Desert Construction

National Labor Relations Board - Board Decisions

Sep 22, 1982

308 N.L.R.B. 923 (N.L.R.B. 1982)

923
308 NLRB No. 137
DESERT CONSTRUCTION
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
1 All dates herein refer to the year 1990 unless otherwise indicated.
Desert Construction, Inc. and Robert William
Northcutt. Case 28–CA–10361
September 22,1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 20, 1992, Administrative Law Judge Gor-
don J. Myatt issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We agree with the judge that the Respondent did not
violate Section 8(a)(1) of the Act by discharging em-
ployee Northcutt. In adopting the judge’s conclusion,
we find that the General Counsel failed to establish a
prima facie case that Northcutt’s protected activity was
a motivating factor in the Respondent’s action. The
General Counsel argues in his exceptions that
Northcutt’s discharge shortly after his assertion of
what he believed to be a contract right demonstrates
that this protected activity prompted the action against
him. We agree with the judge, however, that Harmon,
the Respondent’s president, did not decide to discharge
Northcutt when he was informed of that matter, but
rather subsequently when he was told about
Northcutt’s continuing performance and attitude prob-
lems. We also note that, prior to Northcutt’s engaging
in protected activity, he had been selected for layoff
because he was identified as one of the Respondent’s
weakest employees and that the layoff was not alleged
to be unlawful.
At the hearing, the General Counsel also relied on
statements made by Harmon to Northcutt following his
discharge as indicative of unlawful motivation. Ac-
cording to Harmon’s credited version of the incident,
Northcutt returned to the office complaining that his
paycheck did not include the pay differential for per-
forming jackhammer work. After Harmon handed
Northcutt a $20 bill to cover the differential, Northcutt
continued to argue. Harmon became angry and told
Northcutt to get out. He further stated that he had been
abiding by the union contract for over 30 years, was
still a dues-paying member, and did not need anyone
to tell him how to run a business or comply with the
contract. He again asked Northcutt to leave and went
back into his office. We find that these remarks, when
viewed in the larger context of this case, are insuffi-
cient to support an inference that Harmon’s earlier
decison to terminate Northcutt was motivated by his
assertion of a perceived contract right.
Further, even assuming that the General Counsel has
established a prima facie case of improper motivation,
we find that the Respondent has demonstrated that it
would have discharged Northcutt in the absence of his
protected activity. As the judge found, Northcutt was
not a satisfactory employee. He took longer than re-
quired to complete his duties, failed to follow instruc-
tions, and his coworkers complained about working
with him because of his constant complaining and neg-
ative attitude. Before his layoff, he had received four
oral reprimands for standing around idly at jobsites and
work rule infractions. The judge also found that Duran,
the general superintendent, refrained from terminating
Northcutt earlier only because he was aware of
Northcutt’s social relationship with Mayorga, who, as
the former general superintendent, had hired Northcutt
and who by the time of the discharge held the second
highest position in the Respondent’s organization.
When he allowed Northcutt to return to work from the
layoff, Mayorga told the employee that his perform-
ance and attitude would have to improve, but
Northcutt’s work problems continued. Under these cir-
cumstances, we conclude that the Respondent has ef-
fectively rebutted any prima facie case of unlawful
motivation in its decision to discharge Northcutt.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.2
Cornele Overstreet, Esq., for the General Counsel.
Dennis E. Simmons, Esq. (Simmons, Madson & Snyder), of
Las Vegas, Nevada, for the Respondent.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On a
charge filed by Robert William Northcutt, an individual,
against Desert Construction Inc., the Regional Director for
Region 28 issued a complaint and notice of hearing on July
18, 1990.1 The complaint alleges that Respondent discharged
Northcutt on May 4 because the employee asserted a claim
for payment of wages for work performed at one of Re-
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 When Northcutt was hired, Mayorga made a specific request at
the union hall that Northcutt be dispatched to the Respondent.
3 In March 1989, Mayorga was promoted to the position of esti-
mator for the Respondent. As such, he became the second highest
official in terms of managerial authority. Dan Duran was hired to
succeed Mayorga as general superintendent at that time.
