Cleveland Construction, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1052 (N.L.R.B. 1998)

1052
325 NLRB No. 196
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions have be filed regarding the various 8(a)(3) and (1)
allegations dismissed by the judge.
2 The Respondent has excepted to some of the judge’s credibility
findings. Although the judge did not make specific credibility find-
ings, he did make implicit credibility findings by relying on the testi-
mony of employee Raymond DeNuzzo in his factual findings, and
on that basis concluding that employees DeNuzzo, Dewey Bruce
Murphy, and Michael George had gone to the job superintendent to
ask about their jobs, that DeNuzzo made a specific offer to return,
and that the superintendent responded that the employees were ter-
minated. It is the Board’s established policy not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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.
We note that, even if the employees did not make an uncondi-
tional offer to return to work, the Respondent violated Sec. 8(a)(3)
by terminating them for having struck. The complaint alleged such
a termination, and the judge reached that conclusion.
3 In accordance with our decision in Excel Container, Inc., 325
NLRB 17 (1997), we have modified the Order to require that, in the
event the Respondent goes out of business or closes its facility dur-
ing the pendency of these proceedings, the Respondent shall mail a
copy of the notice to all employees employed by it as of February
7, 1997, the date the unfair labor practice occurred, rather than the
date the strike began.
1 Respondent’s motion for an extension of time, until September
3, 1997, to file its brief was granted. The Union did not file a brief
but requested permission to file a reply brief. That request was de-
nied on September 30, 1997.
Cleveland Construction, Inc. and United Brother-
hood of Carpenters and Joiners of America,
Local 1207, AFL–CIO. Case 9–CA–34591
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On November 21, 1997, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cleve-
land Construction, Inc., Charleston, West Virginia, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2 (e).
‘‘(e) Within 14 days after service by the Region,
post at its facility in Charleston, West Virginia, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 7, 1997.’’
James E. Horner, Esq., for the General Counsel.
Brian D. Yost, Esq. (Holroyd & Yost), of Charleston, West
Virginia, for the Respondent.
Shirley Skaggs, Esq. (Cardwell and McCormick), of Charles-
ton, West Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. This case
is about a brief 2-week work stint in January 1997 by several
carpenters on a nonunion hotel construction project in
Charleston, West Virginia. Local 1207 of the United Brother-
hood of Carpenters and Joiners of America (the Union) re-
cruited four unemployed and/or underemployed men—
Dewey Bruce Murphy, Raymond DeNuzzo, Michael George,
and Jason Canterbury—to obtain jobs at the hotel site and si-
multaneously organize the employees there. Shortly after
starting their jobs, these men revealed their union status to
management and a succession of adverse things then hap-
pened, culminating in their termination. Thus, the issue is
whether their descent and exit from the job violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act).
The Union filed charges against the Employer, Cleveland
Construction, Inc., immediately after the termination of the
men. Shortly thereafter, on March 24, 1997, the General
Counsel issued its complaint, which was answered by the
Respondent on April 17, 1997. A hearing was then held in
Charleston, on July 22–23, 1997, at which the General Coun-
sel presented three of the four discharged employees as wit-
nesses. The Respondent then presented two of the jobsite su-
pervisors as witnesses. Finally, briefs were filed by the Gen-
eral Counsel on August 26, 1997, and Respondent on Sep-
tember 3, 1997.1
FINDINGS OF FACT
Respondent is a contractor in the building and construction
industry and in 1996 it started work on a new Embassy
Suites Hotel in downtown Charleston, West Virginia. At this
construction site, Respondent purchased and received over
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1053CLEVELAND CONSTRUCTION
$50,000 in goods from outside of West Virginia (G.C. Exh.
1(i)). ‘‘Sal’’ was the job superintendent in mid-January 1997
and he had a regular crew of about 10 carpenters working
on the project who rotated from one Cleveland construction
site to another (Tr. 223–224). As the project progressed, a
local unemployed carpenter, Raymond DeNuzzo, learned of
additional openings for carpenters. DeNuzzo had been a
union member since 1985 in New York (Tr. 178) and joined
Local 1207 in Charleston in 1996. DeNuzzo visited the job-
site and spoke with Sal, who hired him on the spot. Sal then
asked DeNuzzo if he had a crew and extra equipment for the
crew because Cleveland was short on equipment. Because
the job was nonunion, DeNuzzo was concerned about work-
ing there without first talking with Local 1207. To that end,
DeNuzzo spoke with the Union’s business agent, Robert
Sutphin, who said that it was okay to take the job. Sutphin
added that he would provide DeNuzzo with some extra men
to work there too (Tr. 132–137).
Shortly before the first day on the job, Union Official
Billy Thomas visited DeNuzzo’s home with Dewey Bruce
Murphy, who was to be a member of DeNuzzo’s crew. Mur-
phy was a journeyman carpenter who had been with the
Union a little over 1 year. Thomas then asked DeNuzzo
whether he would organize the job for the Union, and Thom-
as explained how this would happen. DeNuzzo had never or-
ganized a jobsite before and was somewhat reluctant. But he
needed the job and agreed. DeNuzzo would have the power
to decide when to disclose their organizing effort to the
Cleveland supervisors and would have to meet with union
officials after work to discuss how the organizing campaign
was going (Tr. 13, 137–139).
January 20, 1997, was the starting day for work. DeNuzzo
met Murphy at the jobsite that morning, and they were
joined by two nonunion people: Michael George, an appren-
tice carpenter, and Jason Canterbury. The four men talked
about how they would watch out for each other on the job
(Tr. 99, 140–141). DeNuzzo then walked over to Sal and
presented the other three. Sal hired them immediately but
told them that they would have to supply their own hardhats.
Because none of them brought any the group drove off to
get some and returned at 10 a.m. (Tr. 14–15, 101, 141). The
hotel’s construction was still in its initial stages and all four
men worked through the end of the week without incident
(Tr. 143–144). Fridays were a half day at work and after
quitting time Thomas met with Murphy to give him a letter
from Local 1207 addressed to Cleveland Construction, stat-
ing that the four men were going to attempt the organization
of the jobsite (G.C. Exh. 2; Tr. 18).
Before the start of the workweek of January 27, Sal was
replaced as job superintendent by another veteran Cleveland
Construction employee, Jack Brooks (Tr. 264). This was
Brooks’ first such position, as he previously held the lesser
title of foreman (Tr. 291, 299–300). According to DeNuzzo,
the four decided to present the letter to management some-
time soon because the atmosphere on the job was ‘‘tense.’’
DeNuzzo felt that Sal had been rude by saying that he was
not working fast enough. Also, other unnamed people criti-
cized his carpentry skills. He also felt that Brooks was rude
to him (Tr. 170–171). So, on Tuesday, January 28, all four
men signed the union letter and presented it to Brooks during
the first morning break. Brooks became red-faced and said
he ‘‘bet’’ the men would not be successful in organizing the
job for the Union (Tr. 19–20, 102–103, 144–145, 266). The
rest of Tuesday was uneventful (Tr. 60). Murphy did some
organizing work for the Union at lunch and after work (Tr.
59). Also, after work the four men talked amongst them-
selves about the job in general (Tr. 90–91). But the men did
not have any specific plans about what to do the next day
(Tr. 118–119).
On Wednesday, January 29, there was a morning meeting
of all employees, called by Brooks, at the gangbox, which
is where the workers stored their tools. Brooks stated that the
entire worksite was too messy and that lunch, if eaten on the
site, would have to be eaten in one specific area from now
on. Next, he announced that the workers would have to wear
new hardhats with a Cleveland Construction logo. Finally,
according to Murphy and DeNuzzo, Brooks stated that bath-
room breaks were now only allowed during regularly sched-
uled breaks or lunch (Tr. 21–22, 148). George also testified
that Brooks told the men to use the bathroom only ‘‘on our
own time’’ (Tr. 117–118). Brooks, however, denied issuing
any edict about bathroom breaks (Tr. 269). In this connec-
tion, Murphy testified that the bathroom policy was not en-
forced against the Cleveland Construction main crew (Tr.
22–23).
