Davis Electrical Constructors, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 115 (N.L.R.B. 1988)

DAVIS ELECTRICAL CONSTRUCTORS 115
Davis Electrical Constructors , Inc and North Caro
lina State Building & Construction Trades
Council , AFL-CIO Cases 11-CA-9018 and
11-CA-9806
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 4 1982 Administrative Law Judge
Robert W Leiner issued the attached decision The
Respondent and the General Counsel filed excep
tions and supporting briefs and the Respondent
subsequently filed a letter in further support of its
position i
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
conclusions3 and to adopt the recommended Order
as modified 4
' The Respondent asked the Board to take administrative notice of its
decision in Winer Motors 265 NLRB 1457 ( 1982) in considering the Re
spondent s exceptions to the judge s decision regarding the second layoff
of Charles Rickard
2 The Respondent asserts in essence that the judge s credibility resolu
bons findings of fact and conclusions of law are the result of bias After
a careful examination of the entire record we are satisfied that the Re
spondent s assertion is without merit There is no basis for finding that
bias and partiality existed merely because the judge resolved important
factual conflicts in favor of the General Counsels witnesses As the Su
preme Court stated in NLRB v Pittsburgh Steamship Co 337 US 656
659 (1949) [T]otal rejection of an opposed view cannot of itself impugn
the integrity or competence of a trier of fact Furthermore it is the
Board s established policy 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 Prod
acts 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 find
rags
We note the following inadvertent errors in the judge s decision which
are insufficient to affect our general agreement with the results of his de
cision which we have adopted In the fourth paragraph of sec III A of
his decision the judge incorrectly stated May 26 1981 rather than
March 26 1981 as Hardison s termination date referred to in the charge
and amended charge of Case 11-CA-9806 In In 3 of his decision the
judge mistakenly referred to the Respondent rather than the Union as
the party that filed the second amended charge in Case 11-CA-9018
Jesse Paul Watkins who the General Counsel asserts would have given
testimony to support the consolidated complaint s allegations pertaining
to Kermit Graham and Ted Box did not appear at the trial In view of
Watkins absence the General Counsel admittedly was unable to submit
evidence in support of these allegations We therefore dismiss them on
the basis of insufficient evidence
9 We have carefully reviewed the judge s decision and are satisfied that
the judge properly relied on the Respondents presettlement conduct ini
tially only as evidence establishing motive in the Respondents postsettle
ment actions We are further satisfied that the judge s findings taken in
their totality and notwithstanding their chronological order reflect that
he found the Respondent had engaged in unfair labor practices before the
settlement only after he first set aside the settlement agreement based on
the postsettlement violations he found
4 The settlement agreement provided that the four employees laid off
by the Respondent on March 20 1980 did not desire reinstatement to
In its exceptions and supporting brief the Re
spondent renews its prior arguments that the alle
gations regarding Charles P Rickards 1981 layoff
is not closely related to a timely filed charge and
thus is barred by Section 10(b) of the Act We do
not find this allegation barred under Section 10(b)
and we adopt the judges finding that Rickard s
March 1981 layoff violated Section 8(a)(1) (3) and
(4) of the Act We agree with the judge that the
allegation concerning employee Rickards March
1981 layoff is closely related to the pending timely
filed charge in Case 11-CA-9806 concerning em
ployee Hardison s March 1981 layoff In addition
we find that the complaint in Case 11-CA-9018
was properly amended to include this allegation
because Rickards March 1981 layoff is merely a
continuation of the previous unlawful conduct
toward Rickard alleged in the earlier charge in that
case 5
The relevant procedural facts are as follows On
March 26 1980 the Union filed a charge in Case
11-CA-9018 alleging that the March 20 1980 lay
offs of employees Hardison Rickard Townsend
and Watkins violated Section 8(a)(1) and (3) of the
Act A complaint issued on this charge and a hear
ing was held on January 8 1981 Employees Har
dison and Rickard who had both returned to work
for the Respondent by that time testified at this
hearing former employees Townsend and Watkins
also attended the hearing After Hardison and
Rickard testified the Respondent entered into a
settlement agreement resolving all the matters al
leged in the complaint 6
On April 7 1981 the Union filed a second
charge in Case 11-CA-9806 alleging that the
their former positions There is no ev dence to indicate that the employ
ees were coerced in any manner into giving this waiver and pursuant to
the settlement the employees were paid full backpay In fact Hardison
and Rickard were already reemployed by the Respondent and Townsend
was working for another employer at the time as shown by the record
Therefore contrary to the judge we shall not require the Respondent to
now offer Townsend reinstatement a second time Furthermore we qual
ify the judge s order of reinstatement for Hardison and Rickard to date
from their second unlawful layoffs of March 26 1981 Thus we do not
adopt the portions of the judge s recommended remedy and Order that
direct that the Respondent make a reinstatement offer to Townsend and
continue to pay him backpay until such an offer is made to him See Lane
Aviation Corp 226 NLRB 575 ( 1976) revised at 228 NLRB 1028 (1977)
Jackson Tile Mfg Co 122 NLRB 764 (1958)
In accordance with our decision in New Horizons for the Retarded 283
NLRB 1173 (1987) interest on and after January 1 1987 shall be corn
puted at the short term Federal rate for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to January 1 1987 (the effective date of the 1986 amend
ment to 26 U S C § 6621) shall be computed in accordance with Florida
Steel Corp 231 NLRB 651 (1977)
6 Although the General Counsel relied on this theory the judge essen
tially found it unnecessary to pass on the theory in his decision
6 As part of the settlement the Respondent promised it would not dis
cnminatonly lay off employees for engaging in union or other protected
activities and it would not in any like or similar manner interfere with
restrain or oerce employees in the exercise of their Sec 7 rights
291 NLRB No 17
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
March 26 1981 layoffs of Hardison and two other
employees violated Section 8(a)(1) and (3) of the
Act This charge was amended on May 18 1981 to
allege that Hardison s March 1981 layoff violated
Section 8(a)(1) (3) and (4) 7 A complaint issued on
this charge on May 22 1981 By a letter dated July
21 1981 the Acting Regional Director notified the
Respondent that he was setting aside the settlement
in Case 11-CA-9018 because of the subsequent
unfair labor practices revealed by the investigation
in Case 11-CA-9806 A consolidated complaint in
Cases 11 -CA-9018 and 11-CA-9806 issued on July
30 1981
On September 25 1981 the Union filed a third
charge in Case 11-CA-10125 alleging that employ
ee Rickards March 26 1981 layoff violated Sec
tion 8(a)(1) and (3) On November 3 1981 the
Union withdrew this charge because it had not
been timely served on the Respondent 8
On November 16 1981 the Union amended the
first charge in Case 11-CA-9018 to add an allega
tion that Rickards March 1981 layoff violated Sec
tion 8(a)(1) (3) and (4) The outstanding consoli
dated complaint in Cases 11 -CA-9018 and 11-CA-
9806 was amended on November 20 1981 to add
an allegation about Rickards 1981 layoff The
heanng was held on January 19 and 20 1982
The Board and the courts have traditionally al
lowed the General Counsel to add complaint alle
gations outside the 6 month 10 (b) period if they
are closely related to the allegations of a timely
filed charge The judge here found that the allega
tion about Rickards March 1981 layoff was prop
erly added to the complaint because it was closely
related to the allegations of the timely charge in
Case 11-CA-9806 concerning Hardison s March
1981 layoff In finding the allegations closely relat
ed, the judge noted that both employees were laid
off at the same time and place by the same top su
pervisor and for similar if not the same reasons
We agree with the judge that the allegations
about the two March 1981 layoffs are closely relat
ed under the traditional Board test described in
Redd I Inc supra Rickards layoff occurred
within 6 months before the filing of the timely
charge concerning Hardison s layoff Further the
allegation concerning Rickards layoff is of the
same class as the allegation in the timely charge
concerning Hardison s layoff because both allega
tions involve layoffs in retaliation against union ac
° The judge found that the charge and amended charge in Case 1I-
CA-9806 specifically referred only to the 1981 layoff of employee Har
dison and did not refer to the 1981 layoff of employee Rickard No ex
ceptions to this finding were filed
tivities and against giving testimony at the same
unfair labor practice hearing in violation of Section
8(a)(3) and (4) Finally both layoff allegations arise
from the same or similar factual situation or se
quence of events Thus both layoffs occurred on
the same day at the same construction site during
the same reduction in force and under similar cir
cumstances and were approved by the same overall
supervisor who ordered the reduction in force
Although the Respondent gave different reasons
for selecting each employee to be laid off the
judge discredited these reasons as pretexts and
found the Respondent selected both employees for
layoff based on the same unlawful motive 9 Fur
ther the judge found that both employees had been
laid off together the year before for the same un
lawful motive and were the only two employees
who had testified against the Respondent at the
Board hearing resulting in a settlement of Case 11-
CA-9018 just 2 months before their 1981 layoffs
Therefore both allegations involve similar conduct
during the same time period with a similar object
as required under our Redd I test
In addition we find that Rickards March 1981
layoff is closely related to the allegations in the
timely charge in Case 11-CA-9018 concerning his
earlier layoff The usual test for finding new allega
tions closely related requires that the new events
alleged must have occurred within 6 months before
the filing of the timely charge However the Su
preme Court specifically held in Fant Milling10
that Section 10(b) does not preclude the Board
from adding new allegations to a complaint based
on events that occurred after a charge was filed
even though no new charge has been filed The
Court stated there that the Board could properly
add such new allegations if they were related to
the conduct alleged in the timely charge and devel
oped from that conduct while the charge was
pending before the Board 11 The Court stated fur
ther that the 6 month limitation period in Section
10(b) extinguishes liability for unfair labor prac
tices committed more than six months prior to the
filing of the charge It does not relate to conduct
subsequent to the filing of the charge 12 Finally
9 We see no reason why we should rely on a respondents unproven
characterization of its reasons for a discharge in ruling on whether cer
tam allegations are closely related Even in cases where such a ruling is
based on the bare pleadings we would rely on whether the allegations
show the same object because it is in a respondents interest to state a
pretextual reason to mask any unlawful conduct at that stage of the pro
ceedings Furthermore if we find a heanng is warranted on allegations
that appear to be closely related the respondent can still present evi
dence on this issue at the heanng We would certainly not rely on a re
spondent s proffered reasons where as here a judge has already rejected
them as pretextual after hearing all the evidence
8 We do not consider the withdrawal of this charge relevant in decid 10 NLRB V Fant Milling Co 360 U S 301 (1959)
ing whether Rickards 1981 layoff allegations are closely related to the 11 360 U S at 307
other two pending charges Redd I Inc 290 NLRB 1114 (1988) 12360US at 309 fn 9
DAVIS ELECTRICAL CONSTRUCTORS
the Court quoted the following language from its
decision in National Licorice as the standard for al
lowing later allegations to be included under a
pending charge not specifically mentioning these
new allegations
All are of the same class of violations as those
set up in the charge and were continuations of
them in pursuance of the same objects The
Board s jurisdiction having been invoked to
deal with the first steps it had authority to
deal with those that followed as a consequence
of those already taken 13
Applying that standard here we find that the al
legation about Rickards second layoff is closely re
lated to the allegation about his earlier layoff The
allegation about Rickards March 1981 layoff is of
the same class as the allegation about his 1980
layoff because both allegations involve layoffs in
retaliation against union activities in violation of
Section 8(a)(3) Further the second layoff is a con
tinuation of the first layoff in pursuance of the
same object Thus the judge found that the Re
spondent used the same pretextual reason to select
Rickard for layoff on both occasions that Rickard
had testified at a Board hearing against the Re
spondent about his 1980 layoff just 2 months before
his second layoff and that the Respondent had ex
pressed animus toward the employees pursuit of a
Board remedy for their 1980 layoffs 14
In conclusion in agreement with the judge we
find under the standard enunciated in Redd I that
the allegation concerning Rickards 1981 layoff is
closely related to the charge in Case 11-CA-9806
Additionally we find pursuant to the doctrine
enunciated in Fant Milling that Rickards 1981
layoff is a continuation of the previous unlawful
conduct toward Rickard alleged in his earlier
charge in Case 11-CA-9018 Therefore we adopt
the judge s finding that Rickard s 1981 layoff vio
lated Section 8(a)(1) (3) and (4) of the Act
ig 360 U S at 307 citing National Licorice Co. v NLRB 309 U S 350
369 (1940)
i* Member Cracraft notes that the Board is setting aside the settlement
agreement in Case I1 -CA-9018 involving the 1980 layoffs because of
the Respondents later unfair labor practices in Case I I-CA-9806 involv
ing the 1981 layoffs Traditionally the Board only vacates a settlement if
later events show that there has been a breach of the agreement or a later
independent unfair labor practice Wallace Corp v NLRB 323 U S 248
254 (1945) Soule Glass & Glazing Co v NLRB 652 F 2d 1055 1108-1109
(1st Cir 1981) However the later independent unfair labor practice must
be similar or related to the unfair labor practice involved in the settle
ment to warrant vacating the agreement Deister Concentrator Co 253
NLRB 358 359 (1980) Gulf States Mfm v NLRB 598 F 2d 896 903-904
(5th Cir 1979) See also Sheet Metal Workers Local 80 (Sise Heating) 236
NLRB 41 42 (1978) Thus by setting aside the settlement here Member
Cracraft concludes that the Board is necessarily finding that the allega
tions concerning the 1981 layoffs are related to the allegations concerning
the 1980 layoffs
ORDER
117
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Davis Electrical Constructors Inc
Leland North Carolina its officers agents succes
sors and assigns shall take the action set forth in
the Order as modified
I Substitute the following for paragraph 2(a)
(a) Offer Elwood Hardison and Charles P
Rickard immediate and full reinstatement to their
former jobs or if those jobs no longer exist, to sub
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and make them whole for any loss
of earnings and other benefits suffered as a result of
their discharges of March 26 1981 less any net in
tenm earnings plus interest in the manner set forth
in the remedy section of the decision
2 Substitute the attached notice for that of the
administrative law judge
CHAIRMAN STEPHENS concurring
I concur in my colleagues conclusion that the
General Counsel should be permitted to litigate
Rickards 1981 layoff but I do so only on the
ground that his 1981 layoff was properly added by
amendment to the charge in Case 11-CA-9018
which was the subject of a settlement In this
regard I note that (1) the settlement agreement
was properly set aside on the basis of unfair labor
practices alleged in charges whose timeliness is not
disputed (2) the setting aside of that settlement re
sulted in the reinstatement of the charge covering
Rickards 1980 layoff and (3) for reasons set forth
in the majority opinion Rickards 1981 layoff is
closely related to that charge As my colleagues
also explain under NLRB v Fant Milling Co 360
US 301 (1959) a respondent can without the
filing of a new charge be held liable for conduct
that occurs after the conduct alleged in a pending
charge and that is related to that charge
