Curtis Mathes Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 17, 1963

145 N.L.R.B. 473 (N.L.R.B. 1963)

CURTIS MATHES MANUFACTURING COMPANY 473
ists, machinist helpers, machinist apprentices, garage mechanics
and their helpers, watchmen, guards, and supervisors as defined
in the Act.
(b) All guards at the Cit-Con plant of Cit-Con Oil Corpora-
tion, excluding safety inspectors, all other employees, and super-
visors as defined in the Act.
[The Board dismissed the petition in Case No. 15-RM-172.]
[Text of Direction of Elections omitted from publication.]
Curtis Mathes Manufacturing Company and United Furniture
Workers of America, AFL-CIO, Local Union 376. Cases Nos.
16-CA-1748 and 16-CA-1765. December 17, 1963
DECISION AND ORDER
On April 30, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report and the entire record in the case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modification :
Respondent manufactures television, radio, and hi-fi combinations
at its plant in Athens, Texas. One part of its plant, designated "the
mill," is devoted to the production of wood cabinets. The mill is a
room approximately 240 feet wide and 400 feet long divided into
functional areas not all separated by walls. Thus, the mill consists
of the finish mill, the glue room, the rough mill, the knife grinding
department, the framing department, the cabinet room, and the sand-
ing area. The production process starts with the cutting of lumber
in the rough mill and continues through the finishing, sanding, gluing,
and other processes. 'Dust created by the operation of the saws,
sanders, planes, and other machinery utilized in the mill is collected
by a suction system through ducts attached to heads over each ma-
chine. The dust is gathered into the "harvestore," a container located
145 NLRB No. 52.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside of the mill, and periodically burned. Even when the suction
system is in operation the dust level in the mill is somewhat higher
than would be considered ideal, particularly in those areas, such as
the sanding area, where the dust is thickest. To remedy this, the
Respondent normally makes dust masks' available to all employees,
though under normal conditions most employees in the mill do not
wear them. From 5 to 15 times a year the suction system is shut
down for periods of up to several hours. This is generally caused
by a burned out motor, lightning, or a fire in the ducts or "harvestore."
During these periods the mill becomes very dusty, but once restored the
suction system reduces the dust level rather quickly.
Because of a fire in one of the ducts, the suction system was closed
on Friday afternoon, November 23, 1963, and remained closed for the
entire second or evening shift. It was restored the following morn-
ing, but because of a fire in the "harvestore," was shut down again
about 2:30 p.m. When the second shift reported for work at 5 p.m.
the system was still shut down, and it remained so until 9:30 that
evening.
There seems to be little dispute as to the nature of the conditions in
the mill while the suction system was off. Witnesses for both the
General Counsel and Respondent testified that the high dust content
in the air impaired visibility, made breathing more difficult, caused
sore throats, etc.
The events surrounding the walkout on the evening of November 24
are substantially set forth in the Intermediate Report. Briefly stated,
sometime after the start of the second shift on November 24, three
leadmen, Poston, McCall, and McClure, discussed among themselves
the possibility of walking out because of the dust. Poston also dis-
cussed this matter with Price, the foreman of the rough mill area.
According to Poston, Price told him that he (Price) and his men
were ready to quit their work stations and go to the plant cafeteria
to see if they could get something done about the dust. Poston further
testified that Price asked him to talk to other men in the mill to see
if they wanted to walk out and suggested to him that all the men who
wanted to leave meet at a specified water fountain at 7 p.m.
At 7 p.m. the 3 leadmen and about 20 other employees met at the
water fountain and proceeded to the cafeteria. Two hundred and
fifty employees remained behind, including Foreman Price. All the
men who walked out were from the rough and finish mill areas, but
135 employees remained behind in these two areas and continued
working. No employees from the sanding area, where the dust was
thickest, walked out. The employees who left their work stations
continued from the water fountain to the cafeteria where most, but
not all, "clocked out."
1 These masks are of two types One has a throwaway filter ; the second is a disposable
paper type.
CURTIS MATHES MANUFACTURING COMPANY 475
The men were met at the cafeteria by Supervisor Majors, who told
them that he did not blame them for walking out and that he would
speak to Superintendent Lewis about the matter. He returned short-
ly to report that he could do nothing with Lewis who was "too hot-
headed." Some of the employees spoke directly to Lewis, who allowed
those who had not "clocked out" to return to work. Lewis had tele-
phoned Mathes, the head of the plant, and Mathes shortly thereafter
reported to the plant. In the meantime, all but approximately 10
of the group in the cafeteria had gone home.
