Amco Electric

AMCO ELECTRIC 781 Acting on our own motion, the Board 3 has reexamined its Decision and Order herein, as well as the entire record. While we adhere to our finding that section III of the contract is proscribed by Section 8 (e) of the Act, we have decided to modify the basis for this finding. Since our Decision and Order in the instant matter, we have issued several decisions 4 involving contract clauses similar to section III herein. We held in those cases that insofar as a contract provides that no employee need cross any union authorized picket line, such clauses are violative of Section 8(e) because their "broad scope can be read as applying to unlawful secondary picketing." s Upon reconsideration, we deem it appropriate to conform our holding in the present case with these decisions. Accordingly, we now find section III herein to be an illegal clause to the extent that it applies to unlawful secondary activity. In view of the foregoing, we shall modify the Decision previously issued herein to conform to this Supplemental Decision. In all other respects, the Board's Decision and Order shall remain unchanged. In determining that the Board's Decision shall be modified as set forth herein, we have considered whether or not the Respondent has been prejudiced. Because the Order previously issued herein remains unchanged, we have concluded that no prejudice has resulted. [The Board modified its Decision and Order issued on February 4, 1964.] 3 Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown , and Jenkins]. A See, for example, Cement Masons Local Union No. 97, AFL-CIO (Interstate Em- ployers, Inc.), 149 NLRB 1127; Los Angeles Building it Construction Trades Council, at al (Portofino Marina), 150 NLRB 1590; Los Angeles Building it Construction Trades Council (Couch Electric Company, Inc.), 151 NLRB 413. 5 Ibid. Amco Electric and Donald L. Crowe. Case No. 21-CA-6024. May 24, 1965 DECISION AND ORDER On January 19, 1965, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. There- after, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Respondent filed a brief in opposition to General Counsel's exceptions. 152 NLRB No. 86, 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 [Chairman McCulloch and Members Brown and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner 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 finds merit in the General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings only to- the extent consistent herewith. 1. THE RESPONDENT'S DISCHARGE OF CROWE The Respondent, which is engaged in performing electrical work in connection with missile installations at Vandenberg Air Base, has a collective-bargaining contract with International Brotherhood of Elec- trical Workers, Local 413, AFL-CIO, herein referred to as the union. Crowe, the complainant herein, began working for the Respondent as: an electrician on April 27, 1964. On June 19, while he was working at an underground missile site designated as "Charley" or "C" site, Crowe: went to the surface to obtain some supplies, and observed two iron- workers, who were employed by a different contractor, installing an electric fan. Crowe told them that the work they were performing belonged to the electricians, and asked them to discontinue this work until he could get his union steward to talk to their foremen in order to resolve the jurisdictional dispute. The ironworkers coiup1.ied, and Crowe proceeded to a truck of the Respondent, parked approximately 30 feet away, in order to use its radiotelephone. The Trial Examiner reasoned that the discharge of Crowe, which ensued, was due to his summoning Lowater, a foreman who was also a member of the Union, rather than his union steward, Savage, to the work being done by the ironworkers, and to his effecting a work stop- page. In reaching his conclusion as to the purpose of the call, the Trial Examiner deduced from the testimony of Lowater that Crowe "made no attempt to contact Savage but was interested primarily in having Lowater come immediately to C site to perform the work which the ironworkers were doing." The Trial Examiner found further that Crowe's "testimony that he was interested primarily in having Savage notified of the ironworkers' actions is immaterial if it in fact occurred." The Trial Examiner also relied on the testimony of the Respondent's vice president, Coghlin, who heard Crowe on the radiotelephone and who, in consequence thereof, and after discussion with Conley, the gen- eral foreman, discharged Crowe. AMCO ELECTRIC 783 The Trial Examiner has resolved the contradictions in the relevant testimony not upon the basis of the witnesses' demeanor but upon his not unreasonable evaluation of the conflicting inferences and conclu- sions to be drawn from that testimony. Our analysis of the record leads us to a different, and we believe more tenable, conclusion concern- ing the relevant evidence, however, and we are constrained therefore to substitute our ultimate findings for his for the reasons hereinafter indicated. With regard to Crowe's call, Crowe testified that he made two unsuccessful attempts to reach Savage, his steward, on the radiotele- phone; that he then called Lowater, whose job required him to travel from site to site; and that he requested Lowater to tell Savage that the ironworkers were setting a fan and that Savage should come to "C" site. Lowater's testimony, as set forth in the Trial Examiner's Decision, shows that Lowater, when asked to relate the conversation with Crowe, testified that Crowe asked him if Savage was there; that Lowater, who was approaching site 23, replied that Savage was there; and that Crowe then asked if Lowater- would tell Savage "to come over here to Charley Site. The ironworkers are doing our work or something to this effect." Lowater testified further that he stopped his truck at site 23 and told Savage that Crowe had called and reported that "the ironworkers were doing our work at Charley Site, and he wanted hint over there." There is also testimony by both Savage and Milne, the union representative who was with Savage at the time, that Lowater came to site 23 and told Savage that Crowe had called to report that the ironworkers were setting a fan at "C" site, and that Crowe wanted Savage to come to "C" site.' Although the Trial Examiner set forth this testimony of Lowater, which in our opinion clearly and explicitly affirms Crowe's testimony, he relied in this connection on the Respond- ent's cross-examination of Lowater, which included the following : Q. It is possible he told you to come over to Charley Site? A. It is possible. The record shows that, as Lowater was leaving site 23, Vice Presi- dent Coghlin and General Foreman Conley approached Savage and Milne. As Coghlin testified, he told Savage and Milne that he had heard Crowe on the radio give a direct order to "another foreman on the job to do something," and that Lowater had replied that he would be right over. Coghlin also testified that he discussed Crowe's conduct with Conley, who made the decision to discharge Crowe; Conley did not testify. 'Lowater, who testified without contradiction that he went to "C" site on the prior orders of one of the site superintendents , set the fan in question with the aid of two men men furnished by Cassidy, the "C" site foreman 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Coghlin testified that he referred to Crowe calling Lowater and giving orders to the latter, Savage testified that, when Coghlin arrived at site 23, he jumped out of his car, came over to Sav- age, and asked if Savage had heard Crowe giving orders over the radio for Savage to go to "C" site; and that, after Savage stated that Lowater had already delivered the message for him to go to "C" site, Coghlin replied that Crowe could not give orders, and that he would get Crowe's check. Milne corroborated Savage's testimony as to this conversation. In view of the foregoing, we are convinced, contrary to the Trial /Examiner, that there is no basis for finding that Crowe was giving orders to Lowater, a foreman. Crowe's testimony to the effect that he was merely seeking to convey a message to Savage was corroborated by Lowater, and both Savage and Milne testified that such a message was delivered. On the basis of this evidence which we find inherently cred- ible, we find that Crowe made the telephone calls in an effort to reach Savage, his union steward, to report a jurisdictional dispute; that, when he was unable to reach Savage, he discussed the matter with Lowater in order to have Lowater convey the message to Savage; that Lowater did convey the message to Savage; and that Coghlin knew that Crowe was attempting to reach Savage. We likewise disagree with the Trial Examiner's finding that Crowe's causing of a work stoppage was an operative factor in his discharge. The Trial Examiner's Decision finds that Coghlin, when he was at site 23, expressed indignation stemming not only from Crowe's giving orders to Lowater, but also from Crowe's effecting a work stoppage by the ironworkers, and states that the testimony of Milne, Savage, Lowater, and Cassidy, the "C" site foreman, corroborates this testi- mony. None of these four witnesses, however, testified that Coghlin had expressed indignation over Crowe causing a work stoppage by the ironworkers. Moreover, the Respondent, in its answer to the com- plaint, made no mention of such a work stoppage, and there is nothing in the record to indicate that effecting a work stoppage was the reason for Crowe's discharge, or that Coghlin or Conley had any knowledge, when they decided to discharge Crowe, apparently within minutes after they overheard his call, that he had caused a work stoppage. Finally, we find no merit in the Trial Examiner's conclusion that Crowe's conduct was violative of the terms of the collective-bargaining agreement covering the Respondent's employees. The Trial Examiner points to the provision that grievances are to be adjusted by the duly authorized representatives of both parties to the agreement. As found above, however, we are satisfied that Crowe was seeking to call a juris- dictional conflict to the attention of the duly authorized union repre- sentative, not to adjust the grievance. The Trial Examiner also points to a provision that "workers are not to take directions or orders from AMCO ELECTRIC 785 anyone except the foreman." There would be no violation of this pro- vision by Crowe, even if, as the Trial Examiner concluded, Crowe, an employee, was giving directions or orders to Lowater, a foreman. It is apparent from the foregoing that Crowe was not discharged because his conduct was violative of the collective-bargaining agree- ment, nor because he had caused a work stoppage by the ironworkers. Rather, the sole reason for his discharge was his conduct in trying to communicate during working hours with his steward, who was at a different worksite. Crowe, however, was trying to notify his steward that ironworkers were setting an electric fan, thereby creating a juris- dictional dispute. It was entirely reasonable for Crowe, an electrical worker and a member of the Union which represented the electrical workers, to be concerned about an infringement on the work jurisdic- tion of the Union, and to report the matter to his steward. We note also that Crowe, when he made his calls, was properly away from his work station in order to get materials and was close to the radiotelephone. In view of the impact of this jurisdictional conflict on the work to be performed by Crowe and his fellow employees, we find that Crowe, in attempting in the manner and under the circumstances herein to reach his steward, was engaging in a union or protected concerted activity. His discharge for such conduct was, therefore, violative of Section 8(a) (3) and (1) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations described in section I of the Trial Examin- er's Decision, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. III. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the purposes of the Act. Having found that the Respondent on June 19, 1964, unlawfully discharged Donald L. Crowe for engaging in union or concerted activi- ties, we shall order that the respondent offer him immediate and full reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and ma he him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to the amount he would have earned from the date of the 789-730-66-vol. 152-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge to the date of the offer of reinstatement,2 less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB 716. We shall also order that the Respondent preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records and reports, timecards, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 413, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging Donald L. Crowe on June 19, 1964 , because of his union or concerted activities , the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act. 4. The aforementioned unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Amco Electric, Altadena, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from discharging any of its employees because of their union or concerted activities, or in any other manner inter- fering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Offer to Donald L. Crowe immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for 2 See A.P.W. Products Co, Inc, 137 NLRB 25. AMCO ELECTRIC 787 any loss of earnings he may have suffered as a result of the discrimina- tion against him in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, timecards, and all other records neces- sary to analyze the amount of backpay due to said employee. (d) Post at its operations at the Vandenberg Air Base, California, and at its headquarters at Altadena, California, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discharge any of our employees because of their union or concerted activities, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Donald L. Crowe immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings lie may have suffered by reason of the discrimination against him. A3ico ELECTRIC, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive clays from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, The Eastern Columbia Building, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any ques- tion concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issue framed by the pleadings in this case presents a question as to whether Donald Crowe was discharged by Respondent because of his union activities, thereby violating Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act, or because he violated work-rule provisions of the collective- bargaining contract covering employees, including Crowe 1 A hearing in this matter was held before Trial Examiner Eugene K. Kennedy in Santa Maria, California, near Vandenberg Air Force Base, the