H. B. Zachry Co.

National Labor Relations Board - Board DecisionsNov 29, 1965

155 N.L.R.B. 1222 (N.L.R.B. 1965)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 8, shall, after being duly signed by the Respondent's representative; be posted' by it immediately upon receipt thereof, and be maintained by it for at least 60 consecu- tive days thereafter. Respondent shall take reasonable steps to insure that said, notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith.2 IIn 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 20 days from the date of this Decision , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL offer Fortunato Cebella, Frank Soukenik, and James Browning immediate and full reinstatement to their former or substantially equivalent posi- tion of shipping department operator without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay he- may have suffered by reason of this demotion to checker on or about Decem- ber 1, 1964. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training. and Service Act of 1948, as amended, after discharge from the Armed Forces. WE WILL NOT refuse to bargain collectively with the Union by unilateral changes in any term or condition of employment of any employee in the appro- priate bargaining unit in derogation of the rights of the Union. WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. WE WILL NOT engage in like or related conduct which interferes with, restrains, or coerces you in the exercise of the rights guaranteed to you in Section 7. UNITED STATES GYPSUM COMPANY, Employer. Dated------------------- By------------------------------------------ (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting,. and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465. H. B. Zachry Company and International Brotherhood of Electri- cal Workers, Local Union No. 278, AFL-CIO. Case No. 23-CA- 194.5. November 29, 1965 DECISION AND ORDER On August 23, 1965, Trial Examiner A. Bruce Hunt issued his Decision 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- 155 NLRB No. 121. H. B. ZACHRY COMPANY 1223 affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Respondent-filed exceptions and a supporting brief, a motion requesting oral argument,'- and a request for modification of certain recommendations of the Trial Examiner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to o-a three-member panel [Tembers Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the. Trial Examiner made at the hearing and finds- that no prejudicial error was committed. The ralings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, the request for modifica- tion of affirmative action recommendations of the Trial Examiner, and the entire record in this case, and hereby adopts the- findings, con- clusioi s, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.]2 1 Respondent's request for oral argument is hereby denied as, in our opinion, the record, Including the exceptions and brief , adequately presents the issues - and the positions of the parties. z In his decision the Trial Examiner properly found that on the afternoon of Novem- ber 13, 1964, Tucker, the Union's business-agent, made an unconditional request for rein- statement on behalf of the striking employees . Thereafter, he found such employees to have been unlawfully discharged and ordered the Respondent to make such employees whole -and to offer them- reinstatement. The Respondent now requests- that we modify the Trial Examiner 's Recommended Order as to backpay and reinstatement on the ground that the project involved herein has since been completed and that an economic reduction in force occurred which would have resulted in the nondiscriminatory termination of such employees on or about January 31, 1965. Determination of such matters is properly left to the compliance stage of these proceedings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE - This proceeding, in which the charge was filed on November 18, 1964, and the 'complaint was issued on December 22, 1964, involves allegations that the Respondent, H. B. Zachry Company, violated Section- 8(a) (1) and (3) of the National Labor Rela- tions Act, as amended , 29 U.S.C., Sec. 151 et sea. On - March 2,-1965, Trial Examiner A. Bruce Hunt conducted a hearing at Corpus Christi, Texas, at which all parties were represented? Upon the entire record and my observation of the witnesses, I- make the following: Fnvnnics of FACT 1. THE RESPONDENT H. B. Zachry Company, a Delaware corporation , has its principal office at San Antonio, Texas , and is engaged in the construction industry . During the 12 months preceding issuance of the complaint , a - representative period, the Respondent pur- chased materials valued in excess of S50,000 which were shipped to the Respondent directly from points outside Texas. There is no dispute, and I find, that the Respond- ent is engaged in commerce within the meaning of the Act. - I On April 