Gateway Concrete Forming Services, Inc.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gateway Concrete Forming Services, Inc. and Local Union No. 1112, Laborers' International Union of North America. Case 25-CA-16298 20 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 27 August 1984 Administrative Law Judge Bernard Ries issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Gateway Concrete Forming Services, Inc,, Miamitown, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph l(b)."(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against any employees in regard to their tenure of employment, or any term or condition of their employment, because they file grievances pur- suant to a collective-bargaining agreement or oth- erwise exercise the rights guaranteed employees by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Luther McArthur, if we have not already done so, full and immediate reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discharge of him on 2 December 1983, plus inter- est. WE WILL notify Luther McArthur that we have removed from our files any reference to his dis- charge and that the discharge will not be used against him in any way. GATEWAY CONCRETE FORMING SERVICES, INC. DECISION i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We have reviewed the record and also find no merit in the Respond- ent's claim that the judge was biased, nor do we find any evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence 2 In par. 1(b) of his recommended Order, the judge provided that the Respondent shall cease and desist from "in any other manner" interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Sec 7 of the Act However, it is the Board's policy that such an order is warranted only when a respondent is shown to have a proclivity to violate the Act, or has engaged in such egregious or wide- spread misconduct as to demostrate a general disregard for the employ- ees' fundamental rights Hickman Foods, 242 NLRB 1357 (1979) With re- spect to the instant dispute, we find that the broad injunctive order issued against the Respondent is not warranted Accordingly, we shall modify the judge's recommended Order and notice BERNARD RIEs, Administrative Law Judge. Based on a charge filed on March 22, 1984, and a complaint issued on May 3, 1984, and amended on June 22, 1984, a hear- ing was held in this case in Indianapolis, Indiana, on July 9, 1984. Briefs were received from the parties on August 13, 1984. Having given due consideration to the entire record, the briefs, and my recollection of the demeanor of the witnesses, I make the following findings of fact,' conclusions of law, and recommendations. 1. THE ALLEGED DISCRIMINATION AGAINST LUTHER MCARTHUR The principle allegations of the complaint assert that Respondent violated Section 8(a)(3) and (1) of the Act, (1) by assigning employee Luther McArthur to perform "more onerous and less desirable work," and (2) by dis- i Errors in the transcript have been noted and corrected 274 NLRB No. 32 GATEWAY CONCRETE SERVICES charging him on December 2, 1983 The complaint fur- ther alleges two other violations of Section 8(a)(1) based on certain statements made to employees. The following discussion primarily addresses the issue of whether McArthur was discharged, in whole or part, because he filed a grievance pursuant to a collective-bargaining agreement If that conduct was a motivating factor, the discharge would constitute an invasion of McArthur's statutory rights. NLRB v. City Disposal System, 104 S.Ct 1505 (1984) Respondent, an Ohio corporation, is engaged in the business of constructing and then removing forms used for the pouring of concrete at construction sites. It em- ploys two classifications of workers, carpenters and la- borers. Respondent recognizes Laborers Local 1112, the Charging Party, as the collective-bargaining representa- tive of its laborers, and also recognizes carpenters unions as the bargaining agents of its carpenters The building project with which we are concerned was located at the Pendleton Reformatory in Indiana, where Respondent worked as a subcontractor on six buildings under construction Luther McArthur, who has been a member of Local 1112 for 21 years, was referred to the project to be employed by Respondent in the "last of July" 1983. Shortly thereafter, McArthur was desig- nated the union steward for the laborers on the job. The number of laborers employed by Respondent on the site varied daily according to need, ranging from two or three to seven or so; McArthur, however, was scheduled to work on a regular daily basis The immediate supervisor of the laborers was Eugene Dennis While there is a dispute over the issue of Dennis' supervisory status, to be discussed infra, and although he is by contract a member of the bargaining unit, he re- ferred to himself at the hearing as the "labor foreman " The only other responsible Gateway official on the project was Ronald Thompson, who called himself the "carpenter foreman," but also exercised authority over Dennis and the laborers. Probably on Monday, November 21, a few days before Thanksgiving, when McArthur and one other laborer, Gary Wheadon, were working on the job, Dennis told them that they were going to be laid off until the follow- ing Monday Shortly thereafter, McArthur heard that the carpenters were going to work for the 2 days re- maining until Thanksgiving, and that Dennis was also to be retained for those days to perform laborer's work. On November 22, McArthur filed a written grievance alleg- ing violation of a specified article of the bargaining agreement, on the theory that he, the steward, rather than Dennis, should have been kept on the payroll McArthur returned to work from the layoff on No- vember 28. He testified that prior to the layoff, he had "got along friendly" with Dennis, "no problems whatso- ever," but beginning November 28, Dennis was "un- friendly" and would speak to McArthur only when nec- essary. McArthur further said that at some uncertain time before he was discharged on December 2 (which was the Friday following his return to work), Dennis or- dered him to put wheels on a scaffold which weighed 300 pounds or more. He could not perform the task by himself and eventually had to enlist the assistance of 155 three other men A slight man, McArthur testified that he had never before been assigned to perform similar work by himself.2 McArthur at first said that the incident to be next de- scribed occurred on November 28, the day he returned from layoff, but he later testified that he only "think[s]" it was that day Dennis and Thompson, referring to a somewhat different version of what clearly was the same incident, put the date later in the week. I cannot be sure, but the course of events suggests to me that Dennis and Thompson are more likely correct on this point. McArthur testified that on the day in question, while he was helping they carpenters as he had been instructed by Dennis to do, Dennis came over to him and said, "Just because you're a union steward, you can't just stand around like this." McArthur protested that he had not been standing around and told Dennis that "if he didn't like my work to get my check" Dennis just walked away After lunch, according to McArthur, Dennis came by "and I asked him if my work was satis- factory and he said it was fine.3 Probably on December 1, the day before his termina- tion, a meeting on McArthur's grievance was held; present were McArthur, two union representatives, Thompson, and Dennis. The meeting was "kind of cool." McArthur testified, although "nobody got hostile." Dennis departed some 10 minutes after the meeting had begun, saying that they were getting nothing accom- plished and he was going to return to work. Dan Welker, a seemingly credible former employee, testified that when Dennis returned from this meeting he was "a little bit hot " On the following day, about 11 a.m., Dennis handed McArthur his paycheck and said, "I'm going to let you go " McArthur did not ask why and Dennis volunteered no reason Thompson testified that after hearing from Dennis of McArthur's challenge to fire him on Novem- ber 30, he had contacted Respondent's vice president Robert Bilz in Cincinnati, told him of the situation, and received clearance from Bilz to let McArthur go.4 The testimony of Dennis and Thompson was to the general effect that almost from the beginning of McArth- ur's employment with Respondent he had proved to be a most unsatisfactory employee and that the only reason he had been kept on the payroll until December 2 was his status as the union steward: according to Thompson, he had "known other people that have tried to dismiss stewards and it's pretty hard to do " When, however, Dennis had seen McArthur standing around after the November 28 recall and McArthur had taunted Dennis to give him his check if his work was unsatisfactory, 2 This assignment is alleged to be a separate violation of the Act 9 Dennis testified that on Wednesday, November 30, he saw McArthur "standing around" and told him that he had to "quit standing around so much " In agreement with McArthur's testimony, Dennis recounted that McArthur had denied the charge and finally had "hollered to me that if I didn't like his work to get his check " Dennis was not asked about, and therefore did not deny, McArthur's testimony that he had subsequently told McArthur that his work was "fine " 4 Thompson testified, "I can make that decision, but I wanted to make sure that he [Bilz] knew why I was-I wanted to do it " Bdz testified, "I told him to do it " 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson had assertedly found the invitation to be irre- sistible This testimonial version of the decision was con- sistent with a December 5 memorandum addressed to the Union. That memorandum, written by Thompson and signed by him and Dennis, states that McArthur's work was "not suitable enough," that he "stood around too much," that he "missed too much work on his own," that he "still had to be told everything to do," and that his defects had been tolerated only because he was the steward. Even if the picture painted by Dennis and Thompson were an accurate one-that McArthur was an