Enterprise Electric Works

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 246 (N.L.R.B. 1970)

246 DECISIONS OF NATIONAL
Enterprise Electric Works and Clare Mudge, Jr.
Case 19-CA-4191-2
June 10, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
On February 12, 1970, Trial Examiner Henry S.
Salim issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
filed exceptions to the Decision and a supporting
brief. The Respondent filed a brief in answer to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S . SAHM , Trial Examiner: Upon a charge
filed November 12, 1968, by Clare Mudge, Jr., an
individual, the complaint herein issued on July 31,
1969, alleging that Enterprise Electric Works,
herein referred to as the Respondent, violated Sec-
tion 8(a)(1) of the National Labor Relations Act,
' In agreeing with the Trial Examiner 's finding that the complaint should
be dismissed , we rely solely on the Trial Examiner 's finding that the
evidence fails to establish that Respondent in fact canceled employee
183 NLRB No. 30
LABOR RELATIONS BOARD
as amended, herein called the Act. The complaint
alleges that Respondent refused to rehire Clare
Mudge, Jr., because of Mudge's union activities and
by this act the Respondent has interfered with,
restrained, and coerced its employees in the exer-
cise of their rights guaranteed by Section 7 of the
Act. Respondent denies that it refused to rehire
Mudge, or that his inability to be hired was due to
the union activities described in the complaint, and
urges as affirmative defenses that Mudge's con-
certed activities were unprotected and that it did
not condone those activities, that it had no
knowledge of Mudge's desire to be rehired, and
that Mudge had engaged in a physical altercation
with a fellow employee immediately prior to the
termination of his last employment with the
Respondent. The parties appeared at a hearing held
in Anchorage, Alaska, on October 1 and 2, 1969,
and were afforded the opportunity to adduce
evidence, to examine and cross-examine witnesses,
to present oral argument, and to file briefs. Briefs
were filed by the parties and have been carefully
considered.
Upon the entire record, observation of the wit-
nesses and their demeanor while testifying, and
upon consideration of the briefs, there are made
the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Respondent has been at all times material herein
a California corporation engaged in electrical con-
tracting work at jobsites in California, Alaska, and
other States of the United States. In the course and
conduct of its business, Respondent annually per-
forms services valued in excess of $50,000 for
customers directly engaged in interstate commerce,
and annually purchases and causes to be trans-
ported to various jobsites goods and materials
valued in excess of $50,000 directly from States of
the United States other than the State in which the
jobsites are located. The complaint alleges, the
answer admits, and it is found that Respondent is
an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and it
is found that the labor organization involved is the
International Brotherhood of Electrical Workers,
Local 1547, AFL-CIO, herein referred to as the
Union or IBEW, Local 1547, which has been at all
material times herein a labor organization within
the meaning of Section 2(5) of the Act.
Mudge's dispatch Thus, in affirming the Trial Examiner , we do so only
because the evidence is insufficient to establish that Respondent denied
employment to Mudge or otherwise discriminated against him
ENTERPRISE ELECTRIC WORKS 247
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting
Mudge was first employed by Respondent in
1966 and worked intermittently on oil drilling
jobsites during 1966 and 1967 before the tour of
employment from July through October 1968, the
period out of which the issues in this litigation arise.
Mudge was employed by Respondent on prior oc-
casions (as he was from July to October 1968), as a
journeyman electrician and "inside wire man."
From the record it appears that Mudge's employ-
ment by Respondent was at all times in connection
with the installation of electric wiring during con-
struction of or to maintain offshore oil drilling rigs.
On the occasions of Mudge's previous employment
by Respondent, the electricians, including Mudge,
were housed on the drilling platforms under con-
struction in a manner similar to the manner in
which they were housed during the period here in
question or at quarters supplied by Respondent "on
shore."
During one tour of employment in 1966 Mudge
and another of Respondent's electricians engaged
in a fight after they had completed their day's work
and had returned to the onshore living quarters
supplied by Respondent. The fight had its incipient
stage aboard the oil drilling platform during work-
ing hours, but was postponed until later as one of
Respondent's job superintendents intervened on the
platform with a threat of dismissal. No disciplinary
action was taken against Mudge at the time of this
altercation which began on the platform and the
ensuing fight onshore which occurred on the par-
ticipants' own time. Mudge was hired subsequently
by Respondent for jobs through 1967 and 1968.
The tour of duty here in question spanned the
period from July 1968 to approximately October
25, 1968.1 In July Mudge was employed at Re-
spondent's onshore facility at Trading Bay,
Alaska. Mudge, along with several other electri-
cians who were working at Trading Bay, transferred
from that installation on September 15 to Re-
spondent's operation aboard an offshore drilling
platform which was being constructed in Cook In-
let, near Anchorage, Alaska, for Phillips Petroleum
Company by J. Ray McDermott & Co., Inc., the
prime contractor. Respondent, Enterprise Electric
Works, was the electrical subcontractor of J. Ray
McDermott & Co., Inc., the prime contractor to
Phillips Petroleum Company for the construction of
the drilling platform. A third contractor, Moran
Brothers, was also working on the platform in-
stalling drilling apparatus under direct contract to
Phillips Petroleum, the owner of the drilling plat-
form. Moran Brothers had no contractual relations
with either J. Ray McDermott & Co., Inc., or
Respondent, Enterprise Electric Works.
' All dates are 1968 unless otherwise indicated
Respondent was party to a collective-bargaining
contract with IBEW, Local 1547, the Union herein,
covering the electricians in its employ. The con-
tract provided, among other things, that:
1. There would be no work stoppages
whether by strike or lockout, because of
disputes over matters relating to the agree-
ment.
