Macdonald Miller Co.

MACDONALD MILLER CO. MacDonald Miller Company and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 32. Case 19-CA-16489 25 November 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 16 August 1985 Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel filled exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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,2 findings, and conclusions3 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I We grant the General Counsel's unopposed motion to correct the record 2 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- live 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. 11951). We have carefully examined the record and find no basis for re- versing the findings. 3 Member Babson adopts the judge's conclusion that the Respondent's conduct was not inherently destructive Accordingly, he finds it unneces- sary to pass on the judge's discussion of an employer's burdens under JVLRB v Great Dane Trailers, 388 U.S 26 (1967), and NLRB v. Fleetwood Trailer Co., 389 U S. 375 (1967), in cases involving inherently destructive conduct Ronald J. Knox and George I. Hamano, for the General Counsel. Judd H. Lees (Williams, Lanza, Kastner & Gibbs), of Bellevue, Washington, for the Respondent. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me at Seattle, Washington, on De- cember 12 and 13, 1984, and January 22 and 23, 1985, pursuant to a complaint and notice of hearing issued March 29, 1984, by the Regional Director for Region 19 of the National Labor Relations Board. The case was previously before the Board on my granting Respond- ent's Motion for Summary Judgment; it was subsequently 701 remanded for hearing on the merits. The complaint is based on a charge filed by United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 32 (the Union or Local 32) on February 3, 1984. The com- plaint alleges that MacDonald Miller Company (Re- spondent) has engaged in certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act. Issues The principal issue is whether or not Respondent dis- charged two individuals, Raymond Atkinson and Ken- neth Dulaney, for reasons prohibited by the Act, i.e., be- cause they were the subjects of a grievance filed by the Union, because of their union steward status and/or ac- tivities, or because of their other protected activities. A threshold issue with respect to Atkinson is whether or not he was a supervisor within the meaning of Section 2(11) of the Act at the time he was discharged. FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS Respondent admits it is a State of Washington corpo- ration headquartered in Seattle where it is engaged in the building and construction industry. It further admits that during the past 12 months its gross volume of sales of goods and services exceeded $500,000 and that its inflow and outflow both exceeded $50,000. It admits, therefore, and I find, that it is and has been at all maternal times an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties have stipulated, and I find, that the Union is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Partin pants Respondent is a large mechanical contractor perform- ing both construction and maintenance work in the Seat- tle area. It has collective-bargaining agreements with various building trades unions, including the Electrical Workers, the Sheet Metal Workers, the Laborers, and the Charging Party, Pipefitters Local 32. Apparently most of its business is ordinary mechanical contracting, i.e., the installation of pipes, air ducts, and electrical wiring. One aspect of its business is the installation of heating and air-conditioning equipment in buildings under construction. An adjunct is the business of main- taining and servicing the forced-air equipment after its installation . To facilitate this operation Respondent has divided its business into departments which, for our pur- poses, will be described as the construction department and the refrigeration department. Although not particu- larly germane here, the construction department is divid- ed into plumbing, pipefitting, sheet metal, and electrical divisions. The refrigeration department principally per- forms repair and maintenance of existing heating/air-con- 277 NLRB No. 79 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ditioning units. However, it, too, is engaged in construc- tion in the sense that some of its people have been regu- larly assigned to install and connect forced air units in buildings under construction. Thus, although these people have been assigned to the refrigeration depart- ment, they did traditional construction work as well as service and maintenance work. For purposes of conven- ience the construction work performed by the refrigera- tion department personnel will be referred to as "refer construction." In the Seattle area, Respondent has gener- ally assigned its refer construction work to two people, the alleged discriminatees, Atkinson and Dulaney. How- ever, on occasion, others have been assigned as well. The refrigeration department employs approximately 20 people, although the record does not make clear the geo- graphical assignment of these individuals. Apparently some are assigned to other cities such as Tacoma or Yakima and are stationed there. The refrigeration department employees in greater Se- attle are represented by the Union. The Union also rep- resents Respondent's pipefitters who perform traditional plumbing and pipefitting construction work. These are separate bargaining units and in the past have been cov- ered by separate collective-bargaining contracts. The re- frigeration department employees, i.e., refrigeration me- chanics including those engaged in refer construction, were covered until 1982 by a collective-bargaining con- tract known as the refrigeration agreement. Plumbers and pipefitters were covered by another agreement known as the pipefitters contract. In addition to those two contracts with Local 32, Respondent also has a col- lective-bargaining contract with the Union's parent Inter- national Union. That agreement is known as the National Agreement. It had been Respondent's practice during the life of the refrigeration agreement to pay those employ- ees assigned to refer construction work the normal rate under that agreement . So long as that agreement was viable, the Union did not disagree with that practice for it was expressly permitted. For reasons not shown in the record, the most recent refrigeration agreement was allowed to expire in 1982 and has not been renegotiated. However, the Union thereafter did negotiate a new master refrigeration agree- ment with other employers. Because it could not reach an agreement Respondent chose to invoke its right under the National Agreement to incorporate certain terms of the master refrigeration agreement and to apply them to its refrigeration mechanics. From Respondent's perspec- tive this permitted it to pay the refrigeration mechanics the current union scale and to continue its practice of as- signing mechanics to refer construction work paying them the refrigeration mechanics scale in accordance with its past practice. As will be seen, the Union did not view Respondent's analysis as appropriate. Respondent's chief executive officer is Vice President and Part-Owner Virgil Timmerman. Timmerman is the individual who negotiates the collective-bargaining con- tracts with various unions. Reporting to Timmerman is Production Manager Steve Lovely. Although there has since been a reorganization at the time of the incident in question, Lovely was responsible for the productivity of all the building trades as well as the refrigeration depart- ment. The refrigeration department itself was under the direction of Bob Estes, the field service supervisor. Until his transfer to the sales department in November 1983, Estes oversaw both the service and construction divi- sions of the refrigeration department. In March 1983, some 8 months before his transfer to sales, with the ap- proval of higher management, Estes promoted three re- frigeration mechanics to foremen. Two of these, Lyle Schramm and Gary Kuhlman, became field service fore- men; the third, Ray Atkinson, one of the alleged discri- minatees, became construction foremen. Later, in No- vember, upon Estes' departure, Schramm replaced Estes. It was Schramm who was the head of the department in January 1984 when the discharges in question occurred. The union officials involved are Floyd Sexton, the business manager/financial secretary, and John Fitzger- ald, business representative. Since 1978, shortly after he was hired, Atkinson had been the Union's shop steward for the refrigeration department. In late November or early December 1983, after Atkinson had become con- struction foreman, Dulaney was elected shop steward at a meeting called by Atkinson. There is a dispute with re- spect to whether or not Dulaney was appropriately des- ignated steward and whether Respondent knew he had official steward status. B. Ray Atkinson Atkinson testified that he was hired in May 1978 as a service mechanic although Business Representative Fitz- gerald says that the Union's records show that he was dispatched as a foreman. It is clear that, whatever his status, at some point Atkinson was paid the foreman rate even before he was made a foreman based upon Re- spondent's decision to pay a premium in order to keep qualified service mechanics from leaving. Atkinson de- scribed his duties as repairing heating/air-conditioning units, including what he describes as warranty work. He says he also performed some startup, some new construc- tion, and some remodeling work, all of which Respond- ent considers refer construction. He testified that he learned he had been made refriger- ation construction foreman in March 1983 by looking at a company roster. He says no one actually approached him about being a foreman until September when Lovely asked him if he would like to be the foreman. Later he says Estes also asked him. He remembers Estes asking if there would be a conflict of interest with him being both foreman and shop steward. He replied there would not. He says in September Lovely gave him a written docu- ment describing his duties. He claims, however, that his responsibilities did not actually change except that in November he began to attend meetings with the con- struction department. He says when he was made a fore- man he did not get an office like other foremen. Howev- er, when listing the foremen who had offices, he listed individuals who were superintendents of various trades. He did not describe whether his alleged co-foremen Schramm, Kuhlman, or even Estes had offices. He testi- fied that, prior to his promotion, jobs were assigned through the company dispatcher and afterwards jobs continued to come from the dispatcher. He did concede MACDONALD MILLER CO. that new construction jobs came out of the supervisors meetings which he was attending. Atkinson asserts he did not assign anybody to con- struction work, although he did recommend Dulaney to perform the Bellevue Square job in February 1983. He says that occurred well before he became foreman. He admits, however, that he went to the Bellevue Square job on a weekly basis to check on its progress. It was a large mall project which was still in progress in 1985 during the course of this hearing. Nonetheless, Atkinson denies supervising employees, saying he had no hire and fire authority, no ability to discipline employees, and no authority to grant time off. Moreover, he had the same hours and same lunch periods as anyone else. Atkinson testified that he began performing refer con- struction work in late 1982 and throughout 1983 even though he was still a service mechanic. He says he basi- cally did that work by himself but others occasionally helped, including Dulaney. He remembers Dulaney worked the Bellevue Square job by himself while he worked by himself on the Puget Power Company project. On cross-examination, Atkinson was shown Respond- ent's Exhibit I which is a handwritten job description for the three foremen who were promoted in March 1983. He conceded that Estes "could have given the document to him in March but couldn't recall." He says it is "even possible" that he received the document along with the roster sometime in early 1983.1 According to Department Head Estes, Atkinson had performed "primarily" construction work for some time. Estes testified that he first spoke to Atkinson about be- coming a foreman in February 1983 and subsequently wrote Respondent's Exhibit 1. He showed it to the three individuals involved, including Atkinson, to ask for their input. He specifically remembers Atkinson agreeing to it as "okay." During their discussion he remembers telling Atkinson that one of his duties would be to work with him to maintain manpower levels and to let him know if additional crew was needed. Otherwise, assignments would go through the dispatcher. Estes says a couple of days later Atkinson confirmed he would take the job. Estes points out that because Atkinson was already being paid the foreman scale, no wage increase was given him. He said there were at least seven or eight mechanics then receiving the premium rate and about that time Re- spondent reduced their rate to journeyman scale. It con- tinued to give the foreman rate to the three who had just been made foremen. Estes also testified that in March he prepared a memo stating that Schramm, Kuhlman, and Atkinson had been made foremen and distributed that document to the crew with their paychecks. He also announced their promo- tion to the crew during a crew meeting. He told them that in construction "Ray was the boss." He says Atkin- son had the authority to tell the dispatcher who he wanted and where and when he wanted him. He notes that ordinary journeymen would occasionally ask the dispatcher for additional help if they needed it, but At- ' G C Exh. 17 is a similar but typewritten document which Atkinson received from Lovely in September 703 kttson, unlike the journeymen, could require it, not simply request it. Estes says Atkinson began attending the construction foremen meetings in March 1983, not November. He says they attended the meetings together for about 6 to 8 weeks while Atkinson familiarized him- self with what was required. After Atkinson became ac- climated, Estes ceased going to the meetings. Estes notes that neither Schramm nor Kulhman attended because they were service foremen, not construction. At these meetings, each construction project was reviewed. They examined the hours spent as well as the hours remaining. Estes says this was the means by which the construction people in the refrigeration department learned of new construction projects. He states it was the construction foreman's duties to do blueprint takeoffs-i.e., determine the amounts of pipe, fittings, etc. According to Estes the job necessarily involved some purchasing and that it was up to the