Holder Construction Co.

National Labor Relations Board - Board Decisions

Dec 29, 1998

327 N.L.R.B. 326 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
Holder Construction Company and Russell Gold.
Case 12–CA–17766
December 29, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On September 3, 1998, Administrative Law Judge
William N. Cates issued the attached Bench decision.
The General Counsel filed an exception and a supporting
brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exception and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Holder Construction Com-
pany, Orlando, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Thomas W. Brudney, Esq., for the General Counsel.
William B. deMeza, Jr., Esq. (Holland & Knight), of Tampa,
Florida, for the Respondent.
Glenn J. Paul, Esq. (James, Zimmerman, Paul & Huddleston),
of Miami, Florida, for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
wrongful discharge case. At the close of a 2-day trial in Or-
lando, Florida, on August 10 and 11, 1998, I rendered a Bench
Decision in favor of the General Counsel (Government) thereby
finding a violation of 29 U.S.C. § 158(a)(1). This certification
of that Bench Decision, along with the Order which appears
below, triggers the time period for filing an appeal (“Excep-
tions”) to the National Labor Relations Board I rendered the
Bench Decision pursuant to Section 102.35(a)(10) of the Na-
tional Labor Relations Board’s (the Board) Rules and Regula-
tions.

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by discharging employees Gold and
Shirley because they engaged in protected concerted activity. The
General Counsel, however, excepts to the judge’s failure to provide a
remedy requiring the Respondent to offer reinstatement to the two
discriminatees. The General Counsel concedes that reinstatement was
not sought at trial, but argues that the Board may impose a remedy not
requested by the General Counsel pursuant to its authority under Sec.
10(c) of the Act. While the Board possesses broad remedial authority
to ensure that unfair labor practices are remedied, we find no merit in
the General Counsel’s exceptions in this case. At trial, the General
Counsel affirmatively disclaimed any intent to seek reinstatement for
the two discriminatees. Further, Shirley, who was separately repre-
sented by counsel at the hearing, neither objected to the General Coun-
sel’s disclaimer nor excepted to the judge’s failure to include a rein-
statement remedy.
In adopting the judge’s proposed order, we do not rely on the
judge’s finding that the completion of the construction project from
which the employees had been discharged precluded him from ordering
reinstatement. Under Dean General Contractors, 285 NLRB 573
(1987), reinstatement and backpay issues in the construction industry,
as in other industries, ordinarily are to be resolved by a factual inquiry
during the compliance process.
For the reasons stated by me on the record at the close of the
trial, and by virtue of the prima facie case established by the
Government, a case not credibly rebutted by Holder Construc-
tion Company (the Company), I found the Company violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
when on November 13, 1995, it discharged its employee Rus-
sell Gold (Gold), and when on November 20, 1995, it dis-
charged its employee William T. Shirley Jr. (Shirley) because
of their concerted protected activities related to raising safety
concerns with the Company. See: Meyers Industries, 281
NLRB 882 (1986) (Meyers II), enfd. 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988).1 I rejected the Com-
pany’s stated reasons for discharging Gold and Shirley—
namely, that Gold walked off the job and that Shirley had many
job related complaints against him; refused to perform crane
lifting duties for certain crafts (or individuals); or, that he incor-
rectly reported his hours of work and/or that he disrupted cer-
tain concrete testing operations. I concluded the Company did
not demonstrate it would have terminated the two employees in
the absence of any protected conduct on their part. See Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
I certify the accuracy of the portion of the transcript, as cor-
rected,2 pages 371 to 392, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; that it violated the Act in the particulars and
for the reasons stated at trial and summarized above, and that
its violations have affected and, unless permanently enjoined,
will continue to affect commerce within the meaning of Section
2(2) and (6) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Having found the Company discriminatorily discharged its
employees Russell Gold and William T. Shirley Jr., I recom-
mend they be made whole3 for any loss of earnings or other
benefits suffered as a result of the discrimination against them,
with interest. Backpay shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest, as computed in New Horizons for the Retarded, 283
1 In Meyers 11, the Board reaffirmed its definition of concerted ac-
tivity contained in Meyers Industries, 268 NLRB 493 (1984) (Meyers I)
revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 971 (1985).
2 I have corrected the transcript to conform to my intended words,
without regard to what I may have actually said in the passages in ques-
tion.
