Malta Construction Co.

National Labor Relations Board - Board Decisions

Oct 22, 1985

276 N.L.R.B. 1494 (N.L.R.B. 1985)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malta Construction Company and International
Union of Operating Engineers , Local 926. Cases
10-CA-19485, 10-CA-19608, and 10-RC-
12823
22 October 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 16 August 1984 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
Respondent filed exceptions and both supporting
and reply briefs, and the General Counsel filed ex-
ceptions and a supporting brief. The Petitioner-
Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
1. Contrary to the judge, we find that the Re-
spondent violated Section 8(a)(3) of the Act by dis-
charging employee Johnny Lambert for his refusal
to remove union insignia from his company hard-
hat, as requested by the Respondent.
As more fully set forth in the judge's decision,
crane operator Lambert, on the day in question,
wore his requisite company hardhat with two
union stickers on it while working. He also placed
union stickers on his crane. The Respondent's su-
perintendent, Fleeman, demanded that Lambert
remove all stickers or leave. Lambert removed the
stickers from the crane and removed his hardhat
from his head (not the stickers). The following day
Supervisor Root demanded that Lambert wear his
company hardhat and remove the union stickers
from it. Lambert wore the hat, but refused to
remove the stickers. Later that day both Root and
Fleeman directed Lambert to remove the stickers,
but Lambert refused stating: "I feel I have the
right to wear it." Fleeman issued Lambert an ulti-
matum to remove the stickers or be fired. Lambert
refused, stating, "Well, I feel I have a right to wear
that." Fleeman then discharged Lambert for failure
to follow instructions.
1 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings.
It is undisputed that the Respondent allowed its
employees to wear union insignia on articles of
their personal attire, such as T-shirts. There has
been no showing of disparate treatment. The pri-
mary issue is whether, as the judge found, an em-
ployer has the right to deny the use of company
property to employees for any purpose including a
union purpose . The judge criticized the General
Counsel for erroneously arguing that an employer
must have a safety or production basis to enforce a
worn-as-issued rule. We disagree with the judge's
recitation of the law, to wit, that "[n]o union or
employee has a statutory right to use company
property for a personal motive."
In Republic Aviation, the Supreme Court charac-
terized the task of the National Labor Relations
Board in the following terms:2
These cases bring here for review the action
of the NLRB in working out an adjustment
between the undisputed right of self- organiza-
tion assured to employees under the Wagner
Act and the equally undisputed right of em-
ployers to maintain discipline in their establish-
ments. Like so many others, these rights are
not unlimited in the sense that they can be ex-
ercised without regard to any duty which the
existence of rights in others may place upon
employer or employee. Opportunity to orga-
nize and proper discipline are both essential
elements in a balanced society.
The Supreme Court gave its imprimatur to the es-
tablished right of employees to wear union insignia,
stating : "[T]he right of employees to wear union
insignia at work has long been recognized as a rea-
sonable and legitimate form of union activity
399
Recently, in Kendall Co., we affirmed an em-
ployee's right to wear union insignia at work and
held that "a rule which curtails that employee right
is presumptively invalid unless special circum-
stances exist which make the rule necessary to
maintain production or discipline, or to ensure
safety."4
2 Republic Aviation Corp, 324 U S 793, 797-798 (1945). This case in-
volved, inter alia, the discharge of employees for wearing union buttons
3 Republic Aviation, supra at 802 fn 7, quoting with approval from the
Board's Intermediate Report in Republic Aviation , 51 NLRB 1186, 1188
(1943).
4 267 NLRB 963 at 965 (1983) The Board found that the record sup-
ported the conclusion that special circumstances, based on safety consid-
erations , j ustified the employer 's dress code policy prohibiting wearing
all nonwork-related items. The Kendall case differs on its facts from the
instant one in that in Kendall employees worked around machinery
which had a series of cams , levers, and gears wherein entanglement was
possible (and two amputations did occur). Similarly, in both Andrews
Wire Corp., 189 NLRB 108 (1971), and Standard Oil Co. of California, 168
NLRB 153 (1967), we found that the employers had not violated See.
Continued
276 NLRB No. 171
MALTA CONSTRUCTION CO.
According to the Respondent's witness, General
Manager Fleet, several reasons existed for its rule
prohibiting insignia (other than the Malta logo) on
its hardhats:
We purchase a very brilliant-colored hardhat.
It's orange. It's almost fluorescent. It aids us in
telling our employees from other employees
on this particular job. There's three to four ad-
ditional contractors on this job. We like to be
able to pick out our employees. Also, we use
the hat to aid operators and other truck driv-
ers and so forth in spotting employees that are
working around their equipment. It's a bright
color. It stands out. Now the reason we don't
want stickers on it is two-fold. Number one,
you place a sticker on the hat and that starts
to deteriorate the view of the hat. When
you're looking for it, its starts to make it blend
in more and people just don't put one sticker
on. They put more than one and before long,
the whole hat is covered with stickers and it
loses its value.
The second reason is that people place all
kinds of different stickers on their hats and
some of them are rather vulgar. And some of
them are-words, gestures-and some of them
with obscene pictures on there. Now these
people are out there representing Malta Con-
struction Company. They may be called upon
to stop traffic and are standing there holding
traffic back and the public comes in contact
with the people that are working with Malta.
And we don't want that type of an image
going out that would be represented by this
hardhat with stickers on it.
So, we feel, in order to control that, we do
not allow stickers on our hat, except for the
Malta logo.
The record establishes that employees work out-
doors during the daytime without impairments to
the Respondent's vision of its employees.
Fleet admitted in testimony that Lambert wore
only two stickers which did not obscure the orange
color:
Q. Now, isn't it a fact that the hat that Mr.
Lambert had had two stickers, one on either
side?
A. Yes, ma'am.
Q. And it did not obscure your view of the
orange. Is that correct?
8(a)(3) of the Act by prohibiting union insignia on their safety hats be-
cause the respondents had established their legitimate concerns about the
threat to safety In Andrews employees worked in a poorly lighted mill,
while in Standard Oil about 3000 employees worked in a refinery which
manufactured highly volatile, dangerous, and hazardous gases necessitat-
ing an elaborate safety precaution system.
1495
A. Well, I'm sure it obscured some of the
orange.
Q. But you could still see the orange?
A. Oh, yes, you could still see the orange.
Thus, the Respondent failed to prove that its
complete prohibition of insignia on its hardhats was
necessary to enable it to identify its employees.5
Further, in the circumstances of this case involving
the construction industry, the Respondent's public
contacts argument was not established by the evi-
dence. Finally, although the Respondent, on brief,
refers to the "defacing" of its hardhats, no evi-
dence of damage to the hardhats was produced and
this allegation is unproven. Therefore, the Re-
spondent failed to establish any special circum-
stances based on legitimate production or safety
reasons to justify prohibition. Accordingly, we re-
verse the judge's dismissal of the 8(a)(3) finding re-
garding Lambert.
2. The judge found, and we agree, that the Re-
spondent, in violation of Section 8(a)(3) of the Act,
discharged its employee Paul Hoback because he
engaged in union activities.
In analyzing the allegations regarding employee
Hoback, the judge allowed into evidence a state-
ment of Ronnie Simmons who did not testify at the
trial. The judge's rationale was that, although it
may be inadmissible under the Federal Rules of
Evidence, Section 10(b) of the Act gives judges
considerable latitude in applying the Federal rules.
He further stated: "It is neither General Counsel's
right nor privilege to suppress that which may be
probative in itself or that which may aid an assess-
ment of other evidence." We disagree. There
having been no showing that the Respondent was
unable to produce witness Ronnie Simmons at the
hearing, we reverse the judge and hold that Sim-
mons' statement constitutes inadmissible evidence
under Federal Rule of Evidence 804(a).
The judge erred in both his interpretation of the
Board's Rule 102.118 and his statement about the
General Counsel's lack of right or privilege to de-
cline to produce evidence. Contrary to the judge's
explication, Rule 102.118(a) clearly provides the
General Counsel with the obligation to refuse to
disclose certain evidence unless excepted by Sec-
tion (b) or (c).
Board precedent establishes that the require-
ments of Federal Rule of Evidence 804(a) must be
met for affidavits of an unavailable witness to be
admissible. Rule 804(a) provides for a prior good-
5 The record reveals that the Respondent's foremen, whom the em-
ployees should be able to differentiate from others on the jobsite, wore
white hardhats, not brilliantly colored ones . However, there is no indica-
tion that the employees were unable to identify the foremen.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith effort by the proponent of the statement to
obtain the declarant's presence at hearing in order
to meet the definition of unavailable witness. 6
3. We concur with the judge's overruling of the
10 objections in their entirety.
We additionally affirm the judge's resolution of
the challenges, with the exception of Lambert
whom we have found to be a discriminatee and
therefore eligible to vote.
ORDER
The National Labor Relations Board orders that
the Respondent, Malta Construction Company,
Conley, Georgia, its officers, agents , successors,
and assigns, shall
1. Cease and desist from
(a) Discharging employees for engaging in activi-
ties protected by Section 7 of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Paul Hoback and Johnny Lambert im-
mediate and full reinstatement to the jobs from
which they were discharged on 19 September 1983
and 9 August 1983, respectively, or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
make them whole for any earnings that they lost,
plus interest, as outlined in the remedy section of
the judge's decision.
(b) Remove from its files any references to the
discharges of Paul Hoback and Johnny Lambert
and notify them in writing that this has been done
and that evidence of the unlawful discharges will
not be used as a basis for future personnel action
against them.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
6 Valley West Welding Co., 265 NLRB 1597 (1982) In Valley West the
Board found an absent affiant's statement inadmissible because the Gener-
al Counsel failed to produce medical evidence to support its averment of
unavailability based on illness Here, the Respondent did even less to
produce the absent witness Indeed, there is no record of any attempt to
produce Simmons. Therefore, the judge should not have reversed his
ruling on the Simmons' affidavit in order to receive it into the record
Additionally, the judge erred in his failure to provide in the notice to
employees an offer of reinstatement to Hoback in conformity with the
recommended Order
(d) Post at its 1-675 project offices in Atlanta,
Georgia, copies of the attached notice marked
"Appendix."7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS ALSO ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that Case 10-RC-12823
be remanded to the Regional Director to open and
count the ballots of Paul Hoback and Johnny Lam-
bert and to issue a revised tally of ballots and an
appropriate certification.
CHAIRMAN DOTSON, dissenting in part.
I dissent from my colleagues' finding of an
8(a)(3) violation in the Respondent's discharge of
employee Lambert. In evaluating the legality of the
Respondent's rule prohibiting insignia on company
hardhats, I would, similar to the majority, utilize a
Republic Aviation balancing test.1 But contrary to
my colleagues, after balancing both the employer's
and employees' rights, I find that on the facts of
this particular case the employees' right to wear
union insignia was not significantly curtailed in that
they had ample alternative methods which they
could and did utilize to display their union adher-
ence.2 In fact, on the day prior to his discharge,
when Lambert was first admonished for placing
stickers on his crane and hardhat and directed to
remove them from both, Lambert was without ob-
jection by the Respondent wearing a T-shirt with
the union logo imprinted thereon.
While I agree with my colleagues that the
Board's task is to strike a proper adjustment be-
tween conflicting employer and employee rights, I
find that in this case "it cannot be maintained that
the Company's rule prohibiting the wearing of
decals on the safety hat deprived the employees of
7 If this Order is enforced by a Judgment of a United States Court of
Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
i Republic Aviation Corp . v. NLRB, 324 U S. 793, 797-798 (1945)
2 E g, employees wore union T-shirts and union watch fobs
MALTA CONSTRUCTION CO 1497
the right to identify themselves with the Union for
purposes of organizing other employees."3
3 Standard Oil Co., 168 NLRB 153, 161 (1967)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge employees for engaging
in protected activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Paul Hoback and Johnny Lam-
bert immediate and full reinstatement to their
former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights and privileges
previously enjoyed and WE WILL make them whole
for any loss of earnings they may have suffered by
reason of our discrimination against them, plus in-
terest.
WE WILL remove from our files any reference to
the discharges of Paul Hoback and Johnny Lam-
bert on 19 September 1983 and 9 August 1983, re-
spectively, and WE WILL notify them in writing
that this has been done and that evidence of the
unlawful discharges will not be used as a basis for
future personnel action against them.
MALTA CONSTRUCTION COMPANY
Director for Region 10 of the National Labor Relations
Board on November 21, 1983. Pending objections to the
election of October 21 , 1983, and challenges to certain
ballots were consolidated for hearing .' The complaints
alleged that Malta Construction Company (Respondent)
violated Section 8(a)(1), (3), and (4) of the Act by coer-
cive interrogations, threats against employees , and dis-
charges of several employees . The consolidated objec-
tions claim unlawful promises of benefits to employees in
exchange for support of the Union . The ballot challenges
are administrative challenges by the Board 's Regional
Office. Respondent 's timely , answer denied the commis-
sion of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evi-
dence and to argue orally . Briefs were submitted by the
General Counsel , Respondent, and the Union . All briefs
were duly considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand , and upon substantive , reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
1. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaints allege, Respondent admits, and I find
that Malta Construction Company is a Florida corpora-
tion engaged in highway construction with offices in
Conley, Georgia. Jurisdiction is not in issue. Malta Con-
struction Company, in the past 12 months, in the course
and conduct of its business operations purchased and re-
ceived at its Georgia facility goods and materials valued
in excess of $50,000 directly from suppliers located out-
side the State of Georgia. I conclude and find that Malta
Construction Company is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaints allege, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
Sharon Howard, Esq., of Atlanta, Georgia, for the Gener-
al Counsel.
Frederick A. Stuart and Robert 0. Sands, Esqs. (Ogletree,
Deakins, Nash, Smoak & Stewart), of Atlanta, Georgia,
for the Respondent.
Frank A. Shuster, Esq., of Decatur, Georgia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on January 18, 19, and 23, 1984,
in Atlanta, Georgia, based on charges filed by Interna-
tional Union of Operating Engineers, Local 926 (the
Union) on August 10 and September 20, 1983, and an
order consolidating complaints issued by the Regional
II. BACKGROUND
Respondent is a heavy contractor engaged in construe-
tion of overpasses and bridges on 1-675 south of Atlanta.
Hiring of employees began in June and continued there-
after as the need arose. The work force is composed of
the usual classifications such as equipment operators, la-
borers, carpenters, finishers, drivers, and mechanics.
Each of the bridges or overpasses is a work site for
crews although certain employees may work on more
than one site. Distances between work sites vary, and
each site is supervised by a foreman. Several superin-
tendents have the responsibility of more than one work
site and the respective foreman reports to the superin-
tendent. Administrative offices are maintained in a trailer
I All dates are in 1983 unless otherwise specified
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
central to the various work sites. Construction is limited
to one shift of employees for all work sites.
The Union, on July 29, filed a petition for an election
among dozer operators, backhoe operators, crane opera-
tors, and mechanics employed on the 1-675 project. The
election was scheduled for October 14, but was not con-
ducted due to an error on the part of the Board's Re-
gional Office. On October 21, the rescheduled election
was conducted and of 23 eligible voters, 10 votes were
cast for the Union and 8 against the Union. Five ballots
were challenged by the Board agent because their names
did not appear on the eligibility list. Objections to the
conduct of the election were filed by the Respondent on
October 28.
The two unfair labor practice charges, the challenges,
and the objections are before me for determination. The
pertinent record evidence offered by each of the parties
is summarized below.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Paul Hoback testified that he was employed by Re-
spondent in June as a backhoe operator. He acknowl-
edged receiving the Company's work rules at the time of
hiring. His primary work task was to dig footers for the
support columns. Hoback's work was performed at sev-
eral work sites and for several different supervisors. He
participated in the union campaign by wearing union T-
shirts on the job, handing out pamphlets, passing out
cards, wearing union stickers on his hardhat, watch fob,
and car, and by testifying for the Union at the "R" case
hearing.
When Hoback was hired, he was issued a company
hardhat and was instructed to wear it whenever he was
off his machine. He was also told that while he operated
his machine, he could wear his personal hardhat. Hoback
did wear the company hat as instructed about 50 percent
of the time. The other 50 percent of the time he was off
his machine, he wore his personal hardhat. Several other
operators also wore their personal hardhats while work-
ing. Hoback stated that five other employees, including
Lambert, had stickers of various kinds on their personal
hardhats which they wore while working. Of the em-
ployees with stickers on their hardhats, only he and
Lambert had union stickers on their personal hardhats.
Also, only he and Lambert placed union stickers on their
company-issued hardhats. Hoback did not know but as-
sumed the union sticker on his personal hardhat was
placed there by his father, the previous owner of the hat.
However, the union sticker on his company hardhat was
placed there by him on August 9. That same day, Super-
intendent Fleeman saw the union sticker on Hoback's
company hardhat and told Hoback to remove it or be
fired. Hoback removed the sticker. Hoback noticed that
day that all employees were wearing company hardhats,
and Fleeman was handing out company hats to all em-
ployees without one.
Hoback was never told to remove any union stickers
or insignia from any of his personal items whether he
wore them while working or while on the jobsite on his
own time. Only the union sticker on his company hard-
hat was questioned.
On August 22, Hoback had starter trouble on his back-
hoe. The machine required a repair and the following
day General Manager Fleet gave Hoback a warning for
abuse of equipment. The following week Hoback again
experienced starter problems but was not disciplined.
Saturday, September 17, Hoback reported for work at
7:30 a.m. He completed a hole he had started several
days before at 9:30 a.m. Superintendent Doug Archer, at
10 a.m., told him that a lowboy was coming to pick up
his machine and take it to the other end of the jobsite.
Hoback had dug a footer hole the previous week at the
site and Superintendent Burley Bonner told him to dig
the muck out of the hole down to the dry dirt. Hoback
began digging the muck out and going down about 2
feet. At 10:30 a.m., Bonner brought a laborer to the bole
and told Hoback he was taking too much out of the
hole. Bonner said only take 6 inches off the top. The
hole would then be filled with dry dirt. Hoback asked
for a front-end loader and operator to move the mud he
had already dug out. Bonner said he would send a
loader. At 10:45 a.m., Ronnie Simmons arrived with his
loader. Simmons began pushing the mud out of the way
and back filling the hole with dry dirt. Simmons' ma-
chine got stuck in the hole. Hoback offered to pull Sim-
mons free with his machine. Simmons suggested using a
cable so neither machine would be damaged. The labor-
er, Bonner's son, said he knew where to find a cable and
went to get it. In 15 minutes Simmons' machine was free
but within 10 minutes was stuck again. It took 5 minutes
to free the machine the second time. Hoback then re-
turned to his task but saw the time was 11:30 so he left
his machine and went to Simmons' machine to tell him it
was lunchtime. Hoback asked Simmons if anyone had
talked to him about the Union. Simmons responded that
no one had, but he had heard rumors. Hoback proceeded
talking to Simmons about the merits of the Union includ-
ing the benefits and higher wages. Hoback talked union
for 15 to 20 minutes. At this time, Bonner came up.
Hoback went back to his machine to get a sandwich.
Bonner told Hoback that his machine should not be shut
down and that Hoback was only trying to drag the job
out. Bonner also said all Hoback was doing was talking
about the union bullshit. Hoback replied that he was at
lunch and Bonner said he did not care what time it was,
Hoback was not going to talk about the union bullshit on
his job. Hoback asked Bonner what time it was and
Bonner said 11:55 a.m. Hoback then said, "We'll eat
lunch now." Hoback started to his car and Bonner
apologized for yelling saying he got mad when he came
up and saw that the backhoe was shut down and Hoback
was at Simmons' machine talking. Bonner added that he
did not care what time Hoback took lunch. Simmons
then suggested they eat but he needed a ride. Bonner of-
fered to take Simmons to a restaurant. Hoback said,
"Well, can I go with you?" Bonner said he could and all
three drove to a restaurant about 1 mile distant. Bonner
came back at 12:30 p.m. and picked them up. Hoback
stated that he finished the hole job about 12:45 p.m., and
Bonner instructed him to cut ramps for the dozer which
he finished about 3 p.m. As he moved his machine away
from the ramps, it broke down. When he reported his
MALTA CONSTRUCTION CO.
breakdown to his supervisor, Hoback was told to knock
off and go home. The following Monday, September 19,
Hoback was terminated.2
Hoback stated that he was not aware of a rule that
employees were to work until a supervisor released them
for lunch. Hoback took his lunchbreak from 11:30 a.m.
to 12:15 p.m. because an employee had told him that
period was lunchtime and because everybody else did so.
Mechanic Bill Self testified that he inspected the start-
er that burned on Hoback's backhoe and took it to an
electric repair shop. The shop confirmed what Self
thought, that the starter could only be damaged as it was
by keeping the starter engaged while the machine was
running. Both Self and the shop thought the damage re-
sulted from a deliberate act because the switch was not
faulty. Self, when placing the repaired starter back on
the machine, electrically bypassed the ignition switch so
that the starter was not connected to the ignition switch.
Thereafter the starter button for the machine was sepa-
rate from the ignition. Self wired the bypass to eliminate
the ease of a deliberate act based on the excuse, "The
switch must have stuck after starting." The repair of the
starter motor cost approximately $1000.
Johnny Lambert testified that he was employed by Re-
spondent as a crane operator on July 5. Shortly after
Lambert was hired, he had several conversations with
supervisors about the Union. On July 12 or 13 at the 285
bridge over Moreland Avenue, Fleeman conversed with
Lambert. Lambert asked him if the Company needed
more operators because Lambert knew of an operator.
Fleeman inquired about the man's qualifications to run
various pieces of equipment and asked if the man was
union. Lambert replied, "No, not that I know of " Flee-
man then asked Lambert if he was union and Lambert
said, "Well, I used to be." Fleeman stated, "Well, we
didn't want no union agitators on this job. It's running
pretty smooth the way it is and we don't want no trou-
ble "
On August 4, on another bridge site, Lambert was
working when Fleeman came onto the job right after
lunch. Lambert had some election pamphlets he received
at lunch from Union Agent Hall for distribution to em-
ployees. Lambert showed the pamphlets to Fleeman and
told him that they were for distribution to employees.
Fleeman asked if the union agent had offered money to
distribute the pamphlets. Lambert said, "No." Fleeman
said he understood there was to be an election soon and
asked Lambert how he was going to go. Lambert said,
"Well, I don't know." Lambert testified, "Fleeman said
he knew I used to work for the union and he said they
hadn't done me a lot of good-keeping me working and
this, that and the other. And he asked me if I'd go
around and find out who signed cards and who didn't.
And Dennis said they'd buy me some gas-you know
put me a little gas in my car if I'd find out and let them
know who was for and who was against it." Lambert
shook his head and said, "I don't know."
The next day Fleeman came to the jobsite to pass out
checks. As he gave Lambert his check, Fleeman said he
could not stand a man that would look at him straight in
2 Ronnie Simmons was not present to testify
1499
the eye and tell him a lie. He said he did not have no use
for them. Lambert replied if Fleeman was talking about
the Union, he was for it, believed in it, and was helping
the Union . Several employees were complaining about
their checks and Lambert walked over to them and said,
"Well, it won't be like this forever ." As Lambert walked
away, Fleeman told Lambert he would not be around
there on the day of the election anyway.
Over the weekend , Lambert took his own hardhat and
the company hardhat home and put union stickers on
both. Monday at work and while wearing his company
hardhat Lambert put a union sticker on his crane. Flee-
man came to his crane and told Lambert to take the
union stickers off the crane and the company hardhat or
go to the house . Lambert told Fleeman, "Well , I'll take
the one off the crane but I feel I have the right to wear
it on my hardhat ." Fleeman said , "No, either take it off
or go to the house." Fleeman asked , "What are you
going to do?" Lambert said, "Well , I guess I'll take them
off." Lambert removed the union sticker from the crane
and then had to operate it so he took his hardhat off.
Lambert left the union sticker on his company hardhat
that day. The next day Lambert began work wearing his
personal hardhat and the union sticker was still on his
company hardhat . During the morning, Gene Root came
to Lambert 's crane and asked Lambert to remove the
union stickers from his company hardhat . Lambert said
he would not take it off stating that he had seen other
people with stickers on all their hats. Root said the
policy is for all employees to wear company hardhats.
Lambert replied that he would wear the company hat
but he was going to wear the sticker too. Root said any
employee with stickers on company hardhats will have
to take them off. Lambert said , "Well, the only reason
you're doing is because the union stickers on my hat."
Root responded , "Well, Johnny, I ain 't going to argue
with you," and left. This day Fleeman was giving com-
pany hardhats to all employees who had not gotten one
before. Fleeman had an armload and was going to all the
jobsites to pass them out.
Later Root and Fleeman returned to the site. Root
told Lambert that he would have to start wearing his
company hardhat . Lambert complied and put on his
company hat . Root told him that the union sticker had to
be removed from the company hat. Lambert replied,
"No, sir . I feel I have the right to wear it." Fleeman
came over then and asked Lambert if he had signed the
company rules sheet. Lambert said he had. Fleeman told
Lambert , "You're going to have to take them stickers off
or you're going to be fired ." Lambert responded , "I feel
I have the right to wear these union stickers on my hat
and I'm going to have to do it. " Fleeman and Root then
told Lambert he was going to be fired . Lambert wanted
a witness , and another operator came up to the group.
Lambert testified that he had a conversation with Flee-
man, "Well, why are you firing me? Are you firing me
for not taking these union stickers off my hat? And he
said , no. Well , why are you firing me? And he said, for
failure to follow instructions. Well, what instructions am
I failing to follow? And he said, not taking them union
stickers off your hat. And he said, Now you go over to
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office and get your check." Lambert followed
George Fleet over to the office. Lambert told Fleet that
he was ready, willing, and able to go back to work and
wanted to go back to work. Fleet said if Lambert would
just take the union stickers off his hardhat, he could go
back to work. Lambert repeated, "Well, I feel I have a
right to wear that." Fleet said, "Well, I have to do my
job."
Lambert testified, "I thought I had a right to show my
union activities if we didn't hurt the hardhat . . . . I
don't think that people have the right to buy my free-
dom and my freedom and speech and what I believe in. I
don't think that they have the right to tell me to take
something off-the union stickers off my hat, if its not
going to hurt the hat, your honor."
Lambert acknowledged that when he was hired, he
was issued a company hardhat and was instructed to
wear it at all times, unless the equipment had a cover for
the operator. Fleeman told one of the operators that as
long as a hardhat met the OSHA standards, an employee
could wear it. Lambert's company hardhat was bare
when he first received it and several days later he was
issued a "Malta sticker" for his hat. Lambert stated that
at least two other employees had extraneous stickers on
their company hardhats. One had a "finger sticker" the
other a "Snoopy sticker." Other employees owning per-
sonal hardhats had various kinds of stickers on them.
Lambert was not aware of a rule which prohibited an
employee from putting stickers on the company hardhat.
He did recall that one employee drew a nude woman on
the back of his machine. After a few laughs from em-
ployees and Doug Archer, a supervisor, the "artist" re-
moved the drawing from the equipment.
Ronnie D. Tucker testified that he was hired by Re-
spondent as an operator about a week before Lambert
was discharged. When hired, Fleeman issued him a com-
pany hardhat. After a couple of days, Tucker com-
plained to Fleeman that the company hardhat was un-
comfortable and requested that he be allowed to wear
his personal hardhat. Fleeman said Tucker could wear
his personal hardhat but when Fleeman saw the hat with
a sticker affixed, he told Tucker to remove the sticker
and to apply a "Malta sticker" to the hat. Tucker testi-
fied that the sticker bore the legend, "Atlantic Steel
Erectors." The sticker had been placed on the hat by
Tucker's dad while working at Atlantic Steel Erectors.
Tucker's dad worked as a foreman for several companies
and out of an Atlanta local union unknown to Tucker.
Tucker put the "Malta sticker" on his personal hardhat
and wore it 3 or 4 days until Fleeman again gave him a
company hardhat and told him he would have to wear
the company hat. Tucker complied and wore the compa-
ny hardhat while on the job. Tucker, when actually in
his equipment, wears a baseball cap in keeping with the
company policy that operators who have covered equip-
ment are not required to wear hardhats inside their
equipment.
Eric Bonner testified that he is employed by Respond-
ent as a rodman. He was hired on July 18 as a laborer.
As a laborer, he worked at sites with operators and par-
ticularly he worked with Hoback. Bonner stated that
Hoback had a habit of taking more breaks and longer
breaks than he was supposed to have; however, there
was no set time for or number of breaks established by
the Company. Bonner did laborer work on several of the
bridge footers that Hoback worked on. The last one
Hoback worked on was bridge 9 and Bonner and Roden-
bucker worked as laborers and Simmons operated the
front-end loader. The supervisor was Bonner's father,
Burley. Bonner and Rodenbucker began work at 7:30
a.m. cleaning up the area around the footer hole prepar-
ing for the backhoe and loader. At 8:30 a.m., the two la-
borers were joined by Hoback and Burley Bonner.
Burley told Bonner and Rodenbucker to clean debris
from the hole. Burley told Hoback to dig the silt out of
the hole and, when he finished, to dig a roadway behind
a retaining wall alongside. Bonner knew it was 8:30 a.m.
because Rodenbucker had a watch but no one else in the
crew had one that day. Bonner and Hoback began work
on the footer hole and Rodenbucker was working farther
down the bridge. Bonner took a water break and, while
he was at the water jug, Hoback stopped his machine to
join Bonner. Hoback began a conversation with Bonner
about operator Patrick Thomas. Hoback said Thomas
was not a safe operator and that the Company only hired
him to vote against the Union. Hoback said that because
Thomas was not trained, if he killed someone it would
be the Company's fault. Hoback suggested that since
Banner's dad was a superintendent, he should try to get
on as an operator so he could vote for the Union. The
conversation lasted about 10-15 minutes. At 9:30 a.m.,
Rodenbucker left the bridge site and Simmons came up
with his front-end loader to move the silt that Hoback
had taken out of the hole and to put the dry dirt, which
was to be trucked to the site, in the hole. At 11:30 a.m.,
Burley came to the site to check on the progress and did
not stay long. About 15 minutes after Burley left,
Hoback was moving his backhoe to the other side of the
hole and as he came alongside Simmons' loader, Hoback
stopped his machine and climbed onto Simmons' loader.
Simmons kept his machine running for 5 minutes while
Hoback talked to him. Simmons then stopped his ma-
chine while Hoback talked to him. After another 5 min-
utes, Simmons turned his machine back on and Hoback
had to holler to be heard over the noise of, the machine.
Bonner heard Hoback mention Patrick Thomas and the
fact that he might kill someone and something about an-
other employee who had his machine taken away from
him. Simmons then began moving his machine to begin
working again and Hoback got down. Shortly, he
climbed back on Simmons' machine for several more
minutes, then started his machine and went back to dig-
ging. Hoback's conversation with Simmons lasted be-
tween 15-20 minutes. Within 10-15 minutes, Burley
came to the site again. Bonner went to Burley to get Ro-
denbucker's car keys and told him he wanted to talk
about Hoback. At this time, Hoback and Simmons were
still working on the silt in the hole and no dry dirt had
been placed in the hole. Burley asked why we were not
at lunch yet and Bonner said no one had a watch.
Bonner told Burley that Hoback had stopped working
and climbed onto Simmons' machine keeping Simmons
from working, and talked to Simmons for 15-20 minutes
MALTA CONSTRUCTION CO.
about the Union . Bonner left to go to Rodenbucker's car
and saw Burley climb up on Hoback 's machine . Burley
talked to Hoback and Bonner heard Burley say that the
dirt was none of Hoback's business and he should not
have stopped his machine . Bonner went to lunch and re-
turned between 12:30 and 12 :45 p.m.
Burley Bonner testified that he was employed by Re-
spondent as a superintendent on July 11. During the
interstate project, Bonner periodically supervised Paul
Hoback, an operator . Burley terminated Hoback on Sep-
tember 19 for deliberate interference with production
and refusing a work assignment and to follow instruc-
tions.3 The incident which precipitated Hoback's dis-
charge occurred on Saturday , September 17. Burley or-
dered Hoback's backhoe , moved to bridge 9. Laborers
Eric Bonner and Paul Rodenbucker were also on the
crew. The backhoe and Hoback reported to the bridge
site at 8:30 a.m. Burley instructed Hoback to remove the
silt from a footer hole so it could be backfilled with dry
dirt. Burley told Hoback to remove the silt which had
been washed in. Although Burley did not recall specify-
ing the depth to Hoback , the silt measured 6 inches to a
foot in depth . The footer area measures approximately 40
feet by 40 feet . Burley also told Hoback that trucks
would haul in dry dirt and a loader would help push the
dry dirt in the hole. Burley then left. Between 9:35 and
9:40 a.m., Burley returned to the site and saw that
Hoback was digging 3 feet to 4 feet deep. He told
Hoback that was too deep , all that was needed was to
remove the silt not the dirt . Hoback inquired about the
loader and Burley said it was on the way. As Burley left
the site, he took Rodenbucker with him to another job-
site.
A little after 10 a.m., Burley checked on the crew. He
saw that little had been accomplished since his last visit.
Burley asked Hoback and Simmons, the loader operator,
what the problem was. Hoback related that the loader
had gotten stuck and it took time to pull him free. Sim-
mons said that Hoback kept stopping his machine and
would not keep working . Burley then told Hoback that
the work for that day had to be completed . Hoback
asked , "If I get all this work done , can I get paid eight
hours and go home." Burley said , "No." Burley knew
that Hoback was prone to loafing because he had seen
him sitting on his idle machine before . Burley had also
worked with Hoback before and knew that he was con-
stantly shutting his machine down.
Burley left the site again and returned at 11 a.m. Again
the work was not progressing as it should . Burley asked
Hoback why so little progress . Hoback excused the
slowness with "too much dirt , too much silt" and that he
just could not keep going . Burley told him to keep on
going and do not fool around.
Burley next visited the work site at 11:45 a.m. Sim-
mons was taking dirt down into the footer area and
Hoback was removing silt. Eric Bonner approached
Burley saying he wanted to talk to him . Burley asked
3 Deliberate interference with production relates to i-loback's 15-,
minute conversation with Simmons wherein he climbed on Simmons' ma-
chine while he was working Refusing a work assignment and to follow
instructions relates to the inordinate time required by Hoback to remove
the silt from the footer hole
1501
why the crew was still working. Bonner replied that no
one had a watch so they did not know what time it was.
Bonner told his dad he wanted to talk to him about Paul
Hoback. Burley asked "what" and Bonner told him that
Hoback stopped his machine and stopped Simmons work
to talk to him about the Union. Burley asked how
Bonner knew they were talking union and Bonner said
he could hear part of what Hoback was saying. Burley
then went to Hoback's machine and asked why the delay
and why was he talking to Simmons. Hoback said he
was talking to Simmons about dirt. Burley told him he
did not have to talk about it just move it. Burley then
said, "Eric told me you was talking union business on
company time." Hoback denied talking union and stated,
"Well, I wasn't trying to hold up production. I'll be will-
ing to take 20 minutes off my lunchtime for the time that
I stopped and was talking." Burley said the other two
guys want lunch so "we'll take lunch from 12 noon to
12:45 today." Simmons asked for a ride to a restaurant,
and Hoback asked to go also. Burley told both employ-
ees, "okay" and dropped them off at a restaurant. Burley
returned them to the site at 12:45 p.m. About 1:30 p.m.
Hoback finished removing the silt from the footer.
The following Monday, Burley talked with Fleet
about Hoback and the events of the past Saturday.
Burley suggested discharge based on Hoback's perform-
ance on September 17, and Fleet agreed with him.
Hoback was terminated that day. Burley stated that he
waited until Monday to discharge Hoback because the
office employee who issues paychecks does not work on
Saturday, and due to the coming election, he wanted to
talk it over with Fleet first.
Dennis Fleeman testified that he was employed by Re-
spondent as a superintendent in July. In mid-July, Lam-
bert suggested to Fleeman that the Company could hire
a friend of his as an operator. Fleeman asked Lambert
what the man could do but Lambert was vague as to the
man's abilities other than to say that he could do what-
ever was needed of him. Fleeman denied that the union
was ever mentioned in this conversation. On August 4
while Fleeman was on the jobsite, Lambert approached
him and said, "See here what a fellow gave me at lunch-
time to pass out." Lambert may have said the pamphlets
came from a union agent but Fleeman could not recall.
Fleeman told Lambert what he does before work, at
lunch or after work is his business. Fleeman said he was
only concerned about working time. Fleeman did recall
stating to Lambert that he knew an election was upcom-
ing but denies asking Lambert how he was going to
vote. Fleeman also denies asking Lambert if the Union
was paying him to pass out the leaflets or making any
statements about wages.
The next day while Fleeman was passing out pay-
checks, one of the employees complained that his check
was short. Lambert yelled from his crane that his check
was wrong too and it happened every week. Fleeman
went to the crane and told Lambert he did not have to
defame the Company by yelling and calculated Lam-
bert's hours for the week which was identical to the
check. Lambert said, "You guys just don't like me be-
cause I'm a union organizer." As Fleeman left, Lambert
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made some remark and Fleeman turned and said to him,
"I can't stand for someone to deceive me or give me
untrue statements." Fleeman had thought Lambert was
procompany since hiring because Lambert had said the
Union did him wrong on his last job where a union man
with a book had bumped him off his job. Fleeman denied
telling Lambert he would not survive his employment
until election time.
On the following Monday, Fleeman saw Lambert put
a union sticker on his crane. Fleeman also saw that Lam-
bert had placed union stickers on his company hardhat.
He approached Lambert who was wearing a T-shirt with
a union emblem on it and told him to take the union
stickers off the crane and off the company issued hard-
hat. Lambert removed the stickers from the crane but
not the hat. Fleeman told him again to take the sticker
off the hardhat. Lambert said he would have to check on
it first. Fleeman told him to check whatever he wanted
to but take the union sticker off the company hardhat.
Fleeman's orders were prompted by company policy of
not allowing employees to deface company property.
Fleeman stated that defacement included any labeling
other than what the Company wants on its property;
"The Company does not want to be associated with any
other activity or whatever with regard to its property
and company designation." The next day Fleeman saw
Lambert wearing his personal hardhat with union stick-
ers on it. Fleeman reported this to Root. He and Root
went to Lambert and Root told Lambert he would have
to wear his company hardhat instead of his own hat.
Fleeman, although engaged with pile driving employees
about the job, also heard Root tell Lambert that the
union stickers would have to be removed from the com-
pany hat if he wanted to continue working for the com-
pany. Root then told Lambert that if he did not remove
the stickers, he would have to go to the office and get
his paycheck. Lambert went back to his crane and Flee-
man joined Root to leave for the office.
Fleeman was the first superintendent hired and, by the
end of July, there were 50 employees on the payroll. An
additional 10 or more employees, were hired during the
first week in August. The original supply of company
hardhats numbering about 20 did not last through July.
An additional supply of hats was ordered and was re-
ceived in early August. On August 8, only one-half
dozen hats needed to be issued among the 50-60 employ-
ees on the payroll at that time. Thereafter, company hats
were available, and they were issued to employees as
needed. Fleeman told each man to wear the company
hat issued to him.
George Fleet testified that he had been general manag-
er of Respondent's Atlanta office for 1 year. He has the
responsibility for- bidding highway and construction
work, staffing the jobs, and completing the jobs. Fleet
hires a project manager and superintendent who in turn
hire the tradesmen. Gene Root was project manager for
the 1-675 project. Although Fleet has the ultimate au-
thority for discipline, the project manager and superin-
tendents do have authority to discipline. Albeit not all
discipline is discussed with Fleet ahead of time, both
Lambert's and Hoback's discharges were discussed with
Superintendent Fleeman, Bonner, and Project Manager
Root.
Fleet stated that Lambert was terminated for not fol-
lowing directions and defacing company equipment. The
equipment in question was his crane and company hard-
hat. The defacing was placement of union stickers on his
crane and company hardhat on August 8. Fleet only saw
the stickers on the company hardhat on August 9 just
before noon. Fleet was aware of the union stickers on
August, 8 through reports from Superintendent Fleeman
and Project Manager Root. Fleet had told his supervi-
sors to report discipline to him since the union petition
had been filed on July 29. Fleet wanted to maintain con-
trol 'during the critical preelection period. Fleeman was
instructed to tell Lambert to remove the union stickers
from both the crane and the company hardhat on August
8. On August 9, Root requested Lambert to remove the
union stickers from the company hardhat. Later Fleet
was at a work site and Lambert told him that Root had
just terminated him over the stickers on his hat. Lambert
asked if he could go back to work on the crane. Fleet
told Lambert, "You can go back to work on the crane if
you remove the stickers from your hardhat." Lambert
declined to remove the stickers. Fleet told Lambert,
"Why don't you just wear the Union T-shirt that you
wore the day before?" Fleet said the Company had no
objections to the T-shirt but did object to union stickers
on company equipment. Fleet told Lambert again, if he
took the stickers off he could go to work. Lambert said,
"I can't do that." Fleet and Lambert then went to the
office where Lambert was issued a termination check.
Fleet asked Lambert to return the company hardhat,
Lambert said he needed the hardhat for evidence so
Fleet let him go with the hat. Lambert's refusal to
remove the union stickers from the company hardhat
constituted the "failure to follow directions."
Fleet stated that the company policy was for all em-
ployees to wear company hardhats but during the first
month the supply of company hardhats were depleted.
As of August 8, hardhat supplies were renewed and
those employees already hired but without company
hardhats were issued hats that day. No employee was
disciplined for wearing their own hardhat during the
shortage of company hats. Lambert was the only em-
ployee disciplined for placing stickers on a company
hardhat and was also the first to do so. Other employees
who placed stickers on company hardhats were not dis-
ciplined because they removed them when requested to
do so. The only sticker authorized for a company hard-
hat is the "Malta logo" sticker supplied to employees.
After August 8, all remaining company hardhats in in-
ventory were issued as new employees were hired.
Hoback had placed a union sticker on his company
hardhat on August 9. He was asked that same day to
remove it and did so. Fleet was aware that Hoback testi-
fied at the "R" case hearing on August 16.
On August 23, Hoback received a warning for suspi-
cion of abuse of equipment relating to the starter motor
on his backhoe. The equipment mechanic, Bill Self, re-
ported to Fleet that the starter motor was completely
burned inside and required extensive repairs. Self stated
MALTA CONSTRUCTION CO.
to Fleet that the electric company which repaired the
starter opined that the damage resulted from a deliberate
act. Self also told Fleet that he thought the starter was
deliberately burned because such damage could only
result from the operator holding the starter switch in the
on position while the machine was running. Fleet, based
on the reports of damage, authorized a warning only be-
cause in his opinion the damage could have been caused
by neglect and not deliberately done. Fleet questioned
Hoback as to whether the damage was deliberate.
Hoback stated to Fleet that all he knew was he turned
the machine off and was not able to restart it. Hoback
was the only employee who received a warning for the
starter damage because at the time of the damage, he
was the only employee operating the equipment. Hoback
also was the only employee to receive a warning for
abuse of equipment since the job began and it was Ho-
back's first warning. Hoback was discharged for inci-
dents that occurred Saturday, September 17. The reasons
for Hoback's discharge were, failure to follow instruc-
tions and interference with production. Shutting down
his machine and hopping on other equipment resulted in
two pieces of equipment not working constituting inter-
ference with production. Hoback's failure to perform the
task of removing silt from a footer hole in a reasonable
amount of time constituted his failure to follow instruc-
tions. Fleet received from Superintendent Burley Bonner
on Monday, September 19, the facts of Hoback's work
deficiencies of Saturday. Bonner recommended discharg-
ing Hoback, and Fleet, without further investigation,
agreed that Hoback should be discharged.
Fleet stated that generally lunchtime was 11:30 a.m. to
12:15 p.m. but whether employees quit exactly at 11:30
a.m. depended on what task they were doing and where
in the stages of performance they may be at 11:30 a.m.
Employees sometimes on their own will complete a task,
then go to lunch, or a foreman or superintendent may
direct them to complete a certain task before going to
lunch. The shutdown of equipment is not automatic at
11:30 a.m.
Fleet conducted Respondent's election campaign about
2 weeks before the election. Although he may have
talked to employees about the election and Respondent's
desire to remain open shop before that time, no orga-
nized campaign was begun until just before the election.
Fleet talked to all the employees eligible to vote in the
election individually on the job.
William Root testified that he has been project manag-
er for Respondent for 7 months. As project manager, he
has the responsibility for planning, scheduling work, and
overall management of the 1-675 project.
Root was involved with Lambert on August 8. Late
that afternoon Fleeman reported to Root that Lambert
had placed union stickers on his crane and company
hardhat. Fleeman said he told Lambert to remove all the
union stickers from company equipment, and Lambert
immediately removed the stickers from the crane. Lam-
bert then told Fleeman that he (Lambert) would have to
think about removing the union stickers from the compa-
ny hardhat. Root did not pursue the matter that day due
to the lateness of the hour. The following morning, Flee-
man reported that Lambert was wearing his personal
1503
hardhat with union stickers on it. Root touched base
with Fleet because of the union petition situation and
then proceeded with Fleeman to see Lambert. As Root
approached the site, Lambert came out to meet him
wearing a "miners hat" with four union stickers on it.
Root told Lambert he could not wear the "miners hat"
and would have to wear the company-issued hardhat.
Lambert went to his crane, took off the "miners hat,"
and put the company hardhat on. His company hardhat
still had the union sticker on it. Root told Lambert to
remove the union stickers from the company hardhat if
he wanted to continue working for Malta. At the time,
Lambert was wearing a union button and Root told him
he could continue wearing the button but had to remove
the sticker from the- company hat. Lambert said he
would rather quit than remove the stickers. Root asked if
Lambert were quitting and Lambert replied, "No, I'm
going back to work on the crane." Root told him he
could not work with the stickers on the hardhat. Lam-
bert asked, if he continued wearing the stickers, was he
fired. Root said, "If you refuse to take the stickers off,
that is exactly the situation." Lambert did nothing and
Root told him to go to the office and pick up his check.
Root had not seen other employees with stickers of any
kind on their company hardhats. He was aware that six
to eight employees had worn their personal hardhats
during the period that new company hats were on order,
but all employees had company issued hats either August
8 or August 9. The job began with approximately 20
hardhats on hand which were exhausted by late July.
Additional shipments of hats were expected from corpo-
rate headquarters and in several instances were received.
On one occasion, the supply truck did not have hats in
the shipment so hats were purchased locally to refill the
inventory.
IV. ANALYSIS AND CONCLUSIONS
A. Hoback's Warning of August 23 and Discharge of
September 19
The General Counsel contends that both Hoback's
warning for abuse of equipment and his discharge were
motivated by Respondent's knowledge of Hoback's
union activity and the fact that Hoback testified at the
"R" case hearing of August 16.
Respondent admittedly knew of the union campaign in
late July. Within a week Hoback affixed a union sticker
to his company hardhat and was told to remove it,
which he did. Hoback also wore a union T-shirt to work
during the union campaign. Thus, Respondent's knowl-
edge of Hoback's union activity predates his warning
and discharge as well as his testimony in the "R" case.
This is not a case where the company's knowledge of an
employee's union activity originates in the hearing room
when the employee is called to testify on behalf of the
union. There is no evidence supporting any causal con-
nection between Hoback's testimony and the discipline
he received. The single fact that the testimony predates
the warning discipline by 1 week and the discharge by I
month is insufficient to infer that the testimony was a
motivating factor. The warning, itself, rests on an admit-
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted and/or uncontroverted fact that the starter on Ho-
back's machine was seriously damaged. The record evi-
dence shows convincingly that Hoback was responsible
for the damage either through negligence or a deliberate
act. The General Counsel's argument that Respondent's
warning suggest uncertainty on its part lends credence to
Respondent's action. Had Respondent felt certain of
either negligence or an intentional abuse, Hoback could
have been discharged rather than warned for damage
that was unusual absent special circumstances. Likewise,
the delay cited by the General Counsel was reasonably
explained by Self, the mechanic, who was not able to get
to Hoback's machine to effect a repair until the employ-
ees had quit for the day. Thus, the delay was simply
caused by time consumed for the repair and evaluation
of the damage. In addition, Hoback was confronted by
Fleet about an intentional act and Hoback denied any
such intent.
I conclude and find, therefore, that the warning issued
to Hoback was not motivated by Hoback's union activity
and more particularly that the Respondent was not moti-
vated by Hoback having testified at the "R" case hear-
ing. Further, I conclude and find that Respondent, based
upon the nature of the damage, would have disciplined
Hoback as it did, even if Hoback had no history of union
sympathy.
I shall, accordingly, dismiss paragraph 6 of the com-
plaint in Case 10-CA-19608 pertaining to Hoback's disci-
pline.
With regard to Hoback's discharge, the General Coun-
sel contends that the record evidence shows that Hoback
did not refuse a work assignment nor did he interfere
with production. Her contention rests on the fact that
Hoback followed his supervisor's instructions to dig silt
from the footer hole. Albeit he may have taken longer to
complete the job than was anticipated he did not refuse
to work. The General Counsel buttresses her contention
with arguments that Hoback understood he had the
whole day to remove the silt and did, in fact, finish the
assignment that same day and that Hoback was never
made aware of the distinction between silt and wet dirt,
It is clear to me, as it was to Hoback that Superintendent
Bonner wanted to complete the filling of the footer hole
that day not just the removal of the silt. Hoback's inordi-
nate time spent on removal made completion of the
whole job that day impossible. However, the cause of
the failure to complete the whole task in one day can
partially be traced to the second reason for his discharge.
Hoback repeatedly shut down his machine, for one
reason or another, and on at least two occasions that
morning to engage in conversation about the Union.
Each such shutdown consumed 15-20 minutes and only
occurred after Superintendent Bonner had exited the job-
site after having made an inspection. Obviously, Hoback
was prone to malinger when supervision was not on the
site. This particular characteristic was admittedly known
to Superintendent Bonner prior to the work instructions
of Saturday. Although Hoback denies loafing and ex-
plains his machine shutdowns by a lack of specific break-
times or rest periods, his testimony as a whole including
his guarded and defensive demeanor when explaining his
work ethic, convinces me that he was not the continuous
worker he would have me believe. I also discredit his
testimony that he had his watch on Saturday. In addition
to his demeanor, I note that he stated he sought the time
of day from Superintendent Bonner when Bonner came
back to the site about 11:55 a.m and up to that point in
time Hoback had done nothing normally attendant to
lunchtime. He had not gotten his sandwich which was
either in his machine or his car, and he had not told
anyone else, particularly Simmons, that lunchtime had
arrived. The General Counsel argues against the estima-
tions of time by Respondent's witnesses and for Hoback's
specific testimony of the times. In my view, Hoback's
testimony of times was patterned to establish lunch time
as the period of Hoback's conversation on Simmons' ma-
chine. A fact I could not find even if Hoback's times
were accurate.4 Hoback shut down his machine specifi-
cally to converse with Simmons while they were sup-
posed to be working. The ongoing union campaign was
the subject of the conversation and consumed 15-20 min-
utes. Superintendent Bonner returned to the site while all
were working and then learned that Hoback had taken
time out to talk to Simmons about the Union. Hoback's
protestations against talking union during worktime I do
not credit. It is completely clear to me that Hoback dis-
regarded his worktime to discuss union-related subjects
with employees that Saturday. It is equally clear to me
why Superintendent Bonner would be displeased with
Hoback's performance that Saturday, but the inquiry
does not end there. Superintendent Bonner and other
employees were aware of Hoback's tendencies to waste
4 As previously noted, Ronnie Simmons did not testify, however, Re-
spondent at trial offered a statement (R Exh 8) taken from Simmons
during the investigation of the charge Both the General Counsel and
Charging Party objected to its admission albeit the General Counsel con-
firmed Simmons' prospective testimony by taking an affidavit from Sim-
mons herself I rejected the exhibit on strict interpretation of the Federal
Rules of Evidence Respondent renewed its offer of R Exh 8 in brief
On July 13, 1984, I ordered General Counsel to produce to me the affida-
vit of employee Ronald Simmons taken by her during the investigation
stage of Case 10-CA-19608 The General Counsel refused to produce the
affidavit citing the Board's Rule 102 118. In my view, Rule 102.118 does
not apply to my order or her refusal to produce The General Counsel
also, in part , argues that the Simmons' statement does not possess "equiv-
alent circumstantial guarantees of trustworthiness," as stated in the Fed-
eral Rules of Evidence Suffice it to say, that the trier of fact in his
search for the truth may, and at times must, rely on evidence that he, in
his discretion, considers to have weight Here, albeit the Federal Rules of
Evidence may dictate inadmissibility, Sec. 10(b) of the act provides that
Board hearings, "shall, so far as practicable, be conducted " (Emphasis
added) The congressional history of Sec 10(b) shows that the phase, so
far as practicable , was intended to give considerable discretion to the ad-
ministrative law judge with regard to hew closely the rules of evidence
are applied In addition, the General Counsel cited the Board case, Alvin
J. Bait [Bart], 236 NLRB 242 (1976) The Board in that case stated that it
need not reject probative evidence because of its technical hearsay qual-
ity. Obviously, whether evidence is probative cannot always be decided
by a mechanistic application of a rule. Particularly, where the evidence
under scrutiny exist, in part, in the case files of the General Counsel It is
neither the General Counsel's right nor privilege to suppress that which
may be probative in itself or that which may aid an assessment of other
evidence. The public rights which are at stake cannot and should not be
subjected to qualification by individual whims of counsel. My order and
the General Counsel's response are made a part of this record as Exh C-
2 and 3, respectively Upon reflection, and due to the inferential guaran-
tee of trustworthiness, I reverse my ruling on R Exh 8 and receive it
into the record for the limited purpose of comparison with events testi-
fied to by Paul Hoback with regard to the context of the conversation
between he and Simmons on September 17 on Simmons' front-end loader.
MALTA CONSTRUCTION CO.
time long before that fateful Saturday. The record is
silent on any prior discipline of Hoback for loafing or
wasting time. Indeed, Superintendent Hoback stated that
he had not disciplined Hoback before for wasting time
nor was he aware of such discipline from other supervi-
sors. Of course, this was the first occasion that Hoback
intermixed his work habits with union conversations, a
fact that Superintendent Bonner does not deny other
than to state the discharge had nothing to do with the
Union. Whether I personally approve of employees using
worktime for other than work has no bearing on my de-
termination here, nor does the fact that an alleged discri-
minatee is discredited on crucial facts in his testimony
bear upon the ultimate fact if evidence of a violation is
otherwise shown. Superintendent Bonner's prior condo-
nation of Hoback's work habits, through inaction, and
his acceptance of such a poor work performance, does
bear on the ultimate fact. That Saturday was no different
than any other work day for Hoback except for the sub-
stance of his conversations. This was the first time
Hoback wasted his worktime and talked union. Superin-
tendent Bonner decided that this time it would be the
last and discharged Hoback. Under the Wright Line test,
the General Counsel has sustained her burden of present-
ing a prima facie case of discrimination in the discharge
of Hoback. (Wright Line, 251 NLRB 1083 (1980).) I am
constrained to conclude, and find, that a motivating
factor in Superintendent Bonner's decision to discharge
Hoback was the incident of the union conversation when
Hoback should have been working. But for the union
topic of conversation, Superintendent Bonner would
have done as he and other supervisors had done in the
past with Hoback; attempt to supervise him enough to
get a day's work out of him. In any event, I find that,
absent the union conversation, Superintendent Bonner
would not have discharged Hoback for failing to com-
plete the removal of silt from the footer hole. Respond-
ent's work rules list, "loafing when there is work to be
done," as an offense meriting a warning or discharge.
For whatever reason, Hoback was not previously disci-
plined as a result of his known work habits. Rather, he
was tolerated as an employee until he talked union on
the job. Albeit, Hoback could rightly have been dis-
charged for interfering with Simmons' work production,
discipline was only considered upon learning that
Hoback was talking union when he interrupted Simmons'
work. When, as here, a supervisor is motivated to disci-
pline an employee because of the employee's union activ-
ity, even though substantial reasons coexist for the disci-
pline, the discipline is in contravention of the Act and
must be remedied.
B. Lambert's Various Conversations and His
Discharge of August 9
Both Lambert and Fleeman recalled conversations
which took place on July I and 2 August 4, 5, and 9
with the exception of questions about the union affili-
ation of Lambert and one of his friends , a threat not to
hire union sympathizers , a promise of benefit to Lambert
if he reports on the union activity of employees, and a
threat to Lambert that he will not be employed on elec-
tion day , there is no dispute on the substance of the con-
1505
versations. Lambert's testimony is terse and fleeting but
shows that Lambert sought out Fleeman and initiated the
conversations. In each conversation, Lambert appeared
to be seeking something from Fleeman. Because Lambert
was the originator, I would expect more substance of
each conversation than the record shows. This is not a
situation where a supervisor has engaged an employee in
a conversation which the employee did not want to have
in the first place, making the employee's recall something
less than complete. Lambert, however, could only recall
bits and pieces of each conversation. It is clear that Flee-
man hired Lambert without any knowledge of Lambert's
union history or any attempt to ascertain Lambert's sym-
pathies. It is equally clear that Fleeman learned of Lam-
bert's apparent disenchantment with the Union sometime
after the job started. How Fleeman learned Lambert's
disenchantment is the inquiry. But almost contemporane-
ous with the knowledge gained is Lambert's revelation
that he indeed is a union sympathizer and intends to help
the Union organize Respondent. Interspersed with such
statements, Lambert testifies that Fleeman enlisted his aid
to discover those employees for the Union and, in return
for the information, Lambert can expect to get a little
gas in his car but Lambert equivocates his response.
The next day Lambert unmistakably takes issue with
employer and suggests a union would change things and
draws a personal afront from Fleeman wherein Fleeman
tells Lambert he does not like a liar. Lambert suggests in
his testimony that Fleeman called him a liar after Lam-
bert stated that Fleeman disliked him because he was a
union organizer. Neither Lambert nor Fleeman could
recall the conversations completely, and neither could
recall the chronology of the conversations. Both wit-
nesses were guarded in their responses, evading answers
when it suited their purpose for testifying. Lambert at-
tempted to show that Fleeman extracted information
from him, and Fleeman attempted to downplay whatever
information he got including that undisputedly given to
him freely. That is to say both witnesses were mentally
evaluating their responses beforehand. Lambert was cer-
tain to inject union sentiments in his testimony just as he
did on the jobsite. Obviously, it was Lambert's vocal
character to be vehement when expressing a view which,
in part, accounts for Fleeman's umbrage when Lambert
did an about face. Although Lambert's vocal character
was kept out of his testimony, much of the phrasing sub-
stance was included. I just do not attribute the phrasing
to the same person Lambert did. Lambert was not forth-
right in his testimony but rather appeared to be support-
ing a preconceived position which, at times, changed de-
pending on whether he was being interrogated on direct
or cross. Several critical facts of the General Counsel's
case either was changed by Lambert or augmented as he
testified. Given the undisputed facts which help set a cir-
cumstantial stage, much of Lambert's testimony is not
plausible nor does it follow a logical sequence with
regard to the conversations between Fleeman and Lam-
bert. Likewise, Fleeman's testimony at times was evasive
and guarded. I cannot fully credit either witness. The
General Counsel must prove her case with a preponder-
ance of reliable, credible evidence and even the discredit-
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of Respondent's witnesses without more evidence
does not carry the day for her. She must support her al-
legations. I do not credit Lambert in his versions of the
conversations with Fleeman. Thus, I conclude and find
that Fleeman did not interrogate Lambert about his or
other employees' union sympathies; that Fleeman did not
threaten to not hire employees engaged in union activi-
ties; that Fleeman did not threaten Lambert with dis-
charge for engaging in union activities; that Fleeman did
not solicit Lambert to report on the union activities of
other employees and did not promise Lambert any bene-
fit ("put a little gas in my car") for so reporting. Accord-
ingly, I shall dismiss paragraphs 7, 8, 9, and 10 of the
General Counsel's compliant in Case 10-CA-19485.
Lambert's discharge on August 9 was precipitated by
an undisputed event of August 8. Lambert placed union
stickers on his personal hardhat, his company hardhat,
and his crane. When advised to remove the union stick-
ers from his crane, he did so, but when advised to
remove the union stickers from his company hardhat,
Lambert refused. Lambert stated to his supervisor that
he had a right to display the union stickers on his com-
pany hardhat. The General Counsel 's arguments, not-
withstanding the record evidence, clearly show that new
hires were issued company hardhats to wear on the job-
sites. When the supply was diminished, employees with
personal hats (that met OSHA standards) were allowed
to wear them. As additional company hats were pro-
cured, the employees without an issue were given com-
pany hats and required to wear them. The latest and last
such issue of company hardhats occurred on August 8,
the day Lambert appeared for work with union stickers
affixed to his personal hat and the company hat. It is un-
disputed that those employees who wore their personal
hardhats on the job were allowed to and did display
stickers not related to Respondent, including union stick-
ers on their hats.5 Also, all employees once having been
issued a company hardhat were required to wear the
company hardhat. There is no evidence that any employ-
ee refused to wear the company hardhat at the time
when all employees possessed one. The single instance of
an ill-fitting company hardhat was apparently remedied
with a second issue. Questions raised by the General
Counsel relating to defacement or destruction of compa-
ny property are not helpful to my determination. The
General Counsel erroneously argues that an employer
must have a safety or production basis to enforce a rule
that company issued hats must be worn as issued. In the
last analysis, absent employees unrestrained prior use, an
employer has the right to deny use of company property
to employees for any purpose including a union purpose.
No union or employee has a statutory right to use com-
pany property for a personal motive. As previously
noted, if an employer has condoned employees' personal
use of its property but denies employees use of company
property for union purposes, it has displayed a discrimi-
5 Lambert's equivocal testimony that he was required to remove union
stickers from his personal hardhat, I do not credit for previously stated
reasons One witness for the General Counsel testified that he was or-
dered to remove union stickers from his personal hardhat but later re-
canted his testimony stating that the sticker he was ordered to remove
was the logo of another employer, "Atlanta Steel Erectors "
natory motive, and employees have acquired a right to
use the subject property for union purposes." Thus, any
denial of use based on union activity would be an unwar-
ranted restraint of employees' protected union activity.
In my view, an employer who has not allowed the per-
sonal use of its property by employees, can at any time,
even after a union campaign has started, deny its em-
ployees the use of its property for union purposes. Here,
Respondent has simply denied the use of its property for
a union purpose by employees. Just as simply, Lambert
refused to recognize such a restriction and continued
using Respondent's property for his personal union pur-
pose. Lambert did so under threat of discharge and in
spite of several subsequent attempts to have him comply
rather than be discharged. Lambert, for reasons known
only to him, preferred the discharge over compliance
and Respondent accommodated him.7 I, therefore, con-
clude and find that Respondent's discharge of Lambert
was not in contravention of the Act and shall dismiss
paragraph 11 of the General Counsel's complaint in Case
10-CA-19485.
In view of the uncontroverted explanation for issuing
company hats on several occasions and the lack of evi-
dence to evince any directed activity, I shall not address
the General Counsel's argument that Respondent's objec-
tive in distributing six hats on August 8 was to under-
mine the Union' s campaign.
IV. REPRESENTATION CASE RESOLUTIONS
A. The Challenges
Five ballots were challenged by the Board agent at the
election on October 21 because their names were not on
the election eligibility list." The parties stipulated on the
record that Adamson on the day of the election was em-
ployed elsewhere; Kindall, who had been on disability
leave, failed to see a physician to satisfy his recall to
work and was terminated the day of the election; and
Davis voluntarily quit October 20, the day before the
election. Thus, all parties were satisfied that Adamson,
Kindall, and Davis were ineligible to vote in the elec-
tion. The challenges to their ballots by the Board is
therefore sustained.
The remaining challenged ballots of Hoback and Lam-
bert are resolved in my findings above. Hoback, having
been found a discriminatee under the Act, is eligible to
cast a ballot and therefore the challenge to his ballot is
overruled. Lambert, having been found not to have suf-
fered discrimination at the hands of Respondent , is ineli-
gible to cast a ballot and therefore the challenge to his
ballot is sustained.
' Union uses , as here, are generally confined to the area of communica-
tion since any other use could encounter safety and production difficul-
ties qualifying such uses
4 I find Lambert 's argumentative approach and manner in questioning
the reason for his discharge with Fleeman to be instructive of his pur-
poses to be fired rather than to comply with a simple company rule.
8 Wayne Adamson, William Kendall, Tommy Davis, Paul Hoback, and
Johnny Lambert
MALTA CONSTRUCTION CO.
B. The Objections
Respondent objected to the conduct of the election
and to conduct effecting the results of the October 21
election as follows:
1. At various times prior to the election, International
Union of Operating Engineers , Local 926 (the Union) of-
fered financial inducement to employees to influence
their vote, including a reduction in initiation fees.
2. At various times prior to the election, the Union un-
lawfully promised employees that it would provide them
with benefits, such as health insurance and retirement
benefits, in exchange for their support of the Union.
3. At various times prior to the election, the union
interfered with employee freedom of choice in the elec-
tion by promising employees that they could buy mem-
bership "books" for a minimal price if the employees
supported the union, while stating that "books" were not
otherwise available or, if available, would cost the em-
ployees several hundred dollars.
4. At various times prior to the election, the union
interfered with employee freedom of choice in the elec-
tion by unlawfully promising employees that if the em-
ployees selected the Union, the Union would find jobs
for the employees through use of its hiring hall after
they left the employment of the company, but that the
hiring hall would not be available to them otherwise.
5. At various times prior to the election, the Union,
through its representatives and supporters, coerced, re-
strained, and intimidated employees in violation of their
rights under the National Labor Relations Act by threat-
ening physical force violence and/or sabotage.
6. At various times prior to the election, the Union,
through its agents, made deliberate misrepresentations of
facts within its knowledge which destroyed the laborato-
ry conditions required for the holding of a fair election.
7. Despite protest by the Company, an organizer of
the Union who engaged in certain of the unlawful con-
duct set forth in these objections was allowed to serve as
the observer during the election, thereby destroying the
laboratory conditions required for the holding of a fair
election.
8. By these and other acts not specifically mentioned
above, the Union and its representatives and supporters
engaged in unlawful conduct which interfered with the
employees' rights to freely choose a bargaining repre-
sentative and destroyed the prerequisite laboratory con-
ditions necessary for a valid election.
9. Region 10 failed to conduct the election as original-
ly scheduled on October 14 because the field examiner
assigned to the case allegedly became "lost" and never
arrived at the election site. As a result, the Company's
attorney and management of the Company were subject-
ed to name calling and other defamatory statements by
the Union's organizer in the presence of employees wait-
ing to vote, all of which destroyed the laboratory condi-
tions necessary for the holding of a fair election.
10. Region 10 failure to conduct the election as sched-
uled and resulting delay of a week unduly prejudiced the
Company in the election in that, among other things, eli-
gible voters were disenfranchised or otherwise unavail-
able to vote.
1507
Pertinent testimony of objectionable conduct is sum-
marized below:
George Fleet testified that on October 14 he was
present on the jobsite at the appointed polling place at
the time the election was canceled .9 Several employees
were assembled to vote and Respondent 's counsel and
Charging Party's counsel jointly informed the employees
that the Board agent had not arrived and that the elec-
tion was canceled . The employees dispersed . Thereafter
several other employees came up and were told the elec-
tion was cancelled . Whether Fleet, Company Counsel
Sands, Union Counsel Shuster, or Lambert was actually
speaking , the employees were told the same thing each
time; that the election was canceled through no fault of
the Company or the Union, At one point while several
eligible voters were standing around, Lambert, who had
remained in the area, began berating the Respondent
saying the company was cheating and lying to the
people and cursed Fleet. Fleet terminated any further
conversation by telling Lambert, "There 's no sense in
going on like this," and directed Lambert to leave the
premises because the election was canceled . Then Fleet
went to the office. Not one of the eligible voters present
when Lambert engaged in the profane outburst made
any comment about Lambert's language to Fleet.
Fleet stated that Lambert was chosen as the union ob-
server for the election both October 14 and 21. Fleet tes-
tified that Respondent 's counsel objected to Lambert
serving as the union observer because he was a paid
union agent . The only response by the Union came from
Business Agent Hall who said , "No, No. It wasn 't until
after he came to work with Malta that he was paid by
the Union."
Within 2 weeks of Self's hire date , June 20, he was ap-
proached by two men who introduced themselves as
agents of the Union. Lambert was with the men and
asked Self how he stood in the Union and asked if Self
would help them. Self replied , "I came down here to
work for Malta. I didn't come down here to promote
Malta or to promote the Union." Self said he would do
what he could and would not work against it. During
this time frame, Lambert distributed a letter to employ-
ees signed by Union Agent Tommy Archer. The letter
was referred to as a guarantee that employees could buy
union books for $25. Self explained that the letter actual-
ly said an initiation fee of $25 whereas the verbal com-
munications referred to buying a book for $25.
Lambert testified that about 2 weeks before the elec-
tion, he visited employee Jackson at home. Lambert told
Jackson that he was helping the Union to organize the
employees . Jackson said he knew an organizing effort
was going on because he was told when he was hired in.
Lambert showed Jackson the guarantee letter advertising
a "book" for $25. Lambert added that a contract would
be negotiated and Jackson affirmed that he was aware of
that having been in the union all his life. There was no
mention of whether Jackson supported the Union or not.
9 The parties stipulated that the election was aborted on October 14,
rescheduled and held on October 21
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lambert recalled a conversation with Bill Self during
the campaign which they had in Self's trailer home:
Well, Bill was telling me about organizing in the
North. He said that up there, they didn't have much
trouble organizing, that if you went to work up
there, you were usually Union and he told me, he
said, "It's going to be hard to get a contract."
And I said, "There will be a lot of strange things
going on in this place, I guarantee you, before this
campaign's over."
And Bill said, "Well, now, we don't tear up no
equipment or nothing."
And I told Bill-I said, "No, I wasn't talking
about that. I was talking about the company would
be firing people and telling a bunch-well, propa-
ganda, is what I call it." And I was giving my opin-
ion of most campaigns.
And that was about it of what was said. I just
said, "We don't do that down here." He was telling
me about up North, you know, that if you wasn't
Union, they got real mean.
Lambert also had a conversation with Fleet at the
office trailer after the first election was canceled. Fleet,
Lawyer Sands, and Lambert were the only people
present. Lawyer Shuster had gone inside to use the
phone. Fleet jokingly remarked that an election may
never be held. Lambert became angry over the remark
and cursed Fleet, whereupon Fleet said, "Well, let's
don't go into that. I don't want to argue with you. I
don't want to talk about that. Let's don't get into an ar-
gument about the issue." That ended the conversation. 110
Lambert stated he joined the Union in January 1983
and paid $150 for his "book." He had worked in the ju-
risdiction of the Union for 6-8 months before he applied
for his "book." He received his book immediately fol-
lowing his application.
Glen Jackson testified he is an operator for the Re-
spondent. About 2-3 weeks before the election, Johnny
Lambert came to his house and introduced himself as a
union representative. Lambert told him that the employ-
ees could join the Union for $25 and dues would be $13
monthly if the Union came in. Jackson stated he knew
operating engineers books cost as much as $300 in Hun-
tington, West Virginia, where he once applied.
Jackson also attended a union fish fry several weeks
before the election. Both Bill Hall and Tommy Archer
spoke to the assembled Malta employees numbering
about 15-20. Archer said that if you get laid off from a
job or finish a job you go back to the hiring hall and as a
job comes in that you are qualified to do, you go out in
the same order that you come in. It was Jackson's im-
pression that you had to be a member of the Union to
gain access to the hiring hall procedures.
10 A tape recording of a conversation between Fleet and employee
Dennard was admitted into the record as impeachment evidence of
Fleet's testimony about the "cursing" conversation with Lambert. I did
not find the recording helpful to my determination because it was ambig-
uous and, therefore, not substantive evidence probative of any fact in dis-
pute.
During the campaign, Self attended two union fish
fries held at the Union' s training center. Several of the
union representatives spoke to the assembled Malta em-
ployees. Self recalled that Representative Hall told the
employees about the Union's insurance and retirement
plans that were available to members of the Union. He
did not recall any references to the Union's hiring hall or
to acquisition of Union "books." Self did have a conver-
sation with Lambert several months prior to the election
in which Lambert stated that strange things happen
sometimes when unions fail to get contracts. Self did not
inquire of Lambert what he meant nor did Lambert ex-
plain his meaning.
Bill Self testified that the evening before Hoback was
discharged, he was visited by Hoback in his trailer home.
A discussion about the Union occurred and Hoback
stated to Self that if the Union lost the election, they
were going to nail Self to the wall. They would pull
Self's book and try to take his pension benefits away
from him. Hoback attempted to engage Self in a fight
but Self just laughed it off.
Kenneth Jenkins testified that he is an operator for Re-
spondent. Jenkins, prior to the election, attended a union
meeting held at the Union's site for Respondent's em-
ployees. There was a fish fry and then a 15-20 minute
program where William Hall and another union man
spoke to the employees. Hall told the employees what
the union could do for them if the coming election was
won by the Union. Without recalling all that was said,
Jenkins did state that the union man said if a contract
was signed between the company and the Union that em-
ployees could have health and retirement benefits. Union
books were not mentioned but the hiring hall was dis-
cussed. One of the union men said, "If you was a union
member and you was laid off, that the union would help
you get a job, but you have to sign up and wait in line if
you want a certain job through the union." Jenkins could
not recall if the union man told the assembled employees
that anyone who was laid off could sign up at the union
hall.
Willie B. Raines testified that he is an operator for Re-
spondent. Raines, prior to the election, attended a union
fish fry held at the union hall for Malta employees. Wil-
liam Hall and several other union representatives spoke
to the employees. One of the men told the employees
they would be able to get a "book" for $25. After get-
ting in the Union if employees were laid off or the job
run out, they could go to the hall and get on the bottom
of the list for other jobs. Raines had no independent
recollection of who spoke to the employees other than
the speaker was a short man who said he was a union
officer. Raines did not know the man was associated
with the Union.
C. Analysis and Conclusions
Several employees offered testimony pertaining to the
objections. As is often the case where employee wit-
nesses attempt to recall events long past, the facts lie
somewhere between the opposing evidence. It is diffi-
cult, if not impossible, to label testimony froth with un-
certainties as reliable and substantial, notwithstanding the
MALTA CONSTRUCTION CO.
witness may be credible . When statements made during
an election campaign or conversations occurring be-
tween opposing factions during an election campaign are
critical to the evaluation of an election atmosphere under
scrutiny, the burden of proof lies with the proponent of
the objections . Here, the Employer-Respondent has the
burden of proof to show that the election was invalid
and must be rerun.
1. Objections I thru IV
The Employer-Respondent alleges that a reduction in
initiation fees, a promise to provide employees with
union health and retirement benefits , a promise to sell
union "books" for $25 , and a promise to offer the
Union's hiring hall to employees were all calculated to
offset employees ' freedom of choice in the upcoming
election.
The record evidence , while showing that reduced initi-
ation fees and $25 "books" were offered as inducements
to influence employees ' votes in the upcoming election,
also clearly shows the offers were made to all unit em-
ployees contacted. The record does not contain any evi-
dence that the Union or any of its agents ever quoted a
price for "books" at times other than the instant cam-
paign or in locations other than Atlanta . The vague spec-
ulations of several employee witnesses cannot be charged
to the Union or its agents . Thus, the promised reduced
fees and books were available to all employees without
regard to their individual sentiments , before, during, or
after the election . Such promises do not constitute objec-
tionable conduct requiring that an election be set aside. t t
The evidence relating to the Union 's health and retire-
ment benefits does not show that employees can only
gain such benefits by supporting the Union in the elec-
tion . The evidence, however , does clearly show that em-
ployees were told that membership in the Union (which
could be effectuated without a union victory in the elec-
tion) automatically includes health and retirement bene-
fits commensurate with contributions by the employees
or on behalf of the employees . No evidence was present-
ed to show that employees who supported the Union in
the election would reap health or retirement benefits dif-
ferent from those accorded all members of the Union or
that any employees would be denied membership in the
Union. The Union's literature and campaigning involving
health and retirement benefits , therefore, was not objec-
tionable conduct violative of election rules.
The hiring hall objection on its face is ambiguous with
regard to an unlawful procedure for hiring halls but even
if the objection is considered to allow the Union 's hiring
hall procedures only for employees who select the Union
in the election, the objection is unsupported by the
record evidence . There is no substantial evidence to
show that employees were told that only those support-
ing the Union would be allowed use of the Union's
hiring hall if they needed future employment . Witness
Jackson's impression , absent a direct statement from a
" The discrepancy between the stated cost of a class c highway
"book" of $15 and the alleged benefit to employees of buying a book for
$25 is not explained in this record . Such discrepancy could be viewed as
no benefit at all.
1509
union agent, cannot be imputed to the Union. The objec-
tion is, therefore , unsupported and the hiring hall rheto-
ric is not objectionable conduct on the part of the Union.
2. Objection V
This objection deals with intimidation of employees by
threats of physical force, violence , or sabotage. The
record evidence consist of two conversations between
the Employer 's heavy machine mechanic , Bill Self and
employees Hoback and Lambert. Lambert's agency
status on behalf of the Union was stipulated by the par-
ties but the record is conspicuously silent with regard to
Hoback's status as an agent of the Union evidence of
only a union supporter is insubstantial and nonprobative).
Absent an initial finding that Hoback was an agent of the
Union at the critical time , there is no need , indeed, no
purpose to consider any conduct of Hoback, particularly
since Hoback's alleged conduct was isolated and not
within the realm of egregious conduct toward unit em-
ployees . Therefore , the evidence of Hoback's conversa-
tion with Self is unavailing to Employer-Respondent.
The evidence respecting Union Agent Lambert will be
considered. Lambert was shown to be an adamant sup-
porter of the Union's cause who used colorful language
and occasionally made reference to activities thought to
be unlawful but effective. Albeit, I do not condone acts
of violence or sabotage or the threats of such acts, the
evidence is not conclusive . Self clearly focused on such
acts in his own mind , but he did not specify that actual
statements came from Lambert. Even though threats
may be purposefully veiled to conceal an obvious
motive, they nonetheless can be violative . Here, howev-
er, the conversation as attested does not substantiate such
subterfuge . I conclude and find that the conversation be-
tween Self and Lambert represents nothing more than
two employees puffing among themselves to show their
respective allegiances . Therefore, the content of the con-
versation does not interfere with the employees' free
choice in the election . In reaching this conclusion, I have
not considered Charging Party's argument that Self did
not communicate the content of the conversation to
anyone, for in my view, if Lambert did make the threats
as alleged , he would have exceeded the bounds for cam-
paigning by an election party which would require the
remedy of rerunning the election . The test is not the
measured effect of the threat but rather the reasonable
tendency of the language to destroy the sterile atmos-
phere of the election.
3. Objection VI
There is no evidence of deliberate misrepresentations
of facts peculiarly within the knowledge of one party to
the election. Therefore, Objection VI is summarily over-
ruled.
4. Objection VII
This objection, to have any merit, must first be sup-
ported by a finding that Lambert, as an agent of the
Union, engaged in unlawful conduct, serious enough to
make his presence in the polling place a mere extension
of his violative action. In view of my findings above,
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is no impediment to Lambert sitting as observer for
the Union during the election absent unusual conduct on
his part during the actual polling of voters . The record
does not contain any evidence of Lambert 's conduct in
the polling place , therefore, his role as observer for the
Union is not subject to attack . Accordingly, I shall over-
rule Objection VII.
5. Objections VIII , IX, and X
Employer-Respondent in its brief only tangentially
refers to the "cursing conversation" between Fleet and
Lambert . Assuming that the conversation was offered to
support one or all of these objections and considering
only Fleet's version of the conversation , there is no con-
duct present to interfere with the employees ' free choice
or destructive of the laboratory conditions of the elec-
tion . The admitted context of the conversation was an
aborted election attempt by the Board 's Regional Office
which was rectified one week later when the election
was actually held. The cursing conversation neither per-
meated the later atmosphere nor was it referenced in any
way, by anyone . Thus, there is no evidence that the elec-
tion atmosphere was altered . Objection VIII, therefore,
must fall . Although the necessity to cancel a scheduled
election may be unsettling to the parties and voters alike,
it is not, standing alone, grounds for setting an election
aside . The Board has the distinct obligation to ensure the
sterility of an election atmosphere while the polling is in
progress and it does so by having its own agent conduct
the election . Although alleged, there is no evidence in
this record that eligible voters were disenfranchised by
the delay of one week . On the contrary , preelection pro-
cedures established that there were approximately 23 eli-
gible voters and the tally of ballots showed that 10 votes
were cast for the Union, 8 votes were cast against the
Union, and 5 votes were challenged. The tally totals 23.
I, therefore, conclude and find that objections IX and X
are not supported by the record evidence and shall over-
rule each.
Employer-Respondent having failed to support with
substantial credible evidence any of the 10 objections al-
leged, I shall overrule the objections in their entirety.
CONCLUSIONS OF LAW
1. By discharging Paul Hoback on September 19, 1983,
because he engaged in union activities , Respondent has
violated Section 8(a)(3) and (1) of the Act.
2. The General Counsel has failed to sustain all other
allegations of the two complaints.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily discharged
Paul Hoback, an employee, I find it necessary to order it
to offer him full reinstatement to his former position, or,
if that position no longer exists, to a substantially equiva-
lent position, with backpay computed on a quarterly
basis and interest thereon to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977), 12 from
September 19, 1983, the date of discharge to the date of
a proper offer of reinstatement.
[Recommended Order omitted from publication.]
12 See generally Isis Plumbing Co., 138 NLRB 716 (1962).