Traylor-Pamco

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended. SOUTHWESTERN TRANSPORTATION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 609 Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No. 297-3551. Traylor-Pamco and Michael Cordisco. Case No. 19-CA-2808. August 10, 1965 DECISION AND ORDER On October 12, 1964, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that the Respondent had not engaged in cer- tain unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to certain portions of the Trial Examiner's Decision and supporting briefs. The Respondent further filed a reply to General Counsel's exceptions to Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, Respondent's reply to the General Counsel's exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recommended 1 We agree with our dissenting colleague that the assertion of rights arising out of a collective-bargaining agreement is within the scope of Section 7 of the Act However, the Trial Examiner concluded, and properly so, in our opinion, that Respondent did not discharge either Cordisco or Owen for such reason, but that it did discharge them for insubordinate violation of instructions. 154 NLRB No. 24. TRAYLOR-PAMCO 381 by the Trial Examiner, and orders that the Respondent, Traylor- Pamco, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recominended Order . MEMBER JENKINS, dissenting : The Trial Examiner held that the evidence did not support a finding that the Respondent discharged employees Michael Cordisco and Her- bert Owen in violation of the Act. He found that the two were dis- charged for generally unsatisfactory performance in that they were slow at their work and, moreover, each refused to eat lunch in the tunnel in violation of instructions of the Respondent's officials. My colleagues accept the Trial Examiner's conclusion. I disagree. Accepting the Trial Examiner's credibility findings, I would find that a preponderance of the credible evidence amply demonstrates that the discharges of Owen and Cordisco were violative of the Act for the reasons hereinafter set forth 2 As noted in the Trial Examiner's Decision, Cordisco was rehired by the Respondent on December 2, 1963, after an economic layoff of short duration. When he reported for work on December 2, Cordisco observed that the members of the work crews on his shift carried their lunches into the tunnel in which they were working. He and Owen, who was also hired on December 2, were the only employees who left the tunnel that day to eat in the dry shack at the tunnel entrance, where eating and rest facilities were provided. Cordisco considered requir- ing employees to eat lunch in the tunnel to be a violation of a specific provision of the collective-bargaining agreement between the Union and the Respondent. Accordingly, he reported the matter to Union Business Agent Johansen. The latter, agreeing with Cordisco, pro- ceeded to the jobsite the following morning before the commencement of work, and instructed the entire crew not to take their lunches into the tunnel. The men followed Johansen's instructions that day. Also on that day, Johansen appointed Cordisco shop steward. The next morning, December 4, Foreman Stegriy ordered the crew to take their lunches into the tunnel because concrete was to be poured that day and Stegriy wanted the men present to work the concrete until the pour was finished.3 After informing Stegriy of their refusal to eat lunch in the tunnel, Cordisco and Owen noticed that some of the crew were proceeding into the tunnel with their lunches and Cordisco reminded the crew of Johansen's instructions of the preceding day. One of the erewmembers complained of not being permitted to take his lunch into the tunnel and carried his complaint to Douglas Scheu- 21 would find also that the refusals of employees Brown , Moceri , and O'Brien, on the day of their discharge , to work in a smoke congested area were also factors which con- tributed to their discharges 3 The pouring of concrete normally lasted through the lunch hour. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mann, the contractor's representative, whose position in the Respond- ent's hierarchy was above that of Foreman Stegriy. Scheumann also noticed the men were hesitating about entering the tunnel and inquired of Stegriy as to the reason why the start of work was delayed. After Stegriy told him that it was a question of whether the men should eat in the tunnel or dry shack, Scheumann sought out Shop Steward Cor- disco, who confirmed what Stegriy had told Scheumann. In his conversation with Scheumann, Cordisco told Scheumann, "We are going to eat in the dry shack." Scheumann answered to the effect that he did not care where they ate, that his principal interest was in getting the shift started. Also mentioned by Scheumann was a meeting with Johansen scheduled for that afternoon or the next day to discuss the problem of eating in the tunnel. Following this conversation, the shift crew entered the tunnel and concrete was poured. On that date, only Cordisco and Owen left the tunnel to eat. However, Cordisco and Owen worked through the lunch hour and did not leave to eat until work on the concrete pour had been completed. On Thursday, December 5, no concrete was poured and most of the crew left the tunnel to eat lunch. On Monday, December 9, again con- crete was poured and again only Cordisco and Owen left the tunnel to eat lunch, but only after the concrete pour had been completed. The following day, Tuesday, December 10, despite the fact that no con- crete was poured, only Cordisco and Owen left the tunnel to eat. After lunch on that day, shortly before Cordisco was notified of his discharge, Foreman Stegriy summoned Cordisco and told him, "You are going to find out who is running this job, us or the union ...." Shortly thereafter Cordisco was handed his discharge by General Foreman Clark. When Cordisco asked Clark why he was being ter- minated, Clark told him, "You are not happy here." Owen's discharge followed later the same day. He did not ask, nor was he told, the reason for his discharge. The General Counsel contends