Napoleon Steel Contractors, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 783 (N.L.R.B. 1971)

NAPOLEON STEEL CONTRACTORS, INC. 783
Napoleon Steel Contractors, Inc. and Nathan J.
Kaufman . Case 18-CA-3128
December 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 25, 1971, Trial Examiner Eugene F. Frey
issued the attached Decision in this proceeding.
Thereafter, the Charging Party filed exceptions. The
General Counsel did not file exceptions or a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and has
decided to of firm the Trial Examiner 's rulings,
findings , and conclusions and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
gave them an opportunity to file written briefs with me on
or before July 12, 1971. I received briefs on that date from
General Counsel and Respondent and an informal letter
memorandum from Kaufman on June 17, 1971, all of
which have been carefully considered in the preparation of
this Decision, which I have signed and released on August
19, 1971, for distribution to the parties in the usual course.2
Upon the entire record in the case , including my
observation of the witnesses and their demeanor on the
stand, and due consideration of the written briefs, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, an Ohio corporation with offices in
Cincinnati, Ohio, and North Miami Beach, Florida, is
engaged in the business of installing reinforcing steel in
buildings and other structures under construction. During
1970 it placed reinforcing steel rods, as subcontractor` for
M. K. Associates, Inc.,3 in structural -portions of the
Safeguard AntiBallistics Missile (herein called ABM)
project, more particularly the PAR site at Mountain, North
Dakota, and the MSR site at Nekoma, North Dakota,
which project and sites are part of the National Defense
system of the United States. During the calendar year 1970
Respondent furnished services at said,project and sites
valued in excess of $50,000 which had a substantial impact
on the National Defense. By virtue of these operations
Respondent is, and at all material times mentioned herein
has been, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case was tried
before me on June 3, 1971, at Grand Forks, North Dakota,
with General Counsel of the Board and Respondent,
Napoleon Steel Contractors, appearing through counsel,
and Nathan J. Kaufman, the charging party, appearing in
person, following pretrial procedures in compliance with
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq. (herein called the Act). The issue involved is
whether or not Respondent discharged Kaufman because
he engaged in concerted activities with his fellow employees
which are protected by Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.' At close of the testimony I
reserved decision on Respondent's motion to dismiss the
complaint on the merits; that motion is decided by the
findings of fact and conclusions of law in this Decision. At
close of the hearing all parties waived oral argument and I
1 The issues arse on a complaint issued January 28, 1971, by the
Board's Regional Director for Region 18, after Board investigation of a
charge filed by Kaufman on December 11, 1970, to which complaint, as
amended at the hearing, Respondent duly filed answer admitting
jurisdiction and the discharge of Kaufman but denying the commission of
any unfair labor practices.
2 On August 10, 1971, I received another hand-punted letter from
Kaufman which purports to "clarify" the brief of General Counsel in
Nathan J. Kaufman, a man 50 years of age, has worked
as an ironworker, mainly as a welder, and has been
continuously a member of various locals of International
Association of Bridge, Structural and Ornamental Iron-
workers of America (herein called the Ironworkers Union)
since 1946. During 1970 he was a member of Local 46 of
that Union, located in Springfield, Illinois. Since 1946
Kaufman has worked at this trade in at least 27 States.
Since it began work on the two ABM sites in May 1970,
Respondent has employed members of several unionized
crafts on each under the terms of a joint Project
Stabilization Agreement executed by the general contractor
with Local 793 of the Union as of April 1, 1970, and a
supplemental agreement made in March 1970, by the
general contractor and two associates with the same local.
Prior to'October 1970, Respondent had been operating at
both sites with about 120 ironworkers, but about October
16, on orders of the general contractor, it acted to
accelerate the ironwork so as to complete its work in vital
certain respects, and to add certain statements about the issues "as if under
oath." I have mailed copies of the letter to counsel for General Counsel
and Respondent for their information, but have not reviewed or considered
the letter in preparing this Decision, since the letter was submitted long
after the time for briefs had expired.
3 A joint venture of Moms-Knudsen Corporation and two other general
contractors.
194 NLRB No. 134
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
areas by November 15, before the onset of winter, by hiring
over 100 more ironworkers and operating engineers.
Sometime prior to October 31, 1970, Kaufman had been
sent by Local 793 to work at the PAR site as a welder for
another subcontractor. Following layoff after about 2
weeks of work, he worked one day for the general
contractor, but was not kept at work after taking a welding
test. On October 30, the Union sent him out as a "special
permit" man to work at the Nekoma site for Respondent.
He was assigned as a "reinforce rod worker" with the duty
of measuring and marking steel reinforcing rods so they
could be cut to proper lengths by another worker, known as
a "burner," with an acetylene torch. He was given a special
reel and belt for this work, but apparently had difficulty in
using it , so Respondent transferred him to the PAR site on
Saturday, October 31, where he was assigned to "burn" or
cut rods in the material yard by General Foreman William
Reites. He started work about 7 a.m. with another worker,
Eino Hakala. When they started work the weather was
humid and misty with an intermittent drizzle of rain. For
the first half hour or so, the two men sorted out bundles of
rods and placed them in position for marking and
"burning," and then Hakala measured and marked them
while Kaufman, after some difficulty which required help
from Reites and other workers, managed to prepare his
torch and tanks for burning , and then spent about 20
minutes cutting rods. This work occupied them until about
9 a.m. when rain began to fall, so they both stopped work
and went for coffee to the "warming shack" where
employees usually took their coffee breaks and sought
shelter in case of bad weather. About the same time other
yardmen and workers nearby began to congregate in the
shack; some of them went to the shack before Kaufman
and Hakala, but others went in after; as Kaufman was
heading for the shack, at one point he turned and gave arm
signals to workers behind him, waving them toward the
shack . The 20 or so men in the shack were strangers to
Kaufman, most of them being younger men who had been
brought to the job from Florida and other States. The group
talked mainly about the weather and were undecided on
whether they should continue work: some said they did not
want to work in the rain, others said they would. During the
discussion, several men left the shack to pick up equipment
and shut off machines, and then came back in. Shortly after
the group congregated, the ram slackened, and Reites came
in, told the group the rain had "let up, we can go back to
work." At least six of them went back to work, but
Kaufman and others stayed in the shack, Kaufman
announcing that he had not worked in rain before and did
not want to do so, but he would go back to work if the
others decided to do so.
When the rain became heavier, those who had gone back
to the yard again stopped work and returned to the shack at
about 9:15 a.m. Reites came in at that time with an armful
of rainsuits, which he piled on a table, and told the group
that this was a "double-time" day (it being Saturday), his
superiors had given him the ramsuits to pass out, and the
men should decide promptly whether they wanted to wear
them and go back to work and if they did not, they should
clock out and go home. He then left the shack. Some of the
same men who had gone back to work before put on
rainsuits and went back to work again.
The rest of the group , including Kaufman , then began to
argue about going back to work , with some opting for going
home, saying their trade did not require them to work in the
rain . Kaufman argued that ironworkers on the West Coast
worked in the rain , but others answered this was not the
West Coast . Some , including Kaufman , argued that they
should try to work until noon ; Kaufman repeatedly told all
that he was "broke" and needed the money. Someone
suggested they find out if ironworkers were still working
"on the wall" (a radar building of several levels two city
blocks distant from the yard shack), and they agreed to
return to work if the men on the wall were still working.
Carl Mattson, union shop steward for Respondent's
ironworkers on the job , was working with other ironworkers
on the radar building. About 9 a.m., he learned that the
yardmen were quitting for the day because of bad weather,
so he went down to the yard shack to "check it out." The
others at the radar building kept on working . When he
arrived at the shack, about 15 minutes before the usual time
for coffee break , he found the group in disagreement about
whether to return to work . While he was there, Reites made
his second trip to the shack and told the men to return to
work in rainsuits or clock out and go home . When Reites
left, the men asked Mattson if Respondent could make
them work in the rain with rainsuits , by giving them the
choice of doing that or going home . He replied Respondent
could do that and that they must decide what they wanted
to do. The yard loading foreman, Bert Hanson, and yard
welding foreman , John Weisgran, were also in the shack,
and Hanson asked Mattson to go out and see if the men on
the radar building were still working. He went over there,
and found that group of about 40 men having coffee in
their own warming shack , during their usual 9:30 a.m.
break . He returned to the yard shack and reported to the
yardmen that the radar group were debating whether or not
to continue work in the rain.
While Mattson ,was gone, the yard group continued to
debate whether to return or not, but could not decide what
to do, except to wait for word on the action of the radar
men. Kaufman continued to argue he wanted to go back, as
he needed the money , but would do as the others decided.
He suggested they wait until the steward came back.
During this discussion , Foreman Reites came for the third
time and gave the group the same choice of going back to
work or clocking out and going home . Kaufman asked if
the men would be discharged if they did not return to work.
Reites replied, no, they would come to work Monday as
usual . Most of the group indicated they wanted to go home.
Kaufman then announced that they would not leave until
they had seen the steward. Reites argued that if the men did
not go back to work then, they would not get any work
done that winter, because from then on the weather would
be like it was that day. Kaufman disagreed, asking Reites if
he had just come up from Florida, intimating he did not
know North Dakota, weather, and said that in the fall in
North Dakota a rainy day was very unusual, the weather
was usually dry and cold. The yardmen were still
undecided . Kaufman spoke up and said he would not go
back to work until he saw the steward. Reites replied there
NAPOLEON STEEL CONTRACTORS, INC. 785
was no reason to see the steward as there was no dispute to
settle. Kaufman again asked if they would be discharged if
they stopped work and Reites repeated they would not, but
would return to work Monday as scheduled. Kaufman
repeated loudly that he wanted to see the steward, and that
"we will not go back to work until we see the steward." The
group was still undecided after Reites repeated they should
make up their minds to work or go home. Reites walked out
and went to the superintendent's office which was in a
trailer next to the warming shack. While he was out, the
group decided to go home, but also, at Kaufman's urging,
not to leave the shack until they saw the steward.
When Reites first saw the yardmen going toward the
shack before the coffeebreak time, he went to the
superintendent's shack and jokingly asked Hightower
where he was getting his help. Hightower asked what he
meant and Reites related that Kaufman had a shabby
appearance, unlike the other workers, and appeared to be
unable to hook up a torch and to put wire on his reel.
Hightower replied that if the man was not going to do the
work assigned, Reites should discharge him and send him
to the office so Hightower could pay him off. After his last
visit to the shack and argument with Kaufman about the
local weather, Reites went into the superintendent's office
and recommended to Hightower that Kaufman be
discharged. Hightower agreed, telling Reites to bring
Kaufman to the office for his final paycheck.
Reites came into the warming shack the last time, about
9:45 a.m., to find out what the men were going to do, and at
that time told Kaufman to gather up his personal
belongings and come to the office with him. On the way
over, Kaufman asked if he was being fired. Reites said, yes.
Kaufman asked, why, and Reites replied "because you are
an agitator."
In the office, Kaufman asked Hightower and Curly
Westphan, superintendent of both sites, if he was
discharged for being an agitator. Hightower said, yes.
Kaufman denied he was "agitating," arguing he was willing
to work in the rain as he needed the money. Reites
commented that Kaufman was trying to "holdup the job."
Kaufman denied it, saying he had tried to get the yardmen
to work, as he needed the money, that he was "trying to
expedite the job." Westphan replied that he had no right to
do this, as that was management's job. Kaufman continued
to argue that he had tried to "help the job along" by
continuing to work and persuading others to do so. The
superintendents replied they did not believe him. Hightow-
er tendered Kaufman his final check, but he refused it.
Kaufman then asked them to wait for the shop steward.
Kaufman went back to the warming shack with Reites,
and told the group of workers he had been fired for being
an "agitator." On their inquiry, Reites confirmed this. The
men became upset, indicating they would like to stage a
4 The above facts are found from a composite of mutually corroborative
and credible testimony of witnesses of both sides. Testimony of any of the
witnesses in conflict therewith is not credited. In particular, I have credited
testimony of Kaufman, where uncontradicted, only to the extent that it
appears credible in light of the total sequence of events of October 31, and
where it corroborates or is otherwise consistent with testimony of witnesses
of either side which relates in direct and credible manner portions of the
events of that day which they observed or took part in. Kaufman's
testimony in general lacks credibility because throughout his testimony he
had great difficulty in answering simple questions directly with facts, but
"walkout," but indicating they were forbidden to do it by
the collective-bargaining contract governing work on a
Federal project. They sent for the shop steward.
