Wright, Schuchart, Habor/Boecon/Bovee

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wright, Schuchart, Harhor/Boecon/Bovee, Crail/ GERI, A Joint Venture and Andrew S. Dixon. Case 19-CA -9472 June 7, 1978 DECISION AND ORDER By CHAIRMAN FANNING ANDI) MEMBERS JENKINS AND PENELLO On February 24, 1978, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter. Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed a brief in response to Respon- dent's exceptions. 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 I and brief and has decided to affirm the rulings, findings., and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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 as modified below and hereby orders that the Respondent, Wright, Schuchart, Harbor/Boecon Bovee. Crail,' GERI, A Joint Venture, Richland, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Substitute the following for paragraph 2(a): "(a) Offer to Andrew S. Dixon immediate and full reinstatement to his former position or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole plus interest for any loss of earnings or other monetary losses suffered by him, in the manner set forth in the section entitled 'The Remedy.'" 2. Substitute the attached notice for that of the Administrative I.aw Judge. On April 21, 1978. (Charging Party moved to strike Respondent's excep- hions based on the alleged failure of Respondent to make proper sers ice ion all parties in accordalnce fwith Sec. 102.460) of the Board's Rules and Regu- lations. We are unable on this record to determine the merit of (Chirging Parls's contention Ilowever, in view of our disposition of this case. we find that our acceptance aind consideration of Respondent's exceptions hais not prejudiced the (Chairging Pa'rt)'s position We shall therefore deny the mo- lion In its exceptions Respondent contends its liability for the unfair labor practices alleged in the complaint was adjudicated without affording it full opportunity. after adequate notice, to present evidence on the question whether it is a successor employer responsible for remedying Bovee & Crail/GERl's unlawful conduct. In support of its position Respondent re- lies. inter alia, on Perma Vinyl (Corporion, Dude- Plauri s (' o. el a/ 164 NLRB 968 (1967) We find no merit in the exceptions. Thus, the record indicates that on or about October 1I 1977. Bovee & Crail/G.'ERI. A Joint Venture. named as respondent in the original charge and complaint. added Wright. Schuchart. Harbor/Boecon as partners in the joint venture. At the commencement of the unfair labor practice hearing on Novenhmber I1 1977. Respondent's coun- sel stipulated to the addition of Wright. Schuchart. Harbort Boecon as new partners in the joint venture and further stipulated "to the continuity of operations and employee complement" Under these circumsl: nces Re- spondent's reliance on Permua Vinyl (Corporittion and similar cases involving the liability of a successor employer for the unremedied unfair labor prac- tices of Its predecessor is plainly misplaced. It is. of course. well settled that service upon any partner constitutes service on the partnership See. gener- ally, rule 4(d)3), Fed. R. Civ P.: Leonard ( arp rand Ed.ard ( arp a hI a Fdward's Super Marker and Elm Farm foods (i,. 133 Ni RB 1613. 1648 (1961). Moreover. it appears uncontroverted that counsel for the (eneral Counsel served actual notice of the then pending unfair labor practice pro- ceeding on Wright, Schuchart, Harbor Boecon on or about August 31. 1977 2 In the absence of exceptions thereto. we adopt pro f,rnla the Adminis- trative Law Judge's findings that Respondent did not commit certain other violations of Sec. 8(a)(I) of the Act as set forth in sec 111 .s of the Decision APPENDIX NOTICE To EMPI.OYIES PosrEI) BY ORDER OF tilHE NAIIONAL LABOR RELAtIIONS BOARD An Agency of the United States Government After a hearing at which participating parties had a chance to give evidence and introduce testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things except to the extent that membership in a union may be required pursuant to a lawful union security clause. WE WILL NOI interrogate our employees in or- der to find out their interest or activity on behalf of a union or other efforts of employees to en- gage in concerted activity. WE WILL NOI threaten to discharge employees for engaging in rights given to them by the Act. Specifically, WE WILL NOT threaten discharge to 236 NILRB No. 89 780 WRIGHT, SCHUCHART. ET AL. employees for filing unfair labor practices with the National Labor Relations Board. WE WILL NOT discharge or otherwise discrimi- nate against any