Quality C.A.T.V., Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1986

278 N.L.R.B. 1282 (N.L.R.B. 1986)

1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality C .A.T.V., Inc. and Charles H. Boyle, Jr.
and Jerry Reners . Cases 25-CA-14714 and 25-
CA-14714-2
27 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 3 March 1983 Administrative Law Judge
Stephen J . Gross issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
and a motion to strike . The General Counsel re-
sponded to the motion."
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent with this
Decision and Order.
Contrary to the judge, we find that the Respond-
ent violated Section .8(a)(1) of the Act by discharg-
ing Charles H. Boyle Jr . and Jerry Reners on 23
July 1982.
Boyle and Reners were linemen who installed
television strands on utility poles . On 22 July 1982
rain interrupted their work . Their supervisor, Jeff
Fairfield, suggested the crew go to a nearby restau-
rant and he left in a company truck with two
crewmembers. Boyle and Reners continued to
work for a few minutes in the rain and then got
into another company truck with groundman Brian
Holt. The truck would not start and , after waiting
a while expecting that the other employees would
return for them , Boyle , Reners, and Holt walked in
the rain to the restaurant . While they were sitting
in the disabled truck , Boyle and Reners decided
not to climb anymore that day. 3
' We find it unnecessary to consider the General Counsel 's request that
the Board take administrative notice of a United States Department of
Labor bulletin concerning electric shock hazards , and the Respondent's
motion to strike the General Counsel 's reference to the bulletin.
8 The General Counsel has excepted to some of the judge 's credibility
findings . The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
We correct an inadvertent error in fn. 6 of the judge 's decision, which
refers to institution of a criminal action "against Reners ." Reners filed
criminal action against Martin.
3 Boyle testified that Reners and Holt told him , while they were sitting
in the truck , that they were not going to go back to work . Holt testified
that while they were in the vehicle , Boyle and Reners told him they
were not going to climb the rest of the day.
When the rain subsided , all personnel returned to
the worksite , and Boyle and Reners refused to
climb the utility poles to continue their work. Each
pointed out to the supervisor that he was wet. The
supervisor secured the work and dismissed the
crew . He later discussed the incident with the Re-
spondent 's president and discharged Boyle and
Reners the next morning when they reported for
work.
The complaint alleges that Boyle and Reners
"ceased work concertedly and engaged in a strike
by refusing to perform physically dangerous
work," and that the Respondent discharged them
because they engaged in that activity . The judge
found that Boyle and Reners acted concertedly,
but that they did not refuse to work because of
safety considerations and were primarily upset by
what they saw as their supervisor 's lack of concern
for their comfort. Accordingly, he concluded that
the General Counsel had not shown that their dis-
charges violated the Act.4 We disagree.
As the judge found, Boyle and Reners acted in
concert in refusing to work-they had discussed
the matter earlier and refused at the same time.
Their concerted refusal to work was to protest the
requirement that they climb poles when wet, an
employment condition . Protest over this employ-
ment condition was protected whether Boyle and
Reners acted because they were concerned about
their safety , their personal comfort, or their super-
visor 's attitude .5 In carrying out their protest
Boyle and Reners did not exceed the permissible
bounds of protected activity-they were not vio-
lent, and they did not appropriate the Respondent's
property or prevent it from operating with other
4 The judge considered the issue in the case limited to whether the dis-
charges were unlawful because they resulted from a refusal to work due
to employee concern about safety . We think , however , that the case
raises the broad issue whether the Respondent violated the Act when it
discharged Boyle and Reners for their refusal to work , and the underly-
ing question whether the employees' refusal to work constituted protect-
ed activity . Even if the complaint were read narrowly , at the hearing and
in their briefs the parties fully litigated the nature of the employees'
work , their reason for refusing to work, and the circumstances of the re-
fusal and discharge . It is well established that a "variance between com-
plaint and findings will not defeat a Board determination when the issue
on which the findings were based was fully litigated ." Rea Trucking Co.
v. NLRB, 439 F.2d 1065 , 1066 (9th Cir. 1971). Indeed , the courts have
gone further and held that "a material issue which has been fairly tried
by the parties should be decided by the Board regardless of whether it
has been specifically pleaded." American Boiler Mfrs Assn. Y. NLRB, 366
F.2d 815 , 821 (8th Cir . 1966). Here, any variance between the complaint
and the proof was not prejudicial because the matter was fully litigated.
See NLRB Y. Washington Aluminum Co., 370 U.S. 9 (1962). Even if
the employees refused to work because they were wet and uncomfortable
and sought to protest their supervisor 's lack of concern , their conduct
would be protected under the Supreme Court's Washington Aluminum
decision. The Court held that "the reasonableness of workers' decisions
to engage in concerted activity is irrelevant" and that "concerted activi-
ties by employees for the purpose of trying to protect themselves from
... uncomfortable" working conditions fall within the scope of Sec. 7.
Id. at 16-17.
278 NLRB No. 156
QUALITY C.A.T.V. • 1283
employees. They simply refused to continue the
work they were performing, and there is no evi-
dence that they intended to do some but not all the
work or to stop their work intermittently.6
Accordingly, we conclude that Boyle and
Reners were engaged in protected concerted activi-
ty. when they refused to work on 22 July 1982, and
their discharge violated Section 8(a)(1).
CONCLUSIONS OF LAW
1. Quality C.A.T.V., Inc. is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.7
2. By discharging Charles H. Boyle Jr. and Jerry
Reners on 23 July 1982 because they engaged in
protected concerted activity, the Respondent en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8 (a)(1) and Section
2(6) and (7) of the Act.
3. The General Counsel has failed to prove that
the Respondent violated Section 8(a)(1) and (4) by
its conduct toward Jerry Reners on 20 August
1982.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we will order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
As the Respondent discharged Charles H. Boyle
Jr. and Jerry Reners in violation of Section 8(a)(1)
of the Act, we will order it to offer them reinstate-
ment and make them whole for any. loss of earn-
ings and other benefits, computed on a.quarterly
basis from date of discharge to date of proper offer
of reinstatement , less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Quality C.A.T.V., Inc., Sheridan,
Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
See Daniel Construction Co., 277 NLRB 795 (1985 ); Audubon Health
Care Center, 268 NLRB 135 (1983); Brown & Root Y. NLRB, 634 F.2d
816 (5th Cit . 1981), enfg. 246 NLRB 33 (1979); Polytech, Inc., 195 NLRB
695 (1972). .
7 The Respondent is engaged at Sheridan , Indiana, in the business'of
operating cable television and performing related services . During the 12-
month period ending 26 July 1982 it derived gross revenues in excess of
$100,000 and purchased and received at its Sheridan facility goods valued
in excess of $50 ,000 directly from points outside the State of Indiana.
(a) Discharging employees because of their pro-
tected concerted activity.
(b) In any like or. related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Charles H. Boyle Jr. and Jerry Reners
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantial-
ly equivalent positions , without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
their unlawful discharge, in the manner set forth in
the remedy section of this decision.
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Sheridan, Indiana, copies
of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being ' signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
I agree with the judge that the Respondent did
not unlawfully threaten and assault employee
Reners . Contrary to the majority , however, I also
agree with the judge for the reasons below that the
Repondent did not violate Section 8 (a)(1) by dis-
charging Reners and employee Boyle.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For purposes of clarity I shall restate the judge's
findings . The Respondent constructs and operates
cable television systems .- On 22 July 1982 Boyle,
Reners, and employees Clark Holt and Brian Holt
were stringing cable television lines on utility poles
under the supervision of Balinsky and Fairfield.
When a light rain began to fall , Fairfield told the
employees that they could take shelter in one of
the two company trucks at the worksite . Boyle and
Reners continued working for a short time, but
soon descended and joined Brian Holt in the cab of
one of the trucks . During the rain delay , Fairfield,
Balinsky , and Clark Holt drove the second truck to
a restaurant a quarter of a mile from the worksite,
but before leaving they suggested that the other
three drive the first truck and join them at the res-
taurant . Soon thereafter Boyle , Reners, and Brian
Holt decided to go to the restaurant, but they were
unable to start their truck. At first they assumed
that their supervisors would return to help them,
but when they realized that no help would be
forthcoming they became upset at their supervi-
sors' apparent. lack of concern . The judge found
that the employees then agreed to refuse to per-
form any further work that afternoon . Approxi-
mately one-half hour. after entering the truck, the
employees walked to the restaurant in what had
become a heavy rain . They were soaked by the
time they arrived , and their supervisors laughed at
their wet appearance. When the rain stopped an
hour later , Boyle and Reners refused to resume
work on the utility poles , asserting that they were
still extremely wet.' Fairfield angrily ordered an
end to the day's work , and that evening the Re-
spondent's president, Martin, instructed Fairfield to
discharge Boyle and Reners. When informed of
their discharge, Boyle and Reners visited Martin
and asserted that . their refusal to climb the poles
was prompted by safety considerations . The em-
ployees also complained that some of the Respond-
ent's personnel had been unfriendly, but Martin re-
fused to reinstate them.
The judge noted the complaint allegation that
Boyle and Reners were discharged for refusing to
perform "physically dangerous" work,/ and he
found that the only issue litigated was whether
they were discharged for protesting safety condi-
tions . The judge then concluded , and I agree, that
the employees' concerted protest did not focus on
matters of safety . He first observed that the utility
poles on which they had been working contained
only nonhazardous telephone lines rather than haz-
ardous electric power lines . He then emphasized
that Boyle and Reners decided to refuse to work
' Brian Holt did not join Boyle and Reners in refusing to resume work.
when their truck stalled and their supervisors failed
to return to help them , and he concluded that the
employees were primarily troubled by this "appar-
ent lack of concern about their comfort ."2 Because
he found that an alleged safety protest was the
only issue litigated , the judge found it unnecessary
to consider whether their discharges might be un-
lawful "under other theories."
What the judge did not determine is whether
Boyle and Reners were engaged in protected activ-
ity by protesting their supervisors ' "lack of concern
about their comfort." Assuming, arguendo , that it
is necessary to reach this issue, I would nonetheless
find that the discharges did not violate Section
8(a)(1).
I would find that the employees ' concerted con-
duct was not protected because the issue which
they were protesting is not related to their working
conditions .3 Rather, the incident which gave rise
to their protest contains all the earmarks of a per-
sonal, and not a work-related , conflict . I consider it
self-evident that their desire to go to the restaurant
during the rain delay was a personal objective un-
related to their working conditions . Their stalled
truck prevented them from attaining that objective,
and their assumption that their supervisors would
return to help them proved to be incorrect. The
employees believed that their supervisors were in-
different to their plight and they responded by be-
coming upset and by resolving to do no further
work that afternoon . Consequently , the protest was
rooted in the injured feelings which the employees
experienced as a result of their supervisors' failure
to assist them in attaining a personal objective. The
personal nature of the protest is underscored by the
employees' subsequent complaint to Martin that
some of the Respondent's personnel had been "un-
friendly" to them . In view of the above, I would
find that the concerted protest was not focused on
working conditions and was simply the product of
personal friction between Boyle and Reners and
their supervisors . I therefore would conclude that
their conduct was not protected and that their dis-
charges were lawful.
2 The majority asserts that the employees refused to work "to protest
the requirement that they climb poles when wet, an employment condi-
tion." The majority then states that the employees' protest over this em-
ployment condition was protected , whether they. "were concerned about
their safety, their personal comfort , or their supervisors ' attitude." In
fact, the judge did not find that the employees were protesting the re-
quirement that they climb poles when wet. Rather , he found that the
actual focus of their protest was their supervisors ' failure to return to
help them with their stalled truck , which the employees interpreted as a
"lack of concern" about their comfort.
3 See generally Autumn Manor, 268 NLRB 239 fn . 1 (1983); Phase,
Inc., 263 NLRB 1168, 1169-1970 (1982).
QUALITY C.A.T.V. 1285
APPENDIX
NOTICE To EMPLOYEES
POSTED- BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1982, agents of Quality verbally threatened and physical-
ly assaulted Reners because Reners "was the subject of
charges filed with the Board and because he gave testi-
mony to the Board in the form of an affidavit."2
As discussed below, my conclusion is that Quality did
not violate the Act in any respect."
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge employees for engaging
in protected concerted activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Charles H. Boyle Jr. and Jerry
Reners immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
QUALITY C.A.T.V., INC.
Robert Hayes, Esq., of Indianapolis , for the General
Counsel.
Stephen C. Cline, Esq., of Indianapolis, Indiana , for the
Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The
General Counsel claims that : (1) on July 23 , 1982, Re-
spondent Quality C.A.T.V., Inc. fired Charles Boyle Jr.
and Jerry Reners when they concertedly refused to work
because of unsafe conditions ;' and (2) on August 20,
1 For cases upholding the interpretation of the National Labor Rela-
tions Act underlying the General Counsel 's contention see, e.g ., NLRB v.
Washington Aluminum Co., 370 U.S 9 (1962); Tamara Foods, 258 NLRB
1307 (1981), enfd. 692 F.2d 1171 (8th Cit. 1982).
A. The July 23 Discharges
1. Quality's business and the duties of its linemen
Quality is in the business of constructing and operating
cable television systems, primarily in nonurban areas in
Indiana. In the geographical areas in which Quality oper-
ates, cable television lines are generally strung from utili-
ty poles. (Quality contracts with local power companies
to obtain the right to use the poles for that purpose.)
Sometimes the utility poles used by Quality carry only
electric power lines, sometimes only telephone lines. But
most often the poles carry both, electric power and tele-
phone lines. The electric power lines are invariably
above the telephone lines. Quality's linemen climb the
poles and run an unpowered wire known as "strand" be-
tween the lowest electric power lines and the telephone
line. They then hang the television cable from the strand.
2. Safety conditions
As just noted, strand carries no electricity. Television
cable does, but not while Quality's linemen are working
with it.
Telephone lines carry 48 volts of electric current.
Contact with a telephone line does not produce a serious
shock. (As Charging Party Boyle testified, one "misty"
day Boyle, who was wet, "got into" a telephone line
while holding strand. The result: it "tingled" his leg.)
Electric power lines carry various voltages. The elec-
tric power lines closest to cable television lines are "se-
condaries," i.e., lines carrying normal house current.
Each carries 110 volts. Ordinarily one would not receive
a shock from touching secondary lines since they are in-
sulated. Assuming a break in the insulation, touching one
of the lines while also touching a "ground" (pole, cable
television strand, etc.) would produce a 110 volt shock
(the same as a shock produced by contact with, say, an
electric light socket in one's house). Touching both 110
volt lines would produce a 220 volt shock.
According to the safety coordinator for the Indiana
Statewide Association of Rural Electric Membership
Corporations (who Quality called as a witness): (1) it is
safe to work around secondary lines even when wet; and
(2) power company linemen do routinely work on and
around secondary lines when they are wet, and do so
without special safety equipment.
2 Complaint par. 6(c).
S The consolidated complaint, dated September 9, 1982 , was based on
charges filed by Boyle and Reners on July 26 and August 23, 1982, re-
spectively. Quality admitted the jurisdictional allegations of the com-
plaint, but denied any wrongdoing.
The General Counsel has filed an unopposed motion to correct record.
The motion is granted , with the exception of that portion of the motion
refermg to p. 97, L. 24.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric power lines at the top of utility poles (and
thus farthest from television cable) are "primaries,"
which carry much higher voltages. Everyone agrees that
special safety precautions must be taken when working
around primary lines.
Boyle and Reners are both experienced cable televi-
sion linemen . But they have never received any compre-
hensive safety training, and neither is fully knowledgea-
ble about the precise nature of the electrical shock haz-
ards presented by the electric power lines carried by the
poles on which they worked. Moreover, a few days
before the incident here in question, Boyle's and Rener's
crew accidentally wrapped some strand around several
electric power lines. As Boyle described it, the resulting
short circuit "snapped" and "cracked." No one got hurt,
but a utility company employee who came to investigate
told the Quality crew that they should not work around
the electric power lines without safety gear. That com-
ment, in turn, touched a sore point because both Boyle
and Reners thought that Quality was remiss in not pro-
viding its linemen with a complete set of safety gear.
(Quality provided only nonconductive hardhats.)
3. The events of July 22, 1982
On July 22, 1982, Boyle and Reners were working
with two other Quality employees, Clark and Brian Holt,
and two Quality supervisors, Fred Balinsky and Jeff
Fairfield. Clark Holt, like Boyle and Reners, was a line-
man. Brian Holt was a "ground handler." Not long after
the crew's lunchbreak, a light rain began to fall. Boyle
and Reners were up on poles at the time. The pole on
which Boyle was working held no electric power lines.
A telephone line went 'up the pole and then over to a
nearby house. The point at which the television strand
touched the pole was about a foot below the point at
which the telephone line left the pole on' the way to the
house. The utility pole on which Reners was working
was across the road from Boyle's utility pole, but other-
wise was identical to it (in that the only line on the pole
other than the television strand was a telephone "house
drop"). All other poles in the area on which the televi-
sion cable was to be strung were the more typical kinds
of utility poles, holding electric power lines as well as a
telephone line. I
Both Boyle and Reners kept working for a while after
the rain began even though their immediate supervisor,
Jeff Fairfield, advised them that they could come down
to take shelter in one of the two company trucks parked
nearby. After a time Boyle and Reners did descend and,
with Brian Holt (who had been helping them), got into
the cab of the "bucket truck." In the meantime Fairfield,
Balinsky, and Clark Holt, in the 'other truck, had driven
off to a restaurant about one-quarter of a mile away,
after suggesting to Boyle, Reners, and Brian Holt that
they follow.
The three employees tried to do just that, but the
bucket truck would not `start. The three assumed that Ba-
linsky, Fairfield, or Clark Holt would quickly realize
that something must be wrong and drive back to help
them out. That did not happen and the three employees
got upset at the apparent lack of concern on the part of
their supervisors. Still sitting in the cab of the bucket
truck, the three agreed that they were going to,refuse to
do any further work that afternoon. Finally, about one-
half hour after the employees had gotten into the bucket
truck, they climbed out and walked to the restaurant. By
that time the light rain had turned into a downpour. The
three got drenched, and undoubtedly presented a bedrag-
gled appearance as they entered the restaurant. In any
case, as Reners testified, Balinsky, Fairfield, and Clark
Holt "started laughing. They think it's funny."
About an hour after Boyle, Reners, and Brian Holt ar-
rived at the restaurant, the rain stopped. Fairfield de-
clared that work should resume, and all the Quality per-
sonnel drove back to the worksite. The first order of
business was for Boyle and Reners to complete the work
on the poles that they had been working on when the
rain began . But both Boyle and Reners, pointing out that
they were still soaking wet, refused to go back to work.
(Brian Holt did not join in that refusal.) Fairfield, who
was under considerable pressure to get a lot done that
day, lost his temper and angrily ordered an end to the
day's work on the ground that Boyle's and Reners' refus-
al to work precluded further progress.
That evening Fairfield called Quality's president,, Fred
Martin, to say that Boyle and Reners had gotten wet
walking, in the rain to a restaurant and then, after the
rain stopped, refused to climb poles containing-,only a
telephone line because they were wet. Martin told Fair-
field to fire Boyle and Reners. Fairfield did that the next
morning, when Boyle and Reners arrived at work.
Boyle- and Reners visited Martin the following
Monday, July 26. They asked for their jobs back and
said that they had refused to climb because of their con-
cern about the dangers -involved in working on utility
poles while wet. Martin pointed out that the poles on
which they were to work held only telephone lines. The
employees responded by complaining about the fact that
some of the Quality personnel with whom Boyle and
Reners had to work were unfriendly toward them.
(Martin took that as an indication that the two employ-
ees' claims about safety concerns were pretextual.) The
conversation ended when Martin made it clear that he
would not reinstate them. i 1,
4. Conclusion-Boyle's and Reners' Discharge
Boyle and Reners concertedly refused to work. And
Quality fired them because of that refusal. The question
is whether the reason that Boyle and Reners refused to
work was their concern that, because they were wet, the
work they were asked to perform was "physically dan-
gerous" (complaint par. 4(a)).
I conclude that safety considerations were not in fact
the basis of the two employees' refusal to work. I reach
that, conclusion even though it is common knowledge
that it is nearly - always more dangerous to work around
electricity when one is wet than when one is dry (see
Brown & Root, Inc., 246 NLRB 33, 35 (1979), enfd. 634
F.2d 816 (5th Cir. 1981); Myers Industrial Electric, 177
NLRB 817, 818-819 (1969)), and even though it is plain
that both Boyle and Reners worried from time to time
about the electrical hazards associated with their work.
QUALITY C , T,i^. 1287
Most telling is the fact that the utility poles Boyle and
Reners refused to climb held no electric power lines.
The evidence is overwhelming that the poles held only a
telephone line. Boyle and Reners had to have known
that.4 As for any concern about shocks from telephone
lines, both Boyle and Reners testified only about being
worried because of working around electric power lines.
And Boyle knew from personal experience that a tele-
phone line does not present a safety hazard even to wet
linemen.
It is true that had Boyle and Reners complied with
Fairfield's order to resume work, they shortly would
have had to climb poles holding electric power lines. But
I cannot credit the General Counsel's suggestion that the
employees refused to start work (on utility poles holding
only a telephone line) because they knew that they
would subsequently be working on poles holding electric
power lines.
Secondly, the timing of the employees' decision to
refuse to work does not square with their alleged safety
considerations. Boyle and Reners got wet while working
on utility poles in the rain. They were still wet when
they climbed into the cab of the bucket truck. But they
did not discuss refusing to work until the supervisors left
the area and the employees' truck would not start. More-
over, the employees' testimony -particularly Reners'-
made it clear that they considered the most troubling
aspect of the incident to be what they saw as their super-
visors' lack of concern about their comfort.
The only issue litigated in respect to Boyle's and
Reners' discharge was whether they were fired as a
result of their refusing to work because of their concern
about safety conditions.5 Because Boyle's and Reners'
actual reason for refusing to work did not stem from the
employees' safety concerns, I conclude that Quality's dis-
charge of Boyle and Reners has not been shown to be a
violation of the Act.
B. The Alleged Threats and Assault Against Reners
1. Reners' testimony
Boyle and Reners sought help from the Board soon
after Quality fired them. According to Reners, the Board
agent assigned to the case subsequently told Reners that
Quality was prepared to put him back to work and that
he should contact Martin (Quality's president) about it.
He did call Martin, on August 19, 1982, and, again ac-
cording to Reners, Martin did indeed tell Reners that
Quality would give him his job back and that he should
come into the office the next morning.
At that juncture Reners was clear, that he had a job
offer. But the Board agent had told Reners that he was
entitled not only to reinstatement but also to backpay.
Accordingly, when Reners went to Quality's office on
August 20 he was determined to find out what Quality
had to say about his backpay rights. Reners' only oppor-
tunity to talk to Martin occurred when Martin was walk-
4 Reners, but not Boyle, testified that the pole he refused to climb held
an electric power line As indicated above, I do not credit that testimony,
even as a statement of Reners' belief.
5 I accordingly need not consider whether Boyle's and Reners' refusal
to work might, under other theories, be protected activity.
ing through the office on the way out. Reners asked
Martin what the Company had planned about his back-
pay. Martin responded, Reners said, first by saying, "I'll
give you back"pay, you little son-of-a-bitch," and then by
punching Reners in the face. At that point Martin left,
and Quality's vice president, Jerry Alexander (a large,
powerful-looking individual), blocked Reners from the
door and told Reners that if Quality ever did have to re-
instate Reners, the Company would make sure that
Reners' assignment would the most onerous the Compa-
ny could finds
2. The testimony of Quality's witnesses
According to Martin, he never told either any Board
agent or Reners that he was willing to put Reners back
to work. But Martin said that in the course of a tele-
phone conversation with Reners on August 19, he did
tell Reners that he would be willing to talk with him and
Reners could come in the next morning. When Reners,
that next morning, asked for backpay, Martin was in-
credulous because, as far as he was concerned, the Com-
pany had not even agreed to put Reners back to work.
Martin indicated that to Reners. Reners responded, said
Martin, by saying, "I'll see you in court, in-f-," and
then by throwing a punch at Martin. Alexander and
Fairfield were in the office at the time and they both
confirmed Martin's version of the incident.
As for Alexander's alleged threatening of Reners, Al-
exander denied it. (Martin had left the office prior to the
time that, according to Reners, Alexander made the
threats. Fairfield's testimony contains no reference to the
Reners-Alexander encounter.)
3. Conclusion-The alleged assault and threat
Martin never told Reners that he would be put back to
work. All he said to Reners was that Reners could come
into the Company's office to talk about the possibility.
But Reners misunderstood and thought that he had been
offered a job, starting on August 20. The confrontation
between Martin and Reners on August 20 was thus a
classic case of misunderstanding. It is never possible to
determine definitively what happened in an emotion-
filled incident such as the one on August 20. But as I add
up the testimony, Martin was taken aback when Reners
mentioned backpay and responded angrily to that, but
only verbally. Reners, suddenly learning that he was not
even going to get his job back, much less receive back-
pay, also became furious. The situation was thus one in
which two individuals were each surprised and upset at
the response of the other. On top of that, my impression
of both Martin and Reners is that both are quick to take
offense at remarks they consider belittling.
6 Reners filed an assault complaint against Martin, with local authori-
ties That led to the institution of a criminal action against Reners But
the action was later dismissed . By motion to introduce evidence adduced
after close of hearing, dated February 2, 1983, Quality seeks to make part
of the record (1) a motion of the Hamilton County, Indiana , prosecutor's
office seeking to have the Hamilton County Court Court dismiss the
criminal action against Martin that originated with Reners' complaint;
and (2) the court's order of dismissal No one has filed an objection to
Quality's motion and it is granted
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am not going to try to sort out who punched whom
first. No matter who did, Quality did not violate Section
8(a)(4). If Martin did punch Reners, he did so either be-
cause of an epithet shouted at him by Reners, or because
Reners had punched Martin or looked as though he were
going to . Reners' association with the Board had nothing
to do with it.
As for the remarks that Reners attributed to Alexan-
der, Alexander's testimony painted a wholly different
picture, and there was nothing about the demeanor of
either Reners or Alexander or the circumstances sur-
rounding the incident that makes Reners' account more
probable than Alexander's. Because the General Counsel
has the burden of proof, I conclude that the complaint's
allegation of verbal threats by Quality against Reners
should also be dismissed.
[Recommended Order for dismissal omitted from pub-
lication.]