Meade Construction Co.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 691 (N.L.R.B. 1975)

MEADE CONSTRUCTION CO., INC.
Meade Construction Co., Inc . and Russell Hensley.
Case 9-CA-8653
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 15, 1975, Administrative Law Judge
John G. Gregg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that the evi-
dence was insufficient to sustain the allegations that
the Respondent threatened Russell Hensley with the
loss of his job because of his activities as a union
steward on behalf of the Union; or threatened Hens-
ley with discharge because of his activities in concert
with other employees to secure back wages which
Hensley believed were due to him and to other em-
ployees; or laid off Hensley for 2 days because of his
activities as union steward and his engaging in the
foregoing concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection;
or discharged Hensley because of the foregoing ac-
tivities, thereby interfering with, restraining, and
coercing employees in the exercise of their rights pro-
tected by Section 7 of the Act in violation of Section
8(a)(1) of the Act and thereby discriminating in re-
gard to the hire or tenure of employment to discour-
age membership in the Union in violation of Section
8(a)(1) and (3) of the Act. Accordingly, he recom-
mended that the complaint be dismissed in its entire-
ty. The General Counsel has filed exceptions to some
of the above findings which, for the reasons hereinaf-
ter set forth, we find meritorious.
Hensley became a steward for the Union late in
1973, and as part of his duties he checked to see that
employees were members of the Union. In March
1974, he checked the union status of employees at the
Gallipolis, Ohio, job where Meade was the general
contractor and Wells Electric was a nonunion sub-
contractor. Hensley spoke to Wells' employees and
was told that they were not union. He informed them
691
that, "In our contract any nonunion contractor that
comes with the company has to join the union after 8
days."
At or about the same time, or shortly thereafter,
that the foregoing activity occurred, Hensley was laid
off for 2 days by Hammond, general superintendent
for Meade, who gave as the reason lack of work. Two
days later, Hammond recalled Hensley stating that
"We have a job for you. Come back to work." When
Hensley reported back to work, he had a conversa-
tion with Meade who allegedly told him that "if he
did not quit meddling in the union affairs he was
going to be fired."
The facts relating to Hensley's discharge show
that, during the middle and latter part of 1973, the
Respondent performed certain renovation work on
the Boyd County (Kentucky) Court House. Hensley
worked on the courthouse job performing both la-
borer and carpenter work, but was paid only labor-
ers' wages. Laborers' wages were $4.77 an hour and
carpenters' wages were $7.19 an hour. Hensley was
told by one of the foremen that he had not been paid
the right wage and he would have some backpay
coming to him. Hensley began checking into the
matter and found that under the terms of the con-
tract Respondent entered into, to perform the Boyd
County Court House renovation work, Respondent
agreed to pay the prevailing carpenter wage rate for
carpentry work. Hensley wrote to the Kentucky De-
partment of Labor and asked it to investigate wheth-
er he and two other carpenters were due additional
pay for their work on the Boyd County job. Hensley
also attempted to examine the contract entered into
by Respondent and Boyd County. On an occasion in
March 1974, Hensley went to the courthouse to see if
he could examine the contract, but no one with au-
thority was available and he was not able to see the
contract at this time. While at the courthouse, Hens-
ley spoke with the county jailer and apparently told
the jailer that if he did not get the money he believed
due him, he was going to picket the courthouse. The
jailer reported this incident and the picket threat to
Charles Meade, Respondent's president. Hensley
was reprimanded at that time and threatened with
discharge if he did something like that again.
Hensley continued his activity going to other
sources including the County Labor Board and to
Commissioner Ross who on Friday, April 19, did
permit Hensley to inspect the contract between the
county and Meade under which Hensley had per-
formed his work.
On April 22, 1974, Hensley was discharged for
what Meade deemed insubordination. Meade testi-
fied: "He was asked not to get involved in Company
policy because the discussion is already around the
220 NLRB No. 104
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City of Catlettsburg and a few places in Ashland that
I was having some trouble with my men and couldn't
control them ." Meade stated that he had received a
phone call from Commissioner Ross before discharg-
ing Hensley , stating that Hensley called him at home
as he (Ross) was getting ready for bed and "raised
hell" about the contract . According to Meade, Ross
told him that he better get control of his people or
"they're sure going to hurt your business."
Subsequent to Hensley 's discharge , the Kentucky
Department of Labor scheduled a hearing to de-
termine if the Respondent was liable for additional
pay to certain of its employees for the work they
performed on the Boyd County job. The matter was
apparently settled without a hearing and Hensley
and at least one other employee of the Respondent
received additional pay.
On the above facts, the Administrative Law Judge
found that Meade did not threaten Hensley with loss
of employment and discharge , but that the Respon-
dent warned Hensley that he would be discharged if
he continued his activity of threatening and harass-
ing county officials in what appeared to Meade to be
a derogation of his relationship with these contract-
ing authorities and obviously of potentially critical
harm to his business . With respect to the temporary
layoff of Hensley by Respondent, the Administrative
Law Judge found that layoffs were a normal pattern
in the Respondent's operations . Also, he found that
the Respondent laid off Hensley on or about March
11, 1974, because of lack of work and not because of
Hensley's activity as union steward, and that the dis-
charge of Hensley was occasioned by the
Respondent 's reasonable reaction to a potential
threat to its business arising from the behavior of
Hensley pertaining to county officials . As the Gener-
al Counsel did not except to the finding that Hensley
was laid off on or about March 11, 1974, because of
lack of work and not because of Hensley's activity as
union steward , we shall adopt this finding pro forma.
However , we do not agree with the finding of the
Administrative Law Judge that Hensley's discharge
was not a violation of the Act . The pertinent facts
show that the Employer entered into a contract with
a state governmental body which required that the
Employer's employees performing work under that
contract be paid a certain wage . The Employer paid
certain employees performing the work something
less than the wage required by the contract. Hensley
discovered that he was not being paid the contract
wage , and on behalf of himself and other employees
requested the State to investigate the matter and also
attempted to investigate the matter on his own. As a
result of Hensley 's activity, the State conducted an
investigation which resulted in several employees, in-
cluding Hensley , receiving additional wages for the
work they performed under the contract. As a result
of Hensley 's investigation in attempting to ascertain
the pay scale set forth in a contract for a job classifi-
cation in which he worked in performing work under
that contract, he was discharged. We find that
Hensley's activity was clearly protected, concerted
activity, as he was not acting alone but in concert
with and on behalf of other employees. By threaten-
ing Hensley with discharge and then discharging him
because he was engaging in such activity Respondent
violated Section 8(a)(1) of the Act.' Accordingly, we
shall order that Respondent cease and desist there-
from and offer Hensley full reinstatement with back-
pay.
CONCLUSIONS OF LAW
1. Meade Construction Co., Inc., a corporation at
Catlettsburg , Kentucky, is a general contractor in the
building and construction industry and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By discharging Russell Hensley on April 22,
1974, Respondent has interfered with, restrained,
and coerced employees in the exercise of rights guar-
anteed in Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By the foregoing, and by other specific acts and
conduct interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor R6-
lations Board hereby orders that the Respondent,
Meade Construction Co., Inc., Catlettsburg, Ken-
tucky, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge, or
other reprisals , for engaging in union or concerted
activities.
(b) Discharging employees because they engage in
'G V R, Inc ., 201 NLRB 147 (1973).
MEADE CONSTRUCTION CO., INC. 693
concerted activities for their mutual aid and protec-
tion.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act to engage in
concerted activities for their mutual aid and protec-
tion or to refrain from such activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Russell Hensley immediate and full
reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges.
(b) Make Russell Hensley whole for any loss of
pay he may have suffered by reason of the
Respondent's discrimination against him by payment
to him of a sum of money equal to that which he
normally would have earned as wages from the date
of the discrimination to the date of Respondent's of-
fer of reinstatment, less his net earnings during such
period, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon at the rate of 6 percent per an-
num, as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(d) Post at its establishment in Catlettsburg, Ken-
tucky, copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MURPHY, concurring:
Like my colleagues I find merit in General
Counsel's exceptions to the Administrative Law
Judge's failure to find that the Respondent unlawful-
ly discharged Russell Hensley because of his activi-
ties in concert with other employees to secure back
wages which Hensley believed were due him and
other employees. Like them, I find Hensley's activi-
ties in investigating the contract which Respondent
had with the county were clearly in concert with and
on behalf of himself and other employees, were relat-
ed to terms and conditions of employment, and were
therefore protected. I also agree that it was because
of these activities that he was discharged.
My colleagues, however, appear to dismiss, with-
out comment, the Respondent's argument, accepted
by the Administrative Law Judge, that Hensley was
discharged because in pursuing his investigation he
engaged in personal misconduct of such a nature as
to put his otherwise protected activities outside the
Act's protection. In my view, Respondent failed to
satisfy its burden of showing that Hensley was dis-
charged for the manner in which he spoke to county
officials rather than, as Meade's own testimony es-
tablishes, for getting "involved in Company policy
because the discussion is already around the City of
Catlettsburg and a few places in Ashland that I was
having some trouble with my men and couldn't con-
trol them." In other words, Hensley was discharged
for meddling in matters concerning wages and terms
and conditions of employment.
Thus, although Respondent may have been appre-
hensive that Hensley's approaching county officials
might have some future detrimental effects on its
business, that is not reason enough to remove
Hensley's conduct from the protection of the Act.3
As Judge Learned Hand aptly observed "such activi-
ties may be highly prejudicial to [the] employer; his
customers may refuse to deal with him; he may incur
the enmity of many in the community whose disfavor
will bear hard upon him; but the statute forbids him
by a discharge to rid himself of those who lay such
burdens upon him." 4
Accordingly, I concur in the finding that Hensley
was discharged in violation of Section 8(a)(1) of the
Act.'
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
7 Pioneer Natural Gas Company, 158 NLRB 1067 (1966)
4 N L R B v Peter Cailler Kohler Swiss Chocolate Company, Inc, 130 F 2d
503, 506 (C A 2, 1942)
5 I do not reach the issue whether Respondent also threatened Hensley
with discharge for engaging in such conduct since , in the absence of excep-
tions thereto, I do not find it before us
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge, or other reprisals, for engaging in union
or concerted activities.
WE WILL NOT discharge employees for engag-
ing in concerted activities for their mutual aid or
protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in the Na-
tional Labor Relations Act.
WE WILL offer Russell Hensley immediate
and full reinstatement to his former position or,
if such position no longer exists , to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights or privileges.
WE WILL make Russell Hensley whole for any
loss of earnings because of the discrimination
againt him, plus 6-percent interest.
MEADE CONSTRUCTION CO., INC.
DECISION
JOHN G. GREGG, Administrative Law Judge: This trial
was held before me at Catlettsburg, Kentucky, on October
29, 1974, pursuant to complaint and notice of hearing
dated September 23, 1974, issued by the Regional Director
for Region 9 of the National Labor Relations Board, based
on a charge duly filed July 16, 1974.
The complaint alleges essentially that the Respondent,
Meade Construction Co., Inc., committed unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
by various acts hereinafter specified . At the trial all parties
were given full opportunity to participate and subsequently
to file briefs.
Upon the entire record in this case, from my observation
of the witnesses and their demeanor while testifying under
oath , and careful consideration of the briefs submitted by
the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent, Meade Construction Co., Inc., is and
has been at all times material herein , a corporation contin-
uously engaged at Catlettsburg, Kentucky , as a general
contractor in the building and construction industry.
During the past 12 months , which period is representa-
tive , at all times material herein, the Respondent sold
goods and services valued in excess of $50,000 directly to
customers outside the State of Kentucky.
The Respondent is, and has been at all times material
herein, an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 14851, United Steelworkers of Ameri-
ca, AFL-CIO, is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent through its
president, Charles Meade, on or about March 13, 1974, at
the Respondent's offices in Catlettsburg, Kentucky, threat-
ened Russell Hensley with the loss of his job because of his
activities as a union steward on behalf of the Union; on or
about April 22, 1974, at Respondent's construction project
in Gallipolis, Ohio, threatened Hensley with discharge be-
cause of his activities in concert with other employees to
secure back wages which Hensley believed were due to him
and to other employees; on or about March 11, 1974, in
Boyd County, Kentucky, laid off Hensley for 2 days be-
cause of his activities as union steward and his engaging in
the foregoing concerted activity for the purpose of collec-
tive bargaining or other mutual aid or protection; and on
or about April 22, 1974, discharged Hensley because of the
foregoing activities , thereby interfering with , restraining,
and coercing employees in the exercise of their rights pro-
tected by Section 7 of the Act in violation of Section
8(a)(1) of the Act and thereby discriminating in regard to
the hire or tenure of employment to discourage member-
ship in the Union in violation of Section 8(a)(1) and (3) of
the Act.
A. Preliminary Consideration; Deferral to Arbitration
The record herein establishes that Hensley was dis-
charged on April 22, 1974, that subsequently on April 29,
1974, the Respondent and the Union herein agreed to settle
the grievance by reinstating Hensley and paying him 2
days backpay. The Respondent and Hensley differed in
their respective interpretations of the settlement agreement.
The settlement was not acceptable to Hensley who viewed
the settlement agreement as reimbursing him for only part
of his loss of work and improperly permitting the Respon-
dent to reinstate him at such time as work was available
rather than immediately. The Union believing the settle-
ment to be fair then dropped the matter and would not
proceed to arbitration. The Respondent, since Hensley's
rejection of the grievance settlement, is unwilling to rein-
state him unless ordered to do so by the Board or an arbi-
trator . Hensley filed the charges herein.
A threshhold question herein is whether or not this case
is ripe for application of the Board's deferral policy as es-
tablished in Collyer Insulated Wire, 192 NLRB 837 (1971).
In my view it is not. Counsel for the General Counsel in
his brief urges that the matter of Hensley's discharge
MEADE CONSTRUCTION CO., INC. 695
should not be deferred as there is no grievance pending nor
arbitration contemplated. The record establishes that the
Union settled the grievance prior to the arbitration step
and is not willing now to go to arbitration. Additionally,
the Respondent is now unwilling to effectuate the settle-
ment which Hensley has rejected.
The Collyer rule of deferral to grievance and arbitration
procedures encourages the Board to decline jurisdiction of
a complaint if in the Board's judgment labor policy is best
served by leaving the parties to voluntary settlements.
N.L.R.B. v. Plasterers Union, 404 U.S. 116, 136-137 (1971).
Final adjustment by a method agreed upon by the parties
is declared to be the desirable method for settlement of
grievance disputes arising over the application or interpre-
tation of an existing collective-bargaining agreement,
whether it be pre-arbitral or postaward. As the Board stat-
ed in Collyer, "Thus this case like each such case compels
an accommodation between, on the one hand, the statuto-
ry policy favoring the fullest use of collective bargaining
and the arbitral process and, on the other, the statutory
policy reflected by Congress' grant to the Board of exclu-
sive jurisdiction to prevent unfair labor practices."
In my view, in the circumstances and the posture of the
case at hand, that accommodation would best be served by
the retention of jurisdiction by the Board and decision on
the merits herein.
The record herein establishes as urged by the General
Counsel that there is no arbitration award involved nor is
there any arbitration contemplated by the parties. On the
contrary there is a grievance settlement unsatisfactory to
the aggrieved employee and apparently rendered without
the minimum safeguard which a full and fair arbitration
would insure. There is no assurance herein that the matter
could or would ever go to arbitration. Additionally, the
record herein does not establish whether or not in reaching
the grievance settlement agreement the Respondent and
the Union gave any consideration to the union steward and
concerted activities question raised in the complaint here-
in. Spielberg Manufacturing Company, 112 NLRB 1080
(1955). Accordingly, I am convinced that the substantive
and statutory issues raised by the complaint fall within the
special competence of the Board under the provisions of
the Act which the Board has been mandated by Congress
to enforce, International Great Lakes Shipping Company,
215 NLRB No. 121 (1974), and shall therefor proceed to
consider the merits of the complaint herein.
B. The Alleged Unfair Labor Practices
There was testimony of record by Hensley who stated
that he became a steward for the Union late in 1973, that
as part of his duties he checked to see that employees were
members of the Union ; in this regard in March 1974, he
checked the union status of employees at the Gallipolis,
Ohio, job where Meade was the general contractor and
Wells Electric a nonunion subcontractor.
According to Hensley he spoke to the Wells employees,
was informed they were not Union, and he then informed
them that "In our contract any non-Union contractor that
comes with the company has to join the Union after 8
days."
According to Hensley as a result of the foregoing, about
2 days later he was laid off for 2 days by Mr. Hammond,
general superintendent for Meade, who gave as the reason
lack of work. Two days later, Hammond recalled Hensley
stating that "We have a job for you. Come back to work."
According to Hensley when he reported back to work he
had a conversation with Meade who told him that if he did
not quit meddling in the union affairs he was going to be
fired.
Hensley recounted another incident in early March of
1973, when he worked on the Boyd County Courthouse as
a carpenter and was paid $4.77 an hour, and was told by
one of the foremen that he had not been paid the right
wage and would have some backpay coming . According to
Hensley, around November 1973, he queried Hammond as
to the backpay and Hammond told him that Meade had
designated one carpenter to get the backpay. Hensley testi-
fied that he then went to the Union, went to the courthouse
to check on the Meade contract under which he had per-
formed his work; that an account of his activities were
relayed to Meade. The following morning, according to
Hensley, Meade told him about this and told him that if he
did not stay out and quit meddling in affairs that did not
concern him, Meade was going to find some way to get rid
of him.
Subsequently, according to Hensley he continued his ac-
tivity going to other sources including the County Labor
Board and to Commissioner Ross who on Friday, April 19,
did permit him to inspect the contract between the county
and Meade under which Hensley had performed his work.
On Sunday, April 21, Hensley was called to go back
to work where Adkins, a foreman for Meade, told
Hensley that he was fired for insubordination, "meddling
in the affairs that didn't concern me and the Union."
Hensley stated that Adkins told him that Ross had called
Adkins and told him that Hensley had "cussed him and
said words to him," that "Ross didn't like getting calls like
that."
On cross-examination, Hensley stated that there was a
dispute as to the type of work or the nature of the services
he was performing on the job and that this was a factor in
the questioning of the appropriate wage rate paid to him.
According to Hensley, he and several other carpenters
were involved in this dispute and Hensley' s matter was set-
tled. Hensley stated that he had discussed the disputed
wage matter or backpay with other carpenters.
On cross-examination, Hensley testified that when he
was laid off by Hammond for 2 days from the Gallipolis
job, during the 2 days of his layoff no carpenter worked on
that job. Hensley testified that when he was subsequently
off 3 days he was advised that work was not available but
he believed there was work to be done, sheetrock to be
hung. This testimony contradicted his earlier sworn state-
ment to the Board that there was genuine lack of work at
the time of the 3-day layoff.
Hensley testified further that on the morning Meade dis-
charged him, Meade told him that Ross had called Meade
and told Meade that Hensley had called Ross and cussed
him, that Ross told Meade he was going to have to do
something with his employees, and that was the reason why
Meade discharged Hensley.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that Hensley was discharged
on April 22 for insubordination arising from Hensley's
threatening the Boyd County jailer with placing a picket on
the Boyd County Courthouse jobsite after the job had been
completed , and with calling Boyd County Commissioner
Ross at midnight and cursing him, causing both those indi-
viduals to call the Respondent Company and complain.
There was testimony of record by C.C. Meade, president
of the Respondent Company, who stated that the company
has had a Union for 7 years , recently signed a new agree-
ment which requires that after 8 days all employees must
become members of the Union.
Meade testified that Hensley was laid off for 2 days on
or about March 11, 1974, by Hammond, because work was
not available . Meade stated that the Company had difficul-
ty procuring materials, the job was shut down for 5 weeks
by the owner, Ohio Bell, because they failed to get a state
building permit.
Meade described the company practice on layoffs by
stating that the Company normally has various jobs going
concurrently , and if a manpower shortage develops on one
job, men are sent from another , if a material shortage or
scarcity develops on any job, men with no material to work
on are sent home and that sometimes when short layoffs
are involved, seniority is ignored when a strict application
would result in disrupting the flow of work.
Meade denied threatening Hensley with discharge be-
cause of his union or concerted activities but stated that
after receiving a complaint about Hensley from the county
jailer, he warned Hensley that he had to be warned before
being terminated and that if Hensley did something "like
that" again he would be fired. According to Meade the
jailer told him that Hensley had queried him about the
Meade contract with the county, normally a nonunion con-
tract, that Hensley said that he was going to find out what
was going on, and if he did not he was going to put a picket
sign up.
Meade stated that Hensley was discharged on April 22,
1974, for what Meade deemed insubordination . "He was
asked to not get involved in company policy because the
discussion is already around the city of Catlettsburg and a
few places in Ashland that I was having some trouble with
my men and couldn 't control them."
Meade stated that he had received a phone call from
Commissioner Ross before discharging Hensley stating
that Hensley called him at home as he (Ross) was getting
ready for bed and "raised hell" about the contract. Ac-
cording to Meade , Ross told him that he better get control
of his people or "they're sure going to hurt your business."
ANALYSIS, FINDINGS, AND CONCLUSIONS
Based on the record as a whole and my findings and
credibility resolutions as explicated hereinafter, I am con-
vinced and I conclude that the Respondent did not violate
the Act as alleged in the complaint.
It is of course well settled that an employer may dis-
charge employees without violating the Act so long as its
action was not based on the union or concerted activities
of such employees.
It is the Respondent's contention that Hensley was laid
off because of lack of work and discharged because of his
"troublemaking" activities which included a complaint
from Commissioner Ross that in the course of Hensley's
attempts to inspect a contract between the County and the
Respondent , Hensley had called Ross when Ross was get-
ting ready for bed and after Hensley had had several
drinks, and Hensley had "raised hell" about the contract.
According to Meade, the action of discharge was a follow-
up to the warning given Hensley after Meade had been
advised by the county jailer that Hensley had threatened to
throw a picket line around the courthouse even though the
Respondent's construction had already been completed.
Based on my observation of the demeanor of Meade as
he testified , I credit his version of the critical discussions
with Hensley. I was most impressed by the straightforward
and sincere demeanor of Meade as he testified. On the
other hand, I found the demeanor of Hensley, as he testi-
fied, unconvincing. His testimony at times appeared con-
trived while additionally, his testimony at one point, while
given with apparent assurance, clearly contradicted an ear-
lier sworn statement provided to the Board. No satisfacto-
ry accommodation was provided. I do not credit Hensley's
versions of the alleged threats nor his versions of the inci-
dents alleged in the complaint.
Accordingly, I find that Meade did not threaten Hensley
with loss of employment and discharge as alleged in the
complaint, but that in fact the Respondent warned Hensley
that he would be discharged if he continued his activity of
threatening and harassing county officials in what ap-
peared to Meade to be a derogation of his relationship with
these contracting authorities and obviously of potentially
critical harm, to his business.
Additionally, I have taken into account that this record
does not support a finding of union animus. With respect
to the temporary layoffs of Hensley by the Respondent, it
is clear on this record that the Respondent's policy antici-
pated such layoffs, that the policy had been established
and in effect for sometime , and that such layoffs were a
normal pattern in the Respondent's operations . It is also
clear from the record that Hensley had been laid off by the
Respondent on prior occasions because of lack of work.
Finally, I am convinced and I find on this record that
the Respondent laid off Hensley on or about March 11,
1974, because of lack of work and not because of Hensley's
activity as union steward and that the discharge of Hensley
was occasioned by the Respondent's reasonable reaction to
a potential threat to its business arising from the behavior
of Hensley vis-a-vis county officials and not as alleged in
the complaint because of Hensley's union steward and
concerted activity. Accordingly, I shall recommend dis-
missal of the complaint herein.
MEADE CONSTRUCTION CO., INC. 697
CONCLUSIONS OF LAW
1. The Respondent , Meade Construction Co., Inc., did
not interfere with , restrain , or coerce its employees in their
exercise of rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) of the Act by threatening Rus-
sell Hensley , the Charging Party herein , with loss of his job
and discharge , as alleged in the complaint.
2. The Respondent, Meade Construction Co., Inc.; did
not violate Section 8(a)(3) and (1) of the Act and did,, not
discriiinate against employees in laying off and discharg-
ing Russell Hensley as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]