Fruin-Colnon Construction Co.

National Labor Relations Board - Board Decisions

Nov 13, 1962

139 N.L.R.B. 894 (N.L.R.B. 1962)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fruin-Colnon Construction Co. and Utah Construction and Min-
ing Co. and Loren Galey, Jr. Case No. 14-CA-2685. November
13, 1962
DECISION AND ORDER
On June 20, 1962, Trial Examiner Samuel Ross issued his Inter-
mediate 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 Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.'
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner 2
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner .3
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order.
'As the record, including the exceptions and brief , adequately presents the issues and
positions of the parties, the request for oral argument by the Respondent is denied
2 Interest at the rate of 6 percent per annum shall be added to the backpay to be com-
puted in the manner set forth in Isis Plumbing it Heating Co, 138 NLRB 716 Member
Leedom, however, for the reasons stated in the dissent in the aforementioned case, would
not grant such interest.
Immediately below the signature in the notice , the following is to be added:
NOTE-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
The penultimate paragraph in the notice is amended to read: "This notice must remain
posted for 60 consecutive days from the date of posting . . "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed by Loren Galey , Jr., an individual,
on December 26, 1961, the General Counsel of the National Labor Relations Board
issued a complaint dated February 8, 1962, alleging that Fruin-Colnon Construction
Co. and Utah Construction and Mining Co.,' a joint venture (herein collectively
called the Company or the Respondent), had engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and ( 3) of the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519), herein called the
Act. In substance , the complaint alleges that on or about November 8, 1961,
'The name Utah Construction Co , in the caption as it originally appeared in the com-
plaint, was corrected with the consent of Respondent to read as it now appears above.
139 NLRB No. 69.
FRUIN-COLNON CONSTRUCTION CO., ETC. 895
Respondent discharged and has refused to reinstate four employees 2 because they
had protested about working conditions and had engaged in union and other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection. The Respondent has filed an answer denying the substantive allegations
of the complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross
in Farmington, Missouri, on April 2, 3, 4, and 5, 1962. All parties were repre-
sented at the hearing by counsel and were afforded full opportunity to be heard, to
introduce evidence, to examine and cross-examine witnesses, to present oral argu-
ment, and to submit briefs. On May 16, 1962, briefs were received from the Gen-
eral Counsel and Respondent, which I have carefully considered.
Upon the entire record in the case, and from my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Fruin-Colnon Construction Co., a Missouri corporation whose principal office
is in St. Louis, Missouri, and Utah Construction and Mining Co., a Delaware cor-
poration whose principal office is in San Francisco, California, are both engaged
in the business of building and constructing commercial and other facilities and
projects in several States of the United States. The two are currently engaged as
joint venturers in the construction of a hydroelectric project for the Union Electric
Company of Missouri (herein called Union Electric), known as the Taum Sauk
pump storage hydroelectric project near Lesterville, Missouri. In connection with
the construction of said project, during 1961, the joint venture purchased, transferred,
and delivered to the State of Missouri from other States of the United Sates, goods
and materials valued in excess of $50,000. Upon the foregoing admitted facts, I
find and conclude that the joint venture is engaged in interstate commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 916, International Hod Carriers, Building and Common Laborers Union,
AFL-CIO (herein called the Union), affiliated with Eastern Missouri Laborers' Dis-
trict Council, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues presented
This case arises out of a work stoppage by four of Respondent's employees because
of alleged abnormally dangerous working conditions within the meaning of Section
502 of the Act. The employees involved were subject to a collective-bargaining
agreement between the Respondent and the Union containing, inter alia, a no-strike,
no-lockout clause. The issues presented are: (1) whether the conditions which
caused the four employees to stop work constituted abnormally dangerous working
conditions within the meaning of Section 502; (2) whether the work stoppage was
engaged in "good faith" within the meaning of that section; (3) whether Respondent
discharged and/or refused to reinstate the four employees because of their work
stoppage or merely hired permanent replacement for them; and (4) whether, under
all the circumstances, the discharge, refusal to reinstate, and/or replacement of
the four employees for engaging in such work stoppage violated Section 8(a),(1) and
(3) of the Act.
B. Background
1. A general description of the Respondent's project for Union Electric
As more fully described in a magazine article entitled "Union's Kilowatt Ware-
house," 3 the Respondent is engaged in the construction of a facility to provide
Union Electric with 350,000 kilowatts of additional power during periods of peak
daytime demand. When the project is completed, this objective will be accom-
plished daily by utilizing Union Electric's excess and otherwise unused nighttime
power capacity to pump water from a reservoir near the bottom of the Proffit Moun-
tain through a tunnel and shaft in the mountain to a reservoir at its summit, and by
2 Loren Galey, Jr., Jonathon Bess, Melvin Upchurch, and Abe Lanham, Jr.
8 Respondent's Exhibit No. 2.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reversing the process at peak demand periods, utilizing gravity and water pressure
to drain the water from the upper reservoir through the shaft and tunnel to actuate
turbines and generate electricity . The construction of this facility involved, inter
alia, the boring and blasting of a tunnel through the bottom of the mountain 6,500
feet long and from 18 1/2 to 25 1/2 feet in diameter , the blasting of a shaft 450 feet
deep and 27 feet in diameter to connect the top of the mountain with the tunnel, and
the concurrent construction of a reservoir at the summit by leveling the mountain
top and using the fill thus obtained to build a dike about 84 feet high around a
surface area of 55 acres to eventually impound 1 , 500,000 gallons of water.
2. A description of the sinking of the shaft through the mountain
The particular part of the project on which the four alleged discriminatees were
engaged when they stopped work was the sinking of a shaft 450 feet deep and 27
feet in diameter to connect with the tunnel which already had been bored through
the bottom of the mountain . The shaft sinking consisted of three operations, two
of which had been completed , and the third in progress , when the work stoppage
occurred . The first stage had been the drilling of a hole 6 inches in diameter
from the top of the mountain to the tunnel below through the red granite of which
the mountain is almost entirely composed . The second stage previously performed
had been the drilling and blasting of a pilot hole or raise , approximately square in
shape, and varying from about 8 to 12 feet in diameter , from the tunnel upward to
the top of the mountain , by a crew of miners, including at least one of the alleged
discriminatees ,4 who worked from the top platform of a cage attached to a crane
or hoist on the top of the mountain which raised and lowered the cage from the floor
of the tunnel to the area where the miners drilled and charged holes for blasting.