employee for engaging in activ- ities on behalf of any union. WE WILLt NOT in any other manner interfere with, restrain, or coerce employees with respect to rights guaranteed them in Section 7 of the Act. WE WILL offer immediate and full reinstate- ment to Andrew S. Dixon to his former job or, if it no longer exists, to a substantially equivalent position, with backpay plus interest from the date of his unlawful discharge. WRIGHT, SCH[UCHART, HARBoR/BotE(ON/ BOVEE, CRAIL/GERI, A JOINT VENTURE DECISION STATEMENT OF THE CASE JAMES T RASBUrRY Administrative Law Judge: This case was heard before me in Richland, Washington, on Novem- ber 10 and 11, 1977. The charge was filed by Dixon on May 10 and served on Respondent I by registered mail on or about that same date. The complaint issued on August 8, alleging Respondent to have wrongfully discharged An- drew S. Dixon because of his activities on behalf of the Union in violation of Section 8(a)(3) of the National Labor Relations Act, as amended (herein called the Act) and sev- eral independent acts of interference and coercion alleged to be violative of Section 8(a)(1) of the Act. The complaint and notice of hearing was served on Respondent on or about August 9. Respondent filed its answer on August 24 in which it admitted certain jurisdictional aspects of the complaint, admitted the termination of Andrew S. Dixon on or about February 3, 1977,2 but denied the commission of any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after giving due consider- ation to the briefs filed by the General Counsel and Re- spondent's counsel, I make the following: FINDINGS OF FACT I. IIRISDICTION Bovee and Crail is and at all times material hereto has been, a California corporation and wholly owned subsid- iary of General Energy Resources, Inc. (herein called GERI), a Delaware corporation. They are engaged as a The name of Respondent has been corrected from Bosee & Crail Gen- eral Energy Resources. Inc., a joint venture. to conform with the stipulatlon submitted by the parties at the hearing : Most of the relevant and significant dates herein occurred during the year 1977 and, unless otherwise specified, all dates hereinafter shall refer to the sear 1977. joint venture in the mechanical construction and installa- tion of equipment in a nuclear power plant at the Hanford Reservation, project 2, near Richland, Washington. On Oc- tober 1, the joint venture was expanded to include two additional partners: Wright, Schuchart, and Harbor, and Boecon. So far as can be determined from this record the entry of the two additional partners in the joint venture did not alter the operations and/or employee complement. (Hereinafter all partners in the joint venture shall be re- ferred to as Respondent.) During the past 12 months, which period is representative of all times material herein, Respondent has engaged in construction of a nuclear pow- er plant pursuant to a contract with the United States Gov- ernment valued in excess of $50.000. During this same pe- riod of time Respondent in the course and conduct of its business operations, purchased and caused to be trans- ferred and delivered to the Hanford project site, goods and materials valued in excess of $50,000 which were transported to said site directly from States other than the State of Washington. On the basis of these admitted facts. I herewith find Respondent to be, and at all times material herein to have been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORG(ANIZATION INVOLVED The Office and Professional Employees International Union, Local 100, AFL-CIO, (herein called Union), is and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALI..E(GED UNFAIR LABOR PRACTICES A. The Issues I. The first issue concerns a resolution of the job status ("employee" vis-a-vis "supervisor") of the position held by Dixon, the Charging Parts, from on or about January 3 until his termination on February 3. 2. Depending on the resolution to the first issue raised, it becomes significant to determine the motivation of Re- spondent in discharging Dixon. B. The Evidence Andrew Dixon was first employed by Respondent on August 4, 1975, and worked in three separate capacities, each bearing the same title-field clerk-until December 31, 1976. During this period of time the jobs he held were included under the collective-bargaining agreement be- tween Respondent and the Union (G.C. Exh. 2). From September through December 30, 1976, Dixon served with- out incident as a shop steward for the Union. A union-security deauthorization vote had been held in June 1976 which eliminated any mandatory union-security requirements. As a consequence, union membership waned and Dixon was spending considerable time contacting and talking to employees in order for the Union to have a fairly strong position when negotiations for a new contract were started in the spring of 1977. One such contact was made by Dixon with Gail Blanchard. who was a senior clerk 781 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working for an admitted supervisor, John Nelson. Accord- ing to the testimony of Dixon, Nelson saw him talking to Gail Blanchard and said to him (Dixon), "If I had any union-affiliated business to conduct to do it on my lunch hour and not to interrupt his office proceedings." In mid-December, Dixon was called to the office of Mc- Sparrin, project manager, and, in the presence of Al Ha- boush, the then project control division manager, was ad- vised of a position in scheduling with Bob Squires as a cost engineer. A short time later, the position was offered to him but he did not accept it. Later that month the person- nel manager, Margaret Weiland, told him of another posi- tion that would be available in the material control depart- ment under John Nelson. A short time later, Dixon talked directly to Nelson who advised him that the position would be working with progress reporting and billing reporting: a position which required cooperation with the field offices. It was a salaried job paying $225 a week. At that time Dix- on explained that the position Nelson was offering was something less than that which Al Haboush had previously offered and that it was within a few dollars of what he would be making on his current job when the scheduled pay raise occurred on February 1. On or about December 23, 1976, Nelson called Dixon to his office and told him that he was prepared to offer Dixon the position which had been discussed at a salary rate of $250 a week. According to Dixon he was advised that his new job was not covered by the union contract and that he would be receiving most of his training from the senior clerk, Gail Blanchard. Dixon accepted the new position and on December 27, 1976, wrote an interoffice memo to Margaret Weiland (at that time Margaret Gerdes), the per- sonnel director, with carbon copies to the union officials, advising that effective December 31, 1976, he was termi- nating his employment as a field clerk to accept a non- union job as office engineer II in material control, begin- ning Monday, January 3. In that memo he stated his intent to resign as steward for the Union and also his position on the executive board of the Union representing Respon- dent's employees (G.C. Exh. 3). On December 30, 1976-the last day Dixon worked in his field clerk's job he was involved in a conversation with Jan Massey, Patty Dutton, Helen Birkholz, and Gail Blanchard. During this conversation Blanchard expressed her interest in applying for the field clerk's position which Dixon was leaving. It was suggested that she immediately call Margaret Weiland. This was done, but Blanchard was told by Margaret Weiland that the position had already been filled by the timekeeper, Jim Wade. Blanchard stated to the group her desire to file a grievance. Andrew Dixon offered to help her write the grievance letter. Later that same day Dixon had a brief conversation with Margaret Weiland, during which he told her that he understood Blanchard had applied for his old position and had not been considered. Dixon went on to tell Weiland that the Company might have a discrimination grievance on its hands. On January 5, after Dixon had assumed his new role as office engineer II in material control, he received a tele- phone call from Joan Clifford, a business agent for the Union. During this telephone conversation Clifford asked Dixon if he would resume his job as steward for the Union. Nelson overheard the telephone conversation and com- mented to Dixon "Has this now become your new union headquarters?" Dixon testified that he then related to Nel- son the entire conversation that he had had with Clifford. On the following day he received another phone call from Clifford in which Clifford advised Dixon that she had informed Margaret Weiland of Dixon's willingness to con- tinue as a union steward and that Margaret Weiland had expressed her elation. On January 7, Dixon advised Nelson that the Union was going to be filing a grievance on behalf of Blanchard be- cause Respondent had not considered her application, or bid, to fill the job vacated by Dixon as a field clerk. Ac- cording to Dixon, Nelson expressed some words of unhap- piness because Blanchard was trying to leave his depart- ment and said, "I hope she gets her little toes stepped on." At that time Nelson said that he was going to be out of the office on the following Monday, January 10, and asked if the filing of the grievance could be delayed until January 11, when he got back. Dixon agreed to do this. On the morning of January 11, when Nelson asked if anything exciting had happened during his absence, Dixon replied that nothing exciting had happened, but that the Union was going to go ahead and file its grievance on behalf of Blanchard and would be discussing it at a union meeting that night. Later in the afternoon Nelson called Dixon into his of- fice and advised him that he (Nelson) and Al Haboush had been discussing his (Dixon's) attitude and affiliation with the Union and they had come to the conclusion that Dixon was walking a dangerously thin line. At that time Nelson questioned Dixon as to his aspirations, how he felt about unions in general, how he felt about strikes, and what the Union had ever done for him. Nelson also inquired as to Dixon's union participation during the period of the pipe- fitters' strike. According to Dixon, at that time Nelson told him that he and Al Haboush wanted Dixon to declare alle- giance one way or the other-either to the Union or to management. On January 12, a grievance was filed with Margaret Wei- land regarding Respondent's failure to consider Blanchard for the position formerly held by Dixon. The grievance was signed not only by Gail Blanchard, but also by Andrew Dixon and Robin Otey, as union stewards (see G.C. Exh. 4). On January 14, Dixon was called to the office of Al Haboush. Haboush and Bud Mayne, the construction divi- sion manager under whom Dixon had formerly worked, talked to him regarding the fact that he had resumed his role as a steward for the Union and questioned whether or not he should be serving the Union in his new job classifi- cation. Following this conversation, Dixon went immediately to the office of Bob Mies. Respondent's financial manager, who was scheduled to take Al Haboush's place as project control manager within the next few days. Dixon expressed his opinion as to the propriety of his serving as a union steward and specifically his interest in Blanchard's griev- ance. During this conversation it was made clear that Wei- land and McSparrin had approved his serving as steward, 782 WRIGHT, SCHUCHART, ET AL. but Dixon agreed to resign upon the completion of the grievance regarding Blanchard. According to Dixon, dur- ing this conversation Mies stated that John Nelson was very upset because Dixon had resumed his role as a union steward. On January 14, a grievance meeting was held in the con- ference room of Respondent's main office building which was attended by Margaret Weiland, Joan Clifford, Gail Blanchard, Robin Otey, Jim Wade, and Andrew Dixon, The meeting was concerned with the Gail Blanchard griev- ance. On January 17, Dixon met again with Bob Mies and Margaret Weiland during which Mies and Weiland ex- pressed some concern and lack of understanding as to how Dixon could serve as a union steward while filling a job in a management capacity. Again, all three parties came to an agreement that Dixon would resign his job as union stew- ard as soon as the Blanchard grievance was completed. Dixon was never asked, or told, to resign immediately. On January 18, Dixon received another telephone call from the union business agent during work. The conversa- tion concerned the status of Gail Blanchard's grievance and was overheard by John Nelson. Dixon testified that immediately following the conversation he was called into Nelson's office and there Nelson informed him he was not to conduct any more union business whatsoever from the company telephones. There were no company rules re- stricting the use of telephones to company business. Fol- lowing this telephone incident, there was another confer- ence between Bob Mies, Nelson, and Dixon, during which nothing particularly was accomplished except that Nelson was again advised that Dixon had agreed to resign his job as union steward upon the completion of Gail Blanchard's grievance. On January 24, Nelson asked Dixon to do some over- time work and, when Dixon explained that it would not be possible because he had a meeting downtown at 5:15, Nel- son then inquired as to whether or not it was a union meet- ing. When Dixon advised that it was a union-affiliated meeting, Nelson replied that he was going to talk to Bob Mies again. That evening at approximately 7 p.m. Dixon decided that it was time for him to talk to Don McSparrin. the project manager. During this conversation Nelson attempt- ed to explain some of the difficulties that he was having with Nelson and