Brad Snodgrass, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 2003

338 N.L.R.B. 917 (N.L.R.B. 2003)

BRAD SNODGRASS, INC. 917
Brad Snodgrass, Inc. and Local Union No. 20, Sheet
Metal Workers International Association, a/w
Sheet Metal Workers International Association,
AFL–CIO. Case 25–CA–27500–1
April 9, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On March 1, 2002, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brad Snodgrass, Inc., Indian-
apolis, Indiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Joanne C. Mages, Esq., for the General Counsel.
Philip F. Snodgrass, President of Brad Snodgrass, Inc., of Indi-
anapolis, Indiana, for the Respondent.
Paul T. Berkowitz, Esq., of Chicago, Illinois, for the Charging
Party.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing these findings.
In finding that the Respondent violated the Act by threatening re-
taliation and actually retaliating against employees because the Union
filed grievances on their behalf, we find it unnecessary to rely on the
judge’s citation of BE&K Construction Co., 329 NLRB 717 (1999),
enfd. 246 F.2d 619 (6th Cir. 2001), revd. 536 U.S. 516 (2002); Dia-
mond Walnut Growers, 312 NLRB 61 (1993), enfd. 53 F.3d 1095 (9th
Cir. 1995); and Dahl Fish Co., 279 NLRB 1084, enfd. mem. 813 F.2d
1254 (D.C. Cir. 1987).
The judge, at sec. II,E, finds that the Respondent violated Sec.
8(a)(1) of the Act by sending to a union representative two letters, in
response to the Union’s filing of grievances on the employees behalf,
which threatened loss of employment for bargaining unit members
because of the representative’s protected activity. The Respondent has
neither specifically excepted to nor presented argument with respect to
those findings, and we therefore adopt them.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Fort Wayne, Indiana, on October 9 and 10, 2001. The
charge and amendments thereto were filed by Local Union No.
20, Sheet Metal Workers International Association, a/w Sheet
Metal Workers Association, AFL–CIO (Local 20 or the Union)
against Brad Snodgrass, Inc. (Respondent), resulting in a com-
plaint issuing on July 30, 2001.1 It is alleged in the complaint
that Respondent violated Section 8(a)(1) of the Act by: (a)
threatening employees with loss of jobs because the Union
raised complaints about wages; (b) informing employees that
employees were being laid off because the Union had filed
grievances under the collective-bargaining agreement; (c) in-
structing employees to request the Union to withdraw griev-
ances and complaints under the collective-bargaining agree-
ment; and (d) promising its employees recall from layoff if the
Union withdrew pending grievances. It is alleged in the com-
plaint that Respondent violated Section 8(a)(1) and (3) of the
Act by on about January 31, laying off employees Kay Smith,
Stephen Gerdom, Derrick Roe, Randy Bowman, Timothy Tan-
ner, Kerry Caba, Jack Johnston, Brent Miller, Barry Harris,
James Horstman, Joseph Grubb, Kent Engle, and Dirk Dezelan
because the Union had filed grievances under the collective-
bargaining agreement.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a contractor engaged in sheet
metal fabrication and installation with an office and place of
business in Indianapolis, Indiana, from which it annually per-
forms services valued in excess of $50,000 in states outside of
the State of Indiana. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2 Respondent admits and I find that Local 20
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Philip Snodgrass is Respondent’s president and his son, Brad
Snodgrass (B. Snodgrass), is Respondent’s vice president of
1 All dates are in 2001 unless otherwise indicated.
2 Respondent admitted that it engaged in a business generating the
amount of income in the manner set forth above in its amended answer
to the complaint. It also admitted in its amended answer that it is an
employer engaged in commerce within the meaning of Sec. 2(2) and (6)
of the Act but denied that Sec. 2(7) of the Act is applicable. However,
Respondent argues in its posthearing brief that the General Counsel has
failed to establish it is engaged in commerce. I find that Respondent,
by its admissions, generates sufficient income across state lines to
establish that it is engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act. See NLRB v. Jerry Durham Drywall, 974
F.2d 1000 (8th Cir. 1992).
338 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
operations.3 Respondent admits that Philip and B. Snodgrass
are supervisors and agents within the meaning of Section 2(11)
and (13) of the Act. The General Counsel amended the com-
plaint at the hearing to allege and Respondent denies that Su-
perintendent James Turner and Foreman Dennis Lackey are its
statutory supervisors and agents. B. Snodgrass’ responsibilities
include oversight of Respondent’s shop and field operations. In
December 2000 through May 2001, Respondent performed
work at a General Motors truck and bus plant (the GM jobsite)
in Roanoke, Indiana, located near Fort Wayne. The 13 alleged
discriminatees worked for Respondent at the GM jobsite and
their January 31 layoff is at the center of the dispute in this
proceeding. B. Snodgrass testified that he consulted with
Turner and Lackey about the layoff which was a joint decision
by those three individuals.4
A. The Alleged Supervisory Status of James Turner
and Dennis Lackey
Turner is a field superintendent and he served in that capac-
ity for Respondent at the GM jobsite. Turner reports to B.
Snodgrass. Turner, as a field superintendent, manages and has
daily contact with the foremen on field projects. Turner moves
between multiple jobsites. When at the GM site, Turner was
Respondent’s highest level official at the site. B. Snodgrass
testified that Turner has input in directing the work force at the
jobsite, along with the estimator, project manager, and the
foreman. Turner has authority to discipline employees at the
site depending on the infraction. B. Snodgrass usually follows
Turner’s recommendation concerning discipline. B. Snodgrass
testified that, within the 5 years preceding the hearing, Turner
has fired at least two employees and informed B. Snodgrass
after the fact. Turner also recommends layoffs to B. Snodgrass
and his recommendation is usually followed. Turner recom-
mended between 5 and 10 layoffs within the 5 years preceding
the hearing and his recommendations were followed except on
only a couple of occasions.
Dennis Lackey was the foreman at Respondent’s GM jobsite.
B. Snodgrass testified that Lackey, as foreman, is in charge of a
jobsite, that he directs the employees’ work, and determines
their assignments taking into consideration a customer’s needs.
However, if a customer’s plans change, Lackey contacts Re-
spondent’s office for instructions. Lackey does not have au-
thority to tell employees that they can leave early. Lackey can
verbally reprimand employees, but would have to consult with
Turner to issue more severe discipline. If an employee was
going to be absent from work they would phone Respondent’s
office. Depending on the size of his crew, which ranges from 4
to 20 employees, Lackey performs varying amounts of hands
on work. At the GM jobsite, Lackey spent half the time work-
ing with the crew, and the rest of the time he was checking on
the work of others, or pulling material for the crew. B.
Snodgrass testified that Lackey’s duties as foreman were to
ensure that the people were working, that they had materials,
that they were working safely, to review their work, and to tell

3 Brad Snodgrass is the only individual named Snodgrass who testi-
fied at the hearing.
4 Turner and Lackey were employed by Respondent at the time of
the hearing but did not testify.
them what to do. Respondent employee, James Horstman,
testified that Lackey was the main person guiding workers at
the GM jobsite and that Lackey gave Horstman his daily as-
signments.
The burden of proving that an individual is a statutory super-
visor rests with the party asserting it. See NLRB v. Kentucky
River Community Care, 532 U.S. 706 (2001). Section 2(11) of
the Act defines “supervisor” as

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

In NLRB v. Kentucky River Community Care, supra at 713,
the Court stated Section 2(11) of the Act:

sets forth a three-part test for determining supervisory status.
Employees are statutory supervisors if (1) they hold the au-
thority to engage in any 1 of the 12 listed supervisory func-
tions, (2) their “exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment,” and (3) their authority is held “in the interest of the
employer.” NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 574, 114 S.Ct. 1778, 128 L.Ed.2d
586 (1994).