When Mathes arrived at the cafeteria he picked up the timecards of
those who had checked out and informed the 10 men who remained
that they had walked off the job, had voluntarily quit, and were no
longer employees of the Company.
The existing contract expressly excluded leadmen from its cover-
age and contained a no-strike clause.'
The Trial Examiner found that the November 24 walkout was a
concerted activity, which, in the absence of a "no-strike" clause, would
be protected.' He also found that working conditions in the plant
were "highly unpleasant" but not "abnormally dangerous" within the
meaning of section 502,4 and, since the existing contract had a "no-
strike" clause, he found that the walkout was not protected. We
specifically adopt these findings. The Trial Examiner further found,
however, that Foreman Price had encouraged employees to walk out
and that, because of such encouragement, the Respondent is estopped
from urging as a defense that the employees had breached the "no-
strike" clause at that time. We disagree.
We perceive nothing in the record to indicate that the Respondent
represented to the employees that they could walk off their jobs with
impunity. Not only did the contract proscribe strikes, but the Re-
spondent maintained in its plant a rule against unauthorized absences
which applied to foremen as well as employees. Though Price may
have discussed the walkout with Poston, or even encouraged it, testi-
z The clause reads:
On behalf of itself and the employees covered by this Agreement , the Union agrees
that there shall be no strike or stoppage of work or secondary boycott or slow-down
of work or picketing or disturbance on the part of or on behalf of the employees
covered by this Agreement during the term of this Agreement Any employee who
participates in or promotes a strike, work stoppage, picket line , slow - down , secondary
boycott , or disturbance , even of a momentary nature, may be discharged and only
the question of whether or not he did in fact participate in or promote such action
shall be subject to grievance procedure or arbitration.
9 N L R B v. Washington Aluminum Company, Inc ., 370 U.S 9
4 Relying on Redwing Carriers, Inc. and Rockana Carriers, Inc, 130 NLRB 1208, the
Trial Examiner concluded that the walkout was unprotected even though finding that the
employees had walked out in the good-faith belief that working conditions were danger-
ous We find that there existed no reasonable basis for their good -faith belief that work-
ing conditions were abnormally dangerous , in view of the fact that there were frequent
breakdowns of the suction system, only a small number of employees walked out , and those
in the worst area of the mill remained at work. Member Leedom joins in this footnote
only insofar as it implies that if the Board had a subjective good-faith test, that test
uu ould not be met here
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony by employee witnesses other than Poston indicates that they had
not spoken to Price directly and that many of the employees who
walked out did not know of Price's role in the events of November 24.
No witness testified that he walked out solely in reliance on Price's
representations. Furthermore, Price was a low level supervisor, and
a substantial number of employees who walked off their jobs were
from areas not under Price's jurisdiction. In these circumstances,
we find that Foreman Price had no authority to sanction any breach
of the contract and that the employees had no reasonable basis for
believing he had such authority. Foreman Price's conduct, there-
fore, affords no basis for application of the equitable rule of estoppel.
Accordingly, we shall dismiss the complaint as to all the alleged dis-
criminatees with the exception of the three leadmen who were not
covered by the "no-strike" clause in the contract.
ORDERS
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
Paragraph 1(b) is amended by inserting a period after the word
"protection" in the second line of the paragraph and deleting the
remainder.
Paragraph 2(a) is deleted and the following inserted in its place :
(a) Make whole Jesse Poston, John McClure, and Earl
McCall in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Order.
5 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Curtis Mathes Manufacturing Company, its officers, agents, suc-
cessors , and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Case No. 16-CA-1748, which originated with a charge filed October 25, 1962,
was the subject of an informal settlement agreement between the Regional Director,
the Respondent, and the Charging Party, dated November 1, 1962 , pursuant to which
the Respondent posted a certain notice for 60 days as prescribed in the settlement
agreement. Meanwhile , on November 28, 1962 , the charge was filed in Case No.
16-CA-1765, alleging the commission of further unfair labor practices. On
January 11, 1963, the Regional Director issued a complaint on the latter charge,
and on February 1, 1963 , he issued an amended complaint which consolidated the
two proceedings , and embraced the subject matter of the earlier proceeding as well
as the latter , on the theory that the subsequent unfair labor practices warranted the
setting aside of the settlement agreement . Issue having been joined by the filing
CURTIS MATHES MANUFACTURING COMPANY 477
of an answer, the case was heard at Athens, Texas, on March 5 and 6, 1963, before
Trial Examiner Frederick U. Reel. Thereafter, briefs were received from the
Respondent and from the General Counsel, and have been fully considered.
