Davis Electrical Constructors, Inc.

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis Electrical Constructors, Inc. and David Clark. Case 16-CA-5500 January 7, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 30, 1974, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief , and the Respon- dent filed a brief in support of the 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 authority in this proceeding to a three -member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the amended complaint herein be, and it hereby is, dismissed in its entirety. 1 In adopting the Administrative Law Judge's conclusion that Respon- dent did not violate the Act, we do not draw adverse inferences as he did from the failure of the complaint to allege that Olson, a supervisor, was also unlawfully discharged and from the fact that the General Counsel did not produce Olson, whose whereabouts are unknown, as a witness. DECISION STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice to all parties on June 11 and 12, 1974, at Big Spring, Texas, with General Counsel and Respondent appearing by counsel , and the Charging Party, David Clark, appearing in person, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues are whether or not Respondent, Davis Electrical Constructors , Inc., violated Section 8(aXI) of the Act by a threat to discharge, and actual discharge, of employees for exercise of their rights to engage in concerted activity for purposes of collective bargaining and exercise of other rights guaranteed to them by Section 7 of the Act.' 1 The issues arise on a complaint issued May 14, 1974, by the Regional Director for Region 16, and amended at the trial, after Board investigation of charges filed by Clark on March 20 and April 19, 1974, and answer of At close of the testimony all parties waived oral argument, but written briefs duly filed by General Counsel and Respondent have been carefully considered by me in preparation of this Decision which was signed and released by me on August 30, 1974, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and consideration of arguments of the parties, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent is a South Carolina corporation engaged in commercial electrical construction work in various States, with its principal office and place of business located in Greenville, South Carolina. At all material times herein Respondent had been doing electrical construction work on a jobsite in Big Spring, Texas, the only site involved in this case. In the 12 months prior to issuance of the complaint, Respondent in course of its operations has performed services valued over $50,000 in States other than South Carolina. Respondent admits, and I find, that it is and has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE ALLEGED UNFAIR LABOR PRACTICES 2 A. The Sequence of Events Since August 1973, Respondent has been performing electrical work as subcontractor on a community hospital construction project in Big Spring. William L. Curtis was its superintendent, Layne Simpson project manager, and Bill Rowe the foreman on the job . All three are supervisors within the meaning of Section 2 (11) of the Act. Robert K. Smith, an electrician employed by Respon- dent on various projects in various States for about 5 years before 1973, was transferred by Respondent at his request to the Big Spring project in December 1973, for reasons of health. He worked as journeyman electrician there until his discharge on March 12, 1974. David Clark, who had been working as electrician's helper on a Tennessee job of Respondent since May 1973, accepted an offer by Simpson to do office and clerical work at Big Spring, and reported there December 20, 1973. In the office he worked closely with and under Curtis, handling payroll, inventory, purchasing of supplies, and expediting of deliveries and all paperwork, until his . discharge on March 12 , 1974. He never did any electrician's work on that job. When both men reported for work, Respondent was not yet doing substantial electrical installation because the blueprints for that work were not made available until January 1974. In the interim Curtis kept a small crew of about six men busy at make-work such as building material and supply sheds, installing temporary power wiring, prefabricating parts, and other odd jobs. However, in December 1973 and January 1974, lack of blueprints as Respondent denying the commission of any unfair labor practices. 2 All dates stated in this Decision are in 1974, unless otherwise noted. 216 NLRB No. 21 DAVIS ELECTRICAL CONTRACTORS, INC. well as intermittent bad weather, which at times caused the whole project to shut down, often kept the electricians from working a full week; in bad weather Curtis often let his men work short hours or stay at home, if they felt they could not endure the elements; at other times they had to go home when the project superintendent shut the whole job down. For these reasons Respondent's crew often finished portions of their work before other crafts were ready to begin coordinated work in their lines, so that the electricians at times were idle while waiting for other crafts to catch up. Starting in January, Smith began to slow down his own work, often doing no work for substantial periods while talking to other workers and urging them to slow down their work. However, he made no suggestions for slow- down of the work or stretch-out of the work periods to management other than to Foreman Olson, for whom he worked only a few days. Olson apparently did not pass along these suggestions to Curtis, except as noted hereafter. Some employees complained to Foreman Rowe about Smith's failure to work, saying they did not like to work with him. His malingering, and their complaints to the foreman about him, became more frequent after Smith tried to quit in February as found below. From January onward, Curtis began to notice Smith's idleness for extended periods, and his frequent discussions with other employees who likewise did no work during such conversa- tions. Curtis received complaints from Foreman Olson that Smith would refuse to obey work orders, and often disappeared from the worksite for substantial periods. Curtis talked to Smith privately about this, reminding him that he was hired as one of the first journeymen on the job, he was being considered for a foreman's job, and he "should not let yourself, your family or me down." When Curtis told him of Olson's complaints, Smith angrily replied "F- that damn Yankee." This attitude became known to other workers, including Clark, and some crewmen resented Smith's apparent bigotry. When Curtis learned of this, he transferred Smith to a crew working under Foreman Bill Rowe. In February Curtis got complaints from Rowe's crew that they did not like to work with Smith, as he was continually slowing down his work and talking to them, which hindered their work. At least once Rowe reprimanded Smith for this conduct, and reported to Curtis that he could get Smith to work only by "standing right over him." Curtis talked to Smith about these complaints, saying his work was "dropping off" and he seemed to be losing interest in the job, and his work would have to improve. Late in February when Rowe warned Smith he might be fired because of other employees' complaints, Smith angrily came to Curtis on a Friday and said he was quitting because other workers were talking about him. Just before this talk, Smith met Simpson on the job and said he was quitting because, referring to Curtis, "it did not seem like we were hitting it off too well," and he asked Simpson for a transfer. Simpson replied the quitting was a mistake, and while he did not interfere between his supervisors and their men, he 3 In this period, and as late as a week before his discharge, Smith complained several other times to Simpson that he was unhappy on this job, and wanted to leave. Simpson apparently talked him out of leaving. In this 103 would talk to Curtis, and Smith should call Simpson at Nashville on Monday.3 When Smith told Curtis he was quitting, Curtis told him to leave his tools on the job, and go home to think it over on the weekend, as local jobs were hard to find, and then talk to Curtis later. Smith picked up his tools and walked out, saying, "Hell, I am gone" However, he returned to work Monday without having called Simpson, and nothing was said by Curtis about his quit or prior conduct. However, Smith's work performance did not improve, and Curtis several times commented to Clark during February that Smith was not doing his job. Rowe continued to complain about Smith, and Clark told Smith about the complaints from Rowe and Curtis. In February Curtis began to get reports from the foremen and employees that in his continual talks with workers Smith was repeatedly suggesting that they slow down their work. Curtis asked Clark, who he knew was quite friendly with Smith, to talk to the latter about stopping the talk and improving his own work output, as he felt that Clark might have more influence with Smith than Curtis, and Curtis wanted to keep Smith at work because of the scarcity of able electricians. He also told Clark to tell Smith that if his work fell off, he and Curtis might both lose their jobs. Clark told Smith that Curtis had said he was not doing as well in his work as he should, but apparently did not pass on the warning of job loss. Clark had also talked to one foreman who said he had had a complaint about Smith, and also learned from some workers that they thought Smith was not doing as much work as he could. These warnings to Smith did not succeed, for his work did not improve, he continued to talk more than work. Early in March Curtis again asked Clark to talk to Smith, but Clark this time got angry, refused and retorted that Smith did as good a work as any man. Curtis replied that Clark had no way of knowing this, as he worked only in the office, and Curtis said he had to believe contrary reports from his foremen. On this occasion, Curtis also told Clark that if neither he nor Curtis could persuade Smith to do his job, Curtis would have to fire him. Apparently, Clark did not relay this warning to Smith. During the workday on Friday, March 8, Curtis called Smith to the office and reminded him that he was not producing, was also preaching a slowdown to other employees, and warned him that if that continued "they will get rid of me and you, as we all have to work." He also told Smith to "keep your nose out of the business between me and Clark," and to think about his family, and mind his own affairs, after Smith admitted telling other workers that Curtis had fired Smith, as noted below. About 2:30 a.m. on March 8, Curtis woke Clark with a telephone call, saying he was at the shop, that only six men had attended the project training school the evening before, and that he was upset about it, and had decided to give a test. He told Clark he ought to come to the school and study, because other employees including apprentices were getting their journeyman's license. Clark, rather angry, replied "to hell with the school, I do not have to period, and when he actually asked for a transfer, Stith knew Respondent was running another job in Piano, Texas. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attend it." Curtis admitted this, said he was only trying to persuade him to attend. Clark then called Curtis an obscene name and hung up. Curtis called back shortly, asking Clark if he knew who he was talking to and what he had called Curtis. Clark replied: "Yes, you crazy s-o-b." Curtis said, "Well, just don't bother coming in this morning," to which Clark replied, "That's fine," and hung up. When Smith came by to drive Clark to work as usual, Clark told him he would not go to work, relating his talks with Curtis. About 9 a.m. Clark called Project Manager Simpson at Nashville and told him what occurred. He also mentioned reports he had received that morning about alleged belligerent attitude of Curtis and the presence of police in the office and said he decided to let Curtis "cool off" and would go to work on Monday.4 Simpson replied that Curtis did not really mean what he said, and that Simpson would talk to Curtis. Clark then told him "there were some other things," which he said he could not explain on the telephone but would put in a letter to Simpson. Later that day Simpson called Curtis, told him about Clark's call, and his conversation with Curtis in the early hours about attending the training school, and asked what Clark was upset about. Curtis said he really did not know. Simpson said he would come to Big Spring in a few days to discuss Clark's complaints. Clark spent Friday, Saturday, and Sunday composing and revising a long letter of complaint to Simpson, describing it as an "indictment" against Curtis regarding conditions and problems on the job, and at end summa- rized his charges against Curtis thus: (a) General "irre- sponsibility," (b) working the crew "out of work" more than once, (c) causing hard feelings among the crew, (d) "belittling" workers behind their backs , (e) engaging in public acts of violence, threatening such acts, and encouraging "others" to act violently, (f) demanding "extra-curricular performance" from employees without official sanction, and (g) acting "publicly as to possibly bring disfavor" on Respondent and its employees .5 In preparing this document, Clark solicited and secured advice and suggestions from employees Smith and Cedric Rue and Foreman Olson. On Sunday, Olson, Smith, and Rue signed a statement at the bottom of the last page of the letter, under Clark's signature, attesting to the truth of the statements in it. Although he had first decided to stay away from the office Friday, later that day Clark went in to make sure the payroll was being prepared and mailed out as usual. He found Curtis working on it, but when he came in Curtis turned it over to him to complete, which he did, and then took it to the post office to mail to the home office as usual. I Clark testified that early on Friday he received telephone reports from Smith and Olson that Curtis had been in a belligerent mood while talking to three other employees before work that morning , that he had a broken pool cue in his office at the time , and Olson told Clark police had been called in to "keep Curtis from going too far when he started beating on us " The events of that morning and the credibility of these reports will be discussed below S Clark based his charges about working conditions upon complaints he heard from Smith and other workers about lack of protection on the job for the crew during bad weather, alleged pressure by Curtis to make the employees finish portions of their work ahead of schedule so that they often They had no discussion about prior events, only about the payroll. On Monday, March 11, Clark went to work as usual, did his work and dealt with Curtis in normal fashion. There was no discussion between the two about the events of Friday. As Clark felt "things were going smooth, were all right now" between the two, he did nothing about the complaint letter until about 10 a.m., when he made a Xerox copy of it, and mailed the original to Simpson on his usual trip to the post office before noon. Simpson received the letter in Nashville on March 13. That morning the whole crew including Smith was working under some pressure to mount panels and install electric ducts in a ditch under the ground floor, because concrete trucks were due in that day to pour concrete on the floor. Even Foreman Rowe was helping with the installations to get the work finished quickly. Notwith- standing the urgency, Smith and a helper deliberately took several smoking breaks during the day, while the rest of the crew worked. Smith deliberately smoked in hiding behind a wall, because he knew that if Curtis saw them smoking he would order them back on the job. On this date Smith also talked to several helpers including Rue, suggesting they slow down or they would "work yourselves out of a job." At this time, Respondent had apparently had final blueprints in hand for almost a month, its crews were working a full week, and the amount of work had required expansion of the work force to about 14 men. During that morning, Curtis saw Smith leave the work area to visit a restroom at the far side of the project site, where he remained about 15 minutes and then emerged to go elsewhere but did not go back to work. On inquiry from Curtis, other employees did not know where Smith went. After lunch Curtis remarked to Clark that Smith was getting worse and worse, and he thought he would have to let Smith go. Clark became angry and retorted that Smith did a good job. About 3 p.m., Clark suddenly asked Curtis in the office what he intended to do about this "pool cue." Curtis did not reply. He then asked why police had been called to the office on March 8. Curtis said they were not there on his account, but had been called to investigate a missing calculating machine. Clark retorted that he was not a "spy," which he said Curtis had accused him of, that he did not do anything "behind your back." He then threw a copy of the complaint letter on Curtis' desk, saying he had sent it to Simpson, that the copy was "kind of sketchy" but it would give Curtis a general idea of what he sent to Simpson. Curtis glanced over it, noting the summary of charges against him at the end and also that the copy indicated it was signed only by Clark.6 He told Clark "This is a mistake, it looks like you are trying to get me a raise, as were "out of work" and did not receive 40 hours of work with pay therefor, Curtis' failure to arrange overtime work for them so they could make up for straight time hours lost, and alleged remarks by Curtis which caused dissension among the crew and tended to lead to possible violence, all of which caused some workers to talk about quitting to earn more pay elsewhere. 