J. P. Wetherby Construction Corp.

National Labor Relations Board - Board Decisions

May 25, 1970

182 N.L.R.B. 690 (N.L.R.B. 1970)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Wetherby Construction Corp . and Charles Raikes.
Case 38-CA-735
May 25, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On January 23, 1970, Trial Examiner Harry H. Kuskin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in any
unfair labor practices alleged in the complaint, and rec-
ommending that the complaint be dismissed in its entire-
ty, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the
Decision and a supporting brief, and the Respondent
filed cross-exceptions to the Decision and a supporting
brief.
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 con-
nection with this case to a three-member panel.
The Board has reviewed the rulings made at the
hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has consid-
ered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations
of the Trial Examiner,' except as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its entirety.
' For the reasons stated in his dissenting opinion in Thor Power
Tool Company, 148 NLRB 1379, 1381-83, the relevant facts of which
parallel those herein, Member Brown would not reach the merits of
the instant case but would defer to the freely chosen contractual reme-
dy-arbitration
' The Trial Examiner concluded, inter alia, that the last sentence
of art. IX, sec 1, of the contract, when viewed most favorably to
the complainant, "speaks of a strike caused by the contractor's discrimi-
nation , i e , an unfair labor practice strike " As this conclusion
is unnecessary to our decision herein , we do not adopt it or the
remainder of the paragraph in which it appears . For the same reason,
we do not adopt the last sentence of fn 33 of the Trial Examiner's
Decision
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceeding
was heard at Ottawa, Illinois, on November 17 and
18, 1969. A complaint issued herein on September 17,
1969, based on a charge filed on August 15, 1969. The
complaint alleges that Respondent terminated Charles
M. Raikes, the Charging Party herein, on or about
August 8 , 1969, and thereafter refused to reinstate him,
all because he assisted Local Union 393, Laborers'
International Union of North America , AFL-CIO, herein
called the Union or Local 393 , or engaged in other
protected union or concerted activity . Respondent's
answer , as amended at the hearing , denies that it has
violated the Act in any respect alleged herein ; it also
contends as a separate defense that , as of the time
of the issuance of the complaint herein , Respondent
and the Union had already invoked the grievance and
arbitration provisions of their existing exclusive bargain-
ing contract applicable to Raikes and were then in the
process of selecting a mutually agreed -upon arbitrator
to determine whether Raikes had been terminated "for
good cause" or for engaging in union or concerted
activity , and that , in such circumstances , the Board
should defer this matter to the arbitration process.I
Upon the entire record ,2 including my observation
of the witnesses , including their demeanor while on
the witness stand , and after due consideration of the
briefs of the General Counsel and Respondent, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that
it is a Delaware corporation engaged in the business
of earth grading , paving, and general construction, with
its office and place of business in Ottawa, Illinois; and
that, during the 12 months preceding the complaint,
whith is representative of its operations at all times
material herein, it performed services valued in excess
of' $50,000 for customers at points outside Illinois, pur-
chased and caused to be transferred and delivered from
outside Illinois to its Illinois facility and Illinois jobsites
goods and materials valued in excess of $50,000 and,
in addition, purchased from enterprises within Illinois
and transferred and delivered to its Illinois facility and
jobsites in excess of $50,000 worth of diesel fuel and
other goods and materials received by these enterprises
directly from outside Illinois. I find, upon the foregoing,
as Respondent also admits , that Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent agrees , and I find , that Local Union 393,
Laborers ' International Union of North America,'
AFL-CIO, is a labor organization within the meaning
of the Act.
' Respondent, however, did not urge this separate defense in its
brief herein. In any event, in view of my findings hereinafter, I find
it unnecessary to pass upon the merits of this separate defense.
R As corrected in accordance with the unopposed motion of Respond-
ent to correct the transcript, filed herein on December 29, 1969, and
which I hereby grant
182 NLRB No. 103
J. P. WETHERBY CONSTRUCTION CORP. 691
III. THE ALLEGED UNFAIR LABOR PRACTICE
1. Sequence of events leading up to the discharge of
Charles Raikes3
Sometime prior to July 23, 1969, Respondent was
awarded a contract by the State of Illinois and the
United States Government for coring-out and blacktop-
ping work on Interstate Highway 80. The work was
to be done in LaSalle ' County, Illinois, and required
the services of laborers and certain crafts. So far as
the laborers work was concerned, it fell within the
jurisdiction of three locals of the Laborers' International
Union of North America, namely, Local Union No.
911, or the Ottawa local; Local Union No. 393, or
the Marseilles local; and Local Union No. 1203, or
the LaSalle local. In accordance with the current agree-
ment between Illinois Valley Contractors Association,
of which Respondent is a member, and the Ottawa
and Marseilles locals, and the Northern Illinois Laborers'
District Council of the Laborers' International Union
of North America, a prejob conference was held on
July 23, 1969," in relation to the work to be done
on Interstate Highway 80. Present for the Association
was Joseph Marchesi, its executive secretary; represent-
ing Respondent were Fay O. Manigold, its vice president
and treasurer, and Roy Spence, its executive vice presi-
dent; and representing the Marseilles, Ottawa, and
LaSalle locals were Business Agent John Brandow, Act-
ing Business Agent Joseph Herrera," and Ralph Newell,
respectively. During the meeting, it was agreed that
the laborers work was to be divided among the Mars-
eilles, Ottawa, and LaSalle locals on a 3, 2, and 1
ratio, respectively; and it was further agreed that
Respondent was to channel its request for laborers
through Herrera of the Ottawa local and that he would,
in turn, call the other business agents to supply their
respective local's share of laborers. There was also
some discussion at the meeting relative to so much
of the provision of article IV, A, of the agreement
which provides that ". . . the Employer may have
one key man [herein called a crew leader] employed
for up to six men . . ." with Respondent taking the
position that it was its prerogative under the contract
to appoint the crewman, and with Brandow disputing
the same and requesting the crew leader's job for himself.
