Morrison-Knudsen Co, Inc.

56 DECISIONS OF NATIONAL LABOR RELATIONS BORAD Morrison-Knudsen Company, Inc. and Pile Drivers' Local Union No. 2382 , affiliated with United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO. Case 19-CA-3933 September 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Or June 25, 1968, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel The Board has reviewed the rulings made by the Trial Examiner 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 brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Morrison-Knudsen Com- pany, Inc., Boise, Idaho, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 As the record, exceptions and brief, in our opinion , adequately present the issues and the positions of the parties , the Respondent's request for oral argument is hereby denied 2 In agreeing with the Trial Examiner's conclusion that the dis- charged employees were involved in activities protected by the Act, by virtue of the permission received from Foreman Clary to hold their meeting, we find it unnecessary to pass upon the Trial Examiner's alternative assumptions regarding the legal consequences of the conduct here complained of if the meeting were held to be a strike or work stoppage TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT This proceeding under the National Labor Relations Act as amended (29 U.S.C. Sec. 151 et seq., "Act"), on complaint of General Counsel of the National Labor Relations Board issued by its 19th Regional Director on March 27, 1968 (as amended on May' 101), upon charge filed by the above Union on February 12, was heard before me in Seattle, Washington, on May 16, with all parties represented and participating through- out and given full opportunity to present evidence, conten- tions, proposed findings and conclusions, and briefs Briefs received subsequent to the hearing have been considered, together with the record2 made at the hearing Upon the basis thereof and my observation of the witnesses, I make the following FINDINGS AND CONCLUSIONS II PARTIES , JURISDICTION At all material times, Respondent has been and is a Delaware corporation with principal office and place of business in Boise, Idaho, whence it engages in heavy building and construction throughout the United States as well as elsewhere. During the calendar or Respondent's fiscal year immediately preceding issuance of the complaint, in the course and conduct of that business Respondent purchased goods and supplies valued in excess of $50,000 directly in interstate commerce from suppliers outside of the State of Washington, for use at Respondent's Joso Bridge, Washington, construction project jobsite, the locale of Respondent's operation and events here described. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, that at those times the above Union has been and is a labor organization within the meaning of Section 2(5) of the Act, and that assertion of jurisdiction herein is proper. III THE ALLEGED UNFAIR LABOR PRACTICES A Issue The ultimate issue presented is whether Respondent vio- lated Section 8(a)(1) and (3) of the Act by terminating the employment of 16 of its employees on January 30, and refusing thereafter to reinstate or reemploy any of them, i All dates here are in 1968. 2 Hearing transcript as corrected by Trial Examiner 's letter order of May 31 and as set forth in attached Appendix B [omitted from publication l 173 NLRB No. 12 MORRISON-KNUDSEN CO 57 because they engaged in concerted activities protected by the Act. B. Facts as Found Since Respondent offered no witnesses, the facts as credibly testified to by General Counsel's witnesses and here recounted and found, stand uncontradicted upon the record In January, Respondent was engaged in heavy construction operations (its Job 2393) on a railroad span known as the Joso Bridge, near Lions Ferry on the Snake River in Idaho.3 Respondent's operations there consisted of rebuilding or reenforcing the existing concrete and steel span, involving utilization of four crafts-piledrivers, ironworkers, operating engineers, and teamsters Piledrivers, who poured concrete around existing footings from below the subsurface riverbed to about 80 feet above the surface worked at levels from 20 feet subsurface on up, including ground or river level. Some piledrivers commuted daily between the jobsite and homes 50 or more miles distant, while others rented cabins nearby and confined their commuting to weekends. Respondent's pile- drivers were organized as members of the Charging Party Union Foreman of the piledrivers on the Joso Bridge Project was W. E Clary, with 16-18 piledrivers under him Hired as Job Foreman by Respondent's Job or Project Superintendent Dawsen (Dawson) around July of the preceding year (1967), Clary's duties were to oversee the men and the job. Although he was one of 3 foremen on the job,4 Clary, who-unlike the other foremen-always remained on the ground, normally issued instructions of the day to the other foremen, upon the basis of directions received by him from Project Superinten- dent Dawsen (his immediate supervisor). Clary also assigned piledrivers to specific jobs and locations, kept track of their time, and disciplined and discharged them. Respondent's Joso Bridge Project had been encountering various safety, as well as others industrial relations, problems. Prominent if not principal among the safety problems in late January was a defective handbrake on a tugger, creating a substantial hazard to the lives of the piledrivers.6 A tugger is an air-powered