23, 1965, the Respondent submitted proposed findings of fact and -conclusions -of law, totaling 48 in number, along with a brief in support thereof. To the extent that the proposed findings and conclusions are inconsistent with the determinations herein, they are rejected. - 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNION - International Brotherhood of Electrical Workers, Local Union No. 279, AFL-CIOâ€ž is a labor organization which admits to membership employees of the Respondent who work in Corpus Christi, Texas. III. THE UNFAIR LABOR PRACTICES A. Background; locale of the events 2 Central Power & Light Co. (herein called CP & L) operates a powerplant at Corpus- Christi, Texas. During 1964-all dates herein are during that year-an addition to the plant was being erected, and CP & L contracted with the Respondent for the con- struction of certain electrical and piping work. On June 15 the Union posted a picket at the project in protest against the Respondent's working conditions. On June 17 and 19 representatives of CP & L, the Respondent, the Union, and other interested employers and labor organizations met to discuss what might be done to remove the picket. During the second meeting, C. B. Morris, vice president of the Respondent, said that the Respondent would pay the wage scale set forth in the Union's contract with Texas Gulf Coast Chapter, National Electrical Contractors Association (herein called NECA), but would not comply with all working conditions set forth therein. One Miland, a representative of an employer, asked union representatives whether the picket would be removed if the Respondent would do certain things, and an under- standing was reached that the picket would be removed if the Respondent would abide- by a 4-point agreement described below. Morris said that he would take the matter under advisement and give the Respondent's answer later. On June 22 representatives of CP & L met with representatives of the Union and other labor organizations. No officer or supervisor of the Respondent attended, and the reason they decided to be absent is not expressly stated in the evidence. A repre sentative of CP & L told the union representatives that CP & L would "see to it" that the Respondent would comply with the four points if the. Union would remove the picket, and that afternoon the picket was removed. The Respondent's position is that it was not a party to any agreement with the Union concerning the four-points, but that CP & L directed it to comply therewith. -Insofar as material, the points were that the Respondent would (1) pay the wage rates set forth in the Union's contract with NECA; i.e., $4.10 hourly to journeymen electricians and S2.665 to their helpers; (2) employ electricians and helpers in the ratio set forth in that contract; i.e., one, helper for the first electrician and one to each three additional electricians;- and (3) - employ residents of the locality when "possible and practical," as provided _in the Union's contract with NECA. There is no dispute that the Respondent promptly began to comply with the four points. There is a dispute concerning whether the Respondent continued to comply. B. The issues On November 13 six of the Respondent's employees walked off the job because they believed that the Respondent was not (1) paying all helpers at the rate of $2.665 hourly and (2) maintaining the proper ratio of electricians to helpers. On the same day, the six men were discharged for having engaged in the walkout. The principal issues - are whether the Respondent was aware of the reason for the walkout and whether the walkout was a protected concerted activity for which the Respondent could not lawfully discharge the men. C. The events 3 Insofar as appears, the Union did not represent a majority of the Respondent's elec- tricians and helpers at the project, nor did the Union seek recognition as the exclusive representative of all such employees. On the other hard, upon two undisclosed dates following agreement upon the f-ir points, the Respondent telephoned William B. Tucker, a representative of the Union, and requested the referral of men. The six dischargees were all hired during July to October. inclusive, and at least four were union members. During July the Respondent had six electricians in its employ, and by November 113 the number had nearly tripled. The record does not disclose the number of helpers at particular times, but it is clear that their number also increased. Upon undis- closed dates, A. L. McDonald, an electrician and union member, noticed that an a The findings in this subsection are based upon stipulations or uncontradicted evidence. s The findings in this subsection are based upon uncontradicted evidence unless the contrary is shown by recitation and resolution of conflicts. H. B. ZACHRY COMPANY 1225 employee or employees, who were being paid less than the rate for helpers, were assisting an electrician or