Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 521 (N.L.R.B. 1969)

COMBUSTION ENGINEERING, INC.
Combustion Engineering, Inc. and International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, Lodge No.
169, AFL-CIO. Case 7-CA-6783
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On March 19, 1969, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner' s Decision . Thereafter, the General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , and the entire record in the
case, including the exceptions and briefs, and hereby
adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
In his exceptions, the General Counsel contends,
inter alia , that the Respondent harbored
considerable animus toward Bird, the alleged
discriminatee, for his filing of a grievance
concerning overtime pay, and for his protest
concerning the amount of showup pay to be paid on
the day the crew was terminated; and that the
Respondent condoned any inferior work
performance prior to the hydrostatic test incident,
and thereafter condoned any activity by Bird
involving that incident , by retaining Bird as an
employee until the layoff of the crew on which he
worked. We find no merit in these contentions.
In regard to the question of animosity, the Trial
Examiner correctly noted that the Respondent was
informed by the union steward, prior to its hiring of
Bird, that Bird was an agitator and would make
trouble and that pursuant to the contract it did not
have to hire Bird, but that in spite of this warning
the Respondent did employ Bird on the Trenton
'These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner to which the Charging Party and the
General Counsel have excepted . After a careful review of the record, we
conclude that the Trial Examiner ' s credibility findings are not contrary to
the clear preponderance of all the relevant evidence . Accordingly, we find
no basis for disturbing those findings . Standard Dry Wall Products, inc.,
91 NLRB 544, enfd . 199 F.2d 362 (C A. 3).
521
Channel job, and assigned him to a foreman who
was his personal friend. The General Counsel,
however, points to the memorandum and testimony
of Respondent's Superintendent Stanley, who
referred to Bird as "the great emancipator" and "A
self-styled, self-appointed supersteward." In our
opinion, while these characterizations appear rather
derogatory, they are not demonstrative of
considerable animus on the part of the Respondent.
Finally, it is only logical that the complaints and the
memorandum regarding Bird would arise when they
did, following within a reasonable time the actions
of this employee, and the completion of the work.
In regard to the question of condonation of Bird's
activities, the validity of Respondent's reason for
not firing Bird, because they were afraid of a work
stoppage among the followers of Bird, is shown not
only by the support given to Bird by other
employees in his actions on the Trenton Channel
job, but especially by the walkout which occurred on
the St. Clair jobsite after the Respondent refused to
hire Bird , which walkout occurred in spite of
instructions by union officials not to take any such
action. In view of the above, and for the reasons set
forth by the Trial Examiner, we adopt his decision
in this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on May 28, 1968, by International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers,
and Helpers, Lodge No. 169, AFL-CIO, herein called the
Union or the Boilermakers , the Regional Director for
Region 7 of the National Labor Relations Board, herein
called the Board , issued a complaint on July 31 , 1968, on
behalf of the General Counsel of the Board against
Combustion Engineering, Inc., herein called the Company
or the Respondent , alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151, et seq.), herein called the Act. In its
duly filed answer to the complaint, the Respondent, while
admitting certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice , the hearing in this case was held
before me in Detroit, Michigan , on October 9, 10, 31, and
November 1, 1969. All parties were represented and were
afforded full opportunity to be heard, to introduce
relevant evidence , to present oral argument, and to file
briefs. Briefs were filed by the General Counsel and the
Respondent. Upon consideration of the entire record,
including the briefs of the parties , and upon my
observation of each of the witnesses as they appeared
before me , I make the following:
177 NLRB No. 35
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent maintains its principal office and place of
business in the city and State of New York Respondent
maintains other places of business in the State of
Michigan and several other States of the United States.
At these various places Respondent is engaged in the
manufacture, sale and distribution of steam generating
equipment, air and water pollution control equipment, and
related products. The St Clair jobsite at St. Clair,
Michigan, and the Trenton Channel jobsite at Marine
City, Michigan, are the only jobsites involved in this
proceeding.
