Enterprise Electric Works

246 DECISIONS OF NATIONAL Enterprise Electric Works and Clare Mudge, Jr. Case 19-CA-4191-2 June 10, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN , AND JENKINS On February 12, 1970, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S . SAHM , Trial Examiner: Upon a charge filed November 12, 1968, by Clare Mudge, Jr., an individual, the complaint herein issued on July 31, 1969, alleging that Enterprise Electric Works, herein referred to as the Respondent, violated Sec- tion 8(a)(1) of the National Labor Relations Act, ' In agreeing with the Trial Examiner 's finding that the complaint should be dismissed, we rely solely on the Trial Examiner's finding that the evidence fails to establish that Respondent in fact canceled employee 183 NLRB No. 30 LABOR RELATIONS BOARD as amended, herein called the Act. The complaint alleges that Respondent refused to rehire Clare Mudge, Jr., because of Mudge's union activities and by this act the Respondent has interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed by Section 7 of the Act. Respondent denies that it refused to rehire Mudge, or that his inability to be hired was due to the union activities described in the complaint, and urges as affirmative defenses that Mudge's con- certed activities were unprotected and that it did not condone those activities, that it had no knowledge of Mudge's desire to be rehired, and that Mudge had engaged in a physical altercation with a fellow employee immediately prior to the termination of his last employment with the Respondent. The parties appeared at a hearing held in Anchorage, Alaska, on October 1 and 2, 1969, and were afforded the opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Briefs were filed by the parties and have been carefully considered. Upon the entire record, observation of the wit- nesses and their demeanor while testifying, and upon consideration of the briefs, there are made the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT Respondent has been at all times material herein a California corporation engaged in electrical con- tracting work at jobsites in California, Alaska, and other States of the United States. In the course and conduct of its business, Respondent annually per- forms services valued in excess of $50,000 for customers directly engaged in interstate commerce, and annually purchases and causes to be trans- ported to various jobsites goods and materials valued in excess of $50,000 directly from States of the United States other than the State in which the jobsites are located. The complaint alleges, the answer admits, and it is found that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The complaint alleges , the answer admits, and it is found that the labor organization involved is the International Brotherhood of Electrical Workers, Local 1547, AFL-CIO, herein referred to as the Union or IBEW, Local 1547, which has been at all material times herein a labor organization within the meaning of Section 2(5) of the Act. Mudge's dispatch Thus, in affirming the Trial Examiner, we do so only because the evidence is insufficient to establish that Respondent denied employment to Mudge or otherwise discriminated against him ENTERPRISE ELECTRIC WORKS 247 III. ALLEGED UNFAIR LABOR PRACTICES A. Background and Setting Mudge was first employed by Respondent in 1966 and worked intermittently on oil drilling jobsites during 1966 and 1967 before the tour of employment from July through October 1968, the period out of which the issues in this litigation arise. Mudge was employed by Respondent on prior oc- casions (as he was from July to October 1968), as a journeyman electrician and "inside wire man." From the record it appears that Mudge's employ- ment by Respondent was at all times in connection with the installation of electric wiring during con- struction of or to maintain offshore oil drilling rigs. On the occasions of Mudge's previous employment by Respondent, the electricians, including Mudge, were housed on the drilling platforms under con- struction in a manner similar to the manner in which they were housed during the period here in question or at quarters supplied by Respondent "on shore." During one tour of employment in 1966 Mudge and another of Respondent's electricians engaged in a fight after they had completed their day's work and had returned to the onshore living quarters supplied by Respondent. The fight had its incipient stage aboard the oil drilling platform during work- ing hours, but was postponed until later as one of Respondent's job superintendents intervened on the platform with a threat of dismissal. No disciplinary action was taken against Mudge at the time of this altercation which began on the platform and the ensuing fight onshore which occurred on the par- ticipants' own time. Mudge was hired subsequently by Respondent for jobs through 1967 and 1968. The tour of duty here in question spanned the period from July 1968 to approximately October 25, 1968.1 In July Mudge was employed at Re- spondent's onshore facility at Trading Bay, Alaska. Mudge, along with several other electri- cians who were working at Trading Bay, transferred from that installation on September 15 to Re- spondent's operation aboard an offshore drilling platform which was being constructed in Cook In- let, near Anchorage, Alaska, for Phillips Petroleum Company by J. Ray McDermott & Co., Inc., the prime contractor. Respondent, Enterprise Electric Works, was the electrical subcontractor of J. Ray McDermott & Co., Inc., the prime contractor to Phillips Petroleum Company for the construction of the drilling platform. A third contractor, Moran Brothers, was also working on the platform in- stalling drilling apparatus under direct contract to Phillips Petroleum, the owner of the drilling plat- form. Moran Brothers had no contractual relations with either J. Ray McDermott & Co., Inc., or Respondent, Enterprise Electric Works. ' All dates are 1968 unless otherwise indicated Respondent was party to a collective-bargaining contract with IBEW, Local 1547, the Union herein, covering the electricians in its employ. The con- tract provided, among other things, that: 1. There would be no work stoppages whether by strike or lockout, because of disputes over matters relating to the agree- ment. 2. Where the employer