electricians or otherwise were doing work which McDonald regarded as properly the work of electricians or helpers. He mentioned the matter to Tucker. Subsequently, again upon an undisclosed date, the Respondent hired a father and two sons as laborers. Within a few days, one of the sons began to work with McDonald who thereafter reported to Tucker that the Respondent was breaching the 4-point agreement by having a higher ratio of helpers to electricians than that agree- ment provided and by paying some of the newly hired men less than the rate fixed for helpers. Another employee, George Arnold, Jr., a helper who began work on October 13 and who was being paid at the proper rate, appears to have noticed the father and a son, or the two sons, at work. Arnold reported to Tucker that two new employees working as helpers were being paid $2 per hour. Thereafter, Tucker tele- phoned A. F. Harper, a representative of CP & L with whom Tucker had dealt when the 4-point agreement was negotiated, and complained that the Respondent had hired new helpers in such number as to breach the agreed ratio of helpers to electricians. Harper replied that he would check the Respondent's payroll and call Tucker. On the next day (the date of which is not disclosed in the record), Hager called Tucker and said that the Respondent had 11 journeymen electricians and four helpers, and that the agreed ratio was being observed. Tucker responded that there were new employees who were doing electrical work and that those employees, regardless of their payroll classifications, were receiving $2 hourly, not $2.665, and were "throwing the helper ratio out of accord with the [4-point] agreement." There was some discus- sion concerning the work of the new employees, and Tucker argued that "pulling wire and cable trays, ... cutting and threading conduit, [and; assisting electricians in install- ing conduit in junction boxes" were types of electrical work that the new employees were performing. The conversation ended without agreement. During October, a day or two after Tucker and Harper conversed, Tucker visited the jobsite and protested to Spencer M. Jones, the Respondent's electrical superin- tendent, that the new employees were not being adequately paid and that the ratio of electricians to helpers had been breached. Tucker insisted that the new employees were working as helpers, that they should be paid $2.665, and that additional elec- tricians should be hired to conform to the proper ratio. On the other hand, Jones argued that the work of the new employees was properly that of laborers, not helpers, and that the Respondent had used laborers for such work at other jobsites. Tucker threatened to resume picketing unless the Respondent would comply with Tucker's interpretation of the 4-point agreement, and the conversation ended with Jones' state- ment that he would communicate with his superiors in San Antonio and thereafter call Tucker.4 Jones did not call Tucker, however, and several days later Tucker called Jones , who said that he had been instructed to continue using laborers to perform the work. Later during October, Tucker sought approval of the local Building and Construc- tion Trades Council (herein called Council) to resume picketing. Approval was denied then, and a meeting with CP & L was arranged. On October 23 Harper and two other representatives of CP & L met with Tucker and other union representatives. The Union's dispute with the Respondent was discussed but not resolved. During the latter part of October or early November, when there were rumors at the jobsite that picketing would be resumed, Jones approached McDonald, identified above as an electrician and union member, and asked about the rumors. McDonald replied that the rumors might be unfounded but that Tucker was unhappy because the Respondent was not complying with the 4-point agreement. Upon at least one other occasion, Jones and McDonald discussed the matter. In one conversation or the other, Jones said that it was the Respondent's policy to use laborers to pull wire. Another electrician and union member, W. C. Blackwell, spoke with Jones upon two or three occasions during November about the ratio of electricians to helpers. 4 The findings concerning the conversation between Tucker and Jones_ are based upon the former's testimony . On the other hand, Jones, who was called as a witness by the General Counsel under Rule 43(b) of the Federal Rules of . Civil Procedure, testified that Tucker talked with him and Carl L. Thompson , the Respondent 's project manager. According to Jones, Tucker "said that he considered pulling wire was electrician 's work in the cable pans." Jones did not testify further about the conversation , but the Respondent says in its brief that Tucker "indicated" that picketing might be resumed. Jones' testimony that Thompson was present is the only testimony to that effect. Thompson, a witness for the Respondent, did not testify concerning the conversation , but he testified in another con- nection that he had "no dealings" with Tucker prior to November 13. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'In-one instance , Jones inquired, and Blackwell answered that - there were too many rhelpers.a - - Or. November 6 Tucker received the Council's approval to resume picketing- It does not appear in the evidence that there was such resumption, however. Instead, other action was decided upon. On November 10, upon the conclusion of a union meeting, Tucker asked the members who worked for the Respondent to remain and -talk with him. McDonald, Blackwell, Arnold, and L. E. Douglass, Jr., remained. A decision was made that the men would walk off the job if the Respondent would -not cease its conduct which the men regarded as breaches of the 4-point agreement. On November 13 about 9:40 a.m., Jones and McDonald were speaking of a work -assignment when Jones asked, "How does Bill [Tucker] feel?" McDonald replied that Tucker felt "real bad" because the Respondent was "not living up to the agree- ment that was made with him," adding that "unless you do and straighten up, we are going to leave the job this morning." Jones said that he could not help it, that he was following the instructions of his "boss" in San Antonio. McDonald sug- gested that Jones speak with the "other boys," and Jones replied "O.K.," but when `they had walked to a point where McDonald had expected to find other union mem- bers, only Arnold was there. Jones then told McDonald to come to the office with the other men.7 About 20 minutes later, Me-Donald, Arnold, Blackwell, Douglass, A. O. Bullock, and Dalton McCain met with Jones and Carl L. Thompson, the Respondent's project manager. Four of those employees were electricians, and they ,constituted approximately one-fourth of -the electricians then employed by the Respondent at the jobsite. The principal issues concerning the conversation are (1) whether McDonald told Jones and Thompson why the men contemplated leav- ing, or would leave, the job, and (2) whether the employees gave Jones and Thomp- son reason to believe that they were quitting. According to the Respondent, the men voiced no reason for leaving the project and the Respondent concluded that they intended to quit their jobs. Jones testified, however, that McDonald acted as -spokesman for the men, and there is credible testimony by McDonald that he told -Jones and Thompson that the men would cease work unless the Respondent would get "things straightened out" in conformity with the 4-point agreement, that Thomp- son replied that he "hate[d] to see you boys do this," that McDonald then said that the men had "to go" until "things [were] straightened out," that Jones asked about their toolboxes and paychecks, and that McDonald answered that the men would leave the boxes because they were not quitting and that they would "pick up" their - paychecks which were due that day. The day was a Friday, a payday for the pre- -ceding week's work. Upon leaving the jobsite, the six men received those pay-- checks. They did not receive their paychecks for the workweek ending that day, 5 These findings are based upon the reliable testimony of McDonald and Blackwell who impressed me favorably. On the other hand. Jones testified under interrogation by the General Counsel that he did not discuss the 4-point agreement with McDonald or any other electrician . Under interrogation by the Respondent's counsel, Jones testified that none of the employees who walked out- on November 13 (McDonald and Blackwell were -among them ) ever came to him and complained about anything. I cannot credit Jones' testimony . The record is clear that -McDonald made reports to Tucker about alleged breaches of the 4-point agreement and that Tucker discussed the subject with Jones and representatives of CP & L. The record also-is clear that Tucker, in a conversation with -Jones, threatened to resume picketing, and the Respondent says in its brief, that there were threats or rumors of imminent picketing on several occasions . These facts, reflecting -events and rumors at the jobsite, lend weight to the testimony of McDonald and Blackwell that Jones engaged them in conversations about aspects of the 4-point agreement. More- -over, as will appear, Jones impressed me as an unreliable witness in testifying about events -on November 13. 