278 N.L.R.B. 958 (N.L.R.B. 1986)

The Zack Co.

National Labor Relations Board - Board DecisionsMar 13, 1986

278 N.L.R.B. 958 (N.L.R.B. 1986)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Zack Company and Ronald Scott Hayes. Case 7-CA-19573 13 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSON AND BABSON On 17 April 1984 Administrative Law Judge Ste- phen J. Gross issued the attached decision. The Re- spondent filed exceptions, a supporting brief, and an answer to the General Counsel's cross-excep- tions, and the 'General Counsel filed cross-excep- tions, a supporting brief, and an answering 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, findings, 1 and conclusions and to adopt the recommended Order as modified. 2 1. The judge concluded that Hayes and Sanak were not engaged in protected concerted activity when complaining to other employees about their grievance.3 We agree but only because we fmd their conduct interfered with their production and therefore lost the protection of the Act. In doing so, however, we disagree with and disavow the judge's statement that the employees' complaints were not made for the purpose of inducing or pre- paring for group action. The filing of a grievance is protected concerted activity. Hayes' and Sanak's discussions with fellow employees about their grievance were an essential means of soliciting or drumming up support for their position and were clearly designed to induce group action. Ordinari- ly, such activity is protected under the Act. See, e.g., Signal Oil & Gas Co. v. NLRB, 390 F.2d 338 (9th Cir. 1968), enfg. 160 NLRB 644 (1966); Atlan- ta Newspapers, 264 NLRB 878 (1982). However, 1 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admuustra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are mcorrect.Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings. 2 The judge declined to order full and unconditional reinstatement for the employees because they had been subsequently rehired. Although the record discloses that both Hayes and Sanak were rehired after their un- lawful layoffs, both employees were again laid off. The issues of their re- instatements and subsequent layoffs were not litigated . Accordingly, we shall modify the Order to provide our usual reinstatement remedy, leav- ing to the compliance stage of these proceedings resolution of this issue. Pyro Mining Co., 233 NLRB 233 fn. 2 (1977). s The General Counsel excepts to the judge's statement that he did not contend that Hayes' and Sanak's complaints constituted protected activi- ty. We find, contrary to the judge, that the General Counsel did in fact argue that such conduct was protected. under the facts of this case, we find that the activi- ty of Hayes and Sanak lost its protected status. The credited testimony indicates that Hayes and Sanak discussed their loss of overtime and griev- ance with other employees on Friday and Monday. As a result of these discussions they spent more time than normal talking about their grievance and less time working. Under these facts, Hayes' and Sanak's discussion about their grievance lost pro- tection of the Act. We agree, however, for the reasons stated by the judge, that the General Counsel established a prima facie case that Hayes and Sanak were laid off for requesting their Union to file a grievance against the Respondent, and that the Respondent did not establish that it would have discharged them absent that request. In this regard, the judge found that Hayes and Sanak were not as unproductive as the Respondent claimed, and that the Respondent did not consistently discipline employees for insuffi- cient production. Moreover, unlike our dissenting colleague, we find no ambiguity in Superintendent LaRoche's admission to the union steward that the reason the employees were laid off was because they were "trying to collect 'money for something that they didn't work for." The statement obvious- ly refers to the employees' grievance that they would have worked overtime had it not been for the Respondent's improper transfer. Accordingly, in agreement with the judge, we find that the Respondent violated Section 8(a)(1) by discharging Hayes and Sanak for seeking to file a grievance. 2. The General Counsel excepts to the judge's fmding that a statement made by one of the Re- spondent's foremen regarding Hayes' and Sanak's grievance was not coercive and to the judge's fail- ure to resolve the alleged supervisory status of the foreman. We adopt the judge's dismissal of this complaint allegation for the following reasons. On Monday, 13 July, Foreman Mark Grohman and Union Steward Terry Thaller were discussing Hayes' and Sanak's grievance to collect their over- time wages. Grohman remarked: "If they don't be quiet, they're gonna get laid off." The General Counsel contends that because Grohman was a su- pervisor or agent of the Respondent, the remark was coercive. We disagree. The Respondent's fore- men do not possess any indicia of supervisory status under Section 2(11). While foremen do direct the work of employees on their crew, the direction requires no independent judgment, and any discipli- nary actions recommended by the foremen are not routinely accepted by the general foreman or plant superintendent. We therefore find that Grohman was not a supervisor within the meaning of Section 278 NLRB No. 134 ZACK CO. 959 2(11). Regarding his agency status , Grohman had no responsibility for or authority over the disci- pline or discharge of Hayes and Sanak or any other employees . Moreover , no evidence was adduced that Grohman took part in or was privy to the Re- spondent's decision to lay off Hayes and Sanak or that the Respondent knew of Grohman's remarks. Under these circumstances , we find that Grohman was not an agent of the Respondent for discipli- nary actions and his remarks were nothing more than speculation or his personal opinion , not imput- able to the Respondent . Abbey Island Park Manor, 267 NLRB 163 (1983). Because Grohman was nei- ther a supervisor nor an agent of the Respondent, we find that the remark cannot be imputed to the Respondent . Accordingly, we dismiss this com- plaint allegation. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Zack Company, Midland , Michigan, its officers, agents, successors , and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer to Ronald Scott Hayes and Timothy Sanak immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions , without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them , in the manner set forth in the remedy section of the decision." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues , I find that the Re- spondent did not violate Section 8 (a)(1) by laying off employees Ronald Hayes and Timothy Sanak. The Respondent is a sheet metal contractor that, under subcontract with the Bechtel Corporation, is responsible for the installation of heating , ventila- tion, and air-conditioning systems in the nuclear power plant in Midland , Michigan . Hayes was a sheet metal mechanic and Sanak was a welder, and both employees were members of Local Union No. 408, Sheet Metal Workers ' International Associa- tion (the Union). Hayes and Sanak worked the second shift in the plant's battery room. On Wednesday, 8 July 1981,1 the second-shift superintendent , Robert LaRoche, notified Hayes 1 All dates are 1981. and Sanak that they would be working overtime in the battery room through Sunday , 12 July, because completion of the battery room was a top priority. When Hayes and Sanak arrived at their work areas2 at the start of the shift Friday, 10 July, they noticed that their scaffold was covered with metal shavings and tools left by the first-shift team. Hayes requested a laborer , a Bechtel employee, to clean up the mess before they started working. While they awaited the laborer, the general fore- man, James Visscher, and then LaRoche , came in to inquire why the men were not working. Visscher and LaRoche were upset that the two employees were not working because the battery room had to be completed quickly, and they be- lieved Hayes and Sanak were causing problems after they had been granted the opportunity to work overtime. LaRoche then transferred Hayes and Sanak to the control room where it was clean- er. Hayes protested the transfer because it meant both he and Sanak would lose the opportunity to work overtime on Saturday and Sunday. After ad- ditional delay and a heated discussion , the employ- ees reported to the control room foreman , who di- rected them to take a break across the hall while he checked out the reason for their transfer. Shortly thereafter, LaRoche arrived at the con- trol room and found Hayes and Sanak sitting with two or three other employees drinking coffee. He told Hayes and Sanak that if they did not get to work immediately , they would be fired. Hayes challenged the grounds for the threatened dis- charge and told LaRoche that he and Sanak were left with no choice but to file a grievance against the Respondent to recover the overtime wages they lost due to the transfer. LaRoche retorted that neither employee would be working overtime that weekend and they would not be paid for that over- time. On three or four occasions during his regular rounds that shift, Visscher noticed that Hayes and Sanak were not working as steadily as required but were talking to other employees about their loss of overtime work. Visscher proposed to LaRoche that they be laid off. LaRoche refused, wanting "to wait and see what happens" and to let them "cool off" over the weekend. Monday morning , 13 July, Hayes went to the local union hall and requested the Union to file a grievance to recover the overtime compensation for the work they had been promised . Sanak, who was at the hall for other reasons, joined Hayes in 2 Employees worked in teams of two, a welder and a mechanic, on a 4-by-10 foot scaffold set 5 feet off the floor above a set of batteries. To weld the various pipes and hangers it was necessary for the employees to kneel or lie on the scaffold. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the grievance request.3 At work that day both em- ployees, still upset about the events on Friday, talked with other employees about their transfer, loss of overtime, and their grievance against the Respondent. Friday's incidents and Hayes' and Sanak's grievance became the subject of discussion throughout the plant, and output noticeably slowed. Visscher, concerned that the production schedule would not be met, again recommended that Hayes and Sanak be laid off because they were talking too much and not working hard enough. About 11 p.m. LaRoche agreed to lay them off the next day, Tuesday, 14 July. Visscher then reported the layoffs to the union steward, Terry Thaller. Thaller asked LaRoche for the reasons for the layoff. LaRoche replied, "Reduction in work force." When Thaller pressed for the real reason, LaRoche stated: Well, it wouldn't be right . . . it makes for bad job relations to have some guys on the job trying to collect money for something that they didn't work for. They wouldn't like me and I wouldn't like them. It's causing a dis- turbance on the job. You know what's going on out there. At the start of the second shift, Tuesday, 14 July, Hayes and Sanak were laid off.4 The judge, relying on LaRoche's statement to Thaller, found that the General Counsel established a prima facie case that the layoffs were based on the employees' request to file a grievance. The judge further found that the Respondent did not rebut this prima facie case, concluding that Hayes and Sanak were not as unproductive as the Re- spondent claimed and that the Respondent "did not prove that its historical approach to disciplinary problems was such that Hayes' and Sanak's layoffs on July 14 was predictable." Assuming, arguendo, that the General Counsel established a prima facie case, 5 I find, contrary to my colleagues, that the Respondent has successful- ly rebutted it and has established that Hayes and Sanak would have been discharged even absent their grievance request. The Respondent's asserted reason for laying off Hayes and Sanak was their failure to work as steadily as required. The record amply demon- strates that the two employees spent more time talking than working. Moreover, most of the work force was talking about their grievance request, re- sulting in reduced production throughout the worksite. As the judge found, output noticeably slowed. It was Hayes' and Sanak's lack of productivity that prompted Visscher to recommend their layoffs on Friday and again on Monday. LaRoche, who rejected this recommendation on Friday to give Hayes and Sanak the weekend to "cool off," decid- ed on Monday to lay them off only after the two employees continued to disrupt the work force and production. I believe 2 days of nonproductivity and disruption provide a sufficient, lawful basis for the Respondent's action.6 Moreover, as the judge noted, the Respondent has laid off employees in the past for production-related reasons. Contrary to the judge, I do not believe it is necessary for the Re- spondent to prove with "historical predictability" its approach to disciplinary problems; it is sufficient if the Respondent shows that it has meted out simi- lar discipline for similar misconduct. This the Re- spondent has done. Because I find the Respondent has shown that Hayes and Sanak were lawfully laid off for nonpro- ductivity, I would dismiss this complaint allegation. 6 That the judge believed that Hayes and Sanak were not as unproduc- tive as the Respondent claimed does not alter the fact that they were un- productive for 2 days. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government a The Union did not file a grievance in the matter. ' The Respondent treated all terminations as "layoffs," even those for cause. 5 I find LaRoche's statement, on which the judge based the General Counsel 's prima facie case, to be ambiguous . LaRoche did not specifical- ly mention the grievance, and his statement , on its face , could be inter- preted as referring to the failure of Hayes and Sanak to work for the pre- vious 2 days rather than to their grievance request The majority here "disdains even entertaining contrary implications where facts may cut both ways " Suburban Yellow Taxi Co v. NLRB, 721 F.2d 366, 383 fn. 39 (D.C Cit. 1983). The only direct evidence that LaRoche's statement re- ferred to the grievance was Union Steward Thaller's testimony that he "imagined" LaRoche was referring to the employees ' grievance request because Hayes had threatened on Friday to file a grievance over the lost overtime. For the purposes of this opinion , however, I will assume the General Counsel presented a prima facie case. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or lay off employees be- cause they asked their Union to file a grievance on their behalf. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed to you by Section 7 of the National Labor Relations Act. WE WILL offer Ronald Scott Hayes and Timothy Sanak immediate and full reinstatement to their ZACK CO. 961 former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to Ronald Hayes' and Timothy Sanak's unlawful dis- charges and notify them in writing that this has been done and that we will not use those dis- charges against them in any way. THE ZACK COMPANY Joseph A. Barker, Esq., for the General Counsel. Douglas C. Nohlgren, Esq., of Chicago, Illinois, for the Respondent. DECISION STEPHEN J. GROSS , Administrative Law Judge. Bech- tel Corporation is the general contractor for the con- struction of a nuclear power plant in Midland, Michigan. Respondent , The Zack Company, is responsible for the sheet metal work at the Midland site, under subcontract with Bechtel. ' During the period in question , July 1981, Ronald Hayes and Timothy Sanak were employed by Zack at the Midland site . Hayes and Sanak are members of the Sheet Metal Workers Union (the Union). The Union represents most of Zack' s employees , and a collec- tive-bargaining agreement was in effect between Zack and the Sheet Metal Workers Union during the period at issue. 2 Zack's Layoff of Hayes and Sanak The Facts Friday, July 10. Hayes and Sanak arrived at their work station in the "battery room" at their normal starting time : 4:30 p.m. (The two employees were on the second shift-4:30 p.m. to 1 a.m.) The first-shift employees had made a mess of the work area and it was too dirty to work in . Technically, only laborers (employed by Bech- tel, not Zack) were supposed to do cleanup work at the site . It was commonplace , however, that in that kind of situation Zack's sheet metal workers would do the neces- sary cleaning up on their own. Hayes and Sanak none- ' Zack does not dispute the General Counsel 's contention that it is an employer engaged in commerce within the meaning of Sec . 2(2), (6), and (7) of the National Labor Relations Act. 2 Hayes filed his unfair labor practice charge on July 27, 1981. The complaint issued on December 21, 1982 . (Its issuance was delayed pend- ing conclusion of grievance proceedings , but the grievance ultimately was withdrawn .) The case went to hearing on June 3 and July 6 and 7, 1983 , and both the General Counsel and Zack filed briefs. By notice dated February 16, 1984 , I asked whether any party was of the view that United Technologies Corp, 268 NLRB 557 (1984), required deferral of this proceeding . Only Zack responded . In that response Zack stated that it preferred "that the matter proceed to conclusion" before the Board and that Zack's response should be regarded "as a formal waiver by the Company of any right to initiate the assertion that this matter should be deferred to arbitration ...: . theless chose to ask that laborers do the cleaning up and, while awaiting the laborers ' arrival , the two sheet metal workers did no work. Robert LaRoche was Zack 's second-shift superintend- ent at the Midland site . James Visscher was Zack's second-shift general foreman at the site , next in com- mand under LaRoche . (All parties agree that both LaR- oche and Visscher were supervisors for purposes of the Act.) Visscher and LaRoche quickly learned that Hayes and Sanak had requested laborers to clean up their work station and that the two sheet metal workers were doing no work in the meantime . That upset both supervisors for several reasons . First, the Company had told the two supervisors that the battery room work had to be com- pleted quickly; moreover, LaRoche and Visscher knew that Hayes and Sanak knew that . Second , 2 days earlier Hayes and Sanak had been offered the opportunity to work overtime in the battery room during the upcoming weekend (July 11 and 12). Zack's employees at the Mid- land site rarely had the opportunity to work overtime and overtime work was greatly desired by the employ- ees. Both Hayes and Sanak accordingly had eagerly ac- cepted the offer of weekend overtime work, and Visscher and LaRoche felt that by demanding laborers to do the cleanup , the two were repaying Zack for the