Upon the entire record in the case, including my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent, herein sometimes called the Company, is a Texas corporation with
a plant at Athens where it manufactures and sells cabinets for hi-fi, television, and
other electronic equipment, and annually ships in excess of $50,000 worth of finished
products directly outside the State. Respondent admits, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
The pleadings establish, and I find, that the Charging Party, herein called the
Union, is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case No. 1748-Respondent stimulates withdrawals from the Union
The Union represents a majority of the Company's employees, and the parties
enjoy contractual relations based on the Union's status as bargaining representative.
In September 1962, a company official ascertained that certain specific employees
desired to withdraw from the Union, and further ascertained that under union rules
such withdrawal could only be accomplished 10 days before the anniversary date of
the particular individual's membership. Respondent thereupon decided to acquaint
each of its employees with his rights in this respect and with the appropriate means
of exercising them.
Uncontradicted evidence establishes that Respondent summoned employees to the
personnel office and asked them if they wished to leave the Union. If an employee
replied in the affirmative, the Company prepared the appropriate letter for his signa-
ture. On at least one occasion, the Company, acting through the secretary of the
personnel director, not only prepared the letter, but also on a later date asked the
employee if she had mailed it and urged her to hurry to do so.
Such systematic interrogation of employees as to their desire for union member-
ship, and such active participation in, and encouragement of, their efforts to with-
draw, constitute interference, restraint, and coercion of employees in the exercise of
their Section 7 rights, and therefore violated Section 8(a) (1). In my view, the facts
here are closer to those in Hexton Furniture Company, 111 NLRB 342, than to those
in Perkins Machine Company, 141 NLRB 697. See footnote 4 of the Perkins case.
B. Case No. 1765-the walkout
On November 24, 1962, as more fully detailed below, a number of employees
on the second shift at Respondent's Athens plant left their workplaces and went
en masse to the plant cafeteria, after having been at work about 2 hours. The Com-
pany promptly terminated the employment of those who did not immediately
resume work, but reemployed them 3 weeks later. As found below, this walkout
was caused by the fact that the dust suction system was not in operation. As the
contract between the Company and the Union contains a "no-strike" clause, appli-
cable to all but three of the men who walked out, one of the issues presented is
whether the impact of that clause is nullified by Section 502 of the Act which pro-
vides, in pertinent part, ". . . nor shall the quitting of labor by an employee or
employees in good faith because of abnormally dangerous conditions for work at
the place of employment . . . be deemed a strike under this Act." As appears more
fully below, I find that the conditions were not "abnormally dangerous," but that
the "no-strike" clause was inapplicable to certain leadmen not subject to the contract,
and to other employees with respect to whom the Company is estopped from urging
its applicability.
1. The dust removal system
Production operations at the plant are carried on in a large room about 400 feet
long and 240 feet wide. Among the various areas in the room are sections known
as the rough mill, finish mill, and sanding areas. Various saws, planes, drills,
lathes, molders, and other machinery used in the manufacture of wooden cabinets
are used in the rough and finish mills; sanders are used in the sanding area. To
control the dust caused by the operation of these machines in the course of their
woodworking operations, the Company has a suction system consisting of hoods
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located over the machines to suck up the dust which is then carried through ducts
to an outside container or "harvestore," located next to the boilers, where the dust
is ultimately burned.
Even when the system is operating perfectly, the air in the plant contains more
dust than is generally thought agreeable or desirable for ideal working conditions.
This is particularly true in the sanding area where the dust is always thickest. The
Company furnishes its employees with masks designed to filter out the dust, but
under ordinary conditions most of the men prefer not to wear them. The masks are
of two types: an older style permanent mask with a replaceable filter, and a newer,
"throwaway," type, somewhat like a hospital mask in appearance.
From time to time the dust suction system is rendered temporarily inoperative,
as a motor may burn out or be incapacitated by lightning, or be shut off because of
a fire somewhere in the ducts or in the "harvestore." Such shutdowns of the system
occur from 5 to 15 times a year and may last several hours. On such occasions the
air in the plant becomes very dusty, but the revival of the equipment quickly restores
conditions to normal. Such shutdowns because of fire occurred on November 23
and 24, 1962.
2. The walkout of November 24
On Friday afternoon, November 23, 1962, a fire broke out in one of the ducts.
In an effort to prevent the fire's possible spread, the Company shut off the dust
suction system. The system remained shut down for the entire second or evening
shift The next morning, Saturday, November 24, the suction system was operating,
and continued to do so until about 2:30 p.m., when it was again shut off because of
a fire in the "harvestore" which necessitated cleaning out that piece of equipment.
