Custodis-Cottrell, Inc.

CUSTODIS-COTTRELL, INC. Custodis-Cottrell, Inc. and Charles Windell Bryant. Case 10-CA-21199 8 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN'AND STEPHENS On 10 June 1986 Administrative -Law Judge Hutton S. Brandon 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- member 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, fmdings,I and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Il The General Counsel has excepted to some of the judge's credibility findings. The Board's established pohcy,is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry W411 Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for re- versing the findings. In adopting the judge's decision, we note that there is no basis to war- rant a remand in this proceeding to allow the introduction of the joint labor/management safety agreement between Georgia Power Company and the North Georgia Construction Trades Council. (The Respondent was not a party to that agreement.) Initially, the judge sustained the Re- spondent's objection to the introduction of that agreement based on rel- evancy, but he subsequently relied on the General Counsel's offer of proof to conclude that the agreement did not create an exception to the no-strike provisions in the three existing collective -bargaining agreements applicable to the Respondent's work at the Plant Soberer site. Thus, even though the judge did not accept the agreement into evidence , he consid- ered its materiality on the basis of this offer of proof. Moreover, based on the joint labor/management safety agreement's expressed intention not to affect existing collective-bargaining agreements, it is clear that the agree- ment does not create an exception to the no-strike provisions of the par- ties' existing collective-bargaining agreements, which set forth clear and unequivocal waivers of the right to strike at the Plant Scherer worksite. 2 In adopting the judge's conclusion that no exception to the no-strike clauses of the parties' collective-bargaining agreement has been estab- lished, Member Johansen disavows the judge's statement that exceptions to no-strike clauses are not to be lightly inferred. Indeed, the Supreme Court has held that waiver of the right to strike will not be lightly inferred. Mastro Plastics Corp. v. NLRB, 350 U.S. 270,(1956). He finds, however, that the contractual no-strike provisions evidence a clear and unmistak- able waiver of the right to engage in work stoppages such as the one at issue and concludes, in agreement with the judge, that the stoppage was unprotected. Sharon Howard, Esq., for the General Counsel. 585 Mark Johnson and Robert Terry, Esgs (Spencer, Fane, Britt & Browne), of Kansas City, Missouri , for Re- spondent. DECISION STATEMENT OF THE CASE HUTTON - S. BRANDON, Administrative Law Judge. This case was tried at Forsyth, Georgia, on 25 and 26 March 1986. The charge was filed by Charles Windell Bryant, on 9 September 1985,1 and the complaint and notice of hearing issued on 15 January,1986 alleging that Custodis-Cottrell, Inc. (Respondent or the Company), violated Section 8(a)(1) of the National Labor Relations Act, in the discharge of Bryant and 11 Other employees2 on 26 August for concertedly engaging in a work stop- page. The primary issue presented is whether the con- certed work stoppage was caused by abnormally danger- ous conditions for work within the meaning of Section 502 of the Act.3 On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a New Jersey corporation with an office and place of business located at Juliette, Georgia, where it is engaged in heavy construction. During the past cal- endar year, Respondent purchased and received at its Ju- liette, Georgia, location materials and supplies valued in excess of $50,000 directly from suppliers located 'outside the State of Georgia. The complaint alleges, Respondent by its- answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and, (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Work of Respondent and A'pplicabl'e Bargaining Agreements This case requires a determination of whether abnor- mally dangerous working conditions existed at Respond- ent's Juliette, Georgia place of business on 26 August. Determination of that issue requires an understanding of Respondent's construction work and methods. The par- ties stipulated to most of the facts involving Respond- ent's operation. Thus, Respondent is involved as a con- tractor in the building of natural draft cooling towers for Georgia Power Company's Plant Scherer, a coal-fired power generating station in Juliette, Georgia. Respond- i All dates are in 1'985 unless otherwise indicated 2 The complaint was amended at the hearing to include ' discharged em- ployees David Sharp, Roy Walters, Don Livingston, Jay Royal, Buddy Barrett, D. Ramsey, Lump Phillips, Harold Morgan, Aubrey Johnson, D. Walker, and Marty Smith. 2 See. 502 in pertinent part provides, "nor shall the quitting of labor by an employee or employees in good faith because ofabnormally danger- ous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." 283 NLRB No. 88 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent completed construction of three cooling towers at Plant Scherer in the past and on 26 August was in the process of constructing a fourth tower, the one involved in this proceeding. A completed cooling tower is ap- proximately 450 to 550 feet in height and is constructed principally of steel reinforced concrete. The principal parts of the cooling tower are the veil (the reinforced concrete walls of the structure that form the bulk of the tower), the columns (large concrete pillars that support the veil);- and, the internals (elements that cool the water passing through the tower). The veil ' is constructed by pouring successive concen- tric rings of concrete one on top of the other until the top of the veil is reached. In performing the construction work, Respondent employs various crafts including iron- workers, carpenters, and laborers who are members of, or are represented by, the Iron Workers' union, the Car- p`enters' union, and Laborers' union, respectively. Three collective-bargaining agreements are applicable to Re- spondent's job. The first is the International agreement between the Carpenters, Iron Workers, and Laborers International Unions and Respondent (Natural Draft Cooling Tower Agreement). This agreement in section 11 provides: In the event of any dispute, the employer agrees that there will be no lock out and the unions agree that there will be no stoppage or slow down of work, nor any strike of its members, either collec- tively, or individually, and all disputes will be set- tied as provided in the following paragraph. A second agreement exists between the International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 387 (Local 387), and the As- sociation of Steel Erectors and Heavy, Equipment opera- tors and is applicable to Respondent's Plant Scherer job. This agreement (Local Master Agreement) includes the following clause at article 3: It is hereby agreed by the Union, and the Employer that the Union will not : resort to strikes (which in- cludes stoppages or slow downs of work) during the life of this agreement. Accordingly,` neither the Union nor the employees will instigate, promote, sponsor, engage in, honor, support, or condone any strike. Finally, a third agreement (Plant Scherer Project Agreement) is binding on Georgia Power Company, its contractors, including Respondent, and subcontractors and the International and local unions affiliated with the Building Construction' Trades - Council Department, AFL-CIO. This agreement contains the following provi- sion at article 15: The Union agrees that so long as the local or area agreement applicable to the central Georgia site is 'in effect, there shall be no strikes, refusals to work, wobbles, walk" offs, slow downs, or picketing for any purpose whatever at the central Georgia site. All local craft unions are signatory :t0 ^ the Plant Scherer Agreement including Local 387. All, the above- noted agreements contain grievance machinery conclud- ing in final and binding arbitration. Under the Natural Draft Cooling Tower Agreement, Respondent employs a composite work force made up of three crafts: carpenters, laborers, and ironworkers. The agreement allows members of each union to perform tasks which under normal practice would be considered within the exclusive work jurisdiction of members of, the other unions. ,Article 9 of the same agreement provides "high pay," a wage premiums for work performed by em- ployees on high construction. The parties stipulated that the construction work involved in this case is inherently hazardous, that employees work at high elevations, and that, as is the case in most construction industry jobs, they are constantly exposed to the elements. They work on a four-tier rope mesh enclosed (except -at the top level) scaffold surrounding the inter and outer rim of the veil. There is a waist-high outside handrail on each level of the scaffold. The scaffold is anchored in concrete and ,supported by I-beams. The morning shift begins at 7 a.m. when the composite crew ascends to the scaffold by way of a wire-mesh en- closed stairway anchored to the veil wall. The composite crew breaks away the plywood forms from the previous day's pour. The carpenters then shape the plywood panels for the formation of the next set of forms utilizing electric saws and drills, the electricity for which is sup- plied by power cables and extension cords running up the veil walls and around the scaffold. In preparation for the next, pour the scaffold is raised approximately 5 feet by a hydraulic pump through a process which takes approximately 30 to 60 minutes. Work continues during the raising of the scaffold with the ironworkers finishing the installation of horizontal re- inforcing steel (rebar) and beginning to place and tie the vertical rebar, which will be, covered in the next day's pour. In effect, the vertical rebar is placed a day ahead of the pour which covers it. Also during the jacking process, the laborers spray lu- bricating oil on the plywood forms and, after the jacking is completed, the carpenters complete buckling the oiled forms into place. The ironworkers continue to install the reinforcing steel and the laborers connect the pipes which carry the concrete for the pour around the veil rim. Before the pour begins, the forms are inspected by the field superintendent who also inspects the scaffold, to make sure that it is properly placed