Myers Industrial Electric

MYERS INDUSTRIAL ELECTRIC 817 Arthur Edward Myers d/b/a Myers Industrial Electric and David Rex McMurdo. Case 19-CA-3538 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On February 6, 1968, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner' s Decision and the Respondent filed a Response and a brief. On June 28, 1968, the National Labor Relations Board issued an Order remanding the proceeding, reopening the record, and directing a further hearing for the purpose of adducing additional evidence with respect to various issues raised in the case. The Trial Examiner was directed to prepare and serve upon the parties a Supplemental Decision containing findings of fact, conclusions of law, and recommendations based upon the evidence received pursuant to the provisions of the Board's Order. On February 18, 1969, Trial Examiner E. Don Wilson issued his Supplemental Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged and again recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Supplemental Decision and supporting briefs, and the Respondent subsequently filed an answering 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 of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and his Supplemental Decision, the exceptions and briefs, 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 The Charging Party's requests for oral argument are hereby denied as the record, including the exceptions and briefs, adequately present the issues and the positions of the parties Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MCCULLOCH, dissenting: Unlike my colleagues, I would find that the Respondent's termination of the alleged discriminatees violated Section 8(a)(1) of the Act. In the instant case, the facts show that the Respondent agreed in advance with the Union, in section 17(a) of article IV of their collective-bargaining agreement, that as a "safety measure" on all energized circuits of 440 or more volts or on work done under hazardous conditions - the very type of work involved herein - not less than two journeymen shall work together. On learning of the Respondent's proposed breach of this safety measure, the Union's representatives twice conferred with the Respondent's officials to protest. The Respondent nevertheless proceeded with its proposal, and then discharged the complainants for having been provoked into walking off the unsafe job. In view of the Respondent's contractual commitment to observe certain safety standards, in the collective-bargaining agreement with the Union, I do not believe that the Respondent should be allowed to strip these safety standards from the employees and still rely on the no-strike provision in the agreement as an excuse to discharge them for their protest strike. Nor do I see how the employees can be said to be without any reasonable objective basis for striking against the Respondent's breach of the agreed safety standards, merely because witnesses at a subsequent Board hearing convince a Trial Examiner that the resulting working conditions, although "particularly dangerous" according to his findings, were not abnormally so. I regard the Respondent's relaxation of agreed safety standards both as a material breach of its basic and fundamental obligation to provide safe working conditions, and as a justification for the employees' resort to a walkout in disregard of the contractual no-strike provisions.' Accordingly, I would conclude that by terminating the employment of three employees because they engaged in protected concerted activity, the Respondent violated Section 8(a)(1) of the Act. 'See San Juan Lumber Company, 154 NLRB 1153, 1155 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: Upon a charge filed on December 5, 1966, by David Rex McMurdo, an individual, herein McMurdo, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint dated July It, 1967, alleging that Arthur Edward Myers, d/b/a Myers Industrial Electric, herein Respondent, violated Section 8(a)(3)' and (1) of the National Labor Relations Act, herein the Act. At the hearing and in his brief, General Counsel abandoned any 177 NLRB No. 52 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to due notice a hearing in this matter was held before me on October 24 and 25, 1967, at Kalispell, Montana. The parties fully participated. Briefs have been received and considered. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent' s principal place of business is in Oroville, California . It is engaged in the installation of wiring and electrical equipment primarily in heavy construction projects. In 1966, Respondent was so engaged on a project located near Trego , Montana. During the past year, in his business operations, Respondent received in excess of $50,000 from sales and performance of services made to customers outside California. At all times material, Respondent has been an employer engaged in commerce within the meaning of the Act. C. The November 15 Walkout Having learned of the reduction in force, on November 15, all of Respondent's electricians failed to report for work. It is clear that although there was a no-strike clause in the agreement with the Union which covered their employment, the electricians walked off the job on the grounds that it was abnormally dangerous for an electrician to work alone on the swing and graveyard shifts where 440 or higher volt circuits had to be dealt with. On November 16, Respondent sent the electricians' final pay to the Union office with termination notices stating the men had quit their employment. Six termination forms, including those of the three alleged discriminatees, stated that the named employees or supervisors were "not subject for rehire on this job." A few days later Respondent rehired all but the named six. The alleged three discriminatees were George Johnson, Lou Pauly and Hyla Maze. Il. THE LABOR ORGANIZATION Local 768, International Brotherhood of Electrical Workers, AFL-CIO, herein the Union, has been a labor organization within the meaning of the Act, at all material times. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Was the discharge of three journeymen electricians for walking off the job in violation of a no-strike clause, unlawful because the men walked off in protest of allegedly abnormally dangerous working conditions? B. Background The United States Government let a contract for the construction of a tunnel to Walsh-Groves Construction Co., as prime contractor. The tunnel project was supervised by the United States Army Corps of Engineers. About June 1, 1966,2 Walsh-Groves subcontracted the electrical work to Respondent. Respondent has had considerable experience in heavy construction work, including tunnels. On July 25, Respondent entered into a contract with the Union. The tunnel was being driven from both ends with a North and a South portal, but was treated as one job. Respondent advised the Union as to how he planned to man the tunnel work. There were to be three electricians for each portal on the day shift and one for each portal on the swing and graveyard shifts, making a total of 10 electricians in all, including foremen. Respondent commenced work on July 25, with more than his planned crew of 10 because of surface installations necessary before actual tunneling began and because he was behind on his work schedule. By November 14, he was caught up on his work and decided to reduce his crew to the planned ten men plus a general foreman. He did so, with the result that on the swing and graveyard shifts there was but one electrician at each portal. allegation of an 8(a)(3) violation. 'Hereinafter all dates refer to 1966, unless otherwise stated D. The Alleged Abnormally Dangerous Working Conditions The complaint, as amplified by a bill of particulars, alleged that the abnormally dangerous working conditions consisted of a requirement by Respondent that electricians work on energized circuits of 440 volts and over in wet, damp areas alone and without another electrician being present. Obviously under the new requirements, one electrician would be working alone on the swing and graveyard shifts at the North and South portals. The record discloses it was not unusual for it to be wet and damp when an electrician did his work in the tunnel. Equipment known as a "Carpet", a "Jumbo" and a "Mucker" were used in this tunneling work. I find no need to describe their functions other than to point out that at least part of their operations was generated by electricity. The mucker was plugged and unplugged by miners. A large so-called rib cable lies on the tunnel floor or is hung up when appropriate by the electricians. It carries 440 volts. It is approved for the use to which Respondent put it and for manual handling by the U. S. Bureau of Mines and the Pennsylvania Bureau of Mines. It was stipulated that this rib cable met all safety requirements. The cable comes in sections about 425 feet in length. Sections are joined to each other by plugs. From time to time electricians pull or move this cable by hand.' Electricians care for any slack in the rib cable or hang it, plug and unplug various connections, maintain, add to or replace sections in the various cables and maintain the various contacts. They also test circuits. Testing with a volt or ampmeter requires an energized circuit. It is plain to me that working in tunnel construction is dangerous. It is particularly dangerous to work as an electrician in the wet and damp conditions which may exist in a tunnel. Of course there are the safety controls such as gloves, etc., which may be used. General Counsel presented six journeymen electricians with years of experience' who testified with an important exception, Johnson, that they believed "working alone" on energized circuits of 440 volts or over to be abnormally dangerous. Johnson, one of the alleged 8(a)(1)s, testified 'Always an electrician could make use of safety gloves or other safety equipment or devices. 'Other than tunnel work MYERS INDUSTRIAL ELECTRIC 819 that he would not consider it abnormally dangerous to work on live 440 volts in a tunnel. Of course, there are facilities for electricians "to de-energize and lock out the circuit." It is plain from the testimony of Johnson that the rib cable is built particularly for the purpose of safely pulling and moving it while it is energized. There is testimony in the record concerning the danger of plugging or unplugging while the plug and/or the receptacle are wet or muddy. It is plain from the record that the plug and/or receptacle may be cleaned and dried so that there is little or no danger in plugging or unplugging , if reasonable care is used. The electricians were not concerned about having merely another employee with them if they came in contact with a live 440 or over volt circuit, but they wanted another electrician present so that he could take care of the working electrician in case he got "hung up." They had confidence that another electrician could better aid in case of an accident. All of the employees in the tunnel had regular safety programs. Respondent's witnesses all had years of experience in electrical work in tunnels, unlike General Counsel's witnesses . Respondent's witnesses agreed that tunnel work is hazardous for all tunnel workers, including electricians. They do not consider the work to be abnormally dangerous. They point out that dangers are minimized by the exercise of care and proper use of safety equipment and devices. They further point out that the other workers in the tunnel are trained to render necessary assistance and first aid in the event of an accident. It is the gist of their testimony that it is not unusual for an electrician to work alone in tunnel work. It has been noted that work on this tunnel was performed under the close supervision of the Corps of Engineers. Walsh-Groves supervisors testified that work under the Corps was much more requiring from a safety standpoint than under other agencies . They testified there was nothing abnormally dangerous about any electrician's work in this tunnel. Walsh-Groves' safety engineer testified there were frequent inspections by safety personnel from the Army Corps of Engineers, the State of Montana and the U. S. Bureau of Mines. All reports were that safety conditions were satisfactory. The engineer found nothing abnormally dangerous in the working conditions of the electricians. The Army Corps of Engineers had a safety regulation, article 15, section 11 , which provides: "Work requiring two or more men. In maintenance, repair or construction work , either in overhead line work or in substation and power plant work, where the wiring is congested and where the work requires unusual exposures, or handling of energized conductors or apparatus, two or more employees shall work together. It may be necessary to delegate one of the employees to watch the movements of the men doing the work so that he can warn them if they get dangerously close to live conductors and render assistance in case of an accident. The foreman is held responsible for assigning a sufficient number of qualified men to do this type of work safely." Richard K. Leatherman was called as a witness by the General Counsel. He impressed me as a disinterested and highly competent and qualified witness. He had been working at the tunnel and it was his job to enforce the general safety requirements of the Army Corps of Engineers. He conducted the safety inspections on the job. He was definite that the above quoted regulation was inapplicable to the work of the electricians here involved. For 11 years he has enforced the safety regulations of the Corps. I consider him to be an expert and he testified he saw nothing abnormally dangerous for an electrician to work alone in the tunnel on 440 or higher volts. He didn't see a chance for a man to be shocked while doing electrical work in the tunnel if there were a "proper workmanlike maintenance program." It is the responsibility of the electrician to do his job in a workmanlike manner. An electrician working in the tunnel would not be faced with dangerous conditions if he exercised reasonable care or engaged in "good housekeeping." J. D. VanSant testified he was Leatherman's supervisor. He testified Respondent was not in violation of the regulations of the Corps. He described Leatherman as being more determined on enforcement of safety regulations than anyone else he had ever seen. Concluding Findings Particularly accepting Leatherman's testimony, as I do, I conclude that General Counsel has not established by a preponderance of substantial evidence that the alleged discriminatees walked off the job because of abnormally dangerous working conditions. The term "abnormally dangerous conditions" contemplates an objective as opposed to a subjective test.' That some of the alleged discriminatees may have believed the conditions were "abnormally dangerous" is immaterial. General Counsel has failed to establish by a preponderance of the competent evidence that the actual working conditions were "abnormally dangerous." Thus, the walkout in violation of the no-strike clause, was unprotected by the Act. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record, I make the following conclusions of law. 1. Respondent is and has been at all material times, an employer engaged in commerce within the meaning of the Act. 2. The Union has been a labor organization within the meaning of the Act, at all material times. 3. The record does not establish that Respondent has engaged in any unfair labor practice alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, it is recommended that the Board enter an order dismissing the complaint. 'Redwing Carriers, Inc., 130 NLRB 1208, 1209.