The Company put on extra men to facilitate the work of cleaning out the
"harvestore," but the dust removal system was still shut down when the second
or night shift reported at 5 p.m. (leadman on that shift started work at 3:30 or
4 p in.), and, as events proved, remained shut down until about 9:30 p.m.
Conditions inside the plant were decidedly unpleasant during the first 2 hours of
the night shift, and caused some discontent among the men. Although the dust
was heaviest in the sanding area, the chief areas of discontent were the rough mill
and finish mill areas. Among the men who complained about the heavy concen-
tration of dust were three leadmen, Poston, McCall, and McClure, who discussed
among themselves the possibility of walking out because of the dust. Poston also
discussed the matter with Foreman Price, who was in charge of the rough mill area
Price told Poston that if conditions were not alleviated he and his men were ready
to go to the plant cafeteria as a group to see if they could "get something done that
way." Foreman Price asked Poston to "talk to some of the men in the plant and
see how they felt, and ask them if they wanted to go with us or to stay . " Price
suggested to Poston that the men who were walking out, meet at a certain water
fountain at 7 p.m.'
At 7 p.m. Poston, McClure, McCall, and over 20 other men gathered at the
water fountain and proceeded to the cafeteria Price was not in the group, having
apparently decided to remain at work. Approximately 250 men remained at work in
the large 400- by 240-foot room, including all the men employed in the sanding area
(where the dust was thickest) and about 135 men in the rough and finish mill area
(from which the walkout occurred). Some of the men abandoned the group
(either before it reached the cafeteria, or shortly afterward), having apparently
joined it in the misapprehension that the entire plant was being shut down The
remaining group of 21, which went into the cafeteria where they "punched out"
on the timeclock, included the 19 eventually discharged who are named in the com-
1 The testimony with respect to Foreman Price's role in these events is that of Poston,
corroborated in certain respects by hearsay testimony of McClure Price, although still
in the Company's employ, was not called as a witness, a circumstance which of itself
warrants the inference that his testimony would not have ref ted that of Poston More-
over, Charles Mathes, chairman of the board, admitted that "one df the supervisors en-
couraged [the walkout] or was symp-thetic to it, indicating he might walk out himself,"
and identified this supervisor as Price. Respondent introduced evidence that both Price
and Poston had been sharply reproved earlier in the evening (Poston twice) for being in
the boilerroom rather than at their Flaces of duty The reprimands may have intensified
their distaste for their working conditions, but have no relevance to the statutory protec-
tion, if any, accorded the other men who walked out As for Poston, I find that he too
walked out because of the dust conditions and not because of the reprimand or impending
discipline arising out of his visits to the boilers
CURTIS MATHES MANUFACTURING COMPANY 479
plaint herein, one Carroll, who had received special permission to go home because
of a respiratory complaint adversely affected by the dust, and one Rainwater, who
returned to work under circumstances described below.
Shortly after the men reached the cafeteria and clocked out, one Charles Majors,
a supervisory employee from another part of the plant, came into the room and
inquired why the men were there. Majors, agreeing that the dust conditions were
bad, and that he did not "blame [the men] a bit" for walking out, asked the men
to wait until he could speak to Night Superintendent Lewis about the matter.
Majors left, but returned to report that he could "do nothing with" Lewis, who
"was too hot-headed."
Lewis had in fact observed the walkout from a distant point in the room, and
promptly made inquiries of various employees, including Foreman Price, in an
effort to ascertain what was going on. Some of the employees returning from the
cafeteria asked Lewis to permit them to resume work, explaining that they had been
under the mistaken impression that the plant was being shut down. Lewis per-
mitted a number of them to return to work, but apparently withheld such per-
mission from Rainwater, drawing the distinction between those who had not "punched
out" in the cafeteria, and Rainwater, who had.
Lewis telephoned Mathes, the head of the plant, at the latter's home to advise
him of the walkout, and Mathes came to the plant at once. He went directly to
the cafeteria, picked up the timecards of the men who had punched out, and told
the approximately 10 men still lingering in the cafeteria that as they had walked off
the job, he considered that they had voluntarily quit and that they no longer worked
for the Company. Rainwater thereupon jumped up to explain that he had not
understood what was happening when he came out, that he wanted to return to
work, and that Lewis would not let him. Mathes gave Rainwater his timecard and
he went gack to work.
The Company continued to adhere to the position that the men who walked out
had thereby severed their employment, and those who reported for work on the
days following were so advised. On December 14, however, offers of reinstatement
were made to all, without prejudice to the Company's right to maintain the legality
of its action in severing the men from the payroll.
