First Western Bldg. Services

National Labor Relations Board - Board Decisions

Nov 27, 1992

309 N.L.R.B. 591 (N.L.R.B. 1992)

591
309 NLRB No. 93
FIRST WESTERN BLDG. SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMfl, enfd. 188
F.2d 362 (fiMDBUfl*ERR17*fiMDNMfl3d Cir. 1951)fiMDBUfl*ERR17*fiMDNMfl. We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has alleged that the judge was biased against it
and, as a result, the Respondent was denied due process. We have
carefully examined the entire record, including the judge’s decision,
and are convinced that the judge’s conduct does not constitute legal
prejudice or even the appearance of partisanship. Although the judge
actively participated in the questioning, much of that participation
was necessary to clarify the record. A judge can interrupt or question
witnesses in order to clarify testimony. NLRB v. Overseas Motors,
818 F.2d 517, 520 (fiMDBUfl*ERR17*fiMDNMfl6th Cir. 1987)fiMDBUfl*ERR17*fiMDNMfl. Indeed, it is the duty of the judge
to inquire fully into the facts. A judge has the authority to call, ex-
amine, and cross-examine witnesses. See Sec. 102.35 of the Board’s
Rules. Because we find no evidence that the judge was biased or
prejudiced, we deny the Respondent’s request for a hearing de novo
before another administrative law judge.
The General Counsel filed a limited exception to the judge’s find-
ing in sec. I,b,1, par. 8, of his decision, that Respondent’s manager,
David St. Lawrence, testified that he told employees at staff meet-
ings that foremen had the authority ‘‘to terminate employees who
did not do their work correctly.’’ Our review of the record shows
that St. Lawrence did not testify that he made this statement. Rather,
St. Lawrence’s discredited testimony was limited to statements that
he made at employee meetings regarding a foreman’s ability to shut
the job down when wind conditions were unsafe and to send em-
ployees home who could not perform their jobs because of a drug
problem. The judge also found in sec. I,b,2, par. 6, of his decision
that when employees are requested to use their personal vehicles to
travel to and from jobs, they must be paid ‘‘35 cents per hour,’’
when in fact they must be paid 35 cents per mile. These inadvertent
errors do not affect the outcome of the case.
1 In its answer to the complaint, Respondent admits it is an em-
ployer engaged in commerce within the meaning of Sec. 2(fiMDBUfl*ERR17*fiMDNM
(fiMDBUfl*ERR17*fiMDNMfl7)fiMDBUfl*ERR17*fiMDNMfl of the Act and meets the
dictional standard, and also admits that the labor organization in-
volved in this case, Roofers, Waterproofers and Allied Workers
Union, Local 81, AFL–CIO (fiMDBUfl*ERR17*fiMDNMflUnion)fiMDBUfl*ERR17*fiM
the meaning of Sec. 2(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of th
First Western Building Services, Inc. and Taras
Busch. Case 32–CA–12167
November 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 24, 1992, Administrative Law Judge Jerrold
H. Shapiro issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a limited exception and letter in
support.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, First Western Building
Services, Inc., San Leandro, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Valerie Hardy-Mahoney, Esq., for the General Counsel.
Phil B. Hammond, Esq. (fiMDBUfl*ERR17*fiMDNMflHammond & Tellier)fiMD
spondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I conducted a hearing on February 20–
21, 1992, is based upon an unfair labor practice charge filed
by Taras Busch (fiMDBUfl*ERR17*fiMDNMflBusch)fiMDBUfl*ERR17*fiMDN
complaint issued on December 19, 1991, on behalf of the
General Counsel of the National Labor Relations Board
(fiMDBUfl*ERR17*fiMDNMflBoard)fiMDBUfl*ERR17*fiMDNMfl, by the Reg
alleging that First Western Building Services, Inc. (fiMDBUfl*ERR17*fiMDNM
ent)fiMDBUfl*ERR17*fiMDNMfl, has engaged in unfair labor practices within
ing of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(
tions Act (fiMDBUfl*ERR17*fiMDNMflAct)fiMDBUfl*ERR17*fiMDNMfl.
The complaint alleges, in substance, that in or about late
May 1991 Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMD
when its superintendent Daniel McReaken instructed Re-
spondent’s employee, Busch, to cease engaging in union ac-
tivity, and violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17
about July 11, 1991, when it discharged Busch because of
his union or other protected concerted activity. Respondent
filed an answer denying the commission of the alleged unfair
labor practices.1
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs submitted by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The setting
Respondent is a corporation with its office and place of
business in San Leandro, California. Its business is divided
into two divisions; a roofing and a waterproofing division.
The waterproofing division is involved in this case.
Respondent’s waterproofing division operates from an of-
fice and yard in San Leandro, California. During the time
material, it employed workers on as many as 20 and as few
as 5 jobs at one time. Its employees are classified as fore-
men, journeymen or apprentices.
Respondent’s supervisory hierarchy, for the waterproofing
division, is as follows. David St. Lawrence is the manager
of the division and is responsible for all of its operations.
Immediately below him in the chain of command is Harry
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conley, the general superintendent, and immediately below
Conley is Daniel McReaken, the superintendent of the water-
proofing division. McReaken assumed that position during
the first part of May 1991, having replaced Casey Walters,
who at that the asked to be relieved from the position of su-
perintendent. Walters remains in Respondent’s employ as
both a foreman and a journeyman. Also employed by Re-
spondent during part of the time material herein, was Mark
Barnes, who had the title of project manager. It was Barnes,
who, as project manager, was responsible for Respondent’s
proposal for the waterproofing job performed by Respondent
in San Francisco, California at 120 Montgomery Street.
Barnes, with Walters and then McReaken, supervised the
work on that job until Respondent terminated Barnes on July
12, 1991, at which time his responsibilities were assumed by
St. Lawrence.
Busch, the alleged discriminatee, is a journeyman
waterproofer. He was hired by Respondent on August 1,
1990, and from that date until sometime in October 1990
worked for Respondent as foreman on a job in Stockton,
California. After the completion of that job, Busch worked
for Respondent as a journeyman for a few days on other
jobs. Then, in October 1990, he was assigned as foreman to
Respondent’s job at 120 Montgomery Street in San Fran-
cisco, California, herein sometimes called the 120 Montgom-
ery Street job.
The building which Respondent waterproofed at 120
Montgomery Street is a commercial building, 25 stories high.
Under its contract with the owner, Respondent was obligated
to cut out all of the old caulking and grout joints on the sides
of the building and recaulk the sides of the building. During
the time material, Respondent assigned from two to four
workers to this job, including Busch. On 1 or 2 days there
were six workers on the job, but normally there would be
four, including Busch. Their hours were from 7 a.m. to 3:30
p.m., with a half-hour off for lunch.
The workers employed by Respondent on the 120 Mont-
gomery Street job did their work by standing on scaffolds,
referred to herein as rigs. The rigs, two of them, were ap-
proximately 40 feet wide and suspended from the top of the
building by cables.
The production technique and materials used on the job
were prescribed by the project manager, by the materials’
representatives and by the owner’s inspectors. Their orders
were given to Busch, who relayed them to the other workers.
The Union represents all of Respondent’s employees who
perform waterproofing-related work, including the employees
classified as foremen, as well as those classified as journey-
men and apprentices. During the time material all of the em-
ployees (fiMDBUfl*ERR17*fiMDNMflforemen, journeymen and apprentices)fiMDBUfl*ERR17*fiMDNMfl were covered
by a collective-bargaining agreement between the Union and
an Employer’s association. Respondent was bound to abide
by the terms of this agreement (fiMDBUfl*ERR17*fiMDNMflthe agreement)fiMDBUfl*ERR17*fiMDNMfl by virtue of
having authorized the association to represent it or by virtue
of having independently agreed to become a party to the
agreement. The agreement contains the following provisions
which are relevant to an understanding of this case.
Article XII of the agreement, entitled ‘‘Travel,’’ reads in
pertinent part:
Section 1. Employees shall report to the Individual
Employer’s shop at 8 a.m. Employees shall not be re-
quired by the Individual Employer to report directly to
the job-site. However, by mutual agreement between
the Employer and his employees, employees may report
directly to the job site. Employees who elect to report
directly to a job site within the free zone will not be
paid for their travel or driving time or their travel ex-
penses. . . .
Section 2. (fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNM
the actual time spent driving trucks from the Individual
Employer’s shop to the first job site . . . and for the
actual time spent driving trucks from the last job site
to the shop . . . at two-thirds (fiMDBUfl*ERR17*fiMDNMfl2/3)fiMDBU
straight time rates of wages only . . . (fiMDBUfl*ERR17*fiMDNMfld)
ployee may drive a truck with preference being given
to foremen and journeymen who have a valid California
driver’s license and who are acceptable to the Employ-
er’s Insurance Company. . . .
Section 3. Employees shall be reimbursed for their
costs and expenses of travel as follows: (fiMDBUfl*ERR17*fiMDNMfla)
free zone of fifteen (fiMDBUfl*ERR17*fiMDNMfl15)fiMDBUfl*ERR17*fi
ual Employer’s shop. (fiMDBUfl*ERR17*fiMDNMfli)fiMDBUfl*ERR17*fi
pensated for the time spent traveling within the free
zone radius from the Individual Employer’s shop to the
initial job site for the day . . . and for the time spent
traveling from the last job site each day to the
shop. . . . (fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl
the Individual Employer shall reimburse the employee
$34 per day. (fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNM
option, instead of reimbursing the employee for travel
expenses as provided in subparagraph (fiMDBUfl*ERR17*fiMDNMflb)fiM
dividual Employer may compensate the employee for
time spent in traveling beyond the free zone radius bor-
der to the initial job site for the day . . . and from the
last job site . . . to the Individual Employer’s free zone
radius border at two-thirds (fiMDBUfl*ERR17*fiMDNMfl2/3)fiMDBUfl*E
plicable straight time rate of wages only . . . . Such
travel expense beyond the free zone radius is compen-
sable up to a maximum of thirty-four dollars (fiMDBUfl*ERR17*fiMDNM
day. . . . (fiMDBUfl*ERR17*fiMDNMflf)fiMDBUfl*ERR17*fiMDNMfl E
age from the Individual Employer’s shop when trans-
portation is not furnished by the Employer and employ-
ees are requested to use their own cars as provided in
Section 6 of this article.
. . . .
Section 6. Use of Employee’s Car. When transpor-
tation is not furnished by the Individual Employer and
employees are requested to use their own cars when
traveling from shop to job, or job to job, or job to shop,
they shall receive 35 cents per mile.
Articl XVII titled ‘‘General Rules,’’ at section 14, pro-
vides:
[e]mployees shall not be required as a condition of em-
ployment to furnish the use of an automobile or other
conveyance to transport tools, equipment or materials
from shop to job, from job to job, or from job to shop,
facilities for such transportation to be provided by the
Individual Employer. This provision is not to restrict
the use of an automobile for other conveyance to trans-
port its owner and personal tools from home to shop or
job at starting time, or from shop or job to home at
quitting time.
593FIRST WESTERN BLDG. SERVICES
The plain language of article XII, section 1, of the agree-
ment, as set forth above, provides that Respondent’s employ-
ees are to report each day for work at Respondent’s San
Leandro facility and that Respondent may not require them
to report directly to a jobsite if they chose not to agree to
do so. Also, the plain language of section 2 of article XII,
provides that an employee who drives a vehicle from Re-
spondent’s San Leandro facility to his jobsite, at the start of
the workday, and back to the shop from the jobsite, at the
end of the workday, must be compensated for the actual time
spent driving the vehicle during those periods. The record re-
veals that Respondent and the Union have interpreted this
provision as meaning that the compensation of the vehicle’s
driver is based upon his straight time hourly rate of pay for
the period of time it takes him to drive the vehicle to and
from the jobsite, herein referred to as ‘‘drive time.’’
It is Respondent’s policy to have its job foreman drive the
other employees to and from Respondent’s San Leandro fa-
cility to the various jobs. The foremen, as required by the
collective-bargaining agreement, are given ‘‘drive time’’ pay
for doing this. Respondent’s general superintendent, Conley,
testified it is ‘‘standard procedure’’ for Respondent to require
the employees employed on its several jobs to report each
morning to Respondent’s San Leandro facility, so that the
foremen could pick up needed equipment and turn in their
timesheets and talk to management about what was going on
at the jobs, and, so management could make sure all of the
employees reported for work on time. Conley also testified
that after they report to the San Leandro facility, the employ-
ees are then transported by their foreman in a company van
to the job and at the end of the workday the foreman drives
them back to Respondent’s facility in the van, for which
driving time the foreman is paid ‘‘drive time’’ pay.
Regarding the so-called 15-mile ‘‘free zone,’’ referred to
in article XII of the agreement, the Union and Respondent
concluded that the 120 Montgomery Street job was within
the free zone, inasmuch as the free zone, being a radius, is
measured by air miles, not by actual driving distance, and
when this is done on a map it is clear that the 120 Montgom-
ery Street job was within the free zone. It is also undisputed,
based upon Busch’s undenied testimony, that the actual driv-
ing mileage from Respondent’s San Leandro facility to the
120 Montgomery Street job exceeds 15 miles.
2. The events leading up to and surrounding
Busch’s discharge
Busch began work for Respondent on August 1, 1990. He
was hired as a ‘‘journeymen foreman.’’ He was told by Gen-
eral Superintendent Conley, when he was hired, that Re-
spondent provided company vans for its foremen to drive
from the Company’s San Leandro facility to the job and
from the job back to the Company’s facility, and that Re-
spondent paid its foremen 1 hour’s ‘‘drive time’’ for driving
the van to and from the job, which equaled $24.30, a fore-
man’s hourly rate of pay.
Busch, who, started work for Respondent on a job in
Stockton, California, for the first 2 days on the job was as-
signed a company van which he drove to and from the job.
On the third day, when he arrived in the morning at the com-
pany yard, he was informed by Superintendents Walters and
Conley that Respondent was short of vans and Busch’s van
was needed on another job. As a result, Busch used his own
motor vehicle to transport himself to and from the Stockton
job on that day and for the next several days.
The following week Busch asked Conley to assign him a
company van to use to get to and from the Stockton job.
Conley told him the van which he had been using was still
being used on another job, but it would be returned to Busch
in a couple of days. Subsequently, approximately 1 week
later, Busch was given the use of a van for 1 or 2 days, and
then it was taken away from him again. Thereafter, for the
remainder of the Stockton job, Busch used his own motor
vehicle to transport himself to and from the job.
In September 1990, when the manager of the waterproof-
ing division, St. Lawrence, visited the Stockton job and in-
troduced himself to Busch, Busch complained he had not
been given a van for transportation. St. Lawrence stated he
knew nothing about the matter, but would discuss it with Su-
perintendents Walters and Conley and get back to Busch. It
is undisputed at this time all of the other foremen employed
by Respondent had been assigned vans to drive to and from
their jobs.
In October 1990, when Busch was assigned as foreman to
the 120 Montgomery Street job and was not provided with
a van, he drove his own automobile to and from the job. He
parked it in a public parking lot and was reimbursed by Re-
spondent for his parking fees for the first several months.
However, in approximately March 1991 Respondent advised
him it would no longer reimburse him for his parking fees,
so Busch at that time began to take public transportation, the
Bay Area Rapid Transit subway (fiMDBUfl*ERR17*fiMDNMflBART)fiMDBU
in Oakland, California, to downtown San Francisco, where
the job was located. He normally used BART to get to and
from work, from approximately March 1991 until his termi-
nation in July 1991.
During the period he worked on the 120 Montgomery
Street job Busch received ‘‘drive time’’ pay between one and
two or three times weekly, under the following cir-
cumstances. Whenever he used his own motor vehicle to
drive to the Company’s yard on business, i.e., to pick up the
employees’ paychecks or to pick up materials, he requested,
on the daily timesheets he submitted to the Company’s of-
fice, pay for his ‘‘drive time’’ for those occasions, and his
requests were granted. In addition, every so often, Super-
intendent Walters authorized Busch to submit requests on the
timesheets for an extra day or two of ‘‘drive time’’ pay.
These requests were also granted.
In October 1990 Busch spoke to Union Business Manager
Ronald Boyer about the 120 Montgomery Street job. He told
Boyer things were fine on the job, except he had not been
provided with a van for transportation and was not being re-
imbursed for travel or being paid per diem. Boyer told him
he was entitled to a van and to travel reimbursement, but not
per diem. Boyer warned Busch that if Busch grieved to the
Union about the matter and the Union raised the issue with
Respondent, on Busch’s behalf, Busch would most likely be
fired. Boyer suggested Busch resolve the matter himself by
speaking to Respondent’s management. Regarding Busch’s
claim for per diem, after checking the map on the wall of
the Union’s office, Boyer told Busch that the 120 Montgom-
ery Street job was within the 15-mile free zone and not, as
Busch contended, outside of the free zone, and told Busch
that in view of this Busch was not entitled to the $34 a day
per diem set by the collective-bargaining agreement.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The above-described October conversation between Busch and
Boyer and the above-described December conversation between
Busch, Boyer, and Ziegler, are based on the testimony of Busch,
whose testimonial demeanor was good. Boyer, a witness for Re-
spondent, was asked if he ever told Busch that he would be fired
if he filed a grievance, or the Union grieved on his behalf? Boyer
testified, ‘‘I may have said something similar to that . . . what I
think I would have said . . . is that life could be very uncomfortable
. . . in this particular shop if you make a big issue of something
that isn’t valid . . . and not knowing whether or not there was any
validity to his grievance at that time, I may have said something like
that.’’ Ziegler, a witness for Respondent, admitted that prior to
Busch’s termination that Busch spoke to him about travel time, but
testified he was unable to recall what was said.
3 As found supra, McReaken replaced Walters as waterproofing su-
perintendent in early May 1991.
4 The above descriptions of Busch’s conversations with St. Law-
rence about Respondent’s failure to provide him with a van and/or
travel pay, which occurred in September 1990, the end of 1990, Jan-
uary 1991, March 1991, and late May or early June 1991, are based
upon Busch’s testimony. Not only was his testimonial demeanor
good when he testified, but St. Lawrence, who testified for Respond-
ent, did not deny or otherwise contradict Busch’s testimony about
these conversations. It is also significant that McReaken, a witness
for Respondent, was not questioned about the late May or early June
1991 conversation and did not deny it occurred. Nor were Walters
or Conley, who also testified for Respondent, questioned about the
above-described January 1991 and March 1991 conversations and
did not deny they occurred.
5 As noted supra, Casey Walters voluntarily resigned his position
as superintendent early in May 1991 and was replaced by
McReaken, but remained in Respondent’s employ working some-
times as a foreman and at other times, as in this case, as a journey-
man.
Early in December 1990, when Busch went to the Union’s
office to pick up his check for vacation pay, he spoke to
Boyer and to Douglas Ziegler, the Union’s financial sec-
retary-treasurer. He told them he had still not been provided
with a van. Boyer and Ziegler told him they could talk to
the Respondent about the issue, but warned if they did,
Busch would most likely be fired. They advised him to try
and work things out with Respondent’s management.2
Late in 1990, Busch went to St. Lawrence’s office and
complained he had not been provided with a company van
or ‘‘travel pay.’’ St. Lawrence responded by asking, ‘‘why
are you making a big deal out of this little issue.’’ Busch
answered that St. Lawrence might consider it a little issue,
but it was a big one for Busch because he was the only fore-
man that Respondent was not providing with transportation
to the job. St. Lawrence stated he would talk with Busch’s
superiors and get back to Busch.
St. Lawrence did not get back to Busch as promised, so,
in January 1991, during a meeting attended by Respondent’s
waterproofing division employees and management at the
Company’s San Leandro facility, Busch again complained to
St. Lawrence about Respondent’s failure to provide him with
a van. Present at this meeting, besides Respondent’s foremen,
journeymen and apprentices, were St. Lawrence and Super-
intendents Conley and Walters. During the meeting Busch
complained to St. Lawrence that Respondent still had not
provided him with a van or transportation to the 120 Mont-
gomery Street job and stated he would like a van or reim-
bursement for his travel, which he explained to St. Lawrence
meant $34 a day per diem or a van and 1 hour of ‘‘drive
time’’ pay. St. Lawrence stated he would talk it over with
Conley and Walters.
Subsequently, in March 1991, during another meeting at-
tended by Respondent’s employees and management at St.
Lawrence’s office in San Leandro, Busch again complained
to St. Lawrence about Respondent’s failure to provide him
with a van. Present at this meeting, besides Respondent’s
foremen, journeymen, and apprentices, were St. Lawrence,
Conley and Walters. During the meeting Busch told St. Law-
rence he was still working at the 120 Montgomery Street job
and had been employed on that job for a long time and felt
he deserved ‘‘travel pay’’ or a van. St. Lawrence answered
by saying something to Conley, who told Busch, ‘‘this is a
give and go situation. You have to give a little bit to the
company.’’ St. Lawrence then pointed out to Busch that Re-
spondent compensated a foreman at the foreman’s premium
hourly rate of pay even when a foreman was not ‘‘running
a job,’’ and stated to Busch, ‘‘so since we’re giving a little
bit to you guys so you guys should give a little bit to us.’’
Busch indicated he did not agree. St. Lawrence stated he
would talk it over and get back to Busch.
St. Lawrence never got back to Busch, so, late in May
1991 or the first part of June 1991, while in St. Lawrence’s
office, in the presence of Superintendent McReaken,3 while
talking about the progress of the 120 Montgomery Street job,
Busch against brought up the subject of Respondent’s failure
to provide him with transportation to and from the job or
travel reimbursement. He told St. Lawrence that his previous
demands on this subject were no longer negotiable and stated
he felt he should be receiving everything he was entitled to
according to the ‘‘Union contract.’’ St. Lawrence replied he
would talk to Conley about the matter and get back to
Busch.4
The next day McReaken went to the 120 Montgomery
Street job and asked Busch, who was on a scaffold working
with Casey Walters, to come down because he wanted to
speak to him.5 McReaken told Busch he had spoken to Gen-
eral Superintendent Conley about Busch’s demand for a
company van or travel pay and Conley had told McReaken
to inform Busch that Busch was not going to receive a van
and for Busch ‘‘to leave the issue alone.’’ McReaken also
told Busch that Conley had said Busch had two choices; he
could step down as foreman and be assigned to work on an-
other job under another foreman, or, if he remained at the
120 Montgomery Street job, ‘‘they would be watching [him]
and if [he] was late three times that they would give [him]
three written warnings and then fire [him].’’ Busch answered
by stating he understood McReaken had to do his job, but
he intended to remain at 120 Montgomery Street and con-
tinue to work the best way he could.
During the same time period, McReaken remarked to
Project Manager Barnes that Busch, ‘‘is still whining about
. . . travel pay,’’ and told Barnes that while former Super-
intendent Walters could not handle Busch’s complaints,
McReaken knew how ‘‘to fix him,’’ and explained to Barnes
that if Busch was late three more times McReaken would fire
him and that would be ‘‘the end of it [referring to Busch’s
demand for travel pay].’’
The aforesaid descriptions of McReaken’s conversations
with Busch and Barnes are based upon the testimony of
Busch and Barnes. McReaken denied making the remarks at-
595FIRST WESTERN BLDG. SERVICES
6 The above description of Busch’s conversation with Walters is
based on Busch’s undenied testimony. Walters, a witness for Re-
spondent, did not deny it occurred.
7 I note that Busch also testified that at the end of the workday,
the day of his jobsite conversation with McReaken, he telephoned
Union Business Manager Boyer and told him what had been said to
him by McReaken, specifically about the two choices that had been
given to him, and was advised by Boyer to keep his paystubs and
to begin keeping daily reports of what occurred on the job, so when
he was fired by Respondent he would be in a position to file a griev-
ance. Boyer, a witness for Respondent, did not deny Busch’s testi-
mony.
8 Conley testified in detail about what was stated at the meeting,
whereas Walters was only able to give a sketchy account.
tributed to him by Barnes and gave a completely different
account of his jobsite conversation with Busch. He testified
he told Busch he had spoken to Conley about Busch’s com-
plaints about drive time pay and Conley had stated Busch
was to use a company van, that there was a van at the Com-
pany’s San Leandro yard for Busch to use to drive to and
from the jobsite, and that if the job was too much for Busch,
McReaken would assign him to another job as a journeyman
and let someone else run the 120 Montgomery Street job,
and that Busch replied by stating his pickup truck was not
working, so he was unable to come to the San Leandro yard
for the company van and would do so later on down the
road.
I reject McReaken’s testimony and credit the above testi-
mony of Busch and Barnes. I considered that Busch is an in-
terested party and that Barnes, having been fired by Re-
spondent, is presumably biased against it. Nonetheless, I
credited their testimony and rejected McReaken’s because
their testimonial demeanor—their tone of voice and the way
they looked and acted while testifying—was good, whereas
McReaken’s testimonial demeanor was poor. In addition,
Busch’s account of what was said to him by McReaken is
corroborated by the fact that immediately after the conversa-
tion, when Busch returned to work with former Superintend-
ent Casey Walters, Busch informed Walters about the mes-
sage from Conley that McReaken had relayed to him. Busch
told Walters McReaken had stated Conley had given Busch
the choice of leaving the 120 Montgomery Street job or re-
maining there and being issued written warnings the next
three times he was late for work and then being fired. Wal-
ters informed Busch that Conley disliked him and that
Conley’s reason for disliking him was because he was black
and because he was a ‘‘whiner’’ who was persistent about
his ‘‘union rights.’’6 In my opinion the fact that immediately
after his conversation with McReaken, Busch informed a
third party—former Superintendent Walters—about the mes-
sage from Conley that McReaken had relayed to him, bol-
sters the credibility of Busch’s account of his conversation
with McReaken.7
As I have found supra, from September 1990 through late
May 1991 or early June 1991, on five different occasions
Busch complained to Respondent’s manager, St. Lawrence,
that he was not being provided with a company van for
transportation from Respondent’s facility to his job and back,
and St. Lawrence indicated to him, among other things, he
would speak about the matter to Busch’s immediate superiors
and get back to Busch. As I have also found supra, St. Law-
rence never got back to Busch, but late in May or early in
June, the day after making his last complaint to St. Lawrence
on this subject, Superintendent McReaken relayed to Busch
a message from General Superintendent Conley that Busch
was not going to receive a company van and should leave
the issue alone.
In making the above findings, I considered Conley’s fol-
lowing testimony: Superintendent Walters told him Busch
was requesting to be paid 35 cents a mile for the miles he
traveled between his home and the job; Conley told Walters
that Respondent could not agree to that request; Busch was
not satisfied with that answer and ‘‘so it went on, and on and
on’’; one day when Walters informed Conley that Busch was
still asking for travel time of 35 cents per mile, Conley again
instructed Walters to talk to Busch and tell him Respondent
would not agree to this demand; Walters subsequently told
Conley he could not get anywhere with Busch; and, because
of this, Conley agreed to meet with Busch to discuss the
matter. I also considered the testimony of Conley and Wal-
ters that on February 26, 1991, Walters and Conley met with
Busch in Respondent’s office and that Conley told Busch
there was a company van available for him to use, but Busch
stated he preferred to take BART to work rather than come
to the Respondent’s facility for a company van. I reject
Conley’s and Walters’ aforesaid testimony and for the rea-
sons below credit Busch’s testimony that Conley never told
him there was a van available for him to use.
The testimonial demeanor of Conley and Walters—their
tone of voice and the way they looked and acted while testi-
fying—was poor, whereas the testimonial demeanor of Busch
was good.