6 On the other hand, the Respondent says in its brief that picketing was resumed during -November. - 7 The findings concerning this conversation between Tones and McDonald are based upon the latter's testimony. On the other hand, Jones testified that he told McDonald that he wanted to show McDonald the place at which certain work was to be performed, that :McDonald said, "Red, we are going to have to leave the job." that he asked, "What?" that McDonald repeated the remark, and that he responded, "O.K. Why don't you all come -over to the office and we will talk this over9" Jones testified further that he did not know whom McDonald had in mind by the use of the pronoun "We," that he also did not 'know why McDonald and others would leave the job, but that he did not ask that McDonald -elaborate . According to Jones, he "figured" that he would learn the identities 'of the amen later. H. B. Z ACHRY COMPANY 1227 nor did they -take their toolboxes, which reflect that they did not intend to quit their jobs permanently. In view of the Union's interest in the 4-point agreement and the various conversations which McDonald, Blackwell and Tucker had with Jones con- cerning alleged breaches of that agreement, I see no reason -to conclude that the six. men were unwilling to say to Jones and Thompson that they would leave the jobsite unless the Respondent would comply with their interpretation of the 4-point agree- ment. Moreover, there is convincing testimony that McDonald did explain then men's actions, and their departure without obtaining their tools and paychecks for work during that week reflect that they intended only to withhold their labor pend- ing settlement of the dispute. The Respondent's version of the conversation is recited in the footnote .8 Upon leaving the jobsite, the six men went to the union hall to see Tucker. He- was not there. They located him by telephone and he said that he would talk with them upon his return to the hall. Approximately an hour after the men left the jobsite, Jones also located Tucker by telephone. Jones told Tucker that the six men had left the job, asked why, and said that he needed their services and wanted them to return. Tucker answered untruthfully that he did not know why the men had left, adding that he would talk with the men and see Jones later that day .9 Tucker's explanation for the falsehood is that he wanted to talk with the men before talking with Jones. - - According to Thompson's testimony, about 12:30 p.m. on November 13, approxi- mately 1 hour after the conversation between Jones and Tucker, Thompson tele- phoned a superior at the Respondent's office in San Antonio and a,decision was made- to terminate the employment of the six men because "they were not there to work, they quit, they were gone." 10 At approximately 1:30 o'clock, Tucker met with Jones and Thompson at the jobsite. Tucker said that the men had walked off the- job, because some persons working as helpers were being paid $2 per hour instead of S2.665 and that the ratio of helpers to electricians was not in accord with the 4-point agreement. Tucker inquired about reinstatement of the six mien, and Thomp- son replied that he would contact his superiors in San Antonio and thereafter inform, Tucker of a decision concerning reinstatement, the -ratio, and the rate of pay i1 8 Thompson testified that he inquired what the trouble was, that Blackwell and one or two other men replied that "they had to go in," that Thompson asked for an explanation, and that the reply was repeated. Jones' testimony substantially supports that of Thomp- son, although Jones testified additionally that McDonald acted as spokesman for the men and that all six men said that "they enjoyed `working for Zachry Company, that [the Respondent had] treated them nice and that they would rather work for [the Respondent] than anybody." Thompson was not asked whether anything was said about tools or pay- checks, but Jones testified that there was no mention of tools or a later return to work. 9 The findings concerning the telephone conversation between Jones and Tucker are based largely upon the latter's testimony. Jones testified that he asked why the men had left the job and that Tucker replied that Tucker did not know but would ascertain the facts and visit the jobsite to see Jones. Jones testified further that he said nothing about wanting the men to return to work, but it is clear from other testimony by Jones that the- men were capable, that their services were needed, and that Jones wanted them to remain on the job. - 10 There is no evidence in contradiction of Thompson's testimony that the decision to discharge the six men was made about 12:30 o'clock. Nevertheless, I am not required to credit such testimony because `Thompson was not a reliable witness. 21,L.P.