3 The Government did not seek reinstatement for the two discharged
employees because the project is, as of the trial herein, completed.
327 NLRB No. 68
HOLDER CONSTRUCTION CO. 305
NLRB 1173 (1987). I also recommend the Company, within 14
days from the date of this Order, be ordered to remove from its
files any reference to Gold’s and Shirley’s unlawful discharges
and, within 3 days thereafter, notify Gold and Shirley in writing
this has been done and that their discharge will not be used
against them in anyway. Finally, I recommend the Company be
ordered, within 14 days after service by the Region, to mail4 a
copy of an appropriate notice to employees, copies of which are
attached as “Appendix B”5 to all employees employed by the
Company on its Orange County Florida Courthouse Project
(Orlando, Florida) on or after November 13, 1995, in order that
employees may be apprised of their rights under the Act and the
Company's obligation to remedy its unfair labor practices.
On these conclusions of law and on the entire record, I issue
the following recommended6
ORDER
The Respondent, Holder Construction Company, Orlando,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in protected
concerted activities.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Make Russell Gold and William T. Shirley Jr. whole for
any loss of earnings they may have suffered as a result of the
discrimination against them in the manner described in the
section entitled the remedy.
(b) Within 14 days from the date of this Order, remove from
its files any reference to their unlawful discharge and within 3
days thereafter notify Russell Gold and William T. Shirley Jr.
in writing this has been done and their discharge will not be
used against them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents, for its examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Regional Director of
Region 12 of the National Labor Relations Board, mail copies
of the attached notice marked “Appendix B” (on forms pro-
vided by the Regional Director for Region 12) after being
signed by the Company's authorized representative, to all em-
ployees employed on or after November 13, 1995, by the Com-
pany on its Orange County Courthouse Project.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 12 of the National Labor Rela-

4 I have ordered the notices be mailed to the employees because the
project. as of trial herein, is completed.
5 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
6 If no exceptions are filed as provided by Sec.102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
tions Board sworn certification of a responsible official on a
form provided by the Region attesting to the steps the Company
has taken to comply.

371
APPENDIX A
B E N C H D E C I S I O N
JUDGE CATES: On the record.
Before we go back on the record, let me thank the parties
again for the presentation of the case.
Each of the counsel are a credit to the party they represent.
Whoever wins or loses may not be based on counsel, in my
opinion. It’s merely based on the facts and the law.
It’s always a pleasure to be in Orlando, Florida. And this is
my decision.
The charge in this case was filed by Mr. Russell Gold on
February 28, 1996, and thereafter timely served on the Respon-
dent.
The Respondent, the Company in this case, is a corporation
with its principal office and place of business located in At-
lanta, Georgia, and it has been and is engaged in the construc-
tion industry.
In this particular case, it was involved in the construction of
the Orange County, Florida, Courthouse, located in Orlando,
Florida.
During the twelve month period ending July 31, 1996, the
Company, in conducting its business operations, purchased and
received goods valued in excess of $50,000 at its Orlando, Flor-
ida, job site, directly from points located outside the state of
Florida.
372
During that same twelve month period ending July 31, 1996,
the Company, in conducting its business operations, performed
services valued in excess of $50,000 for various enterprises
located in states other than the state of Florida, and for enter-
prises within the state of Florida, each of which enterprises is
an enterprise directly engaged in interstate commerce.
Based on these facts and the Company’s admission, I find
the Company is an employer engaged in commerce within the
meaning of Sections 2(2), (6) and (7) of the Act.
I find that, at all times material herein, Superintendent Chris-
topher Brogdon, Superintendent Mark Rose, and Assistant Su-
perintendent Andy Rogero, were supervisors and agents of the
Company within the meaning of Section 2(11) and 2(13) of the
Act.
With respect to Mr. Brogdon and Rose, the Company admits
they are supervisors and agents within the meaning of the Act.
The evidence clearly establishes that Assistant Superinten-
dent Andy Rogero meets the requirements of a supervisor and
agent of the Company within the meaning of the Act. And I so
find.
This case centers around the discharge of two tower crane
operators, Messrs. Russell Gold and William T. Shirley, Jr.
The government has contended herein that the two were
373
discharged for voicing safety concerns and/or declining to op-
erate cranes that they perceived to be unsafe.