The matter was resolved by Respondent accepting Bran-
dow as its crew leader, but without yielding on its
interpretation of the contract.
Respondent began to recruit laborers for the Highway
80 job on July 30. On that date, Manigold requested
Herrera to furnish four laborers. In response thereto,
four laborers reported at Respondent's Ottawa office
the next day, a Thursday, and were put to work. One,
Ray Prez, who had previously worked for Respondent
for a number of years as a laborer was already on
9 Unless otherwise indicated, the findings hereinafter are based on
undenied or uncontroverted testimony , which I credit
All dates hereinafter are in 1969
Business Agent Martin Miller was ill at the time and could not
attend
the job when these four men arrived. On Monday,
August 4, Manigold requested three more laborers from
Herrera and specifically asked for Brandow and one
Carlson, if Herrera was going to send laborers from
the Marseilles local. Both Brandow and Carlson had
worked for Respondent before." At the scheduled report-
ing time of 8 a.m., on August 5, only one laborer
reported at Respondent's office; this laborer is uniden-
tified in the record but it is apparent that he was neither
Brandow nor Carlson. This laborer was hired and put
to work. A little later that morning, at 8:15, Charles
Raikes and Junior Roy Couch reported at Respondent's
office, also in connection with Respondent's request
for laborers of August 4. Respondent refused to hire
them because they were not the men requested by
it, and because the laborers crew had already left for
the jobsite. Raikes and Couch left the office. Thereupon,
Manigold telephoned Brandow and inquired as to why
he had not reported as crew leader in accordance with
their understanding and learned that Brandow could
not accept the job because of his duties as business
agent of the Marseilles local. At this, Manigold tele-
phoned Herrera, complained because he had not been
furnished the men requested on August 4, asked that
Herrera furnish two laborers on August 6, and advised
that he already had Ray Prez on the job and that
Prez was the crew leader.
During the afternoon of August 5, representatives
of Local 393 and Respondent met in Manigold's office
to discuss certain alleged pay shortages on another,
unrelated job. In the course thereof, Brandow claimed
that Respondent was calling laborers directly and Mani-
gold replied by referring to Respondent's "right to call
back men within 180 days who worked for [it] and
are available." This interpretation was disputed by one
of the union representatives allegedly because it would
result in circumventing the hiring procedure of the exist-
ing agreement. Manigold then gave Brandow a list of
five such employees who were satisfactory and had
not been working. After the meeting, Manigold tele-
phoned Herrera and gave him these five names and
requested that Herrera refer the two laborers theretofore
requested for the following day from among these five
individuals. Neither Charles Raikes nor Junior Roy
Couch was on this list. With respect to Raikes, the
record shows that he had worked for Respondent on
another job during the month of July and up to August
1; that, after being on the job for 2 or 3 days, there
were enough additional hires of laborers to warrant
the appointment of a nonworking crew leader; and that
Samuel C. Watts, Respondent's foreman on that job
" Sec IV, B, of the above- mentioned agreement provides in this
connection as follows
The Contractor shall have the right to call back to his employment
any person who has worked for him as a laborer within a six
(6) months period ( 180) days immediately preceding the time he
is called back providing he is available Before the Contractor
executes this right he shall notify the Union as to when and
where this person is to be employed It is not the intention of
the contracting parties to use Section B for the purpose of calling
men back to the job when they are employed at other employment
while the union has other men unemployed
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as this one, appointed him nonworking crew
leader.7
Respondent's request for referrals from the five labor-
ers on the list prepared by it was not honored. Instead,
Charles Raikes and Junior Roy Couch were dispatched
to it again on the morning of August 6. They arrived
at Respondent's office at 7:55. There they found Spence,
Manigold, and Watts. Spence inquired of Raikes as
to why he had been dispatched when Respondent had
not put in a request for him . In the ensuing discussion,
Raikes indicated that he was to be the steward on
the job and exhibited a steward's button which he took
from a pocket in his trousers. Thereafter, Spence and
Manigold conversed out of the hearing of the two appli-
cants and decided to hire them. Watts was in and
out of the office during the above episode and he denied
either seeing Raikes show a steward's button or knowing
that he was to be the steward on the job. However,
irrespective of whether Watts saw the button as it was
being shown by Raikes, I am satisfied, and I infer,
and find that Watts knew that Raikes was to be the
steward. I so find, in view of the fact that Watts was
the foreman on the job, the fact that he was charged
by Spence with taking, and did take, ,Raikes and Couch,
once they were hired, to the jobsite, the fact that Watts
did not thereafter question Raikes' authority when he
acted shortly thereafter as would a job steward in speak-
ing in behalf of the laborers on the jobsite, and the
fact that Watts reacted to his complaints as though
Raikes was, in reality, the steward on the job.
When Raikes and Couch arrived at the jobsite, which
was then located on Interstate Highway Route 80, about
1'r miles west of the intersection of this route and;
Route 23, their first assignment was to join the other
laborers on the site in putting up signs and securing
them with sandbags or whatever was necessary. Coring-
out" began about 11 a. m. _ At that time, Raikes was
assigned to the job of flagman and Couch was assigned
to move ahead of the coring machine and to remove
the barricades as needed.
