Hughes Aircraft Co.

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 31 (N.L.R.B. 1971)

MEVA CORPORATION 31
MevA Corporation , Subsidiary of Hughes Aircraft
Company and George H. Garceau
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 104 ,' Division of
International Brotherhood of Electrical Workers,
AFL-CIO and George H. Garceau . Cases I-CA-
7008 and 1-CB-1579
March 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 8, 1970, Trial Examiner Sidney Sher-
man issued his Decision in the above-entitled pro-
ceeding, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices,
and recommending that they cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondents had not
engaged in certain other alleged unfair labor prac-
tices, and recommended that such allegations be
dismissed. Thereafter, exceptions to the Trial Examin-
er's Decision and briefs were filed by MevA, the
Local, and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent indicated below.
We cannot agree with the Trial Examiner's conclu-
sions that the facts establish a prima facie case against
either Respondent.
1. The case against MevA: The Trial Examiner
found that Garceau and other employees refused to
perform part of their regular work (namely, driving
their cranes to the jobsite), in derogation of the no-
strike clause in the collective-bargaining contract.
Faced with this emergency, MevA requested the
Local to authorize that the driving be done by
supervisors. The Local granted this request, and the
driving was accordingly done by supervisors Quigley
and Lisenby. Garceau then proceeded to operate his
crane at the jobsite. In the presence of other
employees Garceau pressed charges against the two
supervisors (who were union members) with the
Local's steward, a fellow employee. The charges
stated that the driving of the cranes by the supervisors
to the jobsite was performance of unit work by
nonunit personnel in breach of the contract. The
record does not show either that any representative of
management was in the vicinity at the time Garceau
made his charges to the Local, or that the Local
advised the supervisors or any other management
representative that Garceau had pressed the charges.
Shortly thereafter, Garceau was laid off. When
Garceau asked for the reason, he was told by
Supervisor Quigley that it was for lack of work.
Garceau reported that he knew that the reason for the
layoff was the union charges he had pressed against
Quigley. Quigley replied that the charges had nothing
to do with it, and repeated that MevA had no more
work for Garceau. After further discussion, Quigley
told Garceau, according to testimony credited by the
Trial Examiner in the face of Quigley's denial, that
Garceau would never again work for MevA.
We do not disagree with these findings of evidenti-
ary facts made by the Trial Examiner. But we do find
that Quigley's final remark to Garceau is not of
controlling weight. In making this latter finding, we
note the Trial Examiner's disregard of the contempo-
raneous written "termination notice," made in the
regular course of business and signed by Quigley,
stating that Garceau was terminated due to a
reduction in force and that he was eligible for rehire.
From all the facts, the Trial Examiner inferred and
concluded that MevA knew Garceau had pressed the
charges against the supervisors, and that a prima facie
case was established that MevA had discharged
Garceau for that reason. We do not agree that the
facts are legally sufficient to warrant such inferences
and conclusions. Accepting the Trial Examiner's
judgment that MevA has not proved it discharged
Garceau for cause, it does not follow that the General
Counsel has sustained his burden of proof that the
discharge was unlawful. Particularly since Garceau's
own disregard of the no-strike contract triggered the
chain of events which culminated in his termination,
we would require rather clear evidence before finding
that MevA terminated Garceau for engaging in a
protected concerted activity. Unlike the Trial Exam-
iner, we find that the evidence in this case, although
perhaps raising a suspicion as to MevA's motivation
for the discharge, is not sufficient to warrant a finding
that the discharge was in reprisal for Garceau's
engaging in the protected concerted activity of
pressing charges for breach of contract. Accordingly,
we shall dismiss the complaint against MevA.
I The name of the Local appears as amended at the hearing.
189 NLRB No. 7
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The case against the Local • The Trial Examiner's
finding of a violation by the Local rests, initially, on
his view that MevA had discriminatorily terminated
Garceau. The Trial Examiner inferred that the Local
knew of MevA's discriminatory motivation, and
therefore concluded that its refusal to press Garceau's
grievance concerning his discharge was improper.
Since, as found above, we do not agree with the Trial
Examiner's basic view that MevA discriminated
against Garceau, it follows that, without reaching the
difficult legal issues that would be presented, the
record likewise fails to prove that the Local acted
improperly in refusing to press Garceau's grievance.
With respect to the charges Garceau pressed with
the Local against supervisors and union members
Quigley and Lisenby for doing unit work in breach of
the contract, the Trial Examiner found that the Local
had authorized the supervisors to do this work in
order to resolve the crisis created by Garceau's own
breach of the no-strike clause of the contract, and had
thus waived any possible breach of contract by
MevA; and the charges were therefore without merit
The General Counsel excepts, but does not show that
the charges had merit. Nor does he show that the
Local would have entertained the charges but for its
resentment against Garceau for complaining about
the supervisors' breach in performing unit work.
Accordingly, we shall dismiss the complaint against
the Local.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner. The original charges
herein were served on the Respondents on February 16,
1970,' the complaint issued on May 11, 1970, and the
matter was heard on June 30, July 1, and July 10. The issues
litigated related to alleged violations of Section 8(a) (1) and
8(b)(l)(A) of the Act, though a discriminatory discharge
and the refusal by the Union-Respondents to process a
grievance arising from such discharge After the hearing
briefs were filed by the General Counsel and MevA At the
same time, the General Counsel filed a motion for
reconsideration of rulings at the hearing striking certain
allegations of the complaint. On August 25, an order was
issued denying that motion as to all allegations except
paragraph 22(a) of the complaint, which alleged a violation
of 8(b)(1)(A), and as to that allegation an order was issued
to show cause why it should not be reinstated. On
All dates are in 1970, unless otherwise stated
2 For corrections of the transcript, see the order of September 8
The name of the Local appears as amended at the hearing
An allegation that Garceau was laid off for engaging in a work
September 2, the Union-Respondents filed a reply to that
order. On September 8, an order was issued reopening the
record and reinstating that allegation, and, as no party
expressed any desire to present further evidence, the record
was again closed by telegraphic order of September 25
Upon the entire record,2 including observation of the
witnesses' demeanor, the following findings and recom-
mendations are made:
I THE RESPONDENTS
a MevA Corporation , hereinafter called MevA, is a
corporation under California law, with a principal office in
Los Angeles , California , and is engaged in the business of
constructing electrical power transmission lines at various
locations, including an area in the vicinity of Plymouth,
Massachusetts , which is the only one here involved For
services performed in States other than California, MevA
annually receives revenues in excess of $ 50,000 MevA is
engaged in commerce under the Act.
b. International Brotherhood of Electrical Workers,
AFL-CIO, and its Local Union No 104 ,3 hereinafter called
IBEW and Local 104 , respectively , and somteimes
collectively designated as "the Unions ," are labor organiza-
tions under the Act
ii. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
a Whether MevA laid Garceau off and thereafter
refused to reemploy him because of his concerted activities
in connection with the filing of a "grievance " concerning
the performance of unit work by supervisors , thereby
violating Section 8(a)(1) of the Act?4
b. Whether the Unions violated Section 8 (b)(1)(A) by
refusing to entertain Garceau 's grievance over his
terminations 5
A. Sequence of Events
MevA performs various services for utility companies,
including the installation of power transmission lines
During 1969 and 1970 it was engaged in such work in the
vicinity of Plymouth, Massachusetts, for the Boston Edison
Company and the New England Gas and Electric
Company. These operations were covered by a contract
between MevA and Local 104, which recognized Local 104
as the primary source of referrals and contained a no-strike
clause. About 50 employees assigned to this area were
based at Sandwich, Massachusetts. One of these was
Garceau, a member of Local 104, who was classified as an
equipment operator, his job involving primarily the
operation of a 25-ton crane and of the vehicle on which the
crane was transported On January 2, a dispute arose
between MevA and about 10 of its employees at Sandwich,
including Garceau, whose duties involved the driving of
vehicles This dispute originated in a mistaken belief on the
part of such employees that their vehicles had not been
properly registered under state law for the new calender
stoppage was struck at the hearing
' All allegations of the complaint against the Unions were struck at the
hearing However the instant allegation was reinstated by the order of
September 8
MEVA CORPORATION
year, and they refused to take them out, rather than risk
being charged with a violation of law. However, after a
work stoppage of about 45 minutes, the matter was resolved
by having two supervisors, Quigley and Lisenby, transport
the vehicles in question to the jobsites 6 When, later that
morning, Garceau questioned the right of the supervisors to
perform bargaining unit work in this manner, Local 104's
steward, Eaton, explained that they had been authorized to
do so by the Local's business manager, Loughran. Garceau,
nevertheless, insisted that "charges" or "grievances" be
brought against Lisenby and Quigley, both of whom were
members of the Local, for operating the vehicles 7 Eaton
then prepared a document, which was described by
Garceau as follows
The best I can recall it stated that these are charges to
be brought against Terry Quigley and Mike Lisenby for
the operation and transportation of equipment and
vehicles to the job site.
About I I a m the next day, this document was presented
by Eaton to Garceau and the six other members of the
crew, with which he worked, and three of them-Garceau,
Smith, and Dechene-signed it, but Eaton took no further
action thereon About 4 o'clock that afternoon, Garceau
was notified by his immediate supervisor, general foreman
Lisenby, that he was being laid off for lack of work After
protesting the layoff to Eaton without avail, Garceau on
January 5, visited the Local's business manager, Loughran.
He explained to Garceau that MevA had the right to lay
him off and, when Garceau pointed out that MevA had
retained some non-Union equipment operators, Loughran
maintained that MevA was entitled to do so. A day or so
later Garceau ascertained that his crane was being used to
unload reels of wire and was being operated by another
equipment operator, Southworth When Garceau reported
this to Loughran, he remarked only that Southworth was a
member of the Local and there was nothing that could be
done In mid-January, when Loughran sounded Garceau
out about accepting a job with MevA in Uxbridge, he
voiced a preference for work closer to his home, observing
that Uxbridge was 60 miles away
On January 26, Garceau wrote IBEW's international
representative, Saunders, reciting, inter aha, the foregoing
events and complaining about Loughran's handling of his
layoff grievance On February 5, Saunders and Loughran
met with Garceau to discuss his complaint. When Saunders
took the same line as Loughran as to Meva's right to lay
Garceau off for lack of work, the latter cited a provision of
the contract, which required that, in case of layoff,
"temporary employees" i e , those who had been hired
directly by MevA-be laid off before employees like
Garceau, who had been hired through the Local However,
Saunders offered him only an assurance that he would be
referred to work at the first opportunity
Under its contract, MevA was required to give Local 104
^, I he crews were then hauled separately to the jobsites in out-of-state
vehicles not involved in the registration dispute
' Dechene who was present during the latter part of this conversation
testified that he did not hear Garceau propose the filing of the charges
11owevcr I atop agreed with Garceau that it was he who first made such a
proposal
33
and the employee involved 24 hours' advance notice of any
layoff for 3 or more days 8
B. Discussion
I As to MevA
The amended complaint alleges that MevA violated
Section 8(a) (1) of the Act by laying Garceau off on
January 3, for complaining about the performance of unit
work by supervisors, and by refusing thereafter for the
same reason to hire him at other locations.9
As already related, Garceau was "laid off" only a day
after he demanded that Eaton prepare charges against
Quigley and Lisenby, and only several hours after he (and
two other employees) had signed the charges. Garceau's
version of the circumstances attending his layoff was that at
4 p m., on January 3, 1-1/2 hours before his normal
quitting time, his general foreman, Lisenby, relieved him of
the key to his vehicle and stated that he was being laid off
and that, when he asked Lisenby for the reason for the
layoff, he answered.
Lack of work, I guess, I don't know. Ain't got no work
for you, George.
Garceau then proceeded to the trailer, which served as an
office, where he encouraged Eaton and Quigley, and,
according to Garcea j, the following conversation ensued.
. I said to Peter [Eaton]. . "Do you know that I am
being laid off?" and he said "Yes." I said,". . Do you
know for what reason?" He said, "As far as I know
unsatisfactory work, I don't know As far as I can tell
you ". . I then turned around and looked at Terry
Quigley . and I said, "Is that the reason, Terry, that I
am being laid off9". . He said, "No, I can't say
unsatisfactory work. . . No, let's just say lack of work,
how's that9" . I said to him, "Lack of work.. . I
know the reason why I am being laid off." .. . he said,
"What do you mean?" I said," . . because I brought
out grievances against you... and you know all about
it " He said, "That has got nothing to do with it . As
far as I am concerned we have no work for you or that
crane and that is it "
Garceau added that toward the close of the discussion
Quigley stated with reference to the reason for the
layoff,"It's lack of work as far as I am concerned and you
will never operate that crane or work for MevA Corporation
again "(Emphasis supplied.)
Garceau returned to the trailer on January 5, to collect
his pay As to the events on that occasion, he testified that,
when, in the presence of Eaton, he announced his intention
to take up the matter of his layoff with Loughran, Quigley
declared, "No matter what you do, George, you are not
working for this company any more." According to
Garceau, Lisenby then commented, "George you take a
G C Exh 2 art 1. par (B)
An allegation that one of the reasons for the discrimination against
Garceau was his involvement in the work stoppage of January 2, was
struck at the hearing See the discussion of this matter in the order of
August 25 1970
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
little and you give a little and now you are on the taking
end, that's all. Take it "10
Quigley's version was that he told Garceau he was being
laid off for lack of work, and he denied saying that Garceau
would never work for MevA again. He admitted that he
probably told Garceau that the reason for his layoff was
lack of work as far as Quigley was concerned, and, when
asked why he used the underscored words, he gave an
unresponsive answer. Moreover, he did not unequivocally
deny that Garceau ascribed his layoff to the filing of the
charges.l l
After some vacillation as to whether he had seen Garceau
at all on January 5, Lisenby admitted that he might have
made the remark to him on that date about giving a little
and taking a little, but insisted that he had not added the
statement that now Garceau was taking it When asked
what he meant by "give a little," and, more specifically,
what Garceau had "given," Lisenby answered;
I might have said, "Forgive a little and take a little."
That may be more appropriate.
However, the record fails to suggest why Lisenby would
entreat Garceau's forgiveness for what was, according to
Lisenby, a rountine layoff. Eaton's version was that, after
Lisenby told Garceau he was being laid off for lack of
work, he asked the witness what the reason was, and he
merely remarked, "The company said it is lack of work "
However, he did not specifically contradict Garceau's
testimony as to Quigley's subsequent explantion of the
termination, including his assertions on January 3 and 5
that Garceau would never work for MevA again
In view of the foregoing deficiencies in the testimony of
Quigley and Lisenby, as well as demeanor considerations,12
and the circumstantiality and spontaneity of Garceau's
testimony, I credit him.
He testified further that at his meeting with Saunders and
Loughran on February 5, the latter stated that he had
referred Garceau to three diffferent jobs but
"unfortunately" these jobs were at MevA projects in
Uxbridge and Blackstone and MevA refused to accept him,
as it had a right to do under the contract, and that, when
pressed for the reason for such refusal, Loughran answered
only that he did not care to disclose it.
10 Here , as elsewhere, I have attempted to supply punctuation in-
advertently omitted by the reporter from the transcript
i i Quigley professed merely not to recall any such remark
i2 The contrast between Garceau's poise and apparent sincerity and
Lisenby's obvious confusion and embarrassment was particularly marked
13 Loughran's lack of candor was highlighted by his parrying a question
put by the General Counsel in the area here under consideration with the
remark that he "would have to look for some direction as to how to answer
that "
The unexplained failure of the Local to call Saunders warrants the
inference that his testimony would not aid Loughran
14 MevA contends that there is no direct evidence that it knew of
Garceau's activity in connection with the charges and that any reliance on
the "small-plant" rule to infer such knowledge is here precluded , infer alia,
by the absence of any evidence that such activity was conducted in the
immediate proximity of management representatives However, application
of the small-plant rule does not depend on showing that the activity in
question was so conducted For the purpose of that rule, it suffices that the
activity was carried on overtly among the employees generally Here,
uncontradicted testimony of Dechene shows that the discussion between
Garceau and Eaton on January 2, about the preparation of the charge
occurred in the Sandwich yard in the presence of 15 to 20 employees, and
there is no dispute that it was signed in the presence of all 7 members of
Loughran admitted that he might have indicated on that
occasion that MevA did not want Garceau, but explained
that such a statement would have been based only on
inferences drawn by Loughran from the controversy that
had developed between MevA and Garceau as a result of
his layoff, and Loughran denied that any representative of
MevA had refused to accept Garceau. However, elsewhere
in his testimony he equivocated as to whether MevA had
indicated an aversion to Garceau and, when specifically
asked whether on February 5, he had referred to a refusal
by MevA to hire Garceau on three jobs, Loughran
answered only that he did not recall making such a
statement. On the basis of demeanor, as well as the
foregoing deficiencies in Loughran's testimony,13 Garceau
is credited, and it is found that at the February 5 meeting
Loughran declared that MevA had rejected three referrals
of Garceau but refused to divulge the reason for such
rejections.
Fitting all the pieces together-the timing of the layoff in
relation to Garceau's signing of the charges, the initial,
equivocal answers given Garceau on January 3, with regard
to the reason for his layoff, Lisenby's reference to the fact
that Garceau had "given" and was now "taking," Quigley's
final abandonment of all pretext when he twice blurted out
that Garceau would never work for MevA again, and
Loughran's admission on February 5, that MevA had thrice
rejected referrals of Garceau made since his layoff, coupled
with Loughran's reluctance to reveal the reason for such
rejections-all these circumstances suffice to establish a
prima facie case that Garceau was terminated because of
the prominent part he played in filing the charges against
Quigley and Lisenby 14
Respondent's main defense was that Garceau was laid off
for lack of work. However, it was conceded that at the same
time that Garceau was terminated MevA moved from a
6-day week to a 7-day week,15 and that MevA had a high
turnover rate at Sandwich, and the record shows that, if
Garceau was in fact laid off for lack of work, he was the
only one out of the 90-odd employees based at Sandwich
and nearby Beaver Dam to be terminated solely for that
reason 16
The first supervisor to testify about the reason for
Garceau's crew, as well as Eaton (The General Counsel would attach
significance to the fact that , as shown by the record , Garceau's foreman,
Saxton, was present on the latter occasion However, as there was no
evidence as to his supervisory status, I do not rely on that circumstance
The General Counsel points, also, to the fact that, as found above, when
Garceau on January 3 taxed Quigley with laying him off on account of the
charges. asserting that Quigley knew all about them, his only reaction was
to deny that they were a factor The General Counsel contends that, under
the circumstances, Quigley's failure to deny knowing of the charges should
be treated as impliedly admitting such knowledge There appears to be
merit in this contention
In any case, Quigley's aforenoted admission to Garceau, in effect, that
the "layoff"' was not in fact a layoff but a discharge for an undisclosed
reason would seem in itself, sufficient basis for inferring that the only
reason for Garceau's termination was the one alleged by the General
Counsel there being no evidence as to any other conduct of Garceau that
would prompt Quigley to discharge him In the face of such an implied
admission that Garceau was terminated because of the charges. there is no
need to determine how Quigley learned about them
15 This continued until March 15
15 There was testimony that Fitzgerald , an equipment operator, who
worked out of the Beaver Dam yard, was terminated for lack of work in
mid-January but Quigley acknowledged that the decision to dispense with
MEVA CORPORATION 35
Garceau's selection was Corcoran, the field superintendent
in charge of the Sandwich and Beaver Dam operations. He
testified, in effect, that, although he consulted his general
foreman and his superior, Quigley, with regard thereto, the
ultimate responsibility for any personnel action, including
layoffs, was his. However, he admittedly had no advance
notice of Garceau's layoff, learning about it only on January
5, when he returned to work from a 2-day absence.
According to Corcoran, he was then informed by Quigley
that he and Lisenby had picked Garceau for layoff because
his crane had to be repaired. However, Corcoran admitted
that it took only I day to repair the crane, and, while
insisting that he had two surplus operators at the time,
Corcoran finally confessed that he did not really know why
Garceau was picked for layoff rather than some other
operator.
Quigley, who, as general field superintendent, was
Corcoran's superior, denied that Garceau was selected for
layoff because of the need for repairing his crane or that he
had so informed Corcoran. Quigley took the tack that he
decided on January 3 to dispense with Garceau's services
on the basis of a report made to him by Lisenby that
afternoon that it was not feasible to continue to use the
crane in connection with the "deadending" work,17 coupled
with the fact that such work had virtually been completed.
However, Lisenby was clear that it was not on January 3,
but on January 2, that he last discussed with Quigley the
shortcomings of the crane on the deadending work. He
insisted, moreover, that, having originally suggested that it
be used for that purpose, he was reluctant to admit to
Quigley that it could not be made to work and, although his
testimony was not pellucid on the point, it is inferrable
therefrom that he took the position on January 2, that use
of the crane for deadending was still feasible. In any event,
he was positive that no decision was reached at the time of
his discussion with Quigley and that the final disposition of
the crane was left up to Quigley, who instructed him by
radio some time the next day to call it into the yard.
Thus, if one credits Corocran, he was told by Quigley on
January 5, that Garceau had been selected for layoff in
Corcoran's absence because his crane needed repair,
whereas, according to Lisenby and Quigley, the only matter
considered by them was the impracticality of using the
crane for deadending. Moreover, while the thrust of
Quigley's testimony was that he relied on Lisenby's views
with regard to the matter, as conveyed to him in the
afternoon of January 3, immediately before he decided to
suspend the use of the crane, Lisenby denied that he took
any firm position against the use of the crane, and insisted
that his only discussion with Quigley about the matter was
in the afternoon of the 2nd. It is puzzling, moreover, that
the foregoing versions by Quigley and Lisenby were
advanced at some length, despite general agreement among
all three witnesses that by January 3 the deadending work
had been virtually completed, so that the feasibility of
continuing to use the crane for that purpose was apparently
a moot issue. It would seem that the only question that
needed to be considered at that time was whether the crane
could be used for any other purpose. While, on this point,
Quigley did testify that, on January 3, he could not forsee
any other immediate use for the crane, he admitted that,
after employing the crane on January 8, on a brief,
emergency job, he used it thereafter until February 21, in
the erection of steel towers in an adjacent section of
MevA's operations, assigning the crane to another
equipment operator, Southworth. In view of this, is it not
clear what Quigley meant when he said he could not, on
January 3, foresee any immediate use for the crane. He
presumably knew then about the work to be done in the
other section and that the crane could be used for that
work.
