Dave Castellino & Sons

DAVE CASTELLINO & SONS Dave Castellano & Sons and Wyart P. Spriggins. Case 20-CA-17005 14 November 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 20 February 1985 Administrative Law Judge Maurice M. Miller issued the attached decision. The General Counsel filed exceptions and a sup- porting brief and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- mlember panel. 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 only to the extent consistent with this Decision and Order. The judge concluded that employee Spriggins' refusal to work in response to a picket line at the Respondent's jobsite was not protected by the Act, and that his termination for engaging in such activ- ity thus did not violate Section 8(a)(1) of the Act. We disagree. The Respondent, a construction contractor, was the primary carpentry subcontractor for Bay Vista Homes Ltd. (the Bay Vista project), a multiunit residential building project located in the Hunters Point area of San Francisco, California. The Bay Vista project was admittedly subject to a 1968 Housing and Urban Development Act re- quirement that, to the greatest extent possible, op- portunities for training and employment be given to lower income area residents. Under the contract between the project's general contractor and the San Francisco Redevelopment Agency, the Re- spondent was obliged to attempt to hire at least 50 percent of its employees from local residents. On 8 March 19821 the Respondent hired em- ployee Spriggins, a journeyman carpenter and area resident, to work on the Buena Vista project. When Spriggins arrived at the jobsite on 17 March he observed some 7 to 14 persons picketing across the street from the Respondent's jobsite. Spriggins testified without contradiction that he knew "prac- tically all" the pickets, and that he "thought" all were Hunters Point residents. Most of the pickets were carpenters, as well as area residents, and the group included three area resident carpenters who had unsuccessfully sought work with the Respond- ' All dates are in 1982 453 ent.2 The pickets' conceded purpose was to protest the Respondent's purported failure to hire more area residents. While Spriggins was preparing for work, he tes- tified that he heard "rumors" and "mumbling" from the pickets and that some of the demonstra- tors threatened him. Spriggins later reported the al- leged threats to Respondent owner Dave Castel- lino. Spriggins stated that he had to live in the community and had a family, and that he was wor- ried about what might happen to him when he got off work. Castellino replied that he had heard nothing of the threats and that Spriggins would be "terminating" himself if he left his job. Spriggins testified that he then left the jobsite because he feared for "his health." Castellino refused Spriggins' 24 March request for a layoff slip, stating that he had been dis- charged. On 9 April Castellino sent Spriggins a letter stating, inter alia, "This is to confirm that you terminated your employment with Castellino and Sons on March 17, 1982." The judge found, and we agree for the reasons set forth fully in his decision, that the pickets' pro- test on 17 March was protected concerted activity. Briefly, the judge found that the demonstrators were employees within the meaning of the Act; that they were clearly acting in concert with each other; and that their object of protesting against the Respondent's purportedly discriminatory hiring practices was protected.3 The judge further found, however, that Sprig- gins' walkout was not protected because he had failed to make "common cause" with the demon- strators. In this regard, the judge stated that "Spriggins' only manifestation of common cause with the demonstrators was his profession that he feared for his health," and that "whatever fears he may have felt, for his personal safety, would have had to be objectively justified, rather than subjectively professed, merely." The judge further found that the General Counsel did not establish that "specific `threats' directed to Complainant were, in fact, made," and concluded that "Spriggins' departure from Respondent's construction site cannot-rea- sonably-be considered a manifestation of common cause with the demonstrators." We reverse the judge on this issue for the reasons that follow. 2 Contrary to the ,fudge's statement in sec. II, C, par. 6 of his decision that the record "may not prove" that at least three of the demonstrators were previous job applicants the Respondent did not hire, the record dis- closes that pickets Ryan, Otis, and Brumfeld had each unsuccessfully sought work with the Respondent , See Tanner Motor Livery, 148 NLRB 1402, 1404 (1964), remanded on other grounds 349 F 2d 1 (9th Cir 1965), supplemental decision 166 NLRB 551 (1967), remanded on other grounds 419 F.2d 216 (9th Cis 1969) 277 NLRB No. 50 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well established that nonstriking employees who refuse to cross a picket line their fellow em- ployees maintain, make common cause with the strikers, and may not be lawfully discharged for their activities. Ashtabula Forge, 269 NLRB 774, 774-775 (1984).4 In Ashtabula Forge, the Board spe- cifically held that the Act protects an employee's refusal to cross a picket line even where the em- ployee's sole reason is a fear of personal bodily injury.5 The Board reasoned that "the focal point of the Board's inquiry is the nature of the activity itself; the employee's motives for engaging in the activity are irrelevant."s Applying the above-stated principles, we find that Spriggins' 17 March walkout, occurring in re- sponse to a protected employee picket line at the Respondent's jobsite, was itself protected concerted activity even though motivated solely by personal fear. Accordingly, we find that Spriggins' termination for engaging in the 17 March walkout violated Section 8(a)(1) of the Act.7 CONCLUSION OF LAW By discharging employee Wyart Spriggins on 17 March 1982, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(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 designed to effectuate the policies of the Act. We shall, inter alia, order the Respondent to offer Wyart Spriggins immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings he may have suf- 4 Accord- NLRB v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (5th Cir 1970); NLRB P. Difco Laboratories, 427 F 2d 170, 171-172 (6th Cir 1970), cert. dented 400 U.S 833 (1970) s Id. at 775. Accord: Overntte Transportation Co, 212 NLRB 515 (1974). 6 269 NLRB at 775 Accord: Cooper Thermometer Co., 154 NLRB 502, 504 (1965), Congoleum Industries, 197 NLRB 534, 547 (1972) 7 We reject the Respondent's contention before the judge that it did not rehire Spriggins after 17 March because his work was defective. Cas- tellino's testimony that he permanently laid Spriggins off on 10 March for poor work performance is directly contradicted by his rehiring of Sprig- gins on 17 March Additionally, there is no evidence that the Respondent informed Spnggins he had been permanently laid off for defective work on 10 March or on the several occasions after 10 March when Spriggins visited the jobsite seeking work Significantly, Castellino's 17 March statements, as well as the 9 April termination letter, make reference only to Spriggins' 17 March conduct as the reason for his termination fered as a result of the discrimination practiced against him. Backpay shall be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). We shall order the Respondent to remove from its files any reference to the unlawful discharge and to notify Spriggins in writing that this has been done and that the discharge will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, Dave Castellino & Sons, San Bruno, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Wyart Spriggins immediate and full re- instatement to his former 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 make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, 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 San Bruno, California facility copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed- 8 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 Nation- al 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 " DAVE CASTELLINO & SONS by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive clays, 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 Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against any of you for engaging in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Wyart Spriggins immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, 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 resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. DAVE CASTELLINO & SONS Jonathan J. Seagle, for the General Counsel. J. Victor Waye (Orrick, Herrington & Sutcliffe), of San Francisco, California, for the Respondent. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge. On a charge filed March 30, 1982, and duly served, the Gen- eial Counsel of the National Labor Relations Board caused a complaint and notice of hearing dated January 27, 1983, to be issued and served on Dave Castellino & Sons (Respondent). Therein, Respondent was charged with the commission of an unfair labor practice within 455 the meaning of Section 8(a)(1) of the National Labor Re- lations Act. Respondent's answer, duly filed, conceded certain factual allegations within the General Counsel's complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held on May 18, 1983 , in San Francisco, Cali- fornia, before me. The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence with respect to pertinent matters. The General Counsel's representative and Respondent's counsel have submitted briefs; these briefs have been considered. On the entire testimonial record, documentary evi- dence received , and my observation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a general carpentry contractor engaged in construction, with a business office located in San Bruno, California. The parties have stipulated that during 1982, the calendar year within which Respondent's al- leged unfair labor practice occurred, Respondent provid- ed services, within California, valued in excess of $50,000 to Nick Tavaglione Construction Company, a general contracting firm in the construction industry. Nick Ta- vaglione Construction Company derived revenues in excess of $250,000 from California operations, and reve- nues in excess of $50,000 from Nevada operations during the 1982 calendar year. I find that, throughout the period with which this case is concerned, Respondent was an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities affecting commerce, within the meaning of Section 2(6) and (7) of the statute. With due regard for this Board's currently maintained jurisdictional standards, I find, further, that assertion of the Board's jurisdiction in this matter would effectuate statutory objectives. II. THE UNFAIR LABOR PRACTICE CHARGED A. Issues The General Counsel contends that Respondent's owner terminated the employment of Complainant Wyart (Pete) Spriggins because of his participation in concerted activity for mutual aid or protection. Respond- ent contends, contrariwise, that Spriggins terminated himself, and was denied consideration for further em- ployment for valid business reasons. The questions to be resolved are: 1. Was Spriggins' personal relinquishment of work for Respondent, purportedly in response to public demon- strations protesting his employer's supposed failure to comply with a prior contractual commitment to hire a project work force comprised of 50 percent of local neighborhood residents, concerted activity for mutual aid or protection? 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. If so, was his conduct protected within the meaning of the statute? 3. Was Respondent's refusal to consider Spriggins for further employment the result of his purportedly protect- ed concerted activity, or was it the result of poor job performance? B. Facts 1. Background a. Respondent's business Respondent is regularly engaged in the general con- struction business. In March 1982, Respondent was pro- viding services as a primary carpentry subcontractor on a multiple unit residential building project known as Bay Vista Homes, Ltd. within San Francisco, California's Hunters Point area. The general contractor on the project was Nick Tavaglione Construction Company. Castellino's responsibilities encompassed foundation work, rough carpentry framing for the buildings, and in- terior finish work. At any one time, within its service area, Respondent may have between 2 and 8 construction projects on which it may be working, and may be employing be- tween 2 and 10 workers. These employees do not, how- ever, constitute a permanent work force; Respondent hires them, as needed, from the local Carpenters Union hiring hall. In March 1982, Respondent had been privy to a collective-bargaining agreement with the Union, pursuant to which presumptively qualified workers were dispatched, for about 2 years. According to Dave Castellino, Respondent's owner, Bay Vista Homes was a residential construction project subject to the requirements of section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u). That statute requires-among other things-that, to the greatest extent feasible, when covered housing construc- tion projects are being carried out, opportunities for training and employment should be given to lower income workers residing within the project area. Re- spondent, concededly a subcontractor on the project, was contractually obliged to comply with this require- ment. Castellino, so the record shows, was bound by an agreement, bottomed upon the statute's generally phrased mandate, between the San Francisco Redevelop- ment Agency and the project's general contractor, which specifically defined hiring goals pursuant to which 50 percent of each subcontractor's local work force, at least, would consist of low-income area residents. It should be noted, however, that Respondent's agreement to attempt to hire a work force composed at least 50 per- cent of low-income area residents was not a term of the Carpenters Union collective-bargaining agreement by which Castellino & Sons was likewise currently bound. More particularly, Respondent was contractually obli- gated, thereby, to procure half his current work force from local resident applicants-specifically those residing within San Francisco's 94124 (Hunters Point) postal zip code area. Castellino testified, credibly, that he routinely relied on union hiring hall dispatch slips (which were supposed to designate each dispatched worker's name and address, including his or her zip code), in connection with his efforts to hire 50 percent of his project employ- ees from qualified area residents. The record reveals that on March 17, 1982, the pivotal day in issue here, Respondent had seven nonsupervisory employees (including Spriggins) working on the Bay Vista ' project. Of these, there is evidence that three workers (including Spriggins) were local area residents, while three were not. The location of the seventh em- ployee's residence cannot be reliably determined from the record. b. Respondent's procedure for terminating employees Castellino testified, credibly and without dispute, that he, personally, makes ultimate decisions with regard to employee terminations. Under his collective-bargaining agreement with the Carpenters Union, Respondent can terminate an employee, during his or her first 3 days of employment, with or without cause. After the third day, however, Respondent may terminate employees for just cause only; Castellino's determinations with respect to "just cause" may be subject to contractual grievance and arbitration procedures. As a result, so Castellino's testimony shows, he rou- tinely attempts, within a given worker's first 3 days of employment, to determine whether his or her work is sufficiently satisfactory to warrant retention. To deter- mine this, Castellino relies on personal observations, plus observations and reports provided by his foreman on the construction site. Throughout the period with which this case is con- cerned, William Athens was Respondent's foreman on the Bay Vista Homes site. Athens testified, credibly and without contradiction, that he regularly observes and checks each employee's work several times each day. He makes notations daily, within a log, regarding their work quality, their hours worked, and, where appropriate, their employment status-specifically, whether they are being laid off or retained. Athens talks with Castellino each day, in person or by telephone, regarding the work currently being done on the site and, when necessary, the performance of particular employees. Castellino testified, without challenge or contradiction, that, when he decides to lay off or terminate employees, he normally tells them, merely, that Respondent has no further use for their services, and that, should Castellino need them again, he will call. He does this, so he claims, to avoid confrontations with employees, and to avoid the need to provide explanations regarding his reason or rea- sons for terminating any employee concerned. c. Respondent's employment of Spriggins Complainant Wyart Spriggins was hired by Respond- ent on Monday, March 8, 1982, for service as a journey- man carpenter. According to Castellino, Complainant had visited the Bay Vista construction site five or six times prior to March 8, seeking work. By Friday, March 5, Respondent had decided to hire additional employees. Spriggins, together with a number of other workers, sought work on that day. Since Complainant was an area DAVE CASTELLINO & SONS 457 resident, and likewise a journeyman carpenter, Castellino told him to obtain a dispatch slip from the Carpenters Union hiring hall, and report for work on Monday, March 8, thereafter. Spriggins worked 8 hours on Monday, March 8. He was assigned to do tie-downs that day. While a witness, Castellino characterized this job as a simple task, some- thing an apprentice would normally be assigned to do. (The assignment required Spriggins to drill holes in wooden frames, and to bolt down metal plates.) Castel- lino testified that a normal day's performance, with re- spect to completing tie-downs, would require the place- ment of one per hour; Spriggins placed two, merely, during his March 8 working day. William Athens, Re- spondent's foreman, testified that he spoke to Spriggins several times during his first day, telling him how to do the job; he requested Complainant to try to work faster. Spriggins agreed to do so. As previously noted, Athens kept a daily log describ- ing the progress made on Respondent's construction project. Therein, he noted, for March 8, that, "Pete [Spriggins' nickname] put tie-downs in building. First day okay but slow. Needs to pick up the pace." The foreman, further, spoke with Castellino on the evening of March 8; during their conference, he reported Spriggins' slow performance. Castellino, however, decided to have Spriggins work the next day, March 9, so that he could be given a chance to prove himself. 'While a witness, Spriggins testified that, while at work on Monday, March 8, he had gotten a a chip of wood in his eye. He told Castellino about it. However, Spriggins reported for work the next day, during which he like- wise told Foreman Athens about his eye problem. Athens advised him to see a doctor; Spriggins, neverthe- less, continued to work for the remainder of the day; he went to San Francisco General Hospital's emergency ward Tuesday evening. There, Spriggins was examined; something was, indeed, found wrong with his eye, but the emergency ward did not have the proper equipment to deal with the problem. Spriggins was given an ap- pomtnment to see an eye doctor the next day (Wednes- day, March 10). As previously noted, Spriggins had worked 8 hours on Tuesday, March 9. He had been assigned to install ply- wood sheer wall. Castellino and Athens both testified, however, that Spriggins' work that day had been both improperly and slowly done. Nails had been incorrectly spaced, and some plywood walls had been placed at an angle; subsequently, as Castellino recalled, Respondent had to remove and replace them. As a result, when Cas- tellino and Athens discussed the project's progress on Tuesday evening, Castellino decided to "lay off' Sprig- gins on Wednesday, March 10. When Spriggins reported for work on Wednesday, he worked 1 hour. He told Respondent's foreman-so he testified-that he had a 9:30 doctor's appointment; Athens reportedly told him that he might was well take the rest of the day off, since Respondent was currently short of equipment. The foreman testified, however, that he merely told Complainant to visit his doctor and then return to work. Spriggins did not return for Wednesday's work. While a witness, he declared that he had gone to the'-doctor, who had given him a prescription together with a note for his employer. According to Spriggins, he had returned home and, on his way, had passed the con- struction site; he claimed that he had not seen anyone there. Foreman Athens, however, testified that Respond- ent's construction crew worked that day until 4 or 4:30 p.m. Spriggins' demeanor while testifying, within my view, reflected a genuine conviction that his proffered recol- lections were factually sound. The record, considered in totality, persuades me, however, that he was sometimes confused; that his memory, with respect to certain mat- ters, was poor, or possibly colored, subconsciously, by afterthought; and that his professed inability to under- stand some questions reflected a desire to avoid provid- ing potentially damaging responses. In cases of testimoni- al conflict, therefore, Spriggins' testimony-proffered without objective support or corroboration-carries no persuasion. On Thursday, March 11, no work was performed at Respondent's jobsite due to heavy rain. Castellino did, however, visit the project to pay Respondent's construc- tion employees, since it was their regular payday. Sprig- gins received a check for 18 hours work-16 hours on Monday and Tuesday, plus 2 hours' showup pay for Wednesday. Respondent's owner, I find, told Complain- ant there would be no work on Friday, March 12, and that-should he be needed thereafter-he would be called. Spriggins, then, asked for Castellino's business card, and gave Respondent's owner two phone numbers through which he could be reached. Castellino did not, however, tell Spriggins-in so many words-that Re- spondent was "terminating" his employment. Complainant, despite Castellino's declaration that he would be called if needed, reported in search of work at Respondent's construction site on Monday, March 15, along with Leon Thompson, a fellow worker. They spoke with Respondent's foreman. Athens told them there was no work, and-so Spriggins testified-declared that he [Spriggins] should wait for Castellino to arrive at the site. Athens testified, however, that he told both men there would be no work until Castellino called them. Athens is credited in this regard. Neither man worked on Monday or Tuesday for Respondent. Previously, specifically on Friday, March 12, Respond- ent had, however, hired Ron Black, a journeyman car- penter. On Tuesday, March 16, Respondent hired an- other journeyman carpener, Juventino Herrero. Subsequently, following further developments to be noted herein, Spriggins filed a grievance regarding Re- spondent's decision to hire these two employees before he was asked to return to work. This grievance, ulti- mately, resulted in arbital findings pursuant to which Spriggins' contentions were rejected. 2. The events of March 17 On Wednesday, March 17, Castellino and Foreman Athens spoke on the phone, so their credible testimony shows, before the workday at Respondent's jobsite began. Their conversation dealt with the Bay Vista Homes project, and the fact that construction work there 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was behind schedule, due to rain. Respondent had a so- called draw schedule arrangement with the general con- tractor for each floor on which construction was com- pleted, Respondent would receive a certain amount of money. Castellino was concerned about qualifying to re- ceive such a draw payment by that week's end (Friday, March 19). He decided to hire extra employees "for a day or so," hoping that Respondent might be enabled to qualify for a contractually specified progress payment. With this in mind, I find, Castellino told Athens that, should Spriggins reappear at the Bay Vista Homes site on Wednesday, he should be put to work. While a witness herein, Castellino claimed, however, that it was his intent to hire Spriggins for that day only. Athens testified, credibly within my view, that Castellino did tell him Spriggins would be hired for Wednesday's work only. The Complainant, together with Leon Thompson, did report to Respondent's jobsite on Wednesday morning. According to Spriggins, Thompson and he queried Fore- man Athens whether there was any work. Respondent's foreman, however, allegedly told Complainant merely to wait for Castellino. Spriggins then went to a phone and called his Union's business representative, James O'Sulli- van; the latter suggested that he wait for the contractor and see what would happen. When Castellino reached the project, shortly before Respondent's regular starting time, he told Complainant that he had left instructions with Athens to put Spriggins to work. Complainant thereupon got his tools, reported to Respondent's foreman, and began working. By this time, Castellano had, however, left the jobsite, in his truck. While a witness, herein, Spriggins testified that, when he first arrived at Respondent's jobsite, and before he began working some 7 to 12 or 12 to 14 people had ap- peared, close to the project, carrying picket signs. They had taken up positions and had begun a demonstration, with picketing, which they maintained across the street from Respondent's jobsite. Spriggins, so he claimed, knew "practically all" of these people; he testified that some were his friends, and that he "thought" all were nearby Hunters Point residents. One of the demonstra- tors, witness Charles Ryan, had previously sought work with Respondent, but had not been hired. Ryan testified, without challenge or contradiction, that most of the demonstrators were carpenters by occupation, as well as area residents. Two of them had, like Ryan himself, pre- viously sought work with Respondent, without success. Ryan was chairman of a locally organized Joint Hous- ing Committee, formed to promote the hiring of area residents by the construction project's contractors. His committee had been designated, within the Redevelop- ment Agency agreement previously noted , as an organi- zation responsible for helping that Agency monitor com- pliance with the designated agreement 's terms, by project contractors. The purpose of their picketing, concededly, was to protest Castellino's purported failure, in particular, to hire more area residents . According to Ryan, the group's picket signs carried messages such as "No residents," "Where's the 50-50 employment," and "Unfair Castel- lino." No concerned labor organization was, however, designated. Castellino revisited the Bay Vista jobsite within a short time thereafter. Spriggins had begun to lay out some electrical cord in preparation for his scheduled day's work. He testified, however, that-while doing so-he heard "rumors, mumbling" and heard some of the demonstrators make "threats" directed to him, specifical- ly, "You got to live in this community. Everybody may not be your friend outside these gates, you know. We're picketing because we want jobs, too." (Emphasis supplied.) Ryan declared, while a witness, that he, personally, had not threatened Spriggins; however, he reported hearing one demonstrator, unnamed, say to Spriggins, "You'd better not take your ass over there." So far as the record shows, no consequences, should Spriggins fail to heed this suggestion, were mentioned. At this point the sequence of events is unclear. Ac- cording to Spriggins, he told Athens that he had been threatened, and that he was leaving. Complainant testi- fied that Athens then told him, "Do what you think is right. Leave." Having been so advised, Spriggins again called the Carpenters Union hall. Whether, however, his call was placed directly follow- ing the foreman's comment, or following a second morn- ing conversation with Castellino, to be noted, cannot be determined precisely with matters in this present posture. Complainant spoke again with O'Sullivan, asking whether he should cross the picket line. O'Sullivan re- portedly told him that if he was "threatened" he should not work. Spriggins approached Castellino, and reported his pur- ported receipt of threats. Complainant declared that he had to live in the community, that he had a family; and that he was worried about what might happen to him when he got off work. Castellino testified, without chal- lenge or contradiction, however, that he told Spriggins he had heard nothing regarding any threats. He pointed out that seven other employees were working, and that if Spriggins left the job he would be "terminating" himself, and could not expect further employment; Castellino's testimony, within my view, warrants credence. Accord- ing to Spriggins, however, Castellino thereupon told him, "Do what you have to do" regardless. On this record, no finding consistent with Spriggins' testimony, in this regard, would be warranted within my view. Complainant thereupon left the jobsite. He has not since worked for Respondent. Spriggins testified, finally, that he left the site because he feared for his health. Con- cededly, however, he had not spoken with any other em- ployees working for Respondent regarding the demon- strators, their purpose, or their purported threats. No other employee of Respondent