Universal Services, Inc.

UNIVERSAL SERVICES, INC. 381 Universal Services, Inc., and Associates and Wilson 0. Neufeld . Case 19-CA-4255 June 30, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On October 27, 1969, Trial Examiner Irving Rogosin issued his Decision in the above-entitled case, finding that 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 Decision . Thereafter, the Respondent filed exceptions to the Trial Ex- aminer 's Decision and a supporting brief The National Labor Relations 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 Deci- sion, the exceptions and brief, and the entire record in this case , and hereby adopts the findings , conclu- sions, and recommendations of the Trial Examiner, with the following modifications. 1. The Trial Examiner found that Local 341 [Construction and General Laborers' Union , AFL-CIO] or the laborers did not agree to be bound , and that they were not as a matter of law bound , by any of the terms or conditions of employment of the Local 302 [international Union of Operating Engineers , AFL-CIO] contract, except as to wage scales, including fringe benefits, hours of work , or conditions of employment bearing directly on these items He therefore concluded that the five discharged employees were not required to observe the grievance procedure or no-strike provision of that contract . In reaching this result , the Trial Examiner reasoned that the Local 341 laborers did not have specific knowledge of the no-strike provision of the contract, and had not " agreed to be bound by it, or to waive the right to strike." We agree with the ulti- mate conclusion of the Trial Examiner , but for the reasons given hereafter. In 1966 Respondent and Local 302 entered into a collective-bargaining agreement , which provided for a grievance procedure and contained a no-strike provision . This agreement related to Respondent's performance as a subcontractor of RCA in the ' Pursuant to the provisions of Section 3(b) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel development of the "White Alice Communications System." In 1967, shortly after becoming a subcon- tractor of the A.E.C. at the Amchitka, Alaska, nuclear testing project, Respondent and Local 302 entered into a "Supplement to 1966-1969 Agree- ment ...... In 1968 the above parties entered into a second agreement. These latter two documents have the ostensible purpose of establishing a collec- tive-bargaining agreement between Respondent and Local 302 at the Amchitka site. The "supplement" entered into in 1967 made it clear that the parties intended to incorporate all of the terms of the un- derlying White Alice agreement into the Amchitka agreement . The second document, however, was simply captioned "1968" and began, "The follow- ing items reflect the wages, hours and conditions of employment relative to the M. and O. operations of Universal Services, Inc. at Amchitka Island, Alaska." There followed 14 provisions, covering "Basic Day" and "Basic Work Week," travel time, overtime , wage payments rules and procedures, holiday pay, vacations, sick leave, food and lodging, travel and transportation for laid-off employees, health and pension benefits, and wage rates for three classifications. This document makes no specific reference to the preceding agreements. While Respondent contends that the 1967 and 1968 documents merely supplemented the basic 1966 contract mentioned above, we find that the three documents considered together, and the prac- tice of the parties thereunder, make it impossible to determine the exact nature of the contractual ar- rangement between the parties or to conclude, as Respondent would have us do, that the employees were clearly bound by a no-strike provision. While the 1967 document incorporates most of the provi- sions of the White Alice contract, presumably in- cluding its no-strike clause, the 1968 agreement is another matter. That document seems to describe itself as a self-contained contract (although some of the brief provisions, such as those pertaining to "pensions" and "health and welfare," cannot stand alone), and it makes substantial changes from the White Alice and the 1967 "supplemental" agree- ment . In our view, the careless and ambiguous manner in which the parties formalized their con- tractual arrangements raises a genuine doubt as to whether they had legally bound themselves, at the end of 1968, to a no-strike clause. That doubt is reinforced by their practice under the collective- bargaining arrangement at Amchitka. Thus, Local 302's hiring hall was often not used and members of other crafts were not required to become mem- bers of Local 302, despite the basic contract's union-security and hiring-hall provisions. Further- more , by separate arrangement between Local 302 184 NLRB No. 42 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Local 341, pension fund contributions for Local 341 members went to Local 341's separate fund. The failure of Respondent and Local 302 to enforce the above contract provisions is incon- sistent with Respondent's contention that the provi- sions in the 1966 basic agreement applied to the Amchitka employees. To the contrary, such lack of enforcement is more consistent with the General Counsel's contention that the no-strike provision did not apply to the Amchitka employees. With these considerations in mind , we conclude that no clearly definable contract was in effect between Respondent and Local 302 at the time of the discharge of the five strikers and that they, ac- cordingly, cannot be considered to have been bound by a provision restricting their right to strike. 2. In the section of the Trial Examiner's Deci- sion entitled "The Remedy," the Trial Examiner recommended, in essence, that the discharged em- ployees be offered reinstatement and be made whole from the "date of the discrimination against them." Respondent takes this latter reference to be the date of discharge, and contends that the backpay period should start only after the em- ployees, who were on strike at the time they were discharged, make application for reinstatement. We do not find this contention to be meritorious in the present case. Since an employee on strike is not entitled to compensation, his right to any backpay award does not normally commence until he notifies his em- ployer that the strike is over and he is ready to resume work. The theory behind this rule is that an employee who voluntarily withholds his services from his employer must indicate his willingness to return to work in order to establish his right to re- sumption of wages. In contrast to voluntary strikers are the em- ployees in the present case, who were discharged during the course of their strike. The Respondent made it clear by the discharges that it no longer desired the services of these employees, and they, accordingly, had no reason to notify the Respon- dent at the end of the strike that they wished to resume work. As is true of unlawfully discharged employees in general, Respondent had the obliga- tion to offer reinstatement to these employees at the end of the strike, despite their failure to apply for reinstatement. It seems clear that, in this case, we may consider that the strike terminated when the reasons which brought it about ceased to be. That date may be pinpointed as January 14, 1969, when employees Julsen and Blount were fully rein- stated to their jobs and Foreman St. Pierre was discharged.' We therefore find that the five dis- criminatees were entitled to an offer of reinstate- ment as of January 14, 1969, and that their right to backpay commenced at that time.3 The remedy sec- tion of the Trial Examiner's Decision is amended accordingly. 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 Respondent, Universal Services, Inc., and Associates, Anchorage, Alaska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' Compare Sea- Way Distributing , Inc , 143 NLRB 460, where the strikers continued to strike after being discharged, and the employer continued to withhold recognition of their union , the issue which had originally caused the strike ' Southern Greyhound Lines, Division of Greyhound Lines, In( , 169 NLRB No 148, enfd sub nom N I. R B v Southern Greyhound Lines, 426 F2d1299(CA 5) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IRVING RoGosIN, Trial Examiner: The amended complaint, hereinafter referred to as the complaint, issued May 27, 1969, alleges that Universal Ser- vices, Inc., B-E-C-K Constructor and Raber Kief, Inc., have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) by specified acts and conduct, hereinafter detailed.' Respondent's answer admits generally the procedural and jurisdictional allegations of the complaint and the termination, on or about December 28, 1968, of five named employees,' who engaged in a concerted work stoppage on or about December 26, 27, and 28, but expressly de- nies that these employees were discharged or refused reinstatement because of their alleged pro- tected concerted activities or membership in, or ac- tivities on behalf of, the Union, and generally de- ' The original charge was filed and served on January 15, 1969, and the original complaint was issued on May 14, 1969 The amended charge was filed and served on May 20, 1969, and the amended complaint was issued on May 27, 1969 Designations herein are as follows The General Counsel, unless otherwise stated , his representative at the hearing, Universal Ser- vices, Inc , B-E-C-K Constructors and Raher Kief, Inc , a joint venture, Respondent, the Company or the Employer, Construction and General Laborers' Union, Local No 341, AFL-CIO, Local 341, or the Union, In- ternational Union of Operating Engineers , Local No 302, Local 302 or the Operating Engineers , the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C Sec 151, et seq I, the Act, the National Labor Relations Board , the Board Unless otherwise stated, all events oc- curred in the latter part of December 1968 ' Wilson D Ncufcld (the Charging Party), Alex Perez, Clarence Moir, Harold Weser, and Anthony (Tony) Fleischman UNIVERSAL SERVICES, INC. vies the remaining allegations of the complaint. As a further and affirmative defense, Respondent al- leges, in substance, that these employees were covered by a written collective-bargaining agree- ment between Universal Services, Inc., and Local 302, which contained a no-strike or work stoppage provision for the life of the agreement, and sub- jected employees violating this provision to im- mediate discharge; alleges further that, on or about December 26, said employees, in. violation of said provisions, engaged in a work stoppage and wildcat strike, and despite the offer of Respondent, the Union, and Local 302 to utilize the grievance procedure of the contract, and their admonition to said employees to return to work and file written grievances, failed to do so, and continued to engage in said work stoppage and wildcat strike on December 27 and 28; and terminated their employ- ment on or about December 28, 1968. Hearing was held from July 8 to 10, 1969, both inclusive, at Anchorage, Alaska. All parties were represented by counsel (the Charging Party appear- ing in person) and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence relevant and material to the issues , to argue orally, and to file briefs and proposed findings of fact and conclusions of law. At the conclusion of the General Counsel's case, Respondent moved to dismiss the complaint. The motion was denied, with leave to renew before the close of the hearing, but the motion was not renewed. The parties declined the opportunity to argue orally, reserving the right to file briefs. Briefs were received from the General Counsel and Respondent within the allotted time, on August 14, 1969. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case, his observa- tion of the attitude and demeanor of the witnesses, and the bries of the parties, which have been fully considered, the Trial Examiner hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges , Respondent 's answer ad- mits , and it is hereby found, that Respondent is a joint venture consisting of the following entities: Universal Services, Inc., B-E-C-K Constructors and Raber Kief, Inc. Universal Services, Inc., a Texas corporation , is a service organization engaged in providing feeding, housing, and maintenance ser- vices on Amchitka Island , Alaska, and acts as the sponsoring joint venturer for said services. During the most recent fiscal or calendar year, Respondent rendered services and furnished goods and supplies for the United States Air Force and ' This allegation was added by amendment during the course of the hear- ing Although Respondent initially objected to this amendment , it withdrew the objection The issue was fully litigated at the hearing 383 the Atomic Energy Commission valued in excess of $500,000. It is further alleged, admitted, and hereby found that, by virtue of the foregoing, Respondent is now, and at all times material herein has been, an em- ployer within the meaning of Section 2(2), engaged in commerce , and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and the jurisdictional standards of the Board. II. THE LABOR ORGANIZATIONS INVOLVED Construction and General Laborers ' Union, Local No. 341, AFL-CIO, and International Union of Operating Engineers , Local No. 302, AFL-CIO, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent discharged the named employees on or about December 28, 1968, and thereafter refused to reinstate them because they had engaged in a concerted work stoppage and picketing on December 27 and 28, allegedly to protest the discharge of a fellow employee on grounds of racial discrimination and another, on the ground that he was a union steward and had en- gaged in union or concerted activities ,3 and, addi- tionally, to protest against the aggressive conduct of their foreman. 2. Whether the named employees, who engaged in said work stoppage and picketing, were covered by the written collective-bargaining agreement between Universal Services, Inc., and Local 302. 3. Whether article VII of said collective-bargain- ing agreement prohibiting strikes or work stoppages during the life of the agreement, and subjecting em- ployees who violate the terms of that article to discharge, affords Respondent a defense to the discharge and refusal to reinstate the named em- ployees. 4. Whether the failure of the named employees to resort to the grievance procedure of the collec- tive-bargaining agreement between Universal Ser- vices, Inc., and Local 302, despite the willingness of Respondent, the Union, and Local 302 to utilize said procedures, and the continuation by said em- ployees of the work stoppage and "wildcat" strike warranted Respondent in discharging and thereafter refusing to reinstate said employees. B. Events Culminating in the Strike The events giving rise to this unfair labor practice proceeding occurred at Amchitka Island, Alaska, in the Aleutian Islands Chain, some 1,400 miles southwest of Anchorage, where the Atomic Energy 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commission has been engaged in the preparation of the site for underground nuclear testing .' This work was being performed by Holmes & Narver , Inc., the prime contractor, under agreement with the Atomic Energy Commission. Between 1960 and late 1966 Universal Services, Inc.,' herein referred to as Universal ; furnished sup- port services, primarily maintenance and operation (M & 0), in connection with the construction of a warning system, designated as the White Alice Communications System, as a contractor for RCA Service Company,' for the Corps of Engineers, De- partment of Defense. On November 30, 1966 , Universal entered into a collective-bargaining agreement with Local 302, In- ternational Union of Operating Engineers , effective from July 1, 1966 , until June 30, 1969 , and an- nually thereafter , in the absence of specified notice by either party prior to any anniversary date. By the terms of this agreement, Universal recognized the Union as the exclusive bargaining representative for "all maintenance and operational Employees of the Company in the White Alice Communications System in the state of Alaska," with stated exclu- sions,7 in accordance with the Board 's certification, dated March 18, 1959, in Case 19-RC-2260. Ap- pended to this agreement as Schedule " A" were the wage rates, with increases effective on July 1, 1967, and July 1, 1968, in three broad categories, designated as multipurpose shop , stations, and plant maintenance group , for lead mechanic, main- tenance mechanic , maintenance mechanic tempo- rary (hired for less than 90 days), and mechanic's helper.' The contract contained conventional hiring hall, union security , grievance and arbitration clauses," and a no-strike or lockout provision sub- jecting employees engaging in an unauthorized strike to immediate discharge Late in 1966 Universal began performing M & 0 services for the Corps of Engineers at Amchitka. According to Bert R. Londerville, general manager of Universal for the State of Alaska, three em- ployees previously engaged on the White Alice pro- ject were assigned to M & 0 work at the Amchitka operation prior to February 15, 1967. On that date (February 15, 1967), Universal ex- ecuted a 1 -page supplement ( with schedule at- ' Since the close of the hearing , as reported in the various news media, the Atomic Energy Commission detonated the first of a contemplated se- ries of underground nuclear explosions at this site on October 2, 1969 5 As differentiated from Universal Services, Inc and Associates , the joint venture , Respondent in this proceeding The record does not disclose when the joint venture was formed , the terms of the joint venture , or the manner in which the collective -bargaining agreement between Universal Services, Inc , and Local 302 came to be applied to the joint venture , except that Universal Services , Inc , acted as the sponsoring venturer No issue has been raised , however , as to the applicability of the agreement to the ven- ture , except as Respondent has sought to apply it to the laborers involved in this proceeding ' So designated in a letter from Universal to Business Agent Russell T Conlon , Operating Engineers , dated November I, 1966, included in the booklet copy of the collective -bargaining contract between Universal and Local 302, presently mentioned r Truckdrivers , pickup drivers , forklift operators , partsmen , material handlers , warehousemen and warehousemen 's helpers working in the Com- tached) to the 1966-69 collective-bargaining agree- ment with Local 302, which had previously covered the White Alice Communications System, extend- ing coverage of that agreement to the Amchitka project. The supplement provided for the addition of a new job classification to be known as "Utility," and eliminated the job classification of temporary maintenance mechanic, generally covering laborers at a wage scale of $4 38, effective July 1, 1966, $4.67 on the next anniversary date, and $4 98 a year thereafter. Attached to the supplement was a list of job classifications, entitled "SCHEDULE A, Amchitka Area," providing for three broad classifi- cations of lead mechanic , maintenance mechanic, and utility, under the heading "Equivalent Station Classification." The classification "Utility" was used to cover laborers performing M & 0 services at the Amchitka project Other classifications, not material here, were listed under the heading, "Amchitka Classification." A subsequent memorandum headed simply "1968" was executed by W. P. Grobe, on behalf of Universal, and R . T. Conlon, as business manager of Local 302 , reflecting the wages , hours, and working conditions covering Universal's M & 0 operation at Amchitka Island, Alaska. Under this memorandum , the wage rate for the job classifica- tions of "Utility" was $4 . 