Fruin-Colnon Construction Co.

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