3. Dust conditions in the plant at the time of the walkout
The witnesses who were in the plant on the evening of November 24 generally
agreed that the dust was thick and unpleasant, that it reduced visibility, and that it
was disagreeable to breathe. The parties stipulated however, that the employees on
the night shift who did not quit work with the 19 involved in this case (some 250
in number) "would each testify that they did not think abnormally dangerous con-
ditions existed on that night."
Earl McCall, a leadman, testified that conditions that night were the worst he had
seen in his 4 years at the plant, that breathing the dust made him sneeze, that it
burned his nose and eyes, that "you can just feel it burning down in his chest
after you breathe it so long," and that after breathing it a time he began to spit
up dust and continued to do so for 4 or 5 days. McCall's job involved the risk
of injury from sticks blown out of the machine, and he testified that the reduced
visibility that night reduced his chances of avoiding such flying objects According
to McCall, he asked for a dust mask that night and was told by Greene, the supply
man, that none were available.
McCall's testimony as to the availability of masks is sharply contradicted by
Greene, a union member and former president of the Union, who testified that at
all times that night he had an adequate supply of the "throwaway" masks, and that
no one who asked for one was refused. I credit Greene's disinterested testimony
on this point. The force of McCall's testimony as to the dangerous conditions is
also somewhat mitigated by his testimony that because of the dust he could just
barely see 40 feet away, from which it may be fairly inferred, I believe, that visi-
bility right at his machine was not so impaired as materially to increase the normal
danger from flying objects. (I do not mean to minimize the danger, for McCall
showed scars from injuries received when visibility was good. But, considering
the speed at which the objects must have been moving when they struck him, and
the fact that visibility was reduced but far from the point of obliteration, I doubt
that McCall's working conditions could fairly be termed "abnormally hazardous"
because of increased danger from flying objects ) Finally, as detailed below, I find
McCall's actions to be protected by the statute even if the conditions were not
hazardous, and there is no positive showing that any of the others who walked out
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were similarly endangered by flying objects, although it may be fairly inferred that
the other members of McCall's crew, and others working on similar machines, were
exposed to similar hazards.
McCall testified that conditions on Saturday when the men walked off were as
bad as they were at the end of the shift Friday. Johnny McClure, a leadman on
the molders, testified that on Friday the men made "the usual complaints about
the suction being cut off." In addition to testifying that the dust rendered breathing
difficult,2 McClure stated that the accumulation of shavings and dust on the floor
obscured the "pressure bar" on the molder, and that if this device slipped off, the
operator might be injured because the knives on the molders could "catch" a board
and throw it. McClure testified that the pressure bar had slid out that night, and
that he called Night Superintendent Lewis' attention to that fact during the interval
between the walkout and Mathes' arrival at the plan. Lewis denied having discussed
the pressure bar with McClure on this occasion, and both Lewis and Plant Manager
Hardy denied that any danger to the operator would result if the bar did slide out.
Zether Bell, a helper on a ripsaw in the rough mill, testified that on Friday,
November 23, conditions were "like a big sandstorm in West Texas," the overhead
lights were "foggy or cloudy," and that he tried (for the first time) to wear a mask,
but found it smothering and tended to throw dust in his eyes. Still with respect to
Friday, he testified that breathing the dust made his throat sore, that he would
sneeze it out of his nose, and that it made his head start to hurt above his eyes.
Leadman Jesse Poston similarly described the lights as hazy on Saturday night and
testified that "it was very hard to breathe in there" as the dust "would just choke
you." Henry Dodds, who worked on a trim saw, testified on rather conclusory
terms that the dust was "too rough for us to stay in it," and also stated that the
shavings and dust were piled up 3 to 3' feet deep around the molders and 2 or 3
inches around the trim saw.3
Among the witnesses called by Respondent, one-supply man, Greene-testified
that he had never before issued more masks than he did on the Friday and Saturday
in question, that he heard complaints from the men that it was hard to breathe, and
that he had never seen conditions any worse. The company officials called as
witnesses (Mathes, chairman of the board, Plant Superintendent Hardy, and Night
Superintendent Lewis) all agreed that the dust situation was highly unpleasant, and
at least equaled, if it did not exceed, the worst conditions theretofore experienced in
the plant.
Hugh McGaw, chief engineer of the industrial hygiene department of the Texas
State Department of Health, testified to two investigations which his department
conducted at the company plant at the request of the city health officer of Athens.
The first of these, conducted by McGaw personally, occurred approximately 1 week
before the events discussed above, and was made while the dust suction system was
in operation. The second test, conducted by a subordinate of McGaw, and the
subject of a written report which is in evidence, was conducted in January 1963.
At that time the suction system was shut down for 3 hours before the tests were
commenced, and the tests lasted about 1 hour. The testimony of Greene, a witness
called by Respondent, is that conditions were not as dusty on the occasion of the
January test as they had been at the time of the November walkout. Under these
circumstances, I find the testimony of McGaw to be credible, and I find the report
to be accurate as to conditions on January 7, but I do not regard it as accurately
reflecting conditions on November 24. I believe, however, that the report of the
January 7 test is entitled to some weight as a document prepared by a State official
in the course of discharging his official duties, and-as appears below-I am relying
on certain statements made therein.
McGaw testified that in measuring dust in the air, the Texas State Department of
Health was interested in, and measured, "invisible dust," the particles smaller than
10 microns, because it is this dust which gets into the lungs and causes damage.
2 McClure preferred a permanent type mask to the cloth "throwaways" and no new
filters were available for the former type. He testified that the men working with him
wore the cloth mask that night.
2 Dodds also testified that he told Lewis, after the walkout, that he could not take the
dust, and that Lewis replied • "Henry, I don't blame you a bit in the world. Hell, no,
I wouldn't work out there either." Although Lewis was not asked to, and did not, deny
having made such a statement to Dodds, the whole course of Lewis' conduct, and other
statements attributed to him, lead me to believe that Dodds must have misunderstood or
misrepresented Lewis' comments, and I do not credit that part of Dodds' testimony.
Cf. N.L R.B. v. Howell Chevrolet Company, 204 F. 2d 79, 86 (C.A. 9), affd. 346 U.S. 482.
CURTIS MATHES MANUFACTURING COMPANY 481
The larger particles of dust which are visible stop in the throat, the nose, and the
bronchial tubes, and are eventually spit up. At the time McGaw conducted the
first inspection, he found about 10 million particles of dust per cubic foot. The
second study, made when the dust removal machines had been shut down for
several hours, revealed no appreciable increase in the amount of dust smaller than
10 microns, although the atmosphere was considerably "dustier" in the sense that
visibility was less good. The figure of 10 million particles per cubic foot was well
below the 50 million figure which the State board of health has established as "a
standard in which a working man can work 8 hours a day, 40 hours a week, 50
weeks a year for a considerable portion of his life without harm." (The 50 mil-
lion figure applies to dust of the type involved here which McGaw termed "nuisance
dust" as distinguished from certain silica dusts where the safe limit is much lower.)
4. Concluding findings as to the walkout
The law is settled that employees who walk off the job en masse because of un-
pleasant working conditions are engaged in a concerted activity for mutual aid and
protection within the meaning of Section 7. N.L.R.B. v. Washington Aluminum
Company, Inc., 370 U.S. 9. The law appears equally settled, however, that where
such a walkout violates a no-strike clause in a contract, the statutory protection is
forfeited. Washington Aluminum, supra, at footnote 16. On the other hand, a walk-
out because of "abnormally dangerous conditions for work" does not violate a
no-strike clause. N.L.R.B. v. Knight Morley Corp., 251 F. 2d 753, 759 (C.A. 6),
cert. denied 357 U.S. 927. Finally, under ordinary equitable principles, it seems
clear that where management has approved or encouraged a walkout because of a
failure of plant equipment, management cannot be heard to say that the walkout is
in breach of a no-strike clause. The foregoing principles, in my judgment, control
this aspect of the case.
The contract between the Company and the Union contained a no-strike clause,4
and also a clause providing that "walking off the job by employee without permis-
sion shall be deemed as voluntary quitting." The contract by its terms was inap-
plicable to leadmen, who, however, are "employees" and not "supervisors" within
the meaning of the Act. Indeed, the Company makes no contention that the lead-
men are outside the scope of the Act, and the record is clear that the leadmen's
duties do not entail the performance of any of the functions set forth in Section
2(11) of the Act. See, e.g., N.L.R.B. v. Southern Bleachery & Print Works, Inc.,
257 F. 2d 235, 239 (C.A. 4), cert. denied 359 U.S. 911, and cases there cited. It
follows, therefore, that the leadmen who walked out because of the dust conditions
(McClure, McCall, and Poston) were within the protection of the Act as construed
in Washington Aluminum, and the Company violated Section 8(a)(1) in discharg-
ing them.
