Hendrickson Bros., Inc

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hendrickson Bros., Inc and Steven Smith and Charles Curd. Cases 29-CA-8479 and 29-CA- 9668 28 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 2 November 1983 Administrative Law Judge Stanley N Ohlbaum issued the attached decision The Respondent and the Charging Party filed ex- ceptions and supporting briefs, and the General Counsel filed cross-exceptions and a supporting brief The Charging Party and the General Counsel filed answering briefs to the Respondent's excep- tions 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, findings,' and conclusions 2 as modified 1 The judge found that the Respondent violated Section 8(a)(1) of the Act by discharging employ- ees Charles Curd and John Kuebler because of their protected concerted activity in protesting the Respondent's working conditions As more fully set forth in his decision, the judge found that both employees became ill and left the jobsite 20 April 1982, that their leaving work was not a strike pro- hibited by the no-strike provision in the parties' collective-bargaining agreement, and that the Re- spondent's alleged reason for discharging them was pretextual The judge rejected the Respondent's contention, renewed in its exceptions, that the discharges should be deferred to contractual arbitration He reasoned that neither the employees nor the Union, Teamsters Local 282, elected to use that forum, and that the Respondent made no effort to compel arbitration We agree with the judge that deferral is inappropriate, but only for the following reasons In United Technologies Corp, 268 NLRB 557 (1984), the Board held that cases alleging violations I The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm 1951) We have carefully examined the record and find no basis for reversing the findings 2 The General Counsel has excepted to the judge's reliance, in sec ITI3,2, par 4 of his decision, on Nassau & Suffolk Contractors' Assn, 118 NLRB 174 (1957), as it bears on the relationship between the Respondent and Teamsters Local 282 That case involved a union other than Local 282, and we therefore agree that the judge's reliance on it is misplaced of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act are subject to deferral to arbitra- tion We shall not, however, defer Curd's and Kuebler's discharges, because deferral would in- volve representation by Teamsters Local 282, a union whose interest is clearly inimical to the dis- chargees Further, the Respondent's own interest conflicts with Curd's and Kuebler's in ways that go well beyond the immediate discharge issue 3 Although the Respondent and the Union were willing to arbitrate the discharges, Curd and Kuebler declined the Union's offer to represent them because, as the judge found, they distrusted the Union and doubted whether it would properly represent them in an arbitration proceeding The judge documented at considerable length the long- standing animosity between Local 282 representa- tives and the employees, and we need not recount it here We note, however, that Curd and Kuebler engaged in extensive efforts to oust Local 282's leadership and participated in various unwelcome challenges to the Local's administration of the col- lective-bargaining agreement In Frank Mascah Construction, 251 NLRB 219 (1980), enfd mem 111 LRRM 2423, 95 LC If 13,919 (2d Cir 1982), the Board found that Local 282 committed numer- ous unfair labor practices against Curd and Kuebler in reprisal for their exercise of Section 7 rights and their filing charges with the Board, including caus- ing their discharges, refusing to refer them to job assignments, preferring fraudulent intraunion charges against them, and refusing to process their grievances The Respondent's hostility toward Curd and Kuebler is also fully detailed in the judge's deci- sion He found that the Respondent's officials, in- cluding Foreman Brown and Executive Vice Presi- dent Farley, openly resented and resisted their vig- orous attempts to enforce the contract and improve working conditions Given this background, in which both parties to the contract are plainly op- posed to the employees' interests, we conclude that deferral to arbitration is inappropriate The Board addressed a similar situation in Kansas Meat Pack- ers, 198 NLRB 543, 544 (1972), stating as follows [W]e conclude that it would be repugnant to the purposes of the Act to defer to arbitration in this case as to do so would relegate the Charging Parties to an arbitral process author- ized, administered, and invoked entirely by parties hostile to their interests [Footnote omitted ] 3 Member Zimmerman agrees, based on his dissent in United Technol ogles, that deferral is not appropriate 272 NLRB No 74 HENDRICKSON BROS , INC 439 We turn next to the merits of the discharges The judge found Curd and Kuebler complained to Foreman Brown 20 April 1982 that because the Respondent was not watering the roads at its land- fill project, the thick dust impaired visibility and breathing They had voiced similar complaints about the dust previously Brown took no action Curd and Kuebler worked throughout the morn- ing, broke for lunch, and resumed work until short- ly after 1 p m, when Kuebler told Brown he could no longer continue working and had to see a doctor Brown instructed him to park his truck and mark the time on his work manifest Kuebler ex- plained to Curd that he was ill, Curd replied that he was also suffering from the dust Curd parked his truck Kuebler telephoned a physician to make an appointment, then telephoned the union business agent to explain why they were leaving the jobsite Both employees returned to Brown Curd told Brown he could hardly breathe, the dust was making him sick, and he had to go home Brown said he could go but that he should note the time in his manifest Curd and Kuebler gave their mani- fests to Brown and drove off together to seek med- ical attention They confirmed in their manifests they were leaving because of the thick dust at the jobsite 4 Shortly thereafter Curd and Kuebler re- ceived telegrams from the Respondent telling them they had been fired That afternoon, according to his testimony, Ex- ecutive Vice President Farley decided to discharge Curd and Kuebler after Brown told him they had complained about the dust and other job condi- tions, and then left work without permission Farley testified that he discharged them for leaving without permission, jeopardizing the Respondent's contract with the Town of North Hempstead, and reducing the day's production Although Farley knew that the town's watering truck had broken down at the jobsite, he considered Curd's and Kuebler's reason for leaving unacceptable Farley refused to speak with Curd or Kuebler after he dis- charged them The Respondent provided Curd and Kuebler with only one reason for the discharge, leaving work without authorization, but the judge found based on consistent record evidence that Brown permitted them to leave The judge also found that the Respondent had no rule prohibiting employees 4 The record establishes that they left with Brown's permission Bull dozer operator Prelusky testified he heard Brown telling Curd to park his truck and note the time in his manifest Brown's job chary shows that he instructed both Curd and Kuebler to park their trucks and mark their manifest with the time they parked them Executive Vice President Farley admitted that Brown had authority to excuse drivers from work, and that drivers needing medical assistance would have reason to leave Curd and Kuebler testified that they obtained Brown s permission to leave from leaving work because of illness, and that other employees had done so on past occasions without incident The Respondent's contention that Curd's and Kuebler's leaving the job violated the collective-bargaining agreement's no-strike clause is entirely without merit 5 We agree with the judge's conclusion that the Respondent discharged Curd and Kuebler in repris- al for their protected concerted activities, namely their complaints about working conditions at the Respondent's landfill project Farley admitted that he arrived at his decision to discharge them when he heard from Brown that they had been complain- ing about the dust and the lack of a functioning water truck at the jobsite, and the judge rejected Farley's explanation that they left without authori- zation We find that Curd and Kuebler acted con- certedly in protesting the Respondent's working conditions on 20 April 1982, that the Respondent knew their conduct was concerted, that their pro- tests concerned fundamental conditions of employ- ment protected by the Act, and that the Respond- ent's decision to discharge them resulted directly from their concerted action and not from allegedly leaving work without authorization 6 2 We agree with the judge, for the reasons stated in his decision, that the Respondent dis- charged employee Steven K Smith in violation of Section 8(a)(3) and (1) of the Act We also agree that the judge properly refused to defer to an arbi- tration award upholding Smith's discharge, but only for the reasons we discuss In Olin Corp , 7 the Board set forth the following test for deferral to arbitration awards We would find that an arbitrator has adequate- ly considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitra- tor was presented generally with the facts rele- vant to resolving the unfair labor practice [Footnote omitted ] The Respondent allegedly discharged Smith for disobeying orders to drive his truck to the Nassau jobsite on 13 November 1980 The arbitrator re- ceived and considered evidence bearing on this narrow factual question, including whether Smith 5 For this reason, we find It unnecessary to pass on the judge's finding that Curd's and Kuebler's departure from work was Independently Just' fled under Sec 502 of the Act 6 See Meyers Industries, 268 NLRB 493, 494 (1984) Member Zimmer- man agrees that the Respondent violated Sec 8(a)(1), but finds it unnec essary to apply his dissenting opinion in Meyers Industries, because the employees here were engaged in actual concerted activities 7 268 NLRB 573, 574 (1984) Member Zimmerman dissented in Olin, but agrees that the arbitrator did not pass on the unfair labor practice Issue 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complied with alleged orders from the Respond- ent's foremen 13 November, whether he worked a full 8-hour shift on that day, and whether he cor- rectly marked his job manifest It is undisputed that the parties presented no evidence concerning what the judge found to be the actual reasons for Smith's discharge, including his grievance filing, criticism of the parties' joint administration of the collective- bargaining agreement, and related internal union activities Accordingly, it is evident that the arbi- trator was not generally presented with the facts relating to resolving the unfair labor practice issue as Olin mandates 3 In the remedy section of his decision, the judge formulated a make-whole remedy requiring that the Respondent reimburse the discriminatees for any income tax losses they might incur as a result of their receiving backpay in a one-time pay- ment The judge predicated his recommendation on the assumption that lump sum reimbursement may force the discnminatees into a higher tax bracket than they would otherwise have occupied but for their unlawful discharges Such a remedial provi- sion, however, is contrary to settled Board policy,8 and we shall delete it from our Amended Remedy CONCLUSIONS OF LAW 1 By discharging employees Charles Curd and John Kuebler 20 April 1982 because of their pro- tected concerted activities in protesting working conditions, 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 2 By discharging employee Steven K Smith 14 November 1980 because of his protected concerted activities, including internal union activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act AMENDED 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 aim, order the Respondent to offer Charles Curd, John Kuebler, and Steven K Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- 8 See Secs 10648-10649 of the Board s Casehandling Manual (Part Three—Compliance Proceedings) Laborers Local 282 (Austin Go), 271 NLRB 878 (1984) viously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them Backpay shall be computed as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp, 231 NLRB 651 (1977) See gen- erally Isis Plumbing Co, 138 NLRB 716 (1962) We shall also order the Respondent to remove from its files any reference to the unlawful discharges and notify the employees in writing that it has done so and that the discharges will not be used against them in any way ORDER The National Labor Relations Board orders that the Respondent, Hendrickson Bros, Inc , Valley Stream, New York, 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, including activity protesting working conditions, seeking enforcement of collec- tive-bargaining agreements, and internal union ac- tivity (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 Charles Curd, John Kuebler, and Steven K Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them 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 Town of North Hempstead jobsite in Roslyn, New York, and its Valley Stream, New York place of business, copies of the attached HENDRICKSON BROS , INC 441 IA notice marked "Appendix B " 9 Copies of the notice, on forms provided by the Regional Direc- tor for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able 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 9 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the Na tional Labor Relations Board shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX B 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 activities, including protesting working conditions, seeking enforcement of the collective- bargaining agreement, and internal union 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 Charles Curd, John Kuebler, and Steven K Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any net in- terim earnings, plus interest WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way HENDRICKSON BROS , INC DECISION PRELIMINARY STATEMENT, ISSUES STANLEY N OHLBAUM, Administrative Law Judge This consolidated proceeding' under the National Labor Relations Act (Act), was litigated before me in Brook- lyn, New York, with all parties participating through counsel and afforded full opportunity to present evidence and contentions, on 23 trial days ranging from November 15, 1982, to June 22, 1983, when all sides finally rested Thereafter, following several unopposed time extensions at request of counsel, briefs were received on September 12, 1983 The trial record encompasses 3048 pages of transcript and 1220 of exhibits plus a visualized television program, and posttrial briefs consisting of an additional 211 pages, or 4479 written pages in all, to say nothing of interlocutory motions The entire record and briefs have been carefully considered (Only such exhibits as were received in evidence have been considered ) The basic issues presented are whether Respondent Employer violated Section 8(a)(3) and (1) of the Act through its discharge of its employees Charles Curd, John W Kuebler, and Steven K Smith On the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS I PARTIES, JURISDICTION At all material times, Respondent, a New York corpo- ration with principal office and place of business in Valley Stream and a jobsite at the Town of North Hempstead landfill in Roslyn, Long Island, New York, has been and is engaged in providing heavy construction and related services In that business, during each of the representative years immediately preceding issuance of each of the complaints, Respondent purchased and caused to be transported and delivered to its Valley Stream premises machinery, trucks, sand, gravel, and other goods and materials valued in excess of $50,000, di- rectly in interstate commerce from other States During each of the same periods, in that business, Respondent also performed heavy construction services valued in excess of $50,000, for other New York State entities and enterprises, including the Town of North Hempstead, which annually receives there, directly in interstate com- merce from places outside of New York State, goods and materials valued in excess of $50,000 I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that, at all of those times, Local 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters Local 282) has been and is a labor organization as defined in Section 2(5) of the Act ' Case 29-CA-9668 Complaint issued on May 26, growing out of charge filed Apnl 23, 1982 Case 29-CA-8479 Complaint issued on August 31, 1982, growing out of charge filed December 1, 1980 On No vember 12 1982, the cases were consolidated for trial 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II ALLEGED UNFAIR LABOR PRACTICES A Introduction This case involves Respondent's discharge of three employees—Charles Curd, John William Kuebler, and Steven K Smith Since the discharge of Curd and Kuebler occurred at the same time as a result of the same incident, they will be considered separately from that of Smith, which occurred at a different time and in- volved a different episode However, the descriptive background which follows is common to all three dis- charges B Background 1 Business and organization of Respondent Employer Formed over 50 years ago, Respondent is engaged in extensive general contracting heavy construction oper- ations (highways, sewers, etc ) in Long Island, New York In those operations on an average 1981 day, Re- spondent employed 35 drivers of trucks and associated equipment, 150-200 laborers, and 100-125 operating en- gineers Except for office administrative staff, all of Re- spondent's employees are unionized—the drivers under Teamsters Local 282 The following is a listing of some names in Respond- ent's hierarchy who figured in events to be described Name Capacity in Respondent Charles Brown Labor foreman at Port Washington landfill project (at which Curd and Kuebler were discharged) Antonio DaSilva Labor foreman Joseph H (Joe) Executive Vice President (in Farley overall charge of all operations) Frank Henry Farwell Timekeeper Anthony Graziano Asphalt foreman George Greenwood Asphalt foreman at Islip "Joint Venture" project Milton Hendrickson 2 President John C Hendrickson2 Secretary/Treasurer John F Hendrickson Job Manager at Islip sewer (son of John C and (Nassau) jobsite cousin of Milton) Arthur Nelson Rason Asphalt Co (Broad Hendrickson 