Lorac Construction Services

National Labor Relations Board - Board Decisions

Sep 8, 1995

318 N.L.R.B. 1034 (N.L.R.B. 1995)

1034
318 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise indicated.
2 The Union referred approximately 50 employees to the Mead job.
3 Art. IV, secs. B, H, and I state the following:
All necessary equipment for burning and welding shall be fur-
nished by the Employer.
. . . The employer shall furnish a suitable room for use of
members for the purpose of storing tools . . . The room in
which tools of members are stored shall be provided with a sub-
stantial lock. Employers shall carry adequate fire and theft insur-
ance on tools of United Brotherhood members and shall be re-
quired to replace stolen tools . . . .
Any contractor . . . who employs members shall furnish re-
frigerated water and/or ice water during the hot weather, from
April to November 30, in sanitary containers with sanitary
drinking cups available at all times when work is performed by
members.
Art. IX, secs. A and D state the following:
A Millwright crew shall consist of six (6) Journeymen and
two (2) apprentices. After six (6) Journeymen and two(2) ap-
prentices are employed, one (1) Foreman in addition to the Gen-
eral Foremen will be hired when additional Millwrights are
hired.
. . . The pay rate for the supervisory classifications under this
Agreement shall be as follows: . . . Foreman . . . $1.00 above
Journeyman rate.
Lorac Construction Services, Inc. and Jeffrey H.
Ayers. Case 9–CA–30994
September 8, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On June 30, 1994, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaint alleged that the Respondent violated
Section 8(a)(1) of the Act by: (1) transferring em-
ployee Jeffrey Ayers on July 14, 1993,1 to a second
worksite because he engaged in protected concerted ac-
tivity; and (2) laying off Ayers that same day because
he would not accept the unlawful transfer. The judge
dismissed the complaint.
We do not agree with the judge’s dismissal of the
complaint allegation concerning Ayers’ July 14 trans-
fer. A brief review of the facts is necessary. The Re-
spondent contracted to maintain and repair equipment
at the Mead Paper Company’s Chillicothe, Ohio plant
(Mead), at the time of its annual shutdown. The Re-
spondent contracted with Millwright and Machinery
Erectors Local Union 207 (Union) for the work per-
formed at the site. The Union referred Ayers to begin
work on July 12.2 The Respondent assigned Ayers to
perform welding work on a large metal outdoor slash-
er-shredder. Ayers immediately began complaining to
the Respondent’s superintendent, Ron Eaches, and gen-
eral foreman, Bill Burkes, about the Respondent’s al-
legedly inadequate provision of supplies for the job.
He wanted to know why Gatorade and picnic tables
were not available for the employees. He maintained
that the oxygen supplies were insufficient. He also de-
manded that the Respondent provide gang boxes to se-
cure the employees’ tools.
The next day, July 13, Ayers continued to register
his displeasure. He noted the Respondent’s failure to
provide ice water continually at readily accessible loca-
tions and to provide employees with adequate supplies
of welding gloves, goggles and tips. Ayers also re-
peated his request that the Respondent provide gang
boxes to secure the employees’ tools. Finally, Ayers
complained to Eaches about the demotion of Foreman
Rocky Gibson after Ayers had discussed the demotion
with Union Steward Don Pitsbarger.
Initially, the Respondent tried to accommodate
Ayers’ complaints. The Respondent determined that
oxygen was available and provided a secure storage
room for the employees’ tools in the absence of suffi-
cient gang boxes. Some welding supplies were unavail-
able initially but the Respondent furnished more sup-
plies as the job progressed. The Respondent assigned
a laborer to look after the water containers and rein-
stated Gibson to his foreman position. The Respond-
ent, however, did not provide Gatorade and picnic ta-
bles. The Respondent told the employees that Mead
was responsible for the Gatorade and that the picnic ta-
bles were still bolted down in a trailer.
On Ayers’ third day on the job, July 14, Super-
intendent Eaches told Ayers that he was transferring
him to another location because he needed a welder
there. Eaches said that he was concerned about Ayers’
incessant complaining and hoped that Ayers would be
happier and satisfied at another site. Eaches testified
that he made the decision to transfer Ayers based on
the many complaints he had received from Ayers and
from no one else. Significantly, Eaches also testified
that Ayers told him that Eaches ‘‘didn’t want to go by
the contract rules and provide anything the contract
provided for.’’ Eaches drove Ayers to the new loca-
tion.
The judge found that some of Ayers’ complaints
touched on matters covered by the collective-bargain-
ing agreement.3 In the judge’s opinion, however, Ayers
was often seeking more than he was entitled to under
the contract, or there was no support for his position
in the contract. The judge noted that the Respondent
tried to satisfy Ayers and that Ayers engaged in no
1035LORAC CONSTRUCTION SERVICES
4 The judge sought to distinguish NLRB v. City Disposal Systems
Inc., 465 U.S. 822 (1984).
5 The judge also noted that the Respondent transferred Ayers be-
cause of his continuing complaints, without regard to whether those
complaints involved matters discussed in the contract.
6 Interboro Contractors, 157 NLRB 1295 (1966).
7 NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 840 (1984).
8 Id. at 836.
9 Id. at 840.
10 Even if some of Ayers’ complaints were not based on the con-
tract, the Respondent made no distinction between Ayers’ complaints
that honestly and reasonably invoked the contract and those that did
not.
11 Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
confrontation with the Respondent about any specific
provision of the contact. Indeed, the judge found no
nexus between Ayers’ reluctance to transfer to the new
worksite and a contractual right.4 Accordingly, the
judge found that the General Counsel failed to estab-
lish a prima facie case of unlawful transfer.5
We disagree with the judge’s interpretation of City
Disposal Systems, supra. First, the Supreme Court en-
dorsed the Board’s Interboro doctrine,6 which recog-
nizes that an employee’s
honest and reasonable invocation of a collectively
bargained right constitutes concerted activity, re-
gardless of whether the employee turns out to
have been correct in his belief that his right was
violated.7
Second, the Court recognized that although the prin-
cipal tool for invoking this right is the contract’s griev-
ance machinery, another legitimate tool is an employ-
ee’s simple protest to the employer.8 Third, the Court
concluded that, in voicing a complaint, the complain-
ing employee need not explicitly refer to the collec-
tive-bargaining agreement as the basis for the com-
plaint, but that
[a]s long as the nature of the employee’s com-
plaint 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 complain-
ing employee is engaged in the process of enforc-
ing the agreement.9
We find that Ayers’ complaints to the Respondent
fall within City Disposal’s definition of concerted ac-
tivity. We note that Ayers raised issues in his com-
plaints that were specifically addressed in the collec-
tive-bargaining agreement. Thus, the collective-bar-
gaining agreement required the Respondent to provide
all necessary equipment for burning and welding.
Ayers complained about inadequate supplies of oxygen
and welding gloves, tips and grinding disks. The col-
lective-bargaining agreement required the Respondent
to provide a secure room for storing the employees’
tools. Ayers complained about the lack of gang boxes
to store the employees’ tools safely. The collective-
bargaining agreement required the Respondent to pro-
vide drinking water and Ayers complained that it was
not readily accessible and always available. The collec-
tive-bargaining agreement required the Respondent to
appoint a foreman with extra pay for every six jour-
neymen and two apprentices and Ayers complained
about the Respondent’s demotion of Rocky Gibson. Fi-
nally, and significantly, we note that Superintendent
Ron Eaches admitted that Ayers invoked the terms of
the collective-bargaining agreement.10
Under City Disposal, Ayers did not have to be cor-
rect in his position that there was a breach of the col-
lective-bargaining agreement; nor was it necessary for
him to file a formal grievance. Indeed, Ayers did not
even have to invoke a specific provision of the agree-
ment in voicing his complaints to the Respondent.
Ayers merely had to honestly and reasonably invoke
collectively bargained rights. This is what Ayers did,
and the Respondent transferred him to a new work lo-
cation for that reason. In this latter regard, we note
Eaches’ testimony that he transferred Ayers because of
complaints and that the complaints were contractual.
Accordingly, we find that the General Counsel estab-
lished a prima facie case of unlawful transfer, and the
Respondent failed to rebut the General Counsel’s
case.11 We therefore find that the Respondent’s trans-
fer of Ayers from the slasher-shredder location to a
new worksite on July 14 violated Section 8(a)(1) of the
Act.
On the other hand, we agree that the Respondent did
not violate the Act when it laid off Ayers on July 14.
Ayers repeatedly testified that, at all critical times on
July 14, he was refusing to work rather than refusing
to accept a transfer. Thus, Ayers testified that he ini-
tially told employees at the second worksite that he
could not weld because of a recent injury. Ayers fur-
ther testified that he then told Superintendent Ron
Eaches the same thing when Ayers returned to the lo-
cation from which he had been transferred. Next,
Ayers told Union Steward Don Pitsbarger that he
could not weld and Pitsbarger spoke to Eaches on
Ayers’ behalf, repeating Ayers’ alleged inability to
weld. Finally, when Eaches offered Ayers the job of
‘‘fire watch’’ back at the work site to which he had
been transferred, Ayers refused the fire watch job.
Ayers own testimony established that throughout this
sequence of events, he was refusing to perform weld-
ing work because of his physical limitations, not that
he was refusing to accept the transfer. The record es-
tablishes that welding was an integral part of the slash-
er job, and we therefore conclude that the Respondent
did not discriminate against Ayers simply because it
offered him an alternative assignment as a fire watch,
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.’’
at the same rate of pay. Because he also refused that
work, we agree with the judge that the Respondent did
not violate Section 8(a)(1) of the Act with respect to
Ayers’ July 14 layoff.
REMEDY
In order to remedy the violation found, we will re-
quire the Respondent to cease transferring employees
because they engage in protected concerted activity.
We will also order the related affirmative remedies.
We will order no affirmative remedies, however, with
respect to Jeffrey Ayers. We note that had Ayers re-
mained at the slasher-shredder on July 14, the Re-
spondent would still have laid off Ayers. On July 14
Ayers refused to weld. Ayers also refused to fire
watch, the job the Respondent offered him as a sub-
stitute. As indicated above, Ayers refused to work
without qualification, and the Respondent lawfully laid
off Ayers. Accordingly, there is no purpose to requir-
ing the Respondent to restore Ayers to the position he
would have been in absent the unlawful transfer. The
Respondent would have lawfully laid off Ayers shortly
after this event anyway because Ayers refused to work.
ORDER
The National Labor Relations Board orders that the
Respondent, Lorac Construction Services, Inc., Chil-
licothe, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Transferring or otherwise disciplining employees
because they exercise their right to engage in concerted
activities as guaranteed by Section 7 of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Chillicothe, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint allega-
tion not specifically found is dismissed.
MEMBER TRUESDALE, dissenting in part.
Contrary to my colleagues, I agree with the judge
that the Respondent’s transfer of employee Jeffrey
Ayers from his job on the slasher machine to another
job at the Mead worksite did not constitute a violation
of Section 8(a)(1). Specifically, I find that the General
Counsel failed to demonstrate that the transfer was in
retaliation for protected concerted activity by Ayers.
Ayers was referred to the jobsite on the morning of
July 12, 1993, and almost immediately began express-
ing his dissatisfaction. Michael Sturgill testified that
when Sturgill arrived in the parking lot that morning,
he heard Ayers comment, ‘‘That’s a hell of a place to
park a truck.’’ At a safety meeting before work began
that morning, Ayers kept snapping his fingers and say-
ing that he did not want the assignment to last more
than 8 days, so that he would not lose his place on the
union referral list.
Ayers’ complaints persisted after his work on the
slasher machine was underway. He complained that an
oxygen bottle was empty, and at first contended that
a second bottle was empty when it clearly was not. He
protested when promised Gatorade and picnic tables
were not provided at lunchtime. Superintendent Eaches
explained that the customer that owned the jobsite
would not provide the Gatorade and that the tables
were bolted down in a trailer. Ayers reminded Eaches
that the Respondent was required to provide a gangbox
for the employees’ tools and complained that the box
pointed out by Eaches was too full with the Respond-
ent’s tools. Eaches left and returned 10 minutes later
with a forklift carrying an additional gangbox. Ayers
protested that the Respondent did not provide torch
tips needed by the employees, and Eaches replied that
he would take care of it in the morning.
Ayers’ second day on the job was marked by a simi-
lar series of complaints. Upon reporting for work,
Ayers complained that the water jug was empty. The
judge, however, credited Eaches’ testimony that the
Respondent maintained three containers of water on
the slasher, and that a laborer made constant runs to
supply water and tools that day. Ayers testified that,
even though water was available, he complained be-
cause there was no water on either the first or second
level of the slasher. After lunch, Ayers protested be-
cause another employee had been reassigned from
foreman to journeyman, which Ayers believed to be
out of compliance with the collective-bargaining agree-
ment. When Ayers informed Eaches of the reassign-
ment, the employee was restored to the foreman posi-
tion.
1037LORAC CONSTRUCTION SERVICES
On the morning of July 14, Ayers informed the
union steward, a laborer, and Eaches in turn that the
employees needed welding gloves. Eaches told him
that he was a man short on the other side of the work-
site and that he needed Ayers to go there to do some
welding. Ayers resisted, stating that he liked it on the
slasher, but Eaches insisted that he needed Ayers at the
other location. The judge credited Eaches’ testimony
that he was overstaffed on the slasher that day, that he
needed a welder at the other location and knew that
Ayers could weld, that the workload on the slasher
varied, and that several employees were transferred
among the six locations at the Mead site during the
Respondent’s work there.
I agree with my colleagues that an ‘‘honest and rea-
sonable invocation of a collectively bargained right
constitutes concerted activity,’’ even if the employee’s
assertion turns out to be incorrect. NLRB v. City Dis-
posal Systems, Inc., 465 U.S. 822, 840 (1984). I fur-
ther agree that some of the subjects raised in Ayers’
complaints, notably the provision of welding tools and
water, the storage of tools, and the foreman position,
are addressed in the collective-bargaining agreement.
Ayers’ unrelenting complaints, however, go well be-
yond the ‘‘honest and reasonable invocation’’ of con-
tract rights. For example, Ayers concedes that the Re-
spondent provided water at the slasher, as it is obli-
gated to do under the contract. Nevertheless, he com-
plained because the water was not on the first or sec-
ond level of the slasher. In addition, he complained
that an oxygen bottle was empty when it obviously
was not. Such complaints exceed the bounds of any
reasonable perception of contract rights, and reflect in-
stead Ayers’ personal whims and general discontent
with his assignment to the Mead site. As noted above,
Ayers displayed his unhappiness from the time of his
arrival at the job, and emphasized that he did not want
to work there for more than 8 days.
Some complaints registered by Ayers, such as his
complaint regarding the foreman position, appear to be
more reasonably based on perceived contract rights.
Even conceding that these protests constitute protected
concerted activity, however, I do not find that the
record supports the General Counsel’s contention that
the Respondent’s transfer of Ayers was in retaliation
for that activity. Although Ayers’ complaints would
have tested the endurance of even the most accommo-
dating of employers, the record is replete with evi-
dence of the Respondent’s attempts to satisfy his de-
mands by conscientiously furnishing water, tools, and
an additional gangbox, and by immediately restoring
Ayers’ coworker to his foreman position. I find that
these efforts far outweigh any possibility of retaliation
that my colleagues may infer from Eaches’ statement
that he transferred Ayers because of his complaints on
the slasher. Instead, I find that Eaches reached the in-
escapable conclusion that Ayers was unhappy on the
slasher, and that when the slasher was overstaffed and
a welder was needed at the other location, he reason-
ably decided to transfer Ayers. On this basis, I con-
clude that the General Counsel has failed to establish
a prima facie case that Ayers’ transfer was in retalia-
tion for protected concerted activities in violation of
Section 8(a)(1).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT transfer or otherwise discipline you
because you exercise 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 guaranteed you by Section 7 of the Act.
LORAC CONSTRUCTION SERVICES, INC.
Patricia Rossner Fry, Esq., for the General Counsel.
Edward R. Bunstine, Esq., of Chillicothe, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Chillicothe, Ohio, on April 14, 1994.
The complaint was filed on September 17, 1993. The charge
was filed on August 5, 1993.
The parties were represented and afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to
introduce evidence. Respondent and General Counsel filed
briefs. Upon consideration of the entire record and the briefs,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent amended its answer during the hearing to
admit, among other things, that during a representative 12-
month period it has been a corporation and it has been a
building and construction contractor in Chillicothe, Ohio; it
performed services valued in excess of $50,000 for firms lo-
cated in Ohio which, in turn, sold and shipped goods valued
in excess of $50,000 from their Ohio facilities directly to
points outside Ohio; and that it has been engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In view of the full record I find that Respondent is and
has been at material times, an employer engaged in com-
merce as defined in the Act.
II. LABOR ORGANIZATION AND SUPERVISORY
ALLEGATIONS
Respondent admitted the supervisory allegations in the
complaint. It admitted that at material times Millwright Local
Union 1519, affiliated with the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO (Union) has been
a labor organization within the meaning of Section 2(5) of
the Act. It admitted that at material times it and the Union
have been parties to a collective-bargaining agreement cover-
ing certain employees of Respondent at the Mead Paper Plant
in Chillicothe, Ohio.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
The complaint alleged that Respondent and Millwright
Local Union 1519, affiliated with the United Brotherhood of
Carpenters and Joiners of America, AFL–CIO (Union) have
been parties to a collective-bargaining agreement at material
times. It was alleged that the Charging Party (Ayers) com-
plained to Respondent about matters covered by that collec-
tive-bargaining agreement and because of those complaints
Respondent told Ayers that he was being transferred. When
Ayers refused to be transferred Respondent allegedly dis-
charged him on July 14, 1993.
Respondent admitted that it told its employee Jeffrey H.
Ayers on July 14, 1993, that he was being transferred to an-
other area of the jobsite and that it discharged Ayers on that
same date when he refused to accept the job transfer.
Union Business Agent Gerald Piatt testified that Respond-
ent is party to some four different collective-bargaining
agreements including the local agreement with Local 1519.
Ayers testified that he is a member of the Union and he
holds the local office of conductor. On three occasions in the
past he served as union steward on various jobs.
Ayers was referred to Respondent’s job on July 12, 1993.
After reporting on the job, he was assigned to the slasher
machine at the Mead Paper Plant.
Superintendent Ron Eaches testified that Ayers was trans-
ferred on July 14 because he was unhappy with his job on
the slasher. Michael Sturgill testified that he worked for Re-
spondent on the Mead job. When he arrived in the parking
lot on July 12 he heard Jeffrey Ayers comment ‘‘that’s a hell
of a place to park a truck.’’
Before work on the July 12, which was Ayers’ first morn-
ing with Respondent, the employees attended a safety meet-
ing. Admitted Supervisors Ron Eaches and Bill Burks were
present along with Union Steward Don Pitsbarger. Safety
glasses, hard hats, and other safety matters were discussed.
Ayers testified that Ron Eaches told them that they would
have Gatorade and picnic tables at lunch.
Superintendent Ron Eaches testified that the job Respond-
ent was working at Mead was a shut down. Mead had shut
down its operation until Respondent completed the job. It
was important to finish that job as quickly as possible in
order to permit Mead to resume their work.
Eaches testified they held a safety meeting early on the
first day of the job. Jeffrey Ayers kept snapping his fingers
and saying that he did not want any more than 10 days on
that job. On cross-examination Eaches admitted that he was
wrong that Ayers had actually said he did not want to stay
on the job more than 8 days rather than 10.
Ayers was asked if he didn’t comment in the safety meet-
ing on Monday, that ‘‘all I want is eight days, no more than
eight days, I don’t want to lose my place on the list. I don’t
want to be here.’’ He admitted that he did say that all he
wanted was 8 days but he did not recall making a statement
that he did not want to be there. Ayers admitted that he com-
plained they had a bad come-along on the job that Monday
morning. He did not recall complaining that he wanted Re-
spondent to furnish him with tinted safety glasses. He admit-
ted complaining that there wasn’t any oxygen in the bottle.
Eaches recalled that Ayers complained about the oxygen
on July 12. Ayers took the cap off one oxygen bottle and
it was empty. Ayers then cracked the valve on second bottle
and Eaches testified that the sound was loud evidencing plen-
ty of oxygen but Ayers yelled out there is no oxygen. Eaches
responded, ‘‘Jeff, you know there’s air in that bottle.’’ Ayers
took the bottle, hooked it up, and continued to work.
The employees did not have Gatorade or picnic tables at
lunch. Ayers asked Ron Eaches about that. Eaches replied
that Mead would not buy the Gatorade and the picnic tables
were bolted down in his trailer. Ayers also asked Eaches
about a gangbox and Eaches told him they would have
gangboxes at the end of the day.
Around 4 p.m. that day Ayers again asked Eaches about
gangboxes and Eaches pointed to one and said they could
use that one. Ayers told Eaches that box was filled with the
Company’s tools. Ayers pointed out that the second shift
would use the tools in that box. Eaches told him to go ahead
and use the box and asked if he was afraid that his buddies
on the second shift would steal his tools. Ayers complained
that was not the point, that they had tools stolen. Eaches told
him to use the box and if he lost tools, Respondent would
replace them. Ayers told Eaches that they needed some torch
tips and the Company would not get those tips. Eaches re-
plied they did not have any. Eaches told Ayers that he would
take care of the problem in the morning. Ayers told Eaches
that it was in the contract that he was to provide a gangbox
and to lock the employees’ tools. Eaches walked off and re-
turned in about 10 minutes with a gangbox on a forklift.
Everyone, but about four or five guys, was able to get
their tools in that box. Those four or five had to place their
tools on the truck.
Ron Eaches admitted there weren’t enough gangboxes but
after he saw how many employees brought their tools he was
making provisions to get gangboxes.
General Foreman Burks admitted there were not enough
gangboxes and the employees were told their tools could be
locked up in the fab shop.
General Foreman Bill Burks testified that he has been in
the Union for 29 years. He has known Ayers for about 12
years. He admitted that Ayers complained to him about
grinding disks. Burks walked over to the gangbox and point-
ed out a package of 7-inch grinding disks and Ayers picked
up one of those. He recalled that Ayers complained about
oxygen and Ayers was there when they checked and found
that one of the three bottles of oxygen was full.
On reporting on the following morning, July 13, at 7 a.m.,
Ayers complained to either General Foreman Burks or Fore-
man Rocky Gibson that their water jug was empty. After-
ward the water jug was picked up by a laborer.
1039LORAC CONSTRUCTION SERVICES
When the jug had not returned after an hour or two went
by, Ayers mentioned that to General Foreman Burks. Burks
told him there was a water jug over near the steps but that
jug was empty, according to Ayers. Ayers testified that to
take off his gear and climb down to get water was inconven-
ient. On cross-examination Ayers estimated the distance
down was some 20–25 feet. Ayers pointed out that the jug
near the steps was empty and Burks pointed out another jug.
Ayers told Burks that was not their jug but that their jug had
been picked up. Burks argued that the jug he pointed out was
theirs. When Ayers pointed out they needed a jug up top
Burks told him to get the jug up there the best way he could.
Ayers had a crane lift the water jug up to their work area
on top of the slasher machine.
On Tuesday, July 13, according to Superintendent Eaches,
Ayers complained about lack of water. Eaches testified there
were three containers of water on the slasher and that was
more than required under the collective-bargaining contract.
Eaches testified that they had assigned a laborer, Michael
Sturgill, to supply water and tools on the job. Sturgill made
constant runs all that day.
Michael Sturgill maintained three water containers at the
slasher job. He testified that he kept those containers full.
Sturgill denied that he ever found that all three containers
were empty. He also ran tools for that job including welding
gloves. Sturgill testified that there were always sufficient
welding gloves on the site. Sturgill also testified there were
several gangboxes at that site.
Ayers admitted there were two containers of ice water on
Tuesday but he complained because there wasn’t any water
on either the first or the second level on the slasher.
After lunch Rocky Gibson told Ayers that he had been cut
back from foreman to journeyman. Ayers understood that the
contract required a foreman for eight workers. Ayers asked
Steward Don Pitsbarger about Gibson being cut back.
Later when Ron Eaches came up to where Ayers was
working Ayers asked Eaches what was his job title. Eaches
told him superintendent. Ayers asked about Bill Burks’ job
and Eaches replied, ‘‘general foreman.’’ Ayers asked about
Rocky and Eaches replied that he was the foreman. Ayers re-
plied that Rocky wasn’t the foreman any more because Re-
spondent could not afford to pay him foreman wages. Eaches
replied that was not right and Ayers told him that he needed
to get with Burks and Rocky and find out what was going
on. Eaches left with Rocky Gibson and when Gibson re-
turned 15 or 20 minutes later he told Ayers that he again was
foreman.
Ayers testified that at noon on July 13 Eaches told the em-
ployees that he was short men and did not know if they
would get the job done with the men he had. Ayers told the
employees that Eaches was trying to say they were not going
to be able to get that job done but they would if Respondent
supplied them with tools and welding gloves.
On the next morning, July 14, Ayers mentioned to Union
Steward Pitsbarger they needed welding gloves. Ayers also
told a laborer they needed gloves and later, when at the job,
he told Eaches they needed gloves. Eaches replied, ‘‘yeah,
they’re on the way.’’ Eaches then told Ayers that he needed
for Ayers to go over to the other side and do some welding
for him—that he was a man short. Ayers told Eaches that
he liked it there but Eaches told him no, he needed him over
there. Eaches drove Ayers over to the other job. There were
two men on that job.
After Eaches left, Ayers told the two employees that he
was not going to be able to work because he had flash burn
from the day before. Ayers told the men, ‘‘I wanted to come
over and to tell you guys that I wasn’t going to be able to
weld and I’m going to tell Ron so he can get somebody over
here that can weld and do this job for him, ‘‘cause he said
he needed a welder.’’
Ron Eaches recalled that he reassigned Ayers to another
job on Wednesday because he was over staffed on the slash-
er. That job was winding down. Eaches testified that he had
gone to school with Ayers and knew that Ayers could weld.
He assigned Ayers to go to another job at Mead that needed
a welder. Eaches testified that Ayers was not replaced on the
slasher. On cross-examination Eaches testified that he trans-
ferred several employees during the course of that job at
Mead. The job on the slasher varied and would be down a
man or two depending on the demands of the job. Eaches re-
called there were about six different locations at Mead they
were working at that time.
Ayers testified that he left his assigned job and walked
over toward the slasher looking for Ron Eaches. Ayers testi-
fied that about a half hour after he arrived back at the slash-
er, Eaches pulled up. Ayers told Eaches that he had a flash
burn and was not going to be able to weld. Eaches replied
that he would just go and get Ayers’ money. Ayers asked
if this was going to be a layoff or was he being fired. Eaches
replied that he was going to lay off Ayers. Ayers said, ‘‘Ron,
I didn’t say I couldn’t work.’’ Ayers said that he just
couldn’t weld for a couple of days to let his eyes heal.
Eaches got in his truck and drove off. Ayers looked for and
found Union Steward Pitsbarger.
Eaches testified that he returned to the slasher on July 14
and Ayers ‘‘was standing at the gangbox twiddling a welding
rod.’’ When Eaches walked past Ayers, Ayers said, ‘‘hey
man, I can’t weld.’’ Eaches questioned Ayers and Ayers told
him he had a flash burn.
Eaches testified that he asked, ‘‘Jeff, why didn’t you ex-
plain that to me before I had you get your welding hood
and’’ go on the job. Ayers replied that he forgot. Eaches tes-
tified that all the jobs on the slasher were assigned and had
started. He suggested that Ayers could fire watch without a
cut in pay but Ayers refused to accept that job. By then the
job had shut down and about 20 men were standing there
with the job completely stopped. Eaches asked the other men
if it was fair for Ayers to fire watch and some of the men
told Ayers to go back to work but Ayers said, ‘‘No, I can’t
do it.’’ The other men then started up the welding machines
and went back to work.
On cross-examination Ayers admitted that he had not re-
ported the flash burn on Tuesday, the day it occurred, and
he did not report it to anyone on Wednesday until he walked
away from his new assignment. He did not report to super-
vision until he told Eaches of his flash burn after returning
to the slasher.
After finding Pitsbarger and again returning to the slasher,
Ayers went to tell his two riders that they would have to find
another ride home. When he again returned to the slasher,
Don Pitsbarger was talking with General Foreman Burks.
The other employees stopped working and said that if Eaches
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was going to write 1 check he would have to write 20.
Eaches pulled up 10 minutes later.
Ayers testified that Eaches went over and talked with
Burks and Pitsbarger. Ayers was called over. Pitsbarger
asked Eaches if he was getting Ayers’ money and Eaches re-
plied that he was because Ayers would not work. Pitsbarger
replied that Ayers did not say he could not work but that he
couldn’t weld for a couple of days while his eyes healed.
Eaches asked Ayers how he got the flash burn. Ayers replied
that he was assisting welding down plates the prior day.
Eaches told Ayers that his eyes weren’t red, how could he
have flash burn. Ayers told Eaches that he put potato peals
on his eyes the night before and that pulled the pain out.
Ayers proposed to Eaches that he put one of the other weld-
ers on the other job and let Ayers stay there and work and
everything would be fine. Eaches said no and Ayers asked
Eaches if he was just trying to get Ayers away from that
area. Eaches replied that was right. That he wanted Ayers out
of there. Eaches then said that everyone knows that fire
watch is the easiest job here. The fire watch would check
that nothing caught fire while there was welding overhead.
Eaches told Ayers to go over and fire watch.
Ayers testified that he commented to Eaches, ‘‘Ron, I said,
you didn’t ask—you didn’t say that you needed a fire watch.
You said that you needed a welder. I said, you said you were
short of men and you needed a welder to get this job done
and now you’re saying that you just want a fire watch. I
said, you just saying anything now.’’
Eaches replied that was right that he just wanted Ayers
over there to fire watch and if Ayers did not fire watch he
would get his money. Ayers told Eaches that he was not
there to fire watch. One of the employees said, ‘‘Jeff why
don’t you just go ahead, I know it ain’t right.’’ Ayers re-
plied, ‘‘No, I just can’t do that.’’ Ayers told the guys to go
ahead and go back to work.
Eaches then told Ayers that he would have to let him go
if he didn’t go to work. Ayers told him to get his money.
On cross-examination Eaches agreed that Ayers did tell him
that he would work on the slasher. He also admitted that he
put Ayers on the other job for the benefit of everybody. He
thought Ayers would be happier on the other job. Eaches
said that he needed a welder on the other job and because
of the way the complaints were coming he felt Ayers was
unhappy and that he may do better on the other job. Eaches
also admitted that Ayers told him that ‘‘he didn’t like the
way things were being run and that you [Eaches] didn’t want
to go by the contract rules and provide everything the con-
tract provided for.’’
Eaches brought Ayers’ check to him and told Ayers that
he was not going to be a blank about it but he was going
to terminate Ayers’ employment.
Ayers admitted on cross-examination that he would have
received the same pay if he had taken the fire watch assign-
ment.
General Foreman Burks testified regarding the incident on
July 14. He recalled that Ron Eaches told Ayers to go to an-
other job where they needed a welder. Ayers went to the job
but returned to the slasher. Burks called Eaches on the radio
and told him that Ayers was back at the slasher. Burks con-
firmed Eaches’ recollection of the events that followed. He
recalled Ayers told Eaches that he forgot to tell Eaches that
he had a flash burn. Even though Eaches agreed to have
Ayers fire watch, Ayers refused to accept the job. No one
disagreed when Eaches said there was no easier job than fire
watch.
Also on cross-examination, Ayers admitted that he wrote
L-O-R-A-T-S in chalk on the slasher machine. He also ad-
mitted that when asked he denied that he had written Lorats
on the slasher. Ayers admitted that after Eaches said he was
going to transfer Ayers, he commented that he was going to
work on the slasher job or he wasn’t going to work at all.
Ron Eaches admitted that while on the job, Ayers com-
plained about many things. Eaches denied that he transferred
Ayers because of Ayers’ union activity.
A. Discussion
Undisputed testimony shows that from his employment on
July 12, 1993, Jeffrey Ayers complained about many matters
regarding his job. For example Ayers complained about his
being referred to Respondent and that he did not want to stay
on the job over 8 days; he complained about water and its
position away from some of the employees’ work areas.
Ayers complained about the employees not being given
Gatorade and picnic tables for lunch. Ayers complained
about Respondent’s reduction of Rocky Gibson from fore-
man. Ayers complained about Respondent not having
gangboxes available for the employees. Ayers complained
that there were not enough welding gloves.
I was particularly impressed with the demeanor of Super-
intendent Ron Eaches. Eaches, General Foreman Burks, and
all employees were referred to Respondent by the Union.
Eaches testified under direct examination that Ayers origi-
nally said he did not want to remain on that job longer than
10 days. On cross-examination Eaches recalled that it was 8
rather than 10 days. General Counsel contended that mistake
evidenced that Eaches was untruthful. I disagree, it appeared
to me that Eaches was nervous at the beginning of his testi-
mony and his testimony regarding the 10 days’ statements by
Ayers, was early in his testimony. After considering the mat-
ter, Eaches corrected his early error. I credit the testimony
of Ron Eaches and, to the extent there are conflicts between
Eaches and witnesses for General Counsel, I credit the testi-
mony of Eaches. I am convinced that Eaches was truthful in
his testimony including his testimony as to his reasons for
transferring and discharging Jeffrey Ayers on July 14, 1993.
B. Findings
As to the alleged violation of Section 8(a)(1) by transfer-
ring and discharging Jeffrey Ayers because of his protected
activities, I shall first examine whether General Counsel
proved a prima facie case. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
C. The Layoff
Under the conditions outlined in Electromedics, 299
NLRB 928 (1990), in order for General Counsel to establish
a prima facie case it is necessary to prove that Ayers was
laid off due to protected activities.
General Counsel argued that Ayers was first transferred
and the transfer was motivated by Ayers’ protected activities.
As shown herein, Ayers complained to Respondent regarding
1041LORAC CONSTRUCTION SERVICES
several matters during the short time he worked for Respond-
ent. The issues included in some of Ayers’ complaints were
mentioned in the collective-bargaining agreement. Those fac-
tors led General Counsel to argue that since Respondent
transferred Ayers to another job location on July 14 because
of Ayers’ complaints, it proved a prima facie case of dis-
criminatory transfer.
General Counsel went on to argue that Ayers was termi-
nated because he would not accept an illegal transfer and, for
that reason, Ayers’ layoff was illegal.
I find that the record evidence illustrated that Ayers’ was
not laid off because he refused to accept an illegal transfer.
General Counsel’s only witness to the circumstances sur-
rounding the layoff was Jeffrey Ayers. Ayers testified that
after being transferred to another location at the Mead plant,
he recalled that he had suffered a flash burn the day before.
For that reason Ayers left his assignment and returned to the
slasher where he told Superintendent Eaches that he could
not weld because of flash burn.
At that point Eaches left to get Ayers’ money in order to
terminate Ayers. As shown above, however, when Eaches re-
turned he was persuaded to offer Ayers a nonwelding posi-
tion in view of Ayers’ assertion that he could not weld be-
cause of flash burns. Eaches offered Ayers the job of fire
watching. Despite Ayers’ assertion that he was not refusing
to work but was refusing to weld, he rejected Eaches’ offer
of a job fire watching.
In view of the above evidence it is apparent that Ayers’
alleged protected activities had nothing to do with his layoff.
Before July 14 Ayers had worked as a welder on the slasher.
On July 14 Ayers told Superintendent Eaches that he could
not weld. Obviously, if Ayers was telling the truth, he would
have been unable to weld anywhere including on the slasher.
All the evidence in the record shows that Ayers was laid off
when he refused to accept the job of fire watch. That refusal
followed Ayers telling Eaches that he could not weld on July
14 because of flash burn he received the day before July 14
and Eaches’ agreement to honor Ayers request and offer
Ayers a job other than welding.
Regardless of whether Ayers was truthful, the record
shows that he told Respondent that he could not weld be-
cause of flash burn. Respondent’s superintendent took Ayers
at his word and offered him the job of fire watch. It was be-
cause of Ayers’ refusal to accept the job of fire watch that
he was laid off.
The record shows that Ayers was not laid off because he
refused to accept his July 14 transfer. Ayers did refuse to ac-
cept the transfer but not because it was an illegal transfer.
Instead Ayers told Respondent that he could not weld. He
had been welding before July 14 and his contention that he
could not weld meant that he could not weld at his new as-
signment and his old assignment on the slasher. Superintend-
ent Eaches agreed to give Ayers a job other than welding but
when that job was offered, Ayers turned it down.
In view of the above, I find that General Counsel failed
to prove a prima facie case in support of the contention that
Ayers was laid off because of his protected activities.
Moreover, Respondent proved that Ayers would have been
terminated in the absence of his protected activities. The evi-
dence illustrated that Ayers told Superintendent Eaches that
he could not weld on July 14 because of flash burns he re-
ceived on July 13. Eventually Eaches agreed to assign Ayers
to a nonwelding job. Because Ayers refused to perform that
job, the job of fire watch, he was discharged.
General Counsel argued that it was because of Ayers’
transfer on July 14 that he was eventually terminated. I find
that was not the case. Ayers told Eaches that he was unable
to weld because of flash burn. Both on his job on the slasher
and on his new assignment, Ayers was expected to weld. Re-
gardless of the transfer, Ayers would have had the same
problem, i.e., he could not weld because of flash burn. The
transfer had no impact on Ayers refusal to weld. It was be-
cause Ayers refused to perform either his welding assign-
ment or the job of fire watch which did not involve welding,
that he was terminated. Ayers’ refusal to work on July 14
had nothing to do with contractual rights or with any pro-
tected activity. I find that Ayers would have been terminated
in the absence of any protected activities. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
D. The July 14 Transfer
General Counsel argued that during his employment on
July 12, 13, and 14 Ayers complained; some of those com-
plaints were arguably over matters covered in the collective-
bargaining agreement; and Respondent transferred Ayers be-
cause of his complaints.
The record established that Ayers did complain extensively
to Respondent about numerous matters on the job. Respond-
ent was aware of those complaints which were made to ad-
mitted supervisors.
General Counsel cited, among other cases, NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), for the proposition
that an employee who is attempting to enforce contract pro-
visions under the Act is engaged in protected activity.
Some of the Ayers’ complaints did touch upon matters
covered by the collective-bargaining agreement. Unlike the
situation in City Disposal, however, it was not shown that
Ayers in disagreement with Respondent, tried to enforce one
or more provisions of the collective-bargaining agreement.
The records shows that Ayers did say that Eaches was failing
to go by the terms of the contract. There was, however, no
showing that was a fact. In truth, it was shown that Ayers
was often mistaken as to what the contract provided. For ex-
ample, the agreement provides that the employer must pro-
vide a locked room for tool storage and the employer must
provide drinking water. Ayers argued that Respondent was
obligated under the contract to provide gangboxes and water
near each work station. The contract did not support Ayers’
positions as to those matters.
As to other complaints, several did not involve matters
covered in the bargaining agreement. For example, there was
oxygen available even though some of the oxygen bottles
may have been empty. Respondent failed to provide
Gatorade and picnic tables. Ayers testified that it was incon-
venient to stop work and walk to where water was located
during some of his 2-plus days on the job.
The record evidence illustrated that in his 2-plus days on
the job, Ayers continually complained. Some of the matters
complained about touched on matters included in the collec-
tive-bargaining agreement and other complaints did not touch
on matters included in the collective-bargaining agreement.
Respondent’s superintendent decided to move Ayers to an-
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other location because of Ayers’ continuing complaints. Su-
perintendent Eaches testified that he moved Ayers because it
was apparent Ayers was not happy at the slasher job. The
question here is did Respondent by moving Ayers, violate
Section 8(a)(1) of the Act.
Is an employee protected in complaining, if some of his
actions include complaints about matters mentioned in the
collective-bargaining agreement and other complaints are
about matters that are not mentioned in the collective-bar-
gaining agreement. Cf. NLRB v. City Disposal Systems, 465
U.S. 989 (1984).
In NLRB v. City Disposal Systems, there was a direct rela-
tionship between the employee’s refusal to drive and the ap-
plicable collective-bargaining agreement. The agreement
specified that unit employees should not be required to drive
unsafe vehicles. And the employee was required to drive a
vehicle he felt was unsafe. Here the record shows no direct
connection between Ayers’ reluctance to transfer to another
Mead location and the collective-bargaining agreement.
Moreover, there was no connection between Ayers’ refusal
to work at the new location and the collective-bargaining
agreement.
General Counsel cited Spann Maintenance Co., 289 NLRB
915 (1988), in arguing that an employee does not lose pro-
tection if the employee’s interpretation of the contract is in-
correct. In Spann Maintenance Co., the administrative law
judge found that the employee made a reasonable and honest
attempt to persuade a supervisor to honor her job seniority
under the collective-bargaining agreement.
Here the evidence failed to provide an issue of contract in-
terpretation as in Spann Maintenance. The record shows
nothing more than a general broad claim by Ayers that Re-
spondent was not following the contract. The question never
did reach the issue of whether Ayers was wrong about the
interpretation of a provision or provisions of the contract. In
those complaints that touched on matters mentioned in the
contract, as well as those complaints which do not appear to
involve the contract, Respondent consistently tried to satisfy
Ayers. There never was a confrontation regarding any inter-
pretation of the contract.
There was no showing that Ayers based his actions on
matters which were protected by the contract and there was
no showing that Respondent transferred Ayers to the other
job location because Ayers had or was complaining about
matters protected in the collective-bargaining contract.
As shown above I credit the testimony of Superintendent
Ron Eaches. Eaches admitted that from the time Jeffrey
Ayers arrived, Ayers expressed displeasure with his assign-
ment to Respondent’s job at Mead. As shown above there
was testimony that from his arrival in the parking area,
Ayers voiced displeasure at being on the job. Superintendent
Eaches testified that during the safety meeting at the begin-
ning of the job, Ayers repeatedly commented that he did not
want more than 8 days on the job. If Ayers accepted an as-
signment and worked in excess of 8 days he would lose his
position on the Union’s referral roster. After the safety meet-
ing the employees were assigned to jobs at various locations
at Mead. Ayers was assigned to a job on the slasher. Ayers
complained about various matters including water, Gatorade
and picnic tables for lunch, oxygen bottles, gloves, and a
possible demotion of the foreman.
Ayers continued to complain about various matters, on
July 12, 13, and 14, 1993.
At the beginning of the workday on July 14, Eaches as-
signed Ayers to another job location at Mead. Ayers rode
over to his new job location with Superintendent Eaches.
Eaches admitted that he felt Ayers was unhappy on the
slasher. There was no showing of animus toward union ac-
tivities.
In order for General Counsel to establish a prima facie
case it is necessary to prove that Ayers was transferred due
to protected activities. Electromedics, 299 NLRB 928 (1990).
General Counsel alleged that Respondent transferred Jef-
frey Ayers because Ayers engaged in complaints about mat-
ters covered in the collective-bargaining agreement and in
order to discourage employees from engaging in similar or
other concerted activities.
The evidence showed that Ayers was not well versed as
to the collective-bargaining agreement. For example Ayers
argued to Respondent’s supervisors that the contract required
Respondent to have gangboxes available for the employees.
The contract, however, does not require gangboxes. Instead
it requires that the employer must have a locked room avail-
able for the storage of employees’ tools. (See collective-bar-
gaining agreement, art. IV, sec. H.) Nevertheless, Respondent
tried to satisfy Ayers by bringing in an extra gangbox.
The record evidence does not show that it was any particu-
lar complaint or complaints by Ayers that resulted in his July
14 transfer. The testimony of Superintendent Eaches shows
that it was the total of Ayers’ complaints that convinced
Eaches that Ayers might be happier at another location.
Additionally, there was no showing that Ayers resisted the
July 14 transfer in an effort to protect contractual rights or
for any reason regarding protected action. As shown above,
Ayers testified that he did not accept the transfer because he
had received flash burns on the previous day.
From General Counsel’s position it appears that at most,
the record shows that Ayers complained to Respondent about
many things and some of those matters were discussed in the
collective-bargaining agreement.
Ayers objected to his transfer but when he got around to
telling Respondent’s supervisors why he had refused to work
at the new location, his grounds had nothing to do with his
earlier complaints. Moreover, after hearing Ayers’ grounds
for refusing to work at the new location, Respondent as it
had in other complaints by Ayers, tried to satisfy Ayers by
assigning him to a job that did not involve welding.
Unlike NLRB v. City Disposal Systems, supra, where the
employer and the alleged discriminatee were in disagreement
over an issue covered in the collective-bargaining contract,
here, there is no evidence to show that Respondent trans-
ferred Ayers because of any specific complaint or com-
plaints. Nor was there a showing that Ayers complained
about anything which may have constituted a breach of the
terms of the collective-bargaining agreement. The record il-
lustrates, and I find, that Ayers refused to accept the transfer
because of matters which are not protected. See Nicola’s,
299 NLRB 860 (1990).
In NLRB v. City Disposal Systems, supra, there was no
doubt as to the reason for the discharge. The employee re-
fused to drive a truck he felt was unsafe and the collective-
bargaining agreement provided that the employer shall not
require employees to operate vehicles that are not in safe op-
1043LORAC CONSTRUCTION SERVICES
erating condition. The Supreme Court upheld the Board’s
finding that the employee was discharged because he refused
to drive a truck on his assertion that the truck was unsafe,
and his refusal was protected by the collective-bargaining
agreement.
In view of the above findings and the full record, I find
that General Counsel failed to prove, prima facie, that Re-
spondent was motivated by Ayers’ protected concerted activ-
ity to transfer Ayers to another job location on July 14, 1993.
Additionally, I find that Respondent proved that it would
have transferred Jeffrey Ayers on July 14, 1993, in the ab-
sence of Ayers’ protected concerted activity. Respondent
proved that it transferred Ayers because of his continuing
complaints without regard to whether those complaints in-
volved matters discussed in the contract. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
CONCLUSION OF LAW
Respondent did not violate provisions of the Act by trans-
ferring or by discharging its employee Jeffrey H. Ayers be-
cause of his protected concerted activities.
[Recommended Order for dismissal omitted from publica-
tion.]