left the Bay Vista Homes site that day because of the demonstration. Spriggins testified, credibly, that he revisited Respond- ent's Bay Vista Homes construction site at least four times after March 17. On March 18 Spriggins reported to Respondent's construction site and spoke with Castellino, asking to be excused so that he could visit the dentist. Castellino, according to Spriggins, merely nodded his head, thereby, so Spriggins claims, excusing him for his DAVE CASTELLINO & SONS appointment. Castellino, however, testified, regarding this incident, that he did not pay much attention to Spriggins; that, as far as he was concerned, Spriggins was no longer working for Respondent. On Monday, March 22, Spriggins again visited the construction site, presumably ready for work, but no work was done at the site because of fire damage. Again on March 23 Spriggins went to the site, again apparently ready to work for Respondent, but was not employed by Re- spondent on that day or any after. The record suggests, but provides no clear warrant for a factual determina- tion, that Respondent's jobsite may have been picketed by demonstrators for the neighborhood's Joint Housing Committee on several working days following the March 17 demonstration herein noted. On Wednesday, March 24, Spriggins visited the project, spoke with Castellino, and requested a layoff slip. Respondent's owner declared, however, that he did not have to give Complainant such a slip, since he had been discharged; he suggested that Spriggins should consult with his Carpenters Union busi- ness representative. Thereafter, on April 9, Castellino sent Spriggins a letter, however, which said, "This is to confirm that you terminated your employment with Cas- tellano & Sons on March 17, 1982." The parties have had no further contacts related, specifically, to Spriggins' March 17 cessation of work, or Castellino's several suc- cessive failures to rehire him thereafter. Some time late in June, Castellino's work on the Bay Vista Homes project was substantially completed. During July, Respondent's crew performed some minor "pick-up" tasks. Nothing within the record suggests, however, that Spriggins could or would have been called upon for such work. C. Discussion and Conclusions On this record, the General Counsel's representative seeks determinations that Complainant Wyart Spriggins was participating in some genuinely concerted activity; that his course of conduct, throughout, merits character- ization as concerted activity qualified for statutory pro- tection; and that because of his participation in such statutorily protected concerted activity, specifically on March 17, Respondent subsequently refused to consider him for further employment. Within his brief, Respondent's counsel contends, first, that Complainant's course of conduct, revealed within the present record, should not be considered "concerted" activity; specifically, Respondent argues that Complain- ant's failure to make common cause, either with fellow jobsite workers or with the demonstrators, renders the purported "concertedness" of his actions illusory. Second, Respondent contends that Complainant's poor job performance was the real, operative reason for Re- spondent's refusal to consider him for further jobsite work. Our initial inquiry then must be focused on the nature of the activity engaged in by Complainant, par- ticularly on March 17, and Respondent's reaction there- to. When this case was heard, Castellano was adamant in his declaration that he had, prior to March 17, made a final decision not to reemploy Spriggins. However, as the testimony reveals, circumstances forced him to re- 459 consider; Complainant was again hired on March 17, "for one day only." Thereafter, having walked off the job on the date noted, Spriggins was unsuccessful in se- curing a layoff slip from Respondent. He was told, in- stead, to see his union business representative. When Re- spondent did, ultimately, communicate with Spriggins re- garding the events of March 17, it was through Castel- lino's letter dated April 9 wherein Respondent informed Spriggins, merely, that he had "terminated [him]self" on March 17. Spriggins was never informed precisely the reason for his termination or, more particularly, for Re- spondent's refusal to consider him for further employ- ment. In view of the ambiguity which characterized Sprig- gins' purported motivation for his conduct on March 17, and Respondent's reaction with respect thereto, close scrutiny of Complainant's course of action on that day would seem warranted. Specifically, can Spriggins' ac- tions be considered statutorily protected, concerted ac- tivity? Since Complainant did not participate in concerted ac- tivity with any of his fellow jobsite workers, his purport- edly "protected concerted activity" must necessarily be related to, or revolve around, the activity of the demon- strators who were, then, picketing Respondent's con- struction site. The General Counsel contends that the demonstrators' activity involved protected concerted action. In support, the General Counsel notes that at least three, and possi- bly all of the demonstrators, were carpenters presumably qualified to work on Respondent's project. This Board has long held that the word "employee", as defined in Section 2(3), includes members of the working class gen- erally. See Giant Food Markets, 241 NLRB 727, 728 fn. 5 (1979); Little Rock Crate Co., 227 NLRB 1406 (1977). Moreover, the record suggests, though it may not prove, that at least three of the demonstrators had, previously, applied to Respondent for employment. Applicants for employment are considered to fall within Section 2(3)'s definition under Board law. Mason-Rust, 179 NLRB 434, 439 (1969); Tanner Motor Livery, 148 NLRB 1402, 1411 (1964) The demonstrators were, therefore, employees within the meaning of the Act; further, they were, clear- ly, acting in concert with one another. Their demonstration was in protest of Respondent's al- leged failure to comply with its statutory duty and con- tractual commitment to provide a work force composed of 50 percent of area residents.' The objective of the demonstrators make this a different case than other pro- tests which the Board has considered protected activity. For instance, this is not a situation where "employees" are attempting to enforce the provisions of some current collective-bargaining agreement,2 as the Board found was the case in Interboro Contractors, 157 NLRB 1295 (1966).3 The demonstration also was not in protest of I Respondent's compliance or noncompliance with this requirement, however, is not at issue in this proceeding 2 As noted previously, Respondent's obligation to hire area residents for half its work force, or more, was contractual with the primary con- tractor, but not with the Carpenters Union 3 Recently approved by the United States Supreme Court in NLRB v City Disposal Systems, 465 U S 822 1505 (1984) 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD racial discrimination, purportedly chargeable to Re- spondent herein, comparable to the protest found to con- stitute protected concerted activity in Washington State Service Employees, 188 NLRB 957 (1971). In essence, the demonstrators were protesting or seek- ing to influence the hiring policies and practices of Re- spondent. The Board (Tanner Motor Livery, 148 NLRB 1402, 1404 (1964)4) has held, in a different context, that: [A]n employer's hiring policies and practices are of vital concern to employees inasmuch as such poli- cies and practices inherently affect terms and condi- tions of employment. Thus, in our opinion, the con- certed activities of employees in protest of what they consider unfair hiring policies and practices are clearly within their Section 7 right "to engage in other concerted activities . .. mutual aid or protec- tion...." Although Tanner Motor Livery involved a protest of the purported racial discriminatory policies and practices of the respondent employer, the Board did not limit its holding to such protests. Citing NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the Board noted that Section 7 rights are not to be interpreted in such a way that the "policy of the Act to protect the right of work- ers to act together to better their working conditions"' would be frustrated. Tanner Motor Livery, supra at 1404. In accordance with this policy, I find that the demon- stration under consideration here constituted concerted action for mutual aid or protection. Furthermore, and contrary to Respondent's position on this issue, I find that the demonstration here was cal- culated to protest purportedly discriminatory policies or practices, which, to quote Respondent's brief, were alleg- edly "in violation of a statutory scheme evincing a clear public policy against the type of discrimination." The evidence clearly shows that Respondent was statutorily required to attempt to hire a work force at least half composed of area residents, pursuant to the Housing and Urban Development Act of 1968, 12 U.S.C. § 1701u. It follows therefore, that "where, as here, the object sought is lawful and the means employed peaceful, the concert- ed activities are protected by the Act." Tanner Motor Livery, supra at 1404. Respondent makes an additional argument regarding the protected aspect of the demonstration. Its counsel suggests that the demonstrators did not undertake their protest in good faith and, in fact, demonstrated merely to harsss the Respondent. Respondent relies on the record to show: First, that the demonstrators did not make a good faith effort to determine whether Castellino & Sons was really failing to comply with the 50 percent require- ment; and second, to show that Respondent did, in fact, have a work force half comprised of area residents. As noted previously, the record does not show, clearly, that Respondent was in compliance with the requirement. Moreover, even if it could be assumed that Respondent 4 Remanded twice on other grounds in NLRB v. Tanner Motor Livery, 349 F.2d 1 (9th Car. 1965), and 419 F 2d 216 (9th Cir. 1969). was in compliance, the demonstrators still would not lose the protection of the Act simply because their grievance presumably had no basis in fact. The determination of whether employee concerted activity is, or is not, pro- tected does not turn upon the ultimate merit or validity of the concerted activity's objective. NLRB v. Washing- ton Aluminum Co., supra; Flynn Paving Co., 236 NLRB 721 (1978). In light of the protected concerted nature of the dem- onstrator's March 17 activity, then, can it properly be concluded, further, that Complainant Spriggins was like- wise engaged in protected concerted activity with the demonstrators? My conclusion is that he was not, and that the Complaint herein must be dismissed. Although the record reveals that Spriggins relin- quished a work assignment and left Respondent's jobsite, purportedly in response to the demonstration, the Gener- al Counsel has failed to show, under the circumstances, that Spriggins was, thereby, making common cause with the demonstrators. A showing of common cause between the Complainant and other "employees" is an essential prerequisite to a finding of concerted activity. See Ohio Valley Container Corp., 221 NLRB 1301 (1975); cf. Comet Fast Freight, 262 NLRB 430 (1982). In my view the following facts, as shown by the testi- mony of the witnesses, warrants a determination that no persuasive demonstration of common cause, between Complainant Spriggins and the demonstrators, has herein been provided: First, Spriggins was a member of the group which the demonstrators were seeking to have Respondent employ, that is, a resident of the local neighborhood, within the 94124 postal zip code area. By leaving the jobsite, Com- plainant was not promoting the objectives of the demon- stration. On the contrary, with Spriggins' departure, Re- spondent was unquestionably left, for the moment at least, without a 50-percent complement of area resident employees. Rather than establishing common cause with the demonstrators by leaving, Complainant's action was antithetical to the group's objective. Second, there is no evidence to suggest that, when Spriggins voluntarily left the construction site, he joined the demonstrators in protesting Respondent's hiring prac- tices, or that he manifested any purpose that his course of conduct should be so construed. The record is silent with respect to where Spriggins did go, on leaving the jobsite, save for his testimony that he "thought" he went to the union hall sometime during that day. In addition, there is no evidence that Spriggins made common cause with the demonstrators, or with his fellow employees at the construction site, by attempting to persuade other employees to join the demonstration, or to respect the picket line. Indeed, Spriggins admitted that he did not speak to any other employees, at the construction site, regarding the demonstrators or their objectives. Third, Spriggins testified that his sole reason for relin- quishing a work assignment, in the face of the demon- stration, was fear for his health, which may properly be interpreted to mean fear for his physical safety. The Board has recently held that an employee's refusal to cross a picket line, because the employee was fearful of DAVE CASTELLINO & SONS the physical consequences if she did so, nonetheless had the protection of the Act. ABS Co., 269 NLRB 774 (1984).5 An employee's refusal to cross a picket line be- cause of personal fear is most often analyzed with re- spect to whether that employee's act was protected or riot. This analysis rests on the fact that picketing employ- ees are usually addressing the picketed employer's em- ployees, trying to persuade those employees to make common cause with the picketing employees by with- holding their labor. In this case, however, the demonstrators were not ad- dressing Respondent's employees; instead, they were ad- dressing Respondent's owner, trying to persuade him to comply with the Redevelopment Agency's 50-percent area resident requirement. The situation here is unlike ABS Co. and other cited cases, where picketing employ- ees were seeking to have the employer's on-the-job workers withhold their labor. In such situations, the em- ployee who refuses to cross the picket line, thus with- holding his or her labor, is deemed to have made common cause with the picketers, and "it is not material that the employee . . . is motivated solely by personal fear." ABS Co., supra at 775. Because the demonstrators herein-so far as their picket signs were concerned-were not employees of Castellino & Sons, or seeking cooperation from such em- ployees, Spriggins cannot be presumed to have made common cause, voluntarily, with them when he withheld his labor from Respondent. Spriggins' only manifestation of common cause with the demonstrators was his profes- sion that he feared for his health. Under these circum- stances, whatever fears he may have felt, for his personal safety, would have had to be objectively justified, rather than subjectively professed, merely. In my view, the Gen- eral Counsel has not established, by a preponderance of the evidence, that specific "threats" directed to Com- plainant were, in fact, made. Only one witness, other than Spriggins, testified regarding the substance of any purported threats. Charles Ryan testified that a demon- strator said, "You'd better not take your ass over there." At best this is ambiguous; it could have been considered S See also Overrate Transportation Co, 212 NLRB 515 (1974), Congo- lesm Industries, 197 NLRB 534 (1972); Cooper Thermometer Co, 154 NLRB 502 (1965) 461 hortatory, merely, rather than threatening. There was no indication of what would happen to Spriggins if he did complete his work for Respondent "over there." Com- plainant's testimony regarding the purported threats which he heard seemingly directed to him was not cor- roborated by any witnesses; as noted previously, his testi- mony with respect thereto carries no persuasion as a result. Without some objective basis shown for Spriggins' claims regarding these purported threats, his professed concern for his health reflects nothing more than a purely subjective belief regarding what might happen to him if he continued on the job. The evidence indicates that no physical violence, directed against anyone, could be charged to the demonstrators, and that, specifically on March 17, no other employees of Respondent heard any .threats. In view of these findings, Spriggins' departure from Respondent's construction site cannot-reason- ably-be considered a manifestation of common cause with the demonstrators motivated by some rationally grounded concern for his personal safety. Fourth, Spriggins' testimony indicates that he revisited Respondent's construction site on several occasions after March 17, specifically, on March 18, 22-24, apparently seeking further employment with Respondent. Complain- ant sought such employment despite the fact that the professed objectives of the March 17 demonstrators had not, at least as reflected within the present record, been accomplished. Thus, even if Complainant arguably could be said to have manifested common cause with the dem- onstrators, bottomed on personal fears, when he walked off the job initially, that purported manifestation dis- solved, and was rendered nugatory, by his prompt return in search of renewed employment. Inasmuch as the General Counsel has failed to sustain his burden of proof that Spriggins made common cause with the March 17 demonstrators, Complainant cannot properly be found to have engaged in protected concert- ed activity on that date. It follows, therefore, that Re- spondent's failure or failure to consider him for further employment, thereafter, whether on March 18, and March 22-24, as charged in the General Counsel's com- plaint, cannot be considered derived from statutorily pro- scribed considerations. [Recommended Order for dismissal omitted from pub- lication.