Allen M. Campbell Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1002 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen M. Campbell Company General Contractors,
Inc. and Lowell V. Hart. Case 16-CA 7929
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On August 22, 1979, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a motion to reopen the record, and the Gen-
eral Counsel filed a response to Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Allen M. Campbell
Company General Contractors, Inc., Tyler, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I Respondent's motion to reopen the record for introduction of additional
evidence to substantiate its contention that it cannot offer reinstatement to
Charging Party Hart is hereby denied, as the evidence sought to be intro-
duced relates to matters which can best be resolved at the compliance stage
of this proceeding. See Sports Coach Corporation of America. 203 NLRB 145.
fn. I (1973): William 0. McKay Company. Inc., 204 NLRB 388. fn.I (1973).
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge: This
case was heard by me in Tyler, Texas, on November 8 and
9, 1978.' The charge was filed by the individual on June 5,
and the complaint was issued by the Regional Director for
Region 16 of the National Labor Relations Board (the
"Board"), on behalf of the Board's General Counsel on July
21, alleging that Respondent discharged employee Lowell
V. Hart on February 23 because he engaged in protected
concerted activities in violation of Section 8(a)(1) of the
All dates hereinafter are in 1978 unless otherwise stated.
National Labor Relations Act (the "Act"). 2 No union or
labor organization is involved in this case, and essentially
the General Counsel contends that Hart was discharged for
making certain safety complaints which the General Coun-
sel contends constituted concerted and protected activity
under the Act. Respondent defends by contending that
Hart was one of four employees chosen for layoff or dis-
charge for economic reasons because he was slow, incompe-
tent, and insubordinate.
Upon the entire record. including my observation of the
demeanor of the witnesses,3 and after due consideration of
the briefs filed herein by the General Counsel and Respon-
dent I make the following:
FINDINGS OF FACT
1. JRISDICTION
The pleadings and admissions herein establish the follow-
ing jurisdictional facts. Respondent is and has been at all
times material herein a corporation duly organized under
the existing by virtue of the laws of the State of Texas,
maintaining an office and place of business in Tyler, Texas,
where it is engaged in the business of general contracting in
the construction industry. During the representative I-year
period in the course and conduct of its business Respondent
performed services to customers outside the State of Texas
valued in excess of $50,000. Thus, as admitted, I find and
conclude that Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACrICES
A. Summao , of the Evidence
4
Lowell V. Hart was employed by Respondent in March
1977 as a carpenter. He was hired by Carpenter Foreman
2 At the onset of the hearing counsel for Respondent filed a motion to
discuss the complaint for lack of "detail" or the failure of the complaint "to
state the attendant circumstances making the discharge unlawful." The mo-
lion was also based on the contention that the initiating charge lacked suffi-
cient detail and was thus "defective." After argument I denied the motion.
and in Respondent's brief filed herein counsel urges my reconsideration of
the denial. Upon further cosideration of the matter, including a review of the
Board's applicable Rules and Regulations and precedents I again conclude
that my ruling was justified and correct in this case. The pertinent parts of
the Act provides as follows:
Sec. 8 (a) It shall be an unfair labor practice for an employer-(I) to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 ....
Sec. 7. Employees shall have the right . . to engage in other con-
certed activities for the purpose of collective bargaining or other mutual
aid or protection ....
' The facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability. the demeanor of the witnesses, and the
teaching of N.L. R.B. v. Walton Manufacturing Compnanr d Loganville Pants
Co., 369 U.S. 404. 408 (1962). As to those testifying in contradiction to the
findings herein, their testimonies have been discredited either as having been
in conflict with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief. All testimony ha-. been reviewed
and weighed in light of the entrire record.
'The following includes a summary of the testimonies of the witnesses
245 NLRB No. 129
1002
AI .EN MN. CAMPBELl. COMPANY
Granville Griffith. Hart was discharged on Thursday. Feb-
ruary 23. 1978. and his discharge slip recites "incompe-
tence" as the reason.' Hart had been a carpenter for several
years prior to his employment with Respondent. and on at
least one occasion he had been involved in "column" work,
which apparently constituted the greater portion of the
work in which he was involved when he was discharged.
On Monday, February 21, Hart and his partner, fellow
carpenter Robert F. Little, were instructed to "set an out-
side corner column." They also had the aid of carpenter's
helper William Love. Both Hart and Little for several
weeks prior to this occasion had not been involved in col-
umn work but had been working on a stairwell. While en-
gaged in setting the outside corner column Hart was actu-
ally on the building approximately 16 feet in the air, at the
top of the column that was being set.7 Hart's fellow worker
Little was on the ground. According to Hart. the column
forms weighed as much as "an automobile" and were lifted
into place by a crane, after which they would be secured by
bolts to the existing portion of the structure. In this case the
crane that was being used was on the ground below, and
Hart was in the process of bolting a portion o the unse-
cured form to one that had been secured and was appar-
ently using the secured portion to hold on to during this
process. Hart did not have his safety belt on at this time,
indicating that it was "missing."s While in the process of
securing a portion of the column Superintendent Griffin.
who was also standing on the ground, called up to Hart and
told him to "turn the crane loose."9 Hart refused to free the
crane, indicating to Griffin that he could not free the crane
because that portion of the form had not yet been bolted to
the secured portion. According to Hart. Carpenter Fore-
man Griffith was also in the area and on the ground and
pointed out to Griffin that a portion of the column had not
appeanng in the case. The testimonies will appear normally in narrative
form, although on occasion some testimony will appear as actual quotes
from the transcript. The narrative only and merely represents a summary of
what the witnesses themselves stated or related and does not necessarily
reflect my ultimate findings and conclusions in this case.
I Two copies of the discharge slip itself were admitted into evidence. There
are vanous blocks on the slip which can be checked for the reason for dis-
charge. Hart's discharge slip definitely reflects that the block captioned "in-
competence" was checked. A very light mark also appears after the block
captioned "insubordination." Respondent's copy definitely reflects both
blocks were checked, and Respondent in this case argues that "insubordina-
tion" was an additional reason for the discharge.
I Hart's fellow carpenter, Little, subsequently died before this case was
heard, and carpenter's helper Love did not testify.
' To "set" columns there is a process which begins with the formation or
construction of the column form. followed by placing the form in proper
position on the partially completed structure, and thereafter attaching the
form to the structure. Occasionally, only half of the column is actually
formed and then placed into position, followed by the positioning and secur-
ing of the second half. In such cases not only does the column form often
require securing to the super structure of the building, but each half requires
attachment. usually by bolting. When the form is placed it is then poured.
and when dry the form is removed.
' These safely belts contained a safety hook, and the belt with the hook
was frequently used to insure that the carpenter was actually secured to a
previously attached portion of the building.
' At this time the cable of the crane was apparently holding the unsecured
portion of the column in place, awaiting the secunng of that portion by Hart
The expression "turn the crane loose" was, in effect, an instruction or direc-
tive to Hart to disengage the crane cable from the unsecured portion of the
column in order that the crane could then be used for other construction
purposes.
yet been secured, to which Griffin replied, "To hell with
safety . . . turn it [the crane] loose anyway." Hart testified
that he then explained that he would not do anymore work
under such unsafe conditions, further indicating that if he
was fired for the refusal he would go to "OSHA."" ° Hart
apparently then came down from the building, whereupon
he and Griffin had words, Hart refusing to work on the
form in its present condition and Griffin thereafter remain-
ing angry and, according to Hart, "kicking" 2-by-4s and
"throwing his hat down and kicking it." In cross-examina-
tion Hart further conceded that not only did he threaten to
go to OSHA if he were fired, but that he in fact definitely
indicated that he was going to complain to OSHA about
the safety hook."'
On Wednesday mornings Respondent normally con-
ducted "safety meetings" for all employees. The day tfollow-
ing the column and crane indicent was Wednesday. Febru-
ary 22. and as was normally the case Hart attended the
morning safety meeting. Although Foreman Griffith was
present the meeting this particular morning was conducted
by Safety Engineer Fletcher Smith. At this meeting Hart
indicated that he made a complaint about the "hook that
[he) had for [his] safety belt." According to Hart. the main
point of his complaint was that his safety hook lacked a
"satety latch." causing the hook to come free and exposing
him to falling as much as 60 feet at times. Foreman Griffith,
in turn, made a comment that he felt the hook was of suffi-
cient strength to hold him even though it was "hand fash-
ioned" or a rebar hook instead of a regular safety hook.
Hart apparently took Griffith's response as conveying the
opinion that the hook itself was adequate. Later in the day,
when he and fellow carpenters Ray Becker, U.S. Belcher,
and Robert Little were together in the parking lot. Griffith
approached them and informed them that Griffin was going
to "lay off" four men, further explaining that Griffin had
asked him for a list of four names of those to be laid off.
According to Hart. Griffin indicated that he had given the
list of four names to Griffith. but that Hart was not on the
list, and when Griffin saw the list he indicated that he only
wanted three names because he was going to fire "that son-
of-a-bitching Hart" himself. Griffith further indicated that
he had done everything he could do to help Hart, and that
he felt Hart was a good carpenter, but that Griffin was
determined to fire him for "agitation." The following morn-
ing, February 23, Hart again spoke to Foreman Griffith.
who reconfirmed Griffin's intentions of discharging him,
and later on that afternoon Hart was given his final check
and discharge slip.
Hart testified that he felt he was a good carpenter, and
that he and his partner Little were often called upon to
correct the mistakes of others and to do more difficult "cor-
ner work." Hart related that he had received no complaints
about his work and had been commended on one occasion
for an innovative idea while working on a different and
earlier project. Hart testified that in the past he had set
' The term "OSHA" appears throughout the record in this case and refers
to the Occupational Safety and Health Administration of U.S. Department
of L.abor.
1 Several days after Ilart was discharged. on February 27. Hart in fact did
file a complaint ith OSHA. and a cop o the complaint ,as admitted nto
evidence in this case
1003
D[)E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
columns of a different type while working with another con-
tractor, and that while working for Respondent a represent-
ative of the manufacturer of the forms Respondent was
using came to the project site and gave Respondent's car-
penters, including himself, instructions and training regard-
ing their particular columns, how to handle them, and how
to provide for their repeated use. Hart did concede that
when he started to work for Respondent he did not possess
"heavy construction skills" or knowledge as to how to con-
struct the column forms that were used by Respondent but
could not recall whether he actually told either Griffith or
Griffin about his lack of such "skills" before he was hired in
March 1977. In addition to his complaint with OSHA, Hart
related that he also filed an additional complaint with the
"Texas Employment Commission" over his discharge, but
he indicated and conceded that it was his understanding the
"four carpenters" who were to be laid off were to be re-
placed with carpenters more experienced in column work or
building column forms.
Ray R. Becker was also employed by Respondent in
March 1977, and several months prior to his testimony in
this case he had been discharged by Respondent. There-
after, he was employed by another larger construction com-
pany, where Hart also later became employed. Becker testi-
fied that at this larger company he became a carpenter
foreman, and that Hart became the "best hand" that he
had, thereafter also rising to the position of a carpenter
foreman. Becker had been a carpenter for 28 years, 20 years
of which he had spent apparently in heavy construction
work. During February 1978 he served as a carpenter and
"form setter" with Respondent but later became a labor
foreman and a concrete foreman after Hart's discharge and
before his own discharge. Becker testified that he normally
worked between 10 to 15 feet from Hart, and that Hart and
Little usually set the larger 16-inch corner columns, which
were the hardest columns to work with, as opposed to the
smaller 12-inch inside columns.
Becker was approximately 10 to 14 feet away when the
February 21 crane incident occurred between Hart and
Griffin. According to Becker, Griffin told Hart to turn the
crane loose, after which both Hart and Little refused, indi-
cating that a portion of a column had not been completely
bolted. Becker went on to relate that Griffin got mad, threw
his hat down, cursed "a time or two" and again stated that
he wanted "that damn crane turned loose." Becker testified
that during this interchange Griffin also said something
about "forget safety," to which Hart replied that if he was
fired over an unsafe practice, he was going to OSHA.
Becker described the incident as "very much an argument,"
adding that Griffin got "awfully mad." Becker also at-
tended the earlier morning safety meeting the following
day, February 22, and testified that at this meeting Hart
complained about safety hooks, and that he (Becker) joined
in with this complaint. Several days later, after Hart was
discharged, Respondent purchased and handled out new
safety hooks. Becker was also in the parking lot with Hart
in the afternoon of February 22 and corroborated Hart's
testimony that Foreman Griffith approached them and in-
dicated that Griffin was going to see to it that Hart was
fired.
Alganeal Griffin testified as the construction or project
superintendent for Respondent, the position which he held
when Hart was discharged. He had been involved in con-
struction work for 30 years, and he had been a superinten-
dent for the last 22 years. Griffin conceded that when Hart
was hired he had explained that he lacked experience in
setting forms and in concrete work but was willing to try. In
Griffin's opinion, Hart was working "out of his field."
Throughout his testimony Griffin gave various reasons for
discharging Hart, which included "dogging the job," "kill-
ing time," "he didn't think he was competent," his "work
wasn't always right," and "a time or two ... he was insub-
ordinate."'2 Griffin's testimonial reason for keeping Hart
until his discharge was the nonavailability of other more
qualified carpenters, adding that he had concluded as early
as May 1977 that was in fact incompetent.
In further testimony Griffin indicated that he did not spe-
cifically recall any incident of February 21 involving the
crane, but he flatly denied that he ever had any argument
on that day or any other day in February with Hart. He
did, however, remember an occasion around February 21
when he instructed Hart to turn the crane loose. Foreman
Griffith was also present, and, according to Griffin, Griffith
also joined in this request, and that thereafter Hart did not
actually refuse to turn the crane loose but merely took a
longer time in releasing it than necessary. He admitted that
as a result of holding up the crane he was "a little upset,"
but he did not recall throwing his hat or helmet down or
kicking any lumber. Griffin went on to testify that it was
such actions on the part of Hart which caused him to con-
clude that Hart "didn't work fast enough to suit [him] and
turn the crane loose," and this contributed to his decision to
discharge Hart. According to Griffin, Hart's main job was
setting column forms, along with three other carpenters.
Griffin further testified that he had never discharged any
employee for making a safety complaint, although before
he discharged Hart he did know of Hart's safety hook com-
plaint made at the February 22 safety meeting. He indi-
cated that later on the day of the meeting, soon after he
learned of the complaint, he ordered new safety hooks, and
that they did arrive 2 days later." According to Griffin,
Hart's complaint at the safety meeting was the first com-
plaint that he had received from any employee regarding
safety hooks, and that all of the carpenters had been using
the same type of "rebar" hooks without safety latches, add-
ing that there were six to eight safety belts on the jobsite,
which were enough for all column workers. He also con-
ceded that he had knowledge of OSHA regulations which
require safety belts for all above-ground workers, adding,
however, that during February there were in fact between
10 and 12 such above-ground workers. Griffin indicated
that after Hart's discharge production went up and costs
12 The two discharge slips which were admitted into evidence in this case
appear to be virtually duplicate copies except, as noted earlier, one has both
"incompetence" and "insubordination" checked, and one lacks a check mark
before "insubordination." The discrepancy was never completely resolved on
the record, although Hart's copy apparently was a fourth copy (third carbon
copy), and this copy was far less clear than the copy furnished by Respon-
dent. Griffin definitely included "insubordination" in his reason for Hart's
discharge during his testimony.
1 An order invoice admitted into evidence in the case reflects that the
saftey hooks were in fact ordered February 21.
1004
ALLEN M. CAMPBELL COMPANY
came down, but he conceded that during January and Feb-
ruary production was light because of the weather. He also
denied that he ever commended Hart for any work or idea
while he was employed by Respondent, but that in Decem-
ber 1977 Hart came to him and asked for a raise, which he
denied because in his opinion Hart was not entitled to a
raise and he "didn't feel like granting anybody a raise at
that time."" According to Griffin, after this denial Hart's
work "went way down ... really slowed down."
Griffin testified that he discussed that actual decision to
discharge Hart with Foreman Griffith, who agreed with the
decision. Griffin first testified that he had been thinking
about discharging Hart for "several weeks" and actually
came to the decision before the February 22 safety meeting.
In later testimony he related that he actually made the de-
cision on the date of the discharge (February 23), and after
talking to Griffith on that date, which was also when he
received the list of employees from Griffith to be considered
for discharge. According to Griffin, Hart's name was on
that list. However, in yet later testimony, Griffin again indi-
cated that his actual decision to discharge Hart was made
several weeks prior to the actual discharge.
James P. Latham testified as a present crane operator for
Respondent. He also was a crane operator in February.
although he was not operating the crane during the Febru-
ary 21 incident. Latham testified that he and Hart had dis-
agreed at times as to whether Hart was giving proper sig-
nals to him as operator. They also disagreed on at least one
occasion about the safety measure of the use of "tag" lines
in lifting loads on windy days.' Latham testified that Hart
had told him he had been a crane operator for some 19
years prior to his job with Respondent, and that he felt
equally qualified regarding the operation of the crane.
Latham also felt that Hart and Little frequently tied up the
crane for an excessive period of time, twice as long as the
other carpenter team. Latham also claimed some knowl-
edge about Hart's requested raise in December. He testified
that he was outside of Griffin's office when Hart and Little
emerged from the office after asking for a raise, and at that
time he overheard Hart say that he "got his raise whether
or not [Griffin] knew it."
J.N. Matlock testified as the Respondent's executive vice
president. Matlock accomplished an analysis of production
of the carpenters at the jobsite involved in this case. This
analysis covered first the period of December 17, 1977, to
February 25, 1978, and then the period of February 25 to
April 22. In this analysis a comparison was made regarding
the amount of man hours and money required to perform I
square foot of column work during the two periods. Mat-
lock testified from various documents and ledger sheets
which he had used to calculate the results of his compari-
son, and these sheets were admitted into evidence. The re-
sults of Matlock's calculations reflected that during the ear-
lier and first period used the man cost per square foot
14 Hart also mentioned this request in his testimony. All of the employees
did receive a planned and expected raise on January 1.
5 "Tag" lines are additional lines tied to a load to guide and hold it steady
when being lifted. They are a safety measure, and according to Latham, on
at least one occasion both Hart and Little did not want to use tag lines when
Latham thought they should be used.
amounted to "63.53 cents." as opposed to "50.85 cents" per
square oot during the second period. representing a total
cost saving of $2,248.75. Matlock considered this savings to
be substantial. especially when taking into consideration
the January I raise. He attributed such a savings normally
to two factors. different personnel or a "change in meth-
odtis," but he testified that there was no change in methods
at the jobsite involved in this case. Matlock conceded that
he had no knowledge of how many carpenters at the jobsite
were doing column work during the two periods. and he
further related that more carpenter hours were put into col-
umn work during the second period chosen for comparison.
He also agreed that such a decrease in costs would be
"hard" to trace to "one person" and further conceded that
such factors as weather, hours per week, and the ability or
output of the other workers (crane operators, carpenter ap-
prentices, and laborers) would also affect production costs.
B. Evaluation of the Evidence and Initial Conclusions
In its brief Respondent characterizes the complaint as
alleging that Hart was "discriminatorily" selected for dis-
charge.'" Such terminology does not in fact appear in the
complaint and rightly so, as we are concerned here only
with an alleged violation of Section 8(a)( 1) of the Act, i.e.,
the interference, restraint, or coercion of employees engag-
ing in concerted activities for their mutual aid or protection.
Although the point may appear minor, it serves to narrow
my considerations to three areas, to wit: I. whether the
alleged safety complaints were actually made by Hart; 2. if
made, whether they constituted concerted activity under
the Act; and 3. whether Hart was discharged because of the
complaints.
I find that the complaints themselves were made on Feb-
ruary 21 during the crane incident and at the February 22
safety meeting. On February 21 Hart was up on the build-
ing structure securing or bolting a portion of a corner col-
umn form, which was also being held steady and secure in
place by the crane two line. Project Superintendent Griffin
approached and directed Hart to free or turn the crane
loose. Hart refused, maintaining that the column was not
yet sufficiently secure." Griffin again directed Hart to free
the crane, exclaiming "to hell with safety," and Hart again
refused, further refusing to work under said unsafe condi-
tions and threatening to complain to OSHA if he was dis-
charged because of his refusal. Griffin became extremely
upset and angry as a result of Hart's refusal, even in light of
Carpenter Foreman Griffith's presence and reminder to him
" The term "layoff" also appears throughout this case. The terms dis-
charge and layoff are, in my opinion, interchangeable in this case. Hart's
discharge notice in fact is entitled "Employment Termination Record" and
provides or recites that he is not eligible for reemployment. Further, the
"discharged" portion of the notice, as opposed to the "laid off" portion, was
used and checked.
7 Hart was not weanng his safety belt at this time and thus was not using
a safety hook of any type. He testified that his belt was "missing." This fact,
in my opinion, poses only unanswered questions or conjecture in this case.
Should Hart have attempted the column setting without a safety belt. and if
not, why did he do so? Did Hart here tie up the crane for an unduly long
period, and if so, was it due to, in part at least, the lack of a belt? The record
is insufficient to reach supportable and proper conclusions in these areas.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that that column was not yet secure.' The February 22
safety complaint was made at the weekly safety meeting
early in the morning. This meeting was conducted by Safety
Engineer Fletcher Smith. and Hart complained about the
lack of safety hooks equipped with a "safety latch."'" This
complaint of Hart's was and is undisputed in this case and
thus deserves no further comment as to its existence.
Next for determination here is whether Hart's complaints
constituted concerted activity, that is fr the mutual aid or
protection of employees. Respondent employed 20 or more
carpenters at this particular jobsite. All carpenters working
above ground level were required to wear safety belts with
safety hooks, and prior to Hart's February 22 complaint all
safety hooks being used were "rebar" hooks without safety
latches. The Board has long held that even lacking union
representation or a collective-bargaining agreement individ-
ual action is protected concerted activity under the Act if
the employee is complaining about a matter of common
concern to other employees in the same circumstances.2 ' I
find this to be the case here, and thus find and conclude
that Hart's complaints on February 21 and 22 constituted
protected concerted activity under the Act.
I now reach the question as to whether Hart was dis-
charged because of the complaints. Absent this motivation
Respondent of course was free to discharge Hart for any
reason or for no reason at all. Superintendent Griffin
claimed that he discharged Hart for "incompetence" and
"insubordination." 2 ' He was directly involved in the Febru-
ary 21 incident, and by his own admission he knew about
Hart's complaint at the February 22 morning safety meet-
ing prior to the discharge of February 23. On the afternoon
of February 22 Foreman Griffith told Hart. in the presence
of carpenter Becker. that Griffin had instructed him to list
1I Superintendent Griffin testimonially and essentially denied this por-
trayal of this incident. I discredit completely the relevant portions of Griffin's
testimony in this case. In addition to Respondent's unexplainable failure to
call Respondent's Foreman Grinffith to testify and corroborate Griffin's testi-
mony, Griffin was himself indifferent, vacillating, and indefinite throughout.
He was even unable to settle on a date on which he decided to discharge
Hart. His testimony was at such variance from time to time that its narrative
summary appearing earlier herein proved most difficult to draft into under-
standable yet objective form. Regarding the February 21 crane incident.
although Hart's partner Little had since died Hart's testimony was addition-
ally and creditably corroborated by fellow carpenter Ray Becker. who was
working 10 to 14 feet nearby.
I The hooks with safety latches were in fact ordered immediately and
arrived at the jobsite several days later. Hart also conceded in cross-exami-
nation that he made complaints at about hallf of all the safety meetings. On
this occasion (February 22), fellow carpenter Becker joined in with Hart in
making the complaint.
2 Hugh H Wilson Corporation, 171 NLRB 1040 (1968). enfd. 414 F.2d
1345 (3d Cir. 1969), cert. denied 397 U.S. 935 (1970): Ohio Oil Co, 92 NLRB
1597 (1951); Halsey W. Taylor Co., 145 NLRB 425 (1963); Guernses-Mus-
kingum Elecrric Cooperative, Inc., 124 NLRB 618 (1959). enfd. 258 F.2d 8
(6th Cir. 1960).
'' Although insubordination was a stated reason, the record curiously con-
tains no evidence of this allegation, with exception of the February 21 crane
incident itself and Griffin's testimony that Hart was insubordinate "a time or
two." Griffin expanded the term "incompetence" to include slow working
and tying up the crane too long, which was corroborated by crane operator
Latham. Latham was not only employed by Respondent at the time of his
testimony, but also he and Hart were at times at odds about his ability or
competence as a crane operator and the use of "tag" lines. As in the case of
Griffin, I credit the testimony of Hart (and Becker) over that of Latham in
this case, and here again the absence of testimony from Carpenter Foreman
Griffith is puzzling.
four men to be laid off, and that later Griffin had said he
only wanited three names because he was going to fire "that
son-of-a bitching Hart." 2 Foreman Griffith added that he
felt Hart was a good carpenter and had tried to change
Griffin's mind, but that Griffin was determined to fire him
for "agitation.""
Respondent further makes a somewhat indirect and curi-
ous economic defense to Hart's discharge. Griffin wanted to
lay off or discharge four employees, one of whom was Hart.
tie asked Carpenter Foreman Griffith to list an additional
three names. There was no actual reason given by Griffin in
testimony for his intentions to discharge four men, except in
the case of Hart for incompetence. Griffin then follows by
indicating that after Hart was discharged production went
up and costs came down, yet conceding that during Janu-
ary and February production was low because of the
weather.2 Respondent's Executive Vice President J.N. Mat-
lock attempted in testimony to support Griffin's production
cost linkage to Hart's discharge by comparing the square
foot column production costs with the periods December 17
to February 25. and February 25 to April 22. According to
Matlock, the cost per foot during the earlier period was
approximately 63 cents as opposed to 51 cents during the
later period. However, Matlock further indicated that more
carpenter man hours went into column work during the
later period, and that he had no knowledge of how many
carpenters at the jobsite were actually engaged in column
work during either period. Matlock also conceded that
other f;ctors affected column production costs, including
weather, number of hours worked per week, and the ability
to output of such other employees as crane operators, car-
penter apprentices, and other laborers. Matlock also agreed
that it would be "hard" to trace a decrease in such costs to
one person. Indeed, I find that it was far from accomplished
here in this case. Although Matlock's figures were essen-
tially undisputed, they were derived from records and facts
Although Hart was apparentll told by someone that "four carpenters
were coming that could build torms." there is no actual or direct evidence in
the case to indicate who the other employees on the list were, if they were in
fact "laid oft' or "discharged." and if so, for what reasons. Nor does the
evidence reflect that the other names on the list were actually carpenters,
notwithstanding the fact that "carpenter" Foreman Griffith was given the
task of providing the list. Additionally, there is further lack of evidence of
any actual replacements.
i2 This represents a summary of Hart's testimonial description of the inci-
dent, generally corroborated by Becker. The actual incident was not specifi-
cally remembered by Griffin in his testimony: thus, many of the remarks
were not specifically denied by him. And here again, the lack of testimony
from Foreman Griffith adds to the conclusion of total reliability of Hart's
recollection and rendition of the incident. Becker, in his testimony, did mani-
fest some animosity towards Respondent and praised Hart's abilities. Both
had obtained jobs with the same company and had receied promotions,
Notwithstanding Becker's feelings about Respondent and Hart, I credit him
completely in this case, as indicated earlier. His testimony and manner were
direct, forthright, and certain. He had the air of a good and hard working
construction man of above average intelligence, who seemingly took the oath
far more seriously than many others. Hart, whom I have also credited in this
case, was obviously not blessed with the intellectual skill levels of some. He
appeared to be of the approximate age of 50 and admitted that he could not
read well. Thus. his testimony, when viewed from the cold pages of the
transcript only, occasionally appears uncertain and evasive. Such was not
the case, for frequently there was a need for repetition or clarification of
questions put to Hart before their subject manner came through.
i2 Somewhat inconstant with this concession was Gnffin's reason for keep-
ing Hart so long-the nonavailability of more qualified carpenters at the
time.
1006
ALL.EN M. CAMPBELL COMPANY
that were subject to a multitude of variables, uncertainties,
and contingencies and thus fall far short of even raising a
slight inference that the cost decrease resulted even in part
from Hart's discharge.
Hart's safety complaints may well have been considered
by Griffin as "agitation," which was the reason he gave to
Foreman Griffith for wanting to discharge Hart. No matter
what the label or how they were taken by Griffin, I find that
Hart was discharged because of the complaints in violation
of Section 8(a)(1) of the Act as alleged in the complaint.
Upon the foregoing findings of fact, initial conclusions.
and upon the entire record I hereby make the fllowing:
CONCt !StoNS o()- LANA
1. That Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. That the safety complaints made bh employee Lowell
V. Hart on February 21 and 22, 1978, constituted protected
concerted activity under Section 7 of the Act.
3. That on February 23. 1978. Respondent iolated Sec-
tion 8(a)(1) of the Act by discharging employee owell V.
Hart for engaging in the protected concerted activit de-
scribed in 2. above.
4. That the improper act and conduct concluded in 3.
above, and found herein affected commerce within the
meaning of Section 2(6) and (7) of the Act.
Tilt RiEMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)( I) of the
Act, I shall recommend that it cease and desist therefrom25
and take certain affirmative action as set forth below de-
signed to effectuate the purposes and policies of the Act.
Having found that Respondent violated Section 8(a)(1)
of the Act by unlawfully discharging employee Lowell V.
Hart, I shall recommend that Respondent offer him imme-
diate and full reinstatement to his former position or. if
such position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges previously enjoyed.
I shall further recommend that Respondent make Hart
whole for any loss of earnings he may have suffered as a
result of the discrimination against him by payment of a
sum of money equal to that he normally would have earned
from the date of discharge to the date of its offer of rein-
statement, less net earnings, with interest thereon to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950). and Florida Steel Corpora-
tion, 231 NLRB 651 (1977)2.s
I shall also recommend that the additional "cease and desist" provision
of the Order be of the narrow vanety. which I feel to be more appropriate in
this case. See Hickmont Foods. Inc., 242 NLRB 1357 (1979).
1'See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) In
his brief the General Counsel has requested that a remedial interest rate of 9
percent per annum be imposed on the backpay for which Respondent is
liable due to the violations found herein. a percentage which is at ariance
with the Board's current policy of calculating interest according to the "ad-
justed prime rate" utilized by the Internal Revenue Service for interest on
tax payments. This request is denied. See Southern California Edison Com-
pony, 243 NLRB No. 62, fn. (1979).
It will also he recommended that Respondent preserve
and make availabhle to the Board. upon request. all payroll
records. social security pai ment records. timecards, person-
nel records and reports. and all other records necessar' and
useful to determine the amount of backpay due and all the
rights of reinstatement under the terms of these recommen-
dations.
' Upon the basis oft the foregoing findings of' fact, conclu-
sions of law, and the entire record and pursuant to Section
10(c) of the Act I herehb issue the following recommended:
OR()K .FR'
The Respondent. Allen M. (Campbell Company General
Contractors, Inc.. its otlicers. agents successors and assigns,
shall:
1. ('ease and desist from:
(a) l)ischarging emplo'ees for engaging in concerted ac-
tivity for their mutual aid or protected b making safety
complaints.
(b) In an! like or related manner intertcring with, re-
straining. or coercing emplo,,ees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. ake the following affirmative action:
(a) Offer Lowell V. Hart immediate and full reinstate-
ment to his tformer job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previousl enjoyed.
and make him whole for any loss of pay he ma) have sul-
fered as a result of his unlawful discharge in the manner set
forth in the section of this l)ecision entitled "The Remeds."
(b) Preserve and, upon request. make available to the
Board or its agents for examination and copying all payroll
records. social securit' records and reports and all other
records necessar to analvze the amount of backpa due
herein.
(c) Post at its office and place of business in Tyler. T'exas
copies of the attached notice marked "Appendix."' Copies
of said notice. on forms to be provided bh the Regional
Director for Region 16, after being duly signed by Respon-
dent's authorized representative shall be posted by it im-
mediatels upon receipt thereof and be maintained by it for
60 consecutive dass thereafter in conspicuous places. in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall he taken to insure that
said notices are not altered. defaced, or covered b any
other material.
(d) Notify the Regional Director for Region 16. in writ-
ing, within 20 days from the date of receipt of this Decision,
what steps have been taken to comply herewith.
2' In the event no exceptions are filed as provided b Sec 102.46 of' the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall. as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
n In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
No'(cIE TO EMPLOYEES
POSTED BY ORDER OF HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice. We
intend to carry out the order of the Board.
WE WILL. NOT discharge employees for engaging in
concerted activity for their mutual aid or protection by
making safety complaints.
WE WILL NOI in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL offer Lowell V. Hart immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed, and WE WIlL make him whole for
any loss of pay which he may have suffered as a result
of his unlawful discharge, with interest.
AI.LEN M. CAMPBEI. COMPANY GENERAI. CON-
ITRACTORS IN(.
1008