Morrison-Knudsen Co., Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1974

213 N.L.R.B. 280 (N.L.R.B. 1974)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrison-Knudsen Company, Inc. and United Brother-
hood of Carpenters and Joiners of America, Local
No. 1055, AFL-CIO. Case 17-CA-5874
September 17, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY AND PENELLO
On April 30, 1974, Administrative Law Judge Nan-
cy M. Sherman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'and
conclusions 2of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Morrison-Knudsen Compa-
ny, Inc., Lincoln, Nebraska, its officers, agents, suc-
cessors, and assigns, shall take the actions set forth in
said recommended order, except that the attached
notice is substituted for the Administrative Law
Judge's notice.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, (1951). We have carefully examined the
record and find no basis for reversing her findings.
2 As we agree with the Administrative Law Judge's conclusion that the
instant case is not appropriate for deferral to arbitration in light of our recent
holdings in Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972), North Shore
Publishing Co., 206 NLRB 42 (1973), and Diversified Industries, a Division of
Independent Stave Company, 208 NLRB 233 (1974), we need not consider and
evaluate the Administrative Law Judge's discussion of the application of
Alexander v. Gardner-Denver Co., 94 S. Ct. 1011 (1974), to the instant case.
Members Kennedy and Penello agree with the result in not deferring to
the grievance-arbitration procedures in the circumstances of this particular
case. However, they do not adopt the views expressed in the discussion by
the Administrative Law Judge concerning the Supreme Court's Gardner-
Denver decision , particularly in view of the Court's opinion in William E.
Arnold Company v. Carpenters District Council of Jacksonville and Vicinity,
94 S. Ct. 2069 (1974). Although Member Fanning agrees with the disposi
tion herein , he does not subscribe to his colleagues ' views regarding Collyer
Insulated Wire, 192 NLRB 837 (1971), and the policy of deferral enunciated
in that and subsequent cases . See his dissent in Collyer.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law by firing Edwin L. Patchen because
of his grievance activity as a union steward. We have
been ordered to post this notice. We intend to carry
out the order of the Board and abide by the following:
WE WILL NOT fire any union steward because of
his grievance activity.
WE WILL NOT fire or otherwise discriminate
against any employees because they present
grievances through or because of their member-
ship in United Brotherhood of Carpenters and
Joiners of America, Local No. 1055, AFL-CIO,
or any other Union.
WE WILL offer to give Edwin L. Patchen his job
back or, if it no longer exists, a substantially
equivalent job and make him whole for loss of
pay, with interest, owing to his discharge.
Our employees are free to join or assist the
above-named Union, or any other union, includ-
ing the presentation of grievances through it, and
to engage in other concerted activity for the pur-
poses of collective bargaining or other mutual aid
or protection. Our employees are also free to re-
frain from any or all such activities. WE WILL NOT
interfere with, restrain, or coerce employees in
the exercise of these rights.
MORRISON-KNUDSEN COM-
PANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board ' s Office , Room 616-Two Gateway Center,
Fourth at State , Kansas City, Kansas 66101, Tele-
MORRISON-KNUDSEN CO., INC.
phone 816-374--4518.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding, heard at Lincoln, Nebraska, on March 12, 1974,
pursuant to a charge filed on December 13, 1973, and a
complaint issued on January 31, 1974, presents the question,
inter alia, of whether Respondent Morrison-Knudsen Com-
pany, Inc., discharged employee Edwin L. Patchen because
of his activity as a steward for the Charging Party, United
Brotherhood of Carpenters and Joiners of America, Local
No. 1055, AFL-CIO, ("the Union" or "the Carpenters"), in
violation of Section 8(a)(1) and (3) of the Act.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and by the Charging Party (infra, fn. 41), I
make the following:
FINDINGS OF FACT
1. THE NATURE OF RESPONDENT 'S OPERATIONS AND THE UNION'S
STATUS AS A LABOR ORGANIZATION
Respondent is engaged in the business of general con-
tracting, engineering, and developing, from its principal
place of business in Boise, Idaho. It annually purchases
goods and services valued at more than $50,000 from firms
or enterprises located outside Idaho, and annually performs
services valued at more than $50,000 directly for firms or
enterprises located outside Idaho. I find that, as Respon-
dent concedes, it is engaged in commerce within the mean-
ing of the Act, and that exercise of jurisdiction over its
operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At some time prior to the beginning of the events involved
here, Respondent, as a member of the Building Construc-
tion Employers' Association of Lincoln, became bound by
a collective-bargaining agreement between the Association
and the Union which was to continue in effect until March
31, 1975, at the earliest. Thin agreement provided, inter alia,
"Union shall be privileged to select a Steward to be on the
job at all times when the men are working, whose duty it
shall be to perform the usual duties of a Steward with the
least interference possible. Whenever there is a reduction of
the carpenter crew, the Employer shall be privileged to keep
those carpenters best qualified to perform the work."
Respondent's counsel stated at the hearing that this agree-
ment permitted a steward to spend a reasonable amount of
paid time in performing his duties as steward.
The instant case involves the construction of the Federal
Building in Lincoln, Nebraska. Patchen, who had worked as
281
a carpenter since the age of 17 and had 40 years' experience
in the trade, was first hired by Respondent for that project
about February 1, 1973. He and another carpenter finished
their initial job assignment in 4 days (management having
estimated that the work would take 2 weeks) and were there-
upon laid off by then construction superintendent, Hank
Love, who commented, "You just worked yourselves out of
a job."
Respondent recalled Patchen about February 10 or 15.
About March 1, Superintendent Love assigned Patchen to
the job of sawman on the "sawdeck," a particular area
where a large saw was used to cut wood to needed sizes and
to build things. Patchen did not care for this assignment, but
both Love and his successor, George Fox, told Patchen that
he was particularly qualified for this work and insisted that
he continue to perform it.' Patchen continued to serve as
sawman throughout the remaining 9 months of his employ-
ment.
B. Patchen's Activities as Steward
1. Activities under Superintendent Love
Patchen had transferred membership into the Local
Union about 1969, and had had 4 years' experience as car-
penters' steward on another Government project. When Re-
spondent recalled him to work, Union Business
Representative R. D. Dittenber appointed Patchen to act as
permanent carpenters' steward on the Federal Building
job?
Sometime in March 1973, just before the normal 8 a.m.
starting hour for carpenters, between 6 and 15 carpenters
complained to Patchen that laborers were stripping forms
which were to be reused, work which the carpenters regard-
ed as belonging to them. Patchen credibly testified to a
belief that the work of stripping and dismantling forms was
carpenters' work unless more than 50 percent of the forms
were to be thrown away, in which event it was laborers'
work.' Patchen went to superintendent Love, and said, "
... you can't have the laborers stripping the forms .. .
That's the carpenters' work." Love replied, "Well, damn it,
they are not stripping the forms." Patchen said, "Man, I'm
standing right here looking at him using a wrecking bar.
1 A sawman is customarily paid 50 cents an hour more than the other
carpenters. Love promised that Patchen would receive this premium but,
because it was not contractually required , wage stabilization regulations
prevented Patchen from receiving it.
2 Patchen was the sixth carpenter hired at the project. It appears that
before Patchen was hired, another carpenter had been serving as "acting
steward."
3 A 1949 agreement between the Carptenters' International and the Labor-
ers' International provides , inter alia ; "On stripping of panel forms to be
reused again the releasing shall be done by [carpenters]. The moving, clean-
ing, oiling, and carrying to the next point of erection, and the stripping of
forms which are not to be re-used , and of forms on all fiat arch work shall
be done by" laborers. By letter dated December 20, 1973, Respondent
(through area manager Gene McDonough) advised the chairman of the
Impartial Jurisdictional Board for the Construction Industry, "The carpen-
ters have been reworking forms that are to be reused on the project, as
required . They have not been assigned the task of dismantling the forms after
their final use." The letter further asserted that in August 1973 the Laborers
and the Carpenters had agreed "that the forms would be dismantled by
[laborers] after their final use."
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He's prying them loose and breaking them loose." Love
"got hot," "blew up," and told Patchen he was fired and to
pick up his check! Patchen told Love to get Patchen's
check, that he was going down to the union hall.
Patchen then went down to the union hall and told Busi-
ness Agent Dittenber that he, Patchen, had been fired and
Love had said he was going to "report" him to the "Labor
Board" (inferentially, referring to the Impartial Jurisdic-
tional Board for the Construction Industry). Because of a
union bylaw forbidding members to work without a stew-
ard, upon Patchen's discharge the other carpenters on the
jobsite laid down their tools.5 When Love told them to either
go to work or get off the jobsite, they headed for the union
hall, which they reached during Patchen's discussion with
Dittenber. Dittenber and Patchen then returned to the job-
site , where Patchen asked Love for Patchen's paycheck.
Love replied, "Hell, no. I was just mad. I didn't mean it."