Although as my dissent in Redd I Inc 290
NLRB 1114 (1988), makes clear, I differ with my
colleagues as to the significance to be attached to
the dismissal or withdrawal of charges involving
conduct that is the subject of a later attempted ad
dition to a case on a relation back theory I do not
find that the Union s withdrawal of a charge con
cerning Rickard in November 1981 leads to the
same conclusion that I reached in Redd I Here the
Union withdrew the charge because service was
mistakenly believed to be untimely i e I day
beyond the 6 month period beginning with Rick
and s 1981 layoff But that withdrawal gave no hint
that the merits of the charge might have been scru
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tinized and found wanting and the General Coun
sel was clearly left with the option under Fant
Milling of adding Rickards 1981 layoff to the
complaint under the coverage of the 1980 charge
that the Respondent knew was pending by virtue
of the setting aside of the settlement agreement
Consequently the circumstances here are signifi
cantly different from those in Redd ! and allowing
the litigation of Rickards 1981 layoff does not in
my view pose any threat to the policies underlying
Section 10(b)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
their seniority or any other rights or privileges pre
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their layoff of March 26 1981, less any net
interim earnings plus interest
WE WILL rescind two wntten February 24
1981 unlawful reprimands to Elwood Hardison
and remove from our records all memoranda or
reference thereto as well as the unlawful layoffs of
Hardison Rickard and Gene Townsend in 1980
and of Hardison and Rickard in 1981 and will
notify each of them in writing that this has been
done and that evidence of these unlawful layoffs
and reprimands will not be used as a basis for
future personnel actions against any of them
DAVIS ELECTRICAL CONSTRUCTORS
INC
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
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge layoff or issue unlaw
fully motivated reprimands or otherwise discrimi
nate or retaliate against any employee because he
engages in activities on behalf of or supports North
Carolina State Building & Construction Trades
Council AFL-CIO or any other labor organiza
tion or because he testifies at a hearing of the Na
tional Labor Relations Board or because he en
gages in concerted activities protected by Section 7
of the National Labor Relations Act
WE WILL NOT create the impression among our
employees that their union activities are under our
surveillance or threaten our employees with dis
charge or that they would not work again for us or
any other employer in an effort to discourage their
support of the Union or any other labor organiza
tion
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 Elwood Hardison and Charles P
Rickard immediate and full reinstatement to their
former jobs or if those jobs no longer exist to sub
stantially equivalent positions without prejudice to
Pars Favors Jr Esq for the General Counsel
Robert T Thompson Jr Charles E Feuss and Michael P
Fisher Esqs (Thompson Mann & Hutson) of Green
ville South Carolina for the Respondent
L F Shipman Coordinator of Charlotte North Caroli
na for the Charging Party
ROBERT W LEINER Administrative Law Judge This
consolidated matter was tried before me on January 19
and 20 1982 in Wilmington North Carolina on the
General Counsels third amended consolidated complaint
and notice of hearing dated November 20 1981 and Re
spondent s (Davis Electrical Constructors Inc) timely
answer dated December 2 1981 The consolidated com
plaint consists of two sections of allegations various alle
gations of violation of Section 8(a)(1) of the National
Labor Relations Act occurring in mid March 1980 to
gether with violation of Section 8(a)(3) and (1) of the
Act on March 20 1980 in the alleged unlawful termina
tion of four named employees (Hardison Townsend
Rickard and Watkins) The complaint also alleges the
further unlawful termination of two of these same em
ployees (Hardison and Rickard) on March 26 1981 Re
spondent admitted various allegations of the consolidated
complaint denied others and denied the commission of
any of the alleged unfair labor practices
At the hearing all parties were given full opportunity
to call and examine witnesses submit oral and written
evidence and argue orally on the record At the conclu
sion of receipt of all evidence the parties waived final
oral argument and submitted timely posttrial briefs that
have been carefully considered
On the record as a whole including my observation of
the demeanor of the witnesses and consideration of the
arguments and briefs of counsel I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I RESPONDENT AS EMPLOYER
The complaint alleges Respondent admits and I find
that Respondent Davis Electrical Constructors Inc a
DAVIS ELECTRICAL CONSTRUCTORS 119
South Carolina corporation is licensed to do business in
the State of North Carolina where it engages in the buss
ness of electrical subcontracting including such subcon
tracting at the Cape Fear Dupont Plant in Leland North
Carolina At that facility in the 12 month period preced
ing December 1981 Respondent received for use in exe
cuting its electrical subcontract goods and products
valued in excess of $50 000 which were received from
points directly outside the State of North Carolina Re
spondent concedes that at all material times it has been
and is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act I so find
II THE LABOR ORGANIZATION INVOLVED
Respondent concedes and I find that the Charging
Party North Carolina State Building & Construction
Trades Council AFL-CIO (the Union) is a labor organs
zation within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Pleadings and Background
The consolidated amended complaint alleges inter
alia that electricians Hardison Townsend Richard and
Watkins Respondents employees were unlawfully ter
minated on March 20 1980 Whereas Townsend and
Watkins on this record never worked again for Respond
ent Respondent rehired Hardison on July 15 1980 and
Rickard was rehired on May 12 1980
It is admitted that the Charging Party filed a charge in
Case 11-CA-9018 on March 26 1980 served on Re
spondent on March 27 1980 and filed an amended
charge on May 6 1980 served on Respondent on May 7
1980 It is not disputed that the charge and amended
charge in that case legally supported the issuance of
complaint relating principally to the alleged violations of
Section 8(a)(1) and (3) of the Act in the March 20 1980
terminations of the above four named employees
Respondent admits as alleged that on January 8 1981
a hearing was opened before Administrative Law Judge
Bernard Ries and that Respondent and the Union to
gether with the Regional Director entered into a settle
ment agreement approved on January 8 1981 by Judge
Ries which as the complaint shows provided inter alia
that Respondent would not engage in various alleged
acts of independent violation of Section 8(a)(1) and most
particularly would not thereafter discrimmatonly lay off
employees for engaging in union activities that Respond
ent would make whole all four employees and noted that
these employees did not desire reinstatement to their
former jobs The settlement agreement also provided
against Respondent in the future engaging in any like or
similar acts that would interfere with restrain or coerce
employees in the exercise of Section 7 rights Thereafter
on April 1 1981 counsel for the General Counsel on
the Regional Director having found that Respondent
complied with the settlement agreement filed with
Judge Ries a motion to withdraw the complaint and
close the hearing in Case 11-CA-9018 On April 8 1981
Judge Ries granted the motion to close the hearing and
to withdraw the complaint
On July 21 1981 by letter the Acting Regional Di
rector for Region 11 notified Respondent that he was
setting aside the settlement agreement because of alleged
violation of the settlement agreement disclosed in an in
vestigation following the filing of a subsequent charge in
Case i 1-CA-9806 Respondent admits that the charge in
Case 11-CA-9806 was filed and served by the Union on
April 7 1981 with an amended charge in the same case
filed and served on May 18 1981 The charge and
amended charge in Case 11-CA-9806 referred only to
the May 26 1981 termination of employee Elwood Har
dison but did not refer to any similar termination of em
ployee Rickard
On September 25 1981 the Union in Case 11-CA-
10125 filed a charge alleging the unlawful March 26
1981 termination of Rickard but on November 3 1981
withdrew this charge because it was untimely filed under
Section 10(b) of the Act Lastly on November 16 1981
the Union filed a second amended charge in Case 11-
CA-9018 alleging the same allegations as appeard in the
untimely and subsequently withdrawn charge (Case 11-
CA-10125) i e the unlawful termination of Rickard On
November 20 1981 the Regional Director issued the in
stant third amended consolidated complaint which on
the apparent basis of the second amended charge in Case
11-CA-9018 included as an alleged violation of Section
8(a)(3) and (1) the March 26 1981 termination of Rick
and
On December 8 1981 prior to opening of the hearing
Respondent filed a motion for partial dismissal of the
third amended consolidated complaint on the ground
inter alia that in substance the Regional Director im
properly issued the complaint regarding Rickard because
the Regional Director was doing indirectly what he was
forbidden by Section 10(b) of the Act from doing direct
ly On December 30 1981 I issued an order' denying
Respondents motion for partial dismissal principally on
the ground that the Regional Directors inclusion of the
Rickard discharge need not be supported by the second
amendment to the charge in Case 11-CA-9018 (that Re
spondent argues was merely an untimely attempted eva
sion of Sec 10(b) of the Act) because the Charging
Party s charge of April 7 1981 alleging the unlawful ter
mination of Hardison in Case 11-CA-9806 supported
the issuance of complaint with regard to the Rickard dis
charge that occurred at the same place at the same time
and under similar circumstances I concluded that the in
stant complaint could lawfully include the Rickard alle
gation since it was closely related to the Hardison dis
charge timely included in Case 11-CA-9806 Gocat Inc
257 NLRB 208 (1981) cf NLRB v Fant Milling Co 360
U S 301 (1959) NLRB v Dinion Coil Co 201 F 2d 484
491 (2d Cir 1952) NLRB v Central Power Light Co 425
F 2d 1318 (5th Cir 1970) Exber Inc v NLRB 390 F 2d
127 (9th Cir 1968) I also rejected Respondents argu
ments that the April 8 1981 settlement approved by
Judge Ries was a complete defense because no Order
was secured from Judge Ries or indeed from any ad
t
I I have included the full text of this December 30 1981 Order togeth
er with Respondents motion and the General Counsels opposition (AU
Exh 1) for convenience of the parties and the Board
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ministrative law judge to reopen the otherwise closed
case and that the two discharges were so disparate as to
prevent the joinder of the Rickard discharge with the
Hardison discharge Lastly I rejected Respondents ar
gument that the Regional Director was required as a
condition precedent to setting aside the settlement and is
suance of complaint to return any moneys paid to the
alleged discnminatees in order to restore the status quo
ante At the hearing I reaffirmed my pretrial order2 on
the ground that Respondents renewal of its motion for
partial dismissal failed to show facts that would demon
strate that the Rickard termination of March 26 1981
was not so closely related as to permit the joinder of
new matter otherwise barred by Section 10(b) of the
Act with matters primarily included in the Hardison
complaint 8
It is undisputed that for at least 10 years Respondent
Davis Electrical Constructors Inc has been the electn
cal subcontractor to general construction contractor
Daniel Construction Co Inc a Division of Daniel
International Corporation (Daniel) at a Dupont produc
tion facility in Leland North Carolina This fiber manu
factunng facility requires considerable new construction
maintenance and repair work All employees in the con
struction crafts and trades at the site are Daniel employ
ees (carpentry pipefitting masonry etc) with the excep
tion of the electrical employees who are employees of
Respondent The business and labor relations relationship
of Daniel and Respondent is not fully disclosed on this
record but contrary to Respondents assertions made at
the hearing the testimony of Respondents job supenn
tendent J W Baxley demonstrates that Daniel ordman
ly participates directly in and controls the hiring of Re
spondent s employees in the electrical trade It also par
ticipates in Respondents discharge procedures and labor
Respondents posttnal brief requests a reversal of my conclusions in
my December 30 1981 Order The December 30 1981 Order by its
terms permitted Respondent the opportunity at the hearing to prove
that the March 26 1981 Rickard discharge was not closely related
within the meaning of Gocat Inc supra 257 NLRB 208 and NLRB v
Dinion Coil Co supra 201 F 2d 484 491 to the matters alleged in the
timely Hardison charge in Case I1-CA-9806 Respondent failed to
adduce evidence to the contrary Since it appeared at the hearing that
both employees were terminated at the same time and place from the
same construction site by the same top supervisor for similar if not the
same reasons advanced by Respondent I hereby reject Respondents fur
ther requests for reversal and reaffirm the dispositions in the December
30 1981 Order regarding all matters there particularly the inclusion in
the complaint of the Rickard discharge allegation and the right of the Re
gional Director to bring before the Board matters occurring subsequent
to a judge approved closing of a settled case so that I in the first in
stance and thereafter the Board may decide whether the settlement
should be set aside under Wallace Corp v NLRB 323 U S 248 (1944)
As noted below two sets of unfair labor practices are closely if not inti
mately connected rendering nugatory the intervening settlement agree
ment since Hardison and Rickard discharged unlawfully by Respondent
in 1980 were again discharged unlawfully in 1981 Thus not only was
the settlement agreement prohibition against future discnminatory layoffs
directly violated but Respondent unlawfully again acted against two of
the same employees Respondent s citation of Gulf States Mfrs Inc v
NLRB 598 F 2d 896 (5th Cir 1979) is not to the contrary
s To the extent that my order of December 30 1981 recited that on
May 18 1981 the Union amended its charge in Case 11-CA-9018 to
allege the unlawful discharge of Rickard it is corrected so that the
proper date for that amendment regarding Rickard is November 16 1981
Thus it was on November 16 1981 that Respondent filed a second
amended charge in Case I I-CA-9018
relations Thus Daniel s labor relations department at the
Leland North Carolina site maintains all records for
Davis and does the interviewing and actual clearance for
hiring after the job superintendent (Baxley) recommends
the hiring of a specified number of additional electrical
employees (Tr 514) That Respondents supervisors only
occasionally interview the job applicants supports Dan
iel s general regular control of hiring (Tr 512) 4
The chief Daniel supervisor at the jobsite is Charles
Garrett In 1980 the chief respondent supervisor over all
electrical work at the jobsite was J W Baxley Under
Baxley in 1980 Respondent placed two electrical gener
al foremen Ted Box and J W Hammonds
The Dupont production operation consisted substan
tially of two parts the production of fibers (known on
this record as fiberside ) and the production of the or
ganic chemical di methyl toluene (known on this record
as DMT) These two Dupont production functions were
paralleled by Respondent in the assignment of its two
general foremen Box was a general foreman over DMT
operations Hammonds was general foreman on the fi
berside Each of the general foremen supervised the ac
tivities of about a half dozen foremen admittedly statuto
ry supervisors each of whom often had a crew of 8 to
10 electricians and helpers The record shows that Re
spondent engaged in numerous transfers between crews
under foremen working on the fiberside and from time
to time laid off and hired employees depending on
workload Among these foremen were Howard Ran
some Kermit Graham Gordon Powell Ronnie Dorsett
Jay Kraynick and Johnny Baxley son of Respondent s
electrical superintendent J W Baxley who became a
foreman in 1980
Regarding Respondents personnel requirements the
ordinary practice is for Dupont and Daniel to meet each
Wednesday with Respondents superintendents and other
craft supervisors At that time Dupont and Daniel out
lined the amount of anticipated work for the following
week and thereafter In the Dupont and Daniel premises
Daniel maintained a blackboard chart showing the
number of employees including general foremen and
foremen of each craft at the jobsite including the elec
trial craft and demonstrated that as of March 25 1981
