Babcock & Wilcox Construction Co., Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1988

288 N.L.R.B. 620 (N.L.R.B. 1988)

620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Babcock & Wilcox Construction Co., Inc. and
Dennis McCarty and Raymond Paul Davis.
Cases 20-CA-20898 and 20-CA-21027
April 25, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On February 3, 1988, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Respondent filed an exception' and a support-,
ing brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exception and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative laW
judge and orders that the Respondent, Babcock &
Wilcox Construction Co., Inc., Marysville, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
The Respondent has excepted only to the judge's recommended rem-
statement order.
Joseph Norelli, Esq., for the General Counsel.
William A. Ziegler, Esq. (Sullivan & Cromwell), for the
Respondent.
Dennis McCarty and Raymond Paul Davis, for them-
selves.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge.
This proceeding, in which a hearing was held on 27-28
October 1987 is based on unfair labor practice charges
filed against Babcock & Wilcox Construction Co., Inc.
(Respondent) by Dennis McCarty (McCarty) in Case 20-
CA-20898 on 7 January 1987 and by Raymond Paul
Davis (Davis) in Case 20-CA-21027 on 2 March 1987.
The Regional Director for Region 20 of the National
Labor Relations Board (the Board), on behalf of the
Board's General Counsel, issued a complaint in Case 20-
CA-20898 on 26 February 1987 and a complaint in Case
20-CA-21027 on 30 April 1987 and on 30 April 1987
issued an order consolidating these cases for hearing.
The complaint in Case 20-CA-20898, as amended at
the hearing, alleges in substance that Respondent violat-
ed Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act) by discharging McCarty on 26 Sep-
tember 1986 because of his union and/or other protected
concerted activities and violated Section 8(a)(1) of the
Act when its Foreman Monte Manwill on or about 29
September 1986 threatened employees with discharge if
they sought to enforce the collective-bargaining agree-
ment that governed their terms and conditions of em-
ployment. The complaint, in Case 20-CA-21027, alleges
in substance that Respondent violated Section,8(a)(3) and
(1) of the Act by refusing on 6 October 1986 to hire
Davis because of his union and/or other protected con-
certed activities. Respondent filed answers to the com-
plaints in which it denies the commission of the alleged
unfair labor practices 1 and in which, as amended at the
hearing, it alleges as an affirmative defense that the al-
leged unfair labor practices are cognizable under the pro-
visions of the governing contractual grievance-arbitration
machinery and that, under the circumstances, the Board
should defer the exercise of its jurisdiction to the govern-
ing contractual grievance-arbitration machinery.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs of the General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
J. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The setting
Respondent, a Delaware corporation, is a contractor in
the construction industry. During the time material it
was building a powerhouse located in Marysville, Cali-
fornia (the Project). The powerhouse, sometimes referred
to in the record as a boiler, is 175 feet high, 50 yards
long, and 20 yards wide. Respondent's construction
workers, i.e., sheet metal workers, insulators, laborers,
pipefitters, ironworkers, electricians, etc., were represent-
ed by the several construction unions that normally rep-
resent such crafts. The employees' terms and conditions
of employment were established by a collective-bargain-
ing agreement between Respondent and those unions
(the Project Agreement) that by its terms lasted for the
duration of the Project.
Charging Parties McCarty and Davis are journeymen
insulators and members of Local 16. They were em-
ployed by Respondent on the Project: McCarty from 16
July through 26 September 1986 as an insulator foreman
and Davis from 29 August to 1 October 1986 as a jour-
neyman insulator.2
1 Respondent's answers admit it meets one of the Board's applicable
discretionary jurisdictional standards and is an employer engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act Also Respond-
ent's answers admit that International Association of Heat and Frost In-
sulators and Asbestos Workers, Local Union No. 16, AFL-CIO (Local
16), the Union which represents the employees involved in this case, is a
labor organization withm the meaning of Sec. 2(5) of the Act.
2 All dates hereinafter shall refer to the year 1986, unless otherwise
specified.
BABCOCK & WILCOX CONSTRUCTION CO. 621
Local 16 was a signatory to the above-described
Project Agreement. It represented the journeymen and
apprentice insulators employed on the Project and also
represented the insulator foremen, because the Project
Agreement covered foremen as well as journeymen and
apprentices.
Respondent's supervisory chain of command on the
Project, insofar as the insulators were concerned, fol-
lows. Project Manager Ken Null was in charge of the
Project. Immediately subordinate to him was Project Su-
perintendent Ed Frost. Under Frost in the chain of com-
mand were four craft superintendents, one of whom was
Gary Megan, the insulating superintendent. Reporting to
Hargan were the insulating foremen who supervised the
insulators employed on the Project.
During the time material Respondent employed two
insulator foremen, Charging Party McCarty and Monte
Manwill. McCarty was the only insulator foreman on the
job from 16 July to 29 August, when Manwill, who had
been employed on the Project since 21 August as a jour-
neyman insulator, was promoted by Hargan to the posi-
tion of foreman because of the drastic increase in the
number of insulators employed on the Project. Manwill
was designated piping crew foreman with approximately
10 insulators under his supervision and McCarty, as fore-
man, supervised approximately the same number of insu-
lators on his crew.
The complaints allege and Respondent's answers admit
that Manwill in his position as foreman was a supervisor
within the meaning of Section 2(11) of the Act. Re-
spondent contends that McCarty, as was Manwill, was a
supervisor within the meaning of Section 2(11) of the
Act. This contention is supported by the testimony of
McCarty, Hargan, and Manwill to the effect that as fore-
men McCarty and Manwill performed the same supervi-
sory duties and possessed the same supervisory responsi-
bilities and authority. The General Counsel did not rebut
this uncontradicted testimony. Under the circumstances,
I find that Respondent has established that during
McCarty's employment as a foreman, 16 July through 26
September, he was a supervisor within the meaning of
Section 2(11) of the Act.3
2. McCarty's efforts to look at job specifications
During the six prior occasions when McCarty was em-
ployed as a foreman by Respondent on other construc-
tion jobs, there had always been a set of job specifica-
tions available to McCarty so he could determine wheth-
er the insulators under his supervision were doing their
insulation work according to the specifications called for
by the job. Regarding the Project, however, Insulating
Superintendent Hargan testified Respondent did not
maintain a set of job specifications for the insulation
3 Even if McCarty, in certain respects, may have failed to exercise his
supervisory authority to the same extent as Manwill, it would not detract
from the undisputed fact that McCarty possessed the same supervisory
authority as Foreman Manwill, which authority the General Counsel
conceded was sufficient to make Manwill a statutory supervisor. The fail-
ure of a supervisor to exercise Ins supervisory authority does not change
his employment status from that of a supervisor to the status of a rank-
and-file employee. Leonard Niedernter Co., 130 NLRB 113, 114-115
(1961), and cases cited therein.
work. He testified that to be sure the Project's insulation
work was properly done he was guided by a "Brill
book" that had to be used with a set of appropriate plans
to make sense to the reader because, as he further testi-
fied, "[W]ithout breaking out a set of plans, this Brill
book does you absolutely no good."
Local 16 maintains a published "Code of Workman-
ship," setting out procedures for applying insulation,
which was supposed to be strictly adhered to by Local
16's members, unless it had been superseded by written
job specifications. The code states that the responsibility
for adherence to the code "rests with the job foreman as
well as the mechanic who does the work." Local 16's
collective-bargaining agreement with other employers in
the area contains a provision that written instructions of
the employer shall take precedent over specifications, but
that job specifications shall be followed in the absence of
contrary written instructions from the employer. This
provision was not included in the Project Agreement nor
is there evidence Respondent had otherwise agreed to
this provision nor is there evidence that Respondent
agreed to include Local 16's "Code of Workmanship" in
the Project Agreement.
During McCarty's employment as foreman on the
Project, he asked Hargan on numerous occasions to look
at the job specifications for insulation work that the insu-
lators under his supervision were doing. Each time
Hargan told him that there were no specifications avail-
able. McCarty explained to Hargan that he wanted to
check Hargan's instructions against the particular specifi-
cations for the work involved because he thought that
Hargan was directing him to have the insulators he su-
pervised install the installation differently than had been
the case on the other powerhouse jobs on which
McCarty had worked for Respondent as a foreman.
McCarty told Hargan he was afraid that if the work
being done by the insulators was not done according to
the job specifications, that McCarty, as foreman, would
be blamed. On other occasions when Hargan directed
McCarty to have insulators do something that was obvi-
ously incorrect, McCarty asked him to reduce his in-
struction into writing, which Hargan refused to do.
McCarty complained to Local 16's business agent An-
drews several times about Hargan's refusal to supply him
with a set of specifications and about Hargan's refusal to
give him written instructions. Andrews told McCarty to
follow Hargan's instructions and Andrews would try to
straighten out the matter.4
3. McCarty's 26 September layoff
On Friday, 26 September, Respondent employed 22 in-
sulators at the Project. They were supervised by Fore-
4 The above description of McCarty's conversations with Hargan
about the job specifications and his requests that Hargan reduce certain
work instructions into writing are based on the testimony of McCarty,
whose testimonial demeanor was good. Hargan did not deny this testimo-
ny I considered that McCarty's prehearing affidavit did not mention his
efforts to have Hargan show him the job specifications and considered
there is certain language in the affidavit that might warrant the inference
that Hargan had shown lum the job specifications. Nevertheless, I have
credited McCarty's testimony because It was undemed and his testimonial
demeanor was good
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
men McCarty and Manwill, each of whom supervised
approximately 10 insulators. Manwill supekdsed the
"piping crew," the insulators who applied the insulation
to the pipes leading to and from the boiler. The record
also reveals that by the end of the day on 26 September,
Respondent was finished insulating the boiler and that
what remained for the insulators was to insulate the
pipes. It is also undisputed that Insulating Superintendent
Hargan did not expect to have to lay off a single insula-
tor; he believed that when the work on the boiler was
finished on 26 September that the 22 insulators he em-
ployed would continue to be employed applying the in-
sulation to the piping. On 25 September, however,
Hargan was told by Project Manager Null there was in-
sufficient piping work for all the insulators, because Re-
spondent unexpectedly had failed to receive authoriza-
tion to insulate some of the piping, therefore Null in-
structed Hargan to lay off some of the insulators.
On 26 September at approximately 8 a.m. Hargan met
with Foremen McCarty and Manwill in his office. He
told them there would be a reduction in force that day
because the boiler was completely insulated. He stated
that Foreman McCarty would no longer be a foreman,
but would work with the tools as a journeyman. Hargan
asked McCarty and Manwill to get together and make
out a layoff list and to submit that list to him. McCarty
answered by stating that because Manwill would be sti-
pervising the remaining insulators and because McCarty
would be working as a journeyman under Manwill's su-
pervision, that McCarty did not feel he should be in-
volved in making out a layoff list. Hargan stated he
wanted McCarty to get together with Manwill and make
out such a list. McCarty repeated his refusal and Hargan
did not insist. As a matter of fact McCarty did not meet
with Manwill to make out a layoff list, nor did he other-
wise make out such a list.
This description of what occurred at 8 a.m. on 26 Sep-
tember, when McCarty and Manwill met with Hargan,
and the finding that McCarty did not make out a layoff
list, is based on McCarty's testimony, which was contro-
verted by Hargan's testimony, as follows.
Hargan testified that on Monday, 22 September, he de-
cided that the insulation work on the boiler would be
finished by the end of the day on Friday, 26 September,
leaving only the piping insulation, and further testified
that on 22 September he decided that after 26 September
Respondent would employ only one insulator foreman,
Piping Crew Foreman Manwill, who would supervise all
22 of the Project's insulators and that McCarty would
continue in Respondent's employ and work with the
tools under Manwill's supervision. Hargan also testified
that on 22 September he personally informed McCarty
of this decision; he specifically told him that effective
Monday, 29 September, he would be working with the
tools as a journeyman insulator.
Regarding the layoff of insulators, Hargan testified
that on the afternoon of 25 September, after learning he
would have to lay off some of the insulators because of
Respondent's failure to secure releases to do some of the
piping work, he met with McCarty and Manwill and
asked them to "get a list of the personnel on the project
that were basically the least productive." He also testi-
fled that McCarty responded by stating that because
McCarty was not going to be employed as a foreman, he
did not feel he should make such a list, but agreed to do
this after Hargan asked him to "please" do so. Later that
afternoon, according to Hargan, both Manwill and
McCarty brought him separate lists of insulators whom
they had selected as being the least productive. He fur-
ther testified when they handed him their lists there was
absolutely no conversation about the names on the lists;
they simply gave him their lists and left.
I credit McCarty's above-described testimony of what
occurred between McCarty, Manwill, and Hargan on the
morning of 26 September and credit his testimony that
he did not submit a layoff list to Hargan. My reason for
crediting his testimony and rejecting Hargan's is that
McCarty's testimonial demeanor, which was good, was
better than Hargan's, which was poor. In addition, the
testimony of Respondent's witness Manwill failed to cor-
rOborate Hargan's in at least one significant respect and
contradicted him in other respects. Thus, when Manwill
testified about the meeting among himself, McCarty, and
Hargan, where Hargan asked them to submit a layoff list,
Manwill failed to corroborate Hargan's testimony that
McCarty agreed to submit such a list. Indeed at one
point in his testimony, Manwill contradicted Hargan by
testifying that when Hargan asked Manwill to prepare
and submit a layoff list, that McCarty was not present
and that it was Manwill, not Hargan, who "carried the
word to [McCarty] that [Hargan] wants both of us to
make up a list." Manwill gave this testimony during
cross-examination after testifying initially that Hargan
"came to both McCarty and myself' and asked for a
layoff list. I note that Manwill's testimonial demeanor
was poor when he testified about the events surrounding
the 26 September layoff.
In evaluating Hargan's credibility it is also significant
that Manwill testified that Manwill was not informed by
Hargan until the afternoon of 26 September that Manwill
would be the only insulator foreman employed. I find it
unbelievable that if as early as 22 September, Hargan
had decided that effective 29 September Manwill would
supervise all the approximately 22 insulators on the job,
rather than only 10, and on 22 September informed
McCarty of this decision, that Hargan on 22 September
would not have also notified Manwill, whose job would
be drastically effected by Hargan's decision. I am per-
suaded that Hargan's failure to inform Manwill until the
afternoon of 26 September warrants the inference that no
such decision was made as early as 22 September and
that, as McCarty testified, Hargan did not inform him
until the morning of Friday, 26 September, that McCarty
would be employed on Monday, 29 September, as a jour-
neyman, rather than as a foreman. I am also persuaded
that Hargan's failure prior to 26 September to notify
either McCarty or Manwill of his decision to make Man-
will the only insulator foreman and to have McCarty
work with the tools as a journeyman warrants the fur-
ther inference that no such decision was made until 26
September, when Hargan notified McCarty and Manwill
that due to the reduction in force McCarty would no
BABCOCK & WILCOX CONSTRUCTION CO. 623
and that McCarty was being reassigned to work as a
journeyman with the tools. Andrews asked the local
journeymen whose names were on Manwill's layoff list,
whether, as Manwill had represented, they had volun-
teered to be laid off. They answered in the affirmative.
Andrews read off the names of the insulators from Man-
will's list and stated that they were the insulators who
would be laid off. He also stated that because one of the
insulators listed for layoff was Local 16's Project stew-
ard, Dale Wright, that Andrews was appointiag
McCarty to replace Wright as Local 16's steward.
Wright handed his steward's badge to Andrews who, in
turn, handed it to McCarty who pinned it to his shirt.
Manwill then declared that come Monday morning
things were going to change "around there" and stated
that he was not going to put up with any more of
"McCarty's shit." McCarty responded by stating that
what would change on Monday morning was that Fore-
man Manwill would not be able to send old men in the
rain to work under unsafe conditions on wet scaffolding.
Manwill denied having done this. However, both jour-
neyman Wright and apprentice Potter, in response to
McCarty's questions, told Andrews, in Manwill's pres-
ence, that McCarty's accusations were true and that
Manwill had told them to work on wet scaffolding under
unsafe conditions or to take their tools and leave the
Project. Andrews told the insulators that under the law
no worker could be penalized for refusing to work under
unsafe working conditions and if anything like that oc-
curred in the future they should call Local 16. The meet-
ing concluded shortly thereafter.
The above description of what was stated in the em-
ployees' change trailer during the morning of Friday, 26
September, is based on a composite of the testimony of
McCarty and Andrews that in certain significant respects
was corroborated by the testimony of insulator Gary
Davis, who entered the trailer with the other insulators
at the 10 a.m. coffeebreak. Their testimony was contro-
verted by Manwill's testimony in all significant respects,
as follows.
Manwill places the meeting as occurring during the
employees' lunchbreak, rather than their coffeebrealc. He
testified that Andrews asked him about the layoff and
that he replied by stating there was going to be a layoff
and that when Andrews asked who would be laid off,
Manwill told him that the only people he knew would be
laid off for sure were those who had volunteered for
layoff, namely, Freeman, Duncan, and Wright. Manwill
further testified that he did not at that time have in his
possession a list of the employees who had been selected
for layoff, and also denied having a discussion about
whether the apprentices had volunteered for layoff.
