Buck Brown Contracting Co., Inc. And A.S.C. Constructors, A Joint Venture

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 488 (N.L.R.B. 1987)

488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Buck Brown Contracting Co., Inc . and A.S.C. Con-
stiuctors, a Joint Venture and Randal F.
Fansler and Robert J. Kelly and Wendell
Bridges and David Mark Doran and John
Angle . Cases 31-CA-10035, 31-CA-10043, 31-
CA-10047, 31-CA-10141, `and 31-CA-10155
31 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND CRACRAFT
On 2 February 1982 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision' and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions as modified and to adopt the recom-
mended Order as modified.3
We agree with the judge that the Respondent
violated Section 8(a)(1) of the Act by making sev-
eral coercive and threatening statements . We also
agree that the Respondent unlawfully discharged
three employees.4 We fmd merit, however, in the
i The last sentence of sec. IV,D,2, par. 2, of the judge's decision
should read "Further, while there is no record evidence that Easter was
aware that Bridges actually spoke to Lively ...: . The first sentence of
sec. IV,D,2, par. 4, should read "Having established that Bridges engaged
in protected concerted activities , however limited , and that Respondent,
through Easter, was aware of, or suspected , such conduct ...." We
correct the inadvertent errors
a Both the Respondent and the General Counsel have excepted to
some of the judge's credibility findings The Board 's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We also find no merit in the Respondent's allegation of bias and preju-
dice on the part of the judge. On our full consideration of the record and
the judge's decision , we perceive no evidence that he prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Respondent
in his analysis or discussion of the evidence.
9 The judge inadvertently omitted from the cease-and-desist portion of
his recommended Order a provision enjoining the Respondent from in
any like or related manner interfering with the employees' Sec. 7 rights.
We shall amend the Order to so provide.
We shall also modify the Order by adding the affirmative requirement
that the Respondent expunge from its records any references to the un-
lawful discharges and notify the employees in writing that this has been
done and that evidence of the unlawful discharges will not be used
against them.
4 In affirming the judge's finding that Robert Kelly and Randal
Fansler engaged in protected concerted activity when they sought the
Respondent 's compliance with the terms of the parties' collective-bar-
gaining agreement, we rely on NLRB v. City Disposal Systems, 465 U.S.
822 (1984) Because we affirm the judge 's findings in this regard, we find
it unnecessary to decide whether Kelly's complaints regarding noncon-
tractual matters were protected concerted activity
Respondent's exceptions to the judge's findings
with respect to certain statements of Project Man-
ager Jim Joy.
1. On 7 May 19805 following the discharge of
employee Randal Fansler, Joy met with two union
agents and an employee steward. During their
meeting, one of the union agents mentioned a
threat by union members to picket the jobsite in
protest of-the discharge: According to one union
agent, Joy replied that if "things didn't work out
and the men didn't get back to work, the basic
thing that would happen is that [the Respondent]
would lose [its] contract," with the contract prob-
ably being awarded to Brown and Root, a non-
union firm also engaged at the jobsite. Also in
early May at a safety meeting with the employees,
Joy announced that employees from the nonunion
firm would be sharing camp space with the Re-
spondent's employees. According to the credited
testimony, Joy stated that "if there were any union
problems, either there or on the job, that the whole
job could go to Brown and Root, that they are
waiting to take it over." We do not agree with the
judge that Joy's remarks are unlawful threats of
business closure in retaliation for union activities.
Joy's statements do not intimate that the Respond-
ent would forfeit its contract as punishment for its
employees' union activities. Rather, these state-
ments suggest no more than the possibility that the
Respondent could lose its contract due to the activ-
ity of parties beyond its control. Such statements
concerning possible third-party action are state-
ments of opinion, not threats of reprisal, and are
protected by Section 8(c) of the Act. Accordingly,
we dismiss that aspect of the complaint and shall
modify the Order accordingly.
2. We disagree with our dissenting colleague's
assertion that the General Counsel has not shown a
prima facie case of unlawful discharge of Kelly.
The General Counsel established that Kelly en-
gaged in protected activity and that his supervisor
who discharged him had knowledge of the activity
and expressed union animus. The nexus which our
colleague finds lacking is supplied by credited testi-
mony that Davis had told Union Steward Hern-
don, when he presented a job-related complaint,
that "we can't be starting all this union shit,"
Davis' anger when Kelly threatened to take a
work-break grievance to Herndon, and Davis'
caustic remark when he gave Kelly his final pay-
check that he had a "present" for Kelly. This is
sufficient in our view to support an inference that
Kelly's protected conduct was the basis for his dis-
charge. As the Respondent has failed to show that
5 All dates refer to 1980.
283 NLRB No. 75
BUCK BROWN CONTRACTING CO.
Kelly would have been discharged even in the ab-
sence of his protected activity, we affirm the
judge's conclusion that the discharge was unlawful.
See Wright Line, 251 NLRB 1083 (1980).
On 14 May Kelly informed Wendell Bridges that
Kelly had just been discharged. Bridges ap-
proached Foreman James Easter and asked if
Easter would hire Kelly for the night crew. Easter
refused, stating, "I got a new crew . . . I don't
want any problems." Bridges told Easter that he
would speak to General Foreman Joe Lively, and
Easter advised Bridges not to go over his head.
Later, after Easter again refused Bridges' request to
hire Kelly, Bridges advised Kelly to speak to
Lively . Easter again became upset and asked if
Bridges was trying to go over his head. Easter cor-
roborated this version of his encounter with
'Bridges, and the judge also credited Easter's testi-
mony that Bridges responded by threatening that
"they were going to wobble" (strike) the job. That
evening, Bridges told Easter that he was driving
Kelly home to Las Vegas and would return for
work the next day. Easter asked whether Kelly
was supporting Bridges, and, when Bridges said
they were just friends, Easter replied, "Look, son
... you want to work on my crew ... you stay
out of other people's business." The judge found,
and we affirm, that this statement was a threat of
discharge in violation of Section 8(a)(1) of the Act.
When Bridges returned for, work the next day,
Easter informed him that he was laid off, stating,
"I don't want no problems on my job." Bridges re-
sponded that such actions could lead to a wildcat
strike, and Easter replied, "To hell with your wild-
cat strike. Get the hell off my job." Later, Bridges
encountered Superintendent Sam Aiton III and
asked, "Wasn't my work satisfactory?" Aiton re-
plied, "That's not the point.... Anyone that cre-
ates any problems from now on is going down the
road." The judge found, and we affirm, that
Aiton's remark was an unlawful threat of dis-
charge.
We agree with the judge's fording that Bridges'
attempt to assist Kelly in procuring employment
with the Respondent was protected concerted ac-
tivity, and base our conclusion that the Respondent
unlawfully discharged Bridges on the judge's find-
ing that this assistance was one reason for Bridges'
discharge.6
6 We disagree with our dissenting colleague's assertion that Bridges'
assistance to Kelly was unprotected. Bridges' attempt to secure employ-
ment for Kelly is not the type of dissident activity that could undermine
the statutory system of bargaining through an exclusive representative.
Cf. Energy Coal Partnership, 269 NLRB 770 (1984) (unauthorized strike).
Bridges was not engaged in collective bargaining; rather, he was in-
volved in classic concerted activity-joining with another to seek em-
ployment.
489
We do not agree with the judge's finding that
Bridges was engaged in protected conduct when
he threatened a wildcat strike in protest of Kelly's
discharge.? We nevertheless conclude that the Re-
spondent has not met its burden under Wright Line,
supra, of proving that Bridges would have been
discharged even in the absence of his protected
conduct of attempting to secure employment for
Kelly after Kelly was unlawfully discharged. The
Respondent has never asserted that Bridges' threat
was the reason for his discharge. In fact, in its ex-
ceptions, the Respondent argues, based on credibil-
ity, that Bridges never even threatened a strike
before he was terminated. Its asserted reason for
the discharge, Bridges' allegedly poor work per-
formance on 13 May, had nothing to do with his
threat of an unauthorized strike. The judge found,
based on credibility resolutions, that this asserted
reason was a sham and a pretext. Further, Bridges
again mentioned the possibility of a wildcat strike
after he was discharged, and Easter admitted that
he discounted this threat. Accordingly, we con-
clude that the Respondent has not'met its burden
of proving that it discharged Bridges because he
threatened a wildcat strike and not because of his
protected concerted activity of attempting to
obtain employment for Kelly.
4. We also agree with the judge, rather, than
with our dissenting colleague, that the Respondent
unlawfully attempted to interfere with the stew-
ard's duties. The Respondent's threat to put the
steward "up on a hill" suggests isolation from the
rank-and-file employees which would preclude a
steward's effectiveness.
We further agree with the judge that the Re-
spondent unlawfully interrogated employee Fansler
regarding why he contacted his steward about a
pay dispute.
The judge found that 2 hours after Fansler last
spoke to the steward about the dispute, General
Foreman Lively approached Fansler and asked him
why he had contacted the steward. Fansler replied
that whenever anyone tried to "screw him" out of
pay, he was entitled to try to resolve the matter by
speaking to the steward. Lively responded by call-
ing Fansler and the other carpenters a "bunch of
crybabies." Fansler then attempted to' defend the
reputation of the Union, and Lively walked away.
Lively apologized to Fansler later that afternoon.
Because we conclude that the Respondent unlawfully discharged
Bridges because of his assistance to Kelly, we find it unnecessary to de-
termine whether complaints Bridges made about the night crew's work
hours also constituted protected concerted activity.
' It is well established that an unauthorized , or "wildcat," strike is not
activity protected by Sec. 7 of the Act. See Harnischfeger Corp. v. NLRB,
207 F.2d 575, 578-580 (7th Cir 1953).!
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After officials of the Union intervened , Lively
agreed to make up Fansler's lost wages, and
Fansler testified - that by his termination date he had
received all the payment he believed was due him.
The Respondent's general antipathy toward the
steward 's role is clear from the above unlawful
comments made to the steward . The Respondent's
further questioning of an employee as to why he
contacted his steward is coercive in these circum-
stances . We note that , despite Fansler's honest re-
sponse and the supervisor's apology, the interroga-
tion was followed by an unlawful discharge based
on the matter questioned . Accordingly, we affirm
the judge 's conclusion.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Buck Brown Contract-
ing Co., Inc. and A.S.C. Constructors, a Joint Ven-
ture, Tonopah, Nevada, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engaged
in union or-other protected concerted activities.
(b) Threatening to terminate employees because
they engaged in union or other protected concert-
ed activities.
(c) Threatening to affect adversely the job stew-
ard's ability to perform the duties and responsibil-
ities of his office because of his activities on behalf
of the Union.
(d) Interrogating employees with regard to their
union activities.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer' Randal Fansler, Robert Kelly, and
Wendell Bridges immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them
whole for any -loss of earnings and other benefits
suffered, as a result of the discrimination against
them, in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the
unlawful discharges of Randal Fansler on 6 May
1980, Robert Kelly on 14 May 1980, and Wendell
Bridges on 15 May 1980, and notify these individ-
uals in writing that this has been done and that evi-
dence of these-unlawful discharges will not be used
as a basis for future personnel actions against them.
(c) Preserve and,- on request, make available to
the Board or its agents- for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel- records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) If its work assignment at the, Anaconda
Mining project jobsite - in Tonopah, Nevada, has
not yet been completed, post at its office there
copies of the attached notice marked "Appendix."
If its work on that jobsite has been completed,
copies of the attached notice should be sent to the
last known addresses of Randal Fansler, Robert
Kelly, and Wendell Bridges and all union
member/employees employed by the Respondent
between 1 March and 31' May 1980; and to the
Union so that the latter may, if it desires, post the
notice at its dispatch hall or wherever notices are
customarily posted. Copies of the attached notice,
on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately, upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted: Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material. - -
(e) Notify the Regional Director in writing
within 20 days' from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated
amended complaint is dismissed insofar as it alleges
that the Respondent violated Section 8(a)(1) and
(4) of the Act by refusing to, reinstate Robert
Kelly, Section 8(a)(3) of the Act by terminating
Wendell Bridges, and Section '8(a)(1) and (3) of the
Act by terminating David Mark Doran and John
Angle.
CHAIRMAN DOTSON, concurring in part and dis-
senting-in part.
I agree with my colleagues that the Respondent
violated Section 8(a)(3) and (1)' of the Act by dis-
charging Randal Fansler and, through its supervi-
sor Joseph Lively, by threatening to discharge em-
ployees who complained about Lively's violations
B If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by-Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
BUCK BROWN CONTRACTING CO. 491
of the parties' collective-bargaining agreement.' I
also agree with the reversal of the judge's conclu-
sion that certain statements made by Project Man-
ager Joy violated Section 8(a)(1). I disagree, how-
ever, with the majority's conclusion that the Re-
spondent unlawfully discharged Robert Kelly and
Wendell Bridges or made other statements that vio-
lated Section 8(a)(1).
1. THE DISCHARGES
A. Robert Kelly.
The judge and my colleagues find that Robert
Kelly was discharged for raising complaints about
perceived contract violations and working condi-
tions in general. The judge found that Kelly com-
plained to his supervisor Don Davis about the un-
availability of cold drinking water and sanitary fa-
cilities and about Davis' performing unit work.
Noting that Kelly alone on Davis' crew raised such
complaints, the judge inferred that Davis took
Kelly's complaining personally and was motivated
by it to discharge him.
On this evidence, I ford that the General Counsel
has failed to make a prima facie case of unlawful
discrimination. The record does not demonstrate
any nexus between Kelly's protected conduct and
his discharge. According to Kelly's own testimony,
Davis did not respond in a hostile manner to Kelly
when he raised his complaints, and the General
Counsel has not alleged ,that Davis otherwise has
violated the Act. I do not fmd Davis' general state-
ments that the employees were, for example, cryba-
bies, which were never directly addressed to or
made about Kelly, are sufficient to warrant draw-
ing an inference of personal antagonism against
Kelly to support fording an unfair labor practice.
Accordingly, I would dismiss this aspect of the
complaint.
B. Wendell Bridges
The majority adopts the judge's conclusion that
the Respondent unlawfully discharged employee
Bridges. The judge found that Bridges engaged in
three types of protected conduct: he complained
about the number of hours scheduled for his shift;
he attempted to secure employment for a dis-
charged coworker; and he threatened to strike in
protest of that discharge. In my , opinion, none of
these actions is protected by the Act and, accord-
ingly, the General Counsel has failed to present a
prima facie case of unlawful discharge.
In light of this fording, I find it unnecessary to decide if the Respond-
ent violated Sec. 8(axl) by the two additional incidents found by the
judge to constitute unlawful threats of discharge. See sec. IV,F of the
judge's decision . Such a finding would be cumulative and would add
nothing to the remedy.
Bridges' individual complaint that his scheduled
number of hours of work on the night shift was 1
hour less than that scheduled for the-day-shift em-
ployees is not protected concerted activity. As
found by the judge, this was not a matter covered
by the collective-bargaining agreement . Cf. NLRB
v. City Disposal Systems, 465 U.S. 822 (1984). Fur-
ther, the record does not support a finding that
Bridges acted on the authority of other employees
when he made this individual complaint. The con-
clusion that Bridges' complaint was solely personal
is manifest by his proposed solution that he simply
be allowed to work on another crew, i.e., on the
day shift. Cf. Meyers Industries, 268 NLRB 493
(1984).
Second, I do not agree that Bridges' threat to
strike the project, made when Foreman Easter re-
fused to hire Kelly, is protected activity. 'There is
no contention or evidence that Bridges' threat was
supported by the Union or that he sought such sup-
port. Rather, his threatened action was a spontane-
ous and self-initiated "wildcat" strike, and not the
product of majority action through the Unions I
do not believe that employees have a protected
right to so circumvent their, collective-bargaining
representative. Therefore, I would not find -the
threat of a "wildcat" strike protected activity.
Similarly, I do not agree that Bridges' attempt to
secure the reinstatement of Kelly is protected ac-
tivity. Employees who are represented by a collec-
tive-bargaining agent and are aggrieved have at
their disposal union representatives through whom
the employees can seek redress. In my view, when
employees have a duly elected and recognized
union, efforts to assist colleagues by self-designated
representatives undermine the exclusive statutory
representative. I do not find such self-help attempts
protected by the Act.3 Accordingly, I would dis-
miss this aspect of the complaint.
IL THE ALLEGED 8(A)(1) VIOLATIONS
I disagree with my colleagues with regard to
their adoption of two 8(a)(1) violations found by
the judge. The first alleged violation occurred in
early May when Project Manager Jim Joy and Su-
perintendent Sam Aiton III' approached Union
Steward Mike Herndon as Herndon was returning
2 The conclusion that Bridges intended an unauthorized strike is bol-
stered by the frequent characterization of job actions as "wildcat." For
instance, Bridges testified that, when he and Kelly returned to the day
camp following Easter's refusal to hire Kelly, Kelly stated that he was
"going to throw a wildcat ," and Bridges responded that he would not
cross a picket Ime. In addition, the judge dismissed the allegation that
Bridges' discharge violated Sec. 8 (a)(3) of the Act because there was no
evidence that Bridges was involved in any union activity.
2 Cf. Emporium Capwell Ca v Western Community Organization, 420
U.S. 50 (1975).
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to his work area after speaking with employees.
Joy and, Aiton asked Herndon what he was -doing,
and Joy said that he did not think Herndon should
be walking around the project so much. According
to Herndon, Joy also said that "he was going to
put me up on a hill where I could see the whole
job area,' with an umbrella and a watering can, and
that's where I would stay and sit for the whole 10
hours of the day." The judge characterized this in-
cident as involving interrogation and harassment,
and found Supervisor Joy's remark to be an Iinlaw-
ful threat to affect adversely the steward's ability
to perform his duties in violation of Section 8(a)(1).
I fmd nothing in this incident that can be charac-
terized as coercive or destructive of employee
rights. The inquiry to Herndon regarding what he
was doing during his shift hours on the project is
clearly permissible. I further fmd the cavalier
remark about what they might do to Herndon does
not rise to the level of an unfair labor practice. I
would dismiss this aspect of the complaint.
The second incident occurred -on 23 April. Em-
ployee Randal Fansler spoke to his steward Hern-
don concerning a pay dispute with the Respondent.
A few hours later, Supervisor Joe Lively ap-
proached Fansler in the reclaim tunnel area and
asked Fansler why he had come in contact with
Herndon. Fansler replied that he was entitled to
speak to a steward when someone tried "to screw"
him out of pay. Lively replied that Fansler and the
other carpenters were, _ "crybabies" and walked
away. Later that afternoon, Lively apologized to
Fansler, stating, that the_ pay dispute was a result of
a 'misunderstanding and that he -hoped Fansler
would not quit. The judge and my colleagues find,
this was unlawful interrogation in violation of Sec-
tion 8('a)(1). I disagree. Considering the brevity of
the encounter, the informal setting in which it oc-
curred, Fansler's honest and clearly unintimidated
response, and the supervisor's subsequent apology,
I cannot characterize this single question as coer-
cive. See Rossmore House, 269 NLRB 1176 (1984).
Therefore, I would dismiss ,this portion of the com-
plaint.
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 ordered us to post and abide by this notice.
WE WILL NOT discharge you because you 'en-
gaged in union or other protected concerted activi-
ties.
WE WILL NOT threaten to terminate you because
you engaged in union or other protected concerted
activities.
WE WILL NOT threaten to affect adversely the
job steward's ability to perform the duties and're-
sponsibilities of his office because of his activities
on behalf of United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Local No. 1780.
WE WILL NOT interrogate you with regard to
your union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Randal Fansler, Robert Kelly,- or
Wendell Bridges immediate and full reinstatement
to their former positions or, if those positions- no
longer exist; to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
WILL' make them whole for any loss of earnings
and other benefits they may have suffered as a
result of our discrimination against them with inter-
est.
WE WILL remove from our personnel records all
references to the unlawful discharges of these em-
ployees and wE WILL notify them in writing that
this has been done and that evidence of the dis-
charges will not be used as a basis for future per-
sonnel actions against them.
BUCK BROWN CONTRACTING CO.,
INC. AND A.S.C. CONSTRUCTORS, A
JOINT VENTURE
Douglas Gallop, Esq., for the General Counsel.
Michael W. Foster, Esq., and Phillip M. Prince, Esq.
(ShimmeL Hill, Bishop & Gruender), of Phoenix, Arizo-
na, for the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. This
consolidated -proceeding was heard before me in both
Las Vegas, Nevada, and Phoenix, Arizona, on December
4 and 5, 1980,1 and January 54 and 26-28, February 2
and 3, and March 2-4, 1981. On August 16, 1980, the
Regional Director for Region 31 of the National Labor
Relations Board (the Board) issued an order consolidat-
ing cases, consolidated amended complaint, 'and notice of
hearing, based on unfair labor practice charges filed by
i Unless otherwise stated, all events herein occurred in 1980.
BUCK BROWN CONTRACTING CO. 493
Randal F. Fansler, an individual, in Case 31-CA-10035
on May 15, 1980; by Robert J. Kelly, an individual, in
Case 31-CA-10043 on May 16, 1980; by Wendell
Bridges, an individual, in Case 31-CA-10047 on May 19,
1980; by David Mark Doran, an individual, in Case 31-
CA-10141 on June 27, 1980; and by John Angle, an indi-
vidual, in Case 31-CA-10155 on July, 2, 1980, alleging
that Buck Brown Contracting Co., Inc. and A.S.C. Con-
structors, a Joint Venture (Respondent), engaged in acts
and conduct violative of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). During the
aforementioned hearing, the General Counsel was per-
mitted to further amend the instant consolidated amend-
ed complaint, alleging that Respondent also engaged in
acts and conduct violative of Section 8(a)(1) and (4) of
the Act. Both in an answer and at the hearing, Respond-
ent denied the commission of any unfair labor practices.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue their respective positions, and
to file briefs. Based on the entire record, on the' briefs
filed on behalf of the parties, and on my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
11
1. JURISDICTION
Respondent is a joint venture partnership , consisting of
Buck Brown Contracting Co., Inc . (Buck Brown, Inc.
and A.S.C. Constructors) and maintains an-office and
place of business at the Anaconda Mining molybdenum
mine construction project near Tonopah, Nevada, where
it is engaged in the construction of production facilities
for the operation of the mine . Respondent, in the course
and conduct of its business operations , annually pur-
chases and receives goods and . services valued in excess
of $50,000 directly from suppliers located outside the
State of Nevada. The consolidated amended complaint
alleges, Respondent admits , and I find that Respondent is
an employer engaged , in commerce and in a business af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
The consolidated amended complaint alleges, Re-
spondent admits , and I find that United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Local
No. 1780 (the Union) is a labor, organization within the
meaning of Section 2(5) of the Act.
III. ISSUES
1. About May 6, did Respondent discharge employee
Randal F . Fansler in violation of Section 8(a)(1) and (3)
of the Act?
2. About May 14, did Respondent discharge employee
Robert J. Kelly in violation of Section 8(a)(1) and (3) of
the Act?
3. About May 15 , did Respondent discharge employee
Wendell Bridges in violation of Section 8(a)(1) and (3) of
the Act?
4. About May 30, did Respondent discharge employ-
ees David Mark Doran and John Angle in violation of
Section 8(a)(1) and (3) of the Act?
5. Whether in late May or early June, Respondent re-
fused to reinstate employee Kelly to his former position
in violation of Section 8(a)(1) and (4) of the Act?
6. Did Respondent violate Section 8(a)(1) of the Act
by the following acts and conduct?
(a) About April 24, interrogating employees regarding
their union activities.
(b) In late April, threatening employees with discharge
for complaining about perceived violations of a collec-
tive-bargaining agreement.
(c) About May 7, threatening to cease doing business
because of employees' union activities.
(d) In early May, threatening to cease doing business
because of employees' union activities.
(e) In early May, reprimanding employees due to their
union activities.
(f)- About May 15, threatening to terminate employees
who cause union problems.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The setting
Respondent is a joint venture, comprising Buck
Brown, Inc. and A.S.C. Constructors, with the former
acting as the managing partner. Since March 1980, and
at all times material, Respondent, pursuant to it contract
with the general engineering contractor Bechtel, has
been engaged in the construction of certain portions of a
molybdenum mine for Anaconda Mining. The construc-
tion project is located in an and and remote section of
the State of Nevada, near the town of Tonopah that is
located approximately 200 miles from Las Vegas. With
other contractors, including Brown and Root, responsi-
ble for other sections of the facility, Respondent con-
tracted to construct the core portions of the mine facili-
ty: the crusher building, two reclaim tunnels, a radial
arm stacker, and a concentrator building.2 Each of these
structures is constructed of steel-reinforced concrete.
The record discloses that, in connection with the per-
formance of its work, ' as of the commencement of the
hearing, Respondent had employed approximately 370
employees, representing the various construction crafts
at the project, and that over half of the workers have
been carpenters, whose work 'consisted primarily of con-
structing the wooden wall forms of the building walls
into which the concrete is poured. The record further
discloses that Respondent's employees, as well as those
of other contractors, lived and worked under what chari-
tably may be termed as difficult conditions. As to the
8 When molybdenum production commences at the mine, freshly
mined earth will initially be deposited in the crusher building in which
the raw earth ore will be subjected to intensive pounding. From there,
the pulverized material will be sent to the reclaim tunnels for even more
intensive grinding Thereupon, the material will travel along the radial
arm stacker that deposits the unrefined material into piles. Ultimately, the
ore will be processed through the concentrator in which molybdenum
will eventually be extracted from the ore.
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
latter, besides the oftentimes hazardous natures of the
work, there were continuing problems caused by the
lack of cold drinking water and insufficient toilet facili-
ties and the' less than sanitary nature of the latter. As to
the former, given the distance of the project from Las
Vegas and the apparent lack of facilities in Tonopah, all
workers were forced to live as close as possible to the
jobsite. The area where project workers chose to park
their trailers and/or campers or otherwise set up tempo-
rary living facilities became known as the dry camp and
is located 3-4 miles from the mine. Respondent's Exhibit
31 shows this area to be flat and open, and Buck Brown,
the president of Buck Brown, Inc., described the site as
follows: "[I]t was pretty dry. There was no water, no
electricity, no sanitary facilities at all." According to
Brown, Respondent had no role in selecting the site as a
living area; the workers leased the area from the State of
Nevada. However, he did agree to provide the employ-
ees with drinking water for the camp, $9000 worth of
electrical equipment, and toilets that were taken from the
jobsite to the dry camp.4
The record establishes that neither Buck Brown, Inc.
nor A.S.C. Constructors is a Nevada corporation and
that the former is based in Arizona. Accordingly, as
Buck Brown, Inc. operated as the managing partner of
the joint venture, all Respondent's senior management at
the jobsite came from Arizona and worked there with
the cooperation of the Union. Among these individuals
were Jim Joy, the project manager. In this capacity, Joy
was responsible for overseeing Respondent's operations
at the jobsite, acting as the management spokesman at
safety meetings and at grievance meetings with union of-
ficials, approving the hiring of individuals, and acting as
the ultimate management authority in discharge cases.5
Directly beneath Joy in Respondent's managerial hierar-
chy at the jobsite and also from Arizona were General
Foremen Joe Lively and Sam Aiton Jr. (Aiton Jr.) and
Superintendent Sam Aiton III (Aiton III). These three
individuals, who, Respondent stipulated, were supervi-
sors within the meaning of Section 2(11) of the Act,
were responsible for work at designated areas of the
project and directly supervised the foremen in each re-
spective area,, assisting the latter with their job duties.
Beneath Lively, Aiton Jr., and Aiton III were the crew
foremen, each of whom was assigned a crew of workers.
8 For example, the work of the carpenters required the employees to
sometimes work at heights of, at least, 15 to 30 feet off the ground-
either standing on wooden scaffolding or dangling freely while supported
only by a safety belt. In view of this, safety appears to have been a major
concern of Respondent , with weekly meetings held for this reason attend-
ed by all supervisors and employees . Other matters concerning employee
working conditions were raised and discussed during the meetings.
4 Robert Fhnchum, Respondent 's business and office manager at the
jobsite, testified that there has been an unusually high degree of employee
turnover on the project. He opined that such was "probably due to the
remote area of the job , and working conditions . . . . Living accommo-
dations were nonexistent or very primitive at best."
5 Based on the record as a whole, I find Joy to be a supervisor within
the meaning of Sec. 2(11) of the Act. Further, I shall draw no adverse
inference ' from Joy's failure to testify at the hearing. It appears that, at
the time of the hearing, Joy was'working in Saudi Arabia and that Re-
spondent r was unable to contact him regarding testifying in its behalf. Ac-
cordingly, when testimony was offered as to Joy's conduct, I have par-
ticularly ' relied on the demeanor of the witnesses and the nature of'the
evidence in determining whether to credit such
Those carpenter crew foremen with, at'least, five car-
penter employees on their respective crews normally
performed no production work, responsibly directed the
work of their crewmembers, were authorized to arrange
transfers of employees between crews, and, most signifi-
cantly, seemingly possessed unfettered authority to termi-
nate employees. In this regard, the record further estab-
lishes that it was the practice of Jim Joy not to overrule
or otherwise undermine the authority of the crew fore-
men in discharge cases. Among Respondent's carpenter
crew foremen at relevant times were "Obie" Bodiroga,
Dennis Jensen, James D. Easter, Donald R. Davis, Bruce
Alford, and John P. Hendershot Jr.6
2. Respondent's relationship with the Union and
attitude toward employee-members thereof
The record reveals that a prejob conference was held
in Phoenix, Arizona, in late February; that such was at-
tended by managerial representatives of 'Buck Brown,
Inc. and A.S.C. Constructors; and that all aspects of the
forthcoming Anaconda Mining Tonopah project were
discussed. Buck Brown candidly admitted that Jack
Carney, the president of A.S.C. Constructors, demanded
that the project be done on a nonunion basis. Asserting
that he was a former union member and that his compa-
ny has never worked on an open shop basis and alluding
to Buck Brown, Inc.'s membership in the Arizona Asso-
ciated General Contractors and its status through the
membership as a signatory to collective-bargaining agree-
ments with several labor organizations, Buck Brown tes-
tified that he "felt pretty adamant about not doing that
[and] prevailed over Mr. Carney's strenuous ob-
jections" that the project should be on a union shop
basis . However, the testimony' of another" witness sug-
gests that self-interest rather than any pristine prounion
sentiments were involved in Brown's decision. Thus, ac-
cording to Robert Flinchum, after Carney set forth his
demand, Buck Brown replied that inasmuch as the
project was a great distance from "home, he wanted to
utilize union personnel as they would be the most quali-
fied.
In any event, Brown subsequently had a meeting in
Las Vegas with Elmer Laub, the business manager of the
Union, Cliff Kahle, an assistant business agent of the
Union, and representatives of the Teamsters Union and
the Operating Engineers Union. Brown told the union
representatives that although he personally wanted union
personnel doing the work on the project, he "was under
a lot of pressure from Anaconda and Bechtel and
[A.S.C.] to do the job open shop." During the ensuing
discussion, Brown learned that despite the aforemen-
tioned, his company might not be free from labor prob-
lems on the job. Thus,' Laub warned that "we could
probably expect a worse labor market situation in Las
Vegas than we were accustomed to working with' Phoe-
nix," explaining that the Union's membership included
"rebels" and "radicals." As to this, Brown requested that
6 The parties stipulated that Easter and Davis were supervisors within
the meaning of Sec. 2(11) of the Act. The same appears true as to the
others named , and I so find.
BUCK BROWN CONTRACTING CO. 495
"anybody that. would cause us any great . . . amount of
problems" not be dispatched to the job by the Union.
Subsequent to this meeting, Brown executed collective-
bargaining agreements with all the construction craft
unions, that between the Union and Respondent incorpo-
rated all the terms of the existing collective-bargaining
agreement between several Nevada Carpenters union
locals, including the Union, and the Nevada Associated
General Contractors (R. Exh. 3) with the exception of
the grievance and arbitration procedure (art. XV).7
The record further reveals that Respondent's project
manager, Jim Joy, capitalized on Buck Brown's com-
ments, regarding the pressure on Brown to perform the
job on a nonunion basis, utilizing this as a "sword of
Damocles" whenever union-related problems arose.8
Thus, on May 7, Joy met with Laub and Kahle and em-
ployee-job steward Mike Herndon with regard to the
discharge of employee Randal Fansler. During their
meeting , Laub mentioned a threat by union members to
picket the jobsite in protest of the discharge. According
to Mike Herndon, after discussion concerning the legali-
ty of such action, Joy leaned back .in his chair and said,
"Ali, well, we're just going to give it all to Brown and
Root."' Cliffe Kahle testified that after being told of the
possibility of a strike, Joy replied "that if things didn't
work out and the men didn't get back to work, the basic
thing that would happen was that Buck Brown, would
lose his contract . . . ." Joy added that the contract
would probably be awarded to, and he thereupon ges-
tured over his shoulder, toward a window behind his
chair, through which the Brown and Root yard was
plainly visible.9 I found Herndon and Kahle to be par-
ticularly credible and forthright witnesses and shall
credit them as to the occurrence of this incident, noting
that whether Joy mentioned Brown and Root or merely
gestured toward its yard is a distinction without a differ-
ence,10 In any event, the record also reveals that Joy re-
" Art. 4 of the memorandum agreement between the Union and Re-
spondent reads as follows:
4. The provisions of Section XV of the above described labor
agreement are excluded in their entirety from this memorandum
agreement and the terms and conditions of such Section XV shall
not apply in any manner to the union and the contractor signatory to
this memorandum agreement . In the event a dispute should arise
over terms of the agreement, the union and the contractor shall
make an effort to resolve such dispute. However, failing such resolu-
tion , the union shall have the right to take any legal or economic
action including, but not limited to, the right to withhold services of
carpenters, refuse to dispatch carpenters, or strike an employer re-
garding the interpretation or application of any term or condition of
the carpenters labor agreement or this memorandum agreement. This
paragraph shall not be applicable to the enforcement of Section III
of the labor agreement.
The Union was well aware of the position of Buck Brown. Thus, As-
sistant Business Agent Kahle testified that Brown's comments were
viewed as a "basic, open-shop threat '.... And when I'm talking about
the threat, that was the reason anytime anything happened up there that
was critical to our position . . . we would hotfoot it up there'. .. to
straighten the problem out before it did blow out of context."
9 Kahle testified that he was well aware that Brown and Root was the
largest nonunion construction' contractor in the United States and that the
meaning of Joy's gesture was not lost on the participants: "that was a
hammer that was used over the men's heads also."
10 Honest men may differ as to their memory of the same event. More-
over, although I draw no inference from Joy's failure to testify in general
and specifically about this incident, both Kahle and Herndon testified
peated-the identical threat at an early May safety meet-
ing. According to the credible testimony of Herdon,
while Joy was discussing the dry camp area, he said that
he had given permission for its use by the Brown and
Root employees "and that he didn't want any union
problems ... in the dry camp; and if there is any union
problems, either there or in the job, that the whole job
could go,to Brown and Root, that they're waiting to
take it all over."
Although Buck Brown denied repeating for his mana-
gerial staff at the jobsite Elmer Laub's warning that
among the Union's membership were "rebels" and "radi-
cals," the record discloses that Respondent's supervisors
did little to disguise their anger and contempt and uti-
lized blatantly coercive tactics to suppress such when-
ever carpenter-employees mentioned union involvement
in job-related disputes, complained about their working
conditions, or questioned supervisors about perceived
contract violations and that most often manifestations of
the foregoing were directed toward Job Steward Hem-
don, among whose duties was to present his member-
ship 's complaints to management . Herndon testified with
regard to several instances of such harassment. He re-
called an occasion in early May at which time while, re-
turning to his work area after speaking to employees at
the reclaim tunnels, he was approached by Jim Joy and
Aiton Jr. Each asked what he was doing there, and Joy
said that he did not think Herndon should be, walking
around the projects so much and that "he was going to
put me up on a hill where I could see the whole job
area, with an umbrella and a water can, and that's where
I would stay and sit for the whole 10 hours of the day."
Aiton Jr. did not deny this comment, and I credit the
forthright testimony of Herndon. On another occasion, a
concrete pour was under way at the crusher building.
Herndon approached the crew foreman, "Obie" Bodir-
oga, and asked the foreman if he wanted the men to take
a lunch break. Bodiroga replied that he did and that he
would oversee the pour in his crews' absence. Herndon
replied that a crew foreman was not permitted to take
possible overtime pay from a carpenter. Bodiroga there-
upon said that an employee would be assigned to', watch
the remainder of the pour and also said, "We don't want
to start a bunch of, union problems out here:" Bodiroga
did not, testify at the hearing, and I credit Herndon as to
this conversation.
Don Davis, on whose crew Herndon worked, appears
to have been the most vociferous of Respondent's super-
visors in reacting to Herndon's job-related complaints.
According to Herndon, his complaints to Davis usually
concerned working conditions" or the latter's habit of
that Joy Lively was present at this meeting; he failed to deny the forego-
ing testimony.
11 The record establishes that Herndon's complaints to working condi-
tions normally were directed to the lack of cold drinking water and the
unsanitary nature of the toilet facilities on the jobsite . The record further
establishes that both concerns were based on the collective-bargaining
agreement. Thus, sec . XVII(a) provides that both `Iced drinking water"
and "sanitary toilets" must be furnished by the employer on a jobsite at
all times.
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working with his tools.12 Thus, one day, after he had
been on the jobsite for approximately 1 month, Herndon
spoke to Davis regarding the latter's use of his tools and
the lack of decent working conditions on the project.
Davis replied, "`You crybaby, you complain all the time
about this. We're trying to get it worked out."' Thereaf-
ter, according to Herndon, on "a couple of dozen times
maybe" Davis repeated this comment after Herndon re-
ported employee job-related complaints. The latter re-
called one other particular conversation with Davis.
Herndon was in the midst of complaining to another
foreman about laborer-employees performing carpenter
work when Davis approached. Davis asked about the
nature of the complaint, and Herndon told him. Davis
replied, "Yeah, that will be carpenters work. But we
can't be starting all this union shit."'
Davis admitted that Herndon complained to him sev-
eral times regarding that lack of cold drinking water and
the unsanitary condition of the toilet facilities and that
Herndon also complained on occasion when Davis per-
formed work with his tools.13 Although he specifically
denied calling Herndon a "crybaby" for expressing these
admitted complaints, Davis' answers to the following
questions cast doubt on his denial and, most significantly,
illustrate Respondent's callous attitude toward its union
member-employees:
BY JUDGE LITVACK:
Q. Well, did you ever call anybody cry baby on
that project?
A. Yes.
Q. Who?
A. Yes, to the Nevada carpenters.
Q. Well you-
A. As a group.
Q. All right. Who did you make that statement
to?
A. Old Sam, young Sam, to Joe Lively, to lots of
people.
Q. Well to who?
A. I don't recall every person.
Q. Well, how many people did you tell that to?
Did you tell that to other carpenters?
A. I don't recall.
Q. Did you only make the statement to manage-
ment officials of Buck Brown?
A. I don't recall.
Q. But you do-all right, who were you referring
to when you made those statements? To anyone in
particular?
A. No.
Q. All right. Now to what were you referring
when you called the Nevada carpenters cry babies?
12 The record establishes that Davis never had less than five carpen-
ters on his crew . Sec. XXI of the collective-bargaining agreement, in
part, states that a foreman , with five or more journeymen on his crew,
may not work as a journeyman , except in assisting a ,journeyman or for
the purpose of instruction.
11 As to working with his tools, Davis asserted that such was limited
to "when I felt it was appropriate or needed to assist in the work or in a
teaching .. opportunity or when I had to show somebody how I
wanted the work done "
A. Their union contract is-a lot different than Ar-
izona's union contract and the circumstances that
were up there where we were in a remote area,-
and they expected to have when they came on the
job the exact same things they had in Las Vegas,
and when we were trying to suit that the best that
we could, all being out of state and starting to fa-
miliarize ourselves, Mike Herndon was a great help
in that he told us, you know, he brought things to
our attention, but I mean, a lot of the stuff that they
were crying about we were trying to work on and
they just kept harping and crying about. And the-
Q. Who is they?
A. The carpenters from the State of Nevada.
Q. Yeah, but were these complaints directed to
you personally?
A. No they weren't.
Q. So why were you using the term cry baby?
A. Because that is what I'thought they were, and
that is what I think they are still.
Q. Were you referring to Herndon when you
used that terminology? Was he being a cry baby, for
bringing those complaints to you?
A. No.
Q. Then who was the cry baby?
A. The Nevada carpenters.
Q. Okay, but not Mr. Herndon for bringing the
complaints to you?
A. Not Mr. Herndon for bringing the complaints.
Q. All right. So the people who brought the
complaints to Mr. Herndon were the cry babies?
A. Yeah.
Q. Did you have anyone in particular in mind
when you did that?
A. No.
Q. Did you have any particular incidents in
mind?
A. No.
Q. Did you have any particular complaints in
mind?
A. No.
Q. Then why did you say cry babies? What were
they crying about? Particularly, if you know?
A. I don't recall.
Q. But surely you had something in mind when
you were calling everyone-all these Nevada car-
penters cry babies. You must have had something in
mind.
MR. FOSTER: The witness is naturally trying to
assist Your Honor_ in getting to the facts, I am not
sure that he really knows what questions he is being
asked.
BY JUDGE LITVACK:
Q. Do you understand the questions I am asking
you?
A. Not really . I-I mean-
Q. You did call those people cry babies?
A. Yes.
BUCK BROWN CONTRACTING CO. 497
Q. All right. To management people and maybe
to others?
A. -I can't-
Q. Well, you either did or you didn't.
A. Yes, I called them cry babies.
Q. What I am asking you is what you were get-
ting at when you made those statements . What were
you referring to?
A. Is not a person entitled to his own opinion? Is
not a person entitled to free conversation with
somebody else?
Q. Whether you-
A. That was a-
Q. Go ahead.
A. That was a passing comment that they were a
bunch of cry babies, that-
Q. Excuse me, was that a common held opinion
by other management personnel of Buck Brown?
MR. FOSTER: Objection, Your Honor. How can
he answer that?
JUDGE LITVACK:
Q. Was it?
A. Yeah, we agreed on it.14
As between Herndon and Davis, I credit the testimony
of Herndon. As will'be more closely examined and fully
developed in regard to the discharge of employee Robert
Kelly, I was not, at all, impressed with the, demeanor of
Davis as a witness.
The record reveals that other supervisors also reacted
angrily and vituperatively to carpenter-employee com-
plaints regarding perceived contract violations. Thus,
Don Jackson and David Doran testified to a series of
conversations with Joe Lively, regarding the latter's al-
leged proclivity for performing carpenter work.1 s In
early March, according ,to Jackson, 2 days after starting
to work at the jobsite, he observed Lively loading mate-
rials and suggested to the latter that Lively have a car-
penter do such work. Lively replied that he was the boss
and could do what he wanted. Nothing more was said
between them; however, Jackson subsequently was
present on approximately four occasions during which
14 That Davis' admission was, in fact, Respondent's managerial re-
sponse 1e and opinion regarding carpenter employee complaints is clear
from the record. Thus, employee David Doran and Crew Foreman Don
Jackson, who is a member of the Union, testified about a conversation
between Jackson and General Foreman Joe Lively in late April. Accord-
ing to Jackson, who I found to be a particularly honest and candid wit-
ness, he was informed by another employee that Lively had labeled a
carpenter crew, of which Randal Fansler was a member, "a bunch of
crybabies because of their demands ...." Annoyed by Lively's suspect-
ed slur, after lunch that day, accompanied by Doran, Jackson confronted
Lively and "asked hind if he had called all the carpenters ... crybabies,
because ' of our demands . He looked me straight in the eye .. and
said, 'No. No,, I wasn't talking about you. It's the men down there,' point
to the reclaim , tunnel .... 'All they want to do is complain."' Doran
corroborated Jackson that the latter questioned Lively as to whether he
had characterized the Las Vegas carpenters as crybabies and that Lively
responded "that he was just talking about Randy Fansler and his crew."
Joe Lively testified in great detail with regard to other matters but did
not deny this conversation. Accordingly, I rely on the credible testimony
of Jackson that this incident occurred, noting the corroborative testimony
of Doran
15 Review of, sec. XXI of the parties' collective-bargaining agreement
discloses that general foremen are forbidden to work with their tools on
a jobsite.
Doran-commented to Lively about the latter doing car-
penter work. Jackson specifically recalled one such con-
frontation in mid-April when after both observed Lively
doing rank-and-file work, Jackson and Doran ap-
proached Lively. Jackson stated that he had observed
Lively doing carpenter work again and "I pleaded with
him, asking t o let us do the work f o r him .. , and that
he should do his job as a general foreman and it could
really help things get along ." Doran then repeated what
Jackson had stated, saying "that we believed things
would go much smoother." After "indicating he didn't
feel as though we had any legitimate complaint," Lively
walked away, Fifteen minutes later, he returned and
"said he'd like to have a heart-to-heart with us, man to
man. He said that we were his two best workers, he ap-
preciated the job we were doing, but that if we did not
stop our complaining, that he was going to get our
checks."16 To this, both Doran and Jackson said that
they wanted to do as much work as they could and
would not complain as much about Lively's activities;
Lively, in turn, responded that he would attempt to per-
form less employee work.
David Doran testified that he observed Joe Lively on
four occasions during April performing carpenter work,
normally either signaling to crane operators or hauling
materials . On the initial three instances, Doran told
Lively that if he needed more carpenters, Lively should
hire them rather than perform the carpenter work him-
self. After Doran's initial complaint, Lively replied that
he could do whatever he wanted but then said nothing
after the next two complaints. Doran testified that the
fourth incident occurred in late April. That morning,
Doran observed Lively performing facets of carpenter
work, and he and Jackson approached Lively, repeating
that he should hire more carpenters rather than do their
work. Lively apparently ignored theln; however, that
afternoon, Lively spoke to Doran and Jackson in the
yard area. "He told us that if we continued to complain
about him doing our work, he was going to have to get
our checks." Also,, "he had told- us that we were the best
carpenters he had on the job and he would hate to ...
get our checks for us but if we continued to complain
Lively, who testified that he had been a union carpen-
ter for 18 years, does not dispute that such a confronta-
tion occurred and stated that he had two conversations
with Jackson and Doran in March with regard to per-
forming union work. On the first occasion, he was rig-
ging panels when Doran and Jackson approached, and
both' said that he was required to stop doing the work.
Lively responded that he did not have to stop as he had
the right to do such work in Arizona and that he would
continue until a business agent ordered him to stop.
Doran replied that they would inform a business agent. 17
,16 Such appears to be an industrywide euphemism for a threat of ter-
mination.
17 Lively, who admitted being unaware, of the Nevada Carpenters
Union work rules, stated that in order to avoid a serious problem, he
asked Doran and Jackson to help him do the work-"And so I wasn't
taking any work away from a man "
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later, according' to Lively, when ^ three more panels
were ready to be loaded onto a truck, he again began
performing the rigging work himself. Just as on the pre-
vious occasion, Jackson and Doran questioned his right,
as a general foreman, to do carpenter work. Lively re-
plied, calling Doran and Jackson his two best` workers
and stating that although lie appreciated their efforts, he
wanted them to stop complaining. "And I told them that
the work was still there. If they wanted it, fine. If they
didn't want it, there was the office right over there, and
the guy didn't run out of ink; he could write a check for
them. That's exactly what I told him."18 Asked why he
threatened Jackson and Doran with termination, Lively
explained "because' we'd have a lot of problems at the
beginning of the job and having a hard time getting start-
ed and we couldn't afford to have any union 'problems."
Another supervisor who reacted in a similar manner to
"problems" caused by' members of the Union was Super-
intendent Aiton III. Wendell Bridges testified that imme-
diately after being notified of his own termination on
May 15 by Supervisor James Easter, he encountered
Aiton III near Respondent's office trailer. According to
Bridges,'he asked, "Wasn't my work satisfactory?" Aiton
III replied, "`That's not the point. I have to back my
foremen ' up .... Anyone that creates any problems
from now on is going down the road."' Bridges im-
pressed me, as being a candid and reliable witness, and
Aiton III, who testified at length as to other matters, did
not deny this incident. Accordingly, I credit Bridges as
to this matter, noting that the coercive comment by
Aiton III is , corroborative of the admissions of Don
Davis and illustrative of Respondent's attitude toward
members of the Union generally.," g
B. The Discharge of Randal Fansler
1. Facts
Randal Fansler had been a journeyman carpenter for
approximately 8 years prior to the instant hearing and a
member of the Union since April 1977. Having been re-
quested by name by Joe Lively, Fansler was dispatched
to work for Respondent at the Anaconda Mining jobsite
in Tonopah on March 28.20 At the time Fansler reported
to work at the mine project, there were only five or six
carpenter employees, including Don Jackson and Dave
Doran, working, and for the next 2 or 3 weeks they all
worked on the same crew, constructing wall forms for
the crusher building under the supervision of "Obie" Bo-
diroga.21 Fansler testified that about April 16 or 17
Lively announced that carpenters were needed for work
at the reclaim tunnels and that Bodiroga chose Fansler
and an apprentice to work at that area, with Lively as
the foreman. Two or three days later, Bodiroga spoke to
Fansler near the reclaim tunnels, said that Respondent
needed "a good man" to run things in that area, and
asked whether Fansler would take that responsibility.
Fansler refused. According to Fansler, 2 days later, on a
Friday, Bodiroga spoke to him again with regard to his
offer that Fansler assume responsibility at the reclaim
tunnels. Fansler replied that he had reconsidered and
would take the foreman position.
Fansler further testified that on the following Monday,
April 21, he spoke to Lively at the reclaim tunnels area
and that Lively gave him the job plans for that area "and
said he would get me more money." Although admitting
that neither Bodiroga nor Lively specifically stated that
he was being promoted to a foreman position, based on
the foregoing, the extent of his authority, and his job
duties, Fansler believed22 that he had been appointed as
the carpenter crew foreman at the reclaim tunnels2S and
1 Lively asserts that after specifically being advised by Union Offi-
cials Laub and Kahle that he was not permitted to do such work, he
ceased performing any rigging work on the project.
19 Counsel for Respondent argues ,that there is no evidence to support
a finding of general , antiunion animus on Respondent's part. He points to
Buck Brown, Inc.'s long history of stable labor relations in Arizona, the
absence of prior unfair labor practices , the fact that Respondent met with
union representatives on several occasions to settle disputes at the jobsite,
and Respondent's efforts to solve, or at least alleviate, the aggravating
cold drinking water and toilet facilities problems as evidence establishing
that Respondent harbored no antiunion animus. Contrary to Respondent,
tbelieve the weight of the above-described credited testimony and ad-
mission 's strongly suggests that' Respondent's supervisory staff at the-Ton-
opah jobsite, either based on forewarning by Buck Brown , or early diffi-
culties with the progress of work at the project, harbored a jaundiced
view toward members of the Union, who they universally viewed as
"crybabies" and were eminently capable of using blatant antiunion threats
in order to avoid union problems. Thus, notwithstanding' a history of
peaceful labor relations in Arizona, given the pressure that Buck- Brown
had been under to perform the job on an open shop basis and Respond-
ent's lack of familiarity with union attitudes and practices in Nevada, I
have no hesitancy in crediting the evidence adduced by the General
Counsel regarding Respondent's-general antiunion animus. Likewise, Re-
spondent's willingness to resolve jobsite disputes and to attempt to rectify
working condition problems can be traced to the terms of the -parties'
collective-bargaining agreement , which requires such resolution of dis-
putes and permits the Union to strike if disputes are not settled, and, thus,
to its own self-interests
20 The record discloses that Don Jackson was among the first group of
carpenters to be dispatched to work for Respondent in Tonopah ; that he
subsequently met Fansler and the latter expressed an interest in working
on the mine project; and that Jackson recommend the hiring of Fansler
to Lively.
Si After only 2 or 3 days on the job, Fansler was laid off due to a lack
of materials . According to Fansler , Lively assured him that he would be
recalled as soon as materials arrived . Indeed , Fansler was quickly re-
ferred'to the Tonopah jobsite on April 4 and began working again on
April 7.
22 Fansler testified that on April 21 and 22, he supervised the carpen-
ter crew's work on the reclaim tunnels, checking -that all form construc-
tion was performed in accord with Lively's instructions and making sure
that proper materials - weresupplied and utilized , The record establishes
such is the normal work of a foreman at the jobsite. Also in this regard,
Don Jackson testified that Fansler reported to him that Fansler had been
given a foreman position by Respondent.
23 Contrary to whatever Fansler believed, Joe Lively testified that not
only did the former specifically refuse to become a foreman , but also
Fansler had ultimately been offered-and accepted-a leadman position.
According to Lively, inasmuch as- Bodiroga planned to be absent from
the project for a short period and in recognition of his superior work,
Fansler `was offered a foreman ,lob by first Bodiroga and then Lively.
However, "he told us flatly. He said, I don 't want the foreman 's job." At
that point, continued Lively, "I- said, well, I'll just make it right by
paying you more money and just call you a leadman. So that's what we
did." Lively added, "And we also told him that we were just starting to
build this thing and that if he produced . . . he would probably have a
crew all of his own ..
BUCK BROWN CONTRACTING CO.
worked that day and the next under that assumption. By
the following Wednesday, April 23, the carpenter crew
under, Fansler had increased from four to six employees.
Therefore, on that day, prior to 9 a.m., Fansler ap-
proached Lively in the reclaim tunnels area and an-
nounced that he would no longer use his tools as there
was more than the contractual quota of four men on his
crew. Lively replied, "`You're not a foreman. I'm giving
you welder's pay."' Fansler responded that if such was
his wage rate, he did not want supervisory responsibility
and that he would rather work with his tools. Lively left
the area, and Fansler announced to his crew that he was
not a foreman as he was no longer being paid a fore-
man's wages;24-that he no longer wanted the duties of a
foreman; and that the crew should look elsewhere for su-
pervision.
The record establishes that later that morning during a
break period, Fansler spoke to Job Steward Herndon and
complained that Lively was not properly compensating
him for his job duties as a foreman . Fansler explained
that he thought he had been performing foreman duties
and believed he was, in fact , a foreman and said that he
wanted the matter resolved. Shortly after lunch, Hern-
don reported back to Fansler that he had not received a
satisfactory explanation from Respondent and that he
had spoken to Elmer Laub, who would visit the jobsite
the next day. Two hours later, at approximately 2 p.m.,
Lively approached Fansler in the reclaim tunnel area.
According to Fansler, Lively "asked me why I had
come in contact with [Herndon]." Fansler replied that
when anyone tried "to screw" him out of pay, he was
entitled to speak to the job steward in order to resolve
the matter. Lively responded, "Well, all you Las Vegas
carpenters are a bunch of crybabies anyway." After
Fansler tried to defend the reputation of the Union,
Lively turned and walked away. Later that afternoon,
according to Fansler, in an obvious attempt to assuage
Fansler and defuse a potential problem for himself and
Respondent, Lively spoke to Fansler and apologized,
stating that the foregoing resulted from a misunderstand-
ing, that Fansler was a good worker, and that Lively
hoped that Fansler did not quit.
Lively's efforts were too late and to no avail, for
Union Officials Laub and Kahle visited the jobsite the
next day. According to Kahle, he and Laub spoke to
Lively that morning, raising the matter of Fansler's
status as a foreman and his payment in that job classifica-
tion. Lively replied "That Randy was a good hand and
that he would like to give him the pay, but his manage-
ment wouldn't allow him to pay the extra money on the
situation." However, Lively did agree to make up what
Fansler lost "in the guise of overtime pay," and Laub
said that he would speak to Fansler. Kahle further testi-
fied that Laub presented the settlement to Fansler and
that the latter accepted the bargain. Thereupon, accord-
24 According to the union collective-bargaining agreement job classifi-
cation and wage rate schedule , "the hourly wage scale for foreman shall
not be less than 10 percent more than the hourly wage scale of the crafts-
men over whom they have supervision." Further, as of April 23, a car-
penter welder earned 35 cents more per hour than a journeyman carpen-
ter. As Fansler testified, he expected to earn more than what Lively ap-
parently was willing to pay.
499
ing to Fansler, he and Laub met with Lively in the re-
claim tunnel area. Lively repeated what he said the pre-
vious afternoon-apologizing and saying it was all just a
big misunderstanding. "He shook my hand, said that
we'd get the pay matter straightened out for the three
days that I was foreman through welder's pay . . . and
that he again hoped I wouldn't quit and needed me as a
worker on the project." Fansler admitted that this settle-
ment was a "satisfactory" resolution of the problem; that
by his termination date, he had received all the payment
which, he believed, was due him; and that I never had
another cross word with [Lively]."
Lively's version of ' the resolution of the aforemen-
tioned dispute differs substantially from that of Fansler
and Kahle. He testified that shortly after Fansler accept-
ed the leadman position, while Lively was driving
toward the crusher building, he observed Fansler talking
to Herndon at least 100 yards from Fansler's work area.
Later, Herndon approached Lively and said that there
was a problem with Fansler because "he's short some
money." Lively replied that the matter could be straight-
ened out because money is not a problem. Thereupon,
according to Lively, he spoke to Fansler who appeared
to be upset. "I asked him ... Mike says you got a prob-
lem." Fansler responded that "his pay was all messed
UP. 1125 Lively replied that such could be easily correct-
ed.26 "And I took him in the truck over to the office
and between Flinchum and I, we got it straightened
out.,, Lively specifically denied the involvement of the
Union in this matter-"[t]he Union officials didn't have
anything to do with it."27
85 Fansler and Lively contradict each other not, only as to conversa-
tions regarding the pay dispute but also as to the basis of the dispute.
Thus, to Fansler, the matter concerned his job classification and accom-
panying wage rate; although Lively testified that the dispute merely con-
cerned Fansler's receiving the wrong amount of wages As between
Fansler and Lively, I credit Fansler inasmuch as he impressed me as
being a more truthful and forthright witness than Lively. Accordingly, I
credit Fansler that the dispute concerned his entitlement to be paid at the
foreman's wage rate. Further, notwithstanding that he may not have
specified that Fansler would be placed in a foreman position, I do not
credit Lively that he offered , and Fansler accepted , a'leadman position at
the carpenter welder wage rate . In this regard, I note that there is no
such classification in the union contract; that Fansler ,, who exhibited a fa-
miliarity with the terms of the agreement, would not , I believe, have ac-
cepted promotion to a nonexistent position ; and that Lively, who admit-
ted no, knowledge of the union contract , stated that there was not even a
leadman classification in the Arizona Carpenters Union contract. Based
on the foregoing, what is clear is that after he -spoke to Lively on April
21 and after the latter handed the job plans to Fansler on that date,
Fansler possessed a good-faith belief that he was the carpenter foreman at
the reclaim tunnels.
26 Lively denied that Fansler was a crybaby for going to Herndon
with his problem but admits, "I asked him why he didn't discuss it with
me first."
27 Lively did admit that his resolution of Fansler 's pay problem was
disclosed to union officials-"That was mentioned , but we told them im-
mediately it had already been taken care of" Lively places this disclosure
at a time of , a dispute with the Union over subsistence payments to union
members. Such a meeting did take place, with Respondent ultimately
agreeing to apply a double time rate but not agreeing to the Union's in-
terpretation' of the collective-bargaining agreement . However, whether
Lively discussed the Fansler problem is highly doubtful inasmuch as, ac-
cording to R. Exh. 25, the subsistence dispute was apparently resolved
about April 11-at least 10 days prior to the date Fansler was placed in
charge of the carpenter crew at the reclaim tunnels.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have previously noted that Cliff Kahle impressed me
as being an honest and candid witness and as -between
Fansler and Lively, I found the former to have been the
more , honest and forthright . Accordingly , I credit the
testimonies of Fansler and Kahle as to resolution of the
pay dispute-particularly with regard to the Union's in-
volvement therein . 28 I further note that Lively asserted
that he and ,. Flinchum; Respondent 's office - manager, re-
solved the Fansler matter . However, Flinchum, who tes-
tified with regard to his involvement in several payroll
disputes , did not corroborate Lively as to this matter.
After the resolution of his wage dispute , Fansler con-
tinued working at the reclaim tunnels on the carpenter
crew. Approximately I week later , , Lively informed
Fansler that he was needed by Bodiroga to work on the
latter's carpenter crew at the crusher building while con-
crete pours were ongoing and that when these were
completed, he would be transferred back to the reclaim
tunnels crew . Thereafter, until his discharge, Fansler
worked on the crew that was supervised by Bodiroga.
According to Fansler, during this time period he spoke
to Bodiroga and Lively several times about returning to
the reclaim tunnels area and both said that he could ulti-
mately do so . 29 Finally, in the afternoon of May 5, Bo-
diroga told Fansler "that I was going to be transferred to
the other crew shortly 'and he hated to lose me."
Fansler testified that at ' approximately 12 noon on May
6, Bodiroga informed him that he should have his tools
ready" by 2:30 p.m. as he would be transferred to Don
Jackson's crew . Thereupon, Lively approached him in a
pickup truck at that hour; Fansler loaded his tools in the
back and got in. Contrary to his expectations , Lively
handed him a check and a termination notice, saying
"Here's your money."30 After studying the notice,
Fansler asked why he-was being terminated "in that he
knew , darned ' well that I was a qualified workman
" Lively replied "that he ,didn't need a ` reason to
fire me, that my job was ended and that was that."
Lively stopped the truck in the parking lot . Fansler got
out, noticed Herndon ' standing nearby , and asked the
latter to ascertain the reason for Lively's' action . There-
upon, Fansler accompanied Herndon over to Lively, and
Herndon asked Lively for an explanation . Lively replied
23 This, I believe, constituted Lively's second dispute with the
Union-first being his rebuke from union officials regarding his practice
of performing unit work, including the rigging of panels. The record es-
tablishes that as a union member, Lively was well aware of the possibility
of fines for violating union work rules. -
29 When Fansler was transferred to Bodiroga 's crew, Don Jackson
was promoted to foreman over the carpenter crew at the reclaim tunnels.
Jackson credibly testified that he immediately requested that Lively
transfer Fansler back to his crew and that Lively agreed, saying he
needed Fansler at the crusher building because of a manpower shortage
there and Jackson could have Fansler on his crew `once they got
squared away ..... Jackson further testified that he renewed his re-
quest for Fansler about 10 days later and that Lively replied that the
work,on the crusher building was almost completed and Fansler would
be placed on Jackson's, crew that afternoon or as soon as possible Ac-
cording to Jackson , Lively said nothing about problems with Fansler's
work either in these conversations,or at any supervisory meetings, during
which Lively did complain about other employees. Lively did not deny
this testimony.
30 The termination notice bore a checkmark next to the notation, "Too
slow-poor work."
that he did not need a reason-Fansler was fired and that
was the end of it. -
Meanwhile, a supervisory meeting was scheduled for
that afternoon. Several foremen were already assembled
in Respondent's trailer when Don Jackson arrived. He
immediately was informed that Fansler had been termi-
nated that afternoon; when Lively walked in, Jackson
asked him what had happened and for an explanation.
According to Jackson's - credible testimony,' Lively re-
plied that he did not want to talk about it; Fansler had
been fired, "that's it." Jackson said, "`You just have a
personal problem with Mr. Fansler . . ."; Lively re-
sponded, "`Yes; I do."' Jackson thereupon said that he
had specifically requested certain men for his crew; that
Lively had agreed; and "that if he didn't hire Mr.
Fansler back, that if he didn't put him on my crew, that
I would quit . . . ." Lively just shrugged his shoulders
and said okay.31 Jackson stormed out of the meeting and
met Jim Joy as the latter was walking toward the trailer.
Jackson explained what had happened and asked Joy to
rehire Fansler. Joy "told me that he . . . did not want to
override Mr. Lively's decision,"
After speaking to Herndon and Lively, Fansler re-
turned to the dry camp and began informing other car-
penters of his discharge. Previously angered over per-
ceived contract violations, including the lack of cold
drinking water and sanitary toilet facilities, the carpenter
employees became incensed over what they, believed
constituted an unjustifiable dischar a and calls for a
wildcat strike ensued . That night, Fansler telephoned
Laub, in Las Vegas and requested that he and Kahle
come to Tonopah- as soon as possible.
The record establishes that both ''Laub and Kahle vis-
ited the jobsite and dry camp the next day (May 7) and
that their major concern, in view of the perilous =nature
of the Union's, relationship with Respondent, was ' the
possibility of a wildcat strike over Fansler's termination.
Thus, according to, Kahle , investigating the strike threat
was his and Laub's main - concern that day. Kahle testi-
fied that on arriving at the mine project he, Laub, and
Herndon met with Jim Joy and Lively in Respondent's
office trailer. Regarding Fansler, Lively stated that
Fansler "had, dropped the ball" since the union officials
had last been on the, project. Kahle asked, why, inas-
much as 2 weeks before Lively said that Fansler was a
topnotch hand. Rather than offering an explanation,
Lively repeated that Fansler had just "dropped the ball"
after acting as foreman, Laub then stated that he want to
patch up all differences and to have Fansler return to
work. Joy responded that, he would back up his men and
that when a decision was reached, he would back them
"100 percent." At thatLpoint, according to Kahle and as
described above, the discussion concerned the possibility
of a wildcat, strike. The meeting concluded with a discus-
sion of the drinking water and toilet problems and Re-
spondent's efforts to correct these. While stating that
Afton Jr. also attended, the meeting, Herndon's testimony
regarding what was discussed is corroborative of Kahle's
version. According to the job steward, the meeting
31 Lively failed to deny this conversation.
BUCK BROWN CONTRACTING CO.
began with Kahle raising certain problems regarding
working conditions-including the lack of cold drinking
water and the unsanitary toilet facilities. Joy replied that
Respondent was , trying to obtain an, ice machine and
have the outhouses cleaned more frequently. Kahle then
mentioned Fansler and asked if he could be reinstated
onto another crew, under a new foreman. "Joy said that
it was his foreman's decision to terminate him and that
he was going to back his foreman's decision on that
matter." Laub responded that Fansler had been offered a
foreman's job 2 weeks earlier and that he did not under-
stand why he was now being terminated for poor, slow
work. Lively replied "that in that two week period he
had just changed his attitude toward the whole job any-
more." Thereupon, after discussing the employees' threat
of a wildcat strike,, as described above, Joy agreed that
Don Jackson could return to work as he performed well
as a foreman and Respondent Wanted him baCk.32
Denying that the pay dispute, at all, influenced his de-
cision, Lively stated that Fansler was discharged "be-
cause his work had ceased almost . From the time that
the incident happened ... he steadily progressed down-
hill. He wouldn't do anything that you programmed him
to do. He would do it, but it was slow and just an atti-
tude that you can't live with when you're trying to build
something." As an example, Lively testified that on one
occasion, he approached Fansler and observed the latter
just standing there, looking around. When he asked why,
Fansler replied that he needed "some 4 x 4's." Lively
further testified that a stack of such pieces was located
no more than 20 to 30 feet from where Fansler stood.
Admitting that, as was his practice, he never discussed
what he noticed about Fansler's deteriorating 'work
habits with the latter, Lively testified that he did speak
to Fansler on one occasion subsequent to the resolution
of the pay dispute: "I asked him ... if he still had any
bad feelings . . . about, the money or anything else. And
he said, no. But he didn't produce."33 Finally, Lively
corroborated Fansler that the latter was extremely upset
over the reason for his termination , saying, "I don't un-
derstand how you can do that ...." 34 ,
Regarding his work after having been transferred to
Bodiroga's crew on the crusher, Fansler testified that the
former praised his work many times. ,Further, according
to Fansler, he did things "beyond the call of duty" such
as spotting a bad tie rod and reporting it.' He denied ever
having been told what to do. Corroborating Fansler, car-
penter Charles ,DeLong, who reported for work at the,
jobsite on approximately -April 21 and worked alongside
32 Fansler testified that Kahle and Laub came to the dry camp after
speaking to Joy at the jobsite. No work was performed that day because
of inclement weather conditions . The carpenters were gathered in a
group, and after the union officials arrived, Laub reported on his meet-
mg. He announced that Respondent would ' rehire Jackson but not
Fansler. When calls for a strike ensued , Laub calmed them, advising that
a strike would be detrimental to, their , and the Union 's, interests.
33 Apparently this conversation , occurred prior to Fansler's transfer to
Bodiroga's crew, for , according to Lively, the move , was influenced by
his hope that Fansler would improve.
3' As to whether at the time of, Fansler 's discharge, he was aware that
Fansler had received all the extra wages to which he was entitled , Lively'
testified, "I think he'd received it the week before if I'm not mistaken
because it wasn't that much."
501
Fansler at the crusher building, testified that Fansler was
a very good carpenter and that he heard no foreman
ever complain about his work. Also with regard to
Fansler's job performance, Mike Herndon, who was on
the carpenter crew at the crusher building, testified, "I
thought he was a good carpenter and a knowledgable
carpenter."
The General Counsel contends that a cause of
Fansler's termination was his complaining about the job-
site toilet facilities during the weekly safety meetings.
According to Fansler, these meetings were held each
Monday and were attended by all employees, including
the entire supervisory staff. Jim Joy conducted the ses-
sions; the purpose was twofold-to,discuss, promote, and
improve safety conditions and to "air" employee gripes
and job complaints. Fansler further testified that employ-
ees generally complained about the less than adequate
toilet facilities, the lack of cold drinking water, and other
perceived contract violations. He stated that he was one
of the complainers and that he spoke up at several meet-
ings regarding the number of and the condition of the
toilets on the jobsite . During cross-examination, Fansler
admitted that several other employees raised the identical
complaint and that his complaints did not "stand out."-
"I just said, `Hey, the toilets stink . They're not clean."'
2. Anaylsis
The consolidated amended complaint alleges that
Fansler was discharged by Respondent in violation of
Section 8(a)(1) and (3) of the Act. The General Counsel
contends that Fansler was terminated by Respondent for
having engaged in protected concerted activities, includ-
ing complaining about the lack of and unsanitary nature
of the jobsite outhouse facilities, demanding foreman's
wages, and involving his job steward and ultimately the
Union in the latter dispute. Counsel further contends that
Lively harbored animus -toward members of the Union
and that the reasons that were advanced by Respondent
for Fansler's discharge are pretextual in nature. Contrary
to the General Counsel, Respondent argues that there
exists no record evidence of animus towards Fansler in-,
asmuch as his pay dispute was satisfactorily resolved and
apparently not a subject of contention at the time of his
discharge. Further, it is argued that Fansler was termi-
nated for cause and not based on his involvement with
the Union or other protected concerted activities.
As recognized by the parties, a determination of the le-
gality of Fansler's discharge and, indeed, that of the
other alleged discriminatees is governed by the tradition-
al precepts of Board law in Section 8(a)(1) and (3) dis-
charge cases, as modified by the Board's decision in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981). Thus, in order to establish a prima facie
violation of Section 8(a)(1) and (3) of the Act, the Gen-
eral Counsel must establish (1) that the individual en-
gaged in union or other protected concerted activities;
(2) that the employer had knowledge of the activities; (3)
that the employer's actions were motivated by union
animus; and (4) that the discharge had the effect of en-
couraging or discouraging membership in a labor organi-
zation . WMUR-TV,, 253 NLRB 697, 703 (1980). Further,
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the General Counsel has the burden of proving the
aforementioned by a preponderance of the evidence.
Gonic Mfg. Co., 141 NLRB 201, 209 (1963). Although
the aforementioned analysis was easily applied in cases in
which the employer's motivation was straightforward,
conceptual problems arose whenever dual motivation
was involved-the presence of both a lawful cause and
an unlawful cause for the discharge. In order to resolve
this ambiguity, in Wright Line, supra, the Board estab-
lished the following causation test in all 8(a)(1) and (3)
cases involving employer motivation. "First, we shall re-
quire that the General Counsel make a prima facie show-
ing sufficient to support the inference that protected con-
duct was a `motivating factor' in the employer's decision.
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct." Id. at 1089. Two points are relevant to the forego-
ing test. First, in concluding that the General Counsel
has established a prima facie violation of the Act, the
Board will not "quantitatively analyze" the effect of the
unlawful motive. The existence of such is sufficient to
make a discharge a violation of the Act. Id. at 1089 fn.
14. Second, although apparently warranting the identical
analytical approach, pretextual discharge cases should be
viewed as those in which the "defense of business justifi-
cation is wholly without merit." Id. at 1084 fn. 5.
Herein, there can be no question that Fansler engaged
in union and other activities protected by the Act. Thus,
I have previously concluded that, although unstated,
Fansler believed in good faith that he had been promot-
ed by Lively to the position of foreman;35 that Fansler's
demand for higher wages was based on the formula for
determining the wage rate for a foreman as set forth in
the Union's collective-bargaining agreement; that Fansler
sought and obtained the aid of the Union in his ,pay dis-
pute with Respondent; and that union officials were in-
strumental in concluding a settlement of the dispute with
Respondent. The Board has long held-and Respondent
concedes-that in seeking an employer's compliance
with the terms and conditions of an existing collective-
bargaining agreement, an employee engaged in union and
protected concerted activities within the meaning of Sec-
tion 7 of the Act and that an employer engages in con-
duct violative of the Act by disciplining an employee for
the activity. NLRB v. Pioneer Concrete Co., 637 F.2d 698
(9th Cir. 1981); City Disposal Systems, 256 NLRB 451
(1981); Corry Jamestown Corp., 238 NLRB 320._(1978);
Adams Delivery Service, 237 NLRB 1411 (1978); Roadway
Express, 217 NLRB 278 (1975). This is so notwithstand-
ing that an employee may act on an individual basis, for
complaints under a contract are to ,the interest and bene-
as,I specifically reject the argument of counsel for Respondent that
Fansler could not have believed that he had been promoted to the posi-
tion of foreman. This argument is solely based on Fansler's admission that
neither Bodiroga nor Lively uttered the word "foreman " to Fansler.
However, Fansler credibly testified that on April 21 and 22 he performed
all the duties that are associated with that position. Further, I have dis-
credited the testimony of Lively that Fansler accepted promotion to a
leadman position . Finally, and most significantly, based on the Union's
collective-bargaining agreement, there exists no other position but fore-
man to which Fansler could have been promoted inorder to "run things"
at the reclaim tunnels area.
fit of, all employees and the punishment of a complaining
employee necessarily,may tend to inhibit other employ-
ees from, -implementing the protections afforded by a
union contract. Bay-Wood Industries, 249 NLRB 403,
406-407 (1980); Corry Jamestown, supra at 323; Delta
Electric, 236 NLRB 1108, 1112 (1978). Further, the
merits of the employee's complaint- are irrelevant. G & M
Underground Contracting Co:, 239 NLRB 78 (1978); Per-
renoud, Inc., 236 NLRB 804, 805 (1978); United Parcel
Service, 234 NLRB 483, 491 (1978). The Board has also
long held that efforts to enlist the assistance of a union in
raising complaints concerning working conditions or
grievances under a collective-bargaining agreement con-
stitute union and protected concerted activity and that
disciplining an employee for doing so interferes with, re-
strains, and coerces employees and tends to discourage
union activities in violation of Section8(a)(l) and (3) of
the Act. Harper & Arterburn Co., 255 NLRB 760 1981);
Perrenoud, Inc., supra; Interboro Contractors, 157 NLRB
1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
Respondent further concedes-and the record clearly
establishes-that it was well aware of Fansler's contrac-
tual assertion and the Union's role in the dispute. What
Respondent disputes is the assertion of the General
Counsel that the aforementioned were the motivating
factors in Lively's decision to discharge Fansler. Close
scrutiny of the record establishes the existence of ample
evidence of union animus . Initially, I reiterate my prior
conclusions that Respondent's supervisory staff generally
viewed members of the Union as "crybabies" for con-
stantly complaining about, perceived contract violations
and that supervisors utilized blatantly coercive threats to
dissuade union employees from engaging in protected ac-
tivities. Specifically, as to Joe Lively, I have credited the
testimony of Don Jackson,, as corroborated by David
Doran, that Lively threatened to terminate them if they
did not stop complaining that he was performing carpen-
ter work in violation of the collective-bargaining agree-
ment. In this regard, Lively admittedly complied only on
being informed by union officials that to continue to do
so would be in violation of the Union's work rules,
which, he was well aware, would subject him to the pos-
sibility of fines. That the involvement of the Union in
work disputes was an anathema to Lively is clear from
his comment to Fansler (why didn't Fansler come to him
first) on learning that the latter had complained to job
steward-and union agent-Herndon about his wage dis-
pute. In that same conversation, Lively called Fansler
and the other union employees "crybabies." I specifically
credit Fansler's uncontroverted testimony in this regard,
noting that Lively did not controvert the testimonies' of
Jackson and Doran that Lively later repeated this same
epithet to Jackson,. Finally, in agreement with the Gener-
al Counsel, I found wholly incredible Lively's testimony
in which he attempted to minimize the involvement of
the Union in Fansler's wage disputer Not only is such at
utter variance with the credited testimony but also it
clearly buttresses the contention of the General Counsel
that the involvement of the Union in Fansler's dispute-
and the concomitant possibility of internal union disci-
BUCK BROWN CONTRACTING CO.
pline for his conduct-was the motivating factor in Live-
ly's discharge of Fansler.
Respondent makes two main arguments in support of
the lack of union 'animus. First, counsel contends that
Fansler's wage dispute was settled and no longer a
matter of controversy when Fansler was terminated. In
this regard, counsel points out that both Fansler and
Kahle testified that the pay dispute was satisfactorily re-
solved; that, according to Fansler, Lively was apologetic
to him and to the union officials over the problem; that,
according to Fansler, his relations with Lively after the
settlement of the dispute were extremely cordial; and
that both Herndon and Kahle testified that Lively men-
tioned Fansler's deteriorating job performance as the
reason for his discharge. Although quite cogent and logi-
cal, I nevertheless am not persuaded by these arguments
for the following reasons. Lively did not deny Don Jack-
son's credible testimony that at a supervisor's meeting
subsequent to, Fansler's discharge, in response to Jack-
son's comment that Lively had a personal problem with
Fansler, Lively said, "`Yes, I do."' I find this comment
to constitute, in effect, an admission, for I believe it more
likely that Lively would be candid as to the true reasons
for his conduct in the "friendly" atmosphere of a super-
visor's meeting than in the "adversarial" atmosphere of a
meeting with union officials. Again, Lively's attempt to
minimize the involvement of the Union in the pay dis-
pute strongly supports this view and suggests, that such
was, indeed, his personal problem with Fansler. Further,
in agreement with the General Counsel, aware of the
possibility of internal union disciplinary procedures,
Lively's apologetic attitude toward Fansler and the
union officials at the settlement meeting and his later
cordial attitude toward Fansler is not surprising. Re-
spondent's second contention concerns the timing of, the
discharge, occurring at least 12 days after resolution of
the pay dispute and at a time when such was "seemingly
a dead issue." This, I believe, obfuscates the true issue,
for rather than the dispute itself, the record' establishes
that Fansler's involvement of the Union' in the matter
was the motivating factor in his,discharge. Also, accord-
ing to Fansler, his discharge coincided with the comple-
tion of Respondent's compliance with the terms of the
pay settlement, a fact, the record reveals, about which
Lively. was apparently aware. Finally, a lapse of time be-
tween displays of animus and a discharge does not, with-
out more, negate substantial evidence of unlawful
animus . Lauderdale Lakes. General Hospital, 227 NLRB
1412, 1413 (1977). Based on the foregoing," and the
record as a whole, I believe that the General Counsel
has made a prima facie showing that Respondent's deci-
sion to terminate Fansler was based on unlawful consid-
erations-his involvement of the Union in his wage dis-
pute with Joe Lively.37
86 I note Respondent's reliance on Vogt-Conant Co., 248 NLRB 500
(1980), as support for its arguments regarding the discharge of Fansler.
Suffice to say, if I viewed the facts as urged by counsel, the decision
would be determinative. I believe the record clearly supports-and war-
rants-the conclusion that Respondent did, indeed, harbor animus to-
wards Fansler for his actions.
97 I place no reliance on Fansler's "complaints" at Respondent's
weekly safety meetings as a motivating factor for his discharge. Thus, his
503
The burden of proof, thus, shifted to Respondent to
demonstrate that it would have reached the same deci-
sion and taken the same action notwithstanding ]Fansler's
protected concerted activities. In establishing its defense,
Respondent relies solely on the uncorroborated testimo-
ny of Lively who testified that after the resolution of the
pay dispute, Fansler's job performance "steadily pro-
gressed downhill" and his work was slow. The only ex-
ample that Lively was able to relate was an incident
during which Fansler, apparently ignorant of a, nearby
supply of wood, stood helplessly, unable to locate a 4 by
4 piece of wood. Analysis of the record convinces me
that this evidence is pretextual and wholly without merit.
Initially, as I have previously stated, Lively did not im-
press me as being a particularly honest or candid witness,
and I cannot credit his testimony. In this regard., Lively
did not controvert the credible testimony of Don Jack-
son that, while identifying several other bad workers,
Lively never once complained about Fansler's deteriorat-
ing work quality and, in fact, on two occasions promised
that Fansler would be transferred to Jackson's crew
when work permitted. Also, if Fansler's work was dete-
riorating, it is strange that Lively would not speak to the
former and either ascertain why or warn him to improve
or face discharge. Yet, Lively admitted not doing so, and
I cannot accept his explanation that, he normally left
such problem employees alone. , In , this regard, Lively
could not even give an, explanation to Herndon and
Fansler for the latter's discharge. Further, the individual
who was most closely aware of Fansler's job perform-
ance prior to his discharge was his foreman Bodiroga.
Yet, Respondent failed to call him as a witness to cor-
roborate Lively's unsubstantiated testimony. Presumably,
he would not have done so.38 Finally, several witnesses
testified to the quality of Fansler's work as a carpenter,
stating such was of a high quality. Accordingly, I do not
believe that Respondent has met its burden of proof as to
the discharge of Randal Fansler and conclude that he
was discharged in violation of Section 8(a)(1) and (3) of
the Act.39
conduct was hardly disruptive or outstanding , and Fansler admitted that
his toilet complaints merely echoed those of numerous other employees.
311 Utilizing the Wright Line, supra, rationale , it was Respondent's
burden to establish that Fansler would have been discharged notwith-
standing his union activities, and it was, therefore , Respondent 's obliga-
tion to all its own corroborative witnesses . In this regard, it cannot be
said that Bodiroga would have been a neutral witness , for as Respond-
ent's foreman , he presumably was under the control of that party. I am
not unmindful of the Board's recent dicta in Wayne Construction, 259
NLRB 571 at fn. 1 (1981), but note that the cited decision involves a neu-
tral employee witness. Bodiroga can hardly be so considered. See Color-
flo Decorator Products, 228 NLRB 408, 410 (1977),
as Counsel for Respondent points to the testimonies of Herndon and
Kahle as corroboration for Lively's, explanation for Fansler's discharge. I
do not agree. Although both testified that, during the meeting subsequent
to the discharge with Lively and Joy, the former explained that Fansler
was discharged because of deteriorating work , in light of Lively 's admis-
sion to Jackson that there was a personal problem between Fansler and
himself and Lively 's statement to Fansier at the time of the discharge that
Lively did not need a reason to fire Fansler, I believe that Lively was
less than candid in his reply to the union officials on 711 Gay 7.
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. The Discharge of Robert Kelly
1. Facts
Robert Kelly, who has been a carpenter by trade for
10 years and a member of the Union for approximately 3
years, visited Respondent - at the Tonopah jobsite on
April 23, accompanied by two other carpenters. They
spoke to Lively and Aiton Jr. and the latter took their
names and telephone numbers. Kelly was called "by
name" the next day at the Union's hiring hall and was
dispatched to work for Respondent at the mine project.
He reported- for work that same day (April 24) and
worked until his discharge on May 14. The record re-
veals that Kelly's foreman during his employment by Re-
spondent was Don Davis; that in his initial few days , of
work he worked directly for Davis, constructing wall
forms in the ball-and-sag area of the concentrator build-
ing; that he was transferred to the yard area for the next
2-week period, working under a working foreman, Larry
Perrin;4° and that from May 9-14, Kelly again worked
directly under Davis at the concentrator building, build-
ing wall forms.
The record establishes that all employee complaints to
Respondent, regarding working conditions, potential
grievances, or other matters, were "'to be channeled
through the job stewards-Mike Herndon, for example.
The record also establishes that when Herndon, in par-
ticular, passed the complaints on to Respondent's super-
visory personnel, he was careful never to identify the
employee involved. Despite this procedure, the testimo-
ny of Robert Kelly indicates that he was not reticent
about himself complaining-or, at least, making his feel-
ings known-to his foreman, Don Davis, with regard to
perceived contractual violations or other matters. Thus,
according to Kelly, during his initial period under Davis'
direct supervision, he observed Davis, who never had
less than five carpenters on his crew, on more than one
occasion working with tools or otherwise performing
unit work. Kelly testified that after one such instance, he
asked Davis if he was allowed to work with his tools,
and Davis replied that he was a working foreman.41 In
addition, besides speaking out about these matters at the
weekly safety meetings, during which Davis was in at-
tendance and presumably listening, Kelly complained di-
rectly to Davis on several occasions regarding the unsan-
itary condition of the toilet facilities near the concentra-
tor building and the lack of cold drinking water and/or
the lack of an ice machine to cool the tepid drinking
water that Respondent did provide. Kelly, who stated
that he was the only member of his crew to not follow
procedures and to complain directly to Davis about the
conditions, recalled one particular conversation regard-
ing the outhouse facilities. He approached Davis and said
that he did not understand why, on a multimillion dollar
project, Respondent could not afford another toilet.
Davis replied that cleaning was difficult because of the
40 Although not particularly clear in the record, Don Davis apparently
was the foreman in overall charge of the carpenter crew in the yard area.
Larry Perrin was paid a foreman's wages to "supervise" the yard work
but, for some reason , refused to accept the duties and responsibilities of a
foreman.
41 Kelly testified that he also spoke to Herndon about this problem
location of the project, and Kelly responded that Re-
spondent could obtain more toilets. Other than these
matters, Kelly testified that he also complained to Davis
regarding a shortage of necessary tools, working at ex-
cessively dangerous heights, and the daily starting
time.42
According to Kelly, what precipitated his discharge
was an incident that occurred on the Friday (May 10)
prior to his discharge. He testified that Davis' crew, in-
cluding Vern Hawkins, Larry Perrin, two carpenters
named Dick and Jim , and himself, was
stripping (dismantling) a form that morning and that in-'
advertently the kickplate, which holds together the
bottom of the form, was not removed. Davis became an-
gered at this and directed Kelly to hook the form to a
crane and fly the form from its setting . Kelly thereupon
completed rigging the form, and while Perrin directed
the crane, the remainder of the crew went to -land the
form. As this procedure commenced, Perrin and Davis
argued over whether the failure to remove the kickplate
would affect the stripping procedure, with Davis stating
that such would not. He was wrong, for as the crane
pulled the form out, the latter was ripped apart. By this
time, it was approximately 9:30, and with all the other'
crews taking the normal, morning break then, Perrin and
Dick just left the area. Seeing this, Kelly turned
to Davis, and asked him for the time. When the latter re-
sponded, 9:30, Kelly said, "`Well, I guess it's break
time,"' Obviously annoyed about what had just occurred,
Davis replied, "Kelly, you're not getting a break today."
Kelly retorted that the union contract mandated a morn-
ing break period43 and that he was going to report
Davis' conduct to Job Steward Herndon. Not bothering
to reply, -Davis walked,away. He did, however, return to
where Kelly. Hawkins, and Jim were working approxi-
mately 15 minutes later and said, while still visibly upset,
"Kelly, go take your break." Thereupon the three car-
penters took their morning breaks.44 Davis did not deny
the occurrence of this incident, and I credit the testimo-
ny of Kelly as to the incident.
Kelly was terminated on May 14. He testified that at
2:30 that afternoon, Davis called him aside and handed
42 Don Davis specifically' denied that Kelly or any other member of
the crew, under his supervision , ever complained to bun about the condi-
tion of the toilets or the lack of cold drinking water. As to whether Kelly
ever complained to Davis regarding the latter's use of tools or perform-
ance of union work , Davis generalized during direct ' examination that no
crewmember ever so complained ; however, when asked, specifically
about Kelly on cross-examination, Davis was considerably less emphatic:
"Not that I can recall .... That's a possibility, but I don't recall." I
previously stated that I was not at all impressed with Davis ' demeanor
while testifying. Further his testimony was contradictory at times and,
particularly regarding the-events preceding and causing Kelly 's terrains,
tion, was vague and at variance with his pretrial affidavit . On the other
hand, at least as to the matter of his discharge , Kelly impressed me as
being candid and forthright . Accordingly, when they conflict, I shall
credit the testimony of Robert Kelly.
43 Sec. 'XVII(j) of the parties' collective-bargaining agreement pro-
vides, in part, that so long as work progress is not impeded , a "reasonable
allowance" for a refreshment break during the first half of a shift may be
granted but that such is not an absolute requirement . Kelly admitted that
such could be given on a staggered basis by the employer.
44 Notwithstanding receiving permission from Davis to take his normal
break, Kelly subsequently reported the incident to Herndon.
BUCK BROWN CONTRACTING CO.
him two checks and a termination notice, with the nota-
tion "work unsatisfactory." Kelly asked Davis what the
problem was, and Davis, other than saying he was not
happy with Kelly, refused to give the latter any specific
reason for the discharge. According to Davis, when he
handed the checks and the termination notice to Kelly,
Davis said, "I got a present for you, Bob." Asked why
he spoke in such a flippant manner, Davis explained,
"Presents can be good or bad depending on the way he
looks at them." As to whether Kelly replied, Davis gave
conflicting testimony. Thus, on direct examination, Davis
recalled that Kelly responded, "I knew this was
coming"; while during cross-examination, Davis abbrevi-
ated Kelly's alleged response to "I've expected it." This
testimony must be contrasted with Davis' pretrial affida-
vit, dated just 8 days after the conversation (May 22), in
which he professed not being able to recall any response
by Kelly. I am convinced that Davis fabricated this testi-
mony and do not credit him as to Kelly's alleged re-
sponse. Further, Davis' admitted insensate opening com-
ment to an employee who Davis was about to terminate
is indicative of either utter and supreme naivete, or,
more likely, his true feelings toward a perceived union
crybaby.'
Respondent, almost entirely, relies on the testimony of
Don Davis to establish that the discharge of Robert
Kelly was solely based on his unsatisfactory job perform-
ance. Davis, on whose decision Kelly was terminated,
testified that his rationale for doing so was based on his
conclusion that Kelly was not "doing the job to my satis-
faction, wasn't performing as he should." Davis further
testified that four separate incidents, each occurring
within the 5-day period' immediately preceding the dis-
charge, cumulatively caused him to reach this decision.
Before analyzing each separate occurrence, inasmuch as
Davis steadfastly maintained during both direct and
cross-examinations that no less than four instances, taken
together, of work-related difficulties resulted in his deci-
sion to terminate Kelly, it is crucial to a determination of
Davis' credibility in this regard to point out that in his
aforementioned pretrial affidavit, given 8 days after dis-
charge, Davis could recall only two such incidents and
stated, "I cannot think of any other specific incident of
Kelly's poor work."45 In any event, the first of these in-
cidents, according to Davis, occurred 4 days prior to the
discharge, and began' when he asked Kelly to go inside a
form and predrill holes that were needed so that snap
ties could be inserted through the form. After a short
period of time, Davis observed that Kelly wasn't doing
the work-"I mean he'd get frustrated, set the drill
down, walk around, try and pick it up and try and do it
again." Finally, Davis testified that he was forced to
demonstrate how to perform the task correctly. Regard-
ing this incident on', cross-examination, Davis admitted
that such was not included in his pretrial affidavit; that
he did not observe Kelly performing his work on ,a con-
's Asked why his memory was so much better 10 months later, Davis
testified that when he gave his pretrial affidavit , he had just been dis-
charged from the hospital wherein he had undergone treatment for a
gunshot wound. Averring that he gave his affidavit under the influence
of pain and a lack of sleep, Davis further testified that he missed gust I
day of work and was given no drugs that day.
505
tinning basis that day; and that, contrary to the impres-
sion created by his direct testimony, rather than Kelly's
inability to -perform the work or his lack of understand-
ing of its requirements , what allegedly irked Davis was
that Kelly did not take the proper amount of time to
complete the job-"in the time that it 'took me to get
back to where he was, he hadn't moved far enough."
Kelly testified that predrilling holes in forms was
standard work and that he was never disciplined for
doing such improperly. However, he did testify regard-
ing an incident that occurred shortly before his discharge
and did involve the drilling of holes. According to
Kelly, he and Don Carle, a welder, were assigned by
Davis to predrill holes in a form but they soon experi-
enced difficulty because Davis gave them improper di-
mensions for the holes and, as a result, the ends of the
rebar would not fit into the holes. Kelly testified that
they did not have large enough drill bits to compensate
and that when he and Carle mentioned this to Davis, the
latter said to "just use a sledge hammer and pound the
knuckles in." Kelly and Carle proceeded to follow in-
structions, but the process was taking an excessively long
time . Finally, David yelled over to them, asking what
was taking so long. Carle yelled back that more men
were needed. "And the next thing I knew, [Carle and
Davis] were in a heated argument, with Davis ending [it]
by threatening to fire Carle."
Davis testified that the second alleged contributory in-
cident occurred the next day. Kelly was working on a
form that day and, according to Davis, at one point in
the day, he observed Kelly hanging by his safety belt
and doing no work for approximately ?I or 4 minutes.
Davis asked why, and Kelly replied that he was out of
nails and was waiting for a laborer to bring hint a new
supply: Davis responded that Kelly was not helpless and
should get his own nails . After Kelly protested, Davis
repeated the order, and the former came down from his
working height and went to the supply area. Davis fur-
ther testified that what, annoyed him was that "'a good
carpenter is one , that will, do the work. If he is out of
nails, he goes and gets his nails."46 However, during
cross-examination , Davis candidly stated it was not un-
usual for a carpenter to make such a request of a laborer
and that even Davis supplied Kelly with needed materi-
als on occasion . Further, Aiton Jr. testified that, depend-
ing on the circumstances, Kelly's actions in this instance
were not necessarily indicative of poor work.
During his direct examination , Kelly candidly admit-
ted the incident, placing it on the day prior to his dis-
charge. He testified that while working from a safety
belt high on a form, he had no nails left and requested
his partner, who was on the ground, to obtain a new
supply. Davis, who was standing nearby when Kelly
made his request, heard Kelly do so and responded that
Kelly had no time to wait for' others and that he should
get the nails himself. Thereupon inasmuch as , no nails re-
mained in the crews' supply bin, Kelly walked across the
jobsite in order to obtain a full box of nails . On return-
46 According to Davis, the laborer had not yet appeared; thus, Kelly
had not yet even ordered a new supply of nails.
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, according to Kelly, Davis was waiting for him and
said that Respondent was on a tight schedule and that
Kelly did not have time to waste waiting for someone to
hand him nails. -
Soon after this incident on either May 11 or, 12 and,
according to-Davis, based on the aforementioned two in-
stances, he approached his general foreman, Aiton Jr.,
outside the concentrator, building, said that he was un-
happy with Kelly's work performance and that if he did
not improve, Respondent should "get rid of Kelly."
Aiton Jr. asked if Davis. had talked to ` Kelly about the
problem and when the foreman said no, Aiton Jr. "sug-
gested that I go talk to Bob and then we observe him for
a couple of days and see if his performance improved."47
Accordingly, Davis testified, approximately 30 minutes
later, he pulled Kelly away from the other crewmembers
and said that he was unhappy with Kelly's performance
and that it needed improvement. Davis testified that
Kelly somehow indicated that he 'understood. Kelly
denied such an incident, testifying that the only such
conversation, as set forth above, occurred on his return
from obtaining a supply of nails.
The third alleged instance of Kelly's poor work prior
to his discharge involved his failure to properly tie the
corners of a wall form, which work consisted of overlap-
ping 2 by 4 pieces of wood and nailing them together.
Davis testified that he assigned Kelly this work, that he
checked no less than three times as to whether Kelly
completed the' work, and that on each occasion, Kelly
had not yet performed his assignment. Finally, according
to Davis, after ordering Kelly to do the work a third
time, the latter did so. During cross-examination, Davis
averred that Kelly's actions irritated him: "The consist-
ency of having to go' back and say, I need this done ...
and then come back and find the person is not working
on it or hasn't started it and then having to again tell him
to do, it and come back the third time and have to say,
do-it now." Despite this irritation, 9 days later in his pre-
trial affidavit, Davis could not recall this incident as con-
tributing to his reasons for terminating Kelly. For his
part; Kelly denied ever having been told more than once
by Davis to perform any particular task.
Davis testified that the final instance of Kelly's poor
work performance occurred on the day of the discharge
in the morning. According to Davis, while he was super-
vising work at the top of a wall form, he asked Kelly to
go get a piece of 4, by 4 wood of a certain length. A pile
of wood was nearby, and Davis observed Kelly take
what appeared to him to be an inordinate period of time
choosing a piece of wood-picking up and discarding
several pieces of wood of the wrong length before se-
lecting, a larger piece and cutting it to the proper length.-
Davis further testified that he was forced to yell to Kelly
to hurry as the wood was necessary to the crew's work.
On cross-examination, Davis stated that what irritated
him was the fact, that, as an experienced carpenter, Kelly
47 Aiton Jr. testified that prior to discharging Kelly, Davis reported
the occurrence of just one , work-related problem with Kelly and that
such involved Kelly yelling to another employee to bring him (Kelly) a
supply of nails-an act that did not please Davis. Aiton Jr. further testi-
fied that Davis reported this in one of two conversations before Davis
terminated Kelly.
should immediately have selected the longer piece and
cut it rather than needlessly searching for a piece of
wood of the exact length necessary. Notwithstanding
that the entire elapsed time for Kelly to find the correct
length of wood was just 5 minutes, Davis insisted that
time was of the essence as a concrete pour was sched-
uled to commence shortly thereafter. As to the signifi-
cance of this' incident, Davis admitted that this "one -inci-
dent alone' would not have resulted in [Kelly's dis-
charge]," but averred that taken together with the prior
three incidents, the 4 by 4 incident was important
enough to have been a factor in the discharge.48 Finally,
I note that although he testified that Kelly -did ultimately
bring him a piece of wood of the correct length, Davis
contradicted his -pretrial affidavit in which he stated, "I
recall that shortly before I discharged [Kelly] I sent him
for some 4 x 4's and he didn't get them. I don't recall if I
asked him, about, it or if he said why he didn't get them."
Kelly denied the occurrence of such an incident.49 After
answering questions regarding the above four incidents
during cross-examination, Davis was asked if he could
recall-any other incident as being a factor in his decision
to terminate Kelly. He answered, no, and was immedi-
ately confronted with, his pretrial affidavit in which he
stated, "Some of his work we had to do over-, although
now I cannot recall any specific instances." Thereupon,
Davis averred that he was able to recall that such,
indeed, was a factor in the discharge decision but that he
still could not remember any specific occasions.
Besides Davis, Respondent relied on the testimony of
Foreman Dennis Jensen to establish that Kelly ' was a
poor worker. Corroborated- to this extent by Kelly,
Jensen testified that Kelly worked on his crew' for 1 day
because another crewmember was ill. According to
Jensen, he assigned Kelly to precut some plywood, but
the latter did not appear to understand the assignment.
Consequently, Kelly did not do the work correctly, and
two other men were required to tear down and recon-
struct what Kelly had previously done. Jensen further
testified that he spoke to Davis that afternoon about
Kelly. The latter asked how Kelly was doing, and Jensen
replied, "`Piss poor."' Davis responded that Kelly was
slow ad that he was not pleased with him. Davis added
that he did not know what he was -going to do with
Kelly and "in a joking way was asking, hoping I would
take him." Jensen replied that he would get his own
help, rather than use Kelly. Davis directly contradicted
Jensen as to this conversation. Thus, not only could
Davis not recall whether Jensen expressed any opinion
as to Kelly's work, he specifically denied expressing his
48 In the regard, Davis agreed that taken individually, each of the
prior incidents was also trivial.
49 Davis asserted that after the last incident , he became convinced that
Kelly was not a competent worker. Accordingly, Davis testified he ap-
proached Aiton Jr. outside the concentrator building at approximately 11
a.m. and told the latter that he should get Kelly 's check because he was
not "packing his weight or holding up his end of the project ." The gen-
eral foreman asked what he should put on ,Kelly's termination, shp as a
reason for the discharge, and after a short discussion, Davis instructed
Aiton Jr. to mark whatever was necessary to note that Kelly was fired.
BUCK BROWN CONTRACTING CO.
own opinion as to Kelly's work ability: "I don't think I
stated it to Dennis, no."50
2. Analysis
The consolidated amended complaint alleges that
Kelly was discharged by Respondent in violation of Sec-
tion 8(a)(1) and (3) of the Act. In support, the General
Counsel argues that by complaint about perceived con-
tractual violations and other matters affecting employees'
terms and conditions of employment to Don Davis and
at the weekly safety meetings, Kelly engaged in activities
that were privileged by Section 7 of the Act. Counsel
further argues that Respondent terminated Kelly because
of the activities inasmuch as Davis, in particular, be-
lieved all union supporters were crybabies and was not
reticent about disguising his disgust at union problems on
the project. Contrary to the General Counsel, Respond-
ent argues that the former has failed to establish that
Kelly ever actually engaged in protected concerted ac-
tivities , asserting that Kelly's comments at various times
to Davis were hardly in the nature of "complaints"
about working conditions, and that there exists no evi-
dence of unlawful animus . Respondent further argues
that Kelly's discharge was motivated by, and directly re-
sulted from, his poor job performance.
As with Randal Fansler, the record amply supports
the conclusion that Kelly engaged in union and other ac-
tivities privileged by Section 7 of the Act. Thus, not-
withstanding Davis' denial, I have credited the testimony
of Kelly that, alone among members of Davis' crew, he
either complained or commented directly to Davis con-
cerning several perceived contractual violations and
working conditions generally. Regarding the. former,
Kelly on one occasion questioned Davis about the Tat-
ter's use of his tools and- on other occasions complained
to his foreman about the lack of sanitary toilet facilities
and properly chilled drinking water. Also, in an incident,
which, the General Counsel contends, precipitated his
discharge, Kelly exacerbated an already awkward situa-
tion, involving the destruction of a wall form, by intem-
perately complaining to Davis about the latter's refusal
to permit him to take a morning break right at that
moment. Inasmuch as the aforementioned matters are
based on the Union's collective-bargaining agreement,
Kelly's conduct in complaining to or questioning Davis
about them constitutes union and protected concerted ac-
tivity within the meaning of Section 7 of the Act. Pioneer
Concrete Co., supra; City Disposal Systems, supra; Road-
way Express, supra. Even if not cognizable under the
Union's collective-bargaining agreement, Kelly's forego-
ing complaints, as well as those relating to working con-
ditions in general, including a shortage of necessary tools
and work at excessively dangerous heights, involve mat-
ters of common and vital concern to all Respondent's
so Throughout his testimony, Dennis Jensen impressed me as being
biased in Respondent's behalf and as a witness not about tailoring his tes-
timony to fit Respondent's version of the facts. In this regard , the record
discloses that Jensen was made a foreman by Respondent at the jobsite
under rather questionable circumstances. I do not credit his testimony
and, noting the contradictory testimony, do not credit the occurrence of
either the Kelly incident or the contents of the alleged conversation be-
tween Davis and Jensen.
507
employees and, therefore, must be found to constitute
protected concerted activity whether or not Kelly acted
on an individual basis . Cal-Waits, Inc., 258 NLRB 974
(1981); Rose's Stores, 256 NLRB 550 (1981); Air Surrey
Corp., 229 NLRB 1064 (1974); Alleluia Cushion Co., 221
NLRB 999 (1985). Finally, although Respondent belittles
the nature of Kelly's remarks, questions , or complaints to
Davis, the fact is that all such related to either contrac-
tual matters , working conditions, or both. Accordingly, I
fmd that all such activity, no matter the form, was pro-
tected by the Act.
Regarding whether Kelly's aforementioned conduct in-
fluenced Davis in his admitted decision to terminate
Kelly, for-the General Counsel argues that such was the
sole motivating factor. On the other hand, counsel for
Respondent argues against the existence of unlawful
animus, citing Kelly's own testimony that whenever he
voiced a "complaint" or questioned Davies' conduct, the
latter responded in measured tones and not vituperative-
ly. The latter argument, at first glance, is appealing;
however, to fmd it meritorious would be to ignore the
ample and persuasive51 evidence of animus. As to this,
the record fully warrants the conclusion that such un-
lawful animus was in the nature of a personal antago-
nism, on Davis' part, directed toward Kelly and based
on the latter's propensity to complain and to do so di-
rectly to Davis. Several factors lead me to this conclu-
sion. Initially, not only did Davis believe that the Las
Vegas -carpenters as a group were nothing more than
crybabies for raising what they perceived as legitimate
contractual complaints but also, I believe, he harbored
some sort of resentment' toward the union member/-
employees for deliberately "starting all this union shit" at
the outset of the project when Respondent was experi-
encing significant job-related problems-"`they expected
to have when they came on the job the exact same
things they had in Las Vegas, and when we were trying
.. the best that we could, all being out of state .. .
but I mean, a lot of the stuff that they were crying about
we were-trying to work on and they just kept harping
and crying about." Also, contrary to Davis' denial and
expressed lack of animosity toward him or his position as
a' union agent, I have expressly credited the testimony of
Job Steward Herndon that Davis, on at least two dozen
occasions when the former brought employee complaints
to his attention, called Herndon a crybaby for doing
such. Specifically as to Kelly, however mild his actions
may have been, I note that not only did Kelly act out-
side the standard communications channel by bypassing
Herndon and registering his own complaints with Davis
but also Kelly was the only member of Davis' crew to so
act. That the inference is warranted that Davis, who al-
ready perceived the union employees, as a group, to be
crybabies for the exact same conduct, took Kelly's con-
duct personally and was so motivated in terminating him,
is clear when one considers Davis' admitted remark to
Kelly on terminating the latter-"I got a present for you,
51 The admonition of the Board in Wnght Line, supra, is instructive at
this point-that in analyzing whether a prima facie violation of Sec.
8(a)(1) and (3) of the Act has been proven, a quantitative analysis of the
motivation evidence is not required.
508 DECISIONS OF THE NATIONAL LABOR ,RELATIONS BOARD
Bob." I believe that such an insensate and utterly unpro-
voked remark is indicative of an individual who harbors
unlawful animus against an employee and further believe
that Davis' ludicrous explanation for his comment is not
worthy of belief. In this context, finally, the events of
the previous day, wherein Davis, already upset over the
accidental destruction of a wall form, reacted angrily
when Kelly began complaining about not being allowed
to take a morning break at -that time and threatening to
report the matter to Mike Herndon, gain perspective as
being nothing less than the precipitating cause for the
discharge. In short, I must conclude that the General
Counsel has established a prima facie violation of Section
8(a)(1) and (3) as to the, discharge of Kelly.
Turning now to a determination as to whether Re-
spondent has met its own Wright Line burden of proof
and established that Kelly, would have been terminated
d-anyway .for legitimate business reasons and notwithstan
ing the existence of unlawful, animus, three factors are of
crucial importance. First, Don Davis testified that just
four work-related incidents-Kelly's failure to predrill
holes in a sufficient period of, time,, Kelly's delay in
working while awaiting a laborer to obtain some nails,
Kelly's failure to properly tie the corners of a wall form,
and, lastly, his delay in selecting a 4 by ' 4 piece of wood
of the proper length, all occurring in the 5-day period
immediately preceding- the discharge-were determina-
tive in Davis' decision-to terminate Kelly. Davis further
testified that each -incident, considered separately, was
trivial and would not have resulted in discharge but that
taken together, a pattern emerged that revealed that
Kelly was a poor worker who Respondent could no
longer tolerate as an employee. Second, in his pretrial af-
fidavit, which was given just 8 days after Kelly's dis-
charge, Davis named just two incidents, Kelly's delay in
working while, awaiting a laborer to obtain a supply of
nails and his delay in choosing a 4 by 4 piece of wood of
the proper length, as contributing to his discharge deci-
sion and swore that "I cannot think of any other specific
incident of Kelly's poor work." The last, critical factor
necessary to evaluate Respondent's defense is Kelly's
own testimony regarding his job performance. Thus, he
specifically denied the occurrence of the other three al-
leged instances of his poor work; while candidly admit-
ting,the occurrence of an incident involving the procur-
ing of a new supply of nails-albeit a different version
'than that of Davis. Further, while denying the predrill-
ing of holes incident, Kelly testified to a similar incident
involving an argument between Davis and another em-
'ployee.
With Respondent's economic justification for the ter-
mination of Kelly resting on Davis' testimony that four,
separate incidents of poor job performance by Kelly-,
taken as a whole, formed the basis for his decision to ter-
minate Kelly, I specifically, discredit his testimony re-
garding the two alleged incidents (the predrilling of
holes and the failure to properly tie the corners of a wall
form episodes) not mentioned in the pretrial affidavit,
which was taken a scant 8 days after Kelly's discharge.
In this regard, I believe Davis''-failure to include the inci-
dents as contributory factors to his decision is highly en-
lightening inasmuch as an individual's memory of an
event is sharpest immediately after the occurrence and
dulls significantly as time passes. Flatiron Materials Co.,
250 NLRB 554, 559 (1980). Also, I do not credit Davis'
explanation for his markedly' clearer memory at the hear-
ing'than at the time he gavega e his pretrial affidavit" and
specifically credit Kelly's denial of the incidents.53 Ac-
cordingly, then, if Kelly would have been terminated re-
gardless of his protected concerted activities , the remain-
ing incidents that must form the basis for such are the
"nails" incident and the "4 x 4" incident.
Initially, I note-that it would be intellectually dishonest
and illogical to conclude that these latter two incidents
justify the discharge of Kelly inasmuch as, by Davis'
own admission, four separate incidents, taken together,
were the basis for the discharge; as, based on my credi-
bility resolution, at least half of Respondent's defense has
been fabricated; and as, again by -Davis' own admission,
each incident, considered separately, was trivial and did
not justify termination. More specifically, as between the
conflicting testimonies of Davis and Kelly, I -credit the
latter's version of the nails incident. Not only did I find
Kelly to be a more trustworthy witness, but also I note
that his version is buttressed by 'the testimony of, Aiton
Jr. who testified that Davis, reported on this incident
during the first of two conversations prior to the, dis-
charge of Kelly, a report which, in effect, corroborates
Kelly's version of the incident. I also note the grudging
admission by Aiton Jr. that Kelly may not, have done
anything wrong that day. Finally, notwithstanding the
admitted triviality of an incident that consumed just 5
minutes, I credit the testimony of Kelly that the 4 by 4
incident did not occur. In these circumstances, taking
into account the record as a whole and in- agreement
with the General Counsel, I do not believe -that Re-
spondent has met its burden and establish that Robert
Kelly would have been terminated notwithstanding his
protected concerted activities and find that Kelly was
terminated-by Respondent in violation of Section 8'(a)(1)
and (3) of the Act. Pioneer Concrete Co., supra; City Dis-
posal System,- supra.54
52 Interestingly, Davis' memory had to be refreshed via'his pretrial affi-
davit for him to recall that he also listed as a factor in Kelly's discharge
the necessity to redo his work on occasion Of course , given 'the time
lapse, Davis was unable to recall specific instances of this assertion,
53 I specifically credit Kelly's testimony regarding the confrontation
between Davis and Don Carte and believe that Davis utilized this inci-
dent as the basis for his predrilling of holes mcident , and fabricated
Kelly's involvement.
s: Inasmuch as I have concluded 'that Respondent acted in violation of
Sec. 8(a)(l) and (3) of the Act in terminating Kelly, I find it unnecessary
to decide whether Respondent violated Sec. 8(aX1) and (4) of the Act by
refusing to rehire hum. In this regard, I note that there is no evidence in
the record that Respondent has yet offered to reinstate Kelly' to his
former position, that the practical remedy for the violation, which I have
found, encompasses, except for the wording on the notice, the standard
remedy for an 8(a)(1) and (4) violation, and that, in,any event, I have
grave doubts as to the, credibility of the evidence, which was adduced by
the General Counsel in support of the latter allegation, including the tes-
timony of Kelly concerning events subsequent to his discharge.
BUCK BROWN CONTRACTING CO.
D. The Discharge of Wendell Bridges
1. The facts
The record establishes that Wendell Bridges, who has
been a carpenter for 10 years and a member of the Union
since 1978, was acquainted with Robert Kelly, that the
latter informed 'Bridges in mid-April that Respondent
was continuing to hire carpenters at the Tonopah Mine
project, and that one day in late April Bridges took a
day off from work and drove up to the jobsite and spoke
to Joe Lively about working for Respondent. Bridges in-
formed Lively that he was capable of doing any work
that Respondent required, and the latter, after taking
down Bridges' name and address, said there was a possi-
bility that he could use Bridges. Thereafter, about May
8, Respondent requested Bridges by name from the
Union's hiring hall. Bridges immediately telephoned
Lively at the jobsite and received permission to report
for work on the following Monday. '
The record further establishes that Bridges reported
for work at the Tonopah Mine project at approximately
7 a.m. on Monday, May 12, and that he was assigned to
work on Obie Bodiroga's crew at the crusher building.
After working about 1-1/2 hours, Aiton III approached
Bridges and ordered him to report to the office area and
help construct forms. He did so, and at noontime Aiton
III again came over to where Bridges was working and
informed the latter that he was scheduled to report for
work the next day at 3 p.m. and would thereafter be as-
signed to work on the night shift. Bridges responded that
he had not been hired to work nights; Aiton III replied
that Bridges' name was on the work schedule and
walked away. However, Aiton III returned 10 minutes
later but this time with Joe Lively. Lively asked Bridges
why he would not work nights, and the latter, replied
that he had not been hired for that shift. Lively said that
he thought he had hired Bridges with that understand-
ing, and the latter said no. Finally, Lively asked Bridges
if he would try it for a couple of weeks, and Bridges
agreed to do so as an experiment.5 s
That night in the dry camp area, Bridges spoke to an-
other carpenter, Bob Micheli, who informed Bridges that
he had been appointed the union steward on the night
crew and that the shift was to be 9 hours and not the 10-
hour shift that Bridges believed all the other employees
of Respondent were working.56 Angered that he was
going to lose anticipated wages- by working nights,
Bridges drove to the jobsite at 6:30 a.m. the next morn-
ing (May 13), went to Respondent's office trailer and en-
ss Bridges admitted that the nature of this complaint , concerning being
scheduled on the night crew, , was purely personal and involved no one
else.
56 Jaynes Easter, who was to be the night crew foreman, testified that
he spoke to Bridges sometime that evening and that Bridges told him he
did not want to work nights According to Easter, he responded that he
had no control over assignments and that he had nothing to do with
Bridges being on his crew . The latter replied that he was going to speak
to Joe Lively and that he was sorry for going over Easter 's head. Al-
though Bridges did not deny either the occurrence of or substance of this
conversation, I note that, according to Bridges , he had previously agreed
to work on the night shift , as an experiment , that afternoon and that what
he was upset about that night was the matter of the number of hours that
the crew would work.
509
countered Joe Lively. Bridges told Lively that, he did
not mind working at night but that he now learned that
the shift was to be 9 hours and that it was not fair be-
cause all the other crews were working 10-hour shifts.
Lively responded that such was the way it was and that
there was nothing he could do about it. Bridges asked if
he could work on another crew. Lively replied, no, that
,the night crew was all he could give to Bridges and that
if he did not want it, "I don't know what to tell you."
According to the uncontroverted testimony of Bridges as
to this conversation, he and Lively became more agitated
as the meeting progressed.57
Because he was not scheduled to work until later that
day, Bridges returned to the dry camp. Approximately 2
hours later, he walked to Bob Micheli's trailer. Jim
Easter, the night-shift foreman, was speaking with Mi-
cheli when Bridges arrived. During the ensuing conver-
sation, according to Bridges, Easter said that the crew
was shaping up to be a good crew and that while he also
did not like working and being paid for just 9 hours, he
felt that eventually the crew would work a 10-hour shift,
Bridges agreed, saying that it was unfair to work re-
duced hours and estimating a loss in wages of perhaps
$200 per week. Bridges further stated that, as he and
Easter spoke in Micheli's trailer, Easter ' consumed the
entire contents of a pint bottle of vodka. The latter did
not deny these events.
That afternoon,, the newly formed night crew-58 re-
ported for work at 3 p.m. and was assigned to, work in
the crusher building area,- finishing the construction of
wall forms for the eventual pouring of concrete, the ma-
terial t of which the crusher building walls were to be
constructed. Bridges testified that for the initial period of
the shift, he predrilled holes in a wall form for an inside
wall of the building, which work was necessary for the
insertion of 6-foot long steel rods, called doaker rods,
which rods tie, or hold, the wall form together while the
concrete is being poured, and that for the remainder of
the shift, he was involved in the actual process of tying
that particular form. The record discloses that the work
of tying a wall form is a laborious and at times danger-
ous (because of the heights at which the men are re-
quired to work) process that necessitates the utilization
of no less than three carpenters, two stationed outside
the opposite walls of the form and one inside . The afore-
mentioned danger results from the requirement that, al-
though able to rest their feet on 4 by 4 wood blocks ex-
tending from outside the form, called slim soldiers, the
two outside workers, in order to freely and properly per-
form their work, must support themselves solely by
means of their safety belts. This should ' be contrasted to
the degree of danger faced by the inside worker, who is
able to stand on a grid of the doaker rod that are spaced
about 16 inches apart. The work involved in the process
57 During cross-examination , Bridges testified that after meeting with
Lively, lie sought out Job Steward Herndon and reported on his argu-
ment with Lively over the night crew 's work hours . Herndon counseled
Bridges to be patient as the Union was trying to work things out with
Respondent. Thereupon , Bridges returned to Lively and apologized.
sa Besides Easter, Michell, and ; Bridges, the crew consisted of journey-
man carpenters Larry and Dale_ ,apprentice carpenter Pat
Curtis, a laborer, and two crane operators.
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is as follows : one outside man (the feeder) must lean
backwards (completely dependent for support on the
safety belt) and push with his hands or force, by banging
on the end of the rod with a hammer, the 1-1/4 inch in
diameter steel doaker rod through the predrilled hole in
the panel; thereon, the inside man pulls the rod through
that hole and guides it to the corresponding hole in the
opposite panel of the form; and, next, the other, outside
man pulls the rod through his side and secures it by
means of affixing a steel plate, termed a cat-head, over
the protruding end of the doaker rod (the feeder also
places a cat-head around his end of the rod). It must be
borne in mind that inasmuch as the outside men, by ne-
cessity, must have their hands free in order to work with
the doaker rods, and to catch and tie the cat heads, they
cannot work efficiently if forced to hold onto the slim
soldier, perhaps nervous at the heights at which the
work must be done. On this night, according to Bridges,
he, Micheli, and Pat Curtis, the apprentice, were tying
the aforementioned wall form,, with Bridges working as
the feeder, Micehli as the opposite outside man, and
Curtis working inside the form. Bridges testified further
that he spoke just once to Jim Easter during work that
night, that Easter simply asked if he was encountering
any problems, and that Bridges answered that he was
not. In this regard, however, Bridges later admitted that
although he had worked at heights previously, he had
done so standing on a scaffolding and had never worked
solely supported by a safety belt. Further, Bridges admit-
ted that Micheli and Curtis accused him of working too
slowly that night; however, he insisted that if any delays
occurred, such were caused by the crews' laborer who
was slow in passing up materials to him.59 Notwithstand-
ing this, Bridges also insisted that he was working as fast
as someone with experience in that type of work.
Contrary to Bridges, Easter testified to a far different
version of the events of that night. Contradicting the
former, Easter stated that he assigned Micheli to be the
feeder, that Bridges was designated as the other outside
man, and that the, latter's work consisted only of the
placing of cat-heads over the doaker rod ends that pro-
truded from his side of the wall form.6 ° Further, accord-
ing to_ Easter, early on it became rather obvious to him
that Bridges was extremely nervous working at heights
while supported solely by his safety belt. Thus, Easter
observed Bridges constantly trying to work while hold-
ing onto the slim soldiers, the protruding 4 by 4 blocks
59 Bridges testified that the slow work of the laborer caused both
Curtis and Micheli to yell to him from time to time , "Come on, let's go."
However, according to, Bridges, neither of them could observe how the
laborer was working; therefore , all they could know was that there was
some slowness , with someone at fault.
60 Easter testified in a contradictory manner as to why Bridges was
assigned to work as the "other" outside man, this night . Initially, Easter
averred that he had no idea of Bridges' capabilities and that he assigned
Bridges to that position as "somebody had to do it and nobody was on
the ground ... I figured he'd be all right to do it." Later, Easter testi-
fied that he formed the opinion from observing Bridges' work the previ-
ous day that other workers were more capable. Also, Bridges allegedly
told him that "he had never been around like [Respondent's]" before Ac-
cordingly, he did not give Bridges the feeder job because "I figured I
had three of four . . . people a little bit more capable than he was "
Bridges specifically demed informing Easter that he had never worked
on such a job as the crusher job that night.
of wood. This, in turn, caused Bridges to be unable to
catch the metal cat-heads that were being passed up to
him by the laborer. The resulting work delays necessitat-
ed Easter to speak to Bridges twice: "I told him to loose
of that slim soldier with his arms and hands, and lean
back on the belt, and ... catch the material the laborer
was passing up to him." Bridges replied each time that
he would try. Besides the -latter's perceived nervousness
working off the safety belt, Easter stated that he ob-
served Bridges having difficulty with the hand signals
necessary for signaling the crane operator, during the
"flying" of the wall form panels . Accordingly, because
he allegedly believed that Bridges' nervousness at heights
could possibly endanger the other crewmembers, Easter
further testified that he decided to speak to Bridges
during the crews' break,period in the job shack. "I asked
Bridges if he would transfer back to the day shift and
work on the ground . . . because he was too nervous
and he was a threat to my people- below him."61 Bridges
said no as "he would feel like a pussy if he took a trans-
fer . . . . He wanted, to tough it out." Easter next of-
fered Bridges the inside man job; Bridges also refused
this job, saying "he wanted to tough it out and be a man
...." Nothing more was said. Finally, as to the content
of Bridges' testimony, Easter denied both that the labor-
er caused any delays that night and that Bridges men-
tioned this to him. Called as a rebuttal witness, Bridges,
for his part, denied the occurrence and the substance of
the alleged break period conversation between Easter
and himself, and he also denied any conversations with
Easter regarding signals for the flying of panels or prob-
lems in that regard.
In any event, the night crews' shift ended at 11:30 that
night, and everyone returned to the dry camp. Bridges
testified that he wandered over to Micheli's trailer and
that while standing outside, he heard several people
speaking about him. In particular, Micheli opined that
Bridges was just too slow, and the apprentice, Pat
Curtis, said that if Bridges could not do the work, he
should let someone else do it and leave. At that point,
according to Bridges, he entered the trailer, saying that
if there was talk about the crew, it should be in the pres-
ence of all of them in the open. Easter then said that the
discussion was closed and that he had made a decision
that because Curtis had more experience working outside
off a safety belt, he was going to put Bridges inside for 2
or 3 weeks until he was familiar with the work. Bridges
responded that he could do the job and that he thought
he had done a good job that night. Easter agreed but
said he would still put Bridges inside so that-he could fa-
miliarize himself with the work. Bridges specifically
denied refusing this change in work duties, and stated
61 During cross-examination, Easter altered his testimony regarding
Bridges transferring to the day shift: "I believe I told him I'd help him
transfer because he was good on the ground." He was also able to -recall
telling Bridges that "he was too scared to work above, and he was dan-
gerous. Unless he'd get shaped up, he couldn't handle the job and I
wanted him out of there."
BUCK BROWN CONTRACTING CO. 511
that the meeting ended with Easter saying Aiton III was
happy with the crews' work that night.62
Bridges next testified that as the crewmembers report-
ed to the jobsite for work on the afternoon of May 14, it
began to rain. Observing the weather Easter informed
the crew that- he and Aiton III were going to check on
the condition of the work area. While awaiting their
return, Bridges noticed Robert Kelly speaking to another
carpenter in the vicinity of the office trailer.63 Kelly
came over to Bridges and informed him of his termina-
tion. After a few minutes, Easter returned and walked
over to where Kelly and Bridges were standing. Bridges
introduced Easter to Kelly and inquired whether Kelly
could be hired for the night crew. Easter asked why, and
Bridges responded that Kelly had just been laid off and
Bridges thought Easter could utilize Kelly on his crew.
Easter replied that he would get back to Bridges after
telling the others that there would be no working that
day. Ten minutes later Easter returned and said to KellY,
"I can't do nothing for you, son.... I'm sorry, but I've
got a new crew here and I don't want any problems."
Thereupon, according to Bridges, he (Bridges) asked
what if he spoke to 'Lively. Easter -replied,-"I wouldn't
advise going over my head." Kelly, during his testimony,
recalled this conversation, stating that after he ap-
proached Bridges that afternoon and informed him of the
discharge, the latter introduced him to Easter. Bridges
said to Easter, that Kelly was a good carpenter and that
although he had been let go, he could work on another
crew. :'Easter replied that he would return after informing
the rest of the crew that-they would not be working that
afternoon. He soon returned and said to Kelly, "Well,
sorry Bob. I'm a new foreman and T don't want to get
involved." Bridges thereupon said that Kelly should
speak to Lively; Easter became upset, asking whether
Bridges was trying to go over his head. Bridges said no,
and, Kelly recalled, the conversation ended.64
82 Mentioning nothing during direct examination, Easter was able to
recall, during cross-examination , that on returning to the dry camp that
night, the entire crew met in Michell's trailer, drinking coffee or beer,
and that, Bridges walked in 5 minutes after the conversation began. Ac-
cording to Easter, the entire crew was in the process of complaining
about Bridges' job performance when the latter entered and said that he
did not like people talking behind his back . After various crewmembers
insisted that Bridges transfer to days, Easter renewed his offer to Bridges
to work inside the form . Bridges said "he'd feel like an idiot ... to take
a transfer like that. He wanted to tough it out , if he could ." No more was
said.
63 The record establishes that Kelly had been fired by Don Davis ap-
proximately an hour earlier ; however, after speaking to Aiton Jr. and Jim
Joy, Kelly had been given permission to seek a position on another crew.
Thus, Kelly spent the remainder of the afternoon speaking to other fore-
men as to whether they could use him on their crews. Aiton Jr. corrobo-
rated Kelly as to this granting of permission to seek employment with
other foremen.
64 Easter testified regarding this conversation during cross -examina-
tion. While informing the crew that no work was to be done on May 14,
according to Easter, he was introduced to Kelly by Bridges. Then,
Bridges asked Easter to try to fit Kelly onto his crew . Easter replied that
he could not use Kelly as the latter had been laid off by another foreman
and Easter did not want to intervene and as Easter did not want any
problems on his crew . Bridges responded that Easter testified that they
1 were going to "wobble" (strike) the job.
Asked what he meant by not wanting any problems, Easter explained,
"[Kelly] had been laid by another foreman, and . , . if I hired him on my
crew, [such] ... would cause dissension between the other foremen and
myself.... .
Bridges, who had driven himself to the jobsite that
day, returned to the dry camp with Kelly. According to
Bridges, he and Kelly had a conversation with Micheli in
front of the latter's trailer shortly thereafter. Kelly, who
was upset over his termination, announced that "`I'm
going to throw a wildcat on this job."' Bridges added
that he would not cross the picket line; however, Micheli
responded that he would run right over Kelly, because
he wanted to keep his job. Micheli, then, left the others
and walked toward his trailer. According to Bridges, he
had previously noticed that Easter's car was parked out-
side Micheli's trailer, and he asked Kelly whether
anyone else was in the vehicle. Kelly replied that Easter
had entered it awhile ago.65 Later that- afternoon
Bridges,learned that Kelly had no'means of returning to
'Las Vegas. Thus, at 6:30 p.m. Bridges went to Easter's
trailer and said to the latter that he would The taking
Kelly back to Las Vegas and would return in time for
work the next day. Easter asked whether Kelly was sup-
porting him. Bridges denied it, saying Kelly was a friend
and because he did -lot have a car, Bridges would drive
him back to Las Vegas. Easter asked, "What, are you
queer for the guy or something?" Bridges repeated that
Kelly was just a friend, and Easter responded, "Look
son . . . . You want to work on my crew, , , . you stay
out of other people's business." Bridges protested that he
liked working for Easter and that all he was doing was
giving Kelly a ride home. Easter said okay but that if
Bridges failed to return, Easter would find someone else.
Bridges replied that he would be back in time for work
the next afternoon and nothing more was said. -
Bridges testified that he drove Kelly to Las Vegas and
that he returned early enough to report on time for work
on' May 15. Shortly after arriving on the jobsite, he was
approached by Easter who announced that he had laid
Bridges off at 7 a.m. that day. Angered, Bridges said that
Easter should have telephoned him in Las Vegas so that
he would not have had' to return to Tonopah. Then,
Bridges asked why Easter laid him off. Easter replied,
"You seem to have a problem." Bridges, asked Easter to
explain, and the latter said, "You know ' what I mean
.. . . And I don't want no problems on my job."
Bridges responded that if the foremen continued to give
such "crap" to the carpenters,' there could be a wildcat
strike. Easter replied, "To hell with your wildcat strike.
Get the hell off my job." Easter said nothing more and
did not give Bridges a termination notice. Bridges left
Easter and a few moments later encountered Aiton III
near the office trailer. During their conversation, which
I have previously described, Bridges asked him "`Wasn't
my work satisfactory?' He says, `That's 'not the point. I
Bridges denied threatening Easter with a wildcat strike prior to his ter-
mination
65 Kelly contradicted Bridges in this regard . Thus, the former testified
that on returning to the dry camp, he spoke to a group of several carpen-
ters, including the entire night crew and Jim Easter, about possibly pick-
eting the project Bridges said that he would honor the picket line, but
Micheli said that he would run over Kell y. After listening , to all this,
Easter walked away just as Kelly and , Micheli began arguing and went
into the trailer of a member of the night crew. Easter failed to deny
either version of this incident
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have to back my foremen up. . . . Anyone that creates
any problems from now on is going down the road.1"66
The record establishes that regarding the decision to
terminate Bridges and the rationale for the action, Re-
spondent 's evidence is contradictory and utterly confus-
ing. As to the former, under questioning by me during
redirect examination , Easter stated that at the conclusion
of the night crews ' shift on May 13, he knew that some-
thing had to be done about Bridges but that "I hadn't
made up my attitude." Moments later, however , Easter
evidently made up his mind , as he testified that the deci-
sion to discharge Bridges was made "that first
night. . . . But I wanted to talk to my supervisor." Re-
minded that on May 13 rather than mentioning possible
discharge to Bridges , he spoke only in terms of transfer-
ring Bridges to another crew or placing him inside the
wall forms and asked again whether the discharge deci-
sion was reached that night . Easter altered his testimony,
stating, "Not really then . . . . The following day... .
Around noon ...." The foregoing must be contrasted
with Easter's admission during cross-examination that,
notwithstanding Bridges' apparent refusal on the previ-
ous night to accept either of -the aforementioned alterna-
tives, on May 14, prior to work that night , Easter had no
reason to believe that Bridges would not work where he
was instructed to work : "I believe he would have tried
it, yes." Nevertheless, and more supportive of his later
testimony, according to Easter, he spoke to Aiton III,
concerning Bridges , while they inspected the night
crew's assigned work area that afternoon . "I approached
[Aiton III] and told him I thought I was going to have
to make some changes in my crew-that I couldn't use
Bridges on my crew." According to Easter, Aiton III re-
sponded that the former should go ahead and terminate
Bridges if that was what Easter wanted to do. Aiton III
did not corroborate this conversation.
Easter testified during direct examination that, after
being informed that it would not work that afternoon
(May 14) and on returning to the dry camp , the members
of the crew , including Bridges, and Easter met in Bob
Micheli's trailer . According to Easter, every other crew-
member expressed the hope that he would transfer
Bridges because no one wanted to work around him as
"they were scared that he would drop something." In
front of the other crewmembers , Easter turned to
Bridges and said "that I couldn't use him, and he would
have to transfer." Bridges responded that "he would go
to Las Vegas that evening and come back and think
about it . And I asked him, I said, `Well, I can get your
check now .' But he proceeded to come to Las Vegas
without picking up his check." Thereupon, Easter fur-
ther testified, because Bridges refused all alternative jobs
offered to him, he went to Jim Joy that evening and "I
asked him for Mr. Bridges' check."
Later , during his aforementioned questioning by me
and redirect examination, Bridges reaffirmed the crew
meeting in Micheli 's trailer after the crew returned from
the jobsite on the afternoon of May 14 but denied any
66 Although he testified extensively at the hearing, Aiton III did not
deny this conversation, and I previously credited Bridges as to what was
said.
conversation with Wendell Bridges as "he was already
gone. . . . Bridges wasn't there . He left for - Las Vegas
... at 3:30. As soon as I talked with him at the jobsite."
Reminded of his earlier testimony , Easter quickly re-
called that Bridges had been present and that he told
Bridges to take his final check with him back to Las
Vegas so that he would not have to return to Tonopah.
Thereupon, Easter contradicted his prior version of the
meeting , testifying that Bridges said, "I'll try to -get a
transfer when I get back from Las Vegas." As with this
latter response, Easter had changed the circumstances,
resulting from that meeting, he was asked to explain
why, with Bridges now willing to leave his crew, he
went to Jim Joy to request Bridges' termination-`Be-
cause when he left to go to Las Vegas , he didn't come
back till after the job-we'd already been working an
hour or two." Informed that this last response did not at
all comport with the facts as previously -developed,
Easter once again changed his testimony, stating, "He
didn't even give me a good response . He said, `I'm going
to Las Vegas and I 'll see you later."'
Concerning the reason for Bridges ' termination , Easter
testified that he instructed Jim Joy on the evening of
May 14 to place "unsafe" as the reason for the discharge:
"He asked me why, and I told him he, was unsafe to my
crew." Joy informed Easter that Bridges ' final check and
a termination notice would be prepared and be ready by
7 a.m. the next day (May 15). Despite these rather ex-
plicit instructions, for some reason, Respondent has
never seemed to understand the real reason for Bridges'
termination . Thus, the next morning when , according to
Easter, he went into the office trailer and Office Manag-
er Flinchum handed him=a termination notice for Bridges
which notice gave as a reason , "drunk on the -job."
Easter stated that he immediately returned the notice to
Flinchum and asked , him to issue , a new termination
notice, reading "for safety reasons . . . ." Contradicting
Easter, Flinchum testified -that either Aiton Jr. or Joe
Lively instructed him on May 13 to prepare a termina-
tion notice for Bridges , reading "too slow , poor work."
Accordingly, he prepared a termination notice for
Bridges, which was received into the record as Respond-
ent's Exhibit 22 and which contains a checkmark next to
the notation "Too slow-poor work." Further, Flinchum
specifically denied preparing any termination notice for
Bridges, stating that the latter , was drinking on the job.
In contrast to this testimony , Easter averred,, "I terminat-
ed . . . Wendell Bridges because he was . . . not too
slow, but unsafe." Finally, and further confusing the
exact reason for Bridges ' termination , is Respondent's
Exhibit 24, a document prepared by Flinchum , and which
is a list of all discharged employees and the reasons for
such ; next to his name the reason for Bridges' termina-
tion reads: "Not qualified."
Whatever the' reason for his termination, Bridges was
terminated by Easter on May 15 . The latter testified that
Bridges arrived at the jobsite at 5 p .m., 2 hours late, and
that he immediately spoke to Bridges, telling the latter
that he was being , discharged because he was "unsafe."
Bridges "got a little belligerent" and said "that he was
BUCK BROWN CONTRACTING CO.
going to wobble the job." Easter replied, "Wobble be
damned . I could care less."s 7 -
2. Analysis
The consolidated amended complaint alleges that Re-
spondent terminated Wendell Bridges in violation of Sec-
tion 8(a)(1) and (3) of the Act. In support, the General
Counsel argues that Bridges engaged in protected con-
certed activities during his brief period of employment
by Respondent (complaining to Lively about being as-
signed to the night crew and about having to work less
than a 10-hour shift, attempting to gain the reinstatement
of Kelly, and supporting Kelly in a threatened wildcat
strike) and that Easter exhibited unlawful animus regard-
ing Bridges' aforementioned activities. In contrast, Re-
spondent minimizes the extent of whatever protected ac-
tivities in which Bridges may have engaged and asserts
that Easter exhibited no unlawful animus in -his conduct
toward Bridges. Further, counsel for Respondent con-
tends that Bridges was terminated for legitimate rea-
sons-unsafe work. -
Analysis of the record discloses that not only did
Bridges engage in protected concerted activities during
his brief tenure of employment with Respondent but also
that Respondent was well aware of the extent of and
nature of Bridges' activities. Initially; although Bridges
did not so testify, Easter admitted that on the night of
May 12, Bridges informed him that Bridges intended to
go over Easter's head and complain directly to Joe
Lively about having been assigned to the night crew. In
this regard, the record discloses, and it was uncontro-
verted, that earlier in the day Bridges had agreed to
work the night crew on an experimental basis, that at
some point in the evening he was informed by Bob Mi-
cheli that the night crew was to work less than a 10-hour
shift, that Bridges became angered by this information,
and that early the next morning (May 13) he had a
heated conversation with Lively on the subject of the
night crews' hours of work. Throughout his entire testi-
mony, James Easter impressed me as being a contradicto-
ry and utterly dishonest witness who did not know the
meaning of candor, and, except for inadvertent admis-
sions or when corroborated by others, I do not rely on
his-testimony. Based on the foregoing, and the record as
a whole, I believe that 'Bridges did, indeed, inform
Easter, on the night of May 12, that he was going to
complain directly to Lively the next day but that the
subject matter was going to be the night crews' hours of
work-not Bridges' assignment to that crew and that
Easter's testimony is nothing more than a "cover-up" of
the true nature of that conversation. Although not a
matter covered by the Union's collective-bargaining
agreement, the matter of the night crews' hours of work
was a matter of urgent and common concern to all those
on the crew, and when Bridges, who, I previously stated
was a candid and forthright witness as to all matters,
complained to Joe Lively concerning this issue, he en-
gaged in protected concerted activities. Cal-Wafts Inc.,
X67 I grant the General Counsel's motion to correct the transcript in
this regard.
,513
supra; Rose's Stores, supra; Air Surrey Corp., supra.ss
Further, although there is no record evidence that Easter
was aware that Bridges actually spoke to Lively, the
record does warrant the conclusion that on May 12
Easter was aware that Bridges intended to go over Eas-
ter's head and do so the next day.
Next, all witnesses are in agreement that on May 14
Bridges sought Easter's consent to employ Robert Kelly
on the night crew and I credit Bridges that he threatened
to take the matter over Easter's head and directly to
Lively. Further, by his own admission, Easter refused to
employ Robert Kelly, stating that he wanted no "prob-
lems" on his crew.69 There can be no doubt that. Bridges
engaged in conduct protected by Section 7 of the Act in
making this request on Kelly's behalf. Thus, notwith-
standing that the latter had just been terminated by Re-
spondent, such termination was, I have previously con-
cluded, unlawful, and Kelly, therefore, remained as an
employee of Respondent. Even if not unlawfully dis-
charged, Kelly must be viewed as a potential employee
inasmuch as, with management's admitted assent, Kelly
was diligently engaged in seeking employment on car-
penter crews, supervised by all foremen, other than Don
Davis. In this context, Bridges' request that Easter employ
Kelly on his crew is directly analogous to an employee's
protest to a supervisor regarding the discharge of a fellow
employee-conduct that the Board and courts consider
as within the protection of Section 7 of the Act. NLRB
v. John S. Swift Co., 277 F.2d 641, 645-646 (7th Cir.
1960); Auto-Truck Federal Credit Union, 232 NLRB 1024,
1028 (1977). Further, the definition of "employee,"
within the meaning of Section 2(3) of the Act, has tradi-
tionally been viewed as broad enough to encompass po-
tential employees. Phelps Dodge Corp. v. 1VLRB, 313 U.S.
177 (1941); , Pioneer Printers, 201 NLRB 900 (1973).
Therefore, Bridges' request, on behalf of Kelly, was pro-
tected and concerted in nature. Finally, as to this May 14
conversation, although denied by Bridges, and of import
in characterizing the latter's conduct, is Easter's admis-
sion, which I credit, that Bridges threatened that "they"
were going to strike the project-the comment coming
immediately after Easter refused to hire Kelly on his
crew. It is gainsaid that a strike, or concerted work stop-
page, in protest of the discharge of a fellow employee
constitutes protected concerted activity. Go-Lightly Foot-
wear, Inc., 251 NLRB 42 (1980); Diagnostic Center Hospi-
tal Corp. of Texas, 228 NLRB 1215 (1971). In agreement
with ' the General Counsel, taking into account its con-
text, the conclusion is warranted that Easter could only
have taken ' Bridges' threat as a protest' of Kelly's dis-
charge or, at least, as a statement of support for such a
68 I do not believe that Bridges engaged in protected concerted activi-
ties when he complained to Lively on the afternoon of May 12 about his
assignment to the night crew. Such appears to have been , by Bridges'
own admission , a personal complaint about a matter of concern only to
himself I agree with Respondent in this regard . Inked Ribbon Corp., 241
NLRB 7, 12 (1979).
69 1 place no particular significance on the the reason for Easter's re-
fusal except to , the extent such reflects on his overall attitude towards
Bridges.
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
protest-conduct protected by Section 7 of the Act.
AMP, Incorporated, 218 NLRB 33, 36 (1975).70
Having established that Bridges engaged in protected
concerted activities, however limited, and that Respond-
ent, through Bridges, was aware of, or suspected, such
conduct, I believe that the record establishes, and the
General Counsel has proved, that Jim Easter, a newly
appointed foreman and admittedly afraid of "problems"
caused by his crew, harbored animus toward Bridges be-
cause the latter apparently went over his head and com-
plained directly to Lively about the crews' hours and he
supported Robert Kelly, who had recently been termi-
nated by another foreman, and that Easter's termination
of Bridges resulted from same. As to this, I initially note
the ample-and well documented-evidence of Respond-
ent's unlawful animus toward ' all union members , particu-
larly those who protested perceived problems with their
terms and conditions of employment. Specifically as to
Bridges, as between himself and Easter, I credit the testi-
mony of Bridges regarding the late afternoon or early
evening conversation` of May 14 (during which Bridges
informed Easter that he was leaving in order to drive
Kelly back to Las Vegas), and the discharge conversation
of May 15. Further, I view Bridges' uncontroverted con-
versation with Aiton III, immediately after his discharge,
as revealing the exact nature of Respondent's unlawful
animus toward him. Thus, during, their- early evening,
May 14 conversation, Easter accused Bridges of being
"queer" for Kelly and warned him that in order to
remain on his crew, Bridges should "stay out of other
people's business." Clearly, this was nothing less than a
thinly veiled threat of discharge if Bridges continued to
support Kelly-conduct protected by Section 7 of the
Act. Next, during their discharge conversation on May
15, - Easter asserted that Bridges had a "problem" and
that he wanted "no problems" on his crew. That Easter,
who averred that he wanted to avoid conflicts with
other supervisors, quite obviously was again referring to
Bridges' protected concerted activities and not to the tat-
ter's job performance is clear from the subsequent com-
ments of Aiton III, regarding the fact that Bridges' work
was not an issue or cause of his discharge: "That's not
the point . . . . Anyone that creates any problems from
now on ' is ' going , down the road." (Emphasis added.)
There can be only one inference drawn from, the afore-
mentioned-that- Bridges' problem was having engaged
in protected concerted activity and that he was terminat-
ed for having so participated.
Turning-next to whether Respondent has established
that Bridges would have been terminated notwithstand-
ing having engaged in conduct protected by Section 7 of
the Act, I note that Respondent's defense rests solely on
the testimony, of Jim Easter and conclude, based on my
belief that his demeanor was that of an untruthful wit-
ness, that this defense is nothing more than a sham and
pretextual in nature. In this regard, I credit the testimony
70 I place no reliance on the alleged strike comments by Bridges, in
support of Kelly, back at the dry camp on May 14. I do not do so par-
ticularly because it cannot be definitely established that Easter was
present to hear, or even became aware of, anything said by Bridges.
Thus, I note the contradictory testimony of-Bridges and Kelly and do
not believe that any conclusions may be drawn therefrom.
of Bridges regarding his work and the events of the
night of May 13, his only work on the night crew. Thus,
I believe that Bridges, Micheli, and Curtis performed
that work of tying a wall form for an inside wall of the
crusher building; that Bridges was assigned to, and
worked, the feeder position; that although inexperienced
at such work while supported only by means of a safety
belt, Bridges did not cause any `unnecessary delays in the
rate of work that night; and that although Micheli and
Curtis may have believed work- was progressing more
slowly than normal, such was the fault of the 'crews' la-
borer, a fact about which Micheli and Curtis were un-
aware. Notwithstanding Bridges' testimony, Easter insist-
ed that his decision to terminate the former was based
solely on his observation that Bridges was an "unsafe"
worker. However, despite Easter's consistent testimony,
the record, as a whole, is utterly contradictory on this
point. Although Easter maintained that he informed both
James Joy and Robert, Flinchum, the office manager,
that "unsafe" was the reason for Bridges' discharge, such
did, and does, not appear on any of Respondent's docu-
mentation of the termination. Rather, two termination
notices were prepared for Bridges; the first asserted that
Bridges had been, drinking on the job and the second
listed as the discharge reason: "too slow-poor work."
Further, in a document that was prepared expressly for
the hearing, Bridges is listed as having been discharged
for being "not qualified." Moreover, Flinchum's testimo-
ny directly contradicted that of Easter. Thus, although
the latter says he specifically instructed Joy to list unsafe
as to the discharge reason, Flinchum stated that either
Joy or Aiton Jr. instructed him to list "too slow-poor
work" as the rationale. Also, despite Easter's testimony
to the contrary, Flinchum specifically denied ever pre-
paring a termination notice for Bridges,, which, notice
listed drinking while working as the reason.
Besides the aforementioned problems with the ration-
ale for Bridges', termination, Easter's testimony concern-
ing his decision-making process was contradictory, con-
fusing, and uncorroborated. Thus, not only did Easter
contradict himself as to when he decided that Bridges
must be terminated (was that decision reached on the
night of May 13, at 12 noon on May 14, or at approxi-
mately 6 p.m. on May 14) but also he was contradictory
as to what Bridges supposedly -said at the alleged crew
meeting on May 14, which comment, according to
Easter, precipitated,his request to Joy for Bridges'.termi-
nation (of course, at one point Easter denied the former's
presence at the meeting). Also Easter, contradicted him-
self as to exactly why he went to Joy,on May, 14 with
the aforementioned request, at one point testifying that
his rationale was that Bridges' absence left him a worker
short, on his crew-a -reason that would place the dis-
charge decision subsequent to 3p.m. on May 15. Fur-
ther, I credit Bridges' testimony, that he never refused
Easter's offer, after work on May 13, to move him inside
the wall forms during the tying process, noting that Eas-
te{'s admission , that prior to work on May 14, he be-
lieved Bridges would accept whatever work was as-
signed to him, corroborates Bridges as to that point.
Bearing in mind the admission, I fail to understand Eas-
BUCK BROWN CONTRACTING CO.
ter's assertion that he was forced to seek Bridges' termi-
nation because the latter refused to accept any job alter-
natives that Easter offered. Finally, although Easter as-
serted that he discussed the termination of Bridges with
Aiton III prior to learning of Bridges' support for Kelly,
Aiton III, despite extensive testimony, failed to corrobo-
rate Easter on this point, `permitting the inference that he
would not have corroborated Easter.
Accordingly, inasmuch as Respondent's defense ap-
pears to be a sham and pretextual, the inference is per-
missible, indeed, warranted that the true motive for the
termination of Wendell Bridges is one that Respondent
sought to conceal-his protected concerted activities.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966); J. P. Stevens & Co.., 247 NLRB 420
(1980). In these circumstances, I' conclude that the termi-
nation of Bridges was violative of Section 8(a)(1) of the
Act.71
E. The Discharges of David M. Doran and John,R.
Angle
1. The facts
David Doran, who is a carpenter by trade and a
member of the Union, was among the initial group of
carpenters hired by Respondent for work at the mine
project in Tonopah-starting to work about April 1. Ini-
tially, Doran was assigned to work in the yard area
where he constructed wall forms under the direct super-
vision of Joe Lively. While under the latter's supervision,
Doran and another carpenter, Don Jackson, continually
complained about Lively's propensity to perform carpen-
ter work despite a contractual prohibition against such.
These complaints culminated in Lively threatening to
terminate both Doran and Jackson if they continued to
complain in that regard.72 At 'some point in April, Jack-
son was promoted to a foreman position, and Doran was
assigned to his crew. After Jackson resigned his position
in early May, Doran was assigned to work on the car-
penter crew at the reclaim tunnels, under the supervision
of Bruce Alford. According to Doran, the reclaim tun-
nels crew consisted of himself, John Angle, Mitchel
Getz, Bob Steadman, and John Steadman.
The record establishes that Aiton III was appointed to
the position, of superintendent, in overall charge of the
reclaim tunnels area, on approximately May 1, Accord-
ing to Doran, from the day of his own assignment to Al-
'ford's crew until his termination on May 30, he observed
Aiton III, in violation of the Union's collective-bargain-
ing agreement , giving work orders directly to carpenters
on eight or nine different occasions . Doran further testi-
fied that he complained to Mike Herndon regarding the
conduct of Aiton III "a couple of times." Unable to
recall specifically who, Herndon testified that "the
71 Although he clearly engaged in protected concerted activities and
was discharged for same, 'there is no evidence that Bridges engaged in
union activities ., Accordingly, I shall dismiss that portion of the consoli-
dated amended complaint , alleging that Respondent violated Sec 8(a)(3)
of the Act by that conduct. .
72 The exact wording of Lively's threat to Doran and Jackson and the
'surrounding circumstances were more fully set forth and analyzed earlier
in the instant decision
515
whole crew down at the reclaim area" on various occa-
sions complained about direct supervision by Aiton III.
Thereafter, without identifying the source of the com-
plaints, Herndon had two separate conversations with
Aiton III regarding that subject . During one conversa-
tion, according to Herndon, Aiton III asked why he
could not directly supervise the carpenters at the reclaim
tunnels ' as by doing so, he would avoid wasting time
searching for Bruce Alford. Although not disputing this
logic, Herndon explained that Aiton III was wrong, that
the chain of command, as set forth in the contract,
would be broken, and that the crewmembers worked for
their foremen.
Notwithstanding Herndon's admonition, the record
discloses that on May 28, Aiton III assumed supervision
of the reclaim tunnels crew from Alford and directed its
work for the entire day. According to Aiton III, after
having observed the work of that crew for a 2-week
period, he believed that its production was not at an ac-
ceptable level; however, he was, not sure ,whether this
production failure was the fault of the crew or of the
foreman. Accordingly, "I then spent one full day actual-
ly supervising the crew on my own and giving them
orders." Concluding that the carpenters on the crew
were working "in a very efficient manner," he decided
that Alford was at fault and that he should be replaced.
That he acted in violation of the Union"s collective-bar-
gaining agreement does not appear to have been a con-
cern to Aiton III.
. In any event, according to Doran, he reported for
work on May 29 at 6 p.m. at which time Alton III "gave
a little speech before we went to work. He apologized.
He said, 'Guys, I'm sorry I had to take over for the day,
but I had to find out who was screwing up, you or your
boss."' After commending the crew on doing, a good job,
Aiton III announced that a new foreman would be trans-
ferred to the reclaim tunnels area . As the short meeting
concluded, Doran testified, "I confronted him and told
him that there was no excuse for breaking our union
rules , because our union's weak enough the way it is.
And he just stormed off." John Angle, who is a member
of the Union and had been working on the Tonopah job-
site since May 1 (at all times on the reclaim tunnels
crew), 7 a testified that on the day after he supervised the
72 Angle testified that on the morning of May 21, Aiton III asked for
volunteers from the reclaim tunnels crew to help in an emergency situa-
tion at the crusher building work area at which, with a concrete pour
scheduled to occur that day, problems arose with the wall forms. Aiton
III told the employees that "if we would come with him right then, he
would pay us for our break." Angle, who believed that the union con-
tract requires payment whenever members are forced to work through
the normal break period, Getz and John Steadman volunteered to help,
and the record discloses that they worked without morning or lunch
breaks, bracing a wall form while the 'concrete pour progressed. After
completing their work and taking lunch breaks , Angle and the others re-
turned to the reclaim tunnels area where, in the presence of the entire
crew, according to Angle, he complained about the conditions under
which the three employees worked and demanded extra wages for work-
ing through the morning and lunch breaks . Bruce Alford replied that he
would check with management.
Angle further testified that he spoke to Alford that night in the dry
camp and on, at least, three or four other occasions regarding his demand
for payment for the missed morning and lunch breaks on May 21 . He fur-
Continued
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crew, Aiton III spoke to the carpenters prior to work
and apologized for what he did the day before. Aiton III
said there been trouble at the reclaim tunnels;, that, at
first, he believed the problem was the fault of the crew;
but that now he realized that the problem resulted from
Alford being a "poor" foreman. After instructing the
men to commence working, Aiton III was approached
by Doran, who said that the crew was not supposed to
take orders, from Aiton III because he was a superintend-
ent. That latter replied "that he would get a foreman."
According to Angle, Aiton III "wasn't happy" inasmuch
as he abruptly broke off the conversation and walked
away. Recalling that he spoke to each crewmember indi-
vidually rather than to the reclaim tunnels crew as a
whole, Aiton III testified that he explained to each car-
penter what the, problem was and what he intended to
do as a solution. According to Aiton III, he so spoke to
Doran, and the latter replied, "I don't feel you have any
business running the crew." He responded "that I had to
do 'it to make sure that the crew itself was not at fault."
Aiton III further testified that Doran indicated his agree-
ment, and Aiton III walked away. The record further
discloses that John P. Hendershot Jr. assumed the role of
foreman over ' the reclaim tunnels carpenter crew that
day at approximately noontime.
The record reveals that on the next day (May 30)
Doran and Angle , were assigned to "pour watch" duty
and that such required them to work through the normal
lunch hour. The concrete pour was not completed until
approximately 12:45 p.m., at which time both employees
took their lunch breaks, eating together in back of the re-
claim tunnels job shack.74 Doran testified that for lunch,
he ate a hamburger and drank A & W root beer from a
can but that he did not observe whatever Angle ate or
drank. According to Doran, 10 or 15 minutes into the
break period,, Aiton III approached and asked what they
were doing. Doran replied that they were eating lunch
as their pour watch had been completed. Aiton III asked
where they were supposed to go after lunch, and after
both men responded that they did not know; the superin-
tendent replied that he would send Hendershot over
with instructions.75 Aiton III then left where Doran and
Angie were eating , and 10 minutes later, Hendershot
came over to' them and ordered them to help construct a
scaffolding, which was necessary for work on a footing
of the radial arm stacker. Regarding the lunch break that
day, Doran denied drinking any sort of alcoholic bever-
age. Regarding what he consumed for lunch, John Angle
testified, that he ate - a. hamburger and drank Gatorade
from a can, which was enclosed in a styrofoam cooler.
ther characterized Alford as not only never appearing upset at Angle's
complaints but also as agreeing with the validity of Angle's demand. Fi-
nally, approximately 5 days prior to Angle's termination on May 30,
Alford informed Angle that Acton III had decided that "we would get
paid for the lunch but we wouldn 't get paid extra for the break ." As far
as can be determined from the record , the incident was closed.
74 The record establishes that this job shack is located between the
two reclaim tunnels and that it was regularly used by the members of the
crew for their luncheon breaks. Neither Doran nor Angle explained why
each chose to eat lunch behind rather than inside the job shack this day.
75 Doran stated that while Aiton III spoke to them , both had their
luncheon food and drinks on the ground between them and that Aiton III
said nothing about alcoholic beverages
Angle stated that although he noticed that Doran also
ate a hamburger, he -had no idea what beverage Doran
drank. According, to Angle, Hendershot was the first su-
pervisor to come over to them. He -told Doran and
Angle to help construct the scaffolding at the radial arm
stacker after they finished eating lunch, saying-nothing
about Doran and Angle drinking beer or any other alco-
holic beverage. Hendershot left them, and, Angle further
testified, 15 minutes later , Aiton III walked over to
where the two employees were seated. Angle continued,
testifying that Aiton III spoke directly to Doran, that
Angle could not hear what was said because of the loud
equipment noise, and that by the time of this conversa-
tion, he and Doran had finished eating - and returned all
the luncheon materials to their respective lunchboxes.
Like Doran, Angle specifically denied drinking any alco-
holic beverage with his lunch.
Both Doran and Angle testified that after lunch and
pursuant to Hendershot's instructions, they helped work
on the wood scaffolding at the radial arm stacker.76 Ac-
cording to Doran, no more than 15 minutes after finish-
ing lunch and while both he and Angle were working
high on it , Aiton III drove up to the base of the struc-
ture in a pickup truck and yelled up to them, "Guys, I'm
going to have to let you go." After instructing the two
employees to go back to the office and to pick up their
final checks, Doran- asked Aiton III why he was dis-
charging them. The superintendent replied "Drinking on
the job," and he said that supervisory witnesses who
were on the hill saw them drinking. Thereupon, Aiton
III drove off in the pickup truck. Doran further testified
that he did not deny this accusation,- averring, first, that
he had not time to do so as Aiton III drove off so quick-
ly and, later, because "I figured it wouldn't-do any good
anyway." Doran added that he left the jobsite at ap-
proximately 1:30 -p.m., after Jim :Joy gave, him his final
check. As with the lunch events, John Angle's recollec-
tion of the scaffolding incident contradicts that of Doran.
Thus, Angle testified that 15 minutes after- lunch and
while he and Doran were working on the scaffolding,
Aiton III drove up to the work i area in a pickup truck
and motioned to Doran and Angle to come over to him.
They did so, and "[Aiton III] was upset. He just got out
of the truck and said `We are going to have to let you
go; get your tools."' He then told the two employees to
get into the truck; they did so and were taken to the
office trailer, where Angle received his final check. Ac-
cording to Angle, while angry; Doran said-nothing when
76 The record establishes that in May 1980 the radial arm stacker,
which rests on a series of concrete footings, was located on a hill, 10 to
15 feet above the reclaim , tunnels job shack and facing--the rear of the
building. David Doran testified that the particular footing, atwhich the
crew was constructing the scaffolding, was located 50 feet from the back
of the job shack . Dennis Jensen , the foremen who was supervising the
construction of the scaffolding, testified that the footing was located in
the middle of the radial arm stacker, was , directly above the job shack,
and was 50 to ¢0 feet from 'the building. Aiton III corroborated Jensen as
to the placement of the footing, estimating that such was 80 feet from the
job shack. The foregoing must be contrasted with the testimony of car-
penter employee Mitchell Getz who stated ', that the footmg,.on which the
crew was working on May 30, was the , second or third from the end (to
the left of center as-one faced the job shack) and was, 50 yards from the
back of the job shack.
BUCK BROWN CONTRACTING CO. 517
Aiton III terminated them, and he did not learn the
reason for their terminations until told by Doran, while
driving back to the dry camp , that they had been ob-
served drinking on the job.7 7
Respondent's defense , and justification for the termina-
tion' of Doran and Angle,' is that both- were observed
drinking beer with their lunch on May 30, and, as such is
directly prohibited by Respondent, the two employees
were immediately terminated . 78 Dennis Jensen , the fore-
man over work on the radial arm stacker at that time,
testified that on May 29, he ate his lunch in the reclaim
tunnels job shack and that present and also eating lunch
were Doran, Angle, Mitchell Getz, Bob and John,Stead-
man, and John Hendershot. He further testified that both
Doran and Angle were drinking beer with their respec-
tive lunches, that Doran was drinking Coors light beer
(the "Silver Bullet"); and that Angle drank Pabst Blue
Ribbon beer. According to Jensen, neither he nor Hen-
dershot commented on what he observed.' However,
Hendershot, who is a member 'of the Union, had worked
on the jobsite since early May and had just been appoint-
ed a foreman that day by Aiton III, and who admittedly
did not think beer with lunch was particularly harmful,
testified that not, only did he observe Doran and Angle
drinking beer during the lunch, but also he said right
then to both, "Look don't do it in front of me. I just got
up here. It's company policy, you know. Any other time
... you're going to -be sent down the road."79 As to
71 Admitting that he received a termination notice, Angle testified that
he was not interested in its contents as he was such a great distance from
Las Vegas.
78 The record disclosed that on being hired each individual, employed
by Respondent at the Tonopah Mine project, was given by Respondent a
sheet of paper that set forth various work-related and safety information
and that required the employee's signature at the bottom . Regarding-the
consumption of alcoholic beverages, the document states: "A WORD OF
WARNING--A man must be completely sober to STAY ALIVE around
construction equipment . We will not tolerate drinking on the jobsite;
don't plan to sober up at work. We will not risk the lives of our men on
the retarded reflexes of the man who has `had a couple."' Both Doran
and Angle admitted knowledge of this rule. In this regard , Doran identi-
fied R. Exh. 14, which is a copy of the aforementioned document and
which bears his signature . Angle was shown a similar document, which
beams' what was alleged as his signature but, he testified, was his name but
not his signature . Comparison of this alleged signature with a sample of
Angle's handwriting by me disclosed that the writing of Angle's name on
Respondent's document was not done by Angle.
79 During cross-examination , John Angle testified to a similar conver-
sation but under entirely different circumstances. According to Angle,
Hendershot was introduced as the new foreman to the entire crew after
lunch on May 29 and that later in the afternoon , Angle was standing next
to Mitchell Getz in the reclaim tunnels area while the latter had a con-
versation with Hendershot. "[Hendershot] said he . likes to drink a
beer at lunch and he didn't see anything wrong with it, but we shouldn't;
make it publicized or get caught with it." Hendershot also said that "he
didn't want to lose his position by somebody seeing us drink." Under fur-
ther questioning, Angle changed his version of Hendershot 's warning to,
"If you are going to drink beer, keep out of sight" and, finally, to, "He
said he didn't want anybody seeing us drinking beer during lunch; it
might hinder his job." Mitchell Getz, a carpenter by trade and a member
of the Union, who had been employed by Respondent since May 1, testi-
fied to a third version of this conversation . According to Getz, early in
the morning on the day he assumed the position of foreman, while the
crewmembers were preparing for work , Hendershot spoke , on a variety
of subjects, among them .drinking on the job. He said "that there was a
company policy that there should be no drinking on the job; that he
didn't mind , personally ; and so that, if we were going to, we would have
to be very discreet and police the area-get rid of the empties ...."
whether either employee consumed beer with his lunch
that day, Angle admitted eating his lunch in the job
shack, stated that he ate a hamburger and drank a 7-Up,
but had "no idea" who else was in the shack, what
Doran drank with his lunch, or whether anyone had beer
with his lunch that day. Doran could not recall whether
he -drank beer with his lunch and did not know what, if
anything, Angle consumed during lunch,80
In any event, Jensen testified that immediately after
lunch he pulled Hendershot aside "and told him that I
knew that we were working for; and if they would not
only fire them, they -would also fire us for letting them
drink .... [Hendershot] said he would take care of it.",
According to Hendershot, Jensen did, indeed, speak to
him after lunch regarding beer drinking-"He said this
was part of the problem that had been going on." What-
ever, .having just been appointed as the reclaim tunnels
crew foreman and cognizant of work-related problems in
that area,81 Hendershot attempted to solve the perceived
problem of beer drinking on that crew by speaking to'
'Mike Herndon later that afternoon. "And I told him, `Go
up and say something to them. If they're going to do it,
at least have sense to 'hide it because we've got a compa-
ny policy; and the instant they're caught, they're going
to be fired. 82 That evening, Hendershot' also reported
the beer drinking incident to Aiton III[. Although not
identifying the employees involved; Hendershot told
Aiton III "just that the conversation happened, an inci-
dent had happened, and what transpired of it." He con-
cluded, "And if its [sic] caught again, that's all there is to
it, then they're fired." Aitori III replied, "`Well, O.K.,
that's fair .... you know next time, its you or them."'
Aiton III corroborated the occurrence 01F such a conver-
sation,- placing it late in the afternoon of May 29 and
stating that Hendershot accused, the entire crew of drink-
ing beer during lunch that day. According to Aiton III,
Hendershot informed him that Hendershot warned the
crew not to be caught drinking again; Aiton IIl[ replied
that in those circumstances, he Would not become in-
volved.
Notwithstanding his pledge, Aiton III testified. that on
May 30 at the exact time Doran and Angle were eating
their lunch behind the reclaim tunnels job shack, he' was
standing at the radial arm stacker footing, on which
80 Another alleged luncheon participant, Mitchell Getz , who "exhibit-
ed" a detailed memory as to other incidents, testified, "I've forgotten
Isic] what I was doing on May 29."
81 According to Hendershot, at the time Alton III promoted him, the
former told him that "the job just wasn't going right , and he needed pro-
duction ... .
82 'Herndon corroborated Hendershot, testifying that one day at the
end of May, the latter came to him and explained that he had just been
appointed as the foreman at the reclaim tunnels and that some members
of his crew had been drinking beer during lunch . Hendershot then asked
Herndon to speak to the crewmembers and tell them that such was
against the company's rules and that they should not do it. Herndon fur-
ther testified that the next day, he went over to the reclaim tunnels area
and spoke to the two employees who were on pour watch duty "I just
explained to them that the foreman had notified me that some of the men
were drinking , audit was illegal , and we'd signed a paper . . that we
wouldn't drink on the job, and that they could be fired , if they were
caught" .Herndon identified the two carpenters as Dave Doran and' Bob
Steadman and said that be could not recall speaking to John Angle.
Doran and Angle specifically denied speaking to Herndon on May 30.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dennis Jensen's crew was working . 83 Jensen approached
and asked whether Aiton III was aware of what was
happening behind the job shack. The latter, who had
been observing the work, "turned toward the job shack
and saw Doran and Angle, sitting with their backs up
against the shack and drinking beer.84 After Jensen sug-
gested that if he wanted a better look, he should go
down to the job' shack, Aiton III walked down the hill
to the left of the job shack, through the reclaim tunnels,
and around the front of the job shack, and came up to
where Doran and Angle were seated from behind
them.85 According to Aiton III, as he came around the
side of the building, both, employees were holding beer
cans in their right hands; then, as each noticed Aiton III,
he placed the can behind his legs.86 Also, both Doran
88 The exact positions of Aiton III and Jensen are crucial to Respond-
ent's defense . Thus, Angle testified that while he and Doran ate,lunch,
the remainder of the crew was, at least, 300 yards away and the closest
persons to them were some surveyors , who were standing 75 yards away.
Also, Hendershot testified that at approximately the same time that
Doran and Angle were eating lunch, he observed Aiton III with "a
whole bunch of company officials . . . . up on top of the hill there, look-
ing over the project out in our area." Hendershot stated that the group of
officials had just completed an inspection of the concrete pour at the
radial arm stacker and were "just standing there looking the site over."
Hendershot further testified that the footings of this structure were at the
bottom of this hill and that the job shack was at essentially the same level
as that of the radial arm stacker footings . Also, he testified that he was
on the hill but the others were higher up than he; that there was an unob-
structed view of the job shack from this hill; and that inasmuch as he was
working at the time, Hendershot did not spend any significant amount of
time observing the company officials, Finally, Hendershot could not
recall seeing either Jensen or Aiton III at the footing of the radial arm
stacker.
Mitchell Getz also testified regarding the positions of Jensen and Alton
III while Doran-and Angle ate lunch on May 30. According to Getz, he
was working up on the scaffolding at the footings of the radial arm stack-
er and that he observed Doran and Angle eating lunch behing the job
shack. At this time, Getz further testified, Alton III was "on the hill be-
tween the stacker and the crusher." As to whether be observed Aiton III
at the base of the footings , Getz averred that "I don't remember" and
that "I did not see it" He was more specific as to Jensen , asserting that
the latter was not, at that time, directing work at the footing and that
Getz did not even see Jensen at that location while Doran and Angle ate
lunch.
84 Asked how he knew what Doran and Angle were drinking from a
distance away, Aiton III responded, "We could see the cans." When
questioned further by me , Aiton III identified the beer brand that Doran
was drinking 'as Coors Regular Asked how he could be so sure, Aiton
III averred that - the brand of beer is contained in a distinctive yellow can.
As to Angle, Aiton III admitted, "I never did see Angle clearly."
es Asked on cross-examination why he chose to have a closer look at
what Doran and Angle were doing , Alton III said, "Basically to actually
catch them, say, red-handed," and "I needed to make sure, yes, before I
discharged them." Pressed as to why it was necessary to catch Doran
and Angle "red-handed," Aiton III responded, "For basically what we're
going through now. It's not a matter of whether Mr. Joy believed me.
It's other persons that might get involved ." Asked the same question
again , he answered, "Because I'm not in the habit of viewing something
from a distance , not letting the individuals in question know anything and
just show up with their checks .. .. I obviously had to make it apparent
to them ... let them know I caught them ." Finally, Aiton in denied
that it was his desire to catch Doran and Angle red-handed.
88 Aiton III testified that prior to both Doran and" Angle hiding the
cans behind their legs, he confirmed , in his mind, that Doran was drink-
ing from a Coors Regular beer can, recognizing "its color" and "the gen-
eral configurations" on the label. However, as to Angle, Aiton III no-
ticed only that he was holding a "blue can," at the hearing admitting that
he did not know it was a beer can but that he just assumed the can was,
in fact, a beer can as "the . . can I saw in his hand resembled a Pabst
can " Further , Aiton Hl denied that Angle 's can was within a styrofoam
container . Later, during cross-examination, Aiton III became more posi-
and Angle` were sitting, with Doran closest to Aiton III
and Angle no more than 6 feet away. Confronting the
two men, Aiton III further testified, "I said, `Gentlemen,
we can't go for this drinking .... I know you've been
warned yesterday by .. Hendershot, and - we can't go
for it' ... Doran replied, `Yeah, we were warned about
drinking in the job shack, so we figured we'd get Out
back here where we couldn't get caught 1$187 Denying
that he instructed the two employees to start working at
the radial arm stacker and testifying that he assumed
Doran and Angle would- follow him, Aiton III -turned
and walked away,
Respondent's other_ alleged eyewitness to this incident,
Dennis Jensen, testified that while he was directing work
that day at the footing of the radial arm stacker,88 he no-
ticed that both Doran and Angle were sitting at the back
of the job shack and that each was drinking a can of
beer.89 At that point, Aiton III approached him and,
pointing to where Doran and Angle were sitting, said
they would work with .him the remainder of the day.
While Aiton III looked toward the two employees, he
asked "if they were doing what he thought they were
doing." Jensen replied, "It looks like it." Thereupon, ac-
cording to Jensen; Aiton III, on his own initiative, said
that he was going to go down to the job shack and come
up behind Doran and Angle. Jensen further ,testified that
Aiton III then walked down the hill and- around the job
shack and came , on Doran and Angle from behind and
that Aiton III had a conversation with them. Next,
Jensen testified, Aiton III walked back up the hill to
where he stood, instructed Jensen to keep Doran and
Angle on the ground, and asked if Jensen knew where
Hendershot was. 'A moment later, the latter walked over
to Aiton III and-Jensen. Hendershot and the superintend-
ent spoke about Doran and Angle drinking that after-
noon. Hendershot stated that they had been, warned the
day before, and both men agreed that Doran and Angle
would "get their checks." Jensen also testified that the
two discriminatees worked for him for -just 15 -minutes
that afternoon 'and that he did not assign either one to
work up on the scaffolding.
Denying that he, spoke to Jensen after confronting
Doran and Angle that afternoon, Aiton -III -testified that
he met Hendershot 'on the road between the reclaim tun-
nels. "I told him that I had caught [Doran and Angle]
drinking again ... and told [him] that I was going to
tive regarding the can from which Angle drank: "I saw Mr . Angle drink-
ing out a beer can that I knew at that time was a beer can . ,
87 According to Aiton, in, he believed that Angle heard what he said
as there, was no loud noise interference (while a crane was operating, it
was over 200 feet away). ,
89 Jensen testified that Mitchell Getz was working up on the scaffold-
ing atl that time.
89 Jensen averred, "I could see vividly what they were drinking at that
distance ." As to Doran, he was drinking Coors Light -beer-"a lot of
' people call it the Silver Bullet . And you can spot that can a mile away.
It[']s a distinct can." As to Angle, Jensen identified his can as a Pabst
Blue 'Ribbon beer can and denied that the can was wrapped within a
styrofoam container. According to Jensen , "Frankly, because I never
thought Pabst was a very good beer, that's-one reason I noticed [Angle]
drinking Pabst-because I figure be probably got it on sale. And the
SiIvet Bullet , it[']s just a distinct beer Matter of fact, its, the beer I
drink."
BUCK BROWN CONTRACTING CO.
have to fire them ." Hendershot replied, "Oh, shit," and
shrugged his shoulders ; Aiton- III turned and walked
away. 9° Hendershot testified that he was unaware that
Doran and Angle had been observed drinking that day
until so informed by Aiton III. According to Hender-
shot, Aiton III came over to him and said that his pep
talk did not work because Aiton III caught Doran and
Angle drinking again . Hendershot states that he replied,
"Well, you caught them, What the hell do you -want me
to do." He further- testified that as he knew where Doran
and Angle were eating their lunches, he went and in-
formed them that they had been caught drinking.
After speaking to Hendershot, according to Aiton III,
he went to the office trailer and instructed Office Man-
ager Flinchum to prepare final checks and termination
notices for the two discharged employees . Aiton III then
walked out of the office and encountered Mike Herndon
just outside the trailer . According to the former, he
asked Herndon if he knew what had happened and said
that he had to fire Doran and Angle . Herndon replied,
"That's all you can do." Next, Aiton III testified that he
drove back toward the radial arm stacker and was sur-
prised to find Doran and Angle working there. He in-
structed the two employees to go to the office saying,
"`I'm going to have to let you go for drinking."' Neither
denied the accusation , and Doran responded that he
should go ahead and fire them and threatened that the
job would be struck the next day . Aiton III' then offered
to give ]Doran and Angle rides, but they refused.
Mike Herndon testified that he first learned that Doran
and Angle had been terminated during ' a conversation
with Afton III and Hendershot ' that afternoon in the yard
near the office trailer. Aiton III said that he had just
caught the employees drinking beer and was going to
"terminate them. Later, according to Herndon , he noticed
Doran and Angle preparing to leave the jobsite, and he
spoke to them, Doran seemed .angry but neither employ-
ee denied having consumed beer, that afternoon. "The
only thing [Doran] said to me was that it was his word
against theirs."91
The General Counsel contends that, assuming Doran
and Angle were, in fact , drinking beer on May 30, such
was not a ' valid reason for discharge inasmuch as not
only was the rule' prohibiting the consumption of alco-
holic beverages on the jobsite not strictly enforced but
also the practice was actually condoned by Respondent.
In support, he points out, and the record establishes, that
beer cans; on occasion, could be found in the employee
parking area near the jobsite92 and that it was the
custom of union members to drink beer with their
lunches. He further points to the testimony of Wendell
Bridges that the night crew foreman , Jim Easter, openly
consumed the contents of a one ' pint bottle of vodka just
so On cross-examination, Aiton III changed Hendershot's reply to,
"Oh, shit .... And I had warned both those guys yesterday."
91 At the hearing, both Doran and Angle denied drinking any sort of
alcoholic beverage on the afternoon of May 30 . Regarding which brand
of beer each favors, Doran stated that he normally drinks Coors Regular
beer but, on occasion, he drinks Coors Light, and Angle stated that he
normally drinks Pabst Blue Ribbon beer.
9 a The parking area was utilized by employees of all subcontractors,
including Respondent , on the ,lobsite.
519
a few -hours prior to work on May 13. Next, counsel
relies on the testimony of carpenter Mitchell Getz on
cross-examination that on one occasion, he observed
Foreman Obie Bodiroga sitting in a truck, parked be-
tween the crusher building and the radial arm stacker,
and drinking whiskey, Getz averred that he knew the
foreman was drinking whiskey because "it was in a whis-
key bottle." However, under intensive questioning, Getz
admitted that he did not see a brand name and that "I
don't know that it was a whiskey bottle. It was a flat
pocket flask, that I have identified with a pint bottle of
liquor:" Getz further admitted-that he only assumed the
"flask" contained whiskey as "that is the only thing I
have seen in bottles that look like that." Specifically per-
taming to the carpenter crew at the reclaim tunnels,
Doran, Angle, and Getz all testified that the practice of
drinking beer with lunch was common on that crew and
was openly permitted by Foreman Bruce Alford. In this
regard although there is, no evidence that Aiton III or
other upper level managerial officials were aware,, Doran
testified that Bruce Alford brought beer to the jobsite
one day and informed the crewmembers that he had no
objection to the crew drinking beer with lunch as long
as cans were put back in the lunchboxes and not left
lying on the ground and that, thereafter, all crewmem-
bers had beer with their respective lunches, with the
drinking normally confined to the job shack. Both Angle
and Getz corroborated Doran in this regard; however,
Getz added that there was much beer can litter around
the reclaim- tunnels area, with as many as "a couple of
cases of cans" lying around. This latter assertion is open
to doubt in ' light of the above testimony of Doran, the
testimony of -Mike Herndon that he never saw empty
beer cans on the jobsite, and the testimony of Angle,
who gave as the reason why he put the can, from which
he had been drinking- during lunch on May 30, back in
his lunchbox-"We never threw trash out. That was one
of the things Bruce always was after us about . . . . He
didn't want garbage, or trash, or anything." Getz testi-
fied ° further that beer drinking during lunch continued on
Hendershot's'crew after the terminations of Doran and
Angle, with Getz drinking beer approximately three
times a week and in Hendershot's presence in the job
shack-a practice that the latter specifically denied. Fi-
nally, the General Counsel points to the content of Hen-
dershot's comments to the' crew on May 29 as establish-
ing that Hendershot, who saw nothing wrong with a
beer for lunch, did not mind beer drinking as' long as the
people, left no beer can litter on the project. In this
regard, Angle interpreted Hendershot's comment' as fol-
lows: "I took that to mean that you better not drink any
beer on the job when he was there."
2. Analysis
The consolidated amended complaint alleges that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
terminating employee David Doran and John Angle. In
support, the General Counsel argues that each engaged
in protected concerted activity, that the individual who
effectuated the terminations, Aiton III, harbored animus
against all employees who created "problems" on the
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
project, and that the discharges occurred just 1 day after
Doran angered Aiton III by accusing the latter, in the
presence of the entire reclaim tunnels crew, of acting in
violation of the union contract by directly supervising
the crew . Contrary to this , counsel for Respondent
argues that Doran and Angle were terminated 'for violat-
ing Respondent 's express prohibition against the con-
sumption of alcoholic beverages on the jobsite. As to
this, the General Counsel asserts that Respondent's de-
fense is wholly fabricated - and, even if Doran and Angle
were drinking on May 30, that Respondent's "prohibi-
tion" was openly violated by its own foremen and that
drinking on the jobsite was condoned.
At the outset, I believe that the General Counsel, has
made a prima facie showing that David Doran's union
activities were a motivating factor in Respondent's deci-
sion to terminate him. Initially, Respondent 's witnesses,
Lively and Aiton III, admit that Doran , on at least two
occasions , raised contract-based complaints regarding
their conduct-to Lively for performing bargaining unit
work and to Aiton III for having directly supervised the
work of the reclaim tunnels crew . That Lively reacted
adversely to Doran 's conduct is clear, for he admittedly
threatened to terminate both Doran and Don Jackson be-
cause of the complaints . As to Aiton III, he did not deny
the testimony of Wendell Bridges that on the afternoon
of May 15 Aiton III warned, "Anyone that creates any
problems from now on is going down the road ." I have
previously drawn the inference that , based on Respond-
ent's conduct herein , by "problems," Aiton III was refer-
ring to "union problems" or employees engaging in pro-
tected concerted activities . In the ensuing 15-day period
not only did Mike Herndon do so on two occasions but
also Doran directly complained to Aiton III regarding
assuming supervisory authority over the reclaim tunnels
crew. The next day after so complaining, Doran was ter-
minated by Aiton III. Clearly, then, the inference is war-
ranted, indeed, mandated that Doran's union activities
may have been a motivating , factor in his discharge.
As to John Angle, whether a prima facie showing of
unlawful animus has been established is less certain.
Thus, notwithstanding the aforementioned animus exhib-
ited by Aiton III toward union adherents , the fact is that
Angle's sole instance of having engaged in union or
other protected concerted activities concerns his demand
to, Respondent for payment for having worked through
his morning break and lunch break periods on May 21.
In this regard, Angle admits that he raised the matter
only to Bruce Alford and that Alford not only agreed
but also exhibited no, anger over Angle's demands. Fur-
ther, there is no evidence that Aiton III reacted nega-
tively to Angle 's demand or that after Aiton III respond-
ed, Angle continued to insist on increased compensation,
In fact, Angle seems to have accepted Respondent's
answer to his demand . Accordingly, although Angle may
have engaged in union and/or other protected concerted
activities, I will- not draw the inference that such was a
motivating factor in his discharge. However, I do find
merit in the General Counsel 's alternative argument that,
if Doran was unlawfully terminated by Respondent,
Angle was an unoffending victim of the conduct ., In con-
cluding that the discharge of employees , along with uals to either Herndon or Aiton III.
clearly, unlawfully terminated workers, is likewise un-
lawful, the Board often adopts the rationale that "it is
clear that their layoff was essential to give colorable sup-
port to the claim [that the discharges were lawfully moti-
vated]. As the claim has been found to lack merit, their
layoff was also unlawful." Hall of Mississippi, Inc., 249
NLRB 775, 778 fn. 7 (1980). Accordingly, inasmuch as
Respondent's defense is identical for both Doran and
Angle (with each discharge intertwined in the other), if
Doran was unlawfully discharged, the same conclusion
must be drawn as to that of Angle.
As with -all the instant discharges, the question is has
Respondent established that the discharges of Doran and
Angle would have occurred notwithstanding the union
and/or protected concerted activities of David Doran.
Put another way, has Respondent established that these
two employees were discharged for having violated a
work rule, of which' both were admittedly aware-a rule
prohibiting the comsumption of alcoholic beverages on
the jobsite. In this regard, I must initially determine
whether Doran and Angle were, in fact, drinking beer
with their respective lunches on May 30, and I note that
such involves essentially a matter of credibility-do I be-
lieve Aiton III and Jensen that they observed the forego-
ing, prohibited conduct or do I credit the explicit denials
of same by Doran and Angle. Both the General Counsel
and counsel for Respondent have set forth cogent and
convincing arguments that not one of the above individ-
uals should be credited and, indeed, I did not find either
Aiton III, Jensen, Doran, or Angle to be a particularly
convincing witness. Thus, as to the former pair, their tes-
timony as to what they observed, said, and did on' May
30 was utterly contradictory. Likewise, Doran and
Angle, besides contradicting each other as to the events
of May 30, were directly' contradicted on significant
points by other witnesses, who testified on behalf of the
General Counsel. Additionally, I found utterly unpersua-
sive their respective lapses of memory with regard to im-
portant events and conversations. Yet, they either were
or were not drinking beer with lunch that day.
With credibility problems as to each of the four main
witnesses, I look to the other witnesses and the record,
as a whole, in order to resolve this matter. Two wit-
nesses, in particular , impressed me as being honest and
candid in their respective testimony-Mike Herndon, the
job steward, and John Hendershot, the replacement fore-
man. Based on their testimonies, I conclude that on May
29, Hendershot observed Doran and Angle drinking beer
with their lunches; that he warned and threatened each
with termination if caught doing so in the future; that
Hendershot informed both Herndon and Aiton III of the
events of that afternoon;93 that on the morning of May
30, Herndon warned Doran, and perhaps Angle, about
the consequences of drinking beer on the jobsite; and
that when Herndon' confronted Doran after the termina-
tions, the latter did not deny the-stated reason for such
averring only, "it was his word against theirs." As to the
record ' itself, two facts, regarding the events of May 30,
ss In so domg, I credit Hendershot that he did not identify the individ-
BUCK BROWN CONTRACTING CO.' 521
are of utmost significance. First, by their own admis-
sions, neither Doran nor Angle, at any time, denied that
he had been- drinking beer with lunch that afternoon.
The General Counsel sought to minimize the adverse
consequences of this fact by asserting that Doran be-
lieved that it would be useless to argue with Respondent
and that Angle deemed it of little utility to contest the
issue when he was so far from home. I cannot accept
such explanations; rather, I believe that discharge for
cause, especially for arguably spurious reasons, is-or
should be-of sufficiently serious magnitude to warrant
some sort of a protest-even if limited to a denial. But,
assuming the uselessness of a protest to Respondent,
surely, if Respondent's ,allegations were untrue, one
would think that Doran and Angle would immediately
lodge a protest with the Union, the entity most likely to
be supportive. Yet, when Herndon spoke to Doran as the
latter was leaving the jobsite, Doran still did not deny
the allegation, choosing to plead that it was his word
against Respondent's. But, of even more significance to a
determination of credibility than the foregoing factor is
the related fact that, contrary to Doran's assertion to
Herndon, Doran and Angle were carrying with them the
proof of their innocence-the cans from which they drank
during lunch. This must be the case inasmuch as Angle
testified that after he finished eating, he placed his empty
can of Gatorade back in his lunchbox. Presumably,
Doran did the same, for Angle further testified, "We
never threw trash out. That was one of the things Bruce
always was after us about." He continued, stating that all
luncheon refuse was carried away from the jobsite by
the employees in their lunchboxes as there were no trash
barrels located on the jobsite. In these circumstances, it
is not accurate to say that whether Doran and Angle
drank beer with lunch on May 30 was a matter of their
word against that of Jensen and Aiton III. Rather, when
in their view, wrongly accused of such that afternoon,
all that was required of either Doran or Angle was to
exhibit the proof of his innocence, which, as far as can
be determined from the record, was stowed'in his lunch-
box. Yet, neither discriminatee thought to do so. The
reasons for this and the failure of both to,' at least, deny
the accusation of drinking beer on the jobsite were, I
must conclude, that not only were both drinking beer
with lunch but also that each, presumably, was carrying
an empty beer, can in his lunchbox on leaving the jobsite
that afternoon. Based on the foregoing, and the record as
a whole, I credit the testimony of Aiton 11194 as to the
fact that on the afternoon of May 30, initially while
standing at the base of the footing of the radial arm
stacker and later as he confronted the two employees at
the back of the job shack, he observed David Doran and
John Angle, sitting side by side-behind the job shack and
each drinking beer with his lunch, and as to his subse-
quent movements and conversations that daly.9 s
The General Counsel argues that, notwithstanding my
aforementioned conclusions, Doran and Angle were ter-
minated for having engaged in protected[ concerted ac-
tivities as Respondent condoned the practice of drinking
alcoholic beverages on the jobsite. Insofar as this argu-
ment bears on the motivation of Aiton III, on whose ob-
servation and decision the discharges were based, I find
it to be without merit. Regarding the presence of a few
beer cans in the employee parking area, inasmuch as the
location was utilized by many different construction craft
workers, employed by several jobsite subcontractors, it
could hardly be said that such represents condonation by
Respondent of violations of its drinking while on the job-
site prohibition. As to the conduct of James Easter in
drinking vodka before work on May 13, while perhaps in
contravention of the rule, as there is no evidence that
Aiton III was aware or permitted this, I fail to see how
this bears on the motivation of Aiton III in terminating
Doran and Angle. Next, I do not credit the testimony of
Mitchell Getz that he once observed Obie Bodiroga
drinking "whiskey" -from some sort of a container on the
jobsite. Not only was his testimony as to this alleged in-
cident contradictory and apparently based on assump-
tions, but also Getz' demeanor while testifying was that
of one biased on behalf of the Charging Parties. He im-
pressed me as testifying to whatever would advance the
causes of the discriminatees and as willing to embellish
his testimony to accomplish this goal. Perhaps the most
pertinent example of this was his ' utterly incredible asser-
tion that as many as a couple ' of cases of beer can litter
could be found around the reclaim tunnels area. No
other witness corroborated 'this, and both Doran and
Angle insisted that Alford instructed the crew never to
leave empty -beer cans in the work area and that they
complied with this.
The most troubling aspect of counsel's contention con-
cerns the alleged granting, by Bruce Alford, of permis-
sion to the members of his, crew to drink beer with
lunch. I note initially that the occurrence of such rests
on the less than credible testimonies of ]Doran, Angle,
and Getz. There is not a scintilla of corroborating evi-
dence except for the fact that Doran and Angle were ob-
served having beer with lunch on May 29. Presumably,
they would not have acted in such blatant disregard of
Respondent's prohibition against such conduct unless
they had previously been permitted to do so. In any
event, the fact is that if such permission had been grant-
ed, such was done by a prior supervisor. Their new su-
pervisor, John Hendershot, specifically warned them
against, drinking beer on the project and ,can, in no way,
be considered to have also permitted such. This is clear
from Angle's admission that he interpreted what Hender-
shot said as prohibiting the drinking of beer in the latter's
presence. Moreover, Mike Herndon explicitly repeated
94 I do- so notwithstanding the utterly conflicting testimony of Dennis
Jensen, on whose testimony I do not, at all, rely. I reiterate that Jensen
impressed me as being a biased witness who tailored his, testimony to fit
Respondent's view of the facts. I can find no explanation-or justifica-
tion-for Respondent' s use of him as a witness.
9s Noting that Aiton III and other witnesses , including Herndon and
Hendershot, are contradictory regarding what was said during conversa-
tions that afternoon , I do not think that such detracts hom the credibility
of any witness, believing that honest men may honestly differ as to their
recollection of past events. Finally, as to whether Aiton III was in a posi-
tion to observe Doran and Angle prior to walking down to the job
shack, I note that neither Hendershot nor' Mitchell Cietz, who, in any
event, I do not credit herein, denied that Aiton III may, at some point,
have been at the footing of the radial arm stacker.
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this 'warning certainly to Doran and perhaps to Angle
the next day . Accordingly, contrary to 'the General
Counsel, there was no , practice, as of May 30, on the re-
claim tunnels carpenter' crew permitting the drinking of
'beer with lunch and, at least , Doran was well aware of
this.96 Finally, as between Hendershot and Getz, I rely
on the denial, by the former , that any drinking occurred
on his crew , subsequent to the discharges of Doran and
Angle.
I shall, therefore; recommend that the paragraphs of
the consolidated amended complaint, pertaining to the
discharges of Doran and Angle , be dismissed.
F. Other Alleged Violations of the Act
I have previously concluded that in order to inhibit
union and other protected concerted activities at the
Tonopah Mine jobsite, Respondent's management offi-
cials, often taking advantage of the Union's insecurity
'with regard to its collective-bargaining relationship with
Respondent, engaged in blatantly -coercive tactics. Thus,
I have credited Mike Herndon and Cliff Kahle that on
two occasions Project Manager Jim Joy "predicted" that
Respondent would lose its construction contract for the
project and that such would be awarded to Brown and
Root, a nonunion contractor, if union memberfem-
ployees caused "union problems" or otherwise engaged
in protected concerted activities. The record establishes
that Joy never offered Respondent's employees or the
Union any supporting evidence necessary to establish
that the consequences, of which he spoke, were beyond
Respondent's control.-Absent such, the law is clear that
Joy's predictions constitute nothing more than veiled
threats to close the business if employees engaged in con-
duct protected by Section 7 of the Act and that this con-
duct is violative of Section 8(a)(1) of the Act. NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969); George C.
Shearer Exhibitors Delivery Service, 246 NLRB 416, 419
(1979); El Rancho Market, 235 NLRB 468, 472 (1978);
Yellow Cab Co., 229 NLRB 643 (1977). Next, I have
credited Don Jackson, as corroborated by David Doran,
that Joe Lively threatened to terminate them unless they
stopped complaining about his propensity to perform
unit work-in violation of the collective-bargaining
agreement. There is no question that both Jackson and
Doran engaged in conduct protected by Section-,7 of the
Act,and that, therefore, Lively's threat, in response to
the activities, was in violation of Section 8(a)(1) of the
Act. Cal-Waits, Inc., supra; Rose's Stores, supra., Also, I
have credited Herndon that on one occasion Joy interro-
gated him regarding his duties as job steward and threat-
ened future adverse consequences because of the con-
duct. I agree with the contention of the General Counsel
that such constitutes harassment of an employee' engaged
in activities protected 'by 'Section 7 of the Act and, thus,
96 I give no credence to Doran 's self-serving statement that had he
known, he would never have violated such an express prohibition.
Rather, I credit Aiton III that Doran did not believe that anyone could
see hint drinking beer in back of the job shack that afternoon
Also, there is no evidence that Aiton III was aware of any beer drink-
ing by the reclaim tunnels crew during the month of May. Thus, not-
withstanding whatever Alford may have permitted, I believe Aiton III
was ignorant of such.
conduct violative of Section 8(a)(1) of the Act. Blount
Bros. Corp., 230'NLRB 586 (1977). Further, the uncon-
troverted threat' of Aiton III to Wendell Bridges on May
15, that those creating "union problems" from that point
on would be fired, clearly constitutes a threat of termina-
tion ' for engaging in union activities and is violative of
Section 8(a)(1) of the Act. Stewart-Warner Corp., 253
NLRB 136 (1980). Further, I believe that Easter's state-
ment to Bridges on teaming that the latter intended to
take Robert Kelly to Las Vegas ("Look son, .. '. You
want to work on my crew ... you' stay out of other
people's business.") constitutes the same type of-threat of
adverse consequences for engaging in protected concert-
ed activities and is, likewise, violative of Section 8(a)(1)
of the Act. Finally, Lively's interrogation of Randal
Fansler as to why he spoke to Job Steward Herndon on
April 24 constitutes unlawful interrogation in violation of
Section 8(a)(1) of the Act. Morton's IGA Foodliner, 237
NLRB 667 (1978).
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed -to effectuate the -purposes of
the Act. I have found that Respondent discharged em-
ployees Randal Fansler and Robert Kelly on May 6 and
14, 1980, respectively, in violation of Section 8(a)(1) and
(3) of the Act and that Respondent discharged employee
Wendell Bridges on May 15, 1980, in violation of Section
8(a)(1) of the Act. Accordingly, I shall. recommend that
Respondent be ordered to offer each employee immedi-
ate and full reinstatement to his former position of em-
ployment or, if the position no longer exists, to a substan-
tially equivalent position, without prejudice to any rights
and privileges to which he may be entitled. I shall fur-
ther recommend that Respondent be ordered to make
each employee whole for any loss of earnings he may
have suffered as a result of his discharge by payment to
him of the amount he normally would have, earned from
the date of his termination, with backpay to be computed
in the manner set forth- in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as described in Isis
Plumbing Co., 318 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977). Furthermore, it shall be
recommended that Respondent be ordered to post a
notice, setting forth its, obligations herein.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged, in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging employees 'Randal Fansler and
Robert Kelly on May 6 and 14, 1980, respectively, based
on their union and other protected concerted activities,
Respondent engaged in unfair labor practices violative of
Section 8(a)(1) and (3) of the Act.
4. By discharging employee Wendell Bridges on May
15, 1980, based on his protected concerted activities, Re-
spondent interfered with, coerced, -and restrained its em-
BUCK BROWN CONTRACTING CO.
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act and , thereby, engaged in unfair
labor practices violative of Section 8(a)(1) of the Act.
5. By threatening that Respondent could lose its con-
struction contract because employees engage in union or
other protected concerted activities; by threatening to
terminate employees because they engage in union or
other protected concerted activities; by threatening to
adversely affect the job steward's ability to perform the
duties and responsibilities of his position because of his
activities on behalf of the Union; and by interrogating
523
employees with regard to their union activities, Respond-
ent interfered with, coerced, and restrained its employees
in the exercise of the rights guaranteed them by Section
7 of the Act and, thereby, engaged in unfair labor prac-
tices violative of Section 8(aXl) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Unless specified above, Respondent engaged in no
other unfair labor practices.
[Recommended Order omitted from publication.]