Potter Electrical Engineering & Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1970

181 N.L.R.B. 743 (N.L.R.B. 1970)

POTTER ELECTRICAL ENGINEERING & CONSTR. CO.
Potter Electrical Engineering & Construction Co.,
Inc. and Joe Casper . Case 25-CA-3308
March 20, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On July 17, 1969, Trial Examiner John G. Gregg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommended that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof. The Respondent filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' In recommending dismissal of the complaint herein , the Trial Examiner
relied in a number of instances on the Board 's decision in Alton Box Board
Company, 155 NLRB 1025, and apparently adopted in toto the Trial
Examiner's analysis there of the Supreme Court decision in Burnup &
Sims. 379 U S. 21 While we agree that the complaint here should be
dismissed, in doing so we find it unnecessary to pass upon the Trial
Examiner 's reliance upon Alton Box Board on this point
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G GREGG, Trial Examiner- The complaint herein
alleges that the Respondent, Potter Electrical Engineering
& Construction Co., Inc., had engaged and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, 29
U.S.C. 151 et.seq. (hereinafter referred to as the Act)
The Respondent denies the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before me in
Terre Haute, Indiana, on April 8, 9, 10, and 11, 1969. All
181 NLRB No. 113
743
parties appeared, were represented and were given full
opportunity to be heard, produce and cross-examine
witnesses and to introduce evidence material and pertinent
to the issues. Subsequently, the General Counsel and
Respondent filed briefs and the General Counsel moved to
correct the record. That motion is hereby granted
Upon the entire record in the case, careful
consideration of the briefs, and based upon my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Potter Electrical Engineering & Construction
Company, Inc., herein referred to as the Respondent, is
and has been at all tunes material herein a corporation
duly organized under, and existing by virtue of the laws of
the State of Indiana, maintaining its principal office and
place of business at Terre Haute, Indiana, where it is
engaged in the electrical contracting business. The
Respondent corporation during the past 12 months, a
representative period, in the course and conduct of its
business operations performed services outside the State of
Indiana valued in excess of $50,000 and during the same
period purchased and shipped to its construction sites in
States of the United States goods and materials valued in
excess of $50,000 directly from points located outside the
State wherein the said construction sites are located
Accordingly, I find that the Respondent corporation is
now and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE UNION INVOLVED
Local Union No. 725, International Brotherhood of
Electrical Workers, AFL-CIO, herein referred to as the
Union, is and has been at all times material hereto a labor
organization within the meaning of Section 2(5) of the
Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint herein alleges that on or about
December 12, 1968, the Respondent discharged Joe
Casper, Robert Hockman, and Don Cannady and
thereafter failed and refused to reinstate them because the
said employees joined and assisted the Union and engaged
in other union activities and concerted activities for the
purpose of collective bargaining and mutual aid and
protection, and that by such acts the Respondent engaged
in unfair labor practices affecting commerce within tJle
meaning of Section 8(a)(3) and Section 2(6) and (7) of the
Act, and that by such acts the Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
The Respondent denies the commission of any unfair
labor practices, and by way of defense alleges that the
three individuals named in the complaint were discharged
for cause based on the instigation of a slowdown and
work stoppage in violation of an existing no-strike clause
in the collective-bargaining agreement. Additionally, the
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent alleges that the discharged individuals
involved filed a grievance under the collective-bargaining
contract, that the grievance was duly heard in a valid
arbitration proceeding and a decision duly rendered that
the grievance was without merit and should be denied; and
that accordingly under Board principles laid down in
Spielberg Manufacturing Company, 112 NLRB 1080, the
Board should not go behind the decision of the arbitration
committee
A. The Status of Fern Cresson
In its answer the Respondent admitted the supervisory
status of certain foremen but at the trial was permitted to
withdraw its admission with respect to one Fern Cresson.
The parties stipulated that Fern Cresson, among others,
was a crew foreman during the period from July 1, 1968,
to January 1, 1969. There is ample credible testimony of
record to establish the fact and I find that Fern Cresson
was at the times material herein a supervisor within the
meaning of the Act In this connection , Hollis B. Smith,
the Respondent's General Superintendent, credibly
testified without substantial contradiction in the record
that crew journeymen and apprentices took their orders
directly from the crew foreman who receives a higher rate
of pay and does not work with tools It was established on
the record that crew foremen pass the work orders to the
journeymen, check to see that the men are working, that
the work is done properly, order men to work and to take
action if they do not, and make out timesheets. The crew
foreman has authority to give permission to employees to
leave early; choose the employees to be assigned to certain
work based on an evaluation by the crew foreman of the
capability and skill of the crewman; to exercise
independent judgment to transfer employees from one
assignment to another; and report to higher authority any
problems in the conduct or performance of the work.
Accordingly, I find from the testunonv of record that
the crew foremen for the Respondent on the Hercules
project as a class and Fern Cresson, at the times he was a
crew foreman, had authority in the interest of the
employer, among other things, to transfer and assign
employees, and to responsibly direct them, using
independent judgment not of a merely routine or clerical
nautre, and that the said crew foreman including Fern
Cresson were at the times material hereto supervisors
within the meaning of Section 2(11) of the Act.
B. The Question of the Arbitration Award
As a separate defense herein the Respondent argues
that under the rules laid down by the Board it should not
go behind the arbitration award of the committee. I have
carefully considered the provisions of the contract relating
to dispute procedure and the contention of the Respondent
that the matter herein was duly disposed of by arbitration
in accordance with the terms of the contract. It is well
established and I am satisfied that in the case at hand the
proceedings as conducted on this record do not comply
with the requirements of the Board for a full and fair
hearing in accordance with the principles laid down in
Spielberg and related cases Significantly , the dispute
procedure as provided for in the contract requires that in
the event the Joint Conference Committee is unable to
agree or to adjust any matter referred to it , such unsettled
matters shall then be referred to the Council on Industrial
Relations for the Electrical Contracting Industry of the
United States and Canada for decision Its decision shall
be final and binding upon the parties hereto. The record
discloses that in the case at hand, after a deadlock before
the Joint Conference Committee, the matter herein, in
accordance with the contract, was referred to the Council
on Industrial Relations for the Electrical Contracting
Industry However, the record then discloses that the
matter was subsequently reopened before the Joint
Conference Committee through some informal procedure
not referred to in the contract, and that in fact no final
and binding decision was rendered by the Council on
Industrial Relations for the Electrical Contracting
Industry. More importantly, this informal proceeding was
conducted without notice to or assent on the part of the
grievants and without assuring them the opportunity to be
present at the reopened proceeding. I find, therefore, that
the parties to this contract did not follow the procedures
set forth for dispute settlement in Article III of the
contract.
While I would find the foregoing sufficient basis for the
assertion of jurisdiction by the Board , an additional fatal
defect is disclosed by the fact that the question before the
arbitrators is not the question to be answered by the
Board as stated in the complaint herein . The question
before the arbitrators was whether or not Casper,
Hockman, and Cannady were discriminatorily discharged
for "common-sense activity in the interests of the Union "
In my opinion this is not the question posed by the
complaint herein, that is whether or not Casper,
Hockman, and Cannady were discriminatorily discharged
because of their union or , other concerted activity
protected by the Act Accordingly, to assure that the
policies of the Act are effectuated, the ' Board, in
furtherance of its statutory duty will not defer to the
award by the Committee.
C Background Facts
The Respondent had a history of collective bargaining
and agreements with the Union herein , since 1954.
Commencing in 1960 the National Electrical Contractors
Association, hereinafter referred to as NECA, was
authorized by the Respondent to bargain on its behalf
with the Union. A contract between the Respondent and
the Union was in effect from 1964 through the year 1968
with the 1968 agreement to terminate effective December
31, 1968. This contract contained a no-strike provision.
Contract negotiations on behalf of the Respondent
through NECA with the Union took place commencing
October 9, 1968, and ran through December 1968.
