Ruff Electrical Construction Co., Inc.

RUFF ELECTRICAL CONSTRUCTION Ruff Electrical Construction Company, Inc. and International Brotherhood of Electrical Work- ers, Local No. 5, AFL-CIO. Cases 6-CA- 20532 and 6-CA-20573 September 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 2, 1989, Administrative Law Judge Stephen J. Gross issued the attached decision. The General Counsel filed 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions as modified, and to adopt the recom- mended Order. The judge found that the preponderance of the evidence did not establish that union activity was a motivating factor in the layoffs of Daniel Anglum and Charles Moss or in the discharge of Anthony Kainz. The judge therefore concluded that the Re- spondent did not violate Section 8(a)(3) and (1) of the Act regarding Anglum and Moss, and did not violate Section 8(a)(4), (3), and (1) regarding Kainz. In agreeing with the judge's conclusion that the Respondent did not violate the Act, we find that even assuming that the General Counsel estab- lished a prima facie case, the Respondent has met its burden of demonstrating that it would have laid off or discharged these employees even if they had not engaged in protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). In evaluating the Respondent's business de- fense, we rely on facts established by the uncontro- verted testimony at the hearing as well as those discussed by the judge. In this regard, we find that the evidence supports the assertion of Thomas Ruff, the Respondent's owner, that he laid off Anglum and Moss and discharged Kainz because of concerns about their productivity at Clairton. The Clairton project, which involved the com- plete rewiring of the school's electrical system, was ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings. 501 the largest contract ever awarded to the Respond- ent. The Respondent's electrical work at Clairton proceeded on schedule until approximately May 1987,2 at which time Ruff decided that Richard Schwartz should replace Ronald Kuhn as the project's foreman. Ruff spent little time at Clairton in June and July, and testified that he first realized in August that there were "serious" problems when he started receiving complaints from the project's architect, Victor Graves, and the other contractors to the effect that the Respondent was not keeping up with the other contractors and was holding them back. On August 7, Ruff reinstated Kuhn as the project foreman and told him that if Kuhn could not turn the project around in 2 weeks, the employees on the project would be replaced by more productive labor. Thereafter, following his return from vacation, Ruff began to spend more time at Clairton, includ- ing attending job meetings at which the contractors discussed the status of the project. According to Ronald Smith, project superintendent for Uhl Con- struction, the general contractor, one of the sub- jects discussed at the weekly meetings was the delay caused by the Respondent. On August 22, Ruff estimated, based on the number of man hours already worked at Clairton and the percentage of the electrical work already completed, that com- pletion of the electrical work on the project would require about 2100 more hours than originally planned. Ruff described this 20-percent increase over the projected hours on which he had based his bid for the project as a "big problem." It was in this context that Ruff, on August 23 and 30, laid off Moss and Anglum. Ruff testified that, based on his observations, they were the least experienced and least productive employees on the job. Specifically, Ruff was concerned that the dem- olition work they were performing would not be completed by the end of the month. Ruffs asser- tions that he had seen Anglum standing around talking and that he saw Anglum and Moss carrying small amounts of material to the dumpster, rather than collecting it in a cart and taking a full load, constitute objective evidence in support of his con- cerns about their productivity. Ruff further testi- fied that Anglum was aware that Ruff was watch- ing him walk to the dumpster and that Anglum then began to whistle, which Ruff interpreted as a gesture of contempt. Significantly, Ruff's conten- tion that these employees displayed a poor attitude was supported by the judge's findings regarding prevailing wage matters, and by the testimony of Smith, who stated that beginning in the spring of 2 All dates are in 1987 unless otherwise indicated 296 NLRB No. 71 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1987 he noticed a change in the employees' atti- tudes toward Ruff.3 Graves testified that in September he discussed the contractors' concerns with Ruff and that Ruff, disagreeing with Graves' assessment that more electrical workers were needed at Clairton , charac- terized the problem as a need to increase produc- tivity per worker.4 According to Ruff, on Septem- ber 11 he recalled Anglum and Moss to perform some minor outside jobs so that none of the other employees would have to be taken off the Clairton project. 