Conley’s and Walters’ testimony conflicts on a matter of
substance. As described supra, Conley testified that on sev-
eral occasions Walters told him Busch was demanding that
Respondent pay him 35 cents a mile for traveling to and
from the job from his home. However, Walters testified this
was not what Busch was demanding. According to Walters’
testimony, Busch’s demand, as expressed to Walters, was
that ‘‘he felt he was entitled to drive time,’’ that ‘‘he wanted
to be paid an extra hour a day, in addition to his time on
the job. He wanted another hour per day as compensation for
transportation to and from the job,’’ which Walters testified
would amount to $24.30 a day (fiMDBUfl*ERR17*fiMDNMflTr. 262–263)fiMD
Also significant in rejecting Walters’ and Conley’s account
of what occurred at the alleged February 26, 1991 meeting
is the fact that Conley’s description of the meeting is incred-
ible.8 Conley’s account of what transpired is as follows:
Busch stated Respondent was obligated to pay him 35 cents
per mile for the miles he traveled between his house and the
120 Montgomery Street job; Conley indicated his disagree-
ment; Conley told Busch that before going to their respective
jobs all of Respondent’s foremen come to the Company’s
San Leandro facility for these purposes—to turn in their
timesheets, to talk with management about what is happening
on their jobs, to pick up equipment, and to take one of the
Company’s vans to drive to the jobsite; Conley stated this
was the way he wanted Busch to operate; Conley also ex-
plained to Busch that the only means Respondent had of
knowing whether a foreman and his crew were showing up
for work or not was to have them come to Respondent’s fa-
cility each morning before going to the job; Conley told
Busch ‘‘everyone comes in here. How can we control your
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I considered St. Lawrence’s testimony that in early or mid-June
1991, ‘‘several weeks’’ prior to July 3, he directed McReaken to in-
struct Busch to change certain production techniques being used on
the 120 Montgomery Street job. McReaken did not testify, however,
that when he instructed Busch on July 1 to change certain produc-
tion techniques, he was following St. Lawrence’s instruction, nor did
he corroborate St. Lawrence’s testimony. Nor has Respondent ex-
plained why, if, in early or mid-June, ‘‘several weeks’’ prior to July
1, St. Lawrence directed McReaken to instruct Busch to change cer-
tain production techniques, McReaken did not get around to doing
this until July 1.
crew if you’re showing up over there and they don’t know
what the hell’s going on’’ (fiMDBUfl*ERR17*fiMDNMflTr. 247–248)fiMDBUfl*ERR17*fiMDNMfl; Busch answered it
was easier for him to take BART to the job; Conley replied
that while it might be more convenient for Busch and the
other workers on his crew to take BART to the job, it was
not easier for the Respondent because he stated if the em-
ployees went directly to the job without coming to Respond-
ent’s facility, ‘‘we have no control over what’s going on . . .
we would not know if anybody showed up or not’’; Conley
instructed Busch to come to Respondent’s facility each
morning to get a van; Busch asked, ‘‘what if I ride BART’’;
Conley answered, ‘‘that’s your own choice then. But I’m tell-
ing you to come get the truck.’’
It is undisputed that following the alleged February 26,
1991 meeting Busch continued to take BART to work rather
than obey Conley’s directive to ‘‘come get the truck.’’ This,
despite the fact Conley wanted Busch to come to Respond-
ent’s facility each morning because, as Conley testified, it
was ‘‘standard procedure’’ for all of Respondent’s foremen
to come to the Respondent’s facility each morning for sev-
eral business reasons and to drive one of the Company’s
vans to the jobsite (fiMDBUfl*ERR17*fiMDNMflTr. 243, L. 25, to 244, L. 15)fiMDBUfl*ERR17*fiMDNMfl. It is also
undisputed that Conley knew Busch continued to take BART
to and from work and was refusing to obey Conley’s instruc-
tion that he conform to company policy by reporting to the
Company’s facility each morning and drive a company van
to the job. Yet, Conley did not discipline Busch for this act
of insubordination or even speak to him again about the mat-
ter.
In other words, Respondent would have me believe that on
February 26, 1991, Conley expressly ordered Busch to cease
using BART to get to his job, but instead to report first each
morning to Respondent’s San Leandro facility before going
to the job, and he would be given a van to drive from the
facility to the job. Respondent would also have me believe
that Busch disobeyed this expressed order, yet was not dis-
ciplined nor even spoken to about his act of insubordination.
This despite the fact that it was Respondent’s standard pol-
icy, followed by all but Busch, to have foremen report first
to the San Leandro facility before reporting to their jobs and
to drive to their jobs in the Company’s vans. Respondent of-
fered no reason why Busch was not disciplined nor even spo-
ken to for engaging in this blatant act of insubordination. I
am of the opinion that the reason for this is that Busch was
not insubordinate; that on February 26 he was not told there
was a company van available for him to use as transportation
to and from the job and was not directed to report each
morning to Respondent’s facility rather than to go directly to
his job via BART. I am persuaded that Conley’s and Wal-
ters’ description of what allegedly occurred on February 26,
1990, when viewed in context, demonstrates its implausibil-
ity and indicates it was fabricated to suit Respondent’s case.
The implausibility of their account of this meeting is further
demonstrated by the undisputed fact that, as I have found
supra, even after the February 26 meeting Superintendent
Walters continued to pay ‘‘drive time’’ computed at $24.30
an hour to Busch on those occasions Busch used his personal
motor vehicle to drive to the Company’s facility on business
and even authorized an extra day or two of ‘‘drive time’’ pay
for Busch on days he took BART to and from work. I find
it difficult to believe that Walters would have done this if,
as he testified, he was present when Conley told Busch that
it was company policy that he come to the shop each morn-
ing and pick up a company van and his crew, and Busch re-
fused to do this, but instead continued to go directly to the
job via BART.
McReaken testified that on July 1, 1991, he arrived at the
120 Montgomery Street job prior to the 7 a.m. starting time
and waited outside to see what time the crew got to work.
He also testified that when Busch arrived at the job 10 min-
utes late, McReaken told him he was responsible for getting
the job started on time and because he was running the job
should set a good example for the rest of the employees.
McReaken also testified that on July 1 he instructed Busch
to change certain production techniques being currently used
on the job.
Busch testified McReaken did not speak to him about his
tardiness on July 1, or about a change in production tech-
nique. Busch testified that the first time anyone from the
Company, including McReaken, spoke to him about those
subjects was on July 3, as described infra.
I reject McReaken’s testimony that on July 1, as described
above, he criticized Busch for coming to work late that day
and told him to change certain production techniques. I reject
his testimony because his testimonial demeanor was poor,
whereas Busch’s was good. I also note that in a July 10,
1991 memorandum submitted by McReaken to St. Lawrence
dealing with McReaken’s conversations with Busch on July
1, 3, and 10, there is no mention that on July 1 McReaken
instructed Busch to change the production technique being
used on the job. Instead the memorandum indicates it was
not until July 3 that Respondent for the first time instructed
Busch to change the production technique being used on the
job.9
On July 3, 1991, Superintendent McReaken waited outside
the 120 Montgomery Street job prior to the employees’ 7
a.m. starting time to observe when Busch came to work.
Busch arrived at either 7:03 a.m. (fiMDBUfl*ERR17*fiMDNMflaccording to
7:10 a.m. (fiMDBUfl*ERR17*fiMDNMflaccording to McReaken)fiMDBUfl*ER
following occurred when Busch and McReaken met in front
of the jobsite: McReaken criticized Busch for being late for
work and they argued about that; McReaken stated he want-
ed Busch to be on the job at 6:45 a.m.; when Busch asked
if Respondent intended to pay him for coming to work at
6:45 a.m., McReaken answered ‘‘no’’; Busch stated if Re-
spondent did not intend to pay him for coming to work prior
to 7 a.m., which was the employees’ starting time, he would
be there at 7 a.m.; McReaken accused Busch of not caring
about his job; Busch denied this accusation; and they then
entered the building and went up to the third floor, where
the work rig was tied.
On the third floor waiting for them to arrive were: Man-
ager St. Lawrence; Project Manager Doug Sinai, employed
597FIRST WESTERN BLDG. SERVICES
10 Busch testified he received this telephone call on July 10 and
that his termination interview with St. Lawrence occurred that same
afternoon, when he also was given his paycheck, and that later the
same afternoon he went to the Union’s office where he filed a griev-
ance against Respondent. Busch was mistaken about the date of
these events because the paycheck which was given to him at the
conclusion of his termination interview is dated July 12, which is
also the same date which appears on the grievance he filed with the
Union. Accordingly, I find that Busch’s termination interview oc-
curred on Friday, July 12.
by Respondent; and Joe French, a materials representative
employed by one of Respondent’s suppliers.
It is undisputed that after McReaken and Busch got to the
third floor that two topics were discussed: Busch’s tardiness;
and the manner in which the work on the job was being per-
formed. Busch, St. Lawrence and McReaken testified about
what occurred during the July 3 meeting. The pertinent parts
of their testimony concerning that meeting are summarized
immediately below. I have not resolved any of the conflicts
in their testimony because, in my opinion, those conflicts do
not affect the outcome of this proceeding.
Busch’s testimony about what was said during the July 3
meeting concerning his tardiness is summarized as follows:
McReaken told St. Lawrence that Busch had been late for
work; St. Lawrence stated he wanted Busch to be there on
time because he held up the job when he was late for work;
McReaken stated he wanted Busch to come to work at 6:45
a.m.; Busch replied he would not do that unless Respondent
paid him for his time on the job prior to 7 a.m.; Busch sug-
gested that since Respondent did not want to pay him for
coming to work before 7 a.m., that it should pay the appren-
tices to come to work early to set up the job; McReaken
asked the apprentices, who were present, if they were willing
to come to work early to set up the job; the apprentices
asked if they would be paid for doing this; McReaken an-
swered ‘‘no’’; and, the apprentices stated they would not
come to work before 7 a.m.
St. Lawrence’s testimony about what was said during the
July 3 meeting concerning Busch’s tardiness is summarized
as follows: St. Lawrence told Busch he had been told about
Busch’s chronic tardiness by former Superintendent Walters
and by Superintendent McReaken, and stated that now he
had personally observed Busch come to work 15 minutes
late; St. Lawrence told Busch it was very important for
Busch to start work at 7 a.m. as an example to the rest of
the employees on the job and stated he expected Busch to
arrive on the job prior to 7 a.m. in order to do all of the
preliminary work, such as untying the rig, etc. . . . so that
he would be ready to start work right at 7 a.m.; Busch’s re-
sponse was that if St. Lawrence wanted him to be on the job
before 7 a.m., Respondent would have to pay him for the ad-
ditional time.
McReaken’s testimony about this part of the meeting was
that St. Lawrence questioned Busch about being tardy and
told Busch that Busch was obligated to run the job and get
there on time and set a good example for the apprentices.
Busch testified that after inspecting the work which had
been done by Respondent’s employees on the job, that St.
Lawrence and Sinai questioned Busch about the way in
which the work was being done and, in certain respects, in-
structed him to use different materials and a different work
or production technique or procedure. As I have previously
found, Busch credibly testified that prior to this meeting he
had not been instructed by anyone to change the materials
he was using or to change the work or production techniques
that he had been previously instructed to use on the job.
St. Lawrence testified that on July 3 when he inspected the
work being done at the 120 Montgomery Street job he dis-
covered Busch had not changed certain production tech-
niques or procedures so as to conform to the instructions that
St. Lawrence had issued to McReaken several weeks earlier.
St. Lawrence testified he asked Busch whether McReaken
had communicated those instructions to him and explained to
Busch that the new technique or procedure was more eco-
nomical or efficient. St. Lawrence also testified he was un-
able to remember whether or not Busch acknowledged that
McReaken had instructed him about the new method of pro-
duction.
McReaken testified that during the July 3 meeting, Re-
spondent’s representatives spoke to Busch about the ‘‘work
techniques’’ being used on the job, namely, that they told
him he had been asked to change the work technique, yet the
work was all being done the same way as before. However,
just as St. Lawrence testified he was unable to remember
whether Busch acknowledged that McReaken had instructed
him about the new work technique, McReaken was likewise
unable to remember what reason Busch gave in response to
this accusation. As I have found supra, prior to the July 3
meeting Busch had not been informed by anyone to change
the current production or work technique being used on the
job.
Busch, after the July 3 meeting, worked at the 120 Mont-
gomery Street job on the following days: July 3, 5, 6, and
8. Based upon his description of the work that was per-
formed on those days—testimony that was not controverted
by any evidence presented by Respondent—I find the work
performed on the job between July 3 and 10 was consistent
with the July 3 instructions Busch received from Respond-
ent’s representatives.
On July 10 Superintendent McReaken arrived at the 120
Montgomery Street job at 6:45 a.m. None of Respondent’s
employees had arrived at the job, so he waited outside of the
building to determine if Busch obeyed McReaken’s July 3
instruction about being at work by 7 a.m. Busch did not ar-
rive at the jobsite until after 7 a.m.; according to Busch at
approximately 7:03 a.m. and according to McReaken at ap-
proximately 7:10 a.m. It is undisputed that when they met in
front of the building, McReaken reminded Busch that
McReaken had told him to be at work on time, stated he
thought Busch had lost interest in his work, and told him he
was suspended from work; according to Busch for 2 weeks
and according to McReaken for a couple of days.
On Friday, July 12, in the morning, St. Lawrence tele-
phoned Busch and told him that after reviewing the situation
he had decided to discharge Busch and asked Busch to come
to the office that afternoon to get his paycheck.10
On July 12, in the afternoon, Busch met with St. Law-
rence, in St. Lawrence’s office, where he was given his pay-
check and had a brief conversation with St. Lawrence.
Busch’s testimony about his July 12 termination interview,
insofar as it concerns the reason for his termination, may be
briefly summarized as follows: St. Lawrence stated he
thought Busch was a ‘‘great worker,’’ but that ever since
Busch’s conversation with St. Lawrence in May about the
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 McReaken previously testified that during May and June the
workers on Busch’s crew told McReaken that Busch was coming to
work late and because of this holding up the progress of the job.
‘‘issue of travel,’’ that St. Lawrence thought Busch had lost
confidence in the Company and in St. Lawrence; St. Law-
rence stated he thought the situation about the ‘‘travel issue’’
had been resolved; Busch responded by stating that the issue
had not been resolved, that he had not been given a van, and
that McReaken had given him the choice of either being re-
assigned from the 120 Montgomery Street job or being
issued written warnings and fired for being tardy.
St. Lawrence’s testimony about the July 12 termination
interview, insofar as it concerns the reason for Busch’s ter-
mination, may be briefly summarized as follows: St. Law-
rence asked Busch what had happened; Busch answered he
was a couple of minutes late and McReaken had laid him
off; St. Lawrence stated Busch was a ‘‘very valuable caulk-
er,’’ that the 120 Montgomery Street job was Respondent’s
most important project, and St. Lawrence was disappointed
things had not worked out; St. Lawrence then discussed with
Busch the part of their July 3 conversation concerning the
importance of Busch starting work on time and, in this re-
spect, St. Lawrence testified he told Busch during the July
12 termination interview, ‘‘I felt with his attitude about the
comment that he made [on July 3] that if you want me here
earlier you pay me, didn’t address the issue of the common
sense of getting ready for your job, start[ing] on the right
time [and] I told him that I felt that because of this, and not
following my direction on the caulking, that I preferred not
to lay him off, that I felt he should be terminated.’’
As described supra, except for their agreement that St.
Lawrence expressed high regard for Busch’s work, Busch
and St. Lawrence gave sharply conflicting testimony about
everything else of significance that was said during Busch’s
termination interview. I credit Busch’s testimony because his
testimonial demeanor, which was good, was better than St.
Lawrence’s, which was poor.
On July 12, immediately after his termination interview,
Busch went to the Union’s office where he filed a grievance
against Respondent alleging Respondent had violated section
6 of article XII of the governing collective-bargaining agree-
ment. As noted supra, this provision provides, ‘‘[w]hen trans-
portation is not furnished by the Individual Employer and
employees are requested to use their own cars when traveling
from shop to job, or job to shop, they shall receive thirty-
five cents per mile.’’ In the section of the grievance form en-
titled, ‘‘what are you asking for?’’, Busch stated he was ask-
ing for ‘‘[t]ravel pay—mileage for using own car no trans-
portation was provided from shop to job.’’
Busch’s chronic tardiness
Busch testified that during his approximately 9 months of
employment on the 120 Montgomery Street job he was late
for work on an average of approximately 1 day each week,
but it was not until July 3 that anyone from management
spoke to him about his tardiness. Walters and McReaken, the
superintendents over the job during that 9-month period, tes-
tified they spoke to Busch about his tardiness prior to July
3. I reject their testimony and credit Busch’s for the reasons
below.
Walters initially testified he spoke to Busch about being
tardy for work on ‘‘probably less then five’’ different occa-
sions. He subsequently testified that during the period he was
superintendent when Busch was employed on the 120 Mont-
gomery Street job, a period of approximately 7 months, he
had no recollection of the number of times he spoke to
Busch about his tardiness. Walters then volunteered, ‘‘I may
not even have spoken to him about being late on that job.’’
But then testified he recalled that once, on a Friday, when
Busch came to work late after having picked up the employ-
ees’ paychecks at the San Leandro facility, Walters criticized
him for having been late getting to the jobsite. I reject Wal-
ters’ aforesaid testimony because when he testified about this
subject his testimonial demeanor was poor, whereas Busch’s
was good. Moreover, Walters conceded he may in fact never
have spoken to Busch about his tardiness while on the 120
Montgomery Street job.
I previously rejected McReaken’s testimony that on July
1 he spoke to Busch about his late arrival for work on July
1. Likewise, I reject McReaken’s further testimony that he
spoke to Busch about his tardiness prior to July 1 and credit
Busch’s testimony to the contrary. Not only was Busch’s tes-
timonial demeanor, which was good, better than
McReaken’s, which was poor, but the lack of specificity in
McReaken’s testimony and the fact that he contradicted him-
self when he gave this testimony makes his testimony sus-
pect. McReaken initially testified that the first time he talked
to Busch about his tardiness was on July 1 (fiMDBUfl*ERR17*fiMDNMflTr. 2
9)fiMDBUfl*ERR17*fiMDNMfl. Then, when asked why he did not speak to B
his tardiness before July 1, when supposedly he had been in-
formed during May and June that Busch was holding up the
job by coming to work late,11 McReaken now testified, ‘‘I
don’t recall. I mean, I’m sure it was mentioned . . . that he
should start on time.’’ McReaken now testified he was posi-
tive of having spoken to Busch about his tardiness prior to
July 1. However, other than his conclusionary testimony,
McReaken offered no specifics as to when or where or under
what circumstances he spoke to Busch or what he said to
him or Busch’s response. In view of the conclusionary and
contradictory nature of McReaken’s testimony and his poor
testimonial demeanor, I reject his testimony and credit the
testimony of Busch, whose testimonial demeanor was good.
My rejection of Walters’ and McReaken’s above-described
testimony that they verbally warned Busch about coming to
work late was also prompted by the fact that when Respond-
ent’s superintendent believes that employees, including those
classified as foremen, are engaging in misconduct, including
being late for work, that the superintendent is required by
Respondent’s policy of progressive discipline to issue a se-
ries of written warnings to the employee. Not one written
warning was ever issued to Busch, and neither Walters nor
McReaken explained, why, if they were critical of Busch’s
tardiness, they failed to issue a written warning.
Respondent’s reasons for discharging Busch
David St. Lawrence, the manager of Respondent’s water-
proofing division, testified Busch was a talented field techni-
cian and an excellent worker, but that St. Lawrence decided
to discharge him for two reasons: his ‘‘chronic tardiness’’;
and ‘‘his inability to follow instructions,’’ namely Busch
failed to follow the July 3 instructions given to him by St.
Lawrence. St. Lawrence further testified that the ‘‘main rea-
son’’ he decided to discharge Busch was for his ‘‘chronic
599FIRST WESTERN BLDG. SERVICES
12 McReaken testified that on July 10 after speaking with St. Law-
rence over the telephone about Busch’s conduct, that he wrote a
memorandum to St. Lawrence about the events of July 1, 3, and 10
(fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 3)fiMDBUfl*ERR17*fiMDNMfl. He testified he personally gave this memorandum to
St. Lawrence on July 10. However, St. Lawrence testified McReaken
did not give him the memo, but placed it in the interoffice mail and
because of this St. Lawrence did not receive it until the next day.
St. Lawrence testified he decided to discharge Busch prior to reading
the memorandum.
13 The record reveals that these meetings were also attended by
Respondent’s waterproofing superintendent and general superintend-
ent.
tardiness’’ and if Busch had not been late for work on July
10 St. Lawrence probably would not have decided to dis-
charge him for his failure to follow the July 3 instructions,
but would have asked Busch to explain why he failed to fol-
low those instructions and talked to Busch about his failure
to follow the instructions.
St. Lawrence testified he learned Busch arrived for work
late on July 10 and had also failed to follow St. Lawrence’s
July 3 instructions, when Superintendent McReaken tele-
phoned him on July 10 and gave him this information.12
B. Discussion and Conclusions
1. Busch’s supervisory status
Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act, defines a supervisor as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Although this language lists the supervisory powers in the
disjunctive—so that the exercise of any one of them is suffi-
cient to make an individual a supervisor—it also contains the
conjunctive requirement that the power be exercised with
‘‘independent judgment,’’ rather than in a ‘‘routine’’ or
‘‘clerical’’ fashion. This requirement is an expression of
Congressional intent to withhold supervisory status from
‘‘straw bosses,’’ ‘‘leadmen,’’ as well as other low-level em-
ployees having modest supervisory authority. Highland
Superstores v. NLRB, 927 F.2d 918, 920–921 (fiMDBUfl*ERR17*fiMDNMfl6th Cir.
1991)fiMDBUfl*ERR17*fiMDNMfl. Also, an employee does not become a statutory super-
visor if he or she recommends personnel actions, but there
is no showing that participation in these personnel actions
amount to effective recommendations that the personnel ac-
tion occur. Ohio Masonic Home, 295 NLRB 390, 392
(fiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMfl; Beverly Enterprises v. NLRB, 661 F.2d 1095, 1100–
1101 (fiMDBUfl*ERR17*fiMDNMfl6th Cir. 1981)fiMDBUfl*ERR17*fiMDNMfl; NLRB v. St. Francis Hospital of
Lynwood, 601 F.2d 404, 421 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1979)fiMDBUfl*ERR17*fiMDNMfl; NLRB v. City
Yellow Cab Co., 344 F.2d 575, 581 (fiMDBUfl*ERR17*fiMDNMfl6th Cir. 1965)fiMDBUfl*ERR17*fiMDNMfl.
I also note that the Board in interpreting Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of
the Act has been instructed it must not ‘‘construe supervisory
status too broadly, for a worker who is deemed to be a su-
pervisor loses his organizational rights.’’ McDonnell Douglas
Corp. v. NLRB, 655 F.2d 932, 936 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1981)fiMDBUfl*ERR17*fiMDNMfl;
Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100
(fiMDBUfl*ERR17*fiMDNMfl6th Cir. 1987)fiMDBUfl*ERR17*fiMDNMfl; Westinghouse Electric Corp. v. NLRB, 424
F.2d 1151, 1158 (fiMDBUfl*ERR17*fiMDNMfl7th Cir. 1970)fiMDBUfl*ERR17*fiMDNMfl. Consistent with its duty to
avoid any unduly broad construction of supervisory status,
the Board has placed the burden of proving that an individual
is a supervisor on the party alleging that supervisory status
exists. Health Care Corp., 306 NLRB 63 fn. 1 (fiMDBUfl*ERR17*fiMDNMfl
cases cited therein. See also George C. Foss Co. v. NLRB,
752 F.2d 1407, 1410 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1985)fiMDBUfl*E
Bulletin v. NLRB, 631 F.2d 609, 613 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 198
Respondent’s employees are classified as ‘‘foremen,’’
‘‘journeymen’’ and ‘‘apprentices.’’ Respondent’s foremen
work for Respondent as journeymen, when there is no work
for them as foremen. Busch, who began work for Respondent
as a foreman on August 1, 1990, worked for Respondent as
a journeyman for a short time period between the end of his
job in Stockton, California, and the start of 120 Montgomery
Street job herein.
All of Respondent’s employees—f remen, journeymen,
and apprentices—are represented by the Union in a single
bargaining unit. Their terms and conditions of employment
are governed by a collective-bargaining agreement between
the Union and Respondent. Pursuant to that agreement Re-
spondent’s journeymen are paid $21.30 an hour and its
‘‘foremen’’ are paid $24.30 an hour. Otherwise the terms and
conditions of employment of the foremen are identical to that
of the employees classified as ‘‘journeymen.’’
Busch was employed as a foreman by Respondent on the
120 Montgomery Street job from sometime in October 1990
until his July 12, 1991 discharge. He was one of either two
or four workers assigned by Respondent to that job. Nor-
mally there were four workers, including Busch, assigned to
the job. Most of the time there were an equal mix of jour-
neymen and apprentices, i.e., two journeymen (fiMDBUfl*ERR17*fiMDNM
Busch)fiMDBUfl*ERR17*fiMDNMfl and two apprentices or one journeyman (
one apprentice.
Busch was the highest-ranking person employed by Re-
spondent present at the 120 Montgomery Street job, because
Superintendent Walters, during his tenure as superintendent,
visited the jobsite only about 1 hour a week and after
McReaken replaced him as superintendent in May 1991,
McReaken visited the jobsite on only a couple of occasions.
However, the Superintendent was available at any time for
Busch to contact by telephone. In fact, it is undisputed that
each morning, and sometimes in the evenings as well, Busch
spoke to the superintendent over the telephone to inform him
about what was taking place on the job and to receive his
daily instructions from the superintendent, which Busch in
turn relayed to the other employees employed on the job.
Busch spent 7 of the 8 hours of his workday doing the
identical work as the other employees employed on the job
and the remainder of his workday was spent doing the fol-
lowing: talking to the superintendent over the telephone and
relaying the superintendent’s instructions to the other em-
ployees; showing inexperienced apprentices how to use their
tools and how to work safely; getting needed materials; fill-
ing out and transmitting the employees’ timesheets; and plan-
ning ahead for the next workday.
Respondent’s manager, St. Lawrence, testified that at vir-
tually each of the regular meetings he held with the employ-
ees of the waterproofing division,13 he told the employees,
including Busch and the other foremen, that Respondent con-
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 In contending that the record contains evidence which estab-
lishes Busch was a statutory supervisor, I note Respondent, in its
posthearing brief, does not rely upon St. Lawrence’s above-described
testimony.
15 There is no contention nor evidence that Busch possessed the
authority to hire other employees.
sidered its foremen to be ‘‘key people,’’ who were ‘‘super-
vising people,’’ and told them that the foremen had the fol-
lowing authority: to shut the job down if it became unsafe
due to the wind; to terminate employees who did not do their
work correctly; to request specific persons be assigned as
employees to their jobs; to refuse to employ a person on
their jobs; and the authority to chose which employees will
do which tasks on their jobs. St. Lawrence’s testimony was
not contradicted by Busch, who was not asked whether St.
Lawrence made the above remarks. However, St. Lawrence’s
testimonial demeanor—his tone of voice and the way he
looked and acted while on the witness stand—was poor. I re-
ceived the impression from my observation of him that he
was tailoring his testimony to fit Respondent’s theory of the
case, rather than making a sincere and conscientious effort
to remember what he actually said and did in connection
with the events which are material to this case. This, when
considered with the lack of corroboration for his above-de-
scribed testimony, has persuaded me to reject it.
In its posthearing brief Respondent does not point to any
record evidence which even colorably establishes Busch pos-
sessed the authority to transfer, suspend, lay off, recall, pro-
mote, discharge, reward, or discipline other employees, or to
adjust their grievances, or to effectively recommend such ac-
tion. Nor does the record contain any evidence, other than
St. Lawrence’s above-described incredible testimony,14
which even colorably establishes that he possessed any one
of those powers. Therefore, what is left for consideration is
whether Busch possessed the authority to ‘‘hire,’’ ‘‘assign’’
or ‘‘responsibly to direct’’ other employees, or ‘‘effectively’’
to recommend such action, ‘‘if in connection with the fore-
going the exercise of such authority [was] not of a merely
routine or clerical nature, but require(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl the use of independ-
ent judgment.’’
Respondent’s contention that Busch possessed the
authority to effectively recommend that other
employees be hired15
Respondent contends that during Busch’s approximately
11 months of employment with Respondent as a foreman, he
effectively recommended the hire of two job applicants; Kirk
Sandoval and Mario Barnes. The evidence pertinent to an
evaluation of this contention follows:
In the affidavit Busch submitted to the Board during the
investigation of his charge in this case, he stated, among
other things, that ‘‘as foreman I had the authority to rec-
ommend that someone got hired.’’ Busch’s undenied testi-
mony is that no one ever told him he had this authority. He
testified the reason why he included this statement in his af-
fidavit was that during his employment with Respondent, he
was asked by management on two occasions how he felt
about job applicants whom he had worked with previously.
He was referring to Respondent’s hiring of Sandoval and
Barnes. The record reveals that Busch’s involvement in their
hire was as follows.
Busch had worked with Sandoval prior to coming to work
for Respondent. Sandoval applied for a job with Respondent
and used Busch’s name as a reference. Superintendent Wal-
ters asked if Busch was in fact familiar with Sandoval’s
work. Busch informed Walters he had worked with Sandoval
on a couple of occasions. Walters asked if Sandoval knew
how to do Respondent’s type of work and if he was a re-
sponsible person. Busch answered that when he worked with
Sandoval that Sandoval had demonstrated he knew how to
caulk and was a responsible person. Busch recommended Re-
spondent hire Sandoval. Subsequently, Walters interviewed
Sandoval and thereafter Sandoval was hired.
Prior to coming to work for Respondent, Busch had
worked with Barnes on a job which involved work similar
to the type of work Respondent was doing at the 120 Mont-
gomery Street job. Barnes told Busch he wanted to work for
Respondent. Busch went to Superintendent Walters and rec-
ommended to Walters that Walters interview Barnes for a
job. Busch explained to Walters why he believed that Barnes
would be suitable for employment with Respondent. Subse-
quently, Walters interviewed Barnes and thereafter he was
hired.
The aforesaid facts concerning the hiring of Sandoval and
Barnes are based upon Busch’s undenied and uncontroverted
testimony. Walters, a witness called by Respondent, was not
questioned about his interviews with Sandoval and Barnes, or
about the weight, if any, that was given to Busch’s rec-
ommendation that they be hired, nor was he questioned about
any of the other circumstances surrounding Sandoval’s and
Barnes’ hire.
As described supra, Respondent did not present evidence
that its decision to hire Sandoval and/or Barnes was the re-
sult (fiMDBUfl*ERR17*fiMDNMflin whole or even in part)fiMDBUfl*ERR17
As I have previously indicated, the law is settled that al-
though an individual is empowered to recommend that other
employees be hired or fired or disciplined or rewarded, this
authority is insufficient to satisfy the statutory standard for
supervisors unless their superiors are prepared to implement
these recommendations without an independent investigation
or evaluation. Waverly-Cedar Falls Center v. NLRB, 933
F.2d 626, 628 (fiMDBUfl*ERR17*fiMDNMfl8th Cir. 1991)fiMDBUfl*ERR17*fi
ter, 284 NLRB 887, 891 (fiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR
Convalescent Center, 275 NLRB 943, 945–946 (fiMDBUfl*ERR17*fiMDNMfl1
Respondent failed to present any evidence whatsoever as to
what weight, if any, it gave to Busch’s recommendations in
deciding whether to hire Sandoval and Barnes. Absent evi-
dence that his recommendations were effective, they do not
establish supervisory authority. Valley Mart Supermarket,
264 NLRB 156, 161 (fiMDBUfl*ERR17*fiMDNMfl1982)fiMDBUfl*ERR17*fi
661 F.2d 1095, 1099–1100 (fiMDBUfl*ERR17*fiMDNMfl6th Cir. 1981)fiMDBU
It is for the reasons set forth above that I reject Respond-
ent’s contention that Busch possessed the authority to effec-
tively recommend that other employees be hired.
Respondent’s contention that Busch possessed the
authority to assign and responsibly direct other
employees and that such authority was not of a merely
routine or clerical nature, but required the use of his
independent judgment
Busch lacked the authority to assign employees to work on
the 120 Montgomery Street job. The employees were as-
signed to work on this job by Respondent’s superintendent,
601FIRST WESTERN BLDG. SERVICES
who assigned different employees to the job every other day.
On those occasions when Busch asked that the superintend-
ent send him a particular person, his request was usually de-
nied for no expressed reason or because the employee re-
quested was employed on another job.
The various work techniques and materials used by the
employees on the job were prescribed by Respondent’s
project manager and by the materials’ representatives and by
the building owner’s inspectors. They told Busch what work
techniques and materials the employees were to use and
Busch relayed those instructions to the other workers. In ad-
dition, each morning, and sometimes in the evening as well,
Respondent’s superintendent spoke to Busch by telephone,
and gave him instructions about the work which was to be
performed that day or the next day. Busch, in turn, relayed
those instructions to the other employees employed on the
job. In other words, in directing the other employees in their
work Busch was merely following the instructions furnished
by Respondent and others; he was not required to exercise
any independent judgment, but routinely transmitted to the
other employees on the job the instructions and directions he
received from others.
On most days there were two journeymen (fiMDBUfl*ERR17*fiMDNMflBusch and one
other)fiMDBUfl*ERR17*fiMDNMfl and two apprentices assigned to work on the 120
Montgomery Street job. Consistent with the industrywide
practice of having an apprentice work with a journeyman, as
a matter of routine Busch worked with one of the apprentices
on a rig and the other apprentice worked with the other jour-
neyman on the other rig. In following the practice of having
a journeyman work with an apprentice, Busch was not exer-
cising the type of independent judgment contemplated by
Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act, rather he was merely following the
usual routine practiced in the industry.
Busch, during his employment on the 120 Montgomery
Street job, instructed apprentices who had never worked on
a high rise building, how to place their tools on the rig in
such a way so they would not fall off onto a passing pedes-
trian. Busch also instructed inexperienced apprentices, who
had never done the type of work being done on the 120
Montgomery Street job, how to use their tools and how to
cut out and replace caulking. The aforesaid instructions given
to apprentices by Busch, in my view, did not establish he
had the authority to responsibly direct other employees with-
in the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl, because in giving those in-
structions he was not required to use ‘‘independent judg-
ment,’’ inasmuch as the instructions involved nothing more
than the authority of a skilled employee over an unskilled
employee. Any doubt that this was the case is removed by
the undisputed fact that the other journeymen employed on
the job gave the same instructions to the apprentices they
worked with, as Busch gave to the apprentices he worked
with. Also, when Busch worked on a job as a journeyman,
he gave the same instructions to the apprentices on those
jobs that he gave to the apprentices employed on the 120
Montgomery Street job.
One of Busch’s responsibilities as Respondent’s foreman
on the 120 Montgomery Street job was to hold a weekly
safety meeting. During those meetings he reminded the other
employees to do the following: make sure their tools were
in a safe place so they would not fall from the rig onto peo-
ple passing below; be careful when moving the rig up or
down the side of the building; when moving the rig always
keep eye contact with the other person on the rig; and while
working on a rig always be aware of the entire environment.
These safety instructions had been communicated to him by
Respondent and by the company from whom Respondent
was renting the rigs and had also previously been expressed
to Busch while employed on other jobs in the industry.
The instructions Busch gave during the weekly safety
meetings do not establish he possessed the authority to re-
sponsibly direct other employees, as contemplated by Section
2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act. R
which Busch repeated each week, constitute routine commu-
nication of standard safety procedure dictated by established
policy, thus his communication of these safety rules lacked
the type of independent judgment contemplated by Section
2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act.
The workday at the 120 Montgomery Street job was from
7 a.m. to 3:30 p.m. It is undisputed, however, that Busch re-
ceived permission from Superintendent Walters that Busch
and the other employees on the job could leave early, if dur-
ing the regular workday they did not take their two 10-
minute break periods, but instead worked during those two
periods. The record establishes that normally the employees
stopped work on the building at approximately 2:45 p.m.,
pursuant to Busch’s direction, and, at that time, tied up the
rig, stored their tools in the basement of the building, and
went out onto the area surrounding the building to clean up
the debris caused by their work (fiMDBUfl*ERR17*fiMDNMflcollectively th
When they finished the cleanup, Busch told them to go
home.
Respondent contends that the fact Busch directed the other
employees to stop work and start the cleanup and after they
finished the cleanup told them to go home, establishes he
possessed the authority to responsibly direct other employees
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*E
In directing the employees to stop work and start the
cleanup and then, after they finished with the cleanup, direct-
ing them to go home, Busch was simply following the estab-
lished routine of stopping work on the job at approximately
2:45 p.m. for the daily cleanup and ending the workday
when, after the employees finished their cleanup, they had no
more work to do. There was no independent judgment in-
volved in Busch’s conduct. In fact, whenever Busch con-
cluded it might be necessary to deviate from the usual clean-
up routine by starting the cle nup prior to e usual 2:45
p.m. starting time, due to a greater than usual amount of de-
bris, Busch telephoned the superintendent and asked for his
permission to start the cleanup earlier. Respondent makes
much of the fact that Busch allowed the employees to leave
work when they finished the cleanup, even though it was
prior to the 3:30 p.m. quitting time, and submitted timesheets
authorizing that they be paid through 3:30 p.m. However, in
doing so Busch was not exercising his independent judgment,
but was following Superintendent Walters’ instruction that if
Busch and the other employees on the job did not take the
20 minutes of breaktime they were entitled to, they could
leave work early and be compensated as if they worked until
3:30 p.m.
As previously described, the 120 Montgomery Street job
involved a 25-story commercial office building. Respondent
had contracted to cut out all of the old caulking and grout
joints on the outsides of the building and to recaulk it. The
employees employed by Respondent did their work standing
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on scaffolding (fiMDBUfl*ERR17*fiMDNMflrigs)fiMDBUfl*ERR17*fiMDNMfl which were suspended from the top of
the building by strands of cable.
One of Busch’s responsibilities as foreman was to inform
Respondent’s superintendent when the wind made it too dan-
gerous for Busch and the other employees on the job to
work. Busch determined whether it was not safe to work be-
cause of the wind by looking at the way the flags on the ad-
jacent buildings were waving and observing whether the
wind was causing the rigs to move back and forth or away
from the 120 Montgomery Street building.
If Busch observed the wind was blowing strong enough to
cause the rigs to move back and forth or away from the
building, he telephoned Respondent’s superintendent and, as
he testified, the following conversation usually occurred:
Busch informed the superintendent, ‘‘it’s really windy out
here, flags are blowing, the rig is blowing back and forth,
what do you want me to do?’’; the superintendent replied,
‘‘well, if it’s too windy send everybody home’’; and, Busch
answered, ‘‘okay.’’ Busch then told the other employees that
the superintendent stated they should go home and instructed
them to clean up before leaving.
Walters, the superintendent when the 120 Montgomery
Street job began in October 1990 until the beginning of May
1991, testified that whether the employees on that job
worked on a windy day was left to Busch’s discretion. He
testified Busch decided whether the working conditions were
unsafe after evaluating the wind conditions. Walters further
testified that after Busch evaluated the wind conditions and
decided to send the employees home because it was too
windy, only then would he telephone Walters and inform
him of his decision. Busch denied this is what occurred.
Busch testified he did not have the authority to send the em-
ployees home and that no one from Respondent ever told
him he had that authority. More specifically, he testified that
on the days when the wind was strong enough to move the
rigs back and forth or away from the building, that he tele-
phoned Walters and, as described above, described to Wal-
ters what was occurring and asked what Walters wanted him
to do, and that Walters replied that if it was too windy to
send everyone home. I reject Walters’ testimony, insofar as
it conflicts with Busch’s, because Busch’s testimonial de-
meanor, which was good, was better than Walters’, which
was poor.
Normally when Busch telephoned the superintendent and
told him that the winds were moving the rigs back and forth,
the superintendent, as described above, instructed him to shut
the job down and send the employees home. However, on a
few of those occasions Superintendent Walters did not do
this, but instead instructed Busch that Busch and the other
employees should remain at the jobsite on standby for an-
other hour and wait to see if the wind died down, and in-
structed Busch that if the wind in fact died down within the
hour that Busch and the others should go back to work.
On one or two mornings, prior to the start of the workday,
Superintendent Walters, who knew that it was very windy
that day, told Busch that Busch and the other employees on
the job should try to work, but if it was too windy they
should go home, and instructed Busch to use his own judg-
ment about whether or not it was too windy for the employ-
ees to work safely.
It is undisputed that on two different occasions one of the
journeymen employed on the job felt it was too windy for
him to continue working, so he stopped work, without
Busch’s permission, and telephoned Superintendent Walters
and told Walters he felt it was too windy for him to continue
work, and Walters gave him permission to go home, whereas
Busch and the other employees continued to work.
Respondent contends that the above-described evidence,
which shows that Busch directed the employees to cease
work and go home when it was too windy to work, estab-
lishes he possessed the authority to ‘‘responsibly direct,’’ as
that phrase is used in Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*E
because, as described supra, on most of the occasions when
this occurred, Busch had informed the superintendent of the
objective criteria which indicated that it was too windy for
the employees to work safely—the blowing of the flags and
the movement of the rigs back and forth or away from the
building—and it was the superintendent, who, after consider-
ing the objective criteria, made the decision to send the
workers home. I considered that in deciding whether to send
the workers home the superintendent, who was not at the
jobsite, had to rely on Busch’s description of the wind and
its effect on the rigs. In view of this consideration, Respond-
ent apparently takes the position that when Busch advised the
superintendent about the wind conditions that were moving
the rigs back and forth, that Busch was making an effective
recommendation that the job be shut down and the workers
sent home. I disagree. In my opinion Busch did not exercise
significant discretion or independent judgment when he com-
municated to the superintendent what he observed about the
wind and its effect on the rigs, for when certain objective
facts manifested themselves—wind which was sufficient to
cause the rigs to move back and forth or away from the
building—Busch was required as a matter of routine safety
practice to communicate that information to the superintend-
ent so as to alert the superintendent that the working condi-
tions were unsafe.
Alternatively, I am of the view, that even assuming the
record establishes Busch possessed the authority to ‘‘respon-
sibly direct’’ employees to cease work on the occasions that
the wind made it unsafe to work, at the very most, this is
only a very restricted, and sporadic kind of authority, limited
to a certain specific predetermined kind of direction, namely,
directing employees to cease work when it becomes too
windy to work safely. I do not believe that ‘‘authority’’ so
narrowly confined in time and scope, if it can be said to
exist at all, is sufficient to establish supervisory status. For,
as I have found supra, in all other respects Busch’s direction
of the other employees did not require the use of independent
judgment, but was of a routine nature or pursuant to the in-
struction of others. See Dad’s Foods, 212 NLRB 500, 501
(fiMDBUfl*ERR17*fiMDNMfl1974)fiMDBUfl*ERR17*fiMDNMfl (fiMDBUfl*E
for intoxication or for fighting on job found not to possess
the authority to discharge within the meaning of Section
2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl where in all
to discharge other employees)fiMDBUfl*ERR17*fiMDNMfl.
It is for all of the reasons set forth above, I reject Re-
spondent’s contention that Busch possessed the authority to
assign or responsibly direct other employees and that such
authority was not of a merely routine or clerical nature, but
required the use of independent judgment. Rather I find
Busch did not possess the authority to assign or responsibly
direct, as those terms are used in Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fi
603FIRST WESTERN BLDG. SERVICES
16 Walla Walla Union-Bulletin Inc. v. NLRB, 631 F.2d 609, 613
(fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1980)fiMDBUfl*ERR17*fiMDNMfl; Laborers & Hod Carriers Local 341 v. NLRB, 564
F.2d 834, 837 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1977)fiMDBUfl*ERR17*fiMDNMfl; Arizona Public Service Co. v. NLRB,
453 F.2d 228, 231 fn. 6 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1971)fiMDBUfl*ERR17*fiMDNMfl.17 Interboro Contractors, 157 NLRB 1295 (fiMDBUfl*ERR17*fiMDNMfl1966)fiMDBU
Respondent’s contention that Busch’s job title and his
higher rate of pay and that he filled out the employees’
daily timesheets establishes his supervisory authority
In support of its claim that Busch was a statutory super-
visor, Respondent also points to the above-described factors,
not expressly listed in Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act, which are
customarily referred to as secondary indicia of supervisory
authority. However, where, as here, there is no evidence
Busch possessed any one of the several indicia for a super-
visor enumerated in Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl of the Act, the aforesaid
secondary indicia which are not indicators of supervisory au-
thority within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMDNMfl, are insufficient
to establish that Busch was a statutory supervisor, because
the law is settled that ‘‘secondary indicia of supervisory sta-
tus . . . are in themselves not controlling.’’ Bay Area Los
Angeles Express, 275 NLRB 1063, 1080 (fiMDBUfl*ERR17*fiMDNMfl1985)fiMDBUfl*ERR17*fiMDNMfl, quoting
Memphis Furniture Mfg. Co., 232 NLRB 1018, 1020 (fiMDBUfl*ERR17*fiMDNMfl1977)fiMDBUfl*ERR17*fiMDNMfl.
Thus, it is settled that in determining whether a person is a
statutory supervisor that job titles are not controlling since
they are ‘‘unimportant’’ or ‘‘irrelevant’’;16 that the receipt of
higher pay is ‘‘of no legal significance’’ in determining
whether an employee is a superior. NLRB v. Sayers Printing
Co., 453 F.2d 810, 815 (fiMDBUfl*ERR17*fiMDNMfl8th Cir. 1971)fiMDBUfl*ERR17*fiMDNMfl; Oil, Chemical &
Atomic Workers v. NLRB, 445 F.2d 237, 242 (fiMDBUfl*ERR17*fiMDNMflD.C. Cir.
1971)fiMDBUfl*ERR17*fiMDNMfl (fiMDBUfl*ERR17*fiMDNMflthe disparity of compensation cannot be ‘‘accorded
litmus paper significance in the absence of solid evidence of
the possession of supervisory responsibility’’)fiMDBUfl*ERR17*fiMDNMfl; and the task
of recording and submitting to management the employees’
working time is merely routine and clerical and not indic-
ative of supervisory status. John N. Hansen Co., 293 NLRB
63, 64 (fiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMfl, and cases cited therein.
Moreover, the above-described secondary indicia relied
upon by Respondent are offset by Respondent’s recognition
of the Union as the exclusive bargaining representative of its
foremen, as well as its other rank-and-file employees in a
single bargaining unit, and the fact that the working condi-
tions of Respondent’s foremen, including Busch, which are
governed by the Union’s contract with Respondent, are es-
sentially identical to that of the other rank-and-file employ-
ees, except for the higher hourly rate of pay received by the
foreman. Busch, like the other rank-and-file employees, was
paid by the hour, and paid for his overtime and received the
same fringe benefits and worked under the same work rules
as the other rank-and-file employees. In addition, he spent 7
of the 8 hours of his workday doing the identical work as
the other employees.
Nor was Busch a statutory supervisor because he was the
highest ranking employee on the job. The absence of a statu-
tory supervisor did not confer any greater authority upon
Busch, particularly because of the small number of employ-
ees on the job and the nature of the work which enabled Re-
spondent’s superintendent to supervise the job by commu-
nicating with Busch over the telephone. Thus, it is undis-
puted Busch was able to communicate with the superintend-
ent at any time by telephone and that regularly on a daily
basis the superintendent gave directions and instructions to
Busch which Busch relayed to the other employees. Tri-
County Electric Cooperative, 237 NLRB 968, 969 (fiMDBUfl*ERR17*fiMD
(fiMDBUfl*ERR17*fiMDNMfljobsite foremen were employees, even though a
pervisor appeared at the jobsite ‘‘as infrequent as once a
month,’’ because employees had a ‘‘two-way radio to contact
the admitted supervisor when unusual circumstances arose’’)fiMDBUfl*ERR17*
NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (fiMDBUfl*ERR17*fiMDNM
1986)fiMDBUfl*ERR17*fiMDNMfl (fiMDBUfl*ERR17*fiMDNMfl‘‘absence of
tion does not show that workers must be supervisors, where
admitted supervisors were available for consultation’’ even
though not present at station)fiMDBUfl*ERR17*fiMDNMfl; see also Beth Isra
Center, 229 NLRB 295, 296 (fiMDBUfl*ERR17*fiMDNMfl1977)fiMDBUfl*E
Tube Co., 545 F.2d 1320 (fiMDBUfl*ERR17*fiMDNMfl2d Cir. 1976)fiMDBUfl
Conclusionary Finding
For the reasons set forth supra, I conclude Respondent
failed to establish Busch possessed any of the indicia of su-
pervisory authority enumerated in Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fi
I therefore find that Busch was not a supervisor within the
meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl11)fiMDBUfl*ERR17*fiMD
2. Busch’s discharge
In NLRB v. City Disposal Systems, 465 U.S. 822 (fiMDBUfl*ERR17*fiMDN
the Supreme Court endorsed the Board’s Interboro doctrine17
which recognizes that an employee’s ‘‘honest and reasonable
invocation of a collectively bargained right constitutes con-
certed activity, regardless of whether the employee turns out
to have been correct in his belief that his right was vio-
lated.’’ Id. at 840. Although the Supreme Court observed that
the ‘‘principal tool by which an employee invokes the rights
granted him in a collective-bargaining agreement is the proc-
essing of a grievance according to whatever procedures his
collective-bargaining agreement establishes,’’ the Court also
included within the ambit of concerted activity a protest to
the employer rather than the filing of a formal grievance. Id.
at 836. The Court also concluded that in voicing a complaint
the complaining employee need not explicitly refer to the
collective-bargaining agreement as the basis for the com-
plaint, but that ‘‘[a]s long as the nature of the employee’s
complaint is reasonably clear to the person to whom it is
communicated, and the complaint does, in fact, refer to a
reasonably perceived violation of the collective-bargaining
agreement, the complaining employee is engaged in the proc-
ess of enforcing the agreement.’’ Id. at 840.
In view of the Court’s decision in City Disposal, it is set-
tled that when an employee, who, in complaining to his em-
ployer about his terms and condition of employment, asserts
a right grounded in the governing collective-bargaining
agreement, that the employee is engaged in concerted activity
protected by Section 7 of the Act, and that if the employer
discharges the employee for such activity, the discharge vio-
lates Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fi
Counsel contends this is what occurred in the instant case.
Respondent contends Busch’s discharge did not violate the
Act because he was a statutory supervisor and even if he was
not a statutory supervisor, his complaints to Respondent do
not constitute protected concerted activity, and, even if they
do, he was not discharged because of them, but for legitimate
business reasons. As I have found supra, Respondent failed
to establish Busch was a statutory supervisor, and, for the
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasons set forth infra, I am also of the opinion that, as con-
tended by the General Counsel, the record establishes Re-
spondent’s discharge of Busch was motivated by his pro-
tected concerted activity, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl
the Act.
As found supra, all of Respondent’s foremen, except for
Busch, normally were assigned a van to drive to and from
Respondent’s facility and their jobs and were paid ‘‘drive
time’’ for the time they spent driving the van. Also, as found
supra, beginning in September 1990 and ending in late May
or early June 1991, Busch complained on five different occa-
sions to Respondent’s manager, St. Lawrence, that Respond-
ent was not providing him with a van for transportation to
and from the job and ‘‘drive time’’ for driving the van. In
voicing this complaint, Busch also stated that if Respondent
did not provide him with a van and pay him ‘‘drive time’’
for driving it, that as an alternative it was obligated to pay
him what he sometimes referred to as ‘‘travel pay,’’ for the
cost and expense he was incurring in getting to and from
work. However, it is clear from the content of Busch’s con-
versations with St. Lawrence, described in detail supra, that
Busch made it clear he was primarily interested in having
Respondent treat him like the rest of the foremen by assign-
ing him a van for transportation and paying him ‘‘drive
time’’ for driving the van, and was insisting on so called
‘‘travel pay’’ only as an alternative if Respondent did not
furnish him with a van and pay him ‘‘drive time.’’
It must have been reasonably clear to Respondent that
Busch’s demand for a company van and ‘‘drive time’’ pay
for driving it to and from work, or, in the alternative, for
‘‘travel pay,’’ was based upon the terms contained in Re-
spondent’s collective-bargaining agreement with the Union. I
recognize that Busch initially did not specifically inform Re-
spondent that his above-described demand was based upon
the provisions of the collective-bargaining agreement. How-
ever, when the language of the travel section of the agree-
ment, article 12, set forth in detail supra, is compared with
Busch’s demand, as expressed in his several conversations
with St. Lawrence, Respondent must have realized that
Busch’s demand, whether it had merit or not, was based
upon the provisions set forth in article 12 of the collective-
bargaining agreement. In any event, any doubt Respondent
may have had about this was removed when, in late May
1991 or early June 1991, Busch expressly told St. Lawrence
that Busch’s complaint about Respondent’s failure to provide
him with transportation to the job in the form of a van or,
in the alternative, to reimburse him for his travel costs and
expense, was based upon his understanding of the ‘‘union
contract.’’
Busch’s insistence that Respondent provide him with a van
for transportation to and from work and ‘‘drive time’’ pay
when he drove the van, or, in the alternative, ‘‘travel pay’’
for the costs and expense incurred in getting to and from
work, was based on his honest and reasonable belief that he
was entitled to these working conditions under the terms of
the Union’s collective-bargaining agreement with Respond-
ent.
The reasonableness of Busch’s belief is supported by the
terms of the collective-bargaining agreement: Section 1, arti-
cle 12 provides, in substance, that employees are to report
to the Respondent’s facility each day for work and may not
be required to report directly to their jobs; section 2, article
12 provides, in substance, that an employee who drives a ve-
hicle from Respondent’s facility to the job, at the start of the
workday, and back to the facility, at the end of the workday,
must be compensated for the actual time spent driving the
vehicle during those periods, herein previously referred to as
‘‘drive time’’ pay; it is Respondent’s usual practice to have
its foremen drive company vans to and from their jobs, and
it is also undisputed that Respondent and the Union interpret
the aforesaid provisions of the agreement as meaning that the
drivers of the Respondent’s vans, the employees’ classified
as foremen, must be paid for their ‘‘drive time’’; section 6,
article 12 provides, in substance, that if Respondent fails to
furnish transportation to its employees from its facility to
their jobs, and when its employees are requested to use their
personal vehicles to travel to and from the jobs, they must
be paid 35 cents per hour from the shop to the job and from
the job back to the shop; and section 3 of article 12 provides,
in substance, that when employees travel from Respondent’s
facility to the job and the job is located beyond a 15-mile
‘‘free zone’’ radius from Respondent’s facility, the employ-
ees must be compensated up to a maximum of $34 daily for
their costs and expenses.
I considered that Busch’s job, the 120 Montgomery Street
job, was within the 15-mile free zone radius, as that term is
interpreted by the Respondent and the Union, and that in Oc-
tober 1990 Union Representative Boyer told Busch he was
not entitled to the $34-a-day per diem payments because his
job was within the free zone. However, the actual driving
distance between the 120 Montgomery Street job and Re-
spondent’s facility was more than 15 miles and Busch, dur-
ing the time material, knew this. It was because of this that
he thought the job was outside of the 15-mile radius, which
the agreement stated comprised the ‘‘free zone.’’ He did not
understand that actual driving mileage is not used to measure
what is defined as a ‘‘radius.’’ I am of the view that it was
not unreasonable for an unsophisticated employee, such as
Busch, to fail to understand this. In any event, as found
supra, Busch made it clear to Respondent that he was pri-
marily interested in having Respondent treat him like all of
its other foremen, by assigning him a van for transportation
and paying him ‘‘drive time’’ pay for driving the van, and
was only insisting on being paid so-called travel pay, which
included the $34 a day per diem, as an alternative, if Re-
spondent did not furnish him with a van and pay him for his
‘‘drive time.’’ Moreover, under any interpretation of article
12 of the collective-bargaining agreement, Busch had good
reason to believe that Respondent was violating the terms of
the Agreement by failing to provide him with transportation
to the job.
The conclusion that Busch honestly and reasonably in-
voked his collectively bargained for rights by insisting that
Respondent provide him with a van and ‘‘drive time’’ pay
for driving it, or, in the alternative, pay him ‘‘travel pay’’
for the cost and expense he incurred in getting to and from
work, is also supported by the fact that in October 1990,
when Busch went to the Union and complained to the
Union’s Business manager, Boyer, that Respondent was not
providing him with a van for transportation and that he was
not being reimbursed for his travel, Boyer replied by inform-
ing Busch that he was entitled to a van for transportation and
to reimbursement for his travel, but suggested that Busch
present his complaint to Respondent’s management instead
605FIRST WESTERN BLDG. SERVICES
18 Respondent contends Busch’s complaints herein did not con-
stitute protected concerted activity because they were part of his in-
subordinate refusal to obey the working conditions established by
Respondent and constituted an attempt by Busch to establish his own
terms and conditions of employment. This contention is based upon
Respondent’s further contention that the record establishes the fol-
lowing: that on February 26, 1991, Respondent’s General Super-
intendent Conley, responded to Busch’s complaint by agreeing to as-
sign him a van for transportation to and from the job and Respond-
ent’s facility and to pay him for his ‘‘drive time,’’ and, that Busch
refused to use a company van, but instead defied Conley’s by con-
tinuing to use BART to transport himself to and from work, while
still insisting that Respondent pay him ‘‘drive time’’ and/or reim-
burse him for his travel. For the reasons set forth previously, I have
found that the record evidence relied upon by Respondent in support
of this contention is incredible.
19 See NLRB v. Transportation Management Corp., 462 U.S. 393
(fiMDBUfl*ERR17*fiMDNMfl1983)fiMDBUfl*ERR17*fiMDNMfl, in which the Supreme
set forth in Wright Line.
20 I considered that McReaken, in his conversation with Busch, did
not expressly voice the above-described threat. Rather, after inform-
ing Busch that Conley stated Busch would not receive a company
van and should leave the issue alone, McReaken remarked that
Conley also stated Busch had the choice of being demoted from his
job as foreman or of being written up and fired for his tardiness.
This latter remark, when viewed in its context, constitutes a none-
Continued
of filing a grievance with the Union. Busch followed Boyer’s
suggestion.
It is also significant that Respondent did not tell Busch his
complaint lacked merit. He was not informed by Respondent
that under the terms of the governing collective-bargaining
agreement he was not entitled to a company van for transpor-
tation or ‘‘drive time’’ pay. Nor was he told by Respondent
that he was not contractually entitled to his alternative re-
quest for ‘‘travel pay’’ of 35 cents per mile and/or a daily
per diem payment. No such explanation was given to Busch
by Respondent, even after Busch specifically informed Re-
spondent that his belief that he was entitled to those benefits
of employment was based upon the terms of the union con-
tract. Rather, as described supra, Respondent’s response to
Busch’s complaint was to tell him that since Respondent was
always doing favors for Busch and Respondent’s other fore-
men, that Respondent expected Busch to return those favors
by dropping his complaint, and when Busch indicated he did
not intend to drop the complaint, Respondent, as described
in detail supra, answered by threatening to demote or dis-
charge him for tardiness if he continued to press his com-
plaint. Obviously, the manner in which Respondent replied to
Busch’s complaint was reasonably calculated to lead Busch
to believe that his complaint was meritorious and to reinforce
Busch’s belief that he had the right to what he was asking
for under the terms of the governing collective-bargaining
agreement. Respondent is now hard pressed to question the
honesty, sincerity, or reasonableness of Busch’s belief, when
it never told Busch that his interpretation of the contract was
incorrect, but instead gave Busch every reason to believe that
his complaint had merit.
It is for the above-reasons that I conclude Busch honestly
and reasonably invoked his collectively bargained for rights
by insisting Respondent provide him with transportation to
and from his job in the form of a company van and ‘‘drive
time’’ pay for driving the van, or, in the alternative, give him
‘‘travel pay,’’ regardless of whether he was correct in his be-
lief that his rights were in fact violated. I therefore find on
the basis of the criteria enunciated in City Disposal Systems
that the complaint of Busch concerning violations of the con-
tract involving terms and conditions of employment con-
stituted protected concerted activity within the meaning of
Section 7 of the Act.18
I now consider the question whether the Respondent dis-
charged Busch because of his protected concerted activity.
Under Wright Line, 251 NLRB 1083 (fiMDBUfl*ERR17*fiMDNMfl1980)fiMDBUfl*ERR17*fiMDNMfl, the General
Counsel must make a prima facie showing that Busch’s pro-
tected conduct was a motivating factor in the Respondent’s
decision to discharge him. Once this is established, the bur-
den shifts to the Respondent to demonstrate the same action
would have taken place even in the absence of the protected
conduct.19 Of course, where it is shown that the employer’s
proffered justification is only a pretext, the analysis of the
employer’s motivation is logically at an end. As the Board
has explained, once it is proved that the reason advanced by
the employer did not exist, or was not, in fact, relied upon,
there is no remaining predicate for any determination that the
adverse action would have been taken even in the absence
of protected activity. Wright Line, supra at 1084. See also
Postal Service, 275 NLRB 510 (fiMDBUfl*ERR17*fiMDNMfl1985)fiMDBUfl*E
For the reasons set forth below, I find the General Counsel
has established that a motivating factor in Respondent’s deci-
sion to discharge Busch was Respondent’s hostility toward
him for his protected concerted activity; namely, for insisting
Respondent provide him with a company van for transpor-
tation and with ‘‘drive time’’ pay for driving the van, or, in
the alternative, pay him ‘‘travel pay.’’ I am also of the opin-
ion, for the reasons below, that Respondent failed to estab-
lish Busch would have been discharged even absent his pro-
tected concerted activity.
Respondent was extremely hostile to Busch and threatened
to demote or discipline and discharge him for insisting that
Respondent provide him with a company van for transpor-
tation and with ‘‘drive time’’ pay, or, in the alternative, pay
him ‘‘travel pay.’’ This conclusion is based upon the find-
ings set forth in detail supra, which are briefly summarized
as follows.
The initial response of Respondent’s manager, St. Law-
rence, to Busch’s above complaint was to ask why Busch
was making such a big deal out of ‘‘this little issue’’ and
then to suggest Busch owed Respondent a favor which he
could repay by dropping his complaint. Busch ignored St.
Lawrence’s suggestion and made it clear he intended to con-
tinue to press his complaint until it was resolved. Eventually,
late in May or early June 1991, on the fifth occasion Busch
spoke to St. Lawrence about his complaint, Busch told St.
Lawrence that his complaint was no longer negotiable be-
cause he believed he was entitled to what he was asking for
under the terms of the union contract. The next day, Super-
intendent McReaken, who was present the day before when
Busch spoke to St. Lawrence, told Busch he had spoken to
General Superintendent Conley about Busch’s complaint and
Conley had instructed McReaken to tell Busch that Busch
would not receive a company van and for Busch ‘‘to leave
the issue alone.’’ McReaken also warned Busch that Conley
had threatened to either demote or discipline and discharge
Busch for his tardiness, if Busch did not obey Conley’s in-
struction to stop complaining.20
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to-subtle threat of demotion or discipline and discharge, if Busch did
not stop complaining about Respondent’s failure to provide him with
a van for transportation. Having found that Busch’s right to make
such a complaint to the Respondent was protected concerted activity
within the meaning of Sec. 7 of the Act, I further find McReaken’s
implied threat to Busch that he would be demoted or disciplined and
discharged, if he continued to express this complaint, violated Sec.
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl of the Act.
During the same time period Superintendent McReaken
also told Respondent’s project manager, Barnes, that if
Busch did not stop complaining about his ‘‘travel pay’’ that
Respondent intended to discharge him for his tardiness.
McReaken, who less than a month earlier had replaced Wal-
ters as superintendent, told Barnes that Busch was ‘‘still
whining about . . . travel pay,’’ and stated that while former
Superintendent Walters could not handle the matter,
McReaken knew how to ‘‘fix’’ Busch. McReaken explained
to Barnes that if Busch was late three more times, McReaken
intended to fire him and that would be ‘‘the end’’ of Busch’s
complaints about travel pay.
On the day Superintendent McReaken told Busch that
General Superintendent Conley had threatened to demote or
discipline and discharge him if he did not discontinue insist-
ing Respondent supply him with a company van for transpor-
tation, Busch, later that day, informed former Superintendent
Walters about Conley’s message. Walters, who was now em-
ployed by Respondent in another position, explained to
Busch that Conley’s reason for disliking Busch was Conley
thought Busch was a ‘‘whiner’’ who was persistent about his
‘‘union rights.’’
It is for all of the above-reasons that I find the record es-
tablishes Respondent was extremely hostile to Busch and
threatened to demote or discipline and discharge him, for in-
sisting Respondent assign him a company van for transpor-
tation to and from work and pay him ‘‘drive time’’ pay for
driving the van, or, in the alternative, pay him ‘‘travel pay.’’
Also relevant in assessing Respondent’s motivation for
discharging Busch is that during Busch’s termination inter-
view, St. Lawrence indicated to Busch that a motivating fac-
tor for his decision to discharge Busch was Busch’s insist-
ence on being assigned a company van with ‘‘drive time’’
pay, or, in the alternative, being paid ‘‘travel pay.’’ During
the interview, St. Lawrence, after telling Busch that he was
a ‘‘great worker,’’ brought up the subject of Busch’s afore-
said complaint. St. Lawrence remarked that he thought the
‘‘travel issue’’ had been resolved and stated that ever since
Busch had confronted St. Lawrence about the ‘‘issue of trav-
el,’’ that St. Lawrence thought Busch had ‘‘lost confidence’’
in both the Company and in St. Lawrence. St. Lawrence of-
fered no other reason during the termination interview for his
decision to discharge Busch.
Evidence of disparate treatment also furnishes support for
the inference that Busch’s discharge was unlawfully moti-
vated. Thus, it is undisputed that Respondent maintains a
system of progressive discipline which was not followed in
Busch’s case. If Respondent believes that an employee, in-
cluding an employee classified as a foreman, has engaged in
or is engaging in objectionable conduct, Respondent requires
its superintendent to issue a series of written warning notices
to the employee before discharging him for the objectionable
conduct. Not one written warning notice was issued to Busch
and no explanation was given by Superintendents Walters
and McReaken, who testified for Respondent, why they
failed to issue Busch a written warning notice, as required
by Respondent’s system of progressive discipline, if they ob-
jected to his tardiness and/or his failure to follow instruc-
tions. During the same period in which Busch’s discharge
occurred, another employee classified as a foreman, Mark
McCarter, was discharged by Respondent for his excessive
tardiness, but only after Superintendents Walters and
McReaken had issued him several written ‘‘Employee Warn-
ing Notice(fiMDBUfl*ERR17*fiMDNMfls)fiMDBUfl*ERR17*fiMDNMfl’’ over
nation was offered by Respondent for the different treatment
accorded Busch.
Lastly, the inference of unlawful motivation for Busch’s
discharge is also supported by the implausibility and the
pretextual nature of Respondent’s proffered reason for the
discharge. Wright Line, supra, 251 NLRB at 1088 fn. 12;
Postal Service, 275 NLRB 510 (fiMDBUfl*ERR17*fiMDNMfl1985)fiMDBU
NLRB, 881 F.2d 542, 545–546 (fiMDBUfl*ERR17*fiMDNMfl8th Cir. 1980)
Haines, Inc., 306 NLRB 634 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ER
son who decided to discharge Busch, testified, as set forth
in detail supra, that Busch was a talented and an excellent
worker, but that St. Lawrence decided to discharge him for
two reasons: ‘‘chronic tardiness’’; and the ‘‘inability to fol-
low instructions,’’ namely, Busch failed to follow the pro-
duction technique instructions St. Lawrence gave him on July
3, 1991. I am of the opinion, for the reasons below, that the
record as a whole establishes that these reasons are com-
pletely without substance and pretextual.
On July 3, at the start of the workday, as I have found
supra, St. Lawrence visited the 120 Montgomery Street job
and instructed Busch to change the production technique
being used on the job. As I have also found supra, prior to
July 10, Busch and the other employees on the job worked
July 3, 5, and 8, and on each of those days performed their
work in a manner consistent with St. Lawrence’s July 3 in-
structions. This finding was based on Busch’s undenied and
uncontroverted testimony. Respondent presented no evidence
that Busch failed to obey St. Lawrence’s July 3 instructions.
Nor did Respondent present evidence from which I could
draw the inference that Respondent had reason to believe that
Busch had disobeyed St. Lawrence’s July 3 instructions. Nei-
ther McReaken nor St. Lawrence testified they observed
Busch disobey those instructions or that they inspected the
job and from their inspection reached the conclusion Busch
had disobeyed St. Lawrence’s instructions. Their sole testi-
mony on this issue was that on July 10 McReaken verbally
informed St. Lawrence that besides coming to work late that
day, Busch had also failed to follow St. Lawrence’s July 3
production technique instructions. McReaken did not testify
how he concluded Busch failed to follow St. Lawrence’s July
3 production technique instructions. This significant omission
in his testimony is not surprising because the record reveals
that, under the existing circumstances, it would have been
physically impossible for McReaken on July 10, prior to
communicating with St. Lawrence, to have inspected the 120
Montgomery Street job, so as to have determined whether or
not Busch had complied with St. Lawrence’s July 3 produc-
tion technique instructions. It is for all of the above reasons,
and because of St. Lawrence’s and McReaken’s poor testi-
monial demeanor when they testified about the events sur-
rounding the decision to discharge Busch, that I find Busch
did not disobey St. Lawrence’s July 3 production technique
607FIRST WESTERN BLDG. SERVICES
21 McReaken, during this period of time, also told Respondent’s
Project Manager Barnes that if Busch did not stop complaining
about his ‘‘travel pay,’’ Respondent intended to discharge him for
his tardiness.
22 St. Lawrence testified if Busch had not been late for work on
July 10 he ‘‘probably’’ would not have decided to discharge him for
his failure to obey St. Lawrence’s July 3 production technique in-
structions, but would have merely talked to him about his failure to
obey those instructions.
23 I considered McReaken’s testimony that after replacing Walters
as superintendent, he informed St. Lawrence that he had ‘‘heard in
the field’’ that the 120 Montgomery Street job was starting late.
McReaken testified he was unable to remember St. Lawrence’s re-
sponse. I reject his testimony because his testimonial demeanor was
poor and I find it incredible that McReaken viewed Busch’s tardi-
ness as serious enough to mention to St. Lawrence, yet not serious
enough to issue Busch a written warning notice as required by Re-
spondent’s established disciplinary procedure, or, as I have found
supra, to even verbally warn Busch about his tardiness.
instructions and that when St. Lawrence decided to discharge
Busch he had no reason to believe Busch had not followed
those instructions.
During his approximately 9 months of employment on the
120 Montgomery Street job, Busch was late for work on an
average of once a week. It was not until late May or early
June 1991, after he had been on that job for approximately
7 months, that anyone from Respondent spoke to him about
his tardiness and it was not until July 3, 1991, that anyone
from Respondent spoke to him critically about his tardiness.
In late May or early June 1991, as found supra, Superintend-
ent McReaken implicitly warned Busch that if he did not
stop complaining about Respondent’s failure to provide him
with a company van for transportation, Respondent would ei-
ther demote him from his foreman position or write him up
and fire him for his tardiness.21 Busch replied by indicating
he did not intend to stop complaining about Respondent’s
failure to provide him with transportation. Subsequently, on
July 3, for the first time, Superintendent McReaken and
Manager St. Lawrence criticized Busch for being tardy; they
verbally reprimanded him for coming to work late that day
and instructed him to come to work prior to 7 a.m., so he
would be ready to start work at the 7 a.m. starting time. It
is undisputed that the following week Busch arrived late for
work on July 10 and that McReaken, who observed this, sus-
pended him from work ostensibly for his tardiness, and St.
Lawrence then decided Busch should be discharged, rather
than just suspended. St. Lawrence testified, as described in
detail supra, that he decided to discharge Busch on account
of his ‘‘chronic tardiness.’’22
St. Lawrence’s decision to discharge Busch for ‘‘chronic
tardiness’’ refers to more than his just being late for work
on July 3 and July 10, 1991, inasmuch as St. Lawrence’s use
of the term ‘‘chronic’’ refers to tardiness which had gone on
for a long period of time. In this respect, St. Lawrence testi-
fied that Superintendents Walters and McReaken were con-
stantly telling St. Lawrence about Busch’s tardiness (fiMDBUfl*ERR17*fiMDNMflTr.
230)fiMDBUfl*ERR17*fiMDNMfl. More specifically, St. Lawrence testified he first
learned there was a problem with Busch’s tardiness in either
November or December 1990, when Superintendent Walters
told him there were complaints Busch was not coming to
work on time. St. Lawrence testified he instructed Walters to
correct the problem. Subsequently, according to St. Law-
rence, Walters told him he was still having ‘‘a little bit of
a chronic tardiness problem’’ with Busch. St. Lawrence testi-
fied he once again instructed Walters to remedy the problem.
When in May 1991, McReaken replaced Walters as super-
intendent, St. Lawrence testified McReaken told him Busch
was coming to work late by as many as 10 minutes. St. Law-
rence testified he informed McReaken that Walters had told
him Busch had a problem with tardiness, and further testified
he instructed McReaken to remedy the problem. Then, at the
end of June 1991, according to St. Lawrence, McReaken told
him that the problem with Busch’s tardiness still persisted.
St. Lawrence testified he instructed McReaken to start mon-
itoring the situation personally. St. Lawrence’s aforesaid tes-
timony set forth in this paragraph concerning the complaints
made to him about Busch’s tardiness by Superintendents
Walters and McReaken is not credible because of the reasons
below.
St. Lawrence’s demeanor when he gave this testimony—
his tone of voice and the way he looked and acted while he
was on the witness stand—was poor.
Walters, a witness for the Respondent, contradicted St.
Lawrence’s testimony that Walters, when he was super-
intendent, complained to St. Lawrence about Busch’s tardi-
ness. Walters testified he did not tell any of his superiors
about Busch’s tardiness.23
St. Lawrence’s testimony, when considered in the context
of the whole record, is inherently incredible. It does not ring
true that Superintendents Walters and McReaken complained
to St. Lawrence about Busch’s tardiness, as described above
by St. Lawrence, when, as I have found supra, Walters never
even spoke to Busch about his tardiness and, as I have also
found supra, it was not until July 3 that McReaken spoke to
Busch critically about being late for work. It is not believ-
able that Walters and McReaken would have complained to
St. Lawrence about Busch’s tardiness, as St. Lawrence testi-
fied, if they did not view his tardiness serious enough to
speak to Busch personally about the matter. It is also signifi-
cant that the record reveals that if either Superintendent Wal-
ters or McReaken or Manager St. Lawrence had in fact con-
sidered Busch’s tardiness to be objectionable, that under Re-
spondent’s established system of progressive discipline, Su-
perintendents Walters and McReaken would have ordinarily
issued a written warning notice to Busch informing him of
this. Yet, no written warning notice was ever issued to Busch
and no credible explanation for this omission was given by
either Walters, or McReaken or St. Lawrence.
It is for the foregoing reasons that I reject St. Lawrence’s
testimony that Superintendents Walters and McReaken com-
plained to him about Busch’s tardiness prior to July 1991.
Rather, I find Respondent’s supervision and management
condoned Busch’s chronic tardiness from October 1990 until
July 1991.
I am also of the opinion that the record establishes Re-
spondent stopped condoning Busch’s ‘‘chronic tardiness’’ in
July 1991 and used it as an excuse to discharge him for re-
fusing to obey Respondent’s command that he stop engaging
in what I have found to be his protected concerted activity
herein; his insistence that Respondent provide him with a
company van for transportation to and from work, with
‘‘drive time’’ pay, or, in the alternative, with ‘‘travel pay.’’
Thus, by late May or early June 1991 Busch had made it
clear to Respondent that he did not intend to comply with
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Since I have found Respondent violated Sec. 8(fiMDBUfl*ERR17*fiMDNMfla)fiMD
by suspending and discharging Busch for engaging in protected con-
certed activity under City Disposal Systems, supra, I find it unneces-
sary to determine whether the discharge also violated Sec. 8(fiMDBUfl*ERR17*fiMDNM
the Act since the finding of such an additional violation would not
materially affect the recommended Order.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
the requests of Respondent’s manager, St. Lawrence, and its
general superintendent, Conley, that he cease engaging in the
aforesaid concerted activity. Instead, Busch made it clear to
them that he thought he was entitled to those employment
benefits under the terms of the Union contract and intended
to continue to press for them. Respondent’s answer to
Busch’s refusal to obey its command to cease engaging in
his concerted activity was to have Superintendent McReaken
implicitly threaten Busch that if he did not stop engaging in
this activity, Respondent would either demote him or write
him up and discharge him for his tardiness. Also, McReaken
informed Respondent’s project manager, Barnes, that if
Busch did not stop engaging in his concerted activity that
Respondent intended to discharge him for his tardiness.
Busch’s response to McReaken’s aforesaid threats was to in-
dicate he did not intend to obey Respondent’s command that
he cease engaging in his concerted activity. It was shortly
thereafter that Busch for the first time was criticized by Re-
spondent for his tardiness and then discharged for what Re-
spondent now claims was his ‘‘chronic tardiness.’’ These cir-
cumstances, when viewed in the context of Respondent’s
prior condonation of Busch’s ‘‘chronic tardiness,’’ over-
whelmingly establish that Busch’s ‘‘chronic tardiness’’ was
not the real reason for Respondent’s decision to discharge
him, but was seized upon by Respondent as an excuse to jus-
tify his discharge.
Considering Respondent’s extreme hostility toward Busch
and its threat to demote or discipline and discharge him for
insisting that Respondent provide him with a company van
for transportation and with ‘‘drive time’’ pay or, in the alter-
native, with ‘‘travel pay‘‘—activity which was protected con-
certed activity; considering that during Busch’s termination
interview Respondent indicated that a motivating factor in its
decision to discharge him was his protected concerted activ-
ity; considering that in discharging Busch, Respondent devi-
ated from its usual system of progressive discipline; consid-
ering that Busch was the victim of disparate treatment; and
considering that the reasons advanced by Respondent for
Busch’s discharge are either without substance or pretextual;
I find the General Counsel has established that a motivating
factor in Respondent’s decision to discharge Busch was his
protected concerted activity. The General Counsel therefore
has presented a prima facie case that Busch was discharged
because of his protected concerted activity. Under Wright
Line, Respondent must show that it would have discharged
him anyway, absent his protected concerted activity. Since I
have found, supra, that the proffered reasons for the dis-
charge were either without substance or pretextual, I con-
clude that Respondent has not met its Wright Line burden.
Therefore, I find that the Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDN fl(fiMDBUfl ERR17*fiMDNM
of the Act by discharging Busch on July 12, 1991, because
of his protected concerted activity. For the same reasons, I
also find Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl
10, 1991, it suspended Busch. I considered that Busch’s July
10 suspension, which was changed to a discharge 2 days
later, was not alleged to have violated the Act. However, the
issue of Respondent’s motivation in suspending Busch was
closely related to the issue of its motivation in discharging
him 2 days later and the issue of Respondent’s motivation
in suspending him was fully litigated.24
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR
2. The Union is a labor organization within the meaning
of Section 2(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of th
3. The Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDB
its July 10, 1991 discriminatory suspension and its July 12,
1991 discriminatory discharge of Taras Busch because he en-
gaged in the concerted activity for mutual aid and protection
of protesting what he reasonably and honestly deemed to be
violations of the collective-bargaining agreement between the
Union and the Respondent.
4. The Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDB
threatening Busch in late May or early June 1991 with demo-
tion, discipline, and discharge if he continued to engage in
the concerted activity for mutual aid and protection of pro-
testing what he reasonably and honestly deemed to be viola-
tions of the collective-bargaining agreement between the Re-
spondent and the Union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDB
shall recommend that it cease and desist and take certain ac-
tion of effectuate the policies of the Act.
Having found that Respondent violated the Act by sus-
pending and discharging Taras Busch, I shall recommend
that Respondent offer him immediate and full reinstatement
to his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or any other rights and privileges. I shall also rec-
ommend that Respondent make Busch whole for any loss of
earnings and other benefits he may have suffered as a result
of his unlawful suspension and discharge, with backpay to be
computed in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNM
manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (fiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMfl
spondent remove from its records any reference to the unlaw-
ful suspension and discharge, provide Busch with written no-
tice of the removal, and inform him that the unlawful sus-
pension and discharge will not be used as a basis for future
personnel action.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
609FIRST WESTERN BLDG. SERVICES
26 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
National 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.’’
ORDER
The Respondent, First Western Building Services, Inc.,
San Leandro, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Discharging, suspending or otherwise disciplining em-
ployees because they exercise their right to engage in con-
certed activities as guaranteed by Section 7 of the Act.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Threatening to discharge, demote, or to otherwise dis-
cipline employees because they exercise their right to engage
in concerted activities as guaranteed by Section 7 of the Act.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Offer Taras Busch immediate and full reinstatement to
his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights and privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of the decision.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Remove from its files any reference to the unlawful
suspension and discharge of Taras Busch and notify him in
writing that this has been done and that the suspension and
discharge will not be used against him in any way.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl Post at its San Leandro, California facility copies of
the attached notice marked ‘‘Appendix.’’26 Copies of the no-
tice on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(fiMDBUfl*ERR17*fiMDNMfle)fiMDBUfl*ERR17*fiMDNMfl Notify the Reg
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint allegations not
specifically found are dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge, suspend or otherwise discipline
you because you exercise your rights to engage in concerted
activities as guaranteed by Section 7 of the Act.
WE WILL NOT threaten you with discharge, demotion, or
with discipline for exercising your rights to engage in con-
certed activities as guaranteed by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Taras Busch immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously
enjoyed and WE WILL make him whole for any loss of earn-
ings and other benefits resulting from his suspension and dis-
charge, less any net interim earnings, plus interest.
WE WILL remove from our files any reference to the un-
lawful suspension and discharge of Taras Busch and notify
him in writing that this has been done and that the suspen-
sion and discharge will not be used against him in any way.
FIRST WESTERN BUILDING SERVICES, INC.