inept, lazy, and undependable worker whose deficiencies had, until December 2, been overlooked because of his union status-there still would remain a serious question as to the source of the courage which had suddenly enabled the two men, 10 days after McArthur had filed his griev- ance, to conquer their fear of getting into trouble with the Union by firing a steward. But, on this record, it is not easy to accept the initial (and, for Respondent, neces- sary) premise that McArthur's work performance had been so unsatisfactory for so long. To begin with, while McArthur seemed to me a most impressive witness,5 I cannot say the same about Dennis and Thompson (although the latter seemed somewhat more sincere than the former). In some areas their ac- counts were contradictory and improbable and they ap- peared to be straining, at the expense of credibility, to supply a valid explanation of the termination of McArthur. 8 Dennis, for example, testified that he did not partici- pate in making the decision to let McArthur go; he "just related" to Thompson the exchange between him and McArthur about the latter in "standing around" and McArthur's asking for his check, and the next morning, with nothing further said on the matter, Thompson "come up and told me . we was [sic] letting go Luther." For one thing, given the information subse- quently elicited at the hearing that Dennis and Thomp- son were longtime friends and were sharing living quar- ters at the time, this absence of an interim discussion seems most unlikely For another, Dennis' partisanship was revealed when he answered, with great firmness, "No, none whatsoever," the question "Did the fact that he filed a grievance have anything to do with Gateway's decision to terminate him9" despite his previous testimo- I I have taken into account McArthur's claim for unemployment com- pensation which contains, at worst, an ambiguity not mentioned further by Respondent on brief 6 This was also my impression of Robert Bilz, Respondent's vice presi- dent, with whom Thompson had consulted by telephone before he finally let McArthur go $dz did not normally work at the jobsite, but he would monitor the documents and "check the payroll " He testified that by doing so he knew that McArthur "missed more [work] than any other laborers on the fob " The parties had earlier stipulated, however, that there was no way to determine McArthur's rate of absenteeism as compared to other laborers because, while McArthur was scheduled to work every day, other labor- ers only worked intermittently for short periods and it would not be pos- sible, accordingly, to characterize their nonappearance on any given date as an "absence" With such a stipulation, it is hard to perceive the basis for Bilz' conclusion, made by "check[ing] the payroll," that McArthur "missed more [work] than any other laborers on the fob " ny that he had been totally removed from the decision- making process. Then again , given his opinion that McArthur was "one of the poorest laborers" that he had seen working for Respondent in his 15 years of employment there, Dennis' testimony about his efforts to bring McArthur up to par did not hang together very well Dennis gave an affirma- tive answer to the question whether he had ever tried to motivate McArthur to be concerned about his work. When then asked to be more specific, he said, "I don't know when, just sometime during the job." When pressed further, Dennis replied, "I tried to explain to him the situation." Asked to identify the "situation," Dennis answered, "Well, the one time I can remember talking to him" involved McArthur working slowly in conjunction with a borrowed crane. It would thus appear that the crane incident was pur- portedly the only occasion during almost a 4-month period on which Dennis had criticized or admonished "one of the poorest laborers" that Respondent had ever employed. That would be surprisingly lax supervision of such a worker, it seems to me. Even accepting, for pur- poses of argument, a contention that concern about get- ting into trouble with the Union stayed Respondent's hand from firing McArthur, there would not very likely have been the same reluctance about simply criticizing him (perhaps even in the hope of causing him to quit); the fact that Dennis says that he did criticize him once prior to the filing of the grievance, and again thereafter, implies that he would feel no constraints about such chastisement. And yet even Dennis could only summon up one such pregrievance admonition, despite what he characterized as a period of continuing "frustration" with McArthur.' Dennis was, moreover, rather volatile in his testimony about the number of conversations he had held with Thompson about McArthur's failings. At first, when called as an adverse witness, he said that he had had "many" conversations with Thompson about McArthur's work, although McArthur had been "not too bad" when "first" employed But by the time Respondent had re- called Dennis to the stand, later in the day, and Dennis was asked how often between July and December he had told Thompson that McArthur was not up to stand- ard, his reply was "Early in the job, probably two or three," and thereafter, Thompson knew it himself. This sort of inconsistency obviously does not inspire confi- dence. The slippery character of Dennis' testimony and his apparent preparedness to give the kind of testimony needed to support his cause (one aspect of the cause being the claim that Dennis possessed no supervisory au- thority) are further exemplified by the following passage: Although McArthur testified in rebuttal, he did not specifically deny Dennis' testimony about the crane incident However, he did testify broadly in his first appearance that, prior to the grievance , he was never "criticized in any way for anything" and that Dennis "seemed to like my work fine " As stated above, the impression I had of McArthur was a much more favorable one than that conveyed by Respondent's witness GATEWAY CONCRETE SERVICES Q. So if-in the process of making sure that the work is done, you encounter a laborer who is slow - have you encountered situations where the labor- ers have been slow in not doing the work? A Yes. Q. And what do you do in that situation? A I tell my boss Q. What do you say to the laborer - you have had this situation before, right? A. Yes Q So what do you do to the laborer, what do you say to the worker? A. I try to hurry them up. Q. Specifically, do you recall any particular la- borer that you have had problems with? A. Well just the one. Q. Who is that? A Luther Q So he is the only laborer that you can recall having problems with on the Pendleton job site? A. No. I should rephrase it. Usually we hire from the hall, and I keep a man, and if he works good, I keep him as long as I can. Or if he is slow, like you said, I - as soon as there is slack work, I give him his layoff check. Q. But you make the judgment as to whether or not this particular employee is a slow laborer or a fast laborer, you make that determination? A. I can-I don't make it and give the final deci- sion. Can I take an example? Q. Yeah? A. Well, if there is a laborer I don't think is working like I think he should, but Ron thinks he is, well, we will keep him. Q. So you would discuss it-discuss this particu- lar laborer? A Right Q So apparently this has happened before. Ap- parently there has been a split in the past over whether or not a given laborer should be kept or not kept? A. No. Q So this has never happened before? A. No. Q. Then why did you just testify that there was a procedure-is there some written procedure for handling this? A. No. Q. I don't understand-if it has never happened, how can you say that that is what you and Ron would do? A. We would talk it over, but I would tell him whether-once it comes time to get lay-to get rid of men, I would tell him who I think should go, but it is up to him. Q. But you testified a little while ago-a minute ago, that in a situation where Ron wanted someone to go, and you wanted him to stay, you would dis- cuss it, was that not your testimony? A. It would if it ever came up We would discuss it, sure. 157 Q If it ever So now you are saying that it never came up? A. No. The overkill indulged in by Dennis and Thompson is also a factor seriously adverse to their case. Thus, the very first criticism made in their December 5 memoran- dum to the Union was that McArthur "stood around too much." Under questioning by me about the frequency of such misconduct by McArthur, however, Dennis said, "It wasn't real frequent, but he shouldn't-he did it quite-you know, he did it some, and, you know, he knew he shouldn't `cause he's there for eight hours of work for eight hours of pay." Similarly, the second reason given in the memoran- dum-"He missed too much work on his own"-does not really fit the facts as known to Dennis and Thomp- son. McArthur testified that he was absent from work 9- 1/2 days during his 4-month employment, due to a death in the family and a serious accident involving his son.8 At the hearing, when Dennis was asked by his counsel if McArthur had missed "too much work for whatever reason," he replied, "Yes, for legitimate reasons, but- " Obviously, Dennis understood that McArthur's absences were beyond his control; it is suspicious embroidery to indicate, as the memorandum does, that McArthur was somehow to blame for absences known to be caused by uncontrollable forces. Finally, the reliability of the testimony of Thompson was, I thought, marred by his response to an old, but sometimes effective, coutroom strategem. Counsel for the General Counsel asked Dennis whether he had dis- cussed his proposed testimony with anyone. Dennis re- plied that he had talked with Respondent's counsel and "I have got together with Ron before on some of the event [sic] that went on" To pin this down, counsel asked, and Dennis answered, as follows: Q All right. I'll put it this way: Apparently, before today , you had a discussion with Ron Thompson in the not too distant past-Yesterday, day before, a couple of days ago-you and he talked about the fact that you were going to come down here to a hearing . Is that right? A. Yes Dennis then went on to agree that they had discussed the McArthur case to "refresh [their] memory about things that had happened concerning the hearing today " He later said that they spoke in order to "try and get our memories jogged back to certain events." When the same question was put to Thompson, the next witness, he answered, "No, sir" to the question, "Did you - have you discussed recently the events re- lating to Mr. McArthur with anybody except [Respond- ent's counsel]," and, in answer to a probing question, af- firmed that he was "sure about that." But then, when pressed specifically as to any such possible discussions s Bilz testified that the records showed an absence of 13 days, in rebut- tal, McArthur said that the other 3-1/2 days were "rain-out" days when none of the employees could work 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Dennis, Thompson replied, "A long time ago, maybe," going on to guess, "A month, two months Something like that, maybe." It seems most likely to me that when Dennis acqui- esced in the question as to whether he had not in the .,not too distant" past-"yesterday, day before, a couple of days ago"-talked to Thompson about the case, he fully comprehended the question. For Thompson to thereafter first evade the same question and then put the tardily-admitted discussion at some time in the realm of a month or two in the pasts plainly casts doubt upon Thompson's veracity In addition, while Dennis was will- ing to agree that the purpose of the discussion was to "refresh .. . memory," Thompson resisted this analysis, at first saying it was "not to refresh memories," but then conceding that it was "more or less" in "preparation for this hearing." In short, for the reasons given above, I find it very dif- ficult to accept the testimony of Dennis and Thompson that McArthur had been an unsatisfactory employee whose job had been hanging by the thread of his stew- ardship, a thread which he himself severed by inviting Dennis to release him. I think it more probable that McArthur was regarded as a competent employee whose work, as he testified, Respondent seemed to like "fine," and that it was only after the grievance was filed on No- vember 22 that Respondent became unhappy with McArthur's execution of his duties 10 In so concluding, I have taken into account my personal impression of McArthur, his own sense of how the job and his rela- tionship with Dennis had been going, and the apparent fact that (there is no evidence to the contrary) he had worked successfully as a laborer for 21 years or more." 9 In later testimony , he accepted a proposed time of the discussion as "about two months ago " 10 I was also impressed by the demeanor of employee Welker, a labor- er for 12 years, who characterized McArthur as a "fine worker " Al- though Welker only worked for Respondent during McArthur 's final week of employment, and was not with him "constantly," it seems to me quite possible to gain a quick and accurate impression of a laborer's com- petence and industriousness 11 I have not considered , however, the testimony of former employee Wheadon that just before McArthur's discharge Dennis had told him that he could "make it hard on Luther if he had to, to make him quit " As the transcript shows, Wheadon was, to use his own word, "confused" about this conversation, and his testimony does not scan very well I had an impression that there may have been some basis in truth to Wheadon's testimony, and that his "confusion" might be attributable to natural limi- tations rather than to mendacity, but overall I believe that it would not be appropriate to give credence to Wheadon 's testimony on this point Accordingly, I further recommend dismissal of the 8(a)(l) allegation based on such testimony I have, on the other hand, given consideration to the testimony of Wheadon , elicited on cross-examination , that Dennis told him "around December 1, 1983, that he was going to let Luther McArthur go because "he was standing around too much and couldn't do the work " No con- text was given for this statement It would not supnse me, however, if Dennis had attempted to offer to other employees reasons of a legitimate nature for terminating McArthur The same sort of comment applies to some textually ambiguous testimony by Welker, which could have re- ferred to an effort made by Dennis either to explain to Welker the No- vember 21 layoff or the discharge of McArthur-"And he said the reason why they laid Luther off was because he couldn't-he didn't know enough about the job to keep the carpenters and everything going." Indeed, even if I were to accept Respondent's claim that it had stifled a desire to terminate McArthur until early December, when he told Dennis to let him go if his work was thought to be unsatisfactory, I would find it most difficult to believe that the operative cause of Re- spondent's change of attitude was not in fact the filing of the grievance. If we assume, as Dennis and Thompson ask us to, that they were willing to tolerate for so long a time "one of the poorest laborers" Respondent had ever employed because of some shadowy and undocumented threat arising from his position as steward over a handful of laborers, it is hard to conceive that these cowardly lions found new heart in the simple fact that McArthur had angrily told Dennis that he should discharge him if his work was not acceptable. McArthur was at that point no less a steward than he had ever been, and his termina- tion represented no less of a potential threat of being "hassle[d]" (Thompson's word) by the Union. Yet at the end of November, Dennis and Thompson suddenly found themselves capable of taking a stance which they had allegedly not dared previously. In my view, the most probable distinguishing factor would have been McArthur's filing of his gnevance on November 22.1 2 In order to prevail in a case such as this one, the Gen- eral Counsel must establish that protected Section 7 ac- tivity was a "motivating factor" in the decision to dis- charge. NLRB Y. Transportation Management Corp., 462 U.S. 393 (1983). According to Section 10(c) of the Act, the ultimate conclusion that an unfair labor practice was committed must be proved by a "preponderance of the testimony taken." That requirement is not an onerous one; the Court of Appeals for the Sixth Circuit had de- fined the "preponderance" test to mean "more likely so than not so." Jim Causley Pontiac v. NLRB, 675 F 2d 125, 127 (6th Cir. 1982). Having hefted all the evidence, I think it "more likely so than not so" that McArthur's discharge was prompted by his filing of the grievance. McArthur struck me as most believable; Dennis and Thompson, for the reasons given, less so. The fact that an employer's witnesses offer doubtful, inconsistent, and otherwise seemingly un- trustworthy testimony properly raises an adverse infer- ence about the legitimacy of their motivation. NLRB v. Griggs Equipment, 307 F.2d 275, 278 (3d Cir 1962). The timing of the discharge-4 months after McArthur's em- ployment began, but only 10 days after the grievance was filed-is a plainly suspicious feature. Equally doubt- ful is the claim that Respondent's job-like willingness to suffer intolerable workmanship for fear of union retalia- tion was abruptly dissipated by nothing more than McArthur's angry retort on November 30. McArthur's credited testimony that Dennis began his admonition on November 30 by referring to the fact that McArthur was 12 At the hearing , Dennis stated that he was not "upset or mad or nothing" about the grievance, but he did think it was a "kind of stupid" thing for McArthur to do The claim made at hearing and again on brief that "Gateway treated the statement as a request from McArthur for a layoff" scarcely bears discussion Respondent certainly knew that McArthur did want to work and did not want to be fired, indeed, the call to Bilz for approval speaks volumes So does the December 5 memorandum, which begins "I let the Labor Steward go" because of described deficiencies GATEWAY CONCRETE SERVICES a "union steward" clearly indicates that the grievance was very much on Dennis' mind, and that McArthur had not exactly ingratiated himself with Dennis by grieving the layoff. While Respondent brought out at hearing that no grievances had ever been filed against it in the past, the almost immediate discharge of the first employee who did take such action does not seem to render that fact particularly helpful to Respondent. Thus, a survey of the whole record, and my impres- sion of the witnesses, lead me to conclude that the prin- cipal moving cause of the termination of McArthur was his filing of the grievance. Even if I were to find that this was a so-called "dual motive" case, rather than a so- called "pretext" case, see Limestone Apparel Corp., 255 NLRB 722 (1981), and accordingly allow Respondent the opportunity to demonstrate that it would have dis- charged McArthur even despite his protective activity, I would reach no different result. Grieving pursuant to a collective-bargaining agree- ment is considered protected concerted activity "[a]s long as the grievance is based on an honest and reasona- ble belief that a right has been violated," NLRB v. City Disposal Systems, 104 S.Ct. 1505, 1516 (1984). There is no reason to find that the foregoing condition was not satis- fied here, and on brief, in noting City Disposal Systems, Respondent does not argue otherwise.13 I therefore conclude that the General Counsel has es- tablished, by a preponderance of the evidence, that the protected activity of grieving was a "motivating factor" in the decision to terminate, NLRB v. Transportation Management Corp., supra, 462 U.S. 393 (1983), that the evidence does not demonstrate that the decision would have been made in the absence of such activity; and that Respondent violated Section 8(a)(3) and (1) by discharg- ing Luther McArthur on December 2, 1983. I would not find, however, that Respondent violated the Act, as the complaint alleges, by deliberately assign- ing more onerous work to McArthur. This asserted vio- lation was not very well developed on the record, but it is hard to imagine that Dennis seriously intended to have McArthur perform by himself a piece of work which ul- timately required the point efforts of four men. There is no testimony that Dennis made any attempt to interfere with McArthur's solicitation of the assistance of the other employees or indicated to McArthur that he should not seek such help. I shall therefore recommend the dismissal of this allegation. The only allegation not yet considered states that on or about December 1, Dennis "threatened to discharge employees because they filed grievances against the Re- spondent." I assume that this claim may be based on Wheadon's testimony, although I can find nothing so specific therein. Since, as indicated, Wheadon's testimony displays an inherent weakness, I would not rely on it for ' Sec, 4 of art XVI (steward) of the bargaining agreement states, in pertinent part, "In the event of a general lay-off by the Employer for any reason, the Steward shall be the first employee recalled, unless the Em- ployer needs an employee who possesses specific skills that a Steward cannot perform " It was not unreasonable for McArthur to view the No- vember 21 layoff of laborers as a "general layoff' with the retention of Dennis as a "recall" to which McArthur was contractually entitled 159 any such finding even if the evidence were more explic- it.14 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. By discharging Luther McArthur on December 2, 1983, Respondent violated Section 8(a)(3) and (1) of the Act. 3. The foregoing unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Luther McArthur on December 3, 1983, I shall recom- mend that Respondent be required to offer him immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respond- ent's offer of reinstatement, less net earnings during such period The backpay provided herein shall be computed on a basis of calendar quarters in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend posting of the traditional no- tices and other customary relief. 14 In view of these conclusions, I need not reach the issues raised by Respondent's answer regarding whether Dennis was a "supervisor" or an "agent" of Respondent for purposes of Sec 8(a)(1) In the interest of completeness, however, I note that Dennis should very probably be con- sidered at least an agent (and perhaps a supervisor) Dennis testified that at the start of each day, he would "tell the men to go where, to do what," and would thereafter "direct [the] work" of the laborers Sometimes this involved moving from one work location to others When he independently perceived that additional laborers were needed, Dennis would order them from the hiring hall, without prior ap- proval from Thompson, and the new employees would report to him Dennis notified the employees of layoffs He participated in the grievance meeting concerning the November 21 layoff of McArthur, and he testi- fied that he believed he was present because he was the "labor foreman " Together with Thompson, he signed, as "Labor Foreman," the explana- tory memorandum to the Union regarding McArthur's layoff, which states, inter alga, that McArthur's "work performance was not suitable for my Labor Foreman or myself" Dennis earned $3 per hour more than the rank-and-file laborers While "Labor Foremen" were, according to the bargaining agreement, included in the bargaining unit and were also explicitly denied the "au- thority to hire or discharge," and while the evidence shows that Dennis performed manual labor, it nonetheless clearly appears that Dennis was at least held out by Respondent as an agent whose statements might well be attributed to Respondent Helena Laboratories Corp v NLRB, 557 F 2d 1183, 1187 (5th Cir 1977) RAHCO Inc, 265 NLRB 235, 248 (1982), B-P Custom Building Products, 251 NLRB 1337, 1338 (1980) 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edis ORDER The Respondent, Gateway Concrete Forming Serv- ices, Inc, Miamitown , Ohio, its officers , agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees in regard to their tenure of employment, or other terms and conditions of employment , because they file grievances pursuant to a collective-bargaining agree- ment or otherwise exercise the rights guaranteed employ- ees by Section 7 of the Act. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act. (a) Offer Luther McArthur, immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position , without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (b) Preserve and, on request , make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Miamitown, Ohio facility copies of the attached notice marked "Appendix." 16 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by Respondent's authorized representative , shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Remove from its files any reference to the unlaw- ful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 15 If no exceptions are filed as provided by Sec 102 46 of the Board 's 16 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall , as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur - of the United States Court of Appeals Enforcing an Order of the Nation- poses al Labor Relations Board "