When Steward Mattson came in, Kaufman and Reites
told him the reason for the discharge, and he went back to
the office with Kaufman. Mattson asked what the trouble
was, Kaufman said he was discharged as an "agitator," and
the two superintendents explained that he was "trying to
hold back the work" and to get the men to go home instead
of work. Kaufman said that he had only come there to
work, not agitate, as he needed the money, that he was not
trying to keep the men from working, and that Reites must
have misunderstood him. He apologized to the officials,
saying he was sorry for his conduct, explaining that he had
been "under a lot of pressure" in having to take care of
affairs of his "business partner" while he was in the
hospital, and asked if he could have a second chance and
stay on the job. Reites said he would not rehire him after
having fired him. Mattson commented a misunderstanding
might be possible, and that Kaufman was not trying to hold
up the job. Kaufman added that he was "trying to expedite
the job," and the officials said he had no right to do that.
Mattson then said there seemed to be some confusion, and
asked if the superintendents could send Kaufman to work
at the MSR site at Nekoma, but Westphan refused, saying
that if he was not satisfactory to the foreman here, he could
not be satisfactory at Nekoma. Both officials said they felt
he was an agitator, and they "had enough trouble with the
men without having an agitator."
Kaufman and Mattson then left the office, Mattson going
back to work at the radar building, and Kaufman to the
warming shack, where the other yardmen were still sitting
around. Reites came in shortly and said Hightower wanted
to see Kaufman, as he wanted to send him to the Nekoma
site. When Kaufman went to the office, only Westphan was
there, and when Kaufman told him Hightower wanted to
transfer him to Nekoma, Westphan said he was the
superintendent there and did not have any open jobs at that
site. Kaufman then left the premises.
On the third visit by Reites to the warming shack just
before 10 a.m., the rain had become heavier and steady, so
when Reites went into the shack, he told the men to "hang
tight for a while, it looks like we will be going home." At
about 10 a.m., when Kaufman was leaving the project site,
Respondent shut down the whole job for bad weather and
most of the work force went home.4
III. CONTENTIONS OF THE PARTIES AND CONCLUSIONS
THEREON
The General Counsel contends that (1) Kaufman
engaged in concerted protected activity when he talked
with other yardmen in a group about whether they should
padded many of his answers with opinion , guesswork, speculation, and
argument . In the course of his rambling answers he often contradicted
himself . In addition, he had a habit of constant mumbling during many
answers which made it hard and at times almost impossible for the court
reporter to transcribe his answers accurately and fully and'required the
Trial Examiner to admonish him repeatedly to speak up clearly. His
general attitude of vagueness and hesitancy , as well as the continual lapses
into mumbling , also support the credibility of the observations of his work
by Reites, as noted below, and the conclusions Restes reached about his
work and other conduct before discharging him.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to work in the rain, when they decided not to work
but to wait around until they saw the steward, and when
Kaufman told Foreman Reites of the decision of the group,
and (2) Reites discharged Kaufman as an "agitator" in the
belief that he was encouraging the group not to go back to
work until they talked to their steward. Reites' admission
that he believed the men refused to go back to work
because of Kaufman's encouragement supports these
arguments and the conclusion that the discharge violated
Section 8(a)(1) of the Act, for it has been held that the
action of an employee in trying during working hours to
reach his union steward in order to apprise him of a
possible detriment to employees' working conditions is
protected concerted activity and a discharge for that
conduct violates Section 8(a)(3) and (1) of the Act. Amco
Electric, 152 NLRB 781, 785.
Respondent's defense is that it discharged Kaufman
because, he failed to do work assigned to him, failed to
return to work after being ordered to do so or go home, and
caused other workers to do the same. At the outset, I note a
lack of proof of antiunion attitude or animus toward
protected activity on the part of Respondent. Instead, the
record indicates that it was apparently operating amicably
at the ABM sites under collective-bargaining agreements
which covered all union crafts working there, including the
Ironworkers. Secondly, it is clear that, as Respondent
argues, Mattson told the yardmen, and General Counsel
does not deny, that Respondent had the clear right to tell
those employees to make up their minds whether to return
to work in rainsuits provided for them or check out and go
home. It is patent that Respondent had the right to require
a prompt decision by the yardmen because they were being
paid double time while they sat undecided in the shack,
doing no work. Respondent argues that when Kaufman
himself, by his remarks to the yardmen and arguments with
Reites about working in rainy weather, refused to work in
the rain and then tried to persuade the other men to do
likewise, even after his union steward had assured the group
that Respondent could order them to continue work or go
home, and that they must decide what to do, this was
insubordination which clearly warranted his discharge. It is
well settled that an employer can discharge an employee for
good reason, bad reason, or none at all, provided a motive
is not his union or concerted activity .5 As one application
of this principle, it is also settled that an employee may be
discharged for disobedience or any conduct which disrupts
the employer's operations or its harmonious relations with
other employees.6
While it is clear that Kaufman was engaging in concerted
activity in continued discussion with fellow employees
about whether to work in the rainy weather or go home,
and also in his outspoken suggestions about getting advice
from the shop steward after Reites' first order to go back to
work or go home, and his assumption of the role of
spokesman for the group in telling Reites on his later visits
that the men would not leave until they had seen the
steward, I must conclude that their initial discussion before
and after Reites' first visit was not a disruptive action on his
part but merely a normal consultation by the men among
themselves about what to do. Further, Reites clearly had
not made up his mind about discharge of Kaufman before
his second trip to the shack with the rainsuits; he only had
doubts about his ability as a craftsman after watching his
struggles in hooking up his torch and wire reel; 7 his only
remark to Hightower about Kaufman was a query as to his
apparent qualifications as an ironworker, in reply to which
Hightower merely reminded him of his authority to
discharge him if he could not do the work. He took no
action against Kaufman when the latter announced on the
first trip that he did not like to work in the rain, after other
men had gone back to work at Reites' direction. Reites
admits he made up his mind about Kaufman after his
second or third trip to the shack, when Kaufman alone
argued against Reites' efforts to persuade the group to go
back to work and try to get as much done before winter
weather set in, and then openly refused to go to work until
he saw the steward. As Mattson had already advised the
group that Respondent had the right to give them the
alternative of working or going home, there was no
apparent reason, as Reites pointed out to Kaufman, for
talking to the steward a second time, before they decided
whether to stay at work or go. I can find nothing in the
circumstances, nor in Kaufman's testimony, which would
justify his own refusal to choose an alternative, or his
announcement that the group would not make a decision,
before seeing the steward the second time . To the contrary,
it is inferable that he was raising this argument for
nonaction on Reites' orders as a pretext by trying to give
the second call for the steward the formal guise of
legitimate protected activity, for he admits that, when he
made the same announcement after Reites' third visit to the
shack, he wanted to see the steward to let him know the
men's decision to leave merely "as a matter of courtesy."
This was clearly a subterfuge, for it would have been a
simple matter for the men to punch out after they decided
to go home right after Reites' second visit, and send word to
the steward through someone as they left. Thus, it is a
reasonable inference that it must have been apparent to
Reites on his last visit that the men were still unable to
decide on his offered alternative, and that Kaufman was
fostering the indecision by his loud announcement that "we
would not go back to work until we see the steward," whom
they had already talked to. Kaufman admits in testimony
that he believed Reites called him an "agitator" at the
discharge because he (anew and-unknown ironworker) was
"a little bit extra talkative with the men when I came there,"
5 Farmers Cooperative Company v. N L.R B, 208 F 2d 296, 303, 304
(C A 8); N L R B v. Soft Water Laundry, Inc., 346 F.2d 930, 934 (C A. 5).
6 NLRB v Soft Water Laundry, supra, Caterpillar Tractor Co v
N L R B, 230 F.2d 357, 358 (C.A 7)
7 Although Kaufman's testimony indicated he could not hook up his
torch to the acetylene tank until he secured the proper kind of wrench, he
clearly did not know how to make the connection after he got the wrench,
for he admits Hakala had to "oversee " and help him , and in fact Hakala
"hooked up most of it", and Kaufman also had to ask Reites what
pressures to use for cutting He admits he was the "center of attraction -
the men came around to see if I could start off, if I did not know how, they
would help me." He also admits he had trouble getting the wire spool on
his reel, because it "tightened left-handed " His general ability is also
doubtful from his admission that he did not bring his own personal set of
tools to the job, relying solely upon the availability of "company tools "
Reites testified credibly that, after watching Kaufman struggle with the
equipment , he finally had to tell Hakala to make the hookup and he also
personally had to help Kaufman put the wire on his reel.
NAPOLEON STEEL CONTRACTORS, INC. 787
and that he "spoiled his (Reites ') pitch that they must work
then because the weather would get worse" and that his
"only mistake was that I tried to correct him by the
viewpoint about the weather ." Kaufman 's argument to
Reites about the future course of the weather appears to
have been a pure guess or bluff, in light of testimony of
Mattson, who lives in the North Dakota area, that rainy
weather often appears in North Dakota in the late Fall of
the year, before winter sets in, and that ironworkers
continue to work in such weather "as long as you do not get
wet." His testimony as to the local practice, and
Respondent 's knowledge of it, is supported by the
circumstances that ( 1) Respondent provided protective
rainsuits for the men on Reites ' second visit to the shack, (2)
on Reites ' first two requests that the men return to work,
first without and then with rainsuits , up to six men obeyed
and returned to work , as the rain had slackened each time,
and (3) the credible testimony of Mattson that ironworkers
in the radar building continued to work after their 9:30 a.m.
coffee break, even though they were partially exposed to
the ram blown into the building by a north wind.
The disruptive nature of Kaufman's conduct is also
highlighted by his repeated attempts to cloak his actions
with the appearance of statutory protection . He testifies
several times that he and Hakala repeatedly made the
"attempt" to go back to work and lead the younger men to
do the same , but this becomes incredible in light of his later
admission that he knew others put on rainsuits and left the
shack, after Reites posed the alternatives , and his
contradictions in saying at one point that he did not himself
put on a rainsuit and go out , because he already had on a
heavy jacket , and then reversing himself to say he did try on
a rainsuit but found it did not fit him ; he does explain why
he did not go back to work (as he says he wished to do) with
his heavy jacket, like others did, except to argue that "it
would not be fit or appropriate for me to go out and work in
the rain, and they sit in the shack"-"I could not work
against the interests of the men as a group, it would be an
insult to them and their interests- "It would not be fair to
them, would not look nice." I view this as pure pretext,
stated as an afterthought at the hearing, for such
considerations did not prevent at least six other union
ironworkers from going back to work twice at the foreman's
request. He also offers various other excuses for not going
out to work, including an alleged vague request by an'
anonymous group of older workers outside the shack that
the yardmen wait until the whole group , or ironworkers "on
the wall," went back ; but this is spurious because the men
on the wall went back and worked until Respondent shut
down the whole project at 10 a.m . It is obvious that this
excuse was a palpable attempt to place the blame for his
own actions upon other unidentified ironworkers.
In this connection , it is also significant that Kaufman, a
newcomer on the project and unknown to all other
ironworkers on the job, attempted shortly after he began
work to arrogate to himself some sort of leadership over the
yard crew , when he beckoned some of them to stop work
and come to the warming shack at the time the rain first
became heavier; this appeared to one yard man, John
Black , to be unusual action for a newcomer . By his own
admission, Kaufman was the most outspoken and vocifer-
ous worker among the group in the warming shack, and the
only one who took it upon himself to argue with Reites and
then presume to announce a purported decision by the
group , which in fact never reached a decision about
working or not until Reites had left after his third visit to
them . The only consistent action they took before that was
negative , i.e., indecision about continuing to work, after
listening to Kaufman's continual and rambling talk for
nearly an hour . I also note the testimony of steward
Mattson that he never knew or heard of Kaufman until he
saw him and heard him talk when he visited the yard shack
the first time . It is a reasonable inference from these
circumstances that Kaufman was somewhat of a congenital
agitator who imposed himself on the older yard hands as a
self-appointed leader and spokesman , without apparent
justification except an apparent desire to be the "center of
attraction," as he described himself during his struggles to
prepare his cutting and other equipment for work.
Other facts weighing against Kaufman's credibility and
claim of discriminatory discharge for concerted activity are
(1) although steward Mattson accompanied Kaufman when
he went to the superintendent for an explanation of his
discharge , the steward did not seriously question the reason
given by Hightower and Reites for the discharge,
particularly after Kaufman's apology for his conduct and
his admission that he had been invading management's
sphere by trying to "expedite the job "; he only asked that
Kaufman be given a second chance ; (2) Kaufman's recital
to his roommate some time later of the circumstances of the
discharge, including the fact that his work was unsatisfacto-
ry and he was "trying to start trouble out there," in which
he recited his troubles in hooking up his equipment ; s (3) he
filed charges against Reites and Hightower, both members
of the Union , under the Ironworkers ' constitution,
apparently based on his discharge , which were dismissed by
the executive board of the parent labor organization; (4)
Kaufman tried to "assist" the Board agents by preparing
Mattson's statement, but wrote it incorrectly to state that
Mattson had overheard the discharge by Reites, which
Mattson denied on the stand. Although Mattson signed it
without correcting his error , and the nature of the error is
not significant in making the findings herein , the incident
shows either Kaufman's carelessness with the truth or
inability even shortly after the event to recall and set down
the true circumstances , which highlights his similar inability
at the trial.
As against the cogent facts and circumstances noted
above which support a finding of discharge for cause, I note
that although Reites soon decided that Kaufman was not a
competent workman , and was advised he could discharge
him for that reason , neither he nor Hightower used that
specific reason in the final discharge interview , but when
Kaufman later filed grievances with the U . S. Army
pursuant to the overall agreement with the Union covering
the job, Respondent at first assigned "agitator" as the
reason for discharge , and then claimed specific incompe-
tence in handling his working tools . While neither grievance
8 On this point, I credit testimony of the roommate, Roy Slovenski,
which is corroborated in large part by admissions of Kaufman
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was prosecuted to a conclusion for reasons not material
herein, the shift in reasons for discharge, as well as the
failure to charge incompetence at the final discharge, raise
some suspicion as to the validity of the reason of "agitator,"
but this is not enough to overweigh the cogent proof of
discharge for insubordination in the form of "agitation"
adduced at the trial, particularly where Kaufman himself
admits he felt he was fired for working and arguing against
Reites' repeated and legitimate attempts to get the men to
return to work, which conduct I have found to be without
justification in all the circumstances found above. Hence,
while the word "agitator" is an equivocal one, which can be
used to refer to protected concerted activity, as well as
unprotected insubordination, I am satisfied that Kaufman's
own admission about the effect on Reites of his conduct
supports Reites' belief that his actions in the shack
amounted to insubordinate "agitation."
I also note that, after the discharge, Hightower was still
willing to give Kaufman another chance if a place could be
found for him at the Nekoma site, but this does not
condone his insubordination, for Hightower and Reites still
adhered to their decision not to re-employ him at the PAR
site, which is consistent with Reites' initial decision to
discharge him and refusal to take him back at that site.
Even though Kaufman's conduct and remarks to and for
the yardmen amounted to a form of concerted activity, it is
well settled that Section 7 of the Act does not protect all
forms of concerted activity, such as those that are unlawful,
violent, in breach of an existing contract, or indefensible to
the extent that they display a disloyalty to the employer
which is not necessary to protect or carry on legitimate
concerted activities of the workers.9 It has been held by the
Board and courts that the Act does not protect from
discharge an employee who commits acts of insubordina-
tion in persuading fellow-employees to disobey lawful
orders of the employer or which otherwise disrupt
9 N L R B v Washington Aluminum Co, 370 U.S 9, 17, and cases cited
therein
10 NLRB v Soft Water Laundry, Inc, supra, Stop & Shop, Inc., 161
NLRB 75, 79, 80
11 In reaching this conclusion on the facts and law, I have considered
harmonious labor relations between employer and employ-
ee, or among employees . 10 Here, Kaufman 's remarks and
conduct which prevented the yardmen from making a
prompt decision on working or not which their steward had
already told them Respondent could require them to make,
was clearly insubordinate conduct within the above cases
which Respondent had good reason to believe , and in fact
did believe , prevented the men from making that decision,
thus disrupting the operation in which they had been
involved and causing Respondent unnecessary expense.
On all the facts and circumstances pro and con, I must
conclude that Respondent has sustained the burden of
adducing substantial evidence to prove that it discharged
Kaufman only because it had good reason to believe that he
had engaged in the insubordinate activity found above,
which is sufficient to rebut the prima facie case of
discriminatory motivation adduced by General Counsel,
and that General Counsel has not sustained the ultimate
burden of proof by substantial evidence in the whole record
that Respondent discharged him because he engaged in, or
it believed, rightly or wrongly, that he engaged in concerted
protected activity of a type protected by the Act. I therefore
grant Respondent's motion to dismiss the complaint in its
entirety , and will recommend an order to that effect.ii
On the above facts I conclude as a matter of law that
Respondent, an employer engaged in commerce within the
meaning of the Act, has not violated the Act in any respect
by its discharge of Nathan J. Kaufman.
On the basis of the foregoing findings of fact and
conclusion of law , and on the entire record in the case, I
hereby issue the following recommended:
ORDER
The complaint in Case 18-CA-3128 is dismissed in its
entirety.
and weighed carefully other arguments made by General Counsel on the
basis of certain other facts and circumstances disclosed by the record, but I
make no specific findings thereon, because I have found them insufficient
to warrant findings of fact different from those made above and
insufficient to support or compel a finding of violation of the Act