Reynolds & Manley Lumber Co., Inc.

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transfer Lawrence, yet fails to constitute the preponderance necessary to establish that Respondent was illegally motivated . W. C. Nabors Company, 89 NLRB 538, enfd. 196 F. 2d 272; Radio Industries , 101 NLRB 912. A violation of the Act cannot be established "on suspicion alone." Strachan Shipping Co., 87 NLRB 431, 433. It is therefore found that Re- spondent did not, in making the May 12 , 1952, transfer of Lawrence to the filtering job, discriminate against him. Consequently the termination of Lawrence's services which followed did not constitute a constructive discharge. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Subsequent to January 14, 1952, when William Lawrence was reemployed, Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3 ), and (4) of the Act. [Recommendations omitted from publication.] REYNOLDS & MANLEY LUMBERCOMPANY, INC. and INTER- NATIONAL UNION OF MINE, MILL & SMELTER WORKERS. Case No. 10-CA-1125. May 6, 1953 NOTICE TO SHOW CAUSE On November 30, 1951, the Board issued its Decision and Order in the above-entitled case.' In finding with the Trial Examiner that the Respondent's refusal to reinstate striker Joe Brown was violative of the Act, the Board relied on the principle enunciated in Mid-Continent Petroleum Corp.2 There- after, the Board issued its Decision in Rubin Brothers,, modifying in certain respects the Mid-Continent doctrine. On April 13, 1953, the Court of Appeals for the Fifth Circuit denied enforcement of the Board's Decision and Order in the Rubin Brothers case (203 F. 2d 486). Under these circumstances, the Board deems it appropriate to reexamine its decision as to Brown. Upon reconsideration, it appears to the Board that said Decision should be amended in the manner set forth in the Proposed Amendment to Decision and Order, attached hereto. Please take notice that unless on or before May 18, 1953, proper cause to the contrary is shown (with affidavit of due service of copies upon the parties to this proceeding), the National Labor Relations Board will issue as an amendment to Decision and Order, the proposed amendment attached hereto. PROPOSED AMENDMENT TO DECISION AND ORDER Paragraph 2 of the Decision and Order herein (97 NLRB 188, 191) is hereby deleted. 197 NLRB 188. 254 NLRB 912, 933-34. 3 99 NLRB 610. 104 NLRB No. 109. REYNOLDS & MANLEY LUMBER COMPANY. INC. 825 In place of the deleted paragraph , there is substituted the following: 2. We find, as did the Trial Examiner, that the Re- spondent had no legal justification for the refusal to rein- state Brown and that by such refusal the Respondent violated Section 8 (a) (1) and (3) of the Act. We do not believe , however , that the Respondent relied in any manner upon any violence during the strike as a reason for or as a defense to its refusal to reinstate Brown. The subject of violence came out for the first time in the testimony of Brown himself , called as a witness by the General Counsel , during the course of direct examina- tion. Brown merely testified that the Respondent ' s presi- dent, Manley , had told him that he could not be put back to work because the men around him felt that he had some knowledge of the shooting that had occurred during the strike and that his reinstatement might consequently "cause a great deal of trouble ." According to Brown, Manley did not accuse him of having participated in the violence . Thereafter , the Respondent ' s counsel , referring to Brown's testimony , stated that Manley might have believed that Brown was responsible for the shooting during the strike , and suggested to the Trial Examiner that the Respondent ' s president " could have that as one of the reasons in his mind why he did not wish to reinstate [Brown]." Apart from this conjectural assertion of its counsel , the Respondent at no point urged Brown ' s possible involvement or participation in violence as a defense. President Manley did not testify. Vice-President Shearhouse , who recommended to Manley that Brown not be reinstated and who was responsible with Manley for the decision not to reinstate him, testified that his recommen- dation to Manley was not based on any violence during the strike. Nor did the Respondent except to the Trial Examiner ' s finding that " the Respondent does not contend that it discharged Brown because of a good faith, although mistaken , belief that he had engaged in misconduct." Consequently , it does not appear that the Respondent has presented for determination any real issue concerning Brown ' s involvement in or association with violence.'2 We now turn to the Respondent ' s actual defense for refusing to reinstate Brown--the only one raised in the testimony of its witness and in its exceptions and brief-- viz, his abandonment of his fireman's post in the boilerroom before the arrival of a relief man in order to join the strike. The Respondent contends that Brown violated a standing instruction that no fireman was to leave his 12 Consequently, neither the principle enunciated in the Mid-Continent case (54 NLRB 912, 1933- 34), relied upon in our original Decision , nor the modification of such principle in the Rubin Brothers case (99 NLRB 610, denied enforcement 203 F . 2d 486 (C. A. 5)) is here applicable. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station without awaiting the arrival of a replacement and that, in so leaving, Brown in fact created a fire hazard. The Board has recognized the validity of the general principle that the right of certain classes of employees to engage in concerted activity is limited by the duty to take reasonable precautions to protect the employer's physical plant from such imminent damage as would result from their sudden cessation of work.t We be- lieve that the nature of Brown ' s assignment as a fireman required him to take such precautions before leaving his post to go out on strike . The validity of the Respondent's defense therefore runs on the factual issue of whether Brown took reasonable precautions to protect his em- ployer's property before joining the strike. Brown refused to leave his post and join the strike until after the expiration of his shift at 7 a. m., when a relief fireman was scheduled to arrive . Prior to the end of his shift, he began to secure the boilerroom in the event that his relief man did not report on time. Thereafter he also unsuccessfully attempted to notify his foreman of his intention to join the strike and to request relief. Brown cut off the fuel supply, cooled down the boilers to the extent possible, reduced the steam pressure , pulled out the ashes and wetted them down, swept away shavings from the feed holes, and sprinkled water around inflammable areas. After leaving the boilerroom and on his way out to the picket line, Brown informed the Respondent's executive vice president that he had cooled down the boilers. We find, as did the Trial Examiner, that under all the cir- cumstances Brown acted in a reasonable manner to prevent any reasonably foreseeable damage to the plant arising out of his cessation of work at the end of his shift. The fact that at the time Brown left there was still some heat and fire in the boilers which may well have ignited some shavings in the boilerroom about an hour later is not entitled to controlling significance , for Brown's obligation to secure the boilerroom was not that of an insurer. Otherwise, his right to strike would be seriously impaired, if not nullified altogether . Indeed, the Respondent had virtual immediate notice that Brown had left the boiler- room unattended and sent employee Nix to ascertain its condition. The fact that Nix then found the boilerroom in what appeared to be a safe condition and therefore left the room before the delayed arrival of Brown's regular relief man independently confirms the view that Brown acted in a reasonable manner to protect the Respondent's property from reasonably foreseeable damage. izaCf Carnegte-Illinois Steel Corporation (Gary Steel Works), 84 NLRB 851, affd in Albrecht v N L R B , 181 F 2d 652 (C A 7); Carnegie-Illinois Steel Corporation (Joliet Coke Works). 95 NLRB 763 REYNOLDS & MANLEY LUMBER COMPANY , INC 827 By refusing to reinstate him because he had left his post before relief arrivedi =b or because he had failed to take every precaution that might have secured the Re- spondent's property for an indefinite period of time, the Respondent unlawfully interfered with Brown' s right to engage in concerted activity. Member Peterson took no part in the consideration of the above Notice to Show Cause and Proposed Amendment to Decision and Order. 12b The fact that in joining the strike Brown acted contrary to the Respondent ' s standing instructions not to leave his post unattended did not constitute valid grounds for denying him further employment General rules of this kind, applicable to normal working conditions , may not limit the right to strike . Home Beneficial Life Insurance Company, Inc. v N L. R B , 159 F 2d 280 (C A. 4) REYNOLDS & MANLEY LUMBER COMPANY, INC. and IN- TERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS. Case No . 10-CA-1125. May 22, 1953 AMENDMENT TO DECISION AND ORDER On November 30, 1951 , the Board issued its Decision and Order in the above - entitled case.' Upon further consideration, it appeared to the Board that said Decision and Order should be amended . Accordingly, on May 6, 1953, the Board issued a Notice to Show Cause , returnable on or before May 18, 1953, why the proposed amendment attached to said Notice should not issue as an Amendment to Decision and Order . None of the parties has responded to said Notice. It is hereby ordered that said Decision and Order be, and it hereby is , amended by deleting paragraph 2 thereof, and by substituting therefor the following: 2. We find , as did the Trial Examiner , that the Respond- ent had no legal justification for the refusal to reinstate Brown and that by such refusal the Respondent violated Section 8 (a) (1) and (3) of the Act. We do not believe , however, that the Respondent relied in any manner upon any violence during the strike as a reason for or as a defense to its refusal to reinstate Brown. The subject of violence came out for the first time in the testimony of Brown himself , called as a witness by the General Counsel , during the course of direct examination . Brown merely testified that the Respondent ' s president , Manley , had told him that he could not be put back to work because the men around him felt that he had some knowledge of the shooting that had occurred during the strike and that his reinstate- ment might consequently " cause a great deal of trouble." 197 NLRB 188. 104 NLRB No 155. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Brown , Manley did not accuse him of having participated in the violence . Thereafter , the Respondent's counsel , referring to Brown's testimony , stated that Manley might have believed that Brown was responsible for the shooting during the strike , and suggested to the Trial Examiner that the Respondent's president "could have that as one of the reasons in his mind why he did not wish to reinstate [ Brown] ." Apart from this conjectural assertion of its counsel , the Respondent at no point urged Brown's possible involvement or participation in violence as a defense . President Manley did not testify. Vice- President Shearhouse , who recommended to Manley that Brown not be reinstated and who was responsible with Manley for the decision not to reinstate him, testified that his recommendation to Manley was not based on any violence during the strike. Nor did the Respondent except to the Trial Examiner's finding that " the Respondent does not contend that it discharged Brown because of a good faith , although mistaken, belief that he had engaged in misconduct." Consequently , it does not appear that the Respondent has presented for determination any real issue concerning Brown's involvement in or association with violence. 12 We now turn to the Respondent ' s actual defense for refusing to reinstate Brown -- the only one raised in the testimony of its witness and in its exceptions and brief-- viz, his abandonment of his fireman ' s post in the boiler- room before the arrival of a relief man in order to join the strike . The Respondent contends that Brown violated a standing instruction that no fireman was to leave his station without awaiting the arrival of a replacement and that, in so leaving , Brown in fact created a fire hazard. The Board has recognized the validity of the general principle that the right of certain classes of employees to engage in concerted activity is limited by the duty to take reasonable precautions to protect the employer ' s physical plant from such imminent damage as would result from their sudden cessation of work.12a We believe that the nature of Brown's assignment as a fireman required him to take such precautions before leaving his post to go out on strike. The validity of the Respondent's defense there- fore runs on the factual issue of whether Brown took reasonable precautions to protect his employer ' s property before joining the strike. Brown refused to leave his post and join the strike until after the expiration of his shift at 7 a.m ., when a relief fireman was scheduled to arrive . Prior to the end of his 12 Consequently, neither the principle enunciated in the Mid-Continent case (54 NLRB 912, 1933-34), relied upon in our original Decision , nor the modification of such principle in the Rubin Brothers case (99 NLRB 610, denied enforcement 203 F. 2d 486 (C. A 5)) is here applicable i2aCf Carnegie-Illinois Steel Corporation (Gary Steel Works) 84 NLRB 851, affd in Albrecht v N L R. B , 181 F 2d 652 (C A 7); Carnegie- Illinois Steel Corporation (Joliet Coke Works), 95 NLRB 763 PRAIRIE MANUFACTURING COMPANY 829 shift, he began to secure the boilerroom in the event that his relief man did not report on time. Thereafter he also unsuccessfully attempted to notify his foreman of his intention to join the strike and to request relief. Brown cut off the fuel supply , cooled down the boilers to the extent possible , reduced the steam pressure , pulled out the ashes and wetted them down , swept away shavings from the feed holes , and sprinkled water around inflam- mable areas . After leaving the boilerroom and on his way out to the picket line , Brown informed the Respondent's executive vice president that he had cooled down the boilers. We find , as did the Trial Examiner , that under all the circumstances Brown acted in a reasonable manner to prevent any reasonably foreseeable damage to the plant arising out of his cessation of work at the end of his shift. The fact that at the time Brown left there was still some heat and fire in the boilers which may well have ignited some shavings in the boilerroom about an hour later is not entitled to controlling significance , for Brown's obligation to secure the boilerroom was not that of an insurer. Otherwise , his right to strike would be seriously impaired , if not nullified altogether . Indeed , the Respond- ent had virtual immediate notice that Brown had left the boilerroom unattended and sent employee Nix to ascertain its condition . The fact that Nix then found the boilerroom in what appeared to be a safe condition and therefore left the room before the delayed arrival of Brown ' s regu- lar relief man independently confirms the view that Brown acted in a reasonable manner to protect the Respondent's property from reasonably foreseeable dar4age. By refusing to reinstate him because he had left his post before relief arrived'Zb or because he had failed to take every precaution that might have secured the Respondent's property for an indefinite period of time, the Respondent unlawfully interfered with Brown ' s right to engage in concerted activity. Member Peterson took no part in the consideration of the above Amendment to Decision and Order. 12b The fact that in joining the strike Brown acted contrary to the Respondent 's standing instructions not to leave his post unattended did not constitute valid grounds for denying him further employment . General rules of this kind, applicable to normal working conditions , may not limit the right to strike . Home Beneficial Life Insurance Company, Inc. v. N . L. R. B., 159 F. 2d 280 (C. A. 4). PRAIRIE MANUFACTURING COMPANY and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, Petitioner. Case No. 14-RC-2118. May 6, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Walter A. 104 NLRB No. 100.