Bovee and Crail Construction Co.

BOVEE AND CRAIL CONSTRUCTION COMPANY Bovee and Crail Construction Company and Franklin Johnson; William Moraga, Robert Boston. Cases 31-CA-4770-1, 31-CA-4770-2, and 31-CA- 4770-3 June 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 20, 1975, Administrative Law Judge William J Pannier III issued the attached Decision in this proceeding Thereafter, Respondent filed ex- ceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act by dis- charging employees Franklin Johnson and William Moraga and Supervisor Robert Boston because they engaged in activities protected by Section 7 of the Act, specifically the sending of a letter as members of the Union's executive board to J R Collins, Respondent's general foreman and a member of the Union The three alleged discriminatees were mem- bers of the Union's executive board The text of the letter, mailed on August 13, 1974,2 to Collins, and on which appeared the signatures of all executive board members reads The Executive Board of Local Union No 484 requests your presence at a meeting to be held at this Local Union office, 1955, N Ventura Ave- nue, Ventura, Calif The meeting will convene at 7 30 p in August 26, 1974 The purpose of this meeting is to discuss ways and means of having a more harmonious job, both for the mutual benefit of the local union members and the Con- tractors job Your failure to appear at this meeting, will give just cause to be disciplined by the Executive i In the absence of exceptions thereto, we adopt, pro forma the Adminis- trative Law Judge s rationale for denying Respondent's motion for deferral to arbitration Members Fanning and Jenkins would not in any event defer to arbitration in this proceeding for the reasons set forth in their dissents in Collyer Insulated Were, A Gulf and Western Systems Co, 192 NLRB 837 (1971), and subsequent cases 2 All dates herein are 1974 509 Board, under Article XII, Paragraph 2, of the Local Union 484 By-Laws 3 Johnson, Moraga, and Boston were discharged on August 15 The Administrative Law Judge found that they were terminated because they had engaged in the protected activity of co-signing the letter from the Union's executive board to Collins We agree with the finding that they were terminated for send- ing the letter, but we find, however, that the signing and sending of the letter to Collins were activities not protected by Section 7 of the Act We, therefore, find the discharges not violative of Section 8(a)(1) It is well settled that employees who engage in in- traunion activity are protected from reprisal or dis- crimination by their employer However, where such activity transcends purely internal union affairs and interferes with a supervisor-member's conduct in the course of representing the interests of his employer, the activity may be violative of Section 8(b)(1)(B) of the Act and therefore lose its protection 4 In Florida Power & Light Co,1 the Supreme Court held that whether or not a union violates Section 8(b)(1)(B) by disciplining 6 a supervisor-member de- pends on whether that discipline may adversely af- fect the supervisor's performance of his 8(b)(1)(B) duties Thus, the Court said The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of §8(b)(1)(B) only when that discipline may ad- versely affect the supervisor's conduct in per- forming the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer [417 U S at 804-805 ] A Board majority has interpreted the Supreme Court's holding in Florida Power & Light to mean, s The test of art XII, par 2 of the bylaws was reproduced on the lower lefthand corner of the letter sent to Collins and provides that Members may be disciplined by the Executive Board for failure to appear before the Executive Board once so ordered by the business manager of the Local Union or his representative The Executive Board may request such officers and/or members to meet with them at any time they deem necessary 4Industrial First Inc 197 NLRB 714 (1972), where the Board held that it was not a violation of the Act for an employer to discharge a union official because he provoked a supervisor-member into resigning as a supervisor There the employee threatened to bring intraunion charges against the su- pervisor The discharged employee was president of the local union and acting business agent immediately preceding his discharge The absence of any finding in that case that the union violated Sec 8(b)(1)(B) of the Act suggests only that no such charge had been filed and the issue was not before the Board 5 Florida Power & Light Co v International Brotherhood of Electrical Workers, Local 641, et al, 417 U S 790 (1974) 6 The Board has held that a threat to discipline a supervisor-member is coercive and may violate Sec 8(b)(1)(B) See Industrial First, Inc, supra See also San Francisco-Oakland Mailers Union No 18, International Typographt cal Union (Northwest Publications, Inc), 172 NLRB 2173 (1968) 224 NLRB No 71 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inter alga, that in situations where the disciplined su- pervisor has engaged only in the performance of su- pervisory activities (not lirnited to grievance adjust- ment or collective bargaining), a union's disciplining of that supervisor violates Section 8(b)(1)(B) of the Act because "it is reasonably likely that an adverse effect will carry over to the supervisor's performance of his 8(b)(1)(B) duties "7 In the Oakland Mailers case, supra, the union cited several supervisor-members to appear before the ex- ecutive committee to answer certain allegations of violation by individuals covered by the collective- bargaining agreement The Board concluded that the union violated Section 8(b)(1)(B), finding that the union's actions, including citations, fines, and threats of citation, were designed to change the employer's representatives from persons representing the view- point of management to persons responsive or sub- servient to the union's will The Supreme Court as- sumed, without deciding, that the Board's decision in Oakland Mailers fell within the outer limits of the test enunciated by the Court Turning to the record in the instant case, the letter sent by the union executive board to Collins stated that the purpose of the meeting to which he was sum- moned was "to discuss ways and means of having a more harmonious job, both for the mutual benefit of the local union members and the Contractors fob " As stated earlier, Collins was threatened with disci- pline in the event that he failed to appear at the meeting Boston, who is chairman of the union exec- utive board testified that, although he did not consid- er that they were summoning an agent for Respon- dent to the meeting,"we called the general foreman before the Executive Board, and that is as high as you can go " Boston also stated that Collins was not called to the meeting as a representative of Re- spondent, "but he would have a more inside track with Bovee and Crail " None of the members of the executive board who testified could recall whether any other supervisors had received a letter like the one sent to Collins Following the receipt of the let- ter, Collins became upset, and according to Collins' uncontroverted testimony Boston admitted that he thought the letter would have that effect on Collins On August 15, 1974, 1 day after the receipt of the letter, Respondent discharged Boston, Johnson, and Moraga The Administrative Law Judge found, and we agree, that the discharges were effectuated be- cause the three employees had signed the aforemen- tioned letter from the Union's executive board to Collins The Administrative Law Judge found, how- ever, that the activity was protected because the testi- mony concerning the events which transpired at the August 26 executive board meeting do not disclose any effort by Boston, Moraga, or Johnson to dictate the manner in which Collins should perform his su- pervisory duties Although the record evidence con- cerning the August 26 meeting is somewhat contra- dictory, we need not resolve such conflicts, for we find that the discussions at the August 26 meeting have absolutely no relevance to the issue of whether the sending of the letter to Collins on August 13 was protected activity The meeting took place 11 days after Boston, Moraga, and Johnson were terminated The tendency of the threat of discipline to affect Col- lins' activities as an 8(b)(1)(B) representative can hardly be determined from later conduct towards Collins by persons previously terminated for making the threat It is the letter threatening Collins with discipline for failing to attend the meeting which is our concern here We conclude that the summoning of Collins to the meeting, and the explicit threat of discipline,' was clearly calculated to interfere with Respondent's con- trol over its own representative The record indicates that many grievances had been filed with the Union by employees who were concerned over the distribu- tion of overtime, and it is quite clear that Collins was directed to attend the meeting because he was be- lieved to be high enough in management to change Respondent's position with respect to the grievances, particularly those involving the assignment of over- time It is noteworthy that the record reveals no union complaints, charges, or grievances against Col- lins, and their absence indicates that no intraunion problems were involved We find, rather, that Collins was threatened with discipline and summoned to the meeting because of the underlying differences be- tween the Union and Respondent, and that the ac- tion of the union executive board was designed to coerce Respondent's representative, Collins, into rep- resenting the viewpoint of the Union with respect to bargainable subjects As we said in Oakland Mailers, supra, in enacting Section 8(b)(1)(B), Congress sought to prevent the very evil involved herein- union interference with an employer's control over its own representative The fact that the Union may have sought substitution of attitudes rather than per- sons, and may have exerted its pressures on Respon- dent by indirect rather than direct means, cannot al- ' We cannot find as does the Administrative Law Judge , that because the meeting did not infringe upon Respondent's relationship with the Union 7 See Chicago Typographical Union No 16 (Hammond Publishers Inc) 216 then neither does the threat to discipline Collins for failing to attend that NLRB 903 ( 1975), and New York Typographical Union No 6 International meeting At the time Collins was threatened, he was not told of the precise Typographical Union AFL-CIO (Daily Racing Form, a subsidiary of Triangle purpose of the meeting, and we do not treat the various parts of the letter Publications Inc) 216 NLRB 896 (1975) separately but instead consider it as a whole BOVEE AND CRAIL CONSTRUCTION COMPANY 511 ter the ultimate fact that pressure was exerted here for the purpose of interfering with Respondent's con- trol over its representative The thrust of our dissenting colleague's analysis appears to be that the Union must be considered only as an entity, and that its agents are not individu- ally culpable as employees so long as they are assist- ing the Union That is simply not the law Employ- ees, acting on behalf of the Union, may under certain circumstances lose the protection of the Act when they engage in slowdown activities, disparage their employer's product, or participate in a strike or in picketing in violation of a no-strike clause I Our dis- senting colleague would, without legal justification, insulate the perpetrators of the unlawful act from the act itself We cannot accept that reasoning As the poet has said, "How can we know the dancer from the dance9" We conclude that the activities of Boston, John- son, and Moraga, in connection with the August 13 letter, were not protected by Section 7 of the Act Accordingly, Respondent did not violate the Act when it discharged them for engaging in the afore- mentioned activity Therefore, we shall dismiss the complaint in its entirety ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety MEMBER FANNING, dissenting The Employer is the Respondent in this proceed- ing It is here because it discharged three union mem- bers for assisting their Union by serving on its execu- tive board and signing official correspondence on its behalf All pretense that the three were discharged because of their conduct as employees has now been dropped However, their right to assist a labor orga- nization free of employer retaliation is held forfeit because their Umon is found to have violated Sec- tion 8(b)(1)(B) I think that is wrong and contrary to the design of the Act The facts are simple, the Union's executive board sent a letter to a union member-J R Collins, the Respondent's general foreman-requesting him to appear before the board The letter, a form regularly used, noted that members could be disciplined if they did not appear Relying on little more, the majority 9 In Stone & Webster Engineering Corporation, 215 NLRB 517 (1974), the Board held that the employer properly discharged an employee who was the union vice president and job steward because he engaged in picketing which was in violation of a no-strike clause and which had an object of changing the employer's work assignment finds that the Union violated Section 8(b)(1)(B) It then reasons that any assistance to the Union in that connection is not protected "where such activity transcends purely internal union affairs [it may vio- late the Act] and therefore lose its protection" 10 I take that to mean that unlawful activity is unpro- tected That proposition has the ring of common- sense, but it has an obvious, somewhat paradoxical, corollary that which is protected is not unlawful However, we may maintain both propositions with- out contending with the paradox if proper attention is paid to the fact that the executive board members have a dual status, that as union members as well as that as employees, and that the Act is constructed with care to insulate an employee's job from his orga- nizational rights With that in mind, our paradox is easily resolved, for the assistance an employee ren- ders to a labor organization as an employee is not the same thing as his "unlawful" official action 11 The latter is attributable only to the union, not to the individual as an employee It is only by construing the employees' assistance to the Umon as though it were limited to the unlaw- ful activity, unmindful of the complexities of the Act and its central design, that this result can be justi- fied 12 Give it any other interpretation and the Respondent's action is simply the archetypal unfair labor practice the cause for the discharges arose out- side the employment relation in the course of official union duty 13 The executive board members did not, and could not, violate Section 8(b)(1)(B) as employ- ees because it is a violation which can be committed only by a labor organization It is only because they did not act as employees or natural persons, but as union representatives, that there is any basis for find- ing that the Union engaged in unlawful activity Had they acted as employees rather than in their union capacity, it could not even be argued that they, or the Union, had violated Section 8(b)(1)(B) 10 A single case decided without citation or legal explication is urged for the proposition that an employer may retaliate against an employee for his action as a union official and not as a natural person Industrial First, Inc 197 NLRB 714 (1972) Whatever the merits of the decision in that case, the reported facts do not establish that the employee was a union official at the time or that he was acting in an official capacity, the absence of any finding that the union had violated the Act