foreman to decide the amount of manpower necessary, as well as to establish a starting date to co- ordinate with the construction trades. Atkinson agrees that his duties included ordering mate- rial, although he limited that function to small jobs, set- ting it up, and coordinating it. He says purchasing was mainly performed by the salesman, but agrees he did blueprint takeoffs. Respondent's Exhibit 1 says that one of his duties was to order cranes. Estes says Atkinson did so. Atkinson denied ordering any cranes, yet one of his work orders demonstrates that at the very least he ar- ranged the use of a crane from a contractor already on the jobsite. With respect- to his seeking men from dis- patch, Atkinson implies that he did not issue directives, but made requests. He agrees that he has asked for the assistance of specific individuals for construction work. These included Dulaney and another individual named Culver. He says, however, that sometimes the dispatcher did not send him the person he requested. At some point, apparently late in November, Union Business Representative Fitzgerald decided that a new steward was required. He testified: "Atkinson, being placed in supervision as a foreman would not be allowed to be shop steward." Indeed, there is a contractual provi- sion in the national agreement so stating. Accordingly, Fitzgerald directed Atkinson to elect a new steward. With respect to Atkinson's alleged supervisory status, as set forth by the foregoing facts, I conclude that he was a statutory supervisor. There are several consider- ations. First, there is the credibility conflict to resolve between Atkinson and Estes; the documentary evidence is helpful here. I was most unimpressed with Atkinson's hedging when describing his receipt or awareness of Re- spondent's Exhibit 1. Though denying its receipt, he left open the "possibility" that Estes had given it to him. In the final analysis, his version concedes that the document was probably shown him in March although his words appear to deny it. That suggests that Atkinson is shading the facts regarding his supervisory authority and trying to cast himself most favorably as lacking supervisory au- thority. It is true that he did not engage in daily `hands on" authority over other individuals assigned to refer construction work. Nonetheless, it is clear that beginning in early 1983 he virtually assigned Dulaney to the Belle- 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vue Square job and thereafter, on a weekly basis, he went to the site to observe the work. Atkinson says he did so because he had lined the job out, but as he had been assigned to the Puget Power site, he could not complete it. Consequently, he felt responsible for Belle- vue Square and his jobsite visits were simply a fulfill- ment of his own sense of responsibility. Yet, his lining the job out is fully consistent with his duties as a foreman as is his weekly oversight of Dulan- ey's work there. Furthermore, it is likely that Atkinson was observing that job so he could report its progress in the weekly construction meetings he was supposed to be attending. I recognize that he denied attending any such meetings until November, some 8 months later, but do not believe he can be credited on the point. Estes and Lovely both testified that Atkinson began attending those meetings shortly after he became the construction foreman and both were in a position to know. Furthermore, Atkinson retained the foremen wage when the other journeymen who were not made foremen lost their premium pay. Accordingly there is a wage dif- ferential between Atkinson and other journeymen. It is true that hire-and-fire authority remained with Estes, yet Estes specifically told Atkinson that he was under a duty to provide Estes with manpower information so that hire and fire decisions could be made. Thus, Atkinson clearly had the authority to recommend the hire or the dis- charge (or the transfer) of personnel within his area of responsibility. The need for the exercise of that responsi- bility was slim and probably not much used. Estes does recall a situation where he says he decided not to hire somebody from the hiring hall based on Atkinson's rec- ommendation; Atkinson denied it, saying he did not know the skills of the employees in the hall well enough to make such a recommendation. Even so, the authority existed. Furthermore, Atkinson concededly had job prepara- tion responsibility and was the Respondent's representa- tive on those jobsites for the purpose of dealing with the contractor and/or the customer. He was fully capable of and knew he could exercise independent judgment in various areas. These included the purchase of material and the ordering of various types of equipment. His self- effacement here is most suspect as his own work order reflected that he arranged for the use of a crane almost immediately after he denied ever having ordered such a piece of equipment. It may be true that he did not have to issue a purchase order or spend great amounts of money to obtain the use of that crane but, if nothing else, the incident demonstrates that he had the independent authority to commit certain of Respondent's credit for such equipment. Presumably the contractor who had the crane on site did not provide its services to Respondent out of a sense of magnanimity. The incident also demonstrates another facet of the foreman's responsibility as set forth in Respondent's Ex- hibit 1. One of the construction foreman's duties was to coordinate with the other trades. When Atkinson ar- ranged for the use of the crane to set the piece of equip- ment on the job in question, he was no doubt exercising that responsibility. Finally, there is Fitzgerald's admission that Atkinson was a supervisor. He knew that it was a conflict of inter- est, whether it was a breach of the contract or not, for Atkinson to be both shop steward and foreman at the same time. To Fitzgerald, being a foreman was tanta- mount to being a statutory supervisor even if it was a bargaining unit described job. Thus, on learning that At- kinson had became foreman, he directed Atkinson to re- linquish his stewardship duties. Accordingly, based on all of the foregoing circum- stances, I conclude that Atkinson was a supervisor and had been since March 1983. Even Atkinson concedes that he acceded to the job as of November 1983. As will be seen shortly, that was well before the discharge of January 25, 1984, which is alleged to be unlawful. C. The Grievance As noted previously, during 1983 Respondent contin- ued to operate its refrigeration department in the absence of a refrigeration agreement. It believed the National Agreement permitted it to incorporate the wages and hours of the area refrigeration agreement. This resulted in some discussions between Respondent's vice president Timmerman and Union Business Manager Sexton. Ac- cording to Timmerman, Sexton's position regarding the applicability of the refrigeration agreement changed from time to time. In late 1982 and early 1983, according to Timmerman, Sexton was demanding that Respondent sign the local master refrigeration agreement, asserting that the National Agreement did not apply in Local 32's jurisdiction. In September 1983, according to Timmer- man, Sexton said Respondent could use the National Agreement and did not have to sign the local refrigera- tion agreement. Sexton partially agrees, but adds in early 1983 there was a meeting at Respondent's office which an Interna- tional representative attended. Sexton agrees that he had complained to the International Union about Respond- ent's use of the National Agreement. He claims Timmer- man agreed during this discussion to interpret it the way the International wished him to. Sexton testified that the meeting ended with an agreement that the National Agreement would cover service and maintenance but not new construction. At that time, he says, Timmerman agreed to pay the refrigeration mechanics performing refer construction the "MCA rate," i.e., the pipefitters rate. Timmerman agrees that he did say that he would pay the rate the International decided was appropriate, but says he has never actually agreed to pay the refrigeration mechanics the pipefitters rate.2 There is no evidence in this record that the International ever made a ruling de- ciding the question as it applied to the refer construction work. In any event, Sexton determined, in the absence of a refrigeration agreement, that employees performing refer construction work should be paid the pipefitters rate, for it was construction work as described by the pipefitters E Even his later decision to pay that rate was not an "agreement", in- stead it was intended as a temporary resolution pending the grievance MACDONALD MILLER CO. contract.3 Supporting Sexton's contention was his aware- ness that both individuals performing the refer construc- tion work, Atkinson and Dulaney, had been dispatched as "building trades qualified" refrigeration mechanics. Under the Union's parlance this is a significant skill factor because they are to be differentiated from refriger- ation mechanics who are only "metal trades qualified." Furthermore, at all times Business Representative Fitz- gerald has been operating under the belief that refer con- struction work should be performed by pipefitters, not refrigeration mechanics. Indeed, he first thought it was improper to assign that work to refrigeration mechanics even during the life of the refrigeration contract. He tes- tified that in the summer of 1982 he saw refrigeration mechanics doing refer construction work and, although he later learned that the contract permitted it, nonethe- less regarded it as "unusual." Later, during a discussion with me, he described the practice as "unexpected " At one point, however, he denied he had ever told Re- spondent it "could" use pipefitters to do the work. On July 18, 1983, the Union mailed a memorandum to all its members working for Respondent as journeymen refrigeration mechanics. That memorandum recited the pipefitters scale noting that it was $1.57 per hour higher than the refrigeration rate. It concluded by asking each employee to keep track of time spent working on refer construction, the dates of such work, and the name and address of each job. At the end of each month, the member was to provide the information to Fitzgerald. Atkinson and Dulaney received it; so did Schramm, then both a union member and a service foreman. Although Atkinson was shop steward at the time, he made no effort to keep the records as requested nor did he report any problems to Fitzgerald. Dulaney testified, however, that sometime in August he was working at the Bellevue Square jobsite when he encountered Fitz- gerald. He told Fitzgerald that he was not getting any extra money on refer construction work. Later, apparent- ly in mid-November after a "prenegotiation" union meet- ing,4 lie spoke to both Fitzgerald and Sexton about the problem. They asked if he had received the proper pay. He replied he had not. He also reported "a statement Timmerman had allegedly made at a staff meeting to the effect that he would not pay the higher rate as it was competitively disadvantageous to do so. Both of these conversations occurred prior to Dulaney being elected shop steward. By letter dated November 23, 1983, Sexton hand deliv- ered what he characterized as a "request for a step 2 grievance meeting" in accordance with article VII of the pipefitters contract. He asserted that Respondent had violated articles IX and XI by failing to pay the proper wages and fringes on new construction work. 3 Even if Sexton is correct regarding the nonapplicability of the Na- tional Agreement to the refer construction work, it does not necessarily follow that Respondent had lost its right to continue assigning that work to service mechanics Sec 8(d) of the Act requires both parties to main- tain the same working conditions even after a contract's expiration, until a new agreement is reached or an impasse occurs The Union's dogged insistence on applying the pipefitters contract to this work may well have been a bad-faith act That, however, is unclear and in any event not before me " The area pipefitters contract was about to be re-negotiated 705 The grievance failed to name the affected employees and skipped step 1, which required direct discussion be- tween the aggrieved employee and his immediate super- visor. As it was brought under the pipefitters agreement, Timmerman did not immediately recognize it as having anything to do with refer construction. His firm has never considered that work to be pipefitters work. His immediate response was to discuss the grievance with Gordon Foy, the pipefitter superintendent. Their investi- gation failed to disclose any wage complaints by pipefit- ters. Also, the grievance did not describe the work in- volved and contained no reference to refrigeration work. Timmerman testified that the National Agreement, cov- ering the refrigeration work, has a different grievance procedure and does not incorporate the terms of the pipefitters contract. From his point of view he was total- ly in the dark about the purpose of the grievance. Sometime later, Sexton telephoned him about the grievance. Timmerman insisted Sexton start the griev- ance at step 1 as required by the contract, but Sexton re- sponded that he had the authority to skip step 1 and go straight to step 2. They had an argument over whether that was so and the two never met over the grievance: In fact, Sexton never testified that the nature of the grievance was actually discussed in the first telephone conversation. Apparently, however, there were further conversations between Sexton and Timmerman not spe- cifically described in the record. According to Timmer- man, beginning in June 1983 and continuing until the January 25, 1984 discharges, he had at least a dozen con- versations with Sexton about refer construction work., Timmerman says that Sexton has said that the construc- tion work in question should be paid according to the pipefitters agreement. Some of these conversatons oc- curred after the grievance was filed. Ultimately Timmerman handwrote some memos to subordinates Lovely and Estes which he says constitute his recollection of what Sexton wanted. In one, he stated Local 32 did not want Respondent to use refrigeration mechanics on refer construction work. He described the dispute with the Union and then described what he char- acterized as a temporary operating plan while he at- tempted to work out the problem. He said to Lovely, "To show good faith please use plumbers and fitters to do this work until I get it resolved." He noted that the change would mean Respondent would have to cut back on the refrigeration crew saying, "That's what Local 32 wants." He went on to describe his own view of the proper interpretation of the contract, concluding the memo by repeating his directive that plumbers and pipe- fitters be used on refer construction until the matter was resolved. He ended stating, "You will have to let the refer man go that's doing this work now."5 D. The Discharges On January 25 Timmerman issued a typewritten memorandum (G.C. Exh. 19) to Lovely which crystal-, a The foregoing material is found in G C Exh 22, a three-page hand- written document. The first two pages consist of the above-described di- rect,ve The third page seems to be document drafted somewhat earlier and contextually is not part of the first two pages 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lized what had been said before. After noting his exten- sive involvement in negotiating the new area pipefitters agreement Timmerman said due to that effort he had been unable to resolve the refer construction grievance. Because he was scheduled to be out of town from Janu- ary 30 to March 5, and would be unable to handle the problem himself, he directed that the work be done by pipefitters under Foy's direction. Previously, Lovely and the new refrigeration department foreman, Schramm 6 had investigated whether Foy's crew was qualified to perform the work and had determined that it was. Earlier Schramm had been alerted that the refer con- struction work might have to be transferred. On January 8 he had made some notes to himself regarding the desir- ability of retaining Atkinson. This included a list of he what perceived to be Atkinson's shortcomings. These in- cluded Atkinson's failure to advise dispatch of his loca- tion, checking in and out from home, questioning if he was putting in a full 8-hour day, some public relations problems which had indirectly come to Schramm's atten- tion, and finally some observations with respect to Atkin- son's ability to get along with the rest of the crew. A final observation was, "Ray makes comments to fellow employees that M&M [Respondent] is anti-union, imply- ing mistrust by using negative comments to induce mis- trust." There is no evidence that this document received any scrutiny by Schramm's superiors. Indeed, he says he gave it to no one. However, he agrees that the contents of the memo played a role in his deciding that it would be better to let Atkinson go. He admits that the last remark, Atkinson's belief that Respondent was antiunion, was "a consideration." According to Schramm, it was he who "suggested" that Atkinson and Dulaney be fired and eventually he was the one who did terminate them. Clearly, however, Timmerman and Lovely participated. On the afternoon of January 25, Schramm separately discharged both Atkinson and Dulaney. In each case he gave them a copy of General Counsel's Exhibit 19 and told them they were being released, giving them a termi- nation slip along with their final checks. Atkinson asked Schramm if there were any problems with his work. Schramm replied there were not. He also supposedly re- plied that he had been instructed not to say anything fur- ther. Atkinson said he asked Schramm if he could per- form service work (apparently admitting that his work was primarily refer construction) but Schramm replied he could not. Atkinson's termination slip simply states that he had been terminated by Timmerman. Its "for cause" box was checked. There is no suggestion on the slip that he was ineligible for rehire. Schramm testified, without contra- diction, that a discharge for cause did not render one in- eligible for rehire. Dulaney's exit interview was similar. Schramm gave him a copy of Timmerman's memo regarding the reas- signment of work. Dulaney says he asked that the griev- ance was about and Schramm replied that Dulaney knew as much about it as he did. Dulaney then asked if the dis- B Estes had been transferred to manage the sales department charge was permanent or until the grievance was worked out. Schramm said it was permanent. He says he asked Schramm regarding the percentage of construction work which he had actually performed but Schramm re- fused to discuss it. He also asked Schramm if something was wrong with his work and reports Schramm as reply- ing he had been told to say as little as possible, yet agreeing that Dulaney was a "good mechanic." Dulaney's termination slip, like Atkinson's, had the "for cause" box checked. Dulaney says he asked for an explanation of why that box had been checked asserting that its meaning was unclear. As a result, Schramm wrote in the explanation section of the slip: "per griev- ance from Local 32." The General Counsel has argued that because the explanation portion of the slip is preced- ed by the printed statement, "If not eligible for rehire state reason:" that this is evidence that Dulaney had been rendered ineligible for rehire. I do not agree. Had Du- laney not asked for a further explanation, nothing would have been written in that space. In that event, his termi- nation slip would have been identical to that of Atkin- son. I conclude that both men are eligible for rehire. Although there appears to be a contract provision which arguably requires Respondent to lay off employ- ees in reverse seniority, both Timmerman and Fitzgerald agree that in this industry employers do not follow the practice. In essence, Fitzgerald finds nothing unusual about this discharge insofar as the contract's seniority clause is generally interpreted.? Immediately after their discharge the two went to the union hall in downtown Seattle to report what had hap- pened. Only minutes before they arrived Timmerman had left a meeting. There are varying accounts of what Timmerman said shortly before he left at 5 p.m. as well as differing recollections of the purpose of the meeting. He says he left to catch a ferry;" Sexton and Fitzgerald recall that he said he had an important meeting to attend. Timmerman testified that the meeting had started at 2:30 that afternoon and was not a negotiation meeting; he did not participate greatly. He says he had earlier told those present at the meeting that he would have to leave at 5 p.m. and there was nothing particularly sudden about it. He also testified that he did not mention the discharges to those present because he did not know of them.9 9 The checkmark in the "for cause" box on the termination slip does appear somewhat remarkable Yet, the reverse seniority clause can be avoided contractually if the discharge is "for cause " Normally that phrase is applied to employee competence or misconduct , not loss of em- ployment due to lack of work. Even so, the phrase is vague enough to credibly include the layoff here, which was, according to Respondent, to comply with what it interpreted to be the Union's request Certainly the request took it out of the "reduction in force" or "lack of work" catego- ries. S The ferry system is a major portion of the public transportation appa- ratus in the Seattle area and I think it is fair to observe that the frequency of departure is lengthy enough so that a missed ferry can create a great inconvenience to a traveler. 8 I think that Timmerman is shading the truth here, because in his ear- lier internal memos he referred to letting those individuals go who had been performing refer construction work He knew that that included at least Atkinson Nonetheless it may still be true that he did not know that the discharges had occurred that very day MACDONALD MILLER CO. Sexton and Fitzgerald recall the incident somewhat differently. Fitzgerald says the meeting began at 4:30 p.m. and that the employers and the Union were discuss- ing "various aspects of the industry " as having a possible Impact on the new pipefitters contract . Sexton says it began at 3 p.m., that it was a negotiation meeting and that the parties were within 15 minutes of settling the contract. He says Timmerman's departure disrupted set- tlement. Both contend Timmerman had said nothing about his need to depart at 5 p.m.'0 In fact, Fitzgerald and Timmerman agree with respect to its purpose and it would appear that Sexton was em- bellishing when he said negotiations would be settled in 15 minutes, except for Timmerman's departure. Oddly, however, Timmerman and Sexton nearly agree upon when the meeting actually started and how long it lasted. Frankly, I do not believe an analysis of this meet- ing with respect to Timmerman's supposed guilty knowl- edge of the discharges would add anything to the more salient features of the case. Nonetheless, there is one other factual matter which appears to have some bearing on Respondent's selection of Atkinson and Dulaney for discharge . Approximately 2 weeks before these discharges, Respondent hired four re- frigeration mechanics. The first was Patrick Riley on January 13. On January 17, Larry Boos and Jack Jensen were rehired and on January 18 Andrew Wade was hired. All were referred by the Union as building trades journeymen refrigeration mechanics. Nonetheless, all were assigned to the service division of the refrigeration department. One, Riley, was laid off approximately 3 weeks later after he did not work out . Schramm says Riley told him he preferred to work in refer construction rather than service. When he decided to let Riley go he permitted Riley to negotiate the termination slip lan- guage which stated that he was being discharged for "lack of construction work ," though he had never been assigned such work. Of the other three, Jensen lived in Yakima and was stationed there. Timmerman says Boos was rehired because he had boiler experience necesssary for the winter season. He also says Wade had been sought by Schramm for over 2 months but had been working for another firm . Timmerman's testimony here is uncontradicted. IV. ANALYSIS AND CONCLUSIONS The General Counsel's complaint asserts three alterna- tive theories of an 8(a)(3) and (1) violation with respect to the discharge of Atkinson and Dulaney. First, the General Counsel asserts that they were fired because they were the subject of the Union's grievance. Second, it asserts that they were fired because they were both stewards or had recently been stewards. And third, it as- serts that they were fired because of their protected ac- tivities, whether stewards or not. The first theory uses the same argument which was made during the summary io As with Timmerman, I believe both union officials are also shading the truth here in order to create the inference that there was something sinister about the way Timmerman departed shortly before they were to learn of the discharges Moreover, they are not consistent with respect to either the time of the meeting nor its purpose 707 judgment portion of the proceeding, that the discharge of the two was because they were the subject matter of a grievance, invoking the "inherently destructive doc- trine. " Under that doctrine the alleged discriminatory act carries with it its own imprimatur of illegal motive. The other two theories require proof of the various elements of a violation. union or protected activity known to the employer in circumstances where the employer is likely to react to that conduct by discharge or other penalty, i.e., animus. Respondent asserts that the General Counsel has failed to make out a prima facie case on any theory and that the burden has not even shifted obligating it to explain its actions. First, Respondent contends that Atkinson was a statutory supervisor and that insofar as he is concerned it has no obligation to explain itself to the Board. Assum- ing that Atkinson was not a supervisor, however, it argues that the discharge in response to the Union's grievance carries with it no imprimatur of discrimination. Indeed, from Respondent's point of view, the transfer of work to the pipefitters was exactly what the Union had requested and that under the circumstances it was ex- pected that somebody, most likely refer construction me- chanics, would lose their jobs. Furthermore, it asserts that there is no traditional evidence of union animus against either Atkinson or Dulaney. It also asserts that their union activity was minimal: Atkinson was totally a benign shop steward and never made a complaint or filed a grievance; the only grievance which Dulaney voiced about which Respondent knew was one to Estes shortly after he became steward in which he opined that there was some problem with the overtime rights of some other employees. That had nothing to do with the refer construction work. Respondent asserts that it was was totally unaware than Dulaney had made any complaint to the Union about his wage for performing refer construc- tion work. Thus, Respondent argues that the General Counsel has failed to prove that it somehow knew of At- kinson and Dulaney's activities, limited as they were, or that even if it did, that it had any desire to punish them. With respect to Respondent's defense that Atkinson was a statutory supervisor, I have earlier concluded in section III,B, that he was. It appears that he was given supervisory authority as early as March 1983 and that he held it continuously until his discharge in January 1984. To reiterate, it is true that his authority was not exer- cised with great frequency as he often worked by him- self. Nonetheless, his own testimony shows that during that entire time he oversaw Dulaney's refer construction work at Bellevue Square. I have earlier noted that, al- though he did not have hire or fire authority, he had a great deal of independent judgment with respect to as- signing employees to perform refer construction work. Often he assigned himself but he also assigned others in- cluding Dulaney, Culver, and later Mozier. He attended regularly scheduled foremen meetings and coordinated refer construction work with the other construction trades. He purchased material and arranged for installa- tion equipment. His duties were described to him in an early memo which was handwritten and a second memo which was typewritten. Since Atkinson was a statutory 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor within the meaning of Section 2(11) of the Act, under the Parker-Robb Chevrolet doctrine ir he did not have the protection of Section 7 of the Act. Accord- ingly, the allegation of the complaint respecting his dis- charge shall be dismissed. Although the complaint will be dismissed with respect to Atkinson on supervisory grounds, the following dis- cussion of Dulaney's discharge applies equally to Atkin- son assuming he was not a supervisor. The General Counsel asserts that because Dulaney was fired because he was the subject matter of the grievance, the discharge violates the Act on near per se grounds. It is quite true that Dulaney was discharged because of the grievance. Had Timmerman not transferred the work from the refrigeration department to the pipefitters, no discharge would have occurred. Curiously, the General Counsel concedes that the work transfer itself was non- discriminatory. In,any event, both the memo handed to Dulaney at the time of his discharge as well as the note on his termination slip, "per grievance from Local 32," demonstrate that he was discharged as a result of the Union's grievance. Yet it is clear that this is not a run-of- the mill discharge grievance reprisal. Usually those cases involve a claimant who has filed a grievance and who is discharged due to the employer's displeasure. Examples of such cases are: Thor Power Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965); Top Notch Mfg. Co., 145 NLRB 429 (1963). These cases, however, are clearly not considered to be in the category of inher- ently destructive discharges; animus is always proven. Under the General Counsel's inherently destructive theory, Respondent's act of discharging Dulaney because he was the subject matter of a grievance, without more, constitutes a violation of Section 8(a)(3) and (1). Thus, according to the General Counsel, all it has to do is show the language on the termination slip and the lan- guage in the memo accompanying the discharge to make out a violation, for, in her view, that language amply demonstrates that the discharge was inherently destruc- tive of Section 7 rights. Yet, I remain unconvinced. At this juncture it becomes appropriate to review the nature of the inherently destructive doctrine. The lead cases discussing this doctrine are NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); and NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). In general, these cases hold that a violation of Section 8(a)(3) may be found in the absence of proof of the traditional elements of union animus where the discharge occurs in circumstances having such a wide impact as to bear its own indicia of antiunion intent These cases address the treatment of strikers and found' violations when nonstrikers were given preferen tial treatment over strikers without any legitimate or sub- stantial business justification. In Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976), an appel- late court said that for conduct to be inherently destruc- tive it must not only bear its own indicia of intent, it must also have far-reaching effects such as hindering future bargaining or discriminating solely on the basis of participation in strikes or union activity, i.e., the creation 11 262 NLRB 402 (1982) of visible and continuing obstacles to the future exercise of employee rights protected by Section 7. In American Ship Building Co. v. NLRB, 380 U.S. 300 (1965), the Supreme Court discussed another inherently destructive type case. There, the employer had locked out its employees for bargaining reasons telling them, "Because of the labor dispute ... you are laid off until further notice." Thus, the employees lost employment as the direct result of the bargaining dispute, i.e., their union activity. Even so, the Court held the lockout not to be violative of the Act. It said, "[T]he right to bargain does not entail any `right' to insist on one's position free from economic disadvantage." 380 U.S. 300, 309. The court thus rejected the contention that lockouts in sup- port of bargaining positions, in the absence of union animus, violate Section 8(a)(3). It concluded: "[T]here is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargain- ing disputes. Therefore we conclude that where the in- tention proven is merely to bring about a settlemenj f a labor dispute on favorable terms, no violation of Section 8(a)(3) is shown." 380 U.S. 300, 313. In essence, the Court held that nonanimus lockouts do not fall within the inherently destructive category, despite the layoff notice which the company had issued. The Board has carried this logic into the grievance context. In Monarch Machine Tool Co., 227 NLRB 1880 (1977), recently cited with approval in P. W. Supermar- kets, 269 NLRB 839 (1984), the union won a startup time grievance for those employees on the company's third shift. The employer had earlier said that winning the grievance would render the third shift economically un- feasible and would result in its elimination. There was no evidence of hostility to the union. The Board held that no violation occurred when the shift wag eliminated de- spite its connection to the grievance Similarly, in P. W. Supermarkets, supra, the union won a grievance, but be- cause of the expense entailed, two employees were laid off. Without evidence of hostility against the union and with evidence of economic considerations, the Board found no violation. It is apparent, therefore, that in cases of this nature, the Board will not apply the inherently destructive doc- trine. If the lockout of an entire work force is not far- reaching, to use the Portland- Willamette phrase, certainly two discharges are not. Second, discharges even when connected to a protected act such as a grievance do not necessarily carry with them their own indicia of antiun- ion intent. In American Ship that connection was clearly shown in the employer's layoff notice, but was not dis- positive. Here, too, a similar connection can be seen in the discharge memo; likewise, neither is it dispositive. Fi- nally, no visible and continuing obstacle to the exercise of Section 7 rights by employees can be seen. Thus the General Counsel's inherently destructive theory is reject- ed as a viable avenue for liability. Even so, assuming that the theory has utility, it is clear under the Fleetwood doctrine, that even if an act may be considered to be inherently destructive, the presumption may be rebutted by a showing that the act was taken for MACDONALD MILLER CO substantial and legitimate business purposes. Here, Re- spondent has demonstrated that the discharge was a direct response to a grievance which literally demanded that the work be performed under the pipefitters con- tract. Furthermore, there is credible evidence that during the precursor conversations Fitzgerald told Timmerman the proper assignment of the work was to the," ipefitters. Moreover, although Sexton testified that he had never heard the possibility of reassigning the work before it ac- tually occurred, his testimony on other points gives me pause, particularly his contention that Timmerman had agreed to pay the refer construction mechanics the pipe- fitters" rate. I do not believe that ever happened. There- fore, his denial that the reassignment of work was an un- expected turn of events is subject to doubt. This is par- ticularly so given Fitzgerald's preference as expressed to Timmerman. Accordingly, conceding for the purpose of argument that the General Counsel's inherently destruc- tive theory has merit, it appears that Respondent's expla- nation is a sufficient rebuttal. Its sole purpose was to comply with the demand set forth in the Union's griev- ance by paying the pipefitters' rate to the employees per- forming the refer construction work. That is exactly the remedy which the Union sought and constitutes a sub- stantial and legitimate business justification within the meaning of Fleetwood. The Traditional Theories With respect to the second and third theories that the discharge was in response to Dulaney's status as either a steward or an ad hoc steward, the evidence fails there as well. This theory, unlike the inherently distinctive theory, requires a showing that Respondent harbored animus against either the Union or Dulaney. Certainly there is no evidence that Respondent has any animus against the Union. The General Counsel concedes the Respondent's decision to transfer the work was not dis- criminatory and although Respondent has taken some positions at the bargaining table which the Union has not accepted, that is hardly evidence of animus. Respondent apparently knew, through Estes, that Dulaney was con- cerned about some overtime practices relating to some other employees, but there is no evidence that Schramm, Lovely, or Timmerman were actually aware of his con- cern nor is there any suggestion that anyone was dis- turbed by his questioning the practice. Furthermore, Re- spondent had a legitimate question regarding whether Dulaney had even become a steward. Atkinson had been appointed in 1980 by the Union. (Apparently he had vol- unteered in the absence of anyone else who wanted the job.) Fitzgerald testified that it was common for the Union to appoint stewards during that time because of a longstanding court order; it wished to ensure that its stewards understood it. Shortly before this election the court order was lifted. Thus, the election which Atkin- son conducted did not appear to be consistent with the Union"s past practice of appointing stewards. Moreover, the National Agreement required the Union to notify Re- spondent in writing whom it had selected as steward. Neither Sexton nor Fitzgerald ever did so. Thus, from Respondent's standpoint, it can legitimately doubt whether Dulaney was ever officially made a steward. 709 The inquiry, however, does not end there because em- ployees are protected under Section 7 for engaging in contract enforcement activity whether they are stewards or not. NLRB v. City Disposal Systems, 460 U.S. 1050, (1984). Still, it is undenied that Dulaney never pressed the refer construction pay matter to Respondent in any way. Oddly, Schramm seems to think that the subject matter may have been mentioned during the stewardship election in late November or early December 1983, but Dulaney and Atkinson both deny that it was mentioned then. In any event, by that time the grievance had al- ready been filed and, as Sexton concedes, appeared to be an institutional one, not one initiated by a steward or by an individual claimant. Of course , in making that obser- vation it nonetheless goes without saying that the two in- dividuals likely to be affected by it were Atkinson and Dulaney; once Sexton had straightened out the purpose of the grievance with Timmerman , Respondent's man- agement knew that. I think it is fair to say that the General Counsel has therefore proven that Respondent knew that Dulaney was some sort of steward , whether with or without full portfolio, and that Dulaney, unlike Atkinson before him, appeared to have a marginally greater interest in con- tract enforcement than Atkinson had previously shown. The General Counsel has also shown that Respondent knew Dulaney was the likely beneficiary of a favorable resolution to the Union's grievance. Despite all this knowledge, however, there is still a failure of evidence that Respondent had a propensity to take punitive action against Dulaney either because of his status as a steward or his desire to be recompensed for the wage differential . In fact, the only evidence on the subject is to the contrary . 12 Timmerman testified that one of the reasons he decided to transfer the work to the pipefitters, rather than simply to pay the pipefitter rate to refrigeration department employees performing refer construction, was to avoid setting a precedent for a backpay claims. His interest, therefore, was to accede to the grievance and to comply with the contract as inter- preted by the Union while at the same time avoiding an admission that the previous practice was incorrect. Thus, his conduct was consistent with the Union 's view of the contract . Animus cannot be discerned from that . And, as previously noted, the General Counsel concedes that the work transfer itself was nondiscriminatory. The General Counsel makes one final argument, appar- ently to demonstrate animus. He asserts that the amount of refer construction work involved here is so insignifi- cant that it would have been the better business practice to have absorbed Dulaney into the service division rather than to have discharged him. It contends that the 12 It is true that Schramm noted to himself that Atkinson was sup- posedly saying Respondent was antiunion Yet, I do not believe the remark has any value here- First, Atkinson was a supervisor and Schramm could view Atkinson's perceived attitude as an abdication of his supervisory role Second , the remark is a non sequitur Assuming At- kinson believed it, it does not mean his belief is founded on fact More- over, it does not follow that Respondent would discharge an employee for having such a belief-a belief which is probably common to employ- ees throughout industry Finally, Schramm 's personal note to himself is not evidence of company animus 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD total amount of refer construction work was less than one full-time job and argues that there was no need to discharge two individuals when either or both of them could have been absorbed into the service division. It also argues that some of the four new hires should have been laid off. It appears that during 1983 and early 1984 more than half of Atkinson's time was spent doing refer construc- tion and approximately one-third of Dulaney's time was spent performing that work. Assuming the General Counsel's observation to be factually accurate, it does not follow that the appropriate business decision to be made required keeping either Atkinson or Dulaney. It was, after all, their work which had been transferred and literally their work was gone. Schramm was somewhat concerned about Atkinson's success as a foreman in any event. And, simple arithmetic shows that Atkinson and Dulaney together comprised five-sixths of a full-time job. If Atkinson was discharged as a supervisor, all of his and Dulaney's work would fall upon the individual assigned to perform refer construction work, the pipefitter. That would mean that there was only one-sixth of a job left for Dulaney to perform in service. Neither he nor Atkin- son, unlike the service division personnel, had permanent maintenance clients and Dulaney could thus be seen as nearly a full-time refer construction person, a job which no longer existed and there was no apparent need to retain him. Indeed, it is not particularly unusual for com- panies whose work comes to an end to discharge those people who had been performing the work in question even though other work may be needed elsewhere. Absent a contractual obligation, there is no requirement that an employer absorb an employee whose work has disappeared. Even Union Official Fitzgerald agreed that there was no breach of the reverse seniority clause as practiced in the area. Moreover, that analysis permitted Respondent to keep the four it had recently hired . Final- ly, both men are eligible for rehire. This evidence does not demonstrate animus. In the absence of animus, I conclude that the General Counsel has failed to show that Respondent discharged Dulaney either because he was a union steward or be- cause he had engaged in other activities protected by the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Raymond Atkinson was not Respondent's employee as defined in Section (3) of the Act but was its supervi- sor as defined in Section 2(11) of the Act, and is not enti- tled to the protection of the Act. 4. The General Counsel has failed to demonstrate that Respondent discharged Raymond Atkinson and/or Ken- neth Dulaney for reasons prohibited by the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 ORDER The complaint is dismissed in its entirety. 'a If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.