Daniel Construction Co.

National Labor Relations Board - Board Decisions

Aug 29, 1979

244 N.L.R.B. 704 (N.L.R.B. 1979)

I)I('ISIONS O() NA IONAI. L.ABOR RELATIONS BOARD
Daniel Construction 'ompany a Division of Daniel
International Corporation and International Associ-
ation of Bridge, Structural, and Ornamental Iron-
workers, Local Union 413, AFL-CIO. Case II
CA-6682
August 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MF:MBIRS PNI.I.O
AND TRULISI)AI
On November 23, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent, the Charging
Party, and the General Counsel filed exceptions and
supporting briefs. Respondent filed a brief in answer
to the exceptions of the General Counsel and the
Charging Party.'
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 briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt this recommended Order.'
I The General Counsel filed a motion to strike the portion of Respondent's
briefin answer to exceptions of the General Counsel and the Charging Part)
to the Administrative Law Judge's Decision. The General Counsel claims
that Respondent misrepresented the date on which employee Daniel Haga
was reemployed by Respondent and that such date is important for the
purpose of determining when Haga became a foreman. Respondent filed an
opposition to the General Counsel's motion claiming, inter alia that it had
merely restated Haga's testimony. We find no merit in the General Counsel's
motion, as there has been no misrepresentation by Respondent and, in any
event, the Administrative Law Judge correctly evaluated all the testimony in
reaching his conclusions concerning Haga's discharge Accordingly. we
hereby deny the General ('ounsel's motion to strike.
2 Respondent. the Charging Party, and the General Counsel have excepted
to certain credibility findings made by the Administrative Law Judge. It is
the Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect. Stan-
dard Do Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
We agree that John Jaynes was constructively discharged. We reach that
conclusion based on the specific threat made directly to Jaynes by Respon-
dent that a pretext would be found to camouflage his discriminatory dis-
charge: the backdrop of Respondent's massive and pervasive unfair labor
practices; and Jayne's testimony that he was particularly concerned over a
threatened blemish to an untarnished work record stretching back to 1947.
3The Administrative Law Judge found that the instant case was inappro-
priate for the issuance of a bargaining order in the absence of a showing of
majority status. In United Dairy Farmers Crperaive Assoiation. 242 NLRB
1026 (1979). we considered the issue of whether a bargaining order remedy is
appropriate in situations where a union has never obtained majority support
from unit employees. For the reasons set forth in their respective opinions in
United Daity, Members Penello and Truesdale deny the General Counsel's
and the Charging Party's requests fr a bargaining order
Chairman Fanning finds that Respondent's flagrant and pervasive viola-
tions of the Act warrant requiring it to bargain with the Union. See his and
Member Jenkin's dissent in United Daio', supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National l.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Daniel Construction
Company, a Division of Daniel International Corpo-
ration. Jenkinsville. South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
The Administrative Law Judge provided in his recommended Order that
Respondent be required to cease and desist from "in any other manner"
interfering with, restraining. or coercing its employees in the exercise ol their
Sec. 7 rights. We recently stated in Hickmort Fods, Inc. 242 NLRB 1357
(1979). that we would impose such a broad order where a respondent "has
engaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights." Consid'
ering all the circumstances herein, we are of the opinion that the unlawful
conduct engaged in by Respondent warrants the imposition of a broad order.
DECISION
STAIEMENI OF iHI! CASF
Ml(cAEI. O. MILLER, Administrative Law Judge: This
case was heard in Rock Hill and Columbia. South Carolina,
on 10 days between May 10 and June 2, 1977. The original
unfair labor practice charge was filed by the International
Association of Bridge. Structural and Ornamental Iron-
workers, Local 413, AFL-CIO, hereinafter referred to as
the Union or Local 413. against Daniel Construction Com-
pany, a Division of Daniel International Corporation. here-
inafter referred to as Daniel or Respondent, on August 12,
1976. The charge was thereafter amended on five occasions
between September 13 and March 8. 1977. On November
18. 1976. the Regional Director for Region II of the Na-
tional Labor Relations Board, hereinafter referred to as the
Board, issued the complaint herein. That complaint was
amended on March 25, 1977, and at hearing. As amended it
alleged that Respondent, in an effort to thwart Local 413's
organizational campaign, discriminatorily discharged and/
or refused to hire certain ironworker employees and super-
visors, and otherwise interfered with the organizational ac-
tivities, in violation of Section 8(a)(3) and (I1) of the Act.
The General Counsel sought, by way of remedy requiring
Respondent to bargain with the Union. The Union joined
the General Counsel's request for extraordinary remedies
and additionally sought organizational and litigation ex-
penses. Respondent's timely filed answer, and its brief: de-
nied the substantive allegations of the complaint and op-
posed the imposition of any extraordinary remedies.
All parties were given full opportunity to participate, in-
troduce relevant evidence, and examine and cross-examine
witnesses. Helpful, comprehensive briefs were filed and
have been carefully considered. During the course of the
lengthy hearing, I carefully observed the witnesses and their
demeanor. Upon the entire record, including my observa-
tion of the witnesses, inferences properly drawn from the
failure of a party to produce relevant evidence within its
244 NLRB No. 106
704
DANIEL CONSTRUCTION COMPANY
control,' and consideration of the briefs, I make the follow-
ing:
FINDIN(;S O1 FA(CT
I. IHE RESPONDENT'S BUSINESS AND HE UNION'S I.ABOR
ORGANIZATION STATUS
Respondent is a corporation licensed to do business in
the State of South Carolina, where it is engaged as a general
contractor in the construction of nuclear power plant and a
hydro-electric power plant at Jenkinsville. Jurisdiction is
not in issue. Based on the admitted allegations of the com-
plaint, I find and conclude that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I find and conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. Ti 10(b) I)DEFENSE
In its answer to the amended complaint, and on brief,
Respondent contended that certain allegations of conduct
violative of Section 8(a)(1) and (3) were time-barred pursu-
ant to Section 10(b) of the Act.'
The original charge, filed on August 12, alleged that Re-
spondent violated Section 8(a)(1) and (3) of the Act by dis-
charging certain named employees "on May 25, 1976, and
continuing to date" in order to discourage union activity. It
also contained the usual printed "catchball" language,
Subsequent amendments to the charges, on September 13,
1976 and January 13, February 9. February 18, and March
8, 1977 retained identical language and added (or deleted)
names on the list of discharged employees and supervisors.
Respondent correctly identified those individuals whose
names did not appear on a charge until more than 6 months
after their terminations.
The law is clear that "an amended charge, although filed
more than 6 months after the occurrence of the unfair labor
practice, will be timely if it relates to the unfair labor prac-
tice inherent in or connected with the original charge." Eu-
gene and Veroncia McManns, co-partners, d/l/a Sunrise
Manor Nursing Home, 199 NLRB 1120, 1121 (1972). The
amendments name the employees discharged in the course
of a single organizational campaign. As such, it is clear that
they relate to the "unfair labor practice inherent in or con-
nected with the original charge." The same is true for the
i Martin Luther King, Sr., Nursing Center, 231 NLRB 15 (1977).
Sec. 10(b) provides, inter alia.
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the
Board.
Specifically, Respondent contended that the allegations of paragraphs 8 and
9 of the amended complaint relating to the discharges of Hugh McCutcheon,
Michael Grant, Allan Haga, Daniel Haga, James Walker. Derrell Rice, Roy
Collins, Gerald Kerr, Paul Vincent, John Jaynes, Richard Dickey, Kermit
Roy, Starks Porter, and Wilber Queen, and certain allegations of interfer-
ence, restraint and coercion contained in paragraphs 8(d). (c), (f), (i), (k). (1),
(m), and (n) were time-barred.
3 "By these and other acts, the above-named employer has interfered with,
restrained, and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act."
'The names of Hugh McCutcheon and Michael Grant appeared on the
original charge, were absent from the first amended charge, and reappeared
on the second amended charge, dated January 13, 1977.
allegations of various 8(a I) violations occurring in the
course of the same campaign. See Gu Slttres Manultciturev.
inc., 230 NLRB 558 (1977). The charges. I find. were timely
filed.
II. BA(K(ROt'NDl)- il L' ION'S ( AMP'AIN
Respondent is the general contractor for the construction
of the V. C. Sumner Nuclear Station and the Fairfield
Pump Storage facility, in Jenkinsville. South Carolina.s Re-
spondent deems itself an "open shop" contractor and had
neither contracted with nor recognized any unions as repre-
senting its employees on these projects. Included among its
employees were as many as 500 ironworkers of whom ap-
proximately 300 were working on the Sumner project in
spring and early summer, 1976.1
In January and February, representatives and members
of Local 413 considered launching an organizational drive
among Daniel's ironworkers. At the suggestion of Bobby
Fowler, the Union's business agent. Thomas Steen hired on
as a rigger in mid-January. Steen was promoted to the posi-
tion of miscellaneous ironworker foreman after about 2
weeks. Following Steen's reports to the Union's executive
board, a decision was made to attempt to "load up" the job
with union members and get a representation election. On
May 3, Ralph Tucker, Local 413's president. was hired as a
reinforcement (rebar) steel foreman. He reported to Bill
Long, rebar superintendent, who was also a union member.
Tucker became the head of the Union's organizing commit-
tee at the jobsite. The committee was made up of 18 or 20
individuals, some of whom, like Steen, were foremen. It was
stipulated that those occupying the positions of foremen
and above were statutory supervisors. Beginning in early
May, the organizing committee began to distribute authori-
zation cards and solicit signatures thereon. Many of the
cards were solicited directly or indirectly by Tucker, Steen
and several other supervisors. The cards were returned to
the Union, generally through Tucker.
On June 2. the Union filed a representation petition, Case
1I -RC-4205, seeking an election at Sumner in a unit con-
sisting of:
All journeymen and apprentice ironworkers, includ-
ing rodmen, finishers, ggers, machinery movers, erec-
tors, sheeters and welders, but excluding all other em-
ployees, guards, watchmen and supervisors as defined
in the Act.
On the same date. the Union mailed a demand for recogni-
tion to Daniel at its Greenville, South Carolina, headquar-
ters. On June 7. Respondent's attorneys rejected the de-
mand.
A hearing on the Union's petition was held on June 18.
In the latter part of June, the Union was advised that it was
12 authorization cards short of satisfying the Board's 30
percent showing of interest requirement, necessary for an
election.' Although it made efforts to do so, the Union was
With one exception, all of the unlawful conduct ox-curred at the V C
Sumner site, herein referred to as Sumner.
6 All dates hereinafter are 1976 unless otherwise specified.
NLRB, Statements of Procedure, Sec. 101.18(a). It is not clear from the
record whether this computation of interest showing had excluded those
cards of, or solicited by, persons now admitted to be supervisors
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to come up with the additional valid authorization
cards. Its petition was dismissed on July 8.
IV. DANIEL'S RESPONSE TO Tlite OR;ANIZAtIONAI.
EFFORTS-THE UNFAIR LABOR PRA(TI('lES
A. Intial Response
The union activity came to management's attention
around the third or fourth week in May. According to
George Crowder, Daniel's project manager at Sumner,
Frank Walker, personnel administrator, informed him that
the Ironworkers were engaging in a major organizing effort,
about May 24. It became, as stated by Jesse Sellers, iron-
workers superintendent, a matter of common knowledge.
Crowder discussed it with various Daniel's executives and
directed Walker to talk to some of the employees whom
Crowder knew and trusted to find out what he could. Simi-
larly, Emmerson Johnson, Respondent' employee relations
manager, was sent to the site by its counsel, "[t]o help assess
the situation to see how deep the union had got in," to
determine how many employees had signed cards and who
they were.
B. Meetings With Supervisors
Respondent then conducted a series of meetings, inform-
ing all of its ironworker supervision of the union activity.
These meetings were completed by the end of May or early
June, before the petition was filed. According to the testi-
mony of general foreman Donald McCarver and Allen
Haga, the supervisors were told of the organizational efforts
and Daniel's strong opposition thereto. They were told that
if they observed any union activities, they were to report
them to :igher supervision who, according to McCarver,
would "take care of it." They were encouraged to speak to
the employees to ask them to vote against the Union and
they were also instructed to avoid conduct which might
constitute interrogation or other interference or coercion.
McCarver recalled that they were told never to mention the
Union when discharging an employee. In the course of
these meetings, the attorneys diagrammed how an unfair
labor practice case could be dragged out through the Board
and the courts for 4 to 10 years, long enough for the project
to reach completion before anything came of the organiza-
tional efforts.'
C. Interrogation of Ironworkers
Beginning in late May, Respondent began to question
individual ironworkers, in the personnel office, ostensibly to
determine the extent of supervisory participation in the or-
ganizational efforts. The questioning was conducted by
Frank Walker, Emmerson Johnson, and Gary Pace. The
General Counsel contended that this interrogation violated
* Both McCarver and Haga were alleged in the complaint as supervisors
whose discharges violated Sec. 8(aXI). They testified as witnesses for the
General Counsel. That testimony was credibly offered and was essentially
corroborated by that of Crowder. I find that it accurately described Respon-
dent's meetings with its ironworker supervisors.
Section 8(a)(1) of the Act; Respondent asserted that its
questioning was accompanied by all required safeguards,
was necessitated by the Regional Office's refusal to investi-
gate the extent of supervisory taint, and went no further
than necessary to accomplish its legitimate ends. Respon-
dent admitted that it questioned many more employees
than testified. All of the employees testified that they were
told that their participation was voluntary, that they could
refuse to answer, and that they would be free from reprisals
if they did answer. Employee Wilbur Keith Queen. who
was questioned about a week before his June 7 discharge.
credibly testified that he was asked if anyone had pressured
him to sign a card and whether he had seen anyone on the
job soliciting cards. He denied being asked if any supervisor
had asked him to sign a card. John Jaynes. questioned
around the same time, testified that he was asked if he had
signed a card and if he knew the man who was passing
them. He admitted that he had signed a card but denied
knowing who asked him to do so. He was told this would
not be a union job. Roy Collins, questioned by Walker in
Johnson's presence, was asked whether he had signed a
card, where he got it, and whether he got it from a supervi-
sor. Starks Porter was asked, in mid-June, whether he had
been pressured into signing a card: he denied being asked
whether anyone in a supervisory position had pressured
him. William Lominac and Steve Brandon, both questioned
at about the same time as Porter. testified that they were
only asked about supervisory participation in card signing.
Olin White was questioned by Gary Pace in late June, a
week or 10 days prior to his discharge. He stated that Pace
told him that there was union activity going on and asked
him if he knew about it, whether he had signed a card.
whether he knew anyone who had, and whether anyone
had approached him to sign. White said that he had been
approached but had not signed. Pace asked him if it was a
journeyman or supervisor who approached him.
Walker and Johnson testified that they followed the ques-
tioning procedure set forth on a card which read:
I must ask you some questions which are very impor-
tant to this Company in the presentation of a legal
defense to the National Labor Relations Board.
You may refuse to answer and no reprisals will be
taken against you as a result of this interview.
I. Did any supervisor ask or attempt to persuade
you to sign a union card?
(If "no," end the interview.)
2. What was said to you?
3. Did you sign a card?
D. Discharge of Supervisors
As Respondent became aware of the identity of its super-
visors who were engaged in the Union activity, it took im-
mediate action. Each supervisor so involved was terminated
for "disloyalty to the Company": i.e., union activity.
The first to be discharged, on May 26, was Ralph Tucker.
president of Local 413. Tucker's union activity was dis-
cussed supra, in background section if this Decision.
On May 26 Tucker was brought to the front ofttice where
he met with a company attorney and another ollicial. He
706
DANIEL CONSTRUCTION COMPANY
was asked about morale on the job and reported that the
men were discontented because of low wages and other
problems. He was asked if he was aware of Daniel's atti-
tude toward organized labor and when he said that he was
not, he was told that while Daniels would not discriminate
against anyone for their union membership, it was felt that
it was in the best interest of the company and the employ-
ees that the employees not be affiliated with a union. He
was asked if he could relay this message to the employees in
his crew. He offered to memorize it and present it verbatim
if they would write it out for him. Tucker was then asked
whether he knew of the organizational talk going on. He
said that he had heard some talk. He was challenged on his
own role in the Union and in the organizing campaign and
admitted both. Tucker was sent to speak with Ed Gravat.
project manager. As he left toward Gravat's office, he heard
them say that they "had better put a stop to this thing
before it gains any more momentum." Gravat discharged
Tucker, telling him that there was nothing wrong with his
work, but that Daniel would not stand for the union busi-
ness.9
Johnny Earls was hired on March 18, and was also a
rebar foreman. He was a union member and his member-
ship was known to superintendent Long and possibly to
other members of supervision. Earls' crew worked closely
with that of Tucker on the walls of the reactor. Earls signed
a union card at Tucker's request. He also took some cards
from Tucker to deliver to others. He solicited the members
of his crew to sign cards and secured signatures from some
of them.
About a week before Earls' May 28 discharge, Gene
Miller, a rebar superintendent, asked Earls if he had seen
any union cards. He told Miller that he had. On May 28,
Earls was called into the office and discharged by Walker,
Gravat, and Miller. Miller stated that they had proof that
Earls had been passing union cards. Gravat told him that
they had no choice in the matter, that if the job went union,
they would have to close the doors.'0
Thomas Steen was a miscellaneous ironworkers foreman.
His leadership role in the union activity is set forth, supra.
He was discharged for his admitted union activity on
June 1.
On June 7, Respondent discharged Don McCarver, gen-
eral foreman, and foremen Fred Wicker, Hugh McCuicheon,
Michael Grant, and Michael Johnson for their purported
union activities.
Donald McCarver was a general foreman in the struc-
tural steel department. He had been a Union member for
26 years, a fact known to Bill Long, the superintendent who
had hired him. On June 4, McCarver went into Long's of-
fice and noticed a list of 30 to 35 names on Long's desk. He
recalled only the names of Fred Wicker, High McCutch-
eon, Michael Grant, and his own. On June 7, Wicker, who
was a foreman under McCarver, and he were called into the
office and told that they were being discharged for organiz-
ing for the Union. McCarver denied any such involvement.
His only union activity, he testified, was the signing of a
union card sometime after the meeting with the attorneys at
which the supervisors were told of the union activity. Simi-
'Tucker's testimony stands uncontradicted.
0 Earl's testimony stands uncontradicted.
larly, Fred Wicker's only union activity consisted of signing
a union authorization card.
Within about 4 weeks, Respondent concluded (errone-
ously, it appears) that Wicker had not engaged in an\ union
activity and rehired him. On September 28 Wicker left the
jobsite to take a planned vacation allegedly promised to
him. However just prior to leaving he was told that he
could not take a vacation. Shortly after leaving, he received
a notice that he had been terminated for excess absentee-
ism. He was again hired in December and laid off in a
reduction in force on February 24, 1977."
Hugh McCutcheon had been a member of Iocal 413 un-
til about 10 months prior to his discharge. Although he
denied signing an authorization card while employed at
Daniel. the record contains a card (G.C. Exh. 56 39) dated
May 12. bearing what purports to he his signature wit-
nessed by employee Keith Queen. On June 7, McCutcheon
was told that he was being discharged for having signed a
union authorization card.'
Prior to his June 7 discharge, Michael Grant had three
conversations about the Union with Dean Bentley,. his im-
mediate supervisor. About mid-May, Bentley pointed out
Ralph Tucker and asked Grant who he was. Grant told
Bentley that Tucker was president of Local 413. Bentley
said that he had seen Tucker outside the gate, with a group
of men. About a week later Bentle) told Grant that he
knew that both Grant and McCutcheon had worked for the
Union and asked which way they were leaning. Grant told
Bentley that he had not signed a card at that time. On the
day that Grant was discharged. Bentley came up to Grant.
shaking his head, and stated that he would hate to know
that Grant had signed a union card. He told Grant that the
Union had sold them out, that Respondent had the name of
every person who had signed a card. Bentley asked Grant
whether he had signed a card and whether McCutcheon
had. Grant, whose sole union activity consisted of signing a
card about a week earlier, admitted that he had done so but
denied knowledge of whether McCutcheon had signed.
Shortly thereafter. Grant was taken to the office where he
was told that he was being discharged for having signed a
card and engaged in union activity. On the following day,
Grant got a message to Bentley's home. When he did so.
Bentley asked him to sign a paper stating that he had been
coerced or pressured into signing the card. Bentley told
Grant that such a statement might not hurt his chances of'
getting his job back. Grant refused."
Michael Johnson began working at Sumner as a journey-
man ironworker in December 1975. He was a union mem-
ber and served on the Union's organizing committee. He
distributed authorization cards and witnessed the signing of
H The General Counsel amended the complaint to allege that Wicker's
June 7 discharge, as well as his subsequent termination, were violative of Se.
8(ax I).
2 McCutcheon also testified that Frank Walker told him that he was being
discharged for not turning in employees who were engaged in union activi-
ties. Walker denied making any such statement. Noting that McCutcheon
was unable to recall this critical statement until the fourth time he was asked
to repeat this critical statement until the fourth time he was asked to repeat
the conversation and until he was asked a leading question. and also noting
that unexplained conflict between his tesimony denying that he signed a
card and the existence of such a card in the record. I do not credi
McCutcheon.
' Grant's testimony stands uncontradicted
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a number of them. All of the authorization cards in evi-
dence which bear his signature are dated between May I I
and May 19. On May 28, Johnson was promoted to fore-
man. Johnson credibly denied engaging in any union ac-
tivity after his promotion and there is no probative evidence
to contradict that testimony.' 4
On June 7, Ted Adkins, Johnson's immediate superior,
took Johnson to the office. On the way, Adkins told him
that "all the union men on the job was going to be laid off
and all the foremen was going to be fired, Union Foreman."
As Johnson recalled, Adkins told him that someone had
informed the Company as to who were card signers or
union members. In the personnel office, Johnson was told
that he was being discharged for union activity.'5
On June 8, Respondent discharged Allen Haga, a general
foreman, and his brother, Daniel Haga, a miscellaneous
ironworker foreman. Both were told that the Company had
evidence that they had coerced an employee into executing
an authorization card. Both credibly denied that they had
done so and there was no probative evidence to the con-
trary. However, both had signed authorization cards while
occupying supervisory positions.'"
In late May Daniel Haga had been called into the per-
sonnel office where he met with Frank Walker, Emmerson
Johnson, and others. At that time, he was told that he was
being terminated because he had failed in his obligation as
a supervisor to report on the union activities. He convinced
them that he was unaware of those activities and his dis-
charge was rescinded. However, he was questioned about
his and Allen's prior union membership and about the
union jobs on which they had worked.'
E. Alleged Reduction in Force
The General Counsel alleged that seven employees whom
Respondent claimed to have laid off in a reduction in force
on June 7 were discriminatorily laid off or discharged. Six
of these employees, Curley Peterson, Max Whitson, Clyde
Coggins, Marvin Kirk, Roy Collins, and Tommy Johnson
made up Michael Johnson's crew. The seventh, Jake Kluttz,
was employed as an ironworker at the Fairfield site.
Each of the foregoing employees had signed a union
card. All except Collins were union members and general
14 Respondent submitted affidavits to the Board which it contended sup-
ported its belief that Johnson had engaged in union activities while a super-
visor. All of those affidavits, taken in the course of questioning employees.
discussed supra, were dated subsequent to Johnson's discharge. Only one,
that of Darrell Wright, contains any reference to time. Wright's affidavit,
dated June I , states: "On a Tuesday right after the Safety meeting a couple
of weeks ago, ... Mike Johnson asked me to sign a card .... Two or three
days later... he asked me if I wanted to sign a card." Walker did not further
pursue the question of the exact date with either Wright or the other employ-
ees from whom affidavits were taken. A "couple of weeks" prior to June II
would place this activity in the week prior to his assumption of supervisory
responsibility.
5 Johnson's testimony stands uncontradicted.
16 Daniel Haga believed that he had signed his card before becoming a
supervisor. However, he had become a supervisor within 2 months of being
hired on February 23. As all of the card signing took place in May, it was
unlikely that he had signed a card while still an employee. His card was not
in the record.
i? Daniel Haga's testimony stands essentially uncontradicted. Walker only
denied that he told anyone that they were discharged for failing to report
union activity. Emmerson Johnson did not testify.
foreman Adkins and other supervisors were aware of the
membership of at least fbur of them. Peterson, Coggins,
Kirk, and Tommy Johnson had solicited others to sign
cards. Adkins had signed a union card at Tommy Johnson's
request in early May. He subsequently expressed regret that
he had done so, to Michael Johnson. Several of these em-
ployees testified that they had listed unionized employers
on their job applications.
On the morning of June 7, prior to the layoff. Adkins
came up to where Peterson and Whitson were working. Pe-
terson, who was Adkins' brother-in-law, could see from Ad-
kins' expression that something was wrong. He inquired
and was told, "Union problems . .. your whole crew is
going to be laid off.""
The layoff took place on a Monday. Numerous witnesses
on behalf of the General Counsel testified that layoffs at the
beginning of' the week were unusual in the construction in-
dustry. These employees had no prior warning of the layoff;
several of them had driven as much as 180 miles from their
homes to begin the week's work and would not have done
so had they known of the layoff.
Project manager Crowder testified that he had requested
authorization to layoff these employees on Wednesday,
June 3, but had been told by Ted Johnson, an executive
vice president, to hold off because of the union activities.
Company records indicate that while the majority of layofis
involving the largest number of employees have occurred
on Thursdays and Fridays, Respondent did layoff some em-
ployees on Mondays, both prior to and since June 7.
At the time of their layoff. Johnson's crew had been
working on a wall at the turbine pedestal. The various em-
ployees and discharged supervisors testified that there was
some work remaining at that specific point after the layoff
and more than a year's work for ironworkers throughout
the project. Adkins had told both Kirk and Coggins that
they would be assigned elsewhere when the pedestal was
completed. Coggins was rehired at Sumner in July: he re-
turned to work upon the same building and the same wall
from which he had been laid off. He testified that he ob-
served about the same number of' ironworkers employed
there as had been there prior to his layoff.
Respondent contended that this reduction in force was
economically motivated and necessitated. According to
Crowder, the turbine pedestal upon which these employees
had been working was completed and there was no other
place to assign them. In part, he said, this was caused by the
failure of a subcontractor to complete caisson work re-
quired before certain additional construction could begin.
Crowder further explained his decision to lay off employees
in June with the aid of charts showing rebar installation by
tons and the cost of that installation in man hours per ton
(mhpt) fbr the turbine area and for all permanent struc-
tures. According to those charts and Crowder's testimony.
for all permanent structures in February there had been 700
tons installed at a cost of 35 mhpt. It dropped to 500 and
600 tons, at 45 and 55 mhpt respectively in March and
" The testimony of Peterson and Whitson stands uncontradicted. Adkins
did not testify and Gene Miller's testimony to the effect that he did not tell
Adkins to layoff Johnson's crew for union activities is insufficient to rebut
the credible testimony of Peterson and Whitson or the adverse inference is
properly drawn from Adkins' unexplained testimonial absence.
708
DANIE. (CONSTRLCTION COMPANY
April. In April. 25 rebar ironworkers were laid off. Ma's
production was 510 tons at a cost of 50 mhpt. In June.
however, overall rebar installation dropped to 300 tons, and
the cost rose to approximately 116 mpht. In July. produc-
tion rose minimally to 315 tons: costs dropped slightly to
110 mhpt. For the turbine area, where the affected employ-
ees worked. April and May were "highly productive," with
approximately 200 tons installed in each month at a cost of
57 60 mhpt. In June, following the lay off of 7 reinforcing
ironworkers out of a complement (as of May 31) of 246.,
production dropped to 75 tons and costs rose to 110 mhpt.
Production dropped even further, to 38 tons, in July, and
costs rose again to 142 mhpt. Crowder testified that the July
figure indicated that the June layoff had not been large
enough. However, no additional ironworkers were laid off
in July. In fact, while the rebar complement decreased from
246 to 180 (including acquisitions and separations for all
reasons) during June. it increased in July back up to 245.
Eighty rebar ironworkers were hired in July. The rebar
ironworker complement remained essentially constant in
August and September. Production increased, and costs de-
creased, in both of those months. Crowder acknowledged
that there was a normal correlation between low production
and high costs. Notwithstanding the fluctuations described
above, Respondent's production charts reveal that over the
life of the project, man hours per ton have remained essen-
tially constant, and vary little between the "turbine area"
and "all permanent structures." To the extent that they dif-
fered at all, the average for the turbine area was slightly
lower.
Crowder testified that Respondent seldom considered se-
niority in selections for layoff. Its criteria were productivity,
qualifications, and attendance. When a layoff is called for,
he said, they would cull out the least desirable employees.
As previously noted, the instant layoff involved all of the
members of a single crew. Crowder claimed that these were
the employees in the least productive area.
About a week after his layoff. Collins called Daniel's per-
sonnel department in Greeville. He spoke with a Jerry
Raines. whom he usually called when he was looking for
work. Raines told him that they were not hiring at Jenkins-
ville, that Collins "would have to wait until they got it kind
of straightened out down there again," and then Collins
could go back to work. As noted, Collins was called back in
July. When he reported to the gate and filled out an appli-
cation, he was told that he would have to wait until the next
day because "they wanted to check [him] out." He started
working the next day.
Marvin Kirk applied for work at Jenkinsville on June 22.
He filled out an application and was told that they would
not be hiring for 3 to 4 weeks. He reapplied on July 22 by
telephone. He was told that he would be called the follow-
ing day and told whether he would be hired. Kirk called
Frank Walker on July 23. Walker said that they would
have to check his record. He told Walker that he had been
told the prior day that they would let him know if they
could hire him. There was a short pause and Walker told
him that there was no way that they could put him back to
work. Walker had no recollection of Kirk or any conversa-
tion with him. I credit Kirk's recollection. In October. Kirk
received a telefax request from Respondent to call Green-
ville collect in regard to employment. He called on October
13 and while he was explaining who was calling. the recipi-
ent hung up. Respondent explained that it was its practice.
when seeking employees, to send out such telegrams. After
the required positions are filled, all further collect calls are
rejected.
Max Whitson received a similar telefax about October
12. He called in on October 14 and was referred to Jesse
Simmons. Simmons asked whether Whitson was a miscella-
neous ironworker. Whitson told him that he had worked
miscellaneous, but preferred rods. Simmons told Whitson
that they needed 25 rodbusters at Sumner. When Whitson
told Simmons that he had worked at Sumner, Simmons
asked why he left. Whitson said that he had been told it was
for union activities. Simmons stated. "I don't know whether
they will hire you back or not." He promised to call Whit-
son back. but never did.
Curley Peterson also received a telefax inquiry. Rather
than calling, he went to the site. After attempting to apply
twice, and being told that they were not hiring, he spoke
with Garv Pace. Pace initially told him that he as not
eligible for rehire. Peterson showed Pace that he had left in
a reduction in force. Pace told him to return the following
day. When he did so Pace told him that they would hire
him back but made him promise to tell Pace if he saw any
union cards being passed. Pace said that there was not
going to be a union there.'
Daniel's "Labor Turnover Report," for the month ending
October 31. shows 104 reinforcing ironworkers hired during
that month. From the beginning of that month through its
conclusion, the complement within that classification rose
from 247 to 329.
Jake Kluttz was the only employee named in the com-
plaint who had worked at the Fairfield Pump Station rather
than at Sumner. He had been hired, at the suggestion of
Fowler. on May 31 as a rodbuster. He was a union mem-
ber, and his application showed some unionized employers
among his references. He had signed a union authorization
card and talked about the Union with some of the men with
whom he was working. He worked until June 10 and, when
he came to work on that date, found his timecard had been
pulled. He was told to report to the office. He did so, and
observed the same man. James Long. to whom he had
made his application. While there, he testified his foreman.
Bill Dorn, came in. asked why Kluttz was late and went in
to the office at the back of the trailer. Kluttz heard his
foreman and the others in the office arguing over his layoff.
the foreman protesting against it. Kluttz then heard one of
the men say, "Jesus Christ. this man is the ringleader of
413, get him the hell out of here. Bill called somewhere and
found this out." Kluttz said that within a few minutes.
someone came out with his check, and he left. 2
m. Peterson's credible tesmimony stands uncontradicted.
20 James Long, personnel administrator at Fairfield (Frank Walker's coun-
terpart), testified (but produced no documentary support thereof) that Kluttz
wasiust one of 61 employees laid off on June 10 (a Thursday and pay day at
Fairfield). Of those. he said eight were ironworkers. Kluttz was the only
ironworker laid off from the night shift. Kluttz was the least senior employee
and senior ity, he claimed. was followed for layoffs at Fairfield. ong denied
any knowledge of Klultz' union activities. He further denied that Kluttz
would hase any reason to come to his office on the night of his layoff and
denied that anyone i his presence made a statement such as was related by
Klutz. Based upon m observation of the witnesses, noting Kluttz accurate
{(sontinuedi
709
I)I('ISI()NS OF NATIONAL I.ABOR REI.ATIONS BOARD
Shortly after the June lasoH;f, according to William
Dickey. Richard l)ickey. and William l.ominac, they at-
tended a safety meeting conducted by Jesse Sellers, iron-
worker superintendent. In the course of this meeting, Sellers
was heard to say that there were lot less men at this
meeting than there had been at the prior meeting and that
there would probably be less at the next. When asked why,
Sellers said "Oh, you know. All this damn union shit."2'
F. iTestimomnq of Tice Randolph
Tice Randolph had worked for Daniel fr about 3 years,
at various locations. Between July 1975 and September
1976, he was the ironworker and civil superintendent for a
Daniel project in Batesville, Arkansas. About mid-June,
Randolph was called into the office of' project manager Bill
Rankin. Rankin handed him a typewritten list with about
35 to 40 names and told Randolph:
[Wlhat we are talking about here. I don't want it to go
any further than this [door] . . . [Y]ou notice this list
here . . . this is a list of the men they have run off the
Jenkinsville job for union organizational attempts, and
for some reason or another, the Greenville office thinks
that they might be coming this way and try to organize
us here . . . I want you to memorize as many of these
names as you possibly can . . . and if any of these men
show up at the gate, I want to know about it.... [W]e
will let them go ahead and put in an application and
then I want to know about it when they are here.
It was made clear that he was to hire none of the people
named on the list. Randolph looked at the list and recog-
nized some of the names. He recalled the names of Roy
Collins, Max Whitson, Marvin Kirk. Clyde Coggins, Jake
Kluttz, Ralph Tucker, T. D. Buckner, "a couple of Peter-
sons" including one named "Curley" whom he pointed out
to Rankin as being Teddy Adkins' brother-in-law. 2 Mike
Johnson, Tommy Steen, Don McCarver, Tommy Johnson,
Gerald Kerr, William Lominac, Marvin Smith, and Steven
Brandon.
Subsequent to his conversation with Randolph, and after
he left the Batesville job, Randolph spoke separately with
both Malcolm Rainwater, personnel director at a Daniel's
job in Oklahoma, and Emmerson Johnson, Daniel's em-
ployee relations manager. He told them both that he had
been approached by Bobby Fowler to testify about the list.
description of Long's office and its personnel, and further noting the inclu-
sion of Kluttz' name on a list of union activists discharged from the Jenkins-
ville site, as described by Tice Randolph, infra. I credit Kluttz.
2i Sellers admitted that he made a similar statement, but related it to Re-
spondent's alleged stepped-up enforcement of its safety rules rather than to
the union activity. A comparison of Seller's testimony concerning when he
made the statement and what caused him to make it with the evidence of
when the safely program was developed and announced and with the record
of discharges allegedly pursuant to that policy (discussed infar). establishes
that Seller's version is improbable, if not impossible. Additionally, Lominac,
who credibly testified in regard to Seller's statement, was one of those alleg-
edly discharged under that safety policy. If, as Sellers claimed, he made his
statement after a number of employees had been discharged for safety viola-
tions, Lominac would not likely have been there to hear him. For these
reasons, and considering the comparative demeanors of the witnesses, I
credit the Dickeys and Lominac rather than Sellers.
22 All of these. Randolph was able to recall of his own, unrefreshed, mem-
ory. The remaining names he recalled only after having his memory re-
freshed by examination of the names listed in the complaint.
Rainwater said that if he did, it would ruin them. He asked
Johnson to place him on a job where Fowler might not
pursue him for his testimony. Johnson told him not to
worry, as they were looking for a place to put him to work
and would have him on a job in a couple of weeks. How-
ever, he never heard from Johnson after that.2
G. Testimonyv of Curtis G. Whisennant
Curtis Whisennant had worked for Daniels. on and off
and in a variety of supervisory positions, for about 9 years.
From June to November 1976, he was employed in the
welding department and, after the middle of June, was a
general foreman acting in the capacity of' welding superin-
tendent. Approximately 80 percent of the welders working
under Whisennant were ironworkers.
When Whisennant was first placed in his supervisory po-
sition, as assistant to then superintendent Bob Alley, Em-
merson Johnson called him aside and told him:
Curt, they are trying to do the same thing that they did
back in '62 to us ... they are trying to organize the job,
I want you to keep a lookout; if you hear anything, or
there is anything, or anything is said regarding union
activity, I want you to get in touch with me.24
Among Whisennant's early assignments, in July, was the
screening of welder applications. After he had screened
some, Bill Burns (identified by Whisennant as the personnel
representative working outside the gate) showed Whisen-
nant some of the applications he had approved, pointed out
some of the prior jobs listed on the applications, and asked
Whisennant, "Did you see this... did you know this was a
union job?" When Whisennant replied affirmatively, he was
told that they could not use the man. Thereafter, when
Whisennant saw that an applicant had union affiliations, he
would make a excuse for not hiring him. He also instructed
his assistant, English, to do the same thing.
Whisennant testified that he had been told by Gary Pace
that any questions about whether an employee was desir-
able could be checked out by calling Greenville, Daniels'
headquarters, where files were maintained on all former
employees. According to Whisennant, Pace referred to or-
ganized labor, union, or union influences in telling him this.
As previously noted, Pace did not testify. Other witnesses
for Respondent established that Daniels does maintain
computer records of former employees, for the purposes of
filling job openings. Those records list the employee's his-
tory, including discharges, which are coded symbol which
would indicate if a former employee had a union affiliation
21 Neither Rankin nor Rainwater were called to refute this testimony and
no explanation for their absence was offered. Johnson testified but did not
deny the conversation with Randolph. He only denied that he had given the
names of the prounion people at Jenkinsville to anyone at Batesville. An
inference adverse to Respondent is warranted from the failure to adduce any
evidence controverting Randolph's testimony. Moreover, I observed no infir-
mities in Randolph's demeanor such as might impair his credibility. There-
fore. although Randolph harbored some resentment against Daniels based
upon his subsequent employment history, I find his uncontradicted testi-
mony to be credible.
21 Although Johnson testified on behalf of Respondent, this testimony is
uncontradicted.
710
DANIEL CONSTRUCTION COMPANY
or had been fired for union activity. Whisennant never uti-
lized the alleged system to determine whether an applicant
was a union activist.
Whisennant further testified that one of his superiors, a
Mr. King, gave him instructions in regard to eliminating
persons who were undesirable either because of their union
activity or for other reasons. He was told that there had to
be a legal reason, such as a voluntary quit, reduction of
force, falsification of an application, or a safety violation.
These he understood to be pretexts. King told him that the
National Labor Relations Board would accept two disci-
plinary forms in an employee's record as reasonable
grounds for dismissal."
H. Alleged Safety Violation Discharges
The General Counsel alleged that the discharges of seven
employees for alleged safety violations were pretextual. that
these employees were actually discharged for their union
activity. Respondent controverted this allegation.
Gerald Lee Kerr started at Sumner in mid-April, as a
rodbuster on the day shift. He was a union member, served
on the Union's organizing committee, signed an authoriza-
tion card, and solicited a number of other employees to sign
cards. His union membership was known to Foreman
Johnny Earls and Don McCarver (both discharged for
union activity) and Ted Adkins, general foreman.
In about late May, Kerr and a fellow employee known to
Kerr only as Ralph were approached by Bill Hackard, the
general foreman. Hackard told him that they still had their
jobs if they wanted them, but they would have to work on
the third shift. They were the only two on the eight man
crew transferred to the night shift."
On June I . Respondent took an affidavit from employee
James Dvis. In that affidavit, Davis reported that Kerr
had solicited him to sign an authorization card. On that
same day, in the early evening, Roy Neeley, their foreman,
discharged Kerr for wearing his hardhat backwards and
Ralph for failing to wear safety glasses. Kerr did not deny
wearing his hardhat backwards. It was, according to Kerr
and other credible General Counsel witnesses, a common
practice among ironworkers. Their testimony was corrobo-
rated by at least two of Respondent's witnesses. Because of
the bill of such hats, reversal was necessary when wearing a
welding shield; it was also more convenient when using
burning goggles. At the time Kerr was discharged, he had
been burning and was using goggles. He testfied that he had
worn his helmet thusly every night that week, including
when a safety inspector had come around to check on his
safety glasses, and nothing had been said to him. He had no
prior warnings for safety violations. Kerr also testified that
at the time he was discharged, other employees in that im-
mediate area were similarly wearing their hardhats re-
" Whisennant's testimony in this regard is uncontradicted and is credited.
However, his further testimony to the effect that he personnally was involved
in the discriminatory discharges of five or six employees was too general to
be accorded any probative weight.
"General Counsel amended the complaint to allege this transfer as a
further violation of Sec. 8(aX).
27No unfair labor practice charge involving Ralph----- has been
filed.
versed.28 Clyde Coggins testified, without contradiction that
he had worn his hardhat backwards in the presence of su-
pervisors Gene Miller and Ted Adkins. without being di-
rected to change it.
Respondent's safety rules require that a hardhat be worn
at all times, as is stated in the construction safety handbook
which is given to each employee. That handbook contains
no proscription against wearing a hardhat in a reversed po-
sition. Respondent's new employees also receive an orienta-
tion, which includes a slide presentation. In that slide pre-
sentation, they are told. "The only employees allowed to
wear their hard hats backwards are welders and connec-
tors." In the slides, however, are shown a number of em-
ployees wearing their hardhats in the reversed position. Not
all the employees so shown are wearing welding shields or
burning goggles.
Paul Vincent was also a rodbuster on Roy Neeley's crew.
He signed a union authorization card while on the job and,
during a supper period around the beginning of June, in
Neeley's presence. gave another employee a card. On June
15. according to Vincent, he was assigned to flag a crane
and climbed to a vantage point from which the crane could
be seen. It was a foggy night. and he removed his safety
glasses momentarily to see the crane better, cleaned them
and put them back on. Neeley called him down and Vin-
cent was discharged for not wearing his safety glasses. Vin-
cent had no prior warnings for safety violations.
Vincent claimed that he had been told, in the course of
the orientation, that employees would be discharged after
the third safety violation. However. he was unable to iden-
tify the individual who made that statement. Neither the
transcript of the safety portion of the orientation nor the
safety handbook contain any such limitation. It is clear that
at the time of Vincent's discharge, there was a rule requir-
ing safety glasses at all times on the site. However, accord-
ing to foreman Paul Pringle. prior to at least July 1. it was
not common to see an employee not wearing his safety
glasses. Respondent's orientation slides show a number of
employees without their glasses.
In November. Vincent returned to the jobsite, completed
an application, had that application signed by a superinten-
dent, was sent for a physical examination, received an em-
ployee's badge, and then was told to get his license number
for entry on a card that would permit him to enter the
premises each night. When he returned to the office with his
license number, having completed the hiring process, he
was told that Daniel could not use him because of his prior
discharge had been for a safety violations.
2s Neeley claimed that he had warned Kerr twice before about wearing his
hard hat backwards. He also denied observing other employees wearing hats
in that manner. I was unfavorably impressed with Neeley's testimonial de-
meanor. Neeley denied knowledge of the union activity until mid-July. In
view of the meetings Respondent held with all supervision, and the fact that
the union activity was common knowledge in June. Neeley's testimony is, at
best. implausible. Accordingly. I credit Kerr.
2' Neeley asserted that he had warned Vincent twice for failure to wear his
safety glasses. I was more favorably impressed with Vincent's demeanor as a
witness than with that of Neeley. and credit Vincent.
l Vincent testified that James R. Bailey. a welding instructor. told him
that they had denied him rehire because he had signed a union card. Virn-
cent's testimony was corroborated by that of his wife; it was denied by
Bailey. The evidence reflects that Bailey had worked for Daniels as a welding
instructor, but at the time of this conversation. was employed by the county
(Continued)
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William M. Lominac was an ironworker hired on May 18
and discharged on July 2. He was a member of the Union
and has passed out authorization cards at the jobsite during
his employment. Both his membership and his organiza-
tional activities were known to his supervisors. He had been
questioned by Frank Walker concerning the organizational
activities of supervisors.
On July 2, Lominac's foreman, Futrell, assigned him to
make some welds on columns which were 12 to 14 feet
above ground level. He did so. After he had completed the
work and returned to the ground, he observed Furtell and
General Foreman Barfield in conversation. Futrell told
Lominac that he was discharged for not wearing his safety
glasses while working up on the iron. In fact, Lominac had
been wearing a welding shield, a fiberglass mask covering
the entire face with an opening containing four layers of
glass for vision. He had not worn his safety glasses under
the shield because to do so would have further restricted his
vision. He had put his safety glasses back on as soon as he
took off the shield. He was taken to the office where his
termination records and appraisal were completed. Both
forms, signed by Barfield, indicate that he was discharged
for a safety violation (singular). and the appraisal specifies
"safety glasses."" Lominac had received no prior warning
for safety violations.
Steven Brandon was hired as an ironworker on May 18.
He was a union member, had signed an authorization card
and solicited other employees to sign. His union affiliation
was known to his foremen, Fred Wicker and Carl Futrell.
his general foreman. Danny Barfield and to Frank Walker,
who had questioned him about supervisory participation in
the organizing activities in the week before his discharge. In
that interview, Brandon had affirmed that he was aware of
the union activity and volunteered that he was a member of
the organizing committee.
Brandon was discharged on July 6. allegedly for failure
to wear his safety glasses. Brandon testified that he was
standing outside the fabrication shop prior to the start of'
work when Futrell told him to put his safety glasses on. He
said that he would when the whistle blew. Barfield, the gen-
eral foreman, came out of the shop and asked to speak to
Brandon. He asked Brandon to quit and, when Brandon
refused, said that he had to fire him. At Barfield's sugges-
tion, Brandon provided a pretext for Barfield to fire him,
sitting down and refusing to work. However, after he
checked in his tools, Barfield said that he could not fire him
for that, but would have to fire him for a safety violation
because he might have to work for Daniel again. (Daniel, it
was testified, maintains a rule against rehiring employees
discharged for safety violations.) Barfield testified that he
made the decision to discharge Brandon on his own and
solely because of his violation of the safety glasses require-
to teach welding at the site. There was no evidence to establish that Bailey
was a supervisor or agent in Daniel's behalf, or that he was held out by
Daniel as having the authority to speak for it. Resolution of this credibility
conflict is thus unnecessary.
31 Barfield testified that Superintendent Gravat had directed Lominac's
discharge because he had observed him working high above the ground
without either safety belt or safety glasses. Of these, he said, the safety belt
would have been the more serious violation. Noting that the termination
papers refer only to a singular safety violation, safety glasses, and noting
further that neither Gravat nor Futrell testified, and considering the com-
parative demeanors. I credit Lominac.
ment. He denied asking Brandon to quit voluntarily or
going through charade to create a basis for discharge. Bran-
don's testimony was, in part, corroborated by that of Wil-
liam Dickey, a foreman (alleged in the complaint to have
been discharged in violation of Section 8(a)( )). who was
told by Barfield that he did not want to fire Brandon and
had asked him to quit. Additionally, Fred Wicker, a fore-
man earlier discharged for union activity, who had been
reinstated on the day of Brandon's discharge, testified that
upon his return Barfield told him to discharge Brandon be-
cause Brandon was a union organizer. Wicker refused. I
credit Brandon's testimony as thus corroborated.
On July 7, ironworkers Staorks A. Porter, Kermit Ro', and
Wilbur Keith Queen were all terminated for alleged failure
to wear or use safety belts. All three had signed authoriza-
tion cards and were, or had been, members of the Union.
Various members of supervision were aware of their union
backgrounds. Unionized employers were included among
their references. All three of these employees had been
questioned about supervisory participation in the organiz-
ing campaign. In addition, just after Michael Grant had
been discharged on June 7, Porter was asked by Dean Bent-
ley, a general foreman, whether anyone had pressured him
into signing a card.
On the day of his discharge. Porter was working above
ground level when his foreman. Billy Hicks, called him
down. Hicks told him that he had been observed by Terry
Bishop. assistant superintendent, working without having
fastened his safety belt. Hicks told him that Bishop had
ordered the discharge, and said that licks would be dis-
charged if he did not carry out the order. As they walked to
the toolroom, Hicks told Porter that safety was not the real
reason for his discharge. that they both knew that the real
reason as Porter's prior union affiliation. Porter candidly
admitted that at the time he was called off the iron, he had
not fastened his safety belt and had only worn it about half
of the time on the day. Ile observed that there were other
ironworkers not tied off at the moment when he was called
off the iron. His testimony is uncontradicted
Bishop recalled directing the discharge of an employee
whom he had observed to be working without a tied-off
safety belt. He could not identify the employee as Porter.
Bishop only recalled one other instance of his causing a
discharge for that reason, a case wherein the employee had
fallen. Bishop admitted that he had observed workers up on
the iron without using a safety belt and, when asked
whether he had ever directed their termination just because
they were not using the safety belt, he replied. "Well. I
would have to say that if I seen a man doing it several
times, more than likely, yes." Bishop did not claim that he
observed Porter working without a fastened safeily belt on
more than one occasion.
Kermit Roy was working as a rigger on Paul Pringle's
crew. On July 7 he testified at the following the weekly
safety meeting Pringle asked him if he would not just quit.
When Roy asked why he should. Pringle gave no reply.
Roy, being the oldest man in his crew, normally worked on
the ground. On this morning however, Pringle assigned him
to climb up on the iron to flag a crane. Roy did so. le
climbed up, wearing a safety belt, stopped. observed that he
needed a better vantage point and began to climb higher.
712
DANIEL CONSTRtC(TION (COMPANY
As lie was climbing. Pringle called him down and dis-
charged him for failure to have his safety belt fastened.'?
On the morning of his discharge, Keith Queen had been
working in a crew on a wall, installing "imbed plates."
Queen was inside the wall, an area from which he could
hardly fall. and had not fastened his safety belt. He ob-
served his forman, Bobby Harris. talking to Dean Bentley.
Harris then came over and called Queen down. He told
Queen that he hated to do it, but he had to let Queen go.
Queen asked for a reason and was told that he had com-
mitted a safety violation, failure to tie off his safety belt. He
protested that he was not being given the real reason and
Harris told him, "Well. you know and I know but I can't do
nothing about it. The reason that I am telling you that I am
firing you is for safety violations." Queen continued to pro-
test that the real reason was his former union membership
and Harris repeated that Queen knew the reason but the
reason he was giving Queen was the safety violation.
A couple of days later. Harris dropped by Queen's home.
Queen was not home, but his wife, Connie, was. Harris
asked if there were any hard feelings over his discharge of
Queen. Connie Queen said that there were not, that they
knew that he only did what he had to do. Harris told her
that Dean Bentley had directed him to discharge Queen
because of Queen's prior union affiliation. He told her that
he was trying to get Queen's job back but it was "still hot
down there" because of the Union.3 3
None of the three last described employees had received
any prior warnings or citations for safety violations. All
three attended a safety meeting on the morning of their
discharge in which Jessie Sellers told them, as he had done
on prior occasions, that they would be discharged upon
receipt of a third reprimand for violation of safety rules.
Both Porter and Queen recalled Sellers as stating that en-
forcement of the safety rules was being tightened.
According to Respondent's safety engineer, Bobby Phil-
lips, a step-up of the safety program was undertaken in
early July because of an increase in the number of accidents
on the site from January to that time and an accident on
July I, which resulted in an employee's death on July 13. In
March, there had been 288 injuries in a work force of 1.500:
in April, May and June. with approximately 1900 employ-
ees, there were 463, 479, and 504 injuries respectively. A
12 Pringle testified that he specifically instructed Roy to wear his belt when
he told him to climb the iron, subsequently noticed that Roy was working on
the iron without a belt, again advised him to put a safety belt on, and then
discharged him some time later when he again saw that Roy had not put on
a belt. He claimed that Roy was on the iron for about 2 hours, and never tied
off. before being discharged. I cannot credit Pringle's testimony. In addition
to my consideration of the demeanor of these witnesses. I deem it implausi-
ble that Roy would have repeatedly disregarded such explicit instructions to
wear and use a safety belt, particularly at a time when other union-affiliated
employees were being discharged. or that Pringle would have directed him to
put on a belt a second time and not remain to observe whether he was
complying. Moreover. I note that Pringle denied any knowledge of the union
activity until 2 to 3 weeks after Roy was discharged. This disclaimer, in the
face of evidence that the union activity was common knowledge much earlier
and had been the subject of meetings for supervisors during June, reflects
adversely on the credibility of Pringle.
M Both Keith and Connie Queen impressed me as credible witnesses. I was
less favorably impressed by Harris' denials of the loregoing testimony. I
found particularly improbable Harris' testimony that he stood and observed
Queen working in violation of the safety belt requirement for 3 to 5 minutes.
with his own supervisor present, and did not take some quicker action to
correct the violation and protect both the employee and his own job security
policy was prepared and issued to all superintendents and
department heads by Gavat. the construction manager, on
July 754 It stated:
Etffective this date, all safety rules will be strictl en-
forced on this project for all personnel and citations
will be given to anyone disobeying any rule.
If an employee receives two (2) Safety Citations for
an, reason, he will be terminated and his Foreman will
regress to Journeyman. If two (2) foreman are re-
gressed to Journeyman, the General Foreman will au-
tomatically regress to Foreman.
According to Phillips. nothing in this policy precluded a
foreman from discharging an employee on his first viola-
tion. However, prior to this policy announcement, saftet
had been enforced only by the safety deparment: the fore-
men had not been enforcing safety, regulations. Sellers ac-
knowledged that prior to the promulgation of Gravat's di-
rective, everyone was lax on safety. Employees were not
wearing safety glasses, they wore their hardhats backwards.
and as many as a quarter of them were not using their
safety belts. Foreman Paul Pringle corroborated this aspect
of Sellers' testimony.
Phillips further testified that there were some safety vio-
lations which were deliberate, flagrant. or which jeopar-
dized the employee or others maliciously which would war-
rant immediate discharge. Working without a safety helmet
might be such a violation, but working without safety
glasses or with a hardhat reversed would not. He stated that
in his own observation. rigging crew connectors usually
worked with their helmets reversed because they were re-
quired to frequently look up and the bill of the helmet ob-
structed their vision. Welders and others who wore face
shields also wore hardhats backwards.
1. Other Discharges
James W['alker was an ironworker leadman (nonsupervi-
sory) who had begun work at Sumner in September 1975.
He signed an authorization card around April or May. he
testified, and asked others to do so. Among those he asked
was his foreman. Jack Hiatt.
Walker's last day of employment was May 20. On that
day, he told his supervisors that he had to leave, for medical
reasons, for 2 to 6 weeks. He claimed that Ted Adkins told
him that they would hold his job open. He further claimed
that he was given a white slip stating that he was eligible to
return to work upon his release from the hospital." Person-
nel Manager Frank Walker and Foreman Bill Bollick testi-
fied that Respondent did not give employees forms indicat-
ing that they were eligible for rehire and that Respondent
did not hold or guarantee jobs for employees terminated
because of medical problems. Bollick denied that Walker
was guaranteed a job upon his return. James Walker admit-
U Respondent contended that this policy was made knows n Ito the foremen
a week or more prior to its publication date In view' of the timing of the
accident eports and the ultimately fatal accident which gave rise to this
stricter policy. I find it unlikely that the policy could have been announced
more than a couple of days prior to July 7.
" Walker did not produce this form although he claimed to have a copy of
it He denied that the form he had received was his termination appraisal,
which had stated that he was eligible for rehire
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted that on his last day of employment he was told, by his
supervisors Bollick, Long, and Adkins, that he was being
terminated for excessive absenteeism. He admitted to some
absenteeism but denied that it was excessive.
James Walker returned to the Sumner site on Monday,
June 7. He was refused admittance at the gate and was told
that Respondent was not hiring rod busters. After trying,
unsuccessfully, to contact Adkins, he was referred to an
unidentified male in the personnel office. That person told
him that. on orders from Greenville, "they were not putting
rod busters on because of the union conflictions." Walker
further claimed that when he returned on the following
Monday. the personnel representative came to the door and
announced to those job applicants present that they were
not hiring rod busters because of union problems. However,
Walker was offered a laborer's job, at about half of the pay
rate that he had received as a rod buster. Other higher pay-
ing jobs for which he was not qualified were also being
filled.
Darrell Rice was employed at the Sumner site for Janu-
ary until May 28, as a rigger. He was a member of Local
601, a sister local to Local 413. He signed a union authori-
zation card and solicited a number of other employees to do
likewise. The record contains four cards witnessed by Rice,
three dated in mid-May and a fourth which is undated. His
union activity was observed by at least one supervisor, and
his union affiliation was known to others.
About a month prior to his May 28 discharge, Rice testi-
fied, Rod Buster Foreman Woodrow Ellisore asked him if
he was having anything to do with the soliciting of appli-
cants for the Union. When Rice feigned ignorance, Ellisore
allegedly said that he knew that if there were any union
activity going on, that Rice would know about it and cau-
tioned Rice that if he saw Rice soliciting for the Union or
engaging in any other union activity, Rice would be termi-
nated. Ellisore, who had been a member of Rice's local,
admitted threatening to discharge Rice for engaging in
commercial activities, selling candy and soft drinks, when
he was supposed to be working. Ellisore claimed that Rice's
activities were hindering production, because he would not
be present when needed to assist in the operation of the
crane. On balance, I find that Ellisore presented the more
credible demeanor and I do not credit Rice's testimony as
to this alleged threat and interrogation. In so concluding, I
note that at the time of this alleged conversation as de-
scribed by Rice, the union activity had not begun in ear-
nest. I note also that Rice was not recalled to rebut or deny
Ellisore's testimony.
About a week or so after Rice's alleged conversation with
Ellisore described above, he was allegedly spoken to by Da-
vid Pruitt, general foreman of the night shift. Rice testified
that Ellisore was present. Pruitt asked him if he had ever
worked on a union job. Rice played dumb. Pruitt did not
testify; however, Ellisore credibly denied being present at
any conversation between Pruitt and employees.
About a week before his termination, Rice spoke with
Gene Cassidy, miscellaneous ironworker foreman. Cassidy
asked him if he was still a member of the Charleston local
(Local 601) and Rice told Cassidy that he was. Cassidy told
Rice that it made no difference, that he was glad to have
Rice working there. Although Cassidy testified. he did not
deny this conversation.
On May 21 Rice left work early, with permission, be-
cause of a death in the family. At the end of that week, he
took a I week vacation, which he had planned for some
time. He claimed that he had told Cassidy of his plans sev-
eral months earlier and had been told not to worry about it
so long as he let Cassidy know when he was going. Rice
testified that he told Cassidy that he was taking a week off,
but asked Cassidy to cover for him by saying that he had to
leave town because of the death in his family. Cassidy alleg-
edly agreed and indicated that he would take care of it.
When Rice returned on June 7, however, he was told that
he had been discharged for excessive absenteeism, failure to
call in each day during his absence. Rice continued to
maintain the subterfuge of an absence necessitated by a
death in the family. Rice further testified that after his dis-
charge he spoke with Cassidy who told him that on both the
first and second nights of his absence (June I and 2), Assist-
ant Superintendent Hooks had come looking for Rice and
had discharged approximately 15 other men each night.
Cassidy denied telling Rice that he would cover for him but
admitted that he told Rice that unless Rice's absence was
noticed, he would not report him. According to Cassidy, the
superintendent checked the timecards each night and no-
ticed Rice's absence on the second night. He asked Cassidy
whether Rice had called in. Cassidy was subsequently in-
formed that Rice was discharged for excessive absenteeism.
Cassidy impressed me as a candid witness who attempted to
accurately recall events as they occurred. As noted, I was
less favorably impressed by Rice. Accordingly, I credit the
testimony of Cassidy.
Rice made several unsuccessful attempts to be rehired at
Sumner. On one occasion, about 3 weeks after his dis-
charge, he spoke with a long-time Daniel employee, L.C.
Chandler, who said that he would try to get Rice back on
the job. With Rice on an extension phone, Chandler called
Roger Benton, ironworker superintendent. In response to
Chandler's question, Benton said that he needed as many
good riggers as Chandler could send him. He described
Rice's experience, which Benton said sounded good. He
then told Benton Rice's name and mentioned that he
worked on the site before. Benton replied that they could
not use Rice; he gave no reason. Neither Benton nor Chan-
dler testified.
Marvin Smith was employed as a journeyman ironworker
at Sumner from May until his discharge on July 2. He was
a longstanding member of Local 413 and the only union
member of Foreman Rick Byce's crew. His application
listed unionized employers in his employment history.
About mid-June, Byce called his crew together. According
to Smith's uncontradicted testimony, Byce told them that
they had gotten word that cards were being passed out, that
possibly it was getting out of hand, that he could not tell
them whether or not to sign a card, "but ... if it does go
union ... the ones that don't belong to the union are going
to be out of a job."
On July 2, Smith was working on the construction of
columns, "plumbing the cables with the piano wire, getting
it lined up for the welders." This work required that the
employees sit up on the elevated steel. Part of their time is
consumed in waiting for the welders to arrive to complete
the work. Terry Bishop drove up, talked to Byce and then
called Smith over. Bishop told Smith that he had to "carry"
714
DANIEL CONSTRUCTION COMPANY
him to the office. As he and Byce accompanied Bishop to
the office. Byce asked whether Smith was being fired, was
told that Smith was, and questioned whether he should not
have had something to say about it as Smith's foreman.
Bishop indicated that he was merely following orders, that
Gene Miller, rebar superintendent, had told him to bring
Smith to the office to be discharged for "failure to do as-
signed duties." Byce protested that Smith was doing what
he had been assigned to do, as were the other employees. At
the office, Smith's termination slip was already made out
with the reason for his discharge as stated by Bishop.
Smith and Byce then spoke with Gene Miller. Miller told
them that he had driven by three times and observed Smith
sitting down. Byce protested that Smith had to be seated to
perform the work that had been assigned to him and that
three other welders were also there and were seated. Byce's
protestations were unavailing. Later that afternoon, as
Smith and Byce talked while Smith was waiting for his
carpool to leave, Byce told him, "You got a pretty good
idea why you got fired, didn't you?" Smith said that he did
and Byce told Smith that he had nothing to do with it.
Byce did not tesify. Bishop, although called as Respon-
dent's witness, did not refer to Smith's discharge. Miller
testified that he observed Smith three times in the span of
about I hour. Each time Smith was sitting down. He said
on the first occasion that Smith could not have been
straightening the wire because he was facing in the wrong
direction. On the second and third occasions, Smith could
have been straightening the wire (he admitted that an em-
ployee would probably be seated in such a position to be
performing that work). Miller claimed that he reported
Smith to Gravat after his second observation and that Gra-
vat told Bishop to discharge Smith. At hearing Miller was
asked:
Q. (By Administrative Law Judge); If [Smith] was
in the normal position for someone to be straightening
wire, and that was the work that was being done on the
iron at the time, and he could have been doing that at
that time, why did you report him?
He answered:
A. I mean because he was just sitting there as far as
I was concerned.
Q. But you said that he could have been working on
the wire?
A. That is possible.
William Dickey and his son, Richard Dickey, were both
employed at the Sumner site and worked together. William
Dickey. a supervisor, was a member of the Union, a fact
known to Bill Long, ironworker superintendent. He signed
an authorization card and solicited others to sign while em-
ployed there. Richard had also signed a card.
In early June. Richard Dickey took 3 days off with per-
mission from Barfield. However, when he returned he was
given a warning for absenteeism. Thereafter, according to
Richard's testimony, he was absent one and three more
times. On July 8 their foreman, Carl Futrell, told them that
Richard was being discharged for absenteeism. William
asked to see Barfield and, although Futrell told him it
would do no good, they went and spoke with Barfield. Wil-
liam Dickey recalled that Barfield admitted that he had let
Richard have 3 days off and that there were employees with
worse records than Richard. However, he insisted that they
had to let Richard go. William told Barfield that his son
was being punished because of him, a statement that "was
. . agreed with." According to Richard they were told that
the orders for his discharge had come from Greenville, and
no one on the job could prevent it.
William Dickey threatened to quit because of his son's
discharge and left the site with Richard, undecided over
what to do. He did not report for work the next day, but
called in. That night. he testified, he was called by Barfield
who asked him what he intended to do. He told Barfield
that he was returning to work. William Dickey testified that
Barfield told him that he had orders from Jesse Sellers to
fire him for whatever reason came up and that they had
fired his son in the expectation that William would quit
when Richard was fired. William Dickey did not go to work
the next day, and that night received another call from Bar-
field. Barfield told William that they weren't going to fire
him unless they got further orders, that the Labor Board
had ruled and there was not going to be any election. Wil-
liam returned to work the following day. Sometime after he
returned, he spoke to Barfield and Sellers about having
Richard hired back. Sellers, he said, told him that they be-
lieved they could do so, "whenever they got through check-
ing out this union stuff." William told them that Richard
had never belonged to a union, but that he was 100 percent
union. He told them that they got the wrong man.
Richard Dickey testified that he called Barfield on two or
three occasions after his discharge seeking reinstatement. In
late July Barfield told him to "Give me a couple of weeks
because of all this union mess going on, let it clear up a
little bit, and he felt sure that I could come back to work."
On August I Richard Dickey was rehired, as a welder, by
Curtis Whisennant. At that time, he told Whisennant that
he had to work days because he was attending a welding
school at night. Whisennant assured him of a day shift job.
On the following day, having heard a rumor of a possible
transfer to the second shift, he again spoke to Whisennant.
He told Whisennant that if he were transferred, his school-
ing and transportation problems would force him a quit.
About the third day of his employment, Whisennant told
him that he had to be transferred to the second shift. Rich-
ard then sought a transfer to a rigging crew on the day shift.
His transfer was approved by the rigging foreman, Swin-
dler, the general foreman, Swanger, and by Terry Bishop,
ironworker assistant superintendent. He was put to work as
a rigger. After he started to work, Whisennant came and
told him that he could not be transferred. They went to see
Bishop who asked why Richard could not be transferred.
Whisennant said that they had orders from the welding su-
perintendent to put him on the second shift. Bishop and
Richard went to see Bob Alley, welding superintendent,
and Bishop repeated his question to Alley. Alley stated that
they had orders to fire Richard and not to transfer him.
Bishop then went to speak with construction manager Gra-
vat. When he returned he told Richard that there was noth-
ing he could do, that the orders to fire him had come from
higher authority in Greenville. Rather than take a discharge
Richard quit. On August 14 William Dickey also quit, be-
cause of the treatment accorded his son and because he
feared that he, too, would be discharged.
715
I)E('ISIONS OF NATIONAL. LABOR RELATIONS BOARD
Sellers and Barfield denied the statements attributed to
them by William and Richard Dickey and denied engaging
in essentially all of the conversations. No evidence of' Rich-
ard's absenteeism, other than Barfield's testimony, was in-
troduced. Whisennant, moreover. corroborated I)ickey's
testimony concerning Richard's second termination and
testified to orders he had received to get rid of a young man
named [)ickey whose union activity had been overlooked in
hiring. The employee, he testified, was eliminated by assign-
ing him to a shift upon which he could not work. Bishop
did not testify in regard to the Dickeys. Alley. Swanger,
Swindler, and Gravat did not testify at all. Considering all
of the foregoing, and their comparative demeanors, I credit
the testimony of William and Richard Dickey and Curtis
Whisennant.
Olin White was neither a union member nor an authori-
zation card signer. lie worked at Sumner as a miscellaneous
ironworker from the first of May until July 8. He had been
in Fred Wicker's crew but was working under Foreman
Donald Baker since shortly before his discharge. When he
had been approached to sign a card, he asked Wicker what
he should do: Wicker told him to make up his own mind.
He had also been questioned by Gary Pace in regard to his
knowledge of union activity and card signing.
On the morning of July 8, White was discharged, alleg-
edly for leaving his work station on the wall prior to the
start of the lunch perod. Fred Wicker, who had been rein-
stated from his own disloyalty" discharge several days ear-
lier, testified that on that morning. Barfield told him to fire
White because White was involved with the Union. Wicker
assured Barfield that White was not so involved. Barfield
insisted, saying that the orders had come from personnel.
Wicker refused to do it. Barfield suggested that he talk with
Baker and his leadman, Bigham. Wicker did so and Baker
agreed to discharge White. Initially they considered dis-
charging White for a safety violation, but observation of
White showed him to be in full compliance with all safety
requirements. Baker then stated that he would discharge
White for leaving before the I a.m. dinner break.
Shortly thereafter Wicker warned White that he was
going to be discharged for coming off the wall too early.
White stated that he would be careful to remain on the wall
until after I a.m., but Wicker told him it would not help.
According to both Wicker and White, no II o'clock whistle
blew: White waited about 7 minutes after the others had
left the wall and then came down. Notwithstanding that he
had not left the wall early, Baker was waiting and dis-
charged him. White's termination appraisal, signed by Ba-
ker, rated White as doing "more than expected" in all job
performance factors and recommended him for rehire.
Following the discharge, according to Wicker and White,
they got together and Wicker suggested that White take his
discharge to the Labor Board. They contacted and met with
Donald Baker to see if he would support White's charge. In
their meeting Baker refused to help them but confirmed
that White had been discharged because of Respondent's
belief that he had engaged in union activity.
On the next day Wicker was taken to Project Manager
Crowder's office by Terry Bishop. He met with, Crowder.
Jesse Sellers, and others. Sellers told Wicker that he had
heard that Wicker had been messing around with White.
Wicker protested that it was none of their business whom
he associated with. Sellers made a reference to Wicker's call
to Baker and told Wicker that they were not going to toler-
ate anymore union activity, that "If we hear anymore of it,
somebody's going."
Baker and Barfield directly controverted Wicker's testi-
mony. Barfield denied that there was any advance decision
to discharge White. and he denied telling anyone to dis-
charge White. Baker, who like Wicker had been discharged
for disloyality and then reinstated, testified that he had
been warned by his superintendent, Sellers, to correct a
problem of the employees leaving their work stations prior
to the dinner whistle, that he had warned all of his men
about this several times, and that on the day of White's
discharge, he made a point to watch when his men left the
wall, intending to make an example of anyone who left
early. He stated that he got to the ladder 15 or 20 minutes
before the dinner period and, as soon as he got there, saw
White descending. He waited to make sure that White was
not on some legitimate mission, saw him go to his lunch
box, and discharged him. Baker said that the problem with
White's early lunches had been no greater than with the
other employees, but on this day, only White left early.
Baker further testified that about a week later he met with
Wicker and White. Wicker asked him to go to the l.abor
Board and testify that he had discharged White for union
activities. He refused and denied having done so.
Although Crowder, Sellers, and Bishop all testified in Re-
spondent's behalf. Wicker's testimony of the meeting in
Crowder's office following his conversation with Baker is
uncontroverted. Other than this evidence, the testimony
concerning White's discharge stands in diametric opposi-
tion. Baker was a firm and forceful witness; so too was
Barfield, at least in regard to this area of testimony. I was
less impressed by White's recollective abilities. Wicker. I
find, harbored some animosity toward Daniel arising from
its refusal to pay him backpay for the period prior to his
reinstatement and from his subsequent termination. How-
ever. Baker's testimony must also be considered in light of
his recent (at the time of White's discharge) reinstatement
and continued employment by Respondent. Considering all
of the foregoing, noting that White had not engaged in any
union activity, and deeming it improbable both that Bar-
field would have asked Wicker to discharge an employee
who was working on someone else's crew and that the din-
ner whistle would fortuitously fail on the day chosen to
discharge White, I credit the testimony of Baker as corrobo-
rated by Barfield.
John Javnes was an ironworker on Gene Cassidy's rigging
crew. He was a union member and his union affiliation was
known to both Cassidy and his general foreman. Ralph
Eldreth.
As previously discussed, Jaynes had been questioned
about the card solicitations around the beginning of June.
On Tuesday, July 13, Jaynes had another conversation
about the Union, this time Cassidy spoke to him, with Eld-
reth present. According to Jaynes. Cassidy told him, "that
he had gotten the word that there were still union members
on that job. and they were to be gotten off of there by that
Friday," . . . that he was told to "tail them. find anything
wrong with them, breaking the safety rules, wrong with
their work, and fire them." Cassidy told Jaynes that he did
716
DANIEL CONSTRUCTION COMPANY
not want to fire Jaynes, that he was satisfied with Jaynes'
work, and that no one had complained about his work since
he had been there. Jaynes told Cassidy that he would make
his decision that night and might not come back.
When Jaynes left work that night, he decided that he
would save himself the embarrassment of a discharge and
not return. He did not ieturn until a week later, when he
picked up his pay and his termination record. That record
reflects that he was terminated July 14, for "Failure to Do
Assigned Duties."
Cassidy denied making the statements attributed to him
by Jaynes. He testified that Jaynes had a habit of wander-
ing away from his work area and that he had complaints
from other foreman that Jaynes was not around when
needed. I-e had mentioned these derelictions to Roger Ben-
ton, the ironworker superintendent, when Benton had
asked for a recommendation on Jaynes about 2 weeks be-
fore Jaynes' discharge. Benton did not direct that Jaynes be
discharged upon receipt of Cassidy's recommendations,
only that Cassidy discharge him if he caught Jaynes in simi-
lar misconduct. Cassidy did not discharge Jaynes: neither
was he involved in that discharge. He corroborated Jaynes'
testimony that Jaynes left the site and never returned.
Ralph Eldreth, Jaynes' general foreman, also testified
about complaints concerning Jaynes. However, he did not
discuss Jaynes' alleged shortcomings with Benton. Eldreth
did not make the decision to discharge Jaynes and was not
familiar with any of the events surrounding Jaynes' termi-
nation. Benton told Eldreth to discharge Jaynes for failure
to perform assigned duties and that is what Eldreth wrote
on the termination form. Eldreth did not know whether
Jaynes was at work on the night of his discharge. Eldreth
neither affirmed nor denied being present at a conversation
between Jaynes and Cassidy on July 13.
Considering the foregoing testimony, the demeanor of
the witnesses, the absence of Benton as a witness on Re-
spondent's behalf, and the failure of Eldreth to deny his
presence at, or the contents of. the alleged conversation be-
tween Jaynes and Cassidy, I credit Jaynes.
J. Alleged Refusals To Hire
Joe C. Lamb, a long-time member of Local 413. made
application for employment as a welder on June 2. He filled
out an application and was interviewed inside the gate. The
interviewer, whom he could describe but not otherwise
identify asked him about his work qualifications. Lamb
stated that he had worked in "organized labor" for about
12 years and named 2 or 3 of his employers. The inter-
viewer asked him if he would be interested in "dropping his
book" if he went to work for them and whether he would
agree not to talk about organized labor on the job. Lamb
stated that he could agree to the latter but not the former
condition. Lamb was told that they would contact him. He
received no call.
Around the first of August, upon information from the
State unemployment office that Daniel might be hiring
again at Sumner, Lamb returned to the site. He filled out an
application, which named some of his former employers.
and was again told that they would get back to him.
Respondent presented no witnesses in regard to Lamb's
testimony. It was asserted that no applications from I.amb
could be found.
Kenneth Earls is the brother of Johnny arls. one of the
supervisors whom Respondent discharged for engaging in
union activity. Unlike his brother. Kenneth Earls was not a
union member. In mid-June. Kenneth Earls applied for a
rod buster position at the Sumner site. Ile gave his com-
pleted application to the timekeeper. observed the time-
keeper look at a piece of paper, and was then told that
Respondent was not hiring rod busters at that time.
On the following weekend Kenneth Earls called Bobby
Pugh, a rod buster superintendent with whom he was famil-
iar, and told Pugh that he had unsuccessfully applied for
work at the site. Pugh told Earls, "The reason that h feli
that they didn't hire me was on account of they had a list
with my brother's name on there: and I was Earls and the3
must have felt that I had something to do with the Union
... that he would have hired me if he could hase but the!
had that list, and they felt that I had something to do swith
the Union, and so they didn't hire me." Pugh told Earls that
the list named people who had something to do with the
Union. He also told Earls that they needed men and were
hiring.',
Kenneth Earls had worked for [)Daniel on a numbiher of
occasions. The last time was in 1975. at the Sumner sitc. His
last period of employment was brief. |!arls quit after less
than 2 days to take a job closer to homne. His termination
was for failure to perform assigned duties.1'
Charles IfllTwiler was a Jiurllne ytaltl I -oWnl-ker ailnd
union member. On October 8 or 9. with Stew;ard ( 'haidsell
his brother-in-law. Huffstetler applied for work at Sumner.
They were told that applications were not hbeing taken.
They returned on Monday ()October I. when applications
were being accepted. The completed and submitted theirs
Huffstetler's application listed unionized l ohs as his refer-
ences. They were questioned hb Hill Burns and told him
that they had tools. that luffstetler had experience in var-
ious kinds of iron, orker jobs. and that ('hadwell had no
experience. Chadwell was offered a job at $4 per hour w:th
an opportunity to go to school at night for which he would
receive an additional $.25 per hour. lie declined the job. No
job was offered to Hluflftetler.
Frank Walker testified that Respondent hires helpers and
that the helpers have an option of going to night school for
which they receive a further incentive payment. The rate of
pay and the schooling opportunity offered Chadwell indi-
cated that he had been offered a helper's position.
Respondent's labor turnover report for October estab-
lished that 104 reinforcing ironworkers were hired in that
month; the complement increased from 247 to 329. An ad-
ditional 57 structural ironworkers were hired, raising the
complement, after attrition, from 256 to 275. The report
does not establish when in October the employees were
hired.
l Pugh. whose supervisory status was admitted. did nl lesill) rhus,
Kenneth Earls' credibly offered eslinlon) stnd, unconlradcted
l? In its brief. Respondent speculated that Kennelh Earl, w as denied em
ployment because of the nature of his prior terminalion No elence w:as
adduced in support of this argument
717
I)E('ISIONS OF NATIONAL I.ABOR RLAI IONS BOARD
V. ANALYSIS ANt) ('ON( .t!Sl(NS
A. (a)(l) I ioltions
I. Inerrogation the General C('ounsel has contended
that Respondent's systematic questioning of its ironworker
employees, ostensibly to determine the extent of supervi-
sory participation in the organizational campaign, failed to
comply with established Board guidelines and constituted
unlawfully coercive interrogation. I agree. Based upon the
facts set forth supra, and noting, inter alia, that White's
testimony stands undenied, I find that in at least some of
the interviews, Respondent failed to inform the employees
of the purpose for its questions, or failed to confine its ques-
tions to the involvement of supervisors in the organizational
activities. Moreover, Respondent's printed questions went
too far, asking the employees whether they had a signed a
card. I note further that, according to the testimony of both
Crowder and Johnson, the questioning occurred in the con-
text of hostility to union activities. began prior to the filing
of the representation petition and continued long fter the
union activists among the supervisors were discovered and
discharged. Thus. while Respondent may have had some
legitimate purpose in card solicitations inquiry, arising out
of the supervisory participation in card solicitations and the
filing of the petition, I find that it went beyond the permis-
sible scope of such an inquiry. Accordingly. I find that by
this coercive interrogation, Respondent has violated Section
8(a)(1) of the Act. P. B. and S. (hemical ('oripan'r, 224
NLRB I (1976); Johmnie's Poullr (o. and John Bishop1
Poultrv Co., Successor, 146 NI.RB 770 (1974). See also Re-
tired Persons Pharm,,ac. I/ N R7TA-AA RP Pharniaci', 210
NLRB 443 (1974), enfd. 519 F.2d 486 (2d (ir. 1975). and
N.L.R.B. v. Camco, Inc., 340 F1.2d 803 (5th Cir. 1965).
I further find that when Foreman Gene ('assidy asked
Derrell Rice whether he was still a member of the Charles-
ton local, Respondent coercively interrogated Darrell Rice,
in violation of Section 8(a)( I). Similarly, I find, Respondent
must be held responsible for its interviewer's question and
statements to Joe Lamb, asking him whether he would drop
his "book" and agree not to talk union on the job. While
Lamb could not name that interviewer, it is clear from the
record in this case that those who interview job applicants
at Respondent's gate are clothed with apparent authority to
speak for Respondent. Moreover, few circumstances could
render interrogation and other antiunion statements more
coercive than that of the employment interview, when the
prospective employee approaches as a supplicant.
2. Threats--The credited evidence, much of which was
undenied, established that on a number of occasions Re-
spondent's agents told employees or prospective employees
that the union activities were or would be the cause of dis-
charges or refusals to hire. Such statements clearly consti-
tute threats to the employees' job security in the event that
they engage in union activity, and coerce employees in the
exercise of their Section 7 rights. Thus, I find that by the
following conduct, Respondent has violated Section 8(a)( I)
of the Act: Adkins' statement to Peterson and Whitson that
the whole crew was going to be laid off because of union
problems; Raines statement to Collins when Collins applied
for employment that Collins would have to wait until the
situation was straightened out at Sumner and that he could
not start work immediately because they had to check him
out: the statement overheard by Jake Kluttz at the time ot'
his termination referring to Kluttz as a union ringleader
who had to be removed from the site: Jesse Sellers' state-
ment at the safety ironworkers and predicted that more
would be terminated subsequently flr the same reason:
Foreman Hick's statement to Porter that the Union, not a
safety violation, was the real reason for his discharge: Har-
ris' implication to Queen that there was another reason for
his discharge, that reason being union activities Bvce's
similar statement to Smith Byce's statement to his crew to
the effect that if the job went union, all nonunion employ-
ees would be terminated; Barfield's statement to Richard
Dickey that his reemployment would have to wait until the
"union mess" was cleared up: Cassidy's statement to Jaynes
that there were still union men on the job and that supervi-
sion had orders to find excuses to discharge them: and.
Pugh's statement to Kenneth Earls. infi)rming him that he
was not being hired because of a suspicion that he was
tainted by his brother's union activity.
3. Requested urreillacme It Was undenied that GarN
Pace sought from Curley Peterson it promise that P'eterson
would report any union activities he observed if he was
rehired. Such conduct is clearly unlawful. As the lighth
Circuit observed in .I..R.B. v. oli.iiml Iatllotctltitg
(Colmpal', 374 F.2d 696. 7(}0 701 (8th ('ir. 1967). when an
employee is asked to report other employees' union activi-
ties to management. he "mla naturally assume that for an
employer to go to such lengths. some punishment must be
in store fr union supporters ... ('onsequently he will not
feel free to make his own union sentiments known to other
employees. even in confidence, nor will he freely enter or-
ganizations of' other employees for fear that one or more
fellow employees will be flllowing the wishes of their em-
ployer by spying upon and reporting his union activity.''
See also /IiY''er (Co. N. I..R.B.. 480 F.2d 1081 (5th ('ir.
1973). enforcing in part lhter Conlouiv, 198 NlRB 192
(1972).
4. Kerr'~ 7rans/.ir to the NighrI Shill The General Coun-
sel contended that Kerr's transfer to the night shift in late
May was intended to force him to quit because of his union
activities. I agree. There is evidence in Whisennant's testi-
mony and in the case of Richard I)ickey that Respondent
utilized such a technique to terminate those employees it
deemed undesirable. Additionally. General Foreman Hack-
ard's statement to Kerr, that he still had a job if he wanted
it, but on the third shift, is some evidence that Hackard
expected him to quit when forced to transfer. And. no ex-
planation was offered for the transfer or for the selection of'
Kerr and the one other employee similarly transferred.
These factors, when considered in light of the other dis-
charges for union activity, albeit of supervisors, occuring at
that time, and Respondent's clear union animus, lead me to
conclude that this was an attempt to force Kerr to quit
because of his union activities, in violation of Section
8(a)(I) of the Act.
5. The Discharge of Supervisors -The evidence, sulpro. es-
tablishes that all of the supervisors whom Respondent dis-
charged fir engaging in union activity. except Michael
Johnson. had engaged in such activity. Their involvement
was in varying degrees, from the actual leadership of the
718
I)ANIEL CONSI RU('TION COMPANY
campaign (ucker and Steen), to solicitations of employees
to sign authorization cards (Earls and William )ickey ). to
the mere signing of an authorization card while occupying a
supervisory positi'n (McCarver, Wicker. McCutcheon.
Grant, Allen Haga, and Daniel llaga).
Respondent contended that there can be no finding of an
unfair labor practice upon the discharge of a supervisor fior
that supervisor's union activities. In the circumstances of
this case, I agree.
The basic proposition governing this aspect of the case is
that the protection of the Act runs only to employees not
supervisors, and a discharge of a supervisor for engaging in
union activities does not violated the Act. 71e Mousetrap of
Miami, In.. Rcea Molorle' , l Mousetrap, 174 NLRB 106()0
(1969). It is only in certain limited circumstances, where the
discharge of a supervisor interferes with employee rights.
that such a discharge becomes unlawful. Such cases include
the refusal of a supervisor to commit an unfallir labor prac-
tice. Tallad/ega Cotton Factory. Inc.. 106 N.RB 295 (1953).
enfd. 213 F.2d 208 (5th Cir. 1954). adverse testimony in a
Board proceeding by a supervisor. Better Monkel (Grip
Company, 115 NLRB 1170 (1956). enfd. 243 F.2d 836 (5th
Cir. 1957). or a supervisor's interference with his employees'
unlawful scheme as by revealing to an employee the em-
ployer's plan to discriminatorily discharge him. Buddties Si
per Markets, 223 NLRB 950 (1976). On the other hand. the
Board has held that the discharge of a supers isor for refus-
ing to adequately support his employer's antiunion cam-
paign, where the supervisor was not required to engage in
any unlawful activity, does not violate the Act. See (We.stlrn
Sample Book and Printing Co.. In.. 209 NI.RB 384 (1974).
In that case, three supervisors were discharged because the
failed to report on the union activities of the emploees
whom they supervised, conduct regarded by the employer
as displaying union sympathies and disloyalty.
The General C('ounsel points out that all of the supervi-
sors involved herein had a close bond with the journeyimen
ironworkers because of the nature of the construction in-
dustry, wherein, as here, individuals shift from journey man
to supervisor between jobs and while working on a single
job. They were, nonetheless, statutory supervisors and gen-
erally outside the ambit of the Act's protection. He further
argues that in view of Respondent's numerous other unfair
labor practices, "the firing of supervisors for union activities
or for prounion feelings was an integral part of a pattern of
conduct aimed at penalizing employees for their union ac-
tivities," in violation of Section 8(a)( I ). The cases cited by
the General Counsel in support of this broad proposition
are, I believe, inapposite. Thus, in Donelson Packing ('o..
Inc., and Regal Provision Companyv. 220 NLRB 1043 (1975),
while the Board used the language quoted above, it was
pointed out that the supervisor's discharge "was caused at
least in part by [his] attempt to procure" the reinstatement
of an employee unlawfully laid off. Similarly, in Ke W'st
Coca Cola Bottling Company, 140 NLRB 1359 (1963). the
supervisor's discharge was occasioned by his failure to co-
operate with the employer's unlawful scheme to discharge
employees for their union activities. In the instant case.
there is no probative evidence that any of the supervisors
were discharged for such a reason. General Counsel further
cited Fairview Nursing Home, 202 NLRB 318 (1973). In
that case, however, as was pointed out b Board Member
Penello. the discharges were not motivated b the prounion
activities of the supervisors. Respondent was not even
aware f the supervisors' card signing at the time that it
simultaneousl discharged the supervisors and the employ-
ecs.
The General Counsel further argued that, in the cases of
Michael Johnson and Michael Grant. their discharges were
in violation of Section 8(a)( I because they were discharged
in conjunction with their respective crews. In support
thereto. Pioneer Drilling (o. Inc.. 162 NLRB 918 (1967).
enfd. 391 .2d 961 (10th (ir. 1968). and rch.s and King
io ta. I, a.. 197 NLRB 462 1972). were cited. In Pioneer.
howesler, the discharges were found unlawful because the
supervisors had been terminaled as a means of eliminating
the crews on which the union activit\ was centered. Neither
Johnson nor Grant were terminated in order to justify the
elimination of their crews. Neither were the5 terminated
because their department or crews were eliminated, as was
essentiall\ the situation in Krehv ianld King. The, were dis-
charged because of Respondent's belief that they had per-
sonally engaged in union activit 3. Moreover. I note that
while the complaint alleges that the members of Johnson's
crew were discriminatorill laid off, the members of (irant's
crew were not so named.
Michtel Johnson's situation is. however. distinguishable
from that of Grant and the other supervisors. T'he evidence
which I have credited establishes that Johnson engaged in
no union activ ity subsequent to his assumption of a supervi-
sory position. His union activit occurred while he was still
an employee and under the Act's protectilon. hat protec-
tion must continue after he becomes a supervisor or it is
rendered nugatory. Moreover. it could not help, but dis-
courage emploNee union acti itI to observe retribution
being i,,sited upon a super,sor for the protected activity
engaged in while all emplo,! e. particularly where. as here.
employ ees moe freely and frequently from rank and file
jobs to supervisory positions.
Accordingl, I find that the discharge of Michael John-
son violated Section 8(a)(1) of the Act. I further find that
the General Counsel has not established that the discharges
of the other supervisors alleged in the complaint violated
the Act.
B. Tlle 8(a)(3) I iolations
I The alleged reduction in force
As discussed above, the complaint alleged that seven em-
ployees terminated in an alleged reduction in force were
actually terminated because of their union activity. he evi-
dence. I find, supports this contention.
In reaching this conclusion I have relied upon eidence
with which the record was replete that Respondent bore
substantial animus toward the organizational activities of
its employees. I note also that each of these employees had
engaged in union acti ity. That activity was either shown to
be known to specific supervisors, or the knowledge thereof
was evidenced by the inclusion of the employees' names
upon the list shown Tice Randolph. .\dditionally, undenied
testimony established that supervisors such as I)ean Bent-
ley, made statements indicating that Respondent had the
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names of all the employees who had signed authorization
cards.
Additionally, the record contains uncontradicted or oth-
erwise credited evidence of supervisors admitting Respon-
dent's unlawful motive. Thus, there is Adkins' statement to
Peterson and Whitson that the crew was being laid off be-
cause of "union problems," Sellers' statement at the satety
meeting to the effect that the absence of some employees
was the result of the union activity and that more termina-
tions would follow for the same reason, Rankin's statement
to Tice Randolph, the list of those terminated at Sumner for
union activities shown to Randolph by Rankin. the state-
ment heard by Kluttz upon his termination. Pace's at-
tempted extraction of a commitment from Peterson to re-
port union activities after he was hired back, and Raines
statement to Collins to the effect that Respondent was not
hiring until they got matters straightened out.
Respondent contended that the June layoff was necessi-
tated by a lack of work and poor productivity in June. Even
assuming that it were, the evidence establishes that Respon-
dent, in laying off an entire crew rather than cutting out the
least desirable workers, failed to follow its customary prac-
tice. Moreover, the evidence fails to support a contention of
economic necessity. The layoffs occurred in early June, be-
fore the June productivity could have been known. and the
employer had deemed the months of April and May to
have been "highly productive" in the turbine area. When
the June productivity reports became available, and pro-
ductivity was shown to be down for the entire month of
June, no additional layoffs were undertaken. Neither were
there any additional layoffs in July. although productivity
decreased even further. Indeed, while there was a decrease
in the number of rebar ironworkers in June, the rebar iron-
worker complement was increased in July to approximately
the same number as had been employed as of May 31, and
it remained constant throughout August and September. In
order to maintain this complement against normal attrition,
there was substantial hiring. There had also been some hir-
ing of ironworkers in June, although the laid off employees
who applied were unsuccessful in securing reinstatement in
that month. Finally, in this regard, I note the credited testi-
mony of employees who observed that there was work to be
performed at the locations from which they were laid off
and elsewhere on the project.
Accordingly, I find that Respondent's claim of economic
necessity was a pretext and that it laid off or otherwise
terminated Curley Peterson. Max Whitson, Clyde Coggins.
Marvin Kirk, Roy Collins, Tommy Johnson, and Jake
Kluttz because of their union activity, in violation of Sec-
tion 8(a)(3) of the Act.' 8
2. Discharges for alleged safety infractions
Similarly, I find, as contended by the General Counsel,
that Respondent's reliance upon alleged violations of its
safety rules to justify the discharges of seven employees was
pretextual.
In so concluding I have relied in part upon the testimony
of Curtis Whisennant, who was told that one of the ways to
1s That Respondent's asserted reasons for these and subsequent discharges
were false is additional evidence that the undisclosed reasons were unlawful.
Sinclair Valentine Company, 223 NLRB 1043 (1976).
terminate union adherents was to find them in violation of
safety rules, and upon the union animus abundant in this
record. I have also relied upon the specific discharge inci-
dents, each of which helps to color the others, and which.
by their very nature. evidence the pretextuality. 9
Gerald Kerr was discharged on June I , allegedly for
wearing his hard hat backwards. Hard hats were commonly
worn in this manner by ironworkers and Respondent, while
necessarily aware of this, did not deem this practice to be a
serious safety violation or a dischargeable offense. Signifi-
cantly, Kerr was discharged upon this trivial ground on the
same day that Respondent took the affidavit of James Da-
vis, which stated that Kerr had solicited him to sign an
authorization card.
Equally trivial were the reasons assigned for the dis-
charges of Paul Vincent and William Lominac. Vincent, I
have fobund, only removed his glasses momentarily, to clean
them, and was discharged. Lominac admittedly was not
wearing his glasses, but wore total face and eye protection
in the form of a welding shield. Respondent's safety engi-
neer admitted that safety glass infractions were not, at least
at the time of these discharges, considered dischargeable
offenses. Moreover all three of these employees were dis-
charged on the occasion of their first alleged safety viola-
tion, although it was Respondent's announced practice to
give 2 warnings prior to discharge. And. they were dis-
charged prior to Respondent's promulgation of a stricter
program (which program still provided for a warning before
discharge).
Steven Brandon admitted not wearing his safety glasses
when discharged. However, noting that this infraction was
not deemed so serious as to warrant discharge. was Bran-
don's first, occurred before the start of work, and that Bran-
don was first asked to quit or to provide another excuse to
be fired. I deem Respondent's reason here, as in the other
cases, pretextual.
Starks Porter. Kermit Roy. and Keith Queen were all
discharged on the same day for the same alleged offense,
failure to secure themselves with a safety belt while working
above ground level. Both Porter and Queen. I have found.
were told that the union activity, rather than the alleged
safety rule infraction, was the reason for their discharges.
Bishop, the assistant superintendent who directed Porter's
discharge. admitted that he would not normally discharge
an employee for a single infraction of this rule. Yet, there
was no contention that Porter had received any prior warn-
ings for this safety violation. Neither was there any contra-
diction of Porter's testimony that other employees around
him were violating the same rule at the same time, and were
not warned or disciplined. Neither Roy nor Queen had
been in violation of Respondent's rules when terminated.
Roy, like Brandon, was first asked to quit. After he refused,
he was terminated. At the time he was called down, he had
been climbing the iron and would not have been expected
to be tied off. Queen had been working inside a wall where
typing off was not required when he was called down and
discharged.
9 The same evidence establishing Respondent's knowledge of the union
activities of those employees discriminatorily terminated in the alleged re-
duction in force also establishes knowledge of the union activities of these
employees and those to be discussed subsequentl. No further repetition of
that evidence is required.
720
I)ANIEI. CONSTRUl('CION COMPANY
Based on all of( the foregoing, I conclude that Respon-
dent discharged Gerald Kerr. Paul Vincent, William l.omi-
nac. Steven Brandon. Starks Porter. Kermit Roy. and Wil-
bur Keith Queen in order to discourage union activity. in
violation of Section 8(a)(31 of the Act.
3. Other discharges
James Walker left the jobsite on May 20 for medical rea-
sons, believing that he had a commitment for employment
upon his return. The evidence, however, indicates that all
he had was a statement that he was eligible for rehire. He
admitted, moreover. that on his last day of employment he
was told that he was being terminated for excess absentee-
ism. Walker reapplied on the same day that Respondent
discriminatorily laid off a number of employees in his clas-
sification, and again a week later. On both occasions, he
testified. he was told that union problems prevented Re-
spondent from hiring rod busters. His testimony was uncon-
tradicted: however, I note that he was unable to identify
the person who made those statements. The record estab-
lishes that Respondent did not hire any rod busters at the
time James Walker made his applications and there is no
evidence to support the contention that had Respondent
not been discriminatorily discharging employees at the time
Walker sought to return, it would have offered him a job.
Indeed, a job was offered to him on June 14, albeit a labor-
er'sjob at substantially less money. Based upon this state of
the record, while I find the circumstances suspicious, I am
unable to conclude that James Walker was discharged or
denied reemployment because of his union activities.
The credited evidence establishes that after Derrell Rice
took a vacation upon the subterfuge that he had to attend a
funeral, he was discharged for excess absenteeism. This, I
find, was a cause which would have resulted in his dis-
charge, without regard to union activity. That Respondent
may have welcomed the opportunity to discharge Rice is
not sufficient to establish that the discharge was in violation
of Section 8(a)(3). P. G. Berland Paint City, Inc., 199 NLRB
927 (1972). As stated at page 928 of that Decision:
If the employee himself obliges his employer by pro-
viding a valid independent reason for discharge-i.e.,
by engaging in conduct for which he would have been
discharged anyway-his discharge cannot properly be
labeled a pretext and ruled unlawful.
Additionally, noting that I have, for the most part, not
credited Rice's testimony that his testimony concerning his
attempt to be reemployed at Sumner was not corroborated
by an ostensibly available source. and further noting the
ambiguous nature of the statement made to Rice when he
and Chandler allegedly telephoned Benton about a job, I
find that the evidence is insufficient to establish that Rice
was denied reemployment because of his union activity.
Marvin Smith's discharge, I find, was patently pretextual.
At the time of his discharge Smith was where he was sup-
posed to be, in the position he had to be in, in order to
perform the work assigned to him. Miller, the supervisor
who discharged Smith for alleged failure to perform as-
signed duties, admitted that on at least two of the three
occasions when he made the observations which he claimed
justified Smith's discharge, he could not have determined
whether Smith was working properly or not. In view otf the
pretextual nature of this discharge. Smith's union activity.
Respondent's knowledge of and animus toward such ac-
tivitN, and the testimonial absence of those who made the
decision to discharge Smith, I find that Respondent dis-
charged Marvin Smith because of his union activity in vio-
lation of Section 8(a)(3).
In regard to Richard ickey. analysis of the evidence
leads me to conclude that both his July discharge and the
August forced termination were caused by Respondent's
suspicions concerning his union activity and its desire to
force his father, William Dickey. to quit. Thus, it dis-
charged Richard Dickey in Juls for excess absenteeism. but
not at a time when he was in fact absent. Moreover, the
credited evidence reveals that at least some of his absences
were excused and his absenteeism record was no worse than
that of other employees who were not discharged. No docu-
mentarN evidence was adduced by Respondent to show
when, or how often. Richard had been absent. It must in-
ferred that had such records been produced they would not
have supported a claim of excess of absenteeism. Addition-
ally, the credited evidence includes Barfield's tacit admis-
sion that Richard was being terminated because of his fa-
ther, a statement that orders for his discharge originated in
Greenville not with his immediate supervision. and Bar-
field's statement that Richard could be rehired after the
"union mess" was cleared up. Similarly, Richard's August
termination through a forced transfer to the night shift
came about on orders from Greenville and the antiunion
motivation was established through Whisennant's credible
testimony. Accordingly, I find that Respondent discharged
Richard Dickey in July and constructively discharged him
in August in order to discourage union activity. in violation
of Section 8(a)(3).
As I have credited neither Olin White nor Fred Wicker in
regard to the circumstances of Olin White's discharge, I
find that there is insufficient evidence to support the Gen-
eral Counsel's contention that White was discharged tor
union activity.
The evidence reflects that John Jaynes left work on July
13, with the intention of quitting, in order to avoid a threat-
ened discriminatory discharge. Such a threat, I find, made
continued employment intolerable. Jayne's leaving was
therefore not voluntary. Rather, he was constructively dis-
charged. in violation of Section 8(a)(3).: ° See Tennessee
Packers, Inc., Frostv Morn Division. 143 NLRB 494 (1963),
enfd. 339 F.2d 203 (6th Cir. 1964). See also Cnrstal Prince-
ton Refining Comnpa' , 222 NLRB 1068 1976).
4. Refusals to hire
When Joe Lamb applied for work on June 2, he was
asked whether he would "drop his book" and agree not to
talk union on the job. When Kenneth Earls applied in mid-
" Alternatively. I would find hat Respondent's discharge of Jaynes on the
first day f his absence. for a reason other than ahsenteeism. upon orders of
a superintendent two levels above his immediate supervisor. without discus-
sion with either his foreman or general foreman. based at most upon a report
of dereliction received 2 weeks earlier and not acted upon at that time, at
least in the absence of some explanation by that superintendent. was pre-
textual
721
I) FC(ISIONS OF NATI()NAL LABOR RELATIONS BOARD
June he observed the timekeeper refer to a piece of paper
before telling him that no rod busters were being hired.
Neither was hired. Earls was subsequently told by Foreman
Bobby Pugh that Pugh believed that the company must
have connected Kenneth with his brother Johnny Earls.
whose name was on a list of union activists. and refused to
hire him for fear that he, like his brother. was connected to
the Union. Pugh also told him that they needed men and
were hiring. There is no evidence that Pugh was involved in
the decision not to hire Kenneth Earls or that his statement.
coercive as it was, was more than speculation on his part.
The record indicates that few ironworkers were hired in
June and none at the time of these applications. Accord-
ingly. while I have found the statements to Lamb and Earls
violative of Section 8(a)( ), and while I deem the circum-
stances suspicious, I must conclude that the evidence is not
sufficient to sustain the General Counsel's burden of prov-
ing that these applicants were denied employment because
of their union activity or their relationship to persons
known to have engaged in union activity.
On October I1, Charles Hufstetler applied for an iron-
worker job together with his brother-in-law, Chadwell. Huf-
stetler a union member, had extensive ironworker experi-
ence, and his application revealed employment at unionized
construction sites. Chadwell had no experience in the craft.
Chadwell was offered employment, but as a helper: Huf-
stetler was not offered employment.
The General Counsel contended that Huffstetler was de-
nied employment because of his union affiliation and em-
ployment history. Such a denial of employment would be
consistent with Respondent's practice as credibly testified
to by Curtis Whisennant. Further, Whisennant had identi-
fied Bill Burns as the individual from whom he received his
instructions to screen out applicants with union back-
grounds and it was Burns who interviewed Huffstetler and
Chadwell. Burns did not testify. In view of this evidence,
noting that Huffstetler was given an interview which he
probably would not have been given if ironworkers were
not being hired, (as, for example, when he earlier attempted
to apply), and noting further that Respondent sent out tele-
grams seeking rod busters on October 12 and that there was
considerable hiring in the ironworker classifications during
the month of October, I must conclude, in agreement with
the General Counsel, that Charles Huffstetler was refused
employment by Respondent because of his union affiliation
and work experience, in violation of Section 8(a)(3) of the
Act.
FURTHER CONI.USIONS OF LAW
I. By coercively interrogating employees concerning
their union activity and the union activity of other employ-
ees, by threatening employees with discharge, denial of em-
ployment opportunities or other reprisals because they or
other employees have engaged in union activities, by re-
questing employees to spy and report on the union activities
of other employees, and by transferring employees to less
desirable shifts because of their union activities in order to
force them to quit, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed them under Section 7 of the Act, thereby violat-
ing Section 8(a)(1) of the Act.
2. By discharging Michael Johnson, a supervisor, be-
cause he had engaged in union activities while still an em-
ployee, Respondent has interfered with. restrained. and co-
erced its employees in the exercise of rights guaranteed
them under Section 7 of the Act, thereby violating Section
8(a)( I ) of the Act.
3. By discharging Curley Peterson. Max Whitson. Clyde
(oggins, Marvin Kirk, Roy Collins, Tommy Johnson. Jake
Kluttz, Gerald Kerr, Paul Vincent. William Lominac. Ste-
ven Brandon, Starks Porter. Kermit Roy, Wilbur Keith
Queen, Marvin Smith, Richard Dickey. and John Jaynes
and refusing to reinstate them, and by refusing to hire
Charles Huffstetler, because of their union activities and in
order to discourage union activity, membership, and sup-
port, Respondent has discriminated against them in regard
to the hire and tenure of their employment, thereby violat-
ing Section 8(a)(3) and (1) of the Act.
4. The unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor prac-
tices not specifically found herein.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l) and (3)
of the Act, it will be recommended that Respondent be
required to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminatorily
discharged and refused to hire or reinstate Michael John-
son, Curly Peterson, Max Whitson. Clyde Coggins, Marvin
Kirk. Roy Collins, Tommy Johnson, Jake Kluttz, Gerald
Kerr, Paul Vincent, William Lominac, Steven Brandon,
Stark Porter. Kermit Roy. Wilbur Keith Queen, Marvin
Smith, Richard Dickey, John Jaynes. and Charles Huffstet-
ler., Respondent shall offer them immediate and full rein-
statement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges and shall make them whole for any losses they
may have suffered by reason of the discrimination against
them."
The General Counsel and Respondent urged that the rate
of interest to be paid on backpay be increased to 9 percent.
The Board has recently considered this question. and, while
modifying its interest formula, rejected the the General
Counsel's 9 percent argument. Accordingly. it is hereby rec-
ommended that interest on the backpay be computed in the
manner prescribed in F. W. Woolworth Company. 90 NLRB
289 (1950). and Florida Steel Corporation, 231 NLRB 651
(1977).42
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
' Record evidence indicated that work on the Sumner project was ex-
pected to continue into 1979. It is thus appropriate, in accordance with the
Board's usual practice, to leave to the compliance stage of this proceeding
any questions as to whether particular employees would have continued
working until completion or been laid off at some earlier time
" See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
722
DANIEL CONSTRUCTION COMPANY
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., Inc., 206
NLRB 298. fn. 1 (1973): Entwistle Mfg. Co.. 23 NLRB
1058. enfd. as mod fied 120 F.2d 532 (4th Cir. 1941).
In N.L.R.B. v. Gissel Packing Co.. 395 U.S. 575 (1969).
the Supreme Court (at 613-614) indicated that in "excep-
tional" cases, marked by "outrageous" and "pervasive" un-
fair labor practices, the imposition of a bargaining order.
"without need of inquiry into majority status on the basis of
cards or otherwise" might be an appropriate remedy if the
unfair labor practices were of "such a nature that their co-
ercive effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and reliable
election cannot be had, the so-called "category one" case.'3
In reliance upon the Gissel "category one" language, and
pointing to the extent of Respondent's antiunion campaign
herein, the alacrity with which Respondent acted, the "dev-
astating effect" that campaign had upon the unit employ-
ees, and Respondent's clear intent to defeat the union's or-
ganizational efforts through unfair labor practices and
resultant delay, the General Counsel argued for the imposi-
tion of a bargaining order herein without regard to any
question of the Union's majority status.
The General Counsel's argument is not without some ap-
peal. Respondent's unfair labor practices were, indeed, out-
rageous and pervasive. See The Loray Corporation, 184
NLRB 557 (1970). Those unfair labor practices. in conjunc-
tion with the timing of the Union's campaign and the
scheduled completion of the project, could effectively pre-
vent the employees' desires from ever being tested in an
NLRB election. Nonetheless, I believe, the employees' de-
sires and rights cannot be totally disregarded. In the instant
case, because the Union relied upon supervisors to conduct
its organizational campaign, the record is totally barren of
probative evidence of employee support for the Union.
Thus, while the imposition of a bargaining order might
serve as an effective deterrent for this or other employers
inclined to engage in such gross misconduct, it would to-
tally disregard the rights of the employees to be consulted
upon the question of representation."
Neither the briefs of the parties herein nor independent
research revealed any cases wherein the Board has applied
the Gissel "category one" language to a situation wherein
the Union never achieved majority status and ordered bar-
gaining.
In J. P. Stevens & Co., 179 NLRB 254 (1969), enfd. 441
F.2d 514 (5th Cir. 1971), cited by General Counsel, the
Board specifically found that the Union had attained ma-
jority status which was then dissipated by the employer's
unfair labor practices. Subsequently, in The Lorav Corpora-
tion, supra, a situation remarkably like the instant case, the
4J No such case was before the Court at that time however. The Court
limited its holding to approval of the Board's use of a bargaining order in
less extraordinary cases, marked by less pervasive practices which still
tended to undermine the Union's majority strength and impede the election
processes. In such "category two" cases proof of majority status was still a
prerequisite for the issuance of a bargaining order.
" This is not to say that a bargaining order might not be appropriate were
some substantial portion of the employee complement to have validly signi-
fied their choice for representation when their organizational activities were
cut short prior to the acquisition of majority status. That difficult question
must await resolution. See Herbert Halperin Distributing Corporation, 228
NLRB 239 (1977).
Board was faced with this precise question. Agreeing with
the trial examiner's conclusion that the employer's conduct
had been "outrageous" and "pervasive." it held nonetheless
that a bargaining order was not appropriate because there
had been no proof of the union's majority status. See also
Grismac Corporation, 205 NLRB 1108 (1973); GTE 4Auto-
matic Electric Inc., 196 NLRB 902 (1972).
While not granting a bargaining order in Lorav. the
Board did fashion additional remedial measures designed to
deal with the extraordinary situation presented there. I be-
lieve that some of those remedial measures are equally nec-
essary herein to dissipate the effects of Respondent's fla-
grant unfair labor practices and to assure that each
employee is aware that he may exercise his statutory rights
freely. Thus, in addition to the remedial measures set forth
above, it is recommended that Respondent be required to:
(a) have the attached "Notice to EmploNees" signed by Re-
spondent's chief officer or agent at the Sumner site to
counter the effect of unfair labor practices which had been
ordered by high level supervision; (b) post that notice at the
Sumner site: (c) mail that notice to the home address of all
those who were or had been employed at Respondent's
Sumner site since May 1, 1976, so that all employees.
whether still employed, terminated or on layoff, vacation or
sick leave, may read that Notice in noncoercive surround-
ings: (d) upon the request of the Union made within I
month of this Decision, grant the Union and its representa-
tives reasonable access to its bulletin boards and all places
where notices to employees are customarily posted, for a
period of 3 months; (e) and, supply the Union, upon re-
quest made within I year. with the names and addresses of
its current employees. so that the Union may communicate
with these employees, whose names and addresses it would
be unlikely to know because of the high turnover and wide
dispersion of the work force, in an atmosphere relatively
free of restrain and coercion. These measures are required. I
believe, as Respondent endeavored to totally eliminate the
Union's presence from its site, and to prevent its return.
As it appears that Respondent may have made it impos-
sible for the Union to obtain designations from 30 percent
of the employees necessary to support a petition for an elec-
tion in which employees may have an opportunity to ex-
press their free choice, it is recommended that upon a peti-
tion by the Union filed not more than 30 days following
compliance's herewith by Respondent, the Board conduct
an election among Respondent's ironworkers at the Sumner
site, a unit appropriate for collective bargaining." without
requiring such a showing of interest.
Additionally, as the evidence established that Respon-
dent made efforts to prevent the hiring at other Daniel's
sites of those discriminatorily discharged at Sumner. I shall
recommend that Respondent be required to post the at-
tached notice at each of its construction sites in the United
States so that the employees at those locations and their
." The record, I find. establishes that these employees are a homogeneous
group with a readily identifiable separate community of interest. The Sum-
ner site is physically separated from the Fairfield project. There is separate
supervision, independent hiring and termination. separate seniority lists and
different policies in regard to the application of seniority. at least for layoff
purposes, separate payrolls, different designations for the emploees, and
little, if an), interchange. They do. therefore. constitute an appropriate unit
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors will be made aware of employee rights under
the Act.
The Union sought, by way of further extraordinary rem-
edies, that it be awarded litigation and organizational ex-
penses, pursuant to the Board's Decision in Tiidee Products,
Inc., 194 NLRB 1234 1972). However, while I have found
Respondent's conduct herein to have been egregious, sub-
stantial portions of its defense were either debatable or
meritorious. Therefore, it cannot be said that Respondent
forced the Board and the Union into frivolous litigation,
such as might warrant the imposition of costs. Heck's, Inc..
215 NLRB 765 (1974). Accordingly, this requested remedy
is rejected.
Upon the basis of the entire record, the findings of fact.
and the conclusions of law, and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
ORDER
The Respondent, Daniel Construction Company. A Divi-
sion of Daniel International Corporation, Jenkinsville,
South Carolina, its officers. agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activity and the union activity of other employees.
(b) Threatening employees with discharge. denial of em-
ployment opportunities, or other reprisals because they or
other employees have engaged in union activities.
(c) Requesting employees to spy and report on the union
activities of other employees.
(d) Transferring employees to less desirable shifts be-
cause of their union activities.
(e) Discharging supervisors for union activity engaged in
while still employees.
(f) Dis-ouraging membership in or activities on behalf of
International Association of Bridge. Structural and Orna-
mental Ironworkers, Local 413, AFL-CIO. or any other
union by discharging or refusing to hire or reinstate, or
otherwise discriminating against employees in any manner
with regard to their rates of pay, wages, hours of employ-
ment, hire, tenure or employment or any term or condition
of employment.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Michael Johnson, Curley Peterson. Max Whit-
son. Clyde Coggins, Marvin Kirk. Roy Collins. Tommy
Johnson, Jake Kluttz. Gerald Kerr. Paul Vincent, William
,6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
Lominac. Steven Brandon, Starks Porter, Kermit Roy, Wil-
bur Keith Queen, Marvin Smith, Richard Dickey, and John
Jaynes immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiv-
alent positions, and offer Charles Huffstetler a job as an
ironworker. without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the discrimi-
nation against them, in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, master schedules and other produc-
tion scheduling documents, and all other documents neces-
sary and relevant to analyze and compute the amount of
backpay due under this Order.
(c) Post at its Sumner site, and all other construction
sites within the continental United States, copies of the at-
tached notice marked "Appendix." 47 Copies of said notice
on forms provided by the Regional Director for Region 11.
after being duly signed by Respondent's chief officer or
agent at its Sumner site, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Mail copies of the attached notice marked "Appen-
dix" to all those employees who have been or were em-
ployed at the Sumner site since May 1, 1976.
(e) Upon request of the Union, made within one month
of this Decision's issuance, immediately grant the Union
and its representatives reasonable access to its bulletin
boards and all places where notices to employees are cus-
tomarily posted for a 3 month period.
(f) Upon request of the Union, made within one year of
this Decision's issuance, make available to the Union a list
of names and addresses of all ironworker employees cur-
rently employed.
(g) Notify the Regional Director for Region II11, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURIHER RECOMMENDED that the complaint be dis-
missed in all other respects.
14 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, an administrative law judge of the National La-
bor Relations Board has found that we violated the Na-
724
DANIEL CONSTRUCTION COMPANY
tional Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things except to
the extent that membership in a union may be re-
quired pursuant to a lawful union-security clause.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights.
WE WILL NOT discharge, refuse to hire, or otherwise
discriminate against any employee for supporting In-
ternational Association of Bridge, Structural and Or-
namental Ironworkers, Local Union 413. AFL-CIO,
or any other union.
WE WIll NOT coercively interrogate employees con-
cerning their union membership, activities, or support.
WE WILL. NOT threaten employees with discharge.
denial of employment or other reprisals because of
their union activities, membership. or support.
WE WIIl NOT transfer employees to less desirable
shifts because of their union activities, membership. or
support.
WE WIL.L Not request employees to spy or report on
the union activities of other employees.
WE Wl.I. NOT in any other manner interfere with.
restrain, or coerce our employees in the exercise of the
rights guaranteed them b Section 7 of the National
Labor Relations Act.
WE WII.l. offer the following named emploNees Im-
mediate and full reinstatement to their former jobs or.
if those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other
rights, and WE Witl make them whole for any loss of
pay or benefits they may have suffered by reason of
our discrimination against them.
Michael Johnson
Max Whitson
Marvin Kirk
Tommy Johnson
Gerald Kerr
William Lominac
Starks Porter
Wilbur Keith Queen
Richard Dickey
Charles Huffstetler
Curley Peterson
Clyde Coggins
Roy Collins
Jake Kluttz
Paul Vincent
Steven Brandon
Kermit RoN
Marvin Smith
John Jaynes
DANIEL CONSIRU( I0ION COMPANY. A DI, ISiI)N ()F
DANII. CoNS ItRt(II()N CORPORAION
725