So far as appears, notwithstanding the above assign-
ments that morning, Raikes took time to register several
complaints with Watts. After being on the job a very
short while," Raikes complained that the Ottawa local
had one more laborer on the job than it was entitled
to have under the prejob conference arrangements,"'
and that the crew leader should not be Ray Prez, a
laborer out of Local 911, the Ottawa local, but a laborer
out of Local 393, the Marseilles local. After conferring
with Watts, Raikes went to a trailer court about 250
' In this respect , art XIV, sec. A, of the current contract provides
that "There shall be a crew leader on all jobs where there are six
(6) or more men employed , when eight (8) or more men are employed,
the crew leader shall become a nonworking crew leader
" This involved the taking out of gravel with a coring machine along
the inside shoulders of the highway
' Raikes testified at one point that this occurred at 8 30 and at
another point that this took place about 25 minutes after he arrived
on the jobsite I find, in view of the inherent probabilities of the
situation , that this occurred at or about 8 30
10 There were six laborers on the job and the Ottawa local had
furnished three of them instead of the Marseilles local
feet away and telephoned Business Agent Brandow at
the union hall in Marseilles and advised him of the
situation. The sequel to this was a meeting on the
jobsite about 9:15 that morning between Brandow and
Raikes for Local 393 and Manigold and Watts on behalf
of Respondent. Brandow there raised the matter of
Ray Prez's elevation as crew leader and also the distribu-
tion of laborers among the three locals. Brandow claimed
that the prejob agreement was being violated and this
should be corrected, but Manigold took the position
that,he would make no changes.
The next episode between' Raikes and Watts that
morning took place at 10:30. Raikes then approached
Watts and pointed out that there were no toilet facilities
on the job and that Watts would have to see that
this was remedied. To this, Watts replied that, before
doing anything, he had to get the "OK" from the
office. Raikes received the same answer from Watts
to his mention of the obligation of Respondent to furnish
a heated place for the employees to eat their lunch.
Raikes confronted management with another com-
plaint that same afternoon. Thus, about 2 o'clock,
according to Raikes, upon noticing that Executive Vice
President Spence was using a level (a measuring device
with a glass indicator) to check the grade of the road
near the coring machine, he approached Spence, who
was with Watts, told him that he, Spence, was doing
the work of a laborer and should stop doing so. Also,
according to Raikes, Spence did stop and agree to get
a laborer to do it but only after becoming pretty angry
and manifesting his anger by throwing the level into
his pickup truck. As to the foregoing, Spence admitted
using the level on that occasion to check the grade
in several places and that Raikes approached him and
told him that he was doing laborer's work, which he
acknowledged. However, he denied getting angry and
specifically denied Raikes' testimony that he took the
level and threw it into the pickup truck thereby manifest-
ing his anger." Watts did not testify concerning this
incident. However, according to Watts, that afternoon
Raikes took a level and was going to "run the level,"
at which point he intercepted Raikes and told Raikes
that he, Watts, was assigning the men and that Raikes
was to act as flagman . In all these circumstances, and
as Spence impressed me both as one who would be
more apt to keep his temper than Raikes, and as a
more forthright witness than Raikes, I find that Raikes'
testimony on this incident is credible only to the extent
of Spence's admissions.
August 7 was a scheduled workday for Respondent's
employees on the Interstate Highway 80 job, but no
work was done that day. Charles Raikes and the other
two laborers from Local 393, namely, Couch and Marvin
Raikes, the brother of Charles,12 arrived on the job
at 8:05 that morning , although starting time was at
8 o'clock. The laborers from the other two locals had
" Spence pointed out that the level can break if it is thrown
12 As heretofore , I shall continue, to refer to Charles Raikes by
his full name or by using Raikes When referring to Marvin Raikes,
I shall use either his full name or Marvin
J. P. WETHERBY CONSTRUCTION CORP.
arrived on time and were not yet working. When the
threesome arrived, the crew was then complete and
Watts asked the laborers to go to work. Raikes inquired
from Watts whether corrections had been made "in
the discrepancies on the previous day"13 and Watts
answered in the negative. Raikes thereupon said that
the laborers would not go to work "until some grievances
. . . that had to be settled." Raikes then left to make
a telephone call to Brandow, the business agent of
Local 393, and Watts called Respondent's office.'"
The first to arrive on the scene, after these telephone
calls, was Fay 0. Manigold, the vice president and
treasurer of Respondent. Manigold sought, without suc-
cess, to get the laborers to go to work, pointing out
that there was work available."' Brandow and Herrera,
the acting business agent of Local 911, appeared soon
thereafter. The discussion that ensued took place in
Brandow's car. It had just begun to rain at this point.
The discussants were Brandow, Herrera, Raikes, and
Manigold.`" The discussion took about 30 minutes but
proved abortive. Manigold then left the scene without
saying anything to the laborers, although it had begun
to rain hard by that time and Brandow had sought
to get him to tell the 'men whether or not they should
go home. All the laborers left about 10 minutes later,
by which time all the company officials had apparently
left."
The next day, Raikes, his brother Marvin and Couch
arrived on the job'' around 8:25 or 8:30; the other
" As heretofore found, the complaints then pending related to (1)
the absence of toilet facilities, (2) the need for a heated place to
eat lunch , (3) the demand that Respondent replace its then crew leader
with a laborer from Local 393, and (4) the claimed failure to observe
the arrangement at the prejob coference with respect to the distribution
of laborers among the three Laborers' locals on the job
19 The above findings are in accord with the testimony of Watts
who impressed me as a more reliable witness than Raikes Thus, Raikes
was less specific than Watts in detailing when he and the others in
his group arrived, saying only that it was about 8 o'clock And while
Raikes did not testify that he made the correction of the "discrepancies"
a precondition to the laborers going to work , that was what eventuated;
and Raikes failed to deny the direct statement to that effect attributed
to him by Watts
is In this connection , Manigold ' s testimony differs from that of Watts,
who was present at the time, as to whether any mention was made
of the grievance procedure by Manigold Manigold testified that he
told the men that, if there was any grievance , it would be settled
by arbitration and that he also mentioned to them a meeting which
had already been set for August 12 to arbitrate a grievance in a matter
arising on a different job Watts , however, denied that anything was
said about a grievance procedure As Watts impresed me as a more
credible witness than Manigold , I find, contrary to Manigold, that
he made no mention of a grievance procedure during his appeal to
the laborers to return to work
'" Although Spence also came out to the jobsite , he, like Watts,
did not join in these conversations , which involved the "discrepancies"
listed above.
" I attach no significance adverse to Respondent because of Mani-
gold's failure to issue some instructions to the laborers They had,
as heretofore found, already rebuffed his efforts to get them to go
to work that morning before the rain had started , and so far as appeared
they had not changed their position , and Manigold ' had no reason
to believe otherwise.
" According to the testimony of Raikes and Couch , both of them
came to work with Marvin Raikes in the latter ' s car, and the lateness
of all three of them was caused by a flat tire along the route . Brandow
testified , in this connection , that he came upon these three laborers
while they were fixing the flat tire and picked up Raikes and took
693
laborers had arrived before the 8 o'clock starting time.
It is apparent, and I find, from what occurred after
their arrival, that they had no intention that morning
to start work upon arrival but were going to await
developments with respect to the claimed discrepancies.
Thus, while all the laborers were standing by, Raikes
inquired from Watts as to whether there had been any
changes with respect to the claimed violations. Upon
learning from Watts that he, Watts, had been told by
his office that there would be no changes, Raikes again
indicated, as he had the day before, that he would
have to report this to Brandow. Shortly thereafter, Mani-
gold arrived on the scene, together with Spence, having
been alerted by Watts before 8:30 of the absence from
work, as of that time, of the Raikes brothers and Couch.
Manigold again made overtures to the laborers to go
to work, saying that work was available, and again
was unsuccessful, being told by the laborers that they
had problems to talk over before they go to work.
The next significant development occurred on or about
9:15 that morning. By that time, Brandow, Herrera,
and Joseph Marchesi, the secretary of the Illinois Valley
Contractors Association, of which Respondent was a
member, arrived on the scene. Marchesi had come at
the instance of Manigold. A composite of the credible
testimony of Raikes, Brandow, Manigold, Marchesi,
and Spence establishes, I find, that the following then
took place: At first, Spence spoke to Brandow, Herrera,
and Raikes as the latter three were sitting in Brandow's
car. He inquired as to what the trouble was and Brandow
replied that there was, inter alia, an unfair distribution
of laborers among the three locals and that Prez was
improperly designated as crew leader. Spence, as had
Manigold the day before, refused to yield on the crew`
leader issue , asserting Respondent 's contractual preroga-
tive. Thereafter, the discussion continued outside the
car and included Manigold and Marchesi as participants.
However, no real progress was made on the problems
at hand. Thus, Marchesi, as had Manigold and Spence
before him, supported Respondent's position on the
crew leader on the ground of contractual prerogative
and urged that, if there was any grievance in this respect
or as to the other things raised, they shoud be taken
up at the meeting involving the same parties on another
grievance arising on another job which had been sched-
uled for August 12. Marchesi then added that since
these unresolved matters could be resolved under the
grievance procedure of the existing contract, the men
should now go to work. At this, Raikes left the group
and huddled with his brother and Couch. Shortly there-
after, Raikes walked over to Watts and said that "[he]
wasn't feeling good and [he] was going home." He
was followed by Couch and by his brother Marvin,
each of whom separately reported to Watts that he
was feeling sick and was going home. Whether they
were in fact sick or were engaging in a strike is a
contested issue in the case.
him to the jobsite . Apparently Brandow did not remain at the jobsite
with Raikes It is clear that Marvin Raikes and Couch arrived thereafter
on their own
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Raikes left the jobsite with Brandow in the
latter's car. Marvin Raikes and Couch left in Marvin's
car. Thereupon, according to Spence, he appealed to
Herrera to get replacements for this threesome. Herrera
replied that he was unable to get replacements at that
hour but said he would call Martin Miller, the business
agent . When Miller arrived, in response to this call,
he cchoed:Herrera's view that replacements could not
be obtained at that hour. Miller then approached the
other laborers and sought to get them to go to work.
The men refused to go to work, indicating concern
that they would suffer reprisals in the form of physical
harm or damage to their homes should they do so.
According to Watts, he had also asked the remaining
laborers to go to work but 'was met with a refusal
on the same ground of their fear of the consequences,
if they did. Because of the above, according to Manigold,
he decided that it woud be useless to try to get work
going that day and so informed Miller, indicating that
the job would be shut down until after the meeting
of August 12. As already found, this meeting had already
been arranged for the purpose of resolving a grievance
relating to another job. However, the record also disclos-
es that an understanding was thereafter reached on
either August 6 or 7 between Marchesi and Melvin
Rogers, the Laborers' International representative, to
take up at this meeting the problems that had arisen
on the Interstate Highway 80 job.
Raikes had indicated on August 8, on leaving because
of his claimed illness, that if he felt better, he would
report to work on Monday morning , August 11. Howev-
er, the record shows that he did not, appear at the
jobsite on Monday as he had learned in the interim
from Bradow that there would be no work on the
job on Monday and that there would be none until
after the meeting of August 12. It is also clear that
the job was shut down' on both August 11 and 12
and that work was resumed on August 13.