2. Where the employer furnished living
quarters "There shall be no more than four (4)
men housed in a tent or room, and each man
shall be allowed approximately 60 square feet
of floor area .... Only men under the terms of
this Agreement shall be housed together in
rooms or tents...."
Respondent admits that the housing terms of the
contract were not met as quarters were a good deal
more cramped than specified in the contract. How-
ever, it is uncontradicted in the record that the
Union knew that these conditions could not be met
on the Phillips' drilling platform and had "waived"
that contract provision as it had done in the past in
connection with facilities at other offshore drilling
platforms.
The Phillips' oil drilling platform is a four-tiered
structure which rests on steel legs driven into the
floor of Cook Inlet, located 30 to 35 miles out to
sea from Anchorage, Alaska. The four levels of the
platform are occupied exclusively by equipment
used to operate and maintain the drilling. "Per-
manent " living quarters are located on decks ex-
tended from the top tier of the platform and at-
tached to the four-tiered structure by means of
braces or girders. In addition to the "permanent"
quarters on these decks, additional living facilities
were provided aboard an oceangoing barge tied
alongside the oil drilling platform. During Sep-
tember and October Respondent's electricians lived
aboard trailers placed on the barge deck and in the
permanent facilities aboard the drilling platform.
The isolation of the platform and housing barge was
broken only by the twice daily, 3-hour commute of
a "crew boat" to and from Anchorage. The electri-
cians , including Mudge, worked at their trade
aboard the Phillips' platform 12 hours per day, 7
days a week.
B. First Walkoff
In mid-September when Mudge first was em-
ployed aboard the Phillips' platform, Moran
Brothers, which was under direct contract to Phil-
lips, was installing drilling equipment on the top
deck of the platform. This job called for a good
deal of work ordinarily performed by electricians.
Moran Brothers was not, at that time, licensed to
engage in electrical contracting in Alaska and was
apparently violating Alaskan state law by so doing.
In addition, Moran Brothers' electrical work was
being done, at least in part, by Moran's
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"roughnecks"2 and not be union electricians. The
record is obscure as to who, among Respondent's
employees, first discovered that Moran's employees
(who were under contract to Phillips to install
drilling apparatus), were doing electrical work. It is
clear, however, that at approximately 3:30 p.m., on
September 19, Fred Watwood, the Electricians
union steward, approached the management of
Respondent, aboard the platform, and warned of
trouble with his electricians if Moran Brothers con-
tinued to do electrical work with nonunion person-
nel. Hubert (Hub) Laurin, the job superintendent
for Respondent at that time, and a member of
Local 6, IBEW, San Francisco, testified that im-
mediately upon being informed by Watwood that
rumors were spreading among the crew that Moran
Brothers was using nonunion men, he went to Irwin
Manning, project engineer for J. Ray McDermott &
Co., Inc., the prime contractor, and warned him
that unless the nonunion people got off the plat-
form or unless union people were brought in to do
the work in question, Respondent's crew would
"probably" walk off the job. According to Laurin,
Respondent's superintendent, Manning told him
there was nothing he could do as J. Ray Mc-
Dermott & Co., Inc., had no contract with Moran
Bothers and that only Phillips Petroleum, the owner
of the platform, had "authority to tell Moran what
to do."3 Laurin then went to Phillips and was in-
formed by its representative that Phillips would not
dictate to Moran Brothers the method by which
Moran fulfilled its contract. Finally, at approxi-
mately 5 p.m., that same afternoon, Laurin went to
Moran, told its representatives what he had related
to McDermott and Phillips, and offered to do the
electrical work which Moran was doing in order to
avoid labor troubles. Laurin and another superin-
tendent of Respondent, James Young, whose father
is the owner of Respondent Enterprise, testified
that they had talked with Moran Brothers on prior
occasions about the possibility of Respondent's
contracting to do the electrical work here in
question. Respondent stood to profit by $20,000 if
this work had been awarded to it, Moran had
refused to award them a contract because Moran
claimed that the price of the drilling equipment,
which they paid the manufacturer, included instal-
lation of the equipment by the manufacturer, and
to hire Respondent to do the wiring would be to
pay for its installation twice. Laurin's offer was re-
jected and he was invited by Moran's officials to
"jump in the lake."
Immediately after his discussion with Moran
Brothers, Laurin met again with Watwood, the
Union's job steward, and reported his frustratingly
S "A casual term for an oil driller or other person who assists in oil
drilling work " Labor Dictionary, Casselman, Philosophical Library, p 404
a McDermott, the prime contractor, had awarded the electrical subcon-
tract to Respondent
' Launn 's version that the use of nonunion electricians was the sole
cause of the walkoff is credited It would appear from the contract that
futile and unsuccessful efforts to prevail upon
Moran Brothers not to use nonunion "roughneck"
labor to install electrical equipment. As Laurin was
truly on the horns of a dilemma, he asked Watwood
if he would gather all of Respondent's electricians
for a meeting with Laurin on a subdeck of the plat-
form.
At this meeting with Laurin, the electricians de-
cided that they would walk off the job in protest
against Moran's use of nonunion personnel. Mudge
testified at the hearing the reason for the walkoff
was not so much that the men doing electrical work
were nonunion, but by viture of their being non-
union they were unqualified to do electrical work
and posed a safety threat. Laurin, on the other
hand, testified that there was no mention of safety
at this meeting or in any other conversations he had
with Mudge and other union members that safety
was the reason for the walkout." Laurin also
testified he told the men that if they walked off the
job they would be engaging in a wildcat strike in
violation of the contract.' He also reminded them
that Enterprise, who had no control over Moran
Brothers, would be the innocent sufferer. The
opinion that the strike was not sanctioned by the
contract was shared by at least one union official
named Niemi, the dispatcher at the union hiring
hall, who in a radiophone conversation with Laurin
and Watwood immediately after the employees'
meeting and walkoff, said that the strike was illegal
and while he could not excuse the walkoff "if the
guys want to go fishing, I can't hold them back."