lifting device consisting of a reel or drum, around which there is cable, to the end of which is attached an object or objects lifted or lowered as the cable, feeding through an overhead pulley, unwinds or winds on the rotated reel or drum. The tugger was employed to raise heavy equipment and supplies (including lumber and three to five simultaneously lifted 20-foot long 'h-inch steel "rebars" utilized as cores within poured concrete forms) to heights of 40-50 feet The safety problem involving the tugger was created by an inoperative or defective handbrake. The hand- brake is supposed to control the stopping and starting of the movement of the cable and its supported load in mid-air; if it fails, a potentially extremely serious hazard results to persons below As described by witness McCarthy, "There are people in the general area where you are doing this hoisting and not only people, but the job itself, that if the load came down, it would just wipe out everything in the general area." In place of the inoperative or defective handbrake there had been impro- vised a long iron bar, which was manipulated manually by one man while another operated the tugger itself As credibly de- scribed in the uncontroverted testimony of piledriver Cranor, although mid-air loads had been efficiently halted and held in mid-air by the tugger's regular handbrake, with the improvised bar loads "would drop anywhere from one to three feet. Some- times it dropped further and sometimes it stopped right where they applied the brake " A closely related complaint of pile- drivers was that Project Superintendent Dawsen would seem- ingly take them to task or fault them for not working or remaining underneath loads lifted by this tugger, notwith- standing their having been expressly warned by the tugger operator to stay clear of overhead loads. Union Business Representative McCarthy, who serviced and visited the Joso Bridge Project every week or two, had been receiving numerous complaints from employees concerning safety and related problems there At a December 19 (1967) meeting with Company representatives, including Project Superintendent Dawsen and Foreman Clary, "things were patched up pretty well and it was agreed that they [i.e., the Company] would change their manner of operation and they would go along with the union regulations." However, in less than a week thereafter McCarthy again began receiving complaints, which continued regularly, necessitating a further meeting with management at the jobsite on January 19, when he and the shop steward again discussed the safety (as well as supervision) problems with the Respondent's Project Manager Fullbright and his foremen Notwithstanding this, on January 27 and 28 McCarthy was again notified by the shop steward that "The same problem was persisting on the job and the men were real perturbed about it and they would like to have me [McCarthy] come down there to straighten it out ... at this time it was safety . . they had a tugger on the job that was not working mechanically." On January 29, employees Cranor and Harter (according to their essentially mutually corrobora- tive, uncontradicted, credited testimony), while briefly standing clear of an overhead load of steel being raised by the tugger, were approached by Project Superintendent Dawsen, who "started cussing a little bit for standing there while we were out of the way of the steel." Harter complained to the steward for being "chewed" by Dawsen for following standing safety operating instructions. Since the safety problems, prominently the hazards pre- sented by the improvised "brake" on the defective tugger and Project Superintendent Dawsen's seeming expectation that piledrivers should continue to work underneath heavy steel loads held in mid-air by this improvised device, had not been resolved by January 30, on that day (Tuesday) Union Business 3 The Joso Bridge is about 10 miles north of Starbuck , Washington, and around V2 mile below Lions Ferry , Idaho, which is approximately 112 miles southerly of Spokane , Washington 4 Foremen receive 40¢ more per hour than rank-and-file piledrivers. 5 Project Superintendent Dawsen's issuing of direct instructions to piledrivers , apparently bypassing foremen, in the face of contrary instructions or practices , seems to have been a problem to the piledrivers , as instanced below. 6 There were also other unresolved safety problems . For example, according to the testimony of Foreman Clary, supervisory instructions to discontinue loading scaffolds with bull hoses and headers when the tops of forms were unfinished, had not been carried out because "we hadn 't had another set of forms up." As another example (furnished by piledriver Cranor), concrete was being poured from a bucket 30 feet above piledrivers , into forms (about 30 feet long and 15 feet high) before reinforcing the forms with snapties . Foreman Clary conceded that safety complaints were voiced regularly at the Company 's Monday noon safety meetings attended by piledrivers and other employees 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representative McCarthy journeyed 75 miles from his office in Lewiston, Idaho, to the jobsite, where he was unable to locate or meet with higher managerial or supervisory personnel. Together with the shop steward, he therefore sought out Foreman Clary and requested permission to hold a brief safety meeting' in the jobsite dryshack Foreman Clary-Respond- ent's only supervisor on hand at the time-acceded to this request but made it clear