H. B. Zachry Co.

H. B. ZACHRY COMPANY H. B. Zachry Company and Local Union 384 of the International Brotherhood of Electrical Workers. Cases 16-CA-6824, -2, and 16-CA-6845 December 13, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 17, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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 Respondent, H. B. Zachry Company, Muskogee, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We also adopt pro forma the Administrative Law Judge's findings with respect to the allegations to which the General Counsel did not except. 2 See, generally, Isis Plumbing 4 Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on February 14, 15, 16, 17, 18, 22, and 23, 1977, at Muskogee, Oklahoma. The original charge in Case 16-CA-6824 was filed on October 5, 1976. The first amended charge in Case 16-CA- 6824 was filed on October 13, 1976. The original charge in Case 16-CA-6824-2 was filed on October 14, 1976. The charge, first amended charge, second amended charge, third amended charge, and fourth amended charge in Case 16-CA-6845 were filed on October 19 and 21 and November 2 and 17, 1976, respectively. The order consolidating Cases 16-CA-6824, 16-CA- 6824-2, and 16-CA-6845 and the consolidated complaint in this matter were issued on November 18, 1976. The issues concern whether Respondent has violated Section 8(aX3) and (1) of the Act by discharging seven employees in September and October 1976 because of their union and protected activities, and has violated Section 8(aXI) of the Act by discharging three supervisors because of their refusal to engage in unlawful conduct violative of the Act, and whether Respondent has violated Section 8(aX)1) of the Act by certain other conduct. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admissions therein. H. B. Zachry Company, Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware and is engaged in the general industrial and heavy construction business, and maintains its principal office and place of business in San Antonio, Texas. Respondent is engaged in the construction of a power plant at Muskogee, Oklahoma, the only site involved in these proceedings. During a representative 12-month period, Respondent, in the course and conduct of its business operations at Muskogee, Oklahoma, purchased and received goods valued in excess of $50,000, directly from suppliers located outside the State of Oklahoma. As conceded by Respondent and based on the foregoing, it is concluded and found that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED 1 Local Union 384 of the International Brotherhood of Electrical Workers is, and has been at all times material The facts are based on the pleadings and admissions therein. 233 NLRB No. 160 1143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues; Supervisory Status2 At all times material herein, the following named persons occupied the positions set opposite their respective names and have been and are now agents of Respondent acting in its behalf and are supervisors within the meaning of Section 2(1 1) of the Act: O. H. Lampton, project manager; Douglas Schad, general field superintendent; J. B. Garner, electrical superintendent; Milton Tausch, assistant electrical superin- tendent; John Null, electrical general foreman; Norman Brown, instrumentation general foreman; Boudreau Bow- den, electrical general foreman; Richard Bartley, electrical foreman; Chester Farmer, electrical foreman; Darwin Choate, electrical foreman; Benjamin Weaver, electrical foreman; Billy D. Grissom, electrical foreman; and John Thornton, chief security guard. B. The Facts and Conclusions3 H. B. Zachry Company, Respondent, around May I, 1974, commenced construction of two units of an electrical generating station for Oklahoma Gas & Electric Company at Muskogee, Oklahoma, referred to herein as the OGE project. In the construction of such project Respondent's employee complement reached approximately 1,075 em- ployees in all crafts of the construction industry. There is no evidence that Respondent considered union membership or the lack thereof in the determination of employees hired for the project. 4 By around August 9, 1976, the OGE project had progressed to the state that Respondent went into a startup schedule in order to establish an orderly sequence for starting the various pieces of equipment and system necessary to making the first unit of the project operation- al. The aspects of the electrical work to be performed became more important at this stage. The major issues in this case involve the conduct of Respondent by its supervisors as related to certain foremen and employees in the performance of electrical work under the supervision of Electrical Superintendent J. B. Garner. The breakdown of authority and supervisory responsibility concerning the employees performing work under Garner may be described as follows. The top echelon of authority and responsibility for the project rested in O. H. Lampton, project manager. Assisting Lampton was Douglas Schad, general field superintendent, whose authority and responsi- 2 The facts are based on the pleadings and admissions therein, and statements narrowing the issues made at the hearing. The General Counsel in his brief removed the issue of agency or supervisory status of Gary Bishop who had been alleged as a supervisor and agent. 3 The facts are based on a composite of the credited aspects of the testimony of all witnesses, exhibits, and stipulations made at the hearing. 4 The General Counsel's brief refers to certain understandings between Respondent and the Trades Council as to wages, etc. It appears that by inadvertence he may have construed dialogue between counsel in the opening statements at the trial as constituting a factual stipulation. I do not construe such as a stipulation, and no facts thereto were introduced. In any event, the details thereto are not important to the issues herein. bility appeared slightly less than Lampton's but clearly was above the craft superintendents'.5 Thus, Lampton and Schad may be said to have occupied positions at the top as regards supervisory responsibility over superintendents and lesser supervisors.6 Garner, who functioned under Lampton and Schad, was over what appears to have been the electrical area. Under Garner was Assistant Electrical Superintendent Milton Tausch, and under Garner and Tausch were two electrical general foremen, Null and Bowden. Under Electrical General Foreman Null were four foremen, in positions described as that of electrical foremen, who supervised the work of crews of employees consisting of journeymen electricians and helpers. Until October 14, 1976, the four electrical foremen under Null were Wayne Matthews, Chester Farmer, Darwin Dale Choate, and Billy D. Grissom.7 On October 14, 1976, Farmer, Choate, and Grissom were fired and other persons were made electrical foremen in their places. Thus, as an example, Richard Bartley replaced Grissom as electrical foreman, and Ben Weaver replaced Darwin Dale Choate around October 14 or 15, 1976. It appears that Electrical General Foreman Bowden had three or four electrical foremen under his supervision. It appears that three of the following four, or that all four of the following named electrical foremen worked under Bowden. The record reveals that Carl Spangler, Joe Ussury, William Sparks, and James Foster were electrical foremen; that Foster was an electrical foreman over "wire pullers," and apparently worked under Bowden. Some of the issues in this case involve the conduct of supervisors and employees who work with piping and instrumentation. As to such supervisors and employees in piping and instrumentation, similar to the electrical employees, top management authority on the project was vested in O. H. Lampton, project manager. Next in line of supervision, as indicated, was Douglas Schad, general field superintendent. Richard Bentley was Respondent's pipe superintendent over piping and instrumentation. The total number of employees under Bentley ranged around 120- 125. Bentley was over two general foremen, Yielding and Norman (Sarge) Brown. General Foreman Yielding had four foremen to supervise four crews. General Instrumen- tation Foreman Norman (Sarge) Brown had, it appears, one foreman, Lary Guest, who was over one crew. Lanny Choate, an alleged 8(a)(3) violation in this case, worked on Guest's crew. Activity concerned with the organization of Respon- dent's electrical employees for the Union, Local Union 384 of the International Brotherhood of Electrical Workers, commenced in late August 1976. Employee Jim Spencer initiated the efforts by contacting a friend who was a 5 Although Bentley's testimony indicated that he looked to Lampton as his only supervisor on the job, I am persuaded that the total facts reveal this line of authority. A different finding, however, would not affect the results in this case. 6 The total number of employees on the project appears to range from 1,050 to 1,075. The project covered approximately 700 acres. I The number of men on several of the respective crews appeared to range as follows: on Dale Choate's crew - from 19 to 35, on Farmer's crew - from I I to 20, on Grissom's crew - approximately 16. 1144 H. B. ZACHRY COMPANY member of the IBEW. Around September 1, 1976, some of Respondent's employees and foremen formed an organiza- tional committee. The initial organizational committee was composed of five persons. Such five members were (I) Darwin (Dale) Choate-electrical foreman, (2) Chester Farmer-electrical foreman, (3) William K. Choate-jour- neyman electrician, (4) Jim Spencer-journeyman electri- cian, and (5) Jerry Porter-journeyman electrician. A few days later the original five committee members decided that they needed a larger membership on the organizing committee, and five additional employees were selected, named, and apparently agreed to serve. The additional 5 members as added constituted the remainder of the 10- member committee. Thus, the 6th through 10th members were (6) Billy Grissom-electrical foreman, (7) Lanny D. Choate-journeyman instrument fitter, (8) Don Deaton- journeyman electrician, (9) Vick Crain-journey electri- cian-temporary hookup man, and (10) Dennis Law- rence-employee.s After the above organization of the Union's committee it is clear that some union talk was generated on and off the project by members of the organizing committee during the period of time of September I to 13, 1976. 9 It is also clear that around this time there was some impediment to job progress resulting from problems relating to location of tools, materials, and other problems relating to work flow. Around the middle of September, Respondent's supervisor noted a problem relating to work progress and that some employees appeared not to be working at top efficiency. On September 13, 14, 15, and 16, Respondent's vice president, Hammond, in charge of labor relations, con- ducted seminar meetings for supervisors to acquaint new supervisors with company policy.' 0 At the seminar meet- ings, Respondent's agents pointed out to its supervisors that there was a policy that there should not be solicitation of signatures on union cards during working hours; that employees were supposed to work during working hours.t" For several days before September 23, 1976, it was more noticeable that some of Respondent's electrical employees were not fully attentive to their work duties. On September 23, 1976, a leaflet was distributed, apparently at the entrance, to Respondent's employees. Said leaflet referred to itself as being from "The Southeast- ern Oklahoma Building & Construction Trades Council" and as being addressed to "All employees of H. B. Zachry Company Working on the OGE Power Plant." The leaflet referred to alleged meetings between officials of Respondent and officials of said Trades Council and to s Both Respondent and General Counsel appear to refer to Dennis Lawrence as a journeyman electrician. Whether Dennis Lawrence and John Lawrence, a journeyman electrician, are one and the same is not clear. Evidence on such points was fragmentary and piecemeal. A precise finding for the issues herein is not important. 9 The facts are based on a consideration of the totality of the facts presented and logical inferences to be drawn therefrom. Jo Nonie of the foremen or supervisors involved in this proceeding appeared to be of essentially recent hire or promotion. Rather, they appeared to have been supervisors for some months. Considering all of this and the timing of events, it is clear that Respondent had become aware of or suspected that union activity was going on. 1i The facts relating to the policy against solicitation for signatures on union cards were presented in the testimony of Lampton. project manager. Lampton could not remember, but believed that it was stated that employees were free to discuss the Union on their breaks, before work, after an alleged agreement as to wages but specifically excluded agreement as tofringe benefits. 12 The leaflet further set forth certain designated crafts, contended wages, fringes, and the "total package" of "wages and fringes." Employees were solicited to report their wage scales if they worked in said crafts and if their wages were below the indicated wages on the leaflet for possible use in obtaining "back wages." Employees were also solicited to sign for representation by the craft havingjurisdiction over their wpork. Page 2 of such leaflet contained an excerpt of Section 7 of the National Labor Relations Act (pertaining to employee right to self- organization, to form, join, or assist labor organizations, etc.) and examples of referred-to Section 7 rights. Page 2 of the leaflet also contained forms for completion relating to job classification and pay rates, and for authorization for representation. Page 2 of the leaflet referred to return of such leaflet to the "Southeastern Oklahoma Building Trades." Lampton, project manager, reported the handbilling of September 23, 1976, to Vice President Hammond, in charge of labor relations, and to Attorney Krog. Following this, apparently on September 24, 1976, or shortly thereafter, Lampton had a typewritten sheet handed out to employees in response to the Building Trades Council leaflet of September 23, 1976. Apparently around September 23, 1976, General Fore- man Null observed that there appeared to be a lack of progress of work on the crews of Foremen Farmer, Grissom, and Choate. Null spoke to the foremen about the problem and asked them in effect to check into the matter. Apparently the foremen indicated in conversations with Null that they saw no real problem, that there were, however, employee complaints concerning materials and supplies, etc. General Foreman Null observed no problems with Foreman Matthews' crew. From early September to September 23, 1976, Foremen Farmer, Grissom, and Choate's union activity had been limited to the organizational meetings and to some talk about the Union. Following the September 23, 1976, handbilling by the Trades Council, Foremen Farmer and Grissom continued to talk to employees about the Union and commenced to solicit signatures on union cards. During the period of time, September to October 14, 1976, Foreman Grissom talked to approximately 20 employees work, and during lunch hours. The only evidence as to whether the employees were ever adverted to such policy was also presented in Lampton's testimony which was ambiguous in effect. It is hard to tell from his testimony whether he is referring therein to what was said to supervisors and/or what was said to employees. The evidence is unreliable to establish that an unlawful policy was announced or was in effect, that an unlawful rule was announced to employees, or that a rule was enforced in an unlawful manner as to solicitation for union membership. Further, the General Counsel has not alleged in his complaint, has not by amendment to the complaint so alleged. nor has contended at the hearing or in brief that there has been an unlawful solicitation rule. '2 Considering this, I find it hard to understand General Counsel's contention at the hearing and in brief, not supported by evidence, that an agreement as to fringe benefits was made between the council and the employer. 1145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the Union and was successful in getting 19 employees to sign union cards.13 Most of the employees who signed union cards for Grissom worked on Grissom's crew. Foreman Farmer, after September 23, 1976, signed a union card and continued to talk to employees about the Union. In all, after September 23, 1976, until October 14, 1976, Foreman Farmer was successful in getting 18 employees to sign union cards. Farmer's solicitation of employees to sign union cards occurred in the boilerroom area where his job responsibilities were. In all, Foreman Farmer talked to 17 to 18 employees who worked under him, and to 11 or 12 other employees about the Union during the period of time from September I to October 14, 1976. Foreman Dale Choate did not solicit employees to sign union cards. After September 23, 1976, Foreman Choate's union activity consisted of meetings with some members of the organizing committee and others, aiding them in the discussion of cards and strategy. Around the time of the September 23, 1976, handbilling, Foreman Grissom spoke to Foreman Joe Ussury and asked him if he might be interested in the Union. Ussury told Grissom that he wasn't interested, that he had worked for a union before, that it wasn't to his liking, but that if the other people wanted it, he didn't have anything against it. Foreman Farmer spoke to Foreman Wayne Matthews before the formation of the organizing committee in early September 1976. Foreman Farmer asked Matthews if he were interested in the Union. Foreman Matthews replied that he was interested in the Union. Later, around October 1, 1976, Foreman Farmer again spoke to Foreman Matthews about the Union. At this time Foreman Matthews told Foreman Farmer that he was not interested in the Union. Foreman Dale Choate, shortly after the September 23, 1976, handbilling by the Trades Council, discussed the handbilling with Foreman Joe Ussury and Foreman Carl Spangler. In such discussion, the possibility of backpay was alluded to. Foreman Choate told Ussury and Spangler that he was going to sign the forms on the handbill (union authorization and information relating to the job and pay scale) and send such back to the Trades Council. Choate also had several other conversations with Foreman Ussury about the Union. As has been indicated, supervisors of Respondent, around the middle of September 1976, had observed some employees who appeared to be standing around and talking. Supervisors also observed more and more of this type of activity around September 22 and 23, 1976. It is also clear that in general the employees did not appear to be working at their normal pace between mid-September and October 14, 1976.14 At some point of time, after mid-September 1976, and apparently 3 weeks before the discharges of Farmer, Dale 13 No evidence was presented to the effect that Grissom himself signed a union card. 14 These facts are not really in dispute as evidenced by testimony of General Counsel's witnesses Dale Choate and Billy D. Grissom, who were foremen and whose interests in this case are allied with those of the alleged discriminatees. Is The facts are based on a composite of the credited aspects of the testimony of Robbins, Tausch. and Schad, and a consideration of the logical consistency of all of the facts and stipulations presented in the case. Choate, and Grissom on October 14, 1976, General Foreman Null told Foreman Farmer that Assistant Electrical Superintendent Tausch was going to have a barbeque ("chewing out") of one crew and that he was similarly going to handle another crew at the Monday morning safety meeting. Null told Farmer that his (Farmer's) crew was doing all right and didn't have to attend such session. Apparently the events that Null referred to occurred after the September 27, 1976, Monday morning safety meeting. In any event, it is clear that Assistant Electrical Superintendent Tausch met with Foreman Dale Choate and his crew on September 27, 1976, after the regular safety meeting. At such meeting Tausch told the crew that production had fallen off, that they were not "getting enough done," that there were a lot of employees who were just standing around talking, that employees were not staying in their work areas, and that the journeymen were not working their helpers the way they should be worked. On September 28, 1976, Respondent discharged J. Leo Robbins, a journeyman electrician. The General Counsel alleges and Respondent denies that the discharge of Robbins was because of his union activity in violation of Section 8(a)(3) and (1) of the Act. The facts relating to such issue are set out as follows. The Discharge of Robbins,15 September 28, 1976 Robbins commenced employment for Respondent in March 1976 as a journeyman electrician. During the relevant time involved in this proceeding, Robbins was an employee under Foreman Darwin Dale Choate. Choate's crew was involved in work in the turbine area. Prior to the union activity involved (September and thereafter) there had been rumors concerning a union in July 1976. At such time Robbins had spoken to a fellow journeyman electrician, Carl Spangler, about his belief in and support of unionism. Later Spangler became a foreman and was a foreman at the time of the crucial events in this proceeding.1s In early September 1976, Spencer and Porter, union activists, spoke to Robbins about the question of a union and their organizing efforts. Robbins engaged in some union talk at that time. Robbins, however, was not designated as a member of the union organizing commit- tee. Around the second or third week of September 1976, Robbins took a 2-week unpaid vacation which apparently ended around September 22, 1976.17 Robbins had asked Tausch for time off for his vacation. Tausch was reluctant in allowing Robbins to have the time off that Robbins desired. Apparently there was some compromise as to when the time off started and ended. It appears that the time off started approximately on September 10, 1976, and ended approximately around September 22, 1976. In any '6 Realistically, the mere change in status from that of employee to foreman does not affect the memory process. 1? Robbins testified to the effect that he took a 2-week vacation. Tausch's testimony indicates that the length of the vacation was approximately 5 days. Since Robbins was more directly involved in the vacation, I credit Robbins' testimony as to the length of the vacation. 1146 H. B. ZACHRY COMPANY event, it is clear that Tausch was unhappy over the time off that was taken by Robbins. Around the time that Robbins returned to work the Trades Council had distributed the September 23, 1976, handbill. After such distribution, Robbins, apparently, on September 27 and 28, signed a union card and successfully solicited another employee to sign a union card. During the early part of September, after he returned to work from his vacation until his discharge, Robbins spoke to a total of about 12 employees about the Union.18 As has been indicated, Assistant Electrical Superinten- dent Tausch spoke to Foreman Darwin Dale Choate's crew about production, about standing around, and about working helpers, on September 27, 1976. Prior to the events of September 28, 1976, Assistant Electrical Superintendent Tausch had complimented work performed by Robbins. Tausch had, however, at such time indicated to Robbins that the quantity of his work was not good. On September 27, 1976, Tausch asked Foreman Choate what Robbins was doing. Upon being told by Choate that Robbins was working on the unit-five generator, Tausch told Choate that they didn't need to be working on the unit-five generator, to move Robbins to the number four turbine area. Either on September 27, 1976, or in the early morning of September 28, 1976, Foreman Choate assigned Robbins to work in accordance with Tausch's instructions. In the early part of the morning Tausch saw Robbins at work and indicated to Robbins that he was assigned to the task that he was performing because Tausch liked the way he performed his work.19 Apparently there was rumor or conjecture among some of the union adherents that an employee named Gary Bishop had reported to management the names of employees who were talking about the Union.2 0 On the morning of September 28, 1976, around 10 a.m., Robbins spoke to Gary Bishop while Robbins was on the way to the toolshed. Robbins told Bishop that they were old friends, that they had worked together, and asked Bishop if he would do him a favor. Bishop told Robbins that he would. Robbins then asked Bishop if he would please not give the names of any more union men working to the Company. Robbins told Bishop that if he kept giving such names to the Company, a lot of the men would be hurt and lose their jobs. Bishop did not say anything and walked off. When Robbins was returning from the toolshed to go back to his work area, Robbins saw Bishop talking to Foreman 1i Although Robbins on cross-examination described his union activity as being limited, the timeframe of his activity reveals that it was really not that of minimal activity. '9 Tausch testified to the effect that he did not compliment Robbins on the morning of September 28, 1976. Considering the overall facts, I am persuaded that Robbins' testimony as to such compliment is to be credited. It is clear that Tausch was trying to coordinate the aspects of the job. I am persuaded that Tausch was trying to give incentive to the employee and that he has forgotten what occurred concerning the compliment to Robbins. Considering all of this, I discredit Tausch's testimony that he also criticized Robbins' amount of production. Similarly, I credit Robbins' testimony that Tausch had complimented his work in the past. 29 On cross-examination, Robbins testified to the effect that he based such a belief on a conversation he had with his helper, Danny Morgan, Robbins' half-brother. According to Robbins, Morgan related to him a conversation that Morgan had had with Bishop to the effect that Bishop had made reports to management. It is clear that the employees and foremen Bowden. Bowden gave Robbins a "dirty" look as Robbins walked by. About an hour later Robbins saw Bishop again. As he was walking by Bishop, Bishop spoke to Robbins. Bishop asked Robbins if he could see him for a minute. Robbins told him that he could. Bishop then told Robbins that he didn't appreciate what Robbins had told him earlier. Robbins said, "Appreciate what?" Robbins told Bishop that he had only asked him not to be turning in names to the Company about union people. Bishop said, "Well, never mind." Bishop told Robbins that the assistant superintendent, Milton Tausch, was standing nearby. Robbins turned and saw Assistant Electrical Superinten- dent Tausch and Foreman Bowden standing about 20 or 30 feet behind Robbins. Robbins said, "So, what? We haven't done anything wrong." Robbins then proceeded away. During the morning of September 28, 1976, Assistant Superintendent Tausch observed Robbins at work and considered that he was going out of his way to talk to people, that he was not working his helper, and that he was not trying to get his job done. After lunch on September 28, 1976, Assistant Electrical Superintendent Tausch came up to Robbins who was standing with his helper, apparently getting his material set up for work. Tausch told Robbins to turn in his safety belt.21 Robbins asked "What for?" Tausch replied that Robbins was terminated. Robbins asked in effect that Tausch tell him the reason he was being terminated. Tausch replied that Robbins' work was not satisfactory. Robbins told Tausch that he was a "damn liar," that he knew that Robbins' work was good, that he had pulled him off of another job to do this job because he (Tausch) had wanted him to do this job. Tausch told Robbins that this wasn't what he had meant, that he meant that Robbins didn't do enough work, that he was talking too much to employees, that he just wasn't getting the job done. Robbins again told Tausch that he was a "damn liar," that he had told him before that he was one of the better workers, and that other men had told him he was one of the best workers there. Robbins told Tausch that when the foreman had been absent and he had run out of work, that he had gone to Tausch seeking something to do. Tausch told Robbins again in effect that he was terminated. Robbins then proceeded to call Tausch some vulgar names. Robbins told Tausch that he knew the reason he was being fired, that he was being fired for talking to who engaged in union activity had much discussion and conjecture of a hearsay nature. Because of the multitude of issues, much evidence, admissible for one point, but having no value as to other points because of hearsay, was presented. Whether Bishop had made reports to management prior to this point of time was not established. I note that some of the testimony indicated that Foreman Farmer had overheard Foreman Spangler indicate Bishop as the source of knowledge of Lanny Choate's having engaged in union solicitation. This referred-to overheard conversa- tion occurred on September 28, 1976. Foreman Farmer, in his testimony as to such overheard conversation, did not allude to Bishop's report in such regard. 21 The facts are based on a composite of the credited aspects of the testimony of Tausch and Robbins and a consideration of the logical consistency of all the facts. Testimony of either witness inconsistent with the facts found is discredited. I discredit, as an example, Robbins' testimony to the effect that Tausch admitted that he was firing him because of union activity. 1147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bishop. Tausch told Robbins that it wasn't just his talking to Bishop, but that it was his talking to three or more of the employees, that this, however, wasn't the main reason, that he was being terminated because he wasn't getting the job done. Contentions and Conclusions The General Counsel contends that Respondent fired Robbins because of his union activities and for a pretextuous reason. Respondent contends that Robbins was discharged because he wasn't performing his job. Some of the contended facts set forth by the General Counsel in his brief were not presented in evidence. Other contended facts simply were presented in such a garbled fashion that the testimony thereto has no probative value as to establishing the contentions. Boiled down, the General Counsel's case presents for consideration the question of whether or not Respondent discharged Rob- bins because Bishop reported to management Robbins' conversation with Bishop wherein Robbins asked Bishop not to report names of union employees to management. Robbins' testimony as to such events just simply wasn't presented in such clarity as to be probative to establish such point.22 Thus, the General Counsel would seek an inference that Bishop reported such conversations because of the timing of events. The evidence is clear that employees often speak to supervisors on the job about job-related matters. As an example, on cross-examination, Robbins testified to his own need to speak to supervisors on the job. The most critical point, in my opinion, involves the fact that Robbins was discharged and his helper, Morgan, was not discharged. Considering, however, the fact that on September 27, 1976, Tausch had spoken to Foreman Choate's crew about the journeymen working their helpers, I am persuaded that the preponderance of the facts reveals that Respondent discharged Robbins for cause and not for discriminatory reasons. In making the above determination, I have considered all of the evidence in the case. Thus, I have considered the question of company animus and propensity to discrimi- nate as revealed by the discriminatory discharges of Spencer, Porter, and Tom Carman.23 Although I find later herein that Respondent discharged Lanny Choate for discriminatory reasons, the facts as to such discharge do not have persuasive value in the general determination of union animus or propensity to discriminate. I have similarly considered evidence of unlawful interrogation by Bowden as having a bearing on Respondent's propensity to violate labor laws. The other alleged 8(a)(1) type violations largely constitute overflow from the evidence of animus revealed by Electrical Superintendent Garner in a conver- sation with other supervisors and in a conversation with 22 It is clear that Tausch told Robbins in effect that his talking to Bishop was not the only reason. The facts are clear that Robbins was seen talking to Bishop. This, however, does not reveal that the talking referred to by Tausch related to talking about the turning in of names to management. 23 1 have also considered the vanous family relationships of employees, the carpool arrangements, the number of discharges of ones on the organizing committee, and the totality of the facts. Such suspicions as arise therefrom are not sufficient to establish the facts than otherwise found. 24 Considering the circumstances of Garner's remarks to Foreman Foreman Brown.24 The unlawful interrogation by Thorn- ton and unlawful request to solicit reports on union activity, also, in my opinion, because of the particular background of security work, does not have persuasive value as to the overall question of animus in this case. Finally, this case presents the question of employee organizational rights opposed by Respondent's right to require employees to do their regular work. The issues in this case boil down in many instances to the question of disparate or pretextuous treatment on an incident-by- incident basis. In sum, I am persuaded that the facts relating to the discharge of Robbins preponderate for a finding that Respondent discharged him for cause and not for reasons violative of Section 8(aX3) and (1) of the Act. Accordingly, it will be recommended that the allegation of unlawful conduct in such regard be dismissed. On September 28, 1976, Foreman Chester Farmer, one of the Union's supporters, heard and participated in a conversation about the Union in the field superintendent's office. According to Farmer's testimony, which I credit, he went into the field superintendent's office on September 28, 1976, around 5 p.m. In the office at such time were Electrical Foreman Carl Spangler, General Foreman John Null, and Electrical Superintendent Garner. What occurred is revealed by the following credited excerpts of Farmer's testimony: 25 A. As I stepped into the office Mr. Null was saying "What was the man's name?" And Carl Spangler said, "I don't know what the man's name was, he was a little, short, fat man, in the instrumentation department," and he approached (I don't - forget the name that Carl Spangler said the man's name was that he approached) - I thought that he said that he approached Spangler, I might have been wrong - approached this fellow or myself (I don't remember who he approached) with that authorization card, and he was signing people up into the Union. I said, "Carl, you mean there's a man on this job signing people up in the Union?" He said, "Yes, right here on this job." And John Null said, they get a majority to sign up on these cards, and they get to vote. And J. B. Garner said, "Yes, and the majority gets run off." Q. Did you make any response? A. Yes. I missed one response that I didn't make. When Spangler said, "I don't know this man's name." Mr. Null said, "Choate. Choate." I said, "Choate, that's Dale Choate's brother." Brown and to Foremen Spangler, Farmer, and Null, I am persuaded it revealed his true beliefs and attitude. Other evidence as to expressions by Garner and others as to the fact "that union activity would have no bearing" were made at a time when such statements appear to have been guarded in nature. 5s Respondent argues in effect that Garner did not state what he meant by remarks to the effect that the employees would be run off. In the context of the total conversation, it is clear what Garner meant. It is clear that he was saying that the employees would be fired. 1148 H. B. ZACHRY COMPANY Q. Was there any reference during this conversa- tion to any other employees other than Mr. Choate? A. Yes. Q. And who were they? A. Carl Spangler said, "Well, I'm sure about this man in the instrument department passing out these authorization cards, but it's just hearsay about Jim Spencer and Jerry Porter having these handbills put out at the gate." Alleged Creation of Impression of Surveillance On the evening of September 28, 1976, and during a period of time shortly thereafter, Foreman Farmer told employees, including Lanny Choate and Jerry Porter, the essential details of the conversation he had heard and participated in earlier that day between Foreman Spangler, General Foreman Null, and Electrical Superintendent Garner.2 6 The General Counsel contends that Respondent, by Farmer, created the impression among its employees of surveillance of said employees' union activities by advising them it was aware of their organizational efforts and which employees were involved. Respondent's defense to this issue was essentially an attack on the credibility of the witnesses. Neither Null nor Garner, who testified, testified on the issue. Respondent's answer also attacked the issue on the question of agency, contending that Foreman Farmer and others were acting as agents of the Union. I am persuaded that the witnesses, Lanny Choate, Farmer, and Porter, were credible witnesses as to this issue. As to the agency defense, there is no evidence to reveal that Farmer was trying to create an issue. Rather, I am persuaded that Farmer truthfully reported what had occurred. Considering this, I am persuaded that the employees would construe the effect of the remarks reported as an inherent threat of discharge because of union activity. It is clear that Spangler, Null, and Garner did not intend their conversation to be repeated and, therefore, did not intend by their remarks that a threat be made to employees. The evidence as to what Garner said, however, reveals animus of a threatening nature. It is also clear that Foreman Farmer did not personally intend to be threatening employees because of their union activities. He did, however, truthfully repeat the effects of what he had heard. Under such circumstances, both Farmer and the employ- ees reasonably believed that they were correctly discussing company policy or position. Respondent is liable for such conduct because a supervisor originally made the threaten- 26 The facts are based upon a composite of the credited aspects of the testimony of Farmer, Choate, and Porter. Respondent, on cross-examina- tion, attempted to attack Farmer's credibility by use of inconsistent statements in a pretrial affidavit. I have considered this, but considering the participation of Farmer as a counion adherent, I am persuaded that he spoke a great deal about such conversation and find it reasonable that he might have confused who he talked to or might have forgotten at times who he had talked to. Similarly, I consider the deviations of Choate's testimony as to details and Porter's testimony compared with a pretrial statement to be somewhat normal under the circumstances. The testimony of the witnesses did not vary with respect to the references to Spangler, Null, and Garner's participation. There was variance as to whether certain other supervisors ing remarks which were conveyed by another supervisor to employees. It is clear that such conduct interfered with and restrained employees in the exercise of their Section 7 rights and is violative, as a threat, of Section 8(a)(1) of the Act. Such has not been specifically alleged in this case. However, similar conduct is alleged to have been engaged in by Foremen Brown and Darwin Dale Choate. I find hereinafter that Foreman Brown made threats of discharge in violation of Section 8(aX)() of the Act and consider Farmer's conduct similarly violative of the Act and supportive of the remedy used for such violative conduct. As to the question of creation of impression of surveil- lance, I am not persuaded that the facts support such contention. Thus, it is clear that Foremen Spangler, Null, and Garner were not attempting to create an impression of surveillance of employees' union activities, and it is clear that Foreman Farmer was not attempting to create an impression of surveillance of employees' union activities. The question remains whether the facts inherently revealed a creation of an impression of surveillance. In my opinion, the employees who heard Farmer's recitation of what he had heard would not construe that Respondent was trying to create an impression of surveillance of their union activities. Nor do I believe that the employees would construe that the information received by Respondent flowed from surveillance. Rather, the remarks of "hearsay" and the totality of remarks approach gossip as to details but truth as to animus. Accordingly, it will be recommend- ed that the allegation of unlawful conduct as to alleged creation of impression of surveillance be dismissed. 27 Interrogation Toward the last of September or first part of October 1976, Foreman Bowden had a conversation with employee Tom Carman. The facts are revealed by the following credited excerpts from Carman's testimony. Q. (By Mr. Snow) Now, Mr. Carman, did you have any conversation with any supervisor about the Union? A. Yes, sir. Q. And when was this? A. Approximately the end of September or the first of October. Q. Could you tell us who that supervisor was? A. Boudreau Bowden. And where were you at when this conversation took place? A. In my assigned work area. were named as being involved in the conversation as well as whether Bishop was referred to in the conversation on September 28, 1976. Considering all of this, I discredit testimony inconsistent with the facts revealed in Farmer's testimony as to the September 28, 1976, events. 27 A parallel allegation of unlawful conduct by Foreman Brown concerning "creation of impression of surveillance" was withdrawn by the General Counsel in his brief submitted to the Administrative Law Judge. According deference to the General Counsel's litigation control, such withdrawal is allowed. Considering the fact that Lanny Choate had told Foremen Brown and Guest of his union activities, it would appear that he would not have a basis of belief that knowledge of his union activities was based upon surveillance. 1149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Sir? A. In my assigned work area. Q. And was anyone else present? A. No, sir. Q. Would you tell us what that conversation -just who said what, as best you can recall? A. Well, he approached me and asked me if I had a few minutes, and I told him that I did. And he proceeded to ask me, he says, "Well, what do you think about this mess?" This is Mr. Bowden. And I said, "What mess are you talking about?" He said, "Well, this Union mess out here." And I told him, I says, "If the Union is what it takes to get this situation straightened up out here, I'm in favor of it." And we proceeded to discuss what the problems were on the job. Contentions and Conclusions The General Counsel contends and Respondent denies that the Respondent, by Bowden, engaged in unlawful interrogation of an employee as to union interests in violation of Section 8(a)(l) of the Act. Considering the facts, the lack of evidence to reveal a legitimate need for such interrogation, and the lack of assurances of nonreprisal, I conclude and find that the interrogation of Carman by Foreman Bowden constituted conduct violative of Section 8(a)(1) of the Act. On or about September 29, 1976, Lanny Choate had conversations with Foreman Guest and General Foreman Brown concerning his support of the Union.28 In the first conversation with Guest, Lanny Choate told Foreman Guest that he was a union organizer, that he had heard the Company knew about it and was fixing to fire him, that he (Guest) had treated him well, that he didn't want Guest to get caught in the crossfire, and that he was informing Guest so that he wouldn't be caught unaware. Later, Lanny Choate spoke to General Foreman Brown, with Guest being present, and repeated to Brown in effect what he had told Guest. General Foreman Brown told Choate that he was favorable to the Union and would also like to sign a union card. Lanny Choate did not have a union card at that time, but later furnished a card to Brown who signed it. During the conversation between Brown and Choate, Brown told Choate that he was a good worker and that before he would run him off (fire him), the Company would have to fire him (Brown) also. Later, during the afternoon of September 29, 1976, Project Manager Lampton had a conversation with General Foreman Brown about Lanny Choate. What occurred is revealed by the following credited excerpts from Lampton's testimony: 29 2s The testimony of Brown and Choate fixed the timing of events as September 28, 1976. It is clear, however, that the conversations between Lanny Choate, Guest, and Brown occurred after he had heard from Farmer about the conversation Farmer heard and engaged in with Foreman Spangler, General Foreman Null, and Electrical Superintendent Garner set forth previously. Considering the timing of events, I fix the time of Lanny Choate's conversations with Guest and Brown to be on September 29, 1976. A different timing, as long as in sequence, would not affect the results in this case. 29 Lampton was a more impressive witness than Brown. I credit his testimony over Brown's where in conflict. A. Yes, sir. I advised him that it had been brought to my attention that Lanny Choate, who was an instrument fitter, was actively soliciting in the Electrical Department to get cards signed for the IBEW. Q. All right, sir, and what action did you request or instruct him to take? A. I told him you could not fire a man for that kind of activity; but if he is running all over the job soliciting, he can't be performing the work that he is supposed to be performing; and if he is actually doing this and not working for us, then he needs to be terminated. General Foreman Brown construed Lampton's remarks as a message to fire Lanny Choate because of his union activity but on the pretext that he was out of his work area. Threat of Discharge On September 29, 1976, in the evening, or on the morning of September 30, 1976, General Foreman Brown had another conversation with Lanny Choate. What occurred is revealed by the following credited excerpts from Lanny Choate's testimony. 30 Q. All right, sir. Did Mr. Brown, if the general foreman, Sarge Brown - did he ever have anything to say to you about his conversation with Mr. Orville Lampton? A. Yes, he did. Q. And what did he tell you about his conversation with Mr. Lampton? A. Well, while I was working he came to me and told me that I had been correct in what I had said, because Mr. Lampton had come and got him and took him for a ride in his car, and had informed him that I was really a union organizer; that he didn't want any on the job, and he was going to have to fire me, but it was against the law to do that, so he told him to find another reason to fire me. That is what Mr. Brown told me. Contentions and Conclusions The General Counsel contends, and Respondent denies, that Respondent, by Foreman Brown, on September 29, 1976, threatened employees with discharge and other reprisals if they continued their union activity. Respondent argues that Choate's testimony of what Brown related differs from what Lampton had told Brown. Indirectly, it appears that Respondent raises an "agency" question as to Brown. Considering all of the foregoing, I conclude and find that Respondent, by Brown, violated Section 8(a)(l) of the Act 30 The facts are based upon the credited testimony of Lanny Choate. With respect to Choate's testimony as to another event, the circumstances preceding his discharge, Respondent argues that Choate's testimony reveals an inconsistency as to whether he told Brown about going for the "haul truck." A careful study of the questions and answers reveals no inconsisten- cy. Rather, what Respondent construes as an inconsistency was an answer to a question as to whether Choate had argued with Brown about the reason for his discharge. 1150 H. B. ZACHRY COMPANY by conduct of threats of reprisal because of union activity. It is clear that Brown construed Lampton's remarks differently perhaps than intended. Brown's remarks to Choate, however, clearly were violative. Remarks made by a supervisor in such circumstances are clearly attributable to Respondent, even if Brown himself did not personally want to threaten Choate or discourage union activity. Brown, who exhibited support for the union, was not, similar to Darwin Choate, Farmer, and Grissom, part of the union's organizing committee. A respondent is liable under such circumstances for statements made by supervi- sors of a threatening nature relating to union activity. In sum, I conclude and find that Respondent, by Brown, on or about September 29, 1976, violated Section 8(a)(1) of the Act by threatening employees with discharge because of their union activities. 31 The Discharge of Lanny Choate On September 30, 1976, General Foreman Brown discharged Lanny Choate for the assigned reason of leaving his work area. Lanny Choate is a journeyman electrician and a journeyman instrument fitter. He commenced work on the Zachry job on June 20, 1976, and worked as a journeyman instrument fitter until his discharge on September 30, 1976. Lanny Choate is the brother of Foreman Darwin Dale Choate and journeyman electrician William Choate. All three and several other employees are contended to have been unlawfully discharged in this case. Lanny Choate was on the Union's organizing committee and was active in the union campaign until his discharge. Lanny Choate's work as an instrument fitter brought him in contact with various electricians at various points on the Zachry project. From September I to September 30, 1976, Lanny Choate spoke to approximately 12 electricians about signing union cards and secured 5 or 6 signed cards from employees. It is clear that some of this activity occurred during worktime and not on breaks or at lunchtime. As has been indicated, Respondent was aware at least by September 28, 1976, of Lanny Choate's activity on behalf of the union. As also has been indicated, General Foreman Brown had indicated to Lanny Choate that Respondent was seeking a reason to discharge him because of his union activity. Before this, Foreman Farmer had repeated a conversation he had heard and participated in wherein the effect of such conversation was that Lanny Choate's union activity was known and that union activists would be discharged. On September 29 or 30, Foreman Guest assigned Lanny Choate a job wherein he would use approximately 5 or 6 helpers. Guest told Choate that the job was a hot job and needed to be performed fast. On September 30, 1976, Lanny Choate was engaged in carrying out the job assigned by Guest. In carrying out such job there arose a need to use a haul truck. In 31 Respondent's credibility argument wherein it is pointed out that Lanny Choate was the only witness presented who testified as to this issue has been considered. I am persuaded, however, that Choate was a credible witness and credit his testimony. As previously stated, the testimony concerning Foreman Farmer's conversation with employees about the midmorning Choate and a helper went around the jobsite looking for the haul truck. The truck had not been found by lunchtime. After lunchtime Lanny Choate was prepar- ing to go to look for the haul truck. At that time General Foreman Brown came up and told Choate in effect that the time had come for his discharge. Choate told General Foreman Brown at the time that he was going to look for the haul truck. A short time later Brown prepared Choate's termination slip wherein it was indicated that he was discharged for being outside his work area. Choate made no protest as to the assigned reason because he considered it futile as a result of the conversation he had had with General Foreman Brown on September 29, 1976. I find it proper at this time to set forth a discussion of Respondent's work rule or policy regarding employees staying in their work area. It is reasonably obvious that on the large project involved in this case the work area for an employee involves where the work is being performed or where an employee has to go to get materials, equipment, or supplies needed to perform work. Prior to October 18, 1976, Respondent had no expressed written rules or policy about employees staying in their work area. However, the overall evidence and General Foreman Brown's testimony make it clear that supervisors knew that if an employee was not performing his duties and was staying out of his work area, a supervisor could fire such employee. General Foreman Brown, in fact, fired an employee named Crittenden on September 14, 1976, in part for staying out of his work area. There is no evidence that Crittenden was fired at such time because of a change of policy. I note, however, that this discharge occurred on September 14, 1976, after management had had some labor relations seminars. Considering Brown's testimony as a witness, however, I am persuaded that if there had been a policy change at such time, he would have so testified. In sum, I am persuaded that Respondent's unwritten policy envi- sioned employees staying in their work area of responsibili- ty, including as part of the work area locations they had need to go to for tools, materials, or supplies to perform their job. Apparently, before the events of this case there had been little need for general reference to requiring employees to stay in their work area. In early October, 1976, manage- ment commenced telling the foreman to have employees to stay in their work area. I am persuaded that such instructions did not specifically refer to the fact that when employees had to go for materials or supplies that on such occasions employees would be in their work area. It is obvious, however, that management did not mean to impede the employees in carrying out necessary work. It is also clear that the foremen and the employees would know that Respondent did not intend a rule to impede work. I am persuaded that because of the employee union interests and/or employee desire to talk at times concerning the Union and/or other matters, the discharge issues that came up, and the threats of discharge that the contended interpretations of an extremely restricted rule arose as a conversation he heard and participated in with Foremen Spangler, Null, and Garner is considered as background support for the remedy of such violative conduct. The peculiar facts relating to this conversation do not add weight to the question of union animus relevant in this case. 1151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of rationalization. The problems of a work-assigned area rule on a project as involved as the project herein raise a question of argument almost at any time of desired enforcement. The possibility of pretextuous use of such a rule increases the possibility of argument. Thus, an employee who was outside of his work area and not involved in obtaining work materials, supplies, or tools, etc., could always argue or find a reason to the effect that he was on his way to get tools, materials, supplies, etc. On the other hand, Respondent could try to use the rule in a restrictive way and believe or argue that the employee was not legitimately going about his task. Considering the climate of the events, I am persuaded that the employees, foremen, and management argued about the interpretation of the rule and that the rule in its full and real intent was ultimately made clear, that such was not, however, a rescinding of the rule. Contentions and Conclusions The General Counsel contends that Respondent discri- minatorily discharged Lanny Choate on September 30, 1976, because of his union activities. Respondent contends that General Foreman Brown discharged Lanny Choate because he was outside of his work area. The real question is what was General Foreman Brown's motivation in the discharge of Lanny Choate on September 30, 1976.32 Respondent's cross-examination of Brown and Choate was directed at establishing that the discharge of Choate was contrived and in effect that the testimony of the witnesses was contrived. I have carefully considered the testimony of the witnesses and all circumstances in determining the facts. I note that Brown indicated to Choate on September 28, 1976, that he favored the Union, that Brown later appeared to change and wanted to please the Company by discharging union adherents, that Brown later quit his job for Respondent around October 12, 1976, and that the Union had promised to let him in the Union if he gave a statement to the NLRB. I also note that on October 6, 1976, Brown called Choate and related what he said Piping Superintendent Bentley had said regarding the firing of union adherents. I am persuaded that Brown got caught in the crossfire between the Company and the Union and that, in effect, for a while he played both sides and was pressured by the facts. The testimony of Brown and Choate appeared in conflict as to whether Brown caught Choate out of his "work area" or not. Choate's testimony on such point appeared more complete, and I credit such testimony. However, whether Choate was in or out of his work area at the time of the discharge is not of great importance. The real question is that of Brown's motivation for the discharge. I am persuaded from all of the facts that General Foreman Brown construed that he was instructed to fire Lanny Choate because of his union activity but on the 32 I have carefully considered Brown's credibility, his giving of a statement to the NLRB after assurances from the Union that he could become a member, and the totality of the facts. I found Lanny Choate to appear to be a very truthful witness. Considering this and the facts as found as a result, I find that Brown's testimony in the context of such facts is credible, and I believe and credit his testimony in support of the facts found. alleged basis that he was out of his work area. In answer to a question by the Administrative Law Judge, Brown testified that he discharged Choate for union activities, that this was his reason. Considering this, I am persuaded that General Foreman Brown discharged Lanny Choate on September 30, 1976, because he believed he was following management's instructions to discharge Choate because of his union activities but on the alleged basis that he was out of his work area. Such conduct is violative of Section 8(a)(3) and (1) of the Act. It is so found and concluded.3 3 On October 1, 1976, General Foreman Brown and General Field Superintendent Schad had a conversation about Lanny Choate. Schad asked Brown what kind of worker Lanny Choate was and told Brown that he had seen him standing around and doing nothing. Schad also told Brown that Choate had been organizing for the Union. Brown told Schad that he didn't have to worry, that he had discharged Choate. Schad asked Brown what was the reason he had discharged Choate. Brown told Schad that he had discharged Choate because he wasn't staying in his work area and performing his job.34 On October 1, 1976, Foreman Grissom and Electrical Superintendent Garner had a conversation. Garner asked Grissom what he knew about the union deal out there. Grissom told Garner that he didn't know much about the union deal, that he wanted to know more, that he was 100 percent for the Union, and that he wanted a card. Garner turned and walked off. On October 1, 1976, General Foreman Brown spoke to Electrical Superintendent Garner. Brown told Garner that he had terminated Lanny Choate, that Garner's worries were over. Garner told Brown that his worries weren't over, that there were three or four more out there that they had to get rid of, and that one of them was a foreman. On October 1, 1976, General Foreman Null advised Foremen Darwin Dale Choate, Farmer, and Grissom that they were to tell employees at the Monday morning safety meeting that they had to stay in their work area. The question of Respondent's work area policy and the confusion arising from not being more specific in spelling out the full ramification of the rule has been discussed above in the section concerning Lanny Choate's discharge. Later, after work, Foreman Dale Choate told employees Porter, Lofton, Carman, and Spencer about the announce- ment in effect of a work rule requiring employees to stay in their work area. Alleged Threats The facts are clear that on October 1, 1976, and later, Foreman Darwin Dale Choate, as indicated above, told employees of the work rule relating to employees having to stay in their work area or they would be terminated. It is also clear that Foreman Darwin Dale Choate made it clear that it was his personal opinion that the Company might 33 The facts are based on a composite of the credited aspects of the testimony of Brown and Schad. Testimony inconsistent with the facts found is discredited. 34 The reason set forth in effect on the termination slip for Lanny Choate. 1152 H. B. ZACHRY COMPANY use the rule as a means of discharging known union supporters. Contentions and Conclusions The General Counsel contends that the statements by Foreman Choate referred to above constituted threats of discharge violative of Section 8(aXl) of the Act. Respon- dent contends that in the circumstances of this case Foreman Choate was not acting as its agent and that the employees would construe that Choate was not acting as its agent for such statements. I find merit to Respondent's contentions. It is clear that concerning the question of union organizing the employees would consider Choate as one of them even though he was a foreman. Unlike the statements of Farmer, alluding to specific statements by higher supervision and other foremen unallied with the union effort, it is clear that Foreman Darwin Dale Choate was speaking as a friend, expressing an opinion, and not expressing company policy concerning discriminatory discharge of employees. Ac- cordingly, the allegations of unlawful threats by Foreman Darwin Dale Choate will be recommended to be dismissed. On October 4, 1976, Foreman Darwin Dale Choate and Grissom (and apparently Farmer) told their respective crews that there -was a work rule now in effect requiring employees to stay in their respective work area or they would be terminated. The Discriminatory Discharge of Porter On October 4, 1976, General Foreman Null discharged journeyman electrician Porter for the assigned reason of being out of his work area. Porter was an experienced journeyman electrician, commenced working for Respondent in May, 1976, and worked as a journeyman electrician until his discharge on October 4, 1976. Porter received no complaints about his work during his time of employment. As previously indicated, Porter was an active union supporter and a member of the union organizing committee. As of September 28, 1976, as revealed by the conversation that Foreman Farmer participated in and heard involving Foreman Spangler, General Foreman Null, and Electrical Superintendent Garner, it is clear that Respondent believed Porter to be active in the union effort. During the period of time September I to October 4, 1976, Porter talked to 15-20 employees about the Union, secured employees' signatures on 8 or 9 cards, and attended union organizational committee meetings. On October 4, 1976, Porter received instructions from Foreman Darwin Dale Choate concerning staying in the work area assigned or being subject to termination. On October 4, 1976, Porter needed some blueprints. In hunting for them, he was advised that Danny Morgan, a helper, might have them. Porter went to where Morgan was working and talked to him about the blueprints. At such time Porter also engaged in talk with Morgan and several other employees about the Union. General Foreman Null SS The facts are based on a composite of the credited aspects of Spencer's and Schad's testimony. Testimony inconsistent with the facts found is observed the conversation and that Porter was away from the work area where he was assigned to be working. General Foreman Null came up and asked Porter if he had any reason to be in the area. Porter told Null that he had no reason, that he was just shooting the bull. Null asked the other employees if there were any reason for them to be standing and talking. The employees indicated that they had no reason to be standing and talking. Null proceeded to fire Porter for the alleged reason of being out of his work area. No action was taken against the other employees, one or two of whom were journeymen. I note that Porter on the occasion of his discharge did not tell General Foreman Null that he was seeking blueprints, I also note that when General Foreman Null told Foreman Darwin Dale Choate that he had fired Porter for being out of his assigned work area, Choate did not allude to the fact that Porter was seeking blueprints; this, despite the fact that Foreman Choate apparently knew that Porter was seeking blueprints. The real issue again involves the question of motivation. It is clear from the fact, whether Porter was searching for blueprints or not, that Foreman Null had cause to believe that Porter was outside of his work area, even under a correct interpretation of such rule. The facts in this case reveal that Porter was an active union adherent, that Respondent believed he was an active union adherent, and that Respondent had an expressed union animus of a discriminatory nature concerning union adherents as revealed by statements of Garner on September 28, 1976, to Foremen Spangler, Farmer, and Null, and to Foreman Brown on October 1, 1976. Considering this, the disparate treatment of Porter, as compared to the treatment of Morgan and a journeyman or two involved in the discussion on October 4, 1976, with Porter, takes on meaning. The facts in this case reveal that Respondent's concern for failure of production was because of alleged standing around, bulling, talking, and being out of the assigned work area. The disparate treatment accorded to Porter as regards this incident and as compared to the treatment of Morgan and the other employees, persuades that General Foreman Null's discharging of Porter was discriminatorily motivated because of belief of his union activities. Accordingly, such conduct is violative of Section 8(a)(3) and (1) of the Act. It is so concluded and found. On October 4, 1976, the Union filed with the NLRB a representation petition concerning the electrical employees. On October 5, 1976, the Union filed an unfair labor practice charge concerning the discharge of Lanny Choate, allegedly on September 29, 1976. Interrogation of Spencer by Schad 35 On or about October 5, 1976, Field Superintendent Schad and journeyman electrician Spencer had a conversa- tion. In such conversation Spencer and Schad discussed the discharges of several employees, including Jerry Porter. Spencer told Schad in effect that he believed he was going to be discharged because of his union activities. Schad asked Spencer if there were any justification for such belief. discredited. In general, I found Spencer's testimony more complete and believable as to details. 1153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spencer told Schad there was no more justification for sending him out (firing) than for sending anyone else out. Schad asked Spencer if he had been talking about union activities. Spencer told Schad that he had not done more than voice an opinion if anyone asked him. Schad told Spencer that the only reason he would be fired was if he didn't do his job. Contentions and Conclusions The General Counsel contends that Respondent, by Schad, engaged in unlawful interrogation of Spencer as to his union activities. Respondent denies that unlawful interrogation occurred. Considering the facts in total context and Schad's assurance that Spencer would only be fired if he didn't perform his work, I am persuaded that the evidence does not reveal interrogation of the type which interferes with, restrains, or coerces employees in the exercise of Section 7 rights and within the meaning of Section 8(a)(l) of the Act. Accordingly, it will be recommended that the allegations of unlawful conduct in such regard be dismissed. Interrogation; Solicitation to Spy On or about October 5, 1976, apparently an hour after Spencer had his conversation with General Field Superin- tendent Schad, Project Manager Lampton brought Chief Security Guard Thornton to where Spencer was working. Thorton and Spencer proceeded to have a conversation outside of Lampton's presence. As background, it should be noted that Spencer is a member of the Muskogee County sheriff's patrol and in the past had offered to assist security in the line of police work. As background, it should also be noted that there was much rumor and conjecture among the union adherents that Gary Bishop had reported names of union supporters to management. Apparently around this time, threats had been painted on a latrine indicating a message to Bishop that "he was a dead son-of-a-bitch." Based upon the September 28, 1976, conversation engaged in by Foremen Farmer, Spangler, Null, and Garner, it is clear that Respondent had reason to believe Spencer to be an active union adherent. Spencer's conver- sation with Schad, however, revealed Spencer's concern that he might be fired for union activities. It also revealed that Spencer was trying to convey that he wasn't extremely active. Considering this, I am persuaded that Respondent believed union adherents to be involved in the threat to Bishop and related matters of security and believed Spencer to be a good source to obtain information thereto. What occurred is revealed by the following credited excerpts from Spencer's testimony and other facts as found: A. Mr. Thornton told me, when we first started our conversation, that he had been to talk to me because J. B. Garner - that they thought I was involved in union activity, and that J. B. Garner had told Johnnie, or had 36 Thornton testified in denial that he asked Spencer questions about employee union activities or that he solicited Spencer to report on such union activities. Considenng the totality of facts and Spencer's demeanor as asked Johnnie if I was not an - one of his men from Muskogee, and if I was, to call me off and to tell me to get out of it. Q. And that was the way the - the way the conversation- And there really wasn't any discussion of your police work or your assistance in stopping any threats or violence on the project, or anything like that? Whatever mention of that was purely secondary? Is that true? A. No, sir. It was - when Thornton approached me, he told me that Garner had told him that he thought that I was one of his men, and that I was involved in the union activities, and that he wanted me to get out of it. And for him to come up there and see if he couldn't get some information from me. Then we went into a conversation that he asked about the threats and union activity, and if I would tell him who was involved in it. Spencer also credibly testified to the effect that Thornton questioned him as to who was involved in the union organizing. Spencer told Thornton in effect that he did not know all if he knew any of the persons. Thornton then asked if Spencer would snoop around and if he found out, would he let him know. Spencer told Thornton that he would not do so. Thornton assured Spencer that no one would know about his information but Thornton and Spencer. Spencer told Thornton that he did not have a right to know, that it was the employees' personal prerogative if they wanted a union. Thornton asked Spencer if he were in the Union. Spencer replied to Thornton that he had an inactive Operating Engineers book. Thornton then told Spencer that he needed to know who was involved in the Union because of the threats and things being done. Spencer told Thornton that he didn't know of any threats. Thornton asked Spencer if he became aware of threats would he let him know. Spencer told Thornton that if he would hear that someone was going to receive bodily harm or if there were to be destruction of property or anything to do with the job, he would be the first to try to stop it.36 Contentions and Conclusions The General Counsel contends and Respondent denies that Respondent's agent, Thornton, unlawfully questioned Spencer as to his and other employees' union activities, and solicited Spencer to spy on and to make reports on employee union activity. Considering all of the facts, I am persuaded that the facts establish such unlawful interrogation, unlawful request to spy on union activities, and unlawful soliciting of an employee to report on the union activities of other employees. I am persuaded that Respondent was con- cerned over threats and potential damage, that Respondent believed Spencer would be a source of information as to whom they should look to as being behind such threats and potential damage. Thus, I do not believe that the goal in mind was a solicitation of information concerning union a witness, I am persuaded that Spencer's testimony on such points should be credited. Considering the logical consideration of facts, I have set the facts in the sequence I am persuaded occurred. 1154 H. B. ZACHRY COMPANY activity in general. However, I am persuaded that Thorn- ton, an agent of Respondent, believed that the potential wrongdoers were union adherents and that his field of suspects would be limited and narrowed if he had such information. Because of this, I am persuaded that his questioning of Spencer and his request to Spencer to snoop and to make reports on employee union activity exceeded the permissible bounds of conduct. Accordingly, I con- clude that Respondent, by Thornton, violated Section 8(a)(1) of the Act by interrogation of Spencer as to employee union activity and by requesting Spencer to spy on and to report on union activities of other employees. It is so concluded and found. Threat of Discharge About a week after General Foreman Brown had terminated Lanny Choate, Brown had another conversa- tion with Choate as is revealed by the following credited excerpts from Lanny Choate's testimony. A. About a week after I was terminated, well, Mr. Brown called me on the phone and asked me how things were going; wanted to know how I was getting along. Q. Now, this is Sarge Brown? A. Yes, that's Sarge Brown. Q. OK. A. During the course of the conversation he told me that he had been present at a meeting called by Richard Bentley, in which he informed all of the supervisors that anybody suspected of holding a union card or being in sympathy was to be fired. But he said by the end of the day the information had gotten to all the hands there; so the next morning, I think he called another meeting and told all of his hands that that was a lie; that there was no truth to that rumor. But as soon as that was over, he called another meeting of his supervisors again, and chewed them out for letting the information leak out, and told them to go ahead and follow his original instructions. That was what the - Sarge Brown said the content of the meeting was. Although Choate was a discharged employee at the time, the facts found herein reveal him to have been a discriminatorily discharged employee in violation of Section 8(a)(3) of the Act. It is thus clear that Choate was an employee within the meaning of Section 8(a)(3) of the Act. It is also clear that Foreman Brown is an agent of Respondent and that his remarks constituted in effect a threat of discharge of employees because of their union activity. Ordinarily, one would be required to make a finding that such conduct violated Section 8(aX)() of the Act. Since I have already made a finding that Respondent, by Foreman Brown, threatened employees with discharge because of union activity and that such conduct is violative of Section 8(aXl) of the Act, and since the remedy for such conduct would also remedy the conduct alleged unlawful herein, I do not find it necessary to make a finding of 31 Apparently at this meeting or another, Foreman Gnssom mentioned that he was in favor of the Union. Lampton told Gnssom that he was not concerned about the Union. unlawful conduct or to establish a remedy for this conduct alleged to have occurred on October 6, 1976. Part of my reasoning in finding it unnecessary to make a finding as to the alleged conduct on October 6, 1976, by Foreman Brown is as follows. Brown was a witness presented by the General Counsel in this case. Brown testified as to only one meeting wherein Piping Superinten- dent Bentley allegedly gave instructions to supervisors to make unlawful discriminatory discharges. I do not credit Brown's testimony on such point. Rather, I credit Bentley's testimony as to an "ass eating" meeting around October 1, 1976, as to hearing that there was a rumor he had instructed foremen to discriminatorily discharge union adherents, and as to having a meeting with his men and telling them that the rumor was false, and that he did not change his instructions to his foremen. I am persuaded that Brown got carried away in his talk with Choate and embellished the truth with speculation. Accordingly, since additional remedy is not required, I find it best not to make a finding as to the alleged unlawful threat on October 6, 1976, by Foreman Brown. Apparently, on October 6, 1976, Vice President Ham- mond, in charge of labor relations, met with superinten- dents and foremen and admonished them as supervisors not to help organize the Union. On October 7, 1976, Project Manager Lampton and Electrical Superintendent Garner met with most of Gar- ner's general foremen and foremen. What occurred was in effect a "bitch-gripe" session designed to find out problems concerning production and to get the production back on the road. It appears that the foremen pointed out problems concerning drinking water, toilets, tools, complaints con- cerning being chewed out at meetings, and having to have slips for absences for I day. After this meeting Electrical Superintendent Garner met with the foremen's crews without the foremen for a similar type session. At a meeting with Foreman Darwin Dale Choate's crew, Garner explained the rule concerning staying in the work area as including an exception thereto when an employee had to go elsewhere for tools and supplies. Garner told the men in effect that they could have coffeebreaks, etc. Garner was asked about what would happen if the job went union. Garner told the employees that he did not know. Garner told the employees he wanted to know why there was dissension and why they wanted union representation. On October 8, 1976, Project Manager Lampton met with all of his electrical supervisors. In effect, supervisors were told to go back and tell employees that their problems would be solved. The foremen of the crews, including Darwin Dale Choate, Farmer, and Grissom, indicated that they would go back and tell the crews of the Company's actions and make an effort to get the desired production.37 Later, when management asked foremen about the results, Choate and others related in effect that the employees had a wait-and-see attitude. 1155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alleged Unlawful Discharges of Foremen Choate, Farmer, and Grissom On October 14, 1976, Respondent discharged Foremen Darwin Dale Choate, Chester Farmer, and Billy D. Grissom. The facts relating to the activity of the said foremen in the union organizational effort, their statements to other foremen or management about their union beliefs, instructions given to said foremen concerning the direction of their crews, the problems with production, and the sequence of events leading to their discharge, have previously been set forth. Additionally, it might be pointed out that Foreman Darwin Dale Choate was a brother to Lanny Choate and William K. Choate, who are alleged discriminatees in this case. Employees Porter, Spencer, and Carman, all who were revealed to Respondent to be union supporters and who are alleged discriminatees, worked under Foreman Darwin Dale Choate. Statements in the record relating to the use of pretrial affidavits given to the NLRB reveal that Foremen Choate and Farmer gave affidavits to the NLRB on October 12, 1976. There is no evidence or statement to reveal whether or not Foreman Grissom gave an affidavit to the NLRB on October 12, 1976. Nor is there any evidence to reveal that Respondent had knowledge of Grissom's having given an affidavit to the NLRB prior to his discharge on October 14, 1976. There is evidence to reveal that Respondent had decided to discharge Foremen Choate, Farmer, and Grissom, and that on October 13, 1976, Respondent received notice that Foremen Choate, Farmer, and Brown had given affidavits to the NLRB and delayed the discharge of Foremen Choate, Farmer, and Grissom for consideration of the implications of such action. Contentions and Conclusions The General Counsel contends and Respondent denies that Respondent discharged Foremen Choate, Farmer, and Grissom because said supervisory employees failed or refused to carry out instructions of Respondent to harass, find fault with, and terminate employee union supporters on the job, or to otherwise interfere with, restrain or coerce employees in the exercise of their rights under Section 7 of the Act. The question of the lawfulness or unlawfulness of the discharges of Foremen Choate, Farmer, and Grissom concerns two issues. The first issue is whether Respondent discharged Foremen Choate, Grissom and Farmer because they gave affidavits to the NLRB on or about October 12, 1976. The second issue is whether Respondent in effect directed the foremen to harass and terminate union supporters. As to the first issue, the facts clearly reveal that the Respondent had decided to fire Foremen Choate, Farmer, and Grissom before it had knowledge that any of the three had given affidavits to the NLRB. Accordingly, the facts do not reveal that Respondent has interfered with employ- ee rights by discharging foremen or supervisors for giving affidavits to the NLRB. As to the second issue, the facts clearly reveal that the Respondent was having production problems on the job. The facts also reveal that although Respondent emphasized a rule requiring employees to remain in their work area, Respondent never gave Foremen Choate, Grissom, and Farmer instructions to harass or terminate employees because of their union activities. Nor, under the circum- stances of the case, as a blanket matter, has it been established that the emphasis of a work rule requiring employees to stay in their work area was for discriminatory reasons. It is clear that Respondent was having a work production problem, and the rule was designed to see that worktime was for work. Employees have a right to self-organizational activities, but such right does not insulate them from nondiscriminatory rules relating to maintenance of produc- tion. In the past, the unwritten work area assignment rule had been in effect but apparently seldom needed. The production problems in September 1976 emphasized the need for reiteration of the rule. The nature of the vast work project and job needs apparently created some uncertainty of what the work area rule meant. For this reason there was conclusionary testimony as to the rescinding and reitera- tion of the rule. I am persuaded that what some witnesses viewed as a rescinding of the rule was in effect a spelling out of the rule with the necessary meaning as applied to work on the project. In sum, the facts do not reveal that Respondent directed the foremen to harass and terminate employees because of their union activities. The facts do reveal that there were continuing problems. The facts also reveal that Respon- dent in all probability was aware that Foremen Farmer, Grissom, and Choate were strong union supporters and probably believed that the continuing production problem may have resulted in Foremen from divided loyalty by the foremen. Supervisors' participation in union activity, however, is not protected by the Act. Considering the foregoing, it is concluded and found that Respondent's discharge of Formen Choate, Grissom, and Farmer is not violative of Section 8(a) 1) of the Act. The Discharges of Spencer and Carman Jim Spencer, journeyman electrician, and Tom Carman, his helper, were discharged on October 18, 1977. The assigned reason on Spencer's termination slip was as follows: "No job progress. Does not perform his duties. Lack of interest and job responsibility." The assigned reason on Carman's termination slip was as follows: "No job progress. Lack of interest and initiative. Does not [do] his duties as expected." Spencer and Carman worked under Foreman Darwin Dale Choate until Foreman Choate was terminated on October 14, 1976. On or about October 15, 1976, Foreman Ben Weaver was placed over Foreman Choate's former crew. Thus, on October 15, and for several hours on October 18, 1976, Spencer and Carman worked on the crew of Foreman Ben Weaver. The facts reveal that Spencer was an active union adherent and organizer, that he in effect was in the initiating movement, was on the original 5 of the union organizing committee, and that from September I to October 18, 1976, Spencer talked to approximately 75 employees about the Union and successfully got about 12 1156 H. B. ZACHRY COMPANY employees to sign union cards. It is clear that Respondent knew of Spencer's union sentiments. Thus, on September 28, 1976, in a discussion between supervisors, including General Foreman Null and Electrical Superintendent Garner, Spencer was named as one of the three employees believed to be involved in union activities. Following this, in early October 1976, Spencer's union sentiments were made known to both General Superintendent Schad and Chief Security Guard Thornton. Spencer's conversation with General Superintendent Schad revealed a concern over getting discharged because of his union activities. Respondent apparently believed that Spencer's support of the union might be weakening, and through Chief Security Guard Thornton attempted to dissuade his support of the Union and to get him to become an informer, for the major purpose of ascertaining who might be behind some threats or potential damage to property. Spencer refused to participate in such request or to reveal the identity of union adherents. Carman was a supporter of the Union, signed a union card, talked to about 20-25 employees about the Union, and successfully got about 3 employees to sign union cards. In the last of September 1976, Foreman Bowden interro- gated Carman about his union beliefs, and Carman informed Foreman Bowden that he was in favor of the Union. There is dispute between Respondent's witnesses and Spencer and Carman as to whether they were "working" and performing their job in the sense of quantity of work product achieved on Friday, October 15, 1976. Respondent's witnesses testified to the effect that they observed Spencer and Carman standing around and not working, and that the quantity of work performed was minimal. Spencer and Carman testified to the effect that they did perform their work, that there were some obstructions, and that some work had to be pulled out to be done again. Considering Respondent's need for produc- tion, if Spencer and Carman's work was at the level testified to by the Respondent, I find it hard to believe that supervisors would not have spoken to Spencer and Carman at the time about their failure to work unless either Respondent was seeking a means to discharge Spencer and Carman or the two in fact were performing their work. Considering this, I credit Spencer and Carman's testimony over Respondent's witnesses Weaver, Null, and Garner as to whether Spencer and Carman were working properly. Respondent's policy concerning discharges at the time of the discharges of Spencer and Carman, unlike its earlier policy, was to have discharges reviewed. After a review of facts related by supervisors concerning the discharges of Spencer and Carman, top management approved Foreman Weaver's request for the discharges of Spencer and Carman. It must be noted that such review did not contain an investigation of the facts or contentions presented by Spencer and Carman. On October 18, 1976, after about 2 hours work, Foreman Weaver told Spencer and Carman that they were terminat- ed and that General Foreman Null wanted to see them in his office. Spencer asked why they were terminated, and Weaver gave no reason for the termination. Spencer and Carman went to General Foreman Null's office. Later Null came in and told them in effect that they were fired because Foreman Weaver had said they were not doing their work. Spencer told Null in effect that Weaver was a lying "son-of-a-bitch," to get Weaver and he would tell Weaver to his face. Weaver was brought in, and Spencer told Weaver that they had been terminated, that he wanted to know what was going on. Weaver told Spencer that this was right, that Spencer and Carman had been terminated for not working. Spencer asked Weaver why he hadn't told him the reason out on the job. Weaver told Spencer that Spencer and Carman just didn't do the work. Spencer told Weaver that he was a "damn liar," that he and Carman had done their work, and had worked all day Friday. Weaver told Spencer that he had been standing around visiting with the pipefitters when he came by. Spencer told Weaver that on such occasion he had been waiting for material he had sent the helper for, that he had not been engaged in conversation. Weaver continued to tell Spencer that he and Carman had not been working. Spencer continued to tell Weaver that he was a liar. Before Spencer and Carman left, General Foreman Null told them that he hated to see them go, that either or both could call him for a personal recommendation for employment with any subsequent employer. Contentions and Conclusions The General Counsel contends that Respondent discri- minatorily discharged Spencer and Carman because of their union activities in violation of Section 8(aX3) and (1) of the Act. Respondent contends that it discharged Spencer and Carman for cause and not for reasons violative of Section 8(a)3) and (1) of the Act. Considering all of the facts, I am persuaded and conclude and find that the facts preponderate for a finding that Respondent discharged Spencer and Carman because of their union activities in violation of Section 8(aX3) and (1) of the Act. The facts reveal that Spencer and Carman both engaged in union activities, that the Respondent had reason to believe that Spencer was a strong union supporter and that Carman was a union supporter. Considering this and the evidence of union animus exhibited by statements of Electrical Superintendent Garner, the evidence of the discriminatory discharge of Porter, the failure of supervisors to point out to Spencer and Carman any alleged failure to work properly on October 15, 1976, at the time of observation thereof, I find it clear that Respondent's motivation in the discharge of Spencer and Carman was because of their union activities. Such conduct is violative of Section 8(aX3) and (1) of the Act. It is so concluded and found. On October 18, 1976, Respondent transformed its work area rule (relating to employees staying in assigned work areas, with such assigned work areas including areas wherein employees had to go for needed supplies and materials connected to their work) into a written rule. The Discharges of William K. Choate and Richard Lofton Respondent discharged journeyman electrician William K. Choate and his helper Richard Lofton on October 19, 1976. The assigned reason for termination on Choate's 1157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination slip was as follows: "Leaving Work area for Extended Time Periods. Does not perform his duties [too] much 'Horseplay.' " The assigned reason for Lofton's termination on his termination slip was "Leaving work area for Extended Periods with cause. Does not perform his duties." 3 8 William K. Choate is a brother of Lanny Choate and Foreman Dale Choate. All were involved in the union organizing effort in this case. William K. Choate was on the original organizing committee. From September I to October 19, 1976, Choate talked to some 12 or 15 employees about the Union and successfully got 7 or 8 employees to sign union cards. Choate also talked with Foreman Grissom, a fellow union organizing committee member. The facts reveal that it was well known by employees that all of the members of Grissom's crew had signed union cards. Bartley, who became foreman after Grissom was fired on October 14, 1976, was a member of the crew and clearly knew that Choate had signed a union card. Lofton signed a union card sometime in September 1976, and talked to three or four employees about the Union. At a meeting, apparently on October 7, 1976, Lofton told Electricial Superintendent Garner that he was Porter's half brother, that Porter had been fired for being out of his work area. It appears that Garner explained the work area rule in its fullest context and that employees would not be fired when getting materials or supplies.39 It is also clear that Foreman Bartley, Lofton's foreman at the time of discharge, was aware that Lofton, as all other employees on the crew, had signed a union card. There is a dispute as to whether William K. Choate and Richard Lofton were away from their assigned work area and that this caused their discharge. Without going into details, I find it sufficient to say that I credit the testimony which supports a finding of fact that Foreman Bartley went to where he thought Choate and Lofton should be, was told by an employee that Choate had said that he was going to the administration building to visit for a while, that Bartley went to locate Choate and Lofton, located Lofton and told him to get Choate and for both to come to get their termination slips. Bartley told Lofton that they were being terminated for being out of their work area and for not producing work. Choate and Lofton thereupon met with Bartley. What occurred is revealed by the following credited excerpts from Bartley's testimony: A. He left and went by and got Mr. Choate, and they came to precipitator 4A where I was, and I told Bill that they had been out of their work area for an extended period of time, and that they weren't producing the work that they should be producing, and I was going to have to let them go. Q. All right, sir, and did Mr. Choate say anything in response to this? A. Yes, he did. Q. What did he say? A. He said, "Thank you, Richard. Zachry needs another lawsuit anyway." 3a It is clear from the record that by inadvertence the word "with" was used instead of "without" on Lofton's termination slip. Contentions and Conclusions The General Counsel contends and Respondent denies that Respondent discharged William K. Choate and Richard Lofton because of their union activities in violation of Section 8(aX3) and (1) of the Act. Considering all of the facts, I am persuaded that the preponderance of the evidence does not reveal that Respondent discriminatorily discharged William K. Choate and Richard Lofton because of their union activity. It is clear that William K. Choate and Richard Lofton engaged in union activities and that Foreman Bartley knew at least that they had signed union cards. I am not persuaded, however, that their union activity was as strong as that of some of the other alleged discriminatees. It is also clear that there is strong evidence of union animus by Respondent in this case. There is also much evidence that Respondent had problems with production and work progress. Considering all of the facts, I am persuaded that the discharge of William K. Choate and Richard Lofton was because the Respondent thought the two employees were "goofing off." Accordingly, it will be recommended that the allegations of conduct violative of discharges of William K. Choate and Richard Lofton be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discharged Lanny Choate, Jerry Porter, Jim Spencer, and Tom Carman in violation of Section 8(aX3) and (1) of the Act, the recommended Order will provide that Respondent offer to them reinstatement to their jobs, and make them whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: 39 1 am persuaded that Lofton misunderstood the ramifications of the work area rule. 1158 H. B. ZACHRY COMPANY CONCLUSIONS OF LAW 1. H. B. Zachry Company, Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 384 of the International Brotherhood of Electrical Workers is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees Lanny Choate, Jerry Porter, Jim Spencer, and Tom Carman, Respondent has discouraged membership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 40 The Respondent, H. B. Zachry Company, Muskogee, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected concerted activities. (b) Threatening employees with discharge and other reprisals because of their union activities or protected concerted activities. (c) Coercively interrogating employees about their or other employees' union activities or desires. (d) Soliciting employees to spy on and to make reports on employee union activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Lanny Choate, Jerry Porter, Jim Spencer and Tom Carman immediate and full reinstatement to their * former positions or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay or other benefits suffered by reason of the discrimination against them in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's project at Muskogee, Oklaho- ma, copies of the attached notice marked "Appendix." 41 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by Respondent for 60 consecutive days thereafter, in conspi- cuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. 4o In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 41 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Lanny Choate, Jerry Porter, Jim Spencer, and Tom Carman immediate and full rein- statement to their former positions or if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay or other benefits suffered by reason of the discrimination against them. WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities. WE WILL NOT coercively interrogate employees about their or other employees' union activities. WE WILL NOT solicit employees to spy on or to make reports on employee union activities. WE WILL NOT threaten employees with discharge or other reprisals because of their union activities or protected concerted activities. 1159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act. H. B. ZACHRY COMPANY 1160