The third and final phase of the shaft sinking was to enlarge the pilot hole or raise
to a diameter of 27 feet working downward from the top of the mountain. The
work involved was to drill holes through the granite to a depth of 6 to 8 feet,
charge the drilled holes with dynamite , blast the charges , and blow down into
the tunnel through the pilot hole with high pressure air hoses , whatever loose rock
that had not already so fallen by the force of the explosion . In addition, for the
first 100 feet from the top , the miners also drilled holes into the sides or ribs of
the widened shaft, installed rock bolts in such holes, and hung anchor fencing on
the bolts. To this fencing , a subcontractor of Respondent applied gunite, a con-
crete mixture , by air pressure . The bottom level of the fencing and gunite was
generally maintained about 300 feet above the current depth of the shaft. While
the gunite was being applied , the shaft miners were assigned to work in the tunnel.
Each blast or round of dynamite generally lowered the shaft about 8 feet. The
holes for blasting were so drilled that the floor of the shaft sloped downward from
the outer perimeters of the shaft toward the pilot hole which was close to one wall
of the widened shaft, thus causing most of the blasted rock to fall naturally with
each shot through the hole into the tunnel .5 The grade of the slope was about 35°
to 45 °. When the floor of the shaft became too far below the mouth of the shaft
to be reached by ladders , the Respondent constructed a large cage , sometimes called
a jumbo in the record , to lower the miners and their equipment to the area of work.
The cage was about 10 feet high and hexagonal in shape. The upper deck was
constructed of steel plate , about 17 feet wide and had an iron handrail about 21/2
feet high set in about 1 or 2 feet from its outer edges. The lower deck, also
hexagonal in shape was slightly narrower than the top e Half of the bottom was
covered with woven steel wire , and the other half was uncovered except for a few
unfastened wooden planks which the miners used to stand on when they were work-
ing on the narrow portion of the shaft near the pilot hole. The crew usually rode
on the top deck of the cage , and their equipment was generally carried on the portion
of the lower deck which was covered by wire. A wooden ladder , attached to the
top deck by rope, and unattached at the bottom , was used to get down from the
cage to the floor of the shaft and vice versa. When the cage reached the bottom
of the shaft , the men would unload their equipment from the bottom of the cage,
and then manually position the cage above the pilot hole to minimize the danger of
falling into it. However , since the pilot hole was somewhat square in shape, and
the cage hexagonal , there were some open spaces of about 3 feet between the outer
edge of the bottom of the cage and the sides of the pilot hole.?
4 Another had worked only a short time on this phase of the project
Other crews removed the fallen rock from the tunnel
e Each side of the hexagon was 10 feet long
7 This latter finding is based on the uncontroverted and credited testimony of Abe
Lanham, Jr , one of the alleged discriminatees
FRUIN-COLNON CONSTRUCTION CO., ETC. 897
Work in the shaft was performed on three shifts, each day, from 7 a.m. to 3 p.m.,
from 3 to 11 p.m., and from 11 p.m. to 7 a.m. The shifts alternated every 2 weeks.
3. The construction of the upper reservoir
As noted above, concurrently with the shaft-sinking operation just described,
Respondent was also engaged in the construction of a reservoir at the top of the
mountain. This entailed the erection of a dike or wall of rock and soil, about 84
feet high, 25 feet wide at the top, and more than 100 feet wide at the base, to com-
pletely enclose an area of about 55 acres .8 The material used to erect this dike was
obtained by leveling the top of the mountain. Large Euclid trucks dumped the
rock and soil along the course of the dike or levee, and as its height increased, the
trucks used a 25-foot wide road at the top of the dike from which to dump their
loads Each truck carried a load of 17 cubic yards of rock and dirt, including many
large boulders,9 and one such truckload was dumped every 2 to 3 minutes. While
the loads were being dumped and between loads, two sluicing monitors compacted
the dike by continuously sluicing the dumped material with water flowing at the rate
of 1200 gallons per minute at 160 pounds of pressure. Much of this water was
recaptured by a ditch expressly provided to permit its reuse . Some however seeped
into the ground and followed natural faults in the earth to other outlets.
As work on the dike progressed, its course brought it in close proximity to the
shaft in which Respondent' s miners, including the alleged discriminatees, were
working.
C. The work stoppage on November 8, 1961
On November 8,i0 the day shift engaged in the shaft-sinking operation consisted of
Foreman Fitzgerald, also called the "shifter" in the record, the four alleged dis-
criminatees, Galey, Lanham, Bess, and Upchurch, and one other miner, Marvin
Williams. After reporting for work at the change house where they donned their
work clothes, they were transported by truck to the mouth of the shaft at the top of
the mountain, arriving there just as the previous shift was emerging out of the
shaft. The latter group, "wetter" and "dirtier than usual," complained "that it
was awful rough down there." 11 Lanham observed a rock from the nearby dump-
ing and sluicing operation on the dike of the reservoir,13 roll down the embankment
and strike the crane used to operate the cage in the shaft. The temperature at the
top of the shaft that morning was 29°, the coldest since the shaft widening had
commenced. The day crew hesitated about going down into the shaft. According
to Lanham, Galey, Upchurch, and Bess, Superintendent Finlay and Foreman Fitz-
gerald then rode down on the cage into the shaft, came up in a few minutes, and
Fitzgerald then ordered the men to get on the cage and go to work.13 When the
crew arrived at the bottom of the shaft, they climbed down the ladder from the top
deck of the cage to the floor of the shaft, unloaded their gear and equipment from
the lower deck, manually pushed the cage to its usual position over the pilot hole to
protect, to the extent possible, against falling into it, and proceeded to work. In
accordance with usual procedure, Galey started to paint a line to mark the outer
perimeter of the shaft to its intended width. However, water gushing, spurting,
and seeping out of and down the walls of the shaft about their heads washed off
the paint as fast as it was applied and erased the line before it was completed. In
8 See Respondent's Exhibit No. 17.
8 See Respondent ' s Exhibit No 6
1a This and all dates hereinafter refer to 1961 , unless otherwise specifically noted
n The foregoing is based on the credited testimony of Williams , a disinterested witness,
who is also an ordained preacher.
