Bechtel Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1973

201 N.L.R.B. 475 (N.L.R.B. 1973)

BECHTEL CORPORATION 475
Bechtel Corporation and Jerry R. Willsey. Case
28-CA-2527
January 29, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 29, 1972 , Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding . Thereafter , the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
However , we do not pass on the Administrative Law Judge's
alternative theory for dismissing the complaint set forth in fn. 13 of his
Decision.
charged by Respondent on or about January 26, 1972, in
violation of Section 8(aX3) and ( 1) of the Act . Respondent
by its answer admits that it laid off the aforementioned
employees , but denies that its action in doing so was
violative of the Act.
Pursuant to notice , a hearing was held in Phoenix,
Arizona , on June 20, 21, and 23, 1972 . Appearances were
entered on behalf of the General Counsel and the
Respondent and briefs were received from both parties on
August 21, 1972.
Upon the entire record' in this proceeding and my
observation of the witnesses as they testified , I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under , and existing by virtue
of, the laws of the State of Delaware . At all times material
herein , Respondent has maintained a place of business at
Horse Mesa Dam, Arizona , where it has been engaged in a
construction project . During the 12-month period preced-
ing the issuance of the complaint , a representative period,
Respondent purchased and had delivered directly from
outside the State of Arizona goods and materials valued in
excess of $50,000 to its operations in the State of Arizona.
As is admitted by Respondent , it is, and has been at all
times material herein , an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 640, International Brotherhood of Electrical
Workers , AFL-CIO, hereinafter referred to as the Union,
is, and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge : Based on
a charge filed by Jerry R. Willsey on January 27 , 1972, the
complaint herein was issued on April 10, 1972. The
complaint alleges that Willsey, Lloyd Ray Elmore, Jr.,
Jerry Willingham , and Vinton Earl Wheeler were dis-
i During the course of the hearing, Respondent moved that the
testimony of Arthur R, Valenzuela and Kenneth A. Voorhees be stricken on
the ground that pretrial statements were obtained from them by a
representative of the General Counsel without notice to the Respondent.
that , since Valenzuela was a foreman and Voorhees a general foreman at the
time material herein and alleged to be agents of Respondent and supervisors
within the meaning of the Act at the time material herein , statements should
not have been obtained from them without prior notice to Respondent
(relying upon sec . 10056.5 of the Board's Field Manual). It is noted that by
its answer Respondent denies the allegations of agency and supervisory
status of the aforesaid individuals . Neither of the briefs considered the issue
raised by Respondent 's motions upon which ruling had been reserved.
Research revealed two cases in which the application of the aforesaid
section of the Field Manual was considered . Montgomery Ward and Co,
Incorporated 187 NLRB No. 126 , and The Singer Company, 176 NLRB
A. Background Information and Chronology of
Events 2
Willsey was first employed by Bechtel in Arizona for the
period November 1969 to February 1970 as a journeyman
wireman .3 He was referred by the Union to the job and
subsequently became a member thereof in March 1970. He
again worked for Bechtel for approximately a month
commencing in March 1970, based on a referral by the
1089. Neither of the cited cases affords a clear precedent for the disposition
of the issue herein . The record is silent in this proceeding as to whether or
not Respondent was "cooperating" or whether the two witnesses came
forward "voluntarily." This, however , would appear to be of no moment in
disposing of the motions , since it is my opinion that in the circumstances of
this case the failure to give notice would not afford a basis for striking the
testimony of the aforesaid two witnesses . As is explained hereinbelow, even
though the said witnesses did occupy the positions alleged, they did so only
temporarily because of the requirement of Respondent 's contract with the
Union involved herein , and their testimony is not considered to be binding
upon the Respondent. The aforesaid motions are denied.
2 The findings in this section of the Decision are based on undisputed
facts contained in the record
3 The classification of journeyman wireman is that of an employee
within the meaning of the Act.
