Meade Construction Co.

MEADE CONSTRUCTION CO., INC. Meade Construction Co., Inc . and Russell Hensley. Case 9-CA-8653 September 25, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 15, 1975, Administrative Law Judge John G. Gregg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that the evi- dence was insufficient to sustain the allegations that the Respondent threatened Russell Hensley with the loss of his job because of his activities as a union steward on behalf of the Union; or threatened Hens- ley with discharge because of his activities in concert with other employees to secure back wages which Hensley believed were due to him and to other em- ployees; or laid off Hensley for 2 days because of his activities as union steward and his engaging in the foregoing concerted activity for the purpose of col- lective bargaining or other mutual aid or protection; or discharged Hensley because of the foregoing ac- tivities, thereby interfering with, restraining, and coercing employees in the exercise of their rights pro- tected by Section 7 of the Act in violation of Section 8(a)(1) of the Act and thereby discriminating in re- gard to the hire or tenure of employment to discour- age membership in the Union in violation of Section 8(a)(1) and (3) of the Act. Accordingly, he recom- mended that the complaint be dismissed in its entire- ty. The General Counsel has filed exceptions to some of the above findings which, for the reasons hereinaf- ter set forth, we find meritorious. Hensley became a steward for the Union late in 1973, and as part of his duties he checked to see that employees were members of the Union. In March 1974, he checked the union status of employees at the Gallipolis, Ohio, job where Meade was the general contractor and Wells Electric was a nonunion sub- contractor. Hensley spoke to Wells' employees and was told that they were not union. He informed them 691 that, "In our contract any nonunion contractor that comes with the company has to join the union after 8 days." At or about the same time, or shortly thereafter, that the foregoing activity occurred, Hensley was laid off for 2 days by Hammond, general superintendent for Meade, who gave as the reason lack of work. Two days later, Hammond recalled Hensley stating that "We have a job for you. Come back to work." When Hensley reported back to work, he had a conversa- tion with Meade who allegedly told him that "if he did not quit meddling in the union affairs he was going to be fired." The facts relating to Hensley's discharge show that, during the middle and latter part of 1973, the Respondent performed certain renovation work on the Boyd County (Kentucky) Court House. Hensley worked on the courthouse job performing both la- borer and carpenter work, but was paid only labor- ers' wages. Laborers' wages were $4.77 an hour and carpenters' wages were $7.19 an hour. Hensley was told by one of the foremen that he had not been paid the right wage and he would have some backpay coming to him. Hensley began checking into the matter and found that under the terms of the con- tract Respondent entered into, to perform the Boyd County Court House renovation work, Respondent agreed to pay the prevailing carpenter wage rate for carpentry work. Hensley wrote to the Kentucky De- partment of Labor and asked it to investigate wheth- er he and two other carpenters were due additional pay for their work on the Boyd County job. Hensley also attempted to examine the contract entered into by Respondent and Boyd County. On an occasion in March 1974, Hensley went to the courthouse to see if he could examine the contract, but no one with au- thority was available and he was not able to see the contract at this time. While at the courthouse, Hens- ley spoke with the county jailer and apparently told the jailer that if he did not get the money he believed due him, he was going to picket the courthouse. The jailer reported this incident and the picket threat to Charles Meade, Respondent's president. Hensley was reprimanded at that time and threatened with discharge if he did something like that again. Hensley continued his activity going to other sources including the County Labor Board and to Commissioner Ross who on Friday, April 19, did permit Hensley to inspect the contract between the county and Meade under which Hensley had per- formed his work. On April 22, 1974, Hensley was discharged for what Meade deemed insubordination. Meade testi- fied: "He was asked not to get involved in Company policy because the discussion is already around the 220 NLRB No. 104 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City of Catlettsburg and a few places in Ashland that I was having some trouble with my men and couldn't control them." Meade stated that he had received a phone call from Commissioner Ross before discharg- ing Hensley, stating that Hensley called him at home as he (Ross) was getting ready for bed and "raised hell" about the contract. According to Meade, Ross told him that he better get control of his people or "they're sure going to hurt your business." Subsequent to Hensley's discharge, the Kentucky Department of Labor scheduled a hearing to de- termine if the Respondent was liable for additional pay to certain of its employees for the work they performed on the Boyd County job. The matter was apparently settled without a hearing and Hensley and at least one other employee of the Respondent received additional pay. On the above facts, the Administrative Law Judge found that Meade did not threaten Hensley with loss of employment and discharge, but that the Respon- dent warned Hensley that he would be discharged if he continued his activity of threatening and harass- ing county officials in what appeared to Meade to be a derogation of his relationship with these contract- ing authorities and obviously of potentially critical harm to his business . With respect to the temporary layoff of Hensley by Respondent, the Administrative Law Judge found that layoffs were a normal pattern in the Respondent's operations . Also, he found that the Respondent laid off Hensley on or about March 11, 1974, because of lack of work and not because of Hensley's activity as union steward, and that the dis- charge of Hensley was occasioned by the Respondent's reasonable reaction to a potential threat to its business arising from the behavior of Hensley pertaining to county officials . As the Gener- al Counsel did not except to the finding that Hensley was laid off on or about March 11, 1974, because of lack of work and not because of Hensley's activity as union steward, we shall adopt this finding pro forma. However, we do not agree with the finding of the Administrative Law Judge that Hensley's discharge was not a violation of the Act. The pertinent facts show that the Employer entered into a contract with a state governmental body which required that the Employer's employees performing work under that contract be paid a certain wage . The Employer paid certain employees performing the work something less than the wage required by the contract. Hensley discovered that he was not being paid the contract wage, and on behalf of himself and other employees requested the State to investigate the matter and also attempted to investigate the matter on his own. As a result of Hensley's activity, the State conducted an investigation which resulted in several employees, in- cluding Hensley, receiving additional wages for the work they performed under the contract. As a result of Hensley's investigation in attempting to ascertain the pay scale set forth in a contract for a job classifi- cation in which he worked in performing work under that contract, he was discharged. We find that Hensley's activity was clearly protected, concerted activity, as he was not acting alone but in concert with and on behalf of other employees. By threaten- ing Hensley with discharge and then discharging him because he was engaging in such activity Respondent violated Section 8(a)(1) of the Act.' Accordingly, we shall order that Respondent cease and desist there- from and offer Hensley full reinstatement with back- pay. CONCLUSIONS OF LAW 1. Meade Construction Co., Inc., a corporation at Catlettsburg, Kentucky, is a general contractor in the building and construction industry and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Russell Hensley on April 22, 1974, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guar- anteed in Section 7 of the Act, and has thereby en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By the foregoing, and by other specific acts and conduct interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor R6- lations Board hereby orders that the Respondent, Meade Construction Co., Inc., Catlettsburg, Ken- tucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge, or other reprisals, for engaging in union or concerted activities. (b) Discharging employees because they engage in 'G V R, Inc., 201 NLRB 147 (1973). MEADE CONSTRUCTION CO., INC. 693 concerted activities for their mutual aid and protec- tion. (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for their mutual aid and protec- tion or to refrain from such activity. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Russell Hensley immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Russell Hensley whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of Respondent's of- fer of reinstatment, less his net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per an- num, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its establishment in Catlettsburg, Ken- tucky, copies of the attached notice marked "Appen- dix." 2 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. CHAIRMAN MURPHY, concurring: Like my colleagues I find merit in General Counsel's exceptions to the Administrative Law Judge's failure to find that the Respondent unlawful- ly discharged Russell Hensley because of his activi- ties in concert with other employees to secure back wages which Hensley believed were due him and other employees. Like them, I find Hensley's activi- ties in investigating the contract which Respondent had with the county were clearly in concert with and on behalf of himself and other employees, were relat- ed to terms and conditions of employment, and were therefore protected. I also agree that it was because of these activities that he was discharged. My colleagues, however, appear to dismiss, with- out comment, the Respondent's argument, accepted by the Administrative Law Judge, that Hensley was discharged because in pursuing his investigation he engaged in personal misconduct of such a nature as to put his otherwise protected activities outside the Act's protection. In my view, Respondent failed to satisfy its burden of showing that Hensley was dis- charged for the manner in which he spoke to county officials rather than, as Meade's own testimony es- tablishes, for getting "involved in Company policy because the discussion is already around the City of Catlettsburg and a few places in Ashland that I was having some trouble with my men and couldn't con- trol them." In other words, Hensley was discharged for meddling in matters concerning wages and terms and conditions of employment. Thus, although Respondent may have been appre- hensive that Hensley's approaching county officials might have some future detrimental effects on its business, that is not reason enough to remove Hensley's conduct from the protection of the Act.3 As Judge Learned Hand aptly observed "such activi- ties may be highly prejudicial to [the] employer; his customers may refuse to deal with him; he may incur the enmity of many in the community whose disfavor will bear hard upon him; but the statute forbids him by a discharge to rid himself of those who lay such burdens upon him." 4 Accordingly, I concur in the finding that Hensley was discharged in violation of Section 8(a)(1) of the Act.' 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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 " 7 Pioneer Natural Gas Company, 158 NLRB 1067 (1966) 4 N L R B v Peter Cailler Kohler Swiss Chocolate Company, Inc, 130 F 2d 503, 506 (C A 2, 1942) 5 I do not reach the issue whether Respondent also threatened Hensley with discharge for engaging in such conduct since, in the absence of excep- tions thereto, I do not find it before us 694 DECISIONS OF 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 NOT threaten employees with dis- charge, or other reprisals, for engaging in union or concerted activities. WE WILL NOT discharge employees for engag- ing in concerted activities for their mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the Na- tional Labor Relations Act. WE WILL offer Russell Hensley immediate and full reinstatement to his former position or, if such position no longer exists , to a substantial- ly equivalent position, without prejudice to his seniority or other rights or privileges. WE WILL make Russell Hensley whole for any loss of earnings because of the discrimination againt him, plus 6-percent interest. MEADE CONSTRUCTION CO., INC. DECISION JOHN G. GREGG, Administrative Law Judge: This trial was held before me at Catlettsburg, Kentucky, on October 29, 1974, pursuant to complaint and notice of hearing dated September 23, 1974, issued by the Regional Director for Region 9 of the National Labor Relations Board, based on a charge duly filed July 16, 1974. The complaint alleges essentially that the Respondent, Meade Construction Co., Inc., committed unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, by various acts hereinafter specified . At the trial all parties were given full opportunity to participate and subsequently to file briefs. Upon the entire record in this case, from my observation of the witnesses and their demeanor while testifying under oath, and careful consideration of the briefs submitted by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent, Meade Construction Co., Inc., is and has been at all times material herein , a corporation contin- uously engaged at Catlettsburg, Kentucky, as a general contractor in the building and construction industry. During the past 12 months, which period is representa- tive, at all times material herein, the Respondent sold goods and services valued in excess of $50,000 directly to customers outside the State of Kentucky. The Respondent is, and has been at all times material herein, an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 14851, United Steelworkers of Ameri- ca, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Respondent through its president, Charles Meade, on or about March 13, 1974, at the Respondent's offices in Catlettsburg, Kentucky, threat- ened Russell Hensley with the loss of his job because of his activities as a union steward on behalf of the Union; on or about April 22, 1974, at Respondent's construction project in Gallipolis, Ohio, threatened Hensley with discharge be- cause of his activities in concert with other employees to secure back wages which Hensley believed were due to him and to other employees; on or about March 11, 1974, in Boyd County, Kentucky, laid off Hensley for 2 days be- cause of his activities as union steward and his engaging in the foregoing concerted activity for the purpose of collec- tive bargaining or other mutual aid or protection; and on or about April 22, 1974, discharged Hensley because of the foregoing activities, thereby interfering with , restraining, and coercing employees in the exercise of their rights pro- tected by Section 7 of the Act in violation of Section 8(a)(1) of the Act and thereby discriminating in regard to the hire or tenure of employment to discourage member- ship in the Union in violation of Section 8(a)(1) and (3) of the Act. A. Preliminary Consideration; Deferral to Arbitration The record herein establishes that Hensley was dis- charged on April 22, 1974, that subsequently on April 29, 1974, the Respondent and the Union herein agreed to settle the grievance by reinstating Hensley and paying him 2 days backpay. The Respondent and Hensley differed in their respective interpretations of the settlement agreement. The settlement was not acceptable to Hensley who viewed the settlement agreement as reimbursing him for only part of his loss of work and improperly permitting the Respon- dent to reinstate him at such time as work was available rather than immediately. The Union believing the settle- ment to be fair then dropped the matter and would not proceed to arbitration. The Respondent, since Hensley's rejection of the grievance settlement, is unwilling to rein- state him unless ordered to do so by the Board or an arbi- trator. Hensley filed the charges herein. A threshhold question herein is whether or not this case is ripe for application of the Board's deferral policy as es- tablished in Collyer Insulated Wire, 192 NLRB 837 (1971). In my view it is not. Counsel for the General Counsel in his brief urges that the matter of Hensley's discharge MEADE CONSTRUCTION CO., INC. 695 should not be deferred as there is no grievance pending nor arbitration contemplated. The record establishes that the Union settled the grievance prior to the arbitration step and is not willing now to go to arbitration. Additionally, the Respondent is now unwilling to effectuate the settle- ment which Hensley has rejected. The Collyer rule of deferral to grievance and arbitration procedures encourages the Board to decline jurisdiction of a complaint if in the Board's judgment labor policy is best served by leaving the parties to voluntary settlements. N.L.R.B. v. Plasterers Union, 404 U.S. 116, 136-137 (1971). Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpre- tation of an existing collective-bargaining agreement, whether it be pre-arbitral or postaward. As the Board stat- ed in Collyer, "Thus this case like each such case compels an accommodation between, on the one hand, the statuto- ry policy favoring the fullest use of collective bargaining and the arbitral process and, on the other, the statutory policy reflected by Congress' grant to the Board of exclu- sive jurisdiction to prevent unfair labor practices." In my view, in the circumstances and the posture of the case at hand, that accommodation would best be served by the retention of jurisdiction by the Board and decision on the merits herein. The record herein establishes as urged by the General Counsel that there is no arbitration award involved nor is there any arbitration contemplated by the parties. On the contrary there is a grievance settlement unsatisfactory to the aggrieved employee and apparently rendered without the minimum safeguard which a full and fair arbitration would insure. There is no assurance herein that the matter could or would ever go to arbitration. Additionally, the record herein does not establish whether or not in reaching the grievance settlement agreement the Respondent and the Union gave any consideration to the union steward and concerted activities question raised in the complaint here- in. Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Accordingly, I am convinced that the substantive and statutory issues raised by the complaint fall within the special competence of the Board under the provisions of the Act which the Board has been mandated by Congress to enforce, International Great Lakes Shipping Company, 215 NLRB No. 121 (1974), and shall therefor proceed to consider the merits of the complaint herein. B. The Alleged Unfair Labor Practices There was testimony of record by Hensley who stated that he became a steward for the Union late in 1973, that as part of his duties he checked to see that employees were members of the Union ; in this regard in March 1974, he checked the union status of employees at the Gallipolis, Ohio, job where Meade was the general contractor and Wells Electric a nonunion subcontractor. According to Hensley he spoke to