5 Faced with pressure to complete the school's gymnasium, Ruff then sent Anglum and Moss to hang the preassembled lights. Ruff stated that although the assignment should have been completed in 1 day, Anglum and Moss required more time and displayed a bad attitude . Under the circumstances, including mounting pressure from the other contractors and Ruff's increased familiari- ty with the details of the project, we find that Anglum's and Moss' performance of the lighting assignment reinforced Ruff's belief that they were not productive. Moreover, the fact that at least some of the employees hired in September to finish the electrical work had particular areas of expertise that were known to the Respondent is further ob- jective evidence in support of Ruff's asserted con- cern with worker productivity. Testifying that he hired Thurman Ingram and his crew to install the numerous light fixtures in the school , Ruff stated, "these guys really hustle . They go in and get a job done and they're out." Describing the problems presented by unclear specifications for the fire alarm system, Ruff testified that he hired a former employee, Gene Saus, who had the knowledge to design and build the system as he went along. Ac- cording to Ruff, these employees required little su- pervision and were able to complete the work. Following the layoffs of Anglum and Moss, and despite the hiring of new employees, the evidence indicates that Ruff's problems at Clairton intensi- fied. Thus, on October 30, Smith wrote to Graves concerning the scheduling and production prob- lems caused by working in underlighted and un- lighted areas and the Respondent's failure to per- form "patchwork" where plaster needed to be re- paired. Smith went on to question the Respondent's productivity. By response dated November 10, Graves instructed Uhl Construction to do the a The fact that the employees' productivity may have been influenced by the prevailing wage discussions instituted by the Union does not estab- lish that Anglum and Moss were laid off for discriminatory reasons 4 Smith and Graves both testified that in their discussions with Ruff about the delays, Ruff never mentioned either the Union or his employ- eeti union activities s In this regard , we find it unnecessary to pass on the judge's specula- tion that Ruff recalled Anglum and Moss, rather than hire two new em- ployees, in order to reduce the Respondent 's backpay exposure patching work, for which the Respondent would be charged. The following day, Graves wrote to Ruff discussing the complaints that had been re- ceived "for the past five or six months . . . about delays being caused by your company ."s Graves stated, "It is evident that you will continue to fall further and further behind if something is not done." Noting that the carpeting was scheduled to be installed on December . 1, Graves warned that noncompletion of the electrical work could result in additional cost to the Respondent from possible damage to the carpeting. The letter concluded, "you are hereby notified that should any expense, cost or liquidated damages result due to your de- laying the project, the School District will look to you for compensation." Ruff testified that from the beginning of Novem- ber, he was at Clairton at least 8 hours a day for 6 or 7 days a week for 2 months. He stated, "I was totally consumed with completing that project . , , . My future was on the line . . . . I just lived that job . . . . I had to get it finished."7 During this time of intense personal pressure be- cause of problems on the project , Ruff, on Decem- ber 9, discharged Kainz, whom he was supervising, for unsatisfactory work, inability to complete projects on time, and a poor attitude . In early De- cember Kainz had not completed a minor job in- volving an emergency electrical line; there is no evidence that Ruff was aware that Kainz had been told that Ruff wanted him to help another employ- ee on another assignment. Additionally, on Decem- ber 6, Kainz had broken a piece of plaster while drilling. In view of the fact that the Respondent's delay in patching plaster had been a subject of complaints from the other contractors and that Ruff had given Kainz specific instructions on how to drill through plaster, we agree with the judge's finding that Ruff's reaction to the incident in ex- ploding in anger was more the product of pressures on him than the incident itself. We also agree that Ruff was further provoked by Kainz who, when confronted, stated, "Do what you have to do," walked away, and refused to return when Ruff called to him. Accordingly, we conclude, as did 6 The problems included failure to perform plaster patching which de- layed the completion of painting, tiling, and carpeting, inadequate instal- lation of temporary light which resulted in workers using flashlights; lack of controls and thermostats which delayed the provision of temporary heat, lack of switches at control panels which delayed completion of the building's heat and exhaust systems; lack of a master switch for tempo- rary light and power which resulted in nonelectricians losing time by having to turn individual systems on and off; and lack of permanent wiring to light fixtures which delayed the placement of ceiling tile 7 Pursuant to the Respondent's indemnification agreement with its in- surer, any charges incurred due to the failure to complete a project could be recovered from the Respondent Company as well as from Ruff indi- vidually RUFF ELECTRICAL CONSTRUCTION the judge, that Ruff discharged Kainz based on his perceptions of low productivity and for reasons un- related to Kainz' protected activity.8 For the above reasons, we find that the Re- spondent has demonstrated that it would have laid off Anglum and Moss and discharged Kainz, even absent their protected activity, based on Ruff's as- sessment that the Company had a compelling need to replace unproductive employees at Clairton. We therefore conclude that the Respondent did not violate the Act as alleged. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. a In finding that Kainz was not unlawfully discharged , we also note that during the time that Kamz engaged in protected activity, i e , from the time he signed an authorization card through his testimony at the hearing on the challenged ballot , he was in fact considered by other em- ployees to be a favorite employee of Ruff Janice Ann Sauchin and Donald K Burns, Esqs., for the General Counsel. Mr. Thomas H. Ruff, of Glenshaw, Pennsylvania, for the Respondent. Stanford A. Segal, Esq. (Gatz, Cohen, Segal & Koerner), of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE STEPHEN J. GROSS, Administrative Law Judge. The General Counsel claims that the Respondent, Ruff Elec- trical Construction Company (the Company or Ruff Electric), violated the National Labor Relations Act (the Act) by laying off employees Dan Anglum and Charles Moss and by firing and issuing "a poor performance evaluation" of employee Anthony Kainz. Ruff Electric acted against those employees, according to the General Counsel, because they joined and supported the Interna- tional Brotherhood of Electrical Workers, Local No. 5, AFL-CIO (the Union or Local 5). The General Counsel further alleges that Ruff Electric's action against Kainz also stemmed from Kainz' testimony on the Union's behalf at a Board hearing.' Local 5's Organizing Efforts As of June 1986 the Company had only two employ- ees, brothers Ron and Russ Kuhn, both of whom had ' Local 5 filed its charge in Case 6-CA-20532 (regarding Moss and Anglum) on December 2, 1987 The charge in Case 6-CA-20573 (regard- ing Kamz) was filed on December 18, 1987 A consolidated complaint issued on February 9, 1988, and was amended on February 24, 1988. Ruff Electric admits that it is an employer engaged in commerce and admits that Local 5 is a labor organization within the meaning of the Act But Ruff Electric denies violating the Act in any respect The hearing was held in Pittsburgh on June 27 through June 29, 1988. The General Coun- sel has filed a brief Ruff Electric. which is not represented in this pro- ceeding by counsel , has not 503 been with Ruff Electric for many years. But earlier in the year Ruff Electric won the contract for all the elec- trical work involved in the refurbishment of a large school building in Clairton, Pennsylvania. The contract was for about $800,000. Ruff Electric had never before undertaken anything even nearly as large. In order to handle the Clairton work, along with the various other projects that the Company had underway, starting that June Ruff Electric began hiring additional employees. Anglum was the first, then Moss (in July 1986), then Richard Schwartz and Larry Ward. Respondent hired Kainz and three other employees in June 1987. Early in June 1987 Local 5 began its organizing efforts among Ruff Electric's employees. (All the events I refer to in this decision occurred in 1987 unless I specify oth- erwise.) By June 4, Anglum, Kainz, Moss, Schwartz, and Ward had signed authorization cards. On June 8 the Union filed an election petition. Respondent is wholly owned and run by Thomas Ruff. (I will hereafter use the name "Ruff" to refer to Thomas Ruff, but not to the Company.) The day the Union filed the election petition, a representative of the Board's Re- gional Office in Pittsburgh called Ruff Electric to advise the Company of the petition. As Ruff testified, "it was an emotional moment." Ever since Ruff was a child he had thought of Local 5 as a threatening, malevolent, force. (That stemmed from, among other things, Ruffs recol- lections of interactions between Local 5 and his father's company, which also was an electrical construction con- tracting company.) Moreover Ruff saw the election peti- tion as endangering his future and that of his family's. The Clairton project was a gamble for Ruff. He stood to lose virtually everything he owned, including his home, if his Company did not complete the project successful- ly. And the way it looked to Ruff, the unionization of Ruff Electric would materially increase the Company's costs of doing business and, therefore, also increase the chances of failure. Ruff testified that he did consider whether signing with the Union would have advantages for his Company. I credit that testimony. But the outcome of those consid- erations never really was in doubt. Ruff concluded that he wanted Ruff Electric to remain nonunion. Ruff initially said nothing about the Union's petition to any of the Company's employees. But once the election date was set-July 24-Ruff sent letters to the employees urging them to vote against union representation. On July 22 Ruff called the employees to a meeting to again argue against the unionization of Ruff Electric. And on or about July 23 he met with two employees, this time at their request where, once again, he argued that the em- ployees would be better off without a union.2 The voting on July 24 left matters up in the air. The Board counted five votes for the Union, four against. There was one challenged ballot. (The challenge was by Local 5. Months later the Board denied the challenge. Since the challenged ballot was cast against representa- 2 One employee testified that at this meeting Ruff said that "there would never be a union at Ruff Electric " But I do not credit that testi- mony 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion by Local 5-resulting in a five-to-five tie-the Union lost.) Ruff Electric Lays Off Anglum and Moss During the period encompassing the last days of July and the first days of August , Ruff Electric increased the pay of three employees, including Anglum and Moss, and company officials complimented Anglum and Moss for their good work. Ruff knew by then that Anglum and Moss supported the Union since in late June Ruff had attended a meeting at the Board 's Pittsburgh office in which officials of Local 5 conferred with Anglum and Moss. And Anglum had been the Union's observer at the election. But shortly after that pay increase action , Ruff began hearing about problems at Clairton. Other contractors complained that they were being delayed by Ruff Elec- tric's failure to stay on schedule. On August 7 Ruff re- sponded by putting a different foreman in place at Clair- ton (Ron Kuhn) and telling him that if "you [Kuhn] can't turn that project around in two weeks, I'm serious- ly thinking about replacing everybody on that project." Ruff thereupon left on a previously scheduled 10-day va- cation. A few days after Ruff returned to work he asked the Company's secretary to calculate how many hours Ruff Electric employees had worked at Clairton . At the time the Company had completed about 69 percent of its work at Clairton. Ruff got his answer on August 22. As of the close of business on August 21, Ruff Elec- tric's employees had logged 8760 hours of work at Clair- ton. Since Ruff Electric was only 69 percent of the way toward completion, that 8760 figure suggested that the Company would use a total of 12,696 hours of employee time at Clairton by the time the job was finished there. That, in turn, spelled disaster for Ruff, or something close to it. In determining what to bid for the Clairton contract, Ruff had estimated that Clairton would require 10,552 hours to complete. Thus the projected figure of 12, 696 hours was 20 percent higher than the hours upon which Ruff had based his bid. Ruff concluded that he had to increase the productivi- ty of his work force at Clairton , and that he would at- tempt to do so in two ways. First, by spending more time at Clairton himself; and second, by, as Ruff testified, putting "people in there that I felt could complete the project." Six Ruff Electric employees had spent a substantial percentage of their time at Clairton : the two Kuhn brothers (who had been with Ruff Electric for many years); Anglum and Moss (who Ruff knew to be union supporters); and Schwartz and Ward (who had signed union authorization cards but had done nothing to signal any prounion views to Ruff). On Sunday night, August 23 (the day following the employee-hours calculations for Clairton), Ruff called Moss to say that "there was no work available" for Moss and that Ruff Electric accordingly was laying him off "indefinitely . . . effective immediately." One week later Anglum got an almost identical call from Ruff. Given Ruffs belief that low employee productivity at Clairton was endangering the very existence of Ruff Electric, some sort of drastic personnel action was in the cards. The question is why Ruff focused on Anglum and Moss. Ruff said the reason was their lackluster performance at the Clairton site . (Ruff testified that Anglum's and Moss' productivity was not a problem at other locations. "I could never understand it. When I would send people [including Anglum and Moss] to other projects I had no problem, productivity was just fine. But when they would go back to Clairton, it would just drop. There was some kind of attitude problem. I don't know what it was.") As regards Moss, Ruff testified that on a number of occasions he saw Moss "just standing there." Ruff agreed that he visited Clairton only infrequently and that he did not say anything to Moss on any of the occasions on which he did see Moss goofing off. Moreover Ruff also volunteered that when he expressed his views to the foreman about Moss' slow pace , the foreman would dis- agree. 3 Nonetheless, Ruff testified, he was convinced that Moss was not carrying his share of the load.4 As for Anglum, Ruff testified that "I was very upset with Dan Anglum" because of low productivity, Ang- lum's apparent lack of concern about Ruff Electric's need to speed its pace, and Anglum 's expressions of hos- tility toward Ruff. Ruff described one incident involving both Anglum and Moss that Ruff clearly found very troubling. Both of them had carried small amounts of material all the way to the dumpster (a relatively long walk) rather than ag- gregating discarded material and using a cart to take a full load. As for Ruff telling the two employees that they were being laid off for lack of work rather than firing them, Ruff gave two different explanations. One was that Ruff Electric's workload was about to decrease. As of August 23 (when Ruff laid off Moss), Ruff Electric had 10 employees; on August 30 (when Ruff laid off Anglum), the Company was down to 8 em- ployees. The Company, said Ruff, was at that time in the process of winding up a number of its projects and did not need that many employees any longer . Thus, said Ruff, Ruff Electric did need to lay off two employees. (Another Ruff Electric official , James Loutzenhiser, tes- tified to like effect.) Ruff selected Anglum and Moss for layoff because "they were the least experienced, least productive people" employed by Ruff Electric. Ruff's other explanation for telling Anglum and Moss that they were "laid off" is that Ruff thought that that terminology would make things easier for both the em- ployees and for the Company than if Ruff had told Anglum and Moss that they were fired for cause. Ruff Electric Recalls Anglum and Moss, Then Fires Them Starting in early September the other prime contrac- tors at Clairton began putting on the record their view a Neither party called the foreman as a witness. 4 The foreman in those instances was Ron Kuhn Previously Schwartz had been foreman at Clairton , and he too told Ruff that the Ruff Electric employees at Clairton were getting their jobs done RUFF ELECTRICAL CONSTRUCTION that Ruff Electric's slow pace was delaying the entire project, and that that slow pace was due to insufficient manpower. On September 11, Ruff Electric put Anglum and Moss back to work. (The impression I got was that Ruff chose Anglum and Moss, rather than two new employees, in order to reduce the Company 's backpay exposure, whether as the result of litigation before the Board-al- though neither Anglum nor Moss had yet filed an unfair labor practice charge-or before some other tribunal.) On Thursday, September 17, the Board's Pittsburgh office held a hearing on the ballot that had been chal- lenged by the Union at the election conducted back in July. Employees Moss, Kainz, and Ward testified on behalf of Local 5. Anglum attended the hearing in com- pany with the Union's representatives, but he did not tes- tify. Friday, September 18, was the last day of work at Ruff Electric for Anglum and Moss. Sometime during the course of that day Ruff went to check on the work of the two employees. Ruff testified that he discovered that they had failed to complete nearly as much as he had expected . And both Anglum and Moss reacted with hostility when Ruff spoke to them. Ruff got upset. When he returned to the Company's office he complained bitterly about Anglum and Moss: "I don't know why the S.O.B.'s are trying to do it; I don't know why the S.O.B.'s won't work." On Sunday, September 20, Ruff called Anglum and Moss to say that they were laid off. Notwithstanding Ruff's use of the "term laid off," in fact Ruffs action amounted to a discharge. Ruff does not claim otherwise. Ruff Electric Fires Kainz Ruff Electric hired additional employees soon after Anglum and Moss left, all persons whom Ruff had previ- ously known. But the company remained behind sched- ule. By November 11 the project's architect was suffi- ciently concerned about Ruff Electric 's lack of progress to say so in a letter that ended: [Y]ou are hereby notified that should any expense . . . result due to your delaying the [Clairton] project, the School District will look to you for compensation. One of Ruffs responses was to begin working full time at Clairton, directly supervising the Kuhn brothers plus Ward and Kainz. Early in the course of Ruffs supervision of Kainz, Kainz said something to Ruff that made Ruff think that Kainz was insisting that Ruff Electric employees under- take only electrical work, and that Ruff Electric should hire pipefitters and plumbers to do work traditionally handled by those crafts. Ruff angrily responded that Ruff Electric had "won the election" and went on to say that ..you guys are trying to milk me down here on this job and I'm not going to go for it."5 s Kainz testified that Ruff also said, "we'll never be union " But I do not credit that testimony 505 Then, early in December, Ruff assigned a minor task to Kainz-an assignment easily doable within a day. Be- cause a fellow employee asked Kainz for help with an- other job, Kainz did not immediately turn to the job Ruff had assigned him. As a result, the following work- day Kainz had to tell Ruff that he had not yet finished that assignment. It is worth noting in this respect that at the time Kainz was being paid more than $22 an hour as a journeyman electrician . He had begun receiving that rate of pay in early September. Previously the Company had paid Kainz $12.50 an hour. Finally, on or about December 6-2 or 3 weeks after Ruff began working full time at Clairton-Ruff instruct- ed Kainz in a relatively simple task that involved, among other things, drilling through some plaster. In the course of that drilling a large chunk of plaster "blew out." From Kainz's viewpoint and that of a fellow employee, "it wasn't a big deal." But given the circumstances that Ruff Electric faced at Clairton, any mishap that required even a few additional minutes of employee time must have been aggravating to Ruff. Moreover the architect's November 11 letter had specifically referred to Ruff Electric's problems with plaster patching. Ruff did not see the hole in the plaster until December 7, the day after it happened. But as Kainz testified, when Ruff did, "all of a sudden Tom just started yelling at me." As the incident ended Ruff said something like, "if you can't do the job right, do you want me to get some- one else to do it?" Kainz responded by saying, "do what you have to do," and then walked away from Ruff. Ruff called to Kainz, but Kainz kept walking. Early in the morning on December 9 Ruff telephoned Kainz to say that Kainz was terminated as a Ruff Elec- tric employee "effective today." On that same day Ruff sent a letter to Kainz that read: To confirm my phone call to you on December 9, effective December 9, 1987, your employment with this company is terminated due to your unsat- isfactory work performance and your poor attitude. Specifically you have repeatedly failed to com- plete work assignments as directed and you have failed to complete work assignments in a timely manner. Specifically you have publicly exhibited disre- spect for your supervisor, myself. Specifically you have performed unworkman like work resulting in damages to finishes requiring un- necessary repairs. .. . The Fate of Other Prounion Employees at Ruff Electric The record shows that employees Anglum, Moss, Kainz, Schwartz, and Ward signed union authorization cards, and that Anglum, Moss, Kainz, and Ward ap- peared at Board proceedings on behalf of the Union, or at least in company with union representatives. As discussed above, Ruff Electric fired Anglum, Moss, and Kainz. Ruff Electric also fired Schwartz (in early September), and laid off Ward (in February or March 1988). These five employees appear to be the only elec- 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tricians whom Ruff Electric either fired or laid off. Thus of the only five employees the record shows to have supported the Union, Ruff Electric got rid of all of them. Yet during the same period Ruff Electric neither laid off nor fired any other electrician . That disparity could, of course, be mere coincidence. But those figures do raise one's suspicions . See, in this regard, NLRB Y. Camco Inc., 340 F.2d 803 (5th Cir. 1965). But the General Counsel does not claim that Ruff Electric's action in respect to either Schwartz or Ward violated the Act. 6 Moreover Ruff Electric was not put on notice that its discharge of Schwartz and layoff of Ward might be used to prove that the company acted against Anglum, Moss, and Kainz for unlawful reasons.? Prevailing and Wage Matters According to the evidence before me, most of Ruff Electric's work was covered by the Pennsylvania Pre- vailing Wage Act. In particular, the work at Clairton was. Under that Act: (1) specified wage rates have to be paid certain employees (including electricians) engaged in work covered by that Act; and (2) there is a fixed re- lationship between the number of journeymen (whose wages are specified) who can be employed on such projects and the number of apprentices (whose wages are not specified.)8 Also according to the evidence before me, the wages that Ruff Electric paid its journeymen working at Clairton met the requirements of the Prevail- ing Wage Act; but the Company did not abide by the specified journeyman-apprentice ratio. Ruff Electric deemed Anglum , Moss, and Ward to be apprentices the entire time it employed the three, and paid them accordingly. (Anglum never received much more than half the journeyman's pay rate . Moss and Ward earned less than half.) And the Company paid Kainz at an apprentice's rate until September 1987, when the Company began paying him journeyman 's pay.) As discussed earlier, representatives of Local 5 started organizing Ruff Electric's employees in June. One of the first matters they raised with the employees was that the Company was not complying with Prevailing Wage re- quirements. Specifically, as at least some of the employ- ees understood it, some of the employees being paid at apprentices levels should have been getting journeyman's pay. Sometime during the course of Ruff Electric's work on the Clairton project, Local 5 filed a complaint with the Prevailing Wage Division of the Pennsylvania State Department of Labor and Industry alleging that Ruff Electric owed three of its employees a total of at least $70,000 as a result of the Company's Prevailing Wage violations. These Prevailing Wage matters may have impinged on the relationship between Ruff Electric and its employees in at least two ways. One is that if the employees believed that they were being paid at unlawfully low rates, their work , or at least their attitudes, may have been affected . And that would tend to bolster Ruffs testimony about poor productivity and hostile attitudes on the part of Anglum and Moss. There is, indeed , evidence that such matters did affect the attitudes of some employees of Ruff Electric. At the preelection meeting that Ruff held in July, the employees asked a number of questions pertaining to their appren- tice status. And the project superintendent at Clairton for another of the