Bechtel Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1972

195 N.L.R.B. 1013 (N.L.R.B. 1972)

BECHTEL CORP. 1013
Bechtel Corporation and Harold L. Brown . Case 31-
CA-2145
March 22, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
ferred to as Respondent.' The complaint alleges violations of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, (61 Stat. 136;
65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151 et seq.), herein
called the Act. The parties waived closing argument and
briefs filed by the General Counsel and Respondent have been
carefully considered.
Upon the entire record,' and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
On November 17, 1971, Trial Examiner Leo F.
Lightner issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief, and General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Baord adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Bechtel Cor-
poration, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.'
In the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's dismissal of the amended allegations in the complaint that
Brown's job transfer on May 26, 1971, was also violative of Section 8(a)(3)
and (1).
The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
We find without merit Respondent's exception to the failure of the Trial
Examiner to find that the discriminates (Brown) was reemployed in an
equivalent job on July 20, 1970, and to stop backpay on that date. The
record, as made, shows that Brown's July 20, 1970, night-shift job ceased
on July 31, 1970, as the result of an economic reduction in force. But no
evidence was adduced to show that the same or any day-shift economic
factors affected the continuous duration of the day-shift job from which
Brown was discharged on June 8, 1970, and to which he was returned after
May 24, 1971.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Las Vegas, Nevada, on August 24 and 25,
1971, on the complaint of General Counsel, as amended, and
the answer, as amended, of Bechtel Corporation, herein re-
1. BUSINESS OF RESPONDENT
Respondent is a Delaware corporation, with its principal
offices in San Francisco, California, and it is a general con-
tractor in the building and construction industry, presently
engaged as a general contractor in the construction of a
power plant for Southern California Edison Company, at
South Point, Nevada. During the calendar year 1970, a repre-
sentative period, Respondent purchased and caused to be
shipped to the construction site indicated supplies and
materials valued in excess of $50,000 directly from suppliers
located outside the State of Nevada.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce and in
activities affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America,
Local Union No. 1780, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing, are whether the Respondent
engaged in conduct violative of the provisions of Section
8(a)(3) and (1) of the Act by discharging Harold L. Brown,
on June 8 , 1970, and failing and refusing thereafter to rein-
state said employee , or by transferring Harold L . Brown from
work for Combustion Engineers , to work on the turbine deck,
on or about May 26, 1971, in each instance because said
employee was engaged in union or concerted activities.'
Respondent denies the commission of any unfair labor
practice , and asserts that the discharge was for cause.
Supervisory Personnel
The complaint alleges, the answer admits, and I find that
John F . Sabin , at all times material , was a foreman of Re-
spondent , a supervisor within the meaning of Section 2(11) of
the Act, and an agent of Respondent.
Background
The facts set forth under this section are undisputed.
There is currently in effect a collective -bargaining agree-
ment , herein referred to as agreement , between the Nevada
Chapter of the Associated General Contractors of America,
Inc., and a number of locals of the United Brotherhood of
Carpenters and Joiners of America, including Local Union
' A charge was filed on November 9, 1970. A complaint was issued on
June 18, 1971, and amended at the outset of the hearing herein.
Errors in the transcript have been noted and corrected.
It is undisputed that Brown did work for Respondent for various periods
after his initial discharge. The circumstances are explicated infra.
195 NLRB No. 184
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 1780. This agreement, by its terms, is effective from June
1, 1968, to and including May 31, 1973.4
General Counsel asserts the efforts of Brown, Charging
Party and alleged discriminatee herein, to obtain enforcement
of related union bylaws and trade rules, and apprenticeship
standards , was the underlying reason for the discharge. Rele-
vant provisions of these documents are next set forth:
Agreement provides at page 61 : Appendix "B", Special
Working Rules for Millwrights,-C. No millwright fore-
man shall supervise a crew of more than five men, not
including himself.'-When a foreman is assigned the
responsibility of supervising five or more journeymen he
shall not be allowed to work as a journeyman except for
the purpose of instructing or for incidental assistance to
a journeyman.
Agreement provides at page 64: Appendix " B", para-
graph I, The appropriate Article of the Union By-Laws
governing Millwright Working Rules amended to com-
ply with the National Labor Relations Board require-
ments shall be the guiding factor for all union relations
not treated in this Agreement.
The By-Laws and Trade Rules, of Local Union No.
1780, approved as of October 11, 1968, provide, inter
alias Section 36(A) Any foreman or general foreman
shall have the responsibility along with the Steward to
enforce the By-Laws and current Agreement of the Lo-
cal Union.-
Agreement provides Section VI, D, for an apprentice-
ship program under a joint apprenticeship committee. It
also provides that each employer shall employ at least
one apprentice under conditions established under the
rules and regulations of the joint apprenticeship commit-
tee.
The Apprenticeship Trust Agreement provides, Section
18-Supervision: (A) The apprentice shall work under
the immediate supervision of a journeyman at all times.
During the last six (6) months, or 1000 hours, the ap-
prentice will be permitted to work alone under the gen-
eral supervision of the contractor or employer or his
authorized supervisor.
Agreement provides, Section XIV-Stewards and Busi-
ness Representatives: The Steward is to receive griev-
ances or disputes from employee members of his craft
and shall immediately report them to his business repre-
sentative, who shall immediately attempt to adjust the
grievance or dispute with the employer or his representa-
tive.
Agreement provides, Section XV-Settlement of Dis-
putes: (A) Any grievance or dispute concerning the in-
terpretation or application of this Agreement may be
submitted as a grievance, provided such grievance is
served upon the other party in writing, setting forth the
nature of the grievance. (The grievance procedure pro-
vides for an initial meeting between a representative of
the parties, culminating in final and binding arbitration.)
' While not in evidence, at the outset of the hearing, Respondent asserted
there was in existence an agreement between Respondent and various Inter-
national unions , representing crafts and trades engaged in heavy construc-
tion, including the United Brotherhood of Carpenters and Joiners of
America, which would modify some sections of the local agreement , if there
was a conflict, particularly in relation to the matter of grievance procedures.
Respondent asserted that any grievance procedure would be processed un-
der the national agreement and not the local agreement . Respondent does
not dispute the fact that the working agreement was the local agreement,
and the local agreement was distributed to employees, for their information
relative to their working conditions.
' It appears undisputed that, on September 16, 1968, this provision was
modified to read "nine men."
In August 1969, Brown was dispatched from the union hall
to the Bechtel job at South Point, as a journeyman millwright.
Brown related that he had been a journeyman millwright for
14 years; a member of Carpenters Local 1780, in Las Vegas,
for approximately 3% years; and was currently a member of
Millwrights Local 1827, and had been for approximately 5
months.'
When Harold Brown reported for work, in August 1969,
he was assigned to work on what is described as a turbine
deck. The mechanical superintendent, in charge of mechani-
cal millwright work, was Zeke Cashman. Commencing on
April 1 or May 1, 1970, he was succeeded by Walter H. (Jack)
Sharp. The general foreman, on the turbine deck, was Ed
Woods.' Brown worked under different foremen, who were
under Woods, on what he described as the number one unit
on the turbine deck, until December 15, 1969, when he volun-
tarily left work.