83 an hour , with health and welfare and pension contributions of 30 cents and 40 cents per hour, respectively, all effective July 1, 1968. Other provisions included definition of the "Basic Day" of 9 hours , Monday through Saturday , a guaranteed 54-hour week ( except when in travel status ), travel time , overtime, payday, holidays, vacations.10 Thereafter, Universal, presumably acting as the sponsoring venturer , and as subcontractor furnish- ing support services for the prime contractor, hired employees in various classifications including car- penters, plumbers , teamsters , sheet metal laborers, and operating engineers , among others. As has been noted , the basic collective-bargaining agree- ment designated Local 302 as the exclusive bar- gaining agent of all maintenance and operational employees, with exclusions not here material, in the White Alice System, and later, by extension, to those employed on the Amchitka project. It ap- pany's warehouse section in Anchorage, Alaska, and all culinary workers, office clerical employees, professional employees, guards and supervisors A note to this wage schedule reads With respect to the wage increases effective 7/1/68 it is understood and agreed that the Operating Engineers may elect to take any portion of the wage increases and apply same to the health and Security and/or Pension Employer contributions This option was, in fact, later exercised by the Laborers Union under the 1968 memorandum agreement between Universal and Local 302, men- tioned later ' The arbitrators are designated as a board of conciliation , consisting of one person to he appointed by each of the parties, with the two selecting the third member , and, in the absence of agreement , the third member to be appointed by a judge of the Superior Court of the State of Alaska 10 The memorandum also provided for the furnishing of food and lodging to employees while at the jobsite , and payment of travel time and transpor- tation expenses for employees laid off for lack of work, but not for those who quit or were terminated for cause UNIVERSAL SERVICES, INC. 385 pears, however, that in actual practice the contract covered essentially employees performing the func- tions of operating engineers. Thus, employees who were members of other crafts, such as those enu- merated above, were not required to utilize Local 302's hiring hall," were not required to comply with the union-security requirements, or other terms and conditions of the collective-bargaining agreement with Local 302, except to the extent that it established wage rates, hours of work, or other working conditions for employees in the respective job classifications. The contract between Universal and Holmes & Narver, Inc,, the prime contractor for the Atomic Energy Commission at Amchitka Island, for the performance of M & 0 services was entered into on or about February 10, 1967. By the terms of that contract, Universal undertook to supply main- tenance and operational services, including the furnishing of food, housing, laundry, and other ser- vices required for the basic operation and main- tenance of the campsite.12 This project was wholly unrelated to the White Alice System, which was situated in another area at a different location, and in which Holmes & Narver, Inc., was not involved. With the execution of the Amchitka contract, Universal began to recruit workers for the project through the unions. Early in March 1967, Harold Groothius (since deceased), business manager of Local 341, Laborers' Union, conferred with Paul Grobe, vice president of Universal, with a view to obtaining employment for members of his local. Groothius also discussed the subject with Millard F. Alewine, district representative of District 6, Local 302, Operating Engineers, covering the Aleutian Islands, in charge of the administration of collec- tive-bargaining agreements. As a result of these conferences, an understanding was reached whereby laborers on the Amchitka project were hired at the same wage rates and working condi- tions as utility workers under the collective-bar- gaining agreement between Universal and Local 302. No written agreement was executed between " There was a possible exception , at least during a part of the time with which we are concerned, in the hiring of laborers As will later appear, there was evidence that some laborers who were members of Local 347 were initially dispatched from its hiring hall to Local 302 's hiring hall, and then dispatched to Universal It appears, however , that this procedure was abandoned in the latter half of 1968 , and that laborers were dispatched thereafter to Universal directly from Local 347's hiring hall "The contract is not in evidence , and the details are not essential to any determination of the issues "The job classification of "Utility" employees included oilers and firemen as well as laborers and helper -, Under arrangements between the Laborers Union and the Operating Engineers , health and welfare as well as pension fund contributions provided for under a master agreement with Associated General Contractors (AGC, erroneously referred to in the transcript as "AEC") for Alaska, covering members of the Laborers Union, were paid into the Laborers Trust Fund In several instances, these contributions were mistakenly credited to the Operating Engineers Trust Fund , very likely because both funds were administered by the same per- son, but this was later rectified when brought to the attention of the ad- ministrator 's office " Moir on March 29, 1968, Weser on August 29, 1968, Perez on November 12, 1968, and Neufeld and Fleischman , on December 10, 1968 These men were issued dispatch slips to Universal by Local 341 and, after Universal and Local 341, but Respondent and Local-302, as well as Local 341, have consistently maintained that laborers, whether dispatched by Local 341 to Local 302, and thence to Universal, or whether dispatched by Local 341 directly to Universal, were bound by all the terms and condi- tions of the collective-bargaining agreement between Universal and Local 302, an issue which is the crux of this controversy. The General Counsel contends, for reasons discussed hereinafter, that the mere fact that Universal and Local 341 agreed that the wage rates, health, welfare, and pension plan contributions applicable to the job classification of "Utility" employees under the contract with Local 30213 would be uniformly applied to laborers hired by Universal who were members of Local 341, did not render them subject to all the remaining provi- sions of Local 302's contract. Pursuant to the arrangement between Local 302 and Local 341 for the dispatching and hiring of laborers, the five employees alleged to have been discriminatorily discharged were dispatched to the Amchitka project.14 The laborers involved in this proceeding worked under the direct supervision of Foreman Clifford (Pete) St. Pierre. When these laborers arrived at the Amchitka project, there was no union steward to represent them. A project steward, however, identified by Julsen as Bob Bittenger, employed by another con- tractor on the project, attempted to handle grievances for the M & 0 laborers, but Foreman St. Pierre declined to deal with him.15 According to Perez, St. Pierre said that the project steward was working for Chris Berg, and had no jurisdiction over laborers working for Universal. He advised the laborers to elect their own shop steward from among their group.16 In the latter part of November, the laborers ob- tained permission from Wallace Parker, Universal's project manager , to hold a union meeting, and notified him that they intended to elect a union steward. Julsen, who was elected, accepted passing a physical examination by Holmes & Narver , returned to Universal for the completion of personnel papers The men were then furnished hire and dispatch slips, containing their names , jobsites to which they were as- signed, job classification (Laborer Class 581), hourly rate ( $4 83), and means of transportation to the jobsite (via Alaska Charter) Other laborers employed at the Amchitka jobsite at the time of the discharge of these five included, in addition to Foreman Clifford St Pierre, Frick Julscn, Wash Blount, Ed Tomco, Leland Smith, Charles Weller, Robert (Bob) Madsen, and Angus McPhee, the last of whom arrived at the jobsrtc on December 24, 1968 Although there was testimony that in the first half of 1968 mem- bers of Local 341 were sometimes dispatched first to Local 302, and then to Universal, the records disclose that the five dischargers involved here were dispatched by Local 341 directly to Universal 15 According to Julsen, the project steward worked at the north camp, while the laborers worked at the west camp, which was known as the C P (Command Post), located at the other end of the island, so that it would he a month before the project steward could get to the Command Post In any event, the project steward left Amchitka in the latter part of 1968 '" St Pierre, who was eventually terminated on January 14, 1969, did not testify, and there was no showing of his unavailability at the time of the hearing Findings regarding the events in which he was involved are based upon the credible and mutually corroborative testimony of the laborers who were witnesses for the General Counsel 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somewhat reluctantly, because his choice had been Wash Blount. Next day, when Julsen reported to work, he notified Parker of his election as job steward, and requested permission to hold a meeting of the laborers . Permission was granted , Parker stating, according to Julsen, "You can have one anytime you wish ." Julsen requested Parker to furnish him with a copy of the collective-bargaining agreement under which the laborers were working. Parker said that he had one somewhere but he could not locate it, though if there was a "dire" need for it, he would try to find it. That morning , St. Pierre assembled the laborers, and told them , " I hear there is a lot of grumbling going on," adding , " If you got any gripes , I want to hear it now." St. Pierre had indicated that he wanted to attend meetings of the laborers but the men rejected his suggestion because they were reluctant to criticize him in his presence for fear of reprisals. That night, Julsen held a meeting of the laborers. He urged them to avoid becoming involved in petty complaints , and recommended instead that they submit something "concrete " which he could sub- mit to St . Pierre for his consideration . Among com- plaints discussed was the claim that construction work, which called for a rate of $1.05 an hour more than the M & 0 rate, was being assigned to only a select few of the laborers, instead of being dis- tributed equitably so that all laborers would have an opportunity to earn the construction rate. It was also claimed that laborers performing construction work were not being paid the proper rate. Criticism also dealt with St. Pierre 's grudging attitude toward coffeebreaks, which the Company allowed but which St. Pierre steadily curtailed . Some laborers who did not smoke or drink coffee simply relaxed, utilizing the break as a rest period , and this irritated St. Pierre . Julsen prepared a list of grievances and submitted it to St. Pierre. 