Bechtel Power Corp.

BECHTEL POWER CORPORATION Bechtel Power Corporation and James R. Bezdek and George H. Ayers. Cases 28-CA-4515-4 and 28 CA-4520 June 7, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEI.O AND TRUESDALE On March 29, 1978, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Bechtel Power Corpora- tion, Palo Verde, Arizona, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice shall be substituted for that of the Administra- tive Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives all employees these rights: To act together for collective bargaining or mutual aid or protection To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To refrain from any or all of these things. WE WL.Lt NOT discharge employees for com- plaining about or reporting to International Brotherhood of Electrical Workers, Local 640, AFL--CIO, or any other labor organization, vio- lations or suspected violations of established contractual agreements or work rules between the Union and the Company. WE WI[L Not issue disciplinary warnings to employees in order to cause their discharge, or tojustify discharge of other employees, in retali- ation for having reported to the Union viola- tions or suspected violations of established con- tractual agreements or work rules. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE. wl.i offer George H. Ayers his old job as an electrician and pay him for lost earnings, plus interest. Wi wll.l. revoke and expunge from our rec- ords all disciplinary warnings issued to employ- ees George Ayers, Saul Solter, and Randy Evitt on September 2, 1977, and notify them, in writ- ing. when such action has been taken. BEC( ITEL POWER CORPORATION DECISION SIArIEMENr OF HiE CASE GERALD A WACKNOV, Administrative Law Judge: Pur- suant to notice, a hearing with respect to these matters was held before me in Phoenix, Arizona, on January 31 and February 1, 1978. TIhe charge in Case 28-CA-4520 was filed on September 7, 1977.' by George Ayers, an individ- ual, and thereafter, on October 31, a complaint and notice of hearing was issued in said case, alleging violations by Bechtel Power Corporation (herein called Respondent) of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The charge in Case 28-CA-4515-4 was filed on September 29, by James R. Bezdek, an individual; a first amended charge was filed on October 13; and thereafter, on November II, a com- plaint and notice of hearing was issued in said case, alleg- ing violations by Respondent of Section 8(a)(l) and (3) of the Act. On December 21. the Acting Regional Director for Region 28 of the National Labor Relations Board (herein called the Board) issued an order consolidating the above-captioned cases for purposes of hearing. Respon- A1ll daite ior tlne periods herein are In 1977 unless otherAise indicated. 236 NLRB No. 88 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's answers to the complaints, duly filed, deny the com- mission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to intro- duce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and from Respondent's counsel. Upon the entire record and based upon my observation of the witnesses and consideration of the briefs submitted. I make the following: FIN)lN(GS 01f FACTr I JURISD[)IC(ON Respondent is a Nevada corporation engaged in the building and construction industry and at all times mate- rial herein has been engaged in the erection and construc- tion of a nuclear generating station located in Palo Verde, Arizona. Respondent, in the course and conduct of its business operations at the Palo Verde jobsite, annually pur- chases and receives materials, goods. and services valued in excess of $50,000 directly from suppliers located outside the State of Arizona. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 IHi LABOR OR(iANIZAIIONS INVOLVED It is admitted, and I find, that International Brotherhood of Electrical Workers, Local 640, AFL CIO, and Con- struction, Production and Maintenance Laborers' Union. Local No. 383. affiliated with Laborers' International Union of North America, AFL--CIO, are now, and have been at all times material herein. labor organizations with- in the meaning of Section 2(5) of the Act. Ill. TIHE UNFAIR ILABOR PRAC(ICES IN CASt 28- A 4520 A. The Issues The principal issues raised by the pleadings in this case are as follows: I. Whether, on or about September 2. Respondent dis- charged its employee George H. Ayers in violation of Sec- tion 8(a)(3) and (I) of the Act because of said employee's union activity in attempting to cause Respondent to adhere to certain provisions of the applicable collective-bargaining agreement and/or work rules existing between Respondent and International Brotherhood of Electrical Workers, I.o- cal 640. AFL CIO (herein called the IBEW or the Union); and 2. Whether, on or about September 2, Respondent is- sued written warnings to employee George H. Ayers and two other employees in order to justify the unlawful termi- nation on the same date of employee Ayers, thereby also violating Section 8(a)(3) and (I) of the Act. B. The Factrs Respondent maintains a collective-bargaining relation- ship with the IBEW and other unions at the Palo Verde jobsite. George Ayers, a journeyman wireman and member of the Union, was employed by Respondent from July 1., 1976 to September 1.2 In July. Ayers and another journeyman wireman were engaged in splicing high voltage cable in a manhole on the project. That day Jay Callahan, the general foreman, and Reggie Johnson, the electrical superintendent, drove up to the work area with an apprentice wireman, Bob Galon. The two supervisors directed Ayers and Galon to continue performing the work that Ayers and the other journeyman wireman had been performing. Ayers advised the supervis- ors that this was improper, explaining that Galon was an apprentice wireman and that the work in