Patchen asked when Love wanted him to go back to work.
Love replied that Patchen could go back immediately so far
as Love was concerned, except that "Their ain't nobody
here. Will you come back in the morning?" Patchen replied
that he would. Love then told Patchen and Dittenber that
he knew the stripping of the forms in question was not
laborers' work; and explained that he had thought the forms
had been taken out the night before and had instructed the
laborers to remove them because they were interfering with
work to be performed by the laborers before the carpenters'
starting hour. Love made this statement about 2 1/2 hours
after the carpenters' complaint to Patchen. Thereafter, the
carpenters stripped the forms and the laborers cleaned them
and moved them to the next place.
About June 1973, the Laborers' steward came to Patchen
on the sawdeck and told him that laborers were performing
carpenters' work in an area hidden from Patchen's view by
a pile of dirt. Patchen then went over to the area and saw
that the laborers were dismantling forms. Patchen said,
"... you boys are doing our work. You know you aren't
supposed to dismantle those forms." The laborers laughed
and said, ". . . we know it. We just wondering how long it
would be before you got here." They asked Patchen whether
he wanted them to stop. He replied, "No, you don't. You
have been authorized to do it. You go ahead and continue
it until I can check with the hall and they will let you know
to stop. I'm sure that I will come over and tell you to quit."
Patchen then telephoned Dittenber about the incident, us-
ing Respondent's office phone. Patchen also told assistant
superintendent Paul Phipps what was going on, and said
that the work in question was the carpenters' work. Phipps
agreed that it was carpenters' work. Phipps and Patchen, 2
hours later, pulled the laborers off the dismantling work and
assigned two carpenters' apprentices thereto, with the labor-
ers then piling the lumber.
In mid-July 1973, Patchen received several complaints
from the carpenters that cement finishers were doing car-
penters' work relating to electrical chases and keyed
a This action occurred more than 6 months before the filing of the charge,
and is not attacked in the complaint . Evidence as to it was received for
background purposes only.
5 As previously noted , under the bargaining agreement a steward was to
be "on the job at all times when the men are working."
screeds .6 Patchen spoke about the matter to Phipps, who
said, "Well, they're doing the work, there's nothing I can do
about it." Patchen thereupon telephoned Dittenber (using
Respondent's office phone) and also spoke to the Cement
Finishers' union about the matter. The work was eventually
divided between the crafts in accordance with an agreement
reached about 3 months later by representatives of the two
unions and of Respondent. During this interval, the cement
finishers continued to do the work, and no walkouts oc-
curred on the job over this matter.
2. Activities under George Fox
Beginning in March 1973, the carpenters had been an-
noyed by the absence of an eating shack where they could
eat lunches brought from home.? Patchen repeatedly
brought the matter up with supervision, but initially "kind
of went along with" the "brushoff" he got because for sever-
al months there was really no place to put it. Eventually,
Patchen concluded that a place for an eating shack had
become available, but his requests to supervision for such
a shack remained unavailing. The employees' complaints
grew, and about August 10, Patchen wrote up a grievance
based on the absence of an eating shack, had all the men
sign it , and turned it in to the union hall.' Patchen also
talked to George Fox (then the superintendent over the
elevator shaft), who told Patchen to put men on the shack
and start building it. Patchen then told Dittenber to "lay off
the grievance because we are going to get our shack." The
shack was in fact built.
Fox came onto the project about the last week in August
1974. Before becoming project superintendent a month or
two later, he told Patchen that he had previously worked for
Beck's Construction Company, which was building a local
bank; that he was used to getting what he wanted done if
he had to use "financial force" to get it done; that he "didn't
care about the union and he didn't care about them telling
him how to run anything," that he "didn't like to have
anybody over him;" and that he "wanted to get away with
all the dogs in-between him and over him so that he could
be the top dog on the job." 9
In October 1973, several carpenters approached Patchen
and complained that cement finishers were doing their
work. Patchen thereupon went "into the hole" where the
forms in question were being built and told the Cement
Finishers' steward, "You know that is not your work." The
6 Electrical chases are trenches made in concrete to permit the installation
of electrical cable . Keyed screeds are forms put in to form and shape concrete
and to keep it level.
Patchen credibly testified to a belief that the carpenters were contractual-
ly entitled to this facility . He relied on the provision that "The Employer shall
furnish reasonable and comfortable quarters for Carpenter employees."
Patchen explained that it is "not comfortable" to eat "in a foot of water,"
in the hot sun with flies on your food , or under a smelly portable toilet.
B There is no probative evidence that Respondent ever received this docu-
ment. However , area manager McDonough admitted that the Union's busi-
ness agent had repeatedly drawn the matter to his attention.
9 My findings as to the contents of this conversation are based on Patchen's
credible testimony . Fox admitted that he had worked for Beck's for about
2 weeks before coming to work for Respondent, but testified that he could
not "ever recall" making the type of statement summarized in the text. Fox
impressed me as an evasive witness with both a professedly and a genuinely
poor memory. On the basis of the witnesses' demeanor , I credit Patchen.
MORRISON-KNUDSEN CO., INC. 283
Cement Finishers' steward replied that he knew this, but
that the cement finishers had been told to do it, and that he
was going ahead and doing it because "I want to get Ditten-
ber down here. I want to talk to him." Patchen then drew
the cement finishers' performance of the work to the atten-
tion of Fox, who said, "Well, that is the way it's going to be
until we find out different." Patchen thereupon called the
union hall about the matter, using Respondent's office tele-
phone. The following day, Fox told Patchen that area man-
ager McDonough had said that the carpenters would put
down the first 2 x 4's and the cement finishers would put
down the second. Fox said, "If you don't like that, you can
go home. That is the way it's going to be. We are going to
run our own job." Fox added that "they were getting tired
of the union telling them what to do." Patchen then called
the union hall again, using Respondent's office phone. Fox
told Patchen not to "bother" with the grievance, "to get [his]
nose out of it and get back up to the saw deck and go to
work, and not worry about it no more. It wasn't any of
[Patchen's] business." The carpenters eventually did all the
work in question.
Also in October 1973, Patchen telephoned Dittenber (in-
ferentially, on Respondent's office phone) and told him that
the ironworkers had told a carpenter who was welding a
sleeve on the stairwell 10 that if he welded another, "he'd
break his damned neck." Dittenber came onto the project
and went to the office, but the record fails to show what was
said. On other occasions Patchen telephoned the Union to
find out whether particular tasks being performed were car-
penters' work; but he had no trouble with the crafts over
any of these matters.
Patchen credibly testified that on occasions other than
those described above, management assigned laborers to do
the dismantling work claimed by the carpenters, and that
after he talked to supervision carpenters were assigned to
the work instead. He further credibly testified that on sever-
al occasions whose dates he could not recall, when he tele-
phoned the union hall about Fox's having other crafts do
carpenters' work, Fox said, "Well now, you have done your
job. You have called the hall. Tend to your own business.
Go back over there and run the saws . . . I run this job. I
don't need the union telling me how to run it."" After
making such remarks on one occasion in November 1973,
Fox added the instruction that Patchen refrain from going
"over [Fox's] head," but take up any problems with Fox.
At this point, Patchen contacted area manager McDo-
nough and asked for a conference over a cup of coffee on
Patchen's own time. McDonough said that he would come
by the next day, and that the conference could be held on
company time. However, when McDonough came by,
Patchen felt that he had too much work to permit a coffee-
break, and their conversation was conducted on the saw-
deck.12 Patchen said that he wanted to get off the steward's
job because it was making him physically ill.13 Patchen said
10 A sleeve is a sliding piece of metal which holds the hand rail to the
banisters.
11 After some hesitation , Fox denied saying the last two sentences . In view
of the witnesses' demeanor and Fox's unreliability as a witness in other
ressects, I credit Patchen.
My findings in this paragraph up to this point are based on Patchen's
uncontradicted testimony.
that he wanted to stop being steward if he had to quit to do
it, that Fox and Laborers ' foreman Mel Gee were about to
ruin his health , and that "I know that the company is not
union , you don' t want to run union . I have been informed
of it ." 1 McDonough said, "Just a minute . I'll let you know
one thing right now . The company is over 85 percent union.
We are union and we do believe in the union . I have carried
my book for 30 years." McDonough said that he wanted
Patchen to stay on as steward because he had "done a good
job." McDonough further told Patchen , "In the future when
you have a problem you come to my office . My door is open
any time . You come over and discuss it with me . I'll proba-
bly find out some things that is going on that I don't know."
McDonough asked him to try to proceed on that basis for
a couple of weeks and Patchen agreed.15
Later in November 1973, Fox came to Patchen on the
sawdeck and said that he liked to run his own jobs and
"didn ' t want nobody telling him what to do or anything
else." Fox then pulled a pistol from his pocket . Patchen
asked whether it was a "45." Fox replied that it was a "41."