particularly complained about Nelson's effort to inquire as to what Dixon was doing on his own time after work. During this conversation Nelson advised McSparrin that he had filed unfair labor practices against the Company and that he intended to let it stand. Mc- Sparrin advised Dixon that they had never had anyone continue working for the Company who had filed unfair labor practice charges. McSparrin was called to testify and confirmed that Dixon had called at his home one evening and discussed the job situation in the material control de- partmen t but did not deny', or comment, on Di von's testimon'V concerning McSparrin's statement regarding the reatmentr tr,- ward employees who file unfair labor practice chargcs. On January 26, there was a board of adjustment meeting (pursuant to the contract as set forth in the language of sec. 2, p. 10, of G.C. Exh. 2). The board of adjustment consist- ed of Harry Muehlman and Jan Massey for the Union, and John Herrig and Rod Meadows for the Company. Scott Malroy, Margaret Weiland, Jim Wade, Gail Blanchard, Joan Clifford, Robin Otey, and Dixon attended as witness- es or individuals necessary to be questioned in reference to a settlement of the Gail Blanchard grievance by the board of adjustment. The grievance was not resolved at that meeting. On February 3, at approximately 10 a.m., Dixon was called to the office of Bob Mies. McSparrin was in Mies' office. At that time Mies advised Dixon that the situation in material control was out of control and that it was irre- versible and they were going to have to do something about it. Dixon was offered the opportunity to voluntarily resign from his job as engineer II in the material control department, or to accept another position in the firm which would have been a field clerk's job included within the bargaining unit, or that he would be discharged.3 Dixon advised Mies and McSparrin that he would like some time to think over their offer and within an hour returned to the office and spoke to them in the company of Robert Otey, the other union steward. Dixon advised them that he would not voluntarily resign and that if they were going to discharge him, they would have to escort him off the premises and take his badge. This was done by Mies. At the time of his discharge, Dixon refused to accept a written notice of termination, but this was later mailed to him by certified or registered mail and appears in the rec- ord as Respondent's Exhibit I. The testimony of Joan Clifford added little essential evi- dence to the record except that she did confirm the two telephone conversations with Dixon during office hours and testified that she had obtained clearance, or approval. for Dixon to serve as union steward from Margaret Wei- land. Margaret Weiland testified and confirmed that she had obtained approval from McSparrin for Dixon to continue to serve as union steward and that she advised Dixon that McSparrin had approved his serving as steward. Weiland further testified, "When it became evident that Andrew [Dixon] remaining on as steward was causing friction with his supervisor. at that time Mies questioned whether this should be allowed to continue." Weiland added that she and Mies talked to Dixon, at which time they told him that his stewardship "was causing a lot of problems with his supervisor and that we would prefer if he were not the shop steward." As a result of that meeting, Mies and Weiiand agreed that Dixon could continue until the Gail Blanchard grievance was coimpleted. Weiland acknowledged that she advised the union business agent, Clifford, that McSparrin had approved Dixon continuing to serve as a union stew- ard. John Nelson's testimony was not too illuminating. -ie testified that Dixon's work progress was unsatisfactory be- '] here i1 1 selritus qulestioll us is l wheiher or 1olI either M1!ce or M.- Sparrin otlid ha\ e gua;r;anieed D)ion the har .:itsne unit joh ihe ;obh hai \:,s suggested was a field clek's jrh foir hich [)lxsn might h.,se hecn *ell qi.htfCld. hFit IhTc .ere ,er cta oither emprn rsees uhi, h Ino irna ,s Ioto been qualifiedi thao hhde nre eniorits thin did Dixon Miloreover. the JOh 'L'i ?ested paid less monne, th.an Ilixon had heen recelving 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause he continued to make the same errors, but acknowl- edged that he was not a party to the decision to discharge Dixon and, of course, incompetence or unsatisfactory workmanship is not listed as a reason for the discharge of Dixon (see Resp. Exh. 1). His testimony confirmed the fact that the department was somewhat behind in their work and that he was doing substantial overtime. He also ac- knowledged having questioned Dixon concerning whether or not he was going to a union meeting on one occasion when Dixon advised him that he would be unable to work overtime. The sum of Nelson's testimony was that he com- plained because Dixon was not producing as much work as he had expected. As Nelson said, "I needed someone in the position that could do the work that I needed done." Nel- son also admitted having been upset because Dixon had gone around him to McSparrin. Nelson acknowledged that he never sat down and talked to Dixon and explained to him that unless there was a change that he (Dixon) would be released from his position. Nelson did not deny Dixon's testimony that he (Dixon) had been questioned extensively about his union activities. Don McSparrin testified that after he had heard Dixon's side of the story he talked to John Nelson. McSparrin testi- fied that Nelson's story, "was essentially that Dixon was not getting the work out in time for his monthly reports, and with that, John had to be working many hours of over- time with very little assistance from his department." When McSparrin was shown the termination letter given to Andrew Dixon and questioned as to why there was a refer- ence to a conflict of interest between management and I)ixon's union activities as a reason for his discharge, Mc- Sparrin replied: A. Well, in my opinion, Sir, the reason it was placed there was because it was taking time away from his the daily routine that he could they should have been devoting to the computer input that John Nelson was asking him to do, and thereby also, it was interfer- ing with any requests that John Nelson had for him to work overtime, and, on one instance, it interfered with the overtime because of a union or an affiliated mcet- ing. Q. Now, don't let me put words in you mouth, but I understand you're saying you listed that as a reason. because you learned from Mr. Nelson that it was this loss of time away from his regular duties in which he was working as a union steward, that was really c.lus- ing the friction between the two of them? A. I think that is a true statement. Conclusions Respondent contends (1) that Dixon's employment with Respondent was not terminated because of his union activ- ities: and, in the alternative, (2) regardless of why Dixon was terminated, he was a "supervisor" within the meaning of the Act and thus should not be afforded the protection of the Act. Section 2(11) of the Act provides, in relevant part, that: The term "supervisor" means any individual having authonty, in the interest of the employer, to hire. transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibilty to direct them . . . or effectively to recom- mend such action .... I he courts have long held that the elements of supervision, as enumerated in the foregoing section, must be considered in the disjunctive.4 Dixon testified that, upon assuming his new job as office engineer 11, he began filing drawings and sketches for pip- ing and hangers as they were received from the document control department. He reviewed the foreman's daily re- ports which came in from the field, verifying the data that was contained thereon for accuracy before creating for- mats for that data for entry into the computer which was used to compile the progress reports and the monthly bill- ing reports. When asked if the essential function of the material con- trol department was to keep track of the work in progress and to transmit data to the general contractor so the gener- al contractor could then pay Respondent for the completed work, Dixon replied, "Yes, and also to verify it with the field." Most of Dixon's instruction and training was re- ceived from Gail Blanchard, a senior clerk in the material control department. Dixon supervised no one and he cer- tainly did not participate in hiring or firing employees. His formal education extended only through 2 years of junior college, majoring in social sciences. Respondent offered no effective evidence to refute Gen- eral Counsel's contention that Dixon's job as engineer II was, despite its professional or managerial-sounding title, nothing more than a rank-and-file employee job. The job requirements for office engineer I and office engineer II as set forth in Respondent's Exhibit 2. which admittedly at one time was read to I)ixon, fall short of proving an'- thing to the contrary. Weiland acknowledged that although this material was read to Dixon it was not an accurate description of his actual job duties and only provided broad guidelines. Moreover, Dixon was totally lacking in the requirements to become an office engineer I as set forth in the language of Respondent's Exhibit I. )ixon did not have a "degree in a related field of engineering oi construc- tion, or the equivalent in other training plus experience." The only other evidence offered by Respondent was some nebulous and irrele-vant indications of what work a former employee in the material control department had per- formed.' Ilhe tests of 'supervision" must be measured against the actual job duties and not job title or somne vague speculative plans for the future. (There are trainee "super- visors," but they have the potential to be a "supervisor." Dixon did not have the training or experience to be an office engineer.) After careful analysis and study of all of the evidence presented, I am convinced there was nothing in the make- up of the job performed by Dixon that meets any of the 4: ./ R B ./Aiard (, Bndd lafnulfat urinm ( ,lnpanL 169 1 2d 571 ( A i 1948). cert. denied 13 IU.S. 908 Iherc s incvontradicled ecidence in the retord thei after I)lxon was dicharged tile malrcelltil onirol depiartmcTll Aa, manned bh o nlle office engi- neer and itwo leiks both of the clerk's jobs being coe red hb the har!iain- i11 ulnit 784 WRIGH'. S(HUCHARTI. . Al.. criteria of a "supervisor" as delineated in the Act. Nor was there anything about the job to place it in the category of a supervisor-trainee position. The cases cited by Respon- dent's counsel are not apposite. In my opinion, Dixon's job was nothing more than a high-level clerical job which Re- spondent elected to classify as an exempt position under the provisions of the Fair l.abor Standards Act. 29 U.S.C.A. Dixon was at all times an "employee" under the Act.6 There is no con flict in the evidence regarding the consent by top managerial people of Respondent in granting Dixon the right to serve as a union steward after he was promoted to work under John Nelson. I am also convinced after a careful review of all of the evidence that Nelson was un- happy with Dixon because Dixon apparently exhibited a lack of interest in the new job and failed to devote as much time and energy at the job as Nelson would hase liked for him to do. However, invariably* the complaints filed hb Nelson with his superiors related to the time that l)ixon was devoting to his job as a union steward. Thus, it was Dixon's union activity--which he had been authorized to carry out by not only the personnel manager but the prol- ect manager-that was detracting from Dixon denoting more time to his job. The conclusion is inescapable that it was Dixon's union activitv that caused his discharge. As a matter of fact, Respondent acknowledges in the termina- tion letter given to Dixon (Resp. Fxh. 2) that it was his union activities that provoked the discharge. If words at- tributed to those authorized to speak for management are credited as having been said their form, content, and con- text eliminate all doubt of motilse. .L.R.. . . erux .ron. 1.. C. and E. F. on Seggern d b a Shovel Suppli, Conipa- nv. 257 F.2d 88. 90 (C.A. .5, 1958). Accord: N.L.R.B v. Shawnee Industries. suhsidiarl o*f ThiokAol Chemicall Corp. 333 F.2d 221. 224 (C.A. 10, 19t4). This is a violation of Section 8(a)(3) of the Act. I also find Nelson's admitted questioning of Dixon re- garding his participation in union activities on the occasion of Dixon's refusal to work overtime, as an act of interfei ing with D)ixon's Section 7 rights and, thus, a violation of Sec- tion 8(a)(1) of the Act. Dixon also credibly testified to one other occasion when Nelson called him into his office and interrogated him concerning his participation in union ac- tivities, strikes, and the Union's role during the pipefitters' strike. Although Nelson testified on hehalf of Respondent. these assertions bh Dixon were not denied. McSparrin wais called to testify by Respondent. hut he did not deny that he (McSparrin) had, during the conversation with O)ixon in McSparrin's home, threatened dismissal of any employee that filed an unfair labor practice charge with the Board. These three instances of interrogation, interference, and threats I find to be violative of Section 8(a)(I) of the Act. All other allegations of interference. I recommend be dis- missed. because in my opinion the 5 did not interfere with. restrain, or coerce emplorees and could not reasonably be calculated to violate the Act. It is not unlawful to curtail union activity during "working time" when it is disruptive of work. 