6 When Clark duplicated the letter, the machine did not print part of the wording on the sides of several pages, nor any of the attesting statements with signatures of Smith, Rue, and Olson under Clark 's signature, on the last page DAVIS ELECTRICAL CONTRACTORS, INC. 105 a result of this one of us will be leaving, but it will not be me." Clark said he agreed with the last remark. Curtis then left for _a meeting with the general contractor's project superintendent, Carl Grubb. On showing him the letter, Grubb commented that this had happened to him a dozen times, and Curtis should not worry about it. On Tuesday, March 12, Clark and Smith came to work together as usual. While Clark punched both in on the timeclock, Smith entered the office, where Curtis told him that he had talked to him about his conduct before, that Smith not only did not work himself, but kept other employees from working, so Curtis had to let him go. Smith started to walk out with his tools, and told Clark as he came in that he had been fired. When Clark entered the office, Curtis asked him whether he "agreed with" the statements in his letter about Curtis working the men "out of work" so that they only got part-time work, whether he thought Curtis should slow down the work and give the men more "time" and pay them for not working. Clark argued that he should, saying he had signed the letter, and that the work was behind schedule anyway. Curtis retorted that he would lose his job if he did a thing like that. He then told Clark that if he agreed with what he put in the letter "about slowdown tactics," "either you or I will have to go, you forced it on me, I cannot have an assistant in the office working against me, who handles payroll and time records," and that Clark should gather his belongings and go, he was fired. Clark said he had written to Simpson, and Curtis could not fire him. Curtis said he could and told him to leave with Smith, that he could not condone slowdown tactics of any kind. While this discussion was going on, Olson came in with Smith, and Curtis asked him if he, as foreman, agreed with Clark that the job should be slowed down, just to "make time" for the men, commenting that this was the same as stealing from Respondent. Olson replied "we ought to do something, we are ahead of schedule, so give the men the time." Curtis replied that he could not do that, it was "stealing," that "if that is your attitude, and you are my foreman, you can just go along with Smith." Olson said that he would, and the three men left the office. Clark and Smith decided outside the office that they should get termination slips, so they returned with Olson and the three angrily demanded slips with the reason for termination stated on them. Curtis said he would prepare them later, but they demanded them at once. Curtis prepared Clark's slip, leaving the reason blank. Clark said he wanted that filled in. Curtis then wrote in "insubordina- tion ." Clark asked what that meant, and Curtis shook the rolled-up copy of the complaint letter and replied, "This letter." When Curtis wrote out Smith's slip, he filled in "insubordination," when Smith demanded a reason. Smith denied he was insubordinate. Curtis asked him what he would call it when he told other workers to slow down. Smith argued that word meant talking back to the boss, refusing to work on the job, or beating up the boss. Curtis replied "I would not say you were insubordinate to me, but you are fired anyhow, what do you want put down?" Smith said, "Fired." Curtis then tore up the slip, sat for a moment, and then said to the three, "Everybody needs to cool off for a moment." After a few moments of silence, he asked Smith, "If I came on your job and deliberately told the men to slow down and not work, what would you put on my termination slip." Smith replied, "Just say terminat- ed." Curtis replied, "Well, in your case maybe insubordina- tion is not right." He then turned to Olson and said that he was the foreman, and required to see that the work was done, but "you come in here and tell me you agree with the slowdown tactics in this letter, so your reason should be insubordination, should it not?" Olson replied, "If that is what you want to put down, put it in." Curtis wrote that on his slip. During this discussion, employee Cedric Rue walked in and asked Curtis if he was firing those who signed the letter. Curtis said he was. Rue said he had signed it, too. Curtis asked why, and Rue said it was because of the ironworker incident stated in it, not the other complaints.? Curtis replied "come in and have a seat, you are fired, too." Rue sat down. Curtis then said to the four men "This is all a bunch of -, we all need to work, you all get your tools and go back to work and do your jobs right, and let us forget the whole mess." Smith and Clark said they had already made other plans. Curtis repeated that this was a mess, they knew he needed men, so if they went back to work, he would be "man enough to forget all this, you forget it, and we will all go back to work and do our jobs." No one replied except Rue who said he would work, as he needed the money. Curtis then finished filling out termination slips for Smith and Olson. He then turned to Rue, asked if he really wanted to work. Rue said he needed the money. Curtis told him to go back to work with his tools. Rue did so. The other three men took their termination slips and left. Later that day Clark returned to the office to return some office keys to Curtis. On March 13 Clark called Simpson at a job in Plano, Texas, said he had been fired, asked if the discharge was firm, and whether he still had a job or not. Simpson replied that he was sorry about the discharge, as he felt Clark might have had a good future with Respondent, but that he would have to support Curtis in his action, "that is the way it is." Later in the week Curtis called Clark's home to find out where certain cash receipts kept by Clark were located. Clark was not home, so Curtis asked his wife to find out from Clark. Clark called Curtis shortly and accused him of harassing his wife. Curtis denied any harassment and explained why he called. In the discussion, Curtis com- mented that Clark had been doing a good job and still had a future with Respondent, and suggested Clark return to work at the home office in Nashville, as he knew Clark's wife did not like the Big Spring area. He also reminded Clark that he (Curtis) could not pay men on the Big Spring job for not working. Clark refused the suggestion, saying that he did not feel that his termination was the fault of Curtis at that time, but the fault of Respondent, and "I will get the company." Clark had another phone talk with Curtis on the weekend of March 16-17, in which Curtis again suggested that Clark go back to Nashville to work and "forget about this," adding "you know you cannot work here with me." Clark replied that he felt his 7 The ironworker incident will be discussed further below 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination was not the fault of Curtis, but of Respondent, and he would take action against Respondent about it. In the week of March 17, Clark followed Curtis' suggestion by calling Respondent's personnel director in Greenville, South Carolina, who offered him a job at a project in Wichita Falls, Texas. Clark declined the offer. He later got a temporary job through a union. Two days after their discharge, Smith and Olson got long-term employment on a job in Seminole, Texas, through a union.8 B. Arguments of the Parties, and Conclusions Thereon There is no disagreement among the parties, and I find, on the above events, that Clark and Smith engaged in protected concerted activity when Clark compiled a list of the grievances of the employees in the complaint letters with the help of Smith and other workers. Smith, Olson, and Rue endorsed the complaint by signing it, and Clark sent it to Respondent as agent or spokesman for the others. Although Clark was an office clerical employee and to some extent a management trainee at the time, and was a volunteer to the extent that he initiated, composed, and sent the grievance letter on behalf of the production employees without formal designation as their agent, he was still engaged in concerted protected activity. Buddies Supermarkets, Inc., 197 NLRB 407, 417-418 (1972) (discharge of Charles Ray Smith); Dakota Electric Associa- tion, 201 NLRB 302, 306, 307 (1973), and cases cited therein ; Hugh H. Wilson Corporation, 171 NLRB 1040 (1968), enfd. 414 F.2d 1345 (C.A. 3, 1969), cert. denied 397 U.S. 935. Since top management of Respondent did not receive the grievance letter until March 13, the crucial questions are whether Curtis knew or had reason to believe Smith and Clark were engaged in this concerted activity when he discharged them on March 12, and whether such knowl- edge or belief, if it existed, played any part in the discharge, or whether he discharged them only for engaging in and advocating an organized slowdown of work, as Respondent contends . Respondent's defense is based on the well-settled principles that employees who engage in deliberate "slowdowns" of work or encourage others to do so, and thus refuse to work upon the terms prescribed by their employer but continue to work only on their own terms, are engaged in activities not protected by the Act, and their discharge for such activity does not violate the Act. Elk Lumber Company, 91 NLRB 333, 337, 338 (1950); N.L.R.B. v. Blades Manufacturing Corporation, 344 F.2d 998, 1004, 1005 (C.A. 8, 1969); General Electric s The above facts are found from a composite of credible testunony of Curtis, Rue, Glenn Preas, numerous admissions of Clark and Smith, and documentary proofs . Testimony of Clark and Smith in conflict with the findings is not credited for reasons noted hereafter. s Curtis admits that, after he learned a husky ironworker on the job had been "picking on" his electricians, he suggested to some of the crew that Rue, a husky man himself, might be sent to work in the area of that ironworker so he might "whip" him if he continued to pester the electricians. Rue declined the offer. to The record shows that : Clark was transferred by Respondent to Big Spring with the understanding that he would begin to learn the operation of Company, 155 NLRB 208, 220-221 (1965); New Fairview Hall Convalescent Home, 206 NLRB 688 (1973). At the outset, as background on the issue of motive, I must consider the complaint that Curtis coerced Clark on March 11 by a threat to discharge him because he engaged in the concerted activity of sending the letter to Simpson. It is clear that when Clark suddenly gave Curtis the copy of the letter on March 11, said he had sent it to Simpson, and Curtis looked it over, Curtis knew that Clark was complaining, not only about Curtis' actions and attitude toward Clark, but also about his treatment of and attitude toward the production crew, so that it must have been patent to him that Clark was speaking for the crew about some of the incidents he related. Hence, his immediate comment to Clark that the letter was a "mistake" and that as a "result one of us will be leaving, and it will not be me," is prima facie proof that Clark would be discharged, in part at least for presenting grievances on behalf of production employees. Curtis in testimony admitted he was well aware of the "ironworker" incident where he is charged with inciting the men to violence .9 However, he also knew that Smith had been malingering by slowing down his own work and working against his employer by urging others to do the. same, and I find from his testimony that he reasonably inferred from the charges of "driving" and "rushing" men in their work so that they "run out of work" and have to wait for more work, with shortened paychecks, that this complaint was related to Smith's attempts to cause slowdowns, and that Clark sympathized with these efforts at disruption of the operations and sabotage of the work. Since he knew this support came from one he had befriended and tried to help ever since he came to the job,10 and who was a trusted employee with whom he worked closely every day, I am convinced that his threat that Clark had to go was based solely on the realization that he could no longer have a man working directly for him in a position of trust whom he had befriended and who was disloyal in supporting efforts of others to sabotage the operation. I must also infer that Curtis was greatly shocked by Clark's disrespectful remarks to him during their phone conversation of March 8, as a result of which he told Clark on the spur of the moment not to come to work that day. However, he did not prevent Clark from completing the payroll later on March 8, and there is no charge by General Counsel that the order not to report that day was violative of the Act . I must conclude that Clark's sudden disrespect of March 8, followed by his revelation on March 11 that he had gone behind Curtis' back to make a series of complaints, both personal and general, about Curtis as a person and company agent, probably not only shocked but angered Curtis, and made him conclude right then that he could no longer have a man working in a close the business, with the idea of possible advancement into a management position. Curtis accordingly taught him personally many of the duties of purchasing and expediting of deliveries. He also urged him repeatedly to attend a voluntary on-the-job training school conducted by Curtis, so that Clark could learn basic and advanced electrical theory, also local code requirements, which would help him to advance toward journeyman status and procure a local electrician's license. In addition, Curtis took a personal interest in Clark, letting him and his wife room with Curtis until they secured an apartment, and frequently talking socially with Clark, and treating him like a son. DAVIS ELECTRICAL CONTRACTORS, INC. and confidential position with him who had thus displayed his disloyalty of and disrespect to Curtis. I am convinced these circumstances caused Curtis to make the instinctive remark that they could no longer work together , and that one of them would have to go . In this context, I am convinced and find that the general complaints and evidence of concerted activity set forth in the letter played no motivating part in the threat of discharge, and I conclude that it was not actually or reasonably calculated to be coercive, and did not violate the Act. I recommend dismissal of paragraphs 7, 10, and II of the complaint dealing with this incident. I have already found that Smith deliberately slowed down his work, and preached the same tactics to others, before his discharge, and had continued this conduct despite repeated warnings from his foreman and Curtis. According to his admissions, he continued this disruptive conduct in a defiant and flagrant manner on March 11, when he several times shirked his work , got his helper to do the same thing, and urged others to slow down, although he admits he knew the whole crew were working against a short deadline that day. As Curtis reminded him of his past derelictions, when he walked in on March 12 and knew from personal observation that Smith had been absent from his work a substantial period the day before, I am satisfied that this was the last straw which caused Curtis to discharge him on the spot. At this moment, Curtis had no knowledge that Smith had signed the letter to Simpson,11 'so I must find that the instant discharge was for cause, in the form of refusal to work, and inciting others to stop work and slow down, and was not discriminatory. When Clark walked in shortly after, Curtis mentioned to him only the charge in the letter about working men "out of work," and got Clark to admit he favored a slowdown and stretchout of worktime to enable the men to get more pay for less work. Curtis understandably said that he would be fired himself if he allowed a thing like that, and discharged Clark on the spot because, as he stated clearly, he could not have a man working against him in the office (who had control of time records and payroll accounts). At this moment, I am satisfied that Curtis had in mind only Smith's continued failure to work and attempted sabotage of the job, and Clark's agreement with that conduct. He did not mention any of the other grievances stated in the letter, and neither Smith nor Clark tried to bring them up or argue about them. Curtis clearly fired Foreman Olson for the same reason , when he admitted he agreed with in effect Smith's action and that Curtis should work out some method of giving the men more time .12 It is also significant that the General Counsel floes not complain that Olson was illegally discharged, which convinces me that when he discharged the three men, Curtis had in mind, as he credibly testified, only the unusual circumstance that three good employees, one a competent journeyman, another a trusted office employee, and the third a foreman, had variously engaged in, preached, and supported a slow- 11 Smith admits he did not tell Curtis at any time in the discussion that he had signed or concurred in the grievance letter , and there is no credible proof from other witnesses that Curtis knew before he discharged Smith that he had engaged in the concerted activity. 12 This argument was clearly a pretext and without merit , as it was stated by Smith and Clark, because on that date Respondent had had the working 107 down. While Curtis was thus confronted with a concerted effort by these three employees to organize and continue a slowdown, this concerted activity and threat of its continuance was not protected by the Act, but was ample ground for their discharge, under the cases cited above. That this was Curtis' sole motive in the discharge is also indicated strongly by the fact that in the ensuing argument over the reasons to be put on the termination slips, Curtis referred only to the slowdown tactics, not to any other grievances stated in the letter, and also by the contrasting treatment of Rue, who was at once put back to work when he claimed that he signed the letter only because of the ironworker incident, in effect disclaiming any support of a slowdown. Another indication that the concerted com- plaint about working conditions played no part in the discharge lies in Curtis' repeated offer to the three, while arguing about the wording on the termination slips, that they should all forget the "whole mess," and go back to work and do their jobs. General Counsel argues that this was not an unconditional offer to return to work, because it implied that the three employees must forget and drop their concerted presentation of grievances as the price of reinstatement. I do not read this condition into the offer, because in the context of the existing full employment and increase of the work force, his suggestion that they forget the "whole mess," was merely a request that they get back to work and do their jobs, forgetting the illegal slowdown, while he would forget about their disloyal and disruptive tactics, and they would all try to work in harmony thereafter. Hence, it was not a one-sided offer, requiring employees to forego protected concerted activity before reinstatement, but mainly an effort by a supervisor concerned only with getting on with the job to keep good men at work, notwithstanding past derelictions.13 Finally, Respondent's lack of animus toward either Clark or Smith based on their known concerted activity is indicated by the facts that: (1) Curtis made two later suggestions that Clark return to work at Nashville, which I consider were sincere efforts to continue to help Clark out, despite his disloyalty to Curtis, for Curtis testified credibly that he had authority as supervisor at Big Spring to recommend men for jobs at other sites, and he made these suggestions while reminding Clark that he could not come back to Big Spring because of his conduct toward Curtis; it is inferable that Curtis would not have made these suggestions if he felt Clark was entirely incompetent or valueless to Respondent. (2) Although Curtis knew on March 12, and Smith made no attempt to contradict him, that Smith had been the main malefactor in actual slowdown on the job and instigating others to do the same, he also realized that Smith was a competent journeyman when he actually worked, and this was the reason, as he testified, that he blueprints for almost a month, and the job was apparently running fulltime for all employees, as the work force had been increased to 14 men. 13 Curtis admitted Smith was a competent workman when he worked, and he was plainly willing to clear the back slate and continue Clark at work, even despite his patent disloyalty to both Curtis and Respondent in supporting a slowdown. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered to let Smith go back to work, provided he did his work right.14 In reaching these conclusions I have considered carefully the issue of credibility as between Curtis on the one side and Smith and Clark on the other, and have concluded that the inherent probabilities favor the version of the facts stated by Curtis. In appraising the credibility of Smith and Clark, I noted that they were young men, both acting and testifying in a rather calculated and careful manner. Clark in particular impressed me as a coldly calculating but articulate individual whose actions in this case appeared carefully designed to build a case of concerted activity based on many grievances of seeming merit in order to hide Smith's derelictions and efforts at sabotage and Clark's concurrence therein. It is also clear Clark acted not from genuine concern for his fellow-workmen, but more from some personal animosity toward Curtis, as he admitted he did not like Curtis or working for him, and openly expressed this dislike to other employees before the dismissal . In light of Curtis' special attempts to help him advance himself in the business as found above, and his general friendliness toward him as a person, Clark's repayment by a refusal to help Curtis to get Smith to reform, his disrespectful name-calling of Curtis, and secretive attempts to undermine his status with Respon- dent as well as supportive attempts of Smith to sabotage the operation, all tend to discredit him as a person and as a witness. In contrast, I found Curtis to be a rather direct- spoken and sincere individual, less articulate and less well educated than Clark, but nonetheless impressive in his plain and straightforward manner and testimony on the stand. Despite their patent attempts to corroborate each other i.i presenting a studied picture of protected concerted activity, the testimony of Smith and Clark in some respects is contradictory, and Clark contradicted himself on certain aspects of his dealings with Curtis on the date of discharge and later. These discrepancies further tend to affect their credibility. Aside from these weaknesses in their stories, their credibility is further diminished by the fact that Foreman Olson was not produced by either Clark or General Counsel to support their testimony. According to both, Olson was the main source of information about Curtis' alleged failure to provide protection for the men against bad weather, his alleged talk about and criticism of workers behind their backs, his alleged belligerent attitude toward workers in a meeting early on March 8, and his is General Counsel refers to the fact that Curtis had never before discharged a group of employees on the job, as indicative of the discriminatory nature of the mass discharge of four men. The argument has no merit, because the record shows that while Curtis had discharged at least two other employees singly for failure to do their job , as he did Smith, he had never before been faced with a concerted effort at sabotage of the operation by a group of employees. is 1 find from credible testimony of Curtis , as corroborated in part by admissions of Smith and Clark, that- Sporadic inability of electricians to work during bad weather in January and February was due in part to the state of construction of the portions of the hospital where they were working, which made adequate protection impossible , and apparently caused the general contractor to close down the whole job at times, and in part to the decision of Respondent's employees themselves that they found it too hard to work in bad weather ; Curtis often let them make this decision for themselves Aside from the "ironworker" incident, admitted by Curtis, alleged threatening handling of a broken pool cue on that occasion, and the alleged reason for presence of police on the jobsite that day. Olson's testimony would also have been helpful prima facie in assisting the court in resolving the many conflicts of testimony about the circumstances of the discharges themselves. Since credible testimony of Curtis and admissions of both Clark and Smith give reasonable explanations for these incidents which tend to offset the implications from testimony of Smith and Clark that Curtis was a heavy-handed, erratic, rather tyrannical supervisor who caused dissension among the men and created unsatisfactory working conditions that prompted the grievance letter, and also discharged the two because of the grievance letter ,15 the testimony of Olson was obvious- ly crucial to support the stories of Smith and Clark. Although General Counsel subpenaed Olson, he did not appear. At the close of General Counsel's case-in-chief, colloquy between counsel indicated that Olson might be a fugitive to evade service of a state warrant for arrest. When the court offered to give General Counsel time to enforce his subpena through process of the United States District Court, that official declined to take that step. In these circumstances, I must conclude that Olson was not shown to be unavailable as a witness , since General Counsel did not exhaust the remedies available to him to compel appearance of an important witness . I can only ,infer from this inaction that Olson would not support the testimony of Smith and Clark if he testified.16 In sum, considering all of the pertinent facts and circumstances pro and con, while the issue on the facts is close, I must conclude that Respondent has adduced cogent proof indicating that both men were discharged for good cause which is sufficient to rebut theprima facie case of discrimination made by General Counsel , and that General Counsel has failed to sustain the ultimate burden of showing by substantial proof from the record as a whole that Respondent discharged them for concerted activity. I therefore recommend that the amended complaint be dismissed in its entirety.17 On the facts found above I conclude as a matter of law that Respondent, as an employer, engaged in commerce within the meaning of the Act, has not violated the Act by its discharge of David Clark and Robert K. Smith, or by any other conduct alleged in the amended complaint. On the basis of the foregoing findings of fact and conclusions of law , and on the entire record in the case, I hereby issue the following recommended: which was an isolated instance, there is no credible proof that Curtis preached violence on the job, indulged in violence himself, or caused dissension among the men by idle talk or other means. The "pool cue" incident involves a conflict of testimony between him and another worker as to whether a broken pool cue was in the office on March 8 , but there is no proof at all that Curtis held it in his hand or threatened any employee with it then or any other time The presence of police on the site is credibly explained by testimony of Curtis and Clark that equipment had been missing from the site, so that police were regularly on patrol on the site during the night , and were on the site on March 8 for investigation of possible thefts. is Community Motor Bus Company, Inc., 180 NLRB 677, 681 (1970) IT I have considered other peripheral facts and circumstances cited by General Counsel, and his arguments thereon, but find them insufficient to warrant findings and conclusions different from those found above DAVIS ELECTRICAL CONTRACTORS, INC. 109 ORDER is The amended complaint in Case 16-CA-5500 is dis- missed in its entirety. 18 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings , its findings, conclusions, and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.