Mcever Engineering, Inc.

MCEVER ENGINEERING McEver Engineering, Inc. and Thomas Murray.. Case 16-CA-10750 28 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 April 1984 Administrative Law Judge Harold Bernard Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in sup- port of the decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. As found by the judge, the employees struck in protest over being required to work in what they perceived, to be unsafe weather conditions. It was a one-time event, and the mere fact that the employ- ees' withholding of services was of short duration or ended when the weather conditions improved does not render it a "partial" strike.2 Thus, in our view our dissenting colleague mischaracterizes the employees' concerted work stoppage in this case as an unprotected partial strike. Further, the facts do not support our dissenting colleague's finding that. such unsafe conditions were "a normal concomitant of the job." The Re- spondent's project superintendent, Bill Brickell, tes- tified that he fully expected that there would have been a "rain-out" had the project manager not or- dered otherwise due to pressure from the customer. Additionally, while the employees testified that they had worked in the rain in the past, they fur- ther testified that they had never worked in such a hard rain and had never worked as high up on the tank in the rain. Thus, the dangers of working that day as perceived by the employees and the Re- spondent's project superintendent were not inher- ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings . In adopting the judge's' finding that the Respondent unlawfully dis- charged seven of its employees because they engaged in a concerted work stoppage in protest over unsafe working conditions, Member Hunter finds it unnecessary to rely on Tamara Foods, 258 NLRB 1207 (1981) In the absence of exceptions we adopt the judge's finding that the post- discharge misconduct of two of those employees does not warrant denial of their reinstatement rights under Clear Pine Mouldings, 268 NLRB 1044 (1984) 2 See, e g, E B. Malone Corp, 273 NLRB 78 (1984), Richard Schubert Associates, 222 NLRB 867 (1979), Union Boiler Co, 213 NLRB 818 (1974) 921 ent in the job, and the risks attendant to working in those conditions were not assumed by the employ- ees when they accepted employment with Re- spondent. Accordingly, the cases cited in the dis- sent, Daniel Construction Co., 264 -NLRB 770 (1982), and Daniel Construction Co., International, 267 NLRB 1213 (1983), are, in our view, distin- guishable. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, McEver En- gineering, Inc., Cleburne, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would not adopt the administrative law judge's finding that the Re- spondent violated Section 8(a)(1) of the Act by dis- charging seven employees who refused to work 'in the rain. In my view, the employees were engaged in an unprotected partial strike and, accordingly, the Respondent did not violate the Act by dis- charging them. The Respondent, an engineering and construc- tion firm, was retained by the Texas Lime Compa- ny to perform repair, installation, and maintenance work at its plant near Cleburne, Texas. The work consisted of installing new equipment, rebuilding old equipment, and performing other construction work on the top and sloping sides of a 65- to 80- foot-high lime tank. The Respondent's employees at the plant site were unrepresented. In the early morning of 12 October 1982 it was raining intermittently lightly and heavily as the Re- spondent's employees began arriving at the plant for work. For approximately the first hour and a half the employees took shelter from the rain in the toolhouse and awaited orders from Plant Superin- tendent Brickell. At approximately 7:30 a.m. Brick- ell informed the employees that Project Manager Steger had decided not to call a "rain-out," and or- dered them to begin work. A number of employees complained to Brickell about working in the rain and that it was too dangerous, but all began work. Several were assigned to work on the top of the tank, while others were assigned to work on ele- vated platforms around the sides of the tank or on nearby conveyor legs. Twice during the remainder of the morning the employees- returned to the toolhouse when the rain became too heavy. The first time occurred at ap- proximately 9:30 a.m. and lasted until the rain slackened about 45 minutes later and Brickell or- 275 NLRB No. 128 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dered them to return to work. As they had earlier, several of the employees • complained generally to Brickell about having to work in the rain, that they were getting wet, and that it was too dangerous, but again all returned to work. The employees took shelter in the toolhouse for the second time at approximately 11:45 a.m., remaining there until their noon lunchbreak. - When noon arrived seven of the employees drove to a nearby site across from a park to have lunch. While- there they discussed the poor work- ing conditions caused by the rain at the plant that morning. They decided -not to return-to work as long as the rain continued. When the seven employees failed to return to work after lunch, Superintendent 'Brickell -sent the company clerk to their lunch§ite to ascertain , the reason for their absence. When the clerk arrived at the site, the employees told him they were not going to return until it stopped raining, that when it stopped they would return. , When the -clerk informed Brickell that the em- ployees had replied that they "were not ready ' to come back to work," Brickell instructed the clerk to prepare termination slips for each of them. Brickell also later informed Steger of this when Steger came back from his lunchbreak. Steger at that-time questioned -the remaining employees who had returned and' who were working on the top of the tank if they had any idea 'what the problem might be with, their coworkers. When all replied that -they, di& not know, Steger agreed ,with Brick- ell that the seven-employees should be fired. - When the rain ceased around 1:30 p.m. the'seven employees returned to the ' plant= for= work 'as they had told the clerk' they would. All were immedi- ately informed that they had been -terminated. After some heated discussion -and angry confrdnta- tions with Steger and another Texas Lime official, the seven employees packed up their tools and left. The judge found that, insofar` as the seven em- ployees had refused to" work -because of''adverse working` conditions, the Respondent ;violat'ed Sec- tion ` 8(a)(1) of the Act by 'discharging them. The .judge noted that.the employees were'unrepr'esented and that several had slipped, and received minor electrical shocks during the course of the morning as a result of the wet'and'muddy conditions on top of • the - -tank. I For - the,! reasons set: forth. below I would reverse the judge's finding.'- unquestionably true that employees- have- a it-is protected right to engage in a concerted- work stoppage to protest adverse working conditions. It .isequally_true, however, that this right isa limited one. As Justice Stewart observed in American Ship Building Co. v. NLRB:1 [T]here is nothing in the statute which would imply that the right to strike "carries with it" the right exclusively to determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work-nothing more. The issue, in this case is whether the employees' re- fusal to return to work until it stopped raining ex- ceeded those limits. I conclude that it did. -' The Board has consistently held unprotected so- called partial strikes where employees elect to con- tinue working while at the same time refusing to follow a management directive. Thus, for example, the Board 'has found lawful the discharge of em- ployees who, although not engaging in a-total work stoppage, refused to work overtime,2 to work on Saturdays,3 or on holidays.4 As the Second Circuit recently explained in enforcing the Board's order in one such case: To permit an employee in such a fashion uni- laterally to dictate the terms and conditions of employment would lead to chaos. An employ- er is entitled to receive from a person who opts for continued employment the full and undiluted performance of the duties for which he is hired and paid. The employee cannot have it both ways, i.e., continue, to be em- ployed but insist on working part-time as an economic' weapon, any more than the employ- er would be permitted unilaterally to pay an employee less than the agreed upon wages for his.services:5 . In the instant case there is no question that working in-the rain was a mandatory condition of employment. The employees were .:ordered, not asked, to work that day. Nevertheless, seven -of these employees decided that they were not going to obey that order, yet expected to be allowed to continue working once the rain stopped.. Thus, they sought "to have it both ways,", i.e., to contin- ue being employed, but insist on working only in fair weather. Indeed, they in fact, realized-that ob- jective, effectively imposing their' own terms and conditions' of employment 'on the Respondent. By was , raining they refusing to,, , work- while it' r 380 US 300, 310 (1965) •2 See, ,e.g., Lake Development Co, 259 NLRB 791 (1981), GAIU Loctil 13-B (Western Publishing Co), 252 NLRB 936-(1980), and cases cited therein 3 E g , Wolverine Worldwide, Inc, 247 NLRB 921, 924 (1980), Dependa- ble Lists, Inc, 239 NLRB 1304, 1313 (1979). _ 4 Laredo Packing Co, 241 NLRB 184 (1979) , 5 NLRB v. GAIU Local 13-B, 682 F 2d 304, 308 (2d Cir 1982) MCEVER ENGINEERING achieved unilaterally what the Respondent had ear- lier declined to grant them-a "rain-out." The employees, of course, - were protesting not merely undesirable working conditions but what they claimed to be unsafe conditions. The Board has twice recently held, however, that a partial strike is not rendered protected merely because the object is unsafe conditions when those conditions are a normal concomitant of the job. Thus, in Daniel Construction Co.," the Board found lawful the discharge of an employee who refused to enter a radioactive pipe at a nuclear power plant. 'And in Daniel Construction Co., International,7 the Board found lawful the discharge of two employees who refused to climb a scaffold. In both cases the Board specifically found that the dangers feared by the employees were inherent in the jobs and were well known , by them when they assumed employment: Moreover, the Board noted, in neither case had the employees made any demand on the employer to take steps by which the jobs could be made safer. In the instant case, work on the 65- to 80-foot- high lime tank was also clearly inherently danger- ous. That was true regardless of the weather condi- tions as shown by the following credited testimony of Plant Superintendent Brickell: They [the working conditions] are bad and worse. There is no good, working ''conditions, not one of them. You have either got lime in your eyes, , you got quick lime • on you, - it is burning you. If it rains it is slick, it is muddy, it is messy_ If it is. dry and the wind is blow- ing, it gets in your nose and in your lungs and they just-the working conditions were not good at the lime plant. According to Brickell all employees were fore- warned of the poor working conditions at the plant when they applied for work. Further, several of the employees who testified at the hearing admitted that they had worked in the rain before at the plant-some even volunteering to do.so on at least one such occasion." The employees also admitted 6 264 NLRB 770 (1982) 7 267 NLRB 1213 (1983) .8 Contrary to my colleagues, I do not find it significant that the em- ployees testified that they had never before worked in such a hard rain or as high up on the tank in the rain - It•is undisputed that the Respondent permitted the employees to take shelter in the toolhouse whenever the rain became intolerable and the employees admitted that they' had worked in the rain at heights of up to 20 feet on previous occasions Ac- cordingly, I find distinguishable Richard Schubert Associates, 222 NLRB 867'•(1976), and Union Boiler Co, 213 NLRB 818 (1974), cited by my col- leagues, insofar as there was no showing that the adverse working condi- tions in those cases were similarly a normal concomitant of the job Fur- ther, in the only other case cited by my colleagues, E B Malone Corp, 273 NLRB 78 (1984), the issue was whether the work stoppage' was an intermittent strike, not whether it was a partial strike 923 that they never made any demand that the Re- spondent provide them with safety equipment, or that any other- protective measures be taken. Indeed, although claiming that they had slipped in the mud and had received minor electrical shocks, the employees admitted that not one of 'them ever brought this to the Respondent's attention. Finally, the mere fact that the employees were unrepresented does not render their conduct pro- tected. The Board has never held that partial strikes are protected if they are engaged in by un- represented employees. Indeed, in both of the Daniel Construction cases the employees were also unrepresented yet, as discussed above, the Board held their partial work stoppages unprotected and their discharges lawful. Accordingly, contrary to my colleagues, I would find that the Respondent lawfully discharged the seven employees.9 9 As I would find that the discharge of the employees was lawful, I find it unnecessary to pass on the judge 's discussion of whether under Clear Pine Mouldings, 268 NLRB 1044 (1984), the employees' postdis- charge misconduct would warrant denial of reinstatement DECISION STATEMENT OF THE CASE HAROLD BENARD JR., . Administrative Law Judge. I heard this case on February 22 and 23, 1983, in Fort Worth, Texas, pursuant to charges filed. November 1982 and a complaint issued the next month on December 29, 1982, which 'alleged' that the- Respondent discharged seven employees because they'had engaged in protected concerted activities, and that the Respondent thereby violated Section 8(a)(1) of-the Act. . On the entire'record, including the demeanor of the witnesses and briefs filed by the parties, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Respondent is a Texas corporation engaged in the en- gineering and construction business from its location in Cleburne, Texas, and annually purchases supplies valued in excess of $50,000, directly from suppliers located out- side Texas. I find, as admitted, that the Respondent is an employer engaged in commerce within the meaning of Section '2(6) "and (7)'of the Act. II. THE UNFAIR LABOR: PRACTICES On October 21, 1982, Respondent's 11 construction crew employees with other electrical crewmembers were performing repair, installation, and maintenance work at the Texas Lime Company plant near Cleburne, Texas, Respondent serving as an independent contractor there. The work consisted of installing new equipment, rebuild- ing old equipment, and construction, including replacing 924 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD or repair of guardrails ' and other structures on the top and sloping sides of a, lime tank 65 to 80 feet high, as - well as performing similar work at lesser elevations and on the ground. All-of the work was outside, and required welding, cutting, grinding, metal fabrication, and electri- cal.power. In addition, a cherry-picker-sized crane was employed to lift employees from the ground and place them on the top or sides of the lime tank where, entirely exposed to the elements, tasks were ' to be performed. The employees were not represented by a labor organi- zation. - The weather . on October 21 was 'rainy-at times heavy-with intermittent light showers, -mist and fog, oc- casional letups, and, early in the day, lightning and thun- der. This did not augur .well for employees or Respond- ent because their work location was - a difficult one under the best of ;weather conditions . Thus, Respondent's project- superintendent Bill Brickell testified: - [The working conditions] they are bad and worse. There is no good working conditions,' not one of them. You have either got lime in your eyes, you got quick lime on you, it is burning you . If it rains, it is slick,, it is muddy, it is messy. If-it is dry and the wind is ;blowing, it gets in your, nose and in your lungs and they just-the working conditions were not good .at the lime plant. Brickell's description explains why, as he-testified fur- ther on cross-examination, he fully expected a rain-out to be declared on -October 21, due to the weather condi- tions; in fact, he admitted he would have declared a rain- out' except that.-'his 'superior, Project -Manager Mel Steger, under pressure 'from Texas Lime officials to con= tinue .working during a power-outage-caused plant shut- down, insisted that respondent employees work, telling Brickell, "[W]e was goiiig' to work if he [Steger]'had to hold an -umbrella for the hands,' as recalled by crane op=- erator Wayland Bachhofer.' Despite shouts from some employees ' assembled ' in the toolhouse awaiting for orders 'from ' Brickell , and` Steger for a rain-out (cancellation of the ' workday); griping about working in the 'rain , 'and unsafe conditions , -the em- ployees were ordered to start work and did so: If is note- worthy that Brickell is quoted by employee Preston Ray, without denial by- the former, as stating he did not 'know what a Texas Lime official being consulted by Steger on= this decision t`hag to ' do with it: If it is- raining we • can't' work.'-" 'Further noteworthy-' is testimony by' welder = Helper' Thomas Murray - that he told' Brickell at the 'time it was= too dangerous'-to work on the tank in the,iain.'Brickell;' however, was not' asked to' deny the testiniony'by em- ployees above 'that they protested having to ' work • in' unsafe conditions in the "rain while assembled in'the tool-i shed' awaiting- orders. Instead, Respondent counsel= asked Brickell whether, 'while) Brickell 'was on top--ofi-the tanks,' any individuals said anything about unsafe conditions and he replied no, thereby leaving unrebutted and credited the employees' testimony on this point. See Purolator Ar-• moved,= Inc., -268 NLRB :1268 aY 1276 (1984). , In any event, during the ensuing hours that morning, employees did in- fact' confront serious hazards ansing from the already dangerous but then rain-worsened con- ditions at the lime plant. Thus, employees reported accounts of receiving elec- trical shocks while working with electrically powered tools and equipment in the wet weather, slips, falls, and near-falls on heavily lime-encrusted surfaces on catwalks and tank slopes- where 4-foot guardrails failed to offer complete protection as they were constructed with wide openings, concern over falls from considerable heights, 75 to 80 feet above the ground, and poor visibility due to lime blowing in the wind and muddying, surfaces, includ- ing sticking to the windows of a cherry-picker crane used to, transport employees to and from the tank tops. This caused the crane operator to lean outside the oper- ating cab to get a clear view of employee hand signals used to, guide him in transporting'the men and equip- ment, welding rods, grinders, and tools in 5-gallon buck- ets up onto the elevated'wo'rk locations. Attached to the. end of the crane boom was a basket measuring 4 feet by 4 feet where employees were carried with equipment to the guardrail area -on the tank.- The basket, a movable container which moved forward and backward, required the transported employee to crawl out over it and then down the other side of the handrail onto the catwalk. The crane operator, leaning outside, the cab to see as best he could what "he was doing up there" had to stretch his body to reach the crane controls and thus was oper- ating the crane from an awkward, unsafe • position. The employee passengers confronted these conditions, the complex maneuverings into and out of the basket in poor visibility onto surfaces slickened by wet lime at consider- able heights in the, control of an operator obviously handicapped by rain, wind and blowing lime, at different times throughout the morning for, as the rain would fall harder, the men would be brought down from, their perches, assembled in the toolshed, and then be ordered back up again whenever the rain slackened. They had no protective clothing and were wet from the rain through- out .the morning. Other employees, assigned to work at lower elevations or on the ground, reported that condi- tions made it impossible to work. Thus, during a hard rain interval while the men were assembled in the toolshed, employee Preston Ray, a lead- man formerly classified in the spring as a working fore- man, and reassigned that morning to ground work, testi- fied there was a lot of discussion by employees about how hazardous it was on the tank tops, and -that he told Brickell, "[t]his is a bunch of bull, working in these, kinds of, conditions." Ray. testified he had gotten shocks that morning during welding work. He further testified that Brickell acknowledged • his complaint' 'stating,' ."I, know it-I tried to get him [Steger] to send them home, but it is not me, it is Mel [Steger]." Ray also -complained to Steger=-that "it was kind of crazy to try to work in that kind of weather" but Steger merely: referred to the fact that a Texas Lime Company official wanted the- work done and when the rain slackened- ordered the men back to work. Ray's version is credited over Steger's since the latter's • general denial -did not specifically address Ray's MCEVER- ENGINEERING 925 account. Moreover, other employee versions- further cor- roborate employee complaints being communicated during the • rain-forced interlude. Welder helper Kevin Morgan placed Brickell with employees-as well as Steger-in the shed when -employees were grumbling and complaining about not wanting to go back there (to worksites) that they were already wet.' Employee Thomas Murray testified he told Steger and Brickell that it was too dangerous "out there," that it was "slick," and that he recalled just about everyone complained ,at one time or another to them. After returning to their worksites under orders to do so, the employees shortly afterward were forced-by re- newed rainfall to descend again and seek shelter until, as it continued to rain, ,the lunch.period, 12 to 12:30, ar- rived. The seven employees involved in this case, five of whom had been working on the tank slopes or environs on elevated high areas, and two • who had been working on an elevated platform until assigned other work on the ground, drove together to a nearby point across from a park and had lunch. During this time, the seven employ- ees discussed the conditions 'described' above, some ex-' pressed an unwillingness to return to work in wet clothes, and the possibility that 'a dangerous fall could' occur and the person involved would never be able to work again ; It is clear from the corroborating testimony, and therefore found, that the seven ' employees 'together reached a decision not to return'to work in the rainy, wet, dangerous working conditions prevailing at the ,lob-' 1 1, site. _ ` ' ' - When the seven employees failed to return for' work from their nearby lunch by 12:30, Brickell sent the coni= pany clerk, Eddie -Challenger, to their location to` see what the problem was. The location was known 'to them, as they had seen the men parked in their vehicles when: Brickell and Challenger had themselves returned from, lunch in town: There is a variance in the accounts ren dered by Challenger and employees,' the former testify-' ing he was told upon =inquiry into what `the men were' doing, that they were just not ready to go back to, Work. yet, and the -latter-two employees-testifying that they' told Challenger, they were not going to return to work' until it stopped raining, that when it stopped, they would return. Challenger was' not asked to deny the specifics' in the employees' accounts; -moreover, when Steger testi- fied,-he stated Challenger told him that, "men had com-' mented that they were not going to- come back"to. work," a more} blunt account than even Challenger de scribed' as being given to him by the employees, suggest- ing a^possible self-serving tailoring in Respondent's posi-; tion on' this point. The'-employee-version, int'any. event,) was not, specifically addressed by Challenger and there' fore remained undenied. It is credited. ' • ' W_hen:Brickell learned from Challenger.'that, the men' "were not ready to come back to, work" he instructed. Challenger to fill out termination slips on the seven em- ployees.for failing to,return to work. While Respondent' elicited testimony that Steger "investigated" the reasons for the employees'- action before ratifying Brickell's ter- mination of the ,employees shortly thereafter,. such testi-: mony described merely. Steger's going onto the-tanks where.. substituted employees-electricians-were per- forming' the work and asking if they knew what the problem was. Since any genuine interest or curiousity about the employees'-'problems ' could have; on the face of it, been quickly satisfied by a short visit to the' em- ployees down the road and a question posed by Steger (or Brickell) to'Preston Ray, a leadman whom Respond- ent claims was one of its full supervisors, and who was known -by Respondent to be with the employees, the fact that no such genuine' interest was, present-instead only retaliatory anger for the employees' concerted action- seems apparent, since -Steger made no such effort. The employees returned to the jobsite around 1:30 p.m. when the rain stopped, learned they had been termi- nated and, after heated discussions and angry confronta- tions with Steger and a Lime Company official by one or more employees, packed up their tools and left the prem- ises. While there was testimony about these extraneous events, and past rain-out policy, beer dunking, alleged assault, and threats following the terminations, a prior warning about reporting back to work on time, and a rule- concerning the'reporting of unsafe' conditions, both Steger and Brickell admitted the employees were termi- nated solely because they had failed to return to work by 12:30 'p.m., the end of the employees' lunch period and therefore such extraneous matters are irrelevant to the issue in this case, which is solely whether employees were discharged for engaging in protected concerted ac- tivities. • ' ' Analysis and Conclusions The law is, clear,., has been stated often, and need not be belabored. When employees acting in concert_to-pro- test the existence ;of what they in good faith perceive to be unsafe, working 'coriditions_withhold their labor from the employer for such purpose they are considered to be engaged in -,concerted -activity protected under,Section 7 of the Act, and may not lawfully. be punished by their employer, for; their conduct. NLRB v. Washington Alumi- num Co., 370U.S. 9 ,(1962), Union Boiler Co., 213 NLRB 818 (19.74);, Du-Tri "Displays, 231 NLRB 1261 (1977); E. R.,.Carpenter Co.,! 252; NLRB 18 (1980); Service Machine & Shtpb.uildtng ,Corp., 253, NLRB 628 (1980). Nor would Respondent's rules, either the rule requir- ing employees to notify or, report to the Respondent any unsafe conditions or the rule that-,employees report back from lunch on -time, prevent the employees from taking action, "if their action is a means of protesting what they perceive•,to ibe intolerable working, conditions." Tamara Foods„258-NLRB,1307, 1.308,(1981). As,,the,Board noted further,, whether- or .not the protested ;working condition was. as objectionable as believed by: employees• or,wheth, er. the-employees. could have, pressed their concerns in -a more -effective or reasonable manner, is, irrelevant to whether, the activity, is.-protected- by the Act. Nor does the, absence of a specific -demand .render their conduct unprotected, particularly where, as here, the employees are unrepresented and the employer, from surrounding circumstances, should, reasonably see that "improvement of working conditions 'is behind the employees' action." 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tamara -Foods, supra, and cases cited therein, and Wagner Smith Co., 262 NLRB 999 (1982). Respondent correctly points out on brief that in a case involving -similar issues,' the circuit court therein found employees unprotected inasmuch as no employee griev- ance had been presented to the employer therein for res- olution before the employee activity, occurred. However, in a later Board case adopting the decision by Adminis- trative Law Judge Robert Leiner, it was reiterated, "Nor does the fact that employees fail to make a specific demand to the employer automatically render their con- duct unprotected." Serendippity-Un-Ltd., 263 NLRB 768, 775 (1982). It is, moreover, a matter not fairly in dispute given the above findings that the employees had specifi- cally directed their complaints to Respondent's admitted agents Brickell, Challenger, and Steger prior to their concerted action in refusing to return to work after lunch until the rain stopped. As, stated in a. case involv- ing employees assigned to do welding work on the slop- ing sides of a high silo in recurring snow showers, off and on all day, and hampered by poor visibility, "Cer- tainly the Act does not require that construction workers in such a situation use words of art and say in precise words that we are a group of employees, who are telling you for the third or fourth time that we-are not going up on that silo this morning, because it is unsafe." Sargent Electric Co., 237 NLRB 1545 at 1548'(1978). It is note- worthy too, of course, that the dangers inherent in work- ing in the rain at this lime plant including the danger of electricial shock, would seem to be so 'apparent that a remark by the employees would be unnecessary in any event. Service Machine & Shipbuilding Corp., 253 NLRB 628; 630 (1980). Steger, as undenied, was under a lot of pressure to get the work done, a plausible explanation for his fast adoption, of Brickell's application of, the, har- shest type of penalty. for the employees'. nonreturn to work. See Wagner-Smith Co., 262 NLRB 999, 1002 (1982). '' Nor is it of consequence that the seven dischargees re- fused to return to work without reciting the conditions that the employer would have to meet in order for them to return to work, or that the employees, ' on return to the jobsite later in the afternoon, did not again specifical- ly refer to the dangerous conditions which had precipi- tated their concerted action. Diversified Case Co., 263 NLRB 873 (1982): As quoted therein"at 879 from the Su- preme Court's decision in NLRB v. Washington Alumi- num, 370 U.S. 14 (1962): _ , . • . - To compel: the Board to interpret and - apply' . language 'in the, restricted fashion ..' .'would only tend to frustrate the policy, of the- Act to• protect the right. -of, workers to., act together-, to better their working conditions. `Indeed; as indicated 'by this very case, such an interpretation of § 7 might place burdens upon employees. so 'great, that "it would ef- fectively nullify-the right to engage"in concerted,ac- tivities- which that section 'protects. The ... %. em- ployees here were part of a small group of employ- ees who were wholly unorganized. They had no ' NLRB v H Marsden, 701 F 2d 238 (2d Cir 1983) bargaining representative and, in fact, no representa- tive of any kind to present their grievances to their employer. Under these circumstances, they had to speak for themselves as best they could. Finally, Respondent's contention that there is no credi- ble evidence about four employees that they engaged in any group action that day inasmuch as they did not testi- fy is rejected as lacking in ment in light of unrebutted testimony by employee witnesses that all seven named dischargees decided not to return to work for the rea- sons established and described above. Respondent treated all seven as a group when Brickell instructed their termi- nation slips be prepared for failing to return to' work after lunch on October 21, and - Steger ratified such action against all seven employees. 'Sargent Electric Co, 237 NLRB 1548. I find that the seven employees were discharged for refusing to return to work in unsafe rainy, wet condi- tions, and that such discharges, resulting from the em- ployees having engaged in protected concerted activities, violated Section 8(a)(1) of the Act.- The Alleged Supervisory Status of Leadman Preston Ray Preston Ray was first hired by Respondent- in April 1981 and worked as a fitter for 6 months. He was about the third highest in seniority and was made foreman in the construction crew until the spring of 1982 when a series of layoffs reduced the crew to 11 employees, at which time' Ray was reduced to the position of working foreman, the- equivalent of a leadman-type position. The record shows that, apart from using a clerk's desk in the office about one-half hour daily, Ray - had no special privileges or fringe benefits not accorded rank-and-file employees, like them was hourly paid, received pay for overtime work, and spent 90 percent of his time perform- ing manual work alongside other employees. In fact, Ray -had been told he would have to start-"working with the hands, just like one of the hands" (employees) 8 weeks or so before his termination. Ray never hired or fired any employee, received no input from higher supervision regarding pay increases, which were recommended by Brickell and approved by Steger. Ray never disciplined employees, granted time off, or assigned overtime, and worked the same hours as other employees, reporting to work at the same place they did: He was paid $12.93 an hour, about 25 cents per hour more than the next classification below him. While Ray went over job assignments with' Brickell, as did Foreman, George Mizelle,'and assigned men to - work,.it appears he did. so based merely on what the work- called for, that is, -a welder, fitter, or helper and so forth. This early morning assignment was frequently changed' 'by Mel Steger.and, in any event, appears to have ' been a routine matter for Ray, not requiring or involving the exercise of independent judgment. Ray attended -weekly undefined "policy" meetings with management, also as did Mizelle, and was consulted by Brickell when layoffs were required; however, on the single-occasion reported when Ray did not agree with Brickell, the latter did not MCEVER ENGINEERING accept Ray's position so that in the single instance re- ported it is clear that Ray's recommendation was the subject of independent scrutiny or review rather than ready acceptance.' Suffice to say further that Ray's re- peated recommendations-be they- to be considered as being delivered in an indirect manner .or not-that the hands not be required to work on October 21 due to the rain and unsafe working conditions-were also .-not ac- cepted by higher management. Given the fact that Ray shared equally in employment benefits with other em- ployees, with whom he. regularly spent 90 percent of his time in manual work, had no authority to make changes in their working conditions or to effectively recommend such action, and his selection of employees for work did not require the exercise of independent judgment but was routine in nature, I find that Ray was not a supervisor as defined in the Act. Hydro Conduit Corp., 254 NLRB 433, 437 (1981). - , CONCLUSIONS OF LAW 1. McEver Engineering, Inc: at all times material • has been and is an employer 'engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Preston Ray is not a supervisor as defined in the Act. 3. By discharging Thomas Murray, Ector Yzaguirre, Kevin Morgan,, Ron Emerson, Kenny Hampton, Arthur Wallace, and Preston Ray on, October , 21,, 1982, Re- spondent has interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed iii Section 7 of the Act,and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. . 4. The aforesaid unfair labor practices ai'e•unfair labor practices affecting 'commercetwithin the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the-Respondent has engaged,in;cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action. designed to effectuate the poli- cies of the Act., Having found Respondent discharged several employ- ees in violation of the Act, I find it necessary to order Respondent to offer them2 full reinstatement to ,their ? I find no basis to deny reinstatement to employees Kevin Morgan and Preston Ray, who were involved in unrelated incidents with a Re- spondent official, and a lime company representative respectively, follow- ing the discharges on October' 21. In' the first incident when' employee Morgan' was informed about the discharge, he angrily questioned Re- spondent Manager Steger about safety shoes and- an expected wage, in- crease, threatening Steger with an assault unless given a reply Steger re- sponded calmly and the mcident ,was closed and Morgan departed In-the second , a private encounter between employee Preston Ray and the lime company official James Thompson,' Ray was loading his -truck with his tools about to leave the premises in the wake of being discharged when Thompson approached Ray and ordered him to leave or he would call the police There was a single shove by Ray, who threatened to put Thompson in the hospital The momentary affair was described by an- other lime company official, Vice President Larry Franz, as "Some verbal exchange between Jim and Preston; Preston made some threaten- ing gestures and additional heated conversation occurred-they both kind 927 former positions or, if such positions, no longer exist, to substantially equivalent positions, without prejudice to their seniority or other, rights and privileges, and make them whole for any loss of earnings that they may have suffered. , Backpay shall be computed in accordance with the formula approved in F W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).3 On these. findings of fact. and conclusions of-law and on the entire record, I issue the following recommend- ed' . ORDER The Respondent, McEver Engineering, Inc., Cleburne, Texas, its officers, agents, successors, and assigns, shall - 1. Cease and desist from - '(a) Discharging employees because' they have engaged in protected concerted activities. '(b) In any like' or' related manner interfering with, re- straining, or' `coercing I employees' 'in the exercise' of the rights guaranteed them under' Section 7 of the Act. 2. Take the following _affirmative action necessary 'to effectuate the policies of the Act. ' (a)' Offer'to Thomas Murray, Ector Yzaguiri'e; Kevin Morgan, Ron Emerson, Kenny Hampton, Arthur Wal- lace, and Preston Ray immediate and . full reinstatement of backed off at,that point-Nothing [else] really of, significance ,[oc- curred] „ The Board recently ' addressed the subject 'of,strike misconduct which warrants denial of reinstatement Clear Pine Mouldings, 268 NLRB 1044 (1984) That decision makes it clear that the test for determining whether strike misconduct warrantsidenial of reinstatement has been revised and expanded so that henceforth not only violent acts but'thieats to engage in such acts are within the prohibited sphere of conduct warranting denial of reinstatement to sinkers, the standard being,-"whether the misconduct is such that, under the circumstances existing, it may 'reasonably tend ,to coerce or intimidate employees in the exercise of rights protected. under the Act " Supra at 1046 The rule's purpose to discourage the presence of violence on 'the industrial relations scene is served by including in its'pro- tective prohibitions strike misconduct aimed at individuals other than em- ployees alone;'- such as supervisors or, others -who do not enjoy the protec- tion of Sec 7 of the, Act Bearing the above in mind , I find 'that the" record contains no basis to conclude that the rights of Ray and Morgan to reinstatement arising from their unlawful discharge,should`be denied' In the fiist'place, there is no contention by Respondent that such rights ought to be denied , and it is clear that these two separated, brief, and individual encounters between the two employees and the 'officials involved essentially private matters arising on the spur of the moment ignited by the earlier unsafe working conditions and discriminatory discharges 'As'such, the incidents were not part and parcel of a "strike" or part of a calculated action to achieve "strike" objectives Steger manifested; no-sense of fear •or,apprehension in the argument with Morgan, in fact, he calmly explained to the latter why no raise had been forthcoming, and the incident was quickly 'over There is no evidence that any'employee was •af the sceh'e 6f Ray's'nimor brush with the Texas Lime Company official; whose associate and superior offi- cer downplayed the occurrence to-what it was worth •I.can-thus find no basis to conclude that the conduct , of Ray and Morgan "reasonably tend[ed] " to coerce or intimidate employees in the exercise of rights pro- tected under the Act,- 'so that tli se`ein'ployee`s''rights`to'reinstatement ansing 'frotn the Respondent's'clearly'unlawful'action .shouid,be denied. See generally Isis Plumb:ng ,Co:,,,138 NLRB 716,,717-721 (1962) 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses , _ , 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to their former positions or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings, in the manner set forth in the remedy section of the decision. (b) Remove from its personnel or other files any refer- ence to the discharges of Thomas Murray, Ector Yza- guirre, Kevin Morgan, Ron Emerson, Kenny Hampton, Arthur Wallace, and Preston Ray on October 21, 1982, and notify said employees in writing that this has been done and that evidence of these unlawful discharges will not be used against them in any way.5 (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under-the terms of this Order. (d) ' Post at its place of business 'in Cleburne, Texas, copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by'the Regional Director for Region 16, after being signed by Respond- ent's authorized representative, shall be posted by it in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the said notices = are not altered, defaced, or covered by any other materi al. (e), In the event that the Texas Lime Company project is completed, mail .a copy of the notice provided herein to each of the seven employees who were discharged.' (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. S Wayne Smith Co, 262 NLRB 999 (1982) 6 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." 7 Sargent Electric Co, 237 NLRb 1545 (1978). 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. The National Labor Relations Board gives all employees these rights. To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge our employees because they engage in concerted activities which are protected under the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce' our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Thomas Murray, Ector Yzaguirre, Kevin Morgan, Ron Emerson, Kenny Hampton, Arthur Wallace, and Preston Ray immediate and, full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their, seniority or other rights and privileges pre- viously enjoyed. WE WILL make them whole for any loss of earnings they may have suffered as a result of our unlawfully dis- charging then; with interest. - 'WE WILL remove from-our files any reference to their discharges on October 21, 1982, and WE WILL notify them in writing that this has been done and that evi- dence of these unlawful discharges will, not be used as a basis for future personnel actions against them. - MCEVER ENGINEERING, INC. ,