opportunity to make considerable extra money by caus- ing a problem . Third, Zack needed Bechtel's approval before working any of its employees overtime , and Bech- tel might well refuse that approval if any of its manage- ment personnel came across any Zack employees doing no work during working time. LaRoche's response was to tell Visscher to transfer Hayes and Sanak from the battery room to a different work area, the control room . The impact of that transfer would be to eliminate Hayes' and Sanak 's opportunity for weekend overtime work . Hayes and Sanak realized that they would be losing their chance for weekend overtime immediately on hearing the news from Visscher . Hayes forthwith lost his temper , telling first Visscher and then LaRoche that he would not move from the battery room and that he was entitled to the overtime he had been promised . Sanak followed Hayes' lead. The situation quickly grew tense, with LaRoche on the verge of firing the two employees . Union Steward Terry Thaller diffused the situation by convincing Hayes and Sanak to go to the control room.3 By the time the two got to the control room it was after 6 p .m., more than 1-1/2 hours into the shift. Hayes and Sanak had as yet done no work during the course of the shift . Sanak, but not Hayes, then did begin work, or at least prepared to begin work . The control room crew's normal coffeebreak period, however, was at 6:30. The control room foreman accordingly told Hayes and The General Counsel contends that, during the course of the events leading to LaRoche's order that Hayes and Sanak change work stations, LaRoche exhibited hostility toward Hayes' efforts to speak to the stew- ard. But that contention is based on Hayes' testimony, and I do not credit that testimony . Rather, I find that both Visscher and LaRoche allowed any employee to meet with the steward on the employee's request, and that neither supervisor bore any animosity toward such requests. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanak to take a break with the rest of the control room crew. LaRoche arrived in the control room area soon after 6:30 and saw that Hayes and Sanak were sitting and drinking coffee, rather than working. LaRoche blew up, telling the two employees that if they did not get to work immediately, they would be fired. Hayes, who was still upset about his lost overtime, again lost his temper and responded belligerently to LaRoche, virtually daring LaRoche to fire him. Hayes went on to say that he was going to file a grievance with the aim of getting paid for the overtime he and Sanak had lost due to the transfer to the control room. LaRoche retorted that neither Hayes nor Sanak would be working overtime during the week- end and accordingly neither would be paid for that over- time. Hayes and Sanak did get back to work and, relatively speaking, things settled down. Nonetheless, on several occasions during the remainder of the shift, Visscher no- ticed that Hayes and Sanak were not working as steadily as they should have been.4 Moreover, Hayes and per- haps Sanak were taking every opportunity to sound off to other employees-both Zack and Bechtel employ- ees-about how Zack had (in their eyes) unfairly de- prived them of overtime pay.5 Visscher's response was to propose to LaRoche that Hayes and Sanak be "laid off." (During the period in question, Zack treated all,ter- minations as layoffs, even terminations that in fact were discharges for cause.) But LaRoche refused, saying that he wanted to "wait and see what happens." Monday, July 13. On the morning of July 13 Hayes vis- ited the local union hall and asked that the Union pros- ecute a grievance against Zack for the overtime compen- sation that he and Sanak had lost by reason of what he believed to be Zack's improper actions. Sanak, who hap- pened to be at the hall for other reasons, joined Hayes in that request.6 At work that day Hayes and Sanak spent more time talking to other employees and less time working than they should have. What they talked about was their lost overtime and the grievance that they said would result in their collecting overtime compensation for the work they had been promised over the past weekend. Numerous employees working at the construction site soon became immersed in conversation about Friday's events and the attempt by Hayes and Sanak to get the overtime pay. Output noticeably slowed. At the end of the shift Visscher again recommended to LaRoche that he lay off Hayes and Sanak because Hayes and Sanak talked too much and worked too little. This time LaRoche agreed to lay them off. Visscher told Thaller (the union steward) that Zack was going to lay off Hayes and Sanak when they arrived for work the next afternoon. Thaller testified that he then asked