12 According to Miller F . Finlay , Respondent 's superintendent in charge of underground
tunnel and shaft work , Respondent 's Exhibit No 6 portrays the approximate position of
the dike of the reservoir and the shaft on November 8 (The loose rock and boulders in
the upper left corner of the photograph are part of the reservoir dike ) However, the
photo also shows a truck unloading gunite, and since the last date when gunite was ap-
plied to the shaft was November 6, the photograph must have been taken no later than
that date . I therefore infer that by November 8 the dike of the reservoir had progressed
closer to the mouth of the shaft than shown on Respondent 's Exhibit No 6, and , accord-
ingly, I credit Lanham's testimony that the base of the embankment was about 20 feet
from the shaft opening
1s Both Finlay and Fitzgerald testified that Finlay was not present at the shaft open-
ing when the day shift came on , and they both denied that they had preceded the crew
into the shaft . Since I regard the resolution of this credibility question not essential to
the determination of the issues herein, I shall not attempt to resolve it.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition, there was a strong updraft emanating from the pilot hole which caused the
falling water, mixed with dirt and mud from the walls and floor of the shaft, to
blow back up from the pilot hole to the top deck of the cage, and then spray all
over the lower section of the shaft where the men were preparing to work.14 To
keep foreign materials from entering their eyes, it was necessary for the crew to keep
their eyelids open to the barest minimum. Upon orders from Fitzgerald to proceed
nevertheless, Galey and Bess started to operate the air hose gun to blow the uncleared
muck and rock from a previous blast down into the pilot hole, and Lanham, Up-
church, and Williams commenced drilling holes in the floor of the shaft in prep-
aration for the next blast. The crew made little progress however, because the floor
of the shaft was covered by a hardened layer of gunite which had fallen when the
walls of the shaft had received a final application of gunite on November 6.15 As
a consequence, Galey and Bess found that they could not penetrate the layer of
gunite to blow the rock and muck from the last round down the pilot hole. In
addition, the gunite over the loose rock made it difficult for the drillers to reach the
solid floor of the shaft into which they were to drill holes for the next round.
Moreover, the crew also found it difficult to maintain safe footing on the floor of
the shaft. They credibly testified that the combination of the usual 35° to 45°
slope of the floor, the gunite, and the water and muck, made the floor of the shaft
slippery.16 In addition, Lanham testified that while they were working in the shaft
that morning, a few small rocks fell down from above, but he did not know whether
they came from the mouth of the shaft or had worked loose from the shaft's wall.
According to all the members of the crew, except Foreman Fitzgerald whom I do
not credit, the conditions encountered in the shaft on the morning of November 8
were not normal in the following respects: (1) although prior to this date, there
had been natural seepage of water down the walls of the shaft, it had never before
gushed out from the walls in such volume and force as to cause it to fall through the
air as it did on that morning; 17 (2) the water coming down had the same discolora-
tion as that being used in the sluicing operation on the nearby reservoir dike; (3) the
presence of a hardened layer of gunite and "pockets" of water on the steep grade of
the floor of the shaft made footing more difficult than usual; and (4) the unusual
force of the updraft blowing the abnormal amount of water mixed with dirt back
into their faces, made it difficult for the crew members to keep their eyes open.
According to Bess, the crew worked for about 20 minutes. Then Upchurch, who
wore no rain gear and was by then "thoroughly soaked" and his "eyes . filled with
muck," asked Fitzgerald, "Do you think Mr. Finlay could find us a better place to
work?" Fitzgerald replied that he did not know. At the suggestion of Upchurch,
Fitzgerald ordered the men to shut off their machines and they gathered together on
the floor of the shaft. According to Lanham's credited testimony, Foreman Fitz-
gerald said, in substance, "Boys, if I was a miner, I wouldn't work in conditions like
this. I would get me a spokesman and go up and try to talk to Mr. Finlay. Talk
nice to him. . If you don't, he will fire you. You know there is a lot of work
to be done in the tunnel, and I believe he will send us down there." The crew then
14 Apparently the updraft was caused by the natural chimney effect of the pilot hole
and the mile-long tunnel to which it connected There is no dispute in the record that
the updraft was affected by temperature changes, becoming stronger when the outside
temperature was low, and diminishing in force when the weather was warmer Since the
29° temperature on November 8 at 7 am was the coldest yet encountered, there can be
no doubt that the updraft was at its then maximum strength. I, therefore, do not credit
Fitzgerald's testimony that the updraft from the pilot hole on November 8 was "just about
the usual amount."
15 Foreman Fitzgerald denied that there was any gumte on the floor of the shaft on the
morning of November 8, and he testified further that there could not have been any since
a round had been shot after guniting was completed. Respondent's work progress records
(General Counsel's Exhibits Nos. 7-A through 7-K) belie Fitzgerald's testimony that any
round had been fired in the shaft after the application of the gunite Moreover, Williams,
a disinterested witness, also credibly testified to the presence of gunite on the floor of
the shaft. Fitzgerald's testimony was also unreliable in other respects He testified, for
example, that the men regularly and customarily wore rain gear when they worked in
the shaft. Photographs of crews entering or leaving the shaft, put in evidence by Re-
spondent , show that relatively few employees wore rain gear . Other witnesses credibly
testified that rain gear was provided by Respondent, but that its use by the crew members
was optional , and that on November 8 neither Fitzgerald nor Upchurch wore rain gear.
16 Williams, the only crew employee who did not participate in the work stoppage, testi-
fied "it was extremely hard to stand up and . . . start your holes to drill."
17 According to Lanham , some of the water was falling into the shaft "from the top."
FRUIN-COLNON CONSTRUCTION CO., ETC. 899
discussed the matter, concluded that they did not like the "safety conditions," and
decided to go up and talk to Finlay. Before they left the shaft, Fitzgerald told them
that in their conversations with Finlay he would have to "stand neutral be-
cause . . . [he] was a company man." 18 Thereupon, the crew reloaded their
equipment onto the cage and were hoisted to the surface.
Upon arrival at the top about 8 a.m., the crew went into the hoist room to warm
and dry up at the stove. Fitzgerald put in a call for his supervisor, Richard Hosp,
who is sometimes called the "walker" in the record. Hosp arrived at the hoist room
shortly thereafter. According to the credited testimony of Bess, Fitzgerald told
Hosp "that the men had refused to work under [because of] the unsafe conditions
of the shaft." Hosp replied that he could "make no decision" and would have to
"get Finlay." Finlay came up to the "top" a little while later. Before talking to the
crew, he first spoke alone with Fitzgerald near the collar of the shaft and asked
what the trouble was. Fitzgerald replied that the men were complaining that
"it was too wet to work and that they wanted to know if they could work in the
tunnel " Finlay asked Fitzgerald whether the condition was "any different than it
had been," and the latter said, "No." Finlay then told Fitzgerald, "The work is
in the shaft. I don't have any other work in the tunnel." Thereupon, Finlay,
ignoring the men in the hoist room, walked toward the nearby maintenance shack.
Fitzgerald conveyed Finlay's message to the men. Preferring to talk directly with
Finlay, the crew, except for Fitzgerald and Williams who stayed behind, followed
Finlay toward the maintenance shack and engaged in conversation with him. Accord-
ing to the credited testimony of Bess, they told Finlay about the conditions in the
shaft previously described,19 that "it was too dangerous," and that "we refused
to work under them conditions." Finlay replied that "all the work was in the hole."