question required the cooperative efforts of two journeymen wiremen. Calla- han replied that he would contact the IBEW job steward. Homer Bigbey, in order to attempt to get the matter straightened out, and the two supervisors then drove off. Shortly thereafter, Callahan returned and directed the em- ployees to load their equipment and tools in the truck, stat- ing that he would drive them to another area of the project where they would be assigned other work. Ayers asked whether Callahan wanted Ayers to drive the truck on that occasion, Ayers believing that such work belonged to unit employees, and Callahan said no. The employees were then driven to another work place by Callahan. The next day, Ayers contacted Bigbey for the purpose of voicing a complaint regarding Callahan's performing unit work; namely, the hauling of tools and equipment which, under the contract, is a journeyman wireman's job rather than that of a supervisor. Bigbey advised Ayers that he could file charges with the Union's executive board against Callahan who was also a member of the Union. Ayers did so on or about July 18. alleging in a written charge that Callahan, a supervisor, violated established work rules by transporting men and materials across the jobsite.) After the charge was filed, according to the testimony of Ayers, Callahan did not speak to Ayers except when such conver- sation was "absolutely necessary." Later during the month of July, the crew on which Ayers was working was assigned to operate particular equipment utilized for the purpose of pulling wire cable. As this equip- ment was not functioning properly, Callahan directed Ay- ers' foreman, Stuart Pribble, to obtain a small crane, oper- ated by an operating engineer rather than an IBEW unit employee, for the purpose of completing the work. There- upon. Ayers directed another employee to notify Bigbey that the general foreman was attempting to assign IBEW unit work to another craft. A few minutes later, Bigbey approached the group and asked what was happening. Af- ter Ayers explained the situation, Bigbey advised the elec- tricians to discontinue the work they were performing and requested an immediate meeting with Callahan and Prib- ble, which meeting apparently took place in a nearby con- :le was laid off in August for about 7 working days apparently due to a reduction in force. ' During the first part of August, the Union's executive board heard Ay- ers' charge against C(allahan. As a result. C'allahan was fined $250 for the Infraction tHowever, it appears that the matter was appealed and the fine was rescinded 772 BECHTEL POWER CORPORATION struction shack. Shortly thereafter. Pribble returned and explained that the operating engineer would not be as- signed the work. He then instructed the IBEW unit em- ployees, including Avers, to obtain substitute equipment and continue performing the work in question. On the morning of September I. Avers and two other wiremen observed that laborers had been assigned the job of pumping water out of manholes which contained volt- age cables. Believing that this was IBE\V unit work rather than laborers' work, the emplovees left their work areas and contacted Bigbey regarding the matter. Bigbe then spoke to C'allahan, requesting that Callahan assign two electricians to assist the laborers in pumping out the man- holes as a safety precaution due to the fact that the man- holes contained high voltage cables. l'hereupon. Callahan apparently determined that no portion of this work would be assigned to laborers and the IBEW' unit emplovees were advised of this determination by Pribble. Later that das. the employees observed that laborers were again punping out manholes. Ayers asked another xwireman to relax this information to Bigbey, who thereupon again spoke to, (Cal- lahan about the complaint. Bighes was advised b' (Calla- han that the manholes in question contained no high solt- age cables, and thereupon Bighe? agreed that such work had been correctly assigned to laborers. At the end of the shift on September 1, after the above- described incidents, Pribble approached Asers and said that Ayers had done it again. Axers asked what he had done, and Pribble replied that Asers had gotten back on Callahan's list. Ayers laughed and expressed surprise that he had ever been off of Callahan's list in the first place Pribble laughed and said that Asers had also "pissed off" the electrical superintendent, Reggie Johnson.4 The next day, September 2, Axers and other employees were again working in the same area performing the work of pumping out manholes and pulling cable. when a pickup truck swerved off the road toward them. Callahan, who was sitting between two other individuals in the truck, waived to the employees as the truck came abreast of them and hollered out. apparently to Avers, "See he's dri ing. not me." The truck then swerved back on the road and continued on.' At approximately 9:30 that morniing the work crew. comprised of Ayers, Saul Solter. and Randy Evitt. took their customary coffeebreak in a nearbs "change shack" located some 50 to 75 yards awa, from their assigned work area, having driven to the shack in a line truck upon their return to the worksite after picking up some necessars toils or equipment. The emnploees had taken breaks in this shack on four or five other occasions while working in the same general area, having been told bh IForeman Pribble that they were permitted to do so and. indeed. had taken both their morning and afternoon break in the same shack the day before. Avers testified that other electricians had previously taken breaks in that particular shiick, as w.cli as in other change shacks located throughout the project. and 4 .nmpoyvee Rand[s Ltiti overheard thi, ionscrxilllt ilii hd1 tel i 'llnln corrobor.lies the testlimlnOs of A\eis the testlm ins of Rarndv lvit Alo rrohor:ti . \n crs' lt,!llli l, I, grdring ihls im :ICrt that such was the customiarr procedure. Ayers further testi- fied that no management or supervisory personnel had ever prohibited Avers or other electricians from taking bieaks together in neairby shacks. As the emploNees were taking the above-described cof- feebreak. Johnson, the electrical superintendent, walked into the shack. Avers, being an assistant scoutmaster, asked Johnson whether it would be possible for his scout troop to visit the construction site during a scheduled open house. Johnson replied that Avers should see his foreman and get ,whaiesei forms were necessary. Johnson. who re- maiined in the shack about 5 minutes, did not directly com- ment mabout the emplosees' taking their coffeebreak in the shack. Shortl,, after the emplosees left the shack and returned to uork. Johnson and ('allahan drove up to the work area and issued Identical disciplinar\ warning slips to the three employees. the slips, signed by Johnson, specifying the fol- lowinfg offenses: ( I) unauthorized use of change shack, (2) gathering for drinking coffee, and (3) leaving place of work.' Ihe emplosees were requested to sign these slips hut declined to do so. at swhich point the supervisors drove off and the men resumed work. About 15 minutes later. Pribble drove up and informed A'sers to get his belongings because he had received his third disciplinar,' warning slip and was therefore automati- call, terminiated. As Ayers was being driven from the work area. Pribble stated that he did not agree with the termination, Pribble. at the time of the hearing herein, had been em- plo)edl at the project for approximately a year and a half and is a journex man wireman electrician and a member of the I BE\W. lie ser\ ed as foreman for only about 3 months, apparently fromn July through sometime after September 2, and in September reverted to the status of a unit employee. Pribble testified that A'ers and ('allahan had not seen eve- to-eye for quite a While and didn't get along too well. Fur- ther, Pribble acknoleiedged that, on September 1. he re- lated to Asers that ('allahan had Avers back on his list again. Fla;borating. Pribble testified that ('allahan's disre- gtird for Axcrs h id somewhat diminished, but that after Aelrs twiie ccntaicted Bigbey on September I regarding jurlldiltional problems. detailed above, Callahan's animos- it' toward Avers uas rekindled s Pribblc further tcstificd that, when Callahan, on Septem- ber 2. advised Pribbte that the three emploxees had been given written 'karln1igs for ha,.ing coffee in the change shack, Prbbhhle replied that he had told the crew to take their coffeehicak in that particular change shack. explaiii- ng that hboth he IPribble) and the unit employees had done I : nr III \ Ifiltvd I, 1 III Ir lr eltl,,II rt lImt' Ir,' l I * t lidl, tViri enltlle-d "Pro. ett 1)D It It !l r.nal [)lcrmlIr PrIt c d iIlCS" which , ssued to tlperl,iors I I iteh: ltd ( lnlipa r],. Pil.s reiu!ic isilt ,lli tlc ti trm inlllon ul - rei ctlpTi o A thirdt Im'lt lr.,rr c .;rillln I llt)ln . . I-Isc;Ir 5pertMl \scr, inhad r Cletl Ick. ot'1ltc klCtl Il-\ t.ir l'll c , t irc n I bhruar; I 7. gitned h, iec then -elttil.l e tritllerlcten l ( h "rI, I E icrc. f, r dlrpl-,,10. ii .,'d . ,'xc IN c'\[ ,', 1 itll' I rrn-t'li I'II2tLLt¢ e1st,]lt a dlistire pcPIt t, i . upcer. tot .Hid til ' ,C{t,'.! ,~1) %txd 1t!] :,;:ht] hx ( 3[I,than and S;rperin ileldenT! A I tDuitn t. r 1r "l 'I ) i dit p 1i r I t Li, t :L: inte i STdn : ih." i Itl E¼ : t I 'e.' ,i ; h iI id d lTI- :r Ct i ght, tt on S, irc tnlbcr I rcratdrlg !he lurisdi ih l t] riltItct icr ,!l ', :- .sd , %i3l t t .1t \\t.h >.,, :1do lk t, ,n5ll~ltc P he,, iL, :h ,t:ch diqprii h 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so in the past and that the air-conditioned shack provided a comfortable respite from the 100 degree temperature out- side. Further, Pribble testified that, when Callahan related the nature of the alleged rule infractions, Pribble replied that he had never heard of such rules.9 Donna Davis was electrical secretary for Respondent from June 7, 1976, to September 9. Davis testified that on September I she overheard a conversation between Dunn, the electrical discipline superintendent, and Johnson, which conversation took place in Dunn's office. Davis overheard Dunn state that someone had been contacting the steward quite often and it would have to be stopped. Johnson replied that the individual in question probably wouldn't be around too long, explaining that "they'd al- ready had problems with him before." t' Johnson testified that he observed that a line truck had been parked behind the change shack for an inordinate length of time and entered the change shack to investigate the matter. Upon entering, one of the crew members asked how things were going and Johnson replied, "[T]hey were going fine up to now." t Johnson did not directly caution or reprimand the employees for any rule infractions at that time and recalls answering an inquiry from Ayers regard- ing the aforementioned open house, after which conversa- tion Johnson left the shack. He thereupon called Callahan and inquired why the crew was in the change shack and, in addition, why the crew was taking what appeared to John- son to be an extended coffeebreak, directing Callahan to have Pribble investigate the matter. Simultaneously, John- son determined that disciplinary warnings should be issued to the three employees for taking an extended coffeebreak in the shack and so indicated this to Dunn, who acquiesced in Johnson's determination." Thereupon, Dunn instructed Johnson to effectuate the termination of Ayers, both super- visors having undertaken to issue and/or authorize the warnings with the understanding that Ayers would be dis- charged as a result thereof. 