2 Hollow, Farmingdale, L I) Plant Manager Arthur Nelson (Skip) Rason Asphalt Co 3 Hendrickson, Jr Maintenance Engineer at "Broad Hollow," Farmingdale, L I Ricky Lorett 2 Job Superintendent of Merrick project, asphalt 2 Did not testify 3 Rason Asphalt Co Fabncates asphalt Milton Hendnckson, president of Respondent, is also president and a principal of Rason Many of Re spondent s trucks are stabled at Rason $ Farmingdale (Long Island) loca tion foreman there Richard Lutjin2 Job Superintendent of Islip "Joint Venture" project (at which Smith was discharged) Eugene G Mallin Rason Asphalt Co 3 Superintendent at Melville, L I Dick Matthews Weighmaster at Farmingdale, L I John Merman 2 Job Superintendent at Levittown sewer project ("L-1") Joseph Nicolosi2 Vice President in charge of all field operations Frederick Joseph Job Superintendent (1978 at Islip) _ Laverne J (Jack) Job Superintendent Norton (1978 at Bethpage) John J Parr Nicolosi's assistant and Farley's "legman" John Trial° Labor foreman at Islip "Joint Venture" project The following persons in the union hierarchy figure in events to be described Michael P Bourgal Business Agent James Gesualdi2 Business Agent Ed Silvera2 Business Agent Paul Gattus4 Steward The three employees whose discharges are here in question (Curd, Kuebler, and Smith) were rank-and-file truckdrivers, members of Teamsters Local 282 (as they had to be under the collective agreement between Re- spondent and that Union) 2 Respondent Employer's relationship with Teamsters Local 282 Respondent has for 20 or more years had a collective- bargaining relationship with Teamsters Local 282, re- newed triennially, reflected in two separate collective agreements, one known as the "asphalt contract" (G C Exh 2A) and the other as the "heavy construction and excavating contract" (G C Exh 2B) 5 These are appar- 4 Designated and appointed by Union Business Agents Bourgal and Gesualdi Gattus, who does no physical work, is paid by Respondent at a higher rate than its dnvers, and is furnished by Respondent with a corn pany van which he drives around from jobsite to jobsite He also plays a role in the daily "shapes and job assignments of drivers, as well as in their complaints 5 The reason for having two separate contracts, as explained by Re spondent s executive vice president Joseph 11 Farley, is that in past years prime contractors did only excavation work, and that asphalt work in- volves more costly features and is higher paid (perhaps as much as $11 per day or $55 per week) Under the two contracts, drivers (i e, Team- sters Local 282 members) were paid at two different rates, dependent on whether they worked on excavation or on asphalt—so that the same chrver could be paid at two different rates depending on the kind of work done on the particular day (or part of the day, possibly) The technically specified workday also differed under the two contracts, it being 8 a m — Continued HENDRICKSON BROS, INC 443 ently negotiated through Nassau-Suffolk (New York) Contractors Association, consisting of some 200 members comprising most of the construction contractors in the area and of which Respondent's former principal Arthur Hendrickson was a founder Teamsters Local 282, which supplies the drivers and other workers to the Long Island building contractors under these collective agreements, thus has for long en- joyed and continues to enjoy a most substantial and pre- sumably lucrative and exclusive labor-pool supply ar- rangement with this large employer group by virtue of what has become these historically renewing collective agreements Teamsters Local 282 Business Agent Michael P Bour- gal testified here that notwithstanding the fact that there have been hundreds of complaints or grievances by em- ployees under these contracts, he has never filed a charge before the national or state labor relations board on behalf of any employee, regarding a discharge or other- wise (He also testified that—notwithstanding the sub- stantial number, character, and continuing nature of Re- spondent's employees/Local 282 members' complaints regarding working conditions at Respondent's Port Washington landfill project, infra, sec II,B,6 and sec II,C,1—he never visited that project prior t to the dis- charge of Curd and Kuebler on April 20, 1982, nor, ac- cording to Bourgal, did the other Union Business Agent Gesualdi, either ) Insight into the past history of the long and close rela- tionship between Respondent Hendrickson and Team- sters Local 282 (through Nassau and Suffolk Contractors Association) may be gleaned from Nassau & Suffolk Con- tractors' Assn , 118 NLRB 174 (1957) (See also G C Exhs 30, 32[1]-[1], and C P Exhs 1 [b]-[j] and 2[a]-[c] ) 3 Nature and extent of protected concerted activities of discharged employees There is no doubt whatsoever that the three dis- charged employees have an extensive history of involve- ment in a variety of concerted activities within the Act's protection It would serve no necessary purpose to rehash in detail the circumstances of the far-ranging con- certed activities of Curd, Kuebler, and Smith over the years antedating their discharges here under consider- ation Much of the record is replete with a description of those activities, explored and recounted in exhaustive detail at the trial, including their employer's, that is Re- spondent's, knowledge thereof and reactions thereto The nature and extent of those activities—protected under the Act—and of Respondent's reactions may be gleaned from Figure I 6 It is at any rate clear that from Respond- ent's viewpoint those activities were nettlesome 4 30 p m with a half hour lunch under the "excavation" contract but 8 a m —5 p m with an hour lunch under the "asphalt' contract The bifur cated pay/hours system formed, as will be shown, one of the matters of concern by the three discharged employees and to which they addressed their conjoined efforts, successfully, to achieve a single rate of pay for all drivers (sec II,B,3, Infra), thereby bringing Respondent s pay rates in line with those of other employers 6 Omitted from publication As a result of proceedings instituted by Curd and/or Kuebler against Teamsters Local 282 (Frank Mascah Construction, 251 NLRB 219 (1980), enfd 697 F 2d 294 (2d Cir 1982)), 7 in 1980 the Teamsters Local 282 job as- signment shape list was required to be reformed and pro- visions of the collective agreement were required to be enforced Also Teamsters Local 282 was restrained from "bringing false and fraudulent charges against its mem- bers and expelling or suspending them," and a far-rang- ing order was issued against that union (and secondarily against various employers) 4 The organization known as "FORE" The disenchantment of some of Respondent's employ- ees, spearheaded by Kuebler, Curd, and Smith, with their mandatorys union representation and its lenient en- forcement or nonenforcement of its contractual provi- sions with Respondent, and their dissatisfaction with that Union's allegedly loose concern for their interests and needs in their employment relationship with Respondent, led them to try to oust that Union's leadership Those at- tempts proved abortive Mechanisms utilized by them in their continuing efforts to expose what they regarded as that Union's nonfeasance and misfeasance toward them took various forms—election challenges, Board charges, and proceedings (referred to above), complaints to the U S Department of Labor, lawsuits in the courts (to re- strain proposed union investment of membership trust funds in a Nevada gambling enterprise (C P Exh 1(e), pp 4-5 and C P Exh 1(g), pp 3-4)), and in relation to an allegedly unauthorized or improper $1,600,000 loan by Teamsters Local 282 to a DesPlaines (suburb of Chi- cago), Illinois bank (C P Exh 1(j)), testimony at Con- gressional hearings, formation/leadership/officership of an organization known as "Fear of Reprisal Ends" (FORE), and considerable publicity 9 7 That Board proceeding is officially noticed Respondent's objection to taking official notice thereof is denied Cf e g Seine & Line Fisher men's Union, 136 NLRB 1 3 fn 4 (1962) enfd 374 F 2d 974 (9th Cir 1967), cert denied 389 U S 913 (1967) 8 The collective agreements of Teamsters Local 282 with Respondent require the latter's drivers to join and maintain membership in that Union as a condition to their continued employment G C Exhs 2A and 2B sec 1 and 1A 9 A plethora of written, to say nothing of verbal, publicity, largely through the medium of FORE, as to the objectives and activities of the combined forces and concerted efforts of those of Respondent's employ ees led by or appealed to by the three employees whose discharges are here in question, has been introduced into the record Among the written examples are G C Exhs 3, 20 (enfd 697 F 2d 294 (2d Cll. 1982)), 30, 32(a)-(j), and C P Exhs 1(a)-(j) and 2(a)-(c), which Illustrate some as pects of the breadth and intensity of the efforts of these, employees to ameliorate their terms and conditions of employment through cleaning up" their Union and achieving proper administration and enforcement of their collective agreements with their employer, i e, Respondent G C Exhs 31(a) and (b), as well as C P Exh 3, refer to or consist of Kuebler's November 1981 testimony before Congressman Pepper's U S House of Representatives Select Committee on Aging The welfare and pension fund is one to which Respondent Hendrickson here is a party and in which its employees are intended to share as beneficiaries Ac cording to Kuebler, an injunction had been issued by United States Dis tnct Judge Mishler in the Eastern District of New York restraining the proposed loan or investment of funds of Teamsters Local 282 to a Las Vegas gambling casino 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no doubt that these activities, if for no other reason than their attendant publicity, were well known not only to the hierarchy and general membership of Local 282, including its members in Respondent's employ, but also to Respondent's principals, officials, su- pervisors, and foremen as well I discount Respondent's attempted minimization, at the instant hearing, of its awareness and concern over these activities, which were matters of common knowledge The credible evidence, as well as the inherent likelihood of the situation, is en- tirely to the contrary and establishes that Respondent was not only well aware of these activities but actively disfavored them It is unnecessary here to speculate or determine why Certainly they were aimed at better con- tract terms and conditions, as well as more forceful ad- herence to subsisting contractual requirements—objec- tives which, in the natural way of things, were hardly calculated to arouse Respondent's enthusiasm since, if nothing more, they would have involved added costs for Respondent The fact is that Respondent, through its agents, not only removed FORE placards, posters, and other publicity (in alleged contrast to those of Teamsters Local 282), but actively inveighed against its activities, referring to it as being, among other things "shit," with the union hierarchy clearly sharing that sentiment The further fact is that many if not most of the specific con- certed protected activities of the three discharged leaders of FORE, here under consideration, were carried out through or were inseparably connected with that organi- zation—their basic purposes and objectives were, in es- sence, one and the same It is entirely clear that Curd, Kuebler, and Smith did not endear themselves to Respondent by their zealous pursuit of these activities On the contrary, they aroused Respondent's resentment and hostility and thereby tar- geted them for retaliatory counteraction 5 Criminal prosecution of Teamsters Local 282 hierarchy During the progress of the instant proceeding, Team- sters Local 282 President John A Cody was convicted in the United States District Court for the Eastern Dis- trict of New York and sentenced for "labor racketeer- ing" (See also G C Exhs 30, 32(040, and C P Exhs 1(b)-(0, 2(a)-(c), and 3) Although I give no weight to that in connection with any finding or outcome herein, it is nevertheless noted that, as established herein, at that trial, Milton A Henderson, president of Respondent, tes- tified on behalf of Cody (Tr 1860 ff, , G C Exh 49, pp 1860-1878), notwithstanding the latter's seemingly publicized and lengthy prior history of questioned in- volvements (supra, secs II,B,2, II,B,3, and II,B,4, and ex- hibits there noted) 6 Respondent's Port Washington landfill job project a The Port Washington landfill" The Town of North Hempstead—which includes Roslyn, Westbury, Great Neck, Kings Point, Floral Park, New Hyde Park, Sands Point, New Castle, Man- hasset, Port Washington, and parts of Mineola, Old Westbury, and Glenwood Landing—is one of three towns in Nassau County on Long Island in New York It covers an area, residential and commercial, of about 25 square miles, with a population of around 250,000 Since around 1975, all North Hempstead garbage of every va- riety, transported by private carters, has been dumped or deposited in a garbage dump known as the Port Wash- ington landfill, formerly a sand/gravel mining pit In- coming garbage is weighed and a fee paid before deposit Prior to 1978, this garbage was incinerated Since then, it has been collected in huge mounds or hills which are not chemically treated When these garbage hills reach 165 feet (currently over 185 feet) above sea level, they are covered (after moving and compacting as deemed appro- priate), or supposed to be covered, with 3 or 4 feet of earth, topsoiled, and planted Then a new such area is built up Thus the garbage dumping area or "landfill" is expanded (According to Skidmore," 200-250, or per- haps as many as 500, according to Bartoldus," truck- loads of garbage, hauled by private garbage collectors (sanitationmen) are dumped into the landfill daily Each day's deposit of around 900 tons or 5 to 7 feet of garbage is supposed to be covered with 6 Inches of sand at night By April 1982 the landfill covered an area of around 4000 feet (E-W) x 1500 feet (N-S), or around 150 acres, of which about 39 acres contained over 2 million tons of garbage Approximately 3000 feet to the east is Long Island Harbor, to the west are a golf club, private homes, and a school At some time, the Port Washington landfill was en- cased, or attempted to be encased or confined, at the "bottom," in a 20/1000 of an inch plastic liner (allegedly deemed to be "impermeable" for "practical" purposes for perhaps 100 years), to which there sinks the "leachate" fluid generated by the decomposing garbage The leach- ate flows off, through a drainage system, to a treatment plant about 500 feet northwest of the garbage dumping area, which, as already indicated, was in April 1983 at a 185-foot level The leaching process throws off a mist The remainder of the garbage continues to "settle" or to "compact" itself gradually, like peat moss, perhaps—if undisturbed—for aeons of time According to Bartol- dus," it has been necessary to remove sludge leak or '° Based largely on testimony of North Hempstead Department of Public Works Senior Civil Engineer Rudolph Bartoldus, North Hemp stead Solid Waste Department Landfill Supervisor (formerly Port Wash ington landfill foreman) Edward Skidmore, and Nassau County (New York) Health Department Division of Environmental Health Bureau of Land Resources Management Deputy Director Marvin Fleisher, all Re spondent's witnesses " Supra at fn 10 i2 Id 1 3 Id HENDRICKSON BROS , INC 445 "leached" out of the decomposing garbage, containing heavy metals including magnesium, zinc, silver, gold, lead, mercury, iron, and copper This is done by a crane, with the yield dumped into open trucks of Respondent Hendrickson operated by the latter's drivers Of the 500 or more (according to Bartoldus) trucks en- tering the landfill daily, some are latched closed and some are open In addition to the steady stream of pri- vate garbage trucks and the construction trucks of Re- spondent in connection with its job project at the landfill (infra), adding to the vehicular traffic there, the Town of North Hempstead also has its own trucks and heavy equipment, consisting of (in 1981-1982) around six 10- wheel dumptrucks hauling fill, as well as bulldozers/- payloaders In an attempt to "keep the dust down," in Bartoldus' terminology, the Town of North Hempstead has been utilizing two watering trucks (a 10-wheel Mack tank truck with 4000- or 5000-gallon capacity, and a tractor- trailer carrying a 5000- or 6000-gallon tank) at the land- fill, mainly to wet down roads traversed by the town trucks and the private garbage collectors' trucks, but only when the town's Department of Solid Wastes (not under Bartoldus' supervision) considers it "necessary" According to town official Fleisher" the town watering truck was utilized only when it was "particularly hot and dry" or if "excessive dust [was] blowing" Because of continuing "dust problems," in around September 1981 the Town of North Hempstead authorized Re- spondent Hendenckson, in connection with the latter's construction job project at the landfill (infra) to supply its own watering truck, at the town's expense Town of- ficial Fleisher concedes that even three watering trucks may have been necessary under existing conditions at the landfill at varying times Fleisher further concedes that if the landfill roads were not watered down in the presence of "excessive" dust, driving conditions there could be "hazardous" He also acknowledges that the chemical composition of such "dust" would determine its added toxicity Called as Respondent's witness, Bartoldus" testified that 2-3 weeks after garbage is deposited, in consequence of anaerobic decomposition it generates methane, in odorless and colorless gas which is explosive and lethal if inhaled without adequate oxygen supply 16 According to Bartoldus, methane continuously escapes steadily from recent garbage piles, as it also does from conventional heating/illuminating open gas jets, at the same time, fresh garbage dumps also emit and discharge other gases, including hydrogen sulphide, toxic vinyl chlorides (human carcinogens), carbon dioxide, and traces of others There has been no local testing for tnchlore- thane/tnchlorethylene (e g, benzene), carcinogenic and toxic if not lethal in drinking water, but concededly these were reported even in the related Nassau County report (G C Exh 59) In early February 1981, methane gas emissions migrating from the landfill were detected 14 Supra at fn 10 15 Supra at fn 10 16 Query, as in enclosed cabs of trucks, closed to avoid swirling clouds of dust in the residential area abutting the landfill, through flash- back explosions in cellarless houses found on inspection to contain excessive total hydrocarbons/methane venting after underground seepage and travel In an apparent at- tempt to cope with this situation, the Town of North Hempstead excavated to establish a clay barrier, drove piles into the landfill to serve as flues or chimneys to vent the gases approximately 150-160 feet over ground level—i e, only at the specific spots where so vented and not elsewhere, there being no connecting tunnels, pumps, or fans, and the flues or chimneys being relatively widely spaced apart, and beginning from the end of March 1981 engaged Respondent to provide two bulldozers and a backhoe, and after that also trucks, to excavate and dig trenches in order to "seal" the garbage-generated meth- ane Since much if not most of the garbage is brought into the landfill encased in plastic bags, the presence of toxic contents is not for practical purposes effectively as- certained inasmuch as those bags are almost wholly unin- spected, although Bartoldus concedes that toxic gases may be generated even by nontoxic refuse In addition to collecting tolls for incoming garbage, according to Bar- toldus, plans are in final stages also to sell, on a royalty basis to private enterprise, the methane gases vented out of the garbage deposited in the Port Washington landfill According to county official Fleisher," also testifying as Respondent's witness, complaints concerning swirling "dust conditions or gas conditions" emanating from the landfill have also been received from "people who live in the area" Fleisher further concedes that although the toxicity of this dust would be ascertainable through chemical analysis, no such test has been made—even though breathing in even a small quantity of toxic dust could be hazardous Although two different types of masks, as well as gog- gles and gloves, were provided by the Town of North Hempstead to its employees for use in the Port Washing- ton landfill, the town did not provide or make these available to any employees of Respondent Hendrickson working at the landfill Although, according to Bartol- dus, the town's drivers "prefer" not to use the masks, ac- cording to Skidmore they were indeed utilized by the town's tractor drivers in order to avoid dust inhalation at the landfill The Port Washington landfill is on the US Environmen- tal Protection Agency's Federal Register—published list of the worst and most "hazardous" 418 waste sites in the coun- try (C P Exh 9), 18 characterized by that Federal agency as "high priority candidates for [Federal] Fund-financed remedial action, enforcement action, and private-party cleanup" And around 1978, according to Bartoldus, con- tinued operation of that landfill was seemingly enjoined by a Federal court Further, according to Fleisher, in 1981 at the behest of Nassau County, North Hempstead was cited by the New York State Department of Envi- ronmental Conservation for violation of state landfill standards, with resulting fines levied as part of a consent order, in part this was for not providing or maintaining " Supra at fn 10 15 Fleisher expressed himself as in disagreement with this finding 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the required 6 inches of daily soil cover on top of the dumped garbage Needless to say, much of the foregoing, involving en- vironmental conditions and hazards or seeming hazards at and from the Port Washington landfill, were attended with considerable publicity, as manifested by a stream of news media issuances (e g, G C Exh 33), indicative of general public as well as official concern—to say nothing of concern to Respondent's employees working there, as will be shown b Respondent's job project at the Port Washington landfill Respondent's job project in the Port Washington land- fill commenced on March 27, 1981, with the Town of North Hempstead's rental of Respondent's trucks and other equipment, operated by Respondent's employees and with gas, oil, and maintenance paid for by Respond- ent, on a daily basis in accordance with the town's speci- fication of its needs for each next day At the time of the instant trial, this arrangement was still in effect Charles Brown was Respondent's labor foreman there and kept a running diary of activities there Charles Curd, now 42 years old, a truckdriver since 1964, first started to work on Respondent's Port Wash- ington landfill project in May or early June 1981 19 John William Kuebler, now 60 years old, another highly expe- rienced truckdriver of Respondent, who started with it in 1977, commenced working at the landfill at around the same time as Curd Respondent's work there consist- ed of burrowing roads through hugh sandpiles, and exca- vating a huge area to serve as an additional garbage dumpsite, with the excavated dirt, clay, and sand (exca- vated by Respondent's backhoe and loaded onto its trucks), hauled by Respondent's trucks 2° to the top of the existing garbage site, where it was redistributed over the terrain and also to cover garbage Curd and Kuebler, as credibly narrated by them, expe- rienced continuing respiratory and visibility problems— considered by them not only to be threatening to their health but hazardous to their driving and imperiling their lives—because of heavy dust and other conditions on Re- spondent's job project at the Port Washington landfill So did other drivers of Respondent But it is clear that it le According to the testimony of Curd and Kuebler, shortly after they were assigned through the Teamsters Local 282 labor 'shape" to Re spondent's Port Washington landfill job project, they individually com- plained unsuccessfully to Union Steward Gattus that their seniority rights were being violated by their assignment to this undesirable job more dis tant from their homes than other job projects Gattus concededly refused to show the '!shape" sheets When, according to Kuebler, Gattus told him the senionty rules had been changed, Kuebler made the accusation that he (Kuebler) and Curd were being deliberately isolated to the undesirable and more distant garbage dump assignment because of their leadership in FORE Nevertheless, thereafter neither Kuebler nor Curd at any time de dined to 'shape ' for the landfill project, but accepted all further assign- ments there, since 80-90 percent of the time they were offered none else where At the instant trial, Teamsters Local 282 appointed Steward Gattus was or professed to be unable to account for the fact that the names of Kuebler and Curd were crossed off certain seniority lists (e g, R Exh 23) coming out of Gattus office 2 ° There were five or so Henderson trucks usually utilized at the land fill jobsite in addition to the backhoe (crane), bulldozers, and a crane oiler, all engaged in moving the din, clay, and sand Respondent's job project foreman Brown operated none of this equipment was Curd and Kuebler who were the kingpins in trying to do something about remedying those work conditions, by seeking to have the roads watered down regularly and properly, and by seeking to obtain protective breath- ing masks Their testimony, credible in itself, is but- tressed not only by that of seemingly somewhat hostile Teamsters Local 282 officials Gattus and Bourgal, testi- fying at Respondent's behest, but also by Respondent's Port Washington landfill foreman Brown corroborated by his own job project diary Indeed, as will be shown, it was because of these complaints by Curd and Kuebler that they were discharged Credited testimony of Kuebler and others establishes that the roads over which they drove Respondent's trucks in the landfill, with their windows necessarily open, 21 in performance of Respondent's drivers' required duties, were regularly and characteristically highly dusty, impeding their vision, at times rendering their driving highly hazardous, and at times rendering their breathing difficult, making their eyes water, and causing them to wheeze, cough, and sputter, these conditions and effects being perhaps attenuated by the garbage and gar- bage remnants cluttering the roads and thrown up by the trucks traveling over them, and also by the gaseous by- products of the decaying garbage Kuebler and Curd continuously complained to Foreman Brown about these conditions, explaining not only their own discomfort but emphasizing the dangers inherent in the situation For ex- ample, Kuebler told Brown, "Charlie, we have to get water out here You can't work like this, it's dangerous," to which Brown responded, "The town doesn't want to put water down and Hendrickson doesn't want to put water down What the hell do you want from me 9" At the same time, Curd was similarly importuning Foreman Brown "every day" about the heavy dust and to do something "so we don't get sick we can't breathe, can't see, our eyes are getting all screwed up, and you know, it's dangerous, somebody is going to get hurt We can't breathe" As described by Curd, the constant stream of trucks was pulverizing years of garbage as well as the sand and pulverized concrete on the roads, caus- ing pervasive clouds of dust to rise above the level of the trucks and to enter the vans of the trucks along with the gaseous product of the rotting garbage But these com- plaints were largely unavailing or ineffective, meeting with such responses from Foreman Brown as that it was the nature of the job, that he could do nothing or was unwilling to do anything about it, and taking them to task for complaining However, as a result of these com- plaints, Respondent in June placed a removable watering tank, mounted on one of its trucks, into use, initially op- erated by Curd 22 Meanwhile, attenuating their concerns and apprehen- sions, Kuebler and Curd had been reading news articles in the public press (e g, G C Exh 33) about the Port Washington landfill and the hazardous conditions there 21 Because of the heat, as well as to assist visibility and for air Cf fn 16 supra 22 It will be recalled that Respondent did not do so until it arranged with the Town of North Hempstead that the latter would pay for it HENDRICKSON BROS , INC 447 In August 1981 Curd complained to the local (West- bury, Long Island) office of the U S Occupational Safety and Health Administration about conditions at Respondent's Port Washington landfill jobsite After he obtained and returned dust and methane gas readings, taken by him over a 2-month period, through measure- ment devices issued to him by that office, he was later informed that the office or agency lacked jurisdiction over towns Nevertheless, this demonstrates, at any rate, Curd's serious concern over the described working con- ditions at the jobsite Curd and Kuebler worked on Respondent's job project at the Port Washington landfill from June to De- cember 1981, and then again from the end of March or beginning of April 1982 until April 20, when they were discharged under circumstances to be described (sec II,C,1, infra) When they resumed work at the landfill at the beginning of April 1982, Respondent's watering tank was parked there, unmounted on any truck 23 and not in use On April 14, 1982, conditions on the jobsite were extremely dusty At that time, Respondent's trucks and equipment were engaged in excavating or draining a sump area of the garbage dump (see G C Exh 34) and hauling lime from the sump to the top of the landfill (id) On that day, Kuebler informed Steward Gattus that the dust was very bad, that he had almost been involved in an accident (at point A on G C Exh 34) with a gar- bage truck coming from the opposite direction, because of the limited visibility caused by the heavy dust and wet lime oozing all over the road, that the drivers were breathing in the germs-laden dust from the lime discard from the sump, and that the roads should be watered down When Steward Gattus was informed of this and asked to take it up with Foreman Brown, his response was that he was "too busy" On April 19, 1982—the day before Respondent's dis- charge of Kuebler and Curd (infra sec II,C,1)—again there was no watering whatsoever of the roads by Re- spondent, its watering tank still parked Idly and not in use, and only sparse if any watering by the town Kuebler's complaints to Foreman Brown were wholly unavailing, as were his and Curd's complaints to the Union, Union Business Agent Bourgal, for example, indi- cated that evening that he was "too busy" to come to the jobsite 24 Curd complained unavailingly to Steward Gattus that "we're dying over there, the dust is so hor- rendous," and also continued to complain that his senior- ity rights were being violated by his persisting assign- ment—under the undisclosed "shape" lists—to the land- fill, when Curd did so again on April 16, a few days before his discharge, Gattus hung up on him At no time in 1982 up to the date of the discharge of Curd and Kuebler on April 20 was Respondent's water- 23 In order to be used, the tank had to be lifted onto a truck by a backhoe crane 24 It will be recalled that Bourgal himself testified here, as Respond ent's witness, that at no time prior to the discharge of Curd and Kuebler on April 20, 1982, did he or Union Business Agent Gesualdi visit the job site ing tank utilized at the jobsite 2 5 Respondent's foreman Brown so testified as Respondent's witness North Hempstead Department of Public Works Senior Civil Engineer Bartoldus testified that the town has been utilizing two watering trucks since the inception of the Port Washington landfill in order to "keep the dust down," but only when deemed necessary As indicated above, Respondent's witness Garry, who operated Re- spondent's watering tank in 1981, conceded that the town's watering was in any event "absolutely not ade- quate—at any rate for Respondent's jobsite purposes and needs of its own employees—necessitating Respondent's additional, own watering, and, as has also been indicated, such watering by Respondent's equipment was author- ized by the town in 1981, at the town's expense Accord- ing to Bartoldus, utilization of Respondent Hendrickson's watering equipment (paid for by the town, when uti- lized) was essentially entrusted to Foreman Brown's dis- cretion, since concededly the town's own watering was inadequate to serve the needs of Respondent's employ- ees The descriptions by Curd and Kuebler of the dust and other conditions pervading Respondent's jobsite at the Port Washington landfill are amply substantiated by Re- spondent's own witnesses, including Foreman Brown and his job project diary entries Thus, Respondent's driver John Joseph Graziano, testifying as its witness, acknowl- edged that "visibility" on the job was "dusty, dirty, and muddy," and at times "very dusty," with the dust carried by the wind clearly visible and kicked up by trucks, going into the van of his truck and even over his clothes Union Steward Gattus, also testifying as Respondent's witness acknowledges that he received complaints from all of Respondent's drivers at its landfill project concern- ing the dust there According to Gattus, when his com- plaints to Foreman Brown got "nowhere," he brought about a meeting of himself backed by the Union's busi- ness agents, with Respondent's executive vice president Farley, at which all agreed that remedial action was re- quired, subsequently resulting in the utilization of a water truck by Respondent to water down the roads tra- versed by Respondent's truckdnvers, with conditions thereafter "less dusty" Gattus concedes that Curd again complained to him a few days before his April 20, 1982 discharge about the absence of watering equipment Ac- cording to Gattus, when he thereupon took this matter up with Foreman Brown, the latter indicated that the town official whose "OK" was necessary for that pur- pose was on vacation (It will be recalled that town offi- cial Bartoldus testified that utilization of Respondent's watering equipment was essentially a decision for Brown himself to make Executive Vice President Farley also testified that this decision was up to Brown ) Union Busi- ness Agent Bourgal, also testifying as Respondent's wit- ness, likewise acknowledges Respondent's drivers' con- tinuing complaints in 1981 as well as 1982 concerning the 25 I discredit possible intimations otherwise by Respondent's witness Garry (Gawryszwski), whose testimonial demeanor and evident partial' ty, as closely observed, impressed me adversely As indicated above, even Foreman Brown testified to the contrary, as is also shown by his jobsite diary (G C Exhs 51A and B) 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dust problems at the landfill, and testified that he charac- terized the town's water truck to Farley as an "old piece of [junk] broken down quite often" in seeking to have Farley remedy the situation 26 Respondent's Port Washington landfill job project Foreman Brown kept an official job project diary Testi- fying as respondent's witness, Brown swore the entries therein are accurate, contemporaneous accounts Ex- cerpts therefrom (G C Exhs 51A and B) are set forth in annexed "Appendix A" They clearly establish that Re- spondent was well aware of the unflagging efforts of Kuebler and Curd to obtain reasonable rectification of the unhealthful and dangerous working conditions at Re- spondent's Port Washington landfill jobsite, over what seems to have been the general resistance and opposition of Foreman Brown Concerning utilization of or requests for protective breathing masks by Respondent's drivers, under the con- ditions described, it will be recalled that although the Town of North Hempstead provided them for its own drivers, it did not do so for Respondent's employees As for the latter, credited proof establishes that they were not furnished by Respondent although repeatedly re- quested Thus, when, in July 1981, Kuebler asked Fore- man Brown for a protective mask, Brown's response was, "[The chauffeurs don't get masks you're a bunch of pnmadonnas He's got to eat some f—ing dust, this is construction you ain't getting a mask "27 Brown told Curd essentially the same thing around the same time When driver Graziano (testifying as Respond- ent's witness) asked Brown for a mask, Brown told him also, "If I issue you a mask I have to Issue every other driver a mask" Port Washington landfill project Fore- man Brown concedes that Kuebler and Curd asked him for masks, according to Brown, he declined to supply them unless necessary in an area where there was meth- ane gas from the garbage 28 He denies ever supplying any driver with a mask The following entry from Brown's job project diary (G C Exh 51A, p 141) for October 15, 1981, is of interest in this connection I also had to order more masks because the gas is so bad the operators are getting sick [Teamsters Local 282 truckdnver] A Giuffre went into my pick-up and decided he should have a mask also but I told him if he ever touches anything in my truck outside of the water cooler, I was gonna break both his arms and then have him fired for stealing There is no need to have any chauf 's using 28 Manifesting his seeming animosity toward Kuebler, Bourgal sponta neously interposed, however, that he undertook this not because of Mr Kuebler's request 27 This apparently notwithstanding the alleged fact according to Kuebler and Curd, that Brown had masks on hand in his pickup vehicle and had issued one to a bulldozer operator At least one dnver (Lent) wore a mask purchased by him personally 28 It will be recalled that the proof showed that methane gas is odor less as well as invisible, nor is there any indication that it would be effec- tively filtered out by any masks in Brown's possession However, It was reasonable for the employees to believe that masks could have been effec nye to protect them, at least in part, from the swirling dirt, dust, and col loidal debns Brown, of course, amply concedes that Sure, there's dust" these masks They are not even working in the area where the gas is coming out And, a week later, on October 22, 1981, Brown also wrote (id p 147) "[They think they dumped garbage past the liner This may be the reason we are getting such high gas readings in this area" But, even aside from the evidence here of gas seepages and the obvious fact that gaseous vapors as well as other noxious fumes are airborne and wafted with the winds, masks are of course utilized also to protect the nasobronchopulmonary system against flying dirt and heavy dust of precisely the nature here described as rampant on Respondent's job- site, perhaps particularly for its truckdnvers Port Washinton landfill project Foreman Brown con- cedes that because of Curd and Kuebler's constant com- plaints about dust conditions there, on occasions in 1981 he expressly asked that they be removed from the job "for the benefit of the Company" Relative to this, Brown's job project diary (G C Exhs 51(a) and (b)) is replete with critical comments by him that Kuebler and Curd were a disruptive influence since they were contin- ually complaining about the dust and Respondent's fail- ure to take care of that condition through adequate wa- tering The wide publicity attendant upon conditions at the Port Washington landfill has already been indicated Ad- ditionally, in April 1982, shortly before the discharge of Curd and Kuebler, a CBS television crew appeared at the landfill to televise conditions there, subsequently aired on the national television program known as "60 Minutes" During the April filming, Foreman Brown ap- proached Kuebler and inquired of him, "What, you're a f—ing tv star now?" When Kuebler reminded Brown that he (Kuebler—as also Curd) had appeared on an ear- lier (December 1978) "60 Minutes" telecast 29 concerning dissidents in Teamsters Local 282 because of the alleged corruption of its officials, Brown brusquely ordered him back to work It will be recalled that Respondent's exec- utive vice president Farley himself had seen fit personal- ly to admonish Kuebler concerning the latter's being photographed in a December 1981 Newsday (G C Exh 30) article that Respondent's president Milton Hendrick- son was "pissed off" at Kuebler over it Against this background—essential to informed under- standing of issues presented—we proceed to consider the circumstances under which Respondent discharged these three leaders of "FORE" C Respondent's Discharge of Charles Curd and John William Kuebler 1 Facts as found The unsuccessful attempts of Curd and Kuebler on April 19, 1982, to have the landfill roads over which they drove watered down to moderate the heavy dust, with Respondent's own watering tank parked idly and not in use, have been described, including their unavail- 28 Respondent s objection to an excerpt from this 1978 telecast (C P Exh 7), offered by Charging Party, on which decision was reserved at the trial, is sustained at the threshold as lacking proper foundation HENDRICKSON BROS , INC 449 ing attempts extending even into that night after work to solicit Teamsters Local 282 assistance in this endeavor Early the next morning, April 20, on the way to the landfill jobsite, Kuebler telephoned the Teamsters local's "hotline" and requested that Business Agent Gesualdi or Bourgal come to the jobsite because "the conditions were very bad" At the start of work (8 a m), Foreman Brown informed Kuebler, Curd, and the other Hendrick- son truckdnvers that they would be hauling muck, i e, wet clay from the backhoe to the pit area (G C Exh 34) and to "be very careful this pit is about 25 feet deep if you'll go over the back of it, there's clay down there and you'll never get the door open and you'll never get out" since "it's like quicksand and you'll never get out of the truck" Brown also instructed Curd to "leave the tailgate off of your truck" to enable him to "put the [Hendrickson] tank on you and wet the roads down in case if the town [watering] truck breaks down "30 Respondent's watering tank was still parked idly by the road The truckdnvers then proceeded with their assigned work Credited testimony establishes that, as described by Kuebler, that morning the road was "very, very dusty The road, the dust was like a fine powder, like a talcum powder A truck went by, it would whirl in the air and the visibility was limited this dust would be up in the air and the dust would be blowing in on you I had to keep [the truck win- dows] open, it was warm" When, later, Kuebler com- plained to Foreman Brown about this, indicating that he could not see from the dust in his eyes, Brown's response was, "What the hell do you want from me ? The town doesn't want to put water down" and "Hendrickson Brothers don't want to put water down it's up to the town" At this time, Kuebler saw a town truck parked in the area, as well as the Hendrickson watering tank still standing idle Around 11 a m, Kuebler, with eyes "severely irritated and watering," and with "trouble breathing" and "chest pains," narrowly avoided a "severe accident with a town truck He again reported this to Foreman Brown, again requesting that the roads be watered down "before one of us gets killed [W]e can't keep eating this dust This is dangerous and it's very unhealthy" Brown merely shrugged his shoul- ders Curd likewise complained to Foreman Brown, without avail, that [W]e needed water we had to have water we can't breathe over here, and we can't see noth- ing if you don't get us water, somebody is going to get hurt, or killed on the job These trucks are coming past here, and bathing us in dust, and we can't see, even when we're backing up, the [w]hole, when the truck passes you with dust, ev- erything disappears, you have to understand, it's like being in the middle of a cloud We can't even see when we're backing up, when another 30 According to Curd, the absence of the tailgate from his truck (as directed by Foreman Brown) added to the dusty road conditions, since the substance he was hauling spilled or oozed off the back of his truck, creating denser dust clouds, aggravated further by other trucks traveling over it truck passes by, we cannot see It's like a ship in a fog, you know Let's get some water down Nevertheless, Kuebler and Curd (as well as the other Hendrickson truckdnvers) continued working until their lunchtime, 12-12 30 p m, and resumed work at 12 30 p m Around 1 15 p m, with eyes burning and running from the dust, difficulty in breathing, and chest pains, Kuebler told this to Brown, and informed him that he had to see a doctor Brown's response was, "[W]hat the hell do you want from me? The Town of North Hemp- stead don't want to put water down, Hendrickson Bros don't want to put water down When that [town truck—parked idle since the day before] get fixed, you'll get water "31 When Kuebler indicated he was unable to continue working under these conditions, Brown told him to "do what you have to do and mark the time in your manifest 32 It is uncontroverted that Respondent has no rule pro- hibiting an employee from leaving work because of ill- ness or to seek medical attention 33 Kuebler thereupon sought out his carpool driver and explained to Curd that he was not feeling well and experiencing chest pains Curd indicated that he was experiencing similar difficul- ties Accordingly, Kuebler and Curd both parked their trucks Kuebler telephoned his physician to indicate he was coming to see him, and he also telephoned Team- sters Local 282 Business Agent Bourgal and explained the situation to him As Kuebler and Curd left the job- site, they indicated to Brown that their manifests were filled out, and Brown indicated his okay 34 Curd then drove Kuebler to the latter's physician in Great Neck, where Kuebler continued to manifest difficulty in breath- ing, with pains in his chest, as well as dust in his nose and throat and watering eyes His physician informed him that his breathing was impaired from dust and that his eyes were also severely irritated from that cause After irrigating and placing drops in Kuebler's eyes, his physician prescribed Bronkody1, 35 instructed him to 31 It will be recalled that Respondent s own watering truck operator Garry (testifying as its witness) testified that in any event the town s wa tenng equipment was absolutely not adequate to take care of Respond ent's needs on the roads Respondent s truckdnvers were working on Brown said nothing about utilizing Respondent's own watering equip ment parked idly by the road 32 According to Respondent's witness and bulldozer operator Pre lusky, who was present nearby, he heard Foreman Brown instruct Curd on the occasion in question to park the truck but to put on [your] man' fest the time that [you] park the truck" Foreman Brown s job diary (G C Exh 51(b), p 6, 11 5-8) indicates that he acquiesced in Kuebler and Curd's parking of their trucks and leaving under the described cir cumstances 33 Curd's credited testimony is uncontroverted that on at least one prior occasion (in 1979, because of an injury at work) he had left work early, as had other employees on other occasions, without discipline or penalty, and that Respondent has no work rule to the contrary 34 Both original manifests (G C Exhs 35 and 36) appear to have been taped together after they were torn up They each clearly specify the dangerous conditions why Kuebler and Curd were discontinuing work at 130pm 35 Bronkodyl (anhydrous theophylline), a prescription drug, is a bron chopulmonary muscle relaxant/vasodilator 37 PDR 701 (1983) Kuebler denies any past history of bronchopulmonary problems, breathing dis tress, or prior use of this drug 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "rest for a few days" and to return for another visit the next day (See also medical documents, G C Exhs 39 and 40, and C P Exh 5) At 6 55 p m April 20, Kuebler received a telegram from Respondent notifying him that he was fired (G C Exh 38) His, as well as Curd's, efforts the next day to obtain reinstatement proved unavailing notwithstanding their indications that they had sought and obtained medi- cal treatment necessitated by the described work condi- tions 36 Meanwhile, when Kuebler revisited his physi- cian that day (April 21), he was instructed to continue to "take it easy "37 There is no necessity to recount the testimony of Curd in detail regarding the already described events of April 20, since in essence it parallels that of Kuebler, summa- rized above, and I was essentially as favorably impressed by his testimonial demeanor as by that of Kuebler, whose testimony as delivered rang utterly true To Curd, complaining about the heavy dust on the unwatered roads on April 20, Foreman Brown responded in like vein as to Kuebler When Curd told him that morning (as he had earlier in the morning), "[W]e can't breathe we can't see Kuebler almost had an accident somebody is going to get hurt, or killed on the job It's like a ship in a fog," Foreman Brown responded, "What the f—k do you want from me Hen- drickson don't want to put the water down The town don't want to put the water down" By 1 15 p m, when Curd again remonstrated with Brown, "[T]he Job is dan- gerous, it's horrendous, I cannot see, I can't breathe I'm getting sick, and I'm going to go home" Curd described his throat as so dry that he had difficulty in breathing, his handkerchief was "completely black" when he blew his nose, his eyes were watering so that he could hardly see, and his face was caked with dust, as were his clothes At the same time, town trucks carrying and dropping sand as they moved from the sand pit to cover garbage at the top of the dump were crossing the path of Respondent's trucks, still further aggravating the condi- tion, with neither the roads being watered nor any pro- tective breathing device supplied Substantially also as in the case of Kuebler, when Curd told Foreman Brown, "I'm going to go home Charlie [Brown], I just don't feel good, I'm going to go, I'm sick," Brown replied, "All right go ahead Fill in your manifest with your time" (It is to be noted that Foreman Brown's own job 38 Although Respondent and the Union indicated willingness to submit the matter to arbitration, Kuebler and Curd declined for vanous reasons, including their mistrust of Teamsters Local 282, and their apprehension over the outcome of an arbitration before the arbitrator jointly designated by Respondent and Teamsters Local 282, particularly in view of the ad verse experience of truckdnver Smith whose discharge is likewise here at issue (infra, sec II,D), which they as well as Smith viewed with suspi cion It is conceded by Respondent that at no time did it move to compel arbitration 37 Kuebler visited his physician a total of five times in connection with these conditions No competent evidence was introduced here to contro vert Kuebler's physician's diagnosis or treatment His physician's medical certificate in connection with Kuebler's unemployment insurance applica non (G C Exh 39), as well as his workers' compensation claim (G C Exh 40) are in evidence As is well known, unemployment Insurance claims are not payable where an employee is discharged for cause attnb utable to the employee There is no indication here that Kuebler s appli cations were opposed by Respondent diary, G C Exh 51(b), p 6 II 5-8 bears this out) Insofar as Curd is concerned, he likewise repaired to his own physician on April 20, who disagnosed him as having contracted a "respiratory infection" from "expos[ure] to fumes and dust," prescribed an antibiotic as well as eye- wash, and directed him to remain away from work for a few days and to stay away from dust and fumes Curd's physician's prescription (G C Exh 44) as well as his cer- tificate (G C Exh 45) are likewise in evidence At no time since their discharge have Kuebler or Curd been reinstated, reemployed, or "shaped" for further work assignment with Respondent And at no time prior to the discharges had Kuebler 38 or Curd received any reprimand, censure, admonition, or criticism relative to their work performance Called as Respondent's witness to testify concerning the described events of April 20, its driver John Joseph Graziano, son of Respondent's retired asphalt foreman Anthony Graziano (also a witness on Respondent's behalf), testified that he, too, around 1 30 or 1 45 p m on that day asked Foreman Brown to "do something about the dust"—according to Graziano, it was not the first time he had made such a request, and that when Brown explained that the town watering truck was broken down, and Graziano thereupon asked him, "What about our own truck, that's what we got it here for," Brown indicated to him that it would take too long to do that and meanwhile he would have Respondent's five trucks "sit[ting] right there" According to Graziano, the town watering truck arrived at the landfill to water around 2 30 pm, ie, perhaps about an hour after Kuebler and Curd had left Graziano also opined that gas was escap- ing from the garbage at the same time Even Respond- ent's witness and watering truck operator Garry, i e, at such times as he did so, acknowledged that dust condi- tions at the jobsite were sometimes bad—crazy, particu- larly in the absence of appropriate watering, and that even with watering the dust returned in a half hour to such an extent as to impair visibility According to Union Steward Gattus (testifying as Respondent's wit- ness), in describing the Jobsite conditions on April 20, Kuebler characterized them by the word "dangerous" Testifying as Respondent's witness, Teamsters Local 282 Business Agent Bourgal swore that when Kuebler called him in the early afternoon of April 20 concerning the intolerable dust making it impossible for him and Curd to continue working on the jobsite under those conditions, Bourgal—the union representative of these employees—advised him that "you don't have a right to take a concerted action and that they should have "hung around in the area" This "respresentative" also insisted under oath that he was unaware prior to the discharge of these two members of his union on April 20, 1982, that there was any controversy or safety condition problem at the Port Washington landfill jobsite He also testified that since his incumbency as Teamsters Local 282 busi- ness agent (about 4-1/2 years), only four or five drivers have been discharged, three of which total number were 38 with the possible sole exception, in Kuebler's case, involving the picket line noncrossing incident referred to above HENDRICKSON BROS , INC 451 the three employees (Curd, Kuebler, and Smith—the dis- sident FORE group leaders 39) here in question Port Washington landfill project Foreman Brown con- cedes that "there was a lot of dust after lunch 12 to 12 30," 4° as well as possibly earlier also on April 20 He concedes—in agreement with Kuebler and Curd and others—that although the town watering truck was inoperative or not in use, Respondent's own watering truck was also not utilized although available for use Brown claims that earlier that morning he had heard the town watering truck—which, it will be recalled, Team- sters Local 282 Business Agent Bourgal had described to Farley as early as 1981 as an "old piece of [junk] broken down quite often"—"sounded like it was going to blow up" (Foreman Brown's description), and that it had again broken down, but that it would be repaired (It had not been, even by the end of that day ) However, under these circumstances he did nothing, despite the heavy dust conditions, to utilize Respondent's own watering device, which was parked idly by the road Asked why, by Curd and Kuebler, Brown testified that he told them it was "too far away" and indicated that he would have to idle and take out of "production" one or more of Re- spondent's trucks and other equipment (i e, a backhoe to lift the watering tank onto one of the trucks) to do that Brown acknowledges that when Kuebler and Curd de- scribed their difficulties to him and their inability to carry on under the circumstances, he told them, "[If you] want to go home, just sign what time [you] parked the trucks," and that they did so At no time, as he con- cedes, did Brown inform Curd or Kuebler prior to their leaving that he expected a town watering truck soon or at all Brown also testified that as of April 20, 1982, Re- spondent's own watering device had not been utilized at a" since 1981 Executive Vice President Farley testified that it was he who made the decision to discharge Kuebler and Curd after he was told by Foreman Brown on the after- noon of April 20 that after "bitching and moaning and complaining that there was dust, and that there should be a water truck, and that they felt that the job condi- tions were not to their liking," they filled out their mani- fests, and "left the job without authorization" Farley ac- knowledges that Brown also informed him that the town watering truck had "broke down", but he denies that Brown informed him that truckdriver Graziano had also complained about the dust Nor is there any indication that the nonutilization of Respondent's own watering truck was mentioned Farley, however, immediately issued instructions to terminate Kuebler and Curd Ac- cording to Farley, they were terminated because "they left the job without authorization and jeopardize[d] not only our contract with the town, but reduc [ed] the production for the day", and he regards the reasons 39 Although Bourgal acknowledged knowledge of FORE and receipt of its publications, he incredibly denied awareness that one of its objec- tives was to expose corruption on the part of the leadership of Teamsters Local 282 40 About a half hour after so testifying, Brown professed to be unable to recall so testifying (Cf Tr 2829-30 and 2812) Aberrations of this type were not uncharacteristic of this witness' testimony, leading me to regard his testimony with wariness that Kuebler and Curd left the jobsite as "unacceptable" to his company However, he acknowledges that if a driver informs a foreman that he is experiencing distress and requires medical assistance, he "would have reason to leave" He describes working conditions at the landfill project as "not all peaches and cream" He acknowl- edges that he has refused to take Kuebler and Curd back or even to talk to them after their discharge, it being his policy "[not] to talk to any employees, no matter who they were" When the union business agents told Farley, after these employees' discharges, that they had left be- cause of intolerable dust conditions, Farley testified that he indicated that Kuebler and Curd should have re- mained at the job Farley concedes that Foreman Brown had the authority to excuse drivers from their work at the jobsite At no time did Respondent provide a physi- cian or occupational safety engineer at or in connection with its Port Washington landfill job project, nor did Re- spondent at any time suggest or request a medical exami- nation of Kuebler or Curd, nor did Respondent offer or agree to reinstate them after it learned they had gone for and obtained medical attention on leaving the jobsite on April 20 Union Steward Gattus, who explained it was indicated to him by Respondent that its reluctance to place its own watering tank in operation at the jobsite originally was because "Nobody would pick up the price for it," describes Farley as "wild" over the episode and as unyielding in his refusal to take Kuebler or Curd back "under any circumstances," while at the same time will- ing to go to "arbitration" before the Company and Teamsters Local 282 jointly designated arbitrator 41 Questioned at the trial about Farley's discharge of these employees without discussion with or even notifying the union stewards, Gattus' response was, "you gotta know Joe Farley, he does things on the spur of the moment" 2 Analysis and resolution The lengthy background history to Respondent's dis- charges of its two long term, experienced truckdrivers Kuebler and Curd has been provided here to show the events and their activities leading up to those discharges As has been shown, Kuebler and Curd were the leaders of the dissident group in Teamsters Local 282 known as FORE, devoted to rooting out alleged corruption in that union and to seeking enforcement for the benefit of Re- spondent's truckdrivers/Teamsters Local 282 mandatory members, of the subsisting collective agreements In ad- dition thereto, as also shown above, Kuebler and Curd were leaders in other protected concerted activities, in- cluding specifically continuing attempts to ameliorate working conditions at Respondent's Port Washington landfill jobsite which they (and other truckdrivers) with ample justification regarded as intolerable to their health and well-being, while readily rectifiable—namely the heavy dust and gaseous conditions there, correctable through appropriate watering down of the roads they used and through supply of protective masks Far from endearing themselves to Respondent through these ac- tivities, they evoked only resentment, hostility, opposi- 4i See fn 36 supra 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, criticism, ridicule, and even countermeasures, even- tually resulting in their discharge under the circum- stances shown It is not an answer to the discharged employees' de- sires to engage in such concerted activities, which they had the right to do under the Act, nor to the Federal Government's concerns in enforcement of the Act, to take the position, as Respondent does, that if the employ- ees were unhappy over their working conditions they could or should seek jobs elsewhere, or that other em- ployees tolerated those conditions better, or even alto- gether Under NLRB v Washington Aluminum Co, 270 U S 9 (1962), and its long progeny, it is clear that employees may not, under the Act, be discharged for complaining or protesting about unsafe, unhealthy, or intolerable working conditions, or even for leaving their jobsites without permission because of those conditions Washing- ton Aluminum involved a worksite (unheated machine shop) which was considered too cold by the seven em- ployees who walked out, in a context (as here) of con- tinuing past complaints of the same nature 42 The Su- preme Court there stated (370 U S at 17) in language singularly applicable here [C]oncerted activities by employees for the purpose of trying to protect themselves from working condi- tions as uncomfortable as the testimony and Board findings showed them to be in this case are unques- tionably activities to correct conditions which modern labor-management legislation treats as too bad to have to be tolerated in a humane and civil- ized society like ours And, as further stated by the Court, 370 U S at 16 The fact that the company was already making every effort to repair the furnace and bring heat into the shop that morning does not change the nature of the controversy that caused the walkout A myriad of other cases since then have applied and reapplied, time and again, the Washington Aluminum principle, one of the most basic in American labor law43 42 Thus, the case is in any event unlike NLRB v Hudson T Marsden, 701 F 2d 238 (2d Or 1983), wherein the court regarded an employees walkout in what may have been merely a slight drizzle as merely an ad hoc reaction to one day's weather" (id at 243) 43 Cf , e g , Tamara Foods, 258 NLRB 1307 (1981), enfd 692 F 2d 1171 (8th Cir 1982), cert denied 103 S Ct 2089 (1983) (occasional fumes from leaking ammonia in frozen food refngystem), NLRB v Pace Motor Lines, 703 F 2d 28 (2d Or 1983), Richmond Tank Car Ca, 264 NLRB 174 (1982) (runaway freight cars and toxic fumes), McLean Trucking Co v NLRB, 689 F 2d 605 (6th Cir 1982), Huron Dressed Beef, 252 NLRB 151, 153 (1980), Hartz Mountain Corp, 228 NLRB 492, 561 (1977), enfd 593 F 2d 1155, 1166 (DC Or 1978), Combustion Engineering, 224 NLRB 542 (1976), Barkus Bakery, 214 NLRB 478, 480-481 (1974), enfd 517 F 2d 1397 (3d Ctr 1975), Union Electric Ca, 196 NLRB 830, 832-834 (1972), Gladstone Food Products Co, 192 NLRB 267 (1971) (short "break period desired because of excessive heat), Morrison Knudsen Co, 173 NLRB 56, 59 (1968) enfd 418 F 2d 203 (9th Or 1969), Knight Morley Corp, 116 NLRB 140 (1956), enfd 251 F 2d 753 (6th Cir 1957), cert denied 357 U S 927 (1958) (insufficient suction provided by blower system for carry mg off dust, debris, and abrasives from polishing and buffing room, re- sulting in eye, ear, throat irritation to employees, under hot and humid conditions), NLRB v Southern Silk Mills, 209 F 2d 155 (6th Cir 1953), cert denied 347 U S 976 (1954) (plant too warm) and which is squarely applicable here Under these gov- erning cases, it is entirely clear that Respondent's dis- charge of Kuebler and Curd for complaining and leaving Respondent's Port Washington landfill project jobsite on April 20, 1982, under the circumstances described, was in violation of Section 8(a)(1) of the Act and I so find and determine It may be pointed out additionally that the concerns of the employees here were in no sense fanciful, capricious, or vexatious, or maliciously or mischieviously intended or expressed Their concerns were real and honest and, as shown above, of longstanding Since Respondent itself had as early as 1981 recognized the need for its own wa- tering truck to control the dust conditions on its jobsite, to supplement that or those of the Town of North Hempstead, the absence of any watering for some hours on April 20, including on the part of Respondent whose watering equipment stood idle and unutilized, obviously meant the absence of any measure for controlling Re- spondent's drivers' exposure to the dust (and other accu- mulated airborne debris) at that time, which, according to credited testimony, was at least sufficient to create ex- treme discomfort as manifested by the physical symp- toms requiring Kuebler and Curd to obtain medical as- sistance Under these circumstances, it was violative of the Act for Respondent to discharge those two employ- ees for acting in concert to attempt to remedy the de- scribed working conditions Respondent could, since it did not provide protective breathing masks or a watering truck that morning, have suspended work or at the very least have permitted the two disabled employees to return to work when they were able, instead of discharg- ing them out of hand and, as Foley indicated, expecting and requiring them to continue to work while literally choking and unable to continue to do so With regard to Respondent's contention that the dust conditions on April 20 were the result of the temporary breakdown of the town's watering truck, it may be said at the outset that even that would not have Justified the employees' discharge Would Respondent have expected them to continue to work while choking or sputtering into insensibility, if not worse, simply because the town's watering truck was broken down? What of Respondent's own watering truck, which was not broken down but stood idly by? Furthermore, as Respondent's own wit- ness, its watering truck operator Garry, testified, the town's watering truck was in any event inadequate for Respondent's needs—indeed, it was for this very reason that the Town of North Hempstead had authorized Re- spondent to utilize one of Respondent's own trucks, at the town's expense, to meet this need Since, therefore, even if the town watering truck had been working and in use, it would have been inadequate to take care of Re- spondent's needs, Respondent's explanation that it did not utilize its own watering truck because it was await- ing repair of the town's watering truck does not hold water, so to speak, but fails to "stand under scrutiny" 44 and falls flat 44 NLRB v Dant (I Russell Ltd, 207 F 2d 165, 167 (9th Cir 1953) HENDRICKSON BROS , INC 453 Nor is it of consequence that, if it be the fact, drivers of vehicles other than Respondent's failed to complain or cease working because of conditions at the landfill, since the employees here did so in good faith and with an hon- estly and reasonably founded belief that they had to do so—indeed, they proceeded at once for medical help In this connection, it should also be borne in mind that unlike other vehicles visiting the landfill briefly to drop their loads of garbage Respondent's drivers worked there continuously for a full day's shift and, in the case of Curd and Kuebler (who, for practical purposes, received no other assignments on the closely guarded and unin- spectable shape lists), day after day It is therefore not surprising that, under these circumstances, they—unlike transient unloaders or drivers traversing the landfill spo- radically and briefly—could and would present the dis- tressing and incapacitating nasopharyngeal/respiratory/- bronchopulmonary, as well as ocular, subjective symp- toms and objective signs observed, diagnosed, and treat- ed by their respective physicians Thus, even beyond the illegality of their discharge under Washington Aluminum and its progeny, these two employees were singled out inconsistently with Respondent's own policy and prac- tice for discharge for job-incurred illness Although, as amply established, the two discharged employees' complaints were entirely legitimate, indeed even medically objectified, even had they not been so clearly established, their discharge for complaining and walking off the job under the described conditions would still have violated the Act under Washington Aluminum While it is understandable, from Respondent's point of view, that these employees were a burr in Respondent's side because of their leadership in protected concerted activities, employees may not be discharged for "exces- sive" exercise of their rights under the Act Employees who are "dissident and annoying" because of their asser- tion of statutory rights not believed in or accepted by their employer, do not for that reason become vulnerable to discharge 46 It is no defense to violation of the Act that employees are too diligent in assertion of their rights under it Respondent's contention that these employees' leaving their job to seek medical attention under the described circumstances constituted an unlawful strike under the subsisting collective agreement is without merit Section 502 of the Act expressly provides to the contrary that leaving work under such circumstances shall not be deemed a strike This statutory protection is neither overruled nor overcome by a no-strike provision in a collective agreement 46 It may be added that under the circumstances as described and found, it was entirely rea- sonable for Kuebler and Curd to believe that Foreman Brown was acquiescing in and authorizing them to leave work early in view of the conditions described, as sub- 45 Duo Bed Corp v NLRB, 327 F 2d 850, 851 (10th Cir 1964), cert denied 380 U S 912 (1965) 46 "The effect of this section [502] is to create an exception to a no stnke obligation in a collective bargaining agreement' Whirlpool Corp v Marshall, 445 U S 1, 18 fn 29 (1980) See also Gateway Coal Co v Mine Workers, 414 US 368, 385 (1974), NLRB v Knight Morley Corp, 251 F 2d 753, 759 (6th Cir 1957), cert denied 357 U S 927 (1958) stantiated by his own work diary entry (supra, G C Exh 51(b), p 6, 11 5-8) In view of the determination that Respondent's dis- charge of Curd and Kuebler was in violation of Section 8(a)(1) of the Act under Washington Aluminum and its progeny, it is unessential to determine whether those em- ployees' leadership and activism in FORE also played a role in those discharges, although the discharge of these two leaders of FORE, atop that of still another leader of FORE, namely, Smith (infra III,D), may be viewed as a not unremarkable coincidence meriting explanation not here supplied 47 It is at any rate amply clear that since their exercise of their rights under the Act, in protesting and leaving Respondent's jobsite under the conditions described, provides no basis or justification for their dis- charge, and Respondent has failed through preponderat- ing (or indeed any substantial credible) evidence to estab- lish other believable basis or justification for those dis- charges," Respondent's discharges of Kuebler and Curd on April 20, 1982, were in violation of Section 8(a)(1) of the Act, and I so find and determine 49 D Respondent's Discharge of Steven K Smith It is further alleged that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discharged employee Steven Smith on November 14, 1980, because he en- gaged in concerted activities protected under the Act, in- cluding his activism in FORE 1 Facts as found Steven K Smith started working for Respondent as a truckdriver in 1970, since which time he has also been a mandatory member of Teamsters Local 282 He has been one of the leaders of FORE and also an observer or "checker" for the unsuccessful FORE slate in the Local 282 elections of 1978 and 1981 In short, to Respondent's knowledge, Smith has been a prime mover in the attempt to oust the leadership of Teamsters Local 282, to bring about effective enforcement of the collective agreement and bargaining relationship with Respondent, and to pro- tect employees' rights under the Act through proper ac- tivities of a union truly and honestly representing the in- terests of the employees And credited proof shows that 47 As indicated above, Respondent, including Executive Vice Pres' dent Farley, were well aware of those activities The recent conviction in Federal court of the leadership of Teamsters Local 282 (notwithstanding Respondent s president's testimony on its behalf) would appear to lend substance to the conclusion that at least some of the matters over which the discharged employees here, as leaders of FORE, were continuing to concern themselves, were not fanciful nor purely vexatiously motivated 49 Cf NLRB v Transportation Management Carp, 462 U S 393 (1983) 49 Respondent's contention that the Board should defer Kuebler and Curd s discharges to arbitration, under Dubo Mfg Carp, 142 NLRB 431 (1963), is answered at the threshold by the fact that the parties have not elected to so proceed, the employees and the Union having withdrawn any initial indication that they would or might do ■ so, and Respondent having admittedly not moved to compel it or otherwise pressed therefor Cf, , e g, Youngstown Sheet & Tube Ca, 235 NLRB 572, 575 (1978) Fur- thermore, Teamsters Local 282 has filed no charges here on behalf of its members here, it being—as shown above—seemingly contrary to the policies of its current hierarchy to resort to the Board's processes in yin dication of the statutory protections of the Act Cf Ball Carp, 257 NLRB 971, 972 (1981) Finally, the issue has now been fully litigated, and herein resolved, before the Board in the instant proceeding 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had been expressly warned, including by Respond- ent's own foremen, to desist from such activity since it was disafavored by and would land him in trouble with Respondent 5° Further, as in the cases of Kuebler and Curd, supra, the record is replete with continuing activi- ties by Smith in pursuance of rights protected by the Act and instances of alleged indifference by Teamsters Local 282 to guard those rights for him and other drivers of Respondent Smith was precipitately discharged by Respondent on November 18, 1980, without even being given an oppor- tunity to be heard or to explain what appears to be the true fact, as will be shown, that he was being improperly discharged, at least under a misapprehension by Re- spondent of the facts The issue here is what were the true reasons for Smith's precipitate discharge after some 10 years of essentially satisfactory" service Resolution of this issue, in the frame of reference of Respondent's knowledge of Smith's continuously strong activism against the Teamsters Local 282 hierarchy 52 and his leadership in "FORE," involves, in part, a description of Respondent's prevailing practices concerning its drivers' manifests and the working times noted thereon as con- trasted to the precise times actually worked, and also the events on November 13 and 14, 1980—the day before and the day when Smith was discharged Both of these will now be addressed a Respondent's practices pertaining to drivers' manifests and actual quitting times Respondent's drivers are required to submit manifests at the end of each workday Those manifests supposedly designate, ostensibly for billing purposes, the hours worked by and the quitting time of the driver submitting the manifest-1 e , barring overtime, in the case of as- phalt contract drivers from 8 a m to 5 p m, and in the cases of heavy construction contract drivers from 8 a m to 4 30 p m 53 In actuality, however, because of the suc- cessful attempts seemingly spearheaded by Smith, Curd, and Kuebler, as described above (sec II,B), to bring about a single instead of a bifurcated pay system for as- phalt contract drivers and for heavy construction con- tract drivers, and also because of seeming looseness in re- porting practices—acquiesced in by management—with regard to leaving somewhat earlier, if the day's work 5° Although Respondent's supervisors/foremen/employees Anthony Graziano, Frederick (Rick) Norton, Laverne (Jack) Norton, Farwell, and DaSilva, except for Graziano (now retired) still in Respondent's employ and testifying as its witnesses, denied or for the most part professed lack of recall" of such warnings, on comparative testimonial demeanor as closely observed by me at the trial, I have no hesitation in prefernng and crediting Smith's better memory " Although at the trial Executive Vice President Farley attempted to dredge up some alleged tardiness on the part of Smith in preceding years, for which he sent Smith a letter (G C Exh 5)—conceding he had sent no such letter to other tardy dnvers—it is clear that Smith was not dis- charged for this reason As a matter of fact a grievance panel later re solved the alleged "tardiness' in Smith's favor and he was subsequently paid for the time in question (G C Exh 7) 52 Examples of the continued publicity and notoriety of the persisting complaints, charges, and proceedings against that hierarchy of Teamsters Local 282 are amply reflected in exhibits in the record, referred to supra, sec II,B,2,3,4, and 5 53 See supra, sec III,13,1 fn 5 passim was completed or no further work was required late in the afternoon (and also to allow for time to clean the trucks and to drive them to the particular location site where they were stabled), but nevertheless reporting the technical (but thus rarely if ever observed) quitting time (i e, 4 30 or 5 p m), it was an entirely usual and manage- ment-acquiesced-in practice for drivers to leave before the technical "end" of the workday, but nevertheless to report the technical end of the workday on the manifest There is abundant proof in the record 54 as to this, and I credit that proof Thus, for example, Foreman Brown testified that it was normal practice for Respondent's drivers to leave around 4 10 p m although paid for the full day (to 5 p m) And Executive Vice President Farley conceded at the trial that Smith was not discharged for im- properly filling out manifests 55 It is within the context of these practices and these concessions by Brown and Farley that I believe it to be necessary as well as fair to evaluate the events of November 13-14 resulting in Smith's discharge, which will now be done b Events of November 13-14, 1980 At 8 a m on November 13, 1980, Smith loaded up with asphalt at the Rason asphalt pit in Farmingdale, Long Island (Broad Hollow), destined for Respondent's Islip "Joint Venture" job project, where he unloaded it Thereafter until around 3 p m he worked at dumping as- phalt on driveway aprons at Respondent's Islip nearby sewer job At that time (about 3 p m), Foreman George Greenwood at the Islip sewer job instructed him to dump the remaining asphalt in Respondent's nearby Islip "Joint Venture" or "Nassau" job debris yard, where he was to see Foreman John Tnolo Complying with Fore- man Greenwood's instructions, Smith arrived at Re- spondent's Islip "Joint Venture" or "Nassau" jobsite shortly thereafter, dumped his excess asphalt and cleaned up his truck, under the observation of Tnolo, who mean- while left without saying anything to Smith Around 3 30, John F Hendrickson (son of Respondent's principal John C Hendrickson and cousin of its chief principal Milton Hendrickson), job manager of Respondent's Islip (Nassau) Joint Venture job project, came out of his trail- er and asked Smith whether he had seen driver Peterson Smith replied that Peterson had left after dropping off a load of topsoil When Hendrickson indicated he needed Peterson for a run, Smith volunteered to take it since he was not doing anything Hendrickson declined Smith's offer, stating that he had wanted Peterson to do it Since it was then around 3 30 p m, Smith said to Hendrickson 54 See, e g, testimony of the General Counsel's witnesses Smith, Kuebler, Curd, Trott, and Brown, and Respondent s witnesses Farley, Bourgal, and Gattus Gattus testified (with support in other testimony) that it was only after Smith's discharge that the time reporting system on the manifests was purportedly tightened up (G C Exh 26) by Farley—a "tightening up" even then honored in the breach rather than in the ob servance and soon thereafter rescinded or abandoned Executive Vice President Farley conceded there was no clock in/out or strict timekeep- ing system for Respondent s drivers, although there were occasional su- pervisory spotchecks 55 Tr 2105-2106 This is in seeming contrast to Farley s position and statement before the arbitrator in connection with Smith s discharge (infra) HENDRICKSON BROS , INC 455 that if there was nothing further for him to do, in view of the hour he would return his truck 56 to the Broad Hollow (i e, Farmingdale) Rason asphalt pit (where he had obtained it) Acquiescing, Hendrickson said, "Okay good night" In no way was any indication given to Smith that there was anything left for him to do at that hour or that he should not return the asphalt truck to Farmingdale, where he had obtained it As of this time, Smith had worked for Respondent for 10 years and was thoroughly familar with its procedures The timing here involved was in no way unusual—it was just like any other day When Smith arrived at the Broad Hollow (Farmingdale) asphalt pit around 4 p m, he fueled up the truck, filled out his manifest, and then (around 4 15 p m), still in accordance with Respondent's standing op- erating procedures, awaited the shape for the next day, November 14, in the presence of various other drivers including the missing Peterson, leaving the yard for home around 4 35 p m, the usual time, with four or five other drivers—all as usual Smith had received the same shape or job assignment for the next day, November 14 On the next day, November 14, Smith's supervisor as- phalt Foreman Greenwood asked him where he had been on the previous afternoon Smith told him Green- wood then said that Foreman Tnolo of Islip (Joint Ven- ture project) had told Greenwood that Smith never showed up there Smith replied that he had indeed been there and that Tnolo knew it Smith said he would look for Tnolo to straighten this out When Smith later did so and in the presence of Greenwood reminded Tnolo that Tnolo himself had seen Smith at the Islip jobsite the pre- vious afternoon, Tnolo did not deny it but this time indi- cated that Smith "should have waited for the payloader or somebody to give you orders," instead of returning the asphalt truck to the Farmingdale asphalt pit At no time had Tnolo or'Hendrickson told Smith anything like that, or indeed anything at all, the previous afternoon With the situation or problem (if any, but seemingly none) thus straightened out, at the end of the day (No- vember 14) Foreman Greenwood again instructed Smith to dump his excess asphalt at Islip (Nassau yard) as on the previous day (November 13), and he did so This time, however, Islip job Superintendent Richard Lutjen (who did not testify here) directed Smith to report to timekeeper Frank Farwell, who without further ado handed Smith a paycheck (this was not a regular payday) and a termination slip While Smith was telling this to Steward Gattus, driver Trott pulled up and asked what was going on When Smith told Trott he had just been fired, Trott informed Smith that Trott had just come from Broad Hollow (Farmingdale), where he had personally overheard Rason Asphalt Plant Superintend- ent Mallin tell weighmaster Matthews that "[T]hey were going to get [Steve Smith]," and that—as a precaution- ary measure in order to assure accuracy—Trott had committed that to writing at once, and Trott thereupon showed it to Smith, then immediately adding to it a por- 56 It was not actually Smith s usual 10 ton truck no 534, which could not be started, but truck no 511 non underneath a line which he drew 5 7 Trott's contem- poraneous res gestae statement (G C Exh 11), borne out by Trott's testimony here, corroborative of Smith's ver- sion, is as follows On Nov 14 at 1 40 I was making a phone call at the pay phone at BH [Broad Hollow] in the scale house I over heard Dick & Gene Mailin discussing what time S Smith parked his truck on Nov 13 ( I parked with him at 4 05) Gene said Skip (A Hen- drickson Jr) was suppose to keep account of his time Dick said Joe called & wanted to know what time he parked Dick said he was only aware of trucks that passed through scale upon quitting time, and that Smith was in a group with Kornschild, Pe- terson, Cicotta looking at the shape He said that if anyone wanted to know what time Smith parked they should ask him To this Gene said they wanted (to nail him)' The conversation ended here when Gene asked Dick whose truck was parked outside Dick said "It's Trott He is making a phone call" That is when I made my exit (Drivers side door on 527 has no HB Decal ) (Gattus verified this ) I saw Gattus & Smith at T A 3 00 Nov 14 talking Smith showed me his termination notice I then showed Paul and him the above note to which they were both surprised No one knew of the term till Gattus gave Smith the check Smith then parked his truck He has never been reinstat- ed or received any further work from Respondent A termination notification dated the same day (November 14) and addressed to Steward Gattus and signed by Ex- ecutive Vice President Farley states that Smith was dis- charged for "failure to follow direct orders given to him by our supervisory personnel on November 13, 1980 at the Islip Sewer Job" (G C Exh 12) When Smith, in a futile attempt to regain his job, sought out Farley to ex- plain to him what had happened, Farley's only response was that "I don't talk to employees" Subsequently, Union Business Agent Gesualdi indicated to Smith that he could or might have his job back without backpay if he apologized, but was unable to explain what for, nor did Farley ever say any such thing Convinced that he had been railroaded, and nettled be- cause he had not even been given an opportunity to ex- plain the facts, Smith equipped himself with a concealed recording device and engaged Foreman Greenwood in a discussion concerning the events of November 13 A transcript of that tape recording and a supplementary written statement signed by Foreman Greenwood are in evidence here (G C Exhs 13C and 14) The statement of Foreman Greenwood, an utterly credible witness who 57 Called as Respondent's witness, Superintendent Mallin, who was ap pointed to that job by Respondent's principal and president Milton Hen dnckson, testified that he was unable to remember this Respondent's wit ness Matthews, also a longtime retainer, likewise professed inability to recall the conversation On the basis of comparative testimonial demeanor observations I have no hesitancy in preferring the better memory of Trott, an unusually impressive witness 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified at Respondent's call, is as follows (G.C. Exh. 14): On 11/14/80 I, George Greenwood, overheard John Triolo talking to Steven Smith in which he admitted he did see Steven Smith in the Islip yard on 11/13/80 at 3:05 which was the opposite of what he said to me George Greenwood, on 11/13/80 at 4:00. As the conversation continued John Triolo then said he not only saw Steven Smith in the yard but told me to stay and wait for the payloader. As Steve Smith denied he had spoke to him John Tnolo then said "all right so I didn't talk to you but you should have stayed in the yard anyway." This I swear to be True. [signed] George Greenwood Signed 12/2/80 at 9:30 AM Testifying at the trial as Respondent's witness, Islip sewer job foreman Greenwood, who has been in Re- spondent's employ for over 30 years, 58 swore that after he had instructed Smith on the afternoon of November 13 to report to Triolo when he was finished at Islip, around 4 p.m. Foreman Triolo showed up at the Islip sewer job and asked Foreman Greenwood, "Where is the truck you were using"—meaning the truck driven by Smith. Greenwood replied that he had sent it to the Islip Joint Venture project where Triolo was foreman. Appar- ently Greenwood made it his business to pass by the Islip Joint Venture yard—about a 5-minute drive from Green- wood's Islip sewer project—and he personally observed Smith there, cleaning up his truck; however, Greenwood did not see Tnolo there. On the next day, November 14 (still according to Foreman Greenwood), after he had asked and Smith had told him he had gone to the Joint Venture project in accordance with Greenwood's in- structions, later when Smith queried Triolo, in Green- wood's presence, "What's this about my not being [at your yard] yesterday? You saw me there," Triolo agreed, stating, "Yes, but when I came back I didn't see you." Foreman Triolo, testifying as Respondent's witness, acknowledges here that he did in fact see Smith unload- ing cold asphalt at Triolo's jobsite yard, but claims that when Triolo left the yard thereafter to seek a payloader to load Smith's truck with garbage 58—without saying anything to Smith to wait for him or otherwise—and later returned, Smith was gone. Triolo claims Smith should have waited for him to return, even though he acknowl- edges he did not ask or in any way indicate to Smith that he should. Triolo claims that when he returned, although Hendrickson told him that he had seen Smith there, Hen- drickson did not disclose to Triolo that he had talked to 55 We have been instructed that such witnesses deserve extra good marks in credibility evaluation because they testify under hazard of job retaliation. Cf, , e.g., Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961), enfd as modified 308 F 2d 89 (5th Cir. 1962); Wirtz v B A.C. Steel Prod- ucts, 312 F 2d 14, 16 (4th Cif 1963) 59 It is not readily apparent why Tnolo should want to load with gar- bage a truck which he had just observed Smith cleaning Smith at all. Triolo concedes that at no time did he radio or communicate to the yard that he had located a pay- loader and was on his way back with one, or that Smith should wait for him. Tnolo further testified that it was Executive Vice President Farley himself" who wanted a written memorandum of this "incident" prepared at once, which Triolo did before 5 p.m. of that day (No- vember 13)—something which he acknowledges was out of keeping with his past practice. Triolo claims that the memorandum he wrote is now unaccountably missing and was thereafter replaced by a substitute memorandum (G.C. Exh. 55) written by him at the behest of his superi- ors. According to Triolo, these two memoranda (i.e., the allegedly missing original and the later substitute) are the only ones ever written by him in his 10 years of employ- ment with Respondent, and Triolo regards them as un- called for and the entire incident as not meriting a memorandum. Triolo explains his denial that he had seen Smith at Triolo's yard on the afternoon of November 13 as "a slip of the tongue" which he nevertheless left un- corrected. Finally, Tnolo acknowledges that at no time did he afford Smith an opportunity to provide any expla- nation, and that it was neither Triolo's judgment nor rec- ommendation that Smith be discharged over the incident. John F. Hendrickson corroborates Smith's testimony that he was at the yard in question in the late afternoon of November 13 and that Hendrickson declined Smith's offer to do the job Hendrickson had in mind for driver Peterson. According to Hendrickson, about a half hour later, around 4 p.m.—"approximately five or ten min- utes" after he saw Smith—he unsucessfully attempted to locate driver Peterson on Respondent's radio intercom, and then in his own mind—without conveying this to Smith, to whom he had just conveyed the opposite—de- termined to use Smith if he could not locate Peterson. Hendrickson then notified Job Superintendent Lutjen that he was unable to locate Peterson, and that when he thereafter was unable to espy Smith in the yard, without making any attempt to locate Smith (either by intercom or otherwise), he again notified Lutjen, who told him to write up a report on that also. Hendrickson acknowl- edges that this was the first time in his 6 years of experi- ence with Respondent that he had been asked to prepare such a report." Hendrickson also testified that Respond- ent's drivers' workday was from 8 a.m. to 4:30 p.m., by which time they were expected to have their trucks re- turned to their proper parking locations—in Smith's case, Farmingdale, about 20 miles distant, requiring driving time (according to Hendrickson) of 20 to 45 minutes— cleaned up and ready for the next day's use (in order to It seems astonishing that Farley, Respondent's executive vice presi- dent and top operating chief of its entire far-flung enterprise, should im- mediately be informed about and take such a keen Interest in so seeming- ly a prosaic and trifling matter, and handle it so drastically Tnolo pro- fesses ignorance as to how Farley had learned about the incident so speedily 5i Hendrickson claims that although he did so, he thereafter added two variant supplements to assure the correctness of the original (G.C. Exhs. 56B, C, D, and E). If preparation of the original memo was un- precedented, then preparation of the others including a top sheet (G C Exh. 56A) to "J H F" e, Farley) was perhaps trebly unprecedented, lending a peculiar aura to such a seemingly trifling incident perhaps as- cribable at worst to an understandable, petty misunderstanding HENDRICKSON BROS , INC. 457 avoid the necessity for payment of overtime). It is inter- esting to observe that although Smith was: discharged, Peterson, who was likewise needed (G.C. Exh. 56B) but could not even be located, and who likewise had left the same yard to return to Farmingdale, but earlier than Smith, and whose truck had already been returned by him to Farmingdale before 3:55 p.m. (G.C. Exh. 56C, p. 2, 1. 7) according to Hendrickson, was neither discharged nor in any way disciplined.62 2. Analysis and resolution In the described state of the record, I much prefer and accordingly. accept the account of Smith and Foreman Greenwood, in preference to that of Respondent's wit- nesses, to the extent that they differ, as to the events of November 13-14. That preference, which on balance is not difficult for me to make based on comparative testi- monial demeanor as closely observed by me, is fortified by other circumstances including Shortfalls in the ac- counts of Respondent's witnesses already alluded to. Within the basic framework of the intense, continuing level of protected concerted activities and the leadership in the dissident organization FORE, of Smith, an essen- tially satisfactory employee fo'r 10 years, Respondent's assertion that it discharged him (but took no action against its other driver Peterson for about the same thing) because of the events of November 13, 1980, is difficult to accept. It places an intolerable strain on cre- dulity for many reasons. We begin with the underlying referential framework of Smith's unremitting protagon- ism (with his fellows Curd and Kuebler) in protected concerted activities and his leadership in FORE. We add to this his persistence in seeking to unseat the Teamsters Local 282 hierarchy and to bring about effective admin- istration and enforcement of the collective agreement—a threat to the longstanding entente cordiale between Re- spondent and that local union, the source of Respond- ent's steady and otherwise tractable labor supply; Team- sters Local 282 Business Agent Bourgal's acknowledg- ment that in all of-his years he had never even a single time filed any charge on behalf of any constitutents of that local union before the Board or its state counterpart, under the circumstances detailed it .bordering on the in- conceivable that in all of those years, considering the size of its membership, there was never any reason to; the generally loose practices observed by Respondent's drivers, with its general acquiescence as to the filling out of their daily manifests, including the imprecise record- ing of actual quitting times at the end of the day, and Respondent's tolerance of those quitting times; the preci- pitateness of Smith's discharge, considering his 10-year tenure of essentially satisfactory employment; the dispari- ty of the extreme penalty of discharge visited upon Smith, considering the alleged incident involved—a pen- alty not shown to have a parallel in all of Respondent's history; the fact that Smith's fellow dnver Peterson was 62 It Is also of interest to observe that in his written report of the epi- sode, Hendrickson is careful to restrict himself to stating that he did not instruct (G C Exh. 56B, p. 1, 1. 21, and G C Esti 56E, I 4) Smith to leave the yard, and he is totally silent regarding Smith's informing him that he was returning the truck to Farmingdale neither discharged nor disciplined for a like if not identi- cal offense on the same afternoon, the fact that Smith was never afforded any opportunity to explain, much less demonstrate, the facts and justice of his side of the case; Farley's concession at the instant trial (seemingly con- trary to his position and testimony before the arbitrator) that Smith was not discharged for improperly filling out his manifests; Foreman Greenwood's testimony and writ- ten statement supportive of Smith; the strange coinci- dence that of the only four or five drivers discharged in the 4-1/2 years that Bourgal has been the Teamsters Local 282 business agent (as testified by Bourgal), three of that small number were the FORE leaders—Smith, Curd, and Kueblér—a coincidence so arresting as to call for factual explanations 63 not forthcoming here; and that a careful consideration of the facts here (supra, sec. II,D,1) establishes no believable reason for Smith's dis- charge under all of these circumstances. It is indeed diffi- cult to believe and Respondent has failed to establish by preponderating evidence as required64 that after so many years of service it would summarily discharge one of its drivers over such (at worst) a trifling and ambiguous (even if not contrived and concocted, as I believe it was) incident, without even affording him an opportunity to explain." It follows that there was some other reason for his discharge—namely, as established by the General Counsel, his dogged persistence in seeking to oust the leadership of Teamsters Local 282, perceived by him to be corrupt; his objective—unwelcome to Respondent—of obtaining enforcement of the collective agreement in the true interest of all of the drivers; and his leadership in FORE, designed to achieve those ends. In sum, the General Counsel has made out a prima facie case here, but Respondent has failed to overcome it by preponderating credited evidence as required under the test recently announced by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). On the entire record, including comparative testimoni- al demeanor as closely observed, I find and determine that the true reason for Respondent's discharge of its em- ployee Steven K. Smith on November 14, 1980, was, as alleged in the complaint, Smith's persistence in filing grievances under the subsisting collective agreements to which Respondent was a party, and Smith's otherwise persistently engaging in other protected concerted activi- ties under the Act, including leadership in Fear of Repris- al Ends (FORE); that but for those activities on Smith's part he would not have been discharged; and that Re- spondent thereby, and through its failure to rehire or re- employ Smith since that time, has violated Section 8(a)(1) and (3) of the Act. It remains again, as with Curd and Kuebler, but on a different basis, to consider Respondent's additional con- 63 NLRB v Transportation Management Corp, 462 U S 393 (1983) 64 Id 65 It will be recalled that, as strongly suggested by the testimony of Respondent's own supervisor, Foreman Greenwood, an outstandingly credible and certainly disinterested witness, the entire episode in question was manipulated and distorted, with Foreman Greenwood (to his credit) refusing to participate in the charade designed to oust Smith from his job for a pretextual reason 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention, again raised by way of affirmative defense, con- cerning arbitration. In Smith's case, Respondent urges that all issues involved in his discharge have already been determined in a private arbitration before an arbi- trator jointly selected by Teamsters Local 282 and Re- spondent. 6 6 Smith is firm in his testimony that at no time did he submit, raise, or was there mentioned in the arbitration proceeding-which was conducted on December 22, 1980, after Smith had filed his charge with the Board herein on December 1, 1980-any issue or suggestion concerning his protected concerted activities under the Act nor of his dissident Teamsters Local 282 activities in FORE. A careful reading of the transcript (R. Exh. 5) as well as of the arbitrator's disposition (R. Exh. 6) in that proceeding bears Smith out. There is thus, properly speaking, not here presented a matter of deferral to an arbitral award, since the issue of violation of the Act was not submitted to (assuming, indeed, that it could be; cf. Act, Sec. 10(a)) nor passed on by the arbitrator, whose determination did not en- compass that issue at all. Thus, there is nothing to even consider deferring to, since that issue was left undeter- mined in the arbitration but was fully explored and liti- gated in the instant proceeding for the first time, where it properly should be since it involves the Board's statu- torily imposed responsibility for administering and reme- dying violations of the Act. 67 See Section 10(a) of the Act; General American Transportation, 228 NLRB 808 (1977). For this amply decisionally supported 68 reason (i.e., nonsubmission to and nonconsideration by the arbi- trator of this issue), it is unnecessary here to assess the fairness of the arbitration proceeding and its outcome 66 This was the same arbitrator as the Employer-Teamsters Local 282 designated arbitrator before whom Curd and Kuebler declined (supra, sec II,C,1 hi 36) to submit their discharges for adjudication, in ‘view of Smith's prior experience, preferring instead to exercise their right to avail themselves of the process of the Board before a tenured governmental trial judge not selected by either or both of the parties they regarded as adverse to their rights and Interests under the prevailing circumstances in the situation shown, particularly where the employees/mandatory union members were being represented by a local union with whose leadership they were at daggers' points desperately trying to unseat and which had been and was enmeshed m a miscellany of criminal as well as civil litiga- tion 67 As is apparent from the discussion, supra, sec 11,D,1 and 2, the Smith discharge issue here under consideration Involves no question of contract interpretation or similar question classically considered appropri- ate for disposition through private arbitration The Issue here is, simply and bluntly, only whether Respondent violated the Act through its dis- charge of Smith-a statutory and public law enforcement issue Cf., e g., General American Transportation, 228 NLRB 808 (1977). 66 Cf. , e g , NLRB v Propoco, Inc , 742 F 2d 1438 (2d Cir 1983), affg 263 NLRB 136 (1982), NLRB v Magnetics International, 699 F 2d 806 (6th Cir. 1983); NLRB v. Al Bryant. Inc., 711 F.2d 543 (3d Cir 1983), NLRB v. Designcraft Jewel Industries, 675 F.2d 493 (201 Cir. 1982); Gener- al Warehouse Corp., 247 NLRB 1073, 1076 (1980), enfd. 643 F.2d 965, 969-971 (3d Cir 1981), Si Luke's Memorial Hospital v. NLRB, 623 F 2d 1173, 1178-79 (7th Cir 1980); Suburban Motor Freight, 247 NLRB 146, 146-147 (1980), Stephenson v. NLRB, 550 F 2d 535, 537-541 (9th Or 1977), Banyard v. NLRB, 505 F 2d 342, 348-349 (D.0 Or 1974), John Klann Moving Co. v. NLRB, 411 F 2d 261, 263 (6th Cir 1969), cert denied 396 U S 833 (1969), Yourga Trucking, 197 NLRB 928 (1972); Air Reduction Co, 195 NLRB 676, 676-677 (1972); Collyer Insulated Wire, 192 NLRB 837, 839-840 (1971), Raytheon Co., 140 NLRB 883, 884-887 (1963), enf denied on other grounds 326 F.2d 471 (1st Cir. 1964). under the Board's Spielberg" standards. It follows that Respondent's contention that the Board is precluded here from considering the issue of statutory violation stem- ming from Respondent's described discharge of Smith, is without merit. On these findings and the entire record, I state the fol- lowing CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. 2. By its conduct set forth and found here in section II,C, supra, in terminating the employment of Charles Curd and John William Kuebler on April 20, 1982, and failing to reinstate or reemploy them thereafter, Re- spondent has interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed under Sec- tion 7 of the National Labor Relations Act and continues so to do, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. By its conduct set forth here in section II,D, supra, in terminating the employment of Steven K. Smith on November 14, 1980, and failing to reinstate or reemploy him thereafter, under the circumstances described and found in section II,D, supra, Respondent has discriminat- ed and continues to discriminate in regard to the hire, tenure, and terms and conditions of employment of em- ployees, thereby engaging in unfair labor practices in violation of Section 8(a)(3) of said Act; and has, further, thereby interfered with, restrained, and coerced employ- ees in the exercise of rights guaranteed in Section 7 of the Act, and continues so to do, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of said Act. 4. Respondent has engaged in said conduct, and con- tinues to do so, because its said employees engaged in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection lawful under said Act, and in order to discourage employees from engag- ing in such lawful activities under said Act. 5. The aforesaid unfair labor practices and each of them have affected, are affecting, and unless permanently restrained and enjoined will continue to affect, com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent's affirmative defenses in each of the consolidated cases herein, pertaining to arbitration, should be dismissed as lacking merit in fact or in law. 69 Spielberg Mfg. Co, 112 NLRB 1080 (1955) Cf Prolific°, Inc., 263 NLRB 136, 137 fn. 3 (1982), enfd supra fn 69. In this connection, It may be of interest to note that on March 3, 1981, subsequent to this arbitra- tion, the Unemployment Insurance Appeal Board of the State of New York unanimously rejected the appeal of Hendrickson Bros, Inc. (Re- spondent in the instant proceedings) and affirmed the determination of its Admistrative Law Judge Rayner that Smith's discharge involved no mis- conduct on his part and that he was accordingly entitled to unemploy- ment insurance benefits (C P Exhs 10, I 1, and 12) We have been in- structed by the Board that such determinations are deserving of weight in Board cases. See Mitchell Plastics, 117 NLRB 597, 598 fn. 1 (1957), enfd as modified 260 F.2d 472 (6th Cu. 1958); Seyfert Foods Co. 109 NLRB 800, 810 fn 5 (1954), Sun Co, 103 NLRB 359 (1953), enfd as modified 215 F 2d 379 (9th Cm 1954); Aerovox Corp., 104 NLRB 246, 247 (1953), enfd. 211 F.2d 640 (D.0 Cir. 1954), cert denied 347 U S 968 (1954) HENDRICKSON BROS , INC 459 REMEDY Respondent having been found to have interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, should, as is usual, be ordered to cease and desist from continued and further such violation Respondent having also been found to have unlawfully terminated the em- ployment of three employees, and having failed and re- fused to reinstate or reemploy them, should, as is also usual in such cases, be ordered to cease and desist from continuing or other such violations, to offer full and un- conditional reinstatement to the terminated employees to their former jobs and to make them whole, with interest, for any wages, overtime pay, accruals, bonuses, emolu- ments, and benefits (including vacations and vacation pay, and hospitalization and other medical benefits, in- cluding reimbursement for any expenses or obligations incurred by reason of any cancellation, withdrawal, lapse of coverage, or nonpayment of premiums thereon, by Respondent) lost or reduced by reason of such termina- tions, and with full restoration of seniority as though said terminations had not occurred, all as determinable in a supplemental backpay proceeding unless satisfactorily mutually adjusted without one Sums and interest should be computed as explicated in F W Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) Respondent should also be required to make said em- ployees whole for any income tax loss to them through payment of any sums due hereunder in a lump sum or otherwise pursuant to this Order rather than at the times and in the manner said sums should have been paid but for Respondent's unlawful nonpayment thereof 70 All references in Respondent's records to the unlawful discharges herein should be expunged, and the terminat- ed employees should be so informed in writing, and Re- spondent should be required to desist from so indicating to any prospective employer, union, unemployment in- surance agency, reference seeker, credit agency, or char- acter inquiry Respondent should be required to preserve and make available to the Board's agent its books and records for backpay and compliance determination pur- poses, and to post the usual informative "Notice to Em- ployees" Respondent should also be required to cease and desist from any like or related violation of the Act [Recommended Order omitted from publication I 70 Cf Sears v Atchison Topeka & Santa Fe R R Co, 31 EPD para 33,388 (U S D C Kans 1983) Board and courts have repeatedly pointed out that the purpose of backpay is to make unlawfully treated employees whole Payment to such employees of backpay, under Board order or court judgment, whether against an employer or a union, could be sub stantially detrimental to employees if they are thereby through such tardy payment in a lump sum, forced into a higher Income tax bracket, with the effect (of which they are wholly innocent) of thereby reducing then- net income instead of making them whole Since that result would be a direct consequence of the unlawful nonpayment to them of the moneys when due, it seems utterly clear that a respondent, whether em- ployer or union, who brings this about by its unfair labor practices in vio lation of law, should be required to indemnify the employees for any such loss For these reasons, this requirement should be included in the remedial order APPENDIX A Excerpts from Respondent's Port Washington Landfill Jobsae Foreman Brown's Job Diary (G C Exhs 5[a] and [b]) June 12, 1981 Had a little trouble with John Kuebler chauf complain- ing about dirt blowing because chauf on water truck went home sick at 2 00 pm, gave me a hard time about calling the Board of Health & union etc Because of John Kuebler, only made 15 loads We should be making average 20 loads [G C Exh 51[a], p 2 1 Monday, June 15, 1981 Called and tried to get John Kuebler and Charlie Curd off the job [Id p 4] Tuesday, June 16, 1981 Having a hard time again with John Kuebler com- plaining too much dust he can't drive the truck because of fumes between the two of them [1 e, Kuebler and Curd] they set a slow pace of like 15 miles an hour and none of the other drivers will pass a We are loosing [sic] a lot of yardage because of these two I asked again to have them removed from the job but got them both back at the shape list at 4 00 for Wednesday again [Id p 5] Wednesday, June 17, 1981 I showed ["Joe" and John Parr] how John Kuebler and Charlie Curd are messing up our fill runs by going 5 miles an hour because they complain about too much dirt and dust blowing They are holding up garbage trucks and trucks from the dump hauling sand to cover garbage They have to pass our trucks which makes it very dangerous with trucks coming off the dump Asked again to have these two men removed from the job Had to call Joe Farley and on orders from him I must keep track of loads each driver makes Lent-454 made 15 loads because truck arrived from Farmingdale at 9 30 Charlie Curd-453 made 16 loads John Kuebler-510 made 16 loads H Green-456 made 16 loads Alan Dice-509 made 17 loads While talking to [Shop Steward Paul Gattus] John Kuebler pulled his truck up and started yelling about not having to work under these conditions, Told Paul [Gattus] he was gonna call Board of Health etc And in- sisted on a deligate [sic] Paul [Gattus, Teamsters Local 282 Shop Steward] told him to calm down and get back to work ° Other of Respondent's witnesses testified that one recommended way of keeping dust down was to drive more slowly Foreman/dianst Brown acknowledged at the trial that Kuebler and Curd's slower driving and recommendations to fellow-drivers that they also should drive more slowly were "definitely related to the dust that was blowing around ' 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have a right to keep [the drivers till 5 00 p m and] I told all 5 drivers to sit right where they were and all hell broke loose Big mouth Charlie Curd started sticking his finger in my face and wanted to know whose idea this was to keep the trucks sitting here doing noth- ing, and I replied "mine" I told you guys in the morning you keep screwing me doing your 10 miles an hour and playing games I could play games too When you play games all day now I'm playing mine Charlie Curd said he's gonna called the Labor Relations Board and have them down on my back I told him to call the Pope if it turned him on When I finally told them to park the trucks, they all took off like they were drag racing all of a sudden the dust allover the place didn't bother them [Id pp 6-8 ] Thursday, June 18, 1981 I explained to [truckdriver John Graziano] about John Kuebler and Charlie Curd breaking chops Their reply was they need their job and their [sic] going to work and pay no attention to their BS When Charlie Curd arrived on job about 7 50 a m [i e, 10 minutes before work starting time] he called a so- called meeting and told [drivers] Graziano and Savarese, Jr slow down, they don't have to work under these con- ditions on this job but the 2 kids paid no attention to his BS and ran circles around them all day Savarese Jr made 20 loads Graziano made 20 loads compared to Charlie Curds 16 loads Charlie Curd tried to influence every driver on the job to slow down because of dirt blowing' because he claims its bad for your health and they don't have to do it He complains so much again about the dirt blowing the Shop Steward, Paul Gettis [sic] had to come on job again Dust is blowing a little bit not that they can't drive He told Paul Gattis [sic] he wants a delegate on the job tomorrow because he will not drive the truck under these conditions Joe Nicolosi [Respondent's Vice President in charge of all field operations] came on job and I suggested getting a water tank put on one of the trucks and let Curd drive it and if we have rain that we don't need it We could lift it off with Backhoe and use the truck on the fill run C Curd-453, 16 loads A Dice-509, 17 loads A Giuffre-510, 16 loads J Savarese, 456, 20 loads J Graziano, 454, 20 loads [Id pp 8-10] Monday, June 22, 1981 [Teamsters Local 282 Steward] Paul Gattis [sic] came on job I told him everything was fine except for John [Kuebler] complaining about fumes He [Gattus] said he's going to have a talk to all the drivers and tell them to shape-up because if it wasn't for this job these 5 drivers would not be working [Id p 12 ] b See fn a supra Tuesday, June 23, 1981 [B]y 8 30 a m Charlie Curd and John Kuebler were complaining about too much dirt and dust blowing, this was bad for their health and that they don't have to work under these conditions I checked with the people on the dump and water truck was broke down Rather than listen to their BS I took the tailgate of[f] a truck 453 and sent Charlie Curd over to L4 to put the water tank on the truck We had to adjust water tank and lost about 20 minutes We watered all haul loads and no more complaints from any drivers Joe Nicolosi came on job about 2 30 and seemed satisfied with what I was doing Truck 453—Curd-4 loads, put water tank on for the rest of the day Truck 509—Graziano-24 loads Truck 454—Dice--24 loads Truck 456—Savarese Jr —24 loads Truck 510—Kuebler-22 loads 90 loads total [Id pp 14-15 ] Wednesday, June 24, 1981 5 trucks on job, 1 being used as a water wagon all day to wet down haul loads This worked out fine with all the drivers No dust blowing at all [Id p 161 Friday, June 26, 1981 shows you the difference in load count when Kuebler & Curd are not on my job [Id p 18 1 Monday, June 29, 1981 Curd and Kuebler back on job We slowed down to 112 loads today because of these 2 humps [Id p 20] Tuesday, June 30, 1981 No complaints about dust blowing I make sure Charlie Curd was on water wagon [Id p 21] Wednesday, July 1, 1981 Hauling clay with 5 trucks using 6th truck as a water wagon No problem about water on roads today No one complained about dust blowing [Id p 22 ] Thursday, July 2, 1981 By 2 30 p m Kuebler started complaining it was too dusty to work, wanted me to put water tank on truck I told him to go to hell [Id p 23 1 Monday, July 6, 1981 [H]eavy rain over the weekend but by 2 00 pm roads were so dry and dust blowing so bad that all the drivers were complaining they can't work under these conditions so I put the water tank on 453 No more com- plaints after I started watering [Id p 26 ] Wednesday, July 8, 1981 I had Joanie Hendricks on the water tank John Kuebler kept breaking her ass all day that she don't HENDRICKSON BROS., INC 461 know how to put down water. I told her . . . tell John Kuebler to piss up a rope. [Id. p. 28.] Monday, July 9, 1981 . . . Didn't have John Kuebler here today. No com- plaints about too much dust. [Id. p. 29] [Foreman Brown's reports for ensuing days show no problems where roads were adequately watered with Re- spondent's watering truck in use.] Monday, July 27, 1981 . . . by 10:00 am the main haul road started getting dry and the 2 ball-busters, John Kuebler and Charlie Curd started complaining about the dust . . . [After] I started the water truck up . . . things ran fairly decent. [Id. p. 46.] Tuesday, July 28, 1981 . . . Had the 2 ball busters again. [Id. p. 49.] Monday, August 3, 1981 I also had to use the water truck to dump a load in front of the clay because it is so dry It will not run I also have to use the water truck with the dock builders when they burn the steel piles off. We had a fire inside 1 pile but managed to put it out This will be a daily rou- tine with the water truck as far as the dock builders are concerned because if this dump catches fire it will take a year to put it out so under direct orders from Rudy Whenever they are burning a pile off I am to have the water truck stand by just in case. [Id. p. 58.] Tuesday, August 4, 1981 . . . I had a little trouble with John Kuebler . . . Now he's complaining we should have a portable bathroom on the job. I told him there is a beautiful [one] in the town yard, he is welcome to go down to their yard and shit his brains out any time he pleases [Id. p. 601 Wednesday, August 5, 1981 . . . This fill area is getting a little hairy, have to be very careful the way the trucks are dumped or we're gonna loose [sic] one. This is slowing down the load count a little bit but its better than somebody getting hurt. [Id. p. 62.] Thursday, August 6, 1981 • . . we are trying to fill over clay and this is very hairy. I could not get the trucks into the dump area with this material . . . This is pretty dangerous so I am just gonna slow down . . . . [Id. p. 63.] [Again, on ensuing days, operations were totally or sub- stantially driver-complaint-free when Respondent de- tailed one of its trucks to watering-down the roads all day.] Thursday, August 27, 1981 . . . This work has to be accomplished as soon as possi- ble before the ETA [sic] finds out about the garbage being at least 110 ft. passed [sic] the liner . . before we end up having [the] press and the TV people down on there [sic] necks. [Id. p. 82.] Monday, August 31, 1981 . . This is pretty dangerous and it has to be done slow so that the garbage and rubble does not fall down on the trucks coming up the haul road. [Id. p. 87.] Thursday, September 3, 1981 . . We also had to loose [sic] a little time about 2:30 because of drivers complaining about dust blowing so bad on the road so I had to put the water tank back on [truck No.] 510 about 2 .30. [Id. p 90.] Monday, September 21, 1981 . . . After lunch I had to take 1 truck off and use it for a water truck. [Id. p. 114.] Monday, October 15, 1981 . . . I also had to order more masks because the gas is so bad the operators are getting sick. "[Teamsters Local 282 truckdriver] A. Giuffre went into my pick-up and decided he should have a mask also but I told him if he ever touches anything in my truck out- side of the water cooler, I was gonna break both his arms and then have him fired for stealing. There is no need to have any chauff.'s using these masks. They are not even working in the area where the gas is coming out. [Id. p. 141.] Thursday, October 22, 1981 . . . [T]hey think they dumped garbage past the liner This may be the reason we are getting such high gas readings in this area. [Id. p. 147.] Friday, October 23, 1981 . . . Rudy and the commissioner came down at my re- quest to check the [excavated] hole out It is filling up with water also stinks of gas also has garbage on this area. I told him anything that comes out of here shouldn't be dumped in my fill area, that it should be taken up on the dump. They both agreed . . . Trying to locate the rest of the liner but we kept taring [sic] pieces off of it and the rest has to be all located by hand. . . . I could not get the trucks up to the top. I was afraid one might slide off and go off the slope [Id. pp. 148-149.] Thursday, October 29, 1981 Started a backhoe loading 5 trucks with sand to try and mix with the petemoss [sic] and bog that they call "top soil" . . . I was told just try and backdrag it and make the slope look halfway decent as long as it looks black, that's good enough. In my opinion I think this material stinks. [Id. p 155.] Wednesday, March 10, 1982 . . . He [Rudy Bartoldus] is worried because all the big shots: the judges, the laywers [sic], the pollutions [sic], and the Board of Health, will be on the job tomorrow 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [sic] and he would like everything to look nice and neat • . . [T]hey must think I am Hudini [sic]. . . . [Id. pp. 266-267.] Thursday, April 1, 1982 . . Commissioner Cook asked me to run him 3 trucks with clean fill to cover the garbage before the camera man arrived on the job from 60 Minutes TV. I used these trucks for 4 hours [Id. p. 288.] Tuesday, April 20, 1982 • . . About 1 p.m. Charlie Curd and John Kuebler com- plained to me about the dust and wanted to know why the town wasn't putting down more water. I told them their water truck broke down and they are working on it in the shop and that they will have it going again as soon as possible. c This was not good enough for them, they wanted water right then and there. They wanted me to put my water tank on one of our trucks. I told them no. I would have to walk the backhoe 1/2 mile to get the tank and load it and that I would have 4 trucks and 2 dozers sitting while I did this and it would be 2:30 or 3:00 by the time Charlie Curd could put any water on the roads. . . They both . . told me they were not going to work, they were gonna park the trucks. I told them to go ahead and park them but make sure they put down the time they parked them on your manifest. . . . By 2:30 the town water truck was working again. d John and Charlie both parked their trucks at 1:30. [G.C. Exh. 51[b], pp. 5-6.] Wednesday, April 21, 1982e . . Had a good day today. . . . We did not have John Kuebler or Charlie Curd on the job today and all the chaufers [sic] did a pretty good job after all the bull shit that went on yesterday. I think these young guys learned a lesson from Charlie and John. They are doing what they are paid to do, not read the paper or magazines and bullshit to one another all day. . . . When these 2 guys are not on the job things run so smooth. It's unbeliev- able. All the operators on the job are happy that these 2 guys are gone and it makes everything so easy for all of us. Joe Nicolosi came on the job today and gave me back my diary that I sent into Valley Stream to Joe Farly [sic] to read. He said this is exactly what they wanted because Charlie and John were fired and they needed some kind of proof and my diary did not pull any punches I told Joe Nicolosi that Commissioner Bill Cook was very upset that Charlie Curd and John Kuebler had an c It is established that this water truck could not be or was not repaired at all that day d See fn c supra This was not the truck which had broken down, but another As shown in the text of the foregoing decision, in any event the town's watenng truck(s) was or were inadequate to take care of Re- spondent's needs, it was for this reason that the town had authorized Re- spondent to use Respondent's own watering tank mounted on Respond- ent's own truck, at the town's expense • There is no indication of any watering this day f There is no indication that Kuebler or Curd did this on the job entirely different story about what happened [Id. pp 8- 9.] Thursday, April 22, 1982g . . We had no trouble with any of the chaufers [sic] on the job today since John Kuebler and Charlie Curd were fired. These young drivers are doing a good job without these 2 guys telling them to slow down and all the other bull-shit. Things ran pretty good today. None of the op- erators complaining in the loading area or the dump area. [Id. p. 10.] Friday, April 23, 1982h . . . No trouble from the drivers today. They seem to be a little shook up after what happened to Curd and Kuebler. [Id. p. 11.] Tuesday, April 27, 1982 • . . This place is unbelievable. You never know from 1 day to another what kind of ground your gonna [sic] work on. [Id. p. 15.] Thursday, May 6, 1982 [After driver Green showed up 7 minutes late, allegedly because of a traffic jam, with a flat on his disabled truck meanwhile being fixed] . . . . I also took the keys out of the truck just to make sure he did not pull "I am a mi- nority. I am going to work." . . . I want this on record just in case he thinks I am being prejudice [sic] because he knocked down the fence yesterday or because he is black . . . After this happened all the rest of the driv- ers said, "Boy, this Charlie Brown is getting bad, he is not gonna take any more crap from any of us so we better watch our ass." They all ran like a bunch of scared rabbits today. We had no problems with them at all. Maybe this taught them a lesson. [Id. pp. 26-27.] Tuesday, May 11, 1982 . . . I also put the water tank on [truck No.] 453 because the drivers were complaining about the dust.' I asked Rudy to put on an extra truck so we could have one for a water wagon but he told me NO. If these drivers have any complaint about the dust on the job they got to complain to the guy on the water truck for not doing his job properly. We are not suppose to have a water truck on the job i The town is suppose to supply the water but I am putting 1 truck on water all day and if this doesn't satisfy these "cry baby" truck drivers it's just tough shit. [Id. p. 31.] g There is no indication of any watering this day either h Again, there is no Indication of any watering this day 1 This Is the first diary entry indicating any watering since the dis- charge of Kuebler and Curd in regard thereto on April 20 J This certainly constitutes a change in policy so as to eliminate Re- spondent's watering truck after the discharge of Kuebler and Curd for seeking to have that authonzed watering truck placed into operation This is not to say that Respondent was in any way relieved of any obliga- tion on its own part to utilize a watering truck (and other appropriate health and safety devices, including protective masks) for its own em- ployee drivers on its jobsite HENDRICKSON BROS., INC. 463 Tuesday, May 18, 1982 Friday, May 21, 1982 1 truck on watering all day. [Id. p. 36.] 1 truck on water all day. [Id. p. 4.] Wednesday, May 19, 1982 1 truck on water all day. [Id. p. 37.] Thursday, May 20, 1982 1 truck on water all day . . . . This clay is so bad George doesn't have time to sneeze. [Id. p. 38.] Wednesday, May 26, 1982 • . • Right after lunch I put the water tank on [truck No.] 453 because the roads were starting to get dusty. We used this truck for watering down the main haul road for the rest of the day [Id. p. 46.] [Last entry]