The Company, on the other hand, contends Gold was dis-
charged for walking off the job, after expressing safety con-
cerns that had been put to rest by the Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
The Company contends Shirley was discharged for so many
complaints against his performance, his refusal to make certain
picks or lifts for certain individuals, and his bumping other
cranes in the operation of his crane.
Before I get to the facts that make up the case herein, let me
briefly describe for you the law that I will be applying in reach-
ing the conclusions that I will herein.
The parties appear to be in agreement that a key or central is-
sue herein is whether Mr. Gold’s leaving work on or about
November the 8th, 1995, was protected concerted activity.
And the legal principle will apply whether or not it is con-
cluded that Mr. Gold walked off the job or whether Mr. Gold
was told there was nothing for him to do, for him to leave the
job.
The Board, in Meyers Industries 268 NLRB 493, a 1984
case, commonly referred to as Meyers I, noted that the concept
of concerted action has its basis in Section 7 of the Act.
The Board pointed out in Meyers I, that although the legisla-
tive history of Section 7 of the Act does not specifically define
concerted activity, it does reveal that
374
Congress considered the concept in terms of individuals united
in pursuit of a common goal.
The statute requires that activities under consideration be
“concerted” before they can be “protected.”
As the Board observed in Meyers I, indeed Section 7 does
not use the term, “protected concerted activities,” but only con-
certed activities.
It goes without saying that the Act does not protect all con-
certed activity.
With the above, as well as other considerations in mind, the
Board, in Meyers I, set forth the following definition of con-
certed activity:
In general, to find an employee’s activity to be concerted, we
shall require that it be engaged in, with, or on the authority of
other employees, and not solely by and on behalf of the em-
ployee, himself.
Once the activity is found to be concerted, an 8(a)(1) viola-
tion will be found if, in addition, the employer knew of the
concerted nature of the employee’s activity, the concerted ac-
tivity was protected by the Act, and the adverse employment
action at issue, for example, as the case herein, discharge, was
motivated by the employee’s protected concerted activity
Meyers Industries, reported at 281 NLRB 882, commonly re-
ferred to as Meyers II, did not purport to change those princi-
ples.
375
Not only am I required to apply what I shall refer to collec-
tively as the Meyers doctrine, I am also required to analyze the
facts in this case under the teachings of Wright Line, reported at
251 NLRB 1083, enforced 622 F.2d 899 (1st Circuit).
And in a subsequent case, NLRB v. Transportation Manage-
ment Corporation, 462 U.S. 393, the Supreme Court reviewed
the Board’s Wright Line test and appeared, as various courts of
appeals have stated, to approve its use in so-called dual motiva-
tion cases.
The Board, in its Wright Line case, indicated that it would
utilize the analytical mode set forth therein on all cases turning
on employer motivation, whether they were Section 8(a)(3)
allegations or Section 8(a)(1) allegations.
Under the Wright Line case, it is the General Counsel’s
threshold burden to, “make a prima facie showing sufficient to
support the inference that protected conduct was a motivating
factor’ in the employer’s decision.”
Accordingly, it would go without saying that lacking such
prima facie showing, the complaint may be dismissed on that
basis alone.
Likewise, it is only when such a showing can be found in the
credible record that it may become necessary to the ultimate
decision, to determine whether the employer has, nevertheless,
made out a Wright Line defense.
376
In other words, has the employer or respondent demonstrated
that the same action it took would have been taken even in the
absence of any protected conduct.
The prosecution, meaning the General Counsel in this case,
must establish the existence of four factual elements to satisfy
its threshold burden under Wright Line, namely protected activ-
ity, knowledge by the employer of the protected activity, ani-
mus on the part of the employer, and adverse action.
If any one of those elements is missing, the government’s
case will fail.
The Wright Line burden of proof imposed upon the General
Counsel may be sustained with evidence short of direct evi-
dence of motivation, for example, inferential evidence arising
from a variety of circumstances, timing, pretext. and the like.
Furthermore, it may be found that where the respondent’s
proffered non-discriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation.
Motivation of animus may also be inferred from the record
as a whole, where an employer’s proffered explanation is im-
plausible or a combination of factors circumstantially support
such an inference.
Direct evidence of animus is not required to support such an
inference.
Now we come to the facts that constitute this case. And
377
let me state, before I address the facts, that the facts that I pre-
sent will be the facts that I consider to be the credible facts in
this case.