2. Respondent's decision to discharge Raikes
The August 12 meeting was held at the office of
the Illinois Valley Contractors Association. Among the
individuals present were Manigold, Spence, Marchesi,'"
Watts, Brandow, Rogers, Miller, Raikes, and Richard
D. Curren , assistant to the Executive director of the
Associated General Contractors of Illinois.211 During the
meeting, discussion was had concerning . the matters
in dispute between Local 393 and Respondent on the
Interstate Highway 80 job as of August 8, namely,
the distribution of laborers work among employees of
the three Laborers' locals, the propriety of the designa-
tion of Prez as the crew leader, a place to eat for
1" As already found, Marchesi was assistant secretary of'the Illinois
Valley Contractors Association.
m In response to an inquiry by Rogers, Curren explained that he
was present because he was a representative of the above organization
and also a member of Respondent ' s "side of the panel " in connection
with the arbitration of certain disputes that had arisen uder the Local
393 contract I find that Curren was' referring to the panel named
in order to consider matters that had arisen on a job other than the
Interstate Highway 80 job '
,the laborers, and the matter of pay claimed to be due
to Raikes and Couch for showup time on August 5,
when both of them reported for work pursuant to a
referral by Local 393 but were refused hire.21 These
matters were discussed at some length largely in response
to questions posed by Curren,who sought to familiarize
himself with the facts and with what the representatives
of the unions were asking Respondent to do in order
to have work resumed on the job. Subsequent thereto,
Curren announced that he "intended to recommend
the company they discharge Charles Raikes for leading
and participating in a walk-out that morning." Curren
thereupon called for, and held, "a caucus" among
Respondent's representatives. Upon resuming the meet-
ing, Curren announced the conclusions reached in cau-
cus, namely, that Marvin Raikes should be the crew
leader `,`if it was all right with the other locals," that
Respondent would pay Raikes and Couch showup time
wages for August 5, and that Respondent "had decided
to discharge Charles Raikes for leading and participating
in a work stoppage on August 8." There was immediate
objection by the union representatives to the decision
to discharge Raikes. After a caucus among such repre-
sentatives , the meeting resumed i and Rogers suggested
that the parties 'arbitrate the issue of Raikes' discharge,
and it was agreed between Curren and him that the
initial stages of the grievance procedure should be waived
and that the matter go directly into arbitration, and
further that a panel of five arbitrators from which
Respondent and Local 393 could select a seventh panel
member22 be requested from the Federal Mediation and
Conciliation Service. This concluded the discussion con-
cerning the matters relating to the Interstate Highway
80 job. ,
3. The aftermath of the discharge of Raikes on August 12
In consequence of the above, Marchesi and Don
Gould, the business manager for the Laborers' District
Council, joined in a letter dated August 13 to the Federal
Mediation and Conciliation Service requesting "a panel
of five (5) potential arbitrators from which to select
an arbitrator to resolve a dispute as to whether an
employee was discharge [d] for just cause or for legitimate
union activity." As heretofore indicated, the charge
herein was filed by Raikes on August 15. So far as
appears, the unions never designated three members
to the arbitration panel in connection with Raikes' dis-
charge nor was an arbitrator ever selected by the parties
from the list of five,potential arbitrators from the Federal
Mediation and Conciliation Service.
The remaining postmeeting development in relation
to the above discharge of, Raikes was a letter dated
August 12 from Spence, as executive vice president
21 Respondent had, by this time, acted on the claim by Raikes of
the lack of toilet facilities on the job , by ordering and having delivered
to the jobsite a portable toilet.
n Under the contractual grievance procedure , each side was to name
three members to the arbitration panel and the six individuals so named
were to agree upon the seventh panel member
J. P. WETHERBY CONSTRUCTION CORP.
of Respondent, to Brandow, as business agent of Local
393. The text of the letter read as follows:
Pursuant to your request of August 12, 1969 and
in compliance with Article XIV-Section C of our
Contract, you are hereby notified that Mr. Charles
Raikes was discharged effective August 8, 1969,
because of his leadership of and participation in
a work stoppage in violation of our Contract on
August 8, 1969, rather than because of any legiti-
mate,union activity on his part.
Raikes has not worked for Respondent since August
8, the effective date of his discharge;
4. Conclusions
The General Counsel's initial position, as set forth
in his brief, appears to be, in substance, that Respond-
ent's asserted ground for discharging Raikes, namely,
because of his "leadership of and participation in a
work stoppage" in violation of a contractual no-strike
provision is a pretextual one. iHe reasons that Respondent
offered no proof that Raikes was not ill and its only
proof of Raikes' leadership.was that Raikes, his brother,
and Couch huddled shortly before all three of them
became ill, and that the real reason for Raikes' discharge,
as revealed by the record, was that Respondent was
upset by the fact that, as steward for the laborers
on the job, he "vigorously presented to management
his union's position concerning the pre-job agreement
and the collective bargaining agreement," which activity
was protected under the Act. ,
Contrary to the General Counsel, I find that the
record sustains both a finding that Raikes was not ill
and a finding that Raikes did occupy a leadership role
in the work stoppage. As to the latter, it is manifest
from my findings heretofore that, within the first hour
of his first day of employment on August 6 by Respond-
ent on the Interstate Highway 80 job, Raikes, who
was dispatched by Local 393 as the steward on the
job, began to assert what he conceived to be a disregard
of (1) his local's and its constituents' rights under the
prejob conference arrangements and (2) the rights of
all laborers under the extant labor agreement; that when,
on August 7 and 8, he took the lead in ' not going
to work, pending the resolution of the discrepancies
which he had raised with management, he had the ready
support of his brother and of Couch, both of whom
had also been dispatched to the job by Local 393,
and, at least, the acquiescence therein of the laborers
from the other two Laborers' locals on the job; and
that, on August 8, after Raikes had reported to manage-
ment that he was sick and was going home, phis brother
and Couch followed suit, and after the three of them
had left the jobsite, none of the other laborers would
go to work. All of this convincingly establishes, and
I infer and find, that Raikes occupied a leadership role
in the work stoppage on August 8.