The conversation continued for about 30 minutes. According to Galey's credited
testimony, the miners urged Finlay either to stop the rock dumping and sluicing
on the reservoir dike adjacent to the mouth of the shaft or to transfer them tem-
porarily to work in the tunnel . Finlay refused to do either. During the conversa-
tion, the miners were joined by the Union's steward, Samuel E. Swaringin, who,
after hearing the miners' complaints, told Finlay that the job was "unsafe." Finlay
maintained that it was not. Swaringin referred to the proximity of the dumping
operation on the dike of the reservoir and the danger of rock washing or rolling
into the shaft from the pressure of the sluicing guns. Finlay insisted there was no
danger because of the anchor fence which surrounded the shaft opening.20 Accord-
ing to the uncontradioted testimony of Lanham, Galey, and Upchurch, Finlay cast
aspersions on their manhood because they permitted a little water to deter them
from working in the shaft. Bess asked Finlay to step "outside" to see "who was a
man and who wasn't." Finlay declined the invitation, and Bess called him a "yellow-
bellied " 21 He then said to Finlay, "You would send men down that shaft
to get killed." Finlay replied, "That is different." Finally, according to Lanham,
Finlay told them that they were not getting paid for standing around, that they should
28 Fitzgerald denied that he told the men that if he were a miner, he would not work
under such conditions However, Williams who did not hear everything that was said
because the roar of the drill had not subsided from his ears, testified that to the extent
that he beard the conversation, Fitzgerald "was agreeing with the men [in respect to]
the conditions" which "they were . .. telling him." Since I regard Fitzgerald as gen-
erally unreliable and regard Williams as disinterested and worthy of credence, I do not
credit Fitzgerald's denial
19 According to the four miners, whose testimony in this respect was denied by Finlay,
they also complained about the loose boards and the absence of protective covering on half
of the lower deck of the cage, about safety harnesses which did not fit and fell off the
men, and about the "rotten" ropes by which the harnesses were tied to the cage I find
it unnecessary to resolve this conflict in the testimony, since assuming the conditions to
be that described by the four miners, they had existed for sometime, and thus did not
amount to "abnormally" dangerous conditions for work within the meaning of Section 502
of the Act. The General Counsel does not contend to the contrary in his brief
2s The mouth of the shaft, as shown in Respondent's Exhibit No 6, was surrounded by
a chain link fence, 5 feet high, held in place by steel posts. The bottom 2 feet of the
fence was covered by plywood However, there was an opening or gap in the fence, used
for access to the shaft, on the side adjacent to the dike of the reservoir. Respondent's
Exhibit No 6 shows a truck loading concrete into a guniting machine through this gap
in the fence.
21 Bess apologized to Finlay a day or two later There is no contention by Respondent
that the discharge or refusal to reinstate Bess was based on this incident.
672010-63-vol. 139-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"go home," and that he would call them back "when it got better." 22 Williams, who
came into the maintenance shack at the tail end of the conversation between the
miners and Finlay, credibly testified that he heard one of the miners "more or
less summing it up," say, "they wasn't quitting," and Finlay said, "he wasn't firing
them."
Finlay's and Hosp's version of the conversation in the maintenance shack was
somewhat different from that of the miners and their steward. According to Hosp
and Finlay, none of the men said that it was unsafe to work in the shaft, their
complaint being only about the excessive water, that it was uncomfortable to work,
and they were unable to accomplish "a good day's work in that much water."
However, Hosp and Finlay both admitted that Bess had offered to engage Finlay in
a physical test of who was the better man, and neither of them denied the context
in which,the invitation was extended. Both also admitted lack of recollection of many
of the details of this conversation with the miners on the morning of November 8.
It seems quite apparent that Finlay's aspersion to lack of manhood on the part of
miners whose work, even under the best conditions, is concededly dangerous, was
a reference to cowardice based on the fears expressed by the miners for their
safety. Moreover, the failure of Finlay to deny that Bess accused him of willing-
ness to send men into the shaft to get killed, likewise supports the conclusion that
the subject of discussion that morning was the "unsafe," rather than "uncomforta-
ble," conditions in the shaft. In addition, as noted above, Union Steward Swaringin,
although openly hostile to the General Counsel, testified that he told Finlay that the
job was "unsafe." For all the foregoing reasons, I do not credit the testimony
of Hosp and Finlay that the miners alluded to discomfort and not safety during
said conversation 23
Finlay denied that he told the men to go home and that he would call them back
when "it dried up." According to both Finlay and Hosp, it was Union Steward
Swaringin who made that suggestion, but Finlay did not accede to it. Finlay testi-
fied that he told the men that he "wasn't firing them," and that he also told them
that unless they resumed work in the shaft, he would assume that "they were
quitting" and "would replace them with other men." Whether or not Finlay told
the men that he would call them back, it is quite apparent that at least two of the
alleged discriminatees construed the totality of this conversation as a termination
of their status as employees. Thus, contrary to the normal practice of leaving
their gear in the change house each day, Upchurch and Bess turned in their com-
pany equipment to the supply room before they left the project that morning. In
addition, Bess suggested to a neighbor that he apply for a job because the Company
was hiring.
Following their conversation with Finlay, the four alleged discriminatees, accom-
panied by Union Steward Swaringin, went to see Safety Director Palmer at his
office, but Palmer was not in, and after waiting for about an hour, they changed
their clothes, left the project, and went home.24
D. Subsequent events-Respondent's discontinuance of shaft sinking on November 9
Notwithstanding that Finley allegedly regarded the shaft as a safe place in which
to work, he did not permit any employees to work in it until after he made an
inspection later that morning. Thus, after the four alleged discriminatees left
the project, Finlay instructed Foreman Fitzgerald and Williams, who elected to
continue working, to go down and work, not in the shaft, but in the tunnel.25 Later
za Galey, Bess, and Upchurch testified that Finlay said he would call them back "when
it dried up." Union Steward Swaringin testified that Finlay said he would call them
back but did not say when.
23 In addition, later that morning, Finlay and Respondent's Safety Director Palmer in-
spected the shaft with Union Steward Swaringin to assure the latter regarding its safety.
Moreover, I do not place much reliance, generally, on the testimony of either Hosp or
Finlay for the following reasons, among others, Finlay's testimony, in a number of re-
spects, contradicted his earlier affidavit given to the Board's agent. Hosp, contrary to
other witnesses whom I credit, testified that he worked in the shaft with Williams and
Fitzgerald on the following day, November 9.
24 Swaringin also attempted to contact the Union's business agent but was unsuccessful
25 Finlay testified that his reason for sending Fitzgerald and Williams to the tunnel,
rather than to work in the shaft, was that he did not believe that the two of them alone
could accomplish anything of value, and that he later changed his mind because Fitzgerald
persuaded him that they could . Since the only intervening event was Finlay's inspection
of the shaft, and in the light of my general lack of reliance on his testimony, I regard
this attempted explanation implausible.
