Buck Brown Contracting Co., Inc. And A.S.C. Constructors, A Joint Venture

488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Buck Brown Contracting Co., Inc. and A.S.C. Con- stiuctors, a Joint Venture and Randal F. Fansler and Robert J. Kelly and Wendell Bridges and David Mark Doran and John Angle. Cases 31-CA-10035, 31-CA-10043, 31- CA-10047, 31-CA-10141, `and 31-CA-10155 31 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT On 2 February 1982 Administrative Law Judge Burton Litvack issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision' and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modified and to adopt the recom- mended Order as modified.3 We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by making sev- eral coercive and threatening statements. We also agree that the Respondent unlawfully discharged three employees.4 We fmd merit, however, in the i The last sentence of sec. IV,D,2, par. 2, of the judge's decision should read "Further, while there is no record evidence that Easter was aware that Bridges actually spoke to Lively ...: . The first sentence of sec. IV,D,2, par. 4, should read "Having established that Bridges engaged in protected concerted activities, however limited, and that Respondent, through Easter, was aware of, or suspected, such conduct ...." We correct the inadvertent errors a Both the Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We also find no merit in the Respondent's allegation of bias and preju- dice on the part of the judge. On our full consideration of the record and the judge's decision, we perceive no evidence that he prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence. 9 The judge inadvertently omitted from the cease-and-desist portion of his recommended Order a provision enjoining the Respondent from in any like or related manner interfering with the employees' Sec. 7 rights. We shall amend the Order to so provide. We shall also modify the Order by adding the affirmative requirement that the Respondent expunge from its records any references to the un- lawful discharges and notify the employees in writing that this has been done and that evidence of the unlawful discharges will not be used against them. 4 In affirming the judge's finding that Robert Kelly and Randal Fansler engaged in protected concerted activity when they sought the Respondent's compliance with the terms of the parties' collective-bar- gaining agreement, we rely on NLRB v. City Disposal Systems, 465 U.S. 822 (1984) Because we affirm the judge's findings in this regard, we find it unnecessary to decide whether Kelly's complaints regarding noncon- tractual matters were protected concerted activity Respondent's exceptions to the judge's findings with respect to certain statements of Project Man- ager Jim Joy. 1. On 7 May 19805 following the discharge of employee Randal Fansler, Joy met with two union agents and an employee steward. During their meeting, one of the union agents mentioned a threat by union members to picket the jobsite in protest of-the discharge: According to one union agent, Joy replied that if "things didn't work out and the men didn't get back to work, the basic thing that would happen is that [the Respondent] would lose [its] contract," with the contract prob- ably being awarded to Brown and Root, a non- union firm also engaged at the jobsite. Also in early May at a safety meeting with the employees, Joy announced that employees from the nonunion firm would be sharing camp space with the Re- spondent's employees. According to the credited testimony, Joy stated that "if there were any union problems, either there or on the job, that the whole job could go to Brown and Root, that they are waiting to take it over." We do not agree with the judge that Joy's remarks are unlawful threats of business closure in retaliation for union activities. Joy's statements do not intimate that the Respond- ent would forfeit its contract as punishment for its employees' union activities. Rather, these state- ments suggest no more than the possibility that the Respondent could lose its contract due to the activ- ity of parties beyond its control. Such statements concerning possible third-party action are state- ments of opinion, not threats of reprisal, and are protected by Section 8(c) of the Act. Accordingly, we dismiss that aspect of the complaint and shall modify the Order accordingly. 2. We disagree with our dissenting colleague's assertion that the General Counsel has not shown a prima facie case of unlawful discharge of Kelly. The General Counsel established that Kelly en- gaged in protected activity and that his supervisor who discharged him had knowledge of the activity and expressed union animus. The nexus which our colleague finds lacking is supplied by credited testi- mony that Davis had told Union Steward Hern- don, when he presented a job-related complaint, that "we can't be starting all this union shit," Davis' anger when Kelly threatened to take a work-break grievance to Herndon, and Davis' caustic remark when he gave Kelly his final pay- check that he had a "present" for Kelly. This is sufficient in our view to support an inference that Kelly's protected conduct was the basis for his dis- charge. As the Respondent has failed to show that 5 All dates refer to 1980. 283 NLRB No. 75 BUCK BROWN CONTRACTING CO. Kelly would have been discharged even in the ab- sence of his protected activity, we affirm the judge's conclusion that the discharge was unlawful. See Wright Line, 251 NLRB 1083 (1980). On 14 May Kelly informed Wendell Bridges that Kelly had just been discharged. Bridges ap- proached Foreman James Easter and asked if Easter would hire Kelly for the night crew. Easter refused, stating, "I got a new crew . . . I don't want any problems." Bridges told Easter that he would speak to General Foreman Joe Lively, and Easter advised Bridges not to go over his head. Later, after Easter again refused Bridges' request to hire Kelly, Bridges advised Kelly to speak to Lively. Easter again became upset and asked if Bridges was trying to go over his head. Easter cor- roborated this version of his encounter with 'Bridges, and the judge also credited Easter's testi- mony that Bridges responded by threatening that "they were going to wobble" (strike) the job. That evening, Bridges told Easter that he was driving Kelly home to Las Vegas and would return for work the next day. Easter asked whether Kelly was supporting Bridges, and, when Bridges said they were just friends, Easter replied, "Look, son ... you want to work on my crew ... you stay out of other people's business." The judge found, and we affirm, that this statement was a threat of discharge in violation of Section 8(a)(1) of the Act. When Bridges returned for, work the next day, Easter informed him that he was laid off, stating, "I don't want no problems on my job." Bridges re- sponded that such actions could lead to a wildcat strike, and Easter replied, "To hell with your wild- cat strike. Get the hell off my job." Later, Bridges encountered Superintendent Sam Aiton III and asked, "Wasn't my work satisfactory?" Aiton re- plied, "That's not the point.... Anyone that cre- ates any problems from now on is going down the road." The judge found, and we affirm, that Aiton's remark was an unlawful threat of dis- charge. We agree with the judge's fording that Bridges' attempt to assist Kelly in procuring employment with the Respondent was protected concerted ac- tivity, and base our conclusion that the Respondent unlawfully discharged Bridges on the judge's find- ing that this assistance was one reason for Bridges' discharge.6 6 We disagree with our dissenting colleague's assertion that Bridges' assistance to Kelly was unprotected. Bridges' attempt to secure employ- ment for Kelly is not the type of dissident activity that could undermine the statutory system of bargaining through an exclusive representative. Cf. Energy Coal Partnership, 269 NLRB 770 (1984) (unauthorized strike). Bridges was not engaged in collective bargaining; rather, he was in- volved in classic concerted activity-joining with another to seek em- ployment. 489 We do not agree with the judge's finding that Bridges was engaged in protected conduct when he threatened a wildcat strike in protest of Kelly's discharge.? We nevertheless conclude that the Re- spondent has not met its burden under Wright Line, supra, of proving that Bridges would have been discharged even in the absence of his protected conduct of attempting to secure employment for Kelly after Kelly was unlawfully discharged. The Respondent has never asserted that Bridges' threat was the reason for his discharge. In fact, in its ex- ceptions, the Respondent argues, based on credibil- ity, that Bridges never even threatened a strike before he was terminated. Its asserted reason for the discharge, Bridges' allegedly poor work per- formance on 13 May, had nothing to do with his threat of an unauthorized strike. The judge found, based on credibility resolutions, that this asserted reason was a sham and a pretext. Further, Bridges again mentioned the possibility of a wildcat strike after he was discharged, and Easter admitted that he discounted this threat. Accordingly, we con- clude that the Respondent has not'met its burden of proving that it discharged Bridges because he threatened a wildcat strike and not because of his protected concerted activity of attempting to obtain employment for Kelly. 4. We also agree with the judge, rather, than with our dissenting colleague, that the Respondent unlawfully attempted to interfere with the stew- ard's duties. The Respondent's threat to put the steward "up on a hill" suggests isolation from the rank-and-file employees which would preclude a steward's effectiveness. We further agree with the judge that the Re- spondent unlawfully interrogated employee Fansler regarding why he contacted his steward about a pay dispute. The judge found that 2 hours after Fansler last spoke to the steward about the dispute, General Foreman Lively approached Fansler and asked him why he had contacted the steward. Fansler replied that whenever anyone tried to "screw him" out of pay, he was entitled to try to resolve the matter by speaking to the steward. Lively responded by call- ing Fansler and the other carpenters a "bunch of crybabies." Fansler then attempted to' defend the reputation of the Union, and Lively walked away. Lively apologized to Fansler later that afternoon. Because we conclude that the Respondent unlawfully discharged Bridges because of his assistance to Kelly, we find it unnecessary to de- termine whether complaints Bridges made about the night crew's work hours also constituted protected concerted activity. ' It is well established that an unauthorized, or "wildcat," strike is not activity protected by Sec. 7 of the Act. See Harnischfeger Corp. v. NLRB, 207 F.2d 575, 578-580 (7th Cir 1953).! 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After officials of the Union intervened , Lively agreed to make up Fansler's lost wages, and Fansler testified- that by his termination date he had received all the payment he believed was due him. The Respondent's general antipathy toward the steward's role is clear from the above unlawful comments made to the steward . The Respondent's further questioning of an employee as to why he contacted his steward is coercive in these circum- stances. We note that, despite Fansler's honest re- sponse and the supervisor's apology, the interroga- tion was followed by an unlawful discharge based on the matter questioned . Accordingly, we affirm the judge's conclusion. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Buck Brown Contract- ing Co., Inc. and A.S.C. Constructors, a Joint Ven- ture, Tonopah, Nevada, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they engaged in union or-other protected concerted activities. (b) Threatening to terminate employees because they engaged in union or other protected concert- ed activities. (c) Threatening to affect adversely the job stew- ard's ability to perform the duties and responsibil- ities of his office because of his activities on behalf of the Union. (d) Interrogating employees with regard to their union activities. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer' Randal Fansler, Robert Kelly, and Wendell Bridges immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any -loss of earnings and other benefits suffered, as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges of Randal Fansler on 6 May 1980, Robert Kelly on 14 May 1980, and Wendell Bridges on 15 May 1980, and notify these individ- uals in writing that this has been done and that evi- dence of these-unlawful discharges will not be used as a basis for future personnel actions against them. (c) Preserve and,- on request, make available to the Board or its agents- for examination and copy- ing, all payroll records, social security payment records, timecards, personnel- records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) If its work assignment at the, Anaconda Mining project jobsite - in Tonopah, Nevada, has not yet been completed, post at its office there copies of the attached notice marked "Appendix." If its work on that jobsite has been completed, copies of the attached notice should be sent to the last known addresses of Randal Fansler, Robert Kelly, and Wendell Bridges and all union member/employees employed by the Respondent between 1 March and 31' May 1980; and to the Union so that the latter may, if it desires, post the notice at its dispatch hall or wherever notices are customarily posted. Copies of the attached notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately, upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted: Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. - - (e) Notify the Regional Director in writing within 20 days' from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the consolidated amended complaint is dismissed insofar as it alleges that the Respondent violated Section 8(a)(1) and (4) of the Act by refusing to, reinstate Robert Kelly, Section 8(a)(3) of the Act by terminating Wendell Bridges, and Section '8(a)(1) and (3) of the Act by terminating David Mark Doran and John Angle. CHAIRMAN DOTSON, concurring in part and dis- senting-in part. I agree with my colleagues that the Respondent violated Section 8(a)(3) and (1)' of the Act by dis- charging Randal Fansler and, through its supervi- sor Joseph Lively, by threatening to discharge em- ployees who complained about Lively's violations B If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by-Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." BUCK BROWN CONTRACTING CO. 491 of the parties' collective-bargaining agreement.' I also agree with the reversal of the judge's conclu- sion that certain statements made by Project Man- ager Joy violated Section 8(a)(1). I disagree, how- ever, with the majority's conclusion that the Re- spondent unlawfully discharged Robert Kelly and Wendell Bridges or made other statements that vio- lated Section 8(a)(1). 1. THE DISCHARGES A. Robert Kelly. The judge and my colleagues find that Robert Kelly was discharged for raising complaints about perceived contract violations and working condi- tions in general. The judge found that Kelly com- plained to his supervisor Don Davis about the un- availability of cold drinking water and sanitary fa- cilities and about Davis' performing unit work. Noting that Kelly alone on Davis' crew raised such complaints, the judge inferred that Davis took Kelly's complaining personally and was motivated by it to discharge him. On this evidence, I ford that the General Counsel has failed to make a prima facie case of unlawful discrimination. The record does not demonstrate any nexus between Kelly's protected conduct and his discharge. According to Kelly's own testimony, Davis did not respond in a hostile manner to Kelly when he raised his complaints, and the General Counsel has not alleged ,that Davis otherwise has violated the Act. I do not fmd Davis' general state- ments that the employees were, for example, cryba- bies, which were never directly addressed to or made about Kelly, are sufficient to warrant draw- ing an inference of personal antagonism against Kelly to support fording an unfair labor practice. Accordingly, I would dismiss this aspect of the complaint. B. Wendell Bridges The majority adopts the judge's conclusion that the Respondent unlawfully discharged employee Bridges. The judge found that Bridges engaged in three types of protected conduct: he complained about the number of hours scheduled for his shift; he attempted to secure employment for a dis- charged coworker; and he threatened to strike in protest of that discharge. In my , opinion, none of these actions is protected by the Act and, accord- ingly, the General Counsel has failed to present a prima facie case of unlawful discharge. In light of this fording, I find it unnecessary to decide if the Respond- ent violated Sec. 8(axl) by the two additional incidents found by the judge to constitute unlawful threats of discharge. See sec. IV,F of the judge's decision . Such a finding would be cumulative and would add nothing to the remedy. Bridges' individual complaint that his scheduled number of hours of work on the night shift was 1 hour less than that scheduled for the-day-shift em- ployees is not protected concerted activity. As found by the judge, this was not a matter covered by the collective-bargaining agreement. Cf. NLRB v. City Disposal Systems, 465 U.S. 822 (1984). Fur- ther, the record does not support a finding that Bridges acted on the authority of other employees when he made this individual complaint. The con- clusion that Bridges' complaint was solely personal is manifest by his proposed solution that he simply be allowed to work on another crew, i.e., on the day shift. Cf. Meyers Industries, 268 NLRB 493 (1984). Second, I do not agree that Bridges' threat to strike the project, made when Foreman Easter re- fused to hire Kelly, is protected activity. 'There is no contention or evidence that Bridges' threat was supported by the Union or that he sought such sup- port. Rather, his threatened action was a spontane- ous and self-initiated "wildcat" strike, and not the product of majority action through the Unions I do not believe that employees have a protected right to so circumvent their, collective-bargaining representative. Therefore, I would not find -the threat of a "wildcat" strike protected activity. Similarly, I do not agree that Bridges' attempt to secure the reinstatement of Kelly is protected ac- tivity. Employees who are represented by a collec- tive-bargaining agent and are aggrieved have at their disposal union representatives through whom the employees can seek redress. In my view, when employees have a duly elected and recognized union, efforts to assist colleagues by self-designated representatives undermine the exclusive statutory representative. I do not find such self-help attempts protected by the Act.3 Accordingly, I would dis- miss this aspect of the complaint. IL THE ALLEGED 8(A)(1) VIOLATIONS I disagree with my colleagues with regard to their adoption of two 8(a)(1) violations found by the judge. The first alleged violation occurred in early May when Project Manager Jim Joy and Su- perintendent Sam Aiton III' approached Union Steward Mike Herndon as Herndon was returning 2 The conclusion that Bridges intended an unauthorized strike is bol- stered by the frequent characterization of job actions as "wildcat." For instance, Bridges testified that, when he and Kelly returned to the day camp following Easter's refusal to hire Kelly, Kelly stated that he was "going to throw a wildcat," and Bridges responded that he would not cross a picket Ime. In addition, the judge dismissed the allegation that Bridges' discharge violated Sec. 8(a)(3) of the Act because there was no evidence that Bridges was involved in any union activity. 2 Cf. Emporium Capwell Ca v Western Community Organization, 420 U.S. 50 (1975). 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to his work area after speaking with employees. Joy and, Aiton asked Herndon what he was -doing, and Joy said that he did not think Herndon should be walking around the project so much. According to Herndon, Joy also said that "he was going to put me up on a hill where I could see the whole job area,' with an umbrella and a watering can, and that's where I would stay and sit for the whole 10 hours of the day." The judge characterized this in- cident as involving interrogation and harassment, and found Supervisor Joy's remark to be an Iinlaw- ful threat to affect adversely the steward's ability to perform his duties in violation of Section 8(a)(1). I fmd nothing in this incident that can be charac- terized as coercive or destructive of employee rights. The inquiry to Herndon regarding what he was doing during his shift hours on the project is clearly permissible. I further fmd the cavalier remark about what they might do to Herndon does not rise to the level of an unfair labor practice. I would dismiss this aspect of the complaint. The second incident occurred -on 23 April. Em- ployee Randal Fansler spoke to his steward Hern- don concerning a pay dispute with the Respondent. A few hours later, Supervisor Joe Lively ap- proached Fansler in the reclaim tunnel area and asked Fansler why he had come in contact with Herndon. Fansler replied that he was entitled to speak to a steward when someone tried "to screw" him out of pay. Lively replied that Fansler and the other carpenters were, _ "crybabies" and walked away. Later that afternoon, Lively apologized to Fansler, stating, that the_ pay dispute was a result of a 'misunderstanding and that he -hoped Fansler would not quit. The judge and my colleagues find, this was unlawful interrogation in violation of Sec- tion 8('a)(1). I disagree. Considering the brevity of the encounter, the informal setting in which it oc- curred, Fansler's honest and clearly unintimidated response, and the supervisor's subsequent apology, I cannot characterize this single question as coer- cive. See Rossmore House, 269 NLRB 1176 (1984). Therefore, I would dismiss ,this portion of the com- plaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations-Act and has ordered us to post and abide by this notice. WE WILL NOT discharge you because you 'en- gaged in union or other protected concerted activi- ties. WE WILL NOT threaten to terminate you because you engaged in union or other protected concerted activities. WE WILL NOT threaten to affect adversely the job steward's ability to perform the duties and're- sponsibilities of his office because of his activities on behalf of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1780. WE WILL NOT interrogate you with regard to your union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Randal Fansler, Robert Kelly,- or Wendell Bridges immediate and full reinstatement to their former positions or, if those positions- no longer exist; to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL' make them whole for any loss of earnings and other benefits they may have suffered as a result of our discrimination against them with inter- est. WE WILL remove from our personnel records all references to the unlawful discharges of these em- ployees and wE WILL notify them in writing that this has been done and that evidence of the dis- charges will not be used as a basis for future per- sonnel actions against them. BUCK BROWN CONTRACTING CO., INC. AND A.S.C. CONSTRUCTORS, A JOINT VENTURE Douglas Gallop, Esq., for the General Counsel. Michael W. Foster, Esq., and Phillip M. Prince, Esq. (ShimmeL Hill, Bishop & Gruender), of Phoenix, Arizo- na, for the Respondent. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. This consolidated -proceeding was heard before me in both Las Vegas, Nevada, and Phoenix, Arizona, on December 4 and 5, 1980,1 and January 54 and 26-28, February 2 and 3, and March 2-4, 1981. On August 16, 1980, the Regional Director for Region 31 of the National Labor Relations Board (the Board) issued an order consolidat- ing cases, consolidated amended complaint, 'and notice of hearing, based on unfair labor practice charges filed by i Unless otherwise stated, all events herein occurred in 1980. BUCK BROWN CONTRACTING CO. 493 Randal F. Fansler, an individual, in Case 31-CA-10035 on May 15, 1980; by Robert J. Kelly, an individual, in Case 31-CA-10043 on May 16, 1980; by Wendell Bridges, an individual, in Case 31-CA-10047 on May 19, 1980; by David Mark Doran, an individual, in Case 31- CA-10141 on June 27, 1980; and by John Angle, an indi- vidual, in Case 31-CA-10155 on July, 2, 1980, alleging that Buck Brown Contracting Co., Inc. and A.S.C. Con- structors, a Joint Venture (Respondent), engaged in acts and conduct violative of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). During the aforementioned hearing, the General Counsel was per- mitted to further amend the instant consolidated amend- ed complaint, alleging that Respondent also engaged in acts and conduct violative of Section 8(a)(1) and (4) of the Act. Both in an answer and at the hearing, Respond- ent denied the commission of any unfair labor practices. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue their respective positions, and to file briefs. Based on the entire record, on the' briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 11 1. JURISDICTION Respondent is a joint venture partnership, consisting of Buck Brown Contracting Co., Inc. (Buck Brown, Inc. and A.S.C. Constructors) and maintains an-office and place of business at the Anaconda Mining molybdenum mine construction project near Tonopah, Nevada, where it is engaged in the construction of production facilities for the operation of the mine. Respondent, in the course and conduct of its business operations, annually pur- chases and receives goods and . services valued in excess of $50,000 directly from suppliers located outside the State of Nevada. The consolidated amended complaint alleges, Respondent admits, and I find that Respondent is an employer engaged , in commerce and in a business af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The consolidated amended complaint alleges, Re- spondent admits, and I find that United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1780 (the Union) is a labor, organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. About May 6, did Respondent discharge employee Randal F. Fansler in violation of Section 8(a)(1) and (3) of the Act? 2. About May 14, did Respondent discharge employee Robert J. Kelly in violation of Section 8(a)(1) and (3) of the Act? 3. About May 15, did Respondent discharge employee Wendell Bridges in violation of Section 8(a)(1) and (3) of the Act? 4. About May 30, did Respondent discharge employ- ees David Mark Doran and John Angle in violation of Section 8(a)(1) and (3) of the Act? 5. Whether in late May or early June, Respondent re- fused to reinstate employee Kelly to his former position in violation of Section 8(a)(1) and (4) of the Act? 6. Did Respondent violate Section 8(a)(1) of the Act by the following acts and conduct? (a) About April 24, interrogating employees regarding their union activities. (b) In late April, threatening employees with discharge for complaining about perceived violations of a collec- tive-bargaining agreement. (c) About May 7, threatening to cease doing business because of employees' union activities. (d) In early May, threatening to cease doing business because of employees' union activities. (e) In early May, reprimanding employees due to their union activities. (f)- About May 15, threatening to terminate employees who cause union problems. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The setting Respondent is a joint venture, comprising Buck Brown, Inc. and A.S.C. Constructors, with the former acting as the managing partner. Since March 1980, and at all times material, Respondent, pursuant to it contract with the general engineering contractor Bechtel, has been engaged in the construction of certain portions of a molybdenum mine for Anaconda Mining. The construc- tion project is located in an and and remote section of the State of Nevada, near the town of Tonopah that is located approximately 200 miles from Las Vegas. With other contractors, including Brown and Root, responsi- ble for other sections of the facility, Respondent con- tracted to construct the core portions of the mine facili- ty: the crusher building, two reclaim tunnels, a radial arm stacker, and a concentrator building.2 Each of these structures is constructed of steel-reinforced concrete. The record discloses that, in connection with the per- formance of its work, ' as of the commencement of the hearing, Respondent had employed approximately 370 employees, representing the various construction crafts at the project, and that over half of the workers have been carpenters, whose work 'consisted primarily of con- structing the wooden wall forms of the building walls into which the concrete is poured. The record further discloses that Respondent's employees, as well as those of other contractors, lived and worked under what chari- tably may be termed as difficult conditions. As to the 8 When molybdenum production commences at the mine, freshly mined earth will initially be deposited in the crusher building in which the raw earth ore will be subjected to intensive pounding. From there, the pulverized material will be sent to the reclaim tunnels for even more intensive grinding Thereupon, the material will travel along the radial arm stacker that deposits the unrefined material into piles. Ultimately, the ore will be processed through the concentrator in which molybdenum will eventually be extracted from the ore. 