Manwill further testified that Andrews stated that, be-
cause Wright had volunteered for layoff, McCarty
would be the new steward, but denied that Wright's
steward badge was handed to McCarty. Also Manwill
denied that, after hearing Andrews say that McCarty
would be the new steward, Manwill expressed the
above-described remarks attributed to him by the testi-
mony of McCarty, Andrews, and Davis. He also denied
their further testimony that there was a discussion about
longer be foreman on 29 September, but would be work-
ing with the tools under Manwill's supervision.
To sum up, I find that at 8 a.m. on 26 September
Hargan notified both Manwill and McCarty that because
the boiler was completely insulated there would be a re-
duction in force that day, that due to this reduction in
force McCarty would be reassigned the next workday
from his position as foreman to the position of journey-
man insulator, asked McCarty and Manwill to get to-
gether and submit a single list of employees for layoff,
but when McCarty refused to help make out such a list
did not press this request insofar as McCarty was con-
cerned, and McCarty did not in fact meet with Manwill
to make out a layoff list or otherwise make out such a
list.
On 26 September, shortly after the above-described 8
a.m. meeting in Hargan's office among McCarty, Man-
will, and Hargan, McCarty encountered Local 16's busi-
ness agent, Willard Andrews, who was at the project to
meet with management to discuss an employee's griev-
ance. McCarty advised Andrews there would be a layoff
of insulators that day and that he was being reassigned to
work with the tools.
Later that morning, after the conclusion of his griev-
ance meeting, Andrews met with McCarty and Manwill,
sometime between 9:30 and 10 a.m., in the employees'
change trailer. When they entered the change trailer
Manwill was sitting at a table with a piece of paper in
front of him containing a list of names and was looking
through employees' timesheets. In response to Andrews'
question, Manwill acknowledged there would be a layoff
of insulators that day and stated that seven insulators
would be laid off. In response to Andrews' further in-
quiry, Manwill stated that the seven had already been se-
lected and showed Andrews the piece of paper he had
before him that contained the names of seven insulators:
apprentices McLaughlin and Wray and journeymen
Wright, Freeman, Duncan, Matte, and Blanchard. Matte
and Blanchard were travelers, whereas the other five
were members of Local 16. Andrews asked what McCar-
ty's position would be after the insulators had been laid
off He noted that McCarty had been supervising the
boiler crew and that the insulation work on the boiler
was now complete. Manwill responded by stating that
McCarty was being reassigned to work with the tools as
a journeyman. Andrews also asked why Manwill was
laying off local people when there was still one traveler
employed on the job. Manwill responded by stating that
all the local people named on the list had volunteered to
be laid off. McCarty questioned whether apprentices
McLaughlin and Wray had asked to be laid off. After
leaving the change trailer momentarily to determine
whether this was so, Andrews and McCarty returned
and Andrews advised Manwill that McLaughlin and
Wray had denied they had volunteered to be laid off,
whereupon Manwill scratched their names from the list.
Andrews then asked Manwill whether this was the com-
plete or fmal layoff list. Manwill assured Andrews that it
was.
At this point in time the Project's insulators came into
the change trailer for their 10 a.m. coffeebreak. Andrews
told the insulators that there would be a layoff that day
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether Manwill had assigned insulators to work on
scaffolding in the rain under unsafe working conditions.
I rejected Manwill's testimony because his testimonial
demeanor was poor, whereas McCarty's and Andrews'
testimonial demeanor was good when they testified about
the events of 26 September. Moreover, McCarty's and
Andrews' testimony concerning what was stated in the
change trailer on 26 September was mutually corrobora-
tive in virtually all significant respects and in no case did
they contradict one another and in certain significant re-
spects their testimony was corroborated by Davis' testi-
mony.
On 26 September at approximately 1 p.m. Manwill
spoke to McCarty and told him he no longer would have
to worry about any of the local people being laid off
while there was still a traveler employed on the Project,
because Malone, the remaining traveler on the Project
was number 6 for layoff and that McCarty was number 7
for layoff and stated, "[P]ick up your shit and get the
fuck off my job." McCarty did not leave right then,
however, but waited for his paycheck and left the
Project with the rest of the laid-off workers.
The aforesaid description of what Manwill said to
McCarty when he notified -him about his layoff is based
on McCarty's testimony. Manwill denied making any of
these remarks. Rather he testified he simply told
McCarty he had been laid off and to pick up his tools
and gave him his paycheck. Malawi11 also testified that,
before McCarty left the Project that day, McCarty spoke
to some of the insulators who had not been laid off and
told them he had been laid off and also told them he
thought "the whole crew should walk with him." Man-
will, according to his testimony, reminded the insulators
that such a work stoppage would violate the terms of the
Project Agreement. Initially Manwill was unable to
recall where McCarty was when McCarty made this
statement, but later testified that McCarty made it while
speaking to the employees in the change trailer. Manwill
was not able to remember the name of any one of the
insulators to whom McCarty and Manwill spoke to on
this occasion.
I reject Manvvill's above-described testimony in its en-
tirety and credit McCarty's description of what was
stated to him by Manwfil when Manwill notified him of
his selection for layoff. My reason for doing so is that
Manwill's testimonial demeanor was poor, whereas
McCarty's was good. I recognize McCarty did not deny
Manwill's testimony that, after Manwill had told
McCarty he was being laid off, McCarty told some of
the insulators that he thought "the whole crew would
walk with him." Nevertheless, because of Manwill's poor
testimonial demeanor and because, as I have found, infra,
Manwill falsely testified that on another occasion
McCarty asked insulators to engage in a work stoppage
over an employee's termination, I reject his further testi-
mony that on this occasion McCarty attempted to per-
suade insulators to stop work and walk off the job be-
cause of his termination.
On 26 September, shortly after Manwill told McCarty
he had been laid off, insulator Gary Davis, who had
heard about McCarty's layoff, spoke to Manwill and
asked, "What's going on?" 5 Manwill responded by stat-
ing, "I'm not going to let nobody talk to me like that, in
that manner." When Davis asked, "In what manner?"
Manwill stated, "in the change trailer during coffee
time." Davis pointed out to Manwill that what had oc-
curred in the change trailer earlier that day during cof-
feebreak among Andrews, McCarty, and Manwill "was
not personal, that was a Union affair, a Union business
affair, and that at no time was none of that personal."
Manwill responded, "I'm not going to let anybody talk
to me like that." The conversation ended with Davis
stating and Manwill denying that Manwill had a personal
vendetta against Local 16 because he had been removed
from his position as Local 16's business manager and was
taking it out on the membership. 6 I am of the opinion
that when viewed in the context of what occurred in the
change trailer earlier that day during coffeebreak
period—which has been described in detail, supra—Man-
will's statement that he was not going to let anyone talk
to him as the way he had been talked to in the change
trailer during coffeebreak was an obvious reference to
the way in which McCarty had spoken to him during
the earlier coffeebreak.
As will be discussed in more detail infra, immediately
following his 26 September layoff, McCarty went to
Local 16 and filed a contractual grievance against Re-
spondent protesting his termination. The next workday,
Monday, 29 September, Local 16's business agent An-
drews visited the Project to discuss McCarty's grievance
with management.
Andrews arrived at the Project just before starting
time and shortly thereafter spoke to Insulator Foreman
Manwill and Insulating Superintendent Hargan separate-
ly. He told them he was there to talk about McCarty's
layoff. Manwill responded by stating that Andrews was
wasting Andrews' time because McCarty was not going
to be put back on the job. Hargan responded by stating,
"He [Hargan] did not have anything to do with that [re-
ferring to McCarty's layoff], that he'd told Monte [Man-
will] to lay off seven people, and he did not understand
where the five came in at."7
Later that same morning Andrews met with Project
Manager Null and Project Superintendent Frost and they
discussed McCarty's termination. Andrews told them
that Local 16 believed that because McCarty was Local
16's Project steward that Respondent had violated the
Project Agreement when it laid him off. Null responded
5 The description of Davis' conversation with Manwill is based on
Davis' credible testmiony that Manwill did not deny
6 The record reveals that after having held the position of Local 16's
business manager for several years, Manwill, in 1985, was forced to
resign from that position
'The above description of Andrews' 29 September conversations with
Manwill and Hargan is based on the testimony of Andrews, whose testi-
monial demeanor was good. Manvvill did not deny the remarks attributed
to him. However Hargan testified that Andrews initiated the conversa-
tion with him by accusmg bun of laying off seven rather than five insula-
tors in order to lay off McCarty, that when Hargan denied this and ex-
plained that the original plan was to lay off seven insulators and that
seven were in fact laid off, Andrews warned Hargan if liars= wanted to
play games that Local 16 could also play games. I credited Andrews' tes-
timony rather than Hargan's because Andrews' testimonial demeanor,
which was good, was better than Hargan's, which was poor.
BABCOCK & WILCOX CONSTRUCTION CO. 625
by stating that they were not aware McCarty was job
steward and if they had known they would not have laid
him off, but because he had already been laid off they
were going to let the layoff stand, as they "did not feel it
was in their best position for [McCarty] to be the job
steward," but if Respondent ever needed to employ addi-
tional insulators at the Project, they stated they would
have no objections to having McCarty back on the job.
Null complained to Andrews that McCarty had been
talking to the customer on the jobsite and had been ques-
tioning the job specifications and the workmanship of the
work being done on the job. Also either Null or Frost
stated that McCarty was the cause of a lot of "labor dif-
ficulties on the job" involving the insulators. Andrews
replied by stating he was unaware of any labor difficul-
ties occurring at the Project prior to Manwill being
made foreman and, with respect to the statement that
McCarty had questioned the workmanship on the job,
told Null and Frost that several of the insulators had
complained to Andrews about the way the insulation
work was being don; that they did not feel the job spec-
ifications were being followed and had mentioned to him
that the work was "shoddy." Frost replied that, if An-
drews wanted to engineer the job and guarantee it, he
should be Frost's "guest." Andrews declined the offer
and stated that Local 16's position was that the work
being done on the job should be done correctly and ac-
cording to the job specifications. This ended the meet-
ing.8
4. Davis replaces McCarty as Local 16's Project
steward
Raymond Davis, a journeyman insulator and a
member of Local 16, began work 29 August at the
Project. On the morning of 29 September Local 16's
business agent Andrews, after meeting with Project Man-
ager Null and Project Superintendent Frost to discuss
McCarty's termination, went to where Davis was work-
ing at the Project and appointed him Local 16's steward
in place of McCarty and gave him a steward button that
he pinned on. Andrews also told Davis to locate and
look at a set of specifications for the insulation work
being done and to make sure that the work was being
done according to the job specifications. Andrews did
not explain his reasons for wanting Davis to do this.
Davis did not ask for an explanation because he felt it
was important to check the insulation work against the
specifications inasmuch as he believed the insulation
work was not being done correctly due to incorrect in-
structions from supervisors and also thought the way the
insulators were being instructed to do their work would
result in the loss of work to the sheet metal workers.
This was something that the insulators had previously
discussed among themselves.
On 29 September, shortly after Andrews appointed
Davis to be Local 16's steward, Foreman Manwill came
to Davis and told him he had heard Davis had been ap-
pointed steward. Davis acknowledged this was true and
told Manwill he would like to see the job specifications.
8 The description of Andrews' above-described meeting with Null and
Frost is based on Andrews' credible testimony that was not denied
Manwilf replied by stating, "Remember what happened
to the last guy that asked too many question's." When
Davis asked, "What do you mean?" Manwill did not
answer; he laughed. Subsequently, approximately 1 hour
later during lunchbreak, Manwill told Davis that Insulat-
ing Superintendent Hargan would show him the specifi-
cations.9
When Davis, with Manwill, entered Hargan's office on
29 September, Hargan asked why Davis "wanted to go
through this again." Davis replied he had not previously
spoken to Hargan about the specifications and wanted to
see them. Hargan replied by stating, "he had felt bad at
what had happened." Davis asked, "meaning what?"
Hargan answered that "he did not want to step on any-
body's feet." Davis repeated that he wanted to see the
specifications. Hargan asked why. Davis told him that
the insulators had requested it. Hargan told him there
were no specifications. Davis stated that if that was Har-
gan's answer, that Davis would communicate it to Local
16. Hargan then stated he would show Davis "what he
had" and showed him a "diagram piping book," which is
known as the Brill book. It is not a set of specifications,
but consists of diagrams showing the way insulation
should be applied on the job and, as noted supra, makes
no sense without a set of plans.1°
5. Davis quits his employment
On 1 October Davis quit his employment at the
Project. There is a dispute about what occurred when he
quit.
Foreman Manwill testified that on 1 October Davis
and Littlejohn, another insulator who commuted to and
from work with Davis, arrived for work a little late and
while they changed into their work clothes were told by
Manwill they had better start getting to work on time.
When Davis replied that it was a long drive, Manvvill
told them they would just have to make allowances for
the long drive and leave for work earlier each morning.
Manwill further testified that when the employees came
out from the change trailer, Manwill assigned Davis to
work with Howard Johnson, that Davis refused to
accept the assignment to work with Johnson whom
Davis called a "fucking retiree," Manwill testified that,
when he insisted Davis work with Johnson, Davis re-
9 The description of Manwill's 29 September conversations with Davis
is based on Davis' testimony. Manwill testified that when Davis asked to
look at the specifications, Manwill told him there was only the Brill book
and that Manwill took Davis to Hargan's office and Hargan showed hun
the Brill book. Manwill denied telling Davis, "Remember what happened
to the last guy who asked too many questions" or words to that effect. I
have credited Davis' and rejected 'Manwill's testimony because Davis'
testimonial demeanor was better than Manwill's, which was poor.
10 The description of Davis' 29 September conversation with Hargan
is based on Davis' testimony. Hargan testified that when Davis asked to
see the specifications that he promptly showed him the Boll book and
usmg the diagrams in that book tried to explain to Davis what Davis had
expressed concern about. Hargan denied he responded to Davis' request
to see the specifications by stating he was sorry about what had hap-
pened. He also denied telling Davis that he did not want to step on any-
one's feet I have credited Davis' testimony and rejected Hargan's be-
cause Davis' testimonial demeanor was better than Hargan's, which was
poor.
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
moved his safety belt and threw it across the yard and
told Manwill, "I quit."
Insulating Superintendent Hargan testified he waS in
the vicinity of the change trailer at the start of the work-
day on 1 October, when he observed Davis come out of
the change trailer looking very upset. He further testified
that he overheard Foreman Manwill assign Davis to
work with Johnson and Davis refused the assignment.
Hargan further testified he heard Davis tell Manwill he
was not going to work with a "fucking retiree" and that,
when Manwill said something else to Davis, Davis told
Manwill he quit and went back into the change trailer.
Hargan testified Hargan followed Davis into the change
trailer and asked him "to please calm down" and go
back to work, but that Davis replied by stating he was
not going to work with Manwill, whom he called a "son
of a bitch," and picked up his tools and left the Project.
Davis testified that when he arrived for work on 1 Oc-
tober, Manwill stated something to the effect that Davis
and the other insulators with whom he commuted to and
from work would have to start getting there a little earli-
er. Davis testified that the reason he quit that morning
was he felt Manwill had unfairly singled him out for
being late. Davis denied telling Hargan that he was not
going to work with Manwill and also denied telling
Manwill that he would not work with Johnson. Rather
he testified that Manwill did not assign him to work with
Johnson, but assigned him and Littlejohn to work to-
gether doing the work they had been doing the previous
workday.
In evaluating the above-described disputed testimony
concerning the events of 1 October, I considered that
Davis' testimonial demeanor was better than Manvvili's
and Hargan's, which was poor.
Also relevant in evaluating the conflicting testimony is
the 7 November memo prepared and signed by Insulat-
ing Superintendent Hargan that described what occurred
on 1 October when Davis quit. This memo reads as fol-
lows:
The reason Ray Davis quit was that morning he
had come to work a few minutes late Monte Man-
will told him that he was going to have to leave
home a little earlier so that he could get to work on
time. At this time Ray Davis replied we had to con-
sider how far he had to drive to work everyday in
a ragging manner.
When Mr. Manwill told Mr. Davis he was going to
work with Howard Johnson with Mr. Davis reply-
ing he was not going to work with a retiree and
that he quit. Sec.5-1 The employer shall have the
right of rejection. Company policy not to rehire for
30 days after quit.
Hargan prepared and submitted this memo to Eddie
Story, an organizer for Local 16's International Union, in
response to Story's investigation of the grievance against
Respondent filed by Davis with Local 16 concerning Re-
spondent's 6 October refusal to rehire him, when he was
dispatched to the Project by Local 16. In the 7 Novem-
ber memo Hargan did not mention Davis' statement that
he would not work under Manwill's supervision. Hargan
failed to mention it even though, as described infra,
Hargan and Manvvill testified in effect that one reason
Respondent refused to employ Davis on 6 October was
because when Davis quit he had also told Hargan he
would not work under Foreman Manwill's supervision.
Considering the significance to Respondent of this state-
ment, I fmd it difficult to believe that if the statement
had been made by Davis to Hargan, that Hargan would
have omitted it from his 7 November memo. Hargan, a
witness for Respondent, failed to explain this omission
from the memo.
Also relevant in evaluating whether on 1 October
Davis stated he would not work under Foreman Man-
will's supervision and refused to obey Manwill's job as-
signment is that in certain significant respects Hargan's
testimony concerning those matters is inherently incredi-
ble. It is unbelievable that after hearing Davis refuse to
obey the work assignment of his immediate supervisor,
Foreman Manwill, that Hargan would have followed
Davis into the change trailer for the purpose of pleading
with him to go back to work and to change his mind
about quitting. Davis' act of gross insubordination would
normally be grounds for his discharge. Indeed Foreman
Manwill volunteered the testimony that, if Davis had not
quit on 1 October, Manwill would have discharged him
for being insubordinate. Hargan failed to explain why,
despite his knowledge that Davis had been grossly insub-
ordinate to his foreman, Hargan followed him into the
change trailer and pleaded with him to return to work."
Hargan's failure to explain this unusual conduct, coupled
with his failure to explain his omission in the 7 Novem-
ber memo of Davis' alleged refusal to work under Fore-
man Manwill's supervision, warrants the inference that
Hargan fabricated his testimony that he followed Davis
into the change trailer to persuade him not to quit, at
which time Davis stated he would not work under Man-
will's supervision.
Also significant in evaluating Hargan's credibility con-
cerning his testimony that Davis told him that he would
not work under Manwill's supervision is the fact that
Hargan and Manwill gave conflicting testimony as to
when Hargan told Manwill that Davis said this. Manwill
testified that he was informed by Hargan about this
sometime prior to 6 October and testified that it was be-
cause of this knowledge that on 6 October, when he ob-
served that Davis had been referred to the Project by
Local 16, he went to Hargan's office and asked Hargan
whether they should refuse to employ Davis. Hargan, on
the other hand, testified in effect that it was on 6 Octo-
ber when Manwill came to his office and asked what
they should do about Davis that he told Manwill that
Davis had stated he would not work for Manwill and
told Manwill that because of this he did not think Re-
spondent should employ him.
Considering that Davis' testimonial demeanor was
better than Manwiffs or Hargan's; considering Hargan's
failure in his 7 November memo to indicate that Davis
had told him he would not work under Foreman Man-
" I also note, as described infra, that for some unexplained reason this
alleged insubordination played no part m Respondent's decision on 6 Oc-
tober to refuse to rehire Davis
BABCOCK & WILCOX CONSTRUCTION CO. 627
will's supervision; considering the inherent implausibility
of Hargan's testimony that, after observing Davis acting
grossly insubordinate toward Foreman Manwill, Hargan
followed him into the change trailer and pleaded with
him to return to work and not quit; considering the in-
consistency in Hargan's and Manwill's testimony as to
when Hargan informed Manwill that Davis had stated he
would not work under Manwill's supervision; and con-
sidering Respondent's failure in connection with its refus-
al to employ Davis on 6 October to indicate the refusal
was based even in part on Davis' alleged refusal to obey
Foreman Manwill's work assignment, it is for all these
considerations that I am persuaded that when Davis quit
his employment at the Project on 1 October that he did
not refuse to obey Manwill's work assignment or tell
Hargan that he would not work under Manwill's super-
v ision.12
.6. Respondent's 6 October refusal to hire McCarty
and Davis
On 6 October, pursuant to a request from Respondent
,TA3 dispatch two or three insulators from its hiring hall to
title Project, Local 16 dispatched McCarty and Davis."
They arrived at the Project on 6 October at the start of
the workday and reported to the office of Respondent's
timekeeper that was in the same trailer as Project Man-
ager Null's office. They were outside of that trailer in
front of the window of the timekeeper's office waiting
for the timekeeper to process the paperwork necessary
for their employment when Foreman Manwill ap-
proached them and asked what they were doing there.
He was informed by one of them that they had been re-
ferred by Local 16 to the job in response to Respond-
ent's request for insulators. Manwill answered by stating,
"We'll see about that" and told them they had wasted
their time by making the trip out to the Project because
they were not going to work there. Manwill then walked
into the timekeeper's office and instructed the timekeeper
that McCarty and Davis "are not going to work,"
whereupon the timekeeper took back from McCarty and
Davis the paperwork she had given them to fill out.
McCarty and Davis then entered the trailer and, with
12 I considered the record reveals that Davis' reliability as a witness in
certain respects is suspect; he at first denied having discussed his testimo-
ny prior to the hearing with counsel for the General Counsel, but there-
after admitted he had done so, he falsely testified there was a space or
box on his 1 October termination slip that Respondent could have
checked to indicate he was not eligible for rehire, and he testified he was
unable to remember ever authorizing the Board's Regional Director to
withdraw his charge in Case 20-CB-7I79 filed against Local 16's Interna-
tional Union, despite the fact that counsel for the General Counsel repre-
sented that the Board's file in that case contains a sworn statement from a
Board agent stating that Davis had verbally authorized the Regional Di-
rector to withdraw that charge. In crediting Davis', rather than Hargan's
and Manwill's testimony, I have considered these circumstances, but for
the reasons set forth previously I am persuaded that Davis was a more
credible witness than either Manwill or Hargan.
13 Under the terms of the Project Agreement Respondent was obhgat-
ed to hire applicants for insulating work through Local 16's hiring facih-
ty, provided that Local 16 referred the applicants within 48 hours from
Respondent's request. Respondent had the contractual right to reject any
of the applicants referred
the permission of Insulating Superintendent Hargan, 14
Davis used one of the telephones there to phone Local
16's business agent Andrews to tell him what had hap-
pened to himself and McCarty when they reportA for
work. In the meantime, McCarty overheard Manwill,
who was standing in the doorway to Null's office, loudly
stating to Null that he did not want McCarty or Davis
on his job. Null remarked that McCarty had worked for
him previously and asked Manwill what the problem
was. Manwill replied that McCarty and Davis were
"troublemakers" and he did not want them on the job.
Null responded by stating that because Manwill was the
foreman that if he did not want McCarty and Davis
working under his supervision, that Null would abide by
his decision. About this point in time, Davis, who had
been using the telephone in the trailer to speak with busi-
ness agent Andrews, turned the phone over to McCarty
who spoke to Andrews. Davis, in the meantime, went
into Null's office and showed him the separation slip,
which had been given to him by Respondent on 1 Octo-
ber when he quit his employment at the Project. Davis
stated to Null that nowhere on the termination slip did it
say that Davis was not eligible for rehire. McCarty, at
this point, told Null that business agent Andrews wanted
to speak to him Null stated he did not want to speak
with Andrews and stated that if Andrews had problems
concerning Respondent he should just file another griev-
ance. Manwill ordered Davis and McCarty to leave or
he would have them arrested. McCarty stated that he
felt that he and Davis were entitled to receive 2 hours of
showup time" and were also entitled to an explanation
for Respondent's refusal to employ them. Manwill
screamed that if they did not leave he would call the
police and have them arrested. McCarty asked whether
this was Respondent's position, Null stated, "yes," and
McCarty and Davis left the trailer and the Project.
The above description of what happened on 6 October
when McCarty and Davis were dispatched by Local 16
to the Project is based on a composite of McCarty's and
Davis' testimony. Foreman Manwill's testimony contra-
dicted Davis' and McCarty's in several significant re-
spects, as follows. He denied speaking to McCarty and
Davis while they were outside of the trailer at the time-
keeper's office window. He testified that when he spoke
to Project Manager Null, he told Null that McCarty and
Davis were on the jobsite having been referred for work
by Local 16 and that Manwill and Hargan recommended
that Respondent not employ either of them Manwill fur-
ther testified that at this point, McCarty and Davis, who
had followed him into the trailer, spoke to Null, but
Manwill was unable to remember what they stated to
Null. He also testified Null spoke to Davis and McCarty,
but was also unable to remember what Null stated to
them. Manwill denied telling Null that Davis and
McCarty were "troublemakers," but admitted telling
14 The record reveals that on 6 October Hargan had only momentarily
entered the trailer where Null's and the timekeeper's offices were located
and was not present there on 6 October during the times material.
' 5 The Project Agreement provides that "[Alny employee reporting
for work and for whom no work is provided-shall receive pay for two
(2) hours at the appropriate rate for so reporting."
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Null that he thought they would create a "problem" if
they returned to the job and further testified he also told
Null that McCarty, but not Davis, probably had 2 hours
of showup time coming to him because of Respondent's
refusal to employ him, and that at this point Davis "went
into a threatening motive with Kenny Null" and that
Null directed Manwill to get Davis and McCarty out of
his office, and that when Manwill asked them to leave
that Davis tried to use one of the telephones in the trail-
er and when Manwill told him to use a phone down the
road that Davis threatened to "get" Manwill and threat-
ened to shoot him.
I have credited McCarty's and Davis' testimony about
what occurred on 6 October when Local 16 dispatched
them to the Project and rejected Manwill's testimony,
because Manwill's testimonial demeanor was poor,
whereas Davis' and McCarty's was good when they tes-
tified about those events. I also note that although
Project Manager Null was involved in some of the
events of 6 October and although it appears he was still
in Respondent's employ at the time of the hearing,"
Null did not testify. Under the circumstances, and con-
sidering the fact that Null is a member of management,
Respondent's failure to call him as a witness warrants the
inference that he would have testified adversely to Re-
spondent about the events that occurred on 6 October.
See International Automated Machines, 285 NLRB 1122
(1987).
7. Respondent's reasons for McCarty's layoff
McCarty was employed on the Project as an insulator
foreman from 16 July through 26 September, when, as
described in detail supra, he was laid off with six other
insulators. He has been a journeyman insulator for at
least 20 years and had been previously employed by Re-
spondent as an insulator foreman on approximately six
different jobs that involved the insulation of power-
houses and turbines. He was never terminated by Re-
spondent for any reason other than for lack of work.
Respondent's Project Insulating Superintendent
Hargan, who was McCarty's immediate supervisor, testi-
fled he was dissatisfied with McCarty's work as foreman
for the following reasons: McCarty was insubordinate
and abusive toward Respondent's Sheet Metal Superin-
tendent Jackie Smith; McCarty was responsible for work
stoppages; the insulators McCarty supervised did not
start work on time; McCarty had "bull sessions" during
working time with the insulators he supervised; and
McCarty failed to follow Hargan's instructions concern-
ing job assignments. Hargan further testified he was the
one who selected McCarty to be one of the insulators in-
cluded in the 26 September layoff and that his reason for
selecting McCarty for layoff was that on 25 September,
when Project Manager Null instructed him to lay off
several insulators, Null specifically told him to lay off
one of the two insulator foremen. Hargan testified that
he selected McCarty for layoff, rather than Foreman
Manwill, because of the above-described problems he
had experienced with McCarty's work as foreman.
16 In its answers to the complaints Respondent admitted that Null was
still in its employ.
Hargan, in support of his testimony that McCarty was
insubordinate and abusive to Respondent's Sheet Metal
Superintendent Smith, testified about three specific in-
stances. Once Hargan overheard McCarty tell Smith
over the walkie-talkie radio "to get his goddam sheetme-
tal out of my way" and that when Hargan went to
where McCarty was working he found there were no
problems because Smith had kept the job clean. On an-
other occasion, McCarty spoke to Hargan in Smith's
presence and told Hargan that the insulators whom he
supervised thought that the sheet metal workers were
doing their work and stated that Smith was a "Texas
mother fucking scab" and when Hargan told McCarty to
"stay out of [Smith's] face," McCarty left. On the third
occasion McCarty, in the presence of Hargan and Smith,
yelled that the sheet metal workers were doing the insu-
lators' work and swore at Smith and when Hargan asked
him to "please quit," McCarty left. Other than as de-
scribed above, it is undisputed that Hargan did not criti-
cize McCarty for engaging in the aforesaid conduct.
McCarty denied using abusive language when he
spoke to Smith over the walkie-talkie radio, but testified
that one day in September he discovered his crew was
unable to do their work assignment because the area
where they were assigned to work was covered with
metal with sharp edges that had been left there by the
sheet metal workers and that this made it impossible for
McCarty's crew to work without the risk of injury, so,
McCarty testified he called Hargan, not Smith, over the
walkie-talkie radio and told him about the unsafe work-
ing conditions and asked him to have Smith clean it up
before the insulators started to work. McCarty further
testified that the only other time he was involved in a
dispute with Smith was in August when Smith moved
two of McCarty's crew from their assigned work sta-
tions, without consulting McCarty, and that McCarty re-
sponded by informing Smith that if he wanted to move
McCarty's men that Smith should go through proper
channels and testified that he also complained about this
to both Project Superintendent Frost and Hargan, both
of whom agreed that his complaint was meritorious.
Hargan in support of his testimony that McCarty was
responsible for work stoppages testified about two inci-
dents; one where Foreman Manwill told him McCarty
was responsible for a work stoppage and another one
where Hargan personally observed the work stoppage.
Regarding the incident that Foreman Manwill brought
to his attention, Hargan testified that Manwill told him
that when Manwill was talking to Sheet Metal Superin-
tendent Smith at a layout table and showing- Smith how
to lay out a "conical," that McCarty brought his crew
over to the edge of the boiler and they stood there for
"just a few minutes" observing what Manwill and Smith
were doing down below at the layout table. Hargan testi-
fied he did not speak to McCarty about this incident.
When asked what his reason was for not speaking to
McCarty about this work stoppage, Hargan testified that
because the matter involved Foreman Manwill showing
Smith how to do insulators' work that he felt it was a
"union matter" and not a matter for Hargan to be in-
volved with. Hargan further testified that although the
BABCOCK & WILCOX CONSTRUCTION CO. 629
matter of the insulators having stopped. work to observe
Manwill and Smith at the layout table was a matter for
Hargan because it constituted a work stoppage, that he
was unable to explain why he did not speak to McCarty
about it.
McCarty testified that during the third or fourth week
in September, insulator apprentice Pat McLaughlin,
Local 16's president, asked McCarty to go to the side of
the boiler with him and when McCarty, McLaughlin,
and other insulators who had been working on the boiler
went to the side of the boiler and looked down on the
layout table below, they observed Foreman Manwill
helping Sheet Metal Superintendent Smith work on a
"conical" that was work usually performed by the insula-
tors and that had previously been performed on the
Project by the insulators. It is undisputed that later that
day McCarty asked Manwill what he had been doing at
the layout table with Smith and told Manwill that to
McCarty and the other insulators who had observed
them, it had looked as if Manwill was helping Smith lay
out a conical, which was insulators' work, and cautioned
Manwill about doing this."
Regarding the work stoppage that Hargan personally
observed take place, he testified as follows. On a date
Hargan was unable to recall, after having terminated
Gary Reed for excessive absenteeism, Hargan notified'
Reed's foreman, McCarty, about the termination.
McCarty responded by stating Reed was absent from
work because of injuries suffered as the result of a motor
vehicle accident and at that point went on a "rampage."
He stated that Hargan had fired his best friend, that he
was tired of Hargan's "shit," and told Hargan, "I quit."
Also insulator apprentice Pat McLaughlin at this time
told Hargan, "I quit also." Hargan asked McCarty to re-
consider quitting, stating he wanted him to remain on the
Project." McCarty ignored this request and went out of
Hargan's sight up into the boiler where insulators were
working and within 5 or 10 minutes 8 or 10 of the insula-
tors came out from the boiler and asked Hargan whether
it was true he had terminated insulator Reed. McCarty
also came out of the boiler and Hargan again asked him
not to quit. McCarty called Hargan a "fucking scab from
Los Angeles" and accused him of taking food from the
mouths of McCarty's children by being on the Project.
McCarty also called Foreman Manwill, who was
present, a thief who had taken money from McCarty's
pockets in the past. Eventually one of the insulators
calmed McCarty down and he agreed to remain on the
job until Local 16's business agent Andrews came to the
Project. liargan further testified that the aforesaid work
17 It is also undisputed that following this incident McCarty and other
insulators filed intraunion charges with Local 16 against Manwill, who is
a member of Local 16, accusing him of helping Sheet Metal Superintend-
ent Smith do insulators' work. Manwill, however, did not learn of these
charges until after McCarty's 26 September termination.
18 Hargan testified that his reason for asking McCarty to reconsider
quitting and to remain as foreman was that when McCarty first was em-
ployed on the Project in July, he told Hargan that in the event he was
filed or laid off, "he would take the employees, that they would walk out
with him." FLargan did not place McCarty's alleged threat in context.
McCarty denied making this threat. I credit McCarty's denial inasmuch
as McCart3r's testimonial demeanor, which was good, was better than
Hargan's, which was poor.
stoppage lasted between 1-1/2 hours and further testified
that although he did not believe that McCarty had gone
into the boiler and told the insulators to stop work, that
he did believe McCarty was responsible for the work
stoppage to the extent that McCarty had told the insula-
tors that Reed had been terminated." Hargan testified
he never spoke to McCarty or criticized him about his
aforesaid conduct and that the day after the incident
McCarty apologized for making the above-described de-
rogatory remarks about him and that Hargan accepted
his apology.
