Combustion Engineering, Inc.

COMBUSTION ENGINEERING, INC. Combustion Engineering, Inc. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Lodge No. 169, AFL-CIO. Case 7-CA-6783 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 19, 1969, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner' s Decision . Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision, and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. In his exceptions, the General Counsel contends, inter alia, that the Respondent harbored considerable animus toward Bird, the alleged discriminatee, for his filing of a grievance concerning overtime pay, and for his protest concerning the amount of showup pay to be paid on the day the crew was terminated; and that the Respondent condoned any inferior work performance prior to the hydrostatic test incident, and thereafter condoned any activity by Bird involving that incident, by retaining Bird as an employee until the layoff of the crew on which he worked. We find no merit in these contentions. In regard to the question of animosity, the Trial Examiner correctly noted that the Respondent was informed by the union steward, prior to its hiring of Bird, that Bird was an agitator and would make trouble and that pursuant to the contract it did not have to hire Bird, but that in spite of this warning the Respondent did employ Bird on the Trenton 'These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner to which the Charging Party and the General Counsel have excepted . After a careful review of the record, we conclude that the Trial Examiner 's credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing those findings . Standard Dry Wall Products, inc., 91 NLRB 544, enfd . 199 F.2d 362 (C A. 3). 521 Channel job, and assigned him to a foreman who was his personal friend. The General Counsel, however, points to the memorandum and testimony of Respondent's Superintendent Stanley, who referred to Bird as "the great emancipator" and "A self-styled, self-appointed supersteward." In our opinion, while these characterizations appear rather derogatory, they are not demonstrative of considerable animus on the part of the Respondent. Finally, it is only logical that the complaints and the memorandum regarding Bird would arise when they did, following within a reasonable time the actions of this employee, and the completion of the work. In regard to the question of condonation of Bird's activities, the validity of Respondent's reason for not firing Bird, because they were afraid of a work stoppage among the followers of Bird, is shown not only by the support given to Bird by other employees in his actions on the Trenton Channel job, but especially by the walkout which occurred on the St. Clair jobsite after the Respondent refused to hire Bird, which walkout occurred in spite of instructions by union officials not to take any such action. In view of the above, and for the reasons set forth by the Trial Examiner, we adopt his decision in this proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on May 28, 1968, by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Lodge No. 169, AFL-CIO, herein called the Union or the Boilermakers, the Regional Director for Region 7 of the National Labor Relations Board, herein called the Board , issued a complaint on July 31 , 1968, on behalf of the General Counsel of the Board against Combustion Engineering, Inc., herein called the Company or the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer to the complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, the hearing in this case was held before me in Detroit, Michigan, on October 9, 10, 31, and November 1, 1969. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: 177 NLRB No. 35 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent maintains its principal office and place of business in the city and State of New York Respondent maintains other places of business in the State of Michigan and several other States of the United States. At these various places Respondent is engaged in the manufacture, sale and distribution of steam generating equipment, air and water pollution control equipment, and related products. The St Clair jobsite at St. Clair, Michigan, and the Trenton Channel jobsite at Marine City, Michigan, are the only jobsites involved in this proceeding. During the year ending December 31, 1967, a representative period, the Respondent sold and distributed at its State of Michigan places of business, products of a value in excess of $50,000, which products were shipped from said places of business directly to points located outside the State of Michigan. During the same period, Respondent purchased and caused to be transported and delivered to its State of Michigan places of business, raw metal products and other goods and materials of a value in excess of $50,000, which were transported and delivered to its places of business in the State of Michigan directly from points located outside the State of Michigan. It is conceded, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues Thomas Bird, a member of the Union, was employed as a night-shift boilermaker by the Respondent in the erection of a very large steam power boiler for the Detroit Edison Company at Trenton Channel in the Detroit, Michigan, area. During his employment, several incidents occurred in which grievances were aired by Bird directly to the Respondent's management on the jobsite despite the fact that there was a Boilermaker job steward on the job. Respondent also alleges that Bird did not perform up to standard in his work. After the Trenton Channel work for night-shift boilermakers was completed and Bird was laid off with the rest of the night boilermaker crew, a second job of erecting a similar boiler was begun by Respondent at St. Clair, Michigan, in the Detroit area, also for Detroit Edison. Through the union hiring hall, Bird was referred to the job and was refused employment by the Respondent's chief erector. Counsel for the General Counsel and the Union allege that Bird was refused employment by Respondent because Bird had engaged, in airing the grievances, in protected, concerted and union activity. Respondent, on the other hand, contends that it refused Bird employment for good cause, mainly, that Bird had not performed up to standard on the Trenton Channel job and because he had been insubordinate. Thus, the issues presented by the pleadings and the opposing contentions are: 1. Did Bird engage in protected activities when airing grievances at the Trenton Channel job? 2. Was Bird's work performance on the Trenton Channel job sub-standard? 3. Did Respondent refuse to hire Bird for the St. CLair job because Bird engaged in protected, concerted and union activity on the Trenton Channel job? B. The Facts All of the field erection employees of the Respondent, on its various projects all over the country, are represented by unions. In order to resolve potential labor conflicts, in 1962 Respondent inaugurated prejob conferences with all the unions with which it deals. In the 7 years since, the charge in the instant proceeding is the only one ever filed against the Respondent. In the latter part of 1966 and the early part of 1967, following the usual prejob conference with the various unions including the Charging Union herein, the Respondent began to erect, under contract with Detroit Edison, a steam generating unit at a total cost of approximately $20 million. The size of the boiler to be erected by Respondent was to reach 14 stories. While the work on the project was progressing, on June 23, 1967, Ed Meyerhoffer, the boilermaker steward on the jobsite told night shift erectors (superintendents) Richard Nabors and William Lemons that a man named Tom Bird was being referred to the job who was an agitator and would bring trouble. Meyerhoffer suggested that pursuant to the contract, they did not have to hire Bird. Nevertheless, Nabors and Lemons, thinking that Meyerhoffer had a personal grudge against Bird, did not take the action suggested by Meyerhoffer and Bird was hired for work as a boilermaker on the job.' Neither Nabors nor Lemons knew Bird and had not knowledge that Bird , a member of the Union, had been on the Union Negotiating Committee since 1957 and, from 1963 to 1966 had been the Union' s business representative. During 1966 Bird tried for reelection to the post but was defeated by the present business representative, Harold Rasmussen. Thus Bird had been somewhat of a leader in the Union and had a following among the members, some of whom were employed by the Respondent on the Trenton Channel Job.' After Lemons hired Bird, the latter was assigned to a crew working with Carl Henni, a boilermaker foreman (pusher) who was a friend of Bird. Henni gave Bird the assignment of operating a signal telephone used in conjunction with the operation of hoisting and lowering material . Henni told Nabors that this assignment was given Bird because the latter could not physically perform strenuous rigging work . At times, while Bird was so employed, both Nabors and Lemons found him reading racing forms when he was supposed to be working. Bird would also use the public telephone on the site upon many occasions when he was absent from his work station for periods of from 30 to 40 minutes. Also, Bird went to the restroom excessively and for long periods of time. At times when Bird was away from his work station, Lemons observed Henni performing Bird's work.' 'From the uncontroverted testimony of Nabors and Lemons which I credit 'From the credited testimony of Bird 'From the credited testimony of Nabors and Lemons I do not credit COMBUSTION ENGINEERING , INC. 523 Upon numerous occasions both Nabors and Lemons spoke to Henni about this situation and told Henni that Bird was not performing his job. Nabors and Lemons also spoke to Parkhill, general foreman of the Boilermakers, and to Edward Rokuski, the job steward. Neither Lemons nor Nabors spoke directly to Bird because they interpreted the bargaining agreement between the Respondent and the Union as permitting only foremen to speak directly to rank-and-file employees concerning employees' job performance.' Although Henni denied on the witness stand that he ever spoke to Bird about these matters, Rokuski testified that he spoke to Bird about the complaints of Nabors and Lemons. Rokuski further testified that it was common knowledge that both Rokuski and Henni spoke to Bird about the latter's work performance. On one occasion Bird was involved in an unauthorized departure from the jobsite. He left early to go to a union meeting but instead of checking out his badge he gave the guard at the gate a false number so that the time would not be deducted from his pay. Nabors discovered this in performing his paper work later that night and deducted this time from Bird's pay. Bird did not complain or file any grievance over the matter.' At the time that Bird was employed on the Trenton Channel job, the Respondent was operating on an accelerated schedule and the men were working overtime everyday. The steam generator or boiler had to be completed and in operation by December 1967, or there was a very real possibility that there might be loss of electric power in the Detroit area.' By August 20, 1967, the Respondent began what is known as a hydrostatic test on the boiler. This is the test which determines whether a boiler can withstand pressure greater than the strength for which it is designed once the boiler is put into operation. The purpose of the test is to uncover any defect which might exist in the boiler or the parts which feed the boiler. Although a detailed description of this test is unnecessary for the purpose of this decision, simply put, the boiler is filled with water and an air pressure pump is then connected to the boiler to bring the boiler up to the necessary pressure. If there are leaks in the boiler the pressure forces water out through the leaks and they are thereby detected. When leaks occur, the boiler is drained to a point below the leak and repairs are then made. Thereafter, the pressure is built up once again and if no leaks or other defects appear, the boiler is checked out by insurance company inspectors for their final approval before acceptance by the company for whom the boiler is built. At Trenton Channel, the test of the boiler began during the day shift on August 20, 1967. After the boiler had been filled up and the pressure built up to approximately 1,500 pounds, a leak was discovered. The boiler was then drained below the level of the leak and repairs were begun during the night shift by the night shift crew. At that time, the quitting time for the shift was 3:30 a.m. However, in order to complete the repairs, the night shift continued working on the repairs until the day shift reported at 7 a.m.' The day shift finished the repairs on August 21. Henni's testimony to the contrary From the credited testimony of Lemons and Nabors as supported by the testimony of Henni and Rokuski. 'From the credited testimony of Nabors which went undemed by Bird on rebuttal From the uncontroverted , credited testimony of Raymond R Donahue, Respondent' s district superintendent Thereafter the boiler was again filled and pressure was again applied. When the pressure had reached approximately 4,000 pounds, which was almost the full test pressure, another leak was discovered. Thereafter the boiler was again drained to a depth below the leak. Again the night shift worked at repairing the leak until the day shift reported in at 7 a.m. on the 22nd. The leak repair was finished by the day shift on August 22 and the day crew again began filling the boiler. This filling of the boiler and pressurizing the same was continued into the night shift which began on the 22nd and ran into the morning hours of the 23rd. At approximately 2 a.m., which was 1 1/2 hours before the end of the night shift, the pressure had reached the full test mark of 4,485 pounds. The night shift erectors, Nabors and Lemons, were satisfied that the boiler was in good condition, as they could find no more leaks, and the boiler was holding the pressure. They therefore considered the boiler ready for the insurance inspectors who were to come in to make their inspection after daylight that day. Because the end of the night shift was at 3:30, Nabors and Lemons had the pump closed down and proceeded to their field office.' Thereafter, Lemons and Nabors went to the general foreman, Parkhill, and the union steward, Meyerhoffer, and told them that there was going to be no further testing on the boiler that night; that they did not want anyone inside it and all they wanted to keep on the shift was three or four men from the end of the night shift until the day shift came in. To this Parkhill and Meyerhoffer agreed. Lemons had made up his mind to do this because the test was virtually at an end and there was no necessity for anyone to be in attendance on the boiler except for two or three men to see to it that the employees of Detroit Edison did not wander into the area and perhaps turn valves or do something which could interfere with the test. All of the foregoing took place close to the 3 30 a.m. quitting time of the night shift. Just as Nabors and Lemons were about to start their paperwork in their field office, in came Bird, Henni, an employee named Dubie Peardon, and Meyerhoffer. It should be noted in connection therewith that up to this point the Respondent had used 12 men to make the hydrostatic test and these 12 boilermakers were working up to this point on the night shift. However, as noted above, only two or three or perhaps four were to remain on the job between the end of the night shift and the beginning of the morning shift. Prior to these four employees coming to the office, Bird had learned of the decision to keep on only three or four men from Parkhill.' Bird and Foreman Henni then spoke to Meyerhoffer who was positioned outside of the toolroom. Bird and Henni began arguing with Meyerhoffer about the Company's decision to keep the four men. Meyerhoffer went in to the toolroom and Henni followed screaming after him. Bird came to the door of the toolroom.'° When the four men went to the office used by Lemons and Nabors, Bird spoke first and questioned Lemons as to why only four men were being kept on the job. Lemons stated that the tests were completed except for the insurance inspection in the morning and they only needed a few people to virtually stand guard until the day 'From the credited portions of the testimony of Bird, Lemons, and Nabors 'From credited portions of testimony of Bird, Lemons, and Nabors 'From the testimony of Bird. "From the credited testimony of employee William Martt 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift arrived . Bird and Henni then both demanded that 12 men be kept on the job, this constituted the full crew of the night shift. They claimed that it was custom in Michigan to keep on a full crew until the test was completed; that it was also a safety measure . Then Bird told Lemons that if they did not keep on the full 12 men of the night shift until the morning shift arrived, he would go out and "blow the damn thing down" and they would all go home." By "blowing the damn thing down," Bird meant that they would relieve the pressure on the boiler and drain it, thereby undoing all the work that had been done previously by the day crew and the night crew. Despite these threats, at first Lemons refused and said only four men were to be kept on. There is some confusion in the record as to exactly what occurred next . However, it is certain that Bird put in a telephone call to the union business agent . The agent that was called was a Mr. Crippen. Whether Bird spoke to Crippen or whether Bird merely got Crippen on the telephone and then Henni spoke to Crippen is not clear from the record. Suffice it to say, however, that while Bird was making the telephone call Henni and Lemons were arguing in the background." Meyerhoffer then spoke to Crippen and explained to the latter why the Respondent only wanted four men to be kept on. Henni interrupted and grabbed the telephone from Meyerhoffer. Next Lemons got on the telephone and spoke to Crippen. Lemons told Crippen that the hydrostatic test had been completed and that there was nothing further to be done until the insurance inspectors arrived the next morning. Crippen requested that Lemons keep all the men to avoid trouble. Lemons finally capitulated. According to Lemons the reason he finally consented to keep on the full crew was that if the men did blow the boiler down, as Bird had threatened, the boiler could not possibly be ready for the insurance inspection the next day. This would have created a problem with the job schedule which, as noted above, was to be completed by December 1967, in order to insure sufficient electrical facilities for the city of Detroit. Therefore, with Lemons' ultimate consent, the full crew stayed on during the night until the day crew arrived at 7 a.m. in the morning." The next morning, Meyerhoffer, who had argued with Bird, quit in disgust . He felt, according to various witnesses, that his authority as steward had been undermined by Bird. Around the same time that Meyerhoffer quit, the boiler was inspected and it was approved by the insurance underwriters . On the next night, August 23, when the night shift came on, a new steward took over . His name was Edward Rokuski. During the next week, Bird was involved in another incident. He complained to steward Rokuski that the Respondent had failed to pay him double time for making him work through a lunch period . Rokuski, in his capacity as steward, called Rasmussen and the local union president. Both the president and Rasmussen agreed at first that Bird was not entitled to the double pay he claimed . However, a grievance was filed and the "From credited testimony of Lemons and Nabors. "From credited portions of the testimony of Martt , Henni, and Lemons. "All of the foregoing from credited testimony of Lemons . Cnppen did not testify. It should be noted that in connection with the threat to blow the boiler down , Henni claims that he was the one who threatened to drain the boiler . However, Henni did not even understand what the term "blow the boiler down" meant, and it could not have been Henm , in my opinion, who made the remark . I therefore credit the testimony of Lemons as supported by the testimony of Nabors both by reason of the foregoing and by observation of them on the witness stand. Respondent reviewed its position and finally agreed to pay Bird the overtime money.16 Approximately a week or two later, as of September 1, 1967, Raymond Donahue was appointed district superintendent for erection by the Respondent. As such Superintendent Donahue was in charge of the area including Detroit, Michigan. A couple of weeks after Donahue's appointment, Nabors noticed one night that Bird was not at his work station. He went to the restroom but could not find Bird there. This was about an hour and a half before quitting time. Nabors continued his search until quitting time when he stationed himself at the end of a bridge which overlooked a canal leading to the employees' dressing room. At quitting time, when all of the other employees came over the bridge to change their clothes, Bird was missing. Nabors, mindful of the fact that Bird had wrongfully left the job and given a false number sometime before that, asked steward Rokuski where Bird was. Rokuski became angry and told Nabors that he was tired of this personal vendetta against Bird . He further stated that if Nabors wanted to fire Bird that he should go ahead and "we, (probably meaning the Union) would take it from there." Rokuski testified that Nabors had thought Bird had gone home early when actually Bird had missed the elevator that would take him from the jobsite to the bridge crossing the canal." Soon after his appointment as district superintendent, Donahue began to receive, through Stanley, the general job superintendent, Nabors, and Lemons, complaints about Bird's performance on the job. Their complaints were to the effect that Bird was creating disturbances on the jobsite; that he was reading racing forms and was away from his worksite for long periods of time and that he had threatened to "blow the job." Donahue also received a detailed written report as to what had happened the evening of August 22 and 23 when the decision to reduce the crew had been reached by Lemons and Nabors during the hydrostatic test. However, according to Donahue, although he considered terminating Bird he was reluctant to do so. He learned that Bird had considerable influence among the employees on the job and Donahue was not willing to take a chance of a work stoppage because of the deadline for the completion of the boiler. On October 10, 1967, it was determined that the night shift was no longer necessary and they were terminated. This decision was made on instructions from Detroit Edison and had not been expected. Therefore, Nabors had to hurriedly go to the office to prepare the payroll. The night crew had not yet quite reported but when they came they were told that they were not to work but were laid off. With that, Bird came to Nabors' office and demanded of Nabors how much they were going to be paid for their showup time. Bird explained to Nabors that he heard that they were only going to get 2 hours showup time. Bird insisted that they were entitled to 4 hours. According to Nabors, Bird turned to the other employees who were there and told them not to accept their checks. However, after some discussion with the steward the men , including Bird, did accept their checks and left thejob.16 On October 16, 1967, Stanley, the superintendent of the Trenton Channel job, submitted to Donahue a written "From credited portions of the testimony of Bird and Rokuski "All of the foregoing testimony from credited portions of the testimony of Nabors and Rokusk,. "All the foregoing from the credited testimony of Nabors as supported by certain parts of the testimony of Bird COMBUSTION ENGINEERING, INC. memorandum concerning Bird . In that memorandum, Stanley told Donahue that from the time Bird came on the job his prime purpose seemed to be to create dissension among the men . The memorandum then proceeded to relate Bird's part in the contentious argument which occurred over keeping the night crew on during the hydrostatic test on the night of August 22-23. Then Stanley went on to tell Donahue that by reason of Bird's actions the Company was literally "black jacked" into keeping on unnecessarily a large number of men costing the Company many dollars . The memorandum ended with Stanley's recommendation that Bird not be rehired at any time or place. About the same time, as the completion of the Trenton Channel job approached , the Respondent began to erect a similar boiler at the jobsite in St. Clair , Michigan, known as the St. Clair job, James Waters was the Respondent's erection superintendent on the job . Two employees in one of the work crews of the boilermakers on the job had been laid off for cause . The foreman of that crew had many times asked Waters about replacements for these two. Late in the afternoon of January 17, 1968, Waters asked William Bass, the boilermaker job steward, to telephone the hiring hall and see if he could get the names of the two top men on the list. Bass called the hall but there was no answer as it was late in the afternoon . However, Bass told Waters he would try later . Later that evening, Bass did contact Rasmussen, the union business representative, who in turn informed Bird and another member of the Local to report to the job the next morning." Bird, in accordance with Rasmussen's instructions, reported to work at the jobsite at St. Clair the next morning . Bass, as union steward, took him to the office where Bird was introduced to Waters. When Waters found out who Bird was, he told Bass that he was not going to sign him up. When asked why he refused , Waters admitted that he had orders not to hire Bird . Bass asked Waters to give Bird two hours showup pay and Bass refused this. Bass then took Bird back to the change shanty. Then Bass tried to get in touch with Rasmussen. Rasmussen was out of the office but finally called Bass back at about 11 in the morning and told Bass to try to get some kind of information from Waters . Rasmussen also told Bass to keep everybody calm and that he, Rasmussen, would appear at the job on the following morning. 1e In accordance with Rasmussen 's instructions, Bass and Bird accompanied by some other employees went to see Waters again . Bass asked Waters to reconsider his decision but again Waters refused. Then, within a short period of time thereafter, Waters notified Bass that the Detroit Edison people wanted Bird off their property. Bass took Bird in the company truck to the parking lot and Bird left. Later in the day, after Bird had left, and after the lunch hour , most of the boilermaker employees left the job. This shut the job down. Early the next morning Rasmussen appeared at the St. Clair job and told the men to go to work. Then, accompanied by Bass he went to see Waters who told the two that he had not ordered any men from the hall. Waters stated that he did not tell Bass to order the men from the hall but merely to find out who the next men on "There is a conflict in testimony as to whether Waters actually asked Bass to order some men for the job or whether he merely asked Bass to find out who were the next two men on the hiring hall list . In view of my disposition of this proceeding, I find it unnecessary to resolve this issue. "A11 of the foregoing from the credited testimony of Bass and Waters. 525 the list were before they were ordered . Rasmussen then telephoned Donahue who confirmed Water's position." On January 22, Bird filed a grievance pursuant to the contract with Rasmussen, as business agent of the Union. This grievance alleged that Bird had been discriminatorily refused hire by the Company . Seven days later he filed a second grievance in which he claimed that the Respondent had violated the exclusive referral clause of the contract between the Union and the Respondent. The grievances were processed through the International president who assigned one of the International vice presidents to handle it . Thereafter, on February 17, 1968 , a meeting was held at the Union's offices between representatives of the Respondent and representatives of the Union . Rasmussen stated the nature of the grievance to Donahue and an attorney for the Respondent. After this, the attorney handed Rasmussen a copy of the October 16 , 1967, memo Stanley had written to Donahue concerning Bird's behavior on the night of the hydrostatic test . At the same time he told Rasmussen that this memorandum indicated why they were not going to hire Bird . This was the end of that particular grievance meeting and nothing further was accomplished. Thereafter, the Union hired counsel to process the grievance to arbitration but instead of going to arbitration as the Respondent desired , pursuant to the arbitration clause of the bargaining agreement, the Union filed the charge which is the basis for this proceeding. C. Analysis and Concluding Findings Counsel for the General Counsel , as heretofore set forth, contends that Bird was refused employment at the St. Clair job because he engaged in protected , concerted activity at the Trenton Channel job . He makes no mention in his brief, nor does he attempt to overcome, the testimony by Respondent's officials that Bird's work performance at the Trenton Channel job was unsatisfactory. He argues, for the most part, that Bird, in protesting Respondent's management' s decision to refuse to keep the full boilermaker crew on the job the night of August 22-23, was engaged in protected , concerted activity and since this was the chief reason why Bird was refused employment at St. Clair, the Respondent's refusal was discriminatory and violative of the Act. The Respondent, on the other hand, contends that it refused to hire Bird on the St. Clair job because he was an unsatisfactory employee at the Trenton Channel job and because in protesting during the hydrostatic test he engaged in unprotected activity. On the basis of the facts as set forth in the section of this Decision immediately above, there is no doubt that Bird did give cause as an employee for the Respondent lawfully to refuse to hire him at St . Clair. When he was supposed to be working Bird read racing forms, spent time making lengthy telephone calls, went to the restroom more frequently and for greater periods of time than was necessary, gossiped with other employees and had Henni, his foreman, perform his work for him . In short, he did not perform a day's work for a day's pay. Nevertheless, Respondent does not deny that a basic cause of its refusal to hire Bird for the St . Clair job was his behavior on the night of August 22-23 during the hydrostatic test on the boiler at Trenton Channel . This is "From the credited portions of testimony of Rasmussen and Waters On the witness stand, however, Waters admitted that if someone but Bird had been referred to the job Waters would have hired him. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrated in Respondent's reliance on the memorandum of October 16, 1967, from Stanley to Donahue, as the reason for its refusal. Respondent argues that there was a contractual procedure to be followed if employees had a grievance, which procedure Bird failed to follow. Moreover, in going over the head of Meyerhoffer, who as a job steward had assented to the Respondent's arrangement that night, Bird ursurped Meyerhoffer's authority and therfore, his activities were no longer protected. In effect, Respondent argues that employees who have grievances they believe to be meritorious, must abide by all decisions relating thereto made by the bargaining representative. However, Section 9(a) of the Act gives to employees the right to present grievances to their employer and have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective-bargaining agreement and the bargaining agent has been given the opportunity to be present at such adjustment. Thus, where an employee complained personally upon numerous occasions to his employer about matters concerning the collective-bargaining agreement between the employer and the employer's bargaining representative, the Board held the airing of these grievances constituted concerted, protected activity.20 Also, the protection of Section 9(a) of the Act is extended to dissidents who try to influence the decisions of the bargaining agent. The court in such a case held, "Attempts by some members of a union to bring about a change in the union's attitude about particular collective-bargaining contracts is certainly `concerted activity' protected by Section 8(a)(1) of the Act. The Employer cannot defend his interference by saying that concerted activity was directed against the position taken by the Union and not directly against the employer."" The merit or lack of merit of the grievance is immaterial. The protection of the Act is still available.22 Thus it would seem, and I conclude, that Bird's disagreement with Union Steward Meyerhoffer and his inducing Lemons to consent to keeping a full crew until the morning shift arrived, was activity protected by the Act. Whether or not "N Y Trap Rock Corp, Nytralete Div, 148 NLRB 374 "N L R B v Nu Car Carriers, 189 F 2d 756, 760 (C.A 3) enfg 88 NLRB 75 See also Aerodex, Inc, 149 NLRB 192, 198 "Top Notch Manufacturing Company, Inc, 145 NLRB 429 , 432, and cases cited therein it was the practice in Michigan to keep a full crew during all parts of a hydrostatic test becomes immaterial. The question remains, however, whether the means utilized by Bird in going over the head of Meyerhoffer and in persuading Lemons to keep on a full crew, was such as to remove the otherwise protected activity from the Act's cloak of protection. As heretofore found, during the argument in Lemon's office, Bird threatened Lemons that they would "blow down" the boiler and go home if a full boilermaker crew was not kept on the jobsite between the hours of 3:30 a.m. and 7 a.m. Also, as heretofore found, the insurance inspectors were due to make their inspection in the morning and draining the boiler would have made this impossible, thus delaying the progress of the project which had a very critical completion date. In these circumstances, Bird's threat was not merely the usual economic threat of strike, but rather a threat to actually interfere with the Respondent's property and undo what had already been accomplished in the erection of the boiler. Moreover, Lemons knew that Bird had sufficient influence among its employees to provide the means of carrying out that threat. Under these circumstances, the threat became tantamount to a threat of industrial sabbotage and Lemons had no alternative but to capitulate. In view of the foregoing, I find and conclude that while the activity of Bird was of the type that would ordinarily be protected, the protection was lost when Bird made his threat to blow down the boiler. Thus Bird engaged in unprotected activity for which the Respondent had the right to discharge him or refuse to rehire him at other Respondent projects.23 Accordingly, I find and conclude that the Respondent refused to hire Bird at the St. Clair project because Bird performed at a less than satisfactory level at the Trenton Channel job and because Bird engaged in unprotected activity. I further find that Respondent thereby did not violate Section 8(a)(1) and (3) of the Act and shall recommend dismissal of the complaint in its entirety. RECOMMENDED ORDER It is hereby recommended that the complaint in this proceeding be, and the same hereby is, dismissed in its entirety. "Cf N L R B v Fansteel Metallurgical Corp, 306 U S 340, N L R B v IBE W (Jefferson Standard Broadcasting ), 346 U S 464