-B. v. Howell Chevrolet Company, 204 F. 2d 79, 86 (C.A. 9) ; N.L.14.B. v. Wa lton Manufacturing Coin- pany and Loganville Pants Co ., 369 U.S. 404, 408. n The findings concerning the conversation at 1:30 o'clock are based upon Tucker's testimony. Thompson, testifying for the Respondent, did not dispute Tucker's testimony that Tucker explained the reasons for the walkout. With respect to reinstatement, Thomp- son testified that Tucker -asked -whether the men could return to work, that he did not tell Tucker that a decision already had been made to terminate the men's employment, and that instead he fold Tucker that he would "let [Tucker] know before the day was over what decision -was made on the men." Thompson testified that his failure to disclose that a decision had been made was because he had "had no dealings with Mr. Tucker" and he "had nothing to account to Mr. Tucker." Turning to Jones' version of the conversation, Jones testified that Tucker spoke of the 4-point agreement and said that "he was protesting- the laborers pulling wire" and cable. According to Jones, he understood that Tucker- alone was protesting and that the walkout was unrelated to the protest. Thus, Jones testified that during the conversation Tucker did not say "why the men walked off the job." that Jones did not ask why although earlier that day he had asked, that Tucker "never- did tell" him why, and that, as late as the morning of the hearing when he testified, he- 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 3 o'clock that afternoon, Jones telephoned Tucker, saying that the employment -of the six men was terminated and that Tucker should tell them to "pick up their tools and their final check[sl."-12 At "around 4:00" o'clock, so Jones testified, he filled out termination forms for the men. Each form contains spaces in which to designate whether the employee was discharged or quit. In each instance, Jones wrote that the employee was discharged for having walked off the job, and in each instance he noted that he would not rehire the employee. About the same hour, Tucker telephoned McDonald and said that McDonald should obtain his tools and paycheck because McDonald's employment had been terminated. McDonald went to the jobsite that afternoon, obtained his tools, signed his termination form, and received a paycheck from Jones, who expressed sorrow that "it had to happen." McDonald expressed the same view and the two men said that there were "no hard feelings between" them i3 At undisclosed times, the remaining five men signed their termination forms and were paid. None of the men personally asked for reinstatement, so Jones testified, but there is testimony by McDonald that upon an undisclosed date after November 13 Jones told him that he was ineligible for rehire. About November 15 or 16, accord- ing to Jones, he employed replacements for the six men. D. Conclusions The above findings of fact reflect that the six employees walked off the job in pro- test against the Respondent's breach of the 4-point agreement, as they and the Union interpreted that document, and that the Respondent discharged them therefor. The walkout was concerted action, a strike by the six employees, and it had the approval of the Union. The initial question arises from the Respondent's contention that the walkout was unprotected activity because it breached Section 8(b) (4) (D):U Accord- ing to the Respondent, the purpose of the walkout was to force the assignment of work in violation of that section which provides, insofar as pertinent, that it shall be an unfair labor practice for a labor organization to strike with an object of: forcing or requiring any employer to assign particular work to employees in a particular Iabor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft; or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work= Section 10(k) is relevant to the Respondent's contention. It provides that whenever a charge has been filed alleging a violation of Section 8(b) (4) (D) : - the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. Sections 8(b)(4)(D) and 10(k) were designed to resolve competing- claims between rival groups of employees for specific work, not to settle disputes between employers and labor organizations concerning wages and other working conditions when no such competing claims exist. International Typographical Union and Pueblo Typographical Union, Local No. 175, AFL-CIO (Rocky Mountain Bank - rote Com- pany), 145 NLRB 921, 924; Wood, Wire & Metal Lathers International Union Local No. 32c', AFL-CIO (Acoustics & Specialties, Inc.), 139 NLRB 598, 601. In the instant case, it was not the Union's object to obtain for its members the particular work which was being performed by laborers, nor was it the Union's object to have still did not know why . Jones ' testimony that he did not understand that-the six men were involved in Tucker's protest and that he remained ignorant of the reasons for the walkout until the date of the hearing is incredible . Finally, Jones testified that Tucker asked whether the men could return to work, to which he and Thompson said that they d,d not know and that later they would advise Tucker. 