While there was no evidence that Garceau was replaced
by hiring another equipment operator at Sandwich,18 the
record shows that N° evA was under pressure to complete by
March 15, the operations being performed out of the
Sandwich yard, that to this end it adopted a 7-day week at
or about the same time that it was laying Garceau off,19
that it was experiencing a high rate of turnover, that there
was other work that Garceau could do, and had done,
besides operating a crane, and that, as related above, out of
the 90-odd employees under Corcoran's supervision, none
had been laid off solely for lack of work since Garceau's
termination.20 When one adds to this the discrepancies
pointed out above in the testimony of Corcoran, Quigley,
and Lisenby, and the curious haste with which the
termination of Garceau was effected, bypassing any
consultation with Corcoran, who would normally have
made the decision, the impression created is that Respon-
dent's entire defense was contrived.21 At any rate, the
evidence of economic justification for Garceau's termina-
tion is not deemed sufficiently cogent to refute the General
Counsel's prima facie case that he was discharged for his
concerted activity in connection with the charges against
Fitzgerald's services was triggered by his unauthorized early departure
from work on a Sunday afternoon.
17 This was a phase of the wire- stringing operation, to which the crane
was assigned in mid-December 1969. The Crane had previously been used
in the erection of the steel towers to which the wires were attached.
18 Quigley testified that after Garceau's departure MevA arranged to
have the four cranes at Sandwich operated by three men, instead of four
men, as theretofore, assigning one man to alternate between two cranes.
While this was presumably a more economical method of operation, no
witness contended that this procedure was contemplated when Garceau
was laid off or influenced the decision to lay him off. Presumably, the
reason for this is that this change in operating procedure would not explain
why Garceau was selected for layoff rather than Southworth, for example.
whose crane was one of the two assigned to a single operator.
19 Quigley explained that due to weather conditions the men did not in
fact work all 7 days. However, it is proper to infer that under a 7-day week
schedule they must have worked more days than they had been working up
to then under a 6-day week schedule.
20 See fn. 16 , above. Quigley admitted that he had great difficulty in
manning the Sandwich job because of inclement weather and the high rate
of quits.
21 The General Counsel points, also, to Quigley's admission that, in
laying off, on January 9, some employees at its operations in Medway
(over which Local 104, also, had jurisdiction), Local 104 demanded, and
Respondent granted. 48 hours' advance notice, although as noted above,
only 24 hours' notice is required by the contract. Clearly, Garceau did not
have 48 hours ' advance notice . Moreover , it is open to serious question
whether he even had 24 hours' notice, in view of Respondent's action in
relieving him of any further duties, without any prior notice, about 1 hour
before quitting time on Saturday, January 3, even though it did pay him for
4 hours' "show-up" time on January 5, pursuant to article VI, sec. 13, of
the contract. However, as this matter was not adequately litigated at the
hearing, I do not pass thereon.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the supervisors for performing unit work in breach of
contract.
MevA further contends that such concerted activity was
not protected because it challenged the propriety of the
action of the supervisors in attempting to mitigate the
effects of an unprotected work stoppage.22 Counsel for
MevA asks, "If the strike was unprotected, how can a
`grievance' arising out of it be considered protected?" Thus,
MevA's position is, in effect, that the fact that the stoppage
was in breach of contract deprived the employees of the
right to complain about any action taken by management,
even though such action involved, as here, a flouting of the
contract However, while management is privileged to cope
with an unprotected strike by discharging the strikers, or as
here, by pressing supervisors into service, it is quite another
thing to say, as MevA, in effect does, that employees may
lawfully be discharged merely for complaining about any
action taken by management to deal with an unprotected
strike, be it discharge of the strikers or the performance of
unit work. Respondent cites no authority for such a
proposition and I am aware of none 23
There was extensive testimony concerning the efforts by
the Local after January 5 to refer Garceau to MevA jobs.
Such testimony was adduced by the General Counsel in
support of an allegation of the complaint that, after
January 5, MevA unlawfully refused to hire Garceau.
However, it having been found that his "layoff" was, in
itself, unlawful, no useful purpose would be served by
determining whether there were, in addition, subsequent
unlawful refusals to hire
MevA, on the other hand, relies on such evidence as
showing that it did in fact offer after January 5, to hire
Garceau, which offer was refused, and as therefore
negating any animus on its part toward him.24 However,
even if it be assumed, without deciding, that such an offer
was made, the only evidence adduced by MevA on the
point was that it was made by Greeley, one of Quigley's
field superintendents, in mid-January, that it related to a
job at Medway, which, because of its considerably greater
distance from his home, was less desirable to Garceau than
his former job, and that Greeley was willing to take
Garceau but, as soon as he learned that Bennett, a lineman,
was also available, Greeley expressed a preference for
Bennet,25 who was promptly referred and hired While the
foregoing testimony, if credited26 might be deemed to
indicate that Greeley, at least, had no adamant objection to
hiring Garceau, such testimony is not necessarily inconsis-
tent with the finding above that, on January 3, and 5,
22 As noted above, Local 104's contract had a no-strike clause
21 While one may well agree with MevA's position insofar as it implies
that Garceau's objections to the emergency action taken by the supervisors
was ill-advised and less than statesmanlike and while I have for that
reason dismissed certain allegations against the Unions (see discussion in
the text, below), it is well settled that the protected status of employee
action does not depend on the wisdom or unwisdom thereof N L R B v
Washington Aluminum Co, 370 U S 2
24 While it is not contended that such alleged offer should toll backpay,
it may not be amiss to note that, since the only offer sought to be proved
was with respect to a job considerably farther from Garceau's home than
his Sandwich job, it may well he doubted that this constituted an offer of
reinstatement to his former or substantially equivalent job At any rate,
that is a matter which may best be resolved in the compliance stage of this
proceeding
Quigley declared that Garceau would never work for MevA
again . Quigley might have neglected to tell Greeley that
Garceau was persona non grata or Quigley might have been
prepared to relent, if no one but Garceau was available to
fill the vacancy. In view of this, as well as the aforenoted
discrepancies between the accounts of the matter given by
Greeley and Loughran, I do not regard the foregoing
evidence as requiring rejection of that offered by the
General Counsel that Garceau was declared by Quigley to
be persona non grata, particularly in view of Loughran's
own admission to his International representative, as found
above, that MevA had refused to accept referrals of
Garceau on three occasions.27
Accordingly, upon the preponderance of the evidence, it
is concluded that Respondent discharged Garceau because
of his concerted activity in proposing and signing the
charges against the supervisors, and that it thereby violated
Section 8(a)(1) of the Act.
2. As to the Unions
As already related, the amended complaint alleged
various violations by Local 104 and its parent, IBEW, all of
which were struck at the hearing. In his brief, the General
Counsel moved that such allegations be reinstated. As a
result of the orders of August 25 and September 8, this
motion was granted in part and denied in part. The reasons
therefor are next discussed.
The amended complaint alleged that the IBEW and
Local 104 had violated Section 8(b)(1)(A) by arbitrarily and
invidiously refusing to process (1) Garceau's grievance
concerning his layoff and (2) his "grievance" over the
performance of unit work by supervisors. As to both of
these matters, the General Counsel relies (a) on the decision
in Vaca v Sipes, 28 which affirmed the right of an employee
to recover damages in an action at law from his bargaining
representative on the ground that it had not discharged the
duty implicit in its statutory status as such representative to
afford proper representation in a grievance proceeding;
and (b) on the position of the Board majority in Miranda 29
that failure of a union properly to discharge its duties as a
bargaining representative may constitute a violation of
Section 8(b)(1)(A) This latter position has been consistent-
ly rejected by two Board members in subsequent decisions,
and intervening changes in the composition of the Board
have left the current status of Miranda in doubt. However,
as an alternative ground, the General Counsel relies on the
wellsettled rule that a union violates Section 8(b)(1)(A)
where it fails to represent an employee fairly in grievance
matters in reprisal for conduct of the employee protected
by Section 7 of the Act.30
e, The preference was explained on the ground that linemen were more
versatile than equipment operators However, they were also more
expensive, receiving 65 cents more per hour
26 Although Greeley' s testimony was in the main corroborated by
Loughran , there were material discrepancies between both versions, the
most significant being that, unlike Greeley, Loughran did not testify that
Garceau was identified by name to Greeley
27 Presumably, at least two of these referrals were in addition to the one
described above
2N 368 U S 717
29 Mi,unda fuel (ii 140 NLRB 181, enforcement denied 362 F 2d 171
(C A 2) Accord Local No 12, 150 NLRB 312 enfd 368 F 2d 1010 (C A
5). Hughes Tool Co, 147 NLRB 1573
su Automotive Plating Corp. 170 NLRB No 211, and cases there
cited
MEVA CORPORATION 37
As to the allegation concerning the Unions' failure to
process Garceau 's discharge grievance , one is confronted at
the outset with the fact that on its face that grievance had
no merit , since , according to his own testimony, the burden
of Garceau's complaint to Loughran and Eaton was that
he, a member of Local 104, had been laid off, whereas
nonmembers had been retained . Patently , the contract did
not, and could not lawfully , require that , in effecting
layoffs, MevA discriminate on the basis of union member-
ship Even if Garceau's foregoing complaint be construed
as referring to the contract provision requiring that
"temporary employees" - i.e. direct hires-be laid off
before those hired through the Local, there was no evidence
that MevA had any such temporary employees at the time
of Garceau's layoff In fact, it is undisputed that the only
ones that Garceau thought were temporary employees
(Phillips and J. Kennison) had actually been referred by
Local 104, and at the hearing the General Counsel in effect
conceded that there was no merit in Garceau 's complaint
that there were "temporary" or "non-union" employees
who, under the contract, should have been laid off instead
of him. However, in his brief the General Counsel makes a
contention , not advanced at the hearing , that Loughran
and Eaton well knew that the reason for Garceau's layoff
was his attempt to have Quigley and Lisenby disciplined by
Local 104 because of their breach of the contract, and that,
knowing this, Local 104 should have entertained the
grievance, notwithstanding the martistry of Garceau's
arguments in support thereof, and should have prosecuted
it to the hilt. Its failure to do so was, the General Counsel
urges, arbitrary and invidious and, hence, violative of
Section 8(b)(1)(A)
It is clear that under the contract a discharge for
complaining about a breach thereof was invalid 31
The Unions' only defense is that they had no reason to
believe that Garceau's termination was anything other than
a layoff for lack of work or that Garceau had any cause for
complaint other than that assigned by him. However, it had
been found that Garceau was in fact discharged because of
his connection with the abortive charges against the
supervisors. Steward Eaton admittedly knew of those
charges and that Garceau had instigated, as well as signed,
them, and, on the basis of Garceau's testimony, which I
credit, notwithstanding the contrary testimony of Eaton, it
is found that Eaton told Garceau on January 5 or 6 that
Loughran had torn up the charges 12 Accordingly, I reject
Loughran's denial that he knew anything about those
ii Article I of MevA's contract with Local 104 accords MevA the right
only ' to discharge for proper cause or to relieve employees from
duty because of lack of work or for other proper and legitimate reasons"
Art IV sec 9, specifically forbids discharge of an employee for
complaining about an alleged violation of the contract
12 Eaton insisted at the hearing that it was he, and not Loughran, who
did away with the charges, that he so informed the employees, and that he
disposed of them in the morning of January 5. when Loughran disclosed to
Eaton for the first time that he had authorized the supervisors to drive the
vehicles In resolving credibility here, 1 have relied not only on demeanor
but also on the fact that Garceau's version is at least partly corroborated
by Dechene's testimony that, a few days after January 3 Eaton stated that
he had been told that the charges against the supervisors had been
destroyed
31 Although Eaton supported Loughran's denial that he had been
informed of the charges by Eaton, such denial was marred by considerable
vacillation and equivocation
charges prior to the instant proceeding and find that, as
Eaton admitted to Garceau, by January 6, Loughran had
learned of the charges and destroyed them.33
Moreover , having been present on both occasions that
Quigley told Garceau he would never work for MevA
again , Eaton could not have failed to infer therefrom that
the reason assigned for the layoff was pretextual, and,
absent any other apparent motivation , it would not have
taken any great ingenuity to deduce that the true reason
was the initiation by Garceau of the charges against the
supervisors . Even apart from this , it is difficult to believe
that Loughran was too obtuse that it did not occur to him,
after MevA had thrice rebuffed his efforts to refer Garceau,
that there might be some connection between this
circumstance and the filing of the charges . Indeed , the fact
that Loughran was reluctant to state to Garceau and
Saunders the reason given by MevA for rejecting Garceau
indicates that Loughran was apprised of the true
reason-namely , Garceau 's connection with the charges 34
There is thus presented the question whether a union may
justify a refusal to process a grievance , which it knows, or
has reason to know , is valid , on the ground that the
employee happened to assign to the union an untenable
basis for his grievance It seems clear that for a union to
seek to evade its responsibilities on such a technical ground
would not comport with the duty imposed upon it by Vaca
v Sipes, supra, that , in serving its constituents , it "exercise
its discretion with complete good faith and honesty and
avoid arbitrary conduct."35 It follows that, in rejecting
Garceau's layoff grievance despite its awareness of
meritorious grounds for contesting his termination, Local
104 failed to afford him proper representation within the
rule of Vaca v. Sipes It seems clear also that under the view
of the Board majority in Miranda such failure would
infringe upon Garceau's right under Section 7 to proper
representation by his bargaining agent, and would therefore
constitute a violation of Section 8(b)(1)(A).
Moreover, viewing the matter from the standpoint of the
Automotive Plating, rule, one is struck by the fact that, as
noted above ( fn 34), in filing charges against the
supervisors for conduct which had been expressly author-
ized by Loughran, Garceau was basically challenging the
propriety of such action by Loughran. Since this circum-
stance could not have endeared Garceau to the hierarchy of
Local 104, the finding is warranted that resentment of
Garceau's concerted activity in connection with the charges
was the reason for the otherwise inexplicable indifference
ii Loughran ' s reluctance to disclose that reason and his alignment with
MevA in the matter are understandable when one considers that, by
charging Quigley and Lisenby with misconduct as union members in
operating the vehicles, Garceau was, in effect, challenging the propriety of
Loughran 's action in authorizing such operation
i" The Unions ' brief asserts that their representatives were not "lawyers
or trained investigators" and hence should not be held responsible for
failing to uncover matters not disclosed to them by Garceau The short
answer to this is that there was no need for trained investigators to uncover
such matters since Eaton was present when Quigley, in effect , admitted
that the reason given for Garceau 's layoff was pretextual and it has been
found that, even apart from any report he may have received from Eaton,
Loughran had good cause to believe that such was the case from his own
conversations with MevA representatives Whether absent such actual
notice of the facts Local 104 would have been obligated to look further
into the reasons for Garceau 's layoff is a question which I need not, and do
not decide
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Eaton and Loughran toward Garceau's patently sham
layoff and his grievance on account thereof. It follows that
Local 104 violated Section 8(b) (l)(A) under the authority
of Automotive Plating, as well as Miranda 36
However, there is insufficient evidence that any repre-
sentative of the parent union, IBEW, knew of the true
reason for Garceau's discharge or authorized or approved
the conduct of Local 104's representatives in failing to
utilize their knowledge of that reason to support Garceau's
grievance. Accordingly, it will be recommended that this
allegation against IBEW be dismissed
As to the alleged "grievance" over the performance of
unit work by supervisors, it is clear from the record that,
although the General Counsel attempted to assimilate
Garceau's complaint on that score to a grievance over a
breach of contract,37 and although Garceau occasionally
referred to his complaint as a "grievance," what Garceau
intended at the time was not to present to management a
grievance over a breach of contract but to invoke
disciplinary action by Local 104 against Quigley and
Lisenby, as members of the Local, for violating the
obligation imposed upon them by the constitution of IBEW
to honor the Local's "working agreement" with MevA.311
Any doubt on this point was dispelled by Garceau's
admission at the hearing that his purpose in signing the
document prepared by Eaton was to have the two
supervisors brought up on "charges" before Local 104's
executing board (which is empowered by IBEW's constitu-
tion to hear charges against members of the Local) and to
impose such disciplinary action as it saw fit, whether in the
form of a fine or expulsion from the Local. Vaca v. Sipes
and Miranda have no apparent relevance to the duty of a
union to entertain charges by one member against another
but only to its duty to represent an employee vis-a-vis his
employer. This is so, because Section 9 of the Act, from
which the duty of fair representation has been derived (see,
Miranda, supra), constitutes unions the exclusive represent-
ative of employees in dealing with their employers, and
makes no reference to the authority of unions to adjudicate
differences between their members That authority stems
from union constitutional provisions and not from the Act.
It may, nevertheless, be urged that, in refusing to
entertain the charges, Local 104 interfered with a form of
concerted activity protected by Section 7-namely, the
voicing of a protest by Garceau and others, through the
medium of the charges, against the alleged violation of
employee rights by the supervisors; that, by refusing to
entertain those charges, Local 104 discouraged or stifled
such protest, and that it did so out of resentment of the
temerity of Garceau in exercising his protected right to
challenge through such charges the propriety of Loughran's
authorization of the supervisors to perform unit work. If the
1', Because of the foregoing considerations I issued an order on
September 8 reinstating par 22(a) of the complaint The Unions having
disclaimed any desire to present evidence with respect to that allegation,
the hearing was closed by order of September 25
17 Art VI sec 33 of Local 104 's contract forbade supervisors to
perform any unit work
^s See art XXVII , sec 1(3), of IBEW ' s constitution ( Resp Unions Exit
I)
4O The General (ounsel contends that in disposing of the charges,
Loughran failed to follow the mandatory procedures prescribed by the
constitution of IBEW for processing charges against members of its locals
rejection of the charges was for that reason, there would be
a violation under Automotive Plating, supra However, by
the same token, there would be no violation under
Automotive Plating, if the charges were rejected because of
the bona fide belief of Local 104 that they were totally
lacking in merit. While it has been found supra, that
Loughran did in fact harbor resentment against Garceau
because of his temerity in instigating the charges and that
this motivated Loughran's refusal on January 5 to entertain
Garceau's grievance over his discharge, it does not
necessarily follow that such resentment motivated Lough-
ran's rejection of the charges, themselves. The charges were
predicated on the view that the supervisors had breached
the contract by driving the struck vehicles. However, any
such breach had been specifically waived by Local 104,
through Loughran, in order to resolve the crisis created by
the employees' own breach of contract in engaging in a
work stoppage. Both Eaton and Loughran indicated at the
hearing that, because of these circumstances, they did not
believe that Garceau had just cause for complaint against
the supervisors. Such belief would seem to have been amply
justified and would adequately explain the rejection of the
charges 39
For the foregoing reasons I adhere to my ruling at the
hearing striking the allegation of the complaint concerning
the failure of the Unions to prosecute the charges against
Quigley and Lisenby 40
111. THE REMEDY
It having been found that MevA and Local 104 engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1) and 8(b)(1)(A), respectively, it will be
recommended that they be directed to cease and desist
therefrom and take appropriate affirmative action.
It having been found that MevA discriminatorily
discharged Garceau on January 3, I shall recommend that
it be ordered to make him whole for any loss of pay
resulting therefrom, less his net earnings. Such backpay
shall be computed on a quarterly basis in the manner
prescribed in F W Woolworth Company, 90 NLRB 289,
and shall, include interest at 6 percent as provided in Isis
Plumbing & Heating Co, 138 NLRB 716. It will also be
recommended that MevA be ordered to offer to reinstate
Garceau, if it has not already done 50,41 to his former job
or, if it no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges
As for Local 104, although the General Counsel
disclaimed at the hearing any interest in the assessment of
backpay against Local 104, he urges in his brief that such
Even if that be so, which I do not decide, such action might well have been
dictated by a belief on Loughran's part that the charges were so patently
invalid that the departure from normal procedure was warranted
In any event in view of the breadth of paragraph B 1(a) of the
recommended remedial order, below, any finding of a violation here would
seem redundant
"" Furthermore as to the IBEW, there was no evidence that it took any
part in the decision not to prosecute the charges nor that it had any
authority to overrule such decision
11 See the discussion above in the text of the exchange between
Loughran and Garceau about ajob with MevA at Medway
MEVA CORPORATION
assessment be made, citing the Board's Supplemental
Decision in Automotive Plating 42 There, the Board
majority required the respondent union to remedy its
unlawful refusal to process the grievance of a discharged
employee by compensating him for any loss of earnings he
might have suffered from the date he requested the union to
present a grievance on account of his discharge until the
union fulfilled its duty of fair representation or the
employee obtained substantially equivalent employment,
whichever occurred sooner. However, in that case, the
union was the only respondent, there was no allegation of
discrimination by the employer, and the rationale of the
Board majority was, in effect, that, since the union had
unlawfully withheld its services, any doubts as to whether
the employee would have been reinstated had the union
properly represented him should be resolved against it.
Here, however, there is no need to invoke any such novel
remedy, based on speculation as to the possible conse-
quences of Local 104's derelictions with respect to Garceau.
For, imposition of backpay liability on MevA will fully
compensate Garceau for any loss of earnings which
demonstrably flowed from its action in discharging him.43
Accordingly, no backpay order against Local 104 will be
recommended.
42 183 NLRB 131
41 Local 104's rejection of Garceau's grievance could have contributed
to his loss of earnings only on the assumption that the prosecution of his
grievance would have resulted in his reinstatement with backpay which
assumption has no clear support in the present record While Garceau
CONCLUSIONS OF LAW
39
1. MevA is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 104 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Garceau on January 3, because of his
concerted activities, MevA has violated Section 8(a)(1) of
the Act
4. By refusing to process under the contractual
grievance procedure Garceau's grievance over his dis-
charge, for arbitrary and invidious reasons, Local 104
violated Section 8(b)(1)(A) of the Act under the rule of the
Miranda case, supra
5 By refusing to process such grievance in reprisal for
Garceau's role in the filing of charges with Local 104
against supervisors for alleged breach of contract, Local
104 violated Section 8(b)(1)(A) under the rule of the
Automotive Plating case, supra.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
testified credibly that Eaton told him on January 3 that Loughran had
approved Garceau's "layoff " it does not necessarily follow that MevA
would not have acted absent such approval or that the layoff would have
been rescinded, if Loughran had submitted a grievance on behalf of
Garceau