Grunau Co.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1302 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grunau Company, Inc. and Tim Chaney. Case 9-
CA-17963-1
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 September 1983 Administrative Law
Judge Robert M. Schwarzbart issued the attached
decision. The General Counsel filed exceptions and
a supporting brief, and Respondent filed a brief in
answer to the General Counsel.
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
In adopting the finding that the 4 February 1982 walkout in protest
of Supervisor Peck's discharge was not protected by the Act, Chairman
Dotson and Member Hunter find it unnecessary to reach the judge's dis-
cussion of Puerto Rican Food Products Corp., 242 NLRB 899 (1979), enf.
denied in relevant part 619 F.2d 153 (lst Cir. 1980), or whether said dis-
charge was subject to arbitration. Member Zimmerman also finds it un-
necessary to reach the question of whether the decision was subject to
arbitration because he finds that under any view of the applicable law,
Peck's supervisory position did not have a sufficiently direct impact on
employees' working conditions to bring the employee protests within the
protections of the Act.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: This case was heard in Cincinnati, Ohio, on June
2 and 3, 1983, pursuant to charges' filed by Tim Chaney,
an individual, and complaint issued September 8, 1982.2
The complaint alleges that Grunau Company, Inc.,
herein the Respondent, violated Section 8(a)(1) of the
National Labor Relations Act, herein the Act, by dis-
charging Chaney and Gary Peck for protesting insubor-
dinately the Respondent's earlier discharge of Richard
Peck, who then had been both a supervisor for the Re-
spondent and president of Local Union No. 113 of the
United Association of Journeymen and Apprentices of
the Plumbers and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, herein the Union. The
Union is the duly recognized bargaining representative of
I The original and amended charges were filed on February 5 and 8,
1982, respectively.
2 All dates hereinafter are within 1982 unless otherwise specified.
268 NLRB No. 194
certain of the Respondent's employees, including Chaney
and Gary Peck, who is the son of Richard Peck. The
Respondent, in its answer, denies the commission of
unfair labor practices.3
Issues
Whether the Respondent violated Section 8(a)(l1) of
the Act by discharging Tim Chaney and Gary Peck, its
employees, for instigating and/or participating in an em-
ployee walkout to protest the termination of Supervisor-
Union President Richard Peck during the term of and
contrary to collective-bargaining agreement containing a
"no strike-no lock out" provision.
Subsidiary issues include whether the contractual
grievance-arbitration procedure was applicable to Rich-
ard Peck's supervisory discharge and, if not, whether the
no-strike clause constituted a waiver by the employees of
the right to stop work to protest a supervisory termina-
tion that was not subject to challenge under the contract.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs, filed by the
General Counsel and the Respondent, have been careful-
ly considered.
On the entire record of this case 4 and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation with an
office and place of business in Trenton, Ohio, has been
engaged as a mechanical contractor in the building and
construction industry, constructing industrial facilities in
the State of Ohio.
During the calendar year ending December 31, 1981, a
representative period, the Respondent, in the course and
conduct of its operations purchased and received at its
Trenton facility products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of Ohio.
The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
s Citing Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd. sub nom.
Automobile Salesmen's Union Local 1095 v. NLRB, 711 F.2d 383 (D.C.
Cir. 1983), the General Counsel does not contend that the discharge of
Richard Peck was unlawful. In Parker-Robb Chevrolet, supra, the Board
held that the "discharge of supervisors is unlawful when it interferes with
the right of employees to exercise their rights under Section 7 of the Act,
as when they give testimony adverse to their employer's interest or when
they refuse to commit unfair labor practices. The discharge of supervisors
as a result of their participation in union or concerted activity-either by
themselves or when allied with rank-and-file employees-is not unlawful
for the . . . reason that employees, but not supervisors, have rights pro-
tected by the Act."
4 By Order, dated February 24, 1983, the Board denied the Respond-
ent's Motion for Summary Judgment, which had been opposed by the
General Counsel, and directed that the matter be heard.
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GRUNAU CO.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, based in Milwaukee, Wisconsin, is
one of the largest mechanical contracting concerns in
this country. It operates only union jobs. Since 1980, the
Respondent has been engaged in the construction of a
brewery for the Miller Brewing Company in Trenton,
Ohio. The overall cost of the new brewery is approxi-
mately $300 million, of which around $50 million has
been allocated to the Respondent's work. The Respond-
ent's onsite responsibilities for this project include install-
ing all the mechanical systems, the heating, ventilating,
and air conditioning, and all piping for the brewing proc-
ess, including the water and the waste water treatment
facilities. In February, when the events herein occurred,
Mike Foley was the Respondent's project manager at the
Trenton site and Ted Angelo was project superintendent
and second in command to Foley.
In performing its contract, the Respondent employed
approximately a peak level of 400 employees of whom
about 300 were plumbers and pipefitters. Of these 300,
around one-third were members of the Union, Local 113,
and the remainder were travelers, members of its sister
locals within the United Association.
The Respondent and the Union are subscribers to and
are bound by the Project Agreement, a collective-bar-
gaining agreement executed by and between Gilbane
Building Company and the Butler County Building and
Construction Trades Council and the signatory Interna-
tional Unions and/or Local Unions," effective December
25, 1979, to continue in effect for the duration of the
construction of the brewery project.
Article IV of the Project Agreement provides that
there shall be no strikes, work stoppages, or lockouts
during the contract term, while Article VI sets forth the
grievance-arbitration procedure. These articles, in rele-
vant part, are as follows:
ARTICLE IV:
WORK STOPPAGES AND LOCKOUTS
4.1 There shall be no strikes, picketing, slowdowns,
refusals to work, walk-offs, sitdowns, mass absentee-
ism, sympathy strikes, honoring of picket lines (es-
tablished by any Union, or by any other person or
persons whether parties to this Agreement or other-
wise) or other forms of work stoppage, or threats of
any kind to engage in such conduct by the officers,
members, or employees of any Union, or by em-
ployees represented by any Union at the Project
site. The Union shall not permit, encourage, or con-
done any such conduct, and shall take all affirma-
I Gilbane is the general contractor on the Miller Brewing Company,
Trenton, Ohio project. The agreement also was signed by Plumbers &
Pipefitters Local Union No. 108, which later merged with its sister Local
Union No. 510 to form Local No. 113, the Union herein.
tive, positive steps through their international repre-
sentatives to obtain compliance with this Article.