Assistant superintendent Phipps then came by and told
Patchen to go to work and quit visiting.16
13 My findings in this sentence are based on Patchen 's and McDonough's
mutually corroborative testimony.
14 Patchen testified that this was his "understanding ... from what Mr.
Fox had told me and what the labor foreman had told me." For the reasons
set forth infra, In. 15, I believe that this was Patchen's understanding, al-
though he may have misunderstood what he was told . Fox emphatically
denied having told Patchen that Respondent was not a company which
recognized unions-a statement which, however, was somewhat different
from the one Patchen attributed to him. Gee did not testify.
15 My findings in the portions of this paragraph subsequent to the sentence
attached to In . 14 are based on Patchen's testimony , which I credit in prefer-
ence to McDonough 's on the basis of the witnesses' demeanor and because
the portions of McDonough 's testimony which conflict with Patchen's seem
to me somewhat improbable . More specifically , because McDonough con-
ceded that Patchen was complaining about his difficulties in performing his
functions as steward , it seems unlikely that McDonough would have re-
sponded (as he testified he did) that "the job down the street [inferentially,
the Beck job] would be the same way , no use checking out"; for neither
McDonough nor Patchen had any reason to assume that Patchen would be
appointed steward at Beck if he got a job there . Further, McDonough testi-
fied that Patchen was complaining about the extra work required in keeping
his members satisfied , that he did not mention Gee's name , and that Mc-
Donough did not "recall" Patchen's mentioning his dealings with Fox; yet,
as a practical matter, the only way McDonough could help Patchen solve the
problem Patchen had taken such pains to consult him about was to induce
Fox and Gee to refrain from making the work assignments about which the
members were complaining to Patchen . Indeed, Patchen's testimony that
McDonough invited him to discuss future problems with McDonough was
to some extent corroborated by McDonough 's testimony that he said he was
available for an "emergency problem."
Moreover , in view of my finding that Patchen did specifically complain
about Fox and Gee , the evidence that management was assigning work
claimed by the carpenters to other crafts which did not claim it, and Fox's
disparaging remarks about the Union 's efforts to alter work assignments, I
credit Patchen's testimony that he attributed to them the statement that "the
company is not union ," and did not "want to run union ." While I think it
unlikely that Fox or Gee made such statements in terms , I believe that
Patchen honestly thought that their statements and conduct amounted there-
to. I note that Patchen's credited testimony about McDonough 's comments
that Respondent was "over 85 percent union " is quite similar to what Mc-
Donough testified he said "if that subject was mentioned."
16 These findings are based on Patchen 's credited testimony. Fox tacitly
admitted that he owns a 41 calibre pistol and at one point that he showed
it to Patchen . At other points he testified that he "could have" pulled out this
pistol in Patchen's presence ; that "if" he showed it to Patchen , Fox showed
it to him "in a crowd" ; and that "I think" it would be unshootable because
most of Fox 's antiques were. Fox, who is an antique gun collector , further
Continued
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On an undisclosed date prior to December 5, 1973, in
connection with pouring a concrete slab, management dis-
mantled the eating shack. Prior to December 5, Patchen
talked to Fox several times in an affort to have the eating
shack rebuilt. On December 5, Fox assigned some men to
start rebuilding the shack, but later that same day, he took
them off this job and assigned them to other work. At this
point, Patchen complained to Fox, who replied that Mc-
Donough had said that if it was too cold for the laborers to
work without a place to eat, the s.o.b.'s could go home.
When Patchen replied that he did not think McDonough
had said that, Fox said that the heat supplied for pouring
the concrete, plus the plastic sheeting over the construction
work, supplied a warm enough place to eat in;'7 that the
cement had to be poured while the weather permitted; and
that "as soon as we get these forms set then I'll finish your
shack."'s
C. Events On and After the Day Paschen Was Advised of
his Discharge
Shortly after 8 a.m. on December 7, while Patchen was
ripping boards on the sawdeck, several iron workers walked
up to the end of the saw table . Patchen lit a cigarette, shut
the saw down , and went over to talk to the ironworkers. He
told them to get out of the way from behind the saw because
saws sometimes kick timber backwards with considerable
force; and, perhaps, made other remarks as well. The iron-
workers also made some remarks to Patchen , whose subject
is not shown by the record.19
Fox then walked up, told Patchen, "... you can't learn
a damned thing listening to those ironworkers," directed
Patchen to build some boxes for fire extinguishers , and told
him to "put a rip lock on them." Patchen asked what a rip
lock was. Fox replied, "You know what a rip lock is. Put it
on them ." Patchen said, "Yes, sir." He then asked some of
the other employees what a rip lock was, but nobody knew.
After that, he asked assistant superintendent Phipps, who
said, "That is your problem. He told you what to build. You
build it," and walked off laughing. Patchen then went to the
office and obtained from Fox instructions about what color
to paint the fire extinguisher boxes and what labelling tech-
niques to use. Patchen also asked Fox how to spell "extin-
guishers," but Fox did not tell him. Patchen then said,
"Well, how do you make a rip lock? Now, I'm going to
admit I'm ignorant, but I don't know what a rip lock is and
I don't know how to put it on there." Fox said, "I told you
to put rip locks on it. Go over there and put them on there."
testified that he did not know the design of the 41 calibre pistol he showed
Patchen . Because of the evasiveness of Fox's testimony , because of Phipps'
failure to testify (infra, In. 54), and on the basis of the witnesses ' demeanor,
I credit Patchen with respect to this incident, and discredit Fox except to the
extent that he is corroborated by Patchen.
17 The employees had complained that the fumes from the space heaters
were making them sick.
'8 The shack was restored about December 18 or 19, 8 or 9 days after
Patchen 's last day of employment on the project. Fox testified that its restora-
tion was held up by a 1-week Carpenters' strike caused by Patchen's termina-
tion.
19 My findings in this paragraph are based on credible portions of
Patchen's and Fox's testimony, which I accept in part and reject in part. See,
infra, part II, D, 2.
Patchen said, "Yes, sir," and walked out 20
A few minutes later, a number of the carpenters came
seriatim to Patchen on the sawdeck; complained that the
laborers were stripping and dismantling forms; asserted that
this was carpenters' work; and wanted to know why Patch-
en did not do anything about it. Eventually the carpenters'
foreman made similar complaints and, just before the lunch
break, took Patchen over to the place on the jobsite where
the work was being done. When Patchen mentioned the
performance of this work, the laborers' steward said, ".. .
this is not our work. Do you want me to stop them?" Patch-
en replied no, that they had been assigned the work and if
the steward stopped them they would be fired. Patchen said
that he would see Fox about the matter. Patchen "hollered"
at Assistant Superintendent Phipps, who was walking by,
but he "just turned his head and walked on. He didn't want
any part of it."
After returning from lunch, Patchen asked for McDo-
nough, but superintendent Tucker said McDonough was
out of town.21 Patchen then started toward the office to see
Fox, but en route was told by Phipps that Fox was under
a translucent plastic tarpaulin. The tarpaulin covered an
area where cement had been poured about midnight.
When Patchen went in shortly after 1 p.m., Fox, who was
"pretty irritable," told Patchen that somebody had "pretty
well screwed it up" by walking down the stairsteps on fresh
concrete, and directed Patchen to "get off the cement and
get out yonder." The cement was "green," but it was not
wet. Patchen saw that two inspectors, a cement finisher, and
Fox (who is 6 feet 3 inches tall, and weighs 210 pounds) 22
were all standing on the "green" concrete. Patchen told Fox,
"No, I'm going to stay here until you get through because
I want to see you. We have got something to work out."23
When the others under the tarpaulin had finished talking,
Patchen went out with them and said that he wanted to talk
to Fox about the laborers' dismantling the forms. Fox said
that the forms were going to be thrown away. Patchen said,
"Fine, I'll back my pup up there and load them up." Fox
said , "No, we are going to take them over [to another part
of the jobsite] and use them on the parking lot." Patchen
said, "Well, you and I both know ... they are not going
to throw those twenty foot two by fours away and those four
by eight sheets of plywood as bad as I need them up on the
sawdeck, when I'm scrounging around everyplace here
trying to get material to saw it to fill orders with to build
20 My findings in this paragraph are based on Patchen 's testimony. On the
basis of the witnesses ' demeanor and Phipps' failure to testify (infra, In. 54),
1 credit such testimony notwithstanding Fox's testimony that "to [his) recol-
lection" (" I doubt it, no" ) Patchen did not ask him what a rip lock was, and
he would have told Patchen if asked. Fox's hearing testimony, in response
to rather detailed questioning about the matter by Respondent 's counsel,
shows that a "rip lock" is a lock which is fastened with fewer screws than
are normally used, so that in case of fire the extinguisher can be reached by
pulling the lock off the box . While Fox testified that the functioning of the
lock was "clarified to everyone at the safety meeting," there is no direct
evidence about the date of this meeting ; and particularly because none of the
employees could tell Patchen what a "rip lock" is, it seems likely that the
meeting was held after the extinguishers were installed and not before.
