Bechtel Corp.

BECHTEL CORPORATION 503 Bechtel Corporation and James W. Daffer, Jr. Case 31-CA-2318 November 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY unrelated to any protected or union activities of those 18 employees. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respondent. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: On May 25, 1972, Administrative Law Judge 1 Richard D. Taplitz issued the attached Decision in this proceeding. 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The tale of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 As the record and the briefs adequately present the positions of the parties, Respondent's request for oral argument is hereby denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Las Vegas, Nevada, on March 7, 14 through 17, and 21 through 23, 1972. The charge was filed on March 8, 1971, by James W Daffer, Jr., an individual. The complaint issued on December 23, 1971, alleging that Bechtel Corporation, herein called the Respondent, violat- ed Section 8(a)(1) and (3) of the Act by discharging 18 employees on September 10, 1970, from a power plant construction site in South Point, Nevada The primary issue is whether these 18 employees were terminated because they were represented by Plumbers and Pipefitters Local Union No. 525, Untied Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, herein called Local 525, or whether the terminations, which occurred at the same time as the termination of more than 300 other employees who had engaged in an unprotected work stoppage, were FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation with its principal offices in San Francisco, California, is a general contractor in the building and construction industry. As a general contractor, it has built a number of power plants, including one at South Point, Nevada, herein called the project, for the Southern California Edison Company. During 1970, Respondent purchased and caused to be shipped to the project supplies and materials valued in excess of $50,000 directly from suppliers located outside of Nevada. Respon- dent is an employer engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 525 is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Events 1. The contracts Respondent began construction of a massive coal-fired electric generating plant on a 2,200-acre site at the project on June 7, 1967. The electrical output was to be 1500 megawatts, which is 20 percent more than the generating capacity of Boulder Dam. By September 10, 1970, Respondent employed approximately 1,350 employees in 13 separate crafts at the project. At that time, approximate- ly 370 of those employees were plumbers, welders, steamfitters, and pipefitters (all of whom are collectively referred to as pipefitters) whose job it was to work on the plumbing and pipefitting systems at the project. These employees had been referred to the project by Local 525 and were covered by two separate contracts. The first was a national construction agreement that Respondent, through its membership in the National Constructors Association, had with the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called the United Association. The United Associa- tion is the parent organization of all its pipefitter locals, including Local 525. The current national construction agreement is dated July 30, 1968, with an addendum dated January 27, 1970. It covers all journeymen and apprentices engaged in the installation of all plumbing and/or pipefitting systems in Respondent's employ and provides 200 NLRB No. 80 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in part that Respondent agrees to be bound by the hiring practices in the local area not inconsistent with the terms of the national construction agreement; that jurisdictional disputes are to be adjusted in accordance with the procedure established by the National Joint Board for the settlement of jurisdictional disputes, or its successor agency, without any work stoppages by employees; that wage rates shall be in accordance with wage rates established in agreements negotiated by the local union and the "historically recognized contractor bargaining group"; that where the local agreement provides for a higher overtime rate, lower hourly workday or workweek, paid holidays or vacation or premium pay on National, State, or other holidays, the local agreement shall prevail, but that with respect to all other provisions of the local agreement dealing with the terms and conditions of employment, other than hiring, the provisions of the national agreement shall prevail, that all questions relating to the territorial jurisdiction of a local union shall be decided by the United Association; and that any provision of a local collective-bargaining agreement contrary to, or in conflict with or contrary to the intent of the national agreement, shall not be enforced as to employers working under the national agreement. In addition, it provides: "During the life of this agreement each of the signatory parties agrees that there will be no strikes, work stoppages or walkouts by members of the Union or by the Employer. This no-strike, no walkout commitment is based upon the agreement by both parties to be bound by the grievance and arbitration provisions of this agreement...." The national agreement goes on to elaborate a detailed grievance procedure which culminates in binding arbitra- tion. The second contract is a labor agreement between the Associated Plumbing and Airconditiomng Contractors of Nevada, Inc., and Local 525 Respondent is not a party to that contract which, among other things, establishes procedures for referrals. Respondent is bound by that contract only to the extent that it is referred to in the national construction agreement. 2. The pipefitter strikes preceding September 10, 1970 About a week before the construction work began on June 7, 1967, Respondent's construction manager, William Henry, had a prejob conference with various trades, including Local 525. At that conference he told Local 525's then business manager, Dave McGinty, that the job would be run under the national agreement which did not provide for the payment of high time (premium pay for work on temporary scaffolding or an area where there might be a fall). About July of 1968, the job had reached a point where such work was needed and a dispute arose as to whether high time should be paid. Henry spoke to Francis Ford, an International organizer for the United Associa- tion, concerning high time and Ford sent a telegram to McGinty stating "Please be advised that under the terms of the national construction agreement the Bechtel Corpora- tion is not required to pay high time or hazard pay on their California Edison project near Bullhead City, Arizona." McGinty read the telegram to the pipefitters on the job on July 2, 1968, at about 11 a m. All of the pipefitters then walked off the job. They returned to work the following day, July 3, 1968. At the time, there were about 20 pipefitters working and all participated in the work stoppage. High time has not been paid on the project. On July 29, 1968, Respondent met with Zeke Cashman, Respondent's piping superintendent, to discuss the "buddy system" under which a pipefitter-welder would always have a pipefitter with him. Cashman told McGinty that the buddy system was not to be followed and that Respondent would assign employees as it saw fit. On July 30, 1968, a welder-pipefitter was instructed to work alone and he refused to do so. He was discharged about 8:36 a.m. and all of the pipefitters walked off the job. There were approximately 30 pipefitters at that time. They all returned to work the following day. About a week later, some other pipefitters were terminat- ed for refusing to work alone and again all of the pipefitters walked off the job. Subsequently, a meeting was held with representatives of the United Association and the Local in which the United Association confirmed to the Local that it was a contractor's prerogative to assign people as it saw fit. Thereafter the buddy system was not used. In May of 1969, certain auxiliary turbines which were power sources for feed pumps arrived at the jobsite. Each weighed about 45 tons. They were to be picked up by an overhead crane