If there is testimony that would contradict any testimony that
I credit, I have, even if I do not say so, discredited any contrary
evidence.
I make my credibility determinations to the extent necessary
based not only on demeanor, but on the record as a whole.
The construction project that gives rise to this case involves
the construction of the Orange Country, Florida, Courthouse
and adjacent buildings.
The Courthouse, itself, the evidence reflects, was perhaps a
25-story project, referred to by the parties herein as the tower,
plus 3 buildings that were lower-storied buildings, that is per-
haps only to a height of 5 floors.
In the construction of projects that reach this height, it is
necessary for the building materials, workers, and other matters
to be hoisted to the various levels of the building as it is con-
structed.
And in this project, as with other projects, there were a num-
ber of cranes utilized for that purpose.
The two cranes referred to as the tower cranes were identi-
fied in the record as the SK400 and the SK280.
HOLDER CONSTRUCTION CO. 307
The evidence will show that Mr. Shirley primarily involved
378
himself with the SK400, and Mr. Gold the SK280.
There were various other types of cranes on the project. The
650 ton crane, for example, its boom or long arm for lifting
materials could, when extended. reach heights that would be
primarily the same as the heights reached by the SK400 and the
SK280.
There were several lesser cranes utilized on the project that
moved materials closer to the ground surface.
The case herein primarily involves the SK400 and the
SK280.
One further bit before I get into the facts that take place in
November of 1995. The overriding flavor of this case is perme-
ated by two factors.
One is that the particular construction company herein, the
Respondent, does not, by its practice, appear to generate or
maintain disciplinary records on its employees.
The project superintendents testified that they worked more
as a team and a family, and did not operate, as might be the
case in any other types of industry, where you would have vari-
ous levels of discipline before action was taken against an em-
ployee.
I do not say that in any critical manner. I just simply point
out that this case is permeated by that factor.
Secondly, it appears that the tower crane operators are a
pampered group of employees. I base that on the testimony of
379
Superintendent Rose, Superintendent Brogdon, and Assistant
Superintendent Rogero.
In fact, I think it was Superintendent Brogdon who described
them as prima donnas who sat perched at the top of the con-
struction project and looked down on everything that happened,
and had the power, if they chose by declining to lift products
shut the job down.
Superintendent Rose testified he treated the crane operators
differently because they were hard to find and sometimes diffi-
cult to deal with.
So we have that flavor working its way through the case, in
conjunction with the fact the Company does not compile, main-
tain, or keep disciplinary records on its employees.
The events of November 7 and 8, 1995, and thereafter are
those that must be focused on.
And let me state sort of parenthetically that no explanation
was offered in this record as to why events that took place in
1995 are only now coming to trial. But that is not a misstate-
ment when I refer to events in November 1995, even though
this is 1998.
It appears that during the week of November 1, the cranes
and particularly crane SK280, was getting to where there was
less and less clearance room, because later on in November,
perhaps November the 11th, the SK280 was scheduled to be
jacked up. And in very brief terms, that simply meant adding
380
additional structures under the crane, so that the crane was
lifted to a greater height and had more clearance.
There is no dispute that the clearance room was becoming
less and less as the building got higher to where the crane was,
and this was taking place commencing in the week of Novem-
ber 1.
Matters sort of came to a head on November 7, when Mr.
Gold became concerned about the clearance that the crane he
was operating, the SK280, had, particularly with the counter-
balance matters affixed to one end of the crane.
The crane is essentially and simply described, a vertical ob-
ject with a long horizontal object that extends, has a hook on
one end, goes down, picks up items from ground level or from
the surface, and lifts it onto the project.
In order to keep the crane from tumbling, it has counter-
weights on the opposite end of the lift part of the crane.
And Mr. Gold became concerned of the clearance that he
perceived he had on November the 7th. And he discussed that
matter with, among others, Mr. Shirley.
Mr. Shirley was concerned about the clearance and the mat-
ter was raised with, among others, Superintendent Rose.
On the early morning hours of November 8, 1995, perhaps as
early as 4:00 a.m. on that date, certain steel columns were 24
erected on the topmost level at that point.
And, again, this raises concern with Mr. Gold as to
381
whether or not he could operate his crane in what he perceived
to be a safe manner.
With his conferring with Crane Operator Shirley, they ex-
pressed their concerns as I have indicated to Superintendent
Rose.
Let me go back to the evening of November the 7th. Mr.
Rose, Mr. Gold, and perhaps another individual or two, took
certain measurements to see how much the clearance was.
Those measurements, and Mr. Gold’s and Shirley’s con-
cerns, were relayed to Morrow Crane Service, because the
cranes were owned by Morrow and only on either loan or lease
to the Respondent herein.
Morrow Crane took the information that was provided to
them by Mr. Rose and the measurements, as well as certain
engineering drawings they already had, and determined, sight
unseen, that it was safe to operate the SK280 on, among other
dates, November the 8th.
Additionally, the Company, specifically through Superinten-
dent Rose, and perhaps either directly or indirectly through
Superintendent Brogdon and Assistant Superintendent Rogero,
offered to provide Mr. Gold with a spotter or spotters so that
the spotter or spotters could, by radio, advise Mr. Gold how
close he was to any object in the operation of his crane, or ad-
vise him where he could move the crane so he would not be
over or near items that would be closest to the crane.
382
Mr. Gold explained that he had been, for many years, a crane
operator and that when picking a load from the ground surface,
the crane would bow toward the ground.
And that when the crane was lifted—or the load was lifted
by the hook on the crane to whatever level it was being deliv-
ered to, that when the weight was released from the crane, you
got a see-saw type result that would cause the counterweight
end of the crane to proceed up and down.
And he feared that it was unsafe to operate the crane on No-
vember 8th.
Mr. Gold rectified a spotter would not have been of that
great assistance to him, because he could look around and see,
when in movement, where he was going, but that neither a spot-
ter nor himself could accurately determine what the see-saw or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
recoil motion would be when the weight was taken away from
the crane.
So Mr. Gold declined to operate the crane on November the
8th.
There is a conflict as to what took place on that date with re-
spect to Mr. Gold’s leaving the premises of the Company on
that date.
There is no question Mr. Gold left the premises.
Mr. Gold testified he waited around to see what the result
would be with Mr. Rose and Mr. Brogdon, and that Mr. Rose
was there, but apparently they were not getting an
383
answer, based on Mr. Gold’s testimony, from anyone else.
So with nothing for him to do other than operate the crane,
which he was declining to do, Mr. Rose told him he may as
well go home. And Mr. Gold said he did so.
Mr. Gold contends he called the office of the Company on
Thursday, November 9, and Friday, November 10.
Superintendent Rose, on the other hand, says he did not give
Mr. Gold permission to leave the project, and that Gold simply
walked off the project, and that Gold was terminated at a later
point for his walking off the project.
Going through the items of concerted activity and whether it
is activity protected by the Act or not, and the elements that are
outlined in Meyers, I am persuaded that Messrs. Gold and
Shirley were concerned about and discussed their concerns
about safety, the safe operation of the cranes, and more specifi-
cally the safe operation of the SK280, on or about November 8
or anytime after November 7, until such time as the crane was
jacked up so that it had clearance.
I am persuaded they had concerted activity. The two of them
got together to discuss safety concerns.
Secondly, I am persuaded the discussion of safety concerns
is a matter that is protected by the Act. It is inextricably inter-
twined with working conditions.
Thirdly, did the Company know that these two individuals
and perhaps others were concerned about safety?
384
Yes, it was communicated to the Company. In fact, the
Company took action, made measurements, called Morrow
Crane Company, so they were fully aware that the two employ-
ees in question had joined together and expressed their con-
cerns about the safe operation of the cranes and particularly the
SK280.
Did Mr. Gold walk off the job or was Mr. Gold instructed to,
in essence, go home? You might as well go home till we con-
tact you.
I credit Mr. Gold’s testimony. But let me state that the end
result of this case would have made no difference if I had not
had credited his testimony and had in fact, concluded that he
walked off the job.
The end result would have been the same for these reasons.
Number one, the Company had tolerated Mr. Gold’s walking
off the job on previous occasions. For example, Mr. Gold had
walked off the job in a dispute over a paycheck.
Secondly, Mr. Gold had walked off the job over a dispute he
had with a Marine-type carpenter foreman, that the two of them
couldn’t get along. And I am not addressing who was at fault
there or at fault at all in that case. I’m simply saying the Com-
pany had tolerated his walking off the job in the past.
But further, and perhaps more important, is the testimony of
Superintendent Brogdon, in which he said that even if Mr. Gold
had remained on the job, but had refused to operate the
385
crane after the Morrow Crane people had proven it was safe, he
would have terminated Gold anyway.
So whether he walked off the job or whether he was told to
go home, in the final analysis, makes no difference, although I
conclude he was told to go home.
The Company discharged Gold.
So the four elements, that is he engaged in concerted activity
that was protected by the Act, and as a direct result of that, he
was discharged.
Did the Company establish it would have discharged Gold
anyway for valid reasons? That is did the Company establish
that it, through technical data of the owner of the crane, estab-
lished that the crane could be safely operated and, therefore, it
discharged Mr. Gold for refusing to operate a crane that it had
established was safe?
I find the Company failed in its defense, because the individ-
ual concerned about the safe operation of the crane need not be
absolutely correct in determining it would be unsafe to operate
the crane, but merely that he had good faith reasons to believe
the crane could not be safely operated under the conditions that
he was called upon to operate the crane.
Does it make any difference to this case that a different crane
operator came in and operated the crane under the same cir-
cumstances that Mr. Gold would have operated it without any
problem?
386
The answer is no. The mere fact that another crane operator
could come in and operate it without incident up until the crane
was jacked up is of no great moment.
The evidence here indicates that not only did Messrs. Gold
and Shirley have a concern about the safe operation of the
crane, Superintendent Rose and others did also, because they
were not sure. They called Morrow Crane and pursued it.
So I find the Company violated the Act when on or about
November 13, it discharged its employee, Crane Operator Rus-
sell Gold.
Next, we move to the discharge on or about November 20 of
Mr. Shirley.
There is no question that Mr. Shirley discussed with and pur-
sued safety concerns with Mr. Gold.
The Company was aware of Mr Shirley’s and Mr. Gold’s
concerns involving safety.
The question then moves to whether or not Mr. Shirley was
discharged because he pursued safety concerns, or whether he
was discharged as testified to by the Company’s representa-
tives, specifically Mr. Brogdon, who testified that Shirley was
dismissed because of so many complaints against him, because
of the refusal to make certain picks for certain employees at the
job site, and other conduct attributed to Mr. Shirley, such as his
operation of the crane in a manner that he was, as Superinten-
dent Rose testified, continually hitting cranes; and
387
also that the Company went back through his time records and
concluded he was working one or two hours more than anyone
else, and hence his time records were suspect; and that Mr.
Shirley, in operating the crane, hit other cranes, hit an individ-
HOLDER CONSTRUCTION CO. 309
ual’s hard hat with a hook, and knocked over cylinders that
were being utilized by Universal Testing in testing concrete that
it was mandatory to be tested.
I think it’s essential to look at some of the events that took
place between November 7 and November 20, in very summary
fashion.
November 7 is when as I have earlier stated, Messrs. Shirley
and Gold became concerned about clearance of the cranes, and
their discussions among themselves and with Mr. Rose and
with Mr. Brogdon, and as I recall, Mr. Shirley testified he even
called Morrow Crane to ascertain if the Company had, in turn,
called Morrow Crane.
Then on November the 8th, when Mr. Gold did not work, it
appears that Mr. Shirley did. But I quickly note that Mr. Shirley
was operating the SK400, which was in a different position and
did not have as much clearance problem, at that time.
November the 9th, which was on a Thursday, Mr. Shirley
was not at work, as I understand it, because he had a doctor’s
appointment.
On Saturday, November the 11th, it appears that, based on
388
Mr. Shirley’s testimony, he came in at about 6:00 p.m. to “jack
the crane,” which was meaning the SK280, and on Sunday,
November the 12th, he contends he continued jacking on the
crane, and that he worked thereafter, specifically on Monday, I
guess it would have been, November the 13th, without any
complaints, and that he was then notified on November the
20th, that he-was no longer needed on the project.
The question then becomes as to whether Mr. Shirley was
discharged as a result of the number of factors that the Com-
pany indicates he was discharged or was Mr. Shirley dis-
charged because of his concerted complaints with Mr. Gold
about safety and his and Mr. Gold these separately and jointly
pursuing those matters.
I am persuaded that Mr. Shirley’s discharge was motivated,
in part, by the Company’s distaste for his pursuing the safety
matters with Mr. Gold.