12 Tucker so testified. He fixed the hour of the conversation as 3 o'clock. Jones testi- fied that he telephoned between 2 and 4 o'clock and that he said to Tucker that "the men walked off the job and we considered they quit; they could come by and pick up their checks whenever they desired." McDonald so testified . Jones did not testify concerning the conversation. I& It does not appear that a charge was filed alleging a breach of that section. H. B. ZACHRY COMPANY 1229 such work assigned to electricians except to the extent that the Union urged that -additional electricians be hired to restore the proper-ratio of electricians to helpers as the Union interpreted the 4-point agreement . - As to the laborers who were doing The particular work, the Union's object was to achieve the elevation of their wage rates to the Union's scale for helpers that was set forth in that agreement. The Union's object, in sum, was to force compliance with its interpretation of the 4-point .agreement, not to resolve a dispute that was cognizable by the Board under Sections 8(b)(4)(D) and 10(k). The Respondent asserts, however, that its assignment of 'particular work to individuals whom it compensated at -less than the Union's scale for helpers was consistent with both the prevailing practice in Corpus Christi and the Respondent's practice at jobsites elsewhere, and, therefore, that the Respondent .did not breach the 4-point agreement. I do not believe that I need decide whether the Respondent breached that agreement. It may be noted, however, that (1) the record does not contain evidence that establishes a prevailing local practice, and (2) the Respondent's practice at jobsites elsewhere, insofar as appears, may have resulted solely from unilateral determinations by it, not from any -agreement with a labor -organization. It suffices to decide, as I do, that the Union's and the Respondent's different interpretations of the 4-point agreement, while resulting in a dispute over working conditions, did not result in a dispute within the scope of Sections 8(b) (4) (D) and 10(k). It follows that the walkout of the men, which was a strike over working conditions, was not an unprotected activity and that the Respondent could not validly discharge them for having struck. We do not have the question whether the strike was an economic one in which the participants ran the risk that the Respondent, while taking no disciplinary action against them, might ill their jobs with new employees. This is so because the Respondent discharged them 2 or 3 days before hiring replacements. Cf. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9.15 -I find that the Respondent, by discharging the men who engaged in the walkout, interfered with, restrained, -and coerced them in the exercise of their Section 7 rights, and discouraged membership in the Union, thereby violating Section 8(a)(1) and (3). - lv. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and that it take affirmative action to effectuate the policies of the Act. I shall recommend that the Respondent offer Arnold, Blackwell, Bullock, Douglass, McCain, and McDonald immediate and full reinstatement to their former or substantially equivalent positions (The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, '65 NLRB 827), without' prejudice to their seniority or other rights or privileges, and that the Respondent make each of them whole for any loss of pay he may-leave suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination, to the date -of a proper offer of reinstatement, less his net earnings (Crossett Lumber Company, 8 NLRB 4d0, 497-498) during said period, the pay- ment to be computed on a quarterly basis in the manner established in N.L.R.B. ro. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, with interest at 6 percent per annum, Philip Carey Manufacturing Company, Miami Cabinet Division V. 1V.L.R.B., 331 F. 2d 720 (C.A. 6).16 I shall recommend also that the Respondent 15A portion of the cited opinion should be quoted - in respect to another point. Assuming arguendo that when the six men walked off the job" they did not give the Respondent a reason for the walkout , the facts remain that ( 1) the Respondent already knew of the Union 's dissatisfaction with the Respondent's interpretation of the 4-point agreement, and (2) on November 13, about 1:30 o'clock. prior to Jones'-filling out the employees' ter- mination forms , Tucker explained to the Respondent the reasons for the walkout. At 370 .U.S. 9. 14, the Court said: We cannot agree that employees necessarily lose their right to engage in concerted activities under Â§ 7 merely- because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of Â§ 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. 1e If any of the dischargees should currently be. serving in the Armed Forces of the United States, the Respondent shall notify him promptly of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended. Eackpay to a dischargee shall be tolled for the period of his military service. 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preserve and make available to: the Board or its agents, upon request, for examination and:copying, all payroll records, social security payment records,-timecards, personnel records-and reports, and all other records necessary to analyze the amounts of back- pay due and the rights to reinstatement under the terms of this Recommended Order. In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend further- that- the Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section. N.L.R.B. v. Express Publish- ing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW A 1.