prime contractors testified: [T]here seemed to be some dissatisfaction, some conflict that surfaced between employees and the employer . . . . In hindsight it was about the time that organizing activities were taking place. .. . The first time I noticed anything . . . out of the or- dinary, a group of electricians came in and asked to see my set of specifications and they seemed inter- ested in the wages set up . . . . by the specification. ... There was a change in attitude , because at the beginning of the job the employees seemed to be relatively satisfied with their jobs. And then during the time [that] there was some organization activity ... there seemed to be a conflict developed be- tween [the employees and] the employer.9 The other possible effect of the prevailing wage issue is that it may have inclined Ruff toward laying off em- ployees being paid at apprentice rates rather than em- ployees earning journeyman's pay. The problem with that theory, however, is that the record does not indicate when prevailing wage complaints were first filed against Ruff Electric. 6 Local 5 filed an unfair labor practice charge regarding Ward 's layoff, but the Union withdrew it at the General Counsel 's suggestion Schwartz did not file an unfair labor practice charge because , he testified, he had no interest in litigating his right to reinstatement at Ruff Electric I Ruff did testify about the reasons he fired Schwartz I received that testimony over the General Counsel 's objections. a According to testimony in this proceeding , the journeyman -appren- tice ratio allowed on prevailing wage jobs is as follows Journeymen Apprentices 1 1 2 3 4 2 5 2 6 2 7 3 Ruffs Conspiracy Theory As far as Ruff is concerned, there is no issue about whether Anglum, Moss, and Kainz were productive em- ployees at the times he fired them . He claims that it is clear that they weren't. The issue to Ruff, instead, is why the three were unproductive . And the answer, Ruff claims, is that it was the fault of Local 5 . Ruff contends that Local 5 wants to destroy Ruff Electric. As Ruff stated it, "I do not believe that their [Local 5's] actual intent was to legally organize employees of Ruff Elec- 9 According to the witness, while there was an attitude shift on the part of Ruff Electric's employees, "it really didn't seem to me that it af- fected their work." RUFF ELECTRICAL CONSTRUCTION tric. . . . I believe their only interest was to put Ruff Electric out of business." 10 One way the Union allegedly sought to do this was to institute various legal actions against the Company. In Ruff's words: [T]he Union has gone out of its way to interfere with Ruff Electric and have them [the Company's management] distracted from their work and suffer financial damages through complaints and what- ever. . . . I don't believe that the charges [filed by Local 5] are legitimate. . . . I think it is just another tactic of the Union because they lost the election. Another approach the Union used, Ruff believes, was to offer journeyman status to Anglum and Moss even though they did not in fact have the necessary experi- ence and skills. As Ruff put it, in respect to the relation- ship between Local 5 and Anglum: the promise was there [by Local 5] that when he [Anglum] was ready, they were ready to take him in. And therefore while he was still under the em- ployment of Ruff he would have the mental attitude of, "why should I perform for Ruff Electric at 10 or 12 dollars and hour when I can go over here with the Union at 21 or 22 dollars an hour." And the Union, in turn [was] hoping that Ruff would lay him off or fire him and consequently they could file a charge against Ruff Electric. Conclusion All things considered, my conclusion is that the pre- ponderance of the evidence fails to show that Anglum's, Moss', or Kainz' support for Local 5 was a factor in Ruff Electric's actions against them , or that the company's discharge of Kainz was related in any way to his testi- mony at a Board hearing. Anglum and Moss When Anglum and Moss were first "laid off" they were the only employees of Ruff Electric who had pub- licly manifested their support for Local 5. The Company reemployed them. But a couple of days after they sup- ported the Union at a Board hearing in September, the Company fired both of them. Moreover the only evi- dence that either Anglum or Moss was unproductive- Ruff's claimed reason for selecting them for layoff and discharge-was Ruffs testimony about their work. As the General Counsel points out, there is no objective evi- dence that they were any less productive than anyone else in the Company's employ. In fact the two foremen for whom Anglum and Moss worked (Kuhn and Schwartz) said that they got their jobs done. Moreover when Anglum and Moss were first laid off , Ruff had had only sporadically watched them at work. And the frame- work in which all this occurred was Ruffs fear and de- 10 Ruff was not on the witness stand when he made this statement or the two following quoted statements . Rather, he was arguing about the relevance of certain subpoenaed material. 