17 During November and early December, tension between St . Pierre and his crew continued unabated. According to Perez , St. Pierre was "really putting the pressure on" the laborers. To il- lustrate , Perez testified that work usually started at 7 o'clock in the morning , while it was still dark. Because St. Pierre failed to inform the laborers in advance of the nature of the job to be performed, they frequently were without essential tools, were obliged to wait in bitterly inclement weather until he decided what work was to be done. Then he would leave with one of the laborers to obtain the necessary tools . Perez also testified that St . Pierre "had it in for some guys," specifically, Madsen, Jul- sen, Blount, and Weser, threatening that he would fire them "the first chance he got." On one occa- sion , while St. Pierre was taking Perez to a jobsite where Julsen and Blount were working together, St. Pierre remarked to Perez that "he was going to fire the coon's ass as soon as he could," obviously refer- ring to Blount, a black man. 1. Perez' trip to Local 34 l's headquarters On December 4, 1968, Perez, who was on ex- cused leave in Anchorage because of his daughter's illness, called on Business Manager McFarland at the union hall. Gus Caterinichio , assistant business manager of the local, was also present. Perez asked to see the labor contract covering laborers at Amchitka. McFarland told him that he knew nothing about a contract-that as far as he knew all Local 341 had was an oral agreement with Local 302 for the dispatching of laborers. McFarland did, however, call both Local 302 and Universal in an effort to obtain a copy of the Local 302 contract, but without success. He thereupon told Perez that he was going to Seattle, and asked Perez to tell the laborers that he would send them a copy. Local 341 had previously been notified by the project steward (the employee of the Chris Berg Construction Company) of the difficulties he had encountered with St. Pierre. The Union had also been notified of Julsen's election as the laborers' union steward. During Perez' visit, the Union prepared an identification card, antedated November 26, 1968, signed by Caterinichio, certi- fying that Julsen was the duly authorized shop steward on the U.S.I. (Universal Services, Inc.) Project, Amchitka, and instructed Perez to deliver the card to Julsen. It is evident that the laborers ' complaints against St. Pierre were discussed on this occasion and it was decided that the Union would write him a letter notifying him of the complaints union members had lodged against him. At first, it was considered that Julsen would deliver the letter to St. Pierre in per- son. On reflection, McFarland counseled against this course for fear of possible reprisals against Jul- sen by Perez. It was decided that the letter should be sent by mail. Consequently, under date of December 7, McFarland addressed a letter to St. Pierre, in care of Universal, at Amchitka, notifying him of complaints which had been received from union members working under him at Amchitka. Noting that the "problem appears to stem from what they consider is abuse from a fellow Union Member," the letter concluded: These Members have expressed a desire to cite you before the Executive Board of the Union, however we have been able so far to stall off such drastic action and we suggest that you have a frank discussion with the crew and at- tempt to iron out any difficulties between you and the crew. 'T Julsen was officially designated by Local 341 as a union steward, and appear, were brought to Julsen by Peree from the union office in was presented with an identification card, dated November 26, 1969, and a Anchorage when he was there while on leave due to family illness union button bearing the legend "Shop Steward 341 " These, as will later UNIVERSAL SERVICES, INC. 387 Perez had originally intended to leave Anchorage for Amchitka on Friday. He did not, however, leave until the following Tuesday. On his arrival at Amchitka, he delivered the union steward identifi- cation card to Julsen. Sometime between December 12 and 14, while the laborers were wash- ing cars , St. Pierre produced the letter which he had meanwhile received from the Union, and asked Perez to read it. Perez said that he did not have his glasses, so St. Pierre read the letter aloud. When he had concluded, he remarked, "Now, you boys want to get tough, now I can really get tough. I allow you a break five minutes early to go home, but you will be on the job at the shop at five minutes to seven and you will leave the shop at 7:00. During work you will stay on your jobs until 5:30-I mean until 5:00." The men conceded that that was just what they were supposed to do. 2. The discharges of Julsen and Blount On the morning of December 22, St. Pierre dispatched the laborers to the dock to unload a barge which was scheduled to arrive . The men had reported for work about 6 :30 a.m ., and had completed the preliminary work required to tie up and secure the barge . The barge did not arrive for several hours , and as there was nothing more for the men to do in the meantime , and the weather was bitter cold, blustery , and rainy , St. Pierre told the men that they could go inside the shack on the dock . 18 While in the shack , the men lounged about talking, drinking coffee , relaxing , perhaps with their eyes closed , or even dozing . St. Pierre was in the shack for all but 5 or 10 minutes, when he left to check on the progress of the barge. While he was in the shack, he said nothing to any of the crew about their being asleep. About II o 'clock that morning , the barge ar- rived . The crew secured the barge , boarded, and began unloading . Unloading of the cargo, which normally requires 5 or 6 days , proceeded unevent- fully that day , and the men continued with the un- loading operation until 9 o 'clock that night. Next morning , St. Pierre discharged Blount and Julsen , claiming that they had been asleep in the shack the day before . St. Pierre took the men to the office and reported his action to Acting Project Manager Theodore L. ("Ted") Anderson .19 Ander- son attempted to intercede for the men, and proposed that they be given another chance. St. Pierre was adamant. "When I fire a man," he said, "that 's it." A shop foreman , who was also present, suggested that Blount be given a transfer, if St. Pierre would sign his timecard . St. Pierre refused. About 10 o'clock that morning , Julsen and " The shack consisted of a room, 10 or 15 feet by 20 feet, furnished with a table and two or three benches, and containing a heater, coffee urn and sundry refreshments The shack was also used for coffeebreaks '" Anderson, assistant project manager, was acting as project manager in Parker's absence Anderson terminated his employment on the project in May 1969 20 In terminating Blount, Respondent drew two checks to him, one to Blount, accompanied by St. Pierre, went to the dock to collect their personal gear, and related to the men what had occurred. The men continued working on the dock until 9 o'clock that night. Later that night, December 23, Neufeld and Perez encountered Ross Lofgren, Universal's office manager and backkeeper. Lofgren told them that the Company was having trouble with Blount because he was refusing to endorse his check to Reeves Airlines to cover his return transportation to Anchorage.20 Lofgren said that they would "kick [Blount] off the island whether it be on his own or in handcuffs, and advised Perez that he had `better watch [his] step, because [he would be] next."'21 Next morning, December 24, as the men were leaving to go to the barge, Perez asked St. Pierre whether he had anything personal against him because he didn't want to "wake up the following morning to find [himself] without a job." When St. Pierre said that he had nothing personal against him, Perez remarked that in that case he wanted St. Pierre to "clarify [that] at the office," because he had been told by someone in the office that he "had better watch [himself], because [he] was next." St. Pierre denied making any such remark to anyone, and accompanied Perez to Anderson's of- fice. Anderson asked Perez what his problem was. Perez replied that he would not work for "this man" under prevailing conditions, but hastened to add that he was willing to work for anybody, and do whatever he was told, even if it involved digging a "six by six" ditch, but that he was unwilling to work under the pressure St. Pierre had been exerting. Perez pleaded feverently with Anderson to "do something about Pete." Perez also testified that he was concerned over Julsen's discharge because it was his understanding that the Company could not fire a union steward without first having the Union remove him from the job, and Perez did not know whether Anderson realized that. Perez did not, however, mention this to Anderson at the time because, before he could do so, Anderson suggested that he take the day off to "cool- off." Perez did not work that day. When St. Pierre returned to the office to find out whether Perez was going to work, Anderson told him that Perez was taking the day off. Later, when Moir also protested against working under St. Pierre, Moir, too, was given the day off. 3. The concerted activities That night, after work, a group of the laborers22 met in Tomco's room to discuss the discharges of Blount and Julsen, and the grievances which they cover the cost of his air fare, the other, the balance of his wages R1 Lofgrcn did not testify and there was no showing that he was unavaila- ble The above findings are based on Perez' credible and uncontradicted testimony, corroborated substantially by Ncufeld 22 The group consisted of Perez, Ncufeld, Moir, Weser, Madsen, Fleischman, McPhee, a newly hired laborer, and Tomco 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intended to present to Anderson next day. The men agreed that Weser should act as their spokesman. Next morning, Christmas Day, the group met with Anderson in his office. Anderson asked if there was any objection to having St. Pierre attend the meeting. No objection was voiced, and Ander- son summoned St. Pierre by phone. When St. Pierre arrived, Anderson inquired whether there was any objection to his making a tape recording of the meeting. No objection being offered, Anderson recorded the meeting.23 Weser, as spokesmen for the group, told Ander- son that the men would not return to work unless the Company "straightened out" St. Pierre and reinstated Blount and Julsen.24 Although most of the men vented