The Company was concerned, specifically Mr. Brogdon, Su-
perintendent Brogdon, that Mr. Shirley had made a comment
that he was going to bring the project to its knees.
And each of the individuals perceived, management indi-
viduals, perceived or believed that Mr. Shirley was behind of,
the instigator of, or at least the encourager of Mr. Gold’s com-
plaining about safety.
Messrs. Brogdon, Rose, and Rogero were all concerned
about the conduct of Mr. Shirley, and the potential that he
might shut
389
the job down.
So I am persuaded the General Counsel established that Mr.
Shirley engaged in concerted activities with Mr. Gold and per-
haps others, that it was conduct concerning safety and protected
by the Act, that the Company knew about it, and that the Com-
pany took adverse action against Mr. Shirley.
Did the Company establish it would have discharged Mr.
Shirley, even in the absence of any protected conduct on his
part?
And I am persuaded the answer to that question is no, be-
cause, among other reasons, the Company says we discharged
Mr. Shirley for various infractions operating the crane.
Well, assume for the sake of discussion that Mr. Shirley did
hit the 650 ton crane with the SK400. It appears that the Com-
pany had tolerated another employee two cranes, perhaps the
same cranes, the SK400 and the 650 ton crane.
Mr. Rose alludes to the fact he smelled alcohol on, I believe
it was, November the 11th, on Mr. Shirley. But even by Rose’s
own testimony, he told him to go ahead and operate the crane
for approximately two hours, while he gave another crane op-
erator a restroom break.
Mr. Shirley’s time records had not been a problem previous
to this.
And the Company had also tolerated Mr. Shirley and other
390
crane operators’ conduct that might not in some other industries
be condoned.
So I am persuaded the government established Mr. Shirley
was discharged for his participation in concerted protected
activities, and that the Company failed to demonstrate it would
have discharged Mr. Shirley in the absence of any concerted
protected activity on Mr. Shirley’s part.
In so concluding, I don’t mean to imply that Mr. Shirley is
an exemplary employee. The evidence would tend to indicate
perhaps otherwise.
He had disagreements with other crane operators. He con-
tends he got trapped between cranes. He took the log book from
the crane, from the SK400, didn’t return it. His comments were
“they didn’t ask me for it.” That totally misses the point.
So I don’t mean to imply that Mr. Shirley is an exemplary
employee. The evidence doesn’t support such a conclusion.
But I need not even reach that to conclude that the evidence,
to my satisfaction, demonstrates the Company took the action it
did against Mr. Shirley because he participated in discussions
with Mr. Gold concerning safety that resulted in Mr. Gold not
working, and the Company perceived Mr. Shirley’s role in all
of this was controlling.
Whether it was or not, the Company perceived that to be the
case.
391
Accordingly, I shall order that the Company cease and desist,
that it make Messrs. Russell Gold and William T. Shirley,
whole for any wages they may have lost as a result of the un-
lawful action against them; that the Company remove from its
records, any reference to their unlawful termination; that the
Company mail an appropriate notice to all employees employed
by the Company at this location, since on or about November 8,
1995.
I do not order that the Company reinstate or offer employ-
ment to Messrs. Gold or Shirley, because the g overnment does
not seek any such remedy.
And it is my understand the government would not be in a
position to seek such a remedy because the Orange county
Courthouse project has been completed.
The court Reporter will provide to me in approximately ten
days, a copy of the transcript and exhibits. And, at that point, I
will certify those pages of the transcript that constitute my deci-
sion to the Board.
It is my understanding that any appeals period that any party
might wish to take would commence to run from the certifica-
tion of my decision. That’s my understanding of the rules.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
I urge you, if you wish to take an appeal or exceptions, that
you follow the Board’s rules and regulations, rather than rely-
ing on my understanding of them.
392
Again, let me thank counsel for their presentation of the
case.
And this trial is closed.
(Whereupon, at 2:45 p.m., the hearing in the above-
entitled matter was concluded.)
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge our employees for engaging in
concerted protected activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL make Russell Gold and William T. Shirley Jr.
whole for any loss of earnings and/or other benefits resulting
from their unlawful discharge less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order, re-
move from our files any reference to their unlawful discharge,
and within 3 days thereafter, notify Russell Gold and William
T. Shirley Jr. in writing that this has been done and that their
discharge will not be used against them in any way.

HOLDER CONSTRUCTION COMPANY