9 Iater, apparently to convince Pribble that such rules were in existence, Johnson showed Pribble the stabilization agreement between Respondent and various unions. including the IBEW. Under the heading "Working Rules," the stahilization a igreement contains the following D At the scheduled starting time, all employees will he reads for work at the gangbox which shall he ground level and remain at their place ,f work under the supervision of the Employer(s) until the scheduled quit- ting time. I here shall be no practices that result in starting work late in the morning or after lunch or in stopping work early at lunch time or prior to the scheduled quitting time. Coffee breaks will not be permit- ted nor scheduled during work hours, The eating of lunches shall be restricted to the employee's lunch periods. Employees may take indi- vidual thermoses of coffee to their place of work and have coffee as time and work schedule allow. The parties are in accord that the intent if the Stabilizatiion Agreelntelt is "a fair day's work for a fair day's pay" and the project should he operated and managed in such a nman- iiel to enable the Employer(s) to maintain and increase efficiencs con- sistentr with fair lahbor standards. 0 Davis. who became an office secretary for the Union upon leaving Respondent's employ, was a highly recalcitrant witness and testified that she had been bribed by the Union and threatened by the General Counsel 'These contentions were explored on the record and I find them to be ,sith- out substance, the witness affirming that, despite the involuntary nature of her participation in this proceeding, her affidavit and testimony consistent therewith are truthful and accurate 'i The testimony of eniplocee Evitt corroborates this statement by Jhn- son 1I 1I should be noted that the warning notices make no mention of an extended coffeebreak Johnson testified that company policy and practice is consistent with the aforementioned working rules embod- ied in the stabilization agreement, and that coffeebreaks away from the work area are not permitted. Rather, em- ployees are permitted to take breaks only at their place of work when the work situation permits. Johnson further tes- tified that he recalled no meeting with Dunn, as described above by Davis, wherein Ayers' union activity was dis- cussed, and that, although Johnson was aware of both the antagonistic relationship between Callahan and Ayers and the jurisdictional complaints Ayers had initiated on Sep- tember 1, such matters had no bearing on the decision to issue the disciplinary warnings or to terminate Ayers' em- ployment. 3 C. Analysis and Conclusions There is no contention by Respondent that the activity of Ayers in contacting Union Steward Bigbey for the pur- pose of registering various jurisdictional complaints was unprotected activity. Indeed, such activity undertaken in good faith is protected even though ultimately determined to be nonmeritorious.'4 The record clearly reveals that Respondent's Supervisors Dunn and Callahan were exasperated by Ayers' persis- tence in reporting to Bigbey various infractions of the col- lective-bargaining agreement or work rules. Callahan's ani- mosity toward Ayers in this regard is virtually admitted, and I credit the testimony of former employee Davis who overheard Dunn state to Supervisor Johnson that the fre- quent complaints to the steward would have to be stopped. is Whatever the precise parameters of the coffeebreak rules, set forth above, and however interpreted by Respon- dent, it is clear that Ayers and other unit employees were accustomed to conspicuously congregate for coffeebreaks in convenient change shacks on a frequent basis, often twice a day. Indeed, such coffeebreaks were specifically authorized and sometimes attended by Supervisor Pribble, and it defies credulity to conclude that Electrical Superin- tendent Johnson, having the responsibility of overseeing the field work of the electrical crews, was not also intimate- ly familiar with such established practice. I therefore do not credit Johnson's professed ignorance of such habitual occurrences, there being abundant credible evidence to show that coffeebreaks were taken as described above, and no record evidence to show that Johnson was otherwise l( Callahan did not testify In this proceeding. Dunn's testimony is similar to that of Johnson in all material respects and, accordingly, need not be recounted herein. While Dunn further testified that four electricians had been previously discharged for being out of their assigned work area, two of the said employees were reinstated after pursuing the matter through the grievance procedure, and the incidents in which they were involved were dissimilar to the facts in the instant case: and Dunn was unfamiliar with the circumstances surrounding the discharge of the other two employees. '4 See Blount Brothers Corporation. 230 NLRB 586 (1977); 7an-Tar A Re- sort, 198 NLRB 114., 1109 (1972). '' While counsel for Respondent argues in his brief that this conversation is vague and ambiguous as no names were mentioned, it is quite apparent that reference was being made to Ayers, the only Individual who the record shows was engaged in such activity at the time, and Bigbey, the only steward 774 BECHTEL POWER CORPORATION unfamiliar with the daily routine of employees under his supervision. Based on the foregoing and the entire record herein, I find that Johnson, pursuant to Dunn's prior admonition that Ayers' complaints would have to be stopped, seized upon a patently frivolous pretext for issuing the third disci- plinary warning to Ayers, thus concomitantly occasioning his discharge; and that such action was taken, in violation of Section 8(a)(3) and (1) of the Act, to rid Respondent of a bothersome employee who would not condescend to overlook or ignore what he deemed to be infractions of existing understandings between Respondent and the Union. 16 Moreover, I find that the warning notices issued to em- ployees Solter and Evitt were utilized by Respondent as a subterfuge to give an "aura of legitimacy" to the unlaw- ful discharge of Ayers. Accordingly, I find that such con- duct is likewise violative of the Act."7 IV THE UNFAIR IABOR PRACTICES IN CASE 28 (A4S15 4 A. The Issues The principal issues raised by the pleadings in this case are whether Respondent violated Section 8(a)(3) and (I) of the Act by issuing a written warning to employee James Bezdek on September 15 and by subsequently laying off employee Bezdek on October 12. B. The Facts James Bezdek is currently working for Respondent as a laborer. He has been employed at the Palo Verde jobsite on several occasions, each time being referred under the hiring hall arrangement between Respondent and Con- struction, Production and Maintenance Laborers' Union. Local 383 (herein called the Union). He thus worked for Respondent from June 8 to August 12, from September 15 to October 12, at which time he is alleged to have been unlawfully laid off, and again from November 15 to the current date. Hie has been a member of the Union since 1969 and more recently has been an active dissident mem- ber of the Union, having participated with other dissident members in aggressively and conspicuously, by picketing, the filing of lawsuits, and other means, seeking to oust Wil- liam Soltero from the position of business manager. In furtherance of this activit), Bezdek has a wardrobe of identical T-shirts which he wears during work each day, the front of the T-shirts bearing the union emblem of a hod carrier encircled by the words "union, democracy, justice, and solidarity"; and the back of the T-shirts bearing a pic- ture of a man and woman wearing a single hardhat im- printed with the designation "l.ocal 383" beneath the fur- ther inscription "Union si. Soltero. no." Other laborers also wear such T-shirts. When Bezdek was rehired on September 15, after being laid off on August 12, he was assigned. along with three other employees, to work under Foreman John Trinidad, It. B'linl Bro/t.'r ( : rpiralton Sepr'; ] See 5reh^rn ,;:,'l, .m. i., . M Ni RB 1374 i1977) who, in turn, reported to General Foreman Tony Gomez. Both Trinidad and Gomez are also members of the Union. Trinidad assigned Bezdek the job of digging a hole in a particular area and directed the three other employees to clean a large 144-inch water pipe some distance away. Bezdek commenced his assigned duties at about 8:15 a.m. and worked until 8:35 a.m., when Trinidad instructed him to assist the three other employees in cleaning the water pipe. Bezdek began performing this newly assigned work at 8:55 a.m., and shortly thereafter he engaged one of the other laborers, namely, Robert Lilly, in conversation. Initially. the conversation concerned the work they had been instructed to perform. Then the conversation turned to the identity of Gomez, Bezdek commenting that he believed he had seen Gomez at the union hall but both employees subsequently agreeing that they may have seen Gomez at some religious function. This prompted a discussion of religious philosophy, a subject with which Lilly was highly conversant. Bezdek testified that he was continuing to work during this 5-minute conversation and had no further conversations that morning with any individuals other than supervisors; nor did he stop working other than in response to a supervisor's instructions. About 10 or 10:30 a.m., Trinidad summoned Bezdek to a lunchroom area and showed Bezdek a disciplinary warning directed to Lilly, asking what Bezdek thought about it. I Bezdek, apparently believing it was Lilly's first day in the employ of Respondent, replied that he thought the notice was unfair and that a verbal warning would suffice, partic- ularly as a disciplinary warning remains in an employee's file for an indefinite period of time.20 Bezdek admitted that he had even been talking with Lilly and didn't think that it was fair that Lilly be singled out to receive such a warning. At this point, Trinidad produced a disciplinary notice that had been previously written out for Bezdek and asked him to sign it. Bezdek refused.2' Trinidad asked if the union steward, Roland Hale, should be notified, and Bezdek said, "Yes." Thereupon, Trinidad stated he would advise the steward of the matter and directed Bezdek to return to work. The next day. Business Agent Johnny Griego and Chief Union Steward Hale, who was appointed to the position by Business Manager Soltero:.:2 investigated the matter. Sev- eral days later, on September 20, Bezdek was advised by Hale that the Union had caused Respondent to investigate the matter and that Respondent had refused to remove the disciplinary notice from Bezdek's file.23 As a result, appar- ently on September 21. Bezdek then sent the following let- ter to the Union: 1I ills le'tified similarls I The wairnling notice states. "Wo'rk un.anlsfactorlv lalking .ilth fell, w worker, instead of Uorkilg " Be" Bzidck ha. p eirousls received one other disciplnars oltice during his prior emplon, nt . ith Rerspilent. HBc.,dek' notie is dentiical to Ihat issued tIio 11 In :ddition, the two otheir Ilihrei recel,edl similar hdis iphnarT notices that morning All of the no ice l nllte the hinei of ith infracllon as 830 a m . at which time Be7dek ha,!t ppa.rcn nlot et el ben to Fork with the other employees f lue u.s . stet, ard fi r the I :nl.n from Mav through late Septenmbher v.il hc e i,:s reinced as te.I ard h\ SLtheroi The rcoird does naot Indlgi!te the re:is l tI the challne in liale', status 'NOTi1c 11 ifhe oIhc C llnpilo,ee . ih, received similar warnings oom- plalned ',r Itld grIe r ;ices reg.ardinl the notlces 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 9/15/77 at 8:30 AM a Field Disciplinary Warning was issued to me by Mr. Trinidad. a forman [sic] at Polo [sic] Verde Nuclear Generating Station. at the request of Mr. Gomez, a General Forman [sic] at P.U .N.G.S. These two Union Brothers. acting Together, issued a False and Slanderous Disciplinary Warning which Slandered my reputation and Intimidated my ability To discharge my duties as General Laborer at P.U.N.G.S. This is a violation of Article 111. Sec. 3(g) of the UIniftrrm Local LUnion C(onstitution of the L.Labor- ers' International L Piion of North America. So at your earliest opportunity I hope that you con- vein [sic] a trial Board to here [sic] This charge. On or about September 30, Bezdek received a reply from the Union stating that the trial board would be convened on October 15. On October II. Bezdek stated to his then foreman, Mar- tinez, who also reported to Gomez, that he wanted an "ear- ly out" that day' for the purpose of being able to obtain witnesses to testify in his behalf at the trial board. He re- ceived the early out, it being approved by Gomez. That afternoon in Respondent's parking lot, Bezdek spoke with a prospective witness who was coming to work and noticed that Gomez, who was on the other side of the fence talking with a foreman, was observing the conversation. Shortly thereafter, as the entire shift, including Gomez, was leaving the premises, Bezdek approached another employee and sought to solicit her appearance before the trial board. The individual replied that she was refusing to testify and did not want to become involved, whereupon Bezdek ex- plained that she was already involved, having been selected as a neutral witness who was familiar with the issuance of the warning notices. Bezdek, observing that Gomez ap- peared to be enjoying the confrontation between Bezdek and the other employee, stated to Gomez, who was walking to his car, that he really had everyone buffaloed. Gomez, according to Bezdek, retorted that Bezdek was a trouble- maker. Bezdek then said he would deal with Gomez through the union procedures, whereupon Gomez replied that Bezdek wouldn't have a chance to do so, reiterating that Bezdek was just a troublemaker. The following day. October 12, Martinez advised Bezdek that he had bad news and stated that Bezdek was being laid off. They exchanged pleasantries and shook hands, Martinez stating that Bezdek was a good worker and that he enjoyed having Bezdek work for him,. Then Bezdek got his final check and termination notice, the termination no- tice stating that Bezdek was being terminated because of a reduction in force and was eligible for rehire. The trial board, originally scheduled to meet on October I') but having been postponed by Bezdek, has not been convened to date. The parties disagree on the reason for this: Bezdek maintaining that the Union was to advise him of the rescheduled date: Respondent maintaining that Bez- dek was to advise the Union of the availability of his sAit- nesses prior to rescheduling: and Hale maintaining that he believes Bezdek withdrew the grievance. Hale testified that, when Bezdek, who had been working under a general foreman other than Gomez, was originally laid off on August 12, Gomez stated to Hale that he (Go- mez) didn't like Bezdek: and that, if Bezdek had been working for him. he would have run Bezdek off the job a long time ago. Again, on another occasion, Gomez alleg- edly told Hale that Bezdek had no right to wear those T- shirts on the job and that he should be run off the job for wearing them. Hale further testified that on September 15 he advised Gomez that his "buddy" was being rehired, to which statement Gomez allegedly replied, "Yeah, I see him out there . . . wearing that T-shirt again. I don't even see why they let him on the job again." Thereupon, Hale alleg- edly replied that it was a man's constitutional right to wear any T-shirt he wants. Hale further testified that he and Business Agent Griego spoke to Trinidad on September 16, inquiring why the warning notices were issued. Trinidad replied that he didn't write them up, that, instead, Gomez wrote them up, and that Trinidad was reluctant to sign them but was or- dered to do so by Gomez.2 4 Gomez testified that, on the morning of September 15. he observed employees Lilly, Bezdek. and Vella conversing rather than working.25 Returning about 15 or 20 minutes later, Gomez again observed that the three employees were not performing any work but were merely talking. Gomez then summoned a nearby journeyman laborer, Anastasio Madrigal, to witness this latter fact; 26 and then proceeded to the general foreman's shack, prepared the disciplinary notices. and, after having them approved by Superinten- dent Baker and Disciplinary Superintendent Orcutt, direct- ed Trinidad to issue the notices to the employees. Regarding the aforementioned parking lot incident on October 11. Gomez testified that, as he was leaving work at the end of the shift, he observed Bezdek rushing toward and screaming at a female employee, whom Bezdek was obviously attempting to recruit for the hearing. The con- frontation created such a scene that many individuals, in- cluding Gomez, turned and looked to see what was hap- pening. Observing Gomez, Bezdek hollered, "You got these people fooled." Gomez called Bezdek "an insensate." Bez- dek continued yelling, but Gomez, walking away, was un- able to comprehend the remainder of Bezdek's diatribe. Prior to this time, Gomez had determined that Bezdek would be laid off the following day. Gomez testified that, prior to October 12, Superinten- dent Baker had advised him of the necessity for another layoff. In accordance with customary procedure, Gomez determined who was to be laid off, using the accepted method of selecting the least productive employees from among the various crews working under his supervision. 