Respondent employed a total of 124 electricians includ
ing 15 general foremen and foremen with 58 electricians
being assigned to the DMT side and 35 to the fiberside
Sixteen electricians were assigned to other duties in that
week
In any event each Wednesday Dupont notified the
superintendents of each of the trades including Respond
ent of the expected workload for the following week
This permitted Respondents superintendents to decide
on the number of employees necessary to execute its var
sous long term and short term electrical work orders and
* The person passing on the ability and technical qualifications of elec
tncians to be hired by Respondent was not a respondent supervisor but
the Daniel labor relations representative This person was neither an elec
trical engineer nor a qualified electrician and judged the applicants tech
nical qualifications from the face of the application (Tr 515-516) The
General Counsel refrained from alleging Daniel to be joint employer of
Respondents employees and I do not pass on the issue
DAVIS ELECTRICAL CONSTRUCTORS
projects Either later on the same Wednesday or on the
succeeding Thursday morning Respondents DMT and
fiberside superintendents in turn held meetings with
their general foremen who were told of the need to
either hire or lay off electricians In the case of layoffs
the general foremen were directed by the superintend
ents to submit the names of employees who should be se
lected for layoffs Later on the same Thursday the gen
eral foremen called together their subordinate foreman
and arrange for the number of employees to be laid off
The practice vanes regarding how the names are select
ed on some occasions the general foreman on the basis
of his long experience and knowledge of the work of in
dividual electricians selects the employees to be laid off
on other occasions the general foreman solicits names
from individual foremen In either case it is the general
foreman who validates the selection of the electricians
for layoff Supervisor Hammonds testified that the super
intendent has veto power over the selection of any em
ployee on layoff list It is also not unknown for employ
ees selected for layoff to be transferred to crews whose
workload increased Respondents witnesses testified and
I find that well regarded employees were sometimes laid
off under the above circumstances
B The Employees March 16 Attendance at5 McCrae
Park March 17 Impression of Surveillance
By March 1980 Charles P Rickard Gene Townsend
and Elwood Hardison were journeymen electricians
each employed by Respondent for about 7 or more years
excluding intermittent layoffs and rehinngs due to lack
of work In March 1980 they were employed on the fi
berside and worked under Foreman Gordon Powell in a
total crew of seven electrical employees Although there
is conflicting testimony even among the General Coun
sel s witnesses regarding the desirability of working on
the fiberside as opposed to working on DMT at least
Hardison suggested that working on the fiberside was
preferable because working at DMT required consider
able outdoor work during the hot summers and cold
winters Nevertheless the record shows that almost half
of the electricians worked at DMT and in addition
some employees found DMT more desirable The Powell
crew consisted of four journeymen electricians (Har
dison Rickard Townsend and Storms) In addition
there was a welder (Chauncey) a top helper (Knox
Jacobs) and two helpers (Benton and Long) Powell s
general foreman was J W Hammonds and Hammonds
reported to Superintendent J W Baxley
Although it is true that a prior Settlement Agreement may be set
aside because of later unfair labor practices Wallace Corp v NLRB
supra it is practical to state and analyze the facts chronologically and to
ultimately determine whether the Respondents actions following the set
dement are of a quality sufficient to either violate the terms of the settle
ment itself or are of such a continuing nature as to render it valueless
Although a settlement ordinarily precludes use of evidence of events
prior thereto such presettlement evidence is admissable to establish
motive for postsettlement conduct Joseph s Landscaping Service 154
NLRB 1384 (1965) enfd sub nom NLRB v Northern California Hod
Carriers 389 F 2d 721 (9th Cir 1968) Hence the utility of a chronologi
cal statement of events starting in 1980 rather than a preliminary analy
sis in vacuo of 1981 events and their application to presettlement 1980
events
121
On or about March 13 1980 Daniel employees at a
nearby jobsite known as the Hercofina (10 miles from
Leland) jobsite walked off the job to protest Daniel
working conditions and pickets from the Hercofina site
told Rickard (and apparently newspapers and other
media also stated) that there would be a 2 p in meeting
on Sunday March 16 1980 of area construction employ
ees and union representatives at the Hugh McCrae Park
a public recreation area in nearby Wilmington North
Carolina
Rickard Townsend and Hardison who reside in
Leland went together to attend the meeting They found
approximately 150 to 200 people present at the meeting
Employees from the Hercofina plant asked for a show of
hands whose employees were present Among others
present were Daniel employees employed at three plants
A union representative (Ray Schnell) told employees
that they should all return to work but organize commit
tees and get together with union officials to have a
union Union representatives then handed out building
trade union membership application cards Rickard and
Hardison signed union cards
Present at the meeting were newspaper reporters and
television cameramen from local Wilmington North
Carolina television stations Rickard Hardison and
Townsend were photographed by the television camera
men and they saw themselves either that evening or the
next morning before reporting to work on local televi
sion broadcasts Rickard was shown accepting a union
card from a union representative Respondents supervi
sors saw the television broadcasts showing all three of
these employees on television and their presence at the
union meeting and their television appearances were dis
cussed the next day (Monday March 17 1980) by super
visors and respondent employees
On Monday March 17 1980 at 7 a m when Rickard
Townsend and Hardison reported to work at the Gro
Mor but (a housing area where Respondents foremen
distribute work assignments where the employees eat
lunch and where Foreman Gordon Powell maintained
his office) the other employees in the crew told them
that they saw the fours of them on television Powell
told them I have some celebrities in my crew Rick
and testified that he saw himself Townsend and Har
dison on the 11 o clock news that Sunday night Re
spondent concedes that Respondent knew that at least
Townsend and Hardison were seen (Br 29) I conclude
that Hardison Townsend and Rickard were seen by Re
spondent and Daniel in view of Supervisor J W Bax
ley s admission '
6 Jesse P Watkins alleged as a discriminatee who along with Har
dison Rickard and Townsend was terminated on March 20 1980 did
not appear or testify at the hearing His failure to appear was unexplained
by the General Counsel
7 Baxley testified (Tr 519-521) that while he saw Hardison and Town
send on TV other supervisors saw Rickard (Tr 521) He discussed the
Sunday McCrae Park incident with Daniel Project Manager Garrett at
the Monday morning Daniel Davis supervisor meeting convened to hear
how they should deal with the union situation and what the law was I
was not favorably impressed by Vaxley s preliminary denial and then ad
mission that he spoke to Garrett about the McCrae Park incident and I
do not believe that the conversation was as short as Baxley suggested
Continued
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later in the morning of March 17 about 9 a in Dan
iel s supervisors including Project Manager Charles Gar
rett had a meeting inter alia with all of Respondent s
superintendents foremen and general foremen relating
to union activities of the day before and Respondents re
sponse Among the visitors addressing the Davis and
Daniel supervisors was one Joe Virgil (the spelling is
consistent with the transcript although I heard the name
Virdon ) from Greenville South Carolina who told
the assembled supervisors of their rights in speaking to
employees and what they were prohibited from doing
including interrogating them concerning their union ac
tivity Whereas Superintendent J W Baxley who saw
both Hardison and Townsend on television on the day
before the supervisor meeting i e on Sunday March 16
testified at first that he did not speak to Garrett about
seeing Hardison and Townsend on television he later
testified that he did speak to Garrett concerning the tele
vision appearances of Hardison and Townsend and also
said that other supervisors told him that they had seen
Rickard on the television screen Rickard testified that
on March 17 after Respondents labor relations repre
sentative Virgil met with the Respondent and Daniel
supervisors he came to the work area and asked the em
ployees whether anybody had any complaints or gripes
that he wanted to talk to Virgil about 8
Hardison testified that a half hour to an an hour after
he reported for work on Monday and the employees and
Foreman Powell joked about Hardison and other em
ployees appearance on television he saw Superintendent
J W Baxley in the shop while Hardison was getting
parts and materials According to Hardison Superintend
ent Baxley said to him I heard you attended a little
meeting this weekend Supervision has the names of the
people who attended the meeting Hardison said that he
said nothing and left Baxley not only denies any such
conversation but denies meeting Hardison at that time or
any other time when such a discussion took place
Rather he testified that he was occupied all morning
with showing Respondents visitors from Greenville
South Carolina around the installation Although my ob
servation of Hardison permits the conclusion that he was
quite capable of exaggeration I nevertheless credit his
version in view of circumstances relating to the credibil
ity of J W Baxley noted above and to be discussed
later As already noted I was unfavorably impressed
with his testimony In short I credit Hardison s version
over Baxley s denial and find that Baxley made this state
ment ( I heard you attended a little meeting this week
end Supervision has the names ) and that such state
(Tr 521) I was even more unfavorably impressed with other matters
discussed below including his inability to square why he failed to seek
out Garrett to rehire Hardison if his motivation was personal sympathy
for Hardison until Hardison withdrew his unfair labor practice charges
8 Although on Respondent s motion I struck Townsend s testimony
on the same point Rickards testimony remained in the record The Gen
eral Counsel did not allege Virgil s activities as a violation of the Nation
al Labor Relations Ac and did not seek to amend the complaint to allege
Respondents unlawful solicitation of grievances Neither did he request
that a finding be made on such conduct Under such a state of facts I
hesitate to draw the legal conclusion The above recitation therefore is
merely to show a sequence of events re ating to employee union activities
and Respondents response
ment as alleged in the complaint par 8(b)) constitutes a
violation of Section 8(a)(1) of the Act because it creates
the unlawful impression that the employees union activi
ties were under Respondents surveillance The vice of
the statement is not that they were observed but that
their names and the names of other employees at
McCrae Park were recorded by Respondent Respondent
cannot be faulted for having merely observed them on
TV or mentioning that fact
C March 18-Threat of Discharge
About 1 to 2 p in on March 18 1980 1 day after the
Monday March 17 meeting of Daniel and Respondent
supervisors with Joe Virgil from Greenville concerning
prohibitions against interference with employee union ac
tivities Foreman Powell told Hardison according to
Hardison that Powell had been to a foremen s meeting
with Daniel Project Manager Garrett and that Garrett
at the meeting said that if he caught three or more
people together they would be terminated Powell also
allegedly told him that at the meeting laywers had
come from Greenville and told the supervisors what
rights they had regarding employees talking about the
Union on worktime Hardison also said that this latter
statement was made on the same or next day that Powell
told him about Garrett s statement at the meeting
Powell denies making any such statement to Hardison on
or about March 17 or 18 1980 although Powell admits
having gone to the meeting Although I draw no infer
ence unfavorable to Respondent from its failure to
produce Garrett a dominant if not controlling figure in
Respondents labor relations to testify that he made no
such remark at the meeting since it is Powell s remark
not Garrett s which is coercive I nevertheless credit
Hardison s version over Powell s denial based on my ob
nervation of Powell and Hardison as witnesses the
timing of the alleged conversations Powell s presence at
the meeting and my impression that in this particular re
spect at least Hardison was a truthful witness and
Powell was not Thus I find as alleged in paragraph 8(c)
of the complaint that on or about March 18 in violation
of Section 8(a)(1) Powell told of a threat of discharge
against employees if they were found in a group of three
or more and that the context of the threat demonstrates
a desire to discourage their support for the Union Such
a Daniel threat was unlawful to a Davis employee when
relayed by a Davis supervisor
D The Layoffs of March 20 1980
The workweek among the Respondents employees at
the Dupont worksite is a 4 day week Monday through
Thursday 10 hours a day 7 a in through 5 30 p in
On Thursday March 20 1980 the Powell crew was
eating in the Gro Mor hut at the lunchbreak between 12
and 12 30 p in Foreman Gordon Powell told them that
General Foreman J W Hammonds had called and
wanted a meeting with Rickard Townsend Hardison
and Powell in Powell s office at 2 p in When Townsend
and Rickard went to work and then i eturned to the
office about 1 50 p in they found Hardison already in
Powell s office but Hammonds had not yet arrived Har
DAVIS ELECTRICAL CONSTRUCTORS 123
dison testified that when he entered Powell s office about
1 45 p in (5 minutes before Townsend and Rickard ar
rived) Powell said that he knew nothing about the meet
ing and that when Hammonds called him at lunch he
told him that he wanted to meet with Powell regarding
the diminution of work the necessity of a reduction of
force and Hammonds decision to layoff three employ
ees Powell also testified that he and Hammonds had pre
viously been talking about the diminution of work but
said that there had been no conversation regarding a
layoff or who would be laid off
Powell said that at 2 p in he went out into the work
area and told the three employees that Hammonds
wanted to speak to them and to Powell Rickard Har
dison and Townsend all testified that it was at the lunch
break that Powell told them that Hammonds wanted to
speak to them Powell s recollection is not entirely accu
rate since he did not go out to the work areas to get the
three employees together since it is clear on this record
that Hardison was in the office with him alone prior to
the other employees coming in 5 minutes later Thus
they never appeared as a group in the office but Har
dison was there first I therefore credit the three employ
ees over Powell s recollection and find that Powell told
them that Hammonds wanted to meet them and told
them this during the lunchbreak 9
The record shows that Townsend and Rickard were
working in the power house on the fiberside under
Powell and that Hardison was working elsewhere on the
fiberside and that they were installing conveyor limit
switches photo cells and motor controls
About 2 p in Hammonds came to Powell s office in
the Gro Mor hut Prior to his arrival Hardison was
there alone with Powell Hardison testified that Powell
told him that he did not know what it was all about and
I credit Hardison s testimony that Powell did say this In
fact however by virtue of Powell s prior lunchtime con
versations with Hammonds Powell knew that the sub
ject matter of the anticipated Hammonds conversation
had to do with layoffs When Hammonds walked in
Hardison asked him Is it DMT or 0 U T ? 10 Ham
monds answered that he was sorry but that they were
being laid off Hardison asked why and the testimony be
comes contradictory According to Rickard and Har
dison Hammonds told them that the publicity had
done them in (Rickard) Hardison recalled Hammonds
saying that the news media and television coverage had
paid off All three of the discriminatees testified that
Hammonds said that neither he nor Powell had anything
to do with the layoff but that in substance their hands
were tied and the decision to lay them off had come
from higher supervision The further testimony is sub
stantially without contradiction that Hammonds told
9 I also do not credit Powell s recollection that when he went out to
get Townsend Townsend told him that he knew what it was about that
it was DMT or 0 U T As is noted above in the text the credible testi
mony is that while Hardison made this statement he did not make it to
Powell out in the field but made it to Powell and Hammonds in the
office sometime later
10 As above noted some of the employees including Hardison consid
ered the outdoor work in the chemical production area of the plant to be
less desirable than where they were working on the fiberside
them that he would do anything in his power to see if
they could get jobs and offered to call an old acquain
tence at nearby Yeargen Construction Corporation to see
if they could be placed there To the extent that Rickard
recalls Hammonds seeking to get them jobs in Virginia
or South Carolina his recollection is not credited
The three employees were given layoff slips signed by
office personnel and other employees of Daniel Ham
monds told all three of them that they were good work
ers when he laid them off Hammonds encouraged Har
dison to file an application for further employment
Hammonds testified that in a meeting called by the
then sole superintendent J W Baxley on or about
March 20 1980 Baxley told his two general foremen
Ted Box and J W Hammonds that there would have
to be three layoffs in each of their departments (i e in
Hammonds fiberside and in Box s DMT) When that
meeting ended at lunch Hammonds called Powell at fi
berside He knew that Powell was finishing a job and
told him that he was laying off three persons Rickard
Hardison and Townsend Although it is not an absolute
rule for the foreman to submit to the general foreman the
names of person whom the foreman believes are the least
productive in his crew it is the ordinary practice accord
ing to Respondents witnesses As Respondent observes
(Br 38) although General Foreman Guzzle has overall
approval of his foreman s selections he never predeter
mines who is going to be selected he lets the fore
men make the decision on who whey are going to work
(Tr 528) 11 Here it is uncontradicted that General
Foreman Hammonds contrary to practice told Foreman
Powell the names of three employees to be laid off
There is no suggestion in the evidence that Hammonds
even consulted Powell in the selection Hammonds testi
fled that he picked these three names because Powell
was having trouble with all three although the type of
trouble with each of them was different
1 E Rickard
In the case of Rickard Hammonds testified that Fore
men Powell and Grizzle told him that Rickard had an
attitude problem and that Rickard believed that all of
supervision was out to get him Indeed Hammonds tes
tified that he had worked with Rickard when Rickard
was a helper in 1974-1975 when Hammonds was then
Rickards foreman Hammonds observed Rickard as
having a bad attitude at that time and in particular this
bad attitude manifested itself by Rickard sometimes not
talking to the foreman who assigned him work Ham
monds admitted that Rickard did talk to other foremen
when work was assigned and that with regard to this
bad attitude it did not affect the quality or quantity of
Rickards work which at all times remained good He
also testified that although this bad attitude in fact did
not interfere with the work of other employees it could
interfere with their work and set a bad moral tone both
with the foreman and with other employees Hammonds
also testified that after Rickard was reemployed by Re
i i General Foreman Ted Box similarly testified the foremen submit
the names ultimate decision is the general foremen s v
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent after May 1980 as described below other un
named supervisors complained of Rickards bad atti
tude
Rickard was first hired by Respondent in May 1973
and with several intervening layoffs worked for Re
spondent until March 20 1980 when he was terminated
At his termination his foreman was Gordon Powell and
before that Foreman Kraynick
Powell testified that at or about lunchtime on March
20 Hammonds telephoned him told him of the fact that
work was diminishing requiring a reduction of force
(ROF) and that Hammonds had decided the names of
the three employees to be laid off Hammonds admitted
knowing that Hardison and Townsend had appeared on
television at the Hugh McCrea Park union meeting
About 2 p in the three employees Powell and Ham
monds met in Powell s office the Gro Mor hut Powell
testified that Hammonds came in told the employees
that he was sorry but because of a cutback of work he
had to lay them off Powell testified and Hardison denied
that Hardison then kicked a butt can across the room I
credit Powell s recollection and discredit Hardison s
denial of this act Powell and Hammonds denied that he
said anything about television or the media having
gotten them or doing them in Powell testified and
the three alleged discriminatees denied that Hardison in
response to Hammonds suggestion that he might contact
Yeargen Construction in Southport South Carolina for
work that Hardison then said that that was all right but
that they did not need the job down there because they
were going to see their lawyer in the morning I again
credit Powell s recollection on this latter point Regard
ing the contradictions of whether Hammonds told the
employees at the termination interview that the televi
sion cameras or the media had gotten them or had
done them in I need not resolve that issue although I
would credit Hardison and Rickard if it were necessary
If such statement were indeed made the General Coun
sel s puma facie case would be strong indeed Powell in
any event confirms that the three employees then got
their tool boxes and were accompanied to the gate
where the employees then left Powell testified that after
the employees left he agreed with Hammonds that the
remaining employees on his crew would be more pro
ductive
Regarding the economic basis of the layoff the evi
dence is uncontradicted that the three employees were
working on a major construction project (Traypac)
which after 10-15 months work (Tr 495) was being
completed except for minor adjustments on or about
March 13 1980 Although it was Respondents ordinary
practice to spread the layoff among several crews (at the
time of the layoff Hammonds had Grizzle Powell and
Krayntck as his fiberside foremen with approximately 24
to 30 electricians on their three crews) Hammonds did
not spread it around on this occasion because the Tray
pac job had been completed and the three alleged discri
minatees were working on the Traypac job
It is recalled that Respondent s superintendents regu
larly met with their general foreman on Wednesdays in
order inter alia to plot the job requirements for the fol
lowing week Thus on either March 12 or 13 1980
Hammonds would have met with his foremen to tell
them on those dates and the Traypac job would be
completed that Thursday March 13 There is no show
ing that this normal procedure was not followed
Hammonds testified that Respondent continually re
ceives small work orders and repair orders from Daniel
for electrical work There was no showing of the quanti
ty of work orders and repair orders on hand at the time
of the March 20 layoff but that burden to show that
there was work available for the three discriminatees
whether on the General Counsels shoulders or Respond
ent s shoulders was not met In any event notwithstand
ing the existence of these work orders that the three dis
criminatees might have performed there is no basis on
this record to determine whether there was work avail
able for them I conclude however it is unnecessary to
determine whether as Respondent contends that on
March 20 there was an economic basis for the layoff
notwithstanding Respondent s witnesses testimony that
there were substantial layoffs thereafter on two occasions
in April 1980 For in any event if such a major project
was known to be completed Respondent on this record
failed to show why layoffs were not considered much
less effectuated in the period ending March 13 at the su
pervisors meeting called for that purpose rather than on
March 20 The economic basis of the layoff and particu
larly its timing rests on an unsure footing 12 It becomes
all the more unsure in the face of the intervening March
16 meeting at Hugh McCrae Park Hardison for in
stance worked a Respondent job for 5 years without
being laid off (Tr 196) Respondent failed to prove its
alternate argument that the three discriminatees would
necessarily have been laid off for economic reasons even
if their March 20 selection was unlawful That these su
perior employees would have been chosen in the face of
a work slow down on this record is unproved Certain
ly as late as 1979 when work was very low Hardison
was not laid off (Tr 414)
The question remains however whether in the first
place the selection of the three alleged discriminatees
was unlawfully motivated In this regard Hammonds
admits that he told the three alleged discriminatees that
there were good workers when he laid them off on
March 20 Neither General Foreman Grizzle nor Fore
man Powell both of whom were called to testify on
behalf of Respondent supported Hammonds testimony
that they complained to Hammonds or anyone else re
garding Rickards poor attitude In view of the balance
of the record regarding Rickards performance it would
be doubtful that they would be credited even if they had
12 Further it does not support the credibility of Respondents overall
economic defense for Hammonds to testify (Tr 390) that the three eco
nomically laid off members of Powell s crew (Hardison Rickard and
Townsend) were replaced in the following week (Tr 391) because coin
cidentally work picked up (Tr 389-390) Hammonds was not sure
we probably pulled some completed work orders (Tr 390) Where Re
spondent asserts that transfer into Powell s depleted crew and overtime
work for its members started on the next working day (March 24) after
the three March 20 layoffs only because of the need for emergency main
tenance service (Br 56 Tr 476 et seq) the General Counsel notes that
Powell admitted that the principal transferee worked in Powell s crew
for a month (Tr 483-484) notwithstanding that the emergency was cor
rected in one day (Tr 478)
DAVIS ELECTRICAL CONSTRUCTORS 125
so testified For the record shows that not only Powell
confirmed that the three alleged discnminatees were
good workers from time to time but that Respondent
over the more than 7 years of Rickards employment
never issued a single verbal or written warning to him
under its progressive disciplinary system (Tr 355) Fur
ther it admits that he was at all times a good worker in
terms of the quality and quantity of his work
With regard to his bad attitude the written record
maintained by Respondent speaks loudly on this point
For the General Counsel produced from Respondent s
records (G C Exhs 3-4) two recommendations for pay
advancement and promotion of Rickard in 1973 and 1978
where Respondents appraisal of Rickard is that he was
technically competent and was a dedicated employee 13
In response to these written recommendations and lauda
tory statements concerning Rickards loyalty attitude
technical ability reliability and good faith efforts on
behalf of Respondent Hammonds testified that Rickards
bad attitude commenced only after he became a journey
man i e only after 1978 The bad attitude never mane
fested itself to the extent that any foreman or supervisor
at any time spoke to much less objected to Rickard
concerning this bad attitude It somehow suddenly sur
faced as some sort of inchoate malignant defect inexpli
cably fouling Respondents 5 year unblemished estima
tion of this otherwise exemplary employee Not only
does this evidence not show any credible had attitude on
the part of Rickard but his record is excellent to the
extent of undermining the credibility of all Respondent s
witnesses who testified in support of Rickards bad atti
tude Where neither Supervisor Grizzle nor Powell cor
roborated Hammonds testimony that they complained of
Rickards bad attitude Respondents defense became
futile It is for this reason that I need not and do not rely
on any testimony by Rickard Hardison or Townsend
regarding Hammonds having told them in the termina
tion interview of March 20 1980 that the media or TV
cameras at the Hugh McCrea Park had done them in
or any similar testimony For Rickards attitude and per
formance as an employee on this record are so superior
and so free from criticism as to make Respondents de
18 Respondents witness (Ted Box) testified that employees could not
receive pay raises or promotions without the recommendation of their su
pervisors Rickard started work on May 7 1973 The 1973 recommenda
tion for a pay raise (G C Exh 4) is signed by two foremen McEleveen
and Ted Box The text of this August 29 1973 recommendation is as fol
lows
Mr Rickard has steadily progressed in his work from the very be
ginning He has a keen interest in learning the electrical trade and at
present is doing work far above his pay scale In order to keep men
of this caliber I recommend he be given a raise in pay comparable to
the work he is doing He had not missed a day of work since coming
on the job and is ready to work when called on for overtime His
attitude towards the work is always very positive [Emphasis added t
On March 28 1978 Foreman Ted Box wrote the following concerning
Rickard s work and attitude
C P Rickard has worked here since May 1973 He has worked for
me directly and indirectly over the past 5 years His work as an elec
trician has continued to improve all the time I would like to recom
mend him to topped out to electrician This man has been a real ben
efit to the company He has been a top helper since August 23 1976
His work record has really been good He is also a reliable type
person When we need someone for night or weekend work he has
never turned us down
fense that Rickard was selected for layoff because of a
late blooming bad attitude wholly without foundation
If Respondents own criteria for selection for layoff (pro
ductivity being the most important criterion versatility
and relations with other employees including morale
being the other factors) are examined then Rickard was
necessarily selected for layoff for reasons other than his
attitude and performance Testimony of direct unlawful
motivation in their selection is unnecessary 14
There can be no doubt that Respondents displeasure
in the unionization of its employees was demonstrated
The discharge of an employee shortly after the employer
learned of his union activity as in the instant case with
regard to Rickard may well give rise to an inference
that the discharge was discriminatory NLRB v Campco
Inc 369 F 2d 125 127 (5th Cir 1966) In short when
there is added to this peculiar timing the employer s
knowledge and hostility and as here the additional
factor that Respondent s rationale for the Rickard selec
tion his bad attitude is palpably false it may be in
fered that the true motive for his selection was an unlaw
ful one which Respondent sought to disguise Shattuck
Denn Mining Corp v NLRB 362 F 2d 466 (9th Cir
1966) Heartland Food Warehouse 256 NLRB 940 (1980)
Lastly I cannot leave discussion of this issue (since I be
lieve it affects Respondents case generally) without
pointing to the quality of Respondents testimony with
regard to Rickard Whereas Hammonds testified that he
had been told of Rickards attitude problem by among
others general foreman Guzzle and that was one of the
reasons for Rickard s selection in the March 20 1980 lay
offs Guzzle testified however that he did not regard
Rickards attitude problem as affecting the quality or
quantity of his work as a serious problem until about a
week before the March 26 1981 layoff when Foreman
Dorsett complained about it (Tr 534) 15 I therefore con
clude that in view of Respondents knowledge of Rick
and s union activities on Sunday March 16 at the Hugh
McCrea recreation area its intermediate demonstrations
of union animus and unfair labor practices and its false
assertion that he was selected because of his bad atti
tude that its selection of Rickard in the March 20 1980
layoff occurring only 4 days after his appearance at the
union meeting was puma facie evidence of unlawful mo
tivation that its false defense was further evidence in sup
port of the General Counsels burden of showing that by
4 Contrary to the General Counsel s assertion (Br 13) Hammonds
specifically denied telling the three discriminatees that the front office
was responsible (Tr 360) I discredit his denial
15 It might also have been the very day of the 1981 layoff (Tr 535) In
spite of Forman Dorsett s reports of a deterioration of the quality and
quantity of Rickard s work covering 3 to 4 weeks before the layoff (Tr
532) Grizzle neither approached Rickard nor directed the foreman to
take corrective action merely telling the foreman to try to work with
Rickard (Tr 532) This again was 1981 when Rickard was again termi
nated Dorsett even in 1981 never spoke to Rickard concerning Rick
ard s work and attitude defects notwithstanding it was defective as soon
as Rickard came under Dorsett s supervision-a period of 1 1/2 to 2
months before the second termination Dorsett did nothing (Tr 555-558)
I do not credit any such testimony concerning Rickards defects whether
in 1980 or 1981 Nor do I credit Hammonds testimony that Rickards
bad attitude started only after he became a journeyman Such testimony
is designed to counter Respondents laudatory evaluation of Rickard as
late as 1978 (G C Exhs 3-4)
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a preponderance of the credible evidence the selection
of Rickard for the March 20 1980 layoff violated Sec
tion 8(a)(1) and (3) of the National Labor Relations Act
as alleged Limestone Apparel Corp 255 NLRB 722
(1981) Wellington Hall Nursing Home Inc 257 NLRB
791 (1981) Furthermore Respondent failed to show
either that his selection for layoff was for reasons other
than those supporting the General Counsels prima facie
case or that in any event he would have been included
in the March 20 layoff regardless of his unlawful selec
tion ,
2 The inclusion of Elwood Hardison in the March
20 1980layoff
Hammonds testified that Hardison was selected for the
March 20 1980 layoff because he had received com
plaints from Powell and Grizzle two foremen (Tr 351)
that Hardison had left his work area and had been
caught talking to other employees out of his work area
This allegedly unacceptable conduct continued over a 2
year period and was allegedly known to General Fore
man Hammonds (Tr 406-407) Not a single oral or writ
ten reprimand regarding this alleged improper Hardison
conduct was ever made Respondent does not deny
this 16 Rather apparently as a defense Respondent ad
duced many pages of testimony in this proceeding re
garding a 1979 Water Bottle Incident (Tr 354 et seq )
At the end of this testimony regarding the water bottle
incident (in which Hardison and Townsend among
others participated) Hammonds testified that this water
bottle incident admittedly a serious safety problem (Tr
356) had nothing to do with the layoffs of Hardison and
Townsend When confronted with Hammonds testimo
ny Respondent suggested that it was introduced only to
show a pattern of conduct a pattern of misconduct
and horseplay for which these two above alleged disco
minatees were terminated There was however not a
suggestion in the record of any pattern of horseplay or
that Respondent terminated them for any such horseplay
Rather this irrelevant water bottle incident occurring
in 1979 extremely serious misconduct around machinery
and especially electric machinery demonstrates that Re
spondent s selections of Rickard Hardison and Town
send for layoff on March 20 1980 were for unlawful
reasons and that the reasons assigned were either false or
pretextual
The 1979 water bottle incident resulted in no oral or
written reprimand to any employee The incident re
16 Hammonds testified that he spoke to Hardison s foremen Powell
and Grizzle and not only did they not reprimand him for his alleged
chronic misbehavior but Hammonds knew of this misconduct over a 2
year period and did not look into the reason why he had not been repo
manded (Tr 407) Hammonds testified he kept it in mind to consider in
a reduction in force (Tr 408) I do not credit such testimony of no action
against an employee for continued allegedly serious misbehavior over a
2 year period I do not credit Hammonds that Hardison was guilty of
such misbehavior much less chronic misbehavior Neither Powell nor
Grizzle confirm any such misbehavior nor conversations with Hammonds
on the subject Powell testified only that he imagined he told his gener
al foremen of Rickard Hardison and Townsend being unproductive (Tr
489) I do not credit Powell regarding Hardison s (or Rickard s or Town
send s) chronic malingering or ganging up notwithstanding it had been
going on for maybe two week? (Tr 490) rather than 2 years
ported by Supervisor Grizzle to General Foreman Ham
monds was that a DuPont supervisor caught four of Re
spondent s electricians (Townsend Hardison Smith and
Johnny Baxley the son of Respondents chief supervisor
J W Baxley) running up and down the stairs spraying
water at each other from water bottles The DuPont su
pervisor wanted them discharged for endangering them
selves and others by this horseplay Although Ham
monds testified that he called in and verbally reprimand
ed them I reject this conclusion and find on the basis of
testimony by Townsend and Hardison that he told them
only that he would try to smooth things over in spite of
the fact that DuPont wanted them fired Hammonds told
Hardison and Townsend that he would move them out
of the DuPont supervisors area on the fiberside and
move them over to the DMT side
As a result of the water bottle incident all four of the
parties were sent over to the DMT side remaining there
for a period of several months except for Superintendent
Baxley s son Johnny Baxley who remained there only 2
to 3 days
It is I believe pertinent to include this water bottle
incident first raised by Respondent as an apparent de
fense (notwithstanding that Hammonds testified that it
had nothing to do with the layoffs of the three alleged
discnminatees) to show that a serious safety infraction
resulted in no verbal or written warning to any of the
employees It is further important when compared to
certain other alleged infractions by Hardison that caused
him to be included in a subsequent 1981 layoff because
he then became an unproductive employee
As in the case of Rickard despite the so called com
plaints from foremen because he was caught talking with
other employees and idly standing around out of his
work area it must be noted that Hardison employed by
Respondent for 8 years had like Rickard never been
the subject of a single oral or verbal reprimand con
cerning his work or conduct
In March 1980 shortly before being laid off Hardison
was called in together with Townsend to repair an elec
tncal fixture on an emergency basis where water had
leaked into the fixture This was done at night on an
emergency basis and in the presence of Electrical Super
intendent J W Baxley and Supervisor Ransome Har
dison testified that Superintendent J W Baxley told him
that he would not have to worry about a job for 3 to 4
years because there was plenty of work on hand at the
DuPont project Baxley denied the conversation pnnci
pally on the ground that it could not have occurred be
cause Respondent does not know how much would be
available 3 to 4 years ahead I was not impressed with
Baxley s credibility both on the ground of his shifting
testimony whether he spoke to Daniel Project Manager
Garrett regarding seeing Hardison and Townsend on tel
evision on Sunday March 16 first deny that he did and
thereafter admitting that he did and also because as will
be hereafter noted because of i,ertain Hardison testimo
ny regarding a telegram of July 9 1980 1 therefore
credit Hardison that Baxley shortly before the March
20 1980 layoff told Hardison that there would be plenty
of work for him as a reward for his performing emergen
DAVIS ELECTRICAL CONSTRUCTORS 127
cy night service for Respondent that the Baxley state
ment was intended as praise for Hardison s dedication
and loyalty and an affirmation of Respondents high esti
mation of Hardison regardless of whether Baxley was
guaranteeing Hardison continual employment for 3 or 4
years that this occurred before Hardison appeared at the
Hugh McCrea Park on Sunday March 16 and that Re
spondent failed to support its defense that Hardison was
selected for layoff on March 20 1980 because he was an
unproductive employee I reach this conclusion on the
ground that there was not a single or oral reprimand in
this employees record although he had worked for Re
spondent over an 8 year period If his talking to other
employees and appearing out of the work area were mat
ters of some gravity to any of Respondents supervisors
such improper conduct would have resulted in an oral or
written reprimand or some minimal admonition It result
ed in nothing at all notwithstanding that Respondent was
not at all reticent in issuing reprimands to employees
who did not do their share of the work and left the work
area (e g R Exh 6) I was also impressed by Baxley s
euphoric and congratulatory reassurance to Hardison
shortly before his being selected for layoff because he
was unproductive that there would be plenty of work
for such a loyal employee
On the basis therefore of similar factual and the same
legal criteria as in the case of Rickard including Re
spondent replacing Hardison Rickard and Townsend
with other journeymen within a few days of layoff the
failure to prove his selection because he was unproduc
tive and Respondents union animus threats and the
timing of the layoff I conclude that the selection of Har
dison for layoff on March 20 1980 was because of his
appearance at the Hugh McCrea Park and because of
Respondents desire to rid itself of a union adherent in
violation of Section 8(a)(1) and (3) of the Act I note fur
ther in view of Baxley s statement to him shortly before
the layoff that there would be plenty of work for him
because of his exemplary conduct in working at night on
emergency basis and his absolutely clean and superior
work record that Respondents assertion that he was laid
off because of his talking to other employees and being
out of his work area was a false defense leads to the
same inferences of unlawful motivation as in the case of
Rickard and eliminates its alternate defense that regard
less of its motivation he would have been included in
the March 20 layoff in any case
3 The selection of Gene Townsend for inclusion in
the March 20 1980 layoff
Townsend testified that he worked for Respondent
twice since 1972 the last time in the period August 1979
through March 20 1980 when he was terminated in the
same layoff with Rickard and Hardison At that time he
was a journeymen electrician for 7 1/2 years and worked
under Foreman Gordon Powell with Rickard and Har
dison Among Respondents more than 100 unit electri
clans (R Exh 4) employed in March 1980 only Town
send and one other employee ( Butch Lewis) were cer
tified by DuPont as capable of doing high voltage
work Although there was some dispute as to how
often it was done (Townsend testified about once a
month and Respondents witnesses testified that it oc
curred on fewer occasions than that) there is no question
that Townsend was specifically qualified and was a com
parative rarity among Respondents employees More
over it is undenied that Townsend before 1980 was
named as a foreman and acted as a foreman for Respond
ent on three or four occasions the longest period being
about 6 months He like Rickard and Hardison was at
the Hugh McCrea recreation park on Sunday March 16
and he was included in the March 20 layoff Among
other things he testified that Respondents agent Jo
Virgil on Monday March 17 following the Sunday
March 16 meeting at the Hugh McCrea Park came to
the powerhouse and inquired of employee gripes that
they were willing to discuss with him 17 Whereas Re
spondent s witnesses (Box) testified that Townsend was
not uniquely qualified and indeed mentioned the names
of R D Smith and employee Young as also being certi
fled by DuPont to high voltage electrical work Town
send testified without contradiction in rebuttal that
Young had retired in 1977 and that Smith had last
worked for Respondent in 1978 Thus Respondents at
tempt to discredit Townsend ended in irrelevancy and
both magnified Townsend s uniqueness and demonstrated
an unnecessary weakness in Respondents selection of
Townsend Further whereas Hammonds apparently did
not testify on direct examination regarding the choice of
Townsend he did testify on cross examination that there
were complaints from Foreman Grizzle in 1980 that
Townsend although a good worker on some days was
moody Hammonds as with Hardison s wandering and
Rickard s bad attitude never made a note of Grizzle s
comment and never spoke to Townsend As with Rick
and s bad attitude Townsend s moodiness failed to
affect his work or conduct (Tr 365) As in the case of
Rickard and Hardison there is not a single reprimand or
warning whether oral or written regarding Townsend
It is clear that Townsend like Hardison and Rickard
was an exemplary employee and in his case uniquely
qualified (except for one other) among all of Respond
ent s more than 100 electricians Townsend s participa
tion in the water bottle incident is of no probative value
in view of Hammonds concession that it had nothing to
do with the selection of the layoffs On the contrary Re
spondent s raising the irrelevant misconduct as a defense
and its inclusion of much testimony regarding that mci
dent indicated quite clearly that it was not prepared for
Hammonds admission on the witness stand and that the
inclusion of such testimony alone is indicative of Re
spondent grasping at straws and a false defense
As in the cases of Rickard and Hardison I conclude
that Respondents explanation of inclusion of Townsend
in the layoff because of these inchoate subjective and
undocumented complaints from Grizzle regarding Town
send s moodiness and unproductivity was spurious I
therefore conclude that Townsend like Rickard and
Hardison was the beneficiary of the General Counsel s
prima facie case which was met by false defenses and
1 Townsend testified as did Rickard and Hardison that as far as they
knew they together with Jesse Paul Watkins were the only journeymen
laid off on March 20
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was included in the March 20 1980 layoff for unlawful
motives within the meaning of Section 8(a)(1) and (3) of
the Act
E The Grocery Store Conversation of Late
March 1980
The complaint alleges that in the latter part of March
1980 Gordon Powell threatened employees that they
would never work for Respondent again if they filed
charges with the Labor Board (par 8(e)) In support of
this allegation Hardison testified that in the late morning
of a day about 1 week after the March 20 layoff he met
Foreman Powell in a grocery store near the worksite i 8
He said that in a conversation with Powell Powell said
that General Foreman Hammonds said that if they pro
ceeded with their charges they would never work again
on another Daniel job Powell admits meeting and con
versing with Hardison at a grocery store but asserts that
the meeting started with Hardison s wife looking at
Powell and saying There s that SO B that laid you
off Powell then said that he then asked Hardison
whether he had found a job and Hardison said that he
had not Powell specifically denies that he had been told
by Hammonds that if the alleged discriminatees proceed
ed with their charges they would never work again on a
Daniel job Moreover Powell testified that in various
telephone calls from Hardison which he received at
home Hardison would inquire who was working for Re
spondent would bad mouth Respondents and Daniel s
top supervisors and said that the alleged discnminatees
would get a lawyer I conclude from my observation of
the witnesses as they testified and the circumstances of
the case including Respondents manifiested hostility to
union organization among its employees that the Gener
al Counsel has not sustained his burden of proving that
the particular threat was uttered Although I was not
generally impressed with Powell s credibility I find that
while Hardison was called in rebuttal he failed to con
tradict Powell s testimony that their wives were present
(Hardison said they were alone) and that the conversa
tion occurred in a different place Neither wife was
called as a witness Under such circumstances I recom
mend that the allegation be dismissed as unproven 19
F The Rehiring of Rickard and Hardison
Respondent does not deny that Rickard was reem
ployed by Respondent on or about May 12 1980 and
Hardison reemployed on or about July 15 1980 20 Re
18 Powell and Hardison disagree concerning in which grocery store
the conversation occurred
19I need not pass on Respondents further argument (Br 48) that
Hammonds and Powell members of Davis management could not keep
him from working on a Daniel job If that were the issue then under the
facts of this case demonstrating a substantial interrelation between the
Davis employees and Daniel power to hire I would be inclined to
change the credibility resolution
20 To the extent that Respondent argues that its voluntary rehiring of
Hardison and Rickard (i e the absence of rehiring pursuant to an order
of reinstatement) demonstrates freedom from union animus that argu
ment is rejected Rather such rehiring on this record tends to demon
strate the insubstantiality of Hardison s unproductiveness and Rickard s
bad attitude a hiatus of union activity among Respondents employees
and perhaps Respondents desire to limit any backpay since the charge in
spondent admits that the charges in Case 11-CA-9018
were served on March 27 1980 (1 week after the alleged
unlawful terminations of March 20 1980) and an amend
ed charge in the same case was served on Respondent on
May 7 1980 These charges relate to the unlawful termi
nations inter alia of Rickard Hardison Townsend and
Watkins
Bearing in mind that the amended charge in Case 11-
CA-9018 was served on Respondent on May 7 1980
there appears in the record certain uncontradicted and
credited Rickard testimony which is unexplained by Re
spondent and further suggests the implausibility of Re
spondent s defenses regarding the performance inadequa
cy and bad attitude of Townsend Rickard and Hardison
to the extent that it would cause them to be laid off
rather than other less experienced personnel Thus
sometime subsequent to the March 20 1980 layoffs on
three occasions Rickard was visited by employees
Johnny Baxley and Conrad Stowell who asked him if he
wished to return to work again around May 7 or 8 he
was visited by Johnny Baxley and Stowell who again
asked him if he was still interested in working for Davis
He told them that he was Respondent received a copy
of the amended charge alleging Rickards unlawful ter
mination on May 7 Shortly thereafter Johnny Baxley
telephoned him at night Wednesday May 7 and said
that if he was still interested in working for Respondent
he should come in on the next day (Thursday May 8
1980) to fill out employment application papers and be
prepared to go to work on the next working day the fol
lowing Monday May 12 1980 Rickard reported at the
jobsite on Thursday May 8 did fill out the papers and
had a conversation with Superintendent J W Baxley
Baxley said to him Glad to have you back There
being no further or other explanation than that Respond
ent used employees Johnny Baxley (son of Respondent s
superintendent) and Stowell as their means to inquire
whether Rickard wanted further employment I conclude
that they were Respondent s agents in the Rickard rehir
ing and that it was Respondents May 7 receipt of the
amended charge that lead to the sudden May 7 night
offer and the actual reemployment of Rickard on May
1221
Starting on Monday May 12 Rickard worked under
Foreman Kraynick and then the newly appointed fore
man Johnny Baxley who took over Kraynick s crew
Rickard worked for Baxley from approximately June 1
1980 through January 1981 when he was transferred to
Foreman R D Dorsett s crew
It was on January 8 1981 that Rickard and Hardison
among others appeared at a National Labor Relations
Board hearing before Administrative Law Judge Bernard
Ries and it was in mid January 1981 that Rickard was
transfered to Dorsett s crew The complaint alleges that
Case 11-CA-9018 had already been served an amended charge served
on May 7 and Rickard rehired on May 12 1980
21 I found it rather singular for the offer of employment to Rickard to
flow from Johnny Baxley then a mere employee In making credibility
resolutions adverse to Respondent this type of indirect dealing and ambi
guity (allowing room for the argument over responsibility and agency
status) cannot escape notice
DAVIS ELECTRICAL CONSTRUCTORS 129
such a transfer was unlawful and violated Section 8(a)(1)
and (3) of the Act (par 11 of the complaint) This allega
tion is treated hereafter
Meanwhile after Rickard had been employed and for
the period subsequent to his March 20 1980 termination
Elwood Hardison from time to time telephoned Re
spondent s personnel department Superintendent J W
Baxley and General Foreman J W Hammonds to in
quire if Respondent was doing any hiring They told
them that it was not He also telephoned Foreman
Powell and spoke disparagingly of members of Daniel
and Davis top management (Tr 481 et seq)
Sometime immediately before July 8 1980 employee
Conrad Stowell (who with Johnny Baxley had earlier
visited Rickard on behalf of Respondent) came alone to
Hardison s house Stowell gave Hardison a piece of
paper with the National Labor Relations Board case
number on it concerning the case number of the charge
(Case 11-CA-9018) which had been filed and told Har
dison that he should call J W Baxley about the case
Hardison on July 8 1980 telephoned Baxley and there
after visited him During the visit Baxley according to
Hardison told him that if he telegraphed the National
Labor Relations Board to drop the case Respondent
would hire him back at the DuPont site Hardison said
that Baxley insisted that the conversation be strictly con
fidential and said that Hardison bring a copy of any
such telegram to Baxley so that Baxley could give it to
Daniel Constructions project manager Charlie Garrett
With such a telegram Hardison said Baxley told him
that he would return to work on the following Monday
Hardison said that he agreed to send the telegram and to
bring it to Baxley s house on the next day Friday July
10 1980 In any event Hardison on the morning of July
9 1980 sent a telegram to the Regional Director of
Region 11 National Labor Relations Board (G C Exh
5) Would like to drop Case No 11-CA-9018 on Davis
Electric Company [Signed] Elwood Hardison Har
dison who had worked for Respondent from March
1975 through March 1980 without being laid off notwith
standing that there had been many layoffs of electrical
employees in that 5 year period was reemployed com
mencing on or about July 15 1980 as a journeymen
electrician
J W Baxley s version of this event is that Hardison
visited his house about 3 to 4 months after the March 20
1980 layoff and merely dropped in Hardison admittedly
told him that his wife had left him that he was taking
care of his little boy and that he was trying to get his
wife back Baxley advised him to go to a church and re
ceive counseling concerning his private life Baxley said
that Hardison then remarked that Hardison s uncle had
told him to get rid of the case against Davis and to send
a telegram to that effect Baxley further said that Har
dison suggested that he give a copy of the telegram to
Baxley and that Baxley speak to Garrett about rehiring
him on the job Baxley agreed to do so Baxley further
testified that when a few days later he got a copy of the
telegram from Hardison he gave the telegram to Garrett
and that Hardison thereafter returned to work Baxley
said that he spoke to Garrett after receiving the telegram
and when he told him of Hardison s sad condition Gar
rett told Baxley that he could see what he could do
about the matter Thereafter as above noted on or about
July 15 1980 Hardison was rehired on Respondent s
payroll
Baxley further testified that he spoke to Garrett not
because of the telegram but because he felt sorry for
Hardison and Hardison s personal predicament In re
sponse to my inquiry of J W Baxley why since it was
his feelings of sympathy for Hardison s personal predica
ment rather than the receipt of the telegram that caused
him to speak to Garrett he did not speak to Garrett
before rather than after he received the copy of Hardis
on s telegram Baxley sat silent was then evasive (Tr
509) and finally could not answer the question (Tr 509-
510) I have little difficulty in crediting Hardison s ver
sion over Baxley s denial I am mindful of Baxley s testi
mony at first denying and then admitting that he spoke
to Daniel Project Manager Garrett on March 17 con
cerning the presence of Davis employees at the Hugh
McCrea Park meeting on March 16 (Tr 519) and I was
particularly impressed by his inability to offer any expla
nation (i e too busy forgetful etc) why he waited for a
copy of Hardison s telegram before asking Garrett to
rehire him if his motive in speaking to Garrett was sym
pathy for Hardison Baxley s failure to answer this ques
tion and his embarrassed silence lead me to discredit
Baxley s denials and to credit Hardison In this regard
Respondent not only manifested its opposition to the
Union but sought to prevent Hardison s attempt at vindi
cation through the processes of National Labor Relations
Board I am also mindful of the fact that Conrad
Stowell who with Johnny Baxley played a similar part
in the earlier rehiring of Richard in May 1980 also
played a similar part in the rehiring of Hardison Re
spondent called neither Johnny Baxley nor Conrad
Stowell to explain or deny the testimony of the General
Counsels witnesses concerning their agency in causing
the rehiring of Rickard and Hardison In view of my
findings of Stowell s agency in this regard I further
credit Hardison s version of the conversation with Super
intendent Baxley concerning the circumstances of his at
tempted telegram withdrawal in Case 11-CA-9081 since
Respondent failed to call its agent Stowell to deny Har
dison s testimony that Stowell come to his house with
the case number on a slip of paper and a suggestion that
Hardison communicate with Baxley I regard Respond
ent s failure to call Stowell to deny this Hardison testi
mony as a further basis for drawing an inference adverse
to Respondent Compare Laredo Coca Cola Bottling Co
241 NLRB 167 172 (1979) with Hitchiner Mfg Co 243
NLRB 927 (1979) and to further cause me to believe
that Hardison s version of the conversation was true and
that superintendent Baxley testified falsely In so finding
I do not conclude that this conduct constituted an unfair
labor practice since it is not so alleged and the General
Counsel offered the evidence only to show continued
Respondent union animus (Tr 157(a)) 22 That it does
22 Respondent failed to object to the receipt of Rickard s testimony
concerning Stowell and Johnny Baxley on any ground and the testimony
was received for all purposes The Hardison testimony concerning
Continued
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G The Alleged Unlawful Transfer of Rickard in Mid
January 1981
The complaint (par 11) alleges as noted above that in
or about mid January 1981 Respondent transferred Rick
and in violation of Section 8(a)(1) (3) and (4) of the Act
As noted above Johnny Baxley telephoned Rickard
on Wednesday night May 7 1980 asked him if he was
interested in returning to work and if so he could come
in the next day Thursday May 8 to fill out reemploy
ment papers and be prepared to commence work on the
next workday Monday May 12 When he was fill ng
out the papers on May 8 1980 Superintendent J W
Baxley told him that Baxley was glad to have you
back Rickard then returned to work on Foreman
Kraynick s crew and worked among 10 journeymen and
helpers After 3 weeks Johnny Baxley became a fore
man and took over Kraynick s crew Rickard testified
that he worked for Johnny Baxley from June 1 1980 to
mid January 1981 when he was transferred to Foreman
Ron Dorsett s crew Rickard appeared before Adminis
trative Law Judge Bernard Ries in the National Labor
Relations Board proceeding which opened on January 8
1981 The transfer occurred within a short time Rickard
testified that he was told of the transfer by Johnny
Baxley while at work on Thursday and that the transfer
would become effective on the following Monday At
that time Rickard was working on the controls of a con
veyor system work for only the most experienced elec
tricians and journeyman Conrad Stowell was then
transferred in from Kraymck s crew to do Rickard s
job on the conveyor There was still a considerable
amount of work on the conveyor when Rickard was
transferred (Tr 101) Finally Rickard testified that his
work on Dorsett s crew was pulling wire and running
conduit which was routine work which continued from
mid January 1981 to March 26 1981 when he was again
terminated by Respondent At the time of his termination
on March 26 also alleged as an unfair labor practice in
violation of Section 8(a)(1) (3) and (4) of the Act Rick
and testified without contradiction that he saw Conrad
Stowell the journeyman wno had replaced him on the
Baxley crew still working on and hooking up the con
trol panels that Rickard had been working on when he
was transferred from Baxley s crew to Dorsett s crew
General Foreman Herb Grizzle testified that with the
respect to the Rickard transfer in mid January he trans
ferred Stowell from Kraymck s crew to Baxley s crew
and Rickard from Baxley s crew to Dorsett s crew be
cause Rickard was more familiar with the bailer which r
Doresett s crew was working on than was Stowell Herb
Grizzle also testified that there were also other transfers
on the same day swelling Dorsett s crew to 14 journey
men and helpers at the same time that Rickard was trans
ferred Dorsett testified that they added six electricians
and helpers to his eight man crew because they wanted
Stowell s visit with the case number on a slip of paper allegedly from
Baxley was also not the subject of objection although subsequent testi
mony concerning the conversation on the next day between Hardison
and Superintendent J W Baxley was the subject of Respondents objec
tion of remoteness (Tr 157(a)) and it was admitted on the General
Counsel s restrictive offer not for the purpose of finding an unfair labor
practice but merely to show Respondents continued animus
to be on schedule on the bailer which he and Grizzle de
scribed (Tr 546) with contradiction as the most comph
cated piece of equipment in the entire DuPont area He
testified and Rickard denied that in the conversation be
tween Dorsett and Rickard Rickard told him that he
was happy to get out of Johnny Baxley s crew because
he was tired of carrying him (Baxley)
The General Counsel points to the fact of Respond
ent s generalized union animus and particularized animus
for Rickard because he appeared at the January 8 1981
Board hearing a week or so before the transfer The
General Counsel argues that this sequence supports the
inference that the transfer was unlawfully motivated
particularly within the meaning of Section 8(a)(3) and (4)
of the Act He also notes that many transfers occur
under emergency conditions here there was not only no
proof of an emergency but no reason given for the trans
fer The testimony however is in dispute as to whether
Rickard after the transfer was doing routine work pull
ing wire and conduit notwithstanding that Rickard ad
mitted that he was working with a helper on the bailer at
the time of the layoff The evidence shows in addition
that the transfer did not result in any pay or other detn
ment to Rickard There was no suggestion that he was
placed on Dorsett s crew in order to lay him off because
he remained on that crew from mid January to the end
of March Nor was it shown that he was transferred into
the crew to isolate him or to keep his union activities
under surveillance
In the absence of evidence showing that he was trans
ferred for purposes of keeping his union activities under
surveillance or that the transfer resulted in some loss of
pay or that some detrimental working condition was im
posed on him or was retaliatory and notwithstarding
that he may have only been pulling conduit rather than
his erstwhile more complicated tasks in view of the
General Counsels failure to undermine the testimony of
Foreman Ted Grizzle that Rickard was added because
the work on the bailer was work on a most complicated
piece of machinery for which Rickards long experience
qualified him I am unable to conclude that Respondents
manifested animus against union activities in general
and Rickard in particular played a role in this transfer
particularly because in the absence of evidence that
Rickard was being set up or that the new job was less
desirable other than being technically unrewarding the
transfer resulted in Rickard continuing to work for Re
spondent for 3 months after the transfer In short I con
elude that the General Counsel has failed to prove by a
preponderance of the evidence (notwithstanding the ex
istence of prior animus and unlawful conduct towards
Rickard) that this mid January 1981 transfer was unlaw
fully motivated Further Rickards January 8 1981 testi
mony was not shown to be a causal factor in the trans
fer 23 I shall therefore recommend to the Board that
23 I am not unaware that Hardison also was the subject of a transfer
about a week after he appeared on January 8 1981 If Respondent by
these transfers intended to send a message to Rickard and Hardison to
retaliate for their testimony the evidence was too indistinct
DAVIS ELECTRICAL CONSTRUCTORS i 131
paragraph 11 of the amended complaint be dismissed as
unproven
H The Alleged Unlawful Written Warnings to Elwood
Hardison of February 24 1981
Paragraph 10 of the amended complaint alleges that on
or about February 24 1981 Respondent issued two writ
ten warnings to Elwood Hardison which warnings were
unlawful in motivation and violated Section 8(a)(3) and
(4) of the Act
As noted above 1 week after Hardison presented a
copy of his July 9 telegram to the Labor Board to J W
Baxley he was rehired and worked with Rickard in
Johnny Baxley s crew In November 1980 Hardison vol
unteered to work on the night shift under Foreman Jerry
Bell
Like Rickard Hardison appeared at the Board heanng
on January 8 1981 and was working on the night shift
under Foreman Jerry Bell from November 1980 until
January 1981 when he too was transferred (effective Jan
uary 18 1981) about I week after the hearing to Fore
man Kraynick crew on the day shift He worked for
Kraynick until February 19 1981 As in the case of
Rickard Hardison s foreman Bell told him on the pre
ceding Thursday January 15 that Hardison and his
helper were going back on the day shift on Kraynick s
crew 24 After a week with Kraynick Kraynick told
Hardison that he was being sent over to the DMT side
under Foreman Ransom There was no allegation that
these transfers of Hardison from crew to crew were in
any way unlawful Hardison worked for Foreman
Ransom on the DMT side from January 19 through
March 26 1981 when he and Rickard were terminated
under a reduction in force As above this reduction in
force itself is the subject of the General Counsels further
allegations that the selections of Rickard and Hardison
were unlawfully motivated and violated Section 8(a)(3)
and (4) of the Act
Hardison testified that on Thursday February 19
1981 he left work and went home early with Respond
ent s (General Foreman Ted Box) permission because he
did not want to work in the rain doing outside electrical