McCarty's description of the events leading up to the
above-described work stoppage follows. On 5 September
Hargan told McCarty that Project Superintendent Frost
had sent a telegram that morning terminating Reed for
absenteeism. McCarty reminded Hargan that he had pre-
viously informed Hargan that due to injuries suffered in
a motor vehicle accident that Reed had notified
McCarty he would be absent from work for a few days.
Hargan replied that he had no control over Reed's termi-
nation because Frost had reviewed the attendance
records of all crafts and had terminated everyone with
an absenteeism record. McCarty further testified that at
this point the conversation was not a heated one, but tes-
tified that then apprentice McLaughlin walked up to
them and accused Foreman Manwill of giving preferen-
tial treatment to another apprentice by the name of Mas-
singale. McLaughlin told Hargan that even though Mas-
singale had been caught sleeping on a material pile
during working time, that Manwill had assigned him to
work with the tools ahead of other apprentices, includ-
ing McLaughlin, who were more experienced. McCarty
mentioned that Local 16's Project steward Wright had
stated he had found Massingale asleep on a material pile.
Hargan responded by stating he could not do anything
about the matter because it was Foreman Manwill's re-
sponsibility. McLaughlin then argued with Hargan about
this matter, which ended with McLaughlin stating he
was quitting. McCarty took McLaughlin's side of the ar-
gument, pointing out that McLaughlin had been working
hard on the Project, unloading trailers and hauling mate-
rials, and it did not seem fair that another apprentice
who had been found asleep during working time was re-
ceiving preferential treatment. McCarty concluded by
stating that because of his dissatisfaction with the way in
which Hargan was running the job and because Hargan
was not going to do anything about Massingale sleeping
on the job, or about the fact that the best helper on the
job was quitting, or about Reed's termination, that "I
Manwill, Respondent's witness, testified that when McCarty went
through the boiler on this occasion, that McCarty told the insulators
working there, "that son-of-a-bitch from L.A. laid off Gary Reed and
let's walk this job, wobble this job in support of him." It is undisputed
that Manwill did not relay this information to Hargan. McCarty denied
engaging in this conduct I credit McCarty's denial because his testimoni-
al demeanor, which was good, was better than Manwfirs, which was
poor. Moreover, when I questioned Manwill in an effort to determine
where, when, and in whose presence Manwill heard McCarty ask the
employees to engage in a work stoppage, it is plain from Manwill's testi-
mony (Tr. 406, L. 19 to Tr. 409, L. 18) that Manwill's above-described
testimony was false and that he did not hear McCarty make such a state-
ment and that no one ever Informed him that McCarty made that state-
ment
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quit." McCarty then went up into the boiler to speak
with Russell Utterback for the purpose of telling Utter-
back, with whom he commuted to and from work, that
he had quit. After informing Utterback he had quit,
McCarty came down from the boiler and went to the
office where he spoke to Project Manager Null and
Project Superintendent Frost and told them, among
other things, he did not feel Hargan was running the job
right and felt he could not work under the present condi-
tions. On his way out of the office, Local 16's Project
steward Wright met him and told him that Local 16's
business agent Andrews was en route to the Project and
asked McCarty not to quit until Andrews got to the job-
site. Subsequently, when Andrews arrived, both Hargan
and Andrews agreed that McCarty's quitting would not
be good for the Project. Hargan asked McCarty not to
quit. McCarty responded by apologizing. He informed
Hargan he was sorry he had lost his temper and stated if
Hargan was willing to accept him back he would return
to work, which he did.
Hargan, in support of his testimony that the insulators
supervised by McCarty did not start work on time, testi-
fied that throughout McCarty's employment, two or
three times weekly, McCarty's crew did not start work
on time at either the start of the workday or after the
end of a break period. He testified he spoke to McCarty
about this more than once and told McCarty "we've got
to get to work on time and told him that the insulators
were always the last ones to get to the work area."
However, Hargan was able to testify with a degree of
specificity about only one such incident. He testified that
once late in August when he observed that McCarty and
his crew of insulators were still at their toolboxes at the
7 a.m. starting time, that he walked over to them, and
that when McCarty observed him coming that McCarty
sent the crew on their way to work and told them not to
speak to Hargan.
McCarty testified that Hargan complained to him on
only two or three occasions that his crew was not at
work on time or were late in getting to their workplace,
and that on one of these occasions the complaint in-
volved two travelers who had just been hired that day
and because of that were not familiar with the precise
time that break periods were scheduled. Regarding the
only incident which Hargan was able to describe when
McCarty's crew was late getting to their work area—the
time when Hargan observed McCarty and his crew at
the toolbox at 7 a.m.—McCarty testified that the night
before, someone, without advising the workers, had
moved their toolboxes and work clothes from where
they had been to the other side of the Project, so, when
the workers came 'to work that morning it took them a
while to locate their toolboxes and work clothes, which
resulted in the workers still being at their toolboxes at 7
a.m. McCarty testified that on this occasion, Hargan
came to him and stated, "Met these men to work."
Hargan, in support of his testimony that McCarty ig-
nored his instructions about job assignments, initially tes-
tified that there were numerous occasions when
McCarty did not place the workers under his supervision
in the work areas Hargan had instructed him to place
them, but later testified he could not recall more than
one such occasion. It is undisputed that Hargan did not
speak to McCarty or otherwise criticize him for engag-
ing in this alleged misconduct.
Hargan, in support of his testimony that McCarty en-
gaged in "bull sessions" during worktime with the work-
ers he supervised, testified that this was a continuing
problem despite the fact that Hargan had asked McCarty
to let the workers work and not stop them from work-
ing.
Lastly when Hargan was asked whether he ever spoke
to McCarty critically about any of the above-described
problems he had with McCarty's work performance or
the way McCarty conducted himself at work, Hargan
testified he spoke to McCarty in a critical manner on
three or four occasions and testified that in these conver-
sations, "just told him that we need-to be out there ready
to go to work at 7 a.m., seeing us being the only ones
not out there at that time" and testified he also told him,
"we need to get out there on time, we need to take our
ten minutes breaks." Hargan further testified that this
was the only criticism he could recall having directed to
McCarty during McCarty's employment (Tr. 386, L. 24
to Tr. 389, L.8). In other words the only times Hargan
could ever recall speaking to McCarty in a critical
manner about his work performance or the way he con-
ducted himself at work was on three or four occasions
when he told McCarty that the men he supervised
needed to be ready for work at the 7 a.m. starting time
and generally informed him "we need to get out there on
time."
As described in detail supra, Hargan's testimony about
McCarty's unsatisfactory work performance was disput-
ed in a number of significant respects by McCarty's testi-
mony. McCarty's testimonial demeanor was good,
whereas Hargan's was poor. In view of this, I have re-
solved these conflicts by crediting McCarty's and reject-
ing Hargan's testimony.
To sum up, an evaluation of the credible evidence con-
cerning Hargan's several reasons for selecting McCarty
for layoff reveals the following: McCarty did not act in-
subordinate or abusive towards Sheet Metal Superintend-
ent Smith and, in any event, Hargan never criticized
McCarty for engaging in such misconduct or otherwise
spoke to him about engaging in such misconduct; the
only work stoppage that Hargan had reason to believe
McCarty had engaged in or was responsible for was
when Foreman Manwill informed him that McCarty and
his crew had momentarily stopped work to watch Man-
will help Sheet Metal Superintendent Smith do work
that was insulators' work and that had previously been
performed on the Project by insulators; 20 as to the
events of 5 September, although some of the insulators
stopped work because of Reed's termination, there is no
evidence that Hargan could have reasonably believed
that McCarty was responsible for the work stoppage or
had otherwise encouraged the employees to stop work,
thus it is not surprising that Hargan never accused
McCarty of engaging in such conduct or otherwise
20 Idargan never even bothered to speak to McCarty about this mo-
mentary work stoppage.
BABCOCK & WILCOX CONSTRUCTION CO. 631
spoke to him about this matter; 21 McCarty's crew of in-
sulators failed to start work on time on only one or two
isolated occasions and Hargan did not speak to McCarty
in a critical manner on those occasions, but merely told
him to get his men to work; McCarty failed to obey Har-
gan's instructions concerning work assignments only
once and Hargan did not criticize him for this or other-
wise speak to him about the matter; and, although
McCarty had a habit of speaking to the insulators he su-
pervised about nonwork-related matters during working
time, it is undisputed that Hargan never spoke to him
critically about this, but simply told him to let the work-
ers work and not stop them from working.22
More briefly stated, an evaluation of the credible evi-
dence reveals that Hargan's testimony that he was dissat-
isfied with McCarty's work performance was in part
completely without substance, in part grossly exaggerat-
ed, and with respect to the one area where Hargan's tes-
timony withstood scrutiny—his undenied testimony that
McCarty had a habit of "bullshitting" during working
time with the insulators he supervised—Hargan never
criticized McCarty for engaging in this conduct, but
simply told him to let the workers work and not stop
them from working. As a matter of fact Hargan admitted
that, during McCarty's approximately 10 weeks as fore-
man, Hargan spoke to him in a critical manner on only
three or four occasions and further testified that on those
occasions he merely told him that the insulators he su-
pervised needed to be ready to start work at the 7 a.m.
starting time and that they should take no more than the
10 minutes allotted for break periods. In other words
Hargan admittedly did not ever reprimand or otherwise
criticize McCarty for any of the Alleged above-described
misconduct that Hargan testified he relied on in selecting
him for layoff. Quite the opposite, the record reveals that
on 5 September Hargan persuaded McCarty to change
Ins mind about quitting his employment, certainly unusu-
al conduct for Hargan to have taken if he was really as
dissatisfied with McCarty's work performance as he
claims.
As described supra, Hargan testified that the reason he
chose McCarty for layoff was that on 25 September,
when Project Manager Null instructed him to lay off
several insulators because of a lack of work, Null specifi-
cally told him to lay off one of the two insulator fore-
men and he selected McCarty for layoff, rather than
Foreman lVfanwill, because of McCarty's unsatisfactory
work performance. The record as a whole reveals there
are certain significant portions of this testimony that are
incredible. First, I note that Respondent's failure to call
Null, who at the time of the hearing was still in its
21 Not only is it undisputed that Hargan never criticized or otherwise
spoke to McCarty about the 5 September work stoppage, the record re-
veals that following the work stoppage that Hargan persuaded McCarty
to change his mind about quitting his employment, a strange thing for
Hargan to have done if he believed that McCarty was responsible for the
employees' earlier work stoppage.
22 I note there is no evidence that McCarty's habit of talking to the
insulators he supervised delayed Respondent's production schedule. Quite
the opposite, the record reveals that Horgan felt the insulators employed
under McCarty's supervision were so far ahead of the sheet metal work-
ers m their work that the sheet metal workers could not catch up with
them.
employ, to corroborate Hargan's testimony that Null in-
structed him to lay off either Foreman McCarty or Fore-
man Manwill, when coupled with Hargan's poor testimo-
nial demeanor, warrants the conclusion that this portion
of Hargan's testimony was false. Second, when Null
spoke to Hargan on 25 September about the layoff,
Hargan supposedly had already decided on 22 September
that there would only be one insulator foreman em-
ployed effective Monday, 29 September, because the in-
sulation work on the boiler would be fmished Friday, 26
September, and that because of this, McCarty who su-
pervised the boiler crew, would, along with the rest of
his crew, be transferred to work under Manwill's super-
vision. Thus Hargan's above-described testimony does
not make sense because several days prior to 25 Septem-
ber Hargan had supposedly already decided and had in-
formed McCarty that effective Monday, 29 September,
McCarty would no longer be employed as a foreman on
the Project but would be working with the tools as a
rank-and-file insulator under Manwill's supervision on
the piping crew. When at the conclusion of his testimony
I pointed out this lack of sense in his testimony, Hargan
belatedly testified that in addition to McCarty's poor
work performance as foreman there was an additional
reason that he relied on in selecting McCarty for layoff,
which was Hargan's belief that McCarty would be hos-
tile and jealous if he was demoted from foreman to rank-
and-file insulator. I am persuaded that this testimony was
an afterthought that played no part in Respondent's deci-
sion to select McCarty for layoff, inasmuch as Hargan's
testimonial demeanor was poor when he gave this testi-
mony and the memos he prepared on 30 September and
7 November that stated his reasons for selecting
McCarty for layoff do not expressly or by implication
mention that one of the reasons for Respondent's deci-
sion was that it believed McCarty would be so jealous
and hostile due to his demotion that it would not have
been appropriate to keep him on the job as a rank-and-
file worker. 2 3
Also relevant in evaluating Respondent's reasons for
selecting McCarty for layoff is the fact that at different
times Respondent advanced different reasons for its con-
duct. During the hearing, as described supra, Insulating
Superintendent Hargan initially testified he selected
McCarty for layoff, rather than Insulator Foreman Man-
will, because of McCarty's unsatisfactory work perform-
ance and conduct as a foreman. Subsequently, at the con-
clusion of his testimony, Hargan belatedly testified that
in addition to McCarty's unsatisfactory work perform-
ance and conduct as a foreman, there was an additional
reason why he had been selected for layoff, namely,
Hargan thought that McCarty would be hostile and jeal-
ous if he was demoted from foreman to a rank-and-file
insulator. Prior to the hearing herein in defending itself
against McCarty's charge that it had illegally selected
him for layoff and refused to reemploy him, Respondent
took the position that the only reason it had selected him
23 I also note that, when on 22 September Hargan supposedly decided
to demote McCarty and supposedly mformed him of this decision, there
Is no contention that McCarty expressed any hostihty or jealousy on
bemg informed of Hargan's decision.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for layoff and refused to reemploy him was because on
numerous occasions McCarty had spoken to the custom-
er for whom Respondent was building the Project's
power-generating unit and had informed the customer
that Respondent was not doing the insulation work ac-
cording to the job specifications. In this regard, the
record reveals that on 7 January 1987 in the charge filed
in Case 20-CA-20898 McCarty alleged he had been dis-
charged by Respondent on 26 September and refused re-
employment on 6 October all because of his union
and/or protected concerted activity. Respondent was
promptly served with a copy of the charge that was ac-
companied by a letter from the Board's Regional Direc-
tor that, among other things, asked Respondent to submit
to the Regional Director "a statement of your position
with respect to the allegations set forth in the charge."
In response, on 23 January 1987 Respondent's manager
of labor relations, John Erickson, wrote the Regional Di-
rector in pertinent part, as follows:
The Company's contract with Energy Factors-
Feather River contained very stringent require-
ments relative to the construction of the power gen-
eration unit. Among those procedures was a Specifi-
cation for Insulation and Lagging which must be
followed completely in order to meet product guar-
antees. On numerous occasions, Mr. McCarty cir-
cumvented his reporting relationship and corn-
plained directly to our customer about the insula-
tion specifications. Correction of confusion created
by Mr. McCarty's action took considerable manage-
ment time. Mr. McCarty was therefore selected for
inclusion in the September 26, 1986 reduction in
force.
Additionally, when a need to increase our work
force came up Mr. McCarty was referred as an ap-
plicant by the Asbestos Workers Local Union. Due
to the previously noted problems we did not rehire
Mr. McCarty.
Erickson, who had no personal knowledge about the
events surrounding McCarty's layoff and Respondent's
refusal to reemploy him, testified that in order to prepare
the above-described statement of position that he had
spoken to Project Manager Null and it was based on
what Null told him, that Erickson prepared the 23 Janu-
ary 1987 statement of position. More specifically, Erick-
son testified Null told him that on numerous occasions
McCarty had gone around Respondent's management
and spoken directly to Respondent's customer and that
during those conversations with the customer had ques-
tioned the way in which Respondent was installing the
Prqject's insulation and whether Respondent was follow-
ing the job specifications. Null supposedly told Erickson
that as a result of these conversations between McCarty
and the customer that Respondent's management, includ-
ing Null, were forced to spend considerable time with
the customer justifying the way the insulation work was
being done. I reject Erickson's testimony for the follow-
ing reasons: His testimonial demeanor was poor when he
testified about his conversation with Null, and Respond-
ent's failure to call Null to corroborate Erickson's testi-
mony warrants the inference that if called Null would
have contradicted rather than corroborated his testimo-
ny. 24 Moreover, the record reveals that McCarty did
not speak to Respondent's customer about the insulation
work being done on the Project. McCarty, whose testi-
monial demeanor was good, denied having engaged in
such conduct and there is no evidence that Insulating Su-
perintendent Hargan had any reason to believe that
McCarty had been engaged in this type of conduct. In
this last respect, although Hargan testified at length
about the several kinds of unsatisfactory conduct that
McCarty had engaged in which made him an unsatisfac-
tory foreman, Hargan significantly failed to mention in
his testimony anything about McCarty having talked to
Respondent's customer about the work being done on
the Project. Under the circumstances, I fmd that Erick-
son's testimony concerning his reason for saying what he
did in Respondent's statement of position was a fabrica-
tion.