I find that Turner exercises independent judgment in the lay
off and discipline of employees and that Turner is a supervisor
and agent of Respondent within the meaning of Section 2(11)
and (13) of the Act. I find that the record evidence does not
establish that Lackey is a supervisor within the meaning of
Section 2(11) of the Act. The General Counsel contends that
Lackey is a statutory supervisor because he responsibly directs
employees. However, the evidence as to Lackey’s decision
making process in according employees their assignments is
minimal and fails to demonstrate that he exercises independent
judgment. While Lackey may exercise sufficient independent
judgment to be a statutory supervisor, the General Counsel has
failed to prove this is the case in this proceeding.5
I do find that Lackey is Respondent’s agent within the mean-
ing of Section 2(13) of the Act. I find that Respondent placed
Lackey in a position where employees “could reasonably be-
lieve he spoke on behalf of management.” See United States
Service Industries, 319 NLRB 231 fn. 2 (1995), enfd. 107 F.3d
5 See Iron Workers Local 28 (Virginia Assn. of Contractors), 219
NLRB 957, 961 (1975), where a group of working foremen and a gen-
eral foreman were found not to be statutory supervisors when they
acted “within a very limited sphere in giving instructions to employees,
bounded by the blueprints and instructions from the contractor or his
supervisor.” Their authority was found to be routine not requiring the
use of independent judgment. See also Electrical Workers Local 3
(Cablevision), 312 NLRB 487, 488–489 (1993); George C. Foss Co.,
270 NLRB 232, 234–235 (1984), enfd. 752 F.2d 1407 (9th Cir. 1985);
and Ogden Allied Maintenance Corp., 306 NLRB 545, 546 (1992),
enfd. 998 F.2d 1004 (3d Cir. 1993).
BRAD SNODGRASS, INC. 919
923 (D.C. Cir. 1997). Lackey gave employees their assign-
ments on a daily basis, and was the only official on the part of
Respondent to routinely give instructions to employees. The
statements at issue here pertaining to Lackey related to his pre-
dictions as to the length of the employees’ employment at the
GM facility. The statements are related to the work assign-
ments that Lackey issued to employees. Moreover, B.
Snodgrass testified that Lackey participated in the decision to
lay off the employees on January 31, although the extent of his
participation was not documented on the record.
B. The Work at the GM Jobsite and the Layoff of the
Fort Wayne Area Employees
Local 20 is located in Indianapolis but has different contrac-
tual areas that it administers throughout the State of Indiana.
David Platt is a business representative for Local 20. It is
Platt’s responsibility to dispatch employees in Local 20’s Fort
Wayne area to their job assignments. Respondent is signatory
to the “National Maintenance Agreement” (NMA) a collective-
bargaining agreement with the Sheet Metal Workers Interna-
tional Association (the International Union). Respondent is
also signatory to the “Standard Form of Union Agreement”
(SFU Agreement) with Local 20, which pertains to counties in
the Indianapolis area. It is Platt’s view that because the Re-
spondent is signatory to the NMA and the SFU Agreement that
certain provisions of Local 20’s collective-bargaining agree-
ment with the Fort Wayne area Sheet Metal Contractors Asso-
ciation, Inc., (the Fort Wayne Agreement) apply to Respondent
when it performs work in the Fort Wayne area. Respondent
takes issue with this position.
Platt met with B. Snodgrass and Turner on December 20,
2000, for a prejob conference for the GM jobsite. Platt’s cred-
ited testimony reveals that Turner told Pratt that Respondent
was going to work two shifts at the project with 10 men per
shift and that Turner wanted to start on December 23, 2000, and
work that week up through December 31. Turner stated that
they were to work every day, except for Christmas and New
Year’s day, December 31. Turner was not sure of the duration
of the project, but stated that they wanted to complete it some-
time before June 1. Platt approved Turner’s request for Re-
spondent to bring in four employees from Indianapolis to work
on the project.
The parties stipulated at the hearing to the following: The 13
alleged discriminatees named in the complaint started working
for Respondent at the GM jobsite on either December 23 or 26,
2000, and they were laid off on January 31. Platt referred the
alleged discriminatees, who were Local 20 Fort Wayne area
members, to Respondent for work at the GM jobsite. The job
began during a GM Christmas shutdown and the employees
worked up to New Years with a day and a night shift. Follow-
ing the Christmas shutdown, Respondent’s GM jobsite employ-
ees worked alternating weekends with about half of the em-
ployees working 1 weekend on Saturday and Sunday days and
the other half working Saturday nights. The employees alter-
nated work schedules the following weekend. The credited
testimony revealed that most of the weekend second-shift work
took place on Saturdays, although there was an occasional Sun-
day evening shift.
Platt’s credited testimony reveals the following:6 GM jobsite
steward, Mike Leach, informed Platt that Respondent did not
work the employees on December 24, 2000, or on January 7.
Platt called Turner on January 9, to protest the employees’ fail-
ure to work on those dates. The issue was not resolved. On
January 9, Platt filed a grievance under the NMA through the
“National Maintenance Agreement Policy Committee”
(NMAPC). Platt faxed a copy of the grievance to Respondent
and to the International Union. The grievance asserts that no
work was performed on December 24, 2000, and on January 7,
contrary to statements made by Respondent at the prejob meet-
ing. It is asserted in the grievance that Respondent violated
NMA article XII, section 1 by failing to work on those dates. A
few days after Platt filed the grievance, B. Snodgrass called
Platt and they discussed the grievance without resolution.
On January 9, Leach informed Platt that Respondent was not
paying employees a $.25-shift differential for second-shift work
and that Respondent was failing to make a $.90-per-hour credit
union deduction from employees’ pay, the latter being a re-
quirement of the Fort Wayne Agreement. Platt faxed a copy of
a Fort Wayne area wage sheet to Respondent on January 9,
listing the credit union deduction. On January 24, Leach told
Platt that he had spoken to Lackey about the need for dust
masks on the job. Platt faxed a letter to B. Snodgrass on that
date requesting dust masks be issued on the job. Platt received
a fax from B. Snodgrass the same day stating that the masks
would be provided.
On January 26, Platt received a faxed notification from Re-
spondent that it was laying off Leach and employee Fernando
Alvarez. Platt called Turner on January 26, and Turner refused
Platt’s request to reconsider the layoff. Platt also spoke to B.
Snodgrass and asked him if he would reconsider laying off
Leach. Platt suggested that B. Snodgrass split up Leach and
Alvarez to improve their productivity rather than laying them
off. The conversation ended with B. Snodgrass stating that he
would check with Lackey. Platt filed a grievance under the
Fort Wayne Agreement on January 29 asserting that Leach was
laid off out of order citing addendum X, section 1(e). Platt
faxed a copy of the grievance to B. Snodgrass on January 29.7
Platt also filed a grievance under the NMA concerning Leach’s
layoff and he faxed Respondent a copy of the grievance. The
NMA grievance asserts that Respondent laid off Leach because
of his “Steward activities” and that the other employee was laid

6 I found Platt, taking into consideration his demeanor, to be a credi-
ble witness. Much of his testimony was corroborated by documentary
evidence or not in dispute. While Respondent Representative Philip
Snodgrass took issue with Platt’s testimony concerning the faxing to
Respondent of certain grievances under the NMA there was no specific
testimony drawn by Respondent denying the receipt of these docu-
ments. Moreover, B. Snodgrass faxed letters to Pratt and the Union
acknowledging that the Union had raised contractual claims under the
NMA. I have therefore credited Platt’s testimony as to the sequence of
events set forth in the body of this decision. In doing so, I have consid-
ered Platt’s failure to keep fax transmittal confirmations but have con-
cluded that this alone was not sufficient to discredit Platt’s testimony.
7 Philip Snodgrass asserted at the hearing that Respondent was not
signatory to this agreement and that this was an improperly filed griev-
ance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
off because he worked with Leach. The grievance cites article
VII, section 1 of the NMA.
Platt called B. Snodgrass on January 26 to discuss Respon-
dent’s failure to pay the $.25-shift differential for second-shift
work. Platt stated that under the NMA someone working sec-
ond shift is entitled to an additional $.25 per hour. B.
Snodgrass disagreed. Platt told B. Snodgrass that he would fax
him an example for shift pay as well as a bulletin substantiating
Platt’s interpretation of shift pay. B. Snodgrass stated that he
had never paid shift pay on an NMA job. On January 27, Platt
faxed a handwritten letter to Respondent’s payroll department
asserting that the employees working the second shift at the
GM jobsite should be collecting an additional $.25-shift pay
and that it was mandatory for Fort Wayne members to have
$.90 deducted from their checks and deposited into their credit
union. On January 29, Platt received a faxed response from
Dennis Joyce, who is in charge of Respondent’s payroll. The
fax acknowledged Platt’s note about shift pay, but stated that,
“[a]ccording to the contract any 10 hours on Saturday is paid at
time and one half and Sunday is paid at double time. Neither
one of these days pay a shift premium.”
On January 29, Platt called B. Snodgrass about the shift pay
but the two continued to disagree. Platt faxed Snodgrass a copy
of a bulletin concerning the NMA in support of Platt’s shift pay
interpretation. On January 29, Platt filed a grievance under the
Fort Wayne Agreement concerning shift pay. Platt faxed a
copy of the grievance to Respondent. It cites article XIV, sec-
tion 2 of the NMA and addendum VIII, section 3(d) of the “Lo-
cal agreement” and it contends that Respondent failed to pay
appropriate shift pay under the NMA and to make credit union
contributions required by the Local Agreement.8 Platt also
filed a grievance under the NMA on January 29 on the shift-pay
issue and he faxed a copy to Respondent on that date. The
grievance asserted that Respondent violated article XIV, sec-
tion 2 of the NMA by not paying the appropriate shift pay work
for work performed on the second shift.
On January 30, B. Snodgrass faxed a letter to Pratt which
reads as follows:

In Reference to your first grievance about not working
December 24th and working the following Sunday please
refer to NMA article XXIII(1).
In reply to the grievance filed on January 29, it is
without merit, read NMA article XIX(2) and NMA article
XXII(1) of the current agreement.
Regarding your request for pay greater than what the
current NMA calls for please refer to article XV(3) ‘All
work commencing with the beginning of established work
day on Saturday shall be paid at the rate of time and one-
half.’ The bulletin you supplied is outdated and does not
apply to our current contract.
If this is a problem for you, or any of your men, let me
know and we will lay off all of the Fort Wayne people.
Try me: I will make sure the men know who cost them
their jobs.

8 Philip Snodgrass admitted that Respondent received this fax.
B. Snodgrass testified that he called Respondent’s Fort
Wayne area employees on January 31, to inform them that they
were being laid off. B. Snodgrass testified that he called all of
the employees because he felt badly because the layoff was
right after Christmas and “I felt like I owed these gentlemen an
explanation.” B. Snodgrass laid off all of the employees work-
ing at the GM jobsite except for the four employees from
Indianapolis. The credited uncontradicted testimony of the
alleged discriminatees reveals that B. Snodgrass initiated the
following phone conversations with them at the time that he
informed them that they were being laid off.
B. Snodgrass told Kay Smith that he was laying her off along
with all the Fort Wayne employees, that he had a stack of
grievances on his desk, and he was tired of them. He stated that
he was pleased with Smith’s work, but he could not deal with
the grievances any more. B. Snodgrass cited the grievance for
the $.25-shift bonus and said, “I am not dealing with it and if
you could call Dave Platt and let him know, I would do
that,”. . . “to let him know he is the reason you are losing your
job.” B. Snodgrass told Smith that GM had taken the time limit
off the job and so he could man it with the four Indianapolis
men.9
B. Snodgrass told Jack Johnston that he was being laid off.
B. Snodgrass stated that “he was sorry but he had a stack of
grievances to go through and nobody would be going to work
up there until they got to the bottom of it.” B. Snodgrass told
Johnston that he should call the business agent and let him
know about it. B. Snodgrass stated that there was nothing that
he could do until the grievances were settled with the Interna-
tional. B. Snodgrass stated that they were bogus grievances
and that every time he came into the Fort Wayne work area he
had a lot of trouble trying to do the work.
B. Snodgrass told Timothy Tanner that there was a problem
at the jobsite. B. Snodgrass stated that grievances were filed
over $.25-per-hour premium pay for the night shift and that he
had no intention of paying it. B. Snodgrass told Tanner to call
Platt and discuss it with him and that if grievances or if the
problems were solved, they would be going back to work. B.
Snodgrass called Joseph Grubb and asked Grubb if he was used
to receiving the $.25-shift bonus listed in the NMA. Grubb told
him yes. B. Snodgrass stated that they did not pay it in Indian-
apolis and that by pushing for the $.25 an hour they were put-
ting their jobs in jeopardy.
B. Snodgrass called Derrick Roe and told him that he was
being laid off along with all Fort Wayne employees due to
grievances being filed against Respondent. B. Snodgrass told
Roe that if the grievances were withdrawn the employees could
possibly go back to work at GM. Brent Miller received a mes-
9 On January 28, Smith had asked Lackey if she could be laid off in
place of Leach and Alvarez. Smith made the request to avoid quitting
because she wanted to start alternative employment in February.
Lackey stated that it was not time for Smith to be laid off. The record
fails to establish that Smith had made a definite decision to leave, since
Lackey had refused her layoff request. In this regard, quitting as op-
posed to being laid off, may have had future ramifications on her refer-
ral status with the Union. I therefore find that Smith is entitled to
backpay for the full period, minus interim earnings, for the January 31
layoff which I find to be unlawful later on in this decision.
BRAD SNODGRASS, INC. 921
sage on his answering machine from B. Snodgrass stating that
the job was being stopped due to a discrepancy between Platt
and B. Snodgrass over pay. B. Snodgrass told Kerry Caba that
he was laying off the Fort Wayne area members because B.
Snodgrass had a stack of grievances filed against him. B.
Snodgrass told Dirk Dezelan that he would no longer need his
services and that “the Union has got his hands behind his back,
that he has tried to work with them on this but he said, they are
just not being reasonable.” B. Snodgrass told Dezelan to call
his business agent and tell him that he is the reason Dezelan
lost his job. B. Snodgrass told James Horstman that he did not
need the Fort Wayne sheet metal workers and that there was a
misunderstanding regarding the NMA between the Fort Wayne
Local and Respondent.10 He stated that they would call the
employees back if things were worked out. B. Snodgrass told
Randy Bowman that the reason the employees were being laid
off was that Platt was filing three to five grievances a day.
B. Snodgrass told Kent Engle that he was laying everyone in
the Fort Wayne Local off because of a dispute between himself
and Platt. During a phone call with Steve Gerdom, Gerdom
stated that he wished that B. Snodgrass could work out the
quarter an hour issue, that they could all go back to work and
find an arbitrator to help them work it out. B. Snodgrass stated
that he had performed under the NMA in Indiana and he never
had to pay premium pay. Gerdom said that there was a lot of
work to be done out there and that he wanted to go back to
work as soon as possible. B. Snodgrass stated that he was be-
ing bombard by 13 grievances on the job. B. Snodgrass stated
that he had some men in his company who would probably
finish the job, that Respondent would not need Fort Wayne
sheet metal workers, and that everyone was going to be laid off.
The 13 discriminatees named in the complaint received written
layoff notices dated February 1, with their paychecks.
On February 1, B. Snodgrass faxed Local 20 Business Man-
ager Jay Potesta a letter, which B. Snodgrass copied to Platt. It
reads in pertinent part:

I need your help to employ Fort Wayne Local 20 sheet metal
workers. Mr. Platt is unable to interpret the National Mainte-
nance Agreement and as such is causing eleven craft people to
be unemployed. I have personally spoken to these craft peo-
ple and they are desperately in need of their jobs and your
help.

In the February 1 letter, B. Snodgrass quoted from NMA article
XV(2) and article XV(3) as justification for Respondent’s re-
fusal to pay $.25-shift pay for work performed on Saturdays
and Sundays. B. Snodgrass went on to state in the letter that:

Because of the grievance filed on this issue as well as a
mountain of baseless grievances filed on this project by
David Platt we have decided per Article XXII(6) and Arti-
cle XIX(2) to suspend all Saturday evening work as well
as the employment of all Fort Wayne local 20 members
until these issues are resolved.
I, and the craftsmen of Local 20 Fort Wayne, are ask-
ing for your immediate intervention in this matter so we

10 Lackey had told Horstman, prior to the layoff, that the job might
last until the spring.
can get the men back to work. I look forward to hearing
from you one way or the other.

