Gateway Concrete Forming Services, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 154 (N.L.R.B. 1985)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gateway Concrete Forming Services, Inc. and Local
Union No. 1112, Laborers' International Union
of North America. Case 25-CA-16298
20 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 August 1984 Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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, I and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Gateway Concrete Forming Services,
Inc,, Miamitown, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph
l(b)."(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any employees in regard to their
tenure of employment, or any term or condition of
their employment, because they file grievances pur-
suant to a collective-bargaining agreement or oth-
erwise exercise the rights guaranteed employees by
Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Luther McArthur, if we have
not already done so, full and immediate reinstate-
ment to his former job or, if such job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority and other privileges, and
WE WILL make him whole for any loss of earnings
he may have suffered by reason of our unlawful
discharge of him on 2 December 1983, plus inter-
est.
WE WILL notify Luther McArthur that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
GATEWAY CONCRETE FORMING
SERVICES, INC.
DECISION
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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
the findings
We have reviewed the record and also find no merit in the Respond-
ent's claim that the judge was biased, nor do we find any evidence that
the judge prejudged the case, made prejudicial rulings, or demonstrated a
bias against the Respondent in his analysis or discussion of the evidence
2 In par. 1(b) of his recommended Order, the judge provided that the
Respondent shall cease and desist from "in any other manner" interfering
with, restraining, or coercing its employees in the exercise of the rights
guaranteed in Sec 7 of the Act However, it is the Board's policy that
such an order is warranted only when a respondent is shown to have a
proclivity to violate the Act, or has engaged in such egregious or wide-
spread misconduct as to demostrate a general disregard for the employ-
ees' fundamental rights Hickman Foods, 242 NLRB 1357 (1979) With re-
spect to the instant dispute, we find that the broad injunctive order issued
against the Respondent is not warranted Accordingly, we shall modify
the judge's recommended Order and notice
BERNARD RIEs, Administrative Law Judge. Based on
a charge filed on March 22, 1984, and a complaint issued
on May 3, 1984, and amended on June 22, 1984, a hear-
ing was held in this case in Indianapolis, Indiana, on July
9, 1984. Briefs were received from the parties on August
13, 1984. Having given due consideration to the entire
record, the briefs, and my recollection of the demeanor
of the witnesses, I make the following findings of fact,'
conclusions of law, and recommendations.
1. THE ALLEGED DISCRIMINATION AGAINST LUTHER
MCARTHUR
The principle allegations of the complaint assert that
Respondent violated Section 8(a)(3) and (1) of the Act,
(1) by assigning employee Luther McArthur to perform
"more onerous and less desirable work," and (2) by dis-
i Errors in the transcript have been noted and corrected
274 NLRB No. 32
GATEWAY CONCRETE SERVICES
charging him on December 2, 1983 The complaint fur-
ther alleges two other violations of Section 8(a)(1) based
on certain statements made to employees. The following
discussion primarily addresses the issue of whether
McArthur was discharged, in whole or part, because he
filed a grievance pursuant to a collective-bargaining
agreement If that conduct was a motivating factor, the
discharge would constitute an invasion of McArthur's
statutory rights. NLRB v. City Disposal System, 104 S.Ct
1505 (1984)
Respondent, an Ohio corporation, is engaged in the
business of constructing and then removing forms used
for the pouring of concrete at construction sites. It em-
ploys two classifications of workers, carpenters and la-
borers. Respondent recognizes Laborers Local 1112, the
Charging Party, as the collective-bargaining representa-
tive of its laborers, and also recognizes carpenters unions
as the bargaining agents of its carpenters
The building project with which we are concerned
was located at the Pendleton Reformatory in Indiana,
where Respondent worked as a subcontractor on six
buildings under construction Luther McArthur, who has
been a member of Local 1112 for 21 years, was referred
to the project to be employed by Respondent in the "last
of July" 1983. Shortly thereafter, McArthur was desig-
nated the union steward for the laborers on the job. The
number of laborers employed by Respondent on the site
varied daily according to need, ranging from two or
three to seven or so; McArthur, however, was scheduled
to work on a regular daily basis
The immediate supervisor of the laborers was Eugene
Dennis While there is a dispute over the issue of Dennis'
supervisory status, to be discussed infra, and although he
is by contract a member of the bargaining unit, he re-
ferred to himself at the hearing as the "labor foreman "
The only other responsible Gateway official on the
project was Ronald Thompson, who called himself the
"carpenter foreman," but also exercised authority over
Dennis and the laborers.
