Centex Construction Company, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1108 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Centex Construction Company, Inc. and Anthony S.
Noe. Case 26-CA-8441
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 24, 1981, Administrative Law Judge
Howard I. Grossman issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge, and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'Since we agree with the Administrative Law Judge's conclusion that
Noe was discharged for spending excessive time at the water cooler
away from his work station, we find it unnecessary to pass on his finding
that, prior to his discharge, Noe had been engaged in protected concert-
ed activity.
DECISION
STATEMENT OF THE CASE
HOWARD GROSSMAN, Administrative Law Judge: The
charge was filed on May 19, 1980,t by Anthony S. Noe
(herein Noe or the Charging Party), and a complaint
issued on June 17 alleging that Centex Construction
Company, Inc. (herein Respondent or the Company),
discharged Noe on May 1 because he complained about
safety and other working conditions, in violation of Sec-
tion 8(a)(l) of the National Labor Relations Act, as
amended (herein the Act). A hearing was held before me
on December I in Nashville, Tennessee.
Respondent in its brief included a motion to reopen
the record in order to submit evidence purporting to
show that Noe had been arrested for sale of a controlled
substance, and that Respondent first learned of this when
reading a newspaper story dated February 3, 1981. The
General Counsel opposed the motion.
'All dates hereinafter are in 1980 unless otherwise specified.
258 NLRB No. 145
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of briefs filed by the General Counsel and Respond-
ent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business in Nashville, Tennessee, where it is engaged
in the construction business as a construction contractor.
Respondent annually receives at its Nashville, Tennessee,
facility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Tennes-
see. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. 'Voe's Employment, Original Discharge, and
Reinstatement
Respondent was building a large sewage treatment fa-
cility in Nashville, and Noe was hired as a carpenter on
March 6. He was purportedly fired on April 11 by a su-
pervisor, reinstated, and again fired on May 1, the last
discharge being the one upon which the complaint is
based.
Noe was originally assigned on March 6 to Carpenter
Foreman Joe Carter 2 for work in building 2. On or about
April 9, while Noe was breaking down a wooden
"form," a nail punctured one of his fingers all the way
through, according to Noe. He went to the office, where
a secretary gave him a Band-Aid. Noe requested a teta-
nus shot and was driven by a clerical employee to the
company doctor. When the driver said he would be back
later, Noe told him to "clock" Noe out at the office.
The next day Noe called in that his finger was still
sore, and a secretary told him to report to his foreman
before punching his timecard. Noe returned to the plant
on April 11 and was told by Carter that he was fired for
not returning to work after seeing the company doctor.
The Charging Party went to the office to get his pay
and was told that it would not be available until 3 p.m.
Noe said he would stay in the office until that time.
When asked by a secretary to leave and return later for
his money, Noe refused. The secretary then called the
police and reported to Project Manager John Pigg3 that
someone was "raising sand" about not getting his check.
According to Noe, he said to the project manager, "You
sorry heifer, I get hurt on the job, fired for not coming
The complaint alleges that Carter was a foreman, a supervisor, and
an agent of Respondent within the meaning of the Act. The answer avers
that Carter was a carpenter foreman, was terminated on May 15, and is
silent on the remaining allegations. As the answer does not specifically
deny that Carter was a supervisor and an agent, these allegations are
deemed to be admitted to be true as of about April I 1, and I so find. Sec.
102.20. Rules and Regulations of the National Labor Relations Board,
Series 8, as amended
:' I find that Project Manager Pigg was a supervisor and an agent of
Respondent for the same reasons as given in fn. 2, ibid.
1108
CENTEX CONSTRUCTION COMPANY, INC.
back to work after going to the doctor, and you want
me to wait outside." Noe then left.
According to Pigg, Noe had already left by the time
the project manager got to the office. Pigg investigated
the matter and determined that Carter had not handled
the matter properly. Accordingly, when Noe returned
for his money, Pigg gave it to him and said that he was
going to put Noe on another crew.
B. Noe's Assignment to Building 7
The following Monday, April 14, Noe was transferred
to building 7 under Supervisor Kelly, who was replaced
a few days later by Carpenter Foreman Houston M.