21 McDonough testified that he left the project for Boise , Idaho, at noon
that day. Tucker did not testify.
22 On the basis of my observation at the hearing, I would judge Patchen
to be about 5 feet 9 inches tall and to weigh about 175 pounds.
23 My findings in this paragraph are based on Patchen 's testimony. For
reasons summarized , infra, part II, D, 2, 1 do not credit Fox's version.
MORRISON-KNUDSEN CO., INC. 285
forms and things when I haven't got any material." Fox said
that Patchen knew Fox had a "letter" which said that "the
laborers could do that"; Patchen replied that Fox had told
him about the letter but he had never seen it because Fox
could not find it. Patchen further stated that he could pro-
duce, "real quick," a letter pertaining to the settlement of a
1969 dispute in Brownsville, Nebraska, which said that la-
borers could perform the work if more than 50 percent of
the material was going to be thrown away.24 Fox said, "It's
up to me to use my judgment, if over 50 percent of it is to
be thrown away the laborers can do it." Patchen said, ".. .
we know that they aren't going to throw those four by eight
sheets of plywood away when I'm waiting for them to bring
them over to the sawdeck to use." Fox said, "Go on back
to the saw and go to work. Tend to your own business."
Patchen asked whether he could go into the office and use
the phone to call the union hall. Fox said, "Nope, go on
back over and go to work." Patchen said he had a dime and
would use the pay phone. Patchen then walked to the pay
phone, which was about 100 feet away.25
Fox followed Patchen for about 10 feet, turned around,
walked back to where he was, and motioned Assistant Su-
perintendent Phipps to come over. After the two talked for
a minute , Phipps came over to Patchen, who was on the
phone describing the laborers' dismantling of the forms to
the Union' s assistant business agent, and said, "Ed, you are
fired. You got a 24-hour notice." 26
After completing his telephone call, Patchen came to Fox
in the office and asked when the 24-hour period expired 27
The time was then 2 p.m. on a Friday. Fox replied, Wednes-
day at 2 p.m 28 Fox further said, in Phipps' presence, "Put-
ting up with people like you . . . I killed a son of a bitch
in Montana . . . and the son of a bitch needed killing."29
Fox told Patchen to go on back over and go to work, and
24 Other than Patchen 's statement to Fox on this occasion, there is no
evidence that Respondent knew about the Brownsville letter.
25 My findings in the foregoing paragraph are based on Patchen 's testimo-
ny. I do not credit Fox's version of the conversation -that Patchen told Fox
he was going over to see McDonough , without saying why, and Fox said that
that was Patchen's "prerogative, go right ahead." The uncontradicted evi-
dence shows that superintendent Tucker had already told Patchen that Mc-
Donough was not on the project that day. Indeed, McDonough 's absence
was the reason Patchen had come to Fox instead . Moreover , Fox's version
of the conversation provides no explanation for Patchen 's request for permis-
sion to use the office phone-a request testified to by Fox as well as Patchen.
26 My findings in the foregoing paragraph are based on Patchen 's testimo-
ny, corroborated to some extent by Fox . To the extent that Fox's testimony
differs, I credit Patchen on the basis of the witnesses' demeanor, Phipps'
failure to testify (infra, fn . 54), and the inconsistency between the undisputed
testimony that Phipps fired Patchen while he was on the phone and Fox's
testimony that an hour elapsed between his instructions to Patchen not to use
the office phone and his instructions to Phipps to fire Patchen.
27 The 24-hour period had been specified because Fox had previously
worked on projects where the steward was contractually entitled to a 24-hour
discharge notice . No such requirement was included in the union contract
covering the instant project.
28 My findings in this sentence are based on Patchen 's testimony. I credit
this testimony over Fox's testimony that he said 2 p.m. on Saturday, on the
basis of the witnesses ' demeanor, Phipps' failure to testify (infra, In. 54), and
the uncontradicted evidence that Patchen reported to work on Monday at
his usual hour and was paid for the time he worked.
29 My findings in this sentence are based on Patchen 's testimony. While
I accept Fox 's testimony that he had never in fact killed or assaulted a man
(or even paid a fine for a parking ticket), I do not believe his denial that he
threatened Patchen . Rather, the testimony regarding such threats-which
likely amounted to mere bluff-is to some extent corroborated by the testi-
that when he told a man to do something he expected the
man to do it or else Fox would use "physical force" to get
it done.
Patchen worked for the rest of the day on Friday, Decem-
ber 7. He also told the Union's assistant business agent that
he had notice that he would work until Wednesday at 2
o'clock. Patchen reported to work as usual on Monday,
December 10. At 8:30 a.m., Dittenber came over to the
sawdeck and brought Patchen to a meeting with McDo-
nough in his office. The parties discussed the lunch shack
grievance. Dittenber informed McDonough that Patchen
had been discharged effective the following Wednesday.
McDonough, who had not previously heard that Patchen
had been discharged, said that he knew Patchen had wanted
to get off the steward job and that McDonough had talked
him into staying. McDonough further said, "Well, you
know, I've got to stand behind my superintendent, even
though I don't agree with him." At Dittenber's request,
McDonough agreed to talk to Fox and see what he could
find out about it. McDonough testified that he did talk with
Fox about the matter, that he was satisfied there were rea-
sons to terminate Patchen, and that Fox had said Patchen
disobeyed orders; but neither McDonough nor Fox testified
about what disobeyed orders or other termination reasons
were discussed during this conversation (cf., infra, fn. 54).
At about 10:30 that morning, Phipps told Patchen that he
was to be given his check that afternoon. Patchen thanked
Phipps for this information, and told his fellow employees,
". . . Don't quit because I got fired. You stay here on the
job, because that is what the company wants. You can hurt
them worse by staying here working than you can by leaving
because they want to shut the job down anyhow and they
are just looking for an excuse...." 30
At 1:30 p.m. Phipps came by and said, "Well, here is your
check . . . I told Mr. Fox that I had a dental appointment
and I want to get the hell out of here before hell breaks
loose." Patchen said, in effect, that the check paid him for
30 minutes' time that he had not worked. Phipps brought
the check back about 2 p.m., together with three copies of
a termination slip, signed by Phipps, on which Fox had
written as the reason for termination, "Refused to take or-
ders." Patchen said, "Why hell, I don't sign that. Would
you?" Phipps said that he would not, took all three copies
back, and said, "I want you to know, Ed, this is not my
idea." Patchen inventoried out the sawdeck to Phipps and
gave him the keys to the desks containing tools and equip-
ment which Patchen had been checking after and watching
after. Phipps then left the sawdeck. Patchen thereupon
swept the sawdeck off, covered up the saw, took his tools
out, and put them in his truck.3t
mony regarding Fox's previous display of a pistol and his baiting of Patchen
regarding the fire extinguisher boxes. In fact, Fox testified on cross-examina-
tion merely that he did not "think" he ever said that he had killed a man.
30 Respondent 's December 5 conduct in taking employees off the rebuild-
ing of the lunch shack in order to pour concrete, and its December 10
attempts to halt the work stoppage following Patchen 's discharge, show that
Respondent did not in fact want to shut down the job. I do not believe that
Patchen supposed otherwise. Rather , I think he was engaged in a somewhat
devious attempt to forestall a strike among employees whose already existing
irritation with Respondent would (he justifiably anticipated) be exacerbated
by his discharge.
31 My findings in the foregoing paragraph are based on Patchen's uncon-
tradicted testimony . Phipps did not testify (infra, fn. 54).
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this point Patchen saw Fox and asked him to put down
on the slip orders Patchen had refused to take. Fox said he
had to use the toilet facility, and told Patchen to go up to
the office and wait 32 While Patchen was waiting for Fox's
return, McDonough came up, said that Patchen had got all
the men to stop working, and threatened to sue him. Patch-
en replied that he had told them to stay on the job, but they
could not work without a steward. McDonough said,
"Damn it, you got to appoint a steward." Patchen replied
that he could not appoint a steward, that he had been fired,
that he was "done at 2:30," and that he had nothing to say
about the job 33 McDonough asserted that Patchen had
been paid for all day; Patchen denied this. McDonough
replied that Patchen was supposed to have been. Patchen
pulled out his pay check, covering 6 hours that day. Mc-
Donough said, "Let me have that check and I'll go get you
another one. You were supposed to have been paid for all
day." Patchen declined on the ground that he did not want
to be paid more than he had earned.
Patchen then went to the portable toilet. When he re-
turned, Fox and McDonough were standing there. Patchen
asked Fox to put on the termination slip what orders he
refused to take. Fox replied, "You were standing down there
talking to several ironworkers." Patchen replied, "Why, you
are a damned liar, there was not but five and I think I could
prove there was only four." Patchen then suggested to Mc-
Donough that they go to the office.
When they reached the office, McDonough crossed out
the words "Refused to take orders" on the termination slip
and substituted the words "Personality conflict." McDo-
nough again offered to pay Patchen for the full day, but
Patchen again declined. Fox, who had been sitting outside
the office listening to the Patchen-McDonough conversa-
tion, came into the office and sat down. Patchen "said a few
things to Mr. Fox about being able to tell the truth, due to
his size," and then remarked to McDonough, "I think I'd
better get the hell out of here" McDonough got up, shook
Patchen's hand, and said, "It's been nice knowing you, Ed,
and I'll be seeing you."34
32 My findings in this sentence are based on Patchen 's testimony. For the
reasons discussed infra , part II , D, 2, and in view of the witnesses ' demeanor,
I do not credit Fox's testimony that he replied that Patchen "simply .. .
refused to obey my orders when I gave him orders " and he did not have time
to be more specific.
33 Patchen had previously arranged for the appointment of a steward on
one occasion when an automobile accident delayed Patchen 's arrival on the
pr^ect and , perhaps, on other occasions as well.
My findings in this paragraph are based on Patchen 's testimony. I dis-
credit McDonough 's version of why the termination slip was changed on the
basis of the witnesses ' demeanor ; Respondent's unexplained failure to call
as a witness its business manager , Harry Goodlow , who according to Mc-
Donough-but not Patchen-physically changed the slip; and the fact that
the conduct which McDonough attributed to Patchen in connection with
why the termination slip was changed is inconsistent with Patchen 's charac-
ter as revealed by his other conduct . More specifically , although McDonough
testified that he directed Goodlow to change Patchen's termination slip
because Patchen had said he would rather draw unemployment insurance
than work , the testimony stands uncontradicted that Patchen insisted on
working for the full period covered by his final paycheck before he would
accept it ; that during his discussions with McDonough following his dis-
charge he consistently declined (on the ground that the extra amount ten-
dered was unearned ) McDonough 's repeated offers to pay him for a full day;
that Patchen had previously sought to confer with McDonough on his own
time about his troubles as a steward while working for Respondent; and that
D. Analysis and Conclusions
1. Whether the existence of the arbitration clause calls
for dismissal of the complaint
Respondent seeks dismissal of the complaint on the
ground that Patchen's discharge is cognizable under the
contractual arbitration clause, article XII, which provides,
in part:
Any grievance or dispute as to the proper interpreta-
tion of this Agreement, or any condition of employ-
ment not specifically covered hereby, shall be first
referred to the Business Agent of the Union and the
member of the Employer involved, or its representa-
tive. In the event the Business Agent of the Union and
the member of Employer are unable to settle the dis-
pute, it shall be referred to an impartial arbitrator
agreed upon by the parties. If the parties are unable to
agree upon an impartial arbitrator, they shall draw up
a list of five names from the United States Conciliation
Service. On receiving such list, Employer and Union
shall each strike two names, and the person whose
name on the list is not stricken shall become the impar-
tial arbitrator. The dispute shall be submitted to this
impartial arbitrator and his decision shall be final, con-
clusive and binding upon the parties to this Agreement.
There shall be no strike, lockout, slow down, or ces-
sation of work pending the decision of any grievance
or dispute covered by this provision.
Article VI of the contract provides, in relevant part, "In
the spirit of harmony it has been agreed that there will be
no discrimination or reprisals, either collectively or individ-
ually, which are arbitrary or unjustifiable." In view of this
clause , the Union's contractual privilege to have a steward
on the job at all times when the men are working, the broad
language of the arbitration clause, and the presumption in
favor of arbitrability,35 I agree with Respondent that a griev-
ance based on steward Patchen's discharge is subject to the
contractual arbitration clause . A contrary conclusion is not
called for by the fact that whereas the steward clause calls
for a steward "on the job at all times while the men are
working," a strike or cessation of work is contractually for-
bidden "pending the decision of any grievance or dispute
covered by [the arbitration] provisions."36 Rather than ren-
dering a steward's discharge strikeable and thereby except-
ing it from the scope of the arbitration clause , the function
of the quoted language in the steward clause is to permit
employees to refuse to work if there is no steward at all on
the job-although not because a particular steward had
during his initial tour of duty on the project, Patchen had "worked himself
out of a job." Further, I find unworthy of belief McDonough's testimony that
the language inserted on the terminated slip at his direction-"Personality
conflict"-"had no meaning at the time."
35 Alexander v. Gardner-Denver Co., 94 S.Ct. 1011, 1018-19.
36 Cf. Alexander v. Gardner-Denver, supra, 94 S.Ct. at 1023.
MORRISON -KNUDSEN CO., INC. 287
been discharged. I regard as somewhat strained the Union's
contention that the language "as to the proper interpreta-
tion of the agreement" excludes grievances which, as here,
allege breach of specific contract terms but turn on issues
of fact and not contract interpretation. I do not believe that
the parties intended to render factual- issue grievances ar-
bitrable under the contract only where they involve employ-
ment conditions not specifically covered by that same
contract.
However, I reject Respondent's contention that such cov-
erage calls for deferral of the instant case under the princi-
ples articulated in Collyer Insulated Wire, 192 NLRB 837
(1971). Both the existence of an express contractual provi-
sion for a steward and the record evidence regarding the
practice on the job show that initially, grievances under
article XII of the contract are ordinarily handled by the
steward. Accordingly, the claim of counsel for the General
Counsel that Patchen was discharged because he pressed
grievances in his capacity as steward alleges employer con-
duct which "strikes at the foundation of that grievance and
arbitration mechanism upon which [the Board has] relied in
the formulation of [its] Collyer doctrine. If [the Board is] to
foster the national policy favoring collective bargaining and
arbitration as a primary arena for the resolution of industri-
al disputes, as [the Board] sought to do in Collyer, by declin-
ing to intervene in disputes best settled elsewhere [the
Board], must assure [itself] that those alternative procedures
are not only `fair and regular,' but that they are or were
open, in fact, for use by the disputants. These considerations
caution against . . . abstention on a claim that a respondent
has sought, by prohibited means, to inhibit or preclude
access to the grievance procedures." 37 Accordingly, I con-
clude that the instant case is not appropriate for deferral
under Collyer.38
It is true that in United Aircraft Corporation, 204 NLRB,
the Board did defer to an uninvoked contractual arbitration
procedure in a case where the complaint alleged, inter alia,
enforcement and threats to enforce rules more vigorously
against stewards; harassment, suspension, and disciplining
of stewards because of their grievance activity; and threats
to discipline employees for asking to be represented by a
steward. However, the United Aircraft complaint did not
allege that stewards were unlawfully discharged, and the
antisteward activities were alleged against 13 first-level su-
pervisors (among a total of 1,645 supervisors) in plants em-
ploying more than 32,000 employees; whereas counsel for
the General Counsel here alleges that the superintendent of
the entire project discharged the only carpenter steward on
the project, which employed 56 carpenters at the maximum,
37 Joseph T. Ryerson and Sons, Inc., 199 NLRB 461, and cases cited infra,
In. 38.
39 North Shore Publishing Co., 206 NLRB 42 (1973); Diversified Industries,
a Division of Independent Stave Co., 208 NLRB 233, In. 1, initial ALJD.
39 Indeed , the evidence indicates that a prior job superintendent had en-
gaged in a similarly motivated reprisal against the same steward on the same
project some 9 months earlier . While Sec. 10 (b) bars a finding that such
conduct constituted an unfair labor practice , such evidence would appear to
be cognizable in determining whether to exercise the discretion to defer. Cf.
N.L.R.B. v. Lundy Mfg. Co., 316 F.2d 921,927 (C.A. 2,1963), cert. denied 375
U.S. 895.
because of his activities in processing carpenters' griev-
ances. 9
Indeed, Gardner-Denver, supra, 94 S.Ct. at 1021-22, may
put into question the propriety of deferring to arbitration in
any case where, as here, the complaint alleges a breach of
an employee's individual statutory right not to be discrimi-
nated against because of his union or other protected con-
certed activity, particularly where, as here, the alleged
discrimination has never been made the subject of a griev-
ance under the contractual grievance-arbitration procedure.
The Court there held (citing cases arising under the Nation-
al Labor Relations Act) that a union may waive certain
statutory rights (such as the right to strike) "conferred on
employees collectively to foster the processes of bargain-
ing." However, the Court went on to say that Title VII of
the Civil Rights Act of 1964 (42 U.S. & 2000e et seq.) "stands
on plainly different ground; it concerns not majoritarian
processes, but an individual's right to equal employment
opportunities. Title VII's strictures are absolute and repre-
sent a congressional command that each employee be free
from discriminatory practices. Of necessity, the rights con-
ferred can form no part of the collective-bargaining process
since waiver of these rights would defeat the paramount
congressional purpose behind Title VII." The Court con-
cluded that an employee's rights under Title VII are not
susceptible to prospective waiver and that "In no event can
the submission to arbitration of a claim under the nondiscri-
mination clause of a collective-bargaining agreement con-
stitute a binding waiver with respect to an employee's rights
under Title VII." Further, relying on a case arising under
the National Labor Relations Act (J. I. Case Company v.