Platt’s credited testimony reveals that on February 6, the
premium pay grievance was resolved, during a step 3 meeting
under the NMA, when Sheet Metal Workers International Rep-
resentative David Harmes and Platt met with B. Snodgrass and
Turner. During that meeting, B. Snodgrass agreed to pay the
25 cents for the shift premium, agreed to make the $.90-per-
hour deduction for the credit union, and agreed to put the stew-
ard back to work. Platt testified that Local 20 dropped the
grievance relating to Respondent’s failure to work the men on
December 24 and on January 7. Harmes faxed B. Snodgrass a
written status report concerning these grievances on February
27.11 Harmes wrote that the shift premium pay and credit union
grievances were resolved in that Respondent agreed to pay the
$.25-per-hour second-shift pay and make the employees whole.
Respondent also agreed to make the credit union deduction.
Harmes stated that, despite its agreement to rehire Leach, Re-
spondent had not done so although it continued to work for the
Indianapolis employees. Therefore, the Union was continuing
with this grievance. Contrary to Platt’s recollection of the Feb-
ruary 6 meeting, Harmes stated that the Union was continuing
the grievance for the lost 2 days of work.
C. The Testimony of Brad Snodgrass
B. Snodgrass testified as follows: He called Turner, on
Monday, January 29, and the main topic of conversation was B.
Snodgrass’ question concerning what he could do about the
problems they were having with the Fort Wayne area Local.
Turner stated that the project was moving into a phase where
they could keep GM happy with only four employees on the job
because GM was dictating areas where Respondent could and
could not work. B. Snodgrass testified that, “[w]e collectively
made the decision to release the Fort Wayne employees and
work the four Indianapolis employees until such time equip-
ment arrived on the job where we would need to re-man up the
job.” He explained that one of the biggest portions of the work
related to exhaust fans GM ordered and Respondent had no
control over the delivery of the fans. Spiral pipe was also being
delivered to the job and there were at least two Saturdays when
expected deliveries did not show resulting in little work that
could be accomplished. Respondent was contractually obli-
gated to pay 2 hours showup pay and they wanted to avoid a
situation where they were paying people to do nothing. The
four Indianapolis employees were retained because they were
Respondent’s most productive employees and had worked on
prior projects for Respondent. B. Snodgrass testified that the
job was at a point where it could be manned by four men and
“coupled with the fact that we were having problems with the
Fort Wayne union members enabled us to work four people on
the job and lay off the Fort Wayne people.” He claimed that
Respondent would have reduced the job to four employees at
that time regardless of whether the Union filed grievances.
However, this assertion is not credible because following this
conversation with Turner, B. Snodgrass faxed the January 30
letter to Platt wherein B. Snodgrass stated Respondent’s posi-
11 Respondent admits that it received Harmes’ February 27 letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
tion on the Union’s grievances and then stated, “If this is a
problem for you, or any or your men, let me know and we will
lay off all of the Fort Wayne people. Try me: I will make sure
the men know who cost them their jobs.”
Moreover, B. Snodgrass also testified as follows:

Q. BY MR. SNODGRASS: All right. Let us go back.
What caused you to lay the employees off, Brad?
A. The problems that we were having on the job.
JUDGE FINE: What problems were that, sir?
THE WITNESS: Typically, every Monday or Tuesday
morning after a weekend’s worth of work, I would get a
series of faxes from Dave, in various forms of issues
and—
Q. BY MR. SNODGRASS: You say, Dave. That is?
A. Dave Platt.
JUDGE FINE: Were these grievances?
THE WITNESS: Well, once I got a form on the National
Maintenance Agreement form, once I got one on a form—
I have got Complaints on several different forms. I got
complaints that were not on any forms, things that needed
to be addressed.
JUDGE FINE: About the job?
THE WITNESS: Yes.
JUDGE FINE: Complaints about the work being per-
formed or the—
THE WITNESS: Either conditions, or pay, or whatever.
I called my Superintendent and I asked him—I said, you
know, what are we going to do? What is going on here?
What are we going to do here? Every time we work—

B. Snodgrass also testified that he called all of the alleged
discriminatees to inform them that they were going to be laid
off and during the call he told them that he was having a hard
time with Platt. He went on to testify:

JUDGE FINE: Did you discuss the grievances with these
employees?
THE WITNESS: I did. I do not remember every conver-
sation I had with every employee but I do and especially,
you know, after listening to a lot of these folks talk. You
know, I do remember having several conversations with
several people about problems, grievances.
JUDGE FINE: Did you tell any of them that was the rea-
son they were being laid off was because the union had
filed grievances?
THE WITNESS: I told them that we had to figure our
how we could move forward because of all the problems
that were on the job.
JUDGE FINE: Did you tell any of them that the reason
they were laid off was the union was filing grievances?
THE WITNESS: I would say, yes.

B. Snodgrass testified that the NMA was the prevailing
agreement on the job and that it was his understanding that
article IV, grievances is to be followed when the NMA is the
prevailing contract.12 B. Snodgrass testified that no grievance

12 At one point in his testimony, B. Snodgrass stated that Local 20’s
grievances were not filed under the NMA, and therefore, there were no
was filed over the January 31 layoff and it was his understand-
ing that grievance procedure is supposed to be followed.
Respondent submitted no documentation from GM for the
need to change the project prior to the January 31 layoff of the
Fort Wayne employees. Rather, B. Snodgrass testified that
Project Manager Jerry May and Turner received calls from GM
as to the status of the work. B. Snodgrass did not talk to any-
one from GM about the layoff. Both May and Turner remained
employed by Respondent at the time of the hearing, but neither
were called to testify. B. Snodgrass admitted that Respondent
continued to perform sheet metal work at the GM jobsite after
the Fort Wayne employees were laid off. B. Snodgrass men-
tioned that there was a letter from GM that Respondent re-
ceived on March 11 documenting the need to change the staff-
ing at the project. However, this letter was not entered into
evidence. B. Snodgrass testified that the letter addresses the
need to increase the work at the jobsite.
D. Positions of the Parties
The General Counsel asserts that the work at the GM jobsite
was performed under the NMA and the Fort Wayne Agreement
in that certain provisions of the NMA and of the SFU Agree-
ment, both of which Respondent is signatory, require that Re-
spondent apply the Fort Wayne Agreement when performing
work in the Fort Wayne area. It is asserted that following his
referral of Fort Wayne area employees to the jobsite, Platt initi-
ated complaints about working conditions to Respondent, as
well as filed several grievances. B. Snodgrass’ written state-
ments to union officials, statements to employees during phone
calls, admissions during his testimony, and the timing of the
layoff in relation to Platt’s grievance filing reveal that the Janu-
ary 31 layoff of the Fort Wayne area employees was caused by
the grievances. The General Counsel claims that the grievances
have arguable merit and were filed in good faith. It is con-
tended that the General Counsel has established a prima facie
case that the layoffs were unlawfully motivated. Noting that
Respondent failed to call Turner or May as a witness, or to
provide any documentary evidence supporting the need for the
layoffs it is asserted that Respondent has failed to rebut that
case. The General Counsel asserts that there is nothing in the
NMA that waives employees’ Section 7 rights regarding the
layoff.
Respondent contends, in its posthearing brief, that the NMA
was the prevailing contract pertaining to the GM jobsite. It
asserts that the Local 20’s grievances were not filed in good
faith. Respondent asserts that no threats were made to any
employees. Rather, when Respondent was asked questions by
employees those questions were answered truthfully. Respon-
dent asserts that there were no grievances filed under the NMA.
It asserts that it did not layoff employees because they formed,
joined, and assisted the Union and engaged in concerted activi-
ties, or to discourage employees from engaging in these activi-
ties since Respondent was signatory to the NMA which assured

grievances as defined in the contract. I do not credit B. Snodgrass’
testimony on this point. He filed written responses to the grievances
discussing NMA contract language, and he admitted in his testimony to
receiving at least one grievance on an NMA form.
BRAD SNODGRASS, INC. 923
that all employees on the jobsite would be represented by a
union.
Respondent asserts that the tenure and terms and conditions
of the employees at the jobsite were controlled by GM, not by
the Respondent. Respondent cites several provisions of the
NMA in support of its position and contends that it acted in
accord with the terms of the NMA concerning the grievances
and when it laid off the employees. It contends that the busi-
ness agent failed to act in the best interest of his members in
that he failed to file a grievance over the layoff under the NMA.
It asserts that the unfair labor practice charge filed by Local 20
over the layoff is a violation of the NMA and that this was an
intentional act, therefore, Respondent requests treble damages
from Local 20. It also requests that Local 20 be required to pay
the employees the amount they were told by Local 20 that they
would be paid by Respondent.
E. Analysis
In Garage Management Corp., 334 NLRB 940, 951 (2001),
the following principles were set forth concerning the protected
status of an employee’s attempt to enforce a collective-
bargaining agreement:

Pace unquestionably engaged in protected, concerted
activities by his filing charges, grievances, and through the
other activities set forth above. The filing of a charge is
protected activity. Summitville Tiles, 300 NLRB 64, 65
(1990).
In NLRB v. City Disposal Systems, 465 U.S. 822, 840
(1984), the Supreme Court endorsed the Board’s Interboro
doctrine [FN2] which recognizes that an employee‘s “hon-
est and reasonable invocation of a collectively bargained
right constitutes concerted activity, regardless of whether
the employee turns out to have been correct in his belief
that his right was violated.”
The Board has held that “it is well settled that the merit
of a complaint or grievance is irrelevant to the determina-
tion of whether an employee’s conduct is protected under
the Act, so long as the complaint was not made in bad
faith.” Wagner-Smith Co., 262 NLRB 999 fn. 2 (1982), or
with malice. Afro Urban Transportation, 220 NLRB 1371
(1975).

In Goodyear Tire & Rubber Co., 271 NLRB 343, 345 (1984), it
was stated that:

As a general rule, performance of steward functions by an
employee is a protected activity. One of the most important
steward functions is the filing of grievances. When filing and
processing grievances, stewards are protected by the Act even
if they “exceed the bounds of contract language, unless the
excess is extraordinary, obnoxious, wholly unjustified, and
departs from the res gestae of the grievance procedure.”

While Platt, Local 20’s business agent, was not Respon-
dent‘s employee, Platt directed a series of grievances and com-
plaints against Respondent on behalf of Respondent’s employ-
ees. These grievances were filed as a result of reports to Platt
from Respondent’s employee Leach, the steward at Respon-
dent’s GM jobsite. I find that Platt was engaging in protected
activity on behalf of Respondent‘s employees when as Local
20’s business agent he initiated grievances and complaints on
their behalf while he was attempting to enforce what he be-
lieved to be were the applicable collective-bargaining agree-
ments. See BE & K Construction, Co., 329 NLRB 717, 724–
725 (1999), where the Board held that a union, apart from em-
ployees, can engage in conduct protected by Section 7 of the
Act. In BE & K Construction the respondent was found to have
violated Section 8(a)(1) of the Act by filing and maintaining a
lawsuit against unions because they engaged in protected con-
certed activity.13 The fact that Respondent’s employees, aside
from Leach, may not have been aware or may not have directly
participated in Platt’s decision to file the grievances is not con-
trolling here. In Dayton Hudson Department Store Co., 324
NLRB 33, 35–36 (1997), the Board found that the respondent
there unlawfully discharged employee Ryan even though Ryan
was opposed to unionization. The Board nevertheless found
Ryan’s discharge to be unlawful because the employer dis-
charged Ryan in order to ‘“discourage’ employees from joining
the Union and from reinvigorating the moribund union cam-
paign.” I find that B. Snodgrass’ statements to union officials
Platt and Potesta and to the employees were designed to dis-
courage employees and their representatives from filing griev-
ances, an activity protected by the Act and for the reasons set
forth below that these statements violated Section 8(a)(1) of the
Act. I also find, as set forth below, that Respondent’s January
31 layoff of the 13 discriminatees was violative of Section
8(a)(1) and (3) of the Act.14
I do not find that Platt’s complaints and grievances about
working conditions were frivolous, filed to harass Respondent,
or otherwise initiated in bad faith. Platt filed the initial griev-
ance for the GM jobsite on January 9, through the NMA griev-
ance procedure asserting that Respondent violated NMA article
XII, section 1, by failing to provide work for employees on
December 24, 2000, and on January 7. That article contains a
statement that, “Procedures for prior notification of work can-
cellation shall be determined at the pre-job conference.” Platt’s
testimony is undenied that Turner informed him during the
prejob conference that Respondent would work December 23
through 31, 2000, except Christmas and New Year’s day.
Thus, Turner had informed Platt that Respondent intended to
work December 24. Platt asserts in the grievance that Turner
also agreed, during the prejob conference, to work every Satur-
day and Sunday until completion.15 By letter dated January 30,

13 See also, Diamond Walnut Growers, 312 NLRB 61 (1993), enfd.
53 F.3d 1095 (9th Cir. 1995), and Dahl Fish Co., 279 NLRB 1084,
1110–1111 (1986), enfd. mem. 813 F.2d 1254 (D.C. Cir. 1987), where
the filing of baseless civil actions against unions was found to be viola-
tive of Sec. 8(a)(1) of the Act.
14 See Summitville Tiles, 300 NLRB 64, 65 (1990), where the Board
held that when an unfair labor practice charge is filed by a union it is a
violation of Sec. 8(a)(1) and (4) of the Act for an employer to retaliate
against an employee because the employee is named in the charge. It is
similarly violative of the Act to retaliate against the employees here
because the Union filed grievances on their behalf.
15 Respondent stipulated at the hearing that, following the Christmas
shutdown, the employees were working a Saturday and Sunday work
schedule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
B. Snodgrass cited NMA article XXIII, section 1, the NMA’s
“Management Clause” to the Union in defense of this griev-
ance. This provision gives an employer certain rights with
respect to directing the work, laying off employees, and to de-
cide the number of men needed. While there is a tension in the
competing contractual provisions cited by the parties concern-
ing this grievance, I need not decide whether the Union would
ultimately prevail over Platt’s grievance. Rather, the grievance
was grounded in a contract provision cited to Respondent at the
time that the grievance was filed. There is no evidence that the
grievance was filed with malice. Accordingly, I find that the
grievance was filed in good faith.16
On January 29, Platt filed two grievances with Respondent
over the layoff of Union Steward Leach, one under the NMA
and the other under the Fort Wayne Agreement. In the NMA
grievance, Platt cited article VII, section 1, stating that, “The
[s]teward shall be the last employee to be laid off, provided he
is qualified to perform the work which remains to be done at
the job.” Additionally, article VIII, section 6 of the SFU
Agreement which Respondent is signatory to provide, in perti-
nent part, that when an employer performs work outside of an
area covered by the agreement that the employer “shall be gov-
erned by established working conditions of that local agree-
ment.” It is contended that this provision of the SFU Agree-
ment made the Fort Wayne Agreement applicable to Respon-
dent when it performed work at the GM jobsite. The provision
that Platt cited in his grievance over Leach’s layoff under the
Fort Wayne Agreement is addendum X, section 1(e). This
provision provides that the steward shall be the last man laid off
with the exception of the foreman. While Respondent has cited
contractual language in support of its position that Leach’s
layoff was proper including article XIX, section 2 which states
that the employer shall determine the competency of all em-
ployees, I am not required to resolve this contractual dispute.
Platt’s grievances were based on reasonable contractual posi-
tions, and I have concluded that these grievances were filed in
good faith.
I find that Platt’s grievances on shift pay and the credit union
deduction were filed in good faith. On January 29, Platt filed
two grievances with Respondent one under the NMA, and one
under the Fort Wayne Agreement concerning Respondent’s
failure to pay premium pay on the second shift. The grievance
under the Fort Wayne Agreement also cited Respondent’s fail-
ure to make a $.90-per-hour credit union deduction. The Gen-
eral Counsel asserts that NMA article VIII, section 1 and article
IX, section 1 require Respondent to pay the wage rates and
fund payments as set forth in the current contract of the local
union where the work is to be performed and that these provi-
sions of the NMA make the Fort Wayne Agreement applicable
to Respondent when it performs work in the Fort Wayne area.
Platt cited article XIV, section 2 of the NMA in both the NMA
and Fort Wayne Agreement grievances concerning shift pay.

16 On January 24, as a result of a complaint from the job steward,
Platt faxed a letter to Respondent requesting that the employees be
given dust masks. B. Snodgrass responded the same day that the masks
would be provided. There was no claim by Respondent that this com-
plaint was made in bad faith.
Platt, however, misstated the contract provision as he was obvi-
ously referring to NMA article XV, section 2, which states in
pertinent part that second-shift work shall be at the “employee’s
regular straight-time hourly rate plus $.25.” Additionally, in
support of these grievances, and prior to the January 31 layoff,
Platt faxed B. Snodgrass a copy of an NMAPC interpretation of
NMA article XV. The document is dated September 8, 1989,
and it states therein that “shift additives are payable on over-
time shifts performed on Saturday, Sundays, and Holidays, the
same as shifts worked during the standard work week.” Re-
spondent cited to the Union NMA article XV, section 3, which
states that, “[a]ll work commencing with the beginning of the
established work day on Saturday shall paid at the rate of time
and one-half. All work commencing with the beginning of the
established work day on Sundays . . . shall be paid at the rate
applicable in the appropriate local agreement not to exceed
double-time” in support of its position that there was to be no
shift pay for Saturday and Sunday work. However, noting that
Platt supplied Respondent with an NMAPC directive support-
ing his position it cannot be said that the grievances were frivo-
lous or otherwise filed in bad faith. In this regard, the NMA
provides that the NMAPC is a joint labor and management
committee that administers the NMA. Platt also cited adden-
dum VIII, section 3(d) of the Fort Wayne Agreement in his
grievance calling for the $.90-credit union deduction.
I find that Platt acted in good faith and was engaged in pro-
tected union activity when he filed grievances to enforce the
applicable collective-bargaining agreements on behalf of Re-
spondent’s employees based on complaints generated by the
job steward. In sum, on January 9, Platt filed a grievance over
Respondent’s failure to work employees for 2 days. On Janu-
ary 29, Platt filed two grievances over the layoff of the steward
as well as two grievances over Respondent’s failure to pay-shift
pay for Saturday and Sunday work. On January 30, B.
Snodgrass responded to Platt by letter stating Respondent’s
position on the grievances and denying their merit. B.
Snodgrass ended the letter by stating, “If this is a problem to
you, or any of your men, let me know and we will lay off all of
the Fort Wayne people. Try me: I will make sure the men
know who cost them their jobs.” Platt credibly testified that he
showed this letter to some of Respondent’s employees. Simi-
larly, on February 1, B. Snodgrass wrote union official Potesta
stating that Platt was causing Fort Wayne sheet metal workers
to be unemployed because Platt was unable to interpret the
NMA. B. Snodgrass went on to state that because of a moun-
tain of baseless grievances filed by Platt, Respondent sus-
pended Saturday evening work as well as the employment of all
Local 20 Fort Wayne members until these issues are resolved.
I find that these statements to the union officials constituted
threats of loss of employment for bargaining unit members
because of Platt’s protected grievance activity in an effort to
restrain that activity and that Respondent violated Section
8(a)(1) of the Act by issuing these letters. See BE & K Con-
struction, Co., 329 NLRB 717, 724–725 (1999); Diamond Wal-
nut Growers, 312 NLRB 61 (1993), enfd. 53 F.3d 1095 (9th
BRAD SNODGRASS, INC. 925
(9th Cir. 1995); and Dahl Fish Co., 279 NLRB 1084, 1110–
1111 (1986), enfd. mem. 813 F.2d 1254 (D.C. Cir. 1987).17
I also find that beginning on January 31, B. Snodgrass vio-
lated Section 8(a)(1) of the Act by statements he made to em-
ployees during a series of phone calls he initiated on that date.
B. Snodgrass made the following statements to employees: He
told Kay Smith that he was laying off all of the Fort Wayne
employees, that he had a stack of grievances on his desk and he
was tired of them, and that Platt was the reason she was losing
her job. He told Jack Johnston that Johnston was being laid off
and that B. Snodgrass had a stack of grievances to go through
and nobody would be going to work until he got to the bottom
of them. B. Snodgrass told Derrick Roe that he was laying off
all the Fort Wayne employees due to grievances being filed
against B. Snodgrass. B. Snodgrass told Randy Bowman that
he was being laid off because “Platt was filing 3–5 grievances a
day” and that he could not afford the Fort Wayne members
because so many grievances were being filed. The credited
testimony reveals that B. Snodgrass made similar remarks to
several other of Respondent’s employees. I find that by making
these statements B. Snodgrass coerced and restrained employ-
ees in violation of Section 8(a)(1) of the Act by informing em-
ployees that they were being laid off because the Union had
filed grievances.
Joseph Grubb’s testimony reveals that B. Snodgrass told him
that by pushing for a $.25-shift bonus the employees were put-
ting their jobs in jeopardy. B. Snodgrass made a similar state-
ment to Kay Smith in that he told her that he was not dealing
with the $.25-shift bonus grievance and that she should call
Platt to let him know he was the reason she was losing her job.
I find that these statements constitute threats to employees of
loss of jobs because the Union raised complaints about wages
and that they are violative of Section 8(a)(1) of the Act.
B. Snodgrass told Timothy Tanner that some grievances had
been filed over premium pay and that he had no intention of
paying it. He told Tanner to call Platt and that if the grievances
were resolved the employees would go back to work. B.
Snodgrass told Smith that he liked Smith’s work but that he
could not deal with the grievances anymore. He told her to call
Platt and let him know that he was the reason Smith was losing
her job. B. Snodgrass told Jack Johnston that he had a stack of
grievances to go through and that no one was going to work
until they got to the bottom of it. He told Johnston to call the
business agent and let him know about it. B. Snodgrass told
Derrick Roe if the grievances were withdrawn the employees
could possibly go back to work at GM. He also told Dirk
Dezelan that he should call his business agent to let him know
that he was the reason that Dezelan lost his job. B. Snodgrass
told James Horstman that there was a misunderstanding be-

17 The Region did not allege the remarks in these letters to be viola-
tive of the Act in the complaint. However, the content of the letters
was fully litigated and the nature of these remarks is closely related to
the unfair labor practice allegations set forth in the complaint. See
Marshall Durban Poultry Co., 310 NLRB 68 fn. 1 (1993), enfd. in
relevant part 39 F.3d 1312 (5th Cir. 1994), and Monroe Auto Equip-
ment Co., 230 NLRB 742, 751 (1977), where violations were found for
matters not specifically alleged in the complaint but that were fully
litigated.
tween Respondent and the Fort Wayne local about the NMA,
and that the Fort Wayne employees would be called back to
work if things were worked out. I find that Respondent coerced
and restrained employees in the exercise of their Section 7
rights by instructing employees to request the Union to with-
draw its grievances and promising employees that they would
be recalled to work if the Union acceded to their request. See
Pioneer Recycling Corp., 323 NLRB 652, 658 (1997).
I find that the General Counsel has established a prima facie
case under the Board’s criteria set forth in Wright Line that the
January 31 layoffs were caused by the Union’s protected activ-
ity of filing grievances.18 The record contains direct evidence
of statements made in writing and on the phone by B.
Snodgrass to Platt and to the employees before the layoffs and
to Potesta after the layoffs that the employees were laid off due
to Platt’s grievance activity. The burden shifts to Respondent
to establish that the employees would have been laid off absent
the Union’s grievance activity. Respondent has failed to meet
this burden.
Respondent’s sole witness was B. Snodgrass. He testified
that he sought counsel from Superintendent Turner about all of
the Union’s grievance filings. As a result, Turner informed him
that they had come to a point in the job where they could keep
GM happy with only four employees. He testified that since
they could man the job with four employees coupled with the
problems they were having with the Fort Wayne union caused
them to layoff the employees. However, B. Snodgrass also
testified that Respondent would have reduced the job at that
time to four employees regardless of whether the Union filed
the grievances. Taking into consideration his demeanor, I do
not credit B. Snodgrass’ testimony that Respondent would have
reduced the job on January 31, absent the Local 20’s grievance
activity, nor do I find that GM required Respondent to reduce
the job. B. Snodgrass never had direct conversations with GM
about the status of the job, and Respondent failed to call Turner
or Project Manager Jerry May to testify, although both re-
mained employed by Respondent at the time of the hearing and
they were Respondent’s contacts with GM.19 Moreover, B.
Snodgrass testified that he called the Fort Wayne area employ-
ees to inform them of the layoff because he owed them an ex-
planation. However, the only explanation that he gave them
was that they were being laid off because of Platt’s grievance
filing activities. While he told Kay Smith that GM had taken
the time limit off the job so that it could be manned by the four
Indianapolis employees, B. Snodgrass never told Smith that
GM required the layoff. Rather, B. Snodgrass told Smith to
call Platt “to let him know that he is the reason you are losing
your job.” Accordingly, I find that the General Counsel has
18 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
19 I find that an adverse inference is warranted by Respondent’s fail-
ure to call either May or Turner as a witness. See Robin Transporta-
tion, 310 NLRB 411, 417 fn. 15 (1993). Respondent also failed to
introduce any documentary evidence that GM required the job to be
reduced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
established that the discriminatees were laid off on January 31
because of the Union’s grievance filing activities.20
Ordinarily the discussion would end here and a violation of
the Act would be found. However, Respondent asserts in its
posthearing brief that Local 20 violated the NMA by filing an
unfair labor practice charge with the Board over the layoffs
rather than grieving the matter under the NMA. Respondent
seeks, in its brief, treble damages for the Union’s alleged
breach of the NMA. Respondent in essence contends that Lo-
cal 20 waived its right to file a charge with the Board over the
January 31 layoff based on language contained in the NMA.
It was stated in American Broadcasting Co., 290 NLRB 86,
88, (1988) that:

A union . . . may contractually relinquish a statutory bargain-
ing right if the relinquishment is expressed in clear and unmis-
takable terms. Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983); Clinchfield Coal Co., 275 NLRB 1384 (1985);
Timken Roller Bearing Co., 138 NLRB 15, 16 (1962). In
United Technologies Corp., 274 NLRB 504 at 507 (1985), the
Board noted with approval the following language of the
court in Chesapeake and Potomac Telephone Co. v. NLRB,
687 F.2d 633, 636 (2d Cir. 1982), enfg. 259 NLRB
225(1981):

[N]ational labor policy disfavors waivers of statutory
rights by a union and thus a union’s intention to waive a
right must be clear before a claim of waiver can succeed.
Waivers can occur in any of three ways: by express provi-
sion in the collective-bargaining agreement, by the con-
duct of the parties (including past practices, bargaining
history, and action or inaction), or by a combination of the
two. The language of a collective-bargaining agreement
will effectuate a waiver only if it is “clear and unmistak-
able” in waiving the statutory right. [Citation omitted.]

Respondent cites the following NMA provisions in its post-
hearing brief in support of its contractual waiver argument con-
cerning the January 31 layoffs. Respondent asserts that article
I—RECOGNITION, section 11 provides that the “Umpire is
not authorized to award back pay or any damages for a misas-
signment of work. Nor may any party to this procedure bring
an independent action for back pay or any other damages.”
However, article I of the NMA, when viewed in the context of
all of its provisions, was plainly meant as a vehicle to resolve
work assignment disputes between the sheet metal workers and
other labor organizations. Article I, section 2, defines the na-
ture of sheet metal work and states that when work is given to
an employer that is within the recognized jurisdiction of an-
other union with which the employer has a similar agreement
for the performance of that work, “then work assignments shall

20 I note that Turner told Platt that Respondent wanted to complete
the project sometime before June 1, during the prejob conference and
Lackey told Smith on January 28, that it was not time for her to be laid
off. Lackey also told Horstman, prior to the layoff, that the job might
last until spring. Moreover, during his phone call with Gerdom, B.
Snodgrass did not deny Gerdom’s assertion that there was a lot of work
to be done at the GM project. Rather, B. Snodgrass raised the Union’s
grievance filing as the reason for the layoff.
be made in accordance with Agreements and Decisions of Re-
cord, attested Agreements, established trade practice or prevail-
ing area practice.” Article I, section 5 provides that “there shall
be no strikes, lockouts, work stoppages, or picketing arising out
of any jurisdictional dispute.” Article 1, section 6 provides
that, “Since presently established jurisdictional dispute settle-
ment procedures are not applicable to work covered by the
Agreement, all signatory Unions and all signatory Employers
stipulate that they will abide by the following procedures for
the resolution of jurisdictional disputes.” Thereafter, article 1,
sections 6, 7, 8, 9, 10, 11, 12, 13, and 14, set out the contractual
procedure for resolving jurisdictional disputes among compet-
ing crafts. The instant case doe not involve a jurisdictional
dispute between competing craft unions, and the language Re-
spondent sites in article I, section 11 is plainly inapplicable to
the situation here where employees were laid off because their
union representative filed grievances on their behalf. I note in
passing that article 1 sets up a dispute resolution procedure for
jurisdictional disputes that is totally separate from the contracts
grievance procedure.
Respondent next cites NMA article XI—GRIEVANCES,
section 1, which states:

All grievances shall be filed within ten (10) calendar
days after the complained of event arose. Grievances shall
be appealed to the next higher step within ten (10) calen-
dar days after the meeting in the lower step. Settlement of
grievances may be arrived at in any step of the grievance
procedure which will be final and binding on the Union
and the Employer.
Grievances, other than those pertaining to jurisdiction
or general wage rates on any work covered by this Agree-
ment, shall be handled in the following manner.

Respondent also cites the following provisions from the NMA
agreement: Article XIX—HIRING AND TRANSFER OF
CRAFTWORKERS, section 2 states that the employer shall
determine the competency of all employees, the number of
workers required on the project, and shall select any employee
or employees working under the terms of this Agreement to be
laid off regardless of membership or non membership in the
Union. Article XXI—CREW SIZE, section 1 states, “The crew
size shall be any number of craftworkers and supervision re-
quired to safely perform the work and shall be increased or
decreased at the discretion of the Employer.” The General
Counsel points out that article XXIII—MANAGEMENT
CLAUSE, section 1 sets forth certain rights of an employer
under the NMA including the right to “lay off employees and
supervision because of lack of work or for other legitimate
reasons,” but that this article also states “that the Employer will
not use these rights for the purpose of discrimination against
any employee.”
In reviewing these provisions, I have concluded that, while
the January 31, layoffs may have been cognizable under the
NMA’s grievance procedure, there was no contractual require-
ment that the Union use that grievance procedure rather than
resort to the Board in cases involving allegations of discrimina-
tion for protected activities under the Act. For example, there
is no language in the NMA grievance procedure similar to that
BRAD SNODGRASS, INC. 927
in article 1, section 6 relating to jurisdictional disputes which
states that “all signatory Unions and all signatory Employers
stipulate that they will abide by the following procedures for
the resolution of jurisdictional disputes.” In other words there
is nothing in the contract which requires the parties to file a
grievance rather than resort to the Board’s processes for statu-
tory discrimination claims. I therefore conclude that the cited
contractual language pertaining to grievances fails to establish a
clear and unmistakable waiver of the Union’s access to the
Board for the vindication of the employees Section 7 rights.
See American Broadcasting Co., supra., and Ormet Aluminum
Mill Products Corp., 335 NLRB 788, 805 (2001), where it was
held that the inclusion of a specific contract provision accord-
ing to a union contractual right does not serve to constitute a
waiver of a general statutory right under the Act.
These principles are particularly apt here, where the facts re-
veal that Respondent informed virtually every discriminatee
that they were being laid off because the Union was filing
grievances and by this unlawful conduct Respondent sought to
coerce the employees to pressure the Union to withdraw those
grievances. Respondent sought to undermine the very griev-
ance procedure it now seeks to rely on as a shield from the
Union’s unfair labor practice charge. In fact, Respondent now
seeks treble damages against the Union for the Union’s failure
to file a grievance over Respondent’s unlawful layoff of its
employees when in fact it laid off those employees because the
Union had filed grievances on their behalf. Respondent’s ac-
tions here serve to underscore the animus to which it holds
employee Section 7 rights. I note that resort to an arbitrator,
whose expertise is contract interpretation not unfair labor prac-
tice litigation, would not serve to vindicate the employees Sec-
tion 7 rights here. An arbitrator cannot order the posting of a
Board notice to remedy Respondent’s repeated threats to the
Union and its employees. I find that there has been no clear
and unmistakable contract waiver of the Union’s resort to the
Board concerning the January 31 layoff, and that arbitration is
not the preferred course to resolve the statutory violations that
have occurred here.21 Accordingly, I find that Respondent
violated Section 8(a)(1) and (3) of the Act by its January 31,
layoff of Kay Smith, Stephen Gerdom, Derrick Roe, Randy
Bowman, Timothy Tanner, Kerry Caba, Jack Johnston, Brent
Miller, Barry Harris, James Horstman, Joseph Grubb, Kent
Engle, and Dirk Dezelan because the Union had filed contrac-
tual grievances on their behalf.
CONCLUSIONS OF LAW
1. Brad Snodgrass, Inc., the Respondent, is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.

21 It is not clear that a union could waive its access rights to the
Board. See West Point Pepperell, Inc., 200 NLRB 1031, 1039, (1979),
where citing NLRB v. General Motors Corp., 116 F. 2d 306, 311–312
(7th Cir. 1940), it was held that if “the Union’s contractual undertaking
were such that it prohibited in all respects the Union’s filing of the
charge with the Board, that prohibition as a matter of public policy
would not be binding on the Board, nor, it would appear, on the Un-
ion.”
2. Local Union No. 20, Sheet Metal Workers International
Association a/w Sheet Metal Workers International Associa-
tion, AFL–CIO (Local 20) is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Informing employees and their Union representatives that
employees were being laid off because Local 20 filed griev-
ances.
(b) Threatening employees with loss of jobs because Local
20 raised complaints about wages.
(c) Instructing employees to request that Local 20 withdraw
its grievances and promising employees that they would be
recalled to work if the Local 20 withdrew those grievances.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
on January 31, 2001, laying off employees Kay Smith, Stephen
Gerdom, Derrick Roe, Randy Bowman, Timothy Tanner, Kerry
Caba, Jack Johnston, Brent Miller, Barry Harris, James
Horstman, Joseph Grubb, Kent Engle, and Dirk Dezelan be-
cause Local 20 filed contractual grievances on their behalf.
REMEDY
The Respondent, having discriminatorily laid off employees,
it must make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from the January 31,
2001, layoff until the date the layoff ended, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Counsel for the General
Counsel stated at the hearing, in consultation with counsel for
Local 20, that the General Counsel was not seeking a rein-
statement remedy for the alleged discriminatees. Rather, it was
asserted that the 13 layoffs occurred on January 31, and on
March 31, Respondent requested that Local 20 refer 12 Fort
Wayne area employees to work for Respondent at the GM job-
site. Since Respondent had no control of which individuals the
Union referred, it was the position of the General Counsel and
the Charging Party that backpay for 12 of the alleged discrimi-
natees was tolled as of March 31, 2001. It was asserted that
depending on a review of Respondent’s records at the compli-
ance stage of this proceeding that backpay for the 13th dis-
criminatee may run from January 31 until Respondent’s work at
the GM jobsite ended. I agree with this position as an appro-
priate way in which to remedy this dispute, although some of
the 12 employees referred to Respondent by Local 20 on March
31, had not previously worked at the GM jobsite. I make no
finding as to how the money should specifically be divided
among the 13 discriminatees, but have concluded that this is a
matter better left for the compliance stage of this proceeding.22
22 The complaint requests that the Board order Respondent to “reim-
burse all discriminatees entitled to a monetary award in this case for
any extra federal, and/or state income taxes that would or may result
from the lump sum payment of the award.” The General Counsel’s
request would represent a change in Board law. See Paliotta General
Contractors, 333 NLRB No. 80, fn. 1 (2001) (not reported in Board
volumes), and Hendrickson Bros., 272 NLRB 438, 440 (1985), enfd.
762 F.2d 990 (2d Cir. 1985). The parties have not briefed this issue to
me, and since this a request for a change in the law, this question
should be reserved for the Board. Accordingly, I decline to grant the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
The Respondent, Brad Snodgrass, Inc., of Indianapolis, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees or their union representatives that
employees were being laid off because Local 20 filed griev-
ances.
(b) Threatening employees with loss of jobs because Local
20 raised wage complaints.
(c) Instructing employees to request that Local 20 withdraw
its grievances and promising employees that they would be
recalled to work if the Local 20 withdrew those grievances.
(d) Laying off employees because they have engaged in un-
ion or protected activities or because Local 20 has filed griev-
ances on their behalf.
In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Kay Smith, Stephen Gerdom, Derrick Roe, Randy
Bowman, Timothy Tanner, Kerry Caba, Jack Johnston, Brent
Miller, Barry Harris, James Horstman, Joseph Grubb, Kent
Engle, and Dirk Dezelan whole for any loss of earnings and
other benefits they may have suffered as a result of the unlaw-
ful discrimination against them, in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to its unlawful layoff of Kay Smith,
Stephen Gerdom, Derrick Roe, Randy Bowman, Timothy Tan-
ner, Kerry Caba, Jack Johnston, Brent Miller, Barry Harris,
James Horstman, Joseph Grubb, Kent Engle, and Dirk Dezelan,
and within 3 days thereafter, notify them in writing that this has
been done and that their layoffs will not be used against them in
any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place to be designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by Region 25, post at its fa-
cility in Indianapolis, Indiana, copies of the attached notice
marked “Appendix.”24 Copies of the notice, on forms provided

General Counsel’s request for money lost to taxes. See Paliotta Gen-
eral Contractors, supra.
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. Additionally, within 14 days
after service by the Region, Respondent shall duplicate and
mail at its own expense a copy of said notice to all employees
who were employed by Respondent at the Fort Wayne area GM
jobsite at any time since January 1, 2001, until the completion
of the employees’ work at that jobsite. The notice shall be
mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent on
or after January 1, 2001.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT inform employees or their union representa-
tives that employees are being laid off because Local No. 20,
Sheet Metal Workers International Association, a/w Sheet
Metal Workers International Association, AFL–CIO filed
grievances or raised wage complaints.
WE WILL NOT instruct employees to request Local 20 to
withdraw its grievances and promise employees that they will
be recalled to work if the Local 20 withdraws those grievances.
WE WILL NOT lay off employees because they have engaged
in union or protected activities or because Local 20 has filed
grievances on their behalf.

tional labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United Stated Court of Appeals Enforcing and Order of the Na-
tional Labor Relations Board.”
BRAD SNODGRASS, INC. 929
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make Kay Smith, Stephen Gerdom, Derrick Roe,
Randy Bowman, Timothy Tanner, Kerry Caba, Jack Johnston,
Brent Miller, Barry Harris, James Horstman, Joseph Grubb,
Kent Engle, and Dirk Dezelan whole for any loss of earnings
and other benefits they may have suffered as a result of the
unlawful discrimination against them, with interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to our unlawful layoff of
the above-named employees and within 3 days thereafter, no-
tify them in writing that this has been done and that their lay-
offs will not be used against them in any way.
BRAD SNODGRASS, INC.