Later that same day, while using a chop saw to cut metal,
Murphy asked Brooks about getting some safety glasses and
a dust mask (Tr. 24). According to company policy, every-
one on the jobsite is required to wear safety glasses (Tr. 203,
226, 271). And according to Murphy, the chop saw safety
manual also recommends use of a dust mask (Tr. 43). About
15 minutes later, Brooks approached Murphy and threw
down a pair of safety glasses but said that there were no dust
masks (Tr. 24–25). Later, Brooks said, ‘‘Here come the trou-
blemakers’’ when Murphy and DeNuzzo walked by, a refrain
echoed by other workers. Brooks then criticized their car-
pentry skills (Tr. 29–30, 104–105, 146–147).
Still later in the day, Brooks assigned all four men to work
together installing metal track using a ‘‘Hilti’’ gun. The four
men had not previously been assigned to work together. In-
deed, Murphy never saw a four-man unit on the jobsite be-
fore or after (Tr. 23–24, 63, 106). But there was sufficient
work for all four men to perform (Tr. 123). The manufac-
turer of a gun similar to the Hilti recommends eye and hear-
ing protection (G.C. Exh. 5). Murphy is licensed to use the
gun but DeNuzzo’s license had expired (Tr. 27, 178). The
Hilti gun was loud but did not bother George (Tr. 107–108).
However, the noise bothered Murphy and DeNuzzo because
the area in which they used it that day was a ‘‘little more
confined’’ (Tr. 50). So, DeNuzzo asked Murphy to go to
Brooks and get some hearing protection. Brooks asked Mur-
phy why this was a problem now because he had used the
gun the day before without any complaint. Then, according
to Murphy, Brooks said that Murphy could go home if he
did not want to use the gun without hearing protection (Tr.
25, 29–30, 68–70, 108, 151–52). Brooks testified, however,
that he told Murphy that hearing protection and dust masks
should be in the gangbox. But Brooks did not recall if he
told Murphy to go home (Tr. 269–271). Neither Murphy nor
DeNuzzo ever saw any hearing protection or dust masks in
the gangboxes (Tr. 94, 165–166). And George never saw
anyone wearing safety glasses, dust masks, or hearing protec-
tion on the job (Tr. 127). Murphy then relayed Brooks’ mes-
sage to DeNuzzo and George, whereupon all three men left
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1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The record is unclear as to whether the picketers were comprised
of other Cleveland employees, or just other union members.
the jobsite to file a complaint with the local office of the Oc-
cupational Safety and Health Administration (OSHA). On the
way out, they told Brooks they were not quitting and Brooks
stated that they should return the next day (Tr. 33–34, 109,
153). Roy Atherton, Cleveland Construction’s general super-
intendent, visited the Charleston project that last week of
January and saw the union letter presented by the four men
to Brooks (Tr. 199, 227). As far as he knew, hearing protec-
tion was available on the jobsite and Brooks told him this
(Tr. 237, 258).
On Thursday, January 30, Brooks assigned several car-
penters, including Murphy, DeNuzzo, and George, to carry
sheets of drywall, which weigh 60–70 pounds each. This is
work typically performed by unskilled laborers. Brooks told
them that they would not need their tools for this type of
work. So, Murphy, DeNuzzo and George hid their tools
away in a nearby culvert. This drywall work lasted most of
the morning (Tr. 35–36, 73, 95, 110, 125, 154–156, 181,
311–315). Before lunch, Murphy moved his tools from the
culvert to his truck where he ate lunch (Tr. 313). After
lunch, Atherton spotted Murphy coming back 8 minutes’ late
and without any safety glasses. Murphy told Atherton that
the glasses were in his truck, along with his tools, for safe-
keeping. According to Atherton, Murphy had to return to his
truck, which was off the jobsite, several times to retrieve dif-
ferent items. At that point, Atherton told Murphy to go home
for the day (Tr. 37–38, 203–206, 242–243). As he was leav-
ing, Murphy testified that Atherton and Brooks followed him
out to his truck and stood in front of it blocking his depar-
ture for a few moments. Murphy added that Atherton said,
‘‘[W]e will be waiting on you.’’ (Tr. 52–54.) Atherton testi-
fied that he did accompany Murphy to his truck, but only to
make sure there was no trouble, following Murphy’s state-
ment that he was worried about his truck. Murphy and
DeNuzzo had in fact seen screws lying around Murphy’s,
DeNuzzo’s, and Canterbury’s trucks earlier (Tr. 312, 316).