FRUIN-COLNON CONSTRUCTION CO., ETC. 901
that morning about 11 or 11:30 a.m, Union Steward Swaringin, together with
Safety Director Palmer, and Superintendent Finlay, went down into the shaft to
inspect its safety for work 26 The three inspected the sides of the shaft for loose rock,
observed streams of water flowing in from the sides of the shaft, and a fine spray
or mist near the pilot hole. However, they did not get off the top deck of the cage.
Finlay testified that the shaft was "very wet" and that there was "a pretty strong
draft " 27 According to Palmer, throughout the inspection trip and after its com-
pletion, Swanngm insisted that the shaft was unsafe to work in. After the inspection,
Finlay instructed Fitzgerald and Williams to discontinue their work in the tunnel and
resume work in the shaft, which they did from about 12 noon to the end of the
shift at 3 p.m. Williams credibly testified that as the weather got warmer during
the day, the updraft decreased in force, and there was not as much water coming
into the shaft as there had been that morning 28
While Fitzgerald and Williams worked that afternoon, Safety Director Palmer
made another effort to obtain union approval for continuation of the work in the
shaft. To this end, Palmer requested Vincent Jackson, a labor foreman employed
by Respondent, who formerly was the Union's steward on the project, and who is
now the Union's area steward, to visit the shaft and "satisfy" himself that condi-
tions were safe.29 They went to the mouth of the shaft, looked down from the
top, but did not go down into it. According to Palmer, Jackson then suggested
the removal of a few loose rocks from the area about the mouth of the shaft, and
told Palmer and Finlay, who was also present, that the "water should not prevent
the men from working in the shaft." 30
At 3 p.m., the swing shift reported for work and worked in the shaft. According
to Respondent's Foreman Delbert Smith and the work progress report for this shift,
in addition to the water spurting from the sides or ribs of the shaft, about 7 p.m.
and continuing thereafter for an hour, "lots of water" from the sluicing operation on
the reservoir dike poured into the shaft from its mouth. The crew continued to work
nevertheless. The graveyard shift reported for work at 14 p.m. and worked that
night until 7 a.m. the following morning.31 On November 9, the day shift, consisting
of Foreman Fitzgerald and Williams, again resumed work in the shaft.32 About
9:45 a.m., Fitzgerald and Williams were joined by four new men who had been
hired by Respondent that morning. All six then worked in the shaft until the shift
21 Finlay testified that he made his inspection, not with Palmer and Swaringin but with
Union Electric's geologist, Dick O'Brien. However, Finlay's affidavit to the Board states
that he made the inspection trip with Palmer and Swaringin , and contains no reference
to any such with O'Brien. Both Palmer and Swaringin testified that they were accom-
panied by a third person, either Finlay or Hosp, but could not recollect which it was
I regard their professed lack of memory in this respect as incredible Supervisor Hosp
testified that he was the third person, but I regard his testimony as unreliable and do not
credit it O'Brien was not called as a witness by Respondent , no motion was made for a
continuance for the purpose of securing O'Brien's attendance and testimony , and no ex-
planation was offered by Respondent for its failure to do so. I conclude under these
circumstances that Superintendent Finlay was the person who accompanied Palmer and
Swaringin during the inspection of the shaft.
27 In view of my conclusion that Finlay accompanied Palmer and Swaringin , and that
this inspection crew did not descend to the floor of the shaft from the top deck of the
cage , I do not credit Finlay's denial that the shaft floor was slippery or his testimony
that he "had no trouble walking "
28 The outside temperature at 12 noon was 40° and it rose to 45° by 3 p.m. when the
shift ended
29 Apparently Palmer, whose duties include personnel and labor relations responsibility,
was concerned , because of Swaringin ' s insistence that the shaft was unsafe , that the
succeeding shifts might also participate in the "work stoppage." Palmer testified that
he sought Jackson's approval of the working conditions because the employees "look up
to Vincent [ Jackson]," and because he "was the Union" on the job.
80 This , quite apparently , was an allusion , not to the men who had quit, but to succeed-
ing shifts , the object of Palmer's concern Since the shaft was then about 125 feet deep,
and distinct visibility from the surface was limited to the first 30 feet, it is quite obvious
that no reliance can be placed on Jackson 's opinion regarding the "water."
Si The work report for that shift makes no reference to water in the shaft . However,
the record does not disclose whether sluicing of the reservoir was performed during the
night.
as Fitzgerald 's supervisor , Hosp, testified that he worked in the shaft with Williams and
Fitzgerald that morning , but since both Fitzgerald and Williams credibly testified that
they were alone, I do not credit Hosp.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ended at 3 p.m. According to Foreman Fitzgerald, the water conditions in the shaft
,and the updraft on November 9 were the same as on the previous day. However,
Williams, whom I credit, testified that although water conditions were the same, the
updraft was not as strong . Moreover, Respondent's work progress report for
that shift discloses that "water started coming in at 1:30 p.m. from sluice
gun." 33 In addition, one of the new men on Fitzgerald's shift quit after working that
1 day.34
Before the swing shift on November 9 entered the shaft, Finlay observed that
water from the sluicing of the reservoir was flowing directly into the mouth of the
shaft in considerable volume. He thereupon checked with Project Superintendent
Arp, was advised that the completion of the reservoir had precedence, and ordered
that work in the shaft be discontinued. Thereupon, the miners who regularly worked
in the shaft were assigned to work and did work in the tunnel from November 9
to December 18.
Finlay testified that he shut down work in the shaft because he regarded the in-
creased water flow as the "main" dangerous condition, since it was sufficient in force
and volume to move a man. Finlay denied that there was a possibility of rocks roll-
ing down from the reservoir dike into the shaft on November 8, but reluctantly
admitted that after November 8, "when the fill would be closer to the collar of
the shaft," that danger also existed. As far as Safety Director Palmer was concerned,
"the shaft was at all times a safe place to work in."
E. Respondent's termination of the four alleged discriminatees and its refusal to
reinstate them
Notwithstanding that the four alleged discriminatees had told Finlay and Hosp
that they were not quitting, and Finlay's statement to them that he was not firing
them, Respondent's records 35 disclose that on November 8, Hosp executed final
termination slips for all four of them designating the reason for the termination as
"Quit" as of November 8 at 9 a m. Moreover, according to Williams' credited
testimony, about 12 noon on November 8, just before he resumed work in the
shaft, he heard Finlay ask Fitzgerald if he knew of any men "who would like to
work there," and Fitzgerald replied that he did. 36 On the following morning, No-
vember 9, four persons applied at the project gate for jobs as miners, and were
promptly hired by Personnel Director Palmer although three of them had no prior
mining experience. As noted above, these four worked in the shaft for one shift,
one quit at the end of 1 day, and the others were transferred the following day to
work in the tunnel.37
On November 13, at a meeting at the project between the union and Respondent's
representatives, attended also by the four alleged discriminatees, the union repre-
sentatives asked for their reinstatement. According to the credited testimony of
Union Business Agent Wilson, both Mr. Arp, the project superintendent, and Finlay
replied that the four had quit, and as far as the Company was concerned it was
going to stay that way.
The four were never rehired. As noted above, work on the shaft was resumed
on December 18 and completed on January 29, 1962. The record is silent as to
whether the men who worked in the shaft were thereafter transferred to other work
or were terminated.
F. Concluding findings
Section 502 of the Act provides, inter alia , "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 of such employee or employees be deemed a
strike under this Act." In Knight Morley Corporation, 38 the Board, construing this
section of the Act, held "that Section 502 gives employees the right to walk out
because of abnormally dangerous working conditions and be protected, even in the
face of a no-strike clause in their contract with an employer."
33 General Counsel's Exhibit No. 7-J. Fitzgerald's failure to testify about the water
from the sluicing of the reservoir serves to emphasize the lack of reliance which can be
placed generally an his testimony regarding working conditions in the shaft.
14 The record is silent in respect to which of these new employees quit or why he did so
15 Respondent's Exhibit No. 19 A-D.
"II do not credit Finlay 's testimony that this conversation with Fitzgerald occurred at
3 p.m. when the shift ended.
37 Accordingly , I do not credit Finlay's testimony that no work in the tunnel was avail-
able when the four alleged discriminatees requested such work on November 8.
38 116 NLRB 140, enfd 251 F. 2d 753 (CA. 6), cert. denied 358 U.S. 858.
FRUIN-COLNON CONSTRUCTION CO., ETC. 903
1. Respondent's contentions
Respondent concedes that work in the shaft was hazardous under the best condi-
tions. It contends that because of its knowledge of the hazards involved, and its
safety consciousness, it "took every possible safety precaution consistent with the
nature of the work being done," including, (1) providing safety equipment consisting
of hard hats, safety boots, rain suits, and safety harnesses; (2) requiring the cage
to be positioned over the pilot hole to minimize the risk of falling into the hole;
(3) paying the miners premium pay of 50 cents per hour and 9 hours' pay for
8 hours' work; and (4) shutting down work in the shaft on November 9 when it
concluded that such work was too dangerous. Respondent urges as further proof
that it was "safety conscious" and maintained an "effective safety program," that the
record shows that there were no lost-time accidents during the sinking of the shaft,
and to the resulting 20-percent experience credit rating which it received in its
workmen's compensation insurance rate. Finally, the Respondent contends that
the General Counsel has failed to establish by objective testimony that working
conditions in the shaft were abnormally dangerous on November 8, when the four
miners quit work,39 in the light of the record which assertedly discloses that: (1)
water in mine work is not uncommon; (2) there was always water in the shaft on
this project; (3) an updraft from the pilot hole was always prevalent; and (4) other
miners worked in the shaft without incident both before and after the concerted
work stoppage by the four miners.
2. Respondent's professed safety consciousness
The issue herein, is, of course, not whether Respondent was "safety conscious," or
even whether it took every reasonable or necessary safety precaution, but rather
whether working conditions in the shaft were abnormally dangerous when the men
refused to work therein. However, even assuming the materiality of Respondent's
professed safety consciousness, the record does not support its assertion that every
reasonable precaution was taken "consistent with the nature of the work being done."
In this regard, the record shows the following: (1) Respondent's safety director had
no previous safety experience in either mine, tunnel, or shaft work; (2) except for the
hard hat, Respondent did not require the miners to wear or use any of the protective
equipment which it issued, and they did not always do so; (3) prior to the work
stoppage, Respondent's safety director had entered the shaft only once to make a
safety inspection, and that when the shaft was only 40 to 50 feet deep; (4) when
Superintendent Finlay was advised by the four miners that conditions in the shaft
were unsafe, he made no inspection to ascertain conditions for himself, but instead,
arbitrarily ordered the miners either to return to work therein or be regarded as
having quit their employment; (5) the shaft inspection which was made later that
morning by Safety Director Palmer and Superintendent Finlay was, quite apparently,
not for the purpose of ascertaining whether the shaft was a safe place to work in,
but to persuade Union Steward Swaringin to that effect, and thus prevent participa-
tion in the work stoppage by succeeding shifts of miners; (6) that on this so-called
safety inspection, neither Palmer nor Finlay descended from the top deck of the cage
to inspect either the footing conditions on the floor of the shaft, or the extent to
which the water blowing up from the pilot hole affected visibility of persons working
on the shaft floor; thus, the inspection was quite obviously inadequate to determine
the safety conditions of employees who had to work on the floor of the shaft; (7)
that when Palmer failed to secure Swaringin's agreement that the shaft was safe,
he brought the man he regarded as "the Union on the iob" to the top of the shaft,
and secured his agreement, without going into the shaft, that the water conditions
should not prevent the men from working, thus assuring continuation of the shaft
work by succeeding shifts of miners; (8) that as far as Safety Director Palmer was
concerned, the shaft was at all times a safe place to work in, which of course, in-
cludes the period when the shaft was shut down because it was not safe; and (9)
finally, after the shaft work was discontinued because work therein was concededly
too dangerous, Safety Director Palmer did not enter the shaft to make a safety in-
spection before work was thereafter resumed. In view of all the foregoing. I am
not persuaded by Respondent's professed safety consciousness, and regard the absence
of lost-time accidents in the shaft and the resulting reduced workmen's compensation
rate as a fortuitous circumstance.
39 Respondent quite properly relies on the Board's decision in Redwinq Carriers, Inc
and Rockana Carriers, Inc , 130 NLRB 1208, 1209, to support its contention that objective,
rather than subjective, testimony is required to establish the existence of abnormally
dangerous conditions of work
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 The abnormally dangerous working conditions on November 8
We come then to the issue of whether the working conditions in the shaft were
abnormally dangerous when the miners engaged in their work stoppage. The word
"abnormal" is defined by the dictionary 40 as "deviating from the normal condition or
from the norm or .average." As found above, the credited record discloses that nor-
mal conditions for work in the shaft were as follows: (1) the miners worked in a
shaft at the bottom of which there was a pilot hole 8 to 12 feet wide and, at the time
of the work stoppage, still approximately 325 feet deep; (2) the floor of the shaft
was rough and partly covered, until blown into the pilot hole, with loose rock
from previous explosions; (3) the floor of the shaft sloped toward the pilot hole at
a grade of from 35° to 45°; (4) the walls of the shaft were generally damp from
natural seepage of surface water through faults in the earth; and (5) there was
always an updraft from the pilot hole which increased when outside temperatures
dropped, and vice versa. Thus, under normal conditions, there was always present
the danger of falling into the pilot hole and of being struck by rocks working loose
from the sides of the shaft and falling onto the miners working below. To
minimize these dangers, Respondent provided the miners with hard hats, rain suits,
safety boots, and harnesses, and the miners customanly positioned the cage over
the pilot hole to reduce the size of the opening into which they might fall. No one
suggests that these safety measures eliminated all the hazards of falling into the shaft
or being injured by falling rocks. Indeed, as noted above, Respondent conceded
that under normal conditions, the work involved was hazardous, and that for this
reason, it compensated the miners with premium pay.
On November 8, however, the conditions in the shaft were different than they
normally were as a consequence of three new elements: (1) the construction of the
dike or wall of the reservoir had progressed to within 20 feet from the mouth of the
shaft; (2) a final application of gunite had been blown onto the sides of the shaft on
November 6, and there had been no work done on the floor of the shaft since then;
,and (3) the temperature had dropped on the morning of November 8 to 29°, the low-
est yet encountered. These elements presented new dangers which had not been
present before that date. The dumping of rock, including many large boulders,41
at the rate of 17 cubic yards every 2 or 3 minutes, from an embankment about 75
feet high, in such close proximity .to the mouth of the shaft, and the sluicing of the
rocks with water at a pressure of 160 pounds, presented the danger that one or more
,of such boulders might crash through the access opening in the fence surrounding
the shaft, or indeed through the fence itself upon the miners below. Although the
miners could protect themselves from the possibility of rock working loose from
the sides or ribs of the shift by removing such "loose," which they generally did while
descending into the shaft, they could take no like protective measures to prevent rocks
rolling down the embankment and falling on them. On November 8, Lanham saw a
rock roll down from the dike and strike the crane at the mouth of the shaft, and
while working in the shaft, some rocks emanating from unknown sources fell down
from above. In addition, the large volume of water used in sluicing so close to the
shaft opening, 1,200 gallons per minute, presented the danger, which indeed be-
came reality soon thereafter, that the water would flow into the shaft upon the miners
below. On November 8, the immediate effect of the sluicing near the mouth of the
shaft was that water flowed, gushed, and spurted out of the sides down through the
shaft into the pilot hole at the rate of at least 45 gallons per minute,42 and then
because of the low temperature and the resulting increase in the updraft from the
pilot hole, blew back into the miners' faces, mixed with dirt and muck from the walls
and floor of the shaft. As a natural consequence, the miners were compelled to
keep their eyes practically closed to prevent dirt from entering them. Quite obviously,
this also affected their visibility and increased the normally existent danger of fall-
ing into the pilot hole.43 Finally, the presence of a layer of wet and hardened gunite
40 Webster ' s New Collegiate Dictionary.
41 See Respondent ' s Exhibit No. 6.
42 Finlay , whom I do not regard as reliable, admitted that much
43 If , as Respondent ' s witnesses testified , the flow of water into the shaft was always
present in considerable volume, it appears inconceivable that the miners would not always
have worn their rain gear. However , the photographs in evidence showing many miners
entering and leaving the shaft not attired in rain suits , and the failure of Foreman
Fitzgerald and Upchurch to wear their Tain gear on the morning of November 8, persuade
me that I cannot credit Respondent's testimony that water in volume was a normal con-
dition of the shaft Significantly , no rank -and-file miner was called by Respondent to
testify that conditions in the shaft were always the same as on November 8
FRUIN-COLNON CONSTRUCTION CO., ETC. 905
on the sloping floor of the shaft, quite obviously increased the difficulty of footing
and :the danger of slipping and falling into the pilot hole.
Respondent suggests that since the shift before and several shifts thereafter worked
in the shaft without incident or injury, conditions could not have been abnormally
dangerous on November 8. I regard this assertion as devoid of merit. The shift
before had not worked on the floor of the shaft and thus had not been subjected,
either to the water and dirt blowing into their faces from the pilot hole, or to the
problem of difficult footing. The fact that Williams and later shifts of miners worked
thereafter does not necessarily establish that working conditions were not ab-
normally dangerous, since, just as likely, they might have been motivated to assume
the risks involved to avoid termination of their jobs. Moreover ,the Respondent's
work records show that before Finlay saw it and shut down work in the shaft,
"lots of water" poured into the shaft from the dike on the afternoon shift on Novem-
ber ,8, and -again on both the day and on the afternoon shift of November 9. Under
these circumstances the fact that miners worked without injury, and that no one was
in the shaft when conditions concededly became too dangerous to work, was pure
happenstance. Obviously, Section 502 of the Act does not require that someone be
killed or seriously injured before conditions of work can be regarded as abnormally
dangerous. For all the foregoing reasons, I am persuaded that the record amply sup-
ports by objective testimony that conditions in the shaft were abnormally dangerous
when the four miners refused to work therein.
4. The good faith of the four miners who refused to work
The second requirement of Section 502 is that "the quitting" of work because
of abnormally dangerous working conditions be "in good faith." In this regard, the
record discloses the following:
Three of the four employees who refused to continue to work in the shaft had
many years of mining experience , and were familiar with the dangers of working in
underground mines, including experience with the water commonly encountered
in some mines . Two of them, Lanham and Galey, had worked for Respondent in
the concededly hazardous job of drilling and blasting the pilot hole from the tunnel
to the top of the mountain. All four had worked in drilling and blasting the shaft
to its depth on November 8 of 125 feet, notwithstanding the hazards normally and
admittedly involved in such work 44 When the four complained to Finlay that
conditions in the shaft were unsafe, they asked to be assigned to work in the tunnel,
which, in view of Respondent's identical premium pay for such work, was also
hazardous work. They also indicated willingness to continue working in ,the shaft if
Respondent would discontinue the sluicing and dumping operations then adjacent
to the mouth of the shaft. When both requests were denied, and they were instructed
either to go back to work in the shaft or go home, they chose the latter despite
Finlay's aspersion to their lack of manhood. Under these circumstances it is quite
apparent, and I find that they acted in the good-faith belief that continuing to work
under the existing conditions presented abnormal hazards over and above those
that they had previously experienced in their work.
5. Respondent's discharge of the four miners who refused to work in the shaft
The next question presented is whether Respondent discharged the four miners
because of their work stoppage or merely hired replacements for them. For the
reasons stated below, I conclude that they were discharged.
As found above, when the four miners were denied their ;alternative requests, (1)
that the hazards caused by the rock dumping and sluicing of the reservoir be dis-
continued, or (2) that they be assigned to other work in the tunnel, they were
instructed by Finlay either to return to work in the shaft or go home. Although they
elected the latter course rather than risk the abnormal hazards of continuing to
work in the shaft, they made clear to Finlay that they were not "quitting" their
employment. Although Finlay, in turn, told them that he was not firing them,
nevertheless, that same day, Respondent's Supervisor Hosp signed final "termination
slips" for the four which stated that the reason for their termination was "quit."
At the time Respondent so terminated the four employees, it had not hired replace-
ments for any of them. Since the four had neither quit their employment nor been
replaced, it is quite apparent that Respondent discharged them from further em-
ployment because they had refused to work under the abnormally dangerous work-
44 The record is not clear as to when the work of sinking the shaft began. According
to Lanham, it was either in September or October 1961. Bess started to work for Re-
spondent on October 20 and Upchurch on October 23.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing conditions in the shaft. My conclusion in this respect is buttressed by the refusal
of the Respondent on November 13 to reinstate any of the four although Respondent
then had a vacancy for one of them.45 Notwithstanding the existence of that vacancy,
Project Superintendent Arp and Finlay said that the four had quit, and that as far
as the Company was concerned it was going to stay that way In the light of Re-
spondent's records showing that the four were terminated on November 8, and its
expressed intention of refusing employment to any of the four whether or not there
were jobs -available, it is quite apparent, and I find, that Respondent discharged them
on November 8 because they had refused to work in the shaft.
6. Conclusion
In view of my conclusion that the four miners who refused to work in the shaft
did so in good faith because of abnormally dangerous working conditions, it follows,
a fortiori, that under Section 502 of the Act, their concerted action, whatever else
it may properly be termed, was not a "strike." Accordingly, their conduct was not
a breach of the no-strike provision of the collective-bargaining agreement between
the Union and Respondent, and, under the Board's decision in Knight Morley, supra,
was protected activity. It follows, therefore, that the Respondent's discharge of the
four for engaging in such protected activity was unlawful, and interfered with,
restrained, and coerced employees in the exercise of their right under the Act to
engage in concerted activity for mutual aid or protection. I therefore conclude that
by its discharge of the four employees, Respondent thereby engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the ACt.46
There is, however, absolutely no proof in the record that Respondent was either
motivated by antiunion considerations in discharging the four miners for engaging
in said protected activity, or that the effect of said discharges would likely be to
encourage or discourage membership in a labor organization. I therefore conclude
that the General Counsel has failed to sustain the burden of proving that the conduct
of Respondent constitutes an unfair labor practice within the meaning of Section
8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in C"-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged and refused to reinstate Loren Galey,
Jr., Jonathon Bess, Melvin Upchurch, and Abe Lanham, Jr., I will recommend that
the Respondent be ordered to offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of earnings they
may have suffered because of their discharge and the refusal to reinstate them by
the payment to each of them of a sum of money equal to the amount he normally
would have earned as wages from November 13, 1961, the date they requested rein-
statement, to the date of the offer of reinstatement, less his net earnings during
said period, with backpay computed on a quarterly basis in the manner established
by,the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and all other records necessary to facilitate the determination of
the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission
of similar unfair labor practices reasonably may be anticipated. I shall therefore
recommend that the Respondent be ordered to cease and desist from in any like or
related manner infringing upon rights guaranteed to their employees by Section 7
of the Act.
45As found above, one of the four replacements hired by Respondent on November 9
quit after working just 1 day
46 Cf N L R B. v. Washtngton Aluminum Com-pang, Inc, 370 U.S 9
FRUIN-COLNON CONSTRUCTION CO., ETC. 907
In view of the absence of proof that Respondent's discharge and refusal to rein-
state Loren Galey, Jr., Jonathon Bess, Melvin Upchurch, and Abe Lanham, Jr.,
was motivated by antiunion considerations, or that the effect of such conduct by
Respondent either encouraged or discouraged, or was likely to encourage or dis-
courage membership in a labor organization, I shall recommend the dismissal of
those allegations of the complaint which charge that Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 916 , International Hod Carriers , Building and Common Laborers Union,
AFL-CIO, affiliated with Eastern Missouri Laborers ' District Council , is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discharging and refusing and failing to reinstate Loren Galey , Jr., Jonathon
Bess, Melvin Upchurch , and Abe Lanham , Jr., because they in good faith refused
to work under abnormally dangerous conditions of employment , Respondent inter-
fered with , restrained , and coerced employees in the exercise of their rights under
the Act, and thereby has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
3. The General Counsel has failed to establish by a preponderance of the evidence
in the record , that the Respondent 's discharge and refusal to reinstate Loren Galey,
Jr., Jonathon Bess , Melvin Upchurch , and Abe Lanham , Jr., was motivated by
antiunion considerations or that the effect of such conduct by Respondent encouraged
or discouraged , or was likely to encourage or discourage , membership in a labor
organization
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Frum-Colnon Con-
struction Co. and Utah Construction and Mining Co., a joint venture, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing or failing to reinstate, or otherwise discriminating
against employees because they have refused in good faith to work under abnormally
dangerous conditions of employment.
(b) In any other like or related manner interfering with, restraining, or coercing
employees in the exercise of their right to engage in concerted activities for the pur-
pose of mutual aid or protection, or to refrain from engaging in such activities
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Loren Galey, Jr., Jonathon Bess, Melvin Upchurch, and Abe Lanham,
Jr., immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered as a result of their
discharge and the unlawful refusal to reinstate them, as provided in "The Remedy"
section of the Intermediate Report.
(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 as set forth in "The
Remedy" section of the Intermediate Report.
(c) Post at its project near Lesterville, Missouri, copies of the attached notice
marked "Appendix A." 47 Copies of said notice, to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
47 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fourteenth Region , in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith 48
I further recommend the dismissal of the complaint insofar as it alleges that the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)'(3) of the Act.
,s In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge or refuse or fail to reinstate , nor will we otherwise
discriminate against any employee because he has refused in good faith to
work under abnormally dangerous conditions of employment.
WE WILL NOT in any other like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to engage in concerted activi-
ties for the purpose of mutual aid or protection , and to refrain from any or all
such activities.
WE WILL offer to Loren Galey, Jr., Jonathon Bess, Melvin Upchurch, and
Abe Lanham , Jr., immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to any seniority or other rights
and privileges previously enjoyed, and make them whole for any loss of pay
suffered as a result of their discharge and our refusal to reinstate them.
FRUIN-COLNON CONSTRUCTION CO. AND
UTAH CONSTRUCTION AND MINING CO.,
A JOINT VENTURE,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1520
Market Street , St. Louis 3, Missouri , Telephone Number, Main 1-8100 , Extension
2142, if they have any questions concerning this notice or compliance with its
provisions.
Meyers & Son Manufacturing Co., Inc. and Amalgamated Cloth-
ing Workers of America , AFL-CIO . Case No. 25-CA-1563.
November 13, 1962
DECISION AND ORDER
On August 22, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report herein, finding that the Respondent had engaged
in and is engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Intermediate Report. Thereafter the
Respondent and General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof.
139 NLRB No. 72.