Dawson Construction Co.

116 320 NLRB No. 23 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In addition, Member Browning observes that, according to the stipulation, there was a lawful primary picket line at the jobsite ‘‘[a]t all material times’’; the stipulation indicates that Warden refused to perform the only task the Respondent assigned him; and the parties’ stipulation did not suggest that there was already a reserve gate es- tablished on the day the Respondent discharged Warden. She would conclude, from these facts and from the absence of any factual stipu- lation otherwise, that Warden withheld his services by refusing to cross a lawful picket line and therefore the Respondent violated Sec. 8(a)(1) by discharging him for doing so. See Cooper Thermometer Co., 154 NLRB 502 (1965). Dawson Construction Company, Inc. and Chris- topher Dean Warden. Case 17–CA–17394 December 18, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALE Upon a charge and amended charge filed May 19 and June 21, 1994, by Christopher Dean Warden (War- den or the Charging Party), the Regional Director for Region 17 issued a complaint against Dawson Con- struction Company, Inc. (the Respondent), alleging that the Respondent engaged in certain unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Copies of the complaint and notice of hearing were served on the Respondent and the Charging Party. The Respondent filed a timely answer denying the commission of any unfair labor practices. On December 22, 1994, on the basis of an all-party stipulation, the parties filed with the Board a petition to transfer the instant proceeding to the Board without a hearing before an administrative law judge and sub- mitted a proposed record consisting of the formal pa- pers and parties’ stipulation of facts with attached ex- hibits. On January 27, 1995, the Acting Executive Sec- retary of the Board issued an order granting the peti- tion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the General Coun- sel and the Respondent filed briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the stipulation, the briefs, and the entire record of this proceeding, and makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, an Alabama corporation with an office and place of business in Fort Leavenworth, Kan- sas, is a general contractor engaged in the construction industry. The Respondent annually purchases and re- ceives at its Fort Leavenworth jobsite and other jobsites located in the State of Kansas goods valued in excess of $50,000 directly from points outside the State of Kansas. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that International Union of Elevator Constructors (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The issue is whether the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging Warden, who is an employee of the Respondent, because he re- fused to hold a reserve gate sign at the Fort Leaven- worth jobsite where employees of a subcontractor had established a lawful primary picket line. A. Facts The Respondent is a general contractor at the Fort Leavenworth jobsite. Mid-States Elevator is a sub- contractor at that jobsite. Since April 20, 1994, Mid- States’ employees, whom the Union represents, have been on strike and have maintained a lawful primary picket line at the Fort Leavenworth jobsite. The Re- spondent’s employees are not represented by the Union or any other labor organization. On April 21, 1994, the Respondent directed Warden to come to work the next day and hold a sign estab- lishing a reserve gate for the Respondent’s employees. The owner of the Fort Leavenworth jobsite would not grant the Respondent permission to place the reserve gate sign in the ground or post the sign on a fence. On April 21, 1994, Warden told the Respondent that he did not want to hold the sign because he did not want to become involved in the labor dispute between Mid-States and the Union and because he had friends who were employees of Mid-States who were engaged in the strike. That day the Respondent discharged War- den for refusing to hold the sign. B. The Parties’ Contentions The General Counsel contends that Warden has a Section 7 right to refuse to engage in activity that en- meshes him in a labor dispute and the Respondent’s demand that Warden hold a reserve gate sign impinges on that Section 7 right. The Respondent contends that the Board will be interfering with the Respondent’s right to create and maintain a reserve gate, if it finds a violation for discharging Warden. C. Analysis For the following reasons, we find that Warden’s re- fusal to hold the reserve gate sign is protected by Sec- tion 7, and therefore the Respondent violated the Act when it discharged him.1 117 DAWSON CONSTRUCTION CO. 2 Even accepting that the sign simply indicates neutrality, that is a position which is being involuntarily imposed on the employee. An employee cannot be forced to make a statement indicating neutrality any more than he or she can be forced to make a statement either in support of or opposition to a union. We believe that these are the critical facts. At the Fort Leavenworth jobsite, because of a labor dispute with Mid-States, employees of Mid-States represented by the Union established a primary picket line. In re- sponse to that picket line, the Respondent ordered Warden to hold a sign at an entrance to the jobsite de- claring that entrance reserved for the Respondent’s em- ployees. When Warden refused, because he did not want to become involved in the labor dispute between Mid-States and its employees, the Respondent fired him. At a construction jobsite where there is a labor dis- pute between an employer and its employees, a neutral employer may avoid becoming enmeshed in picketing related to the dispute. To do so, the neutral employer may establish a gate reserved for the exclusive use of its employees. Building & Construction Trades Coun- cil (Markwell & Hartz), 155 NLRB 319 (1965), enfd. 387 F.2d 79 (5th Cir. 1967), cert. denied 391 U.S. 914 (1968). A reserve gate sign makes clear that the en- trance is not for the use of employees of the employer with whom there is a labor dispute. Thus, the reserve gate sign is the means by which the neutral employer makes known that it is not involved in the labor dis- pute. The Respondent’s right not to become enmeshed in the Mid-States labor dispute is clear and is not at issue in this case. That, however, does not end the matter. By establishing the reserve gate disassociating itself from the labor dispute, the Respondent unavoidably makes a statement about the labor dispute. An em- ployee holding the reserve gate sign is participating in making that statement. We have held that an employer may not require em- ployees to disseminate antiunion literature. Scientific Atlanta, 278 NLRB 467 (1986). We have also held that an employer may not distribute campaign mate- rials in a way that effectively forces employees to ac- cept or reject the proffer, thereby ‘‘pressuring employ- ees to make an observable choice or open acknowledg- ment of their union sympathies.’’ E.g., A. O. Smith Automotive Products Co., 315 NLRB 994 (1994). The principle at work is the Section 7 right to engage in protected concerted activity or to refrain from such ac- tivity. In other words, the right to engage in union or- ganizing or not is a protected right with which an em- ployer cannot interfere by compelling an employee to participate in the dispute. The Fifth Circuit has described this protection as ‘‘the right to express an opinion or to remain silent.’’ Texaco, Inc. v. NLRB, 700 F.2d 1039, 1043 (5th Cir. 1983). We believe that principle is applicable to this case. An employee who complies with an order to hold a reserve gate sign becomes a visible instrument in the implementation of the employer’s decision to establish a reserve gate, thereby participating in the employer’s statement about the labor dispute. Because a properly established reserve gate system ordinarily has the ef- fect of ‘‘forc[ing] the union to picket only the [gate re- served for employees of the employer with whom there is a labor dispute],’’ Electrical Workers IBEW Local 501 v. NLRB, 756 F.2d 888, 894 (D.C. Cir. 1985), an employee’s holding a reserve gate sign could be viewed by others as being indicative of the position he is taking with respect to the strike.2 Just as an employ- ee’s right to refrain from expressing an opinion about union organizing cannot be compromised by forcing him to disseminate, accept, or reject antiunion lit- erature, we believe the right to remain silent includes the right not to be compelled to participate publicly in making the Respondent’s statement about the Mid- States labor dispute. The dissent acknowledges that the Respondent re- quired Warden to hold a sign that makes a statement ‘‘about’’ the strike. Contrary to our dissenting col- league’s assertion, Warden’s refusal to hold a sign ‘‘about’’ the strike falls well within the protections af- forded by Section 7 of the Act. As the court recog- nized in Texaco, supra, the Act broadly protects ‘‘union-related speech’’ and ‘‘union-related silence.’’ 700 F.2d at 1043. Here, as the dissent virtually con- cedes, the reserve gate sign makes a statement ‘‘relat- ed’’ to the Union’s strike against Mid-States. There- fore, Section 7 grants Warden the right not to make that statement, regardless of whether the statement ad- dresses what some might term the ‘‘merits’’ of the strike. Indeed, it is our experience that employees fre- quently wish to disassociate themselves entirely from a labor-management dispute and, in effect, express no view on ‘‘the merits.’’ Section 7 protects their right to do so, and we find no basis in the Act or its policies for narrowing its protections in the manner advocated by our dissenting colleague. In sum, when the Respondent ordered Warden to hold the reserve gate sign, it was requiring him to par- ticipate in making the Respondent’s statement about the Mid-States labor dispute. When Warden refused, he was exercising his right to remain silent about the dis- pute. We conclude that an employer’s right to establish a reserve gate does not extend so far as to permit over- riding an employee’s Section 7 right to remain silent by requiring him to participate in establishing that gate by holding the reserve gate sign. Accordingly, when the Respondent discharged War- den because he refused to hold the reserve gate sign, it violated Section 8(a)(3) and (1). 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ CONCLUSION OF LAW By discharging Warden because he refused to hold a reserve gate sign, the Respondent has engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, we shall order the Respondent to offer Warden immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The Respondent shall also be required to expunge from its files any and all references to the unlawful discharge, and to notify the discriminatee in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Dawson Construction Company, Inc., Fort Leavenworth, Kansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they refuse to hold a reserve gate sign. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Christopher Dean Warden full and imme- diate reinstatement to his job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the un- lawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on request, make available to agents of the Board for examination and copying, the payroll records, social security records, timecards, per- sonnel records, and all of the other records necessary to analyze the amounts due under the terms of this Order. (d) Post at its facility in Fort Leavenworth, Kansas, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Re- gional Director for Region 17, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. MEMBER TRUESDALE, dissenting. Unlike my colleagues, I would not find that the Re- spondent acted unlawfully by discharging Warden be- cause he refused to hold a reserved gate sign. The sign read: FRONT GATE NOTICE TO SUBCONTRACTORS, SUPPLIERS AND EMPLOYEES OF DAWSON CONSTRUCTION CO., INC. THIS ENTRANCE IS RESERVED FOR THE SOLE AND EXCLUSIVE USE OF EMPLOYEES, SUPPLIERS AND BUSINESS VISITORS OF DAWSON CONSTRUCTION CO., INC., AND ALL SUBCONTRACTORS AND SUPPLIERS TO DAWSON CONSTRUCTION CO., INC. WITH THE EXCEPTION OF MID STATES ELEVATOR COMPANY. EMPLOYEES, SUPPLIERS AND BUSINESS VISITORS OF MID STATES ELEVATOR COMPANY ARE REQUIRED TO USE THE BACK GATE ONLY. THESE RESTRICTIONS ARE STRICTLY ENFORCED. Although the language appearing on the sign does not specifically mention the Union’s labor dispute with Mid-States Elevator Company, I agree with my col- leagues that, at least to one familiar with labor rela- tions issues, the sign does make a statement about the strike. That statement, however, does not concern the merits of the strike. Quite the reverse: it says that the Respondent, Dawson Construction, is neutral with re- spect to the strike—it is not involved on either side in any way. As my colleagues recognize, it is that neu- trality that allows the Respondent to maintain a re- 119 DAWSON CONSTRUCTION CO. served gate for its employees, suppliers, and business visitors that will not be subject to the Union’s picket- ing of Mid-States. By instructing Warden to hold the sign establishing the reserved gate, the Respondent was directing him to convey only the message of its own neutrality. That message cannot, in my view, reason- ably be read as implying anything about Warden’s po- sition (assuming he had one) with regard to the strike. Had Warden carried the sign, the only statement he would have made by that action would have been, ‘‘My employer is not involved in the labor dispute be- tween Mid-States and the Union.’’ I also disagree with Member Browning’s conclusion that Warden’s position amounted to a refusal to work at all or to cross the Union’s picket line. I do not be- lieve the record supports her position. As Member Browning observes, the parties have stipulated that there was a lawful primary picket line at the jobsite ‘‘at all material times, since April 20, 1994.’’ Warden alleged in his original charge that he was working overtime on April 21, 1994, ‘‘the day after the strike,’’ when he was asked to come in an hour early the next day and ‘‘hold the Mid-State sign.’’ He further stated that ‘‘I told [the supervisor] that I really didn’t want to do it[.]’’ It thus appears, from Warden’s own state- ments, that he continued to work (presumably at the picketed jobsite) after the strike had begun and that the only task he refused to perform was that of holding the reserved gate sign. On this record, I do not find (and the complaint does not allege) that Warden was with- holding his services in solidarity with the Union or that he was fired for refusing to cross the picket line. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT discharge our employees because they refuse to hold a reserve gate sign. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Christopher Dean Warden full and immediate reinstatement to his job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits suf- fered as a result of the discrimination against him, with interest. WE WILL remove from our files any reference to Warden’s unlawful discharge and WE WILL notify him in writing that this has been done and that the dis- charge will not be used against him in any way. DAWSON CONSTRUCTION COMPANY, INC.