Kelso Marine, Inc.

KELSO MARINE, INC. Kelso Marine, Inc., Kel Stress Division and Laborers' International Union of North America, Local 116, AFL-CIO. Case 23-CA-4161 September 14, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 12, 1972, Trial Examiner Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Kelso Marine Inc., Kel Stress Division, Galveston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case, initiated by a charge filed on November 22, 1971 and a complaint issued on January 4, 1972, was tried before me at Galveston, Texas, on February 23 and 24, 1972. In issue is whether Respondent violated Section 8(a)(3) and (1) of the Act in connection with its treatment of 19 employees who left their jobs following Respondent's discharge and refusal to rein- state one of its supervisors. Subsequent to the hearing coun- sel for the General Counsel and for Respondent filed helpful briefs which have been carefully considered. Upon the entire record in this case and my observation of the demeanor of the witnesses, I make the following. FINDINGS OF FACT I THE BUSINESS OF RESPONDENT 7 Respondent is a Texas corporation maintaining its principal office and place of business in Galveston, Texas, where it manufactures and sells prestressed concrete prod- ucts. During the 12 months preceding the issuance of the complaint, which is a representative period, Respondent sold products valued in excess of $50,000 to companies each of which during the same period received in excess of $50,000 for the performance outside the State of Texas of services for customers who also are located outside the State. On the basis of these admitted facts, I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America, Lo- cal 116, AFL-CIO, herein called the Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Issues and Contentions of the Parties It is undisputed that Respondent's discharge on No- vember 3, 1971, of one of its line foremen, Fred Woodards, precipitated a walkout on November 4 of 3 other line fore- men and 19 laborers and that Respondent on and after November 5 refused either to reinstate them or hire them back as new employees-except that it did reinstate and permit one employee, Felipe Duran, to work for approxi- mately anthour on November 8 before terminating his em- ployment. It is the General Counsel's contention that the underly- ing cause of the employees' walkout on November 3 was their dissatisfaction over their working conditions, particu- larly their unsafe working conditions, and ' that Respondent's discharge of Woodards and refusal to take him back triggered the walkout because Woodards had sought to protect the employees against the hazards of their jobs. The General Counsel accordingly asserts that the walkout was protected concerted activity for which the em- ployees could not lawfully be discharged; that Respondent acted unlawfully in refusing their requests for reinstatement made prior to the time they had been replaced, in requiring them to file applications as new employees and in thereafter failing and refusing to hire any of them. With respect to employee Felipe Duran, the General Counsel contends that Respondent unlawfully discharged him on November 8 af- ter he had been reinstated and worked about an hour, be- cause he disclosed to Respondent that he, along with the other employees, had gone to the union hall and signed a union card following the walkout on November 4. Respondent asserts that the employees who walked out on November 4 quit their jobs and that it therefore had no obligation to take them back either by means of reinstating or rehiring them. It asserts that it did not in fact take them back because they had been replaced before they filed their 199 NLRB No. 3 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applications for employment and because they had left their jobs during a crucial time when Respondent was behind in production. Respondent further contends that even if the employees' action in walking out on November 4 is not construed as a quitting by them of their jobs but, rather, as a strike, their action was nevertheless unprotected because it was in protest against management's action in discharging and refusing to reinstate a supervisor. With respect to em- ployee Felipe Duran, Respondent asserts that it permitted him to return to work on Monday following the Thursday walkout because it believed that in view of his limited un- derstanding of the English language, he did not understand the meaning of what he had done but that upon interrogat- ing him as to where he had gone on Thursday after walking out and learning that he had gone somewhere and signed a paper "against the Company," he was sent home but never discharged. The issues presented are whether the employees who walked off their jobs on November 4 were engaging in a protected concerted activity and, if not, whether Respon- dent was unlawfully motivated in refusing to rehire them as new employees after they requested to be put back to work. Also presented is the question whether Felipe Duran was unlawfully discharged. B. Employee Discontent and Union Activities Preceding Line Foreman Woodards' Discharge The 19 employees on whose behalf the complaint was issued worked as laborers in groups of about 5 or 6 each under 1 or the other of Respondent's 4 line foremen. These line foremen, Fred Woodards (whose discharge precipitated the walkout on November 4), John E. Hall, Gerald L. Pay- ton, and Percy Saxton, received their work orders each morning from the superintendent, set up the line and direct- ed and worked with their men in making Respondent's prestressed concrete products. They had authority effective- ly to recommend the hire and discharge of members of their respective gangs. The record leaves no doubt that for some time prior to Woodards' discharge, the laborers had voiced strong dissat- isfaction over the lack of safety in their working conditions and over the lack of respect shown to them by Bob Huffman while he was the general foreman and after he was promot- ed to the position of superintendent when the former super- intendent, Bill Darlington, left Respondent's employ in late October 1971. It is also clear that the line foremen sided with the men in their gangs and against higher management in these disputes or at least acted as conduits through which the employee complaints were brought to management's attention. Respondent had a very high industrial accident rate. Its records show that between August 3 and October 21, 1971, nine employees received first aid in Respondent's dispen- sary because of injuries and that during this same period- between August 20 and October 20, 1971-eight emplolyees were sent to a doctor because of occupational injuries. Six 1 There is only one duplication on these two lists, the name of D. Newton, who was treated for a flash burn in both eyes (G.C. Exh. 4 and 5(a) and (b)) on October 13 and 14. Thus, during the 3-month period a total of 16 out of Respondent's total complement of between 24 and 31 laborers had been injured. of these eight were either. permanently terminated or transferred to other jobs following their injuries. Foreman Woodards himself lost 3 days from work because of an injury he received on October 15 and was still under a doctor's care at the time of his discharge on November 3.2 Line Foremen Woodards and Payton on one or more occasions had gone to General Manager Porter Stinnett to complain about safety conditions and the manner in which Huffman was treating the employees. According to Payton, about a month or a month and a half prior to Woodards' termination, the two of them had a conference with Stinnett on those subjects. They told Stinnett, according to Payton, that the men were "ready to quit on account of the job wasn't safe and on account of Bob Huffman's attitude. He don't know how to talk to nobody, and most of the men were ready to go. But we told them we was trying to hold the men down. That was really the cause of the meet- ing."3 On that occasion Stinnett said that Respondent was going to have to start having safety meetings because there were too many men getting hurt. Either on that occasion or at an earlier date, which Stinnett placed as in late July or August, after Woodards and Payton had complained that some of the men were going to quit because of the way Huffman had been talking to them, Stinnett told Woodards and Payton that Darlington was the superintendent and that as long as Darlington was getting production and doing it economically, he, Stinnett, would not interfere with what Huffman was doing." On October 21 there occurred an accident which fur- ther upset the laborers and their line foremen. Their work involved the stressing of cables in forms between bulkheads, the spreading of spiral, the tying of cables and spiral with wire, and the pouring of cement into the forms. Since about 30,000 or 35,000 pounds of stress had to be applied to the cables in making the prestressed concrete products, the breaking of a cable or bulkhead could be extremely danger- ous. A cable and a bulkhead broke on October 21 as stress was being applied and steel and cable flew out of the form and into the air. Two of the men were hit by a jack and were hospitalized. At that time a number of the laborers as well as Line Foreman Hall threatened to quit but Woodards and Payton talked them out of it. Payton then talked to Superin- 2 Employee Gabriel testified that when Woodards left early on November 3, he assumed that Woodards had gone to see his doctor because he was still under a doctor's care. 3 According to Payton, Huffman would curse the men and did not treat them with respect. "Although Payton and Stinnett could have been testifying about different occasions, I believe that they were referring to the same occasion. Their versions are not necessarily inconsistent and I find that the statements made were substantially as described by both men. 5 After a cable, broke in May or June, General Manager Stinnett gave instructions to then Superintendent Darlington that the laborers should not work in the form beds at any time while a cable was being stressed, as General Foreman Huffman had been requiring the men to do. Line Foremen Payton, Hall, and Saxton, as well as employees Gabriel and Victorian, testi- fied that Huffman continued thereafter to order that work on beds proceed while cables were being stressed . Stinnett conceded that his instructions are not always carried out and that he did not check to ascertain whether they were carried out in this respect. Huffman, however, denied that he continued to require the men to work on beds while stress was being applied. I am satisfied that Huffman did, at least upon some occasions following Stinnett's instructions to Darlington, order that the men work at spreading spiral or tying cables already stressed while other cables in the bed were being stressed in order to prevent the men from being idle. KELSO MARINE, INC. tendent Darlington and obtained his permission to let the men go home for the day. Employee Clark Gabriel, one of those who had narrow- ly escaped injury when the bulkhead broke on October 21, had only recently returned to work after a 6- or 7-month absence because of injuries incurred on the job and was still hopping as he moved around. Some of his fellow workers who had been frightened by the accident requested Gabriel to talk to Huffman about their safety problem and he did talk to Huffman a few days after the accident, after Line Foremen Saxton and Payton got Huffman's consent for the meeting. Huffman told Gabriel not to worry, that manage- ment was "working on those things" and that they were "bound to improve." Gabriel, however, regarded Huffman as having displayed a "nasty attitude" and walked away. Gabriel and other laborers with whom he lunched then decided to try to get a union to represent them. Gabriel had belonged to Local 116, the Charging Union, at a previous place of employment and he took the lead in getting signa- tures on a yellow sheet of paper which all understood to be a petition to get a union to represent them. He was assisted by Line Foreman Payton who obtained a list of the names of all the laborers from the timekeeper and helped pass the so-called petition around. According to Gabriel's credited testimony, he and the other employees discussed their ina- bility to have any meaningful discussion with General Man- ager Stinnett or Huffman and the fact that Huffman "would hire a guy one day and fire a guy the next day. All he wanted was to get the work done. That is what we did when the cable broke" and that "everybody agreed we needed a un- ion or it was going to end up somebody got killed." The four line foremen also agreed that a union was needed. Payton credibly testified that the discussion was to the effect that the men needed a union "for the safety of the men and for the constant firing of the men."6 The petition, containing the signatures of 23 laborers and the 4 line foremen, was delivered to the union office a few days before Woodards' discharge and a union meeting was scheduled to be held on the evening of November 4.1 C. Woodards' Discharge and the Walkout on November 4 At about 3:50 p.m. on November 3 Line Foreman Fred Woodards was discharged by Superintendent Huff- man. Even before he became superintendent about a week earlier, Huffman had been displeased with Woodards' work performance and believed that he did not get enough pro- duction from his gang. Huffman testified that on November 3 he found Woodards in a "bull session" with members of his crew many times and "once I led him by the hand back over to his crew and told him to stay there and do a certain 6 Very few of the employees who testified had been employed as long as a year and Huffman's testimony regarding the tenure of the replacements for the employees who walked out on November 4 shows that a substantial number of those were terminated shortly after being hired. 7 One employee, Cedric Charles, who worked as a heavy equipment opera- tor rather than as a member of one of the gangs directly engaged in the prestressing operations, and had authority to fire or recommend the firing of swampers who worked under him, testified that he knew of no talk among any of the men about safety conditions and that he signed the petition to get a union in only after Gabriel represented to him that a union was needed to get more money I credit Gabriel 's testimony that he never mentioned money as a reason for trying to organize the plant Charles' testimony in this respect is not consistent with that of any other witness. 9 job." General Manager Stinnett on that same day had also noticed Woodards and a member of his crew "goofing off" and just before leaving on a trip for Houston, had re- quested Huffman to "straighten them out." When handing Woodards his termination check at 3:50 p.m., Huffman told him that Huffman "didn't need him any longer." Woodards replied that he "didn't need the questions and reasons," and left the plant. Huffman then called Line Foreman Payton into his office, asked him the number and names of the members of his crew and told Payton, "You know, I fired Fred." After work that day Payton and Line Foreman Saxton met out- side the plant in the presence of several of the employees to discuss the discharge and decided that if Woodards was not permitted to work, they would not work either. They decid- ed, however, to talk to General Manager Stinnett before taking any final action. On November 4 as the laborers arrived for work those who had not already learned of Woodards' discharge were informed of it and were told by Payton and others that no one was going to work until General Manager Stinnett had been consulted about putting Woodards back to work. Woodards was present in the group. Before Stinnett arrived Huffman had been told by Line Foreman Saxton, "There will be nobody working today, Boss, unless you put Fred back to work" and that all were waiting "to get some kind of consideration" from Stinnett. After Stinnett arrived and was informed by Huffman about what had happened, Woodards, followed by the other line foremen and the laborers, came into the plant yard near the office and Woodards asked why he had been fired. Huffman explained that Woodards was not getting the work done. In a confrontation which lasted about 10 minutes, Stinnett supported Huffman's discharge of Woodards and Huffman at least twice requested the men to punch in and go to work. Finally, when Payton asked Huffman if he was going to put Woodards back and Huffman said "No," Pa ton told the men, "Let's go" and all left the plant yard. t The employees and line foremen then proceeded to the union hall and talked to International Representative Wayne Johnson and Reverend Victor Stephens, president of Local 116. They were given union cards which all of them apparently signed and were advised to go back to work and to select a delegation of three to speak for them. The men selected Line Foremen Saxton, Payton, and Hall to speak for them. Stephens told these three men "to talk to the main man" to see if all of the men could go back to work "regard- less of whether they accepted Woodards back or not "9 s There was much testimony in the record about what was said by manage- ment and the employees at this confrontation, not all of it consistent. The above findings are based upon what I believe to be a preponderance of the credible testimony I do not credit the testimony of Line Foremen Payton and Hall and of employee Dock that something was said during this ex- change about safety conditions Nor do I credit Huffman's testimony that Payton or Saxton said the employees were quitting-though in the context in which the walkout occurred and what followed immediately thereafter, I would not regard it as significant even if they had referred to their action as quitting A concerted walkout or strike by unorganized employees is often referred to by them as quitting when their action is actually merely a cessa- tion of employment as a result of a labor dispute within the meaning of Section 2(3) and (9) of the Act N L R B v Phaostron Instrument and Elec- tronic Co, 344 F.2d 855, 858 (C A 9) 9 On Monday, November 8, the Union filed a representation petition with the Board's Regional Office in Houston , Texas, and on the same date a copy Continued 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Respondent's Refusal On and After November 5 to Per- mit the Employees to Return to Work 2. The reinstatement and subsequent discharge of Felipe Duran on November 8 1. Applications by the employees to return to work Pursuant to the instructions from Union President Stephens, Line Foremen Payton, Saxton, and Hall went to the plant at about 7:30 or 7:45 Friday morning, November 5, and told Huffman and Stinnett that they represented the men, that they had a meeting with the men, and that all were willing to come back to work on Monday morning with or without Woodards. Huffman replied, "Let the men repre- sent themselves one at a time . If they want a job, that is the way to do it." He also stated that he did not want the men back, explaining that the men had walked out on him and that it would not happen again. Stinnett stated that he was standing behind Huffman 100 percent.10 The three line fore- men then informed the other men about what had hap- pened. On the same day a number of the employees went back individually and talked to Huffman about going back to work. Huffman told one of them, Victorian, that if the rest of the employees came in and talked to him like Victorian did, he would hire them back one by one, but that each would have to file an application for employment and start as a new employee. He told Gabriel that he wanted to see everyone individually and that he would talk to Gabriel on the following Monday morning, November 8, about his return to work. He told Dreyfus that he would have to file an application and start as a new employee if hired and when Dreyfus told Huffman he would have to start looking for another job if he could not get his job back, Huffman told him that Huffman could hire him back and that Drey- fus should come in Monday and talk to him about it. Huff- man told Lee to come in Monday and he would see about Lee going back to work. Huffman made it clear to all the employees he talked to on Friday that before they could- be taken back, they would have to file applications for employ- ment and come back as new employees. Huffman estimated that eight or nine of the employees came in individually to talk to him on Friday. On the following Monday morning, November 8, most of those who had talked to Huffman on Friday as well as a number of other employees returned to the plant and received applications for employment. Huffman instructed these men to fill out the applications and return them on Tuesday." of this petition was mailed by the Regional Office to Respondent. Respon- dent received this on Tuesday or Wednesday. On November 9 the Union wrote Respondent claiming to represent a majority of its employees in a production and maintenance unit, stating that it was informed that Respon- dent had refused employment to approximately 21 of its employees who had engaged in concerted activities and making unconditional and continuing ap?lications on their behalf to return to work. ° The above findings are based upon the composite and credited testimo- ny of Payton, Saxton, and Huffman . Huffman testified that he did not believe Woodards' name was mentioned during the interview , but even if it was not, I am satisfied that Huffman and Stinnett understood that the men, through the three line foremen , were making unconditional applications to return to work. 11 Among those employees who reported to the plant on Monday morning Felipe Duran, a Spanish speaking employee who, Huffman believed, could not understand English very well, was treated differently than the other employees. When he came in Monday morning, November 8, and asked if he could punch in and go to work, Huffman permitted him to do so. Huffman testified that on the preceding Thursday morning when Huffman said to all the assembled employ- ees "Let's go to work," he believed that Duran was follow- ing him into the plant but . when he looked around, Woodards had him by the arm and that Duran then told Huffman, "Fred [Woodards] said there would be no work today."12 In discussing Duran with General Manager Stinnett on Friday they decided that because of his lack of understanding of the English language, he probably did not know what the walkout was all about. For this reason and because he was a good worker, Duran was permitted to go to work on Monday without filling out an application. When Stinnett noticed Duran working, he came to Huffman and inquired whether Huffman had asked Duran what had happened on Thursday. Huffman told Stinnett that Duran had reported that he and the other employees had gone to someplace in town and signed papers and got- ten drunk, but that Duran did not know what kind of papers they had signed. Stinnett then suggested that Duran be called to the office so that they could find out what he had signed." There is a conflict in the testimony as to what occurred in Stinnett's office. Duran's account, given through an inter- preter as well as in his own broken English, was in convinc- ing detail and I am satisfied that it was substantially accurate. According to Duran, after he had worked at least an hour that Monday, he was summoned to the office, where the following took place (testimony without use of interpreter): Well, I go to the office and Mr. Porter [Stinnett] say in a little bit, "Where are you going three or four days ago?" I say, "Going to the Commission."14 He say, "What are you doing over there?" I say, "I signed a white paper for the Union." were: James Victorian, Stanley Dreyfus, Dennis Byrd , Bill Lee, Robert Mar- tin, Charles Crockett, Lawrence Werdlow, III, O. D. Dock, Albert Copeland, C. Brown, T. Hayes, Charley Fuller, and Felipe Duran. Two of these, Martin and Crockett, did not take applications because they were unwilling to start as new employees at reduced rates of pay and with the loss of their accrued vacation rights. Werdlow was not given an application and inquired as to the reason when he returned on Tuesday, as shown infra. Duran, as will be shown, was permitted to punch in and work for a little more than an hour before being sent home. Another employee, Gabriel, though at the plant on Friday, did not report back on Monday because he heard what had happened to Duran. 12 Huffman later changed his testimony by stating that Woodards had told Duran that Huffman had said there would be no work. It is this latter version that Huffman related to Stinnett on Friday. 13 The above findings are based upon Huffman 's testimony, corroborated in some but not all respects by that of Stinnett. 14 Testifying through the interpreter, Duran used the words "offices of the Labor Union" instead of "the Commission ," but I believe it more likely that speaking in English to Stinnett, he used the words "the Commission" because he may not have been familiar with the English equivalent of "offices of the Labor Union." KELSO MARINE, INC 11 He say, "All right, all right, Felipe, you don't have no more work.... .. I said, "What? I got eleven months work here. Next month I take vacation." He said, "I'm sorry," but I signed papers against the Company. And I said, "Thank you." And go home. Duran further credibly testified (through the interpreter) that he was driven home by Respondent's timekeeper, who told Duran's wife to call the Company to ascertain what had happened.t5 Shortly thereafter, according to the credited testimony of Duran's wife, Maria, she telephoned Huffman and asked him why her husband had been sent home from work. Huff- man replied that Duran "had signed some papers against the Company, so he couldn't just go in and walk back to work."t6 It is clear that Respondent did reinstate Duran when he returned to work on Monday morning. I find that by thereafter sending him home upon learning that he and the other employees had signed papers "for the Union," Re- spondent discharged him for engaging in protected, con- certed, and union activity, in violation of Section 8(a)(3) and (1) of the Act. But even if Respondent did not then know that the papers signed were "for the Union," and considered the papers only as "against" Respondent, as Stinnett described them, Respondent's discharge of Duran for engaging in that concerted activity was nevertheless in violation of Section 8(a)(1) of the Act. 3. Respondent's refusal to take back any of the other employees who walked out None of the employees who returned their applications to Huffman on Tuesday morning pursuant to his instruc- tions or any of the other employees were ever taken back. Those who testified gave the following versions of what happened. Victorian testified that on Tuesday morning he turned in his application to Huffman, "then he told me he couldn't hire me back, something concerned the Union, but he would like to know who came up with the Union, like to know who the guy was that came up with the Union." Dreyfus testified that Huffman took the application of him- self, Byrd, Dock, Hayes, and two other employees and said, 15 Stinnett testified that during this interview Duran did not mention the Union or disclose the nature of the papers which Duran and the other employees had signed and that before sending him home, Stinnett told Du- ran, "Felipe, we don't know whether you should be here or not if you signed a paper against us And if we know what it is, maybe we can straighten it out." According to Stinnett and Huffman , Duran was sent home so that he could discuss the situation with his wife, who, Duran said, knew the nature of the paper which he had signed (The "white papers" referred to by Duran were in fact union cards, such as that introduced in evidence as G C Exh 3, the card signed by Duran ) 16 Huffman's version of this telephone conversation is as follows "She asked me if I was planning to put Felipe back to work permanently I said, 'No' And she hung up " Huffman did not explain why he told Mrs Duran that he was not planning to put her husband back to work permanently If, as he and Stinnett testified , they sent Duran home in order to find out the nature of the paper Duran had signed, it does not sound plausible that he would have made such a statement to Mrs Duran I do not credit Huffman's version of the telephone conversation or his and Stinnett's asserted reason for sending Duran home "He was sorry he couldn't hire us back, something had come up, but he would hold our applications and if anything come up he would let us know ... couldn't hire us because of the Union." Dreyfus applied again about a month later and Huffman said "he had to stay with his convictions." According to Lee, who was in the group with Dreyfus, Huffman told them: "I can't hire you back'on account of the union local.... Later on I will let you know something." Dock, also in the same group, testified that Huffman "told us that he couldn't hire us back on account of the Union and the Labor Relations Board. He said he had talked to a lawyer at the Union and the Labor Relations Board.... And told me if anything come up that he would let us know." Werdlow, who had not received an application on Monday, testified that he returned alone on Tuesday morn- ing and that as he arrived, he heard Huffman explaining to some of the employees that "he had some difficulties in the office and he couldn't do any hiring right then." After the other employees had left, Werdlow asked why Huffman had not given him an application on the preceding day and Huffman replied "that was the reason, because of the diffi- culties in the office." I am convinced that Huffman was referring to the difficulties in the office created by Duran's disclosure Monday morning that all the employees had signed "papers for the Union." Huffman, on the other hand, testified that he told all the employees who returned on Tuesday that he was not going to hire them back and that he did not think he told any of them why because he was very busy and did not have time to talk to them. He specifically denied telling any of them he was not hiring any of them back on account of the Union. Respondent attacks the credibility of those employees who testified that Huffman mentioned the Union in con- nection with telling them that Respondent was not going to take them back. Although most, if not all, of those so testify- ing were in the same group and presumably all in the group heard what Huffman said to the group, their testimony as to what he said varied and was not entirely consistent. The fact that each did not remember exactly the same thing, however, does not necessarily mean that they were fabricat- ing their stories. Aside from the fact that witnesses often tend to put their own interpretations on what they hear and testify to what they understand rather than to what is actu- ally said, it is not unusual for one witness to remember one portion of what may have been said and for another to remember another portion. Although I believe that Huff- man did mention the Union to at least one or more of the employees as having something to do with his not putting any of the employees to work at that time, I do not regard it as important to the issues here presented whether he did or not. His actions speak louder than words. I cannot believe that Huffman on Friday would have encouraged the employees to come back Monday for appli- cations and then instructed those to whom he gave applica- tions to fill them out and return them Tuesday morning if he had no intention of ever rehiring any of them. Huffman's action in rejecting the collective request made by the three line foremen, as the men's representatives, that Respondent take back all the men on Monday morning and his state- ment that if the men wanted ajob they should apply one at a time; his subsequent statement to Victorian that he would 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire them back one by one as new employees; his request under me and left me in the lurch when I had produc- to Dreyfus on Friday that the latter come in Monday morn- ing and talk about a job after Dreyfus had told Huffman he would have to start looking for another job if he could not get his old job back; and Huffman's statement to Lee that the latter should come in Monday morning and see about going back to work, all indicate that on Friday Huffman was intending to punish the employees for having walked out on Thursday by requiring them to file applications and return as new employees in competition with other appli- cants, but at the same time that he intended to take them back eventually as he needed them. What happened to cause him to change his mind be- tween Friday and Tuesday morning? I am convinced that it was Duran's disclosure that all the men had taken collec- tive action against Respondent by signing the papers which he described in the interview with Huffman and Stinnett on Monday morning. Whether Huffman and Stinnett knew the men had actually joined the Union is immaterial. They knew that the men had signed "papers for the Union." My conclusion in this respect is fortified by the incon- sistent and less than candid testimony of Stinnett as to the reasons Respondent did not take back the 19 complainants. In response to the question why Respondent did not take back the applicants even though they offered to return as new employees, he incorrectly stated, "We had a complete new crew by Tuesday morning" and that they were working on Tuesday.17 Moreover, there was an extremely large turn- over among the replacements. Respondent's records show that at least 16 of the 31 replacements hired between No- vember 5 and November 15 left voluntarily, never showed up for work or were fired shortly after they were hired. In an attempt to explain why none of the strikers were hired for these vacancies, Stinnett stated that Respondent calls employment agencies when it needs help and hires the first applicant who comes in if he appears qualified and that, although Respondent keeps the applications on file, it does not refer to these applications very much because its expe- rience has been that applicants have found other work with- in 2 or 3 weeks after they filed their applications and are no longer available to Respondent. This explanation clearly was not applicable to the strikers who brought their applica- tions in on Tuesday. morning pursuant to Huffman's in- structions, for Respondent continued throughout Tuesday and Wednesday to hire a substantial number of laborers other than the strikers and to hire others thereafter. Later, and somewhat inconsistently it seems to me , Stinnett testi- fied as follows: ... I thought if we hired him [Duran] back we might have to hire them all back even though he didn't know what was going on. Trial Examiner: Does that mean you did object to hiring the rest of them back? The Witness: Yes, yes, ma'am, I did. I told Bob Huffman, he had given them applications Monday, and I said, `Bob, if they were my employees working 17 Respondent's records show that 2 new employees were hired on Novem- ber 5 and started working, one on the 8th and the other on the 9th of November, 15 were hired on November 8 and started working on November 9, and 5 were hired on November 9 and started working November 10. Within less than a week thereafter nine more employees had been hired and started working. tion to get out, I don't believe I would hire them back. Q (by Mr. Linton) When was that you told Mr. Huffman that? A Monday or Tuesday, one of those days. Stinnett's last explanation is also the reason assigned by Huffman. Thus, he testified that he decided not to hire them back because "they knew we were in a bind; we had all these contracts to fulfill, and I felt that a bunch of men that would quit when I fired one foreman, they would quit again and I sure didn't need them.... They quit me and I didn't want to take a chance on them quitting me again." The latter reason-that the employees had left Respon- dent in the lurch when it had production to get out-would appear more applicable to Respondent's decision on Thurs- day or Friday not to reinstate them. It does not explain why Respondent changed its mind on Monday or Tuesday about rehiring them as new employees, as it indicated on Friday and again on Monday morning that it intended to do. I can only conclude that but for Duran's disclosure on Monday morning that all the employees had signed "papers for the Union," Respondent would have processed their applications and rehired them on and after Tuesday, No- vember 9. E. Analysis and Conclusions Let us consider first Respondent's contention that it was under no obligation to take any of the 19 employees back because they had quit their jobs on November 4. By this, Respondent apparently contends that the employees permanently quit their jobs, for every work stoppage or strike involves a temporary quitting of work. There is no basis in the record for inferring that the employees were permanently quitting. When they walked out of the plant yard, they went to the union hall to meet with the union representatives (though their first union meeting was not scheduled until that evening). There they signed union cards listing Respondent as their employer. Acting pursuant to the union president's advice and through their chosen com- mittee of the three line foremen, they then requested their jobs back on the very next day. This action belies any inten- tion on their part of permanently quitting their jobs. I find that the employees were clearly engaging in a concerted work stoppage or strike in protest against Respondent's discharge and refusal to take back Line Foreman Woo- dards.ls Next Respondent, through its counsel, contends that even if the employees did not quit their jobs, they engaged in a strike in protest against the discharge of a supervisor and that such a strike is not a protected concerted activity. This argument is based upon the assumption that the em- ployees were protesting the exercise by Stinnett and Huff- man of their management prerogatives. Aside from the fact, however, that neither Stinnett or Huffman claimed to be is If the employees were engaging in a protected concerted activity, as I find .they were, Respondent could not lawfully deny them reinstatement because they walked out even if Respondent honestly believed they had permanently quit their jobs. N.L.R.B. v. Burn up and Sims, Inc., 379 U.S. 21. KELSO MARINE, INC. 13 motivated by that reason in refusing to take the men back- but rather by the fact that the employees had left Respon- dent in a lurch when it was behind in its production-I am persuaded that the cessation of their employment on No- vember 4 was in connection with a current labor dispute as that term is defined in Section 2(9) of the Act and consti- tuted concerted activity for the employees' mutual aid and protection within the meaning of Section 7 of the Act.19 In appraising the nature of the employees' action, one cannot fairly ignore the explosive situation which existed at the time of Woodards' discharge and the sympathetic cord binding the employees to Woodards as a fellow workman. As already noted, the unsafe working conditions under which the employees and their four line supervisors were required to work, their lack of job security and the disre- spectful treatment accorded them by Superintendent Huff- man, had resulted in the men threatening to quit upon two occasions not long before Woodards' discharge, and had caused them, through Woodards and Payton, to protest to General Manager Stinnett. These conditions had also re- sulted in the men, including their line foremen, seeking union representation in an attempt to improve the situation. The line foremen were minor supervisory personnel who worked closely with their gangs and lunched with them. The employees' grievances were also their grievances. The dan- gerous working conditions and the lack of consideration show by management for their problems affected all of them equally. Woodards had only recently suffered an inju- ry on the job which incapacitated him for 3 days and he was still under a doctor's care at the time of his discharge and at the time Superintendent Huffman subjected him to the indignity of taking him by the hand, leading him back to his crew, and telling him to stay there. Furthermore, the very reason assigned for Woodards' discharge-that he was not getting enough work out of his gang-was in fact also a complaint by management that the employees who worked with Woodards were themselves not producing to Respondent's satisfaction and was notice to them that they would have to work harder thereafter. Accordingly, for this reason too, the discharge of Woodards was a matter of legitimate interest to the employees and had a substantial impact upon their own working conditions. As the Board stated in Plastilite Corporation, 153 NLRB 180, 182, 183-184, enforced in pertinent part, 375 F.2d 343 (C.A. 8), wherein a strike was precipitated by the discharge of a supervisor: ' We have consistently held ... that conditions of em- ployment are involved, and a "labor dispute" exists, if the supervisor's identity and capability have an impact on the employees' job interests. 3 s * * * When a "labor dispute" exists, the Act allows employ- ees to engage in any concerted activity which they de- cide is appropriate for their mutual aid and protection, 19 In reaching this conclusion I have not given any weight to the testimony of several of the employees that they walked off the job on November 4 because of unsafe working conditions or because , as Victorian expressed it, they felt that Woodards "was the only safety man on the yard " Although all the employees and their line foremen had been greatly concerned about the hazardous working conditions, I doubt that Woodards had sought any more than the other line foremen to protect the employees from injuries. including a strike, unless, unlike the situation here, that activity is specifically banned by another part of the Statute, 1° or unless it falls within certain other well- established proscriptions." 3 Dobbs Houses, Inc, 135 NLRB 885; Guernsey-Muskingum Electric Cooperative, Inc, 124 NLRB 618, Ace Handle Corporation, 100 NLRB 1279, 1290, Container Mfg Co, 75 NLRB 1082, Phoenix Mutual Life Insurance Company, 73 NLRB 1463 10 See, e.g., Section 8(b)(1)(B) of the Act, which prohibits a labor organization from restraining or coercing an employer " in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances" It does not appear from the record that Lucore was such a representative it E g., strikes which are unprotected because they are otherwise unlawful (Southern Steamship Company v N L R B, 316 U S 31), vio- lent (N LR B v. Fansteel Metallurgical Corporation, 306 U S 240), or in breach of contract (N L R B v Sands Manufacturing Co, 306 U.S. 332), and activities which are "indefensible" because they evidence a disloyalty to the employer (N L R B v Local No 1229, International Brotherhood of Electrical Workers, 346 U S. 464, 477) See also, N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 292 F.2d 941, 947 (C.A. 1), wherein the court expressed the view that a strike in protest against the discharge of a minor supervisor, such as the line foremen here, who has no au- thority to represent management in collective bargaining or the adjustment of grievances, is protected concerted activity just as would be a strike in protest against the discharge of any one of the employees. The Court of Appeals for the Fifth Circuit in Dobbs Houses, Inc. v. N.L.R.B., 325 F.2d 531, 538, although refusing to enforce the Board's Order because it believed the means selected by the waitress em- ployees-a walkout during the dinner hour-"was not rea- sonably related to the ends sought to be achieved," never- theless also recognized that the discharge of a supervisor could be within the employees' legitimate concern and a protected activity Z0 Since, as I have found, the walkout by the employees on November 4 was a protected concerted activity, the em- ployees were entitled to be treated as economic strikers. That is, they were entitled to reinstatement, unless already replaced, when on November 5 they made unconditional offers, through their committee of three line foremen, to return to work. And even those, if any, who had been re- placed (two at the most) were entitled to be placed on a preferential list and offered reinstatement as replacements left. The Laidlaw Corporation, 171 NLRB 1366, enfd: 414 F.2d 99 (C.A. 7), cert. denied 397 U.S. 920. By rejecting their applications made through their chosen representatives and refusing to reinstate them, Respondent in effect discharged them, in violation of Section 8(a)(1) of the Act. Even if, however, the employees are not considered as having engaged in a protected concerted activity when they walked out, as I have found they were, they would still be 20 The Board in Plastdite Corporation, 153 NLRB 180, 183, stated that it respectfully disagreed with "any rule which would base the determination of whether a strike was protected upon its reasonableness in relation to the subject matter of the `labor dispute."' In this connection see also N L R B v Washington Aluminum Company, 370 U S 9, 16, N. L R B v Mackay Radio and Telegraph Co, 304 U.S. 333, 344, and N L R B. v Solo Cup Company, 237 F 2d 521, 528 (C A. 8), to the effect that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination as to whether a labor dispute exists and as to whether their protest comes within the protective purview of the Act. So, in this case, the fact that the employees walked out and left Respondent "in the lurch" when it was behind in its production schedules did not render their conduct unprotected and did not warrant Respondent in rejecting their unconditional offers to return to work. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled to consideration for reemployment without discrim- ination because of their action in seeking assistance from the Union. Respondent's action, already described, in re- quiring the employees individually to sign applications for employment as new employees and indicating that it would rehire them as new employees, then changing its mind after learning from employee Duran that they had signed "papers for the Union," clearly constituted discrimination against them because of their union activity and was in violation of Section 8(a)(3) of the Act-as was Respondent's discharge of Duran upon learning what he and the other employees had done. CONCLUSIONS OF LAW 1. By discharging and refusing to reinstate the 18 strik- ing employees listed in Appendix A, because they engaged in protected concerted activity for their mutual aid and protection, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discharging employee Felipe Duran and refusing to employ the 18 employees listed in Appendix A, because of their union activity, Respondent has discriminated in regard to their hire and tenure of employment, thereby dis- couraging membership in Laborers' International Union of North'America, Local 116, AFL-CIO, in violation of Sec- tion 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy Respondent's unlawful discharge and refus- al to reinstate the strikers when they made an unconditional application at about 7:30 or 7:45 a.m. on November 5 to return to work on November 8, and also to remedy its unlawful discharge of employee Felipe Duran on Novem- ber 8, Respondent will be required to offer each of them immediate and full reinstatement to his formerjob, or if his job no longer exists, to a substantially equivalent job, with- out prejudice to his seniority or other rights and privileges and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him. Such backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. (The same remedy would be appropriate to remedy the unlawful refusal to rehire the strikers.) At the hearing Respondent was unable to state whether or not the two employees, D. R. Mickens and H. B. Mills, whom it hired on November 5 and who reported for work on November 8 and November 9 respectively, were hired before the application was made on behalf of the strikers. If they were not hired before the strikers' offer to return to work was made, no issue is presented as to the availability of a job for all the strikers on November 8. If they were hired before this event, however, any question as to the identity of and the backpay due the strikers who might have had to wait for a short period for a replacement to leave, can be determined at the compliance stage of this proceeding. See The Laldlaw Corporation, 174 NLRB 1366. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following recom- mended:21 ORDER Respondent, Kelso Marine, Inc., Kel Stress Division, Galveston, Texas its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate or otherwise dis- criminating against its employees because they have en- gaged in protected strike or other concerted activity for their mutual aid or protection or because they have engaged in union activity. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Felipe Duran and the other employees listed in Appendix A immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-described individ- uals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act. (c) Preserve and,, upon request, make available to the National Labor Relations Board or its agents, for examina- tion and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to effectuate the reinstatement and backpay, provisions of this Order. (d) Post at its operations in Galveston, Texas, copies of the attached notice marked "Appendix B."22 Copies of the notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized repre- sentative, shall be posted by the Respondent immediately 21 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" KELSO MARINE, INC. upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.23 23 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read - "Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A Strikers Who Were Not Offered Reinstatement C. Brown Dennis P. Byrd Albert L. Copeland Charles R. Crockett O. D. Dock Stanley Dreyfus Charlie L. Fuller Clark Gabriel T. Hayes Joseph Jones Ira Kennie Bill Lee Robert B. Martin Roland Pleasant Nelson Ritell George Thompson Joseph Victorian Lawrence Werdlow, III APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, refuse to reinstate or other- 15 wise discriminate against our employees because they have engaged in protected strike or other concerted activity for their mutual aid or protection or because they have engaged in union activity. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL offer to each of the employees listed be- low immediate and full reinstatement to the job he held immediately before November 4, 1971, or if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privi- leges, and we will pay him, with interest, for all wages he lost because of our discharge or refusal to reinstate him. C. Brown Joseph Jones Dennis P. Byrd Ira Kennie Albert L. Copeland Bill Lee Charles R. Crockett Robert B. Martin O. D. Dock Roland Pleasant Stanley Dreyfus Nelson Ritell Felipe Duran George Thompson Charlie L. Fuller Joseph Victorian Clark Gabriel Lawrence Werdlow, III T. Hayes WE WILL notify immediately the above-named in- dividuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. Dated By KELSO MARINE, INC, KEL STRESS DIVI- SION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Dallas-Brazos Building, 1125 Bra- zos Street, Houston, Texas 77002, Telephone 713-226-4296.