Babcock & Wilcox Construction Co., Inc.

620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Babcock & Wilcox Construction Co., Inc. and Dennis McCarty and Raymond Paul Davis. Cases 20-CA-20898 and 20-CA-21027 April 25, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 3, 1988, Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent filed an exception' and a support-, ing brief. The General Counsel filed an answering 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 exception and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative laW judge and orders that the Respondent, Babcock & Wilcox Construction Co., Inc., Marysville, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. The Respondent has excepted only to the judge's recommended rem- statement order. Joseph Norelli, Esq., for the General Counsel. William A. Ziegler, Esq. (Sullivan & Cromwell), for the Respondent. Dennis McCarty and Raymond Paul Davis, for them- selves. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding, in which a hearing was held on 27-28 October 1987 is based on unfair labor practice charges filed against Babcock & Wilcox Construction Co., Inc. (Respondent) by Dennis McCarty (McCarty) in Case 20- CA-20898 on 7 January 1987 and by Raymond Paul Davis (Davis) in Case 20-CA-21027 on 2 March 1987. The Regional Director for Region 20 of the National Labor Relations Board (the Board), on behalf of the Board's General Counsel, issued a complaint in Case 20- CA-20898 on 26 February 1987 and a complaint in Case 20-CA-21027 on 30 April 1987 and on 30 April 1987 issued an order consolidating these cases for hearing. The complaint in Case 20-CA-20898, as amended at the hearing, alleges in substance that Respondent violat- ed Section 8(a)(1) and (3) of the National Labor Rela- tions Act (the Act) by discharging McCarty on 26 Sep- tember 1986 because of his union and/or other protected concerted activities and violated Section 8(a)(1) of the Act when its Foreman Monte Manwill on or about 29 September 1986 threatened employees with discharge if they sought to enforce the collective-bargaining agree- ment that governed their terms and conditions of em- ployment. The complaint, in Case 20-CA-21027, alleges in substance that Respondent violated Section,8(a)(3) and (1) of the Act by refusing on 6 October 1986 to hire Davis because of his union and/or other protected con- certed activities. Respondent filed answers to the com- plaints in which it denies the commission of the alleged unfair labor practices 1 and in which, as amended at the hearing, it alleges as an affirmative defense that the al- leged unfair labor practices are cognizable under the pro- visions of the governing contractual grievance-arbitration machinery and that, under the circumstances, the Board should defer the exercise of its jurisdiction to the govern- ing contractual grievance-arbitration machinery. On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs of the General Counsel and Respond- ent, I make the following FINDINGS OF FACT J. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The setting Respondent, a Delaware corporation, is a contractor in the construction industry. During the time material it was building a powerhouse located in Marysville, Cali- fornia (the Project). The powerhouse, sometimes referred to in the record as a boiler, is 175 feet high, 50 yards long, and 20 yards wide. Respondent's construction workers, i.e., sheet metal workers, insulators, laborers, pipefitters, ironworkers, electricians, etc., were represent- ed by the several construction unions that normally rep- resent such crafts. The employees' terms and conditions of employment were established by a collective-bargain- ing agreement between Respondent and those unions (the Project Agreement) that by its terms lasted for the duration of the Project. Charging Parties McCarty and Davis are journeymen insulators and members of Local 16. They were em- ployed by Respondent on the Project: McCarty from 16 July through 26 September 1986 as an insulator foreman and Davis from 29 August to 1 October 1986 as a jour- neyman insulator.2 1 Respondent's answers admit it meets one of the Board's applicable discretionary jurisdictional standards and is an employer engaged in com- merce within the meaning of Sec. 2(6) and (7) of the Act Also Respond- ent's answers admit that International Association of Heat and Frost In- sulators and Asbestos Workers, Local Union No. 16, AFL-CIO (Local 16), the Union which represents the employees involved in this case, is a labor organization withm the meaning of Sec. 2(5) of the Act. 2 All dates hereinafter shall refer to the year 1986, unless otherwise specified. BABCOCK & WILCOX CONSTRUCTION CO. 621 Local 16 was a signatory to the above-described Project Agreement. It represented the journeymen and apprentice insulators employed on the Project and also represented the insulator foremen, because the Project Agreement covered foremen as well as journeymen and apprentices. Respondent's supervisory chain of command on the Project, insofar as the insulators were concerned, fol- lows. Project Manager Ken Null was in charge of the Project. Immediately subordinate to him was Project Su- perintendent Ed Frost. Under Frost in the chain of com- mand were four craft superintendents, one of whom was Gary Megan, the insulating superintendent. Reporting to Hargan were the insulating foremen who supervised the insulators employed on the Project. During the time material Respondent employed two insulator foremen, Charging Party McCarty and Monte Manwill. McCarty was the only insulator foreman on the job from 16 July to 29 August, when Manwill, who had been employed on the Project since 21 August as a jour- neyman insulator, was promoted by Hargan to the posi- tion of foreman because of the drastic increase in the number of insulators employed on the Project. Manwill was designated piping crew foreman with approximately 10 insulators under his supervision and McCarty, as fore- man, supervised approximately the same number of insu- lators on his crew. The complaints allege and Respondent's answers admit that Manwill in his position as foreman was a supervisor within the meaning of Section 2(11) of the Act. Re- spondent contends that McCarty, as was Manwill, was a supervisor within the meaning of Section 2(11) of the Act. This contention is supported by the testimony of McCarty, Hargan, and Manwill to the effect that as fore- men McCarty and Manwill performed the same supervi- sory duties and possessed the same supervisory responsi- bilities and authority. The General Counsel did not rebut this uncontradicted testimony. Under the circumstances, I find that Respondent has established that during McCarty's employment as a foreman, 16 July through 26 September, he was a supervisor within the meaning of Section 2(11) of the Act.3 2. McCarty's efforts to look at job specifications During the six prior occasions when McCarty was em- ployed as a foreman by Respondent on other construc- tion jobs, there had always been a set of job specifica- tions available to McCarty so he could determine wheth- er the insulators under his supervision were doing their insulation work according to the specifications called for by the job. Regarding the Project, however, Insulating Superintendent Hargan testified Respondent did not maintain a set of job specifications for the insulation 3 Even if McCarty, in certain respects, may have failed to exercise his supervisory authority to the same extent as Manwill, it would not detract from the undisputed fact that McCarty possessed the same supervisory authority as Foreman Manwill, which authority the General Counsel conceded was sufficient to make Manwill a statutory supervisor. The fail- ure of a supervisor to exercise Ins supervisory authority does not change his employment status from that of a supervisor to the status of a rank- and-file employee. Leonard Niedernter Co., 130 NLRB 113, 114-115 (1961), and cases cited therein. work. He testified that to be sure the Project's insulation work was properly done he was guided by a "Brill book" that had to be used with a set of appropriate plans to make sense to the reader because, as he further testi- fied, "[W]ithout breaking out a set of plans, this Brill book does you absolutely no good." Local 16 maintains a published "Code of Workman- ship," setting out procedures for applying insulation, which was supposed to be strictly adhered to by Local 16's members, unless it had been superseded by written job specifications. The code states that the responsibility for adherence to the code "rests with the job foreman as well as the mechanic who does the work." Local 16's collective-bargaining agreement with other employers in the area contains a provision that written instructions of the employer shall take precedent over specifications, but that job specifications shall be followed in the absence of contrary written instructions from the employer. This provision was not included in the Project Agreement nor is there evidence Respondent had otherwise agreed to this provision nor is there evidence that Respondent agreed to include Local 16's "Code of Workmanship" in the Project Agreement. During McCarty's employment as foreman on the Project, he asked Hargan on numerous occasions to look at the job specifications for insulation work that the insu- lators under his supervision were doing. Each time Hargan told him that there were no specifications avail- able. McCarty explained to Hargan that he wanted to check Hargan's instructions against the particular specifi- cations for the work involved because he thought that Hargan was directing him to have the insulators he su- pervised install the installation differently than had been the case on the other powerhouse jobs on which McCarty had worked for Respondent as a foreman. McCarty told Hargan he was afraid that if the work being done by the insulators was not done according to the job specifications, that McCarty, as foreman, would be blamed. On other occasions when Hargan directed McCarty to have insulators do something that was obvi- ously incorrect, McCarty asked him to reduce his in- struction into writing, which Hargan refused to do. McCarty complained to Local 16's business agent An- drews several times about Hargan's refusal to supply him with a set of specifications and about Hargan's refusal to give him written instructions. Andrews told McCarty to follow Hargan's instructions and Andrews would try to straighten out the matter.4 3. McCarty's 26 September layoff On Friday, 26 September, Respondent employed 22 in- sulators at the Project. They were supervised by Fore- 4 The above description of McCarty's conversations with Hargan about the job specifications and his requests that Hargan reduce certain work instructions into writing are based on the testimony of McCarty, whose testimonial demeanor was good. Hargan did not deny this testimo- ny I considered that McCarty's prehearing affidavit did not mention his efforts to have Hargan show him the job specifications and considered there is certain language in the affidavit that might warrant the inference that Hargan had shown lum the job specifications. Nevertheless, I have credited McCarty's testimony because It was undemed and his testimonial demeanor was good 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD men McCarty and Manwill, each of whom supervised approximately 10 insulators. Manwill supekdsed the "piping crew," the insulators who applied the insulation to the pipes leading to and from the boiler. The record also reveals that by the end of the day on 26 September, Respondent was finished insulating the boiler and that what remained for the insulators was to insulate the pipes. It is also undisputed that Insulating Superintendent Hargan did not expect to have to lay off a single insula- tor; he believed that when the work on the boiler was finished on 26 September that the 22 insulators he em- ployed would continue to be employed applying the in- sulation to the piping. On 25 September, however, Hargan was told by Project Manager Null there was in- sufficient piping work for all the insulators, because Re- spondent unexpectedly had failed to receive authoriza- tion to insulate some of the piping, therefore Null in- structed Hargan to lay off some of the insulators. On 26 September at approximately 8 a.m. Hargan met with Foremen McCarty and Manwill in his office. He told them there would be a reduction in force that day because the boiler was completely insulated. He stated that Foreman McCarty would no longer be a foreman, but would work with the tools as a journeyman. Hargan asked McCarty and Manwill to get together and make out a layoff list and to submit that list to him. McCarty answered by stating that because Manwill would be sti- pervising the remaining insulators and because McCarty would be working as a journeyman under Manwill's su- pervision, that McCarty did not feel he should be in- volved in making out a layoff list. Hargan stated he wanted McCarty to get together with Manwill and make out such a list. McCarty repeated his refusal and Hargan did not insist. As a matter of fact McCarty did not meet with Manwill to make out a layoff list, nor did he other- wise make out such a list. This description of what occurred at 8 a.m. on 26 Sep- tember, when McCarty and Manwill met with Hargan, and the finding that McCarty did not make out a layoff list, is based on McCarty's testimony, which was contro- verted by Hargan's testimony, as follows. Hargan testified that on Monday, 22 September, he de- cided that the insulation work on the boiler would be finished by the end of the day on Friday, 26 September, leaving only the piping insulation, and further testified that on 22 September he decided that after 26 September Respondent would employ only one insulator foreman, Piping Crew Foreman Manwill, who would supervise all 22 of the Project's insulators and that McCarty would continue in Respondent's employ and work with the tools under Manwill's supervision. Hargan also testified that on 22 September he personally informed McCarty of this decision; he specifically told him that effective Monday, 29 September, he would be working with the tools as a journeyman insulator. Regarding the layoff of insulators, Hargan testified that on the afternoon of 25 September, after learning he would have to lay off some of the insulators because of Respondent's failure to secure releases to do some of the piping work, he met with McCarty and Manwill and asked them to "get a list of the personnel on the project that were basically the least productive." He also testi- fled that McCarty responded by stating that because McCarty was not going to be employed as a foreman, he did not feel he should make such a list, but agreed to do this after Hargan asked him to "please" do so. Later that afternoon, according to Hargan, both Manwill and McCarty brought him separate lists of insulators whom they had selected as being the least productive. He fur- ther testified when they handed him their lists there was absolutely no conversation about the names on the lists; they simply gave him their lists and left. I credit McCarty's above-described testimony of what occurred between McCarty, Manwill, and Hargan on the morning of 26 September and credit his testimony that he did not submit a layoff list to Hargan. My reason for crediting his testimony and rejecting Hargan's is that McCarty's testimonial demeanor, which was good, was better than Hargan's, which was poor. In addition, the testimony of Respondent's witness Manwill failed to cor- rOborate Hargan's in at least one significant respect and contradicted him in other respects. Thus, when Manwill testified about the meeting among himself, McCarty, and Hargan, where Hargan asked them to submit a layoff list, Manwill failed to corroborate Hargan's testimony that McCarty agreed to submit such a list. Indeed at one point in his testimony, Manwill contradicted Hargan by testifying that when Hargan asked Manwill to prepare and submit a layoff list, that McCarty was not present and that it was Manwill, not Hargan, who "carried the word to [McCarty] that [Hargan] wants both of us to make up a list." Manwill gave this testimony during cross-examination after testifying initially that Hargan "came to both McCarty and myself' and asked for a layoff list. I note that Manwill's testimonial demeanor was poor when he testified about the events surrounding the 26 September layoff. In evaluating Hargan's credibility it is also significant that Manwill testified that Manwill was not informed by Hargan until the afternoon of 26 September that Manwill would be the only insulator foreman employed. I find it unbelievable that if as early as 22 September, Hargan had decided that effective 29 September Manwill would supervise all the approximately 22 insulators on the job, rather than only 10, and on 22 September informed McCarty of this decision, that Hargan on 22 September would not have also notified Manwill, whose job would be drastically effected by Hargan's decision. I am per- suaded that Hargan's failure to inform Manwill until the afternoon of 26 September warrants the inference that no such decision was made as early as 22 September and that, as McCarty testified, Hargan did not inform him until the morning of Friday, 26 September, that McCarty would be employed on Monday, 29 September, as a jour- neyman, rather than as a foreman. I am also persuaded that Hargan's failure prior to 26 September to notify either McCarty or Manwill of his decision to make Man- will the only insulator foreman and to have McCarty work with the tools as a journeyman warrants the fur- ther inference that no such decision was made until 26 September, when Hargan notified McCarty and Manwill that due to the reduction in force McCarty would no BABCOCK & WILCOX CONSTRUCTION CO. 623 and that McCarty was being reassigned to work as a journeyman with the tools. Andrews asked the local journeymen whose names were on Manwill's layoff list, whether, as Manwill had represented, they had volun- teered to be laid off. They answered in the affirmative. Andrews read off the names of the insulators from Man- will's list and stated that they were the insulators who would be laid off. He also stated that because one of the insulators listed for layoff was Local 16's Project stew- ard, Dale Wright, that Andrews was appointiag McCarty to replace Wright as Local 16's steward. Wright handed his steward's badge to Andrews who, in turn, handed it to McCarty who pinned it to his shirt. Manwill then declared that come Monday morning things were going to change "around there" and stated that he was not going to put up with any more of "McCarty's shit." McCarty responded by stating that what would change on Monday morning was that Fore- man Manwill would not be able to send old men in the rain to work under unsafe conditions on wet scaffolding. Manwill denied having done this. However, both jour- neyman Wright and apprentice Potter, in response to McCarty's questions, told Andrews, in Manwill's pres- ence, that McCarty's accusations were true and that Manwill had told them to work on wet scaffolding under unsafe conditions or to take their tools and leave the Project. Andrews told the insulators that under the law no worker could be penalized for refusing to work under unsafe working conditions and if anything like that oc- curred in the future they should call Local 16. The meet- ing concluded shortly thereafter. The above description of what was stated in the em- ployees' change trailer during the morning of Friday, 26 September, is based on a composite of the testimony of McCarty and Andrews that in certain significant respects was corroborated by the testimony of insulator Gary Davis, who entered the trailer with the other insulators at the 10 a.m. coffeebreak. Their testimony was contro- verted by Manwill's testimony in all significant respects, as follows. Manwill places the meeting as occurring during the employees' lunchbreak, rather than their coffeebrealc. He testified that Andrews asked him about the layoff and that he replied by stating there was going to be a layoff and that when Andrews asked who would be laid off, Manwill told him that the only