Employees violating this provision are subject to
discharge.
4.2 The Union also agrees that if any Union or any
other person or persons, whether parties to this
Agreement or otherwise, engage in any picketing or
work stoppage, the other Unions and employees
shall consider such picketing or work stoppage to
be illegal and shall refuse to honor any such picket
line or work stoppage. Failure of any employee to
cross any picket line is a violation of this Agree-
ment.
4.3 The Union agreed to be responsible for the con-
duct of the employees it represents and agrees to
use its best efforts to remedy any actions in viola-
tion of this Article engaged in by any employees
employed by the Employer or its subcontractors on
the Project. The Union shall not be liable under this
Article unless it has received telegraphic notifica-
tion of such violation at its business office and has
failed to attempt in good faith to remedy such vio-
lation within twenty-four (24) hours of receipt of
such notification.
4.4 There shall be no lockout or threats thereof by
the Employer.
4.5 The Union shall have the right to withhold
services from any Employer who becomes delin-
quent in the payment of proper wages, fringe bene-
fit contributions, and deductions including lawfully
authorized dues checkoffs. However, prior to strik-
ing, the Union will give ten (10) days written notice
by registered or certified mail, return receipt re-
quested, or five (5) working days notice by tele-
gram to the involved Employer and the Owner.
Representatives of the parties to the dispute will
meet within the appropriate period to attempt to re-
solve the dispute. A return receipt following a mail-
ing by registered or certified mail shall be conclu-
sive proof of the date of receipt by a Union of
Health and Welfare and Pension payments by a
Subcontractor.
4.6 Nothing in this Agreement shall be construed to
limit or restrict the right of the Union or the Em-
ployer to fully pursue any and all remedies available
under law in the event of a violation of this Article.
This Article is applicable pending the arbitration of
grievances in accordance with Article VI.
Article VI, Grievance Procedure, section 6.1, pro-
vides, "There shall be no lock out, or strike, or cessation
or slow down (of) work due to grievances arising during
the life of this agreement." This provision made refer-
ence to article V of the Project Agreement which pro-
vides for the resolution of jurisdictional disputes without
work stoppages of any kind, and also specific procedures
for dealing with disputes or grievances involving the
general contractor, a subcontractor, or matters of con-
tract interpretation. Section 6.2 of the agreement sets
forth a three-step grievance procedure, culminating, at
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fourth step, in binding arbitration. Step 4 provides
that:
The arbitrator shall have the authority to make de-
cisions on issues presented to him concerning inter-
pretation of the provisions of the Agreement. He
shall have no authority to change, amend, add to,
or detract from any of the provisions of this Agree-
ment.
B. The Facts
1. The events of February 3
The Respondent, in recording employee attendance
and time worked, requires that employees pick up num-
bered brass tags each day at a trailer shack located in an
area of the brewery construction site parking lot near the
main gate. These tags were picked up before the 7:30
a.m. starting time and returned there starting around 3:50
p.m., in advance of the formal 4 p.m. quitting time. The
practice of returning the brass tags at the end of the day,
a procedure analogous to "punching out" on a time-
clock, is known as "dropping brass" or "brassing out."
Three steps on the north and south sides of the brass
trailer, respectively, led up to a platform affording access
to windows on each of those sides through which the
tags are passed out and in at the start and end of each
day. Employees were expected to pick up and drop their
brass tags at either the north or side windows of the
trailer, according to their respective tag numbers. While
employees gradually picked up their tags as they arrived
in the mornings, they returned the tags all at once in the
evenings. This resulted in long lines at each window at
the end of each day. It is undisputed that employees
while waiting on these lines to return their tags were ex-
posed to the prevailing weather conditions and that,
when it rained or snowed, the ground in the area of the
trailer could become very muddy. 6 While numerous oral
complaints about these muddy conditions were made to
union representatives and passed on to management, no
written grievance had been filed in accordance with the
grievance-arbitration procedure of the collective-bargain-
ing agreement.
On February 3,7 about 3:52 p.m., while approximately
150 employees were standing on the two lines leading to
the north and south windows to return their tags, Rich-
ard Pecks ran to the head of the line on the north side of
6 The actual work areas were less exposed as they were roofed over
and had concrete flooring.
It is undisputed that February 3 was a cold day with some snow-
flakes and that the ground in the vicinity of the trailer was very muddy.
8 On February 3, Peck was an area foreman in the power plant where
he was responsible for 3 foremen and 24 employees. A member of U.A.
for more than 30 years, he was a journeyman, plumber, and pipefitter
and, also, was president of the Local Union, a fact known to the Re-
spondent when he was hired. Peck originally had been engaged by the
Respondent at the brewery jobsite in 1980 at a higher position, as a gen-
eral foreman in waste water treatment, but had been demoted to journey-
man 10 months later. Peck subsequently was advanced to area foreman,
his position on February 3. As area foreman, Richard Peck was a super-
visor within the meaning of Sec. 2(11) of the Act. In February, there
were approximately 35 to 40 area foremen on the job who, in turn, re-
ported to their respective general foremen. General foremen reported to
the five area superintendents who were responsible to the project super-
the building and mounted the steps. Peck testified that he
told those standing in line that he was Richard Peck, the
president of the Union, in case anyone did not know
who he was, and that he was going to throw his brass
into the mud because he was tired of being treated like
an animal. The others could do as they wanted. Peck
then threw his brass tag down into the mud. Many of the
employees on the north and south lines followed Peck's
example and also dropped their tags where they stood,
although some deposited their tags on the trailer plat-
form and steps to avoid the mud. Then, the employees
left the premises.9 Richard Peck conceded that he then
went to the south side of the trailer to see how many of
the employees there also had dropped their tags. He
denied, however, that he had used stronger or other lan-
guage to exhort the employees or that he had positioned
himself on the steps to block employees who otherwise
would have gone to the windows to turn in their tags.
Peck also denied having deliberately kicked any of the
tags into the mud from the platform and steps. 10
Peck's account " is disputed by Company witnesses
Ted Angelo, Dana Michael, and Robert Rohrbach, who
were in the trailer at the time. 1 2 These witnesses testified
that, when Richard Peck mounted the steps at the north
side of the trailer, he told the men, "F-Grunau Compa-
ny. It's time Local 113 showed them who was running
this job, I am tired of being treated like an animal,
having to stand in the mud and wade in the mud." He
told the men to throw their "f brass" in the mud. Most
of the men complied.
Michael testified that some of the employees on the
other, the south, line came up to his window and handed
him their brass tags. However, when Richard Peck saw
what was happening, he went from the north to the
south side and positioned himself in the center of the
steps, again telling the men to throw their brass in the
mud. This caused the others to walk around and away
from Richard Peck. None tried to get by him, but some
threw their brass toward Michael's south window. Rohr-
bach related that, when Richard Peck left the north side
intendant, Ted Angelo. Angelo was immediately under Mike Foley, the
project manager.
9 In addition to the plumbers and pipefitters who dropped their brass
tags into the mud and left at Peck's urging, his example also was fol-
lowed by other tradesmen on the lines at the time, including carpenters,
ironworkers, and sheetmetal workers.
i' Chaney testified that, at the end of the average day, it took no more
than 3 minutes from the time he got on line until he brassed out.
i Richard Peck's testimony is corroborated by his son, Gary, and by
Tim Chaney.
it Angelo, as project superintendent and the Respondent's second in
command, on this job, happened to be in the trailer at the time of Peck's
protest because he had wanted to verify whether the men were lining up
too early to "drop brass." The trailer was manned regularly in the morn-
ings and evenings by Michael, at the south window, and Rohrbach, at the
north. Michael, who handled the braxsing and timekeeping, worked in the
trailer throughout the day making labels for the plant and attending to
paperwork, while Rohrbach, the safety security manager, was in the trail-
er only when the tags were given out and collected. When distributing
and taking in the tags, Michael and Rohrbach would make appropriate
entries on the "brass sheets" to show who was on the job and on absence
lists to show who was not. These records were delivered to the Respond-
ent's office by Rohrbach. After the tags were thrown into the mud, Mi-
chael and Rohrbach attempted to recover as many as possible and pre-
pared replacement tags, as needed.
1304
GRUNAU CO.
of the trailer, his son, Gary, took over for him there, ac-
companied by Tim Chaney. Gary Peck went up the
north steps while Chaney stood at "the end of the steps,"
blocking access to the trailer. As had his father, Gary
Peck raked off those tags that had been left on the plat-
form and steps into the mud on the north side while
Richard Peck continued to do the same thing on the
south side.' 3
When Richard Peck began his protest, Project Super-
intendent Angelo immediately telephoned the union hall
from the trailer and told business agent Charles Mig-
nery14 what was happening at the time; that Richard
Peck was causing problems and was shouting that Local
113 was running this job. At one point, Angelo held the
phone out the window, asking if Mignery heard what
was happening. The conversation continued during the
rest of the demonstration and the call was joined, ac-
cording to Angelo, by Business Manager Rodney A.
Combs. As the protest continued, Angelo informed the
union representatives on the telephone just when the
brass was thrown into the mud. The conversation ended
when Angelo reported that Peck had left.
The basic facts concerning Richard Peck's activities on
February 3 in causing employees to throw their brass
tags in the mud are stipulated, and the differences be-
tween Richard Peck's account and those of the Respond-
ent's witnesses lie principally in the vehemence with
which he acted. As the lawfulness of Peck's discharge on
the following day for this conduct is not an issue in this
proceeding, the factual circumstances are relevant
merely as background for the events that followed.
Therefore, credibility resolutions are not necessary con-
cerning the events of February 3, with respect to the ac-
tivities of Richard Peck, or even of Gary Peck and Tim
Chaney that day as the Respondent has predicated their
subsequent terminations on what they did during the fol-
lowing day when Richard Peck's discharge became
known, and not on actions attributed to them on Febru-
ary 3.
Accordingly, having found that Richard Peck had in-
cited the brass-dropping and early walkout incident of
February 3, there is no need to resolve conflicting ac-
counts relating to the vigor with which he acted. As
noted, no prior formal grievance had been filed by the
Union, or by Peck in his official capacity, concerning the
brass-dropping procedure or the adverse conditions to
which the employees were exposed while waiting to
"brass out."' l
13 Gary Peck and Chaney denied any such participation on February
3. While both conceded that they had joined the others in throwing
down their own brass, as suggested by Richard Peck, they otherwise
merely were observers.
"4 Mignery, as business agent, and Rodney A. Combs, the business
manager and chief officer, were the Union's two full-time paid officials.
15 It is worth noting, however, that although the General Counsel em-
phasized in his brief that Michael, from the south side of the trailer,
might not have heard all that Richard Peck had said while on the trailer's
north steps, a similar consideration worked against the accuracy of Rich-
ard Peck's account. Peck testified, in effect, that he did all of his inciting
on the north side of the trailer and, later, went to the south side merely
to observe how many of the employees on line there also had thrown
down their brass tags. While the occupants of the trailer, with open win-
dows at either end and close proximity to the action, were better situat-
ed, collectively and individually, to know what was going on immediate-
2. The events of February 4
Gary Peck and Tim Chaney testified that they arrived
at work on Thursday, February 4, before their 7:30 a.m.
starting time, picked up their respective brass tags from
the trailer and went to their work station in the D.E. fab
area,' e where they worked as journeymen pipefitters. In
addition to working together, the two men were friends.
Each had had previous periods of employment with the
Respondent on the brewery project, 17 and both were
members of the Union.
At their work area, their general foreman, Bob Rich-
mond, unlocked their gang (tool) boxes for them as he
did every morning, and they began work. Chaney and
Gary Peck soon asked someone passing through if Rich-
ard Peck had been terminated. They then asked Rich-
mond for permission to go to the powerhouse to learn if
anything had happened to Richard Peck. According to
Chaney, Richmond told them to go, but to come back as
soon as possible. 8
The two men then went to the power plant, approxi-
mately 100 to 150 yards away, where they saw Richard
Peck with Area Superintendents Charlie Williams and
Emery Pegram,19 and Peck's general foreman, Wayne
Ashford.
In response to their inquiry, Richard Peck told Gary
Peck and Chaney that it looked as though he had been
fired and was waiting for a steward. Gary Peck then
shouted at Ashford words to the effect that Ashford
probably could have prevented his father's discharge.
Ashford did not reply. Richard Peck cautioned Gary
Peck and Chaney to return to their work area as the
Company was looking for an excuse to fire somebody.
Chaney and Peck went back to the D.E. fab shop after
an absence of 5 to 10 minutes.
When they returned there, they told two other em-
ployees who intermittently work in their area, Thomas
Baxter and Ron Chaney, 20 of Richard Peck's discharge.
The four men decided to discuss Peck's termination with
Barney Dragger, the Union's vice president, who
worked in the machine room, approximately 50 yards
from where they were. They did not seek their fore-
man's permission before leaving.
ly outside, it is less clear, considering the greater distance and possible
obstruction by the trailer, how the employees on the south line would
know to throw down their tags unless separately urged. Therefore, it ap-
pears more likely, as described by the Respondent's witnesses, that Rich-
ard Peck was being unduly modest in describing his activities at the south
side of the trailer.
'6 D.E. is for diatomaceous earth, used to coat beer filters in the brew-
ery. Materials and piping for the brewery are fabricated in the D.E. lab
shop.
i7 Gary Peck was first hired by the Respondent on July 30, 1980,
when the project started; resigned on August 4, 1980; was rehired August
10, 1981; and resigned on August 19, 1981. Peck was rehired on October
14, 1981, and remained with the Respondent until terminated on Febru-
ary 5. Chaney initially was employed by the Respondent from June 22 to
July 8, 1981, when he resigned. He worked again for the Respondent
from September I to 29, 1981; resigned; was rehired on November 9,
1981; and stayed until his February 5 termination.
Is Gary Peck could not recall whether Richmond had responded to
their request.
'1 Richard Peck had worked under Pegram's general supervision as
Pegram's responsibilities included water treatment in the powerhouse.
20 Tim Chaney and Ron Chaney are not related.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baxter and Ron Chaney proceeded to Dragger's work
station, but Tim' Chaney and Gary Peck, before going to
see Dragger, first stopped at the powerhouse where they
found steward Ronnie Chastin with Richard Peck.
Chaney asked Chastin what he was going to do about
Richard Peck's discharge. Chastin replied that there was
nothing that could be done. He had called the union rep-
resentatives who directed that Richard Peck go to the
union hall. Gary Peck and Chaney insisted that Chastin
call the union representatives again to tell them to come
out to the job. Chastin replied that he was taking Rich-
ard Peck to the union hall, and told Richard Peck to ac-
company him.
Gary Peck and Chaney then joined Baxter, Ron
Chaney and Union Vice President Dragger in the ma-
chine room. It was not yet 9 a.m. Baxter, who had
brought a copy of the U.A. constitution, showed Drag-
ger Section 102, relating to the Local president, where it
was provided in relevant part that, "The president . . .
shall have a general supervisory control over all matters
pertaining to the welfare of the Local Union." As inter-
preted by Baxter, this section meant that, as president,
Richard Peck was responsible for the welfare of the
membership. Baxter declared that because conditions
were unacceptable to Richard Peck, the president, the
men should go along with him. Dragger told the others
to wait for the union representatives to come to the job.
The four men discussed Peck's termination further
with Dragger for about 10 minutes. Baxter reiterated
that Peck's discharge had been unjust as the punishment
was more than the situation demanded. Dragger repeated
that the men should let the union representatives handle
the matter. Tim Chaney responded, "Fine, but where are
they?" Dragger again advised them to go to their work
stations and to leave the matter to the union representa-
tives.
At that time, Edward R. Bowden, the D.E. fab shop
foreman, approached and told the four men that he had
been told to tell them to return to their work area.21
Gary Peck, Tim Chaney, and Baxter testified that
Bowden also told them that there would be a general
meeting in the cold service area at 9:30 a.m., and that the
men were going to be sick.22
Gary Peck related that, as they were returning to their
work station, he asked Bowden for permission to see his
brother, Gregory Peck, at the package warehouse, to see
if he had learned anything about what was happening.
Bowden told Peck to return as soon as possible.
Gary Peck returned to his work area 15 minutes later,
his brother not having heard anything. Although he
began to work, he continued to discuss his father's dis-
charge with employees who came to the shop. An em-
ployee, Bill Buckley, asked Tim Chaney and Gary Peck
if they knew there was going to be a meeting at 9:30
a.m. concerning the firing of the Local Union's presi-
dent.
a1 Bowden related that he had asked the men to return to their work
area as directed by his general and area foremen, who had seen some of
his men in the machine room.
22 Bowden recalled that he mentioned the meeting to the men later
that morning, but did not testify that he had told them that the men
would be sick.
At or about 9:30, Bowden returned and told them that
the meeting was beginning in the cold service area.
Tim Chaney and Gary Peck then went to the cold
service area together, followed by Bowden. Chaney and
Peck testified that when they arrived approximately 200
employees were already there. There was much noise,
shouting, and screaming, with men saying they were get-
ting out of there; expressing outrage that the president of
the Local Union had been fired over such a trivial affair.
According to Peck and Chaney, when they arrived the
meeting was starting to break up and the men were leav-
ing the job, talking about brassing out and going home
sick. Chaney and Gary Peck also headed for the gate
and brassed out2 3 and went home.2 4
The walkout occurred at approximately 9:30 a.m. At
around 10:10 a.m. that day, Project Manager Foley sent
the following mailgram to Martin J. Ward, general presi-
dent, United Association of Plumbers and Pipefitters:
You are hereby notified: Local 113 is in violation
of Article 4 of Project Agreement, Work Stop-
pages, page 6 specifically, "walk offs." You have 24
hours to supply manpower to this job (Miller Brew-
ing Company Trenton Ohio) or we will take what-
ever means to man this job.
The record contains no response from Ward.
The walkout, joined by approximately 200 employees,
lasted one day. When Tim Chaney and Gary Peck re-
ported for work the next day, with the others, as will be
detailed below, they, alone of the participating employ-
ees, were terminated for having instigated a work stop-
page in violation of the above-described no-strike provi-
sion of the collective-bargaining agreement.
The Respondent challenges the testimony by Chaney
and Gary Peck that they had arrived when the meeting
was ending, had played a passive role, and had quietly
left with the others as but two participants in a walkout
by many.
Frank B. (Brad) Jones2 5 testified that, during the
morning of February 4, he had seen Tim Chaney and
Gary Peck away from their work area, talking to three
or four others in the machine room. He next saw them
talking to several people in the powerhouse.
Jones testified that he again saw Peck and Chaney that
morning, after 9 a.m., at the meeting in the cold service
area. Peck was standing on a toolbox telling everybody
to get off the job; they were tired of being pushed
around. Chaney was standing next to him. Jones saw
Dale Smith's efforts to get the employees to return to
work was drowned out by Peck, Chaney, and others.
Jones estimated that approximately 100 employees were
23 It is undisputed that the employees who left work early on Febru-
ary 4 brassed out in the customary manner, returning their tags at the
trailer.
24 Dale Smith, one of the employees at the cold service area meeting,
had stood on a gang box, announced that he had been appointed tempo-
rary steward that morning, and urged the men to return to work. Smith
was shouted down or ignored.
's Jones was the Respondent's area superintendent over the brew
house and cold service.
1306
GRUNAU CO.
at the cold service area meeting. He agreed that there
had been much shouting.
Jones' description of the meeting which led to the
walkout essentially was corroborated by August R. Chia-
verotti, area superintendent over fermenting, aging, the
D.E. storage area, and fab shop, under whose general ju-
risdiction Gary Peck and Tim Chaney worked.
Chiaverotti testified that when, on the morning of
February 4, he entered the cold service area approxi-
mately 50 employees were gathered. He saw Gary Peck
standing on a toolbox with Chaney by him on the floor.
Peck was urging the employees to walk off, telling them,
in effect, that the Company was no longer going to
shame, or embarrass, his father.2 6 Within the next 3 to 4
minutes, about 100 more people entered the area and
gathered in a semicircle around Peck and Chaney. The
meeting became very loud and Chiaverotti decided to
leave.
3. The events of February 5
Gary Peck and Tim Chaney reported to work the next
morning, Friday, February 5, at their usual time, Peck
arriving slightly before Chaney.
Peck related that the timekeeper at the brass trailer
could not find his brass tag, but that Area Superintend-
ent Jones had appeared and handed him a termination
slip and his paycheck. Jones told Peck that he had been
discharged. Peck did not ask why.
After receiving his check, Gary Peck saw union busi-
ness representative Mignery outside the brass trailer and
asked if he should accept the check. Mignery told him to
take the check and hold on as Business Manager Combs
and Chastin, the steward, were meeting with company
officials in the office. He advised Peck to wait and see
what happens.
In the meantime, Chaney also reported back to work.
He observed Mignery standing by the brass trailer, di-
recting the arriving men to pick up their brass and return
to work. As Chaney neared the trailer, Gary Peck told
him that they had been fired. Chaney, noting the enve-
lope in Peck's hand, expressed doubt that they were sup-
posed to take their check from anyone but their foreman.
Peck, however, reassured him that Mignery had said that
it was all right to take the check.
When Chaney asked for his brass tag at the trailer,
Jones handed him his check in an envelope and told him
that he had been terminated. Chaney returned to Mig-
nery and Gary Peck and asked what was going to
happen. Mignery informed him, too, that Combs and
Chastin were in the Respondent's office trailer talking to
Project Manager Foley.2 7
a. Although Area Superintendent Jones testified, as noted, that he had
heard Gary Peck telling everybody to get off the job during the cold
service area meeting, he did not relate that he also had heard Peck tell
the employees that the Company no longer was going to shame or em-
barrass his father.
57 Combs testified that he had been called by the Respondent at the
union hall on February 4 as the men were leaving the job, and, with Mig-
nery, arrived at the jobsite that morning at or around 10:30, when, in
meeting with Foley and Angelo, he first learned that Richard Peck had
been terminated. Late that afternoon he was advised by company officials
that Tim Chaney and Gary Peck also were going to be discharged the
next morning, and was asked to be there on that occasion. Accordingly,
When Combs and Chastin emerged from their meeting
with Foley, they reported that nothing had yet been ac-
complished. However, Combs asserted that he was going
to try to get their jobs back. Combs and Chastin took the
paychecks from Peck and Chaney and went back for an-
other meeting with management.
About 20 to 30 minutes later, Combs and Chastin
again appeared, returned the paychecks to the two men,
and announced that there was nothing more they could
do. Combs related that they nearly had been successful,
but that when Foley learned that the men had accepted
their checks, the Company would not budge. Combs
suggested that Peck and Foley go to the National Labor
Relations Board, which they did.2 8
Project Superintendent Angelo recounted that the de-
cision to discharge Gary Peck and Tim Chaney as insti-
gators of what the Company considered was an unpro-
tected walkout in violation to the Project Agreement
was made on the afternoon of February 4 following dis-
cussion with Area Superintendent Chiaverotti. Chiaver-
otti had reported having seen Peck and Chaney talking
to the men. The union representatives were notified that
day of the decision to terminate the two men and were
requested to be present the next morning when Peck and
Chaney were to receive their checks to help avoid any
incident.
On Monday, February 8, Angelo met with union rep-
resentatives William R. Crellin, International representa-
tive of the U.A., Combs, Mignery, and Chastin. The
work stoppage of February 4 was discussed. Crellin, as
spokesman for the union group, agreed that Gary Peck
and Tim Chaney had been fired for just cause. As far as
the Union was concerned, it had made an agreement that
there would be no work stoppages. If Peck and Chaney
had participated in a work stoppage they were guilty
and the Union did not protect individuals who caused
work stoppages. Crellin assured the Respondent that the
Union would do everything in its power to see that such
an incident never reoccurred.
No grievances were filed concerning the discharges of
Richard Peck, Gary Peck, or Tim Chaney.
4. Credibility resolutions
Gary Peck and Tim Chaney, as noted, testified that
they had taken passive roles at the employees' meeting in
the cold service area on the morning of February 4, ar-
riving as the meeting was ending, and that they merely
had been among the many who then had left work to
protest Richard Peck's discharge. They denied having in-
cited the men to stop work and to walk out as charged
by Area Superintendents Chiaverotti and Jones, who,
also, had seen but not heard them talking to other em-
ployees earlier that morning at various places away from
their work station.
when Peck and Chaney were notified of their discharges, Combs already
was discussing their status with Foley.
*8 Combs, called as a witness by the Respondent, testified that he had
had only one meeting with management on February 5 concerning the
discharges of Gary Peck and Chaney. He did not testify that he had
taken the men's final checks and returned for a second meeting, as de-
scribed by Peck and Chaney.
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not credit the assertions of Peck and Chaney that
their role at the meeting was passive and that they did
not, at least, contribute to the walkout by urging the
others to leave work. From the time they arrived at
work some 2 hours before the meeting, by their own ad-
missions, Peck and Chaney had done little but pursue the
discharge of Richard Peck, while spending virtually no
time at their assigned tasks. With or without permission,
Peck and Chaney repeatedly left their work area, twice
visiting Richard Peck at the powerhouse where, on one
trip, Gary shouted at his father's supervisor. With Baxter
and Ron Chaney, they conferred with Union Vice Presi-
dent Dragger in the machine area. Gary Peck then went
on to speak to his brother, Gregory, in the package
warehouse. Even when Peck and Chaney finally re-
turned to their area, as directed by supervision, they con-
tinued to discuss Richard Peck's discharge with other
employees in the area. It would be totally inconsistent
with this continuous involvement in Richard Peck's ter-
mination and with Gary Peck's obvious concern for his
father to conclude that Peck and Chaney would have
been among the last to arrive at an employee meeting
called to protest Richard Peck's discharge, or that they
merely would have been passive onlookers at such meet-
ing.29
Although the General Counsel adduced testimony that
it was customary for Peck and Chaney, as D.E. fab shop
employees, to leave their work area in the course of their
duties to deliver or pick up piping elsewhere on the
project, their continued and unrelated absences from
their work station on the morning of February 4, while
they engaged in repeated discussions with other employ-
ees and where Gary Peck even yelled at his father's su-
pervisor, went well beyond the business-related trips
from their work area described as permissible.
Also, contrary to the General Counsel, the Respond-
ent's supervisory witnesses' credibility as to what oc-
curred at the cold service area meeting was not lessened
by their understandable reluctance to confront and seek
to control a large group of angry employees.
I, therefore, credit the Respondent's witnesses that
Gary Peck and Tim Chaney had played an active role in
urging the employees to walk out during the cold service
area meeting on February 4.
s9 Although the testimony of Peck and Chaney in this regard is gener-
ally supported by Bowden, their foreman at the time, the record tends
strongly to indicate that Bowden identified throughout with these men,
rather than with management, a perception which may have colored his
testimony. On February 3, Bowden had been among those who had
thrown their brass tags into the mud at Richard Peck's urging. When, on
the next day, he was directed by higher supervision to send Chaney and
Peck back to their work areas, he did not simply direct them to return,
but, apologetically told them that it had been told to him to tell them to
go back where they belong. He also participated in the February 4 walk-
out. Finally, by the time of the hearing, Bowden, first, had been reduced
from foreman to journeyman welder, and, later, was laid off while on
sick leave from a work-related injury. While Bowden may have been pre-
sented by the General Counsel as the dischargees' supervisor at the time
in question, his sympathies and interests, as evidenced by his activities
and status, lay clearly with Peck and Chaney rather than with the Re-
spondent, and his testimony must be evaluated in that light.
C. Discussion and Conclusions
The General Counsel contends that the February 4
walkout, which led to the discharge of Gary Peck and
Tim Chaney, was protected by the Act, as were their
jobs, as it was a concerted action in opposition to the
disciplining of Union President/Supervisor Richard
Peck, who had been fired for leading an employee pro-
test to secure improved working conditions. The General
Counsel further argues that, since under their interpreta-
tion of the collective-bargaining agreement, Richard
Peck's loss of employment was not arbitrable, the con-
tractual no-strike provision did not constitute a waiver of
the employees' right to strike in protest of the superviso-
ry discharge.
The Respondent's fundamental contention is that Gary
Peck and Tim Chaney were terminated for having insti-
gated an unprotected work stoppage in violation of the
no-strike provision of the collective-bargaining agree-
ment. In effect, the Respondent's position is that there
had been two consecutive unprotected employee walk-
outs, and that Gary Peck and Tim Chaney were lawfully
fired for inciting the second such walkout to protest the
discipline afforded to Richard Peck for having led the
first.
The general rule was restated in Puerto Rico Food
Products Corp. :30
Whether concerted actions by employees to pro-
test an employer's selection or termination of a su-
pervisor fall within the purview of Section 7 of the
Act depends on the facts of each case. In this
regard the Board has consistently held that where
facts establish that the identity and capability of the
supervisor involved has a direct impact on the em-
ployees' own job interests they are legitimately con-
cerned with his identity and thereby have a protect-
ed right to protest his termination.4
4 Dobbs Houses, Inc., 135 NLRB 885, 888 (1962), enforcement
denied 325 F.2d 531 (5th Cir. 1963); see also Kelso Marine, Inc.,
199 NLRB 7 (1972); Plastilite Corporation, 153 NLRB 180 (1965),
modified on other grounds 375 F.2d 343 (8th Cir. 1967); Clever.
Brooks Manufacturing Corporation, 120 NLRB 1135 (1958), en-
forcement denied 264 F.2d 637 (7th Cir. 1959); Ace Handle Corpo-
ration, 100 NLRB 1279 (1952).
In Puerto Rican Food Products Corp., supra, the Board
found that five unrepresented employees had been dis-
charged in violation of Section 8(a)(1) of the Act for
having refused to work in protest of the discharge of a
supervisor whose continued employment would have
been beneficial to their job interests. The Board held
that, under those facts, the supervisor there involved had
had a sufficiently direct impact on the employees' job in-
terests so that they were protected in refusing to work in
protest of his discharge. '
The present situation, however, where the employees
are represented by a union, more closely resembles
sO 242 NLRB 899, 900 (1979), enf. denied in relevant part 619 F.2d 153
(Ist Cir. 1980).
3" See, contra, Keyway, 263 NLRB 1168 (1982).
1308
GRUNAU CO.
Singer Co.,a2 on which the Respondent largely relies.
That case, in finding that an employee work stoppage
protesting that the Respondent's failure to promote a fa-
vored supervisor was unprotected, distinguishes Puerto
Rican Food Products. Administrative Law Judge Taplitz,
in his Board-approved decision in The Singer Company,
supra, provided the following analysis at 993-994:
There is, however, a critical factual distinction
between the situations in the Puerto Rico Food Prod-
ucts line of cases and the instant case. In the Puerto
Rico Food Products line of cases, employees who did
not have any collective bargaining representative
took direct action relating to the retention or dis-
missal of a company supervisor. There were no col-
lective-bargaining concepts to be considered. In the
instant case the RAs [Resident Advisors, the pro-
testing employees] had selected a collective-bargain-
ing representative and the Board had certified that
representative. Respondent and the Union had a
mutual obligation to bargain with each other. In
such circumstances both the employer and the
union have the right to select their own representa-
tives free from interference by the other side. If
either a company or a union could control the se-
lection of representatives by the other side there
could be no meaningful collective bargaining. In-
stead of a dialogue the party who controlled the se-
lection of the representative for the other side
would merely be talking to itself. Section 8(b)(1)(B)
of the Act provides that it is an unfair labor prac-
tice for a labor organization or its agents to restrain
or coerce an employer in the selection of his repre-
sentatives for the purposes of collective bargaining
or the adjustment of grievances. See Laborers' Inter-
national Union of North America. AFL-CIO (Inter-
national Builders of Florida, Inc.), 204 NLRB 357,
enfd. 505 F.2d 192 (D.C. Cir. 1974); American
Broadcasting Companies Inc. Writers Guild of Amer-
ica, West, Inc., et al. v. (N.LR.B.], 437 U.S. 411
(1978). A serious argument could be made that if
the Union had called the demonstration and work
stoppage in an attempt to control the selection of
the supervisor of residential living, the Union would
have violated Section 8(b)(1)(B) of the Act. This
section applies only to labor organizations and their
agents and does not apply to employees who are
acting other than as agents for the union. The em-
ployees side-stepped their Union in this case and
acted on their own. It appears that they did not
even inform the Union what they were going to do.
However, in such circumstances I do not believe
that employees have a protected right to circum-
vent their own collective-bargaining representative
and take action that would have been against public
s2 256 NLRB 989 fn. 2 (1981). Also see Permaglass Division, 210
NLRB 184, 186-187 (1974).
policy had the collective-bargaining representative
engaged in it. 6
16 In Abilities and Goodwill, Inc., [241 NLRB 27, enf. denied
612 F.2d 6 (Ist Cir. 1979)], there was no collective-bargaining
agent and the 8(bXIXB) issue was not raised in the Board case.
However, the First Circuit in denying enforcement stated that "the
specific language of the Act recognizes the employer's interest in
remaining free of employee interference in managerial decisions re-
garding the selection of personnel for handling employee griev-
ances."
In sum, I find that while the RAs actions were
not unlawful, neither were they affirmatively pro-
tected by the Act. In these circumstances I find that
the RAs' actions with regard to influencing the
choice by Respondent of its supervisor were not
protected by the Act. [Fns. 14 and 15 omitted.
Bracketed material supplied.]
The present situation is even stronger than in the
Singer Co., where the union had been the protesting em-
ployees' bargaining representative for only slightly more
than 2 weeks before the occurrence of the contested
events, and had not executed a collective-bargaining
agreement with the Employer. Here, a collective-bar-
gaining agreement containing a no-strike clause was in
place and the relevant restraints were more clearly de-
fined.
From the above finding in Singer, I conclude that the
work stoppage of February 4 was not protected. Unlike
Puerto Rican Food Products Corp. and related cases, the
employees here were represented and had an obligation,
not fulfilled, to bargain concerning matters in dispute.
The employees' conduct in stopping work and walking
out to influence the Respondent in its choice of supervi-
sor, while not violative of Section 8(b)(l)(B), as individ-
ually undertaken and not sponsored or sanctioned by a
union, nonetheless was the type of conduct proscribed
by that section of the Act and is unprotected as against
public policy.
Even if the General Counsel's position that Richard
Peck's discharge was not arbitrable were valid, the
above public policy consideration would sufficiently
rebut the General Counsel's argument that, in these cir-
cumstances, the February 4 walkout was protected activ-
ity.
However, the General Counsel's assumption that Rich-
ard Peck's termination could not have been arbitrated
under the Project Agreement is unsubstantiated. In his
decision in Jesco, Inc.,33 as approved by the Board, Ad-
ministrative Law Judge Corenman found that a wildcat
walkout by approximately 20 employees to protest the
discharge of three foremen who were members of their
union3 4 was unprotected as it occurred without union
authorization and contrary to the instructions of the
Union's business agent, and, also, because it was in viola-
S3 214 NLRB 790, 795 (1974).
a4 In Jesco, Inc., as here, one of the three discharged foremen was also
president of the Local Union. Although it was not specifically found in
Jesco that the three disciplined foremen were supervisors within the
meaning of Sec. 2(11) of the Act, such a conclusion is consistent with the
tenor of the decision and the customary practices of the industry.
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the existing contractual no-strike clause. The par-
ties' agreement contained a "comprehensive" grievance
and arbitration procedure.
In Jesco, Inc., supra at 795, the Board found that the
dispute concerning the discharge of the three foremen
could and should have been disposed of under the griev-
ance and arbitration procedure as their terminations had
not been for any of the reasons specified in the collec-
tive-bargaining agreement as exempt from the operation
of the grievance-arbitration procedure. 3 5 It, therefore,
was concluded that the walkout protesting the foremen's
discharge violated the contractual no-strike agreement
and that the employees who had walked off the job in
participation were unprotected.
Analogously, in the present matter section 4.5 of the
Project Agreement, quoted more fully above, gives the
Union, after appropriate notice and settlement efforts, the
right to withhold services from any employer "who be-
comes delinquent in the payment of proper wages, fringe
benefit contributions, and deductions including lawfully
authorized dues checkoff." The Union's right to with-
hold services in such circumstances existed even in the
face of the comprehensive no-strike language of articles
IV and VI of the Project Agreement. Disputes then in
the foregoing areas, therefore, similarly were exempted
from the grievance-arbitration clause of the project
agreement.
Here, as in Jesco, Inc., the February 4 walkout was un-
dertaken to protest a supervisory discharge which had
not occurred for any of the reasons exempted by section
4.5 of the contract from the grievance and arbitration
procedure. Also here, as in Jesco, Inc., where both the
relevant contract provisions and circumstances were
similar, Richard Peck's supervisory status did not auto-
matically bar his discharge from the grievance-arbitration
procedure. As he was not let go for any of the contrac-
tually-specified reasons which would have removed his
termination from the grievance-arbitration procedure
under the contractual exemptions, his discharge, too,
could have been considered under that process. For this
reason, too, I find that the walkout in protest of his dis-
charge was unprotected, and that the employees who
took part, including Gary Peck and Tim Chaney, were
engaged in an unprotected concerted activity.3 6
ss Exempted from the grievance-arbitration procedure in Jesco, Inc.,
were disputes concerning the payment of wages, travel or subsistence,
fringe benefits, or contributions to any trust fund.
36 The General Counsel's position that Richard Peck's supervisory dis-
charge was not arbitrable is, as noted, an assumption based on an inter-
pretation of the contract provision and stipulation that the appointment
and termination of union foremen were management prerogatives, and
the Union's stipulation that no grievances concerning supervisory dis-
charge had been previously filed under the project agreement. Such an
arrangement is hardly novel. Even apart from contractually reserved
management rights, the law is structured to preserve for management the
basic right to appoint and discharge its supervisors and all employees.
"The right to hire and fire and to control tenure of employment is an
employer's alone." Miranda Fuel Co., 140 NLRB 181, 188 (1962), enf.
denied 326 F.2d 172 (2d Cir. 1963). Should these functions be delegated
to a labor organization, under the Board's Miranda Fuel decision, the
Employer would remain responsible for the unlawful manner in which
the Union exercised the delegation. Also, as mentioned in the discussion
concerning Singer Ca, supra, it is violative of Sec. 8(bXIXB) of the Act
for the Union to cause a work stoppage to influence an employer in its
choice of supervisor. The point is that against this background of law and
In the present matter, Richard Peck, on February 3,
led a walkout of employees who had not yet brassed out
to protest the muddy, exposed conditions at the brass
trailer.s Although he long had complained informally
about these conditions and had relayed similar com-
plaints from others before acting on February 3, he had
not filed a formal grievance under the project agreement
in his official capacity as president of the Union, nor had
any other grievance been filed concerning the adverse
conditions at the trailer. In these circumstances, as condi-
tions at the trailer clearly were grievable, it is difficult to
conclude in light of the contractual no-strike clause, that
Richard Peck's conduct on February 3 would have been
protected had he been a nonsupervisory Local Union
president at the time.
The unprotected nature of Richard Peck's conduct is
relevant because it tends to more dramatically illustrate
that the General Counsel's position, if accepted, would
create an exception to the contractual no-strike clause
which would enable employees who were aggrieved by
a supervisory disharge, even if for unprotected activity,
to withhold their services in protest. As the employees,
concededly, could not have engaged in the same work
stoppage in the face of the no-strike clause and griev-
ance-arbitration procedure to protect the job of a similar-
ly circumstanced nonsupervisory union officer, the per-
missible disruptive potential by employees on behalf of a
disciplined supervisor would become greater than on
behalf of an identically situated nonsupervisory employ-
ee.
The effect would be to reduce the efficacy and, there-
fore, the appeal of no-strike clauses in contracts. In
Mastro Plastics Corp. v. NLRB,3a the U.S. Supreme
Court noted that, in appropriate circumstances, waivers
of the employees' right to strike and of the employers'
right to lockout to enforce their respective economic de-
mands during the term of such contracts "contribute to
the normal flow of commerce and to the maintenance of
regular production schedules." As such it generally is
recognized that the inclusion of "no-strike, no lockout"
provisions provides an incentive of periodic labor peace
and workplace stability for entering into collective-bar-
gaining agreements. It would not be consistent with this
public policy favoring such clauses to seek, under the
of contract language affirming management's control over supervision
and employment in general, the Board, in Jeso, Inc., supra, held in cir-
cumstances similar to those involved here, that as the three foremen's dis-
charge could and should have been arbitrated, the employee walkout to
protest same was not protected activity. This recognizes the distinction
that while management, in the first instance, controls various aspects of
the job, from the hiring, discharge, and tenure of supervisors to the as-
signment of work, absent specific contractual exemption, the manner in
which these prerogatives are exercised may be challenged under the
grievance-arbitration procedure, and, where applicable, as in situations
arising under Parker-Robb Chevrolet, supra, before the Board. As unions
have a right to evaluate the merits of potential grievances and as the ag-
grieved not always are diligent, the bare stipulated fact that no superviso-
ry discharge grievances had been filed under the Project Agreement,
without further showing, is too inconclusive to be meaningful.
"7 The Respondent's argument in its brief that Richard Peck's protest
on February 3 was unrelated to working conditions is completely unsup-
ported by the record.
38 350 U.S. 270, 280 (1956).
1310
GRUNAU CO.
circumstances of this case, to create a precedent tending
to erode their utility and acceptance.
Having found for the above reasons that the February
4, 1982, walkout was unprotected by the Act as violative
of the no-strike clause contained in the Project Agree-
ment, I further conclude that the employees who partici-
pated in it, including Gary Peck and Tim Chaney, were
engaged in an unprotected concerted activity and that,
contrary to the complaint allegations, the Respondent
did not violate Section 8(a)(1) of the Act by discharging
these two men.
Although to develop a more certain factual account, I
resolved conflicting testimony by crediting evidence that
Gary Peck and Tim Chaney had actively encouraged
employees to participate in the February 4 walkout, that
credibility resolution did not significantly augment the
result reached here as the participation by Peck and
Chaney in the walkout is undisputed. Therefore, their
conduct was unprotected. As restated in Jesco, Inc. ,39
"When a strike is unprotected, an employer may disci-
pline some but not all of the employees involved provid-
ed, however, that the selection for discipline is not based
on the employee's union membership or other union ac-
tivity."
It is undisputed that in the present matter, the Re-
spondent, a major mechanical contractor, operates only
union jobs, signing nationwide and local collective-bar-
gaining agreements, as applicable. In the present matter,
all its employees were hired through the Union's hiring
hall and it accepted advice from union officials familiar
s3 Supra 214 NLRB at 790.
with the local work force as to who would be qualified
to be supervisors.40 There is no evidence that the Re-
spondent has interfered with the union activities of its
employees or that the selection of Gary Peck and Tim
Chaney for termination was based on a desire to dis-
criminate against any membership faction of Local Union
No. 113.
For these reasons the complaint should be dismissed in
its entirety.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel had not established by a pre-
ponderance of the credible evidence that Respondent
violated Section 8(a)(1) of the Act as alleged in the com-
plaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER4
The complaint is dismissed in its entirety.
40 Richard Peck initially was hired as a supervisor on the Union's rec-
ommendation.
41 If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
1311