On the issue of whether Raikes was actually ill when
he left the jobsite on August 8, I am satisfied that
his claimed illness cannot be divorced from the context
of the virtually simultaneous claim of illness by his
695
brother and by Couch. We have here the unlikely coinci-
dence of three individuals, who were well enough to
report to the job that morning,23 becoming ill within
minutes of one another and, so far as appears, not
requiring the services of a doctor in the, treatment of
such claimed illnesses; plus the unusual circumstance
of Raikes, his brother, and Couch huddling immediately
before the three of them reported such claimed illness
to Foreman Watts; plus the significant fact that this
occurred within minutes after the jobsite meeting
between management and the union representatives,
including Raikes, had failed to resolve the grievances
which were initially raised by Raikes. In these circum-
stances, including the fact that Raikes had, on the day
before and again that morning, made the resolution
of the discrepancies by management the first order of
business, before he would go to work-all this with
the apparent agreement and cooperation of his brother
and of Couch-it follows, and I infer and find, that
the action taken by Raikes, as well as by his brother
and Couch, in leaving the jobsite on August 8, after
the failure to resolve such claimed discrepancies, was
triggered by his and, their unwillingness to work until
such discrepancies, were resolved and not by any actual
illness. Accordingly, I conclude, and find further, that
neither Charles Raikes, Marvin Raikes,' nor Junior Roy
Couch was telling the truth when he testified that he
left the jobsite on August 8 because he was ill, but
rather that each of them feigned illness in order to
disguise the fact that he was engaging in a strike or
work stoppage because of the still unresolved grievances
concerning working conditions on the job.
As an alternative, the General Counsel argues that,
even assuming that Raikes was not ill and that Respond-
ent had the power under what it characterizes as a
no-strike clause in the existing contract to discharge
Raikes for his part in the alleged walkout,24 its reliance
on the contract is misplaced because Raikes was not
then engaging in a strike. In this connection, the General
Counsel contends that Respondent either accepted
Raikes' claim that he was ill and give him permission
to leave work and then discharged him for going home,
23 Couch testified that he came to the jobsite ready to work and
brought his lunch along
24 Respondent asserts herein that the walkout initiated by Raikes
breached art IX, sec. 1, of the agreement in effect between Local
393 and Local 911 and the Illinoi's Valley Contractors Association,
which is also binding on Respondent as a member of the Association.
Art IX, sec. 1, provides as follows
If any grievances arise between the parties of the Contract Agree-
ment that cannot be settled by a single representative of each,
before such grievances shall be allowed to extend or affect other
employees, the matter in contention shall be referred to a committee
of (3) three selected by each party within (48) forty-eight hours,
the six men thus selected shall select a seventh man within (48)
forty-eight hours after the six men have been selected. These
seven men thus selected shall constitute an arbitration board, and
their findings and decisions shall be binding on both parties During
the process of Arbitration no strike or lock-out shall be declared
by either party All men shall remain at work pending the decision
of the arbitration board In the event of a strike or discrimination
shall be made by the contractor, all men shall return to their
original jobs, unless authorized by the business representative or
authorized agent of the Union
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or Respondent knew that Raikes was not ill and neverthe-
less gave him permission to go home and thereafter
discharged him for going home. In the first instance,
the General Counsel's contention continues, the fact
that Raikes was given permission to go home precludes
a finding that Raikes was engaging in a strike which
involves a refusal to work; and in the second instance,
Respondent's action would constitute entrapment and
should not be countenanced by the Board. Here, too,
I find the General Counsel's position to be lacking
in merit. It is clear from Raikes' own testimony on
direct examination that, rather than ask Foreman Watts
for permission to go home, he told Watts of his decision
to go home because he "wasn't feeling good" and
that if he felt better he will be back the following
Monday morning.25 Under these circumstances, it is
idle to contend that Raikes was deferring to Watts
and would have stayed on the jobsite and gone to
work if Watts had not said, "Charlie, that's okay."
Failing a request by Raikes for permission to go home,
the latter remark by Watts was, I find, no more than
an indication of Watts' realization that he was powerless
to do anything, and that Raikes so understood it.
As still another alternative, the General Counsel argues
that a finding of discrimination in the discharge of Raikes
is required, even assuming that Raikes was not ill on
August 8 and was actually engaging in a concerted
refusal to work with other laborers. He acknowledges
that the Act's protection of employees' rights to engage
in a work stoppage' without fear of reprisal may be
modified by the parties to a collective-bargaining agree-
ment covering these employees, and that "the Board
has on many occasions implied a no-strike clause where
the parties have agreed to an arbitration procedure but
failed to write a no-strike clause into the contract,"
citing W.L. Mead, Inc., 113 NLRB 1040, for that proposi-
tion. However, he argues that the "implied no-strike
clause cases" are inapplicable here because the parties
in the instant case wrote a no-strike clause into the
contract, thus ruling out any implied no-strike clause,
and that such no-strike clause, when strictly construed
as the law requires, does not preclude the instant concert-
ed refusal to work. And this is so, the argument contin-
ues, because such clause inhibits strikes only while
the arbitration board is considering the grievance
involved. I find this contention to be lacking in merit
also.
In the first place, I ani not persuaded that a fair
reading of all' the language in article IX, section 1,
of the contract would permit the narrow construction
urged by the General Counsel. Under its terms, the
parties were obligated to refer grievance disputes, "not
settled by a single representative of each," to the arbitra-
'' The specific direct testimony of Raikes is as follows:
Q Did you work that day'
A No, sir
Q Why didn't you work?
A. I went and reported to Sam Watts that I wasn't feeling
good and that I was going home And he told me, "Charlie,
that's okay " And I said, " If I am feeling better, I will be back
Monday morning "
tion panel and were precluded from using any other
means to resolve such disputes. Thus, the section pro-
vides that, failing settlement at the first step, and before
such grievance "shall be allowed to extend or affect
other employees, the matter in contention shall be
referred [to the arbitration panel]," and further that
the findings of the panel "shall be binding on both
parties. "[Emphasis supplied.] In the light of this lan-
guage, logic and reason dictate that the very next sen-
tences, in prohibiting a strike or lockout "during the
process of arbitration," referred to the entire grievance
and arbitration procedure.26 To hold otherwise would,
apart from other considerations, render nugatory the
first sentence of section 1 which requires arbitration
"before such grievances shall be allowed to extend
or affect other employees"; it would countenance strikes
or lockouts while a grievance is pending and so long
as either party chose to frustrate the selection of an
arbitration panel and its commencement of deliberations.
In so concluding, I take cognizance also of the last
sentence of section 1, which reads, "In the event of
a strike or discrimination shall be made by the contractor,
all men shall return to their original jobs, unless author-
ized by the business representative or authorized agent
of the Union." While this sentence is inartfully drawn,
it does not, I find, in any way undercut the prohibition
of, an economic strike, as here, which prohibition is
imbedded in the rest of the section. Viewing the sentence
most favorably to the complainant, it speaks of a strike
caused by the contractor's discrimination, i.e., an unfair
labor practice strike, and mandates the return of the
strikers to their original jobs, unless the business agent
or authorized agent of the union involved tells the strikers
not to return.27 As such, this sentence is addressed
to the well-established principle that a no-strike clause
in a contract has no applicability to a strike in protest
of serious employer unfair labor practices, unless such
contract makes clear that such a strike was included
in the prohibition.2" Here, unfair labor practice strikes
would be included in the prohibition only if the Union
did not authorize them.
Furthermore, and apart from all the foregoing, since
it is 'clear that article IX, section 1, constitutes an
agreement for the exclusive settlement of all grievances
under the contract through the grievance and arbitration
procedures erected by the contract, with final and binding
effect on the parties of the decision reached therein,
the conclusion that it also constitutes a covenant not
2", The applicable sentences are "During the process of arbitration
no strike or lockout shall be declared by either party All men shall
remain at work pending the decision of the Arbitration Board "
21 I note, in this connection, Marchesi ' s testimony that he contended,
during negotiations for the instant contract and prior contracts, that
this last sentence of section I was improperly included in that section
since it applied only during the hiatus period between contracts, and
further that the unions agreed with him However, I note further
that no such change was effected in the instant contract or prior
contracts in respect to the placement elsewhere of this last sentence,
or in its language In these circumstances , I am unable to find, and
do not credit Marchesi ' s testimony , that the Union concurred in his
interpretation of that sentence
28 See Mastro Plastics Corp et al v N L R.B., 350 US 270,
and Arlan's Department Store of Michigan Inc , 133 NLRB 802
J. P. WETHERBY CONSTRUCTION CORP. 697
to resort to strikes to settle disputes cognizable under
the existing machinery has no dependence on the pres-
ence of a no-strike clause in the agreement. The control-
ling consideration, as stated by the Supreme Court in
Local 174, Teamsters, Chauffeurs, Warehousemen, &
Helpers of America v. Lucas Flour Co., 369 U.S. 95,
is that "the collective bargaining contract exclusively
imposed upon the parties the duty of submitting the
dispute in question, to final and binding arbitration."
So here, even granting the General Counsel's view,
contrary to my finding above, that the sentences relied
upon referred only to strikes while the arbitration board
had the grievance before it, they could not in any
way negate the more comprehensive effect on the right
to strike of the language in the same section mandating
final and binding arbitration of all disputes concerning
grievances.
We come now to the basic issue in the case, namely,
whether, in the circumstances, Raikes' summary resort
to a strike or a work stoppage in conjunction with
other laborers in disregard of his obligation under the
contract to proceed through a grievance to a final arbitra-
tion award constituted legal ground for his discharge .211
Directly applicable here is the language of the Board
in the case of W.L. Mead, Inc., 113 NLRB 1040, 1043,
which was approved by the Supreme Court in Local
174, Teamsters, Chauffeurs, Warehousemen & Helpers
of America v. Lucas Flour Co., supra, holding that
there is a duty to arbitrate in accordance with clear
contractual provisions providing for final and binding
arbitration and that employees lose the Act's protection
when they arbitrarily breach such clauses and turn to
the use of economic force for the settlement of griev-
ances.30 Accordingly, it follows, and I find, that, by
2N As already found, at the August 12 meeting, Curren announced
to the assemblage, including Raikes, Respondent's decision to discharge
him "for leading andparticipating in a work stoppage on August 8 "
In Respondent's letter dated August 12, sent to Brandow, the business
agent of Local 393, at his request, Respondent stated more fully that
Raikes "was discharged effective August 8, 1969, because of his leader-
ship of and participation in a work stoppage in violation of our Contract
11on August 8, 1969. .
Thus, the Board said in the Mead case.
Every encouragement should be given to the making and enforce-
ment of such clauses But, if employees may effectively call upon
the Board to protect them when they arbitrarily breach clear and
binding arbitration clauses of this kind , and turn to the use of
economic force for the settlement of grievances rather than to
the contractual , quasijudicial procedure , the effect will be to discour-
age the making of, and the adherence to, contractual arbitration
procedures To hold that a strike in furtherance of such a material
breach of a clear and binding contractual arbitration clause is
to be protected by this Board would be contrary to the labor
policy embodied in the National Labor Relations Act as interpreted
by the courts of appeals (footnote omitted) and the Supreme Court
[citing the case of N L R B v Sands Manufacturing Co , 306
U.S. 332, 344, and its holding that "The Act does not prohibit
an effective discharge for repudiation by the employee of his agree-
ment any more than it prohibits such discharge for a tort committed
against the employer "]
And the Supreme Court said, in turn, in the Lucas Flour Co case
We approve of that doctrine To hold otherwise would obviously
do violence to accepted principles of traditional contract law Even
more in point, a contrary view would be completely at odds with
the basic policy of national labor legislation to promote the arbitral
process as a substitute for economic warfare. See United States
striking or engaging in a work stopptage in concert with
other laborers, Raikes acted in derogation of the existing
contract and lost the Act's protection. And I find further
that Respondent did not violate the Act when it dis-
charged him therefor.31
In finding no discrimination, I have taken cognizance
of the General Counsel's further contention that, even
if Raikes violated a no-strike provision and Respondent
could lawfully discharge him therefor, Respondent would
nevertheless have violated the Act if it also discharged
him for engaging in protected activity while performing
his role as steward. In support thereof, the General
Counsel argues, as noted heretofore, that, as steward,
Raikes vigorously presented to Respondent's manage-
ment his union's position concerning the prejob agree-
ment and the existing collective-bargaining agreement
and that management was upset by this protected activi-
ty. It is true that Raikes was assigned to flagman's
duties on August 6. However, I find no basis in this
record for concluding, as the General Counsel contends,
that "this indicates that Respondent was concerned
enough with Raikes' possible activity as a steward to
attempt to neutralize his effect as steward by isolating
him." Nor does it appear that Raikes or his union
ever complained to management that Raikes' job assign-
ment interfered with his ability to function as a steward.
Nor do I agree that the record supports a finding that
Respondent demonstrated its union animus during the
course of a conversation between Curren and Brandow
on August 6 on the telephone, and by a remark made
by Spence as Raikes was leaving the jobsite on August
8. In the former situation, Brandow testified, on direct,
that, in the course of talking to Curren concerning
a matter unrelated to the Interstate Highway 80 job,
Curren said, "that ever since Charles Raikes got that
money in the NLRB case from R. H. Fulton, everybody
wants all the easy money. I think the thing to do
is to get something on him and fire him, and make
it stick." During cross-examination, Brandow did not
recall whether there was any discussion concerning the
use of the grievance and arbitration proceding and of
unlawful strikes before Raikes' name was brought into
the picture. As to the foregoing, Curren testified that
he commented to Brandow, after they had settled the
matter at hand peacefully, that Local 393 had not been
operating well when Charles Raikes had been business
agent of the local '31 and that it had been the practice
to shut the job down until the company involved gave
in, irrespective of whether the Union was right or wrong;
and further that it was a violation of the contract to
engage in this sort of thing when it was a matter subject
to the grievance procedure. In addition, Curren categori-
v Warrior Gulf Navigation Co , 363 U S. 574
3' See Alton Box Board Company Container Divi3ion, 155 NLRB
1025
I attach no implication adverse to Respondent because it did not
also discharge Couch and Raikes ' brother, Marvin It is.well established
that an employer may choose among wrongdoers in meting out discipline.
See N L R.B v. Fansteel Metallurgical Corporation, 306 U S 240,
259
31 Raikes testified that he had been business manager of Local
from May 1966 until October 1, 1968
393
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally denied the rerparks attributed to him by Brandow
As Curren's testimony is, I find, more consistent with
the logic and probabilities of the situation, and as Curren
impressed me as a more reliable witness than Brandow,
I credit Curren 11
In respect to the remark attributed to Spence, Raikes
testified that, as he was walking away from Watts and
Spence after he had reported to Watts on August 8
that he was sick and going home, Spence said to him,
"you won't have no goddam job Monday morning "
According to Spence, he was not near Raikes at the
time, he also denied the above attribution by Raikes
to him As I have heretofore found that Raikes was
not telling the truth when he testified that he was Ill
that morning and had to leave the jobsite, and as I
have found that Raikes did not testify credibly in other
respects, and as Spence impressed me as a more credible
witness than Raikes, I credit Spence's denial that he
made the above remark attributed to him by Raikes
In sum, therefore, I find that the record fails to prepon-
derate in favor of a finding that one of the reasons
for Raikes' discharge was Raikes' protected activity
while performing his role as steward
In conclusion, therefore, I find that the General Coun-
sel did not sustain his burden of establishing by a
preponderance of the evidence that Charles Raikes was
discriminatorily discharged in violation of Section 8(a)(3)
and (1) of the Act
In view of all the foregoing, it will be recommended
that the complaint be dismissed in its entirety
Upon the basis of the entire record, I make the
following
CONCLUSIONS OF LAW
1 Respondent i s an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Respondent has not discriminated against employee
Charles Raikes in violation of Section 8(a)(3) and (1)
of the Act
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the
case, It is recommended that the complaint herein be
dismissed
11 In these circumstances I need not here decide whether Curren
the assistant to the executive director of the Associated General Contrac
tors of Illinois was then acting as Respondent s agent However if
it were necessary to decide this issue I would find that he was not
Respondent s agent at the time