that the Trial Examiner erred in his conclusion that Cordisco and Owen were discharged for cause. I would agree. I note that the Respondent denies that the refusals of Cordisco and Owen to eat in the tunnel entered into its consideration in arriving at the decision to discharge them. Instead, the Respondent's answer to the complaint herein alleges, and its witnesses maintained, that the Respondent's dissatisfaction with the general work performance of Cordisco and Owen was due entirely to their alleged slowness in per- forming their work. Yet, only minutes before Cordisco was discharged he was told by Foreman Stegriy that the Respondent was going to show Cordisco that it was running the job, not the Union. And shortly TRAYLOR-PAMCO 383 after that, when Cordisco was discharged by General Foreman Clark, he was given as the reason that he was not happy working for the Respondent. These foregoing statements I would find to be inconsistent with the Respondent's proffered reason for the discharges. This inconsistency becomes even more apparent in light of the fact that Cordisco had worked for the Respondent during a previous hiring, yet the Respond- ent raised no objection to Cordisco's alleged lack of efficiency when he was referred to the Respondent by the Union before the second hiring. Moreover, neither Cordisco nor Owen was ever warned that his work performance was unsatisfactory. On the other hand, Stegriy's remark to Cordisco, made just before Cordisco was discharged, indicates that the Respondent was displeased with Cordisco and Owen's insistence on the right, which the Union had obtained for the employees, to eat lunch outside the tunnel. Addition- ally, it should be noted that Stegriy's superior, Contractor's Represent- ative Scheumann, during his conversation with Cordisco on the morn- ing of December 5, told Cordisco that Scheumann did not care if lunch was eaten outside the tunnel. This, in effect, countermanded Stegriy's order. Moreover, I further note the fact that Cordisco employed the plural "we" in protesting to Scheumann the order to eat in the tunnel, which clearly indicated that Cordisco was protesting in his capacity as shop steward on behalf of all the employees in carrying out the instructions of Business Agent Johansen and in seeking to enforce the applicable provision of the bargaining agreement. Accordingly, I would find, upon all the foregoing, that in refusing to eat in the tunnel, Cordisco, with the active support of Owen, was not violating any legitimate managerial instruction, nor were Cordisco and Owen discharged for being inefficient workers. I would reject this basis for the discharges as an afterthought. I would find that Cordisco and Owen were discharged for asserting a lawful demand on their own behalf and on behalf of the other employees on their shift. The assertion of such demand or contract right is an implementation of the collective-bargaining agreement applicable to the protesting employees as well as others and such implementation is "but an exten- sion of the concerted activity giving rise to that argreement." 4 Therefore, I would find, unlike the Trial Examiner and my col- leagues, that Cordisco and Owen were engaged in protected, concerted activities. Accordingly, I would find that the Respondent's discharge of Cordisco and Owen for protesting eating in the tunnel interfered with, restrained, and coerced them in the exercise of their right to engage in such activity and, thereby, violated Section 8(a.) (1) of the Act. 4 Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516, 1519; Gibbs Corporation, 124 NLRB 1320; Big Boy Rigging Service, Inc., 148 NLRB 69. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before Trial Examiner Wil- liam E. Spencer in Seattle , Washington , on May 26 , 27, and 28, 1964, upon a com- plaint of the General Counsel of the National Labor Relations Board , the latter herein called the Board , dated May 1, 1964, and answer of Traylor -Pamco, the Respondent herein.' The issue litigated was whether the Respondent discharged five named employees because of their union and/or concerted activities , in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , herein called the Act Upon the entire record in the case , consideration of briefs filed with me by the Gen- eral Counsel and the Respondent , respectively, and upon my observation of the wit- nesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a joint venture of Traylor Construction Corp. of Evansville, Indi- ana, and Pacific Mechanical Constructors , Inc , of Seattle , Washington , formed in February 1963, is engaged in and has been engaged in, since June 1963, the construction of a sewer tunnel under the municipality of Metropolitan Seattle, in the vicinity of Seattle, Washington It is a member of the Mountain Pacific Chapter of the Associated General Contractors of America , Inc. (AGC), through which it bargains with labor organizations representing its employees , and through which it is a party to a labor agreement between AGC and Western District Council , Inter- national Hod Carriers, Building and Common Laborers of America , herein called the Council, in effect at all times material herein. During the last fiscal or calendar year, employer -members of AGC purchased goods and equipment valued in excess of $500,000 directly from points outside the State of Washington , and the Respondent purchased goods and equipment valued in excess of $50,000 directly from points outside the State. 11. THE LABOR ORGANIZATION INVOLVED The Council , referred to above, and Street Pavers , Sewer, Watermain and Tunnel Workers, Local 440 , herein called Local 440 or the Union, one of Council's con- stituent local unions , are, each of them, labor organizations within the meaning of the Act. III THE UNFAIR LABOR PRACTICES A. The discharge of Michael Cordisco and Herbert Owen This case involves principally Respondent 's alleged discriminatory discharge of five of its employees on various dates in December 1963 These employees at the time of their respective discharges were members of Local 440 , dispatched to their jobs by Local 440, and were engaged on Respondent 's Kennydale tunnel job , one of several projects in sewer installation in or near Seattle. At all times material herein Respond- ent was signatory to a contract negotiated between Associated General Contractors of America (AGC) and the Council and there is no dispute that Local 440 , a member of the Council , was at all such times the bargaining representative of Respondent's employees in an appropriate unit. Two of the dischargees , Michael Cordisco and William O'Brien , were union shop stewards at the time of their respective discharges. Local 440's business agent was Ernest Johansen ; business agent for the Council, which embraces some 15 local unions including Local 440, and the signatory on behalf of the Council to the AGC contract , was Louis W. Hashman. Manager of the Mountain Pacific Chapter of AGC was Melvin R Hord. Officers and supervisors of Respondent referred to in the evidence on the discharges were : Douglas Scheu- mann, contractor's representative; Norris F Reineer, general superintendent; Henry (Hank ) Clark, superintendent of the Kennydale project ; Gene H. Stegriy , foreman; Wilbur R. (Phil) Clark, foreman; Jim Duck , foreman. Cordisco was first employed by the Respondent about September 9, 1963, on a mining operation at the Kennydale tunnel site. After some weeks on this job, Cordisco observed that employees were entering the tunnel to report for work some 'The complaint was based on a charge dated January 15, 19G4, filed by Michael Cordisco , an individual TRAYLOR-PAMCO 385 15 to 20 minutes before actual shift starting time. Considering this a violation of the AGC contract, he brought this to the attention of a Mr McLellan, then Local 440's business agent, and later a conversation concerning the matter occurred between Johansen, McLellan's successor, Foreman Duck, Cordisco, and others. According to Cordisco, Duck inquired concerning the identity of the employees who had called the business agent about the matter, and he, Cordisco, had finally informed Duck that he was the one who had reported the matter He asked Duck what he was going to do about it. Further, according to Cordisco, after reporting to the business agent on the matter, the business agent made hum a shop steward and thereafter he wore his steward's button while at work. Foreman Duck commented on his wearing the button, and, with other employees piesent, told Cordisco that by becoming a steward he was putting himself "behind the eight ball," and "When they decide to get rid of you, that's it." On further examination, Cordisco testified, "Yes, he said when they get tired of using you, he didn't say who they were, he said they would get rid of me " On November 14, Cordisco was laid off along with others, and it is not alleged that this layoff was discriminatory. In laying off Cordisco Respondent did not, however, follow the required procedure of advance notification to the Union of the layoff or discharge of a union steward. Also, it appears that the Union had failed to follow the required procedure in notifying the Respondent that Cordisco had been appointed a job steward. Apparently because of Respondent's faliure to give the required notice, AGC Representative Hord advised Respondent to recall Cordisco whenever work was available and General Superintendent Scheumann agreed to do so. Fore- man Clark, in requesting referrals when more laborers were needed, did not spe- cifically request Cordisco's referral. Nevertheless, Cordisco was returned to Respond- ent's employ on December 2. Also hired on this date was Herbert Owen, another one of the five employees alleged to have been discriminatorily discharged. Both were hired for pouring concrete into prepared forms, and related work, on the Kennydale tunnel operation. On the first day of his reemployment, Cordisco observed that the work crew was eating lunch inside the tunnel and, considering this to be a violation of the AGC con- tract, he reported the matter to Business Agent Johansen that day.2 The next morning Johansen went to the jobsite and, without notice to or consultation with management, instructed the crew not to take their lunches into the tunnel.; On that day the entire crew, some with obvious reluctance, ate their lunches in the "dry shack" near the portal to the tunnel On the following day, General Superintendent Scheumann and Foreman Stegriy were at the jobsite and on observing that the work crew had not entered the tunnel at starting time, Scheumann inquired of Stegriy concerning the delay. Stegriy said it was a question of whether the men would eat their lunches in the tunnel or in the dry shack On Cordisco being pointed out to him as job steward, Scheumann approached Cordisco and was told by the latter that he would not eat his lunch in the tunnel. Scheumann testified credibly that he explained to Cordisco that a conference had been arranged with Johansen and AGC officials to explore the matter and that inasmuch as concrete was being poured that day his chief interest was to get the men to work. The crew then entered the tunnel and all except Cordisco and Owen took their lunches into the tunnel and ate there Cordisco and Owen came out of the tunnel at the lunch break and ate in the dry shack. Except for December 3, when Johansen instructed the crew to eat in the dry shack, all except 2 The section of the AGC contract relied on by Cordisco read. The employer, when necessary, will furnish warm, dry change rooms of ample size, equipped with heat for drying clothing and with benches for use during lunch periods. They will be situated as close as practical to the site of the work and will not be used for storage or material or equipment. 8 Johansen on cross-examination: Q. After Mr. Cordisco reported to you that the men were eating in the tunnel, did you complain to any Company personnel of Traylor-Pamco about that fact? A Yes, I did Q. All right, now, what day' A. After December 5. Q. After December 5? A. Yes. Q. All right , what day after December 5' A. I was over there in person December 9. 206-446-66-vol 154 26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cordisco and Owen ate in the tunnel on days when concrete was poured .4 While Respondent's supervisors testified that neither Cordisco nor Owen were required to eat in the tunnel, or prevented from eating in the dry shack, and Scheumann testified that on December 4 he told Cordisco it made no difference to him whether he ate in the tunnel or in the dry shack, I think there is no question that on days when concrete was poured, it was Respondent's preference and direction that the crew take lunches into the tunnel and eat there. Owen specifically testified that his foreman directed him to take his lunch into the tunnel and he refused to do so. And while the Respond- ent denies that the discharge of Cordisco and Owen resulted from their refusals to eat in the tunnel, the matters are sufficiently interrelated that some exposition on the operation of the Respondent is required. During times material to the discharges under consideration, the Respondent was running a three-shift operation at the Kennydale tunnel The first shift beginning at 8 a.m., on which both Cordisco and Owen were engaged, was engaged chiefly in pouring concrete. The swing shift was chiefly a cleanup operation and preparation for the next pour The third or graveyard shift completed the preparation for the next pour, moving the form into its new position, fitting the top panels back in and con- necting up the concrete line so that the next pour could begin on the 8 a.m. shift. Thus, the work of the second and third shifts was correlated in a manner to prepare for the next pour and any delay on any one shift would delay the entire operation Some 12 employees were employed on each shift. The Kennydale tunnel is about 2,600 feet in depth, with a portal at one end. According to Scheumann's credited testimony, the usual concrete pour of a hundred feet required an average of about 5 hours and usually ran past the noon hour. Once started the pour could not be inter- rupted, and for that reason most of the men engaged in this operation apparently preferred to take their lunches into the tunnel rather than to postpone eating to the end of the pour, which would be required if they ate their lunches in the dry shack. When the pour extended beyond the lunch hour, as it usually did, time-and-a-half pay was allowed for this period, in accordance with a provision of the AGC agree- ment Owen, who refused to eat in the tunnel, testified that some 15 to 20 minutes was required each way to the dry shack and back which was additional to the 30 minutes allowed for actually eating lunch. The dry shack admittedly was modern, had shower stalls, benches, toilet accommodations, etc. In contrast there were prac- tically no accommodations for eating in the tunnel To return to the discharges, on December 10 again, of the entire crew, only Cordisco and Owen had their lunch in the dry shack. Shortly after finishing his lunch and returning to work in the tunnel, Cordisco, according to his undisputed testimony, was told by Foreman Stegriy, "You are going to find out who is running this job, us or the union. A few minutes later, Stegriy was summoned to the phone and, after answering it, told Cordisco that Superintendent Clark wanted to see him outside. After giving Cordisco a temporary assignment, Clark told him he was being laid off and gave him his check. Cordisco asked Clark why he was being laid off and Clark said, "You are not happy here." Owen's discharge followed on the same day He did not ask the reason for his discharge and was given none. Stegriy, who recommended the discharge of Owen and Cordisco to his superior, Clark, testified that Owen, because of his age and infirm physique, was slow and unable to keep up with the work that was assigned to him. Owen did his work "as good as he could do it, which was very slow," Stegriy testified. "He did try to do it. He was in the way, he was slow, he moved slow." Concerning Cordisco, Stegriy testified that he also was slow, "every chance he got he would like to talk and that is why he didn't pull enough." Stegriy explained that "pulling studs you have to keep up or your concrete is going to set up and you leave a big hole in there, then you have to finish or come back, and if you keep pulling them fast enough, you won't have that, you have good-looking concrete." Questioned whether the fact that Owen and Cordisco ate their lunch in the dry shack instead of in the tunnel along with the rest of the men affected their work, Stegriy testified, "It would take them an hour to go out and come back in and the other men would be working a half-hour more than they would ... it slowed the job down." Except for Stegriy's statement to Cordisco shortly before the latter's discharge I would have little hesitancy in finding that the discharge of Cordisco and Owen was for cause During the first period of his employment Cordisco doubtless caused the Respondent some discomfiture by reporting that the men were entering the tunnel on their way back to work a few minutes before starting time. Also, something 4Cordisco testified: "There was just one day where the whole crew went out to eat but all the other days I was there the only one was me and Owen went out to eat our lunch in the dry shack." TRAYLOR-PAMCO 387 might be made of Foreman Duck's comment that in becoming a job steward Cordisco was "putting himself behind the eight ball," and that when "they " got tired of using him "they" would get rid of him. Cordisco 's testimony on this incident , though undisputed, was so confused and inconclusive as to leave in doubt just what Duck meant by his statement and there is no sound basis for inferring that he necessarily meant that Cordisco was putting himself behind the "eight ball ' with management, or that "they" referred to management . In any event Cordisco was kept on until that part of the tunneling operation was finished, was laid off with others of the crew, and Duck was no longer his foreman . Nor am I able to read any great significance into Respondent's failure to give the Union advance notification of Cordisco 's layoff. The Union had not given it official notification of Cordisco's appointment and except for Duck's observation of his shop steward button there was nothing official at that time to identify him as a shop steward. Respondent's failure, when work was resumed, to ask specifically that Cordisco be referred does not appear to have been required since Respondent , on advice of AGC Manager Hord, had already agreed to his recall , and the Union was aware of this. The General Counsel argues that Respondent 's defense to the December 10 dis- charges should have been more specific as to cause if cause and not pretext was the reason for the discharges . It appears to me, however , that Stegriy and Clark in testifying that they personally observed Cordisco and Owen at work and that both were slow, Owen because of infirmity, Cordisco because of inattention , thereby hold- ing back the work of others , was about as specific as it could be under the circum- stances. As previously observed, the three shifts were coordinated in a way that any delay in any part of the operation would be reflected in the entire operation, and there is no reason to doubt Scheumann 's testimony that the work was not proceeding satisfactorily .5 The testimony of Respondent's witnesses as to Owen was borne out, not by his age but by his physical appearance which was that of a man frail in physique, nervous, and with a very low boiling point. Stegriy 's testimony that Owen did his work "as good as he could do it," and "he did try to do it," did not impress me as the testimony of one biased in his appraisal of Owen's work . Owen admitted that on an occasion Stegriy told him "something about I should quit work or find some easier or different work." The testimony that Cordisco moved slow, thereby not taking on his full workload, partially because of talking on the job, also did not impress me as being too farfetched for credence. Cordisco is not, of course , to be censured or prejudiced by his alertness both before and after he became a job steward in reporting to Johansen on what he considered to be contract violations, but his designation as steward did not privilege him to shirk in the performance of the work assigned to him, make a unilateral determina- tion that the labor contract was not being followed and act in violation of managerial instructions on the basis of such a determination ,e or generally to refuse to follow the instructions of his supervisors . The extent to which his refusal, and Owen's refusal , to eat their lunches in the tunnel on days that concrete was being poured, entered into Respondent's appraisal of their overall satisfactoriness as employees, cannot be gauged with any degree of certainty . Each lost at least 30 minutes of IIn addition to Scheumann 's testimony there is the testimony of AGC Manager Hord that Scheumann reported to him that they were "Having quite a problem with time loss on the job ; that they were getting about six hours a day work out of the men for eight hours pay," and "asked if there were some way we could alleviate this problem." Scheumann asked Hord to get a meeting set up with union officials, and such a meeting, to be referred to in detail later , was set up and had on December 5. O That portion of the contract relied on , quoted in footnote 2, supra, besides qualify- ing language-"if necessary"-did not necessarily apply to the situation that existed in the tunnel on days that concrete was being poured , and throughout the period that Cordisco and Owen were refusing to eat in the tunnel the Respondent was attempting to work out an agreement with their bargaining representative which would afford a solu- tion to this particular problem. In my opinion these factors distinguish this case from Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros. Construction Com- pany, 139 NLRB 1516 , relied on by the General Counsel. If , as the Board reasoned in that case, an employee 's insistence on rights granted him under a collective -bargaining agreement is an extension of concerted activities in getting the agreement and for that reason protected, It must follow that the right asserted by the employee is clearly em- bodied in the agreement. Otherwise, normal managerial disciplines could be thwarted, with impunity , anytime any employee working under a bargaining agreement decided unilaterally that he was denied rights guaranteed him under the agreement whether or not the agreement , properly construed, clearly gave him such rights. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working time engaged in by their fellow employees by their respective refusals. I am doubtful that the said refusals can properly be characterized as either concerted or protected . There is not even the proverbial iota of evidence that there was any con- sultation between the two in the matter, that either relied in any measure on the other in making his refusal , or that their association in refusing to eat in the tunnel was anything but accidental The crew as a whole obviously preferred to eat in the tunnel on days that concrete was poured, and except on the one day when specifi- cally told by Johansen not to, did so. But assuming that all you need to establish "concert" is that 2 out of some 12 individuals act in protest over the same thing at about the same time, we still do not have a situation here such as existed in N.L R.B. v. Washington Aluminum Company, Inc, 370 U.S. 9, and kindred cases. Owen's description of the lack of sanitation in the tunnel was graphic but a little too "hopped up" for complete credence . T Granting there was lack of complete comfort and sani- tation , this could hardly be expected in an operation of this sort where mud and seepage from the concrete would unavoidably occur, and it is unbelievable that had the situation been as foul as Owen portrayed it that all the employees except Owen and Cordisco , including Foreman Stegriy, apparently preferred eating there to the inconveniences of waiting to the end of the pour to have their lunches in the dry shack. Furthermore, Cordisco knew that the Respondent was attempting to work out a satisfactory solution to this particular problem through bargaining between the AGC and the employees ' union representatives , but nevertheless persisted in his refusal to comply with managerial directives in the matter . For these several reasons, though the Respondent has defended on other grounds , I would find that even if the refusals of Cordisco and Owen to eat in the tunnel contributed to their general unsatisfactoriness as employees and therefore constituted at least one element in the discharge decision, the said discharges were not discriminatory but for cause. Stegriy's statement to Cordisco shortly before the latter 's discharge , subject to several interpretations as it is, does not rise to a degree of evidentiary importance sufficient to cause me to reverse conclusions I have reached on the basis of overall factors canvassed above. B. The Brown, Moceri, and O'Brien discharges The discharges of William Brown , Sam Moceri , and William O'Brien, occurring on December 17, also involved to some degree the matter of employees eating their lunches inside the tunnel and therefore requires further reference to the matter. As indicated in Foreman Stegriy's statement to Cordisco , referred to above, relating to Respondent's efforts to reach some agreement with the Union resolving the problem of lunches in the tunnel , a meeting attended by Johansen , Hashman, Hord, and offi- cers of the Respondent was held on December 5, and at this meeting a tentative agreement was reached, an agreement which was put into writing and executed by all parties on December 18.8 The agreement , insofar as it is material and applicable here , provides: The men working in the tunnels would eat their lunch in the tunnel after they were working 1000 feet or more from the portal provided the Company would furnish a warm , dry place within the tunnel , equipped with benches or chairs, lights and, if necessary, heat and a place for the men to wash their hands. Also no muck cars are to be run through eating area while crew is at bench. Where these facilities are not provided , the men would be allowed time to go out to the change shack to eat. The men who are working less than 1000 feet from the portal would be allowed to go to the change shack for lunch . The only excep- tion to this would be where the men were required to work through the lunch hour and were paid according to the Agreement for this time. The men then would be expected to eat at their place of work. 7 Owen described the tunnel as highly unsanitary , without toilet facilities , reeking with urine-"men walking through it and scattering it all over every thing"-and generally filthy. It is noted, however, that the agreement ultimately reached by Respondent and the Union for providing facilities in the tunnel for eating, made no provision for the installation of toilet facilities Such facilities were provided at the portal to the tunnel and there is no evidence that any employee was denied permission for leaving the tunnel as the need arose B Johansen denied that there was an agreement reached at the December 5 meeting He testified that he was opposed to employees eating in the tunnel under any circum- stances . Council Business Agent Hashman , AGC Manager Hord, and officers of the Re- spondent testified that an oral agreement was reached on that date and they are credited The written agreement of December 18, to which Johansen was one of the signatories, specifically states that it is the verbal agreement of December 5, put into writing TRAYLOR-PAMCO 389 It is noted that this agreement is not restricted to days when concrete is being poured or to shifts on which this operation is accomplished. Obviously, Respondent considered it to its advantage to have the employees eat in the tunnel at all times they are at work there, though its earlier insistence, in the situation involving Cordisco and Owen, on eating in the tunnel had particular reference to the concrete pouring operation Coming now to the second group of discharges. O'Brien was hired on December 9, William Brown and Sam Moceri the following day. All were hired on the second or swing shift. Foreman on this shift was Wilbur (Phil) Clark. The main functions of the swing shift were stripping forms, moving pipe, timber, railroad tracks, etc., preparatory to the next pour, and cleaning up what is normally something like a foot of mud and concrete spillage. On December 9 and 10 the employees apparently ate in the dry shack, but on December 11, Foreman Clark instructed them to take their lunches into the tunnel. O'Brien protested that such a practice was "unheard of." He testified, "I questioned the legality of his move because we have never under any circumstances eaten underground." Moceri also protested Clark's instructions and spoke of seeing the Union's business agent next day. Clark replied that it was accord- ing to arrangements made with the Union, whereupon O'Brien said that the "main thing was to maintain harmony" and the men would comply with instructions to eat in the tunnel until he, O'Brien, saw Johansen, the business agent. O'Brien testified that there were no accommodations for eating in the tunnel, no benches for the men to sit on, no sanitary facilities, no running water for cleanup purposes On December 12, O'Brien saw Johansen and got a letter from him appointing O'Brien shop steward and directing that lunches be eaten in the dry shack. On reporting to work, O'Brien showed this letter to his foreman, Hank Clark, and Scheumann. On reading the let- ter, Scheumann remarked, "Well, I thought this thing had been all settled," but did not protest the action of the employees in complying with Johansen's instructions. According to O'Brien, the employees were assured that facilities for eating would be provided for in the tunnel. "He [Phil Clark] said during the weekend the company was going to straighten out the conditions in the tunnel and provide proper facilities so that Monday we could bring our lunches in." On the following Monday, when the men reported for work, Clark told them that Johansen had approved the facilities for eating in the tunnel. O'Brien said, "Well, if it has been approved, we will take them in." Accordingly, all the employees took their lunches into the tunnel. O'Brien testified that the facilities for eating were inadequate, not enough benches for all the men to sit while eating, no heat, no toilet facilities, etc He, Brown, and Moceri sat together while eating and nearby, having his lunch, was Foreman Clark. The three employees, while eating. complained among themselves about the inadequacy of the accommodations provided by the Company. On the following day, O'Brien talked to Johansen and Johansen told him "The com- pany has promised faithfully that they will rectify any bad features," and O'Brien was to disregard the letter Johansen had previously given him instructing the men not to eat in the tunnel. Acting on this advice, O'Brien and the other employees there- after took their lunches into the tunnel. They testified that after their having pro- tested eating conditions in the tunnel, Foreman Clark's attitude toward them changed from friendly to unfriendly. O'Brien testified that on reporting for work in the tunnel on December 17, he found that there was a congestion of smoke in the tunnel sufficient to make eyes smart and to cause coughing. Moceri and Brown testified to the same effect. The smoke fumes appear to have been caused by a welding operation Brown told Foreman Clark to get rid of the fumes or he "would call the state safety division." According to him, Clark said, in reply, "never mind the smoke, just grab ahold of the timber and run," or words to that effect. O'Brien, Brown, and Moceri refused to work in the smoke and so informed Clark. He put them to work elsewhere. There is no evidence that employees other than O'Brien, Moceri, and Brown protested the smoke condition or pany has promised faithfully that they will rectify any bad features," and O'Brien the smoke fumes cleared up and after that he, Moceri, and Brown resumed working wherever directed. All employees had their lunches in the tunnel although, accord- ing to O'Brien, adequate facilities had still not been provided. At the end of the shift, Clark handed O'Brien his check and informed him that he was discharged. To O'Brien's inquiry as to the cause, Clark said, "You are not qualified " O'Brien replied, "The only one on this job not qualified is you." Brown and Moceri were discharged at the same time The Respondent claims that it gave Johansen advance notice, by telephone, of O'Brien's discharge, but Johansen denied receiving such a call. I found Johansen unreliable as to dates and incidents and find that such a call was made. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's defense to the discharges is that the three employees were slow work- ers, negligent in the performance of their duties, and no matter where assigned to work in the tunnel always contrived to get together and in being together, presum- ably, compounded the slackness of their individual work performances. It is by no means clear to me from Foreman Clark's testimony just how the three, regardless of individual work assignments, managed always to get together during their working time, contrary to his directions, but otherwise their association is clear They jointly protested being required to eat in the tunnel; through them their protest was carried to the Union and as a result O'Brien was appointed steward and the men were instructed by Johansen's letter not to eat in the tunnel. Upon installation of certain facilities for eating, these instructions were withdrawn, but the three, in Clark's presence, were critical of the facilities afforded by the Respondent. I think there can be no doubt therefore that not only were they regarded by the Respondent as associ- ated in their work habits but also in their protests over lack of facilities for eating in the tunnel. This was a matter of considerable concern to the Respondent and a mat- ter that was under discussion for weeks between company and union representatives, and I have no doubt that the Respondent was sensitive to criticism in this area. Somewhat the same situation existed with respect to the previous discharge of Cordisco and Owen, both of whom, also, had protested eating in the tunnel under the existing circumstances. There are significant differences, however, in the two situa- tions. (1) Here the protected concerted nature of the protests is clear. The Respond- ent, at the time the protests were made, had not lived up to its oral agreement with the Union of December 5, which called for it to supply seating and other facilities for eating in the tunnel. Foreman Clark's testimony that benches had been provided is not credited. O'Brien, in making the protests, and Moceri and Brown in joining with him, were therefore engaged in legitimate concerted and union activities. (2) Here there was no refusal, individually or collectively, of the three dischargees to comply with instructions of their supervisors with respect to eating in the tunnel, nothing in their conduct constituting or bordering on insubordination or disrespect. Whenever the rest of the crew on their shift ate in the tunnel they followed suit. (3) There was no time differential between them and the rest of the crew with respect to actual time spent on the job, as was the case with Owen and Cordisco, and there- fore any complaint with respect to their lack of production could not be traced to such a time differential. (4) Finally, though as in the case of Cardisco and Owen their foreman would be hard put to it in the short time they were employed to be specific as to actual time and deed in describing their slowness as employees, I found here no objective factors, such as existed in the case of Owen, and to a lesser degree, Cordisco, which tended to substantiate Respondent's claim that they slowed down the work of their crew, and the testimony of Foreman Clark on their work habits was not convincing.9 In short, on the basis of the entire evidence, I find that the preponderance of the credible testimony supports the General Counsel's allegations with respect to the discharge of O'Brien, Brown, and Moceri, but falls short of a preponderance in the case of Owen and Cordisco. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent discharged William O'Brien, William Brown, and Sam Moceri because of their union and concerted activities, I shall recommend that the Respondent 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 pay suffered because of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have been paid in Respondent's employ from the date of the discharge to the date of Respondent's offer of reinstatement, less their net 9 No reference has been made to the refusal of the three on the date of their discharge to work in a smoke congested area for the reason that Respondent contends that the dis- charge decision preceded that incident, and the Incident therefore had no bearing on it. TRAYLOR-PAMCO 391 earnings, if any, during said period , provided Respondent's project with the muni- cipality of Metropolitan Seattle on which it was engaged at the time the discharges occurred is in operation . If work on the project has been terminated , it will be recommended that the backpay order, as stated above, run from the date of the dis- criminatory discharge to the date on which the dischargees ' work on the project would have been terminated, absent discrimination , and that in lieu of an offer of reinstatement, as specified above, the Respondent send written notices to each of the discriminatees advising them that it will consider them for employment at any of the Respondent's projects on a nondiscriminatory basis. Alabama Roofing & Metal Co., Inc., 142 NLRB 882. Loss of pay under the backpay order recommended above shall be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Local 440 and the Council are, each of them, labor organizations within the meaning of Section 2 ( 5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of its employees , William O'Brien, William Brown, and Sam Moceri , thereby discouraging membership in Local 440, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a)(3) of the Act. 3. By the said discriminatory discharges , the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and ( 7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent , Traylor-Pamco, its officers , agents, successors, and assigns, shall 1. Cease and desist from: (a) Discouraging membership in Local 440 or any other labor organization of its employees , by discharging its employees or by discriminating in any other manner in regard to their hire or tenure of employment , or any term or condition of employment. (b) In any like or related manner interfering with, restraining , or coercing its employees in the right to self-organization , to form labor organizations , to join or assist Local 440, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer William O'Brien , William Brown , and Sam Moceri immediate and full reinstatement to their former or equivalent positions if work is continuing on the project on which they were employed at the time of their discriminatory discharge, or, in the alternative, if work on the project has been discontinued , send them written notices forthwith advising them that it will consider them for employment at any of Respondent's construction projects on a nondiscriminatory basis , and make them whole for any loss of pay they may have suffered as a result of the discrimination against them , in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify William O'Brien, William Brown, and Sam Moceri if presently serving in the Armed Forces of the United States of their rights of reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , provided the project on which they were employed at the time of their discriminatory discharge has not been completed. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its operations in or near Seattle , Washington, copies of the attached notice marked "Appendix." 10 Copies of said notice , to be furnished by the Regional Director for Region 19, shall, after being duly signed by the Respondent 's authorized representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing , within 20 days from the date of the receipt of this Decision , what steps it has taken to comply herewith 11 "In the event that this Recommended Order be adopted by the Boaid , the words "a Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order". ii 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 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Street Pavers, Sewer , Watermain and Tunnel Workers , Local 440, or any other labor organization , by discharg- ing any of our employees because of their concerted or union activities or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named Union, or any other laboi organization , to bargain collectively through representatives of their own choosing , or to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL offer immediate and full reinstatement to William O 'Brien, William Brown, and Sam Moceri , provided work on the project on which they were employed at the time of their discharge has not been completed, or, in the alternate if work on said project has been completed , will forthwith notify them in writing that their application for employment on any of our projects will be considered on a nondiscriminatory basis, and will make them whole for any loss of pay they may have suffered because of the discrimination against them WE WILL notify William O 'Brien, William Brown, and Sam Moceri if pres- ently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces, provided work on the project on which they were employed at the time of their discharge has not been completed All of our employees are free to become or remain , or refrain from becoming or remaining, members of the above-named or any other labor organization We will not discriminate in regard to hire or tenure of employment , or any term or condition of employment, against any employee because of membership in or activity on behalf of any labor organization. TRAYLOR-PAMCO. Employer. Dated----------------- -- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board 's Reeional Office , 327 Logan Building, Seattle , Washington , Telephone 682-4553, if they have any questions con- cerning this notice or compliance with its provisions