8. Respondent's reasons for its 6 October refusal to
rehire Davis
Davis, a journeyman insulator, began work at the
Project on 29 August and worked there during the time
material under Foreman Manwill's supervision. On 1 Oc-
tober, as described supra, he quit his employment and, as
I have also found supra, when Davis quit his employ-
ment on 1 October he did not tell Insulating Superin-
tendent Hargan that he would not work under Foreman
Manwill's supervision, nor did he refuse to obey Man-
will's work assignment.
On 6 October, pursuant to a request from Respondent
to dispatch two or three insulators to the Project, Local
16 dispatched Davis and McCarty, but, as described in
detail supra, Respondent refused to hire them. A descrip-
tion and an evaluation of the record evidence concerning
Respondent's reasons for not hiring Davis on 6 October
is set forth in this section.
Insulating Superintendent Hargan testified that on 6
October Foreman Manwill told him that Local 16 had
dispatched Davis and McCarty to the Project and asked
Hargan what they should do about employing them.
Hargan further testified that with respect to Davis, he re-
sponded by telling Manwill that because Davis had told
Hargan he would not work under Manwill's supervision,
that Hargan did not think Respondent should rehire him,
because if he would not work under Manwill's supervi-
sion it would be senseless to hire him 25 Hargan also tes-
tified to the effect that at this point he unequivocally
told Manwill not to rehire Davis. This is the extent of
Hargan's testimony concerning Respondent's decision
not to rehire Davis.
The testimony of Manwill differs from Hargan's
above-described testimony in several significant respects.
Initially Manwill testified that on 6 October he went to
Hargan's office and told him that Davis and McCarty
had been dispatched to the Project and asked whether
24 I note that the Respondent in its answers to the complaints admitted
that Null, a member of Management, was still in its employ.
25 Manwill was Respondent's only insulator foreman.
r
BABCOCK & WILCOX CONSTRUCTION CO. 633
Respondent should rehire them. He ftirt-her testified that
Hargan responded by simply stating, "I think we should
twit them around at the gate," without any explanation,
and instructed Manwill to go to Project Manager Null
and to discuss the matter with Null. Later, during cross-
examination, Manwill gave a completely different ver-
sion of what occurred. He testified that, when he spoke
to Hargan about Davis and McCarty being dispatched to
the Project, he recommended to Hargan that Respondent
not rehire either Davis or McCarty and, in support of
this recommendation, told Hargan, "the job is going
smooth now and we do not need a disruptive force, let's
turn them around at the gate" and Hargan, without any
discussion, responded to his recommendation by simply
stating that he "agreed" and instructed Manwill to speak
to Null about the matter. Regarding his subsequent con-
versation with Project Manager Null, Manwill testified
that he told Null that Davis and McCarty had been dis-
patched to the job and that Manwill and Hargan recom-
mended that they not be hired. According to Manwill,
Null responded by stating that it was also his opinion
that they not be hired.26
En addition to the above-described inconsistencies be-
tween Manwill's initial and later testimony concerning
his 6 October conversation with Hargan about Davis'
employment, there are other internal inconsistencies in
his testimony concerning this subject. Initially, he testi-
fied the reason he spoke to Hargan on 6 October about
Davis' employment was that prior to 6 October Hargan
had told Manwill that Davis had stated he would not
work under Manwill's supervision. Subsequently, howev-
er, Manwill testified that the reason he spoke to Hargan
on 6 October and recommended that Davis not be re-
hired was because he believed that Davis and McCarty
were "non-performers" and "ship disturbers" who "cre-
ated problems."27
Manwill's above-described testimony that Davis,
during his approximately 1 month of employment at the
Project, had been a "non-performer" and a "ship disturb-
er" or a "disruptive force" who "created problems" on
the job is completely without evidentiary support insofar
as it refers to Davis' work performance and conduct as
an insulator. The only evidence in the record that pic-
tures Davis' work performance and other work-related
conduct in an unsatisfactory light is Manwill's and Hat.-
gan's previously described discredited testimony that on
1 October, when Davis quit his employment, he refused
to obey Manwill's work assignment and told Hargan he
would not work under Manwill's supervision. Quite the
opposite, the only evidence presented by Respondent
concerning Davis' work performance and conduct
during the period he had been previously employed at
the Project reveals that he was regarded by Respondent
as a "normal" employee. Thus, the termination slip that
was filled out by Respondent when he quit his employ-
As described supra, I have credited McCarty's and rejected Man-
will's testimony concerning Manwill's 6 October conversation with
Project Manager Null.
Manwill testified that he considered the phrase "ship disturbers" to
have the same meaning as a "disruptive force." The General Counsel's
motion to correct the transcript by substituting "shit disturbers" for "ship
disturbers" is denied.
merit on 1 October rated Davis as "normal" for "quanti-
ty" and "quality" of work, as well as for "cooperation,"
"attendance," and "potential." Although there is ample
space for "other comments" concerning his work per-
formance and conduct, there is no indication on his ter-
mination slip that Respondent was dissatisfied with his
work performance or conduct.
Prior to the hearing in this case the Respondent had
advanced a reason for its 6 October refusal to rehire
Davis, which was completely different from the above-
described reasons advanced by Hargan and Manwill
during the hearing. In the statement of position it submit-
' ted to the Board's Regional Director in response to the
charge filed in Case 20-CA-21027 by Davis, Respondent
stated in substance that its sole reason for not hiring
Davis on 6 October was that he had previously quit his
job at the Project on 1 October and because of this
Davis was not eligible to be rehired because of the Com-
pany's policy of not rehiring former employees at a
project where they had been previously employed and
quit. In this regard, the record reveals that on 2 March
1987 Davis filed a charge in Case 20-CA-21027 with the
Board's Regional Director that alleged in substance that
on 6 October Respondent refused to rehire him because
of his union and/or protected concerted activities. Re-
spondent was served with a copy of the charge with an
accompanying letter from the Regional Director that,
among other things, asked Respondent to submit to the
Regional Director "a statement of your position with re-
spect to the allegations set forth in the charge," In re-
sponse, the Respondent's manager of labor relations,
John Erickson, on 20 March 1987 wrote the Board's Re-
gional Director, in pertinent part, as follows:
The Company maintains a policy of not rehiring
former employees at a project where they had been
previously employed and either quit or had been
discharged for cause. For that reason, Mr. Davis
was not rehired.
Erickson, who had no personal knowledge about the
events surrounding Respondent's 6 October refusal to
hire Davis, testified that to prepare the above-described
statement of position, he spoke to Project Manager Nun
and, based on what Null told him, prepared the Re-
spondent's statement of position that was sent to the
Board's Regional Director. More specifically, Erickson
testified that, when he spoke to Null about Davis' allega-
tions, Null told him that "he [Null] turned Davis away
because he had been on the job before and quit." In re-
sponse to a leading question, Erickson then testified that,
based on this statement by Null, Erickson assumed that
Null had refused to rehire Davis based on Respondent's
policy that prohibited the rehire of a former employee at
a project on which the employee had been previously
employed and quit. I reject Erickson's aforesaid testimo-
ny because his testimonial demeanor was poor when he
testified about his conversation with Null and because
Respondent failed to call Null to corroborate Erickson's
testimony, which warrants the inference that if called
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Null would have contradicted rather than corroborated
Erickson's testhnony. 2 8
Previous to responding to Davis' unfair labor practice
charge, on 7 November the Respondent expressed still
another reason for its 6 October refusal to rehire Davis.
On 7 November, in connection with Local 16's Interna-
tional Union's investigation of a contractual grievance
that Davis had filed protesting Respondent's refusal to
rehire him, Insulating Superintendent Hargan prepared
and signed a memo that was also signed by Project Man-
ager Null, which informed the International Union's rep-
resentative that the reason Respondent had chosen to ex-
ercise its contractual right to refuse to employ Davis on
6 October was Davis had previously quit his employ-
ment at the Project on 1 October and that "Company
policy [is] not to rehire for 30 days after quit." The state-
ment in Hargan's and Null's 7 November memo that Re-
spondent's policy is "not to rehire for 30 days after quit"
is not consistent with Erickson's description of this al-
leged policy. Erickson did not mention that an employee
who quit his employ was only ineligible for the first 30
days, rather both his testimony and his description of the
policy as set forth in Respondent's 20 March statement
of position were to the effect that a person who quit was
forever ineligible for reemployment on the same project.
Regarding Respondent's alleged policy of not rehiring
former employees at a project where they were previ-
ously employed and quit, the sole testimony presented by
Respondent about this rule was Erickson's testimony that
the rule was a verbal one, unlike Respondent's other
work rules on the Project that were in writing, and that
it had been in existence since 1976 or 1977, when Erick-
son verbally communicated it to all of Respondent's su-
perintendents. There is no evidence that during the ap-
proximately 10 years that this alleged verbal rule has ex-
isted, that either Erickson or anyone else from Respond-
ent ever reminded supervision of the existence of the
rule. No reason was offered by Erickson to explain why
this rule, unlike Respondent's other work rules, was
never reduced into writing. Neither Hargan nor Manwill
corroborated Erickson's testimony about the existence of
such a rule. Nor was Null called to corroborate Erick-
son's testimony. On the other hand, it was established by
the undenied and credible testimony of McCarty that
during his employment by Respondent as a foreman on
approximately six different jobs, that no one ever told
him there was a company policy that prohibited the em-
ployment of a former employee at a project because the
employee had previously been employed on the project
and quit. Quite the opposite, McCarty's undenied and
credible testimony is that during his past employment
with Respondent as a foreman that employees who quit
jobs were rehired by Respondent on the same jobs. And,
with respect to the job involved in this case, the Project,
McCarty's uncontradicted testimony is that one of the in-
sulators employed under his supervision, Dave Barnett,
was rehired after having quit. The foregoing circum-
stances, when coupled with Erickson's poor testimonial
28 As noted previously the Respondent, in its answers to the com-
plaints, admitted that Null, a member of management, was still m
employ.
demeanor, persuade me that during the time material to
this case Respondent did not have a policy or a rule that
prohibited it from rehiring a former employee at a
project where the employee had previously been em-
ployed and quit.
To sum up, Respondent's 20 March 1987 statement of
position to the Board's Regional Director stated that its
reason for refusing to rehire Davis on 6 October was
that he had previously quit his employment at the
Project and because of this was not eligible for rehire
under the company policy of not rehiring former em-
ployees on the same project from which they had previ-
ously quit. Subsequently, during the hearing in this case,
Respondent presented a completely different reason for
its 6 October refusal to rehire Davis, namely, that when
he quit he told Hargan he would not work under the su-
pervision of Manwill, the Project's only insulator fore-
man. Thereafter, during the course of the hearing, Re-
spondent presented yet another reason for its refusal to
rehire Davis, namely, that while employed at the Project
Davis had been a "non-performer" and a "ship disturb-
er" or a "disruptive force" who had created problems on
the job. Each of the aforesaid reasons, as I have de-
scribed in detail supra, is completely unfounded and
without substance. The record also reveals, as described
in detail supra, that Manwill's testimony about Respond-
ent's 6 October decision not to rehire Davis was internal-
ly inconsistent in certain significant respects and did not
jibe with Hargan's account of what occurred. In addi-
tion, Project Manager Null, who, along with Hargan and
Manwill, was supposedly involved in the 6 October deci-
sion not to rehire Davis, was not called to testify by Re-
spondent. This warrants the inference that if called his
testimony would have been adverse to Respondent and
would have contradicted the testimony of Hargan and
Manwill in significant respects.
B. McCarty and Davis File Contractual Grievances
As described supra, Respondent and Local 16 were
parties to a collective-bargaining agreement, the Project
Agreement, which governed the terms and conditions of
employment of the insulators employed by Respondent
at the Project. The Project Agreement contained a
grievance-arbitration procedure, in which the parties
agreed that "in the event any dispute arises of the inter-
pretation or application of this Agreement, excluding
questions of jurisdiction of work, the same shall be set-
tled by means of the procedure set out herein."
The Project Agreement established a four-step griev-
ance procedure culminating in binding and impartial ar-
bitration, as follows: step 1 provided for the referral of
the grievance to a representative of Local 16 and Re-
spondent's Project representative; step 2 provided that if
within 5 working days after the step 1 meeting was held
the grievance had not been resolved, it was to be re-
ferred to Local 16's International Union and Respond-
ent's labor relations representative; step 3 provided that,
if the grievance had not been resolved at step 2 within
10 working days after the completion of step 2, it was to
be referred in writing to "the General President of the
BABCOCK & WILCOX CONSTRUCTION CO. 635
Union invol ved" 2 ° and Respondent's home office repre-
sentative; and step 4 provided that if the grievance was
not resolved within 10 working days after the comple-
tion of step 3 Respondent and Local 16 shall choose. a
mutually agreed-on arbitrator for final and binding arbi-
tration, with the expenses to be shared equally by Local
16 and Respondent. Lastly, the Project Agreement pro-
vided that the above-described time limitations concern-
ing the processing of a grievance could be extended by
the parties by mutual agreement, but farther provided
that the failure to process a grievance within the time
limits set forth above, without a request for an extension
of time, shall be deemed a waiver of such grievance.
1. McCarty's grievances
On 26 September, immediately after being told of his
26 September layoff, McCarty contacted Local 16's busi-
ness agent Andrews and requested that Local 16 process
a grievance against Respondent protesting his layoff.
On 29 September, as described in detail supra, An-
drews went to the Project where he met with Project
Manager Null and Project Superintendent Frost and dis-
cussed McCarty's grievance. This meeting did not re-
solve McCarty's termination grievance, inasmuch as Re-
spondent's representatives refused Andrews' request that
they reinstate McCarty.
On 29 September, immediately after meeting with Re-
spondent's representatives, Andrews wrote George
Boylan, the assistant to the general president of Local
16's International Union, and requested that an official
from the International Union be assigned to process the
grievance McCarty had filed against Respondent con-
cerning his 26 September termination and explained to
Boylan that at the first step of the grievance procedure,
Respondent on 29 September had refused to reinstate
McCarty.
On 3 October Boylan wrote Respondent's labor rela-
tions manager, John Erickson, informing him that
McCarty's termination grievance had not been settled at
step 1 of the grievance procedure and advised Erickson
that the International Union was assigning International
Organizer Eddie Story to arrange to hold a step 2 meet-
ing with Erickson to attempt to resolve McCarty's termi-
nation grievance.
On 6 October after Respondent, as described in detail
supra, refused to hire him at the Project, McCarty spoke
to Local 16's business agent Andrews and asked that
Local 16 file a grievance concerning this matter.
On 14 October, by letter, Local 16's business manager
Greg Feere notified Project Manager Null that Local 16,
on behalf of both McCarty and Davis, was grieving con-
cerning Respondent's refusal to hire them on 6 October
and its failure to pay them 2 hours of reporting pay, and
requested a meeting date to resolve those grievances.
29 The Project Agreement in its preamble defines "Union" as the "Na-
tional and/or Local Unions who become signatory" to the Project
Agreement. Local 16's International union is not a signatory to the
Project Agreement. It is apparent from the record as a whole, however,
that the phrase "the General President of the Union involved" as used in
step 3 of the contractual grievance procedure refers not to the president
of Local 16, but to the general president of Local 16's International
Union.
McCarty received no information about the status of
his above-described grievances other than, as McCarty
testified, a meeting was scheduled to discuss his griev-
ances at the Project, but on the day of the meeting he
was telephoned and advised that there was no use for
him to travel to the Project because Respondent had re-
fused to meet.
Thereafter, late in November, McCarty wrote Andy
Hass, the general president of Local 16's International
Union, and stated that pursuant to step 3 of the Project
Agreement's grievance procedure, McCarty was notify-
ing Hass that Respondent, with respect to McCarty, had
violated article 14 of the Project Agreement in these re-
spects: section 14-1, insofar as it provided that
laluthorized representatives of the Unions shall have
access to the Projects"; section 14-5, insofar as it provid-
ed, "Mlle Employer shall not discriminate against the
steward"; and section 14-6, insofar as it provided that,
"[t]he working steward . . will be subject to discipline
(including discharge) to the same extent as other employ-
ees after notification (24 hours) and consultation with the
Business Agent involved."30 McCarty also informed
General President Hass that he had filed an additional
grievance alleging Respondent had violated article 6,
section 6-2,3i for refusing on 6 October to pay him 2
hours of reporting time. McCarty further advised Hass
that International Union Organizer Story was supposed
to meet with Respondent's labor relations manager,
Erickson, on 31 October but that McCarty had not heard
anything from Story about his grievance and his phone
call to Story was "to no avail," and so when he realized
he was not making any progress he had telephoned Hass'
office and spoken to Hass' assistant, Boylan, who had as-
sured him that his grievance would not be dropped.
McCarty ended the letter by asking Hass for his assist-
ance in resolving his grievance as soon as possible."
During the months of October, November, December,
and the first week of January 1987, McCarty received no
response whatsoever from either Local 16 or its Interna-
tional Union about the status of his grievances, except
that sometime in December he received, by mail, from
Local 16 a check for 2 hours of pay. The check had
been drawn by Respondent. There was no letter of ex-
planation attached to the check. McCarty assumed it was
for the 2 hours of reporting pay he had claimed was due
him for reporting to work on 6 October.