Probably on Monday, November 21, a few days before
Thanksgiving, when McArthur and one other laborer,
Gary Wheadon, were working on the job, Dennis told
them that they were going to be laid off until the follow-
ing Monday Shortly thereafter, McArthur heard that
the carpenters were going to work for the 2 days re-
maining until Thanksgiving, and that Dennis was also to
be retained for those days to perform laborer's work. On
November 22, McArthur filed a written grievance alleg-
ing violation of a specified article of the bargaining
agreement, on the theory that he, the steward, rather
than Dennis, should have been kept on the payroll
McArthur returned to work from the layoff on No-
vember 28. He testified that prior to the layoff, he had
"got along friendly" with Dennis, "no problems whatso-
ever," but beginning November 28, Dennis was "un-
friendly" and would speak to McArthur only when nec-
essary. McArthur further said that at some uncertain
time before he was discharged on December 2 (which
was the Friday following his return to work), Dennis or-
dered him to put wheels on a scaffold which weighed
300 pounds or more. He could not perform the task by
himself and eventually had to enlist the assistance of
155
three other men A slight man, McArthur testified that
he had never before been assigned to perform similar
work by himself.2
McArthur at first said that the incident to be next de-
scribed occurred on November 28, the day he returned
from layoff, but he later testified that he only "think[s]"
it was that day Dennis and Thompson, referring to a
somewhat different version of what clearly was the same
incident, put the date later in the week. I cannot be sure,
but the course of events suggests to me that Dennis and
Thompson are more likely correct on this point.
McArthur testified that on the day in question, while
he was helping they carpenters as he had been instructed
by Dennis to do, Dennis came over to him and said,
"Just because you're a union steward, you can't just
stand around like this." McArthur protested that he had
not been standing around and told Dennis that "if he
didn't like my work to get my check" Dennis just
walked away After lunch, according to McArthur,
Dennis came by "and I asked him if my work was satis-
factory and he said it was fine.3
Probably on December 1, the day before his termina-
tion, a meeting on McArthur 's grievance was held;
present were McArthur, two union representatives,
Thompson, and Dennis. The meeting was "kind of cool."
McArthur testified, although "nobody got hostile."
Dennis departed some 10 minutes after the meeting had
begun, saying that they were getting nothing accom-
plished and he was going to return to work. Dan
Welker, a seemingly credible former employee, testified
that when Dennis returned from this meeting he was "a
little bit hot "
On the following day, about 11 a.m., Dennis handed
McArthur his paycheck and said , "I'm going to let you
go " McArthur did not ask why and Dennis volunteered
no reason Thompson testified that after hearing from
Dennis of McArthur's challenge to fire him on Novem-
ber 30, he had contacted Respondent's vice president
Robert Bilz in Cincinnati, told him of the situation, and
received clearance from Bilz to let McArthur go.4
The testimony of Dennis and Thompson was to the
general effect that almost from the beginning of McArth-
ur's employment with Respondent he had proved to be a
most unsatisfactory employee and that the only reason
he had been kept on the payroll until December 2 was
his status as the union steward: according to Thompson,
he had "known other people that have tried to dismiss
stewards and it's pretty hard to do " When, however,
Dennis had seen McArthur standing around after the
November 28 recall and McArthur had taunted Dennis
to give him his check if his work was unsatisfactory,
2 This assignment is alleged to be a separate violation of the Act
9 Dennis testified that on Wednesday, November 30, he saw McArthur
"standing around" and told him that he had to "quit standing around so
much " In agreement with McArthur's testimony, Dennis recounted that
McArthur had denied the charge and finally had "hollered to me that if I
didn't like his work to get his check " Dennis was not asked about, and
therefore did not deny, McArthur's testimony that he had subsequently
told McArthur that his work was "fine "
4 Thompson testified, "I can make that decision, but I wanted to make
sure that he [Bilz] knew why I was-I wanted to do it " Bdz testified, "I
told him to do it "
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson had assertedly found the invitation to be irre-
sistible This testimonial version of the decision was con-
sistent with a December 5 memorandum addressed to the
Union. That memorandum, written by Thompson and
signed by him and Dennis, states that McArthur's work
was "not suitable enough," that he "stood around too
much," that he "missed too much work on his own,"
that he "still had to be told everything to do," and that
his defects had been tolerated only because he was the
steward.
Even if the picture painted by Dennis and Thompson
were an accurate one-that McArthur was an inept,
lazy, and undependable worker whose deficiencies had,
until December 2, been overlooked because of his union
status-there still would remain a serious question as to
the source of the courage which had suddenly enabled
the two men, 10 days after McArthur had filed his griev-
ance, to conquer their fear of getting into trouble with
the Union by firing a steward. But, on this record, it is
not easy to accept the initial (and, for Respondent, neces-
sary) premise that McArthur's work performance had
been so unsatisfactory for so long.
To begin with, while McArthur seemed to me a most
impressive witness,5 I cannot say the same about Dennis
and Thompson (although the latter seemed somewhat
more sincere than the former). In some areas their ac-
counts were contradictory and improbable and they ap-
peared to be straining, at the expense of credibility, to
supply a valid explanation of the termination of
McArthur. 8
Dennis, for example, testified that he did not partici-
pate in making the decision to let McArthur go; he "just
related" to Thompson the exchange between him and
McArthur about the latter in "standing around" and
McArthur's asking for his check, and the next morning,
with nothing further said on the matter, Thompson
"come up and told me . we was [sic] letting go
Luther." For one thing, given the information subse-
quently elicited at the hearing that Dennis and Thomp-
son were longtime friends and were sharing living quar-
ters at the time, this absence of an interim discussion
seems most unlikely For another, Dennis' partisanship
was revealed when he answered, with great firmness,
"No, none whatsoever," the question "Did the fact that
he filed a grievance have anything to do with Gateway's
decision to terminate him9" despite his previous testimo-
I I have taken into account McArthur's claim for unemployment com-
pensation which contains, at worst, an ambiguity not mentioned further
by Respondent on brief
6 This was also my impression of Robert Bilz, Respondent's vice presi-
dent, with whom Thompson had consulted by telephone before he finally
let McArthur go $dz did not normally work at the jobsite, but he would
monitor the documents and "check the payroll " He testified that by
doing so he knew that McArthur "missed more [work] than any other
laborers on the fob "
The parties had earlier stipulated, however, that there was no way to
determine McArthur's rate of absenteeism as compared to other laborers
because, while McArthur was scheduled to work every day, other labor-
ers only worked intermittently for short periods and it would not be pos-
sible, accordingly, to characterize their nonappearance on any given date
as an "absence" With such a stipulation, it is hard to perceive the basis
for Bilz' conclusion, made by "check[ing] the payroll," that McArthur
"missed more [work] than any other laborers on the fob "
ny that he had been totally removed from the decision-
making process.
Then again , given his opinion that McArthur was "one
of the poorest laborers" that he had seen working for
Respondent in his 15 years of employment there, Dennis'
testimony about his efforts to bring McArthur up to par
did not hang together very well Dennis gave an affirma-
tive answer to the question whether he had ever tried to
motivate McArthur to be concerned about his work.
When then asked to be more specific, he said, "I don't
know when, just sometime during the job." When
pressed further, Dennis replied, "I tried to explain to him
the situation." Asked to identify the "situation," Dennis
answered, "Well, the one time I can remember talking to
him" involved McArthur working slowly in conjunction
with a borrowed crane.
It would thus appear that the crane incident was pur-
portedly the only occasion during almost a 4-month
period on which Dennis had criticized or admonished
"one of the poorest laborers" that Respondent had ever
employed. That would be surprisingly lax supervision of
such a worker, it seems to me. Even accepting, for pur-
poses of argument, a contention that concern about get-
ting into trouble with the Union stayed Respondent's
hand from firing McArthur, there would not very likely
have been the same reluctance about simply criticizing
him (perhaps even in the hope of causing him to quit);
the fact that Dennis says that he did criticize him once
prior to the filing of the grievance, and again thereafter,
implies that he would feel no constraints about such
chastisement. And yet even Dennis could only summon
up one such pregrievance admonition, despite what he
characterized as a period of continuing "frustration"
with McArthur.'
Dennis was, moreover, rather volatile in his testimony
about the number of conversations he had held with
Thompson about McArthur's failings. At first, when
called as an adverse witness, he said that he had had
"many" conversations with Thompson about McArthur's
work, although McArthur had been "not too bad" when
"first" employed But by the time Respondent had re-
called Dennis to the stand, later in the day, and Dennis
was asked how often between July and December he
had told Thompson that McArthur was not up to stand-
ard, his reply was "Early in the job, probably two or
three," and thereafter, Thompson knew it himself. This
sort of inconsistency obviously does not inspire confi-
dence.
The slippery character of Dennis' testimony and his
apparent preparedness to give the kind of testimony
needed to support his cause (one aspect of the cause
being the claim that Dennis possessed no supervisory au-
thority) are further exemplified by the following passage:
Although McArthur testified in rebuttal, he did not specifically deny
Dennis' testimony about the crane incident However, he did testify
broadly in his first appearance that, prior to the grievance , he was never
"criticized in any way for anything" and that Dennis "seemed to like my
work fine " As stated above, the impression I had of McArthur was a
much more favorable one than that conveyed by Respondent's witness
GATEWAY CONCRETE SERVICES
Q. So if-in the process of making sure that the
work is done, you encounter a laborer who is slow
- have you encountered situations where the labor-
ers have been slow in not doing the work?
A Yes.
Q. And what do you do in that situation?
A I tell my boss
Q. What do you say to the laborer - you have
had this situation before, right?
A. Yes
Q So what do you do to the laborer, what do
you say to the worker?
A. I try to hurry them up.
Q. Specifically, do you recall any particular la-
borer that you have had problems with?
A. Well just the one.
Q. Who is that?
A Luther
Q So he is the only laborer that you can recall
having problems with on the Pendleton job site?
A. No. I should rephrase it. Usually we hire from
the hall, and I keep a man, and if he works good, I
keep him as long as I can. Or if he is slow, like you
said, I - as soon as there is slack work, I give him
his layoff check.
Q. But you make the judgment as to whether or
not this particular employee is a slow laborer or a
fast laborer, you make that determination?
A. I can-I don't make it and give the final deci-
sion. Can I take an example?
Q. Yeah?
A. Well, if there is a laborer I don't think is
working like I think he should, but Ron thinks he is,
well, we will keep him.
Q. So you would discuss it-discuss this particu-
lar laborer?
A Right
Q So apparently this has happened before. Ap-
parently there has been a split in the past over
whether or not a given laborer should be kept or
not kept?
A. No.
Q So this has never happened before?
A. No.
Q. Then why did you just testify that there was a
procedure-is there some written procedure for
handling this?
A. No.
Q. I don't understand-if it has never happened,
how can you say that that is what you and Ron
would do?
A. We would talk it over, but I would tell him
whether-once it comes time to get lay-to get rid
of men, I would tell him who I think should go, but
it is up to him.
Q. But you testified a little while ago-a minute
ago, that in a situation where Ron wanted someone
to go, and you wanted him to stay, you would dis-
cuss it, was that not your testimony?
A. It would if it ever came up We would discuss
it, sure.
157
Q If it ever So now you are saying that it never
came up?
A. No.
The overkill indulged in by Dennis and Thompson is
also a factor seriously adverse to their case. Thus, the
very first criticism made in their December 5 memoran-
dum to the Union was that McArthur "stood around too
much." Under questioning by me about the frequency of
such misconduct by McArthur, however, Dennis said,
"It wasn't real frequent, but he shouldn't-he did it
quite-you know, he did it some, and, you know, he
knew he shouldn't `cause he's there for eight hours of
work for eight hours of pay."
Similarly, the second reason given in the memoran-
dum-"He missed too much work on his own"-does
not really fit the facts as known to Dennis and Thomp-
son. McArthur testified that he was absent from work 9-
1/2 days during his 4-month employment, due to a death
in the family and a serious accident involving his son.8
At the hearing, when Dennis was asked by his counsel if
McArthur had missed "too much work for whatever
reason," he replied, "Yes, for legitimate reasons, but- "
Obviously, Dennis understood that McArthur's absences
were beyond his control; it is suspicious embroidery to
indicate, as the memorandum does, that McArthur was
somehow to blame for absences known to be caused by
uncontrollable forces.
Finally, the reliability of the testimony of Thompson
was, I thought, marred by his response to an old, but
sometimes effective, coutroom strategem. Counsel for
the General Counsel asked Dennis whether he had dis-
cussed his proposed testimony with anyone. Dennis re-
plied that he had talked with Respondent's counsel and
"I have got together with Ron before on some of the
event [sic] that went on" To pin this down, counsel
asked, and Dennis answered, as follows:
Q All right. I'll put it this way: Apparently,
before today , you had a discussion with Ron
Thompson in the not too distant past-Yesterday,
day before, a couple of days ago-you and he talked
about the fact that you were going to come down
here to a hearing . Is that right?
A. Yes
Dennis then went on to agree that they had discussed
the McArthur case to "refresh [their] memory about
things that had happened concerning the hearing today "
He later said that they spoke in order to "try and get our
memories jogged back to certain events."
When the same question was put to Thompson, the
next witness, he answered, "No, sir" to the question,
"Did you - have you discussed recently the events re-
lating to Mr. McArthur with anybody except [Respond-
ent's counsel]," and, in answer to a probing question, af-
firmed that he was "sure about that." But then, when
pressed specifically as to any such possible discussions
s Bilz testified that the records showed an absence of 13 days, in rebut-
tal, McArthur said that the other 3-1/2 days were "rain-out" days when
none of the employees could work
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Dennis, Thompson replied, "A long time ago,
maybe," going on to guess, "A month, two months
Something like that, maybe."
It seems most likely to me that when Dennis acqui-
esced in the question as to whether he had not in the
.,not too distant" past-"yesterday, day before, a couple
of days ago"-talked to Thompson about the case, he
fully comprehended the question. For Thompson to
thereafter first evade the same question and then put the
tardily-admitted discussion at some time in the realm of a
month or two in the pasts plainly casts doubt upon
Thompson's veracity In addition, while Dennis was will-
ing to agree that the purpose of the discussion was to
"refresh .. . memory," Thompson resisted this analysis,
at first saying it was "not to refresh memories," but then
conceding that it was "more or less" in "preparation for
this hearing."
In short, for the reasons given above, I find it very dif-
ficult to accept the testimony of Dennis and Thompson
that McArthur had been an unsatisfactory employee
whose job had been hanging by the thread of his stew-
ardship, a thread which he himself severed by inviting
Dennis to release him. I think it more probable that
McArthur was regarded as a competent employee whose
work, as he testified, Respondent seemed to like "fine,"
and that it was only after the grievance was filed on No-
vember 22 that Respondent became unhappy with
McArthur's execution of his duties 10 In so concluding, I
have taken into account my personal impression of
McArthur, his own sense of how the job and his rela-
tionship with Dennis had been going, and the apparent
fact that (there is no evidence to the contrary) he had
worked successfully as a laborer for 21 years or more."
9 In later testimony , he accepted a proposed time of the discussion as
"about two months ago "
10 I was also impressed by the demeanor of employee Welker, a labor-
er for 12 years, who characterized McArthur as a "fine worker " Al-
though Welker only worked for Respondent during McArthur 's final
week of employment , and was not with him "constantly ," it seems to me
quite possible to gain a quick and accurate impression of a laborer's com-
petence and industriousness
11 I have not considered , however, the testimony of former employee
Wheadon that just before McArthur 's discharge Dennis had told him that
he could "make it hard on Luther if he had to, to make him quit " As the
transcript shows, Wheadon was, to use his own word, "confused" about
this conversation, and his testimony does not scan very well I had an
impression that there may have been some basis in truth to Wheadon's
testimony , and that his "confusion" might be attributable to natural limi-
tations rather than to mendacity , but overall I believe that it would not
be appropriate to give credence to Wheadon 's testimony on this point
Accordingly , I further recommend dismissal of the 8(a)(l) allegation
based on such testimony
I have, on the other hand , given consideration to the testimony of
Wheadon , elicited on cross-examination , that Dennis told him "around
December 1, 1983, that he was going to let Luther McArthur go because
"he was standing around too much and couldn 't do the work " No con-
text was given for this statement It would not supnse me, however, if
Dennis had attempted to offer to other employees reasons of a legitimate
nature for terminating McArthur The same sort of comment applies to
some textually ambiguous testimony by Welker, which could have re-
ferred to an effort made by Dennis either to explain to Welker the No-
vember 21 layoff or the discharge of McArthur-"And he said the
reason why they laid Luther off was because he couldn't-he didn't
know enough about the job to keep the carpenters and everything
going."
Indeed, even if I were to accept Respondent's claim
that it had stifled a desire to terminate McArthur until
early December, when he told Dennis to let him go if his
work was thought to be unsatisfactory, I would find it
most difficult to believe that the operative cause of Re-
spondent's change of attitude was not in fact the filing of
the grievance. If we assume, as Dennis and Thompson
ask us to, that they were willing to tolerate for so long a
time "one of the poorest laborers" Respondent had ever
employed because of some shadowy and undocumented
threat arising from his position as steward over a handful
of laborers, it is hard to conceive that these cowardly
lions found new heart in the simple fact that McArthur
had angrily told Dennis that he should discharge him if
his work was not acceptable. McArthur was at that point
no less a steward than he had ever been, and his termina-
tion represented no less of a potential threat of being
"hassle[d]" (Thompson's word) by the Union. Yet at the
end of November, Dennis and Thompson suddenly
found themselves capable of taking a stance which they
had allegedly not dared previously. In my view, the
most probable distinguishing factor would have been
McArthur's filing of his gnevance on November 22.1 2
In order to prevail in a case such as this one, the Gen-
eral Counsel must establish that protected Section 7 ac-
tivity was a "motivating factor" in the decision to dis-
charge. NLRB Y. Transportation Management Corp., 462
U.S. 393 (1983). According to Section 10(c) of the Act,
the ultimate conclusion that an unfair labor practice was
committed must be proved by a "preponderance of the
testimony taken." That requirement is not an onerous
one; the Court of Appeals for the Sixth Circuit had de-
fined the "preponderance" test to mean "more likely so
than not so." Jim Causley Pontiac v. NLRB, 675 F 2d
125, 127 (6th Cir. 1982).
Having hefted all the evidence, I think it "more likely
so than not so" that McArthur's discharge was prompted
by his filing of the grievance. McArthur struck me as
most believable; Dennis and Thompson, for the reasons
given, less so. The fact that an employer's witnesses offer
doubtful, inconsistent, and otherwise seemingly un-
trustworthy testimony properly raises an adverse infer-
ence about the legitimacy of their motivation. NLRB v.
Griggs Equipment, 307 F.2d 275, 278 (3d Cir 1962). The
timing of the discharge-4 months after McArthur's em-
ployment began, but only 10 days after the grievance
was filed-is a plainly suspicious feature. Equally doubt-
ful is the claim that Respondent's job-like willingness to
suffer intolerable workmanship for fear of union retalia-
tion was abruptly dissipated by nothing more than
McArthur's angry retort on November 30. McArthur's
credited testimony that Dennis began his admonition on
November 30 by referring to the fact that McArthur was
12 At the hearing , Dennis stated that he was not "upset or mad or
nothing" about the grievance, but he did think it was a "kind of stupid"
thing for McArthur to do
The claim made at hearing and again on brief that "Gateway treated
the statement as a request from McArthur for a layoff" scarcely bears
discussion Respondent certainly knew that McArthur did want to work
and did not want to be fired, indeed, the call to Bilz for approval speaks
volumes So does the December 5 memorandum, which begins "I let the
Labor Steward go" because of described deficiencies
GATEWAY CONCRETE SERVICES
a "union steward" clearly indicates that the grievance
was very much on Dennis' mind, and that McArthur had
not exactly ingratiated himself with Dennis by grieving
the layoff. While Respondent brought out at hearing that
no grievances had ever been filed against it in the past,
the almost immediate discharge of the first employee
who did take such action does not seem to render that
fact particularly helpful to Respondent.
Thus, a survey of the whole record, and my impres-
sion of the witnesses, lead me to conclude that the prin-
cipal moving cause of the termination of McArthur was
his filing of the grievance. Even if I were to find that
this was a so-called "dual motive" case, rather than a so-
called "pretext" case, see Limestone Apparel Corp., 255
NLRB 722 (1981), and accordingly allow Respondent
the opportunity to demonstrate that it would have dis-
charged McArthur even despite his protective activity, I
would reach no different result.
Grieving pursuant to a collective-bargaining agree-
ment is considered protected concerted activity "[a]s
long as the grievance is based on an honest and reasona-
ble belief that a right has been violated," NLRB v. City
Disposal Systems, 104 S.Ct. 1505, 1516 (1984). There is no
reason to find that the foregoing condition was not satis-
fied here, and on brief, in noting City Disposal Systems,
Respondent does not argue otherwise.13
I therefore conclude that the General Counsel has es-
tablished, by a preponderance of the evidence, that the
protected activity of grieving was a "motivating factor"
in the decision to terminate, NLRB v. Transportation
Management Corp., supra, 462 U.S. 393 (1983), that the
evidence does not demonstrate that the decision would
have been made in the absence of such activity; and that
Respondent violated Section 8(a)(3) and (1) by discharg-
ing Luther McArthur on December 2, 1983.
I would not find, however, that Respondent violated
the Act, as the complaint alleges, by deliberately assign-
ing more onerous work to McArthur. This asserted vio-
lation was not very well developed on the record, but it
is hard to imagine that Dennis seriously intended to have
McArthur perform by himself a piece of work which ul-
timately required the point efforts of four men. There is
no testimony that Dennis made any attempt to interfere
with McArthur's solicitation of the assistance of the
other employees or indicated to McArthur that he
should not seek such help. I shall therefore recommend
the dismissal of this allegation.
The only allegation not yet considered states that on
or about December 1, Dennis "threatened to discharge
employees because they filed grievances against the Re-
spondent." I assume that this claim may be based on
Wheadon's testimony, although I can find nothing so
specific therein. Since, as indicated, Wheadon's testimony
displays an inherent weakness, I would not rely on it for
' Sec, 4 of art XVI (steward) of the bargaining agreement states, in
pertinent part, "In the event of a general lay-off by the Employer for any
reason, the Steward shall be the first employee recalled, unless the Em-
ployer needs an employee who possesses specific skills that a Steward
cannot perform " It was not unreasonable for McArthur to view the No-
vember 21 layoff of laborers as a "general layoff' with the retention of
Dennis as a "recall" to which McArthur was contractually entitled
159
any such finding even if the evidence were more explic-
it.14
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. By discharging Luther McArthur on December 2,
1983, Respondent violated Section 8(a)(3) and (1) of the
Act.
3. The foregoing unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Luther McArthur on December 3, 1983, I shall recom-
mend that Respondent be required to offer him immedi-
ate and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal
to that which he normally would have earned from the
aforesaid date of his termination to the date of Respond-
ent's offer of reinstatement, less net earnings during such
period The backpay provided herein shall be computed
on a basis of calendar quarters in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in Isis Plumbing Co., 138 NLRB 716 (1962),
and Florida Steel Corp., 231 NLRB 651 (1977).
I shall also recommend posting of the traditional no-
tices and other customary relief.
14 In view of these conclusions, I need not reach the issues raised by
Respondent's answer regarding whether Dennis was a "supervisor" or an
"agent" of Respondent for purposes of Sec 8(a)(1) In the interest of
completeness, however, I note that Dennis should very probably be con-
sidered at least an agent (and perhaps a supervisor)
Dennis testified that at the start of each day, he would "tell the men to
go where, to do what," and would thereafter "direct [the] work" of the
laborers Sometimes this involved moving from one work location to
others When he independently perceived that additional laborers were
needed, Dennis would order them from the hiring hall, without prior ap-
proval from Thompson, and the new employees would report to him
Dennis notified the employees of layoffs He participated in the grievance
meeting concerning the November 21 layoff of McArthur, and he testi-
fied that he believed he was present because he was the "labor foreman "
Together with Thompson, he signed, as "Labor Foreman," the explana-
tory memorandum to the Union regarding McArthur's layoff, which
states, inter alga, that McArthur's "work performance was not suitable for
my Labor Foreman or myself" Dennis earned $3 per hour more than the
rank-and-file laborers
While "Labor Foremen" were, according to the bargaining agreement,
included in the bargaining unit and were also explicitly denied the "au-
thority to hire or discharge," and while the evidence shows that Dennis
performed manual labor, it nonetheless clearly appears that Dennis was at
least held out by Respondent as an agent whose statements might well be
attributed to Respondent Helena Laboratories Corp v NLRB, 557 F 2d
1183, 1187 (5th Cir 1977) RAHCO Inc, 265 NLRB 235, 248 (1982), B-P
Custom Building Products, 251 NLRB 1337, 1338 (1980)
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
The Respondent, Gateway Concrete Forming Serv-
ices, Inc, Miamitown , Ohio, its officers , agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in regard to their tenure of employment, or
other terms and conditions of employment , because they
file grievances pursuant to a collective -bargaining agree-
ment or otherwise exercise the rights guaranteed employ-
ees by Section 7 of the Act.
(b) In any other manner interfering with , restraining,
or coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer Luther McArthur, immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position , without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Miamitown , Ohio facility copies of the
attached notice marked "Appendix." 16 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by Respondent's authorized
representative , shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to are customarily posted . Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered , defaced , or covered by any other material.
(d) Remove from its files any reference to the unlaw-
ful discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
15 If no exceptions are filed as provided by Sec 102 46 of the Board 's 16 If this Order is enforced by a Judgment of a United States Court of
Rules and Regulations , the findings , conclusions , and recommended Appeals, the words in the notice reading "Posted by Order of the Na-
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
Board and all objections to them shall be deemed waived for all pur - of the United States Court of Appeals Enforcing an Order of the Nation-
poses al Labor Relations Board "