Davis Electrical Constructors, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 102 (N.L.R.B. 1975)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Electrical Constructors , Inc. and David Clark.
Case 16-CA-5500
January 7, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 30, 1974, Administrative Law Judge
Eugene F . Frey issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed
exceptions and a supporting brief , and the Respon-
dent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the amended complaint herein be,
and it hereby is, dismissed in its entirety.
1 In adopting the Administrative Law Judge's conclusion that Respon-
dent did not violate the Act, we do not draw adverse inferences as he did
from the failure of the complaint to allege that Olson, a supervisor, was also
unlawfully discharged and from the fact that the General Counsel did not
produce Olson, whose whereabouts are unknown, as a witness.
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me on due notice to all parties on June 11
and 12 , 1974, at Big Spring, Texas, with General Counsel
and Respondent appearing by counsel , and the Charging
Party, David Clark , appearing in person, after pretrial
proceedings in compliance with the National Labor
Relations Act, as amended , 29 U.S.C. Sec . 151, et seq.
(herein called the Act). The issues are whether or not
Respondent, Davis Electrical Constructors , Inc., violated
Section 8(aXI) of the Act by a threat to discharge, and
actual discharge, of employees for exercise of their rights to
engage in concerted activity for purposes of collective
bargaining and exercise of other rights guaranteed to them
by Section 7 of the Act.'
1 The issues arise on a complaint issued May 14, 1974, by the Regional
Director for Region 16, and amended at the trial, after Board investigation
of charges filed by Clark on March 20 and April 19, 1974, and answer of
At close of the testimony all parties waived oral
argument , but written briefs duly filed by General Counsel
and Respondent have been carefully considered by me in
preparation of this Decision which was signed and released
by me on August 30, 1974, for distribution to the parties in
the usual course.
Upon the entire record in the case, observation of
witnesses on the stand, and consideration of arguments of
the parties, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a South Carolina corporation engaged in
commercial electrical construction work in various States,
with its principal office and place of business located in
Greenville, South Carolina . At all material times herein
Respondent had been doing electrical construction work
on a jobsite in Big Spring , Texas, the only site involved in
this case . In the 12 months prior to issuance of the
complaint, Respondent in course of its operations has
performed services valued over $50,000 in States other than
South Carolina . Respondent admits, and I find, that it is
and has been engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES 2
A. The Sequence of Events
Since August 1973, Respondent has been performing
electrical work as subcontractor on a community hospital
construction project in Big Spring . William L. Curtis was
its superintendent, Layne Simpson project manager, and
Bill Rowe the foreman on the job . All three are supervisors
within the meaning of Section 2 (11) of the Act.
Robert K. Smith, an electrician employed by Respon-
dent on various projects in various States for about 5 years
before 1973, was transferred by Respondent at his request
to the Big Spring project in December 1973, for reasons of
health. He worked as journeyman electrician there until his
discharge on March 12, 1974. David Clark, who had been
working as electrician 's helper on a Tennessee job of
Respondent since May 1973 , accepted an offer by Simpson
to do office and clerical work at Big Spring, and reported
there December 20, 1973. In the office he worked closely
with and under Curtis, handling payroll, inventory,
purchasing of supplies , and expediting of deliveries and all
paperwork , until his . discharge on March 12 , 1974. He
never did any electrician 's work on that job.
When both men reported for work , Respondent was not
yet doing substantial electrical installation because the
blueprints for that work were not made available until
January 1974 . In the interim Curtis kept a small crew of
about six men busy at make-work such as building material
and supply sheds, installing temporary power wiring,
prefabricating parts, and other odd jobs. However, in
December 1973 and January 1974, lack of blueprints as
Respondent denying the commission of any unfair labor practices.
2 All dates stated in this Decision are in 1974 , unless otherwise noted.
216 NLRB No. 21
DAVIS ELECTRICAL CONTRACTORS, INC.
well as intermittent bad weather, which at times caused the
whole project to shut down, often kept the electricians
from working a full week; in bad weather Curtis often let
his men work short hours or stay at home, if they felt they
could not endure the elements; at other times they had to
go home when the project superintendent shut the whole
job down. For these reasons Respondent's crew often
finished portions of their work before other crafts were
ready to begin coordinated work in their lines , so that the
electricians at times were idle while waiting for other crafts
to catch up.
Starting in January, Smith began to slow down his own
work, often doing no work for substantial periods while
talking to other workers and urging them to slow down
their work. However, he made no suggestions for slow-
down of the work or stretch-out of the work periods to
management other than to Foreman Olson, for whom he
worked only a few days. Olson apparently did not pass
along these suggestions to Curtis, except as noted hereafter.
Some employees complained to Foreman Rowe about
Smith's failure to work, saying they did not like to work
with him. His malingering, and their complaints to the
foreman about him, became more frequent after Smith
tried to quit in February as found below. From January
onward, Curtis began to notice Smith's idleness for
extended periods, and his frequent discussions with other
employees who likewise did no work during such conversa-
tions. Curtis received complaints from Foreman Olson that
Smith would refuse to obey work orders, and often
disappeared from the worksite for substantial periods.
Curtis talked to Smith privately about this, reminding him
that he was hired as one of the first journeymen on the job,
he was being considered for a foreman's job, and he
"should not let yourself, your family or me down." When
Curtis told him of Olson's complaints, Smith angrily
replied "F- that damn Yankee." This attitude became
known to other workers, including Clark, and some
crewmen resented Smith's apparent bigotry. When Curtis
learned of this, he transferred Smith to a crew working
under Foreman Bill Rowe . In February Curtis got
complaints from Rowe's crew that they did not like to
work with Smith, as he was continually slowing down his
work and talking to them, which hindered their work. At
least once Rowe reprimanded Smith for this conduct, and
reported to Curtis that he could get Smith to work only by
"standing right over him." Curtis talked to Smith about
these complaints, saying his work was "dropping off" and
he seemed to be losing interest in the job, and his work
would have to improve. Late in February when Rowe
warned Smith he might be fired because of other
employees' complaints , Smith angrily came to Curtis on a
Friday and said he was quitting because other workers
were talking about him. Just before this talk, Smith met
Simpson on the job and said he was quitting because,
referring to Curtis, "it did not seem like we were hitting it
off too well," and he asked Simpson for a transfer.
Simpson replied the quitting was a mistake, and while he
did not interfere between his supervisors and their men, he
3 In this period , and as late as a week before his discharge, Smith
complained several other times to Simpson that he was unhappy on this job,
and wanted to leave . Simpson apparently talked him out of leaving. In this
103
would talk to Curtis, and Smith should call Simpson at
Nashville on Monday.3 When Smith told Curtis he was
quitting, Curtis told him to leave his tools on the job, and
go home to think it over on the weekend, as local jobs were
hard to find, and then talk to Curtis later. Smith picked up
his tools and walked out, saying, "Hell, I am gone"
However, he returned to work Monday without having
called Simpson, and nothing was said by Curtis about his
quit or prior conduct. However, Smith's work performance
did not improve, and Curtis several times commented to
Clark during February that Smith was not doing his job.
Rowe continued to complain about Smith, and Clark told
Smith about the complaints from Rowe and Curtis.
In February Curtis began to get reports from the
foremen and employees that in his continual talks with
workers Smith was repeatedly suggesting that they slow
down their work. Curtis asked Clark, who he knew was
quite friendly with Smith, to talk to the latter about
stopping the talk and improving his own work output, as
he felt that Clark might have more influence with Smith
than Curtis, and Curtis wanted to keep Smith at work
because of the scarcity of able electricians. He also told
Clark to tell Smith that if his work fell off, he and Curtis
might both lose their jobs. Clark told Smith that Curtis had
said he was not doing as well in his work as he should, but
apparently did not pass on the warning of job loss. Clark
had also talked to one foreman who said he had had a
complaint about Smith , and also learned from some
workers that they thought Smith was not doing as much
work as he could.
These warnings to Smith did not succeed, for his work
did not improve, he continued to talk more than work.
Early in March Curtis again asked Clark to talk to Smith,
but Clark this time got angry, refused and retorted that
Smith did as good a work as any man. Curtis replied that
Clark had no way of knowing this, as he worked only in the
office, and Curtis said he had to believe contrary reports
from his foremen. On this occasion, Curtis also told Clark
that if neither he nor Curtis could persuade Smith to do his
job, Curtis would have to fire him. Apparently, Clark did
not relay this warning to Smith.
During the workday on Friday, March 8, Curtis called
Smith to the office and reminded him that he was not
producing, was also preaching a slowdown to other
employees, and warned him that if that continued "they
will get rid of me and you, as we all have to work." He also
told Smith to "keep your nose out of the business between
me and Clark," and to think about his family, and mind his
own affairs , after Smith admitted telling other workers that
Curtis had fired Smith, as noted below.
About 2:30 a.m. on March 8, Curtis woke Clark with a
telephone call, saying he was at the shop, that only six men
had attended the project training school the evening
before, and that he was upset about it, and had decided to
give a test . He told Clark he ought to come to the school
and study, because other employees including apprentices
were getting their journeyman 's license . Clark, rather
angry, replied "to hell with the school , I do not have to
period, and when he actually asked for a transfer, Stith knew Respondent
was running another job in Piano, Texas.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attend it." Curtis admitted this, said he was only trying to
persuade him to attend. Clark then called Curtis an
obscene name and hung up. Curtis called back shortly,
asking Clark if he knew who he was talking to and what he
had called Curtis. Clark replied: "Yes, you crazy s-o-b."
Curtis said, "Well, just don't bother coming in this
morning," to which Clark replied, "That's fine," and hung
up.
When Smith came by to drive Clark to work as usual,
Clark told him he would not go to work, relating his talks
with Curtis. About 9 a.m. Clark called Project Manager
Simpson at Nashville and told him what occurred. He also
mentioned reports he had received that morning about
alleged belligerent attitude of Curtis and the presence of
police in the office and said he decided to let Curtis "cool
off" and would go to work on Monday.4 Simpson replied
that Curtis did not really mean what he said, and that
Simpson would talk to Curtis. Clark then told him "there
were some other things," which he said he could not
explain on the telephone but would put in a letter to
Simpson. Later that day Simpson called Curtis, told him
about Clark's call, and his conversation with Curtis in the
early hours about attending the training school, and asked
what Clark was upset about. Curtis said he really did not
know. Simpson said he would come to Big Spring in a few
days to discuss Clark's complaints.
Clark spent Friday, Saturday, and Sunday composing
and revising a long letter of complaint to Simpson,
describing it as an "indictment" against Curtis regarding
conditions and problems on the job, and at end summa-
rized his charges against Curtis thus: (a) General "irre-
sponsibility," (b) working the crew "out of work" more
than once, (c) causing hard feelings among the crew, (d)
"belittling" workers behind their backs , (e) engaging in
public acts of violence, threatening such acts, and
encouraging "others" to act violently, (f) demanding
"extra-curricular performance" from employees without
official sanction, and (g) acting "publicly as to possibly
bring disfavor" on Respondent and its employees .5 In
preparing this document, Clark solicited and secured
advice and suggestions from employees Smith and Cedric
Rue and Foreman Olson. On Sunday, Olson, Smith, and
Rue signed a statement at the bottom of the last page of
the letter, under Clark's signature, attesting to the truth of
the statements in it.
Although he had first decided to stay away from the
office Friday, later that day Clark went in to make sure the
payroll was being prepared and mailed out as usual. He
found Curtis working on it, but when he came in Curtis
turned it over to him to complete, which he did, and then
took it to the post office to mail to the home office as usual.
I Clark testified that early on Friday he received telephone reports from
Smith and Olson that Curtis had been in a belligerent mood while talking to
three other employees before work that morning , that he had a broken pool
cue in his office at the time , and Olson told Clark police had been called in
to "keep Curtis from going too far when he started beating on us " The
events of that morning and the credibility of these reports will be discussed
below
S Clark based his charges about working conditions upon complaints he
heard from Smith and other workers about lack of protection on the job for
the crew during bad weather , alleged pressure by Curtis to make the
employees finish portions of their work ahead of schedule so that they often
They had no discussion about prior events, only about the
payroll.
On Monday, March 11, Clark went to work as usual, did
his work and dealt with Curtis in normal fashion. There
was no discussion between the two about the events of
Friday. As Clark felt "things were going smooth, were all
right now" between the two, he did nothing about the
complaint letter until about 10 a.m., when he made a
Xerox copy of it, and mailed the original to Simpson on his
usual trip to the post office before noon. Simpson received
the letter in Nashville on March 13.
That morning the whole crew including Smith was
working under some pressure to mount panels and install
electric ducts in a ditch under the ground floor, because
concrete trucks were due in that day to pour concrete on
the floor. Even Foreman Rowe was helping with the
installations to get the work finished quickly. Notwith-
standing the urgency, Smith and a helper deliberately took
several smoking breaks during the day, while the rest of the
crew worked. Smith deliberately smoked in hiding behind a
wall, because he knew that if Curtis saw them smoking he
would order them back on the job. On this date Smith also
talked to several helpers including Rue, suggesting they
slow down or they would "work yourselves out of a job."
At this time, Respondent had apparently had final
blueprints in hand for almost a month, its crews were
working a full week, and the amount of work had required
expansion of the work force to about 14 men. During that
morning, Curtis saw Smith leave the work area to visit a
restroom at the far side of the project site, where he
remained about 15 minutes and then emerged to go
elsewhere but did not go back to work. On inquiry from
Curtis, other employees did not know where Smith went.
After lunch Curtis remarked to Clark that Smith was
getting worse and worse, and he thought he would have to
let Smith go. Clark became angry and retorted that Smith
did a good job.
About 3 p.m., Clark suddenly asked Curtis in the office
what he intended to do about this "pool cue." Curtis did
not reply. He then asked why police had been called to the
office on March 8. Curtis said they were not there on his
account, but had been called to investigate a missing
calculating machine. Clark retorted that he was not a
"spy," which he said Curtis had accused him of, that he did
not do anything "behind your back." He then threw a copy
of the complaint letter on Curtis' desk, saying he had sent
it to Simpson, that the copy was "kind of sketchy" but it
would give Curtis a general idea of what he sent to
Simpson. Curtis glanced over it, noting the summary of
charges against him at the end and also that the copy
indicated it was signed only by Clark.6 He told Clark "This
is a mistake, it looks like you are trying to get me a raise, as
were "out of work" and did not receive 40 hours of work with pay therefor,
Curtis' failure to arrange overtime work for them so they could make up for
straight time hours lost, and alleged remarks by Curtis which caused
dissension among the crew and tended to lead to possible violence, all of
which caused some workers to talk about quitting to earn more pay
elsewhere.
6 When Clark duplicated the letter , the machine did not print part of the
wording on the sides of several pages, nor any of the attesting statements
with signatures of Smith, Rue, and Olson under Clark 's signature, on the
last page
DAVIS ELECTRICAL CONTRACTORS, INC. 105
a result of this one of us will be leaving, but it will not be
me." Clark said he agreed with the last remark. Curtis then
left for _a meeting with the general contractor's project
superintendent, Carl Grubb. On showing him the letter,
Grubb commented that this had happened to him a dozen
times, and Curtis should not worry about it.
On Tuesday, March 12, Clark and Smith came to work
together as usual. While Clark punched both in on the
timeclock, Smith entered the office, where Curtis told him
that he had talked to him about his conduct before, that
Smith not only did not work himself, but kept other
employees from working, so Curtis had to let him go.
Smith started to walk out with his tools, and told Clark as
he came in that he had been fired. When Clark entered the
office, Curtis asked him whether he "agreed with" the
statements in his letter about Curtis working the men "out
of work" so that they only got part-time work, whether he
thought Curtis should slow down the work and give the
men more "time" and pay them for not working. Clark
argued that he should, saying he had signed the letter, and
that the work was behind schedule anyway. Curtis retorted
that he would lose his job if he did a thing like that. He
then told Clark that if he agreed with what he put in the
letter "about slowdown tactics," "either you or I will have
to go, you forced it on me, I cannot have an assistant in the
office working against me, who handles payroll and time
records," and that Clark should gather his belongings and
go, he was fired. Clark said he had written to Simpson, and
Curtis could not fire him. Curtis said he could and told him
to leave with Smith, that he could not condone slowdown
tactics of any kind. While this discussion was going on,
Olson came in with Smith, and Curtis asked him if he, as
foreman, agreed with Clark that the job should be slowed
down, just to "make time" for the men, commenting that
this was the same as stealing from Respondent. Olson
replied "we ought to do something, we are ahead of
schedule, so give the men the time." Curtis replied that he
could not do that, it was "stealing," that "if that is your
attitude, and you are my foreman, you can just go along
with Smith." Olson said that he would, and the three men
left the office.
Clark and Smith decided outside the office that they
should get termination slips , so they returned with Olson
and the three angrily demanded slips with the reason for
termination stated on them. Curtis said he would prepare
them later, but they demanded them at once. Curtis
prepared Clark's slip, leaving the reason blank. Clark said
he wanted that filled in. Curtis then wrote in "insubordina-
tion ." Clark asked what that meant , and Curtis shook the
rolled-up copy of the complaint letter and replied, "This
letter." When Curtis wrote out Smith's slip, he filled in
"insubordination," when Smith demanded a reason. Smith
denied he was insubordinate. Curtis asked him what he
would call it when he told other workers to slow down.
Smith argued that word meant talking back to the boss,
refusing to work on the job, or beating up the boss. Curtis
replied "I would not say you were insubordinate to me, but
you are fired anyhow, what do you want put down?" Smith
said, "Fired." Curtis then tore up the slip, sat for a
moment, and then said to the three, "Everybody needs to
cool off for a moment." After a few moments of silence, he
asked Smith, "If I came on your job and deliberately told
the men to slow down and not work, what would you put
on my termination slip." Smith replied, "Just say terminat-
ed." Curtis replied, "Well, in your case maybe insubordina-
tion is not right." He then turned to Olson and said that he
was the foreman, and required to see that the work was
done, but "you come in here and tell me you agree with the
slowdown tactics in this letter, so your reason should be
insubordination, should it not?" Olson replied, "If that is
what you want to put down, put it in." Curtis wrote that on
his slip.
During this discussion, employee Cedric Rue walked in
and asked Curtis if he was firing those who signed the
letter. Curtis said he was. Rue said he had signed it, too.
Curtis asked why, and Rue said it was because of the
ironworker incident stated in it, not the other complaints.?
Curtis replied "come in and have a seat, you are fired,
too." Rue sat down.
Curtis then said to the four men "This is all a bunch of
-, we all need to work, you all get your tools and go back
to work and do your jobs right, and let us forget the whole
mess ." Smith and Clark said they had already made other
plans. Curtis repeated that this was a mess, they knew he
needed men, so if they went back to work, he would be
"man enough to forget all this, you forget it, and we will all
go back to work and do our jobs." No one replied except
Rue who said he would work, as he needed the money.
Curtis then finished filling out termination slips for Smith
and Olson. He then turned to Rue, asked if he really
wanted to work. Rue said he needed the money. Curtis told
him to go back to work with his tools. Rue did so. The
other three men took their termination slips and left. Later
that day Clark returned to the office to return some office
keys to Curtis.
On March 13 Clark called Simpson at a job in Plano,
Texas, said he had been fired, asked if the discharge was
firm , and whether he still had a job or not. Simpson replied
that he was sorry about the discharge, as he felt Clark
might have had a good future with Respondent, but that he
would have to support Curtis in his action, "that is the way
it is ." Later in the week Curtis called Clark's home to find
out where certain cash receipts kept by Clark were located.
Clark was not home, so Curtis asked his wife to find out
from Clark. Clark called Curtis shortly and accused him of
harassing his wife. Curtis denied any harassment and
explained why he called. In the discussion, Curtis com-
mented that Clark had been doing a good job and still had
a future with Respondent, and suggested Clark return to
work at the home office in Nashville, as he knew Clark's
wife did not like the Big Spring area . He also reminded
Clark that he (Curtis) could not pay men on the Big Spring
job for not working. Clark refused the suggestion, saying
that he did not feel that his termination was the fault of
Curtis at that time, but the fault of Respondent, and "I will
get the company." Clark had another phone talk with
Curtis on the weekend of March 16-17, in which Curtis
again suggested that Clark go back to Nashville to work
and "forget about this," adding "you know you cannot
work here with me." Clark replied that he felt his
7 The ironworker incident will be discussed further below
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination was not the fault of Curtis, but of Respondent,
and he would take action against Respondent about it.
In the week of March 17, Clark followed Curtis'
suggestion by calling Respondent's personnel director in
Greenville, South Carolina, who offered him a job at a
project in Wichita Falls, Texas. Clark declined the offer.
He later got a temporary job through a union . Two days
after their discharge, Smith and Olson got long-term
employment on a job in Seminole, Texas, through a
union.8
B. Arguments of the Parties, and Conclusions
Thereon
There is no disagreement among the parties, and I find,
on the above events, that Clark and Smith engaged in
protected concerted activity when Clark compiled a list of
the grievances of the employees in the complaint letters
with the help of Smith and other workers . Smith, Olson,
and Rue endorsed the complaint by signing it, and Clark
sent it to Respondent as agent or spokesman for the others.
Although Clark was an office clerical employee and to
some extent a management trainee at the time , and was a
volunteer to the extent that he initiated, composed, and
sent the grievance letter on behalf of the production
employees without formal designation as their agent, he
was still engaged in concerted protected activity. Buddies
Supermarkets, Inc., 197 NLRB 407, 417-418 (1972)
(discharge of Charles Ray Smith); Dakota Electric Associa-
tion, 201 NLRB 302, 306, 307 (1973), and cases cited
therein ; Hugh H. Wilson Corporation, 171 NLRB 1040
(1968), enfd. 414 F.2d 1345 (C.A. 3, 1969), cert. denied 397
U.S. 935.
Since top management of Respondent did not receive the
grievance letter until March 13, the crucial questions are
whether Curtis knew or had reason to believe Smith and
Clark were engaged in this concerted activity when he
discharged them on March 12, and whether such knowl-
edge or belief, if it existed , played any part in the
discharge , or whether he discharged them only for
engaging in and advocating an organized slowdown of
work , as Respondent contends . Respondent's defense is
based on the well-settled principles that employees who
engage in deliberate "slowdowns" of work or encourage
others to do so, and thus refuse to work upon the terms
prescribed by their employer but continue to work only on
their own terms , are engaged in activities not protected by
the Act, and their discharge for such activity does not
violate the Act. Elk Lumber Company, 91 NLRB 333, 337,
338 (1950); N.L.R.B. v. Blades Manufacturing Corporation,
344 F.2d 998, 1004, 1005 (C.A. 8, 1969); General Electric
s The above facts are found from a composite of credible testunony of
Curtis, Rue, Glenn Preas , numerous admissions of Clark and Smith, and
documentary proofs . Testimony of Clark and Smith in conflict with the
findings is not credited for reasons noted hereafter.
s Curtis admits that , after he learned a husky ironworker on the job had
been "picking on" his electricians, he suggested to some of the crew that
Rue, a husky man himself , might be sent to work in the area of that
ironworker so he might "whip" him if he continued to pester the
electricians . Rue declined the offer.
to The record shows that : Clark was transferred by Respondent to Big
Spring with the understanding that he would begin to learn the operation of
Company, 155 NLRB 208, 220-221 (1965); New Fairview
Hall Convalescent Home, 206 NLRB 688 (1973).
At the outset, as background on the issue of motive, I
must consider the complaint that Curtis coerced Clark on
March 11 by a threat to discharge him because he engaged
in the concerted activity of sending the letter to Simpson. It
is clear that when Clark suddenly gave Curtis the copy of
the letter on March 11, said he had sent it to Simpson, and
Curtis looked it over, Curtis knew that Clark was
complaining, not only about Curtis' actions and attitude
toward Clark, but also about his treatment of and attitude
toward the production crew, so that it must have been
patent to him that Clark was speaking for the crew about
some of the incidents he related. Hence , his immediate
comment to Clark that the letter was a "mistake" and that
as a "result one of us will be leaving, and it will not be me,"
is prima facie proof that Clark would be discharged, in part
at least for presenting grievances on behalf of production
employees. Curtis in testimony admitted he was well aware
of the "ironworker" incident where he is charged with
inciting the men to violence .9 However, he also knew that
Smith had been malingering by slowing down his own
work and working against his employer by urging others to
do the. same, and I find from his testimony that he
reasonably inferred from the charges of "driving" and
"rushing" men in their work so that they "run out of work"
and have to wait for more work, with shortened paychecks,
that this complaint was related to Smith's attempts to cause
slowdowns, and that Clark sympathized with these efforts
at disruption of the operations and sabotage of the work.
Since he knew this support came from one he had
befriended and tried to help ever since he came to the
job,10 and who was a trusted employee with whom he
worked closely every day, I am convinced that his threat
that Clark had to go was based solely on the realization
that he could no longer have a man working directly for
him in a position of trust whom he had befriended and
who was disloyal in supporting efforts of others to
sabotage the operation. I must also infer that Curtis was
greatly shocked by Clark's disrespectful remarks to him
during their phone conversation of March 8, as a result of
which he told Clark on the spur of the moment not to come
to work that day. However, he did not prevent Clark from
completing the payroll later on March 8, and there is no
charge by General Counsel that the order not to report that
day was violative of the Act . I must conclude that Clark's
sudden disrespect of March 8, followed by his revelation
on March 11 that he had gone behind Curtis' back to make
a series of complaints, both personal and general, about
Curtis as a person and company agent, probably not only
shocked but angered Curtis, and made him conclude right
then that he could no longer have a man working in a close
the business, with the idea of possible advancement into a management
position . Curtis accordingly taught him personally many of the duties of
purchasing and expediting of deliveries. He also urged him repeatedly to
attend a voluntary on-the-job training school conducted by Curtis, so that
Clark could learn basic and advanced electrical theory, also local code
requirements , which would help him to advance toward journeyman status
and procure a local electrician's license . In addition, Curtis took a personal
interest in Clark, letting him and his wife room with Curtis until they
secured an apartment, and frequently talking socially with Clark, and
treating him like a son.
DAVIS ELECTRICAL CONTRACTORS, INC.
and confidential position with him who had thus displayed
his disloyalty of and disrespect to Curtis . I am convinced
these circumstances caused Curtis to make the instinctive
remark that they could no longer work together , and that
one of them would have to go . In this context, I am
convinced and find that the general complaints and
evidence of concerted activity set forth in the letter played
no motivating part in the threat of discharge, and I
conclude that it was not actually or reasonably calculated
to be coercive, and did not violate the Act. I recommend
dismissal of paragraphs 7, 10, and II of the complaint
dealing with this incident.
I have already found that Smith deliberately slowed
down his work , and preached the same tactics to others,
before his discharge , and had continued this conduct
despite repeated warnings from his foreman and Curtis.
According to his admissions , he continued this disruptive
conduct in a defiant and flagrant manner on March 11,
when he several times shirked his work , got his helper to do
the same thing , and urged others to slow down , although
he admits he knew the whole crew were working against a
short deadline that day. As Curtis reminded him of his past
derelictions , when he walked in on March 12 and knew
from personal observation that Smith had been absent
from his work a substantial period the day before, I am
satisfied that this was the last straw which caused Curtis to
discharge him on the spot . At this moment , Curtis had no
knowledge that Smith had signed the letter to Simpson,11
'so I must find that the instant discharge was for cause, in
the form of refusal to work , and inciting others to stop
work and slow down, and was not discriminatory. When
Clark walked in shortly after, Curtis mentioned to him
only the charge in the letter about working men "out of
work," and got Clark to admit he favored a slowdown and
stretchout of worktime to enable the men to get more pay
for less work. Curtis understandably said that he would be
fired himself if he allowed a thing like that, and discharged
Clark on the spot because, as he stated clearly, he could
not have a man working against him in the office (who had
control of time records and payroll accounts). At this
moment, I am satisfied that Curtis had in mind only
Smith's continued failure to work and attempted sabotage
of the job, and Clark's agreement with that conduct. He
did not mention any of the other grievances stated in the
letter, and neither Smith nor Clark tried to bring them up
or argue about them. Curtis clearly fired Foreman Olson
for the same reason , when he admitted he agreed with in
effect Smith 's action and that Curtis should work out some
method of giving the men more time .12 It is also significant
that the General Counsel floes not complain that Olson
was illegally discharged, which convinces me that when he
discharged the three men, Curtis had in mind, as he
credibly testified , only the unusual circumstance that three
good employees, one a competent journeyman , another a
trusted office employee, and the third a foreman, had
variously engaged in, preached , and supported a slow-
11 Smith admits he did not tell Curtis at any time in the discussion that
he had signed or concurred in the grievance letter , and there is no credible
proof from other witnesses that Curtis knew before he discharged Smith that
he had engaged in the concerted activity.
12 This argument was clearly a pretext and without merit , as it was stated
by Smith and Clark, because on that date Respondent had had the working
107
down. While Curtis was thus confronted with a concerted
effort by these three employees to organize and continue a
slowdown, this concerted activity and threat of its
continuance was not protected by the Act, but was ample
ground for their discharge, under the cases cited above.
That this was Curtis' sole motive in the discharge is also
indicated strongly by the fact that in the ensuing argument
over the reasons to be put on the termination slips, Curtis
referred only to the slowdown tactics, not to any other
grievances stated in the letter, and also by the contrasting
treatment of Rue, who was at once put back to work when
he claimed that he signed the letter only because of the
ironworker incident, in effect disclaiming any support of a
slowdown. Another indication that the concerted com-
plaint about working conditions played no part in the
discharge lies in Curtis' repeated offer to the three, while
arguing about the wording on the termination slips, that
they should all forget the "whole mess," and go back to
work and do their jobs. General Counsel argues that this
was not an unconditional offer to return to work, because
it implied that the three employees must forget and drop
their concerted presentation of grievances as the price of
reinstatement . I do not read this condition into the offer,
because in the context of the existing full employment and
increase of the work force, his suggestion that they forget
the "whole mess," was merely a request that they get back
to work and do their jobs, forgetting the illegal slowdown,
while he would forget about their disloyal and disruptive
tactics, and they would all try to work in harmony
thereafter. Hence, it was not a one-sided offer, requiring
employees to forego protected concerted activity before
reinstatement, but mainly an effort by a supervisor
concerned only with getting on with the job to keep good
men at work, notwithstanding past derelictions.13 Finally,
Respondent's lack of animus toward either Clark or Smith
based on their known concerted activity is indicated by the
facts that:
(1) Curtis made two later suggestions that Clark return to
work at Nashville, which I consider were sincere efforts to
continue to help Clark out, despite his disloyalty to Curtis,
for Curtis testified credibly that he had authority as
supervisor at Big Spring to recommend men for jobs at
other sites, and he made these suggestions while reminding
Clark that he could not come back to Big Spring because
of his conduct toward Curtis; it is inferable that Curtis
would not have made these suggestions if he felt Clark was
entirely incompetent or valueless to Respondent.
(2) Although Curtis knew on March 12, and Smith made
no attempt to contradict him, that Smith had been the
main malefactor in actual slowdown on the job and
instigating others to do the same, he also realized that
Smith was a competent journeyman when he actually
worked, and this was the reason, as he testified, that he
blueprints for almost a month, and the job was apparently running fulltime
for all employees, as the work force had been increased to 14 men.
13 Curtis admitted Smith was a competent workman when he worked,
and he was plainly willing to clear the back slate and continue Clark at
work, even despite his patent disloyalty to both Curtis and Respondent in
supporting a slowdown.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to let Smith go back to work, provided he did his
work right.14
In reaching these conclusions I have considered carefully
the issue of credibility as between Curtis on the one side
and Smith and Clark on the other, and have concluded
that the inherent probabilities favor the version of the facts
stated by Curtis. In appraising the credibility of Smith and
Clark, I noted that they were young men , both acting and
testifying in a rather calculated and careful manner. Clark
in particular impressed me as a coldly calculating but
articulate individual whose actions in this case appeared
carefully designed to build a case of concerted activity
based on many grievances of seeming merit in order to
hide Smith's derelictions and efforts at sabotage and
Clark's concurrence therein. It is also clear Clark acted not
from genuine concern for his fellow-workmen, but more
from some personal animosity toward Curtis, as he
admitted he did not like Curtis or working for him, and
openly expressed this dislike to other employees before the
dismissal . In light of Curtis' special attempts to help him
advance himself in the business as found above, and his
general friendliness toward him as a person, Clark's
repayment by a refusal to help Curtis to get Smith to
reform, his disrespectful name-calling of Curtis, and
secretive attempts to undermine his status with Respon-
dent as well as supportive attempts of Smith to sabotage
the operation, all tend to discredit him as a person and as a
witness . In contrast , I found Curtis to be a rather direct-
spoken and sincere individual, less articulate and less well
educated than Clark, but nonetheless impressive in his
plain and straightforward manner and testimony on the
stand.
Despite their patent attempts to corroborate each other
i.i presenting a studied picture of protected concerted
activity, the testimony of Smith and Clark in some respects
is contradictory, and Clark contradicted himself on certain
aspects of his dealings with Curtis on the date of discharge
and later. These discrepancies further tend to affect their
credibility.
Aside from these weaknesses in their stories, their
credibility is further diminished by the fact that Foreman
Olson was not produced by either Clark or General
Counsel to support their testimony. According to both,
Olson was the main source of information about Curtis'
alleged failure to provide protection for the men against
bad weather, his alleged talk about and criticism of
workers behind their backs, his alleged belligerent attitude
toward workers in a meeting early on March 8, and his
is General Counsel refers to the fact that Curtis had never before
discharged a group of employees on the job, as indicative of the
discriminatory nature of the mass discharge of four men. The argument has
no merit , because the record shows that while Curtis had discharged at least
two other employees singly for failure to do their job , as he did Smith, he
had never before been faced with a concerted effort at sabotage of the
operation by a group of employees.
is 1 find from credible testimony of Curtis , as corroborated in part by
admissions of Smith and Clark, that- Sporadic inability of electricians to
work during bad weather in January and February was due in part to the
state of construction of the portions of the hospital where they were
working, which made adequate protection impossible , and apparently
caused the general contractor to close down the whole job at times, and in
part to the decision of Respondent's employees themselves that they found
it too hard to work in bad weather ; Curtis often let them make this decision
for themselves Aside from the "ironworker" incident, admitted by Curtis,
alleged threatening handling of a broken pool cue on that
occasion, and the alleged reason for presence of police on
the jobsite that day. Olson's testimony would also have
been helpful prima facie in assisting the court in resolving
the many conflicts of testimony about the circumstances of
the discharges themselves . Since credible testimony of
Curtis and admissions of both Clark and Smith give
reasonable explanations for these incidents which tend to
offset the implications from testimony of Smith and Clark
that Curtis was a heavy-handed, erratic, rather tyrannical
supervisor who caused dissension among the men and
created unsatisfactory working conditions that prompted
the grievance letter , and also discharged the two because of
the grievance letter ,15 the testimony of Olson was obvious-
ly crucial to support the stories of Smith and Clark.
Although General Counsel subpenaed Olson, he did not
appear. At the close of General Counsel 's case-in-chief,
colloquy between counsel indicated that Olson might be a
fugitive to evade service of a state warrant for arrest. When
the court offered to give General Counsel time to enforce
his subpena through process of the United States District
Court, that official declined to take that step. In these
circumstances , I must conclude that Olson was not shown
to be unavailable as a witness , since General Counsel did
not exhaust the remedies available to him to compel
appearance of an important witness . I can only , infer from
this inaction that Olson would not support the testimony of
Smith and Clark if he testified.16
In sum , considering all of the pertinent facts and
circumstances pro and con, while the issue on the facts is
close , I must conclude that Respondent has adduced
cogent proof indicating that both men were discharged for
good cause which is sufficient to rebut the prima facie case
of discrimination made by General Counsel , and that
General Counsel has failed to sustain the ultimate burden
of showing by substantial proof from the record as a whole
that Respondent discharged them for concerted activity. I
therefore recommend that the amended complaint be
dismissed in its entirety.17
On the facts found above I conclude as a matter of law
that Respondent , as an employer , engaged in commerce
within the meaning of the Act, has not violated the Act by
its discharge of David Clark and Robert K. Smith, or by
any other conduct alleged in the amended complaint.
On the basis of the foregoing findings of fact and
conclusions of law , and on the entire record in the case, I
hereby issue the following recommended:
which was an isolated instance , there is no credible proof that Curtis
preached violence on the job, indulged in violence himself , or caused
dissension among the men by idle talk or other means. The "pool cue"
incident involves a conflict of testimony between him and another worker as
to whether a broken pool cue was in the office on March 8 , but there is no
proof at all that Curtis held it in his hand or threatened any employee with it
then or any other time The presence of police on the site is credibly
explained by testimony of Curtis and Clark that equipment had been
missing from the site, so that police were regularly on patrol on the site
during the night , and were on the site on March 8 for investigation of
possible thefts.
is Community Motor Bus Company, Inc., 180 NLRB 677, 681 (1970)
IT I have considered other peripheral facts and circumstances cited by
General Counsel , and his arguments thereon, but find them insufficient to
warrant findings and conclusions different from those found above
DAVIS ELECTRICAL CONTRACTORS, INC. 109
ORDER is
The amended complaint in Case 16-CA-5500 is dis-
missed in its entirety.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings , its findings, conclusions , and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.