to the steward that the men would be docked in pay for time spent at the meeting 8 It was then a few minutes past 12.30, the piledrivers having just returned from lunch (12-12 30), during which it had been unfeasible to discuss or complete discussion of these problems because of the absence of quiet or privacy in the general lunchroom shared with all others. Permission thus having been obtained, the piledrivers discussed these safety problems and com- plaints-namely, the hazardously defective tugger and the apparent management expectation that they work under heavy mid-air loads being elevated by the tugger-with their steward and Union business representative in the privacy of the dryshack for 15-20 minutes, from about 12 35 or so to 12.55. Meanwhile, Foreman Clary had succeeded in locating and getting a message to Project Superintendent Dawsen about what was going on. When the piledrivers' brief meeting was over, their Union business representative (McCarthy) having reassured them that he would take these matters up with Dawsen and management, and the men were about to leave the dryshack, suddenly Project Superintendent Dawsen burst in In Foreman Clary's words, Dawsen "came barging through the door and tore the latch off of it " Dawsen demanded to know "what was going on " McCarthy's response that "There seems to be a problem" met with Dawsen's rejoinder that he "could settle all problems there," whereupon he discharged all of the piledrivers (i e., all 16, the entire crew), as well as Foreman Clary, then and there without further ado Uncontroverted testimony of Foreman Clary, as well as of piledrivers, establishes that there was piledriver work on hand to be done, and that the piledrivers were about to return to that work when Project Superintendent Dawsen summarily discharged them as they had completed their brief meeting. Uncontroverted testimony of Clary, as well as of piledrivers, further establishes that the nature and status of their work was such that the brief time expended in the meeting did not "interfere with or impede or hold up the work on the bridge or any work that was being done " No evidence was adduced by Respondent to the contrary. When shortly after the foregoing episode, McCarthy ap- proached Dawsen in his trailer to attempt to get him "to relent a little bit and reconsider and go over this and talk it out a little bit," Dawsen directed McCarthy to "get the hell off the job, that he [Dawsen] would kill me [McCarthy] " When Dawsen reiterated this, McCarthy left and sought out Respond- ent's Project Manager Fullbnght, who stood by Dawsen's 7 Foreman Clary testified that the shop steward described the problems about which the piledrivers "wanted to know if they could have a short meeting where they could all get together " as "com- plaints . due to safety That is what the shop steward asked me to have the meeting for " 8 According to Foreman Clary, January 30 was the first time he had docked employees for holding a meeting He had "several times" prior to that date authorized employees to take time off during the workday without docking their pay -"as long as it wouldn 't take much longer than five or ten minutes it was very common to do this on the job " Union Business Representative McCarthy's uncontroverted testimony authority to "fire the people" since he was "running the job . . . and that they would get all new men on the job " While waiting to talk further with Fullbright, McCarthy attempted to make a telephone call from a phone booth, Dawsen, coming on the scene, proceeded to revile and threaten McCarthy and attempt to drag him from the phone booth, Fullbright thereupon induced Dawsen to desist and depart with him On the following day, January 31, Respondent called in to the Union hiring hall for piledrivers to continue the job. Although the Union thereupon dispatched piledrivers to the job, Respondent refused to permit any of those whom it had fired on January 30 to go back to work.' C. Respondent's Contentions, Discussion and Resolutions As has been stated, Respondent offered no witnesses. It has, however, raised a number of contentions which will be examined. 1. Nature of Piledrivers' January 30 activity resulting in their discharge Since it is undisputed that the reason for Respondent's discharge of its piledriver crew on January 30 was their activity on that day, it is necessary to ascertain whether that activity was protected by the Act from employer reprisal Respondent contends that since the described activities constituted a strike, walkout or slowdown, its resulting discharge of the employees was unlawful To begin with, this was no strike, walkout or slowdown The piledrivers neither struck nor walked out, and the uncontradicted evidence establishes that the brief interruption of their normal work was without impact upon the job The reason for the meeting-concern over their lives because of dangers on the job-will be recalled. Section 502 of the Act expressly provides: " . . . nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act " The uncontradicted evidence establishes, and I find, that the described meeting of piledrivers was held in good faith for the sole purpose of attempting to remedy abnormally danger- ous conditions for work at their place of employment, namely, the described defective tugger braking mechanism and Re- spondent's Project Superintendent Dawsen's apparent expecta- tion that the piledrivers should work under loads suspended hazardously in mid-air above them. Furthermore, the pile- drivers had