Cal-Walts, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 974 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cal-Walts, Inc. and Carl A. Coates. Case 31-CA-
10249
September 30, 1981
DECISION AND ORDER
BY MEIMBtRS FANNING, JENKINS, AND
ZIMMERMAN
On July 2, 1981, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief to the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order,2 as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Cal-Walts, Inc., Los Alamitos, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
, Member Jenkins does anot rely on Hright Lin. i I)viion ij H 'righl
Li. Inc,,. 251 NLRB 1083 (19l). That Decision cncerns identifying
the cause if discharge where a genuine lafuil and ai genluille ullawful
reason exist Vherc, as here. the asserted lalul reason is founld to hbe a
pretest. oillv tic genuine reason renla:lillns he unla ful lne li attlempt
t)o apply W'righ Line in such ;i situa;ll is futile, cinfuisiig. and mislead-
mitg.
' Member Jekilnls ,{u l cornpute iterest ill accordalice itlh the for-
mula set forth itn i partial disslenl in Oltrivpiw .edaul (Clrporrlaton. 250
NIRI 14h (19t(0)
DECISION
SFAI- M1 NI O1: l!11. CASI
ByuRTON Ll nSCK, Administrative Law Judge: This
matter was heard before me in San Bernardino. Califor-
nia, on November 24 and December 9. 1980.' On Sep-
tember 9, the Regional Director for Region 31 of the
National Labor Relations Board, herein called the Board,
issued a complaint,2 based on an unfair labor practice
charge filed on July 21 by Carl Coates, an individual, al-
leging that Cal-Walts, Inc., herein called Respondent, en-
gaged in acts and conduct violative of Section 8(a)(l) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent fild an answer, denying the
commission of any unfair labor practices. All parties
were afforded full opportunity to offer relevant evi-
dence, to examine and cross-examine witnesses, and to
submit post-hearing briefs. Only counsel for the General
Counsel chose to file a brief. which has been carefully
considered. Therefore, based on the entire record, the
post-hearing brief of counsel for the General Counsel,
and my observation of the demeanor of the witnesses. I
make the following:
FINDINGS O1: FACT
I. JURISI)ICIION
Respondent, a California corporation, with an office
and principal place of business located in Los Alamitos,
California, is engaged as an electrical subcontractor for
numerous Government defense contractors. At all times
material herein, Respondent has been engaged as a sub-
contractor for Santa Fe Engineering, the general con-
tractor, to provide electrical work in the construction of
barracks buildings at the United States Marine Corps
Base in Twentynine Palms, California. Respondent. in
the course and conduct of its business operations at the
Twentynine Palms United States Marine Corps Base, an-
nually performs services valued in excess of $50,000 and
annually purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. 4 Respondent admits,
and I find, that it is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
i Ulles othcrsl stated, all dates heretil occurred it 1981).
rThe instanlt charge had origintally been consolidated for hearing ith
another related unfair labor practice charge. Iowexer. ltecr further i-
yestigation. the atter charge ,ilas svrered from the installt cormplailt and
dismissed
' 1ihe testimOiulies of the itllesses , hi were called o1i behalf of the
(Geieral CiIICIl r were Uiclrnltirocrted ad are therefore credited except
Swhere witllesses directl ciitradicted each other. 1t such circurlistalllcc,
I he credited that lestlimon , , hich. i light ofr the rectrd r is a a hole,
appeared to be more accurate. i-ira;ll. because f ttihe unciitro, elr rlcd
Ilature ofi the testilltll l hereil. ha e not had to rel upont he dmearn itor
of the l itlnesses it order to ascert.tln I1 trule facts; hoe cer I did fintd
all the , itnilescs herci toi be gner;allx ciandid anld forllright il their tc,-
IIrlolLics
i I1n , ie of tile ltated ( i llllc. e far t. l I cd tt cotl iider lor rule i
the other bhlaes for the ilstierloifi of uirislictill11 s1I, iare et forth iII the
Ceomplait
258 NLRB No. 126
974
CAL-WA'ALTS. INC.
II. ISSU IS
I. Whether, in or about June and July, Respondent's
employees engaged in protected concerted activities by
complaining to Respondent regarding insufficient funds
with which to cover their payroll checks.
2. Whether by their work stoppage on July 7 and 8,
Respondent's employees thereby engaged in protected
concerted activities.
3. Whether Respondent, on or about July 9, terminat-
ed its employees David Tomlinson, Rodney Beargeon,
Scott Coates, Joyce Coates, and Gilbert Zimmerman in
violation of Section 8(a)(l) of the Act.
4. Whether Respondent, on or about July 9, terminat-
ed Supervisor Carl Coates in violation of Section 8(a)(1)
of the Act.
Ill. THL AtI.I.GEI) UNFAIR I ABOR PRACTICES
A. Facts
Respondent, whose chief operating officer is Waldo
Slusher,5 is primarily engaged in providing services for
Government defense contractors. From August 1979,
until Ootober 1980, Respondent acted as an electrical
subcontractor in the construction of two separate proj-
ects at the United States Marine Corps Base in Twentyn-
ine Palms, California. On one project, a maintenance fa-
cility, Respondent was the subcontractor to another sub-
contractor, A & K Plumbing. On the other, two four-
story barracks buildings, Respondent performed the
wiring and other electrical construction work directly
for Santa Fe Engineering, the general contractor. Some
of Respondent's employees worked exclusively on one or
the other project, while others interchanged whenever
necessary. Gene Fusco was Respondent's supervisor at
the marine base. Ricky Wayne White was the project
manager for Santa Fe Engineering, herein called Santa
Fe, and its highest ranking management official on the
marine base.
According to the uncontroverted testimony of White,
who is responsible for approving all subcontractor ex-
pense billings for the barracks project, Santa Fe began
encountering financial problems with Respondent in the
fall of 1979. Initially, "we had asked for proof of pay-
ment on taxes." Next, "there was one massive problem
that came to a head in November of '79 that was a not-
approved benefit plan that [Respondent] had supposedly
been paying into that we were directed by [the resident
officer in charge of construction] to make restitution to
all the employees." As a result of these "major prob-
lems," Santa Fe "started monitoring closely [Respond-
ent's] work, their pay requests. the material coming in .
. . . [W]e monitored their weekly payroll . . . double
checking everything." However, notwithstanding such
safeguards and further exacerbating the already troubled
financial relationship between the parties, White learned
on March 9 from Respondent's employees that the latter
had insufficient funds on deposit at its bank to cover the
employees' last payroll checks. In response, the employ-
ees sent a telegram to Slusher, demanding immediate res-
" Slusher's exact title. position. or possible ownerhip interest in Re-
spondeni is unclear from the record
titution either by cashier's check or in cash. Finally, ac-
cording to White, fearing liability inasmuch as Respond-
ent was not a bonded contractor, Santa Fe altered its
payment procedure and "our procedure on paying [Re-
spondent] at that time went Irom monthly to weekly and
instead of sending out a weekly invoice for so much
work done, we paid by what we felt the work was; what
work we felt was completed on the job."' White further
testified that he did not believe that any such weekly
payments were ever withheld from Respondent once the
new payment method was instituted.
As a result of the employees' telegram, Respondent
began paying their wages in cash and continued doing so
until the end of March. At that time, Respondent hired
Carl Coates as its jobsite' supervisor at the marine base.
According to employee Gilbert Zimmerman, who had
been employed by Respondent since January as an elec-
trician, "Mr. Coates . . . said that he had made arrange-
ments with Mr. Slusher to set up an account in the 29
Palms [sic] . . . Security National Bank and that there
would be an account set up there to where we could
take our checks right to that bank every Friday and cash
them." Indeed, Respondent did establish a checking ac-
count at the Security Pacific National Bank branch in
Twentynine Palms, and employees again were paid their
wages by check. As far as can be ascertained, this "new"
payment method worked smoothly during April and
May; however, for an unexplained reason, in the first
week of June several employees received bad payroll
checks. This situation continued throughout the month,
with the Security Pacific National Bank branch refusing
to honor Respondent's payroll checks due to insufficient
funds.
In June, Respondent's work force at the marine base
consisted of Carl Coates, who, by that time, had been
given the title of project manager by Respondent, and
six employees-Joyce Coates, Scott Coates, Zimmerman,
Guillaume Weaver, David Tomlinson, and Rodney Bear-
geon.' Of said employee complement, Joyce Coates,
Scott Coates, Zimmerman, Tomlinson, and Supervisor
Carl Coates each received one or two "bad" payroll
checks during June. According to Joyce Coates, what
particularly upset her about Respondent's payment prac-
tices was that several of her personal checks. which
were based on her deposited, but dishonored, payroll
checks, were, in turn, not honored by her checking bank.
She further testified that her stepson, Tomlinson, and
Zimmerman individually complained to her with regard
to their own paycheck problems and that she, in turn, re-
layed this information to her husband and directly to
Waldo Slusher during several telephone conversations
that month. Joyce testified that Slusher was extremely
" White testified that his normal practice .as-and remains-to submit
monthly subcontractor rerrts to Santa Fe's main office and that reim-
bursement checks are normally ent to subcontractors each month
rThe record establishes that Carl Coates was in charge of and respon-
sihle fr all of Respondent's work at the marine hase-the maintenance
ficility and the barracks buildings.
JoIce Coates is the wife of Carl Coates. and Scott Coates is the lat-
ler' soin aild the stepson of Joyce In addition. Beargeon lived ith the
Coa;le family. and Tomlinson rode wsith Ihe othcr , each d;, Io the
marine hs i Carl Co;es' auioniobile
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brusque on these occasions, always responding to the
transmitted paycheck complaints--"the money [is] in the
bank." Corroborating his wife, Carl Coates testified that
not only was he upset over receiving bad paychecks but
also his wife, his son, Tomlinson, and Zimmerman in-
formed him how annoyed they were about receiving Re-
spondent's bad payroll checks. Coates further testified
that he spoke to Slusher on four or five occasions during
June specifically regarding said complaints, mentioning
the names of those who were complaining. As to his
wife, Slusher always insisted to Coates that sufficient
funds were in the bank. Eventually, whether motivated
by these complaints or not, all the bad June paychecks
were made good.
As the Fourth of July holiday would occur on a
Friday, the employees were to be paid on Thursday,
July 3. Earlier that week Slusher requested that Coates
drive to Los Alamitos on July 3 and pick up the weekly
payroll checks at Respondent's office. Coates, who testi-
fied that he also wanted to discuss job problems-in par-
ticular the continuing difficulty with cashing Respond-
ent's checks-with Slusher, left his home early that
morning for the approximately 3- hour drive to Los Ala-
mitos. He was accompanied by his wife, Tomlinson, and
Beargeon.9 Upon arriving at the office, Carl Coates re-
quested that the others wait downstairs, and he went into
the office and spoke to Slusher. Coates testified, without
contradiction, that they began their meeting by discuss-
ing work-related problems. Slusher asked whether on-
going strikes at the marine base were affecting work, and
Coates replied that there was enough work to do."'
Coates then raised the matter of the bad checks, and
Slusher "told me that he would make the checks right,"
and that there was enough money in Respondent's ac-
count to cover all prior bad checks, including his own.
Next, Slusher announced that he "wanted to reduce the
work force at that time to two people and possibly a
third as a laborer." He named Coates, Zimmerman, and
Weaver, if necessary, as those to be retained and Joyce
Coates, Scott Coates, Beargeon, and Tomlinson as those
to be laid off. Slusher explained "that he was not being
'Joyce Coates, who always accompanied her husband when he picked
up the employee paychecks because she was responsible for computing
the payroll, testified that several employees had requested that she once
again complain to Slusher about the bad checks. Beargeon. who had not
received any bad checks in June, testified that the check cashing siluation
was common knowledge, that he requested to accompany Carl Cates
that morning, and that he intended to ask Slusher to pay him il cash as
"I was afraid mine was going to be next." Finally, To mlinson, uwho first
learned that Carl Coates was on his way to Los Alamilos when he rwas
picked up that morning, asked to go with the thers-the reason I aenl
down there was to ask to be paid in cash."
"' The record establishes that several craft employees, including labor-
ers, carpenters, and block masons, struck during June and July. As to the
impact of these work stoppages on the work of Respondent. Santa Fe's
project manager White, testified, without contradiction, that "there was
physical work on the project site at all times for [Respondent] during
these strikes.... There was physical work that [Respondentl could have
done without any slowdown." As to the number of workers required to
perform this work. White stated that there existed "areas o ,sork that
would have taken a five-man crew . . . all the way hrough the strike
. without double working." While s testifying White candidly ad-
mitted that occasionally other subcontractors took advantage of the slo,\:-
down created by the strike to work less than a full cress. Hweser,
White did not condone the practice; "I would do swhlatever was neces-
sary to get more people on the job."
paid and the money was short and if we could slow it
down or reduce the force that possibly in 2 or 3 weeks
we could build it back up again." Coates protested that
he could not perform all the remaining work with just
two other workers. Slusher replied that "he didn't quite
agree with me; that [his lawyer] felt that two men could
be on the job and handle it, but he said that he would
get back to me and verify whlether or not it was going to
happen." The meeting thereupon ended: Coates returned
to the others, and they went to a restaurant for breakfast,
during which Slusher joined them. While nothing was
mentioned then about the possible layoff, during the
drive back to the marine base, Carl told Joyce Coates
"that Mr. Slusher had told him he was considering shut-
ting the job down."
Carl Coates and the others arrived back at the marine
base some time after 12 p.m., and Coates distributed the
payroll checks to the crew at approximately 2 p.m." A
short while later the entire crew and Carl Coates left the
jobsite and went to the Security Pacific National Bank
branch in order to cash their paychecks. Scott Coates
and Weaver were able to cash their checks; however,
bank officials informed the others that there were insuffi-
cient funds deposited in Respondent's account to cover
the remaining paychecks. The unpaid employees were
understandably upset in view of the pending holiday
weekend and the possibility of no spending money. Ac-
cordingly, Carl Coates rushed back to the marine base
and telephoned Respondent's office; a secretary informed
Coates that a deposit had been made that day. i2 There-
upon, Coates hurried back to the bank, and he informed
the remaining crewmembers and bank officials of the de-
posit. However, when the latter individuals again
checked the bank's deposit records, they could find no
such transaction. At that point and as the bank was
about to close, Coates told the employees that they
would be forced to wait until Monday to resolve the sit-
uation. According to Gilbert Zimmerman, "Most of [the
crew] were very upset because of the long weekend and
not having the money to go anywhere... . There were
no decisions of actually saying.... we aren't going to
do nothing; it was more wait until Monday to find out if
our checks were good.""
' Scott Coates, Zimmerman. and Weaver reported to the jobsitc that
mornling and worked a normal shift.
`' Waldo Slusher testified that he. ideed, possessed funds to co er that
seek's payroll and tha;ll he instructed his secretary to "make the deposit
during the noon hour." Ultinialel. hov ever, rather than his owrn secre-
tary. the secretary employed by Respondenil's altorne) deposited 3,7(X)
into Respondent's acciunt ith Security Placific National Bank. Said
trnsactio n as n1ol nade until 2 p.m July 3. illd wvas accomplished at
the "bank's l.a Mirada California. branch office
I specifically credit the General Counsel's itnnese in this regard.
E idently. given what must have been ani extremely bus time of a ex-
Iremely busy day, the individual who tiook Respondenlt's deposit was nl
able t transcribe the transaction so thal it would appear on te bank's
records that afternoon. Prculanahlby theli, an uflrlunalte-albeit under-
standable-resuh occurred. ith the bank officials in Trent)ynine Palms
having no knowledge of a transaction in I.a Mirada.;
" I do niot rely onti tie t stimi(ly of Jryce Coates that the cress decid-
ed on t)ha Thursday ;afternoon that the s roult refuse tlo stork if the
check, e cre nlot honored on Monday, Jul) 7 N ther employee si tes-
tified, all I find rlil record support (il arrant a crnclusioni that such a
result was reached. If anything, the unpaid crc nembers appear to hace
C Opilinuted
976
CAL-WALTS. INC.
On the following Monday, July 7, Carl Coates and Re-
spondent's entire crew-Joyce Coates, Scott Coates,
Beargeon, Zimmerman, Tomlinson, and Weaver-report-
ed for work at Respondent's jobsite trailer at approxi-
mately 6 a.m. As was apparent from their expressed feel-
ings at the bank on July 3, various crewmembers were
highly upset over their lack of money for the holiday
weekend. Coates thereupon telephoned Respondent's
office, and Raymond, the office clerk, assured him that a
deposit had been made on Thursday afternoon. Accord-
ingly, at 9:30 a.m., everyone left the jobsite and went to
the Security Pacific National Bank branch. Once again
each unpaid crewmember attempted to cash his or her
paycheck, and once again the bank officials refused to
honor the checks, with the explanation that there were
insufficient funds in Respondent's account to cover
them. '5 As they left the bank and returned to the jobsite,
the employees were clearly more highly agitated than on
the previous Thursday. While on his way back to the
marine base, Carl Coates stopped at the post office and
was given the following letter, dated July 3 and signed
by Slusher:
Dear Carl:
Bachelor Enlisted Quarters, 29 Palms
This is to confirm our conversation in this office of
today's date, wherein you were instructed that as of
Monday, 7 July, only yourself and Gilbert Zimmer-
man are to remain on the job until further notice.
Should a laborer be needed however, Guillaume
Weaver may be used.
Very truly yours,
CAL-WALT'S INC.
Coates returned to the marine base and, on arriving at
Respondent's jobsite trailer, found the entire crew gath-
ered together. Seeing Coates, Zimmerman angrily an-
nounced that he "wasn't going to turn another bolt or
another screw on the job until [his] check was good and
. . . that [he] wasn't going to work." After listening to
him, other employees voiced the opinion that Zimmer-
man was right and that they would do the same thing.
According to Zimmerman, "We told Carl, call them
down there and tell them we are not going to do any-
thing until these checks are made good." According to
Carl Coates, each crewmember, including Scott Coates
and Weaver, both of whom had cashed their previous
week's checks, individually announced that he or she
would refuse to work until the July 3 paychecks were
made good. At this point, according to Zimmerman,
"[Coates] responded by saying that he didn't blame us
but that he couldn't tell us to work or not to work: that
would have to be our decision."'6 However, the record
been too upset to have decided upon a definite course ,of conduct t that
lime.
i; I again credit the uncontlrovert ed lestimony Of the General Counlsel
sitnesses in this regard For ,halever reason. it is oh ions Ith.alr n record
on the July 3 deposit had. as yet, heen entered i the bank's deposit
i6 Regarding Coates' support for the employees' activilies. Jocc
Coates testified. "He said he ;would hack us up one hundred percent
that he really didn'r blalme us" No other wiltcss. including Carl Coates,
corrioboratcd this statement. and I do not credit it Rather. I helic e thatl
establishes that Coates did volunteer to call Respondent's
office one more time in an attempt to reach Slusher. He
did so but again was able to speak only to Raymond;
Coates told him " that these people were not going to
perform any work until we get the checks straightened
out."
Coates then left the trailer, located Rickie White,
showed him Slusher's confirming letter, and told the
latter about the work stoppage. Thereupon, Coates re-
turned to Respondent's trailer at which the crew was
still gathered. Deciding to inform them of Slusher's
layoff plans, Coates showed the layoff letter to Zimmer-
man" and the others. In doing so, Coates believed that,
based on past practice, "They still weren't officially laid
off. I couldn't lay them off. I didn't have their checks or
the termination slips or anything." Accordingly, he ex-
plained to the crew that no layoffs could take place until
he had the employees' final checks. With no likelihood
that the paychecks would be made good, the crew-
members carried out their collective threat and per-
formed no work that day. Finally, Slusher never commu-
nicated with Carl Coates that day in order to ascertain
the problems on the jobsite.
Meanwhile, according to Santa Fe's White, after
speaking to Coates that morning and learning about the
pending layoff and threatened work stoppage, he pon-
dered the matter and the possible ramifications and tele-
phoned Respondent's office at approximately midday. He
spoke to Waldo Slusher, and "I discussed with him at
that time that nobody was working on the job and that
we had work to do and we needed the people out
there." Slusher replied that " he was having problems at
the time and he would get it worked out tomorrow."
White then mentioned the former's letter, saying he did
not believe there would be proper manpower for the job.
Slusher said that "he felt that would be adequate for the
job but that he would get back with [White the next
day]." The conversation ended on that note.
The next morning, Tuesday, July 8, Carl Coates and
the crewmembers assembled at Respondent's trailer at
the normal starting time; however, the employees contin-
ued their work stoppage and refused to-and did not-
perform any work that day. 1 According to Carl Coates,
he made approximately four telephone calls to the office
but was unable to reach Slusher. Instead, Raymond told
him that Slusher would be out to the marine base later
that day "and was going to take care of everything."
Coates informed the crew that Slusher was coming;
however, at approximately 12 p.m., with the crew per-
forming no work and Slusher not there yet, he sent the
employees home. Thereupon, Coates told White to
Coates lust accepted the employee conduct, possibly believing i iustified
hut realizing there as nothing he could do.
'7 (ilbert Zimmerman repealedl, testified that he had no knowlledge of
arny decision to lay off the crewmemhers except for himself and possiblx
'Vea.lcr and that lihe did not see Sluher', letter. Hoc cer. I credit Coates
it this regaird and believe that Zimmerman':ls therwise candid and credi-
ble testlinion il as mistakeln oii this pilnt
C t(lles did i conistruction s ork in ither July 7 or .8; ho, ecr. tll
both d1;1a,. i response to a request fromn Rickie White. he did inspect al-
read! conpleted electrica:ll s ork ill order to make ccrltain such v.as func-
tioning properli
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inform Slusher, if he did come to the jobsite, that the
latter should meet Coates at his home. Coates then left
the marine base. Shortly thereafter, White sent a tele-
gram to Slusher, giving Respondent 48 hours in which to
have an adequate work force on the barracks jobsite.
Slusher arrived at Carl Coates' house late that after-
noon. Raymond, the clerk, accompanied him. Waiting
for Slusher were Carl Coates and his family (Joyce and
Scott) and Gilbert Zimmerman and his wife. According
to Joyce Coates, the meeting began with someone's com-
plaining about the bad checks. Slusher replied that he
would take care of the problem and said that "he was
going to close the job down." Joyce asked how long the
job would remain closed, and Slusher replied that such
would be for 2 or 3 weeks. Joyce asked when the job
would begin again; Slusher answered, "I don't know."
According to Joyce, another participant asked the reason
for the shutdown, but she could not recall Slusher's
answer, if any. The meeting ended with Slusher's stating
that he would meet the employees at the bank the next
morning to resolve the check-cashing problem. Zimmer-
man testified to a similar, but slightly different, version
of the meeting. "[Slusher] said that he was going to shut
the job down. Then Carl asked him if we were laid off,
fired or whatever. [Slusher] said that he was going to lay
us off; that it was something about the money on the job;
that he hadn't received money or something. He was
going to shut the job down for a couple of weeks until
he got this money situation straightened out. Then Joyce
asked if we were going to be hired back and he said that
he didn't know." Carl Coates asked if Slusher wanted
him to prepare layoff slips and lay off the crew the next
morning. Slusher said, "No," and that he would have ev-
erything straightened out and he would meet everyone
at the bank the next morning. During his testimony, Carl
Coates was corroborative of the statements attributed to
Slusher by the others, adding that Slusher began the
meeting by stating he understood everyone had quit; that
he (Carl Coates) said such was not true, and the employ-
ees were refusing to work until paid; and that Slusher
had checks with him that afternoon. Although he testi-
fied, Slusher failed to deny either the occurrence or the
substance of this meeting. 9
The next morning, Wednesday, July 9, Slusher met
Carl Coates and most, if not all, of the employees at Re-
spondent's Twentynine Palms bank.20 When the bank
opened, Slusher spoke briefly with a bank official once
each crewmember was able to cash his or her previous
week's paycheck. Then Slusher handed to each crew-
member and to Coates paychecks for that week. While
doing so, he announced that the job would be shut down
" That evening Respondent's attorney telephoned Zimmerman at his
home and asked that the latter continue working at the same salary.
When Zimmerman voiced discontent about the payment problems. the at-
torney offered to pay his wages in cash. Nevertheless Zimmerman re-
fused the offer. saying, "I was tired of the problems that were happening
out there .. and that I just wasn't going to be involved with it atny
more.
2" The record is unclear as to whether the entire crew or just those
who could not cash their checks on July 3 were present at the bank on
July 9. Carl Coates testified that present ere "all the employees that
hadn't gotten their checks cashed so that would mean everyone--well.
they were all there because they were going io receive final checks'
(Emphasis supplied.)
for 2 or 3 weeks and that, while he had the crews' final
checks, he would have layoff notices later. One employ-
ee asked if the workers would be put back when the job
began again; Slusher replied that he did not know. Nei-
ther at the meeting the day before or at the bank did
Slusher explain why he was laying off Coates or what
factors had influenced his decision to lay off the entire
crew rather than keep the job going with a reduced
crew.
For the remainder of that week (July 9-11), Respond-
ent had no work crew on the marine base, although
Slusher himself was at the jobsite each day. Rickie White
testified that he had several short conversations with
Slusher during these 3 days, each time asking when Re-
spondent would have an employee complement on the
job. Slusher's reply was that "[h]e was working on it."
Evidently, Respondent was successful, for, according to
White, commencing on July 14, and continuing through
October, Respondent had a regular four-man work crew
at the marine base, performing work pursuant to the con-
tracts with Santa Fe and A & K Plumbing. White fur-
ther testified, without contradiction, that this crew con-
sisted of Guillaume Weaver;2' Dean Hollowood, who ap-
parently had previously worked for Respondent on the
marine base but who was not so employed as of July 9;
and two individuals who had previously not been em-
ployed by Respondent at the marine base. No offers to
return were ever tendered to Carl Coates, Joyce Coates,
Scott Coates, Beargeon, or Tomlinson.
While Waldo Slusher did testify on Respondent's
behalf, he confined his testimony to the deposit of money
on July 3; to stating that on July 3 he informed Carl
Coates of pending layoffs; and to simply denying that his
crews' layoff resulted from complaints about bad checks
or from their work stoppage on July 7 and 8. Slusher did
not testify as to any economic rationale for Respondent's
actions, and Respondent offered no other evidence (testi-
mony or documentation) suggesting an economic reason
for its conduct herein. Nevertheless, there does exist
record evidence suggesting an economic necessity or
motivation for the events herein. Thus, in addition to
Rickie White's candid statement that other contractors
would take advantage of work slowdowns caused by
strikes by cutting back on their work crews, Carl Coates
testified that Slusher would offer the following explana-
tion regarding the necessity for layoffs: "Of course the
main explanation that I had for quite some time was the
fact that they were not getting paid by the contractors
that we were doing work for." Likewise, White testified
that he was present at a meeting between Slusher and
representatives of A & K Plumbing at which Slusher ac-
cused said individuals of not paying Respondent for
work done. Finally, White stated that he heard "numer-
ous times" in May and June from Slusher and Respond-
ent's attorney that Respondent was not receiving suffi-
cient funds with which to meet its payroll obligations.
"' There is no evidence ill the record concerning the circumstanccs sur-
roundilg Weaver's return to ork. In alny event, hi, is nol alleged ill the
complaint as const ilulinlg all ulawsll discharge. and I shall make no find-
itigs as to him
CAL-WALTS. INC.
Slusher never testified regarding the aforementioned
statements attributed to him.
B. Analysis
1. The discharge of employees Joyce Coates, Scott
Coates, Zimmerman, Beargeon, and Tomlinson
The General Counsel alleges in his complaint that Re-
spondent terminated employees Joyce Coates, Scott
Coates, Gilbert Zimmerman, Rodney Beargeon, and
David Tomlinson in violation of Section 8(a)(1) of the
Act because they engaged in protected concerted activi-
ties-namely, protesting "bad" payroll checks and engag-
ing in a concerted work stoppage. More specifically,
counsel for the General Counsel argues that Respondent
decided upon a reduction in force because the affected
employees complained about bad checks, and ultimately
terminated the entire crew because of the aforemen-
tioned work stoppage on July 7 and 8. Respondent has
offered no rationale for its conduct herein-either at the
hearing or in a post-hearing brief.
In analyzing Respondent's July 3 decision to reduce its
work force at the United States Marine Corps Base in
Twentynine Palms, California, 2 and, of course, the ulti-
mate layoff of the affected employees, it is initially neces-
sary to determine whether the employee complaints
about their "bouncing" June payroll checks constituted
protected and concerted activities. As to the former,
there can be no doubt that there is no more vital term
and condition of employment than one's wages, and em-
ployee complaints in this regard clearly constitute pro-
tected activity. Air Surrey Corporation, 229 NLRB 1064
(1977). As to whether the employee complaints were
concerted, Board decisions on this issue normally con-
cern conduct of two types-those involving truly con-
certed activities wherein two or more employees share a
common concern and act together to obtain a desired
result (Ford Motor Company, 251 NLRB 413 (1980); Lei-
sure Lodge Nursing Home, 250 NLRB 912 (1980); Woman
Care Inc., 246 NLRB 753 (1979)), and those cases in
which employees act alone, but such is deemed to be
"concerted in nature" as the act relates to a matter of
common employee concern (Diagnostic Center Hospital
Corp. of Texas, 228 NLRB 1215 (1977); Alleluia Cushion
Co.. Inc., 221 NLRB 999 (1975)). Herein, the facts fall
somewhere between these parameters, and the result
must be identical. Thus, while employees Scott Coates,
Joyce Coates, Zimmerman, and Tomlinson apparently in-
dividually complained about bad checks both to Carl
Coates and to Waldo Slusher, the matter clearly was of
common concern to the employees. Moreover, the com-
plaints were seemingly the same, and, I believe that,
when Carl Coates presented the employee complaints to
Slusher, it was so presented as a common, group com-
plaint. Finally, in a case which concerned individual in-
quiries to the bank regarding the sufficiency of an em-
'" A finding as to the legality of Respondent's decision to lay off em-
ployees on July 3 is critical herein inasmuch as said decision was reached
prior to Slusher's decision to shut the jobh completely on July 8. Further.
as all employees were laid off at the same time. the validity of the layoff,
of Scott Coates, Joyce Coates. Tomlinson. and Beargeon would not he
open to challenge if he original decision was deemed lawful.
ployer's funds to cover its payroll, Board stated that "an
individual's actions may be concerted in nature if they
relate to conditions of employment that are matters of
mutual concern to all the affected employees" and that,
in such circumstances. an employee does not "actually"
have to act in concert with others. Air Surrey Corpora-
tion. supra. Accordingly, I conclude that the employee
complaints herein constituted protected concerted activi-
ty.
The next issue is, of course, whether Respondent's
layoff decision was motivated or influenced by its em-
ployees' protected concerted activities. 2 If so, then
Slusher's decision to reduce Respondent's work force at
the marine base was violative of Section 8(a)(1) of the
Act. The Youngstown Osteopathic Hospital Association, 224
NLRB 574, 575 (1976). In cases such as herein, where
motivation is a determining factor, the Board requires
"that the General Counsel make a prima facie showing
sufficient to support the inference that protected activity
was a 'motivating factor.' [Then], the burden will shift to
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct." Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980). 24 Close scrutiny of the record,
including the uncontroverted testimony of the General
Counsel's witnesses, establishes that Slusher made his
July 3 decision to reduce Respondent's work force by
laying off employees Scott Coates, Joyce Coates, Tom-
linson, and Beargeon with knowledge of the employees'
protected concerted activities25 at a time when enough
work was available on, at least, the barracks buildings
job for a full complement of workers, and at a time
when Santa Fe was remitting weekly payments to Re-
spondent sufficient to cover all expenses, including
wages. Further, when they were "officially" laid off the
following week, Slusher informed the employees that the
job would only be shut down for 2 or 3 weeks and was
2 Motivation is of critical importance herein In a recent decision. Bay
State Gas Company, 255 NLRB 708 (1981), the Board reversed the Ad-
ministrative Law Judge's finding that an individual was terminated be-
cause he engaged in protected concerted activities, finding instead that
"the General Counsel has not established that [the discharge] . was
influenced . . .by his [protected concerted activities." (Emphasis sup-
plied.) Later in the decision. the Board discussed the importance of
motive
Motivation is an issue which the Board faces in numerous cases on
a daily basis. Frequently. it is not easy to ascertain whether the cited
reason for the discharge is the actual reason. However. that fact does
not justify a holding by the Board that it will not consider a lawful
reason put forth by an employer for a discharge merely because it
might he used to cover up an unlawful reason. Rather. we must de-
termine in each case . . whether the discharge was for [engaging in
the protected concerted activity or for lawful reasons]"
'4 In concluding that a primno facie violation of the Act has been estah-
lished, the Board will not "quantitatively analyze" the effect of the un-
lawful motive. The existence of such is sufficient to make a discharge a
violation of the Act. Wright Line. supra at 1089. fn. 14.
' It is of no moment that Rodney Beargeon had received no had pay-
roll checks in June and, hus, did not complain as did the others. Thus.
he was closely identified with the Coates family inasmuch as he shared a
residence with them. Moreover, as I believe the paycheck complainlts
were presented as a group complaint to Slusher. the inference is warranl-
ed that the Slusher perceicd Beargeonl It he part of or at least upport-
ise of that group. Finally, as with the other,. Beargeon was not recalled
to work on July 14 when a crew, composed almost eiirels of new em-
ployee,. began vworking at he jobhite fir Respondent
979
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
noncommittal-but not negative-regarding their
chances of recall. Finally, and of critical significance to
the question of motivation, on July 14 Respondent em-
ployed a largely new crew at the marine base-without
affording Scott Coates, Joyce Coates, Tomlinson, or
Beargeon the opportunity of recall. Therefore, based on
the aforementioned uncontroverted evidence, I find that
counsel for the General Counsel has made a prima facie
showing that Respondent's decision to lay off these indi-
viduals, and its ultimate accomplishment of that aim on
July 9, were motivated by the employees' paycheck
complaints.
The burden of proof thus shifted to Respondent to
demonstrate that it would have reached the same deci-
sion and taken the same actions notwithstanding the em-
ployees' protected concerted activities. There can be no
doubt that Respondent has not met its burden of proof in
this regard. While Carl Coates did state that, when he
was informed by Slusher on July 9 that a decision had
been reached to reduce the size of the crew, the latter
stated as reasons that he was not being paid and money
was short, and while the record discloses similar state-
ments by Slusher to others, Respondent offered not a
scintilla of evidence that, in fact, economic circumstances
were the rationale for the layoff decision-this is so de-
spite the fact that Slusher did testify at the hearing. In
these circumstances, Slusher's economic plight comments
to others are, on their face, nothing more than self-serv-
ing statements with no substantiation. Moreover, in view
of the hiring of a new crew for work at the marine base
commencing July 14, very little, if any, credence should
be given to Slusher's protestations. '2 Accordingly, based
on the record as a whole, I find that the July 9 layoffs,
which in light of subsequent events were quite clearly
outright and blatant discharges of Scott Coates, Joyce
Coates, Tomlinson, and Beargeon, 27 were motivated by
said employees' protected concerted activities (com-
plaints regarding their paychecks) and that, therefore,
said discharges were violative of Section 8(a)(1) of the
Act. Timet. A Division of Titanium Metals Corporation of
America, 251 NLRB 1180 (1980); Woman Care Inc..
supra; Air Surrey Corporation, supra.
As to employee Gilbert Zimmerman, who was dis-
charged when Respondent terminated the entire crew at
the marine base on July 9, notwithstanding the former's
own complaints about his bad June paychecks, the
record discloses that both in his conversation with Carl
Coates on July 3 and in his resultant confirming letter to
Coates, Slusher clearly disclosed his intention to contin-
ue to employ Zimmerman at the project. Inasmuch as
there is no record evidence of any intervening change in
circumstances-except for the concerted work stoppage
., In this regard. it is unconitroverted that immdia;lely after terminal-
mg his crew al the marine base. ostensibly due to ; Ia ck of funds. Slusher
told Rickic White that he was "working on" having ;i crew at the jobsite
He obhviously meant a different. more compliant crew.
:? The facd that Respondent nltified Carl Coates that he layoffs of
these individuals should he effectise on July 7 is nlot dispositive of heir
discharge date. Thus, Coates testified that Respondent's past praclice is
that a person cannot be laid off until given ;, fill check and ( i layoff
notice, neither of which were given to either Scott Coaltes. Jo)ce Coaes.
Tomlinson. or Beargcon until at least July 9. Accordingly. I find that
each w as discharged on July 9. retainling employee sl;ltls Ilntil hal dale
on July 7 and 8 during which Respondent's employees,
including Zimmerman, protested their apparently bad
July 3 paychecks-counsel for the General Counsel con-
tends that the termination of Zimmerman by Respondent
was motivated by his participation in the work stoppage
and was therefore violative of Section 8(a)(1) of the Act.
The record further discloses that Slusher was well aware
of the work stoppage and its intended result, that Slusher
offered no work-related rationale to the employees upon
announcing his decision to terminate Zimmerman and
the other remaining employees, and that Respondent pre-
sented no evidence at the hearing that the said termina-
tions would have occurred notwithstanding the work
stoppage. That any such evidence may have, in any
event, been specious is clear from Slusher's admissions to
White that very week that he was having "problems"
and was "working on" having a crew on the jobsite.
There can be no clearer form of protected concerted ac-
tivity than a work stoppage protesting some term or con-
dition of employment-as herein involved. Go-Lightly
Footwear. Inc., 251 NLRB 428 (1980). Herein, taking into
account the work stoppage, Respondent's knowledge
thereof, the timing of the layoff of the remainder of the
work force, including Zimmerman, the lack of any valid
rationale for doing so by Respondent, and the record as
a whole, in agreement with the General Counsel, I find
that Respondent also violated Section 8(a)(1) of the Act
by laying off employee Zimmerman on July 9.28 Go-
Lightly Footwear, supra.
2. The discharge of Carl Coates
At the hearing, Respondent stipulated that Project
Manager Carl Coates was a supervisor within the mean-
ing of Section 2(11) of the Act. Nevertheless, the com-
plaint herein alleges that Respondent violated Section
8(a)(1) of the Act by discharging Coates, along with the
remainder of the crew at the marine base, on July 9.
Counsel for the General Counsel offers two supporting
theories. First, he argues that Respondent discharged
Coates because the latter "refused to enforce Respond-
ent's unlawful decision to commit the unfair labor prac-
tice of laying off [Joyce Coates, Scott Coates, Tomlin-
son, and Beargeon]." Next, citing DRW Corporation
d/b/a Brothers Three Cabinet, 248 NLRB 828 (1980),
counsel for the General Counsel argues that Respond-
ent's conduct, as a whole, including the discharge of
Carl Coates, was motivated by a desire to retaliate
against its employees' protected concerted activities, and
that such coerced Respondent's employees in the exer-
cise of their Section 7 rights.
At the outset, the 1947 amendments to the Act more
narrowly defined the term "employee" by specifically
excluding "any individual employed as a supervisor."
Further, the Supreme Court interpreted this language as
freeing "employers to discharge supervisors without vio-
lating the Act's restraints against discharges on account
of union membership." Beasley v. Food Fair of Niorth
Carolina, 416 U.S. 653, 654-655 (1974). Nevertheless, the
' The offer (of reinitt enrlent to Z imrrnlanll h Respondelllt'% aornle
does not hear upon the finding of ian unfair labor practice hut ralher pon
the manlllcr of i renleds hereci.
980
CAL-AWALTS. INC
Board has, in certain limited circumstances, found that
the discharge of a supervisor is violative of Section
8(a)(1) of the Act-theorizing that such may coerce and
restrain employees in the exercise of their Section 7
rights. In Nevis Industries. Inc., d/b/a Fresno Townehouse,
246 NLRB 1053 (1979), the Board stated that it will find
discharges of supervisors to be unlawful when designed
to indirectly interfere with employee access to the
Board's processes, to punish supervisors for refusing to
violate the Act or to participate in an unlawful antiunion
campaign, to mask or otherwise facilitate unlawful em-
ployee discrimination, or to cause employees reasonably
to fear like retaliation against themselves for engaging in
protected concerted activities. In addition, according to
the Board, supervisors are protected against retaliation
for having attended or testified in favor of employees at
arbitration hearings, against retaliation for having en-
gaged in protected activities while employees, and
against retaliation for the protected acts of close rela-
tives. Finally, a supervisor's discharge will be found un-
lawful if such is an "integral part" of an employer's "pat-
tern of conduct" aimed at penalizing employees for en-
gaging in protected activities. Herein, Slusher did not
give Coates a reason for his layoff, nor did he testify at
the hearing regarding the circumstances or rationale for
Coates' layoff.
Counsel for the General Counsel argues that Coates
was terminated because he refused to implement
Slusher's unlawful directive to lay off most of the marine
base crew. I find no merit to this argument inasmuch as
there is no record evidence that Coates "refused" to do
anything or that Slusher fired him for refusing to do any-
thing. While it is true that Coates delayed in carrying
out Slusher's July 3 (received July 7) layoff instructions
for 2 days because Respondent had not yet transmitted
to him the affected employees' final checks or layoff no-
tices, such is not enough to establish that Coates refused
to follow instructions. Rather, as Coates himself testified,
he could not implement Slusher's instructions because
the affected employees "still weren't officially laid off.
I didn't have their checks on the termination slips or
anything." Further, there is no suggestion in the record
that Slusher believed that Coates was not following his
orders or that he fired Coates for that reason. In fact,
Slusher's conduct seems to corroborate Coates' interpre-
tation of Respondent's layoff practices inasmuch as
Slusher met with the marine base crewmembers at Re-
spondent's bank on July 9., distributed their final checks
while promising to give each employee a termination slip
at a later time, and then announced the termination of
work with no indication that the layoffs should have
been implemented earlier on that Coates was being ter-
minated for such a reason.
Besides lacking a factual basis, counsel for the General
Counsel's argument has no legal merit. Careful scrutiny
of the Board decisions in this area discloses that elements
essential for concluding that a supervisor was terminated
for refusing to commit unfair labor practices are not
present herein. Thus, analysis of Talladega Cotton Fac-
tory, Inc., 106 NLRB 295 (1953), enfd. 216 F.2d 209 (5th
Cir. 1954); Miami Coca Cola Bottling Compnanv doing
business as Key West Coca Cola Bottling Company, 140
NLRB 1359 (1963): Daniel Construction Companv. a Divi-
sion of Daniel International Corporation. 241 NLRB 336
(1979): and other cases suggests that of paramount sig-
nificance is the discharged supervisor's awareness that he
has been instructed to carry out unlawful acts and his
conscious refusal to do so based on said awareness. Thus,
in Talladega Cotton two supervisors were pressured into
engaging in blatantly unlawful conduct but, aware of the
nature of their acts, did so in a "halfhearted" and per-
functory manner. Likewise, in Daniel Construction a su-
pervisor was ordered to discharge employees for clearly
unlawful reasons. The supervisor deliberately refused and
was terminated. Herein, notwithstanding a finding by me
that Slusher was motivated by the employees' protected
concerted activities when he instructed Coates on July 3
to effectuate a layoff, there is no evidence that Coates
perceived that he was being ordered to commit an un-
lawful act. In fact, there is no basis for not concluding
that Coates believed Slusher when the latter asserted that
the layoffs were economically mandated. Accordingly. it
cannot be established that Coates understood he was to
commit an unlawful act or that, even if he did refuse to
do so, such was consciously based on the unlawful char-
acter of his instructions. Based on the foregoing, I do not
believe that the initial theory advanced by counsel for
the General Counsel is meritorious.
The second theory of the instant complaint rests upon
the fact that Project Manager Coates was laid off, along
with the remainder of the marine base crew, on July 9,
upon a finding by me that Respondent's entire course of
conduct herein was violative of Section 8(a)(1) of the
Act, and upon the language of the Board in Brothers
Three Cabinets. Therein, while recognizing that the inci-
dental effect of a supervisor's discharge may be to cause
employees to believe the same fate will befall them if
they engage in protected concerted activities and that
such would not be enough to establish a violation of Sec-
tion 8(a)(1) of the Act, the Board stated that where an
employer engages in a widespread pattern of misconduct
against employees and supervisors alike:
[T]he evidence may be sufficient to warrant a find-
ing that the employer's conduct, as a whole . . .
was motivated by a desire to discourage [concerted]
activities among its employees in general and thus
constitutes . . . a pattern of conduct aimed at co-
ercing employees in the exercise of their Section 7
rights. By such acts the employer has exceeded the
bounds of legitimate conduct intended to discourage
[concerted] activity among its supervisors. And . . .
it has intentionally created an atmosphere of coer-
cion in which employees cannot be expected to per-
ceive the distinction between the employer's right
to prohibit [such] activity among supervisors and
their right to engage freely in such activity them-
selves. In this context, the coercive effect upon em-
ployees [from the supervisor's discharge] . . .
cannot be viewed as . . . "incidental" to the dis-
charge of an unprotected individual. [Id. at 878-
879.]
DECISIONS OF NATIONAL LAIBOR RELATIONS BO()ARD
Without questioning the validity of this principle. I do
not believe that the discharge of Carl Coates falls within
its precepts or those of like-decided cases.
Initially, the facts herein are readily distinguishable
from Brothers Three Cabinets and are more closely akin
to the circumstances in such related Board decisions as
Nevis Industries, Inc.. supra; Downslope Industries, Inc.
and Greenbriar Industries, Inc., 246 NLRB 948 (1979);
Southern Plasma Corporation, 242 NLRB 1223 (1979);
and Fairview Nursing Home, 202 NLRB 319 (1973). In
Brothers Three Cabinets, the employer terminated a su-pervisor and an employee, both of whom had been the
main union organizers in a plant, and utilized the dis-
charges to coerce and restrain the plant employees from
supporting the union. Apparently, the essence of the vio-
lation was the use of the supervisor's discharge by the
employer to cause the plant employees to reasonably fear
like retaliation if they supported the union. Nevis Indus-
tries, Inc., supra. Herein, rather than using the layoff of
Coates as an "example" for its employees at the marine
base, Respondent, without explanation, laid off Coates
along with the remainder of its crew at that location on
July 9. In this respect, the factual situation is close tothat of Nevis Industries, Inc., in which the supervisor and
his crew were terminated by an employer that was at-tempting to rid itself of a union; Downslope Industries,
Inc., in which a supervisor and employees were terminat-
ed for protesting the conduct of a company official;
Southern Plasma, in which all union adherents, including
two supervisors, were fired; and Fairview Nursing Home,
in which all union authorization card signers, including
two supervisors, were terminated. In each of these deci-
sions, the Board found the existence of a "pattern of con-
duct" aimed at coercing employees in the exercise of
their Section 7 rights. 29
While similar in factual context, the cited cases, andothers, are distinguishable from the instant matter in, I
believe, one critical aspect-sufficient to render the
Brothers Three Cabinets rationale inapplicable. Therein,
the Board based its reasoning on the supposition that,
where a pattern of unlawful conduct affecting supervi-
sors and nonsupervisors alike existed, "the distinction be-
tween the employer's right to prohibit [concerted] activi-
ty among supervisors and [the employees'] right toengage freely in such activity" cannot be perceived by
the employees; accordingly, a coercive effect upon their
Section 7 rights would result. Clearly, in order for such
a circumstance to occur, supervisors and employees
would have to be engaging in the same protected con-
certed activity, and, if discharged or otherwise disci-
plined, said employees would have to perceive that su-
' Factually. the cited cases are indistinguishable from the Board's deci-sions in Long Beach Youth Center. Inc. a/k/a Lung Beach Yout h Ilu-mefornmer, y Trailback, Inc.). 230 NLRB 648 (1977), and Sibilio, GoldenGrill. Incr.. 227 NLRB 1688 (1977), in both of which supervisrs whowere terminated along with unlawfully terminated employees were foundto have been lawfully terminated. In so concluding, the Board, in bothcases, stated that the discharges of the supervisors were not an integralpart of a scheme by which the employers sought to strike, through them,at employees. This anguage has been used by the B oard to distinguishLong Beach and Sibilio' from subsequent cases. Nowhere. however. hasthe Board overruled these decisions or factually distinguished them. he
question remains as to their continued alidity.
pervisors who are similarly treated received discipline
for engaging in the protected conduct. Such is the pat-
tern in each of the aforementioned cases. Thus, in Nevis
Industries, Inc., Downslope Industries. Inc., Southern
Plasma, and Fairview Nursing Home, supervisors either
aided or were directly involved in the employees' union
or other protected concerted activities and were disci-
plined, along with the employees, for their efforts.
Herein, in direct contrast, while Carl Coates was laid off
along with Zimmerman and Weaver on July 9. there is
no credible record evidence that Carl Coates either par-
ticipated in the July 7 and 8 work stoppage or actively
supported it.3 Indeed, the record establishes that Coates
neither encouraged nor was involved in the employees'
decision to engage in a work stoppage, that he adopted
the approach of neither approving or disapproving of the
employee protest, and that not only did he not partici-
pate but he actually did engage in work during those 2
days. Accordingly, inasmuch as Coates was not a partici-
pant in, and offered no actual encouragement for, the
work stoppage, even if Respondent believed such to be
the case, the critical nexus between his layoff and the
discharges of Zimmerman and Weaver does not exist;
employees could not perceive that Coates' discharge and
that of the remaining marine base employees were for
the same reason. While Coates' layoff occurred in the
same time period as the other terminations, I conclude
that his layoff had only an "incidental" effect upon the
employees and that such "is insufficient to transform oth-
erwise lawful conduct into a violation of Section 8(a)(l)
of the Act." Stop and Go Foods, Inc., 246 NLRB 1076
(1979)." ' 1 shall therefore recommend that the complaint
be dismissed insofar as it alleges that the discharge of
Carl Coates was violative of Section 8(a)() of the Act,
CONCI.USIONS o LAW
1. The Respondent, Cal-Waits, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
"' I do not believe that Respondent engaged in a pattern of conductwhich encompasses all the discharges herein Rather. I believe-and therecord mandates-tha a clear distinclion must be made h eween he dis-charges of employees Joyce Coates. Scott Coates. Tomlinson. and ear-geon n the one hand and that of ilbert Zimmerman on the otherWhile both instances were based on the employees' protected concertedactivities, the initial layoffs were clearlN influenced by the affected em-ployees' paycheck complaints whereas the layoff of Zimmerman was inresponse to the July 7 and work stoppage. Such nust be the case inas-much as Zimmerman was exempted from layoff on July 9 despite hisown vehemenl had check complaints. Further. there is no indication thatthe remaining crewmembers would have been laid off on July 9 absentthe work stoppage. The foregoing is significant herein because Coates,who likewise complained about his own paycheck cashing difficultiesprior to July 3. was also retained. Accordingly, the record will not sup-port the inference that Carl Coates' layoff was a component part of anysort of general pattern of terminations because of employees' protectedactivities. Clearly, if any sort of argument regarding the unlawful charac-ter of Coates' layoff is to be made, it must be based on what occurred on
July 7 and 8.
:" This result would be the same if Respondent did, indeed. terminateCarl Coates because it perceived that he either encouraged or engaged inIhe employees' protected concerted activities. Beau/l:v. supra: Patterson
Meadeni Corporatiro. d//a Gallant aMun, and Ftrch r Mil/r., .-le. i'
at. 154 NI.RH 1795. 1796 1965)
982
CAL-WALTS, INC.
2. By terminating employees Joyce Coates, Scott
Coates, David Tomlinson, Rodney Beargeon, and Gil-
bert Zimmerman on or about July 9, 1980, because they
engaged in protected concerted activities, Respondent in-
terfered with, restrained, and coerced employees in the
exercise of their rights guaranteed by Section 7 of the
Act, and thereby committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Unless specifically found herein, Respondent com-
mitted no other unfair labor practices.
THIE RsMrDoY
Having found that Respondent has 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 policies of
the Act. As I have found that the discharges of employ-
ees Joyce Coates, Scott Coates, David Tomlinson, and
Rodney Beargeon on July 9, 1980, were violative of Sec-
tion 8(a)(1) of the Act,3 2 I shall recommend that Re-
spondent be ordered to offer to each said employee im-
mediate and full reinstatement to his or her former posi-
tion or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his or her se-
niority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make each em-
ployee whole for any loss of earnings he or she may
have suffered as a result of the discrimination against him
or her by payment to him or her of the amount he or she
normally would have earned from the date of his or her
termination, July 9, 1980, with backpay to be computed
in the manner prescribed in F W Woolworth Company,
90 NLRB 289 (1950), with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). Finally,
Respondent shall be ordered to post a notice to employ-
ees, setting forth the aforementioned remedies.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 33
The Respondent, Cal-Walts, Inc., Los Alamitos, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Terminating employees because they engaged in
protected concerted activities.
*2 Inasmuch as counsel for the General Counsel seeks no remedy for
the unlawful termination of Gilbert Zimmerman. and based on the record
as a whole. I shall not recommend that Respondent offer him reinstate-
ment or make him whole.
:1 In the event no exceptions are filed as provided by Sec 102 4h of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as prosided
in Sec. 102.48 of the Rules and Regulations, be adopted hb the Board and
become its findings, conclusions, and Order. and all objections hereto
shall he deemed waived for all purposes
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Joyce Coates, Scott Coates, David Tom-
linson, and Rodney Beargeon, respectively, immediate
and full reinstatement to their former jobs or, if those
jobs no longer exists, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered as a result of its actions
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Post at its Los Alamitos, California, office and at
all of its current southern California jobsites copies of the
attached notice marked "Appendix."3 4 Copies of said
notice, on forms provided by the Regional Director for
Region , after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material. Also, copies
of said notice should be mailed to the last known ad-
dresses of employees Joyce Coates, Scott Coates, David
Tomlinson, Rodney Beargeon, and Gilbert Zimmerman.
(c) Notify the Regional Director for Region , in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint should be
dismissed insofar as it alleges that Respondent violated
Section 8(a)(1) of the Act by terminating Carl Coates.
:~ In the esent that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment (of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYFES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides were given a full op-
portunity to introduce evidence and examine and cross-
examine witnesses, we were found to have committed
certain unfair labor practices. In order to remedy said
unfair labor practices, we promise the following:
WE WIll.. NOT terminate our employees because
they engage in protected concerted activities.
WE wit l. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the National Labor Relations Act, as amended.
WI: wil I. offer to reinstate Joyce Coates. Scott
Coates, David Tomilson, and Rodney Beargeon, re-
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spectively, to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and wF Wl. make them whole for
any wages they may have lost as a result of our
lawful discharge of them, with interest.
CAI.-WAI.TS, INC.
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