and put into position. That work was assigned to the ironworkers, but the pipefitters claimed it. There were about 114 pipefitters on the job at the time and they all stopped work for about 30 minutes. During that time, the problem was called to the attention of McGinty, who called the shop steward and told him that the work belonged to the ironworkers. When the pipefitters were told this, about 30 minutes after the work stoppage began, 50 out of the 114 pipefitters walked off the project while the others went back to work. The 50 returned the following day. Respondent pays a so-called subsistence rate which is a daily rate for work done in remote areas. That rate is negotiated with the United Association for each specific job. On August 15, 1969, the subsistence rate was increased in the local agreement while Respondent was negotiating with the United Association for a new rate for the project under the terms of the national agreement When the new local rate was not paid on August 15, 1969, all of the pipefitters walked off the job. There were 180 pipefitters at that time. They all returned to work the following day. About October 1969, a certain crane had to be lifted about 40 feet from the ground to a turbine deck The ironworkers were assigned the work of lifting the crane. The pipefitters also claimed that work. Someone called all of the pipefitters to the turbine deck and they left work and went to the turbine deck where a fight broke out. Respondent's supervisors stopped the fight and the pipefitters returned to work. About a week later, Respondent assigned the removing of certain concrete hatch covers on the turbine deck to ironworkers. The pipefitters protested the assignment and all 200 pipefitters who were working at the time walked off the job. They did not return that day but came back sometime later. BECHTEL CORPORATION On or about April 10, 1970, Respondent assigned the work of installing certain piston-type air operating cylin- ders to the millwrights. Prior to that time, Respondent's representatives met with the pipefitters and millwrights but no agreement could be reached as to the assignment of that work. The pipefitters protested the assignment and walked off the job for about 4 hours. On April 17, 1970, the pipefitters were paid for the week in which the 4-hour work stoppage occurred. They were not paid for the 4 hours they had struck and because of that all of the pipefitters walked off again. There were about 250 pipefitters at that time. Respondent reacted to that walkoff by discharging all 250 pipefitters and giving them termination slips marked voluntary quit. Thereafter, meetings between representatives of the United Associa- tion, Local 525, and Respondent led to Respondent's agreement to hire all of the men back. They were rehired on April 22,1970. Up to that time, all work, except for some minor startup operations, was performed by a single day shift. In early May 1970, multiple shifts were instituted. In August of 1970, the Union took the position that overtime should be worked only by local men and not by travellers (travellers were members of locals of the United Association other than Local 525 who worked through the Local 525 hiring hall). The Union also demanded that either all of the men work overtime or that none of them do so. Respondent assigned overtime to some of the pipefitters and all of the pipefitters who were assigned such work refused to perform it. On August 29, 1970, two pipefitters were assigned to do certain work on the graveyard shift and they refused to do it. All of the other pipefitters on the graveyard shift walked off the job. Summarizing the above findings, there were ten work stoppages by the pipefitters from the commencement of the job until September 10, 1970, plus a refusal by certain men to perform overtime work. In all ten of them, all of the pipefitters on the job engaged in the work stoppage. In one of those ten, some of the pipefitters continued the work stoppage even after a representative of Local 525 told them to return to work. The General Counsel does not contend that any of these strikes or the strike of September 10, 1970, which is discussed below, were protected under the Act. All were clear violations of the no-strike clause contained in the national agreement. 3. The jurisdictional dispute of September 9, the strike of September 10, 1970, and the subsequent manning of the job a. The jurisdictional dispute and the strike On September 9, 1970, Respondent was getting ready to begin certain startup work and all the crafts were instructed to engage in a general cleanup of the project. At that time, it was also known that on the following day a high level meeting was scheduled between representatives of Respondent, the United Association, and Local 525. ' Weller testified that at the meeting Construction Manager Henry said that the plumbers and pipefitters on the jobsite were suspended. That testimony was not corroborated by any of the other participants at the 505 Respondent's construction manager, William Henry, met on that day with all his superintendents on the day shift and told them to inform their general foremen that the men were to be given adequate time to clean up their work areas in preparation for the startup procedures that were to take place. He informed them that California Edison had requested the job cleanup for safety and fire prevention reasons, that they were to use whatever manpower and time was needed to do the work by the end of the day shift, and that any remaining material would be cleaned up by the laborers. By the end of the day shift, the pipefitters had not cleaned up their tools and equipment to the satisfac- tion of Respondent and the laborers were instructed to roll back welding leads and to complete the cleanup on an overtime basis during the swing shift. The pipefitters on the swing shift objected to the laborers cleaning up their materials but they remained on the job as did the graveyard shift. The following morning, September 10, shortly after the day shift began at 7 a.m., all of the pipefitters walked off in protest against the laborers doing what they considered to be their work. There were approximately 320 pipefitters on the day shift and all of them walked off. The regular hours for the day shift were 7 a.m. to 3 p.m.; for the swing shift, 3 p.m. to 11 p.m.; and for the graveyard shift, 11 p.m. to 7 a.m. However, certain startup crews and other special project employees reported before the beginning of the regular shifts and overtime work was common. Twenty-five to 30 pipefitters were scheduled to report for work on the swing shift and about 20 on the graveyard shift on September 10, 1970. b. The meeting between Respondent, the United Association, and Local 525 At about 9:30 a.m. on September 10, 1970, the participants in a high level meeting arrived at the project. R. E. Atkinson, Respondent's corporate manager of labor relations, and Wallace J. Barrett, Respondent's labor relations supervisor, were there. United Association was represented by Martin J. Ward, its assistant general president (and subsequently its general president), and Bill Francis, the general organizer. Richard A. Weller, Local 525's business manager, and others were also present. When the group arrived at the project, they were told by William Henry, Respondent's construction manager at the site, that a strike was in progress over a jurisdictional dispute which included the pipefitters. Weller, the repre- sentative of the striking pipefitters, testified that the news came to him as a shock. However, there is no testimony that he or any other representative of the pipefitters made any effort to have the pipefitters return to work. In spite of the strike, the meeting went on and the participants discussed such matters as work stoppages, sabotage, sniper fire, and nonproduction. In general, the participants talked about a long line of grievances at the jobsite and about Respondent's contention that Local 525 was not properly administering the terms of the national agreement.' The meeting ended about noon. Barrett and Henry remained meeting , it is not very believable that Henry would have made a decision of that nature on his own before conferring with his two superiors, Atkinson and Barrett, both of whom were on the scene, and the testimony set forth (Continued) 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the job while Assistant President of the United Association Ward and Corporate Manager of Labor Relations of Respondent Atkinson, together with some of the others, returned to Las Vegas Ward and Atkinson were the principal participants in the second meeting which took place in Las Vegas from about 3 to 5 or 5 30 p m that day. Atkinson renewed the demand he had made in previous communications with the United Association, that Respondent be given relief under the national agreement for what it considered to be a grievance condition on the job Ward agreed that Respondent's charges were justified and he stated that he would recommend to the United Association president that the United Association take jurisdiction over the job He mentioned the possibility that the United Association might award jurisdiction to another local He also stated that if Local 525 presented obstacles, he would recommend to the general president that the geographical boundaries of Local 525 be limited to the city of Las Vegas Between 4.30 and 5 p.m., Atkinson called Barrett, who had remained on the jobsite, and asked hires whether anyone had showed up for the swing shift which had been scheduled to report about 3 p.m. Barrett answered that no one had Between 6 and 6 30 p.m, Atkinson called Henry and spoke to him while Barrett listened on the extension. Atkinson said that there was every indication that the United Association would be taking over jurisdiction under the national agreement and he told Henry to terminate all of the pipefitters on a voluntary quit basis. Henry then called Joe Palozzi, the office manager, and told him to get his payroll people together to start processing checks and terminations for the pipefitters He also called Brian McCullough, a project superintendent, and told him to return to the project to supervise the signing of the termination notices The office staff worked throughout the night until the last of the termination checks (these checks were for the amount still due after payment of the last regular paycheck) and termination slips were completed about 4 a in on the following morning, September 11. All of the pipefitters on Respondent's payroll, about 370 at that time, were terminated The termination slips were dated September 10. 1970, showed voluntary quit as the reason for termination, and all contained a blank space next to the item "eligible for rehire." About 7 am on September 11, 1970, Henry called Weller and told him that all the pipefitters were terminat- ed. About 10 a in that morning, Weller called Henry back and asked whether the steward could come to the project and pick up the checks so that they could be distributed at the union hall Henry agreed and the great bulk of the checks and termination slips were sent to the hall where they were distributed to the men c. The manning of the job after September 10, 1970 On September 15, 1970, Peter T. Schoemann, general president of the United Association, sent the following telegram to Weller This is to notify Local 525 of Las Vegas, Nevada, that under the provision of Section 2 of the United Association constitution, Local 525 no longer has trade or territorial jurisdiction of the Mohave Steam Plant of Southern California Edison Company located at South Point, Nevada, Bechtel Corporation , general contrac- tor. As general president of the United Association, I am placing this construction job under my supervision and control . This order to be effective at seven a.m., September 16, 1970. This action has become necessary because of the substantiated complaints of the Bechtel Corporation, general contractor , and Southern California Edison Company, owner, regarding repeated work stoppages by Local 525 in violation of the national construction agreement, and the proven failure of the Local 525 members on this job to perform fair day's work. If there is any harassment by Local 525 or its members of employees sent to this job under my direction or any harassment of the owner , any contractors on thejob, or any interference with their equipment or supplies, it could lead to further disciplinary action, including the filing of charges under 226 of the United Association constitution. Thereafter, the United Association assigned jurisdiction over the job to Local 250 of the United Association in Los Angeles, California, and the pipefitting work at the project was done by employees referred from the Local 250 hiring hall. During the first week of October 1970, representatives of Respondent, the Unions , and various public authorities met to discuss the problem. It was agreed that 20 apprentices who had worked through Local 525 would be returned to the job. Those apprentices could not receive travel cards and only worked through the Local 525 hiring hall. There was no further agreement and the parties arranged to meet again later in San Francisco. On October 22, 1970, a second meeting was held . Ward was present for the United Association as were officials for Local 250 and 525. J . J. O'Connell, vice president of Respondent , was also there. At that meeting, it was agreed that 20 apprentices from Las Vegas would be put to work immediately; that 20 additional journeymen were needed immediately and that one-half would come from Local 250 and one-half from Local 525 with fringe benefits for Las Vegas being paid into the Las Vegas local; that representatives of Local 250 and 525 would work together in the future on manning the project as required; and that there would be no prohibition against Las Vegas men but that all pipefitters could be referred through Local 250 Subsequently, Weller called Henry and claimed that there was not an equal distribution of the work as far as he was concerned and that men that he had tried to have dispatched through Local 250 had not been accepted. Weller followed this up with a letter to Henry dated January 13, 1971, in which he stated in part: According to our mutual agreement at your San Francisco office, it was agreed that there would be no below convincingly established that the decision with regard to the pipefuters was in fact made later in the day I. therefore, do not credit Weller's testimony in this regard BECHTEL CORPORATION 507 discrimination against the rehiring of members of Local Union 525. Since that time, there has been a constant flow of men to the job. At the present time, we have 29 men on the job. My latest report indicates they are being sent to the job from all points. Men from Utah, Idaho, Northern California, and some from the midwest Yet, I don't seem to be included in these calls. . I certainly hope you will use your efforts in averting a forthcoming problem and move quickly in seeing that our men are returned to the job in appropriate numbers. Within a week, Henry called Weller and told him that it was up to Local 250 to man the job. There is no allegation in the complaint that Respondent or Local 250 violated the Act by the manner in which Local 250 referred employees. In addition, there is no evidence in the record, other than the testimony of Weller that he believed that the Local 525 men were discriminated against, that such discrimination in fact took place. 4. The 18 alleged discriminatees a. The discharges and the theory of the parties All the pipefitters on the payroll were discharged.2 Respondent did not distinguish between Local 525 members and travellers, nor was there a distinction between day, swing, and graveyard shift employees. There was not even a distinction between employees who were scheduled to work and those who were on approved leave of absence; all were fired. The General Counsel contends that Respondent, through Henry, ordered the guards not to allow swing and graveyard shift pipefitters on to the project; that 13 out of the 18 alleged discrimmatees either reported for work on the swing or graveyard shift for September 10 or were prepared to go to work, and that those 13 were prevented from working by the guards or Respondent's officials 3 The General Counsel also con- tends that the other five employees were on approved leave of absence on September 10. In addition, it is alleged by the General Counsel that none of the 18 employees even participated in a work stoppage against Respondent at the project. It is the theory of the General Counsel, as stated in part in a bill of particulars set forth in the record, that Respondent violated the Act where, under all the circum- stances of the case, it discharged employees who, because of willingness to work or leave of absence, had not participated in the September 10 strike and who had never participated in any prior strike. Respondent argues that all of the pipefitters on September 10 could be properly lumped together as unprotected strikers, and that, even if the General Counsel's factual assertions were correct, they would not constitute a violation of the Act. b Respondent's instructions to the guards Robert J. Fogerty owns and operates a security service known as Valley Patrol. Respondent is one of Valley Patrol's customers. The security company hires, fires, and assigns work to its own guards. Respondent has no say in those matters. Normally, between two and four guards are furnished for each shift. The normal procedure is for the guard to allow any employee in or out during an open gate period when shifts change. However, if an employee comes in at other than an open gate time, he is to sign in at the guard shack. The guards have flat standing instructions from Fogerty that they are not to take part in or make any comment concerning a labor dispute at the project. He also left standing instructions that they were not to prevent any authorized persons from going in the premises. If a person tried to enter as to whom there is a doubt, they were to contact Respondent's office and Respondent was to make the decision. Any major instructions or changes in procedures that Respondent wished to communicate to the guards were told to Fogerty and not to the guards directly, as the guards were employees of an independent contractor and not of Respondent. A hearing was held before the employment security department of the State of Nevada on November 19, 1970, in which testimony was taken concerning the strike of September 10, 1970. A certified copy of that transcript shows that Henry testified concerning the September 10 strike and was asked, "When the men for the swing shift showed up, what did the guards at the gate tell them, what did you instruct them to tell them?" The transcript indicates that Henry answered, "We told them that all the pipefitters had been terminated, and their checks were in the local." Virgil L. Johnson, a pipefitter who was present during that hearing, testified that he heard Henry's remarks on the stand and that the transcript was accurate. Henry, on the other hand, averred that the transcript was inaccurate and that in fact he testified at the unemploy- ment insurance hearing that he gave those instructions to the guards on September 11 and not September 10, 1970. In explaining the error, Henry testified that there was much shouting and confusion in the hearing room, that there was no reporter present and that the transcript had to be obtained from a recording device used by the hearing officer. I credit Henry's assertion that the transcript of that hearing was in error. The transcript quotes him as saying that the checks were at the union hall and it is uncontra- dicted that the checks were not asked for by the Union or sent to the union hall until September 11. As Henry told the guards that the pipefitters' checks were at the Local, those instructions to the guards could not have been given on September 10, but could only have been made after the checks were in the Local on September 11. Indeed, on September 10, Henry could have had no way of knowing that Weller would ask for the checks on September 11. As is set forth in detail below, some of the pipefitters testified that they were told by guards that they (the guards) had received orders not to allow the pipefitters in to work. However, as is also set forth in detail below, there were so many differing versions of what the guards told the pipefitters that there is a clear implication the guards did 2 Though the termination slips referred to a voluntary quit of employees, made to guards, none of the pipefitters ever notified Respondent that they it is clear that a strike had taken place and not a quit The terminations were were not associated with the strike and no grievances were filed over the discharges discharges 3 Except for statements that some of the discharged employees allegedly 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have any firm policy dictated by a clear order from Respondent Whether or not some guard did tell some employees that the orders were to bar them from work, I credit Henry's testimony that he did not tell the guards to exclude the pipefitters until September 11, 1970. Sometime between noon, when the September 10 meeting ended, and 3 p in, when the swing shift was due to report for work, Henry, Barrett, and McCullough dis- cussed what they should do concerning the swing shift. They agreed that if the swing shift pipefitters did show up for work, no action would be taken to prevent them from working. Henry instructed McCullough to inform the guard service, through Fogerty, that any pipefitter who came to work was to be put to work He told McCullough that he wanted to make it absolutely clear to the guards that the swing shift people were to go to work if they reported in. The decision was made because they didn't know at that time what was going to happen with regard to the pipefitters and it applied to both the swing and graveyard shifts 4 McCullough then passed this informa- tion on either to Fogerty or to Respondent's own safety engineer, Hoppes, who was the one who usually transmit- ted information to Fogerty. In addition, McCullough mentioned the decision to a guard named Mills who was on the day shift Henry, Barrett, and McCullough all credibly denied that they informed the guards on Septem- ber 10 that pipefitters were to be excluded. Henry did know at about 6 p.m. on September 10 that all the pipefitters were to be terminated and that was before the graveyard shift was due to report. He credibly testified that he did not tell the guards to exclude the graveyard shift because he knew that it would take six or eight hours to process all the checks and, under the contract, Respondent could not terminate anyone until the checks were ready. Henry was on the jobsite about 6:45 a.m. on September 11 and at that time he instructed the guard service that the pipefitters were terminated and were not to be allowed on the site unless specific approval was given by the superintendents to allow the pipefitters to pick up their tools or personal belongings. c The participation of the 18 alleged discriminatees in the September 10 strike and in prior strikes I The leaves of absence-Ashley, Jones, Lloyd, Steel , and Vereen The local agreement provides that Respondent will not grant leaves of absence in excess of 10 regular working days unless Local 525 grants written permission. The Respondent's uniform practice is to grant leaves of absence when such permission is granted . Two of the pipefitters on the project, Lloyd Ashley and George Jones , were on such extended leaves of absence when the strike took place on September 10, 1970. Ashley was referred to the project by Local 525 on June 9 and was hired on June 10, 1970. The Union granted permission for Ashley to be on extended leave of absence for over 10 days by letter dated September 2, 1970.5 Ashley did not testify and there is no evidence in the record as to whether he did or did not participate in a prior strike. It cannot be determined from the record whether or not Ashley was one of the pipefitters who participated in the graveyard shift strike of August 29, 1970 The General Counsel has chosen to litigate on the theory that the alleged discriminatees were protected by the Act because they had not participated in the September 10, 1970, or prior strikes. The General Counsel does not contend that all the swing and graveyard shift pipefitters were unlawfully discharged because of the alleged lockout and presumably some of the pipefitters on those shifts were not included in the complaint because they had participat- ed in prior strikes. As he has adopted this theory, the General Counsel