Brown described the turbine deck as 70 to 80 feet wide and
160 to 180 feet long. It was 40 feet off the ground. There were
two units, on the turbine deck, each comprised of a turbine,
a generator, and a high and low pressure unit. It would
appear each unit had a different foreman. Brown described
the millwrights' work as machine erection.
Events Preceding June 8, 1970
Brown was again referred to the South Point job, on March
23, 1970, and assigned to the crew of Foreman Wayne Mor-
gan, on the day shift, on the turbine deck. A week or two
later, Morgan left and was replaced by John F. Sabin, as
foreman. Sabin had been working in the toolroom, on a lathe,
as a millwright. Sabin continued as foreman of the crew in
which Brown worked until the discharge of Brown, on June
8. Brown had formerly worked at the same worksite as Sabin,
at Titanium, in 1968.
Brown identified the other millwrights working in the crew
with him, in the period from March 23 until June 8, as Jim
Eaton, Ralph Axtell, Andrew Brown, Gary Trail, Bob Stan-
dard, and J. P. Bolles. In addition, James G. Smith was
working as an apprentice. Smith was initially employed on
March 3, 1970. The union steward, on the day shift, was
Fount J. Weber.
Brown credibly related that, approximately a week after
Sabin became foreman, on Saturday, April 11, Eaton men-
tioned that Sabin was working on the lathe in the toolroom,
which he was not supposed to do because he was foreman.
Brown asserted he went to check out some tools and observed
Sabin working on the lathe. Brown related that he advised
Eaton to call the matter to the attention of the union steward.
Brown related there was a toolroom man who checked out
tools for the millwrights. However, Sabin would go into the
toolroom and check out tools to millwrights, including
Brown, and this was a daily occurrence. Sabin would also
carry tools out to his crew, including Brown. The millwrights
were working in a group of three or four. Brown discussed
Sabin's conduct with others on the crew, whom he identified
as Andrew Brown, Jim Smith, and Ralph Axtell. These dis-
cussions were on approximately April 15. Brown asserted
that he and Andrew Brown mentioned this conduct to Stew-
' John F. Sabin, foreman, related that Local 1827 is a millwright local in
Las Vegas, and that it had recently received its charter.
Sabin has been a millwright for 40 years and was a member of Local 1780
from 1961 until the organization of Local 1827.
Sabin did net state if he had been a foreman at any time prior to April
1970.
' Emory Dale was described by Sharp as the general foreman on the
auxiliary equipment. It is unclear if this was at ground level or on the turbine
deck.
BECHTEL CORP.
and Weber. Brown advised Weber that Sabin had been work-
ing with the tools at different times, checking out tools from
the toolroom on different occasions, and occasionally when
Brown was working with the apprentice, Smith, Sabin would
dispatch Brown to a different job and the apprentice would
be working alone. Brown related his reason for complaining
to the steward was that the collective-bargaining agreement
provides that the employees would process a grievance
through the steward. Brown related that the apprentice had
complained to several of the journeymen that he was being
worked alone at different times, and that he (Brown) and
other journeymen complained to the steward, who advised he
would take care of it. Smith corroborated Brown.
Brown related that Weber was on the turbine deck daily
and, about April 20, Brown inquired what action Weber had
taken. Weber responded that he had warned Sabin relative to
the violations. Weber inquired if Sabin was continuing to
work with the tools and Brown advised Weber that he had
been. Weber advised Brown that he would warn Sabin again,
but observed that it was difficult because Weber had not
witnessed the violation.
Brown asserted his crew worked on Saturday, April 25,
and was assigned to working on some large bolts on the
high-pressure unit. On this occasion, Weber was working
with them, and Jim Smith, the apprentice, was also present.
Brown related that Sabin came in, picked up the high-pres-
sure hose, and started blowing out the holes of the high-
pressure unit. Brown asserted there were eight men on the
crew besides the foreman. Brown related that he and Weber
were within 10 feet. Brown called Weber's attention to We-
ber's previous statement that he had to see Sabin working,
and that Sabin was working at that time. Weber responded
that Brown should go up and take the hose out of Sabin's
hand. Brown responded that he did not think he was pro-
tected, if he went up and took something out of the foreman's
hand. Brown suggested it was up to the steward to talk to
Sabin. Weber ignored the matter, and left the site, being
called away relative to a complaint downstairs, about an hour
later.'
When Weber advised Brown to take the airhose out of
Sabin's hand, Brown advised Weber that Brown thought the
steward and the foreman should define what is a jour-
neyman's work. According to Brown, Weber responded,
"Don't bring your damn troubles to me."'
I do not credit the explanation of Sabin relative to this incident. Sabin
related they were getting ready to install horizontal jig bolts. Brown was
cleaning threads on bolts within 10 or 12 feet, and Weber was also present.
Sabin asserted he instructed apprentice Smith to take the airhose and blow
the holes out to remove any dirt from the threads. According to Sabin, when
Smith merely stood and looked at him, Sabin picked up the airhose to
demonstrate to Smith what he wanted Smith to do. Sabin asserted that
Brown took the airhose out of his hand, advising Sabin, "That is no way to
work," and Brown then blew the holes out. Sabin then could not recall if
Smith took the hose and finished the assignment.
Sabin acknowledged being aware of an argument between Brown and
Weber at the time of this incident, but denied being aware of the nature of
the argument. Sabin acknowledged that it was "possible" that Weber had
advised him, at that time that Brown wanted Weber to file charges against
Sabin, as a result of this incident; however, Sabin indicated he had no clear
memory on this point. Sabin then acknowledged Weber later informed him
that Brown had pointed out to Weber that Sabin was working with the tools.
Sabin asserted he advised Weber that he was instructing Smith on what he
wanted done.
I find it unnecessary to make any finding relative to Sabin's assertion that
he gave no thought to whether Brown's taking the airhose out of his hand
constituted insubordination.
I find Sabin's recitation incomprehensible and incredible.
' Weber was not called as a witness . Brown's recitation stands undisputed
and is credited.
1015
Later the same day, April 25, Brown discussed this inci-
dent with Andrew Brown, Fritz House, J. P. Bolles, Ralph
Axtell, and James T. Smith. The group decided that a charge
should be filed with the Union against Weber for "Permitting
foremen to work at different times" when there was an eight-
man crew, and for advising Brown, "Don't bring your damn
troubles to me." Such a charge , signed by Brown, with the
others signing as witnesses was filed on April 27 with the
recording secretary of the Union, Reed Jepsen.10
Sabin asserted that he reprimanded Brown for talking and
dragging his feet, and that he reprimanded apprentice James
J. Smith for the same reason, at the same time." It appears
undisputed that it was the only time Brown was reprimanded,
prior to his discharge."