the Wells employees, was informed they were not Union, and he then informed them that "In our contract any non-Union contractor that comes with the company has to join the Union after 8 days." According to Hensley as a result of the foregoing, about 2 days later he was laid off for 2 days by Mr. Hammond, general superintendent for Meade, who gave as the reason lack of work. Two days later, Hammond recalled Hensley stating that "We have a job for you. Come back to work." According to Hensley when he reported back to work he had a conversation with Meade who told him that if he did not quit meddling in the union affairs he was going to be fired. Hensley recounted another incident in early March of 1973, when he worked on the Boyd County Courthouse as a carpenter and was paid $4.77 an hour, and was told by one of the foremen that he had not been paid the right wage and would have some backpay coming. According to Hensley, around November 1973, he queried Hammond as to the backpay and Hammond told him that Meade had designated one carpenter to get the backpay. Hensley testi- fied that he then went to the Union, went to the courthouse to check on the Meade contract under which he had per- formed his work; that an account of his activities were relayed to Meade. The following morning, according to Hensley, Meade told him about this and told him that if he did not stay out and quit meddling in affairs that did not concern him, Meade was going to find some way to get rid of him. Subsequently, according to Hensley he continued his ac- tivity going to other sources including the County Labor Board and to Commissioner Ross who on Friday, April 19, did permit him to inspect the contract between the county and Meade under which Hensley had performed his work. On Sunday, April 21, Hensley was called to go back to work where Adkins, a foreman for Meade, told Hensley that he was fired for insubordination, "meddling in the affairs that didn't concern me and the Union." Hensley stated that Adkins told him that Ross had called Adkins and told him that Hensley had "cussed him and said words to him," that "Ross didn't like getting calls like that." On cross-examination, Hensley stated that there was a dispute as to the type of work or the nature of the services he was performing on the job and that this was a factor in the questioning of the appropriate wage rate paid to him. According to Hensley, he and several other carpenters were involved in this dispute and Hensley' s matter was set- tled. Hensley stated that he had discussed the disputed wage matter or backpay with other carpenters. On cross-examination, Hensley testified that when he was laid off by Hammond for 2 days from the Gallipolis job, during the 2 days of his layoff no carpenter worked on that job. Hensley testified that when he was subsequently off 3 days he was advised that work was not available but he believed there was work to be done, sheetrock to be hung. This testimony contradicted his earlier sworn state- ment to the Board that there was genuine lack of work at the time of the 3-day layoff. Hensley testified further that on the morning Meade dis- charged him, Meade told him that Ross had called Meade and told Meade that Hensley had called Ross and cussed him, that Ross told Meade he was going to have to do something with his employees, and that was the reason why Meade discharged Hensley. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contends that Hensley was discharged on April 22 for insubordination arising from Hensley's threatening the Boyd Countyjailer with placing a picket on the Boyd County Courthouse jobsite after the job had been completed, and with calling Boyd County Commissioner Ross at midnight and cursing him, causing both those indi- viduals to call the Respondent Company and complain. There was testimony of record by C.C. Meade, president of the Respondent Company, who stated that the company has had a Union for 7 years, recently signed a new agree- ment which requires that after 8 days all employees must become members of the Union. Meade testified that Hensley was laid off for 2 days on or about March 11, 1974, by Hammond, because work was not available. Meade stated that the Company had difficul- ty procuring materials, the job was shut down for 5 weeks by the owner, Ohio Bell, because they failed to get a state building permit. Meade described the company practice on layoffs by stating that the Company normally has various jobs going concurrently, and if a manpower shortage develops on one job, men are sent from another , if a material shortage or scarcity develops on any job, men with no material to work on are sent home and that sometimes when short layoffs are involved, seniority is ignored when a strict application would result in disrupting the flow of work. Meade denied threatening Hensley with discharge be- cause of his union or concerted activities but stated that after receiving a complaint about Hensley from the county