their complaints against St. Pierre, Perez was probably the most vocal. He repeated St. Pierre's remark, in which he had expressed his in- tention of discharging Blount, whom he charac- terized with a scurrilous epithet, at the earliest op- portunity. Perez protested that St. Pierre might be familiar with mining operations, but that he was inept at handling men. Although no specific de- mand for reinstatement of Blount and Julsen was made at this meeting, the subject having been sidetracked in the broader discussion of the criti- cism of St. Pierre, it is evident that the discharges were mentioned. The meeting concluded with An- derson's announcement that if it was a choice whether the laborers would quit or whether St. Pierre would be terminated, he would have to sup- port his foreman. None of these men worked that day, though it does not appear whether Christmas was observed as a legal holiday on the project. The next day, Anderson met with a group, con- sisting of Neufeld, Fleischman, Tomco, McPhee, and Madsen, solicited them to return to work, and told them that "everything would be forgotten," but that St. Pierre wanted the men to sign a state- ment agreeing that they would not press charges against him before the Executive Committee of Local 341. Anderson told the men that he wanted an answer by 1 p.m. so that he could order replace- ments from Anchorage. Perez, Moir, and Weser, who had been particularly vocal in their criticism of St. Pierre, were conspicuously absent from this group, and Neufeld asked Anderson why these men had not been invited to the meeting. Anderson told Neufeld that they were not needed and that he had no intention of inviting them. After discussing the matter, Neufeld and Fleischman decided that they were justified in their position and would decline Anderson's proposal. At 1 o'clock, they reported to Office Manager Lofgren that they were adhering to their position, and would not return to work until their grievances were satisfied. Soon afterward, they notified Anderson that unless the foreman was relieved of his job and Blount and Julsen were reinstated, the laborers would not return to work. About 4 o'clock that afternoon, Tomco, McPhee, and Madsen returned to work without being required to sign the statement which St. Pierre had requested. That night , Perez , Neufeld, Fleischman, Moir, and Weser met and decided to protest against management 's "unfair labor practices" in discharg- ing Blount and Julsen. The men prepared placards, announcing, "This management is unfair to us." The following morning the five laborers established a picket line at the unloading area of the dock. Em- ployees of other crafts, as well as the laborers who had decided to return to work, refused to cross the picket line. About 9:30 in the morning, Foreman St. Pierre went to the dock and asked the men whether they had a spokesman. Perez was selected, and St Pierre told him that Anderson wanted to see him in his of- fice. Fleischman accompanied Perez to Anderson's office. Anderson told Perez that he had been in communication with Business Agent McFarland and that McFarland wanted to talk to the men. Perez and Fleischman waited for the call to be completed via radiotelephone. When McFarland, who was at Universal's office in Anchorage, was on the line, Perez told him that the laborers were picketing to protest the discharge of Julsen and Blount. McFarland urged the men to return to work, advising them that they were wrong in resort- ing to that action, that Julsen and Blount had al- ready arrived at Anchorage, had filed grievances, that the matter, including the complaints against St. Pierre, would be handled through the grievance procedure, and that they would probably prevail.25 McFarland told Perez that they were violating union rules, and that if they persisted in their work 23 The original tape recording, together with an edited typewritten trans- cript (with omissions resulting from inaudible or unintelligible reproduc- tion) was introduced in evidence The contents of the recording do not differ materially from the testimony at the hearing regarding this meeting s" In the tape-recorded version, Weser says we had a meeting last night, and we decided this That they either get a new Labor foreman on the job, or get a new crew I know that's a hell of a thing to say, Pete zs On December 26, Blount filed a complaint against St Pierre and Universal with the Alaska State Commission for Human Rights, in Anchorage, Alaska, alleging racial discrimination in employment After in- vestigation and findings of reasonable cause, a conference was held, and a conciliation agreement was reached between the Commission and the Respondent on March 23, 1969, whereby, without conceding any unfair practices, Respondent, Universal Services, Inc , agreed to offer Blount im- mediate reinstatement, effective January 14, 1969, together with backpay and reimbursement for air transportation from Amchitka to Anchorage and return Business Agent Alewme of Local 302, however, testified that the grievances of both Blount and Julsen, as well as that involving St Pierre, were settled at the Union's office on January 6, 1969, at a meeting attended by Alewme, Nail, Londerville, and Parker (the delay having been occasioned by Parker's absence on vacation and the intervening New Year's holiday) Alewme emphatically denied that the Human Rights Com- mission, which was not represented at the meeting, was in anyway instru- mental in effecting the settlement , claiming that Local 302 was solely responsible for the resolution of the grievances Julsen and Blount were returned to Amchitka Island on January 14, 1969, and resumed their jobs St Pierre was terminated on or about the same date Julsen subsequently left the Company's employ on leave without pay, and eventually ter- minated his employment voluntarily some 3 months before the hearing in this proceeding Blount worked for Respondent until about 3 weeks before the hearing when he was terminated due to a reduction in force UNIVERSAL SERVICES, INC. 389 stoppage, they "were strictly on their own," and there was nothing he could do for them McFarland also offered to send Business Agent Caterinichio with Business Agent Nails, of the Operating En- gineers (who was also present in Universal's office at the time), to the project the following Monday, and told Perez that he had already arranged for their transportation.26 Perez replied that he could make no statement or take any action on his own responsibility but would be obliged to discuss the matter with the men. Perez returned to the dock and reported to the, pickets the substance of his conversation with Mc- Farland. The men decided to continue picketing, maintaining that the Company had refused to redress their grievances, and concluded that if they "let this thing slide," the Company would not do anything about it.' Later, the men went to Anderson's office and Anderson again spoke to McFarland by radiotelephone. Perez told Anderson that the men wanted to talk to McFarland privately. This was ar- ranged, and Perez spoke to McFarland while Neu- feld listened in on an extension. Assistant Business Agent Caterinichio was also listening in on an ex- tension on the other end. McFarland reiterated that the men were wrong to picket, and again urged them to return to work. Perez told McFarland that he wanted to file charges against St. Pierre and management. Taking umbrage at Perez' remark, Anderson, visibly excited, got on the phone and spoke to both McFarland and Caterinichio. Ander- son told the union representatives that this was the first time that mention had been made of bringing charges against him, and asked why it had not been mentioned before. Soon afterward, Ed Nails, the Local 302 business agent, instructed Operating Engineers Foreman La- Pier (not to be confused with St. Pierre) to cross the picket line because the picketing was "unlaw- ful." By 6 o'clock in the evening, December 27, ac- cording to Perez, the Company had prevailed upon nonstrikers to go back to work, and had enlisted clerks to help unload the barge. When the Operat- ing Engineers decided to ignore the picketing and cross the picket line, the striking laborers decided to discontinue the picket line. Previously, Anderson had advised the laborers that, in accordance with AEC policy, unauthorized persons were not permitted on the island, and any of them caught riding in a government vehicle would be prosecuted. About 5 o'clock, Office Manager Lofgren, accompanied by a state trooper, notified the men to be on the 10 o'clock plane next morning. At 8 or 9 o'clock next morning, the five laborers reported at the office, where Lofgren had prepared their paychecks and termination slips.27 The men refused to sign their termination slips, and Lofgren told them it was their privilege to do so. Two checks were issued to each of these employees, one, in the amount of $174.95, to cover the cost of air transportation by charter flight to Anchorage; the other, for the balance of their wages. Lofgren instructed the men to endorse the checks, covering their transportation to Reeves Airlines, and at first they refused. They finally endorsed the checks "under protest," deciding to leave the island peace- fully rather than in `handcuffs," as the Company had threatened. All five laborers were flown to Anchorage that day. Two or three days after their return to Anchorage, Perez and Neufeld went to the local newspaper office in an effort to persuade them to publish a story on what had occurred at Amchitka. They later went to Universal's office and were ushered in to see General Manager Londerville. Londerville irately took them to task for promoting the strike. Incensed because a newspaper reporter had called him the evening before to obtain "the other side of the story," Londerville told the men that he had told the reporter that if the newspaper printed anything, the Company would sue the paper. Londerville asked the men why they wanted "all of this publicity." They told him that they "wanted everyone to know about" it. In the course of the conversation, Londerville told the men they were "stupid"; that they knew nothing about legalities ; and that the men had "al- most caused them to lose their contract." Lon- derville asked the men why if they had any com- plaints they did not take them up with him instead of going to the press. They retoited, "Well, if we couldn't get anything clear over there, what makes you think we'll get something clear over here?" Londerville told them, "Well, you got to do this more or less business-like," and repeated his charges of stupidity and ignorance of legalities. Londerville asked them whether they were aware of the no-strike clause in the contract, although he did not produce a contract at the time, and whether they did not realize that all Government contracts contained a no-strike clause. When Neufeld replied, "Well, we don't have a contract," Lon- derville rejoined, "You didn't know it at the time." Analysis of the Issues; Contentions of the Parties; Conclusions The gravamen of the complaint is that Respon- dent discharged the five named employees, and thereafter refused to reinstate them, because they had engaged in protected concerted activities, i.e., 26 In the meantime , McFarland had called the Operating Engineers, notified them of the grievances of Blount and Julsen "to make sure that they didn 't sleep on it," and then called Universal 's General Manager Lon- derville to notify him about the grievances 21 The termination slips on forms headed, "Universal Services, Inc were all dated December 25, 1968, "0700 hour," and signed by "P Ross Lofgren "The reason for separation as stated on these slips was, "Personal Reasons-Refused to work for Foreman " The place provided on the form for "SIGNATURE OF EMPLOYEE," was left blank 427-835 0 - 74 - 26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a work stoppage or strike in protest against the discharge of Wash Blount, because of racial dis- crimination , and the discharge of Erick Julsen because of his activities as union steward of Local 341, as well as against the oppressive conduct of St. Pierre, their foreman. Respondent contends that it discharged these employees because they had engaged in an unauthorized or "wildcat" strike, in violation of the no-strike clause in the collective-bargaining agree- ment between Respondent and Local 302, authoriz- ing the discharge of employees engaging in such conduct.28 It can scarcely be denied that the employees who went on strike to protest the discharge of their two fellow employees and the oppressive conduct of their foreman, were engaging in protected con- certed activities. This conclusion, moreover, need not depend on a finding that the grievances were meritorious, though the evidence, already detailed, furnishes ample grounds to support such a finding.29 This is especially so where the employees engage in a strike , not only in protest of the discharge of fel- low employees, but also because of the employer's other unfair labor practices and harassing conduct prior to the work stoppage.30 Respondent contends, nevertheless, that with re- gard to the discharge of Blount, without conceding that a finding of racial discrimination is justified, there is no evidence that it, or for that matter St. Pierre, harbored any animus or hostility toward Negroes. The isolated statement , attributed by Perez to St. Pierre, uttered in the presence of two other laborers, "I am going to fire the coon' s ass as soon as I can," Respondent maintains , is insuffi- 2° Respondent also maintains that these employees voluntarily quit when they issued their " ultimatum " to Anderson on Christmas morning, that "either St Pierre goes or we go " The circumstances regarding their separation , and the record as a whole, leave little doubt that Respondent actually discharged these employees This conclusion is supported by the evidence in the proceedings for unemployment compensation before the Employment Security Division , Alaska Department of Labor, relating to the claims of Fleischman and other strikers The Chief Appeal Referee's Decision recites , in his findings of fact , that in completing the Notice to Employer dated January 11 , 1969, the employer gave as the reason for the claimant's separation " Fleischman and four other laborers pulled an unauthorized 'Wildcat' strike at Amchitka Island They were ordered to return to work by Mr McFarland, the head of the laborers union, but they refused and were terminated Fleischman was a new man in the union and had only been on this job eight days-hired 12/16/68 " In his conclusion, the referee states, "Both the claimant and the former employer agree that the claimant's separation was a discharge and not a voluntary quit," and held that, as the strike was a legitimate exercise of the right to redress a grievance , it could not be regarded as misconduct justifying denial of benefits While this determination is not, of course , controlling in this proceeding , it provides support for the conclusion reached independently here S° "Any discharge predicated in whole or in part on the effort of an em- ployee, representing himself and one or more other employees, to present such grievances , absent unusual circumstances not present here, would be a discharge for protected union and concerted activities and therefore a violation of the Act The merit or lack of merit in the grievance that would be presented, if permitted, is immaterial Mushroom Transportation Co , Inc , 142 NLRB 1150 [set aside, Mushroom Transportation Co , Inc v N L R B , 330 F 2d 686 (C A 3), on the ground that the discharged em- ployees had not been engaged in concerted activities], Salt River Valley Water Users' Association v N L R B , 206 F 2d 325, 328-329 (C A 9) Top Notch Manufacturing Company, Inc , 145 NLRB 429,432 cient to support a finding of racial discrimination. Respondent suggests that similar disdainful and disparaging remarks concerning various ethnic groups are commonplace, and that, in the absence of a showing of hostility or animosity toward such a group, are no manifestation of racially discrimina- tory motivation.31 Considering St. Pierre's behavior toward the laborers under his supervision; his resentment against them for complaining to the Union about his treatment of fellow members; his threat to retaliate because of their protest, and his demand that they withdraw their complaints; the threat to discharge Blount, coupled with the offen- sive epithet which can only be interpreted as hostility toward Blount as a member of the black race, and his action in subsequently carrying out this threat by discharging Blount on the pretext that he had been asleep on the job, the conclusion is fully warranted, and it is hereby found that in threatening Blount with discharge and thereafter carrying out that threat, St. Pierre was motivated by reasons of racial discrimination.32 It is further found that, by striking and picketing to protest such discrimination, the striking em- ployees were engaging in protected concerted ac- tivity within the meaning of the Act.33 Similarly, Respondent's contention that the com- plaint does not allege and the record does not establish that the Laborers went on strike to protest the discharge of Julsen because of his activities as shop steward, is not well-founded. Respondent as- serts that there is no evidence of union animus on the part of Respondent, or indeed, of St. Pierre, himself a member of the Charging Party's union. Nor, according to Respondent, is there any 30 Lee Cylinder Division of Golay & Co , Inc , 156 NLRB 1252, 1260, 1281, 1282 See also Tom Johnson, Inc , et al , 154 NLRB 1352, 1355 Brooks Foundry, Inc , 166 NLRB 581, where it was held that the discharge of employees who left work to concertedly protest the unlawful discharge of two other employees violated Sec 8(a)( I) and (3) of the Act 31 In its brief, Respondent posits the question , "What if St Pierre had said, 'I'm going to fire that Mick the first change I gets' or what if he had used the term 'Polack,' or 'Fat jap9"' [an obvious reference to an epithet attributed not long ago to a high public official, who later disavowed any in- tention to disparage members of that race ] This, of course, begs the question because if it were established that the discharge was motivated by discrimination based on race or national origin in any of its forms, it would be equally reprehensible and subject to legal redress The question, here, is whether the use of the word "coon," was so inherently denigrating as to justify an inference of racial discrimination To argue , as Respondent does in its brief, that a finding of racial discrimination would be warranted only if St Pierre had stated to Perez that he intended to discharge Blount "because he was a Negro" verges on sheer sophistry 3° In reaching this conclusion , the Trial Examiner has not relied upon the findings and conclusions of the Human Rights Commission or the com- promise agreement reached "Tanner Motor Livery, Lid , 148 NLRB 1402, N L R B v Tanner Motor Livery, Ltd , 349 F 2d I (C A 9), remanding the case to the Board, Tanner Motor Livery, Ltd , 166 NLRB 551, affirming original order of the Board Respondent's attempt to distinguish this case on the ground that the picket- ing in the Tanner case was conducted after working hours, and that the union representative there appeared to have demonstrated some hostility toward another employee who had protested the employer's failure to hire Negores, does not commend itself as an adequate reason for reaching a dif- ferent result Hollywood Brands, Inc , 169 NLRB 691, cited by Respondent, does not require a contrary holding UNIVERSAL SERVICES, INC. evidence that St. Pierre manifested any objection to Julsen's activities in his role as union steward, or that St. Pierre reacted adversely when presented by Julsen with the list of grievances. This contention flies in the face of the facts and the realities of the situation. The fact is that he took no action to redress the grievances, except possibly to curb his temper briefly only toy lapse into his former ways. The fact that St. Pierre advised the laborers to elect their own union steward, and manifested no opposi- tion to the selection of Julsen, does not absolve him of responsiblity for misconduct, both before and after Julsen's election, toward the employees. It is obvious that St. Pierre resented the laborers' protest to the Union which could have resulted in his being cited before Local 341's executive board. St. Pierre's outbrust at these employees, on receiv- ing the Union's letter, that if the men wanted to "get tough," he could really "get tough," and his later demand that they withdraw their complaints against him, leave no doubt of his disposition towards his men. It requires little imagination to perceive that