must establish facts to substantiate it. This he has not done with regard to Ashley and, therefore, there is a failure of proof. The Union granted the same permission to Jones effective August 31, 1970, by letter dated August 28. Jones credibly testified that he was on leave during the September 10 strike and he did not return to the area until September 20, when he reported to the union hall to find that he no longer had a job. Jones also credibly testified that he did participate in a work stoppage at the project for about 4 hours sometime between February and April 17, 1970, and that he was docked for that strike time. He also acknowledged that he was one of the employees who were terminated on April 17, 1970. Three other pipefitters, Dennis Lloyd, William Steel, and Douglas L. Vereen, also testified that they were on leave during the September 10, 1970, strike. Lloyd credibly testified that on September 5, 1970, he received permission from his foreman to take leave so that he could go archery hunting; that he did not notify Local 525 because leave was to be less than 10 days, that on September 10, he was away from the project; and that he did not return until September 12, when he went to the union hail and picked up his check and termination slip. Lloyd also averred that he never took part in any strike at the project. Respondent attempted to impeach that testimony by introducing company records that showed that Lloyd had been signed out at I p in. on August 15, 1969, together with some 78 other employees whose badge numbers identified them as pipefitters That was the date that the pipefitters walked off the job over the "subsistence rate" dispute. The records also show that many other pipefitters left the job between about noon and 1 p.m. Lloyd acknowledged that he had only worked part of the day on August 15, but he averred that he left on that day at noon with his foreman's permission to go shopping for equipment for the archery season which was to open the following week He also testified that he had no knowledge of a work stoppage that day. Lloyd's assertion that he was on the job just before the mass walkout and that he didn't have any knowledge of it is difficult to believe and it sheds doubt on his credibility generally Respondent's records indicate that he left with the other pipefitters and, as I do not credit his explanation, the inference is warranted that he participated in the strike. Steel credibly testified that he received clearance to go 4 These findings are based on the credited testimony of Henry, Labor early and participated in the strike However, as the written leave procedure Relations Supervisor Barrett, and Project Superintendent McCullough was used only for absences of more than 10 working days, it is reasonable to 5 Respondent argues in its brief that Ashley might have returned to work assume that Ashley was on leave on September 10 BECHTEL CORPORATION 509 on leave of absence from General Foreman Hans Dipple on August 30 or 31, 1970; that he did not notify the Union because leave was to be not more than 10 working days; that he was away from the project on September 10, that he expected to return to work on the 11th working day, which would be September 14; and that he heard on Saturday , September 12, that he had been fired . He also credibly testified that he never engaged in any prior work stoppage at the project. As Respondent points out in its brief, there is no evidence that Dipple was an agent of Respondent who could authorize leave for Steel, and Respondent had no way of knowing whether Steel had come back and joined the strike on September 10, 1970. However, there is no evidence in the record to shed doubt on Steel's credible assertion that he did not participate in the September 10 or any other strike against Respondent. Steel never informed Respondent that he did not partici- pate in the strike nor did he ever disassociate himself from the strike. Pipefitter Douglas L. Vereen was injured on the job at the project on August 19, 1970. He spent 10 days, beginning on August 20, in the hospital and then he was released to a doctor's care. In his testimony at the hearing, Vereen averred that he was able to return to work on September 15 so that he called the union hall on September 14, at which time he heard that he was not working for Respondent any longer . He also stated that he hadn't heard prior to that time that there had been a walkout. However, he acknowledged that in a previous written statement he had said that he called the hall on September 10 and was told by the girl on the switchboard that there was no sense in his going to the project because there was no one working as they went off the job and the job was down. Though he admitted making that statement, he averred that the statement was wrong . In view of the inconsistent statements , I am unable to credit Vereen's testimony that he had no knowledge of the strike on September 10, nor am I able to find that his absence from the job on September 10 was due to his illness rather than to his going along with the strike . Vereen also testified that he never engaged in any prior work stoppage. However, the Company's records indicate that on August 15, 1969, the date of the "subsistence rate" strike, Vereen worked only 5-1/2 hours, which was the same as the other journeymen In the absence of any explanation by Vereen , an inference is warranted that he participated in that strike along with the other pipefitters. 2. Dockery, Snelson, and Wilson With regard to the remaining 13 pipefitters who were allegedly discharged in violation of the Act, there is a great deal of conflicting evidence concerning whether they were ready to work on September 10 and whether they had engaged in prior work stoppages. One group of those pipefitters testified in substance that the guards told them that the pipefitters were not working. That could be interpreted as merely a statement that the pipefitters were on strike. That group consisted of W. C. Dockery, Paul R. Snelson, and Harvey T. Wilson. Dockery credibly testified that he came to the guard gate to begin his swing shift about 2:30 p.m. on September 10, 1970, and that he was told by the guard that no plumbers or pipefitters were working Dockery asked what was wrong and the guard said it had something to do with the day shift. Dockery replied that there was no point in discussing something that neither of them knew anything about and he left the project. Though Dockery testified that he never engaged in a work stoppage, his testimony does not establish that he was prevented from going to work on September 10 by the guard. The guard told him that the pipefitters were not working at a time when the pipefitters had walked off the job Dockery appears to have assumed that none of the pipefitters would work as there had been a walkoff. That would not be an unreasonable assumption in light of the prior 10 work stoppages. Snelson testified in a similar vein. He reported to the guard shack at the project at about 11 p.m. for the graveyard shift of September 10. The guard told him that the pipefitters were not working and that they had walked off. In a prior statement that Snelson signed, he stated that when he came to work, a guard told him that the pipefitters had pulled the job and walked off that morning and that he made no further attempt to go to work. Snelson was not prevented from going to work by the guard, he was simply informed that the pipefitters had struck and he left the project. Wilson's testimony was similar. He reported to the swing shift between 2:30 and 3:30 on September 10 and was told by the guard that there had been a walkoff that morning and that there was nobody in there. He asked what the trouble was and the guard said he didn't know. As with the two pipefitters discussed above, Wilson was simply told that there was a strike and he left the project. He also testified that at that time, he saw his foreman who gave him his termination slip and final check. I cannot credit Wilson in this regard, however, as the evidence of many other witnesses clearly establishes that the termination slips were not even made up at that time. 3 Lea, Baca, Vaughan, and Brickey Three more of the alleged discriminatees, Robert E. Lea, Bernard T. Baca, and S. M. Vaughan, did not report for work on September 10, 1970, after hearing about a conversation between George Coroneos, general foreman on the swing shift, and his superior, Fredrick (Zeke) Cashman, Respondent's mechanical superintendent. Co- roneos is a longstanding member of Local 525 and he was referred to the project by that Union. On the morning of September 10, he heard that there had been a walkout on the day shift. At or about 1 p.m., he called Cashman on the telephone, said that he heard there had been a walkout and asked Cashman what he was supposed to do, whether he should go to work or stay at home. Cashman asked if he had checked with the Union and he answered that he had not been able to reach them. Cashman then said that he couldn't tell him (Coroneos) what to do, that he just didn't 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know, and that it was up to him (Coroneos ) to make that decision. Coroneos then asked Cashman to call his home if he found out anything ; that he had four riders; and that it would take him about 1 hour and 15 minutes to get to work.6 Coroneos then told the pipefitters who usually ride with him to work about the conversation he had with Cashman. One of those riders was Robert E. Lea. Lea had also heard about the walkoff about 10 : 30 that morning and he had called the Union but he couldn't reach anyone. He went to Coroneos' house, where Coroneos told him that he had called one of Respondent 's superintendents who wouldn't say one way or another what they were to do. Coroneos also said that he couldn't get in touch with the Union. They decided that they would not go to work until they received word from either Respondent or the Union, and Lea did not report for work that day. Baca was another pipefitter who had heard that morning of the walkout. Baca knew that Lea drove to work with General Foreman Coroneos so he called Lea to find out what was going on. Lea told him that he would check with Coroneos . Later, Baca called Lea again and, according to Baca's testimony, Lea told him that Coroneos had said that they were not to go on the job because , as far as he knew, they didn't have a job any more. However, Baca acknowl- edged that in a statement that he gave to an agent of the Board on June 17, 1971, he had said, "Bob Lea said as far as I know, we aren't going back. He said they walked off the job. The laborers had been doing our work . Bob said Coroneos said they weren't going down because of a labor dispute." Baca made no attempt to explain away that statement or to correct it. In the light of that statement, I am unable to credit Baca's allegation that he was told by Lea that Coroneos had told him they didn't have a job. He was instead told in effect that they were on strike. In that statement to the Board agent, Baca also referred to conversations he had with two of the other alleged discriminatees , Sam Vaughan and Carl Brickey. The statement reads, "I talked to Sam Vaughan and Carl Brickey. We were in a car pool that day. I talked to Carl about 10 :30 a.m. and to Vaughan right after lunch . I asked him what was going on and all they knew was guys had walked off and we weren't going back." Vaughan acknowledged that Baca called him and told him that they had wobbled the job. Wobbled is a term used on the project that means strike . Vaughan testified that he was riding to the project with Brickey and Baca and that when he found out he couldn't get a ride with him, he decided not to go to work because he had a slow driving old truck and it was too late for him to get to work. He did report to work the following day about noon and he was refused entrance by the guard . As noted above, the guards were instructed to keep out the pipefitters on September 11. I am unable to credit Vaughan's explanation for his failure to report for work on September 10. Vaughan may not have wanted to use his old truck for transportation and he might have reported for work somewhat late if he had, but under all the circumstances , I believe the inference is warranted that he did not go to work on September 10 because of the stake . Vaughan did use his truck to get to work on September 11 when he told the guard he came down there to see what the setup was. His actions on the 11th were not inconsistent with the finding that he had engaged in the strike on the 10th. That finding is also consistent with Baca's statement to the Board agent that Vaughan and Brickey told him that they knew the guys had walked off the job and they weren't going back. Brickey testified that he never engaged in a work stoppage, that at 10 or 1 I a.m. on September 10 he received a call from the umon business agent telling him that the Union had two checks and a termination slip for him and that sometime after 12 on that day, he went to the umon hall and picked them up. As set forth above , the evidence is clear that the termination checks and slips were not available at the union hall until September 11. I find that Brickey is mistaken in placing those incidents on Septem- ber 10 rather than September I 1 and he has come forward with no credible explanation for his absence from the job on September 10. An inference that he did not report for work on the 10th because of the strike is warranted. Such an inference is consistent with the statement of Baca discussed above. As to Lea, Baca, Vaughan , and Brickey, I find that they did not work on September 10, 1970, because of the pipefitters strike and not because they were prevented from working by Respondent. 4. Hall, Dawson, and McGuffey Two of the pipefitters who were allegedly discharged in violation of the Act, Lyle Hall and Frank Dawson , testified that the guards prevented their going to work on September 10. However, both of these employees gave prior statements to an agent of the Board that put their credibility in doubt . Hall testified that when he came to the guard shack about 2 :20 p.m. on September 10, he was told by the guard that no fitters would go on the job but that he could pick up his paycheck. Later in his testimony, he averred that the guard told him that they were not allowing him through and that he could not go to work. He acknowledged, however, that in a prior affidavit he said that the guard told him that all the pipefitters had walked out and gone home ; that he replied that he had come to work ; that the guard said that there was no supervision on the job; and that the guard did not tell him either that he could go or that he could not go to work. Dawson testified that he went to the guard shack about 2:40 p.m. on September 10; that the guard asked him where he was going and he replied that he was going to work ; that the guard said that he was not and there was not a man on the job; and that he asked the guard what happened and the guard replied that he didn't know. In a prior affidavit, Dawson stated that he came to the guard shack; that the guard asked him whether he expected to go to work and he replied he did; and that the guard said there had been a strike, and there was not a man on the job. He further stated that he told the guard he might as well go home and the guard replied that they didn't have anything to do with this. In the light of the statements 6 These findings are based on the combined testimony of Coroneos and Cashman which to a large extent was corroboratory BECHTEL CORPORATION 511 given by Hall and Dawson, I do not believe that the General Counsel has established by credible evidence that the guards prevented them from going to work Rather, it appears that the guards told those pipefitters about the strike and both the pipefitters and the guards assumed that the pipefitters would not go to work Robert A McGuffey is alleged as a discriminatee in the complaint He did not testify and the General Counsel has not introduced any evidence with regard to his participa- tion in the September 10 strike except for Respondent's records showing he signed in on that date and signed out a few minutes later In the absence of any explanation, the inference is warranted that he signed out because of the strike. 5 Haralson, Guess, and Johnson In addition to the 15 alleged discriminatees discussed above, there are three pipefitters named in the complaint. They are Hugh Haralson, Norman L Guess, and Virgil L. Johnson All three testified in substance that the guard prevented their going to work on the September 10 swing shift and that they never participated in any work stoppage at the project Haralson testified that when he went to the guard shack between 2 and 2 15 p m on September 10, the guard told him that the pipefitters walked out, that they were all fired, and that he could not go in. He also testified that he went on the project to get his paycheck and he was told by timekeeper Jim Belmos that the day shift had walked off the job and that Respondent had fired the swing and the graveyard shifts. The timekeeper for the pipefitters, James W. Belmos, contradicted Haralson's testimony and specifi- cally denied telling any pipefitter about a termination on that date. As noted above, Respondent's officials credibly testified that they did not instruct the guard service to keep any pipefitter out until September 11. Robert J Fogerty, the owner of the guard service, credibly testified that he did not either receive instructions from Respondent or give instructions to his guards concerning the exclusion of the pipefitters; that the guards had no authority to keep pipefitters out on September 10; and that the normal procedure would have been to allow the pipefitters in at that time The guards who were working the graveyard shift which began at 11 p.m on September 10, Edward E Benton and Donald Jones, credibly testified that they had no orders to keep pipefitters out and that they did not prevent any pipefitters from going to work. Neither Haralson nor any of the other pipefitters were able to name or give an accurate description of the guard who allegedly spoke to them At the time Haralson allegedly spoke to a 7 As noted above, the "concrete hatch cover" work stoppage took place about a week after the October 1969 "crane" strike Respondent's records show that a number of the pipefitters worked 5-1/2 hours on November 5, 1969, and in the absence of any other explanation being offered, t find that that was the date of the strike The records show Haralson worked 5-1/2 hours that day He testified that on that day he told his foreman he was leaving for anotherjob and the foreman asked him to work until after lunch He also testified that he had no knowledge of a work stoppage that day As he left with the strikers, I do not credit his contention that he had no knowledge of the strike and his credibility in general is put in serious question Even if he did have another job the following day I find that he guard and the timekeeper, no decision had been made by Respondent to fire the pipefitters. In view of the specific contradiction by the timekeeper and the lack of likelihood that the guard and the timekeeper would have mentioned a firing at that time, I do not credit Haralson's testimony and I find that the General Counsel has not established by credible evidence that Haralson was prevented from working by the guard.? Guess testified that when he reported to the guard shack at 2:45 p.m. on September 10, the guard stopped him and told him that he couldn't allow him to pass through; that there were no pipefitters working; and that he had orders not to let the pipefitters through the gate.8 Johnson testified that when he reported for work about 2:15 p m. that day, the guard told him that they had orders that no pipefitters were working that day, but that he could pick up his check at the pay office. Thereafter, he called the Union and was told that there was a labor dispute. To some extent, the testimony of these last two alleged discriminatees was corroborated by testimony of four union members who had been working as foremen. Clifford Theisen, foreman on the graveyard shift, testified that when he reported for work at 11 p.m. on September 10, the guard told him that there was no work for fitters and that when he wanted to pick up his paycheck, Superintendent Glenn Goss told him that he could not even come on to the project to pick up his personal things. Goss testified and specifically denied that he ever kept Theisen or any pipefitter off the project. Goss' testimony is consistent with the general pattern of behavior of the other supervisors and I credit it. Foreman William Coleman testified that when he came to the project for the graveyard shift on September 10, the guard told him that the day shift had walked off and that his orders were to keep the swing and graveyard shifts out. Foreman Charles R. Johnston testified that when he went to the guard shack at 10:30 p.m. on September 10, the guard told him that all the pipefitters were fired and that he couldn't go in. General Foreman Harald Darrah also testified that the guard told him at about 10:45 p.m. that the pipefitters were terminat- ed and that if he wanted his personal belongings, the guard would have to escort him in to get them. After considering the testimony of Respondent's high level supervisors, the owner of the guard service, the guards and particularly the diverse versions of conversations with guards given by the alleged discriminatees and the union member foremen, I am unable to give credence to the assertions by Guess, Johnson, and the four foremen that they were excluded from the job by the guards. The testimony taken as a whole convinces me that Respondent did not instruct the guards to keep the pipefitters out on September 10; that there was a good deal of confusion joined in the walkout of November 5, 1969 8 Guess also testified that he never engaged in a work stoppage against Respondent Respondent's records show that Guess worked only 5 hours on August 15, 1969, as did many other pipefitters That was the date of the "subsistence rate" strike Guess acknowledged working at the project that day but he testified that he did not recall whether he worked a full shift, that he did not recall whether there was a work stoppage, and that there were many Fridays he didn't work a full day Guess' explanation of his absence from the job for part of the day on August 15, 1969, is not convincing and the inference is warranted that he did participate in the August 15, 1969, strike 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stemming from the precipitous mass walkout, that there were conversations between employees and guards in which the strike was mentioned, and that the implicit or explicit assumption in all those conversations was that no pipefitters would work because an unresolved pipefitters strike was still outstanding. It is difficult to believe that, after 10 strikes in which no pipefitters were willing to work, the alleged discriminatees were willing to work through the strike on this occasion. There is no showing of any split of thinking among the pipefitters or any circumstances which would change the previous unanimity of the pipefitters. The testimony of Guess, Johnson, and the four foremen must be evaluated in the light of the testimony of the many other witnesses whose testimony is set forth above. In short, I do not believe that the guards prevented the pipefitters from reporting for work. 6. Summary As to all of the alleged discriminatees other than the ones who were on leave on September 10, I find that the General Counsel has not established that they were ready to report to work and were prevented from doing so by the actions of Respondent. That also applies to Vereen, who was on sick leave prior to the strike. As to those employees, under all the facts set forth above, an inference is warranted that they participated in the strike when they failed to work on September 10, 1972.9 Jones, who was on leave on September 10, acknowledged that he had engaged in a prior strike. As to Ashley, who was also on leave on September 10, the General Counsel has failed to prove that he did not participate in a prior strike. As to Lloyd, who also was on leave, I have found that he did engage in a prior strike. Thus, except for Steel, who did not participate in the September 10 strike because he was on leave of absence authorized by a foreman and who did not participate in any prior strike, the factual underpinnings for the General Counsel's theory have not been estab- lished Though one may suspect that Steel might have been reluctant to work while his fellow pipefitters were on strike, if he had not been on leave, such a suspicion would be based only on guesswork The fact is that he did not engage in any strike. A legal analysis of the General Counsel's theory as to Steel must, therefore, be made. B. Conclusions The strike of September 10, 1970, was in violation of the no-strike clause of the contract and, therefore, was an unprotected activity. It follows that the discharge of those employees who participated in the strike did not constitute a violation of Section 8(a)(1) or (3) of the Act. Atkinson v. Sinclair Refining Co., 370 U.S 238, 246 (1961). However, Steel did not participate in that strike because he was on leave of absence at the time. Respondent urges a finding that Steel ratified the strike conduct of other employees by his failure to dissociate himself from the strike when he 9 It is, therefore, unnecessary to evaluate the General Counsel's assertion that none of these employees participated in prior strikes 10 As already noted, in only one of these strikes did the Union actually intervene in an attempt to have the employees return to work and, even in that situation, many of the pipefitters refused to do so ii The General Counsel in his brief cites many cases dealing with the returned from leave of absence and that , therefore, he could properly be treated the same as the strikers. In Marathon Electric Mfg. Corp, 106 NLRB 1171, enfd. 223 F.2d 338 (C.A.D.C., 1955), cert . den. 350 U.S. 981 (1956), such a ratification was found . In that case, the Board held that certain employees who had been on leave of absence during a strike that violated a contract shared in the strike action and, therefore, were amenable to discharge for breach of contract where: the employees were members of a strong militant union ; the union was responsible for the strike and received the complete support of the employees who were in the plant at the time it took place ; there was no showing of dissent by the employees on leaves of absence, the employer sent letters to all the discharged employees saying the participants in the strike were discharged; and none of the employees on leave attempted to disassociate himself from the union 's walkout or advised the company that he was not one of those sharing in the group strike taken by the union . The General Counsel argues that the instant case is distinguishable on its facts from Marathon because the Union did not call the strike and Respondent did not write to the discharged employees that the participants in the strike were terminated. However, I do not believe that these distinctions are meaningful . Though the Union did not officially call the strike, there is no evidence that the Union took any steps to disown it or to get the employees back to work . There is no doubt that the pipefitters working on the project constitut- ed a strong and militant group who, judging by their past strike conduct, displayed an unswerving unanimity of action . Whether or not they worked through the formal union structure, this group had engaged in 10 prior work stoppages where every pipefitter on the job had ceased work to From past experience , Respondent had every reason to believe that when the pipefitters stopped work, none of them would return until the dispute was resolved. Respondent did not, as in the Marathon case, send notices to the discharged employees that all the participants in the strike were discharged . Instead, it sent out termination slips showing "voluntary quit." However , it is inconceivable that Steel did not find out when he returned to the area a few days after the September 10 strike that the discharge of the pipefitters had been precipitated by the strike . Respondent did not have knowledge that Steel was on leave of absence on September 10, as he had been granted leave for not more than 10 days and he could have returned at any time before the 10-day limit. Steel could have informed Respondent that he had been on leave and disassociated himself from the strike, but he refrained from doing so. Under the rationale adopted by the Board in Marathon, the finding is warranted that, by keeping silent, Steel went along with the strike and in effect ratified the strike conduct.ii I, therefore, find that the General Counsel has failed to establish by a preponderance of the credible evidence that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Steel. proposition that proof of individual wrongdoing is a prerequisite to a finding that conduct that would otherwise have been protected activity loses its protection However, those cases which deal with protected strikers and protected unfair labor practice strikers are inapposite in the instant case. The September 10 strike was not a protected activity BECHTEL CORPORATION 513 I have found above that the General Counsel has failed to substantiate his theory of the case relating to the discharge of the alleged discriminatees other than Steel. As to those employees, there is a failure of proof. However, I believe that the General Counsel would have failed to establish his case even if he had proved that all 18 alleged discriminatees were prevented from working by Respon- dent and none of the 18 had ever engaged in a stnke against the Respondent. As the United States Supreme Court held in N L R B. v. Burnup and Simms, Inc., 379 U.S. 21 (1964): ... Section 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. In the instant case, the strike was not such a protected activity. The General Counsel argues in his brief that Section 8(a)(1) protected the 18 employees in their right to be represented by Local 525 and in substance that their discharge was causally connected to their representation by that Union. However, under all the circumstances of this case, I do not believe that the discharges were keyed to any protected activity. Respondent demonstrated no animus against Local 525 except to the extent that Local 525 seemed unwilling or unable to properly administer the terms of the contract that Respondent had with the United Association The United Association and not Local 525 was the bargaining agent for pipefitters employed by Respondent throughout the nation. The United Associa- tion assigned the administration of its contract with Respondent to Local 525 to cover the work at the project, and then when it became manifest that Local 525 could not properly administer it, assigned that administration to another one of its locals. The 18 employees named in the complaint were associated with a workforce of some 350 pipefitters on the project who were unwilling to live up to the no-strike clause in the contract. On 10 prior occasions, the entire workforce of pipefitters at the project had engaged in work stoppages. I believe that the identification 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in of the 18 alleged discriminatees with such a workforce was the cause of their discharge and not their identification with Local 525. The discharges were directed at the unprotected conduct of the pipefitters as a group. Whether the strikes were attributable to the Union or whether the Union was simply unable to control them, the discharges were not keyed to any protected union or concerted activities but to the unprotected strikes. In N.L.R.B v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), the United States Supreme Court held that an employer violates Section 8(a)(3) of the Act even in the absence of proof of antiunion motivation where: "it can reasonably be concluded that the employer's discriminato- ry conduct was `inherently destructive' of important employee rights...." For reasons set forth above, I believe that the discharges were directed toward and interfered with the unprotected strike activity of the pipefitters as a group, even if a relative handful of those employees did not themselves engage in that strike activity, and that no employee rights that are protected under the Act were adversely affected. I find that the credible evidence does not establish that Respondent violated the Act as alleged in the complaint, and I shall, therefore, recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 525 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i2 ORDER The complaint is dismissed in its entirety. Section 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