27 Upon determining that Bezdek should be included in this *1 Irlnidad testified that it w;Is his joh to issue (he aarnings and admitted that hi e xpressed his reluctance to do 1o, not hecaiuse he felt the warnings s.ele unjustified. but merelv because he fel it it as an unpleasant task 2 Earlier he had observed another empli)ee. Ar. allo. talking instead ,i working. which matte/ (omez hbr:ught to the attention of 1rinidad at or about 8:30 that morning Arvallo, was also issued a dsciplihnalr) arning 2t Emplosee Madrigal corroborated (,omnlez' testtailon' in this regard - Under Comez' supersirslon at the particular time in quiestion there were three crews onsistilng of a to:al of 26 laborers. each crew heing directly supervised h, a foreman. 776 BECH TEL POWER CORPORA TION group, along with three other laborers, Gomez then at- tempted, also in accordance with standard procedure. to place the four employees on other crews supervised bhi other general foremen and was able to find positions for everyone other than Bezdek, whom none of the other gen- eral foremen wanted. Thus. Bezdek was the only employee laid off from Gomez' crews on October 12.28 Gomez testified that he has no political involvement with the affairs of the Union. and that he and Soltero were friends until about a year prior to the hearing herein. when Gomez found it necessary to issue a disciplinary warning to a union steward as a result of which Soltero threatened to bring charges against Gomez. Gomez, however. refused to rescind the warning. stating that he worked for the Com- pany. not the Union, and this incident ended the friendship between him and Soltero. Gomez acknowledged seeing Bezdek at several union meetings and stated that at the most recent meeting Gomez had attended Bezdek caused a disturbance which resulted in his being escorted out of the building by the police. While Gomez admits having been in Soltero's office from time to time, he testified that on such occasions Soltero would merely inquire regarding the need for additional laborers on the job, and that the conversa- tions concerned matters between the Union and Respon- dent rather than personal or social matters between Gomez and Soltero. Gomez testified that from time to time Hale would dis- cuss union problems with him. and that on several occa- sions Hale, not Gomez, expressed disapproval of Bezdek and others who wore the above-described T-shirts. Gomez replying that people such as Bezdek have the right to work and protest within the limits of the law. Gomez unequixo- cally denied that he at any time stated to Hale that Bezdek should be discharged or run off the job or otherwise ex- pressed disapproval of Bezdek's conduct. Gomez further testified that, shortly prior to the hearing herein, Hale. who had been requested apparently by Bezdek to testif' at the hearing. suggested that, if Gjomez could assist Hale's broth- er-in-law in obtaining employment with Respondent. Hale would not appear for the hearing. Gomez replied with the adage, "He who has nothing to hide has nothing to fear." and told Hale to do whatever he had to do. but that Gomez was not susceptible to bribery. Gomez denied that the disciplinary warning issued to Bezdek was motivated or influenced by Bezdek's union ac- tivity 29 and, similarly, maintains that the subsequent layoff of Bezdek was occasioned only by valid business consider- ations unrelated to either Bezdek's union activity or his intraunion charge against Gomez for having issued the aforementioned disciplinary warning. C. .nalvsis and Conclusions It is undisputed that GComez made the decision on Sep- tember 15 that Bezdek and the three other laborers should 2 Si.. olher labhrers were also IidJ ,ff that dla, from olher re-t jupcl- oised by different general foIremen 29 Gomez acknolcedged that Ihe time appecaring on the warning nolicec, namely, 8:30 a. m .ls aipparenls inmorrect and testified thai perhtip hoi wristwatch was not fauncminig properls IEmplc!ee 1.Mad rigall. ho ii.-rlh ralcd (;iomez' estiimllns Ihal Ihe emplosees serce tlk illk tin E l id .irklnl places Ihe ilnie of the ociurrenices :ii 9. In ,t r I.lcl be issued warning notices, likewise Gomez alone made the decision to lay off Bezdek on October 12. While counsel for the General Counsel maintains that such decisions were discriminatorily motivated as a result of Bezdek's union activity, including the filing of intraunion charges against Gomez, I find the record evidence insufficient to support such contentions by the necessary preponderance of credible evi- dence. I he testimony of Gomez regarding the incident on the morning of September 15 is corroborated by employee Ma- drigal who impressed me as having an accurate and vivid recollection of the event in question: namely, that for a 5-minute period of time during which the three employees. Bezdek. Iill., and Vella, were being observed, they were not performing their assigned job but rather were simply talking. ('onversels. I do not credit the testimony of Bez- dek or employee Lilly that the employees continued to work throughout the conversation, permissible conduct un- der Respondent's work rules. Nor do I deem it materially significant that the disciplinary notices reflected the time of the rule infraction as being 8:30 a.m. Regardless of wheth- er Gomez' wrist watch was correct or not. Madrigal credi- bls testified that the incident occurred after 9 a.m., a time when Bezdek was admittedl' working with the other em- ploees rather than alone. None of the other employees filed grievsances concerning the same incident, thus creat- ing the reasonable presumption that the reprimands were not unu arranted. Nor does the complaint allege that the other employees were unlawfully issued warning notices in order to justify the alleged discriminatorily motivated wairnine to Bezdek. Based on the foregoing. I shall dismiss this portion of the complaint. (iomel appeared to be a most sincere and credible wit- ness, while Hale's testimony, in manifest contradiction to the testimony of (omez, is suspect. Thus, Hale testified, without explanation. that, although appointed as chief steward bv Soltero. he nevertheless was not a Soltero adherent prior to his removal from his position as steward: and the unrebutted testimony of Gomez, that Hale at- tempted to seek a substantial favor from Gomez in return for w illfull' failing to appear at the hearing herein, likewise supports the reasonable conclusion that Hale is an oppor- tunist, his personal gain being of a higher priority than his integrit,. As a result, I have no hesitancy in crediting the testimon, of Gomez over that of Hale. and, consequently. I find that Gomez did not express to Hale disapproval of Bezdek's conduct as a dissident member of the Union. Further. even if Hale's testimony were to be credited, I would nevertheless find the evidence insufficient to sup- port the contention that Bezdek was discriminatorily laid off on October 12. Thus, there is uncontested evidence that a lavoff of laborers was necessitated by valid business con- siderations, and no evidence was presented to show that Bezdek. because of some unique skill or ability or other reason, should have been retained in Respondent's employ. Gomez stated that he selected for layoff those employees. including Bezdek, who in his estimation were least produc- tive. and no attempt was made by the General Counsel to disprove this assertion. And while the General Counsel ar- gues that. given the nature of the relationship between Go- 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mez and Bezdek on October 12, it is reasonable to assume that Gomez did not endeavor to seek work for Bezdek on other crews, there is no evidence to substantiate this specu- lation. As the Board has stated in a somewhat different but analogous context,30 "The mere fact that an employer may desire to terminate an employee because he engages in un- welcome concerted activities does not, of itself, establish the unlawfulness of a subsequent discharge .... the cir- cumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful." There being insufficient evidence to show that Bezdek was discriminatorily selected for layoff or that his layoff was otherwise unlawful, I shall also dismiss this por- tion of the complaint. CONC (LUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Lo- cal 640, AFL-CIO, and, Construction, Production and Maintenance Laborers' Union, Local No. 383, affiliated with Laborers' International Union of North America, AFL CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent, in C('ase 28 CA4515-4, has not violated Section 8(a)(3) and (1) of the Act as alleged. 4. Respondent, in Case 28 CA-4520, has violated Sec- tion 8(a)(3) and (I) of the Act by issuing disciplinary warn- ing notices to employees George H. Ayers, Saul Solter, and Randy Evitt, and by discharging employee Ayers. THE REMEI)Y IN CASE 28-CA-520 Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that Respondent be ordered to offer George H. Ayers immediate and full rein- statement to his former position or, if that position no lon- ger exists, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges previously enjoyed, and that he be made whole for an)' loss of earnings suffered by reason of the unfair labor practices found above by paying him a sum of money equal to that which he would have earned from September 2, 1977, the day of his discharge, to the date Respondent offers him reinstatement, less his interim earnings during such period. Backpay is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 3 Further, I shall recommend that Respondent rescind and expunge from its personnel records the disciplinary warn- ing notices issued to employees Ayers, Saul Solter, and Randy Evitt on September 2, 1977; post an appropriate notice; and take certain other action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law,. ;MKlate Holt (Cornarlnv 161 NL RB 1606, 1612 (1966) it See, generally, Isi. Plumhing & Heating ('o., 138 NLRB 716 (1962) and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 32 The Respondent, Bechtel Power Corporation, Palo Verde, Arizona, in Case 28-CA-4520. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees for engaging in union or other protected concerted activity. (b) Issuing disciplinary warning notices to employees for engaging in union or other protected concerted activity or as a subterfuge to support the unlawful discharge of other employees. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to employee George H. Ayers immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges previously enjoyed, and make him whole for any loss of earnings in the manner set forth in the section entitled "The Remedy." (b) Revoke and expunge from its records all disciplinary warning notices and memorandums issued to employees Ayers, Saul Solter, and Randy Evitt on September 2, 1977, or other documents in connection therewith, and notify the said employees in writing that such notices and documents have been so revoked and expunged. (c) Preserve and, upon 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 neces- sary to ascertain any backpay due to employee Ayers un- der the terms of this recommended Order. (d) Post at its Palo Verde, Arizona, location, copies of the attached notice marked "Appendix." 33 Copies of the notice, on forms provided by the Regional Director for Region 28, after being duly signed by an authorized repre- sentative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are cus- 2 In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National L.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 3 In the event that 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 National 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." 778 BECHTEL POWER CORPORATION tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case 28- CA4515-4 be dismissed in its entirety. 779