LaR- oche why Hayes and Sanak were being laid off, and that LaRoche responded: Well, it wouldn't be right-it makes for bad job re- lations-to have some guys on the job trying to col- lect money for something that they didn't work for. They wouldn't like me and I wouldn't like them. It's causing a disturbance on the job. You know what's going on out there. At the start of the second shift on Tuesday, July 14, Zack did in fact lay off both Hayes and Sanak. Conclusion-Zack's Discharge of Hayes and Sanak The evidence presents a perplexing conflict. On the one hand, neither Visscher nor LaRoche appeared to me to be the kind of supervisor who would be troubled by an employee's grievance filing. Moreover, Hayes' and Sanak's behavior at the jobsite did cause problems, both on July 10 and 13; and, as indicated above, I credit Visscher's and LaRoche's testimony that on both days Visscher recommended that LaRoche discharge Hayes and Sanak. Finally, during the period in question Visscher was going out of his way to avoid run-ins with the Union. He thus would not have proposed the dis- charges if he saw some alternative to doing so and he certainly would not have proposed a discharge based on the employees' contact with the Union.7 On the other hand all Thaller's testimony was especial- ly credible, and I think that Thaller accurately recounted what LaRoche said when Thaller asked him why Hayes and Sanak were being laid off. If I am correct about that, what LaRoche said was that the layoff stemmed from Hayes and Sanak "trying to collect money for something they didn't work for" and the resulting impact that that would have on employer-employee relations at the job- site. It was LaRoche who gave the order to lay off Hayes and Sanak. LaRoche's statement to Thaller could only have been a reference to the two employees' grievance request. There is no reason why LaRoche would have given Thaller that reason for the layoff if it was not ac- curate. Based on the record before me, therefore, I find that Zack laid off employees Hayes and Sanak because they requested their union to file a grievance against Zack. 8 But there remains the question of whether Zack would have taken the same action even had there been no grievance request. And that question, too, is a close one. I do not believe that Hayes and Sanak were as unpro- 4 Hayes left early that day-at 10:30 p.m because of sickness. That early departure did not affect Zack's actions toward Hayes 5 The General Counsel does not contend that Hayes' and Sanak's com- plaints to other employees constituted protected activity. In any case, on the record before me I could not conclude that Hayes and Sanak made their complaints to fellow employees "for the purpose of inducing or pre- paring for group action. , .." Lutheran Social Services of Minnesota, 250 NLRB 35, 41 (1980), quoting Indiana Gear Works v. NLRB, 371 F.2d 273, 276 (7th Cir 1967). 6 The Union never did file the grievance. 7 Visscher was a member of the Union (as was LaRoche). Sometime earlier Visscher had accused an employee of theft The employee pre- ferred intraunion charges against Visscher for "slander " In June 1981 the Umon found Visscher guilty as charged. He was fined $200, but the fine was suspended "as long as he [kept] his nose clean." 8 The General Counsel makes various arguments to the effect that Zack put forth shifting positions about why Hayes and Sanak were dis- charged. I do not find that to be the case. The testimony the General Counsel points to in this respect seems to me to represent mere confusion on the part of the witnesses about the meaning of the questions posed to them. ZACK CO. 963 ductive on either July 10 or 13 as Visscher and LaRoche claimed . Nonetheless , Visscher did recommend to La- Roche , both on July 10 and July 13, that Zack lay off the two employees. That recommendation was based' on Hayes' and Sanak's penchant on those days for griping rather than working . It did not stem from their protected activities -9 But the burden is on Zack to show that La- Roche would have accepted Visscher's recommendation even absent Hayes' and Sanak 's grievance request. NLRB v. Transportation Management Corp., 426 U.S. 393 (1983). My conclusion is that that burden was not met. The evidence in this proceeding demonstrates that La- Roche did not routinely adopt Visscher's recommenda- tions . And although it is clear that from time to time Zack did lay off employees for insufficient production and the like . Zack did not prove that its historical ap- proach to disciplinary problems was such that Hayes' and Sanak's layoff on July 14 was predictable, given their on-the-job behavior on July 10 and 13. Because I have found that Zack laid off Hayes and Sanak because they requested their Union to file