H. B. Zachry Co.

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1143 (N.L.R.B. 1977)

H. B. ZACHRY COMPANY
H. B. Zachry Company and Local Union 384 of the
International Brotherhood of Electrical Workers.
Cases 16-CA-6824, -2, and 16-CA-6845
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 17, 1977, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).2
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 Respondent, H. B. Zachry
Company, Muskogee, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also adopt pro forma the Administrative Law Judge's findings with
respect to the allegations to which the General Counsel did not except.
2 See, generally, Isis Plumbing 4 Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on February 14, 15, 16, 17, 18, 22, and 23, 1977, at
Muskogee, Oklahoma.
The original charge in Case 16-CA-6824 was filed on
October 5, 1976. The first amended charge in Case 16-CA-
6824 was filed on October 13, 1976. The original charge in
Case 16-CA-6824-2 was filed on October 14, 1976. The
charge, first amended charge, second amended charge,
third amended charge, and fourth amended charge in Case
16-CA-6845 were filed on October 19 and 21 and
November 2 and 17, 1976, respectively.
The order consolidating Cases 16-CA-6824, 16-CA-
6824-2, and 16-CA-6845 and the consolidated complaint
in this matter were issued on November 18, 1976. The
issues concern whether Respondent has violated Section
8(aX3) and (1) of the Act by discharging seven employees
in September and October 1976 because of their union and
protected activities, and has violated Section 8(aXI) of the
Act by discharging three supervisors because of their
refusal to engage in unlawful conduct violative of the Act,
and whether Respondent has violated Section 8(aX)1) of the
Act by certain other conduct.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and
admissions therein.
H. B. Zachry Company, Respondent, is, and has been
at all times material herein, a corporation duly organized
under and existing by virtue of the laws of the State of
Delaware and is engaged in the general industrial and
heavy construction business, and maintains its principal
office and place of business in San Antonio, Texas.
Respondent is engaged in the construction of a power plant
at Muskogee, Oklahoma, the only site involved in these
proceedings.
During a representative 12-month period, Respondent,
in the course and conduct of its business operations at
Muskogee, Oklahoma, purchased and received goods
valued in excess of $50,000, directly from suppliers located
outside the State of Oklahoma.
As conceded by Respondent and based on the foregoing,
it is concluded and found that Respondent is, and has been
at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
1
Local Union 384 of the International Brotherhood of
Electrical Workers is, and has been at all times material
The facts are based on the pleadings and admissions therein.
233 NLRB No. 160
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues; Supervisory Status 2
At all times material herein, the following named persons
occupied the positions set opposite their respective names
and have been and are now agents of Respondent acting in
its behalf and are supervisors within the meaning of
Section 2(1 1) of the Act:
O. H. Lampton, project manager; Douglas Schad,
general field superintendent; J. B. Garner, electrical
superintendent; Milton Tausch, assistant electrical superin-
tendent; John Null, electrical general foreman; Norman
Brown, instrumentation general foreman; Boudreau Bow-
den, electrical general foreman; Richard Bartley, electrical
foreman; Chester Farmer, electrical foreman; Darwin
Choate, electrical foreman; Benjamin Weaver, electrical
foreman; Billy D. Grissom, electrical foreman; and John
Thornton, chief security guard.
B. The Facts and Conclusions3
H. B. Zachry Company, Respondent, around May I,
1974, commenced construction of two units of an electrical
generating station for Oklahoma Gas & Electric Company
at Muskogee, Oklahoma, referred to herein as the OGE
project. In the construction of such project Respondent's
employee complement reached approximately 1,075 em-
ployees in all crafts of the construction industry.
There is no evidence that Respondent considered union
membership or the lack thereof in the determination of
employees hired for the project. 4
By around August 9, 1976, the OGE project had
progressed to the state that Respondent went into a startup
schedule in order to establish an orderly sequence for
starting the various pieces of equipment and system
necessary to making the first unit of the project operation-
al. The aspects of the electrical work to be performed
became more important at this stage.
The major issues in this case involve the conduct of
Respondent by its supervisors as related to certain foremen
and employees in the performance of electrical work under
the supervision of Electrical Superintendent J. B. Garner.
The breakdown of authority and supervisory responsibility
concerning the employees performing work under Garner
may be described as follows. The top echelon of authority
and responsibility for the project rested in O. H. Lampton,
project manager. Assisting Lampton was Douglas Schad,
general field superintendent, whose authority and responsi-
2 The facts are based on the pleadings and admissions therein, and
statements narrowing the issues made at the hearing. The General Counsel
in his brief removed the issue of agency or supervisory status of Gary Bishop
who had been alleged as a supervisor and agent.
3 The facts are based on a composite of the credited aspects of the
testimony of all witnesses, exhibits, and stipulations made at the hearing.
4 The General Counsel's brief refers to certain understandings between
Respondent and the Trades Council as to wages, etc. It appears that by
inadvertence he may have construed dialogue between counsel in the
opening statements at the trial as constituting a factual stipulation. I do not
construe such as a stipulation, and no facts thereto were introduced. In any
event, the details thereto are not important to the issues herein.
bility appeared slightly less than Lampton's but clearly was
above the craft superintendents'. 5 Thus, Lampton and
Schad may be said to have occupied positions at the top as
regards supervisory responsibility over superintendents and
lesser supervisors.6
Garner, who functioned under Lampton and Schad, was
over what appears to have been the electrical area. Under
Garner was Assistant Electrical Superintendent Milton
Tausch, and under Garner and Tausch were two electrical
general foremen, Null and Bowden. Under Electrical
General Foreman Null were four foremen, in positions
described as that of electrical foremen, who supervised the
work of crews of employees consisting of journeymen
electricians and helpers. Until October 14, 1976, the four
electrical foremen under Null were Wayne Matthews,
Chester Farmer, Darwin Dale Choate, and Billy D.
Grissom.7 On October 14, 1976, Farmer, Choate, and
Grissom were fired and other persons were made electrical
foremen in their places. Thus, as an example, Richard
Bartley replaced Grissom as electrical foreman, and Ben
Weaver replaced Darwin Dale Choate around October 14
or 15, 1976. It appears that Electrical General Foreman
Bowden had three or four electrical foremen under his
supervision. It appears that three of the following four, or
that all four of the following named electrical foremen
worked under Bowden. The record reveals that Carl
Spangler, Joe Ussury, William Sparks, and James Foster
were electrical foremen; that Foster was an electrical
foreman over "wire pullers," and apparently worked under
Bowden.
Some of the issues in this case involve the conduct of
supervisors and employees who work with piping and
instrumentation. As to such supervisors and employees in
piping and instrumentation, similar to the electrical
employees, top management authority on the project was
vested in O. H. Lampton, project manager. Next in line of
supervision, as indicated, was Douglas Schad, general field
superintendent. Richard Bentley was Respondent's pipe
superintendent over piping and instrumentation. The total
number of employees under Bentley ranged around 120-
125. Bentley was over two general foremen, Yielding and
Norman (Sarge) Brown. General Foreman Yielding had
four foremen to supervise four crews. General Instrumen-
tation Foreman Norman (Sarge) Brown had, it appears,
one foreman, Lary Guest, who was over one crew. Lanny
Choate, an alleged 8(a)(3) violation in this case, worked on
Guest's crew.
Activity concerned with the organization of Respon-
dent's electrical employees for the Union, Local Union 384
of the International Brotherhood of Electrical Workers,
commenced in late August 1976. Employee Jim Spencer
initiated the efforts by contacting a friend who was a
5 Although Bentley's testimony indicated that he looked to Lampton as
his only supervisor on the job, I am persuaded that the total facts reveal this
line of authority. A different finding, however, would not affect the results in
this case.
6 The total number of employees on the project appears to range from
1,050 to 1,075. The project covered approximately 700 acres.
I The number of men on several of the respective crews appeared to
range as follows: on Dale Choate's crew - from 19 to 35, on Farmer's crew
- from I I to 20, on Grissom's crew - approximately 16.
1144
H. B. ZACHRY COMPANY
member of the IBEW. Around September 1, 1976, some of
Respondent's employees and foremen formed an organiza-
tional committee. The initial organizational committee was
composed of five persons. Such five members were (I)
Darwin (Dale) Choate-electrical foreman, (2) Chester
Farmer-electrical foreman, (3) William K. Choate-jour-
neyman electrician, (4) Jim Spencer-journeyman electri-
cian, and (5) Jerry Porter-journeyman electrician. A few
days later the original five committee members decided
that they needed a larger membership on the organizing
committee, and five additional employees were selected,
named, and apparently agreed to serve. The additional 5
members as added constituted the remainder of the 10-
member committee. Thus, the 6th through 10th members
were (6) Billy Grissom-electrical foreman, (7) Lanny D.
Choate-journeyman instrument fitter, (8) Don Deaton-
journeyman electrician, (9) Vick Crain-journey electri-
cian-temporary hookup man, and (10) Dennis Law-
rence-employee.s
After the above organization of the Union's committee it
is clear that some union talk was generated on and off the
project by members of the organizing committee during the
period of time of September I to 13, 1976. 9 It is also clear
that around this time there was some impediment to job
progress resulting from problems relating to location of
tools, materials, and other problems relating to work flow.
Around the middle of September, Respondent's supervisor
noted a problem relating to work progress and that some
employees appeared not to be working at top efficiency.
On September 13, 14, 15, and 16, Respondent's vice
president, Hammond, in charge of labor relations, con-
ducted seminar meetings for supervisors to acquaint new
supervisors with company policy.' 0 At the seminar meet-
ings, Respondent's agents pointed out to its supervisors
that there was a policy that there should not be solicitation
of signatures on union cards during working hours; that
employees were supposed to work during working hours.t"
For several days before September 23, 1976, it was more
noticeable that some of Respondent's electrical employees
were not fully attentive to their work duties.
On September 23, 1976, a leaflet was distributed,
apparently at the entrance, to Respondent's employees.
Said leaflet referred to itself as being from "The Southeast-
ern Oklahoma Building & Construction Trades Council"
and as being addressed to "All employees of H. B. Zachry
Company Working on the OGE Power Plant."
The leaflet referred to alleged meetings between officials
of Respondent and officials of said Trades Council and to
s Both Respondent and General Counsel appear to refer to Dennis
Lawrence as a journeyman electrician. Whether Dennis Lawrence and John
Lawrence, a journeyman electrician, are one and the same is not clear.
Evidence on such points was fragmentary and piecemeal. A precise finding
for the issues herein is not important.
9 The facts are based on a consideration of the totality of the facts
presented and logical inferences to be drawn therefrom.
Jo Nonie of the foremen or supervisors involved in this proceeding
appeared to be of essentially recent hire or promotion. Rather, they
appeared to have been supervisors for some months. Considering all of this
and the timing of events, it is clear that Respondent had become aware of or
suspected that union activity was going on.
1i The facts relating to the policy against solicitation for signatures on
union cards were presented in the testimony of Lampton. project manager.
Lampton could not remember, but believed that it was stated that
employees were free to discuss the Union on their breaks, before work, after
an alleged agreement as to wages but specifically excluded
agreement as tofringe benefits. 12 The leaflet further set forth
certain designated crafts, contended wages, fringes, and the
"total package" of "wages and fringes." Employees were
solicited to report their wage scales if they worked in said
crafts and if their wages were below the indicated wages on
the leaflet for possible use in obtaining "back wages."
Employees were also solicited to sign for representation by
the craft havingjurisdiction over their wpork. Page 2 of such
leaflet contained an excerpt of Section 7 of the National
Labor Relations Act (pertaining to employee right to self-
organization, to form, join, or assist labor organizations,
etc.) and examples of referred-to Section 7 rights. Page 2 of
the leaflet also contained forms for completion relating to
job classification and pay rates, and for authorization for
representation. Page 2 of the leaflet referred to return of
such leaflet to the "Southeastern Oklahoma Building
Trades."
Lampton, project manager, reported the handbilling of
September 23, 1976, to Vice President Hammond, in
charge of labor relations, and to Attorney Krog.
Following this, apparently on September 24, 1976, or
shortly thereafter, Lampton had a typewritten sheet
handed out to employees in response to the Building
Trades Council leaflet of September 23, 1976.
Apparently around September 23, 1976, General Fore-
man Null observed that there appeared to be a lack of
progress of work on the crews of Foremen Farmer,
Grissom, and Choate. Null spoke to the foremen about the
problem and asked them in effect to check into the matter.
Apparently the foremen indicated in conversations with
Null that they saw no real problem, that there were,
however, employee complaints concerning materials and
supplies, etc. General Foreman Null observed no problems
with Foreman Matthews' crew.
From early September to September 23, 1976, Foremen
Farmer, Grissom, and Choate's union activity had been
limited to the organizational meetings and to some talk
about the Union. Following the September 23, 1976,
handbilling by the Trades Council, Foremen Farmer and
Grissom continued to talk to employees about the Union
and commenced to solicit signatures on union cards.
During the period of time, September to October 14, 1976,
Foreman Grissom talked to approximately 20 employees
work, and during lunch hours. The only evidence as to whether the
employees were ever adverted to such policy was also presented in
Lampton's testimony which was ambiguous in effect. It is hard to tell from
his testimony whether he is referring therein to what was said to supervisors
and/or what was said to employees. The evidence is unreliable to establish
that an unlawful policy was announced or was in effect, that an unlawful
rule was announced to employees, or that a rule was enforced in an unlawful
manner as to solicitation for union membership. Further, the General
Counsel has not alleged in his complaint, has not by amendment to the
complaint so alleged. nor has contended at the hearing or in brief that there
has been an unlawful solicitation rule.
'2 Considering this, I find it hard to understand General Counsel's
contention at the hearing and in brief, not supported by evidence, that an
agreement as to fringe benefits was made between the council and the
employer.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union and was successful in getting 19
employees to sign union cards.13 Most of the employees
who signed union cards for Grissom worked on Grissom's
crew. Foreman Farmer, after September 23, 1976, signed a
union card and continued to talk to employees about the
Union. In all, after September 23, 1976, until October 14,
1976, Foreman Farmer was successful in getting 18
employees to sign union cards. Farmer's solicitation of
employees to sign union cards occurred in the boilerroom
area where his job responsibilities were. In all, Foreman
Farmer talked to 17 to 18 employees who worked under
him, and to 11 or 12 other employees about the Union
during the period of time from September I to October 14,
1976.
Foreman Dale Choate did not solicit employees to sign
union cards. After September 23, 1976, Foreman Choate's
union activity consisted of meetings with some members of
the organizing committee and others, aiding them in the
discussion of cards and strategy.
Around the time of the September 23, 1976, handbilling,
Foreman Grissom spoke to Foreman Joe Ussury and asked
him if he might be interested in the Union. Ussury told
Grissom that he wasn't interested, that he had worked for a
union before, that it wasn't to his liking, but that if the
other people wanted it, he didn't have anything against it.
Foreman Farmer spoke to Foreman Wayne Matthews
before the formation of the organizing committee in early
September 1976. Foreman Farmer asked Matthews if he
were interested in the Union. Foreman Matthews replied
that he was interested in the Union. Later, around October
1, 1976, Foreman Farmer again spoke to Foreman
Matthews about the Union. At this time Foreman
Matthews told Foreman Farmer that he was not interested
in the Union.
Foreman Dale Choate, shortly after the September 23,
1976, handbilling by the Trades Council, discussed the
handbilling with Foreman Joe Ussury and Foreman Carl
Spangler. In such discussion, the possibility of backpay was
alluded to. Foreman Choate told Ussury and Spangler that
he was going to sign the forms on the handbill (union
authorization and information relating to the job and pay
scale) and send such back to the Trades Council. Choate
also had several other conversations with Foreman Ussury
about the Union.
As has been indicated, supervisors of Respondent,
around the middle of September 1976, had observed some
employees who appeared to be standing around and
talking. Supervisors also observed more and more of this
type of activity around September 22 and 23, 1976. It is
also clear that in general the employees did not appear to
be working at their normal pace between mid-September
and October 14, 1976.14
At some point of time, after mid-September 1976, and
apparently 3 weeks before the discharges of Farmer, Dale
13 No evidence was presented to the effect that Grissom himself signed a
union card.
14 These facts are not really in dispute as evidenced by testimony of
General Counsel's witnesses Dale Choate and Billy D. Grissom, who were
foremen and whose interests in this case are allied with those of the alleged
discriminatees.
Is The facts are based on a composite of the credited aspects of the
testimony of Robbins, Tausch. and Schad, and a consideration of the logical
consistency of all of the facts and stipulations presented in the case.
Choate, and Grissom on October 14, 1976, General
Foreman Null told Foreman Farmer that Assistant
Electrical Superintendent Tausch was going to have a
barbeque ("chewing out") of one crew and that he was
similarly going to handle another crew at the Monday
morning safety meeting. Null told Farmer that his
(Farmer's) crew was doing all right and didn't have to
attend such session.
Apparently the events that Null referred to occurred
after the September 27, 1976, Monday morning safety
meeting. In any event, it is clear that Assistant Electrical
Superintendent Tausch met with Foreman Dale Choate
and his crew on September 27, 1976, after the regular safety
meeting. At such meeting Tausch told the crew that
production had fallen off, that they were not "getting
enough done," that there were a lot of employees who were
just standing around talking, that employees were not
staying in their work areas, and that the journeymen were
not working their helpers the way they should be worked.
On September 28, 1976, Respondent discharged J. Leo
Robbins, a journeyman electrician. The General Counsel
alleges and Respondent denies that the discharge of
Robbins was because of his union activity in violation of
Section 8(a)(3) and (1) of the Act. The facts relating to such
issue are set out as follows.
The Discharge of Robbins,15 September 28, 1976
Robbins commenced employment for Respondent in
March 1976 as a journeyman electrician. During the
relevant time involved in this proceeding, Robbins was an
employee under Foreman Darwin Dale Choate. Choate's
crew was involved in work in the turbine area.
Prior to the union activity involved (September and
thereafter) there had been rumors concerning a union in
July 1976. At such time Robbins had spoken to a fellow
journeyman electrician, Carl Spangler, about his belief in
and support of unionism. Later Spangler became a
foreman and was a foreman at the time of the crucial
events in this proceeding.1s
In early September 1976, Spencer and Porter, union
activists, spoke to Robbins about the question of a union
and their organizing efforts. Robbins engaged in some
union talk at that time. Robbins, however, was not
designated as a member of the union organizing commit-
tee. Around the second or third week of September 1976,
Robbins took a 2-week unpaid vacation which apparently
ended around September 22, 1976.17 Robbins had asked
Tausch for time off for his vacation. Tausch was reluctant
in allowing Robbins to have the time off that Robbins
desired. Apparently there was some compromise as to
when the time off started and ended. It appears that the
time off started approximately on September 10, 1976, and
ended approximately around September 22, 1976. In any
'6 Realistically, the mere change in status from that of employee to
foreman does not affect the memory process.
1? Robbins testified to the effect that he took a 2-week vacation. Tausch's
testimony indicates that the length of the vacation was approximately 5
days. Since Robbins was more directly involved in the vacation, I credit
Robbins' testimony as to the length of the vacation.
1146
H. B. ZACHRY COMPANY
event, it is clear that Tausch was unhappy over the time off
that was taken by Robbins.
Around the time that Robbins returned to work the
Trades Council had distributed the September 23, 1976,
handbill. After such distribution, Robbins, apparently, on
September 27 and 28, signed a union card and successfully
solicited another employee to sign a union card. During the
early part of September, after he returned to work from his
vacation until his discharge, Robbins spoke to a total of
about 12 employees about the Union.18
As has been indicated, Assistant Electrical Superinten-
dent Tausch spoke to Foreman Darwin Dale Choate's crew
about production, about standing around, and about
working helpers, on September 27, 1976.
Prior to the events of September 28, 1976, Assistant
Electrical Superintendent Tausch had complimented work
performed by Robbins. Tausch had, however, at such time
indicated to Robbins that the quantity of his work was not
good. On September 27, 1976, Tausch asked Foreman
Choate what Robbins was doing. Upon being told by
Choate that Robbins was working on the unit-five
generator, Tausch told Choate that they didn't need to be
working on the unit-five generator, to move Robbins to the
number four turbine area.
Either on September 27, 1976, or in the early morning of
September 28, 1976, Foreman Choate assigned Robbins to
work in accordance with Tausch's instructions. In the early
part of the morning Tausch saw Robbins at work and
indicated to Robbins that he was assigned to the task that
he was performing because Tausch liked the way he
performed his work.19
Apparently there was rumor or conjecture among some
of the union adherents that an employee named Gary
Bishop had reported to management the names of
employees who were talking about the Union.2 0 On the
morning of September 28, 1976, around 10 a.m., Robbins
spoke to Gary Bishop while Robbins was on the way to the
toolshed. Robbins told Bishop that they were old friends,
that they had worked together, and asked Bishop if he
would do him a favor. Bishop told Robbins that he would.
Robbins then asked Bishop if he would please not give the
names of any more union men working to the Company.
Robbins told Bishop that if he kept giving such names to
the Company, a lot of the men would be hurt and lose their
jobs. Bishop did not say anything and walked off. When
Robbins was returning from the toolshed to go back to his
work area, Robbins saw Bishop talking to Foreman
1i Although Robbins on cross-examination described his union activity
as being limited, the timeframe of his activity reveals that it was really not
that of minimal activity.
'9 Tausch testified to the effect that he did not compliment Robbins on
the morning of September 28, 1976. Considering the overall facts, I am
persuaded that Robbins' testimony as to such compliment is to be credited.
It is clear that Tausch was trying to coordinate the aspects of the job. I am
persuaded that Tausch was trying to give incentive to the employee and that
he has forgotten what occurred concerning the compliment to Robbins.
Considering all of this, I discredit Tausch's testimony that he also criticized
Robbins' amount of production. Similarly, I credit Robbins' testimony that
Tausch had complimented his work in the past.
29 On cross-examination, Robbins testified to the effect that he based
such a belief on a conversation he had with his helper, Danny Morgan,
Robbins' half-brother. According to Robbins, Morgan related to him a
conversation that Morgan had had with Bishop to the effect that Bishop had
made reports to management. It is clear that the employees and foremen
Bowden. Bowden gave Robbins a "dirty" look as Robbins
walked by.
About an hour later Robbins saw Bishop again. As he
was walking by Bishop, Bishop spoke to Robbins. Bishop
asked Robbins if he could see him for a minute. Robbins
told him that he could. Bishop then told Robbins that he
didn't appreciate what Robbins had told him earlier.
Robbins said, "Appreciate what?" Robbins told Bishop
that he had only asked him not to be turning in names to
the Company about union people. Bishop said, "Well,
never mind." Bishop told Robbins that the assistant
superintendent, Milton Tausch, was standing nearby.
Robbins turned and saw Assistant Electrical Superinten-
dent Tausch and Foreman Bowden standing about 20 or
30 feet behind Robbins. Robbins said, "So, what? We
haven't done anything wrong." Robbins then proceeded
away.
During the morning of September 28, 1976, Assistant
Superintendent Tausch observed Robbins at work and
considered that he was going out of his way to talk to
people, that he was not working his helper, and that he was
not trying to get his job done.
After lunch on September 28, 1976, Assistant Electrical
Superintendent Tausch came up to Robbins who was
standing with his helper, apparently getting his material set
up for work. Tausch told Robbins to turn in his safety
belt.21 Robbins asked "What for?" Tausch replied that
Robbins was terminated. Robbins asked in effect that
Tausch tell him the reason he was being terminated.
Tausch replied that Robbins' work was not satisfactory.
Robbins told Tausch that he was a "damn liar," that he
knew that Robbins' work was good, that he had pulled him
off of another job to do this job because he (Tausch) had
wanted him to do this job. Tausch told Robbins that this
wasn't what he had meant, that he meant that Robbins
didn't do enough work, that he was talking too much to
employees, that he just wasn't getting the job done.
Robbins again told Tausch that he was a "damn liar," that
he had told him before that he was one of the better
workers, and that other men had told him he was one of the
best workers there. Robbins told Tausch that when the
foreman had been absent and he had run out of work, that
he had gone to Tausch seeking something to do. Tausch
told Robbins again in effect that he was terminated.
Robbins then proceeded to call Tausch some vulgar
names. Robbins told Tausch that he knew the reason he
was being fired, that he was being fired for talking to
who engaged in union activity had much discussion and conjecture of a
hearsay nature. Because of the multitude of issues, much evidence,
admissible for one point, but having no value as to other points because of
hearsay, was presented. Whether Bishop had made reports to management
prior to this point of time was not established. I note that some of the
testimony indicated that Foreman Farmer had overheard Foreman
Spangler indicate Bishop as the source of knowledge of Lanny Choate's
having engaged in union solicitation. This referred-to overheard conversa-
tion occurred on September 28, 1976. Foreman Farmer, in his testimony as
to such overheard conversation, did not allude to Bishop's report in such
regard.
21 The facts are based on a composite of the credited aspects of the
testimony of Tausch and Robbins and a consideration of the logical
consistency of all the facts. Testimony of either witness inconsistent with the
facts found is discredited. I discredit, as an example, Robbins' testimony to
the effect that Tausch admitted that he was firing him because of union
activity.
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bishop. Tausch told Robbins that it wasn't just his talking
to Bishop, but that it was his talking to three or more of the
employees, that this, however, wasn't the main reason, that
he was being terminated because he wasn't getting the job
done.
Contentions and Conclusions
The General Counsel contends that Respondent fired
Robbins because of his union activities and for a
pretextuous reason. Respondent contends that Robbins
was discharged because he wasn't performing his job.
Some of the contended facts set forth by the General
Counsel in his brief were not presented in evidence. Other
contended facts simply were presented in such a garbled
fashion that the testimony thereto has no probative value
as to establishing the contentions. Boiled down, the
General Counsel's case presents for consideration the
question of whether or not Respondent discharged Rob-
bins because Bishop reported to management Robbins'
conversation with Bishop wherein Robbins asked Bishop
not to report names of union employees to management.
Robbins' testimony as to such events just simply wasn't
presented in such clarity as to be probative to establish
such point.22
Thus, the General Counsel would seek an inference that
Bishop reported such conversations because of the timing
of events. The evidence is clear that employees often speak
to supervisors on the job about job-related matters. As an
example, on cross-examination, Robbins testified to his
own need to speak to supervisors on the job.
The most critical point, in my opinion, involves the fact
that Robbins was discharged and his helper, Morgan, was
not discharged. Considering, however, the fact that on
September 27, 1976, Tausch had spoken to Foreman
Choate's crew about the journeymen working their helpers,
I am persuaded that the preponderance of the facts reveals
that Respondent discharged Robbins for cause and not for
discriminatory reasons.
In making the above determination, I have considered all
of the evidence in the case. Thus, I have considered the
question of company animus and propensity to discrimi-
nate as revealed by the discriminatory discharges of
Spencer, Porter, and Tom Carman.23 Although I find later
herein that Respondent discharged Lanny Choate for
discriminatory reasons, the facts as to such discharge do
not have persuasive value in the general determination of
union animus or propensity to discriminate. I have
similarly considered evidence of unlawful interrogation by
Bowden as having a bearing on Respondent's propensity to
violate labor laws. The other alleged 8(a)(1) type violations
largely constitute overflow from the evidence of animus
revealed by Electrical Superintendent Garner in a conver-
sation with other supervisors and in a conversation with
22 It is clear that Tausch told Robbins in effect that his talking to Bishop
was not the only reason. The facts are clear that Robbins was seen talking to
Bishop. This, however, does not reveal that the talking referred to by Tausch
related to talking about the turning in of names to management.
23 1 have also considered the vanous family relationships of employees,
the carpool arrangements, the number of discharges of ones on the
organizing committee, and the totality of the facts. Such suspicions as arise
therefrom are not sufficient to establish the facts than otherwise found.
24 Considering the circumstances of Garner's remarks to Foreman
Foreman Brown.24 The unlawful interrogation by Thorn-
ton and unlawful request to solicit reports on union
activity, also, in my opinion, because of the particular
background of security work, does not have persuasive
value as to the overall question of animus in this case.
Finally, this case presents the question of employee
organizational rights opposed by Respondent's right to
require employees to do their regular work. The issues in
this case boil down in many instances to the question of
disparate or pretextuous treatment on an incident-by-
incident basis.
In sum, I am persuaded that the facts relating to the
discharge of Robbins preponderate for a finding that
Respondent discharged him for cause and not for reasons
violative of Section 8(aX3) and (1) of the Act. Accordingly,
it will be recommended that the allegation of unlawful
conduct in such regard be dismissed.
On September 28, 1976, Foreman Chester Farmer, one of
the Union's supporters, heard and participated in a
conversation about the Union in the field superintendent's
office.
According to Farmer's testimony, which I credit, he went
into the field superintendent's office on September 28,
1976, around 5 p.m. In the office at such time were
Electrical Foreman Carl Spangler, General Foreman John
Null, and Electrical Superintendent Garner.
What occurred is revealed by the following credited
excerpts of Farmer's testimony: 25
A. As I stepped into the office Mr. Null was saying
"What was the man's name?"
And Carl Spangler said, "I don't know what the
man's name was, he was a little, short, fat man, in the
instrumentation department," and he approached (I
don't - forget the name that Carl Spangler said the
man's name was that he approached) - I thought that
he said that he approached Spangler, I might have been
wrong - approached this fellow or myself (I don't
remember who he approached) with that authorization
card, and he was signing people up into the Union.
I said, "Carl, you mean there's a man on this job
signing people up in the Union?"
He said, "Yes, right here on this job."
And John Null said, they get a majority to sign up on
these cards, and they get to vote.
And J. B. Garner said, "Yes, and the majority gets
run off."
Q. Did you make any response?
A. Yes.
I missed one response that I didn't make. When
Spangler said, "I don't know this man's name." Mr.
Null said, "Choate. Choate."
I said, "Choate, that's Dale Choate's brother."
Brown and to Foremen Spangler, Farmer, and Null, I am persuaded it
revealed his true beliefs and attitude. Other evidence as to expressions by
Garner and others as to the fact "that union activity would have no bearing"
were made at a time when such statements appear to have been guarded in
nature.
5s Respondent argues in effect that Garner did not state what he meant
by remarks to the effect that the employees would be run off. In the context
of the total conversation, it is clear what Garner meant. It is clear that he
was saying that the employees would be fired.
1148
H. B. ZACHRY COMPANY
Q. Was there any reference during this conversa-
tion to any other employees other than Mr. Choate?
A. Yes.
Q. And who were they?
A. Carl Spangler said, "Well, I'm sure about this
man in the instrument department passing out these
authorization cards, but it's just hearsay about Jim
Spencer and Jerry Porter having these handbills put out
at the gate."
Alleged Creation of Impression of Surveillance
On the evening of September 28, 1976, and during a
period of time shortly thereafter, Foreman Farmer told
employees, including Lanny Choate and Jerry Porter, the
essential details of the conversation he had heard and
participated in earlier that day between Foreman Spangler,
General Foreman Null, and Electrical Superintendent
Garner.2 6
The General Counsel contends that Respondent, by
Farmer, created the impression among its employees of
surveillance of said employees' union activities by advising
them it was aware of their organizational efforts and which
employees were involved. Respondent's defense to this
issue was essentially an attack on the credibility of the
witnesses. Neither Null nor Garner, who testified, testified
on the issue. Respondent's answer also attacked the issue
on the question of agency, contending that Foreman
Farmer and others were acting as agents of the Union.
I am persuaded that the witnesses, Lanny Choate,
Farmer, and Porter, were credible witnesses as to this issue.
As to the agency defense, there is no evidence to reveal that
Farmer was trying to create an issue. Rather, I am
persuaded that Farmer truthfully reported what had
occurred.
Considering this, I am persuaded that the employees
would construe the effect of the remarks reported as an
inherent threat of discharge because of union activity. It is
clear that Spangler, Null, and Garner did not intend their
conversation to be repeated and, therefore, did not intend
by their remarks that a threat be made to employees. The
evidence as to what Garner said, however, reveals animus
of a threatening nature. It is also clear that Foreman
Farmer did not personally intend to be threatening
employees because of their union activities. He did,
however, truthfully repeat the effects of what he had heard.
Under such circumstances, both Farmer and the employ-
ees reasonably believed that they were correctly discussing
company policy or position. Respondent is liable for such
conduct because a supervisor originally made the threaten-
26 The facts are based upon a composite of the credited aspects of the
testimony of Farmer, Choate, and Porter. Respondent, on cross-examina-
tion, attempted to attack Farmer's credibility by use of inconsistent
statements in a pretrial affidavit. I have considered this, but considering the
participation of Farmer as a counion adherent, I am persuaded that he
spoke a great deal about such conversation and find it reasonable that he
might have confused who he talked to or might have forgotten at times who
he had talked to. Similarly, I consider the deviations of Choate's testimony
as to details and Porter's testimony compared with a pretrial statement to be
somewhat normal under the circumstances. The testimony of the witnesses
did not vary with respect to the references to Spangler, Null, and Garner's
participation. There was variance as to whether certain other supervisors
ing remarks which were conveyed by another supervisor to
employees. It is clear that such conduct interfered with and
restrained employees in the exercise of their Section 7
rights and is violative, as a threat, of Section 8(a)(1) of the
Act. Such has not been specifically alleged in this case.
However, similar conduct is alleged to have been engaged
in by Foremen Brown and Darwin Dale Choate. I find
hereinafter that Foreman Brown made threats of discharge
in violation of Section 8(aX)() of the Act and consider
Farmer's conduct similarly violative of the Act and
supportive of the remedy used for such violative conduct.
As to the question of creation of impression of surveil-
lance, I am not persuaded that the facts support such
contention. Thus, it is clear that Foremen Spangler, Null,
and Garner were not attempting to create an impression of
surveillance of employees' union activities, and it is clear
that Foreman Farmer was not attempting to create an
impression of surveillance of employees' union activities.
The question remains whether the facts inherently revealed
a creation of an impression of surveillance. In my opinion,
the employees who heard Farmer's recitation of what he
had heard would not construe that Respondent was trying
to create an impression of surveillance of their union
activities. Nor do I believe that the employees would
construe that the information received by Respondent
flowed from surveillance. Rather, the remarks of "hearsay"
and the totality of remarks approach gossip as to details
but truth as to animus. Accordingly, it will be recommend-
ed that the allegation of unlawful conduct as to alleged
creation of impression of surveillance be dismissed. 27
Interrogation
Toward the last of September or first part of October
1976, Foreman Bowden had a conversation with employee
Tom Carman. The facts are revealed by the following
credited excerpts from Carman's testimony.
Q. (By Mr. Snow) Now, Mr. Carman, did you have
any conversation with any supervisor about the Union?
A. Yes, sir.
Q. And when was this?
A. Approximately the end of September or the first
of October.
Q. Could you tell us who that supervisor was?
A. Boudreau Bowden.
And where were you at when this conversation took
place?
A. In my assigned work area.
were named as being involved in the conversation as well as whether Bishop
was referred to in the conversation on September 28, 1976. Considering all
of this, I discredit testimony inconsistent with the facts revealed in Farmer's
testimony as to the September 28, 1976, events.
27 A parallel allegation of unlawful conduct by Foreman Brown
concerning "creation of impression of surveillance" was withdrawn by the
General Counsel in his brief submitted to the Administrative Law Judge.
According deference to the General Counsel's litigation control, such
withdrawal is allowed. Considering the fact that Lanny Choate had told
Foremen Brown and Guest of his union activities, it would appear that he
would not have a basis of belief that knowledge of his union activities was
based upon surveillance.
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Sir?
A. In my assigned work area.
Q. And was anyone else present?
A. No, sir.
Q. Would you tell us what that conversation -just
who said what, as best you can recall?
A. Well, he approached me and asked me if I had a
few minutes, and I told him that I did. And he
proceeded to ask me, he says, "Well, what do you think
about this mess?" This is Mr. Bowden.
And I said, "What mess are you talking about?" He
said, "Well, this Union mess out here." And I told him,
I says, "If the Union is what it takes to get this situation
straightened up out here, I'm in favor of it."
And we proceeded to discuss what the problems
were on the job.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that the Respondent, by Bowden, engaged in unlawful
interrogation of an employee as to union interests in
violation of Section 8(a)(l) of the Act.
Considering the facts, the lack of evidence to reveal a
legitimate need for such interrogation, and the lack of
assurances of nonreprisal, I conclude and find that the
interrogation of Carman by Foreman Bowden constituted
conduct violative of Section 8(a)(1) of the Act.
On or about September 29, 1976, Lanny Choate had
conversations with Foreman Guest and General Foreman
Brown concerning his support of the Union.28 In the first
conversation with Guest, Lanny Choate told Foreman
Guest that he was a union organizer, that he had heard the
Company knew about it and was fixing to fire him, that he
(Guest) had treated him well, that he didn't want Guest to
get caught in the crossfire, and that he was informing Guest
so that he wouldn't be caught unaware. Later, Lanny
Choate spoke to General Foreman Brown, with Guest
being present, and repeated to Brown in effect what he had
told Guest. General Foreman Brown told Choate that he
was favorable to the Union and would also like to sign a
union card. Lanny Choate did not have a union card at
that time, but later furnished a card to Brown who signed
it. During the conversation between Brown and Choate,
Brown told Choate that he was a good worker and that
before he would run him off (fire him), the Company
would have to fire him (Brown) also.
Later, during the afternoon of September 29, 1976,
Project Manager Lampton had a conversation with
General Foreman Brown about Lanny Choate. What
occurred is revealed by the following credited excerpts
from Lampton's testimony: 29
2s The testimony of Brown and Choate fixed the timing of events as
September 28, 1976. It is clear, however, that the conversations between
Lanny Choate, Guest, and Brown occurred after he had heard from Farmer
about the conversation Farmer heard and engaged in with Foreman
Spangler, General Foreman Null, and Electrical Superintendent Garner set
forth previously. Considering the timing of events, I fix the time of Lanny
Choate's conversations with Guest and Brown to be on September 29, 1976.
A different timing, as long as in sequence, would not affect the results in this
case.
29 Lampton was a more impressive witness than Brown. I credit his
testimony over Brown's where in conflict.
A. Yes, sir. I advised him that it had been brought
to my attention that Lanny Choate, who was an
instrument fitter, was actively soliciting in the Electrical
Department to get cards signed for the IBEW.
Q. All right, sir, and what action did you request or
instruct him to take?
A. I told him you could not fire a man for that kind
of activity; but if he is running all over the job
soliciting, he can't be performing the work that he is
supposed to be performing; and if he is actually doing
this and not working for us, then he needs to be
terminated.
General Foreman Brown construed Lampton's remarks
as a message to fire Lanny Choate because of his union
activity but on the pretext that he was out of his work area.
Threat of Discharge
On September 29, 1976, in the evening, or on the
morning of September 30, 1976, General Foreman Brown
had another conversation with Lanny Choate. What
occurred is revealed by the following credited excerpts
from Lanny Choate's testimony. 30
Q. All right, sir. Did Mr. Brown, if the general
foreman, Sarge Brown - did he ever have anything to
say to you about his conversation with Mr. Orville
Lampton?
A. Yes, he did.
Q. And what did he tell you about his conversation
with Mr. Lampton?
A. Well, while I was working he came to me and
told me that I had been correct in what I had said,
because Mr. Lampton had come and got him and took
him for a ride in his car, and had informed him that I
was really a union organizer; that he didn't want any
on the job, and he was going to have to fire me, but it
was against the law to do that, so he told him to find
another reason to fire me. That is what Mr. Brown told
me.
Contentions and Conclusions
The General Counsel contends, and Respondent denies,
that Respondent, by Foreman Brown, on September 29,
1976, threatened employees with discharge and other
reprisals if they continued their union activity. Respondent
argues that Choate's testimony of what Brown related
differs from what Lampton had told Brown. Indirectly, it
appears that Respondent raises an "agency" question as to
Brown.
Considering all of the foregoing, I conclude and find that
Respondent, by Brown, violated Section 8(a)(l) of the Act
30 The facts are based upon the credited testimony of Lanny Choate.
With respect to Choate's testimony as to another event, the circumstances
preceding his discharge, Respondent argues that Choate's testimony reveals
an inconsistency as to whether he told Brown about going for the "haul
truck." A careful study of the questions and answers reveals no inconsisten-
cy. Rather, what Respondent construes as an inconsistency was an answer
to a question as to whether Choate had argued with Brown about the reason
for his discharge.
1150
H. B. ZACHRY COMPANY
by conduct of threats of reprisal because of union activity.
It is clear that Brown construed Lampton's remarks
differently perhaps than intended. Brown's remarks to
Choate, however, clearly were violative. Remarks made by
a supervisor in such circumstances are clearly attributable
to Respondent, even if Brown himself did not personally
want to threaten Choate or discourage union activity.
Brown, who exhibited support for the union, was not,
similar to Darwin Choate, Farmer, and Grissom, part of
the union's organizing committee. A respondent is liable
under such circumstances for statements made by supervi-
sors of a threatening nature relating to union activity. In
sum, I conclude and find that Respondent, by Brown, on
or about September 29, 1976, violated Section 8(a)(1) of the
Act by threatening employees with discharge because of
their union activities. 31
The Discharge of Lanny Choate
On September 30, 1976, General Foreman Brown
discharged Lanny Choate for the assigned reason of
leaving his work area.
Lanny Choate is a journeyman electrician and a
journeyman instrument fitter. He commenced work on the
Zachry job on June 20, 1976, and worked as a journeyman
instrument fitter until his discharge on September 30, 1976.
Lanny Choate is the brother of Foreman Darwin Dale
Choate and journeyman electrician William Choate. All
three and several other employees are contended to have
been unlawfully discharged in this case.
Lanny Choate was on the Union's organizing committee
and was active in the union campaign until his discharge.
Lanny Choate's work as an instrument fitter brought him
in contact with various electricians at various points on the
Zachry project. From September I to September 30, 1976,
Lanny Choate spoke to approximately 12 electricians
about signing union cards and secured 5 or 6 signed cards
from employees. It is clear that some of this activity
occurred during worktime and not on breaks or at
lunchtime.
As has been indicated, Respondent was aware at least by
September 28, 1976, of Lanny Choate's activity on behalf
of the union. As also has been indicated, General Foreman
Brown had indicated to Lanny Choate that Respondent
was seeking a reason to discharge him because of his union
activity. Before this, Foreman Farmer had repeated a
conversation he had heard and participated in wherein the
effect of such conversation was that Lanny Choate's union
activity was known and that union activists would be
discharged.
On September 29 or 30, Foreman Guest assigned Lanny
Choate a job wherein he would use approximately 5 or 6
helpers. Guest told Choate that the job was a hot job and
needed to be performed fast.
On September 30, 1976, Lanny Choate was engaged in
carrying out the job assigned by Guest. In carrying out
such job there arose a need to use a haul truck. In
31 Respondent's credibility argument wherein it is pointed out that
Lanny Choate was the only witness presented who testified as to this issue
has been considered. I am persuaded, however, that Choate was a credible
witness and credit his testimony. As previously stated, the testimony
concerning Foreman Farmer's conversation with employees about the
midmorning Choate and a helper went around the jobsite
looking for the haul truck. The truck had not been found
by lunchtime. After lunchtime Lanny Choate was prepar-
ing to go to look for the haul truck. At that time General
Foreman Brown came up and told Choate in effect that the
time had come for his discharge. Choate told General
Foreman Brown at the time that he was going to look for
the haul truck. A short time later Brown prepared Choate's
termination slip wherein it was indicated that he was
discharged for being outside his work area. Choate made
no protest as to the assigned reason because he considered
it futile as a result of the conversation he had had with
General Foreman Brown on September 29, 1976.
I find it proper at this time to set forth a discussion of
Respondent's work rule or policy regarding employees
staying in their work area. It is reasonably obvious that on
the large project involved in this case the work area for an
employee involves where the work is being performed or
where an employee has to go to get materials, equipment,
or supplies needed to perform work. Prior to October 18,
1976, Respondent had no expressed written rules or policy
about employees staying in their work area. However, the
overall evidence and General Foreman Brown's testimony
make it clear that supervisors knew that if an employee was
not performing his duties and was staying out of his work
area, a supervisor could fire such employee. General
Foreman Brown, in fact, fired an employee named
Crittenden on September 14, 1976, in part for staying out
of his work area. There is no evidence that Crittenden was
fired at such time because of a change of policy. I note,
however, that this discharge occurred on September 14,
1976, after management had had some labor relations
seminars. Considering Brown's testimony as a witness,
however, I am persuaded that if there had been a policy
change at such time, he would have so testified. In sum, I
am persuaded that Respondent's unwritten policy envi-
sioned employees staying in their work area of responsibili-
ty, including as part of the work area locations they had
need to go to for tools, materials, or supplies to perform
their job.
Apparently, before the events of this case there had been
little need for general reference to requiring employees to
stay in their work area. In early October, 1976, manage-
ment commenced telling the foreman to have employees to
stay in their work area. I am persuaded that such
instructions did not specifically refer to the fact that when
employees had to go for materials or supplies that on such
occasions employees would be in their work area. It is
obvious, however, that management did not mean to
impede the employees in carrying out necessary work. It is
also clear that the foremen and the employees would know
that Respondent did not intend a rule to impede work. I
am persuaded that because of the employee union interests
and/or employee desire to talk at times concerning the
Union and/or other matters, the discharge issues that came
up, and the threats of discharge that the contended
interpretations of an extremely restricted rule arose as a
conversation he heard and participated in with Foremen Spangler, Null, and
Garner is considered as background support for the remedy of such
violative conduct. The peculiar facts relating to this conversation do not add
weight to the question of union animus relevant in this case.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of rationalization. The problems of a work-assigned
area rule on a project as involved as the project herein raise
a question of argument almost at any time of desired
enforcement. The possibility of pretextuous use of such a
rule increases the possibility of argument. Thus, an
employee who was outside of his work area and not
involved in obtaining work materials, supplies, or tools,
etc., could always argue or find a reason to the effect that
he was on his way to get tools, materials, supplies, etc. On
the other hand, Respondent could try to use the rule in a
restrictive way and believe or argue that the employee was
not legitimately going about his task. Considering the
climate of the events, I am persuaded that the employees,
foremen, and management argued about the interpretation
of the rule and that the rule in its full and real intent was
ultimately made clear, that such was not, however, a
rescinding of the rule.
Contentions and Conclusions
The General Counsel contends that Respondent discri-
minatorily discharged Lanny Choate on September 30,
1976, because of his union activities. Respondent contends
that General Foreman Brown discharged Lanny Choate
because he was outside of his work area.
The real question is what was General Foreman Brown's
motivation in the discharge of Lanny Choate on September
30, 1976.32
Respondent's cross-examination of Brown and Choate
was directed at establishing that the discharge of Choate
was contrived and in effect that the testimony of the
witnesses was contrived. I have carefully considered the
testimony of the witnesses and all circumstances in
determining the facts. I note that Brown indicated to
Choate on September 28, 1976, that he favored the Union,
that Brown later appeared to change and wanted to please
the Company by discharging union adherents, that Brown
later quit his job for Respondent around October 12, 1976,
and that the Union had promised to let him in the Union if
he gave a statement to the NLRB. I also note that on
October 6, 1976, Brown called Choate and related what he
said Piping Superintendent Bentley had said regarding the
firing of union adherents. I am persuaded that Brown got
caught in the crossfire between the Company and the
Union and that, in effect, for a while he played both sides
and was pressured by the facts.
The testimony of Brown and Choate appeared in conflict
as to whether Brown caught Choate out of his "work area"
or not. Choate's testimony on such point appeared more
complete, and I credit such testimony. However, whether
Choate was in or out of his work area at the time of the
discharge is not of great importance. The real question is
that of Brown's motivation for the discharge.
I am persuaded from all of the facts that General
Foreman Brown construed that he was instructed to fire
Lanny Choate because of his union activity but on the
32 I have carefully considered Brown's credibility, his giving of a
statement to the NLRB after assurances from the Union that he could
become a member, and the totality of the facts. I found Lanny Choate to
appear to be a very truthful witness. Considering this and the facts as found
as a result, I find that Brown's testimony in the context of such facts is
credible, and I believe and credit his testimony in support of the facts found.
alleged basis that he was out of his work area. In answer to
a question by the Administrative Law Judge, Brown
testified that he discharged Choate for union activities, that
this was his reason. Considering this, I am persuaded that
General Foreman Brown discharged Lanny Choate on
September 30, 1976, because he believed he was following
management's instructions to discharge Choate because of
his union activities but on the alleged basis that he was out
of his work area. Such conduct is violative of Section
8(a)(3) and (1) of the Act. It is so found and concluded.3 3
On October 1, 1976, General Foreman Brown and
General Field Superintendent Schad had a conversation
about Lanny Choate. Schad asked Brown what kind of
worker Lanny Choate was and told Brown that he had seen
him standing around and doing nothing. Schad also told
Brown that Choate had been organizing for the Union.
Brown told Schad that he didn't have to worry, that he had
discharged Choate. Schad asked Brown what was the
reason he had discharged Choate. Brown told Schad that
he had discharged Choate because he wasn't staying in his
work area and performing his job.34
On October 1, 1976, Foreman Grissom and Electrical
Superintendent Garner had a conversation. Garner asked
Grissom what he knew about the union deal out there.
Grissom told Garner that he didn't know much about the
union deal, that he wanted to know more, that he was 100
percent for the Union, and that he wanted a card. Garner
turned and walked off.
On October 1, 1976, General Foreman Brown spoke to
Electrical Superintendent Garner. Brown told Garner that
he had terminated Lanny Choate, that Garner's worries
were over. Garner told Brown that his worries weren't over,
that there were three or four more out there that they had
to get rid of, and that one of them was a foreman.
On October 1, 1976, General Foreman Null advised
Foremen Darwin Dale Choate, Farmer, and Grissom that
they were to tell employees at the Monday morning safety
meeting that they had to stay in their work area. The
question of Respondent's work area policy and the
confusion arising from not being more specific in spelling
out the full ramification of the rule has been discussed
above in the section concerning Lanny Choate's discharge.
Later, after work, Foreman Dale Choate told employees
Porter, Lofton, Carman, and Spencer about the announce-
ment in effect of a work rule requiring employees to stay in
their work area.
Alleged Threats
The facts are clear that on October 1, 1976, and later,
Foreman Darwin Dale Choate, as indicated above, told
employees of the work rule relating to employees having to
stay in their work area or they would be terminated. It is
also clear that Foreman Darwin Dale Choate made it clear
that it was his personal opinion that the Company might
33 The facts are based on a composite of the credited aspects of the
testimony of Brown and Schad. Testimony inconsistent with the facts found
is discredited.
34 The reason set forth in effect on the termination slip for Lanny
Choate.
1152
H. B. ZACHRY COMPANY
use the rule as a means of discharging known union
supporters.
Contentions and Conclusions
The General Counsel contends that the statements by
Foreman Choate referred to above constituted threats of
discharge violative of Section 8(aXl) of the Act. Respon-
dent contends that in the circumstances of this case
Foreman Choate was not acting as its agent and that the
employees would construe that Choate was not acting as its
agent for such statements.
I find merit to Respondent's contentions. It is clear that
concerning the question of union organizing the employees
would consider Choate as one of them even though he was
a foreman. Unlike the statements of Farmer, alluding to
specific statements by higher supervision and other
foremen unallied with the union effort, it is clear that
Foreman Darwin Dale Choate was speaking as a friend,
expressing an opinion, and not expressing company policy
concerning discriminatory discharge of employees. Ac-
cordingly, the allegations of unlawful threats by Foreman
Darwin Dale Choate will be recommended to be dismissed.
On October 4, 1976, Foreman Darwin Dale Choate and
Grissom (and apparently Farmer) told their respective
crews that there -was a work rule now in effect requiring
employees to stay in their respective work area or they
would be terminated.
The Discriminatory Discharge of Porter
On October 4, 1976, General Foreman Null discharged
journeyman electrician Porter for the assigned reason of
being out of his work area.
Porter was an experienced journeyman electrician,
commenced working for Respondent in May, 1976, and
worked as a journeyman electrician until his discharge on
October 4, 1976.
Porter received no complaints about his work during his
time of employment. As previously indicated, Porter was
an active union supporter and a member of the union
organizing committee. As of September 28, 1976, as
revealed by the conversation that Foreman Farmer
participated in and heard involving Foreman Spangler,
General Foreman Null, and Electrical Superintendent
Garner, it is clear that Respondent believed Porter to be
active in the union effort. During the period of time
September I to October 4, 1976, Porter talked to 15-20
employees about the Union, secured employees' signatures
on 8 or 9 cards, and attended union organizational
committee meetings.
On October 4, 1976, Porter received instructions from
Foreman Darwin Dale Choate concerning staying in the
work area assigned or being subject to termination.
On October 4, 1976, Porter needed some blueprints. In
hunting for them, he was advised that Danny Morgan, a
helper, might have them. Porter went to where Morgan was
working and talked to him about the blueprints. At such
time Porter also engaged in talk with Morgan and several
other employees about the Union. General Foreman Null
SS The facts are based on a composite of the credited aspects of Spencer's
and Schad's testimony. Testimony inconsistent with the facts found is
observed the conversation and that Porter was away from
the work area where he was assigned to be working.
General Foreman Null came up and asked Porter if he had
any reason to be in the area. Porter told Null that he had
no reason, that he was just shooting the bull. Null asked the
other employees if there were any reason for them to be
standing and talking. The employees indicated that they
had no reason to be standing and talking. Null proceeded
to fire Porter for the alleged reason of being out of his work
area. No action was taken against the other employees, one
or two of whom were journeymen.
I note that Porter on the occasion of his discharge did
not tell General Foreman Null that he was seeking
blueprints, I also note that when General Foreman Null
told Foreman Darwin Dale Choate that he had fired Porter
for being out of his assigned work area, Choate did not
allude to the fact that Porter was seeking blueprints; this,
despite the fact that Foreman Choate apparently knew that
Porter was seeking blueprints.
The real issue again involves the question of motivation.
It is clear from the fact, whether Porter was searching for
blueprints or not, that Foreman Null had cause to believe
that Porter was outside of his work area, even under a
correct interpretation of such rule. The facts in this case
reveal that Porter was an active union adherent, that
Respondent believed he was an active union adherent, and
that Respondent had an expressed union animus of a
discriminatory nature concerning union adherents as
revealed by statements of Garner on September 28, 1976,
to Foremen Spangler, Farmer, and Null, and to Foreman
Brown on October 1, 1976. Considering this, the disparate
treatment of Porter, as compared to the treatment of
Morgan and a journeyman or two involved in the
discussion on October 4, 1976, with Porter, takes on
meaning. The facts in this case reveal that Respondent's
concern for failure of production was because of alleged
standing around, bulling, talking, and being out of the
assigned work area. The disparate treatment accorded to
Porter as regards this incident and as compared to the
treatment of Morgan and the other employees, persuades
that General Foreman Null's discharging of Porter was
discriminatorily motivated because of belief of his union
activities. Accordingly, such conduct is violative of Section
8(a)(3) and (1) of the Act. It is so concluded and found.
On October 4, 1976, the Union filed with the NLRB a
representation petition concerning the electrical employees.
On October 5, 1976, the Union filed an unfair labor
practice charge concerning the discharge of Lanny Choate,
allegedly on September 29, 1976.
Interrogation of Spencer by Schad 35
On or about October 5, 1976, Field Superintendent
Schad and journeyman electrician Spencer had a conversa-
tion. In such conversation Spencer and Schad discussed the
discharges of several employees, including Jerry Porter.
Spencer told Schad in effect that he believed he was going
to be discharged because of his union activities. Schad
asked Spencer if there were any justification for such belief.
discredited. In general, I found Spencer's testimony more complete and
believable as to details.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spencer told Schad there was no more justification for
sending him out (firing) than for sending anyone else out.
Schad asked Spencer if he had been talking about union
activities. Spencer told Schad that he had not done more
than voice an opinion if anyone asked him. Schad told
Spencer that the only reason he would be fired was if he
didn't do his job.
Contentions and Conclusions
The General Counsel contends that Respondent, by
Schad, engaged in unlawful interrogation of Spencer as to
his union activities. Respondent denies that unlawful
interrogation occurred.
Considering the facts in total context and Schad's
assurance that Spencer would only be fired if he didn't
perform his work, I am persuaded that the evidence does
not reveal interrogation of the type which interferes with,
restrains, or coerces employees in the exercise of Section 7
rights and within the meaning of Section 8(a)(l) of the Act.
Accordingly, it will be recommended that the allegations of
unlawful conduct in such regard be dismissed.
Interrogation; Solicitation to Spy
On or about October 5, 1976, apparently an hour after
Spencer had his conversation with General Field Superin-
tendent Schad, Project Manager Lampton brought Chief
Security Guard Thornton to where Spencer was working.
Thorton and Spencer proceeded to have a conversation
outside of Lampton's presence.
As background, it should be noted that Spencer is a
member of the Muskogee County sheriff's patrol and in the
past had offered to assist security in the line of police work.
As background, it should also be noted that there was
much rumor and conjecture among the union adherents
that Gary Bishop had reported names of union supporters
to management. Apparently around this time, threats had
been painted on a latrine indicating a message to Bishop
that "he was a dead son-of-a-bitch."
Based upon the September 28, 1976, conversation
engaged in by Foremen Farmer, Spangler, Null, and
Garner, it is clear that Respondent had reason to believe
Spencer to be an active union adherent. Spencer's conver-
sation with Schad, however, revealed Spencer's concern
that he might be fired for union activities. It also revealed
that Spencer was trying to convey that he wasn't extremely
active. Considering this, I am persuaded that Respondent
believed union adherents to be involved in the threat to
Bishop and related matters of security and believed
Spencer to be a good source to obtain information thereto.
What occurred is revealed by the following credited
excerpts from Spencer's testimony and other facts as
found:
A. Mr. Thornton told me, when we first started our
conversation, that he had been to talk to me because J.
B. Garner - that they thought I was involved in union
activity, and that J. B. Garner had told Johnnie, or had
36 Thornton testified in denial that he asked Spencer questions about
employee union activities or that he solicited Spencer to report on such
union activities. Considenng the totality of facts and Spencer's demeanor as
asked Johnnie if I was not an - one of his men from
Muskogee, and if I was, to call me off and to tell me to
get out of it.
Q. And that was the way the - the way the
conversation-
And there really wasn't any discussion of your police
work or your assistance in stopping any threats or
violence on the project, or anything like that? Whatever
mention of that was purely secondary? Is that true?
A. No, sir. It was - when Thornton approached
me, he told me that Garner had told him that he
thought that I was one of his men, and that I was
involved in the union activities, and that he wanted me
to get out of it. And for him to come up there and see if
he couldn't get some information from me.
Then we went into a conversation that he asked
about the threats and union activity, and if I would tell
him who was involved in it.
Spencer also credibly testified to the effect that Thornton
questioned him as to who was involved in the union
organizing. Spencer told Thornton in effect that he did not
know all if he knew any of the persons. Thornton then
asked if Spencer would snoop around and if he found out,
would he let him know. Spencer told Thornton that he
would not do so. Thornton assured Spencer that no one
would know about his information but Thornton and
Spencer. Spencer told Thornton that he did not have a
right to know, that it was the employees' personal
prerogative if they wanted a union. Thornton asked
Spencer if he were in the Union. Spencer replied to
Thornton that he had an inactive Operating Engineers
book. Thornton then told Spencer that he needed to know
who was involved in the Union because of the threats and
things being done. Spencer told Thornton that he didn't
know of any threats. Thornton asked Spencer if he became
aware of threats would he let him know. Spencer told
Thornton that if he would hear that someone was going to
receive bodily harm or if there were to be destruction of
property or anything to do with the job, he would be the
first to try to stop it.36
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent's agent, Thornton, unlawfully questioned
Spencer as to his and other employees' union activities, and
solicited Spencer to spy on and to make reports on
employee union activity.
Considering all of the facts, I am persuaded that the facts
establish such unlawful interrogation, unlawful request to
spy on union activities, and unlawful soliciting of an
employee to report on the union activities of other
employees. I am persuaded that Respondent was con-
cerned over threats and potential damage, that Respondent
believed Spencer would be a source of information as to
whom they should look to as being behind such threats and
potential damage. Thus, I do not believe that the goal in
mind was a solicitation of information concerning union
a witness, I am persuaded that Spencer's testimony on such points should be
credited. Considering the logical consideration of facts, I have set the facts
in the sequence I am persuaded occurred.
1154
H. B. ZACHRY COMPANY
activity in general. However, I am persuaded that Thorn-
ton, an agent of Respondent, believed that the potential
wrongdoers were union adherents and that his field of
suspects would be limited and narrowed if he had such
information. Because of this, I am persuaded that his
questioning of Spencer and his request to Spencer to snoop
and to make reports on employee union activity exceeded
the permissible bounds of conduct. Accordingly, I con-
clude that Respondent, by Thornton, violated Section
8(a)(1) of the Act by interrogation of Spencer as to
employee union activity and by requesting Spencer to spy
on and to report on union activities of other employees. It
is so concluded and found.
Threat of Discharge
About a week after General Foreman Brown had
terminated Lanny Choate, Brown had another conversa-
tion with Choate as is revealed by the following credited
excerpts from Lanny Choate's testimony.
A. About a week after I was terminated, well, Mr.
Brown called me on the phone and asked me how
things were going; wanted to know how I was getting
along.
Q. Now, this is Sarge Brown?
A. Yes, that's Sarge Brown.
Q. OK.
A. During the course of the conversation he told
me that he had been present at a meeting called by
Richard Bentley, in which he informed all of the
supervisors that anybody suspected of holding a union
card or being in sympathy was to be fired.
But he said by the end of the day the information
had gotten to all the hands there; so the next morning, I
think he called another meeting and told all of his
hands that that was a lie; that there was no truth to that
rumor. But as soon as that was over, he called another
meeting of his supervisors again, and chewed them out
for letting the information leak out, and told them to go
ahead and follow his original instructions.
That was what the - Sarge Brown said the content
of the meeting was.
Although Choate was a discharged employee at the time,
the facts found herein reveal him to have been a
discriminatorily discharged employee in violation of
Section 8(a)(3) of the Act. It is thus clear that Choate was
an employee within the meaning of Section 8(a)(3) of the
Act. It is also clear that Foreman Brown is an agent of
Respondent and that his remarks constituted in effect a
threat of discharge of employees because of their union
activity. Ordinarily, one would be required to make a
finding that such conduct violated Section 8(aX)() of the
Act. Since I have already made a finding that Respondent,
by Foreman Brown, threatened employees with discharge
because of union activity and that such conduct is violative
of Section 8(aXl) of the Act, and since the remedy for such
conduct would also remedy the conduct alleged unlawful
herein, I do not find it necessary to make a finding of
31 Apparently at this meeting or another, Foreman Gnssom mentioned
that he was in favor of the Union. Lampton told Gnssom that he was not
concerned about the Union.
unlawful conduct or to establish a remedy for this conduct
alleged to have occurred on October 6, 1976.
Part of my reasoning in finding it unnecessary to make a
finding as to the alleged conduct on October 6, 1976, by
Foreman Brown is as follows. Brown was a witness
presented by the General Counsel in this case. Brown
testified as to only one meeting wherein Piping Superinten-
dent Bentley allegedly gave instructions to supervisors to
make unlawful discriminatory discharges. I do not credit
Brown's testimony on such point. Rather, I credit Bentley's
testimony as to an "ass eating" meeting around October 1,
1976, as to hearing that there was a rumor he had
instructed foremen to discriminatorily discharge union
adherents, and as to having a meeting with his men and
telling them that the rumor was false, and that he did not
change his instructions to his foremen. I am persuaded that
Brown got carried away in his talk with Choate and
embellished the truth with speculation. Accordingly, since
additional remedy is not required, I find it best not to make
a finding as to the alleged unlawful threat on October 6,
1976, by Foreman Brown.
Apparently, on October 6, 1976, Vice President Ham-
mond, in charge of labor relations, met with superinten-
dents and foremen and admonished them as supervisors
not to help organize the Union.
On October 7, 1976, Project Manager Lampton and
Electrical Superintendent Garner met with most of Gar-
ner's general foremen and foremen. What occurred was in
effect a "bitch-gripe" session designed to find out problems
concerning production and to get the production back on
the road. It appears that the foremen pointed out problems
concerning drinking water, toilets, tools, complaints con-
cerning being chewed out at meetings, and having to have
slips for absences for I day.
After this meeting Electrical Superintendent Garner met
with the foremen's crews without the foremen for a similar
type session. At a meeting with Foreman Darwin Dale
Choate's crew, Garner explained the rule concerning
staying in the work area as including an exception thereto
when an employee had to go elsewhere for tools and
supplies. Garner told the men in effect that they could have
coffeebreaks, etc. Garner was asked about what would
happen if the job went union. Garner told the employees
that he did not know. Garner told the employees he wanted
to know why there was dissension and why they wanted
union representation.
On October 8, 1976, Project Manager Lampton met with
all of his electrical supervisors. In effect, supervisors were
told to go back and tell employees that their problems
would be solved. The foremen of the crews, including
Darwin Dale Choate, Farmer, and Grissom, indicated that
they would go back and tell the crews of the Company's
actions and make an effort to get the desired production.37
Later, when management asked foremen about the results,
Choate and others related in effect that the employees had
a wait-and-see attitude.
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alleged Unlawful Discharges of Foremen Choate,
Farmer, and Grissom
On October 14, 1976, Respondent discharged Foremen
Darwin Dale Choate, Chester Farmer, and Billy D.
Grissom. The facts relating to the activity of the said
foremen in the union organizational effort, their statements
to other foremen or management about their union beliefs,
instructions given to said foremen concerning the direction
of their crews, the problems with production, and the
sequence of events leading to their discharge, have
previously been set forth.
Additionally, it might be pointed out that Foreman
Darwin Dale Choate was a brother to Lanny Choate and
William K. Choate, who are alleged discriminatees in this
case. Employees Porter, Spencer, and Carman, all who
were revealed to Respondent to be union supporters and
who are alleged discriminatees, worked under Foreman
Darwin Dale Choate.
Statements in the record relating to the use of pretrial
affidavits given to the NLRB reveal that Foremen Choate
and Farmer gave affidavits to the NLRB on October 12,
1976. There is no evidence or statement to reveal whether
or not Foreman Grissom gave an affidavit to the NLRB on
October 12, 1976. Nor is there any evidence to reveal that
Respondent had knowledge of Grissom's having given an
affidavit to the NLRB prior to his discharge on October 14,
1976. There is evidence to reveal that Respondent had
decided to discharge Foremen Choate, Farmer, and
Grissom, and that on October 13, 1976, Respondent
received notice that Foremen Choate, Farmer, and Brown
had given affidavits to the NLRB and delayed the
discharge of Foremen Choate, Farmer, and Grissom for
consideration of the implications of such action.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent discharged Foremen Choate, Farmer, and
Grissom because said supervisory employees failed or
refused to carry out instructions of Respondent to harass,
find fault with, and terminate employee union supporters
on the job, or to otherwise interfere with, restrain or coerce
employees in the exercise of their rights under Section 7 of
the Act.
The question of the lawfulness or unlawfulness of the
discharges of Foremen Choate, Farmer, and Grissom
concerns two issues. The first issue is whether Respondent
discharged Foremen Choate, Grissom and Farmer because
they gave affidavits to the NLRB on or about October 12,
1976. The second issue is whether Respondent in effect
directed the foremen to harass and terminate union
supporters.
As to the first issue, the facts clearly reveal that the
Respondent had decided to fire Foremen Choate, Farmer,
and Grissom before it had knowledge that any of the three
had given affidavits to the NLRB. Accordingly, the facts
do not reveal that Respondent has interfered with employ-
ee rights by discharging foremen or supervisors for giving
affidavits to the NLRB.
As to the second issue, the facts clearly reveal that the
Respondent was having production problems on the job.
The facts also reveal that although Respondent emphasized
a rule requiring employees to remain in their work area,
Respondent never gave Foremen Choate, Grissom, and
Farmer instructions to harass or terminate employees
because of their union activities. Nor, under the circum-
stances of the case, as a blanket matter, has it been
established that the emphasis of a work rule requiring
employees to stay in their work area was for discriminatory
reasons.
It is clear that Respondent was having a work production
problem, and the rule was designed to see that worktime
was for work. Employees have a right to self-organizational
activities, but such right does not insulate them from
nondiscriminatory rules relating to maintenance of produc-
tion. In the past, the unwritten work area assignment rule
had been in effect but apparently seldom needed. The
production problems in September 1976 emphasized the
need for reiteration of the rule. The nature of the vast work
project and job needs apparently created some uncertainty
of what the work area rule meant. For this reason there was
conclusionary testimony as to the rescinding and reitera-
tion of the rule. I am persuaded that what some witnesses
viewed as a rescinding of the rule was in effect a spelling
out of the rule with the necessary meaning as applied to
work on the project.
In sum, the facts do not reveal that Respondent directed
the foremen to harass and terminate employees because of
their union activities. The facts do reveal that there were
continuing problems. The facts also reveal that Respon-
dent in all probability was aware that Foremen Farmer,
Grissom, and Choate were strong union supporters and
probably believed that the continuing production problem
may have resulted in Foremen from divided loyalty by the
foremen. Supervisors' participation in union activity,
however, is not protected by the Act. Considering the
foregoing, it is concluded and found that Respondent's
discharge of Formen Choate, Grissom, and Farmer is not
violative of Section 8(a) 1) of the Act.
The Discharges of Spencer and Carman
Jim Spencer, journeyman electrician, and Tom Carman,
his helper, were discharged on October 18, 1977. The
assigned reason on Spencer's termination slip was as
follows: "No job progress. Does not perform his duties.
Lack of interest and job responsibility." The assigned
reason on Carman's termination slip was as follows: "No
job progress. Lack of interest and initiative. Does not [do]
his duties as expected."
Spencer and Carman worked under Foreman Darwin
Dale Choate until Foreman Choate was terminated on
October 14, 1976. On or about October 15, 1976, Foreman
Ben Weaver was placed over Foreman Choate's former
crew. Thus, on October 15, and for several hours on
October 18, 1976, Spencer and Carman worked on the crew
of Foreman Ben Weaver.
The facts reveal that Spencer was an active union
adherent and organizer, that he in effect was in the
initiating movement, was on the original 5 of the union
organizing committee, and that from September I to
October 18, 1976, Spencer talked to approximately 75
employees about the Union and successfully got about 12
1156
H. B. ZACHRY COMPANY
employees to sign union cards. It is clear that Respondent
knew of Spencer's union sentiments. Thus, on September
28, 1976, in a discussion between supervisors, including
General Foreman Null and Electrical Superintendent
Garner, Spencer was named as one of the three employees
believed to be involved in union activities. Following this,
in early October 1976, Spencer's union sentiments were
made known to both General Superintendent Schad and
Chief Security Guard Thornton.
Spencer's conversation with General Superintendent
Schad revealed a concern over getting discharged because
of his union activities. Respondent apparently believed that
Spencer's support of the union might be weakening, and
through Chief Security Guard Thornton attempted to
dissuade his support of the Union and to get him to
become an informer, for the major purpose of ascertaining
who might be behind some threats or potential damage to
property. Spencer refused to participate in such request or
to reveal the identity of union adherents.
Carman was a supporter of the Union, signed a union
card, talked to about 20-25 employees about the Union,
and successfully got about 3 employees to sign union cards.
In the last of September 1976, Foreman Bowden interro-
gated Carman about his union beliefs, and Carman
informed Foreman Bowden that he was in favor of the
Union.
There is dispute between Respondent's witnesses and
Spencer and Carman as to whether they were "working"
and performing their job in the sense of quantity of work
product achieved on Friday, October 15, 1976.
Respondent's witnesses testified to the effect that they
observed Spencer and Carman standing around and not
working, and that the quantity of work performed was
minimal. Spencer and Carman testified to the effect that
they did perform their work, that there were some
obstructions, and that some work had to be pulled out to
be done again. Considering Respondent's need for produc-
tion, if Spencer and Carman's work was at the level
testified to by the Respondent, I find it hard to believe that
supervisors would not have spoken to Spencer and Carman
at the time about their failure to work unless either
Respondent was seeking a means to discharge Spencer and
Carman or the two in fact were performing their work.
Considering this, I credit Spencer and Carman's testimony
over Respondent's witnesses Weaver, Null, and Garner as
to whether Spencer and Carman were working properly.
Respondent's policy concerning discharges at the time of
the discharges of Spencer and Carman, unlike its earlier
policy, was to have discharges reviewed. After a review of
facts related by supervisors concerning the discharges of
Spencer and Carman, top management approved Foreman
Weaver's request for the discharges of Spencer and
Carman. It must be noted that such review did not contain
an investigation of the facts or contentions presented by
Spencer and Carman.
On October 18, 1976, after about 2 hours work, Foreman
Weaver told Spencer and Carman that they were terminat-
ed and that General Foreman Null wanted to see them in
his office. Spencer asked why they were terminated, and
Weaver gave no reason for the termination. Spencer and
Carman went to General Foreman Null's office. Later Null
came in and told them in effect that they were fired
because Foreman Weaver had said they were not doing
their work. Spencer told Null in effect that Weaver was a
lying "son-of-a-bitch," to get Weaver and he would tell
Weaver to his face. Weaver was brought in, and Spencer
told Weaver that they had been terminated, that he wanted
to know what was going on. Weaver told Spencer that this
was right, that Spencer and Carman had been terminated
for not working. Spencer asked Weaver why he hadn't told
him the reason out on the job. Weaver told Spencer that
Spencer and Carman just didn't do the work. Spencer told
Weaver that he was a "damn liar," that he and Carman
had done their work, and had worked all day Friday.
Weaver told Spencer that he had been standing around
visiting with the pipefitters when he came by. Spencer told
Weaver that on such occasion he had been waiting for
material he had sent the helper for, that he had not been
engaged in conversation. Weaver continued to tell Spencer
that he and Carman had not been working. Spencer
continued to tell Weaver that he was a liar. Before Spencer
and Carman left, General Foreman Null told them that he
hated to see them go, that either or both could call him for
a personal recommendation for employment with any
subsequent employer.
Contentions and Conclusions
The General Counsel contends that Respondent discri-
minatorily discharged Spencer and Carman because of
their union activities in violation of Section 8(aX3) and (1)
of the Act. Respondent contends that it discharged Spencer
and Carman for cause and not for reasons violative of
Section 8(a)3) and (1) of the Act. Considering all of the
facts, I am persuaded and conclude and find that the facts
preponderate for a finding that Respondent discharged
Spencer and Carman because of their union activities in
violation of Section 8(aX3) and (1) of the Act. The facts
reveal that Spencer and Carman both engaged in union
activities, that the Respondent had reason to believe that
Spencer was a strong union supporter and that Carman
was a union supporter. Considering this and the evidence
of union animus exhibited by statements of Electrical
Superintendent Garner, the evidence of the discriminatory
discharge of Porter, the failure of supervisors to point out
to Spencer and Carman any alleged failure to work
properly on October 15, 1976, at the time of observation
thereof, I find it clear that Respondent's motivation in the
discharge of Spencer and Carman was because of their
union activities. Such conduct is violative of Section 8(aX3)
and (1) of the Act. It is so concluded and found.
On October 18, 1976, Respondent transformed its work
area rule (relating to employees staying in assigned work
areas, with such assigned work areas including areas
wherein employees had to go for needed supplies and
materials connected to their work) into a written rule.
The Discharges of William K. Choate and Richard
Lofton
Respondent discharged journeyman electrician William
K. Choate and his helper Richard Lofton on October 19,
1976. The assigned reason for termination on Choate's
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination slip was as follows: "Leaving Work area for
Extended Time Periods. Does not perform his duties [too]
much 'Horseplay.' " The assigned reason for Lofton's
termination on his termination slip was "Leaving work
area for Extended Periods with cause. Does not perform
his duties." 3 8
William K. Choate is a brother of Lanny Choate and
Foreman Dale Choate. All were involved in the union
organizing effort in this case. William K. Choate was on
the original organizing committee. From September I to
October 19, 1976, Choate talked to some 12 or 15
employees about the Union and successfully got 7 or 8
employees to sign union cards. Choate also talked with
Foreman Grissom, a fellow union organizing committee
member. The facts reveal that it was well known by
employees that all of the members of Grissom's crew had
signed union cards. Bartley, who became foreman after
Grissom was fired on October 14, 1976, was a member of
the crew and clearly knew that Choate had signed a union
card.
Lofton signed a union card sometime in September 1976,
and talked to three or four employees about the Union. At
a meeting, apparently on October 7, 1976, Lofton told
Electricial Superintendent Garner that he was Porter's half
brother, that Porter had been fired for being out of his
work area. It appears that Garner explained the work area
rule in its fullest context and that employees would not be
fired when getting materials or supplies. 39 It is also clear
that Foreman Bartley, Lofton's foreman at the time of
discharge, was aware that Lofton, as all other employees on
the crew, had signed a union card.
There is a dispute as to whether William K. Choate and
Richard Lofton were away from their assigned work area
and that this caused their discharge. Without going into
details, I find it sufficient to say that I credit the testimony
which supports a finding of fact that Foreman Bartley went
to where he thought Choate and Lofton should be, was told
by an employee that Choate had said that he was going to
the administration building to visit for a while, that Bartley
went to locate Choate and Lofton, located Lofton and told
him to get Choate and for both to come to get their
termination slips. Bartley told Lofton that they were being
terminated for being out of their work area and for not
producing work. Choate and Lofton thereupon met with
Bartley. What occurred is revealed by the following
credited excerpts from Bartley's testimony:
A. He left and went by and got Mr. Choate, and
they came to precipitator 4A where I was, and I told
Bill that they had been out of their work area for an
extended period of time, and that they weren't
producing the work that they should be producing, and
I was going to have to let them go.
Q. All right, sir, and did Mr. Choate say anything
in response to this?
A. Yes, he did.
Q. What did he say?
A. He said, "Thank you, Richard. Zachry needs
another lawsuit anyway."
3a It is clear from the record that by inadvertence the word "with" was
used instead of "without" on Lofton's termination slip.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent discharged William K. Choate and
Richard Lofton because of their union activities in
violation of Section 8(aX3) and (1) of the Act.
Considering all of the facts, I am persuaded that the
preponderance of the evidence does not reveal that
Respondent discriminatorily discharged William K.
Choate and Richard Lofton because of their union activity.
It is clear that William K. Choate and Richard Lofton
engaged in union activities and that Foreman Bartley knew
at least that they had signed union cards. I am not
persuaded, however, that their union activity was as strong
as that of some of the other alleged discriminatees. It is also
clear that there is strong evidence of union animus by
Respondent in this case. There is also much evidence that
Respondent had problems with production and work
progress. Considering all of the facts, I am persuaded that
the discharge of William K. Choate and Richard Lofton
was because the Respondent thought the two employees
were "goofing off." Accordingly, it will be recommended
that the allegations of conduct violative of discharges of
William K. Choate and Richard Lofton be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that Respondent discharged Lanny
Choate, Jerry Porter, Jim Spencer, and Tom Carman in
violation of Section 8(aX3) and (1) of the Act, the
recommended Order will provide that Respondent offer to
them reinstatement to their jobs, and make them whole for
loss of earnings within the meaning and in accord with the
Board's decisions in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962), except as specifically modified by the wording
of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
39 1 am persuaded that Lofton misunderstood the ramifications of the
work area rule.
1158
H. B. ZACHRY COMPANY
CONCLUSIONS OF LAW
1. H. B. Zachry Company, Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union 384 of the International Brotherhood of
Electrical Workers is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging employees Lanny Choate, Jerry
Porter, Jim Spencer, and Tom Carman, Respondent has
discouraged membership in a labor organization by
discriminating in regard to tenure of employment, thereby
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has
engaged in unfair labor practices proscribed by Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 40
The Respondent, H. B. Zachry Company, Muskogee,
Oklahoma, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, because of their
union or protected concerted activities.
(b) Threatening employees with discharge and other
reprisals because of their union activities or protected
concerted activities.
(c) Coercively interrogating employees about their or
other employees' union activities or desires.
(d) Soliciting employees to spy on and to make reports
on employee union activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Lanny Choate, Jerry Porter, Jim Spencer and
Tom Carman immediate and full reinstatement to their *
former positions or, if such positions no longer exist, to
substantially equivalent positions without prejudice to their
seniority or other rights previously enjoyed, and make
them whole for any loss of pay or other benefits suffered by
reason of the discrimination against them in the manner
described above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(c) Post at Respondent's project at Muskogee, Oklaho-
ma, copies of the attached notice marked "Appendix." 41
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof and be maintained by
Respondent for 60 consecutive days thereafter, in conspi-
cuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
4o In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
41 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Lanny Choate, Jerry Porter, Jim
Spencer, and Tom Carman immediate and full rein-
statement to their former positions or if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any loss
of pay or other benefits suffered by reason of the
discrimination against them.
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of
employment, or any term or condition of employment
because of their union or protected concerted activities.
WE WILL NOT coercively interrogate employees
about their or other employees' union activities.
WE WILL NOT solicit employees to spy on or to make
reports on employee union activities.
WE WILL NOT threaten employees with discharge or
other reprisals because of their union activities or
protected concerted activities.
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(a)(3) of the Act.
H. B. ZACHRY COMPANY
1160