Atherton denied saying anything to Murphy in the parking
lot (Tr. 254). Brooks backed up Atherton’s version of this
event (Tr. 274).
The next day, written warnings were issued to Murphy for
being late, not having safety glasses immediately available,
and not having tools on site to perform required work (G.C.
Exhs. 3–4). According to Atherton, these warnings were war-
ranted notwithstanding the fact that Murphy did not need his
tools to carry drywall. Rather, the Company’s policy is that
each employee must have his tools ‘‘on the job site’’ because
the employee is expected to perform a variety of jobs during
the work day, some requiring tools (Tr. 229, 245). But for
the first half of 1997, this was the only such Cleveland Con-
struction employee disciplined at the Charleston jobsite (Tr.
238, 288).
Friday, January 31, would turn out to be the final day on
the job for the four men. That morning, Orvie Nicholson, an
OSHA inspector, visited the jobsite pursuant to the complaint
filed 2 days’ earlier. Nicholson talked with George, who
falsely said that dust masks were provided by management.
But he said this only because Brooks and Atherton were
standing next to him and he wanted to keep his job (Tr.
112). Then Nicholson talked with Murphy, who explained
that the chop saw caused dust and noise problems for him.
Another Cleveland Construction employee, Orie Stephens,
interrupted Murphy’s conversation with Nicholson, telling
Nicholson that Murphy did not use the chop saw to cut the
metal that Murphy was apparently referring to. At this point,
Atherton and several other employees gathered around. Ath-
erton asked Murphy if he was lying to Nicholson. Atherton
then told Murphy to get back to work and install ‘‘a head-
er.’’ However, Murphy already saw a header installed at the
location that Atherton pointed to. But Atherton repeated his
order. Murphy then asked Nicholson for a business card, re-
alizing that his conversation with Nicholson was over for
now. A few moments later, a metal stud struck Murphy on
his hardhat and stunned him (Tr. 40–46, 160, 213–14). Ac-
cording to Atherton, it was common for metal studs to pop
loose on the jobsite (Tr. 215). DeNuzzo saw what was hap-
pening and then decided that the situation was now too un-
comfortable to continue working. So, he, Murphy, and
George left to go ‘‘on strike’’ and they told this to Brooks
and Atherton. The other employees laughed upon hearing
this (Tr. 46, 114, 160, 213). Canterbury, however, did not
join the other three (Tr. 86). Earlier, Canterbury approached
Brooks and Atherton, stating that he feared the loss of his
job because of his name on the union letter. But Brooks as-
sured him that he was welcome to continue working (Tr.
254–56, 273–274). After 11:30 a.m., as regularly scheduled
on Fridays, DeNuzzo, Murphy, and George went to Brooks
to receive their paychecks (Tr. 161–162).
The record is silent as to what happened on Monday, Feb-
ruary 3. But on Tuesday, February 4, DeNuzzo, Murphy, and
George returned to the jobsite to picket (Tr. 46, 1l5–116).
Canterbury joined the picket line later that week, which was
comprised of at least 20 people2 (Tr. 87–89). After a few
days of picketing, DeNuzzo was told by a union official to
return to work (Tr. 188). Therefore, on Friday, February 7,
DeNuzzo, Murphy, and George went to Brooks to ask about
their jobs. DeNuzzo testified that he told Brooks that ‘‘I was
here to go back to work.’’ Brooks replied, however, that the
men had quit. DeNuzzo disagreed, saying that they did not
quit but had merely gone out on strike. DeNuzzo then asked
Brooks if they were terminated, to which Brooks replied,
‘‘[Y]es, you are terminated.’’ Brooks added that the men
‘‘could get our checks but we couldn’t go back to work.’’
(Tr. 116–117, 164.) According to Brooks however, when
asked by the men if they still had jobs he replied, ‘‘[Y]ou
guys, you know, you walked off. That’s all I said.’’ (Tr.
277.)
As it turned out, OSHA never issued any citation to
Cleveland Construction after the January 31 inspection (Tr.
217–219). Rather, the OSHA people suggested to Murphy
that he go to the National Labor Relations Board (Tr. 84).
After four separate charges were filed, on January 31, Feb-
ruary 3, 5, and 13, 1997, someone from the Regional Office
suggested that Murphy return to the jobsite to inquire again
about work. Murphy complied in late March or early April,
but Atherton and Brooks told him that they were not hiring
(Tr. 91–92, 97). And as of the summer of 1997, the hotel
construction was 75-percent complete (Tr. 261). Brooks left
the job for 1 month, in June 1997, because of ‘‘too much
pressure.’’ But he returned in July (Tr. 289–292).
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1055CLEVELAND CONSTRUCTION
3 Jason Canterbury, of course, was the fourth man to sign the
union letter presented to Brooks. But the General Counsel’s com-
plaint does not allege anything about Canterbury. And as noted
supra, Canterbury did not testify.
4 Thus, Brooks’ denial that he told the men they were terminated
is rejected as inconsistent with the overwhelming weight of the
record evidence.
5 Respondent also throws in a red herring regarding George’s lying
to the OSHA inspector. Although it is true that George falsely said
that he was using a dust mask, he did this because Atherton and
Brooks were listening, and George did not want to jeopardize his
job.
Analysis
The General Counsel alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by embarking upon a plan
to get rid of Dewey Bruce Murphy, Raymond DeNuzzo, and
Michael George3 immediately after these employees pre-
sented their job superintendent, Jack Brooks, with a letter re-
vealing their union status on January 28, 1997. Respondent,
however, contends that the Murphy-DeNuzzo-George work
stint was a bad-faith salting campaign designed ‘‘to disrupt
the Respondent’s construction project rather than organizing
its work force as no such organizing efforts were ever at-
tempted.’’ Upon a thorough review of the record evidence,
the presiding Judge concludes that neither characterization of
this brief work stint is correct. Nevertheless, as explained
below, this case can be easily resolved beginning with the
events of January 31, which is when the men began their
strike.
At the outset, however, the presiding Judge rejects the
General Counsel’s theory that Respondent hounded the men
out of their jobs. In this regard, the allegedly harsh working
conditions imposed by Respondent after the presentation of
the union letter on January 28 were neither discriminatorily
imposed solely on the four men, nor all that harsh to begin
with. Turning first to the events of January 29, Brooks’ bath-
room policy was announced at a meeting of all employees,
never enforced, and arguably rescinded by Brooks and his
superior, Roy Atherton, in Atherton’s later conversation with
Michael George (Tr. 118). Next, the allegation that Respond-
ent isolated the four men, presumably to hinder their organiz-
ing ability, is rejected. Simply put, aside from one January
29 episode, during which there was sufficient work for the
four men to perform as a unit, there is no other evidence of
any other segregation. Indeed, the General Counsel’s only ci-
tation in its brief of isolation is misplaced: the carrying of
drywall on January 30 by nonunion employees in addition to
the four men. Thus, the General Counsel has failed to estab-
lish any discriminatory isolation of the four men during their
stint at Cleveland Construction. Compare Munno Electric,
321 NLRB 278 (1996) (clustering of union activists at a dif-
ferent jobsite violates Section 8(a)(3)). Next, while it is
uncontroverted that Brooks said, ‘‘[H]ere come the trouble-
makers’’ to Murphy and DeNuzzo, this single utterance,
standing alone, does not give rise to an inference of union
animus by Respondent. See Guarantee Savings & Loan, 274
NLRB 676, 679–680 (1985).
Moving on to the allegedly onerous carrying of heavy
drywall sheets on January 30, it is highly significant that
Brooks assigned two other nonunion employees, as discussed
above, to perform this task along with Murphy, George, and
DeNuzzo. Also, it is unrebutted that this work needed to be
done and that it lasted for only a few hours. Thus, the Gen-
eral Counsel has failed to establish, by a preponderance of
the evidence, that the drywall carrying was a reprisal for the
union letter. Next, it is concluded that Atherton’s reprimand
and half-day suspension of Murphy was warranted. The evi-
dence is clear that he was late after lunch, albeit by only 8
minutes, and did not have his tools with him as required by
company policy, albeit they were nearby and not needed ear-
lier in the day to carry the drywall. As for the General Coun-
sel’s contention that another employee in the vicinity was not
also disciplined, the record about this other person is simply
unclear. Thus, notwithstanding the fact that Murphy was the
only employee disciplined in the first 6 months of 1997, it
cannot be concluded that Respondent acted unreasonably or
in a discriminatory fashion against Murphy. Finally, the evi-
dence is murky regarding any physical threat to Murphy
and/or the four men’s trucks. Although the record reveals
that there were screws lying around their trucks, it cannot be
said how the screws got there or whether this was an unusual
occurrence for a parking lot adjacent to a construction site.