201 NLRB No. 74
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. He was subsequently referred again by the Union,
in April 1970, this time to Respondent's Mormon Flats
Dam project as a journeyman wireman. During the course
of this period of employment, he was promoted to general
foreman. On November 10, 1970, he was terminated
because of his performance as general foreman. At the
time he was terminated , a number of others were also
terminated who were in job classifications falling within
the category of employees within the meaning of the Act,
and a grievance was filed by the Union on behalf of
Willsey and said employees. In his brief, General Counsel
quotes from a letter from Respondent to the Union which
he correctly points out "reflects Respondent' s animus
toward Willsey." The excerpt reads as follows:
Events leading up to these terminations and subse-
quently this appeal are:
1. E. A. (Babe) Ruth, Electrical Superintendent,
went into the small trailer that serves as ware-
house and change shack and found five wiremen
and an apprentice sitting down and drinking
coffee. The five journeymen are: Charles A.
Porter, Stan Carr, Edward Cesena, Joe Ramsey,
and Jack Hall. The apprentice was subsequently
reinstated at the request of the Apprentice
Coordinator.
2. Mr. Ruth called this situation to the attention
of Jerry Willsey, General Foreman and instructed
him to "clean up the situation". When Mr.
Willsey failed to follow through on these instruc-
tions he and those men listed above were
terminated. (Copies of terminations attached.)
As a result of the grievance procedure, Willsey was
reinstated on January 26, 1971, to his job as general
foreman, the job he held at the time of his discharge on
November 10, 1970. A week after his reinstatement he was
demoted to journeyman wireman and was terminated
April 2, 1971. It is noted that his notices of termination for
November 10, 1970, and April 2, 1971, stated that he was
not eligible for rehire. In June or July 1971, the Union
referred Willsey to a job with Respondent at Horse Mesa
Dam, Arizona, but Respondent refused to hire him without
giving him any reason therefor.
It appears that the grievance with respect to the
discharge of Willsey and at least three of the other six men
was not fully resolved in that a dispute remained as to
backpay. The Union continued to press for backpay, and
Willsey and three of the others who were discharged on
November 10, 1970, including Stan Carr, filed a civil action
in the U.S. district court on January 26, 1972, to recover
their backpay claim.4 It is noted that Carr, who was one of
the journeymen wiremen discharged on November 10,
1970, was in the employ of Respondent at the time of
Willsey's alleged discriminatory discharge on January 26,
1972. It is further noted that Carr's notice of termination
on November 10, 1970, stated that he was not eligible for
rehire, but that when he was terminated on March 23,
1971, his notice of termination stated that he was eligible
for rehire. Carr had been hired at the Horse Mesa Dam on
January 17, 1972, and remained employed until April 10,
1972, when he terminated his employment for personal
reasons. There is nothing in the record to indicate what
position Respondent took with respect to the rehire of the
others who were involved in the grievance over the
November 10, 1970 , discharges . It is assumed that of said
grievants Carr and Willsey were the only ones employed by
Respondent during the time material herein.
Salt River Project which apparently had a number of
projects in Arizona entered into two contracts with
Respondent with respect to the Horse Mesa Dam, one was
to provide engineering and construction management
services and under the other Respondent was responsible
for construction and procurement. General Electric Com-
pany had a purchase order from Salt River Project under
which it contracted to perform work at Horse Mesa Dam
including rewinding the stators on the three generators at
that site. Under the Respondent 's construction manage-
ment contract with Salt River Project, Respondent acted as
Salt River Project's agent for assuring that GE carried out
the specifications of the aforementioned purchase order.
A dispute arose between the General Electric Company,
hereinafter referred to as GE, and the Union with respect
to GE's employment of electricians at Horse Mesa Dam
who were not members of the Union.5 The dispute was
settled by an agreement that GE would complete its work
at Horse Mesa with electricians referred by the Union who
would be supplied by Respondent to GE as requested by
GE. GE agreed to repay Respondent for the use of said
electricians on a backcharge basis. Although it was
understood that the electricians would work under the
supervision of a technical director employed by GE, there
is no dispute that the electricians supplied by Respondent
to GE were employees of Respondent.
