Batchelor Electric Co.

National Labor Relations Board - Board Decisions

Mar 5, 1981

254 N.L.R.B. 1145 (N.L.R.B. 1981)

d/b/a
9-
and
Board
Eecision
finding^,^
conc:lusions
adopt
Pursuznt 10(c)
c'rders Batche-
d/b/3
and
Law
-
' fini
continuancc
Janui~ry
18.
w:eks
Mweover,
t Shisler's
Administra.ive
unles,
tat Srandord Wan Pduers,
Inc.. NI.RB (1950), 188 F.2d
elamined lind
~ ~ A T ~ O N A L
discrimi-
nat?
WILL
BATCHE-
CO., PROPERIE-
TORSHIP
Administrative
8(a)(l)
1;
$50,000
11.
Facls
Respon-
1145 BATCHELOR ELECTRIC CO.
Robert Batchelor Batchelor Electric Co., a
sole properietorship and Danny Loux. Case
CA-13946
March 5, 1981
DECISION A N D ORDER
On August 28, 1980, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions a supporting brief.

The
has considered the record and the at-
tached in light of the exceptions and brief
and has decided to affirm the rulings,'
and of the Administrative Law Judge
and to his recommended Order.
ORDER
to Section of the National Labor
Relation:; Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby that the Respondent, Robert
lor Batchelor Electric Co., a sole proprietor-
ship, Cincinnati, 'Ohio, its officers, agents, succes-
sors, assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Judge.
We no merit to Respondent's exception to the Administrative
Law Judge's failure to allow Respondent a continuance in order to pre-
sent the tertimony of the bookkeeper, Alma Shisler. The request for a
referred to by Respondent was filed with the Region on o r
about 16, 1980, and, in the absence of good cause shown, was
denied by the Regional Director for Region 9 on January 1980,
almost 2 before the opening of the hearing; further, Respondent
did not ask the Administrative Law Judge for a continuance during the
hearing. Respondent has failed to show any reason why it
could not ave taken steps to insure appearance at the hearing.
Therefore. we deny its request to remand the case and reopen the hear-
ing.
Respordent has excepted to certain credibility findings made by the
Law Judge. It is the Board's established policy not to
overrule ar administrative law judge's resolutions with respect to credi-
bility the clear preponderance of all of the relevant evidence con-
vinces us t the resolutions are incorrect. Dry

91
544 enfd. 362 (3d Cir. 1951). We have
carefully the record and no basis for reversing his findings.
APPENDIX
LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT discharge or otherwise
against employees in regard to their hire
to tenure of employment o r any term or condi-
tion of employment because they engage in
prctected concerted activities.
254 NL RB No. 156
I NOT in any like or related manner in-
terfere with, restrain, o r coerce my employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act,
as amended.
I WILL offer Danny Loux immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiv-
alent job, without prejudice to his seniority or
other rights or privileges previously enjoyed,
and I WILL make him whole, with interest, for
any loss of earnings he may have suffered as a
result of his discharge.
ROBERT BATCHELOR D/B/A
LOR ELECTRIC A SOLE
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Law Judge: The
charge in this case was filed on June 5, 1979, by Danny
Loux, an individual. On July 18, 1979, the complaint
issued alleging that Respondent violated Section
of the National Labor Relations Act, as amended, by dis-
charging Loux because he engaged in a protected con-
certed work stoppage. In its answer Respondent denies
the commission of any unfair labor practices.
A hearing was held before me in Cincinnati, Ohio, on
February 1980. Briefs have been received from the
General Counsel and Respondent.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the building and construc-
tion industry as an electrical contractor. During a repre-
sentative 1-year period Respondent received in excess of
for services performed for business enterprises
within the State of Ohio, including the city of Cincinnati,
which in turn annually purchased and received goods
and materials valued in excess of $50,000 directly from
points outside the State of Ohio. I find that Respondent
is an employer engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
THE ALLEGED UNFAIR LABOR PRACTICES
A. The
1. Introduction
Danny Loux was employed by Respondent as an elec-
trician from 1977 until his discharge May 22, 1979. The
General Counsel contends that Loux was discharged be-
cause he engaged in a work stoppage to protest
dr:nt's
dis-
ctarged
awarded
pr'3jects
thr:
law.
hours
The
ga \ e
7:30
a.m
Res3ondent
othe'rs
their
d~
Ftom I979
other
~ r o j e c t
hi:
Deerlield
periods2
Du-ing ac-
curac.1
3aid
dropp-d
' Re\xlndent's res~dential
Iif~ur rn $8 $2.000
c~ty.funied $4,000, cet
w~rgc rales to
I.our so Batchelor
Irtm
lhur vforked cred-
~ted 1.0u.1 QS his
1979,4
Batche-
them
1
work-
week.5 employ-
portion back-
after wirh
that
d ~ d
40 In
19
rate residential
28
sufficient
prevatling
In
Loux's
tmlimony
underpa~d
computa-
tlon.
1146 DECISIONS O F NATIONAL LABOR RELATIONS HOARD
failure to pay him as required by agreement and
prevailing wage laws. Respondent contends that he
Loux because Loux was consistently tardy and
fa led to follow orders.
Respondent bids on both residential and Government
ccntracts. During Loux's employment Respondent was
contracts for several projects for the city of
Cincinnati. Wage rates for electricians working on these
were established by agreement with the city at
prevailing rate of $14.64 per hour, as required by
Wage rates on Respondent's residential work were
set by Respondent for each individual electrician and
were not subject to prevailing wage laws. Respondent
paid Loux $4.50 per hour when working on residential
projects.' Electricians' weekly pay varied depending on
the projects they were assigned to and the number of
they worked.
electricians kept records of their hours and the
prcjects on which they worked. Every week they wrote
thir information on cards or slips of paper which they
to Respondent who in turn gave them to his book-
keeper, a certified public accountant, who prepared the
payroll. On occasions when Respondent did not appear
at jobsites, employees telephoned their hours in to him
or to the accountant.
Respondent's normal working hours were from
to 4 p.m., but Respondent had no fixed policies re-
garding tardiness o r absenteeism. Some employees called
if they were going to be late or absent, but
merely reflected their tardiness or absence on
timesheets, and Respondent relied on all employees
to so.
2. The termination of Danny Loux
January on, Loux worked as an electrician
at the District No. 2 Police Station, a city project on
which the prevailing wage rate was required. In January
and possibly February he also worked on two or three
prevailing wage projects and on some residential
jobs. In March Loux was assigned permanently as the
elect-ician in charge at the police station project after
the architect told Respondent Batchelor that he
was required to have an electrician present on the job at
all tirnes. From then until Loux was discharged he spent
all working time at the police station project, except
for a few occasions when he was sent by Batchelor to a
project, also a prevailing wage job, to work
for short
1978 Loux questioned Batchelor about the
of the computation of his weekly pay. Batchelor
told him that his wages were correct and that employees
were at different rates for different jobs. Loux then
the subject, but in November 1978 he received
three checks from Respondent for back wages as a result
wage rates for work ranged from $3.50 per
per hour. On federally funded contracts less than or
contracts less than contractors were also free to
without regard prevailing wage laws.
testified. did not testify as to Loux's assignments
March on, nor was there any other testimony to contradict Loux
he only on prevailing wage jobs after February. I have
to work assignments.
of an investigation by the U.S. Department of Labor,
Employment Standards Administration."
After Loux started to work exclusively on prevailing
wage work, he received paychecks on March 31 and
April 7, reflecting pay for 3 days' work at the
prevailing rate and for 2 days' work at the residential
rate even though he was entitled to be paid at the pre-
vailing rate for all work performed. After receiving the
first of these checks Loux attempted unsuccessfully to
reach Batchelor to complain. When he received the
second check, it was accompanied by a note in
lor's handwriting in which he stated that Loux expected
too much money and that another employee, Bill Hug,
was willing to work for 3 days at the prevailing wage
rate and 2 days at his regular rate. In the note Batchelor
also asserted that Loux cared only for himself, that he
should stop complaining to others because it got back to
him, and that he could not continue to lose money on
jobs that Loux was working on. After receiving the note,
Loux finally spoke with Batchelor by telephone and told
him that if he did not straighten the situation out imme-
diately Loux was going to quit. After a further conversa-
tion in which Loux again said that he would not work
for the lower rate, Batchelor took him to the bookkeeper
and instructed her to make out two additional checks for
the periods in question. Loux took but later real-
ized that the additional pay he received brought him up
to the prevailing rate for only day of each of the pay
periods. Thereafter, Respondent continued to pay Loux
at the prevailing rate for approximately 4 days' work and
at the residential rate for the remainder of each
Loux complained about his pay to other
At that time employees John Croley and Joe Hubsch also received
back wages. Croley repaid Respondent a substantial of his
pay talking other employees about the possibility of being laid
off if he did not return the money.
All dates which appear hereafter occurred in 1979 unless otherwise
stated.
Loux initially testified he was paid for 4 days at the prevailing
rate and I day at the residential rate. Later he conceded that he not
always work hours a week and that there was some variation his
weekly hours. The only pay records received in evidence show that for
the week ending May Loux was paid for 34 hours at the prevailing
and 5 hours at the rate. For the week ending May 12 he
was paid for hours at the prevailing rate and 8 hours at the residential
rate. For the week ending May 5 Loux was paid for 35 hours at the pre-
vailing rate and 5 hours at the residential rate. While it thus appears that
the number of hours for which Loux was paid at each rate varied from
week to week. I do not find the discrepancies between Loux's initial and
later testimony to warrant discrediting him or to reject the
basic thrust of his testimony that each week he was paid at the residential
rate for a portion of the work he had performed on prevailing rate jobs.
As noted above. Batchelor did not contradict Loux's -testimony that he
performed only rate work after March I . While Batchelor tes-
tified that he promptly corrected all complaints about mistakes pay
computations and that, with the exception of complaint about his
pay in early April, all Loux's other complaints were about job assign-
ments and not about pay. I do not credit Batchelor. His testimony in gen-
eral was vague, inconsisrent, and punctuated by frequent disclaimers of
memory or knowledge. His concession that the note accompanying
Loux's April 7 paycheck contained false statements and his totally in-
credible explanation for that note further serve to undermtne his credibil-
ity. Moreover. the timing of that note, its contents, and the fact that
Loux's pay was adjusted corroborate Loux's that Batchelor
had Loux for work performed on prevailing rate jobs and that
the underpayment was not the result of inadvertent errors in
CO. 1147
ees spolte
jobsite.
cornplaints
Saturiay,
told
others6
Mon'iay,
on
knew
jobsite,
tel~phone
calls.7
:!
coworker:
day.8
Findings
pr:ctice
continuetl
to
his
--
' S J
from
receivi~~g
hi!,
' testified
ad(led
ievice.
LOUX ! o
rn Hering
c~)rnpletely
Hering's LOUX'S
any
to
p r o t e c t i ~ n . ~
Act.l0
21,
during
the-evi-
21
Cu.rhion Co., Inc., SeljCycle &
Inc.. (1978): Conrtruction Inc.,
Krrspy Corp..
Unrted Santa'r Bakery,
I058 G.V.R. . Inc..
' O Purnrto Rico F d Produccc Corp.. rt ob.
F.2d (1st
BATCHELOR ELECTRIC
and with Batchelor about i t whenever Batche-
lor visited the Batchelor never responded direct-
ly to his but made excuses and left.
On May 19, Loux telephoned Batchelor at
home and him that, if Batchelor were not going to
pay him for 5 days' work at the prevailing wage rate, he
would stay home 1 day the following week and work
only the 4 days that Batchelor was willing to pay him at
the prevailing wage. Loux said that he would not report
to the job on the following Monday. Batchelor said that
they needed him at the police station job 5 days a week,
and Loux replied that Batchelor would have to come up
with the msney for him like he did for
On May 21, Loux went to the District No. 2
Police Station project early in the morning and asked a
carpenter the site if there was any work to be done
that day by others that would require Batchelor's pres-
ence. When the carpenter replied that there was none
that he of, Loux told the carpenter that, if Batche-
lor came to the he should tell Batchelor that
Loux had gone home. Loux then left. Batchelor tried to
call Loux at his home that day and left messages on
Loux's answering machine, but Loux did not
return his
When Loux reported for work the next day at the Dis-
trict No. Police Station at his regular time, two of his
told him that he had been fired. Later Batche-
lor arrivetl at the project and Loux asked him what was
going on. Batchelor told him that he did not need him
any more and that he was fired for not coming to work
the previc us
B. Concluding
The first question to be answered is whether Loux's
refusal to work on May 21 was protected concerted ac-
tivity. Although Respondent contends that Loux's ab-
sence from work that day was simple absenteeism, the
evidence supports the conclusion that Loux withheld his
services that day because of dissatisfaction with Respon-
dent's of paying him at the residential rate for a
portion of the time spent by him on prevailing rate work.
Thus, I tave credited Loux that from March on he per-
formed cnly prevailing rate work and that Respondent
to pay him at the residential rate for some of
the hour! he worked. Further, I have found that he com-
plained Batchelor about it and that on the Saturday
before discharge he told Batchelor that if he were not
going to be paid for 5 days at the prevailing rate he
might as well work only 4 days a week and would not
Loux testified. Batchelor initially testified he never received a call
Loux on Saturday, May 19, but later testified he could not remem-
ber any such phone call. In light of Batchelor's professed lack
of memory as well as the general deficiencies in his testimony, I have not
credited initial denial and have credited Loux.
Loux that he did not remember receiving any messages that
day but that his small child may have tampered with his telephone
answering
testified, and Batchelor also testified that he spoke to Loux
and told h that he was no longer needed. Employee Bill testi-
fied to a different sequence of events on that day. which was
internally inconsistent and in conflict with the testimony of John Croley.
Loux, and Batchelor. I have not credited version of dis-
charge.
work on the following Monday. When Batchelor said
that he was needed, Loux told Batchelor that he would
have to pay him the prevailing wage. Batchelor gave no
indication that he would change his pay practices. 1 find
that Loux's reason for not working on May 21 was to
protest Batchelor's refusal to pay him at the prevailing
rate for all the work he performed and that Batchelor
was aware of that reason.
While Loux's work stoppage was not joined by any
other employee Loux had discussed his complaint about
Respondent's pay practices with other employees, and
Batchelor's April note to Loux shows both awareness
and disapproval of those discussions. Moreover, apart
from direct involvement of Respondent's employees
in Loux's protests, the objective sought by Loux was
gain Respondent's compliance with contractual and legal
requirements that Respondent pay prevailing wages on
Government projects. That objective was a matter of
common interest and concern to all employees. In the
absence of evidence that other employees did not share
in the concerns expressed by Loux, his protest is proper-
ly to be viewed as concerted activity for the purpose of
mutual aid or Loux's work stoppage in fur-
therance of his protest of Respondent's pay policies was
thus protected concerted activity within the meaning of
Section 7 of the
The remaining question to be answered is whether
Loux was discharged for his protected concerted activity
o r for other reasons. While Respondent contends that
Loux was discharged for consistent tardiness and failure
to follow orders, the evidence is to the contrary. Apart
from Loux's refusal to report for work on May there
is no evidence that he failed to follow orders his
employment by Respondent. As for tardiness,
dence does not establish that Loux's record of tardiness
differed substantially from that of any other employee.
Respondent had no established policies with respect to
tardiness and had not disciplined Loux or any other em-
ployee for tardiness before Loux's discharge. Indeed it
appears that until Loux was discharged Respondent left
it to the employees to police their own hours and to ac-
count for any tardiness by reporting only the time they
actually worked as a basis for payment. I find that the
reasons advanced by Respondent for Loux's discharge,
other than his refusal to work on May 21, are without
foundation and were not the true reasons for his dis-
charge.
In any event, even assuming that Loux's prior tardi-
ness was excessive and that he previously may have
failed to follow orders, Batchelor's own testimony estab-
lishes that it was Loux's absence on May 21 which trig-
gered the discharge. He testified that if Loux had re-
turned his calls on May 21 and explained his absence he
would not have discharged him. This testimony makes it
clear that if Loux had not been absent on May he
Alleluia 221 NLRB 999 (1975): Marine
Distributor Co.. 237 NLRB 75 Bmn Co..
241 NLRB 276 (1979): Kreme Doughnut 245 NLRB 1053
(1975); Investment Corporation d / b / a 249 NLRB
(1980). See also 201 NLRB 147 (1973).

See
242 NLRB 899 (1979).
enforcement denied in part 619 153 Cir. 1980).
DECISIONS
Batche-
8(a)(l)
Act.
Having
ordered
14s dis-
Respon-
rein-
stalement
exi!,ts,
his
amount
(discharge
statement,
F. W.
Wmlworth (1950),
Steer (1977)."
ncstice office,
jobsites
reconmend
cur-
rentl:~
Order.I2
Upon
withill 2(2), (6),
" Ste, lsis & Co.,
1 2 Se,e K Inc.. supm
B(a)(l) 2(6)
l q c )
I.
backpay
'
Sec. 102.46
Sec. adoptedby
''
1148 OF NATIONAL LABOR RELATIONS BOARD
would not have been discharged. When this is consid-
ered with the finding above that Batchelor knew the
reason for Loux's absence and the evidence of
lor's resentment against Loux's complaints about his pay
found in the note accompanying Loux's April 7 pay-
check, the conclusion is compelled that but for Loux's
absence to protest Respondent's pay practices on May 21
he would not have been discharged. As his absence was
part and parcel of his protected concerted activities, it
follows that Loux's discharge was caused by his protect-
ed concerted activities and violated Section of the
111. THE REMEDY
found that Respondent has engaged in unfair
labor practices, I shall recommend that Respondent be
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
I have found that Respondent unlawfully
chr rged Danny Loux, I shall recommend that
der t be ordered to offer him immediate and full
to his former job or, if that job no longer
to a substantially equivalent job, without prejudice
to seniority o r other rights and privileges. I shall fur-
ther recommend that Respondent be ordered to make
him whole for any loss of earnings he may have suffered
as result of his discharge by payment to him of the
he normally would have earned from the date of
his until the date of Respondent's offer of rein-
less net earnings, to which shall be added in-
terest, to be computed in the manner prescribed in
Company, 90 NLRB 289 and Florida
Corporation, 231 NLRB 651
As Respondent's employees report directly to jobsites,
it would be of little value to require Respondent to post
a at his and, as Respondent's jobs are of
varying and often short duration, posting of notices at
would also accomplish little. Accordingly, I shall
that Respondent provide signed copies of a
notice and names and addresses of employees so that no-
tices can be mailed to all those who were employed by
Respondent at the time of Loux's discharge or are
employed at the time of compliance with the
the basis of the above findings of fact and the
entirt: record in this case, I make the following:
1. Respondent is an employer engaged in commerce
Act.
the meaning of Section and (7) of the
generally,
G. R.,
Plumbing
at 154.
Heating 138 NLRB 716 (1962).
2. By discharging Danny Loux because of his protect-
ed concerted activities, Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Sections and and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, I hereby issue the following recommended:
The Respondent, Robert Batchelor d/b/a Batchelor
Electric Co., a sole proprietorship, Cincinnati, Ohio, his
agents, successors, and assigns, shall:
Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire or tenure of employ-
ment or any term or condition of employment because
they engage in concerted activities protected by Section
7 of the National Labor Relations Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Danny Loux immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of his discharge in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of due
under the terms of this Order.
(c) Furnish to the Regional Director for Region 9 the
names and most recent addresses in its possession of all
employees employed by Respondent on May 21, 1979,
and all those employed currently and sign a sufficient
number of copies of the attached notice marked "Appen-
dix"" for mailing by the Regional Director to each of
these employees.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In the event no exceptions are tiled as provided by of
the Rules and Regulations of the National Labor Relations Baord, the
findings, conclusions, and recommended Order herein shall, as provided
in 102.48 of the Rules and Regulations, be the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words is the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Coury of Appeals Enforcing an
Order of the National Labor Relations Board."