-The Union is a labor organization-within the meaning of Section 2(5) of the Act. 2. By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the exercise of their rights under -the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1 ) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, H. B. Zachry Company, its officers, agents, successors, and assigns, shall: -1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Electrical Work- ers, Local Union No. 278, AFL-CIO, or in any other labor organization of its employees, by discharging any of its- employees because of their union or concerted activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 17 (a) Offer George Arnold, Jr., W. C. Blackwell, A. O. Bullock, L. E. Douglass, Jr., Dalton McCain, and A. L. McDonald immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make each of them whole, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Recommended Order, as set forth in said "remedy" section. (c) Post in conspicuous places at its place of business in Corpus Christi, Texas, including all places where notices to employees customarily are posted, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for Region 23, shall; after being duly signed by the Respondent's, representative, be posted by_it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days -thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. - - (d) Notify said Regional- Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent las taken to comply herewith 19 17If the Respondent has completed its work in Corpus Christi, and any party believes that for that reason there should be a modification- of any ai--_.rm-ative-action recommen- dation herein, the matter may be submitted to the Beard within the time fixed for filing exceptions. - 18 If this Recommended Order should -be adopted by the Board. the words "as ordered by" shall be substituted for "as recommended by a Trial Examiner of" 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 "a Decree of the United States Court of Appeals, Enforcing an Order of" shall be inserted immediately following "as ordered by." 19 If this Recommended Order should be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writ-ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." PACIFIC MARITIME ASSOCIATION " - - 1231 APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of rights guaranteed to them by the National Labor Relations Act: WE WILL NOT discharge any of our employees because they engage in activ- ities on behalf of International Brotherhood of Electrical Workers, Local Union No. 278, AFL-CIO, or any other labor organization. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice and to engage in union activities , or not to join a union and not to engage in such activities. WE WILL offer George Arnold, Jr., W. C. Blackwell, A. O. Bullock, L. E. Douglass , Jr., Dalton McCain, and A. L. McDonald immediate and full rein- statement to their former jobs, or equivalent ones, and pay them backpay to cover the earnings which they lost because we discharged them. All of you are free to become or remain, or to refrain from becoming or remaining, members of International Brotherhood of Electrical Workers, Local Union No. 278, AFL-CIO, or any other labor organization. H. B. ZACFRY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-If any of the above-named employees should currently be serving in the Armed Forces of the United States, we will notify him of his right to full reinstate- ment upon application after -discharge from the Armed Forces, in accordance with the Selective Service Act and Universal Military Training and Service Act of 1948, as amended. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any material. If the employees have any questions concerning this notice or whether the Employer is complying with its provisions , they may communicate with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston, Texas, Telephone No. Capital 8-0611 , Extension 296. - - Pacific Maritime Association and Johnson Lee, James Cagney, Wilbert Howard , Jr., Adrian McPherson, Kenneth Vierra International Longshoremen 's and- Warehousemen's Union, Local No. 10 and Johnson Lee, James Cagney, Wilbert Howard, Jr., Adrian McPherson, Kenneth Vierra. Cases Nos. 20-CA-787, 20-CA-2788, 20-CA-2796, 20-CA.-2176- 20-CA-2796-3, 2O-CB- 1121, 20-CB-1122, 20-CB-1124, 20-CB-1124-2, and 20-Ch-11294-3. November 29,1965 - DECISION AND ORDER On May 4, 1965. Trial Examiner Herman Marx issued his Decision in the above-entitled consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents each filed exceptions to the Trial Examiner's Decision and a brief in support 155 NLRB No. 117.