On January 4, 1972, GE commenced using electricians
supplied by Bechtel for the rewinding of stator No. I on
the day shift. For reasons that are immaterial to the issues
in this case, it became apparent that the work on the stator
could not be completed according to schedule and it was
agreed between Respondent and GE that a second shift of
electricians would work on the stator in order to speed up
the completion of the work thereon. (The second shift is
also referred to in the record as the swing shift and night
shift.) By letter dated January 13, 1972, W. W. Webb, who
was in charge of GE's work at the jobsite, informed
Respondent that he proposed to complete the work on
stator No. I by January 24. On that date, GE also
requested that the Respondent supply four electricians to
begin work on a swing shift commencing January 17. The
first electrician to work on the stator on the swing shift
started on January 17. Additional electricians were added
thereafter until a complement of four was reached.
Willsey was referred as a journeyman wireman by the
Union and reported to Respondent's jobsite on January 18.
He was interviewed by Bechtel Superintendents Ivan
Miller and Jerry Gregory. Miller asked Willsey if he had
previously worked for Respondent and Willsey said that he
had, but had been terminated after a dispute with Ruth, a
4 While the record will not support a finding that Respondent had S Apparently GE used employees from its Portland , Oregon , service shop
knowledge of the filing of the action on January 26, it did know that the who were members of another local of the International Brotherhood of
backpay claims were being pressed Electrical Workers.
BECHTEL CORPORATION 477
superintendent. At the interview, Miller asked him if he
had had experience in working on stators and Willsey
stated that he had. Willsey was assigned to the stator night
shift and worked with the other electricians on said crew
under the supervision of John Ascani, GE's technical
supervisor.
On January 18, Respondent was informed by the Union
that according to its agreement with Respondent it would
be necessary for Respondent to have a nonworking
foreman on the swing shift .6 In order to comply, Respon-
dent transferred Voorhees from the day shift as a
journeyman to the night shift as a foreman. GE refused to
be backcharged for more than 1 hour (for timekeeping) of
the foreman's time, since it was not using the foreman for
supervision, so Respondent placed additional electricians
on the swing shift to perform its work as well as that of GE.
On January 25, the Union informed Respondent that it
was also necessary for Respondent to have a general
foreman on the swing shift according to the collective-
bargaining agreement.? Therefore, on January 25, Voo-
rhees was appointed as the general foreman for the night
shift and he picked Valenzuela to be his foreman. As a
result, the night shift on January 25 consisted of a general
foreman, a foreman, four journeymen who were doing the
work for the Respondent, and four journeymen who were
doing the work for GE on its stator.
Shortly after the commencement of the night shift on
January 26, Willsey was removed from the stator crew and
assigned to Respondent's work. Subsequently that evening,
Willsey and the three remaining men who were working on
the stator were notified that they were being laid off. The
reason assigned for the layoff was a reduction in force. The
record discloses that, prior to January 14, there had been
no night shift of electricians at the jobsite, and that,
subsequent to January 26, no night shift of electricians was
utilized at the jobsite.
B. The Discharges
In effect, General Counsel argues that Respondent was
hostile toward Willsey because of the grievance filed on his
behalf over his discharge on November 10, 1970; that
Miller made a mistake in hiring him on January 18, which
he would not have done had he checked with Respondent's
Mesa office; that Leo Moll, the job superintendent of the
Mesa project for Respondent, and Miller were censured for
the mistake and, therefore, were intent upon getting rid of
Willsey; that although GE complained to Respondent that
Willsey had laid down on the job during the night shift of
January 25, "Respondent knew that the complaint about
Willsey from GE was without substance-if not outright
concoction between GE and Respondent"; that "the
motivating cause for Willsey's termination was not the
complaint from GE, but his participation in the griev-
ance"; that when Valenzuela, who was his foreman, would
not agree to the discharge of Willsey for cause, Respondent
decided to eliminate the night shift and terminate the three
men on the stator crew, as well as Willsey, in order to get
rid of Willsey; that "assuming, arguendo, that GE wanted
to terminate the night stator crew on January 27, the
evidence establishes that Willsey would have continued
working under normal circumstances."
The record clearly discloses that Respondent considered
Willsey "not eligible for rehire" and that Leo Moll
(Respondent's top supervisor at Horse Mesa) and Miller
discovered the day after Willsey was hired that they had
made a mistake in hiring Willsey without first checking
with the Mesa office which would have revealed that
Willsey was not eligible for rehire; that they were censured
for having made the mistake; and that they were
determined to find a means of getting rid of Willsey
without inviting a grievance from the Union.
Set forth hereinbelow is a review of the testimony with
respect to the circumstances immediately leading to the
termination of Willsey and three men on the night stator
crew.
Webb testified that on January 25, he went to Miller's
office and asked him what notice was required to terminate
the night shift, that Miller told him "we can do it in 24
hours," and that he (Webb) said he wanted to terminate
the night shift at the end of the shift on January 27. Webb
further testified that the next morning he inspected the
stator and was very displeased with the amount of work
which had been performed by the night shift on January
25; that he discussed with Miller whether the electricians
had worked on the stator the previous night; that Miller
suggested they wait until Ascani came in at the beginning
of the night shift of January 26 to determine whether the
electricians had worked; that when Ascani reported for
work, he (Webb) asked Ascani if they had had a full crew
of four the previous night and Ascani told him that they
had, but that "they didn't put out very much"; that the
only reason Ascani gave for the lack of productivity was
that "Willsey seemed to be disgruntled about something
and unhappy." Webb's testimony which is credited makes
it very clear that he told Respondent that he wanted the
night shift on the stator ended at the end of the shift on
January 26 instead of January 27 as he had previously
directed. Webb admitted that Ascani had told him prior to
January 26 that Willsey was the best producer on the
stator.
Willsey testified that when he reported for work on
January 26, Valenzuela informed him that he was being
removed from the stator crew, that there was a complaint
from GE that the whole shift, and particularly Willsey, had
laid down on the job on the night of January 25. Willsey
further testified that Valenzuela told him that he was being
transferred to "the top of the dam" to do Respondent's
work;8 that shortly thereafter he saw Ascani and asked
him why he (Willsey) was being transferred out of the crew
and Ascani told him that his boss (Webb) complained that
the whole crew, particularly Willsey, had laid down on the
previous night and there was nothing he could do about it;
and that approximately an hour after he started to work on
the top of the dam he was notified that he was being
terminated at the end of the shift along with the three men
who were working on the stator that night.
8 One foreman for up to nine electricians . shift required another general foreman
7 Two general foremen for more than four foremen . There were four 8 Apparently it was feared there might be trouble in the powerhouse if
foremen on the day shift and the addition of a fifth foreman on the night Willsey remained on the stator crew
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valenzuela testified that he was employed as a journey-
man on January 19, on the night shift to work on the
stator, that he was made foreman on January 25, and that
prior thereto he worked on the stator as a member of a
two-man team with Willsey. He further testified that
Wtllsey was the most qualified and most experienced of the
men working on the night-shift stator crew, that dunng the
night shift of January 25, he, as foreman, stopped at the
stator and asked Ascant how the work was progressing and
Ascani made no complaints.
Valenzuela further testified that at the start of the night
shift on January 26, Dodge, the general foreman of the
daytime shift, asked him if he had noticed that Willsey was
not working during the shift of January 25, and that he
replied in the negative; that Miller and Gregory asked him
if he would sign a termination notice for Willsey for
nonproduction and he refused to do so, stating that he had
seen Willsey working and that he and Voorhees said that
Ascani was lying; that Miller stated that Willsey "had to be
terminated that night"; that he was ordered to remove
Willsey from the stator and that he placed him at the top of
the dam; that some time later he, Dodge, Darrell
Ostrander (the job steward), Voorhees, Gregory, and
Miller met and that Miller made the statement "that Jerry
Willsey had to be terminated that night and that if he
wasn't, they were going to eliminate the night crew"; that
he and Voorhees attempted to venfy Ascani's report about
Willsey's lack of production, reminding Ascani that he
considered Willsey the best man he had; that Ascani
replied that on the previous night Wtllsey "seemed that he
was disgruntled or mad or something"; and that some time
later, Miller stated to him, "You leave us no choice. We're
going to have to cut the night shift." He was then informed
that the stator night crew would be terminated and the rest
of the night shift would have the choice of either going on
the day shift or quitting. It appears that two of the
electricians who were given the choice decided to quit and
the others decided to go on the day shift. Valenzuela
further testified that when he was informed that the men
who were not on the stator crew would have the choice of
going on the day shift, he pointed out to Miller that Willsey
was no longer working on the stator crew, but Miller stated
that "they still considered him part of the stator crew." It
appears from Valenzuela's testimony that the immediate
supervisor of an employee being terminated has to sign his
termination notice, that, while he refused to sign the
termination notice for Willsey on the ground that he had
laid down on the job, he did sign the termination notices
for Willsey and the three men remaining on the stator crew
for the reason of a reduction in force, as well as the
termination notices of the two men who had decided to
quit rather than be transferred to the day shift.
The above-outlined testimony is substantially uncontrad-
icted and is credited. There is additional testimony which
corroborates the above-outlined testimony, but no purpose
would be served in setting it forth. However, some of the
witnesses testified to additional matters. For example,
9 It is noted that Voorhees had no hesitation in testifying to matters
apparently harmful to Respondent' s case, but did not testify that he heard
Miller make the statement Ostrander attributed to him, although Ostrander
testified that he (Voorhees) was present Furthermore , Carr was on the day
Ostrander testified that Miller told Dodge and Voorhees:
"Let's make a deal here. You can keep Stan Carr and you
give me Jerry Willsey." (Carr, as indicated heremabove,
was one of the men who was involved in the grievance over
the November 10, 1970, discharges and was employed on
the day shift during the time material herein.) Miller
denied making such a statement. Ostrander's above-quoted
testimony was not convincing and Miller's denial is
credited .9
Ascani testified , and his testimony is credited , that at the
time he affirmed Webb's complaint about Willsey's work
(on the night of January 25), Miller stated that he was
going to get Willsey one way or another and that
Respondent had had trouble with Willsey before. Ascani
further testified that when the complaint was made about
Willsey's production, Miller responded: "Good, we'll fire
him." This testimony was substantially corroborated by
Webb. It does not appear, however, that there is any basis
for finding that GE's complaint about Willsey's production
and its decision to end the night crew was prompted by
some sort of conspiracy with Respondent to aid Respon-
dent in getting rid of Willsey. I am of the opinion that GE's
representatives would not have jeopardized meeting their
schedule in order to participate in a "concoction," as
contended by General Counsel. Furthermore, their candid
testimony of Miller's responses to their complaint about
Willsey's production tends to negate General Counsel's
theory that GE and Respondent were conspirators.
Several of General Counsel's witnesses who worked on
the night stator crew testified that they perceived no
problem with respect to production on the January 25
night shift. Also Voorhees and Valenzuela testified, in
effect, that they did not believe Ascani's report that Willsey
laid down on the job. However, even though at the time
they expressed their doubts they occupied supervisory
positions, they were only temporarily in said positions and
it is evident that their sympathies were not management
oriented . It is concluded , therefore , that their belief that
Ascani lied cannot be imputed to management. Neverthe-
less, it is evident that because of Respondent's animosity
toward Willsey, Respondent seized upon GE's complaint
as a means of getting rid of Willsey. Ascani credibly
testified that he asked Miller if he could keep Willsey for
one more day to see if he could straighten him out and that
Miller replied: "No, you made your complaint, now it's out
of your hands." Ascani was asked to explain why he
wanted to retain Willsey one more day in view of the
decision to terminate the night crew at the end of the shift
on January 26, but his explanation is too confused to
permit drawing any inference therefrom.
It appears from the record that none of the upper
echelon of Respondent 's supervisors at the Horse Mesa
Dam said anything about terminating the night shift until
after it was determined that they were not going to be able
to fire Willsey for poor production. Miller testified that he
wanted Webb to delay the termination of the night crew
for another day so that he could reduce the day shift
shift and it is considered highly unlikely that at the time Miller would have
linked him with Willsey There is no showing in the record that Respondent
has any animosity toward Carr
BECHTEL CORPORATION 479
sufficiently to accommodate some of the men on the night
shift whom they wanted to keep because he wanted to limit
the day shift to a complement of no more than 40.10 While
this explanation is not wholly convincing, the fact remains
that GE directed that its night shift be terminated at the
end of the January 26 shift. He further testified that he was
"left with the impression" after talking to Webb that if he
"let Willsey go with cause" that Webb would continue the
shift for another night (apparently through the night of
January 27).11 It appears that, when Respondent discov-
ered that Voorhees and Valenzuela would not cooperate
with it in discharging Willsey for cause, no effort was made
to persuade Webb to continue the night stator crew one
more night (to the end of the January 27 shift).
As to Respondent's personnel action on the night of
January 26, Moll credibly testified as follows:
A. I informed Voorhees and Valenzuela that they
could go out and talk to the people doing Bechtel
work-go out and talk to our electricians and ask them
if they want to transfer on to days or whether they want
to be terminated or what do they want to do. And all of
the people working for GE I'm going to terminate
them. And I told them that if they elected to be
terminated-Voorhees and Valenzuela-that-
Q. They were to be terminated, you say?
A. Pardon me. If they wanted to be transferred to
days, that we hadn't anticipated laying the shift off that
night so if they were transferred over the next day they
would remain in their present positions because there
were still over 40 men. And anyone else that wanted to
transfer over, it would be up to Dodge to who he
wanted to keep and who he wanted to terminate the
next day and as to what he wanted-what rate he
wanted to keep them at, wireman, foreman. Of course
there wasn't going to be a general foreman because I
was going to have him lay-off people until we only had
40 men and one general foreman.12
No purpose would be served in speculating as to whether
or not Respondent would have transferred Willsey to the
day shift but for its animosity toward Willsey, since, as
found herein, said animosity was not predicated on any
protected activity of Willsey.
It is concluded that Willsey became persona non grata to
Respondent because of his failure to follow an order in his
capacity of general foreman which led to his November 10,
10 By limiting the day shift to 40 , only 4 foremen and I general foreman
would have been required , while if it were increased to more than 40
another foreman as well as a general foreman would have been required
11 This aspect of his testimony is not convincing , since it would appear
that Webb could only have been interested in Willsey's removal from the
crew (which was accomplished by putting him to work at the top of the
dam), not in having him discharged for cause. However , this finding does
not affect my ultimate conclusion.
12 Considerable evidence was introduced into the record with respect to
the fact that the day shift was increased over the 40 -men complement
subsequent to January 26. It is noted that this was, at least partially, due to
the fact that the Union objected to Respondent's assignment of overtime to
employees instead of hiring additional men.
13 Assuming, arguendo, that Respondent's animosity toward Willsey was
predicated on the grievance over his discharge on November 10, 1970, it
would not follow that said animosity was predicated on some protected
activity A discharge of an employee within the meaning of the Act is not
1970, discharge, and thus was wholly unrelated to any
protected activity. He became "not eligible for rehire" at
that time according to Respondent's personnel policy and
remained in that status thereafter, whereas Carr, who was
also discharged on November 10, 1970, and was one of the
subjects of a union grievance over the November 10, 1970,
discharges, was considered eligible for rehire after he had
been reinstated. Even though Carr was rehired at about the
same time that Willsey was (in the middle of January
1972), there is no evidence that management was disturbed
by his rehire, as it was with respect to Willsey's rehire.
Thus, it is concluded that there is no basis for finding that
Respondent's termination of Willsey on January 26, or its
failure to transfer him to the day shift, was motivated by
the grievance.13 It is further concluded that the record will
not support a finding that the employees who were on the
night stator crew of January 26 were terminated on
January 26 in order to terminate Willsey.14 The night
stator crew was terminated upon the direction of GE.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to prove by a
preponderance of the evidence that Respondent unlawfully
discharged Jerry R. Willsey, Lloyd Ray Elmore, Jr., Jerry
Willingham, and Vinton Earl Wheeler on or about January
26, 1972, as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 15
ORDER
The complaint herein should be, and is hereby, dismissed
in its entirety.
unlawful for conduct engaged in while he was a supervisor , even if said
conduct would have been protected if he had been an employee. Vail
Associates, 186 NLRB No. 23; Leonard Niedernter Company, Inc, 130
NLRB 113, and Gibbs Automatic Division , Pierce Industries, Inc., 129 NLRB
196 Thus, it would appear that the discharge of Willsey at a time when he
was an employee for pursuance of a grievance over his discharge while he
was a supervisor within the meaning of the Act would not have been
unlawful
14 Assuming, arguendo, that such was the reason for terminating said
three employees, it would not follow that the reason therefor was unlawful.
since it was not related to any protected activity.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes