NLRB v. Fruin-Colnon Construction Co.

• Decision Date: 24 April 1964
• Docket Number: No. 17390.,17390.
• Citation: 330 F.2d 885
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRUIN-COLNON CONSTRUCTION CO. and Utah Construction and Mining Co., a Joint Venture, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

330 F.2d 885 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRUIN-COLNON CONSTRUCTION CO. and Utah Construction and Mining Co., a Joint Venture, Respondents.

No. 17390.

United States Court of Appeals Eighth Circuit.

April 24, 1964.

Alfred Brummel, Atty., N.L.R.B., Washington, D. C., made argument for petitioner and filed brief with Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N.L.R.B., Washington, D. C.

Mark R. Gale, St. Louis, Mo., made argument for respondent and filed brief with Ralph Edwards and Greensfelder, Hemker & Wiese, St. Louis, Mo.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

This is a petition by the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act (29 U.S.C.A. § 141 et seq.) for enforcement of its decision and order (139 N.L.R.B. 894) arising from alleged unfair labor practices committed by respondent, Fruin-Colnon Construction Co., a Missouri corporation, and Utah Construction and Mining Co., a Delaware corporation, engaged as joint venturers in the interstate business of construction of a hydroelectric project in Missouri for a utility company operating therein.

The facts and findings of the Trial Examiner, adopted by the Board, but contested in main by respondent as unsubstantiated by the evidence, are summarized most favorably to petitioner as follows.

The project's plan of construction entailed fabrication of a fifty-five acre, dike-enclosed reservoir atop a mountain, in the basin of which a shaft, 450 feet deep and 27 feet in diameter, was being dug to connect with a tunnel bored almost the entire length up the mountainside, the lower outlet of which emptied into a second reservoir at the foot of the mountain. A powerhouse integrated with the "shaft-tunnel" conduit between the two reservoirs was designed to generate additional electricity when needed from water circulated between the two reservoirs.

At the time of their asserted wrongful discharge by respondent, the four, complaining rank-and-file miners, Lanham, Gailey, Bess and Upchurch plus miner Williams and Foreman Fitzgerald comprised one of three eight-hour shifts assigned to continuous work on the shaft.¹ It was the task of these miners to enlarge the entire length of the proposed shaft commencing at the opening on top of the mountain and proceeding downward by expanding to the specified 27 foot diameter the previously mined pilot hole, which varied in width from eight to twelve feet. Simultaneously, the walls or dikes of the upper reservoir were being constructed in the area adjacent to the mouth of the shaft by trucks dumping fill from the leveled mountaintop and sluicing it with high pressured water pumps into compacted pyramidal embankments.

On the morning of November 8, 1961 at 7:00 a. m., Foreman Fitzgerald and his five man crew reported for work at the mouth of the shaft. According to practice, the preceding shift was hoisted by crane from their work in the shaft below to the surface in their cable-attached, double-decked, hexagonal platform especially constructed for this operation, and sometimes referred to by the miners as the "cage".² The relieved miners, appearing "wetter" and "dirtier than usual", remarked to the men in Fitzgerald's crew that "it was awful rough down there". One of the miners in Fitzgerald's crew testified he observed a rock roll down the nearby embankment where the sluicing operation was being conducted and strike the crane located behind a chain-link, retaining fence encircling the collar of the mouth of the shaft.³ Fitzgerald and his crew boarded the cage and were lowered 125 feet down into the shaft to the enlarged ledge surrounding and sloping inward at a 35° to 45° angle towards the pilot hole which marked the progress of the hole's expansion to date. After dismounting from the top deck of the cage via ladder to the ledge, positioning the base of the cage over the pilot hole to protect to the extent possible from falling into it, and unloading their equipment from the lower deck, the men commenced the enlargement process where the prior shift had left off. In accordance with the standard operating procedure, two of the miners manned the air hose gun blowing the loose, uncleared debris and rock from a previous dynamite blast into the pilot hole, while two other miners attempted to drill holes in the shaft's floor for insertion of explosives to be detonated after the crew's subsequent removal from the shaft. The remaining miner tried to paint a line designating the intended outer perimeter of the shaft's desired width, but water seeping and flowing in rivulets about the size of one's little finger from fissures in the shaft's walls obliterated his efforts. The approximate outside temperature on this morning was 29° F., recorded mechanically by a thermograph machine operating continuously at the jobsite. The effect of the colder temperature outside the shaft was to create a strong updraft through the pilot hole. This updraft would strike the bottom of the cage, positioned over the pilot hole, and spray onto the ledge, mixing with loose material from the blowing operation and forming a mudladen mist which got into the miners' eyes hampering their vision. The floor of the ledge was partially covered by deposits of a thin, concrete material called gunite which had fallen on November 6, 1961, during the last application to cyclone fencing bolted to the walls of the overhead, enlarged shaft as a precaution against loose rocks falling on the miners below. Seepage water on the gunite deposits on the floor of the ledge were found to have made the miners' footing slippery.

A combination of these conditions which several of the crew complained was impeding the progress of their work prompted one of the miners to request of Foreman Fitzgerald that he discontinue operations in the shaft and transfer the crew to work in the tunnel. Although Fitzgerald concurred in the disagreeableness of the working conditions, he expressed his lack of authority precluded his granting the request. However, he offered to temporarily suspend work, return with the crew to the surface, and communicate the men's request to Superintendent Finlay, reminding them that as a supervisor he would have to remain neutral. Reaching the surface in the cage with his crew about one hour after the day shift had begun work, Foreman Fitzgerald located Superintendent Finlay and informed him of his men's complaints and their request to be transferred to work in the tunnel. Finlay replied that he had no other work for the men except in the shaft. Upon learning of Finlay's decision, the four discriminatees standing nearby, excluding miner Williams, approached Finlay personally pursuing their protest with him over asserted unsafe working conditions in the shaft. They insisted that Finlay either transfer them to work in the tunnel or halt the sluicing operation on the nearby embankments before they would return to work in the shaft. Finlay reiterated his position that the only work for them was in the shaft, and when they refused to resume its performance under the existent conditions he chastised them for lack of manly ability. One of the complainants then berated Finlay for questioning their manhood, challenging him to a fight which the latter declined. The dispute was concluded on the note that the four miners, although refusing to return to work, announced they were not quitting and Finlay responding that he was not firing them.⁴ Nevertheless, two of the four miners turned in their equipment consisting of a miner's metal helmet, rain suit, safety boots and harness to the company supply room rather than leaving their issued apparel in the change building as was customary. The four miners, excepting Williams and Foreman Fitzgerald, proceeded to the bottom of the mountain in search of respondent's safety director, but failing to locate him left the construction area and returned to their homes.

Williams and Fitzgerald were sent by Finlay to work in the tunnel, but later they returned to accomplish as much work as possible in the shaft until their normal shift expired at 3:00 p. m., the time for their relief by the swing shift. During the interim Finlay, Palmer and Union Steward Swaringin made an inspection of the shaft atop the second deck of the cage. Only the union steward concluded that conditions therein were unsafe for work.

The swing shift worked in the shaft from 3:00 p. m. November 8 until 11:00 p. m. performing normal enlargement operations, despite the presence of considerable water in the shaft from the sluicing operation on the reservoir embankments above. Subsequently they were relieved by the graveyard shift which continued the work until November 9 at 7:00 a. m., the time for Fitzgerald's day shift to report. Only Fitzgerald and Williams reported for work. They resumed operations by themselves in the shaft for about one hour when they were notified that four new miners had been employed. They enlisted the four new men and returned to the shaft to continue the work until the end of the shift.⁵ This shift's work progress report also noted the entry of water into the shaft's mouth from the sluicing operation.

Before the swing shift on November 9 entered the shaft, Finlay observed sluice water flowing into the mouth of the shaft in sufficient force to dislodge a workman below, and discontinued shaft operations after being advised by the project superintendent that the completion of the upper reservoir had priority. The shaft crews were transferred to work in the tunnel until December 18, 1961, when the work on the shaft was resumed and ultimately completed January 29, 1962.

On Monday, November 13, 1961, respondent's representatives met with the four alleged discriminatees who, accompanied by their union representative, requested reinstatement....