Julsen as union steward became the focus of St. Pierre's opposition to the concerted ac- tivities of the men who worked under him. It is not surprising, therefore, that Julsen was prominent among the laborers whom St. Pierre "had it in for." The impact of the other employees of the discharge of their union steward on some pretext can hardly be exaggerated . The pretextuous nature of both discharges furnishes additional support for the con- clusion that both were discriminatorily motivated. It is, therefore, found that the five named em- ployees who went on strike on December 27, 1968, and picketed the dock, for the purposes already detailed, were engaged in protected concerted ac- tivities guaranteed under the Act.34 The General Counsel contends quite simply that there was no collective-bargaining agreement in force and effect at the time of the strike affecting the laborers at the Amchitka project. There were, of course, the collective-bargaining agreement and the supplements between Respondent and Local 302. Any effort, however, to extend coverage under this contract to laborers on the Amchitka project, the General Counsel argues, at a time when Respondent did not have a representative comple- ment of laborers, would amount to premature recognition, rendering the contract of no force and effect as to those employees.35 Respondent con- " As the General Counsel maintains, it is unnecessary to a decision in this case to determine whether the striking employees were engaged in an unfair labor practice strike, although the record amply justifies such a find- ing, since the real issue is whether Respondent was justified in discharging the strikers under the no-strike provisions of the contract with Local 302 Cf Mastro Plastics Corporation v N L R B , 350 U S 270, Brooks Foundry, Inc supra , Ford Motor Company, 131 NLRB 1462 ' Citing Pay Less Drug Stores, 127 NLRB 160, 162, Raymond Construc- tion Company of Puerto Rico, 126 NLRB 268, Atomic Power Equipment De- partment ofGeneral Electric Company, 118 NLRB 456, 459 '" These employees had presumably been hired pursuant to the original contract with Local 302 " Respondent does not specifically contend, nor does the record support a finding, that the laborers dispatched by Local 241 and hired by Respon- 391 cedes that, as of February 15, 1967, the date it ex- ecuted the supplement covering the Amchitka pro- ject, it had in its employ only three men performing M & 0 work, all of whom had been transferred from the White Alice project.36 Considering that at the time of the discharge of the strikers there were approximately 12 or 13 laborers employed at the Amchitka project, it is evident that Respondent did not have a representative complement of laborers in its employ when it extended the agreement to cover the Amchitka project.37 The Board has held that a no-strike provision contained in a contract prematurely entered into, or entered into with an assisted union, affords no defense to a discharge of strikers.311 Respondent's position, therefore, that Local 341, in effect, ap- proved, adopted, or ratified the Local 302 contract ("recognized the applicability of [that contract] to the maintenance and operation work at Amchit- ka") so as to bind Local 341's members is untena- ble. Moreover, the record does not warrant the conclusion that Local 341 actually did so. Although members may have been informed that as a result of arrangements between representatives of both locals with Respondent, laborers would be dispatched by Local 341, directly or by first being dispatched to Local 302, and hired by Respondent at wage scales, including fringe benefits, hours of work, and other working conditions established under the Local 302 contract, the record clearly establishes that no copy of the contract was ever submitted to Local 341 or its members, despite requests for the production of a copy of that con- tract. When members of Local 341 complained at a union meeting that they were not being paid the higher wage rates while performing construction work, as provided under the Associated General Contractors contract, they were merely advised that they were working under the Local 302 con- tract.39 No mention was made of the existence of a no-strike provision or grievance procedure. When employees raised the question of obtaining their own contract, McFarland stated that the Union was anxious to get a contract but wanted to get as many laborers on the job as possible so that it could en- deavor to obtain a contract when the Local 302 contract expired. This is hardly consistent with the contention that Local 341 had adopted the Local 302 contract in its entirety. It should be noted that McFarland himself did not attend the April 10 dent to work at the Amchitka project, constituted an accretion to the original unit as defined in the basic collective-bargaining agreement J8 See Summers Fertilizer Company, Inc, 117 NLRB 243, 245, H N Thayer Company, 99 NLRB 1122, 1131, enfd and remanded in part on other grounds 213 F 2d 748 (C A I) Cf Kearney & Trecler Corporation, 113 NLRB 1145, 1 151 "Minutes of the general meeting of Local 341, the only minutes in ex- istence dealing with the subject of employment of laborers on the Amchit- ka project, dislcose merely that laborers would be dispatched through the Operating Engineers as utility laborers at a wage rate of $4 38 an hour, for a guaranteed 54-hour week , with 18 days ' paid vacation after working 50 weeks There was no showing , nor is it contended, that any action was taken at this meeting to approve, adopt , or ratify the Local 302 contract 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, and there was no showing that any of the five striking employees were present. Nor does the evidence that some laborers who were dispatched to the Amchitka project were notified by the Local 341 dispatcher that they were working "under the Local 302 contract, or that this was discussed among the laborers after they began working, establish that they were aware that they were bound by all the terms and conditions of that con- tract. The testimony that some of the laborers knew they were working on a "union job," and that one of them had never worked under a contract which did not include a no-strike provision is of no proba- tive value to establish that the laborers knew of the existence of the no-strike provision, or, more im- portantly, agreed to be bound by it, or to waive the right to strike. Such a waiver can scarcely be in- ferred on the basis of such scant testimony, and can certainly not serve as justification for discharging the striking employees.40 Upon the basis of the foregoing, and upon the en- tire record, it is found that Local 341 or the laborers did not agree to be bound, and that they were not as a matter of law bound, by any of the terms or conditions of employment of the Local 302 contract, except as to wage scales, including fringe benefits, hours of work, or conditions of em- ployment bearing directly on these items. It follows that they were not bound to observe the grievance procedure provided under the contract. The fact that they declined to accede to the recommenda- tion of their minority representative to resort to the grievance procedure which was available under the contract, did not deprive them of their right to strike. Moreover, the laborers who went on strike were striking, not in derogation of the position of Local 341, which, it should be noted, was their minority representative, but in furtherance of its purposes to redress lawful grievances supported by their union.41 The fact that the grievances were later satisfactorily resolved does not detract from the conclusion that the striking employees were en- titled to exercise their rights to seek redress of their grievances by their concerted activities. Respondent contends, in support of its action in removing the striking employees from the island upon their termination, that having withheld their services from their employer, these employees were no longer entitled to receive wages. Since board and lodging was included as part of their wages, Respondent asserts that by permitting the strikers to remain on the island after they had gone on strike, it would be confronted with the choice of subsidizing the strike (by furnishing them with 0 It may be noted that the union -security provisions of the Local 302 contract were not applied or enforced as to the laborers or members of other crafts This lends further support to the conclusion that the contract was not accepted in its entirety by members of Local 341 "The holding in N L R B v Washington Aluminum Co , 370 U S 9, does not require a different result Cf Lee A Consaul Co Inc , et al , 175 NLRB547 board and lodging while they remained on the island, because the only such facilities were those supplied by Respondent), or transporting them back to Amchitka. Additionally, Respondent con- tends that AEC policies, prohibiting the presence of unauthorized personnel, compelled the removal of these employees. As to the first contention, whatever may be the case as regards economic strikers, the fact is that these strikers were not engaged in an economic strike but rather in a strike protesting the dis- criminatory treatment of employees and the objec- tionable conduct of their foreman, in short, an un- fair labor practice strike. Under these circum- stances, they could not be deprived of a basic por- tion of their wages, namely, board and lodging. As to the second contention, the mere fact that these employees were on strike did not automatically render them "unauthorized personnel." The situa- tion of which Respondent complains was inherent in the nature of the operation, and it must be as- sumed , when it hired its work force, that it was aware of the possible consequences in this regard which might arise in the event of a possible strike.42 It is therefore found, on the basis of the foregoing and upon the entire record, that Respondent discharged each of the five named employees on December 28, 1968, because they had engaged in protected, concerted activities. It is further found that the striking employees were not bound by the no-strike provisions of the collective-bargaining agreement with Local 302, prohibiting them from striking, and that they did not otherwise waive the right to strike. Finally, although the complaint alleges, and the General Counsel contends, that by discharging the five named employees