obtained express advance permission from manage- ment to hold the brief meeting However, even if the piledrivers had struck or walked out, they could not lawfully have been discharged by Respondent for engaging in concerted activities protected under the Act also establishes that there were occasions prior to January 30 when, with the knowledge and sometimes participation of management, piledrivers discussed work problems with him during workhours 9 Likewise employee Harter, a carpenter who emplaced scaffolding whalers and snapties and did some piledriving , and who was among those discharged on January 30 as described, was redispatched to the job by his union - Pasco Carpenters Local 1849, not the Charging Party here-on January 31 to report on February 1 When he reported to Respondent's office trailer on the morning of February 1, Respondent refused to rehire him, displaying to him a termination notice with his name and the words "no rehire" on it MORRISON-KNUDSEN CO. 59 The piledrivers met on January 30 to discuss safety matters potentially involving their lives-matters of extremely substan- tial concern to them and of a nature justifiably viewable as brooking no further delay. Washington State Department of Labor Safety Standards for Construction Work (Sec. 1-402),'o compliance with which is explicitly called for by the parties' collective agreement (GC Exh. 2, p. 17, Art. VIII, Sec. 1(a)), requires that hoisting apparatus be equipped with "brakes capable of sustaining 150 per cent of rated load for stopping and sustaining the maximum load in any position." The basic charter of employee rights under the Act (Section 7) insures to employees the "right to .... engage in . con- certed activities for .... mutual aid or protection ...." It would appear to be beyond argument that when employees meet to protect their lives against work hazards they "engage in ... concerted activities for .... mutual aid or protec- tion . . " In N L R B. v. Washington Aluminum Company, 370 U.S 9, employees were discharged for walking out of a shop which they regarded as too cold for work. In reversing the Fourth Circuit Court of Appeals, the Supreme Court held that the Board's order requiring reinstatement of the dis- charged employees should have been enforced since the employees had engaged in concerted activities protected by Section 7 of the Act in walking off the job for the indicated reason, even though in contravention of a company require- ment of permission to leave the job, also in the absence of a specific demand upon the employer to remedy the condition, and notwithstanding the further fact that the employer was making every effort to repair the situation Speaking for the Court, Mr. Justice Black stated, 370 U.S at 17 "Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as the testimony and Board findings showed them to be in this case are unquestionably activities to correct conditions which modern labor-management legislation treats as too bad to have to be tolerated in a humane and civilized society like ours "'' Since, unlike the instant case, Washington Aluminum involved an actual walkout and, further unlike the instant case, involved employee dissatisfaction for a reason seemingly far less substantial than those here, the instant case may be viewed as a fortiori controlled by the Supreme Court's teaching in Wash- ington Aluminum. In the circumstances, inasmuch as Respond- ent's piledrivers could not lawfully have been discharged had they gone out on strike, it was unlawful to discharge them for taking the lesser action of merely meeting as they did here. NL R B v Globe Wireless, Ltd., 193 F.2d 748, 750 (C.A 9) and cases cited, Cusano v N.L R.B , 190 F.2d 898, 902 (C.A. 3) and cases cited. As in NL.R B v. Kennametal, Inc , 182 F.2d 817,819 (C.A. 3), "what the workmen did was more reasonable and less productive of loss to all concerned than an outright strike." And, as stated in N.L R B v. J I Case Co., 198 F 2d 919, 922 (C A. 8), cert. denied 345 U.S. 917, quoting Kennametal, "The language of the Act does not require and its purposes would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike." Nor can I agree with Respondent's contention that the mere inclusion in the collective agreement of a no-strike and gnevance-arbitration provision restricts the employees under all circumstances to exclusive resort thereto, in effect bypass- ing the Act and avoiding the necessity for compliance therewith, as well as requiring employees to continue to work under the most intolerable hazards An agreement between employer and employee cannot be so construed as a waiver of employees' rights, nor, as hereafter shown, does it oust the Board of its statutory jurisdiction nor save it from its assigned public functions. Cf Act, Sec 502, id, passim, N.L R B. v. Interboro Contractors, Inc , 388 F.2d 495, 501 (C.A. 2), NL R B. v. Huttig Sash & Door Co., 377 F.2d 964, 970 (C.A. 8), International Union of Electrical, etc. Workers, Local 613 (Erie Technological Products, Inc) v. N.L R B., 328 F 2d 723, 726-727 (C.A.3). 