And, as for Atherton and Brooks’ accompaniment of Murphy
to his truck, it is simply unclear whether this constituted a
genuine instance of intimidation or Atherton’s desire to make
sure that there was no danger to Murphy’s truck, following
Murphy’s statement that he was concerned about such a pos-
sibility. Accordingly, the General Counsel has failed to prove
a violation of Section 8(a)(3) of the Act.
As noted above, however, the direction of this case
changes with the events of January 31. To summarize that
day, the OSHA inspector visited the jobsite and talked with
Murphy, who had left work early on January 29 along with
DeNuzzo and George to file a complaint with OSHA follow-
ing Brooks’ failure to provide the men with breathing and
hearing protection in connection with their use of the chop
saw and Hilti gun, respectively. In the middle of Murphy’s
conversation with the inspector, a coworker accused Murphy
of lying, Atherton intervened and ordered Murphy back to
work, and a metal stud hit Murphy on the hardhat. At that
point, Murphy, DeNuzzo, and George announced they were
going on strike. After a few days of picketing, the three men
offered to return to work, whereupon Brooks told them they
were terminated.4
It is well-settled that employees have ‘‘the right to act to-
gether to better their working conditions,’’ especially where
employees are unorganized and have no representative to
present their grievances to an employer. NLRB v. Washington
Aluminum Co., 370 U.S. 9, 14 (1962). First, it is concluded
that the strike of Murphy, DeNuzzo, and George was con-
certed and clearly related to Respondent’s failure to provide
them with adequate safety protection. Indeed, they had left
work 2 days’ earlier to file a complaint with OSHA, and it
was the interruption of Murphy’s conversation with the
OSHA inspector that triggered the January 31 work stoppage.
As for Respondent’s contention that Murphy somehow lied
to the OSHA inspector that day, thus undermining the pro-
tected nature of the walkout, a correct reading of the record
reveals that one of Murphy’s coworkers simply accused him
of lying, not that Murphy actually lied. In any event, there
is no evidence to corroborate the coworker’s accusation.5 Re-
spondent likewise misreads the record in contending that the
three men had decided earlier in the day to walk off the job,
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1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Respondent incorrectly relies on Brooks’ hearsay testimony that
the OSHA inspector told him that they ‘‘passed’’ (Tr. 308). Thus,
Respondent is wrong in contending that OSHA concluded that hear-
ing protection was available and not required.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
and that this somehow also undermines the protected nature
of their decision to strike. Rather, there is simply no evi-
dence to support Respondent’s theory (Tr. 119–121). Second,
because the reasonableness of the workers’ decision to go on
strike is irrelevant, OSHA’s subsequent failure to issue a ci-
tation against Respondent is likewise irrelevant in determin-
ing whether the walkout is protected Section 7 activity. 370
U.S. at 16. However, it should be noted the record is unclear
as to why no OSHA complaint was ever issued.6 Further, the
evidence is clear that two safety manuals do recommend use
of breathing and hearing protection for the tools in question.
Third, it is immaterial that Respondent provided no such
safety protection to any employees on this jobsite, as the pre-
ponderance of the record evidence reveals. Rather, the plain
fact is that Murphy, DeNuzzo, and George believed such
protection was needed and they decided to exercise their Sec-
tion 7 rights to obtain such protection. Finally, it is likewise
immaterial that the General Counsel failed to establish ex-
actly what Murphy, DeNuzzo, and George were seeking from
Respondent beginning on January 31. In this connection,
their strike was still protected Section 7 activity notwith-
standing their apparent failure to ‘‘present a specific demand
upon their employer to remedy a condition they find objec-
tionable.’’ 370 U.S. at 14.
After the apparent conclusion of the strike on February 7,
it is concluded that Murphy, DeNuzzo, and George made an
unconditional offer to return to work when they approached
Brooks to ask him about their jobs. Respondent cites
Gaywood Mfg. Co., 299 NLRB 697 (1990), in support of its
contention that Murphy, DeNuzzo, and Brooks merely made
an ‘‘inquiry as to the status of their jobs.’’ However, in
Gaywood, the returning strikers said, ‘‘they would think
about returning to work.’’ 299 NLRB at 701. Here, there
were no strings attached by the three men. Rather, their in-
quiry was unequivocal and their offer to return was uncondi-
tional. Moreover, Respondent never hired workers to replace
any of these three men. Finally, Respondent is incorrect that
the three men engaged in a strategy of unprotected ‘‘hit and
run’’ strikes, by virtue of their early departure of January 29
and strike of January 31–February 6. Indeed, Brooks allowed
the men to leave early on January 29. Suffice it to say that
one work stoppage does not constitute ‘‘a pattern of intermit-
tent action which is inconsistent with a genuine strike.’’
Polytech, Inc., 195 NLRB 695, 696 (1972).
In summary, Respondent did not engage in a carefully pre-
meditated campaign to rid itself of the men who signed the
union organizing letter. However, Respondent stepped over
the line by terminating Murphy, DeNuzzo, and George, who
had merely engaged in a lawful strike to protest the safety
conditions at Respondent’s jobsite. Therefore, Respondent
violated Section 8(a)(1) of the Act, which ‘‘protects employ-
ees from retaliation by their employers when they seek to
improve working conditions through resort to administrative
and judicial forums.’’ Eastex, Inc. v. NLRB, 437 U.S. 556,
565–566 (1978).
Accordingly, Murphy, DeNuzzo, and George are entitled
to reinstatement with backpay. Also, the Respondent will
have to postappropriate remedial notices. Because this is a
construction industry case, however, where the job in ques-
tion may already be completed, we will have to wait until
the compliance stage of this proceeding to see whether
and/or where the three men will be reinstated. Dean General
Contractors, 285 NLRB 573 (1987).
CONCLUSIONS OF LAW
1. The Respondent, Cleveland Construction, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, the United Brotherhood of Carpenters and
Joiners of America, Local 1207, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove its allegations
at paragraphs 6(a), (b), and (c), and 7 of the complaint.
4. Pursuant to paragraphs 6(d) and (e), 8, 9, and 11 of the
complaint, Respondent violated Section 8(a)(1) of the Act in
terminating Dewey Bruce Murphy, Raymond DeNuzzo, and
Michael George.
5. The unfair labor practices of Respondent described in
paragraph 4, above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
Accordingly, IT IS ORDERED that Cleveland Construction,
Inc., Cleveland, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from discriminatorily terminating any
employees because of their protected concerted activity and,
in any like or related manner, interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Dewey Bruce Murphy, Michael George, and Raymond
DeNuzzo the jobs they were terminated from or, if those jobs
no longer exist, jobs at substantially equivalent positions at
new jobsites, without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(b) Make Dewey Bruce Murphy, Michael George, and
Raymond DeNuzzo whole for any loss of pay and benefits
they may have suffered by reason of their unlawful termi-
nation, to be computed as set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
(c) Preserve and, within 14 days of a request, make avail-
able 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.
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1057CLEVELAND CONSTRUCTION
8 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
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.’’
(d) Within 14 days from the date of this Order, remove
from its files, any reference to the unlawful discharges, and
within 3 days thereafter notify the former employees in writ-
ing that it has done so and that it will not use the discharges
against them, in any way.
(e) Within 14 days after service by the Region, post at its
facility in Charleston, West Virginia, and all other places
where notices customarily are posted, copies of the attached
notice marked ‘‘Appendix.’’8 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by
the Respondent at any time since January 31, 1997.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found herein.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees for engaging in
these protected, concerted activities.
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 Act.
WE WILL within 14 days from the date of this Order offer
Dewey Bruce Murphy, Michael George, and Raymond
DeNuzzo full reinstatement to their former jobs or, if those
former jobs no longer exist to a substantially equivalent posi-
tion without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL within 14 days from the date of this order, re-
move from our files any reference to the unlawful discharges
and within 3 days thereafter notify Dewey Bruce Murphy,
Michael George, and Raymond DeNuzzo in writing that this
has been done and that the discharges will not be used
against them in any way.
CLEVELAND CONSTRUCTION, INC.
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