Starting in October 1968 there were approximately eight
negotiating meetings On December 4 there was a meeting
of union members at which the membership indicated
rejection of the Company's contract proposals At this
meeting Robert Hockman led a group seeking rejection of
the contractor proposals, while Joe Casper, who was then
president of the Union, indicated his belief that the
contractors were negotiating in bad faith . Also present at
this meeting were Messrs. Kaperak , Bond , Cresson and
Hines Subsequently, at the contract negotiating meeting
of December 6 the negotiations came to a stalemate. At
this meeting Casper, on behalf of the Union, submitted a
letter to the contractors bargaining group indicating belief
that they were not bargaining in good faith . The major
issues at that time were wages and the right to strike,
among others. There was testimony of record to indicate
that Casper drafted a significant portion of the Union's
proposals in the bargaining sessions These proposals
included increases in wages, the Union's request for the
POTTER ELECTRICAL ENGINEERING & CONSTR CO 745
right to strike and a provision requiring the employer to
show just cause for rejection of employment
Verne Potter , president of the Respondent
Corporation , testified that the Hercules job contract called
for completion in September 1968, but that the
completion date had not been met , and the work was not
completed at that time He testified that there had been
many conferences and meetings with representatives of
Hercules relative to completing the job as early as
possible, and before January 1, 1969, in order for
Hercules to benefit through equipment depreciation
writeoffs which would require a certain amount of actual
production to be achieved with the equipment before the
end of 1968 Potter testified additionally that his failure to
complete the contract on time resulted in a reduction in
his fee for each day after completion date He described
his contract with Hercules as calling for a high price and
a low price , and if the Respondent could complete the job
at the low price he would receive the same fee as if he did
it with the high price Potter testified further that
December 1968 was a critical month because of the
objective of achieving the writeoff , and that because of the
alleged rotating absences and refusals to work overtime
the Respondent ' s profit position was being adversely
affected Potter testified additionally that the longer it
took to complete the job the more expenses went into
overhead and administration He testified that during the
period December 4 through December 12 Hercules, and
the job coordinators Perini, were querying him as to what
he was going to do about completing the job Potter
testified that in his 15 years in business he always had
good relations with Local 725, he had engaged in
collective bargaining with 725 and had never had a strike
during that period of time On one occasion however, in
April 1968 when the carpenters went out on strike the
electricians honored the picket line and did not report to
work at the Hercules site
The record and the testimony of Potter whom I credit,
and whose testimony was substantially uncontradicted
amply supports a finding, and I find that at the time
material herein , the Respondent was in an adverse
economic situation as the Hercules job continued to
operate after failing to meet the contractual completion
d ate
There was testimony of record by James Thomas, Job
Superintendent for the Respondent on the Hercules
jobsite, indicating that on Wednesday , December 4, 1968
the Respondent carried 67 individuals on the payroll in
addition to the office force The 67 consisted of 34 IBEW
Journeymen, I IBEW Apprentice, 23 Travellers and
Permit Men , 2 IBEW General Foremen and 7 IBEW
Crew Foremen On December 4, 65 of the 67 individuals
on the payroll reported for work On that date the
Assistant Superintendent reported to the Steward that he
needed 8 men for overtime that evening According to
Thomas, only 2 men and a foreman worked overtime
On Thursday , December 5 , 1968, there were still 67 on
the payroll comprised as indicated for December 4, 1968
Sixty-six individuals reported for work on December 5
According to Thomas a request was made that day for 6
men to work overtime but no one reported for overtime
work On Friday, December 6, 1968, there were 65
individuals on the payroll , but only 29 reported for work
None of the travellers and permit men reported for work
that day while only 23 journeymen and I apprentice
reported There was no work performed on Saturday,
December 7, 1968, and Sunday, December 8, 1968
On Monday , December 9, 1968, there were 64 men on
the payroll Nineteen travellers and permit men reported
that day Of the journeymen , 21 men did not report for
work On Tuesday , December 10, 1968, of 60 men on the
payroll only 25 reported for work No travellers or permit
men reported Of the journeymen , 21 reported for work
On Wednesday, December 11, 1968, of 50 men on the
payroll only 25 reported for work , 9 travellers and permit
men reported while 22 journeymen did not report On
Thursday, December 12, 1968, 30 journeymen and 1
apprentice reported for work
Thomas testified additionally concerning journeymen
that prior to the period covered above from December 4
through December 12 the number of journeymen reporting
for work on December 2, 1968 , was 35, travellers 20,
December 3, 1968, 35, travellers 22, December 4, 1968,
34, travellers 22, December 5, 1968, 34 travellers 23
Subsequently on December 6, 1968 , none of the travellers
and permit men reported while only 23 journeymen and 1
apprentice reported
While the General Counsel attempted to raise questions
involving the accuracy of the numbers involved in the
rotating absences , it is clear to me from the substantially
uncontradicted testimony of record , that the foregoing
statistics , as testified to by Thomas, and substantially
corroborated by testimony and exhibits of records, are
accurate and I credit the Respondent ' s version of the
absences occurring during the period Thursday , December
5, through Wednesday , December 11, 1968
The record also discloses that Casper and Hockman
were active union members and that the Respondent had
knowledge of this The record establishes the fact that at
the December 4 meeting of the union members Hockman
led the group on the floor in rejecting the contractors
proposals while Casper stated that he felt the contractors
were negotiating in bad faith According to Casper's
uncontradicted testimony, foremen or supervisory
personnel at this meeting were Kaperak , Bond , Cresson
and Hines The record also establishes the fact that at the
meetings of union members and in various conversations
on the jobsite during the period of negotiations prior to
his discharge , Casper engaged in many conversations with
other employees in which there was discussed the contract
negotiations and in which Casper voiced his dissatisfaction
with the contractors proposals I am convinced and I find
from the testimony of record that these discussions took
place and that they continued up to and through the last
week of Casper 's employment prior to his discharge It is
also clear that Casper communicated his dissatisfaction
and opposition to the contractors proposals in discussions
with foremen and other of the Respondent's supervisory
personnel including a conversation with Superintendent
Thomas and Assistant Superintendent Keyes
D The Discharge of Casper Hockman and Cannady
Smith, a general superintendent for the Respondent
testified that Casper , Hockman and Cannady , all prior
employees , were referred to the jobsite by Locai 725, that
Casper was hired on February 2, 1968, Hockman on May
13, 1968, and Cannady on October 15, 1968 Smith
testified that in a prior employment with the Respondent
Casper had been stirring up the job and Smith didn't like
it Smith testified that he had opposed Casper ' s hire on
the Hercules jobsite as a habitual troublemaker In hiring
Casper , Smith stated that he told Casper to get out on the
job and keep his mouth shut Smith stated he did that
after agreeing to take on Casper at the personal request of
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the business agent , Dane Heady Smith testified that he
himself was a member of the Union He testified that he
made the decision to discharge the three men on the
morning of December 12, that his reasons for discharging
these employees were for economic reasons, that the job
was behind schedule and production poor and because of
past experiences relating to the Hatfield job where two of
them, Casper and Hockman according to Smith, had
been discharged Smith stated that his reason for selecting
Cannady for discharge was more or less on a personal
grudge basis because of the fact that Cannady had quit
the Respondent's employ on numerous occasions when the
Respondent needed him badly but had returned to work
at the Hercules job without the knowledge of Smith on
October 13, and because of the fact that Cannady was not
available when overtime work was needed Smith stated
frankly that he didn't know whether or not Casper and
Hockman were the cause of the slowdown but that he had
to start someplace to do something about it and he
selected Casper and Hockman because of his past
experience with them as troublemakers
Smith testified with respect to Hockman that the
reason he terminated Casper and Hockman was because
of his prior experience with them and his knowledge of the
trouble that was caused on the Hatlicld job where
numerous walkouts had taken place and he understood
that Casper and Hockman and the whole crew were fired,
the employer given the right to rehire, and Casper and
Hockman had not been rehired Smith testified that he
hired Hockman also as a favor to the business agent
Smith testified that he acted for economic reasons because
the Hercules job was "rotating' and Smith had to stop it
and had to start somewhere, and he selected Casper,
Hockman and Cannady as his first move, and had this not
stopped the rotation, there would have been more
discharges the next day Smith denied that Casper's
position as a union official had anything to do with his
selection for discharge
Smith testified that the permit men had quit three or
four a day until the total of 25 to 30 were all gone and
that it would not be normal for permit men to leave a
controlled temperature fob such as he had at Hercules for
another job in the mud and dirt in zero weather From my
observation of Smith's demeanor as he testified I was
impressed with his sincerity and straightforwardness and I
credit his testimony
Casper testified that while he was president of the local
union no slowdown tactics were brought to his attention
He also testified that the local union did not authorize any
slowdown tactics He stated that he never engaged in any
"crew rotation " He also stated that he never personally
observed any stalling tactics on the job during the weeks
in December when the events in this case transpired In
rationalizing his own absence from the jobsite on Monday,
the 9th of December, and Wednesday, the 11th of
December, Casper testified that he had the flu, that he
became ill on Sunday, called in sick Monday He treated
himself by taking aspirin and drinking plenty of water and
staying in bed Casper testified that he returned to the job
on Tuesday As he put it, "Well, simply because I wanted
to go to work and I felt like I could go ahead and work "
According to Casper he had a recurrence and so on
Wednesday he took the day off While he had called in
sick on Monday, he indicated that he had asked his wife
to call in sick for him on Wednesday but she had just
forgot to call in From my observation of the demeanor of
the witness as he testified, I do not credit Casper's
testimony relative to his absences
There was testimony of record by Robert Hockman
that he was discharged on December 12 that he had never
engaged in any slowdown nor encouraged others to do so
However he testified that he was absent on Friday,
December 6, and then on Tuesday, December 10, and
Wednesday, December 11 He gave as his reasons for the
absences, "We had been working out in the rain and I
thought I had malaria, but it didn't act like malaria
because my malaria medicine didn't help, so I figured I
had the flu ' Hockman stated that he saw a doctor on
Saturday He returned to work on Monday and on
Monday night decided to take off and stay home until he
felt better He did not report to work on Tuesday and
Wednesday Hockman testified that he had participated in
a walkoff in violation of the contract provisions at the
Hatfield job, a prior employment, and also quit that job
when all the others quit the fob Concerning the walkoff at
Hatfield in violation of the contract, Hockman stated,
"That was the only weapon we had, for us to walk off the
fob " While Hockman's testimony indicated clearly that
he was an active union steward and had close and
continuing communications with the men on the Hercules
job relative to the contract negotiations, he stated that he
had no knowledge of the sharp rise in the incidence of
absences on the job from Friday, December 6, through
Wednesday, December 11, and had heard no conversation
concerning it From my observation of the demeanor of
Hockman as he testified and the nature of his responses, I
do not credit his testimony
Cannady testified that he was absent on Friday,
December 6, with the flu, although his first symptoms
appeared on Thursday He testified that he continued to
work on Thursday, called in sick on Friday, then returned
to work on Monday, December 9 He was then absent on
Wednesday, December 11, for the reason, as he testified,
that his wife's stepmother who had been ill for a long
period with a stroke was critically ill So he took the
family out of the city to visit his wife's stepmother He
returned to work the following day, Thursday, December
12 While Cannady's testimony concerning his visit to his
wife's sick stepmother is established on the record, there
nevertheless remains the question of the coincidence of his
1-day attack of flu and his selection of Wednesday,
December 11, to visit his wife's stepmother who had
already been ill for a considerable period of time
On the basis of my observation of the witnesses as they
testified and with particular reference to the absences of
Casper, Hockman, and Cannady, I do not credit their
testunony with respect to the reasons which they advanced
for their absences At best I found them lacking in
sincerity All seemed completely unaware of the pattern of
their absences and the fact that they fitted in harmony
with the overall pattern of absences established on the
record
There was also some testimony of record by
Falkenberg, an employee of the Respondent who was also
a member of the Union, concerning a conversation with
Superintendent Smith when Falkenberg was referred to
the jobsite at Hercules for employment by the
Respondent In this conversation, according to
Falkenberg, Smith allegedly stated that Falkenberg was
on the "black list" and that he did too much talking out
there, and that if Falkenberg could straighten up and keep
his mouth shut he could go back to the job Based on my
observation of the witness Falkenberg as he testified I
simply do not credit his testimony and accord it no weight
as indicative of any antiunion remarks or antiunion
animus on the part of Smith
POTTER ELECTRICAL ENGINEERING & CONSTR CO. 747
E. Discussion, Findings, and Conclusions
Section 8(a)(3) of the Labor Management Relations
Act provides in pertinent part that "It shall be an unfair
labor practice for an employer - . . . by discrimination in
regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage
membership in any labor organization-
The question is whether the Respondent by discharging
Casper, Hockman and Cannady under the circumstances
indicated herein discriminated in regard to their hire or
tenure of employment to encourage or discourage their
union activities
The record in this case is clear in its indication that the
Respondent had a long history of stable and amicable
relations with the union involved. No significant probative
evidence of animus is disclosed. On the contrary there was
presented considerable evidence of the existence of a well
founded labor-management relationship. A history of
collective bargaining and the execution of contracts is
established Foremen are union members The absence of
animus in this case is a relevant factor Alton Box Board
Company, Containers Division , 155 NLRB 1025 at 1039
I am persuaded from ample credible testimony and
exhibits of record and I find by comparison with prior
records that an unusual pattern of absences took place on
the Hercules job during the period December 6, 1968
through December 11, 1968, just prior to the discharges
herein.
The record also establishes the fact that during the
month of December 1968 the incidence of influenza came
up sharply to a reported number of 93 while the incidence
of pneumonia continued somewhat normal at 24 It was
during this time that the Asian flu was epidemic
The factual question to be determined from the record
is whether the pattern of absences established on the
record for the period material hereto was caused by the
epidemic or was generated and carried out as a pressure
device at a critical period in connection with the contract
negotiations. On the basis of the record as a whole and
my crediting of the testimony of witnesses as indicated
herein, I am persuaded and I find that the absences were
generated and carried out as a pressure device or work
stoppage in violation of the contract and that Casper,
Hockman and Cannady participated therein
However, even assuming, arguendo, that the pattern of
absences was in fact attributable to the flu epidemic and
not deliberately generated as a pressure device, I would in
any event not find that controlling herein For I view this
case as falling within the ambit of Alton Box, supra. Since
there was in fact an unusual pattern of absences which
had the effect and appearance of a slowdown or work
stoppage, and since this pattern coincided with a critical
phase of the contract negotiations and was in fact
economically detrimental to the Respondent, I would
conclude that it would be reasonable for Smith to believe
that the absences were deliberately generated and were
designed to exert pressure on the Respondent in
connection with the contract negotiations in violation of
the no-strike provision of the existing contract Casper on
cross-examination stated that while he was employed on
the Hatfield job and was at that time president of Local
725 there were work stoppages on that job at a time when
the collective- bargaining contract contained a no-strike
clause. Casper testified there was more than one such
walkout or work stoppage, and that at the time of the
work stoppages on the Hatfield job he was aware of the
fact that this was a violation of the contract between the
employer and the union Additionally Hockman testified
that this was the "only weapon they had " Under these
circumstances I am satisfied that the action of Smith, with
knowledge of the activities of Casper and Hockman on
the Hatfield job, in selecting Casper and Hockman for
discharge was not because of their protected union activity
as alleged in the complaint but because of what he
believed to be their instigation of and participation in a
work stoppage in violation of the contract
While there was testimony of record indicating
protected activity by Casper including complaints by him
when he was job steward on several occasions to Foreman
LaFollette relative to working conditions, it is equally
clear that no discriminatory action is disclosed on this
record as having been taken by the Respondent relative to
these matters On one occasion Casper quit the
Respondent's employ because of Smith's failure to live up
to an oral agreement with Casper individually, an
agreement not contained in the collective- bargaining
contract.
After careful consideration of the record as a whole I
am convinced and I find that Casper, Hockman and
Cannady were selected for discharge by Smith not because
of their protected union activity but becuase Smith had
reasonable grounds for believing that the unusual pattern
of absences was in fact a deliberate slowdown or work
stoppage in violation of the contract and because this
activity was adversely affecting the Respondent's
completion of and profit on the Hercules job and because
Smith believed in good faith that Casper, Hockman and
Cannady were responsible for the work slowdown or
stoppage and participated in it. In so finding I credit the
testimony of Smith whose demeanor as he testified
impressed me with his sincerity and straightforwardness
With no hesitation he honestly stated the basis for his
actions in selecting the three individuals for discharge He
impressed me as a person of conviction, freely admitted
that he had no proof that Casper and Hockman were the
instigators of the slowdown and convinced me of his
sincerity in believing that the absences were in fact a
slowdown economically harmful to the Respondent and
that some action had to be taken to stop what he believed
to be an interference with production in violation of the
contractual agreement. I credit his testimony and I find
that he did not either in whole or in part discriminatorily
discharge the three individuals because of their protected
activity for the purpose of encouraging or discouraging
union membership as charged in the complaint.
I am persuaded that there was more than mere
coincidence in the fact that the absences of these
individuals were in concert with the apparent and unusual
pattern of rotating absences developed on this record,
which occurred on the Hercules job. Even were I
persuaded, arguendo, that the reasons advanced by them
for highly coincidental timing of the absences were valid, I
would nevertheless conclude that under the circumstances
it was reasonable for Smith to have concluded that these
individuals were participating in and acting in concert with
the others in the execution of a rotating slowdown in
violation of the contract, particularly in view of Smith's
knowledge of what had happened on the Hatfield job, and
particularly in view of the critical timing of the unusual
pattern of absences with the stalemate in negotiations.
While the record does indicate that the Respondent for
some time failed and in fact refused to give a reason for
the discharges, I do not draw any inference of
discriminatory motive from this in view of the
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straightforward testimony of record by Smith, whom I
credit, to the effect that he could not substantiate his
belief that Casper and Hockman were connected with the
slowdown or work stoppage. I am convinced that Smith
discharged them only for this reason and that accordingly
the Respondent has not violated Section 8(a)(3) and (1) of
the Act. N L R B v. Fansteel Metallurgical Corp., 306
U.S. 340. Accordingly I shall recommend dismissal of the
complaint herein.
I am not unmindful of the close question involved in
this case and the difficulty of determining the
Respondent's motivation for the discharges, I have also
carefully considered the fact that this record does not
disclose, as was found in Alton Box Board Company,
Container Division, 155 NLRB 1025, positive actions by
the Respondent when it became aware of the unusual
pattern of absences, to inquire into the matter, to discuss
it with the union officials involved and to warn the
appropriate officers of their determination to take prompt
and drastic remedial action I am nevertheless persuaded
that the record herein contains insufficient credible
evidence and fails to establish the unlawful motive for the
discharge as alleged in the complaint. Alton Box Board
Company, Container Division, 155 NLRB 1025 As in the
Alton case, in the case at hand it is unnecessary to
determine whether Casper, Hockman, and Cannady
personally instigated and led the illegal work stoppage
since I am persuaded and I find that the Respondent
discharged these three individuals in the reasonable belief
that they did and that this good - faith belief is sufficient to
immunize the discharge . As stated in Alton , the doctrine
that an employer ' s bona fides in a discharge are
immaterial applies only where the concerted activity
giving rise to the discharge is protected by the Act.
N L.R B v Burnup and Sims, Inc , 379 U.S 21.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following
CONCLUSIONS OF LAW
I The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 725, International Brotherhood of Electrical
Workers is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent, by discharging Casper, Hockman,
and Cannady has not engaged in unfair labor practices
within the meaning of Section 8(a)(I) and 8(a)(3) of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, I recommend that the complaint
herein be dismissed in its entirety