2. Foreman Clary's authority The uncontradicted credible evidence clearly establishes the supervisory status of Respondent's Foreman Clary, from whom permission was sought and obtained to hold the brief safety meeting on January 30 at the employees' own expense Clary not only fired, disciplined, assigned work to, and otherwise responsibly directed Respondent's piledrivers, but he had even regularly given permission to the piledrivers on occasions prior to January 30 to take time off for such purposes as brief meetings, and he had further, at times together with other management representatives, discussed such problems with the rank-and-file employees. The parties' collective agreement provides (GC Exh. 2, Sched. "A," p 33) that "Any workman covered by this Agreement shall be under the supervision of a foreman of his crafts ...... It further provides (Art VII, Sec. 2, p 16) that the shop steward "may take reasonable time off from his regular duties when an employee (or group of employees) desire to take up with the steward any matter which is believed to be in violation of this Agreement," and that in such cases the steward must "inform his immediate supervisor [i.e., Foreman Clary] where he wishes to go and shall secure permission to leave" (id.) It seems evident that in granting time to the steward to talk to employees on such matters, the time of employees to whom 10 Officially noticed here without objection (Tr pp . 97-98). 11 See also N.L R B v Belfry Coal Corporation, 331 F 2d 738, 740 (C A 6), (refusal to work in unsafe mining area), N L R B v Walls Mfg. Co , 321 F 2d 753, 754 (C A D C , employee letter to health authorities regarding unsanitary restroom conditions ), Time-O-Matic, Inc v N L.R B., 264 F.2d 96, 101-102 (C.A 7, employees leaving work area, without permission , to speak to plant officials in office regarding grievance ), N L R.B. v Cowles Pub Co , 214 F 2d 708, 710 (C.A 9, work stoppage by employees, gathering in locker room , and joint presentation of grievances ), cert denied , 348 U.S 876, N L R B v Southern Silk Mills, Inc , 209 F 2d 155 (C A 6, work stoppages and walkouts because of excessive heat in factory ), cert . denied , 347 U.S. 976, N L.R B v J I Case Co , 198 F 2d 919, 921 -922 (C A. 8), brief march through plant aisles in protest against discharge of union steward ), cert denied , 345 U S 917, N.L.R.B. v Globe Wireless, Ltd., 193 F 2d 748, 749 (C A 9, employee protest to management and resumption of work conditioned on reinstatement of discharged fellow-employee unionist), Olin Industries, Inc v. N L R.B , 191 F 2d 613, 615 (CA. 5, work stoppages in protest against work schedule changes , refusal of employer to entertain grievances), cert denied 343 U S. 919, NLRB v Kennametal, Inc , 182 F.2d 817 , 819 (C.A 3, employees' attempt at group presentation of wage grievances to management , brief work stoppage ), N L R B v Greensboro Coca Cola Bottling Co., 180 F 2d 840, 843 (C A. 4, employee attempt to organize protest against proposed work changes ), Carter Carburetor Corp. v NL.R B., 140 F.2d 714, 717-718 (C A 8, attempt by employees to organize protest against discharge of fellow-employee union leader, refusal to return to work on employer 's order ), Hartwell Company, Inc , 169 NLRB No 73 (discharge for pressing miscellaneous grievances) 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the steward is permitted to talk, as well as the time of the steward, is involved. It is clear that the piledrivers regarded, and Respondent held out, Foreman Clary as having those responsibilities, which he indeed actually exercised, and that the piledrivers had every reason and right to regard Clary as possessing authority to speak for Respondent, as he did, in granting permission for them to hold their brief meeting on January 30 under the circumstances described Since Foreman Clary satisfied the requirements of super- visory status under the Act,' 2 I find that at all material times including January 30, Clary was Respondent's supervisor within the meaning of Section 2(11), as well as Respondent's agent within the meaning of Section 2(13), of the Act, and that the piledrivers' described meeting on January 30 was authorized by him on Respondent's behalf in the scope of his authority in both of those capacities, and that the meeting took place by reason thereof and in reliance thereon. 3. Alleged refusal of piledrivers to return to work In a letter (GC Exh. 1(e)) written by Respondent to the Board's Regional Director in response to the complaint, it is stated (p. 4) that the piledrivers in question, who met as described, "were ordered to return to work by our Company superintendent, but refused to do so . [and] were dis- charged for refusing to return to work." There is not a scintilla of evidence to support this allegation. To the contrary, the uncontroverted credited evidence overwhelmingly establishes that the piledriver crew was discharged as described and found above, and that, far from being ordered to return to work or refusing to do so, the piledrivers were summarily discharged by the Company superintendent and were not permitted then or thereafter to return to work. There is, accordingly, a total lack of merit to this contention, which has apparently been abandoned by Respondent since it was raised neither at the hearing nor in its brief 4. The arbitration contention It is finally urged by Respondent that this proceeding is barred by a grievance-arbitration provision in its collective agreement with the Union The facts in this regard are that the 12 Respondent concedes in its brief (p 4) that "Foreman Clary had certain supervisory authority , to fire, assign, etc., making him a supervisor within the meaning of Section 2 ( 11) of the Act." However, Respondent contends that Clary was not authorized to, or should not have permitted , the men to hold the dryshack meeting as he did. As has been indicated , Clary had-to the knowledge, and in certain instances with the participation , of higher management-authorized and taken part in such meetings with employees Management at no time gave any notice or indication to employees that their foreman (Clary) had any limitations on his powers or authority in this regard . Respondent now contends on brief that Clary was powerless to act in matters "involving" the Union , since he was a member. This is by no means true To begin with, no such limitation on his authority was factually established, Respondent having presented no witnesses whatsoever Secondly, the mere fact of union membership does not work an automatic disqualification to act on an employer's behalf , it is for the employer to decide whether or not to employ as its foreman and utilize as its agent, with or without announced limitations on his authority, a union member Moreover , the matter here involved related directly to the work and safety of the piledrivers on the project-matters clearly within Clary's orbit of competence Furthermore , for reasons already detailed, the question of whether the piledrivers ' meeting on January 30 was authorized is immaterial to the issue of the lawfulness of their discharge, parties' collective agreement contains a conventional griev- ance-arbitration provision (GC Exh 2, pp. 18-21, Art. X), and that the parties attempted, without success, to adjust this matter, without, however, at any time proceeding to arbitra- tion. Although on February 6 Respondent wrote the Union that it was willing to "join you" in taking steps to proceed to arbitration (Resp Exh. 1, p. 2) it is conceded that the Union never did so, and that neither of the parties took any step thereafter to appoint an arbitrator or otherwise to proceed to arbitration. The mere fact that a grievance-arbitration procedure is available to employees (or employer) under a collective agreement does not constitute a defense to employer (or Union) violation of the Act It would be contrary to the policies and purposes of the Act to permit employees (or employers) thus to relinquish its protections, and beyond their ability to narrow the Board's powers and obligations of administration and enforcement of the Act, Section 10(a) of which expressly provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise ,13 As recently stated in regard to a similar contention, in an unfair labor practices case where the parties had proceeded under the terms of their collective agreement to actually appointing an arbitra- tor, NL.R.B v. The Scam Instrument Corporation, 394 F 2d 884, 68 LRRM 2280, 2282 (C.A 7, 1968), enfg. 163 NLRB No. 39. " . . the Board's power to entertain the charges and to afford a remedy for the unfair labor practice found to exist was not precluded by the availability or the invocation of the contract's grievance and arbitration provisions Carey v. Westinghouse, 375 U.S 261, N L.R.B. v. Acme Industrial Co., 385 U.S. 432." For the foregoing reasons, Respondent's defenses should be rejected as lacking substantial merit. It is accordingly found that by its described discharge of its piledriver crew on the Joso Bridge Project on January 30, 1968 and its refusal since then to reinstate or reemploy said piledrivers, Respondent has interfered with, restrained and coerced, and is continuing to interfere with, restrain and coerce, employees in their right to engage in concerted activities for their mutual aid or protec- tion under Section 7 of the Act 14 since they could lawfully have left the job altogether for the reason they did, even without any meeting . Washington Aluminum and other cases cited supra 13 It has been remarked of Board proceedings that "The controversy is not to vindicate a private right , but to give effect to the public policy as defined by Congress, viz the prevention of unfair labor practices which, by causing and increasing industrial strife, obstruct the free flow of interstate commerce Amalgamated Utility Workers v Edison Co , 309 U S 261, 266, 267, 268 . .. " N L R B. v General Motors Corp., 166 F 2d 306 , 312 (C A 7) See also General Truckdnvers, Local 5 (Ryder Truck Lines, inc) v. N.L R B., 389 F.2d 757, 67 LRRM 2410, 2411 (C A. 5, 1968), Producers Grain Corp , 169 NLRB No. 68, C & S Industries, Inc., 158 NLRB 454, Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, 1416 14 In view of this finding , it is unnecessary to determine whether Respondent 's conduct also violated Section 8(a)(3) of the Act, the remedy in either event being the same Cf N.L.R.B. v. Kennameral, inc , 182 F.2d 817, 818 -819 (C.A.3), Gullett Gin Co, inc v. N.L.R.B., 179 F.2d 499, 502 (C.A 5), modified in other respect 340 U S. 361, Interboro Contractors, Inc , 157 NLRB 1295 , 1302, fn. 16, enfd. 388 F.2d 495 (C.A.2). MORRISON-KNUDSEN CO. Upon the foregoing findings and upon the entire record, I state the following CONCLUSIONS OF LAW I Morrison-Knudsen Company, Inc , Respondent here- in, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Pile Drivers' Local Union No 2382, affiliated with United Brotherhood of Carpenters and Joiners of Ameri- ca, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act 3. Assertion of jurisdiction herein is proper 4. By its conduct set forth in section III, supra, found to have constituted unfair labor practices, in dis- charging the following-named employees on January 30, 1968, and refusing since then to reinstate or reemploy them, Respondent has interfered with, restrained and coerced, and is interfering with, restraining and coercing, employees in the exercise of rights guaranteed by Sec- tion 