Macdonald Miller Co.

National Labor Relations Board - Board Decisions

Nov 25, 1985

277 N.L.R.B. 701 (N.L.R.B. 1985)

MACDONALD MILLER CO.
MacDonald Miller Company and United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, Local No. 32. Case 19-CA-16489
25 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 16 August 1985 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filled exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.'
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,2 findings, and
conclusions3 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I We grant the General Counsel's unopposed motion to correct the
record
2 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
live law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir.
11951). We have carefully examined the record and find no basis for re-
versing the findings.
3 Member Babson adopts the judge's conclusion that the Respondent's
conduct was not inherently destructive Accordingly, he finds it unneces-
sary to pass on the judge 's discussion of an employer 's burdens under
JVLRB v Great Dane Trailers, 388 U.S 26 (1967), and NLRB v. Fleetwood
Trailer Co., 389 U S. 375 (1967), in cases involving inherently destructive
conduct
Ronald J. Knox and George I. Hamano, for the General
Counsel.
Judd H. Lees (Williams, Lanza, Kastner & Gibbs), of
Bellevue, Washington, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Seattle, Washington, on De-
cember 12 and 13, 1984, and January 22 and 23, 1985,
pursuant to a complaint and notice of hearing issued
March 29, 1984, by the Regional Director for Region 19
of the National Labor Relations Board. The case was
previously before the Board on my granting Respond-
ent's Motion for Summary Judgment; it was subsequently
701
remanded for hearing on the merits. The complaint is
based on a charge filed by United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local No. 32
(the Union or Local 32) on February 3, 1984. The com-
plaint alleges that MacDonald Miller Company (Re-
spondent) has engaged in certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act.
Issues
The principal issue is whether or not Respondent dis-
charged two individuals, Raymond Atkinson and Ken-
neth Dulaney, for reasons prohibited by the Act, i.e., be-
cause they were the subjects of a grievance filed by the
Union, because of their union steward status and/or ac-
tivities, or because of their other protected activities. A
threshold issue with respect to Atkinson is whether or
not he was a supervisor within the meaning of Section
2(11) of the Act at the time he was discharged.
FINDINGS OF FACT
1. THE EMPLOYER' S BUSINESS
Respondent admits it is a State of Washington corpo-
ration headquartered in Seattle where it is engaged in the
building and construction industry. It further admits that
during the past 12 months its gross volume of sales of
goods and services exceeded $500,000 and that its inflow
and outflow both exceeded $50,000. It admits, therefore,
and I find, that it is and has been at all maternal times an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties have stipulated, and I find, that the Union
is and has been at all material times a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Partin pants
Respondent is a large mechanical contractor perform-
ing both construction and maintenance work in the Seat-
tle area. It has collective-bargaining agreements with
various building trades unions, including the Electrical
Workers, the Sheet Metal Workers, the Laborers, and
the Charging Party, Pipefitters Local 32. Apparently
most of its business is ordinary mechanical contracting,
i.e., the installation of pipes, air ducts, and electrical
wiring. One aspect of its business is the installation of
heating and air-conditioning equipment in buildings
under construction. An adjunct is the business of main-
taining and servicing the forced-air equipment after its
installation . To facilitate this operation Respondent has
divided its business into departments which, for our pur-
poses, will be described as the construction department
and the refrigeration department. Although not particu-
larly germane here, the construction department is divid-
ed into plumbing, pipefitting, sheet metal, and electrical
divisions. The refrigeration department principally per-
forms repair and maintenance of existing heating/air-con-
277 NLRB No. 79
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditioning units. However, it, too, is engaged in construc-
tion in the sense that some of its people have been regu-
larly assigned to install and connect forced air units in
buildings under construction. Thus, although these
people have been assigned to the refrigeration depart-
ment, they did traditional construction work as well as
service and maintenance work. For purposes of conven-
ience the construction work performed by the refrigera-
tion department personnel will be referred to as "refer
construction." In the Seattle area, Respondent has gener-
ally assigned its refer construction work to two people,
the alleged discriminatees, Atkinson and Dulaney. How-
ever, on occasion, others have been assigned as well.
The refrigeration department employs approximately 20
people, although the record does not make clear the geo-
graphical assignment of these individuals. Apparently
some are assigned to other cities such as Tacoma or
Yakima and are stationed there.
The refrigeration department employees in greater Se-
attle are represented by the Union. The Union also rep-
resents Respondent's pipefitters who perform traditional
plumbing and pipefitting construction work. These are
separate bargaining units and in the past have been cov-
ered by separate collective-bargaining contracts. The re-
frigeration department employees, i.e., refrigeration me-
chanics including those engaged in refer construction,
were covered until 1982 by a collective-bargaining con-
tract known as the refrigeration agreement. Plumbers
and pipefitters were covered by another agreement
known as the pipefitters contract. In addition to those
two contracts with Local 32, Respondent also has a col-
lective-bargaining contract with the Union's parent Inter-
national Union. That agreement is known as the National
Agreement. It had been Respondent's practice during the
life of the refrigeration agreement to pay those employ-
ees assigned to refer construction work the normal rate
under that agreement . So long as that agreement was
viable, the Union did not disagree with that practice for
it was expressly permitted.
For reasons not shown in the record, the most recent
refrigeration agreement was allowed to expire in 1982
and has not been renegotiated. However, the Union
thereafter did negotiate a new master refrigeration agree-
ment with other employers. Because it could not reach
an agreement Respondent chose to invoke its right under
the National Agreement to incorporate certain terms of
the master refrigeration agreement and to apply them to
its refrigeration mechanics. From Respondent's perspec-
tive this permitted it to pay the refrigeration mechanics
the current union scale and to continue its practice of as-
signing mechanics to refer construction work paying
them the refrigeration mechanics scale in accordance
with its past practice. As will be seen, the Union did not
view Respondent' s analysis as appropriate.
Respondent's chief executive officer is Vice President
and Part-Owner Virgil Timmerman. Timmerman is the
individual who negotiates the collective-bargaining con-
tracts with various unions. Reporting to Timmerman is
Production Manager Steve Lovely. Although there has
since been a reorganization at the time of the incident in
question, Lovely was responsible for the productivity of
all the building trades as well as the refrigeration depart-
ment. The refrigeration department itself was under the
direction of Bob Estes, the field service supervisor. Until
his transfer to the sales department in November 1983,
Estes oversaw both the service and construction divi-
sions of the refrigeration department. In March 1983,
some 8 months before his transfer to sales, with the ap-
proval of higher management , Estes promoted three re-
frigeration mechanics to foremen. Two of these, Lyle
Schramm and Gary Kuhlman, became field service fore-
men; the third, Ray Atkinson, one of the alleged discri-
minatees , became construction foremen. Later, in No-
vember, upon Estes' departure, Schramm replaced Estes.
It was Schramm who was the head of the department in
January 1984 when the discharges in question occurred.
The union officials involved are Floyd Sexton, the
business manager/financial secretary, and John Fitzger-
ald, business representative. Since 1978, shortly after he
was hired, Atkinson had been the Union's shop steward
for the refrigeration department. In late November or
early December 1983, after Atkinson had become con-
struction foreman, Dulaney was elected shop steward at
a meeting called by Atkinson. There is a dispute with re-
spect to whether or not Dulaney was appropriately des-
ignated steward and whether Respondent knew he had
official steward status.
B. Ray Atkinson
Atkinson testified that he was hired in May 1978 as a
service mechanic although Business Representative Fitz-
gerald says that the Union's records show that he was
dispatched as a foreman. It is clear that, whatever his
status, at some point Atkinson was paid the foreman rate
even before he was made a foreman based upon Re-
spondent's decision to pay a premium in order to keep
qualified service mechanics from leaving. Atkinson de-
scribed his duties as repairing heating/air-conditioning
units, including what he describes as warranty work. He
says he also performed some startup, some new construc-
tion, and some remodeling work, all of which Respond-
ent considers refer construction.
He testified that he learned he had been made refriger-
ation construction foreman in March 1983 by looking at
a company roster. He says no one actually approached
him about being a foreman until September when Lovely
asked him if he would like to be the foreman. Later he
says Estes also asked him. He remembers Estes asking if
there would be a conflict of interest with him being both
foreman and shop steward. He replied there would not.
He says in September Lovely gave him a written docu-
ment describing his duties. He claims, however, that his
responsibilities did not actually change except that in
November he began to attend meetings with the con-
struction department. He says when he was made a fore-
man he did not get an office like other foremen. Howev-
er, when listing the foremen who had offices, he listed
individuals who were superintendents of various trades.
He did not describe whether his alleged co-foremen
Schramm, Kuhlman, or even Estes had offices. He testi-
fied that, prior to his promotion, jobs were assigned
through the company dispatcher and afterwards jobs
continued to come from the dispatcher. He did concede
MACDONALD MILLER CO.
that new construction jobs came out of the supervisors
meetings which he was attending.
Atkinson asserts he did not assign anybody to con-
struction work, although he did recommend Dulaney to
perform the Bellevue Square job in February 1983. He
says that occurred well before he became foreman. He
admits, however, that he went to the Bellevue Square
job on a weekly basis to check on its progress. It was a
large mall project which was still in progress in 1985
during the course of this hearing. Nonetheless, Atkinson
denies supervising employees, saying he had no hire and
fire authority, no ability to discipline employees, and no
authority to grant time off. Moreover, he had the same
hours and same lunch periods as anyone else.
Atkinson testified that he began performing refer con-
struction work in late 1982 and throughout 1983 even
though he was still a service mechanic. He says he basi-
cally did that work by himself but others occasionally
helped, including Dulaney. He remembers Dulaney
worked the Bellevue Square job by himself while he
worked by himself on the Puget Power Company
project.
On cross-examination, Atkinson was shown Respond-
ent's Exhibit I which is a handwritten job description for
the three foremen who were promoted in March 1983.
He conceded that Estes "could have given the document
to him in March but couldn't recall." He says it is "even
possible" that he received the document along with the
roster sometime in early 1983.1
According to Department Head Estes, Atkinson had
performed "primarily" construction work for some time.
Estes testified that he first spoke to Atkinson about be-
coming a foreman in February 1983 and subsequently
wrote Respondent's Exhibit 1. He showed it to the three
individuals involved, including Atkinson, to ask for their
input. He specifically remembers Atkinson agreeing to it
as "okay." During their discussion he remembers telling
Atkinson that one of his duties would be to work with
him to maintain manpower levels and to let him know if
additional crew was needed. Otherwise, assignments
would go through the dispatcher. Estes says a couple of
days later Atkinson confirmed he would take the job.
Estes points out that because Atkinson was already being
paid the foreman scale, no wage increase was given him.
He said there were at least seven or eight mechanics
then receiving the premium rate and about that time Re-
spondent reduced their rate to journeyman scale. It con-
tinued to give the foreman rate to the three who had just
been made foremen.
Estes also testified that in March he prepared a memo
stating that Schramm, Kuhlman, and Atkinson had been
made foremen and distributed that document to the crew
with their paychecks. He also announced their promo-
tion to the crew during a crew meeting. He told them
that in construction "Ray was the boss." He says Atkin-
son had the authority to tell the dispatcher who he
wanted and where and when he wanted him. He notes
that ordinary journeymen would occasionally ask the
dispatcher for additional help if they needed it, but At-
' G C Exh. 17 is a similar but typewritten document which Atkinson
received from Lovely in September
703
kttson, unlike the journeymen, could require it, not
simply request it. Estes says Atkinson began attending
the construction foremen meetings in March 1983, not
November. He says they attended the meetings together
for about 6 to 8 weeks while Atkinson familiarized him-
self with what was required. After Atkinson became ac-
climated, Estes ceased going to the meetings. Estes notes
that neither Schramm nor Kulhman attended because
they were service foremen, not construction. At these
meetings, each construction project was reviewed. They
examined the hours spent as well as the hours remaining.
Estes says this was the means by which the construction
people in the refrigeration department learned of new
construction projects. He states it was the construction
foreman's duties to do blueprint takeoffs-i.e., determine
the amounts of pipe, fittings, etc. According to Estes the
job necessarily involved some purchasing and that it was
up to the foreman to decide the amount of manpower
necessary, as well as to establish a starting date to co-
ordinate with the construction trades.
Atkinson agrees that his duties included ordering mate-
rial, although he limited that function to small jobs, set-
ting it up, and coordinating it. He says purchasing was
mainly performed by the salesman, but agrees he did
blueprint takeoffs. Respondent's Exhibit 1 says that one
of his duties was to order cranes. Estes says Atkinson did
so. Atkinson denied ordering any cranes, yet one of his
work orders demonstrates that at the very least he ar-
ranged the use of a crane from a contractor already on
the jobsite. With respect- to his seeking men from dis-
patch, Atkinson implies that he did not issue directives,
but made requests. He agrees that he has asked for the
assistance of specific individuals for construction work.
These included Dulaney and another individual named
Culver. He says, however, that sometimes the dispatcher
did not send him the person he requested.
At some point, apparently late in November, Union
Business Representative Fitzgerald decided that a new
steward was required. He testified: "Atkinson, being
placed in supervision as a foreman would not be allowed
to be shop steward." Indeed, there is a contractual provi-
sion in the national agreement so stating. Accordingly,
Fitzgerald directed Atkinson to elect a new steward.
With respect to Atkinson's alleged supervisory status,
as set forth by the foregoing facts, I conclude that he
was a statutory supervisor. There are several consider-
ations. First, there is the credibility conflict to resolve
between Atkinson and Estes; the documentary evidence
is helpful here. I was most unimpressed with Atkinson's
hedging when describing his receipt or awareness of Re-
spondent's Exhibit 1. Though denying its receipt, he left
open the "possibility" that Estes had given it to him. In
the final analysis, his version concedes that the document
was probably shown him in March although his words
appear to deny it. That suggests that Atkinson is shading
the facts regarding his supervisory authority and trying
to cast himself most favorably as lacking supervisory au-
thority. It is true that he did not engage in daily `hands
on" authority over other individuals assigned to refer
construction work. Nonetheless, it is clear that beginning
in early 1983 he virtually assigned Dulaney to the Belle-
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vue Square job and thereafter, on a weekly basis, he
went to the site to observe the work. Atkinson says he
did so because he had lined the job out, but as he had
been assigned to the Puget Power site, he could not
complete it. Consequently, he felt responsible for Belle-
vue Square and his jobsite visits were simply a fulfill-
ment of his own sense of responsibility.
Yet, his lining the job out is fully consistent with his
duties as a foreman as is his weekly oversight of Dulan-
ey's work there. Furthermore, it is likely that Atkinson
was observing that job so he could report its progress in
the weekly construction meetings he was supposed to be
attending. I recognize that he denied attending any such
meetings until November, some 8 months later, but do
not believe he can be credited on the point. Estes and
Lovely both testified that Atkinson began attending
those meetings shortly after he became the construction
foreman and both were in a position to know.
Furthermore, Atkinson retained the foremen wage
when the other journeymen who were not made foremen
lost their premium pay. Accordingly there is a wage dif-
ferential between Atkinson and other journeymen. It is
true that hire-and-fire authority remained with Estes, yet
Estes specifically told Atkinson that he was under a duty
to provide Estes with manpower information so that hire
and fire decisions could be made. Thus, Atkinson clearly
had the authority to recommend the hire or the dis-
charge (or the transfer) of personnel within his area of
responsibility. The need for the exercise of that responsi-
bility was slim and probably not much used. Estes does
recall a situation where he says he decided not to hire
somebody from the hiring hall based on Atkinson's rec-
ommendation; Atkinson denied it, saying he did not
know the skills of the employees in the hall well enough
to make such a recommendation. Even so, the authority
existed.
Furthermore, Atkinson concededly had job prepara-
tion responsibility and was the Respondent's representa-
tive on those jobsites for the purpose of dealing with the
contractor and/or the customer. He was fully capable of
and knew he could exercise independent judgment in
various areas . These included the purchase of material
and the ordering of various types of equipment. His self-
effacement here is most suspect as his own work order
reflected that he arranged for the use of a crane almost
immediately after he denied ever having ordered such a
piece of equipment. It may be true that he did not have
to issue a purchase order or spend great amounts of
money to obtain the use of that crane but, if nothing else,
the incident demonstrates that he had the independent
authority to commit certain of Respondent's credit for
such equipment. Presumably the contractor who had the
crane on site did not provide its services to Respondent
out of a sense of magnanimity.
The incident also demonstrates another facet of the
foreman's responsibility as set forth in Respondent's Ex-
hibit 1. One of the construction foreman's duties was to
coordinate with the other trades. When Atkinson ar-
ranged for the use of the crane to set the piece of equip-
ment on the job in question, he was no doubt exercising
that responsibility.
Finally, there is Fitzgerald's admission that Atkinson
was a supervisor. He knew that it was a conflict of inter-
est, whether it was a breach of the contract or not, for
Atkinson to be both shop steward and foreman at the
same time. To Fitzgerald, being a foreman was tanta-
mount to being a statutory supervisor even if it was a
bargaining unit described job. Thus, on learning that At-
kinson had became foreman, he directed Atkinson to re-
linquish his stewardship duties.
Accordingly, based on all of the foregoing circum-
stances, I conclude that Atkinson was a supervisor and
had been since March 1983. Even Atkinson concedes
that he acceded to the job as of November 1983. As will
be seen shortly, that was well before the discharge of
January 25, 1984, which is alleged to be unlawful.
C. The Grievance
As noted previously, during 1983 Respondent contin-
ued to operate its refrigeration department in the absence
of a refrigeration agreement. It believed the National
Agreement permitted it to incorporate the wages and
hours of the area refrigeration agreement. This resulted
in some discussions between Respondent's vice president
Timmerman and Union Business Manager Sexton. Ac-
cording to Timmerman, Sexton's position regarding the
applicability of the refrigeration agreement changed from
time to time. In late 1982 and early 1983, according to
Timmerman, Sexton was demanding that Respondent
sign the local master refrigeration agreement, asserting
that the National Agreement did not apply in Local 32's
jurisdiction. In September 1983, according to Timmer-
man, Sexton said Respondent could use the National
Agreement and did not have to sign the local refrigera-
tion agreement.
Sexton partially agrees, but adds in early 1983 there
was a meeting at Respondent's office which an Interna-
tional representative attended. Sexton agrees that he had
complained to the International Union about Respond-
ent's use of the National Agreement. He claims Timmer-
man agreed during this discussion to interpret it the way
the International wished him to. Sexton testified that the
meeting ended with an agreement that the National
Agreement would cover service and maintenance but not
new construction. At that time, he says, Timmerman
agreed to pay the refrigeration mechanics performing
refer construction the "MCA rate," i.e., the pipefitters
rate.
Timmerman agrees that he did say that he would pay
the rate the International decided was appropriate, but
says he has never actually agreed to pay the refrigeration
mechanics the pipefitters rate.2 There is no evidence in
this record that the International ever made a ruling de-
ciding the question as it applied to the refer construction
work.
In any event, Sexton determined, in the absence of a
refrigeration agreement, that employees performing refer
construction work should be paid the pipefitters rate, for
it was construction work as described by the pipefitters
E Even his later decision to pay that rate was not an "agreement", in-
stead it was intended as a temporary resolution pending the grievance
MACDONALD MILLER CO.
contract.3 Supporting Sexton's contention was his aware-
ness that both individuals performing the refer construc-
tion work, Atkinson and Dulaney, had been dispatched
as "building trades qualified" refrigeration mechanics.
Under the Union's parlance this is a significant skill
factor because they are to be differentiated from refriger-
ation mechanics who are only "metal trades qualified."
Furthermore, at all times Business Representative Fitz-
gerald has been operating under the belief that refer con-
struction work should be performed by pipefitters, not
refrigeration mechanics. Indeed, he first thought it was
improper to assign that work to refrigeration mechanics
even during the life of the refrigeration contract. He tes-
tified that in the summer of 1982 he saw refrigeration
mechanics doing refer construction work and, although
he later learned that the contract permitted it, nonethe-
less regarded it as "unusual." Later, during a discussion
with me, he described the practice as "unexpected " At
one point, however, he denied he had ever told Re-
spondent it "could" use pipefitters to do the work.
On July 18, 1983, the Union mailed a memorandum to
all its members working for Respondent as journeymen
refrigeration mechanics. That memorandum recited the
pipefitters scale noting that it was $1.57 per hour higher
than the refrigeration rate. It concluded by asking each
employee to keep track of time spent working on refer
construction, the dates of such work, and the name and
address of each job. At the end of each month, the
member was to provide the information to Fitzgerald.
Atkinson and Dulaney received it; so did Schramm, then
both a union member and a service foreman.
Although Atkinson was shop steward at the time, he
made no effort to keep the records as requested nor did
he report any problems to Fitzgerald. Dulaney testified,
however, that sometime in August he was working at
the Bellevue Square jobsite when he encountered Fitz-
gerald . He told Fitzgerald that he was not getting any
extra money on refer construction work. Later, apparent-
ly in mid-November after a "prenegotiation" union meet-
ing,4 lie spoke to both Fitzgerald and Sexton about the
problem. They asked if he had received the proper pay.
He replied he had not. He also reported "a statement
Timmerman had allegedly made at a staff meeting to the
effect that he would not pay the higher rate as it was
competitively disadvantageous to do so. Both of these
conversations occurred prior to Dulaney being elected
shop steward.
By letter dated November 23, 1983, Sexton hand deliv-
ered what he characterized as a "request for a step 2
grievance meeting" in accordance with article VII of the
pipefitters contract. He asserted that Respondent had
violated articles IX and XI by failing to pay the proper
wages and fringes on new construction work.
3 Even if Sexton is correct regarding the nonapplicability of the Na-
tional Agreement to the refer construction work, it does not necessarily
follow that Respondent had lost its right to continue assigning that work
to service mechanics Sec 8(d) of the Act requires both parties to main-
tain the same working conditions even after a contract's expiration, until
a new agreement is reached or an impasse occurs The Union's dogged
insistence on applying the pipefitters contract to this work may well have
been a bad-faith act That, however, is unclear and in any event not
before me
" The area pipefitters contract was about to be re-negotiated
705
The grievance failed to name the affected employees
and skipped step 1, which required direct discussion be-
tween the aggrieved employee and his immediate super-
visor. As it was brought under the pipefitters agreement,
Timmerman did not immediately recognize it as having
anything to do with refer construction. His firm has
never considered that work to be pipefitters work. His
immediate response was to discuss the grievance with
Gordon Foy, the pipefitter superintendent. Their investi-
gation failed to disclose any wage complaints by pipefit-
ters. Also, the grievance did not describe the work in-
volved and contained no reference to refrigeration work.
Timmerman testified that the National Agreement, cov-
ering the refrigeration work, has a different grievance
procedure and does not incorporate the terms of the
pipefitters contract. From his point of view he was total-
ly in the dark about the purpose of the grievance.
Sometime later, Sexton telephoned him about the
grievance. Timmerman insisted Sexton start the griev-
ance at step 1 as required by the contract, but Sexton re-
sponded that he had the authority to skip step 1 and go
straight to step 2. They had an argument over whether
that was so and the two never met over the grievance:
In fact, Sexton never testified that the nature of the
grievance was actually discussed in the first telephone
conversation. Apparently, however, there were further
conversations between Sexton and Timmerman not spe-
cifically described in the record. According to Timmer-
man, beginning in June 1983 and continuing until the
January 25, 1984 discharges, he had at least a dozen con-
versations with Sexton about refer construction work.,
Timmerman says that Sexton has said that the construc-
tion work in question should be paid according to the
pipefitters agreement. Some of these conversatons oc-
curred after the grievance was filed.
Ultimately Timmerman handwrote some memos to
subordinates Lovely and Estes which he says constitute
his recollection of what Sexton wanted. In one, he stated
Local 32 did not want Respondent to use refrigeration
mechanics on refer construction work. He described the
dispute with the Union and then described what he char-
acterized as a temporary operating plan while he at-
tempted to work out the problem. He said to Lovely,
"To show good faith please use plumbers and fitters to
do this work until I get it resolved." He noted that the
change would mean Respondent would have to cut back
on the refrigeration crew saying, "That's what Local 32
wants." He went on to describe his own view of the
proper interpretation of the contract, concluding the
memo by repeating his directive that plumbers and pipe-
fitters be used on refer construction until the matter was
resolved. He ended stating, "You will have to let the
refer man go that's doing this work now."5
D. The Discharges
On January 25 Timmerman issued a typewritten
memorandum (G.C. Exh. 19) to Lovely which crystal-,
a The foregoing material is found in G C Exh 22, a three-page hand-
written document. The first two pages consist of the above-described di-
rect,ve The third page seems to be document drafted somewhat earlier
and contextually is not part of the first two pages
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lized what had been said before. After noting his exten-
sive involvement in negotiating the new area pipefitters
agreement Timmerman said due to that effort he had
been unable to resolve the refer construction grievance.
Because he was scheduled to be out of town from Janu-
ary 30 to March 5, and would be unable to handle the
problem himself, he directed that the work be done by
pipefitters under Foy's direction. Previously, Lovely and
the new refrigeration department foreman, Schramm 6
had investigated whether Foy's crew was qualified to
perform the work and had determined that it was.
Earlier Schramm had been alerted that the refer con-
struction work might have to be transferred. On January
8 he had made some notes to himself regarding the desir-
ability of retaining Atkinson. This included a list of he
what perceived to be Atkinson's shortcomings. These in-
cluded Atkinson's failure to advise dispatch of his loca-
tion, checking in and out from home, questioning if he
was putting in a full 8-hour day, some public relations
problems which had indirectly come to Schramm's atten-
tion, and finally some observations with respect to Atkin-
son's ability to get along with the rest of the crew. A
final observation was, "Ray makes comments to fellow
employees that M&M [Respondent] is anti-union , imply-
ing mistrust by using negative comments to induce mis-
trust."
There is no evidence that this document received any
scrutiny by Schramm's superiors. Indeed, he says he
gave it to no one. However, he agrees that the contents
of the memo played a role in his deciding that it would
be better to let Atkinson go. He admits that the last
remark, Atkinson's belief that Respondent was antiunion,
was "a consideration."
According to Schramm, it was he who "suggested"
that Atkinson and Dulaney be fired and eventually he
was the one who did terminate them. Clearly, however,
Timmerman and Lovely participated.
On the afternoon of January 25, Schramm separately
discharged both Atkinson and Dulaney. In each case he
gave them a copy of General Counsel's Exhibit 19 and
told them they were being released, giving them a termi-
nation slip along with their final checks. Atkinson asked
Schramm if there were any problems with his work.
Schramm replied there were not. He also supposedly re-
plied that he had been instructed not to say anything fur-
ther. Atkinson said he asked Schramm if he could per-
form service work (apparently admitting that his work
was primarily refer construction) but Schramm replied
he could not.
Atkinson's termination slip simply states that he had
been terminated by Timmerman. Its "for cause" box was
checked. There is no suggestion on the slip that he was
ineligible for rehire. Schramm testified, without contra-
diction, that a discharge for cause did not render one in-
eligible for rehire.
Dulaney's exit interview was similar. Schramm gave
him a copy of Timmerman's memo regarding the reas-
signment of work. Dulaney says he asked that the griev-
ance was about and Schramm replied that Dulaney knew
as much about it as he did. Dulaney then asked if the dis-
B Estes had been transferred to manage the sales department
charge was permanent or until the grievance was
worked out. Schramm said it was permanent. He says he
asked Schramm regarding the percentage of construction
work which he had actually performed but Schramm re-
fused to discuss it. He also asked Schramm if something
was wrong with his work and reports Schramm as reply-
ing he had been told to say as little as possible, yet
agreeing that Dulaney was a "good mechanic."
Dulaney's termination slip, like Atkinson's, had the
"for cause" box checked. Dulaney says he asked for an
explanation of why that box had been checked asserting
that its meaning was unclear. As a result, Schramm
wrote in the explanation section of the slip: "per griev-
ance from Local 32." The General Counsel has argued
that because the explanation portion of the slip is preced-
ed by the printed statement, "If not eligible for rehire
state reason:" that this is evidence that Dulaney had been
rendered ineligible for rehire. I do not agree. Had Du-
laney not asked for a further explanation, nothing would
have been written in that space. In that event, his termi-
nation slip would have been identical to that of Atkin-
son. I conclude that both men are eligible for rehire.
Although there appears to be a contract provision
which arguably requires Respondent to lay off employ-
ees in reverse seniority, both Timmerman and Fitzgerald
agree that in this industry employers do not follow the
practice. In essence, Fitzgerald finds nothing unusual
about this discharge insofar as the contract's seniority
clause is generally interpreted.?
Immediately after their discharge the two went to the
union hall in downtown Seattle to report what had hap-
pened. Only minutes before they arrived Timmerman
had left a meeting. There are varying accounts of what
Timmerman said shortly before he left at 5 p.m. as well
as differing recollections of the purpose of the meeting.
He says he left to catch a ferry;" Sexton and Fitzgerald
recall that he said he had an important meeting to attend.
Timmerman testified that the meeting had started at 2:30
that afternoon and was not a negotiation meeting; he did
not participate greatly. He says he had earlier told those
present at the meeting that he would have to leave at 5
p.m. and there was nothing particularly sudden about it.
He also testified that he did not mention the discharges
to those present because he did not know of them.9
9 The checkmark in the "for cause" box on the termination slip does
appear somewhat remarkable Yet, the reverse seniority clause can be
avoided contractually if the discharge is "for cause " Normally that
phrase is applied to employee competence or misconduct , not loss of em-
ployment due to lack of work. Even so, the phrase is vague enough to
credibly include the layoff here, which was, according to Respondent, to
comply with what it interpreted to be the Union's request Certainly the
request took it out of the "reduction in force" or "lack of work" catego-
ries.
S The ferry system is a major portion of the public transportation appa-
ratus in the Seattle area and I think it is fair to observe that the frequency
of departure is lengthy enough so that a missed ferry can create a great
inconvenience to a traveler.
8 I think that Timmerman is shading the truth here, because in his ear-
lier internal memos he referred to letting those individuals go who had
been performing refer construction work He knew that that included at
least Atkinson Nonetheless it may still be true that he did not know that
the discharges had occurred that very day
MACDONALD MILLER CO.
Sexton and Fitzgerald recall the incident somewhat
differently . Fitzgerald says the meeting began at 4:30
p.m. and that the employers and the Union were discuss-
ing "various aspects of the industry " as having a possible
Impact on the new pipefitters contract . Sexton says it
began at 3 p.m., that it was a negotiation meeting and
that the parties were within 15 minutes of settling the
contract . He says Timmerman 's departure disrupted set-
tlement . Both contend Timmerman had said nothing
about his need to depart at 5 p.m.'0
In fact, Fitzgerald and Timmerman agree with respect
to its purpose and it would appear that Sexton was em-
bellishing when he said negotiations would be settled in
15 minutes , except for Timmerman 's departure . Oddly,
however, Timmerman and Sexton nearly agree upon
when the meeting actually started and how long it
lasted. Frankly , I do not believe an analysis of this meet-
ing with respect to Timmerman's supposed guilty knowl-
edge of the discharges would add anything to the more
salient features of the case.
Nonetheless , there is one other factual matter which
appears to have some bearing on Respondent 's selection
of Atkinson and Dulaney for discharge . Approximately 2
weeks before these discharges , Respondent hired four re-
frigeration mechanics . The first was Patrick Riley on
January 13. On January 17, Larry Boos and Jack Jensen
were rehired and on January 18 Andrew Wade was
hired. All were referred by the Union as building trades
journeymen refrigeration mechanics . Nonetheless, all
were assigned to the service division of the refrigeration
department . One, Riley, was laid off approximately 3
weeks later after he did not work out . Schramm says
Riley told him he preferred to work in refer construction
rather than service . When he decided to let Riley go he
permitted Riley to negotiate the termination slip lan-
guage which stated that he was being discharged for
"lack of construction work ," though he had never been
assigned such work. Of the other three, Jensen lived in
Yakima and was stationed there. Timmerman says Boos
was rehired because he had boiler experience necesssary
for the winter season. He also says Wade had been
sought by Schramm for over 2 months but had been
working for another firm . Timmerman 's testimony here
is uncontradicted.
IV. ANALYSIS AND CONCLUSIONS
The General Counsel's complaint asserts three alterna-
tive theories of an 8(a)(3) and (1) violation with respect
to the discharge of Atkinson and Dulaney. First, the
General Counsel asserts that they were fired because
they were the subject of the Union's grievance. Second,
it asserts that they were fired because they were both
stewards or had recently been stewards. And third, it as-
serts that they were fired because of their protected ac-
tivities, whether stewards or not. The first theory uses
the same argument which was made during the summary
io As with Timmerman, I believe both union officials are also shading
the truth here in order to create the inference that there was something
sinister about the way Timmerman departed shortly before they were to
learn of the discharges Moreover , they are not consistent with respect to
either the time of the meeting nor its purpose
707
judgment portion of the proceeding, that the discharge
of the two was because they were the subject matter of a
grievance, invoking the "inherently destructive doc-
trine. " Under that doctrine the alleged discriminatory act
carries with it its own imprimatur of illegal motive. The
other two theories require proof of the various elements
of a violation. union or protected activity known to the
employer in circumstances where the employer is likely
to react to that conduct by discharge or other penalty,
i.e., animus.
Respondent asserts that the General Counsel has failed
to make out a prima facie case on any theory and that
the burden has not even shifted obligating it to explain
its actions. First, Respondent contends that Atkinson was
a statutory supervisor and that insofar as he is concerned
it has no obligation to explain itself to the Board. Assum-
ing that Atkinson was not a supervisor, however, it
argues that the discharge in response to the Union's
grievance carries with it no imprimatur of discrimination.
Indeed, from Respondent's point of view, the transfer of
work to the pipefitters was exactly what the Union had
requested and that under the circumstances it was ex-
pected that somebody, most likely refer construction me-
chanics, would lose their jobs. Furthermore, it asserts
that there is no traditional evidence of union animus
against either Atkinson or Dulaney. It also asserts that
their union activity was minimal: Atkinson was totally a
benign shop steward and never made a complaint or filed
a grievance; the only grievance which Dulaney voiced
about which Respondent knew was one to Estes shortly
after he became steward in which he opined that there
was some problem with the overtime rights of some
other employees. That had nothing to do with the refer
construction work. Respondent asserts that it was was
totally unaware than Dulaney had made any complaint to
the Union about his wage for performing refer construc-
tion work. Thus, Respondent argues that the General
Counsel has failed to prove that it somehow knew of At-
kinson and Dulaney's activities, limited as they were, or
that even if it did, that it had any desire to punish them.
With respect to Respondent's defense that Atkinson
was a statutory supervisor, I have earlier concluded in
section III,B, that he was. It appears that he was given
supervisory authority as early as March 1983 and that he
held it continuously until his discharge in January 1984.
To reiterate, it is true that his authority was not exer-
cised with great frequency as he often worked by him-
self. Nonetheless, his own testimony shows that during
that entire time he oversaw Dulaney's refer construction
work at Bellevue Square. I have earlier noted that, al-
though he did not have hire or fire authority, he had a
great deal of independent judgment with respect to as-
signing employees to perform refer construction work.
Often he assigned himself but he also assigned others in-
cluding Dulaney, Culver, and later Mozier. He attended
regularly scheduled foremen meetings and coordinated
refer construction work with the other construction
trades. He purchased material and arranged for installa-
tion equipment. His duties were described to him in an
early memo which was handwritten and a second memo
which was typewritten. Since Atkinson was a statutory
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor within the meaning of Section 2(11) of the
Act, under the Parker-Robb Chevrolet doctrine ir he did
not have the protection of Section 7 of the Act. Accord-
ingly, the allegation of the complaint respecting his dis-
charge shall be dismissed.
Although the complaint will be dismissed with respect
to Atkinson on supervisory grounds, the following dis-
cussion of Dulaney's discharge applies equally to Atkin-
son assuming he was not a supervisor.
The General Counsel asserts that because Dulaney was
fired because he was the subject matter of the grievance,
the discharge violates the Act on near per se grounds. It
is quite true that Dulaney was discharged because of the
grievance. Had Timmerman not transferred the work
from the refrigeration department to the pipefitters, no
discharge would have occurred. Curiously, the General
Counsel concedes that the work transfer itself was non-
discriminatory. In,any event, both the memo handed to
Dulaney at the time of his discharge as well as the note
on his termination slip, "per grievance from Local 32,"
demonstrate that he was discharged as a result of the
Union's grievance. Yet it is clear that this is not a run-of-
the mill discharge grievance reprisal. Usually those cases
involve a claimant who has filed a grievance and who is
discharged due to the employer's displeasure. Examples
of such cases are: Thor Power Tool Co., 148 NLRB 1379
(1964), enfd. 351 F.2d 584 (7th Cir. 1965); Top Notch
Mfg. Co., 145 NLRB 429 (1963). These cases, however,
are clearly not considered to be in the category of inher-
ently destructive discharges; animus is always proven.
Under the General Counsel's inherently destructive
theory, Respondent's act of discharging Dulaney because
he was the subject matter of a grievance, without more,
constitutes a violation of Section 8(a)(3) and (1). Thus,
according to the General Counsel, all it has to do is
show the language on the termination slip and the lan-
guage in the memo accompanying the discharge to make
out a violation, for, in her view, that language amply
demonstrates that the discharge was inherently destruc-
tive of Section 7 rights. Yet, I remain unconvinced.
At this juncture it becomes appropriate to review the
nature of the inherently destructive doctrine. The lead
cases discussing this doctrine are NLRB v. Erie Resistor
Corp., 373 U.S. 221 (1963); NLRB v. Great Dane Trailers,
388 U.S. 26 (1967); and NLRB v. Fleetwood Trailer Co.,
389 U.S. 375 (1967). In general, these cases hold that a
violation of Section 8(a)(3) may be found in the absence
of proof of the traditional elements of union animus
where the discharge occurs in circumstances having such
a wide impact as to bear its own indicia of antiunion
intent These cases address the treatment of strikers and
found' violations when nonstrikers were given preferen
tial treatment over strikers without any legitimate or sub-
stantial business justification. In Portland Willamette Co.
v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976), an appel-
late court said that for conduct to be inherently destruc-
tive it must not only bear its own indicia of intent, it
must also have far-reaching effects such as hindering
future bargaining or discriminating solely on the basis of
participation in strikes or union activity, i.e., the creation
11 262 NLRB 402 (1982)
of visible and continuing obstacles to the future exercise
of employee rights protected by Section 7.
In American Ship Building Co. v. NLRB, 380 U.S. 300
(1965), the Supreme Court discussed another inherently
destructive type case. There, the employer had locked
out its employees for bargaining reasons telling them,
"Because of the labor dispute ... you are laid off until
further notice." Thus, the employees lost employment as
the direct result of the bargaining dispute, i.e., their
union activity. Even so, the Court held the lockout not
to be violative of the Act. It said, "[T]he right to bargain
does not entail any `right' to insist on one's position free
from economic disadvantage." 380 U.S. 300, 309. The
court thus rejected the contention that lockouts in sup-
port of bargaining positions, in the absence of union
animus, violate Section 8(a)(3). It concluded: "[T]here is
nothing in the Act which gives employees the right to
insist on their contract demands, free from the sort of
economic disadvantage which frequently attends bargain-
ing disputes. Therefore we conclude that where the in-
tention proven is merely to bring about a settlemenj f a
labor dispute on favorable terms, no violation of Section
8(a)(3) is shown." 380 U.S. 300, 313. In essence, the
Court held that nonanimus lockouts do not fall within
the inherently destructive category, despite the layoff
notice which the company had issued.
The Board has carried this logic into the grievance
context. In Monarch Machine Tool Co., 227 NLRB 1880
(1977), recently cited with approval in P. W. Supermar-
kets, 269 NLRB 839 (1984), the union won a startup time
grievance for those employees on the company's third
shift. The employer had earlier said that winning the
grievance would render the third shift economically un-
feasible and would result in its elimination. There was no
evidence of hostility to the union. The Board held that
no violation occurred when the shift wag eliminated de-
spite its connection to the grievance Similarly, in P. W.
Supermarkets, supra, the union won a grievance, but be-
cause of the expense entailed, two employees were laid
off. Without evidence of hostility against the union and
with evidence of economic considerations, the Board
found no violation.
It is apparent, therefore, that in cases of this nature,
the Board will not apply the inherently destructive doc-
trine. If the lockout of an entire work force is not far-
reaching, to use the Portland- Willamette phrase, certainly
two discharges are not. Second, discharges even when
connected to a protected act such as a grievance do not
necessarily carry with them their own indicia of antiun-
ion intent. In American Ship that connection was clearly
shown in the employer's layoff notice, but was not dis-
positive. Here, too, a similar connection can be seen in
the discharge memo; likewise, neither is it dispositive. Fi-
nally, no visible and continuing obstacle to the exercise
of Section 7 rights by employees can be seen. Thus the
General Counsel's inherently destructive theory is reject-
ed as a viable avenue for liability.
Even so, assuming that the theory has utility, it is clear
under the Fleetwood doctrine, that even if an act may be
considered to be inherently destructive, the presumption
may be rebutted by a showing that the act was taken for
MACDONALD MILLER CO
substantial and legitimate business purposes. Here, Re-
spondent has demonstrated that the discharge was a
direct response to a grievance which literally demanded
that the work be performed under the pipefitters con-
tract. Furthermore, there is credible evidence that during
the precursor conversations Fitzgerald told Timmerman
the proper assignment of the work was to the," ipefitters.
Moreover, although Sexton testified that he had never
heard the possibility of reassigning the work before it ac-
tually occurred, his testimony on other points gives me
pause, particularly his contention that Timmerman had
agreed to pay the refer construction mechanics the pipe-
fitters" rate. I do not believe that ever happened. There-
fore, his denial that the reassignment of work was an un-
expected turn of events is subject to doubt. This is par-
ticularly so given Fitzgerald's preference as expressed to
Timmerman. Accordingly, conceding for the purpose of
argument that the General Counsel's inherently destruc-
tive theory has merit, it appears that Respondent's expla-
nation is a sufficient rebuttal. Its sole purpose was to
comply with the demand set forth in the Union's griev-
ance by paying the pipefitters' rate to the employees per-
forming the refer construction work. That is exactly the
remedy which the Union sought and constitutes a sub-
stantial and legitimate business justification within the
meaning of Fleetwood.
The Traditional Theories
With respect to the second and third theories that the
discharge was in response to Dulaney's status as either a
steward or an ad hoc steward, the evidence fails there as
well. This theory, unlike the inherently distinctive
theory, requires a showing that Respondent harbored
animus against either the Union or Dulaney. Certainly
there is no evidence that Respondent has any animus
against the Union. The General Counsel concedes the
Respondent's decision to transfer the work was not dis-
criminatory and although Respondent has taken some
positions at the bargaining table which the Union has not
accepted, that is hardly evidence of animus. Respondent
apparently knew, through Estes, that Dulaney was con-
cerned about some overtime practices relating to some
other employees, but there is no evidence that Schramm,
Lovely, or Timmerman were actually aware of his con-
cern nor is there any suggestion that anyone was dis-
turbed by his questioning the practice. Furthermore, Re-
spondent had a legitimate question regarding whether
Dulaney had even become a steward. Atkinson had been
appointed in 1980 by the Union. (Apparently he had vol-
unteered in the absence of anyone else who wanted the
job.) Fitzgerald testified that it was common for the
Union to appoint stewards during that time because of a
longstanding court order; it wished to ensure that its
stewards understood it. Shortly before this election the
court order was lifted. Thus, the election which Atkin-
son conducted did not appear to be consistent with the
Union"s past practice of appointing stewards. Moreover,
the National Agreement required the Union to notify Re-
spondent in writing whom it had selected as steward.
Neither Sexton nor Fitzgerald ever did so. Thus, from
Respondent's standpoint, it can legitimately doubt
whether Dulaney was ever officially made a steward.
709
The inquiry, however , does not end there because em-
ployees are protected under Section 7 for engaging in
contract enforcement activity whether they are stewards
or not . NLRB v. City Disposal Systems, 460 U.S. 1050,
(1984). Still, it is undenied that Dulaney never pressed
the refer construction pay matter to Respondent in any
way. Oddly, Schramm seems to think that the subject
matter may have been mentioned during the stewardship
election in late November or early December 1983, but
Dulaney and Atkinson both deny that it was mentioned
then. In any event , by that time the grievance had al-
ready been filed and, as Sexton concedes, appeared to be
an institutional one, not one initiated by a steward or by
an individual claimant. Of course , in making that obser-
vation it nonetheless goes without saying that the two in-
dividuals likely to be affected by it were Atkinson and
Dulaney; once Sexton had straightened out the purpose
of the grievance with Timmerman , Respondent's man-
agement knew that.
I think it is fair to say that the General Counsel has
therefore proven that Respondent knew that Dulaney
was some sort of steward , whether with or without full
portfolio , and that Dulaney, unlike Atkinson before him,
appeared to have a marginally greater interest in con-
tract enforcement than Atkinson had previously shown.
The General Counsel has also shown that Respondent
knew Dulaney was the likely beneficiary of a favorable
resolution to the Union 's grievance.
Despite all this knowledge , however , there is still a
failure of evidence that Respondent had a propensity to
take punitive action against Dulaney either because of his
status as a steward or his desire to be recompensed for
the wage differential . In fact, the only evidence on the
subject is to the contrary . 12 Timmerman testified that
one of the reasons he decided to transfer the work to the
pipefitters, rather than simply to pay the pipefitter rate to
refrigeration department employees performing refer
construction, was to avoid setting a precedent for a
backpay claims . His interest, therefore , was to accede to
the grievance and to comply with the contract as inter-
preted by the Union while at the same time avoiding an
admission that the previous practice was incorrect. Thus,
his conduct was consistent with the Union 's view of the
contract . Animus cannot be discerned from that . And, as
previously noted, the General Counsel concedes that the
work transfer itself was nondiscriminatory.
The General Counsel makes one final argument , appar-
ently to demonstrate animus. He asserts that the amount
of refer construction work involved here is so insignifi-
cant that it would have been the better business practice
to have absorbed Dulaney into the service division
rather than to have discharged him. It contends that the
12 It is true that Schramm noted to himself that Atkinson was sup-
posedly saying Respondent was antiunion Yet, I do not believe the
remark has any value here- First, Atkinson was a supervisor and
Schramm could view Atkinson 's perceived attitude as an abdication of
his supervisory role Second , the remark is a non sequitur Assuming At-
kinson believed it, it does not mean his belief is founded on fact More-
over, it does not follow that Respondent would discharge an employee
for having such a belief-a belief which is probably common to employ-
ees throughout industry Finally, Schramm 's personal note to himself is
not evidence of company animus
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
total amount of refer construction work was less than
one full-time job and argues that there was no need to
discharge two individuals when either or both of them
could have been absorbed into the service division. It
also argues that some of the four new hires should have
been laid off.
It appears that during 1983 and early 1984 more than
half of Atkinson's time was spent doing refer construc-
tion and approximately one-third of Dulaney's time was
spent performing that work. Assuming the General
Counsel's observation to be factually accurate, it does
not follow that the appropriate business decision to be
made required keeping either Atkinson or Dulaney. It
was, after all, their work which had been transferred and
literally their work was gone. Schramm was somewhat
concerned about Atkinson's success as a foreman in any
event. And, simple arithmetic shows that Atkinson and
Dulaney together comprised five-sixths of a full-time job.
If Atkinson was discharged as a supervisor, all of his and
Dulaney's work would fall upon the individual assigned
to perform refer construction work, the pipefitter. That
would mean that there was only one-sixth of a job left
for Dulaney to perform in service. Neither he nor Atkin-
son, unlike the service division personnel, had permanent
maintenance clients and Dulaney could thus be seen as
nearly a full-time refer construction person, a job which
no longer existed and there was no apparent need to
retain him. Indeed, it is not particularly unusual for com-
panies whose work comes to an end to discharge those
people who had been performing the work in question
even though other work may be needed elsewhere.
Absent a contractual obligation, there is no requirement
that an employer absorb an employee whose work has
disappeared. Even Union Official Fitzgerald agreed that
there was no breach of the reverse seniority clause as
practiced in the area. Moreover, that analysis permitted
Respondent to keep the four it had recently hired . Final-
ly, both men are eligible for rehire . This evidence does
not demonstrate animus.
In the absence of animus , I conclude that the General
Counsel has failed to show that Respondent discharged
Dulaney either because he was a union steward or be-
cause he had engaged in other activities protected by the
Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(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. Raymond Atkinson was not Respondent's employee
as defined in Section (3) of the Act but was its supervi-
sor as defined in Section 2(11) of the Act, and is not enti-
tled to the protection of the Act.
4. The General Counsel has failed to demonstrate that
Respondent discharged Raymond Atkinson and/or Ken-
neth Dulaney for reasons prohibited by the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The complaint is dismissed in its entirety.
'a If no exceptions are filed as provided by 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.