'See , c I 'Ii iR I ss i , i - . therein. is i li1 I Fl ( 1(i 1F HI. UNFAIR I.4BOR PRACTICES UPON ( OMM Rt IR The activities of Respondent, set forth above, occurring in connection with Respondent's operations described in section 1. above. have a close, intimate, and substantial relationship to trade. traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V 111 RFMEDY Having found that Respondent engaged in certain unfair laibor practices. I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action necessary to effectuate the policies of the Act. Respondent shall be required to reinstate Andrew S. Dixon to his formei position without loss of seniority or other employee benefits which he would have accrued had he not hbeen wrongfull? discharged. In the event there has been a substantial change in personnel or reorganization of Re- spondent's operation, or any part thereof, which prevents the reinstatement of Dixon to his former position, then he shall he reinstated to a substantially equivalent position, but with due regard for the terms of the labor management agreement swith reference to the bidding system and the seniority and qualification requirements. Respondent shall also he required to make D)ixon whole for any loss of earn- ings from the time of his discharge until he is offered rein- statiement in accordance with the terms of this Order and at interest thereon to be computed in the manner pre- scribed in IF: 4' ioollvorth Compainv, 90 NLRB 289 (1950). and IFlorida .Seel Corporation. 231 NLRB 651 (11977). 7 Since the iolations of Section 8(a)(1) which have been found herein were repeated and the case involves a dis- crinnlnl mtorN dlscharge. I shall recommend the issuance of a hroaid 8(ai) I order designed to suppress any and all viola- tions of that section, .dam andi Eve Cosmertics Inc.. 218 NIRB 1317 (1975: 7Thermo Elctirric Co.. Inc., 222 NLRB 358 (1970). CON( I I SiO()S OF L.AW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(21. (6). and (7) of the Act. 2. he .:nion is it labor organization within the meaning of Section 2(5) of the Act. 3. Bs discharging Andres S. Dixon because of his parti- cipation in authorized union activities. Respondent has viollated Section 8(a)(3) of the Act. 4. Bs interrogating Andrew S. Dixon regarding his union aictisities Respondent has interfered with, restrained. and coercedl an emplosee in the exercise of his rights as guii;iantccd in Section 7 of the Act thereby violating Sec- tion X8)t I() of the Act. 5. Bs informinig Dixon that Respondent would dis- chargei ans emplosec who filed unfair labor practice charges sWith the Boaird. Respondent has wrongfully inter- fered with. restrained. and coerced an employee in the ex- sc. nWc.ll[ f t t ,,,;f l It,, : * ( o. 118 NI RB 710, 1 Iq1,) 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ercise of rights guaranteed by Section 7 of the Act in viola- tion of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 The Respondent, Wright, Schuchart, Harbor/Boecon/ Bovee, Crail/GERI, A Joint Venture, Richland, Washing- ton, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees in an effort to ascertain their interest or activity on behalf of a union, or other ef- forts of the employees to engage in concerted activity. (b) Threatening to discharge or otherwise discriminate against any employee because he has filed charges with the National Labor Relations Board. (c) Discharging or otherwise discriminating against any employee because of the employee's union activity. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. s In the event ni exceptions are filed as provided by Sec. 102.46 of the Rules and Regulatilons of the National I.abor Relations Board, the findiigs, co.nclusins, and recommended Order herein shall, as provsided ir Sec 102 48 of the Rules and Regulations, he adopted by the Board and becorme its findings. cOInclusions, and Order, and all objections thereto shall be deemed waived fot all purposes 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Andrew S. Dixon immediate and full rein- statement to his former or substantially equivalent position without prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of earnings or other monetary losses suffered by him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 all other records necessary for de- termination of the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its principal office in the city of Richland, Washington, or such other places as the usual notices to employees are posted, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by an authorized representative of Respondent, shall be post- ed 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 customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 'In the event that this Order is enforced b) a Judgment of a United States ('ourt 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." 786