As I have found supra, on 7 January 1987 McCarty
filed his charge herein in Case 20-CA-20898 alleging Re-
spondent had violated Section 8(a)(1) and (3) of the Act
by terminating him on 26 September and refusing to hire
him on 6 October. Also, on 7 January 1987 McCarty
filed a charge in Case 20-CB-7103 alleging that Local 16
and its International union had violated Section
8(b)(1)(A) of the Act by failing to process his above-de-
3 ° I note that secs. 14-1, 14-5 and 14-6 of the Project Agreement do
in fact contain the above-described provisions.
al Art 6, sec. 6-2 provided, in pertinent part, that "any employee re-
porting for work and for whom no work is provided shall receive pay
for two (2) hours at the applicable rate for so reporting."
33 Late in Noveniber McCarty also wrote a letter to Respondent's
labor relations manager, Erickson, which was similar to his above-de-
scribed letter to Hass
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ---
scribed grievances. On 26 February 1987 the Board's
General Counsel issued a complaint against Local 16 and
its International Union in that case alleging that the
unions had violated Section 8(b)(1)(A) of the Act by re-
fusing to process McCarty's grievances against Respond-
ent concerning his 26 September termination and Re-
spondent's 6 October refusal to reinstate him. The com-
plaint against the unions was subsequently consolidated
for hearing with the complaint issued against Respondent
in Case 20-CA-20898, alleging that Respondent's 26 Sep-
tember termination of McCarty violated Section 8(a)(1)
and (3) of the Act. However, on 26 October 1987, the
day before the consolidated hearing was scheduled to
begin, McCarty requested that his charge in Case 20-
CB-7103 against the Unions be withdrawn. The Board's
Regional Director, by order dated 26 October 1987, ap-
proved McCarty's withdrawal request and also withdrew
the complaint in Case 20-CB-7103.
McCarty testified he had no conversation with anyone
from either Local 16 or its International Union that
caused him to withdraw his charge against the Unions,
but that the Board agent who was handling the matter
informed him that the Unions were willing to pay him a
certain amount of money, not specified in the record, if
he agreed to withdraw the charge. McCarty, after con-
sidering the matter, informed the Board agent that he ac-
cepted the Unions' money offer and requested that his
charge in Case 20-CB-7103 be withdrawn. As noted
supra, the Board's Regional Director approved McCar-
ty's request that the charge be withdrawn and because of
this withdrew the complaint issued in that matter.
The record reveals that on 26 January 1987 Interna-
tional Union Organizer Story, who had been assigned by
the International Union to process McCarty's grievances,
wrote to George Boylan, an assistant to the International
Union's president, that on 16 October Story and Local
16's business manager Feere had met at the Project with
Respondent's representatives to discuss McCarty's griev-
ances and that after this discussion and after investigating
the grievances that he was of the opinion, for the reasons
set forth in the 26 January 1987 letter, that Respondent
was within its rights to lay him off.
On 30 January 1987, an attorney for the International
Union, in response to the filing of McCarty's 7 January
1987 charge in Case 20-CB-7103, wrote the Board's Re-
gional Director that the International Union had not
failed to process McCarty's grievances, as alleged in the
charge, but it had resolved one of the grievances favor-
ably, the one that involved McCarty's claim for 2 hours
of showup pay, and had dropped McCarty's grievance
concerning his 26 September termination only after an
investigation had revealed that the grievance was not
meritorious.
2. Davis' grievances
On 7 October Davis hand-delivered a letter to Local
16 in which he grieved about Respondent's refusal to
hire him on 6 October and about Respondent's failure to
pay him 2 hours of showup time for that day.
On 14 October, by letter, Local 16's business manager
Greg Feere notified Project Manager Null that Local 16,
on behalf of McCarty and Davis, was grieving about Re-
spondent's refusal to hire them on 6 October and its re-
fusal to pay them 2 hours of reporting pay, and request-
ed a meeting date to resolve those grievances. The last
time Davis spoke to anyone from either Local 16 or its
International union concerning his grievance was during
the middle of October when he questioned International
Union Representative Story about the status of the griev-
ance and Story responded by informing him that Local
16's business manager Feere was handling it. However
when Davis telephoned Feere to ask about the griev-
ance, eere dia not return his phone calls. Since his
above-described conversation with Story, Davis has not
received any communications from either Local 16 or its
International Union concerning his grievance. In Decem-
ber, however, he received a check in the mail from Re-
spondent for 2 hours of pay, which was apparently for
showing up for work 6 October.
On 2 March 1987, as I have found supra, Davis filed
his charge herein in Case 20-CA-21027 alleging Re-
spondent had violated Section 8(a)(1) and (3) of the Act
by refusing on 6 October to hire him.. Also, on 2 March
1987, Davis filed a charge in Case 20-CB-7171 alleging
that Local 16 and its International Union violated Sec-
tion 8(b)(1)(A) of the Act by failing to process his griev-
ance protesting Respondent's 6 October refusal to hire
him Subsequently, during the latter part of April 1987,
after having been informed by an agent of the Board that
unless it was withdrawn by him the charge would be dis-
missed by the Board's Regional Director, Davis with-
drew this charge.
II. DISCUSSION
A. Respondent's Contention that the Complaints'
Allegations Concerning McCarty's Termination and
the Refusal to Rehire Davis be Deferred to the Parties'
Contractual Grievance-Arbitration Provisions
The complaints' allegations concerning McCarty and
Davis are based on the unfair labor practice charges they
filed and allege, in essence, that Respondent violated
Section 8(a)(1) and (3) of the Act by laying off McCarty
on 26 September and refusing to hire Davis on 6 Octo-
ber, because of their union and/or protected concerted
activities. McCarty and Davis were employed by Re-
spondent in the bargaining unit represented by Local 16
and their terms and conditions of employment were gov-
erned by a collective-bargaining agreement, the Project
Agreement, between Local 16 and Respondent that con-
tained a four-step grievance-arbitration procedure culmi-
nating in binding impartial arbitration. In addition to
filing their unfair labor practice charges, McCarty and
Davis invoked the contractual grievance and arbitration
provisions by filing contractual grievances with Local 16
protesting Respondent's conduct. Their respective griev-
ances are cognizable under the terms of the contractual
grievance machinery, which also encompasses the con-
tentions that comprise Davis' and McCarty's unfair labor
practice allegations. 3 3
33 The governing collective-bargaining agreement expressly prohibited
Respondent from discriminating against Local 16's Project steward. The
Continued
BABCOCK & WILCOX CONSTRUCTION CO. 637
During the hearing Respondent amended its answers
to the complaints so as to allege that the unfair labor
practice allegations involving McCarty's termination and
the refusal to hire Davis "should have been deferred on
account of the existence of the grievance and arbitration
procedure which was not pursued." The General Coun-
sel contends that, because Respondent has declined to
give its assurances that it would not raise the timeliness
provisions of the contractual grievance-arbitration provi-
sions so as to permit Local 16 to submit the Charging
Parties' grievances to arbitration, it would not be appro-
priate for the Board to defer its unfair labor practice ju-
risdiction to the parties' grievance-arbitration procedure.
I agree.
As described in detail supra, the governing contractual
grievance-arbitration provisions contain time limits appli-
cable to the Charging Parties' grievances and those limits
have expired, thus, absent Respondent's waiver of the
time limits, Local 16's submission of the Charging Par-
ties' grievances to arbitration would be untimely. The
law is settled that as a part of its deferral defense Re-
spondent must agree to waive the timeliness provisions
of the grievance-arbitration procedure so as to permit
Local 16 to submit the Charging Parties' grievances to
arbitration. United Technologies Corp., 268 NLRB 557,
560 fn. 22 (1984); Detroit Edison Co., 206 NLRB 898
(11973). During the hearing, when counsel for the Gener-
al Counsel observed that the grievance-arbitration provi-
sions' time limits had expired, I inquired whether Re-
spondent's counsel could assure the General Counsel and
the Charging Parties that Respondent would waive the
time limits, if Local 16 submitted the Charging Parties'
grievances to arbitration. Counsel replied he could not
give that assurance. In answer to my further inquiry of
how Respondent could raise its deferral defense without
agreeing to waive the time limits contained in the con-
tractual grievance-arbitration provisions, Respondent's
counsel stated, "Well if I fmd that I can't, and I choose
to do so, I shall notify you or so indicate in my brief." In
its posthearing brief Respondent has not indicated it
would be amenable to waiving the time limits set forth in
the contractual grievance-arbitration provisions. Under
the circumstances, I fmd Respondent has failed and re-
fused to give assurances to the General Counsel and the
Charging Parties that, if Local 16 submitted the Charg-
ing Parties' grievances to arbitration, Respondent would
waive the time limits contained in the contractual griev-
ance-arbitration provisions. In view of this, I further fmd
it would be inappropriate for me to recommend that the
Board defer the complaints' unfair labor practice allega-
tions involving McCarty and Davis to the parties' con-
tractual grievance-arbitration procedure. 34 See Union
Electric Co., 214 NLRB 320, 321 (1974).
theory of the complaints is that Respondent selected McCarty for layoff
because he had been appointed to the position of Project steward and re-
fused to hire Davis because of his activity as steward when previously
employed at the Project.
34 I have not passed on the General Counsel's further contention that
deferral would also be inappropriate because the evidence, which has
been set forth in detail supra, establishes that the Unions involved would
not submit the Charging Parties' grievances to arbitration, even if Re-
spondent agreed to waive the time limits of the contractual grievance-
arbitration provisions.
In its posthearing brief Respondent does not contend
that the unfair labor practice allegations involving
McCarty and Davis should be deferred to the governing
contractual grievance-arbitration provisions. Rather, re-
lying on Alpha Beta Co., 273 NLRB 1546 (1985), Re-
spondent now contends that these unfair labor practice
allegations should be deferred to a settlement agreement
negotiated by the parties in the context of the agreed-on
contractual grievance-arbitration provisions. This conten-
tion is without merit because there is no evidence that
the Charging Parties' grievances were resolved by agree-
ment between Respondent and Local 16 or Local 16's
International Union and there is no evidence that either
McCarty or Davis were ever informed that their griev-
ances had been the subject of a negotiated agreement.
Indeed, there is no evidence whatsoever concerning the
manner in which the Unions disposed of Davis' griev-
ance and the sole evidence concerning the disposal of
McCarty's grievance is the fact that the International
Union, in answer to McCarty's charge that the unions
had failed to process his grievance, informed the Board's
'Regional Director that it had dropped McCarty's termi-
nation grievance because it believed it was without
merit. Under the circumstances, Respondent's contention
that the Charging Parties' grievances were resolved by
means of a settlement agreement reached in the context
'of the contractual grievance-arbitration procedure is friv-
olous and Respondent's reliance on Alpha Beta Co. is
misplaced.
It is for the foregoing reasons that I find it would be
inappropriate to defer in this matter to the parties' con-
tractual grievance-arbitration procedure. Accordingly, I
shall decide on the merits the allegations of the com-
plaints that involve McCarty's termination and the refus-
al to hire Davis.
B. The Alleged Unlawful Threat
The complaint in Case 20-CA-20898 alleges that Re-
spondent through Foreman Monte Manwill, on 29 Sep-
tember "threatened employees that Respondent would
discharge employees if they sought to enforce the collec-
tive bargaining agreement between the Union and Re-
spondent," thereby violating Section 8(a)(1) of the Act.
The record, as set forth in detail supra, contains the fol-
lowing evidence pertinent to an evaluation of this allega-
tion.
Respondent's insulator foremen, Manwill and Mc-
Carty, who are members of Local 16, were part of the
bargaining unit of insulators employed at the Project
who were' represented by Local 16 and covered by the
collective-bargaining agreement, the Project Agreement,
between Local 16 and Respondent. Foreman Manwill
was admittedly a supervisor within the meaning of Sec-
tion 2(11) of the Act.
During his approximately 10 weeks of employment at
the Project as foreman, on numerous occasions McCarty
asked the Project's insulating superintendent, Hargan, to
look at the job specifications for the insulation work to
determine whether Hargan't work instructions con-
formed to the job specifications. Hargan refused, stating
there were no job specifications available. McCarty was
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not satisfied with Hargan's response" and expressed his
doubt that Hargan's work instructions conformed to the
Project's job specifications and on those occasions when
McCart# felt Hargan's work instructions were obviously
incorrect, he asked Hargan, without success, to reduce
his instructions into writing. McCarty complained on
several occasions to Local 16's business agent Andrews
about the lack of job specifications.
On Friday, 26 September, in the morning, Hargan told
McCarty that as a result of a reduction in force, that ef-
fective Monday, 29 September, McCarty would no
longer be foreman but would be reassigned to work with
the tools. Later that same day, McCarty, in Foreman
Manwill's presence, was appointed by Business Agent,
Andrews to be Local 16's Project steward, in place of
insulator Wright, who was being laid off that day. Later'
that day, however, McCarty himself was laid off.
During the morning of the next working day, Monday,'
29 September, Davis, who worked under Foreman Man-
will's supervision, was appointed by Business Agent An-
drews to take McCarty's place as Local 16's Project
steward. Andrews at that time told Davis to look at a set
of job specifications for the insulation work to be sure
the work was being done according to the job specifica-
tions. Later that same morning, Foreman Manwill came
to Davis and stated he heard Davis had been appointed
steward. Davis acknowledged this was true and asked
Manwill if he could see the job specifications for the in:
sulation work which was being performed. Manwill re:
plied by stating, "Remember what happened to the last'
guy that asked too many questions." Davis asked Man-
will what he meant by that statement. Manwill replied'
by laughing.
I am persuaded that when viewed in context, that
Manwill's 29 September warning to Davis to "Remem-
ber what happened to the last guy that asked too many
questions" referred to the fact that McCarty, who had
questioned the way management was having the insula-
tion work performed and in so doing had asked to see
the job specifications, had been laid off the previous
workday. Thus, Manwill's warning was made in reply to
Davis' request to look at a set of the job specifications so
he could see whether the insulation work was being
done according to the specifications. McCarty, who had
been laid off the previous workday, on numerous occa-
sions had asked Insulating Superintendent Hargan to
look at the Project's specifications and had questioned
whether Hargan's work instructions for the insulation
work conformed to the Project's specifications. Under
the circumstances, Manwill's above-described comment
to Davis constitutes an implied warning that Davis
would be terminated like McCarty, if Davis asked ques-
tions, like McCarty had done, about the insulation work
being performed at the Project. Respondent, however,
was not responsible for Manwill's statement.
Manwill, although admittedly a supervisor within the
meaning of Section 2(11) of the Act, was a part of the
bargaining unit covered by the collective-bargaining
35 In the past when McCarty had been employed by Respondent on
projects as a foreman, Respondent had always maintained job specifica-
tions that management always had shown McCarty, on request
agreement, the Project Agreement, between Local 16
and Respondent. The Board has generally refused to
hold an employer responsible for conduct of supervisors
who are part of the bargaining unit, absent evidence that
the employer encouraged, authorized, or ratified the su-
pervisors' activity, or acted in such a manner as to lead
the employees reasonably to believe that they were
acting on behalf of management. Montgomery Ward &
Co., 115 NLRB 645, 647 (1956). See also Bennington Iron
Works, 267 NLRB 1285 (1983). The record discloses no
evidence that would render Respondent liable for super-
visor Manwill's conduct under the principle of Montgom-
ery Ward. I, therefore, shall recommend the dismissal of
that part of the complaint in Case 20-CA-20898 that al-
leges that, on 29 September 1986, Respondent violated
Section 8(a)(1) of the Act by threatening to discharge
employees if they sought to enforce the collective-bar-
gaining agreement between Local 16 and Respondent.
C. McCarty's Layoff
The complaint in Case 20-CA-20898 alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
terminating McCarty on 26 September because of his
union and/or protected concerted activity. The Board
held in Wright Line, 251 NLRB 1083 (1980), 36 that in
cases alleging violations of Section 8(a)(3) and (1) which
turn on employer motivation, the General Counsel must
first make a prima facie showing sufficient to support the
inference that protected activity was a motivating factor
in the employer's action against an employee and that
then the burden shifts to the employer to demonstrate it
would have taken the same action even in the absence of
the protected conduct. I am persuaded that the General
Counsel has established by a preponderance of the evi-
dence that a motivating factor in Respondent's decision
to terminate McCarty was Foreman Manwill's animosity
toward him because Manwill believed that when
McCarty began work as a rank-and-file employee, that
McCarty would actively pursue his duties as Local 16's
Project steward. I have reached this conclusion for the
following reasons.