The result of the meeting was a unanimous deci-
sion of the 25-man crew to leave the platform and
to return to Anchorage to force the issue of
Moran's activities to a head. Only Watwood, the
union steward, at the request of Laurin, remained
on the platform in the event of an emergency. The
full crew, Laurin, and two of Respondent's foremen
left the platform at approximately 9 p.m., Sep-
tember 19 and arrived in Anchorage early the next
morning. Prior to his leaving the platform, Laurin,
Respondent's supervisor, put in a call to the Union
requesting 25 electrician replacements for the crew
which had walked off the job.
Immediately following the walkoff, Mudge, Lau-
rin, and Bob Johnston, a foreman for Respondent,
left the platform and checked in at the Captain
Cook Hotel in Anchorage where they shared the
same room on September 20 and 21. During this
period Mudge made phone calls to the news media
and Jess Harris, a member of the Alaska Legisla-
ture and Local 1547, to explain the situation on the
platform, to publicize the walkoff, and to request
that some action be taken against Moran Brothers.
were the men protesting safety conditions the walkoff may not have been in
violation of the contract and hence "protected " activity See Washington
Aluminum Co Inc , 370 U S 9 It is believed this safety factor was an af-
terthought of Mudge's to justify what was really a dispute bottomed on the
use of nonunion labor and it is so found
5 See section III, A, supra
ENTERPRISE ELECTRIC WORKS 249
During this period of time that the men were off
the job, Laurin met with Union Business Manager
Tom Hackett and it was agreed that all of those
who participated in the walkoff would be rehired.
Laurin, on a number of occasions in his testimony,
stressed his reluctance to discharge men, even
when a situation appeared to warrant firing them
because of a critical scarcity of electricians in
Alaska at that time. The dearth of electricians in
Alaska stands uncontroverted in the record. On
September 21 a group of 10 electricians, including
Mudge, returned to the platform ready to go back
to work.
C. Mudge's Fight and Second Walkoff
On September 21, when Mudge and nine other
electricians returned to the Phillips' platform from
their walkoff, Mudge discovered that Moran
Brothers' employees were still engaging in electrical
work with nonunion personnel. According to
Mudge's testimony, which is substantially in accord
with Laurin's, he then went to the radio shack.
There in the presence of Laurin and Jim Butcher, a
supervisor for J. Ray McDermott & Co., Inc., he
made a radiophone call again to Alaska Legislator
Jess Harris to explain that Moran was continuing to
do the electrical work which precipitated the Sep-
tember 19 walkout, and that some of the men
would not work and were returning to Anchorage.
After Harris was so notified, Mudge walked off
the job, collected his gear , placed it aboard the
crew boat, and was waiting in the boat to return to
Anchorage when he was accosted by A. C. Forbes,
a union member and one of two electricians,' who
along with Respondent's supervisory personnel had
decided not to walk off the job again but to remain
on the platform and work. According to Mudge's
testimony Forbes stood on the barge and "yelled
things" at Mudge who was in the crewboat prepar-
ing to return to Anchorage. The subject matter of
the "things" appears from the record to have in-
volved a "personal" matter regarding Forbes' claim
that Mudge owed him some money. Again, accord-
ing to Mudge's testimony, Mudge climbed out of
the boat onto the barge and threatened to "clobber
him one" if Forbes didn't "shut his mouth." Mudge
testified that Forbes "picked up a chain to strike
me with the chain, and I hit him." A bystander then
separated the combatants.
Laurin, who during this time was still in the radio
shack, hurried to the scene upon witnessing the
fisticuffs through the radio shack window. He fired
Forbes and ordered Mudge into the crewboat
which departed for Anchorage. Almost immediate-
ly thereafter, Laurin reinstated Forbes because, ac-
cording to Laurin, "it seemed kind of ridiculous" to
fire Forbes when there was no one whom he could
hire to replace him due to an acute lack of electri-
cians in Anchorage.'
D. The October 3rd Work Stoppage
On September 27, 6 days after the second walk-
off, Mudge was redispatched by the Union to
Respondent's job aboard the platform and was ac-
cepted for employment by Laurin, Respondent's
job superintendent.' On approximately October 2,
Laurin was replaced as superintendent by James
Young, Jr., who had returned from a business trip
to San Francisco. Young testified that upon his
return from San Francisco Laurin had apprised him
of the activities aboard the platform, including Lau-
rin's meeting with the employees eventuating in
their walkoff, and he showed Young clippings
which appeared in the local newspapers about
those activities. He was also informed by Laurin
that Mudge had had a fist fight with Forbes.
Upon their return to work on or about Sep-
tember 27, Respondent's electricians noticed that
Moran Brothers were continuing to perform the
work that caused the September 19 work stoppage.
Respondent's employees held several meetings with
Young to complain about the continuing Moran
situation. At some time prior to October 3, Moran
Brothers, due in part to Young's representations,
agreed to enter into a contract with Aurora Electric
Company, a union contractor, licensed to do elec-
trical work in Alaska. On October 3, when Aurora's
electricians arrived at the platform, they learned
that they were to do only a portion of the disputed
electrical work whereupon Aurora's union electri-
cians refused to go to work. When Respondent's
employees observed Aurora's electricians were
leaving the platform, they also stopped work.
Young then called a meeting of his electricians to
ascertain the reason for the work stoppage and
learned from them that they were dissatisfied with
the failure to resolve the Moran Brothers' situation.
They threatened to go again to the Union and to
the news media. Young went from this meeting to a
meeting he arranged with officials of Moran
Brothers, McDermott Company, and Phillips
Petroleum, at which meeting Moran promised to
obtain another union contractor to perform the
work in question. However, when Young suggested
that Moran award the contract to his Company,
Young testified that "the head man for Moran
Brothers told me that they would get a union con-
tractor, but it would not be us, because he was not
going to see any of our men doing this work that
started all this walk-out trouble." It was only after
Young reported to his disgruntled electricians that
the problem had been solved at this employers'
meeting that they agreed to resume work. This
work stoppage of October 3 lasted approximately 3
'See fn 8
' Corroborative of this lack of electricians is Respondent notifying the
Union on September 19 to dispatch electricians but it was not until Sep-
tember 28 that the Union was able to muster a full crew
9 The record shows that of the 25 men working for Respondent on the
platform on September 28, all but 8 had participated in the walkoff
250
hours.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Locking of the Radio Shack
The next day, October 4, Mudge went to the
radio shack , and in the immediate presence of the
McDermott barge captain and Manning, Mc-
Dermott's project engineer, he telephoned Harris,
the Alaska legislator , and reported that the "Moran
problem " had reoccurred .9 Shortly after this
radiophone conversation the door to the radio
shack was padlocked by the McDermott barge cap-
tain . When Mudge complained to Young , the latter
spoke to the captain of McDermott 's barge who
told Young the radio shack was locked because
Mudge was using the phone too much. Young
finally prevailed upon McDermott to remove the
padlock from the radio shack upon Young's as-
surance that the radiophone would not be used un-
reasonably.
F. Bunk Space Incident
Some time in October , after the incidents
described above , McDermott & Company, the
prime contractor , which provided the barge living
quarters , decided to move the barge to another lo-
cation . Before doing so , McDermott removed the
equipment and belongings of several electricians in-
cluding Mudge , who at the time was in Anchorage,
from their living quarters and reassigned the living
quarters to its welders . Mudge returned from
Anchorage to the platform to learn that he had
been transferred by McDermott to sleeping quar-
ters occupied by members of the pipefitters union.
When informed of this, Mudge complained to Wat-
wood , the union steward, who discussed Mudge's
grievance with Young . Young agreed to pay
Mudge's transportation to and from Anchorage if
Mudge felt he could not reside with persons em-
ployed in other crafts . Mudge agreed to accept
Young's offer to pay his transportation costs to and
from Anchorage so that he could live "on-shore,"
until such time as quarters were available on either
the barge or platform . When Mudge returned to
Anchorage that evening , he notified Hackett, the
Union 's business agent , that the contract provision
regarding housing was not being honored aboard
the Phillips ' platform.10
The next morning , when Mudge returned to the
platform from Anchorage , and there was still no liv-
ing quarters available, Mudge was asked by W at-
wood , the union steward , if he would agree to room
with the pipefitters until other arrangements could
be made . Mudge refused . The problem with regard
to Mudge 's housing was ultimately solved by Young
magnanimously agreeing to relinquish his quarters
to Mudge. Young thereupon moved into the
9 The record indicates that both ends of a radiophone conversation can
be heard by anyone in the radio shack
pipefitters ' quarters so that Mudge would not be
subjected to sleeping in the same room occupied by
members of the Pipefitters union.
G. Mudge 's Second Altercation
Mudge continued to work for Respondent until
October 25 . On that day , Mudge engaged in an ar-
gument with another electrician named Dion An-
derson , who called Mudge a "white ticket man."
This was reported by Mudge to Watwood, the
union job steward , who with Mudge then spoke to
Anderson. Instead of receiving an apology, Mudge
and Anderson then got into a fight . Mudge suffered
an injury to his ear and went below deck where he
told Superintendent Young of the fight . Mudge told
Young he needed medical attention and was return-
ing to Anchorage on the crew boat to see a doctor.
Young asked Mudge to wait until he spoke to An-
derson . Young then spoke to Anderson. He
received no staisfactory explanation from Ander-
son, whereupon Young fired Anderson. In the
meantime , unknown to Young , Mudge had left for
Anchorage in the crew boat with all of his be-
longings.
Later in the evening , after Mudge had left,
Young testified that he had a conversation with
Irwin Manning , project engineer for McDermott, in
which Manning told Young he was not going to
allow Mudge back on the platform because of
Mudge 's overuse of the radiophone , his fighting
with employees , and also Mudge had had a serious
argument with McDermott 's barge engineer. Young
testified that he told Manning , "I thought it best if
he leave the decision to us as to who we accept for
hire and not, as we are considered the qualified
personnel to make this sort of judgment ." Manning
agreed with Young . Young testified that the views
of McDermott 's officials , who had subcontracted
the electrical work to Respondent , were of necessi-
ty given considerable weight by him because:
Well, we were working for them . If they got
stern enough , or in the case of us loosing the
job or something like that , we would have to
work something out, but they always leave it
up to us to handle it for them.
The next day , October 26, Mudge called Young
from Anchorage and told him he would not be
returning to the platform.
H. The Canceled Order
There is considerable divergence of opinion
between Respondent 's witnesses and witnesses for
the General Counsel as to the sequence of events
on October 25, and thereafter , in connection with
Respondent 's order to the Union to dispatch elec-
tricians to the Phillips ' platform and whether there
10 The collective-bargaining agreement requires that electricians be
housed only with other electricians See Section 111, A
ENTERPRISE ELECTRIC WORKS 251
was a later cancellation of that request. According
to the testimony of Sells, the Union's dispatcher
(who fills in whenever the regular dispatcher is ab-
sent''), about 3:45 p.m., on Friday, October 25, he
received a phone call at the union hiring hall for
one electrician from someone who identified him-
self as being from Respondent Enterprise, and
within minutes he received another call for "three
more" men. Sells testified he did not fill Respond-
ent's order on October 25 because it was late in
the day and it was a Friday. He subsequently filled
the order on Monday, October 28.
Sells' testimony continues that sometime Monday
morning , October 28, Mudge stopped at the union
hall and Sells asked Mudge if he got down to his
name on the book would he be interested in taking
the Enterprise call for electricians and that Mudge
answered: "He'd have to think about it." Sells
testified that when Mudge returned to the union
hall that afternoon he agreed to accept the dispatch
to Respondent, and Mudge then left the union hall.
About 5 o'clock, the same afternoon, Sells
testified that he received a phone call from Respond-
ent but was unable to state who of Respondent's
personnel it was that called. Sells' testimony con-
tinues that this unidentified person asked him if
Mudge was one of the electricians who would be
dispatched to fill Respondent's call for men. Sells
stated that when he answered affirmatively, he was
told by this unidentified caller that Mudge "was not
acceptable." He requested the caller to state the
reason for his nonacceptance and to put it in letter
form and forward it to the Union, because, testified
Sells, "It is unusual to have someone call in and
cancel a person's name." The usual procedure,
testified Sells, is "for the man to appear on the job
if he had a dispatch and [for the employer] to refuse
to accept him. 1112 Sells continued that the employer
need not give a reason for refusing to accept the
man.
Sells testified that "either in the morning or after-
noon " of October 29 he informed Mudge that
Respondent had canceled its call for him. The fol-
lowing day, Wednesday, October 30, Mudge
testified he spoke to Hackett, the Union' s business
manager , and, at Mudge's request, Hackett called
Young, and asked Young "as a personal favor" to
accept Mudge. Young told Hackett, according to
Mudge, that he had no objections to Mudge "com-
ing back" but that Manning , McDermott's official,
did not want Mudge on the drilling platform
premises . Mudge did not return to the platform.
1. Analysis and Conclusions
The General Counsel contends that Mudge was
not rehired because of his protected activities
aboard the Phillips ' platform . The General Counsel
argues that even if some of the conduct which
formed the reason for Mudge 's failure to be rehired
were unprotected and valid cause for discharge that
these activities were condoned by Respondent, and,
therefore , could not be a legal basis for its refusal
to rehire him. The General Counsel contends that
the doctrine of condonation should be applied to
the present case on the theory that Respondent
condoned Mudge 's activities and conduct which oc-
curred at various times between September 19 and
October 3 , specifically through its agreement with
the Union , its rehire of Mudge, and its failure to
take prompt disciplinary measures against him for
his role in these activities. The General Counsel has
further urged that Respondent later took advantage
of Mudge 's fight with Anderson to visit reprisal on
Mudge for the activities it had previously con-
doned , namely his leadership in the wildcat strikes,
the object of which was to bring direct and indirect
pressure upon Moran Brothers to cease using nonu-
nion personnel to do its electrical work.
The Respondent urges first that it had no
knowledge that Mudge was to be redispatched to
the Phillips ' platform ; and, second, that Mudge
voluntarily refused to go back to the Phillips' plat-
form until he had talked with union official
Hackett, and, therefore, forfeited his October 29
dispatch . Third, Respondent urges that Mudge's re-
peated acts of misconduct were grounds for his
discharge; and finally , even if it were found that
Mudge was refused rehire because of his concerted
activities that special conditions prevailed, includ-
ing his gross misconduct, which removed the facts
of this case from consideration as a "normal" case
in which the concept of condonation applies.
The resolution of the issues in this proceeding de-
pends then upon two questions : What was Re-
spondent ' s reason for refusing to rehire Mudge,
and, whether that reason was good cause under the
Act?
It would appear that an employer can neither
refuse to rehire an employee because he had en-
gaged in unprotected activity , which the employer
condoned , nor can he thereafter rely on that unpro-
tected activity as cause for discharge . 13 This doc-
trine of condonation appears to be one of estoppel
created by the condonation which elevates
erstwhile unprotected activity to the level of pro-
tected activity . The reason for this doctrine is to
promote peaceful settlements of strikes; that is, to
preclude reprisals after the employer has
misleadingly agreed to return its employees to work
from an unprotected strike and then taking discipli-
nary action for something apparently forgiven.t4
"Where ... misconduct is clearly shown, condona-
" Sells testified he has done this about "a month a year for the last three
years
12 The parties ' collective -bargaining agreement provides that in hiring
electricians the employer shall have the right to reject any applicant for
employment
11 American River Constructors , 163 NLRB 55 I , Alabama Marble Com-
pony, 83 NLRB 1047. See also Brantly Helicopter Corporation, 135 NLRB
1412, Poloron Products of Indiana, Inc., 177 NLRB 435
" Packers Hide Association , Inc. v N.L R.B, 360 F.2d 59, 62-63 (C A
8), which the Board cites approvingly in American River Constructors,
supra, p 552
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion may not be lightly presumed from mere silence
or equivocal statements, but must clearly appear
from some positive act by an employer indicating
forgiveness and an intention of treating the guilty
employees as if their misconduct had not oc-
curred."15 Condonation is a question of fact and a
determination of whether an employer has forgiven
unprotected activity of his employees requires an
evaluation of all the relevant conduct. Condonation
indcates an employer's willingness to "wipe the
slate clean" and to continue voluntarily the em-
ployer-employee relationship notwithstanding the
fact that it was at one point terminated because of
such events.ts
In Poloron Products of Indiana, Inc.," the em-
ployees walked out in violation of a no-strike
clause. The Board held that the employer did not
violate the Act when he discharged these em-
ployees who took part in an admittedly unprotected
strike in violation of the contractual no-strike
provision, even though other employees who par-
ticipated in the strike were merely suspended,
whereas those employees who were discharged
were those who had led an earlier strike less than 3
weeks before. The Board stated that prior con-
doned activities could be taken into account by an
employer in determining the degree of discipline to
be administered when later unprotected activities
occurred. In the Poloron case harsher discipline was
visited on unprotected strikers who had previously
engaged in an unprotected but condoned walkout
than was meted out to strikers who had not en-
gaged in the prior unprotected walkoff. The
Board's rationale was as follows: Although the em-
ployer had "condoned" the earlier strike by agree-
ing to reinstate all strikers and to visit no reprisals
upon them, the employees for their part impliedly
agreed to remain at work for a reasonable period
and not to walk out in the immediate future for a
similar cause, and the employees reneged on this
agreement when they participated in the second
walkout. Thus, the Board concluded tha the em-
ployees who again walked out following the em-
ployer's condonation of the first walkout could not
rely on the condonation of the prior walkout to
render illegal the employer's action in harsher
discipline in the latter walkout. The fact that the
employer condoned the prior walkout by entering
into a settlement promising that there would be no
reprisals and that all the strikers in the first walkout
would be reinstated, concluded the Board, did not
render the employer's action illegal since the
discharged employees reneged on their part of the
settlement by participating in the second walkout,
and the policy of favoring settlements, which is the
" Plasti-Line, Inc v N.L R B , 278 F 2d 482, 487 (C A 6), N L R.B v.
Marshall Car Wheel and Foundry Co of Marshall, Texas, inc , 218 F 2d 409
(C A 5)
16 M Esk,n & Son, 135 NLRB 666, 667
it 177 NLRB 435
` s See Trial Examiner Silberman 's scholarly dissertation regarding the
heart of the condonation doctrine, requires more
than just the temporary abandonment of an unlaw-
ful activity.18
The facts adduced at the hearing undercut the
General Counsel's position because he had failed to
show any right protected by the Act was violated by
Respondent. First, the General Counsel has not
sustained his burden of proving that the so-called
"condoned activities" were the Respondent's
reasons for allegedly refusing to rehire Mudge.
Second, under the circumstances extant in the
Alaskan labor market at the time of the walkouts,
namely, an acute shortage of available electricians,
it is a reasonable inference that Respondent had no
other choice than to "condone" the strike activi-
ties. To not consider this cogent circumstance,
would be equivalent to ignoring the realities of
Alaskan industrial conditions which are glaringly
manifested in this record. Third, the General Coun-
sel failed to meet his burden of proof that it was
Respondent who refused to rehire Mudge. Finally,
it appears that neither the concept underlying the
doctrine of condonation nor the policies of the Act
would be furthered by the use of that doctrine to
find an unfair labor practice in this case.
It is clear from the entire record, particularly the
escapades of Mudge outlined above, that there is
neither condonation nor a causal relationship
between Mudge's unprotected conduct and his
failure to be reemployed by the Respondent Em-
ployer. Then too, the situation here involved in-
cludes, inter alia, wildcat strikes in breach of con-
tract. There was no voluntary waiver so as to
preclude or estop Respondent in view of the cogent
circumstances and facts of industrial life peculiar to
this case, namely, an acute lack of electricians
available in Alaska, which be stress of circum-
stances compelled Respondent to disregard em-
ployees' derelictions because, as Respondent's su-
F erintendent explained, "it seemed kind of ridicu-
ous to fire" an electrician when there were no
replacements in Alaska.19 To hold otherwise, in the
context of Mudge's provocations, would reward
him and penalize Respondent and be contrary to
the spirit and purposes of the Act rather than
promote industrial peace, as well as the best in-
terests of labor-management relations.20
Respondent asserts in the context of Mudge's
role in the wildcat strikes of September 19 and Oc-
tober 3, there must be considered Mudge's abrasive
conduct which incurred not only the antipathy of
the employers (other than Respondent), who were
working on the platform, but also the enmity of
some of his own fellow union members who worked
with him. In fact, Respondent exhibited the prover-
lack of clarity with respect to the existing law on " condonation" in his
recent decision in 4Needham Packing Company, Case 9-CA-9415, and his
critique of a decision on this subject issued by Trial Examiner Summers
" See Section 111, C and I, and fn 7
Y0 Cf Packers Hide Association v N L R B , supra, p 63
ENTERPRISE ELECTRIC WORKS 253
bial patience of Job, as witness, Laurin's attempts
to coddle and mollify Mudge. It would appear,
therefore, that Respondent went about as far with
Mudge as any reasonable employer is required to
go even though Mudge provoked both Laurin and
Young to the limits of their endurance. Laurin
chose to stay in the same hotel room with Mudge
during the September 19 wildcat strike and he took
Mudge back after that walkout and also after a
fight with Forbes, another electrician.
Moreover, Young endured Mudge's part in the il-
legal strike of October 3 which may or may not
have cost the Respondent a contract which Young
estimated would have brought a $20,000 profit to
the Respondent. Yet immediately after this Young
took Mudge's part when the radio shack was locked
because of Mudge's numerous calls to the Union,
Alaska Legislator Harris and the news media, and
successfully interceded with McDermott to remove
the padlock from the radio shack. Still later, Young
not only offered to pay Mudge's transportation to
and from Anchorage to assure Mudge that he
would not have to sleep aboard the platform in the
same room with members of the Pipefitters Union,
but he also had to eventually turn over his own
sleeping quarters to Mudge in order to placate him.
Finally, Mudge was involved in yet another fight
on October 25 with a fellow union member. That
night Young was pressured by Manning, an official
of McDermott & Company, not to allow Mudge
back on the platform because of his constant
fighting. Manning also related to Young Mudge's
contentious attitude in an argument between
Mudge and a McDermott supervisor. It seems more
credible that the cumulative effect of all these
events, occurring in a period of barely more than a
month, capped by the fights and their aftermath on
October 25, finally convinced Respondent to for-
bear no more when it realized Mudge's conduct
was so disruptful of its operational procedures that
it exceeded the permissible limits of concerted ac-
tivity so as to cause its efficiency to be impaired.
Such conduct cannot be transformed into "pro-
tected activity" so as to give sanctuary to one en-
veloping himself in the cloak of his union, particu-
larly so, where his labor organization might view its
member's zeal with a baleful eye.
Respondent's position was a delicate one. It had
to deal gingerly with Phillips Petroleum Company,
the owner of the drilling platform, and Phillips' sub-
contractor, Moran Brothers, along with Respond-
ent's prime contractor, McDermott & Company,
all within the close confines of the drilling platform,
as well as maintaining the morale of its electricians
living in admittedly cramped quarters and who
worked 12 hours a day, 7 days a week. Also, during
that short period from September 15 to October
25, Respondent found itself on the horns of a
dilemma in protecting Mudge from other employers
with which it wished to maintain friendly relations
and from Mudge's fellow workers and brother
union members. Commonsense dictates that
Respondent is not to be held guilty of committing
an unfair labor practice for its alleged failure to
rehire Mudge under such extenuating circum-
stances. For the reasons stated below, it is found
that Respondent neither refused to rehire Mudge
nor infringed upon any right of his which is pro-
tected by the Act.
The concept of the term "condonation" implies a
voluntary choice. The record in this proceeding
reflects the hesitancy of Respondent's supervisors
to fire others of its employees when it would appear
there was good and sufficiently valid cause. The
reason for this hesitancy was due to there being
such a shortage of labor generally in Alaska, and of
electricians particularly, and that to discharge a
man hurt no one but the firm doing the firing in
that the dischargee's services were so in demand by
other employers. This shortage, which is uncon-
troverted, was testified to by both Laurin and
Young and formed the basis of Laurin's decision
not to fire Forbes on September 21. Nor is it inap-
propriate to take official notice of the fact that
wages in Alaska are exceedingly high, in part, in an
effort to obtain skilled labor to go there.
Furthermore, the doctrine of condonation has as
its underlying objective the promotion of peaceful
settlement of strikes by precluding an employer
from later reneging on his promise that he will not
take reprisals if the men will return to work. It
would appear that Respondent lived up to its bar-
gain to reinstate all the employees engaged in the
unprotected September 19 walkoff. Mudge was a
beneficiary of that offer. Because Mudge had en-
gaged in fights with fellow employees and was a
source of discomfort and embarrassment to
Respondent in its relations with the other em-
ployers, it would seem that there would have to be
a strong showing that Respondent took its action
because of the "condoned" strike activity as al-
leged by the General Counsel. This might have
been shown by reference to threats to or reprisals
against others who took part in or, perhaps, led the
wildcat strike. If this were shown, it would then
seem at least, arguable that the actions of Respond-
ent with regard to Mudge were within the area of
activities to be remedied by implementation of the
condonation doctrine . However, there is nothing in
the record to indicate that Respondent bore a
grudge against anyone arising specifically from the
alleged "condoned" activities. Rather it would ap-
pear that Respondent's feelings with regard to
Mudge should be characterized as a generalized ex-
asperation at finding itself in almost continous tur-
moil because of Mudge's fights and other extracur-
ricular activities.
As stated above, the record is replete with
evidence showing that Mudge was so contentious
and disruptive of Respondent's operations to the
point of being intolerable that he provoked Re-
spondent's officials to the limits of their endurance.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conduct disruptive of management procedures that
exceeds the permissible limits of concerted activity
and which results in the employer's operational effi-
ciency being impaired cannot be transformed into
"protected activity" merely because the alleged dis-
criminatee happens to be a union member.21 In
fact, if Mudge had been discharged for such con-
duct as is detailed above, there would be no viola-
tion of the Act.22 A fortiori, there can be no in-
ference of a discriminatory motive under the cir-
cumstances revealed by the facts in this case.
There is no evidence of union animus or that the
refusal to rehire Mudge, as alleged in the complaint
(which is contrary to the finding made below), was
discriminatorily motivated. Discrimination presup-
poses or implies disparate treatment. Moreover,
there is no evidence of unlawful discrimination
because General Counsel has failed to disprove, by
a preponderance of the of the credible evidence,
Young's denial that it was any duly authorized
representative of Respondent who told the union
dispatcher that Mudge was not acceptable. The
only evidence produced by the General Counsel is
that some unidentified caller telephoned the union
hiring hall but no probative or substantial evidence
was adduced to show that this call came from the
Respondent. In fact, Sells, the temporary union
dispatcher, testified that: "It is unusual for someone
to call in and cancel a person's name" and that is
why he made the request of this unidentified caller
to state the reasons for his nonacceptance of
Mudge and to put it in written form and mail it to
the Union. Such evidence does not even raise a
suspicion that this telephone call came from the
Respondent. Accordingly, the General Counsel has
not shown by a preponderance of the credible and
probative evidence that there is any basis for the al-
legation that Respondent discriminatorily refused
to hire Mudge. Per contra, the credible testimony
shows that Respondent's denial that it ever can-
celed its request to the Union for electricians stands
uncontradicted by any probative evidence.
Finally, there is no evidence in the record to
show that Respondent's dealings with the Union
were anything other than amicable. Therefore, the
trier of these facts is unable to see where the
testimony adduced by the General Counsel attains
the stature of even suspicion, let alone an unfair
labor practice. Under these circumstances, it is dif-
ficult to perceive, upon the evidence elicited at the
hearing, the basis for the General Counsel's allega-
tions in the complaint that the Respondent can-
celed a request that the Union dispatch electricians
to the Phillips' project upon learning that Mudge
was among those to be dispatched and thereby
refused to rehire him.
Then too, the Board has repeatedly dismissed un-
fair labor practice allegations on the ground that
the Charging Party has failed to exhaust his
remedies under the grievance procedures
established by a collective-bargaining contract.23
General Counsel's Exhibit 2, page 13 of the collec-
tive-bargaining agreement, executed by the
Respondent and Union, provides for such a
grievance procedure. It would appear that the adju-
dication of the complaint herein should be
eschewed in deference to the grievance procedure
to which the Union and Respondent Employer have
contractually obligated themselves to adhere to in
Section 4.2 where it is provided that "All
grievances or questions in dispute shall be adjusted
by the duly authorized representatives of both
parties to this Agreement." Moreover, to adju-
dicate this dispute might be tantamount to an
oblique vitiation of the grievance procedure itself in
that it would serve as a rallying point as well as an
alternative forum for litigants who would be en-
couraged thereby to fit another arrow to their bow
by concurrent recourse to Board processes rather
than adhering to the contractually agreed-upon
grievance procedures. Furthermore, if the parties
are required first to exhaust their rights under the
grievance procedures, as a condition of obtaining a
Board determination, this might eventuate, in many
instances, in the aborting of incipient unfair labor
practice proceedings. Finally, a decision obtained
through the utilization of such machinery would
have resolved the matter complained of in a
manner compatible with the purposes of the Act. It
would seem, therefore, and the Board has so held,
that if the dispute is referable to the agreed-upon
grievance machinery, a charge or complaint should
not issue until that procedure has been exhausted.24
"In these circumstances [it is] believe[d] that the
policy of promoting industrial peace and stability
through collective bargaining warrants deferring
the matter to the procedures that the parties them-
selves have voluntarily established under binding
commitment. "25
It is the Trial Examiner's judgment that no right
protected by the Act has been infringed upon by
Respondent. Moreover, no union animus has been
" Midwestern Instruments , Inc., 131 NLRB 1026. Cf. N L R B. v
Jones Sausage Company, 257 F 2d 878, 881 (C A 4)
re B B Crystal Company, 70 NLRB 985 Cf Arlan 's Department Store of
Michigan , Inc , 1133 NLRB 802
' Consolidated Aircraft Corporation, 47 NLRB 694, 706, Retail Clerks In-
ternational Association (Food Employer's Counsel), 125, NLRB 984, 1002,
McDonnell Aircraft Corporation, 109 NLRB 930, 934-935, Morton Salt
Company, 119 NLRB 1402, 1403 Midland Broadcasting Co, 93 NLRB
455, 457, Local 905 of the Retail Clerks International Association (A-1
Photo Service), 83 NLRB 564, 568, fn 11 Cf Textile Workers Union of
America v Lincoln Mills , 353 U S 448, United Steelworkers v American
Mfg Co , 363 U S 564 See also Title 11, Section 203(d) of the Act and Na-
tional Dairy Products Corporation, 126 NLRB 434, 435
2' Croan Zellerbach Corporation, 95 NLRB 753, United Telephone Com-
pany of the West, 112 NLRB 779, 781, McDonnell Aircraft Corporation,
supra, and Consolidated Aircraft Corporation, supra The Supreme Court in
1939 ruled that an employer need not offer reinstatement to employees
who struck in violation of their contract because such a strike is unpro-
tected where the collective -bargaining agreement provides there shall be
no strike until the grievance procedure is exhausted N L R B v Sands
Manufacturing Co , 306 U S 332 See G C Exit 2, Sec 3 10, p 10, which
the Union did not abide by when the "wildcat" strikes occurred
25 Concurring opinion in Navajo Freight Lines, Inc , 180 NLRB 516 See
International Harvester Co, (Indianapolis Works) 138 NLRB 923,927
ENTERPRISE ELECTRIC WORKS
shown and nor has the General Counsel shown that
it was Respondent who refused to accept Mudge.
Accordingly, it is found Mudge's inability to be
rehired was due to no illegal conduct on Respon-
dent 's part nor was there any interference,
restraint , or coercion within the meaning of Section
8(a)(1) with respect to the free exercise of rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Enterprise Electric Works , the Respondent, is
an employer within the meaning of Section 2(2),
255
( 6), and (7) of the Act.
2. IBEW , Local 1547, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act
as alleged in the complaint , nor has it engaged in
any other unfair labor practices.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety.