On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before Fairchild, Chief Judge, Cummings, Circuit Judge, and Jameson, Senior District Judge.*fn*
Carlson Roofing Co., Inc. (the Company) has petitioned for review of an order of the National Labor Relations Board finding that the Company (1) violated Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (3), by suspending its employees for the day of April 12, 1978, in response to their concerted protest of working conditions and their support of the Union position regarding the size of repair crews, and (2) violated Section 8(a)(1) by threatening to lay off its employees until June 1 for the same activities. The Board filed a cross-application seeking enforcement of its order.*fn1 We grant enforcement of the Board's order based on violation of § 8(a)(1).
The Company, a roofing concern located at Rockford, Illinois, employs approximately 50 roofers. It is engaged primarily in the installation of new roofs, with about five per cent of its business devoted to roof repair. The Company has recognized the Union*fn2 as the bargaining representative of its employees for approximately 40 years.
Since 1970 the Company has bargained with the Union on a multi-employer basis. A series of collective bargaining contracts between 1970 and 1978 contained the following provision:
Patch and repair crews shall consist of one or more journeymen roofers along with helpers as required for safe working conditions and accepted roofing practice. If working conditions at the job site proves need for additional help, the foreman shall call the employer for additional help or instructions.
Prior to 1977, it was the general practice of the Company to assign only one employee to perform repair work. In July, 1977, Philip Schultz became business agent of the Union and began pressing for two-man repair crews because of the risks involved when one man was required to haul material up ladders.*fn3 Following a meeting on September 6, 1977, between the Union and representatives of the Company and other roofing firms, Carlson "decided to give (two-man crews) a try on a trial basis to see how it works out".*fn4
Two-man crews were used on most repair jobs for the ensuing seven months, although the Company occasionally assigned four of the employees to perform repair work alone. Those employees sometimes complained about the one-man assignments, but there was evidence to support the Board's finding that no employee had "refused" to work alone.
On April 11, 1978, George Gentzel was assigned by the Company to do a small repair job on the roof of a building in Oconomowoc, Wisconsin. Gentzel asked for help, expressing his reluctance to go on the repair job alone; but the Company had estimated that a single man could do the job in an hour, and Gentzel was told to go alone. The Company claims Gentzel said he could not afford to be fined by the Union. Although Gentzel was told not to worry about the fine, he called business agent Schultz, who contacted a sister local in the Milwaukee area for an extra man. When this was reported to the Company, the job was postponed.
On the morning of April 12, 1978, Ed Carlson told Nick Di Angelo, an employee of 38 years and member of the union executive board, that he had decided the two-man crews were too expensive. Carlson also advised Schultz that the two-man crews were too expensive and that the Company had precedent for sending out only one man. Schultz replied that the size of the repair crews was to be a subject of negotiation on the new contract. Carlson asked what would happen if he sent a man home for refusing to work by himself, and Schultz replied that the man would have the right to file a grievance. When Carlson asked what would happen if he sent them all home, Schultz replied that was up to Carlson. The Board found that after the phone call to Schultz, Carlson kicked a pail and said, "We ain't going out until we get this damn thing straightened out. I don't care if it takes until June the 1st."
Carlson then convened a meeting in the "warm room" of the 30 to 35 roofers who were waiting for their job assignments.*fn5 Carlson recalls starting the meeting by reading the repair article from the contract, telling the men that there was precedent for one man doing repair work, and that although the Company had tried the two-man crews, they were too expensive and complaints were already being received from the customers who would ultimately call some other company to do the work. He said it was not fair for the Union to now insist on two-man crews. Three of the employees who had performed one-man assignments expressed reluctance to go out alone.*fn6 Carlson ended the meeting by telling the men no one was going out to work that day until the repair issue was settled. Carlson also asked whether the principle of two-man crews was important enough for the employees to stay out until June 1, when the contract would be renegotiated, although he claims that remark was made to Di Angelo alone as they were leaving the warm room after the meeting had ended.
Pursuant to the Company's directions, none of the employees worked on April 12, and they were not paid for that day. On the advice of Carlson's legal counsel, all of the men were allowed to return to work the following day. Negotiations for ...