4 The unrefuted testimony indicates that Harmon never spoke di-
rectly to employees at the jobsites about their work. He would ob-
serve and then relay instructions to the superintendent to take correc-
tive action.
spondent’s jobsites. It is alleged that this conduct violated
Section 8(a)(1) of the National Labor Relations Act (the
Act). Respondent filed an Answer in which it admitted cer-
tain allegation of the complaint, denied others, and specifi-
cally denied committing any unfair labor practices.
A hearing was held in this matter on October 16 and 17
in Las Vegas, Nevada. All parties were represented by coun-
sel and afforded full opportunity to examine and cross-exam-
ine witnesses and to present material and relevant evidence
on the issue. Briefs were submitted by the parties and have
been duly considered.
On the entire record in this matter, including my observa-
tion of the witnesses, and upon consideration of the briefs,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Nevada corporation engaged in the build-
ing and construction industry as an underground electrical
contractor. Respondent maintains an office and its principal
place of business in Las Vegas, Nevada. During the 12-
month period preceding the issuance the complaint, Respond-
ent purchased and received goods and materials valued in ex-
cess of $50,000 directly from suppliers located outside the
State of Nevada. Accordingly, I find the Respondent is, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Laborers’ International Union of North America, Local
Union No. 872, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of Act.
A. Northcutt’s Hiring and Job Duties
The Charging Party (Northcutt) began his employment
with the Respondent on January 3, 1989. He was hired by
Tony Mayorga, Respondent’s then general superintendent.
The undisputed testimony indicates that Northcutt became
personally acquainted with Mayorga through the latter’s
mother, who was the girlfriend of Northcutt’s father-in-law.
As a result of this relationship, Northcutt assisted Mayorga
in performing some construction work on Mayorga’s home
and Mayorga offered to get Northcutt a job with Respond-
ent.2
Northcutt was employed by the Respondent as a laborer.
Respondent’s employees were classified as laborers, opera-
tors and electricians, and each category of employees was
represented by a union whose members worked in that par-
ticular trade. Northcutt testified that sometime in May 1989,
Mayorga assigned him to operate a backhoe on a job. Ac-
cording to Northcutt, he was told by Mayorga that if he
learned the skills of operating the equipment, Mayorga would
see about getting Northcutt into the Operating Engineer’s
union. Northcutt stated thereafter he operated a backhoe on
a daily basis. When confronted with the fact that his time-
cards did not indicate he operated a backhoe on a daily basis,
Northcutt acknowledged that he did not do so. Nevertheless,
he insisted that he operated the equipment on ‘‘numerous oc-
casions.’’
Mayorga’s testimony indicated that after he hired
Northcutt, he did assign the employee to operate a backhoe
at jobsites on occasion while he was the general superintend-
ent.3 According to Mayorga, he did so because the Northcutt
possessed a cass I license which would permit him to drive
a drill rig. Mayorga told Northcutt that if he learned all the
operator’s skills on the equipment, Mayorga would see if
Northcutt could get in the Operator Engineers’ union.
Mayorga further stated he advised Northcutt to practice on
the equipment after hours at jobsites or on the weekends. Ac-
cording to Mayorga, Northcutt did neither and failed to dem-
onstrate the skills necessary to operate the equipment produc-
tively.
B. Northcutt’s Performance Prior to the Layoff
Northcutt testified that during the time he was employed
by Respondent, he never received a written reprimand con-
cerning his performance on the job. He acknowledged, how-
ever, that he was not aware of any other employees receiving
written reprimands from management. Northcutt admitted
that on one occasion he received an oral reprimand from
Mayorga because he and another employee were seen sitting
in a truck at a jobsite drinking coffee.
Contrary to Northcutt’s testimony, the testimony of Re-
spondent’s officials and employees indicate there were nu-
merous complaints about Northcutt’s performance and atti-
tude on the job. Harmon, Respondent’s owner, testified that
on several occasions he observed Northcutt standing around
and not working while at a jobsite. Harmon stated he was
driving by a jobsite approximately a month after Northcutt
was hired and observed the employee standing around doing
nothing while others were working. Harmon testified he
made it a practice to drive by jobsites during the course of
the workday to see how the work was proceeding. According
to Harmon, on this occasion Northcutt was still standing
around when he passed the jobsite and returned. Harmon
stated he first thought Northcutt was a state inspector be-
cause the employee was the only one not working. After
learning that Northcutt was an employee, Harmon instructed
Mayorga to deal with the matter.4 Harmon further testified
he observed Northcutt leaning on a shovel talking to a co-
worker at a jobsite in front of Ceasar’s Place on a subsequent
date. Although he could not recall the precise date, Harmon
stated it was shortly before the opening of the Mirage Ca-
sino. Again, according to Harmon, he instructed the super-
intendent to speak to the employee.
Mayorga testified that he spoke to Northcutt about his per-
formance on the job on several occasions after receiving in-
structions from Harmon to do so. Mayorga confirmed that he
reprimanded Northcutt and employee Coleman for standing
and talking for approximately 20 minutes in front of Ceasar’s
Place. He also spoke to the same employees about sitting in
925DESERT CONSTRUCTION
5 The payroll period ended at the completion of the workday on
Tuesdays. Since the layoff occurred on a Friday, Northcutt was seek-
ing his wages for the balance of that workweek.
the truck drinking coffee while at a jobsite. Mayorga further
testified that he observed Northcutt and another employee
riding in a truck together ‘‘scoping’’ (apparently making a
visual inspection) a jobsite. Mayorga stated he reprimanded
the employees as it was not necessary for two employees to
perform this task. Mayorga also stated that after he became
the estimator, Duran reported to him that other employees
were dissatisfied working with Northcutt. They objected to
Northcutt’s constant complaints and negative attitude about
the work.
Duran, described by Harmon and Mayorga as being ‘‘easy
going,’’ stated that when he became the general superintend-
ent, he knew that Northcutt had been initially hired by
Mayorga and he observed that Mayorga displayed favoritism
toward Northcutt. According to Duran, Northcutt was argu-
mentative, failed to follow instructions, took longer than
other employees to complete his tasks, and was always com-
plaining. Duran stated that he would have discharged
Northcutt because of his attitude and poor job performance,
but did not do so because of the personal relationship be-
tween Mayorga and Northcutt. Instead, he reported his obser-
vations and complaints about the employee directly to
Mayorga, since he felt that it was a matter to be handled by
Mayorga.
Raymond Duran, brother of the general superintendent,
worked as laborer for Respondent. He testified that while he
usually worked by himself on jobsite, he had occasion to
work with Northcutt on three or four jobs. According to R.
Duran, Northcutt was constantly complaining and was ‘‘mis-
erable about his work.’’ Placido Hernandez, currently an op-
erator but initially hired as a laborer, testified that when he
had occasion to work with Northcutt on jobs, Northcutt
would constantly complain about the work and was critical
about most of the equipment used by the Respondent.
C. The Layoff on April 20, 1990
In April 1990, Respondent’s volume of jobs began to slow
down and management made a decision to layoff some em-
ployees. Mayorga stated that in meetings with Harmon and
Duran, they decided to lay off employees who were the least
productive or who were ‘‘problem employees.’’ Duran rec-
ommended that Northcutt be one of the employees laid off
because of his poor attitude and job performance. Mayorga
agreed as he considered Northcutt to be one of the ‘‘weakest
links.’’ According to Northcutt, Duran notified him and an-
other laborer (Coleman) on April 19 at a jobsite that the two
employees would be laid off at the end of work the follow-
ing day. Duran told Northcutt that work was slow and he did
not know how long the layoff would last. Duran advised the
employees that the layoff could be ‘‘a week or longer.’’ The
next day after work, Mayorga spoke to Northcutt in his of-
fice in order to further explain the layoff to the employee.
The undisputed testimony indicates that Mayorga told
Northcutt that he was selected for layoff because he was be-
coming a problem to Duran and his coworkers on the jobs.
Mayorga also advised the employee that Harmon had ob-
served him loafing on jobs. Mayorga told Northcutt that he
had a bad attitude and he would have to ‘‘shape up or ship
out.’’ Mayorga further informed Northcutt that the layoff
would be for a week or two.
Northcutt testified that he did not receive a layoff slip,
which he stated was necessary to permit him to register at
the union hall, nor did he receive a check for work per-
formed after the end of Respondent’s payroll period.5
Northcutt spoke to Harmon who advised that he would get
back to the employee, but failed to do so. Northcutt called
the union office and spoke to a representative. According to
Northcutt, he was advised that he was not officially laid off
under the contract because he had not been given a layoff
slip. He stated he was told to report to work as usual the fol-
lowing Monday.
On April 23 (Monday), Northcutt appeared at Respond-
ent’s facility at 6 a.m. Duran questioned why the employee
was there and Northcutt stated he was there to get his full
wages and a layoff slip. He also asked if he were going to
receive showup time for that day, since he was not officially
laid off until he received a slip to that effect. Northcutt was
advised that he would have to wait until 9 a.m. to permit the
office staff to issue the layoff check and have it signed by
Harmon. Northcutt stated he left and went to the union hall
where he spoke with Kenneth Smith, business manager of
the Union. Smith stated, according to Northcutt, that he
would call Respondent and instruct them to give the em-
ployee 2 hours showup time plus an hour for having to wait
until 9 a.m. to receive his check and layoff slip. Northcutt
stated he received his check and layoff slip at approximately
11 a.m. It included 2 hours of showup time and an additional
hour’s wages. The layoff slip was dated April 23, although
the layoff was the preceding Friday. It indicated that
Northcutt was laid off as a result of a ‘‘reduction in force.’’
(G.C. Exh. 4.)
Harmon acknowledged that Northcutt had returned to the
facility the Monday after the layoff. He stated the payroll
clerk placed a check for Northcutt on his desk and he merely
signed off on it. Harmon denied having a conversation that
morning with any representative from the Union about
Northcutt’s showup time or the failure to give the employee
a layoff slip.
Smith, the union business manager, was called as a wit-
ness. He also denied having any conversation with Northcutt
at the union hall about the layoff. Smith stated he became
aware of the layoff at Respondent’s facility that preceding
Friday when he was advised by a business representative
(Duckworth) that there were problems regarding the layoff.
Smith denied he advised Northcutt that the layoff was not of-
ficial because the employee was not given a layoff slip at the
time. Smith further testified that it was the practice in the in-
dustry to give employees either verbal or written notification
of layoffs. Smith stated the contract did not require a layoff
slip, and he would not have told Northcutt to report to work
in the absence of receiving one.
The following Sunday, Northcutt telephoned Mayorga at
home to inquire about when the layoff would end. According
to the testimony of Northcutt, Mayorga stated he had heard
that Northcutt and Coleman were going to sue Respondent
because of the layoff. Northcutt denied any such intentions.
He stated that Mayorga then instructed him to report to work
the next morning.
While Mayorga acknowledged he had a telephone con-
versation with Northcutt on Sunday, he denied asking the
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 While all of the jobsites were listed by geographical location,
they were also designated by job numbers on Respondent’s records.
A list of current jobsites was kept posted by the timeclock to enable
the employees to indicate on their timecards where they had worked
during the day.
Duran testified Northcutt was assigned to work at a jobsite on
W. Charleston that day. Respondent’s records indicate Northcutt
worked at W. Charleston (#201) and Valley View (#212). R. Exh.
1(a).
7 Northcutt admitted that prior to this occasion, the employees had
always been paid on Friday afternoons when they returned to Re-
spondent’s facility from their respective jobsites. He stated he
brought up the matter of the paychecks at this time because he was
still doing laborer’s work and Mayorga had not followed through on
the promise to get him in the Operating Engineers’ union.
8 The contract required different pay scales for various types of
work performed by the laborer employees. For example, jackhammer
rates were 20 cents an hour more than the basic laborer’s rate. Al-
though Northcutt’s timecard showed he only performed jackhammer
work for 1-1/2 hours on April 30, he asserted that he was entitled
to the higher rate for the full workday on the days he used the jack-
hammer. In this instance, the amount he was claiming totaled $3.20.
employee whether he intended suing Respondent. According
to Mayorga, he decided to give Northcutt another chance to
work, hoping that the employee would ‘‘straighten up.’’
Mayorga stated he told Northcutt that when the employee re-
turned to work the next day, his attitude and job performance
had to improve. Mayorga further testified he recalled
Northcutt out of sympathy and did not discuss the matter in
advance with Harmon or Duran.
Harmon testified that he was not pleased with Mayorga’s
decision to recall Northcutt. Harmon stated he reprimanded
Mayorga because Respondent did not need to recall any of
the laid-off employees at that time. Duran also voiced his
displeasure over the recall of Northcutt to Mayorga. Accord-
ing to Duran, Mayorga said that Northcutt was instructed to
‘‘straighten up or be let go.’’
D. The Events Leading to Northcutt’s Discharge
Northcutt testified that when he returned to work on April
30, he was assigned to a jobsite at Spring Valley and
Mountainview.6 He stated that he was performing laborer’s
work. Sometime during the week, according to Northcutt,
both Duran and Mayorga questioned his use of a particular
dumptruck as opposed to using another truck for the same
purpose. When Northcutt stated the other truck was unsafe,
he was informed that it had been repaired.
On the morning of May 4, when Northcutt reported to
work, he had in his possession a photocopy of a section of
the collective-bargaining agreement that related to the pay-
ment of employees’ wages. (G.C. Exh. 6, art. XIII, sec. 4,B.)
The undisputed testimony indicates that Northcutt was dis-
cussing the provision with a coworker (Meegan) in the yard
prior to leaving for a jobsite. Duran observed them and en-
quired whether they were talking about something that he
should know. Northcutt replied no and the employees left for
their job assignment.
Northcutt testified he and Meegan were working at a job-
site with an operator and went to a nearby 7-Eleven store for
lunch. Northcutt stated that Duran came to the 7-Eleven
looking for the employees and he showed Duran the copy of
the contract provision. Northcutt interpreted this provision to
require the Respondent to give the employees their pay-
checks directly at the jobsite one-half hour before quitting
time. Northcutt asked Duran if the employees were going to
receive their checks at the jobsite that afternoon.7 Duran
promised to look into the matter and instructed Northcutt to
work with another laborer and an operator who were as-
signed to install crossings. Northcutt further testified that
Duran later returned to where Northcutt was working and
took him to another jobsite where Duran instructed him to
install a ‘‘loop pocket.’’
According to the testimony of Northcutt, he was picked up
by an operator in one of Respondent’s trucks at quitting time
and driven to the shop. There, Harmon met him and stated,
‘‘Here’s your checks, you are paid up. Don’t fill out a time-
card.’’ Northcutt further stated that Harmon said he had been
in the union for 30 years and did not need anyone telling
him what the union rules were. Northcutt complained that his
check did not contain the pay rate he should have received
for performing jackhammer work the prior Monday and
Tuesday.8 Northcutt said Harmon then called him stupid for
not putting the job category on his timecard. According to
Northcutt, Harmon handed him a $10 bill and said, ‘‘Fuck
you, here’s $10. Get the fuck out of here and I don’t want
to see your fucking face again.’’
The testimony of Respondent’s witnesses concerning the
discharge differed from that of Northcutt in several material
respects. Duran stated that on May 4, he assigned Northcutt
to install a loop pocket at a site. According to Duran, this
should have taken no more than 3 hours to complete. When
he drove by the site he failed to see Northcutt, nor did he
see the other employees assigned to a nearby jobsite. Duran
then went to a 7-Eleven in the area where he discovered the
employees. There, Northcutt presented Duran with the copy
of the contract provision and said his paycheck should be at
the jobsite 1 hour before quitting time. Duran stated he told
the employee that he would try to get the paycheck to the
jobsite. He instructed Northcutt to assist the operator and
Meegan in laying conduit at the nearby site and then return
to his original jobsite and complete the installation of the
loop pocket.
Duran called the office to inquire about the paychecks and
was told they had not been signed because Harmon had not
yet returned from his trip to Laughlin. Shortly thereafter,
Duran received a call from Harmon on the cellular phone
asking about the problem with the paychecks. According to
Duran, when he explained the Northcutt was insisting the
contract required the employees receive their paychecks at
the jobsite, Harmon stated Northcutt was misinterpreting the
provision. Harmon said the requirement only applied to em-
ployees who reported directly to jobsites for work rather than
to employees who reported to the shop and were driven to
and from the jobsites in company vehicles. Harmon told
Duran there was no problem and that he would arrive at the
shop in time for the employees to receive their paychecks as
usual.
After Harmon assured Duran there was no need to be con-
cerned about the matter of the paychecks, Duran began to
voice his complaints about Northcutt’s performance and atti-
tude. He stated he did not know what to next expect from
Northcutt. He mentioned that Northcutt was always com-
plaining about the work or the conditions. Also that the em-
ployee had not completed the job to which he had been as-
927DESERT CONSTRUCTION
9 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
signed that morning, even though he had been working at the
site long enough to have finished it. Harmon responded by
saying, ‘‘We can not live with this.’’ Harmon then told
Duran that he would not have to be concerned about
Northcutt any longer. Harmon instructed Duran to bring
Northcutt to the office at quitting time and said he would
give the employee his final paycheck and terminate him.
Harmon testified that he had been in Laughlin since the
prior Tuesday on business and was returning in his camper
when he received word from his office on the cellular phone
of problem about the paychecks. Harmon stated he called
Duran while in route and was told the particulars of the mat-
ter. He stated that when Duran then complained Northcutt’s
poor attitude and work performance, he instructed the super-
visor to bring Northcutt to the office and he would terminate
the employee.
Harmon further testified that after he terminated Northcutt
that afternoon, the employee returned to shop and com-
plained about not receiving pay for performing jackhammer
work. Harmon stated he took out his wallet to search for a
$10 bill but discovered he did not have one. He then gave
Northcutt a $20 bill to settle the pay differential, but the em-
ployee continued to argue. Harmon acknowledged he then
became angry and told the employee to get out. He stated
he told Northcutt that he had been abiding by the union con-
tract for over 30 years and was still a dues-paying member.
Further, that he did not need anyone to tell him how to run
a business or how to comply with the union contract. Har-
mon testified he swore at Northcutt and told the employee
to ‘‘hit the frigging road.’’
Rodney Briggs, an estimator for another company that
shared the same office space with the Respondent, testified
that he overheard Harmon talking in an angry voice in the
shop on May 4. According to Briggs, it was unusual for Har-
mon to display anger in the shop. Briggs left the office area
and went down the stairs to the shop, when he observed Har-
mon give Northcutt a $20 bill. Briggs testified he was ap-
proximately 20 feet from them at the time. Briggs also testi-
fied he was familiar with the problems Respondent was ex-
periencing with Northcutt because his desk was located next
to Mayorga’s in the office. He stated that during that past
week, Mayorga confided in him that Mayorga regretted hav-
ing recalled Northcutt and that the employee was not ‘‘work-
ing out.’’
Concluding Findings
The General Counsel contends that Northcutt was dis-
charged for engaging in protected activity when the em-
ployee attempted to assert a right under the collective-bar-
gaining agreement between the Respondent and the Union.
Further, the fact that Northcutt was mistaken about the appli-
cation of the contract provision to his circumstances was ir-
relevant and did not remove him from the Act’s protection,
since he was ‘‘honest and reasonable’’ in the assertion of his
belief that the wage provision applied to the Respondent’s
employees. (Citing NLRB v. City Disposal Systems, 465 U.S.
822 (1984).) Thus, under the Board’s Wright Line9 doctrine,
the General counsel contends a prima facie case has been es-
tablished showing that Northcutt was discharged for engag-
ing in protected activity, and Respondent has failed to dem-
onstrate that the employee would have been discharged even
in the absence of the protected conduct.
Among other things, Respondent argues that the facts fail
to make a prima facie showing that Northcutt was discharged
for because he invoked the contract provision regarding pay-
ment of wage at the jobsite. In essence, Respondent argues
that Northcutt was terminated for unsatisfactory job perform-
ance and constantly expressing a negative attitude about his
work. Further, that had it not been for the employee’s special
relationship with Mayorga, he would have been terminated
much sooner by his immediate supervisor (Duran).
Before turning to the ultimate question presented here, it
is necessary to resolve the material differences that exist in
the testimony of Northcutt and the witnesses for the Re-
spondent. Having observed all of the witnesses and having
taken into account the evidence contained in the record, I
find that the testimony of Northcutt is not trustworthy unless
corroborated by other witnesses or supported by independent
record evidence. Northcutt displayed a marked tendency to
distort and exaggerate in his statements and, in some in-
stances, make up events out of whole cloth.
For example, Northcutt stated he went to the union hall
and spoke to Smith about receiving showup time the Monday
following the layoff, but Smith denied seeing or talking at
all to the employee. Another example of Northcutt’s willing-
ness to distort his testimony is reflected in his statement that
he operated a backhoe on a daily basis. When confronted
with the fact that his timecards failed to indicate he regularly
performed this task, he changed his testimony to indicate he
did so on ‘‘numerous occasions.’’ Finally, Northcutt testified
that he had only received one oral reprimand during the
course of his employment, but the testimony of Harmon and
Mayorga, which I credit, indicates he was orally reprimanded
on four different occasions: two as a result of Harmon ob-
serving him standing around at jobsites; and two as a result
of Mayorga observing him commit infractions of Respond-
ent’s work rules. Accordingly, I find that Northcutt was not
a credible witness and I reject his testimony where it con-
flicts with the testimony of other witnesses or is unsupported
by other evidence in the record.
On the basis of the credited testimony, I find the record
clearly establishes that Northcutt was indeed an unsatisfac-
tory and disgruntled employee. He took longer than required
to complete his job assignments. He constantly complained
about the work and the conditions under which he had work;
to such an extent that his fellow employees complained to
their supervisors about working with him. Contrary to the ar-
guments of the General Counsel, I do not find that Respond-
ent condoned Northcutt’s poor performance and attitude.
Rather, I credit the testimony of Harmon that since Mayorga
hired Northcutt and there was a personal relationship be-
tween them, he was waiting, within reasonable limits, for
Mayorga to resolve the problem. I also find that Duran
would have discharged Northcutt long before the employee
was actually terminated by Harmon, but did not do so be-
cause of the relationship between Mayorga and Northcutt, In
these circumstances, I do not find that Respondent’s manage-
ment approved, sanctioned or overlooked Northcutt’s failures
as an employee in the plain sense of the meaning of the term
‘‘condone.’’ Rather, I find Respondent’s top management of-
ficial and its first line supervisor were refraining from taking
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
action against Northcutt in order to permit Mayorga to come
to grips with realization that Northcutt was an undesirable
employee who should be terminated.
Turning to the question of whether Northcutt’s discharge
violated the Act under these circumstances, I conclude that
it did not. In this regard, I find the General Counsel’s appli-
cation of the Board’s Wright Line analysis to be flawed. It
is evident that the Wright Line issue here is not one of pre-
text, but one involving dual motivation. Therefore, the initial
question that must be answered is whether the General Coun-
sel has established a prima facie case which shifts the burden
to the Respondent to persuasively demonstrate it would have
discharged the employee even in the absence of the protected
conduct. The General Counsel appears to contend that his
evidence must be viewed in isolation, without regard for
other reasons asserted by Respondent for the discharge, in
determining whether he established a prima facie case show-
ing that the protected conduct was a motivating factor in the
discharge. Since the invocation of the wage provision by
Northcutt was the genesis of the phone conversation in which
Harmon made the decision to fire the employee, the General
Counsel argues that a prima facie case has been established
under Wright Line.
In my judgment, this analysis involves a far too con-
strained view of the facts. As the Court of Appeals for the
Second Circuit stated in a recent case involving this very
question, ‘‘[I]f the employer elects to offer evidence rebut-
ting the General Counsel’s prima facie case (whether or not
framed as an affirmative defense), the ALJ is entitled to as-
sess the entire record in determining whether the prima facie
case remains proven.’’ Holo-Krome Co. v. NLRB, 954 F.2d
108 (2d Cir. 1992). (On the Board’s petition for rehearing.
Petition denied.)
While the facts here establish there was only a single
phone conversation between Harmon and Duran, it is clear
the conversation dealt with two separate events. Duran first
explained about Northcutt’s interpretation of the wage provi-
sion and his demand for receipt of his paycheck at the job-
site. When Harmon said the employee was mistaken about
the provision and that he would arrive at the shop in time
for the employees to be paid, there was no indication at that
point that a decision was made to fire Northcutt. It was not
until Duran then went on to complain about Northcutt’s poor
job performance and attitude that Harmon decided Respond-
ent ‘‘could no longer put up with the employee. This con-
fluence of events resulting in the decision to discharge
Northcutt, viewed in the context of the employee’s known
history for poor work performance and negative attitude
about his job, causes me to conclude that the General Coun-
sel has failed to establish a prima facie case demonstrating
that Northcutt’s protected activity was a motivating factor in
the discharge decision.
Accordingly, I find the General Counsel has failed to es-
tablish by a preponderance of the creditable evidence in the
record that Northcutt was discharged for reasons that violate
the Act.
CONCLUSIONS OF LAW
1. The Respondent, Desert Construction, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Laborer’s International Union of North
America, Local Union No. 872, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent did not engage in conduct which vio-
lated Section 8(a)(1) of the Act when its owner discharged
employee Robert Northcutt on May 4, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The complaint herein is dismissed in its entirety.