Allen. 4 The latter supervised about 50 employees in
building 7 and, in addition, about 60 to 65 in building 8.
Allen testified that Noe did not show up for work the
first 2 days that Allen was there, and that he told Noe
that the Company did not hire part-time help. Noe re-
plied that he had had a motorcycle wreck and was
trying to get his "transportation scene together."
Noe worked in building 7 under leadman Lee Sanders.
The building was under construction and was only about
half finished. The working level was about 16 feet below
ground, and in the middle of that level was a pit about
12 feet by 24 feet at the top, and 18 feet deep.
C. The Charging Party's Complaints
Noe complained to Sanders about the absence of
safety belts, tools, extension cords, and guard rails. He
testified that safety belts were needed for almost every
job except that of pulling nails from forms. Noe de-
scribed an assignment of tying "chairs" to steel which
formed the sides of a wall to the pit, work which had to
be done above the bottom of the pit. There were no
safety belts for Noe and two coworkers. Noe went look-
ing for safety belts, without success. He contended that
he and his coworkers were pulled off the job and that he
later saw other workers installing the "chairs" without
safety belts. Noe was later given a new safety belt, but
only for I day.
On another occasion, Noe refused to work in water up
to his knees because "there were electric cords running
everywhere and I had no idea when a carpenter might
drop his cord in the water." The shortage of extension
cords was a safety complaint, according to Noe, because
there were times when "the electricity running through
the cords already there was only enough to run the saws
at half strength, [which] wasn't right."
Leadman Lee Sanders testified that there were not
enough safety belts or extension cords in building 7, nor
enough tools with which to work efficiently, but denied
an insufficiency of guard rails. Employee Lee Jones testi-
fied that safety belts were available for those who really
needed them.
Subsequent to his discharge on May , Noe filed a
complaint against Respondent with the Tennessee OSHA
office. On May 7, Respondent's entire construction site
was inspected by the Division of Occupational Safety &
Health of the Tennessee Department of Labor, and eight
I find that Carpenter Foreman Allen was a supervisor and an agent
of Respondent for the same reasons as those given in fn. 2. supra.
"citations" 5 were issued thereafter alleging numerous
hazardous conditions in violation of the Tennessee Occu-
pational Safety and Health Act. Of these, only one, the
absence of guard rails in building 7, is related to Noe's
complaints about conditions in that building. The Gener-
al Counsel asserted that his object in introducing this evi-
dence was to establish that Noe's complaints were not
frivolous, and not to prove a violation of Tennessee law.
I conclude that there were some hazardous working
conditions at Respondent's construction site.
Leadman Lee Sanders acknowledged that Noe made
safety complaints, but stated that other employees made
similar complaints. Allen and Sanders testified that the
former held safety meetings every Wednesday morning
and that employees were encouraged to make safety
complaints. No employee was ever disciplined in any
way for making such complaints, according to these two
witnesses. Employee Alvin Jones testified that he attend-
ed such meetings on a regular basis, that he was request-
ed to make complaints, and that he had never been disci-
plined for doing so.
Noe said that he attended one meeting at which Allen
warned employees not to "smoke pot" or drink on the
job. Some employees complained about lack of protec-
tion for their eyes when chipping concrete, according to
the Charging Party. Jones corroborated Noe's testimony
that these meetings included warnings against use of
marijuana and alcoholic beverages on the job.
I credit this essentially consistent testimony and find
that Respondent held weekly safety meetings at which
employees were encouraged to make safety complaints
without company reprisal therefor, and that employees
were warned against use of drugs and alcohol. I also
conclude that no such employee was disciplined for
making a safety complaint.
Sanders testified that there was a difference between
Noe's safety complaints and those of other employees. In
many work situations on a construction job, there are
some things that can be done safely even though other
parts of the job cannot be accomplished. The other em-
ployees did what they could and corrected unsafe condi-
tions to the best of their abilities. Noe, on the other
hand, "would try and find excuses for not getting the job
done."
Noe also complained about work assignments, accord-
ing to Sanders. Thus, he protested an assignment to
carry lumber out of the pit, although Sanders himself
carries lumber every day, according to his testimony.
Noe stated that he suggested to Sanders several times
that the Company get laborers to carry lumber, although
he denied complaining about the matter. I credit Sand-
ers' testimony on this subject.
Sanders stated that he reported the employees' safety
complaints to Foreman Allen. He told the latter that
Noe was letting safety conditions get in the way of his
work more than was actually necessary. All Noe did was
' Each "citation" contains the following notice: "The issuance of a ci-
tation does not constitute a finding that a violation of the Act has oc-
curred unless there is a failure to contest as provided for in the Act or. if
contested, unless the citation is confirmed by the Occupational Safety and
Health Reviev: Commission."
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complain, Sanders reported to Allen, adding that "every-
body complained," and that "you're supposed to do a
little bit more than just complain." Sanders said that he
tried to get Noe fired "because he was a defeatist [and]
wasn't getting any work done." Allen acknowledged re-
ceipt of these complaints from Sanders, and replied to
Sanders that he should keep on trying to work with Noe
because it was hard to get men at that time of the year.
D. April 23- The Falling Steel Incident
In the late afternoon on April 23, Sanders was direct-
ing use of a crane to lift flexible strips of reinforcement
steel, 4 to 20 feet in length, out of the pit. Some of the
strips, which had been grasped only on one end, started
to fall, and someone said, "Look out," according to Noe.
Several strips started falling toward Noe and two co-
workers in "a coiling type of fashion," and everyone
tried to get out of the way, according to the Charging
Party. Allen, who investigated the matter the next day,
testified under questioning by the General Counsel that
Sanders in Noe's presence said that he warned everyone
to clear the area before lifting the steel and that every-
one except Noe complied. Under further questioning by
the General Counsel, Allen testified that his pretrial affi-
davit contains the statement, "Mr. Noe did not deny that
Mr. Sanders advised him to stand clear during all this
conversation." Sanders himself conceded that it was an
unsafe load, but was not asked at the hearing about any
prior warnings.
E. April 24-Noe's Confrontation With Allen and
Sanders
Noe testified that he was "in shock," but did nothing
about the matter that day, since it was quitting time. Ac-
cording to Noe, the next morning, April 24, he told an-
other employee that he was going to confront Sanders
about the incident, and the other employee asked him to
report back on what happened. Noe conceded that there
is nothing in his pre-trial statement about any such con-
versation, and there is no evidence that he ever complied
with the alleged request from the other employee.
Noe went to Sanders and said, "Lee, you know that
was absurd yesterday, that was very careless pulling that
steel out of there with us working right there." Sanders,
who was busy, said he did not want to hear it, and
walked off.
Noe asserted that he was "infuriated," and walked
over to building 5 to seek a transfer to another crew.
Noe had previously been directed on occasion to get ma-
terials from the crew in building 5, about 200 to 300 feet
away from building 7. He explained his problem to the
supervisor in that building, who asked him whether he
had "been to the office about it." Noe replied that he
was "trying to keep away from the administrative end of
it."
Carpenter Foreman Allen was in building 5 at the
time, saw Noe, and recognized him as an employee who
was supposed to be in building 7. He asked Noe what he
was doing there and, according to Allen, Noe replied
that he was "looking for a job" in building 5. Noe was
"very hostile," according to Allen, spoke loudly, and
took off his safety helmet, "slinging it around." Allen
testified that he was disturbed that an employee would
leave his area on company time and go looking for a job
with another crew. Noe stated that Allen looked
"angry," and said that Noe should not have gone "over
his head." The foreman told Noe "in a very stern way,"
according to his testimony, that the Company did not
allow anybody to pick his own job, and that Noe would
be terminated if he did it again. Noe testified that until
that time he had felt free to go wherever he wanted to
since he had been to building 5 in the past. Noe then
complained to Allen about the steel almost hitting him
the previous evening, and said that he was not going to
work with Sanders. Allen replied, according to his testi-
mony, that Noe would have to work with Sanders or
leave because Allen had no place else to put him.
As Allen and Noe walked back to building 7, Noe told
Allen of his other safety complaints. At building 7, Sand-
ers was added to the conversation. He gave Allen his
own description of the falling steel incident, previously
described, including Noe's alleged failure to heed Sand-
ers' warning. Noe told Allen that Sanders should get
training in how to run a crane safely. According to Noe,
the conversation ended vaguely, with Allen "wandering
off' into an "offbeat" discussion on how much it cost the
Company to hire people, and that it did not hire them
just to fire them. Noe testified, according to the tran-
script: "I told him [Allen] that he was evading the sub-
jects that we were gathered to discuss. There was a si-
lence for a few minutes and he told Mr. Sanders that
from now on I was to direct my complaints to him di-
rectly."
Allen and Sanders then had a private conversation
about Noe, and concluded that he would have to be
watched closely because he was likely to be "off the job
and anywhere," and it was difficult to keep track of em-
ployees on the construction site. Allen said he had no
idea what Noe's motives were, "safety" or otherwise.
"All I know is just what I was told," he testified.
F. Noe's Alleged Loitering at the Water Cooler
Allen testified that he saw Noe later in the same day,
April 24, taking an inordinate amount of time at the
water cooler and talking to employees. This happened on
two or three occasions. Allen estimated Noe's time at the
water cooler, the first time, as 10 minutes, since it took
place while Allen was traversing, with numerous inter-
ruptions, a 200-foot tunnel connecting buildings 7 and 8.
Noe was at the water cooler when Allen entered the
tunnel and was still there when he left it. Noe talked to
every employee who came for a drink of water, accord-
ing to Allen, although he could not hear the conversa-
tions and did not know the subjects discussed. Noe spent
5 minutes at the water cooler on the second occasion,
Allen testified.
On the evening of April 24, Allen went to Noe and
asked him whether he had any more complaints. Noe
said that he did not. "Well, I've got a complaint about
you," Allen said, and told Noe that he saw him "bullshit-
ting at the water jug," that it was taking up too much
working time and that it would have to stop. Noe said
I110
CENTEX CONSTRUCTION COMPANY, INC.
that he had taken no more timne than other employees,
and suggested that he bring his own water, according to
Noe's testimony. Allen averred that Noe said it would
not happen again. I credit Allen on this difference as to
Noe's response.
Allen testified that an unwritten company policy re-
quires an employee to take no more time than necessary
during a trip to the water jug. If an employee "spends
five or ten minutes there, you're talking about an hour's
time that's lost." Employees receive notice of this policy
if they spend excessive time at the water cooler, accord-
ing to the foreman's testimony. Employee Alvin Jones
testified that employees were not supposed to stand
around the water cooler and talk, and that prior to the
incidents involving Noe, Allen had warned other em-
ployees about it, including Jones. I credit Allen's and
Jones' testimony on the existence of a company policy
against excessive time spent at the water cooler.
Allen was asked by the General Counsel whether it
would be a violation of company policy if employees
stood around the water cooler and talked about safety
for 10 minutes. Allen replied that it would not be a vio-
lation if the employees were discussing how to make the
necessary repairs or adjustments, "But if they are just
standing around talking about something they are not
going to do, then of course the Company wouldn't like
that. They'd want them to do something about it." Any
abstract discussion of safety problems by employees
more than 10 minutes in duration during working time,
not directed toward elimination of the hazard, was con-
sidered by Allen to be a violation of company policy.
However, within that time limit, Allen testified that the
Company had no policy against employees talking with
one another about safety problems while going to get
water.
Allen averred that he observed Noe at the water
cooler the next day, April 25, and that he reprimanded
Noe, who said nothing. The latter asserted that he be-
lieved he was absent from work that day looking for an-
other job, but may have been wrong. He denied any
conversation with Allen between April 24 and May I. 1
credit Allen's more positive testimony on these issues.
The record is clear that Noe was absent the following
Monday through Wednesday, April 28 to 30. Allen testi-
fied that he checked the Company's records and that
those records showed that Noe called in on one of the 3
days, but did not call in the other 2. Noe stated that he
was looking for other work, called into the Company on
each of his 3 days of absence and said he would not be
in. I credit Allen's testimony that he checked the records
and, based on the greater reliability of such records, con-
clude that Noe called in only I of the 3 days.