people he knew would be laid off for sure were those who had volunteered for layoff, namely, Freeman, Duncan, and Wright. Manwill further testified that he did not at that time have in his possession a list of the employees who had been selected for layoff, and also denied having a discussion about whether the apprentices had volunteered for layoff. Manwill further testified that Andrews stated that, be- cause Wright had volunteered for layoff, McCarty would be the new steward, but denied that Wright's steward badge was handed to McCarty. Also Manwill denied that, after hearing Andrews say that McCarty would be the new steward, Manwill expressed the above-described remarks attributed to him by the testi- mony of McCarty, Andrews, and Davis. He also denied their further testimony that there was a discussion about longer be foreman on 29 September, but would be work- ing with the tools under Manwill's supervision. To sum up, I find that at 8 a.m. on 26 September Hargan notified both Manwill and McCarty that because the boiler was completely insulated there would be a re- duction in force that day, that due to this reduction in force McCarty would be reassigned the next workday from his position as foreman to the position of journey- man insulator, asked McCarty and Manwill to get to- gether and submit a single list of employees for layoff, but when McCarty refused to help make out such a list did not press this request insofar as McCarty was con- cerned, and McCarty did not in fact meet with Manwill to make out a layoff list or otherwise make out such a list. On 26 September, shortly after the above-described 8 a.m. meeting in Hargan's office among McCarty, Man- will, and Hargan, McCarty encountered Local 16's busi- ness agent, Willard Andrews, who was at the project to meet with management to discuss an employee's griev- ance. McCarty advised Andrews there would be a layoff of insulators that day and that he was being reassigned to work with the tools. Later that morning, after the conclusion of his griev- ance meeting, Andrews met with McCarty and Manwill, sometime between 9:30 and 10 a.m., in the employees' change trailer. When they entered the change trailer Manwill was sitting at a table with a piece of paper in front of him containing a list of names and was looking through employees' timesheets. In response to Andrews' question, Manwill acknowledged there would be a layoff of insulators that day and stated that seven insulators would be laid off. In response to Andrews' further in- quiry, Manwill stated that the seven had already been se- lected and showed Andrews the piece of paper he had before him that contained the names of seven insulators: apprentices McLaughlin and Wray and journeymen Wright, Freeman, Duncan, Matte, and Blanchard. Matte and Blanchard were travelers, whereas the other five were members of Local 16. Andrews asked what McCar- ty's position would be after the insulators had been laid off He noted that McCarty had been supervising the boiler crew and that the insulation work on the boiler was now complete. Manwill responded by stating that McCarty was being reassigned to work with the tools as a journeyman. Andrews also asked why Manwill was laying off local people when there was still one traveler employed on the job. Manwill responded by stating that all the local people named on the list had volunteered to be laid off. McCarty questioned whether apprentices McLaughlin and Wray had asked to be laid off. After leaving the change trailer momentarily to determine whether this was so, Andrews and McCarty returned and Andrews advised Manwill that McLaughlin and Wray had denied they had volunteered to be laid off, whereupon Manwill scratched their names from the list. Andrews then asked Manwill whether this was the com- plete or fmal layoff list. Manwill assured Andrews that it was. At this point in time the Project's insulators came into the change trailer for their 10 a.m. coffeebreak. Andrews told the insulators that there would be a layoff that day 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether Manwill had assigned insulators to work on scaffolding in the rain under unsafe working conditions. I rejected Manwill's testimony because his testimonial demeanor was poor, whereas McCarty's and Andrews' testimonial demeanor was good when they testified about the events of 26 September. Moreover, McCarty's and Andrews' testimony concerning what was stated in the change trailer on 26 September was mutually corrobora- tive in virtually all significant respects and in no case did they contradict one another and in certain significant re- spects their testimony was corroborated by Davis' testi- mony. On 26 September at approximately 1 p.m. Manwill spoke to McCarty and told him he no longer would have to worry about any of the local people being laid off while there was still a traveler employed on the Project, because Malone, the remaining traveler on the Project was number 6 for layoff and that McCarty was number 7 for layoff and stated, "[P]ick up your shit and get the fuck off my job." McCarty did not leave right then, however, but waited for his paycheck and left the Project with the rest of the laid-off workers. The aforesaid description of what Manwill said to McCarty when he notified -him about his layoff is based on McCarty's testimony. Manwill denied making any of these remarks. Rather he testified he simply told McCarty he had been laid off and to pick up his tools and gave him his paycheck. Malawi11 also testified that, before McCarty left the Project that day, McCarty spoke to some of the insulators who had not been laid off and told them he had been laid off and also told them he thought "the whole crew should walk with him." Man- will, according to his testimony, reminded the insulators that such a work stoppage would violate the terms of the Project Agreement. Initially Manwill was unable to recall where McCarty was when McCarty made this statement, but later testified that McCarty made it while speaking to the employees in the change trailer. Manwill was not able to remember the name of any one of the insulators to whom McCarty and Manwill spoke to on this occasion. I reject Manvvill's above-described testimony in its en- tirety and credit McCarty's description of what was stated to him by Manwfil when Manwill notified him of his selection for layoff. My reason for doing so is that Manwill's testimonial demeanor was poor, whereas McCarty's was good. I recognize McCarty did not deny Manwill's testimony that, after Manwill had told McCarty he was being laid off, McCarty told some of the insulators that he thought "the whole crew would walk with him." Nevertheless, because of Manwill's poor testimonial demeanor and because, as I have found, infra, Manwill falsely testified that on another occasion McCarty asked insulators to engage in a work stoppage over an employee's termination, I reject his further testi- mony that on this occasion McCarty attempted to per- suade insulators to stop work and walk off the job be- cause of his termination. On 26 September, shortly after Manwill told McCarty he had been laid off, insulator Gary Davis, who had heard about McCarty's layoff, spoke to Manwill and asked, "What's going on?" 5 Manwill responded by stat- ing, "I'm not going to let nobody talk to me like that, in that manner." When Davis asked, "In what manner?" Manwill stated, "in the change trailer during coffee time." Davis pointed out to Manwill that what had oc- curred in the change trailer earlier that day during cof- feebreak among Andrews, McCarty, and Manwill "was not personal, that was a Union affair, a Union business affair, and that at no time was none of that personal." Manwill responded, "I'm not going to let anybody talk to me like that." The conversation ended with Davis stating and Manwill denying that Manwill had a personal vendetta against Local 16 because he had been removed from his position as Local 16's business manager and was taking it out on the membership. 6 I am of the opinion that when viewed in the context of what occurred in the change trailer earlier that day during coffeebreak period—which has been described in detail, supra—Man- will's statement that he was not going to let anyone talk to him as the way he had been talked to in the change trailer during coffeebreak was an obvious reference to the way in which McCarty had spoken to him during the earlier coffeebreak. As will be discussed in more detail infra, immediately following his 26 September layoff, McCarty went to Local 16 and filed a contractual grievance against Re- spondent protesting his termination. The next workday, Monday, 29 September, Local 16's business agent An- drews visited the Project to discuss McCarty's grievance with management. Andrews arrived at the Project just before starting time and shortly thereafter spoke to Insulator Foreman Manwill and Insulating Superintendent Hargan separate- ly. He told them he was there to talk about McCarty's layoff. Manwill responded by stating that Andrews was wasting Andrews' time because McCarty was not going to be put back on the job. Hargan responded by stating, "He [Hargan] did not have anything to do with that [re- ferring to McCarty's layoff], that he'd told Monte [Man- will] to lay off seven people, and he did not understand where the five came in at."7 Later that same morning Andrews met with Project Manager Null and Project Superintendent Frost and they discussed McCarty's termination. Andrews told them that Local 16 believed that because McCarty was Local 16's Project steward that Respondent had violated the Project Agreement when it laid him off. Null responded 5 The description of Davis' conversation with Manwill is based on Davis' credible testmiony that Manwill did not deny 6 The record reveals that after having held the position of Local 16's business manager for several years, Manwill, in 1985, was forced to resign from that position 'The above description of Andrews' 29 September conversations with Manwill and Hargan is based on the testimony of Andrews, whose testi- monial demeanor was good. Manvvill did not deny the remarks attributed to him. However Hargan testified that Andrews initiated the conversa- tion with him by accusmg bun of laying off seven rather than five insula- tors in order to lay off McCarty, that when Hargan denied this and ex- plained that the original plan was to lay off seven insulators and that seven were in fact laid off, Andrews warned Hargan if liars= wanted to play games that Local 16 could also play games. I credited Andrews' tes- timony rather than Hargan's because Andrews' testimonial demeanor, which was good, was better than Hargan's, which was poor. BABCOCK & WILCOX CONSTRUCTION CO. 625 by stating that they were not aware McCarty was job steward and if they had known they would not have laid him off, but because he had already been laid off they were going to let the layoff stand, as they "did not feel it was in their best position for [McCarty] to be the job steward," but if Respondent ever needed to employ addi- tional insulators at the Project, they stated they would have no objections to having McCarty back on the job. Null complained to Andrews that McCarty had been talking to the customer on the jobsite and had been ques- tioning the job specifications and the workmanship of the work being done on the job. Also either Null or Frost stated that McCarty was the cause of a lot of "labor dif- ficulties on the job" involving the insulators. Andrews replied by stating he was unaware of any labor difficul- ties occurring at the Project prior to Manwill being made foreman and, with respect to the statement that McCarty had questioned the workmanship on the job, told Null and Frost that several of the insulators had complained to Andrews about the way the insulation work was being don; that they did not feel the job spec- ifications were being followed and had mentioned to him that the work was "shoddy." Frost replied that, if An- drews wanted to engineer the job and guarantee it, he should be Frost's "guest." Andrews declined the offer and stated that Local 16's position was that the work being done on the job should be done correctly and ac- cording to the job specifications. This ended the meet- ing.8 4. Davis replaces McCarty as Local 16's Project steward Raymond Davis, a journeyman insulator and a member of Local 16, began work 29 August at the Project. On the morning of 29 September Local 16's business agent Andrews, after meeting with Project Man- ager Null and Project Superintendent Frost to discuss McCarty's termination, went to where Davis was work- ing at the Project and appointed him Local 16's steward in place of McCarty and gave him a steward button that he pinned on. Andrews also told Davis to locate and look at a set of specifications for the insulation work being done and to make sure that the work was being done according to the job specifications. Andrews did not explain his reasons for wanting Davis to do this. Davis did not ask for an explanation because he felt it was important to check the insulation work against the specifications inasmuch as he believed the insulation work was not being done correctly due to incorrect in- structions from supervisors and also thought the way the insulators were being instructed to do their work would result in the loss of work to the sheet metal workers. This was something that the insulators had previously discussed among themselves. On 29 September, shortly after Andrews appointed Davis to be Local 16's steward, Foreman Manwill came to Davis and told him he had heard Davis had been ap- pointed steward. Davis acknowledged this was true and told Manwill he would like to see the job specifications. 8 The description of Andrews' above-described meeting with Null and Frost is based on Andrews' credible testimony that was not denied Manwilf replied by stating, "Remember what happened to the last guy that asked too many question's." When Davis asked, "What do you mean?" Manwill did not answer; he laughed. Subsequently, approximately 1 hour later during lunchbreak, Manwill told Davis that Insulat- ing Superintendent Hargan would show him the specifi- cations.9 When Davis, with Manwill, entered Hargan's office on 29 September, Hargan asked why Davis "wanted to go through this again." Davis replied he had not previously spoken to Hargan about the specifications and wanted to see them. Hargan replied by stating, "he had felt bad at what had happened." Davis asked, "meaning what?" Hargan answered that "he did not want to step on any- body's feet." Davis repeated that he wanted to see the specifications. Hargan asked why. Davis told him that the insulators had requested it. Hargan told him there were no specifications. Davis stated that if that was Har- gan's answer, that Davis would communicate it to Local 16. Hargan then stated he would show Davis "what he had" and showed him a "diagram piping book," which is known as the Brill book. It is not a set of specifications, but consists of diagrams showing the way insulation should be applied on the job and, as noted supra, makes no sense without a set of plans.1° 5. Davis quits his employment On 1 October Davis quit his employment at the Project. There is a dispute about what occurred when he quit. Foreman Manwill testified that on 1 October Davis and Littlejohn, another insulator who commuted to and from work with Davis, arrived for work a little late and while they changed into their work clothes were told by Manwill they had better start getting to work on time. When Davis replied that it was a long drive, Manvvill told them they would just have to make allowances for the long drive and leave for work earlier each morning. Manwill further testified that when the employees came out from the change trailer, Manwill assigned Davis to work with Howard Johnson, that Davis refused to accept the assignment to work with Johnson whom Davis called a "fucking retiree," Manwill testified that, when he insisted Davis work with Johnson, Davis re- 9 The description of Manwill's 29 September conversations with Davis is based on Davis' testimony. Manwill testified that when Davis asked to look at the specifications, Manwill told him there was only the Brill book and that Manwill took Davis to Hargan's office and Hargan showed hun the Brill book. Manwill denied telling Davis, "Remember what happened to the last guy who asked too many questions" or words to that effect. I have credited Davis' and rejected 'Manwill's testimony because Davis' testimonial demeanor was better than Manwill's, which was poor. 10 The description of Davis' 29 September conversation with Hargan is based on Davis' testimony. Hargan testified that when Davis asked to see the specifications that he promptly showed him the Boll book and usmg the diagrams in that book tried to explain to Davis what Davis had expressed concern about. Hargan denied he responded to Davis' request to see the specifications by stating he was sorry about what had hap- pened. He also denied telling Davis that he did not want to step on any- one's feet I have credited Davis' testimony and rejected Hargan's be- cause Davis' testimonial demeanor was better than Hargan's, which was poor. 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD moved his safety belt and threw it across the yard and told Manwill, "I quit." Insulating Superintendent Hargan testified he waS in the vicinity of the change trailer at the start of the work- day on 1 October, when he observed Davis come out of the change trailer looking very upset. He further testified that he overheard Foreman Manwill assign Davis to work with Johnson and Davis refused the assignment. Hargan further testified he heard Davis tell Manwill he was not going to work with a "fucking retiree" and that, when Manwill said something else to Davis, Davis told Manwill he quit and went back into the change trailer. Hargan testified Hargan followed Davis into the change trailer and asked him "to please calm down" and go back to work, but that Davis replied by stating he was not going to work with Manwill, whom he called a "son of a bitch," and picked up his tools and left the Project. Davis testified that when he arrived for work on 1 Oc- tober, Manwill stated something to the effect that Davis and the other insulators with whom he commuted to and from work would have to start getting there a little earli- er. Davis testified that the reason he quit that morning was he felt Manwill had unfairly singled him out for being late. Davis denied telling Hargan that he was not going to work with Manwill and also denied telling Manwill that he would not work with Johnson. Rather he testified that Manwill did not assign him to work with Johnson, but assigned him and Littlejohn to work to- gether doing the work they had been doing the previous workday. In evaluating the above-described disputed testimony concerning the events of 1 October, I considered that Davis' testimonial demeanor was better than Manvvili's and Hargan's, which was poor. Also relevant in evaluating the conflicting testimony is the 7 November memo prepared and signed by Insulat- ing Superintendent Hargan that described what occurred on 1 October when Davis quit. This memo reads as fol- lows: The reason Ray Davis quit was that morning he had come to work a few minutes late Monte Man- will told him that he was going to have to leave home a little earlier so that he could get to work on time. At this time Ray Davis replied we had to con- sider how far he had to drive to work everyday in a ragging manner. When Mr. Manwill told Mr. Davis he was going to work with Howard Johnson with Mr. Davis reply- ing he was not going to work with a retiree and that he quit. Sec.5-1 The employer shall have the right of rejection. Company policy not to rehire for 30 days after quit. Hargan prepared and submitted this memo to Eddie Story, an organizer for Local 16's International Union, in response to Story's investigation of the grievance against Respondent filed by Davis with Local 16 concerning Re- spondent's 6 October refusal to rehire him, when he was dispatched to the Project by Local 16. In the 7 Novem- ber memo Hargan did not mention Davis' statement that he would not work under Manwill's supervision. Hargan failed to mention it even though, as described infra, Hargan and Manvvill testified in effect that one reason Respondent refused to employ Davis on 6 October was because when Davis quit he had also told Hargan he would not work under Foreman Manwill's supervision. Considering the significance to Respondent of this state- ment, I fmd it difficult to believe that if the statement had been made by Davis to Hargan, that Hargan would have omitted it from his 7 November memo. Hargan, a witness for Respondent, failed to explain this omission from the memo. Also relevant in evaluating whether on 1 October Davis stated he would not work under Foreman Man- will's supervision and refused to obey Manwill's job as- signment is that in certain significant respects Hargan's testimony concerning those matters is inherently incredi- ble. It is unbelievable that after hearing Davis refuse to obey the work assignment of his immediate supervisor, Foreman Manwill, that Hargan would have followed Davis into the change trailer for the purpose of pleading with him to go back to work and to change his mind about quitting. Davis' act of gross insubordination would normally be grounds for his discharge. Indeed Foreman Manwill volunteered the testimony that, if Davis had not quit on 1 October, Manwill would have discharged him for being insubordinate. Hargan failed to explain why, despite his knowledge that Davis had been grossly insub- ordinate to his foreman, Hargan followed him into the change trailer and pleaded with him to return to work." Hargan's failure to explain this unusual conduct, coupled with his failure to explain his omission in the 7 Novem- ber memo of Davis' alleged refusal to work under Fore- man Manwill's supervision, warrants the inference that Hargan fabricated his testimony that he followed Davis into the change trailer to persuade him not to quit, at which time Davis stated he would not work under Man- will's supervision. Also significant in evaluating Hargan's credibility con- cerning his testimony that Davis told him that he would not work under Manwill's supervision is the fact that Hargan and Manwill gave conflicting testimony as to when Hargan told Manwill that Davis said this. Manwill testified that he was informed by Hargan about this sometime prior to 6 October and testified that it was be- cause of this knowledge that on 6 October, when he ob- served that Davis had been referred to the Project by Local 16, he went to Hargan's office and asked Hargan whether they should refuse to employ Davis. Hargan, on the other hand, testified in effect that it was on 6 Octo- ber when Manwill came to his office and asked what they should do about Davis that he told Manwill that Davis had stated he would not work for Manwill and told Manwill that because of this he did not think Re- spondent should employ him. Considering that Davis' testimonial demeanor was better than Manwiffs or Hargan's; considering Hargan's failure in his 7 November memo to indicate that Davis had told him he would not work under Foreman Man- " I also note, as described infra, that for some unexplained reason this alleged insubordination played no part m Respondent's decision on 6 Oc- tober to refuse to rehire Davis BABCOCK & WILCOX CONSTRUCTION CO. 627 will's supervision; considering the inherent implausibility of Hargan's testimony that, after observing Davis acting grossly insubordinate toward Foreman Manwill, Hargan followed him into the change trailer and pleaded with him to return to work and not quit; considering the in- consistency in Hargan's and Manwill's testimony as to when Hargan informed Manwill that Davis had stated he would not work under Manwill's supervision; and con- sidering Respondent's failure in connection with its refus- al to employ Davis on 6 October to indicate the refusal was based even in part on Davis' alleged refusal to obey Foreman Manwill's work assignment, it is for all these considerations that I am persuaded that when Davis quit his employment at the Project on 1 October that he did not refuse to obey Manwill's work assignment or tell Hargan that he would not work under Manwill's super- v ision.12 .6. Respondent's 6 October refusal to hire McCarty and Davis On 6 October, pursuant to a request from Respondent ,TA3 dispatch two or three insulators from its hiring hall to title Project, Local 16 dispatched McCarty and Davis." They arrived at the Project on 6 October at the start of the workday and reported to the office of Respondent's timekeeper that was in the same trailer as Project Man- ager Null's office. They were outside of that trailer in front of the window of the timekeeper's office waiting for the timekeeper to process the paperwork necessary for their employment when Foreman Manwill ap- proached them and asked what they were doing there. He was informed by one of them that they had been re- ferred by Local 16 to the job in response to Respond- ent's request for insulators. Manwill answered by stating, "We'll see about that" and told them they had wasted their time by making the trip out to the Project because they were not going to work there. Manwill then walked into the timekeeper's office and instructed the timekeeper that McCarty and Davis "are not going to work," whereupon the timekeeper took back from McCarty and Davis the paperwork she had given them to fill out. McCarty and Davis then entered the trailer and, with 12 I considered the record reveals that Davis' reliability as a witness in certain respects is suspect; he at first denied having discussed his testimo- ny prior to the hearing with counsel for the General Counsel, but there- after admitted he had done so, he falsely testified there was a space or box on his 1 October termination slip that Respondent could have checked to indicate he was not eligible for rehire, and he testified he was unable to remember ever authorizing the Board's Regional Director to withdraw his charge in Case 20-CB-7I79 filed against Local 16's Interna- tional Union, despite the fact that counsel for the General Counsel repre- sented that the Board's file in that case contains a sworn statement from a Board agent stating that Davis had verbally authorized the Regional Di- rector to withdraw that charge. In crediting Davis', rather than Hargan's and Manwill's testimony, I have considered these circumstances, but for the reasons set forth previously I am persuaded that Davis was a more credible witness than either Manwill or Hargan. 13 Under the terms of the Project Agreement Respondent was obhgat- ed to hire applicants for insulating work through Local 16's hiring facih- ty, provided that Local 16 referred the applicants within 48 hours from Respondent's request. Respondent had the contractual right to reject any of the applicants referred the permission of Insulating Superintendent Hargan, 14 Davis used one of the telephones there to phone Local 16's business agent Andrews to tell him what had hap- pened to himself and McCarty when they reportA for work. In the meantime, McCarty overheard Manwill, who was standing in the doorway to Null's office, loudly stating to Null that he did not want McCarty or Davis on his job. Null remarked that McCarty had worked for him previously and asked Manwill what the problem was. Manwill replied that McCarty and Davis were "troublemakers" and he did not want them on the job. Null responded by stating that because Manwill was the foreman that if he did not want McCarty and Davis working under his supervision, that Null would abide by his decision. About this point in time, Davis, who had been using the telephone in the trailer to speak with busi- ness agent Andrews, turned the phone over to McCarty who spoke to Andrews. Davis, in the meantime, went into Null's office and showed him the separation slip, which had been given to him by Respondent on 1 Octo- ber when he quit his employment at the Project. Davis stated to Null that nowhere on the termination slip did it say that Davis was not eligible for rehire. McCarty, at this point, told Null that business agent Andrews wanted to speak to him Null stated he did not want to speak with Andrews and stated that if Andrews had problems concerning Respondent he should just file another griev- ance. Manwill ordered Davis and McCarty to leave or he would have them arrested. McCarty stated that he felt that he and Davis were entitled to receive 2 hours of showup time" and were also entitled to an explanation for Respondent's refusal to employ them. Manwill screamed that if they did not leave he would call the police and have them arrested. McCarty asked whether this was Respondent's position, Null stated, "yes," and McCarty and Davis left the trailer and the Project. The above description of what happened on 6 October when McCarty and Davis were dispatched by Local 16 to the Project is based on a composite of McCarty's and Davis' testimony. Foreman Manwill's testimony contra- dicted Davis' and McCarty's in several significant re- spects, as follows. He denied speaking to McCarty and Davis while they were outside of the trailer at the time- keeper's office window. He testified that when he spoke to Project Manager Null, he told Null that McCarty and Davis were on the jobsite having been referred for work by Local 16 and that Manwill and Hargan recommended that Respondent not employ either of them Manwill fur- ther testified that at this point, McCarty and Davis, who had followed him into the trailer, spoke to Null, but Manwill was unable to remember what they stated to Null. He also testified Null spoke to Davis and McCarty, but was also unable to remember what Null stated to them. Manwill denied telling Null that Davis and McCarty were "troublemakers," but admitted telling 14 The record reveals that on 6 October Hargan had only momentarily entered the trailer where Null's and the timekeeper's offices were located and was not present there on 6 October during the times material. '5 The Project Agreement provides that "[Alny employee reporting for work and for whom no work is provided-shall receive pay for two (2) hours at the appropriate rate for so reporting." 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Null that he thought they would create a "problem" if they returned to the job and further testified he also told Null that McCarty, but not Davis, probably had 2 hours of showup time coming to him because of Respondent's refusal to employ him, and that at this point Davis "went into a threatening motive with Kenny Null" and that Null directed Manwill to get Davis and McCarty out of his office, and that when Manwill asked them to leave that Davis tried to use one of the telephones in the trail- er and when Manwill told him to use a phone down the road that Davis threatened to "get" Manwill and threat- ened to shoot him. I have credited McCarty's and Davis' testimony about what occurred on 6 October when Local 16 dispatched them to the Project and rejected Manwill's testimony, because Manwill's testimonial demeanor was poor, whereas Davis' and McCarty's was good when they tes- tified about those events. I also note that although Project Manager Null was involved in some of the events of 6 October and although it appears he was still in Respondent's employ at the time of the hearing," Null did not testify. Under the circumstances, and con- sidering the fact that Null is a member of management, Respondent's failure to call him as a witness warrants the inference that he would have testified adversely to Re- spondent about the events that occurred on 6 October. See International Automated Machines, 285 NLRB 1122 (1987). 7. Respondent's reasons for McCarty's layoff McCarty was employed on the Project as an insulator foreman from 16 July through 26 September, when, as described in detail supra, he was laid off with six other insulators. He has been a journeyman insulator for at least 20 years and had been previously employed by Re- spondent as an insulator foreman on approximately six different jobs that involved the insulation of power- houses and turbines. He was never terminated by Re- spondent for any reason other than for lack of work. Respondent's Project Insulating Superintendent Hargan, who was McCarty's immediate supervisor, testi- fled he was dissatisfied with McCarty's work as foreman for the following reasons: McCarty was insubordinate and abusive toward Respondent's Sheet Metal Superin- tendent Jackie Smith; McCarty was responsible for work stoppages; the insulators McCarty supervised did not start work on time; McCarty had "bull sessions" during working time with the insulators he supervised; and McCarty failed to follow Hargan's instructions concern- ing job assignments. Hargan further testified he was the one who selected McCarty to be one of the insulators in- cluded in the 26 September layoff and that his reason for selecting McCarty for layoff was that on 25 September, when Project Manager Null instructed him to lay off several insulators, Null specifically told him to lay off one of the two insulator foremen. Hargan testified that he selected McCarty for layoff, rather than Foreman Manwill, because of the above-described problems he had experienced with McCarty's work as foreman. 16 In its answers to the complaints Respondent admitted that Null was still in its employ. Hargan, in support of his testimony that McCarty was insubordinate and abusive to Respondent's Sheet Metal Superintendent Smith, testified about three specific in- stances. Once Hargan overheard McCarty tell Smith over the walkie-talkie radio "to get his goddam sheetme- tal out of my way" and that when Hargan went to where McCarty was working he found there were no problems because Smith had kept the job clean. On an- other occasion, McCarty spoke to Hargan in Smith's presence and told Hargan that the insulators whom he supervised thought that the sheet metal workers were doing their work and stated that Smith was a "Texas mother fucking scab" and when Hargan told McCarty to "stay out of [Smith's] face," McCarty left. On the third occasion McCarty, in the presence of Hargan and Smith, yelled that the sheet metal workers were doing the insu- lators' work and swore at Smith and when Hargan asked him to "please quit," McCarty left. Other than as de- scribed above, it is undisputed that Hargan did not criti- cize McCarty for engaging in the aforesaid conduct. McCarty denied using abusive language when he spoke to Smith over the walkie-talkie radio, but testified that one day in September he discovered his crew was unable to do their work assignment because the area where they were assigned to work was covered with metal with sharp edges that had been left there by the sheet metal workers and that this made it impossible for McCarty's crew to work without the risk of injury, so, McCarty testified he called Hargan, not Smith, over the walkie-talkie radio and told him about the unsafe work- ing conditions and asked him to have Smith clean it up before the insulators started to work. McCarty further testified that the only other time he was involved in a dispute with Smith was in August when Smith moved two of McCarty's crew from their assigned work sta- tions, without consulting McCarty, and that McCarty re- sponded by informing Smith that if he wanted to move McCarty's men that Smith should go through proper channels and testified that he also complained about this to both Project Superintendent Frost and Hargan, both of whom agreed that his complaint was meritorious. Hargan in support of his testimony that McCarty was responsible for work stoppages testified about two inci- dents; one where Foreman Manwill told him McCarty was responsible for a work stoppage and another one where Hargan personally observed the work stoppage. Regarding the incident that Foreman Manwill brought to his attention, Hargan testified that Manwill told him that when Manwill was talking to Sheet Metal Superin- tendent Smith at a layout table and showing- Smith how to lay out a "conical," that McCarty brought his crew over to the edge of the boiler and they stood there for "just a few minutes" observing what Manwill and Smith were doing down below at the layout table. Hargan testi- fied he did not speak to McCarty about this incident. When asked what his reason was for not speaking to McCarty about this work stoppage, Hargan testified that because the matter involved Foreman Manwill showing Smith how to do insulators' work that he felt it was a "union matter" and not a matter for Hargan to be in- volved with. Hargan further testified that although the BABCOCK & WILCOX CONSTRUCTION CO. 629 matter of the insulators having stopped. work to observe Manwill and Smith at the layout table was a matter for Hargan because it constituted a work stoppage, that he was unable to explain why he did not speak to McCarty about it. McCarty testified that during the third or fourth week in September, insulator apprentice Pat McLaughlin, Local 16's president, asked McCarty to go to the side of the boiler with him and when McCarty, McLaughlin, and other insulators who had been working on the boiler went to the side of the boiler and looked down on the layout table below, they observed Foreman Manwill helping Sheet Metal Superintendent Smith work on a "conical" that was work usually performed by the insula- tors and that had previously been performed on the Project by the insulators. It is undisputed that later that day McCarty asked Manwill what he had been doing at the layout table with Smith and told Manwill that to McCarty and the other insulators who had observed them, it had looked as if Manwill was helping Smith lay out a conical, which was insulators' work, and cautioned Manwill about doing this." Regarding the work stoppage that Hargan personally observed take place, he testified as follows. On a date Hargan was unable to recall, after having terminated Gary Reed for excessive absenteeism, Hargan notified' Reed's foreman, McCarty, about the termination. McCarty responded by stating Reed was absent from work because of injuries suffered as the result of a motor vehicle accident and at that point went on a "rampage." He stated that Hargan had fired his best friend, that he was tired of Hargan's "shit," and told Hargan, "I quit." Also insulator apprentice Pat McLaughlin at this time told Hargan, "I quit also." Hargan asked McCarty to re- consider quitting, stating he wanted him to remain on the Project." McCarty ignored this request and went out of Hargan's sight up into the boiler where insulators were working and within 5 or 10 minutes 8 or 10 of the insula- tors came out from the boiler and asked Hargan whether it was true he had terminated insulator Reed. McCarty also came out of the boiler and Hargan again asked him not to quit. McCarty called Hargan a "fucking scab from Los Angeles" and accused him of taking food from the mouths of McCarty's children by being on the Project. McCarty also called Foreman Manwill, who was present, a thief who had taken money from McCarty's pockets in the past. Eventually one of the insulators calmed McCarty down and he agreed to remain on the job until Local 16's business agent Andrews came to the Project. liargan further testified that the aforesaid work 17 It is also undisputed that following this incident McCarty and other insulators filed intraunion charges with Local 16 against Manwill, who is a member of Local 16, accusing him of helping Sheet Metal Superintend- ent Smith do insulators' work. Manwill, however, did not learn of these charges until after McCarty's 26 September termination. 18 Hargan testified that his reason for asking McCarty to reconsider quitting and to remain as foreman was that when McCarty first was em- ployed on the Project in July, he told Hargan that in the event he was filed or laid off, "he would take the employees, that they would walk out with him." FLargan did not place McCarty's alleged threat in context. McCarty denied making this threat. I credit McCarty's denial inasmuch as McCart3r's testimonial demeanor, which was good, was better than Hargan's, which was poor. stoppage lasted between 1-1/2 hours and further testified that although he did not believe that McCarty had gone into the boiler and told the insulators to stop work, that he did believe McCarty was responsible for the work stoppage to the extent that McCarty had told the insula- tors that Reed had been terminated." Hargan testified he never spoke to McCarty or criticized him about his aforesaid conduct and that the day after the incident McCarty apologized for making the above-described de- rogatory remarks about him and that Hargan accepted his apology. McCarty's description of the events leading up to the above-described work stoppage follows. On 5 September Hargan told McCarty that Project Superintendent Frost had sent a telegram that morning terminating Reed for absenteeism. McCarty reminded Hargan that he had pre- viously informed Hargan that due to injuries suffered in a motor vehicle accident that Reed had notified McCarty he would be absent from work for a few days. Hargan replied that he had no control over Reed's termi- nation because Frost had reviewed the attendance records of all crafts and had terminated everyone with an absenteeism record. McCarty further testified that at this point the conversation was not a heated one, but tes- tified that then apprentice McLaughlin walked up to them and accused Foreman Manwill of giving preferen- tial treatment to another apprentice by the name of Mas- singale. McLaughlin told Hargan that even though Mas- singale had been caught sleeping on a material pile during working time, that Manwill had assigned him to work with the tools ahead of other apprentices, includ- ing McLaughlin, who were more experienced. McCarty mentioned that Local 16's Project steward Wright had stated he had found Massingale asleep on a material pile. Hargan responded by stating he could not do anything about the matter because it was Foreman Manwill's re- sponsibility. McLaughlin then argued with Hargan about this matter, which ended with McLaughlin stating he was quitting. McCarty took McLaughlin's side of the ar- gument, pointing out that McLaughlin had been working hard on the Project, unloading trailers and hauling mate- rials, and it did not seem fair that another apprentice who had been found asleep during working time was re- ceiving preferential treatment. McCarty concluded by stating that because of his dissatisfaction with the way in which Hargan was running the job and because Hargan was not going to do anything about Massingale sleeping on the job, or about the fact that the best helper on the job was quitting, or about Reed's termination, that "I Manwill, Respondent's witness, testified that when McCarty went through the boiler on this occasion, that McCarty told the insulators working there, "that son-of-a-bitch from L.A. laid off Gary Reed and let's walk this job, wobble this job in support of him." It is undisputed that Manwill did not relay this information to Hargan. McCarty denied engaging in this conduct I credit McCarty's denial because his testimoni- al demeanor, which was good, was better than Manwfirs, which was poor. Moreover, when I questioned Manwill in an effort to determine where, when, and in whose presence Manwill heard McCarty ask the employees to engage in a work stoppage, it is plain from Manwill's testi- mony (Tr. 406, L. 19 to Tr. 409, L. 18) that Manwill's above-described testimony was false and that he did not hear McCarty make such a state- ment and that no one ever Informed him that McCarty made that state- ment 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quit." McCarty then went up into the boiler to speak with Russell Utterback for the purpose of telling Utter- back, with whom he commuted to and from work, that he had quit. After informing Utterback he had quit, McCarty came down from the boiler and went to the office where he spoke to Project Manager Null and Project Superintendent Frost and told them, among other things, he did not feel Hargan was running the job right and felt he could not work under the present condi- tions. On his way out of the office, Local 16's Project steward Wright met him and told him that Local 16's business agent Andrews was en route to the Project and asked McCarty not to quit until Andrews got to the job- site. Subsequently, when Andrews arrived, both Hargan and Andrews agreed that McCarty's quitting would not be good for the Project. Hargan asked McCarty not to quit. McCarty responded by apologizing. He informed Hargan he was sorry he had lost his temper and stated if Hargan was willing to accept him back he would return to work, which he did. Hargan, in support of his testimony that the insulators supervised by McCarty did not start work on time, testi- fied that throughout McCarty's employment, two or three times weekly, McCarty's crew did not start work on time at either the start of the workday or after the end of a break period. He testified he spoke to McCarty about this more than once and told McCarty "we've got to get to work on time and told him that the insulators were always the last ones to get to the work area." However, Hargan was able to testify with a degree of specificity about only one such incident. He testified that once late in August when he observed that McCarty and his crew of insulators were still at their toolboxes at the 7 a.m. starting time, that he walked over to them, and that when McCarty observed him coming that McCarty sent the crew on their way to work and told them not to speak to Hargan. McCarty testified that Hargan complained to him on only two or three occasions that his crew was not at work on time or were late in getting to their workplace, and that on one of these occasions the complaint in- volved two travelers who had just been hired that day and because of that were not familiar with the precise time that break periods were scheduled. Regarding the only incident which Hargan was able to describe when McCarty's crew was late getting to their work area—the time when Hargan observed McCarty and his crew at the toolbox at 7 a.m.—McCarty testified that the night before, someone, without advising the workers, had moved their toolboxes and work clothes from where they had been to the other side of the Project, so, when the workers came 'to work that morning it took them a while to locate their toolboxes and work clothes, which resulted in the workers still being at their toolboxes at 7 a.m. McCarty testified that on this occasion, Hargan came to him and stated, "Met these men to work." Hargan, in support of his testimony that McCarty ig- nored his instructions about job assignments, initially tes- tified that there were numerous occasions when McCarty did not place the workers under his supervision in the work areas Hargan had instructed him to place them, but later testified he could not recall more than one such occasion. It is undisputed that Hargan did not speak to McCarty or otherwise criticize him for engag- ing in this alleged misconduct. Hargan, in support of his testimony that McCarty en- gaged in "bull sessions" during worktime with the work- ers he supervised, testified that this was a continuing problem despite the fact that Hargan had asked McCarty to let the workers work and not stop them from work- ing. Lastly when Hargan was asked whether he ever spoke to McCarty critically about any of the above-described problems he had with McCarty's work performance or the way McCarty conducted himself at work, Hargan testified he spoke to McCarty in a critical manner on three or four occasions and testified that in these conver- sations, "just told him that we need-to be out there ready to go to work at 7 a.m., seeing us being the only ones not out there at that time" and testified he also told him, "we need to get out there on time, we need to take our ten minutes breaks." Hargan further testified that this was the only criticism he could recall having directed to McCarty during McCarty's employment (Tr. 386, L. 24 to Tr. 389, L.8). In other words the only times Hargan could ever recall speaking to McCarty in a critical manner about his work performance or the way he con- ducted himself at work was on three or four occasions when he told McCarty that the men he supervised needed to be ready for work at the 7 a.m. starting time and generally informed him "we need to get out there on time." As described in detail supra, Hargan's testimony about McCarty's unsatisfactory work performance was disput- ed in a number of significant respects by McCarty's testi- mony. McCarty's testimonial demeanor was good, whereas Hargan's was poor. In view of this, I have re- solved these conflicts by crediting McCarty's and reject- ing Hargan's testimony. To sum up, an evaluation of the credible evidence con- cerning Hargan's several reasons for selecting McCarty for layoff reveals the following: McCarty did not act in- subordinate or abusive towards Sheet Metal Superintend- ent Smith and, in any event, Hargan never criticized McCarty for engaging in such misconduct or otherwise spoke to him about engaging in such misconduct; the only work stoppage that Hargan had reason to believe McCarty had engaged in or was responsible for was when Foreman Manwill informed him that McCarty and his crew had momentarily stopped work to watch Man- will help Sheet Metal Superintendent Smith do work that was insulators' work and that had previously been performed on the Project by insulators; 20 as to the events of 5 September, although some of the insulators stopped work because of Reed's termination, there is no evidence that Hargan could have reasonably believed that McCarty was responsible for the work stoppage or had otherwise encouraged the employees to stop work, thus it is not surprising that Hargan never accused McCarty of engaging in such conduct or otherwise 20 Idargan never even bothered to speak to McCarty about this mo- mentary work stoppage. BABCOCK & WILCOX CONSTRUCTION CO. 631 spoke to him about this matter; 21 McCarty's crew of in- sulators failed to start work on time on only one or two isolated occasions and Hargan did not speak to McCarty in a critical manner on those occasions, but merely told him to get his men to work; McCarty failed to obey Har- gan's instructions concerning work assignments only once and Hargan did not criticize him for this or other- wise speak to him about the matter; and, although McCarty had a habit of speaking to the insulators he su- pervised about nonwork-related matters during working time, it is undisputed that Hargan never spoke to him critically about this, but simply told him to let the work- ers work and not stop them from working.22 More briefly stated, an evaluation of the credible evi- dence reveals that Hargan's testimony that he was dissat- isfied with McCarty's work performance was in part completely without substance, in part grossly exaggerat- ed, and with respect to the one area where Hargan's tes- timony withstood scrutiny—his undenied testimony that McCarty had a habit of "bullshitting" during working time with the insulators he supervised—Hargan never criticized McCarty for engaging in this conduct, but simply told him to let the workers work and not stop them from working. As a matter of fact Hargan admitted that, during McCarty's approximately 10 weeks as fore- man, Hargan spoke to him in a critical manner on only three or four occasions and further testified that on those occasions he merely told him that the insulators he su- pervised needed to be ready to start work at the 7 a.m. starting time and that they should take no more than the 10 minutes allotted for break periods. In other words Hargan admittedly did not ever reprimand or otherwise criticize McCarty for any of the Alleged above-described misconduct that Hargan testified he relied on in selecting him for layoff. Quite the opposite, the record reveals that on 5 September Hargan persuaded McCarty to change Ins mind about quitting his employment, certainly unusu- al conduct for Hargan to have taken if he was really as dissatisfied with McCarty's work performance as he claims. As described supra, Hargan testified that the reason he chose McCarty for layoff was that on 25 September, when Project Manager Null instructed him to lay off several insulators because of a lack of work, Null specifi- cally told him to lay off one of the two insulator fore- men and he selected McCarty for layoff, rather than Foreman lVfanwill, because of McCarty's unsatisfactory work performance. The record as a whole reveals there are certain significant portions of this testimony that are incredible. First, I note that Respondent's failure to call Null, who at the time of the hearing was still in its 21 Not only is it undisputed that Hargan never criticized or otherwise spoke to McCarty about the 5 September work stoppage, the record re- veals that following the work stoppage that Hargan persuaded McCarty to change his mind about quitting his employment, a strange thing for Hargan to have done if he believed that McCarty was responsible for the employees' earlier work stoppage. 22 I note there is no evidence that McCarty's habit of talking to the insulators he supervised delayed Respondent's production schedule. Quite the opposite, the record reveals that Horgan felt the insulators employed under McCarty's supervision were so far ahead of the sheet metal work- ers m their work that the sheet metal workers could not catch up with them. employ, to corroborate Hargan's testimony that Null in- structed him to lay off either Foreman McCarty or Fore- man Manwill, when coupled with Hargan's poor testimo- nial demeanor, warrants the conclusion that this portion of Hargan's testimony was false. Second, when Null spoke to Hargan on 25 September about the layoff, Hargan supposedly had already decided on 22 September that there would only be one insulator foreman em- ployed effective Monday, 29 September, because the in- sulation work on the boiler would be fmished Friday, 26 September, and that because of this, McCarty who su- pervised the boiler crew, would, along with the rest of his crew, be transferred to work under Manwill's super- vision. Thus Hargan's above-described testimony does not make sense because several days prior to 25 Septem- ber Hargan had supposedly already decided and had in- formed McCarty that effective Monday, 29 September, McCarty would no longer be employed as a foreman on the Project but would be working with the tools as a rank-and-file insulator under Manwill's supervision on the piping crew. When at the conclusion of his testimony I pointed out this lack of sense in his testimony, Hargan belatedly testified that in addition to McCarty's poor work performance as foreman there was an additional reason that he relied on in selecting McCarty for layoff, which was Hargan's belief that McCarty would be hos- tile and jealous if he was demoted from foreman to rank- and-file insulator. I am persuaded that this testimony was an afterthought that played no part in Respondent's deci- sion to select McCarty for layoff, inasmuch as Hargan's testimonial demeanor was poor when he gave this testi- mony and the memos he prepared on 30 September and 7 November that stated his reasons for selecting McCarty for layoff do not expressly or by implication mention that one of the reasons for Respondent's deci- sion was that it believed McCarty would be so jealous and hostile due to his demotion that it would not have been appropriate to keep him on the job as a rank-and- file worker. 2 3 Also relevant in evaluating Respondent's reasons for selecting McCarty for layoff is the fact that at different times Respondent advanced different reasons for its con- duct. During the hearing, as described supra, Insulating Superintendent Hargan initially testified he selected McCarty for layoff, rather than Insulator Foreman Man- will, because of McCarty's unsatisfactory work perform- ance and conduct as a foreman. Subsequently, at the con- clusion of his testimony, Hargan belatedly testified that in addition to McCarty's unsatisfactory work perform- ance and conduct as a foreman, there was an additional reason why he had been selected for layoff, namely, Hargan thought that McCarty would be hostile and jeal- ous if he was demoted from foreman to a rank-and-file insulator. Prior to the hearing herein in defending itself against McCarty's charge that it had illegally selected him for layoff and refused to reemploy him, Respondent took the position that the only reason it had selected him 23 I also note that, when on 22 September Hargan supposedly decided to demote McCarty and supposedly mformed him of this decision, there Is no contention that McCarty expressed any hostihty or jealousy on bemg informed of Hargan's decision. 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for layoff and refused to reemploy him was because on numerous occasions McCarty had spoken to the custom- er for whom Respondent was building the Project's power-generating unit and had informed the customer that Respondent was not doing the insulation work ac- cording to the job specifications. In this regard, the record reveals that on 7 January 1987 in the charge filed in Case 20-CA-20898 McCarty alleged he had been dis- charged by Respondent on 26 September and refused re- employment on 6 October all because of his union and/or protected concerted activity. Respondent was promptly served with a copy of the charge that was ac- companied by a letter from the Board's Regional Direc- tor that, among other things, asked Respondent to submit to the Regional Director "a statement of your position with respect to the allegations set forth in the charge." In response, on 23 January 1987 Respondent's manager of labor relations, John Erickson, wrote the Regional Di- rector in pertinent part, as follows: The Company's contract with Energy Factors- Feather River contained very stringent require- ments relative to the construction of the power gen- eration unit. Among those procedures was a Specifi- cation for Insulation and Lagging which must be followed completely in order to meet product guar- antees. On numerous occasions, Mr. McCarty cir- cumvented his reporting relationship and corn- plained directly to our customer about the insula- tion specifications. Correction of confusion created by Mr. McCarty's action took considerable manage- ment time. Mr. McCarty was therefore selected for inclusion in the September 26, 1986 reduction in force. Additionally, when a need to increase our work force came up Mr. McCarty was referred as an ap- plicant by the Asbestos Workers Local Union. Due to the previously noted problems we did not rehire Mr. McCarty. Erickson, who had no personal knowledge about the events surrounding McCarty's layoff and Respondent's refusal to reemploy him, testified that in order to prepare the above-described statement of position that he had spoken to Project Manager Null and it was based on what Null told him, that Erickson prepared the 23 Janu- ary 1987 statement of position. More specifically, Erick- son testified Null told him that on numerous occasions McCarty had gone around Respondent's management and spoken directly to Respondent's customer and that during those conversations with the customer had ques- tioned the way in which Respondent was installing the Prqject's insulation and whether Respondent was follow- ing the job specifications. Null supposedly told Erickson that as a result of these conversations between McCarty and the customer that Respondent's management, includ- ing Null, were forced to spend considerable time with the customer justifying the way the insulation work was being done. I reject Erickson's testimony for the follow- ing reasons: His testimonial demeanor was poor when he testified about his conversation with Null, and Respond- ent's failure to call Null to corroborate Erickson's testi- mony warrants the inference that if called Null would have contradicted rather than corroborated his testimo- ny. 24 Moreover, the record reveals that McCarty did not speak to Respondent's customer about the insulation work being done on the Project. McCarty, whose testi- monial demeanor was good, denied having engaged in such conduct and there is no evidence that Insulating Su- perintendent Hargan had any reason to believe that McCarty had been engaged in this type of conduct. In this last respect, although Hargan testified at length about the several kinds of unsatisfactory conduct that McCarty had engaged in which made him an unsatisfac- tory foreman, Hargan significantly failed to mention in his testimony anything about McCarty having talked to Respondent's customer about the work being done on the Project. Under the circumstances, I fmd that Erick- son's testimony concerning his reason for saying what he did in Respondent's statement of position was a fabrica- tion. 8. Respondent's reasons for its 6 October refusal to rehire Davis Davis, a journeyman insulator, began work at the Project on 29 August and worked there during the time material under Foreman Manwill's supervision. On 1 Oc- tober, as described supra, he quit his employment and, as I have also found supra, when Davis quit his employ- ment on 1 October he did not tell Insulating Superin- tendent Hargan that he would not work under Foreman Manwill's supervision, nor did he refuse to obey Man- will's work assignment. On 6 October, pursuant to a request from Respondent to dispatch two or three insulators to the Project, Local 16 dispatched Davis and McCarty, but, as described in detail supra, Respondent refused to hire them. A descrip- tion and an evaluation of the record evidence concerning Respondent's reasons for not hiring Davis on 6 October is set forth in this section. Insulating Superintendent Hargan testified that on 6 October Foreman Manwill told him that Local 16 had dispatched Davis and McCarty to the Project and asked Hargan what they should do about employing them. Hargan further testified that with respect to Davis, he re- sponded by telling Manwill that because Davis had told Hargan he would not work under Manwill's supervision, that Hargan did not think Respondent should rehire him, because if he would not work under Manwill's supervi- sion it would be senseless to hire him 25 Hargan also tes- tified to the effect that at this point he unequivocally told Manwill not to rehire Davis. This is the extent of Hargan's testimony concerning Respondent's decision not to rehire Davis. The testimony of Manwill differs from Hargan's above-described testimony in several significant respects. Initially Manwill testified that on 6 October he went to Hargan's office and told him that Davis and McCarty had been dispatched to the Project and asked whether 24 I note that the Respondent in its answers to the complaints admitted that Null, a member of Management, was still in its employ. 25 Manwill was Respondent's only insulator foreman. r BABCOCK & WILCOX CONSTRUCTION CO. 633 Respondent should rehire them. He ftirt-her testified that Hargan responded by simply stating, "I think we should twit them around at the gate," without any explanation, and instructed Manwill to go to Project Manager Null and to discuss the matter with Null. Later, during cross- examination, Manwill gave a completely different ver- sion of what occurred. He testified that, when he spoke to Hargan about Davis and McCarty being dispatched to the Project, he recommended to Hargan that Respondent not rehire either Davis or McCarty and, in support of this recommendation, told Hargan, "the job is going smooth now and we do not need a disruptive force, let's turn them around at the gate" and Hargan, without any discussion, responded to his recommendation by simply stating that he "agreed" and instructed Manwill to speak to Null about the matter. Regarding his subsequent con- versation with Project Manager Null, Manwill testified that he told Null that Davis and McCarty had been dis- patched to the job and that Manwill and Hargan recom- mended that they not be hired. According to Manwill, Null responded by stating that it was also his opinion that they not be hired.26 En addition to the above-described inconsistencies be- tween Manwill's initial and later testimony concerning his 6 October conversation with Hargan about Davis' employment, there are other internal inconsistencies in his testimony concerning this subject. Initially, he testi- fied the reason he spoke to Hargan on 6 October about Davis' employment was that prior to 6 October Hargan had told Manwill that Davis had stated he would not work under Manwill's supervision. Subsequently, howev- er, Manwill testified that the reason he spoke to Hargan on 6 October and recommended that Davis not be re- hired was because he believed that Davis and McCarty were "non-performers" and "ship disturbers" who "cre- ated problems."27 Manwill's above-described testimony that Davis, during his approximately 1 month of employment at the Project, had been a "non-performer" and a "ship disturb- er" or a "disruptive force" who "created problems" on the job is completely without evidentiary support insofar as it refers to Davis' work performance and conduct as an insulator. The only evidence in the record that pic- tures Davis' work performance and other work-related conduct in an unsatisfactory light is Manwill's and Hat.- gan's previously described discredited testimony that on 1 October, when Davis quit his employment, he refused to obey Manwill's work assignment and told Hargan he would not work under Manwill's supervision. Quite the opposite, the only evidence presented by Respondent concerning Davis' work performance and conduct during the period he had been previously employed at the Project reveals that he was regarded by Respondent as a "normal" employee. Thus, the termination slip that was filled out by Respondent when he quit his employ- As described supra, I have credited McCarty's and rejected Man- will's testimony concerning Manwill's 6 October conversation with Project Manager Null. Manwill testified that he considered the phrase "ship disturbers" to have the same meaning as a "disruptive force." The General Counsel's motion to correct the transcript by substituting "shit disturbers" for "ship disturbers" is denied. merit on 1 October rated Davis as "normal" for "quanti- ty" and "quality" of work, as well as for "cooperation," "attendance," and "potential." Although there is ample space for "other comments" concerning his work per- formance and conduct, there is no indication on his ter- mination slip that Respondent was dissatisfied with his work performance or conduct. Prior to the hearing in this case the Respondent had advanced a reason for its 6 October refusal to rehire Davis, which was completely different from the above- described reasons advanced by Hargan and Manwill during the hearing. In the statement of position it submit- ' ted to the Board's Regional Director in response to the charge filed in Case 20-CA-21027 by Davis, Respondent stated in substance that its sole reason for not hiring Davis on 6 October was that he had previously quit his job at the Project on 1 October and because of this Davis was not eligible to be rehired because of the Com- pany's policy of not rehiring former employees at a project where they had been previously employed and quit. In this regard, the record reveals that on 2 March 1987 Davis filed a charge in Case 20-CA-21027 with the Board's Regional Director that alleged in substance that on 6 October Respondent refused to rehire him because of his union and/or protected concerted activities. Re- spondent was served with a copy of the charge with an accompanying letter from the Regional Director that, among other things, asked Respondent to submit to the Regional Director "a statement of your position with re- spect to the allegations set forth in the charge," In re- sponse, the Respondent's manager of labor relations, John Erickson, on 20 March 1987 wrote the Board's Re- gional Director, in pertinent part, as follows: The Company maintains a policy of not rehiring former employees at a project where they had been previously employed and either quit or had been discharged for cause. For that reason, Mr. Davis was not rehired. Erickson, who had no personal knowledge about the events surrounding Respondent's 6 October refusal to hire Davis, testified that to prepare the above-described statement of position, he spoke to Project Manager Nun and, based on what Null told him, prepared the Re- spondent's statement of position that was sent to the Board's Regional Director. More specifically, Erickson testified that, when he spoke to Null about Davis' allega- tions, Null told him that "he [Null] turned Davis away because he had been on the job before and quit." In re- sponse to a leading question, Erickson then testified that, based on this statement by Null, Erickson assumed that Null had refused to rehire Davis based on Respondent's policy that prohibited the rehire of a former employee at a project on which the employee had been previously employed and quit. I reject Erickson's aforesaid testimo- ny because his testimonial demeanor was poor when he testified about his conversation with Null and because Respondent failed to call Null to corroborate Erickson's testimony, which warrants the inference that if called 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Null would have contradicted rather than corroborated Erickson's testhnony. 2 8 Previous to responding to Davis' unfair labor practice charge, on 7 November the Respondent expressed still another reason for its 6 October refusal to rehire Davis. On 7 November, in connection with Local 16's Interna- tional Union's investigation of a contractual grievance that Davis had filed protesting Respondent's refusal to rehire him, Insulating Superintendent Hargan prepared and signed a memo that was also signed by Project Man- ager Null, which informed the International Union's rep- resentative that the reason Respondent had chosen to ex- ercise its contractual right to refuse to employ Davis on 6 October was Davis had previously quit his employ- ment at the Project on 1 October and that "Company policy [is] not to rehire for 30 days after quit." The state- ment in Hargan's and Null's 7 November memo that Re- spondent's policy is "not to rehire for 30 days after quit" is not consistent with Erickson's description of this al- leged policy. Erickson did not mention that an employee who quit his employ was only ineligible for the first 30 days, rather both his testimony and his description of the policy as set forth in Respondent's 20 March statement of position were to the effect that a person who quit was forever ineligible for reemployment on the same project. Regarding Respondent's alleged policy of not rehiring former employees at a project where they were previ- ously employed and quit, the sole testimony presented by Respondent about this rule was Erickson's testimony that the rule was a verbal one, unlike Respondent's other work rules on the Project that were in writing, and that it had been in existence since 1976 or 1977, when Erick- son verbally communicated it to all of Respondent's su- perintendents. There is no evidence that during the ap- proximately 10 years that this alleged verbal rule has ex- isted, that either Erickson or anyone else from Respond- ent ever reminded supervision of the existence of the rule. No reason was offered by Erickson to explain why this rule, unlike Respondent's other work rules, was never reduced into writing. Neither Hargan nor Manwill corroborated Erickson's testimony about the existence of such a rule. Nor was Null called to corroborate Erick- son's testimony. On the other hand, it was established by the undenied and credible testimony of McCarty that during his employment by Respondent as a foreman on approximately six different jobs, that no one ever told him there was a company policy that prohibited the em- ployment of a former employee at a project because the employee had previously been employed on the project and quit. Quite the opposite, McCarty's undenied and credible testimony is that during his past employment with Respondent as a foreman that employees who quit jobs were rehired by Respondent on the same jobs. And, with respect to the job involved in this case, the Project, McCarty's uncontradicted testimony is that one of the in- sulators employed under his supervision, Dave Barnett, was rehired after having quit. The foregoing circum- stances, when coupled with Erickson's poor testimonial 28 As noted previously the Respondent, in its answers to the com- plaints, admitted that Null, a member of management, was still m employ. demeanor, persuade me that during the time material to this case Respondent did not have a policy or a rule that prohibited it from rehiring a former employee at a project where the employee had previously been em- ployed and quit. To sum up, Respondent's 20 March 1987 statement of position to the Board's Regional Director stated that its reason for refusing to rehire Davis on 6 October was that he had previously quit his employment at the Project and because of this was not eligible for rehire under the company policy of not rehiring former em- ployees on the same project from which they had previ- ously quit. Subsequently, during the hearing in this case, Respondent presented a completely different reason for its 6 October refusal to rehire Davis, namely, that when he quit he told Hargan he would not work under the su- pervision of Manwill, the Project's only insulator fore- man. Thereafter, during the course of the hearing, Re- spondent presented yet another reason for its refusal to rehire Davis, namely, that while employed at the Project Davis had been a "non-performer" and a "ship disturb- er" or a "disruptive force" who had created problems on the job. Each of the aforesaid reasons, as I have de- scribed in detail supra, is completely unfounded and without substance. The record also reveals, as described in detail supra, that Manwill's testimony about Respond- ent's 6 October decision not to rehire Davis was internal- ly inconsistent in certain significant respects and did not jibe with Hargan's account of what occurred. In addi- tion, Project Manager Null, who, along with Hargan and Manwill, was supposedly involved in the 6 October deci- sion not to rehire Davis, was not called to testify by Re- spondent. This warrants the inference that if called his testimony would have been adverse to Respondent and would have contradicted the testimony of Hargan and Manwill in significant respects. B. McCarty and Davis File Contractual Grievances As described supra, Respondent and Local 16 were parties to a collective-bargaining agreement, the Project Agreement, which governed the terms and conditions of employment of the insulators employed by Respondent at the Project. The Project Agreement contained a grievance-arbitration procedure, in which the parties agreed that "in the event any dispute arises of the inter- pretation or application of this Agreement, excluding questions of jurisdiction of work, the same shall be set- tled by means of the procedure set out herein." The Project Agreement established a four-step griev- ance procedure culminating in binding and impartial ar- bitration, as follows: step 1 provided for the referral of the grievance to a representative of Local 16 and Re- spondent's Project representative; step 2 provided that if within 5 working days after the step 1 meeting was held the grievance had not been resolved, it was to be re- ferred to Local 16's International Union and Respond- ent's labor relations representative; step 3 provided that, if the grievance had not been resolved at step 2 within 10 working days after the completion of step 2, it was to be referred in writing to "the General President of the BABCOCK & WILCOX CONSTRUCTION CO. 635 Union invol ved" 2° and Respondent's home office repre- sentative; and step 4 provided that if the grievance was not resolved within 10 working days after the comple- tion of step 3 Respondent and Local 16 shall choose. a mutually agreed-on arbitrator for final and binding arbi- tration, with the expenses to be shared equally by Local 16 and Respondent. Lastly, the Project Agreement pro- vided that the above-described time limitations concern- ing the processing of a grievance could be extended by the parties by mutual agreement, but farther provided that the failure to process a grievance within the time limits set forth above, without a request for an extension of time, shall be deemed a waiver of such grievance. 1. McCarty's grievances On 26 September, immediately after being told of his 26 September layoff, McCarty contacted Local 16's busi- ness agent Andrews and requested that Local 16 process a grievance against Respondent protesting his layoff. On 29 September, as described in detail supra, An- drews went to the Project where he met with Project Manager Null and Project Superintendent Frost and dis- cussed McCarty's grievance. This meeting did not re- solve McCarty's termination grievance, inasmuch as Re- spondent's representatives refused Andrews' request that they reinstate McCarty. On 29 September, immediately after meeting with Re- spondent's representatives, Andrews wrote George Boylan, the assistant to the general president of Local 16's International Union, and requested that an official from the International Union be assigned to process the grievance McCarty had filed against Respondent con- cerning his 26 September termination and explained to Boylan that at the first step of the grievance procedure, Respondent on 29 September had refused to reinstate McCarty. On 3 October Boylan wrote Respondent's labor rela- tions manager, John Erickson, informing him that McCarty's termination grievance had not been settled at step 1 of the grievance procedure and advised Erickson that the International Union was assigning International Organizer Eddie Story to arrange to hold a step 2 meet- ing with Erickson to attempt to resolve McCarty's termi- nation grievance. On 6 October after Respondent, as described in detail supra, refused to hire him at the Project, McCarty spoke to Local 16's business agent Andrews and asked that Local 16 file a grievance concerning this matter. On 14 October, by letter, Local 16's business manager Greg Feere notified Project Manager Null that Local 16, on behalf of both McCarty and Davis, was grieving con- cerning Respondent's refusal to hire them on 6 October and its failure to pay them 2 hours of reporting pay, and requested a meeting date to resolve those grievances. 29 The Project Agreement in its preamble defines "Union" as the "Na- tional and/or Local Unions who become signatory" to the Project Agreement. Local 16's International union is not a signatory to the Project Agreement. It is apparent from the record as a whole, however, that the phrase "the General President of the Union involved" as used in step 3 of the contractual grievance procedure refers not to the president of Local 16, but to the general president of Local 16's International Union. McCarty received no information about the status of his above-described grievances other than, as McCarty testified, a meeting was scheduled to discuss his griev- ances at the Project, but on the day of the meeting he was telephoned and advised that there was no use for him to travel to the Project because Respondent had re- fused to meet. Thereafter, late in November, McCarty wrote Andy Hass, the general president of Local 16's International Union, and stated that pursuant to step 3 of the Project Agreement's grievance procedure, McCarty was notify- ing Hass that Respondent, with respect to McCarty, had violated article 14 of the Project Agreement in these re- spects: section 14-1, insofar as it provided that laluthorized representatives of the Unions shall have access to the Projects"; section 14-5, insofar as it provid- ed, "Mlle Employer shall not discriminate against the steward"; and section 14-6, insofar as it provided that, "[t]he working steward . . will be subject to discipline (including discharge) to the same extent as other employ- ees after notification (24 hours) and consultation with the Business Agent involved."30 McCarty also informed General President Hass that he had filed an additional grievance alleging Respondent had violated article 6, section 6-2,3i for refusing on 6 October to pay him 2 hours of reporting time. McCarty further advised Hass that International Union Organizer Story was supposed to meet with Respondent's labor relations manager, Erickson, on 31 October but that McCarty had not heard anything from Story about his grievance and his phone call to Story was "to no avail," and so when he realized he was not making any progress he had telephoned Hass' office and spoken to Hass' assistant, Boylan, who had as- sured him that his grievance would not be dropped. McCarty ended the letter by asking Hass for his assist- ance in resolving his grievance as soon as possible." During the months of October, November, December, and the first week of January 1987, McCarty received no response whatsoever from either Local 16 or its Interna- tional Union about the status of his grievances, except that sometime in December he received, by mail, from Local 16 a check for 2 hours of pay. The check had been drawn by Respondent. There was no letter of ex- planation attached to the check. McCarty assumed it was for the 2 hours of reporting pay he had claimed was due him for reporting to work on 6 October. As I have found supra, on 7 January 1987 McCarty filed his charge herein in Case 20-CA-20898 alleging Re- spondent had violated Section 8(a)(1) and (3) of the Act by terminating him on 26 September and refusing to hire him on 6 October. Also, on 7 January 1987 McCarty filed a charge in Case 20-CB-7103 alleging that Local 16 and its International union had violated Section 8(b)(1)(A) of the Act by failing to process his above-de- 3° I note that secs. 14-1, 14-5 and 14-6 of the Project Agreement do in fact contain the above-described provisions. al Art 6, sec. 6-2 provided, in pertinent part, that "any employee re- porting for work and for whom no work is provided shall receive pay for two (2) hours at the applicable rate for so reporting." 33 Late in Noveniber McCarty also wrote a letter to Respondent's labor relations manager, Erickson, which was similar to his above-de- scribed letter to Hass 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD --- scribed grievances. On 26 February 1987 the Board's General Counsel issued a complaint against Local 16 and its International Union in that case alleging that the unions had violated Section 8(b)(1)(A) of the Act by re- fusing to process McCarty's grievances against Respond- ent concerning his 26 September termination and Re- spondent's 6 October refusal to reinstate him. The com- plaint against the unions was subsequently consolidated for hearing with the complaint issued against Respondent in Case 20-CA-20898, alleging that Respondent's 26 Sep- tember termination of McCarty violated Section 8(a)(1) and (3) of the Act. However, on 26 October 1987, the day before the consolidated hearing was scheduled to begin, McCarty requested that his charge in Case 20- CB-7103 against the Unions be withdrawn. The Board's Regional Director, by order dated 26 October 1987, ap- proved McCarty's withdrawal request and also withdrew the complaint in Case 20-CB-7103. McCarty testified he had no conversation with anyone from either Local 16 or its International Union that caused him to withdraw his charge against the Unions, but that the Board agent who was handling the matter informed him that the Unions were willing to pay him a certain amount of money, not specified in the record, if he agreed to withdraw the charge. McCarty, after con- sidering the matter, informed the Board agent that he ac- cepted the Unions' money offer and requested that his charge in Case 20-CB-7103 be withdrawn. As noted supra, the Board's Regional Director approved McCar- ty's request that the charge be withdrawn and because of this withdrew the complaint issued in that matter. The record reveals that on 26 January 1987 Interna- tional Union Organizer Story, who had been assigned by the International Union to process McCarty's grievances, wrote to George Boylan, an assistant to the International Union's president, that on 16 October Story and Local 16's business manager Feere had met at the Project with Respondent's representatives to discuss McCarty's griev- ances and that after this discussion and after investigating the grievances that he was of the opinion, for the reasons set forth in the 26 January 1987 letter, that Respondent was within its rights to lay him off. On 30 January 1987, an attorney for the International Union, in response to the filing of McCarty's 7 January 1987 charge in Case 20-CB-7103, wrote the Board's Re- gional Director that the International Union had not failed to process McCarty's grievances, as alleged in the charge, but it had resolved one of the grievances favor- ably, the one that involved McCarty's claim for 2 hours of showup pay, and had dropped McCarty's grievance concerning his 26 September termination only after an investigation had revealed that the grievance was not meritorious. 2. Davis' grievances On 7 October Davis hand-delivered a letter to Local 16 in which he grieved about Respondent's refusal to hire him on 6 October and about Respondent's failure to pay him 2 hours of showup time for that day. On 14 October, by letter, Local 16's business manager Greg Feere notified Project Manager Null that Local 16, on behalf of McCarty and Davis, was grieving about Re- spondent's refusal to hire them on 6 October and its re- fusal to pay them 2 hours of reporting pay, and request- ed a meeting date to resolve those grievances. The last time Davis spoke to anyone from either Local 16 or its International union concerning his grievance was during the middle of October when he questioned International Union Representative Story about the status of the griev- ance and Story responded by informing him that Local 16's business manager Feere was handling it. However when Davis telephoned Feere to ask about the griev- ance, eere dia not return his phone calls. Since his above-described conversation with Story, Davis has not received any communications from either Local 16 or its International Union concerning his grievance. In Decem- ber, however, he received a check in the mail from Re- spondent for 2 hours of pay, which was apparently for showing up for work 6 October. On 2 March 1987, as I have found supra, Davis filed his charge herein in Case 20-CA-21027 alleging Re- spondent had violated Section 8(a)(1) and (3) of the Act by refusing on 6 October to hire him.. Also, on 2 March 1987, Davis filed a charge in Case 20-CB-7171 alleging that Local 16 and its International Union violated Sec- tion 8(b)(1)(A) of the Act by failing to process his griev- ance protesting Respondent's 6 October refusal to hire him Subsequently, during the latter part of April 1987, after having been informed by an agent of the Board that unless it was withdrawn by him the charge would be dis- missed by the Board's Regional Director, Davis with- drew this charge. II. DISCUSSION A. Respondent's Contention that the Complaints' Allegations Concerning McCarty's Termination and the Refusal to Rehire Davis be Deferred to the Parties' Contractual Grievance-Arbitration Provisions The complaints' allegations concerning McCarty and Davis are based on the unfair labor practice charges they filed and allege, in essence, that Respondent violated Section 8(a)(1) and (3) of the Act by laying off McCarty on 26 September and refusing to hire Davis on 6 Octo- ber, because of their union and/or protected concerted activities. McCarty and Davis were employed by Re- spondent in the bargaining unit represented by Local 16 and their terms and conditions of employment were gov- erned by a collective-bargaining agreement, the Project Agreement, between Local 16 and Respondent that con- tained a four-step grievance-arbitration procedure culmi- nating in binding impartial arbitration. In addition to filing their unfair labor practice charges, McCarty and Davis invoked the contractual grievance and arbitration provisions by filing contractual grievances with Local 16 protesting Respondent's conduct. Their respective griev- ances are cognizable under the terms of the contractual grievance machinery, which also encompasses the con- tentions that comprise Davis' and McCarty's unfair labor practice allegations. 3 3 33 The governing collective-bargaining agreement expressly prohibited Respondent from discriminating against Local 16's Project steward. The Continued BABCOCK & WILCOX CONSTRUCTION CO. 637 During the hearing Respondent amended its answers to the complaints so as to allege that the unfair labor practice allegations involving McCarty's termination and the refusal to hire Davis "should have been deferred on account of the existence of the grievance and arbitration procedure which was not pursued." The General Coun- sel contends that, because Respondent has declined to give its assurances that it would not raise the timeliness provisions of the contractual grievance-arbitration provi- sions so as to permit Local 16 to submit the Charging Parties' grievances to arbitration, it would not be appro- priate for the Board to defer its unfair labor practice ju- risdiction to the parties' grievance-arbitration procedure. I agree. As described in detail supra, the governing contractual grievance-arbitration provisions contain time limits appli- cable to the Charging Parties' grievances and those limits have expired, thus, absent Respondent's waiver of the time limits, Local 16's submission of the Charging Par- ties' grievances to arbitration would be untimely. The law is settled that as a part of its deferral defense Re- spondent must agree to waive the timeliness provisions of the grievance-arbitration procedure so as to permit Local 16 to submit the Charging Parties' grievances to arbitration. United Technologies Corp., 268 NLRB 557, 560 fn. 22 (1984); Detroit Edison Co., 206 NLRB 898 (11973). During the hearing, when counsel for the Gener- al Counsel observed that the grievance-arbitration provi- sions' time limits had expired, I inquired whether Re- spondent's counsel could assure the General Counsel and the Charging Parties that Respondent would waive the time limits, if Local 16 submitted the Charging Parties' grievances to arbitration. Counsel replied he could not give that assurance. In answer to my further inquiry of how Respondent could raise its deferral defense without agreeing to waive the time limits contained in the con- tractual grievance-arbitration provisions, Respondent's counsel stated, "Well if I fmd that I can't, and I choose to do so, I shall notify you or so indicate in my brief." In its posthearing brief Respondent has not indicated it would be amenable to waiving the time limits set forth in the contractual grievance-arbitration provisions. Under the circumstances, I fmd Respondent has failed and re- fused to give assurances to the General Counsel and the Charging Parties that, if Local 16 submitted the Charg- ing Parties' grievances to arbitration, Respondent would waive the time limits contained in the contractual griev- ance-arbitration provisions. In view of this, I further fmd it would be inappropriate for me to recommend that the Board defer the complaints' unfair labor practice allega- tions involving McCarty and Davis to the parties' con- tractual grievance-arbitration procedure. 34 See Union Electric Co., 214 NLRB 320, 321 (1974). theory of the complaints is that Respondent selected McCarty for layoff because he had been appointed to the position of Project steward and re- fused to hire Davis because of his activity as steward when previously employed at the Project. 34 I have not passed on the General Counsel's further contention that deferral would also be inappropriate because the evidence, which has been set forth in detail supra, establishes that the Unions involved would not submit the Charging Parties' grievances to arbitration, even if Re- spondent agreed to waive the time limits of the contractual grievance- arbitration provisions. In its posthearing brief Respondent does not contend that the unfair labor practice allegations involving McCarty and Davis should be deferred to the governing contractual grievance-arbitration provisions. Rather, re- lying on Alpha Beta Co., 273 NLRB 1546 (1985), Re- spondent now contends that these unfair labor practice allegations should be deferred to a settlement agreement negotiated by the parties in the context of the agreed-on contractual grievance-arbitration provisions. This conten- tion is without merit because there is no evidence that the Charging Parties' grievances were resolved by agree- ment between Respondent and Local 16 or Local 16's International Union and there is no evidence that either McCarty or Davis were ever informed that their griev- ances had been the subject of a negotiated agreement. Indeed, there is no evidence whatsoever concerning the manner in which the Unions disposed of Davis' griev- ance and the sole evidence concerning the disposal of McCarty's grievance is the fact that the International Union, in answer to McCarty's charge that the unions had failed to process his grievance, informed the Board's 'Regional Director that it had dropped McCarty's termi- nation grievance because it believed it was without merit. Under the circumstances, Respondent's contention that the Charging Parties' grievances were resolved by means of a settlement agreement reached in the context 'of the contractual grievance-arbitration procedure is friv- olous and Respondent's reliance on Alpha Beta Co. is misplaced. It is for the foregoing reasons that I find it would be inappropriate to defer in this matter to the parties' con- tractual grievance-arbitration procedure. Accordingly, I shall decide on the merits the allegations of the com- plaints that involve McCarty's termination and the refus- al to hire Davis. B. The Alleged Unlawful Threat The complaint in Case 20-CA-20898 alleges that Re- spondent through Foreman Monte Manwill, on 29 Sep- tember "threatened employees that Respondent would discharge employees if they sought to enforce the collec- tive bargaining agreement between the Union and Re- spondent," thereby violating Section 8(a)(1) of the Act. The record, as set forth in detail supra, contains the fol- lowing evidence pertinent to an evaluation of this allega- tion. Respondent's insulator foremen, Manwill and Mc- Carty, who are members of Local 16, were part of the bargaining unit of insulators employed at the Project who were' represented by Local 16 and covered by the collective-bargaining agreement, the Project Agreement, between Local 16 and Respondent. Foreman Manwill was admittedly a supervisor within the meaning of Sec- tion 2(11) of the Act. During his approximately 10 weeks of employment at the Project as foreman, on numerous occasions McCarty asked the Project's insulating superintendent, Hargan, to look at the job specifications for the insulation work to determine whether Hargan't work instructions con- formed to the job specifications. Hargan refused, stating there were no job specifications available. McCarty was 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not satisfied with Hargan's response" and expressed his doubt that Hargan's work instructions conformed to the Project's job specifications and on those occasions when McCart# felt Hargan's work instructions were obviously incorrect, he asked Hargan, without success, to reduce his instructions into writing. McCarty complained on several occasions to Local 16's business agent Andrews about the lack of job specifications. On Friday, 26 September, in the morning, Hargan told McCarty that as a result of a reduction in force, that ef- fective Monday, 29 September, McCarty would no longer be foreman but would be reassigned to work with the tools. Later that same day, McCarty, in Foreman Manwill's presence, was appointed by Business Agent, Andrews to be Local 16's Project steward, in place of insulator Wright, who was being laid off that day. Later' that day, however, McCarty himself was laid off. During the morning of the next working day, Monday,' 29 September, Davis, who worked under Foreman Man- will's supervision, was appointed by Business Agent An- drews to take McCarty's place as Local 16's Project steward. Andrews at that time told Davis to look at a set of job specifications for the insulation work to be sure the work was being done according to the job specifica- tions. Later that same morning, Foreman Manwill came to Davis and stated he heard Davis had been appointed steward. Davis acknowledged this was true and asked Manwill if he could see the job specifications for the in: sulation work which was being performed. Manwill re: plied by stating, "Remember what happened to the last' guy that asked too many questions." Davis asked Man- will what he meant by that statement. Manwill replied' by laughing. I am persuaded that when viewed in context, that Manwill's 29 September warning to Davis to "Remem- ber what happened to the last guy that asked too many questions" referred to the fact that McCarty, who had questioned the way management was having the insula- tion work performed and in so doing had asked to see the job specifications, had been laid off the previous workday. Thus, Manwill's warning was made in reply to Davis' request to look at a set of the job specifications so he could see whether the insulation work was being done according to the specifications. McCarty, who had been laid off the previous workday, on numerous occa- sions had asked Insulating Superintendent Hargan to look at the Project's specifications and had questioned whether Hargan's work instructions for the insulation work conformed to the Project's specifications. Under the circumstances, Manwill's above-described comment to Davis constitutes an implied warning that Davis would be terminated like McCarty, if Davis asked ques- tions, like McCarty had done, about the insulation work being performed at the Project. Respondent, however, was not responsible for Manwill's statement. Manwill, although admittedly a supervisor within the meaning of Section 2(11) of the Act, was a part of the bargaining unit covered by the collective-bargaining 35 In the past when McCarty had been employed by Respondent on projects as a foreman, Respondent had always maintained job specifica- tions that management always had shown McCarty, on request agreement, the Project Agreement, between Local 16 and Respondent. The Board has generally refused to hold an employer responsible for conduct of supervisors who are part of the bargaining unit, absent evidence that the employer encouraged, authorized, or ratified the su- pervisors' activity, or acted in such a manner as to lead the employees reasonably to believe that they were acting on behalf of management. Montgomery Ward & Co., 115 NLRB 645, 647 (1956). See also Bennington Iron Works, 267 NLRB 1285 (1983). The record discloses no evidence that would render Respondent liable for super- visor Manwill's conduct under the principle of Montgom- ery Ward. I, therefore, shall recommend the dismissal of that part of the complaint in Case 20-CA-20898 that al- leges that, on 29 September 1986, Respondent violated Section 8(a)(1) of the Act by threatening to discharge employees if they sought to enforce the collective-bar- gaining agreement between Local 16 and Respondent. C. McCarty's Layoff The complaint in Case 20-CA-20898 alleges that Re- spondent violated Section 8(a)(3) and (1) of the Act by terminating McCarty on 26 September because of his union and/or protected concerted activity. The Board held in Wright Line, 251 NLRB 1083 (1980),36 that in cases alleging violations of Section 8(a)(3) and (1) which turn on employer motivation, the General Counsel must first make a prima facie showing sufficient to support the inference that protected activity was a motivating factor in the employer's action against an employee and that then the burden shifts to the employer to demonstrate it would have taken the same action even in the absence of the protected conduct. I am persuaded that the General Counsel has established by a preponderance of the evi- dence that a motivating factor in Respondent's decision to terminate McCarty was Foreman Manwill's animosity toward him because Manwill believed that when McCarty began work as a rank-and-file employee, that McCarty would actively pursue his duties as Local 16's Project steward. I have reached this conclusion for the following reasons. The record establishes that Foreman Manwill was the key person in management's decision to select McCarty for layoff and that the other member of management, In- sulating Superintendent Hargan, was only nominally in- volved in the decision. As I found supra, on 26 Septem- ber at approximately 8 a.m Insulating Superintendent Hargan told Foremen McCarty and Manwill that there would be a reduction in force that day, that due to this McCarty would no longer be employed as a foreman but would be employed as a rank-and-file insulator under Manwill's supervision. Hargan requested that Manwill, the remaining insulator foreman, submit to Hargan a list of the insulators to be laid off." This was the first time 36 Approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 37 As I have found supra, Hargan at first requested McCarty and Man. will to meet together and jointly prepare and submit a list of insulators whom they jointly recommended for layoff. McCarty refused, feeling it would be inappropriate for him to corroborate on such a list because it Continued BABCOCK & WILCOX CONSTRUCTION CO. 639 that insulators were laid off due to a lack of work at the Project, however, it is clear that Foreman Manwill, ad- mittedly a supervisor within the meaning of Section 2(11) of the Act, had the authority to effectively recom- mend which employees would be laid off. Thus, as Re- spondent acknowledges, "it is the practice in Local 16's area that insulation foremen make effective recommenda- tions regarding layoffs" (Br. 5 at fn. 2). Moreover, Horgan testified that Manwill had the authority and re- sponsibility to make recommendations to Hargan con- cerning the hiring, firing, and discipline of the insulators under his supervision and further testified that Manwill's recommendations in those respects were effective- Hargan relied on them. As a matter of fact the record reveals that Manwill recommended the discharge of five insulators and that Hargan each time accepted his recom- mendation. The aforesaid evidence warrants the infer- ence that during the time material Foreman Manwill pos- sessed the authority to effectively, recommend employees for layoff. That Manwill, pursuant to his authority to select em- ployees for layoff, was the one who selected McCarty for layoff on 26 September and effectively recommended his layoff to management, is revealed by Hargan's and Manwill's following conduct. On 26 September, at the start of the workday, Hargan notified McCarty that al- though insulators would be laid off that day due to a lack of work, McCarty would not be one of them, but would be reassigned from his position as foreman to work as a rank-and-file insulator under Manwill's super- vision. Thereafter Hargan never said anything to the contrary to McCarty and, when, on the next working day, 29 September, Local 16's business agent Andrews visited the Project and told Hargan he was there to speak to management about McCarty's layoff, Hargan re- plied by stating that "he [Hargan] did not have anything to do with [McCarty's layoffl that he'd told [Manwill] to lay off seven people." Similarly, when Andrews told Manwill he had come to the Project to speak to manage- ment about McCarty's layoff, Manwill, before even speaking to anyone from management, replied by stating that Andrews was just wasting his time talking to man- agement about McCarty's layoff because McCarty was not going to be put back on the job. Hargan's and Man- will's aforesaid conduct warrants the inference that Man- ' will, not Hargan, was the person who selected McCarty for layoff. This conclusion is buttressed by the undis- puted fact that in refusing to rehire McCarty on 6 Octo- ber management relied solely on Manwill's recommenda- tion. In this regard, Manwill testified that Insulating Su- perintendent Hargan simply agreed with Manwill's rec- ommendation that McCarty not be rehired and told Hargan to speak with Project Manager Null about the matter and, as I have found supra, when Manwill spoke to Null and stated he did not want McCarty on his job, that Null responded by stating that because Manwill was the foreman, if he did not want McCarty working under his supervision, Null would abide by his decision. would be lolanwill, not he, who would be supervising the remaining insu- lators not selected for layoff Hargan did not press his request that McCarty corroborate with Manwill in preparing the list. Considering that the record reveals it was the practice in Local 16's area that insulator foremen make effective recommendations regarding layoffs; considering that Foreman Manwill, who was a supervisor within the meaning of Section 2(11) of the Act, admittedly had the authority to effectively recommend the hiririg, firing, and discipline of the insulators under his supervision and ex- ercised this authority; considering that Manwill specifi- cally exercised this authority on 6 October when he ef- fectively recommended that Respondent not rehire McCarty to work under his supervision; considering that Manwill was asked by Hargan to prepare and submit to Hargan a list of the insulators whom he recommended for layoff; considering that McCarty, who was scheduled to work under Manwill's supervision the next working day, was chosen for layoff even though Hargan had ear- lier told him that in view of the reduction in force he would be reassigned to work as a rank-and-file employee under ManwilPs supervision and not included among the layoffs; consideririg that Hargan admitted to Local 16's business agent Andrews' that Manwill, not Hargan, was responsible for McCarty's layoff and that Hargan had ab- solutely nothing to do with McCarty's layoff; and con- sidering that Manwill, in speaking to Local 16's business agent Andrews, spoke as if he had the absolute authority to block McCarty's employment. These considerations, viewed in their totality, warrant the inference that Man- will possessed the authority to effectively recommend in- sulators for layoff and in fact exercised that authority in connection with the 26 September layoff and more spe- cifically that he was the key person in management's de- cision to select McCarty for layoff and that Insulating Superintendent Hargan was only nominally invOlved in the selection of McCarty for layoff. In concluding that Foreman Manwill was the keyper- son in management's decision to select McCarty for layoff and that Insulating Superintendent Hargan was only nominally involved in this decision, I have consid- ered Hargan's and Manwill's testimony that Manwill had absolutely nothing whatsoever to do with McCarty's layoff. Hargan testified that the list of insulators recom- mended for layoff submitted to him by Manwill did not include McCarty's name. Hargan further testified that Hargan personally selected McCarty for layoff because he had been instructed by Project Manager Null to in- clude one of the two insulator foremen among the insula- tors being laid off. Manwill testified that he had absolute- ly nothing to do with McCarty's selection for layoff and that the list of seven names that he submitted to Hargan with the recommendation that they be laid off did not in- clude McCarty's name. Hargan's and Manwill's testimonial demeanor was poor when they gave the aforesaid testimony. Moreover, as I have previously found, Hargan's testimony concern- ing the closely related subject of his reason—unsatisfac- tory work performance--for selecting McCarty over Manwill for layoff was either false in a number of re- spects or otherwise without substance. Also, as I have noted previously, Respondent failed to call Project Man- ager Null to corroborate Hargan's testimony that it was Null's instruction that one of the two insulator foremen 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be laid off that in effect triggered Hargan's decision to lay off McCarty. Respondent's failure to call Null to cor- roborate Hargan's testimony on this significant point warrants the inference that his testimony would have contradicted Hargan's and been adverse to Respondent. See International Automated Machines, 285 NLRB 1122 (1987). These considerations, when viewed in the context of the above-described factors that demonstrate that Manwill was the key person in management's decision to lay off McCarty and that Hargan was only nominally in- volved in the decision, have persuaded me to reject Har- gan's and Manwill's testimony. The record establishes that Foreman Manwill, in effec- tively recommending McCarty's layoff, was motivated by his belief that, when McCarty started work the next day as a rank-and-file insulator under Manwill's supervi- sion, he would actively pursue his duties as Local 16's Project steward. My reasons for reaching this conclusion follow. McCarty was notified of his layoff on 26 September by Foreman Manwill just approximately 3 hours after Manwill heard Local 16's business agent Andrews state that McCarty would be Local 16's steward when he started working as a rank-and-file insulator the next workday. Previously, on 26 September, Insulating Super- intendent Hargan had advised McCarty, and Foreman Manwill had re-advised McCarty, in the presence of An- drews, that several insulators would be laid off later that day and that McCarty, who would not be among those laid off, would be reassigned effective the next workday to work under Manwill's supervision as a rank-and-ffie insulator. The aforesaid timing and precipitant nature of McCarty's layoff constitutes strong evidence of unlawful motivation. See, e.g., NLRB v. United Mineral & Chemi- cal Corp., 391 F.2d 829, 833 (2d Cir. 1968); NLRB V. Rain-Ware Inc., 732 F.2d 1349, 1354 (7th Cir. 1984); NLRB v. Windsor Industries, 730 F.2d 860, 864 (2d Cir. 1984) (timing alone may be sufficient to establish that an- tiunion animus was a motivating factor in a termination decision). It stretches credulity too far to believe that there was only a coincidental connection between McCarty being appointed Local 16's Project steward at approximately 10 a.m. and his abrupt layoff only 3 hours later, when previously that same day he had been ad- vised by Hargan and then re-advised by Manwill that he would not be one of those laid off, but that due to the reduction in the work force caused by the layoffs he was being reassigned to work with the tools as a rank-and-file insulator under Manwill's supervision. The only thing that changed in the intervening hours between Hargan's assurance to McCarty that he would be reassigned to work with the tools as a rank-and-file insulator, rather than be included in the layoff, was the fact that Manwill learned that when McCarty commenced work as a rank- and-file insulator that McCarty would also be Local 16's Project steward. On 26 September, on learning that McCarty on Monday, 29 September, would replace insulator Wright as Local 16's Project steward, Manwill informed McCarty and other insulators that come Monday things would change on the job and warned that he did not intend to put up with any of "McCarty's shit." McCarty responded by stating that come Monday what would change would be that because he was Project steward Manwill would not be able to send insulators to work under unsafe conditions on wet scaffolding in the rain. Manwill denied having done this, but two of the insula- tors, in response to McCarty's questions, stated that McCarty's accusations were true and that ManwilI had told them to work on wet scaffolding under unsafe con- ditions or to take their tools and leave the Project. By his above-described conduct McCarty made it abundant- ly clear to Manvvill that while employed as a rank-and- file insulator under his supervision, he intended to active- ly and aggressively perform his duties as Local 16's Project steward. Likewise, it is clear that by placing IVIanwill on notice that he intended to actively and ag- gressively perform his duties as Local 16's Project stew- ard, that McCarty angered Manwill. For, on 26 Septem- ber following McCarty's above-described remarks to Manwill, which were made during coffeebreak in the employees' change trailer, Manwill told insulator Davis that Manwill did not intend to let anyone speak to him the way McCarty spoke to him in the change trailer during the coffeebreak. Also relevant in evaluating Respondent's motivation for McCarty's layoff is the fact that at different times Respondent has advanced different reasons for his layoff. During the unfair labor practice hearing Insulating Su- perintendent Hargan testified initially that he selected McCarty for layoff, rather than Foreman Manwill, be- cause of McCarty's unsatisfactory work performance and conduct. Subsequently, Hargan belatedly testified that besides the aforesaid reason, there was another reason why McCarty was selected for layoff, namely, Hargan thought he would be hostile and jealous if he was demot- ed from foreman to rank-and-file insulator. Prior to the unfair labor practice hearing, in defending itself against McCarty's charge in this case, Respondent submitted a statement of position to the Board's Regional Director in which it stated, in substance, that the sole reason Re- spondent selected McCarty for layoff was because on nu- merous occasions McCarty had spoken to the customer for whom Respondent was building the Project's power generator and told the customer that Respondent was not doing the insulation work according to the job speci- fications. hi his testimony concerning the reasons for McCarty's layoff, Hargan did not mention, either direct- ly or by implication, the alleged conversations between McCarty and Respondent's customer relied on in the statement of position submitted to the Board's Regional Director. I am of the opinion that Respondent's above- described inability to settle on the reason or reasons for McCarty's selection for layoff lends support to the claim that Respondent's fear that McCarty, as a rank-and-file employee, would actively pursue his duties as Local 16's Project steward was a motivating factor in Respondent's decision to lay him off. See NLRB v. Teknor Apex Co., 468 F.2d 692, 694 (1st Cir. 1972), quoting A. .I. Krajewski Mfg. Co. v. NLRB, 413 F.2d 673, 676 (1st Cir. 1969) ("an unfavorable inference may be drawn against the compa- ny for its inability to settle upon an explanation for the discharge. This failure in itself lends support to the BABCOCK & WILCOX CONSTRUCTION CO. _ . 641 theory that the employees' union support was the real explanation"); NLRB v. Schill Steel Products, 340 F.2d 568, 573 (5th Cir. 1965); and NLRB v. Georgia Rug Mill, 308 F.2d 89, 91 (5th Cir. 1956). As I have described in detail supra, each of the reasons advanced by Respondent to justify McCarty's layoff, whether advanced during the hearing' or in its statement of position to the Regional Director, was either without substance and/or in the nature of a pretext. The lack of substance and the pretextual nature of the reasons ad- vanced by Respondent to justify McCarty's layoff, to- gether with the other factors set forth above, further support the inference that the reason for McCarty's se- lection for layoff was Foreman Manwill's fear that as a rank-and-file employee he would actively pursue his duties as Local 16's Project steward. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The aforesaid considerations—Foreman Manwilrs knowledge that McCarty would be Local 16's Project steward when he began work as a rank-and-file insulator under Manvvill's supervision, Manwill's knowledge and belief that McCarty intended to actively and aggressively perform his duties as Project steward, Manwill's anger at having learned that McCarty intended to actively pursue has duties as Project steward, the timing and abruptness of McCarty's layoff coming only a few hours after his appointment to the position of Local 16's Project stew- ard and only a few hours after Insulating Superintendent Hargan and Foreman Manwill had indicated he would not be among those selected for layoff, the inability of the Respondent to settle on an explanation for McCarty's layoff, and the lack of substance and the pretextual nature of the reasons advanced by Respondent to justify McCarty's selection for layoff—when considered in their totality persuade me that Foreman M anwill in effectively recommending McCarty's layoff was motivated by his fear that, when McCarty began work the next workday under his supervision as a rank-and-file insulator, McCarty would actively and aggressively pursue his duties as Local 16's Project steward. Having found that Foreman Manwill was the keyper- son in management's decision to lay off McCarty and that Insulating Superintendent Hargan was only nominal- ly involved in the decision, and having also found that Foreman Manwfil, in effectively recommending McCar- ty's layoff, was motivated by his fear that McCarty would actively and aggressively pursue his duties as Local 16's Project steward when he started work the next day as a rank-and-file employee, I find that the Gen- eral Counsel has established by a preponderance of the evidence that a motivating factor in Respondent's deci- sion to lay off McCarty was its fear that when he com- menced work as a rank-and-file employee that he would actively and aggressively pursue his duties as Local 16's Project steward. 38 In view of this and because it is a 38 It makes no difference that Insulating Superintendent Hargan and Project Superintendent Frost, the management officials who made the ul- timate decision to select McCarty for layoff, may not have had this motive. For, as I have found supra, Hargan and Frost were only nomi- nally responsible for McCarty's layoff, whereas Foreman Manwill, having effectively recommended McCarty's layoff, was the keyperson m management's decision. Manwill, as I have found supra, knew that violation of Section 8(a)(3) and (1) of the Act for an em- ployer to discriminate against an employee because of the employee's activity as a union steward, the Respond- ent, in order to avoid liability for McCarty's layoff under Section 8(a)(3) and (1) of the Act, must establish by a preponderance of the evidence that it would have laid him off even absent his appointment as Local 16's Project steward. See Wright Line, 251 NLRB 1083 (1980). See also NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Respondent has failed to meet its burden. For, as I have found previously in this deci- sion, Respondent's reasons for selecting McCarty for layoff, in particular Hargan's testimony that Null in- structed him to lay off one of the two insulator foremen, were completely without substance and/or in the nature of a pretext. Based on the foregoing I fmd that Respondent violated Section 8(a)(3) and (1) of the Act by laying off McCarty on 26 September because of its fear that, when McCarty commenced to work as a rank-and-file employee, he would actively perform his duties as Local 16's Project steward.39 In so concluding I have considered that it is not a vio- lation of the Act for an employer to refuse to hire an ap- plicant because of the applicant's union activity engaged in while previously employed by the employer as a statu- tory supervisor. See Vail Associates, 186 NLRB 139, 141- 142 (1970). I am persuaded, however, that the instant case is governed by Columbus Iron Works Co., 107 NLRB 1354 (1954), in which the Board, in pertinent part, stated (id. at 1354): We agree with the Trial Examiner that the Re- spondent violated Section 8(a)(3) of the Act by its refusal to hire former Supervisor Day in a rank-and- file capacity because it feared that he would be active in behalf of the Union.. . . This is not a case involving an employer's right to refuse to hire in a nonsupervisory capacity, a former supervisor dis- charged because he engaged in union activities. Former Supervisor Day was laid off from his super- visory position and was not recalled to that position for economic reasons, as the Respondent contended and proved, and not because of his activities in behalf of the Union. In the instant case Respondent refused to employ McCarty in a rank-and-file capacity because it feared that as Local 16's Project steward McCarty would be active on behalf of that Union while employed as a rank- and-file employee. Also, as in Columbus Iron Works, this McCarty would be Local 16's Project steward when he began work as a rank-and-file employee under Manwill's supervision and Manwill was an- gered by this. See Grand Rapids Die Casting Corp. v. NLRB, 831 Fid 112 (6th Cir 1987), and Boston Mutual Lift Insurance Co. a NLRB, 692 F.2d 169 (1st Cir. 1982). 39 Although it is not alleged in the complaint as a violation of the Act, counsel for the General Counsel argues that Respondent's 6 October re- fusal to hire McCarty also violated Sec. 8(a)(3) and (1) for the same rea- sons as McCarty's 26 September layoff violated the Act. I have not passed on this contention because, even assuming Respondent's 6 October refusal to hire McCarty violated Sec. 8(a)(3) and (1), it would not materi- ally change the remedial order in this case. 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is not a situation involving an employer's right to refuse to hire in a nonsupervisory capacity a former supervisor discharged because he was engaged in union activities while employed as a supervisor. Here McCarty was in effect laid off from his supervisory position for economic reasons and not because of his activities on behalf of Local 16. I realize that the Court of Appeals for the Fifth Circuit in Columbus Iron Works refused to enforce the Board's Decision and Order. NLRB v. Columbus Iron Works, 217 F.2d 208 (5th Cir. 1954). Nevertheless, as an administrative law judge of the Board I am obligated to follow Board precedent where a conflict exists between the Board and court decisions. See, for example, Insur- ance Agents (Prudential Insurance), 119 NLRB 768, 772- 773 (1957). In any event, the essential consideration in the court's opinion that resulted in the court's refusal to enforce Columbus Iron Works is not present in this case. There, the court accepted the respondent's argument that "it had a right to refuse employment to Day because he had engaged in union activities while he was a foreman," because, the court concluded, "[a] person who has been disloyal in one capacity may be disloyal in another." NLRB v. Columbus Iron Works Co., 217 F.2d at 209-210. Here there is insufficient evidence to establish that McCarty engaged in activities on behalf of Local 16 while employed as a supervisor. Moreover, even if the record does establish that he had done so, the record, as I have described supra, establishes that this was not the consideration that motivated Respondent's decision not to continue to employ him as a rank-and-file employee. D. The Refusal to Rehire Davis The complaint in Case 20-CA-21027 alleges in essence that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Davis on 6 October because of union and/or concerted activities. For the reasons set forth hereinafter I find that the General Counsel has proven by a preponderance of the evidence that a moti- vating factor in Respondent's 6 October decision not to hire Davis was Foreman Manwill's hostility toward him because Davis had been Local 16's Project steward when he had been previously employed by Respondent at the Project under Manwill's supervision." The record reveals that Foreman Manwill was the keyperson in management's 6 October decision not to rehire Davis and reveals that the other members of man- agement involved in the decision—Insulating Superin- tendent Hargan and Project Manager Null—were only nominally involved. Thus, as described in detail supra, Manwill testified that when he observed that McCarty and Davis on 6 October had been dispatched by Local 16 to the Project, that he immediately went to Insulating Superintendent Hargan, that he recommended to Hargan that Davis and McCarty not be hired because "the job is going smooth now and we do not need a disruptive force," and that Hargan replied by simply stating that he agreed with Manwill's recommendation and told him to 40 As I have previously indicated, the law is settled that it is a viola- tion of Sec 8(a)(1) and (3) of the Act for an employer to discnminate against an employee because of the employee's activity as a union stew- ard. speak to Project Manager Null about the matter. And, as I have found supra, Manwill went to Null and told him that he did not want to hire McCarty or Davis because they were "troublemakers" and, in response, Null stated that because Manwill was the foreman that if he did not want Davis or McCarty working under his supervision that Null would abide by his decision. In view of these circumstances it is clear that Respondent's 6 October re- fusal to hire Davis Was based on Foreman Manwill's ef- fective recommendation and that Manwill's superiors in the supervisory hierarchy were only nominally involved in the decision.4' The record establishes that Foreman Manwill effec- tively recommended that Respondent not hire Davis be- cause Davis, when previously employed at the Project, had been Local 16's Project steward. My reasons for reaching this conclusion follow. On 29 September Local 16's business agent Andrews appointed Davis to be Local 16's Project steward in place of McCarty who, as I have found supra, was termi- nated by Foreman Manwill the previous workday, An- drews at this time also instructed Davis to look at the job specifications for the insulation work being per- formed to be sure that the work was being done accord- ing to the job specifications." Later that same morning Manwill told Davis he had heard Davis had been ap- pointed Local 16's Project steward. Davis acknowledged this was true and at the same time asked to see the job specifications for the insulation work being performed. Manwill responded by warning that Davis, like McCarty, would be terminated if he asked too many questions, like McCarty had done, about the insulation work. In other words, the record establishes that Davis, promptly on being appointed Local 16's Project steward, made it clear to Foreman Manwill, by requesting as steward to see the job specifications, that he intended to actively perform his duties as Local 16's Project steward and that Manwill responded by threatening to fire him if he actively pursued his duties as steward. Also relevant in evaluating Respondent's motivation for its 6 October refusal to hire Davis is that at different times Respondent has advanced different reasons for its conduct. In its statement of position submitted to the Board's Regional Director prior to the unfair labor prac- tice hearing in this case, Respondent stated its reason for not hiring Davis on 6 October was because he had previ- ously quit his job at the Project and that in view of this he was not eligible to be rehired because of the Respond- ent's policy of not hiring former employees at a project where they had been previously employed and quit. During the hearing, Respondent did not present evidence 41 1 also note that Hargan testified that Foreman Manwill possessed the authority to effectively recommend the hiring and firing of the insula- tors employed under his supervision, thus Respondent's conduct on 6 Oc- tober of, in effect, delegating the decision not to hire Davis and McCarty to Foreman Manwill is perfectly consistent with Manwill's customary au- thority. 42 Previously that day Andrews had informed Project Manager Null and Project Superintendent Frost that several of the insulators had com- plained to Andrews about the way the insulation work was being done, that they did not feel the job specifications were being followed, and that they had told him that the work was "shoddy." BABCOCK & WILCOX CONSTRUCTION CO. 643 to show that a reason or the reason for its refusal to hire Davis was due to the policy set forth in its statement of position, and does not rely on this reason as a justifica- tion for its conduct. Instead Insulating Superintendent Hargan testified that his reason for refusing Davis was that, when Davis had previously quit work at the Project, he had told Hargan that he would not work under the supervision of Foreman Manwill, the only in- sulator foreman employed at the Project. Manwill, on the other hand, testified that in effectively recommend- ing to Hargan and Null that Davis not be hired, that, in addition to the above reason offered by Hargan, he based his recommendation on several additional considerations, namely, that when Davis was previously employed under ManwilPs supervision that Davis had been a "non- performer," and "ship disturber" or a "disruptive force" who had created problems on the job. Also, as I have found supra, when Manwill spoke to Null and recom- mended that Davis not be hired, he supported his recom- mendation by explaining to Null that Davis had been a "troublemaker" when previously employed. The above- described inability to settle on the reason or reasons for its refusal to hire Davis on 6 October lends support to the General Connsel's claim that Davis' activity as Local 16's Project steward was a motivating factor in Respond- ent's decision not to hire him See NLRB v. Teknor-Apex Co., 468 F.2d 692, 694 (1st Cir. 1972); NLRB v. Schill Steel Products, 340 F.2d 568, 573 (5th Cir. 1965); NLRB v. Georgia Rug Mill, 308 F.2d 89, 91 (5th Cir. 1962). In addition to its inability to settle on a reason for its refusal to rehire Davis, Respondent's Project manager Null and Insulator Foreman Manwill on 6 October, in response to McCarty's request for an explanation for Re- spondent's refusal to hire either Davis or McCarty, re- fused to state any reason but instead threatened to have Davis and McCarty arrested if they did not promptly vacate the premises. Respondent's refusal to give Davis an explanation for its refusal to hire him lends additional support to the General Counsel's claim that Respondent's refusal to hire Davis was discriminatively motivated. As I have described supra, each of the reasons ad- vanced by Respondent for its refusal on 6 October to hire Davis, whether advanced at the hearing or in its statement of position, was completely unfounded and without any substance whatsoever; it either did not exist or no evidence was presented to prove that it existed. This circumstance, when considered together with the other circumstances set forth above, further supports the inference that the real reason for Respondent's refusal to hire Davis was because of his activity as Local 16's Project steward. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). This inference is especially appropriate in the instant situation because the only support in the record for Manwill's character- ization of Davis as being a "troublemaker" and a "ship disturber" or "disruptive force" who had created prob- lems on the job is Davis' conduct as Local 16's Project steward. Also relevant in evaluating Respondent's motive for refusing to hire Davis is that even though it would seem that if its refusal was predicated on legitimate business considerations, it would produce harmonious explana- tions by the management officials involved; it failed to do so in the instant case. As I have described in detail supra, Foreman Manwill's testimony about Respondent's decision not to hire Davis was internally inconsistent in certain significant respects and his testimony concerning the decision did not jibe with the account of what oc- curred given by the other management official involved, Insulating Superintendent Hargan, and the third manage- ment official involved, Plant Manager Null, for some un- explained reason was not called to testify by Respondent. These circumstances bolster the inference that the deci- sion not to hire Davis on 6 October was discriminatively motivated. Lastly, Respondent's refusal to hire Davis occurred just approximately 1 week after Foreman Manwill's ter- mination of McCarty because Manwill feared that McCarty would actively perform his duties as Local 16's Project steward. Davis, on being appointed McCarty's replacement as steward, immediately indicated to Fore- man Manwill that he intended to actively pursue his duties as steward. These factors, when considered with all the other factors set -forth above, overwhelmingly demonstrate that Manwill's recommendation that Davis not be hired was motivated by Davis' activity as Local 16's steward. Considering that Davis by his conduct indicated to Foreman Manwill he intended to actively perform his duties as Local 16's steward; considering Manwill threat- ened to fire Davis if he actively performed his duties as Local 16's steward; considering the inability of Respond- ent to settle on an explanation for refusing to hire Davis; considering Respondent's refusal to give Davis an expla- nation for its refusal to hire him; considering that the several reasons advanced to justify Respondent's decision not to hire Davis were completely without substance; considering the internal and external inconsistencies be- tween the testimony of two of the three management of- ficials involved in the decision not to hire Davis and the unexplained failure of the third official to testify; and considering the timing of Manwill's recommendation that Davis not be hired, coming right after Manwill's recom- mendation that McCarty be laid off because Manwill feared McCarty would actively perform his duties as Local 16's steward—these considerations, in their totali- ty, have persuaded me that Foreman Manwill in effec- tively recommending that Respondent not rehire Davis was rnotived by the fact that when previously employed at the Project, Davis had been Local 16's Project stew- ard. Having found that Foreman Manwill was the keyper- son in management's decision not to rehire Davis on 6 October and that Insulating Superintendent Hargan and Project Manager Null were only nominally involved in the decision, and having also found that Foreman Man- will in refusing to rehire Davis was motivated by the fact that when Davis had been previously employed at the Project by Respondent, he was Local 16's Project steward, I fmd that the General Counsel has established by a preponderance of the evidence that a motivating factor in Respondent's refusal on 6 October to rehire Davis was that, when previously employed by Respond- 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent at the Project, Davis had been Local 16's Project steward.43 In view of this and because it is a violation of Section 8(a)(3) and (1) of the Act for an employer to dis- criminate against an employee because of the employee's status or activity as a union steward, Respondent, in order to avoid liability under Section 8(a)(3) and (1) of the Act for its refusal to rehire Davis, must demonstrate by a preponderance of the evidence that it would have refused to hire Davis on 6 October even absent his having been Local 16's steward when previously em- ployed at the Project. See Wright Line, 251 NLRB 1083 (1980). See also NLRB v Transportation Management Corp., 462 U.S. 393 (1983). Respondent failed to meet its burden. For, as I have found supra, Respondent pro- duced no evidence to support some of the reasons it ad- vanced to justify its refusal to hire Davis and, regarding the remaining reasons, the evidence establishes they were completely without substance—they did not exist. Based on the foregoing, I find that Respondent violat- ed Section 8(a)(3) and (1) of the Act by refusing to hire Davis on 6 October because Davis, when previously em- ployed at the Project by Respondent, had been Local 16's Project steward. THE REMEDY Having found that Respondent violated Section 8(a)(3) and (1) of the Act by laying off Dennis McCarty on 26 September 1986 because of its fear that, when he began work as a rank-and-file employee on 29 September 1986, he would actively perform his duties as Local 16's Project steward, and having found that Respondent fur- ther violated Section 8(a)(3) and (1) by refusing to rehire Raymond Davis on 6 October 1986 because Davis had been Local 16's Project steward when previously em- ployed, I shall recommend that Respondent cease and desist from these unfair labor practices and to take ap- propriate affirmative action to effctuate the policies of the Act. I note that even though the record indicates that the construction phase of the Project ended about 13 Febru- ary 1987, I have recommended the Board's traditional make-whole remedy for the unfair labor practices found herein, with the understanding that all reinstatement and backpay issues posed by the completion of the construc- tion phase of the Project will be resolved by a factual inquiry during the compliance stage of this proceeding. See Dean General Constructors, 285 NLRB 573 (1987). However, in view of the fact that the construction phase of the Project has ended, I Shall recommend that the Re- spondent mail copies of the notice recommended herein to each employee employed by Respondent on the Project as an insulator during the period of 26 September 48 It makes no difference that Insulating Superintendent Hargan and Project Manager Null, the management officials who made the ultimate decision not to rehire Davis, may not have had this motive in approving Foreman Manwill's recommendation that Davis not be rehired. For, as I have found supra, Hargan and Null were only nominally responsible for Respondent's refusal to rehire Davis, whereas, Foreman Manwill, having effectively recommended that Respondent not rehire Davis, was the key- person in management's decision. Manwill, as I have found supra, in rec- ommendmg against Davis' rehire was motivated by the fact that Davis previously had been employed as Local 16's Project steward. through 6 October 1986, the time of the unfair labor practices herein. See Daniel Construction Co., 239 NLRB 1335 fn. 1 (1979), enfd. 634 F.2d 621 (4th Cir. 1980); Bell & Howell Schools, 226 NLRB 601 fn. 2 (1976); Wolfson Mfg. Co., 197 NLRB 970 (1972); M W. Kellogg Con- structors, 273 NLRB 1049 (1984). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 4 ORDER The Respondent, Babcock & Wilcox Construction Co., Inc., Marysville, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Laying off or refusing to hire or in any other manner discriminating against any employee because of the employee's activity on behalf of International Asso- ciation of Heat and Frost Insulators and Asbestos Work- ers, Local Union No. 16, AFL-CIO or any other union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Dennis McCarty immediate and full reinstate- ment to the rank-and-file position he would have filled on 29 September 1986 and offer Raymond Davis imme- diate and full reinstatement to the position he would have filled on 6 October 1986 or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges previously enjoyed, and make them whole, with inter- est,43 for any loss of earnings, and other benefits suffered as a result of the discrimination against them. (b) Remove from its files any reference to Dennis McCarty's unlawful layoff and its unlawful refusal to rehire Raymond Davis and notify those employees in writing that it has done so and that it will not use the layoff or refusal to rehire against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Mail a copy of the attached notice marked "Ap- pendix"46 to each individual it employed as an insulator 44 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. 46 In accordance with the Board's decision in New Horizons for the Re- tarded, 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 26 U.S C. § 6621) shall be computed m accordance with Florida Steel Corp., 231 NLRB 651 (1977). 46 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- Continued BABCOCK & WILCOX CONSTRUCTION CO. 645 on the Feather River Cogeneration Project from 26 Sep- tember through 6 October 1986. Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized repre- sentative, shall be mailed by Respondent immediately upon receipt. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT lay off or refuse to hire or otherwise discriminate against any of you for your activity on behalf of International Association of Heat and Frost In- sulators and Asbestos Workers, Local Union No. 16, AFL-CIO or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Dennis McCarty immediate and full re- instatement to the rank-and-file position he would have filled on 29 September 1986 and offer Raymond Davis immediate and full reinstatement to the position he would have filled on 6 October 1986 or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges previously enjoyed, and make them whole, with in- terest, for any loss of earnings, and other benefits suf- fered as a result of the discrimination against them. WE WILL remove from our files any reference to Dennis McCarty's unlawful layoff and our, unlawful re- fusal to hire Raymond Davis and notify them in writing that we have done so and that we will not use the layoff or refusal to hire against them in any way. BABCOCK & WILCOX CONSTRUCTION CO., INC.