N.L.R.B., 321 U.S. 332, 338-339), the Court stated that no
concession other than those made by the union in the collec-
tive-bargaining agreement may be exacted as the price for
enforcing the employee's Title VII rights through contractu-
al procedures. Particularly, in view of Gardner-Denver's reli-
ance on National Labor Relations Act cases, it is at least
arguable that the Supreme Court would give equal weight,
in determining the role of a contractual arbitration clause,
to the Congressional command that each employee be free
from discriminatory practices because of activities protect-
ed by Section 7 of the National Labor Relations Act.
Further, Gardner-Denver relied in part on the arbitrator's
lack of power to apply his interpretation of the law rather
than of the agreement, on his duty to follow the agreement
where it conflicts with the law, on the fact that a substantial
number of labor arbitrators are not lawyers, on the limita-
tions of the fact-finding process in arbitral as compared
with judicial proceedings, on the fact that arbitrators have
no obligation to the court to give their reason for the award,
and on the union's exclusive control over the manner of and
the extent to which an individual grievance is presented or
is subordinated to the collective interest of all unit employ-
ees (94 S. Ct. at 1022-24). Arguably, all these considerations
are likewise present in cases arising under the National
Labor Relations Act. Moreover, Wilko v. Swan, 346 U.S.
427, 434 438, may be relevant to the deferral issue in Na-
tional Labor Relations Act cases, as Gardner-Denver held it
to be in Title VII cases (94 S.Ct. at 1021). Wilko held that
a buyer's agreement to arbitrate a future claim cognizable
in Federal district court under the Securities Act of 1933 (9
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S.C. § 1, et seq.) did not effectively waive the buyer's right
of access to that court because (1) the Securities Act was
drafted with an eye to the disadvantages under which secu-
rities buyers labor;40 (2) such a purported waiver constitutes
a surrender by the buyer of the choice of forum afforded
him by the Securities Act, made at a time when he is less
able to judge the weight of the handicap the Securities Act
places upon his adversary; and (3) the effectiveness of the
Securities Act's advantages to the buyer is less in arbitration
than in judicial proceedings, because the arbitrators' award
can be made without explanation of their reasons and,
therefore, their interpretation of the law cannot be exam-
ined.
Of course, Gardner-Denver does not necessarily mandate
Collyer's modification. Thus, Gardner-Denver relied on, inter
alia, legislative history which manifested a congressional
intent to allow an individual to pursue independently his
rights under both Title VII and other applicable state and
Federal statutes (94 S.Ct. at 1019-20). However, Section
203(d) of Title II of the Labor Management Relations Act
of 1947 (of which the National Labor Relations Act is Title
I) states, "Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the application
or interpretation of an existing collective-bargaining agree-
ment." Moreover, Gardner-Denver put at issue whether the
availability of an arbitral remedy should lead to dismissal
of a lawsuit brought in a court of general jurisdiction;
whereas deferral to arbitration under Collyer means that an
administrative agency with special expertise in labor rela-
tions and in applying the National Labor Relations Act will
retain jurisdiction for purpose , inter alia , of entertaining a
motion for reconsideration on a showing that the grievance
or arbitration procedures have not been fair and regular or
have reached a result which is repugnant to the Act 41
2. Whether Patchen was discharged because
of his grievance activity as Union steward
Between Patchen's March 1973 appointment as steward
and his December 1973 termination, he processed a series
of grievances regarding work assignments and an eating
shack. Both project superintendent Love and his successor
in that job, Goerge Fox, not only attempted to conceal from
Patchen the circumstances which gave rise to some of these
grievances, but also repeatedly displayed resentment of
Patchen's grievance activities. Thus, when Patchen com-
plained in March 1973 that laborers were doing carpenters'
work, Love initially denied it and then, when Patchen per-
sisted in this assertion, discharged him. Love did not rein-
state Patchen until after his discharge had caused the
carpenters to lay down their tools, even though Love admit-
ted that laborers had indeed been performing carpenters'
work. Love's successor, Fox, admitted before becoming
00 Cf. N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. I, 33.
41 During the hearing, I expressly drew counsel's attention to Ryerson and
North Shore Publishing (both of which arguable aid the cause of the Union
and counsel for the General Counsel), United Aircraft (which arguably aids
Respondent), and Gardner-Denver. The Union's brief cites only the first two
cases, and Respondent 's cites only the third. To that extent, counsel have
rejected the opportunity to help themselves, as well as me.
project superintendent that he "didn't care about the union
and he didn't care about them telling him how to run any-
thing." Thereafter, in October 1973, when Patchen com-
plained to Fox and then to the union business agent that
cement finishers were doing carpenters' work, Fox said,
"We are going to run our own job" and "were getting tired
of the union telling them what to do." When Patchen again
telephoned the Union about the matter, Fox told him not
to "bother" with the grievance, to "get [his] nose out of it,"
and to get back to work and "not worry about it no more.
It wasn't any of [Patchen's] business." Further, on various
occasions when Patchen telephoned the union hall about
Fox's having other crafts do carpenters' work, Fox told him,
"I run this job. I don't need the union telling me how to do
it.,,
On the day Patchen was told he was fired, Patchen once
again complained to Fox that another craft was doing car-
penters' work-specifically, that laborers were dismantling
forms which were not to be thrown away. When Fox assert-
ed that the forms were indeed going to be thrown away,
Patchen called Fox's bluff by stating that in that event
Patchen would haul away the 20-foot 2 by 4's and the 4 by
8-sheets of plywood. Fox tried to retreat to the position that
half were going to be thrown away, but Patchen insisted that
this assertion was belied by the shortage of materials on
Patchen's own sawdeck. Fox thereupon told him to go back
to work and tend to his own business. Patchen, however,
asked for permission to use the office phone to call the
Union hall (as he had previously done many times on Union
business), obviously about the work assignment grievance.
Fox said, "Nope, go on back and go to work." Patchen then
said he would use the pay phone, and proceeded to do so.
At this point, Fox instructed Phipps to discharge Patchen,
and Phipps did so while Patchen was in the act of relating
the grievance to the Union's assistant business agent. A few
minutes later, Fox impliedly threatened to kill Patchen. On
Patchen's last day of employment, Patchen asked for a more
specific reason for termination than the one entered by Fox
on Patchen's termination slip-namely "Refused to take
orders," which was at the very least susceptible to the inter-
pretation that he had refused to take orders to return to
work rather than calling the union hall about grievances.
McDonough thereupon changed the entry to "Personality
conflict." Because there is no evidence that Patchen had any
conflicts with anyone other than Fox, because these con-
flicts were due mostly if not entirely to Patchen's persistence
in processing grievances over Fox's opposition, and because
McDonough had admittedly discussed with Fox his reasons
for terminating Patchen, I conclude that this entry was in
effect an admission by McDonough that Patchen was dis-
charged because of conflicts with Fox about Patchen's
grievance activity. Accordingly, the credited evidence
creates a strong prima facie case that Patchen's grievance
activity as a steward motivated his discharge.
I conclude that this prima facie case is not overcome by
the evidence regarding Respondent's explanations for
Patchen's discharge. Thus, Fox testified on cross-examina-
tion that he made up his mind to have Patchen fired "when
he came in and stood on the wet concrete." However, earlier
in Fox's cross-examination Fox testified that Patchen was
discharged partly because he stood on "green" concrete,
MORRISON-KNUDSEN CO., INC. 289
and Fox admitted that both he (a much heavier man than
Patchen) and two Government inspectors were also stand-
ing on green concrete at the time ° Further, Fox sought to
minimize the age of the concrete at the time of this incident
by testifying that it occurred at 8 or 9 a.m. (8 or 9 hours after
the concrete was poured), an improbably early hour In view
of the fact that Patchen's work day began at 8 a .m. and, by
Fox's own admission, the ironworkers incident (which ac-
cording to him took about 15 minutes) and the fire extin-
guisher incident occurred on the same day as, but before,
the cement incident. Indeed, McDonough testified that
Patchen had not yet been discharged when McDonough left
the project at noon on December 7. Moreover, by his own
testimony Fox failed to mention the cement incident when
Patchen asked what orders he was being discharged for
disobeying. For the foregoing reasons , I credit Patchen's
version of the incident, discredit Fox's version except to the
extent that it is corroborated by Patchen, and find that Fox
did not discharge Patchen because he stood on green ce-
ment on which four others-including Fox himself-were
already standing.
In connection with his reasons for discharging Patchen,
Fox further testified, "I believe I told him to quit talking to
people too much, that he talked to everybody who walked
by. He stopped, talked for, well-sometimes that I have
time enough to stand and watch him," and that "There were
several times that I had warned him about his long conver-
sations ." Aside from the ironworkers incident discussed in-
fra, there is no evidence of any specific occasion on which
Fox himself ever reprimanded or warned Patchen. Fox testi-
fied that he hold assistant superintendent Phipps to " investi-
gate" incidents where Patchen was allegedly talking too
much, and to warn Patchen; but Fox conceded that he
never asked, and Phipps never told him, whether Patchen's
conversations were related to his steward's duties, and
Phipps did not testify (infra, fn. 54).43 Further, Fox conced-
ed that although Respondent has a system of writing up the
work of certain individuals on the job, Fox never received
any such writeups on Patchen and, so far as Fox knew, none
was ever made. Moreover, although Fox testified that he
kept "private logs" about Patchen at Fox' s home , such logs
were not produced, nor was their absence explained (cf.,
infra, fn. 54). On the basis of such evidence and the witness-
es' demeanor, I credit (except as to the ironworkers incident,
42 Fox testified that he and the inspectors were standing there so the
inspectors could show him the damage , and the cement finisher was there to
cover the tracks again . However, there is no evidence that Patchen could be
expected to know this; rather, he testified , "If a man as big as [Fox, supra,
fn. 22, and attached test] could stand on that concrete , I sure as heck couldn't
hurt it." Moreover , according to Fox , Patchen was standing on a spot which
had to be refinished anyway.
43 McDonough testified that "Many times" it came to his attention "about
[Patchen 's] continuous conversation with various people ." Because McDo-
nough admitted that he had never observed Patchen in his work and had
never reprimanded him or directed his reprimand , because McDonough did
not specify who or what indicated to him that Patchen was talking too much,
and considering McDonough 's demeanor , I discredit his testimony that he
had reason to believe that Patchen was talking too much.
44 While he testified that he would not necessarily receive these reports and
that perhaps his subordinates did not perform their duty to prepare them,
Respondent produced neither these reports nor positive evidence that its
foremen did not in fact adhere to Respondent's system about them . Cf., infra,
In. 54.
infra, fn. 47; and the pistol discussion initiated by Fox, text
attached to fn. 16, supra) Patchen's testimony that he had
never received any warning notice or reprimands about his
work and had never been told by any supervisor not to go
around the job in pursuance of his steward's duties; and
(except as to the ironworkers incident, infra, fn. 47) discredit
Fox's testimony that he reprimanded Patchen and instruct-
ed Phipps to reprimand him for talking too much. Further,
in view of this finding regarding the absence of reprimands
or instructions to reprimand, Fox's testimony that he was a
busy man on the job with limited time to observe the em-
ployees' activities, the fact that Patchen' s duties on the saw-
deck limited his contacts with other employees, Fox's
inability to remember the approximate time when Patchen's
alleged excessive talking on the job began, and the witness-
es' demeanor , I credit Patchen's testimony that he spent
about 3 or 4 hours' working time a month (not claimed to
exceed the reasonable time he was contractually permitted
to spend) 45 performing his steward's duties and did not
spend any appreciable amount of working time in convers-
ing about matters unrelated to the job; and discredit Fox's
testimony that Patchen spent more than one working hour
a day purportedly performing steward's work. For the same
reasons, I find that Fox did not honestly believe that Patch-
en was spending an excessive amount of working time in
conversing about matters unrelated to the job or in perform-
ing steward's work 46
Fox further testified that the ironworkers incident on the
morning of December 7 played a part in his decision later
that day to discharge Patchen. As previously noted, I do not
fully credit either Patchen or Fox with respect to what hap-
pened during this incident. Patchen denied conversing with
the ironworkers at all on this occasion. However, he admit-
ted that on observing him with the ironworkers Fox re-
marked ". . . you can't learn a damned thing listening to
those ironworkers," 47 and further admitted that when Fox
later accused him of "standing down there talking to seven
ironworkers," he replied ". . . there was not but five and I
think I can prove there was only four." Moreover , in des-
cribing the incident Patchen initially said that when Fox
called him over, "I didn't say anything more to the iron-
workers" (emphasis supplied)48 Accordingly, I find that on
this occasion, Patchen shut down the saw (as he admitted)
and engaged in a conversation with five (probably) iron-
workers on the sawdeck while Fox was looking at them.49
However, on the basis of Fox's demeanor, the fact that he
45 The project employed between 26 and 56 carpenters . Respondent's brief
suggests that Patchen wasted time by checking out every new man on the job
whether or not he was a carpenter . However, as Patchen pointed out, such
activity was necessary to enable him to determine whether or not the stranger
was a carpenter , and whether or not he was a member of management with
whom Patchen, as carpenters' steward, might need to deal.
46 In view of this finding, I need not and do not reach the question of
whether Patchen's discharge would be lawful if motivated by an honest but
mistaken belief that his steward 's activity consumed more working time than
contractually permitted . Cf. N.L. R.B. v. Burnup and Sims , Inc., 379 U.S. 21
(1964); Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 803-804, especially
In. 10.
07 To this extent , I discredit Patchen 's otherwise credible testimony that he
was never warned or reprimanded about his work.
48 He then sought to repair his testimony by adding, " Well, I never did get
to say anything to them"
49 For these reasons and because Patchen testified that he was preparing
Continued
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was admittedly a busy man who had to see that the whole
job progressed, and the probabilities of the situation, I do
not believe Fox's further testimony that he observed them
for "maybe 15 minutes," before breaking in. Further, be-
cause Phipps was not produced to substantiate Fox's testi-
mony that in connection with this incident he told Phipps
that Fox was going to get rid of Patchen (infra, fn. 54),
because of Fox's efforts to exaggerate Patchen's possible
timewasting on this occasion, because there is no evidence
that Fox tried to find out whether Patchen had a legitimate
reason (as he did have, supra, fn. 49) for talking to the
ironworkers, because Fox's initial reaction was to give
Patchen a mild reprimand and assign him to building fire
extinguisher boxes, and in view of Fox's demeanor, I do not
credit his testimony that the ironworkers incident played a
part in Fox's decision to discharge Patchen.
Although Fox also testified about two additional inci-
dents of alleged misconduct by Patchen, Fox did not in
terms testify that such incidents played a part in his dis-
charge decision, and Respondent's counsel did not allude to
either of them in his opening statement. I conclude that Fox
was not seriously concerned with either of these incidents
even at the time they occurred and that neither of them
played a role in his discharge decision.
Thus, Fox testified that "for months"-or "for a good
month"-Patchen kept a "vegetable stand" by his saw, and
"everybody who went by, he talked about his beautiful
vegetable gardens, and giving them vegetables ." However,
Fox admitted that "on a couple of occasions" Patchen
"could have" given Fox some vegetables to take home to his
wife, that he told Patchen to stop distributing vegetables in
September or October (that is, perhaps as long as 3 months
before Patchen's termination), and that Fox did not know
whether or not Patchen thereafter kept on doing this.
Fox also testified that he had sent assistant superinten-
dent Phipps over to "bawl [Patchen] out" for using a half
hour or more of company time taking photographs of a
parade which included some horses. However, Fox did not
remember when this alleged incident occurred; when asked
whether Patchen had done this at the request of the carpen-
ter foreman , Fox replied, "If [the foreman] did he was vio-
lating the rules"; when asked whether other employees were
watching the horses, Fox said that "if" they did, "I'm sure
other ones got a chewing for it too"; and he initially testified
that the horses were "beer horses" and then said that he did
not know whether they were beer horses. Moreover, Phipps
did not testify (infra, fn. 54), there is no direct evidence that
anyone ever mentioned this alleged incident to Patchen, and
Patchen testified that he had never received any warning
notice or reprimands about his work-testimony which I
to warn the ironworkers about the dangers of standing behind the saw, I
accept his testimony that he shut down the saw for this reason and conclude
that the conversation included a discussion of this matter . Because of
Patchett's credible testimony that the "anti-kick fingers" on the saw were
somewhat worn , and because many industrial safety devices are not fail-safe,
I do not believe that my finding in this connection is rendered unlikely by
Fox's optimistic testimony-based in part on the fact that the saw was shut
off-that. "there would not have been no way in the world that these men
could have been in any type of danger ." However , there is no substantial
evidence that Fox overheard much of the conversation.
credit except to the extent noted in connection with the
ironworkers and pistol incidents.
In short, Fox's testimony that he discharged Patchen for
lawful reasons is not worthy of belief. I conclude that the
evidence preponderantly shows that Fox discharged Patch-
en because of resentment at Patchen's activities as steward
in handling employee grievances.50 By such conduct, Re-
spondent violated Section 8(a)(1) and (3) of the Act. Diversi-
fied Industries, supra, 208 NLRB 233 (initial ALJD);
N.L.R B. v. Bowman Transportation, Inc., 314 F.2d 497, 498
(C.A. 5, 1963).
3. Whether Respondent was deprived of
due process of law
At the outset of the hearing, Respondent's counsel moved
to dismiss the complaint on the ground that Board proce-
dures "don't afford the Respondent due process"-more
specifically, that the procedures "don't allow or don't pro-
vide for the Respondent to determine the full nature of the
charges or the complaint, the facts of the complaint, in order
to properly prepare," and that "the Board does not allow
Respondent to read any statements that the Board investi-
gator may have obtained, in particular, those statements
that I'm interested in, which may contain exculpatory state-
ments 51 The [rules stated by the] Supreme Court in a recent
decision relating to the Federal rules of discovery, which
requires the prosecution to give exculpatory information to
the defendant 52 ... should apply equally here . . . consid-
ering the great disparity in the investigative powers .. .
between the National Labor Relations Board and the Re-
spondent." Respondent's counsel renewed this motion after
the Union and counsel for the General Counsel had rested.
As an additional basis for granting this motion,
Respondent's counsel subsequently asserted that prior to
the hearing, counsel for the General Counsel had stated that
he did not intend to rely on certain relatively early events
(apparently, those taking place while Love was superinten-
dent); counsel for the General Counsel conceded this, but
further stated without contradiction that some of these mat-
ters developed "in pretrying this case yesterday afternoon
for approximately three hours." I adhere to my hearing
action in denying such motions.
Of course, I have no power to alter the Board's rules and
regulations attacked by Respondent.53 Nor is it within my
50 However , in so finding , I do not rely on Administrative Law Judge
Ralph Winkler's decision in Morrison -Knudsen Co., Inc., 210 NLRB No. 36
(1974), of which the Union requested me to take judicial notice . That case
presents an issue quite different from that presented here , namely, the pro-
priety of a Teamsters steward 's discharge on a project in North Platte, Ne-
braska , for participating in a strike which allegedgly constituted a breach of
contract.
51 While it is true that counsel was particularly interested in obtaining
exculpatory information, this portion of his motion leads me to conclude that
Respondent's brief is inaccurate in stating that "Respondent's Motion in the
instant case only related to exculpatory information that the Board's investi-
gator might have obtained ." (Emphasis supplied.)
52 Counsel failed to specify this Supreme Court decision either at the
hearing or in his brief.
53 Cf . Wellman Industries, Inc. v. N.L.R.B., 490 F.2d 427 (C.A. 4, 1974);
North American Rockwell Corporation v. N.L.R.B., 389 F.2d 866, 873-874
(C.A. 10, 1968); Johnnie's Poultry, Inc., 146 NLRB 770, 774-776, enforcement
denied 344 F.2d 617 (C.A. 8, 1965); Texas Industries, Inc. v. N.L.R.B., 336
F.2d 128, 132-134 (C.A. 5, 1964); N. L. R. B. v. Interboro Contractors, Inc., 432
MORRISON-KNUDSEN CO., INC. 291
competence to determine whether the long standing Board
policy of entertaining a motion for a bill of particulars in
appropriate circumstances (e.g., Walsh-Lumpkin Wholesale
Drug Co., 129 NLRB 294, 295, enfd. 291 F.2d 751 (C.A. 8) ),
should be reflected in a Board rule which specifies this kind
of motion. However, I conclude that these alleged deficien-
cies in the Board's rules did not deprive Respondent of a fair
trial. Thus, Respondent's counsel made no claim that he
was in fact unaware of the complaint's theory (which, as it
happens, is set forth in the charge) or of the evidence which
counsel for the General Counsel intended to adduce. Fur-
ther, counsel did not seek to explain his failure to move for
a bill of particulars on the ground that he was unaware that
such a motion would be entertained, but merely alleged that
he did not think that enough facts would have been set forth
if he had done so. Moreover, before the first witness had
testified, I drew counsel's attention to Section 102.118(b) of
the Board's Rules and Regulations, Series 8, as amended,
which requires counsel for the General Counsel to comply
with a demand by Respondent's counsel to supply a wit-
ness' pretrial statements after he has testified for the Gen-
eral Counsel, and counsel did in fact thereby obtain the
pretrial statement of Patchen, the sole witness called by
counsel for the General Counsel. It does not appear that
Respondent ever requested General Counsel Peter G. Nash
to give regional counsel permission, under Section 102.
118(a), to disclose other material in the investigatory file.
See Elmer P. Davis v. Braswell Motor Freight Lines, Inc.,
363 F.2d 600, 602-603 (C.A. 5, 1966). Also, Respondent's
counsel conceded that prior to the issuance of the com-
plaint, the Doard investigator asked McDonough and Fox
(in the presence of Respondent's counsel) questions which
were based in large part on the information obtained from
Patchen. Furthermore, immediately after the Union and
counsel for the General Counsel had rested their case and
again during Fox's cross-examination, Respondent's coun-
sel stated that he did not want a continuance in order to
enable him to call additional witnesses.54
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Edwin L. Patchen because of his grievance
F.2d 854, 857-859 (C.A. 2,1970); Rutter-Rex Co., Inc. v. N.L.R.B., 473 F.2d
223, 231-234 (C.A. 5, 1973), cert. denied 414 U.S. 822.
54 One of the witnesses specifically referred to was Phipps, who at the
time of the hearing in Lincoln, Nebraska , was employed by Respondent in
Norfolk , Virginia . The complaint specifically alleged that Phipps was
Respondent's assistant superintendent , although without specifying the rele-
vance of this allegation . Further, Respondent's witness Fox (as well as
Patchen) testified that it was Phipps who advised Patchen about his dis-
charge , the unfair labor practice specified in the complaint . Under these
circumstances , Respondent 's failure to call Phipps as a witness leads me to
infer that his testimony would not have been favorable to Respondent.
Golden State Bottling Co., Inc., d/b/a/ Pepsi-Cola Bottling Company of Sa-
cremento v. N.L.R.B., 414 U.S. 168 ( 1973); International Union, United Auto-
mobile, Aerospace, and Agricultural Implement Workers ofAmerica v. N.L.R.
B. (Gyrodyne Co. of America(, 459 F.2d 1329, 1335-46 (C.A.D.C., 1972).
activity as a steward for the Union.
4. Such unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom, or from like or related conduct.
I shall also recommend that Respondent offer reinstatement
to Patchen, and make him whole for any loss of pay he may
have suffered by reason of his unlawful discharge, by pay-
ment to him of a sum of money equal to that which he
normally would have earned from the date of discharge to
the date of a valid offer of reinstatement less his net earnings
during this period, to be computed in the manner described
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1963). I shall also
recommend that Respondent post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended
Order:
ORDER55
Respondent, Morrison-Knudsen Company, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise taking adverse action
against any employee because he has presented grievances
in a manner constituting concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
(b) Discouraging presentation of grievances through or
membership in United Brotherhood of Carpenters and
Joiners of America, Local No. 1055, AFL-CIO, or any
other labor organization, by discharge, or any other dis-
crimination, in regard to hire or tenure of employment or
any terms or condition of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Edwin L. Patchen immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges.
(b) Make Patchen whole for any loss of pay suffered by
reason of his discharge in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, as well as all other records neces-
55 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and recommended Order which follow here-
in shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted
by the Board and become its findings , conclusions, and Order, and all objec-
tions thereto shall be deemed waived for all purposes.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary or useful in analyzing and computing the amount of
backpay due under the terms of this Order.
(d) Post at its Federal Building project in Lincoln, Ne-
braska, copies of the attached notice marked "Appen-
dix." 56 Copies of said notice , on forms provided by the
Regional Director for Region 17, after being duly signed by
Respondent's representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(e) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
56 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
order of the Board and abide by the following:
WE WILL NOT fire any union steward because of his
grievance activity.
WE WILL NOT fire or otherwise discriminate against
any employees because they present grievances
through or because of their membership in United
Brotherhood of Carpenters and Joiners of America,
Local No. 1055, AFL-CIO, or any other Union.
WE WILL offer to give Edwin L. Patchen his job back,
and make him whole for loss of pay, with interest,
owing to his discharge.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of these rights.
Our employees are free to join or assist the above-
named Union, or any other union, including the pre-
sentation of grievances through it , and to engage in
other concerted activity for the purpose of collective
bargaining or other mutual aid or protection. Our em-
ployees are also free to refrain from any or all such
activities.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we
violated the law by firing Edwin L. Patchen because of
his grievance activity as a union steward . We have been
ordered to post this notice . We intend to carry out the
Dated By
MORRISON-KNUDSEN COMPA-
NY, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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 . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Room 616-Two Gateway Center,
Fourth at State, Kansas City, Kansas 66101, Telephone
816-374-4588.