work Ted Box General Foreman on the DMT side tes
tified that on Thursday February 19 1981 there was a
need to transfer people and that on that afternoon he had
a foremen s meeting to implement the transfer At that
meeting he picked Hardison to be transferred from Ran
som s crew to the crew of Foreman K Graham
Hardison having left early on Thursday because of the
rain (and because Thursday is the last day of the work
week) Box Graham and Ransom were unable to tell
Hardison of the impending transfer When Hardison
came to work before 7 a in (starting time) on the next
workday Monday February 23 he heard from an em
ployee that he was being transferred to Graham s crew
24 I credit Hardison s uncontradicted testimony that Foreman Bell told
Hardison in December 1980 after Hardison suggested that Rickard fill
the opening for another night shift electrician that Respondent did not
want Rickard and Hardison working together because they were too
good friends I also credit Hardison s further uncontradicted testimony
that Respondent has many crews on which personal friends work togeth
er
Hardison did not get along with Graham and did not
want to work for him Hardison testified that Box knew
this Box did not deny it When Hardison saw Foreman
Ransom and asked where Box was Ransom said that
Box was in his office Hardison went to Box s office but
Box was not there Foreman Nathan Ridgeway was
there (Tr 172) and called Box at another building (Tr
173) and said Hardison wanted to see him Box directed
Ridgeway to send Hardison over to see him (Tr 423)
Hardison then spoke to Box who maintained an open
door policy for employees who had problems provided
that the employee received permission from his foreman
to visit Box When Hardison came to Box s office Har
dison told him that he did not want to work for Fore
man Kermit Graham When Box asked him if he were
refusing to work for Graham Hardison told him that he
was not refusing because if he refused Box would have
the ground to fire him Instead Hardison asked for per
mission to leave early to think the matter over and told
Box that if he could find a job paying $2 an hour he
would not come back to work for Respondent Box told
him that he would sign his timecard to permit him to go
home but wanted an answer from him first thing in the
morning Hardison agreed Box then signed the timecard
and permitted Hardison to leave early
The next day February 24 Hardison reported to work
for Graham but did not telephone or contact Box
Rather Graham told Box that Hardison was working for
him that morning Box returned to his office and wrote
up a reprimand (G C Exh 7)
Meanwhile Foreman Ransom had come to Box s
office and told him that Hardison had not received per
mission to talk with Box on February 23 and that while
Hardison A as waiting to see Box Hardison had not re
ported to his assigned work area on Monday morning
thereby missing a safety lecture Ransom then wrote up a
reprimand (G C Exh 6) allegedly on the morning of
February 23 without dating the reprimand He placed
the date (February 24) on it the next day when Hardison
was called into the office and presented with the two
reprimands on February 24
Hardison testified that on February 24 Graham told
him while he was working that General Foreman Box
wanted to see him He went to Box s office and there
found Box and Ransom Box gave him Ransom s repn
mand which noted a failure to receive Ransom s permis
sion to see Box for not going to a safety meeting and not
going to his designated work area Hardison told him
that it was untrue and refused to sign the Ransom repri
mand Then Box handed him a second reprimand (Box s
reprimand) for going home early and not going to his
designated work area
Regarding Ransom s reprimand Hardison testified that
when he saw Ransom on the morning of February 23
and asked him where Box was and Ransom told him that
Box was in his office that was the equivalent of being
given permission to see Box Regarding Box s reprimand
Hardison testified that that reprimand looked more like
the truth and admitted that during the conversation
with Box Box told him that there was work to do on
that Monday that he was needed and that Box said that
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hardison s dislike of working for Graham and wanting
to go home early to think it over was not a good reason
for going home early
Box testified that he wrote up the reprimand (G C
Exh 7) because he considered it an act of insubordina
tion for Hardison to refuse to go to work even though
he gave Hardison permission to leave early to think over
whether he wanted to work for Graham
An analysis of the reprimands demonstrates that in
view of Respondents unlawful animus against Hardison
the reprimands can hardly be said to have been lawfully
inspired
Regarding Ransom s reprimand as the General Court
sel notes (Br 21) since Ransom admitted (G C Exh 6)
that Hardison left him for Box before starting time Har
dison did not then need Ransom s permission to leave In
addition it is clear that Ransom knew or had reason to
believe from Hardison s question where Hardison was
going and saw him leave It is difficult to believe that
seeing Hardison leave Ransom would not have made
some inquiry or warned him of the impending safety
meeting if this matter were of serious concern to
Ransom But even if the evidence is not compelling re
garding the Ransom reprimand it seems clear that since
the events are linked the reprimands should be read to
gether In this light it is clear that Box apparently un
successful in inducing Hardison to affirmatively state that
he refused to work for Graham and having given Har
dison permission to leave early (to think it over) never
theless without warning Hardison wrote up a reprimand
(when Hardison was out of sight) based on Hardison s
insubordination for leaving early with Box s permis
sion I regard it as without legal meat that Box s permis
sion to Hardison to leave early was reluctantly given be
cause of the alleged large amount of work that was out
standing
The pivotal issue is whether Box with or without re
luctance made the decision to give Hardison permission
to leave early and in fact gave Hardison his permission
It is uncontradicted that he gave such permission Under
circumstances free from copious and accurately directed
prior unlawful conduct Box s transfer of Hardison to an
uncongenial foreman cannot be a matter for statutory
concern To do so in the presence of Respondents union
animus and unlawful prior acts against Hardison is clear
ly suspicious But for Box to issue a reprimand to Har
dison for his having left early after granting him permis
sion to do so is to engage in a sandbagging operation
against Hardison disciplining Hardison for an act for
which he was given express permission to engage in
Under these circumstances and notwithstanding an em
ployer s clear right to engage in harsh and illogical ac
tions against its employees without violating the Act but
reading the two reprimands together since they grow
out of the same transaction I regard the two reprimands
to a newly rehired employee who has demonstrated by
his January 8 testimony both an insensitiveness to super
visor Baxley s benevolence and a continual desire to vin
dicate his 8(a)(3) rights as a subterfuge and a method of
creating a paper trial so that a record could be made
of Hardison s misbehavior and an attempt to blacken his
work history Box testified that reprimands may be taken
into account in deciding whom to lay off In this record
it must be noted above all as Box admitted that in the 8
years of Hardison s employment he had received not a
single oral or written reprimand Respondents calling at
tention to Hardison s participation in the water bottle
incident admittedly not a reason for discharging him is
not only not to be construed as an oral reprimand but
shows Respondent searching around for an element of
misconduct to pin on Hardison These two reprimands
show the same stamp
I therefore conclude that in accordance with para
graph 10 of the amended complaint the written warn
ings of February 24 1981 to Elwood Hardison whether
or not supportable in fact and I believe them to be un
supportable were pretextual attempts by Respondent to
place blemishes on Hardison s work record I conclude
that this Respondent conduct flowed both from Hardis
on s participation in the prior years (March 16 1980)
union activity and particularly his January 8 1981 Board
appearance Respondent by the two warnings was
showing Hardison that his National Labor Relations
Board appearance was an act inconsistent with Respond
ent having rehired him Thus I regard the two February
24 written reprimands to Hardison to constitute viola
tions of Section 8(a)(3) and (4) of the Act I shall recom
mend inter alia that they be removed from his employ
ment record
I The Alleged Unlawful March 26 1981 Layoffs of
Hardison and Rickard
J W Hammonds since June 1980 superintendent on
the same highest managerial level as J W Baxley testi
fled that in a meeting with DuPont on Wednesday
March 25 1980 there was a decision to reduce the
number of electricians by 14 because of the imminent
completion of 2 projects one on fiberside the other at
the DMT 25 Together with superintendent Baxley they
decided early on Thursday March 26 that seven electri
cians be laid off from DMT and seven from the fiberside
They then held a meeting with their general foremen
Herb Grizzle (fiberside) and Ted Box (DMT side) where
they notified that each was to submit seven names for
layoff Thereafter General Foremen Box and Guzzle re
turned later on Thursday March 26 with the 14 names
and Hammonds approved them Hammonds testified that
he made no recommendations regarding the names All
parties are in apparent agreement that the criteria for
laying off employees is that Respondent lays off those
who are least productive and does not abide by any
seniority rule or criteria in making the layoff
1 The layoff of Elwood Hardison
Box testified that on Thursday morning March 26 he
was told of the need to layoff seven electricians from the
25 Hammonds insisted that Hardison on the DMT side was laid off
because there was no electrical work for him and others laid off at that
time in his project (Tr 400-402 ) Earlier he testified that the electrical
work Hardison was working on was merely declining (Tr 400) Har
dison testified that on Friday March 27 1981 the day after his layoff he
saw members of his own crew going to work on an overtime basis (Tr
186) Friday is not part of the regular workweek
DAVIS ELECTRICAL CONSTRUCTORS
DMT side at a general foremen meeting with their su
perintendent Hammonds that he then had a Thursday
afternoon meeting with his six foremen Three did not
give any names for layoffs (on the ground of being too
busy) and three (Graham Hillburn and Ransom) gave
seven names Box told the six foremen that he wanted
the names of those who were least productive had poor
quality and quantity of work and had a record of absen
teeism Graham gave Hardison s name to Box 26
Box testified that the six employees laid off with Har
dison were slow workers some of whom had repri
mands He testified that Hardison had been picked by
Graham and confirmed by Box because he was among
the least productive and had two wntten reprimands
(which above were found to be unlawfully derived)
Box testified that all seven of the electricians included in
the March 26 layoff had been counseled on their short
comings although he could recall no dates Regarding
Hardison Box testified that there were only two repri
mands in his file that there was nothing else detrimental
in his file such as accusations of absenteeism poor pro
duction or poor quality of his work that Box had acqui
esced in the selection of Hardison without inspecting his
file
On Box s admissions that the two unlawful reprimands
played the principal if not the exclusive basis for his
confirmation in the terminations since Hardison except
for those reprimands had an unblemished record for 8
years of employment with Respondent and in view of
myrconclusions that the two February 24 1981 repn
mands were unlawfully motivated I conclude that the
Hardison inclusion in the otherwise lawful economic
layoff of March 26 stemmed from discriminatory moti
vation was unlawful and that Respondent has failed to
show that Hardison would have been included in the
layoff absent the unlawful considerations Huntington
Rubber Co 260 NLRB 1008 (1982) Wright Line 251
NLRB 1083 (1980) Moreover Hardison if anything on
Box s admission was not shown to be among the least
productive based Fon any objective criteria (again
Graham who allegedly selected Hardison for terming
tion by inter alta applying the criterion of least pro
ductive did not testify) and Box admitted that there
was nothing in Hardison s file concerning absenteeism
and nothing concerning quality or quantity of his work
Together with the two wntten reprimands Box testified
it was principally his observation of Hardison that lead
him to believe that he was among the least productive 27
In view of these circumstances including Graham s fail
ure to testify the subjective and actually flimsy nature of
Box s unsupported and undocumented observation that
Hardison was not a productive employee I conclude
that the inclusion of Hardison in the March 26 1981
layoff was unlawfully motivated because the reasons ad
vanced by Respondent are unbelievable unsupported
subjective observations and are not based on any sub
stantiated objective criteria other than the two repn
mands which were themselves unlawfully motivated
26 Graham did not testify
27 Respondent laid off Hardison in 1980 because with Rickard he was
the least productive
133
Thus his being laid off for unlawful reasons creates a
prima facie case which on Respondents own proof
stands unrebutted Wright Line supra I further conclude
that Respondents conduct regarding Hardison especial
ly in light of his peculiar ingratitude after Respondent re
hired him is a continuation of its previous retaliation
against him for his further participation in union activi
ties and Board proceedings A repetition of the evidence
of Respondents animus and unlawful dealings with Har
dison in unnecessary The layoff violates Section 8(a)(3)
and (4)
2 The inclusion of C P Rickard in the March 26
1981 layoff
Grizzle testified that he received from Superintendent
J W Hammonds a direction to layoff seven employees
Foreman Ronnie Dorsett testified that General Fore
man Grizzle told him to cut back his 14 man crew to 9
employees Grizzle told him that he needed five names
and that he should look at his people real good and
take everything into consideration Dorsett testified
that he gave five names to Grizzle at a meeting with
four other Grizzle foremen on March 25 1981 the
Wednesday before the Thursday layoffs Among the fac
tors Dorsett said that he took into account were atti
tude dependability early quits absence quality and
quantity of work In accordance with these factors Dor
sett testified that he picked Rickard among the others be
cause of Rickards attitude problems He said that
Rickard manifested an attitude whereby the whole world
was against him ( there was a feeling there Tr 554)
He said that it affected his work to such an extent that
Rickard showed that he did not care if a job got done or
not Yet Dorsett testified that he (1) never spoke to
Rickard of this bad attitude that allegedly adversely of
fected his work in the entire 2 months (January through
March 1981) that Rickard had worked for him and (2)
certainly had never issued a warning written or oral to
Rickard because of his poor conduct or any other
reason On the other hand Dorsett testified that regard
ing employee J D Hull a helper who was also laid off
for poor attitude and poor quality of work he told Hull
to tighten up his work 2 weeks before the layoff Simi
larly Dorsett warned employee Terry Shoenick who
was laid off with Rickard because of his poor attitude of
being caught in a phone booth out of the work area on
several occasions before he was terminated Dorsett se
lected employee Berkett for layoff Harvey Berkett was
warned by Dorsett twice a week for a period of a month
to stop talking and to work (Tr 560-561) No such
warnings or counseling oral or written were given to
Rickard Similarly there is not a particle of evidence
showing any Rickard lack of dependability or that he
quit early or that he had any absences or that the qual
ity or quantity of his work was ever in doubt Dorsett s
testimony regarding his basis for Rickards selection for
the March 26 layoff where responsive was unbelievable
(Tr 554-560)
Grizzle testified on matters not at all suggested by
Dorsett Dorsett who testified that Rickards bad atti
tude covered the entire 2 month period of his working
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on Dorsett s crew never said that this matter had been
discussed with Grizzle Grizzle testified that Rickard s
bad attitude was his failure to communicate with the
foreman and that Guzzle did not regard the deterioration
of the quality and quantity of Rickards work as serious
until the second Dorsett complaint about this matter on
the Thursday March 26 layoff Dorsett s testimony men
tions no complaints to Grizzle Although Dorsett did say
that Rickard didn t speak to him in performing his jobs
it is difficult to see how Rickard s bad attitude over so
long a period allegedly affecting the quality and quanti
ty of Rickards work to such an extent that it created a
morale problem among other employees did not result in
Dorsett taking the matter up with Rickard Dorsett
never did so although he made an open issue of poor
production and attitude with at least two other employ
ees who were laid off with Rickard In view of these cir
cumstances therefore including Grizzle s and Dorsett s
inconsistent and wholly incredible testimony regarding
their selection of Rickard for layoff I am unable to find
any believable reason for the layoff of March 26 1981
Thus the General Counsels prima) facie case was unre
butted Rather Respondent relied on principally the
same factors in Rickards inclusion of the March 26 1981
layoffs as it did in his March 20 1980 layoff which was
unlawful No credible evidence had been adduced by Re
spondent to demonstrate Rickards bad attitude much
less any objective evidence thereof nor any other reason
to cause the inclusion of an employee with 7 years expe
rience and an unblemished record whom Respondent
voluntarily rehired 28 into an otherwise lawful layoff I
conclude therefore that Respondent violated Section
8(a)(1) (3) and (4) by its March 26 1981 inclusion of
Rickard as the inclusion of Hardison in the layoff for
unlawful reasons and that its conduct was merely a con
tinuation of Respondents 1980 unlawful conduct of re
taliating against Rickard because of his open renewed
participation in union activities and Board proceedings
In reaching this conclusion I am not suggesting that the
layoff of other employees was not for economic reasons
Here Respondent used the otherwise lawful layoff to rid
itself of two employees whose engaging in and support
of statutory rights was inconsistent with Respondent s
opposition to the Union and demonstrated in addition a
callous ingratitude for being rehired
28 Supervisor Hammonds testified that Respondent laid off Rickard in
1980 because of his bad attitude (Tr 346 et seq ) because he sometimes
failed to talk to supervisors This did not affect his work yet it was
enough of a problem allegedly to cause Respondent to terminate him
Yet as Respondent observes Respondent rehired Rickard of its own
free will in May of 1980 (Br 30) apparently with no admonition against
Rickard continuing to manifest this psychological defect Respondent ac
cording to Dorsett and Grizzle allegedly noticed this same personality
abberration in Rickard as soon as he was transferred to Dorsett s crew in
January 1981 but never spoke to him about it for the 2 months it alleged
ly irritated Dorsett Unlike Hardison who complained of his idleness and
for whom Baxley felt sympathy when he caused him to be rehired the
allegedly moody Rickard was repeatedly sought out by Respondent and
repeatedly queried on his availability for return to work J W Baxley s
only salutation to Rickard on his rehire was that he was happy to have
Rickard back Such evidence shows that Respondent rehired Rickard
after the settlement during a hiatus in union activity whatever his tem
perament because he was a good electrician and terminated him shortly
after he manifested by his Board appearance his continued support of his
rights under Secs 7 and 8(a)(3) and (4) of the Act
In making the above determinations I have relied in
part on Respondents pre January 8 1981 conduct29 (the
conduct anteceding the January 8 settlement agreement
with the Regional Director) in establishing Respondent s
motive in its postsettlement inclusion of Hardison and
Rickard in the layoffs and the February 1981 reprimands
to Hardison The Board rule approved by the courts
permits the use of this presettlement evidence to establish
a postsettlement motive or object Joseph s Landscaping
Service 154 NLRB 1384 (1965) enfd sub nom NLRB v
Northern California Hodcarrrers 389 F 2d 721 (9th Cir
1968) Electrical Workers IBEW Local 613 (M HE Con
tracting) 227 NLRB 1954 at fn 1 (1977) Further in
view of Respondents substantial and clear unlawful con
duct regarding inter aria Rickard and Hardison in its
unlawful terminations of them on March 20 1980 and
in view of their umblemished records at all material
times and the falseness and pretextual nature of Respond
ent s reasons for terminating them both in 1980 and 1981
and considering Respondents continued union animus in
rehiring Hardison in 1981 only if he withdraw his
charges I regard the General Counsels prima facie case
as not only not have been answered or rebutted see
Wright Line supra but I also conclude in view of its
palpably false defenses that Respondent has attempted to
disguise its true motive for the terminations in 1980 and
1981 and that such attempts further support the General
Counsels prima facie case Compare Limestone Apparel
Corp 255 NLRB 722 (1981) with Lafayette Steel Erec
tors Inc 260 NLRB 1220 (1982)
I am also mindful of the Courts admonition to triers
of fact that they need not be na ve in judging Respond
ent s motives such as terminations where as here it at
tacks the technical ability and personal conduct of em
ployees with otherwise unblemished records whom it re
peatedly rehired See Shattuck Denn Mining Corp v
NLRB 362 F 2d 466 (9th Cir 1966)
I further conclude and shall recommend to the Board
therefore that the Regional Director for Region 11 was
correct and supported by a preponderance of the credi
ble evidence in setting aside the settlement agreement he
entered into with Respondent on January 8 1981 be
cause of Respondents serious continuing subsequent
unfair labor practices in February and March 1981 The
subsequent 1981 unfair labor practices particularly the
March 26 1981 layoffs of Rickard and Hardison are
closely related to each other and indeed are closely re
lated to and flow directly from the March 20 1980 un
lawful terminations which in large part were the sub
stance of the settlement I thus reaffirm my order of De
cember 30 1981 in which I concluded that the inclusion
of the March 26 1981 Rickard termination to be closely
related in time place and other circumstances to the
Hardison layoff of the same date wherein the Handson
layoff was the subject of the Charging Party s timely
charge The inclusion in the complaint of Rickards un
lawful termination was therefore proper See Wallace
Corp v NLRB 323 US 248 (1944) NLRB v Central
29 Respondents postsettlement dealings with Hardison show continued
union animus
DAVIS ELECTRICAL CONSTRUCTORS
Power & Light Co 425 F 2d 1318 1321 (5th Cir 1970)
NLRB v Dinion Coil Co 201 F 2d 484 (2d Cir 1952)
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found occurring in connec
Lion with Respondents business have a close intimate
and substantial relationship to trade traffic commerce
among the several States and tend to lead to labor dis
putes burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act
V THE REMEDY
Having found that Respondent engaged in various un
lawful threats terminations and other similar conduct I
shall recommend that the Board issue an Order proscrib
ing such conduct confirming the setting aside of the Jan
aury 8 1981 settlement agreement and revoking Judge
Ries approval of the settlement and withdrawal of the
complaint
Having found that Respondent on March 20 1980
unlawfully terminated the employment of Elwood Har
dison Gene Townsend and Charles P Rickard I shall
recommend that in the future it not only cease and
desist from such activity but in the case of Townsend
Hardison and Rickard commencing with their unlawful
terminations of March 20 1980 30 direct that Respondent
offer them substantially equivalent positions of employ
ment without loss of seniority or other rights and make
these three employees whole for any wages or other ben
efits they may have lost as a result of the discrimination
against them for the period commencing March 20 1980
and ending with Respondents offers of unconditional re
instatement in accordance with the formula set forth in
F W Woolworth Co 90 NLRB 289 (1950) 31 Any inter
vening and interim earnings including settlement moneys
received from Respondent commencing March 20 1980
until respective offers of reinstatement by Respondent
may be determined in compliance proceedings if neces
sary
I shall also recommend the rescinding and removing of
the two unlawful February 24 1981 reprimands to Har
dison and all the unlawful terminations of Hardison
Rickard and Townsend In view of my conclusion that
the Regional Directors setting aside the January 8 1981
settlement agreement was proper and in the absence of
any evidence supporting the allegation of the unlawful
termination on March 20 1980 of Jessie Paul Watkins
for whose absence the General Counsel offered no expla
nation I shall recommend to the Board that the allega
tions of the amended complaint relating to the unlawful
termination of Jessie Paul Watkins on March 20 1980
but dismissed as unproven 32 Respondent contends that
30 Any prior offers of reinstatement or waivers of such offers by the
discnminatees here were products of the now set aside settlement and are
rendered ineffectual thereby
31 See generally Isis Plumbing Co 138 NLRB 716 (1962) Florida Steel
Corp 231 NLRB 651 (1977)
38 The General Counsel in its posttnal brief in the event the settle
ment agreement as here is vacated moves to withdraw the allegation of
the consolidated complaint relating to Watkins and to reinstate so much
of the settlement agreement regarding Watkins The motion is denied as
135
in accordance with the settlement agreement here set
aside it paid considerable sums of money to Watkins in
settlement of his claim for backpay and has timely raised
the question of the disposition of those funds the pay
ment of which the General Counsel approved Respond
ent suggests and I recommend issuing an order where
the funds paid to Watkins be returned to it Of course if
the Regional Director has not yet paid over the funds to
Watkins he should return such moneys to Respondent
Cf Steve Aloi Ford Inc 190 NLRB 661 (1971) If the
moneys have been paid over Respondent desires return
of the moneys regardless of the identity of the donor
Although it is true that the courts have continually re
minded the Board that it is a Board function to fashion
remedies appropriate to the Boards statutory mission
and function of remedying unfair labor practices I have
found no authority and Respondent has failed to cite
any authority where I should issue such an order More
over it is reasonably certain that I have no personal ju
risdiction over Watkins (he was not a Charging Party
and never appeared in the prior hearing) to direct him to
return the money and since the Regional Director ap
parently does not have the money I am at a loss to un
derstand how I can direct the Regional Director to
return money which he does not have Nor does it
appear that because the Regional Director may have in
sisted as the price of his joining in the settlement that
Respondent pay moneys as backpay to Watkins the Re
gional Director should be held liable if on the Regional
Directors application the Board sets aside the settle
ment Even viewed from the point of view of a private
equitable solution (since Respondent might view the
Board s action respecting Watkins to be similar to a pn
vate recision of the settlement agreement a position
which however may not apply to statutory transactions
of this type) it is not the Regional Director who has
caused a breach of the agreement but Respondent Thus
I perceive no legal or equitable basis for ordering return
of the funds by the Regional Director Watkins has
never appeared before me nor apparently in the pro
ceeding before Judge Ries I therefore conclude that in
the absence of precedent from the courts and the Board
or the statute and in the absence of any personal ,juns
diction over Watkins I believe myself to be without au
thonty to direct the Regional Director to reimburse Re
untimely The General Counsel offered no reasons either for Watkins ab
sence as a witness or for the failure to prove his allegedly unlawful
March 20 1980 termination Respondent pleaded its denial and was pre
sumptively ready and willing to support its defense The General Coun
sel s application to partially withdraw comes only after all the evidence
was offered its failure to support its pleading and Respondent rested in
face thereof Respondent is surely entitled to finality of adjudication on
Watkins on such a record The General Counsels citation of Shurtenda
Steaks Inc 161 NLRB 957 968 at fn 23 (1966) as authority for partial
withdrawal of settlement is not to the contrary for there unlike here
those elements of the partially set aside settlement agreement that the Re
gional Director desired to save from litigation were left undisturbed
apparently not included in the complaint and in any event were not of
fered for litigation (other than for inclusion to show chronology) Here
Watkins was at all times included in the complaint by the Regional Di
rector and as far as Respondent knew the General Counsel would all
through its case confront Respondent with evidence supporting the al
leged unlawful Watkins termination The General Counsels motion
comes too late and is denied
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent or to direct the repayment of moneys from an
alleged discriminatee to whom Respondent has paid
money under a settlement agreement subsequently set
aside Whether Respondent has remedies in the state or
Federal courts against Watkins are matters with which I
need not deal
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed33
ORDER
The Respondent Davis Electrical Constructors Inc
Leland North Carolina its officers agents successors
and assigns shall
1 Cease and desist from
(a) Discharging laying off issuing unlawfully motivat
ed reprimands to or otherwise discriminating or retaliat
ing against employees because they engage in activities
on behalf of North Carolina State Building 7 Construe
tion Trades Council AFL-CIO (the Union) or any
other labor organization or because they appear at hear
ings of the National Labor Relations Board or because
they engage in concerted activities protected in Section 7
of the Act
(b) Creating the impression among its employees that
their union activities are under surveillance threatening
employees with discharge or that they would never
work again for Respondent or any other employer be
cause they engaged in activity on behalf of the Union or
any other labor organization in order to discourage their
support for the Union or any other labor organization
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and full reinstatement to Gene
Townsend Elwood Hardison and Charles P Rickard to
their former jobs or if those jobs no longer exist to sub
stantially equivalent positions of employment without
prejudice to their seniority or other rights or privileges
and make them whole with interest for any loss of earn
ings that they may have suffered as a result of Respond
ent s discrimination against them commencing March 20
1980 in accordance with the provisions of the remedy
section above
(b) Rescind its two written February 24 1981 repri
mands to Elwood Hardison and remove from its records
all memoranda of or reference thereto and remove from
33 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 put
poses
its files any references to the March 20 1980 and March
26 1981 terminations respectively of Gene Townsend
Elwood Hardison and Charles P Rickard and notify
each of them in writing that this has been done and that
evidence of these unlawful terminations will not be used
as a basis for future personnel actions against any of
them
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Leland North Carolina facility copies
of the attached notice marked Appendix 34 Copies of
the notice on forms provided by the Regional Director
for Region 11 after being signed by the Respondent s
authorized representative shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material 35
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
Having found above that as alleged in Case 11-CA-
9806 Respondent by its March 26 1981 discharges of
Hardison and Rickard violated Section 8(a)(3) and (4) of
the Act and that such serious unlawful conduct was a
repetition of similar unlawful Respondent conduct of
March 20 1980 relating to the same employees and also
violated the terms of a settlement agreement prohibiting
Respondent from engaging in such conduct which
agreement was entered into by Respondent and ap
proved by Administrative Law Judge Bernard Ries on
January 8 1981 it is my further Order that the settle
ment agreement in Case 11-CA-9018 of January 8
1981 between the Regional Director Region 11 Re
spondent and the Union approved by Judge Ries on Jan
uary 8 1981 be set aside and that Judge Ries April 8
1981 order granting the General Counsels April 1 1981
motion to withdraw the complaint in Case 11-CA-9018
be similarly set aside
34 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
96 The fact that Respondent posted notices which in part covered the
material here is not dispositive of a further obligation to post In fact the
notices posted pursuant to the now set aside settlement agreement on Jan
uary 8 1981 were not the same as those here nor did they cover the
same unfair labor practices