furnished living quarters "There shall be no more than four (4) men housed in a tent or room, and each man shall be allowed approximately 60 square feet of floor area .... Only men under the terms of this Agreement shall be housed together in rooms or tents...." Respondent admits that the housing terms of the contract were not met as quarters were a good deal more cramped than specified in the contract. How- ever, it is uncontradicted in the record that the Union knew that these conditions could not be met on the Phillips' drilling platform and had "waived" that contract provision as it had done in the past in connection with facilities at other offshore drilling platforms. The Phillips' oil drilling platform is a four-tiered structure which rests on steel legs driven into the floor of Cook Inlet, located 30 to 35 miles out to sea from Anchorage, Alaska. The four levels of the platform are occupied exclusively by equipment used to operate and maintain the drilling. "Per- manent " living quarters are located on decks ex- tended from the top tier of the platform and at- tached to the four-tiered structure by means of braces or girders. In addition to the "permanent" quarters on these decks, additional living facilities were provided aboard an oceangoing barge tied alongside the oil drilling platform. During Sep- tember and October Respondent's electricians lived aboard trailers placed on the barge deck and in the permanent facilities aboard the drilling platform. The isolation of the platform and housing barge was broken only by the twice daily, 3-hour commute of a "crew boat" to and from Anchorage. The electri- cians , including Mudge, worked at their trade aboard the Phillips' platform 12 hours per day, 7 days a week. B. First Walkoff In mid-September when Mudge first was em- ployed aboard the Phillips' platform, Moran Brothers, which was under direct contract to Phil- lips, was installing drilling equipment on the top deck of the platform. This job called for a good deal of work ordinarily performed by electricians. Moran Brothers was not, at that time, licensed to engage in electrical contracting in Alaska and was apparently violating Alaskan state law by so doing. In addition, Moran Brothers' electrical work was being done, at least in part, by Moran's 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "roughnecks"2 and not be union electricians. The record is obscure as to who, among Respondent's employees, first discovered that Moran's employees (who were under contract to Phillips to install drilling apparatus), were doing electrical work. It is clear, however, that at approximately 3:30 p.m., on September 19, Fred Watwood, the Electricians union steward, approached the management of Respondent, aboard the platform, and warned of trouble with his electricians if Moran Brothers con- tinued to do electrical work with nonunion person- nel. Hubert (Hub) Laurin, the job superintendent for Respondent at that time, and a member of Local 6, IBEW, San Francisco, testified that im- mediately upon being informed by Watwood that rumors were spreading among the crew that Moran Brothers was using nonunion men, he went to Irwin Manning, project engineer for J. Ray McDermott & Co., Inc., the prime contractor, and warned him that unless the nonunion people got off the plat- form or unless union people were brought in to do the work in question, Respondent's crew would "probably" walk off the job. According to Laurin, Respondent's superintendent, Manning told him there was nothing he could do as J. Ray Mc- Dermott & Co., Inc., had no contract with Moran Bothers and that only Phillips Petroleum, the owner of the platform, had "authority to tell Moran what to do."3 Laurin then went to Phillips and was in- formed by its representative that Phillips would not dictate to Moran Brothers the method by which Moran fulfilled its contract. Finally, at approxi- mately 5 p.m., that same afternoon, Laurin went to Moran, told its representatives what he had related to McDermott and Phillips, and offered to do the electrical work which Moran was doing in order to avoid labor troubles. Laurin and another superin- tendent of Respondent, James Young, whose father is the owner of Respondent Enterprise, testified that they had talked with Moran Brothers on prior occasions about the possibility of Respondent's contracting to do the electrical work here in question. Respondent stood to profit by $20,000 if this work had been awarded to it, Moran had refused to award them a contract because Moran claimed that the price of the drilling equipment, which they paid the manufacturer, included instal- lation of the equipment by the manufacturer, and to hire Respondent to do the wiring would be to pay for its installation twice. Laurin's offer was re- jected and he was invited by Moran's officials to "jump in the lake." Immediately after his discussion with Moran Brothers, Laurin met again with Watwood, the Union's job steward, and reported his frustratingly S "A casual term for an oil driller or other person who assists in oil drilling work " Labor Dictionary, Casselman, Philosophical Library, p 404 a McDermott, the prime contractor, had awarded the electrical subcon- tract to Respondent ' Launn 's version that the use of nonunion electricians was the sole cause of the walkoff is credited It would appear from the contract that futile and unsuccessful efforts to prevail upon Moran Brothers not to use nonunion "roughneck" labor to install electrical equipment. As Laurin was truly on the horns of a dilemma, he asked Watwood if he would gather all of Respondent's electricians for a meeting with Laurin on a subdeck of the plat- form. At this meeting with Laurin, the electricians de- cided that they would walk off the job in protest against Moran's use of nonunion personnel. Mudge testified at the hearing the reason for the walkoff was not so much that the men doing electrical work were nonunion, but by viture of their being non- union they were unqualified to do electrical work and posed a safety threat. Laurin, on the other hand, testified that there was no mention of safety at this meeting or in any other conversations he had with Mudge and other union members that safety was the reason for the walkout." Laurin also testified he told the men that if they walked off the job they would be engaging in a wildcat strike in violation of the contract.' He also reminded them that Enterprise, who had no control over Moran Brothers, would be the innocent sufferer. The opinion that the strike was not sanctioned by the contract was shared by at least one union official named Niemi, the dispatcher at the union hiring hall, who in a radiophone conversation with Laurin and Watwood immediately after the employees' meeting and walkoff, said that the strike was illegal and while he could not excuse the walkoff "if the guys want to go fishing, I can't hold them back." The result of the meeting was a unanimous deci- sion of the 25-man crew to leave the platform and to return to Anchorage to force the issue of Moran's activities to a head. Only Watwood, the union steward, at the request of Laurin, remained on the platform in the event of an emergency. The full crew, Laurin, and two of Respondent's foremen left the platform at approximately 9 p.m., Sep- tember 19 and arrived in Anchorage early the next morning. Prior to his leaving the platform, Laurin, Respondent's supervisor, put in a call to the Union requesting 25 electrician replacements for the crew which had walked off the job. Immediately following the walkoff, Mudge, Lau- rin, and Bob Johnston, a foreman for Respondent, left the platform and checked in at the Captain Cook Hotel in Anchorage where they shared the same room on September 20 and 21. During this period Mudge made phone calls to the news media and Jess Harris, a member of the Alaska Legisla- ture and Local 1547, to explain the situation on the platform, to publicize the walkoff, and to request that some action be taken against Moran Brothers. were the men protesting safety conditions the walkoff may not have been in violation of the contract and hence "protected " activity See Washington Aluminum Co Inc , 370 U S 9 It is believed this safety factor was an af- terthought of Mudge's to justify what was really a dispute bottomed on the use of nonunion labor and it is so found 5 See section III, A, supra ENTERPRISE ELECTRIC WORKS 249 During this period of time that the men were off the job, Laurin met with Union Business Manager Tom Hackett and it was agreed that all of those who participated in the walkoff would be rehired. Laurin, on a number of occasions in his testimony, stressed his reluctance to discharge men, even when a situation appeared to warrant firing them because of a critical scarcity of electricians in Alaska at that time. The dearth of electricians in Alaska stands uncontroverted in the record. On September 21 a group of 10 electricians, including Mudge, returned to the platform ready to go back to work. C. Mudge's Fight and Second Walkoff On September 21, when Mudge and nine other electricians returned to the Phillips' platform from their walkoff, Mudge discovered that Moran Brothers' employees were still engaging in electrical work with nonunion personnel. According to Mudge's testimony, which is substantially in accord with Laurin's, he then went to the radio shack. There in the presence of Laurin and Jim Butcher, a supervisor for J. Ray McDermott & Co., Inc., he made a radiophone call again to Alaska Legislator Jess Harris to explain that Moran was continuing to do the electrical work which precipitated the Sep- tember 19 walkout, and that some of the men would not work and were returning to Anchorage. After Harris was so notified, Mudge walked off the job, collected his gear , placed it aboard the crew boat, and was waiting in the boat to return to Anchorage when he was accosted by A. C. Forbes, a union member and one of two electricians,' who along with Respondent's supervisory personnel had decided not to walk off the job again but to remain on the platform and work. According to Mudge's testimony Forbes stood on the barge and "yelled things" at Mudge who was in the crewboat prepar- ing to return to Anchorage. The subject matter of the "things" appears from the record to have in- volved a "personal" matter regarding Forbes' claim that Mudge owed him some money. Again, accord- ing to Mudge's testimony, Mudge climbed out of the boat onto the barge and threatened to "clobber him one" if Forbes didn't "shut his mouth." Mudge testified that Forbes "picked up a chain to strike me with the chain, and I hit him." A bystander then separated the combatants. Laurin, who during this time was still in the radio shack, hurried to the scene upon witnessing the fisticuffs through the radio shack window. He fired Forbes and ordered Mudge into the crewboat which departed for Anchorage. Almost immediate- ly thereafter, Laurin reinstated Forbes because, ac- cording to Laurin, "it seemed kind of ridiculous" to fire Forbes when there was no one whom he could hire to replace him due to an acute lack of electri- cians in Anchorage.' D. The October 3rd Work Stoppage On September 27, 6 days after the second walk- off, Mudge was redispatched by the Union to Respondent's job aboard the platform and was ac- cepted for employment by Laurin, Respondent's job superintendent.' On approximately October 2, Laurin was replaced as superintendent by James Young, Jr., who had returned from a business trip to San Francisco. Young testified that upon his return from San Francisco Laurin had apprised him of the activities aboard the platform, including Lau- rin's meeting with the employees eventuating in their walkoff, and he showed Young clippings which appeared in the local newspapers about those activities. He was also informed by Laurin that Mudge had had a fist fight with Forbes. Upon their return to work on or about Sep- tember 27, Respondent's electricians noticed that Moran Brothers were continuing to perform the work that caused the September 19 work stoppage. Respondent's employees held several meetings with Young to complain about the continuing Moran situation. At some time prior to October 3, Moran Brothers, due in part to Young's representations, agreed to enter into a contract with Aurora Electric Company, a union contractor, licensed to do elec- trical work in Alaska. On October 3, when Aurora's electricians arrived at the platform, they learned that they were to do only a portion of the disputed electrical work whereupon Aurora's union electri- cians refused to go to work. When Respondent's employees observed Aurora's electricians were leaving the platform, they also stopped work. Young then called a meeting of his electricians to ascertain the reason for the work stoppage and learned from them that they were dissatisfied with the failure to resolve the Moran Brothers' situation. They threatened to go again to the Union and to the news media. Young went from this meeting to a meeting he arranged with officials of Moran Brothers, McDermott Company, and Phillips Petroleum, at which meeting Moran promised to obtain another union contractor to perform the work in question. However, when Young suggested that Moran award the contract to his Company, Young testified that "the head man for Moran Brothers told me that they would get a union con- tractor, but it would not be us, because he was not going to see any of our men doing this work that started all this walk-out trouble." It was only after Young reported to his disgruntled electricians that the problem had been solved at this employers' meeting that they agreed to resume work. This work stoppage of October 3 lasted approximately 3 'See fn 8 ' Corroborative of this lack of electricians is Respondent notifying the Union on September 19 to dispatch electricians but it was not until Sep- tember 28 that the Union was able to muster a full crew 9 The record shows that of the 25 men working for Respondent on the platform on September 28, all but 8 had participated in the walkoff 250 hours. DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Locking of the Radio Shack The next day, October 4, Mudge went to the radio shack , and in the immediate presence of the McDermott barge captain and Manning, Mc- Dermott's project engineer, he telephoned Harris, the Alaska legislator , and reported that the "Moran problem " had reoccurred .9 Shortly after this radiophone conversation the door to the radio shack was padlocked by the McDermott barge cap- tain . When Mudge complained to Young, the latter spoke to the captain of McDermott 's barge who told Young the radio shack was locked because Mudge was using the phone too much. Young finally prevailed upon McDermott to remove the padlock from the radio shack upon Young's as- surance that the radiophone would not be used un- reasonably. F. Bunk Space Incident Some time in October , after the incidents described above , McDermott & Company, the prime contractor , which provided the barge living quarters , decided to move the barge to another lo- cation . Before doing so , McDermott removed the equipment and belongings of several electricians in- cluding Mudge , who at the time was in Anchorage, from their living quarters and reassigned the living quarters to its welders . Mudge returned from Anchorage to the platform to learn that he had been transferred by McDermott to sleeping quar- ters occupied by members of the pipefitters union. When informed of this, Mudge complained to Wat- wood , the union steward, who discussed Mudge's grievance with Young. Young agreed to pay Mudge's transportation to and from Anchorage if Mudge felt he could not reside with persons em- ployed in other crafts . Mudge agreed to accept Young's offer to pay his transportation costs to and from Anchorage so that he could live "on-shore," until such time as quarters were available on either the barge or platform . When Mudge returned to Anchorage that evening , he notified Hackett, the Union's business agent, that the contract provision regarding housing was not being honored aboard the Phillips ' platform.10 The next morning, when Mudge returned to the platform from Anchorage , and there was still no liv- ing quarters available, Mudge was asked by W at- wood, the union steward , if he would agree to room with the pipefitters until other arrangements could be made . Mudge refused . The problem with regard to Mudge 's housing was ultimately solved by Young magnanimously agreeing to relinquish his quarters to Mudge. Young thereupon moved into the 9 The record indicates that both ends of a radiophone conversation can be heard by anyone in the radio shack pipefitters' quarters so that Mudge would not be subjected to sleeping in the same room occupied by members of the Pipefitters union. G. Mudge 's Second Altercation Mudge continued to work for Respondent until October 25 . On that day , Mudge engaged in an ar- gument with another electrician named Dion An- derson , who called Mudge a "white ticket man." This was reported by Mudge to Watwood, the union job steward , who with Mudge then spoke to Anderson. Instead of receiving an apology, Mudge and Anderson then got into a fight . Mudge suffered an injury to his ear and went below deck where he told Superintendent Young of the fight . Mudge told Young he needed medical attention and was return- ing to Anchorage on the crew boat to see a doctor. Young asked Mudge to wait until he spoke to An- derson . Young then spoke to Anderson. He received no staisfactory explanation from Ander- son, whereupon Young fired Anderson. In the meantime , unknown to Young , Mudge had left for Anchorage in the crew boat with all of his be- longings. Later in the evening, after Mudge had left, Young testified that he had a conversation with Irwin Manning , project engineer for McDermott, in which Manning told Young he was not going to allow Mudge back on the platform because of Mudge 's overuse of the radiophone , his fighting with employees, and also Mudge had had a serious argument with McDermott 's barge engineer. Young testified that he told Manning , "I thought it best if he leave the decision to us as to who we accept for hire and not, as we are considered the qualified personnel to make this sort of judgment." Manning agreed with Young . Young testified that the views of McDermott's officials, who had subcontracted the electrical work to Respondent, were of necessi- ty given considerable weight by him because: Well, we were working for them . If they got stern enough , or in the case of us loosing the job or something like that , we would have to work something out, but they always leave it up to us to handle it for them. The next day , October 26, Mudge called Young from Anchorage and told him he would not be returning to the platform. H. The Canceled Order There is considerable divergence of opinion between Respondent 's witnesses and witnesses for the General Counsel as to the sequence of events on October 25, and thereafter , in connection with Respondent's order to the Union to dispatch elec- tricians to the Phillips ' platform and whether there 10 The collective-bargaining agreement requires that electricians be housed only with other electricians See Section 111, A ENTERPRISE ELECTRIC WORKS 251 was a later cancellation of that request. According to the testimony of Sells, the Union's dispatcher (who fills in whenever the regular dispatcher is ab- sent''), about 3:45 p.m., on Friday, October 25, he received a phone call at the union hiring hall for one electrician from someone who identified him- self as being from Respondent Enterprise, and within minutes he received another call for "three more" men. Sells testified he did not fill Respond- ent's order on October 25 because it was late in the day and it was a Friday. He subsequently filled the order on Monday, October 28. Sells' testimony continues that sometime Monday morning , October 28, Mudge stopped at the union hall and Sells asked Mudge if he got down to his name on the book would he be interested in taking the Enterprise call for electricians and that Mudge answered: "He'd have to think about it." Sells testified that when Mudge returned to the union hall that afternoon he agreed to accept the dispatch to Respondent, and Mudge then left the union hall. About 5 o'clock, the same afternoon, Sells testified that he received a phone call from Respond- ent but was unable to state who of Respondent's personnel it was that called. Sells' testimony con- tinues that this unidentified person asked him if Mudge was one of the electricians who would be dispatched to fill Respondent's call for men. Sells stated that when he answered affirmatively, he was told by this unidentified caller that Mudge "was not acceptable." He requested the caller to state the reason for his nonacceptance and to put it in letter form and forward it to the Union, because, testified Sells, "It is unusual to have someone call in and cancel a person's name." The usual procedure, testified Sells, is "for the man to appear on the job if he had a dispatch and [for the employer] to refuse to accept him. 1112 Sells continued that the employer need not give a reason for refusing to accept the man. Sells testified that "either in the morning or after- noon " of October 29 he informed Mudge that Respondent had canceled its call for him. The fol- lowing day, Wednesday, October 30, Mudge testified he spoke to Hackett, the Union' s business manager , and, at Mudge's request, Hackett called Young, and asked Young "as a personal favor" to accept Mudge. Young told Hackett, according to Mudge, that he had no objections to Mudge "com- ing back" but that Manning , McDermott's official, did not want Mudge on the drilling platform premises . Mudge did not return to the platform. 1. Analysis and Conclusions The General Counsel contends that Mudge was not rehired because of his protected activities aboard the Phillips ' platform . The General Counsel argues that even if some of the conduct which formed the reason for Mudge 's failure to be rehired were unprotected and valid cause for discharge that these activities were condoned by Respondent, and, therefore , could not be a legal basis for its refusal to rehire him. The General Counsel contends that the doctrine of condonation should be applied to the present case on the theory that Respondent condoned Mudge 's activities and conduct which oc- curred at various times between September 19 and October 3 , specifically through its agreement with the Union , its rehire of Mudge, and its failure to take prompt disciplinary measures against him for his role in these activities. The General Counsel has further urged that Respondent later took advantage of Mudge 's fight with Anderson to visit reprisal on Mudge for the activities it had previously con- doned , namely his leadership in the wildcat strikes, the object of which was to bring direct and indirect pressure upon Moran Brothers to cease using nonu- nion personnel to do its electrical work. The Respondent urges first that it had no knowledge that Mudge was to be redispatched to the Phillips ' platform ; and, second, that Mudge voluntarily refused to go back to the Phillips' plat- form until he had talked with union official Hackett, and, therefore, forfeited his October 29 dispatch . Third, Respondent urges that Mudge's re- peated acts of misconduct were grounds for his discharge; and finally , even if it were found that Mudge was refused rehire because of his concerted activities that special conditions prevailed, includ- ing his gross misconduct, which removed the facts of this case from consideration as a "normal" case in which the concept of condonation applies. The resolution of the issues in this proceeding de- pends then upon two questions : What was Re- spondent's reason for refusing to rehire Mudge, and, whether that reason was good cause under the Act? It would appear that an employer can neither refuse to rehire an employee because he had en- gaged in unprotected activity , which the employer condoned , nor can he thereafter rely on that unpro- tected activity as cause for discharge . 13 This doc- trine of condonation appears to be one of estoppel created by the condonation which elevates erstwhile unprotected activity to the level of pro- tected activity . The reason for this doctrine is to promote peaceful settlements of strikes; that is, to preclude reprisals after the employer has misleadingly agreed to return its employees to work from an unprotected strike and then taking discipli- nary action for something apparently forgiven.t4 "Where ... misconduct is clearly shown, condona- " Sells testified he has done this about "a month a year for the last three years 12 The parties' collective-bargaining agreement provides that in hiring electricians the employer shall have the right to reject any applicant for employment 11 American River Constructors , 163 NLRB 55 I , Alabama Marble Com- pony, 83 NLRB 1047. See also Brantly Helicopter Corporation, 135 NLRB 1412, Poloron Products of Indiana, Inc., 177 NLRB 435 " Packers Hide Association , Inc. v N.L R.B, 360 F.2d 59, 62-63 (C A 8), which the Board cites approvingly in American River Constructors, supra, p 552 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion may not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not oc- curred."15 Condonation is a question of fact and a determination of whether an employer has forgiven unprotected activity of his employees requires an evaluation of all the relevant conduct. Condonation indcates an employer's willingness to "wipe the slate clean" and to continue voluntarily the em- ployer-employee relationship notwithstanding the fact that it was at one point terminated because of such events.ts In Poloron Products of Indiana, Inc.," the em- ployees walked out in violation of a no-strike clause. The Board held that the employer did not violate the Act when he discharged these em- ployees who took part in an admittedly unprotected strike in violation of the contractual no-strike provision, even though other employees who par- ticipated in the strike were merely suspended, whereas those employees who were discharged were those who had led an earlier strike less than 3 weeks before. The Board stated that prior con- doned activities could be taken into account by an employer in determining the degree of discipline to be administered when later unprotected activities occurred. In the Poloron case harsher discipline was visited on unprotected strikers who had previously engaged in an unprotected but condoned walkout than was meted out to strikers who had not en- gaged in the prior unprotected walkoff. The Board's rationale was as follows: Although the em- ployer had "condoned" the earlier strike by agree- ing to reinstate all strikers and to visit no reprisals upon them, the employees for their part impliedly agreed to remain at work for a reasonable period and not to walk out in the immediate future for a similar cause, and the employees reneged on this agreement when they participated in the second walkout. Thus, the Board concluded tha the em- ployees who again walked out following the em- ployer's condonation of the first walkout could not rely on the condonation of the prior walkout to render illegal the employer's action in harsher discipline in the latter walkout. The fact that the employer condoned the prior walkout by entering into a settlement promising that there would be no reprisals and that all the strikers in the first walkout would be reinstated, concluded the Board, did not render the employer's action illegal since the discharged employees reneged on their part of the settlement by participating in the second walkout, and the policy of favoring settlements, which is the " Plasti-Line, Inc v N.L R B , 278 F 2d 482, 487 (C A 6), N L R.B v. Marshall Car Wheel and Foundry Co of Marshall, Texas, inc , 218 F 2d 409 (C A 5) 16 M Esk,n & Son, 135 NLRB 666, 667 it 177 NLRB 435 ` s See Trial Examiner Silberman 's scholarly dissertation regarding the heart of the condonation doctrine, requires more than just the temporary abandonment of an unlaw- ful activity.18 The facts adduced at the hearing undercut the General Counsel's position because he had failed to show any right protected by the Act was violated by Respondent. First, the General Counsel has not sustained his burden of proving that the so-called "condoned activities" were the Respondent's reasons for allegedly refusing to rehire Mudge. Second, under the circumstances extant in the Alaskan labor market at the time of the walkouts, namely, an acute shortage of available electricians, it is a reasonable inference that Respondent had no other choice than to "condone" the strike activi- ties. To not consider this cogent circumstance, would be equivalent to ignoring the realities of Alaskan industrial conditions which are glaringly manifested in this record. Third, the General Coun- sel failed to meet his burden of proof that it was Respondent who refused to rehire Mudge. Finally, it appears that neither the concept underlying the doctrine of condonation nor the policies of the Act would be furthered by the use of that doctrine to find an unfair labor practice in this case. It is clear from the entire record, particularly the escapades of Mudge outlined above, that there is neither condonation nor a causal relationship between Mudge's unprotected conduct and his failure to be reemployed by the Respondent Em- ployer. Then too, the situation here involved in- cludes, inter alia, wildcat strikes in breach of con- tract. There was no voluntary waiver so as to preclude or estop Respondent in view of the cogent circumstances and facts of industrial life peculiar to this case, namely, an acute lack of electricians available in Alaska, which be stress of circum- stances compelled Respondent to disregard em- ployees' derelictions because, as Respondent's su- F erintendent explained, "it seemed kind of ridicu- ous to fire" an electrician when there were no replacements in Alaska.19 To hold otherwise, in the context of Mudge's provocations, would reward him and penalize Respondent and be contrary to the spirit and purposes of the Act rather than promote industrial peace, as well as the best in- terests of labor-management relations.20 Respondent asserts in the context of Mudge's role in the wildcat strikes of September 19 and Oc- tober 3, there must be considered Mudge's abrasive conduct which incurred not only the antipathy of the employers (other than Respondent), who were working on the platform, but also the enmity of some of his own fellow union members who worked with him. In fact, Respondent exhibited the prover- lack of clarity with respect to the existing law on "condonation" in his recent decision in 4Needham Packing Company, Case 9-CA-9415, and his critique of a decision on this subject issued by Trial Examiner Summers " See Section 111, C and I, and fn 7 Y0 Cf Packers Hide Association v N L R B , supra, p 63 ENTERPRISE ELECTRIC WORKS 253 bial patience of Job, as witness, Laurin's attempts to coddle and mollify Mudge. It would appear, therefore, that Respondent went about as far with Mudge as any reasonable employer is required to go even though Mudge provoked both Laurin and Young to the limits of their endurance. Laurin chose to stay in the same hotel room with Mudge during the September 19 wildcat strike and he took Mudge back after that walkout and also after a fight with Forbes, another electrician. Moreover, Young endured Mudge's part in the il- legal strike of October 3 which may or may not have cost the Respondent a contract which Young estimated would have brought a $20,000 profit to the Respondent. Yet immediately after this Young took Mudge's part when the radio shack was locked because of Mudge's numerous calls to the Union, Alaska Legislator Harris and the news media, and successfully interceded with McDermott to remove the padlock from the radio shack. Still later, Young not only offered to pay Mudge's transportation to and from Anchorage to assure Mudge that he would not have to sleep aboard the platform in the same room with members of the Pipefitters Union, but he also had to eventually turn over his own sleeping quarters to Mudge in order to placate him. Finally, Mudge was involved in yet another fight on October 25 with a fellow union member. That night Young was pressured by Manning, an official of McDermott & Company, not to allow Mudge back on the platform because of his constant fighting. Manning also related to Young Mudge's contentious attitude in an argument between Mudge and a McDermott supervisor. It seems more credible that the cumulative effect of all these events, occurring in a period of barely more than a month, capped by the fights and their aftermath on October 25, finally convinced Respondent to for- bear no more when it realized Mudge's conduct was so disruptful of its operational procedures that it exceeded the permissible limits of concerted ac- tivity so as to cause its efficiency to be impaired. Such conduct cannot be transformed into "pro- tected activity" so as to give sanctuary to one en- veloping himself in the cloak of his union, particu- larly so, where his labor organization might view its member's zeal with a baleful eye. Respondent's position was a delicate one. It had to deal gingerly with Phillips Petroleum Company, the owner of the drilling platform, and Phillips' sub- contractor, Moran Brothers, along with Respond- ent's prime contractor, McDermott & Company, all within the close confines of the drilling platform, as well as maintaining the morale of its electricians living in admittedly cramped quarters and who worked 12 hours a day, 7 days a week. Also, during that short period from September 15 to October 25, Respondent found itself on the horns of a dilemma in protecting Mudge from other employers with which it wished to maintain friendly relations and from Mudge's fellow workers and brother union members. Commonsense dictates that Respondent is not to be held guilty of committing an unfair labor practice for its alleged failure to rehire Mudge under such extenuating circum- stances. For the reasons stated below, it is found that Respondent neither refused to rehire Mudge nor infringed upon any right of his which is pro- tected by the Act. The concept of the term "condonation" implies a voluntary choice. The record in this proceeding reflects the hesitancy of Respondent's supervisors to fire others of its employees when it would appear there was good and sufficiently valid cause. The reason for this hesitancy was due to there being such a shortage of labor generally in Alaska, and of electricians particularly, and that to discharge a man hurt no one but the firm doing the firing in that the dischargee's services were so in demand by other employers. This shortage, which is uncon- troverted, was testified to by both Laurin and Young and formed the basis of Laurin's decision not to fire Forbes on September 21. Nor is it inap- propriate to take official notice of the fact that wages in Alaska are exceedingly high, in part, in an effort to obtain skilled labor to go there. Furthermore, the doctrine of condonation has as its underlying objective the promotion of peaceful settlement of strikes by precluding an employer from later reneging on his promise that he will not take reprisals if the men will return to work. It would appear that Respondent lived up to its bar- gain to reinstate all the employees engaged in the unprotected September 19 walkoff. Mudge was a beneficiary of that offer. Because Mudge had en- gaged in fights with fellow employees and was a source of discomfort and embarrassment to Respondent in its relations with the other em- ployers, it would seem that there would have to be a strong showing that Respondent took its action because of the "condoned" strike activity as al- leged by the General Counsel. This might have been shown by reference to threats to or reprisals against others who took part in or, perhaps, led the wildcat strike. If this were shown, it would then seem at least, arguable that the actions of Respond- ent with regard to Mudge were within the area of activities to be remedied by implementation of the condonation doctrine . However, there is nothing in the record to indicate that Respondent bore a grudge against anyone arising specifically from the alleged "condoned" activities. Rather it would ap- pear that Respondent's feelings with regard to Mudge should be characterized as a generalized ex- asperation at finding itself in almost continous tur- moil because of Mudge's fights and other extracur- ricular activities. As stated above, the record is replete with evidence showing that Mudge was so contentious and disruptive of Respondent's operations to the point of being intolerable that he provoked Re- spondent's officials to the limits of their endurance. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conduct disruptive of management procedures that exceeds the permissible limits of concerted activity and which results in the employer's operational effi- ciency being impaired cannot be transformed into "protected activity" merely because the alleged dis- criminatee happens to be a union member.21 In fact, if Mudge had been discharged for such con- duct as is detailed above, there would be no viola- tion of the Act.22 A fortiori, there can be no in- ference of a discriminatory motive under the cir- cumstances revealed by the facts in this case. There is no evidence of union animus or that the refusal to rehire Mudge, as alleged in the complaint (which is contrary to the finding made below), was discriminatorily motivated. Discrimination presup- poses or implies disparate treatment. Moreover, there is no evidence of unlawful discrimination because General Counsel has failed to disprove, by a preponderance of the of the credible evidence, Young's denial that it was any duly authorized representative of Respondent who told the union dispatcher that Mudge was not acceptable. The only evidence produced by the General Counsel is that some unidentified caller telephoned the union hiring hall but no probative or substantial evidence was adduced to show that this call came from the Respondent. In fact, Sells, the temporary union dispatcher, testified that: "It is unusual for someone to call in and cancel a person's name" and that is why he made the request of this unidentified caller to state the reasons for his nonacceptance of Mudge and to put it in written form and mail it to the Union. Such evidence does not even raise a suspicion that this telephone call came from the Respondent. Accordingly, the General Counsel has not shown by a preponderance of the credible and probative evidence that there is any basis for the al- legation that Respondent discriminatorily refused to hire Mudge. Per contra, the credible testimony shows that Respondent's denial that it ever can- celed its request to the Union for electricians stands uncontradicted by any probative evidence. Finally, there is no evidence in the record to show that Respondent's dealings with the Union were anything other than amicable. Therefore, the trier of these facts is unable to see where the testimony adduced by the General Counsel attains the stature of even suspicion, let alone an unfair labor practice. Under these circumstances, it is dif- ficult to perceive, upon the evidence elicited at the hearing, the basis for the General Counsel's allega- tions in the complaint that the Respondent can- celed a request that the Union dispatch electricians to the Phillips' project upon learning that Mudge was among those to be dispatched and thereby refused to rehire him. Then too, the Board has repeatedly dismissed un- fair labor practice allegations on the ground that the Charging Party has failed to exhaust his remedies under the grievance procedures established by a collective-bargaining contract.23 General Counsel's Exhibit 2, page 13 of the collec- tive-bargaining agreement, executed by the Respondent and Union, provides for such a grievance procedure. It would appear that the adju- dication of the complaint herein should be eschewed in deference to the grievance procedure to which the Union and Respondent Employer have contractually obligated themselves to adhere to in Section 4.2 where it is provided that "All grievances or questions in dispute shall be adjusted by the duly authorized representatives of both parties to this Agreement." Moreover, to adju- dicate this dispute might be tantamount to an oblique vitiation of the grievance procedure itself in that it would serve as a rallying point as well as an alternative forum for litigants who would be en- couraged thereby to fit another arrow to their bow by concurrent recourse to Board processes rather than adhering to the contractually agreed-upon grievance procedures. Furthermore, if the parties are required first to exhaust their rights under the grievance procedures, as a condition of obtaining a Board determination, this might eventuate, in many instances, in the aborting of incipient unfair labor practice proceedings. Finally, a decision obtained through the utilization of such machinery would have resolved the matter complained of in a manner compatible with the purposes of the Act. It would seem, therefore, and the Board has so held, that if the dispute is referable to the agreed-upon grievance machinery, a charge or complaint should not issue until that procedure has been exhausted.24 "In these circumstances [it is] believe[d] that the policy of promoting industrial peace and stability through collective bargaining warrants deferring the matter to the procedures that the parties them- selves have voluntarily established under binding commitment. "25 It is the Trial Examiner's judgment that no right protected by the Act has been infringed upon by Respondent. Moreover, no union animus has been " Midwestern Instruments , Inc., 131 NLRB 1026. Cf. N L R B. v Jones Sausage Company, 257 F 2d 878, 881 (C A 4) re B B Crystal Company, 70 NLRB 985 Cf Arlan 's Department Store of Michigan , Inc , 1133 NLRB 802 ' Consolidated Aircraft Corporation, 47 NLRB 694, 706, Retail Clerks In- ternational Association (Food Employer's Counsel), 125, NLRB 984, 1002, McDonnell Aircraft Corporation, 109 NLRB 930, 934-935, Morton Salt Company, 119 NLRB 1402, 1403 Midland Broadcasting Co, 93 NLRB 455, 457, Local 905 of the Retail Clerks International Association (A-1 Photo Service), 83 NLRB 564, 568, fn 11 Cf Textile Workers Union of America v Lincoln Mills, 353 U S 448, United Steelworkers v American Mfg Co , 363 U S 564 See also Title 11, Section 203(d) of the Act and Na- tional Dairy Products Corporation, 126 NLRB 434, 435 2' Croan Zellerbach Corporation, 95 NLRB 753, United Telephone Com- pany of the West, 112 NLRB 779, 781, McDonnell Aircraft Corporation, supra, and Consolidated Aircraft Corporation, supra The Supreme Court in 1939 ruled that an employer need not offer reinstatement to employees who struck in violation of their contract because such a strike is unpro- tected where the collective-bargaining agreement provides there shall be no strike until the grievance procedure is exhausted N L R B v Sands Manufacturing Co , 306 U S 332 See G C Exit 2, Sec 3 10, p 10, which the Union did not abide by when the "wildcat" strikes occurred 25 Concurring opinion in Navajo Freight Lines, Inc , 180 NLRB 516 See International Harvester Co, (Indianapolis Works) 138 NLRB 923,927 ENTERPRISE ELECTRIC WORKS shown and nor has the General Counsel shown that it was Respondent who refused to accept Mudge. Accordingly, it is found Mudge's inability to be rehired was due to no illegal conduct on Respon- dent's part nor was there any interference, restraint , or coercion within the meaning of Section 8(a)(1) with respect to the free exercise of rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Enterprise Electric Works , the Respondent, is an employer within the meaning of Section 2(2), 255 ( 6), and (7) of the Act. 2. IBEW , Local 1547, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act as alleged in the complaint, nor has it engaged in any other unfair labor practices. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety.