Bob's Casing Crews, Inc.

BOB'S CASING CREWS, INC. Bob's Casing Crews,-Inc. and Local 826, International Union of Operating Engineers, AFL-CIO, Case 16-CA-3401 July 9, 1971 SUPPLEMENTAL DECISION AND, ORDER BY MEMBERS FANNING, BROWN, AND JENICINS On August 1, 1969, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding," finding that the Respondent, Bob's Casing Crews, Inc:, had violated Section 8(a)(l) of the National Labor` Relations Act, as amended, by refusing to rehire'Billy Ray Loper because of Loper's conduct at Red's Casing Crews (another employer) on August 5 and 6,,1968. Thereafter, on July 14, 1970, the United- States Court of Appeals for, the Fifth Circuit entered an order remanding the case to the, Board -for further hearing in accordance with its opinion.2 Pursuant to the court's remand, an Order was issued by the Board on, September 11, 1970, and a hearing was held on November 17 arid' 18, 1970, before Trial Examiner Joseph I. Nachman. On February 19, 1971, the Trial Examiner issued the attached Supplemental Decision, finding that Loper's conduct at Red's on August 5 and 6, 1968, constituted protected, concerted activity within the meaning- of Section 7 of the Act and that Respondent's refusal to hire Loper because he had engaged in such activity violated Section 8(a)(1) of the Act. Thereafter, the Respondent filed exceptions and, a supporting brief and the General Counsel filed a brief in support of the Supplemental Decision. -- Pursuant to the provisions of Section 3(b) of the National ,..Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. - The Board has reviewed ' the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error - was committed. The rulings are hereby 'affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in the case,3 and hereby adopts the fmmdings,4.conclusions,5 and recom- mendations of the Trial Examiner.e ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and on the basis of the Trial Examiner's, Supplemental 'Decision and the entire record in this, case, the National Labor 192 NLRB No. 2 I Relations Board hereby reaffirms its'Order previously issued herein and orders that Respondent, hob's Casing Crews, Inc., Odessa, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Board's previous decision. - 1 178 NLRB No. 2. 2'429 F.2d 261. 3 The, Respondent's request for oral argument is hereby denied as, in our opinion, the record, exceptions, and briefs adequately present the positions of the parties. 4 The Respondent has excepted, to certain credibility findings 'made by the Trial Examiner. It is 'the Board's established policy not to overrule 'a Trial Examiner's resolutions with respect to credibility ' Unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall; Inc., 91 NLRB 544, entd. 188 F.2d 363 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. ti ' 5 While we agree with the Trial Examinees conclusion that Sec. It b) of the Act does not bar our 8(axl) finding in the instant case ,' we hereby disavow as a reason therefor the Trial Examiner's opinion that the court, sub silentio, held the Respondent's argument as to Sec. 10(b) to be without meet. 6 Accordingly, the Respondent's motion to set' aside the Trial Examiner's Supplemental Decision is denied. - TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOSEPH I. NACE MAN, Trial Examiner: This matter tried before me at Odessa, Texas, on November 17 and 18, 1970, with all parties present and duly represented; on a;remand order issued by the United States Conn of'Appeals for the Fifth Circuit on July, 14, 1910,` and an order of the,National Labor Relations Board (herein the` Board) issued ' . Septem- ber 11, 1970, pursuant to the court's,remandd. 'Y'he scope of the remand, and the issue litigated, is whether Billy Ray Loper's-conduct at Red's Casing Crews (another employer) on August 5 and 6, 1968, constituted protected,' concerted activity within the meaning of Section 7 of the National Labor Relations Act, as amended (herein the Act). For reasons hereafter stated I find and conclude that `Loper's conduct at the time referred to constituted protected:, concerted activity within the meaning of Section 7 of the Act, and that Respondent's refusal to hire Loper because he had engaged in such activity was violative of Section 8(axl) of the Act. Accordingly, I shall'reconiviend that the Board reaffirm its prior Decision , and Order and direct Respon- dent to take the action therein stated. - At the trial the General Counsel and Respondent were represented by their respective counsel, and the Charging Union by its International representative. All parties_ were afforded full opportunity to, examine, and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. The" General Counsel made a short oral argument which is - included in the transcript. Briefs submitted by -the General Counsel and Respondent, respectively, have'beeri duly considered.' ' Upon the entire record in the case, including, my observation of the demeanor of, the witnesses while testifying, I make the following: 1 A reply brief submitted by the General Counsel was rejected because (Continued) 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. FINDINGS OF FACT 2 A. Setting of the Issue ,On August-1; 1969, "the Board- issued its Decision and Order holding that Respondent-violated Section 8(a)(1) of the Act by refusing to reemploy Loper,,because-he had engaged in protected, concerted activity whileemployed, by Red's Casing Crews. (herein Red's), a- competitor of Respondent, and ordered Respondent to offer Loper employment as a caser and make him whole for any wages he, lost by :reason of Respondent's said refusal to rehire. Bob's Casing Crews, Inc., 178 NLRB No., 2.3 On Respondent's petition to review and set aside the Board's Order; and -the Boa;rd's cross-petition for enforcement,' the court of appeals concluded that' Loper's alleged engage- ment in protected, concerted activity at, Red's "were, never ptxtin=issuer ntil after the close' of the hearing." The court observed:" The`record"does establish that Loper's'activity at Red's, was a factor in the Company's decisions not to reemploy him. However, this factor, may have been a legitimate business reason, unless it can be shown that Loper's conduct ,at Red's was protected' "concerted activity." The record is unclear as to whether Loper "walked off" the job,at Red's, or was "relieved;" whether the working conditions were so intolerable as to justify Loper's "walking off;" whether his activity was actually ", con c rted' or earned,. out by himself See N.L R B. v. 7ashingtton Aluminum Co .; 370 .S. 9. ` ' e mine aring, is held to deter the merits or Un a, h [thatl'issue ard'the parties' are given,an opportunity to aepaiee'44r an adversarial presentation on the question the applicable Boards Rules and Regulations make no provision for such'a brief. n ,,, t, t."°_ - _ , I " , -A At, the , start of the trial on November 17, 1970, Respondent moved that I ,disqualify my,self from proceeding further m this case. The reason hssigned"was that"I;'in the priorDecrsron issued on March 18, 1969, made a, determination that what 'occurred at Red's ' was ^ protected, concerted activity, and that the court's, remand was, for further hearing-on the same subject. -The motion was,denled because not„m proper form, and in any event did not make allegations calling' for disqualification. After the record dose, ` Respondent_ftled with me on-laecetnber 31, 1970, an affidavit of counsel, 'alleg'edly-pursuant to the Boaid's,Rules and Regulations'(29 CFR Chapter I, ,Part 102,' Sec. 702.37),, renewing the aforesaid motion, and in addition to the, allegation , that the issue ,on remand was the same as that previously decided, alleged that it"is "Respondent's belief that this Trial Examiner, cannot be objective, by"lthe very nature of the subject` of the Remand'Hearing, and-will be biased and prejudiced to'support his prior Decision herein of March ,18, 1969.',' I now,-deny said motion for the following reasons, 1. Granted that,Respondent did not and could not know who would be assigned to condnct'ihe'remand healing, that fact certainly became known when I°appeared'aat the ' hearing, on, November' l7. The affidavit was not executed until December 29,'virtually 6 weeks following the close of the heating,,and hence,, was not ,,"promptly" or "timely" filed, within, the meaning of the regulation. 12. The Board's regulation above referred to requires that the affidavit must "detailthe'm'atteis alleged-to constitute grounds for disqualification." The affidavit, here,wholly l'ails'to meet that requirement; it merely alleges Respondenth, belief,- that,the Trial Examiner "will be biased and prejudiced to support, is,,prior Decision ...:'" Every trier of fact when he hears a case or" wites a decision mustform anopinion with respect to the merits of the -matters before him, but this- does not mean that the fact -finder entertains a personal bias or a "disqualification " which precluded him from hearing other aspects of the same case that thereafter arise . Cf. Tricher v. Kerner, 186 F.2d 79, 84; (C.A. 7). `Were the rule otherwise every judge of, whether, Loper's conduct, at ,Red's was, protected "concerted activity,"the.' record' does not show-sufficient ' l findings to support the Board's decision. Accordingly, the court remanded the case for the taking of further testimony as above indicated. Bob's Casing Crews, Inc. v. N.LR.B., 429 F. 2d 261, 263=64(C.A. 5). B. Facts Developed at the Remand Hearing Red's is engaged at Odessa, Texas, in providing casing crews to perform services to oilfield owners and/or drilling contractors, and is in direct competition with Respondent Bob's 'Casings Crews, Inc:; (herein-- ,. Bob's). The work is performed by a so-called casing crews, consisting of a crew hauler, who is an admitted, supervisor, and a number of casers; the,size of , the crew,nors r ally being fixed by the owner or' drilling contractorwho`awaids the contract for the `work. `Red's employs "field' representatives, whose principal `duty is" to solicit work to be performed by Red`s crews.4 On August 4, Red's Fi`eld Representative" Billie Black obtained an order from Standard Oil Company of Texas (herein Standard), to "Lay Down 10j500 feet of 7- inch casing" at its location approximately, 160 miles from Odessa, where Noble Drilling Comnpany_(herein,Noble) ,was the drilling contractor.6 As is the practice, when Standard was ready for the performanceof the work mentioned in its order, it called Red's answering service, the_ latter telephoned crew hauler Shelton, and unformed him of the location and nature of the work to be `performed, and the size of the crew which Standard had authorized. Shelton received the call `for this job About 2 a.in:, August 5, and as was his duty, immediately began to assdmble his crew for the performance of the job.7 After Shelton assembled his crew, which in this case consisted of himself and four- men would be disqualified from proceeding ,further with any'case _in which he had'"therefore made a decision. Tricher v. Kerner,'supra. s In the absence of exceptions, the Board made no ruhngwith respect to the General Counsel's contention, denied by Respondent, andas, to which the Trial Examiner" found it unnecessary to make any findings, namely, that Respondent's refusal to hire 'Loper was motivated,°at'least-in' part,by the fact that Loper had engaged in a strike ,against Respondent in April 1968. See 178 NLRB No. 2 (TXD). 4 Whether the field' representative is a supervisor within the'meaning of Sec. 2(11) of the Act is one of the questions hereafterconsidered.' S This and all dates hereafter mentioned are 1968, unless otherwise indicated. 6 The parties 'stipulated ' that the "terms""laying down casing," "picking up casing," and "running casing" have a definite and understood meaning in. the industry,- According , to the slip ationr'laying,downcasing', means that casing in a shaft is pulled ' therefrom by the drilling contractor, the various-section'sare disjointed, , by the casing crews and the casers'stac'k the casing beside the drilling rig. "Running casing "" means that casers handle a section of casing which the drilling crew lowers- into,the well shaft for the greater portion of its length; a collar'yis'attached to the'u'pper and of the casing and a new section threaded on and lowered into the shaft, with the operation-,repeated until' casing, is,,lowered' to the , desired,, depth, The threading of sections is done by-means ofpower tongs which are owned by Red's and operated by'members "of its crew: The term "picking'up"' casing, or drill pipe means that casing or drill pipe previously removed 'friom a shaft and stacked is picked up by the casing crew and moved into position on the drilling rig where the drilling- contractor can attach to it for the purpose of lowering it back into the well shaft. 4 Each crew hauler has assigned to him a number of so-called regular casers. These men are full-time'employees who*woik only for Reds Land are entitled to ,preference on any job assigned to his crew hauler, but may, for any reason, refuse a particular job. In addition, a list of so-called extra casers is maintained, who are called" upon for work as needed to fill out a crew. The extra casers are-permitted and frequently do work for other BOB'S CASING CREWS, INC. 3 whom he picked up at their respective homes, he went to Red's shop-where he picked up the required tools, including the, power wrench-which is transported on a carrier towed by the car, and about 4 a.m. in Shelton's car, the entire crew left for the jobsite s When Shelton and his crew left Odessa their only information as to the natureand quantity of the work they would have to perform was that they were to lay down 10,500 feet of 7-inch-casing.9 Arriving at the jobsite approximately 8-a.m., the menAchanged clothes, and started looking over the work to be done. About this time the representative'"of -Standard approached Shelton with the request thathis crew pickup 10,000 feet of 4-inch drill pipe, after they completed the work of laying down the 10,500 feet of casing.lo The drill pipe referred to had been pulled from the well -shaft before the Shelton crew arrived on the job, and placed on the ground, apparently a distance from the drilling rig. To do the extra work meant that the Shelton crew would have to, lift the pipe up a height of 3 or 4 feet and then roll it up about a 45=degree incline a distance of about -60 feet to a point on the side of the drilling rig where the drilling crew could hook on to it. The drill pipe consisted of about 325 sections, varying in length from 28 to 32 feet, each section weighing from 250 to 300 pounds. Following the aforesaid conversation between Standard's representative and Shelton, the latter and his entire crew discussed among-themselves the amount of work called for by the initial work order and the additional work now requested by Standard. The crew told Shelton that the work would be, less physically -taxing if they could use a winch truck then ;on' the premises to lift the pipe into place and suggested that- Shelton seek permission to use it. Shelton went `to' Standard for that purpose, but such permission was denied by Standard. When Shelton informed his crew that permission to use the winch truck had been denied, the four casers discussed the matter further and concluded that they would lay down the casing as required by the original work order, but that when they completed that task they would be too tired to roll the drill pipe up on the rack as would be required, and that they wanted relief.11 Loper then went to Shelton and informed the latter of the decision ruched by employers, and may accept or reject job offers as they see fit. When the crew hauler is not able to get the required number of men from among his "regular" casers, he calls "extra" men until his needs are met. a The parties stipulated that on this occasion Shelton's crew consisted of, in addition to himself;' Larry'Bentley, Doyle Bounds, C. J.Maddox, and Billy Ray Loper. Whether these men are regular or extra casers was expressly excluded from the stipulation. Loper testified without contradiction that he worked for Red's as a "steady extra;" Bounds testified he had been a regular employee of Red's for 3 or 4 months; and the, status of, Bentley is not covered by his testimony. Maddox did not testify. a Doyle Bounds testified that the subject of extra work was discussed among the men on the trip from Odessa to the jobsite. His testimony is contrary to the stipulation of counsel that it was not until after the men arrived at the worksite that the representative of Standard ' informed Shelton that he wanted the crew to pick up 10,000 feet of drill pipe after they completed the work called for by the original order.- Bounds =was clearly mistaken in this aspect of his testimony , and I do not credit it. Loper testified that when the crew went to Red's shop to get the power tongs and other needed tools, lie met Don Roberts, Red's president, who told him that the men might have to pick up some drill pipe after they finished with the casing. Roberts denied that he was even at the shop at the time. I credit Roberts. 10 There is in evidence a work order given by Standard to Red's for the work involving the drill pipe. The order, dated August 5, describes the work as "Furnish 2 men to help run 4 drill pipe," and is signed on behalf of the crew, and asked that Shelton arrange for relief. Shelton agreed that the amount of worknow requested by Standard was too much for the crew- to do, and said that-he would make the necessary'arrangements for relief through Black as soon as the latter came to the job. By 9 a.m., the crew was at work laying down the casing, -and that work proceeded with short breaks for coffee or a sandwich, until completed in the early hours of August 6. About noon on August 5, Black came to the job and was on the drilling rig talking with Shelton. Loper went over and, in Shelton's presence, told Black-that 'the men had decided not to pick up the-drill pipe, that they wanted relief and were going home when they-finished laying down the casing. Thereupon Black telephoned Red's office from the jobsite and reported that a relief crew would be needed when the laying down of the casing was finished. Red's Office told Black that no crew was immediately available, but that every effort Would be made to assemble`one and have relief on the job when needed. Black promptly reported these facts to Shelton, and the latter suggested to Black that in the event that Red's office-had difficulty in assembling a relief crew, Black might consider getting -a roustabout crew from another point.12 About 6 p.m., on August 5, Red's having been able to secure the service of only two casers, Wilbur Fuller and Bill Taylor,' dispatched these men to the jobsite, where they arrived about 10p.m. The work of laying down, the casing being then `still in progress, Taylor and Fuller slept in their car until the Shelton crew completed the casing work, which occurred between midnight and 1 an., August 6.13'At that time Black told Shelton and his crew that in addition to Taylor and Fuller, `who were on the jobsite, four roustabouts were on their way from Ozona to fill out the relief crew. Upon completion of the casing work Shelton and', his crew disassembled the power wrench, picked ' up their tools, changed clothes, and they and Black left:, the job between 1 and 2' a.n., for Odessa.14 When they left the roustabouts had not yet arrived on the job. Whether they ever arrived, and if so at what hour, the record does not show. Arriving Red's by "W. L. Fuller" There is no testimony as to when or the circumstances under which this order was given. As Fuller was one of the two men sent to the job to relieve Shelton's crew, as, hereafter ;set forth, arriving there about 10 p.m. on August 5, and there 'being' n ' contrary evidence, IT assume that the' order for the work was reduced to writing after the events hereafter detailed. 11 It is the practice at Red's that whenever a crew asks for relief, such relief is provided without question. ` u This refers to a labor crew of independent contractors who"do work on call. 13 When the Shelton crew finished with the casing work, the men had been awake for between 22 and 23 hoursand had spent between '15 and 16 hours in performing what Shelton 'admitted was "an extra hard pulling job." 14 Considerable testimony was taken to establish that because .Shelton was having some difficulty with the transmission on his car he asked Black to tow the cattier, on which thepower wrench rested, back to Odessa' with his car. Black did'so, with two of the men (Maddox and Bounds) riding with Black,- and ,the other two (Loper'and Bentley) riding with Shelton. Oh the return trip the carrier Black was towing became discoinected from the car and came to rest in a ditch; with the carrier and the ' power wrench sustaining some damage. I make no findings with respect ' to these`mitters because there is no contention that the'discharge of Loper was in'anyway motivated by the damage to the power wrench, or was a factor in R pondent's refusal to rehire Loper. Accordingly, I regard this fact as irrelevant to any issue in the case. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Odessa at approximately 6 a.m., the men were taken to their respective homes, where they went to sleep.15 During the afternoon of August 6, the exact time not being more precisely fixed, Shelton came to Loper's home and told the latter that he had been instructed by Roberts, president and owner of Red's, to lay Loper off because he threatened to walk off the job the preceding night.16 Contentions and' Conclusions Before proceeding to the principal question on this remand, two collateral points must be considered. The first relates to the power of the Board to proceed in this case; and the second involves the supervisory status of Black. These will be treated in the order stated. At the beginning of the trial pursuant to the remand, Respondent moved "to dismiss the case as it now stands," on the ground that the "subject matter was not involved in the original charge . . . nor in the original complaint," being first raised after the close of the original hearing, and at that time more than 6 months had elapsed since August 6, when the events occurred, and the complaint is for that reason barred by the limitation provisions of Section 10(b) of the Act. The motion was denied. The contention is, however, renewed in Respondent's brief and must be considered. It may be noted at the outset that Respondent raised the precise contention before the court of appeals.17 Although the contention goes to the very power of the Board to act in this case, the court's decision made no reference to the contention referred to (even though other jurisdictional issues were considered and decided), and it proceeded to a decision of the case on its merits, thus sub silentio holding the contention to be without merit. In any event I find the contention without merit for it miscon- ceives the function of a charge, and the Board 's powers once a charge is filed. It is true that the filing of a timely charge is a condition precedent to the Board's power to act in a particular matter. But the charge "does not . . . serve the purpose of a pleading" (N.L.R.B. v. Indiana Michigan Electric Co., 318 U.S. 9, 18); its only function being to set "in motion the machinery of an inquiry" (id ). And when the Board issues a complaint on a timely charge , "the question is only the truth of its accusations" (id ). While the Board may not expand the charge as it pleases, and its complaint must bear 15 My findings to this point are based on the stipulation of counsel and, to the extent not in conflict with the stipulation, on the oral testimony of Loper, Bounds, Bentley', Black, and Shelton. While the testimony of these witnesses differ in some minor details, as to material facts their testimony is not in conflict. to Based on the credited testimony of Loper . Roberts denied that he gave any instructions that any employee be laid off because of the incidents here involved. Although Shelton denied that he discharged anyone because of the events of August 5 and 6, his testimony regarding the precise statement Loper attributed to him was evasive . When asked if he went to Loper's home on August 6, Shelton replied, "not to my knowledge." When asked to explain if this meant that he denied going to Loper's home on the day in question, or whether he meant that he may have been there, but did not recall it, Shelton again answered "I don't remember going to his house." And it was not until he was finally pressed if this meant that he didn't go there, that he answered, "I didn't go." My conclusion to credit Loper in this regard is based not only on Shelton's evasiveness, but on the additional fact, as Respondent President Blackmon and Supervisor Golden both admitted at the prior trial, Loper telephoned them on August 6 asking for work explaining that the had been fired by some relation to the matters alleged in the charge, the Board "is not precluded from 'dealing adequately with unfair labor practices which are related to those alleged "'(N.LRB. v. Fant Milling Co., 360 U.S. 301, 309.) The charge in the instant case 18 alleges that "on or about August 7, 1968,19 Respondent refused to employ Loper "because of his membership and activities in behalf of the [Union]," and that "by the above and other acts ," (emphasis supplied) restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. The complaint issued by the General Counsel followed the charge closely, alleging that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to reemploy Loper because he joined or assisted the Union, "or engaged in other union activities or concerted activities for the purpose of collective bargaining or mutual aid or protection." There cannot be the slightest doubt that the timely charge filed herein and the complaint both allege a violation of Section 8(a)(1) of the Act by reason of Respondent's refusal to employ Loper because he had engaged in concerted activity protected by Section 7 of the Act. It is true that the court found that the complaint was not sufficiently detailed to put Respondent on notice that the concerted activity referred to therein was the events at Red's, and to give Respondent an opportunity to fully litigate those facts, the court remanded the case to the Board for further testimony. The remand directed by the court was not based on a new cause of action, or even a new theory, but one that had always been in the complaint, although not initially alleged with the specificity the court deemed necessary to put Respondent on notice as to what it would be called upon to defend against. Not only was the complaint not amended, but the court directed no such amendment. Accordingly, Respondent's motion to dismiss this proceeding because of the alleged absence of a timely charge to support the complaint is denied. With respect to the supervisory status of Black, Don Roberts, president and owner of Red's, testified that Black's function was to solicit business and, if he obtained a contract, to visit the job while the work was in progress to see that it was being performed properly and to the customer's satisfaction. Roberts admitted that at least where a crewmember was intoxicated, Black had the authority to remove that man from the job. The evidence shows that in the instant case Black made arrangements for Red's. I believe it to be most improbable that Loper would have immediately telephoned Respondent to apply for a job and falsely put himself in the unfavorable light of having been discharged . If he were concocting a story, it seems to me that he would have concocted one that put him in the best possible light. In reaching the conclusion to credit Loper in this regard, I have not relied on the corroborating testimony of Mrs. Loper. Accordingly it is unnecessary to give consideration to Respondent's contention advanced at the trial, but expressly abandoned in its brief (p. 36), that Mrs. Loper, as the wife of Loper, was incompetent to testify in a case to which he was a party. Rather, Respondent urges that her testimony should be stricken because , although the rule had been invoked, she remained in the room while other witnesses testified . Although I find that Respondent waived the objection by relying solely on the alleged incompetency of the witness until after she had testified on direct and cross, I regard the issue as moot because I have not relied on her testimony in making my findings. 17 See Respondent's brief to the court, pp. 44-45. is Filed August 9, 1968, just a few days after the events involved. i9 In my original Decision the exact date was found to be August 6. BOB'S CASING CREWS, INC. 5 the services of the roustabouts on his own, and Roberts made no claim that in doing so Black acted beyond the scope of his authority. Having the authority to hire and fire, I find and conclude that `Black was a supervisor within the meaning of Section 2(11) of the Act. I turn now to the central issue on the remand, namely, whether the conduct of Loper at the jobsite on August 5 and 6 conslitutedconcerted'activity within the meaning of Section 7 of the Act. which was not unprotected.20 That section guarantees that "Employees shall have the right ... to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid and/or protec- tion," and Section 8(a)(1) of the Act makes it an unfair labor practice' for any employer "to interfere with, restrain, or coerce employeesin, the exercise of the rights guaranteed in Section 7." There can be no doubt that when Loper on behalf of or along with his fellow employees , communicat- ed to, the decision they reached that they would not pick up the drill pipe because it was too much work, and to Black that he`had best arrange for relief because Loper and his -fellow crewmembers were leaving the job when they completed the task of laying -down the casing, that Loper and his fellow , crewmembers were plainly engaging in "concerted activity for . . ,mutual aid or protection," with respect to "terms,... or conditions of [their] employment ." N.L,RB. v. Washington Aluminum Company Inc., 370 U.S. 9, supra. The fact that Supervisors Shelton and Black may have agreed that the demands of the crew were justified; and made efforts to procure the services of a relief crew, does `not' `negate the fact that the action of the crew was in furtherance of their protest over the volume of work they might have to perform. As the Supreme Court pointed out in Washington ; Aluminum, that the men may have acted unnecessarily or unwisely is irrelevant to a determination of whether what they did constitutes concerted activity. 370 U.S. at 16. Equally irrelevant is the fact that Supervisors Shelton and Black may have indicated or expressly stated that they were in agreement with the crew's position that they would not pick up the drill pipe . This follows from the fact that- the test is whether theemployees were concertedly protesting conditions regarding wages, hours, or terms and conditions of employment; and not the fact that the employer may regard the protest as meritorious. Although Respondent argues in its brief that the conduct 20 There is no contention, nor does the evidence suggest any reason, why such conduct, if concerted, would be unprotected. here involved was neither , "protected" nor , "concerted," , there is no detailed discussion, nor any reason given for that conclusion. There is no contention, nor-on this record could it be argued that what the employees ` did was;m any way "unlawful, violent, or. in breach of contract." SeeN.L.RB. v. Aluminum Co., supra, at 17, and the cases there cited; nor is there any claim or showing that they left property in a dangerous or unprotected condition . Cf. Morris Fishman & Sons, Inc., 122 NLRB _1436, 1447. Nor in my opinion does. , this case fall within the line of Board decisons , such as Honolulu Rapid Transit Company, 11QNLRB 1806, holding that while employees may strike in furtherance of their concerted activities without forfeiting the protection of the Act, they may not remain on the job and pick and choose the work they will or will not perform in furtherance of a protest over wages, hours, or conditions of employment. Here, the employees completed the task to which they were originally assigned, and Respondent concedes in its'brief (p. 30), that the work of picking up the drill pipe was never assigned to and was not within the scope of the duties of Shelton's crew. Thus, there was no picking or choosing of assigned work that the men wouldor would not perform. " Having found that the conduct of 'Loper and his fellow crewmembers constituted concerted activity protected by Section 7 of the Act, it follows that Respondent's refusal to employ Loper because of that,,activity constituted the interference, -restraint, or coercion ,in the,exercise of Section 7 rights,, which is proscribed by. Section 8(a)(1), of, the, Act. Just as the refusal to employ because of union affiliation, which was involved in Phelps D40Corp. v. N.LR.B., 313 U.S. 177, 181-1 87, was -held to °be a violation of Section 8(a)(3) 'of the Act, by the same ' process of reasoning, a refusal to hire an applicant for-employment because he had engaged in concerted activity for mutual aid or protection must be deemed violative of Section 8(a)(1) of the Act. I so find and conclude. Accordingly, for, reasons heretofore stated, it is recom- mended that the Board adhere to and reaffirm its prior Decision and Order herein which , issued on August 1, 1969 (178 NLRB No. 2)7. and direct Respondent, Bob's Casing Crews, Inc., Odessa, Texas, its, officers, agents, - successors, and assigns, to take the action in the aforesaid Decision and' Order set forth.