Morrison-Knudsen Co. v. National Labor Relations Board
Morrison-Knudsen Co. v. National Labor Relations Board
Opinion of the Court
Morrison-Knudsen Company, Inc. and Hawaiian Dredging and Construction Company, joint venturers, (hereinafter the “Company”) petition this court to review and set aside an order of the National Labor Relations Board. By answer, the Board has requested enforcement.
The Board concluded, in agreement with the trial examiner, that the Company violated Section 8(a) (1)
Briefly stated, the facts are these:
Fred Crawford and his son Michael were both employed on the Company’s Lower Kula Road Project, Fred as a motor grader operator and Michael as a grade checker. However, on the morning of this particular day Michael was assigned to a labor crew in the charge of Foreman Guillot and put to work cleaning out culverts. This was done with compressed air. The size of the culvert made it necessary for a man to stand inside, and the force of the air raised great clouds of dust and blew debris about. Working in shifts, each member of the crew took a 10 or 15 minute turn with the nozzle while the other or others remained outside “catching fresh air.” During the morning a state inspector,
The Company contends that, even if the conduct of its employees constituted a protest over working conditions, under the facts of this case the protest was not an activity coming within the protection of Section 7.
We do not agree that Section 7 must be so narrowly construed. In N.L. R.B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962) there was no suggestion that the walkout was incident to any bargaining —indeed the workmen involved were not organized and had no bargaining representative. Yet the Court held the “activity” was protected under Section 7 as one for “mutual aid or protection.” The Court’s stress on the lack of such a representative does not, in our estimation, indicate a different result had the men been organized, but was noted to emphasize that “[u]nder these circumstances, they had to speak for themselves as best they could.” And in Salt River Valley Water Users Ass'n v. N.L.R.B., 206 F.2d 325 (9th Cir. 1953), where it appeared that the employees engaged in the “activities” in question were all members of a union but acted independently of their bargaining representative, this court declared that “ ‘concerted activities for the purpose of * * * mutual aid or protection’ are not limited to union activities.” (p. 328). Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th Cir. 1949) is to the same effect.
We agree with the Company that “Section 7 rights are group rights, relating to ‘concerted activity’.” But we part company when it argues that “it is impossible to read the record as a whole and rationally reach the conclusion that the son was complaining.” The record is replete with testimony to the effect that not only Michael but indeed the entire crew voiced objections to the particular conditions under which the work was done. And although Fred was the principal actor, the evidence and its permissible inferences legitimately support the conclusion that his protest was also Michael’s.
Fred was not himself exposed to the condition that constituted the grievance, but nevertheless we believe that his sympathetic action could be and was, as the Board concluded, “for the purpose of * * * mutual aid and protection” within the meaning of Section 7. This court has recently held in N.L.R.B. v. Phaostron Instrument & Electric Co., 344 F.2d 855 (9th Cir. 1965), that fellow workmen were protected when they walked out in protest over the mistreatment of one of their own number. We think that this
“Certainly nothing elsewhere in the act limits the scope of the language to ‘activities’ designed to benefit other ‘employees’ ; and its rationale forbids such a limitation. When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a ‘concerted activity’ for ‘mutual aid or protection,’ although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his time ever comes, of the support of the one whom they are all then helping; and the solidarity so established is ‘mutual aid’ in the most literal sense, as nobody doubts. So too of those engaging in a ‘sympathetic strike,’ or secondary boycott; the immediate quarrel does not itself concern them, but by extending the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased. It is one thing how far a community should allow such power to grow; but, whatever may be the proper place to check it, each separate extension is certainly a step in ‘mutual aid and protection.’ ”
The Board, although disagreeing with the Examiner’s conclusion that the condition precipitating the concerted activity was “abnormally” dangerous, did approve his conclusion that it afforded a legitimate basis for complaint.
“Helmet, Goggles and Respirators.
Compressed air operations generally result in hazards and dust, vapors and flying debris. Operators and workmen in the vicinity of these hazards shall wear appropriate helmets, goggles and respirators.”
In view of the fully supported findings of the fact finder regarding the method used to perform the job, the discomfort suffered by the crew and the absence of any goggles and respirators, the Company cannot successfully urge either that, the above code provision is inapplicable or that Michael’s complaint wholly lacked substance or related to matter toe trivial for the Board’s attention.
The evidence also provides adequate support for the Board’s finding-that Fred’s conduct was within permissible bounds and that cause for his dis
What we have said regarding the evidence relating to Fred’s discharge applies with added force to the examiner’s conclusion that Michael was fired. Indeed, the evidence that Michael voluntarily quit is hardly plausible and largely consisted of the equivocal statement which appears on a Company termination slip that he “quit — refused to work because it was unsafe to work.”
The decree is affirmed and the order will be enforced.
. Section 8(a). “ “It shall be an unfair labor practice for an employer * * * (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 of this title.”
. Section 7. “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, * * * ”
. Section 7. “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, * * * ”
. Since the charge was laid under Section 7 of the Act, the allegation in the complaint and the examiner’s corresponding findings that the working conditions were “abnormally dangerous” were not material. Thus, the absence (or in this case the rejection) of that finding is hardly fatal to the validity of the Board’s order.
. In the Aluminum Company case the complaint concerned lack of heat in the company plant during cold weather. The Court held the employees’ walkout in pro test was protected but as to the condition itself merely said: “Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as the testimony and Board findings showed them to be in this case are unquestionably activities to correct conditions which modern labor-management legislation treats as too> bad to have to be tolerated in a humane' and civilized society like ours.” This' statement was hardly intended as one announcing a rule of law.
Reference
- Full Case Name
- MORRISON-KNUDSEN COMPANY, Inc. and Hawaiian Dredging and Construction Company, a Division of Dillingham Corporation, a Joint Venture v. NATIONAL LABOR RELATIONS BOARD
- Cited By
- 1 case
- Status
- Published