During the year ending December 31, 1967, a
representative period, the Respondent sold and distributed
at its State of Michigan places of business, products of a
value in excess of $50,000, which products were shipped
from said places of business directly to points located
outside the State of Michigan. During the same period,
Respondent purchased and caused to be transported and
delivered to its State of Michigan places of business, raw
metal products and other goods and materials of a value
in excess of $50,000, which were transported and delivered
to its places of business in the State of Michigan directly
from points located outside the State of Michigan.
It is conceded, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Thomas Bird, a member of the Union, was employed
as a night-shift boilermaker by the Respondent in the
erection of a very large steam power boiler for the Detroit
Edison Company at Trenton Channel in the Detroit,
Michigan, area. During his employment, several incidents
occurred in which grievances were aired by Bird directly
to the Respondent's management on the jobsite despite
the fact that there was a Boilermaker job steward on the
job. Respondent also alleges that Bird did not perform up
to standard in his work.
After the Trenton Channel work for night-shift
boilermakers was completed and Bird was laid off with
the rest of the night boilermaker crew, a second job of
erecting a similar boiler was begun by Respondent at St.
Clair, Michigan, in the Detroit area, also for Detroit
Edison. Through the union hiring hall, Bird was referred
to the job and was refused employment by the
Respondent's chief erector.
Counsel for the General Counsel and the Union allege
that Bird was refused employment by Respondent because
Bird had engaged , in airing the grievances , in protected,
concerted and union activity. Respondent, on the other
hand, contends that it refused Bird employment for good
cause, mainly, that Bird had not performed up to standard
on the Trenton Channel job and because he had been
insubordinate.
Thus, the issues presented by the pleadings and the
opposing contentions are:
1. Did Bird engage in protected activities when airing
grievances at the Trenton Channel job?
2. Was Bird's work performance on the Trenton
Channel job sub-standard?
3. Did Respondent refuse to hire Bird for the St. CLair
job because Bird engaged in protected, concerted and
union activity on the Trenton Channel job?
B. The Facts
All of the field erection employees of the Respondent,
on its various projects all over the country, are
represented by unions. In order to resolve potential labor
conflicts, in 1962 Respondent inaugurated prejob
conferences with all the unions with which it deals. In the
7 years since, the charge in the instant proceeding is the
only one ever filed against the Respondent.
In the latter part of 1966 and the early part of 1967,
following the usual prejob conference with the various
unions including the Charging Union herein, the
Respondent began to erect, under contract with Detroit
Edison, a steam generating unit at a total cost of
approximately $20 million. The size of the boiler to be
erected by Respondent was to reach 14 stories.
While the work on the project was progressing, on June
23, 1967, Ed Meyerhoffer, the boilermaker steward on the
jobsite told night shift erectors (superintendents) Richard
Nabors and William Lemons that a man named Tom
Bird was being referred to the job who was an agitator
and would bring trouble. Meyerhoffer suggested that
pursuant to the contract, they did not have to hire Bird.
Nevertheless, Nabors and Lemons, thinking that
Meyerhoffer had a personal grudge against Bird, did not
take the action suggested by Meyerhoffer and Bird was
hired for work as a boilermaker on the job.' Neither
Nabors nor Lemons knew Bird and had not knowledge
that Bird , a member of the Union, had been on the Union
Negotiating Committee since 1957 and, from 1963 to 1966
had been the Union' s business representative. During 1966
Bird tried for reelection to the post but was defeated by
the present business representative, Harold Rasmussen.
Thus Bird had been somewhat of a leader in the Union
and had a following among the members, some of whom
were employed by the Respondent on the Trenton
Channel Job.'