G. May I-Voe's Second Discharge
Noe returned to work on Thursday, May . Allen tes-
tified that he saw Noe spend 5 to 10 minutes at the water
cooler about 9 a.m. talking to other employees, and at
that time decided to recommend his discharge for spend-
ing excessive amounts of time doing so. Allen added that
he saw the same thing shortly before lunch. Noe ac-
knowledged that he probably visited the water fountain
between 7:30 and 9 a.m., but denied that he stayed there
for 10 minutes talking to other employees. However, he
also testified, "They were just the little cone-shaped
cups, and sometimes I would drink two, perhaps three."
I credit Allen's testimony on these factual issues.
According to Project Manager Pigg, Allen had au-
thority to discharge an employee, on his own, only on
rare occasions. In this instance, Allen called Pigg and
said that Noe was standing around too much not work-
ing as instructed, "goofing off," and that Allen would
have to let him go. According to Allen and Pigg, there
was no reference to Noe's safety complaints in this con-
versation, and Pigg credibly denied any knowledge of
such complaints. Pigg approved the discharge, and told
Noe to have the office prepare Noe's check. Allen credi-
bly testified that he recommended firing two other indi-
viduals within the last year for failure to work, one for
"hanging around the water cooler."
Sanders then told Noe, about noon, to gather up his
tools and go to the office. Allen met them on the way
and told Noe that he was terminated for failure to follow
his supervisor's instructions, according to Allen, and for
"bullshitting," according to Noe.
H. Legal Analysis
The General Counsel argues that Noe was engaged in
protected concerted activity in making safety complaints
to his Employer, and that he was discharged because of
those complaints, taking into consideration their timing
in relation to the discharge.
I agree that Noe was engaged in protected concerted
activity in making safety complaints, whatever the extent
of interest therein manifested by his fellow employees.
Air Surrey Corporation, 229 NLRB 1064 (1977); Alleluia
Cushion Co., Inc., 221 NLRB 999, 1000 (1975); Erie
Strayer Company, 213 NLRB 344 (1974). 1 do not, how-
ever, agree that he was discharged because of that activi-
ty.
Stated in summary, the credited evidence shows that
Noe was hired on March 6, fired on April II for failure
to return to work after a medical appointment, and im-
mediately reinstated with another supervisor. He then
began making safety complaints to leadman Sanders, ac-
tivity in which other employees were also engaged. In
the opinion of Sanders, Noe, unlike his fellow employees,
used unsafe conditions as an excuse not to work. As a
consequence, Sanders tried to get Noe fired, but was told
by Foreman Allen to try to work with Noe because it
was difficult to get employees. After an incident involv-
ing falling steel, Noe sought a different job in a different
building, and was warned by Foreman Allen that he
would be discharged if he again left his work area with-
out permission. Noe was very hostile.
On the same day, on at least two occasions, Noe spent
too much time at the water cooler, talked to other em-
ployees, and was thereafter reprimanded by Foreman
Allen. Although unwritten, the Company had a rule
against loitering and talking at the water cooler, which
had been enforced prior to Noe's employment, resulting
in discharge of one employee for violation of the rule.
Another employee was also discharged for simple loaf-
ing. After his reprimand, Noe was absent from work for
IIIH
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 days looking for another job. On the day that he re-
turned, he was again observed loitering at the water
cooler talking to other employees and was discharged.
The General Counsel's argument, that the timing of
these events shows that Noe's protected activity was the
cause of his discharge, is without merit. On the contrary,
leadman Sanders tried without success to get Noe fired
because of what he believed to be Noe's refusal to work
cloaked in the guise of safety complaints. The Company
nonetheless retained the Charging Party until he repeat-
edly violated Sanders' orders and company policy by loi-
tering at the water cooler. The Company thus continued
to employ him, despite his safety complaints, after
having reinstated him following his original failure to
return from a medical appointment. As the Board has
stated in discussion of similar facts, "In spite of the dem-
onstrated disenchantment with [him] . . . he was not im-
mediately discharged, but rather he continued to work
for another [several] days and was given a termination
slip only after other incidents involving misconduct by
him had occurred." Erie Strayer Company, supra, 213
NLRB at 345. Although Respondent reinstated Noe after
his failure to return from the doctor, this misconduct was
not as serious as Noe's later flouting of Foreman Allen's
orders and his loitering at the water cooler. Young and
Hay Transportation Co., 205 NLRB 619, 622 (1973). Re-
spondent simply tolerated Noe until his more serious mis-
conduct. Herbst Supply Co., Inc., 222 NLRB 448, 451-
452 (1976).
An inference that Noe was discharged for cause is sup-
ported by the fact that he violated a no-talking rule
which Respondent had uniformly enforced against other
employees to the point of discharge, and by the fact that
Noe had previously been reprimanded himself for the
same infraction.s The fact that Respondent did not con-
done such conduct in other employees is further evi-
dence that the Charging Party's similar conduct was the
real reason for his discharge. Savannah Wholesale Compa-
ny, 251 NLRB 500 (1980).
The credited testimony of Foreman Allen shows that,
although Respondent objected to excessive talking about
any subject during working time, it did not object to em-
ployee conversation about working hazards if directed
towards correction of same, and, even without such a
specific object, would tolerate very brief conversations
at the water cooler. The absence of any animus by Re-
spondent against employee safety complaints is graphi-
cally demonstrated by its weekly safety meetings in
which employees were encouraged to make such com-
plaints, and by the fact that employees were not disci-
plined for doing so. "Everybody complained," Sanders
credibly testified, and there is therefore no way to distin-
guish Noe's safety protests from those of other employ-
ees,7 without the explanation that they were an excuse
6 Simpson Electric Company a Division of American Gage & Machine
Company, Inc., 250 NLRB 309 (1980); Elano Corporation, 216 NLRB 691
(1975): American Book Division. Litton Educational Publishing, 207 NLRB
1054 (1973).
' Enerco International, Inc., 200 NLRB 394 (1972).
for loafing. Respondent's lack of opposition to, and,
indeed, encouragement of, employee safety complaints
show that its real opposition to Noe was his violation of
the no-talking rule coupled with avoidance of work.8
The Charging Party's filing of a complaint with
OSHA took place after his discharge, and therefore was
not a cause of Respondent's action. Indeed, even when
similar complaints have been filed prior to discharge, the
Board has concluded that unsatisfactory work perform-
ance was the real cause of the employer's discipline. Peer
Enterprises, Ltd., 218 NLRB 987 (1975).
Although Respondent did not explicitly give Noe's
"attitude" as a reason for his termination, the record
warrants an inference that this was an additional factor.
Noe called Project Manager Pigg "a sorry heifer." When
found in building 5 out of his work area by Foreman
Allen, and warned against repetition of this infraction,
Noe was "very hostile." His belief that he had a right to
be anywhere, simply because in the past he had been di-
rected to obtain supplies at building 5, is unrealistic, par-
ticularly in a large construction site with numerous proj-
ects. When Allen attempted to end the conversation and
to gloss over Noe's conduct by saying that the Company
did not hire people just to fire them, Noe chose direct
confrontation, and accused Allen of "evading" Noe's
safety complaints. I find that Noe had a hostile and un-
cooperative attitude, and that this was a factor in Re-
spondent's discharge of him.9
Because of my findings above, no useful purpose
would be served by granting Respondent's motion to
reopen the record, and the same is hereby denied. In ac-
cordance with said findings, I make the following:
CONCI.USIONS OF LAW
1. Respondent, Centex Construction Company, Inc., is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor Rela-
tions Act, as amended.
2. Respondent has not committed any unfair labor
practices herein.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I hereby issue the fol-
lowing recommended:
ORDER '
The complaint is hereby dismissed in its entirety.
' Kantor Pepsi-Cola Bottling Co. of Beloit. Wisconsin, 248 NLRB 99.
102-103 (1980); Tennsco Corp., 206 NLRB 48 (1973): Justus Company.
Inc.. 199 NLRB 422 (1972); Vaughan Printers. Inc., 196 NLRB 161, 171
174 (1972).
'Spalding. Division of Questor Corporation. 225 NLRB 946 (1976) Wil-
lowbrook. Inc., 218 NLRB 379 (1975).
'° In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided
by Sec. 102.48 of the Rules and Regulations. be adopted by the Board
and become its findings, conclusions, and Order. and all objections there-
to shall be deemed waived for all purposes
1112