jailer, he warned Hensley that he had to be warned before being terminated and that if Hensley did something "like that" again he would be fired. According to Meade the jailer told him that Hensley had queried him about the Meade contract with the county, normally a nonunion con- tract, that Hensley said that he was going to find out what was going on, and if he did not he was going to put a picket sign up. Meade stated that Hensley was discharged on April 22, 1974, for what Meade deemed insubordination. "He was asked to not get involved in company policy because the discussion is already around the city of Catlettsburg and a few places in Ashland that I was having some trouble with my men and couldn't control them." Meade stated that he had received a phone call from Commissioner Ross before discharging Hensley stating that Hensley called him at home as he (Ross) was getting ready for bed and "raised hell" about the contract. Ac- cording to Meade, Ross told him that he better get control of his people or "they're sure going to hurt your business." ANALYSIS, FINDINGS, AND CONCLUSIONS Based on the record as a whole and my findings and credibility resolutions as explicated hereinafter, I am con- vinced and I conclude that the Respondent did not violate the Act as alleged in the complaint. It is of course well settled that an employer may dis- charge employees without violating the Act so long as its action was not based on the union or concerted activities of such employees. It is the Respondent's contention that Hensley was laid off because of lack of work and discharged because of his "troublemaking" activities which included a complaint from Commissioner Ross that in the course of Hensley's attempts to inspect a contract between the County and the Respondent, Hensley had called Ross when Ross was get- ting ready for bed and after Hensley had had several drinks, and Hensley had "raised hell" about the contract. According to Meade, the action of discharge was a follow- up to the warning given Hensley after Meade had been advised by the county jailer that Hensley had threatened to throw a picket line around the courthouse even though the Respondent's construction had already been completed. Based on my observation of the demeanor of Meade as he testified, I credit his version of the critical discussions with Hensley. I was most impressed by the straightforward and sincere demeanor of Meade as he testified. On the other hand, I found the demeanor of Hensley, as he testi- fied, unconvincing. His testimony at times appeared con- trived while additionally, his testimony at one point, while given with apparent assurance, clearly contradicted an ear- lier sworn statement provided to the Board. No satisfacto- ry accommodation was provided. I do not credit Hensley's versions of the alleged threats nor his versions of the inci- dents alleged in the complaint. Accordingly, I find that Meade did not threaten Hensley with loss of employment and discharge as alleged in the complaint, but that in fact the Respondent warned Hensley that he would be discharged if he continued his activity of threatening and harassing county officials in what ap- peared to Meade to be a derogation of his relationship with these contracting authorities and obviously of potentially critical harm, to his business. Additionally, I have taken into account that this record does not support a finding of union animus. With respect to the temporary layoffs of Hensley by the Respondent, it is clear on this record that the Respondent's policy antici- pated such layoffs, that the policy had been established and in effect for sometime, and that such layoffs were a normal pattern in the Respondent's operations . It is also clear from the record that Hensley had been laid off by the Respondent on prior occasions because of lack of work. Finally, I am convinced and I find on this record that the Respondent laid off Hensley on or about March 11, 1974, because of lack of work and not because of Hensley's activity as union steward and that the discharge of Hensley was occasioned by the Respondent's reasonable reaction to a potential threat to its business arising from the behavior of Hensley vis-a-vis county officials and not as alleged in the complaint because of Hensley's union steward and concerted activity. Accordingly, I shall recommend dis- missal of the complaint herein. MEADE CONSTRUCTION CO., INC. 697 CONCLUSIONS OF LAW 1. The Respondent, Meade Construction Co., Inc., did not interfere with, restrain, or coerce its employees in their exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act by threatening Rus- sell Hensley, the Charging Party herein, with loss of his job and discharge, as alleged in the complaint. 2. The Respondent, Meade Construction Co., Inc.; did not violate Section 8(a)(3) and (1) of the Act and did,, not discriiinate against employees in laying off and discharg- ing Russell Hensley as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.]