National Labor Relations Board gives all employees
these rights.
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge our employees because they
engage in concerted activities which are protected under
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce' our employees in the exercise of
the rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Thomas Murray, Ector Yzaguirre,
Kevin Morgan, Ron Emerson, Kenny Hampton, Arthur
Wallace, and Preston Ray immediate and, full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their, seniority or other rights and privileges pre-
viously enjoyed.
WE WILL make them whole for any loss of earnings
they may have suffered as a result of our unlawfully dis-
charging then; with interest. -
'WE WILL remove from-our files any reference to their
discharges on October 21, 1982, and WE WILL notify
them in writing that this has been done and that evi-
dence of these unlawful discharges will, not be used as a
basis for future personnel actions against them. -
MCEVER ENGINEERING, INC. ,