Brown asserted that between April 25 and June 8 he ob-
served, and discussed with other members of the crew, similar
continued violations of the work rules provided in the collec-
tive-bargaining agreement, by Sabin. Brown related that, on
approximately May 5, Fritz House, a member of Brown's
crew, was appointed steward on the turbine deck. Brown
further related that, since this made two stewards on the job,
House was removed 2 weeks later. Brown credibly related
that each day Sabin would check in and check out tools, carry
tools to the journeymen, and occasionally work the appren-
tice alone from 2 to 4 hours. Brown identified James Smith,
Andrew Brown, and Ralph Axtell, who were working with
Brown, as among those observing these violations. On May
5 they complained to House. House, in turn, advised these
employees that he had talked to Sabin and warned him.
House also asserted if he had to warn Sabin a second time he
would prefer charges, as a steward." The violations con-
tinued. House wrote up a set of charges and showed them to
the other crew members including Brown, Smith, Andrew
Brown, Axtell, Hughes, and Bolles. On May 13, House was
removed as steward, as the result of a decision by Phil Henry,
project manager, and Joe M. Cordova, union business repre-
10 Brown credibly related that both he and Weber, as a result of the filing
of the charge, were advised by the recording secretary to appear before the
executive board, when it met, on May 1. At that time, Weber was given a
copy of the charges.
Subsequently , on June 16 , a trial was conducted . Brown related that Sabin
as well as he and Weber appeared as a witness. Sabin appeared on behalf of
Weber.
The trial committee's recommendation was announced by the trial com-
mittee chairman on the first Friday meeting after June 16.
The trial committee chairman recommended that Weber be fined $49.99
on the first charge, that he be put on probation for 2 years on the second
charge, and if he was called in for any other violation there be an automatic
fine of $49.99 on the second charge. The membership voted, by a vote of
36-33, to uphold the trial committee's decision.
" However, each reprimand was given separately . Sabin acknowledged
this incident might have been in April. Brown placed it as being approxi-
mately 6 weeks prior to his discharge . Smith also asserted it was in April.
" Smith related that the incident arose from his complaint to the steward,
Fount Weber, that the pipefitters were doing work the millwrights were
supposed to do. Smith asserted he had called this to the attention of Weber
2 weeks previously ; meanwhile the work had remained undone . When Smith
renewed his complaint Weber advised that Weber had not had time to check
into it . Shortly thereafter Foreman Sabin advised him to move some 75 to
100 railroad ties from one location to another , on the turbine deck. The
following morning , Sabin advised Smith to move the railroad ties back to
where they had been.,rSmith asserted the result was considerable laughter
by Harold Brown and Andrew Brown, as well as Smith . The reprimand
followed.
Sabin, in his recitation , did not dispute Smith.
" House was not called as a witness . This testimony is undisputed and
is credited.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative. House advised the others that he had withdrawn
the charges."
Brown related that he was working on a high -pressure unit
on May 15, between 12:30 and 2:30 p.m. Brown observed that
Sabin had Smith, the apprentice, working alone. According
to Brown, Andrew Brown also observed this fact. Brown
related that Smith was working with Sabin setting up indica-
tors, working on a high -pressure unit , and did not have a
journeyman, except the foreman. There were eight members
of the crew working on that day.
Brown related that on May 15 after work, he discussed
Sabin's conduct with Andrew Brown, Smith, Axtell, House,
and Bob Hughes. Brown related that he had been unable to
obtain any action by checking with the steward. Brown then
prepared a set of charges which recited that, at the time
specified , Sabin:
(1) As millwright foreman, he continues to work with
the tools, while carrying an eight (8) man crew , in viola-
tion of the Carpenters Labor Agreement, Appendix "B"
page 61, Rule "C".
(2) Working an apprentice alone, with no journeyman
present. This is in violation of the Millwright Apprentice
regulations."
Smith corroborated the reciation of Brown relative to these
events.
Events of June 8, 1970
There is substantial dispute relative to the events of June
8, in the reciation of Brown and Smith on the one hand, and
the Respondent's witnesses on the other. I find Brown and
Smith credible for reasons explicated infra.
Brown related that when he reported at 7 a.m. Sabin as-
signed him a job of leveling and checking out sole plates,
behind a cement finisher who was dry-packing beneath the
sole plates. 16 Brown's job was to see that the insertion of the
concrete, or grouting, did not modify the level of the plate.
About 9:30 or 10 a.m., Brown had a conversation with
Sabin while making an adjustment on one plate. Sabin picked
up a wrench, adjusted one end, and left. Brown related Sa-
" It is obscure whether the charges were ever actually filed.
There is no evidence that these charges were, in fact, served on Sabin
prior to the discharge of Brown on June 8.
Brown related that the charges were read to a meeting of the members
of the Local on June 19. They then lay over until the following meeting.
Sabin credibly related that he received a notice of the charges by mail on
July 29. Sabin explained they had been delivered to the home of his son the
prior day, and the hearing was set for 7:30 p.m. on July 29. Sabin related
that he appeared and called attention to the fact that the notice was not in
compliance with the by-laws and constitution , and the trial was aborted.
When Sabin returned from a vacation, which he had taken between Au-
gust 15 and September 1, he learned that a hearing had been held in his
absence, and that he had been fined $250 on each count. The International
later vacated the action of the Local.
We are not herein concerned with the question of the validity of the
charges.
16 Brown described a sole plate as one of several plates on which a
generator is placed. It is inferred the purpose is to assure the generator, when
in operation , is level.
An area, inferentially of concrete, is jackhammered out to receive the sole
plate . Each sole plate has four, six, or eight jack screws. The plate is leveled
by raising or lowering nuts. It is made level by the use of a level, at a precise
elevation point. All sole plates have the same elevation. The work is done
by journeymen millwrights.
After the sole plate is set, a grouting is placed under it, to serve as a
foundation. The grouting is a quick-setting concrete. The level of the sole
plate is then rechecked by a millwright.
Brown asserted that during a period of 12 years he had set sole plates,
including the period when he was employed at the Mojave Generating
Station in 1969.
bin's action did not require more than 30 seconds. Brown
continued setting the sole plates until lunch hour , at 11:30
a.m. Brown returned the level to the toolcrib, explaining that,
if the sun hits it, it will break the bubble.
At 12 o'clock, at the end of the lunch period, Sabin advised
Brown to resume leveling the sole plates . Smith , the appren-
tice , was present and Sabin checked out a "peanut grinder"
to Smith and a 12-inch stare and a 98 level to Brown. Brown
related that he then advised Sabin , "I'm not threatening you,
but I would like to inform you that there is a set of charges
being processed in our local union on you , and each day that
you commit these violations you are open for a new set of
charges." Brown then inquired if Sabin was familiar with the
bylaws and trade rules , and received an affirmative response.
Brown asserted that Sabin inquire as to who was behind all
this , and if it was Brown . Brown responded that he was not
saying, that when Sabin went before the executive board, or
the trial committee , they would advise him as to who was
behind it. According to Brown, Sabin then stated, "Well, we
will see about this." Smith corroborated this recitation of
Brown.
Brown denied that he had ever directly confronted Sabin,
previously , with an accusation that Sabin was violating the
collective-bargaining agreement , or the applicable trade
rules.
Brown related that, about 20 minutes later , Brown had
stepped back from a sole plate to permit the laborer to blow
out loose gravel with an airhose, prior to the laborer ram-
packing under the sole plate. According to Brown, Sabin
inquired what Brown was doing and Brown explained that he
had stepped back to avoid getting gravel in his eyes. Brown
asserted nothing else was said.
Brown related that at 1 : 30 p.m . Sabin came up and handed
him his check with a termination slip advising Brown, "Here
is your check, you're fired. Get your tools. The ironworker
will set your tools downstairs.""
The notice of termination contained a notation that Brown
was not eligible for rehire. Item 22, checked as the reason for
the discharge, reads: "Refuses to work as directed." The
notice of termination was signed by Sharp, but initialed by
Sabin.
Brown walked over to General Foreman Ed Woods, who
had been standing some 15 feet away. Brown related he said,
"Ed, as long as you have been general foreman here and been
around on this turbine back here, have you ever seen me
refuse to take an order as directed or work as directed?"
Borwn related that Woods responded, "No, I haven't, Har-
old. This is between you and John Sabin."" Brown asserted
that, in his conversation with Woods, he had advised Woods
that he had informed Sabin that there were a set of charges
being processed on Sabin, and Brown advised Woods that
Brown felt this was the reason he was being terminated, as
he had not refused to take any orders or to work as directed.
Brown, before leaving, advised Steward Weber of his dis-
charge.19
" It appears that the tools were placed in a skiff and swung down to the
ground level by lift.
18 Woods did not appear as a witness. Respondent made no explanation
of its failure to call Woods. I credit Brown's recitation of his conversation
with Woods at the time of his discharge.
1' Sabin's recitation of the events of June 8 are both inconsistent and
self-contradictory. These recitations are next considered.
Initially, Sabin asserted that on June 8 Brown advised him, "I am filing
four different charges against you," and this was all Brown said. Sabin
asserted he responded, "Fine," and walked away. Sabin related he then
walked over to General Foreman Ed Woods and advised Woods that either
Brown was leaving or Sabin was leaving. Woods advised Sabin, "You hang
on for a bit."
BECHTEL CORP. 1017
The recitation of Respondent's witnesses relative to the
events immediately preceding the termination of Brown are
likewise conflicting and contradictory. These conflicts are
next considered.
Sabin asserted that on more than one occasion previously,
he had advised General Foreman Woods that he was having
difficulty with Brown, that Brown was continuing in the same
pattern as far as talking and dragging his feet. He requested
Woods' permission to terminate Brown, which Woods
refused. According to Sabin, Woods advised that Woods had
talked to Sharp, who advised they would not lay Brown off.
Sabin asserted the additional reason that he was requesting
the discharge of Brown was "the constant repetition of
threats to prefer charges against me in the hall, I constantly
kept hearing this and I was getting tired of it."
Sabin asserted that, immediately after the leveling incident,
inferentially between 9 and 9:30 a.m., he went to Woods'
office. Woods appeared about a half hour later. Sabin asserted
that he advised Woods, "that I was tired of being harassed
by Mr. Brown, by him saying he is preferring charges against
me and threatening me in that manner." Sabin asserted that
this was something that would im air his ability and he ad-
vised Woods "if I couldn't lay him Brown] off, then I wanted
my time." Woods advised him to just "hang on" that Woods
was going to the office. Sabin asserted that a half or three-
quarters of an hour later Woods came back, "and told me
they were discharging Mr. Brown ... or I should go down
and see Jack [Sharp], and tell him my story."2d
Sabin asserted he then proceeded to Sharp's office, ex-
plained to Sharp what had happened and also Sabin's "senti-
A,.,;oraing to Sabin, Woods then went to see Sharp while Sabin "stayed on
the turbine deck." When Woods returned, he advised Sabin "terminate the
man." Asked if the reason for the discharge was Brown's assertion that he
was going to prefer charges against Sabin, Sabin responded this had occurred
numerous times before that. Sabin then related, "this harassment and con-
stantly digging me with the same phrase , ' I am preferring charges against
you for this and this' had occurred many times before, and I was getting
rather tired of it . And that was the reason I wanted him terminated."
Asked about the frequency of these threats of preferring charges by
Brown, Sabin asserted they would occur once or twice a week , commencing
after he had reprimanded Brown in mid -April. Sabin asserted that Brown
was not specific as to the nature of the charges Brown was undertaking.
Sabin then asserted, "But it was more or less scuttlebutt , you might say, or
hearsay around the deck the reasons for it and so on, that I'm working with
my tools. And this apprentice bit I never heard until such time as I received
a notice with that, on the notice in the mail." Sabin then described the
"scuttlebutt" as the fact that he was working with his tools.
Sabin gave an incoherent and inconsistent recitation to support his asser-
tion that Brown's attitude changed after Sabin reprimanded Brown in mid-
April. Sabin asserted that prior to that time after making his work assign-
ment he and Brown would get engaged in a conversation not particularly
related to the job, while after the reprimand , Brown would sometimes an-
swer him and sometimes merely turn around and walk away. Asked if he
had any conversation with Brown, after the reprimand , "No, not to my
knowledge." When Respondent's counsel persisted Sabin asserted that
Brown would merely state, at different times, "Well, I am preferring charges
against you." He described this as happening quite frequently. Asked to
estimate the frequency, Sabin asserted, "Truthfully, I can't pin it down,
because I don't remember." Sabin then described his method of learning
about Brown's complaints to others, relative to filing charges with the
Union, as, "It was general conversation on the deck amongst the men, who
would raise it here and there and so on amongst themselves, and it would,
naturally, get into the office where we would hear about it." Asked to relate
what he heard, Sabin responded that Brown was preferring charges against
him for working with his tools. While it is entirely probable that Sabin heard
of Brown's conversations with the other crew members, indirectly as scutt-
lebutt, I do not credit his assertion that Brown had ever confronted him,
prior to June 8, relative to the filing of charges.
I have found, supra, that it was at noon that Brown advised Sabin of the
filing of charges. Sabin's recitation of the time of these events is self-contra-
dictory. Sabin asserted that when he first assigned work that morning he had
assigned Brown "some job over on the north end of the deck." Sabin as-
ments." Sabin asserted that Sharp advised they would not lay
Brown off but would fire him. Asked what Sharp said, about
Sabin's reasons for wanting to discharge Brown, Sabin re-
sponded that Sharp told him that he was certain that Brown
knew how to set sole plates, therefore, upon Sabin instructing
Brown to set sole plates, which Brown was capable of doing,
that Brown had refused to work as directed by not setting the
sole plate. Sabin related that it was Sharp who decided that
Brown was not eligible for rehire.
Sharp, mechanical superintendent, whom I do not credit,
related that between 9 and 9:30 a.m. on June 8, Woods ad-
vised that he had a problem and wanted to talk to Sharp.
Woods advised Sharp that Sabin had told Woods that Brown
had been directed to do certain work and had come back for
instructions, and requested Sabin to "show him how to do it."
Woods reported that Sabin thought that Brown was "baiting
him for a trap," so Brown could prefer charges against Sabin.
Sharp asserted he did not go into any details with Woods.
Sharp asserted that, a half hour later, Sabin advised that
Brown had been assigned work of setting sole plates, and 30
minutes or an hour later wanted instructions on how to level
sole plates. Sharp asserted that he advised Sabin that Brown
knew they had paid Brown backpay for setting sole plates,
and consequently Sharp knew how to set sole plates. Sharp
acknowledged he was not on the South Point job at the prior
time." Sharp asserted he advised Sabin that he was going to
terminate Brown as not eligible for rehire for not following
orders as directed. Sharp acknowledged he did not conduct
any investigation, as he does not normally conduct investiga-
serted he "believed" that "previously" Brown had been working with the
grouters on sole plates. Sabin asserted one sole plate right in front of the
office, on the low-pressure unit, had been knocked out of level. He then
asserted that it had not been leveled. He related he went and got Brown to
level that particular sole plate, advising him to go to the toolroom and get
a level. I credit the recitation of Brown that he worked on sole plates all that
morning.
Sabin asserted that it was about 8 o'clock when he assigned Brown this
work. About a half hour or three-quarters of an hour later, Sabin came by
and Brown advised he could not level the sole plate, that it just could not
be leveled. Sabin asserted he observed that the jack screws were not even
contacting the lower cement and "were at least an inch from the concrete"
indicating that no attempt had been made to level it. (General Counsel
observes the sole plate would have been floating.) Sabin asserted that he
instructed Brown which jack screw to turn, until the sole plate became level,
and the work did not require more than 10 minutes. Sabin asserted he did
not touch any of the tools, "because I knew he [Brown] was bugging me with
charges for working with my tools." Sabin asserted that as he stood up, after
the completion of the job, Brown advised him "John, I'm preferring four
charges against you." Sabin asserted he responded "Fine."
A pretrial statement of Sabin was supplied to General Counsel, having
been obtained from Sabin by Wood, and forwarded by Respondent. This
statement recites in part: "The morning I terminated him [Brown], after I
gave him instructions for work that day [instructions were given at 7 a.m.]
he angrily told me he was going to prefure [sic] four different charges against
me. About two hours later I ask [sic] him to level and set a sole plate, I
showed him which one I wanted set and left him. About 30 minutes later
he came to me and said it was impossible to set this sole plate, so I went
back and had him put the level on and instructed him as to which jack screw
to turn and how much in order to level this plate. I could see he was just
baiting me again as he did previously on other occasions to take up the tools
and show him just how it was done so he would have definite grounds to
prefure [sic] charges against me, also knowing that he had previously set sole
plates I felt this was all uncalled for and therefore terminated him."
It is patent that the threat was not made both at 7 a.m. and at 8:45 a.m.
as asserted by Sabin.
30 1 have found, supra, that Sabin initially related that, when Woods
returned, Woods advised Sabin to "terminate the man."
" Sharp was uncertain if he had commenced working at the Mojave
Generating Station on April 1 or May 1, 1970. Sharp gave no explanation
of how or why such a minute detail would come to his attention long after
the prior event.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, prior to a discharge, other than talking to supervisory
personnel."
At the request of General Counsel, Respondent obtained
a pretrial statement from General Foreman Woods, dated
December 9, 1970, relative to the circumstances leading to
the discharge of Brown. Sharp acknowledged reading Woods'
statement prior to its being forwarded to the Board. Woods'
statement , in pertinent part, asserts:
Mr. Harold Brown came to work for the Bechtel Corp.
and was put in John Sabin's crew. He worked satisfac-
torily for about a month and I noticed at various times
Mr. Brown was either visiting or keeping other mill-
wrights from working in addition to visiting and talking
to men of other crafts and this would go on for 15
minutes or so. I mentioned this to John Sabin, my fore-
man, of which he agreed with me and told me he had
also noticed these things. I told John Sabin he better
have a talk with Mr. Brown and straighten him up of
which John did, I also told John if his work was not
satisfactory he would have to terminate Mr. Brown. The
day Mr. Brown was terminated John came to me and
said his work was not satisfactory, I said terminate him.
Events of June 9
Apprentice Smith credibly related that on June 9 he asked
General Foreman Woods what Woods thought about the
discharge of Brown, and whether he thought it was right.
Woods responded that he was not going to comment on it.
Smith then asked Woods if Woods knew that he was responsi-
ble, along with every man on the job, and the steward, to
uphold the working conditions of the contract. Woods re-
sponded that he was well aware of that but didn't think it was
any of Smith' s business . Smith then advised Woods that
Smith thought it was wrong, that something ought to be done
about it, and Smith inquired if Woods would be willing to
sign a set of charges against Sabin . Woods responded "No
apprentice is going to put me on the spot," and walked away.
About 1 or 2 hours later, Steward Weber advised Smith
that Sharp decided to rotate the apprentices, and they were
rotating Smith to the ground crew, while another apprentice
replaced him on the turbine deck. Brown had been working
on the turbine deck since his initial employment on March 3,
1970.23
" However, Sharp related that he had three or four conversations with
Woods, in May or June 1970, relative to the discharge of Brown. According
to Sharp, Woods requested that Brown be given a reduction in force. Woods
explained Sabin had been "approached" on charges being filed against him
in the Local . Sharp asserted he responded that this was no grounds to get
rid of a man , and that as far as union activities were concerned , Sharp did
not want to have any problems with it. Sharp asserted that he had previously
gone to Emery Dale, the other general foreman , who refused to take Brown
because Brown had the habit of making threats of filing charges against
individuals . Sharp then asserted that he described the problem between
Sabin and Brown as a personality thing between the two of them.
The assertion of Sharp that neither Woods nor Sabin ever advised him
prior to June 8 that Brown was visiting or talking or keeping other craftsmen
from working, for extended periods, stands in sharp contrast to the assertion
of Sabin that Brown continued this conduct, after Sabin's reprimand in
mid-April. Sharp acknowledged that he refused to approve the discharge of
Brown, sought by Sabin, prior to June 8.
Sharp also related that when a man is discharged for cause he is allowed
to continue working while his papers are being prepared. I have found,
supra, that Brown continued leveling sole plates while his discharge was
being considered. I also find, infra, from the recitation of Respondent's
witnesses that Brown's work, at a later time, including the leveling of sole
plates, was quite satisfactory , according to these same Respondent wit-
nesses.
" It appears that Smith's employment terminated on July 31, 1970. The
circumstances of the termination are obscure.
Events of July 2, 1970
On June 9, Brown advised Cordova, Local business repre-
sentative, of the circumstances of his discharge. Cordova ad-
vised that he would file a grievance with Bechtel. Thereafter,
a meeting was held at the South Point site on July 2. Bill
Henry, project manager, McCollough, assistant project
manager, Sharp, Woods, and Sabin were present for Re-
spondent. Cordova and Brown were also present.
Cordova advised Henry that the Union was replacing We-
ber, as steward, and appointing Fritz House. Brown related
Cordova advised Henry that Cordova had talked to Sabin;
that Sabin had advised Cordova that the reason stated on the
termination slip for the termination, which was "refuses to
work as directed," was not the real reason that Sabin had
terminated Brown. Sabin was present at the time this state-
ment was made and advised that "Jack Sharp had something
to do with that being put on there." Sharp spoke up and said,
"Well, the way John Sabin explained it to me, it sounded like
the man could have done the work and knew what he was
doing but seemed to kind of hesitate or held back and did not
know exactly what he was doing or something." Cordova
then inquried why they did not specify "not qualified" as the
reason for the termination. Henry advised if that was what
the Union wanted they would change it. Cordova responded
it was a bit late to make a change, that Respondent had
admitted that the reason stated on the termination slip was
not the real reason for the termination. Henry then observed
that he would support his supervisory staff. This terminated
the grievance meeting.24
Events of July 14 to 31, 1970
Brown related that he was dispatched by the Union to the
South Point job on July 14, 1970, and was assigned to the
graveyard shift, which works from 11 p.m. to 7 a.m., on the
crew of Gordon Powers. Brown worked 2 nights, July 14 and
15. When he reported on July 16 and attempted to sign in,
as all employees were required to do, at the gate, he was
advised by Ron Miller, assistant superintendent on the night
shift, that they had a note that said that Harold Brown was
not to go to work. Brown related that he was accompanied
by Al Benedetti, the steward, and John Morgan, inferentially
another millwright. Benedetti advised Brown to remain at the
guard shack, while Benedetti went up to talk to the other
millwrights. Benedetti advised Brown that he was certain that
it was covered by "our agreement" that they cannot lock out
a fellow member. Benedetti advised he.would go up to the
turbine deck and return to let Brown know what happened.
Brown asserted that, while he was waiting, Ron Miller
advised Brown that Miller had observed him for 2 nights, that
Brown had done a real good job, but that he had been advised
not to let Brown go to work and he had no alternative. Brown
responded that he realized that Miller had his orders.
Brown asserted that after approximately 2 hours all of the
millwrights on the graveyard shift, approximately 20 in num-
ber, appeared at the gate and Al Benedetti advised Brown
that they were all going home.
Sharp gave the following explanation about the rehiring of
Brown. Sharp set up what he described as a second shift;
obviously it was a third shift. He asserted they had a new
supervisor, brought in from one of the other jobs, who did not
have access to the termination records, and who hired Brown
by mistake. Sharp asserted that after Brown had been so
" While we are not herein concerned, it appears that the Company
refused to proceed further with the grievance, at a later time , by reason of
the pendency of the charges in the within matter.
Sharp corroborated the recitation of Brown as to the events of July 2.
BECHTEL CORP. 1019
hired, Sharp, Henry , and McCollough discussed what they
should do about it. At that time they decided that if he did
the job this was all they cared about . They decided to leave
him on the payroll; however , Sharp asserted they decided to
take him off the night shift and put him on another shift, and
the foreman was so advised.25
Brown asserted there was a meeting at the union hall the
following day , July 17, Friday , at 1 p .m., and that none of the
millwrights went to work . Brown asserted that Harry Kaiser,
assistant business representative , had a grievance meeting
with unidentified representatives of Respondent , by reason of
the lockout . Brown asserted that on July 20, the Union was
advised , by telegram to Kaiser, that Brown could return to
work, but they were laying off Benedetti . Kaiser called Cor-
dova , union business representative , at the Bechtel jobsite,
and explained the problem . Later Brown was advised that
both he and Benedetti were to return to work, which they did
on July 20 , Monday . Brown continued to work on the grave-
yard shift until July 31 , 1970. Brown asserted four other
journeymen were laid off at the same time.26
Events of August 27 to September 10, 1970
Brown was again referred to the South Point job by the
Union , on August 27, 1970, and worked on the day shift, on
Henry Lawrence 's crew until September 10, 1970. This layoff
slip, as well as that of July 31, indicated a reduction in force
as the reason for the layoff, and that Brown was eligible for
rehire.
Events of May 24, 1971, and Thereafter , Including
Transfer of May 26, 1971
By amendment to the complaint , it is alleged that on May
26, 1971 , Brown was transferred from work for the Combus-
tion Engineers to the turbine deck , for discriminatory rea-
sons . The facts relative to these events are next explicated.
Brown related that he was again referred to the South
Point job , by the Union , on May 24, 1971, and was still
employed at the time of the hearing herein.27
On May 24 , Brown was assigned to the crew of Thomas
McGuire, who was working , at ground level, on centrifuges,
for Combustion Engineers , a subcontractor of Respondent.
However , Brown was on the payroll of Respondent . At that
time Paul Fore was the day -shift steward for the millwrights.
Brown asserted that Fore had appointed Brown as steward
for the period from 5 to 7 a.m., inferentially on May 26.
Brown asserted that , the same day, he was transferred to
" Brown asserted that on July 15, after he had been working approxi-
mately an hour, Gene Meadows, the general foreman , advised Brown that
Meadows had talked to Ron Miller . Meadows advised Brown they had
orders to transfer Brown. Meadows assured Brown there was nothing per-
sonal against Brown, as far as Meadows was concerned . The same night, Al
Benedetti, the Steward , also advised Brown that they were discussing trans-
ferring Brown . Brown related that, at the end of his shift, he asked the
foreman, if he was to be transferred . Powers responded that no one had so
informed him and Brown was to come in at his regular shift at 11 p.m. the
following night.
Miller, Meadows, Powers, and Benedetti did not appear as witnesses. I
find it unnecessary to resolve this conflict.
1' Sharp corroborated Brown's recitation relative to 20 millwrights walk-
ing off the job, and also relative to the layoff of July 31.
Sharp acknowledged there was never any complaint , after Brown's return,
relative to his work . Sharp asserted that Brown did a good job, including the
setting of sole plates.
1' Brown explained that Gordon Powers had been appointed financial
secretary and business representative , of Local 1827. During Powers' vaca-
tion, of 2 weeks , Brown was appointed as his replacement , and had obtained
a leave of absence from Respondent . This period terminated simultaneously
with the commencement of the hearing herein.
Sabin 's crew on the turbine deck . Brown continued working
under Sabin for approximately 10 days and was then trans-
ferred back to the work of Combustion Engineers.
Sharp related that at the time Brown was hired on May 24,
Sharp had also requested millwrights to work on the turbine
deck . One of the employees referred by the Union, was an
individual identified as Jewell . Sharp asserted that he had
some linkage work on the turbine deck , which required
climbing . Jewell was incapable, by reason of a prior injury,
to do this particular type of work . Sharp related that Gene
Meadows , the general foreman, approached him about not
working Jewell , because of the possibility of injury. Sharp
related that he contacted Emery Dale, the general foreman on
the Combustion Engineering work , and inquired if he could
make use of Jewell , in connection with welding work, which
required no climbing . Sharp then had to make a decision as
to whom to transfer to the turbine deck , to do the particular
work required . Sharp asserted they had very few millwrights
who had been doing any turbine work on the auxiliary equip-
ment . Sharp then designated Brown for transfer "because he
was as capable as any man we had." Sharp related that Brown
did a good job.
Sabin related that he left Respondent 's employment on
July 9 , 1971. Sabin acknowledged that Brown had been trans-
ferred to his crew, in the period of May 26 to June 4, 1971.
Sabin described Brown's work as excellent , during this latter
period of employment . In fact, Sabin asserted that Gene
Meadows , the general foreman , requested that Sabin select
one individual as a foreman for a start -up crew . Sabin related
that he advised Brown that he was making him a working
foreman , and Brown accepted the assignment . Brown related
that he was a working foreman for a period of 3 or 4 days.2'
Brown related that he was advised by Paul Fore , prior to
his transfer on May 26, that Sharp had stated that Sharp
would fire any man who wore the steward 's badge, and that
it was for this reason that Brown was transferred to the
turbine deck . Brown then asserted that at the time of the
transfer they had discontinuted the overtime . 29 Brown was
unable to explain the relationship between his activity as
steward and the transfer . The turbine deck work was during
daytime hours.
Sharp asserted that at that particular time there were three
shifts being worked by the millwrights , from 7 a.m. until 3:30
p.m., from 3 : 30 p.m . until 11 p . m., and from 11 p.m. until 7
a.m. He asserted there was a millwright steward on each shift,
and the steward on the third shift was an individual named
Freeman . Sharp asserted that Respondent does not recognize
more than one steward on any shift, and that it is not custom-
ary to have two stewards on the job simultaneously , for mill-
wright craftsmen . Sharp acknowledged advising Paul Fore,
the day -shift steward , that Brown was not acting as a stew-
ard, and was not doing the job of a steward at that time,
whether he wore the button or not . Sharp also advised Fore
that Brown was not to engage in any steward activities, that
if he did so he would be terminated for cause. Sharp 's reason
was that the Respondent would recognize only one steward
on each shift.
On this conflict, to the extent Brown's testimony is at
variance with that of Sharp, I credit Sharp . Finding no evi-
dence which would support a finding that the transfer of
" Sabin asserted he had a conversation with Brown, when Brown first
arrived on the deck, during which Brown extended his hand, with a smile,
and stated that he was sorry for what happened , that he had been influenced
and talked to by the wrong people . Brown denied that any such conversation
took place . I find it unnecessary to resolve this conflict.
11 Brown had related that he received overtime for the work hours from
5 to 7 a . m., which would precede normal daytime hours.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown, on May 26, was discriminatorily motivated, I will
recommend a dismissal of the amendment to the complaint,
contained in paragraph 5(b).
CONCLUDING FINDINGS
The single question requiring resolution is that of the moti-
vation underlying the, discharge of Brown. I have found,
supra,'that Sabin left no doubt that his motivation was the
recitation, of Brown, relative to the previous filing of charges
with the Union, by reason of Sabin's, working with the tools,
contrary to the collective-bargaining agreement, and' the
union work rules incorporated therein. Respondent, in its
brief, acknowledges that Sabin, on June 8, advised Woods
that Sabin could no longer tolerate Brown's threats, and, if
Woods did not lay Brown off, Sabin would quit. Even were
I to find substance to the testimony of Sabin, relative to the
failure of Brown to follow his orders in regard to adjusting
a sole plate, the reason for the discharge would involve a
mixed motive, and would lie violative of the provisions of
Section 8(a)(3) and (1) of the Act. N.L.R.B. v. Jamestown
Sterling Corp., 211 F.2d 725 (C.A. 2).
The recitation of Sharp permits no doubt of the fact that
on several prior occasions Woods, at the behest of Sabin, had
sought the layoff of Brown, solely by reason of the scuttlebutt
Sabin had heard of the threats- Brown was making to bring
charges against Sabin. The Board has held, with court ap-
proval, that the existence of some justifiable ground for dis-
charge or layoff is no defense if it was not the "moving cause."
'Wells, Inc. v. N.L.R.B., 162 F.2d 457, 460 (C.A. 9),30
In its brief, Respondent seeks to evaluate the accuracy of
Brown's testimony, in terms of its rejection by the Interna-
tional, relative to the charges against Sabin. We are not herein
concerned with a determination of whether Brown's charges
were meritorius.31 We are solely concerned with the question
of whether the threat, enunciated by Brown, was, in fact, a
motivating cause of the conduct of Respondent, resulting in
Brown's discharge.
Similarly, Respondent urges, in its brief, that Respondent
granted Brown a leave of absence, to, permit him to pursue
his union activity, obviously referring to the events of August
1971. It also advances the fact that Brown was made a work-
ing foreman in May 1971. These facts demonstrate, if any-
thing, that Brown was not the poor workman, incapable of
performing the duties assigned to him, which Sabin and
Sharp sought to portray. In fact, Sabin sought to establish
that Brown's weakness was laughing and dragging his feet, or
visiting,, on the job. This fact never came to the attention of
Sharp, and certainly was not a motivation for the discharge,
as Woods sought to establish in his statement,
Respondent 'would urge that the record does not demon-
strate that Respondent had any knowledge, prior to the dis-
charge of Brown, of the filing of the charge by Brown, against
Weber, or in fact, against Sabin. However, I have found that,
on June 8, Brown advised Sabin, "I'm not threatening you,
but I would like to inform you that there is a set of charges
being processed' in our local union on you, and each day that
you commit these violations you are open for a new set of
charges." Obviously, Sabin did not know the precise content
30 In so finding, I am not unmindful of the fact that neither Sharp nor
Woods made any effort to verify Sabin 's alleged recitation, about the defici-
encies of Brown, on June 8.
Neither am I unmindful that Sabin's first recitation was that his sole
complaint, to Woods, related to Brown's threat, not his deficiency When
Woods returned, from his visit to Sharp's office, Woods advised Sabin to
terminate Brown
31 Interboro Contractors, Inc., 157 NLRB 1295, 1298, In 7, enfd 432
F 2d 854 (CA. 2)
of the charges. We are not, herein, engaged in an exercise in
semantics.
Sabin's recitation, standing alone demonstrates his knowl-
edge of the fact that Brown was discussing Sabin 's propensity
for working with the tools of the trade with other members
of the crew. Sabin related that this "scuttlebutt," as he termed
it, came back into his office on a number of occasions. Sharp
acknowledged that Woods advised him, on several occasions,
that Sabin was desirous of obtaining a layoff of Brown, for
this particular reason. Similarly,. Respondent's effort to urge
that there is no evidence that Brown'''s discharge discouraged
unionism is without merit.
There is one fact, which is undisputed, which must not be
lost sight of, in the welter of testimony herein. Sabin acknowl-
edged he was incensed by Brown's confrontation relative to
the filing of charges, to a degree which caused him to present
Woods with a "take it or leave it" decision. That was, either
Brown would be discharged or Sabin' wanted his time. This
was the posture in which Respondent made its decision to
discharge Brown.
Finally, Respondent contends Brown's activity was not
protected activity. Respondent would distinguish between
the actual filing of a charge, and a, threat to file a charge. I
find no substance, or merit, to, this contention. It would be
ludicrous to hold that, because a discharge is summarily effec-
tuated before charges are served, the protections of Section 7
rights are inapplicable."
General Counsel accurately urges, ' in his brief, that the
filing of intraunion charges against fellow union members,
under a union's constitution, is a statutory right protected
under Section 7 of the Act. Isis Plumbing & Heating Co., 138
NLRB 716, 730. Similarly, an attempt by an employee to
enforce his understanding of the terms ofa collective-bargain-
ing agreement is an activity protected by Section 7 of the Act.
The Board has found the employees' insistence on full per-
formance of a collective-bargaining agreement and invoking
the 'assistance of the Union in connection with alleged viola-
tions constituted protected activity. Interboro Contractors,
Inc., supra, at 1298.'3
The fact that it was Sharp, not Sabin or Woods, who was
vested with authority to effectuate the discharge of Brown, is
of no consequence. If the supervisor, upon whose report the
action was taken, was discriminatorily motivated in making
the report, there is no question, but that the report was the
cause of the discharge. Allegheny Pepsi-Cola Bottling Co. v.
N.L.R.B., 312 F.2d 529, 531 (C.A. 3), enfg. 134 NLRB 38.11
It is well established that a discharge may be found to be
discriminatory "regardless of whether or not there are other
valid ground upon which a discharge might be based." Bran-
thaven, Inc., 192 NLRB No. 159.
Accordingly, on the basis of the credible evidence I have
found, and the entire record as a whole, I am constrained to
find that the asserted reasons for the discharge of Harold L.
Brown, on June 8, 1970, were pretextuous, and the real rea-
son and moving cause was the protected, concerted activities
of Brown in seeking compliance with his understanding of the
provisions of the collective-bargaining agreement, and said
33 Cf Hoover Design Corporation, 167 NLRB 461, in which the Board
found a discharge resulting from a threat to file an unfair labor practice
charge violative of Section 8(a)(4) and (1) of the Act. Accord ' Hydraflo
Valve & Manufacturing Co, 158 NLRB 730, in which the Board found
conduct identical to that in Hoover was also violative of Section 8(a)(3) of
the Act
33 Accord H C Smith Construction Co., 174 NLRB No 180, Procon,
Inc, 161 NLRB 1304, 1307; Bunney Bros Construction Co., 139 NLRB
1516, 1519
34 Accord NL.R.B V Montgomery Ward & Co., 242 F.2d 497, 501
(C.A 2), enfg 115 NLRB 645
BECHTEL CORP 1021
discharge constituted discrimination to discourage member-
ship in the Union, and was violative of the provisions of
Section 8(a)(3) and (1) of the Act.
However , I have found , contrary to the allegations of the
complaint , that Brown was reemployed by Respondent, dur-
ing varying intervals in July , August , and September 1970
and at the time of hearing had been continuously so employed
since May 24 , 1971. The customay order will be modified
accordingly.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of the
Respondent described in section 1, above , have a close, inti-
mate , and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged, and is
engaging , in certain unfair labor practices , I shall recommend
that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent discriminatorily dis-
charged Harold L. Brown, on June 8, 1970 , and thereafter
failed and refused to recall and reinstate him. However, I
have found that Brown was reemployed on July 14, was
refused an opportunity to report to work on July 16, returned
to work on July 20 , and was laid off on July 31, 1970. I have
also found that Brown was again employed from August 27
until September 10, 1970. Thereafter , on May 24 , 1971, it
appears that Brown was restored to a job equivalent to the job
he worked at on June 8, 1970 , at the time of his discharge,
and that his employment thereafter was continuous . Accord-
ingly, I will recommend that Respondent make Brown whole
for any loss of pay he may have suffered from June 8, 1970,
until May 24, 1971, without prejudice to Respondent's right,
in a supplementary proceeding, to establish , if it can, that
absent the discharge of Brown on June 8, 1970 , he would have
been laid off during any period prior to May 24, 1971. Said
loss of pay shall be based on the earnings Brown would have
earned from the date of his discharge until the indicated date
of reemployment, less net earnings during said period. Said
backpay shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289. Interest on backpay shall be computed in the
manner set forth in Isis Plumbing & Heating Co., supra.
It is also recommended that Respondent be ordered to
make available to the Board , upon request, payroll and other
records to facilitate checking of the amount of earnings due.
In view of the nature of the unfair labor practices committed,
the commission of similar and other unfair labor practices
reasonably may be anticipated . I shall , therefore , recommend
that Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed its employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
activities affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1780, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of
employment, and terms and conditions of employment, of
Harold L . Brown , thereby discouraging the free exercise of
rights guaranteed by Section 7 of the Act, and discouraging
membership in the Union , and by engaging in conduct con-
stituting interference , restraint , and coercion , Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law, upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER 35
Bechtel Corporation , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1780,
or discouraging the free exercise of rights guaranteed by Sec-
tion 7 of the Act , by discriminating against any employee in
regard to his hire or tenure of employment , or any term or
condition of employment.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist the
above-named Union, or any other labor organization , to bar-
gain collectively through representatives of their own choos-
ing, and to engage in any other concerted activity for the
purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any and all such activities , except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a)(3) of the Act,
as modified by the Labor Management Reporting and Disclo-
sure Act of 1959.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Make Harold L . Brown whole for any loss of pay he
may have suffered by reason of Respondent 's discrimination
against him in accordance with the recommendation set forth
in the Remedy herein.
(b) Preserve and make available to the Board , or its agents,
upon request , for inspection and reproduction, all payroll
records, social security reports , timecards , personnel files,
and all other records necessary to analyze, compute, and
determine the amount of backpay to which Harold L. Brown
may be entitled under the terms of this Trial Examiner's
Decision.
(c) Post at its place of business in South Point , Nevada,
copies of the attached notice marked "Appendix."36 Copies of
said notice, to be furnished by the Regional Director for
Region 31 , after being signed by Respondent 's representative,
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and Recommended Order herein,
shall, as provided in Section 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.
" In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be posted by the Respondent and maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing each of Respondent's bulletin boards. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of the receipt of this Trial
Examiner's Decision, what steps it has taken to comply there-
with.
It is further recommended that unless Respondent shall
within 20 days from the date of the receipt of this Trial
Examiner's Decision notify said Regional Director, in writ-
ing, it will comply with the foregoing Recommended Order"
the National Labor Relations Board issue an order requiring
that Respondent take the action aforesaid.
It is further ordered that the allegations of paragraph 5(b)
of the complain be, and they are hereby, dismissed.
hire or tenure of employment , or any term or condition
of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce , our employees in the exercise of the
right to self-organization , to form a labor organization,
to join or assist the above -named Union , or any other
labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in any
other concerted activity for the purpose of collective
bargaining or other mutual aid or protection , or to re-
frain from any and all such activities , except to the ex-
tent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a)(3) of
the Act , as modified by the Labor Management Report-
ing and Disclosure Act of 1959.
WE WILL make Harold L. Brown whole for any loss
of pay he may have suffered as a result of our discrimina-
tion against him.
" In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 20 days from the date of this Order what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in United
Brotherhood of Carpenters and Joiners of America, Lo-
cal Union No. 1780, or discourage the free exercise of
rights guaranteed our employees by Section 7 of the Act,
by discriminating against any employee in regard to his
BECHTEL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024, Tele-
phone 224-3861.