Stolte, Inc.

National Labor Relations Board - Board Decisions

Dec 26, 1984

273 N.L.R.B. 1316 (N.L.R.B. 1984)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stolte, Inc. and Kenneth Wilkie. Case 31-CA-12019
26 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 August 1983 Administrative Law Judge
Harold A. Kennedy issued a decision in this pro-
ceeding. The Charging Party filed exceptions and a
brief. On 27 April 1984 the Board remanded the
proceeding with the direction that the judge make
more specific credibility findings and set forth the
bases therefor. On 26 July 1984 the judge issued
the attached supplemental decision. Thereafter, the
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified herein.2
' The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 The judge dismissed the complaint allegations that the Respondent
violated Sec 8(a)(1) and (3) of the Act by discharging Kenneth Wilkie,
as he found that Wilkie was dismissed for slow performance, and we
affirm that finding We note certain issues, however, which require a
more thorough discussion than that furnished by the judge
We note first that Wilkie was an active steward who constantly raised
working condition-related complaints From Wilkie's uncontradicted tes-
timony, the Respondent was irritated with Wilkie's constant complaints
It is in this context that we have viewed the allegation that Wilkie was
illegally discharged
We also note certain alleged Inconsistencies in the Respondent's testi-
mony not directly addressed by the judge One involves the Respondent's
foreman James McCauley's testimony, at separate times during the hear-
ing, that when Wilkie first began working for the Respondent his work
speed was one-third that of the average worker, and that after he became
steward his work speed was one-third that of the average worker The
General Counsel pointed out on cross-examination that McCauley stated
that the reason he discharged Wilkie in February was because his rate of
work had decreased after he became steward McCauley then stated that
Wilkie's work speed while he was steward was one-fourth that of the av-
erage worker The General Counsel asked McCauley why he was now
saying one-fourth, and McCauley replied that he had no answer McCau-
ley did note, however, that there was little difference between a third
and a fourth slower McCauley also indicated that he had told Supervisor
Bragdon that Wilkie was doing one-third the work of an average worker
We note that McCauley had been consistent in stating that Wilkie's work
speed had decreased after he became steward, until this attempt to quan-
tify that decrease Supervisor Bragdon also stated that McCauley had
told him that Wilkie had slowed down since becoming steward Thus, we
find that McCauley's attempt to quantify Wilkie's work performance as
one-fourth Instead of one-third that of the average worker to support his
statement that Wilkie's work rate decreased after he became steward is
not critically inconsistent and is insufficient to discredit McCauley's testi-
mony on this point
Another alleged inconsistency involves Bragdon's affidavit to the
Board, in which he stated, "Up until the time he [Wilkie] became stew-
ard, as far as I know his work was satisfactory From that time on I
heard complaints" This statement could be viewed as contradicting
McCauley's statement that Wilkie had always been a slow worker We
note, however, that Bragdon did not have much occasion to view Wil-
ORDER
The National Labor Relations Board orders that
the complaint is dismissed.
he's work He testified that he personally observed Wilkie at work only
once, and at that time Wilkie was slower than the other employees Brag-
don could not recall if he observed Wilkie before or after Wilkie became
steward In sum, we do not find Bragdon's testimony to be cntically in-
consistent from that of McCauley
DECISION
HAROLD A. KENNEDY, Administrative Law Judge.
The only question presented in this case is whether an
employer discharged one of its employees for engaging
in union or "other protected concerted activities" and
thereby violated Section 8(a)(1) and (3) of the National
Labor Relations Act (Act). Having considered the entire
record taken at the trial of this matter, held in Los Ange-
les, California, on February 23, 1983, and determined
that the employee was terminated for other than any
protected concerted activities, the complaint will be dis-
missed.
Kenneth Wilkie, the Charging Party, filed a charge
with the Regional Director of the National Labor Rela-
tions Board's Region 31 on March 25, 1982, alleging that
Respondent Stolte, Inc. had terminated him about Febru-
ary 12, 1982, "because of his union activities on behalf of
Laborers International Union Local 300 of North Amer-
ica, AFL-CIO." Thereafter, on May 28 a complaint
issued alleging that: (a) About January 11 Wilkie was ap-
pointed a union steward for certain employees of Stolte
working at its Galleria II jobsite in Glendale, California;2
(b) between on and about January 11 and February 12
Wilkie "concertedly complained" about wages, hours,
and working conditions of Respondent's employees; (c)
during the same period Wilike complained to OSHA re-
garding the working conditions of employees; and (d)
About February 12 Stolte discharged Wilkie and since
that date has failed to reinstate him. The complaint also
alleges that the discharge occurred "because Wilkie
joined or assisted the Union or engaged in other protect-
ed concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection" and, thus, vio-
lated Section 8(a)(3). The complaint further alleges that
the discharge operated to "interfere with, restrain, and
coerce" Stolte's employees in the exercise of their rights
guaranteed in Section 7 of the Act and, thus, violated
Section 8(a)(1) of the Act.
Respondent admitted in its answer that Wilkie was ap-
pointed union steward about January 11 as alleged but
denied the other allegations recited above. Respondent
I All dates are in 1982 unless otherwise stated
The General Counsel called James Laney, a business agent for Local
300, to testify on his case-In-chief, but the Union did not otherwise par-
ticipate in the proceeding
2 Job Superintendent Eugene Bragdon described the Gallena II project
as "an addition to the existing Glendale Gallena Shopping Center," con-
sisting "of a five-level parking structure and then a two-level mall with
parking underneath it"
273 NLRB No. 119
STOLTE, INC. 1317
admitted all other allegations of the complaint which set
forth the following matters:
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act. •
2. Respondent is a California corporation engaged as a
general building contractor of high-rise office buildings,
commercial buildings, and shopping centers. Respondent
maintains its principal place of business in Los Angeles,
California, and in the course and conduct of its business
purchases and receives goods and services valued in
excess of $50,000 directly from suppliers located outside
of the state.
3. At all times relevant the following persons held the
positions indicated and were agents and supervisors as
those terms are defined in the Act: Edward . Cruz Jr., su-
perintendent of the tower; Eugene Bragdon, superintend-
ent of the mill and parking structure; Robert Allen
Powell, carpenter foreman; James Daniel McCauley, La-
borers' foreman; and John J. Neeson, project manager.
4. The Laborers' International Union of North Amer-
ica, Local 300, AFL-CIO, CLC (Union) is a labor orga-
nization as the term is used in the Act.
It remains only to be determined whether Wilkie's ter-
mination was for a purpose proscribed by the Act as al-
leged.
Five witnesses testified, two for the General Counsel
and three for Respondent. The testimony is summarized
hereinafter in order of their apperances.
Charging Party Kenneth Wilkie testified that he was
hired by Superintendent Ed Cruz to work at Galleria II
in Glendale on October 26, 1981. Wilkie stated that Cruz
told him he was to start as a laborer and would later
become a foreman. Wilkie worked as a laborer, reporting
to Cruz, until around November 18 when he was laid off
due to the fact that the Respondent and the "owner" had
not signed a contract. Wilkie returned to work for Re-
spondent at the same jobsite around December 18 and
worked thereafter under Laborers' Foreman McCauley
until terminated on February 12, 1982.
Wilkie stated that at first he was assigned to do vibrat-
ing work with a jackhammer, digging of footings, pour-
ing of concrete, assisting in the engineering of layouts,
and helping build barricades. "Everything changed,"
Wilkie said, when he was designated job steward by
Local 300 on January 11. 3 From that time on, according
to Wilkie, he was assigned to do such things as act as
flagman, pick up rock, wash vehicles, sweep up, and
clean barricades. Wilike indicated that other laborers
spent their time working around "footings."
, Wilkie testified that as steward he was called on to
check on safety, see that -laborers' work was performed
only by laborers, and take grievances from other laborer
employees. He stated that the duties of a job steward are
set forth in a "Short Form Agreement."4
3 Union Business Agent Laney testified that the actual date of appoint-
ment was January 12 (R. Exh. 1).
4 Respondent is signatory to the Master Labor Agreement (G C. Exh.
4), however, not the Short Form Agreement (G.C. Exh. 2). A steward's
duties under the two agreements are not dissimilar, however.
Wilkie stated that he was entitled to conduct union
business during normal work time—after requesting per-
mission of his supervisor. Wilkie testified concerning a
number of conversations that he had with management
personnel—Superintendent Cruz, Superintendent Brag-
don, Carpenter Foreman Powell, and Laborers' Foreman
McCauley—during the month that he served as stew-
ard.3
Wilkie went into some detail concerning complaints he
made to Respondent's supervisors on the following dates,
as follows:
January 11—McCauley—man alone in an unshored
"footing" (or hole); also, carpenters doing laborers' work
(oiling forms). McCauley agreed to "correct" both items.
January 12—McCauley—Wilkie wanted to check to
see if two employees (operating engineers) helping with
concrete pour were union laborers, but McCauley told
Wilkie to return to work.
January 13—McCauley, Powell and Bragdon—repeat
of January 11 complaints. Powell and then Bragdon con-
sulted concerning the oiling of forms. Bragdon said car-
penters would not oil forms but declined to assign work
to laborers. Wilkie told to contact Union.
January 14—McCauley, Cruz and Bragdon—repeat of
January 12 complaint and again rejected by McCauley,
who told Wilkie to return to work. Cruz consulted, how-
ever, and Wilkie allowed to perform "union business."
Wilkie asked to see papers of two workers (operating en-
gineers) doing concrete work but McCauley "inter-
fered." Bragdon then consulted, and Bragdon reported
that the two men were "union." Business Agent Laney
called in and the two workers refused to produce cards.
January 15—McCauley, Powell and Bragdon—repeat
of complaints of January 11 and additional new com-
plaints: two laborers worked during lunch hour and an-
other performed "PTO" (vibrator) work without being
paid the extra wages as required. After meeting with
Powell, Wilkie went to Bragdon, who asked Wilkie to
stop "these little small things." Wilkie then called union
liminess agent as suggested by Bragdon.
January 18 (rain)—McCauley and Bragdon—repeat of
January 15 complaint concerning pay for two employees
who worked through lunch period. Bragdon stated that
men volunteered such work, but Wilkie stated union men
"don't volunteer." Bragdon became angry, ordered
Wilkie out of office and commented, "You're the damn-
dest steward that I've ever seen in my life."
January 20—McCauley and Bragdon—Wilkie and two
other laborers told to enter a 10-foot caved-in footing
and shovel out mud. Wilkie went to see Bragdon, who
stated that he knew Wilkie had called "OSHA." Brag-
don said carpenters would shore up hole as OSHA di-
rected, but Wilkie stated, "That's a laborer's job." Wilkie
was told he was "starting an awful lot of problems" and
was then assigned by (Bragdon through McCauley) to
5 Wilkie testified that McCauley reported to Cruz and that Cruz re-
ported to Bragdon. Laborers' Foreman McCauley said he reported to
Bragdon who reported to Project Manager Neeson.
References to OSHA throughout proceeding actually refer to Cal-
OSHA.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sweep the street. Later Wilkie was assigned to dust barri-
cades and wash vehicles.
January 25—McCauley, Powell and Bragdon—Wilkie
and two other laborers assigned again to shovel dirt out
of hole. Wilkie criticized installed shoring as "a little
death trap." Powell arrived, stated shoring was done as
OSHA directed and commented that he hoped it would
fall on Wilkie Bragdon then consulted and told by
Wilkie that Bragdon should be "ashamed" of the shor-
ing. Bragdon responded that the shoring was done as di-
rected by OSHA and told Wilkie to "stop all this junk."
Wilkie said he would call OSHA and did so. Safety
meeting then followed, attended by Cruz, Bragdon, and
about 17 carpenters and five laborers. Workers told by
Cruz to bring safety problems to him or Bragdon so they
can be corrected. Bragdon then added that he would fire
anyone calling OSHA or union business agent because "I
can straighten things out" Wilkie was given a chance to
speak and stated, "I'm the guy to call." Continuing,
Wilkie told Bragdon before group that he "didn't believe
a word" of Bragdon's that OSHA had directed that shor-
ing be done "this particular way." Bragdon said, "You're
calling me a liar. Take that back." Wilkie responded:
"I'm taking nothing back, and you can't make me." The
safety meeting ended, and Wilkie returned to work.
Later in the day, Cruz called Wilkie out of the hole to
meet with OSHA Inspector Francis Ford. Wilkie
showed Ford the footing. Ford ordered another laborer
who was working in the hole to get out and then handed
a citation for incorrect shoring to Cuz Wilkie then told
Ford and Stolte had five 10-power boxes on the jobsite
that were not grounded and the need for barricades
around certain unguarded footings. Ford then "wrote"
up these items, according to Wilkie, and directed remov-
al of the power boxes and roping off of footings.7
February 1—McCauley—Wilkie asked and was al-
lowed to call the Union to advise that a concrete pour
was in progress. Later in the day Wilkie met with
McCauley and Operating Engineers' Business Agent
"Jerry," who had come to the jobsite at Wilkie's request
as Laborers' Business Agent Laney was unvailable.
Wilkie pointed out improper use of a forklift by carpen-
ters in carrying forms and commented that OSHA had
told Stolte "to get rid" of it. McCauley told Wilkie that
his complaint concerned carpenters' business, and Wilkie
told McCauley "not to interfere" Jerry stated that he
would "take this up with the carpenter foreman," and
Wilkie agreed to return to his work picking up rocks.
Wilkie also complained to McCauley at lunch time that
day that two laborers were working through the lunch
period as had occurred previously. Wilkie pointed out
that the prior lunch time work and the PTO work had
7 On cross-examination, Wilkie said an OSHA representative had come
to the jobsite at an earlier time when he was not there Wilkie said he
had asked the union business agent to call OSHA and that he (Wilkie)
and Bragdon had discussed the earlier OSHA visit about January 20
Wilkie said an OSHA Inspector returned on January 27 and repeated the
need to get rid of the "10 power boxes" On redirect Wilkie said he
called OSHA on two occasions, once on the morning of January 25 and
on a later date in the evening after he had gone home
Business Agent Laney later testified that he had called OSHA in Janu-
ary at Wilkie's request Defense witness Superintendent Bragdon also tes-
tified concerning vists by OSHA representatives
not yet been paid. Wilkie said he told McCauley, "It's
going to be in their check," and McCauley "just looked
at me . . ."
February 4—McCauley, Powell and Bragdon—Wilkie
approached McCauley and, after mentioning his (Wil-
kie's) recent absence due to an injury, inquired whether
the rumor of a layoff of laborers had any validity.
McCauley said it did and indicated that he (McCauley)
would be the only laborer who would continue to be
working. McCauley allowed Wilkie to speak to Bragdon
about layoff of carpenters. Powell, who entered Brag-
don's office while Wilkie was there, stated that he was
keeping five carpenters and two carpenter foremen on
the job. Wilkie said he would have to call his union and
walked out. Later that day McCauley advised Wilkie
that he was not being laid off after al1.9
February 8—McCauley and Bragdon—Wilkie, who
was working in a 14-foot deep hole near a crane, told
McCauley that he had to get out and get away from the
carbon monoxide in the area. McCauley replied that he
wanted Wilkie to work there but allowed Wilkie to go
see Bragdon. Bragdon told Wilkie to go back and do
what McCauley directed or he (Wilkie) could call the
business agent. Wilkie returned to the hole after calling
the business agent. The business agent, a Mr. Bibb, came
to the jobsite and met with Bragdon and Wilkie. Bibb
supported Wilkie and complained of the Union's need for
frequent visits to the jobsite and assignment of carpenters
to laborers' work. Also, at Wilkie's request, Bibb asked
Bragdon to provide transportation to a hospital to per-
sons hurt on the job (which was not done when Wilkie
was hurt on February 2). Bragdon agreed to provide
such transportation.
Wilkie testified that on February 12, the day he was
terminated, he and two other laborers were at work on
his jobsite. He said McCauley called him over, from the
position he was picking up rocks, and told him: "Here's
your check. I'm glad to get rid of you." McCauley gave
Wilkie his check and two "lay-off slips." Wilkie said he
inquired of McCauley what the slips were, and McCau-
ley explained: "This is your termination slip and another
slip showing we don't ever want you with Stolte again."
Wilkie stated that McCauley also made a comment to
the effect that he was "glad to get rid" of him, but did
not explain the reason for the termination.
One of the slips given to Wilkie, which bears the label,
"Termination Notice," indicates that Wilkie was hired on
October 27, 1981, and discharged on February 12, 1982,
for being "Too slow—poor work" Wilkie said he was
never reprimanded while in the employ of Respondent
and was aware of no complaints about his work. He said
no one ever told him to speed up his work Wilkie ac-
knowledged, however, he never filed grievances against
the company for the problems he had complained
about.9
8 Wilkie said he did not work on February 5 as he met with laid-off
workers who, he said, had not been paid
9 The termination notice has three columns captioned "Lay Off," "Dis-
charge" and "Voluntary Quit" Under Discharge the following items
appear Refusal to follow instructions, Misconduct, Absentee, Not Quali-
fied, Too Slow—Poor Work, and Others (Explain) A box next to "To
Slow—Poor Work" was "blacked out"
STOLTE, INC. 1319
On cross-examination Wilkie said he kept a camera in
his car which he used to photograph work conditions
during breaktimes or after working hours.
James Laney, business agent or field representative for
Laborers' Local 300, testified that Wilkie was appointed
steward on the recommendation of the field representa-
tive who had preceded him. He said he had known
Wilkie for 7 or 8 years.
Laney said he made "frequent" trips to the Galleria II
jobsite in response to Wilkie's complaints. Laney stated
that he went to the jobsite on the average of "probably
no less than three and probably as many as five times in
a week" during the month period that Wilkie had served
as steward. There were times he said when he had to go
to the jobsite "twice in one day."
Laney stated that his usual procedure was to contact
Superintendent Bragdon and then Steward Wilkie. He
would usually return to speak with Bragdon alone, al-
though Wilkie would sometimes follow along. Laney in-
dicated that Stolte was more cooperative than most
other employers. Said Laney:
I would have to truthfully say that in the process of
visitation on this job that any time I ran into a prob-
lem that seemingly could not be solved between me
and Bragdon or McCauley, I went to [Project Man-
ager] Mr. Neeson and he always resolved the prob-
lem for me.
Laney recalled details of certain visits made to Gal-
leria II but not the dates. Laney remembered going to
the jobsite in regard to "open trenches, shoring and bar-
ricades." Bragdon told Laney that these things would be
corrected.
On another occasion Laney went to the jobsite in re-
sponse to a complaint that "carpenters, plumbers [were]
doing our work." Laney said he "did not see any infrac-
tions," noting that carpenters are allowed to carry
lumber from a stockpile within a 25-foot radius to do
their work and that plumbers are permitted to do what
they were doing on that occasion, which he described as
"some kind of sewer" work.
Laney recalled being called to the jobsite when
"Double P" was pouring concrete. After some investiga-
tion, Laney told Bradgon that an "oiler," although a
union man, should not be pulling "mud" out of a chute
with a shovel or giving any directions to a truck "be-
cause that was a laborer's job." Laney had no criticism
of the work being performed by the "operator" on the
job, however. Bragdon told Laney then that "he would
settle the issue, and the oiler put his shovel down."
Laney remembered talking to two workers on the job-
site who "were supposedly complaining" about not being
paid for working through their lunch period. Said
Laney:
I dismissed the complaint because of the fact that
they had answered that they worked through the
lunch period on their own volition. And them
working on their own volition did not allow me a
point to collect because they were not complaining.
Testifying on cross-examination, Laney said he had
talked to Bragdon concerning Wilkie's complaint that he
had been unable to perform his duties as a steward.
Laney indicated that Wilkie's complaint was not justi-
fied, stating, "I think that he had been offered the oppor-
tunities to do what was specified, within the working
agreement."
Laney also testified on cross-examination that Stolte
officials had mentioned the possibility of Wilkie's dis-
charge becuse his work habits had changed. Laney ac-
knowledged that he and Bragdon had observed Wilkie in
the area of a ditch for a period of 15 or 20 minutes.
Laney indicated at first that Wilkie was standing above
the ditch, but then stated:
He walked around. I do not know. He may have
been picking up the rocks or doing something that I
do not know anything about.
James McCauley, Stolte's Laborers' Foreman on the
Galleria II project, began his employment with Stolte in
December 1981. He was concerned with construction of
the parking structure and worked under Superintendent
Bragdon.
McCauley said he was responsible for the rehiring of
Wilkie in December 1981 and thereafter supervised Wil-
kie's work. McCauley stated Wilkie used a vibrator for a
couple of days and spent much of his time "cleaning the
bottoms" of footings. McCauley asserted that Wilkie was
assigned to do the same kind of work other laborers per-
formed—cleaning of rebar, stacking of lumber, sweeping
up, washing of vehicles, etc.
Wilkie was "very, slow" from the beginning, according
to McCauley. McCauley compared Willde's rate to be
"about a third" of the average laborer. McCauley said he
spoke to Wilkie early on about his slow pace, and the
latter responded that "Rome was not built in a day."
After being appointed steward, Wilkie's speed was even
slower.
McCauley said he had authority to hire and fire and
that he had told his superiors "half a dozen" times that
he was going to lay off Wilkie because of his poor per-
formance. McCauley said he was responsible for the in-
formation appearing in Wilkie's termination notice.
McCauley testified that he had decided to let Wilkie go
about 2 or 3 weeks, before he actually dismissed him. On
cross-examination, when shown his affidavit, McCauley
agreed that he had told Carpenter Foreman Powell in
December, prior to Wilkie's designation as a steward,
that he wanted to terminate Wilkie at that time because
of his slow work.
McCauley maintained that there was no need for
Wilkie to make complaints. McCauley said he would
correct deficiencies called to his attention but that "99%
of the time [Wilkie] would call the business agent."
McCauley recalled an incident in which two laborers
helped him pour concrete during a lunch period. Wilkie
complained about it, and McCauley saw to it that they
were paid for such work. On another, similar occasion
Wilkie had complained to McCauley that the company
must pay employees for working through lunch. McCau-
ley acknowledged to Wilkie that he knew that fact,
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which brought the following response from Wilkie:
"Don't give me no shit or I'll make you pay me too."
McCauley disputed Wilkie's claim that the latter only
took pictures during "Off hours." McCauley asserted
that he observed Wilkie taking pictures at least a "half a
dozen" times.
Eugene Bragdon identified himself as job superintend-
ent at Galleria II. He stated that there was one other
person on the job superior to him, Project Manager
Neeson.
Bragdon stated that he had requested that Wilkie be
rehired after being laid off, and he assigned Wilkie to
work under Laborers' Foreman McCauley. Bragdon said
he observed Wilkie working on one particular occasion
and noted that Wilkie "threw out about a half a shovel-
ful of dirt to two shovelsful of dirt by other laborers."
Bragdon thought he had discussed Wilkie's slow work
with McCauley about a half a dozen times. Bragdon was
not sure when the discussions took place but stated that
McCauley had indicated Wilkie "had slowed down since
he became steward." 1 ° Bragdon testified concerning cer-
tain incidents Wilkie had referred to in his testimony.
Bragdon recalled that Wilkie complained that the com-
pany had allowed a concrete truck driver to "run a little
water" to clean out the "chute when the truck is empty"
instead of utilizing a laborer to perform such activity. He
said he allowed Wilkie to call out his business agent
(who agreed with Wilkie) about the matter.
Bragdon denied stating at a safety meeting, or on any
other occasion, that he would fire anyone for calling
OSHA or a business agent. He said he did want to be
informed of all safety problems and had stated at safety
meetings that nothing would be held against a person for
reporting an unsafe condition
Bragdon stated that Project Manager Neeson had re-
quested the Cal-OSHA Consultation Service to visit the
Galleria II jobsite in connection with the excavation
work on the project. Cal-OSHA Consultant Manuel Cir-
iaco visited the site on January 20 and recommended uti-
lization of certain safety procedures (R. Exh. 2). Bragdon
said he thought the company had complied with Cina-
co's recommendations as to shoring. However, on Janu-
ary 25 Cal-OSHA Inspector John Ford made an inspec-
tion and on January 27 issued a citation alleging viola-
tion of two safety standards (R. Exh. 3A) In addition,
Ford provided the company with an information memo-
randum recommending protection be provided employ-
ees working near a sloping bank (R. Exh. 3(b)).
Bragdon testified that Wilkie had been allowed to per-
form his duties as steward Bragdon said he spoke with
Union Business Agent Laney about Wilkie on a couple
of occasions. On one of the occasions Laney told Brag-
don that "he had informed Mr Wilkie what his duties
were as a steward and that he also owed the company
responsibility for a day's work for a day's wages." Brag-
don continued: "The second time was when Mr. Laney
informed me that he had sat over in the parking lot at
'° Bragdon agreed on cross-examination, however, that he had stated
in an affidavit that as far as he knew, Wilkie's work was satisfactory up
until he became steward
Thrifty Drug Store and observed Mr. Wilkie for a rather
lengthy period of time doing nothing."
Bragdon stated that McCauley made the decision to
discharge Wilkie. McCauley advised Bragdon of the de-
cision and Bragdon in turn informed the project manager
who had the final authority on the project. The Union
was thereafter notified by letter dated February 10 of the
termination as provided for in the collective-bargaining
agreement.
Keith Tanner, administrative vice president of Stolte
and custodian of the firm's records, took the stand to tes-
tify that the Company's records contradicted the Charg-
ing Party's testimony that he was on the job on January
20 and was not there on January 18. The company's
records show that he was paid for work performed on
January 18 and that he received no pay for any work on
January 20 (R. Exh. 6).
Tanner also testified that he has been concerned with
safety for Stolte for 15 years and that it has a "strong"
safety program. He said employees at Galleria II were
free to go to the project manager and to their union busi-
ness representatives with safety complaints
I am satisfied that Respondent terminated Charging
Party Wilkie for a legitimate business reason. The credi-
ble testimony of Foreman McCauley and Superintendent
Bragdon persuade me that Wilkie was discharged only
because of his poor work performance. His work was
"too slow" before he was designated steward, and his
poor work performance deteriorated further after he
became steward. Respondent demonstrated that Wilkie's
termination would have taken place in the absence of
any protected concerted activity. See NLRB v. Transpor-
tation Management Corp, 462 U.S 393 (1983).11
The General Counsel's argument in support of the
charges is not persuasive. There is no question about
Wilkie's right to make complaints concerning working
conditions, including those that concern safety. That Cal-
OSHA made an inspection at his request and issued a ci-
tation and information memorandum to Respondent, of
course, does not satisfy the General Counsel's burden.
Nor is the fact that complaints of Wilkie may have had
"at least some merit"
I reject the General Counsel's contention that Re-
spondent's "stated reason for Wilkie's termination is
highly incredible and strongly hint at fabrication" The
effort of the General Counsel's attorney to make McCau-
ley's testimony appear inconsistent is unpersuasive. I
credit McCauley's testimony over Wilkie. I specifically
reject Wilkie's claim that no one ever complained about
his work. And I reject Wilkie's assertion that Bragdon
had threatened to fire anyone who complained to OSHA
or to a union business agent. The failure of McCauley
and Superintendent Bragdon to deny each and every as-
sertion of Wilkie is not significant here The failure to
" Wilkie's testimony on the General Counsel's case-in-chief, if consid-
ered alone, suggests that protected conduct could have been a motivating
factor in his discharge The General Counsel's other witness, Union Busi-
ness Agent Laney, however, was of no assistance to his cause Laney's
testimony indicates that he was aware of Wilkie's poor performance and
was in no position to question Wilkie's discharge for that reason
STOLTE, INC. 1321
call Carpenter Foreman Powell, who had no part in the
discharge of Wilkie, is likewise of no significance.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Laborers' International Union of North Amer-
ica, Local 300, AFL-CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent's discharge of Kenneth Wilkie on Feb-
ruary 12, 1982, was for a legitimate business purpose and
did not violate the Act.
4. It was not established that Respondent violated the
Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
It having been found and concluded that Respondent,
Stolte Inc., has not engaged in any unfair labor practice,
the complaint is dismissed in its entirety.
12 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.
SUPPLEMENTAL DECISION .
HAROLD A. KENNEDY, Administrative Law Judge. On
August 31, 1983, I issued a decision and recommended
Order dismissing a complaint that charged Respondent
with violating Section 8(a)(1) and (3) of the National
Labor Relations Act by discharging one of its employees
for engaging in union or "other protected concerted ac-
tivities." On April 27, 1984, the Board remanded the pro-
ceeding with the direction that I make more specific
credibility findings and set forth the bases therefor. The
Board's remand Order reads in part:
Since the Board considers the Judge's credibility
resolutions presently inadequate, this proceeding
therefore shall be remanded to the Judge in order
that he can make specific findings as to the credibil-
ity of witnesses including, but not necessarily limit-
ed to, his reasons for crediting the testimony of Re-
spondent's foreman, James McCauley, over Wil-
kie's; why he found unpersuasive the General Coun-
sel's claim that McCauley's testimony was inconsist-
ent; and more precisely what effect, if any, the testi-
mony of James Laney, Laborers' Local 300 business
agent, should have on this proceeding.
Floreman James McCauley impressed me as a truthful
witness, and I specifically credit his testimony as to why
he recommended Wilkie's discharge. I believe McCau-
ley's testimony to the effect that he found Wilkie to be
"very slow" from the start, that he worked more slowly
than other laborers, and that his performance worsened
after being appointed steward, notwithstanding the fact
that McCauley had discussions with Wilkie about the
speed of his work. I credit McCauley's testimony that
Wilkie stated during one of such discussions that "Rome
was not built in a day," and that on another occasion
Wilkie responded, "I'm going as fast I can."
I find no significant inconsistent statements in McCau-
ley's testimony in spite of the persistent, if not contort-
ing, efforts of the General Counsel's attorney to make it
appear so. A fair reading of McCauley's testimony, in
my view, clearly indicates that McCauley recommended
Wilkie's discharge only because of slow performance on
the job.
It is apparent that McCauley did not regard Wilkie's
attitude as a worker to be the best, but the record is not
persuasive that McCauley recommended Wilkie's dis-
charge because of a poor attitude or for any reason other
than slow performance.
It was hardly critically inconsistent for McCauley to
have stated in his affidavit that it took Wilkie "forever to
a job" and state at other times that Wilkie worked at a
one-third or at other slower rate than other workers.
That McCauley did not remember that the affidavit that
he signed stated that Wilkie took forever to do a job is
of no moment. .
The brief filed with me by the General Counsel's at-
torney went to some length to make it appear that
McCauley's testimony contained inconsistencies and was
thus unworthy of belief. There does appear to be some
conflict in the testimony as to who was responsible for
hiring (or rehiring) of Wilkie. McCauley answered in the
affirmative to the question if he had been responsible for
hiring Wilkie. McCauley said later he "was not the one
that originally hired Mr. Wilkie" and stated that it was
Edward Cruz who did (Wilkie himself said he was hired
by Cruz. Superintendent Bragdon indicated in his testi-
mony that Wilkie had worked for Cruz when Wilkie was
first hired [in October before McCauley was employed
by Respondent] and that he [Bragdon] had asked
McCauley at a later time to notify the Union of the com-
pany's desire to recall Wilkie.) Such testimony on this
matter of no more than secondary importance may be in-
complete or even unclear, but it hardly "demonstrates
McCauley's propensity to stretch his testimony to fit a
given question," as the General Counsel's attorney has
argued.
It is clear from McCauley's testimony that he took the
initiative to discharge Wilkie. He consulted other offi-
cials, including his superior, Superintendent Bragdon,
about terminating Wilkie, even though he had authority
to discharge employees. (Bragdon also discussed the dis-
charge with his superior, Project Manager Neeson, who
signed the termination "slips" (G.C. Exh. 3).) I thus
reject the General Counsel's attorney's assertion that
McCauley "changed his testimony" on the point.
The "actual reasons" for Wilkie's termination were not
"somewhat conflicting" as the General Counsel's attor-
ney contended. That McCauley admitted that he "never
timed Wilkie or other laborers" does not mean that
McCauley made no judgment that Wilkie was a slow
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worker or that there was another reason for recommend-
ing his dismissal.'
As the General Counsel's attorney pointed out in his
brief, Wilkie's complaints went "substantially unrebuttecl
and undenied." Certain testimony of Wilkie impressed
me as improbable and not credible, however, in the face
of impressive contradictory evidence I was not persuad-
ed by his claim that no one had discussed his work habits
or the speed of his work while employed by Stolte. I
thus credit McCauley's testimony on this point. Nor do I
credit Wilkie's testimony that two workers had com-
plained to him that work performed by them during a
lunch hour had gone unpaid. I credit McCauley over
Wilkie on this point also. 2 I am unpersuaded that Re-
spondent refused or failed to furnish his eye protection as
he claimed. Rather, I credit McCauley who testified that
he had offered Wilkie safety glasses on a day he injured
his eye while working with a pick "in an inch or two of
slurry." I credit McCauley's testimony over the contrary
testimony of Wilkie that McCauley assigned the same
kind of work to Wilkie as he did to other laborers and
that Wilkie took pictures during work time. Further, I
am unable to credit Wilkie's claim that Superintendent
Bragdon stated at a safety meeting attended by approxi-
mately 25 employees, including Foreman McCauley and
Superintendent Cruz, that he would fire anyone who
called OSHA or a union business agent. I credit Brag-
don's testimony that he did not make such a statement
and his specific testimony that he had stated at safety
meetings that "nothing will be held against a man for re-
porting an unsafe condition."
The testimony of Business Agent James Laney, who
was called by the General Counsel in support of the
complaint, was significant in the lack of support it gave
to the General Counsel's cause and the Charging Party
Kenneth Wilkie's claim that he was discharged for union
activities. Laney's testimony is persuasive that Respond-
ent did not interfere with Wilkie's duties as a shop stew-
ard. Significantly, Laney testified that Stolte was more
cooperative than most employers and that he could
1 The General Counsel also stated in his brief, without a record basis
therefor, that
[i]t is clear that Neeson fabricated a variety of reasons for Wilkie's
termination that not even McCauley had thought of, and McCauley
is the supervisor who allegedly onginated the idea to terminate
Wilkie Further, McCauley came up with several different reasons
for Wtlkie's termination at the time of the investigation of the instant
case that McCauley couldn't remember during his testimony
2 According to McCauley, Wilkie told him, "Don't give me any shit or
you'll pay me, too"
always resolve problems at the project manager's level if
unable to do so with lesser officials. The most telling
part of Laney's testimony was the support he gave on
cross-examination to defense evidence presented later.
Laney agreed that McCauley had told Laney prior to
Wilkie's discharge of a change in Wilkie's work habits
and that the company might terminate him. Laney testi-
fied that he spoke with Superintendent Bragdon about
whether there had been a change in Wilkie's work habits
after being designated steward. Laney agreed that there
was an occasion when he observed Wilkie stand or walk
around for a period of probably 15 or 20 minutes. Laney
said he had made such observations from a Thrifty Drug
store next to the jobsite. Superintendent Bragdon testi-
fied that he had discussed Wilkie's work habits with
Business Agent Laney on two occasions and that Laney
had offered these comments:
Well, the first time that Mr. Laney and I talked
about it he told me that he had informed Mr. Wilkie
what his duties were as a steward and that he also
owed the company responsibility for a day's work
for a day's wages. Or words to that effect . . .
The second time was when Mr. Laney informed me
that he had sat over in the parking lot at Thrift
Drug Store and observed Mr. Wilkie for a rather
lengthy period of time doing nothing.
Wilkie, of course, could properly complain about what
he believed to be unsafe working conditions, including
inadequate shoring of footings, inadequate access to med-
ical treatment, and inadequate equipment or clothing. He
could properly inquire about the union status of other
workers peformmg work on the jobsite. He could prop-
erly inquire as to whether employees who worked
through their lunch period were compensated as provid-
ed for under the collective-bargaining agreement. He
could properly protest that Respondent had improperly
assigned nonlaborers to perform laborers' work. Wilkie
was able to make such complaints, inquiries, and protests,
however, and I remain unconvinced that Respondent ter-
minated him for doing so. Respondent had a right to
expect Wilkie would perform at a reasonable rate of
speed while employed as a laborer although also serving
as a steward, and it was not unlawful for Respondent to
discharge him for failing to do so.
I have carefully reviewed the record and adopt and
affirm all of the findings, conclusions, and recommended
Order set forth in my decision of August 31, 1983