suggests that he was not 11 The majority analyzes the legal situation as though no labor organiza- tion were involved and we were merely considering "concerted activity rather than assistance to a labor organization The former is protected or unprotected depending upon whether its objective is protected, assistance to a labor organization is itself a protected activity 12 Cf N L R B v Drivers Chauffeurs and Helpers Local Union No 639, International Brotherhood of Teamsters Chauffeurs Warehousemen and Help ers of America [Curtis Brothers], 362 U S 274 292 (1960) 13 Compare employee participation in a strike striking employees act within the employment relation by withholding their services as employees and that is true whether or not they are also union officials Even then we do not automatically conclude that any misconduct renders their participa- tion in the strike unprotected It may be so interwoven with protected activi- ty that it must be balanced against any misconduct by the employer 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Even assuming there was justification for some reasonable action by the Respondent, the discharges cannot be condoned because their effect is not rea- sonably limited to the Union's treatment of Collins Discharge of union officials for their action in that capacity, and outside the employment relation, is in- herently destructive of the right to assist a labor orga- nization We are obligated, then, to "exercise [our] duty to strike the proper balance between the assert- ed business justifications and the invasion of employ- ee rights in light of the Act and its policy," 14 but the burden is on the Respondent Even if the effect on employee rights had been slight, so long as they could have been affected to some extent, the Respon- dent would still have the burden of establishing that it was motivated by legitimate objectives 15 An employer which is the target of unlawful union action may well wish to respond, and the protection of its rights under the Act may well be legitimate and substantial business justification as contemplated by Great Dane, supra It is not debatable that when the basic rights of employees under the Act come into conflict with the basic rights of employers, the em- ployer is entitled to respond to preserve its rights But not with unfettered latitude, the employer's response must be no more than sufficient to its legitimate ob- jective 16 The Respondent's discharge of union executive board members fails that test An employer's actions which infringe upon basic employee rights, even if a legitimate objective has been demonstrated, must nonetheless be reasonably calculated to secure that objective, and no more, before the rights of the em- ployees must give way Not only was a more effective alternative open to the Respondent, but the path it did pursue was one which could vindicate its rights only by going beyond any legitimate objective and restraining employees in the exercise of their right to assist a labor organization Its response reached only its employees, not the Union they served If the Union violated the Act, the Respondent had only to turn to the Act for protection Had it done so, there would be no need now to disentangle the Respondent's rights from the rights of its employees Under the law, the Respondent could have reached the Union, the party allegedly guilty of restraining and coercing the Respondent, and restrained it from like acts in the future Only if the Union had not acted unlawfully could the Respondent have gained by taking direct action against its employees The Respondent, lacking any need for direct ac- 14 N L R B v Great Dane Trailers Inc 388 U S 26 33-34 (1967) 15 Id at 34 16 H & F Binch Co Plant of the Native Laces and Textile Division of Indian Head Inc v NLRB 456 F 2d 357 (C A 2 1972) tion against its employees,17 action not reasonably calculated to secure a legitimate objective, cannot be said to have had a legitimate objective Against that weighs not only the rights of its employees, but also the legal consequences of vindication of the Respon- dent which cannot readily be confined to the facts of this case If an employee is accountable to his employer for action as a union official, which can be unlawful and unprotected only if charged to a labor organization, there is no reason why an employer cannot dis- charge a union member who votes in favor of any unlawful action by his union Certainly an employer would be acting lawfully should it discharge a union member who, as a union negotiator, unlawfully per- sisted in urging a position outside the scope of man- datory bargaining-even with another employer In the future no action by a union member could safely be assumed to be free from his employer's judgment It is particularly troublesome that this far-reaching decision should be based on a claim of unlawful union action which rests on only marginal legal and factual footings Section 8(b)(1)(B) prohibits a union from restraining or coercing an employer in the se- lection of his representative for the purpose of collec- tive bargaining or adjusting grievances But there is no evidence that the Union summoned Collins in connection with his performance of either duty, or even that he had such duties The testimony of the Respondent's project manag- er, Denny, as well as that of Collins, establishes that all decision-making authority was concentrated in Denny Denny testified that he intentionally re- tained, to the exclusion of Collins, the authority to deal with both the Union and grievances-the sub- jects of Section 8(b)(1)(B) The Respondent does not except to the absence of any finding that Collins was its representative for those purposes, does not argue that he was, and urges no testimony which could lead to that conclusion It merely indulges itself in a pre- sumption that Collins was its representative, and the majority humors the Respondent in that presump- tion The majority finds that Collins was directed to at- tend the meeting because he was thought capable of changing the Respondent's position concerning over- 17 1 do not imply that an employer or its employees is restricted to the Act s procedures in protecting rights That, however, is a realistic alternative which must be taken into consideration when weighing competing interests under the Act So too is the presence or absence of a need for immediate action which may turn on the likelihood and extent of irremediable injury should action be delayed The latter of course is the standard for securing an injunction pending disposition of a proceeding Thus should it be con- tended that the Respondent might have suffered irreparable damage while waiting the results of a Board proceeding the short answer is that if the contention is true an adequate, and once again more effective remedy is still available BOVEE AND CRAIL CONSTRUCTION COMPANY 513 time, a bargamable matter Although Collins had no authority at all in that area, the Union is found to have coerced the Respondent's representative-Col- lins-with respect to bargainable matters Relying principally on Oakland Mailers," as interpreted in later cases, the majority concludes that Collins' forced appearance in connection with a bargainable matter might affect the performance of his duties for the Respondent and, therefore, violated Section 8(b)(l)(B) That conclusion is rationalized in light of Collins' testimony that when he appeared before the execu- tive board no grievances were discussed and that there was no attempt to sway him, by rejecting con- sideration of events occurring after the Union's letter was sent to Collins 19 The majority reasons that the Union sought to coerce Collins as the Respondent's representative, and hence the Respondent But Col- lins was not the Respondent's representative, and, unlike some sections of the Act , an attempt does not violate Section 8(b)(1)(B) Perhaps the Union would have coerced a representative of the Respondent if it could have, but it could not Nor is that a matter of looking at reasonable tendencies, it was a factual im- possibility Like a wishful beggar, the Union is still walking The most that can be said for the Respondent's defense is that Collins, perhaps a supervisor,20 but not its representative for collective bargaining or ad- justing grievances, was perfunctorily notified that he could be disciplined should he ignore his Union's summons No connection has been established be- tween any action by Collins, or even any authority he exercises, on behalf of the Respondent and his ap- pearance before the Union All the record shows is that union members had complained about the allo- cation of overtime, which Collins has no control over, and that there were no charges against Collins 18 San Francisco Oakland Mailers' Union No 18 International Typographi cal Union (Northwest Publications Inc) 172 NLRB 2173 (1968) In addition to my disagreement over the connection that Sec 8(b)(I)(B) requires be- tween union discipline and the duties reached by that section, I do not read Oakland Mailers as holding that requiring an authorized representative to appear before a union on pain of discipline establishes `restraint and coer- cion" of the employer without more In that case, fines were imposed arising directly from the representative's performance of protected duties and the failure to appear served only as the occasion for their imposition and in turn , were only part of a calculated campaign We did not hold that merely requiring the representatives to appear, even in connection with protected duties, would have violated the Act i9 Whatever the merits of that approach it is difficult to reconcile it with the majority s failure to harmonize their conclusion with Denny s views Denny, a long-time union member and the Respondent s top representative on the job, did not believe that Respondent was involved and thought that it was a matter between Collins and the Union 20 The Respondent admits the complaint allegation that Collins is a super- visor , but neither Collins nor Denny, the project manager, provides much support for that conclusion Collins does not handle grievances hire, fire lay off, or allocate overtime personally But Section 8(b)(1)(B) does not broadly prohibit a union from requiring the appearance of a supervisor with an exception for matters solely relat- ing to the union That is not the law, not under Flori- da Power,21 even as interpreted by a majority in Ham- mond and Triangle,22 despite reliance on those cases here There is no burden on the General Counsel to prove the Union's purpose and demonstrate that its reach was limited to its internal affairs The burden is on the Respondent to prove its affirmative defense, and that it has not It is the Respondent, not the Union or its peremp- torily discharged executive board members, which overstepped even the maximum limits of the Act Even were I persuaded that the Union, not the Respondent's employees, had violated the Act, I would still conclude that the Respondent illegally discharged union members for assisting a labor orga- nization It could not have been the intention of Con- gress that an employee might assist a labor organiza- tion only with the constant threat that some official action in his union capacity would make his job for- feit The national labor policy is to encourage collec- tive bargaining, and the right of employees to assist a labor organization is the single most important em- bodiment of that policy I think that means that an employee is not accountable to his employer for his actions as a union official which are otherwise law- ful "The policy of the Act is to insulate employees' Jobs from their organizational rights " 23 21 Florida Power & Light Co v I B E W, 417 U S 790 (1974) held that union discipline for performing struck work did not violate Sec 8(b)(1)(B) The Court interpreted that section narrowly in light of Congress restricted intention of protecting an employer in the selection of its representative for the particular purposes of collective bargaining and adjusting grievances giving it an almost literal construction Criticizing the expansionist reading of Sec 8(b)(1)(B) the Court held that at its outermost limit the section could be violated only if union discipline stemmed from an employer representatives performance of his function as a bargainer or as a griev- ance adjuster The minimum test-not a hunting license-is whether a unions discipline may affect the employer s representative in the perfor- mance of his protected functions It does not follow that the possibility of an effect or even an effect is enough to support a violation All discipline is coercive In most instances it is unlikely that its effect will be confined to its cause it demonstrates the power of he who imposes it But even coercion which can be felt in areas the Act protects is not necessarily unlawful N L R B v Great Dane Trailers Inc supra N L R B v Allis Chalmers Mfg Co 388 U S 175 (1967) Undoubtedly there was some effect on the repre- sentatives in Florida Power nonetheless it was lawful 22 Chicago Typographical Union No 16 (Hammond Publishers Inc) 216 NLRB 903 (1975) New York Typographical Union No 6 International Typo graphical Union, AFL-CIO (Daily Racing Form a subsidiary of Triangle Pub lications, Inc), 216 NLRB 896 (1975) They are relied on for the proposition that discipline of a supervisor arising from the performance of his superviso- ry duties violates Sec 8(b)(1)(B) `because it is reasonably likely that an adverse effect may carry over to the supervisor's performance of his 8(b)(1)(B) duties " Triangle is of particular interest because of its disregard of a union's intent, relying instead on the putative future effect of discipline on the performance of protected duties But in both cases there were pro tected duties where there are none the putative future effect is nil Also see my2 dissenting opinions in these cases s The Radio Officers Union of the Commercial Telegraphers Union, AFL [Bull Steamship Co ] v N L R B 347 U S 17, 40 (1954) 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Philosophy, justice, and the law go hand in hand The majority's decision is contrary to the Act's phi- losophy, it is unjust, it is not the law, and I dissent DECISION STATEMENT OF THE CASE WILLIAM J PANNIER III, Administrative Law Judge This matter was heard by me at Los Angeles, California, on May 29 and 30, 1975 On March 24, 1975, the Regional Director for Region 31 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint and notice of hearing, alleging violations of Sec- tion 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, on the basis of individual unfair labor practice charges filed by each of the charging parties on September 26, 19741 All parties have been afforded full opportunity to ap- pear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs Based upon the entire record, the briefs filed on behalf of the General Counsel and on behalf of the Respondent, and upon my observation of the demeanor of the witnesses, I make the following findings of fact and conclusions of law I JURISDICTION At all times material herein, Respondent has been a cor- poration duly organized and existing by virtue of the laws of the State of California, with an office and principal place of business located in Paramount, California, where it is engaged in the building and construction industry In the course and conduct of these business operations, Re- spondent annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California and, during the preceding 12 months, performed services valued in excess of $50,000 for the United States Government Therefore, I find, as admitted in the answer, that Re- spondent has been at all times material herein an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 484, AFL-CIO, herein called the Union, has been at all times material herein a labor organi- zation within the meaning of Section 2(5) of the Act III MOTION FOR DEFERRAL TO ARBITRATION At the hearing and in its brief, Respondent moved for dismissal of the complaint on the grounds that it is a party 1 Unless otherwise stated, all dates occurred in 1974 to a collective-bargaining agreement with the Union which provides for binding arbitration and that as it is Board policy to defer to procedures established by the parties for resolving disputes under the doctrine of Collyer Insulated Wire, A Gulf and Western Systems Co 192 NLRB 837 (1971), the complaint should be dismissed Such a motion must be considered prior to considering any other facets of this case Bio-Science Laboratories, 209 NLRB 796, fn 1 (1974) At all times material herein, Respondent and the Union's International, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, (AFL-CIO), have been parties to a collective-bargaining agreement covering "all journeymen and apprentices engaged in the installation of all plumbing and/or pipe fitting systems and component parts thereof " So far as the record discloses, this is the only agreement covering southern California opera- tions to which Respondent is a party with either the Union or its International Article XXI to the agreement, entitled Grievance Proce- dure and Cancellation, provides, inter alia "All disputes and controversies as to the meaning or interpretation of any provision of this agreement, and all matters relating to violations of this agreement, shall be treated as a grievance " The article then continues by specifying the steps to be followed in processing such grievances to arbitration meeting between the local union and employer representa- tives, followed by meeting between International and em- ployer representatives, followed by arbitration before a panel composed of three representatives of each party, and culminating, if the matter is not by then resolved, with hearing before a permanent impartial arbitrator, who is appointed by the parties and serves for the duration of the agreement The agreement provides specifically that "The decision of the impartial arbitrator shall be final and bind- ing on all parties " The instant case, as set forth in more detail below, in- volves the issues of whether two employees and one fore- man were discharged for unlawful considerations and of whether Respondent told employees that those termina- tions were occasioned by the union and/or protected con- certed activity of the three discharged individuals Respon- dent concedes that there is no language in the agreement restricting or covering the discharge of personnel and the contract provides specifically that Respondent is "the sole judge of the number of men required," retains "the right to reject any applicant referred by the Union," and has sole responsibility for determining the number of foremen and for selecting the individuals who will serve as foremen Consequently, it is clear, and I find, that the selection of employees and foremen for termination is a matter not re- stricted by the collective-bargaining agreement and is one over which Respondent exercises unfettered discretion It is, therefore, not a matter falling within the phrase, "dis- putes and controversies as to the meaning or interpretation of any provision of this agreement" nor is it one "relating to violations of this agreement " Yet, it is evident that the Union did commence handling the matter of the terminations in a manner consistent with the procedures set forth in the collective-bargaining agree- BOVEE AND CRAIL CONSTRUCTION COMPANY 515 ment Thus, while no written grievances were filed, the Union was notified of the terminations and both Business Agent Frank Smith and Business Manager Henry Grimm spoke with Respondent's officials, consistent with the pro- cedure for handling grievances in the first step Moreover, not satisfied with Respondent's unwillingness to reinstate the three men, Grimm contacted International Representa- tive Lou Stein, who, in accordance with the second step of the contract's grievance procedure, appears to have con- tacted Respondent concerning the matter However, the dispute progressed no further due to four factors Stein advised Grimm that Respondent had said that the termina- tions were part of a normal layoff, at that point, Grimm was personally involved in negotiations with an association and a strike was in progress as a result of those negotia- tions, so far as Grimm was aware the Union had never processed a grievance to arbitration under the procedure set forth in its agreement with Respondent, and, it would have been impractical to have pursued the matter further as progress to the next step of the grievance procedure would have required the three terminated individuals to have incurred the expense of journeying from California to Washington, D C Respondent correctly argues that in Collyer Insulated Wire, supra, the Board regularized the previously ad hoc procedure of deferring further proceedings pending resolu- tion of disputes by arbitration Id, at 841-842 As the Col- lyer doctrine evolved, the Board has made plain that it can apply to situations involving disputes over the discharges of employees, Appalachian Power Company, 198 NLRB 576 (1972), Gary-Hobart Water Corporation, 200 NLRB 647 (1972), and that it can apply even in situations where there are contentions that a reason for the employers' actions was activity protected under Section 8(a)(3) of the Act National Radio Company, Inc, 198 NLRB 527 (1972), Ap- palachian Power Company, supra It has become equally clear that once having agreed voluntarily to a private means of resolving disputes, parties may not then avoid deferral by the simple expedient of electing not to utilize the voluntarily established procedure Columbia Typograph- ical Union No 101, International Typographical Union No 101, International Typographical Union of North America, AFL-CIO (Byron S Adams Printing, Inc), 219 NLRB 88 (1975), Urban N Patman, Inc, 197 NLRB 1222 (1972), affd 493 F 2d 1249 (C A 9, 1974) Yet, the scope of the deferral doctrine is defined by the extent of the agreement struck by the parties-both with regard to the procedure for resolving disputes and with regard to the types of disputes made subject to that proce- dure Thus, where provision is made for arbitration, but the parties are not obliged to be bound to that procedure for resolving disputes, there will be no deferral "implicit with- in Collyer is the rationale that the Board will defer to arbi- tration proceedings only when, in effect, all parties in- volved are bound by the results of such arbitration " United Steelworkers of America, AFL-CIO, and its Local No 4454 (Continental Can Company, Inc), 202 NLRB 652, 654 (1973), see also Tulsa-Whisenhunt Funeral Homes, Inc, 195 NLRB 106, fn 1 (1972), enfd 84 LRRM 2300 (C A 10, 1973) Similarly, notwithstanding the existence of a voluntarily established, binding procedure for resolving disputes, the particular dispute at issue must be one which is subject to application of that procedure Joseph T Ryer- son & Sons, Inc, 199 NLRB 461, 462 (1972), Reapp Typo- graphic Service, Inc, 204 NLRB 792, In 2 (1973), Interna- tional Union of Operating Engineers, Local Union No 428, AFL-CIO (Mercury Constructors, Inc), 216 NLRB 580 (1975) In the instant case, problems exist in both areas Thus, while issues of arbitrability are "properly determinable by an arbitrator," Urban N Patman, supra, Respondent's agreement contains no provision concerning terminations and the grievance procedure is confined to those disputes relating to "meaning or interpretation" of contract provi- sions and disputes "relating to violations" of the agree- ment Accordingly, no issue of arbitrability exists, for the issues posed by these terminations are clearly independent of the collective-bargaining agreement Reapp Typographic Service, supra, Bio-Science Laboratories, supra Moreover, the fact that the Union commenced handling the dispute by following the procedures set forth in the grievance and arbitration provision of its contract with Respondent does not afford a basis for concluding that deferral should be accorded The simple fact is that at no point did the Union agree, independent of its contract, that the issues posed by the terminations should be submitted to binding arbitra- tion and this would be necessary, at the minimum, to appli- cation of the deferral doctrine Steelworkers, Local No 4454, supra, Tulsa-Whisenhunt Funeral Homes, supra Con- sequently, I find that the Union's initial processing of the dispute in a manner consistent with that set forth in the grievance procedure of its contract with Respondent is not, of itself, a sufficient basis for deferral on the grounds that there is a voluntary agreement to private resolution of the dispute Cf Columbia Typographical Union No 101, supra, Urban N Patman, supra However, Respondent argues that as a matter of policy, the Board should defer to arbitration without regard to the specific provisions of collective-bargaining agreements en- compassed by the privately established procedures for re- solving disputes In support of this contention, Respondent advances two arguments First, Respondent argues that since Collyer, the Board has expanded the deferral doctrine to the point where, in essence, the wording of the contract is not significant, citing in support of this argument Na- tional Radio Company, Inc, supra, Peerless Pressed Metal Corporation, 198 NLRB 561 (1972), and Houston Mailers Union No 36 affiliated with International Mailers Union (Houston Chronicle Publishing Company), 199 NLRB 804 (1972) Secondly, Respondent argues that there is a public policy, recognized by the Board and the courts, favoring the private resolution of disputes and that as this policy is reflected in Section 203(d) of the Labor Management Rela- tions Act ("Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the appli- cation or interpretation of an existing collective-bargaining agreement "), deferral should be granted Contrary to Respondent's first argument, in each of the three cited cases, the dispute involved specific provisions of the contract in existence between the parties Thus, in Na- tional Radio the Board listed three specific clauses apphca- 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ble to the dispute 2 In Peerless, the Board found specifical- ly, "that the core of the dispute involved a good-faith dis- agreement between the parties concerning the interpreta- tion of the contract '-namely, was the employer's unilateral conduct precluded by its collective-bargaining agreement, construed in the light of past practice and nego- tiating history" In this regard, it should be noted that the record in the instant case is devoid of evidence concerning negotiating history or past practice regarding the pro- cessing of terminations when disputes arose between Re- spondent and the Union Finally, in Houston Mailers it was the applicability of, at the very least, sections 17 through 20 of the agreement involved in that case which occasioned application of the deferral doctrine Thus, in each of these three cases, the Board applied the deferral doctrine only after first ascertaining that there were substantive contract provisions encompassing the dispute which provided a ba- sis for application of the privately established procedure for resolution No similar basis for applying the grievance procedure in Respondent's contract exists in the instant case 3 Respondent's second argument in support of its conten- tion that the Board should defer to arbitration without re- gard to the specific substantive provisions of collective-bar- gaining agreements is based upon the public policy favoring arbitration as illustrated by Section 203(d) Initial- ly, it is worth noting that this language is included in the section of Title II pertaining to the Federal Mediation and Conciliation Service, not to the Board Thus, following the above-quoted sentence from Section 203(d), the following sentence appears "The [Federal Mediation and Concilia- tion Service] is directed to make its conciliation and media- tion services available in the settlement of such grievance disputes only as a last resort and in exceptional cases " Of more pertinence to this proceeding is the language of Sec- tion 10(a) of the Act "The Board is empowered, as herein- after provided, to prevent any person from engaging in any unfair labor practice This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise 11 To date, the Board has seen fit to defer to voluntarily established arbitration only where there has been an agree- ment that the arbitration procedures will embrace the dis- pute and be binding In the instant case, there is no evi- dence of such agreement Therefore, I deny Respondent's motion for deferral under the Collyer doctrine 4 2 Significantly, one of these clauses, article XIII, specifically prohibited discipline for other than "just cause " This approach in a collective-bargain- ing agreement would appear to answer Respondents apparent argument concerning the difficulty of drafting a clause to cover all possible situations for which employees might be discharged 3 Contrary to the inference in Respondent's argument, deferral is not con- fined to situations where there is a need to interpret the language of a contract clause It is equally applicable to situations where the wording of the clause involved in the dispute is quite clear, but where its application to the dispute which has arisen is contested 4 In view of this disposition of the motion for deferral, I find it unneces- sary to reach the General Counsels argument that the alleged object of Respondents conduct-reprisal for acting in official capacity for the Union-precludes application of the deferral doctrine IV ISSUES A Were the activities of Franklin Johnson, William Moraga, and Robert Boston in connection with a letter from the Union's Executive Board transmitted to General Foreman John R Collins protected by Section 7 of the Act9 B Whether Respondent, on or about August 15, through Collins, told employees that Johnson, Moraga, and Boston were terminated because they had engaged in union and/or protected concerted activity , if so, whether Respondent thereby violated Section 8 (a)(1) of the Act9 C Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Johnson and Moraga on August 15 and by thereafter failing and refusing to rein- state these two employees9 D Whether Respondent discharged Supervisor Boston on August 15 and thereafter failed and refused to reinstate him in order to discourage its employees from engaging in union and/or protected concerted activities , if so, did Re- spondent thereby violate Section 8(a)(1) of the Act' V SEQUENCE OF EVENTS A Respondent's Operations at the Santa Suzana Test Facilities From a record somewhat vague in this regard, it appears that Respondent does business in many States and that one location where it has conducted operations is the Rocket- dyne Division of Rockwell International Corporation San- ta Suzana Test Facilities in Canoga Park, California That facility is divided into areas, denominated Coca followed by a different number for each area and with each area further subdivided by (a), (b), (c), etc designations Thus, Respondent had two contracts for installation of pipe on test stands used to test rocket engines for the space shuttle program, which involved modifying and adding to existing structural steel test stands by installing piping so that the vessels or trunnion to which the rocket engine was attached could be positioned properly on the test stand The work under these contracts was performed at locations denomi- nated Coca 1 and, approximately a quarter of a mile away, Coca 4 The two contracts under which Respondent performed this work for Rocketdyne were designated bid package two and bid package six Performance under both contracts was initially intended to be on a fixed price basis, but com- pletion was delayed under both contracts with the results that completion on bid package six was delayed for 27 or 28 weeks after the initially scheduled June completion date and completion on bid package two was also delayed To avoid overloading its regular fabricator, Respondent had issued a change for performance of shop fabrication welding at Rocketdyne's site This led to the creation of three weld shops and a cleaning area at a location approxi- mately 1 or 2 miles from the bid package two test stand, referred to as the "bowl area" However, by early summer, the need for shop fabrication had diminished to the point where Respondent began phasing out shop work and con- solidating what little remained with its test stand work It BOVEE AND CRAIL CONSTRUCTION COMPANY was during this period that the facts giving rise to the in- stant proceeding occurred B The August 13 Letter The alleged discriminatees were members of the Union's Executive Board a five-member panel established for the purpose of handling intraumon problems unrelated to grievances William Moraga had worked at the test facility as a pipefitter and Franklin Johnson as a welder After serving as general foreman, Robert Boston had become a foreman in the bowl and it is undisputed that he was a supervisor at all times material herein On July 22, the Executive Board resolved to send a form letter to J R Collins, Respondent's general foreman and a member of the Union The text of this letter, ultimately mailed on August 13 and on which appeared the signatures of all Executive Board members, reads The Executive Board of Local Union #484, requests your presence at a meeting to be held at this Local Union office, 1955 N Ventura Avenue, Ventura, Calif The meeting will convene at 7 30 p in Aug 26, 1974 The purpose of this meeting is to discuss ways and means of having a more harmonious job, both for the mutual benefit of the local union members and the Contractors job Your failure to appear at this meeting, will give just cause to be disciplined by the Executive Board, under Article XII-Paragraph 2, of the Local Union 484 By- Laws The text of article XII, paragraph 2 of the bylaws was reproduced on the lower left corner of the letter to Collins and provides that members who failed to appear before the Executive Board "may be disciplined " Two principal points were covered in depth during the course of the hearing regarding the transmission of this letter the normality of sending such a letter and the under- lying circumstances which had led to the decision to send it Turning first to the frequency of sending such letters, Johnson testified that during the year and a half that he had been a board member, no similar letter had been sent to any other foreman, although he acknowledged that he had been aware of the existence of the form letter prior to the July 22 Executive Board meeting and he admitted that he had not attended all such meetings during his term of office Both Business Manager Grimm and Business Agent Smith testified that such letters had been sent to foremen in the past, although not frequently, but neither identified any specific examples of foremen who had received such letters and Grimm acknowledged that he was not aware of any such letter, other than the one to Collins, being sent during Johnson's term as board member Boston, who had been an Executive Board member for 4 or 5 months, testified that it was "common procedure" to send such letters to foremen and that while no other foremen of Respondent had received such a letter, foremen employed by Bechtel Corporation and R K T Plumbing, among others, had re- ceived them 517 The second principal point litigated in connection with the sending of the letter to Collins involved the circum- stances which had led to the board's decision Johnson tes- tified that he had "probably" been the one to raise the subject during the July 22 semi-monthly meeting of the board and that he had done so because while he had been a steward at the test facility, he had learned of many minor problems which had arisen As these did not involve viola- tions of Respondent's collective-bargaining agreement with the Union and inasmuch as there would have been thorough confusion and consumption of time were he to attempt to resolve these on the job with the stewards and supervisors, Johnson testified that he believed that these matters could be better handled were the board to meet with Collins From the testimony of Boston, Moraga, and Johnson, the letter was being issued to Collins in the latter's capacity as a member of the Union and not in his capacity as general foreman Further, there were no griev- ances pending against Respondent at the test facility In fact, Moraga testified that he not only had no grievances, but that so far as he was aware, there was no lack of har- mony on the job While Moraga was not asked, both John- son and Boston, when asked, denied that the sending of the letter was motivated by Boston's reduction to foreman and Collins' status as general foreman This might be an appropriate point at which to review the events of August 26 when Collins met with the Execu- tive Board Collins testified that, as it turned out, most of the meeting was about the men on the job and actually it was mostly the men being efficient, sending out efficient men that were capable of doing the job I made the remark that we were the highest paid craft probably in the world and that we were expected to come out there and be able to do a decent job in the pipe fitting industry I do not remember how long the meeting lasted, but that was mostly the discussion was to that extent Although Collins denied that he had discussed, during this meeting, referral of more efficient employees, he also testi- fied that, "most of the discussions, as I said, were about our manpower situation and qualified personnel " Simi- larly, Boston testified that while there had been some dis- cussion regarding the failure to rotate overtime, this was an area over which Collins had no control and the conversa- tion centered, instead, on "more harmonious relations be- tween labor and management" with such items as piping not fitting too well on the Coca 4(b) stand and which per- sonnel were responsible for correcting vets (mistakes) from the 21-6-9 extruded pipe being covered Grimm testified that Collins was asked if there had been problems with the overtime (as complaints had been received by the Union concerning the matter) and what in his opinion would be beneficial to the job Collins, testified Grimm, voiced the opinion that some of the employees working on the job were not as qualified as were others and this led to a dis- cussion regarding the disparity of the qualifications of dif- ferent workers It is noteworthy that Collins had brought a tape recorder to this meeting and had announced that he 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intended to turn it on if events became belligerent Yet, he never did use the recorder C The Discharges On August 14, when the Executive Board's letter was received at Collins' home by his wife , she telephoned Col- lins at work 5 and reported the contents of the letter to him That evening, Collins read the letter and on the following day, reported its contents, excluding the substance of the by-law provision, to Project Manager Dale Denny Boston testified that at approximately 9 am on August 15, Collins motioned him outside the pump house where he (Collins) said that his wife had been upset about receiving the letter and that when he had brought the letter to work and had shown it first to Ernie Pallotto 6 and then to Den- ny, the latter had said, "They are gone, one two three " Collins, testified Boston, went on to say that he knew what the three fab shop employees were doing and, when Boston pointed out that the board members had only wanted to talk to him, had replied that it "is out of my hands" and "You are going to go down the road" because of the letter While denying that he had told Boston that the layoff was because of the letter , Collins did admit having a conversa- tion with Boston concerning the letter and the layoff Col- lins further acknowledged that during that conversation, he had told Boston that he did not appreciate receiving the letter, that he was "upset over the letter" and thought that Boston should have spoken to him first about the matter prior to sending the letter, that he had told Denny about the letter, and that "there was going to be a layoff and they were going to be laid off that day " Boston reported the substance of Collins' comments to Moraga and Johnson and apparently as the three men were conversing, Collins approached them with their checks and work orders I Boston testified that when he pointed out that his work order was not completed in the space labeled "Reason for Termination" and that it had not been signed, Collins replied that he did not know what to write down and then, after Boston suggested that he write down the reason that he had given Boston earlier that morning, Col- lins left with all three work orders, returning 15 minutes later with the work orders signed by Pallotto and with the space "Reason for Termination" on each completed to read "Work not satisfactory " Boston testified that he im- mediately asserted that "This is a lie," and accused Collins of knowing better Moraga testified that he asked why Col- lins could not insert the truth Neither question was an- swered Collins did not deny that the events transpired in this manner, but testified only that he was uncertain whether it had been in the morning or the afternoon when he had notified the three men of their termination and de- nied speaking directly to Moraga or to Johnson that day, having left it to their foreman, Boston, to notify them of their layoffs 5 This was unusual, since Collins, himself, did not like employees to re- ceive personal calls while at the test facility 6 Respondents superintendent at the test facility who did not appear as a witness 7 Slips which employers complete so that terminated employees can sub mit them to the Union D The Post-Discharge Conversations Following the distribution of the work orders, Johnson, Boston, and welder Marlin Whipkey testified that there was a brief conversation between Whipkey and Collins Whipkey testified that when he asked Collins, whom Whip- key characterized as being quite upset at the time, what was going on, Collins had replied that Boston, Moraga, and Johnson had been laid off because he (Collins) had gotten a letter from the Union which had led his wife to call him on the job despite his prior instructions to her never to do so unless it was important , that when he had gotten home that evening , he had read the letter which asked that he appear before the Executive Board and stat- ed that he would be fined if he failed to appear , that he did not understand why the matter could not have been taken care of on the job without issuance of summons like this, and, that when he had either shown or described the letter to Denny, the latter had said , "They will be laid off at noon " Boston, who had been standing approximately 7 feet away, waiting for transportation to the parking lot, testified that the only portion of the conversation which he had overheard was Whipkey's initial question, "What is this all about, John'" and that portion of the reply in which Collins said, "Well, I got this letter " Similarly, Johnson testified that he had heard only Whipkey's ques- tion inquiring what was going on and Collins' reply, "They sent me a nasty letter" Johnson testified that he had not heard Collins say that the discharges were caused by the letter While he conceded that it was possible that he might have spoken with Whipkey that day, Collins testified that he did not recall having done so and he denied only that he had told Whipkey that Boston, Moraga, and Johnson had been laid off because of the letter Everett Blevins, a welder serving as job steward on Au- gust 15, testified that at between 10 30 and I 1 a in, Collins had approached him at Coca 4(b) stand and had said that he wanted to explain why Boston, Johnson, and Moraga had been "let go " Collins, according to Blevins, then said that he had received a letter bearing the three men's names and directing him to appear before the Executive Board, that the letter had "upset his wife immensely," that Denny had said to get rid of the three men, and "that is why I am letting these men go " Collins denied telling Blevins that the three men had been laid off because of the letter How- ever, he admitted having had a conversation with Blevins on the day of the layoffs in which he had discussed Boston's layoff, had told Blevins about receiving the letter from the Executive Board , and had said that he was upset about the letter He was unable to recall whether he had told Blevins that Denny was going to lay off Boston, al- though he admitted that it was possible that he had done so and that it was also possible that he had admitted to Blev- ins that he had discussed the letter with Denny On his normal rounds, Business Agent Smith happened to visit the test facility on the afternoon of August 15 and when Blevins reported that Boston, Moraga, and Johnson had been discharged because of the Executive Board's let- ter, the two of them went to see Collins When Smith broached the matter, it is undenied that Collins said that he had received the letter from the board , that his wife had BOVEE AND CRAIL CONSTRUCTION COMPANY become upset about it, and that when he had described the letter to Denny, Denny had said to get rid of the three men As the conversation progressed, Smith asked who had made the decision and Collins replied that it had been Pal- lotto who had signed the work order This then led the three of them to Pallotto's trailer-office, but Pallotto, faced with Smith's questions, suggested that they see Denny Thus, Smith, Blevms, Collins, and Pallotto went to Denny's office where Denny told Smith that Respondent had in- tended to lay off all three men on the following day, that the letter had not been the reason for their terminations, and that they had been terminated for "unsatisfactory work " Smith testified that Denny had confined his answer to the generalization "unsatisfactory work," but Denny tes- tified that he had told Smith that the terminations had occurred because the three men had been milling around, that their work had not been satisfactory and that both he and Pallotto had mentioned that there had been friction on the job, although he acknowledged that he had been "very cautious as to what I said to Mr Smith because I wanted to talk to Mr Grimm " There were, in fact, conversations between Grimm and Denny regarding the terminations, for on Saturday, August 17, during a telephone conversation, Grimm accused Re- spondent of having effected the terminations primarily be- cause of the letter and Denny denied this accusation, as- serting, instead, that the matter had been occasioned by normal attrition and shutdown on the job Grimm said that the Union would consider the matter as settled if the three men were reinstated, but Denny responded that he could not do this without laying off three other workers who would then, in turn, accuse Respondent of improprie- ty Denny did say, however, that if work increased, Boston, Moraga, and Johnson would be acceptable for rehire and the telephone conversation ended with Denny promising to send Grimm a letter on the matter-a promise which Den- ny fulfilled that very day by sending a letter which, in part, reads Confirming our telephone conversation of 8/17/74 Bovee & Crail's decision to layoff Messrs R Boston, F Johnson, and Wm Moraga was not a result of a letter sent to our General Foreman We have been functioning with one Steward as of August 12th and Frank Johnson was not functioning in that capacity when he was laid-off The Contractor's impression was that Mr Evert Blevins was the Steward on the jobsite and since the Fab Shop had moved to the Test Stand area that there was no longer any reason to be functioning with two (2) stewards During the duration of this job there may be times when our General Foreman will be directed to do cer- tain things that the Union may not approve of, howev- er, the Union must realize that the Contractor is mak- ing the decisions and not the General Foreman The Contractor will not direct him to do anything which is not within the combines of the National Construction Agreement After receiving this letter, Grimm journeyed to the test facility in late August where he spoke with Denny, renew- 519 mg his assertion that the terminations had not been justi- fied since witnesses had reported that they had been moti- vated primarily by the letter Denny again denied this and reaffirmed his earlier explanation that the terminations had occurred because of a reduction in force Grimm pointed out the inconsistency of this explanation with the notation of unsatisfactory work on the work orders and inquired if Respondent would rehire Boston, Moraga, and Johnson, but Denny declined on the grounds that there was no work for them and to rehire them would mean that three others would have to be laid off During this conversation, Denny again expressed his willingness to accept all three terminated individuals back again providing the progress of the work necessitated the hiring of additional personnel and providing the three men's names came up on the out-of-work list Denny testi- fied that he viewed the situation as resolved and settled based upon his offer But, Grimm testified that the failure of Respondent to agree to reinstatement and the inconsis- tency of the reduction-in-force and unsatisfactory work de- fenses led him to conclude that the matter was not resolved and, accordingly, he contacted International Representa- tive Stein Meanwhile, about a week after the terminations, Whip- key was approached by Collins who said that Boston, Mor- aga, and Johnson had been scheduled for layoff anyway and that Denny had been wanting to lay them off for some time because he viewed them as troublemakers, but that he (Collins) had stood up for them as they were good workers whom he did not want to see laid off Then, testified Whip- key, Collins added that he thought that Boston wanted to be a supervisor, but that if he were to become one, he was going to have "to be company" as he could not "be both a supervisor and be union " Two or three weeks later, Whip- key testified, during a discussion of the 21-6-9 heavy wall piping, Collins commented that Boston had been sched- uled to supervise the work of installing this piping The matter was then dropped and not discussed further, ac- cording to Whipkey These comments were not denied by Collins during direct examination, although cross-exami- nation did elicit a denial that Collins had told Whipkey that Denny considered the three terminated individuals to be troublemakers Cross-examination also generated the following interchange with Collins Q Did you ever tell Marlin Whipkey that Robert Boston was being considered for the foreman's posi- tion for the pipeline crew, did you ever tell Marlin Whipkey that A For the pipeline crew9 Q Yes A What pipeline crew? Q I don't know Did you ever have such a conver- sation with Marlin Whipkey? A I didn't have any pipeline Q Did you ever tell Mr Marlin Whipkey after Bos- ton was laid off, did you ever tell Marlin Whipkey that Robert Boston was being considered for a foreman of any type of crew at Bovee and Crail' A He was a foreman Q After Boston was laid offs 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Well,- Q I am dust asking you whether or not you had this conversation If you did not have this conversation, say so A I don't know what you are trying to do You are asking something there- Q I am just trying to ask you what your recollec- tion is as to certain conversations with Marlin Whip- key about Robert Boston If you did not have any conversations, just tell the Court you deny having such a conversation, or if you think it is possible that you had a conversation- A (No response) Q Did you-you were here in the courtroom when Mr Marlin Whipkey testified this morning, were you not9 A I think probably the last part of it is all Q Did you ever tell Marlin Whipkey that Robert Boston was scheduled to take over the installation of the heavy wall piping crew9 A That he was scheduled to take it over? Q Scheduled to be the foreman of it' A I know what you are talking about now Q Okay A He was not scheduled, but he was being consid- ered for it Me, I was considering putting him on that after- JUDGE All right, Mr Collins Now, counsel's ques- tion is, did you tell Mr Marlin Whipkey that9 MR SUNNESS That's right JUDGE Read the statement to him again Q (By Mr Sunness) Okay, that Robert Boston was being scheduled to take over as foreman of the heavy wall piping crew, did he ever make such a statement to Marlin Whipkey7 A He has got it worded there a little differently than what it actually was JUDGE Well, did you or did you not tell him that, yes or no? THE WITNESS Not scheduled, no Q (By Mr Sunness) Did you have-do you recall having a conversation with Marlin Whipkey about Robert Boston working with the crew that would be installing the heavy wall piping9 A I do not recall talking particularly with Whipkey on it VI RESPONDENT'S DEFENSE Respondent presented basically a two-level defense to the terminations First, that due to the progress of the work, Boston, Moraga, and Johnson were scheduled for termination on Friday, August 16, and, second, that due to their lack of productivity, they were terminated a day earli- er, on August 15 In support of the first level of these de- fenses, Respondent, based largely upon the testimony of Project Manager Denny, contended that as bid package six began nearing completion Respondent made an effort to work on the test stand with a minimum number of employ- ees who were to work longer hours This was necessitated by the compactness of the working space on the stand Moreover, as this work would necessitate the installation of larger pipe, Respondent did not want to continue fabricat- ing smaller pipe since, as Denny stated, "if we put our small stuff in we were not going to be able to get the big stuff in " Accordingly, Respondent commenced laying off fabrication shop personnel in June and by the end of the following month, had laid off a total of 52 such individuals In selecting the employees to be laid off, testified Denny, Respondent attempted to retain those who were capable of working on the test stand During the week of August 5 to 9, the fabrication shops were consolidated and moved to a pump house at the test stand During this same week, according to Respondent, Denny, Collins, and Superintendents Goodwine and Pal- lotto met and made a decision to lay off three additional shop fabrication workers at the end of the following week (August 15) The selections, according to Collins and Den- ny, were made on the basis of the type of work remaining and on the basis of the comparative skills and abilities of the individuals considered The three selected for layoff, according to Denny, were Boston, Johnson, and Moraga However, at the second level of its defense, Respondent asserts that these three individuals became unproductive and began to null around and disturb others with the result that Denny decided to lay them off I day earlier than ini- tially planned While Respondent contends that it was these factors which led to the decision to lay off Boston, Moraga, and Johnson on August 15, there are several factors which tend to show that Respondent was merely taking advantage of a coincidental reduction in its operations and attempting to advance that reduction as a pretext to cloak its true motive of terminating the three men because of their participation in the Executive Board letter to Collins First, Respondent contended that the drawings had been virtually completed and that work on further drawings could be completed at a later time-particularly in light of the need to avoid block- ing installation of "big stuff" with "small stuff " Nonethe- less, Boston, Moraga, and Johnson had been permitted to continue working in the fabrication shop even after it had been moved to the pump house Of course, Denny did tes- tify that it had been Respondent's intent to permit the three men to finish the workweek before laying them off "We were going to be, let's say, nice guys and let it go out through the end of the week, if they made a reasonable effort to keep busy" Yet, it is somewhat hard to under- stand Denny's beneficence in this regard for both he and Collins testified that there was no policy of waiting until the end of a workweek to effect layoffs In fact, the direct converse appears to have been the fact, for Denny ac- knowledged that it had not been normal policy on the job to wait until the end of the week before laying someone off Like I said, at times we laid off on Tuesdays and at times we laid off on Thursdays It was dependent on when the work-we had a hundred and some odd peo- ple and when this thing starts tailing down and you are spending something like a hundred thousand dol- lars a week, you have to take into consideration that BOVEE AND CRAIL CONSTRUCTION COMPANY you just cannot be a good guy all of the time and you have to layoff and not every time it is on Friday It is difficult to understand why Denny would decide to change this policy and be a "good guy" with regard to Boston, in particular, for Respondent accused Boston of becoming so truculent in his attitude toward Collins that work on the site had been impeded due to the "friction" thereby generated Thus, Denny testified that a superinten- dent had reported that Boston's promotion to general fore- man "went to his head" and that toward the end of July, Superintendent Goodwine had reported that Boston was displaying an adverse attitude toward Collins, presumably, because the latter was general foreman and the former had been demoted recently from that position Neither Good- wine nor any other superintendent was called to corrobo- rate Denny in this respect nor was any explanation ad- vanced to explain the failure to provide such evidence Further, though Denny initially testified, "So, I started ob- serving it myself and it just got out of hand," he was unable to cite more than one incident to illustrate Boston's alleg- edly adverse attitude which had resulted in friction imped- ing work at the site The lone incident provided by Denny to support his assertion of "friction" turned out to be somewhat less than portrayed by him, for he testified that Boston had asked Collins a question in a manner which he characterized as "belligerent," but was unable to describe what constituted the "belligerency" in Collins' attitude and, when pressed for such a description, was unwilling to make even an effort to describe it Interestingly, Collins made no mention of this incident and while he did testify that there had been a "bit of friction" between himself and Boston, his sole illustration of this involved an early-sum- mer event when Collins admittedly breached Respondent's chain of command by directly asking a member of Boston's crew if he wanted to work on a weekend Though Collins was subsequently reprimanded by Superintendent Pallotto for doing this, there is no evidence that the matter remained a source of friction between Collins and Boston There are, however, two points at which Denny disclosed what he really meant by his use of the term "friction" When a person thinks that he can start dictating to us or will try to dictate to us how we are going to do things and we are paying the bills, we are out there trying to make the job work, it is one thing to try to follow union rules which we did, but this was another thing, this was a deal where decisions had to be made And later the whole crest [sic] of it was that we were trying to run a job and these individuals were wanting it run their way This was the way he [Collins] felt about it and we were trying to run the job the way we saw fit or the way Bovee and Crail and myself and Pallotto saw fit There is no evidence that Boston, Moraga, or Johnson made any effort to interfere with the way that operations on the job were conducted There were a number of other points on which Denny's testimony was either internally contradictory or was con- 521 tradicted by other evidence in the case Thus, Denny con- tended that his reason for laying off welder Johnson was "The qualifications on the job Johnson just learned how to weld 21-6-9 when he went to the fab shop " But, else- where, Denny acknowledged that "The 21-6-9, this mate- nal, as everybody knows, it was on the job and had never been welded before " Consequently, Johnson was not the only employee who was a novice in working with this ma- terial, no one else had ever worked with it While Denny asserted that there had been complaints from his superintendent concerning Johnson's speed, this was not corroborated by Collins who, to the contrary, testi- fied that when previous layoffs had been made, he had told Pallotto that he intended to retain Boston, Johnson, and Moraga Nor did Collins deny telling Whipkey that he had been pleased with the work of the three discriminatees Further, as noted above, none of the superintendents were called as witnesses to corroborate Denny's testimony and no explanation was advanced for failing to call them In this connection, it is worthy of note that, like Johnson, Joe Suza also had commenced working for Respondent only as a black iron welder and apparently both men earned their qualification as helharc welders while working at the Santa Suzana site Moreover, Respondent's contention that it re- tained Suza to work in the fabrication shop as acting fore- man because he possessed experience working in the test stands becomes somewhat less than persuasive as a factor for comparison when viewed against the evidence that Johnson had also worked in the other test stand Although Denny testified that "two separate test stands make a lot of difference," he never explained what difference he felt ex- isted between the test stands at Coca 1 and Coca 4(b) Respondent also made an effort to establish that there was a difference between welding in the fabrication shop and welding in the test stands However, to support this assertion, the sole distinction recited by Denny was that employees had to construct their own scaffolds when they worked in the test stands Quite obviously, this is hardly a significant distinction and, additionally, it is worth noting that Johnson had worked on scaffolds when he had been performing underground welding Thus, so far as the rec- ord discloses, the only difference would be the height of the scaffolds Respondent's attempt to establish a significant difference was not greatly assisted by Collins who testified that shop fabrication was easier because "we are working on tables and probably have a few more tools and equip- ment that we could use in the shop than you would use out on the stand " Collins also testified "Welding in the field, what we call a field weld, you weld right on the test stand itself and they are usually, in my way of thinking, more difficult to make because most of them is a position weld " However, the significance of familiarity with field welds as a basis for selecting employees for layoff at the test stand was promptly nullified by Denny's testimony that "we did not need a lot of welding down on the test stand" and "We did not need a lot of welding, whereas on the first project [Bid Package 2] 90 percent of the work was a lot of field welds " Beyond this, welder Marlin Whipkey, who had not signed the Executive Board letter and who had survived the August 15 terminations, testified that there was "Very little difference" between shop fabrication welding and 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field welding, since "I said if you are a hundred foot up in the air you have a scaffold built The scaffold is substantial and safe It has hand railings around it You are in the same position as if you are on the ground " Accordingly, not only is that portion of Respondent's defense which re- lies upon the distinction in abilities required to perform field and shop welding not supported by the record, but Denny's testimony has the effect of obviating any consid- eration of whatever distinction might exist In this posture, Respondent's contention that it appoint- ed Suza as working foreman in the fabrication shop be- cause of his experience working in the stands makes little sense Furthermore, Suza's appointment would have had the tendency to cause a loss of efficiency in the fabrication shop for, as Denny pointed out, "anytime you organize somebody in an area you lose efficiency if you try to bring someone else in and break them in " (Emphasis supplied) Though this testimony was given in connection with work in the test stands, presumably the reasoning would apply in all other areas, including the fabrication shop, in light of the breadth of Denny's statement In fact, the August 15 terminations were demonstrably disruptive of fabrication shop operations Prior to that date, there were three welder and fitter teams assigned to the shop welder Whipkey and fitter Moraga, welder Traitanero and an unnamed appren- tice fitter, and welder Johnson and an unnamed fitter Bos- ton, of course, was their foreman By selecting Johnson and Moraga for termination, two of these teams were dis- rupted and the third team may also have been disrupted, for following the terminations, Respondent replaced Mora- ga with an apprentice as fitter and this may well have been the fitter who had been working with Traitanero The situ- ation was then compounded by the assignment of Suza, who, so far as the record discloses, had no experience in shop fabrication work, as the foreman By doing this, Re- spondent took the very step that it knew would cause a loss of efficiency-it brought in someone else who had to be "broken in " That efficiency was lost by the terminations was illus- trated amply by what then happened with Whipkey After the passage of a few days, during which Whipkey was forced to "stop and help him [the apprentice fitter] figure out measurements, tell him how to bevel a pipe and so on," Whipkey complained to Suza that production was being impeded by the apprentice and this led to replacement of the apprentice fitter by one Raul Sota No explanation was provided by Respondent concerning where Sota came from and there was no evidence that he had experience either as a fitter or working in a fabrication shop In fact, it appears that he had minimal experience in both areas, for his work was described by Whipkey in the following fash- ion "He knew nothing about it I had to stop and, in fact, the apprentice was a better fitter in regards to that, he knew more about it than Mr Sota " Only when Sota stopped serving as Whipkey's fitter did Suza commence working in this capacity Clearly this sequence of events refutes the assertion that during the week prior to the ter- minations a carefully planned decision was reached to lay off Boston, Johnson, and Moraga, and to use Whipkey and Suza in the shop If this had been the case, why wait almost 2 weeks before assigning Suza to work with Whipkey' No explanation was advanced Respondent did contend that it had retained the apprentice fitter who had been helping Traitanero because it was required to maintain a certain ratio of apprentices to journeymen However, Respondent admitted that it had a number of apprentices on the test stand and that it had had no difficulty with the Union in this regard Moreover, there was no evidence that it needed to maintain an apprentice in the shop to comply with what- ever ratio requirements it had contracted for with the Union Finally, at no point did Respondent explain what happened to Traitanero If there had been the carefully planned decision regarding the fabrication shop that Re- spondent argues took place, what did it plan on doing with Traitanero9 That there was no such explanation indicates that there was no such decision and that, instead, there was hasty action followed by an effort to conceal the true rea- son VII ANALYSIS A Were the Activities of Franklin Johnson, William Moraga, and Robert Boston in Connection with a Letter from the Union's Executive Board Transmitted to General Foreman John R Collins Protected by Section 7 of the Act? The freedom of employees to engage in intraunion activ- ity is protected from reprisal or discrimination by their em- ployer Jacobs Transfer, Inc, 201 NLRB 210 (1973) Ac- cordingly, participation on an executive board established to handle intraunion problems is protected by the Act B Respondent, however, argues that the particular letter transmitted on August 13 in the instant matter transcended the realm of purely internal affairs, because it was directed to Collins, who, while a member of the Union, was also Respondent's general foreman As the letter concerned "ways and means of having a more harmonious job," ar- gues Respondent, the purpose of the meeting was to con- sider matters relating to Collins' conduct of his supervisory responsibilities This being the case, Respondent con- cludes, the letter represented unprotected activity, since a labor organization may not use its power over a supervisor- member in a fashion that has the effect of controlling per- formance of his duties as a supervisor Section 14(a) of the Act makes it clear that the Act does not prohibit supervisors from joining labor organizations See Hanna Mining Co v District 2, MEBA, 382 U S 181, 190 (1965) However, it is equally clear that such member- ship may not be employed as a vehicle to undermine the loyalty which supervisors owe to their employers by virtue of their positions as members of management Beasley v Food Fair of North Carolina, Inc, 94 S Ct 2023, 2027, 74 s I have considered the implications of the dual role performed by Fore man Boston in this regard as both supervisor and member of the Union s Executive Board under the principles of Nassau and Suffolk Contractors Association Inc 218 NLRB 174 and cases following thereafter However Respondent does not advance this as a basis for its decision to terminate Boston on August 15 and it is clear that Boston s termination was not moti vated by any fear on the part of Respondent that his activity might be construed as interference with the administration of the Union in viola tion of Section 8(a)(2) and (1) of the Act Accordingly these principles are not relevant to the instant matter BOVEE AND CRAIL CONSTRUCTION COMPANY LC ¶53, 330 (1974), NLRB v Bell Aerospace Division of Textron, Inc, 416 U S 267 (1974), Florida Power & Light Co v International Brotherhood of Electrical Workers, Lo- cal 641, 417 U S 790, 808 (1974), Chicago Typographical Union No 15 (Hammond Publishers, Inc), 216 NLRB 903, fn 12 (1975) Thus, to prevent injury to the loyalty owed by supervisors to their employers, the Board has struck a balance where supervisors are disciplined or threatened with discipline by labor organizations of which they are members Where the underlying dispute for which the su- pervisor is disciplined or threatened with discipline is one existing between the employer and the labor organization, the Board has held that the discipline or threat of discipline is unlawful See New Mexico District Council of Carpenters (A S Horner, Inc), 177 NLRB 500, 502 (1969), enfd 454 F 2d 1116 (C A 10, 1972), Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc), 218 NLRB 1063 (1975) Conversely, "a union's discipline of a supervi- sor-member falls outside the proscription of Section 8(b)(1)(B) where the offense occasioning the discipline in- volves a matter purely of internal union administration, unrelated, either directly or indirectly, to any dispute be- tween the union and the employer " United Brotherhood of Carpenters & Joiners of America, Local Union No 14, AFL- CIO (Max M Kaplan Properties), 217 NLRB 202 (1975) Turning to the facts of the instant matter, it appears that it was Johnson who suggested that the August 13 letter be sent to Collins Johnson testified that he made the sugges- tion because while serving as a steward, he had heard of many minor problems which could not be resolved on the job without causing confusion and consumption of time At first blush, this description of Johnson's motivation would appear to support the conclusion that the matter is one falling within the first category above-an underlying dispute between Respondent and the Union Yet, the Board has held that a finding of a violation does not turn upon "a determination of the motivation behind a union's act of discipline, but rather on a determination of the rea- sonable effect of that discipline on the supervisor's activi- ties as an 8(b)(1)(B) representative " Chicago Typographical Union No 15, supra, at 3 Beyond this, other testimony makes it clear that the "minor problems" to which Johnson referred were not ones adverse to Respondent's position vis-a-vis the Union First, while the testimony was vague concerning the na- ture of these "minor problems," it is clear that they did not involve allegations of violations by Respondent of its col- lective-bargaining agreement All witnesses who testified concerning the matter agreed that, aside from complaints common to a project of this magnitude, there were no grievances within the meaning of that agreement against Respondent and, so far as that agreement was involved, there was harmony on the job Consequently, this case does not present a situation of disputed interpretation of the collective-bargaining agreement or of disputed applica- tion of the terms of that agreement Cf San Francisco-Oak- land Mailers' Union No 18, International Typographical Union (Northwest Publications, Inc), 172 NLRB 2173 (1968), Teamsters Local No 524, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of 523 America (Yakima County Beverage Company, Inc and Cha- ney Beverage Company), 212 NLRB 908 (1974) Second, the testimony concerning the events which tran- spired at the August 26 executive board meeting do not disclose any effort by Boston, Moraga, or Johnson to dic- tate the manner in which Collins should perform his super- visory duties Cf New Mexico District Council of Carpen- ters, supra, United Brotherhood of Carpenters and Joiners of America, Local Union 751, AFL-CIO (Imperial Cabinet Shop), 204 NLRB 1102 ( 1973) The discussions , as admit- ted by Collins, centered upon the qualifications of the per- sonnel already dispatched to the project-a matter clearly the responsibility of the Union There was also some dis- cussion of the unsatisfactory fitting of pipe on the Coca 4(b) stand and of the identity of the personnel responsible for correcting vets However, these discussions appear to have arisen as an adjunct of the primary matter dis- cussed-the qualifications of the personnel which the Union had dispatched Both items do relate to the person- nel which the Union had dispatched to the job, for poor fits and vets could result from lack of qualification and this, in turn, would be the Union's responsibility to correct in view of the fact that it had selected the persons for dis- patch This appears to have been Collins' point when he testified that he had told the Executive Board that "we were the highest paid craft probably in the world and we were expected to come out there and be able to do a decent job in the pipe fitting industry " There is no evidence that either topic had been the subject of a dispute between Re- spondent and the Union Nor is there any evidence that the Executive Board members attempted to dictate to Collins how fitting and vets should be handled Finally, there is no evidence that the Executive Board made any effort to change any position which Collins maintained to one more favorable to the Union Cf San Francisco-Oakland Mailers' Union No 18, supra Although there was a discussion of the complaints regarding over- time assignments at the project, this appears to have arisen as merely a conversational topic, it was not an area in which Collins had any authority or discretion, and there is no evidence that any effort was made to persuade Collins to adopt the Union's viewpoint on the issue Cf United Brotherhood of Carpenters and Joiners of America, Local Union 751, AFL-CIO (Imperial Cabinet Shop), supra In- deed, while there is some evidence of employee complaints concerning the overtime, there is no substantive evidence that the Union actually disagreed with Respondent's meth- od of operation regarding the overtime assignments In these circumstances, I find that the evidence does not support Respondent's contention that Collins had been summoned before the Executive Board as a means of con- trolling his performance of his supervisory functions or be- cause of a dispute between Respondent and the Union Rather, I find that so far as the record discloses, the Execu- tive Board meeting of August 26 concerned primarily a matter of internal administration of the Union , regarding the qualifications of the employees it had dispatched, and was confined only to Collins' status as a member of the union Any effect upon Respondent was merely ancillary The evidence simply will not support any other reason for the summons issued to Collins on August 13 Moreover, 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that Collins was threatened with discipline for non- appearance does not alter that conclusion If the purpose of the meeting was not one infringing upon Respondent's relationship with the Union, then neither does the threat to discipline Collins for failing to attend that meeting Finally, throughout the hearing and in its brief, Respon- dent attributed nefarious motives to Boston for his conduct in this matter, namely, that Boston was desirous of obtain- ing the position which Collins occupied and that Boston's conduct was motivated by a desire to retaliate against Col- lins for being general foreman There is, however, no evi- dence of this, as discussed more fully below Indeed, it was Johnson who originated the idea of sending the letter and there is no evidence that Boston did other than vote in favor of Johnson's position While Respondent may have truly believed that this had been the purpose for Collins' receipt of the August 13 letter, it has failed to establish that this had been, in fact, the purpose Accordingly, the activi- ty does not lose its protection merely because of Respondent's unfounded belief Ohio Power Company, 215 NLRB 165 (1974) Therefore, I find that the activities in connection with a letter from the Union's Executive Board transmitted to General Foreman John R Collins were protected by Sec- tion 7 of the Act B Whether Respondent, on or about August 15, Through Collins, Told Employees that Johnson, Moraga, and Boston Were Terminated Because They Had Engaged in Union and/or Protected Concerted Activity, If So, Whether Respondent Thereby Violated Section 8(a)(1) of the Act Whipkey testified to a conversation with Collins on Au- gust 15 during which Collins related that Denny had di- rected him to terminate Boston, Moraga and Johnson be- cause of the Executive Board letter Additionally, Boston and Johnson testified to having overheard parts of this conversation 9 That they did not overhear all of the conver- sation between Whipkey and Collins does not negate the corroborative effect of their testimonies Thus, Whipkey testified, in part, that when he had asked Collins what was going on, the latter had replied that Boston, Moraga, and Johnson had been laid off because he had gotten a letter from the Union which had led his wife to call him at work and that when he had either shown the letter to Denny or described it to Denny, Denny had issued instructions to terminate the three co-authors of the letter employed by Respondent While he testified that he had not heard Col- lins say that the discharges were being occasioned by the letter, Johnson did testify that in the portion of the conver- sation which he had overheard, Whipkey had asked what was going on and Collins had replied "They sent me a nasty letter" Similarly, Boston testified that he had over- heard Whipkey's inquiry and Collins' response "Well, I got this letter" Clearly, Collins attributed the receipt of the 9 Contrary to Respondent's argument in its brief I attach no significance to the failure of Whipkey to mention Johnson as being present when he spoke with Collins All this demonstrates is that Whipkey was unaware that Johnson, as well as Boston, was in a position to overhear his exchange with Collins letter as the motivating factor which had led to the termi- nations Similar to the descriptions of the conversation between Whipkey and Collins was Blevins' description of his own conversation and of that which he overheard Smith having with Collins that day Thus, Blevins testified that he was approached by Collins, who said that he wanted to explain why Boston, Moraga, and Johnson were being "let go," that he had received the Executive Board letter which had upset his wife, and that Denny had directed him to termi- nate the three discriminatees Later, in Blevins' presence, Collins told the same thing to business agent Smith-that he had received the letter which had upset his wife and that when he had described the letter to Denny, the latter had said to get rid of Boston, Moraga, and Johnson Collins did not deny making the statement to Smith at- tributed to him by Smith and Blevins Although he did deny telling Whipkey and Blevins that Boston, Moraga, and Johnson had been terminated because of the letter, he conceded that he may have spoken with Whipkey on Au- gust 15, but was unable to recall having done so, and, fur- ther, he admitted having participated in a conversation with Blevins that day during which he had discussed Boston's layoff, had told Blevins about receiving the letter from the Executive Board, and had said that he was upset about the letter He admitted also that it was possible that he had told Blevins that Denny was going to lay off Boston and that it was also possible that he had told Blevins that he (Collins) had discussed the Executive Board letter with Denny Collins was not an impressive witness He appeared to be reluctant to answer questions in areas where answers might be adverse to his own or to Respondent's interests In addition, he evaded and attempted to evade answering questions directly on a number of occasions, as best illus- trated by the above-quoted portion of his testimony when he was cross-examined concerning whether he had told Whipkey that Boston had been under consideration for the foreman's position on the pipeline crew By contrast, Whipkey, Blevins, and Smith, as well as Boston and John- son, answered questions put to them in a straightforward fashion and appeared to be honest and sincere individuals I do not credit Collins and I credit the testimonies of Whipkey, Blevins, Smith, Boston, and Johnson that on Au- gust 15, Collins, in three conversations, attributed the dis- charges to the receipt of the letter In addition, I find that at 9 a in on that same day, Collins told Boston that the three co-signers of the letter who were employed by Re- spondent were going to be discharged because of Denny's hostility occasioned by the letter Such statements quite clearly restrain and coerce employees in violation of Sec- tion 8(a)(1) of the Act New Castle Lumber and Supply Co, Division of Peter Kuntz Co 203 NLRB 937, fn 1 (1973), Carolina Quality Concrete Co, 193 NLRB 463, 469, (1971) Therefore, I find that on August 15, Respondent, through Collins, told employees that Boston, Johnson, and Moraga were terminated because they had engaged in the protected activity of co-signing a letter from the Union's Executive Board to Collins and, accordingly, that Respon- dent thereby violated Section 8(a)(1) of the Act BOVEE AND CRAIL CONSTRUCTION COMPANY C Whether Respondent Violated Section 8(a)(3) and (1) of the Act by Discharging Employees Johnson and Moraga on August 15 and by Thereafter Failing and Refusing to Reinstate Them Affirmatively, there are several factors indicating that the August 15 terminations were motivated by the protect- ed concerted activity of co-signing the Executive Board let- ter of August 13 which Collins received on August 14 and described to Denny the following morning First, as found above, Collins admitted that this was the reason for the terminations on several occasions during the course of the day on August 15-prior to the discharges he admitted it to Boston and following the terminations he admitted it to Whipkey, then to Blevins, and, finally, to Smith in Blevins' presence As he was next in command to Denny, was a supervisor and was admittedly privy to the reason for Denny's decision to terminate Boston, Moraga, and John- son, Collins' comments are clearly attributable to Respon- dent Valley Oil Co, Inc, 210 NLRB 370 (1974), Glenroy Construction Co, Inc, 215 NLRB 866 (1974) Second, Collins was not the only official of Respondent to make statements demonstrating that the true motive for the August 15 terminations was the Executive Board letter to Collins Denny also did so Thus, in his August 17 letter to Business Manager Grimm, Denny first denied that the letter to Collins had been the reason for the terminations and then proceeded to admonish Grimm on the need for the general foreman-Collins-to be relieved of union re- strictions while performing his duties This, of course, is the very thing that Respondent accuses Boston, Moraga, and Johnson of attempting to do through the Executive Board As there is no evidence of any other events which led Re- spondent to level a similar accusation against the Union, Denny could only have been referring to the August 13 Executive Board letter to Collins when he wrote these words to Grimm Yet, if that Executive Board letter was not the reason for the terminations, why raise the subject in a letter discussing those terminations9 The only reasonable explanation is that it was, in fact, the August 13 letter which occasioned the terminations and despite his denial of that fact, Denny wanted to be certain that the Union understood Respondent's position on the matter This was not, of course, the only point at which Denny's statements embody a similar admission Twice were similar admis- sions made during the course of Denny's testimony accus- ing Boston initially of attempting to dictate to Respondent how to do things even though Respondent was assertedly following union rules and, on the second occasion, accus- ing the three terminated individuals of attempting to "run" the job as they wanted it run There is no evidence of any attempt by Boston, Moraga, or Johnson to interfere with the job In fact, the record is quite clear that they had never voiced complaints to Respondent or filed grievances against Respondent in connection with operations at the Santa Suzana site Denny could only have been referring to the August 13 letter when he made these comments Ac- cordingly, these statements disclose that his underlying motive for the terminations was his hostility toward Bos- ton, Moraga, and Johnson for participating in the trans- mittal of the Executive Board letter to Collins 525 A third factor demonstrating that the terminations re- sulted from the August 13 letter to Collins was the abrupt- ness of the terminations and a fourth factor is the timing of those discharges with relation to Denny's acquisition of knowledge concerning the letter Thus, it is conceded that Collins learned of the letter during the day on August 14, he read it that evening and on the following morning re- ported its contents to Denny during a conversation when he was told to lay off Boston, Moraga, and Johnson Al- though Collins and Denny both denied that the termina- tions were occasioned by Collins' report of receipt of the letter, "[t]he abruptness of a discharge and its timing are persuasive evidence as to motivation " NLRB v Montgomery Ward & Co, Incorporated, 242 F 2d 497, 502 (C A 2, 1957), cert denied 355 U S 829 (1957) Moreover, I have credited those witnesses who testified that on Au- gust 15, Collins told them that Denny had directed him to terminate Boston, Moraga, and Johnson because of the let- ter A fifth factor showing discriminatory motivation is the high percentage of signers of the August 13 letter who were terminated on August 15 So far as the record discloses, the only three individuals working for Respondent who signed the August 13 letter were Boston, Moraga, and Johnson The only three persons terminated on August 15 were Bos- ton, Moraga, and Johnson This high percentage of letter- signers selected for termination is, in itself, a suspicious circumstance Eastman Kodak Company, et al, 194 NLRB 220 (1971), Montgomery Ward & Co v NLRB, 107 F 2d 555, 559 (C A 7, 1939), F W Woolworth Company, 25 NLRB 1363, 1372-1374 (1940), enfd in pertinent part, 121 F 2d 658 (C A 2, 1941) This suspicion is only heightened by the fact that an apprentice was retained while persons of the caliber of Moraga and Johnson were terminated Though Denny testified that Respondent was obliged to maintain a certain percentage of apprentices, there is no evidence supporting such a contention, there never was any explanation of the percentage required, assuming that such a requirement existed, and there were a number of apprentices on the stand, thereby raising the question of why it would be necessary to maintain an additional ap- prentice in the fabrication shop The final affirmative factor demonstrating that Respon- dent was motivated by the letter in effecting the August 15 terminations is the shifting nature of the reasons advanced for the terminations Having first told Boston that the ter- minations were being effected because of the Executive Board letter, Collins then refrained from listing this as a reason on the work order and, pressed by Boston to put a reason on the work order, Collins left the area of the three terminated individuals and later returned with "Work not satisfactory" inserted on the three work orders This partic- ular sequence of events raises two points if, as Respondent contends, the decision to terminate the men had been made during the prior week and if the date of termination was advanced because of lack of production, why was it necessary for Collins to go elsewhere to obtain advice on the reason to insert on the work orders, and, secondly, why should Collins have concurred in this conclusion when he admittedly was satisfied with the work of all three men and within a month of the terminations admitted to Whipkey 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Boston had been scheduled to supervise the work of installing 21-6-9 heavy wall piping prior to his termina- tion'? Then, when Smith arrived at the project and com- menced a dispute concerning Respondent's reason for the terminations, Respondent abandoned the reason listed on the work order and, for the first time, advanced the reduc- tion-in-force defense which it has adhered to throughout this proceeding Accordingly, to cover Collins' admission of the real reason for the discharge, Respondent first ad- vanced as a reason for the terminations that the work of the three men was not satisfactory Faced, then, with a controversy concerning this reason and apparently recog- nizing that it might be difficult to sustain such a position, Respondent changed direction and adopted the more de- fensible position that the terminations were to be effected in any event due to the declining work at the site In fact, this final line of defense-reduction in force- presents both gaps and inconsistencies as pointed out in section VI, supra Thus, if, as Denny testified, continued work on the "small stuff" risked impeding installation of the "big stuff," why were Boston, Moraga, and Johnson permitted to continue performing such work once the fab- rication shop had been moved to the pump house Denny testified that it was because Respondent wanted to be "nice guys and let it go through the end of the week " This, however, makes no sense in light of certain other portions of Denny's testimony It was not uncommon for Respon- dent to effect terminations in mid-week for, as Denny pointed out, "you are spending something like a hundred thousand dollars a week, you have to take into consider- ation that youjust cannot be a good guy all of the time and you have to lay off and not every time it is on Friday " Indeed, mid-week layoffs were not uncommon at Respon- dent and in this particular case, if there really was concern about continued fabrication of the "small stuff," it hardly makes sense to permit Boston, Moraga, and Johnson to continue fabricating this type of material merely to be a "good guy " In fact, in view of the intensity with which Denny voiced his complaint that Boston had been creating "friction," it hardly is likely that, if true, Denny would have been so charitable as to create an exception to the practice of terminating employees when no longer needed without regard to the point in the workweek when this oc- curred The charge of causing friction at the project, leveled by Respondent against Boston, ultimately proved to be un- supportable Denny was unable to provide more than one illustration of what he meant by this generalized charge against Boston and with regard to that illustration was unwilling to even make an effort to describe fully what had taken place Though this incident allegedly involved Col- lins, the latter did not corroborate Denny's testimony In- stead, after making the same generalized charge against Boston, Collins also listed but one example and this turned out to be an incident where, concededly, Collins had vio- lated Respondent's normal procedures, thereby upsetting Boston Yet, there is no evidence that Boston thereafter maintained an attitude of hostility toward Collins because of this incident Beyond this, taken together, the incident described by Denny and the incident recited by Collins hardly support their generalized charge that Boston was generating "friction" and thereby impeding production at the test site It is also noteworthy that while Denny testified to receiving reports from Superintendent Goodwine con- cerning this "friction," at no point was Goodwine called to corroborate Denny in this regard nor was the failure to call him as a witness explained Nor was the selection of Johnson and Moraga for termi- nation as logical as Denny attempted to portray The effect of terminating them was to break up two and possibly three, if the apprentice fitter working with Traitanero was the one then moved to work with Whipkey, teams This, of course, clearly was contrary to Respondent's overall policy of avoiding loss of efficiency by avoiding disruption of the personnel in a given area It is not disputed that Johnson was a novice in welding the 21-6-9 material But, so was every other welder at the Santa Suzana site Though Denny claimed that there had been complaints from the superin- tendent concerning Johnson's work, no superintendent was produced to corroborate Denny in this regard and it is not disputed that Collins had expressed satisfaction with Johnson's work While Johnson had never worked in the one test stand, he had worked on the other stand and, though Denny claimed that there was a difference between work done on the two stands, he never explicated what he meant by this and it is hard to understand what this differ- ence could have been in view of the fact that both stands were erected for testing space shuttle engines A similar fate was suffered by Denny when he attempted to distin- guish between shop and stand welding Obviously, the for- mer is done on the ground and the latter on a scaffold However, as Whipkey testified, other than the height at which one works, there was no evidence of any substantial difference in the welding for the two areas In fact, whatev- er difference may have existed was rendered largely irrele- vant by Denny's own testimony that Respondent did not need a lot of welding on this stand Respondent's defense of a carefully planned decision to lay off Boston, Moraga, and Johnson and to assign Suza to serve as working foreman in the fabrication shop was fur- ther undermined by Whipkey's unrefuted description of the events which followed August 15 Thus, Moraga was replaced by an apprentice fitter whose work so impeded Whipkey's production that he complained about the mat- ter This then led to the assignment of Sota as Whipkey's fitter, an assignment which generated even less productive results Only then did Suza commence serving as Whipkey's fitter Quite clearly this somewhat confused ef- fort to find an adequate replacement for Moraga contra- dicts Respondent's thesis that during the week preceding the terminations there was a carefully planned decision as to how the fabrication shop work should be handled after the move to the pump house Unexplained was what hap- pened to Traitanero and the other fitter assigned to the fabrication shop prior to the terminations Undenied was Whipkey's testimony that he continued performing the same duties at the pump house following the terminations As stated above, I found Collins to be a singularly unim- pressive witness While making a somewhat better appear- ance as a witness, I had reservations about Denny during the time that he testified These reservations are borne out by analysis of his testimony concerning Respondent's de- BOVEE AND CRAIL CONSTRUCTION COMPANY fense In fact, there are simply too many gaps and inconsis- tencies in Respondent's defense to find that it is support- able As the United States Court of Appeals for the Ninth Circuit stated in Shattuck Denn Mining Corporation [Iron King Branch] v NLRB , 362 F 2d 466, 470 (1966) If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference I find that the motive advanced by Respondent for the August 15 terminations is false I further find, as stated above, that surrounding facts tend to reinforce that infer- ence, since they show that Respondent was motivated by the Executive Board letter to Collins when Denny made the decision to terminate Boston, Moraga, and Johnson What appears to have happened is that Respondent had reduced its shop fabrication complement prior to moving that work to the Coca 4(b) test stand When Denny was notified of the Executive Board letter, he then directed the terminations of the signers employed by Respondent Un- able to persuade the Union that the terminations were for unsatisfactory work, Respondent then attempted to cloak its unlawful motive for the terminations by attempting to fit them under the umbrella of its reduction in force-a seemingly simple matter in view of the complexity of the work and Respondent's ability to shift work between the stand and the fabrication shop 10 Therefore, I find that Re- spondent did discharge Moraga and Johnson for engaging in the protected activity of participating in sending the Ex- ecutive Board letter of August 13 to Collins As the sending of this letter was activity protected by Section 7 of the Act, I find that these discharges violated Section 8(a)(1) of the Act In view of this finding, it is unnecessary to determine whether Respondent also violated Section 8(a)(3) of the Act in this regard See Jacobs Transfer Inc, supra at 219 Respondent further contends that it settled this matter by telling the Union that it was willing to accept the three individuals back as employees if, when Respondent next sought employees, the Union were willing to dispatch them Two points are significant in this regard First, such an offer is, in effect, no more than an invitation to reapply for work Such an offer does not constitute a valid offer of reinstatement See Hydro-Dredge Accessory Co, 215 NLRB 138 (1974) Respondent was "simply offering the employees jobs as new hires, something clearly less than they were entitled to receive " Rushton & Mercier Woodworking Co, Inc, 203 NLRB 123, 127, enfd 86 LRRM 2151, 75 LC ¶10, 384 (CA 1, 1974), cert denied 419 US 996 (1974) Second, under Section 10(a) of the Act, the Board's power to prevent persons from engaging in any unfair labor practice "shall not be affected by any other means of adjustment or prevention that has been or 10 It may also be possible, in view of payroll clerk Ortiz testimony con cernmg what was told to her when she received the call regarding the termi- nations, that Denny had early formulated the defense that he would ad- vance as a pretext but had failed to communicate it to lower supervision thereby causing the lower-level confusion 527 may be established by agreement, law, or otherwise " Ac- cordingly, even assuming that the Union was satisfied with the resolution of this dispute, there is no basis on which the Board would withhold jurisdiction in this matter (See sec- tion III, supra) In fact, the Union was not satisfied with Respondent's willingness to accept Boston, Moraga, and Johnson as new hires in the event that they were dis- patched Consequently, I find that there has been no pri- vate adjustment of this matter Therefore, I find that Respondent did violate Section 8(a)(1) of the Act by discharging and thereafter failing and refusing to offer reinstatement to Franklin Johnson and William Moraga because they engaged in the protected concerted activity of participating in the sending of in- traunion correspondence to another member of the Union concerning matters of internal administration of the Union Respondent's motion to dismiss this allegation of the complaint is denied In view of this finding, I conclude that it is unnecessary to reach the further question of whether this conduct violates Section 8(a)(3) of the Act D Whether Respondent Discharged Supervisor Boston on August 15 and Thereafter Failed and Refused to Reinstate Him in Order to Discourage Its Employees from Engaging in Union and/or Protected Concerted Activities, If So, Did Respondent Thereby Violate Section 8(a)(1) of the Act An employer is free to discharge a supervisor because of his membership in a labor organization Beasley v Food Fair of North Carolina, Inc, supra However, an employer's freedom in this regard is not unbridled for as the Court pointed out in Florida Power & Light Co, supra, 417 U S at 808, fn 18, It has been held that this right is limited to the ex- tent that an employer cannot discharge supervisory personnel for participation in the union where the dis- charge is found to interfere with, restrain, or coerce employees in the exercise of their protected rights, see NLRB v Talladega Cotton Factory, Inc, 213 F 2d 209 (CA 5 1954), or where it is prompted by the supervi- sors' refusal to engage in unlawful activity, see NLRB v Lowe, 406 F 2d 1033 (CA6 1969) In the instant case, as noted in footnote 9, supra, there was no contention or evidence to support a contention that Boston's discharge was the result of his supervisory status and his participation in protected activities It is clear, as shown by the discharges of Moraga and Johnson, that Bos- ton would have been terminated regardless of his status for participating in the transmission of the August 13 letter to Collins Accordingly, Boston's "discharge was an integral part of a pattern of conduct aimed at penalizing employees " for their concerted activities and, as such, "tended to insure the success of the plan to rid the " project of those who were responsible for receipt of the letter by Col- lins Key West Coca-Cola Bottling Co, 140 NLRB 1359, 1361 (1963), see also Krebs and King Toyota, Inc, 197 NLRB 462, 463, fn 4 (1972) That motive would be evident to Johnson and Moraga who were terminated for the same reason and at the same time as Boston Consequently, the discharge of Boston "interfered with, restrained, and 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced rank-and-file employees in the exercise of their [protected] rights within the meaning of Section 8(a)(1) of the Act" Better Monkey Grip Company, 115 NLRB 1170, 1171 (1956), enfd 243 F 2d 836 (C A 5, 1957), cert denied 355 U S 864 (1957) Therefore, I find that Respondent did discharge and thereafter refuse to reinstate Robert Boston because of Boston's participation in the transmission of the August 13 Executive Board letter to Collins and that the discharge had the effect of interfering with, restraining, and coercing employees in the exercise of their protected rights under Section 7 of the Act, thereby violating Section 8(a)(1) of the Act Respondent's motion to dismiss this allegation of the complaint is denied VIII THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Respondent's operations described in section II above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce Conclusions 1 Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By terminating Franklin Johnson, William Moraga, and Robert Boston and failing to make valid offers of rein- statement to them thereafter, and by telling employees that the terminations had been occasioned by protected con- certed activities within the meaning of Section 7 of the Act, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act 4 It is unnecessary to reach the question of whether Re- spondent violated Section 8(a)(3) of the Act by terminating Johnson and Moraga THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action to effectuate the policies of the Act Regarding the latter, Respondent will be required to offer Franklin Johnson, William Moraga, and Robert Boston reinstate- ment to their former positions or if those positions no lon- ger exist, to substantially equivalent positions without prej- udice to their seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which they had been performing prior to the time that they were terminated August 15 Addition- ally, Respondent will be required to make them whole for any loss of earnings they may have suffered by reason of their unlawful termination with backpay to be computed on a quarterly basis, making deductions for interim earn- ings, and with interest to be paid at the rate of 6 percent per annum F W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co, 138 NLRB 716 (1962), enforcement denied on different grounds, 322 F 2d 913 (CA 9, 1963) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By terminating and failing to offer reinstatement to Franklin Johnson, William Moraga, and Robert Boston and by telling employees that their terminations had been occasioned by their protected activities, Respondent has violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5 It is unnecessary to resolve the question of whether the discharges of Johnson and Moraga also violated Sec- tion 8(a)(3) of the Act Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 11 Respondent, Bovee and Crail Construction Company, Paramount, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in concert- ed activity protected by Section 7 of the Act (b) Discharging or otherwise discriminating against su- pervisors where such conduct has the effect of interfering with, restraining, or coercing employees in the exercise of their rights protected by Section 7 of the Act (c) Telling employees that other employees have been terminated because they engaged in protected activities within the meaning of Section 7 of the Act (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Offer Franklin Johnson, William Moraga, and Rob- ert Boston immediate and full reinstatement to their for- mer positions of employment, dismissing, if necessary, any- one who may have been hired or retained to perform the work which they had been performing prior to the time that they were terminated on August 15, 1974, or, if their " In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board the findings conclusions, and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes BOVEE AND CRAIL CONSTRUCTION COMPANY former positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimina- tion, in the manner set forth above in the section entitled "The Remedy " (b) Preserve and make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights as set forth in "The Remedy" section of this Decision (c) Post at its Paramount, California, facility copies of the attached notice marked "Appendix " 12 Copies of the notice on forms provided by the Regional Director for Re- gion 31 , after being duly signed by Respondent 's author- ized representative, shall be posted by Respondent imme- diately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, mclud- mg all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by any other material (d) Notify the Regional Director for Region 3 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges a viola- tion of Section 8 (a)(3) of the Act regarding the termina- tions of Johnson and Moraga 12 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading `Posted by Order of the National Labor Relatons Board" shall read ` Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX 529 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended , gives all employees the following rights To organize themselves To form, loin, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining represen- tative and employer have a collective -bargaining agreement which imposes a lawful requirement that employees become union members WE WILL NOT discharge or otherwise discriminate against any employee for engaging in activity protect- ed by the National Labor Relations Act WE WILL NOT discharge or otherwise discriminate against any supervisor where such conduct has the ef- fect of interfering with, restraining, or coercing em- ployees in the exercise of their rights protected by Sec- tion 7 of the Act WE WILL NOT tell employees that other employees have been terminated because they engaged in activi- ties protected by the National Labor Relations Act WE WILL NOT in any manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act WE WILL offer Franklin Johnson, William Moraga, and Robert Boston immediate and full reinstatement to their former positions, dismissing, if necessary, any- one who may have been hired or retained to perform the work which they had been performing prior to the time that they were terminated on August 15, 1974, or, if their former positions no longer exist, to substantial- ly equivalent positions , without prejudice to their se- niority or other rights and privileges , and make them whole for any loss of pay they may have suffered as a result of our discrimination BOVEE AND CRAIL CONSTRUCTION COMPANY