and securely sup- ported. Following this, orders for concrete are submitted and after testing of the concrete as it is' delivered, the concrete is pumped from the base of the veil to the level of the pour. The laborers are responsible for performing the pouring of the concrete and use an ,electrical tool re- ferred to as a vibrator, which is inserted in the concrete to eliminate air pockets. During the pour the ironwork- ers complete the tying of horizontal steel rods and, when installation of all steel is completed, the ironworkers. and the carpenters distribute reinforcing steel around the scaffold for placement during the next day's shift. In ad- CUSTODIS-COTTRELL, INC. dition, the crew normally cleans up the scaffold. Com- pletion of these operations normally coincides with the end of the shift. After the shift is completed, the employ- ees descend from the veil. The foregoing is essentially re- peated each day until the veil is completed. It was stipu- lated that it is the practice in the industry not to inter- rupt the concrete pour except in extraordinary circum- stances. B. The 26 August Walkoff It is undisputed that on 26 August, Respondent em- ployed approximately 145 employees on its project. This figure included 15 ironworkers, 15 carpenters, and 17 la- borers working on the scaffold on tower 4. At the time work began at 7 a.m., the sky was overcast and chances of rain appeared to be increasing. That rain with thun- dershowers was moving into the central Georgia area be- ginning in the early morning as evidenced by the testi- mony of David Livingston, the official in charge of the National Weather Service Station in Macon, Georgia, and official U.S. weather radar observation records made from the U.S. Weather Services Radar Station at Athens, Georgia. According to Livingston 's testimony and the radar records, the intensity of the rain and thundershow- ers increased as the morning wore-on. However-, Living- ston was, unable to testify that showers occurred at Juli- ette, Georgia, during the morning of 26 August or that thunder or lightning occurred at that location . Living- ston testified that rain had been observed at his location, the Macon airport south of Macon , and more than 30 miles from Juliette but no thunder or lightning. That it did rain at the Plant Scherer site during the morning of 26 August is not disputed . What is disputed is the time of the rain, the intensity of the rain, and whether any thunder or lightning was associated with the rain. On that morning Respondent's operation was at pour 21 on tower 4 which meant that at that point the men working on the veil were working approximately 140 feet high. Charging Party Bryant testified that it rained all morning on 26 August , at times harder than at other times. He related that around 10 o'clock he heard thunder at a distance. However, he saw no lightning.4 According to Bryant, who like most of the ironworkers worked on the top level of the scaffold, the employees began to talk about the bad conditions and "going home." The concrete pour began around 10:30 a.m. The ironworkers' foreman, Bobby Brock, came by and,' based on Bryant's uncontradicted and credible testimony, was "cussing" about the wisdom of starting the pour . Around 11:30 a.m. when it was still raining "hard," Bryant saw some ironworkers leaving to descend the 'stairway from the veil. Bryant testified that he and his coworker, iron- worker 'Howard Morgan, therefore decided ' they would leave also, but as 'they began to do so, they were 'told by Brock that if they were going down, they should go back and remove , the vertical rebar that had been set in * Respondent, in the testimony of its Field Superintendent Jack Richey, conceded that when there is thunder and lightning, the men are removed from the tower because then "it's just not a good place to be." If a pour has begun, however, a few men may be left on the tower to bulkhead the pour after which they go to the ground. 587 place but not tied. They did so and then proceeded to go down the stairs, but not before Brock told them that if they went down they were fired. It is undisputed that 11 ironworkers in addition to Bryant left the veil at approximately 11:30 a.m. and went home. Three ironworkers, including Foreman ]Brock, -re- mained on the veil and completed the work that day. The carpenters and laborers also remained on the job and completed the work. The concrete pour continued and Respondent finished the job by drawing, workers from other points on the project. The 12 ironworkers who walked off the job were dis- charged. Of those that testified in this proceeding, all contended that the work on the veil on 26 August under the conditions prevailing was unsafe. Specifically, Bryant testified that it was difficult to work with wet, gloves and with water running out of his shoes. Others complained that there was a possibility of lightning striking the scaf- fold, and that the scaffolding was oily and wet making it slick and difficult for employees to move around. Norman "Buddy" Barrett, one of the ironworkers who walked off, testified that the rain had begun gradually but -kept getting harder and finally before the pour start- ed, it was a "flood." He found it necessary to drop down to the next level of the scaffold as some of the -other ironworkers did so that at least the floor of the scaffold above him gave some protection from the rain. Barrett testified that he walked out with the other' ironworkers because he felt like it was raining too hard, that it' was making everything slick, and that it made it difficult to see what one was doing. Three ironworkers in addition to Bryant, Donald Liv- ingston, "Lump" Phillips, and Martin Smith all testified that they had heard thunder during the morning. Thus, Livingston related that he had heard thunder in the dis- tance and it was "coming" about the time the concrete trucks arrived for the ' pour. s Further, Livingston testified that around the same time he saw lightning in the distant north and described it as intercloud lightning rather than cloud to ground lightning. He further testified that 20 to 30 minutes after the heavier rain started he descended to the next lower level of the scaffold for protection from the rain. Although he and other ironworkers who did the same thing did not perform any work on the second level, none were rebuked for their presence on the lower level. Phillips testified that he heard thunder 30 to 40 min- utes before "the bottom fell out." However, he added that Bryant heard it too and, as already related, Bryant testified it occurred around 10 a.m. According to Phillips when "the bottom fell out," Foreman Brock came by and, referring to Field Superintendent Jack Richey, re- marked he had gone "crazy" and ordered the concrete. Phillips further testified without contradiction that some of the ironworkers replied that they were not going to work and that Brock responded saying lie could not tell them what to do but "you'd be a damn fool to stay up here and work." Nevertheless, as the ironworkers were 5 Records of Respondent show that the first concrete truck arrived about 10:30 a.m. 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the process of leaving, Brock met them at the stairs and told them to- remove the vertical rebar before leav- ing. Some of them did so and then approached the stairs to descend. At that point Brock stated that anybody that "hit the ground" was fired. Brock did not testify. Phillips is credited regarding the statements attributed to Brock. -Smith testified that he had heard thunder at a distance that morning.- Because Smith testified it was at a time when he was pulling concrete forms, I conclude that it was prior to the time the jacking of the scaffold oc- curred so that it must have been some 30 to 40 minutes prior to the time the pour began around 10:30 a.m. ' Neil Rosser, called as a witness by the General Coun- sel, was one of the ironworkers who did not leave the job on 26 August. And while Rosser did not testify con- cerning any lightning or thunder, he testified that it began raining that morning some 20 to 30 minutes after he started work and got gradually harder during the morning. He related that it was raining hard prior to the time the pour began. At that time he went down to the second level of the scaffold. According to Rosser, be- cause he wore prescription glasses and because the rain was so heavy, he could not see what he was doing. He related that if he had been told that he had to work or go home, he would have had to leave. However, because he said he understood that there was a provision in the collective-bargaining agreement that once a pour, had started he could not leave due to weather without being fired, he decided to stay. The consensus of the testimony of,the General Coun- sel's witnesses was that the heavier rain when mixed with-the oil flowing from the oiled concrete forms made the scaffold slippery. They complained that the heavy rain affected their ability to see what they were doing. Although there were drainage channels or slots in the pick boards (the scaffold floor), at least one of the wit- nesses said that some of the slots were filled with con- crete and water stood 'in certain areas. All the General Counsel's witnesses testified that they felt that the weath- er' conditions on 'the job at the time of the walkoff made the" job unsafe. However, only Smith referred to the danger from lightning involved in setting up 17-foot lengths of vertical reinforcing concrete at the top of the veil rim as the ironworkers were required to do. Respondent's witnesses including Field Superintendent Richey, Laborers' Foreman Tallent, and 'Carpenters' Foreman Rodney McCant, all denied hearing any thun- der or seeing any lightning on the morning of the walltoff. All agree, however, that there had been rain that morning. Richey stated there had been a moderate shower before the jacking ` was completed at 8.59 am. There was no more rain until about 10:30 a.m. The pour started about 10:30 a.m. and about 10 to 20 minutes later, there was, a "pretty good rain which did not affect visi- bility." Tallent described the shower occurring after the pour' started as a "small shower" while McCant de- scribed it as a "moderate rain that did not obscure visi- bility." On the other hand, Respondent's witness, Craig P. Parkins, a carpenter, described the rain as a "pretty heavy rain," but he could still see across the interior of the- veil some 250 to 300 feet. Carpenter employee Allan McCant likewise described the rain at the time the iron- workers left as "a pretty good" rain. Similarly, laborers' employee Robert Gray described the rain as a -steady rain, while carpenters' employee Thomas Seymour, testi- fied it was raining "pretty good" when the carpenters left: None of Respondent's witnesses attributed any in- crease- in risks on the job as a result of the rain or exist- ing weather conditions at the time of the walkoff. They encountered no visibility problems which interfered with their work, denied the existence of any standing water on the pick boards, and generally denied the existence of any increased slipperiness due to - rain and excess oil on the scaffold. In short, according to Respondent's evi- dence, the weather conditions did not create any greater danger of injury on the job than otherwise existed on, a normal workday on the tower. C. Argument of the Parties The General Counsel argues, as the complaint alleges, that Bryant and the other ironworkers walked off the job because of their good faith belief that the existing work- ing conditions on the-job at the time of the walkoff made the job abnormally dangerous' within the meaning of Sec- tion 502 of the Act. While conceding that the job was inherently dangerous because of the height at which the employees- were required to work, the weather condi- tions presented new factors which changed the character of the normal working conditions and made them abnor- mally dangerous within the meaning of Section 502. Therefore, the General Counsel asserts, because the walkoff did not constitute a strike by virtue of the appli- cation of Section 502, the walkoff was protected and Re- spondent'sdischarge of Bryant and the 11 other iron- workers interfered with- their Section 7 rights and violat- ed Section 8(a)(1) of the Act. Briefly stated Respondent's argument and defense is that the working conditions of the ironworkers were not abnormally -dangerous at the time they left work and their walkoff, therefore, was not protected under Section 502. Accordingly, Respondent by virtue of the no-strike clauses ' in the collective bargaining agreements was within its, right in discharging those who walked off the job. D. Conclusions Normally, a concerted work stoppage of employees to protect their working conditions , such as a requirement that they work in the rain, is consistent with their Sec- tion 7 rights and is protected under the Act. See Quality C.A. TV.., 278 NLRB 1282 (1986); McEver Engineering, 275 NLRB 921 (1985), _ enfd. 784 F.2d 634 (5th Cir. 1986). But an employer does not interfere with employee Section 7 rights under the Act by discharging them for engaging in a strike in breach of a no-strike provision in a collective-bargaining agreement. This is because, gener- ally speaking, no-strike clauses are viewed as a quid pro quo for provisions on binding arbitration of disputes be- tween parties. Thus, if the dispute is arbitrable, it is pre- sumed that the no-strike agreement prohibits employees from engaging in work stoppages in furtherance of that dispute.- Section 502 of the Act, however, precludes a work stoppage in the face of "abnormally dangerous" CUSTODIS-COTTRELL, INC. working conditions from being treated as a strike or work stoppage which would otherwise breach a no- strike provision. See Clark Engineering p. Carpenters, 510 F.2d 1075, 1079-1080 (6th Cir. 1975). The Board has long held that the test for determining the existence of abnormally dangerous conditions under Section 502 is an objective one. Thus, in Redwing Carriers, 130 NLRB 1208 (1961), enfd. as modified 325 F.2d 1011 (D.C. Cir. 1963), cert. denied 377 U.S. 905 (1964), the Board stated (at 1209): We are of the opinion that the term contemplates, and is intended to insure, an objective, as opposed to a subjective, test. What controls is,not the state of mind of the employee or employees concerned, but whether the actual working conditions shown to exist by competent evidence might in the circum- stances reasonably be considered "abnormally dan- gerous." Likewise, in Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1974), the Supreme Court rejected a subjective test as the measure for determining the existence of an "ab- normally dangerous conditions" under Section 502 stat- ing at 386-387: [A] union seeking to justify a contractually prohibit- ed stoppage under Section 502 must present ascer- tainable, objective evidence supporting its conclu- sion that an abnormally dangerous condition for work exists. This objective standard or measure has consistently been followed in Section 502 cases. See, e.g. Gibraltar Steel Corp., 273 NLRB 1012 (1984); L E. Myers Co., 270 NLRB 1010 (1984); Goodyear' Tire & Rubber Co., 269- NLRB 881 (1984); Richmond Tank Car Co., 264 NLRB 174 (1982); Baker Marine Corp., 258 NLRB 680,(1981); True Drilling Co., 257 NLRB 426 (1981). Moreover, when the work involved is inherently dan- gerous, a finding of the existence of an "abnormally dan- gerous" work situation may not be based on previously existing conditions of longstanding, endured by the em- ployees for a considerable period prior to a work stop- page. As stated by the administrative law judge with Board approval in Anaconda Aluminum Co., 197 NLRB 336 at 344 (1972): Absent the emergence of new factors or circum- stances which change the character of the danger, work which is recognized and accepted by employ- ees as inherently dangerous does not become "ab- normally dangerous" merely because employee pa- tience with prevailing conditions wears thin or their forbearance ceases. [Citations omitted.] And, the hazard presented by the "abnormally danger- ous" working conditions must not be speculative. Rather, the abnormally dangerous working conditions must put the employees in imminent peril. Mine Workers District 6 (Consolidation Coal Co.), 217 NLRB 541, 551 (1975). Considering the, instant case in light of the foregoing principles, I am compelled to the conclusion that the General Counsel has not established the existence of an 589 abnormally dangerous condition of work at the time of the walkoff of the 12 ironworkers here. The record herein fully depicts the general working conditions of employees working on the veil. That it was inherently dangerous was conceded by ' all parties. The critical factual issue is whether the weather viewed by objective standards changed those, working conditions from normally inherently dangerous to abnormally dan- gerous. The elements of weather cited by the General Counsel's witnesses as creating the extra hazardous con- ditions were the lightning (as indicated by the thunder) and the rain. Temperature and wind were not claimed to be factors. No doubt the presence of lightning in the vicinity of the tower would create a new and dangerous working condition not normally encountered in the day-to-day routine. And as Field Superintendent Richey conceded, if lightning was observed in the vicinity, all employees would have been removed from the tower with the ex- ception of only a few' necessary to stop a concrete pour if one had started. Although the General Counsel called an electrical engineer as a witness, Dr. Paul Steffes, to testify regarding risks entailed in working in high places under lightning conditions, it takes no expert in light of human experience to recognize the dangers involved. However, while Steffes testified that lightning .was not entirely predictable, he pointed out that distant thunder would not indicate imminent risk. On the basis of the record considered as a whole and that testimony which I deem credible, objective evidence does not establish an imminent peril from lightning at the time of the work stoppage., Accepting the testimony of the General Counsel's witnesses regarding hearing thun- der, such thunder was remote in both distance from, the site-and time from the walkoff. The last thunder Bryant claims to have heard was around 10 o'clock, an hour and a half before the work stoppage, and even then he admit- ted it was not "real close." This was the same thunder heard by Smith who had placed it much earlier in time. Phillips also, heard the thunder heard by Bryant. Living- ston's testimony was somewhat contradictory on the time he heard the thunder. At one point he put the thun- der as ' occurring an hour after the shift began long before the work stoppage. However, at another point in his testimony in explaining why he left the job., he put the thunder and lightning around the time of the pour and related: I could see across the horizon farther from me, like north, I could see there even more. I could see lightning there and I could hear thunder, and there was more coming and the wind was blowing that way. Based on the U.S. Weather Service maps in evidence, the path of the bad weather system was from the south- west to the northeast. Thus, to the extent Livingston saw lightning on the north horizon it was not headed in', his direction. In view of this and because no other witness heard thunder at any time within an hour of the time the ironworkers left, I find Livingston's testimony on the point to be an incredible exaggeration. I find there were 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no abnormally dangerous conditions existent at the time of the walkoff due to lightning.6 From a consensus of the testimony of witnesses of both the General Counsel and Respondent, one must conclude that a more intense rain began around the time the concrete pour started. Although the witnesses differ in their- description of the intensity of the rain, I con- clude that the rain was at least "drenching." Notwith- standing the fact that a number of ironworkers sought shelter on the second level of the scaffold, they no doubt became thoroughly wet after the concrete pour began if they were not already wet from the earlier, but slower, rain that morning.' I have no doubt that some were un- comfortable and possibly miserable because they were wet. I am also- confident that the rain slowed, if it did not stop altogether, their work pace and made their jobs more difficult. As some of the witnesses noted, it was difficult working in wet gloves and one or two noted that rain on their prescription glasses hampered their sight and work activity. Nevertheless, I find neither the rain nor the wetness of the scaffold created an abnormal- ly dangerous working condition. Uncontradicted testimo- ny reflects that oil and water was present on the scaffold on a daily basis, the former as a result of the spraying of the concrete forms and the latter as a result of the fre- quent hosing off of spilled concrete from the scaffold. I reject that testimony of the General Counsel's wit- nesses that the scaffold was made slick by the rain. It is undisputed that the pick boards, the walking surface of the scaffold, had a -roughened surface which was de- signed to prevent slipperiness. Moreover, the pick boards had channels in them for draining off water. Although the channels may have been blocked in places, it is in- conceivable that each segment of the picks all the way around the veil were so blocked as to create a general safety problem. There was no complaint regarding the slipperiness of the pick boards earlier in the day and sub- stantially before the work stoppage even though they must have become wet from the rain earlier that morn- ing. In addition, unrefuted employer records revealed that the ironworkers had worked before in the rain on a number of occasions on tower 4. The intensity of the rain may not have been as great on such occasions, but prior work under rain conditions demonstrates that rain per se did not decrease significantly the safety of the scaffold or the work. Some of the General Counsel's witnesses suggested that the scaffold was more unsafe in the rain in view of raw materials and tools which cluttered the scaffold sur- 6 Dr. Steffes testified regarding a lightning "zone of protection" estab- lished by the National Bureau of Standards (NBS). According to Dr. Steffes, under the NBS standard, a reasonable zone of lightning protec- tion extends in the form of a cone from the highest structure in an area with the diameter of the cone at its base being twice the height of the structure. The record shows that a 1000-foot tall chimney was located about 900 to 1000 feet from tower 4 Thus, tower 4„ or portions of it, may have been within the zone of lightning protection from the chimney which was fully grounded even though tower 4 was approximately 150 feet tall. However, no exact measurements are reflected in the record, and I make no specific finding on this point. r Some of the members of the composite crew had donned rainwear earlier. Apparently most of the ironworkers had not requested rainwear from Respondent until after the harder rain began. face. This too appears to have been a normal -condition. Rosser testified without contradiction that -the scaffold was normally cluttered and it was "normally a hazard anyway." Did the rain affect the visibility to the extent it ren- dered the job abnormally dangerous? I conclude that it did not. Those employees who stopped work and de- scended to- the second scaffold level to escape the rain were not reprimanded by Respondent. They thus could avoid any hazard associated with attempting to work in poor visibility. Moreover, and in any event, I conclude the rain did not-constitute a significant visibility problem even for those wearing glasses . In so concluding, I find incredible Smith's testimony that it was raining so hard he could not see his hand in front of his face. That testi- mony was contradicted by another credible General Counsel's witness, Rosser, who had no monetary interest in the outcome of the case and was less likely to be biased. Rosser testified that he could see across the veil, a distance of more than 150 feet during the rain. Finally, although not dispositive, it is nevertheless sig- nificant that only 12 ironworkers left the job while 3 other ironworkers remained as well as the 17 laborers and 15 carpenters. It is further noteworthy that the latter two crafts, unlike the ironworkers, worked with electri- cal equipment in the rain in the performance of their jobs and, thus, conceivably encountered greater electrical risks by working in the rain. Apparently, however, they discerned no imminent peril and stayed on the job. Considering all the foregoing, I find and conclude that the working conditions of the ironworkers on 26 August at the time of the work stoppage were not made "abnor- mally dangerous" by the then-existent weather situation. Nothing `had changed from their normal working condi- tions except, perhaps, for their subjective perceptions of danger. Thus, the application' of Section 502 does not render the work stoppage here protected. Therefore, the work stoppage remained unprotected, and the discharges for participation in the work stoppage did not violate the Act. At the hearing the General Counsel sought to intro- duce evidence of a joint labor/management safety agree- ment between Georgia Power Company and the North Georgia Building and Construction Trades Council ap- plicable to the Plant Scherer job, and allegedly applica- ble to contractors, including Respondent, on the project. In the absence of a clear explanation by the General Counsel of how the safety agreement related to the issues in the instant case, Respondent's objection based on .relevance to the receipt in evidence of the agreement was sustained. The General Counsel was, allowed to make an offer of proof, however. In her brief, the Gener- al'Counsel requested reconsideration of my ruling-on the subject, and, relying on the safety agreement;, argued that the ironworkers engaging in the work stoppage were seeking to enforce that' agreement. She claimed that under, the safety agreement, the ironworkers were not re- quired to work under unsafe' conditions and concluded that in view of the "driving rain and thunder [which] created emergent conditions, it is unreasonable to require CUSTODIS-COTTRELL, 'INC. or expect employees to follow grievance complaint pro- cedures." While not clearly articulated, it appears that the Gen- eral Counsel is arguing that the safety agreement created an exception to Respondent's no-strike clauses in its agreements with the Iron Workers Union. This would make the safety agreement relevant to a determination of the protected nature of the walkout and make Section 502 and the objective test thereunder inapplicable. Ac- cordingly, to address the issue, I shall reverse my ruling at the hearing and accept the General Counsel's offer of proof. Based on the offer of proof, the safety agreement pro- vides that employees shall not be required to work under unsafe conditions, and precludes disciplining employees for complying with company safety procedures or Gov- ernment rules. No evidence was presented, however, that the employees were being asked or directed to^ breach any company policy of Georgia Power Company or Re- spondent or violate any specific Government rule." Moreover, Respondent's counsel, in arguing at the hear- ing the irrelevance of the,safety agreement, quoted with- out objection or contradiction from the General Counsel the following provision in the labor/management safety agreement; "The cooperative effort of , a labor/man- agement safety -and health program is not intended to affect existing collective-bargaining agreements." The General Counsel was unable to cite any authority at the hearing and cited none in her brief to support the no-strike exception she now claims. It is patently clear that the, safety agreement does not expressly create an exception to Respondent's no-strike clauses and the Gen- eral Counsel does not argue otherwise., Instead, she ap- parently seeks to create an implied exception which would justify employee use of a subjective standard here in determining the existence of dangerous working con- ditions. Exceptions to no-strike clauses are not to be lightly inferred. As the Supreme Court, in rejecting a subjective measure for establishing abnormally dangerous conditions of work for Section 502 cases, said in Gateway Coal Co., supra at 386: Absent the most-explicit statutory command, we are unwilling to conclude that Congress intended the public policy favoring arbitration and peaceful reso- lution of labor disputes to be circumvented by so slender a thread as subjective judgment, however honest it may be. 9 The Plant Scherer project agreement which Respondent concedes is binding on it and which contains one of the no-strike clauses relied on by Respondent in its defense contains its own provision on safety at art. 14. There the employees agreed to be bound by the "safety rules and regula- tions as established by the Employer in accordance with the Construction Safety Act and OSHA." There was no evidence presented in this case reflecting or even suggesting that Respondent's operations on 26 August breached any such safety rules or regulations. - 591 By logical extension the same strong public policy in favor of peaceful resolution of labor disputes militates against any implied exception of the no-strike clauses based on the labor/management safety agreement here. Such an inference is particularly unwarranted, when the safety agreement specifically provides that it will not affect existing bargaining agreements of the contractors. In particular, it should not override an existing bargain- ing agreement containing its own safety provision. The fact that a dispute on, a, safety complaint may not be immediately resolved through a grievance procedure also does not compel the implied exception the General Counsel seeks. If it were otherwise, all no-strike clauses would be rendered ineffective by the subjective percep- tion of employees regarding safety concerns, and Section 502 of the Act, insofar as it applies to work'stoppages for abnormally dangerous working conditions would become meaningless surplusage. Finally, and in any event, it must be noted that the ironworkers who walked off the job on 26 August were not shown to be aware of a safety agreement, much less seeking to implement its terms. Thus, there is, no factual basis for finding that they were protected under the theory that they were seeking to implement -the terms of a labor/management safety agreement creating an excep- tion to the, no-strike clauses. Considering the foregoing, I conclude no exception to the no-strike clauses has been established by the General 'Counsel. I find the employees who were discharged for 'walking off on 26 August were unprotected under the Act and their discharges, therefore, did not violate the Act. CONCLUSIONS OF LAw 1. Respondent, Custodis-Cottrell, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not violate Section 8(a)(1) of the Act in the discharge of the employees named in the com- plaint, as amended, who engaged in the work stoppage on 26 August 1985. 3. Respondent did not violate the Act in any other manner set forth in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The complaint is dismissed in its entirety. 9 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.