and refusing to reinstate them because of their protected concerted activity, and membership in or activities on behalf of the Union (Local 341), Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(3) of the Act. The evidence fails to establish union animus or hostility, or that the discharge of the striking employees discouraged or reasonably tended to discourage membership in the Union. The discharge of striking employees for engaging in protected concerted activity, however, constitutes a violation of Section 8(a)(1), and it is found that by such conduct, Respondent has engaged in unfair labor practices within the meaning of that section. Whether Respondent's action be deemed a viola- tion of Section 8(a)(3) or Section 8(a)(I ), the remedy would in either event be the same. 42 Respondent's contention , raised in its brief, that the Local 302 con- tract is immune from attack by virtue of Sec 10(b) of the Act (inasmuch as the original charge was filed on January 15, 1969, more than 6 months after the execution of the supplement to the agreement , on February I5, 1967), is irrelevant No attempt has been made in this proceeding to attack the validity of the contract or supplement The issue here is whether the no- strike provision of that contract can be invoked against the striking em- ployees UNIVERSAL SERVICES, INC. 393 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent discharged Wilson D. Neufeld, Alex Perez, Clarence Moir, Harold Weser, and Anthony Fleischman, and thereafter failed to reinstate said employees, because they had engaged in protected, concerted activities, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. It will therefore be recommended that Respondent offer said employees immediate and full reinstatement to their former or substantially equivalent positions, if available,43 without prejudice to their seniority and other rights and privileges, and if such positions are no longer in existence, to place them on a preferential hiring list, if and when such positions become available, and make said employees whole for any loss of earnings they may have suffered by reason of the discrimination against them, by pay- ment to each of them of the wages, including the reasonable value of board and lodgings, which they would have earned but for such discrimination, together with reimbursement for expenses of air transportation from Amchitka to Anchorage, Alaska, as well as interest thereon, as provided in Isis Plumbing & Heating Company, 138 NLRB 716. Loss of pay shall be computed in accordance with the formula and method prescribed in F. W. Wool- worth Company, 90 NLRB 289.44 CONCLUSIONS OF LAW 1. Universal Services, Inc., a Texas corporation, B-E-C-K Constructors and Raber Kief, Inc., a joint venture of which Universal Services, Inc., is the sponsoring joint venturer are, and at all times material herein have been, an employer within the meaning of Section 2(2) and is, and has been, en- 41 In accordance with the Board's interpretation , this is intended to mean "former position wherever possible, but if such position is no longer in ex- istence, then to a substantially equivalent position " Chase National Bank, 65 NLRB 827 44 It appears that, for reasons not disclosed by the record, Respondent ceased to operate as subcontractor of Holmes and Narver, Inc in furnish- ing maintenance and operation services at the Amchitka project , on about July 4, 1969 This was not further explored at the hearing , nor was it sug- gested that that date operate as the cutoff date for any reimbursement of wages The record does not afford a basis for making more specific recom- mendations In view of the general nature of Universal's operations, it is probable that it can offer the discharged employees substantially equivalent employment within the geographical area in which it conducts its business This issue can best be determined in compliance proceedings If substantially equivalent employment is available, backpay shall be com- puted in the manner provided in Arum Transportation System, 166 NLRB 795 (See also Sea-Way Distributing, Inc, 143 NLRB 460, LTV Elec- gaged in commerce within the meaning of the Act, and the jurisdictional standards of the Board. 2. Construction and General Laborers' Union Local No. 341, AFL-CIO, and International Union of Operating Engineers, Local No . 302 are, and at all times material herein have been , labor organiza- tions within the meaning of Section 2(5) of the Act 3. By discharging, and thereafter failing and refusing to reinstate the five individuals named above because they had engaged in protected con- certed activities, Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed in Section 7, and has engaged in unfair labor practices within the meaning of Sec- tion 8 ( a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices 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, it is hereby recommended that Universal Services, Inc., B-E-C-K Constructors and Raber Kief, Inc., a joint venture, of which Universal Services, Inc., is the sponsoring venturer, their officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining , or otherwise coercing employees in the exercise of rights guaran- teed in Section 7 of the Act, by discharging or otherwise discriminating in regard to the hire, tenure of employment, or any term or condition of employment of its employees for engaging in pro- tected, concerted activities. (b) In any other manner interfering with, restraining , or coercing employees in the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, 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 agree- ment requiring membership in the labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act.45 trosystems, 169 NLRB 532 ) if no substantially equivalent employment is available, Respondent shall place said employees upon a preferential hiring list, in accordance with the Board's customary policy (See Hoffman Beverage Company, et al , 163 NLRB 980 ) " It has been generally held that the discharge of employees for engaging in protected, concerted activity threatens the most basic rights guaranteed employees under the Act , and if it is found that there is likelihood of a con- tinuance of such unfair labor practices in the future, warrants a broad cease-and-desist order prohibiting an employer from interfering with, restraining, and coercing employees in any other manner N L R B v Entwistle Manufacturing Co , 120 F 2d 532 (C A 4), May Department Stores v N L R B, 326 U S 376, Bethlem Steel Company v N L R B, 120 F 2d 641 (C A D C ) Despite the absence of any other unfair labor prac- tices, and Respondent 's mistaken belief that it was justified in discharging these employees for alleged violation of the no-strike provision in the Local 302 contract, it is recommended , in order to effectuate the policies of the Act, that a broad cease-and-desist order be issued against Respondent 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action , which it APPENDIX is found will effectuate the policies of the Act: (a) Offer Wilson D. Neufeld, Alex Perez, Clarence Moir, Harold Weser, and Anthony Fleischman immediate and full reinstatement to their former or substantially equivalent positions, if available, without prejudice to their seniority or other rights and privileges, as provided in the sec- tion entitled "The Remedy," and make each of them whole in the manner set forth in said section. (b) Notify the above-named employees, if presently 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, as amended, after discharge from the Armed Forces. (c) Preserve until compliance with any order for reinstatement for backpay made by the Board and, upon request, make available to said Board and its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records required to analyze and determine the amount of backpay due. (d) Post at its headquarters, if any, at Amchitka, Alaska, and at its offices or headquarters at Anchorage, Alaska, on bulletin boards and all other places where notices to employees are usually posted, and mail copies of this notice to each of the laborers, including the five named as discriminatees in this proceeding, employed on the Amchitka pro- ject at the time of the strike, at their last known ad- dress by registered or certified mail, copies of the attached notice marked "Appendix."46 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent or its authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.41 IT IS FURTHER RECOMMENDED that , unless , before 20 days from the date of receipt of this decision, Respondent notify said Regional Director that it will comply with the foregoing recommendations, the Board issue an order requiring Respondent to take the action aforesaid. 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act, by discharging or otherwise discriminating in re- gard to the hire, tenure of employment, or any term or condition of employment of our em- ployees for engaging in protected, concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to self-organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose 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 requir- ing membership in a labor organization as a condition of employment, in conformity with Section 8(a)(3) of the Act. WE WILL offer Wilson D. Neufeld, Alex Perez, Clarence Moir, Harold Weser, and Anthony Fleischman immediate and full rein- statement to their former or substantially equivalent positions, if available, without prejudice to their seniority or other rights and privileges, as provided in the section entitled "The Remedy," and make each of them whole in the manner set forth in said section. All our employees are free to become or remain or to refrain from becoming or remaining members of the above named or any other labor organiza- tion. UNIVERSAL SERVICES, INC. B-E-C-K CONSTRUCTORS AND RABER KIEF, INC., A JOINT VENTURE, UNIVERSAL SERVICES, INC., SPONSORING JOINT VENTURER (Employer) Dated By (Representative ) (Title) tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is 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 Respondent has taken to comply herewith " UNIVERSAL SERVICES, INC. 395 We will notify immediately the above-named in- dividuals , if presently serving in the Armed Forces of the United States , of their right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Republic Building , 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-4532.