After Lemons hired Bird , the latter was assigned to a
crew working with Carl Henni, a boilermaker foreman
(pusher) who was a friend of Bird. Henni gave Bird the
assignment of operating a signal telephone used in
conjunction with the operation of hoisting and lowering
material . Henni told Nabors that this assignment was
given Bird because the latter could not physically perform
strenuous rigging work . At times, while Bird was so
employed, both Nabors and Lemons found him reading
racing forms when he was supposed to be working. Bird
would also use the public telephone on the site upon many
occasions when he was absent from his work station for
periods of from 30 to 40 minutes. Also, Bird went to the
restroom excessively and for long periods of time. At
times when Bird was away from his work station, Lemons
observed Henni performing Bird's work.'
'From the uncontroverted testimony of Nabors and Lemons which I
credit
'From the credited testimony of Bird
'From the credited testimony of Nabors and Lemons I do not credit
COMBUSTION ENGINEERING , INC. 523
Upon numerous occasions both Nabors and Lemons
spoke to Henni about this situation and told Henni that
Bird was not performing his job. Nabors and Lemons also
spoke to Parkhill, general foreman of the Boilermakers,
and to Edward Rokuski, the job steward. Neither Lemons
nor Nabors spoke directly to Bird because they
interpreted the bargaining agreement between the
Respondent and the Union as permitting only foremen to
speak directly to rank-and-file employees concerning
employees' job performance.'
Although Henni denied on the witness stand that he
ever spoke to Bird about these matters, Rokuski testified
that he spoke to Bird about the complaints of Nabors and
Lemons. Rokuski further testified that it was common
knowledge that both Rokuski and Henni spoke to Bird
about the latter's work performance.
On one occasion Bird was involved in an unauthorized
departure from the jobsite. He left early to go to a union
meeting but instead of checking out his badge he gave the
guard at the gate a false number so that the time would
not be deducted from his pay. Nabors discovered this in
performing his paper work later that night and deducted
this time from Bird's pay. Bird did not complain or file
any grievance over the matter.'
At the time that Bird was employed on the Trenton
Channel job, the Respondent was operating on an
accelerated schedule and the men were working overtime
everyday. The steam generator or boiler had to be
completed and in operation by December 1967, or there
was a very real possibility that there might be loss of
electric power in the Detroit area.'
By August 20, 1967, the Respondent began what is
known as a hydrostatic test on the boiler. This is the test
which determines whether a boiler can withstand pressure
greater than the strength for which it is designed once the
boiler is put into operation. The purpose of the test is to
uncover any defect which might exist in the boiler or the
parts which feed the boiler. Although a detailed
description of this test is unnecessary for the purpose of
this decision, simply put, the boiler is filled with water and
an air pressure pump is then connected to the boiler to
bring the boiler up to the necessary pressure. If there are
leaks in the boiler the pressure forces water out through
the leaks and they are thereby detected. When leaks
occur, the boiler is drained to a point below the leak and
repairs are then made. Thereafter, the pressure is built up
once again and if no leaks or other defects appear, the
boiler is checked out by insurance company inspectors for
their final approval before acceptance by the company for
whom the boiler is built.
At Trenton Channel, the test of the boiler began during
the day shift on August 20, 1967. After the boiler had
been filled up and the pressure built up to approximately
1,500 pounds, a leak was discovered. The boiler was then
drained below the level of the leak and repairs were begun
during the night shift by the night shift crew. At that time,
the quitting time for the shift was 3:30 a.m. However, in
order to complete the repairs, the night shift continued
working on the repairs until the day shift reported at 7
a.m.' The day shift finished the repairs on August 21.
Henni's testimony to the contrary
From the credited testimony of Lemons and Nabors as supported by
the testimony of Henni and Rokuski.
'From the credited testimony of Nabors which went undemed by Bird on
rebuttal
From the uncontroverted , credited testimony of Raymond R Donahue,
Respondent' s district superintendent
Thereafter the boiler was again filled and pressure was
again applied. When the pressure had reached
approximately 4,000 pounds, which was almost the full
test pressure, another leak was discovered. Thereafter the
boiler was again drained to a depth below the leak. Again
the night shift worked at repairing the leak until the day
shift reported in at 7 a.m. on the 22nd.
The leak repair was finished by the day shift on August
22 and the day crew again began filling the boiler. This
filling of the boiler and pressurizing the same was
continued into the night shift which began on the 22nd
and ran into the morning hours of the 23rd. At
approximately 2 a.m., which was 1 1/2 hours before the
end of the night shift, the pressure had reached the full
test mark of 4,485 pounds. The night shift erectors,
Nabors and Lemons, were satisfied that the boiler was in
good condition, as they could find no more leaks, and the
boiler was holding the pressure. They therefore considered
the boiler ready for the insurance inspectors who were to
come in to make their inspection after daylight that day.
Because the end of the night shift was at 3:30, Nabors and
Lemons had the pump closed down and proceeded to their
field office.'
Thereafter, Lemons and Nabors went to the general
foreman, Parkhill, and the union steward, Meyerhoffer,
and told them that there was going to be no further
testing on the boiler that night; that they did not want
anyone inside it and all they wanted to keep on the shift
was three or four men from the end of the night shift until
the day shift came in. To this Parkhill and Meyerhoffer
agreed. Lemons had made up his mind to do this because
the test was virtually at an end and there was no necessity
for anyone to be in attendance on the boiler except for
two or three men to see to it that the employees of
Detroit Edison did not wander into the area and perhaps
turn valves or do something which could interfere with the
test. All of the foregoing took place close to the 3 30 a.m.
quitting time of the night shift.
Just as Nabors and Lemons were about to start their
paperwork in their field office, in came Bird, Henni, an
employee named Dubie Peardon, and Meyerhoffer. It
should be noted in connection therewith that up to this
point the Respondent had used 12 men to make the
hydrostatic test and these 12 boilermakers were working
up to this point on the night shift. However, as noted
above, only two or three or perhaps four were to remain
on the job between the end of the night shift and the
beginning of the morning shift.
Prior to these four employees coming to the office, Bird
had learned of the decision to keep on only three or four
men from Parkhill.' Bird and Foreman Henni then spoke
to Meyerhoffer who was positioned outside of the
toolroom. Bird and Henni began arguing with
Meyerhoffer about the Company's decision to keep the
four men. Meyerhoffer went in to the toolroom and Henni
followed screaming after him. Bird came to the door of
the toolroom.'° When the four men went to the office used
by Lemons and Nabors, Bird spoke first and questioned
Lemons as to why only four men were being kept on the
job. Lemons stated that the tests were completed except
for the insurance inspection in the morning and they only
needed a few people to virtually stand guard until the day
'From the credited portions of the testimony of Bird, Lemons, and
Nabors
'From credited portions of testimony of Bird, Lemons, and Nabors
'From the testimony of Bird.
"From the credited testimony of employee William Martt
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift arrived . Bird and Henni then both demanded that 12
men be kept on the job, this constituted the full crew of
the night shift . They claimed that it was custom in
Michigan to keep on a full crew until the test was
completed ; that it was also a safety measure . Then Bird
told Lemons that if they did not keep on the full 12 men
of the night shift until the morning shift arrived, he would
go out and "blow the damn thing down" and they would
all go home ." By "blowing the damn thing down," Bird
meant that they would relieve the pressure on the boiler
and drain it, thereby undoing all the work that had been
done previously by the day crew and the night crew.
Despite these threats, at first Lemons refused and said
only four men were to be kept on.
There is some confusion in the record as to exactly
what occurred next . However , it is certain that Bird put in
a telephone call to the union business agent . The agent
that was called was a Mr. Crippen. Whether Bird spoke
to Crippen or whether Bird merely got Crippen on the
telephone and then Henni spoke to Crippen is not clear
from the record. Suffice it to say, however, that while
Bird was making the telephone call Henni and Lemons
were arguing in the background ." Meyerhoffer then spoke
to Crippen and explained to the latter why the
Respondent only wanted four men to be kept on. Henni
interrupted and grabbed the telephone from Meyerhoffer.
Next Lemons got on the telephone and spoke to Crippen.
Lemons told Crippen that the hydrostatic test had been
completed and that there was nothing further to be done
until the insurance inspectors arrived the next morning.
Crippen requested that Lemons keep all the men to avoid
trouble. Lemons finally capitulated. According to Lemons
the reason he finally consented to keep on the full crew
was that if the men did blow the boiler down, as Bird had
threatened, the boiler could not possibly be ready for the
insurance inspection the next day. This would have created
a problem with the job schedule which, as noted above,
was to be completed by December 1967, in order to insure
sufficient electrical facilities for the city of Detroit.
Therefore , with Lemons ' ultimate consent, the full crew
stayed on during the night until the day crew arrived at 7
a.m. in the morning."
The next morning, Meyerhoffer, who had argued with
Bird , quit in disgust . He felt , according to various
witnesses , that his authority as steward had been
undermined by Bird. Around the same time that
Meyerhoffer quit , the boiler was inspected and it was
approved by the insurance underwriters . On the next
night, August 23 , when the night shift came on, a new
steward took over . His name was Edward Rokuski.
During the next week , Bird was involved in another
incident . He complained to steward Rokuski that the
Respondent had failed to pay him double time for making
him work through a lunch period . Rokuski , in his capacity
as steward , called Rasmussen and the local union
president . Both the president and Rasmussen agreed at
first that Bird was not entitled to the double pay he
claimed . However , a grievance was filed and the
"From credited testimony of Lemons and Nabors.
"From credited portions of the testimony of Martt , Henni , and Lemons.
"All of the foregoing from credited testimony of Lemons . Cnppen did
not testify . It should be noted that in connection with the threat to blow
the boiler down , Henni claims that he was the one who threatened to drain
the boiler . However , Henni did not even understand what the term "blow
the boiler down " meant, and it could not have been Henm , in my opinion,
who made the remark . I therefore credit the testimony of Lemons as
supported by the testimony of Nabors both by reason of the foregoing and
by observation of them on the witness stand.
Respondent reviewed its position and finally agreed to pay
Bird the overtime money.16
Approximately a week or two later, as of September 1,
1967, Raymond Donahue was appointed district
superintendent for erection by the Respondent . As such
Superintendent Donahue was in charge of the area
including Detroit , Michigan.
A couple of weeks after Donahue's appointment,
Nabors noticed one night that Bird was not at his work
station. He went to the restroom but could not find Bird
there. This was about an hour and a half before quitting
time . Nabors continued his search until quitting time
when he stationed himself at the end of a bridge which
overlooked a canal leading to the employees' dressing
room. At quitting time , when all of the other employees
came over the bridge to change their clothes, Bird was
missing . Nabors, mindful of the fact that Bird had
wrongfully left the job and given a false number sometime
before that, asked steward Rokuski where Bird was.
Rokuski became angry and told Nabors that he was tired
of this personal vendetta against Bird . He further stated
that if Nabors wanted to fire Bird that he should go ahead
and "we, (probably meaning the Union) would take it
from there." Rokuski testified that Nabors had thought
Bird had gone home early when actually Bird had missed
the elevator that would take him from the jobsite to the
bridge crossing the canal."
Soon after his appointment as district superintendent,
Donahue began to receive, through Stanley , the general
job superintendent, Nabors, and Lemons, complaints
about Bird's performance on the job. Their complaints
were to the effect that Bird was creating disturbances on
the jobsite; that he was reading racing forms and was
away from his worksite for long periods of time and that
he had threatened to "blow the job." Donahue also
received a detailed written report as to what had happened
the evening of August 22 and 23 when the decision to
reduce the crew had been reached by Lemons and Nabors
during the hydrostatic test. However, according to
Donahue , although he considered terminating Bird he was
reluctant to do so. He learned that Bird had considerable
influence among the employees on the job and Donahue
was not willing to take a chance of a work stoppage
because of the deadline for the completion of the boiler.
On October 10, 1967, it was determined that the night
shift was no longer necessary and they were terminated.
This decision was made on instructions from Detroit
Edison and had not been expected. Therefore, Nabors had
to hurriedly go to the office to prepare the payroll. The
night crew had not yet quite reported but when they came
they were told that they were not to work but were laid
off. With that, Bird came to Nabors' office and demanded
of Nabors how much they were going to be paid for their
showup time. Bird explained to Nabors that he heard that
they were only going to get 2 hours showup time. Bird
insisted that they were entitled to 4 hours. According to
Nabors, Bird turned to the other employees who were
there and told them not to accept their checks. However,
after some discussion with the steward the men , including
Bird, did accept their checks and left thejob.16
On October 16, 1967, Stanley, the superintendent of the
Trenton Channel job, submitted to Donahue a written
"From credited portions of the testimony of Bird and Rokuski
"All of the foregoing testimony from credited portions of the testimony
of Nabors and Rokusk,.
"All the foregoing from the credited testimony of Nabors as supported
by certain parts of the testimony of Bird
COMBUSTION ENGINEERING, INC.
memorandum concerning Bird . In that memorandum,
Stanley told Donahue that from the time Bird came on
the job his prime purpose seemed to be to create
dissension among the men . The memorandum then
proceeded to relate Bird's part in the contentious
argument which occurred over keeping the night crew on
during the hydrostatic test on the night of August 22-23.
Then Stanley went on to tell Donahue that by reason of
Bird 's actions the Company was literally "black jacked"
into keeping on unnecessarily a large number of men
costing the Company many dollars . The memorandum
ended with Stanley ' s recommendation that Bird not be
rehired at any time or place.
About the same time , as the completion of the Trenton
Channel job approached , the Respondent began to erect a
similar boiler at the jobsite in St. Clair , Michigan, known
as the St . Clair job , James Waters was the Respondent's
erection superintendent on the job . Two employees in one
of the work crews of the boilermakers on the job had been
laid off for cause . The foreman of that crew had many
times asked Waters about replacements for these two.
Late in the afternoon of January 17, 1968 , Waters asked
William Bass , the boilermaker job steward , to telephone
the hiring hall and see if he could get the names of the
two top men on the list. Bass called the hall but there was
no answer as it was late in the afternoon . However, Bass
told Waters he would try later . Later that evening, Bass
did contact Rasmussen, the union business representative,
who in turn informed Bird and another member of the
Local to report to the job the next morning."
Bird , in accordance with Rasmussen's instructions,
reported to work at the jobsite at St . Clair the next
morning . Bass, as union steward, took him to the office
where Bird was introduced to Waters. When Waters found
out who Bird was, he told Bass that he was not going to
sign him up . When asked why he refused , Waters
admitted that he had orders not to hire Bird . Bass asked
Waters to give Bird two hours showup pay and Bass
refused this . Bass then took Bird back to the change
shanty . Then Bass tried to get in touch with Rasmussen.
Rasmussen was out of the office but finally called Bass
back at about 11 in the morning and told Bass to try to
get some kind of information from Waters . Rasmussen
also told Bass to keep everybody calm and that he,
Rasmussen , would appear at the job on the following
morning. 1e
In accordance with Rasmussen ' s instructions , Bass and
Bird accompanied by some other employees went to see
Waters again . Bass asked Waters to reconsider his
decision but again Waters refused . Then , within a short
period of time thereafter , Waters notified Bass that the
Detroit Edison people wanted Bird off their property. Bass
took Bird in the company truck to the parking lot and
Bird left. Later in the day, after Bird had left, and after
the lunch hour , most of the boilermaker employees left
the job . This shut the job down.
Early the next morning Rasmussen appeared at the St.
Clair job and told the men to go to work. Then,
accompanied by Bass he went to see Waters who told the
two that he had not ordered any men from the hall.
Waters stated that he did not tell Bass to order the men
from the hall but merely to find out who the next men on
"There is a conflict in testimony as to whether Waters actually asked
Bass to order some men for the job or whether he merely asked Bass to
find out who were the next two men on the hiring hall list . In view of my
disposition of this proceeding , I find it unnecessary to resolve this issue.
"A11 of the foregoing from the credited testimony of Bass and Waters.
525
the list were before they were ordered . Rasmussen then
telephoned Donahue who confirmed Water ' s position."
On January 22, Bird filed a grievance pursuant to the
contract with Rasmussen , as business agent of the Union.
This grievance alleged that Bird had been discriminatorily
refused hire by the Company . Seven days later he filed a
second grievance in which he claimed that the Respondent
had violated the exclusive referral clause of the contract
between the Union and the Respondent.
The grievances were processed through the
International president who assigned one of the
International vice presidents to handle it . Thereafter, on
February 17, 1968 , a meeting was held at the Union's
offices between representatives of the Respondent and
representatives of the Union . Rasmussen stated the nature
of the grievance to Donahue and an attorney for the
Respondent . After this, the attorney handed Rasmussen a
copy of the October 16 , 1967, memo Stanley had written
to Donahue concerning Bird's behavior on the night of the
hydrostatic test . At the same time he told Rasmussen that
this memorandum indicated why they were not going to
hire Bird . This was the end of that particular grievance
meeting and nothing further was accomplished.
Thereafter , the Union hired counsel to process the
grievance to arbitration but instead of going to arbitration
as the Respondent desired , pursuant to the arbitration
clause of the bargaining agreement, the Union filed the
charge which is the basis for this proceeding.
C. Analysis and Concluding Findings
Counsel for the General Counsel , as heretofore set
forth , contends that Bird was refused employment at the
St. Clair job because he engaged in protected , concerted
activity at the Trenton Channel job . He makes no
mention in his brief, nor does he attempt to overcome, the
testimony by Respondent' s officials that Bird's work
performance at the Trenton Channel job was
unsatisfactory . He argues, for the most part , that Bird, in
protesting Respondent' s management' s decision to refuse
to keep the full boilermaker crew on the job the night of
August 22-23, was engaged in protected , concerted activity
and since this was the chief reason why Bird was refused
employment at St . Clair , the Respondent's refusal was
discriminatory and violative of the Act.
The Respondent, on the other hand , contends that it
refused to hire Bird on the St. Clair job because he was
an unsatisfactory employee at the Trenton Channel job
and because in protesting during the hydrostatic test he
engaged in unprotected activity.
On the basis of the facts as set forth in the section of
this Decision immediately above , there is no doubt that
Bird did give cause as an employee for the Respondent
lawfully to refuse to hire him at St . Clair . When he was
supposed to be working Bird read racing forms, spent
time making lengthy telephone calls, went to the restroom
more frequently and for greater periods of time than was
necessary, gossiped with other employees and had Henni,
his foreman , perform his work for him . In short, he did
not perform a day's work for a day's pay.
Nevertheless , Respondent does not deny that a basic
cause of its refusal to hire Bird for the St . Clair job was
his behavior on the night of August 22-23 during the
hydrostatic test on the boiler at Trenton Channel . This is
"From the credited portions of testimony of Rasmussen and Waters On
the witness stand , however , Waters admitted that if someone but Bird had
been referred to the job Waters would have hired him.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrated in Respondent's reliance on the
memorandum of October 16, 1967, from Stanley to
Donahue, as the reason for its refusal. Respondent argues
that there was a contractual procedure to be followed if
employees had a grievance, which procedure Bird failed to
follow. Moreover, in going over the head of Meyerhoffer,
who as a job steward had assented to the Respondent's
arrangement that night, Bird ursurped Meyerhoffer's
authority and therfore, his activities were no longer
protected.
In effect, Respondent argues that employees who have
grievances they believe to be meritorious, must abide by
all decisions relating thereto made by the bargaining
representative. However, Section 9(a) of the Act gives to
employees the right to present grievances to their
employer and have such grievances adjusted, without the
intervention of the bargaining representative, as long as
the adjustment is not inconsistent with the terms of the
collective-bargaining agreement and the bargaining agent
has been given the opportunity to be present at such
adjustment. Thus, where an employee complained
personally upon numerous occasions to his employer
about matters concerning the collective-bargaining
agreement between the employer and the employer's
bargaining representative, the Board held the airing of
these grievances constituted concerted, protected activity.20
Also, the protection of Section 9(a) of the Act is
extended to dissidents who try to influence the decisions of
the bargaining agent. The court in such a case held,
"Attempts by some members of a union to bring about a
change in the union's attitude about particular
collective-bargaining contracts is certainly `concerted
activity' protected by Section 8(a)(1) of the Act. The
Employer cannot defend his interference by saying that
concerted activity was directed against the position taken
by the Union and not directly against the employer.""
The merit or lack of merit of the grievance is immaterial.
The protection of the Act is still available.22 Thus it would
seem, and I conclude, that Bird's disagreement with
Union Steward Meyerhoffer and his inducing Lemons to
consent to keeping a full crew until the morning shift
arrived, was activity protected by the Act. Whether or not
"N Y Trap Rock Corp, Nytralete Div, 148 NLRB 374
"N L R B v Nu Car Carriers, 189 F 2d 756, 760 (C.A 3) enfg 88
NLRB 75 See also Aerodex, Inc, 149 NLRB 192, 198
"Top Notch Manufacturing Company, Inc, 145 NLRB 429 , 432, and
cases cited therein
it was the practice in Michigan to keep a full crew during
all parts of a hydrostatic test becomes immaterial.
The question remains, however, whether the means
utilized by Bird in going over the head of Meyerhoffer
and in persuading Lemons to keep on a full crew, was
such as to remove the otherwise protected activity from
the Act's cloak of protection. As heretofore found, during
the argument in Lemon's office, Bird threatened Lemons
that they would "blow down" the boiler and go home if a
full boilermaker crew was not kept on the jobsite between
the hours of 3:30 a.m. and 7 a.m. Also, as heretofore
found, the insurance inspectors were due to make their
inspection in the morning and draining the boiler would
have made this impossible, thus delaying the progress of
the project which had a very critical completion date. In
these circumstances, Bird's threat was not merely the
usual economic threat of strike, but rather a threat to
actually interfere with the Respondent's property and
undo what had already been accomplished in the erection
of the boiler. Moreover, Lemons knew that Bird had
sufficient influence among its employees to provide the
means of carrying out that threat. Under these
circumstances, the threat became tantamount to a threat
of industrial sabbotage and Lemons had no alternative but
to capitulate.
In view of the foregoing, I find and conclude that while
the activity of Bird was of the type that would ordinarily
be protected, the protection was lost when Bird made his
threat to blow down the boiler. Thus Bird engaged in
unprotected activity for which the Respondent had the
right to discharge him or refuse to rehire him at other
Respondent projects.23
Accordingly, I find and conclude that the Respondent
refused to hire Bird at the St. Clair project because Bird
performed at a less than satisfactory level at the Trenton
Channel job and because Bird engaged in unprotected
activity. I further find that Respondent thereby did not
violate Section 8(a)(1) and (3) of the Act and shall
recommend dismissal of the complaint in its entirety.
RECOMMENDED ORDER
It is hereby recommended that the complaint in this
proceeding be, and the same hereby is, dismissed in its
entirety.
"Cf N L R B v Fansteel Metallurgical Corp, 306 U S 340, N L R B
v IBE W (Jefferson Standard Broadcasting ), 346 U S 464