The record establishes that Foreman Manwill was the
key person in management's decision to select McCarty
for layoff and that the other member of management, In-
sulating Superintendent Hargan, was only nominally in-
volved in the decision. As I found supra, on 26 Septem-
ber at approximately 8 a.m Insulating Superintendent
Hargan told Foremen McCarty and Manwill that there
would be a reduction in force that day, that due to this
McCarty would no longer be employed as a foreman but
would be employed as a rank-and-file insulator under
Manwill's supervision. Hargan requested that Manwill,
the remaining insulator foreman, submit to Hargan a list
of the insulators to be laid off." This was the first time
36 Approved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983).
37 As I have found supra, Hargan at first requested McCarty and Man.
will to meet together and jointly prepare and submit a list of insulators
whom they jointly recommended for layoff. McCarty refused, feeling it
would be inappropriate for him to corroborate on such a list because it
Continued
BABCOCK & WILCOX CONSTRUCTION CO. 639
that insulators were laid off due to a lack of work at the
Project, however, it is clear that Foreman Manwill, ad-
mittedly a supervisor within the meaning of Section
2(11) of the Act, had the authority to effectively recom-
mend which employees would be laid off. Thus, as Re-
spondent acknowledges, "it is the practice in Local 16's
area that insulation foremen make effective recommenda-
tions regarding layoffs" (Br. 5 at fn. 2). Moreover,
Horgan testified that Manwill had the authority and re-
sponsibility to make recommendations to Hargan con-
cerning the hiring, firing, and discipline of the insulators
under his supervision and further testified that Manwill's
recommendations in those respects were effective-
Hargan relied on them. As a matter of fact the record
reveals that Manwill recommended the discharge of five
insulators and that Hargan each time accepted his recom-
mendation. The aforesaid evidence warrants the infer-
ence that during the time material Foreman Manwill pos-
sessed the authority to effectively, recommend employees
for layoff.
That Manwill, pursuant to his authority to select em-
ployees for layoff, was the one who selected McCarty
for layoff on 26 September and effectively recommended
his layoff to management, is revealed by Hargan's and
Manwill's following conduct. On 26 September, at the
start of the workday, Hargan notified McCarty that al-
though insulators would be laid off that day due to a
lack of work, McCarty would not be one of them, but
would be reassigned from his position as foreman to
work as a rank-and-file insulator under Manwill's super-
vision. Thereafter Hargan never said anything to the
contrary to McCarty and, when, on the next working
day, 29 September, Local 16's business agent Andrews
visited the Project and told Hargan he was there to
speak to management about McCarty's layoff, Hargan re-
plied by stating that "he [Hargan] did not have anything
to do with [McCarty's layoffl that he'd told [Manwill] to
lay off seven people." Similarly, when Andrews told
Manwill he had come to the Project to speak to manage-
ment about McCarty's layoff, Manwill, before even
speaking to anyone from management, replied by stating
that Andrews was just wasting his time talking to man-
agement about McCarty's layoff because McCarty was
not going to be put back on the job. Hargan's and Man-
will's aforesaid conduct warrants the inference that Man-
' will, not Hargan, was the person who selected McCarty
for layoff. This conclusion is buttressed by the undis-
puted fact that in refusing to rehire McCarty on 6 Octo-
ber management relied solely on Manwill's recommenda-
tion. In this regard, Manwill testified that Insulating Su-
perintendent Hargan simply agreed with Manwill's rec-
ommendation that McCarty not be rehired and told
Hargan to speak with Project Manager Null about the
matter and, as I have found supra, when Manwill spoke
to Null and stated he did not want McCarty on his job,
that Null responded by stating that because Manwill was
the foreman, if he did not want McCarty working under
his supervision, Null would abide by his decision.
would be lolanwill, not he, who would be supervising the remaining insu-
lators not selected for layoff Hargan did not press his request that
McCarty corroborate with Manwill in preparing the list.
Considering that the record reveals it was the practice
in Local 16's area that insulator foremen make effective
recommendations regarding layoffs; considering that
Foreman Manwill, who was a supervisor within the
meaning of Section 2(11) of the Act, admittedly had the
authority to effectively recommend the hiririg, firing, and
discipline of the insulators under his supervision and ex-
ercised this authority; considering that Manwill specifi-
cally exercised this authority on 6 October when he ef-
fectively recommended that Respondent not rehire
McCarty to work under his supervision; considering that
Manwill was asked by Hargan to prepare and submit to
Hargan a list of the insulators whom he recommended
for layoff; considering that McCarty, who was scheduled
to work under Manwill's supervision the next working
day, was chosen for layoff even though Hargan had ear-
lier told him that in view of the reduction in force he
would be reassigned to work as a rank-and-file employee
under ManwilPs supervision and not included among the
layoffs; consideririg that Hargan admitted to Local 16's
business agent Andrews' that Manwill, not Hargan, was
responsible for McCarty's layoff and that Hargan had ab-
solutely nothing to do with McCarty's layoff; and con-
sidering that Manwill, in speaking to Local 16's business
agent Andrews, spoke as if he had the absolute authority
to block McCarty's employment. These considerations,
viewed in their totality, warrant the inference that Man-
will possessed the authority to effectively recommend in-
sulators for layoff and in fact exercised that authority in
connection with the 26 September layoff and more spe-
cifically that he was the key person in management's de-
cision to select McCarty for layoff and that Insulating
Superintendent Hargan was only nominally invOlved in
the selection of McCarty for layoff.
In concluding that Foreman Manwill was the keyper-
son in management's decision to select McCarty for
layoff and that Insulating Superintendent Hargan was
only nominally involved in this decision, I have consid-
ered Hargan's and Manwill's testimony that Manwill had
absolutely nothing whatsoever to do with McCarty's
layoff. Hargan testified that the list of insulators recom-
mended for layoff submitted to him by Manwill did not
include McCarty's name. Hargan further testified that
Hargan personally selected McCarty for layoff because
he had been instructed by Project Manager Null to in-
clude one of the two insulator foremen among the insula-
tors being laid off. Manwill testified that he had absolute-
ly nothing to do with McCarty's selection for layoff and
that the list of seven names that he submitted to Hargan
with the recommendation that they be laid off did not in-
clude McCarty's name.
Hargan's and Manwill's testimonial demeanor was
poor when they gave the aforesaid testimony. Moreover,
as I have previously found, Hargan's testimony concern-
ing the closely related subject of his reason—unsatisfac-
tory work performance--for selecting McCarty over
Manwill for layoff was either false in a number of re-
spects or otherwise without substance. Also, as I have
noted previously, Respondent failed to call Project Man-
ager Null to corroborate Hargan's testimony that it was
Null's instruction that one of the two insulator foremen
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be laid off that in effect triggered Hargan's decision to
lay off McCarty. Respondent's failure to call Null to cor-
roborate Hargan's testimony on this significant point
warrants the inference that his testimony would have
contradicted Hargan's and been adverse to Respondent.
See International Automated Machines, 285 NLRB 1122
(1987). These considerations, when viewed in the context
of the above-described factors that demonstrate that
Manwill was the key person in management's decision to
lay off McCarty and that Hargan was only nominally in-
volved in the decision, have persuaded me to reject Har-
gan's and Manwill's testimony.
The record establishes that Foreman Manwill, in effec-
tively recommending McCarty's layoff, was motivated
by his belief that, when McCarty started work the next
day as a rank-and-file insulator under Manwill's supervi-
sion, he would actively pursue his duties as Local 16's
Project steward. My reasons for reaching this conclusion
follow.
McCarty was notified of his layoff on 26 September
by Foreman Manwill just approximately 3 hours after
Manwill heard Local 16's business agent Andrews state
that McCarty would be Local 16's steward when he
started working as a rank-and-file insulator the next
workday. Previously, on 26 September, Insulating Super-
intendent Hargan had advised McCarty, and Foreman
Manwill had re-advised McCarty, in the presence of An-
drews, that several insulators would be laid off later that
day and that McCarty, who would not be among those
laid off, would be reassigned effective the next workday
to work under Manwill's supervision as a rank-and-ffie
insulator. The aforesaid timing and precipitant nature of
McCarty's layoff constitutes strong evidence of unlawful
motivation. See, e.g., NLRB v. United Mineral & Chemi-
cal Corp., 391 F.2d 829, 833 (2d Cir. 1968); NLRB V.
Rain-Ware Inc., 732 F.2d 1349, 1354 (7th Cir. 1984);
NLRB v. Windsor Industries, 730 F.2d 860, 864 (2d Cir.
1984) (timing alone may be sufficient to establish that an-
tiunion animus was a motivating factor in a termination
decision). It stretches credulity too far to believe that
there was only a coincidental connection between
McCarty being appointed Local 16's Project steward at
approximately 10 a.m. and his abrupt layoff only 3 hours
later, when previously that same day he had been ad-
vised by Hargan and then re-advised by Manwill that he
would not be one of those laid off, but that due to the
reduction in the work force caused by the layoffs he was
being reassigned to work with the tools as a rank-and-file
insulator under Manwill's supervision. The only thing
that changed in the intervening hours between Hargan's
assurance to McCarty that he would be reassigned to
work with the tools as a rank-and-file insulator, rather
than be included in the layoff, was the fact that Manwill
learned that when McCarty commenced work as a rank-
and-file insulator that McCarty would also be Local 16's
Project steward.
On 26 September, on learning that McCarty on
Monday, 29 September, would replace insulator Wright
as Local 16's Project steward, Manwill informed
McCarty and other insulators that come Monday things
would change on the job and warned that he did not
intend to put up with any of "McCarty's shit." McCarty
responded by stating that come Monday what would
change would be that because he was Project steward
Manwill would not be able to send insulators to work
under unsafe conditions on wet scaffolding in the rain.
Manwill denied having done this, but two of the insula-
tors, in response to McCarty's questions, stated that
McCarty's accusations were true and that ManwilI had
told them to work on wet scaffolding under unsafe con-
ditions or to take their tools and leave the Project. By
his above-described conduct McCarty made it abundant-
ly clear to Manvvill that while employed as a rank-and-
file insulator under his supervision, he intended to active-
ly and aggressively perform his duties as Local 16's
Project steward. Likewise, it is clear that by placing
IVIanwill on notice that he intended to actively and ag-
gressively perform his duties as Local 16's Project stew-
ard, that McCarty angered Manwill. For, on 26 Septem-
ber following McCarty's above-described remarks to
Manwill, which were made during coffeebreak in the
employees' change trailer, Manwill told insulator Davis
that Manwill did not intend to let anyone speak to him
the way McCarty spoke to him in the change trailer
during the coffeebreak.
Also relevant in evaluating Respondent's motivation
for McCarty's layoff is the fact that at different times
Respondent has advanced different reasons for his layoff.
During the unfair labor practice hearing Insulating Su-
perintendent Hargan testified initially that he selected
McCarty for layoff, rather than Foreman Manwill, be-
cause of McCarty's unsatisfactory work performance and
conduct. Subsequently, Hargan belatedly testified that
besides the aforesaid reason, there was another reason
why McCarty was selected for layoff, namely, Hargan
thought he would be hostile and jealous if he was demot-
ed from foreman to rank-and-file insulator. Prior to the
unfair labor practice hearing, in defending itself against
McCarty's charge in this case, Respondent submitted a
statement of position to the Board's Regional Director in
which it stated, in substance, that the sole reason Re-
spondent selected McCarty for layoff was because on nu-
merous occasions McCarty had spoken to the customer
for whom Respondent was building the Project's power
generator and told the customer that Respondent was
not doing the insulation work according to the job speci-
fications. hi his testimony concerning the reasons for
McCarty's layoff, Hargan did not mention, either direct-
ly or by implication, the alleged conversations between
McCarty and Respondent's customer relied on in the
statement of position submitted to the Board's Regional
Director. I am of the opinion that Respondent's above-
described inability to settle on the reason or reasons for
McCarty's selection for layoff lends support to the claim
that Respondent's fear that McCarty, as a rank-and-file
employee, would actively pursue his duties as Local 16's
Project steward was a motivating factor in Respondent's
decision to lay him off. See NLRB v. Teknor Apex Co.,
468 F.2d 692, 694 (1st Cir. 1972), quoting A. .I. Krajewski
Mfg. Co. v. NLRB, 413 F.2d 673, 676 (1st Cir. 1969) ("an
unfavorable inference may be drawn against the compa-
ny for its inability to settle upon an explanation for the
discharge. This failure in itself lends support to the
BABCOCK & WILCOX CONSTRUCTION CO.
_ .
641
theory that the employees' union support was the real
explanation"); NLRB v. Schill Steel Products, 340 F.2d
568, 573 (5th Cir. 1965); and NLRB v. Georgia Rug Mill,
308 F.2d 89, 91 (5th Cir. 1956).
As I have described in detail supra, each of the reasons
advanced by Respondent to justify McCarty's layoff,
whether advanced during the hearing' or in its statement
of position to the Regional Director, was either without
substance and/or in the nature of a pretext. The lack of
substance and the pretextual nature of the reasons ad-
vanced by Respondent to justify McCarty's layoff, to-
gether with the other factors set forth above, further
support the inference that the reason for McCarty's se-
lection for layoff was Foreman Manwill's fear that as a
rank-and-file employee he would actively pursue his
duties as Local 16's Project steward. See Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
The aforesaid considerations—Foreman Manwilrs
knowledge that McCarty would be Local 16's Project
steward when he began work as a rank-and-file insulator
under Manvvill's supervision, Manwill's knowledge and
belief that McCarty intended to actively and aggressively
perform his duties as Project steward, Manwill's anger at
having learned that McCarty intended to actively pursue
has duties as Project steward, the timing and abruptness
of McCarty's layoff coming only a few hours after his
appointment to the position of Local 16's Project stew-
ard and only a few hours after Insulating Superintendent
Hargan and Foreman Manwill had indicated he would
not be among those selected for layoff, the inability of
the Respondent to settle on an explanation for McCarty's
layoff, and the lack of substance and the pretextual
nature of the reasons advanced by Respondent to justify
McCarty's selection for layoff—when considered in their
totality persuade me that Foreman M anwill in effectively
recommending McCarty's layoff was motivated by his
fear that, when McCarty began work the next workday
under his supervision as a rank-and-file insulator,
McCarty would actively and aggressively pursue his
duties as Local 16's Project steward.
Having found that Foreman Manwill was the keyper-
son in management's decision to lay off McCarty and
that Insulating Superintendent Hargan was only nominal-
ly involved in the decision, and having also found that
Foreman Manwfil, in effectively recommending McCar-
ty's layoff, was motivated by his fear that McCarty
would actively and aggressively pursue his duties as
Local 16's Project steward when he started work the
next day as a rank-and-file employee, I find that the Gen-
eral Counsel has established by a preponderance of the
evidence that a motivating factor in Respondent's deci-
sion to lay off McCarty was its fear that when he com-
menced work as a rank-and-file employee that he would
actively and aggressively pursue his duties as Local 16's
Project steward. 38 In view of this and because it is a
38 It makes no difference that Insulating Superintendent Hargan and
Project Superintendent Frost, the management officials who made the ul-
timate decision to select McCarty for layoff, may not have had this
motive. For, as I have found supra, Hargan and Frost were only nomi-
nally responsible for McCarty's layoff, whereas Foreman Manwill,
having effectively recommended McCarty's layoff, was the keyperson m
management's decision. Manwill, as I have found supra, knew that
violation of Section 8(a)(3) and (1) of the Act for an em-
ployer to discriminate against an employee because of
the employee's activity as a union steward, the Respond-
ent, in order to avoid liability for McCarty's layoff under
Section 8(a)(3) and (1) of the Act, must establish by a
preponderance of the evidence that it would have laid
him off even absent his appointment as Local 16's
Project steward. See Wright Line, 251 NLRB 1083
(1980). See also NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Respondent has failed to meet
its burden. For, as I have found previously in this deci-
sion, Respondent's reasons for selecting McCarty for
layoff, in particular Hargan's testimony that Null in-
structed him to lay off one of the two insulator foremen,
were completely without substance and/or in the nature
of a pretext.
Based on the foregoing I fmd that Respondent violated
Section 8(a)(3) and (1) of the Act by laying off McCarty
on 26 September because of its fear that, when McCarty
commenced to work as a rank-and-file employee, he
would actively perform his duties as Local 16's Project
steward.39
In so concluding I have considered that it is not a vio-
lation of the Act for an employer to refuse to hire an ap-
plicant because of the applicant's union activity engaged
in while previously employed by the employer as a statu-
tory supervisor. See Vail Associates, 186 NLRB 139, 141-
142 (1970). I am persuaded, however, that the instant
case is governed by Columbus Iron Works Co., 107
NLRB 1354 (1954), in which the Board, in pertinent
part, stated (id. at 1354):
We agree with the Trial Examiner that the Re-
spondent violated Section 8(a)(3) of the Act by its
refusal to hire former Supervisor Day in a rank-and-
file capacity because it feared that he would be
active in behalf of the Union.. . . This is not a case
involving an employer's right to refuse to hire in a
nonsupervisory capacity, a former supervisor dis-
charged because he engaged in union activities.
Former Supervisor Day was laid off from his super-
visory position and was not recalled to that position
for economic reasons, as the Respondent contended
and proved, and not because of his activities in
behalf of the Union.
In the instant case Respondent refused to employ
McCarty in a rank-and-file capacity because it feared
that as Local 16's Project steward McCarty would be
active on behalf of that Union while employed as a rank-
and-file employee. Also, as in Columbus Iron Works, this
McCarty would be Local 16's Project steward when he began work as a
rank-and-file employee under Manwill's supervision and Manwill was an-
gered by this. See Grand Rapids Die Casting Corp. v. NLRB, 831 Fid
112 (6th Cir 1987), and Boston Mutual Lift Insurance Co. a NLRB, 692
F.2d 169 (1st Cir. 1982).
39 Although it is not alleged in the complaint as a violation of the Act,
counsel for the General Counsel argues that Respondent's 6 October re-
fusal to hire McCarty also violated Sec. 8(a)(3) and (1) for the same rea-
sons as McCarty's 26 September layoff violated the Act. I have not
passed on this contention because, even assuming Respondent's 6 October
refusal to hire McCarty violated Sec. 8(a)(3) and (1), it would not materi-
ally change the remedial order in this case.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is not a situation involving an employer's right to refuse
to hire in a nonsupervisory capacity a former supervisor
discharged because he was engaged in union activities
while employed as a supervisor. Here McCarty was in
effect laid off from his supervisory position for economic
reasons and not because of his activities on behalf of
Local 16. I realize that the Court of Appeals for the
Fifth Circuit in Columbus Iron Works refused to enforce
the Board's Decision and Order. NLRB v. Columbus Iron
Works, 217 F.2d 208 (5th Cir. 1954). Nevertheless, as an
administrative law judge of the Board I am obligated to
follow Board precedent where a conflict exists between
the Board and court decisions. See, for example, Insur-
ance Agents (Prudential Insurance), 119 NLRB 768, 772-
773 (1957). In any event, the essential consideration in
the court's opinion that resulted in the court's refusal to
enforce Columbus Iron Works is not present in this case.
There, the court accepted the respondent's argument that
"it had a right to refuse employment to Day because he
had engaged in union activities while he was a foreman,"
because, the court concluded, "[a] person who has been
disloyal in one capacity may be disloyal in another."
NLRB v. Columbus Iron Works Co., 217 F.2d at 209-210.
Here there is insufficient evidence to establish that
McCarty engaged in activities on behalf of Local 16
while employed as a supervisor. Moreover, even if the
record does establish that he had done so, the record, as
I have described supra, establishes that this was not the
consideration that motivated Respondent's decision not
to continue to employ him as a rank-and-file employee.
D. The Refusal to Rehire Davis
The complaint in Case 20-CA-21027 alleges in essence
that Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to hire Davis on 6 October because of
union and/or concerted activities. For the reasons set
forth hereinafter I find that the General Counsel has
proven by a preponderance of the evidence that a moti-
vating factor in Respondent's 6 October decision not to
hire Davis was Foreman Manwill's hostility toward him
because Davis had been Local 16's Project steward
when he had been previously employed by Respondent
at the Project under Manwill's supervision."
The record reveals that Foreman Manwill was the
keyperson in management's 6 October decision not to
rehire Davis and reveals that the other members of man-
agement involved in the decision—Insulating Superin-
tendent Hargan and Project Manager Null—were only
nominally involved. Thus, as described in detail supra,
Manwill testified that when he observed that McCarty
and Davis on 6 October had been dispatched by Local
16 to the Project, that he immediately went to Insulating
Superintendent Hargan, that he recommended to Hargan
that Davis and McCarty not be hired because "the job is
going smooth now and we do not need a disruptive
force," and that Hargan replied by simply stating that he
agreed with Manwill's recommendation and told him to
40 As I have previously indicated, the law is settled that it is a viola-
tion of Sec 8(a)(1) and (3) of the Act for an employer to discnminate
against an employee because of the employee's activity as a union stew-
ard.
speak to Project Manager Null about the matter. And, as
I have found supra, Manwill went to Null and told him
that he did not want to hire McCarty or Davis because
they were "troublemakers" and, in response, Null stated
that because Manwill was the foreman that if he did not
want Davis or McCarty working under his supervision
that Null would abide by his decision. In view of these
circumstances it is clear that Respondent's 6 October re-
fusal to hire Davis Was based on Foreman Manwill's ef-
fective recommendation and that Manwill's superiors in
the supervisory hierarchy were only nominally involved
in the decision.4'
The record establishes that Foreman Manwill effec-
tively recommended that Respondent not hire Davis be-
cause Davis, when previously employed at the Project,
had been Local 16's Project steward. My reasons for
reaching this conclusion follow.
On 29 September Local 16's business agent Andrews
appointed Davis to be Local 16's Project steward in
place of McCarty who, as I have found supra, was termi-
nated by Foreman Manwill the previous workday, An-
drews at this time also instructed Davis to look at the
job specifications for the insulation work being per-
formed to be sure that the work was being done accord-
ing to the job specifications." Later that same morning
Manwill told Davis he had heard Davis had been ap-
pointed Local 16's Project steward. Davis acknowledged
this was true and at the same time asked to see the job
specifications for the insulation work being performed.
Manwill responded by warning that Davis, like
McCarty, would be terminated if he asked too many
questions, like McCarty had done, about the insulation
work. In other words, the record establishes that Davis,
promptly on being appointed Local 16's Project steward,
made it clear to Foreman Manwill, by requesting as
steward to see the job specifications, that he intended to
actively perform his duties as Local 16's Project steward
and that Manwill responded by threatening to fire him if
he actively pursued his duties as steward.
Also relevant in evaluating Respondent's motivation
for its 6 October refusal to hire Davis is that at different
times Respondent has advanced different reasons for its
conduct. In its statement of position submitted to the
Board's Regional Director prior to the unfair labor prac-
tice hearing in this case, Respondent stated its reason for
not hiring Davis on 6 October was because he had previ-
ously quit his job at the Project and that in view of this
he was not eligible to be rehired because of the Respond-
ent's policy of not hiring former employees at a project
where they had been previously employed and quit.
During the hearing, Respondent did not present evidence
41 1 also note that Hargan testified that Foreman Manwill possessed
the authority to effectively recommend the hiring and firing of the insula-
tors employed under his supervision, thus Respondent's conduct on 6 Oc-
tober of, in effect, delegating the decision not to hire Davis and McCarty
to Foreman Manwill is perfectly consistent with Manwill's customary au-
thority.
42 Previously that day Andrews had informed Project Manager Null
and Project Superintendent Frost that several of the insulators had com-
plained to Andrews about the way the insulation work was being done,
that they did not feel the job specifications were being followed, and that
they had told him that the work was "shoddy."
BABCOCK & WILCOX CONSTRUCTION CO. 643
to show that a reason or the reason for its refusal to hire
Davis was due to the policy set forth in its statement of
position, and does not rely on this reason as a justifica-
tion for its conduct. Instead Insulating Superintendent
Hargan testified that his reason for refusing Davis was
that, when Davis had previously quit work at the
Project, he had told Hargan that he would not work
under the supervision of Foreman Manwill, the only in-
sulator foreman employed at the Project. Manwill, on
the other hand, testified that in effectively recommend-
ing to Hargan and Null that Davis not be hired, that, in
addition to the above reason offered by Hargan, he based
his recommendation on several additional considerations,
namely, that when Davis was previously employed
under ManwilPs supervision that Davis had been a "non-
performer," and "ship disturber" or a "disruptive force"
who had created problems on the job. Also, as I have
found supra, when Manwill spoke to Null and recom-
mended that Davis not be hired, he supported his recom-
mendation by explaining to Null that Davis had been a
"troublemaker" when previously employed. The above-
described inability to settle on the reason or reasons for
its refusal to hire Davis on 6 October lends support to
the General Connsel's claim that Davis' activity as Local
16's Project steward was a motivating factor in Respond-
ent's decision not to hire him See NLRB v. Teknor-Apex
Co., 468 F.2d 692, 694 (1st Cir. 1972); NLRB v. Schill
Steel Products, 340 F.2d 568, 573 (5th Cir. 1965); NLRB
v. Georgia Rug Mill, 308 F.2d 89, 91 (5th Cir. 1962).
In addition to its inability to settle on a reason for its
refusal to rehire Davis, Respondent's Project manager
Null and Insulator Foreman Manwill on 6 October, in
response to McCarty's request for an explanation for Re-
spondent's refusal to hire either Davis or McCarty, re-
fused to state any reason but instead threatened to have
Davis and McCarty arrested if they did not promptly
vacate the premises. Respondent's refusal to give Davis
an explanation for its refusal to hire him lends additional
support to the General Counsel's claim that Respondent's
refusal to hire Davis was discriminatively motivated.
As I have described supra, each of the reasons ad-
vanced by Respondent for its refusal on 6 October to
hire Davis, whether advanced at the hearing or in its
statement of position, was completely unfounded and
without any substance whatsoever; it either did not exist
or no evidence was presented to prove that it existed.
This circumstance, when considered together with the
other circumstances set forth above, further supports the
inference that the real reason for Respondent's refusal to
hire Davis was because of his activity as Local 16's
Project steward. See Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966). This inference
is especially appropriate in the instant situation because
the only support in the record for Manwill's character-
ization of Davis as being a "troublemaker" and a "ship
disturber" or "disruptive force" who had created prob-
lems on the job is Davis' conduct as Local 16's Project
steward.
Also relevant in evaluating Respondent's motive for
refusing to hire Davis is that even though it would seem
that if its refusal was predicated on legitimate business
considerations, it would produce harmonious explana-
tions by the management officials involved; it failed to
do so in the instant case. As I have described in detail
supra, Foreman Manwill's testimony about Respondent's
decision not to hire Davis was internally inconsistent in
certain significant respects and his testimony concerning
the decision did not jibe with the account of what oc-
curred given by the other management official involved,
Insulating Superintendent Hargan, and the third manage-
ment official involved, Plant Manager Null, for some un-
explained reason was not called to testify by Respondent.
These circumstances bolster the inference that the deci-
sion not to hire Davis on 6 October was discriminatively
motivated.
Lastly, Respondent's refusal to hire Davis occurred
just approximately 1 week after Foreman Manwill's ter-
mination of McCarty because Manwill feared that
McCarty would actively perform his duties as Local 16's
Project steward. Davis, on being appointed McCarty's
replacement as steward, immediately indicated to Fore-
man Manwill that he intended to actively pursue his
duties as steward. These factors, when considered with
all the other factors set -forth above, overwhelmingly
demonstrate that Manwill's recommendation that Davis
not be hired was motivated by Davis' activity as Local
16's steward.
Considering that Davis by his conduct indicated to
Foreman Manwill he intended to actively perform his
duties as Local 16's steward; considering Manwill threat-
ened to fire Davis if he actively performed his duties as
Local 16's steward; considering the inability of Respond-
ent to settle on an explanation for refusing to hire Davis;
considering Respondent's refusal to give Davis an expla-
nation for its refusal to hire him; considering that the
several reasons advanced to justify Respondent's decision
not to hire Davis were completely without substance;
considering the internal and external inconsistencies be-
tween the testimony of two of the three management of-
ficials involved in the decision not to hire Davis and the
unexplained failure of the third official to testify; and
considering the timing of Manwill's recommendation that
Davis not be hired, coming right after Manwill's recom-
mendation that McCarty be laid off because Manwill
feared McCarty would actively perform his duties as
Local 16's steward—these considerations, in their totali-
ty, have persuaded me that Foreman Manwill in effec-
tively recommending that Respondent not rehire Davis
was rnotived by the fact that when previously employed
at the Project, Davis had been Local 16's Project stew-
ard.
Having found that Foreman Manwill was the keyper-
son in management's decision not to rehire Davis on 6
October and that Insulating Superintendent Hargan and
Project Manager Null were only nominally involved in
the decision, and having also found that Foreman Man-
will in refusing to rehire Davis was motivated by the
fact that when Davis had been previously employed at
the Project by Respondent, he was Local 16's Project
steward, I fmd that the General Counsel has established
by a preponderance of the evidence that a motivating
factor in Respondent's refusal on 6 October to rehire
Davis was that, when previously employed by Respond-
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent at the Project, Davis had been Local 16's Project
steward.43 In view of this and because it is a violation of
Section 8(a)(3) and (1) of the Act for an employer to dis-
criminate against an employee because of the employee's
status or activity as a union steward, Respondent, in
order to avoid liability under Section 8(a)(3) and (1) of
the Act for its refusal to rehire Davis, must demonstrate
by a preponderance of the evidence that it would have
refused to hire Davis on 6 October even absent his
having been Local 16's steward when previously em-
ployed at the Project. See Wright Line, 251 NLRB 1083
(1980). See also NLRB v Transportation Management
Corp., 462 U.S. 393 (1983). Respondent failed to meet its
burden. For, as I have found supra, Respondent pro-
duced no evidence to support some of the reasons it ad-
vanced to justify its refusal to hire Davis and, regarding
the remaining reasons, the evidence establishes they were
completely without substance—they did not exist.
Based on the foregoing, I find that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by refusing to hire
Davis on 6 October because Davis, when previously em-
ployed at the Project by Respondent, had been Local
16's Project steward.
THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by laying off Dennis McCarty on 26
September 1986 because of its fear that, when he began
work as a rank-and-file employee on 29 September 1986,
he would actively perform his duties as Local 16's
Project steward, and having found that Respondent fur-
ther violated Section 8(a)(3) and (1) by refusing to rehire
Raymond Davis on 6 October 1986 because Davis had
been Local 16's Project steward when previously em-
ployed, I shall recommend that Respondent cease and
desist from these unfair labor practices and to take ap-
propriate affirmative action to effctuate the policies of
the Act.
I note that even though the record indicates that the
construction phase of the Project ended about 13 Febru-
ary 1987, I have recommended the Board's traditional
make-whole remedy for the unfair labor practices found
herein, with the understanding that all reinstatement and
backpay issues posed by the completion of the construc-
tion phase of the Project will be resolved by a factual
inquiry during the compliance stage of this proceeding.
See Dean General Constructors, 285 NLRB 573 (1987).
However, in view of the fact that the construction phase
of the Project has ended, I Shall recommend that the Re-
spondent mail copies of the notice recommended herein
to each employee employed by Respondent on the
Project as an insulator during the period of 26 September
48 It makes no difference that Insulating Superintendent Hargan and
Project Manager Null, the management officials who made the ultimate
decision not to rehire Davis, may not have had this motive in approving
Foreman Manwill's recommendation that Davis not be rehired. For, as I
have found supra, Hargan and Null were only nominally responsible for
Respondent's refusal to rehire Davis, whereas, Foreman Manwill, having
effectively recommended that Respondent not rehire Davis, was the key-
person in management's decision. Manwill, as I have found supra, in rec-
ommendmg against Davis' rehire was motivated by the fact that Davis
previously had been employed as Local 16's Project steward.
through 6 October 1986, the time of the unfair labor
practices herein. See Daniel Construction Co., 239 NLRB
1335 fn. 1 (1979), enfd. 634 F.2d 621 (4th Cir. 1980); Bell
& Howell Schools, 226 NLRB 601 fn. 2 (1976); Wolfson
Mfg. Co., 197 NLRB 970 (1972); M W. Kellogg Con-
structors, 273 NLRB 1049 (1984).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4 4
ORDER
The Respondent, Babcock & Wilcox Construction Co.,
Inc., Marysville, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Laying off or refusing to hire or in any other
manner discriminating against any employee because of
the employee's activity on behalf of International Asso-
ciation of Heat and Frost Insulators and Asbestos Work-
ers, Local Union No. 16, AFL-CIO or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dennis McCarty immediate and full reinstate-
ment to the rank-and-file position he would have filled
on 29 September 1986 and offer Raymond Davis imme-
diate and full reinstatement to the position he would
have filled on 6 October 1986 or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges
previously enjoyed, and make them whole, with inter-
est,43 for any loss of earnings, and other benefits suffered
as a result of the discrimination against them.
(b) Remove from its files any reference to Dennis
McCarty's unlawful layoff and its unlawful refusal to
rehire Raymond Davis and notify those employees in
writing that it has done so and that it will not use the
layoff or refusal to rehire against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Mail a copy of the attached notice marked "Ap-
pendix"46 to each individual it employed as an insulator
44 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
46 In accordance with the Board's decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S C. § 6621) shall be computed m accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
46 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 Nation-
Continued
BABCOCK & WILCOX CONSTRUCTION CO. 645
on the Feather River Cogeneration Project from 26 Sep-
tember through 6 October 1986. Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent's authorized repre-
sentative, shall be mailed by Respondent immediately
upon receipt.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
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 or-
dered us to post and abide by this notice.
WE WILL NOT lay off or refuse to hire or otherwise
discriminate against any of you for your activity on
behalf of International Association of Heat and Frost In-
sulators and Asbestos Workers, Local Union No. 16,
AFL-CIO or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Dennis McCarty immediate and full re-
instatement to the rank-and-file position he would have
filled on 29 September 1986 and offer Raymond Davis
immediate and full reinstatement to the position he
would have filled on 6 October 1986 or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges previously enjoyed, and make them whole, with in-
terest, for any loss of earnings, and other benefits suf-
fered as a result of the discrimination against them.
WE WILL remove from our files any reference to
Dennis McCarty's unlawful layoff and our, unlawful re-
fusal to hire Raymond Davis and notify them in writing
that we have done so and that we will not use the layoff
or refusal to hire against them in any way.
BABCOCK & WILCOX CONSTRUCTION CO.,
INC.