Bovee and Crail Construction Co.

National Labor Relations Board - Board Decisions

Jun 9, 1976

224 N.L.R.B. 509 (N.L.R.B. 1976)

BOVEE AND CRAIL CONSTRUCTION COMPANY
Bovee and Crail Construction Company and Franklin
Johnson ; William Moraga , Robert Boston. Cases
31-CA-4770-1, 31-CA-4770-2, and 31-CA-
4770-3
June 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On August 20, 1975, Administrative Law Judge
William J Pannier III issued the attached Decision
in this proceeding Thereafter, Respondent filed ex-
ceptions and a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act by dis-
charging employees Franklin Johnson and William
Moraga and Supervisor Robert Boston because they
engaged in activities protected by Section 7 of the
Act, specifically the sending of a letter as members of
the Union's executive board to J R Collins,
Respondent's general foreman and a member of the
Union The three alleged discriminatees were mem-
bers of the Union's executive board The text of the
letter, mailed on August 13, 1974,2 to Collins, and on
which appeared the signatures of all executive board
members reads
The Executive Board of Local Union No 484
requests your presence at a meeting to be held at
this Local Union office, 1955, N Ventura Ave-
nue, Ventura, Calif The meeting will convene at
7 30 p in August 26, 1974 The purpose of this
meeting is to discuss ways and means of having
a more harmonious job, both for the mutual
benefit of the local union members and the Con-
tractors job
Your failure to appear at this meeting, will give
just cause to be disciplined by the Executive
i In the absence of exceptions thereto, we adopt, pro forma the Adminis-
trative Law Judge s rationale for denying Respondent's motion for deferral
to arbitration Members Fanning and Jenkins would not in any event defer
to arbitration in this proceeding for the reasons set forth in their dissents in
Collyer Insulated Were, A Gulf and Western Systems Co, 192 NLRB 837
(1971), and subsequent cases
2 All dates herein are 1974
509
Board, under Article XII, Paragraph 2, of the
Local Union 484 By-Laws 3
Johnson, Moraga, and Boston were discharged on
August 15 The Administrative Law Judge found
that they were terminated because they had engaged
in the protected activity of co-signing the letter from
the Union's executive board to Collins We agree
with the finding that they were terminated for send-
ing the letter , but we find, however, that the signing
and sending of the letter to Collins were activities not
protected by Section 7 of the Act We, therefore, find
the discharges not violative of Section 8(a)(1)
It is well settled that employees who engage in in-
traunion activity are protected from reprisal or dis-
crimination by their employer However, where such
activity transcends purely internal union affairs and
interferes with a supervisor-member's conduct in the
course of representing the interests of his employer,
the activity may be violative of Section 8(b)(1)(B) of
the Act and therefore lose its protection 4
In Florida Power & Light Co,1 the Supreme Court
held that whether or not a union violates Section
8(b)(1)(B) by disciplining 6 a supervisor-member de-
pends on whether that discipline may adversely af-
fect the supervisor's performance of his 8( b)(1)(B)
duties Thus, the Court said
The conclusion is thus inescapable that a
union's discipline of one of its members who is a
supervisory employee can constitute a violation
of §8(b)(1)(B) only when that discipline may ad-
versely affect the supervisor's conduct in per-
forming the duties of, and acting in his capacity
as, grievance adjuster or collective bargainer on
behalf of the employer [417 U S at 804-805 ]
A Board majority has interpreted the Supreme
Court's holding in Florida Power & Light to mean,
s
The test of art XII, par 2 of the bylaws was reproduced on the lower
lefthand corner of the letter sent to Collins and provides that
Members may be disciplined by the Executive Board for failure to
appear before the Executive Board once so ordered by the business
manager of the Local Union or his representative The Executive Board
may request such officers and/or members to meet with them at any
time they deem necessary
4Industrial First Inc 197 NLRB 714 (1972), where the Board held that it
was not a violation of the Act for an employer to discharge a union official
because he provoked a supervisor-member into resigning as a supervisor
There the employee threatened to bring intraunion charges against the su-
pervisor The discharged employee was president of the local union and
acting business agent immediately preceding his discharge The absence of
any finding in that case that the union violated Sec 8(b)(1)(B) of the Act
suggests only that no such charge had been filed and the issue was not
before the Board
5 Florida Power & Light Co v International Brotherhood of Electrical
Workers, Local 641, et al, 417 U S 790 (1974)
6 The Board has held that a threat to discipline a supervisor-member is
coercive and may violate Sec 8(b)(1)(B) See Industrial First, Inc, supra See
also San Francisco-Oakland Mailers Union No 18, International Typographt
cal Union (Northwest Publications, Inc), 172 NLRB 2173 (1968)
224 NLRB No 71
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inter alga, that in situations where the disciplined su-
pervisor has engaged only in the performance of su-
pervisory activities (not lirnited to grievance adjust-
ment or collective bargaining), a union's disciplining
of that supervisor violates Section 8(b)(1)(B) of the
Act because "it is reasonably likely that an adverse
effect will carry over to the supervisor's performance
of his 8(b)(1)(B) duties "7
In the Oakland Mailers case, supra, the union cited
several supervisor-members to appear before the ex-
ecutive committee to answer certain allegations of
violation by individuals covered by the collective-
bargaining agreement The Board concluded that the
union violated Section 8(b)(1)(B), finding that the
union 's actions, including citations, fines, and threats
of citation, were designed to change the employer's
representatives from persons representing the view-
point of management to persons responsive or sub-
servient to the union's will The Supreme Court as-
sumed , without deciding, that the Board' s decision in
Oakland Mailers fell within the outer limits of the test
enunciated by the Court
Turning to the record in the instant case, the letter
sent by the union executive board to Collins stated
that the purpose of the meeting to which he was sum-
moned was "to discuss ways and means of having a
more harmonious job, both for the mutual benefit of
the local union members and the Contractors fob "
As stated earlier, Collins was threatened with disci-
pline in the event that he failed to appear at the
meeting Boston, who is chairman of the union exec-
utive board testified that, although he did not consid-
er that they were summoning an agent for Respon-
dent to the meeting,"we called the general foreman
before the Executive Board, and that is as high
as you can go " Boston also stated that Collins was
not called to the meeting as a representative of Re-
spondent, "but he would have a more inside track
with Bovee and Crail " None of the members of the
executive board who testified could recall whether
any other supervisors had received a letter like the
one sent to Collins Following the receipt of the let-
ter, Collins became upset, and according to Collins'
uncontroverted testimony Boston admitted that he
thought the letter would have that effect on Collins
On August 15, 1974, 1 day after the receipt of the
letter, Respondent discharged Boston, Johnson, and
Moraga The Administrative Law Judge found, and
we agree, that the discharges were effectuated be-
cause the three employees had signed the aforemen-
tioned letter from the Union's executive board to
Collins The Administrative Law Judge found, how-
ever, that the activity was protected because the testi-
mony concerning the events which transpired at the
August 26 executive board meeting do not disclose
any effort by Boston, Moraga, or Johnson to dictate
the manner in which Collins should perform his su-
pervisory duties Although the record evidence con-
cerning the August 26 meeting is somewhat contra-
dictory, we need not resolve such conflicts, for we
find that the discussions at the August 26 meeting
have absolutely no relevance to the issue of whether
the sending of the letter to Collins on August 13 was
protected activity The meeting took place 11 days
after Boston, Moraga, and Johnson were terminated
The tendency of the threat of discipline to affect Col-
lins' activities as an 8(b)(1)(B) representative can
hardly be determined from later conduct towards
Collins by persons previously terminated for making
the threat It is the letter threatening Collins with
discipline for failing to attend the meeting which is
our concern here
We conclude that the summoning of Collins to the
meeting, and the explicit threat of discipline,' was
clearly calculated to interfere with Respondent's con-
trol over its own representative The record indicates
that many grievances had been filed with the Union
by employees who were concerned over the distribu-
tion of overtime, and it is quite clear that Collins was
directed to attend the meeting because he was be-
lieved to be high enough in management to change
Respondent's position with respect to the grievances,
particularly those involving the assignment of over-
time It is noteworthy that the record reveals no
union complaints, charges, or grievances against Col-
lins, and their absence indicates that no intraunion
problems were involved We find, rather, that Collins
was threatened with discipline and summoned to the
meeting because of the underlying differences be-
tween the Union and Respondent, and that the ac-
tion of the union executive board was designed to
coerce Respondent's representative, Collins, into rep-
resenting the viewpoint of the Union with respect to
bargainable subjects As we said in Oakland Mailers,
supra, in enacting Section 8(b)(1)(B), Congress
sought to prevent the very evil involved herein-
union interference with an employer's control over
its own representative The fact that the Union may
have sought substitution of attitudes rather than per-
sons, and may have exerted its pressures on Respon-
dent by indirect rather than direct means, cannot al-
' We cannot find as does the Administrative Law Judge , that because the
meeting did not infringe upon Respondent's relationship with the Union
7 See Chicago Typographical Union No 16 (Hammond Publishers Inc) 216 then neither does the threat to discipline Collins for failing to attend that
NLRB 903 ( 1975), and New York Typographical Union No 6 International meeting At the time Collins was threatened , he was not told of the precise
Typographical Union AFL-CIO (Daily Racing Form, a subsidiary of Triangle purpose of the meeting , and we do not treat the various parts of the letter
Publications Inc) 216 NLRB 896 (1975) separately but instead consider it as a whole
BOVEE AND CRAIL CONSTRUCTION COMPANY 511
ter the ultimate fact that pressure was exerted here
for the purpose of interfering with Respondent's con-
trol over its representative
The thrust of our dissenting colleague's analysis
appears to be that the Union must be considered
only as an entity, and that its agents are not individu-
ally culpable as employees so long as they are assist-
ing the Union That is simply not the law Employ-
ees, acting on behalf of the Union, may under certain
circumstances lose the protection of the Act when
they engage in slowdown activities, disparage their
employer's product, or participate in a strike or in
picketing in violation of a no-strike clause I Our dis-
senting colleague would, without legal justification,
insulate the perpetrators of the unlawful act from the
act itself We cannot accept that reasoning As the
poet has said, "How can we know the dancer from
the dance9"
We conclude that the activities of Boston, John-
son, and Moraga, in connection with the August 13
letter, were not protected by Section 7 of the Act
Accordingly, Respondent did not violate the Act
when it discharged them for engaging in the afore-
mentioned activity Therefore, we shall dismiss the
complaint in its entirety
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety
MEMBER FANNING, dissenting
The Employer is the Respondent in this proceed-
ing It is here because it discharged three union mem-
bers for assisting their Union by serving on its execu-
tive board and signing official correspondence on its
behalf All pretense that the three were discharged
because of their conduct as employees has now been
dropped However, their right to assist a labor orga-
nization free of employer retaliation is held forfeit
because their Umon is found to have violated Sec-
tion 8(b)(1)(B) I think that is wrong and contrary to
the design of the Act
The facts are simple, the Union's executive board
sent a letter to a union member-J R Collins, the
Respondent's general foreman-requesting him to
appear before the board The letter, a form regularly
used, noted that members could be disciplined if they
did not appear Relying on little more, the majority
9 In Stone & Webster Engineering Corporation, 215 NLRB 517 (1974), the
Board held that the employer properly discharged an employee who was the
union vice president and job steward because he engaged in picketing which
was in violation of a no-strike clause and which had an object of changing
the employer's work assignment
finds that the Union violated Section 8(b)(1)(B) It
then reasons that any assistance to the Union in that
connection is not protected "where such activity
transcends purely internal union affairs [it may vio-
late the Act] and therefore lose its protection" 10
I take that to mean that unlawful activity is unpro-
tected That proposition has the ring of common-
sense, but it has an obvious, somewhat paradoxical,
corollary that which is protected is not unlawful
However, we may maintain both propositions with-
out contending with the paradox if proper attention
is paid to the fact that the executive board members
have a dual status, that as union members as well as
that as employees, and that the Act is constructed
with care to insulate an employee's job from his orga-
nizational rights With that in mind, our paradox is
easily resolved, for the assistance an employee ren-
ders to a labor organization as an employee is not the
same thing as his "unlawful" official action 11 The
latter is attributable only to the union, not to the
individual as an employee
It is only by construing the employees' assistance
to the Umon as though it were limited to the unlaw-
ful activity, unmindful of the complexities of the Act
and its central design, that this result can be justi-
fied 12 Give it any other interpretation and the
Respondent's action is simply the archetypal unfair
labor practice the cause for the discharges arose out-
side the employment relation in the course of official
union duty 13 The executive board members did not,
and could not, violate Section 8(b)(1)(B) as employ-
ees because it is a violation which can be committed
only by a labor organization It is only because they
did not act as employees or natural persons, but as
union representatives, that there is any basis for find-
ing that the Union engaged in unlawful activity Had
they acted as employees rather than in their union
capacity, it could not even be argued that they, or the
Union, had violated Section 8(b)(1)(B)
10 A single case decided without citation or legal explication is urged for
the proposition that an employer may retaliate against an employee for his
action as a union official and not as a natural person Industrial First, Inc
197 NLRB 714 (1972) Whatever the merits of the decision in that case, the
reported facts do not establish that the employee was a union official at the
time or that he was acting in an official capacity, the absence of any finding
that the union had violated the Act suggests that he was not
11 The majority analyzes the legal situation as though no labor organiza-
tion were involved and we were merely considering "concerted activity
rather than assistance to a labor organization The former is protected or
unprotected depending upon whether its objective is protected, assistance to
a labor organization is itself a protected activity
12 Cf N L R B v Drivers Chauffeurs and Helpers Local Union No 639,
International Brotherhood of Teamsters Chauffeurs Warehousemen and Help
ers of America [Curtis Brothers], 362 U S 274 292 (1960)
13 Compare employee participation in a strike striking employees act
within the employment relation by withholding their services as employees
and that is true whether or not they are also union officials Even then we
do not automatically conclude that any misconduct renders their participa-
tion in the strike unprotected It may be so interwoven with protected activi-
ty that it must be balanced against any misconduct by the employer
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even assuming there was justification for some
reasonable action by the Respondent, the discharges
cannot be condoned because their effect is not rea-
sonably limited to the Union's treatment of Collins
Discharge of union officials for their action in that
capacity, and outside the employment relation, is in-
herently destructive of the right to assist a labor orga-
nization We are obligated, then, to "exercise [our]
duty to strike the proper balance between the assert-
ed business justifications and the invasion of employ-
ee rights in light of the Act and its policy," 14 but the
burden is on the Respondent Even if the effect on
employee rights had been slight, so long as they
could have been affected to some extent, the Respon-
dent would still have the burden of establishing that
it was motivated by legitimate objectives 15
An employer which is the target of unlawful union
action may well wish to respond, and the protection
of its rights under the Act may well be legitimate and
substantial business justification as contemplated by
Great Dane, supra It is not debatable that when the
basic rights of employees under the Act come into
conflict with the basic rights of employers, the em-
ployer is entitled to respond to preserve its rights But
not with unfettered latitude, the employer 's response
must be no more than sufficient to its legitimate ob-
jective 16
The Respondent's discharge of union executive
board members fails that test An employer's actions
which infringe upon basic employee rights, even if a
legitimate objective has been demonstrated, must
nonetheless be reasonably calculated to secure that
objective, and no more, before the rights of the em-
ployees must give way Not only was a more effective
alternative open to the Respondent, but the path it
did pursue was one which could vindicate its rights
only by going beyond any legitimate objective and
restraining employees in the exercise of their right to
assist a labor organization Its response reached only
its employees, not the Union they served
If the Union violated the Act, the Respondent had
only to turn to the Act for protection Had it done so,
there would be no need now to disentangle the
Respondent's rights from the rights of its employees
Under the law, the Respondent could have reached
the Union, the party allegedly guilty of restraining
and coercing the Respondent, and restrained it from
like acts in the future Only if the Union had not
acted unlawfully could the Respondent have gained
by taking direct action against its employees
The Respondent, lacking any need for direct ac-
14 N L R B v Great Dane Trailers Inc 388 U S 26 33-34 (1967)
15 Id at 34
16
H & F Binch Co Plant of the Native Laces and Textile Division of
Indian Head Inc v NLRB 456 F 2d 357 (C A 2 1972)
tion against its employees,17 action not reasonably
calculated to secure a legitimate objective, cannot be
said to have had a legitimate objective Against that
weighs not only the rights of its employees, but also
the legal consequences of vindication of the Respon-
dent which cannot readily be confined to the facts of
this case
If an employee is accountable to his employer for
action as a union official, which can be unlawful and
unprotected only if charged to a labor organization,
there is no reason why an employer cannot dis-
charge a union member who votes in favor of any
unlawful action by his union Certainly an employer
would be acting lawfully should it discharge a union
member who, as a union negotiator, unlawfully per-
sisted in urging a position outside the scope of man-
datory bargaining-even with another employer In
the future no action by a union member could safely
be assumed to be free from his employer's judgment
It is particularly troublesome that this far-reaching
decision should be based on a claim of unlawful
union action which rests on only marginal legal and
factual footings Section 8(b)(1)(B) prohibits a union
from restraining or coercing an employer in the se-
lection of his representative for the purpose of collec-
tive bargaining or adjusting grievances But there is
no evidence that the Union summoned Collins in
connection with his performance of either duty, or
even that he had such duties
The testimony of the Respondent's project manag-
er, Denny, as well as that of Collins, establishes that
all decision-making authority was concentrated in
Denny Denny testified that he intentionally re-
tained, to the exclusion of Collins, the authority to
deal with both the Union and grievances-the sub-
jects of Section 8(b)(1)(B) The Respondent does not
except to the absence of any finding that Collins was
its representative for those purposes, does not argue
that he was, and urges no testimony which could lead
to that conclusion It merely indulges itself in a pre-
sumption that Collins was its representative, and the
majority humors the Respondent in that presump-
tion
The majority finds that Collins was directed to at-
tend the meeting because he was thought capable of
changing the Respondent's position concerning over-
17 1 do not imply that an employer or its employees is restricted to the
Act s procedures in protecting rights That, however, is a realistic alternative
which must be taken into consideration when weighing competing interests
under the Act So too is the presence or absence of a need for immediate
action which may turn on the likelihood and extent of irremediable injury
should action be delayed The latter of course is the standard for securing
an injunction pending disposition of a proceeding Thus should it be con-
tended that the Respondent might have suffered irreparable damage while
waiting the results of a Board proceeding the short answer is that if the
contention is true an adequate, and once again more effective remedy is
still available
BOVEE AND CRAIL CONSTRUCTION COMPANY 513
time, a bargamable matter Although Collins had no
authority at all in that area, the Union is found to
have coerced the Respondent's representative-Col-
lins-with respect to bargainable matters Relying
principally on Oakland Mailers," as interpreted in
later cases , the majority concludes that Collins'
forced appearance in connection with a bargainable
matter might affect the performance of his duties for
the Respondent and, therefore, violated Section
8(b)(l)(B)
That conclusion is rationalized in light of Collins'
testimony that when he appeared before the execu-
tive board no grievances were discussed and that
there was no attempt to sway him, by rejecting con-
sideration of events occurring after the Union's letter
was sent to Collins 19 The majority reasons that the
Union sought to coerce Collins as the Respondent's
representative, and hence the Respondent But Col-
lins was not the Respondent 's representative, and,
unlike some sections of the Act , an attempt does not
violate Section 8(b)(1)(B) Perhaps the Union would
have coerced a representative of the Respondent if it
could have, but it could not Nor is that a matter of
looking at reasonable tendencies, it was a factual im-
possibility Like a wishful beggar, the Union is still
walking
The most that can be said for the Respondent's
defense is that Collins, perhaps a supervisor,20 but
not its representative for collective bargaining or ad-
justing grievances, was perfunctorily notified that he
could be disciplined should he ignore his Union's
summons No connection has been established be-
tween any action by Collins, or even any authority he
exercises , on behalf of the Respondent and his ap-
pearance before the Union All the record shows is
that union members had complained about the allo-
cation of overtime, which Collins has no control
over, and that there were no charges against Collins
18 San Francisco Oakland Mailers' Union No 18 International Typographi
cal Union (Northwest Publications Inc) 172 NLRB 2173 (1968) In addition
to my disagreement over the connection that Sec 8(b)(I)(B) requires be-
tween union discipline and the duties reached by that section , I do not read
Oakland Mailers as holding that requiring an authorized representative to
appear before a union on pain of discipline establishes `restraint and coer-
cion" of the employer without more In that case, fines were imposed arising
directly from the representative 's performance of protected duties and the
failure to appear served only as the occasion for their imposition and in
turn , were only part of a calculated campaign We did not hold that merely
requiring the representatives to appear, even in connection with protected
duties , would have violated the Act
i9 Whatever the merits of that approach it is difficult to reconcile it with
the majority s failure to harmonize their conclusion with Denny s views
Denny, a long-time union member and the Respondent s top representative
on the job, did not believe that Respondent was involved and thought that
it was a matter between Collins and the Union
20 The Respondent admits the complaint allegation that Collins is a super-
visor , but neither Collins nor Denny, the project manager , provides much
support for that conclusion Collins does not handle grievances hire, fire
lay off, or allocate overtime
personally But Section 8(b)(1)(B) does not broadly
prohibit a union from requiring the appearance of a
supervisor with an exception for matters solely relat-
ing to the union That is not the law, not under Flori-
da Power,21 even as interpreted by a majority in Ham-
mond and Triangle,22 despite reliance on those cases
here There is no burden on the General Counsel to
prove the Union's purpose and demonstrate that its
reach was limited to its internal affairs The burden is
on the Respondent to prove its affirmative defense,
and that it has not
It is the Respondent, not the Union or its peremp-
torily discharged executive board members, which
overstepped even the maximum limits of the Act
Even were I persuaded that the Union, not the
Respondent's employees, had violated the Act, I
would still conclude that the Respondent illegally
discharged union members for assisting a labor orga-
nization It could not have been the intention of Con-
gress that an employee might assist a labor organiza-
tion only with the constant threat that some official
action in his union capacity would make his job for-
feit The national labor policy is to encourage collec-
tive bargaining, and the right of employees to assist a
labor organization is the single most important em-
bodiment of that policy I think that means that an
employee is not accountable to his employer for his
actions as a union official which are otherwise law-
ful "The policy of the Act is to insulate employees'
Jobs from their organizational rights " 23
21 Florida Power & Light Co v I B E W, 417 U S 790 (1974) held that
union discipline for performing struck work did not violate Sec 8(b)(1)(B)
The Court interpreted that section narrowly in light of Congress restricted
intention of protecting an employer in the selection of its representative for
the particular purposes of collective bargaining and adjusting grievances
giving it an almost literal construction Criticizing the expansionist reading
of Sec 8(b)(1)(B) the Court held that at its outermost limit the section could
be violated only if union discipline stemmed from an employer
representatives performance of his function as a bargainer or as a griev-
ance adjuster The minimum test-not a hunting license-is whether a
unions discipline may affect the employer s representative in the perfor-
mance of his protected functions It does not follow that the possibility of
an effect or even an effect is enough to support a violation All discipline is
coercive In most instances it is unlikely that its effect will be confined to its
cause it demonstrates the power of he who imposes it But even coercion
which can be felt in areas the Act protects is not necessarily unlawful
N L R B v Great Dane Trailers Inc supra N L R B v Allis Chalmers Mfg
Co 388 U S 175 (1967) Undoubtedly there was some effect on the repre-
sentatives in Florida Power nonetheless it was lawful
22 Chicago Typographical Union No 16 ( Hammond Publishers Inc) 216
NLRB 903 (1975) New York Typographical Union No 6 International Typo
graphical Union, AFL-CIO (Daily Racing Form a subsidiary of Triangle Pub
lications, Inc), 216 NLRB 896 (1975) They are relied on for the proposition
that discipline of a supervisor arising from the performance of his superviso-
ry duties violates Sec 8(b)(1)(B) `because it is reasonably likely that an
adverse effect may carry over to the supervisor 's performance of his
8(b)(1)(B) duties " Triangle is of particular interest because of its disregard
of a union 's intent, relying instead on the putative future effect of discipline
on the performance of protected duties But in both cases there were pro
tected duties where there are none the putative future effect is nil Also see
my2 dissenting opinions in these cases
s The Radio Officers Union of the Commercial Telegraphers Union, AFL
[Bull Steamship Co ] v N L R B 347 U S 17, 40 (1954)
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philosophy, justice, and the law go hand in hand
The majority's decision is contrary to the Act's phi-
losophy, it is unjust, it is not the law, and I dissent
DECISION
STATEMENT OF THE CASE
WILLIAM J PANNIER III, Administrative Law Judge This
matter was heard by me at Los Angeles, California, on
May 29 and 30, 1975 On March 24, 1975, the Regional
Director for Region 31 of the National Labor Relations
Board issued an order consolidating cases, consolidated
complaint and notice of hearing, alleging violations of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended, 29 U S C Sec 151, et seq, herein called the
Act, on the basis of individual unfair labor practice
charges filed by each of the charging parties on September
26, 19741
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs Based upon the entire record,
the briefs filed on behalf of the General Counsel and on
behalf of the Respondent, and upon my observation of the
demeanor of the witnesses, I make the following findings
of fact and conclusions of law
I JURISDICTION
At all times material herein, Respondent has been a cor-
poration duly organized and existing by virtue of the laws
of the State of California, with an office and principal
place of business located in Paramount, California, where
it is engaged in the building and construction industry In
the course and conduct of these business operations, Re-
spondent annually purchases and receives goods valued in
excess of $50,000 directly from suppliers located outside
the State of California and, during the preceding 12
months, performed services valued in excess of $50,000 for
the United States Government
Therefore, I find, as admitted in the answer, that Re-
spondent has been at all times material herein an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act
II THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 484, AFL-CIO, herein called the
Union, has been at all times material herein a labor organi-
zation within the meaning of Section 2(5) of the Act
III MOTION FOR DEFERRAL TO ARBITRATION
At the hearing and in its brief, Respondent moved for
dismissal of the complaint on the grounds that it is a party
1 Unless otherwise stated, all dates occurred in 1974
to a collective-bargaining agreement with the Union which
provides for binding arbitration and that as it is Board
policy to defer to procedures established by the parties for
resolving disputes under the doctrine of Collyer Insulated
Wire, A Gulf and Western Systems Co 192 NLRB 837
(1971), the complaint should be dismissed Such a motion
must be considered prior to considering any other facets of
this case Bio-Science Laboratories, 209 NLRB 796, fn 1
(1974)
At all times material herein, Respondent and the
Union's International, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, (AFL-CIO), have been
parties to a collective-bargaining agreement covering "all
journeymen and apprentices engaged in the installation of
all plumbing and/or pipe fitting systems and component
parts thereof " So far as the record discloses, this is
the only agreement covering southern California opera-
tions to which Respondent is a party with either the Union
or its International
Article XXI to the agreement, entitled Grievance Proce-
dure and Cancellation, provides, inter alia "All disputes
and controversies as to the meaning or interpretation of
any provision of this agreement, and all matters relating to
violations of this agreement, shall be treated as a grievance
" The article then continues by specifying the steps to
be followed in processing such grievances to arbitration
meeting between the local union and employer representa-
tives, followed by meeting between International and em-
ployer representatives, followed by arbitration before a
panel composed of three representatives of each party, and
culminating, if the matter is not by then resolved, with
hearing before a permanent impartial arbitrator, who is
appointed by the parties and serves for the duration of the
agreement The agreement provides specifically that "The
decision of the impartial arbitrator shall be final and bind-
ing on all parties "
The instant case, as set forth in more detail below, in-
volves the issues of whether two employees and one fore-
man were discharged for unlawful considerations and of
whether Respondent told employees that those termina-
tions were occasioned by the union and/or protected con-
certed activity of the three discharged individuals Respon-
dent concedes that there is no language in the agreement
restricting or covering the discharge of personnel and the
contract provides specifically that Respondent is "the sole
judge of the number of men required," retains "the right to
reject any applicant referred by the Union," and has sole
responsibility for determining the number of foremen and
for selecting the individuals who will serve as foremen
Consequently, it is clear, and I find, that the selection of
employees and foremen for termination is a matter not re-
stricted by the collective-bargaining agreement and is one
over which Respondent exercises unfettered discretion It
is, therefore, not a matter falling within the phrase, "dis-
putes and controversies as to the meaning or interpretation
of any provision of this agreement" nor is it one "relating
to violations of this agreement "
Yet, it is evident that the Union did commence handling
the matter of the terminations in a manner consistent with
the procedures set forth in the collective-bargaining agree-
BOVEE AND CRAIL CONSTRUCTION COMPANY 515
ment Thus, while no written grievances were filed, the
Union was notified of the terminations and both Business
Agent Frank Smith and Business Manager Henry Grimm
spoke with Respondent's officials, consistent with the pro-
cedure for handling grievances in the first step Moreover,
not satisfied with Respondent's unwillingness to reinstate
the three men, Grimm contacted International Representa-
tive Lou Stein, who, in accordance with the second step of
the contract's grievance procedure, appears to have con-
tacted Respondent concerning the matter However, the
dispute progressed no further due to four factors Stein
advised Grimm that Respondent had said that the termina-
tions were part of a normal layoff, at that point, Grimm
was personally involved in negotiations with an association
and a strike was in progress as a result of those negotia-
tions, so far as Grimm was aware the Union had never
processed a grievance to arbitration under the procedure
set forth in its agreement with Respondent, and, it would
have been impractical to have pursued the matter further
as progress to the next step of the grievance procedure
would have required the three terminated individuals to
have incurred the expense of journeying from California to
Washington, D C
Respondent correctly argues that in Collyer Insulated
Wire, supra, the Board regularized the previously ad hoc
procedure of deferring further proceedings pending resolu-
tion of disputes by arbitration Id, at 841-842 As the Col-
lyer doctrine evolved, the Board has made plain that it can
apply to situations involving disputes over the discharges
of employees, Appalachian Power Company, 198 NLRB 576
(1972), Gary-Hobart Water Corporation, 200 NLRB 647
(1972), and that it can apply even in situations where there
are contentions that a reason for the employers' actions
was activity protected under Section 8(a)(3) of the Act
National Radio Company, Inc, 198 NLRB 527 (1972), Ap-
palachian Power Company, supra It has become equally
clear that once having agreed voluntarily to a private
means of resolving disputes, parties may not then avoid
deferral by the simple expedient of electing not to utilize
the voluntarily established procedure Columbia Typograph-
ical Union No 101, International Typographical Union No
101, International Typographical Union of North America,
AFL-CIO (Byron S Adams Printing, Inc), 219 NLRB 88
(1975), Urban N Patman, Inc, 197 NLRB 1222 (1972),
affd 493 F 2d 1249 (C A 9, 1974)
Yet, the scope of the deferral doctrine is defined by the
extent of the agreement struck by the parties-both with
regard to the procedure for resolving disputes and with
regard to the types of disputes made subject to that proce-
dure Thus, where provision is made for arbitration, but the
parties are not obliged to be bound to that procedure for
resolving disputes, there will be no deferral "implicit with-
in Collyer is the rationale that the Board will defer to arbi-
tration proceedings only when, in effect, all parties in-
volved are bound by the results of such arbitration "
United Steelworkers of America, AFL-CIO, and its Local
No 4454 (Continental Can Company, Inc), 202 NLRB 652,
654 (1973), see also Tulsa-Whisenhunt Funeral Homes,
Inc, 195 NLRB 106, fn 1 (1972), enfd 84 LRRM 2300
(C A 10, 1973) Similarly, notwithstanding the existence of
a voluntarily established, binding procedure for resolving
disputes, the particular dispute at issue must be one which
is subject to application of that procedure Joseph T Ryer-
son & Sons, Inc, 199 NLRB 461, 462 (1972), Reapp Typo-
graphic Service, Inc, 204 NLRB 792, In 2 (1973), Interna-
tional Union of Operating Engineers, Local Union No 428,
AFL-CIO (Mercury Constructors, Inc), 216 NLRB 580
(1975)
In the instant case, problems exist in both areas Thus,
while issues of arbitrability are "properly determinable by
an arbitrator," Urban N Patman, supra, Respondent's
agreement contains no provision concerning terminations
and the grievance procedure is confined to those disputes
relating to "meaning or interpretation" of contract provi-
sions and disputes "relating to violations" of the agree-
ment Accordingly, no issue of arbitrability exists, for the
issues posed by these terminations are clearly independent
of the collective-bargaining agreement Reapp Typographic
Service, supra, Bio-Science Laboratories, supra Moreover,
the fact that the Union commenced handling the dispute
by following the procedures set forth in the grievance and
arbitration provision of its contract with Respondent does
not afford a basis for concluding that deferral should be
accorded The simple fact is that at no point did the Union
agree, independent of its contract, that the issues posed by
the terminations should be submitted to binding arbitra-
tion and this would be necessary, at the minimum, to appli-
cation of the deferral doctrine Steelworkers, Local No
4454, supra, Tulsa-Whisenhunt Funeral Homes, supra Con-
sequently, I find that the Union's initial processing of the
dispute in a manner consistent with that set forth in the
grievance procedure of its contract with Respondent is not,
of itself, a sufficient basis for deferral on the grounds that
there is a voluntary agreement to private resolution of the
dispute Cf Columbia Typographical Union No 101, supra,
Urban N Patman, supra
However, Respondent argues that as a matter of policy,
the Board should defer to arbitration without regard to the
specific provisions of collective-bargaining agreements en-
compassed by the privately established procedures for re-
solving disputes In support of this contention, Respondent
advances two arguments First, Respondent argues that
since Collyer, the Board has expanded the deferral doctrine
to the point where, in essence, the wording of the contract
is not significant, citing in support of this argument Na-
tional Radio Company, Inc, supra, Peerless Pressed Metal
Corporation, 198 NLRB 561 (1972), and Houston Mailers
Union No 36 affiliated with International Mailers Union
(Houston Chronicle Publishing Company), 199 NLRB 804
(1972) Secondly, Respondent argues that there is a public
policy, recognized by the Board and the courts, favoring
the private resolution of disputes and that as this policy is
reflected in Section 203(d) of the Labor Management Rela-
tions Act ("Final adjustment by a method agreed upon by
the parties is hereby declared to be the desirable method
for settlement of grievance disputes arising over the appli-
cation or interpretation of an existing collective-bargaining
agreement "), deferral should be granted
Contrary to Respondent's first argument, in each of the
three cited cases, the dispute involved specific provisions of
the contract in existence between the parties Thus, in Na-
tional Radio the Board listed three specific clauses apphca-
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ble to the dispute 2 In Peerless, the Board found specifical-
ly, "that the core of the dispute involved a good-faith dis-
agreement between the parties concerning the interpreta-
tion of the contract '-namely, was the employer's
unilateral conduct precluded by its collective-bargaining
agreement, construed in the light of past practice and nego-
tiating history" In this regard, it should be noted that the
record in the instant case is devoid of evidence concerning
negotiating history or past practice regarding the pro-
cessing of terminations when disputes arose between Re-
spondent and the Union Finally, in Houston Mailers it was
the applicability of, at the very least, sections 17 through 20
of the agreement involved in that case which occasioned
application of the deferral doctrine Thus, in each of these
three cases, the Board applied the deferral doctrine only
after first ascertaining that there were substantive contract
provisions encompassing the dispute which provided a ba-
sis for application of the privately established procedure
for resolution No similar basis for applying the grievance
procedure in Respondent's contract exists in the instant
case 3
Respondent's second argument in support of its conten-
tion that the Board should defer to arbitration without re-
gard to the specific substantive provisions of collective-bar-
gaining agreements is based upon the public policy
favoring arbitration as illustrated by Section 203(d) Initial-
ly, it is worth noting that this language is included in the
section of Title II pertaining to the Federal Mediation and
Conciliation Service, not to the Board Thus, following the
above-quoted sentence from Section 203(d), the following
sentence appears "The [Federal Mediation and Concilia-
tion Service] is directed to make its conciliation and media-
tion services available in the settlement of such grievance
disputes only as a last resort and in exceptional cases " Of
more pertinence to this proceeding is the language of Sec-
tion 10(a) of the Act "The Board is empowered, as herein-
after provided, to prevent any person from engaging in any
unfair labor practice This power shall not be affected
by any other means of adjustment or prevention that has
been or may be established by agreement, law, or otherwise
11
To date, the Board has seen fit to defer to voluntarily
established arbitration only where there has been an agree-
ment that the arbitration procedures will embrace the dis-
pute and be binding In the instant case , there is no evi-
dence of such agreement Therefore, I deny Respondent's
motion for deferral under the Collyer doctrine 4
2 Significantly, one of these clauses, article XIII, specifically prohibited
discipline for other than "just cause " This approach in a collective-bargain-
ing agreement would appear to answer Respondents apparent argument
concerning the difficulty of drafting a clause to cover all possible situations
for which employees might be discharged
3 Contrary to the inference in Respondent's argument, deferral is not con-
fined to situations where there is a need to interpret the language of a
contract clause It is equally applicable to situations where the wording of
the clause involved in the dispute is quite clear, but where its application to
the dispute which has arisen is contested
4 In view of this disposition of the motion for deferral, I find it unneces-
sary to reach the General Counsels argument that the alleged object of
Respondents conduct-reprisal for acting in official capacity for the
Union-precludes application of the deferral doctrine
IV ISSUES
A Were the activities of Franklin Johnson, William
Moraga, and Robert Boston in connection with a letter
from the Union 's Executive Board transmitted to General
Foreman John R Collins protected by Section 7 of the
Act9
B Whether Respondent , on or about August 15,
through Collins, told employees that Johnson , Moraga,
and Boston were terminated because they had engaged in
union and/or protected concerted activity , if so, whether
Respondent thereby violated Section 8 (a)(1) of the Act9
C Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging employees Johnson and Moraga
on August 15 and by thereafter failing and refusing to rein-
state these two employees9
D Whether Respondent discharged Supervisor Boston
on August 15 and thereafter failed and refused to reinstate
him in order to discourage its employees from engaging in
union and/or protected concerted activities , if so, did Re-
spondent thereby violate Section 8 (a)(1) of the Act'
V SEQUENCE OF EVENTS
A Respondent's Operations at the Santa Suzana Test
Facilities
From a record somewhat vague in this regard, it appears
that Respondent does business in many States and that one
location where it has conducted operations is the Rocket-
dyne Division of Rockwell International Corporation San-
ta Suzana Test Facilities in Canoga Park, California That
facility is divided into areas, denominated Coca followed
by a different number for each area and with each area
further subdivided by (a), (b), (c), etc designations Thus,
Respondent had two contracts for installation of pipe on
test stands used to test rocket engines for the space shuttle
program, which involved modifying and adding to existing
structural steel test stands by installing piping so that the
vessels or trunnion to which the rocket engine was attached
could be positioned properly on the test stand The work
under these contracts was performed at locations denomi-
nated Coca 1 and, approximately a quarter of a mile away,
Coca 4
The two contracts under which Respondent performed
this work for Rocketdyne were designated bid package two
and bid package six Performance under both contracts
was initially intended to be on a fixed price basis, but com-
pletion was delayed under both contracts with the results
that completion on bid package six was delayed for 27 or
28 weeks after the initially scheduled June completion date
and completion on bid package two was also delayed
To avoid overloading its regular fabricator, Respondent
had issued a change for performance of shop fabrication
welding at Rocketdyne's site This led to the creation of
three weld shops and a cleaning area at a location approxi-
mately 1 or 2 miles from the bid package two test stand,
referred to as the "bowl area" However, by early summer,
the need for shop fabrication had diminished to the point
where Respondent began phasing out shop work and con-
solidating what little remained with its test stand work It
BOVEE AND CRAIL CONSTRUCTION COMPANY
was during this period that the facts giving rise to the in-
stant proceeding occurred
B The August 13 Letter
The alleged discriminatees were members of the Union's
Executive Board a five-member panel established for the
purpose of handling intraumon problems unrelated to
grievances William Moraga had worked at the test facility
as a pipefitter and Franklin Johnson as a welder After
serving as general foreman, Robert Boston had become a
foreman in the bowl and it is undisputed that he was a
supervisor at all times material herein
On July 22, the Executive Board resolved to send a form
letter to J R Collins, Respondent's general foreman and a
member of the Union The text of this letter, ultimately
mailed on August 13 and on which appeared the signatures
of all Executive Board members, reads
The Executive Board of Local Union #484, requests
your presence at a meeting to be held at this Local
Union office, 1955 N Ventura Avenue, Ventura,
Calif
The meeting will convene at 7 30 p in Aug 26, 1974
The purpose of this meeting is to discuss ways and
means of having a more harmonious job, both for the
mutual benefit of the local union members and the
Contractors job
Your failure to appear at this meeting, will give just
cause to be disciplined by the Executive Board, under
Article XII-Paragraph 2, of the Local Union 484 By-
Laws
The text of article XII, paragraph 2 of the bylaws was
reproduced on the lower left corner of the letter to Collins
and provides that members who failed to appear before the
Executive Board "may be disciplined "
Two principal points were covered in depth during the
course of the hearing regarding the transmission of this
letter the normality of sending such a letter and the under-
lying circumstances which had led to the decision to send
it Turning first to the frequency of sending such letters,
Johnson testified that during the year and a half that he
had been a board member, no similar letter had been sent
to any other foreman, although he acknowledged that he
had been aware of the existence of the form letter prior to
the July 22 Executive Board meeting and he admitted that
he had not attended all such meetings during his term of
office Both Business Manager Grimm and Business Agent
Smith testified that such letters had been sent to foremen in
the past, although not frequently, but neither identified any
specific examples of foremen who had received such letters
and Grimm acknowledged that he was not aware of any
such letter, other than the one to Collins, being sent during
Johnson's term as board member Boston, who had been
an Executive Board member for 4 or 5 months, testified
that it was "common procedure" to send such letters to
foremen and that while no other foremen of Respondent
had received such a letter, foremen employed by Bechtel
Corporation and R K T Plumbing, among others, had re-
ceived them
517
The second principal point litigated in connection with
the sending of the letter to Collins involved the circum-
stances which had led to the board's decision Johnson tes-
tified that he had "probably" been the one to raise the
subject during the July 22 semi-monthly meeting of the
board and that he had done so because while he had been
a steward at the test facility, he had learned of many minor
problems which had arisen As these did not involve viola-
tions of Respondent's collective-bargaining agreement with
the Union and inasmuch as there would have been
thorough confusion and consumption of time were he to
attempt to resolve these on the job with the stewards and
supervisors, Johnson testified that he believed that these
matters could be better handled were the board to meet
with Collins From the testimony of Boston, Moraga, and
Johnson, the letter was being issued to Collins in the
latter's capacity as a member of the Union and not in his
capacity as general foreman Further, there were no griev-
ances pending against Respondent at the test facility In
fact, Moraga testified that he not only had no grievances,
but that so far as he was aware, there was no lack of har-
mony on the job While Moraga was not asked, both John-
son and Boston, when asked, denied that the sending of the
letter was motivated by Boston's reduction to foreman and
Collins' status as general foreman
This might be an appropriate point at which to review
the events of August 26 when Collins met with the Execu-
tive Board Collins testified that,
as it turned out, most of the meeting was about
the men on the job and actually it was mostly the men
being efficient, sending out efficient men that were
capable of doing the job
I made the remark that we were the highest paid craft
probably in the world and that we were expected to
come out there and be able to do a decent job in the
pipe fitting industry
I do not remember how long the meeting lasted, but
that was mostly the discussion was to that extent
Although Collins denied that he had discussed, during this
meeting, referral of more efficient employees, he also testi-
fied that, "most of the discussions, as I said, were about
our manpower situation and qualified personnel " Simi-
larly, Boston testified that while there had been some dis-
cussion regarding the failure to rotate overtime, this was an
area over which Collins had no control and the conversa-
tion centered, instead, on "more harmonious relations be-
tween labor and management" with such items as piping
not fitting too well on the Coca 4(b) stand and which per-
sonnel were responsible for correcting vets (mistakes) from
the 21-6-9 extruded pipe being covered Grimm testified
that Collins was asked if there had been problems with the
overtime (as complaints had been received by the Union
concerning the matter) and what in his opinion would be
beneficial to the job Collins, testified Grimm, voiced the
opinion that some of the employees working on the job
were not as qualified as were others and this led to a dis-
cussion regarding the disparity of the qualifications of dif-
ferent workers It is noteworthy that Collins had brought a
tape recorder to this meeting and had announced that he
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended to turn it on if events became belligerent Yet, he
never did use the recorder
C The Discharges
On August 14, when the Executive Board's letter was
received at Collins' home by his wife , she telephoned Col-
lins at work 5 and reported the contents of the letter to him
That evening, Collins read the letter and on the following
day, reported its contents , excluding the substance of the
by-law provision, to Project Manager Dale Denny
Boston testified that at approximately 9 am on August
15, Collins motioned him outside the pump house where he
(Collins) said that his wife had been upset about receiving
the letter and that when he had brought the letter to work
and had shown it first to Ernie Pallotto 6 and then to Den-
ny, the latter had said, "They are gone, one two three "
Collins, testified Boston, went on to say that he knew what
the three fab shop employees were doing and, when Boston
pointed out that the board members had only wanted to
talk to him, had replied that it "is out of my hands" and
"You are going to go down the road" because of the letter
While denying that he had told Boston that the layoff was
because of the letter , Collins did admit having a conversa-
tion with Boston concerning the letter and the layoff Col-
lins further acknowledged that during that conversation, he
had told Boston that he did not appreciate receiving the
letter , that he was "upset over the letter" and thought that
Boston should have spoken to him first about the matter
prior to sending the letter, that he had told Denny about
the letter, and that "there was going to be a layoff and they
were going to be laid off that day "
Boston reported the substance of Collins' comments to
Moraga and Johnson and apparently as the three men were
conversing , Collins approached them with their checks and
work orders I Boston testified that when he pointed out
that his work order was not completed in the space labeled
"Reason for Termination" and that it had not been signed,
Collins replied that he did not know what to write down
and then, after Boston suggested that he write down the
reason that he had given Boston earlier that morning, Col-
lins left with all three work orders, returning 15 minutes
later with the work orders signed by Pallotto and with the
space "Reason for Termination" on each completed to
read "Work not satisfactory " Boston testified that he im-
mediately asserted that "This is a lie," and accused Collins
of knowing better Moraga testified that he asked why Col-
lins could not insert the truth Neither question was an-
swered Collins did not deny that the events transpired in
this manner , but testified only that he was uncertain
whether it had been in the morning or the afternoon when
he had notified the three men of their termination and de-
nied speaking directly to Moraga or to Johnson that day,
having left it to their foreman, Boston, to notify them of
their layoffs
5 This was unusual , since Collins , himself, did not like employees to re-
ceive personal calls while at the test facility
6 Respondents superintendent at the test facility who did not appear as a
witness
7 Slips which employers complete so that terminated employees can sub
mit them to the Union
D The Post-Discharge Conversations
Following the distribution of the work orders, Johnson,
Boston, and welder Marlin Whipkey testified that there
was a brief conversation between Whipkey and Collins
Whipkey testified that when he asked Collins, whom Whip-
key characterized as being quite upset at the time, what
was going on, Collins had replied that Boston, Moraga,
and Johnson had been laid off because he (Collins) had
gotten a letter from the Union which had led his wife to
call him on the job despite his prior instructions to her
never to do so unless it was important , that when he had
gotten home that evening , he had read the letter which
asked that he appear before the Executive Board and stat-
ed that he would be fined if he failed to appear , that he did
not understand why the matter could not have been taken
care of on the job without issuance of summons like this,
and, that when he had either shown or described the letter
to Denny, the latter had said , "They will be laid off at
noon " Boston, who had been standing approximately 7
feet away, waiting for transportation to the parking lot,
testified that the only portion of the conversation which he
had overheard was Whipkey's initial question, "What is
this all about, John'" and that portion of the reply in
which Collins said , "Well, I got this letter " Similarly,
Johnson testified that he had heard only Whipkey's ques-
tion inquiring what was going on and Collins' reply, "They
sent me a nasty letter" Johnson testified that he had not
heard Collins say that the discharges were caused by the
letter While he conceded that it was possible that he might
have spoken with Whipkey that day, Collins testified that
he did not recall having done so and he denied only that he
had told Whipkey that Boston, Moraga, and Johnson had
been laid off because of the letter
Everett Blevins, a welder serving as job steward on Au-
gust 15, testified that at between 10 30 and I 1 a in, Collins
had approached him at Coca 4(b) stand and had said that
he wanted to explain why Boston , Johnson, and Moraga
had been "let go " Collins , according to Blevins, then said
that he had received a letter bearing the three men's names
and directing him to appear before the Executive Board,
that the letter had "upset his wife immensely ," that Denny
had said to get rid of the three men, and "that is why I am
letting these men go " Collins denied telling Blevins that
the three men had been laid off because of the letter How-
ever , he admitted having had a conversation with Blevins
on the day of the layoffs in which he had discussed
Boston's layoff , had told Blevins about receiving the letter
from the Executive Board , and had said that he was upset
about the letter He was unable to recall whether he had
told Blevins that Denny was going to lay off Boston, al-
though he admitted that it was possible that he had done so
and that it was also possible that he had admitted to Blev-
ins that he had discussed the letter with Denny
On his normal rounds, Business Agent Smith happened
to visit the test facility on the afternoon of August 15 and
when Blevins reported that Boston, Moraga, and Johnson
had been discharged because of the Executive Board's let-
ter, the two of them went to see Collins When Smith
broached the matter, it is undenied that Collins said that he
had received the letter from the board , that his wife had
BOVEE AND CRAIL CONSTRUCTION COMPANY
become upset about it, and that when he had described the
letter to Denny, Denny had said to get rid of the three men
As the conversation progressed, Smith asked who had
made the decision and Collins replied that it had been Pal-
lotto who had signed the work order This then led the
three of them to Pallotto's trailer-office, but Pallotto, faced
with Smith's questions, suggested that they see Denny
Thus, Smith, Blevms, Collins, and Pallotto went to Denny's
office where Denny told Smith that Respondent had in-
tended to lay off all three men on the following day, that
the letter had not been the reason for their terminations,
and that they had been terminated for "unsatisfactory
work " Smith testified that Denny had confined his answer
to the generalization "unsatisfactory work," but Denny tes-
tified that he had told Smith that the terminations had
occurred because the three men had been milling around,
that their work had not been satisfactory and that both he
and Pallotto had mentioned that there had been friction on
the job, although he acknowledged that he had been "very
cautious as to what I said to Mr Smith because I wanted to
talk to Mr Grimm "
There were, in fact, conversations between Grimm and
Denny regarding the terminations, for on Saturday, August
17, during a telephone conversation, Grimm accused Re-
spondent of having effected the terminations primarily be-
cause of the letter and Denny denied this accusation, as-
serting, instead, that the matter had been occasioned by
normal attrition and shutdown on the job Grimm said
that the Union would consider the matter as settled if the
three men were reinstated, but Denny responded that he
could not do this without laying off three other workers
who would then, in turn, accuse Respondent of improprie-
ty Denny did say, however, that if work increased, Boston,
Moraga, and Johnson would be acceptable for rehire and
the telephone conversation ended with Denny promising to
send Grimm a letter on the matter-a promise which Den-
ny fulfilled that very day by sending a letter which, in part,
reads
Confirming our telephone conversation of 8/17/74
Bovee & Crail's decision to layoff Messrs R Boston,
F Johnson, and Wm Moraga was not a result of a
letter sent to our General Foreman We have been
functioning with one Steward as of August 12th and
Frank Johnson was not functioning in that capacity
when he was laid-off The Contractor's impression
was that Mr Evert Blevins was the Steward on the
jobsite and since the Fab Shop had moved to the Test
Stand area that there was no longer any reason to be
functioning with two (2) stewards
During the duration of this job there may be times
when our General Foreman will be directed to do cer-
tain things that the Union may not approve of, howev-
er, the Union must realize that the Contractor is mak-
ing the decisions and not the General Foreman The
Contractor will not direct him to do anything which is
not within the combines of the National Construction
Agreement
After receiving this letter, Grimm journeyed to the test
facility in late August where he spoke with Denny, renew-
519
mg his assertion that the terminations had not been justi-
fied since witnesses had reported that they had been moti-
vated primarily by the letter Denny again denied this and
reaffirmed his earlier explanation that the terminations had
occurred because of a reduction in force Grimm pointed
out the inconsistency of this explanation with the notation
of unsatisfactory work on the work orders and inquired if
Respondent would rehire Boston, Moraga, and Johnson,
but Denny declined on the grounds that there was no work
for them and to rehire them would mean that three others
would have to be laid off
During this conversation, Denny again expressed his
willingness to accept all three terminated individuals back
again providing the progress of the work necessitated the
hiring of additional personnel and providing the three
men's names came up on the out-of-work list Denny testi-
fied that he viewed the situation as resolved and settled
based upon his offer But, Grimm testified that the failure
of Respondent to agree to reinstatement and the inconsis-
tency of the reduction-in-force and unsatisfactory work de-
fenses led him to conclude that the matter was not resolved
and, accordingly, he contacted International Representa-
tive Stein
Meanwhile, about a week after the terminations, Whip-
key was approached by Collins who said that Boston, Mor-
aga, and Johnson had been scheduled for layoff anyway
and that Denny had been wanting to lay them off for some
time because he viewed them as troublemakers, but that he
(Collins) had stood up for them as they were good workers
whom he did not want to see laid off Then, testified Whip-
key, Collins added that he thought that Boston wanted to
be a supervisor, but that if he were to become one, he was
going to have "to be company" as he could not "be both a
supervisor and be union " Two or three weeks later, Whip-
key testified, during a discussion of the 21-6-9 heavy wall
piping, Collins commented that Boston had been sched-
uled to supervise the work of installing this piping The
matter was then dropped and not discussed further, ac-
cording to Whipkey These comments were not denied by
Collins during direct examination, although cross-exami-
nation did elicit a denial that Collins had told Whipkey
that Denny considered the three terminated individuals to
be troublemakers Cross-examination also generated the
following interchange with Collins
Q Did you ever tell Marlin Whipkey that Robert
Boston was being considered for the foreman's posi-
tion for the pipeline crew, did you ever tell Marlin
Whipkey that
A For the pipeline crew9
Q Yes
A What pipeline crew?
Q I don't know Did you ever have such a conver-
sation with Marlin Whipkey?
A I didn't have any pipeline
Q Did you ever tell Mr Marlin Whipkey after Bos-
ton was laid off, did you ever tell Marlin Whipkey that
Robert Boston was being considered for a foreman of
any type of crew at Bovee and Crail'
A He was a foreman
Q After Boston was laid offs
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Well,-
Q I am dust asking you whether or not you had this
conversation If you did not have this conversation,
say so
A I don't know what you are trying to do You are
asking something there-
Q I am just trying to ask you what your recollec-
tion is as to certain conversations with Marlin Whip-
key about Robert Boston
If you did not have any conversations, just tell the
Court you deny having such a conversation, or if you
think it is possible that you had a conversation-
A (No response)
Q Did you-you were here in the courtroom when
Mr Marlin Whipkey testified this morning, were you
not9
A I think probably the last part of it is all
Q Did you ever tell Marlin Whipkey that Robert
Boston was scheduled to take over the installation of
the heavy wall piping crew9
A That he was scheduled to take it over?
Q Scheduled to be the foreman of it'
A I know what you are talking about now
Q Okay
A He was not scheduled, but he was being consid-
ered for it Me, I was considering putting him on that
after-
JUDGE All right, Mr Collins Now, counsel's ques-
tion is, did you tell Mr Marlin Whipkey that9
MR SUNNESS That's right
JUDGE Read the statement to him again
Q (By Mr Sunness) Okay, that Robert Boston was
being scheduled to take over as foreman of the heavy
wall piping crew, did he ever make such a statement to
Marlin Whipkey7
A He has got it worded there a little differently
than what it actually was
JUDGE Well, did you or did you not tell him that,
yes or no?
THE WITNESS Not scheduled, no
Q (By Mr Sunness) Did you have-do you recall
having a conversation with Marlin Whipkey about
Robert Boston working with the crew that would be
installing the heavy wall piping9
A I do not recall talking particularly with Whipkey
on it
VI RESPONDENT'S DEFENSE
Respondent presented basically a two-level defense to
the terminations First, that due to the progress of the
work, Boston, Moraga, and Johnson were scheduled for
termination on Friday, August 16, and, second, that due to
their lack of productivity, they were terminated a day earli-
er, on August 15 In support of the first level of these de-
fenses, Respondent, based largely upon the testimony of
Project Manager Denny, contended that as bid package six
began nearing completion Respondent made an effort to
work on the test stand with a minimum number of employ-
ees who were to work longer hours This was necessitated
by the compactness of the working space on the stand
Moreover, as this work would necessitate the installation of
larger pipe, Respondent did not want to continue fabricat-
ing smaller pipe since, as Denny stated, "if we put our
small stuff in we were not going to be able to get the big
stuff in " Accordingly, Respondent commenced laying off
fabrication shop personnel in June and by the end of the
following month, had laid off a total of 52 such individuals
In selecting the employees to be laid off, testified Denny,
Respondent attempted to retain those who were capable of
working on the test stand
During the week of August 5 to 9, the fabrication shops
were consolidated and moved to a pump house at the test
stand During this same week, according to Respondent,
Denny, Collins, and Superintendents Goodwine and Pal-
lotto met and made a decision to lay off three additional
shop fabrication workers at the end of the following week
(August 15) The selections, according to Collins and Den-
ny, were made on the basis of the type of work remaining
and on the basis of the comparative skills and abilities of
the individuals considered The three selected for layoff,
according to Denny, were Boston, Johnson, and Moraga
However, at the second level of its defense, Respondent
asserts that these three individuals became unproductive
and began to null around and disturb others with the result
that Denny decided to lay them off I day earlier than ini-
tially planned
While Respondent contends that it was these factors
which led to the decision to lay off Boston, Moraga, and
Johnson on August 15, there are several factors which tend
to show that Respondent was merely taking advantage of a
coincidental reduction in its operations and attempting to
advance that reduction as a pretext to cloak its true motive
of terminating the three men because of their participation
in the Executive Board letter to Collins First, Respondent
contended that the drawings had been virtually completed
and that work on further drawings could be completed at a
later time-particularly in light of the need to avoid block-
ing installation of "big stuff" with "small stuff " Nonethe-
less, Boston, Moraga, and Johnson had been permitted to
continue working in the fabrication shop even after it had
been moved to the pump house Of course, Denny did tes-
tify that it had been Respondent's intent to permit the
three men to finish the workweek before laying them off
"We were going to be, let's say, nice guys and let it go out
through the end of the week, if they made a reasonable
effort to keep busy" Yet, it is somewhat hard to under-
stand Denny's beneficence in this regard for both he and
Collins testified that there was no policy of waiting until
the end of a workweek to effect layoffs In fact, the direct
converse appears to have been the fact, for Denny ac-
knowledged that it had not been normal policy on the job
to wait until the end of the week before laying someone
off
Like I said, at times we laid off on Tuesdays and at
times we laid off on Thursdays It was dependent on
when the work-we had a hundred and some odd peo-
ple and when this thing starts tailing down and you
are spending something like a hundred thousand dol-
lars a week, you have to take into consideration that
BOVEE AND CRAIL CONSTRUCTION COMPANY
you just cannot be a good guy all of the time and you
have to layoff and not every time it is on Friday
It is difficult to understand why Denny would decide to
change this policy and be a "good guy" with regard to
Boston, in particular, for Respondent accused Boston of
becoming so truculent in his attitude toward Collins that
work on the site had been impeded due to the "friction"
thereby generated Thus, Denny testified that a superinten-
dent had reported that Boston's promotion to general fore-
man "went to his head" and that toward the end of July,
Superintendent Goodwine had reported that Boston was
displaying an adverse attitude toward Collins, presumably,
because the latter was general foreman and the former had
been demoted recently from that position Neither Good-
wine nor any other superintendent was called to corrobo-
rate Denny in this respect nor was any explanation ad-
vanced to explain the failure to provide such evidence
Further, though Denny initially testified, "So, I started ob-
serving it myself and it just got out of hand," he was unable
to cite more than one incident to illustrate Boston's alleg-
edly adverse attitude which had resulted in friction imped-
ing work at the site The lone incident provided by Denny
to support his assertion of "friction" turned out to be
somewhat less than portrayed by him, for he testified that
Boston had asked Collins a question in a manner which he
characterized as "belligerent," but was unable to describe
what constituted the "belligerency" in Collins' attitude
and, when pressed for such a description, was unwilling to
make even an effort to describe it Interestingly, Collins
made no mention of this incident and while he did testify
that there had been a "bit of friction" between himself and
Boston, his sole illustration of this involved an early-sum-
mer event when Collins admittedly breached Respondent's
chain of command by directly asking a member of
Boston's crew if he wanted to work on a weekend Though
Collins was subsequently reprimanded by Superintendent
Pallotto for doing this, there is no evidence that the matter
remained a source of friction between Collins and Boston
There are, however, two points at which Denny disclosed
what he really meant by his use of the term "friction"
When a person thinks that he can start dictating to us
or will try to dictate to us how we are going to do
things and we are paying the bills, we are out there
trying to make the job work, it is one thing to try to
follow union rules which we did, but this was another
thing, this was a deal where decisions had to be made
And later
the whole crest [sic] of it was that we were trying
to run a job and these individuals were wanting it run
their way This was the way he [Collins] felt about it
and we were trying to run the job the way we saw fit
or the way Bovee and Crail and myself and Pallotto
saw fit
There is no evidence that Boston, Moraga, or Johnson
made any effort to interfere with the way that operations
on the job were conducted
There were a number of other points on which Denny's
testimony was either internally contradictory or was con-
521
tradicted by other evidence in the case Thus, Denny con-
tended that his reason for laying off welder Johnson was
"The qualifications on the job Johnson just learned how to
weld 21-6-9 when he went to the fab shop " But, else-
where, Denny acknowledged that "The 21-6-9, this mate-
nal, as everybody knows, it was on the job and had never
been welded before " Consequently, Johnson was not the
only employee who was a novice in working with this ma-
terial, no one else had ever worked with it
While Denny asserted that there had been complaints
from his superintendent concerning Johnson's speed, this
was not corroborated by Collins who, to the contrary, testi-
fied that when previous layoffs had been made, he had told
Pallotto that he intended to retain Boston, Johnson, and
Moraga Nor did Collins deny telling Whipkey that he had
been pleased with the work of the three discriminatees
Further, as noted above, none of the superintendents were
called as witnesses to corroborate Denny's testimony and
no explanation was advanced for failing to call them In
this connection, it is worthy of note that, like Johnson, Joe
Suza also had commenced working for Respondent only as
a black iron welder and apparently both men earned their
qualification as helharc welders while working at the Santa
Suzana site Moreover, Respondent's contention that it re-
tained Suza to work in the fabrication shop as acting fore-
man because he possessed experience working in the test
stands becomes somewhat less than persuasive as a factor
for comparison when viewed against the evidence that
Johnson had also worked in the other test stand Although
Denny testified that "two separate test stands make a lot of
difference," he never explained what difference he felt ex-
isted between the test stands at Coca 1 and Coca 4(b)
Respondent also made an effort to establish that there
was a difference between welding in the fabrication shop
and welding in the test stands However, to support this
assertion, the sole distinction recited by Denny was that
employees had to construct their own scaffolds when they
worked in the test stands Quite obviously, this is hardly a
significant distinction and, additionally, it is worth noting
that Johnson had worked on scaffolds when he had been
performing underground welding Thus, so far as the rec-
ord discloses, the only difference would be the height of the
scaffolds Respondent's attempt to establish a significant
difference was not greatly assisted by Collins who testified
that shop fabrication was easier because "we are working
on tables and probably have a few more tools and equip-
ment that we could use in the shop than you would use out
on the stand " Collins also testified "Welding in the field,
what we call a field weld, you weld right on the test stand
itself and they are usually, in my way of thinking, more
difficult to make because most of them is a position weld "
However, the significance of familiarity with field welds as
a basis for selecting employees for layoff at the test stand
was promptly nullified by Denny's testimony that "we did
not need a lot of welding down on the test stand" and "We
did not need a lot of welding, whereas on the first project
[Bid Package 2] 90 percent of the work was a lot of field
welds " Beyond this, welder Marlin Whipkey, who had not
signed the Executive Board letter and who had survived
the August 15 terminations, testified that there was "Very
little difference" between shop fabrication welding and
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field welding, since "I said if you are a hundred foot up in
the air you have a scaffold built The scaffold is substantial
and safe It has hand railings around it You are in the
same position as if you are on the ground " Accordingly,
not only is that portion of Respondent's defense which re-
lies upon the distinction in abilities required to perform
field and shop welding not supported by the record, but
Denny's testimony has the effect of obviating any consid-
eration of whatever distinction might exist
In this posture, Respondent's contention that it appoint-
ed Suza as working foreman in the fabrication shop be-
cause of his experience working in the stands makes little
sense Furthermore, Suza's appointment would have had
the tendency to cause a loss of efficiency in the fabrication
shop for, as Denny pointed out, "anytime you organize
somebody in an area you lose efficiency if you try to bring
someone else in and break them in " (Emphasis supplied)
Though this testimony was given in connection with work
in the test stands, presumably the reasoning would apply in
all other areas, including the fabrication shop, in light of
the breadth of Denny's statement In fact, the August 15
terminations were demonstrably disruptive of fabrication
shop operations Prior to that date, there were three welder
and fitter teams assigned to the shop welder Whipkey and
fitter Moraga, welder Traitanero and an unnamed appren-
tice fitter, and welder Johnson and an unnamed fitter Bos-
ton, of course, was their foreman By selecting Johnson
and Moraga for termination, two of these teams were dis-
rupted and the third team may also have been disrupted,
for following the terminations, Respondent replaced Mora-
ga with an apprentice as fitter and this may well have been
the fitter who had been working with Traitanero The situ-
ation was then compounded by the assignment of Suza,
who, so far as the record discloses, had no experience in
shop fabrication work, as the foreman By doing this, Re-
spondent took the very step that it knew would cause a loss
of efficiency-it brought in someone else who had to be
"broken in "
That efficiency was lost by the terminations was illus-
trated amply by what then happened with Whipkey After
the passage of a few days, during which Whipkey was
forced to "stop and help him [the apprentice fitter] figure
out measurements, tell him how to bevel a pipe and so on,"
Whipkey complained to Suza that production was being
impeded by the apprentice and this led to replacement of
the apprentice fitter by one Raul Sota No explanation was
provided by Respondent concerning where Sota came
from and there was no evidence that he had experience
either as a fitter or working in a fabrication shop In fact, it
appears that he had minimal experience in both areas, for
his work was described by Whipkey in the following fash-
ion "He knew nothing about it I had to stop and, in fact,
the apprentice was a better fitter in regards to that, he
knew more about it than Mr Sota " Only when Sota
stopped serving as Whipkey's fitter did Suza commence
working in this capacity Clearly this sequence of events
refutes the assertion that during the week prior to the ter-
minations a carefully planned decision was reached to lay
off Boston, Johnson, and Moraga, and to use Whipkey and
Suza in the shop If this had been the case, why wait almost
2 weeks before assigning Suza to work with Whipkey' No
explanation was advanced Respondent did contend that it
had retained the apprentice fitter who had been helping
Traitanero because it was required to maintain a certain
ratio of apprentices to journeymen However, Respondent
admitted that it had a number of apprentices on the test
stand and that it had had no difficulty with the Union in
this regard Moreover, there was no evidence that it needed
to maintain an apprentice in the shop to comply with what-
ever ratio requirements it had contracted for with the
Union Finally, at no point did Respondent explain what
happened to Traitanero If there had been the carefully
planned decision regarding the fabrication shop that Re-
spondent argues took place, what did it plan on doing with
Traitanero9 That there was no such explanation indicates
that there was no such decision and that, instead, there was
hasty action followed by an effort to conceal the true rea-
son
VII ANALYSIS
A Were the Activities of Franklin Johnson, William
Moraga, and Robert Boston in Connection with a Letter
from the Union's Executive Board Transmitted to General
Foreman John R Collins Protected by Section 7 of the Act?
The freedom of employees to engage in intraunion activ-
ity is protected from reprisal or discrimination by their em-
ployer Jacobs Transfer, Inc, 201 NLRB 210 (1973) Ac-
cordingly, participation on an executive board established
to handle intraunion problems is protected by the Act B
Respondent, however, argues that the particular letter
transmitted on August 13 in the instant matter transcended
the realm of purely internal affairs, because it was directed
to Collins, who, while a member of the Union, was also
Respondent's general foreman As the letter concerned
"ways and means of having a more harmonious job," ar-
gues Respondent, the purpose of the meeting was to con-
sider matters relating to Collins' conduct of his supervisory
responsibilities This being the case, Respondent con-
cludes, the letter represented unprotected activity, since a
labor organization may not use its power over a supervisor-
member in a fashion that has the effect of controlling per-
formance of his duties as a supervisor
Section 14(a) of the Act makes it clear that the Act does
not prohibit supervisors from joining labor organizations
See Hanna Mining Co v District 2, MEBA, 382 U S 181,
190 (1965) However, it is equally clear that such member-
ship may not be employed as a vehicle to undermine the
loyalty which supervisors owe to their employers by virtue
of their positions as members of management Beasley v
Food Fair of North Carolina, Inc, 94 S Ct 2023, 2027, 74
s I have considered the implications of the dual role performed by Fore
man Boston in this regard as both supervisor and member of the Union s
Executive Board under the principles of Nassau and Suffolk Contractors
Association Inc 218 NLRB 174 and cases following thereafter However
Respondent does not advance this as a basis for its decision to terminate
Boston on August 15 and it is clear that Boston s termination was not moti
vated by any fear on the part of Respondent that his activity might be
construed as interference with the administration of the Union in viola
tion of Section 8(a)(2) and (1) of the Act Accordingly these principles are
not relevant to the instant matter
BOVEE AND CRAIL CONSTRUCTION COMPANY
LC ¶53, 330 (1974), NLRB v Bell Aerospace Division of
Textron, Inc, 416 U S 267 (1974), Florida Power & Light
Co v International Brotherhood of Electrical Workers, Lo-
cal 641, 417 U S 790, 808 (1974), Chicago Typographical
Union No 15 (Hammond Publishers, Inc), 216 NLRB 903,
fn 12 (1975) Thus, to prevent injury to the loyalty owed
by supervisors to their employers, the Board has struck a
balance where supervisors are disciplined or threatened
with discipline by labor organizations of which they are
members Where the underlying dispute for which the su-
pervisor is disciplined or threatened with discipline is one
existing between the employer and the labor organization,
the Board has held that the discipline or threat of discipline
is unlawful See New Mexico District Council of Carpenters
(A S Horner, Inc), 177 NLRB 500, 502 (1969), enfd 454
F 2d 1116 (C A 10, 1972), Wisconsin River Valley District
Council of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Skippy Enterprises, Inc), 218 NLRB
1063 (1975) Conversely, "a union's discipline of a supervi-
sor-member falls outside the proscription of Section
8(b)(1)(B) where the offense occasioning the discipline in-
volves a matter purely of internal union administration,
unrelated, either directly or indirectly, to any dispute be-
tween the union and the employer " United Brotherhood of
Carpenters & Joiners of America, Local Union No 14, AFL-
CIO (Max M Kaplan Properties), 217 NLRB 202 (1975)
Turning to the facts of the instant matter, it appears that
it was Johnson who suggested that the August 13 letter be
sent to Collins Johnson testified that he made the sugges-
tion because while serving as a steward, he had heard of
many minor problems which could not be resolved on the
job without causing confusion and consumption of time
At first blush, this description of Johnson's motivation
would appear to support the conclusion that the matter is
one falling within the first category above-an underlying
dispute between Respondent and the Union Yet, the
Board has held that a finding of a violation does not turn
upon "a determination of the motivation behind a union's
act of discipline, but rather on a determination of the rea-
sonable effect of that discipline on the supervisor's activi-
ties as an 8(b)(1)(B) representative " Chicago Typographical
Union No 15, supra, at 3 Beyond this, other testimony
makes it clear that the "minor problems" to which Johnson
referred were not ones adverse to Respondent's position
vis-a-vis the Union
First, while the testimony was vague concerning the na-
ture of these "minor problems," it is clear that they did not
involve allegations of violations by Respondent of its col-
lective-bargaining agreement All witnesses who testified
concerning the matter agreed that, aside from complaints
common to a project of this magnitude, there were no
grievances within the meaning of that agreement against
Respondent and, so far as that agreement was involved,
there was harmony on the job Consequently, this case
does not present a situation of disputed interpretation of
the collective-bargaining agreement or of disputed applica-
tion of the terms of that agreement Cf San Francisco-Oak-
land Mailers' Union No 18, International Typographical
Union (Northwest Publications, Inc), 172 NLRB 2173
(1968), Teamsters Local No 524, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
523
America (Yakima County Beverage Company, Inc and Cha-
ney Beverage Company), 212 NLRB 908 (1974)
Second, the testimony concerning the events which tran-
spired at the August 26 executive board meeting do not
disclose any effort by Boston , Moraga, or Johnson to dic-
tate the manner in which Collins should perform his super-
visory duties Cf New Mexico District Council of Carpen-
ters, supra, United Brotherhood of Carpenters and Joiners of
America, Local Union 751, AFL-CIO (Imperial Cabinet
Shop), 204 NLRB 1102 ( 1973) The discussions , as admit-
ted by Collins, centered upon the qualifications of the per-
sonnel already dispatched to the project-a matter clearly
the responsibility of the Union There was also some dis-
cussion of the unsatisfactory fitting of pipe on the Coca
4(b) stand and of the identity of the personnel responsible
for correcting vets However , these discussions appear to
have arisen as an adjunct of the primary matter dis-
cussed-the qualifications of the personnel which the
Union had dispatched Both items do relate to the person-
nel which the Union had dispatched to the job , for poor
fits and vets could result from lack of qualification and
this, in turn , would be the Union's responsibility to correct
in view of the fact that it had selected the persons for dis-
patch This appears to have been Collins ' point when he
testified that he had told the Executive Board that "we
were the highest paid craft probably in the world and we
were expected to come out there and be able to do a decent
job in the pipe fitting industry " There is no evidence that
either topic had been the subject of a dispute between Re-
spondent and the Union Nor is there any evidence that the
Executive Board members attempted to dictate to Collins
how fitting and vets should be handled
Finally, there is no evidence that the Executive Board
made any effort to change any position which Collins
maintained to one more favorable to the Union Cf San
Francisco -Oakland Mailers ' Union No 18, supra Although
there was a discussion of the complaints regarding over-
time assignments at the project, this appears to have arisen
as merely a conversational topic, it was not an area in
which Collins had any authority or discretion , and there is
no evidence that any effort was made to persuade Collins
to adopt the Union's viewpoint on the issue Cf United
Brotherhood of Carpenters and Joiners of America, Local
Union 751, AFL-CIO (Imperial Cabinet Shop), supra In-
deed, while there is some evidence of employee complaints
concerning the overtime , there is no substantive evidence
that the Union actually disagreed with Respondent ' s meth-
od of operation regarding the overtime assignments
In these circumstances, I find that the evidence does not
support Respondent 's contention that Collins had been
summoned before the Executive Board as a means of con-
trolling his performance of his supervisory functions or be-
cause of a dispute between Respondent and the Union
Rather, I find that so far as the record discloses, the Execu-
tive Board meeting of August 26 concerned primarily a
matter of internal administration of the Union , regarding
the qualifications of the employees it had dispatched, and
was confined only to Collins' status as a member of the
union Any effect upon Respondent was merely ancillary
The evidence simply will not support any other reason for
the summons issued to Collins on August 13 Moreover,
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that Collins was threatened with discipline for non-
appearance does not alter that conclusion If the purpose
of the meeting was not one infringing upon Respondent's
relationship with the Union, then neither does the threat to
discipline Collins for failing to attend that meeting
Finally, throughout the hearing and in its brief, Respon-
dent attributed nefarious motives to Boston for his conduct
in this matter, namely, that Boston was desirous of obtain-
ing the position which Collins occupied and that Boston's
conduct was motivated by a desire to retaliate against Col-
lins for being general foreman There is, however, no evi-
dence of this, as discussed more fully below Indeed, it was
Johnson who originated the idea of sending the letter and
there is no evidence that Boston did other than vote in
favor of Johnson's position While Respondent may have
truly believed that this had been the purpose for Collins'
receipt of the August 13 letter, it has failed to establish that
this had been, in fact, the purpose Accordingly, the activi-
ty does not lose its protection merely because of
Respondent's unfounded belief Ohio Power Company, 215
NLRB 165 (1974)
Therefore, I find that the activities in connection with a
letter from the Union's Executive Board transmitted to
General Foreman John R Collins were protected by Sec-
tion 7 of the Act
B Whether Respondent, on or about August 15, Through
Collins, Told Employees that Johnson, Moraga, and Boston
Were Terminated Because They Had Engaged in Union
and/or Protected Concerted Activity, If So, Whether
Respondent Thereby Violated Section 8(a)(1) of the Act
Whipkey testified to a conversation with Collins on Au-
gust 15 during which Collins related that Denny had di-
rected him to terminate Boston, Moraga and Johnson be-
cause of the Executive Board letter Additionally, Boston
and Johnson testified to having overheard parts of this
conversation 9 That they did not overhear all of the conver-
sation between Whipkey and Collins does not negate the
corroborative effect of their testimonies Thus, Whipkey
testified, in part, that when he had asked Collins what was
going on, the latter had replied that Boston, Moraga, and
Johnson had been laid off because he had gotten a letter
from the Union which had led his wife to call him at work
and that when he had either shown the letter to Denny or
described it to Denny, Denny had issued instructions to
terminate the three co-authors of the letter employed by
Respondent While he testified that he had not heard Col-
lins say that the discharges were being occasioned by the
letter, Johnson did testify that in the portion of the conver-
sation which he had overheard, Whipkey had asked what
was going on and Collins had replied "They sent me a
nasty letter" Similarly, Boston testified that he had over-
heard Whipkey's inquiry and Collins' response "Well, I got
this letter" Clearly, Collins attributed the receipt of the
9 Contrary to Respondent 's argument in its brief I attach no significance
to the failure of Whipkey to mention Johnson as being present when he
spoke with Collins All this demonstrates is that Whipkey was unaware that
Johnson , as well as Boston , was in a position to overhear his exchange with
Collins
letter as the motivating factor which had led to the termi-
nations
Similar to the descriptions of the conversation between
Whipkey and Collins was Blevins' description of his own
conversation and of that which he overheard Smith having
with Collins that day Thus, Blevins testified that he was
approached by Collins, who said that he wanted to explain
why Boston, Moraga, and Johnson were being "let go,"
that he had received the Executive Board letter which had
upset his wife, and that Denny had directed him to termi-
nate the three discriminatees Later, in Blevins' presence,
Collins told the same thing to business agent Smith-that
he had received the letter which had upset his wife and that
when he had described the letter to Denny, the latter had
said to get rid of Boston, Moraga, and Johnson
Collins did not deny making the statement to Smith at-
tributed to him by Smith and Blevins Although he did
deny telling Whipkey and Blevins that Boston, Moraga,
and Johnson had been terminated because of the letter, he
conceded that he may have spoken with Whipkey on Au-
gust 15, but was unable to recall having done so, and, fur-
ther, he admitted having participated in a conversation
with Blevins that day during which he had discussed
Boston's layoff, had told Blevins about receiving the letter
from the Executive Board, and had said that he was upset
about the letter He admitted also that it was possible that
he had told Blevins that Denny was going to lay off Boston
and that it was also possible that he had told Blevins that
he (Collins) had discussed the Executive Board letter with
Denny
Collins was not an impressive witness He appeared to
be reluctant to answer questions in areas where answers
might be adverse to his own or to Respondent's interests
In addition, he evaded and attempted to evade answering
questions directly on a number of occasions, as best illus-
trated by the above-quoted portion of his testimony when
he was cross-examined concerning whether he had told
Whipkey that Boston had been under consideration for the
foreman's position on the pipeline crew By contrast,
Whipkey, Blevins, and Smith, as well as Boston and John-
son, answered questions put to them in a straightforward
fashion and appeared to be honest and sincere individuals
I do not credit Collins and I credit the testimonies of
Whipkey, Blevins, Smith, Boston, and Johnson that on Au-
gust 15, Collins, in three conversations, attributed the dis-
charges to the receipt of the letter In addition, I find that
at 9 a in on that same day, Collins told Boston that the
three co-signers of the letter who were employed by Re-
spondent were going to be discharged because of Denny's
hostility occasioned by the letter Such statements quite
clearly restrain and coerce employees in violation of Sec-
tion 8(a)(1) of the Act New Castle Lumber and Supply Co,
Division of Peter Kuntz Co 203 NLRB 937, fn 1 (1973),
Carolina Quality Concrete Co, 193 NLRB 463, 469, (1971)
Therefore, I find that on August 15, Respondent,
through Collins, told employees that Boston, Johnson, and
Moraga were terminated because they had engaged in the
protected activity of co-signing a letter from the Union's
Executive Board to Collins and, accordingly, that Respon-
dent thereby violated Section 8(a)(1) of the Act
BOVEE AND CRAIL CONSTRUCTION COMPANY
C Whether Respondent Violated Section 8(a)(3) and (1) of
the Act by Discharging Employees Johnson and Moraga on
August 15 and by Thereafter Failing and Refusing to
Reinstate Them
Affirmatively, there are several factors indicating that
the August 15 terminations were motivated by the protect-
ed concerted activity of co-signing the Executive Board let-
ter of August 13 which Collins received on August 14 and
described to Denny the following morning First, as found
above, Collins admitted that this was the reason for the
terminations on several occasions during the course of the
day on August 15-prior to the discharges he admitted it to
Boston and following the terminations he admitted it to
Whipkey, then to Blevins, and, finally, to Smith in Blevins'
presence As he was next in command to Denny, was a
supervisor and was admittedly privy to the reason for
Denny's decision to terminate Boston, Moraga, and John-
son, Collins' comments are clearly attributable to Respon-
dent Valley Oil Co, Inc, 210 NLRB 370 (1974), Glenroy
Construction Co, Inc, 215 NLRB 866 (1974)
Second, Collins was not the only official of Respondent
to make statements demonstrating that the true motive for
the August 15 terminations was the Executive Board letter
to Collins Denny also did so Thus, in his August 17 letter
to Business Manager Grimm, Denny first denied that the
letter to Collins had been the reason for the terminations
and then proceeded to admonish Grimm on the need for
the general foreman-Collins-to be relieved of union re-
strictions while performing his duties This, of course, is the
very thing that Respondent accuses Boston, Moraga, and
Johnson of attempting to do through the Executive Board
As there is no evidence of any other events which led Re-
spondent to level a similar accusation against the Union,
Denny could only have been referring to the August 13
Executive Board letter to Collins when he wrote these
words to Grimm Yet, if that Executive Board letter was
not the reason for the terminations, why raise the subject in
a letter discussing those terminations9 The only reasonable
explanation is that it was, in fact, the August 13 letter
which occasioned the terminations and despite his denial
of that fact, Denny wanted to be certain that the Union
understood Respondent's position on the matter This was
not, of course, the only point at which Denny's statements
embody a similar admission Twice were similar admis-
sions made during the course of Denny's testimony accus-
ing Boston initially of attempting to dictate to Respondent
how to do things even though Respondent was assertedly
following union rules and, on the second occasion, accus-
ing the three terminated individuals of attempting to "run"
the job as they wanted it run There is no evidence of any
attempt by Boston, Moraga, or Johnson to interfere with
the job In fact, the record is quite clear that they had never
voiced complaints to Respondent or filed grievances
against Respondent in connection with operations at the
Santa Suzana site Denny could only have been referring to
the August 13 letter when he made these comments Ac-
cordingly, these statements disclose that his underlying
motive for the terminations was his hostility toward Bos-
ton, Moraga, and Johnson for participating in the trans-
mittal of the Executive Board letter to Collins
525
A third factor demonstrating that the terminations re-
sulted from the August 13 letter to Collins was the abrupt-
ness of the terminations and a fourth factor is the timing of
those discharges with relation to Denny's acquisition of
knowledge concerning the letter Thus, it is conceded that
Collins learned of the letter during the day on August 14,
he read it that evening and on the following morning re-
ported its contents to Denny during a conversation when
he was told to lay off Boston, Moraga, and Johnson Al-
though Collins and Denny both denied that the termina-
tions were occasioned by Collins' report of receipt of the
letter, "[t]he abruptness of a discharge and its timing are
persuasive evidence as to motivation " NLRB v
Montgomery Ward & Co, Incorporated, 242 F 2d 497, 502
(C A 2, 1957), cert denied 355 U S 829 (1957) Moreover,
I have credited those witnesses who testified that on Au-
gust 15, Collins told them that Denny had directed him to
terminate Boston, Moraga, and Johnson because of the let-
ter
A fifth factor showing discriminatory motivation is the
high percentage of signers of the August 13 letter who were
terminated on August 15 So far as the record discloses, the
only three individuals working for Respondent who signed
the August 13 letter were Boston, Moraga, and Johnson
The only three persons terminated on August 15 were Bos-
ton, Moraga, and Johnson This high percentage of letter-
signers selected for termination is, in itself, a suspicious
circumstance Eastman Kodak Company, et al, 194 NLRB
220 (1971), Montgomery Ward & Co v NLRB, 107 F 2d
555, 559 (C A 7, 1939), F W Woolworth Company, 25
NLRB 1363, 1372-1374 (1940), enfd in pertinent part, 121
F 2d 658 (C A 2, 1941) This suspicion is only heightened
by the fact that an apprentice was retained while persons
of the caliber of Moraga and Johnson were terminated
Though Denny testified that Respondent was obliged to
maintain a certain percentage of apprentices, there is no
evidence supporting such a contention, there never was
any explanation of the percentage required, assuming that
such a requirement existed, and there were a number of
apprentices on the stand, thereby raising the question of
why it would be necessary to maintain an additional ap-
prentice in the fabrication shop
The final affirmative factor demonstrating that Respon-
dent was motivated by the letter in effecting the August 15
terminations is the shifting nature of the reasons advanced
for the terminations Having first told Boston that the ter-
minations were being effected because of the Executive
Board letter, Collins then refrained from listing this as a
reason on the work order and, pressed by Boston to put a
reason on the work order, Collins left the area of the three
terminated individuals and later returned with "Work not
satisfactory" inserted on the three work orders This partic-
ular sequence of events raises two points if, as Respondent
contends, the decision to terminate the men had been
made during the prior week and if the date of termination
was advanced because of lack of production, why was it
necessary for Collins to go elsewhere to obtain advice on
the reason to insert on the work orders, and, secondly, why
should Collins have concurred in this conclusion when he
admittedly was satisfied with the work of all three men and
within a month of the terminations admitted to Whipkey
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Boston had been scheduled to supervise the work of
installing 21-6-9 heavy wall piping prior to his termina-
tion'? Then, when Smith arrived at the project and com-
menced a dispute concerning Respondent's reason for the
terminations, Respondent abandoned the reason listed on
the work order and, for the first time, advanced the reduc-
tion-in-force defense which it has adhered to throughout
this proceeding Accordingly, to cover Collins' admission
of the real reason for the discharge, Respondent first ad-
vanced as a reason for the terminations that the work of
the three men was not satisfactory Faced, then, with a
controversy concerning this reason and apparently recog-
nizing that it might be difficult to sustain such a position,
Respondent changed direction and adopted the more de-
fensible position that the terminations were to be effected
in any event due to the declining work at the site
In fact, this final line of defense-reduction in force-
presents both gaps and inconsistencies as pointed out in
section VI, supra Thus, if, as Denny testified, continued
work on the "small stuff" risked impeding installation of
the "big stuff," why were Boston, Moraga, and Johnson
permitted to continue performing such work once the fab-
rication shop had been moved to the pump house Denny
testified that it was because Respondent wanted to be
"nice guys and let it go through the end of the week " This,
however, makes no sense in light of certain other portions
of Denny's testimony It was not uncommon for Respon-
dent to effect terminations in mid-week for, as Denny
pointed out, "you are spending something like a hundred
thousand dollars a week, you have to take into consider-
ation that youjust cannot be a good guy all of the time and
you have to lay off and not every time it is on Friday "
Indeed, mid-week layoffs were not uncommon at Respon-
dent and in this particular case, if there really was concern
about continued fabrication of the "small stuff," it hardly
makes sense to permit Boston, Moraga, and Johnson to
continue fabricating this type of material merely to be a
"good guy " In fact, in view of the intensity with which
Denny voiced his complaint that Boston had been creating
"friction," it hardly is likely that, if true, Denny would
have been so charitable as to create an exception to the
practice of terminating employees when no longer needed
without regard to the point in the workweek when this oc-
curred
The charge of causing friction at the project, leveled by
Respondent against Boston, ultimately proved to be un-
supportable Denny was unable to provide more than one
illustration of what he meant by this generalized charge
against Boston and with regard to that illustration was
unwilling to even make an effort to describe fully what had
taken place Though this incident allegedly involved Col-
lins, the latter did not corroborate Denny's testimony In-
stead, after making the same generalized charge against
Boston, Collins also listed but one example and this turned
out to be an incident where, concededly, Collins had vio-
lated Respondent's normal procedures, thereby upsetting
Boston Yet, there is no evidence that Boston thereafter
maintained an attitude of hostility toward Collins because
of this incident Beyond this, taken together, the incident
described by Denny and the incident recited by Collins
hardly support their generalized charge that Boston was
generating "friction" and thereby impeding production at
the test site It is also noteworthy that while Denny testified
to receiving reports from Superintendent Goodwine con-
cerning this "friction," at no point was Goodwine called to
corroborate Denny in this regard nor was the failure to call
him as a witness explained
Nor was the selection of Johnson and Moraga for termi-
nation as logical as Denny attempted to portray The effect
of terminating them was to break up two and possibly
three, if the apprentice fitter working with Traitanero was
the one then moved to work with Whipkey, teams This, of
course, clearly was contrary to Respondent's overall policy
of avoiding loss of efficiency by avoiding disruption of the
personnel in a given area It is not disputed that Johnson
was a novice in welding the 21-6-9 material But, so was
every other welder at the Santa Suzana site Though Denny
claimed that there had been complaints from the superin-
tendent concerning Johnson's work, no superintendent was
produced to corroborate Denny in this regard and it is not
disputed that Collins had expressed satisfaction with
Johnson's work While Johnson had never worked in the
one test stand, he had worked on the other stand and,
though Denny claimed that there was a difference between
work done on the two stands, he never explicated what he
meant by this and it is hard to understand what this differ-
ence could have been in view of the fact that both stands
were erected for testing space shuttle engines A similar
fate was suffered by Denny when he attempted to distin-
guish between shop and stand welding Obviously, the for-
mer is done on the ground and the latter on a scaffold
However, as Whipkey testified, other than the height at
which one works, there was no evidence of any substantial
difference in the welding for the two areas In fact, whatev-
er difference may have existed was rendered largely irrele-
vant by Denny's own testimony that Respondent did not
need a lot of welding on this stand
Respondent's defense of a carefully planned decision to
lay off Boston, Moraga, and Johnson and to assign Suza to
serve as working foreman in the fabrication shop was fur-
ther undermined by Whipkey's unrefuted description of
the events which followed August 15 Thus, Moraga was
replaced by an apprentice fitter whose work so impeded
Whipkey's production that he complained about the mat-
ter This then led to the assignment of Sota as Whipkey's
fitter, an assignment which generated even less productive
results Only then did Suza commence serving as
Whipkey's fitter Quite clearly this somewhat confused ef-
fort to find an adequate replacement for Moraga contra-
dicts Respondent's thesis that during the week preceding
the terminations there was a carefully planned decision as
to how the fabrication shop work should be handled after
the move to the pump house Unexplained was what hap-
pened to Traitanero and the other fitter assigned to the
fabrication shop prior to the terminations Undenied was
Whipkey's testimony that he continued performing the
same duties at the pump house following the terminations
As stated above, I found Collins to be a singularly unim-
pressive witness While making a somewhat better appear-
ance as a witness, I had reservations about Denny during
the time that he testified These reservations are borne out
by analysis of his testimony concerning Respondent's de-
BOVEE AND CRAIL CONSTRUCTION COMPANY
fense In fact, there are simply too many gaps and inconsis-
tencies in Respondent's defense to find that it is support-
able As the United States Court of Appeals for the Ninth
Circuit stated in Shattuck Denn Mining Corporation [Iron
King Branch] v NLRB , 362 F 2d 466, 470 (1966)
If he [the trier of fact] finds that the stated motive for
a discharge is false, he certainly can infer that there is
another motive More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference
I find that the motive advanced by Respondent for the
August 15 terminations is false I further find, as stated
above, that surrounding facts tend to reinforce that infer-
ence, since they show that Respondent was motivated by
the Executive Board letter to Collins when Denny made
the decision to terminate Boston, Moraga, and Johnson
What appears to have happened is that Respondent had
reduced its shop fabrication complement prior to moving
that work to the Coca 4(b) test stand When Denny was
notified of the Executive Board letter, he then directed the
terminations of the signers employed by Respondent Un-
able to persuade the Union that the terminations were for
unsatisfactory work, Respondent then attempted to cloak
its unlawful motive for the terminations by attempting to
fit them under the umbrella of its reduction in force-a
seemingly simple matter in view of the complexity of the
work and Respondent's ability to shift work between the
stand and the fabrication shop 10 Therefore, I find that Re-
spondent did discharge Moraga and Johnson for engaging
in the protected activity of participating in sending the Ex-
ecutive Board letter of August 13 to Collins As the sending
of this letter was activity protected by Section 7 of the Act,
I find that these discharges violated Section 8(a)(1) of the
Act In view of this finding, it is unnecessary to determine
whether Respondent also violated Section 8(a)(3) of the
Act in this regard See Jacobs Transfer Inc, supra at 219
Respondent further contends that it settled this matter
by telling the Union that it was willing to accept the three
individuals back as employees if, when Respondent next
sought employees, the Union were willing to dispatch
them Two points are significant in this regard First, such
an offer is, in effect, no more than an invitation to reapply
for work Such an offer does not constitute a valid offer of
reinstatement See Hydro-Dredge Accessory Co, 215
NLRB 138 (1974) Respondent was "simply offering the
employees jobs as new hires, something clearly less
than they were entitled to receive " Rushton & Mercier
Woodworking Co, Inc, 203 NLRB 123, 127, enfd 86
LRRM 2151, 75 LC ¶10, 384 (CA 1, 1974), cert denied
419 US 996 (1974) Second, under Section 10(a) of the
Act, the Board's power to prevent persons from engaging
in any unfair labor practice "shall not be affected by any
other means of adjustment or prevention that has been or
10 It may also be possible, in view of payroll clerk Ortiz testimony con
cernmg what was told to her when she received the call regarding the termi-
nations, that Denny had early formulated the defense that he would ad-
vance as a pretext but had failed to communicate it to lower supervision
thereby causing the lower-level confusion
527
may be established by agreement, law, or otherwise " Ac-
cordingly, even assuming that the Union was satisfied with
the resolution of this dispute, there is no basis on which the
Board would withhold jurisdiction in this matter (See sec-
tion III, supra) In fact, the Union was not satisfied with
Respondent's willingness to accept Boston, Moraga, and
Johnson as new hires in the event that they were dis-
patched Consequently, I find that there has been no pri-
vate adjustment of this matter
Therefore, I find that Respondent did violate Section
8(a)(1) of the Act by discharging and thereafter failing and
refusing to offer reinstatement to Franklin Johnson and
William Moraga because they engaged in the protected
concerted activity of participating in the sending of in-
traunion correspondence to another member of the Union
concerning matters of internal administration of the
Union Respondent's motion to dismiss this allegation of
the complaint is denied In view of this finding, I conclude
that it is unnecessary to reach the further question of
whether this conduct violates Section 8(a)(3) of the Act
D Whether Respondent Discharged Supervisor Boston on
August 15 and Thereafter Failed and Refused to Reinstate
Him in Order to Discourage Its Employees from Engaging
in Union and/or Protected Concerted Activities, If So, Did
Respondent Thereby Violate Section 8(a)(1) of the Act
An employer is free to discharge a supervisor because of
his membership in a labor organization Beasley v Food
Fair of North Carolina, Inc, supra However, an employer's
freedom in this regard is not unbridled for as the Court
pointed out in Florida Power & Light Co, supra, 417 U S at
808, fn 18,
It has been held that this right is limited to the ex-
tent that an employer cannot discharge supervisory
personnel for participation in the union where the dis-
charge is found to interfere with, restrain, or coerce
employees in the exercise of their protected rights, see
NLRB v Talladega Cotton Factory, Inc, 213 F 2d 209
(CA 5 1954), or where it is prompted by the supervi-
sors' refusal to engage in unlawful activity, see NLRB
v Lowe, 406 F 2d 1033 (CA6 1969)
In the instant case, as noted in footnote 9, supra, there
was no contention or evidence to support a contention that
Boston's discharge was the result of his supervisory status
and his participation in protected activities It is clear, as
shown by the discharges of Moraga and Johnson, that Bos-
ton would have been terminated regardless of his status for
participating in the transmission of the August 13 letter to
Collins Accordingly, Boston's "discharge was an integral
part of a pattern of conduct aimed at penalizing employees
" for their concerted activities and, as such, "tended to
insure the success of the plan to rid the " project of
those who were responsible for receipt of the letter by Col-
lins Key West Coca-Cola Bottling Co, 140 NLRB 1359,
1361 (1963), see also Krebs and King Toyota, Inc, 197
NLRB 462, 463, fn 4 (1972) That motive would be evident
to Johnson and Moraga who were terminated for the same
reason and at the same time as Boston Consequently, the
discharge of Boston "interfered with, restrained, and
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced rank-and-file employees in the exercise of their
[protected] rights within the meaning of Section 8(a)(1) of
the Act" Better Monkey Grip Company, 115 NLRB 1170,
1171 (1956), enfd 243 F 2d 836 (C A 5, 1957), cert denied
355 U S 864 (1957)
Therefore, I find that Respondent did discharge and
thereafter refuse to reinstate Robert Boston because of
Boston's participation in the transmission of the August 13
Executive Board letter to Collins and that the discharge
had the effect of interfering with, restraining, and coercing
employees in the exercise of their protected rights under
Section 7 of the Act, thereby violating Section 8(a)(1) of
the Act Respondent's motion to dismiss this allegation of
the complaint is denied
VIII THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the Respondent's operations described
in section II above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
Conclusions
1 Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By terminating Franklin Johnson, William Moraga,
and Robert Boston and failing to make valid offers of rein-
statement to them thereafter, and by telling employees that
the terminations had been occasioned by protected con-
certed activities within the meaning of Section 7 of the Act,
Respondent has interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act
4 It is unnecessary to reach the question of whether Re-
spondent violated Section 8(a)(3) of the Act by terminating
Johnson and Moraga
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action to effectuate the policies of the Act Regarding
the latter, Respondent will be required to offer Franklin
Johnson, William Moraga, and Robert Boston reinstate-
ment to their former positions or if those positions no lon-
ger exist, to substantially equivalent positions without prej-
udice to their seniority or other rights and privileges,
dismissing, if necessary, anyone who may have been hired
to perform the work which they had been performing prior
to the time that they were terminated August 15 Addition-
ally, Respondent will be required to make them whole for
any loss of earnings they may have suffered by reason of
their unlawful termination with backpay to be computed
on a quarterly basis, making deductions for interim earn-
ings, and with interest to be paid at the rate of 6 percent
per annum F W Woolworth Company, 90 NLRB 289
(1950), Isis Plumbing & Heating Co, 138 NLRB 716 (1962),
enforcement denied on different grounds, 322 F 2d 913
(CA 9, 1963)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By terminating and failing to offer reinstatement to
Franklin Johnson, William Moraga, and Robert Boston
and by telling employees that their terminations had been
occasioned by their protected activities, Respondent has
violated Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
5 It is unnecessary to resolve the question of whether
the discharges of Johnson and Moraga also violated Sec-
tion 8(a)(3) of the Act
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended
ORDER 11
Respondent, Bovee and Crail Construction Company,
Paramount, California, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment for engaging in concert-
ed activity protected by Section 7 of the Act
(b) Discharging or otherwise discriminating against su-
pervisors where such conduct has the effect of interfering
with, restraining, or coercing employees in the exercise of
their rights protected by Section 7 of the Act
(c) Telling employees that other employees have been
terminated because they engaged in protected activities
within the meaning of Section 7 of the Act
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Offer Franklin Johnson, William Moraga, and Rob-
ert Boston immediate and full reinstatement to their for-
mer positions of employment, dismissing, if necessary, any-
one who may have been hired or retained to perform the
work which they had been performing prior to the time
that they were terminated on August 15, 1974, or, if their
" In the event no exceptions are filed as provided by Sec 10246 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
BOVEE AND CRAIL CONSTRUCTION COMPANY
former positions no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay they may have suffered as a result of the discrimina-
tion, in the manner set forth above in the section entitled
"The Remedy "
(b) Preserve and make available to the Board or its
agents all payroll and other records necessary to compute
the backpay and reinstatement rights as set forth in "The
Remedy" section of this Decision
(c) Post at its Paramount , California , facility copies of
the attached notice marked "Appendix " 12 Copies of the
notice on forms provided by the Regional Director for Re-
gion 31 , after being duly signed by Respondent 's author-
ized representative , shall be posted by Respondent imme-
diately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, mclud-
mg all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered , defaced, or covered
by any other material
(d) Notify the Regional Director for Region 3 1, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the consolidated complaint
be, and it hereby is, dismissed insofar as it alleges a viola-
tion of Section 8 (a)(3) of the Act regarding the termina-
tions of Johnson and Moraga
12 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 Relatons Board" shall read ` Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
529
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended , gives all
employees the following rights
To organize themselves
To form , loin , or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees ' bargaining represen-
tative and employer have a collective -bargaining
agreement which imposes a lawful requirement that
employees become union members
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in activity protect-
ed by the National Labor Relations Act
WE WILL NOT discharge or otherwise discriminate
against any supervisor where such conduct has the ef-
fect of interfering with, restraining , or coercing em-
ployees in the exercise of their rights protected by Sec-
tion 7 of the Act
WE WILL NOT tell employees that other employees
have been terminated because they engaged in activi-
ties protected by the National Labor Relations Act
WE WILL NOT in any manner interfere with any of
your rights set forth above which are guaranteed by
the National Labor Relations Act
WE WILL offer Franklin Johnson, William Moraga,
and Robert Boston immediate and full reinstatement
to their former positions , dismissing, if necessary, any-
one who may have been hired or retained to perform
the work which they had been performing prior to the
time that they were terminated on August 15, 1974, or,
if their former positions no longer exist , to substantial-
ly equivalent positions , without prejudice to their se-
niority or other rights and privileges , and make them
whole for any loss of pay they may have suffered as a
result of our discrimination
BOVEE AND CRAIL CONSTRUCTION COMPANY