site of the dispute. Upon consideration of the entire record, the demeanor of the witnesses, and briefs filed by the General Counsel and Respondent, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE JURISDICTION OF THE BOARD Amco Electric, herein designated sometimes as Respondent , is a California cor- poration with its main office located in Altadena , California. During the past year Respondent has performed services in excess of $50,000 in States other than the State of California . During the same period , Respondent furnished services to other employers valued in excess of $50,000, having a substan- tial impact on the national defense. Respondent was engaged in performing elec- trical work in connection with the missile installations at Vandenberg Air Force Base, California. It is found that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of the Act 'The complaint in this matter was issued on August 12, 1964, based on a charge filed June 22 , 1964, by Donald Crowe, the Charging Party 2 This findine is based upon a stipulation of the pasties .AMCO ELECTRIC II. THE LABOR ORGANIZATION INVOLVED 789 International Brotherhood of Electrical Workers, Local 413, AFL-CIO, herein called the Union, is and has been at all times material a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Donald Crowe, the Charging Party and the alleged discriminates, commenced work- ing for Respondent as an electrician on April 27, 1964. After about a month's employment, Crowe and four other employees quit their jobs one evening to protest the reclassification of a fellow employee by Respondent. Crowe testified that this employee was fired and that was the reason for the protest, but the testimony of Union Business Agent Milne, a witness for the General Counsel, correctly estab- lishes that the employee involved was reclassified from a welder to an electrician and was not fired by Respondent. Through the intercession of Business Representative Milne, the men, including Crowe, were permitted to return to work on the following morning. Approximately a week after this, Crowe and the other four employees who were protesting the reclassification were informed by Respondent that they were going to be laid off. The reason ascribed to them was because they had quit on the previous week .8 On June 19, 1964, Crowe was discharged. The circumstances attending his dis- charge will be noted in some detail below. After his discharge, Crowe filed a griev- ance with the Union. Union Representative Milne testified that he held a conference with representatives of Respondent to the end of having Crowe reinstated and also that Crowe's reinstatement was a subject of discussion in a joint employee-employer committee as provided by the collective-bargaining agreement. This latter meeting was inconclusive and, as far as this record goes, further processing of the grievance was abandoned by the Union. On June 19, 1964, Crowe was working in an underground missile site designated as "C" (or Charley) site. Crowe left his work about 10 a.m. and went to the surface level to obtain materials which were stored in a surface structure. En route, he observed two individuals, characterized by him as ironworkers, installing some electrical fans. Crowe approached these individuals and advised them that the work that they were performing belonged to the electricians. He suggested that they cease working until he could get his union steward to talk to the ironworkers' foreman in order to resolve the jurisdiction at question. The two ironworkers. ceased work and Crowe proceeded to a truck parked in the vicinity in order to. use a radiotelephone. Respondent had radiophones in most of its vehicles. Ini his testimony, Crowe claimed that he first attempted to contact the union steward, Wilbur Savage. The verbatim excerpt from Lowater's testimony set forth below suggests that Crowe made no attempt to contact Savage but was interested primarily in having Lowater come immediately to "C" site to perform the work which the ironworkers were doing. Crowe's claim that he attempted to contact Savage first is rejected as being not worthy of credence. The testimony of Lowater reflects that Crowe, in fact, did instruct or request him to come immediately to "C" site. The record is devoid of any action by Savage at "C" site and this fact ]ends support to the proposition that Crowe was interested only in having Lowater, rather than Savage, come there and his testimony that he was interested primarily in having Savage notified of the ironworkers' actions is immaterial if it in fact occurred. Crowe did not work under the supervision of Lowater, but under the supervision of Foreman Raymond Cassidy. He was successful in making contact with Frank Lowater, on the radiotelephone, who was approximately 18 miles away at another site. The principal question presented hinges on the contents of Crowe's radio com- munication with Lowater Provisions of the collective-bargaining agreement pertinent to this inquiry are set out: ARTICLE I Section 5. In the event of a dispute or where trouble arises on any job where workmen are employed under the terms of this Agreement, they shall remain on the job at work. All grievances or questions in dispute sehall be adjusted by the duly authorized representatives of both parties to this Agreement.... s The concerted quitting of Crowe and the other employees is not an issue with respect to the violation of the no-strike provision in the collective-bargaining agreement. How- ever, the General Counsel relies on this episode to establish unlawful intent In connec- tion with the termination of Crowe a few weeks later. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE 1111 Section 10. No Foreman of one job shall at the same time perform work or supervise work on another job.... Section 11. On jobs having a Foreman, workmen are not to take directions or orders or accept the layout of any job from anyone except the Foreman. This does not deny the Employer or his representative the right to give directions, orders, or layout through the proper channels. Crowe was familiar with the union rules which in substance paralleled the above quotations of the collective-bargaining agreement in effect between Respondent and the Union. It is clear Crowe was in violation not only of the union rules, but of the collective-bargaining agreement if he asked the ironworkers to cease work and to instruct or request Lowater to come to "C" site. As indicated herein, Crowe was in violation of the collective-bargaining agreement in both respects. In substance, Crowe's claim is that he merely asked Lowater to relay a message to the union steward, Savage, and then returned to work underground. The mes- sage to be relayed concerned the ironworkers doing work claimed by the electricians and a request that Savage be notified of this by Lowater. Approximately 30 to 45 minutes after the call, Lowater visited Crowe at his working location at "C" site. Lowater told Crowe in effect that he had been fired by informing him that his check had been made out. Lowater had heard of this development by radio en route to "C" site from the location where Crowe had contacted him by radio. In answer to a question by Crowe as to the reason for his discharge, Lowater told him the reason for being fired was because he had used a truck radio to call the steward.4 Crowe testified Lowater was 3 to 5 miles away when called by radio. Coghlin, the vice president and general superintendent, who was present on the day of Crowe's discharge, testified that Lowater was about 18 miles from Crowe when he heard the radio call to Lowater. Coghlin talked to Lowater after the call and, being in the same vicinity as Lowater, was in a better position to approximate the distance to "C" site. Since the record establishes Lowater left immediately to go to "C" site where Crowe was working and saw Crowe there about 30 to 45 minutes later, it is apparent that 18 miles is a closer approximation of the distance separating Crowe and Lowater at the time of the radio conversation under consideration. The irresponsible nature of Crowe's testimony is further reflected by his statements that the two ironworkers he asked to cease working were only away from the job about 5 or 10 minutes. When pressed for the basis of his knowledge, he conceded he only assumed this. Actually, the ironworkers were still not working when Lowater arrived 30 to 45 minutes later and never did return to work upon the location they left after being addressed by Crowe on this subject. The General Counsel called four additional witnesses to support Crowe's version of the events. These were Union Steward Wilbur Savage, Foreman Raymond Cassidy, Foreman Frank Lowater, and Union Representative David Milne. Steward Savage was with Milne, the business representative, at a location on Vandenberg called "site 23" on June 19 about 10 a.m. They were there in connection with a jurisdictional dispute involving the electricians and the ironworkers. This dispute did not involve the issues presented by the case at hand. Verbatim testimony of Savage of relevance is as follows: Well, Mr. Lowater drove up and said Don Crowe had called him and wanted me over at Site C; the ironworkers were going to set a fan. About that time Mr. Coghlin and Mr. Conley drove up, and Coghlin jumped out of the car and said, "Did you hear that conversation on the radio')" "I said, "No, why?" He said Crowe was giving orders over the radio for me to get over to Site C. And I said, "I didn't hear it, because the radio was off." I said Mr. Lowater- Mr. Lowater had already informed me they wanted me over there. Mr. Coghlin said, "Who does he think he is, the foreman? He can't give orders around here. I will get his check." 4 Respondent conceded that prior to June 19, 1964, there was no rule against employees using the radio. The record here is consistent to the effect that at the time of Crowe's discharge and in the answer filed by Respondent, Respondent was objecting to Crowe acting like a foreman and giving instructions and not to his use of the radio. Respond- ent's institution of a rule after June 19 against the indiscriminate use of the radiophone would be consistent with the aim to prevent further events, as the one here, where at the behest of Crowe, Lowater drove about 18 miles to perform work which Crowe had caused the ironworker employees to abandon. AMCO ELECTRIC 791 Although Cassidy, Crowe's foreman, did not hear the questioned radio communica- tion, his testimony is considerably more consistent with Respondent's position than Crowe's. He testified it was common for workers to look for him at the jobsite in connection with reading blueprints or obtaining materials. That Crowe did not seek him out on the day of the radio call to Lowater makes plausible the indignation reflected by Vice President Coghlin and which was corroborated by the testimony of Milne, Savage, and Lowater as well as Cassidy. They all testified that Coghlin expressed indignation stemming from Crowe's giving orders to Lowater to drive some 18 miles as well as taking on himself the effecting of a work stoppage by the ironworkers. Savage, Milne, and Lowater heard Coghlin express his indignation immediately after Crowe had the radio conversation with Lowater. All three testified that Coghlin at this time was angry because of Crowe's giving orders and acting as though he were the foreman. Foreman Cassidy shortly afterwards was asked by Coghlin by radio communication whether Cassidy was running "C" site or whether Crowe was. Lowater testified that in the radio communication Crowe asked him whether Steward Savage was in Lowater's vicinity and Lowater replied that he was on the site. A verbatim extract of Lowater's testimony suggests that Crowe, in fact, had given directions for Lowater to go immediately to "C" site. Q. Would you relate that conversation; what he said to you; and what you said to him? A. As I recall, he told me-he asked me if Doc Savage was there. And I says, "He is here on the site." Now I was appioaching Site 23. I was at Site 23. He said, "Would you tell him to come over here to Charley Site. The iron- workers are doing our work," or something to this effect. Q. Did you say anything to him? A. I said, "10-4, I would be right over." Q. Excuse me? A. I said that I would be right over. I said I acknowledged his call and said I would be right over. Q. Did you have any conversation with Savage at Site 23? A. Yes, I stopped the truck and told him about it. Q. What did you tell Mr. Savage? A. I told him that Donald Crowe had called me and that the ironworkers were doing our work-told me the ironworkers were doing our work at Charley Site, and he wanted him over there. Q. What did Savage say, do you recall? A. I don't recall exactly at the time what he said. Q. What did you do then? A. Then I left Site 23 and headed for Charley Site. Q. What did you do when you got to Charley Site? A. I got out of the truck and looked for Ray Cassidy, the foreman. I wanted to borrow a couple of men from him, as is customary, to set the fans down in the control centers. Q. A. Q. Did you get these men? Yes. And what did you do when you got the men? Did you set these fans? A. Yes, we set the fans down in the control center. Q. Did anyone else tell you to go to Site C to straighten out this dispute, this ironworkers' problem? A. No, I had a call that morning to hook up a welding machine and a fan or a blower. I don't recall which. The site superintendent for Allied Shafer had called me. I take the order from those people primarily. Q. And you didn't go to Site C because of Crowe? You went there because of your prior orders? A. Right. Mr. SADUR: I have no further questions. CROSS-EXAMINATION Q. (By Mr. MILLIKAN) You indicated a moment ago that when you heard the conversation or when you had the call from Crowe that Crowe had asked about Doc Savage? A. Yes. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And you said in response to that, "I will be right over"? And then you said, "10-4"? Is the 10-4 the sign-off? A. Right. It is an acknowledgement that you understand the message. Q. Right. Now when you said, "I will be right over," is it possible that during the conversation that you were having with Crowe on the radio that he asked you to come over? A. To Charley Site? Q. Right. A. Yes. Q. It is possible he told you to come over to Charley Site? A. It is possible. Q So the conversation , as far as you can recall it , could have been including both a request to find Doc Savage and ask him to come over to Charley Site and also a request for you to come over to Charley Site? A. Right. As these people need a maintenance electrician they call me by radio. I don't question who or to what effect. I just go over to the site. I don't ask them whether they demand me over there or request me. Q. Shortly after you had this conversation with Crowe on the radio you did see Norm Coghlin? A. Right. Q. And he did , to your knowledge, say something like, "Is it customary for journeymen to give directions?" Is that right? A. Yes, he was speaking this to Mr . Milne and Mr. Savage. Whether or not Lowater went immediately to Charley site as a result of Crowe's call is not an essential finding to establish Crowe gave orders in violation of the collective-bargaining agreement . It was the mere giving of orders or an unauthorized request by an employee to a foreman to travel some 18 miles which Respondent regards as a valid cause for the discharge of Crowe. Lowater's response stating he would be right over and the fact of immediately going would reasonably reflect to Respondent that at the very least the advent of Lowater at Charley site was in some measure precipitated by Crowe's radiotelephone call. Coghlin's statements to the four witnesses of General Counsel , practically con- temporaneous with Crowe 's call, supports the credibility of his testimony that Crowe, in fact, had given instructions to Lowater. This is in the nature of res gestae evi- dence. In the context of the events here presented , it is considered quite trust- worthy evidence and is credited over that of Crowe with respect to the content of his disputed radiophone call to Lowater. Concluding Findings The provisions of the collective -bargaining agreement set forth above include a provision reading in part "All grievances or questions in dispute shall be adjusted by the duly authorized representative of both parties to this agreement ." The agree- ment also provides that workers are not to take orders from anyone but a foreman. The action of Crowe in obtaining a cessation of work by the ironworkers, even prior to his call to Lowater, is in deieliction of the contractual strictures on a workman adjusting a grievance . Giving orders to Lowater . a designated foreman (although apparently in the bargaining unit covered by the collective agreement ), is violative of that portion of the collective -bargaining agreement which specifies that employees are only to take orders from their own foreman. In his testimony , Coghlin, Respondent's vice president and general superintendent, not unreasonably projected a chaotic condition if many employees would perform as did Crowe in effecting a work stoppage by the ironworkers and summoning a fore- man to the work being done by the ironworkers . In these circumstances the only pertinent inquiry is whether Crowe was fired for valid reasons or whether General Counsel has established Crowe was discharged for union activities , thereby suffering unlawful discrimination . It is found that the evidence presented by the General Counsel falls short of establishing unlawful discrimination by an adequate measure of proof.5 CONCLUSIONS OF LAW 1. Respondent is a corporation engaged in commerce and in a business affecting commerce within the meaning of the Act. 5 In view of this finding It is unnecessary to reach the question as to whether Crowe's action was In fact concerted activity as contemplated by the Act. VICKERS INCORPORATED, ETC. 793 2. The Union is a labor organization within the meaning of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is recommended that the complaint be dismissed in its entirety. Vickers Incorporated, a Division of the Sperry Rand Corporation and Local 677, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner and International Association of Machinists , Lodge 1335, AFL-CIO. Case No. 1-RC-7841. May 24,1965 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on May 5, 1964, under the direc- tion and supervision of the Regional Director for Region 1, among the employees in the agreed-upon unit. After the election, the parties were furnished a tally of ballots which showed that of approximately 426 eligible voters, 410 cast ballots, of which 166 were for the Petitioner, 236 were for the Intervenor, 5 were against the participating labor organizations, 1 was challenged, and 2 were void. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the objections and on June 9, 1961, issued his report on objections, finding no merit in said objections and recommending that they be overruled in their entirety. Thereafter, Petitioner filed exceptions to the Regional Director's report. On July 16, 1954, the Regional Director issued a supplemental report on objections, to which the Petitioner likewise took exception. Thereafter, pursuant to an order of the Board, a hearing was held before Hearing Officer David B. Ellis. All parties participated and were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Hear- ing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On December 9, 1964, the Hearing Officer issued his report, recom- mending that certain of Petitioner's objections be sustained, that others be overruled, and that a second election be directed. The Employer, Petitioner, and Intervenor filed timely exceptions to the Hearing Offi- cer's report and each filed a supporting brief. 152 NLRB No. 84.