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1), of the Act James I Bucklin Delbert J Clark Fred D Clary Lonnie R Cranor Albert C. Crouch Lester E. Edington Donovan J. Harter David Haught 5. The aforesaid unfair merce within the meaning the Act Ernest W Howland Leroy E. Meyers Michael Plasterer Glenn L Roberson Delbert C. Schaffer Jack Slawter Reece Storey R.L. Wilmoth labor practices affect com- of Section 2(6) and (7) of V THE REMEDY Having found that Respondent has engaged and is continu- ing to engage in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act With regard to the 16 rank-and-file piledrivers discharged on and not reemployed since January 30, 1968, 1 shall recommend that Respondent be required to cease and desist from continuation or repetition of such conduct, and that it be required to offer them immediate full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings and vacations or other emoluments or accruals suffered by reason of said unlawful discharge, from the date of that discharge to the date of Respondent's offer of reinstatement, together with interest thereon, less their respective net earnings if any during such period, backpay and interest to be computed in the manner prescribed by the Board in F W. Woolworth Co , 90 NLRB 289, and Isis Plumbing & Heating Co , Inc., 138 NLRB 71055 Against the eventuality that the particular construction project here involved ("Joso Bridge") may have been completed or 15 Although Foreman Clary was listed by name in the charge as one of those discriminatorily discharged, he was not included in the complaint. In view of this fact and because no issue has been tendered 61 will be completed prior to the effectuation of the relief flowing from this proceeding, or that for other potentially valid reasons it may be unfeasible to rehire all of the discrirmnatees at such time, I shall include in the Recom- mended Order provisions requiring Respondent to establish a special list from which the discriminatorily discharged em- ployees shall be preferentially rehired In implementation of the foregoing recommended remedial provisions, I shall further recommend the usual requirements in cases of this type, that Respondent make available necessary records for computation of backpay and any benefits, emoluments, or accruals which may be due or involved, and that Respondent be required to notify such of the discriminatorily discharged employees as may be in the Armed Forces of the United States of their right to full reinstatement after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended In view of the nature and extent of the unfair labor practices committed by Respondent and its continued refusal to reinstate or give employment to any of the employees whom it summarily discharged under the circumstances described, indicative of refractory continuing hostility to the exercise of employee rights guaranteed by the Act, I deem it appropriate to recommend that Respondent be required to cease and desist from infringing in any manner upon the rights of employees guaranteed in Section 7 of the Act Respondent should also be required to post the conventional Notice to Employees. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following RECOMMENDED ORDER It is hereby ordered that Morrison-Knudsen Company, Inc , its officers, agents, successors, and assigns, shall I Cease and desist from a Discharging or refusing to reinstate , hire, or rehire, any employee for engaging or attempting to engage in concerted activities for mutual aid or protection under the Act b. Failing or refusing to reinstate , hire, or rehire any of the following employees because of Respondent's discharge of said employees on January 30, 1968 , or because of any of the circumstances involved in said discharge James I Bucklin Delbert J Clark Fred D Clary Lonnie R Cranor Albert C Crouch Lester E. Edington Donovan J. Harter David Haught Ernest W. Howland Leroy E. Meyers Michael Plasterer Glenn L. Roberson Delbert C. Schaffer Jack Slawter Reece Storey R L Wilmoth c Interfering in any other manner with, or restraining or coercing, any employee in the exercise of his right to self-organization, to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of his own choosing, to engage in concerted activities for the purposes of nor remedy sought by General Counsel or the Charging Party Union concerning his discharge, I have not included him in the recommended remedy or order. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2. Take the following affirmative actions necessary to effectuate the policies of the Act a (1) Offer each of the following employees immediate, full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay, vacations, and other emoluments and accruals, in the manner set forth in "The Remedy" section of this decision Each of said employ- ees who is presently serving in the Armed Forces of the United States shall be notified by Respondent of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces The employees are James I. Bucklin Ernest W Howland Delbert J. Clark Leroy E Meyers Fred D. Clary Michael Plasterer Lonnie R Cranor Glenn L. Roberson Albert C Crouch Delbert C Schaffer Lester E Edington Jack Slawter Donovan J Harter Reece Storey David Haught R L Wilmoth (2) In the event that there are not sufficient jobs for said employees at Respondent's Joso Bridge Project or other construction project of Respondent within the territorial jurisdiction of Pile Drivers' Local Union No. 2382, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, such jobs as are so available shall be filled from among the above employees in accordance with their seniority or other nondiscriminatory practice heretofore ap- plied by Respondent in the conduct of its business (3) Place all of the above employees for whom no such employment is available upon a preferential hiring list, with priority in accordance with such system of seniority or other nondiscriminatory practice as has heretofore been applied by Respondent in the conduct of its business, and thereafter offer said employees reinstatement as such employ- ment becomes available and before other employees are hired for such work. b. Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain and analyze the amount of backpay and other amounts or accruals which may be due under the terms of this Order c Notify each of the employees entitled to reinstate- ment who may currently be serving in the Armed Forces of the United States, of his right to full reinstatement upon applica- tion after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended d Post at its Joso Bridge jobsite and at the hiring places for said jobsite, as well as at its principal office in Boise, Idaho, and at each of its jobsites within the territorial jurisdiction of Pile Drivers' Local Union No 2382, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL- CIO,16 as well as at each such jobsite as may commence operation within 6 months from the date on which compliance with this Order commences, 17 copies of the Notice attached hereto marked "Appendix A"' 8 Copies of said Notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by Respondent's authorized representa- tive, be posted by Respondent 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 Respondent to insure that said Notices are not altered, defaced, or covered by any other material. e Return to said Regional Director copies of the Notice signed as aforesaid, for posting by the above Union, if willing, at its offices, meeting places, hiring halls and other places from which prospective employees aie dispatched for employment, and where notices to members and other persons using said hiring halls are customarily posted f Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, as to what steps have been taken to comply therewith i 9 20 16 Central Rigging and Contracting Corporation, 136 NLRB 913, 918 At Respondent's option , the postings herein required may, instead of being made at each of its jobsites within the territorial jurisdiction of the above Union, be made at each of its jobsites covered or encompassed by the collective agreement dated June 1, 1965 (or any extension thereof), with said Union to which Respondent is a party or by which it is bound. 17 The Ingalls Steel Construction Company, 126 NLRB 584, 588 18 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the Notice. In the further event that the Board's Order is enforced by decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 19 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, as to what steps have been taken to comply herewith " 20 To the extent Respondent 's proposed findings and conclusions, dated June 12, 1968 , are inconsistent with findings and conclusions herein made , they are disallowed APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- After a hearing duly held, it has been determined that Morrison-Knudsen Company, Inc., has violated the National Labor Relations Act in discharging its piledriver crew at the Joso Bridge project on January 30, 1968. In order to remedy this conduct, we are posting this notice and we will do the following: WE WILL offer each of the following employees im- mediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, with backpay and interest, for any wages and other payments, bonuses, benefits, vacations, and other emoluments and accruals, lost because of our unlawful termination of his employment on January 30, 1968, and our failure and refusal to remstate or reemploy him. MORRISON-KNUDSEN CO 63 James I. Bucklin Delbert J. Clark Fred D. Clary Lonme R. Cranor Albert C. Crouch Lester E. Edington Donovan J. Harter David Haught Ernest W. Howland Leroy E. Meyers Michael Plasterer Glenn L. Roberson Delbert C. Schaffer Jack Slawter Reece Storey R.L. Wilmoth In the event there are insufficient jobs open for the purpose of such reinstatements, we will set up and hire the above employees from a preferential hiring list on a nondiscrimina- tory seniority basis. WE WILL NOT discharge, refuse or fail to reinstate, or refuse or fail to hire or rehire, any of the above employees because we discharged him on January 30, 1968, or because of any of the circumstances resulting in that discharge. WE WILL NOT discharge, lay off, suspend, discipline, retali- ate or discriminate against, or threaten so to do, any employee for engaging or attempting to engage in concerted activities for mutual aid or protection, or for exercising or attempting to exercise any other right which employees have, under the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights, guaranteed to them by Congress, to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities. MORRISON -KNUDSEN COMPANY, INC (Employer) Dated By (Representative) (Title) NOTE If any of the above employees is presently serving in the Armed Forces of the United States, we shall notify him of his 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. This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate di- rectly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101 Tel. 583-4532. r