With respect to the other employees, I am constrained to find that the working
conditions at the time of the walkout, although highly unpleasant, cannot be deemed
"abnormally dangerous." The proof offered by General Counsel here does not
begin to approach that offered in Knight Morley, supra, or in Fruin-Colnon Con-
struction Co. and Utah Construction and Mining Co., 139 NLRB 894, or in Phila-
delphia Marine Trade Association and its members, 138 NLRB 737. I regard it
as significant, though not controlling, that less than 10 percent of the men walked
out, and none of these were from the sanding area where the dust was thickest.
Tests conducted by the State board of health indicated that the amount of dangerous
dust particles did not increase even after the suction system was shut down for
3 hours, thereby suggesting that the system is effective in removing the nondangerous
larger particles but has no appreciable effect on the smaller particles .5 Undoubtedly
the shutdown of the system caused discomfort in breathing , coughing , sneezing,
and spitting of dust, but the statute speaks in terms of danger rather than dis-
'The clause reads:
On behalf of itself and the employees covered by this Agreement, the Union agrees
that there shall be no strike or stoppage of work or secondary boycott or slow-down
of work or picketing or disturbance on the part of or on behalf of the employees
covered by this Agreement during the term of this Agreement. Any employee who
participates in or promotes a strike, work stoppage, picket line, slow-down, secondary
boycott, or disturbance, even of a momentary nature, may be discharged and only the
question of whether or not he did in fact participate in or promote such action shall
be subject to grievance procedure or arbitration.
5A similar conclusion is voiced by the author of the report on the January test, but as
he was not made available as a witness, I rely solely on his factual report made in the
discharge of his official duties, and not on his explanation for the conditions he reported.
734-070-64-vol. 145-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comforts The standard of danger might be different as applied to persons with
respiratory difficulties, but the evidence is undisputed that employees were excused
from work, even under normal conditions, if they reported in with a bad cold and
were therefore adversely affected by the dust. Finally, the preponderance of the
evidence does not establish that visibility was so reduced as to render the work
"abnormally dangerous," even with respect to the possible flying objects testified
to by McCall or the obscured pressure bar of which McClure spoke. I find that the
danger of being struck by flying objects was not appreciably increased as the visibility
near the machines where such objects might be thrown off was not sufficiently
impaired. and that Lewis' and Hardy's testimony establishes that the sliding out of
the pressure bar would not endanger the operator.
Although I find that the apparent breach of the no-strike clause 7 cannot be
justified under the "abnormally dangerous conditions" provision of the Act, I find that
at the time of the walkout the conduct of Foreman Price raised an estoppel against
the Company's reliance on the no-strike clause. Price was not only a part of the
Company's supervisory hierarchy, but was foreman over the rough mill area which
(along with the adjoining finish mill area) was involved in the walkout. Price
encouraged the walkout, and his encouragement of it was relayed by Leadman Poston
to other men. Under these circumstances the men who walked out may be said
to have acted, at least in part, in reliance on Price's approval. Where, as here, em-
ployees have good cause to believe that their action in leaving their posts has the
approval of a foreman, the Company is estopped from invoking the no-strike clause
against them 8 As to the Company's contention in its brief that.some employees had
vainly asked Price's superior, Acting Mill Superintendent Miller, for permission to
leave, it sufficies to note that the identity of those employees is not established on the
record, and hence there is no basis for finding that any of the men involved here knew
that Miller had refused permission to leave.
The employees who walked out and went home, therefore, cannot be said to have
violated the no-strike clause, and hence enjoyed the statutory protection normally
attendant on concerted activities. The employees who remained in the cafeteria,
however, heard Mathes, the actual head of the Company, in effect revoke the ap-
proval Price had given the walkout. At this point, those in attendance could no
longer claim that the Company approved their action,9 and indeed they saw and
heard Rainwater receive permission to return to work, a circumstance which em-
phasized that the Company viewed those who did not as having forfeited their em-
ployment status. I find, therefore, that the employees covered by the contract who
did not return to work after being made aware that the Company desired them to do
so must be viewed as employees on strike in breach of the no-strike clause, and hence
outside the protection of the Act. In sum, I find that the statutory protection in
this case extends only to the three leadmen not covered by the no-strike clause, and
to those other employees as to whom the Company is estopped from asserting the no-
strike clause, because they left the premises before Mathes in effect revoked the
approval which Foreman Price had given their walkout.
61 find that the men walked off the job in a good-faith belief that conditions were
dangerous to health But in Redwing Carriers, Inc and Rockana Carriers, Inc , 130 NLRB
1208, 1209, the Board indicated that the test of dangerous conditions is objective, not
subjective This rule places a heavy burden on employees, who must act without the
benefit of medical advice and whose choice places either their jobs or their health in
jeopardy. However. I am bound by the Redwing language. See also Fruin-Colnon Con-
struction Co. and Utah Construction and Mining Co , 139 NLRB 894, footnote 39
7 Quaere, whether a "no-strike" clause need be construed as covering a walkout because
of a temporary failure of equipment. Cf Mastro Plastses Corp , and French-American
Reeds Mfg Co , Inc. v. N L.R B., 350 U S 270, 279-284 The language of Section 502, as
well as Washington Aluminum, supra at footnote 16, and Knight Morley, supra, appear to
settle this adversely to the employees
8 Respondent also emphasizes the contractual provision that "walking off the job by an
employee without permission shall be deemed as voluntary quitting " I do not read this
clause as a clear and unmistakable waiver of employees' rights under Section 7 to act in
concert for mutual aid or protection In any event, as discussed above, the employees had
permission to walk off the job
8 of the settled rule that an employer, ordinarily liable for a foreman's coercive state-
ments, can disavow them and escape liability. H. J. Heinz Company v N L R B., 110 F 2d
843, 847 (C.A 6), affd 311 U S. 514, 521 ; North Carolina Finishing Company v. N L R.B.,
133 F 2d 714, 716 (C.A 4) ; N L R B. v Saxe-Glassman Shoe Corporation, 201 F. 2d 238,
242 (C.A. 1) , Time-C-Matic, Inc v. N.L R B., 264 F. 2d 96, 99-100 (CA. 7).
CURTIS MATHES MANUFACTURING COMPANY
III. THE REMEDY
483
I shall, of course, recommend that Respondent cease and desist from its unfair
labor practices, and that it give backpay under the formulas approved in Crossett
Lumber Company, 8 NLRB 440, and Isis Plumbing & Heating Co., 138 NLRB 716,
to the employees who were discriminated against. The identity of these employees
in addition to the three leadmen (i e., the identity of those who were not aware at
the time that Mathes revoked Price's approval of the walkout) may be left to deter-
mination in compliance negotiations or proceedings. Backpay will run from No-
vember 25, 1962, through the time reinstatement was offered approximately 3 weeks
later.
It is my considered recommendation that no notice should be required in this
case A notice has already been posted for 60 days covering the solicitation of
withdrawals and any other violation of Section 7 rights. I see no useful purpose
to be served in posting a notice explaining the reimbursement of leadmen who derive
this benefit because they are outside the contract, and the reimbursement of other
employees whose protection derives from the peculiar combination of circumstances
presented by this record.
CONCLUSIONS OF LAW
1. The Company, by systematically interrogating employees as to their desire to
retain union membership, and by encouraging their efforts to withdraw from the
Union, has engaged in an unfair labor practice affecting commerce within the
meaning of Sections 8(a) (1) and 2(6) and (7) of the Act.
2. The Company, by discharging the leadmen who left their workplaces because
of dust conditions on November 24, 1962, and who were not subject to the no-strike
clause, engaged in an unfair labor practice affecting commerce within the meaning
of Sections 8 (a) (1) and 2(6) and (7) of the Act
3. With respect to the other employees who similarly left their workplaces on that
occasion, the Company engaged in a similar unfair labor practice insofar as it dis-
charged any such employees who had left the plant prior to the time Chairman of
the Board Mathes revoked the express or implied approval which the Company,
through a foreman, had given the walkout.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent , Curtis Mathes
Manufacturing Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Systematically interrogating its employees as to their desire to retain member-
ship in a labor organization , and participating in their efforts to withdraw from such
membership.
(b) Discharging or otherwise discriminating against employees for engaging in
concerted activities for mutual aid and protection , provided that nothing in this
Order shall preclude appropriate action against employees who breach a no-strike
provision applicable to their employment , unless such provision has in effect been
waived by Respondent acting through supervisory employees.
2. Take the following affirmative action designed to effectuate the policies of the
Act
(a) Make whole the following employees in the manner set forth in the section
of the Intermediate Report entitled "The Remedy":
Jesse Poston, John McClure, Earl McCall , and also any other employees who
walked out because of dust conditions on November 24, 1962, and who left the
plant before Charles Mathes advised the employees in the cafeteria that he, in effect,
revoked any approval Foreman Price had theretofore given the walkout.
(b) Preserve and , upon 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
amounts of backpay and other sums due the employees under the terms thereof.
(c) Notify the Regional Director for the Sixteenth Region, in writing , within 20
days from the date of service of this Intermediate Report and Recommended Order,
what steps it has taken to comply therewith 10
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."