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD latter, besides the oftentimes hazardous natures of the work, there were continuing problems caused by the lack of cold drinking water and insufficient toilet facili- ties and the' less than sanitary nature of the latter. As to the former, given the distance of the project from Las Vegas and the apparent lack of facilities in Tonopah, all workers were forced to live as close as possible to the jobsite. The area where project workers chose to park their trailers and/or campers or otherwise set up tempo- rary living facilities became known as the dry camp and is located 3-4 miles from the mine. Respondent's Exhibit 31 shows this area to be flat and open, and Buck Brown, the president of Buck Brown, Inc., described the site as follows: "[I]t was pretty dry. There was no water, no electricity, no sanitary facilities at all." According to Brown, Respondent had no role in selecting the site as a living area; the workers leased the area from the State of Nevada. However, he did agree to provide the employ- ees with drinking water for the camp, $9000 worth of electrical equipment, and toilets that were taken from the jobsite to the dry camp.4 The record establishes that neither Buck Brown, Inc. nor A.S.C. Constructors is a Nevada corporation and that the former is based in Arizona. Accordingly, as Buck Brown, Inc. operated as the managing partner of the joint venture, all Respondent's senior management at the jobsite came from Arizona and worked there with the cooperation of the Union. Among these individuals were Jim Joy, the project manager. In this capacity, Joy was responsible for overseeing Respondent's operations at the jobsite, acting as the management spokesman at safety meetings and at grievance meetings with union of- ficials, approving the hiring of individuals, and acting as the ultimate management authority in discharge cases.5 Directly beneath Joy in Respondent's managerial hierar- chy at the jobsite and also from Arizona were General Foremen Joe Lively and Sam Aiton Jr. (Aiton Jr.) and Superintendent Sam Aiton III (Aiton III). These three individuals, who, Respondent stipulated, were supervi- sors within the meaning of Section 2(11) of the Act, were responsible for work at designated areas of the project and directly supervised the foremen in each re- spective area,, assisting the latter with their job duties. Beneath Lively, Aiton Jr., and Aiton III were the crew foremen, each of whom was assigned a crew of workers. 8 For example, the work of the carpenters required the employees to sometimes work at heights of, at least, 15 to 30 feet off the ground- either standing on wooden scaffolding or dangling freely while supported only by a safety belt. In view of this, safety appears to have been a major concern of Respondent , with weekly meetings held for this reason attend- ed by all supervisors and employees . Other matters concerning employee working conditions were raised and discussed during the meetings. 4 Robert Fhnchum, Respondent's business and office manager at the jobsite, testified that there has been an unusually high degree of employee turnover on the project. He opined that such was "probably due to the remote area of the job, and working conditions . . . . Living accommo- dations were nonexistent or very primitive at best." 5 Based on the record as a whole, I find Joy to be a supervisor within the meaning of Sec. 2(11) of the Act. Further, I shall draw no adverse inference' from Joy's failure to testify at the hearing. It appears that, at the time of the hearing, Joy was'working in Saudi Arabia and that Re- spondent r was unable to contact him regarding testifying in its behalf. Ac- cordingly, when testimony was offered as to Joy's conduct, I have par- ticularly ' relied on the demeanor of the witnesses and the nature of'the evidence in determining whether to credit such Those carpenter crew foremen with, at'least, five car- penter employees on their respective crews normally performed no production work, responsibly directed the work of their crewmembers, were authorized to arrange transfers of employees between crews, and, most signifi- cantly, seemingly possessed unfettered authority to termi- nate employees. In this regard, the record further estab- lishes that it was the practice of Jim Joy not to overrule or otherwise undermine the authority of the crew fore- men in discharge cases. Among Respondent's carpenter crew foremen at relevant times were "Obie" Bodiroga, Dennis Jensen, James D. Easter, Donald R. Davis, Bruce Alford, and John P. Hendershot Jr.6 2. Respondent's relationship with the Union and attitude toward employee-members thereof The record reveals that a prejob conference was held in Phoenix, Arizona, in late February; that such was at- tended by managerial representatives of 'Buck Brown, Inc. and A.S.C. Constructors; and that all aspects of the forthcoming Anaconda Mining Tonopah project were discussed. Buck Brown candidly admitted that Jack Carney, the president of A.S.C. Constructors, demanded that the project be done on a nonunion basis. Asserting that he was a former union member and that his compa- ny has never worked on an open shop basis and alluding to Buck Brown, Inc.'s membership in the Arizona Asso- ciated General Contractors and its status through the membership as a signatory to collective-bargaining agree- ments with several labor organizations, Buck Brown tes- tified that he "felt pretty adamant about not doing that [and] prevailed over Mr. Carney's strenuous ob- jections" that the project should be on a union shop basis. However, the testimony' of another" witness sug- gests that self-interest rather than any pristine prounion sentiments were involved in Brown's decision. Thus, ac- cording to Robert Flinchum, after Carney set forth his demand, Buck Brown replied that inasmuch as the project was a great distance from "home, he wanted to utilize union personnel as they would be the most quali- fied. In any event, Brown subsequently had a meeting in Las Vegas with Elmer Laub, the business manager of the Union, Cliff Kahle, an assistant business agent of the Union, and representatives of the Teamsters Union and the Operating Engineers Union. Brown told the union representatives that although he personally wanted union personnel doing the work on the project, he "was under a lot of pressure from Anaconda and Bechtel and [A.S.C.] to do the job open shop." During the ensuing discussion, Brown learned that despite the aforemen- tioned, his company might not be free from labor prob- lems on the job. Thus,' Laub warned that "we could probably expect a worse labor market situation in Las Vegas than we were accustomed to working with' Phoe- nix," explaining that the Union's membership included "rebels" and "radicals." As to this, Brown requested that 6 The parties stipulated that Easter and Davis were supervisors within the meaning of Sec. 2(11) of the Act. The same appears true as to the others named, and I so find. BUCK BROWN CONTRACTING CO. 495 "anybody that. would cause us any great . . . amount of problems" not be dispatched to the job by the Union. Subsequent to this meeting, Brown executed collective- bargaining agreements with all the construction craft unions, that between the Union and Respondent incorpo- rated all the terms of the existing collective-bargaining agreement between several Nevada Carpenters union locals, including the Union, and the Nevada Associated General Contractors (R. Exh. 3) with the exception of the grievance and arbitration procedure (art. XV).7 The record further reveals that Respondent's project manager, Jim Joy, capitalized on Buck Brown's com- ments, regarding the pressure on Brown to perform the job on a nonunion basis, utilizing this as a "sword of Damocles" whenever union-related problems arose.8 Thus, on May 7, Joy met with Laub and Kahle and em- ployee-job steward Mike Herndon with regard to the discharge of employee Randal Fansler. During their meeting, Laub mentioned a threat by union members to picket the jobsite in protest of the discharge. According to Mike Herndon, after discussion concerning the legali- ty of such action, Joy leaned back .in his chair and said, "Ali, well, we're just going to give it all to Brown and Root."' Cliffe Kahle testified that after being told of the possibility of a strike, Joy replied "that if things didn't work out and the men didn't get back to work, the basic thing that would happen was that Buck Brown, would lose his contract . . . ." Joy added that the contract would probably be awarded to, and he thereupon ges- tured over his shoulder, toward a window behind his chair, through which the Brown and Root yard was plainly visible.9 I found Herndon and Kahle to be par- ticularly credible and forthright witnesses and shall credit them as to the occurrence of this incident, noting that whether Joy mentioned Brown and Root or merely gestured toward its yard is a distinction without a differ- ence,10 In any event, the record also reveals that Joy re- " Art. 4 of the memorandum agreement between the Union and Re- spondent reads as follows: 4. The provisions of Section XV of the above described labor agreement are excluded in their entirety from this memorandum agreement and the terms and conditions of such Section XV shall not apply in any manner to the union and the contractor signatory to this memorandum agreement. In the event a dispute should arise over terms of the agreement, the union and the contractor shall make an effort to resolve such dispute. However, failing such resolu- tion, the union shall have the right to take any legal or economic action including, but not limited to, the right to withhold services of carpenters, refuse to dispatch carpenters, or strike an employer re- garding the interpretation or application of any term or condition of the carpenters labor agreement or this memorandum agreement. This paragraph shall not be applicable to the enforcement of Section III of the labor agreement. The Union was well aware of the position of Buck Brown. Thus, As- sistant Business Agent Kahle testified that Brown's comments were viewed as a "basic, open-shop threat '.... And when I'm talking about the threat, that was the reason anytime anything happened up there that was critical to our position . . . we would hotfoot it up there'. .. to straighten the problem out before it did blow out of context." 9 Kahle testified that he was well aware that Brown and Root was the largest nonunion construction' contractor in the United States and that the meaning of Joy's gesture was not lost on the participants: "that was a hammer that was used over the men's heads also." 10 Honest men may differ as to their memory of the same event. More- over, although I draw no inference from Joy's failure to testify in general and specifically about this incident, both Kahle and Herndon testified peated-the identical threat at an early May safety meet- ing. According to the credible testimony of Herdon, while Joy was discussing the dry camp area, he said that he had given permission for its use by the Brown and Root employees "and that he didn't want any union problems ... in the dry camp; and if there is any union problems, either there or in the job, that the whole job could go,to Brown and Root, that they're waiting to take it all over." Although Buck Brown denied repeating for his mana- gerial staff at the jobsite Elmer Laub's warning that among the Union's membership were "rebels" and "radi- cals," the record discloses that Respondent's supervisors did little to disguise their anger and contempt and uti- lized blatantly coercive tactics to suppress such when- ever carpenter-employees mentioned union involvement in job-related disputes, complained about their working conditions, or questioned supervisors about perceived contract violations and that most often manifestations of the foregoing were directed toward Job Steward Hem- don, among whose duties was to present his member- ship's complaints to management. Herndon testified with regard to several instances of such harassment. He re- called an occasion in early May at which time while, re- turning to his work area after speaking to employees at the reclaim tunnels, he was approached by Jim Joy and Aiton Jr. Each asked what he was doing there, and Joy said that he did not think Herndon should be, walking around the projects so much and that "he was going to put me up on a hill where I could see the whole job area, with an umbrella and a water can, and that's where I would stay and sit for the whole 10 hours of the day." Aiton Jr. did not deny this comment, and I credit the forthright testimony of Herndon. On another occasion, a concrete pour was under way at the crusher building. Herndon approached the crew foreman, "Obie" Bodir- oga, and asked the foreman if he wanted the men to take a lunch break. Bodiroga replied that he did and that he would oversee the pour in his crews' absence. Herndon replied that a crew foreman was not permitted to take possible overtime pay from a carpenter. Bodiroga there- upon said that an employee would be assigned to', watch the remainder of the pour and also said, "We don't want to start a bunch of, union problems out here:" Bodiroga did not, testify at the hearing, and I credit Herndon as to this conversation. Don Davis, on whose crew Herndon worked, appears to have been the most vociferous of Respondent's super- visors in reacting to Herndon's job-related complaints. According to Herndon, his complaints to Davis usually concerned working conditions" or the latter's habit of that Joy Lively was present at this meeting; he failed to deny the forego- ing testimony. 11 The record establishes that Herndon's complaints to working condi- tions normally were directed to the lack of cold drinking water and the unsanitary nature of the toilet facilities on the jobsite . The record further establishes that both concerns were based on the collective-bargaining agreement. Thus, sec. XVII(a) provides that both `Iced drinking water" and "sanitary toilets" must be furnished by the employer on a jobsite at all times. 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD working with his tools.12 Thus, one day, after he had been on the jobsite for approximately 1 month, Herndon spoke to Davis regarding the latter's use of his tools and the lack of decent working conditions on the project. Davis replied, "`You crybaby, you complain all the time about this. We're trying to get it worked out."' Thereaf- ter, according to Herndon, on "a couple of dozen times maybe" Davis repeated this comment after Herndon re- ported employee job-related complaints. The latter re- called one other particular conversation with Davis. Herndon was in the midst of complaining to another foreman about laborer-employees performing carpenter work when Davis approached. Davis asked about the nature of the complaint, and Herndon told him. Davis replied, "Yeah, that will be carpenters work. But we can't be starting all this union shit."' Davis admitted that Herndon complained to him sev- eral times regarding that lack of cold drinking water and the unsanitary condition of the toilet facilities and that Herndon also complained on occasion when Davis per- formed work with his tools.13 Although he specifically denied calling Herndon a "crybaby" for expressing these admitted complaints, Davis' answers to the following questions cast doubt on his denial and, most significantly, illustrate Respondent's callous attitude toward its union member-employees: BY JUDGE LITVACK: Q. Well, did you ever call anybody cry baby on that project? A. Yes. Q. Who? A. Yes, to the Nevada carpenters. Q. Well you- A. As a group. Q. All right. Who did you make that statement to? A. Old Sam, young Sam, to Joe Lively, to lots of people. Q. Well to who? A. I don't recall every person. Q. Well, how many people did you tell that to? Did you tell that to other carpenters? A. I don't recall. Q. Did you only make the statement to manage- ment officials of Buck Brown? A. I don't recall. Q. But you do-all right, who were you referring to when you made those statements? To anyone in particular? A. No. Q. All right. Now to what were you referring when you called the Nevada carpenters cry babies? 12 The record establishes that Davis never had less than five carpen- ters on his crew. Sec. XXI of the collective-bargaining agreement, in part, states that a foreman, with five or more journeymen on his crew, may not work as a journeyman, except in assisting a ,journeyman or for the purpose of instruction. 11 As to working with his tools, Davis asserted that such was limited to "when I felt it was appropriate or needed to assist in the work or in a teaching .. opportunity or when I had to show somebody how I wanted the work done " A. Their union contract is-a lot different than Ar- izona's union contract and the circumstances that were up there where we were in a remote area,- and they expected to have when they came on the job the exact same things they had in Las Vegas, and when we were trying to suit that the best that we could, all being out of state and starting to fa- miliarize ourselves, Mike Herndon was a great help in that he told us, you know, he brought things to our attention, but I mean, a lot of the stuff that they were crying about we were trying to work on and they just kept harping and crying about. And the- Q. Who is they? A. The carpenters from the State of Nevada. Q. Yeah, but were these complaints directed to you personally? A. No they weren't. Q. So why were you using the term cry baby? A. Because that is what I'thought they were, and that is what I think they are still. Q. Were you referring to Herndon when you used that terminology? Was he being a cry baby, for bringing those complaints to you? A. No. Q. Then who was the cry baby? A. The Nevada carpenters. Q. Okay, but not Mr. Herndon for bringing the complaints to you? A. Not Mr. Herndon for bringing the complaints. Q. All right. So the people who brought the complaints to Mr. Herndon were the cry babies? A. Yeah. Q. Did you have anyone in particular in mind when you did that? A. No. Q. Did you have any particular incidents in mind? A. No. Q. Did you have any particular complaints in mind? A. No. Q. Then why did you say cry babies? What were they crying about? Particularly, if you know? A. I don't recall. Q. But surely you had something in mind when you were calling everyone-all these Nevada car- penters cry babies. You must have had something in mind. MR. FOSTER: The witness is naturally trying to assist Your Honor_ in getting to the facts, I am not sure that he really knows what questions he is being asked. BY JUDGE LITVACK: Q. Do you understand the questions I am asking you? A. Not really. I-I mean- Q. You did call those people cry babies? A. Yes. BUCK BROWN CONTRACTING CO. 497 Q. All right. To management people and maybe to others? A. -I can't- Q. Well, you either did or you didn't. A. Yes, I called them cry babies. Q. What I am asking you is what you were get- ting at when you made those statements. What were you referring to? A. Is not a person entitled to his own opinion? Is not a person entitled to free conversation with somebody else? Q. Whether you- A. That was a- Q. Go ahead. A. That was a passing comment that they were a bunch of cry babies, that- Q. Excuse me, was that a common held opinion by other management personnel of Buck Brown? MR. FOSTER: Objection, Your Honor. How can he answer that? JUDGE LITVACK: Q. Was it? A. Yeah, we agreed on it.14 As between Herndon and Davis, I credit the testimony of Herndon. As will'be more closely examined and fully developed in regard to the discharge of employee Robert Kelly, I was not, at all, impressed with the, demeanor of Davis as a witness. The record reveals that other supervisors also reacted angrily and vituperatively to carpenter-employee com- plaints regarding perceived contract violations. Thus, Don Jackson and David Doran testified to a series of conversations with Joe Lively, regarding the latter's al- leged proclivity for performing carpenter work.1 s In early March, according ,to Jackson, 2 days after starting to work at the jobsite, he observed Lively loading mate- rials and suggested to the latter that Lively have a car- penter do such work. Lively replied that he was the boss and could do what he wanted. Nothing more was said between them; however, Jackson subsequently was present on approximately four occasions during which 14 That Davis' admission was, in fact, Respondent's managerial re- sponse 1e and opinion regarding carpenter employee complaints is clear from the record. Thus, employee David Doran and Crew Foreman Don Jackson, who is a member of the Union, testified about a conversation between Jackson and General Foreman Joe Lively in late April. Accord- ing to Jackson, who I found to be a particularly honest and candid wit- ness, he was informed by another employee that Lively had labeled a carpenter crew, of which Randal Fansler was a member, "a bunch of crybabies because of their demands ...." Annoyed by Lively's suspect- ed slur, after lunch that day, accompanied by Doran, Jackson confronted Lively and "asked hind if he had called all the carpenters ... crybabies, because 'of our demands . He looked me straight in the eye .. and said, 'No. No,, I wasn't talking about you. It's the men down there,' point to the reclaim , tunnel .... 'All they want to do is complain."' Doran corroborated Jackson that the latter questioned Lively as to whether he had characterized the Las Vegas carpenters as crybabies and that Lively responded "that he was just talking about Randy Fansler and his crew." Joe Lively testified in great detail with regard to other matters but did not deny this conversation. Accordingly, I rely on the credible testimony of Jackson that this incident occurred, noting the corroborative testimony of Doran 15 Review of, sec. XXI of the parties' collective-bargaining agreement discloses that general foremen are forbidden to work with their tools on a jobsite. Doran-commented to Lively about the latter doing car- penter work. Jackson specifically recalled one such con- frontation in mid-April when after both observed Lively doing rank-and-file work, Jackson and Doran ap- proached Lively. Jackson stated that he had observed Lively doing carpenter work again and "I pleaded with him, asking t o let us do the work f o r him .. , and that he should do his job as a general foreman and it could really help things get along." Doran then repeated what Jackson had stated, saying "that we believed things would go much smoother." After "indicating he didn't feel as though we had any legitimate complaint," Lively walked away, Fifteen minutes later, he returned and "said he'd like to have a heart-to-heart with us, man to man. He said that we were his two best workers, he ap- preciated the job we were doing, but that if we did not stop our complaining, that he was going to get our checks."16 To this, both Doran and Jackson said that they wanted to do as much work as they could and would not complain as much about Lively's activities; Lively, in turn, responded that he would attempt to per- form less employee work. David Doran testified that he observed Joe Lively on four occasions during April performing carpenter work, normally either signaling to crane operators or hauling materials. On the initial three instances, Doran told Lively that if he needed more carpenters, Lively should hire them rather than perform the carpenter work him- self. After Doran's initial complaint, Lively replied that he could do whatever he wanted but then said nothing after the next two complaints. Doran testified that the fourth incident occurred in late April. That morning, Doran observed Lively performing facets of carpenter work, and he and Jackson approached Lively, repeating that he should hire more carpenters rather than do their work. Lively apparently ignored theln; however, that afternoon, Lively spoke to Doran and Jackson in the yard area. "He told us that if we continued to complain about him doing our work, he was going to have to get our checks." Also,, "he had told- us that we were the best carpenters he had on the job and he would hate to ... get our checks for us but if we continued to complain Lively, who testified that he had been a union carpen- ter for 18 years, does not dispute that such a confronta- tion occurred and stated that he had two conversations with Jackson and Doran in March with regard to per- forming union work. On the first occasion, he was rig- ging panels when Doran and Jackson approached, and both' said that he was required to stop doing the work. Lively responded that he did not have to stop as he had the right to do such work in Arizona and that he would continue until a business agent ordered him to stop. Doran replied that they would inform a business agent. 17 ,16 Such appears to be an industrywide euphemism for a threat of ter- mination. 17 Lively, who admitted being unaware, of the Nevada Carpenters Union work rules, stated that in order to avoid a serious problem, he asked Doran and Jackson to help him do the work-"And so I wasn't taking any work away from a man " 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Later, according' to Lively, when ^ three more panels were ready to be loaded onto a truck, he again began performing the rigging work himself. Just as on the pre- vious occasion, Jackson and Doran questioned his right, as a general foreman, to do carpenter work. Lively re- plied, calling Doran and Jackson his two best` workers and stating that although lie appreciated their efforts, he wanted them to stop complaining. "And I told them that the work was still there. If they wanted it, fine. If they didn't want it, there was the office right over there, and the guy didn't run out of ink; he could write a check for them. That's exactly what I told him."18 Asked why he threatened Jackson and Doran with termination, Lively explained "because' we'd have a lot of problems at the beginning of the job and having a hard time getting start- ed and we couldn't afford to have any union 'problems." Another supervisor who reacted in a similar manner to "problems" caused by' members of the Union was Super- intendent Aiton III. Wendell Bridges testified that imme- diately after being notified of his own termination on May 15 by Supervisor James Easter, he encountered Aiton III near Respondent's office trailer. According to Bridges,'he asked, "Wasn't my work satisfactory?" Aiton III replied, "`That's not the point. I have to back my foremen ' up .... Anyone that creates any problems from now on is going down the road."' Bridges im- pressed me, as being a candid and reliable witness, and Aiton III, who testified at length as to other matters, did not deny this incident. Accordingly, I credit Bridges as to this matter, noting that the coercive comment by Aiton III is , corroborative of the admissions of Don Davis and illustrative of Respondent's attitude toward members of the Union generally.," g B. The Discharge of Randal Fansler 1. Facts Randal Fansler had been a journeyman carpenter for approximately 8 years prior to the instant hearing and a member of the Union since April 1977. Having been re- quested by name by Joe Lively, Fansler was dispatched to work for Respondent at the Anaconda Mining jobsite in Tonopah on March 28.20 At the time Fansler reported to work at the mine project, there were only five or six carpenter employees, including Don Jackson and Dave Doran, working, and for the next 2 or 3 weeks they all worked on the same crew, constructing wall forms for the crusher building under the supervision of "Obie" Bo- diroga.21 Fansler testified that about April 16 or 17 Lively announced that carpenters were needed for work at the reclaim tunnels and that Bodiroga chose Fansler and an apprentice to work at that area, with Lively as the foreman. Two or three days later, Bodiroga spoke to Fansler near the reclaim tunnels, said that Respondent needed "a good man" to run things in that area, and asked whether Fansler would take that responsibility. Fansler refused. According to Fansler, 2 days later, on a Friday, Bodiroga spoke to him again with regard to his offer that Fansler assume responsibility at the reclaim tunnels. Fansler replied that he had reconsidered and would take the foreman position. Fansler further testified that on the following Monday, April 21, he spoke to Lively at the reclaim tunnels area and that Lively gave him the job plans for that area "and said he would get me more money." Although admitting that neither Bodiroga nor Lively specifically stated that he was being promoted to a foreman position, based on the foregoing, the extent of his authority, and his job duties, Fansler believed22 that he had been appointed as the carpenter crew foreman at the reclaim tunnels2S and 1 Lively asserts that after specifically being advised by Union Offi- cials Laub and Kahle that he was not permitted to do such work, he ceased performing any rigging work on the project. 19 Counsel for Respondent argues ,that there is no evidence to support a finding of general , antiunion animus on Respondent's part. He points to Buck Brown, Inc.'s long history of stable labor relations in Arizona, the absence of prior unfair labor practices , the fact that Respondent met with union representatives on several occasions to settle disputes at the jobsite, and Respondent's efforts to solve, or at least alleviate, the aggravating cold drinking water and toilet facilities problems as evidence establishing that Respondent harbored no antiunion animus. Contrary to Respondent, tbelieve the weight of the above-described credited testimony and ad- mission 's strongly suggests that' Respondent's supervisory staff at the-Ton- opah jobsite, either based on forewarning by Buck Brown , or early diffi- culties with the progress of work at the project, harbored a jaundiced view toward members of the Union, who they universally viewed as "crybabies" and were eminently capable of using blatant antiunion threats in order to avoid union problems. Thus, notwithstanding' a history of peaceful labor relations in Arizona, given the pressure that Buck- Brown had been under to perform the job on an open shop basis and Respond- ent's lack of familiarity with union attitudes and practices in Nevada, I have no hesitancy in crediting the evidence adduced by the General Counsel regarding Respondent's-general antiunion animus. Likewise, Re- spondent's willingness to resolve jobsite disputes and to attempt to rectify working condition problems can be traced to the terms of the -parties' collective-bargaining agreement, which requires such resolution of dis- putes and permits the Union to strike if disputes are not settled, and, thus, to its own self-interests 20 The record discloses that Don Jackson was among the first group of carpenters to be dispatched to work for Respondent in Tonopah ; that he subsequently met Fansler and the latter expressed an interest in working on the mine project; and that Jackson recommend the hiring of Fansler to Lively. Si After only 2 or 3 days on the job, Fansler was laid off due to a lack of materials. According to Fansler, Lively assured him that he would be recalled as soon as materials arrived. Indeed, Fansler was quickly re- ferred'to the Tonopah jobsite on April 4 and began working again on April 7. 22 Fansler testified that on April 21 and 22, he supervised the carpen- ter crew's work on the reclaim tunnels, checking -that all form construc- tion was performed in accord with Lively's instructions and making sure that proper materials -weresupplied and utilized, The record establishes such is the normal work of a foreman at the jobsite. Also in this regard, Don Jackson testified that Fansler reported to him that Fansler had been given a foreman position by Respondent. 23 Contrary to whatever Fansler believed, Joe Lively testified that not only did the former specifically refuse to become a foreman, but also Fansler had ultimately been offered-and accepted-a leadman position. According to Lively, inasmuch as- Bodiroga planned to be absent from the project for a short period and in recognition of his superior work, Fansler `was offered a foreman ,lob by first Bodiroga and then Lively. However, "he told us flatly. He said, I don't want the foreman's job." At that point, continued Lively, "I- said, well, I'll just make it right by paying you more money and just call you a leadman. So that's what we did." Lively added, "And we also told him that we were just starting to build this thing and that if he produced . . . he would probably have a crew all of his own .. BUCK BROWN CONTRACTING CO. worked that day and the next under that assumption. By the following Wednesday, April 23, the carpenter crew under, Fansler had increased from four to six employees. Therefore, on that day, prior to 9 a.m., Fansler ap- proached Lively in the reclaim tunnels area and an- nounced that he would no longer use his tools as there was more than the contractual quota of four men on his crew. Lively replied, "`You're not a foreman. I'm giving you welder's pay."' Fansler responded that if such was his wage rate, he did not want supervisory responsibility and that he would rather work with his tools. Lively left the area, and Fansler announced to his crew that he was not a foreman as he was no longer being paid a fore- man's wages;24-that he no longer wanted the duties of a foreman; and that the crew should look elsewhere for su- pervision. The record establishes that later that morning during a break period, Fansler spoke to Job Steward Herndon and complained that Lively was not properly compensating him for his job duties as a foreman. Fansler explained that he thought he had been performing foreman duties and believed he was, in fact, a foreman and said that he wanted the matter resolved. Shortly after lunch, Hern- don reported back to Fansler that he had not received a satisfactory explanation from Respondent and that he had spoken to Elmer Laub, who would visit the jobsite the next day. Two hours later, at approximately 2 p.m., Lively approached Fansler in the reclaim tunnel area. According to Fansler, Lively "asked me why I had come in contact with [Herndon]." Fansler replied that when anyone tried "to screw" him out of pay, he was entitled to speak to the job steward in order to resolve the matter. Lively responded, "Well, all you Las Vegas carpenters are a bunch of crybabies anyway." After Fansler tried to defend the reputation of the Union, Lively turned and walked away. Later that afternoon, according to Fansler, in an obvious attempt to assuage Fansler and defuse a potential problem for himself and Respondent, Lively spoke to Fansler and apologized, stating that the foregoing resulted from a misunderstand- ing, that Fansler was a good worker, and that Lively hoped that Fansler did not quit. Lively's efforts were too late and to no avail, for Union Officials Laub and Kahle visited the jobsite the next day. According to Kahle, he and Laub spoke to Lively that morning, raising the matter of Fansler's status as a foreman and his payment in that job classifica- tion. Lively replied "That Randy was a good hand and that he would like to give him the pay, but his manage- ment wouldn't allow him to pay the extra money on the situation." However, Lively did agree to make up what Fansler lost "in the guise of overtime pay," and Laub said that he would speak to Fansler. Kahle further testi- fied that Laub presented the settlement to Fansler and that the latter accepted the bargain. Thereupon, accord- 24 According to the union collective-bargaining agreement job classifi- cation and wage rate schedule, "the hourly wage scale for foreman shall not be less than 10 percent more than the hourly wage scale of the crafts- men over whom they have supervision." Further, as of April 23, a car- penter welder earned 35 cents more per hour than a journeyman carpen- ter. As Fansler testified, he expected to earn more than what Lively ap- parently was willing to pay. 499 ing to Fansler, he and Laub met with Lively in the re- claim tunnel area. Lively repeated what he said the pre- vious afternoon-apologizing and saying it was all just a big misunderstanding. "He shook my hand, said that we'd get the pay matter straightened out for the three days that I was foreman through welder's pay . . . and that he again hoped I wouldn't quit and needed me as a worker on the project." Fansler admitted that this settle- ment was a "satisfactory" resolution of the problem; that by his termination date, he had received all the payment which, he believed, was due him; and that I never had another cross word with [Lively]." Lively's version of ' the resolution of the aforemen- tioned dispute differs substantially from that of Fansler and Kahle. He testified that shortly after Fansler accept- ed the leadman position, while Lively was driving toward the crusher building, he observed Fansler talking to Herndon at least 100 yards from Fansler's work area. Later, Herndon approached Lively and said that there was a problem with Fansler because "he's short some money." Lively replied that the matter could be straight- ened out because money is not a problem. Thereupon, according to Lively, he spoke to Fansler who appeared to be upset. "I asked him ... Mike says you got a prob- lem." Fansler responded that "his pay was all messed UP. 1125 Lively replied that such could be easily correct- ed.26 "And I took him in the truck over to the office and between Flinchum and I, we got it straightened out.,, Lively specifically denied the involvement of the Union in this matter-"[t]he Union officials didn't have anything to do with it."27 85 Fansler and Lively contradict each other not, only as to conversa- tions regarding the pay dispute but also as to the basis of the dispute. Thus, to Fansler, the matter concerned his job classification and accom- panying wage rate; although Lively testified that the dispute merely con- cerned Fansler's receiving the wrong amount of wages As between Fansler and Lively, I credit Fansler inasmuch as he impressed me as being a more truthful and forthright witness than Lively. Accordingly, I credit Fansler that the dispute concerned his entitlement to be paid at the foreman's wage rate. Further, notwithstanding that he may not have specified that Fansler would be placed in a foreman position, I do not credit Lively that he offered, and Fansler accepted, a'leadman position at the carpenter welder wage rate. In this regard, I note that there is no such classification in the union contract; that Fansler ,, who exhibited a fa- miliarity with the terms of the agreement, would not , I believe, have ac- cepted promotion to a nonexistent position ; and that Lively, who admit- ted no, knowledge of the union contract , stated that there was not even a leadman classification in the Arizona Carpenters Union contract. Based on the foregoing, what is clear is that after he -spoke to Lively on April 21 and after the latter handed the job plans to Fansler on that date, Fansler possessed a good-faith belief that he was the carpenter foreman at the reclaim tunnels. 26 Lively denied that Fansler was a crybaby for going to Herndon with his problem but admits, "I asked him why he didn't discuss it with me first." 27 Lively did admit that his resolution of Fansler 's pay problem was disclosed to union officials-"That was mentioned , but we told them im- mediately it had already been taken care of" Lively places this disclosure at a time of, a dispute with the Union over subsistence payments to union members. Such a meeting did take place, with Respondent ultimately agreeing to apply a double time rate but not agreeing to the Union's in- terpretation' of the collective-bargaining agreement. However, whether Lively discussed the Fansler problem is highly doubtful inasmuch as, ac- cording to R. Exh. 25, the subsistence dispute was apparently resolved about April 11-at least 10 days prior to the date Fansler was placed in charge of the carpenter crew at the reclaim tunnels. 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I have previously noted that Cliff Kahle impressed me as being an honest and candid witness and as -between Fansler and Lively, I found the former to have been the more , honest and forthright . Accordingly, I credit the testimonies of Fansler and Kahle as to resolution of the pay dispute-particularly with regard to the Union's in- volvement therein.28 I further note that Lively asserted that he and,.Flinchum; Respondent's office- manager, re- solved the Fansler matter . However, Flinchum, who tes- tified with regard to his involvement in several payroll disputes, did not corroborate Lively as to this matter. After the resolution of his wage dispute , Fansler con- tinued working at the reclaim tunnels on the carpenter crew. Approximately I week later, , Lively informed Fansler that he was needed by Bodiroga to work on the latter's carpenter crew at the crusher building while con- crete pours were ongoing and that when these were completed, he would be transferred back to the reclaim tunnels crew. Thereafter, until his discharge, Fansler worked on the crew that was supervised by Bodiroga. According to Fansler, during this time period he spoke to Bodiroga and Lively several times about returning to the reclaim tunnels area and both said that he could ulti- mately do so.29 Finally, in the afternoon of May 5, Bo- diroga told Fansler "that I was going to be transferred to the other crew shortly 'and he hated to lose me." Fansler testified that at ' approximately 12 noon on May 6, Bodiroga informed him that he should have his tools ready" by 2:30 p.m. as he would be transferred to Don Jackson's crew. Thereupon, Lively approached him in a pickup truck at that hour; Fansler loaded his tools in the back and got in. Contrary to his expectations, Lively handed him a check and a termination notice, saying "Here's your money."30 After studying the notice, Fansler asked why he-was being terminated "in that he knew , darned ' well that I was a qualified workman " Lively replied "that he ,didn't need a `reason to fire me, that my job was ended and that was that." Lively stopped the truck in the parking lot . Fansler got out, noticed Herndon ' standing nearby, and asked the latter to ascertain the reason for Lively's' action. There- upon, Fansler accompanied Herndon over to Lively, and Herndon asked Lively for an explanation. Lively replied 23 This, I believe, constituted Lively's second dispute with the Union-first being his rebuke from union officials regarding his practice of performing unit work, including the rigging of panels. The record es- tablishes that as a union member, Lively was well aware of the possibility of fines for violating union work rules. - 29 When Fansler was transferred to Bodiroga's crew, Don Jackson was promoted to foreman over the carpenter crew at the reclaim tunnels. Jackson credibly testified that he immediately requested that Lively transfer Fansler back to his crew and that Lively agreed, saying he needed Fansler at the crusher building because of a manpower shortage there and Jackson could have Fansler on his crew `once they got squared away ..... Jackson further testified that he renewed his re- quest for Fansler about 10 days later and that Lively replied that the work,on the crusher building was almost completed and Fansler would be placed on Jackson's, crew that afternoon or as soon as possible Ac- cording to Jackson, Lively said nothing about problems with Fansler's work either in these conversations,or at any supervisory meetings, during which Lively did complain about other employees. Lively did not deny this testimony. 30 The termination notice bore a checkmark next to the notation, "Too slow-poor work." that he did not need a reason-Fansler was fired and that was the end of it. - Meanwhile, a supervisory meeting was scheduled for that afternoon. Several foremen were already assembled in Respondent's trailer when Don Jackson arrived. He immediately was informed that Fansler had been termi- nated that afternoon; when Lively walked in, Jackson asked him what had happened and for an explanation. According to Jackson's - credible testimony,' Lively re- plied that he did not want to talk about it; Fansler had been fired, "that's it." Jackson said, "`You just have a personal problem with Mr. Fansler . . ."; Lively re- sponded, "`Yes; I do."' Jackson thereupon said that he had specifically requested certain men for his crew; that Lively had agreed; and "that if he didn't hire Mr. Fansler back, that if he didn't put him on my crew, that I would quit . . . ." Lively just shrugged his shoulders and said okay.31 Jackson stormed out of the meeting and met Jim Joy as the latter was walking toward the trailer. Jackson explained what had happened and asked Joy to rehire Fansler. Joy "told me that he . . . did not want to override Mr. Lively's decision," After speaking to Herndon and Lively, Fansler re- turned to the dry camp and began informing other car- penters of his discharge. Previously angered over per- ceived contract violations, including the lack of cold drinking water and sanitary toilet facilities, the carpenter employees became incensed over what they, believed constituted an unjustifiable dischar a and calls for a wildcat strike ensued. That night, Fansler telephoned Laub, in Las Vegas and requested that he and Kahle come to Tonopah- as soon as possible. The record establishes that both ''Laub and Kahle vis- ited the jobsite and dry camp the next day (May 7) and that their major concern, in view of the perilous =nature of the Union's, relationship with Respondent, was ' the possibility of a wildcat strike over Fansler's termination. Thus, according to, Kahle, investigating the strike threat was his and Laub's main - concern that day. Kahle testi- fied that on arriving at the mine project he, Laub, and Herndon met with Jim Joy and Lively in Respondent's office trailer. Regarding Fansler, Lively stated that Fansler "had, dropped the ball" since the union officials had last been on the, project. Kahle asked, why, inas- much as 2 weeks before Lively said that Fansler was a topnotch hand. Rather than offering an explanation, Lively repeated that Fansler had just "dropped the ball" after acting as foreman, Laub then stated that he want to patch up all differences and to have Fansler return to work. Joy responded that, he would back up his men and that when a decision was reached, he would back them "100 percent." At thatLpoint, according to Kahle and as described above, the discussion concerned the possibility of a wildcat, strike. The meeting concluded with a discus- sion of the drinking water and toilet problems and Re- spondent's efforts to correct these. While stating that Afton Jr. also attended, the meeting, Herndon's testimony regarding what was discussed is corroborative of Kahle's version. According to the job steward, the meeting 31 Lively failed to deny this conversation. BUCK BROWN CONTRACTING CO. began with Kahle raising certain problems regarding working conditions-including the lack of cold drinking water and the unsanitary toilet facilities. Joy replied that Respondent was , trying to obtain an, ice machine and have the outhouses cleaned more frequently. Kahle then mentioned Fansler and asked if he could be reinstated onto another crew, under a new foreman. "Joy said that it was his foreman's decision to terminate him and that he was going to back his foreman's decision on that matter." Laub responded that Fansler had been offered a foreman's job 2 weeks earlier and that he did not under- stand why he was now being terminated for poor, slow work. Lively replied "that in that two week period he had just changed his attitude toward the whole job any- more." Thereupon, after discussing the employees' threat of a wildcat strike,, as described above, Joy agreed that Don Jackson could return to work as he performed well as a foreman and Respondent Wanted him baCk.32 Denying that the pay dispute, at all, influenced his de- cision, Lively stated that Fansler was discharged "be- cause his work had ceased almost. From the time that the incident happened ... he steadily progressed down- hill. He wouldn't do anything that you programmed him to do. He would do it, but it was slow and just an atti- tude that you can't live with when you're trying to build something." As an example, Lively testified that on one occasion, he approached Fansler and observed the latter just standing there, looking around. When he asked why, Fansler replied that he needed "some 4 x 4's." Lively further testified that a stack of such pieces was located no more than 20 to 30 feet from where Fansler stood. Admitting that, as was his practice, he never discussed what he noticed about Fansler's deteriorating 'work habits with the latter, Lively testified that he did speak to Fansler on one occasion subsequent to the resolution of the pay dispute: "I asked him ... if he still had any bad feelings . . . about, the money or anything else. And he said, no. But he didn't produce."33 Finally, Lively corroborated Fansler that the latter was extremely upset over the reason for his termination, saying, "I don't un- derstand how you can do that ...." 34 , Regarding his work after having been transferred to Bodiroga's crew on the crusher, Fansler testified that the former praised his work many times. ,Further, according to Fansler, he did things "beyond the call of duty" such as spotting a bad tie rod and reporting it.' He denied ever having been told what to do. Corroborating Fansler, car- penter Charles ,DeLong, who reported for work at the, jobsite on approximately -April 21 and worked alongside 32 Fansler testified that Kahle and Laub came to the dry camp after speaking to Joy at the jobsite. No work was performed that day because of inclement weather conditions . The carpenters were gathered in a group, and after the union officials arrived, Laub reported on his meet- mg. He announced that Respondent would ' rehire Jackson but not Fansler. When calls for a strike ensued , Laub calmed them, advising that a strike would be detrimental to, their, and the Union's, interests. 33 Apparently this conversation, occurred prior to Fansler's transfer to Bodiroga's crew, for, according to Lively, the move ,was influenced by his hope that Fansler would improve. 3' As to whether at the time of, Fansler's discharge, he was aware that Fansler had received all the extra wages to which he was entitled , Lively' testified, "I think he'd received it the week before if I'm not mistaken because it wasn't that much." 501 Fansler at the crusher building, testified that Fansler was a very good carpenter and that he heard no foreman ever complain about his work. Also with regard to Fansler's job performance, Mike Herndon, who was on the carpenter crew at the crusher building, testified, "I thought he was a good carpenter and a knowledgable carpenter." The General Counsel contends that a cause of Fansler's termination was his complaining about the job- site toilet facilities during the weekly safety meetings. According to Fansler, these meetings were held each Monday and were attended by all employees, including the entire supervisory staff. Jim Joy conducted the ses- sions; the purpose was twofold-to,discuss, promote, and improve safety conditions and to "air" employee gripes and job complaints. Fansler further testified that employ- ees generally complained about the less than adequate toilet facilities, the lack of cold drinking water, and other perceived contract violations. He stated that he was one of the complainers and that he spoke up at several meet- ings regarding the number of and the condition of the toilets on the jobsite. During cross-examination, Fansler admitted that several other employees raised the identical complaint and that his complaints did not "stand out."- "I just said, `Hey, the toilets stink. They're not clean."' 2. Anaylsis The consolidated amended complaint alleges that Fansler was discharged by Respondent in violation of Section 8(a)(1) and (3) of the Act. The General Counsel contends that Fansler was terminated by Respondent for having engaged in protected concerted activities, includ- ing complaining about the lack of and unsanitary nature of the jobsite outhouse facilities, demanding foreman's wages, and involving his job steward and ultimately the Union in the latter dispute. Counsel further contends that Lively harbored animus -toward members of the Union and that the reasons that were advanced by Respondent for Fansler's discharge are pretextual in nature. Contrary to the General Counsel, Respondent argues that there exists no record evidence of animus towards Fansler in-, asmuch as his pay dispute was satisfactorily resolved and apparently not a subject of contention at the time of his discharge. Further, it is argued that Fansler was termi- nated for cause and not based on his involvement with the Union or other protected concerted activities. As recognized by the parties, a determination of the le- gality of Fansler's discharge and, indeed, that of the other alleged discriminatees is governed by the tradition- al precepts of Board law in Section 8(a)(1) and (3) dis- charge cases, as modified by the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). Thus, in order to establish a prima facie violation of Section 8(a)(1) and (3) of the Act, the Gen- eral Counsel must establish (1) that the individual en- gaged in union or other protected concerted activities; (2) that the employer had knowledge of the activities; (3) that the employer's actions were motivated by union animus; and (4) that the discharge had the effect of en- couraging or discouraging membership in a labor organi- zation. WMUR-TV,, 253 NLRB 697, 703 (1980). Further, 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the General Counsel has the burden of proving the aforementioned by a preponderance of the evidence. Gonic Mfg. Co., 141 NLRB 201, 209 (1963). Although the aforementioned analysis was easily applied in cases in which the employer's motivation was straightforward, conceptual problems arose whenever dual motivation was involved-the presence of both a lawful cause and an unlawful cause for the discharge. In order to resolve this ambiguity, in Wright Line, supra, the Board estab- lished the following causation test in all 8(a)(1) and (3) cases involving employer motivation. "First, we shall re- quire that the General Counsel make a prima facie show- ing sufficient to support the inference that protected con- duct was a `motivating factor' in the employer's decision. Once this is established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." Id. at 1089. Two points are relevant to the forego- ing test. First, in concluding that the General Counsel has established a prima facie violation of the Act, the Board will not "quantitatively analyze" the effect of the unlawful motive. The existence of such is sufficient to make a discharge a violation of the Act. Id. at 1089 fn. 14. Second, although apparently warranting the identical analytical approach, pretextual discharge cases should be viewed as those in which the "defense of business justifi- cation is wholly without merit." Id. at 1084 fn. 5. Herein, there can be no question that Fansler engaged in union and other activities protected by the Act. Thus, I have previously concluded that, although unstated, Fansler believed in good faith that he had been promot- ed by Lively to the position of foreman;35 that Fansler's demand for higher wages was based on the formula for determining the wage rate for a foreman as set forth in the Union's collective-bargaining agreement; that Fansler sought and obtained the aid of the Union in his ,pay dis- pute with Respondent; and that union officials were in- strumental in concluding a settlement of the dispute with Respondent. The Board has long held-and Respondent concedes-that in seeking an employer's compliance with the terms and conditions of an existing collective- bargaining agreement, an employee engaged in union and protected concerted activities within the meaning of Sec- tion 7 of the Act and that an employer engages in con- duct violative of the Act by disciplining an employee for the activity. NLRB v. Pioneer Concrete Co., 637 F.2d 698 (9th Cir. 1981); City Disposal Systems, 256 NLRB 451 (1981); Corry Jamestown Corp., 238 NLRB 320._(1978); Adams Delivery Service, 237 NLRB 1411 (1978); Roadway Express, 217 NLRB 278 (1975). This is so notwithstand- ing that an employee may act on an individual basis, for complaints under a contract are to ,the interest and bene- as,I specifically reject the argument of counsel for Respondent that Fansler could not have believed that he had been promoted to the posi- tion of foreman. This argument is solely based on Fansler's admission that neither Bodiroga nor Lively uttered the word "foreman " to Fansler. However, Fansler credibly testified that on April 21 and 22 he performed all the duties that are associated with that position. Further, I have dis- credited the testimony of Lively that Fansler accepted promotion to a leadman position. Finally, and most significantly, based on the Union's collective-bargaining agreement, there exists no other position but fore- man to which Fansler could have been promoted inorder to "run things" at the reclaim tunnels area. fit of, all employees and the punishment of a complaining employee necessarily,may tend to inhibit other employ- ees from, -implementing the protections afforded by a union contract. Bay-Wood Industries, 249 NLRB 403, 406-407 (1980); Corry Jamestown, supra at 323; Delta Electric, 236 NLRB 1108, 1112 (1978). Further, the merits of the employee's complaint- are irrelevant. G & M Underground Contracting Co:, 239 NLRB 78 (1978); Per- renoud, Inc., 236 NLRB 804, 805 (1978); United Parcel Service, 234 NLRB 483, 491 (1978). The Board has also long held that efforts to enlist the assistance of a union in raising complaints concerning working conditions or grievances under a collective-bargaining agreement con- stitute union and protected concerted activity and that disciplining an employee for doing so interferes with, re- strains, and coerces employees and tends to discourage union activities in violation of Section8(a)(l) and (3) of the Act. Harper & Arterburn Co., 255 NLRB 760 1981); Perrenoud, Inc., supra; Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). Respondent further concedes-and the record clearly establishes-that it was well aware of Fansler's contrac- tual assertion and the Union's role in the dispute. What Respondent disputes is the assertion of the General Counsel that the aforementioned were the motivating factors in Lively's decision to discharge Fansler. Close scrutiny of the record establishes the existence of ample evidence of union animus. Initially, I reiterate my prior conclusions that Respondent's supervisory staff generally viewed members of the Union as "crybabies" for con- stantly complaining about, perceived contract violations and that supervisors utilized blatantly coercive threats to dissuade union employees from engaging in protected ac- tivities. Specifically, as to Joe Lively, I have credited the testimony of Don Jackson,, as corroborated by David Doran, that Lively threatened to terminate them if they did not stop complaining that he was performing carpen- ter work in violation of the collective-bargaining agree- ment. In this regard, Lively admittedly complied only on being informed by union officials that to continue to do so would be in violation of the Union's work rules, which, he was well aware, would subject him to the pos- sibility of fines. That the involvement of the Union in work disputes was an anathema to Lively is clear from his comment to Fansler (why didn't Fansler come to him first) on learning that the latter had complained to job steward-and union agent-Herndon about his wage dis- pute. In that same conversation, Lively called Fansler and the other union employees "crybabies." I specifically credit Fansler's uncontroverted testimony in this regard, noting that Lively did not controvert the testimonies' of Jackson and Doran that Lively later repeated this same epithet to Jackson,. Finally, in agreement with the Gener- al Counsel, I found wholly incredible Lively's testimony in which he attempted to minimize the involvement of the Union in Fansler's wage disputer Not only is such at utter variance with the credited testimony but also it clearly buttresses the contention of the General Counsel that the involvement of the Union in Fansler's dispute- and the concomitant possibility of internal union disci- BUCK BROWN CONTRACTING CO. pline for his conduct-was the motivating factor in Live- ly's discharge of Fansler. Respondent makes two main arguments in support of the lack of union 'animus. First, counsel contends that Fansler's wage dispute was settled and no longer a matter of controversy when Fansler was terminated. In this regard, counsel points out that both Fansler and Kahle testified that the pay dispute was satisfactorily re- solved; that, according to Fansler, Lively was apologetic to him and to the union officials over the problem; that, according to Fansler, his relations with Lively after the settlement of the dispute were extremely cordial; and that both Herndon and Kahle testified that Lively men- tioned Fansler's deteriorating job performance as the reason for his discharge. Although quite cogent and logi- cal, I nevertheless am not persuaded by these arguments for the following reasons. Lively did not deny Don Jack- son's credible testimony that at a supervisor's meeting subsequent to, Fansler's discharge, in response to Jack- son's comment that Lively had a personal problem with Fansler, Lively said, "`Yes, I do."' I find this comment to constitute, in effect, an admission, for I believe it more likely that Lively would be candid as to the true reasons for his conduct in the "friendly" atmosphere of a super- visor's meeting than in the "adversarial" atmosphere of a meeting with union officials. Again, Lively's attempt to minimize the involvement of the Union in the pay dis- pute strongly supports this view and suggests, that such was, indeed, his personal problem with Fansler. Further, in agreement with the General Counsel, aware of the possibility of internal union disciplinary procedures, Lively's apologetic attitude toward Fansler and the union officials at the settlement meeting and his later cordial attitude toward Fansler is not surprising. Re- spondent's second contention concerns the timing of, the discharge, occurring at least 12 days after resolution of the pay dispute and at a time when such was "seemingly a dead issue." This, I believe, obfuscates the true issue, for rather than the dispute itself, the record' establishes that Fansler's involvement of the Union' in the matter was the motivating factor in his,discharge. Also, accord- ing to Fansler, his discharge coincided with the comple- tion of Respondent's compliance with the terms of the pay settlement, a fact, the record reveals, about which Lively. was apparently aware. Finally, a lapse of time be- tween displays of animus and a discharge does not, with- out more, negate substantial evidence of unlawful animus. Lauderdale Lakes. General Hospital, 227 NLRB 1412, 1413 (1977). Based on the foregoing," and the record as a whole, I believe that the General Counsel has made a prima facie showing that Respondent's deci- sion to terminate Fansler was based on unlawful consid- erations-his involvement of the Union in his wage dis- pute with Joe Lively.37 86 I note Respondent's reliance on Vogt-Conant Co., 248 NLRB 500 (1980), as support for its arguments regarding the discharge of Fansler. Suffice to say, if I viewed the facts as urged by counsel, the decision would be determinative. I believe the record clearly supports-and war- rants-the conclusion that Respondent did, indeed, harbor animus to- wards Fansler for his actions. 97 I place no reliance on Fansler's "complaints" at Respondent's weekly safety meetings as a motivating factor for his discharge. Thus, his 503 The burden of proof, thus, shifted to Respondent to demonstrate that it would have reached the same deci- sion and taken the same action notwithstanding ]Fansler's protected concerted activities. In establishing its defense, Respondent relies solely on the uncorroborated testimo- ny of Lively who testified that after the resolution of the pay dispute, Fansler's job performance "steadily pro- gressed downhill" and his work was slow. The only ex- ample that Lively was able to relate was an incident during which Fansler, apparently ignorant of a, nearby supply of wood, stood helplessly, unable to locate a 4 by 4 piece of wood. Analysis of the record convinces me that this evidence is pretextual and wholly without merit. Initially, as I have previously stated, Lively did not im- press me as being a particularly honest or candid witness, and I cannot credit his testimony. In this regard., Lively did not controvert the credible testimony of Don Jack- son that, while identifying several other bad workers, Lively never once complained about Fansler's deteriorat- ing work quality and, in fact, on two occasions promised that Fansler would be transferred to Jackson's crew when work permitted. Also, if Fansler's work was dete- riorating, it is strange that Lively would not speak to the former and either ascertain why or warn him to improve or face discharge. Yet, Lively admitted not doing so, and I cannot accept his explanation that, he normally left such problem employees alone. , In , this regard, Lively could not even give an, explanation to Herndon and Fansler for the latter's discharge. Further, the individual who was most closely aware of Fansler's job perform- ance prior to his discharge was his foreman Bodiroga. Yet, Respondent failed to call him as a witness to cor- roborate Lively's unsubstantiated testimony. Presumably, he would not have done so.38 Finally, several witnesses testified to the quality of Fansler's work as a carpenter, stating such was of a high quality. Accordingly, I do not believe that Respondent has met its burden of proof as to the discharge of Randal Fansler and conclude that he was discharged in violation of Section 8(a)(1) and (3) of the Act.39 conduct was hardly disruptive or outstanding, and Fansler admitted that his toilet complaints merely echoed those of numerous other employees. 311 Utilizing the Wright Line, supra, rationale, it was Respondent's burden to establish that Fansler would have been discharged notwith- standing his union activities, and it was, therefore, Respondent's obliga- tion to all its own corroborative witnesses. In this regard, it cannot be said that Bodiroga would have been a neutral witness , for as Respond- ent's foreman, he presumably was under the control of that party. I am not unmindful of the Board's recent dicta in Wayne Construction, 259 NLRB 571 at fn. 1 (1981), but note that the cited decision involves a neu- tral employee witness. Bodiroga can hardly be so considered. See Color- flo Decorator Products, 228 NLRB 408, 410 (1977), as Counsel for Respondent points to the testimonies of Herndon and Kahle as corroboration for Lively's, explanation for Fansler's discharge. I do not agree. Although both testified that, during the meeting subsequent to the discharge with Lively and Joy, the former explained that Fansler was discharged because of deteriorating work , in light of Lively's admis- sion to Jackson that there was a personal problem between Fansler and himself and Lively's statement to Fansier at the time of the discharge that Lively did not need a reason to fire Fansler, I believe that Lively was less than candid in his reply to the union officials on 711 Gay 7. 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. The Discharge of Robert Kelly 1. Facts Robert Kelly, who has been a carpenter by trade for 10 years and a member of the Union for approximately 3 years, visited Respondent - at the Tonopah jobsite on April 23, accompanied by two other carpenters. They spoke to Lively and Aiton Jr. and the latter took their names and telephone numbers. Kelly was called "by name" the next day at the Union's hiring hall and was dispatched to work for Respondent at the mine project. He reported- for work that same day (April 24) and worked until his discharge on May 14. The record re- veals that Kelly's foreman during his employment by Re- spondent was Don Davis; that in his initial few days , of work he worked directly for Davis, constructing wall forms in the ball-and-sag area of the concentrator build- ing; that he was transferred to the yard area for the next 2-week period, working under a working foreman, Larry Perrin;4° and that from May 9-14, Kelly again worked directly under Davis at the concentrator building, build- ing wall forms. The record establishes that all employee complaints to Respondent, regarding working conditions, potential grievances, or other matters, were "'to be channeled through the job stewards-Mike Herndon, for example. The record also establishes that when Herndon, in par- ticular, passed the complaints on to Respondent's super- visory personnel, he was careful never to identify the employee involved. Despite this procedure, the testimo- ny of Robert Kelly indicates that he was not reticent about himself complaining-or, at least, making his feel- ings known-to his foreman, Don Davis, with regard to perceived contractual violations or other matters. Thus, according to Kelly, during his initial period under Davis' direct supervision, he observed Davis, who never had less than five carpenters on his crew, on more than one occasion working with tools or otherwise performing unit work. Kelly testified that after one such instance, he asked Davis if he was allowed to work with his tools, and Davis replied that he was a working foreman.41 In addition, besides speaking out about these matters at the weekly safety meetings, during which Davis was in at- tendance and presumably listening, Kelly complained di- rectly to Davis on several occasions regarding the unsan- itary condition of the toilet facilities near the concentra- tor building and the lack of cold drinking water and/or the lack of an ice machine to cool the tepid drinking water that Respondent did provide. Kelly, who stated that he was the only member of his crew to not follow procedures and to complain directly to Davis about the conditions, recalled one particular conversation regard- ing the outhouse facilities. He approached Davis and said that he did not understand why, on a multimillion dollar project, Respondent could not afford another toilet. Davis replied that cleaning was difficult because of the 40 Although not particularly clear in the record, Don Davis apparently was the foreman in overall charge of the carpenter crew in the yard area. Larry Perrin was paid a foreman's wages to "supervise" the yard work but, for some reason, refused to accept the duties and responsibilities of a foreman. 41 Kelly testified that he also spoke to Herndon about this problem location of the project, and Kelly responded that Re- spondent could obtain more toilets. Other than these matters, Kelly testified that he also complained to Davis regarding a shortage of necessary tools, working at ex- cessively dangerous heights, and the daily starting time.42 According to Kelly, what precipitated his discharge was an incident that occurred on the Friday (May 10) prior to his discharge. He testified that Davis' crew, in- cluding Vern Hawkins, Larry Perrin, two carpenters named Dick and Jim , and himself, was stripping (dismantling) a form that morning and that in-' advertently the kickplate, which holds together the bottom of the form, was not removed. Davis became an- gered at this and directed Kelly to hook the form to a crane and fly the form from its setting. Kelly thereupon completed rigging the form, and while Perrin directed the crane, the remainder of the crew went to -land the form. As this procedure commenced, Perrin and Davis argued over whether the failure to remove the kickplate would affect the stripping procedure, with Davis stating that such would not. He was wrong, for as the crane pulled the form out, the latter was ripped apart. By this time, it was approximately 9:30, and with all the other' crews taking the normal, morning break then, Perrin and Dick just left the area. Seeing this, Kelly turned to Davis, and asked him for the time. When the latter re- sponded, 9:30, Kelly said, "`Well, I guess it's break time,"' Obviously annoyed about what had just occurred, Davis replied, "Kelly, you're not getting a break today." Kelly retorted that the union contract mandated a morn- ing break period43 and that he was going to report Davis' conduct to Job Steward Herndon. Not bothering to reply, -Davis walked,away. He did, however, return to where Kelly. Hawkins, and Jim were working approxi- mately 15 minutes later and said, while still visibly upset, "Kelly, go take your break." Thereupon the three car- penters took their morning breaks.44 Davis did not deny the occurrence of this incident, and I credit the testimo- ny of Kelly as to the incident. Kelly was terminated on May 14. He testified that at 2:30 that afternoon, Davis called him aside and handed 42 Don Davis specifically' denied that Kelly or any other member of the crew, under his supervision , ever complained to bun about the condi- tion of the toilets or the lack of cold drinking water. As to whether Kelly ever complained to Davis regarding the latter's use of tools or perform- ance of union work, Davis generalized during direct ' examination that no crewmember ever so complained ; however, when asked, specifically about Kelly on cross-examination, Davis was considerably less emphatic: "Not that I can recall .... That's a possibility, but I don't recall." I previously stated that I was not at all impressed with Davis ' demeanor while testifying. Further his testimony was contradictory at times and, particularly regarding the-events preceding and causing Kelly's terrains, tion, was vague and at variance with his pretrial affidavit . On the other hand, at least as to the matter of his discharge, Kelly impressed me as being candid and forthright. Accordingly, when they conflict, I shall credit the testimony of Robert Kelly. 43 Sec. 'XVII(j) of the parties' collective-bargaining agreement pro- vides, in part, that so long as work progress is not impeded, a "reasonable allowance" for a refreshment break during the first half of a shift may be granted but that such is not an absolute requirement . Kelly admitted that such could be given on a staggered basis by the employer. 44 Notwithstanding receiving permission from Davis to take his normal break, Kelly subsequently reported the incident to Herndon. BUCK BROWN CONTRACTING CO. him two checks and a termination notice, with the nota- tion "work unsatisfactory." Kelly asked Davis what the problem was, and Davis, other than saying he was not happy with Kelly, refused to give the latter any specific reason for the discharge. According to Davis, when he handed the checks and the termination notice to Kelly, Davis said, "I got a present for you, Bob." Asked why he spoke in such a flippant manner, Davis explained, "Presents can be good or bad depending on the way he looks at them." As to whether Kelly replied, Davis gave conflicting testimony. Thus, on direct examination, Davis recalled that Kelly responded, "I knew this was coming"; while during cross-examination, Davis abbrevi- ated Kelly's alleged response to "I've expected it." This testimony must be contrasted with Davis' pretrial affida- vit, dated just 8 days after the conversation (May 22), in which he professed not being able to recall any response by Kelly. I am convinced that Davis fabricated this testi- mony and do not credit him as to Kelly's alleged re- sponse. Further, Davis' admitted insensate opening com- ment to an employee who Davis was about to terminate is indicative of either utter and supreme naivete, or, more likely, his true feelings toward a perceived union crybaby.' Respondent, almost entirely, relies on the testimony of Don Davis to establish that the discharge of Robert Kelly was solely based on his unsatisfactory job perform- ance. Davis, on whose decision Kelly was terminated, testified that his rationale for doing so was based on his conclusion that Kelly was not "doing the job to my satis- faction, wasn't performing as he should." Davis further testified that four separate incidents, each occurring within the 5-day period' immediately preceding the dis- charge, cumulatively caused him to reach this decision. Before analyzing each separate occurrence, inasmuch as Davis steadfastly maintained during both direct and cross-examinations that no less than four instances, taken together, of work-related difficulties resulted in his deci- sion to terminate Kelly, it is crucial to a determination of Davis' credibility in this regard to point out that in his aforementioned pretrial affidavit, given 8 days after dis- charge, Davis could recall only two such incidents and stated, "I cannot think of any other specific incident of Kelly's poor work."45 In any event, the first of these in- cidents, according to Davis, occurred 4 days prior to the discharge, and began' when he asked Kelly to go inside a form and predrill holes that were needed so that snap ties could be inserted through the form. After a short period of time, Davis observed that Kelly wasn't doing the work-"I mean he'd get frustrated, set the drill down, walk around, try and pick it up and try and do it again." Finally, Davis testified that he was forced to demonstrate how to perform the task correctly. Regard- ing this incident on', cross-examination, Davis admitted that such was not included in his pretrial affidavit; that he did not observe Kelly performing his work on ,a con- 's Asked why his memory was so much better 10 months later, Davis testified that when he gave his pretrial affidavit, he had just been dis- charged from the hospital wherein he had undergone treatment for a gunshot wound. Averring that he gave his affidavit under the influence of pain and a lack of sleep, Davis further testified that he missed gust I day of work and was given no drugs that day. 505 tinning basis that day; and that, contrary to the impres- sion created by his direct testimony, rather than Kelly's inability to -perform the work or his lack of understand- ing of its requirements, what allegedly irked Davis was that Kelly did not take the proper amount of time to complete the job-"in the time that it 'took me to get back to where he was, he hadn't moved far enough." Kelly testified that predrilling holes in forms was standard work and that he was never disciplined for doing such improperly. However, he did testify regard- ing an incident that occurred shortly before his discharge and did involve the drilling of holes. According to Kelly, he and Don Carle, a welder, were assigned by Davis to predrill holes in a form but they soon experi- enced difficulty because Davis gave them improper di- mensions for the holes and, as a result, the ends of the rebar would not fit into the holes. Kelly testified that they did not have large enough drill bits to compensate and that when he and Carle mentioned this to Davis, the latter said to "just use a sledge hammer and pound the knuckles in." Kelly and Carle proceeded to follow in- structions, but the process was taking an excessively long time. Finally, David yelled over to them, asking what was taking so long. Carle yelled back that more men were needed. "And the next thing I knew, [Carle and Davis] were in a heated argument, with Davis ending [it] by threatening to fire Carle." Davis testified that the second alleged contributory in- cident occurred the next day. Kelly was working on a form that day and, according to Davis, at one point in the day, he observed Kelly hanging by his safety belt and doing no work for approximately ?I or 4 minutes. Davis asked why, and Kelly replied that he was out of nails and was waiting for a laborer to bring hint a new supply: Davis responded that Kelly was not helpless and should get his own nails. After Kelly protested, Davis repeated the order, and the former came down from his working height and went to the supply area. Davis fur- ther testified that what, annoyed him was that "'a good carpenter is one , that will, do the work. If he is out of nails, he goes and gets his nails."46 However, during cross-examination, Davis candidly stated it was not un- usual for a carpenter to make such a request of a laborer and that even Davis supplied Kelly with needed materi- als on occasion. Further, Aiton Jr. testified that, depend- ing on the circumstances, Kelly's actions in this instance were not necessarily indicative of poor work. During his direct examination, Kelly candidly admit- ted the incident, placing it on the day prior to his dis- charge. He testified that while working from a safety belt high on a form, he had no nails left and requested his partner, who was on the ground, to obtain a new supply. Davis, who was standing nearby when Kelly made his request, heard Kelly do so and responded that Kelly had no time to wait for' others and that he should get the nails himself. Thereupon inasmuch as, no nails re- mained in the crews' supply bin, Kelly walked across the jobsite in order to obtain a full box of nails. On return- 46 According to Davis, the laborer had not yet appeared; thus, Kelly had not yet even ordered a new supply of nails. 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, according to Kelly, Davis was waiting for him and said that Respondent was on a tight schedule and that Kelly did not have time to waste waiting for someone to hand him nails. - Soon after this incident on either May 11 or, 12 and, according to-Davis, based on the aforementioned two in- stances, he approached his general foreman, Aiton Jr., outside the concentrator, building, said that he was un- happy with Kelly's work performance and that if he did not improve, Respondent should "get rid of Kelly." Aiton Jr. asked if Davis. had talked to ` Kelly about the problem and when the foreman said no, Aiton Jr. "sug- gested that I go talk to Bob and then we observe him for a couple of days and see if his performance improved."47 Accordingly, Davis testified, approximately 30 minutes later, he pulled Kelly away from the other crewmembers and said that he was unhappy with Kelly's performance and that it needed improvement. Davis testified that Kelly somehow indicated that he 'understood. Kelly denied such an incident, testifying that the only such conversation, as set forth above, occurred on his return from obtaining a supply of nails. The third alleged instance of Kelly's poor work prior to his discharge involved his failure to properly tie the corners of a wall form, which work consisted of overlap- ping 2 by 4 pieces of wood and nailing them together. Davis testified that he assigned Kelly this work, that he checked no less than three times as to whether Kelly completed the' work, and that on each occasion, Kelly had not yet performed his assignment. Finally, according to Davis, after ordering Kelly to do the work a third time, the latter did so. During cross-examination, Davis averred that Kelly's actions irritated him: "The consist- ency of having to go' back and say, I need this done ... and then come back and find the person is not working on it or hasn't started it and then having to again tell him to do, it and come back the third time and have to say, do-it now." Despite this irritation, 9 days later in his pre- trial affidavit, Davis could not recall this incident as con- tributing to his reasons for terminating Kelly. For his part; Kelly denied ever having been told more than once by Davis to perform any particular task. Davis testified that the final instance of Kelly's poor work performance occurred on the day of the discharge in the morning. According to Davis, while he was super- vising work at the top of a wall form, he asked Kelly to go get a piece of 4, by 4 wood of a certain length. A pile of wood was nearby, and Davis observed Kelly take what appeared to him to be an inordinate period of time choosing a piece of wood-picking up and discarding several pieces of wood of the wrong length before se- lecting, a larger piece and cutting it to the proper length.- Davis further testified that he was forced to yell to Kelly to hurry as the wood was necessary to the crew's work. On cross-examination, Davis stated that what irritated him was the fact, that, as an experienced carpenter, Kelly 47 Aiton Jr. testified that prior to discharging Kelly, Davis reported the occurrence of just one , work-related problem with Kelly and that such involved Kelly yelling to another employee to bring him (Kelly) a supply of nails-an act that did not please Davis. Aiton Jr. further testi- fied that Davis reported this in one of two conversations before Davis terminated Kelly. should immediately have selected the longer piece and cut it rather than needlessly searching for a piece of wood of the exact length necessary. Notwithstanding that the entire elapsed time for Kelly to find the correct length of wood was just 5 minutes, Davis insisted that time was of the essence as a concrete pour was sched- uled to commence shortly thereafter. As to the signifi- cance of this' incident, Davis admitted that this "one -inci- dent alone' would not have resulted in [Kelly's dis- charge]," but averred that taken together with the prior three incidents, the 4 by 4 incident was important enough to have been a factor in the discharge.48 Finally, I note that although he testified that Kelly -did ultimately bring him a piece of wood of the correct length, Davis contradicted his -pretrial affidavit in which he stated, "I recall that shortly before I discharged [Kelly] I sent him for some 4 x 4's and he didn't get them. I don't recall if I asked him, about, it or if he said why he didn't get them." Kelly denied the occurrence of such an incident.49 After answering questions regarding the above four incidents during cross-examination, Davis was asked if he could recall-any other incident as being a factor in his decision to terminate Kelly. He answered, no, and was immedi- ately confronted with, his pretrial affidavit in which he stated, "Some of his work we had to do over-, although now I cannot recall any specific instances." Thereupon, Davis averred that he was able to recall that such, indeed, was a factor in the discharge decision but that he still could not remember any specific occasions. Besides Davis, Respondent relied on the testimony of Foreman Dennis Jensen to establish that Kelly ' was a poor worker. Corroborated- to this extent by Kelly, Jensen testified that Kelly worked on his crew' for 1 day because another crewmember was ill. According to Jensen, he assigned Kelly to precut some plywood, but the latter did not appear to understand the assignment. Consequently, Kelly did not do the work correctly, and two other men were required to tear down and recon- struct what Kelly had previously done. Jensen further testified that he spoke to Davis that afternoon about Kelly. The latter asked how Kelly was doing, and Jensen replied, "`Piss poor."' Davis responded that Kelly was slow ad that he was not pleased with him. Davis added that he did not know what he was -going to do with Kelly and "in a joking way was asking, hoping I would take him." Jensen replied that he would get his own help, rather than use Kelly. Davis directly contradicted Jensen as to this conversation. Thus, not only could Davis not recall whether Jensen expressed any opinion as to Kelly's work, he specifically denied expressing his 48 In the regard, Davis agreed that taken individually, each of the prior incidents was also trivial. 49 Davis asserted that after the last incident , he became convinced that Kelly was not a competent worker. Accordingly, Davis testified he ap- proached Aiton Jr. outside the concentrator building at approximately 11 a.m. and told the latter that he should get Kelly's check because he was not "packing his weight or holding up his end of the project." The gen- eral foreman asked what he should put on ,Kelly's termination, shp as a reason for the discharge, and after a short discussion, Davis instructed Aiton Jr. to mark whatever was necessary to note that Kelly was fired. BUCK BROWN CONTRACTING CO. own opinion as to Kelly's work ability: "I don't think I stated it to Dennis, no."50 2. Analysis The consolidated amended complaint alleges that Kelly was discharged by Respondent in violation of Sec- tion 8(a)(1) and (3) of the Act. In support, the General Counsel argues that by complaint about perceived con- tractual violations and other matters affecting employees' terms and conditions of employment to Don Davis and at the weekly safety meetings, Kelly engaged in activities that were privileged by Section 7 of the Act. Counsel further argues that Respondent terminated Kelly because of the activities inasmuch as Davis, in particular, be- lieved all union supporters were crybabies and was not reticent about disguising his disgust at union problems on the project. Contrary to the General Counsel, Respond- ent argues that the former has failed to establish that Kelly ever actually engaged in protected concerted ac- tivities, asserting that Kelly's comments at various times to Davis were hardly in the nature of "complaints" about working conditions, and that there exists no evi- dence of unlawful animus. Respondent further argues that Kelly's discharge was motivated by, and directly re- sulted from, his poor job performance. As with Randal Fansler, the record amply supports the conclusion that Kelly engaged in union and other ac- tivities privileged by Section 7 of the Act. Thus, not- withstanding Davis' denial, I have credited the testimony of Kelly that, alone among members of Davis' crew, he either complained or commented directly to Davis con- cerning several perceived contractual violations and working conditions generally. Regarding the. former, Kelly on one occasion questioned Davis about the Tat- ter's use of his tools and- on other occasions complained to his foreman about the lack of sanitary toilet facilities and properly chilled drinking water. Also, in an incident, which, the General Counsel contends, precipitated his discharge, Kelly exacerbated an already awkward situa- tion, involving the destruction of a wall form, by intem- perately complaining to Davis about the latter's refusal to permit him to take a morning break right at that moment. Inasmuch as the aforementioned matters are based on the Union's collective-bargaining agreement, Kelly's conduct in complaining to or questioning Davis about them constitutes union and protected concerted ac- tivity within the meaning of Section 7 of the Act. Pioneer Concrete Co., supra; City Disposal Systems, supra; Road- way Express, supra. Even if not cognizable under the Union's collective-bargaining agreement, Kelly's forego- ing complaints, as well as those relating to working con- ditions in general, including a shortage of necessary tools and work at excessively dangerous heights, involve mat- ters of common and vital concern to all Respondent's so Throughout his testimony, Dennis Jensen impressed me as being biased in Respondent's behalf and as a witness not about tailoring his tes- timony to fit Respondent's version of the facts. In this regard, the record discloses that Jensen was made a foreman by Respondent at the jobsite under rather questionable circumstances. I do not credit his testimony and, noting the contradictory testimony, do not credit the occurrence of either the Kelly incident or the contents of the alleged conversation be- tween Davis and Jensen. 507 employees and, therefore, must be found to constitute protected concerted activity whether or not Kelly acted on an individual basis. Cal-Waits, Inc., 258 NLRB 974 (1981); Rose's Stores, 256 NLRB 550 (1981); Air Surrey Corp., 229 NLRB 1064 (1974); Alleluia Cushion Co., 221 NLRB 999 (1985). Finally, although Respondent belittles the nature of Kelly's remarks, questions, or complaints to Davis, the fact is that all such related to either contrac- tual matters, working conditions, or both. Accordingly, I fmd that all such activity, no matter the form, was pro- tected by the Act. Regarding whether Kelly's aforementioned conduct in- fluenced Davis in his admitted decision to terminate Kelly, for-the General Counsel argues that such was the sole motivating factor. On the other hand, counsel for Respondent argues against the existence of unlawful animus, citing Kelly's own testimony that whenever he voiced a "complaint" or questioned Davies' conduct, the latter responded in measured tones and not vituperative- ly. The latter argument, at first glance, is appealing; however, to fmd it meritorious would be to ignore the ample and persuasive51 evidence of animus. As to this, the record fully warrants the conclusion that such un- lawful animus was in the nature of a personal antago- nism, on Davis' part, directed toward Kelly and based on the latter's propensity to complain and to do so di- rectly to Davis. Several factors lead me to this conclu- sion. Initially, not only did Davis believe that the Las Vegas -carpenters as a group were nothing more than crybabies for raising what they perceived as legitimate contractual complaints but also, I believe, he harbored some sort of resentment' toward the union member/- employees for deliberately "starting all this union shit" at the outset of the project when Respondent was experi- encing significant job-related problems-"`they expected to have when they came on the job the exact same things they had in Las Vegas, and when we were trying .. the best that we could, all being out of state .. . but I mean, a lot of the stuff that they were crying about we were-trying to work on and they just kept harping and crying about." Also, contrary to Davis' denial and expressed lack of animosity toward him or his position as a' union agent, I have expressly credited the testimony of Job Steward Herndon that Davis, on at least two dozen occasions when the former brought employee complaints to his attention, called Herndon a crybaby for doing such. Specifically as to Kelly, however mild his actions may have been, I note that not only did Kelly act out- side the standard communications channel by bypassing Herndon and registering his own complaints with Davis but also Kelly was the only member of Davis' crew to so act. That the inference is warranted that Davis, who al- ready perceived the union employees, as a group, to be crybabies for the exact same conduct, took Kelly's con- duct personally and was so motivated in terminating him, is clear when one considers Davis' admitted remark to Kelly on terminating the latter-"I got a present for you, 51 The admonition of the Board in Wnght Line, supra, is instructive at this point-that in analyzing whether a prima facie violation of Sec. 8(a)(1) and (3) of the Act has been proven, a quantitative analysis of the motivation evidence is not required. 508 DECISIONS OF THE NATIONAL LABOR ,RELATIONS BOARD Bob." I believe that such an insensate and utterly unpro- voked remark is indicative of an individual who harbors unlawful animus against an employee and further believe that Davis' ludicrous explanation for his comment is not worthy of belief. In this context, finally, the events of the previous day, wherein Davis, already upset over the accidental destruction of a wall form, reacted angrily when Kelly began complaining about not being allowed to take a morning break at -that time and threatening to report the matter to Mike Herndon, gain perspective as being nothing less than the precipitating cause for the discharge. In short, I must conclude that the General Counsel has established a prima facie violation of Section 8(a)(1) and (3) as to the, discharge of Kelly. Turning now to a determination as to whether Re- spondent has met its own Wright Line burden of proof and established that Kelly, would have been terminated d- anyway .for legitimate business reasons and notwithstan ing the existence of unlawful, animus, three factors are of crucial importance. First, Don Davis testified that just four work-related incidents-Kelly's failure to predrill holes in a sufficient period of, time,, Kelly's delay in working while awaiting a laborer to obtain some nails, Kelly's failure to properly tie the corners of a wall form, and, lastly, his delay in selecting a 4 by '4 piece of wood of the proper length, all occurring in the 5-day period immediately preceding- the discharge-were determina- tive in Davis' decision-to terminate Kelly. Davis further testified that each -incident, considered separately, was trivial and would not have resulted in discharge but that taken together, a pattern emerged that revealed that Kelly was a poor worker who Respondent could no longer tolerate as an employee. Second, in his pretrial af- fidavit, which was given just 8 days after Kelly's dis- charge, Davis named just two incidents, Kelly's delay in working while, awaiting a laborer to obtain a supply of nails and his delay in choosing a 4 by 4 piece of wood of the proper length, as contributing to his discharge deci- sion and swore that "I cannot think of any other specific incident of Kelly's poor work." The last, critical factor necessary to evaluate Respondent's defense is Kelly's own testimony regarding his job performance. Thus, he specifically denied the occurrence of the other three al- leged instances of his poor work; while candidly admit- ting,the occurrence of an incident involving the procur- ing of a new supply of nails-albeit a different version 'than that of Davis. Further, while denying the predrill- ing of holes incident, Kelly testified to a similar incident involving an argument between Davis and another em- 'ployee. With Respondent's economic justification for the ter- mination of Kelly resting on Davis' testimony that four, separate incidents of poor job performance by Kelly-, taken as a whole, formed the basis for his decision to ter- minate Kelly, I specifically, discredit his testimony re- garding the two alleged incidents (the predrilling of holes and the failure to properly tie the corners of a wall form episodes) not mentioned in the pretrial affidavit, which was taken a scant 8 days after Kelly's discharge. In this regard, I believe Davis''-failure to include the inci- dents as contributory factors to his decision is highly en- lightening inasmuch as an individual's memory of an event is sharpest immediately after the occurrence and dulls significantly as time passes. Flatiron Materials Co., 250 NLRB 554, 559 (1980). Also, I do not credit Davis' explanation for his markedly' clearer memory at the hear- ing'than at the time he gave gave his pretrial affidavit" and specifically credit Kelly's denial of the incidents.53 Ac- cordingly, then, if Kelly would have been terminated re- gardless of his protected concerted activities, the remain- ing incidents that must form the basis for such are the "nails" incident and the "4 x 4" incident. Initially, I note-that it would be intellectually dishonest and illogical to conclude that these latter two incidents justify the discharge of Kelly inasmuch as, by Davis' own admission, four separate incidents, taken together, were the basis for the discharge; as, based on my credi- bility resolution, at least half of Respondent's defense has been fabricated; and as, again by -Davis' own admission, each incident, considered separately, was trivial and did not justify termination. More specifically, as between the conflicting testimonies of Davis and Kelly, I -credit the latter's version of the nails incident. Not only did I find Kelly to be a more trustworthy witness, but also I note that his version is buttressed by 'the testimony of, Aiton Jr. who testified that Davis, reported on this incident during the first of two conversations prior to the, dis- charge of Kelly, a report which, in effect, corroborates Kelly's version of the incident. I also note the grudging admission by Aiton Jr. that Kelly may not, have done anything wrong that day. Finally, notwithstanding the admitted triviality of an incident that consumed just 5 minutes, I credit the testimony of Kelly that the 4 by 4 incident did not occur. In these circumstances, taking into account the record as a whole and in- agreement with the General Counsel, I do not believe -that Re- spondent has met its burden and establish that Robert Kelly would have been terminated notwithstanding his protected concerted activities and find that Kelly was terminated-by Respondent in violation of Section 8'(a)(1) and (3) of the Act. Pioneer Concrete Co., supra; City Dis- posal System,- supra.54 52 Interestingly, Davis' memory had to be refreshed via'his pretrial affi- davit for him to recall that he also listed as a factor in Kelly's discharge the necessity to redo his work on occasion Of course , given 'the time lapse, Davis was unable to recall specific instances of this assertion, 53 I specifically credit Kelly's testimony regarding the confrontation between Davis and Don Carte and believe that Davis utilized this inci- dent as the basis for his predrilling of holes mcident , and fabricated Kelly's involvement. s: Inasmuch as I have concluded 'that Respondent acted in violation of Sec. 8(a)(l) and (3) of the Act in terminating Kelly, I find it unnecessary to decide whether Respondent violated Sec. 8(aX1) and (4) of the Act by refusing to rehire hum. In this regard, I note that there is no evidence in the record that Respondent has yet offered to reinstate Kelly' to his former position, that the practical remedy for the violation, which I have found, encompasses, except for the wording on the notice, the standard remedy for an 8(a)(1) and (4) violation, and that, in,any event, I have grave doubts as to the, credibility of the evidence, which was adduced by the General Counsel in support of the latter allegation, including the tes- timony of Kelly concerning events subsequent to his discharge. BUCK BROWN CONTRACTING CO. D. The Discharge of Wendell Bridges 1. The facts The record establishes that Wendell Bridges, who has been a carpenter for 10 years and a member of the Union since 1978, was acquainted with Robert Kelly, that the latter informed 'Bridges in mid-April that Respondent was continuing to hire carpenters at the Tonopah Mine project, and that one day in late April Bridges took a day off from work and drove up to the jobsite and spoke to Joe Lively about working for Respondent. Bridges in- formed Lively that he was capable of doing any work that Respondent required, and the latter, after taking down Bridges' name and address, said there was a possi- bility that he could use Bridges. Thereafter, about May 8, Respondent requested Bridges by name from the Union's hiring hall. Bridges immediately telephoned Lively at the jobsite and received permission to report for work on the following Monday. ' The record further establishes that Bridges reported for work at the Tonopah Mine project at approximately 7 a.m. on Monday, May 12, and that he was assigned to work on Obie Bodiroga's crew at the crusher building. After working about 1-1/2 hours, Aiton III approached Bridges and ordered him to report to the office area and help construct forms. He did so, and at noontime Aiton III again came over to where Bridges was working and informed the latter that he was scheduled to report for work the next day at 3 p.m. and would thereafter be as- signed to work on the night shift. Bridges responded that he had not been hired to work nights; Aiton III replied that Bridges' name was on the work schedule and walked away. However, Aiton III returned 10 minutes later but this time with Joe Lively. Lively asked Bridges why he would not work nights, and the latter, replied that he had not been hired for that shift. Lively said that he thought he had hired Bridges with that understand- ing, and the latter said no. Finally, Lively asked Bridges if he would try it for a couple of weeks, and Bridges agreed to do so as an experiment.5 s That night in the dry camp area, Bridges spoke to an- other carpenter, Bob Micheli, who informed Bridges that he had been appointed the union steward on the night crew and that the shift was to be 9 hours and not the 10- hour shift that Bridges believed all the other employees of Respondent were working.56 Angered that he was going to lose anticipated wages- by working nights, Bridges drove to the jobsite at 6:30 a.m. the next morn- ing (May 13), went to Respondent's office trailer and en- ss Bridges admitted that the nature of this complaint, concerning being scheduled on the night crew, , was purely personal and involved no one else. 56 Jaynes Easter, who was to be the night crew foreman, testified that he spoke to Bridges sometime that evening and that Bridges told him he did not want to work nights According to Easter, he responded that he had no control over assignments and that he had nothing to do with Bridges being on his crew. The latter replied that he was going to speak to Joe Lively and that he was sorry for going over Easter 's head. Al- though Bridges did not deny either the occurrence of or substance of this conversation, I note that, according to Bridges, he had previously agreed to work on the night shift , as an experiment, that afternoon and that what he was upset about that night was the matter of the number of hours that the crew would work. 509 countered Joe Lively. Bridges told Lively that, he did not mind working at night but that he now learned that the shift was to be 9 hours and that it was not fair be- cause all the other crews were working 10-hour shifts. Lively responded that such was the way it was and that there was nothing he could do about it. Bridges asked if he could work on another crew. Lively replied, no, that ,the night crew was all he could give to Bridges and that if he did not want it, "I don't know what to tell you." According to the uncontroverted testimony of Bridges as to this conversation, he and Lively became more agitated as the meeting progressed.57 Because he was not scheduled to work until later that day, Bridges returned to the dry camp. Approximately 2 hours later, he walked to Bob Micheli's trailer. Jim Easter, the night-shift foreman, was speaking with Mi- cheli when Bridges arrived. During the ensuing conver- sation, according to Bridges, Easter said that the crew was shaping up to be a good crew and that while he also did not like working and being paid for just 9 hours, he felt that eventually the crew would work a 10-hour shift, Bridges agreed, saying that it was unfair to work re- duced hours and estimating a loss in wages of perhaps $200 per week. Bridges further stated that, as he and Easter spoke in Micheli's trailer, Easter ' consumed the entire contents of a pint bottle of vodka. The latter did not deny these events. That afternoon,, the newly formed night crew-58 re- ported for work at 3 p.m. and was assigned to, work in the crusher building area,- finishing the construction of wall forms for the eventual pouring of concrete, the ma- terial t of which the crusher building walls were to be constructed. Bridges testified that for the initial period of the shift, he predrilled holes in a wall form for an inside wall of the building, which work was necessary for the insertion of 6-foot long steel rods, called doaker rods, which rods tie, or hold, the wall form together while the concrete is being poured, and that for the remainder of the shift, he was involved in the actual process of tying that particular form. The record discloses that the work of tying a wall form is a laborious and at times danger- ous (because of the heights at which the men are re- quired to work) process that necessitates the utilization of no less than three carpenters, two stationed outside the opposite walls of the form and one inside. The afore- mentioned danger results from the requirement that, al- though able to rest their feet on 4 by 4 wood blocks ex- tending from outside the form, called slim soldiers, the two outside workers, in order to freely and properly per- form their work, must support themselves solely by means of their safety belts. This should ' be contrasted to the degree of danger faced by the inside worker, who is able to stand on a grid of the doaker rod that are spaced about 16 inches apart. The work involved in the process 57 During cross-examination , Bridges testified that after meeting with Lively, lie sought out Job Steward Herndon and reported on his argu- ment with Lively over the night crew's work hours. Herndon counseled Bridges to be patient as the Union was trying to work things out with Respondent. Thereupon, Bridges returned to Lively and apologized. sa Besides Easter, Michell, and ; Bridges, the crew consisted of journey- man carpenters Larry and Dale _ ,apprentice carpenter Pat Curtis, a laborer, and two crane operators. 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is as follows: one outside man (the feeder) must lean backwards (completely dependent for support on the safety belt) and push with his hands or force, by banging on the end of the rod with a hammer, the 1-1/4 inch in diameter steel doaker rod through the predrilled hole in the panel; thereon, the inside man pulls the rod through that hole and guides it to the corresponding hole in the opposite panel of the form; and, next, the other, outside man pulls the rod through his side and secures it by means of affixing a steel plate, termed a cat-head, over the protruding end of the doaker rod (the feeder also places a cat-head around his end of the rod). It must be borne in mind that inasmuch as the outside men, by ne- cessity, must have their hands free in order to work with the doaker rods, and to catch and tie the cat heads, they cannot work efficiently if forced to hold onto the slim soldier, perhaps nervous at the heights at which the work must be done. On this night, according to Bridges, he, Micheli, and Pat Curtis, the apprentice, were tying the aforementioned wall form,, with Bridges working as the feeder, Micehli as the opposite outside man, and Curtis working inside the form. Bridges testified further that he spoke just once to Jim Easter during work that night, that Easter simply asked if he was encountering any problems, and that Bridges answered that he was not. In this regard, however, Bridges later admitted that although he had worked at heights previously, he had done so standing on a scaffolding and had never worked solely supported by a safety belt. Further, Bridges admit- ted that Micheli and Curtis accused him of working too slowly that night; however, he insisted that if any delays occurred, such were caused by the crews' laborer who was slow in passing up materials to him.59 Notwithstand- ing this, Bridges also insisted that he was working as fast as someone with experience in that type of work. Contrary to Bridges, Easter testified to a far different version of the events of that night. Contradicting the former, Easter stated that he assigned Micheli to be the feeder, that Bridges was designated as the other outside man, and that the, latter's work consisted only of the placing of cat-heads over the doaker rod ends that pro- truded from his side of the wall form.6 ° Further, accord- ing to_ Easter, early on it became rather obvious to him that Bridges was extremely nervous working at heights while supported solely by his safety belt. Thus, Easter observed Bridges constantly trying to work while hold- ing onto the slim soldiers, the protruding 4 by 4 blocks 59 Bridges testified that the slow work of the laborer caused both Curtis and Micheli to yell to him from time to time, "Come on, let's go." However, according to, Bridges, neither of them could observe how the laborer was working; therefore, all they could know was that there was some slowness, with someone at fault. 60 Easter testified in a contradictory manner as to why Bridges was assigned to work as the "other" outside man, this night . Initially, Easter averred that he had no idea of Bridges' capabilities and that he assigned Bridges to that position as "somebody had to do it and nobody was on the ground ... I figured he'd be all right to do it." Later, Easter testi- fied that he formed the opinion from observing Bridges' work the previ- ous day that other workers were more capable. Also, Bridges allegedly told him that "he had never been around like [Respondent's]" before Ac- cordingly, he did not give Bridges the feeder job because "I figured I had three of four . . . people a little bit more capable than he was " Bridges specifically demed informing Easter that he had never worked on such a job as the crusher job that night. of wood. This, in turn, caused Bridges to be unable to catch the metal cat-heads that were being passed up to him by the laborer. The resulting work delays necessitat- ed Easter to speak to Bridges twice: "I told him to loose of that slim soldier with his arms and hands, and lean back on the belt, and ... catch the material the laborer was passing up to him." Bridges replied each time that he would try. Besides the -latter's perceived nervousness working off the safety belt, Easter stated that he ob- served Bridges having difficulty with the hand signals necessary for signaling the crane operator, during the "flying" of the wall form panels. Accordingly, because he allegedly believed that Bridges' nervousness at heights could possibly endanger the other crewmembers, Easter further testified that he decided to speak to Bridges during the crews' break,period in the job shack. "I asked Bridges if he would transfer back to the day shift and work on the ground . . . because he was too nervous and he was a threat to my people- below him."61 Bridges said no as "he would feel like a pussy if he took a trans- fer . . . . He wanted, to tough it out." Easter next of- fered Bridges the inside man job; Bridges also refused this job, saying "he wanted to tough it out and be a man ...." Nothing more was said. Finally, as to the content of Bridges' testimony, Easter denied both that the labor- er caused any delays that night and that Bridges men- tioned this to him. Called as a rebuttal witness, Bridges, for his part, denied the occurrence and the substance of the alleged break period conversation between Easter and himself, and he also denied any conversations with Easter regarding signals for the flying of panels or prob- lems in that regard. In any event, the night crews' shift ended at 11:30 that night, and everyone returned to the dry camp. Bridges testified that he wandered over to Micheli's trailer and that while standing outside, he heard several people speaking about him. In particular, Micheli opined that Bridges was just too slow, and the apprentice, Pat Curtis, said that if Bridges could not do the work, he should let someone else do it and leave. At that point, according to Bridges, he entered the trailer, saying that if there was talk about the crew, it should be in the pres- ence of all of them in the open. Easter then said that the discussion was closed and that he had made a decision that because Curtis had more experience working outside off a safety belt, he was going to put Bridges inside for 2 or 3 weeks until he was familiar with the work. Bridges responded that he could do the job and that he thought he had done a good job that night. Easter agreed but said he would still put Bridges inside so that-he could fa- miliarize himself with the work. Bridges specifically denied refusing this change in work duties, and stated 61 During cross-examination, Easter altered his testimony regarding Bridges transferring to the day shift: "I believe I told him I'd help him transfer because he was good on the ground." He was also able to -recall telling Bridges that "he was too scared to work above, and he was dan- gerous. Unless he'd get shaped up, he couldn't handle the job and I wanted him out of there." BUCK BROWN CONTRACTING CO. 511 that the meeting ended with Easter saying Aiton III was happy with the crews' work that night.62 Bridges next testified that as the crewmembers report- ed to the jobsite for work on the afternoon of May 14, it began to rain. Observing the weather Easter informed the crew that- he and Aiton III were going to check on the condition of the work area. While awaiting their return, Bridges noticed Robert Kelly speaking to another carpenter in the vicinity of the office trailer.63 Kelly came over to Bridges and informed him of his termina- tion. After a few minutes, Easter returned and walked over to where Kelly and Bridges were standing. Bridges introduced Easter to Kelly and inquired whether Kelly could be hired for the night crew. Easter asked why, and Bridges responded that Kelly had just been laid off and Bridges thought Easter could utilize Kelly on his crew. Easter replied that he would get back to Bridges after telling the others that there would be no working that day. Ten minutes later Easter returned and said to KellY, "I can't do nothing for you, son.... I'm sorry, but I've got a new crew here and I don't want any problems." Thereupon, according to Bridges, he (Bridges) asked what if he spoke to 'Lively. Easter -replied,-"I wouldn't advise going over my head." Kelly, during his testimony, recalled this conversation, stating that after he ap- proached Bridges that afternoon and informed him of the discharge, the latter introduced him to Easter. Bridges said to Easter, that Kelly was a good carpenter and that although he had been let go, he could work on another crew. :'Easter replied that he would return after informing the rest of the crew that-they would not be working that afternoon. He soon returned and said to Kelly, "Well, sorry Bob. I'm a new foreman and T don't want to get involved." Bridges thereupon said that Kelly should speak to Lively; Easter became upset, asking whether Bridges was trying to go over his head. Bridges said no, and, Kelly recalled, the conversation ended.64 82 Mentioning nothing during direct examination, Easter was able to recall, during cross-examination , that on returning to the dry camp that night, the entire crew met in Michell's trailer, drinking coffee or beer, and that, Bridges walked in 5 minutes after the conversation began. Ac- cording to Easter, the entire crew was in the process of complaining about Bridges' job performance when the latter entered and said that he did not like people talking behind his back . After various crewmembers insisted that Bridges transfer to days, Easter renewed his offer to Bridges to work inside the form. Bridges said "he'd feel like an idiot ... to take a transfer like that. He wanted to tough it out, if he could." No more was said. 63 The record establishes that Kelly had been fired by Don Davis ap- proximately an hour earlier; however, after speaking to Aiton Jr. and Jim Joy, Kelly had been given permission to seek a position on another crew. Thus, Kelly spent the remainder of the afternoon speaking to other fore- men as to whether they could use him on their crews. Aiton Jr. corrobo- rated Kelly as to this granting of permission to seek employment with other foremen. 64 Easter testified regarding this conversation during cross -examina- tion. While informing the crew that no work was to be done on May 14, according to Easter, he was introduced to Kelly by Bridges. Then, Bridges asked Easter to try to fit Kelly onto his crew. Easter replied that he could not use Kelly as the latter had been laid off by another foreman and Easter did not want to intervene and as Easter did not want any problems on his crew. Bridges responded that Easter testified that they 1 were going to "wobble" (strike) the job. Asked what he meant by not wanting any problems, Easter explained, "[Kelly] had been laid by another foreman, and . , . if I hired him on my crew, [such] ... would cause dissension between the other foremen and myself.... . Bridges, who had driven himself to the jobsite that day, returned to the dry camp with Kelly. According to Bridges, he and Kelly had a conversation with Micheli in front of the latter's trailer shortly thereafter. Kelly, who was upset over his termination, announced that "`I'm going to throw a wildcat on this job."' Bridges added that he would not cross the picket line; however, Micheli responded that he would run right over Kelly, because he wanted to keep his job. Micheli, then, left the others and walked toward his trailer. According to Bridges, he had previously noticed that Easter's car was parked out- side Micheli's trailer, and he asked Kelly whether anyone else was in the vehicle. Kelly replied that Easter had entered it awhile ago.65 Later that- afternoon Bridges,learned that Kelly had no'means of returning to 'Las Vegas. Thus, at 6:30 p.m. Bridges went to Easter's trailer and said to the latter that he would The taking Kelly back to Las Vegas and would return in time for work the next day. Easter asked whether Kelly was sup- porting him. Bridges denied it, saying Kelly was a friend and because he did -lot have a car, Bridges would drive him back to Las Vegas. Easter asked, "What, are you queer for the guy or something?" Bridges repeated that Kelly was just a friend, and Easter responded, "Look son . . . . You want to work on my crew, , , . you stay out of other people's business." Bridges protested that he liked working for Easter and that all he was doing was giving Kelly a ride home. Easter said okay but that if Bridges failed to return, Easter would find someone else. Bridges replied that he would be back in time for work the next afternoon and nothing more was said. - Bridges testified that he drove Kelly to Las Vegas and that he returned early enough to report on time for work on' May 15. Shortly after arriving on the jobsite, he was approached by Easter who announced that he had laid Bridges off at 7 a.m. that day. Angered, Bridges said that Easter should have telephoned him in Las Vegas so that he would not have had' to return to Tonopah. Then, Bridges asked why Easter laid him off. Easter replied, "You seem to have a problem." Bridges, asked Easter to explain, and the latter said, "You know ' what I mean .. . . And I don't want no problems on my job." Bridges responded that if the foremen continued to give such "crap" to the carpenters,' there could be a wildcat strike. Easter replied, "To hell with your wildcat strike. Get the hell off my job." Easter said nothing more and did not give Bridges a termination notice. Bridges left Easter and a few moments later encountered Aiton III near the office trailer. During their conversation, which I have previously described, Bridges asked him "`Wasn't my work satisfactory?' He says, `That's 'not the point. I Bridges denied threatening Easter with a wildcat strike prior to his ter- mination 65 Kelly contradicted Bridges in this regard . Thus, the former testified that on returning to the dry camp, he spoke to a group of several carpen- ters, including the entire night crew and Jim Easter, about possibly pick- eting the project Bridges said that he would honor the picket line, but Micheli said that he would run over Kell y. After listening, to all this, Easter walked away just as Kelly and ,Micheli began arguing and went into the trailer of a member of the night crew. Easter failed to deny either version of this incident 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have to back my foremen up. . . . Anyone that creates any problems from now on is going down the road.1"66 The record establishes that regarding the decision to terminate Bridges and the rationale for the action, Re- spondent's evidence is contradictory and utterly confus- ing. As to the former, under questioning by me during redirect examination, Easter stated that at the conclusion of the night crews' shift on May 13, he knew that some- thing had to be done about Bridges but that "I hadn't made up my attitude." Moments later, however, Easter evidently made up his mind, as he testified that the deci- sion to discharge Bridges was made "that first night. . . . But I wanted to talk to my supervisor." Re- minded that on May 13 rather than mentioning possible discharge to Bridges, he spoke only in terms of transfer- ring Bridges to another crew or placing him inside the wall forms and asked again whether the discharge deci- sion was reached that night. Easter altered his testimony, stating, "Not really then. . . . The following day... . Around noon ...." The foregoing must be contrasted with Easter's admission during cross-examination that, notwithstanding Bridges' apparent refusal on the previ- ous night to accept either of-the aforementioned alterna- tives, on May 14, prior to work that night, Easter had no reason to believe that Bridges would not work where he was instructed to work: "I believe he would have tried it, yes." Nevertheless, and more supportive of his later testimony, according to Easter, he spoke to Aiton III, concerning Bridges, while they inspected the night crew's assigned work area that afternoon . "I approached [Aiton III] and told him I thought I was going to have to make some changes in my crew-that I couldn't use Bridges on my crew." According to Easter, Aiton III re- sponded that the former should go ahead and terminate Bridges if that was what Easter wanted to do. Aiton III did not corroborate this conversation. Easter testified during direct examination that, after being informed that it would not work that afternoon (May 14) and on returning to the dry camp , the members of the crew, including Bridges, and Easter met in Bob Micheli's trailer. According to Easter, every other crew- member expressed the hope that he would transfer Bridges because no one wanted to work around him as "they were scared that he would drop something." In front of the other crewmembers , Easter turned to Bridges and said "that I couldn't use him, and he would have to transfer." Bridges responded that "he would go to Las Vegas that evening and come back and think about it. And I asked him, I said, `Well, I can get your check now.' But he proceeded to come to Las Vegas without picking up his check." Thereupon, Easter fur- ther testified, because Bridges refused all alternative jobs offered to him, he went to Jim Joy that evening and "I asked him for Mr. Bridges' check." Later, during his aforementioned questioning by me and redirect examination, Bridges reaffirmed the crew meeting in Micheli's trailer after the crew returned from the jobsite on the afternoon of May 14 but denied any 66 Although he testified extensively at the hearing, Aiton III did not deny this conversation, and I previously credited Bridges as to what was said. conversation with Wendell Bridges as "he was already gone. . . . Bridges wasn't there. He left for - Las Vegas ... at 3:30. As soon as I talked with him at the jobsite." Reminded of his earlier testimony, Easter quickly re- called that Bridges had been present and that he told Bridges to take his final check with him back to Las Vegas so that he would not have to return to Tonopah. Thereupon, Easter contradicted his prior version of the meeting, testifying that Bridges said, "I'll try to -get a transfer when I get back from Las Vegas." As with this latter response, Easter had changed the circumstances, resulting from that meeting, he was asked to explain why, with Bridges now willing to leave his crew, he went to Jim Joy to request Bridges' termination-`Be- cause when he left to go to Las Vegas , he didn't come back till after the job-we'd already been working an hour or two." Informed that this last response did not at all comport with the facts as previously -developed, Easter once again changed his testimony, stating, "He didn't even give me a good response . He said, `I'm going to Las Vegas and I'll see you later."' Concerning the reason for Bridges ' termination, Easter testified that he instructed Jim Joy on the evening of May 14 to place "unsafe" as the reason for the discharge: "He asked me why, and I told him he, was unsafe to my crew." Joy informed Easter that Bridges' final check and a termination notice would be prepared and be ready by 7 a.m. the next day (May 15). Despite these rather ex- plicit instructions, for some reason, Respondent has never seemed to understand the real reason for Bridges' termination. Thus, the next morning when , according to Easter, he went into the office trailer and Office Manag- er Flinchum handed him=a termination notice for Bridges which notice gave as a reason , "drunk on the -job." Easter stated that he immediately returned the notice to Flinchum and asked , him to issue , a new termination notice, reading "for safety reasons . . . ." Contradicting Easter, Flinchum testified -that either Aiton Jr. or Joe Lively instructed him on May 13 to prepare a termina- tion notice for Bridges, reading "too slow, poor work." Accordingly, he prepared a termination notice for Bridges, which was received into the record as Respond- ent's Exhibit 22 and which contains a checkmark next to the notation "Too slow-poor work." Further, Flinchum specifically denied preparing any termination notice for Bridges, stating that the latter , was drinking on the job. In contrast to this testimony, Easter averred,, "I terminat- ed . . . Wendell Bridges because he was . . . not too slow, but unsafe." Finally, and further confusing the exact reason for Bridges' termination, is Respondent's Exhibit 24, a document prepared by Flinchum , and which is a list of all discharged employees and the reasons for such; next to his name the reason for Bridges' termina- tion reads: "Not qualified." Whatever the' reason for his termination, Bridges was terminated by Easter on May 15. The latter testified that Bridges arrived at the jobsite at 5 p.m., 2 hours late, and that he immediately spoke to Bridges, telling the latter that he was being , discharged because he was "unsafe." Bridges "got a little belligerent" and said "that he was BUCK BROWN CONTRACTING CO. going to wobble the job." Easter replied, "Wobble be damned. I could care less."s 7 - 2. Analysis The consolidated amended complaint alleges that Re- spondent terminated Wendell Bridges in violation of Sec- tion 8(a)(1) and (3) of the Act. In support, the General Counsel argues that Bridges engaged in protected con- certed activities during his brief period of employment by Respondent (complaining to Lively about being as- signed to the night crew and about having to work less than a 10-hour shift, attempting to gain the reinstatement of Kelly, and supporting Kelly in a threatened wildcat strike) and that Easter exhibited unlawful animus regard- ing Bridges' aforementioned activities. In contrast, Re- spondent minimizes the extent of whatever protected ac- tivities in which Bridges may have engaged and asserts that Easter exhibited no unlawful animus in -his conduct toward Bridges. Further, counsel for Respondent con- tends that Bridges was terminated for legitimate rea- sons-unsafe work. - Analysis of the record discloses that not only did Bridges engage in protected concerted activities during his brief tenure of employment with Respondent but also that Respondent was well aware of the extent of and nature of Bridges' activities. Initially; although Bridges did not so testify, Easter admitted that on the night of May 12, Bridges informed him that Bridges intended to go over Easter's head and complain directly to Joe Lively about having been assigned to the night crew. In this regard, the record discloses, and it was uncontro- verted, that earlier in the day Bridges had agreed to work the night crew on an experimental basis, that at some point in the evening he was informed by Bob Mi- cheli that the night crew was to work less than a 10-hour shift, that Bridges became angered by this information, and that early the next morning (May 13) he had a heated conversation with Lively on the subject of the night crews' hours of work. Throughout his entire testi- mony, James Easter impressed me as being a contradicto- ry and utterly dishonest witness who did not know the meaning of candor, and, except for inadvertent admis- sions or when corroborated by others, I do not rely on his-testimony. Based on the foregoing, and the record as a whole, I believe that 'Bridges did, indeed, inform Easter, on the night of May 12, that he was going to complain directly to Lively the next day but that the subject matter was going to be the night crews' hours of work-not Bridges' assignment to that crew and that Easter's testimony is nothing more than a "cover-up" of the true nature of that conversation. Although not a matter covered by the Union's collective-bargaining agreement, the matter of the night crews' hours of work was a matter of urgent and common concern to all those on the crew, and when Bridges, who, I previously stated was a candid and forthright witness as to all matters, complained to Joe Lively concerning this issue, he en- gaged in protected concerted activities. Cal-Wafts Inc., X67 I grant the General Counsel's motion to correct the transcript in this regard. ,513 supra; Rose's Stores, supra; Air Surrey Corp., supra.ss Further, although there is no record evidence that Easter was aware that Bridges actually spoke to Lively, the record does warrant the conclusion that on May 12 Easter was aware that Bridges intended to go over Eas- ter's head and do so the next day. Next, all witnesses are in agreement that on May 14 Bridges sought Easter's consent to employ Robert Kelly on the night crew and I credit Bridges that he threatened to take the matter over Easter's head and directly to Lively. Further, by his own admission, Easter refused to employ Robert Kelly, stating that he wanted no "prob- lems" on his crew.69 There can be no doubt that. Bridges engaged in conduct protected by Section 7 of the Act in making this request on Kelly's behalf. Thus, notwith- standing that the latter had just been terminated by Re- spondent, such termination was, I have previously con- cluded, unlawful, and Kelly, therefore, remained as an employee of Respondent. Even if not unlawfully dis- charged, Kelly must be viewed as a potential employee inasmuch as, with management's admitted assent, Kelly was diligently engaged in seeking employment on car- penter crews, supervised by all foremen, other than Don Davis. In this context, Bridges' request that Easter employ Kelly on his crew is directly analogous to an employee's protest to a supervisor regarding the discharge of a fellow employee-conduct that the Board and courts consider as within the protection of Section 7 of the Act. NLRB v. John S. Swift Co., 277 F.2d 641, 645-646 (7th Cir. 1960); Auto-Truck Federal Credit Union, 232 NLRB 1024, 1028 (1977). Further, the definition of "employee," within the meaning of Section 2(3) of the Act, has tradi- tionally been viewed as broad enough to encompass po- tential employees. Phelps Dodge Corp. v. 1VLRB, 313 U.S. 177 (1941); , Pioneer Printers, 201 NLRB 900 (1973). Therefore, Bridges' request, on behalf of Kelly, was pro- tected and concerted in nature. Finally, as to this May 14 conversation, although denied by Bridges, and of import in characterizing the latter's conduct, is Easter's admis- sion, which I credit, that Bridges threatened that "they" were going to strike the project-the comment coming immediately after Easter refused to hire Kelly on his crew. It is gainsaid that a strike, or concerted work stop- page, in protest of the discharge of a fellow employee constitutes protected concerted activity. Go-Lightly Foot- wear, Inc., 251 NLRB 42 (1980); Diagnostic Center Hospi- tal Corp. of Texas, 228 NLRB 1215 (1971). In agreement with ' the General Counsel, taking into account its con- text, the conclusion is warranted that Easter could only have taken ' Bridges' threat as a protest' of Kelly's dis- charge or, at least, as a statement of support for such a 68 I do not believe that Bridges engaged in protected concerted activi- ties when he complained to Lively on the afternoon of May 12 about his assignment to the night crew. Such appears to have been , by Bridges' own admission, a personal complaint about a matter of concern only to himself I agree with Respondent in this regard. Inked Ribbon Corp., 241 NLRB 7, 12 (1979). 69 1 place no particular significance on the the reason for Easter's re- fusal except to, the extent such reflects on his overall attitude towards Bridges. 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD protest-conduct protected by Section 7 of the Act. AMP, Incorporated, 218 NLRB 33, 36 (1975).70 Having established that Bridges engaged in protected concerted activities, however limited, and that Respond- ent, through Bridges, was aware of, or suspected, such conduct, I believe that the record establishes, and the General Counsel has proved, that Jim Easter, a newly appointed foreman and admittedly afraid of "problems" caused by his crew, harbored animus toward Bridges be- cause the latter apparently went over his head and com- plained directly to Lively about the crews' hours and he supported Robert Kelly, who had recently been termi- nated by another foreman, and that Easter's termination of Bridges resulted from same. As to this, I initially note the ample-and well documented-evidence of Respond- ent's unlawful animus toward ' all union members, particu- larly those who protested perceived problems with their terms and conditions of employment. Specifically as to Bridges, as between himself and Easter, I credit the testi- mony of Bridges regarding the late afternoon or early evening conversation` of May 14 (during which Bridges informed Easter that he was leaving in order to drive Kelly back to Las Vegas), and the discharge conversation of May 15. Further, I view Bridges' uncontroverted con- versation with Aiton III, immediately after his discharge, as revealing the exact nature of Respondent's unlawful animus toward him. Thus, during, their- early evening, May 14 conversation, Easter accused Bridges of being "queer" for Kelly and warned him that in order to remain on his crew, Bridges should "stay out of other people's business." Clearly, this was nothing less than a thinly veiled threat of discharge if Bridges continued to support Kelly-conduct protected by Section 7 of the Act. Next, during their discharge conversation on May 15, - Easter asserted that Bridges had a "problem" and that he wanted "no problems" on his crew. That Easter, who averred that he wanted to avoid conflicts with other supervisors, quite obviously was again referring to Bridges' protected concerted activities and not to the tat- ter's job performance is clear from the subsequent com- ments of Aiton III, regarding the fact that Bridges' work was not an issue or cause of his discharge: "That's not the point . . . . Anyone that creates any problems from now on ' is ' going , down the road." (Emphasis added.) There can be only one inference drawn from, the afore- mentioned-that- Bridges' problem was having engaged in protected concerted activity and that he was terminat- ed for having so participated. Turning-next to whether Respondent has established that Bridges would have been terminated notwithstand- ing having engaged in conduct protected by Section 7 of the Act, I note that Respondent's defense rests solely on the testimony, of Jim Easter and conclude, based on my belief that his demeanor was that of an untruthful wit- ness, that this defense is nothing more than a sham and pretextual in nature. In this regard, I credit the testimony 70 I place no reliance on the alleged strike comments by Bridges, in support of Kelly, back at the dry camp on May 14. I do not do so par- ticularly because it cannot be definitely established that Easter was present to hear, or even became aware of, anything said by Bridges. Thus, I note the contradictory testimony of-Bridges and Kelly and do not believe that any conclusions may be drawn therefrom. of Bridges regarding his work and the events of the night of May 13, his only work on the night crew. Thus, I believe that Bridges, Micheli, and Curtis performed that work of tying a wall form for an inside wall of the crusher building; that Bridges was assigned to, and worked, the feeder position; that although inexperienced at such work while supported only by means of a safety belt, Bridges did not cause any `unnecessary delays in the rate of work that night; and that although Micheli and Curtis may have believed work- was progressing more slowly than normal, such was the fault of the 'crews' la- borer, a fact about which Micheli and Curtis were un- aware. Notwithstanding Bridges' testimony, Easter insist- ed that his decision to terminate the former was based solely on his observation that Bridges was an "unsafe" worker. However, despite Easter's consistent testimony, the record, as a whole, is utterly contradictory on this point. Although Easter maintained that he informed both James Joy and Robert, Flinchum, the office manager, that "unsafe" was the reason for Bridges' discharge, such did, and does, not appear on any of Respondent's docu- mentation of the termination. Rather, two termination notices were prepared for Bridges; the first asserted that Bridges had been, drinking on the job and the second listed as the discharge reason: "too slow-poor work." Further, in a document that was prepared expressly for the hearing, Bridges is listed as having been discharged for being "not qualified." Moreover, Flinchum's testimo- ny directly contradicted that of Easter. Thus, although the latter says he specifically instructed Joy to list unsafe as to the discharge reason, Flinchum stated that either Joy or Aiton Jr. instructed him to list "too slow-poor work" as the rationale. Also, despite Easter's testimony to the contrary, Flinchum specifically denied ever pre- paring a termination notice for Bridges,, which, notice listed drinking while working as the reason. Besides the aforementioned problems with the ration- ale for Bridges', termination, Easter's testimony concern- ing his decision-making process was contradictory, con- fusing, and uncorroborated. Thus, not only did Easter contradict himself as to when he decided that Bridges must be terminated (was that decision reached on the night of May 13, at 12 noon on May 14, or at approxi- mately 6 p.m. on May 14) but also he was contradictory as to what Bridges supposedly -said at the alleged crew meeting on May 14, which comment, according to Easter, precipitated,his request to Joy for Bridges'.termi- nation (of course, at one point Easter denied the former's presence at the meeting). Also Easter, contradicted him- self as to exactly why he went to Joy,on May, 14 with the aforementioned request, at one point testifying that his rationale was that Bridges' absence left him a worker short, on his crew-a -reason that would place the dis- charge decision subsequent to 3p.m. on May 15. Fur- ther, I credit Bridges' testimony, that he never refused Easter's offer, after work on May 13, to move him inside the wall forms during the tying process, noting that Eas- te{'s admission, that prior to work on May 14, he be- lieved Bridges would accept whatever work was as- signed to him, corroborates Bridges as to that point. Bearing in mind the admission, I fail to understand Eas- BUCK BROWN CONTRACTING CO. ter's assertion that he was forced to seek Bridges' termi- nation because the latter refused to accept any job alter- natives that Easter offered. Finally, although Easter as- serted that he discussed the termination of Bridges with Aiton III prior to learning of Bridges' support for Kelly, Aiton III, despite extensive testimony, failed to corrobo- rate Easter on this point, `permitting the inference that he would not have corroborated Easter. Accordingly, inasmuch as Respondent's defense ap- pears to be a sham and pretextual, the inference is per- missible, indeed, warranted that the true motive for the termination of Wendell Bridges is one that Respondent sought to conceal-his protected concerted activities. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); J. P. Stevens & Co.., 247 NLRB 420 (1980). In these circumstances, I' conclude that the termi- nation of Bridges was violative of Section 8(a)(1) of the Act.71 E. The Discharges of David M. Doran and John,R. Angle 1. The facts David Doran, who is a carpenter by trade and a member of the Union, was among the initial group of carpenters hired by Respondent for work at the mine project in Tonopah-starting to work about April 1. Ini- tially, Doran was assigned to work in the yard area where he constructed wall forms under the direct super- vision of Joe Lively. While under the latter's supervision, Doran and another carpenter, Don Jackson, continually complained about Lively's propensity to perform carpen- ter work despite a contractual prohibition against such. These complaints culminated in Lively threatening to terminate both Doran and Jackson if they continued to complain in that regard.72 At 'some point in April, Jack- son was promoted to a foreman position, and Doran was assigned to his crew. After Jackson resigned his position in early May, Doran was assigned to work on the car- penter crew at the reclaim tunnels, under the supervision of Bruce Alford. According to Doran, the reclaim tun- nels crew consisted of himself, John Angle, Mitchel Getz, Bob Steadman, and John Steadman. The record establishes that Aiton III was appointed to the position, of superintendent, in overall charge of the reclaim tunnels area, on approximately May 1, Accord- ing to Doran, from the day of his own assignment to Al- 'ford's crew until his termination on May 30, he observed Aiton III, in violation of the Union's collective-bargain- ing agreement, giving work orders directly to carpenters on eight or nine different occasions. Doran further testi- fied that he complained to Mike Herndon regarding the conduct of Aiton III "a couple of times." Unable to recall specifically who, Herndon testified that "the 71 Although he clearly engaged in protected concerted activities and was discharged for same, 'there is no evidence that Bridges engaged in union activities., Accordingly, I shall dismiss that portion of the consoli- dated amended complaint, alleging that Respondent violated Sec 8(a)(3) of the Act by that conduct. . 72 The exact wording of Lively's threat to Doran and Jackson and the 'surrounding circumstances were more fully set forth and analyzed earlier in the instant decision 515 whole crew down at the reclaim area" on various occa- sions complained about direct supervision by Aiton III. Thereafter, without identifying the source of the com- plaints, Herndon had two separate conversations with Aiton III regarding that subject. During one conversa- tion, according to Herndon, Aiton III asked why he could not directly supervise the carpenters at the reclaim tunnels ' as by doing so, he would avoid wasting time searching for Bruce Alford. Although not disputing this logic, Herndon explained that Aiton III was wrong, that the chain of command, as set forth in the contract, would be broken, and that the crewmembers worked for their foremen. Notwithstanding Herndon's admonition, the record discloses that on May 28, Aiton III assumed supervision of the reclaim tunnels crew from Alford and directed its work for the entire day. According to Aiton III, after having observed the work of that crew for a 2-week period, he believed that its production was not at an ac- ceptable level; however, he was, not sure ,whether this production failure was the fault of the crew or of the foreman. Accordingly, "I then spent one full day actual- ly supervising the crew on my own and giving them orders." Concluding that the carpenters on the crew were working "in a very efficient manner," he decided that Alford was at fault and that he should be replaced. That he acted in violation of the Union"s collective-bar- gaining agreement does not appear to have been a con- cern to Aiton III. . In any event, according to Doran, he reported for work on May 29 at 6 p.m. at which time Alton III "gave a little speech before we went to work. He apologized. He said, 'Guys, I'm sorry I had to take over for the day, but I had to find out who was screwing up, you or your boss."' After commending the crew on doing, a good job, Aiton III announced that a new foreman would be trans- ferred to the reclaim tunnels area. As the short meeting concluded, Doran testified, "I confronted him and told him that there was no excuse for breaking our union rules, because our union's weak enough the way it is. And he just stormed off." John Angle, who is a member of the Union and had been working on the Tonopah job- site since May 1 (at all times on the reclaim tunnels crew), 7 a testified that on the day after he supervised the 72 Angle testified that on the morning of May 21, Aiton III asked for volunteers from the reclaim tunnels crew to help in an emergency situa- tion at the crusher building work area at which, with a concrete pour scheduled to occur that day, problems arose with the wall forms. Aiton III told the employees that "if we would come with him right then, he would pay us for our break." Angle, who believed that the union con- tract requires payment whenever members are forced to work through the normal break period, Getz and John Steadman volunteered to help, and the record discloses that they worked without morning or lunch breaks, bracing a wall form while the 'concrete pour progressed. After completing their work and taking lunch breaks, Angle and the others re- turned to the reclaim tunnels area where, in the presence of the entire crew, according to Angle, he complained about the conditions under which the three employees worked and demanded extra wages for work- ing through the morning and lunch breaks. Bruce Alford replied that he would check with management. Angle further testified that he spoke to Alford that night in the dry camp and on, at least, three or four other occasions regarding his demand for payment for the missed morning and lunch breaks on May 21 . He fur- Continued 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD crew, Aiton III spoke to the carpenters prior to work and apologized for what he did the day before. Aiton III said there been trouble at the reclaim tunnels;, that, at first, he believed the problem was the fault of the crew; but that now he realized that the problem resulted from Alford being a "poor" foreman. After instructing the men to commence working, Aiton III was approached by Doran, who said that the crew was not supposed to take orders, from Aiton III because he was a superintend- ent. That latter replied "that he would get a foreman." According to Angle, Aiton III "wasn't happy" inasmuch as he abruptly broke off the conversation and walked away. Recalling that he spoke to each crewmember indi- vidually rather than to the reclaim tunnels crew as a whole, Aiton III testified that he explained to each car- penter what the, problem was and what he intended to do as a solution. According to Aiton III, he so spoke to Doran, and the latter replied, "I don't feel you have any business running the crew." He responded "that I had to do 'it to make sure that the crew itself was not at fault." Aiton III further testified that Doran indicated his agree- ment, and Aiton III walked away. The record further discloses that John P. Hendershot Jr. assumed the role of foreman over ' the reclaim tunnels carpenter crew that day at approximately noontime. The record reveals that on the next day (May 30) Doran and Angle , were assigned to "pour watch" duty and that such required them to work through the normal lunch hour. The concrete pour was not completed until approximately 12:45 p.m., at which time both employees took their lunch breaks, eating together in back of the re- claim tunnels job shack.74 Doran testified that for lunch, he ate a hamburger and drank A & W root beer from a can but that he did not observe whatever Angle ate or drank. According to Doran, 10 or 15 minutes into the break period,, Aiton III approached and asked what they were doing. Doran replied that they were eating lunch as their pour watch had been completed. Aiton III asked where they were supposed to go after lunch, and after both men responded that they did not know; the superin- tendent replied that he would send Hendershot over with instructions.75 Aiton III then left where Doran and Angie were eating, and 10 minutes later, Hendershot came over to' them and ordered them to help construct a scaffolding, which was necessary for work on a footing of the radial arm stacker. Regarding the lunch break that day, Doran denied drinking any sort of alcoholic bever- age. Regarding what he consumed for lunch, John Angle testified, that he ate - a. hamburger and drank Gatorade from a can, which was enclosed in a styrofoam cooler. ther characterized Alford as not only never appearing upset at Angle's complaints but also as agreeing with the validity of Angle's demand. Fi- nally, approximately 5 days prior to Angle's termination on May 30, Alford informed Angle that Acton III had decided that "we would get paid for the lunch but we wouldn't get paid extra for the break." As far as can be determined from the record , the incident was closed. 74 The record establishes that this job shack is located between the two reclaim tunnels and that it was regularly used by the members of the crew for their luncheon breaks. Neither Doran nor Angle explained why each chose to eat lunch behind rather than inside the job shack this day. 75 Doran stated that while Aiton III spoke to them , both had their luncheon food and drinks on the ground between them and that Aiton III said nothing about alcoholic beverages Angle stated that although he noticed that Doran also ate a hamburger, he -had no idea what beverage Doran drank. According, to Angle, Hendershot was the first su- pervisor to come over to them. He -told Doran and Angle to help construct the scaffolding at the radial arm stacker after they finished eating lunch, saying-nothing about Doran and Angle drinking beer or any other alco- holic beverage. Hendershot left them, and, Angle further testified, 15 minutes later, Aiton III walked over to where the two employees were seated. Angle continued, testifying that Aiton III spoke directly to Doran, that Angle could not hear what was said because of the loud equipment noise, and that by the time of this conversa- tion, he and Doran had finished eating- and returned all the luncheon materials to their respective lunchboxes. Like Doran, Angle specifically denied drinking any alco- holic beverage with his lunch. Both Doran and Angle testified that after lunch and pursuant to Hendershot's instructions, they helped work on the wood scaffolding at the radial arm stacker.76 Ac- cording to Doran, no more than 15 minutes after finish- ing lunch and while both he and Angle were working high on it, Aiton III drove up to the base of the struc- ture in a pickup truck and yelled up to them, "Guys, I'm going to have to let you go." After instructing the two employees to go back to the office and to pick up their final checks, Doran- asked Aiton III why he was dis- charging them. The superintendent replied "Drinking on the job," and he said that supervisory witnesses who were on the hill saw them drinking. Thereupon, Aiton III drove off in the pickup truck. Doran further testified that he did not deny this accusation,- averring, first, that he had not time to do so as Aiton III drove off so quick- ly and, later, because "I figured it wouldn't-do any good anyway." Doran added that he left the jobsite at ap- proximately 1:30 -p.m., after Jim :Joy gave, him his final check. As with the lunch events, John Angle's recollec- tion of the scaffolding incident contradicts that of Doran. Thus, Angle testified that 15 minutes after- lunch and while he and Doran were working on the scaffolding, Aiton III drove up to the work i area in a pickup truck and motioned to Doran and Angle to come over to him. They did so, and "[Aiton III] was upset. He just got out of the truck and said `We are going to have to let you go; get your tools."' He then told the two employees to get into the truck; they did so and were taken to the office trailer, where Angle received his final check. Ac- cording to Angle, while angry; Doran said-nothing when 76 The record establishes that in May 1980 the radial arm stacker, which rests on a series of concrete footings, was located on a hill, 10 to 15 feet above the reclaim , tunnels job shack and facing--the rear of the building. David Doran testified that the particular footing, atwhich the crew was constructing the scaffolding, was located 50 feet from the back of the job shack. Dennis Jensen, the foremen who was supervising the construction of the scaffolding, testified that the footing was located in the middle of the radial arm stacker, was , directly above the job shack, and was 50 to ¢0 feet from 'the building. Aiton III corroborated Jensen as to the placement of the footing, estimating that such was 80 feet from the job shack. The foregoing must be contrasted with the testimony of car- penter employee Mitchell Getz who stated ',that the footmg,.on which the crew was working on May 30, was the, second or third from the end (to the left of center as-one faced the job shack) and was, 50 yards from the back of the job shack. BUCK BROWN CONTRACTING CO. 517 Aiton III terminated them, and he did not learn the reason for their terminations until told by Doran, while driving back to the dry camp, that they had been ob- served drinking on the job.7 7 Respondent's defense, and justification for the termina- tion' of Doran and Angle,' is that both- were observed drinking beer with their lunch on May 30, and, as such is directly prohibited by Respondent, the two employees were immediately terminated.78 Dennis Jensen, the fore- man over work on the radial arm stacker at that time, testified that on May 29, he ate his lunch in the reclaim tunnels job shack and that present and also eating lunch were Doran, Angle, Mitchell Getz, Bob and John,Stead- man, and John Hendershot. He further testified that both Doran and Angle were drinking beer with their respec- tive lunches, that Doran was drinking Coors light beer (the "Silver Bullet"); and that Angle drank Pabst Blue Ribbon beer. According to Jensen, neither he nor Hen- dershot commented on what he observed.' However, Hendershot, who is a member 'of the Union, had worked on the jobsite since early May and had just been appoint- ed a foreman that day by Aiton III, and who admittedly did not think beer with lunch was particularly harmful, testified that not, only did he observe Doran and Angle drinking beer during the lunch, but also he said right then to both, "Look don't do it in front of me. I just got up here. It's company policy, you know. Any other time ... you're going to -be sent down the road."79 As to 71 Admitting that he received a termination notice, Angle testified that he was not interested in its contents as he was such a great distance from Las Vegas. 78 The record disclosed that on being hired each individual, employed by Respondent at the Tonopah Mine project, was given by Respondent a sheet of paper that set forth various work-related and safety information and that required the employee's signature at the bottom . Regarding-the consumption of alcoholic beverages, the document states: "A WORD OF WARNING--A man must be completely sober to STAY ALIVE around construction equipment. We will not tolerate drinking on the jobsite; don't plan to sober up at work. We will not risk the lives of our men on the retarded reflexes of the man who has `had a couple."' Both Doran and Angle admitted knowledge of this rule. In this regard, Doran identi- fied R. Exh. 14, which is a copy of the aforementioned document and which bears his signature. Angle was shown a similar document, which beams' what was alleged as his signature but, he testified, was his name but not his signature. Comparison of this alleged signature with a sample of Angle's handwriting by me disclosed that the writing of Angle's name on Respondent's document was not done by Angle. 79 During cross-examination, John Angle testified to a similar conver- sation but under entirely different circumstances. According to Angle, Hendershot was introduced as the new foreman to the entire crew after lunch on May 29 and that later in the afternoon, Angle was standing next to Mitchell Getz in the reclaim tunnels area while the latter had a con- versation with Hendershot. "[Hendershot] said he . likes to drink a beer at lunch and he didn't see anything wrong with it, but we shouldn't; make it publicized or get caught with it." Hendershot also said that "he didn't want to lose his position by somebody seeing us drink." Under fur- ther questioning, Angle changed his version of Hendershot's warning to, "If you are going to drink beer, keep out of sight" and, finally, to, "He said he didn't want anybody seeing us drinking beer during lunch; it might hinder his job." Mitchell Getz, a carpenter by trade and a member of the Union, who had been employed by Respondent since May 1, testi- fied to a third version of this conversation. According to Getz, early in the morning on the day he assumed the position of foreman, while the crewmembers were preparing for work, Hendershot spoke , on a variety of subjects, among them .drinking on the job. He said "that there was a company policy that there should be no drinking on the job; that he didn't mind, personally; and so that, if we were going to, we would have to be very discreet and police the area-get rid of the empties ...." whether either employee consumed beer with his lunch that day, Angle admitted eating his lunch in the job shack, stated that he ate a hamburger and drank a 7-Up, but had "no idea" who else was in the shack, what Doran drank with his lunch, or whether anyone had beer with his lunch that day. Doran could not recall whether he -drank beer with his lunch and did not know what, if anything, Angle consumed during lunch,80 In any event, Jensen testified that immediately after lunch he pulled Hendershot aside "and told him that I knew that we were working for; and if they would not only fire them, they -would also fire us for letting them drink .... [Hendershot] said he would take care of it.", According to Hendershot, Jensen did, indeed, speak to him after lunch regarding beer drinking-"He said this was part of the problem that had been going on." What- ever, .having just been appointed as the reclaim tunnels crew foreman and cognizant of work-related problems in that area,81 Hendershot attempted to solve the perceived problem of beer drinking on that crew by speaking to' 'Mike Herndon later that afternoon. "And I told him, `Go up and say something to them. If they're going to do it, at least have sense to 'hide it because we've got a compa- ny policy; and the instant they're caught, they're going to be fired. 82 That evening, Hendershot' also reported the beer drinking incident to Aiton III[. Although not identifying the employees involved; Hendershot told Aiton III "just that the conversation happened, an inci- dent had happened, and what transpired of it." He con- cluded, "And if its [sic] caught again, that's all there is to it, then they're fired." Aitori III replied, "`Well, O.K., that's fair .... you know next time, its you or them."' Aiton III corroborated the occurrence 01F such a conver- sation,- placing it late in the afternoon of May 29 and stating that Hendershot accused, the entire crew of drink- ing beer during lunch that day. According to Aiton III, Hendershot informed him that Hendershot warned the crew not to be caught drinking again; Aiton IIl[ replied that in those circumstances, he Would not become in- volved. Notwithstanding his pledge, Aiton III testified. that on May 30 at the exact time Doran and Angle were eating their lunch behind the reclaim tunnels job shack, he' was standing at the radial arm stacker footing, on which 80 Another alleged luncheon participant, Mitchell Getz , who "exhibit- ed" a detailed memory as to other incidents, testified, "I've forgotten Isic] what I was doing on May 29." 81 According to Hendershot, at the time Alton III promoted him, the former told him that "the job just wasn't going right , and he needed pro- duction ... . 82 'Herndon corroborated Hendershot, testifying that one day at the end of May, the latter came to him and explained that he had just been appointed as the foreman at the reclaim tunnels and that some members of his crew had been drinking beer during lunch . Hendershot then asked Herndon to speak to the crewmembers and tell them that such was against the company's rules and that they should not do it. Herndon fur- ther testified that the next day, he went over to the reclaim tunnels area and spoke to the two employees who were on pour watch duty "I just explained to them that the foreman had notified me that some of the men were drinking, audit was illegal, and we'd signed a paper . . that we wouldn't drink on the job, and that they could be fired , if they were caught" .Herndon identified the two carpenters as Dave Doran and' Bob Steadman and said that be could not recall speaking to John Angle. Doran and Angle specifically denied speaking to Herndon on May 30. 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dennis Jensen's crew was working.83 Jensen approached and asked whether Aiton III was aware of what was happening behind the job shack. The latter, who had been observing the work, "turned toward the job shack and saw Doran and Angle, sitting with their backs up against the shack and drinking beer.84 After Jensen sug- gested that if he wanted a better look, he should go down to the job' shack, Aiton III walked down the hill to the left of the job shack, through the reclaim tunnels, and around the front of the job shack, and came up to where Doran and Angle were seated from behind them.85 According to Aiton III, as he came around the side of the building, both, employees were holding beer cans in their right hands; then, as each noticed Aiton III, he placed the can behind his legs.86 Also, both Doran 88 The exact positions of Aiton III and Jensen are crucial to Respond- ent's defense. Thus, Angle testified that while he and Doran ate,lunch, the remainder of the crew was, at least, 300 yards away and the closest persons to them were some surveyors, who were standing 75 yards away. Also, Hendershot testified that at approximately the same time that Doran and Angle were eating lunch, he observed Aiton III with "a whole bunch of company officials . . . . up on top of the hill there, look- ing over the project out in our area." Hendershot stated that the group of officials had just completed an inspection of the concrete pour at the radial arm stacker and were "just standing there looking the site over." Hendershot further testified that the footings of this structure were at the bottom of this hill and that the job shack was at essentially the same level as that of the radial arm stacker footings. Also, he testified that he was on the hill but the others were higher up than he; that there was an unob- structed view of the job shack from this hill; and that inasmuch as he was working at the time, Hendershot did not spend any significant amount of time observing the company officials, Finally, Hendershot could not recall seeing either Jensen or Aiton III at the footing of the radial arm stacker. Mitchell Getz also testified regarding the positions of Jensen and Alton III while Doran-and Angle ate lunch on May 30. According to Getz, he was working up on the scaffolding at the footings of the radial arm stack- er and that he observed Doran and Angle eating lunch behing the job shack. At this time, Getz further testified, Alton III was "on the hill be- tween the stacker and the crusher." As to whether be observed Aiton III at the base of the footings, Getz averred that "I don't remember" and that "I did not see it" He was more specific as to Jensen , asserting that the latter was not, at that time, directing work at the footing and that Getz did not even see Jensen at that location while Doran and Angle ate lunch. 84 Asked how he knew what Doran and Angle were drinking from a distance away, Aiton III responded, "We could see the cans." When questioned further by me, Aiton III identified the beer brand that Doran was drinking 'as Coors Regular Asked how he could be so sure, Aiton III averred that -the brand of beer is contained in a distinctive yellow can. As to Angle, Aiton III admitted, "I never did see Angle clearly." es Asked on cross-examination why he chose to have a closer look at what Doran and Angle were doing, Alton III said, "Basically to actually catch them, say, red-handed," and "I needed to make sure, yes, before I discharged them." Pressed as to why it was necessary to catch Doran and Angle "red-handed," Aiton III responded, "For basically what we're going through now. It's not a matter of whether Mr. Joy believed me. It's other persons that might get involved ." Asked the same question again, he answered, "Because I'm not in the habit of viewing something from a distance, not letting the individuals in question know anything and just show up with their checks .. .. I obviously had to make it apparent to them ... let them know I caught them." Finally, Aiton in denied that it was his desire to catch Doran and Angle red-handed. 88 Aiton III testified that prior to both Doran and" Angle hiding the cans behind their legs, he confirmed, in his mind, that Doran was drink- ing from a Coors Regular beer can, recognizing "its color" and "the gen- eral configurations" on the label. However, as to Angle, Aiton III no- ticed only that he was holding a "blue can," at the hearing admitting that he did not know it was a beer can but that he just assumed the can was, in fact, a beer can as "the . . can I saw in his hand resembled a Pabst can " Further, Aiton Hl denied that Angle's can was within a styrofoam container. Later, during cross-examination, Aiton III became more posi- and Angle` were sitting, with Doran closest to Aiton III and Angle no more than 6 feet away. Confronting the two men, Aiton III further testified, "I said, `Gentlemen, we can't go for this drinking .... I know you've been warned yesterday by .. Hendershot, and - we can't go for it' ... Doran replied, `Yeah, we were warned about drinking in the job shack, so we figured we'd get Out back here where we couldn't get caught 1$187 Denying that he instructed the two employees to start working at the radial arm stacker and testifying that he assumed Doran and Angle would- follow him, Aiton III -turned and walked away, Respondent's other_ alleged eyewitness to this incident, Dennis Jensen, testified that while he was directing work that day at the footing of the radial arm stacker,88 he no- ticed that both Doran and Angle were sitting at the back of the job shack and that each was drinking a can of beer.89 At that point, Aiton III approached him and, pointing to where Doran and Angle were sitting, said they would work with .him the remainder of the day. While Aiton III looked toward the two employees, he asked "if they were doing what he thought they were doing." Jensen replied, "It looks like it." Thereupon, ac- cording to Jensen; Aiton III, on his own initiative, said that he was going to go down to the job shack and come up behind Doran and Angle. Jensen further ,testified that Aiton III then walked down the hill and- around the job shack and came , on Doran and Angle from behind and that Aiton III had a conversation with them. Next, Jensen testified, Aiton III walked back up the hill to where he stood, instructed Jensen to keep Doran and Angle on the ground, and asked if Jensen knew where Hendershot was. 'A moment later, the latter walked over to Aiton III and-Jensen. Hendershot and the superintend- ent spoke about Doran and Angle drinking that after- noon. Hendershot stated that they had been, warned the day before, and both men agreed that Doran and Angle would "get their checks." Jensen also testified that the two discriminatees worked for him for -just 15 -minutes that afternoon 'and that he did not assign either one to work up on the scaffolding. Denying that he, spoke to Jensen after confronting Doran and Angle that afternoon, Aiton -III -testified that he met Hendershot 'on the road between the reclaim tun- nels. "I told him that I had caught [Doran and Angle] drinking again ... and told [him] that I was going to tive regarding the can from which Angle drank: "I saw Mr . Angle drink- ing out a beer can that I knew at that time was a beer can . , 87 According to Aiton, in, he believed that Angle heard what he said as there, was no loud noise interference (while a crane was operating, it was over 200 feet away). , 89 Jensen testified that Mitchell Getz was working up on the scaffold- ing atl that time. 89 Jensen averred, "I could see vividly what they were drinking at that distance." As to Doran, he was drinking Coors Light -beer-"a lot of ' people call it the Silver Bullet . And you can spot that can a mile away. It[']s a distinct can." As to Angle, Jensen identified his can as a Pabst Blue 'Ribbon beer can and denied that the can was wrapped within a styrofoam container. According to Jensen, "Frankly, because I never thought Pabst was a very good beer, that's-one reason I noticed [Angle] drinking Pabst-because I figure be probably got it on sale. And the SiIvet Bullet, it[']s just a distinct beer Matter of fact, its, the beer I drink." BUCK BROWN CONTRACTING CO. have to fire them." Hendershot replied, "Oh, shit," and shrugged his shoulders; Aiton- III turned and walked away.9° Hendershot testified that he was unaware that Doran and Angle had been observed drinking that day until so informed by Aiton III. According to Hender- shot, Aiton III came over to him and said that his pep talk did not work because Aiton III caught Doran and Angle drinking again. Hendershot states that he replied, "Well, you caught them, What the hell do you -want me to do." He further- testified that as he knew where Doran and Angle were eating their lunches, he went and in- formed them that they had been caught drinking. After speaking to Hendershot, according to Aiton III, he went to the office trailer and instructed Office Man- ager Flinchum to prepare final checks and termination notices for the two discharged employees . Aiton III then walked out of the office and encountered Mike Herndon just outside the trailer. According to the former, he asked Herndon if he knew what had happened and said that he had to fire Doran and Angle . Herndon replied, "That's all you can do." Next, Aiton III testified that he drove back toward the radial arm stacker and was sur- prised to find Doran and Angle working there. He in- structed the two employees to go to the office saying, "`I'm going to have to let you go for drinking."' Neither denied the accusation, and Doran responded that he should go ahead and fire them and threatened that the job would be struck the next day. Aiton III' then offered to give ]Doran and Angle rides, but they refused. Mike Herndon testified that he first learned that Doran and Angle had been terminated during' a conversation with Afton III and Hendershot ' that afternoon in the yard near the office trailer. Aiton III said that he had just caught the employees drinking beer and was going to "terminate them. Later, according to Herndon, he noticed Doran and Angle preparing to leave the jobsite, and he spoke to them, Doran seemed .angry but neither employ- ee denied having consumed beer, that afternoon. "The only thing [Doran] said to me was that it was his word against theirs."91 The General Counsel contends that, assuming Doran and Angle were, in fact, drinking beer on May 30, such was not a ' valid reason for discharge inasmuch as not only was the rule' prohibiting the consumption of alco- holic beverages on the jobsite not strictly enforced but also the practice was actually condoned by Respondent. In support, he points out, and the record establishes, that beer cans; on occasion, could be found in the employee parking area near the jobsite92 and that it was the custom of union members to drink beer with their lunches. He further points to the testimony of Wendell Bridges that the night crew foreman , Jim Easter, openly consumed the contents of a one ' pint bottle of vodka just so On cross-examination, Aiton III changed Hendershot's reply to, "Oh, shit .... And I had warned both those guys yesterday." 91 At the hearing, both Doran and Angle denied drinking any sort of alcoholic beverage on the afternoon of May 30 . Regarding which brand of beer each favors, Doran stated that he normally drinks Coors Regular beer but, on occasion, he drinks Coors Light, and Angle stated that he normally drinks Pabst Blue Ribbon beer. 9 a The parking area was utilized by employees of all subcontractors, including Respondent, on the ,lobsite. 519 a few -hours prior to work on May 13. Next, counsel relies on the testimony of carpenter Mitchell Getz on cross-examination that on one occasion, he observed Foreman Obie Bodiroga sitting in a truck, parked be- tween the crusher building and the radial arm stacker, and drinking whiskey, Getz averred that he knew the foreman was drinking whiskey because "it was in a whis- key bottle." However, under intensive questioning, Getz admitted that he did not see a brand name and that "I don't know that it was a whiskey bottle. It was a flat pocket flask, that I have identified with a pint bottle of liquor:" Getz further admitted-that he only assumed the "flask" contained whiskey as "that is the only thing I have seen in bottles that look like that." Specifically per- taming to the carpenter crew at the reclaim tunnels, Doran, Angle, and Getz all testified that the practice of drinking beer with lunch was common on that crew and was openly permitted by Foreman Bruce Alford. In this regard although there is, no evidence that Aiton III or other upper level managerial officials were aware,, Doran testified that Bruce Alford brought beer to the jobsite one day and informed the crewmembers that he had no objection to the crew drinking beer with lunch as long as cans were put back in the lunchboxes and not left lying on the ground and that, thereafter, all crewmem- bers had beer with their respective lunches, with the drinking normally confined to the job shack. Both Angle and Getz corroborated Doran in this regard; however, Getz added that there was much beer can litter around the reclaim- tunnels area, with as many as "a couple of cases of cans" lying around. This latter assertion is open to doubt in ' light of the above testimony of Doran, the testimony of -Mike Herndon that he never saw empty beer cans on the jobsite, and the testimony of Angle, who gave as the reason why he put the can, from which he had been drinking- during lunch on May 30, back in his lunchbox-"We never threw trash out. That was one of the things Bruce always was after us about . . . . He didn't want garbage, or trash, or anything." Getz testi- fied ° further that beer drinking during lunch continued on Hendershot's'crew after the terminations of Doran and Angle, with Getz drinking beer approximately three times a week and in Hendershot's presence in the job shack-a practice that the latter specifically denied. Fi- nally, the General Counsel points to the content of Hen- dershot's comments to the' crew on May 29 as establish- ing that Hendershot, who saw nothing wrong with a beer for lunch, did not mind beer drinking as' long as the people, left no beer can litter on the project. In this regard, Angle interpreted Hendershot's comment' as fol- lows: "I took that to mean that you better not drink any beer on the job when he was there." 2. Analysis The consolidated amended complaint alleges that Re- spondent violated Section 8(a)(1) and (3) of the Act by terminating employee David Doran and John Angle. In support, the General Counsel argues that each engaged in protected concerted activity, that the individual who effectuated the terminations, Aiton III, harbored animus against all employees who created "problems" on the 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD project, and that the discharges occurred just 1 day after Doran angered Aiton III by accusing the latter, in the presence of the entire reclaim tunnels crew, of acting in violation of the union contract by directly supervising the crew. Contrary to this, counsel for Respondent argues that Doran and Angle were terminated 'for violat- ing Respondent's express prohibition against the con- sumption of alcoholic beverages on the jobsite. As to this, the General Counsel asserts that Respondent's de- fense is wholly fabricated- and, even if Doran and Angle were drinking on May 30, that Respondent's "prohibi- tion" was openly violated by its own foremen and that drinking on the jobsite was condoned. At the outset, I believe that the General Counsel, has made a prima facie showing that David Doran's union activities were a motivating factor in Respondent's deci- sion to terminate him. Initially, Respondent 's witnesses, Lively and Aiton III, admit that Doran , on at least two occasions, raised contract-based complaints regarding their conduct-to Lively for performing bargaining unit work and to Aiton III for having directly supervised the work of the reclaim tunnels crew . That Lively reacted adversely to Doran's conduct is clear, for he admittedly threatened to terminate both Doran and Don Jackson be- cause of the complaints. As to Aiton III, he did not deny the testimony of Wendell Bridges that on the afternoon of May 15 Aiton III warned, "Anyone that creates any problems from now on is going down the road." I have previously drawn the inference that, based on Respond- ent's conduct herein, by "problems," Aiton III was refer- ring to "union problems" or employees engaging in pro- tected concerted activities. In the ensuing 15-day period not only did Mike Herndon do so on two occasions but also Doran directly complained to Aiton III regarding assuming supervisory authority over the reclaim tunnels crew. The next day after so complaining, Doran was ter- minated by Aiton III. Clearly, then, the inference is war- ranted, indeed, mandated that Doran's union activities may have been a motivating ,factor in his discharge. As to John Angle, whether a prima facie showing of unlawful animus has been established is less certain. Thus, notwithstanding the aforementioned animus exhib- ited by Aiton III toward union adherents, the fact is that Angle's sole instance of having engaged in union or other protected concerted activities concerns his demand to, Respondent for payment for having worked through his morning break and lunch break periods on May 21. In this regard, Angle admits that he raised the matter only to Bruce Alford and that Alford not only agreed but also exhibited no, anger over Angle's demands. Fur- ther, there is no evidence that Aiton III reacted nega- tively to Angle's demand or that after Aiton III respond- ed, Angle continued to insist on increased compensation, In fact, Angle seems to have accepted Respondent's answer to his demand. Accordingly, although Angle may have engaged in union and/or other protected concerted activities, I will- not draw the inference that such was a motivating factor in his discharge. However, I do find merit in the General Counsel's alternative argument that, if Doran was unlawfully terminated by Respondent, Angle was an unoffending victim of the conduct ., In con- cluding that the discharge of employees, along with uals to either Herndon or Aiton III. clearly, unlawfully terminated workers, is likewise un- lawful, the Board often adopts the rationale that "it is clear that their layoff was essential to give colorable sup- port to the claim [that the discharges were lawfully moti- vated]. As the claim has been found to lack merit, their layoff was also unlawful." Hall of Mississippi, Inc., 249 NLRB 775, 778 fn. 7 (1980). Accordingly, inasmuch as Respondent's defense is identical for both Doran and Angle (with each discharge intertwined in the other), if Doran was unlawfully discharged, the same conclusion must be drawn as to that of Angle. As with -all the instant discharges, the question is has Respondent established that the discharges of Doran and Angle would have occurred notwithstanding the union and/or protected concerted activities of David Doran. Put another way, has Respondent established that these two employees were discharged for having violated a work rule, of which' both were admittedly aware-a rule prohibiting the comsumption of alcoholic beverages on the jobsite. In this regard, I must initially determine whether Doran and Angle were, in fact, drinking beer with their respective lunches on May 30, and I note that such involves essentially a matter of credibility-do I be- lieve Aiton III and Jensen that they observed the forego- ing, prohibited conduct or do I credit the explicit denials of same by Doran and Angle. Both the General Counsel and counsel for Respondent have set forth cogent and convincing arguments that not one of the above individ- uals should be credited and, indeed, I did not find either Aiton III, Jensen, Doran, or Angle to be a particularly convincing witness. Thus, as to the former pair, their tes- timony as to what they observed, said, and did on' May 30 was utterly contradictory. Likewise, Doran and Angle, besides contradicting each other as to the events of May 30, were directly' contradicted on significant points by other witnesses, who testified on behalf of the General Counsel. Additionally, I found utterly unpersua- sive their respective lapses of memory with regard to im- portant events and conversations. Yet, they either were or were not drinking beer with lunch that day. With credibility problems as to each of the four main witnesses, I look to the other witnesses and the record, as a whole, in order to resolve this matter. Two wit- nesses, in particular, impressed me as being honest and candid in their respective testimony-Mike Herndon, the job steward, and John Hendershot, the replacement fore- man. Based on their testimonies, I conclude that on May 29, Hendershot observed Doran and Angle drinking beer with their lunches; that he warned and threatened each with termination if caught doing so in the future; that Hendershot informed both Herndon and Aiton III of the events of that afternoon;93 that on the morning of May 30, Herndon warned Doran, and perhaps Angle, about the consequences of drinking beer on the jobsite; and that when Herndon' confronted Doran after the termina- tions, the latter did not deny the-stated reason for such averring only, "it was his word against theirs." As to the record ' itself, two facts, regarding the events of May 30, ss In so domg, I credit Hendershot that he did not identify the individ- BUCK BROWN CONTRACTING CO.' 521 are of utmost significance. First, by their own admis- sions, neither Doran nor Angle, at any time, denied that he had been- drinking beer with lunch that afternoon. The General Counsel sought to minimize the adverse consequences of this fact by asserting that Doran be- lieved that it would be useless to argue with Respondent and that Angle deemed it of little utility to contest the issue when he was so far from home. I cannot accept such explanations; rather, I believe that discharge for cause, especially for arguably spurious reasons, is-or should be-of sufficiently serious magnitude to warrant some sort of a protest-even if limited to a denial. But, assuming the uselessness of a protest to Respondent, surely, if Respondent's ,allegations were untrue, one would think that Doran and Angle would immediately lodge a protest with the Union, the entity most likely to be supportive. Yet, when Herndon spoke to Doran as the latter was leaving the jobsite, Doran still did not deny the allegation, choosing to plead that it was his word against Respondent's. But, of even more significance to a determination of credibility than the foregoing factor is the related fact that, contrary to Doran's assertion to Herndon, Doran and Angle were carrying with them the proof of their innocence-the cans from which they drank during lunch. This must be the case inasmuch as Angle testified that after he finished eating, he placed his empty can of Gatorade back in his lunchbox. Presumably, Doran did the same, for Angle further testified, "We never threw trash out. That was one of the things Bruce always was after us about." He continued, stating that all luncheon refuse was carried away from the jobsite by the employees in their lunchboxes as there were no trash barrels located on the jobsite. In these circumstances, it is not accurate to say that whether Doran and Angle drank beer with lunch on May 30 was a matter of their word against that of Jensen and Aiton III. Rather, when in their view, wrongly accused of such that afternoon, all that was required of either Doran or Angle was to exhibit the proof of his innocence, which, as far as can be determined from the record, was stowed'in his lunch- box. Yet, neither discriminatee thought to do so. The reasons for this and the failure of both to,' at least, deny the accusation of drinking beer on the jobsite were, I must conclude, that not only were both drinking beer with lunch but also that each, presumably, was carrying an empty beer, can in his lunchbox on leaving the jobsite that afternoon. Based on the foregoing, and the record as a whole, I credit the testimony of Aiton 11194 as to the fact that on the afternoon of May 30, initially while standing at the base of the footing of the radial arm stacker and later as he confronted the two employees at the back of the job shack, he observed David Doran and John Angle, sitting side by side-behind the job shack and each drinking beer with his lunch, and as to his subse- quent movements and conversations that daly.9 s The General Counsel argues that, notwithstanding my aforementioned conclusions, Doran and Angle were ter- minated for having engaged in protected[ concerted ac- tivities as Respondent condoned the practice of drinking alcoholic beverages on the jobsite. Insofar as this argu- ment bears on the motivation of Aiton III, on whose ob- servation and decision the discharges were based, I find it to be without merit. Regarding the presence of a few beer cans in the employee parking area, inasmuch as the location was utilized by many different construction craft workers, employed by several jobsite subcontractors, it could hardly be said that such represents condonation by Respondent of violations of its drinking while on the job- site prohibition. As to the conduct of James Easter in drinking vodka before work on May 13, while perhaps in contravention of the rule, as there is no evidence that Aiton III was aware or permitted this, I fail to see how this bears on the motivation of Aiton III in terminating Doran and Angle. Next, I do not credit the testimony of Mitchell Getz that he once observed Obie Bodiroga drinking "whiskey" -from some sort of a container on the jobsite. Not only was his testimony as to this alleged in- cident contradictory and apparently based on assump- tions, but also Getz' demeanor while testifying was that of one biased on behalf of the Charging Parties. He im- pressed me as testifying to whatever would advance the causes of the discriminatees and as willing to embellish his testimony to accomplish this goal. Perhaps the most pertinent example of this was his ' utterly incredible asser- tion that as many as a couple ' of cases of beer can litter could be found around the reclaim tunnels area. No other witness corroborated 'this, and both Doran and Angle insisted that Alford instructed the crew never to leave empty -beer cans in the work area and that they complied with this. The most troubling aspect of counsel's contention con- cerns the alleged granting, by Bruce Alford, of permis- sion to the members of his, crew to drink beer with lunch. I note initially that the occurrence of such rests on the less than credible testimonies of ]Doran, Angle, and Getz. There is not a scintilla of corroborating evi- dence except for the fact that Doran and Angle were ob- served having beer with lunch on May 29. Presumably, they would not have acted in such blatant disregard of Respondent's prohibition against such conduct unless they had previously been permitted to do so. In any event, the fact is that if such permission had been grant- ed, such was done by a prior supervisor. Their new su- pervisor, John Hendershot, specifically warned them against, drinking beer on the project and ,can, in no way, be considered to have also permitted such. This is clear from Angle's admission that he interpreted what Hender- shot said as prohibiting the drinking of beer in the latter's presence. Moreover, Mike Herndon explicitly repeated 94 I do- so notwithstanding the utterly conflicting testimony of Dennis Jensen, on whose testimony I do not, at all, rely. I reiterate that Jensen impressed me as being a biased witness who tailored his, testimony to fit Respondent's view of the facts. I can find no explanation-or justifica- tion-for Respondent's use of him as a witness. 9s Noting that Aiton III and other witnesses, including Herndon and Hendershot, are contradictory regarding what was said during conversa- tions that afternoon, I do not think that such detracts hom the credibility of any witness, believing that honest men may honestly differ as to their recollection of past events. Finally, as to whether Aiton III was in a posi- tion to observe Doran and Angle prior to walking down to the job shack, I note that neither Hendershot nor' Mitchell Cietz, who, in any event, I do not credit herein, denied that Aiton III may, at some point, have been at the footing of the radial arm stacker. 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this 'warning certainly to Doran and perhaps to Angle the next day. Accordingly, contrary to 'the General Counsel, there was no, practice, as of May 30, on the re- claim tunnels carpenter' crew permitting the drinking of 'beer with lunch and, at least, Doran was well aware of this.96 Finally, as between Hendershot and Getz, I rely on the denial, by the former, that any drinking occurred on his crew , subsequent to the discharges of Doran and Angle. I shall, therefore; recommend that the paragraphs of the consolidated amended complaint, pertaining to the discharges of Doran and Angle, be dismissed. F. Other Alleged Violations of the Act I have previously concluded that in order to inhibit union and other protected concerted activities at the Tonopah Mine jobsite, Respondent's management offi- cials, often taking advantage of the Union's insecurity 'with regard to its collective-bargaining relationship with Respondent, engaged in blatantly -coercive tactics. Thus, I have credited Mike Herndon and Cliff Kahle that on two occasions Project Manager Jim Joy "predicted" that Respondent would lose its construction contract for the project and that such would be awarded to Brown and Root, a nonunion contractor, if union memberfem- ployees caused "union problems" or otherwise engaged in protected concerted activities. The record establishes that Joy never offered Respondent's employees or the Union any supporting evidence necessary to establish that the consequences, of which he spoke, were beyond Respondent's control.-Absent such, the law is clear that Joy's predictions constitute nothing more than veiled threats to close the business if employees engaged in con- duct protected by Section 7 of the Act and that this con- duct is violative of Section 8(a)(1) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969); George C. Shearer Exhibitors Delivery Service, 246 NLRB 416, 419 (1979); El Rancho Market, 235 NLRB 468, 472 (1978); Yellow Cab Co., 229 NLRB 643 (1977). Next, I have credited Don Jackson, as corroborated by David Doran, that Joe Lively threatened to terminate them unless they stopped complaining about his propensity to perform unit work-in violation of the collective-bargaining agreement. There is no question that both Jackson and Doran engaged in conduct protected by Section-,7 of the Act,and that, therefore, Lively's threat, in response to the activities, was in violation of Section 8(a)(1) of the Act. Cal-Waits, Inc., supra; Rose's Stores, supra., Also, I have credited Herndon that on one occasion Joy interro- gated him regarding his duties as job steward and threat- ened future adverse consequences because of the con- duct. I agree with the contention of the General Counsel that such constitutes harassment of an employee' engaged in activities protected 'by 'Section 7 of the Act and, thus, 96 I give no credence to Doran's self-serving statement that had he known, he would never have violated such an express prohibition. Rather, I credit Aiton III that Doran did not believe that anyone could see hint drinking beer in back of the job shack that afternoon Also, there is no evidence that Aiton III was aware of any beer drink- ing by the reclaim tunnels crew during the month of May. Thus, not- withstanding whatever Alford may have permitted, I believe Aiton III was ignorant of such. conduct violative of Section 8(a)(1) of the Act. Blount Bros. Corp., 230'NLRB 586 (1977). Further, the uncon- troverted threat' of Aiton III to Wendell Bridges on May 15, that those creating "union problems" from that point on would be fired, clearly constitutes a threat of termina- tion ' for engaging in union activities and is violative of Section 8(a)(1) of the Act. Stewart-Warner Corp., 253 NLRB 136 (1980). Further, I believe that Easter's state- ment to Bridges on teaming that the latter intended to take Robert Kelly to Las Vegas ("Look son, .. '. You want to work on my crew ... you' stay out of other people's business.") constitutes the same type of-threat of adverse consequences for engaging in protected concert- ed activities and is, likewise, violative of Section 8(a)(1) of the Act. Finally, Lively's interrogation of Randal Fansler as to why he spoke to Job Steward Herndon on April 24 constitutes unlawful interrogation in violation of Section 8(a)(1) of the Act. Morton's IGA Foodliner, 237 NLRB 667 (1978). REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed -to effectuate the -purposes of the Act. I have found that Respondent discharged em- ployees Randal Fansler and Robert Kelly on May 6 and 14, 1980, respectively, in violation of Section 8(a)(1) and (3) of the Act and that Respondent discharged employee Wendell Bridges on May 15, 1980, in violation of Section 8(a)(1) of the Act. Accordingly, I shall. recommend that Respondent be ordered to offer each employee immedi- ate and full reinstatement to his former position of em- ployment or, if the position no longer exists, to a substan- tially equivalent position, without prejudice to any rights and privileges to which he may be entitled. I shall fur- ther recommend that Respondent be ordered to make each employee whole for any loss of earnings he may have suffered as a result of his discharge by payment to him of the amount he normally would have, earned from the date of his termination, with backpay to be computed in the manner set forth- in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in Isis Plumbing Co., 318 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Furthermore, it shall be recommended that Respondent be ordered to post a notice, setting forth its, obligations herein. CONCLUSIONS OF LAW 1. Respondent is an employer engaged, in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging employees 'Randal Fansler and Robert Kelly on May 6 and 14, 1980, respectively, based on their union and other protected concerted activities, Respondent engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act. 4. By discharging employee Wendell Bridges on May 15, 1980, based on his protected concerted activities, Re- spondent interfered with, coerced, -and restrained its em- BUCK BROWN CONTRACTING CO. ployees in the exercise of the rights guaranteed them by Section 7 of the Act and , thereby, engaged in unfair labor practices violative of Section 8(a)(1) of the Act. 5. By threatening that Respondent could lose its con- struction contract because employees engage in union or other protected concerted activities; by threatening to terminate employees because they engage in union or other protected concerted activities; by threatening to adversely affect the job steward's ability to perform the duties and responsibilities of his position because of his activities on behalf of the Union; and by interrogating 523 employees with regard to their union activities, Respond- ent interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed them by Section 7 of the Act and, thereby, engaged in unfair labor prac- tices violative of Section 8(aXl) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Unless specified above, Respondent engaged in no other unfair labor practices. [Recommended Order omitted from publication.]