Marsden, Hudson T., a Sole Proprietorship

HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 909 Hudson T. Marsden, a Sole Proprietorship, and I WILL NOT in any like or related manner in- Robert Strothers. Case 3-CA-9844 terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by January 5, 1982 Section 7 of the National Labor Relations Act. DECISION AND ORDER I WILL offer to Robert Strothers and Ronald Porter immediate and full reinstatement to BY MEMBERS FANNING, JENKINS, AND their former jobs or, if those jobs no longer ZIMMERMAN exist, to substantially equivalent positions with- On August 6, 1981, Administrative Law Judge out prejudice to their seniority or other privi- D. Barry Morris issued the attached Decision in leges enjoyed, and I will make them whole for this proceeding. Thereafter, Respondent filed ex- any loss of pay they suffered as a result of my ceptions and a supporting brief. having discharged them, with interest. Pursuant to the provisions of Section 3(b) of the I WILL make Joseph Ruffin and John Cole National Labor Relations Act, as amended, the Na- whole for any loss of pay suffered as a result tional Labor Relations Board has delegated its au- of my having discharged them, with interest. thority in this proceeding to a three-member panel. The Board has considered the record and the at- HUDSON T. MARSDEN, A SOLE PRO- tached Decision in light of the exceptions and brief PRIETORSHIP and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and DECISION to adopt his recommended Order. STATEMENT OF THE CASE ORDER D. BARRY MORRIS, Administrative Law Judge: This Pursuant to Section 10(c) of the National Labor case was heard before me in Rochester, New York, on Relations Act, as amended, the National Labor Re- March 13, 30, and 31, 1981. The charge was filed on June 12, 1980, and amended on July 24, 1980. The com- lations Board adopts as its Order the recommended plaint was issued on July 25, 1980, alleging that Hudson Order of the Administrative Law Judge and T. Marsden, a Sole Proprietorship (Respondent), violated hereby orders that the Respondent, Hudson T. Section 8(a)(1) of the National Labor Relations Act, as Marsden, a Sole Proprietorship, Rochester, New amended (the Act). Respondent filed an answer denying York, its officers, agents, successors, and assigns, the commission of the alleged unfair labor practices. shall take the action set forth in the said recom- The parties were given full opportunity to participate, mended Order, except that the attached notice is to produce evidence, to examine and cross-examine wit- substituted for that of the Administrative Law nesses, to argue orally, and to file briefs. Briefs were Judge. filed by the General Counsel and by Respondent. .... ___~~~~_______ ~Upon the entire record of the case, including my ob- Respondent has excepted to certain credibility findings made by the servation of the witnesses, I make the following: Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- FINDINGS OF FACT bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producrs . JURISDICTION Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has maintained its principal office and place of business in Rochester, New York, and is in the APPENDIX business of performing pavement construction and relat- ed services. Respondent has admitted, and I so find, that NOTICE TO EMPLOYEES during the 12 months preceding the issuance of the com- POSTED BY ORDER OF THE plaint, it had provided services valued in excess of NATIONAL LABOR RELATIONS BOARD $50,000 to the city of Rochester. The record contains An Agency of the United States Government evidence, and I so find, that during the 12 months pre- ceding the issuance of the complaint the city of Roches- After a hearing at which all sides had an opportu- ter purchased goods and materials valued in excess of nity to present evidence and state their positions, $50,000, which were shipped to Rochester, New York, the National Labor Relations Board found that we directly from points outside New York State. have violated the National Labor Relations Act, as Respondent contends that there is no basis for jurisdic- amended, and has ordered us to post this notice. tion in this case. In Siemons Mailing Service, 122 NLRB 81, 85 (1958), the Board defined indirect outflow as the I WILL NOT discharge employees for engag- "sales of goods or services to users meeting any of the ing in concerted activities protected under Board's jurisdictional standards except the indirect out- Section 7 of the National Labor Relations Act. flow or indirect inflow standard." The Board also stated 259 NLRB No. 118 HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 909 Hudson T. Marsden, a Sole Proprietorship, and I WILL NOT in any like or related manner in- Robert Strothers. Case 3-CA-9844 terfere with, restrain, or coerce employees in January -, 1982 the exercise of the rights guaranteed them by January 5, iy»2 Section 7 of the National Labor Relations Act. DECISION AND ORDER I WILL offer to Robert Strothers and Ronald Porter immediate and full reinstatement to BY MEMBERS FANNING, JENKINS, AND their former jobs or, if those jobs no longer ZIMMERMAN exist, to substantially equivalent positions with- On August 6, 1981, Administrative Law Judge out prejudice to their seniority or other privi- D. Barry Morris issued the attached Decision in leges enjoyed, and I will make them whole for this proceeding. Thereafter, Respondent filed ex- any loss of pay they suffered as a result of my ceptions and a supporting brief. having discharged them, with interest. Pursuant to the provisions of Section 3(b) of the I WILL make Joseph Ruffin and John Cole National Labor Relations Act, as amended, the Na- whole for any loss of pay suffered as a result tional Labor Relations Board has delegated its au- of my having discharged them, with interest. thority in this proceeding to a three-member panel. The Board has considered the record and the at- HUDSON T. MARSDEN, A SOLE PRO- tached Decision in light of the exceptions and brief PRIETORSHIP and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and DECISION to adopt his recommended Order. STATEMENT OF THE CASE ORDER D. BARRY MORRIS, Administrative Law Judge: This Pursuant to Section 10(c) of the National Labor c ase w as h ea rd b efo r e m e in R o c h est er , New York, on Relations Act, as amended, the National Labor Re- M ar ch 13, 30 , an d 3 1, 19 8 1. T h e charge was filed o n lations Board adopts as its Order the recommended June 12, 1980, and amended on July 24, 1980. The com- hations Board adopts as its Order the recommended plaint was issued on July 25, 1980, alleging that Hudson Order of the Administrative Law Judge and T. Marsden, a Sole Proprietorship (Respondent), violated hereby orders that the Respondent, Hudson T. Section 8(a)(l) of the National Labor Relations Act, as Marsden, a Sole Proprietorship, Rochester, New amended (the Act). Respondent filed an answer denying York, its officers, agents, successors, and assigns, the commission of the alleged unfair labor practices. shall take the action set forth in the said recom- The parties were given full opportunity to participate, mended Order, except that the attached notice is to produce evidence, to examine and cross-examine wit- substituted for that of the Administrative Law nes ses, t o argue orally, an d t o file b ri efs. B ri efs w e re Judge. filed by the General Counsel and by Respondent. Upon the entire record of the case, including my ob- Respondent has excepted to certain credibility findings made by the servation of the witnesses, I make the following: Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- FINDINGS OF FACT bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Productsa 1 JURISDICTION Inc., 91 NLRB 54 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has maintained its principal office and place of business in Rochester, New York, and is in the APPENDIX business of performing pavement construction and relat- ed services. Respondent has admitted, and I so find, that NOTICE TO EMPLOYEES during the 12 months preceding the issuance of the com- POSTED BY ORDER OF THE plaint, it had provided services valued in excess of NATIONAL LABOR RELATIONS BOARD $50,000 to the city of Rochester. The record contains An Agency of the United States Government evidence, and I so find, that during the 12 months pre- ceding the issuance of the complaint the city of Roches- After a hearing at which all sides had an opportu- ter purchased goods and materials valued in excess of nity to present evidence and state their positions, $50,000, which were shipped to Rochester, New York, the National Labor Relations Board found that we di'ectly f r o m points o u ts id e N ew Y o r k S ta t e. have violated the National Labor Relations Act, as Respondent contends that there is no basis for jurisdic- amended, and has ordered us to post this notice. tion in this case. In Siemons Mailing Service, 122 NLRB 81, 85 (1958), the Board defined indirect outflow as the I WILL NOT discharge employees for engag- "sales of goods or services to users meeting any of the ing in concerted activities protected under Board's jurisdictional standards except the indirect out- Section 7 of the National Labor Relations Act. flow or indirect inflow standard." The Board also stated 259 NLRB No. 118 HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 909 Hudson T. Marsden, a Sole Proprietorship, and I WILL NOT in any like or related manner in- Robert Strothers. Case 3-CA-9844 terfere with, restrain, or coerce employees in January -, 1982 the exercise of the rights guaranteed them by January 5, iy»2 Section 7 of the National Labor Relations Act. DECISION AND ORDER I WILL offer to Robert Strothers and Ronald Porter immediate and full reinstatement to BY MEMBERS FANNING, JENKINS, AND their former jobs or, if those jobs no longer ZIMMERMAN exist, to substantially equivalent positions with- On August 6, 1981, Administrative Law Judge out prejudice to their seniority or other privi- D. Barry Morris issued the attached Decision in leges enjoyed, and I will make them whole for this proceeding. Thereafter, Respondent filed ex- any loss of pay they suffered as a result of my ceptions and a supporting brief. having discharged them, with interest. Pursuant to the provisions of Section 3(b) of the I WILL make Joseph Ruffin and John Cole National Labor Relations Act, as amended, the Na- whole for any loss of pay suffered as a result tional Labor Relations Board has delegated its au- of my having discharged them, with interest. thority in this proceeding to a three-member panel. The Board has considered the record and the at- HUDSON T. MARSDEN, A SOLE PRO- tached Decision in light of the exceptions and brief PRIETORSHIP and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and DECISION to adopt his recommended Order. STATEMENT OF THE CASE ORDER D. BARRY MORRIS, Administrative Law Judge: This Pursuant to Section 10(c) of the National Labor c ase w as h ea rd b efo r e m e in R o c h est er , New York, on Relations Act, as amended, the National Labor Re- M ar ch 13, 30 , an d 3 1, 19 8 1. T h e charge was filed o n lations Board adopts as its Order the recommended June 12, 1980, and amended on July 24, 1980. The com- hations Board adopts as its Order the recommended plaint was issued on July 25, 1980, alleging that Hudson Order of the Administrative Law Judge and T. Marsden, a Sole Proprietorship (Respondent), violated hereby orders that the Respondent, Hudson T. Section 8(a)(l) of the National Labor Relations Act, as Marsden, a Sole Proprietorship, Rochester, New amended (the Act). Respondent filed an answer denying York, its officers, agents, successors, and assigns, the commission of the alleged unfair labor practices. shall take the action set forth in the said recom- The parties were given full opportunity to participate, mended Order, except that the attached notice is to produce evidence, to examine and cross-examine wit- substituted for that of the Administrative Law nes ses, t o argue orally, an d t o file b ri efs. B ri efs w e re Judge. filed by the General Counsel and by Respondent. Upon the entire record of the case, including my ob- Respondent has excepted to certain credibility findings made by the servation of the witnesses, I make the following: Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- FINDINGS OF FACT bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producs, I JURISDICTION Inc., 91 NLRB 54 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has maintained its principal office and place of business in Rochester, New York, and is in the APPENDIX business of performing pavement construction and relat- ed services. Respondent has admitted, and I so find, that NOTICE TO EMPLOYEES during the 12 months preceding the issuance of the com- POSTED BY ORDER OF THE plaint, it had provided services valued in excess of NATIONAL LABOR RELATIONS BOARD $50,000 to the city of Rochester. The record contains An Agency of the United States Government evidence, and I so find, that during the 12 months pre- ceding the issuance of the complaint the city of Roches- After a hearing at which all sides had an opportu- ter purchased goods and materials valued in excess of nity to present evidence and state their positions, $50,000, which were shipped to Rochester, New York, the National Labor Relations Board found that we di'ectly f r o m points o u ts id e N ew Y o r k S ta t e. have violated the National Labor Relations Act, as Respondent contends that there is no basis for jurisdic- amended, and has ordered us to post this notice. tion in this case. In Siemons Mailing Service, 122 NLRB 81, 85 (1958), the Board defined indirect outflow as the I WILL NOT discharge employees for engag- "sales of goods or services to users meeting any of the ing in concerted activities protected under Board's jurisdictional standards except the indirect out- Section 7 of the National Labor Relations Act. flow or indirect inflow standard." The Board also stated 259 NLRB No. 118 HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 909 Hudson T. Marsden, a Sole Proprietorship, and I WILL NOT in any like or related manner in- Robert Strothers. Case 3-CA-9844 terfere with, restrain, or coerce employees in January -, 1982 the exercise of the rights guaranteed them by January 5, iy»2 Section 7 of the National Labor Relations Act. DECISION AND ORDER I WILL offer to Robert Strothers and Ronald Porter immediate and full reinstatement to BY MEMBERS FANNING, JENKINS, AND their former jobs or, if those jobs no longer ZIMMERMAN exist, to substantially equivalent positions with- On August 6, 1981, Administrative Law Judge out prejudice to their seniority or other privi- D. Barry Morris issued the attached Decision in leges enjoyed, and I will make them whole for this proceeding. Thereafter, Respondent filed ex- any loss of pay they suffered as a result of my ceptions and a supporting brief. having discharged them, with interest. Pursuant to the provisions of Section 3(b) of the I WILL make Joseph Ruffin and John Cole National Labor Relations Act, as amended, the Na- whole for any loss of pay suffered as a result tional Labor Relations Board has delegated its au- of my having discharged them, with interest. thority in this proceeding to a three-member panel. The Board has considered the record and the at- HUDSON T. MARSDEN, A SOLE PRO- tached Decision in light of the exceptions and brief PRIETORSHIP and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and DECISION to adopt his recommended Order. STATEMENT OF THE CASE ORDER D. BARRY MORRIS, Administrative Law Judge: This Pursuant to Section 10(c) of the National Labor c ase w as h ea rd b efo r e m e in R o c h est er , New York, on Relations Act, as amended, the National Labor Re- M ar ch 13, 30 , an d 3 1, 19 8 1. T h e charge was filed o n lations Board adopts as its Order the recommended June 12, 1980, and amended on July 24, 1980. The com- hations Board adopts as its Order the recommended plaint was issued on July 25, 1980, alleging that Hudson Order of the Administrative Law Judge and T. Marsden, a Sole Proprietorship (Respondent), violated hereby orders that the Respondent, Hudson T. Section 8(a)(l) of the National Labor Relations Act, as Marsden, a Sole Proprietorship, Rochester, New amended (the Act). Respondent filed an answer denying York, its officers, agents, successors, and assigns, the commission of the alleged unfair labor practices. shall take the action set forth in the said recom- The parties were given full opportunity to participate, mended Order, except that the attached notice is to produce evidence, to examine and cross-examine wit- substituted for that of the Administrative Law nes ses, t o argue orally, an d t o file b ri efs. B ri efs w e re Judge. filed by the General Counsel and by Respondent. Upon the entire record of the case, including my ob- Respondent has excepted to certain credibility findings made by the servation of the witnesses, I make the following: Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- FINDINGS OF FACT bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producs, I JURISDICTION Inc., 91 NLRB 54 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has maintained its principal office and place of business in Rochester, New York, and is in the APPENDIX business of performing pavement construction and relat- ed services. Respondent has admitted, and I so find, that NOTICE TO EMPLOYEES during the 12 months preceding the issuance of the com- POSTED BY ORDER OF THE plaint, it had provided services valued in excess of NATIONAL LABOR RELATIONS BOARD $50,000 to the city of Rochester. The record contains An Agency of the United States Government evidence, and I so find, that during the 12 months pre- ceding the issuance of the complaint the city of Roches- After a hearing at which all sides had an opportu- ter purchased goods and materials valued in excess of nity to present evidence and state their positions, $50,000, which were shipped to Rochester, New York, the National Labor Relations Board found that we di'ectly f r o m points o u ts id e N ew Y o r k S ta t e. have violated the National Labor Relations Act, as Respondent contends that there is no basis for jurisdic- amended, and has ordered us to post this notice. tion in this case. In Siemons Mailing Service, 122 NLRB 81, 85 (1958), the Board defined indirect outflow as the I WILL NOT discharge employees for engag- "sales of goods or services to users meeting any of the ing in concerted activities protected under Board's jurisdictional standards except the indirect out- Section 7 of the National Labor Relations Act. flow or indirect inflow standard." The Board also stated 259 NLRB No. 118 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from .. the Board's jurisdiction if its operations are of the magni- Marsden left the jobsite around 9:30 a.m. and did not return until 10:15 a.m. The normal time for coffeebreak tude which would justify assertion of jurisdiction were it return unt 1015 a.m. The ormal time for coffeebreak was around 10 a.m. Strothers testified that it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). " z n w he n t thme th a He dl I have found that Respondent provided services "drizzling" when it came time for the break. He dis- cussed the weather with the other employees and decid- valued in excess of $50,000 to the city of Rochester and c u ss ed t h e weather with the other employees and decid- valued in excess of $50,000 to the cty of Rocester and a a ed to leave the jobsite. Porter testified that he talked to that the city of Rochester purchased goods and materials his fellow employees, Strothers, Cole, Ruffin, and valued in excess of $50,000 which were shipped to Roch- Y oung, abou t the weathero H e redibly testified: ester directly from points outside New York State. Ac- Youn about the weather He edbly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 1. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage. go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage. credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10:15 a.m. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 mony, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at t h e t m e o f b re a k fo r ab o u t 1015 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ec d ed t o le av e t h e b ec a use o f t h e ra 2. Reporting for work on May 19 4. Events of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning at 7:40 a.m. He stated: around 7:45 a.m., at which time it was raining. Strothers I went to Mr. Marsden's house and I walked up and I went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about the he asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it wouldn't give him my license. I didn't have to show rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a.m., at which time it was raining. He stated any of my trucks again and, furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try." 2 In addition, Resp. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from M left t j au .a the Board's jurisdiction if its operations are of the magni- rMarsden left the jobsate around 9:30 a.m. and did not tude which would justify assertion of jurisdiction were it rws u r ou n d 10 a-m. t h e ra tife it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). " riz ng it ca m e time for that He dis- I have found that Respondent provided services cdus z z l nt when it came time for the break. He dis- valued in excess of $50,000 to the city of Rochester and c u sse d t h e weather with the other employees and decid- that the city of Rochester purchased goods and materials e d t o ea v e t h em lo by t es Porter testified that he talked to valued in excess of $50,000 which were shipped to Roch- h u s f el lo w employeesa Strotherse Cole Ruffin, and ester directly from points outside New York State. Ac- Y o u n g, ab o ut t h e w e at h er . H e "edibly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 11. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage,.go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage,.credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10 : 15 a.M. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 m o n y, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight em- find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at t h e tim e o f b r e ak , fo r ab o u t 10-15 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ecid ed t o le av e t h e jobsite b ec a use o f t h e r ain. 2. Reporting for work on May 19 4. E v en t s of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning a t 7 :4 0 a.m. He stated: around 7:45 a.m., at which time it was raining. StrothersIwetoMrMasn'hueadIwlkdpad wo v ^ 7 : 4 5 ^ ^S T '^T ^ m n s ' ^l~~ l went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about theh asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it w g him my l I d rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a~m., at which time it was raining. He stated an o furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try.-In addition, Resp. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from M left t j au .a the Board's jurisdiction if its operations are of the magni- rMarsden left the jobsate around 9:30 a.m. and did not tude which would justify assertion of jurisdiction were it rws u r ou n d 10 a *m. t h e ra tife it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). " riz ng we it came tetfor that He dis- I have found that Respondent provided services cdus z z l nt when it came time for the break. He dis- valued in excess of $50,000 to the city of Rochester and c u sse d t h e weather with the other employees and decid- that the city of Rochester purchased goods and materials e d t o ea v e t h em lo by t es Porter testified that he talked to valued in excess of $50,000 which were shipped to Roch- h u s f el lo w employees Strotherse Cole, Ruffin, and ester directly from points outside New York State. Ac- Y o u n g, ab o ut t h e w e at h er . H e "edibly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 11. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage,.go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage,.credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10 : 15 a.M. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 m o n y, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight em- find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at t h e tim e o f b r e ak , fo r ab o u t 10-15 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ecid ed t o le av e t h e jobsite b ec a use o f t h e r ain. 2. Reporting for work on May 19 4. E v en t s of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning a t 7 :4 0 a.m. He stated: around 7:45 a.m., at which time it was raining. StrothersIwetoMrMasn'hueadIwlkdpad wo v ^ 7 : 4 5 ^ ^S T '^T ^ m n s ' ^l~~ l went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about theh asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it w g him my l I d rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a~m., at which time it was raining. He stated aucks again and, furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try.-In addition, Resp. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from M left t j au .a the Board's jurisdiction if its operations are of the magni- rMarsden left the jobsate around 9:30 a.m. and did not tude which would justify assertion of jurisdiction were it rws u r ou n d 10 a-m. t h e ra tife it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). " riz ng we it came tetfor that He dis- I have found that Respondent provided services cdus z z l nt when it came time for the break. He dis- valued in excess of $50,000 to the city of Rochester and c u sse d t h e weather with the other employees and decid- that the city of Rochester purchased goods and materials e d t o ea v e t h em lo by t es Porter testified that he talked to valued in excess of $50,000 which were shipped to Roch- h u s f el lo w employees Strotherse Cole, Ruffin, and ester directly from points outside New York State. Ac- Y o u n g, ab o ut t h e w e at h er . H e "edibly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 11. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage,.go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage,.credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10 : 15 a.m. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 m o n y, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight em- find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at t h e tim e o f b r e ak , fo r ab o u t 10-15 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ecid ed t o le av e t h e jobsite b ec a use o f t h e r ain. 2. Reporting for work on May 19 4. E v en t s of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning a t 7 :4 0 a.m. He stated: around 7:45 a.m., at which time it was raining. StrothersIwetoMrMasn'hueadIwlkdpad wo v ^ 7 : 4 5 ^ ^S T '^T ^ m n s ' ^l~~ l went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about theh asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it w g him my l I d rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a~m., at which time it was raining. He stated aucks again and, furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try.-In addition, Resp. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from M left t j au .a the Board's jurisdiction if its operations are of the magni- rMarsden left the jobsate around 9:30 a.m. and did not tude which would justify assertion of jurisdiction were it rws u r ou n d 10 a-m. t h e ra tife it was still noneemp. Se Hover.Inc, 24 NLB 59, 54 (179) w as. around 10 a.m. Strothers testified that it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). "rzln"we tcm iefrtebek eds I have found that Respondent provided services cdus z z l nt when it came time for the break. He dis- valued in excess of $50,000 to the city of Rochester and c u sse d t h e weather with the other employees and decid- that the city of Rochester purchased goods and materials e d t o feave the jobste. Porter testified that he talked to valued in excess of $50,000 which were shipped to Roch- h u s f el lo w employees Strotherse Cole, Ruffin, and ester directly from points outside New York State. Ac- 0 "^' ab o ut t h e w e at h er . H e "edibly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 11. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage,.go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage,.credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10 : 15 a.m. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 m o n y, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight em- find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at the time of break, for about 10-15 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ecid ed t o leave the Jobsite because of the rain. 2. Reporting for work on May 19 4. E v en t s of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning a t 7 :4 0 a.m. He stated: around 7:45 a.m., at which time it was raining. StrothersIwetoMrMasn'hueadIwlkdpad wo v ^ 7 : 4 5 ^ ^S T '^T ^ m n s ' ^l~~ l went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about theh asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it w g him my l I d rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a~m., at which time it was raining. He stated aucks again and, furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try.-In addition, Resp. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Siemons (id. at 85, fn. 12) that "users" shall include an 3. Events occurring between 9:30 and 10:15 a.m. enterprise or organization which is itself exempted from M left t j au .a the Board's jurisdiction if its operations are of the magni- rMarsden left the jobsate around 9:30 a.m. and did not tude which would justify assertion of jurisdiction were it rws u r ou n d 10 a-m. Thera tife it was still noneemp. Se Hover.Inc, 24 NLB 59, 54 (179) w as. around 10 a.m. Strothers testified that it was still nonexempt. See Hoover, Inc., 240 NLRB 593, 594 (1979). "rzln"we tcm iefrtebek eds I have found that Respondent provided services cdus z z l nt when it came time for the break. He dis- valued in excess of $50,000 to the city of Rochester and c u sse d t h e weather with the other employees and decid- that the city of Rochester purchased goods and materials e d t o feave the jobste. Porter testified that he talked to valued in excess of $50,000 which were shipped to Roch- h u s f el lo w employees Strotherse Cole, Ruffin, and ester directly from points outside New York State. Ac- Y o u n g, ab o ut t h e w e at h er . H e "edibly testified: cordingly, I find that Respondent's operations satisfy the After we went to the job site, we started working applicable jurisdictional standards, that it is an employer and I asked the guys; you know, it was beginning to engaged in commerce within the meaning of Section 2(6) rain a little harder and they were complaining about and (7) of the Act, and that it will effectuate the policies working in the rain. So I asked if they wanted to of the Act for the Board to assert jurisdiction herein. See continue to work in the rain or go home. St. Francis Pie Shop, Inc., 172 NLRB 89, 90 (1968). Porter further testified that the employees continued to 11. THE ALLEGED UNFAIR LABOR PRACTICES discuss the rain during their break, which took place A. The Issues around 10 a.m. He stated that it was still raining after the break and, accordingly, they decided to leave. The complaint alleges that Respondent violated Sec- While Marsden denied that it was raining that morn- tion 8(a)(l) of the Act by terminating four employees, ing, the other witnesses corroborated the testimony of namely, Robert Strothers, Ronald Porter, Joseph Ruffin, Strothers and Porter. Thus, Cole, Respondent's own wit- and John Cole, for engaging in a concerted work stop- ness and still an employee of Respondent, testified that it page due to inclement weather. The complaint also al- was still "drizzling" at the time the employees left the leges that Hudson Marsden, the sole proprietor of Re- jobsite. Eldred, an inspector employed by an unaffiliated spondent, interrogated an employee by asking him who consulting firm, testified that there was a "light, drizzling was the instigator of the work stoppage. Respondent rain." Laine, another of Respondent's witnesses, and also denies that it violated the Act. The issues, accordingly, still an employee of Respondent, testified that it was are: drizzling that morning. He further credibly testified "all 1. Were the employees discharged for having engaged of the guys got together and decided that it was time to in a concerted work stoppage,.go home because it was raining too hard." He credibly 2. Were the discharges violations of the Act. testified that the employees talked about the rain for 10- 3. Did Marsden interrogate an employee as to who 15 minutes before they decided to leave. In addition, he was the instigator of the work stoppage,.credibly testified that that afternoon he told Marsden that the employees left the job because it was raining. B. The Facts I credit the testimony of Strothers, Porter, Cole, Eldred, and Laine and find that on May 19 there was a 1. Background drizzle or light rain during the relevant period of 8 to During May 1980 Respondent was replacing sidewalks 10 : 15 a.m. 2 I further credit Strothers' and Porter's testi- under contract with the city of Rochester. On May 191 m o n y, corroborated by Laine's credited testimony, and Respondent employed a crew of approximately eight em- find that the employees discussed the weather conditions ployees, consisting of three cement finishers and five la- at the time of break, for about 10-15 minutes. They then borers. The normal work hours were 8 a.m. to 4 p.m. d ecid ed t o leave the Jobsite because of the rain. 2. Reporting for work on May 19 4. E v en t s of May 20 and 21 Strothers reported for work around 7:30 a.m. He testi- Strothers testified that he came to work the next fied that he had a conversation with Marsden at or morning a t 7 :4 0 a.m. He stated: around 7:45 a.m., at which time it was raining. StrothersIwetoMrMasn'hueadIwlkdpad wo v ^ 7 : 4 5 ^ ^S T '^T ^ m n s ' ^l~~ l went to Mr. Marsden's house and I walked up and credibly testified that Marsden "asked me about theh asked me for my license. I asked him why and weather; what did I think. Should we give it a try? And he just said that he wanted my license. I said that I I answered him, yes, give it a try. But, you know if it w g him my l I d rains hard we could just give it up." Porter corroborated my license to anyone but the police. The conversa- this testimony. He credibly testified that he reported to tion went on and he told me, "You will never drive work at 8 a~m., at which time it was raining. He stated aucks again and, furthermore, you're that "Marsden came out and he asked us what wefired." And that was it. thought; give it a try or not. So we decided to give it a try.-In addition, Reap. Exh. 2, which is a report of the National Weather Service, shows weather conditions of fog and drizzle in Rochester on All dates refer to 1980 unless otherwise specified. May 19. HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 911 Porter corroborated Strothers' testimony. Porter also men to take shelter in the doorway of a building, on testified that, after Marsden told Strothers that he was someone's porch, or in the trucks. This was corroborated fired, he instructed Laine, Young, and Boston to go to by Boston, who testified that, in the past, the men waited work. However, he left Porter, Cole, and Ruffin "stand- for up to an hour in the shanty or in the trucks to see if ing there." it would stop raining. If it did not stop, Marsden or his Porter testified that he reported to work on May 21. son would instruct the men to leave. Laine and Porter When asked whether he had any conversation with similarly testified. The testimony is uncontroverted that Marsden at that time, Porter credibly testified: neither Marsden nor his son was at the jobsite on May 19, between 9:30 and 10:15 a.m. I tried to question him, but he wouldn't give me no Marsden also testified that raincoats and rain pants answer. We got to work that morning and he gave were available in the storage wagon. He conceded, how- us our checks, Joe Ruffin, John Cole and Strothers ever, that there were not "enough to go around." On the and told us that there was no work; Joe Ruffin, other hand, Strothers and Porter stated that rain gear myself and Cole. was not provided. Cole testified that there were "some" Marsden testified that he gave Porter a number of rea- ponchos available but that he had never used them. sons for "letting him go." These included smoking mari- Based on the above testimony, I find that in the past juana, drinking, not "operating the truck right," having the men took shelter when it started raining and re- "three flat tires in two weeks" and "stopping at restau- mained there for up to an hour, at which time either rants to have coffee breaks." With respect to Cole and Marsden or his son would instruct them to leave. On Ruffin, Marsden testified: May 19, from 9:30-10:15 a.m., neither Marsden nor his son was at the jobsite. Q. What reason did you give Cole and Ruffin? With respect to whether rain gear was available, Mars- A. Because I don't have any work for them. den conceded that there was not enough "to go around." Q. When did you bring them back? I find that some rain gear was available but that the men A. The following Monday after I had my chance were not accustomed to using it. It is questionable to have a preliminary investigation as to what hap- whether all the men indeed knew that the rain gear was pened. available. In any event, the practice in the past was to Q. As to what happened about what? take shelter and wait for the rain to stop, rather than use A. Them walking off the job. A lot of them were the rain gear. under duress and influenced by other people. They had no choice of transportation back to my shop 6. Strothers' request for a loan and they couldn't hold or conduct any work on requested a loan of Marsden testified that Strothers requested a loan of their own. So they were coerced into leaving the their own. So they were coerced into leaving the $650 on May 16 as a security deposit for renting an job and returning to the shop. apartment. Marsden did not refuse to grant the loan but Similarly, when asked why he discharged Strothers, said that "we would see." Marsden further testified that, Marsden testified that Strothers punched out the time- on, May 19, Strothers asked for an additional loan of cards of the other employees and drank on the job. $500 to help a relative in Florida. Marsden stated that he When questioned as to why he had not discharged refused this latter loan request, at which point Strothers Strothers and Porter prior to May 19, Marsden replied, "threw down his pick and walked away." Strothers testi- "I don't believe I had just cause at that particular time." fied that he requested a loan of $500 on May 16 for pur- I credit Strothers' and Porter's testimony and conclude poses of moving to another apartment. He denied, how- that they, Ruffin, and Cole were discharged because they ever, having any conversation with Marsden concerning walked off the job on May 19. Marsden admitted that a loan on May 19. In addition, Strothers denied having prior to May 19 he did not have "just cause" to dis- any relatives who live in Florida but testified that he and charge Strothers and Porter. While Marsden testified Marsden had a discussion on May 19 concerning the that he did not have work for Ruffin and Cole, he con- riots in Florida. ceded that he rehired them after a "preliminary investi- I credit Strothers' testimony and find that the only re- gation" as to the circumstances surrounding their walk- quest for a loan was that made on May 16 for $500 to be ing off the job. Marsden thus admitted that their dis- used as a security deposit for the rental of an apartment. charge was not, indeed, because of lack of work, but in- I find that Marsden did not refuse to grant the loan but stead it related to their leaving the job on May 19. I con- told Strothers that he "would see" whether to grant it. elude that the various reasons given by Marsden for the discharges, such as lack of work, drinking, improper 7. Interrogation driving, and, in the case of Strothers, failure to furnish Paragraph IV of the complaint alleges that Marsden his driver's license, were pretextual. I find that the actual asked an employee who was the "agitator" and "instiga- reason for the discharges was the employees' leaving the tor" of the May 19 decision to stop work. In this regard, jobsite on May 19. Strothers testified that, after the men walked off the job, Strothers encountered Marsden, at which time Marsden 5. Prior practices concerning working in the rain pulled up and asked me who the instigator was." Mars- Marsden testified that in the past, if it started to rain den denied asking who was the instigator. Laine, whom while the men were working, it was the practice for the I regard as a particularly credible witness, testified that HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 911 Porter corroborated Strothers' testimony. Porter also men to take shelter in the doorway of a building, on testified that, after Marsden told Strothers that he was someone's porch, or in the trucks. This was corroborated fired, he instructed Laine, Young, and Boston to go to by Boston, who testified that, in the past, the men waited work. However, he left Porter, Cole, and Ruffin "stand- for up to an hour in the shanty or in the trucks to see if ing there." it would stop raining. If it did not stop, Marsden or his Porter testified that he reported to work on May 21. son would instruct the men to leave. Laine and Porter When asked whether he had any conversation with similarly testified. The testimony is uncontroverted that Marsden at that time, Porter credibly testified: neither Marsden nor his son was at the jobsite on May 19, between 9:30 and 10:15 a.m. I tried to question him, but he wouldn't give me no Marsden also testified that raincoats and rain pants answer. We got to work that morning and he gave were available in the storage wagon. He conceded, how- us our checks, Joe Ruffin, John Cole and Strothers ever, that there were not "enough to go around." On the and told us that there was no work; Joe Ruffin, other hand, Strothers and Porter stated that rain gear myself and Cole. was not provided. Cole testified that there were "some" Marsden testified that he gave Porter a number of rea- ponchos available but that he had never used them. sons for "letting him go." These included smoking mari- B as ed o n t h e a bo v e testimony, I find that in the past juana, drinking, not "operating the truck right," having the men took shelter when it started raining and re- "three flat tires in two weeks" and "stopping at restau- mained there for up to an hour, at which time either rants to have coffee breaks." With respect to Cole and Marsden or his son would instruct them to leave. On Ruffin, Marsden testified: May 19, from 9:30-10:15 a.m., neither Marsden nor his son was at the jobsite. Q. What reason did you give Cole and Ruffin? With respect to whether rain gear was available, Mars- A. Because I don't have any work for them. den conceded that there was not enough "to go around." Q. When did you bring them back? I find that some rain gear was available but that the men A. The following Monday after I had my chance were not accustomed to using it. It is questionable to have a preliminary investigation as to what hap- whether all the men indeed knew that the rain gear was pened. available. In any event, the practice in the past was to Q. As to what happened about what? take shelter and wait for the rain to stop, rather than use A. Them walking off the job. A lot of them were the rain gear. under duress and influenced by other people. They had no choice of transportation back to my shop 6. Strothers' request for a loan and they couldn't hold or conduct any work on Ms t th requested a loan of their own. So they were coerced into leaving the ^ thei ow. S thy wre oercd ito eavng he 650 on May 16 as a security deposit for renting an job and returning to the shop. apartment. Marsden did not refuse to grant the loan but Similarly, when asked why he discharged Strothers, said that "we would see." Marsden further testified that, Marsden testified that Strothers punched out the time- o n , May 19, Strothers asked for an additional loan of cards of the other employees and drank on the job. 55 0 0 to help a relative in Florida. Marsden stated that he When questioned as to why he had not discharged re f u se d this latter loan request, at which point Strothers Strothers and Porter prior to May 19, Marsden replied, "threw down his pick and walked away." Strothers testi- "I don't believe I had just cause at that particular time." fied that he requested a loan of $500 on May 16 for pur- I credit Strothers' and Porter's testimony and conclude poses of moving to another apartment. He denied, how- that they, Ruffin, and Cole were discharged because they ever, having any conversation with Marsden concerning walked off the job on May 19. Marsden admitted that a loan on May 19. In addition, Strothers denied having prior to May 19 he did not have "just cause" to dis- any relatives who live in Florida but testified that he and charge Strothers and Porter. While Marsden testified Marsden had a discussion on May 19 concerning the that he did not have work for Ruffin and Cole, he con- riots in Florida. ceded that he rehired them after a "preliminary investi- I credit Strothers' testimony and find that the only re- gation" as to the circumstances surrounding their walk- quest for a loan was that made on May 16 for $500 to be ing off the job. Marsden thus admitted that their dis- used as a security deposit for the rental of an apartment. charge was not, indeed, because of lack of work, but in- I find that Marsden did not refuse to grant the loan but stead it related to their leaving the job on May 19. I con- told Strothers that he "would see" whether to grant it. clude that the various reasons given by Marsden for the discharges, such as lack of work, drinking, improper 7. Interrogation driving, and, in the case of Strothers, failure to furnish Paragraph IV of the complaint alleges that Marsden his driver's license, were pretextual. I find that the actual asked an employee who was the "agitator" and "instiga- reason for the discharges was the employees' leaving the tor" of the May 19 decision to stop work. In this regard, jobsite on May 19. Strothers testified that, after the men walked off the job, Strothers encountered Marsden, at which time Marsden 5. Prior practices concerning working in the rain .pulled up and asked me who the instigator was." Mars- Marsden testified that in the past, if it started to rain den denied asking who was the instigator. Laine, whom while the men were working, it was the practice for the I regard as a particularly credible witness, testified that HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 911 Porter corroborated Strothers' testimony. Porter also men to take shelter in the doorway of a building, on testified that, after Marsden told Strothers that he was someone's porch, or in the trucks. This was corroborated fired, he instructed Laine, Young, and Boston to go to by Boston, who testified that, in the past, the men waited work. However, he left Porter, Cole, and Ruffin "stand- for up to an hour in the shanty or in the trucks to see if ing there." it would stop raining. If it did not stop, Marsden or his Porter testified that he reported to work on May 21. son would instruct the men to leave. Laine and Porter When asked whether he had any conversation with similarly testified. The testimony is uncontroverted that Marsden at that time, Porter credibly testified: neither Marsden nor his son was at the jobsite on May 19, between 9:30 and 10:15 a.m. I tried to question him, but he wouldn't give me no Marsden also testified that raincoats and rain pants answer. We got to work that morning and he gave were available in the storage wagon. He conceded, how- us our checks, Joe Ruffin, John Cole and Strothers ever, that there were not "enough to go around." On the and told us that there was no work; Joe Ruffin, other hand, Strothers and Porter stated that rain gear myself and Cole. was not provided. Cole testified that there were "some" Marsden testified that he gave Porter a number of rea- ponchos available but that he had never used them. sons for "letting him go." These included smoking mari- B as ed o n t h e a bo v e testimony, I find that in the past juana, drinking, not "operating the truck right," having the men took shelter when it started raining and re- "three flat tires in two weeks" and "stopping at restau- mained there for up to an hour, at which time either rants to have coffee breaks." With respect to Cole and Marsden or his son would instruct them to leave. On Ruffin, Marsden testified: May 19, from 9:30-10:15 a.m., neither Marsden nor his son was at the jobsite. Q. What reason did you give Cole and Ruffin? With respect to whether rain gear was available, Mars- A. Because I don't have any work for them. den conceded that there was not enough "to go around." Q. When did you bring them back? I find that some rain gear was available but that the men A. The following Monday after I had my chance were not accustomed to using it. It is questionable to have a preliminary investigation as to what hap- whether all the men indeed knew that the rain gear was pened. available. In any event, the practice in the past was to Q. As to what happened about what? take shelter and wait for the rain to stop, rather than use A. Them walking off the job. A lot of them were the rain gear. under duress and influenced by other people. They had no choice of transportation back to my shop 6. Strothers' request for a loan and they couldn't hold or conduct any work on Ms t th requested a loan of their own. So they were coerced into leaving the ^ thei ow. S thy wre oercd ito eavng he 650 on May 16 as a security deposit for renting an job and returning to the shop. apartment. Marsden did not refuse to grant the loan but Similarly, when asked why he discharged Strothers, s a id that "we would see." Marsden further testified that, Marsden testified that Strothers punched out the time- o n , May 19, Strothers asked for an additional loan of cards of the other employees and drank on the job. 55 0 0 to help a relative in Florida. Marsden stated that he When questioned as to why he had not discharged re f u se d this latter loan request, at which point Strothers Strothers and Porter prior to May 19, Marsden replied, "threw down his pick and walked away." Strothers testi- "I don't believe I had just cause at that particular time." fied that he requested a loan of $500 on May 16 for pur- I credit Strothers' and Porter's testimony and conclude poses of moving to another apartment. He denied, how- that they, Ruffin, and Cole were discharged because they ever, having any conversation with Marsden concerning walked off the job on May 19. Marsden admitted that a loan on May 19. In addition, Strothers denied having prior to May 19 he did not have "just cause" to dis- any relatives who live in Florida but testified that he and charge Strothers and Porter. While Marsden testified Marsden had a discussion on May 19 concerning the that he did not have work for Ruffin and Cole, he con- riots in Florida. ceded that he rehired them after a "preliminary investi- I credit Strothers' testimony and find that the only re- gation" as to the circumstances surrounding their walk- quest for a loan was that made on May 16 for $500 to be ing off the job. Marsden thus admitted that their dis- used as a security deposit for the rental of an apartment. charge was not, indeed, because of lack of work, but in- I find that Marsden did not refuse to grant the loan but stead it related to their leaving the job on May 19. I con- told Strothers that he "would see" whether to grant it. clude that the various reasons given by Marsden for the discharges, such as lack of work, drinking, improper 7. Interrogation driving, and, in the case of Strothers, failure to furnish Paragraph IV of the complaint alleges that Marsden his driver's license, were pretextual. I find that the actual asked an employee who was the "agitator" and "instiga- reason for the discharges was the employees' leaving the tor" of the May 19 decision to stop work. In this regard, jobsite on May 19. Strothers testified that, after the men walked off the job, Strothers encountered Marsden, at which time Marsden 5. Prior practices concerning working in the rain .pulled up and asked me who the instigator was." Mars- Marsden testified that in the past, if it started to rain den denied asking who was the instigator. Laine, whom while the men were working, it was the practice for the I regard as a particularly credible witness, testified that HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 911 Porter corroborated Strothers' testimony. Porter also men to take shelter in the doorway of a building, on testified that, after Marsden told Strothers that he was someone's porch, or in the trucks. This was corroborated fired, he instructed Laine, Young, and Boston to go to by Boston, who testified that, in the past, the men waited work. However, he left Porter, Cole, and Ruffin "stand- for up to an hour in the shanty or in the trucks to see if ing there." it would stop raining. If it did not stop, Marsden or his Porter testified that he reported to work on May 21. son would instruct the men to leave. Laine and Porter When asked whether he had any conversation with similarly testified. The testimony is uncontroverted that Marsden at that time, Porter credibly testified: neither Marsden nor his son was at the jobsite on May 19, between 9:30 and 10:15 a.m. I tried to question him, but he wouldn't give me no Marsden also testified that raincoats and rain pants answer. We got to work that morning and he gave were available in the storage wagon. He conceded, how- us our checks, Joe Ruffin, John Cole and Strothers ever, that there were not "enough to go around." On the and told us that there was no work; Joe Ruffin, other hand, Strothers and Porter stated that rain gear myself and Cole. was not provided. Cole testified that there were "some" Marsden testified that he gave Porter a number of rea- ponchos available but that he had never used them. sons for "letting him go." These included smoking mari- B as ed o n t h e a bo v e testimony, I find that in the past juana, drinking, not "operating the truck right," having the men took shelter when it started raining and re- "three flat tires in two weeks" and "stopping at restau- mained there for up to an hour, at which time either rants to have coffee breaks." With respect to Cole and Marsden or his son would instruct them to leave. On Ruffin, Marsden testified: May 19, from 9:30-10:15 a.m., neither Marsden nor his son was at the jobsite. Q. What reason did you give Cole and Ruffin? With respect to whether rain gear was available, Mars- A. Because I don't have any work for them. den conceded that there was not enough "to go around." Q. When did you bring them back? I find that some rain gear was available but that the men A. The following Monday after I had my chance were not accustomed to using it. It is questionable to have a preliminary investigation as to what hap- whether all the men indeed knew that the rain gear was pened. available. In any event, the practice in the past was to Q. As to what happened about what? take shelter and wait for the rain to stop, rather than use A. Them walking off the job. A lot of them were the rain gear. under duress and influenced by other people. They had no choice of transportation back to my shop 6. Strothers' request for a loan and they couldn't hold or conduct any work on Ms t th requested a loan of their own. So they were coerced into leaving the ^ thei ow. S thy wre oercd ito eavng he 650 on May 16 as a security deposit for renting an job and returning to the shop. apartment. Marsden did not refuse to grant the loan but Similarly, when asked why he discharged Strothers, s a id that "we would see." Marsden further testified that, Marsden testified that Strothers punched out the time- o n , May 19, Strothers asked for an additional loan of cards of the other employees and drank on the job. 55 0 0 to help a relative in Florida. Marsden stated that he When questioned as to why he had not discharged refused this latter loan request, at which point Strothers Strothers and Porter prior to May 19, Marsden replied, "threw down his pick and walked away." Strothers testi- "I don't believe I had just cause at that particular time." fied that he requested a loan of $500 on May 16 for pur- I credit Strothers' and Porter's testimony and conclude poses of moving to another apartment. He denied, how- that they, Ruffin, and Cole were discharged because they ever, having any conversation with Marsden concerning walked off the job on May 19. Marsden admitted that a loan on May 19. In addition, Strothers denied having prior to May 19 he did not have "just cause" to dis- any relatives who live in Florida but testified that he and charge Strothers and Porter. While Marsden testified Marsden had a discussion on May 19 concerning the that he did not have work for Ruffin and Cole, he con- riots in Florida. ceded that he rehired them after a "preliminary investi- I credit Strothers' testimony and find that the only re- gation" as to the circumstances surrounding their walk- quest for a loan was that made on May 16 for $500 to be ing off the job. Marsden thus admitted that their dis- used as a security deposit for the rental of an apartment. charge was not, indeed, because of lack of work, but in- I find that Marsden did not refuse to grant the loan but stead it related to their leaving the job on May 19. I con- told Strothers that he "would see" whether to grant it. clude that the various reasons given by Marsden for the discharges, such as lack of work, drinking, improper 7. Interrogation driving, and, in the case of Strothers, failure to furnish Paragraph IV of the complaint alleges that Marsden his driver's license, were pretextual. I find that the actual asked an employee who was the "agitator" and "instiga- reason for the discharges was the employees' leaving the tor" of the May 19 decision to stop work. In this regard, jobsite on May 19. Strothers testified that, after the men walked off the job, Strothers encountered Marsden, at which time Marsden 5. Prior practices concerning working in the rain .pulled up and asked me who the instigator was." Mars- Marsden testified that in the past, if it started to rain den denied asking who was the instigator. Laine, whom while the men were working, it was the practice for the I regard as a particularly credible witness, testified that 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he worked with Marsden the afternoon of May 19. He that it was not raining hard on May 19 and that the em- testified that they discussed the reasons the employees ployees had not complained to Marsden about the left the job and that Laine told Marsden it was "because weather before embarking on their work stoppage.5 it was raining." He denied that Marsden asked him who The crucial issue is not the reasonableness of the em- was the "ringleader." ployees' complaint but whether the employees walked I find that the General Counsel has not sustained his off the job because of working conditions which they burden of showing that Marsden asked who was the found uncomfortable and objectionable. I have found "agitator" or "instigator." If Marsden was interested in that the employees left the job because it was raining. As finding that out, it is unlikely that he would not have discussed earlier, the cases hold that employees are not questioned Laine about it, when they worked together required to make prior demand on the employer, nor are that afternoon. Accordingly, the allegation is dismissed. their Section 7 rights dependent on the reasonableness of their protest. Accordingly, the fact that it may not have C. Discussion and Analysis been raining hard or that in the past they may have In N.L.R.B. v. Washington Aluminum Company, 370 worked in the rain does not detract from their Section 7 U.S. 9 (1962), the Supreme Court held that the employ- rights. ees were engaged in protected concerted activities when I have found Marsden was aware of the reason of the they participated in a work stoppage to protest lack of employees' work stoppage. He was told by Strothers as heat in the plant. The Court held that Section 7 of the the employees were leaving the worksite and later on Act protects employees' concerted activities to protest that afternoon he was told by Laine that the employees unsafe or uncomfortable working conditions. Additional- left work because of the rain. I have found that he dis- ly, the Court held that these Section 7 rights were not charged the four employees because of their work stop- dependent on the reasonableness of the employees' pro- page. I have further found that the various reasons given test nor on whether the employees had made a specific by Marsden for the discharges, including the failure of demand on the employer to remedy the condition, prior Strothers to produce a driver's license, were pretextual. to engaging in the work stoppage. In subsequent cases The reason for the discharges was the work stoppage. the Board has reiterated that employees are not required Inasmuch as the work stoppage was protected by Sec- to communicate the reason for their concerted activity to tion 7 of the Act, the discharges of the employees by the employer prior to engaging in the activity. See Audio Marsden constituted a violation of Section 8(a)(l) of the Systems, Inc., 239 NLRB 1316, 1318 (1979). Furthermore, Act. the underlying employee grievances do not have to be reasonable or meritorious in order for the concerted CONCLUSIONS OF LAW work stoppage to be protected under Section 7 of the . Respondent is an employer engaged in commerce Act.3 See Bay-Wood Industries, Inc., 249 NLRB 403, 406 A c1 . h e e c B ayWoo I nd ustrles t is t, 249 NLRB 403, 4 0 6e within the meaning of Section 2(6) and (7) of the Act. (1980). The crucial element is that the enployees have discharging Robert Strothers, Ronald Porter, engaged in a concerted work stoppage to protest work- 2. By discharging Robert Strothers, Ronald Port ing . conditions whh t 4 Joseph Ruffin, and John Cole for engaging in a work ing conditions which they consider unacceptable.' Respondent has inter- I have found that Respondent's employees, after dis- stoppage because of raiy weather, Respondent has iter- c ussio n amon thatemsespdecided to walk off the job fered with, restrained, and coerced employees in the ex- cussion amongthey were unwillin to work i the r Te ercise o of the rights guaranteed them by Section 7 of the because they were unwilling to work in the rain. They were thus engaged in a protected concerted work stop- Act and has thereby engaged in unfair labor practices were thus engaged in a protected concerted work stop- g the Act page to protest uncomfortable working conditions. It is w he meaning of Secion 8a) of the Act clear under Washington Aluminum and its progeny that, 3. The aforesaid unfair labor practices constitute unfair when an employer discharges its employees because they labor practices affecting commerce wthn the meaning have engaged in a concerted work stoppage to protest of Section 2(6) and (7) of the Act- uncomfortable working conditions, the employer violates 4. Respondent did not violate the Act in any other Section 8(a)(1) of the Act. manner alleged in the complaint. Respondent adduced testimony to show that the em- THE ployees had previously worked in the rain and that the past practice was to have employees wait in the trucks to Having found that Respondent has engaged in certain see if the rain would clear. Respondent also contends unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take af- 'Accordingly, the fact that the employees took shelter in the past to firmative action designed to effectuate the policies of the wait out the rain is irrelevant. Similarly irrelevant is the fact that employ- Act. ees of other construction jobs may have continued to do their work on May 19. Respondent having discharged several employees in 4 Respondent argues that the work stoppage was engineered by violation of the Act, I find it necessary to order Re- Strothers who was disgruntled because his request for two loans was spondent to offer them full reinstatement to their former denied. To the contrary, I have found that Strothers' only request for a positions or, if such positions no longer exist, to substan- loan was on May 16 and that request was not refused. Instead, Marsden e said that he would consider the matter. In addition, the fact that Strothers may have had an additional personal reason for leaving the job- In this connection, it is uncontroverted that from 9:30 until 10:15 a.m. site does not deprive the work stoppage of its concerted character or neither Marsden nor his son was at the jobsite. Accordingly, even had protection under Sec. 7. See Kendick Engineering, Inc., 244 NLRB 989 the employees desired to give advance notice of their intention to leave (1979). work, there was no one to whom they could have given such notice. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he worked with Marsden the afternoon of May 19. He that it was not raining hard on May 19 and that the em- testified that they discussed the reasons the employees ployees had not complained to Marsden about the left the job and that Laine told Marsden it was "because weather before embarking on their work stoppage." it was raining." He denied that Marsden asked him who The crucial issue is not the reasonableness of the em- was the "ringleader." ployees' complaint but whether the employees walked I find that the General Counsel has not sustained his off the job because of working conditions which they burden of showing that Marsden asked who was the found uncomfortable and objectionable. I have found "agitator" or "instigator." If Marsden was interested in that the employees left the job because it was raining. As finding that out, it is unlikely that he would not have discussed earlier, the cases hold that employees are not questioned Laine about it, when they worked together required to make prior demand on the employer, nor are that afternoon. Accordingly, the allegation is dismissed. their Section 7 rights dependent on the reasonableness of their protest. Accordingly, the fact that it may not have C. Discussion and Analysis been raining hard or that in the past they may have In N.L.R.B. v. Washington Aluminum Company, 370 worked in the rain does not detract from their Section 7 U.S. 9 (1962), the Supreme Court held that the employ- rights. ees were engaged in protected concerted activities when I have found Marsden was aware of the reason of the they participated in a work stoppage to protest lack of employees' work stoppage. He was told by Strothers as heat in the plant. The Court held that Section 7 of the the employees were leaving the worksite and later on Act protects employees' concerted activities to protest that afternoon he was told by Laine that the employees unsafe or uncomfortable working conditions. Additional- left work because of the rain. I have found that he dis- ly, the Court held that these Section 7 rights were not charged the four employees because of their work stop- dependent on the reasonableness of the employees' pro- page. I have further found that the various reasons given test nor on whether the employees had made a specific by Marsden for the discharges, including the failure of demand on the employer to remedy the condition, prior Strothers to produce a driver's license, were pretextual. to engaging in the work stoppage. In subsequent cases The reason for the discharges was the work stoppage. the Board has reiterated that employees are not required Inasmuch as the work stoppage was protected by Sec- to communicate the reason for their concerted activity to tion 7 of the Act, the discharges of the employees by the employer prior to engaging in the activity. See Audio Marsden constituted a violation of Section 8(a)(l) of the Systems, Inc., 239 NLRB 1316, 1318 (1979). Furthermore, Act. the underlying employee grievances do not have to be reasonable or meritorious in order for the concerted CONCLUSIONS OF LAW work stoppage to be protected under Section 7 of the 1. Respondent is an employer engaged in commerce A ct.3 See Bay-Wood I nd us tries, In c., 24 9 N L R B 40 3 , 4 0 6 within the meaning of Section 2(6) and (7) of the Act. (1980). The crucial element is that the enployees have 2 discharging Robert Strothers, Ronald Porter, engaged in a concerted work stoppage to protest work- J R adJohn Cole for engaging in a work ing conditions which they consider unacceptable.' so Respondent has inter- I have found that Respondent's employees, after dis- f restrained, and coerced employees in the ex- cussion among themselves, decided to walk off the job ercise of the rights guaranteed them by Section 7 of the because they were unwilling to work in the rain. They A a h t were thus engaged in a protected concerted work stop- w g o the Act page to protest uncomfortable working conditions. It is 3 T ar i u l p constt.tenfai clear under Washington Aluminum and its progeny that, 3. T h e aforesaid unfair labor practices constitute unfair when an employer discharges its employees because they lab o r pSectio26 a ff ec t n g c o m m er c e w A t h . n th e "^"'"S have engaged in a concerted work stoppage to protest o f S ec t l on 2(6) a nd (7) o f t he A c t uncomfortable working conditions, the employer violates 4. Respondent did not violate the Act in any other Section 8(a)(l) of the Act. m an n er alleged in th e complaint. Respondent adduced testimony to show that the em- THE REMEDY ployees had previously worked in the rain and that the past practice was to have employees wait in the trucks to Having found that Respondent has engaged in certain see if the rain would clear. Respondent also contends unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take af- 'Accordingly, the fact that the employees took shelter in the past to firmative action designed to effectuate the policies of the wait out the rain is irrelevant. Similarly irrelevant is the fact that employ- Act. ees of other construction jobs may have continued to do their work on May 19. Respondent having discharged several employees in I Respondent argues that the work stoppage was engineered by violation of the Act, I find it necessary to Order Re- Strothers who was disgruntled because his request for two loans was spondent to offer them full reinstatement to their former denied. To the contrary, I have found that Strothers' only request for a positions Or, if such positions no longer exist, to substan- loan was on May 16 and that request was not refused. Instead, Marsden said that he would consider the matter. In addition, the fact that Strothers may have had an additional personal reason for leaving the job- In this connection, it is uncontroverted that from 9:30 until 10:15 a.m. site does not deprive the work stoppage of its concerted character or neither Marsden nor his son was at the jobsite. Accordingly, even had protection under Sec. 7. See Kendick Engineering, Inc., 244 NLRB 989 the employees desired to give advance notice of their intention to leave (1979). work, there was no one to whom they could have given such notice. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he worked with Marsden the afternoon of May 19. He that it was not raining hard on May 19 and that the em- testified that they discussed the reasons the employees ployees had not complained to Marsden about the left the job and that Laine told Marsden it was "because weather before embarking on their work stoppage." it was raining." He denied that Marsden asked him who The crucial issue is not the reasonableness of the em- was the "ringleader." ployees' complaint but whether the employees walked I find that the General Counsel has not sustained his off the job because of working conditions which they burden of showing that Marsden asked who was the found uncomfortable and objectionable. I have found "agitator" or "instigator." If Marsden was interested in that the employees left the job because it was raining. As finding that out, it is unlikely that he would not have discussed earlier, the cases hold that employees are not questioned Laine about it, when they worked together required to make prior demand on the employer, nor are that afternoon. Accordingly, the allegation is dismissed. their Section 7 rights dependent on the reasonableness of their protest. Accordingly, the fact that it may not have C. Discussion and Analysis been raining hard or that in the past they may have In N.L.R.B. v. Washington Aluminum Company, 370 worked in the rain does not detract from their Section 7 U.S. 9 (1962), the Supreme Court held that the employ- rights. ees were engaged in protected concerted activities when I have found Marsden was aware of the reason of the they participated in a work stoppage to protest lack of employees' work stoppage. He was told by Strothers as heat in the plant. The Court held that Section 7 of the the employees were leaving the worksite and later on Act protects employees' concerted activities to protest that afternoon he was told by Laine that the employees unsafe or uncomfortable working conditions. Additional- left work because of the rain. I have found that he dis- ly, the Court held that these Section 7 rights were not charged the four employees because of their work stop- dependent on the reasonableness of the employees' pro- page. I have further found that the various reasons given test nor on whether the employees had made a specific by Marsden for the discharges, including the failure of demand on the employer to remedy the condition, prior Strothers to produce a driver's license, were pretextual. to engaging in the work stoppage. In subsequent cases The reason for the discharges was the work stoppage. the Board has reiterated that employees are not required Inasmuch as the work stoppage was protected by Sec- to communicate the reason for their concerted activity to tion 7 of the Act, the discharges of the employees by the employer prior to engaging in the activity. See Audio Marsden constituted a violation of Section 8(a)(l) of the Systems, Inc., 239 NLRB 1316, 1318 (1979). Furthermore, Act. the underlying employee grievances do not have to be reasonable or meritorious in order for the concerted CONCLUSIONS OF LAW work stoppage to be protected under Section 7 of the 1. Respondent is an employer engaged in commerce A ct.3 See Bay-Wood I nd us tries, In c., 24 9 N L R B 40 3 , 4 0 6 within the meaning of Section 2(6) and (7) of the Act. (1980). The crucial element is that the enployees have 2 discharging Robert Strothers, Ronald Porter, engaged in a concerted work stoppage to protest work- J R adJohn Cole for engaging in a work ing conditions which they consider unacceptable.' so Respondent has inter- I have found that Respondent's employees, after dis- f restrained, and coerced employees in the ex- cussion among themselves, decided to walk off the job ercise of the rights guaranteed them by Section 7 of the because they were unwilling to work in the rain. They A a h t were thus engaged in a protected concerted work stop- w g o the Act page to protest uncomfortable working conditions. It is 3 T ar i u l p consttutenfai clear under Washington Aluminum and its progeny that, 3. T h e aforesaid unfair labor practices constitute unfair when an employer discharges its employees because they lab o r pSectio26 a ff ec t n g c o m m er c e w A t h . n th e "^"'"S have engaged in a concerted work stoppage to protest o f S ec t l on 2(6) a nd (7) o f t he A c t uncomfortable working conditions, the employer violates 4. Respondent did not violate the Act in any other Section 8(a)(l) of the Act. m an n er alleged in th e complaint. Respondent adduced testimony to show that the em- THE REMEDY ployees had previously worked in the rain and that the past practice was to have employees wait in the trucks to Having found that Respondent has engaged in certain see if the rain would clear. Respondent also contends unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take af- 'Accordingly, the fact that the employees took shelter in the past to firmative action designed to effectuate the policies of the wait out the rain is irrelevant. Similarly irrelevant is the fact that employ- Act. ees of other construction jobs may have continued to do their work on May 19. Respondent having discharged several employees in I Respondent argues that the work stoppage was engineered by violation of the Act, I find it necessary to Order Re- Strothers who was disgruntled because his request for two loans was spondent to offer them full reinstatement to their former denied. To the contrary, I have found that Strothers' only request for a positions Or, if such positions no longer exist, to substan- loan was on May 16 and that request was not refused. Instead, Marsden said that he would consider the matter. In addition, the fact that Strothers may have had an additional personal reason for leaving the job- In this connection, it is uncontroverted that from 9:30 until 10:15 a.m. site does not deprive the work stoppage of its concerted character or neither Marsden nor his son was at the jobsite. Accordingly, even had protection under Sec. 7. See Kendick Engineering, Inc., 244 NLRB 989 the employees desired to give advance notice of their intention to leave (1979). work, there was no one to whom they could have given such notice. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he worked with Marsden the afternoon of May 19. He that it was not raining hard on May 19 and that the em- testified that they discussed the reasons the employees ployees had not complained to Marsden about the left the job and that Laine told Marsden it was "because weather before embarking on their work stoppage." it was raining." He denied that Marsden asked him who The crucial issue is not the reasonableness of the em- was the "ringleader." ployees' complaint but whether the employees walked I find that the General Counsel has not sustained his off the job because of working conditions which they burden of showing that Marsden asked who was the found uncomfortable and objectionable. I have found "agitator" or "instigator." If Marsden was interested in that the employees left the job because it was raining. As finding that out, it is unlikely that he would not have discussed earlier, the cases hold that employees are not questioned Laine about it, when they worked together required to make prior demand on the employer, nor are that afternoon. Accordingly, the allegation is dismissed. their Section 7 rights dependent on the reasonableness of their protest. Accordingly, the fact that it may not have C. Discussion and Analysis been raining hard or that in the past they may have In N.L.R.B. v. Washington Aluminum Company, 370 worked in the rain does not detract from their Section 7 U.S. 9 (1962), the Supreme Court held that the employ- rights. ees were engaged in protected concerted activities when I have found Marsden was aware of the reason of the they participated in a work stoppage to protest lack of employees' work stoppage. He was told by Strothers as heat in the plant. The Court held that Section 7 of the the employees were leaving the worksite and later on Act protects employees' concerted activities to protest that afternoon he was told by Laine that the employees unsafe or uncomfortable working conditions. Additional- left work because of the rain. I have found that he dis- ly, the Court held that these Section 7 rights were not charged the four employees because of their work stop- dependent on the reasonableness of the employees' pro- page. I have further found that the various reasons given test nor on whether the employees had made a specific by Marsden for the discharges, including the failure of demand on the employer to remedy the condition, prior Strothers to produce a driver's license, were pretextual. to engaging in the work stoppage. In subsequent cases The reason for the discharges was the work stoppage. the Board has reiterated that employees are not required Inasmuch as the work stoppage was protected by Sec- to communicate the reason for their concerted activity to tion 7 of the Act, the discharges of the employees by the employer prior to engaging in the activity. See Audio Marsden constituted a violation of Section 8(a)(l) of the Systems, Inc., 239 NLRB 1316, 1318 (1979). Furthermore, Act. the underlying employee grievances do not have to be reasonable or meritorious in order for the concerted CONCLUSIONS OF LAW work stoppage to be protected under Section 7 of the 1. Respondent is an employer engaged in commerce Act.I See B ay -Wood I nd us tries, In c. 24 9 N L R B 40 3 , 4 0 6 within the meaning of Section 2(6) and (7) of the Act. (1980). The crucial element is that the enployees have 2 discharging Robert Strothers, Ronald Porter, engaged in a concerted work stoppage to protest work- J R adJohn Cole for engaging in a work ing conditions which they consider unacceptable.' so Respondent has inter- I have found that Respondent's employees, after dis- f restrained, and coerced employees in the ex- cussion among themselves, decided to walk off the job ercise of the rights guaranteed them by Section 7 of the because they were unwilling to work in the rain. They A a h t were thus engaged in a protected concerted work stop- w g o the Act page to protest uncomfortable working conditions. It is 3 T ar i u l p consttutenfai clear under Washington Aluminum and its progeny that, 3. T h e aforesaid unfair labor practices constitute unfair when an employer discharges its employees because they lab o r pSectio26 a ff ec t n g c o m m er c e w A t h . n th e "^"'"S have engaged in a concerted work stoppage to protest o f S ec t l on 2(6) a nd (7) o f t he A c t uncomfortable working conditions, the employer violates 4. Respondent did not violate the Act in any other Section 8(a)(l) of the Act. m an n er alleged in th e complaint. Respondent adduced testimony to show that the em- THE REMEDY ployees had previously worked in the rain and that the past practice was to have employees wait in the trucks to Having found that Respondent has engaged in certain see if the rain would clear. Respondent also contends unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take af- 'Accordingly, the fact that the employees took shelter in the past to firmative action designed to effectuate the policies of the wait out the rain is irrelevant. Similarly irrelevant is the fact that employ- Act. ees of other construction jobs may have continued to do their work on May 19. Respondent having discharged several employees in I Respondent argues that the work stoppage was engineered by violation of the Act, I find it necessary to Order Re- Strothers who was disgruntled because his request for two loans was spondent to offer them full reinstatement to their former denied. To the contrary, I have found that Strothers' only request for a positions Or, if such positions no longer exist, to substan- loan was on May 16 and that request was not refused. Instead, Marsden said that he would consider the matter. In addition, the fact that Strothers may have had an additional personal reason for leaving the job- In this connection, it is uncontroverted that from 9:30 until 10:15 a.m. site does not deprive the work stoppage of its concerted character or neither Marsden nor his son was at the jobsite. Accordingly, even had protection under Sec. 7. See Kendick Engineering, Inc., 244 NLRB 989 the employees desired to give advance notice of their intention to leave (1979). work, there was no one to whom they could have given such notice. HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 913 tially equivalent positions, without prejudice to their se- 2. Take the following affirmative action necessary to niority or other rights and privileges, and make them effectuate the policies of the Act: whole for any loss of earnings that they may have suf- (a) Offer to Robert Strothers and Ronald Porter imme- fered. 6 diate and full reinstatement to their former positions or, Backpay shall be computed in accordance with the if such positions no longer exist, to substantially equiva- formula approved in F. W. Woolworth Company, 90 lent positions, without prejudice to their seniority or NLRB 289 (1950), with interest computed in the manner other rights and privileges, and make them whole for prescribed in Florida Steel Corporation, 231 NLRB 651 any loss of earnings, in the manner set forth in the sec- (1977). 7 tion above entitled "The Remedy." (b) Make whole Joseph Ruffin and John Cole for any Upon the foregoing findings of fact, conclusions of ls of e s i h a s f n te section loss of earnings, in the manner set forth in the section law, and upon the entire record, and pursuant to Section above entitled "The Remedy." 10(c) of the Act, I hereby issue the following recom- (c) Post at its facility in Rochester, New York, copies mended: of the attached notice marked "Appendix." g Copies of said notice, on forms provided by the Regional Director ORDER for Region 3, after being duly signed by Respondent's The Respondent, Hudson T. Marsden, a Sole Propri- representative, shall be posted by Respondent immediate- etorship, Rochester, New York, his agents, successors, ly upon receipt thereof, and be maintained by it for 60 and assigns, shall: consecutive days thereafter, in conspicuous places, in- 1. Cease and desist from: cluding all places where notices to employees are cus- (a) Discharging employees because they have engaged tomarily posted. Reasonable steps shall be taken by Re- inpotce concerted . activities . espondent to insure that said notices are not altered, de- in protected concerted activities, faced, or covered by any other material. (b) In any like or related manner interfering with, re- (d) Notify the Regional Director for Region 3, in writ- straining, or coercing employees in the exercise of the ing, within 20 days from the date of this Order, what rights guaranteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the Ruffin and Cole were reinstated on May 26, 1980. complaint as to which no violations have been found are Ssee, generally, Isis Plumbing d Heating Ca, 138 NLRB 716, 717-721 (1962) hereby dismissed. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ' In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 913 tially equivalent positions, without prejudice to their se- 2. Take the following affirmative action necessary to niority or other rights and privileges, and make them effectuate the policies of the Act: whole for any loss of earnings that they may have suf- (a) Offer to Robert Strothers and Ronald Porter imme- fered. 6 diate and full reinstatement to their former positions or, Backpay shall be computed in accordance with the if s u c h positions no longer exist, to substantially equiva- formula approved in F. W. Woolworth Company, 90 l e n t positions, without prejudice to their seniority or NLRB 289 (1950), with interest computed in the manner o t h e r rights and privileges, and make them whole for prescribed in Florida Steel Corporation, 231 NLRB 651 any l o ss o f ea rnings, in th e m an n er set f o r t h in t h e se c- (1977 . 7 'tion above entitled "The Remedy." Upon the foregoing ,.ndings of fact, conclusions of (b) Make whole Joseph Ruffin and John Cole for any Upon the foregoing findings of fact, conclusions of loss of earnings, in the manner set forth in the section law, and upon the entire record, and pursuant to Section above entitled "The Remedy." 10(c) of the Act, I hereby issue the following recom- (c) post at its facility in Rochester, New York, copies m e n d e d : of the attached notice marked "Appendix."" Copies of s aid n o tic e, on forms provided by the Regional Director ORDERs for Region 3, after being duly signed by Respondent's The Respondent, Hudson T. Marsden, a Sole Propri- representative, shall be posted by Respondent immediate- etorship, Rochester, New York, his agents, successors, ly upon receipt thereof, and be maintained by it for 60 and assigns, shall: consecutive days thereafter, in conspicuous places, in- i. Cease and desist from: eluding all places where notices to employees are cus- (a) . Discharging employees because they have engaged tomarily posted. Reasonable steps shall be taken by Re- (a) Dischargingcetdatvtes. spondent to insure that said notices are not altered, de- in protected concerted actlvitles. faced, or covered by any other material. (b) In any like or related manner interfering with, re- (d) Notify the Regional Director for Region 3, in writ- straining, or coercing employees in the exercise of the ing, within 20 days from the date of this Order, what rights guaranteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the *Ruffin and Cole were reinstated on May 26, 19>0. complaint as to which no violations have been found are SecSS, generally, Isis Plumbing d Heating Ca, 138 NLRB 716, 717-721 eb dsie. (1962). erey dismised. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ' In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 913 tially equivalent positions, without prejudice to their se- 2. Take the following affirmative action necessary to niority or other rights and privileges, and make them effectuate the policies of the Act: whole for any loss of earnings that they may have suf- (a) Offer to Robert Strothers and Ronald Porter imme- fered. 6 diate and full reinstatement to their former positions or, Backpay shall be computed in accordance with the if s u c h positions no longer exist, to substantially equiva- formula approved in F. W. Woolworth Company, 90 l e n t positions, without prejudice to their seniority or NLRB 289 (1950), with interest computed in the manner o t h e r rights and privileges, and make them whole for prescribed in Florida Steel Corporation, 231 NLRB 651 any los s o f ea rnings, in th e m an n er set f o r t h in t h e se c- (1977 . 7 'tion above entitled "The Remedy." Upon the foregoing ,.ndings of fact, conclusions of (b) Make whole Joseph Ruffin and John Cole for any Upon the foregoing findings of fact, conclusions of loss of earnings, in the manner set forth in the section law, and upon the entire record, and pursuant to Section above entitled "The Remedy." 10(c) of the Act, I hereby issue the following recom- (c) post at its facility in Rochester, New York, copies mended: of the attached notice marked "Appendix."" Copies of s aid notice, on forms provided by the Regional Director ORDERs for Region 3, after being duly signed by Respondent's The Respondent, Hudson T. Marsden, a Sole Propri- representative, shall be posted by Respondent immediate- etorship, Rochester, New York, his agents, successors, ly upon receipt thereof, and be maintained by it for 60 and assigns, shall: consecutive days thereafter, in conspicuous places, in- i. Cease and desist from: eluding all places where notices to employees are cus- (a) . Discharging employees because they have engaged tomarily posted. Reasonable steps shall be taken by Re- (a) Dischargingcetdatvtes. spondent to insure that said notices are not altered, de- in protected concerted actlvitles. faced, or covered by any other material. (b) In any like or related manner interfering with, re- (d) Notify the Regional Director for Region 3, in writ- straining, or coercing employees in the exercise of the ing, within 20 days from the date of this Order, what rights guaranteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the *Ruffin and Cole were reinstated on May 26, 1980. complaint as to which no violations have been found are SecSS, generally, Isis Plumbing d Heating Ca, 138 NLRB 716, 717-721 eb dsie. (1962). erey dismised. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ' In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." HUDSON T. MARSDEN, A SOLE PROPRIETORSHIP 913 tially equivalent positions, without prejudice to their se- 2. Take the following affirmative action necessary to niority or other rights and privileges, and make them effectuate the policies of the Act: whole for any loss of earnings that they may have suf- (a) Offer to Robert Strothers and Ronald Porter imme- fered. 6 diate and full reinstatement to their former positions or, Backpay shall be computed in accordance with the if s u c h positions no longer exist, to substantially equiva- formula approved in F. W. Woolworth Company, 90 l e n t positions, without prejudice to their seniority or NLRB 289 (1950), with interest computed in the manner o t h e r rights and privileges, and make them whole for prescribed in Florida Steel Corporation, 231 NLRB 651 any los s o f ea rnings, in th e m an n er set f o r t h in t h e se c- (1977 . 7 'tion above entitled "The Remedy." Upon the foregoing ,.ndings of fact, conclusions of (b) Make whole Joseph Ruffin and John Cole for any Upon the foregoing findings of fact, conclusions of loss of earnings, in the manner set forth in the section law, and upon the entire record, and pursuant to Section above entitled "The Remedy." 10(c) of the Act, I hereby issue the following recom- (c) post at its facility in Rochester, New York, copies mended: of the attached notice marked "Appendix."" Copies of s aid notice, on forms provided by the Regional Director ORDERs for Region 3, after being duly signed by Respondent's The Respondent, Hudson T. Marsden, a Sole Propri- representative, shall be posted by Respondent immediate- etorship, Rochester, New York, his agents, successors, ly upon receipt thereof, and be maintained by it for 60 and assigns, shall: consecutive days thereafter, in conspicuous places, in- i. Cease and desist from: eluding all places where notices to employees are cus- (a) . Discharging employees because they have engaged tomarily posted. Reasonable steps shall be taken by Re- (a) Dischargingcetdatvtes. spondent to insure that said notices are not altered, de- in protected concerted actlvitles. faced, or covered by any other material. (b) In any like or related manner interfering with, re- (d) Notify the Regional Director for Region 3, in writ- straining, or coercing employees in the exercise of the ing, within 20 days from the date of this Order, what rights guaranteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the *Ruffin and Cole were reinstated on May 26, 1980. complaint as to which no violations have been found are SecSS, generally, Isis Plumbing d Heating Ca, 138 NLRB 716, 717-721 eb dsie. (1962). erey dismised. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ' In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."