Howard Electric Co.

HOWARD ELECTRIC CO. Howard Electric Co. and Fred J. Hahn, Attorney. Case 19-CA-14758 21 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 13 December 1983 Administrative Law Judge David G. Heilbrun issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering 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, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the conduct of employees Marshall Rapp, Joe M. Dyer, and Rue Stears in protesting what they deemed to be violations of a current collective-bargaining contract did not "[rise] beyond petty maneuverings to the level of concerted, protected activities" and that conse- quently they were not unlawfully discharged by the Respondent.' For reasons given below, we do not agree with the judge and find that the dis- charges violated Section 8(a)(1) of the Act. The Respondent subcontracted with S. J. Groves Company to perform electrical work in 1981 and 1982 on a turbine project for the city of Idaho Falls, Idaho. In addition, the Respondent entered into an arrangement with another subcontractor, Eagle Construction Company, to provide electri- cians for the latter. The Respondent's employees were covered by a collective-bargaining contract between their representative, Local 449, Interna- tional Brotherhood of Electrical Workers, 2 and the Idaho Chapter of the National Electrical Contrac- tors Association (NECA).3 The issues to be decided are whether the con- duct of Rapp, Dyer, and Stears in protesting what they regarded as violations of the contract consti- tuted protected concerted activities within the meaning of Section 7 of the Act4 and, if so, wheth- i Although the judge reached the same conclusion with respect to em- ployee Dennis K. Hendricks, the General Counsel did not except to that. 2 The International is herein referred to as the IBEW. 3 The pertinent provisions of the contract are set forth in App. B. 4 Sec 7 provides in pertinent part that "[e]mployees shall have the right to . form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" 911 er the employees were discriminatorily discharged because of those activities. - In NLRB v. City Disposal Systems, 465 U.S. '822 (1984), the Supreme Court endorsed the Board's Interboro doctrine 5 which recognizes that an em- ployee's "honest and reasonable invocation of, a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated."6 Although the Supreme Court ob- served that the "principal tool by which an em- ployee invokes the rights granted him in a collec- tive-bargaining agreement is the processing of a grievance according to whatever procedures his collective-bargaining agreement establishes," the Court also included within the ambit of concerted activity a protest to the employer rather than the filing of a formal grievance. The employees here invoked certain provisions of the contract dealing with referral procedure and work assignments. The Union in a series of letters challenged the Respondent's hiring of Charles White as contrary to a contractual provision that limits the number of nonresident journeymen to a single individual.7 To resolve their dispute, the parties agreed on the con- vocation of the contractually provided Labor-Man- agement Committee8 that unanimously decided on 2 June 1981 that the Respondent, which had previ- ously taken on Elmer F. Bishop as the nonresident journeyman,9 had violated the contractual referral procedure by hiring White for that position. Stears, who was the Union's steward, observed that there- after White continued to give orders to the em- ployees, a practice regarded by Stears as contrary to the Committee's decision and the contract. Ac- cordingly, Stears expressed his concern on that score to Respondent official Bishop on a number of occasions in the ensuing period. Early in February 1981 Stears and other union officials met with management to discuss White's status.1 ° At that meeting, the Union also contended that the Respondent had failed to appoint a general foreman as required by the contract when there are three foremen working for an employer." On the evening of 17 February 1982 Stears informed NECA Chapter Manager Cates that Bishop had Interboro Contractors, 157 NLRB 1295 (1966) s City Disposal, 465 U S at 840. ' Art. III, sec. 23. 8 See art. I, secs 1 and 2. 9 At this time Bishop was the manager in charge of the electricians at the Idaho Falls project iO White was present at the meeting at which Stears told employees that White had no authority to give orders to the employees and the foremen. ii See art. III, sec 12. 285 NLRB No. 109 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not appointed a general foreman pursuant to his promise to do so, and soon thereafter the latter questioned Bishop on this matter. Dyer and Rapp, who were journeymen electri- cians, were involved in two jurisdictional disputes in late January and February 1982 concerning who was entitled to do the work of wire pulling.12 Both Rapp and Dyer objected to having the work done by the non-IBEW engineers rather than by the electricians. In this connection, Dyer asserted that assigning , this task to engineers was in violation of the contractual provision that only electricians were entitled to do wire pulling 13 and electrical work. Although Rapp .did not specifically refer to the contract as a basis for his assertion that engi- neers do not pull- wire for electricians, it is clear that this statement does refer to "a reasonably per- ceived violation" of the contract.14 As noted- at the outset, the judge characterized- the -employees' conduct as "petty maneuverings" that did not rise "to 'the level of concerted, protect- ed activities." Even assuming the relevance of that assessment, the judge failed properly to evaluate the employees' protests against what they deemed to be important violations of the contract. That the protests were about a serious matter and not to be denigrated as "petty" or inconsequential is shown by the parties' exchange of correspondence, their frequent meetings, their convocation of the Labor- Management Committee, and the Committee's de- termination that the Respondent had violated the contract by hiring White. It is clear that the employees honestly and rea- sonably invoked their collectively bargained rights by questioning the status and authority of White, objecting to the Respondent's failure to appoint a general foreman, and asserting their exclusive right to perform all electrical work, regardless of wheth- er they were correct in their belief that their rights were in fact violated. We' therefore find on the basis of the criteria enunciated in City Disposal Sys- tems that the protests of the employees concerning violations of the contract involving terms and con- ditions of employment constituted protected con- certed activities within the meaning of Section 7 of the Act.15 We now consider the question whether the Re- spondent discharged employees Rapp, Dyer, -and Stears because of their protected concerted activi- ties. Under Wright Line, 251 NLRB 1083 (1980), the General Counsel must make a prima facie showing that the employees' protected conduct was a motivating factor in the employer's decision to discharge the employees. Once this is estab- lished, the burden shifts to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct.16 As indicated' above, the prolonged dispute be- tween the parties, which culminated in the dis- charges in January and February 1982, stemmed in large measure from the Respondent's hiring of White in May 1981 and the Union's protest against that action as contrary to the provisions of their contract. Not only did the Union and its steward, Stears, protest White's exercise of supervisory au- thority, but they also objected to the Respondent's failure to name a general foreman as contrary to the terms of the contract. Additionally, Rapp and Dyer raised the jurisdictional issue when they took the position that the assignment of wire pulling to non-IBEW engineers would contravene the con- tract. That the Respondent was growing increasingly concerned about the protests of the union repre- sentatives and the employees who were discharged is shown by the following: (1) Respondent Foreman Michael Barker's un- contradicted testimony that Bishop declared early in- 1982 that the Respondent was having "a lot of labor troubles"; (2) Respondent Foreman Charles A, LoPresti's uncontradicted testimony that White asked him in February 1982 about the nature of Dyer's work as- signment and warned that if Dyer, did have a prob- lem, the Respondent had "a cure"; (3) Dyer's testimony that he was told by Lo- Presti in February 1982 that Dyer, had "angered White who was going to run Dyer off for the slightest provocation";17 (4) the uncontradicted testimony of Eagle Fore- man Dennis Dineen that on 22 February 1982 sub- sequent to the discharges, he heard White say, "We got three of the hard heads"; and (5) the fact that some of the so-called disrup- tions, which Bishop gave as the causes of the dis- charges, involved employee protests against what they regarded as contract violations.18 , It is significant that at no time prior to their dis- charge did the Respondent criticize the productivi- ty _ or caliber of the work of the three employees 12 This procedure involved "pulling wire" out of a manhole to the sur- face. 13 See art III, sec 24(a) 14 See NLRB v. City Disposal Systems, supra. 15 Because the employees did not stop work, there is no issue regard- mg the ultimate merit of their protests or the application of any no-strike agreement. is See NLRB v. Transportation Management Corp, 462 U S 393 (1983), in which the Supreme Court approved the allocation of proof set forth in Wright Line. 17 Although this is hearsay testimony, it is noteworthy that White, who did not testify at the hearmg, was not called as a witness to rebut it 18 See below the discussion of Bishop's shifting defenses HOWARD ELECTRIC CO. 913 and that in fact their performance was deemed sat- isfactory and even praised. Thus, Bishop testified that Stears was an "excellent" employee; Foreman LoPresti testified that Rapp was a satisfactory em- ployee; and Dyer testified that both White and Bishop complimented him on his work about 17 February 1982. We find unpersuasive and inconsist- ent Bishop's explanation that the Respondent gave no warnings to employees because they were "well qualified to perform their job . . . without being treated as little kids." Equally without merit is Bishop's explanation that Dyer, who was dis- charged as an "unsatisfactory employee," was nev- ertheless complimented by White because Bishop encouraged supervisors to commend employees when a particular job is well done by them. It is also significant that Bishop offered the fol- lowing shifting defenses for the discharges: Although the Respondent's notice of Rapp's ter- mination, which was ' signed by Bishop, stated that the reason for his "layoff" was a "reduction-in- force," Bishop's subsequent statement to the Idaho Department of Employment described the termina- tion as a "discharge" and then set forth further rea- sons that were not contained in the notice of termi- nation: disruption to other employees, willful inter- ference with radio communications, and refusal to communicate with management personnel and at- tempts to prevent employees then doing so. There- after, at the hearing, Bishop added a new reason, namely, Rapp's "very low production." We find unconvincing Bishop's testimony that he did not previously mention that reason "because underly- ing low production, there are always other causes."19 In this connection, it is noteworthy that another employee (Brett Belknap), whose produc- tion was low, was not discharged but was trans- ferred to another crew. Similarly, Bishop presented shifting defenses con- cerning the discharge of Dyer, who was told with- out explanation that he was being terminated as "unsatisfactory." It was not until Bishop's subse- quent statement to the Idaho Department of Em- ployment that he referred to disruptions and pro- duction delays caused by Dyer. It was not until the hearing that Bishop gave Dyer's own "extremely low" production as another reason for the dis- charge. Yet, as indicated above, Bishop admitted that White, had on the day before Dyer's termina- tion complimented, his work. 19 As the judge pointed out, Bishop also offered at the hearing a "strange" and "suspicious" quantification of the reasons for terminating Rapp; 5 percent for the refusal to communicate with management person- nel, 30 percent for disruption to other employees involving two instances of drinking coffee and talking, 5 percent for his disruptive conduct in protesting that "engineers do not pull our (IBEW) wire," and 60 percent for low production. The same pattern was repeated with respect to the discharge of Stears and Bishop's reasons there- for. Thus, Bishop insisted that Stears, who was'not notified of the first wire-pull dispute, nevertheless had an obligation to settle, it. This contention is without merit particularly in view of the uncontest- ed evidence that Stears responded promptly when he was informed of the second wire-pull incident and used his good offices to have the dispute set- tled. Although Bishop testified that Stears "created general disruption" by talking to other workmen, Bishop conceded that he could furnish no specific examples of disruption and in fact "tolerated" it for 8 months prior to the discharge without speaking to Stears about it. In sum, we find it significant that, given the mul- tiplicity of reasons advanced by Bishop, none of them was advanced by him at the time of the actual terminations. His shifting defenses are strong evidence of the Respondent's discriminatory motive in discharging the employees in question.20 We conclude, on the basis of the foregoing, that the General Counsel has made a prima facie show- ing that the protected concerted activity of Rapp, Dyer, and Stears was the motivating factor of the Respondent to discharge them, and that the Re- spondent has not established an affirmative defense for the discharges. Accordingly, we find, contrary to the judge, that the Respondent violated Section 8(a)(1) of the Act by discharging these employees because they en- gaged in protected concerted activity by their pro- tests against what they reasonably and honestly deemed to be violations of the contract. We also find that the Respondent violated Section 8(a)(3) of the Act by discharging Stears who was acting in his capacity of union steward in seeking, in con- junction with both the Union's business agent and its president, enforcement of various provisions of the collective-bargaining agreement.21 CONCLUSIONS OF LAW 1. The Respondent, Howard Electric Co., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the-Act. 2. The Respondent violated Section 8(a)(1) of the Act by its discriminatory termination of Marshall Rapp on 28 January 1982, Joe M. Dyer on 18 Feb- 20 See Taft Broadcasting Co, 238 NLRB 588, 589 (1978) 21 See art. III, sec 31. It is well established that a steward is protected by Sec 8(a)(3) of the Act when he processes grievances and polices the collective-bargaining agreement. See McGuire & Hester, 268 NLRB 265 fn 1 (1983), and Pacif- ic Coast Utilities Service, 238 NLRB 599, 606 (1978), However, we do not find it necessary to pass on the General Counsel's 8(a)(3) allegations with respect to Dyer and Rapp, who were not union stewards or officers 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ruary 1982, and Rue Stears on 19 February 1982 because they engaged in the concerted activities for mutual aid and protection of protesting what they reasonably and honestly deemed to be viola- tions of the contract. 3. The Respondent violated Section 8(a)(3) of the Act by discharging Rue Stears on 19 February 1982 for acting in his capacity of union steward in seeking enforcement of various provisions of the collective-bargaining agreement. 4. The aforesaid unfair labor practices affect' commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) and (3) of the Act, we shall order that it cease and desist and take certain action to effectu- ate the policies of the Act. Having found that the Respondent discriminator- ily discharged Marshall Rapp, Joe M. Dyer, and Rue Stears, we shall order the Respondent to offer each reinstatement to his former job or,-if that job no longer exists, to a substantially equivalent posi- tion.22 We shall order the Respondent to make them whole for any loss of earnings they have suf- fered as a result of their discriminatory discharges. The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in New Horizons for the Retarded.23 We shall also order the Respondent to preserve and, on request, make available to the `Board or its agents any and all records necessary to analyze the amount of backpay due. We shall further order that the Respondent remove from its files any reference to the unlawful discharges and notify these employees in writing that this has been done and that the discharges will not be used against them in any way. In addition, we shall order the Respondent to mail copies of 22 Reinstatement is the Board's normal remedy for violations of this kind and we find it appropriate here See Dean General Contractors, 285 NLRB 574 (1987), Litton Systems, 271 NLRB 915 (1984) We are aware that, even absent unfair labor practices , the Respondent might have laid off the three employees in question during the course of the project or terminated them on its completion The record, however, does not clear- ly demonstrate that this would have happened . Therefore, this matter is properly left to the compliance stage of this proceeding. For the reasons stated in his dissent in Dean General Contractors, supra, Chairman Dotson would not order that the discriminatees be reinstated but rather that they be considered for future employment 23 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 ' amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26U.S.C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). the notice marked "Appendix A" to all its employ- ees who were employed on the project. ' ORDER The National Labor Relations Board orders that the. Respondent, Howard Electric Co., Idaho Falls, Idaho, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees or otherwise discrimi- nating in regard to their hire, tenure of employ- ment, or any terms or condition of employment be- cause they engaged in the concerted activity for mutual aid and protection of protesting against what they reasonably and honestly deem to be vio- lations of a collective-bargaining agreement' be- tween their bargaining representative and the Re- spondent. (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. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Marshall Rapp, Joe M. Dyer, and Rue Stears immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. (b) Make Marshall Rapp, Joe M. Dyer, and Rue Stears whole for any loss of pay they may have suffered by reason of their discharges in the manner set forth in the remedy section of this deci- sion. (c) Remove from its files any reference to the discharges of the above-named employees and notify them in writing that this has ' been done and that the discharges will not be used against them in any way. (d) Copies of the notice, marked "Appendix A,"24 provided by the Regional Director for Region 19, shall, after being signed by the Re- spondent's authorized representative, be sent to the above-named employees and the employees em- ployed by the Respondent at the city of Idaho Falls, Idaho project. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records,, timecards, personnel records and reports, 24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " HOWARD ELECTRIC CO. and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX A 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 any of our employees or otherwise discriminate ' in regard to their hire, tenure of employment , or any terms or condition of employment because they engage in the concerted activity of protesting against what they reasonably and honestly believe to 'be violations of the collec- tive-bargaining agreement between Local 449, International Brotherhood of Electrical Workers, and, Howard Electric Co. 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 Marshall Rapp, Joe M. Dyer, and Rue Stears immediate and full reinstatement to their former jobs or, if those jobs no ' longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL remove from our files any reference to the unlawful discharges and notify the above- named employees that this has been done and that the discharges will not be used against them in any way. HOWARD ELECTRIC CO. APPENDIX B ARTICLE I Sec. 5. There shall be a Labor-Management Commit- tee of three representing the Union and three represent- ing the Employer .. . . Sec. 6. All grievances or questions in dispute shall be adjusted by the duly authorized representatives of each of the parties to this Agreement. In the event that these two are unable to adjust any matter within 48 hours, they shall refer the same to the Labor-Management Committee. Sec. 7. All matters coming before the Labor-Manage- ment Committee shall be decided by majority vote. 915 ARTICLE III Sec. 12. On jobs requiring three (3) to ten (10) jour- neymen, one shall be designated by the Employer as a Foreman ... . When three (3) foremen are required on a job , a gener- al foreman shall be designated by the Employer. On jobs requiring a foreman, the foreman shall give all the work- ing orders. Sec. 23. Any outside firm doing electrical work within the jurisdiction of this Local Union shall not be allowed to bring in more than one non-resident journeyman Sec. 24(a). Workmen employed under the terms of this Agreement shall do all electrical construction,, installa- tions, erection work, and electrical maintenance. (b) It is understood and agreed that in case of emer- gency, all electrical work shall be performed by work- men working under the terms of this Agreement. (c) Such work shall also include the customary inci- dental work . . . all work on chasing and channeling necessary to complete any electrical work, and the han- dling and moving of any electrical materials , equipment and apparatus shall be performed by the workmen under the terms of this Agreement. Sec. 31 . The Union shall have the right to appoint a steward at ,any job where workmen are employed under the terms of this Agreement . . . . [The] steward shall see that the Agreement and working conditions are ob- served by both the Employer and Empl6yee on the job involved . . .. No steward shall be discriminated against by the Employer for ' making a complaint or giving evi- dence with respect to any alleged violations of any pro- visions of this Agreement .... When a workman discovers an alleged violation of the Agreement, he is to report the alleged violation to the steward and immediately return to work .... ARTICLE V 1. The Union shall be the sole and exclusive source of referrals of applicants for employment. 4. The Union shall maintain a register of applicants for employment on the basis of four groups .... 6. The Employer shall advise the Business Manager of the Local Union of the number of applicants needed. The Business Manager shall refer applicants to the Em- ployer in order of their places on the Out of Work List [in each group]. Patrick F. Dunham, for the General Counsel. David R. Gorsuch, of Denver, Colorado, for the Re- spondent. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was tried at Idaho Falls, Idaho , July 28-29, 1983. The charge was filed by Fred J. Hahn June 30, 1982, and 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the complaint was issued March 9, 1983.1 The primary issue is whether Howard Electric Co (Respondent) dis- criminatorily discharged four employees because of their activities on behalf of Local 449, International Brother- hood of Electrical Workers (the Union), in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. On the entire record, including my observation of wit- ness demeanor, and after consideration of briefs filed by the General Counsel and Respondent, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION Respondent, a Colorado corporation, during a repre- sentative past 12-month period, exceeded the Board's nonretail jurisdictional standards for both inflow in rela- tion to its Colorado facilities. At all relevent times it had an office and place of business in Idaho Falls, Idaho, where it was engaged in the business of electrical con- tracting. Respondent admits and I find that it is an em- ployer engaged in commerce within the the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. IL ALLEGED UNFAIR LABOR PRACTICES The case solely concerns the employment, of electri- cians for construction of three bulb turbines and related structures on the Snake River at or near downtown Idaho Falls. Respondent performed as a subcontractor to S. J. Groves Co., and brokered labor to Eagle Construc- tion Co. An applicable collective-bargaining agreement between the National Electrical Contractors Associa- tion's Eastern Idaho Chapter and the Union contained typical provisions, with an exclusive hiring hall clause and other language restricting an outside firm from bringing more than one nonresident journeyman into the jurisdiction. Elmer Bishop, a 15-year employee of Respondent, started up the job in 1980. By May of the following year Respondent desired to have Charles White assisting Bishop, and was then also beginning its arrangement with Eagle. Jon Walters, union business manager, disput- ed White's entitlement to reach the job as another non- resident journeyman, arguing that this would circumvent the contract. On June 2 a joint labor-management com- mittee considered the matter and found Respondent in violation of referral procedure. The problem simply festered and, by the following February, Walters was still corresponding with the man- ager of NECA's Chapter, arguing that White's aura of authority as persistent giver of orders was a cause of dis- sension among members and of confusion insofar as layout and direction of work was concerned. Rue Stears, Joe Dyer, and Marshall Rapp had been hired by Respondent as journeyman electricians in June, August, and September, respectively . Dennis Hendricks ' All dates and named months hereafter are from April 1981 through March 1982, unless otherwise indicated was hired for Eagle in January. The order of bulb tur- bine completion was lower plant first, followed by city and upper. This sequence somewhat dictated utilization of Respondent's foremen and journeymen, with employ- ment on the project peaking in February. Over the months Rapp and Stears had openly chal- lenged White's authority, and general consternation arose when White was known to be moonlighting with materi- als from the job. At one point Bishop, then project man- ager, sought to have Foreman Mike Barker assign Stears to an isolated basement area of the control building. On two separate occasions a planned wire pull was delayed by work claims between the electricians and operating engineers employed by Groves. The first occurred on January 27, with Rapp outspokenly objecting to the ju- risdictional incursion by another craft. When the conten- tion arose a second time on a wire pull in early Febru- ary, Dyer resurrected a protest he had made about how the dispute was resolved the first time. Dennis Dineen, a pipefitter foreman with Eagle, testified that on February 22 he overheard White saying that three hard heads had been gotten. ' By February Respondent was utilizing three foremen, a condition that contractually obligated it to appoint a general foreman. This oversight was pressed by Walters, and a meeting ensued in early February on the matter. Stears was also in attendance and added his remarks in support of Walters. The next day Respondent demoted Barker to journeyman, leaving Kay Thurman and Charles LoPresti as its foremen. On February 18 Dyer and Hendricks were both discharged, while Stears, who had been the job steward, was transferred to Eagle. The next day Reggie Thompson, Eagle's superintendent, ad- vised Bishop he did not want Stears, resulting in his im- mediate discharge. Rapp had been terminated by reduc- tion in force on January 28. These facts, coupled with a showing that Hendricks had openly 'opposed right-to-work legislation for Idaho, are the essential bases of the General Counsel's conten- tion that discriminatory motivation has influenced each of the terminations. It was also established that Bishop enlarged on his reasons for releasing the employees by later claiming before the Idaho Department of Employ- ment that all had low productivity, were disruptive to others, were at fault during the pulling incidents, and re- fused to accept White's superintending authority. What I see in this case is a running clash of personalities, on which was superimposed the Union's institutional interest in maintaining the nonresident journeyman limitation of the contract. I recognize that several aspects of the evi- dence would suggest a contrary leaning. One is that Bishop, was led to testify how he perceived a right to discharge Stears even for the nonperformance of steward duties. This startling claim was hypothetical in nature, however, and not established as an actual basis of Bish- op's decision regarding Stears. Even more astonishing is Bishop's resolute assertions that the journeymen who performed many months for him were really viewed as chronically poor workers, warranting a litany of objec- tions to their unemployment compensation application. This afterthought, and the strange quantifications that HOWARD.ELECTRIC, CO.t Bishop was induced to offer, is suspicious, but hardly an unusual course of action when a company attempts to marshall arguments against the payment of postemploy- ment benefits. Certain miscellaneous verbalisms covered by the testimony are cryptic in terms of the Act, but not of sufficient meaning to buttress the required burden of proof. Overall, the case does not have a ring of discrimina- tion about it, and such evidence as would suggest that is counterbalanced by a showing that Bishop was so suffi- ciently imbued with the values of unionism that he was likely to illegally discriminate. There is instead a dispute in perceptions as to how briskly and attentively project tasks should have , been carried out, with Bishop's per- haps rigorous standards influencing his opinions. The case does not truly involve credibility assessments, for testimony of Barker, LoPresti, and the alleged discrimin- atees themselves that satisfactory work was performed is self-serving and too generalized to offset Bishop's own managerial evaluations. My holding in this vital area of the case is influenced by the fact that no clearcut stand- ards for completing tasks such as cable tray and switch gear installation were presented by, the General Counsel. These were specific areas in which Rapp and Hendricks were respectively faulted. Additionally, LoPresti con- firmed that in mid-January, prior to any of the allegedly' discriminatory terminations, he had been elevated to foreman for the express purpose of increasing job pro- ductivity. LoPresti is also the witness who recalled 917 Stears having urged journeymen at a safety meeting to ostracize White, a recommendation that is tantamount to inciting insubordination and a loss of statutorily protect- ed character to their collective resistance. Finally, I note that Edward Snider, a former electrician on the job, made a mild rebuke to White and was soon after dis- charged, even in the context of receiving compliments about his workmanship. Bishop's explanation of why and when the various in- dividuals were released lacks conviction, but neither is it shown by a preponderance of evidence that any conduct rose beyond petty maneuverings to the level of concert- ed, protected activities. There is,a standoff of testimony whether electrical tasks were performed by the terminat- ed employees with diligence, and the collateral dissatis- faction of Thompson is a valid factor to consider. Given the nature of construction projects and variables of per- ception, I am not persuaded that any of the grounds' ad- vanced by the General Counsel is sufficient to make out a violation. CONCLUSION OF LAW I accordingly conclude that the General Counsel has failed to prove Respondent unlawfully discharged any employees or participated in their unlawful discharge from the employment of Eagle. [Recommended Order for dismissal omitted from pub- lication.]