507 testation of the Union and his belief that the Union was plotting to destroy his Company. It is a commonplace observation that any strongly held belief shapes the way one perceives-indeed, plays a role in determining what one perceives . Given Ruffs belief that Local 5 was intent on destroying him and his knowledge that Anglum and Moss supported the Union, there obviously is a possibility that Ruff, consciously or not, kept looking for evidence that Anglum and Moss were part of Local 5's conspiracy to destroy Ruff Elec- tric. In this light Ruffs comment about Anglum and Moss-"I don't know why the S.O.B.'s are trying to do it; I don't know why the S.O.B.'s won't work"-coupled with Ruff's admitted belief that Local 5 wanted to put him out of business and Ruffs knowledge that Anglum and Moss supported the Union-comes very close to proving that state of mind . And a boss' state of mind that ilk spells doom for any employee, since sooner or later some minor slackening off or mistake by the employee will permit the boss to convince himself that his conspir- acy theory is correct. As I add up the record , it comes extraordinarily close to showing that this is what happened to Anglum and Moss-that Ruffs belief about Local 5's hostile inten- tions produced his perception that Anglum and Moss were not doing their jobs . Since there is no evidence that Local 5 or any of Ruff Electric's prounion employees really was conspiring to destroy the Company, Ruff Electric's action against Anglum and Moss stemming from that belief on Ruffs part would be a violation of Section 8(a)(3) of the Act. See NLRB v. Burnup & Sims, 379 U.S. 21 (1964); Schneider's Dairy, 248 NLRB 1093, 1097 (1980), enfd. mem. 636 F.2d 1210 (3d Cir. 1980). But there is also evidence to the effect that Ruff did not hold the prounion employees ' stance against them. Both Anglum and Moss got pay raises after the two pub- licly indicated their allegiance to Local 5 . Employee Ward, who testified on behalf of Local 5 at the Septem- ber Board hearing, remained in the Company's employ for 5 or 6 more months. And the General Counsel's does not claim that the Company violated the Act in any re- quest when it laid off Ward. Finally, on Anglum 's and Moss' last day of work for Ruff Electric-a time when Ruff was desperately trying to figure out why employee productivity was so much lower than he had forecast-they were hostile and un- pleasant in an interaction with Ruff. And previously Ruff had spotted Anglum and Moss engaged in what Ruff considered a deliberate waste of time-walking the length of the building to dispose of paltry amounts of trash. Kainz In early September Ruff thought enough of Kainz to promote him to journeyman status . A few weeks later Kainz testified on the Union's behalf. A few months after that Ruff fired Kainz . And the event that Ruff claims precipitated his action against Kainz was, as the General Counsel accurately describes it, "a relatively insignificant and commonplace work occurrence."11 1I Br. at I I 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is altogether unlikely that, because of Kainz' testi- mony, Ruff deliberately schemed to get rid of Kainz, waiting nearly 3 months to fire Kainz in order to throw off the scent. On the other hand, it is possible that Ruff's reaction to Kainz' mistake might have been a product of the emotional baggage that Ruff carried concerning Local 5. That is, given Ruff's knowledge that Kainz sup- ported the Union, and given Ruff's belief that the Union wanted to destroy his company, Ruff may have deemed Kainz' mistake to be proof of Kainz' complicity in the effort to destroy Ruff Electric. But the weight of the evidence points elsewhere. Ruff fired Kainz in early December. At the time Ruff was under crushing pressure because of problems at Clairton. In respect to the incident that precipitated Kainz' depar- ture from Ruff Electric, Ruff had gone out of his way to instruct Kainz on how to accomplish what appeared to be a simple task. When Ruff happened by again, he was confronted by one of the very problems that had led him to give the instructions to Kainz-a good-sized hole in the plaster. Ruff exploded in anger, surely more a prod- uct of the pressures on him than the incident itself. The record suggests that the matter would have ended there if Kainz had responded by saying that it wouldn't happen again, or that he apologized, or something in that vein. Instead Kainz, understandably miffed by what seemed to him to be Ruff's vast overreaction, replied curtly to Ruff, then walked away, refusing to return or even to respond when Ruff called to him. Given Ruffs state of mind at the time, that behavior on Kainz' part virtually amounted to a demand to be fired. Under these circumstances there is no reason to think that when, soon thereafter, Ruff fired Kainz, that action had anything to do with Kainz' support for Local 5.12 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The complaint is dismissed. 12 The General Counsel argues that I should give meaning to Ruff Electric's failure to call Ron Kuhn as a witness ; the Company's "shifting defenses," the fact that neither Anglum , Moss, nor Kainz ever received any written warnings, and that other employees had put in more hours at Clairton than had Anglum and Moss . But in the circumstances present here, I think such factors say nothing about Ruff's motivation. Is If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses