Hargett'S Telephone Contractors Inc

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 644 (N.L.R.B. 1990)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hargeft's Telephone Contractors Inc and Interna- tional Union of Operating Engineers, Local 465, AFL-CIO Case 11-CA-12920 Janaury 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 29, 1989, Administrative Law Judge Lawrence W Cullen issued the attached decision The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in answer to the General Counsel's exceptions The National Labor Relations Board has delegat ed its authonty 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, findmgs, 1 and conclusions 2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed 1 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an admimstra tive law Judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for re versing the findings 2 In adopting the judge s dismissal of the surveillance allegation we rely on the Judge s credibility resolutions regarding Foreman Phillips conversation with employee Cunningham and on the Judge s statement that no additional evidence of surveillance was presented by the General Counsel Contrary to the judge however we note that the General Counsel s postheanng brief did specifically argue that Phillips conversa non with Cunningham constituted both unlawful interrogation and sur vollance by Phillips Pans Favors and Donald R Gattalaro Esqs , for the Gen eral Counsel J Howard Daniel and Terry A Clark Esqs (Haynsworth Baldwin Miles Johnson Greaves di Edwards) of Greenville South Carolina, for the Respondent DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN Administrative Law Judge This case was heard before me on April 3 and 4 1989 at Georgetown South Carolina The heanng was held pur suant to a complaint issued by the Regional Director of Region 11 of the National Labor Relations Board (the Board) on October 25 1988 1 The complaint is based on 1 All dates are in 1988 unless otherwise designated 297 NLRB No 100 a charge filed by the Charging Party International Union of Operating Engineers, Local 465 AFL-CIO (the Union) on August 26 1988 and alleges that Hargett s Telephone Contractors Inc (the Respondent) has unlaw fully interrogated its employees concerning their union activities and created the impression among its employ ees that their union activities were under surveillance both in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) and has unlawfully discharged and thereafter failed and refused to reinstate its supervi sor Randy Dennis because he refused to commit unfair labor practices and in order to discourage its employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection in violation of Section 8(a)(1) of the Act and that it dis charged and failed and refused to reinstate its employee Willie Lee Cunningham because he joined or assisted the Union and engaged in concerted activities for the pur pose of collective bargaining and mutual aid and protec tion in violation of Section 8(a)(3) of the Act Respond ent has by its answer filed on November 2 1988, denied the commission of any violations of the Act In addition the General Counsel contends that an additional 8(a)(1) violation should be found based on testimony of former supervisor Randy Dennis, during cross examination that Respondent s president, Ron Hargett, asked employees whether they had signed a union card dunng a meeting he conducted among his employees regarding the Union On the entire record in this proceeding including my observations of the witnesses who testified herein, and after due consideration of the briefs filed by the parties I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION A The Business of Respondent The complaint alleges Respondent admits and I find that the Respondent is and has been at all times material herein a South Carolina corporation with a facility lo cated at Rock Hill South Carolina where it is engaged in cable installation in and around Georgetown South Carolina, and the Pamplico 2 South Carolina area that during the 12 months prior to the filing of the complaint a representative period of all times material herein Re spondent received at its Rock Hill South Carolina facili ty goods and raw materials valued in excess of $50,000 directly from points outside the State of South Carolina and shipped from its facility in Rock Hill South Carol' na products valued in excess of $50,000 directly to points outside the State of South Carolina Based on the foregoing I find that Respondent is now, and has been at all times material herein an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act 2 The transcnpt is hereby corrected to reflect that the word Pam paco is Pamplico HARGETT'S TELEPHONE CONTRACTORS 645 - B The Labor Organization The complaint alleges, the Respondent admits and I find that the Union is now and has been at all times ma- terial herein a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACT10ES3 The Union commenced an organizational campaign in June The campaign was conducted by Union Business Representative Johnny Lambert who contacted Re- spondent's construction and operating employees in the five state area in which Respondent operates as a sub- contractor for several utility customers for whom it is engaged in the laying of new telephone cable Lambert testified that in July 1988 he approached George "Preacher" Phillips, a foreman working in the Respond- ent's Pamplico, South Carolina area and identified him- self as a union organizer and asked whether he could talk to the work crew Phillips told him he could talk to them on their own time and then left for lunch Lambert then talked to the crew of employees during their lunch- break and obtained their signatures on union authonza- tion cards The crew was made up of four men, Willie Lee Cunningham, Leroy and Matthew Chandler (two brothers) and James McClary Cunningham was the first to sign a card and was the most outspoken in favor of the Union at the meeting, contending that he was under- paid and that there were good and bad unions Respondent's president, Ron Hargett, became aware of the Union's campaign in July Hargett, who is a licensed attorney, testified that upon learning of the union cam- paign he reviewed his labor law book, contacted legal counsel and distributed a list of do's and don'ts for his supervisors and foremen Hargett devoted the next two weeks to meeting with all of his supervisors and foremen and telling them how to handle themselves during the campaign and meeting with employees According to Hargett as corroborated by his area supervisor, Fred Windell, his former regional supervisor, Grant Stevens, and foreman George Phillips he gave each of the fore- men a list of "Tips" which informed the supervisors and foremen they should not "threaten" or "interrogate" or make promises" to or "spy" on employees concerning their union activities He also told the foremen they could listen if employees brought up the subject of unions and should inform them that the Respondent did not feel the Union was necessary for the employees or in the best interest of the Respondent In addition Hargett held meetings of the unit employees at various work headquarters and told them that he thought the Respond- ent had made a lot of improvements and that the Re- spondent did not believe a union was necessary for the employees or in the best interest of the Respondent Willie Lee Cunningham who had been employed as a laborer on one of Respondent's crews since January testi- fied that on one occasion in June or July his foreman, George "Preacher" Phillips told him he had heard "I was having a meeting" and wanted to know "when and 3 The following Includes a composite of the credited testimony of the witnesses at the hearing where was it" Cunningham said he did not know any- thing about it although a union meeting was scheduled for that evening in Kingstree, South Carolina In July and August Hargett held meetings with his foremen and employees at the Respondent's various headquarters He met with the foremen at the Georgetown headquarters and later that day with all of the employees in two sepa- rate shifts in a trailer because of the large number of em- ployees in attendance Prior to and during the course of these meetings, Union Representative Johnny Lambert was stationed outside of the yard of the headquarters on the public road outside the entrance drive and was hand- ing out union pamphlets to which were attached union authorization cards to employees entering the headquar- ters Lambert was visible from the yard During the course of these meetings Hargett told the employees that if they felt they needed a raise they should contact their supervisors or foremen After the meeting Cunningham expressed his displeasure to his foreman, George Phillips as Hargett had used the figure of $5 per hour and Cun- ningham was only making $4 50 per hour Phillips testi- fied that Hargett had only used $5 as an example and told Cunningham that any raise would need to be earned Cunningham testified he then said "to hell with it, I'm going to go Union" and then walked to Lambert's car and took several pamphlets and union cards from Lambert to have them signed by other employees Lam- bert corroborated Cunningham's testimony that he had given Cunningham several cards at this time Phillips denied that Cunningham had made the statement to him concerning going union or that he had observed Cun- ningham go to Lambert's car and get the pamphlets or cards He further denied any knowledge of Cunmngh- am's union activities Other members of management in- cluding Hargett also denied seeing Cunningham with Lambert Cunningham was discharged by Phillips, Cunningham testified that on a Monday he picked up Matthew Chan- dler in the company truck that he was assigned to for purposes of driving the crew to and from work and that Leroy Chandler and James McClary did not go in that day Cunningham testified further that after he and Mat- thew Chandler arnved at Poston Corner, Phillips said he was supposed to "fire all of you but, Willie you're fired" and that Phillips said he was fired because he was a "union instigator" Cunningham's testimony was cor- roborated by Matthew Chandler who is a friend of Cun- mngham's and who lived in the same apartment complex with Cunningham at the time and who along with his brother had originally taken Cunningham in to be em- ployed by Respondent Matthew Chandler no longer works for Respondent, having ceased employment there in October Matthew Chandler testified that Phillips told them he was told to fire the entire crew by Grant Ste- vens, the area supervisor, but that Phillips did not fire the entire crew but only fired Cunningham and assigned as the reason therefore that Cunningham was "boosting4 4 The transcript at 1 4 on p 65 is corrected to read "boosting" Instead of ' boasting" 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the union up in Kingstree (A reference to a town where most of the crew lived ) Cunningham testified that Phillips then arranged for another employee to drive him home and that he then called Rock Hill (Respondent s headquarters) and talked to Ron Hargett Respondent s president and told Har gett that he had been fired and wanted his money Har gett asked why he had been fired and Cunningham told him that Phillips had told him he was fired because he was a union instigator Hargett told Cunningham he would call Grant Stevens the area supervisor and find out Hargett called him back around 12 (noon) and said that Cunningham was fired for using the company truck and drinking but did not give him any details He told Cunningham he could pick up his money at Western Union the next day In the telephone conversation Cun ningham denied he had been dnnkmg and told Hargett he could prove it Cunningham said he was supposed to have dnven the truck on a Thursday night Hargett also told Cunningham that Esau Dennis (no relation to Randy Dennis the supervisor who was discharged) did not want him back on the job Esau Dennis is an inspector for General Telephone (GTE) who is charged with overseeing the work performed by Respondent for GTE Cunningham testified he had never cussed Esau Dennis out as hereinafter contended by Respondent Cun mngham who is black, testified he had not been particu larly friendly with Esau Dennis who is white and whom Cunningham contended is racially prejudiced and had made comments to Cunningham that he was going to meetings and tying knots, which Cunningham con tended at the hearing was refemng to the KKK (Klu Klux Klan) Cunningham also testified that he had never had an argument or fight with Esau Dennis and that Dennis was frequently talking about what he knew from the service In Cunningham s view, this referred to Esau Dennis ability to fight Cunningham also denied that he talked to Grant Stevens about his discharge Cun ningham further testified on cross examination that he had been assigned a truck to take the crew to and from home and the jobsite as he had a dnver s license Cun mngham testified he had used the truck on personal busi ness on only one day in February or March with the permission of a supervisor Mike Roberts to whom he had formerly reported With respect to the matters testified to by Cunningham and Chandler the Respondent elicited testimony from its foreman George Phillips its former regional supervisor Grant Stevens, GTE Inspector Esau Dennis Respond ent s president Ron Hargett and Respondent s area su pervisor, Fred Windell Hargett testified that Respondent is a contracting company that performs engineering and construction work for operating telephone companies in seven of the states (not counting Flonda) in the south eastern region of the United States with about 500 em ployees evenly distributed throughout the four states of Georgia, North Carolina, South Carolina, and Alabama The management structure is composed of Hargett as president and three other levels of management the area supervisors who report to Hargett the regional supervi sors who report to the area supervisors and the foremen who report to the regional supervisors George Preacher Phillips, who testified he is a part time preacher testified that the first time he knew of Cunningham s involvement with the Union was 2 weeks after his discharge of Cunningham when he was called to the scene of an accident in the King Street area at which time he found that employee James McClary had wrecked a company truck and when he asked McClary what he was doing with the Company truck in the off duty hours of 9 to 10 p m McClary told Phillips he was attending a union meeting at Cunningham s house Esau Dennis who is employed as a GTE Inspector and has been employed by GTE for over 20 years and a member of the International Brotherhood of Electncal Workers (IBEW) for 20 years testified that on Thursday July 28 he told the crew consisting on that day of Cunningham and the two Chandler Brothers to make some drops This refers to the laying of underground cable by dig gmg holes or trenches and laying the cable therein for their attachment to the customers premises by a GTE crew which follows Respondent s crews after they have put down the cable Esau Dennis testified that three drops needed to be placed on that date in order that the GTE cut over crew could connect the customers up to service He took Respondent s crew consisting of Cun mngham and Leroy and Mackie (Matthew) Chandler to jobsite 51 and 66 and told them to bury the drop line and that GTE would be responsible as they were then unable to locate the customer He then left to check on another crew and on his return he found the crew was gone and the drop had not been placed He then went down the road and saw the crew at a store and told them if they did not place the drop, he did not need them anymore Esau Dennis testified that they then went back to the jobsite with Cunningham driving the truck and that Cun mngham parked the truck half in and half out of the road and jumped out of the truck with his shirt pulled down over his shoulders opened the door on the highway and said mother fucker you all can t be telling me what to do I m a grown man Esau Dennis testified as he ap proached Cunningham and got as close as within 3 feet he smelled alcohol on his breath He also observed that Cunningham was stumbling and unsteady and that his speech was slurred and concluded that he had been dnnkmg alcohol although he did not observe any alco hol in his possession He did not smell alcohol on Mat thew or Leroy Chandler Esau Dennis also testified that he then showed the employees where the drop to the house should be placed He also then observed Cun mngham dnve the truck in a jerking manner down the road as the wire was being released and jerking Mackie (Matthew Chandler) down the road Mackie yelled fool stop and Cunningham then slowed down Esau Dennis testified he then went to another jobsite where Phillips was At the time Phillips was responsible for four crews Phillips came to the jobsite at which Cunningham was and in the presence of Esau Dennis asked Cunningham whether he had been dnnking and Cunningham said he had not been dnnlung Cunningham did not have his hard hat or shirt on although both are required under GTE s and Respondent s safety rules The crew worked until 5 30 (p m) and the drop was HARGETT'S TELEPHONE CONTRACTORS 647 completed except for a piece which was to be completed in the morning He saw Cunningham the next morning on route 66 with Phillips "talking with them" Esau Dennis told Phillips to get rid of the whole crew but changed his mind and told Phillips Just to get rid of Cun- ningham who had been the one who had been "Cussing me out on the job and I Just wasn't going to put up with that" Phillips then gave Cunningham the option of re- turning to his original supervisor as he was not needed in this area inspected by Esau Dennis Cunningham said, "I'll quit before I go back to Terry McCardle" (his origi- nal supervisor) This occurred at about 10 30 or 11 a m on Friday morning by Jethro's Store on 66 off of high- way 378 At this point the crew cleaned up one drop and Phillips sent them home Esau Dennis denied ever having made any references to or threats of physical harm to Cunningham or any references or threats con- cerning the tying of knots or taking him to a meeting George Phillips who had been employed as a foreman in July supervising over four crews consisting of about 12 employees in the Pamplico area, testified that on Thursday afternoon, Esau Dennis came to his job about 3 or 4 miles from the crew on which Cunningham was working and told him that Cunningham was drinking and there were problems he should check Phillips then called the area supervisor, Grant Stevens, and told him that Esau Dennis was sure Cunningham was drinking Stevens told Phillips that if Cunningham was drinking he would have to let him go Phillips then went to the job- site where Cunningham was in the truck Cunningham got out of the truck with his shirt partly off and no hard hat Phillips told him he could not use him in his condi- tion He observed that Cunningham could not walk, was unsteady in his movements and observed the smell of al- cohol on his breath while within an arm-and-a-half s reach of him, and said, "Willie, I'm not going to be able to use you and you drinking, you know what the rules are And he Just, said, why you all white people always down on me all the time, you all got all the money and all the—and I said, Willie, the rules go for everybody They don't just go for one person" Cunningham contin- ued talking about an unrelated matter and Matthew and Leroy Chandler were continuing to work and Phillips left, as it was late and he was involved in putting in a large cable job on the other worksde Phillips testified that the next morning he met Esau Dennis at Jethro's grocery and Esau Dennis told him he could not use that crew and about that time Cunningham and Matthew and Leroy Chandler arrived in the pickup truck as James McClary was out that day He then called the employees off to the side and told them he could not use them any- more because GTE had requested it The employees pro- tested that they needed the work At that point Esau Dennis said if Cunningham were moved, they could use the rest of the crew Phillips then told Leroy and Mat- thew Chandler to come back Monday and to have James McClary drive the truck Cunningham then said he wanted his job Phillips asked Cunningham who had hired him and Cunningham said Terry McCardle had hired him Phillips then offered to call McCardle and see if he could use Cunningham Cunningham said he would quit before he worked for McCardle and Phillips told him he would have to make his own decision but he could not use him in this area Phillips testified further that on the following Monday, Cunningham came into work again and he took Cunningham to the side and told him he could not use him in this area and had another employee drive him home Phillips further testified as did Esau Dennis that an- other employee, James McClary, had told them that Cunningham had been drinking on the job Phillips and former Regional Supervisor Grant Stevens both testified that as a result of this report Stevens had met with the entire crew in a general safety meeting and told them there was to be no dnnking on the job and that if they drink on the job or were under the Influence they would be discharged President Ron Hargett testified that on Monday, August 1, he received a telephone call from Cunningham who told him he had been fired and he needed his money and inquired whether there was a review process Hargett told him to take it up with Grant Stevens who would review the decision and that he would review Stevens' decision He later called Stevens who then talked to Cunningham and Stevens later told him that he would uphold the decision to discharge Cunningham for three reasons, "that he had cussed out a GTE inspector, Esau Dennis, he suspected he'd been drinking on the job and that he had used the vehicle on unauthorized time" Stevens, who is now self employed in his own business as a contractor for cable TV companies and who has no business relationship with nor receives any business from Respondent, testified that Hargett called him after he had told Phillips to fire Cunningham and that Hargett told him that he (Stevens) needed to do a review of the matter Stevens talked to Cunningham that night who denied having been drinking on the job and told him he had "cussed that damn Esau out I'm a forty year old man and I'm—I can do what I want to do" Stevens also asked him whether he had driven the company truck and Cunningham stated that he had driven the company truck one time Stevens then told Cunningham that the decision stood and that he was fired and then called Har- gett to confirm this Cunningham denied having had a conversation with Stevens about this matter Hargett and Fred Windell, the regional supervisor, testified concern- ing a number of employees who had been discharged or transferred because of drinking on the job or insubordi- nation Analysis I find that the General Counsel has failed to establish a prima facie case of a violation of the Act by the alleged interrogation by Supervisor George Phillips and by the alleged surveillance by Phillips and by the discharge of Cunningham I make this determination on credibility grounds after having observed the witnesses on the stand and after a review of all the facts including the position statement of Respondent and the affidavit of Hargett which are relied on by the General Counsel as evidence of inconsistencies in Respondent's proffered defense At the outset I have also relied on the demeanor of the wit- nesses in this case I found Cunningham's manner on the 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stand to be argumentative and somewhat rambling While it is possible that this argumentative manner could stem from the perceived injustice of his discharge, I found it consistent with the conduct attributed to him by Esau Dennis and Phillips Moreover, I found Phillips to be a candid witness who testified in substantial detail as to what occurred concerning the discharge of Cun- ningham I also found the testimony of Esau Dennis to be specific and credible It may well be that Esau Dennis and Cunningham had not had the highest regard for each other in the past and that ill will may have been ex- pressed between them However, I find that the incident testified to by Esau Dennis appears genuine and I do not find that it was fabncated by Dennis to bolster support to fire a union adherent I also find worthy of note that Esau Dennis is a 20 year member of the IBEW and con- sider it unlikely that he would be part of a plot to dis- charge a union adherent I also find the testimony of Ste- vens, Hargett, and Wmdell to be sincere and credible With respect to the alleged interrogation by Phillips of Cunningham concerning the union meeting I credit Phil- lips that he did not know of Cunningham's involvement and his implicit denial of having engaged in this alleged interrogation With respect to the allegation of surveil- lance by Phillips, no additional evidence was presented by the General Counsel, nor is it specifically argued in its brief and I accordingly find that this allegation must fail for want of proof I also credit Phillips that he did not tell Cunningham that he was being discharged be- cause he was a union instigator as testified to by Cun- ningham or as testified to by Matthew Chandler because he was "boosting the Union" However, assuming that he had made this statement and that this establishes a prima facie case, I find that it has been rebutted by a pre- ponderance of the evidence in view of the credited testi- mony of Esau Dennis, Phillips, Stevens, Hargett, and Wmdell and that Cunningham would have been dis- charged even in the absence of his engagement in pro- tected concerted activities on behalf of the Union Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) I have reviewed the inconsistencies in the position statement of Respond- ent concerning the date of the incident between Esau Dennis and Cunningham and credit the testimony of Esau Dennis that this incident occurred on July 28 B The Alleged Interrogation by Hargett of the Employees at the Meeting in the Company Yard at the End of July This interrogation was not alleged in the complaint but was first brought out in the cross-examination of alleged discnmmatee former Supervisor Randy Dennis Randy Dennis testified that at the meeting held by Ron Hargett, Respondent's president, in the company yard at the end of July that Hargett asked the employees if they had signed union cards Specifically Randy Dennis testified that Hargett wanted to know who had signed union cards Hargett denied on the stand that he had made this statement although he admitted telling the employees that he did not think the Union was in their best interest, reviewing improvements that had been made and men- tioning union authorization cards Randy Dennis' pretrial affidavit made no reference to this alleged statement by Hargett and it was not until his cross-examination that he volunteered this statement I do not credit Dennis' testi- mony that Hargett made this statement Rather I credit Hargett's testimony that he did not make such a state- ment Hargett, who is a graduate lawyer and licensed attor- ney, testified in detail that he reviewed his labor law course material which course he had taken recently in law school and consulted legal counsel and distributed a list of do's and don'ts to the supervisors and foremen for dealing with employees during the union campaign called TIPS—(Do not threaten, interrogate, promise, or spy) Hargett testified this information was reviewed with the supervisors and foremen who were given a copy thereof Hargett's testimony concerning this was corroborated by Foreman Phillips and by Managers Ste- vens and Wmdell I found Hargett to be a credible wit- ness who testified in a clear and sincere manner I also found Phillips, Stevens, and Windell to be credible wit- nesses My review of the testimony of Randy Dennis concerning this incident gave me the distinct impression that this volunteered statement by Randy Dennis was an afterthought at best and I do not credit it I accordingly find that Hargett did not unlawfully interrogate his em- ployees at the company meeting held in the yard at the end of July C The Termination of Randy Dennis Randy Dennis was a foreman who had the status of a statutory supervisor with the authority to hire and fire Randy Dennis became interested in the Union and at- tended a union meeting in July as did Foremen Vernon Sears and Herbert Butler On August 8 Hargett came to the headquarters to meet with employees and foremen During the late morning Foremen Vernon Sears and Randy Dennis were both brought into separate individ- ual meetings with Hargett, Area Supervisor Fred Wm- dell, and Regional Supervisor Grant Stevens Hargett testified, as corroborated by Wmdell and Stevens, that in each of these two meetings Hargett told Sears and Randy Dennis respectively, who were believed to be sympathetic to the union campaign, that they were statu- tory supervisors under the National Labor Relations Act and that he had a right to and did demand 100-percent loyalty to the Company in the union campaign This tes- timony was corroborated by Vernon Sears in the meet- ing he attended Hargett, Windell, Stevens, and Sears all testified that Sears had reservations about making this commitment and was given until Friday to decide He subsequently decided a day or two later and informed Hargett that he was 100 percent behind the Company in the union campaign Randy Dennis testified that when he was called into this meeting Hargett, after advising him of the various Do's and Don'ts, told him that he was expected to find out who the union adherents were among the employees and either find a reason to fire them or make it so rough on them that they would quit and that he declined to do this saying he would not do Respondent's "dirty work" and was told to turn in his truck (tantamount to dis- HARGETT'S TELEPHONE CONTRACTORS 649 charging him) and was permitted to return to the jobsite with his operator, ,Glen Elliot, to pick up his tools, tell the men what to do the rest of the day and that Elliot then drove him home Former employee Glen Elliot who now works for Randy Dennis with another employ- er, testified that Randy Dennis told him he had been dis- charged after he left the meeting Conversely Hargett, Windell, and Stevens all testified that at the meeting between them and Randy Dennis that when Hargett told Dennis he could not belong to the Union, Dennis willingly agreed to support the Company 100 percent in the union campaign Wmdell and Stevens both testified that following this meeting Wmdell said "that was too easy" in reference to the apparent agree- ment by Randy Dennis to support the Company based on Wmdell's opinion that Randy Dennis was usually more outspoken and argumentative Stevens and Windell both testified that they first learned of the absence and apparent quit of Randy Dennis the next day when the customer of the job Randy Dennis was assigned to called Windell and was irate that there was no one on the job and that Stevens was then contacted by Wmdell and made arrangements to cover this job as soon as possible Sears also testified that he passed Randy Dennis in the yard on Tuesday morning and that Dennis told him he had quit Dennis denied being on the premises on Tues- day morning Stevens also testified that he spoke with Randy Dennis on Tuesday afternoon at the GTE po- leyard in Georgetown and that Dennis told him that he had talked to his union representative and that Hargett could not put him in the position of having to back him 100 percent or could not fire him if he did not and said he was going to take Hargett to the Labor Board Glen Elliot testified that on Tuesday evening Stevens called him and asked him to give a message to Dennis that he should return to work on Friday which message he gave to Dennis Dennis testified that after receiving this message he returned to work on Friday and met Ste- vens who told him to go to work and that he worked Friday and Saturday but when he appeared for work on Monday Stevens told him that Ron Hargett had talked to his lawyers and that they had recommended against letting Dennis work and that he has not since worked for Respondent Stevens testified that Randy Dennis showed up at the workplace on Friday and told him that the Union had "screwed" him as they had told him they could carry him but now he was without his job and the Union had told him they "can't do a damn thing for me" Stevens testified he needed help on the job and had known Dennis for a long time and that he told Dennis to go to work and worked him Friday and Saturday but told him he would need Ron Hargett's approval Stevens called Hargett who said he would need to check with his law- yers and get back with Stevens Hargett had not under- stood that Stevens had actually put Dennis back to work on Friday and called Stevens the following Monday morning and told him the lawyers had recommended against rehiring Dennis Hargett subsequently was upset when he later learned that Dennis had been put to work on Friday and Saturday by Stevens after Dennis called him in regard to pay for these days Stevens testified that he informed Dennis of Hargett's decision not to reem- ploy him on Monday and that Dennis looked at Stevens to inquire about possible employment with Stevens in his own business as a contractor for cable TV which busi- ness Stevens has since left Respondent for to engage in full time and that Stevens told Dennis to come to his business and he would put him to work but Dennis did not do so Analysis It is well settled that an employer has the right to demand absolute loyalty of its statutory supervisors and may discharge a supervisor for engaging in union activi- ties Parker-Robb Chevrolet, 262 NLRB 402 (1982), affd sub nom Automobile Salesmen's Union v NLRB, 711 F 2d 383 (D C Cir 1983) However, a supervisor is pro- tected by the Act from retaliation by an employer for re- fusing to engage in unfair labor practices Greenbrier Valley Hospital, 265 NLRB 1056 (1982) I find that the testimony of Hargett, Stevens, and Win- dell should be credited I find them to be credible wit- nesses whose testimony was straightforward, well de- tailed, and logical I find It unlikely they contnved their testimony given my review of their demeanor on the stand and the sequence of events as testified to by them Dennis' testimony was essentially uncorroborated with the exception of the testimony of Elliot who testified that Dennis told him that he had been fired on Monday morning and that Stevens told Dennis to return to work on Friday Both of these instances would tend to be cor- roborative of Dennis' testimony but only on peripheral matters concerning Dennis' statement that he had been fired which was based on his own interpretation after he left the meeting and whether Stevens asked Dennis to return to work However I regard as highly unlikely that Stevens would have asked Dennis to return to work only to fire him to somehow further Respondent's plot to dis- charge him I also credit Sears concerning his conversa- tion with Dennis on Tuesday wherein Dennis told him he had quit I also found Sears to be a credible witness who testified in a forthright manner I therefore conclude that the General Counsel has not made a prima facie case that Dennis was discharged, or assuming arguendo that a prima facie case was made, I find it has been rebutted by Respondent by the prepon- derance of the evidence, Wright Line, supra CONCLUSIONS OF LAW 1 Hargett's Telephone Contractors, Inc is an employ- er within the meaning of Section 2(6) and (7) of the Act 2 International Union of Operating Engineers, Local 465, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent did not unlawfully interrogate its em- ployees or engage in surveillance of their union activi- ties 4 Respondent's discharge of Willie Lee Cunningham was not violative of the Act 5 Respondent did not unlawfully discharge its supervi- sor Randy Dennis as he quit of his own accord 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, on these findings of fact and conclusions ORDER of law, I issue the following recommended5 The complaint is dismissed in its entirety 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses