Delta Metals, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1978

236 N.L.R.B. 1665 (N.L.R.B. 1978)

DELTA METALS, INC(.
D)EC!SION
July 19, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS Pl NII. I()
ANt) [Rt USI)At.E
On December 7. 1977, Administrative I.aw Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, both the General
Counsel and the Respondent filed exceptions and
supporting and answering briefs. The General Coun-
sel filed a motion to remand case for consolidation
and further hearing, to which the Respondent filed a
response. Subsequently. the General Counsel filed a
motion to strike the Respondent's response to which
the Respondent filed another response contesting the
motion to strike.'
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,2 findings.3 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
The General Counsel's motion to remand case for consolidation 'aith
Case 10-C('A 13592 and further hearing is denied inasmuch as there exists
no substantial reason to delay the issuance of our decision herein. The
motion to strike is also dented as lacking in merit
2 Respondent contends that the Administrative L aw Judge erred in allow-
ing counsel for the General ('Counsel to amend the complaint at the hearing
to allege that Respondent violated Sec 8(atj3) of the Acl h? dischairing
Robert Bratcher. Respondent argues that a charge alleging solation of Sec.
8(a(3) with respect to Bratcher's discharge was previousl) dismissed bs the
Regional Director Thereafter, Bratcher's appeal of the dismissal was denied
by the General Counsel in Washington D) C., because it was untimels Iled
Contrars to Respondent's contention counsel for the General Counsel did
not abuse his discretion bh moving to amend the complaint in the manner
described above Hotel, fMotel & Restaurann Emploiees ( ankee Trader. Inc.
dbh a Treadi'auv Inn at Roche.ster. ,\ ,} . 191 NLRB 528, fn 3 119511 Nor
did the Administrative L aw Judge abuse her discretion in granting that
motion. Indeed. on October 4, 1977, the Board denied Respondent's interim
appeal from the Administrative L aw Judge's ruling granting the motioin
The allegation concerning Bratcher's discharge, and that of Paul Driskell.
which was the subject matter of the issued complaint, arose out of essen-
tialls the same set of facts We conclude that the issues in each discharge
SAI I MtNT OF IHE CASe
At MIRA AHBAT Sits: .NSoN, Administrative Law Judge: A
hearing was held in this proceeding at Savannah. Georgia.
on September 21 and October 20. 1977. The charge was
filed March 15 and served on the Respondent March 16,
1977. The complaint was issued July 27. 1977. and duly
answered by the Respondent. The complaint and answer
were amended at the hearing.
The issues are whether or not the Respondent dis-
charged employees Robert Bratcher and Paul Driskell be-
cause of protected concerted union activity, in violation of
Section 8(a)(3) and (I) of the National Labor Relations
Act, as amended. For the reasons set forth below, I con-
clude that the complaint should be dismissed.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the General Counsel and the proposed
findings of fact and conclusions of law and brief filed by
the Respondent. I make the following:
FINDINGS or FA(tI AND CON(tLUSIONS OF LAW'
I Jt RISDI(t ION
The Respondent is a Georgia corporation, with an office
and place of business in Savannah, Georgia, where it is
engaged in the installation of commercial and industrial
sheet metal roofing. During the past calendar year the Re-
spondent purchased and received supplies valued in excess
of $50,000, directly from suppliers located outside Georgia.
The Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
were sufficlentls related toi allow amendment iof the uii pl.lilil ti. lchliice
the Bratcher discharge. notss ithstanding the earlier dismilsal of the Br:,ither
charge on procedural grounds onl, 4ce I)r,,p ( 1ti (/. li, . 178 Nl RB
664 at fn. I 19691. ( a/hfrnlt Pats fic Signs, Imn 233 NlRB 4sO (ii977 ( f
Silver Baker In f riNt'(toin. 150 NLRB 421 (1964). enforcement denied 3
F.2d 37 ((CA I. 195), In concluding that there. as no abuse of dilcrel.on
herein, we are also mindful that Respondenl was lxern ufflcienl time in
which to prepare its defense to the added allegation of ihe cornpl.lill and
had the right to recall General ( ounsel's witnesses for further croe .xam-mi
na tiont
3 The General Counsel has excepted to certain credihills findings iil.lde
by the Administrative Lasw Judge It is the Board' estahlihed pohrc\ nTt t,
overrule an Administrative ILaw Judge's resolutions a Ith respect ito credihbl-
ty unless the clear preponderance of all of the rele.lant exldence coinsoies
us that the resolutions are incorrect. Standard I)rl " il Prllui -rsI /In . 91
NLRB 544 tl1950). enfd 188 F 2d 362 ((' A 3. 19i1 We hare c.refulls
examined the record and find no basis for resersilvi her finlding,
The record reseals that the Administrative La, Judge incorrectlI Inter-
preted Lee's remark to Bashlor. "we would lease .ttil he [Rouiilnl gcot
straightened out," to mean that the mnion would allow Roulin to continue
to work while he straightened out his membershir statuil Hahlor. on whose
testimoiny this finding ias based. stated Ihat he underitood I ce's direcitlc
to mean that the emplosees would leave if Roulin worked uithout hal inc
paid the moness he owed the nimon Accordingl. we sust.aln the (etnerall
Counsel's exception and make the necessars correction [ his correcion.
however, does not affect the rationale or the result of the \dminlitreltic
Law Judge's conclusions nor does it disturb our atloptiion of her l)ecisiot
236 NLRB No. 135
Delta Metals. Inc. and Paul Driskell. Case 10(CA
12664-1
1665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION
Sheet Metal Workers Union, AFL CIO, Local No. 85,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
111. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Georgia Power Company has a nuclear-power project in
progress at Baxley, Georgia. The general contractor for the
project is Erickson's, Inc.; its site superintendent is Rich-
ard Zeigler. Erickson's, Inc., has two subcontractors en-
gaged in sheet metal work-Shook and Fletcher which per-
forms insulation, and the Respondent, which installs ducts
for heating, ventilation, and air-conditioning systems. Ping
Tyner is general superintendent of the Respondent, and
Bill Gresham is general foreman at the jobsite.'
The Respondent's sheet metal workers have been repre-
sented by the Union for approximately 17 years. General
Superintendent Tyner and General Foreman Gresham are
former members. The Respondent recruits its sheet metal
employees from the union hall?. James Bashlor., the job
steward for the Respondent's employees, testified that he
has never known the Respondent to interfere with the
Union's activities or to discourage membership in the
Union. The record does not indicate what contract rela-
tionship there is, if any, between Shook and Fletcher and
the Union.
B. Robert Bratcher
Robert (Red) Bratcher worked for the Respondent at the
Baxley project for a period ending in 1974, and then at
another project of the Respondent until he returned to the
Baxley site in April 1975. He was a member of the Union
but held no office and had no authority to act for the
Union. He was a nonsupervisor foreman, directing the
work of a crew of sheet metal workers installing duct work.
The events which led to Bratcher's discharge began on
the morning of March 8, 1977. Bratcher approached Stew-
ard Bashlor and asked him if he knew there were two new
Shook and Fletcher men on the site, one of whom had a
Union card, but one of whom did not. Bashlor said he did
not know but would check it out.3 Bashlor sought out the
i The record shows that (Gresham, who did not testify, is In charge of
running the job for the Respondent at Baxley. He sees that its emplo,,ees are
placed on the job and tells them what to do, grants time off, and warns and
reprimands employees about theirjob performance I find that he is a super-
visor within the meaning of the Act.
Superintendent Tyner testified that as far as he knows the Respondent's
collective-hbargaining agreement requires Greshanm, as the jobsite foreman,
and other foremen to be members of the Union, and that (iresham is still ;
member. Although 'Tyner could not say whether or not the agreement re-
quires that all employees be members. Tyner said he has alwayls equated
signing a collectise-bargaining with a commitment to work onl, union
members. No copy of the agreement between the Respondent and the
Union is in evidence. Georgia is a right-to-work State.
3 Based on the credited testimony of Bashlor. He is credited generally on
the basis of his favorable demeanor and his aIpparent impartiality
Bratcher's denial that he had any conversation with the steward early that
morning is not credited Bratcher had a tendency to dissemble at times
two new men, Jerry Roulin and Charles Henry, and asked
if they had receipts, or paid-up cards.4 Henry had such a
card but Roulin did not. Roulin said he was "in the process
of getting straight with the Union to get back in," and that
Tommy Cooler, a union business agent stationed in Atlan-
ta, had given his okay for Roulin to come to the job. Bash-
lor told Roulin it would be all right until he checked with
Cooler. Although Bashlor was unable to reach Cooler, he got
another business agent in Atlanta, Lynn Lee, on the phone
and asked him if he knew that Roulin was on the job. Lee
replied that Roulin had contacted him "wanting to know
what it would take to get straightened out with the Union,
to get his card back." Lee added that if Roulin was on the
job, "we will leave until he got straightened out." s For
Roulin to get straight with the Union, Bashlor said that he
would have to pay a "re-initiation fee, plus two months
dues." Bashlor reported to Bratcher that Roulin did not
have a card but that Business Agent Cooler had okayed his
presence at the site. Bratcher responded that he should
have a paid-up card before he came on the site.6
Meanwhile, shortly after Bratcher's first conversation
with Bashlor, he sought out Roulin and Henry on the site.
Bratcher asked Roulin if he had a union card, or receipt,
and Roulin said he did not. Bratcher then turned to Henry
and asked him if he had $500. When Henry replied that he
did, Bratcher told him, "Well, if you work with this man
the rest of the day, you're going to need the $500.00, be-
cause this man you're working with does not have a Sheet
Metal receipt in his pocket, and he's not supposed to be on
the job." Roulin said he had a check in the mail. Bratcher
responded, "Jerry as far as I am concerned, that don't
mean anything. When I come on this job I had to have a
paid-up receipt," and showed Roulin his own card, adding
that "As far as Union business goes, you should have one
of these." and that Roulin should not be working without a
card. Roulin told Bratcher, "Well, if its going to cause any
problems, we'll leave the job." Bratcher said, "Well, don't
leave because I said anything, because I haven't anything
to do with it as far as telling you to leave the job, but I'm
telling you the circumstances which you're getting into."
Roulin and Henry thereupon left the jobsite.7 Bratcher tes-
tified that the reason he confronted the two men was that
Baxley "was a Union job, and all Sheet Metal Workers on
the job were supposed to be Union," that Roulin should
not have been working if he did not have a union card, and
that Henry was subject to a fine by the Union of $500 for
working with a man who had no union receipt in his
pocket.
The following morning, General Foreman Gresham
summoned Bratcher to his office, and Bratcher reported
there accompanied by Steward Bashlor and Business
Agent Cooler. Gresham handed Bratcher an envelope con-
swhere his interest appeared to be thereatened.
4 Both Bashlor and Bratcher used words card and receipt interchange-
ably. Bratcher testified the) are the same thing.
In the absence of an) explanation of the meaning of this last statement,
I presume that the word "it" belongs between "leave" and "until". The
record does not indicate that a walkout took place or was contemplated.
6 Based on Bashlor's credited testimony.
Based on Bratcher's undisputed testimony. Although he dissembled at
first on whether the two sheet metal workers left the jobsite, he subsequently
conceded that the) did.
1666
DELTA METALS. INC.
taining his paychecks and a separation notice for causing a
disturbance on the job. When Bratcher asked what distur-
bance he had caused, Gresham said he did not know.'
General Superintendent Tyner testified that Gresham
does not have authority to discharge employees, and al-
though he talked the matter over with Gresham, he himself
made the decision to fire Bratcher based in part on infor-
mation received from Erickson's, Inc., Superintendent
Zeigler that Bratcher had been involved in a confrontation
with Shook and Fletcher employees regarding union mem-
bership, which was the union steward's business, as a result
of which two employees had walked off the site, and be-
cause Zeigler also told him that Bratcher was not manning
his job and his crew was standing around not working, as
had occurred on previous occasions.9 Tyner said the latter
was the main reason, but he conceded he would not have
fired Bratcher at that time if he had not created the distur-
bance by causing the employees to walk off the job. After
Bratcher was terminated, Tyner said, he had to get a re-
placement for him.
In view of the Respondent's long history of a stable,
peaceful relationship with the Union, the past affiliation of
SuperintendentTynerand General Foreman Gresham them-
selves with the Union, and the absence of any evidence to
the contrary, I find that the Respondent harbored no animus
toward the Union and that neither hostility toward the U nion
nor an intent to discourage membership in the Union played
any part in the discharge of Bratcher.
As Tyner had received reports from Zeigler on past oc-
casions that Bratcher was not manning his job and his crew
was standing idle, without disciplining Bratcher. and as Ty n-
er conceded he would not have discharged him on this
occasion but for his conduct with respect to the Shook and
Fletcher employees, I find that the controlling reason for
the discharge of Bratcher was that he caused two Shook
and Fletcher employees to leave the jobsite because one of
them did not have a paid-up receipt from the Union or a
union card.
I find no merit in the General Counsel's contention, in
support of the allegation that the conduct for which
Bratcher was discharged was protected concerted union ac-
tivity, that the subject of his conversation with Roulin and
Henry was the financial obligations incurred by them
through their membership in the Union, a strictly intra-
union matter: that Bratcher was merely trying to assist the
labor organization to which he belonged by soliciting two
of its members to remain in good standing with the Union:
and that the means he employed were reasonable.
The record clearly shows that Roulin was not a member
of the Union, and that he would not be a member until he
paid a reinstatement fee and 2 months' dues. It is also clear
that Bratcher's concern was to deprive Roulin of his job.
by intimidation of him and threatening his co-worker with
a heavy fine, because Roulin was not a union member. I do
not think Bratcher can escape responsibility for the success
of his tactics on the basis of his attempted last-minute dis-
avowal, asitcarried itsown reiteration of"the circumstances"
8 Based on essentially mutually corroboratite testimon? of Bratcher and
Bashlor
9 I find that Zeigler did give Tsner such reports. based on their mutuallk
corroborative undisputed testimony.
which would result from Roulin's continued working at his
job.
It seems to me that the conduct for which Bratcher was
discharged falls within the principle endorsed by the Board
to the effect that "a statement by one employee to another
that the latter would have to join the union to keep his job
is outside the area of protected activity." '0 Bratcher went
even farther, because he in effect told Roulin he could not
keep his job because he was not a member of the Union.
The Board has pointed out that such a statement would be
unprotected even where, unlike here, there is no State
right-to-work law and the union has a valid union-security
agreement with the threatened employee's employer, be-
cause the employee could retain his job without joining by
tendering the proper dues and initiation fee." Accordingly,
I conclude that the Respondent's discharge of Bratcher did
not violate Section 8(a)(3) or (1), and that this allegation
should be dismissed.
C. Paul Driskell
Driskell is a sheet metal worker and welder. He was em-
ployed by the Respondent, from October 1973 for a period
at the Baxley site, then in its Savannah shop, and from
April 1975 at Baxley again. He was assigned to putting
louvers on the outside of a building on the site, and occa-
sionally to repairing a Delta Metals truck. Bratcher was
not Driskell's foreman, and Driskell was not involved in
the Bratcher-Roulin-Henry incident in any way whatso-
ever. he heard about it for the first time from Bratcher as
they and other employees left the site at the end of the
workday on March 8.
Driskell testified as follows regarding an alleged occur-
rence two days after that incident, on the afternoon of
March 10: General Foreman Gresham sent for Driskell
and told him he was going to have to fire Driskell. Driskell
asked why. and Gresham said. "for telling Red [Bratcher]
what to do." Driskell protested that he had not told
Bratcher to do anything. but Gresham said, "the Chief in
Savannah said to fire you." Driskell repeated his denial
and Gresham asked him to work Friday, March II 1, to fin-
ish out the week.
At the close of the workday, Friday, March 11I, Driskell
took Union Steward Bashlor with him to see Gresham.
Driskell asked Gresham to repeat to Bashlor what he had
said about the reason he was letting Driskell go, but Gresham
refused, saying that once was enough. Gresham handed him
a separation notice reading "Reduction in Force layoff." 12
I "(onrinenal Woien l hbel ('ompanv. Incorporated. 160 NLRB 1430
{1966): Smith Industrries, Inc. 164 NLRB 499. 506 (1967). Classe Ribhon
(ompani. In . 227 NLRB 406 (1976). See also N. L R B. v Suniland Furni-
rure C(', 387 F 2d 123 (CA. 5. 1967); Boeing Airplane Company v. N ..R. B.
217 F 2d 369 (CA. 9. 1954); N L.R.B. v. Tennessee Coach Comnpani. 191
I 2d 546 (C A 6. 1951).
l ' Conrienirnual I4'en label ('o, supra. at fn. I. Cf International Brother
hood lf Electrilwal rAcrier Local No .196 ((entral Telephone Companry, 229
NL RB 469 (19771. I do not consider the cases relied on by the General
('ounsel to be apposite Thus. Procon, Incorporured. 161 NLRB 1304 (1966),
.4mno Electric, 152 NIR B 781 (1965). and AKey Cits Mechanical Contractor.,
In . 227 NI RB 1884 (1977). all involved employee complaints, to manage-
ment or union officials, that contract commitments were being violated by
the assignment of work to members of one union rather than another, there-
bs creating a jurisdictional dispute. None of those factors are present in this
case.
2 Based on Bashlor's credited testimons
1667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Superintendent Tyner also made the decision to
let Driskell go. Tyner testified he told Gresham on March
8 that he had decided to lay Driskell off for lack of work.
Tyner testified he was not aware of any rumor or report,
and no one ever told him, that Driskell was involved in the
Bratcher indident; that lack of work was the only reason
for Driskell's termination: and that Driskell would have
been eligible for a recall when work was available if he had
reported to the union hall and had his name put on the
recall list.'3
It was Tyner's testimony that the Respondent had been
engaged in a reduction in forces companywide and at the
site since the first of the year, and that Zeigler had told him
a week or two before March 11 that he was still about six
men over budget at the site and he needed to lay off. When
Zeigler says to lay off, Tyner said, he lays off.
According to Tyner, he selected Driskell for layoff
March 8, because he had the worst attendance record of all
employees still on the payroll; although absenteeism and
tardiness is not the only reason employees are ever selected
for layoff, he said, most previous layoffs had been de-
termined on the basis of attendance records and he had
already laid off those who had worse attendance records
than Driskell. Steward Bashlor supported Tyner's testi-
mony to the effect that General Foreman Gresham had
announced to the employees in a meeting and individually
that absenteeism and tardiness would have a lot to do with
selections for lay off, and that Driskell had a record of
absenteeism and tardiness.
The Respondent presented the following figures of the
Company complement generally, and at Baxley, beginning
with the week ending February 6, 1977:
Date Company- Increase/
wide Decrease
Payroll Clerk Patricia Zipperer testified that Tyner consult-
ed her about the attendance records of sheet metal v\orkers
to be laid off, in Driskell's case for the 10-week layoff period
ending March 4, 1977.
In support of its contention that Driskell was selected for
layoff because he had the worst attendance record at the
time and that most previous layoffs had been determined
on the basis of attendance records, the Respondent put in
evidence a chart listing the names of all of its employees at
Baxley with the number of hours worked by each during
each of the 10 weeks ending March 4, 1977. The following
information is taken from that chart. The third column
represents the number of employees with the worst atten-
dance records who were not laid off.
Date Emps.
laid off
2/11 Cox
Harbin
Brantley
Morris
Ne Smith
Sharpe
2/25 Bell
W. Brisendine 15/
3/4 Page
Butler
Reth
Fowler
No. Emps.
1
1
8
9
12
19
1
3
8
11
12
15
2/6
2/13
2/20
2/27
3/6
3/13
As of 3/25
130
122
120
114
98
96
99
-2
-8
-2
-6
-16
-2
+3
The chart also shows that as of March 4. one full workday
before the decision was made on March 8 to let Diskell go.
one employee who was not laid off, C. Gresham. had worked
less-only 318- /2hours-than Driskell, who had worked 342-
1/, hours, during the preceding 10 weeks.
The above figures, put in evidence by the Respondent,
demonstrate that there was no reduction in force during
the last week Driskell was employed, and that neither Dris-
Baxley Increase/
site only Decrease
31
25
25
22
18
20
21
-1
-6
0
-3
-4
+2
+1
The above figures as to the Baxley site refer to sheet
metal workers only, but the companywide figures refer to
sheet metal workers, roofers, and office employees. 4
1 Ilyner testified that an employee named (George Arnold (s.ho was not
shown to have been employed at the Baxles sile) had the worst absentee
record of all the Respondent's employees and had been laid off three times
because of that: that after each layoff. Arnold got In touch with Tlner or
the union hall and was rehired, most recentl, In August 1977 )rlskell testi-
fied that no one at Delta Metals told him he could be recalled to work ind
he did not understand that he could be, .lthiugh his separation notice read
"layoff" and he claimed this as the reason in his application foi uncmplo>-
ment compensation: that he never returned to the Cormpalrn to seek em-
ployment as it was not his job to do that. it was the unioln representatise's
job to place him; that he did not ask any union representative to place him
with Delta Metals: and that he called Business ,egent Lynn Lee about Sep-
tember 1, 1977. and was immediately placed on a job.
4 Payroll Clerk Patricia Zipperer testified thut the Respondent vorked
approximately five different jobsites during the period covered
I he cha rt lists W. Brisendlne as quit laid off 2 25 77"
Date
2/6
2/13
2/20
2/27
3/6
3/13
As of 3/25
1668
DELTA METALS. INC.
kell nor any other of the layoffs were selected because their
attendance records were the worst at the time. The comple-
ment figures for the Baxley site for March 13 show an
overall increase of three sheet metal workers at Baxley dur-
ing the last week Driskell worked there. The Respondent
offered no explanation of this, nor of the fact that the com-
plement rose again the following week. Clearly. even if
Bratcher was replaced by another foreman before the week
was out, there would have been a complement of only 17 if
Driskell had been laid off as part of the reduction in forces.
Instead, 3 men were added to the site payroll, making a total
of 20. From that, and from the addition of a fourth man
the following week. one must conclude that the reduction
in forces was over March 6. before Driskell was let go.' 6 I
therefore find that Driskell was not terminated for the rea-
sons testified to by Superintendent Tyner and advanced by
Respondent.
Why, then, was Driskell terminated?
It is clear that, as in the Bratcher discharge, neither hos-
tility toward the Union nor intent to discourage member-
ship in the Union played any part in the termination of
Driskell.
The only other reason suggested is that advanced by the
General Counsel based on Driskell's testimony that Gener-
al Foreman Gresham told him on March 10 he was fired
"for telling Red [Bratcher] what to do." and Gresham's
failure, without explanation by the Respondent, to testify.
leaving Driskell's testimony to this effect undenied. In
many situations like this, an employee witness can be
credited based on an inference that the supervisor would
not have disputed him if he had testified."7 However. credi-
bility resolutions must be made on the basis of the circum-
stances of the case; credibility cannot be resolved by
adherence to rigid rules. Here, I cannot credit Driskell.
even in the absence of testimony by Gresham. because
Driskell's demeanor for staunch reliability was not so im-
pressive, in the absence of an) supporting evidence. as to
overcome the improbability that Gresham made such a
statement or that that was the reason for Driskell's termi-
nation.'i Thus, it is undisputed that Driskell did not tell
1' I d.o not consider materil.l tile flui rcs sho ins ne il l the compa.ln lid.
complement fell by tio- during the ecek of March 13, as those figurec
encompassed roofers and clerical emplosees as, ell as sheet metal 'orkers.
and as Superintendent Tainer sa t)rinsell was laid oft a, part of a cut-back
at the Baxley jobsite ordered hb Zeigler In anr ce-nt. the comprlanllde
complement also rose shortis after Drlsel! as termiilnalted.
" See MAariin Lutherr Ai, .I r urini (wcir,. 231 NI.RB 1 I1977)
Bratcher what to do and that he was not involved in the
Bratcher incident in any way whatsoever. and did not even
know about it until some time afterwards. Moreover, there
is no basis for either Gresham or Superintendent Tyner
(who made the discharge decision) believing that he was
involved. The record does not indicate that Bratcher and
Driskell were associated in any way except that, along with
others, they: were employed by the same employer on the
same site and probably were members of the same
Union.'' Bratcher and Driskell did not work together:
Driskell was not a member of Bratcher's work crew, but
did a different kind of sheet metal work in another
foreman's crew. As a working foreman, Bratcher's position
presumably was superior to that of Driskell who was a
rank-and-file sheet metal worker; it would seem the more
natural, therefore, to assume that Bratcher would tell Dris-
kell what to do instead of the other way round. Nor were
the two of them shown to be relatives or friends, or even to
share the same carpool or any offtime activity.
In all these circumstances, I cannot find that Gresham
made the statement attributed to him by Driskell or that
Driskell was terminated for the reason advanced by the
General Counsel.
This situation is. then, an unusual one in that none of the
reasons advanced for the termination of Driskell are sup-
ported by a preponderance of the credible evidence on the
record as a whole, and that the record does not establish
why he was terminated. It is, of course, the General Coun-
sel's burden to prove that the termination was unlawful. As
he has failed to carry that burden, the complaint must also
be dismissed as to Driskell.
Upon the foregoing findings of fact, conclusions of law,
and the entire record. I hereby issue the following recom-
mended:
ORDER 20
the complaint is dismissed in its entirety.
I)rilkell. rid Bratsher s, well. were especia.ll unheiheiahle in lestif -
ing. conlra.l to Steslird Bai hl or', mnrre credible lestirmlni. that there were
no grrie;ani cc pr ediie, ,iilaible for protesting their terminatllin
Ihere is .' s\pelt( c idellce that I)riskell was a member of tle t nmlin.
but Supciintendent I netr indicated that all the Respnrdenl' sire emplos
ees were members
-I" In the even nio cxc. epon, are filed as provided hs Sec 102-46 of Ihe
Rules and Reeiliat on of the National L.abor Relai ons Board, the findings.
conclusilon . ind rte n rinicided Order herein shall. :is prosided in Sec
102 4.8 ,f the Rulei, i.lln ReKulationrs . be adopted hi the Board iand become
its filding,. onl l lUq I, ind (Order. and ill sobjection, thereto shall he
deeme d ti : .t l purp-,'s
1669