a griev- ance against Zack, and because Zack did not show that it would have taken the same action absent that request, my conclusion is that Zack violated Section 8(a)(1) of the Act. NLRB v. City Disposal Systems, 465 U.S. 822 (1984). The Alleged Coercive Statement by Foreman Grohman As discussed earlier, on Friday, July 10 , Hayes was noisily insubordinate , and both Hayes and Sanak griped to other employees throughout their shift that Zack was unjustly depriving them of the opportunity to work overtime . On Monday morning , July 13, Hayes and Sanak asked the Union to prosecute a grievance over the matter . And then, when they returned to work that after- noon, Hayes and Sanak boasted to fellow employees about their grievance request and resumed their griping about the Company's actions. Mark Grohman was one of Zack 's second-shift fore- men at the Midland site . He was not, however, the fore- man of either Sanak or Hayes . Grohman and Thaller (the steward) were good friends. At or near the start of the second shift on July 13, Grohman and Thaller dis- cussed `the scuttlebutt" that Hayes and Sanak "were going to file a grievance against Zack and they were going to collect their [overtime] wages , and this and that . "In the course of that conversation Grohman re- marked to Thaller: "If they don't ... shut up and stop causing trouble, they [are] going to be laid off." Thaller agreed, saying that Hayes and Sanak were "disturbing the job" and that, as a result, "there's a good possibility" that they would be laid off. Thaller credibly testified that he considered Grohman's comment to be speculation only, not a statement based on any special knowledge by Grohman about Zack's plans or policies. The General Counsel argues that Grohman was a su- pervisor or, at the very least, an agent of Zack; that ° As noted above (fn. 5), 1 have no basis for concluding that Hayes' and Sanak's griping to other employees, or their references to their griev- ance request, constituted protected activity. Grohman's remark was coercive in that it indicated that Zack deemed "the attempt by Hayes and Sanak to re- cover for lost overtime"10 to be discipline-worthy; and that, accordingly , Zack violated Section 8(a)(1) of the Act."' Zack argues that the foremen at the Midland site were not supervisors ; that, even assuming that Grohman was a Zack agent , the scope of his agency was too limit- ed for his position to be relevant to the issue at hand; and that in any case there was nothing unlawful about the remark both because of the circumstances in which it was made and because of what Grohman said. My conclusion is that Grohman's comment did not violate the Act even assuming , arguendo , that : (1) the context in which the remark was uttered (a conversation between friends) should be ignored ; and (2) the remark could reasonably be heard as a reference to Hayes' and Sanak's grievance request . That conclusion, in turn, has three bases .. The first relates to the limited authority of Zack's foremen . The second concerns the fact that nei- ther Sanak nor Hayes was on Grohman 's crew. The third concerns the nature of the remark at issue. The foreman's authority. Turning first to Grohman's au- thority, it is clear that Grohman, as a Zack foreman, was a Zack agent for some purposes . Each Zack foreman is expected to report to his superior any time anything un- usual occurs in his area , including improper behavior or inadequate performance by any member of his crew. When a foreman 's superior finds it necessary to direct the actions of a member of a foreman 's crew, the superi- or often relays the order via the foreman. Foremen are authorized to "push" their crews-that is, to urge them to work faster if the foremen believes that the work is getting done too slowly . Foremen hand out written work assignments (although • the assignments are drafted else- where). Each foreman is authorized to tell any member of his crew to redo work that, in the foreman 's judg- ment, fails to comply with applicable standards. But Zack's foremen have no managerial responsibilities or authority . Most of the foremen's time is spent on cler- ical duties . The foremen 's superiors independently check on the activity in each of the foremen's areas at least once an hour. Foremen have no authority to hire, fire, discipline, promote, lay off, recall , reward, or transfer any employee ; and although a foreman may make recom- mendations about , for instance, disciplining or rewarding a member of his crew, the foreman 's superiors act on those recommendations only if the superiors independ- ently conclude that the recommended action is warrant- ed. Finally, although the foremen do "direct" their crews, that direction requires no independent judgment. 10 G.C. Br. 19. 11 The General Counsel first alleged that a Zack agent uttered a coer- cive statement in an oral motion to amend the complaint made at the start of the first day of the hearing . See Tr. 3-9. The amendment refers to a threat by Grohman "to lay off Ronald Hayes and Timothy Sanak if they filed intra-union charges ." Tr. at 4. But Grohman did not in fact suggest that he was going to play any part in the layoff , and if Groh- man's statement did refer to any protected activity , it was to Hayes' and Sanak's request for grievance action by the Union , not "intra-union charges." I have nonetheless considered the General Counsel 's argument on its merits since the terms of the amendment are not too dissimilar from the General Counsel 's position on brief and because the matter, as argued by the General Counsel has been fully litigated. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (That direction involves such things as telling crewmem- bers when to take a break and determining which of his crew has the necessary qualifications to undertake cer- tain technically difficult jobs.) 12 Hayes' and Sanak 's Relationship with Grohman. Hayes and Sanak did not work on Grohman's crew (either in the battery room or when they were reassigned). It is clear that, although each foreman does serve as a link be- tween management and worker , he does so solely with respect to employees on his own crew. The Nature of Grohman's Statement. Notwithstanding the factors discussed above, it is possible to hypothesize a statement by Grohman that could perhaps be deemed coercive . (An example : if Grohman had stated that at a foremen's meeting LaRoche had said that Hayes and Sanak were to be discharged because of their grievance request.) But Grohman said nothing like that . And given the limited scope of Grohman's authority, his total lack of authority or responsibility relative to Hayes and Sanak, and the nature of Grohman 's remark, no employ- ee overhearing it could have reasonably been coerced by it. THE REMEDY The recommended Order will require Zack to make Hayes and Sanak whole for any loss of earnings they may have suffered by reason of their unlawful discharge. Backpay shall be calculated in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). (Reinstatement will not be ordered because Zack subse- quently rehired both Hayes and Sanak .) In addition, Zack will be required to cease and desist from its unlaw- ful acts, to notify its employees of the Board's Order, and to take various other actions relating to the above requirements. 13 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed"' 12 The various secondary indicia of status add little . The foremen's hardhats are colored differently from those of other employees . Foremen are paid a little more (an additional 75 cents per hour) and they generally do not perform manual labor . On the other hand , each foreman spends his entire workday in the same working area as the rest of his crew; none of the foremen has an office (in fact some do not even have a desk); and they take their breaks with the other members of their crew. is Zack has moved that the transcript of the hearing be corrected in various respects. The motion is unopposed and it is granted. 14 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 ORDER The Respondent, the Zack Company , Midland , Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or laying off employees because the employees asked their union to file grievances on their behalf. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Ronald Hayes and Timothy Sanak whole for any loss of earnings or other benefits they may have suf- fered as a result of their unlawful discharges in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to Hayes' and Sanak's unlawful discharges and notify them that this has been done and that the discharges will not be used against them in any way. (c) Preserve and , on request, make available to the Board or its agents for examination and copying , all pay- roll records , social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post in conspicuous places at its facility at the Mid- land, Michigan nuclear power plant construction site, in- cluding all places where notices to employees are cus- tomarily posted , copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by a representative of Zack, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days thereafter . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced , or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. Board and all objections to them shall be deemed waived for all pur- poses. 15 If this Order is enforced by a judgment of a United States court of appeals , the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board ."